JUNE 1994

COMMISSION DECISIQNS AND ORDERS
06-02-94
06-07-94
06-09-94
06-14-94
06-20-94
06-20-94
06-20-94
06-21-94
06-27-94

North American Slate, Inc.
W.S. Frey Company, Inc.
Jim Walter Resources, Inc .
Fort Union, Ltd .
Contest of Respirable Dust Samples
Mid-Continent Resources, Inc.
Mid-Continent ·Resources, Inc .
Randall Patsy v . Big "B" Mining Company
Thunder Basin Coal Company

YORK 93-156-M
VA
93-59-M
SE
94-383
WEST 94-120
MASTER 91-1
WEST 91-421
WEST 91-168
PENN 94-132-D
WEST 94-238-R

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

1205
1207
1209
1212
1215
1218
1226
1237
1239

Consolidation Coal company
WEVA 94-235-R
Dolese Brothers Company
CENT 92-110 - M
BethEnergy Mines, Inc.
PENN 93 - 205
Dags Branch Coal Company
KENT 93-994
Roy Farmer and others v. Island Creek Coal VA
91-31-C
Tug Valley Coal Processing Co.
WEVA 94-26
Jim Walter Resources, Inc.
SE
93-367-A
Clark Wiiliamson v. Elkay Mining Co.
WEVA 93-406-D
James DeRossett v. M & MB Coal Company
KENT 94-285-D
American Asphalt Paving
PENN 93-428-M
Consolidation Coal Company
WEVA 94-157-R
Douglas DeRossett v . Martin County· coal
KENT 94-278-D
Sec. Labor on behalf of Cletis Wamsley and
others v . Mutual Mining, Inc.
WEVA 93-394-D
RNS Servi~es, Inc./Mase Transportation
PENN 93-343
Asarco, Incorporated
WEST 94-443-RM
Mississippi Potash, Inc.
CENT 92-212-M
Intermountain Sand Company
WEST 93-95-M
Kamtech Incorporated
WEST 93-360-M
Beech Fork Processing, Inc.
KENT 93-659
Larry Swift, Et al. v . Consolidation Coal PENN 91-1038-D
PENN 93-22
·Power Operating Company, Inc.

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

1241
1247
1251
1259
1261
1262
1264
1271
1272
1274
1286
1303

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

1304
1322
1328
1330
1333
1341
1346
1374
1380

ADMINISTRATIVE LAW JUDGE PECISIQNS
06-01-94
06-02-94
06-06-94
06-10-94
06-10-94
06-13-94
06-14-94
06-20-94
06-20-94
06-21-94
06-22-94
06~24-94

06-24-94
06-27-94
06-28-94
06-29-94
06-29-94
06-29-94
06-30-94
06-30-94
06-30-94

ADMmIS'I'RATIVE LAW JUDGE ORDERS
06-15-94
06-16-94

Kiewit Western Company
Consolidation Coal Company

WEST 94-213-M
WEVA 94-57

i

Pg. 1401
Pg. 1403

JUNE

1994

Review was granted in the following cases during the month of June:
Secretary of Labor, MSHA v. North American Slate, Docket No. YORK 93-156-M.
(Chief Judge Merlin, unpublished Default, April 25, 1994)
Secretary of Labor, MSHA v. Fort Union, Ltd., Docket No. WEST 94-120.
Amchan, unpublised Settlement, May 1, 1994)

(Judge

Secretary of Labor, MSHA v. Blue Bayou Sand & Gravel, Docket No .
CENT 93-216-M .
(Judge Weisberger, May 10, 1994)
Thunder Basin Coal Company v. Secretary of Labor, MSHA, Docket Nos.
WEST 94-238-R, WEST 94-239-R.
(Judge Amchan, May 11, 1994)
New Warwick Mining Company v. Secretary of Labor, MSHA, Docket No.
PENN 93-199-R.
(Judge Amchan, May 12, 1994)
Randall Patsy v. Big "B" Mining Company, Docket No. PENN 94-132-D.
Feldman, May 13, 1994)

(Judge

Secretary of Labor, MSHA v. Thunder Basin Coal Company, Docket No.
WEST 94-148-R, WEST 94-303.
(Judge Amchan, May 18, 1994)
Secretary of Labor, MSHA v . U.S. Steel Mining Company, Docket No.
WEVA 92-783.
(Judge Fauver, May 25, 1994)
Review was denied in the following case during the month of Jµne :
Secretary of Labor, MSHA v. W.S. Frey Company, Inc., Docket No. VA 93-59-M.
(Judge Barbour, April 28, 1994 - case was remanded for correction of clerical '
order)

ii

COMMISSION DECISIONS AND ORDERS

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

June 2, 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No . YORK 93-156-M
vs.
NORTH AMERICAN SLATE, INC.

ORDER

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §801 et seq. (1988) ("Mine Act"). On April 25, 1994, Chief Administrative Law
Judge Paul Merlin issued an Order of Default to North American Slate, Inc. ("North American';)
for failing to answer the proposal for assessment of civil penalty filed by the Secretary of Labor
("Secretary") and the judge's January 27, 1994 Order to Show Caus_e. The judge assessed the
civil penalty of $50 proposed by the Secretary.
The judge's jurisdiction in this matter terminated when his decision was issued on April
25, 1994. Commission Procedural Rule 69(b), 29 C.F.R. §2700.69(b) (1993). Under the Mine
Act and the Commission's Procedural Rules, relief from a judge's decision may be sought by
filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. §823(d)(2);
29 C.F.R. §2700.70(a). On May 25, 1994, North American filed a timely petition for
discretionary review. North American avers that the default was improperly entered after it "had
attempted to respond to the citation .. . by mailing a notice of contest to [the] Secretary in
accord with the Notice of Assessment." Pet. at 1.

1205

We grannhe p·etition. ··on the basis of the present record, we are unable to evaluate the
merits of North American's position. Accordingly, we reopen this matter, vacate the judge's
default order, and remand this matter to the judge, who shall determine whether default is
warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).

~. ?~

MI)TLJordan, C~

/ ./

/J/.~n(
f ~(4/

Y~/~ Y

Richard V. Backley, Commissiener

Distribution
Rosemary A. Macero, Esq.
Morrison, Hahoney & Hiller
250 Summer Street
Boston, MA 02210
David L. Easkin, Esq.
Office of the Solicitor
U.S. Department of Labor
One Congress .Street, 11th Floor
P.O. Box 8396
Boston, MA 02114
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., 6th Floor ·
Washington, D.C. 20006

1206

FEDERAL· MINE -SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 8TH FLOOR
WASHINGTON, D.C. 20008

June

7, 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
DOCKET Nos. VA 93-59~M
VA 93-80-M
VA 93-89-M

v.

W.S. FREY COMPANY, INC.

On May 26, 1994, w.s. Frey Company, Inc. filed a petition for
discretionary review with the Federal Mine Safety and Health Review Commission
under section ll3(d)(2) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. S 801 et seq. at S 823(d)(2). That section provides that review of a
decision of an Administrative Law Judge may be granted upon specified grounds
and upon the affirmative· vote of two Conunissioners. Such review is
discretionary. 30 u.s.c. S 823(d)(2)(A). No two members .o f the Commission
voted to grant the petition or otherwise order review under 30 u.s.c.
S 823(d)(2)(B). Consequently, the decision of the Administrative Law Judge is
final as of 40 days after its issuance. 30 u.s.c. S 823 (d)(l).
Commission Procedural Rule 69(c), 29 C.F.R. S 2700.69{c)(l993), permits
correction of clerical errors in a judge's decision. In his de.c ision, the
judge vacated citation No. 4083442, involving 30 CFR 56.18009, and affirmed
citation No. 4083445, involving a violation of 30 CFR 56.12066. ALJ Slip Op.
at 37, 44-45 and Exhibits P-5 and P-13. Pursuant to Rule 69(c), we remand
this case to the judge to cor~ect the clerical errors at pp. 44, and 49-50 of
his decision where he references citation No. 4083445 to a violation of 30
C.F.R. S 56.18009, and describes citation No. 4083442, rather than citation
No. 4083445, as the citation setting . forth the affirmed violation. ALJ Slip
Op. at pp . 44, 49-50.

1207

Accordi1!.9.~Y ~.- .""!~ - ~~in.and this aspect of the case to the judge for
correction of clerical errors.

.· ·:.-.i/ . • ...........~

,/

---<:. . ;:.~)~;.:,__-<~-/·--

!, / .

(

C ·;·.-(... ;;.::-~.:.... i:.:.. ::..-I

Richard V. Backley, Commissioner

:,...--· _..

. /:
·.J

.L
Arlene Holeh, Commissioner

Distribution
Thomas Moore Lawson, Esq .
Hazel & Thomas, P . C.
107 N. Kent Street, 4th Floor
P. O. Box 2740
Winchester, VA 22604
W. Christian Schumann, Esq .
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlin~ton, VA
22203
Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1208

FEDERAL MINE SAFETY A.N D HEALTH REVIEW COMMISSION
·-....

. .. .

-- - - .

1730 K STREET NW, 6TH FLOOR
WASHINGTON, O.C. 20006

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

June 9, 1994

Docket SE 94-383
A.C. # 01-01401-04000
SE 94-384
A.C. # 01-01322-03949
SE 94-389
A.C. # 01-01401-03988
SE 94-390
A.C. # 01-01401-03999

v.

JIM WALTER RESOURCES, INC.

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

ORDER
BY THE COMMISSION:
In these matters arising under the Federal Mine. Safety and Health Act of
1977, 30 U. S.C. § 801 et seq. (1988)("Mine Act" or "Act") , Jim Walter
Resources, Inc. ("JWR") filed with the Commission motions seeking to reopen
uncontested civil penalty assessments that had become final orders of the
Commission pursuant t .o section lOS(a) of the Mine Act, 30 U.S.C . § 81S(a).
The Commission received the motions on May 9, 1994. As the basis for its
motions, JWR relies upon Fed. R. Civ. P. 60(b)("Rule 60(b)"). The Secretary
of Labor filed responses requesting evidentiary hearings before an
administrative law judge to determine whether JWR's motions should be granted .
We grant the motions in part.
JWR states in each motion that it failed to file with the Department of
Labor ' s Mine Safety and Health Administration ("MSHA") a "Green Card" notice
of contest challenging MSHA's proposed civil penalties within the 30-day
period set forth in section lOS(a); that its counsel had an unusually heavy
case load at the · time and that there was a delay in the interoffice
transmittal of the penalty assessments to him; and that it has implemented a
procedure to correct problems with its interoffice mail. JWR asks the
Commission to reopen these matters pursuant to Rule 60(b) so that it may file
its notices of contest. The proposed penalties have not been paid.
The Secretary's response requests a hearing to determine, inter alia,
whether the Commission has jurisdiction to reopen these cases and, if so,
whether JWR has satisfied the requirements for reopening under Rule 60(b).

1209

Section ~05(a) of the Mine Act requires that, after issuing a citation
or withdrawal eTd&r for· an alleged violation, the Secretary notify the
operator of "the civil penalty proposed to be assessed." 30 U.S.C. § 815(a).
Section lOS(a) allows the operator 30 days to contest the proposed penalty and
further provides that, if the operator fails to contest it, the assessment
"shall be deemed a final order of the Commission and not subject to review by
any court or agency. 11 Id.
JWR failed to contest the proposed assessments within 30 days, and t
accordingly, they have become final orders of the Commission. The Commission
has held that, in appropriate circumstances .and pursuant to Rule 60(b), it
possesses jurisdiction to reopen uncontested assessments that have become
final under section 105(a). Jim Walter Resources. Inc., 15 FMSHRC 782, 787-90
(May 1993)("JR&"); see also, Jim Walter Resources. Inc., 16 FMSHRC 721, 722
(April 1994). Rule 60(b) relief from a final order is available in
circumstances such as a party's mistake, inadvertence, or excusable neglect,
but cannot be used to relieve a party from the consequences of its "deliberate
litigation choices." JWR, 15 FMSHRC at 790 .
On the basis of the present record, we are unable to evaluate the merits
of JWR's position. In the interest of justice, we reopen these matters and
remand them for assignment to a judge to determine whether JWR has met the
criteria for relief under Rule 60(b). The judge shall take evidence with
respect to the reasons for JWR's failure to file timely contests. If the
judge determines that relief under Rule 60(b) is appropriate and permits JWR
to file notices of contest, these cases shall proceed pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F. R. Part 2700.
For the foregoing reasons, JWR's motion is granted in part and these
matters are remanded for assignment.

;i7~
_R_i_c_h_a_r_d_V_._B_a_c_k_l_e_y_,_C_o_mm_rlSSiOller_Y

Arlene Holen, Commissioner

1210 '

Distribution

--~ ·

. -- ·-- .

R. Stanley Morrow, Esq • .
Jim Walter Resources, Inc.
P.O . Box 133
Brookwood, AL 35444
William Lawson, Es.q .
Office of the Solicitor
U.S. Department of Labor
150 Chambers Building
100 Centerview Drive
Birmingham, 4J. 35216
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
David M. Smith, Esq.
J . Alan Truitt; Esq.
Maynard, Cooper & Gale; P.C.
1901 Sixth Avenue North
2400 AmSouth/Harbert Plaza
Birmingham, AL 35203
Chief Administrative Law Judge Pa~l Merlin
Federal Mine Safety and Health Review Connnission
1730 K Street, N.W., Suite 600
Washin3ton, D.C. 20006

1211 .

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

June 14, 1 994

FORT UNION, LTD.

v.
Docket No. WEST 94-120
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

DIRECTION FOR REVIEW
~

This civil penalty proceeding arises under . the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. S 801 et seq. (1988). On May l, 1994
Administrative Law Judge Arthur J. Amchan issued a Decision Affirming
Settlement based upon representations made by the Secretary of Labor's counsel
in its Motion to Approve Settlement and Order Payment. For the reasons that
follow, we vacate the Decision Approving Settlement and remand the case for
further proceedings.
The judge's jurisdiction in this matter. terminated when his decision was
issued on May l, 1994 . Commission Procedural Rule 69(b), 29 C . F.R.
S 2700.69(b) (1993). Under the Mine Act and the commission's Procedural
Rules, relief from a judge's .decision may be sought by "filing a petition for
discretionary review within 30 days of its issuance . 30 u . s.c. S 823(d)(2);
29 c.F.R. s 2700.70(a) .
On May 31, 1994 Fort Union Ltd. ("Fort Union") timely filed a petition
for discretionary review asserting that "the parties did not agree to the
language to be set out in the Motion to Approve Settlement." PDR at 2. In
support, Fort Union has attached a copy of a letter it received from the
Secretary's counsel, dated April 22, 1994, the same day the Secretary filed
with the judge the motion to approve settlement . The secretary's letter to
Fort Union conveyed a copy of the motion to approve settlement and stated, "If
• • • you believe the motion does not correctly state your intentions, you
should immediately notify the Administrative Law Judge." On April 29, 1994,
Fort Union wrote to the judge, objecting to the settlemene motion .

1212

"SettlemJ!l!.~t _9.f . contested issues is an integral part of dispute
resolution under the Mine Act." Pontiki Coal Corp., 8 FMSHRC 668, 674 (May
1986). Section llO(k) of the Mine Act provides that no contested proposed
penalty "shall be compromised, mitigated, or settled except with the approval
of the Commission." 30 u . s . c. S 820(k). "(T]he record must reflect and the
Commission must be assured that a motion for settlement, in fact, represents a
genuine agreement between the parties, a true meeting of the minds as to its
provision." Peabody Coal Co., 8 FMSHRC 1265, 1266 (September 1986).

Apparently, Fort Union does not dispute that it agreed to settle the
proposed penalties-for the amount approved by the judge, but there is
disagreement between the parties as to the terms upon which the settlement is
acceptable. Fort Union was not a signatory to the agreement it now disputes,
and further consideration by the judge is necessary. see Peabody, 8 FMSHRC at
1267.
For the reasons set forth above, we vacate the judge's decision
approving the settlement. 1 We remand this matter .to the judge for appropriate
further proceedings.

1

The Conunission was unable to complete action in this matter before
the 40th day following the judge's decision (30 u.s.c.
S 823(d)(l)), and accordingly, reopens this matter in order to
issue this direction for review.

1213

Distribution
J . Fred McDuff, EsG ·
Fort union, Ltd.
P.O. Box 10246
Birmingham, AL 35202
Margaret A. Miller,_Esq.
Office of the Solicitor
U.S . Department of Labor
1999 Broadway, Suite 1600
Denver, CO 80202
Administrative Law Judge Artihur Amchan
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church , VA 22041

1214

· FEDERAL MINE SAFETY ARD HEALTH REVIEW COMMISSION
1730 K STREET, N.W., SIXTH FLOOR
WASHINGTON, D. C. 20006

June 20, 1994

IN RE: CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

Master Docket No. 91-1

KEYSTONE COAL MINING .CORP.,
Docket Nos. PENN 91-451-R··
through PENN 91-503-R

v.

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

Docket No~. PENN 91-1176-R*
through PENN 91-1197-R*

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

Docket No.

PENN 91-1264

Docket No.

PENN 91-1265

v.

Docket No.

PENN 91-1266

KEYSTONE COAL MINING CORP.

Docket No.

PENN 92-182

and

Docket No.

PENN 92-183

UNITED MINE WORKERS
OF AMERICA (UMWA)

In its Petition for Discretionary Review filed on May 20, 1994, the
Secretary of Labor (•secretary•) requested that •the Commission order that the
remaining cases under Master Docket No. 91-1 continue to be stayed during the
pendency of this appeal.• PDR at 22.

* The previously issued Direction for Review failed to reference Docket Nos.
PENN 91-1176-R through PENN 91-1197-R. Those cases are included among the
cases under review.

1215

On June 2, 1994, Contestants Canterbury Coal Company, Cyprus Coal
company, .cyprus .Shosh~;~ ·e:;;~l corporation, Cyprus P.lateau Mining Corporation,
Cyprus Kanawha Corporation , Twentymile Coal Company, and Cyprus Empire
Corporation, represented by Buchanan Ingersoll P.C., filed a response in
opposition to the Secretary's request for continuation of the stay .
On June 10, 1994 , all contestant~ represented by Crowell & Moring in
this matter requested that •their cases be stayed until the Commission decides
the common issues u~der review in Keystone.• Response at 15.
We hereby remand consideration of the motion, and the responses thereto,
to Chief Administrative Law Judge Paul Merlin, who shall direct the Secretary
to comply with Commission Rule 10 , 29 C.F.R . 2700.10, in order to ensure that
all affected parties are on notice of the Secretary's motion. The stay order
was issued by Administrative Law Judge James Broderick, who has since retired .

Richard v. Backley,

yce A. Doyle, Commissione

~~

Arlene Holen, Commissioner

1216

Distribution :.....
Jerold S. Feingold, Esq.
Stephen D. Turow, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., 4th Floor
Arlington, VA 22203
R. Henry Moore, Esq.
Buchanan Ingersoll
USX Tower, 57th Floor
600 Grant Tower
Pittsburgh, PA 15219
Barry A. Woodbrey, Jr., Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Laura E. Beverage, Esq.
Jackson & Kelly
1660 Lincoln Street
Denver, Colorado 80264
Timothy M. Biddle, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Michael T. Heenan, Esq.
Smith, Heenan & Althen
1110 Vermont Avenue, N.W.
Washington, D.C. 20005
John Palmer, Esq.
Robinson & McElwee
P.O. Box 1791
Charleston, WV 25326
H. Thomas Wells, Esq.
Maynard, Cooper & Gale
1901 6th Avenue, N. W.
Suite 2400 AmSouth/Harbert Plaza
Birmingham, AL 35203

1217

- FEDE.AL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.

20006

June 20 , 1994
SECRETARY OF I.ABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No . WEST 91-421

v.
MID-CONTINENT RESOURCES , INC.

SECRETARY OF I.ABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No . WEST 91-627

v.
WILLIAM PORTER

BEFORE:

Backley, Doyle and Holen, Commissioners 1 • 2

DECISION

BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act") . The
1

Commissioner Nelson participated in the consideration of this case but
he passed away before the decision was issued. Pursuant to section 113(c) of the
Mine Act, 30 U.S.C. § 823(c), we have designated ourselves a panel of three
members to exercise the powers of the Commission.
2

Chairman Jordan assumed office after this case had been considered and
decided at a Commission decisional meeting. A new Commissioner possesses
legal authority to participate in pending cases, but such participation is .
discretionary. In the interest of efficient decision making, Chairman Jordan
has elected not to participate in this matter .

1218

issues are wh~~1.'1er . a . v:.j,oJ~tion by Mid-Continent Resources, Inc . ("MidContinent") of 30 -C.F .R. § 75.400 for accumulations of combustible materials
was significant and substantial ( "S&S") (Docket No'. WEST 91-421), 3 and
whether Mine Superintendent William Porter "knowingly authorized, ordered, or
carried out" the alleged violation within the meaning of section llO(c) of the
Mine Act (Docket No. WEST 91-627). 4
Administrative Law Judge John J. Morris concluded that Mid-Continent
violated the standard, that the violation resulted from Mid-Continent ' s
unwarrantable failure, that the violation was not S&S, and that Porter was not
individually liable for a civil penalty under section llO(c). 15 FMSHR.C 149
(January 1993)(ALJ). The Secretary filed a petition for discretionary review
challenging the judge's S&S and section llO(c) determinations. 5 For the
reasons that follow, we vacate the judge ' s conclusion that the violation was
not S&S and remand for further analysis; we affirm the judge's determination
that Porter was not liable under section llO(c).
·

3

30 C.F.R. § 75 . 400 provides:
Accumulation of combustible materials.
Coal dust, including float coal dust deposited
on rock-dusted surfaces, loose coal, and other
combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on

electric equipment therein.
4

Section llO(c) provides:
Whenever a corporate operator violates a
mandatory health or safety standard or knowingly
violates or fails or refuses to comply with any order
. . . , any director, officer, or agent of such
corporation who knowingly authorized, ordered, or
carried out such violation, failure , or refusal shall
be subject to the same civil penalties, fines, and
imprisonment that may be imp9sed upon a person under
subsections (a) and (d) [of this section].

30 U.S.C. § 820(c).
5

In his decision, the judge also ruled on an order issued to MidContinent alleging a violation of section 75 . 400 on May 29, 1990, and on
penalties proposed under section llO(c) against two other Mid-Continent
employees in connection with that violation. Docket Nos. WEST 91-168, -594,
and -626. Petitions for discretionary review with respect to those aspects of
the judge's decision were filed by Mid-Continent ·a nd those employees found
individually liable . We are issuing a separate decision on that petition.
Mid-Continent Resources. Inc., 16 FMSHR.C _ _ (June 20, 1994).

1219

--. .

~

I.

Whether the Violation Was S&S
A.

Factual Background and Procedural History

Mid-Continent operates the Dutch Creek Mine, an underground bituminous
coal mine in Pitkin County, Colorado. On May l, 1990, James Kirk, an
inspector of the D~partment of Labor's Mine Safety and Health Administration
("MSHA"), inspected the 103 longwall section. He ·found accumulations of loose
coal at various locations along the 103 strike conveyor belt, which was
approximately 3,000 feet long, beginning with the area around the stage loader
and belt tailpiece near the face. The belt had broken on the previous shift
and, during Kirk's inspection, it was operating only intermittently. 15
FMSHRC at 155-57, 162; Tr. 66, 508, 578. Approximately 100 feet ·from the
tailpiece, Kirk found a~cumulations up to 12 inches in height that were in
contact with the belt and belt rollers. Proceeding outby along the···belt near
the shark pump, Kirk noticed additional accumuYations extending about SO feet .
The belt rubbed against the conveyor framework as well ' as against the
accumulations. Kirk also found accumulations between crosscuts 11 and 10 and
· at the 11and10 doors. These accumulations were also in contact with the
belt and belt rollers. Near the 9 door, there was a windrow of coal
approximately 260 feet long and up to 18 inches high. Kirk found further
accumulations at the 8, 7 and 6 doors, which were 20 to 40 feet long and
mostly dry. At the 6 door, the belt and rollers were in contact with the
accumulations. Kirk also observed wet accumulations around the drive area of
the 103 belt and the tailpiece of the B-2 belt.
Kirk determined that the accumulations violated section 75.400. He
issued a withdrawal order to Mid-Continent pursuant to section 104(d)(2) of
the Mine Act, 30 U.S.C. § 814(d)(2), alleging that the violation was S&S and
had resulted from the operator's unwarrantable failure to comply with the
standard.
In concluding that the violation was not S&S, the judge determined that
there was not a reasonable likelihood that the accumulations would result in a
fire because the loose coal was of low combustibility. 15 FMSHRC at 159.
B.

Dispositi<W

The S&S terminology is taken from section 104(d) of the Mine Act, 30
U.S.C. § 814(d), and refers ·to a more serious type of violation. A violation
is S&S if, based on the particular facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature. Cement Division.
National Gypsum Co., 3 FMSHRC 822, 825-26 (April 1981). In Mathies Coal Co.,
6 FMSHRC 1, 3-4 (January 1984), the Commission further explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a

1220

ma~_fl~to];Y. aafety standard; (2) a discrete safety
hazard - -- that is, a measure of danger .to safety
contributed to by the violation; (3) a reasonable
likelihood t hat the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature ..

See also Austin Power. Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988),
aff'g, 9 FMSHRC 201~, 2021 (December 1987)(approving Mathies criteria), The
Commission has held that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an .event in which there is an injury." ![..]_._
Steel Mining Co . . Inc., 6 FMSHRC 1834, 1836 (August 1984)(emphasis in
original). An evaluation of the reasonable likelihood of injury should be
made assuming continued normal mining operations. U.S. Steel Mining Co. Inc.,
7 FMSHRC 112°5, 1130 (August 1985).
The judge found that Mid-Continent had violated section 75.400, that
ignition or propagation of a fire is a hazard associated with coal accumulations, and that injuries resulting from the hazard could be serious and
possibly fatal. 15 FMSHRC at 154, 156. He found, however, that there was not
a reasonable likelihood that a fire would occur. 1JL_ at 159-60. It is this
finding that the Secretary challenges on review.
In concluding that the Secretary's evidence failed to satisfy the third
element of the Mathies test, the judge found that Mid-Continent's coal has low
o~ygen and high ash content, burns with great difficulty, and will not
spontaneously combust. 15 FMSHRC at 155, 159, The judge pointed out that
Mid-Continent must add diesel oil to its coal to keep its coal-fired thermal
dryers burning. Id. at 159. He noted that a major methane fire in a longwall
section during the summer of 1990 failed to ignite adjacent coal pillars. Id.
Accordingly, he concluded that, "[d]ue to the lack of ignitability of the
loose coal," there was not a reasonable likelihood that a fire would result.
Id.
On review, the Secretary contends that the judge's conclusion is not
supported by substantial evidence in the record. 6 He argues that the judge
failed to address adequately all the important evidence relevant to the
likelihood . of a mine fire occurring. The Secretary asserts that the
accumulations could be ignited by frictional contact with the belt or belt
rollers or by an ignition elsewhere in the mine. The Secretary also maintains
that the judge failed to give due consideration to continued normal mining
6

The Commission is bound by the terms of the Mine Act to apply the
substantial evidence test when reviewing an administrative law judge's factual
determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial evidence"
means "such relevant evidence as a reasonable mind might accept ~s adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159 , 2163 (November 1989), gµoting Consolidated Edison Co . v. NI.RB. 305 U.S.
197, 229 (1938).

1221

operations. In ..re.sponse ,- -Mid-Continent submits that substantial evidence
supports the judge's determination that there was only a remote possibility,
if any, that either an ignition or an injury would occur as a result of the
violation. Mid-Continent asserts that, at the time of citation, the belt had
broken and thus all potential sources of friction were eliminated. It also
contends that the Secretary failed to show a viable ignition _source for any of
the accumulations and that they were virtually incombustible.
The substanti..al evidence standard of review requires that a fact finder
weigh all probative- record evidence and that a reviewing body examine the fact
finder's rationale in arriving at his decision. See Universal Camera Corp. v.
NLRB, 340 U.S. 474, 487-89 (1951) . A judge must analyze and weigh the ·
relevant testimony of record, make appropriate findings, and explain the
reasons for his decision. Anaconda Co. , 3 FMSHRC 299, 299-300 (February
1981). We agree with the Secretary that the judge failed to address
adequately the evidentiary record in determining that it was not reasonably
likely that the hazard contributed to by the violation would result ""in an
injury. See Eagle Nest , Inc., 14 FMSHRC 1119, 1123 (July 1992).
The judge's factual determinations with regard -to the violation appear
to be consistent with a finding of S&S, and he failed to reconcile those
findings with his determination that the violation was not S&S. The judge ·
recognized potential ignition sources such as frictional contact between the
belt rollers and the accumulations, the belt rubbing against the frame,
electrical cables for the shark pump, the· electrical devices for the longwall
and one area in the longwall that was not being maintained. 15 FMSHRC at 15455. As specifically noted by the judge, Kirk had cited a permissibility
violation on a power cable connected to a longwall control box. Id. at 155;
Tr. 12-13, 29, 42. The judge also found that the accumulations could be
introduced into an ignition causing a more serious ignition. 15 FMSHRC at
154.
Further, the judge failed to reconcile his finding that Dutch Creek is a
gassy mine subject to five-day spot inspections with his determination that
the violation was not S&S. Id. at 154, 158-60. The mine emits . over one
million cubic feet of methane in a 24-hour period. Tr. 28; see also Tr. 2930. The 103 longwall is a gassy area. Tr. 297. Accumulations, in
conjunction with a methane ignition in the face area, could propagate and
increase the severity of a fire or explosion. 15 FMSHRC at 154; Tr. 30, 74142.
We also conclude that the judge failed to take into account continued
normal mining operations when he discounted Kirk's testimony as to the belt
and belt rollers be.i ng in contact with the accumulations because the inspector
did not recall any hot areas. 15 FMSHRC at 159; ~Tr. 104 . As the judge
found, the conveyor belt had broken during the preceding shift and was under
repair when Kirk entered the section. 15 FMSHRC at 156-57, 161-62.
Finally, to the extent the judge suggested that spontaneous
combustibility of coal is required for an S&S finding, he erred. See 15
FMSHRC at 159. The evidence shows that loose coal in the Dutch Creek Mine is
low in combustibility, but coal is , by its nature, combustible.

1222

Accordingly .---we vacate his conclusion that the violation was not S&S.
We remand for further analysis consistent with this decision . If the judge.
finds that the violation is S&S, he shall assess the appropriate civil
penalty.
II.

William Porter's Liability Under Section llO(c)
A.

Factual Background and Procedural History

On May 1, 1990, William Porter, the mine superintendent responsible for
the · l03 longwall, came to work at 6 : 20 a.m . for the A shift (7:00 a.m. to 3:00
p.m.). He was told by a subordinate that the 103 belt had broken and had been
down during the last hour and a half to two hours on the C shift (11:00 p.m.
to 7:00 a.m.). Porter was unable to reach those currently working underground
on the belt; he immediately instructed his foreman to see that the oelt was
repaired and the spillage cleaned up. Tr. 578-79. The _accumulatiouS along
the 103 belt were the subject of Kirk'~ section 104(d)(2) order discussed
above.
Following further investigation of the violation, the Secretary alleged,
in a petition for assessment of civil penalty pursuant to section llO(c) of
the Mine Act, that Porter had knowingly authorized, ordered, or carried out
the violation of section 75 . 400. cited in Kirk's order.
The judge concluded that there was no evidence that Porter knowingly
authorized, ordered, or carried out the violation. 15 FMSHRC at 162. The
judge emphasized that the coal accumulations along the 103 belt were caused by
the belt break that had occurred on the shift before Porter's. Id.
B.

Disposition

The Secretary contends that the judge failed to consider evidence that
there were coal accumulations along the 103 belt reported in the days before
the belt break. The Secretary argues that Porter knowingly authorized a
violat ion of section 75.400 when he countersigned the earlier preshift and
onshift examination reports and, according to the Secretary, took no
meaningful steps to clean up the accumulations. Mid-Continent replies that
the cited accumulations resulted from the ~elt break and that the earlier
examination reports show that the previous accumulations around the belt had
been abated by shoveling.
Section llO(c) of the Mine Act provides that, whenever a corporate
operator violates a mandatory safety or health standard, any agent of the
corporate operator who "knowingly authorized, ordered, or carried out such
violation" shall be subject to civil penalty. 30 U.S.C. § 820(c).
The Secretary failed to establish that any of the cited accumulations
existed before the belt break. The judge found that the belt broke on the May
1 C shift, causing coal spillage. 15 FMSHRC at 156. The record indicates
that breakage of a belt carrying coal could result in the significant

1223

accumulations-:l.ate-r · found- by Inspector Kirk. See Tr. 134, 544, 548, 557. The
inspector himself acknowledged that a great deal c>f coal could -accumulate at
the point of a belt break . Tr . 31, 67, 85 . Accumulations would also result
from removing coal from the belt in order to splice it. Tr. 83, 383-84, 493,
496-97.
Porter reported to work on the shift following the belt b~eak . When he
learned that the belt had broken, he assigned a foreman to repair it and clean
up the area. Tr. §78-79.
The judge found that the · entire production crew had spent one and a half
to two hours repairing the belt (which took four hours), even before Kirk
arrived at the mine . 15 FMSHRC at 156. Therefore , the record shows that
Porter actively sought to address the belt and accumulation problem as soon as
he became aware of it.
We conclude that substantial evidence supports the judge's determination
that Porter did not knowingly authorize , order, or carry out. the violation of·
section 75 . 400 . Compare Prabhu Deshetty, 16 FMSHRC ~~• No. KENT 92-549
(May 26, 1994)(affirming a finding of section llO(c)· liability in connection
with an accumulation violation). Accordingly, we affirm the judge's section
llO(c) determination.
III.

Conclusion
For the reasons set forth above, we vacate the judge's conclusion that
Mid-Continent's violation of section 75. 400 was not S&S and remand fo'r further
analysis. We affirm the judge's determination that Porter is not liable under
section llO(c) of the Mine Act for knowingly authorizing, ordering, or
carrying out Mid-Continent's violation of section 75.400.

Richard V. Backley, Commissioner ·

~lf:k.niAioner
1224

Distribution
Edward Mulhall, Jr.
Delaney & Balcomb, P.C.
P.O. Drawer 790
818 Colorado Avenue
Glenwood Springs, CO 81602
Susan E. Long, Esq.
Office of the· Solicitor
U . S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge John J. Morris
Federal Mine Safety & Health Review Commission
1244 Speer Boulevard, Suite 280
Denver, CO 80204

l225

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

20006

June 20 > 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 91 ~ 168

v.

MID-CONTINENT RESOURCES, INC .
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 91-594

v.
THOMAS SCOTT, employed by
MID-CONTINENT RESOURCES, INC .
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEST 91 - 626

TERRANCE J. HAYES, employed by
MID-CONTINENT RESOURCES, INC.
BEFORE:

Backley, Doyle and Holen, ·c ommissioners 1 • 2
DECISION

BY THE COMMISSION :
These civil penalty proceedings arise under the Federal Mine Safety and
liealth Act of 1977 , 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"). ·The
issues are whether Mid-Continent Resources, Inc. ("Mid-Continent") violated
1
Commissioner Nelson participated in the consideration of this case but
he passed away befor~ the decision was issued. Pursuant to section 113(c) of
the Mine Act, 30 U.S.C . § 823(c), we have designated ourselves a panel of
three members to exercise the powers of the Commission .

2 Chairman Jordan assumed office after this case had been considered and
decided at a Commission decisional meeting. A new Commissioner possesses
legal ~uthority to participate in pending cases, but such participation is
discretionary. In the interest of efficient decision making, Chairman Jordan
has elected not to participate in. this matter.

1226

30 C.F.R. § 75.:...4 00.;.3 .whether that violation was of a significant and
substantial ( 11 S&S 11 ) nature and caused by .Mid-Continent's unwarrantable failure
to comply with the standard; and whether Thomas Scott and Terrance J. Hayes,
employed as supervisors by Mid-Continent, were individually liable under
section llO(c) of the Mine Act, 30 U. S.C. § 820(c), for knowingly authorizing,
ordering, or carrying out the violation. 4
Administrative Law Judge John J. Morris concluded that Mid- Continent
violated section 75.400, that the violation was S&S and caused by MidContinent' s unwarrantable failure, and that both Scott and Hayes were
individually liable for civil penalty under section llO(c) of the Act. 15
FMSHRC 149 (January 1993)(ALJ). We granted Mid-Continent ' s petition for
discretionary review, which challenged each of the judge' s findings. 5 For
the reasons that follow, we affirm the judge's conclusions that Mid-Continent
violated the standard and that the violation was S&S and caused by the
operator's unwarrantable failure. We reverse his determinations that Scott
and Hayes were liable under section llO(c).

3

30 C. F.R. § 75.400 provides:
Accumulation of combustible materials.
Coal dust, including float coal dust deposited
on rock-dusted surfaces, loose coal, and other
combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on
electric equipment therein.

4

Section llO(c) of the Mine Act provides :
Whenever a corporate operator violates a
mandatory health or safety standard . .. , any director,
officer, or agent of such corporation who knowingly
authorized, ordered, or carried out such violation,
... shall be subject to the same civil penalties,
fines, and imprisonment that may be imposed upon a
person under subsections (a) and (d) . ·

30 U.S.C . § 820(c).
5 In his decision, the judge also ruled on an order issued to MidContinent alleging a violation of section 75.400 on May 1, 1990, and on a
related section llO(c) action involving another Mid-Continent employee.
Docket Nos. 'WEST 91-421 and -627. A petition for discretionary review with
respect to those aspects of the judge's decision was filed by the Secretary.
We are issuing a separate decision on the Secretary's petition. Mid-Continent
Resources. Inc., 16 FMSHRC
(June 20, 1994).

1227

I.

Violation of 30 C.F.R.
A.

§

75.400 and Special Findings .

Factual and Procedural Background

Mid-Continent operates the Dutch Creek Mine, an underground bituminous
coal mine in Pitkin County, Colorado. On May 29, 1990, Frank Carver, an
inspector of the Department of Labor's Mine Safety and Health Administration
("MSHA"), inspected~the 211 longwall section.
In the intake roadway .of the number 2 ·entry, approximately 300 feet from
the face, Carver discovered that the No. 18 crosscut was mostly full of
material consisting of timbers, lump coal, very dry coal dust, float coal
dust, and coal fines. 15 FMSHR.C at 162-63. The accumulation was 18 feet
wide, 6 feet high and 21 feet long and was lightly "salted and peppered,"
indicating the application of rock dust. Carver also observed a hanging
voltage cable and a non-permissible diesel tractor 20 to 40 feet from the
accumulation and considered them to be ignition sources.
Carver found another accumulation of lump coal, float coal dust, and dry
coal fines in the first crosscut adjacent to and behind the 211 longwall face
in the number 2 entry. He estimated that the second accumulation was 30 feet
wide, 6 feet high and 24 feet long.
Carver determined that the accumulations violated section 75.400 and
issued a withdrawal order; pursuant to section 104(d)(2) of the Mine Act, 30
U.S.C. § 814(d)(2), alleging that the violation was S&S and resulted from MidContinent's unwarrantable failure to comply with the standard.
The judge credited Carver's testimony that the accumulations were
combustible and concluded that Mid-.Continent had violated section 75.400. 15
FMSHRC at 163-65 , He determined that the violation was S&S. IQ.... at 165. The
judge concluded that Mid-Continent's move of the longwall power center, which
occurred during the Memorial Day weekend (May 26-28), caused the accumulation
in the No. 18 crosscut because space was needed to accommodat~ the equipment
at its new location. Id. With respect to unwarrantable failure, the judge
noted that the Secretary had cited Mid-Continent numerous times for violations
of section 75.400. See Id. at 160; S. Ex. M-3. The judge concluded that the
large number of citations established that Mid-Continent's violation of
section 75.400 resulted from its unwarrantable failure. Id.
B.

Disposition
1.

Whether section 75.400 was violated

Mid-Continent submits that the Secretary failed to establish the
combustibility of the ·accumulations and that, in any event, its ventilation
plan permits it to maintain accumulations behind· the longwall face . The
Secretary argues that substantial evidence supports the judge's conclusion
that the accumulations were combustible and that the ventilation plan does not
permit accumulations.

1228

We conclude ~hat -~ubstantial evidence supports the judge's determination
that the accumulations were combustible . 6 We note ·that several of the
judge's findings are based on credibility resolutions and that Mid-Continent
has not offered sufficient grounds to justify the extraordinary step of
reversing those resolutions. See generally,~. Quinland Coals. Inc., 9
FMSHRC 1614, 1618 (September 1987) .
The Commission has held that section 75.400 "is violated when an
accumulation of combustible materials exists." Old Ben Coal Co ., 1 FMSHRC
1954, 1956 (December 1979); see also Old Ben Coal Co., 2 FMSHRC 2806, 2808
(October 1980). The Commission has further explained that a prohibited
"accumulation" refers · to a mass of combustible materials that could cause or
propagate a fire or explosion. Old Ben, 2 FMSHRC at 2808.
Carver estimated that the accumulation in the No . 18 crosscut was 18
feet wide, 6 feet high and 21 feet long. S. Ex. M-1. He testified that the
accumulation contained "some float dust mixed in, and some coal fines, and
lump coal throughout the pile." Tr. 188-89; see also Tr. 205. He also noted
that the accumulation was "dry to the touch" and contained combustible timber
wedges . Tr. 188, 189. The judge credited Carver's . description of the accumulation. 15 FMSHRC at 163 - 64. The inspector's testimony is corroborated in
part by the examiners' books. Coal accumulations in the No . 18 crosscut were
reported in one onshift and two preshift examinations on May 27 and in a
preshift examination on May 28 . S. Ex. M-16; see also Tr. 259-61. According
to the inspector, the float coal dust and the dust fines were a fire and
explosion hazard . ·T r. 192. See also Tr. 213 . He was especially concerned
that the dust could contribute to a secondary explosion following an explosion
at the face. Tr. 192 - 93. John Reeves, Mid-Continent's president,
. acknowledged that coal dust, loose coal and chunks of coal can contribute to
the propagation of a methane ignition. Tr·. 482 - 84.
Mid-Continent raises three objections to Carver's testimony . First, it
relies on the testimony of Bruce Collins, its geologist, that the cited
accumulation was not coal but non- combustible carbonaceous siltstone. The
judge rejected Collins' testimony, reasoning that Mid-Continent would not have
applied rock-dust if the materials were not combustible. 15 FMSHRC at 164.
See Tr. 188. See also Tr. 268, 281. The judge noted that Collins failed to
explain how such large masses of siltstone could have accumulated . Id. at
164. Indeed, the record contains no evidence that Collins had ever been to
the 211 longwall section. See Tr . 531.
Second, Mid-Continent argues that the coal in question will not
spontaneously combust and, indeed, is not combustible. The evidence, however,
6

The Commission is bound by the terms of the Mine Act to apply the
substantial evidence test when reviewing factual determinations in an
administrative law judge's decision. 30 U.S.C. § 823(d)(2)(A)(ii)(I). The
term "substantial evidence" means "such relevant evidence as a reasonable mind
might accept as adequate to support [the judge's] conclusion." Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989), quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

1229

suggests only .:i:hat .. the -ceal is not highly combustible. See, ~. Tr. 410-12,
461-62, 470-71, 481. Spontaneous combustibility is not a prerequisite to the
creation of an ignition or propagation hazard in a coal accumulation.
Third, Mid-Continent argues that the material in the No. 18 crosscut was
wet below the surface and, therefore, incombustible and not subject to section
75.400. The Commission has held that accumulations of damp or wet coal, if
not cleaned up, can dry out and ignite. Black Diam,ond Coal Mining Co., 7
FMSHRC 1117, 1120-21 (August 1985); Utah Power & Light Company. Mining
Division, 12 FMSHRG 965, 969 (May 1990), aff'd, 951 F.2d 292 (10th Cir. 1991)
("UP&L"). A construction of section 75.400 that excludes wet coal defeats
Congress' intent to remove fuel sources from mines and permits potentially
dangerous conditions to exist. Black Diamond, 7 FMSHRC at 1121; see also
UP&L, 12 FMSHRC at 970.
With respect to the second coal accumulation behind the longwall face,
Mid-Continent preliminarily argues that Carver failed to testify about it.
While Carver's testimony primarily addressed the accumulation in the No. 18
crosscut, Mid-Continent's own witnesses acknowledged the existence of the
other accumulation. See Tr. 606, 636, 646. This accumulation was also
reported in various · reports in the examiners' books on May 27 and 28, 1990.
S. Ex. M-16. The withdrawal order indicates that the second accumulation was
similar in composition to the first. S. Ex. M-1.
Mid-Continent's main contention with regard to the second accumulation
is that its approved ventilation plan, as modified (M. Ex. R-13), allowed it
to maintain accumulations behind the longwall _face as it advanced. The judge
rejected that argument, finding that MSHA had not directly or implicitly
authorized Mid-Continent to violate section 75.400. 15 FMSHRC at 164-65. We
agree. The judge found that the modification relied on by Mid-Continent
approves only "the lengthening and extension of two crosscuts to allow for
advance of the face." Id. at 164-65. The plan's language cannot reasonably
be construed to allow Mid-Continent to maintain accumulations behind the
longwall face. See M. Exs. R-11, 12, and 13.
We conclude that the second accumulation was not permitted under MidContinent' s ventilation plan. The cited accumulations of both coal and other
materials were · the kind of combustible and hazardous accumulations prohibited
by the standard and either accumulation alone would have constituted a
violation of section 75.400. Accordingly, we affirm the judge's determination
of violation.
2.

Whether the violation was S&S

The S&S terminology is taken from section 104(d) of the Mine Act, 30
U.S.C. § 814(d), and refers to a more serious type of violation. A violation
is S&S if, based on the particular facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature. Cement Division.
National Gypsum Co., 3 FMSHRC 822, 825-26 (April 1981). In Mathies Coal Co.,
6 FMSHRC 1, 3-4 (January 1984), the Commission further explained:

1230

.. -In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard -- that is, a measure of danger to safety -contributed to by the violation; (3)° a reasonable
likelihood that the hazard contributed to will result
in an-injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
See also Austin Power. Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988),
aff'g, 9 FMSHRC 2015, 2021 (December 1987)(approving Mathies criteria). The
Commission has held that the third Mathies element "requires that the
Secretary establish a reasonable likelihood that the hazard contrib~ted to
will result in an event in which there is an injury." U, S. Steel Mining Co. ,
6 FMSHRC 1834, 1836 (August 1984)(emphasis in original). An evaluation of the
reasonable likelihood of injury should be made assuming continued normal
mining operations. U.S. Steel Mining Co,, 7 FMSHRC 1125, 1130 (August 1985).
With regard to the first element of the Mathies test, we have affirmed
the judge's finding of violation. 15 FMSHRC at 165. As to the second
element, the judge found that there was a measure of danger contributed to by
the violation and he further found that a mine fire would cause serious
injuries, thus establishing the fourth element. IQ.._ The operator does not
dispute these two findings on review but, rather, objects to the judge's
findings concerning the third Mathies element, that the hazards posed by the
violation were reasonably likely to cause injury.
Mid-Continent argues that its coal burns only with great difficulty and,
thus, there was only an extremely remote possibility that an ignition source
would spark a fire. Mid-Continent asserts that, because the 211 longwall face
was not producing coal and all pertinent ignition sources were deenergized at
the time of the citation, the accumulation in the No. 18 crosscut, which was
rock dusted and wet below the surface, did not present a reasonable likelihood
of resulting in an injury-producing event.
Carver testified that, if the violative accumulation in the No. 18
crosscut continued, it was reasonably likely that an injury would occur. 15
FMSHRC at 163-65; Tr. 193, 213. He indicated that there were several ignition
sources present, including the hanging power cable and the diesel tractor.
Tr. 155, 192, 195. Because the air travels from the No. 18 crosscut to · the
working face, a fire or explosion would affect all miners in the section. Tr.
194. The inspector and other witnesses also expressed concern about
propagation of an explosion at the face, explaining that coal dust, loose
coal, and chunks of coal can contribute to the propagation of a methane
ignition. Tr. 192-93, 297-99, 482-84. This is a gassy mine, emitting more
than one million cubic feet of methane in a 24-hour period. 30 U.S.C.
§ 813(1). See Tr. 28, 29-30, 193.

1231

Mid-Cont:i::nent ' ·s· argument that there was only a remote possibility of
these hazards occurring fails to account for the risks emanating from
continued normal mining operations once the ·power center move was completed
and the section resumed operating . We also reject Mid- Continent's arguments
based on the low combustibility of its coal and the dampness in the
accumulation.
We conclude that .substantial evidence supports the judge's determi that there was a reasonable likelihood that the hazard contributed to
by the violation would resul t in an injury. Accordingly, we affirm the
judge's conclusion that Mid-Continent's violation of section 75 . 400 was S&S.
na~ion

3.

Whether the violation resulted from unwarrantable failure

Mid-Continent argues that it was impossible to clean up the accumulations in a timely manner due to unexpected mechanical and electrical
problems, including the failure of the gearbox on the face conveyor . ...which
prevented the removal of accumulations on that conveyor. Mid-Continent also
asserts ·that most, if not all, of the accumulation in the No . 18 crosscut was
the result of floor heave. The Secretary responds that· conveyor problems do
not excuse the delay in cleaning up because the power center move caused the
accumulations to be dumped in the No. 18 crosscut and that move was undertaken
after the gearbox failure was known to Mid- Continent. The Secretary further
argues that Mid-Continent's long history of accumulation violations placed it
on notice that greater efforts were necessary for compliance.
The unwarrantable failure terminology is taken from section 104(d) of
the Act and refers to more serious conduct by an operator in connection with a
violation. In Emery Mining Corp., 9 FMSHRC 1997, 2001 (December 1987), the
Commission determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence. This determination was derived,
in part, from the plain meaning of "unwarrantable" ("not justifiable" or
"inexcusable 11 ) , "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, "
11
thoughtlessness," and "inattention"). Id. at 2001. This determination was
also based on the purpose of unwarrantable failure sanctions in the Mine Act,
the Act's legislative history, and judicial precedent. · rd.
In reaching his conclusion as to Mid-Continent's unwarrantable failure,
the judge relied heavily on the fact that, between October 1, 1988, and
March 18, 1992, Mid- Continent received 215 citations and orders for violati ons
of section 75.400. 15 FMSHRC at 160, 165; S. Ex . M-3. Mid-Continent properly
questions the relevance of such violations after May 29, 1990, the date of the
order in issue. The judge's error in relying on post-violation incidents was,
however, harmless . Between October 1, 1988, and May 28, 1990, Mid-Continent
was cited for 170 alleged violations of section 75.400, which should have
engendered in the operator a heightened awareness of a continuing accumulation
problem. S. Ex·. M-3. Cf. Peabody Coal Co,, 14 FMSHRC 1258, 1259, 1264
(August 1992) ; Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (December
1987).

1232

The cit~ accumulations were extensive and were noted in reports of
various examinations conducted on May 27 and 28 . ·s. Exs. M-9, M-16. Cf.
Peabody, 14 FMSHRC at 1262. There is no evidence of attempts to remove the
accumulations during two idle shifts on May 28 or at the time of Carver's
inspection . See S. Ex. M-16. Cf. Peabody, 14 FMSHRC at 1262. As to MidContinent's argument that it was impossible to remove the accumulations from
the mine via the conveyor belts due to unexpected mechanical problems and the
power center move, as noted by the judge, the move itself resulted in the
accumulation in the No. 18 crosscut because its implementation required
additional space. 7 · 15 FMSHR.C at 165. See also Tr. 155-57, 270.
Accordingly, we aff~rm the judge's determination that Mid-Continent's
violation of section 75.400 resulted from its unwarrantable failure to comply
with the standard.
II.

Thomas Scott's Liability under Section llO(c)
A.

Factual and Procedural Background

Thomas Scott was the mine's underground superintendent in May 1990, and
usually worked the day shift , from 7:00 a.m. to 3:00 p.m. Upon learning on
Friday evening, May 25, that the face conveyor gearbox on the 211 longwall
face had gone out, he ordered the power center move. Tr. 631-32, 646. Scott
did not work during the Memorial Day weekend but on Monday evening, May 28, he
called the mine and learned that the 211 gearbox was not yet ready for ·
installation and that the power center move had not been completed. When
Scott returned to work at 6:30 a.m . the following day, he did not review MidContinent's examination books immediately. He was notified of Carver's order
at approximately 8:30 a . m.
Following an investigation, the Secretary alleged that Scott had
knowingly authorized, ordered or carried out the violation within the meaning
of section llO(c) of the Act.
The judge found that, because Scott should have known from the
examination books that the accumulation existed in the No. 18 crosscut, he was
liable under section llO(c). 15 FMSHRC at 167 . The judge found Scott
negligent and assessed a civil penalty of $200. .I4.._.

7

Mid-Continent also cites electrical problems with another belt, but
does not explain the nature or extent of the problems, or any efforts to
restart the belt. Thus, we do not address this argument.
Mid-Coritinent's additional argument that the accumulation was caused
by floor heave is rejected. Substantial evidence supports the judge's
determination that the accumulation occurred in connection with the power
center move . 15 FMSHR.C at 164-65.

1233

B.

Dispti>sition

Scott argues that he did not actually know of the accumulations and that
the judge found him only negligent, as .distinguished from having engaged in
more aggravated conduct. The Secretary responds that Scott knew or had reason
to know that accumulations would occur during the power center move and that
they could not be cleaned up in a timely manner because the gearbox. had been
removed for repairs.
Section llO(c·) of the Mine Act provides that, whenever a corporate
operator violates a mandatory safety or health standard, any agent of the
corporate operator who "knowingly authorized, ordered, or carried out such
·violation" shall be subject to individual civil penalty.
The accumulations occurred during Scott ' s three-day absence . The judge
emphasized that, upon returning to work, Scott did not review the mine's
examination records. 15 FMSHRC at 167. MSHA's order was issued within
approximately two hours of his return. Scott's testimony was uncontradicted
that he had directed the power center to be moved to a crosscut on the high
side of the roadway , to an area that he had ordered - t6 be cleared of the tools
and equipment that had been stored there in order to accommodate the power
center, but that the longwall coordinator moved the power center to the low
side of the No. 18 crosscut without consulting Scott. Tr. 634- 35, 646 -47. At
that location, excavation was necessary to accommodate the power center.
Thus, Scott's testimony reflects that, when he left on May 25, he had no
reason to expect accumulations in connection with the move.
We conclude that substantial evidence does not support the judge's
conclusion that Scott knowingly authorized, ordered or carried out the
violation. Accordingly, we reverse the judge'.s section llO(c) determination
and vacate the civil penalty assessed against Scott.
III.

Terrance J. Hayes's Liability under Section llO(c)
A.

Factual and Procedural Background

Terrance J. Hayes was shift foreman for the 211 longwall area of the
mine. He normally worked on the C shift, from 11:00 p.m. to 7:00 a.m., but
did not work May 26 or 27. He returned to work on Monday at 11:00 p.m.,
May 28. Hayes was briefed on the power center move and directed that it be
completed. Hayes reviewed and countersigned the production and maintenance
reports. He did not observe any coal accumulations. On May 29, Tuesday
night, he became aware of MSHA's order.
Following its investigation, MSHA alleged in a petition for assessment
of civil penalty that Hayes knowingly authorized, ordered or carried out the
May 29 violation. The judge determined that Hayes knew or should have known
of the accumulations yet failed to take remedial action . 15 FMSHRC at 168-69.
The judge found Hayes negligent and assessed a civil penalty of $200 . l!l... at
169- 71.

1234

B.

DispOs.ition

Hayes and the Secretary raise essentially the same arguments made
regarding Scott. Hayes additionally argues that the relevant examination
records for the No. 18 crosscut did not indicate the presence of
accumulations.
An earlier preshift report for May 28 and other reports for May 27
indicated coal accumulations in crosscut 18 and inby the longwall face. S.
Ex. M-16. However, · the preshift examination for the C shift on May 28 -- the
shift on which Hayes worked - - did not reference the accumulations that formed
the bases for MSHA's enforcement actions . S. Ex. M-9. Inspector Carver
testified that, if one noticed a cited· condition in the examination book that
was not reflected in a subsequent examination, it could be assumed that the
cited condition had been remedied. Tr . 243 - 46. Thus, according to Carver's
testimony , Hayes may have reasonably assumed that the accumulations had been
removed by the commencement of his shift . As the judge noted, Hayes._may have
simply not observed the contents of that crosscut. 15 FMSHRC at 164; Tr . 617.
Hayes' testimony to that effect was uncontradicted .

We conclude that substantial evidence does not support the judge's
concluslon that Hayes knowingly authorized, ordered or carried out the
violation. Accordingly, we reverse the judge's section llO(c) determination
and vacate the civil penalty assessed against Hayes.

IV.
Conclusion
For the reasons set forth above, we affirm the judge's determinations
that Mid-Continent violated section 75.400, that the violation was S&S, and
that it resulted from the operator's unwarrantable failure . We reverse the
judge's determinations that Thomas Scott and Terrance J. Hayes were
individually liable for the violation under section llO(c) and vacate the
civil penalties assessed against them.

Arlene Holen, Commissioner

1235

Distribution
Edward Mulhall, Jr .
Delaney & Balcomb, P . C .
P.O. Drawer 790
818 Colorado Avenue
Glenwood Springs, CO 81602
Susan E. Long, Esq..
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge John J. Morris
Federal Mine Safety & Health Review Commission
1244 Speer Boulevard, Suite 280
Denver, CO 80204

1236

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

J une 21, 199L•

RANDALL PATSY,
Complainant
DISCRIMINATION PROCEEDING
DOCKET NO. PENN 94-132-D

v.
BIG "B " MINING COMPANY,
Respondent

This discrimination proceeding arises under the . Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq. ("Mine Act"). Following receipt
of Complainant Randall Patsy's response to a prehearing notice, Administrative
Law Judge Jerold Feldman, on April 14, 1994, had issued an Order to Show Cause
and Notice of Hearing, in which the judge requested that the complainant
unequivocally s t ate whether he wished to pursue his complaint. In a response
dated April 18, 1994, and received by the judge on May 4, Mr. Patsy stated
that he felt that he would be better off "to pursue this as a civil suit
locally." Based on this response, on May 13, 1994, the judge dismissed the
complaint. For the reasons that follow, we vacate the Order of Dismissal and
remand for further proceedings.
on June 6, 1994, the Commission received a letter from Mr. Patsy in
which he stated that he "would like a reversal of the dismissal." Mr. Patsy
stated further that he had written previously and inquired as to how he could
appeal the dismissal of his case.
The judge's jurisdiction in this matter terminated when his decision was
issued on May 13, 1994. Commission Procedural Rule 69(b), 29 C.F . R .
§ 2700.69(b) (1993).
Under the Mine Act and the Commission's procedural
rules, relief from a judge's d~cision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 u.s.c. S 823(d)(2);
29 C.F.R. 2700.70(a) . We deem Mr. Patsy's letter to be a timely filed
Petition for Discretionary Review, which we grant. ~' ~, Middle states
Resources, Inc.; 10 FMSHRC 1130 (September 1988).

12 37

It appears that lir.• _P.atsy now wishes to pursue his complaint with the
Commission despite his earlier statements to the judge expressing doubts about
proceeding in an administrative hearing. Accordingly, we remand this matter
to the judge, who shall again schedule it for hearing.
For the reasons set forth above, we vacate the judge's Order of
Dismissal and remand this matter for further proceedings.

~e~oner
Distribution
Randall Patsy
R.D. 1, Box 290
East Brady, PA 16028
Ms. Susan Mackalica
Big 11 B11 Mining Company

R.D. l
West Sunbury, PA

16061

Administrative Law Jud~e Jerold Feldman
Federal Mine Safety & Health Review Commission
5203 Leesburr, Pike, Suite 1000
Falls Church, Virginia 22041

1238

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

June

2 7, 199l1

THUNDER BASIN COAL-COMPANY
Docket No. WEST 94-238-R

v.

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

ORDER
Upon consideration of the petitions for discretionary review, we hereby
vacate the judge's decision and remand this matter to him for appropriate
proceedings. We note in particular the Secretary of Labor's assertions that
he has been "deprived of an opportunity to present his legal position to the
judge," (PDR at l) and that certain material factual findings are not
supported by f?Ubstantial evidence. We intimate no view regarding the judge's
legal conclusions _in this matte~.

1239

Distribution
Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Thomas F. Linn, Esq.
Atlantic Richfield Company
SSS Seventeenth St~, 20th Floor
Denver, CO 80202 ·
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Mr. Ray Mcintosh
Representative of Miners
P . O. Box 414
Wright, WY 82723
Mr. Roy Earle Knutson, Jr .
Representative of Miners
601 N. Plains Drive
Gillette, WY 82716
Mr. Everett Kraft
Representative of Miners
Box 127
Upton, WY 82730
Administrative Law Judge Arthur Amchan
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1240

ADMINISTRATIVE LAW JUDGE DECISIONS

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

·JUN

1 1994

CONSOLIDATION COAL COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WEVA 94-235-R
Citation No. 3101220; 4/19/94

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

:

. Mine: Robinson Run No. 95
.
.
.

DEC:CS:CON

Appearances:

Elizabeth Chamberlain, Esq., Consol, Inc.,
Pittsburgh, Pennsylvania, for Contestant;
Charles M. Jackson, Esq., Office .of the Solicitor,
u. s. Department of Labor, Arlington, Virginia,
for Respondent .

Before:

Judge Amchan
Issue Presented

Does the Secretary's regulation at 30 C.F.R. § 75.342(b)(2}
require that the warning light on a methane monitor be within the
line of sight of a person who can de-energize a longwall mining
system at all times, or can the regulation be satisfied by visual
signals conveyed when the system is automatic?lly de-energized at
the level at which the warning light is activated?
For the reasons set forth below, I conclude that warning
signals employed by Contestant at its Robinson Run # 95 mine on
April 19, 1994, complied with the standard cited and I,
therefore, va~ate citation number 3101220.
The April 19, 1994 Inspection
On April 19, 1994, Virgil Brown conducted an inspection of
the 2-D longwall section at Consolidation's Robinson Run # 95
mine in Harrison County, West Virginia, on behalf of the
Secretary of Labor (Tr. 19, Exh C-2). During this inspection he
travelled to the headgate of the longwall where the control panel
or contr9l box for the longwall system is located (Tr. 23-24,
Exh. G~2, C-6). He observed the longwall headgate operator,
Bill Bowen, who was alone performing his duties (Tr. 54).

1 241

Mr. Bow.en was observed shoveling spilled coal at the
tailpiece of the conveyor belt which takes - the coal out to the
surface (Tr. 27, 28, 50). Brown walked to Mr. Bowen's position
and determined that the headgate operator could not see the
warning lights on the system's methane monitors, which were about
30 feet away (Tr. 27, 36, 52, · Exh. G~2). It is uncontroverted
that the headgate operator at Robinson Run will, at times, be out
of the line of sight of the methane monitor's warning lights in
the normal course of his duties (Tr. 49-55, 158-159, 203-204).
Inspector Brown issued Contestant citation number 3101220
due to the fact that the headgate operator or another person, who
could de-energize the longwall, would not always be in a position
where they could see the warning lights on the methane monitor.
This citation alleged that Consolidation violated -the standard at
30 C.F.R. § 75.342(b)(2}, one of MSHA's ventilation standards
that became effective in November 1992. Section 75.342 provides:
(b) (1) When the methane concentration at any methane
monitor reaches 1.0 percent the monitor shall give a
warning signal .
(2) The warning signal device of the methane monitor
shall be visible to a person who can de-energize the
equipment on which the monitor is mounted (emphasis
added}.
April 25, 1994, was set as the date by which the violation
had to be terminated. Consolidation contested the citation and
requested an expedited hearing before the commission. A hearing
was held in Morgantown, West Virginia, on May 13, 1994, after the
termination date had been extended.
The methane warning system on the 2-D longwall at Robinson Run
The general scheme of the Secretary's regulations is that a
methane monitor must give a visual signal to a -person who can deenergize mechanized equipment used to extract or mine coal when
methane levels reach 1%, 30 C.F.R. § 75.342. That person must
then de-energize the equipment and take steps to reduce the
methane concentration pursuant to section 75.323{b} .
Section 75.342(c} requires that the methane monitor
automatically de-energize the machine on which it is installed,
at 2% methane, or if the monitor is not operating properly. The
issue in this case would not likely arise in a section in which a
continuous mining machine is being used. The methane monitor for
a continuous miner is generally mounted on the machine and
should, therefore, always be within the machine operator's sight
(Tr. 55-56).

1 242

Longwail sec t4ons· present a different situation because the
headgate operator may not need to stand in front of the control
panel every minute that the shear is mining coal (Tr. 55-56).
While at other mines Consolidation does have a warning light that
can be seen by the headgate operator wherever he may go while
performing his duties, this is not th·e case on the 2-D longwall
at Robinson Run (Tr. 57, 102-103, 153, 203-204) .
Consolidat~on contends that it has complied with the MSHA
ventilation standards at Robinson Run by essentially skipping the
step in the regulatory scheme whereby a human being de-energizes
the longwall at 1% methane. At the 2-D longwall, Consol has set
its methane monitors so that at 1% methane they will
automatically de-energize all equipment electrically connected to
the longwall except for the methane monitors and face telephone
system (Tr. 17~-177).

Consolidation argues that it has complied with both the
letter and the spirit of section 75.342(b) (2). · It contends that
i t has provided a "warning signal device" that is visible to the
headgate operator at all times. According to Contestant, the
lighting on the longwall face, the lighting on the longwall
shields, the face conveyor 1 · and the drum on the shearing machine
are part of this "warning signal device" because the lights go
out and the equipment stops when methane reaches 1% (Tr. 149150).
There is no disagreement that the headgate operator will be
visually apprised of the fact that all the aforementioned events
have occurred. The Secretary argues, however, that when the
lighting goes out, etc., the operator will not necessarily know
that this occurred because methane levels reached 1% . The
Secretary also argues that because the operator may not realize
that the methane monitor caused the shutdown of the l i ghts and
the equipment, he may re-energize the longwall equipment
prematurely.
Contestant has conclusively established that there is no
possibility that the headgate operator may re-energize the
longwall on the mistaken assumption that the equipment shut down
for some reason other than elevated methane levels.
When the
lights go out and the longwall stops operating, the headgate
operator must return to the master control box to restart the
power (Tr. 153-154, 174-176).

1The

face conveyor is a metal chain with crosspieces which
pushes the coal mined by the longwall shear to the crusher. It
is to be distinguished from the conveyor belt which moves the
coal to the surface (Tr. 33-35, 150, 181, Exh .• C-6).

1243

When th:e.. operator .arrives at the control box after a methane
shutdown, he will be confronted by computer display that will
advise him in plain english that there has been a "methane
monitor fault." (Tr . 153-154, Exhibit C-5(a)). In order to reenergize the longwall, the operator must push the reset button on
the methane monitor, as well as a button on the master controller
(Tr . 153-156, 188-189, Exhibit c-5(d), C-7(b)). If the monitor
caused the power on the longwall to go out, the yellow warning
light on the monitor will be flashing, the trip light on the
monitor will be ·solid red, and the "power on" light of .the
monitor will be green (Tr. 185, Exhibit C-5(c), C-7(b)).
Additionally, there is a digital display on the monitor which
will provide a reading of the methane concentration (Tr. 185).
If the methane level dropped when the longwall equipment
ceased operating, the digital display may indicate that methane
levels are below 1% (Tr. 206). However, if the methane monitor
caused the longwall to shut down, the computer display will still
read "methane monitor fault," the red trip light on the methane
monitor will still be on, as will the yellow warning ligh~, and
the green "power on" light (Tr. 206-207).
A major concern of Inspector Brown's was that the power to
the longwall can go out for reasons unrelated to methane, and if
the headgate operator mistakenly believes the power outage is due
to other causes, he may prematurely re-energize the equipment
(Tr. 81-82, 94, 107-108). First of all, if methane levels are 1%
or above, the operator will not be able to re-energize the
longwall (Tr. 171).
Even if methane levels drop when the
equipment stops, there are many ways to differentiate a longwall
shutdown due to methane from one due to a general power outage.
These differences are clearly illustrated in Contestant's
exhibit C-6, a-c. The major difference is ·that, when the
headgate operator returns to the control box in the general
power-loss situation, he will find the control box dark (Tr. 179181). The computer display will be blank, and. all the - lights on
the methane monitor will be off . There will be no digital
display showing the methane concentration detected (Tr. 179-180).
Also, the main conveyor to the outside, which is not electrically
connected to the longwall, will stop, while in the case of a
methane shutdown, it is likely to continue operating (Tr. 181).
In sum, Contestant contends, and I so find, that if the
methane monitor shuts down the longwall, there is no way the
operator can mistakenly believe that the power went off for some
other reason. Although he may not initially know that the
longwall shut down due to excessive methane, as soon as he gets
to the headgate control box, it will be readily apparent to him
whether the methane monitor tripped or the power went out.

1244

Furthermore ,:.. . ..the headgate operator must return to control box and
hit the restart button on the monitor to re-energize the
longwall.
Contestant complied with section 75.342(b)
In light of the above, I conclude that Contestant's
mechanism for informing the headgate operator of the fact that
methane levels had reached 1% provides equivalent protection to a
warning light that is visible at all times. If I were confronted
with such a situation under the Occupational Safety and Health
Act, it would not be necessary to determine whether Consol
complied with the standard literally. I could find that it
violated the regulation in a de minimis manner, which would not
entail an obligation to abate the cited condition, See, General
Carbon Co. v. OSHRC, 860 F . 2d 479 (D. C. Cir. 1988).
Under the Mine Safety and Health Act, however, there is no
analogous mechanism for the Commission to find a violation but
not require abatement. The statutory mechanism for handling such
situations is for the operator to file a petition for
modification under section lOl(c) of the Act. Indeed, Inspector
Brown indicated that he would have been satisfied with such a
petition, if the facts were as they have been established on this
record (Tr. 108).
Contestant has declined to file a petition for modification
and insists that its methane monitoring system meets the letter
of section 75.342(b) (2). Thus, the undersigned is forced to
decide whether the term "warning signal device", as used in the
regulation, includes a mechanism by which the longwall lights go
out, equipment stops, and the operator--by going to the headgate
control box--learns that the methane monitor has tripped.
In construing the language of section 75 . 342(b), I am not
inclined to engage in a semantical exercise to any extent more
than is absolutely necessary. More important considerations are
applying the standard in a manner that is consistent with the
underlying purposes of the statute and insuring th.at my
interpretation does not compromise miner safety in situations
that I have not contemplated.
I am loathe to require Contestant to spend money, time, and
energy abating a condition if, as I am convinced in the instant
case, abatement will not contribute to miner safety. Indeed, one
must assume that whatever money and effort could be spent in
abating this condition could be better used to improve safety in
areas in which real hazards exist .
Therefore, I find that, given the circumstances of this
case, the measures taken by Contestant constitute a visible
"warning signal device" within the meaning of the 30 C.F.R .

· 1245

75. 342 (b) (-2.) •. -· These · circumstances include a system that
automatically shuts down the longwall at 1-%, instead of relying
on a miner to de-energize the equipment. They also include a
visible signal to the headgate operator and other miners
authorized to de-energize the longwall, by means of a . partial
loss of power, that methane may have .reached 1%. Further they
include the fact that the headgate operator, or other miner, must
return to· the headgate control box to re-energize the longwall,
where he will necessarily find out whether the power loss is a
partial one due ·to a methane monitor trip or a total power loss
due to other causes.
§

Under the above circumst~nces, I conclude that "warning
signal device" is not limited to the lights of the methane
monitor. Additionally, I do not deem the dictionary definition
of "device", which is "something devised or contrived", . .as
precluding the result I have reached. I, therefore, vacate
citation number 3101220.
ORDER

Citation number 3101220 is hereby vacated.

OA~.- ~
~~iittr J ·. Amchan

Administrative Law Judge
703-756-6210

Distribution:
Elizabeth s . Chamberlain, Esq., CONSOL, Inc . , 1800 Washington
Rd., Pittsburgh, PA 15241 (Certified Mail)
Charles M. Jackson, Esq . , Office of the Solicitor, U. S .
Department of Labor, 4015 Wilson Blvd . , Suite ~16, Arlington, VA
22203 (Certified Mail)
/jf

12 4 6

PBDBRAL JUBB - SUB'l'Y llD llBAL'.l'JI uvzn qC>JllllSSJ:Oll
OFJ'J:CB OP ADJUllJ:STRATJ:VB UW JUDGBS
2 SKYLJ:BB, 10th PLOOR
5203 LBBSBURG PJ:KB
_PALLS CBURCJI, VJ:RGJ:llll 22041

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

2 1994.

. CIVIL PENALTY PROCEEDING
:

Docket No. CENT 92-110-M
A.C. No. 34-00015-05509

.. Hartshorne Rock Quarry

v.
DOLESE BROTHERS COMPANY,
Respondent

DECISJ:ON ON REMAND

Before:

Judge Fauver

On April 11, 1994, the Commission affirmed my decision
finding a violation but remanded for further analysis as to the
civil penalty. The Commission directed the judge to enter
findings for each of the statutory penalty criteria and, based
upon such findings, to assess an appropriate penalty.
Section llO(i) of the Act provides six criteria for civil
penalties:
(1) the operator's history of previous violations,
(2) the appropriateness of the penalty to the size of the
business of the operator, (3) whether the operator was negligent,
(4) the effect on the operator's ability to continue in business,
(5) the gravity of the violation, and (6) the demonstrated good
faith of the operator in attempting to achieve rapid compliance
after notification of a violation. 30 u.s.c. ' § 820(i).
Based upon the hearing evidence and the record as a whole, I
make the following findings as to the statutory penalty criteria:
1. History of Previous Violations
In the 2-rear period before the violation, Respondent had
of mine safety standards. Of these, 11 were
significant and substantial violations. Assessed Violation
History Report -- Detailed Violation Listings. Exhibit G-11;
Tr. 6.
.
20 violations

1

Failure of an operator to contest a citation equates to a
finding that the violation was committed as alleged.

1247 .

- ·-- ·2. Size of Business
Respondent is a small size operator, as indicated by MSHA's
Base Penalty Calculation for Special Assessment Violations
(Exhibit R-3} and the tables in 30 C~F.R. § 100.3 for company
size and mine size .
3. Negligence
I find that the violation was due to a high degree of
negligence. Section 56.14211(a) (30 C.F.R.) provides that
"equipment in a raised position • • • [must be) • • .
mechanically secured to prevent it from • • • falling
accidentally." MSHA Program Policy Letter No. P90-IV-2 {June 4,
1990}, provided that a "work platform shall not be suspended from
the load line or whip line when a crane is used to hoist,._ lower,
or suspend persons." A few months later, this policy was changed
by MSHA Policy Letter P90-IV-4 (September 5, 1990), superseding
Policy Letter P90-IV-2. The new Policy Letter provided that a
work basket may be attached to the load line of a crane only if
the equipment had a safety device to prevent the load line from
breaking in a "two block" situation. Mine operators were given
clear notice that it was forbidden by law to attach a work basket
to the load line of a crane unless they provided an . anti-twobl.ock device to prevent the 1 ine from breaking. Respondent
contends that it received the Policy Letters when issued but did
not read them until after the accident {January 1991). This is
not a defense. Respondent is accountable for actual or
constructive knowledge of the regulation and Policy Letters.
In light of the high gravity involved (see Gravity, below),
I find that Respondent was highly negligent in failing to
exercise reasonable care to ensure that its use of a work basket
complied with the applicable law. Respondent's practice of
suspending a work basket from the load line of a crane without a
safety device to prevent the line from snapping in two reflects a
serious disregard for employee safety and the purpose of
§ 56 . 14211 .
This constitutes high negligence .
4. The Effect of the Penalty on the Operator's Ability to
Continue in Business
The parties stipulated that the Secretary's proposed penalty
of $5., 000 would not affect the operator's ability to continue in
business. There being no claim of financial hardship, I find
that the penalty assessed below would similarly not aff~ct the
operator's ability to continue in pusiness. ·

1248

- ~ ; - Gravity

of the Violation

The violation involved a high degree of gravity. The
employee was in a metal work basket that suddenly fell 19 feet to
the ground when the load line snapped in two. He suffered
multiple fractures in both feet and
broken rib. It is clear
from the nature of the accident that the employee could have been
killed or suffered grave neck or spinal injuries causing
permanent, severe disabilities. Also, it was only the height of
this particular .job that limited the fall to about 20 feet. ·The
height of the work basket could have been 50 or 60 feet,
depending on the job. Respondent's practice of suspending ·a work
basket solely from a load line without anti-two-block protection
subjected workers to a risk of death or permanent, severe
disabilities.

a

6. Good Faith Abatement of the Violation
The parties stipulated that the opera~or demonstrated good
faith in abating the violation.
Assessment of a Penalty
Considering all of the criteria for a civil penalty in
llO(i) of the Act, I find that a penalty of $8,000 is
appropriate for this violation. In assessing a penalty higher
than the Secretary's proposal, I have considered the high gravity
and high negligence of this violation. "Two blocking"
predicaments are highly hazardous, foreseeable, and can be
observed by the crane operator. They are also mechanically
preventable by installing an effective safety device to prevent
the line from breaking. Respondent's conduct in attaching a work
basket solely to the load line of a crane without the required
safety device to prevent the line from snapping in two reflects a
serious disregard for employee safety and the applicable safety
standard.
§

ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay a civil
penalty of $8,000 within 30 days of the date of this Decision.

/,}~it-~~liMV~

~illiam F~~ver
1

Administrative Law Judge

1249

Distribution:·
Ernest A. Burford, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin st., Suite 501, Dallas, TX 75202
(Certifi~d Mail)
Peter T. Van Dyke, Esq., Lyttle Soule & Curlee, 1200 Robinson
Renaissance, 119 N. Robinson, Suite 1200, Oklahoma City,
OK 73102 (Certified Mail)
/lt

1250

PBDBUL· JU·n · ·sAPBTY AllD llBAL'l'B llBVZBW COJllll88:IOll
OPP:ICB OP ADlllll:IBTll'.r:IVB LAW JUDGBS
2 BKYL:IllB, 10th PLOOR
5203 LBBSBURG P:IKB

PALLS CHURCH, V:IRGZll:IA

22041

JUN

6 1994

CIVIL PENALTY PROCEEDING

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

. Docket No. PENN 93-205
. A.C. No. 36-00840-03882

v.

Cambria Slope Mine No. 33

BETHENERGY MINES INC.,
Respondent
DECISION

Appearances:

Nancy Koppelman, Esq . , Office of the Solicitor,
U.S. Department of Labor, Philadelphia, .
Pennsylvania, for the Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll
Professional Corporation, Pittsburgh,
Pennsylvania, for the Respondent.

Before:

Judge Fauver

This is an action for a civil penalty under § 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq.
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:
·
FINDINGS OF FACT
1. On December 2, 1992, Federal Mine Inspector Nevin Davis
issued Citation No. 3708698 at BethEnergy•s Cambria Slope Mine
No. 33. The citation alleged a violation of 30 C.F.R.
§ 75.370(a) (1) as follows:
The approved ventilation plan in effect for this mine,
in order to control methane, was not being completely
complied with at one location. The air current off
bleeder evaluation point (CO #54), approved in lieu of
traveling the old 3 left of D-East L. W. pillared area,
was found to contain methane levels of 2.4 percent to
3.1 percent exiting from this gob area, thereby
exceeding the maximum allowable level of 2 . 0 percent
methane. Three air bottle samples were collected by
this writer of this air current at this time (G-1).
12 51

2. The- ·citation .. initially alleged a violation of
BethEnergy's ventilation plan, but the Secretary moved to amend
the citation to allege a violation of 30 C.F.R . § 75.323{e).
The motion was unopposed, and granted.
3 . Inspector Davis was accompanied by Denny Zeanchock, one
of BethEnergy's supervisors.
4 . Bleeder evaluation point (BEP) 54 is at a concrete block
regulator in a bleeder connector that leads from the gob of a
mined-out longwall panel to a return entry. The regulator has an
opening about 3 feet by 3-1/2 feet with a board across the top.
A screen was placed over the opening of the regulator to prevent
travel into the gob area. The regulator is 14 to 15 feet from
the rib line of the return entry. The BEP is regularly examined
by company mine examiners who normally take methane measurements
at a location indicated on a board in the mine roof, about 4 to
5 feet from the rib line of the return entry.
5. Inspector Davis measured methane with a hand-held
detector, recording methane findings in his notes as follows:
4:30 p.m.
4 : 40 p.m.
4:50 p.m.
4 : 55 p . m.
5:05 p . m.
5:10 p.m.

1.4 to 2.6 percent
1.4 to 2.9 percent
1 . 4 to 1.5 percent
1 . 8 to 2.9 percent
2.4 to 3.1 percent
2 . 2 to 2.5 percent

- He took the readings about 4 inches in front of the screen and
12 inches from the roof.
6. Inspector Davis also recorded 3 air velocity
measurements in his notes (between 4 : 3 O and 5 : 1 o p. m. ). •
7. During the 40 minutes in which he took hand-detector
measurements, Inspector Davis observed that the methane level was
slowly starting to rise. To check whether there was compliance
with the 2 percent methane limit, he conducted chemical smoke
tests to find observe the mixing of the air cur.r ents in the
bleeder and return entry, in order to find a place to take bottle
samples .
8 . Inspector Davis began puffing the chemical smoke in the
return entry and saw it move into the bleeder connector. Using
an approved method of slowly releasing a puff of smoke, following
it, and then releasing another puff of smoke, he proceeded into
the bleeder connector towards the regulator. In this ma nner, he
located the point where the return air and bleeder air current
mixed . Inspector Davis then used chemical smoke to establish a
point near the mixture point. There he took three air bottle

1252

samples, about -5:'05. p-. m., at three locations about 4 inches in
front of the screen, and 12 inches from the roof.
9.
The three bottle samples were analyzed by the MSHA
laboratory in Mt. Hope, west Virginia, and showed methane
concentrations of 1.860 percent, 2.850 percent, and
3.450 percent.

10 . In addition to his observations and measurements,
Inspector Davis made notes of the methane readings taken with the
hand-held monitor, and drew a sketch of the air flow patterns in
the vicinity of the mixing point he observed through chemical
smoke tests.
11 . on June 29, 1993, Inspector Davis prepared a memorandum
for his District Manager (MSHA District 2) describing in··detail
the circumstances surrounding the issuance of Citation
No. 3708698 .
12. A week before the citation on December 2, 1992,
Inspector Davis had observed an air reversal problem in the same
bleeder. On December 2, he concluded that the air reversal
problem could be recurring and causing a methane build-up in the
gob area .
13 . In inv estigating the rising methane levels, Inspector
Davis checked the mine records and determined that the sur·f ace
borehole in the area of the bleeder was not in operation at the
time the rising methane levels were observed.
14 . In assessing the violation alleged in Citation
No. 3708698 as significant and substantial, Inspector Davis
considered the documented rising levels of methane in the
bleeder, the possibi lity that methane was building up in the gob
area due to an air reversal malfunction, and the possibility that
roof falls in the gob area , and the snapping of roof bolts in
that area, could create methane ignition sources. He also
considered that a flame from a safety lamp or a faulty methane
detector carried by a mine examiner could be ignition sources.
15. On December 3, 1992, the day after Inspector Davis'
citation, Mr. Zeanchock told Robert DuBreucq, Superintendent at
Mine No. 3 3 , that Mr. Davis had not taken methane readings just
before the "mixing point" where the bleeder air joined the return
air. Mr . DuBreucq sent Mr. Zeanchock and James Pablic, another
foreman at Mine No. 33, to BEP 54 to establish the mixing point
and take readings. They released smoke in the return entry
against the right rib, and saw the smoke flowing along the rib
and into the bleeder entry along the rib for about 4 to 5 feet.
In their opinion, this was the "mixing point . " The roof had
previously been marked at that point to indicate the place where
company mine examiners regularly took methane readings. This

1253

point was about--8 · feet ·from the place where Inspector Davis took
the bottle samples.
16. The roof in No. 33 Mine is composed of sandrock and
shale. Sandrock is highly prone to sparking.
17. The mine liberates over 11 million CFM of methane in a
24-hour period.
18. Sparki'ng can occur in a gob area from pieces of roof
striking against one another or striking against roof bolts or
other metal objects.
DISCUSSION WITH FURTHER
FINDINGS, CONCLUSIONS
Section 75.323(~), which was promulgated in 1992, provides:
Bleeders and other return air courses.
The concentration of methane in a bleeder split of air
immediately before the air in the split joins another
split of air, or in a return air course other than as
described in paragraphs (c) and (d) of this section,
shall not exceed 2.0 percent.
When the new standard was promulgated, the Preamble to
Safety Standards for Underground Ventilation stated the following
as to§ 75.323(e):
·Paragraph (e) permits no more than 2.0 percent methane
to be present in a bleeder split of air at a point just
before the air in that split enters another split of
air. Also, for return air courses, other than those
addressed in paragraphs (c) and (d), paragraph (e)
permits no more than 2.0 percent methane to be present.
Thus the final rule retains the maximum permissible
methane limits established in existing § 75.329 and
makes mandatory the existing § 75.316-2 criteria
concerning the methane limit in return air courses.
[57 Fed. Reg. 20879 (1992).]
Section 75.323(e) replaced 30 C.F.R §§ 75.329 and
75.316-2(h). Section 75.329 read as follows in relevant part:
Air coursed through underground areas from which
pillars have been wholly or partially extracted which
enters another split of air shall not contain more than
2.0 volume per centum of methane, when tested at the
point it enters another split.

1254

Section--·75. 316-2-Ch) read as follows:
The methane content of the air current in a bleeder
split at the point where such split enters any other
air split shou~d not exceed 2.0 volume per centum.
As discussed below, I construe the phrase "immediately
before" in § 75.323(e) as clarifying the requirement that bleeder
air be measured as close as reasonably possible to the point
where it joins another split of air. The substitution of "joins"
in § 75.323(e) fbr "enters" in the predecessor standards does not
indicate any material change. The Preamble's use of "enters" in
discussing the new standard suggests that the drafters intended
"joins" to be synonymous with "enters." · Also, the Preamble
states that "the final rule retains the maximum permissible
methane limits established in existing § 75.329 and makes·mandatory the existing § 75 . 316-2 criteria concerning the methane
limit in return air courses" -- with no indication that case law
for the predecessor standards was intended to be modified.
In Christopher Coa·l Company, 1 FMSHRC 1 (1978), the
Commission affirmed a withdrawal order based upon a violation of
§ 75.329, which placed a 2 percent methane limit on the air
coursed through a bleeder connector "when tested at the point it
enters" another split of air.
The facts of Christopher Coal Company are strikingly similar
to the present case. The inspector took methane readings and a
bottle sample in front of a cement block regulator 30 feet from
the intersection of the bleeder connector and the main air
return. The bottle sample established a methane content of
5.38 percent.
The operator contended that the bottle sample was
not at ·t he proper location because § 75.329 did not intend that
the methane test be taken before the bleeder air left the bleeder
split and joined the air return. The Commission affirmed the
decision of Administrative Law Judge Cook, who ruled that "the
regulation requires that the test be made before the bleeder air
actually leaves the bleeder split of air and joins with the main
return split." Christopher coal Company (Docket No. MORG 76-8-P;
unpublished opinion by Judge John Cook; October 18, 1976).
The Commission affirmed Judge Cook's holding that the
inspector had performed the methane test in a proper location
even though his sample was taken directly in front of the cement
block regulator and 30 feet from the intersection of the bleeder
connector and the main return. This holding was based upon Judge
Cook's finding that, due to turbulence caused by the intersection
of the main entry split of air with the bleeder split of air, and
turbulence caused by the regulator itself, the location of the
inspector's measurement was "as close as was reasonably possible
to the place where the two splits of air join but before the

1255

bleeder air ·efntered- th.e main entry." Thus, the Christopher Coal
Company decision stands for the propositio·n that "at the point
.[where bleeder air] enters" a return ·s plit of air means "as close
as reasonably possible" to the point where the two splits of air
join and before the bleeder air is d~luted by return air.
I conclude that § 75.323(e) requires (1) that the methane
reading be taken in the bleeder split as close as reasonably
possible to the ~ point where the air in the bleeder split joins
the return split of air and (2) that the reading . be taken at a
point where the bleeder air is not diluted by return air.
The testimony of Inspector Davis concerning his use of
chemical smoke tests, and his explanation of the diagrams he
prepared depicting the air currents, reasonably establish that
air current from the return entry was being pulled into the
bleeder connector and mixing with bleeder air. Based upon these
observations, he took bottle samples about 4 inches in front ·Of
the screen device in the regulator, 14 or 15 feet inby the
intersection of the bleeder connector and the return entry.
Edward Miller, MSHA's Chief of the Ventilation Division, .
stated that the configuration of air currents described by
Inspector Davis and illustrated in his diagrams constituted a
"venturi effect." Mr. Miller explained a venturi effect to mean
that a high velocity of air flowing through the regulator and out
of the bleeder connector was "pulling some air in from the return
and actually having that turn around and go back the other
direction." (Tr. pp. 126 and 130.)
The venturi effect explains why Inspector Davis, relying
upon chemical smoke tests, took bottle samples near the screen of
the regu~ator rather than closer to the intersection of the
bleeder connector and the return entry. Under the reasoning of
Christopher, Inspector Davis performed methane tests at "the
nearest point where he could get an accurate measurement of the
methane content in the air current coming out -of the bleeder" (at
1689).
Mr. Zeanchock, the company supervisor who accompanied
Inspector Davis, testified that he disagreed with Inspector
Davis' determination of the proper place to take the air bottle
samples. However, Mr. Zeanchock did not raise such concerns with
the inspector or attempt to establish the proper test point
himself until he returned to the bleeder connector approximately
7 days later. Mr. Zeanchock testified that when he and the mine ··
shift forem~n returned the following week, their smoke tests
established the mixing point to be "4 or 5 feet off of the room
neck" which is about 8 feet from where Inspector Davis took his
air bottle samples-. (Tr. 13 9. )
·

1256

Conside~ing · the- ~hanges in air velocities and turbulence
that can occur over time and affect the proper location to take
methane tests, I find Inspector Davis' testimony and tests to be
more reliable in determining the conditions that existed at the
time of the citation. Also, I qredit the testimony of the
Secretary's ventilation expert, Mr. Miller, who gave the
following · opinion as to Inspector Davis' methodology and test
location:

Now, you heard the testimony of Inspector Davis
with regard to how he took the bottle samples which are
the basis for the violation at issue today. Do you
have an opinion within a reasonable degree of certainty
as a ventilation specialist as to whether or not ·
Mr. Davis was in a proper location when ·he took the air
bottle samples?

Q.

A. It's my opinion that Inspector Davis took the
sample at the only location he could take it and be
assured that it was not mixing with return air.
[Tr. p. 118.J.
I find that a preponderance of the reliable evidence
establishes that Respondent violated § 75.323(e) by permitting an
accumulation of methane in excess of 2 percent in the bleeder
connector, at a point immediately before the bleeder split of air
joined the return split of air.
Under the Commission's test for a· significant and
substantial violation (Mathis Coal Company, 6 FMSHRC 1,
3-4 (1984), et al), I find that the violation was reasonably
likely to result in serious injury. 1 In finding an S&S
violation, Inspector Davis considered the documented rising
levels of methane in the bleeder, the possibility that methane
was building up in the gob area due to an air reversal
malfunction at that site, and the possibility that roof falls and
the snapping of roof bolts in the gob ·area cou1d create methane
ignition sources. He also considered that a flame from a safety
lamp or a faulty methane detector carried by a mine examiner
could be ignition sources. Taken as a whole, I find that the
reliable evidence supports the inspector's finding that the
violation was significant and substantial.
Considering all of the criteria for civil penalties in
llO(i) of the Act, I find that a civil penalty of $288 is
appropriate.
§

In Mathies the Co~ission held that an S&S violation exists
if the violation is reasonably likely to result in an injury of a
reasonably serious nature.
1

1257

-- -· - -CONCLUSIONS OF LAW
1.

The judge has jurisdiction.

2. Respondent violated 30 C.F.R. § 75.323(e) as alleged in
amended Citation No. 3708698.
ORDER
WHEREFORE IT IS ORDERED that:
1.

Citation No. 3708698 as amended is AFFIRMED.

2. Respondent shall pay a civil penalty of $288 within
30 days of the date of this Decision.

tJ.dL;_~
William Fauver
Administrative Law Judge
Distribution:
Nancy Koppelman, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, 14480 Gateway Building,_
Philadelphia, PA 19104 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll Professional
Corporation, 600 Grant Street, 57th Floor, Pittsburgh, PA
(Certified Mail)
/lt

1258

15219

PBDBRAL JUBB ··SAFETY MID HEALTH RBVXBW COIOUSSXOH
OFFICE OF ADMINISTRATIVE LAW Jli>GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN l 0 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
DAGS BRANCH COAL CO. INC.,
Respondent

.: CIVIL PENALTY PROCEEDING
: Docket No. KENT 93-994
: A. C. No. 15-17287-03506
.
.:. Mine : No. 1
DECISXON

Appearances:

Before:

Donna E. Sonner, Esq. , Office of the Solicitor,
u. s. Department of Labor, Nashville, Tennessee
for the Petitioner;
Mark Altizer, Project Manager, Dags Coal Branch
Company, Meta, Kentucky, for the Respondent.

Judge Feldman

The hearing in the above proceeding was convened on
May 19 , . 1994, in Prestonsburg, Kentucky. The hearing conc erned a
petition for civil penalty filed by the Secretary of Labor
against the corporate respondent pursuant to Section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 u.s . c. § 801,
et . seq., (the Act) .
This case involves five citations with a total proposed
civil penalty of $4,782. At the commencement of the hearing the
respondent stipulated that it is a mine operator subject to the
Act . The parties also stipulated that the respondent is a
medium-sized operator that employs approximately sixty
individuals with a yearly payroll of approximately $2,500,000.
During the course of presenting stipulations prior to the
presentation of the Secretary's direct case, the respondent
contended that it is in financial distress and that paying the
total proposed civil penalty would result in a severe hardship .
(Tr. 18-19). Although I · concluded the payment of the $4,782
proposed penalty would not jeopardize the continuing viability of
the r~spondent given the size of its payroll, counsel for the
Secretary requested time to confer for the purpose of settling
this matter.
(Tr. 20-21).

1259

After cenfe·rring~, ·the parties advised me that they had
reached a settlement. The settlement terms were that the
respondent would accept the citations as issued . In return, the
Secretary agreed to reduce the total civil penalty by thirty
percent in view of the respondent's reported financial
difficulties . The thirty percent reduction results in a
reduction in civil penalty from $4,782.00 to $3,347.40. The
specific reductions for each of the five citations were presented
on the record and are incorporated by reference. (Tr. 22).
The record was kept open in order to receive financial
information from the respondent to justify the thirty percent
reduction. The respondent provided the requisite financial
information to counsel for the Secretary. Counsel for the
Secretary forwarded this information to me on June 6, 1994.
ORDER
In view of the above, the parties' motion to approve
settlement IS GRANTED. Accordingly, IT IS ORDERED that the
respondent pay a civil penalty of $3,347.40 in satisfaction of
the five citations in issue. Payment is to be made to the Mine
Safety and Health Administration within 30 days of the date of
this Decision. Upon timely receipt of payment, these cases
ARE DISMISSED.

cf}_ ,- - - .

_Q} ~

Jerold Feldman
Administrative Law Judge
Distribution:

(Certified Mail)

Donna E. Sonner, Esq., Office of the Solicitor, u. s. Department
of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN
37 215-2862
Mark G. Altizer, Dags Branch Coal Company, Inc . , 123 Lower Johns
Creek Road, Meta, KY 41501

/11

1260

FEDERAL llDJB SAFETY ARD BRAI TH RRvLBW COlllCISSIOH
1

OFFICE Of ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
.
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 1 0 1994
ROY FARMER AND OTHERS,
Complainants

COMPENSATION PROCEEDING

v.

Docket No. VA 91-31-C

ISLAND CREEK COAL COMPANY,
Respondent

..

VP-3 Mine

ORDER OF DISMISSAL
Before:

Judge Melick

Complainants, in essence, request approval to withdraw
their Complaint in the captioned case upon satisfactory payment
of compensation under the terms of a settlement a eement.
Under the circumstances herein, permission to wit raw .is
granted. 29 C.F.R. § 2700.11. This case is ther ore .DISMISSED.

f ary Me
rdminis

Law Judge

Distribution:
Gregory L. Hawkins, Esq., United Mine ' rkers of America,
900 Fifteenth st., . N.W., Washington, D.C. 20005 {Certified
Mail)
Thomas A. Stock, Esq., Crowell and Moring, 1001 Pennsylvania
Ave., N.W., Washington, D.C. 20004-2595 (Certified Mail)
Roy Farmer, Miner Representative, Island Creek Coal Company,
P.O. Box 63, Swords creek, VA 24649 (Certified Mail)
lh

1261

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

JUN 1 3 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

.: CIVIL PENALTY PROCEEDING
Docket No. WEVA 94-26
.

:

A.C. No. 46-05890-03549
Tug Valley Coal Processing

TUG VALLEY COAL PROCESSING
COMPANY,
Respondent
PECISION APPROVING SETTLEMENT

Before:

Judge Barbour
Statement of the Proceeding

This proceeding concerns proposals for assessment of a civil
penalty filed by the Petitioner against the Respondent pursuant
to Section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. S 820(a), seeking a civil penalty assessment for
one alleged violation of certain mandatory safety standard found
in Part 56, Title 30, Code of Federal Regulations. The
Respondent filed a timely answer denying the alleged violation.
The parties now have decided to settle the matter, and the
Secretary has filed a motion pursuant to Commission Rule 31,
29 ·C.F.R. S 2700.31, seeking approval of the proposed settlement.
The citation, initial assessment, and the proposed settlement
amount are as follows:
Citation No.
3991883

07/20/93

30 C.F.R. §

Assessment

Settlement

77.404{a)

$412

$412

In support of the proposed settlement disposition of this
case, the parties have submitted information pertaining to the
six statutory civil penalty criteria found in Section 110(i) of
the Act, included information regarding Respondent's size,
ability to continue in business and history of previous
violations. In addition, the Respondent has agreed to pay in
full the proposed civil penalty.

1262

CONCLUSION

After review and consideration of the pleadings and
submissions in support of the motion to approve the proposed
settlement of this case, I find that approval of the full payment
is reasonable and in the public interest. Pursuant to 29 C. F.R.
S 2700.31, the motion IS GRANTED, and the settlement is APPROVED .
ORDER
Respondent IS ORDERED to pay a civil penalty in the amount
shown above in satisfaction of the violation in question .
Payment is to be made to MSHA within thirty (30) days of the date
of this proceeding and upon receipt of payment, this proceeding
is DISMISSED.

,
_})?///

-!

<!£B~~

David F. Barbour
Administrative Law Judge
Distribution:

Pamela s. Silverman, Esq . , Office of the solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard , Suite 516,
Arlington, VA 22203
Thomas L. Clarke, Esq . , Tug Valley Coal Processing Company,
50 Jerome Lane, Fairview Heights, IL 62208 .
/fb

1263

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

20006

June 14, 1994
SECRETARY OF LAB.PR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA}
Petitioner

.

CIVIL PENALTY PROCEEDING
Docket No. SE 93-367-A
. A. C. No~ 01-01247-04072

v.
No. 4 Mine
JIM WALTER RESOURCES
INCORPORATED,
Respondent

..
:

DECISION
Appearances:

William Lawson, Esq., Office of
the Solicitor, u. s. Department of Labor,
Birmingham, Alabama, for the Petitioner;
Stanley Morrow, Esq., Jim Walter Resources
Incorporated, Brookwood, Alabama, for the
Respondent.

Before:

Judge Merlin

This case is a petition for the assessment of a civil
penalty filed by the Secretary of Labor against Jim Walter
Resources Incorporated under section 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 820.
Statement of the Case
The violation in this case, Citation No . 3187628, and seven
other violations were originally contained in Docket No. SE 93367 which was set for a calendar call on February 2, 1994. All
eight violations were discussed on the record at the calendar
call, and the parties agreed to settle the other seven. On
February 8, 1994, an order was issued creating this docket and
removing Citation No. 3187628 from SE 93-367 and placing it into
SE 93-367-A. A decision approving settlement has been issued for
the seven violations remaining in Docket No. SE 93-367, disposing
entirely of that docket number. on February 17, 1994, a notice
of hearing was issued for SE 93-367-A and this case was set for
hearing.
Citation No. 3187628 was issued as a 104(a) citation, for an
alleged violation of 30 c.F.R. § 75.380(d). A hearing was held
on April 19, 1994, the transcript has been received and the
parties have filed post hearing briefs.

1 26 4

30 C.F.~ . . § 75·.·3·80(d) sets forth the following:
(d) Each escapeway shall be (1) Maintained in a
safe condition to always ensure passage of anyone,
including disabled persons;
(2) Clearly marked to show the route and direction of
travel to the surface;

(3) Maintained to at least a height of 5 feet from the
mine floor to the mine roof, excluding the thickness of
any roof support, except that the escapeways shall be
maintained to at least the height of the coalbed excluding the thickness of any roof support where the
coalbed is less than 5 feet;
(4) Maintained at least 6 feet wide except- (i) Where
necessary supplemental roof support is installed, the
escapeway shall be not less than 4 feet wide; or
(ii) Where the route of travel passes· through doors or
other permanent ventilation controls, the escapeway
shall be at least 4 feet wide to enable miners to
escape quickly in an emergency;
(5) Located to follow the most direct, safe and
practical route to the surface; and
(6) Provided with ladders, stairways, ramps, or
similar facilities where the escapeways cross over
obstructions.

Citation No. 3187628 dated April 8, 1993, and challenged
herein, charges a violation for the following alleged condition
or practice:
The secondary escapeway off No. 9 section, No. 6
section, and No. 1 longwall was not being maintained in
safe condition to always ensure safe passage of anyone,
including disabled persons· in that at least 10 overcast
along this route were not provided stairways that are
at least 4 foot wide, and these stairways were not
provided with handrails.
The inspector found that the foregoing violation was significant and substantial and that it resulted from a moderate degree
of negligence on the part of the operator.
Prior to going on the record, the parties agreed to the
following stipulations (Tr. 6-9):
(1)

The operator is the owner and operator of the subject

mine.

1265

( 2) The . operato-r and the mine are subject to the
jurisdiction of the Federal Mine Safety and Health Act of 1977.
(3)

I have jurisdiction of this case.

The inspector who issued the subject citation was a
duly authori.zed representative of the Secretary.
(4)

A true-and correct· copy of the subject citation was
properly served upon the operator.
(5)

(6)
A copy of the subject citation and a copy of the termination of the violation in issue in this proceeding are authentic
and may be admitted into evidence for purposes of establishing
their issuance but not for the purpose of establishing the
truthfulness or relevancy of any statements asserted ther~in.

(7)
Payment of any penalty will not affect the operator's
ability to continue in business.

(8)

The operator demonstrated good faith abatement .

(9)
The operator has an average history of prior violations
for a mine operator of its size.

(10)

The operator is large in size.

(11) The facts set forth in the subject citation are
admitted as written .

Evidence of Record
On April 8, 1993, the MSHA inspector examined the secondary
escapeway at the operator ' s Number 4 Mine. He stated that
escapeways are avenues which allow miners to leave their work
areas in the event of an emergency (Tr. 19). In the subject mine
the primary escapeway is the track entry on intake air which is
fresh air going toward working and longwall faces (Tr. 24-25, 6263, 82, 86).
In the event of an individual injury the primary
escapeway would be used to evacuate the person (Tr. 43). The
secondary escapeway located on return air would be used to leave
the mine if an emergency such as an ignition or fire rendered the
primary escapeway unusable (Tr . 35-36, 86-87). The inspector
testified that the cited secondary escapeway is several thousand
feet in length and that it took him an hour or two hours to walk
it {Tr. 23).
An overcast is similar to an air bridge. It is designed not
to leak air {Tr. 26). Air can pass through a door in the
overcast going in one direction and on top of the overcast in the
other direction (Tr. 62). In this situation intake air was going
through doors in the overcasts (Tr. 62). Return air was ·going

1266

over the ov.erc~sts - and this path constituted the secondary
escapeway (Tr. 62-63). overcasts are made of mortared concrete
blocks with a steel structure on top with rock dust bags over
them (Tr. 26). They extend 20 feet from one side of the
escapeway entry to the other, are 3 to 5 feet high and present
the appearance of a concrete wall (Tr. 25-28). The distance
between the top of the overcast and the top of the mine roof
varies depending on the size of the opening and how much has been
cut out for tha overcast (Tr. 28-29).
Overcasts are generally grouped in twos and threes to
separate intake air from return air and direct the air flow
(Tr. 30-32). The ten cited overcasts were grouped in this manner
and the stairs going over them consisted of blocks left over from
construction (Tr. 32). The blocks were stairstepped up and
loosely stacked two abreast from the bottom (Tr. 33). a~cause
the overcasts were fairly high, the stairs extended about 4 or 5
feet off the mine floor (Tr. 33). The inspector estimated that
the stairs were about 2 feet wide, but he did not measure the ·
blocks and had never measured any such concrete blocks (Tr. 3334, 83-84). He admitted that some of the stairs could have been
as much as three feet wide (Tr. 84). He did not recall how each
set of stairs was constructed and acknowledged that they were not
all the same (Tr. 84-85). · The inspector further testified that
the stairs were loose, rickety, cumbersome and not mortared, but
he did not include any of those conditions in the citation
(Tr. 51, 63).
Based upon the assumption that the stairs were two feet
wide, the inspector was of the opinion that they were not
adequate to insure safe passage of anyone including disabled
persons (Tr . . 69). In the inspector's view four people would be
ideal to carry a stretcher over the overcasts (Tr. 46). He
believed 2 foot wide blocks would be inadequate, because even if
only two persons were carrying the stretcher they would have to
stop and lift the person on top of the overcast and slide him
across the top (Tr. 49). A crew of four persons would not have
sufficient room (Tr. 49). The inspector believed that 4 foot
wide stairs would provide ample room to carry a stretcher over
the overcasts without stopping (Tr. 49-50).
Findings and Conclusions
The requirements of the several subparagraphs of paragraph
(d) of 30 C.F.R. § 75.380 are cumulative rather than alternate in
nature. Subparagraph (1) imposes a general duty to maintain
escapeways in a safe condition to insure safe passage including
disabled persons. Subparagraph (2) additionally requires that
the route of travel be clearly marked. succeeding subparagraphs
impose further conditions.

1267

Some of.... ..the .conaitions in paragraph (d) apply only to
specific situations. The 4 foot width requirement for escapeways
set forth in subparagraph (4) (ii) applies only where the
escapeway route of travel passes through a door or other
ventilation controls. It is not, therefore pertinent here where
the route of passage was not through a door in the overcast but
rather over the overcast (Tr. 29, 62-63). The inspector did not
issue the citation under this provision (Tr. 66).
It must also be noted that subparagraph (6) of paragraph (d)
requires that escapeways be provided with ladders, stairways,
ramps or other similar facilities where, as here, an escapeway
crosses over an obstruction. Unlike the provision applicable to
escapeways going through obstructions, the mandate for staircases
and other facilities that go over obstructions sets forth no
minimum width. 57 F.R. 20905 (May 15, 1992). The inspector did
not mention subparagraph (6) either in the citation or in his
testimony.
In light of the foregoing, it is clear that there is no
express requirement that stairs going over an overcast be at
least four feet wide. The inspector stated that he based the
citation upon subparagraph (l} which as aiready noted, directs
that each escapeway be maintained in a safe condition to always
ensure passage of anyone, including disabled persons (Tr. 66-67}.
In determining whether the general obligation for safe escapeways
imposed by subparagraph (l} has been satisfied, each case must be
examined and judged on its facts.
When asked why he believed the escapeway would not insure
safe passage of disabled persons, the inspector gave
contradictory responses. He repeatedly stated that he issued the
citation because the stairs were rickety, loose and not mortared
(Tr. 51, 69, 72, 74}. However, he admitted that he had not
included those circumstances in the citation (Tr. 63). When
asked why he did not put in the citation that the stairway was
rickety and loose, the inspector answered, "If- I sit and write
every detail that I think is important in every citation I issue,
I may never get my job done" (Tr. 71).
The citation also refers to the absence of handrails and the
inspector stated that if handrails had been present, he would not
have looked at rickety and loose as being important (Tr. 72-73).
At another point, he stated that all these factors played a part.
But he immediately followed up by saying that if the stairs had
been wide enough, he would not have found a violation even had
there been no handrails (Tr. 72-73). The inspector . acknowledged
that if the stairs. had been the way he saw them, but had been 4
feet wide, he would not have issued the citation (Tr. 74-75). As
he finally stated, four feet was the "bottom line" (Tr. 75). In
light of the foregoing, I conclude that the inspector's finding

1268

of violatioo-was· premised upon the fact that the stairs were not
4 feet wide.
Under the general duty provision of subparagraph (1) the
staircases cited by the inspector must be evaluated to determine
whether 4 foot wide stairs were necessary to insure safe passage.
The record demonstrates that the citation is not based upon an
evaluation of the staircases which allegedly violated the
mandatory standard. Although he remembered that the staircases
were not all the same, the inspector did not recall how they were
constructed (Tr. 84-85). The inspector conceded that he did not
measure the concrete blocks he cited and, indeed, had never
measured any such blocks (Tr. 33, 83-84). He granted that some
of the steps he cited could have been three feet wide depending
on how they were stacked (Tr. 84). When confronted with his
actions, the inspector said, "I wish I had to do this all over
again. I would measure them and tell you exactly. I didn't take the time to do it . " (Tr. 84) .
There is therefore, no factual support for the inspector's
finding that the staircases were unsafe because they were only
two feet wide (Tr. 34). Moreover, the inspector's judgement that
stairs four feet in width were necessary for safe passage cannot
be accepted as a basis for finding a violation, because his
conclusion was not predicated upon the characteristics of the
staircases he cited. Since the inspector did not remember the
features of these staircases, approval of his actions would
constitute imposition of a blanket requirement that staircases
going over overcasts be 4 feet wide. This is precisely what the
mandatory standard fails to demand of staircases and other
facilities that cross over obstructions. As set forth above, the
Secretary knows how to require minimum widths for escapeways when
he wants them, such .as when the escapeway route of travel goes
through an overcast. If it is the Secretary's wish that such an
obligation obtain in a case like this independent of the
particular facts, he should do what he has done before in like
situations, i.e., engage in rulemaking. The adjudicatory route
will not afford him the relief he seeks on a record such as the
one made in this case.
In light of the foregoing, I conclude that the Secretary has
failed to make out a prima facie case and that his penalty
petition must be dismissed.
The foregoing is dispositive of the case . However, one
further matter must be noted. At the outset of the hearing the
Solicitor argued that if a violation occurred, it must be held
significant ·and substantial because an underlying emergency,
e.g., fire, explosion, should be presumed. The Solicitor
advanced ·t his position for the first time at the hearing. This
case was discussed at a calendar call but the Solicitor did not
raise this issue. Subsequently, preliminary statements were

1269

filed and again,.. the .Solicitor did not raise the issue. At my
request, the parties briefed the issue in their post hearing
briefs. However, upon review of the record I find that the
failure of the Solicitor to bring up this matter before the
commencement of the hearing was materially prejudicial both to
the operator and to me. Operator's decision not to bring any
witnesses to the hearing, might well have been different had the
Solicitor made his intentions known in a timely manner. Even
more importantly_, if this issue had been reached in this case, I
would have been deprived of the record necessary to determine
whether adoption of the presumption was justified. What the
Solicitor overlooks is that the adoption of a presumption cannot
be divorced from consideration and analysis of the facts upon
which it is sought to be justified.
The post-hearing briefs filed by the parties have been
reviewed. To the extent the briefs are inconsistent with. this
decision, they are rejected .
ORDER
It is ORDERED that Citation No. 3187628 be and is hereby
VACATED.
It is further ORDERED that the penalty petition filed in
this case is DISMISSED.

\~
Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

William Lawson, Esq., Office of the Solicitor, U. s. Department
of Labor, Chambers Bldg., Highpoint Office Center, Suite 150, 100
Centerview Drive, Birmingham, AL 35216
R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P.
133, Brookwood, AL 35444
/gl

1270

o. Box

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

JUN 2 O1994

..
..

CLARK WILLIAMSON,
Complainant

v.
ELKAY MINING COMPANY,
Respondent

DISCRIMINATION PROCEEDING
Docket No. WEVA 93-406-D
HOPE CD 93-15
Tower Mountain Mine

ORDER OF DISMISSAL

Before:

Judge Hodgdon

This case is scheduled for hearing on June 21, 1994, in
Logan, West Virginia. On June 6, 1994, the Complainant submitted
a letter stating that he desi;red to withdraw the case "without
prejudice." Th~ Respondent opposed dismissing the matter
"without pr~judice."
In a telephone conference call on this date, I advised
Mr. Williamson that the only way that the case would be dismissed
would be "with prejudice." Knowing that, he stated that he still
desired to have the case dismissed. The Respondent had no
objection to the case being dismissed "with prejudice."
Accordingly, it is ORDERED that the hearing set for June 21,
1994; is CANCELED and that this case is DISMISSED with prejudice.

J~~
T. Todd ~~i~o~

Administrative Law Judge

Distribution:
Clark Williamson, P.O. Box 95, Peach Creek Road, WV
(Certified Mail)

25639

Linden R. Evans, Esq., Jackson & Kelly, 1600 Laidley Tower,
P.O. Box 55s, Charleston, WV 25322 (Certified Mail)
/lbk

1271

FEt>ERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
. ..

--

.... - .
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DISCRIMINATION PROCEEDING

JAMES E. DeROSSETT,
Complainant

v.

M & MB COAL COMPANY,
Respondent

Docket No.
:

Pike CD

KENT 94-285-D

92-16

No. 4 Mine
ORDER OF DISMISSAL

Before:

Judge Weisberger

On May s, 1994, an Order to Show Cause was issued which
inter alia, contained the following language "Accordingly,
complainant shall, within 10 days of this order, either file a
response to the Pre-hearing Order, or file a statement setting
forth good cause why the Pre-hearing Order was not complied with.
If Complainant does not comply with this Order, a Decision will
be issued dismissing the complaint."
Complainant has not complied with this order.
it Ordered that this case be DISMISSED.

~j;;erger

Accordingly,

Administrative Law Judge

1272

Distributfon·:

. .. - - - .

Mr. James E. DeRossett, Esq., HC 89, Box 829, Allen, KY
(Certified Mai.l )

41601

Mr . Marvin Biliter,{ Jr., 267 Green Road, Stambaugh, KY
(Certified Mail) ·

41257

M & MB Coal Company, HC 267 , Box 6659, Stambaugh, KY
(Certified Mail)
/efw

1273

41257

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

JUN 2 1 1994

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

v.

AMERICAN ASPHALT PAVING,
Respondent

... CIVIL PENALTY PROCEEDING
No. PENN 93-428-M
. Docket
A.c. No. 36-00005-05514
.
. Chase Quarry
.
DECISION

Appearances:

Anthony G. O'Malley, Esq., Office of the
Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Mr. Bernard c. Banks, Jr., Executive Vice
President, American Asphalt Paving, Shavertown,
Pennsylvania, for the Respondent.

Before:

Judge Barbour
STATEMENT OF THE CASE

In this proceeding the Secretary of labor· (Secretary}, on
behalf of his Mining Enforcement and Safety Ad.ministration
(MSHA}, alleges that American Asphalt Paving Company (American
Asphalt} in eight instances violated 30 C. F.R. S 50.20, a
mandatory standard promulgated pursuant to the Federal Mine
Safety and Health Act of 1977 (Mine Act or Act), requiring in
pertinent part that "(e]ach operator • • • report each accident
• • • at the mine" by mailing to .MSHA Form 7000-1 "within ten
working days after an accident . " The Secretary further alleges
.that the violations were the result of the company's "high
negliqence." . The Secretary proposes civil penalties of $300 for·
each of the alleged violations and petitions for their assessment
pursuant to sections lOS(d) and 110 of the Act. 30 u.s.c.
SS 815(d}, 820. The proposed penalties were derived throuqh the
Secretary's special assessment procedures. 30 C.F.R. 5100.s .

1274

American Aspnart ·responds that it was unaware of MSHA
Form 7000-1 and the need to file such in the event of an
accident . Further, the company contends it d i d not exhibit the
high negl~gence attributed to it.
A duly noticed hearing on. the merits was held in
Wilkes-Barre, Pennsylvania. Anthony G. O'Malley, Jr. acted as
counsel for the Secretary. Bernard ·c. Banks, Jr., an executive
vice president -of the company, represented American Asphalt.
Subsequently, counsel for the Secretary submitted a helpful
brief.
STIPULATIONS
At the commencement of the hearing counsel stated that the
parties agreed as follows:
1. American Asphalt • • • is the owner and
operator of the Chase Qua~ry.
2. (American Asphalt] utilizes tools, equipment,
machinery, materials, goods and supplies in its
business which have originated in whole or in part
• • • outside • • • Pennsylvania.
3. [American Asphalt) engages in business which
affect[s) commerce.
4. Operations at the Chase Quarry are subject to
the [Mine Act).
5. The Administrative Law Judge has jurisdiction
to hear and decide th(e] case pursuant to section 105
of the Act.
6 • . MSHA Inspector Gerald R. Keith was acting in
his official capacity when he issued to (American
Asphalt] on April 1, 1993, eight [section) 104(a)
[c)itations for violations of • • • [section] 50.20.
7. True copies of the citations . • • were served
on [American Asphalt] . or its agents as required by the
Act.
8 . The Administrative Law Judge has the authority
to (assess) • • • appropriate civil penalt[ies) • • •
if he finds the citations •·
state violations of the
Act and· the [r)egulations.
9. [T]he violations • • • alleged in each of the
eight • • • citations did, in fact, occur in the manner
specified by the MSHA inspector.

1275

lo·-; ·- fT]he ·only issues • . • are whether the
inspector properly noted the degree of negligence
and, as a result, whether the proper penalty was
assessed.

Tr. 10-13. (nonsubstantive editorial changes made) • .
In explaining further the company's understanding of
stipulations 9 and 10, Banks stated, "[W]e have agreed that the
eight violations were cited. (W)e have agreed that the only
issue • • • is whether the inspector properly noted the degree of
negligence for each of the eight (violations) • • • • [The
company) also (is] going to be questioning whether there should
be one violation or eight violations." Tr . 19-20. Counsel for
the Secretary objected to this interpretation of the stipulations
maintaining the stipulations meant American Asphalt agreed that
eight violations occurred.
Banks is not an attorney . It was clear to me that if he had
believed the wording of the stipulations precluded arguing for a
single citation, he would not have agreed to stipulations 9 and
10. In other words, it was ·clear to me that there was no meeting
of the minds on this issue. I therefore overruled the objection
-and indicated that I would consider the representative's
single-citation argument. Tr . 21.
In addition, the parties agreed that -American Asphalt's
relevant history of previous violations is represented on Gov.
Exh. 1, a computed print-out generated by MSHA's assessment
off ice, and that the size of the company is accurately reflected
in Gov. Exh . 2, a copy of MSHA's proposed assessment sheet .
Tr. 13-14.
THE TESTIMONY
THE SECRETARY'S WITNESSES
Gerald Keith
Gerald Keith, an MSHA inspector with 17 years experience,
works in MSHA's Wyomissing, Pennsylvania field office.
Tr. 22-23. Keith is trained in the application and enforcement
of the mandatory regulations found in 30 c.F . R. Part so,
regulations that, among other things, pertain to an operator's
obligation to report accidents, occupational injuries and
occupational illnesses. One of Keith's duties is to monitor
compliance with Part so. This requires him to audit company
records for accidents resulting in injuries . Tr. 23-24.
on April 1, 1993, Keith went to American Asphalt's Chase
Quarry and Mill to conduct an audit of the company's accident and
injury reports . Tr. 25-26. The facility contains both a quarry

1276

and an asphalt- pla-:nt: · The plant is inspe~ted by the Occupational
Safety and Health Administration (OSHA). It was Keith's first
visit to the facility and the first time an official from MSHA
had audited the company's reports. Tr. 47, 58 .
Keith stated
there are 260 facilities audited by the Wyomissing field office
and it "just took this long to get around to (American Asphalt.]"
Tr. 62. Keith described the company's attitude during the audit
as one of "full cooperation." Tr. 55 .
At the company's office Keith asked to see copies of MSHA
Form 1000-2 1 the quarterly mine employment and production report
that operators are required to submit . See 30 C.F.R. S 50.30.
Keith reviewed the copies and noted that the line on which the
operator is asked "How many MSHA reportable injuries or illnesses
did you have this quarter?" was left blank on all of the copies.
Tr. 26-27; 44-45, 49; Gov. Exhs. 11, 12. Keith also reviewed the
company's workmen's compensation files and the forms on which the
company reported accidents to OSHA. The record~ indicated to
Keith that accidents had occurred at the quarry which should have
been reported to MSHA. Keith then checked the company's files
for MSHA Forms 7000-1, the form used to report accidents.
Tr. 28-32; ~ section 50.20. There were no copies in the files.
As a result of the inspection, Keith issued to American
Asphalt citations charging that between May 8, 1990 and
September 15, 1992, the company failed to report eight lost time
accidents and that each failure constituted a separate violation
of section so.20 . Tr. 36-37; Gov. Exhs. 3-10. The citations
where terminated when Gloria Suda, ·the company's executive
secretary, completed the required Forms 7000-1. Tr . 37.
Keith asked why the accidents had not been reported. He was
advised by company officials, including Banks, that American
Asphalt believed it had to submit accident report forms to OSHA
only, that submission of forms to MSHA was not required.
Tr. 41, 45-46, 50.
Keith had inspected many facilities similar to the American
Asphalt's in which inspection jurisdiction was divided between
MSHA and OSHA. Keith stated that at such facilities, frequently
he found MSHA-reportable accidents reported on OSHA forms as well
as on MSHA forms. However, that this was the first time he heard
an operator maintain it was unaware compliance with MSHA
regulations was required or that compliance with OSHA regulations
encompassed compliance with MSHA's requirements. Tr. 59-60.
Keith explained to company officials MSHA's regulations
regarding reportable accidents and advised the officials that
civil penalties assessed for the eight violations would be
determined by MSHA special assessment procedures. Tr. 38; ~
30 C. F.R. § 100.5.

1277

Keith stat~d · he - found the violations to be the result of
American Asphalt's high negligence because he followed MSHA
policy as set forth in its Program Policy Manual (PPM). The
policy requires such a finding absent mitigating circumstances.
Tr . 61, 62. (The PPM states, "Failure to report any accident,
(or) injury • • • should be considered highly negligent, absent
clear, mitigating circumstances . Any violations of Part 50
considered to be the result of a high degree of negligence shall
be referred for ~ special assessment." Tr. 46; Gov. Exh. 13.)
When asked what "high negligence" meant to him, Keith replied.it
was when the operator "really didn't know to •• • (report the
accidents] and should have done it but didn't." Tr. 61.
In Keith's view, submission of Form 7000-1 is important
because MSHA uses it to categorize accident types and to
calculate accident and injury statistics. Further, inspectors
receive a copy of each report submitted for mines they are
assigned to inspect and therefore can better focus their
inspection efforts. Tr . 41-42.
Charles McNeal
Charles McNeal supervises those inspectors who conduct
inspections at facilities within the jurisdiction of the
Wyomissing field off ice. McNeal also reviews citations issued by
the i nspectors and he reviewed the citations Keith issued to
American Asphalt . Tr. 67-68. As part of the review McNeal
discussed with Keith the findings of high negligence. McNeal
advised Keith that circumstances mitigating high negligence could
be things such as the person responsible for completing the MSHA
forms being sick or · American Asphalt assigning a new person to
complete the forms. Completion of OSHA forms rather than MSHA
forms would not be considered a mitigating circumstance because
MSHA advises operators about their duty to complete the MSHA
forms. Tr. 69-70 . According to McNeal, all operators receive
the PPM and its periodic updates . McNeal considered this to be
notice to operators that MSHA audits operators for compliance
with Part 50. Tr . 71 . McNeal also stated that MSHA was supposed
to provide operators with Part 50 forms. Tr . 88 .
McNeal understood that the information on Form 7000-1 was
tabulated by the MSHA Analysis Center in Denver which then
advised MSHA district off ices of problems causing accidents at
mines within the district . The information was reviewed by
inspectors prior to commencing inspections . In this way
inspectors were alerted to areas that required heightened
attention a~ the mines. Tr. 71-72.
McNeal stated that when a reportable accident occurred at a
facility inspected by both OSHA and MSHA, the accident was
reportable to the agency having jurisdiction over the accident

1278

site. Tr. 7·3. · ·OSHA. and MSHA do not share the information
reported . Ml.:.
McNeal maintained if an inspector issued to an operator a
citation for the violation of section 50.30 (failure to submit a
quarterly employment and coal production report on MSHA -Form 7000-2) the inspector invariable told the operator that any
accidents.during the quarter had to be report on MSHA Form
7000-1 . Tr. 78~79 . Further, an inspector always issued a
citation if a violation of Part 50 occurred because that is what
the law requires. An inspector never merely warned an operator
to comply in the future . Tr. 84-85.
AMERICAN ASPHALT'S WITNESSES
James Koprowski
James Koprowski is the company's personnel insurance manager
and safety directory. His duties include conducting safety
meetings and walk-around inspections and, in conjunction with the
company's insurers, evaluating accidents to determine what
remedial action is required. Tr. 93-94.
Koprowski stated that he attended various MSHA authorized
safety seminars. He acknowledged his familiarity with the safety
and health regulations promulgated by MSHA and published in the
Code of Federal Regulations, but he explained that "to go and
read through • • • [the CFR] verbatim and know what everything
pertains to, I just have too many other job duties to devote that
much attention to one particular booklet like that." Tr. 94-95.
Koprowski testified that Keith's inspection was the first
time an MSHA inspector had audited the company's records.
Tr. 109. Because he was hospitalized, Koprowski was not at the
mine office on April 1. Prior to the inspection he never had
heard of MSHA Form 7000-1 . Tr. 95 . Koprowski was unaware of the
PPM and did not know whether or not the company had a copy.
Tr. 96.
Koprowski believed that American Asphalt had a strong safety
program. He identified a copy of a memorandum detailing
American Asphalt's plans for safety instruction. These include
tool box talks, supervisory safety meetings, safety review visits
by Koprowski and a program in which the company cites those of
its employees who repeatedly violate company safety rules.
Tr. 98; Amer . Asph. Exh. R-1 . He also identified a policy
statement issued by Banks that emphasizes the company's concern
with safety. · It states in part, "If you see or observe anything
that you believ~ to be an unsafe condition or act, please report
it to your supervisor at once. In our company, there is no such
thing as a •safety nut'." Id. 6. Other company safety documents
include lists of management's and employees' responsibilities

1279

with regard ·to safety - standards for various tasks at the quarry
and a memorandum mandating employee attendance at company safety
meetings. ~ 7- 24; Tr. 98- 100 .
Koprowski explained the steps undertaken by the company when
reporting an injury. First, the foreman completes the form on
which the .· company reports the accident to the insurance company,
and if the accident requires medical attention or time away from
work, the forem~n reports the injury to OSHA on OSHA Form 200.
Next, a more complete report is sent to the company's insurance
carrier. Finally, and subsequent to April 1, 1993, MSHA Form
7000-1 is completed and submitted to MSHA.
Koprowski stated that at the time the citations were issued
he was unaware of Form 7000-1 or the regulatory requirements
pertaining to it .
He further stated that if Forms 1000..,,1 had
been sent to the company by MSHA, he would have received them,
which he never did. Tr. 107-108.
The company keeps copies of all of its . safety records,
including those for OSHA and workmen's compensation. The records
are kept by incident, there being a single file for each
accident. Tr. 110-111.
Gloria Suda
Gloria Suda described the process by which the company
reports accidents . She stated when she receives a report from
the superintendent and foreman that there has been an accident,
she completes an OSHA Form 200 followed by an insurance company
form . The forms are submitted first to Koprowski for approval,
then to the superintendent and foreman for them to initial and
then they are filed. After the citations were issued, the
company added MSHA Form 7000-1 to the procedure.
On April 1, 1993, when Keith asked to see the accident forms
for 1990, 1991 and 1992, Suda showed him the files containing the
OSHA forms. When he asked about MSHA Forms 7000-1, Suda told him
she was unaware of any. She also stated that she was unaware of
MSHA Forms 7000-2. Tr . 116-117 . The company made no effort to
conceal anything. _S he stated, "Everything's in the files."
Tr. 119.
Sharon Jennings
Sharon Jennings, an administrative assistant in the
company's m~terials department, has been employed by American
Asphalt for 6 years. One of her jobs is to complete MSHA Forms
7000-2 for the company. The person who filled out the forms for
the company previous to Jennings told Jennings to complete them
exactly as had been done in the past. Tr. 123, 126-127.
Jennings tried her best to follow this instruction, which meant

1280

she completed on1y·-"tne · lines pertaining to the man hours worked,
because this was what the person before her had done . She did
not include any data on injuries or illnesses because it had not
been included previously. Tr . 123-124. Jennings stated that
Forms 7000-2 were received quarterly from MSHA . Tr. 125. As far
as Jennings knew, the company never received Forms 7000-1 from
MSHA. Tr. 125-126 .
THE VIOLATIONS

American Asphalt does not contest the fact that it violated
section 50.20 when it failed to complete and submit to MSHA a
Form 7000-1 for each of the eight reportable injuries cited .
Rather, and as noted in the above discussion of the parties'
stipulations, it arques that it should have been cited once only
for failing to report the eight injuries.
This is an argument the Act itself answers. Section llO(a)
states: "Each occurrence of a violation of a mandatory health or
safety standard may constitute a separate offense." 30 u.s .c.
S820(a) (emphasis added). This lanquage gives discretion to the
inspector when confronted with a situation were multiple
infractions of the same standard have occurred. Here, where each
instance of a reportable violation is separate in time and
involves a distinct injury, I find that Keith did not abuse that
discretion in issuing separate citations.
The Act requires a civil penalty be assessed for each
violation. Having concluded the eight violations existed as
changed, the question becomes the proper civil penalty to assess
for each violation.
CIVIL PENALTY CRITERIA

Gravity
The regulatory reporting requirements are -more than just
clerical hoops through which an operator must jump. As both
Keith and McNeal explained, the regulations have a pragmatic
impact on effective enforcement of the Act. They are a basis for
the compilation and categorization of accident and injury
statistics, statistics that alert MSHA to problem areas in mine
safety and consequently permit the agency to more effectively
focus its industry-wide enforcement and education efforts.
Tr. 41-42, 71-72. In addition , the reporting requirements have a
mine-specific impact in that copies of the reports are reviewed
by inspectors prior to inspections. ~
Counsel for the secretary argues -- correctly, I believe -that compliance with the Part 50 reporting requirements is
"extremely important" and he has noted Chief Administrative Law
Judge Paul Merlin's observation . that Part so is a cornerstone of

1281

enforcement under · th~ - Act.
comments bear repeating:

Sec. Br. 11.

The Chief Judge's

Since Part 50 statistics provide the basis for
planning, training and inspection activities, accurate
reporting is essential. Moreover, failure accurately
to report could have extremely dangerous consequences
by concealing problem areas of a mine which should be
investigated by MSHA inspectors. In short, without
proper compliance by the operator under Part 50, the
Secretary could not know what is going on in the mines
and, deprived of such information, he would be unable
to decide how best to meet his enforcement
responsibilities.
Consolidation Coal Company, 9 FMSHRC 727, 733-734 (ApriL.1987).
To this I would add only that where·, as here, an operator
has failed totally to report as required, the harm that is done
in general to agency enforcement efforts may well rebound on the
particular mine involved because of a consequent failure to alert
MSHA authorities to an ongoing safety hazard. For these reasons
I conclude the violations were serious.
Negligence
Negligence is the failure to meet the standard of care
required by the circumstances. Because the reporting
requirements are central to effective enforcement of the Act, an
operator is under a high standard of care with regard to their
observance. This does not mean, however, that each violation of
Part 50 is necessarily the product of "high negligence" on the
operator's part. Keith found no circumstances in mitigation of
American Asphalt's negligence, but after hearing all of the
testimony and after considering all of the evidence, I do.
While I fully agree with counsel that a violation may not be
excused by an operator's failure to know compliance is required,
the concept of strict liability under the Act should not be
confused with negligence in failing to conform to its standards.
See Sec. Br. 7. In other words, there are instances -- and in my
opinion this is one -- where an operator's lack of knowledge
regarding compliance may be based on circumstances that mitigate
its negligence.
All of the witnesses agreed that MSHA previously had not
audited the records at the plant for Part 50 compliance. It is
important to· remember that MSHA's inspections are not simply
vehicles for enforcement, they also serve as teaching tools.
(In my opinion the instructional function of inspections has
become even more important since MSHA discontinued its compliance
assistance visit program . ) Here, employees at the facility did

1282

not have the-··bene·fit · of a previous inspection by which to learn
what the Part 50 regulations required of them .
It is all well and good for counsel to note that Koprowski,
who was in overall charge of Part so compliance, had the CFR
available to him and thus that American Asphalt had .information
readily available to know what section 50.20 requires.
Sec . Br. 7. However, the reality of the situation is that the
code is voluminous, and it is understandable that a regulation
may be overlooked, especially when its link to miners' safety is
derivative rather than immediate.
The company's failure to submit Forms 7000-1 is also
understandable in light of Jennings unrefuted testimony that MSHA
sent American Asphalt Forms 7000-2 on a quarterly basis but did
not send the company Forms 7000-1. Tr. 125. This is not· an
excuse for failing to submit the forms. It is the operator's
duty to obtain the proper forms. However, it is a circumstance
that in my opinion helped to lead American Asphalt sincerely to
believe it was observing all of MSHA's requirements.
Finally, this is not a situation in which an operator was
attempting to avoid compliance or to conceal its actions. I
accept as fact that prior to April 1, 1993, American Asphalt's
procedures for reporting injuries, involve reports to its
insurance company and to OSHA. Had the company been aware of the

requirements of section 50.20, I have no doubt it would have
submitted Forms 7000-1 as well . Company officials were open and
above board with regard to the records. "Everything's in the
files" said Suda. Tr. 119. I conclude the fact that ·
"everything" did not include MSHA Forms 7000-1 was not the result
of a dereliction from duty so extensive as to be considered "high
negligence." Rather, the company's negligence was moderate.
History of Previous Violations
In the 24-months prior to April 1 , 1993, 14 violations at
the Chase Quarry were assessed and paid . Gov. Exh. 1. Of these
violations five were assessed using the reqular formula and nine
were assessed using the single penalty formula. ~ 30 C.F.R .
SS 100.3, 100.4 . (Of course, the company has no prior history of
violations of the Part 50 requlations there having been no prior
audit for Part 50 compliance.) These violations occurred over
six inspection days. I do not find this to be a history of
previous violations warranting an increase in the penalties
otherwise assessed .

1283

. . . . ·- - -·· .

Size of Business

·The Secretary ' s Proposed Assessment indicates the size of
the company to be 110,926 production tons or hours worked per
year and the size of the Chase Quarry to be 38,722 produ~tion
tons or hours worked per year . Gov. Exh 2. These fiqures were
not disputed, and I find American Asphalt to be a small to medium
size operator. See 30 C.F.R. S l00.3(b).
· Ability To Continue In Business
The burden is on the operator to establish that the amount
of any penalty assessed will affect its ability to continue in
business. American Asphalt offered no proof in this regard, and
I find any penalties assessed will not adversely impact the
company.
Good Faith Abatement
The violations were abated prior to the time set by the
inspector. The company exhibited good faith in achieving rapid
compliance after notification of the violations.
CIVIL PENALTIES
The Secretary proposes a civil penalty of $300 for each
violation, an amount I find excessive. (The largest amount
assessed and paid for a violation in the 24-months prior to
April 1, 1993 was $178. Gov . Exh . 1.) The Secretary argues that
"any reduction in the penalties proposed • • • will necessarily
send the wrong message." Sec . Br . 13. I do not agree . American
Asphalt does not strike me as an operator driven to compliance by
the threat of monetary sanctions. All previous assessments have
been modest and it has an active and ongoing safety program. I
believe, as the company states, that the company recognizes it
has "a firm responsibility to prevent injuries to employees," and
I was impressed by Koprowski's description of· the company's
efforts to meet this responsibility. Amer. Asph. Exh. 1 at 6;
Tr. 98-99 In my view the assessment of historically high
penalties for unintentional violations would be more likely to
foster resentment than compliance, especially when it seems clear
the company has a commitment to Part 50 compliance now that it
understands its responsibilities. For the foregoing reasons I
conclude that a civil penalty of $50 is appropriate for each
violation.
In mak~ng the assessments I note however that the hearing
revealed areas wherein the company needs to improve awareness of
its obligations under the Act. Certainly, someone in authority
at the Chase Quarry should have a copy of the fEH and a working
knowledge ·of its contents. Further, while one cannot expect
Koprowski to know every jot and tittle of the regulations that

1284

apply to metal a-n d ·non-metal mines, he, or someone in an
equivalent position at the facility, should have a thorough
overall familiarity with what the regulations require .
ORDER
The Secretary is ORDERED to modify Citation Nos. 4083556,
4083557, 4083558, 4083559, 4083560, 4084661, 4084662 and 4084663
by deleting the -findings of "high negligence" and by including a
finding of "moderate negligence". As modified, the citations_ are
AFFIRMED .
American Asphalt is ORDERED to pay to MSHA within 30 days of
the date of this decision c i vil penalties of $50 each for the
violations of section 50.20 set forth in Citation Nos. 4083556,
4083557, 4083558, 4083559, 4083560, 4084661, 4084662 and A084663
and upon receipt of payment this matter is DISMISSED.

~~E~~
David F. Barbour
Administrative Law Judge

Distribution :
Anthony G. O'Malley, Jr. , Esq., Office of the Solicitor,
U.S. Department of Labor, · 3535 Market Street, Room 14480,
Philadelphia, PA 19104 (Certified Mail)
Mr. Bernard c. Banks, Jr., Executive Vice President, American
Asphalt Paving Company, 500 Chase Road, Shavertown, PA 18708
{Certified Mail)

/fb

1285

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

_JUN 2 2 1994
CONSOLIDATION COAL COMPANY,
Contestant

.. CONTEST PROCEEDINGS
Docket No. WEVA 94-157-R
Citation 3305270; 12/28/93

v.
SECRETARY OF LABOR, Mine
Safety and Health
Administration, (MSHA),
Respondent

Humphrey No. 7 46-01453
Docket No. WEVA 94-158-R
Citation 3305893; 12/29/93
Docket No. WEVA 94-159-R
Order No. 3305392; 12/30/93
Loveridge No. 22

46-01433

DECISION

Appearances:

Elizabeth s. Chamberlain, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania for the
Contestant;
Caryl L. Casden, Esq., Office of the Solicitor,
U. S . Department of Labor, Arlington, Virginia for
the Respondent.

Before:

Judge Feldman

This consolidated proceeding concerns Not1ces of Contest
filed on January 18, 1994, by the Consolidation Coal Company
(the contestant) pursuant to Section 105 (d)· of the Federal Mine
Safety and Health Act of 1977 (the Act), 30 u.s.c. § 815(d),
challenging two 104(d) (1) citations and a 104(d) (1) order issued
at the above captioned facilities on December 28 through
December 30, 1993. The Notices of Contest were accompanied by
the contestant's Motion for Expedited Hearing. The contestant's
motion was opposed by the Secretary on January 25, 1994. The
Motion for Expedited Hearing was denied on February 14, 1994.
Order, 16 FM~HRC 495. These matters were subsequently called for
hearing on March 30, and March 31, 1994, in Morgantown, West
Virginia. The contestant has stipulated that it is a mine
operator subject to the jurisdiction of the Act. (Tr. 11-12).
The parties' posthearing proposed findings and conclusions are of
record.

1286

The 104·id) -(1) -citations and order concern an alleged unsafe
condition in primary and secondary escapeways in violation of the
mandatory safety standard in Section 75.380(d), 30 C.F.R. §
78.380(d), as well as alleged accumulations of combustible
materials prohibited by Section 75.400, 30 C.F.R. § 75.400. The
issues for resolution are whether the cited violations in fact
occurred, · and, if so, whether they were properly designated as
significant and substantial and attributable to the contestant's
unwarrantable f~ilure.
The criteria for a Significant and Substantial Violation

The Secretary has the burden of proving that a particular
violation is significant and substantial in nature. A violation
is considered significant and substantial if"··· there exists a
reasonable likelihood that the hazard contributed to [by the
violation] will result in an injury or illness of a reasonably
serious nature." Cement Division, National Gypsum Co., 3 FMSHRC
822, 825 (April 1981). The Commission enume~~ted the elements
that must be established for the Secretary to prevail on the
significant and substantial issue in Mathies Coal Company,
6 FMSHRC 1 (January 1994). The Commission stated:
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:
(l)the underlying violation of a mandatory safety
standard; (2)a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the
violation; (3)a reasonable likelihood that the hazard
contributed to will result in an injury; and (4)a
reasonable likelihood that the injury in question will
be of a reasonably serious nature. 6 FMSHRC at 3-4.
With respect to the third element in Mathies, the Secretary
is not required to present evidence that the hazard will actually
occur. Rather, the Secretary is required to establish, by a
preponderance of the evidence, that there is a reasonable
likelihood that the violation will contribute to the occurrence
of an injury causing event. Youghiogheny & Ohio Coal Company,
9 FMSHRC 673, 678 (April 1987). The ·likelihood of this event
must be evaluated in the context of continued normal mining
operations. Halfway. Inc., 8 FMSHRC 8, 12 (January 1986).
Finally, the question of whether a violation is properly
designated as significant and substantial must be based on the
particular facts surrounding the violation. Texasgulf, Inc.,
10 FMSHRC 498, 501 (April 1988).

1287

The Cri teri&-..for. an· unwarrantable Failure Finding

Unwarrantable failure is "aggravated conduct, constituting
more than ordinary negligence, by a mine operator in rela~ion to
a violation of the Act." Emery Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, supra;
Secretary of Labor v. Rushton Mining company, 10 FMSHRC 249
(March 1988) . In distinguishing aggravated conduct from ordinary
negligence, the -Commission stated in Youghiogheny & Ohio,
9 FMSHRC at 2010:
We stated that whereas (ordinary] negligence is conduct
that is "inadvertent," "thoughtless," or "inattentive,"
unwarrantable conduct is conduct that is described as
"not justifiable" or "inexcusable." Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more than ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement .s cheme.
Docket No. Weva 94-157-R1
104(d)(l) Citation No. 3305270

Section 75.380, the cited mandatory safety standard in this
instance, requires at least two separate and distinct travelable
passageways to be designated as escapeways. 30 C. F.R.
§ 75.380(a).
The escapeway ventilated with intake air must be
designated as the primary escapeway. 30 C.F.R. § 75.380(f) (1).
An escapeway that is separated from the primary escapeway must be
designated as an alternative (secondary) escapeway. 30 C.F.R.
§75.380(h).
There are four entries in the contestant's headgate in its
13 East longwall section. The No. 1 entry (left-most entry) is a
return entry. The No. 2 intake entry is the designated primary
escapeway . The No . 3 track entry is the designated secondary
escapeway. Entry No. 4 (right-most entry) is the belt entry.
(Joint ex. 2) .
on December 28, 1993, Mine Safety and Health Administration
(MSHA} Inspector William Ponceroff issued Citation No. 3305270
for an alleged violation of Section 75.380(d) as a result of a
broken waterline , four inches in diameter, which resulted in
flooding of all four entries in the headgate section. The
citation specified that the water level was knee-deep in the
1

There are two volumes of testimony transcribed in these
consolidated proceedings. All references to transcript pages in
Docket No. WEVA 94-157-R relate to the transcript dated March 31,
1994 .

1 288

No. 2 primacy .. intake -a-nd No. 3 secondary track escapeway entries.
The citation noted that coal was being mined while this condition
existed. The citation essentially quoted the language in Section
75.380{d) that each escapeway shall be "maintained in a safe
condition to always insure passage of anyone, including disabled
persons (emphasis added)." Although initially issued as a 104{a)
citation, Ponceroff modified it to a 104{d) citation when he
learned the midnight shift was sent to the face beginning at
midnight December 28, 1993, despite the flooded condition of the
escapeways. .
·

Findings of Pact
On the afternoon shift of December 27, 1993, between the
hours of 4:00 p.m. and 8:30 p.m., a four-inch waterline burst in
the No. 4 entry of the contestant's 13 East longwall headgate
section at its Humphrey No. 7 Mine. (Tr. 395). The waterline was
repaired that afternoon but ruptured again at approximately
11 : 3 o p • m• (Tr . 3 91) .
Kathy Slifko, a belt shoveler on the midnight shift,
testified that she arrived late at the mine site at approximately
11:30 p.m. on December 27. She was sent underground to join the
midnight crew at approximately 12:01 a.m. on December 28.
{Tr. 316). Slifko was transported in a mantrip to the mouth of
the 13 East section. She then entered the No. 3 track entry and
walked for a distance of approximately five blocks until she
could no longer travel because the entry was blocked with water.
{Tr. 317). Slifko then proceeded to the No. 4 belt entry where
she met foreman Frank Rose.
{Tr. 317). Rose informed Slifko
that the midnight crew had already gone to the face. Rose stated
that several of the crew had walked over to the No. 2 intake
entry to determine if it was passable. However, Rose indicated
these crew members returned to the belt entry and traversed over
the water by crawling over the belt.
(Tr. 318).
Slifko testified that she checked all of the entries in an
effort to determine the best way to proceed to her work site. At
the No. 2 primary escapeway intake entry, she walked to the edge
of the water and checked the ribs. She testified that there is
sloughage piled on the ground against the ribs. However, no
sloughage was visible. She concluded the water was at least one
foot in depth because the water obscured the sloughage.
{Tr. 319-320). The elevation of the headgate entries is pitched
downward from the No. 4 belt entry towards the adjacent No. 3
and No. 2 entries. This resulted in the flow of water from the
broken waterline in the No. 4 belt entry through the stoppings
into the No. 3 and No. 2 entries.
(Tr. 190, 211-214).
Consequently, while standing at the edge of the water in the
No. 2 intake entry, Slifko heard and observed water pouring
through the stoppings from the track entry into the intake entry.

1289

(Tr. 319). ~l~fko - described the intake entry as dark and the
water therein as murky. (Tr. 320).
At approximately 1:00 a.m., Slifko returned to the belt
entry where she again spoke with Rose who was then wearing hip
boots and standing in water up to his thighs. (Tr. 322-323).
Slifko told Rose that the water level prevented her from
traversing the intake entry. (Tr. 322). Rose informed Slifko
that Larry Herrington, the crew foreman, had crawled up the belt
with his crew. ' (Tr. 322). Slifko then crawled over the belt to
avoid the water below the beltline and proceeded to her work
station.
(Tr. 325).
The waterline was repaired on the midnight shift between
(Tr. 391). At that time, a 7~ horsepower
Thromore pump and a 3% horsepower Altman standup pump wer,e
installed to remove the water accumulation in the headgate
section. {Tr. 373-374). Inspector Ponceroff testified that
these pumps were inadequate given the magnitude of the flooding.
At approximately 4:00 a.m. on the midnight shift (December 28),
the contestant began to mine coal even though the accumulations
of water remained in the escapeways. (Tr. 325).
1:30 and 2:00 a.m.

On the morning of December 28, at the end of her shift,
Slifko was advised to exit the mine through the belt entry with
Tim Shaffer (Tr. 326). When they reached the water Ike Coombs,
the assistant shift foreman, locked the belt and told Slifko and
Shaffer to crawl on the belt to avoid the water below. They
proceeded to crawl over the belt which was loaded with
approximately five to six inches of coal. (Tr. 326-328). No
escapeway route other than the No. 4 belt entry was suggested to
Slifko either at the start or the end of her shift. (Tr. 329).
MSHA Inspectors Ponceroff and Thomas May arrived at the
contestant's Humphrey No. 7 Mine site at approximately 7:30 a.m.
on December 28. After holding an opening conference with mine
management and reviewing the preshift examinat1on books, the
inspectors proceeded underground. {Tr. 183, 291). After the
inspectors reached the bottom, Brian Whitt, the company safety
escort, asked them if they would return to the surface to speak
with the superintendent.
(Tr. 183, 291). When the inspectors
refused to return to the surface, Whitt spoke to the
superintendent by ,phone. {Tr. 183). Whitt then asked the
inspectors whether mining was permissible with knee-deep water in
the escapeway.
(Tr. 183, 291, 310). The inspectors informed
Whitt that the company could not mine with knee-high deep water
in the escapeway.
The inspectors then traveled through the No. 3 track entry
to the 13 East longwall section. At the No. 7 or No. 8 block,
they observed water from rib to rib for a distance of
approximately two hundred feet.
(Tr. 190, 292). No sloughage

1290

was visible.-:.... (-T r·. -191). May waded into the water. He backed
out when the water was getting deeper to the point where it was
approaching the top of his boots.
(Tr. 292). The inspectors
observed a very small pump that had been installed improperly in
the track entry. (Tr. 190).
The inspectors entered the No. 2 intake escapeway, where
they encountered the same conditions they had observed in the
track entry.
(Tr. 191, 292). Ponceroff stepped into the water
in the intake escapeway. He retreated when the water was
approaching the top of his boots because the slope of the intake
entry was downhill and the water was ·getting deeper. (Tr. 191).
The height of Ponceroff 's boots from heel to the top is
approximately 12\ inches (Tr. 192).
The inspectors found similar flooding in the No. 1 ~eturn
and No. 4 belt entries . . (Tr. 193-194). A small sump pump had
been installed in the belt entry. The inspectors crawled up the
belt entry measuring the water as they went ~long.
(Tr. 194).
The water in the center of the entry was 19 . inches deep and water
along the side of the entry was between 23 inches and 24 inches
deep.
(Tr. 194). As they crawled on the beltline past the
stoppings, they could see the waterline had dropped between eight
and ten inches.
(Tr. 194). It took the inspectors approximately
fifteen minutes to crawl through the flooded area, a distance of
approximately two hundred feet.
(Tr. 195).
There were tripping and stumbling hazards on the mine floor
in the intake and track entries. In the track entry, the track
itself was covered with water.
(Tr. 199). After the water was
finally removed, May observed that the mine floor in the intake
escapeway had cracks and openings in it and that it was very
uneven. (Tr. 427). He also observed sloughage on the floor along
the sides of the entry which would have made it difficult to walk
safely.
(Tr. 427). A 10 horsepower Flyte pump was ultimately
set up on the morning of December 28, 1993.
(Tr. 373-374).
Ponceroff testified that this pump was powerfu~ enough to
effectively remove the flood water.
The contestant called John Demidovich, shearer operator on
the 13 East longwall section, Richard Krynicki, assistant
superintendent, and Brian Whitt, safety escort. These
individuals approximated the depth of the water in the intake
escapeway to be approximately ten to twelve inches.
(Tr. 356,
358, 361, 373, 378-380, 396, 415-416). Demidovich testified
that, although the water in the intake escapeway was two inches
from the top of his 12 to 14 inch rubber boots, he did not notice
any slipping · or tripping hazards or anything that was atypical
that would have prevented a disabled person from being carried
through the water.
(Tr . 356-358, 361). In this regard, Larry
Herrington, longwall foreman on the 13 East longwall section on
the midnight shift in question, testified that his crew examined

1291

the water in:_ the ·track ·and intake escapeways and did not feel
that the water presented a hazard. (Tr. 363-366).
Although the longwall crew entered and exited through the
headgate belt entry, Demidovich testified that the crew was
instructed to exit through the tailgate entries if necessary.
(Tr. 358-360).
Herrington also testified that the tailgate
entries could be used as escapeways. (Tr. 366-368).
Pact of Occurrence

In Consolidation Coal Company, 15 FMSHRC 1555, 1557
(August 1993) the Commission, citing the legislative history of
the Federal Coal Mine Health and Safety Act of 1969, noted
Congress' recognition of the importance of maintaining separate
escapeways in a "travelable" and "safe condition." Consistent
with this legislative interest, the mandatory safety standard in
Section 75.380{d) requires that each escapeway must be maintained
in a safe condition to always insure passage of anyone, including
disabled persons. The Commission has construed this mandatory
standard to require the functional test of "passability." See
Utah Power and Light Company, 11 FMSHRC 1926, 1930 {October
1989) .
Citing Utah Power, the contestant asserts the inspectors'
testimony regarding the nature and extent of the flooding does

not establish the escapeways were not "passable" at midnight on
December 28, 1993, because the inspectors did not observe the
conditions in the escapeway until approximately 8:00 a.m. the
following morning. However, the uncontroverted testimony is that
the waterline was repaired between 1:30 a.m. and 2:00 a.m. on
December 28. During the interim period between the 2:00 a.m.
waterline repair and the 8:00 a.m. inspection, the 7~ Thromore
pump and the 3~ Altman standup pump were being utilized to clear
the entries of floodwater. Therefore, the extensive flooding
observed by inspectors Ponceroff and May at 8:00 a.m. could only
understate the magnitude of the flooding prior -to the remedial
pumping.
Significantly, the testimony reflects mine personnel elected
to use the beltline in the No. 4 entry rather than the No. 2
primary escapeway or the No. 3 secondary escapeway to avoid the
significant accumulations of water. Moreover, it is clear that
the condition of these escapeways, conceded by the contestant to
be at least inundated with eleven inches of water, would preclude
the rapid and safe evacuation of miners under exigent smoke
contaminated circumstances. The condition of these escapeways
would also preclude the safe removal of a disabled person,
particularly an in.d ividual who required to be transported on a
stretcher. It is clear, therefore, that the condition of the
primary and secondary escapeways did not satisfy the passability

1292

test in Utah-·· P0wer;- ·- 'Thus, the subject escapeways were not
maintained in the requisite safe condition as contemplated by
Section 75 . 380(d).
siqnif icant and Substantial
Section 75.380 requires the designation of primary and
secondary escapeways. These escapeways are designated as such
because they are determined to be the most effective means of
evacuation. Under the traditional significant and substantial
test set forth by the Commission in Mathies, it is apparent that
there is a reasonable likelihood that the hazard contributed to
by the cited violation, i.e., inhibiting or preventing
evac uation, will result in injuries of a reasonably serious
nature when viewed in the context of continued normal mining
operations and the constant danger of fire or explosion •..
Notwithstanding emergency conditions, the routine traversing of
escapeways in such hazardous condition creates the reasonable
likelihood that an individual could sustain serious injuries as a
result of slipping or falling . see Eagle ·Nest, Incorporated,
14 FMSHRC 1119 (July 1992). In addition, it is reasonably likely
that disabled individuals requiring rapid evacuation,
particularly those in need of transport by stretcher, could be
adversely affected by the flooded condition of the escapeways.
Although it is clear that the traditional Mathies test is
satisfied, I noted in Consolidation Coal Company, 15 FMSHRC 505,
510, (March 10, 1993), that violations of mandatory safety
standards that e xpose miners to fundamental hazards are
significant and substantial. For example, in Consolidation Coal
Company, I concluded that an inadequate length. of firehose
resulting in the inability to fight a fire results in a
fundamental hazard which constitutes a significant and
substantial violation . So too, the failure to provide
unobstructed primary and secondary escapeways deprives mine
personnel of the most effective means of evacuation. To
characterize the creation of this fundamental -hazard as anything
other than a significant and substantial violation would impede
the Mine Act's statutory role in minimizing the potential for
accidents that could cause serious injury or death.
In the alternative, the contestant asserts that even if the
primary and secondary escapeways were not passable, the tailgate
entries provided an efficient alternative means of escape. I
find this argument unpersuasive. The purpose of designating
primary and secondary escapeways is to identify the safest and
most expeditious means of escape. In this regard, the primary
escapeway must be an intake escapeway to prevent escaping miners
from exposure to contaminated air . Consequently, alternative
means to primary routes of escape are not significant mitigating
factors as they are, by definition, less desirable than the

1293

primary escap.ew5i-y..2.-- .J:.n. fact, as a belt shoveler in the No. 4
headgate belt entry, Slifko would lose valuable time if she were
required to traverse up the headgate entry and across the
longwall face in order to use the tailgate as a means of
evacuation . Consequently, I conclude the violation cited in
Citation No . 3305270 was properly designated as significant and
substantial.
unwarrantable Failure

As noted above, determining whether the contestant's actions
manifest an unwarrantable failure requires a qualitative analysis
of the degree of negligence to ascertain if it is properly
characterized as aggravated conduct. There is a positive
correlation between the degree of negligence attributable to a
mine operator's violative conduct and the foreseeability .and
degree of the ·risk caused to mine personnel by the hazard
contributed to by the violation. As the eminent jurist
Benjamin Cardozo stated in his landmark decision in Palsgraf v.
Long Island R.R., 248 N.Y. 339 (1928):
We are told that one who drives at reckless speed
through a crowded city street is guilty of a negligent
act and , therefore, of a wrongful one irrespective of
the consequences . Negligent the act is, and wrongful
in the sense that it is unsocial, but wrongful and
unsocial in relation to other travelers, only because
the eye of vigilance perceives the risk of damage. If
the same act were to be committed on a speedway or race
course, it would lose its wrongful quality . The risk
reasonably to be perceived defines the duty to be
obeyed, and risk imports relation; it is risk to
another or others within the range of apprehension
(emphasis added).
Thus, in assessing the degree of negligence, it is important
to consider whether the operator was aware of the hazard
contributed to by the violative condition, and, if so, whether
the operator took any action to minimize the risks associated
with the hazard. In this case, the operator was aware that all
four entries were inundated with water and that these entries
were escapeways. Despite the flooded conditions, the operator
proceeded to mine during the midnight shift. The obvious
impropriety of such action is demonstrated by the
superintendent's futile attempt to avoid culpability by seeking
the inspectors' permission to continue mining in the face of
knee-deep water in the escapeways. Such conduct constitutes a
2 Webster's

New Collegiate Dictionary, ( 1981 edition)
defines "primary" as "l: something that stands first in rank,
importance, or value: FUNDAMENTAL ... "

1 294

conscious dis-regard- o·f ·the :r;isks associated with obstructed
escapeways and provides an adequate basis for concluding that the
cited violation is attributable to the operator's unwarrantable
failure .
Accordingly, violation of Section 75.380(d) cited in
104(d) Citation No . 3305270 was properly characterized as
significant and substantial in nature and directly attributable
to the contestants• unwarrantable failure. Consequently, the
contest of Citation No. 3305270 IS DENIED .
Docket No. WEVA 94-158-R3
Citation No. 3305893

On December 29, 1993, MSHA inspector John Sylvester issued
Citation No. 3305893 at the contestant's Loveridge No. 24. Mine.
The citation was issued as a Section 104(d) citation for an
alleged violation of the mandatory safety standard set forth in
Section 75.400 of the regulations, C.F.R . § 75.400. This
mandatory standard provides:
Coal dust, including float coal dust
deposited on rock-dusted surfaces,
loose coal, and other combustible materials,
shall be cleaned up and shall not be
permitted to accumulate on in active workings
or on electric equipment therein.
MSHA inspectors John Sylvester and Chris Weaver inspected
the 8 North belt at the Loveridge No. 22 Mine. Upon their
arrival at the belt drive, they noticed accumulations of float
coal dust.
(Tr. 27, 150). The accumulations were observed
around the belt drive, on the framework of the drive, on the
screen of the roof, and on the waterline overhead.
(Tr. 27,
159) . Float dust coal consists of particles that are finer than
fine coal dust. Consequently, float coal dust is more easily put
into suspension and is therefore more hazardous. (Tr. 315). The
inspectors wer e certain that the material they observed was float
coal dust because the particles were so fine that they were
difficult to discern. (Tr. 314).
The belt structure on the 8 North beltline is the elevated
metal frame that keeps the belt in place.
(Tr. 28). The height
of the structure along the beltline is mainly eye-level.
However, the height ranges from three to eight feet above the
mine floor .
(Tr. 78, 196). The inspectors walked the entire
3

There are two volumes of testimony transcribed in these
consolidated proceedings. All references to transcript pages in
Docket No . WEVA 94-158-R relate to the transcript dated March 30,
1994.

1295

length of the belt-,· which is approximately 1, 2 00 to 1, 500 feet,
and found the entire belt structure was covered with float coal
dust.
(Tr. 29). Sylvester ran his hand through the float coal
dust at various locations along the beltline and determined that
most of the deposit was dry.
(Tr. 31).
At the drive, Sylvester noted only a trickle of water being
supplied to the bottom belt, with no sprays running on the top
belt, despite the fact that it was winter and conditions in the
mine are drier in the winter season. (Tr. 32). Sylvester
testified operators generally spray large quantities of water on
the top belt in order to control dust. (Tr. 32-33). Sylvester
testified that Mine Superintendent Robert Omear told Sylvester
that he had ordered the sprays removed several weeks prior to the
inspection.
(Tr. 33). Omear testified that he felt that top
belt water sprays were not required to control float dust and
that the top sprays were removed from the 8 North beltline in
order to remedy a serious slipping and tripping hazard. Omear
testified that the top sprays were replaced by center sprays.
(Tr. 81, 256, 260). Sylvester stated that·· a . foreman informed him
the dust on the 8 North belt had worsened since the sprays were
removed.
(Tr. 34).
Inspector Weaver, who accompanied Sylvester, estimated that
approximately one third of the belt structure that he examined
had rock dust underneath the float coal dust. Weaver stated that
the float dust coal had accumulated to such an extent he could
not see the bottom layer of rock dust. The remaining length of
the structure had float coal dust accumulations directly on top
of the structure.
(Tr. 154).
Sylvester and Weaver estimated
the depth of the float coal dust along the length of the
structure to be from a trace to approximately one-half inch in
depth.
(Tr. 78, 315). Mary Conaway, a miner who worked on this
belt frequently, confirmed that during the inspection, float coal
dust, gray to black in color, covered the belt structure for
almost the entire beltline and that this condition had existed
for several days.
(Tr. 192, 193.)
Upon arriving at the tail roller at the 8 North beltline,
Sylvester smelled "something ..• burning."
(Tr. 35). As he walked
from the left side of the belt around the tail roller to the
right side, Sylvester observed sparks coming from the tail roller
and he saw "hot cherry red coals" on the ground around the tail
roller itself.
(Tr. 35) . Mary Conaway also observed sparks
flying at the tail roller.
(Tr. 201). Sylvester determined that
the entire tail roller, which was approximately 12 to 15 inches
in diameter, was hot. (Tr. 36). Sylvester concluded that the set
screws in the tail roller had backed off and were causing the
tail roller to shift to one side so that it was rubbing against
the main frame of the tailpiece, creating friction.
(Tr. 37).
The contestant's escort, David Olson, conceded that the tail
roller was malfunctioning.
(Tr. 215-218). Sylvester informed

1296

Olson that he was· issuing a 104 (d) (1) citation for a significant
and substantial violation as a result of the impermissible
combustible accumulation in the presence of a hot roller.
(Tr. 4 7 , 2 3 3 } •
Fact of Occurrence

The contestant challenges the cited violation of the
mandatory safety standard contained in Section 75.400 which
obliges an operator not to permit float coal dust, as a
combustible material, . to accumulate in active workings . A
threshold issue is whether the float coal dust observed by the
inspectors, described as from a trace to one half inch in depth,
constitutes an accumulation under the cited safety standard. In
Pittsburg & Midway Coal Company, 8 FMSHRC 4, 5 (January 1986),
the Commission concluded coal dust accumulations % inch in depth
in close proximity to an ignition source constitute "dangerous"
accumulations. Consequently, it is clear that the cited float
coal dust located near a hot tail roller was of sufficient
magnitude to be considered combustible accumulations as
contemplated by Section 75.400. 4
As coal dust is a natural consequence of the extraction
process, the next issue for determination is whether the
contestant permitted these combustible accumulations to occur.
In Utah Power and Light v. Secretary of Labor, 951 F.2d 292, 295
(10th Circuit 1991), the Court of Appeals, applying the mandatory
safety standard in Section 75.400, stated that coal dust
accumulations must be " ••. cleaned with reasonable promptness,
with all convenient speed." Therefore, it is obvious that
Section 75.400 does not contemplate citations for coal dust
accumulations that are generated as a by-product of the
extraction process. It is only the accumulation of coal dust
particles, which inherently require a period of time to develop,
that is prohibited by the mandatory safety standard.
In the instant case, Sylvester opined that it took
approximately three to five shifts for the observed accumulations
to occur.
(Tr. 59). Sylvester's opinion with regard to the
4

Contestant witnesses Earl Kennedy, David Olson and Robert
Omear opined that the area in question was adequately rock dusted
and did not warrant a Section 75.400 citation. In support of
their opinions, the contestant submitted its own laboratory
analysis of the incombustible content of purported relevant dust
samples that it had obtained. (Tr. 212, 259-260, 262, 266-271,
293; Contestant's Exs. 5(a}, S(b}, and 6). To ensure
reliability, samples requiring analysis must be obtained by, and,
remain in the possession of, enforcement personnel. I can
conceive of no alternative enforcement procedure. Therefore, the
contestant's laboratory findings are afforded little weight.

1297

duration of .~1;.h~__ a.c cumulations is supported by the testimony of
Mary Conaway who stated that the accumulations had existed for
days. (Tr. 192-193). Significantly, Superintendent Omear
testified that Conaway is a general inside laborer who "spends
the most time working on [the Number 8) belt." (Tr. 255).
Therefore, the testimony of Conaway, who is admittedly familiar
with the subject beltline, is entitled to great weight.
consequently, the evidence reflects that the contestant permitted
the subject accumulations to occur over a period of at least
several shifts in contravention of the mandatory safety standard
in Section 75.400 .
Although I have concluded that the contestant did not timely
clean up, and thus permitted the accumulations, the evidence also
reflects the contestant failed to take adequate measures to
prevent this combustible accumulation . Superintendent om~ar
admitted that the top sprays were removed from the No. 8
beltline.
(Tr. 81, 256-260). Although Omear testified that the
top sprays were replaced by center sprays, the presence of the
accumulations observed by the MSHA inspectors and confirmed by
Conaway establish that the water spray dust suppression methods
employed by Omear were inadequate . Therefore, the rec ord
evidence provides an adequate basis for concluding that the
contestant's failure to take adequate water suppression measures
to prevent the accumulations also cons titutes a violation of the
mandatory safety standard in Section 75.400 .
Significant and Substantial
In applying the Commission's Mathies criteria for
establishing .a significant and substantial violation it is clear
that the impermissible accumulation of combustible materials
contributes to a discrete safety hazard, i.e. the danger of
combustion . It is also apparent that in the event of combustion,
there was a reasonable likelihood that serious burn or smoke
inhalation injury to mine personnel would occur.
The remaining issue is whether there is a reasonable
likelihood that the hazardous event, namely combustion, could
result as a consequence of the subject violation. Combustion
requires a combustible fuel source in the presence of oxygen that
is exposed to a source of heat constituting a source of ignition.
Float coal dust is a combustible fuel source if it is placed in
suspension . I credit the testimony of Inspector Weaver that
float coal dust, comprised of particles small in size, can be
easily placed in suspension . The suspension characteristics of
float coal dust are particularly important in areas around a tail
roller where dust particles can be easily mobilized. The
presence of float coal dust around a tail roller that is
malfunctioning and creating heat demonstrated by smoke, sparks,
and "hot cherry-red coals," is particularly hazardous in that it
provides all the elements of combustion . It is clear, therefore,

1 29 8

that the cir:cumstanGes -in this case satisfy the Commission's
significant and substantial criteria in Mathies. Accordingly,
the cited violation of Section 75.400 was properly designated as
significant and substantial.
unwarrantable Failure
A violation is properly attributable to an operator's
unwarrantable failure if the circumstances surrounding the
violation reflect that the operator's conduct was "not
justifiable or inexcusable. Such conduct is properly
characterized as aggravated. See Youghiogheny and Ohio, at
9 FMSHRC 2010. In mitigation, the contestant argues, in essence,
that it did not know about the malfunctioning tail roller prior
to Sylvester's inspection. As noted by Justice Cardozo in
Palsgraf, the degree of negligence must be viewed in the context
of the risk to be reasonably foreseen by the conduct in question.
A mine operator must ensure that a tail roller, a source of coal
dust suspension, is properly aligned to prevent friction and the
resultant heat that could precipitate an explosion. Thus, the
responsibility lies with the operator to discover and promptly
remedy such a situation. The contestant's failure to do so
until after Inspector Sylvester discovered the condition
constitutes unjustifiable and inexcusable conduct on the part of
the contestant rather than mitigating circumstances. Thus, the
violation in question was properly attributable to the
contestant's unwarrantable failure. Accordingly, the
contestant's contest of 104(d) (1) Citation No. 3305893 IS DENIED.
Docket No. WEVA 94-159-R5
104(d) (1) order No. 3305392
On December 30, 1993, MSHA Inspector Frank Bowers issued
Order No. 3305392 at the contestant's Loveridge No. 22 Mine. The
order was issued for an alleged violation of the mandatory safety
standard concerning the prevention of combustible accumulations
as set forth in Section 75.400.
Order No. 3305392 was issued as result of an inspection by
Inspector Bowers and Inspector Joe Belacastro. Prior to
proceeding underground to inspect the Loveridge 22 Mine, Bowers
and Belacastro examined the preshift books.
(Tr. 15). Inspector
Bowers noticed that from December 22, 1993, the preshift
examiners had noted that additional rock dust was needed in the
No. 1 entry of the 1 Right 1 south section.
(Tr. 17).
5

There are two volumes of testimony transcribed in these
consolidated proceedings. All references to transcript pages in
Docket No. WEVA 94-159-R relate to the transcript dated March 31,
1994.

1299

Upon a~.r..i~:i.ng _at - the No. 1 entry of the 1 Right 1 South
section, the inspecto.r s observed accumulations of float coal dust
on the roof and ribs for a distance of approximately
180 feet outby the last open crosscut .
(Tr. 12-13, 96).
As a consequence, Inspector Bowers issued Order No . 3305392 for
failure to prevent the accumulation of float coal dust in this
area.
A trickle duster is a fan which holds approximately 100 to
150 lbs. of rock dust. It propels the rock dust a distance of
approximately 400 feet inby in order to coat the roof and ribs.
(Tr. 56-57, 59, 133-144). The purpose of the trickle duster is
to contain float dust by mixing with rock dust to create an
incombustible mixture.
(Tr. 57-58). In addition to the trickle
duster , the loading machine and hand dusting are additional
sources of rock dust. The most effective method of rock . ~usting
is utilization of a bulk duster. (Tr. 126). section Foreman
Ralph Cowger testified that it is standard operating procedure to
operate a trickle duster at all times during mining operations.
(Tr . 116) .
Although Bowers characterized the subject accumulations as
black in color, Bowers also testified that there was evidence of
rock dusting efforts in the cited area . In fact, Bowers
described the mine floor as gray in color.
(Tr. 12-14, 68) . on
a scale of 1 to 10, one being perfect rock dusting and ten being
no rock dusting, Bowers testified that he would rate the area
between 5 and 7.
(Tr . 76-77). Bowers characterized the rock
dusting job done by the contestant in outby areas of the section
as "pretty good" and "beautiful." (Tr. 30, 80).
Fact of Occurre.n ce

The mandatory safety standard in Section 75.400, in
pertinent part, prohibits the accumulation of float coal dust on
top of rock dusted surfaces . The operator can escape liability
under this standard if it complies with the rock dusting
provisions of Section 75.402, 30 C.F.R. § 75.402, which requires
rock dusting within 40 feet of all working faces. The adequacy
of rock dusting is determined by the provisions of Section
75.403, 30 C.F.R. § 75 . 403, which sets forth the requisite
content percentages of coal dust and rock dust materials .
In determining whether the Secretary has prevailed in
establishing the fact of occurrence of this alleged violation of
Section 75.400, it is helpful to compare this case to the facts
in Docket No . WEVA 94-158-R discussed above. In that docket, the
contestant was charged with permitting float coal dust
accumulations on top of rock dusted surfaces and on the structure
of its beltline. Here, the evidence reflects that the area 180
feet inby the last open crosscut was repeatedly rock dusted. The
sole issue is the adequacy of the rock dusting. In this regard,

1300

both Inspect-or .Bowers and Mine Safety Escort Franklin c. Ash
testified that the accumulations looked darker when viewed from
the outby side facing into the air flow than from the inby
direction.
(Tr. 45, 149-150). This was attributable to the
particle patterns that form as a result of the mixture of rock
dust and float coal dust that is influenced by the inby direction
of the air flow.
Bowers testified that he issued the order on December 30,
1993, because the condition had been reported in the preshift
examination book on December 22, 1993, but had not been
corrected.
(Tr. 35-36). However, Bowers conceded that it was
possible that remedial action might have occurred over the period
from December 22 through December 30, 1993, but that float coal
dust continued to accumulate as a result of continued mining
operations.
(Tr. 52).
In fact, the preshift examination book, relied upon by
Bowers as evidence that the contestant had ignored the condition,
documents the contestant had made several efforts to rock dust
the area . For example, the day shift on December 29 reflects
that the "last 180 feet was dusted by hand although additional
dusting was needed." The notation on the morning of the issuance
of the citation on December 30, 1993, reflects that the last
180 feet of the return was "dusted with loader - needs more."
See Joint Ex. 1, pps. 35, 37 and 39.
Thus, the evidence establishes the area in question had been
repeatedly rock dusted with the trickle duster, hand dusted and
dusted with the loader. Given the entries in the preshift
examination book, as well as the description of the variation in
color of the accumulations depending upon the inby or outby
orientation of the observer, it is apparent the appropriate issue
should be whether the cited area was adequately rock dusted.
Consequently, the relevant mandatory safety standards are
the rock dusting provisions in Section 75.402 and the
incombustible content requirements set forth in Section 75.403.
Dust samples for the purpose of analyzing the incombustible
content of the accumulations in question were not obtained as the
contestant was not charged with a violation of these mandatory
standards. Therefore, the question of whether or not these rock
dusting safety standards were violated is not before me.
Given Bowers' conflicting testimony, the grey color of the
subject accumulations, and pertinent notations in the preshift
examination book concerning relevant rock dusting efforts, the
Secretary has failed to establish by a preponderance of the
evidence that float coal dust was permitted to accumulate on rock
dusted surfaces in violation of Section 75.400. Accordingly,
Order No. 3305392 IS VACATED and the contestant's contest with
respect to this order IS GRANTED.

1301

..-p

••

- -

·- -

ORDER

•

In view of the above, the contests of Citation No. 3305270
in Docket No. WEVA 94-157-R and Citation No. 3305893 in Docket
No. WEVA 94-158-R ARE DENIED. IT IS FURTHER ORDERED that Order
No. 3305392 IS VACATED and the contest of this order in Docket
No. WEVA 94-159-R IS GRANTED.

~

~

Jerold Feldman
Administrative Law Judge

Distribution:
Elizabeth S. Chamberlain, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Caryl L. Casden, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified
Mail)

/11

1302

FEDERAL llDfE SAFETY ARD llEAill.'B RBVDSW COllllISSIOH
OFFI CE OF ADMINISTRATIVE LAW JUD~ES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 2 4 1994
DOUGLAS E. DEROSSETT,
Complainant
v.
MARTIN COUNTY COAL CORP . ,
Respondent

DISCRIMINATION PROCEEDING
Docket No. KENT 94-278-D
MSHA Case No. PIKE CD 93-20
:

Diamond No . l Mine

ORDER OF DISMISSAL

Before :

Judge Melick

On June 8, 1994, Complainant was directed to file a
response to Respondent's Motion to Dismiss dated May 12, 1994,
or be subject to dismissal of his case. No response has been
filed and this case is accordingly dismissed. The hearing
previously scheduled for July 12, 1994, is accordingiy canceled.

L
/

//

;1
\

I ./\v \/ \
•. _/

\ .
'.

.

\

. ' / "·.. :·\. r ,

G~ry Melick
'Jn~ ~
Administr~five Law Ju \je
Distribution:

\.

Douglas E. DeRossett, Box 56 , Allen, KY 41601 ·ccertified Mail)
Charles E. Shivel, Jr., Esq . , Diane M. Carlton, Esq.,
Stoll, Keenon and Park, 210 East Main Street, suite 1000,
Lexington, KY 40507 (Certified Mail)
\ lh

1303

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE. 10th FLOOR
5 20 3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

JUN 2 4 1~9-4
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
CLETIS R. WAMSLEY,
ROBERT A. LEWIS,
JOHN B. TAYLOR,
CLARK D. WILLIAMSON, and
SAMUEL COYLE,
Complainants

v.

MUTUAL MINING, INC . ,
Respondent

DISCRIMINATION PROCEEDINGS

. Docket No. WEVA 93-394-D
... Hope CD 93-01, 93-05
No. WEVA 93-395-D
. Docket
Hope CD·. 9"3-02
..
Docket No. WEVA 93-396-D
:
:

Hope CD 93-04

.. Docket No. WEVA 93-397-D
.. Hope CD 93-07
Docket No. WEVA 93-398-D
.. Hope
CD 93-11
. Mutual Mine I
DECISION

Appearances:

Patrick L. DePace, Esq . , Office of the Solicitor ,
u. s . Department of Labor, Arlington, Virginia for
the Complainants;
W. Jeffrey Scott, Esq., Grayson, Kentucky for the
Respondent.

Before:

Judge Amchan
Overview of the Case

This case arises under section 105(c) of the Federal Mine
Safety and Health Act. Complainants allege that they were laidoff by Respondent on the afternoon of December 21, 1992, in
retaliation for a "safety r un" conducted by the United Mine
Workers safety committee on December 17, and for initiation by
the safety committee of an MSHA inspection that began the morning
of the lay-off. For the reasons set forth below, I find that
complainants have made a prima fac.ie case of retaliatory
discharge which has not been adequately rebutted by Respondent .
I, therefore, conclude that. the lay-off of complainants on
December 21, 1992, violated the Act.
1304

··· · ·- - · · Factual Background
On Thursday, December 17, 1992, United Mine Workers (UMWA)
local safety committeemen Cletis Wamsley and John Taylor, and a
safety representative of the international union conducted an
inspecti'on, or " safety run, " of Respondent's surface mine in
Holden, Logan County, West Virginia (Tr. I: 14, IV: 17). 1 At
the end of their inspection Mr. Wamsley and Mr. Taylor presented
a list of safety-defects to Joe Potter, Respondent's mine clerk
(Tr . IV: 9-lo) : 2 Mr. Potter copied the list and gave it to Mine
Superintendent Allan Roe (Tr. IV : 9-11) . The next day, Friday,
December 18, 1992, the union safety committee, which included
Complainants Wamsley , Taylor, and Robert Lewis, submitted the
same list to the Mine Safety and Health Administration through
UMWA field representative Bill Hall. The committee requested an
inspection of their employer's facility , pursuant to sect.ion
103(g) of the Act (Tr. I: 15-16, III: 65, Exh. G-1) .
On Monday morning , December 21, 1992, b~tween s:oo a . m. and
9:00 a.m., MSHA began it~ inspection of Mutual Mining's worksite
(Tr. I: 59, V: 73). 3 The MSHA inspectors met with Mr. Potter
and Mr . Roe at the beginning of the inspection and gave them a
copy of the section 103(g) complaint filed with MSHA . Either
Mr. Potter, Mr . Roe, or both, commented that the list attached to
the section l03(g) complaint was identical to that presented by
the union safety committee (Tr. I: 18, III: 189). In any event,
both Mr. Potter and Mr. Roe were aware that the lists were
identical (Tr. IV: 11). There is no question that Potter and Roe
realized that the inspection was initiated by the union safety
committee (Tr . I: 140-41, V: 73).
Mr. Roe, the mine superintendent, reports to Astor "Red"
Hatton, Respondent's mine manager. While Mr. Roe is the senior
Mutual Mining official who is on site on a daily basis,
Mr. Hatton, who otherwise works in Sandy Hook, Kentucky, comes to
the Holden, West Virginia worksite two to three times a week (Tr.
I: 227) . On December 21, 1992, Mr . Roe was not expecting
Mr. Hatton at the mine (Tr . V: 73). Hatton arrived at the site

1
The record in the temporary reinstatement proceeding involving Mr . Wams ley
and Mr. Lewis, Dockets WEVA 93-375-D and WEVA 93-376-D, has been incorporated
into the record of this case. There are five paginated volumes of transcript,
8/5/93, 2/1/94, 2/2/94, 2/3 / 94 a.m. , and 2/3/94 p . m.
In this decision the
transcript volumes will be referred to as volumes I through v, starting with the
transcript of August 5, 1993, although they are not numbered that way on their
face .

2Joe
Potter ahould not be confused with Johnny Porter,
president.

Respondent's

3The inspection of Respondent ' s equipment began no later than 9:05 a . m.
(Exh . G-3, Citation No . 4000561 , Tr . I: 84) .

1305

around 11 : 09--a.m:• (Tr. · v: 71-73). It is unclear whether Hatton .
learned of the MSHA inspection when he arrived at the site or
before that (Tr. I: 193, V: 171).
Mr . Hatton and Mr . Roe had some discussions about Mutual
Mining's workforce and then about noon drove to the office of Ron
May, the human resources director of Island creek Coal
Corporation (Tr . I: 174-81, IV: 64, V: 71-78). Respondent mined
the Holden site-pursuant to a contract with Island Creek. Its
employee relations were governed by Island Creek's collective
bargaining agreement with the UMWA. Roe and Hatton sought May's
advice regarding a proposed "realignment" of Mutual Mining's
workforce (Tr. I: 178-179, IV: 56-57, 60-65). This realignment
would have resulted in the shift of some employees from the day
shift to the night shift (Tr. I: 178, IV: 56-57, 60-65). Roe and
Hatton had discussed such a plan with May previously on several
occasions, starting possibly as much as 6 months previously (Tr .
IV: 70-71). They had also discussed such plans on a number of
occasions over a period of several months with · David Vidovich, a
labor relations consultant (Tr. III: 44-46).
May advised Roe and Hatton tha~ they could not realign their
workforce as planned without violating the terms of Island
Creek's collective bargaining agreement with the UMWA (Tr: IV:
61). May also told them that the only way they could shift
employees from the day shift to night shift was to have a lay-off
and a recal ~ (Tr . IV: 62-63). On December 21, 1992, after the
commencement of the MSHA inspection, Roe and Hatton decided to
lay-off 12' of their 24 non-supervisory employees '· They
effectuated the lay-off on the afternoon of December 21 (Tr. I:
20-23, 66) . Among those laid-off were the complainants, three of
whom (Taylor, Wamsley, and Lewis) constituted the membership of
the safety committee which had initiated the inspection that day
(Tr. I: 27, 61-63, Exh. G-2) 5 •

4The inference I draw from this record is that Respondent decided to lay-off
the Complainants after the commencement of the MSHA inspection , but before Roe
and Hatton apoke to Ron Kay.
s There is a great deal of contradictory and confusing. testimony in this
record as to whether Respondent had planned to lay-off anyone prior to
December 21, l9 S2 .
I find that Respondent has not established that it had
decided to lay-o ff anyone, and certainly none of the complainants, until after
the commencement. of the MSHA inspection. In August 1993, Roe testified that part
of the lay-off list was compiled prior to December 21, 1992 (Tr. I: 124-25, 149150). However, in February 1994, he stated that "aa far as diacuaaing the
layoff, it was a realignment, ia what had been diecuaaed, and that probably took
place two to three, or maybe four month• before • • • •cTr. V: 47).
His
teatimony continue•:
Q. Did any diacuaaions take place in the week before the lay-off?
A. Yea, diacuaaion• went continuously for a long time.

Q.

And did those diacuaaions include conaideration of a layoff?

1306

On January - 20,- · 19·93 , Complainant Clark Williamson and Willis
Hill, the two most senior employees laid off except for
Complainant Taylor, were recalled to work (Tr. II: 142, 157).
Other employees were recalled in April 1993, including
Complainants Samuel Coyle and John Taylor (Tr. II: 59-60 , 174) . 6
By August 1993 all 12 employees had been recalled except for
Complainant Wamsley and one other . Both of these miners declined
reinstatement °(Tr. II: 60).

A. If they did, they would have been in a small scale, on a small
scale.

* * *

A. Well, like I said, you know, we had discussed a realignment and
there may have been one or two people got laid off in those
discussions. But the actual lay-off wasn ' t the aame discussion that
we had on a continuous run.
(Tr. V: 47-48)
At the August 1993 temporary reinstatement hearing, Red Hatton testified
as follows :
A. The layoff--I hadn't planned a layoff • • • The layoff, as such,
was not planned the way it came down until I realized that my
real igrmient wasn't goi ng to work .
Q. When was that?
A. The Twenty-First.
(Tr . I: 202-203)
Hatton's February testimony on this point was the following:
A. • • • At the time I went up there (to the worksite on December
21, 1992), it was primarily a realignment with very few people to be
laid off • • • •
(Tr . V: 182)
Given the imprecise nature of the evidence tending to indicate that any
lay-off was planned prior to December 21, 1992, and Ron May• s testimony that when
Roe and Hatton appeared at his office on that date , they initially discussed only
a realignment (Tr. I : 178-79, IV: 56-57, 70-71), ~ conclude that the
preponderance of the evi dence is that no decision to lay-off any employee was
made until December 21, 1992 . other testimony that I have considered on this
point includes that of David Vidovich (Tr. I : 104-17 , III: 46-53), which is
somewhat confusing and incons i stent.
However, Vidov ich ' & testimony that he
advieed Respondent that it had to pay the laid-off employees for December 22,
because the company had not provided 24 hours notice, indicates that no lay-off
decision was made until December 21 (Tr . I : 112-115). Johnny Porter's testimony
regarding discussions of a lay-off prior to December 21, 1992, (Tr. V: 151-.52 ,
162), is so inconsistent with the testimony of Hatton, Roe, May, and Vidovich
that I accord it no weight on this issue.
~aylor filed a grievance over his discharge alleging that Respondent had
violated the collective bargaining agreement in laying him off and retaining a
less aenior employee as a coal loader.
Although the retained employee was
Respondent~& regular coal loader, Mr. Taylor had performed the coal loader job
when the other employee was absent and in past employment . Bia grievance was
sustained (Exh. G-5).

1 307

The Issues
Section lOS(c) (1) of the Federal Mine Safety and Health Act
provides that:
No .person shall discharge or in any manner
discriminate against or cause to be discharged
or cause discrimination against or otherwise
interfere with the exercise of the statutory
rights of any miner • • • because such miner
• • • has filed or made a complaint under or
related to this Act, including a complaint
notifying the operator or the operator's agent
. • • of an alleged danger or safety or health
violation • • • or because such miner • • • has
instituted or caused to be instituted any
proceeding under or related to this Act • • •
or because of the exercise by such miner • • •
of any statutory right afforded ?Y this Act .
The Federal Mine Safety and Health Review Commission has
enunciated the general principles for analyzing discrimination
cases under the Mine Act in Sec . ex rel. Pasula v. Consolidation
Coal co., 2 FMSHRC 2786 {October 1980), rey'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 · {3d
Cir. 1981), and Sec. ex rel. Robinette v. Vnited castle Coal Co.,
3 FMSHRC 803 {April 1981). In these cases, the Commission held
that a complainant establishes a prima facie case of
discrimination by showing 1) that he engaged in protected
activity and 2) that an adverse action was motivated in part by
the protected activity .
The operator may rebut the prima facie case by showing
either that no protected activity occurred, or that the adverse
action was in no part motivated by the protected activity. If
the operator cannot, thus, rebut the prima facie case, it may
still defend itself by proving that it was motivated in part by
the miner's unprotected activities, and that it would have taken
the adverse action for the unprotected activities alone.
Complainants' Protected Activity
In the instant case, there is no controversy regarding the
fact that three of the complainants, Wamsley, Taylor, and Lewis,
engaged in protected activity. Wamsley and Taylor engaged in
such activity when they participated in the safety run of
December 17, 1992. Although Lewis did not actually participate
in this inspection due to illness, he had advised his supervisor
that he planned to do so 24 hours beforehand (Tr. I: 62) .
Additionally, Lewis provided Wamsley and Taylor information about
some equipment with which he was familiar and participated in the
decision to refer the safety committee list to MSHA {Tr. I: 62).
1308

Wamsley and Tay1·o r -arso participated in the union inspection as
well as the request for an inspection by MSHA. Wamsley, as well
as a management representative, accompanied the government
inspectors during the course of the MSHA inspection on December
21, 1992. 7
Neither Mr . Coyle nor Mr . Williamson engaged in protected
activity that is relevant to this case 1 • It is the Secretary's
contention tha~-:they were laid off so that Respondent could layoff Mr . Taylor without obviously violating the seniority
provisions of Mutual Mining's collective bargaining agreement .
If the lay-offs of Coyle and Williamson were motivated by a
desire to retaliate against the union safety committee, their
lack of protected activity creates no impediment to finding a
violation of section lOS(c) of the Act.
While I am aware of no cases on point under the Federal Mine
Safety and Health Act, it is black letter law under the National
Labor Relations Act that proof of an indivi_d µal employee's
protected activity is not necessary to prove a violative
discharge if it is part of a retaliatory lay-off. The relevant
inquiry is the motivation for the single decision to conduct the
layoff. M.S.P. Industries v. N.L.R.B . , 568 F.2d 166, 176
(10th Cir. 1977); Dillingham Marine and Manufacturing Co. v.
N.L.R . B. , 610 F.2d 319, 321 (5th Cir. 1980); N.L.R . B. v. Rich's
Precision Foundry. Inc., 667 F.2d 613, 628 (7th Cir. 1981); Hyatt
Corp. v. N. L . R.B, 939 F.2d 361 , 375 (6th Cir . 1991). This
principle was best stated by Judge Henry Friendly:
A power display in the form of a mass lay-off, where it
is demonstrated that a significant motive and a desired
effect were to "discourage membership in any labor
organization," satisfies the requirements of S 8{a)(3)
to the letter even if some white sheep suffer along
with the black.
Maiestic Molded Products , Inc. v. N. L. R.B ., 33o· F.2d 603, 606
(2d Cir. 1964).

'The management representative, foreman Wayne Thornbury, maintained radio
contact with superintendent Allan Roe, advising him constantly as to which pieces
of equipment were taken out of service due to MSHA citations (Tr I : 97-99).
'coyle was ~ member of the union safety committee until September 1992
(Tr. II : 174) . Williamson apparently made aafety complaints to hi• foreman at
aome unspe_cified time (Tr . II: 132) . However, there is nothing in this record
that leads me to conclude that these activities contributed to the lay-off of
coyle and Williamson on December 21, 1992 . Indeed, Williamson believes he was
discharged so that Respondent could terminate Taylor (Tr . II: 156-57).

1309

Responde~t's · Awareness

of Complainants• Protected Activi ty

Respondent was aware of the safety activity. When MSHA
began its inspection of December 21, it provided company
officials with the list of alleged safety defects prepared by the
union. Allan Roe, the job superintendent for Respondent,
recognized that the list was the same one presented to the
company by the union safety committee a few days earlier. It
was, therefore, -obvious to Respondent that the union safety
committee had initiated the MSHA inspection.
Adverse Action
Each of the complainants suffered an adverse action. All
were discharged on the day of the MSHA inspection, hours after
the company became aware of the section 103(g) complaint._ The
proximate timing of the discnarges creates an inference that the
lay-offs were rela~ed to the protected activities of the union .
safety committee. ponovan v. Stafford Construction Co., 732 F. 2d
954, 960 (D.C. Cir. 1984); Chacon v. Phelps -Dodge Corp., 3 FMSHRC
2508, 2511 (November 1981). Indeed, close timing alone may
suggest that employer animus regarding the protected activity was
a motivating factor for the adverse action. N.L.R.B. v. RainWare. Inc . , 732 F.2d 1349, 1354 (7th Cir. 1984). Thus, the
Secretary has clearly made out a prima facie case that Respondent
violated section lOS(c) in laying-off the complainants on
December 21, 1992.
Evidence of Animus
Another factor contributing to the inference that there is a
relationship between complainants• discharge and their protected
activities is the animus of Respondent . This case is somewhat
unusual in that there is strong evidence of animus towards Cletis
Wamsley and much less evidence of animus towards any of the other
complainants. Respondent's job superintendent Allan Roe readily
admits to a strong aversion towards Mr. Wamsley (Tr. V: 57-58).
The record establishes that this animus may not have originated
with Wamsley•s safety-related activities . Nevertheless, Roe's
belief that Wamsley was unreasonable in his safety-related
demands was a factor in the strong animus towards this
Complainant.

Mr. Wamsley was prominent in the prosecution of an unfair
labor practice charge against Respondent, which alleged that
Mutual Mining had violated the terms of its collective bargaining
agreement in retaining certain employees of the Elm coal Company,
which had previously mined the Holden site. One of these
employees was Complainant Taylor. Respondent argues that its
successful defense to the unfair labor practice charge saved
Mr. Taylor's job, and, thus, indicates that it bears no animus
towards him.
1310

Mr. Roe:.--also · bel:-ieved that Complainant Wamsley purposely
damaged a rock truck (Tr . V: 85). On another occasion, Roe had
Wamsley suspended for leading a work stoppage because his
paycheck bounced (Tr. V: 93-95).

' Nevertheless, some of Roe's hostility towards Wamsley
resulted from differences of opinion over safety matters. For
example, on one occasion they had a heated discussion regarding
the safety of the tires on a rock truck (Tr. V: 92-93). on
another after an October 15, 1992, safety run, the two men cu~sed
each other in front of an MSHA inspector. At an MSHA closing
conference the same month, Roe called Wamsley a liar and referred
to him as a "fat slob . " (Tr. III : 191-93). That Mr. Roe
considered Complainant Wamsley•s safety activities in an
unfavorable l i ght is best evidenced by his explanation of his
refusal to meet with him instead of the president of the union
local in October 1992:
Every time me and Cletis got together • • • there was a
list this long • • • of things he wanted and there was
never a list of anything we were going to discuss and
try to work out. It was just a list of demands.
So I didn't want to hear any more of the list of
demands. I wanted the proper people to be at the
meeting and maybe we could have actually ironed out
some things .
(Tr. V: 106).
Although there is little direct evidence of animus towards
any of the other complainants individually, there is a basis for
inferring that Respondent may have equated Mr . Lewis, who was
Mr. Wamsley •s roommate, with Mr. Wamsley (Tr . II: 208-09, V:
io2). Complainant Williamson testified that shortly before the
lay-off, Superintendent Roe told him that the safety committee
and "the Island Creek boys"--meaning Wamsley and Lewis--were
giving him a hard time on safety matters (Tr. II: 132-33). There
is also a basis for inferring animus towards Lewis as a result of
his collaboration with Wamsley as part of the union safety
committee at the mine. 9
As to Complainant Taylor, one can infer animus from ·
Respondent's failure to comply with the collective bargaining
agreement in laying him off in December 1992.
At no point did

'Roe refused to allow Lewis to participate in the safety run of October 15,
1992. The superintendent testified that he had been qiven no notice that Lewis
was qoing to participate and that Lewi•' absence from work that evening would
therefore have ahut down production on the night ehift. I have no basis for
finding that Roe's conduct in this incident was not justifiable.

1311

Responde nt eve~· · take·-issue with Taylor's assertion that he had
performed the duties of a coal loader during his employment with
Mutual Mining and at previous jobs (Exh. G-5, pp. 6-7, Tr . V:
98-99). Further, Respondent did not contend that Taylor
performed the job of coal loader inadequately (Exh. G-5, p. 7,
Tr. V: 98-100). Given the fact that Respondent ~ad conferred
with Ron May and David Vidovich at lenqth on matters regarding
the collective bargaining agreement, r infer that it was readily
discernible that the lay-off of Taylor violated that agreement.
Indeed, May had · specifically explained to Roe and Hatton "how
they must reduce; one, by seniority and ability to perform the
jobs that they would have remaining after the layoff" (Tr. I:
179).

The arbi trator in Mr. Taylor's gri evance noted :
The many arbitration awards submitted by the parties
disagreed on many matters .
However, all arbitrators
agreed when a panel laid-off employee is recalled, he
must evidence minimal ability to do what the job calls
for~
He competes against the minimal requirements of
the job. His ability must be minimally sufficient . He
is not competing against other employees. Ability does
not have to be equal or better to benefit from his
seniority.
(Exh . G-5, p . 6).
Given what appears to me to be the facially obvious
violation of the collective bargaining agreement in laying-off
Mr . Taylor, I infer that his lay-off was the result of animus on
behalf of Respondent and that it was related to his activities as
chairman of the union safety committee. In addition to the
inference drawn from the violation of the collective bargaining
agreement, there is some indication of hostility on the part of
Roe towards Taylor as the result of his safety committee
activities. Complainant Wamsley testified that, after the
October 1992 MSHA inspection, Roe was angry at Taylor and
Wamsley, and called them both liars (Tr. III: 7). Taylor's
account of the incident doesn't mention any remarks specifically
d i rected to him, only that there was a "heated discussion" (Tr.
II: 39).
As an indication of Respondent's animus towards the safety
committee generally, complainants point particularly to
superintendu·,t Roe's comments regarding a list of safety problems
presented t o him by the committee in October 1992. Roe told an
MSHA inspector that he regarded the union safety list as no more
than "suggestions . " I am not inclined to impute anti-safety
animus to Mr. Roe on the basis on this comment alone . The remark
can be viewed as simply a statement that be is not under a legal

1312

obligation t ·o .. correet- -a· condition simply because the union
believes it violates the Act.
One can, however, infer animus towards the United Mine
Workers and its safety committee at the Holden mine from other
factors . Until 1988 when it became a contract mine operator for
Island Creek Coal Company, Respondent had been a non-union
employer. It has apparently experienced cash flow difficulties
throughout its existence. on a recurring basis over a period of
years, paychecks· have bounced and Respondent has failed to pay
employee health insurance premiums . It also failed for several
years to contribute as required to the UMWA pension fund .
On November 30, 1992, a judgment in the amount of
$486,250.23 was entered against Respondent in favor of the United
Mine Workers pension fund (Exh. R-1) . One can assume that this
judgment may have created some degree of animus towards the UMWA
on the part of Mutual Mining.
Additionally, one can infer that Mutual Mining was not happy
about the aggressive activity of its union safety committee.
Mr. Roe's reaction to the October 1992 safety run and deep-seated
dislike of Mr. Wamsley support such an inference . Moreover, one
can infer that the company was somewhat upset that its union
safety committee filed a formal complaint with MSHA pursuant to
section 103(g) of the Act on December 18, 1992. Almost all of
the alleged violations about which the committee complained were
equipment defects (Exh. G-1) . Respondent's two mechanics were
absent on December 17, 18, and 21, 1992, which would have made it
impossible for Mutual Mining to quickly repair the defects (Tr.
IV: 20-21).
Prima Facie Case Established
I conclude that the Secretary has made out a prima facie
case of discrimination. This conclusion is based on the fact
that the discharge occurred only hours after the start of the
MSHA inspection and that Respondent knew the union safety
committee was responsible for the inspection . Mr. Roe's strong
dislike of Complainant Wamsley, which was due in part to
Wamsley•s activities on the union safety committee, and the
likely identification of Mr . Lewis and Mr. Taylor with Wamsley,
as fellow members of the union safety committee, are also factors
leading me to conclude that a prima facie case has been
established. Finally, the lack of any apparent basis to lay-off
Mr . Taylor under the terms of the collective bargaining agreement
indicates that his discharge was retaliatory.
The fact that nine of the 12 employees laid-off did not
engage in protected activity does not dissuade me from drawing
the inferences necessary to conclude that a prima facie case has
been established. Under the National Labor Relations Act there

1313

are numerous.. ··cases-·in·· Which employers have been found guilty Of
committing unfair labor practices when many employees who have
not engaged in protected activity have been discharged in
addition to some who have engaged in such activity. ~' ~ '
N. L.R.B. v. Lakepark Industries. 919 F. 2d 42 (6th Cir. 1990);
Sonicraft , Inc., 295 NLRB No. 78, 766, 779-783 (1989), 133 BNA
LRRM 1139, enforced, 905 F.2d 146 (7th Cir. 1990), cert. denied,
498 u.s 1024 (1991) . The discharge of the nine "innocent"
employees is a factor to be weighed with other factors in
determining whether Respondent has rebutted the Secretary's
prima facie case.
Respondent contends that it is preposterous to think that it
would lay-off the nine to get at Taylor, Wamsley, and Lewis, and
that the mass lay-off virtually proves that it had a legitimate
economic motive for the lay-off. Mutual Mining notes that the
lay-off left its equipment idle at night and this would make no
sense if the lay-off was not economically justifiable.
The
answer to this contention was probably best stated by Judge
Richard Posner of the United States Court of Appeals for the
Seventh Circuit:
The company argues that it would not have been rational
for it to shoot itself in the foot by curtailing the
work week in the sewing department while it had orders
to fill. But the long-term benefits of getting rid of
the ·union might compensate for a short-term loss in
filling orders more slowly • • • That is the logic of
retaliation; a present cost is traded off against ·a
future benefit from deterring behavior injurious to the
retaliator.
N.L.R.B. v . Advertisers Manufacturing co., 823 F.2d 1086, 1089-90
(7th Cir. 1987).
Rebutting the Prima Facie Case
Mutual Mining contends that the timing of the lay-off in
relation to the section 103(g) complai nt and ensuing inspection
is pure coincidence. Respondent has the burden of overcoming the
inference created by the proximate timing of the lay-off, its
awareness of the protected activities , and its animus towards the
union safety committee and its members, individually .
Mutual Mining must establish that the timing of the lay-off
was entirely coincidental. If protected activities had anything
at all to do with the lay-off, or the selection of the
complainants· for the lay-off, I would conclude that "but for"
their protected activities, complainants would not have been
discharged and that Respondent violated section 105(c) in
terminating their employment on December 21, 1992.

1314

Evidence· Tending to Rebut the Prima Facie Case
There . is a good deal of evidence in this record supporting
Respondent's contention that the lay-off was made for legitimate
business reasons and that the selection of the complainants for
lay-off was nonretaliatory.
Mutual Mining has been in
precarious financial shape throughout its operations at the
Holden site. It has bounced employee paychecks and failed to pay
health insurance- on a number of occasions over a period of years .
Its financial situation became more complicated at the end of
November 1992 by virtue of the judgment against it for failure to
contribute to the UMWA pension fund (Tr. I: 184-185). 10 On the
other hand, there are some indications that the company's
financial situation was better than usual in December 1992. Its
corrected 1992 Federal Income Tax Return apparently shows a
$300,000 profit for 1992 (Tr. III : 172, V: 30-32, 180).
Nevertheless, the core of Respondent's case rests on two
somewhat contradictory themes . Most important of these is a
contention that shortly before the December 21, 1992, lay-off,
Mutual Mining was informed by Island Creek Coal Company that it
might be buying less coal from Mutual Mining in the next several
months. The second theme is a contention that for several months
prior to December 21, Mutual Mining had been considering
realigning its workforce by shifting employees between the day
shift and night shift in order to increase productivity. 11
According to Mutual Mining it had decided to institute the
realignment on December 21 for reasons totally unrelated to the
union safety committee or MSHA. On that date Red Hatton and
Allan Roe went to discuss the realignment with Ron May, the human
resources supervisor of Island Creek Coal, and discovered that
they could not effectuate this realignment without violating the
collective bargaining agreement with the UMWA. Upon close
analysis, neither of these explanations is sufficiently
persuasive to overcome the strong inference created by the timing
of the lay-off, as well as the evidence of animus towards the
union safety committee and its members.
Anticipated Reduced pemand from Island Creek
The most important evidence in this record regarding Mutual
Mining's anticipation of reduced demand for its coal is the
"This judgment is being satisfied by a $25,000 initial payment and $16,000
monthly installments (Tr. I: 189-90, V: 187-88) ~ Mutual Mining has also been
paying $5,000 a month on a j udgment in favor of East Kentucky Explosives company
•ince the Fall of 1992 (Tr . I: 187-88, V: 187-88).
"Although there is •ome evidence that Respondent had planned to lay-off a
few employees prior to December 21, 1992, I have not credited that evidence for
the reasons atated in footnote S.

1315

testimony or--Mik·e· .Tones, the superintendent of Island creek's
subsidiary, Laurel Run Mining, who confirms that sometime in 1992
he did tell either Allan Roe or Respondent's president, Johnny
Porter, that his company would be buying less coal from Mutual
Mining for the next 2 months (Tr. IV: 40). However, Mr. Jones
believes this conversatio~ · took place in early 1992, not at the
end of the year proximate to Mutual Mining's lay-off (Tr. IV:
40). When pressed on the timing of the conversation, Jones
responded "I can't recall exactly when it was in 1992 . I know
there was a slack in sales." (Tr. IV: 43).
Charles Leonard, Laurel Run•s manager for contract coal at
the time in question, testified that he told Mutual Mining that
Island creek would be accepting less coal "probably around in the
last of '92, maybe a little bit before" (Tr. IV: 49) . This
testimony is not as helpful to Respondent as it first appears.
In September and October 1992, Mutual Mining produced unusually
large amounts of coal (Exh . G-4). The tonnage for those months ,
38,374 and 40,954, was almost 33 percent h~gher ·than the normal
amount of coal demanded by Island Creek (Tr . I: 212-213, E~.
G-4). Thus, the testimony of Jones and Leonard could show
nothing more than demand would revert to its normal level. Since
Mutual Mining had not hired any new employees since November
1991, this decrease in demand does not explain the lay-off .
Moreover, Mutual Mining's financial statement (Exh. G-8)
prepared only 9 days after the lay-off does not comport with
Respondent ' s contention that it anticipated sharply · reduced
demand for its coal at the time of the lay-off. Page two of that
document shows an average tonnage of 32,000 per month for 1992
and an anticipated 30,000 tons per month for 1993. Finally, the
testimony of Respondent's president, Johnny Porter , regarding his
conversations with Jones and Leonard are just as consistent with
a return to the normal levels of demand from Island Creek, as
with an anticipated reduction in demand .t hat ~ould explain the
lay-off.
Porter testified:
He (Mike Jones] come up to me -- now, the date, I got
so many things going, I can't remember a lot of dates.
I think it was in November. He said, "Johnny, I got
some news today." He said, "We might have to cut you
back on production for November, December and maybe
January."
He said, "We might have a time where the stockpiles are
full. We might even have to cut you off."
(Tr. V: 151) •

1316

As it is-·-un1ikely· that Jones would have been telling Porter
of an anticipated reduction in demand for November in November,
it is likely that by Porter's account the conversation occurred
earlier. It would, thus, be equally consistent with a return to
normal production levels from the peak levels of September and
Octoberi as it would be with a reduction necessitating a lay-off.
Equally important is the fact that no sharp reduction in the
demand for Respondent's coal ever occurred. Indeed, the retained
employees continued to work 10-hour days and some vacation days
(Tr. I: 195). Mutual Mining's failure to produce any documentary
evidence supporting its proffered reason for the lay-off detracts
greatly from its credibility. J. Huizinga Cartage co . , Inc. v.
N.L.R.B., 941 F . 2d 616, 621-22 (7th Cir. 1991).
Demand for Respondent's coal remained essentially constant
from November 1992 until the company was hit by the UMWA's
selective strike in September 1993. Given this constant demand,
the recall of those laid-off in December detracts substantially
from the credibility of the company's asserted legitimate
business motive . Indeed, Allan Roe's explanation for the recalls
is more consistent with Judge Posner's exposition of the economic
logic of a retaliatory discharge.
Roe explained the decision to recall everyone still on layoff status in August 1993 as due to "low tonnage" and the
undersigned's order of temporary reinstatement for complainants
Wamsley and Lewis (Tr. V: 63-64). Since Respondent's production
was fairly constant between the lay-off and August 1993, this
indicates that the lay-off made no sense economically in the
long-run . Roe's testimony also indicates that the lay-off
affected production little initially but began to have an adverse
effect afterwards (Tr. V: 67-68) .
Moreover, only 1 month after the lay-off Respondent recalled
Complainant Williamson and Willis Hill, the two bulldozer
operators for the night shift. This recall accounted for
50 percent of the production on the night shift (Tr . V: 80). The
extremely brief lay-off of the two bulldozer operators makes
Mutual Mining's claim that it feared a sharp cutback in coal
demand from Island Creek implausible . There is no evidence that
Island creek informed Respondent in January to disregard any
prior warnings regarding reduced purchases. The January recall
also gives credence to the Secretary's contention that Williamson
and Hill were laid-off so that Respondent could lay-off Taylor,
who had more seniority, without obviously violating the
collective bargaining agreement.
The Nexus with the Realignment
A major component of Respondent's defense to charges of
retaliatory motive is that there was an intervening event that

1317

negates what-eve·r ·in"ference could be otherwise drawn from the
timing of the lay-off. The event is the meeting at mid-day on
December 21, 1992, between Allan Roe, "Red" Hatton, and Ron May,
the human resources director of Island Creek Coal Company.
According to Hatton, there were no plans for a lay-off of the
magnitude of the one that occurred until May informed Roe and
Hatton that they could not effectuate their proposed realignment
of the workforce without violating the collective bargaining
agreement (Tr. V: 182) • 12
The difficulty with this explanation is that the objective
of the realignment that Mutual Mining had been contemplating for
several months was to increase production. There is an obvious
inconsistency with the two primary nonretaliatory explanations
for the lay-off. The concern regarding decreased coal purchases
by Island Creek, if credited, does not explain why Mutual Mining
would desire to increase productivity by shifting employees from
the day shift to the night shift. 13 Mr. Hatton testified that
when he got into his truck the morning of December 21, 1992-before he had learned of the MSHA inspection--he had decided to
implement the realignment that day (Tr. V: 171). This testimony
is extremely implausible if Respondent was expecting sharp
cutbacks in its sales to Island Creek.
If the lay-off had nothing to do with the realignment, the
question becomes why did it take place on December 21? There is
little in this record that would indicate the need to effectuate
the lay-off on such short notice absent the desire to retaliate
for the MSHA inspection that morning. Sonicraft, Inc., supra.
Roe testified that Respondent decided to implement the
realignment on December 21, because Mutual Mining wanted to avoid
paying holiday pay for the Christmas vacation (Tr. V: 73-75).
However, a realignment would not have saved the company holiday
pay--only a lay-off would do so. If the company wished to layoff employees due to the warnings of reduced purchases from
Island Creek, there is no reason why it waited until December 21,
1992, to do so--given the fact that these warnings were given
some time prior to that date.
Respondent has attempted to tie the realignment to the layoff by suggesting that it was undertaken only after Roe and
Hatton were informed by May that to achieve the goals of the
realignment, i . e . , shifting employees from day to night, it would

12Ae diecuaaed in footnote S, I conclude that the evidence fail• to establish
that Respondent- had planned to lay-off any of ita employees prior to December 21,
1992.
13
The lack of logic in having the realignment if Mutual Mining expected that
Island Creek would be sharply cutting back on its coal purchases was recognized
.by Respondent'• labor co~aultant David Vidovich (Tr. III: 51).

1318

have to inst"i:tute ·a- ray-off and recall . Indeed, Mr. May's
testimony indicates that the idea for the lay-off originated with
him.
One difficulty with this theory is that it is inconsistent
with Respondent's .other proffered explanation and its behavior
immediately following the lay-off . If the lay-off was simply a
means of achieving the realignment, Respondent's alleged
anticipation of -sharply reduced coal demand as a motive for the .
lay-off is obviously fallacious. Moreover, Roe ' s testimony
regarding holiday pay indicates that Roe and Hatton had decided
to implement a lay-off on December 21, 1992, prior to their trip
to May's office (Tr. V: 73-75) . The presentation of shifting,
inconsistent, and/or implausible explanations for the lay-off
itself suggests discriminatory motive. N.L . R.B . v . Rain-Ware,
~' 732 F. 2d 1349, 1354 (7th Cir. 1984); Hg_ll v . N.L.R.-B . ,
941 F.2d 684, 688 (8th Cir . 1991}.
Secondly, if the lay-off was to accompl~sh the same purposes
as the realignment, the recall of most or ail the employees
should have followed the lay-off quickly.
Within a short time
Mutual Mining's workforce should have resembled the "realignment
with very few people to be laid-off," allegedly contemplated by
Hatton on the morning of December 21 (Tr. V: 182) . The pace of
the recall is more consistent with retaliation in that the
January 1993 recall involved only Complainant Williamson and
Willis Hill, and the April 1993 recalls stopped just short of the
point where Respondent would have had to recall Complainants
Lewis and Wamsley (Exh. G-2, Tr. I: 151-52).
The third reason why it is hard to believe that the
December 21, 1992, meeting with May induced a bona fide
nonretaliatory lay-off is that nothing May told them at that
meeting should have been a revelation to Roe and Hatton. They
had been discussing shifting employees from the day shift to
night shift with both May and Vidovich for some time prior to
that date (Tr. I, 105-07, III : 45-53, IV: 64, 70-71). Vidovich
had already told them that, under the collective bargaining
agreement , such a realignment had to be performed according to
the employees' seniority and job title (Tr. I: 106-07, III:
45-53) .
.
Prior to December 21 , 1992, possibly on several occasions,
Respondent had also discussed with Mr. May, the shifting of
employees from day shift to the night shift under the terms of
the collective bargaining agreement (Tr . I: 168-69, 177-80, III:
64-65). Given the number of discussions Mutual Mining management
had with Vidovich and May concerning the realignment, .I do not
believe that on December 21, 1992, that they gained surprising
new information which caused them to institute a lay-off instead.

1319

Indeed, I find -th·e -a'Ccount of this implausible intervening event
itself evidence that the lay-offs were pre·t extual. 14
Conclusion
I find that the timing of the lay-off of the complainants
establishes a prima facie case that their termination on
December 21, 1992, was in retaliation for the safety run of
December 17, -1992, and the filing of a section lOJ(g) request for
the MSHA inspection that commenced the morni~g of December 21. I
discredit the alternative nonretaliatory explanations for the
lay-off proffered by Respondent and find that the lay-off of each
of the complainants violated section lOS(c) of the Act.
ORQER
1.
The parties are to confer and advise the undersigned
within 30 days of this decision as to whether they are able to
stipulate to the amount of back pay due the complainants. The
parties are also ordered to advise the undersigned as to whether
they are able to stipulate to an appropriate civil penalty, or
facts that will allow the undersigned to calculate a civil
penalty pursuant to the criteria set forth in section llO(i) of
the Act. If the parties are unable to stipulate to the amount of
back-pay due and an appropriate penalty, they may either submit
written arguments on these issues· or request a supplemental
hearing. The Secretary is ordered to offer Respondent
documentary evidence, such as W-2 statements, for all employment
of Mr. Wamsley between the date of his lay-off and the date he
declined reinstatement.
2. Respondent IS ORDERED to inform all its employees by
posting a legible notice in a prominent place at all its
properties, which are subject to the Federal Mine Safety and
Health Act, that the lay-off of December 21, 1992, at its Holden,
West Virginia, mine has been found to violate section lOS(c), the
anti-retaliation provision of the Act. Said notice shall also
inform Respondent's employees that they have a right under the
Act to bring to the attention of management, the Mine Safety and

'4Given the fact that Roe and Hatton readily admit that the decision to
conduct a mass lay-off was made on December 21, after they were aware of the MSHA
inapection, it is aomewhat anomalous to believe that they had the sophistication
to cover their tracks by arranging a meeting with Kay to make it appear that the
lay-off was precipitated by an event other than the inspection. However, I find
tbia to be the moat likely explanation for what transpired. l'ir•t of all, Roe ' s
teatimony (Tr. V: 73-75), indicating that be and Hatton diacuaaed aaving holiday
pay prior to meeting May on December 21, provides evidentiary aupport for this
conclusion. As mentioned before, only a lay-off, not the reali9n111ent, would have
aaved the company the holiday pay. Secondly, the alternative explanation, that
what May had to tell Roe and Hatton was a complete aurpriae and led to a mass
lay-off that they had not previously contemplated, i• even more implausible.

1320

Health Admini-stration 1 ·and state and local officials, any
concerns they have with regard to safety and health conditions in
their employment. Said notice shall also inform employees that ·
such activities are protected by section lOS(c) of the Federal
Mine Safety and Health Act and they may file a complaint with the
Mine Safety and Health Administration (MSHA) if they believe such
rights have been violated. Said notice shall also inform
employees that they may be entitled to reinstatement, back pay,
and other remedies . if a complaint filed under section lOS(c) is
found to be meritorious .

Ar
r J. Amchan
Administrative Law Judge __
Distributio~:

Patrick L. DePace, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)

w. Jeffrey Scott, Esq., 311 Main Street, P.O . Box 608, Grayson,
KY 41143 (Certified Mail)
/jf

1321

FEDERAL lllllB SAFETY ABD REAI·T B UVJBW CC IM!lfTSS:IOH
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 2 7 1994

.:• CIVIL PENALTY PROCEEDINGS
: Docket No. PENN 93- 343
: A.C. No. 36-07266-03536
.
v.
: Docket No. PENN 93-431
RNS SERVICES, INCORPORATED,
.: A.C. No. 36-07266-03537
Respondent
..• Refuse Pile Reprocessing
SECRETARY OF LABOR,
.: CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
: Docket No. PENN 93-479
Petitioner
: A.C. No. 36-07266-03501
.
v.
: Docket No. PENN 94-30
MASE TRANSPORTATION CO., INC., : A.C. No. 36-07266-03502
..• Refuse Pile Reprocessing
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

DECISION
Appearances:

Richard Rosenblitt, Esq . , Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner:
R. Henry Moore, Esq., Buchanan Ingersoll, P.C.,
Pittsburgh, Pennsylvania, for Respondents.

Before:

Judge Melick

These consolidated cases are before me pursuant to
section lOS(d) of the Federal Mine Safety and Health· Act
of 1977, 30 u.s.c. § 801, ~ ~., the "Act," to challenge
citations and orders issued by the Secretary of Labor for
the alleged failure of Respondents to have complied with
regulations for miner training at the RNS Services, Inc.
(RNS)- No. 20 refuse reprocessing site. This site has been
identified as the "Refuse Pile Reprocessing" mine. ·
on April 14, 1994, the Secretary filed a motion
for partial summary decision on the issue of jurisdiction.
However, as noted in Respondent's brief in opposition, a
dispute remained regarding certain material facts. See
commission Rule 67(b), 29 c.F.R. § 2700.67(b). A hearing
was thereafter held limited, upon agreement of the parties,
to the jurisdictional issue.
13 2 2

There is·· no dispute that the No . 20 refuse disposal
site at issue was purchased by RNS in early 1989 from the
Barnes and Tucker Company, which had operated the site as
part of its· Lancashire No. 20 Mine. Until active mining
ceased in April 1986, the Lancashire No. 20 Mine included
an underground area from which bituminous coal was extracted,
a coal cleaning and preparation plant on the surf ace approximately ioo· to 200 feet from the mine's "Slope Portal," and
the adjacent ref-use site at issue in these cases. 1
At the preparation plant bituminous coal was broken,
crushed, sized, cleaned, washed, drying, stored, and loaded.
Rejected coal and refuse from the preparation plant, as well
as some surplus processed coal, was stored in the adjacent
refuse pile. Also on the premises of the mine was at least
one storage silo containing coal .
At the time of the inspection giving rise to the citations and orders at issue, and at the time these citations
and orders were issued, the underground Lancashire No. 20 Mine
had been permanently abandoned and the· preparation plant had
been dismantled and removed. Apparently only the coal refuse
pile containing refuse from the preparation plant and some
surplus processed coal and the storage silo containing coal
remained.
The evidence shows that RNS provides services for
cogeneration power plants by loading and transporting its
product to fuel the plants and by removing ash waste.
Mase Transportation Company, Inc. (Mase) provides the trucks
that transport the material from the No. 20 site to the cogeneration facilities. Approximately 720,000 tons of this
material per year is trucked directly from the refuse pile
without processing to the Cambria cogeneration facility and
approximately 120,000 tons per year of processed material is
trucked to the Ebensburg cogeneration facility. The latter
material is processed at the No. 20 site.
There appears to be no dispute that the portable
processing plant at the No. 20 refuse site is similar to that
depicted in Government Exhibit No. 1. Photographs in evidence
(Exhibits R-2 through R-5) were taken of the actual processing
unit. An end loader loads material from the refuse piles onto
1

The slope portal had an upper deck on which a conveyor
. belt conveyed the mi ne product to the preparation plant for
processing and a lower deck containing a track for men and
supplies . What was known as the "Man Portal," located about
1/4 mile from the preparation plant, also permitted entry for
underground miners and smaller size supplies.

1323

a grizzly on the portable processing unit and into a hopper
{Point A on Government Exhibit No. 1). The grizzly consists
of horizontal metal bars which break up clumps of material
before it enters the bopper bin {Exhibit R-3). The grizzly
also screens out large objects such as mine timbers and steel
rails that may be in the material. According to Supervisory
MSHA Coal Mine Inspector James Biesinger, the bucket on the
front-end loader may also be used to smash-up larger pieces
of material against the grizzly.
Neil Hedrick, President and shareholder of RNS and a
graduate mechanical engineer with extensive experience in
the coal mining industry, acknowledged that the crushing
of the by the bucket of the front-end loader against the
grizzly would constitute "breaking."
The material that enters through the grizzly passes
through the hopper to a moving caterpillar tread-like conveyor
at the bottom of the hopper {Point B on Government Exhibit
No. 1). 2 The testimony of Inspector Fetsko is undisputed
that the matted and clumped material that was dumped into the
hopper exited at the bottom separated and no longer in clumps.
The material then proceeds up an inclined conveyor where
it is dumped onto a metal grate and screener {Point D on Government Exhibit No. 1). The material falls through the grate onto
vibrating screens. Larger material is separated by the screens
and fine material passes through the screens onto another
conveyor (Point Fon Government Exhibit No. 1). The rock and
other reject material is loaded with an end-loader onto trucks
operated by Mase employees and is hauled away. The fine material
is conveyed to a dump. An end-loader loads this material· as
needed onto trucks operated by Mase and is transported to the
Ebensburg cogeneration plant.

2

While Inspector Fetsko believed, based upon the
noise emanating from the hopper area of the portable
processing unit and from the fact that material that was
matted in clumps entered at Point A and exited at Point B
at Exhibit G-1 broken up, that there was . a crushing unit
between Point A and Point B, the more credible evidence
from the photographs, the testimony of MSHA Supervisory
Inspector Biesinger and the testimony of Mr. Hedrick leads
Ile to conclude that there was indeed no specific "crusher"
between Point A and Point B of Exhibit G-1. The only crushing or breaking resulted from mashing the material against,
and passing through, the grizzly bars and from dropping and
displacement on the caterpillar-tread conveyor at the bottom
of the hopper.

1324

Section 4 of the Act provides as follows:
Each coal or other mine, the products of which
enter commerce, or the operations or products
of which enter commerce, and each operator of
such mine, and every miner in such mine shall
be subject to the provisions of this Act.

I

L

"Coal or other mine" is defined in Section 3(h)(l) of the Act
as follows:
'[C]oal or other mine' means (A) an area of land
from which minerals are extracted in nonliquid form
or, if in liquid form, are extracted with workers
underground, (B) private ways and roads appurtenant
to such area, and (C) lands, excavations, underground
passageways, shafts, slopes, tunnels and workings,
structures, facilities, equipment, machines, tools,
or other property including impoundments, retention
dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from,
the work of extracting such minerals from their
natural deposits in nonliquid .form, or if in liquid
form, with workers underground, or used in, or to be
used in, the milling of such minerals, or the work
of preparing coal or other minerals, and includes
custom coal preparation facilities. In making a
determination of what constitutes mineral milling
for purposes of this Act, the Secretary shall give
due consideration to the convenience of administration resulting from the delegation to one Assistant
Secretary of all authority with respect to the health
and safety of miners employed- at one· physical
establishment.
The Secretary argues that he has jurisdiction under the
Act under ·two theories. He first maintains that RNS was, in
its work performed at the No. 20 refuse disposal site, "engaged
in the work of preparing coal" under Section 3(h)(l) of the
Act and as defined in Section 3(h)(2)(i) of the Act. Under the
latter section "work of preparing the coal" is defined .as the
breaking, crushing, sizing, cleaning, washing, drying, mixing,
storing, and loading of bituminous coal ••• and such other work
of preparing such coal as is usually done by the operator of
the coal mine."
rt is undisputed in these oases that the. material being
processed at the site at issue included surplus processed coal
and coal remaining from the storage silo, as well as refuse
material from the Barnes and Tucker coal mine and preparation
plant. There is accordingly no need to determine in these oases
whether the processing of refuse material alone constitutes

1325

"work of preparing ·the· coal." Moreover, the credible evidence
of record establishes that RNS was engaged in "work of preparing"
that coal.
The credible hearing testimony establishes that RNS engages
in "breaking" of coal. In A Dictionary of Mining. Mineral and
Belated Tepns,, U.S. Dept. of the Interior, 1968 (Dictionary),
"breaking" is defined, in part, as "(s]ize reduction of larger
paritcles [sic]-." The breaking in this case occurs at the .
grizzly bars, at the top of the hopper, and at the screens.
MSHA Supervisory Inspector Biesinger testified that breaking
occurs when the material passes through the "grizzly" bars and
where the bucket of the front-end loader scrapes the deposited
material along the bars to break up large chunks. Biesinger
further testified that the screening operation causes coal breakage as the material drops off a conveyor and drops through metal
screens. The vibration of the screens also causes some breakage.
It is also essentially undisputed that RNS engages in the
"sizing" of coal . The Dictionary defines sizing, in part, as the
"process of separating mixed particles into groups of particles
all of the same size, or into groups in which all particles range
between definite maximum and minimum sizes" and the "operation of
•eparating an aggregate of particles into sizes on a series of
screens." In order to meet the specifications of Ebensburg Power
Company, the material provided by RNS must range in size from
O to 3/4 of an inch. In order to achieve this, RNS uses a double
screening process. This process clearly constitutes "sizing. "
RNS also mixes coal. RNS President Neil Hedricks testified that
RNS mixes material from various parts of the refuse pile to
obtain material with a 6,800 BTU rating for the Ebensburg plant.
In addition, RNS engages in the "cleaning" of coal . The
Dictionary defines "cleaning, dry," in part, as "[t]he mechanical
separation of impurities from coal . by methods which avoid the use
of liquid." In these cases, RNS uses "grizzly" bars at the top
of a hopper to remove large, non-coal objects _such as wood or
metal and uses double screens to remove objects such as rocks.
The Secretary also argues that the No. 20 refuse site meets
the definition of "coal or other mine" under Section 3(h)(l}
of the Act in that "the area at issue constitutes lands •• •
structures, facilities ••• or other property ••• used in • ••
or resulting from the work of extracti ng such minerals from
their natural deposits in non-liquid form ••• ·" In this
case it is clear that the "lands," "structures," and "other
property" on which the subject refuse pile and coal silo are
situated and .the structure of the coal silo resulted from the
work of the Barnes and Tucker mine extracting coal from its
natural deposits in non-liquid form. Accordingly, the land,
the coal storage silo and other property constitute a coal or
other mine within the mean.ing of that section of the Act and

1326

jurisdictiori--a1so exists over the RNS operation for this
additional reason. While RNS argues that ·t he refuse area
(but not the coal storage silo and the coal stored within)
resulted from coal preparation, that fact does not preclude
a concurrent finding that the area also resulted from the
prior extraction of coal from its natural deposits.
It has been stipulated that if jurisdiction exists over
RNS it also exists over Mase as a contractor performing services
at the RNS No. 20 refuse location. Accordingly, I find jurisdiction under the Act also over Mase. I therefore also reach
the Motion for Settlement filed by the parties and conditioned
upon the finding of jurisdiction. In this motion, the Secretary
proposes to vacate Citation Nos. 3708787 and 3708788 and to
reduce the remaining proposed penalties from $909 to $636.
I have considered the representations and documentation
submitted in these cases, and I conclude that the proffered
settlement is acceptable under the criteria set forth in
Section 110(i) of the Act.
ORDER

WHEREFORE, the motion for approval of settlement is GRANTED,
Citation Nos. 3708787 and 3708788 are hereby acated and it is
ORDERED that Respondent pay a penalty of $63 within 30 days of
the date of this decision.

Law Judge
Distribution:
Richard Rosenblitt, Esq., Office of the Solicitor,
U.S. Department of Labor, 14480 Gateway Building,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, USX Tower,
57th Floor, 600 Grant Street, Pittsburgh, PA 15219
(Certified Mail)

/lh

1 327

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

Jun e 28, 1994

CONTEST PROCEEDING

ASARCO, INCORPORATED,

Contestant
Docket No. WEST 94-443-R ~
Citation No . 3904841; 3/J0/94

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
·Re.s pondent

.:

Leadville Unit
Mine ID 05-00516

ORDER OF DISMISSAL

Before:

Judqe Merlin

on May 27, 1994, the operator filed a .notice of contest of
Citation No. 3904841 which was issued on March 30, 1994, in the
above-captioned action. On May 31, 1994, the Solicitor fileu a
motion to dismiss this.,.case. On June 7, 1994, the operator filed
its response to the Solic~tor's motion.
·
The Federal Mine Safety and Health Act affords an operator
the opportunity to challenge a citation under Section lOS(d),
30 u.s.c . § 815(d), which provides in relevant part 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 o·f the length of abatement time fixed in
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 * * * *·
In her motion the Solicitor seeks dismissal on the
ground that the notice of contest was untimely .
A long line of decisions going back to the Interior Board of
Mine Operation Appeals holds that cases contesting the issuance
of a citation must be brought within the statutory prescribed 30
days or be dismissed. Freeman Coal Mining Corporation, 1 MSHC
1001 (1970); ·consolidation coal co., 1 MSHC 1029 (1972); Island
Creek Coal Co. y. Mine Workers, 1 MSHC 1029 (1979), aff'd by the
Commission, 1 FMSHRC 989 (August 1979); Amax Chemical Corp . , 4
FMSHRC 1161 (June 1982); Peabody coal company, 11 FMSHRC 2068
(October 1989) ; Big Horn Calcium Company, 12 FMSHRC 463 "(March
1990); Energy Fuels Mining Company, 12 FMSHRC 1484 (July 1990);
Prestige Coal Company, 13 FMSHRC 93 (January 1991); Costain Caal
13 28 .

Inc. , 14 FMSHRC.--.138-8- -(August 1992} ; C and S Coal Company, 16
FMSHRC 633 . (March 1994); Cf. Rivco Dredging Corp, 10 FMSHRC 889
(July 1988); Northern· Aggregates Inc., 2 FMSHRC 1062 (May 1980);
Wallace Brothers, 14 FMSHRC 596 (April 1992).
As quoted above, Section 105(d) requires that the operator
notify the Secretary of its intent to contest the citation
within 30 days of issuance. Notice is completed upon mailing.
J.P. Burroughs,-3 FMSHRC 854 (1981). The citation was issued on
March 30, 1994, · and the operator was required to notify the
Secretary on or before April 29, 1994. The operator mailed its
contest on May 23 which was therefore, 24 days late.
The operator argues that its contest was timely filed
because the inspector on April 14, 1994, and again on May 17,
1994, issued subsequent actions extending the citation • ...The
May 17 action extended the citation until May 31 and i t is this
date the operator relies upon. Thus the operator characterizes
the inspector's action as an extension of time to respond and
contends that because of it the instant suit did not have to be
filed until May 31. The operator's position is without merit.
An MSHA inspector has no authority to extend the filing deadlines
mandated by Congress in the Act. And it is clear that the
inspector did not purport to do any such thing.
In giving the
reason for his action he referred to the further investigation
and inspection by MSHA to determine methods of abatement or
application of a petition for modification. There is no indication that in allowing the operator time to discuss the cited
condition with its legal department, the inspector even thought
that he was extending the time for the operator to file its
notice of contest. What the inspector did was extend the time
for abatement and termination of the citation. That was all he
did and all he could do.
In light of the foregoing, it is ORDERED that this case be
and is hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Earl K. Madsen, Esq., Asarco Inc., 1717 Washington Avenue,
Golden, co 80401-1994
Margaret A. Miller, Esq., Office of the Solicitor, u. s. Department of Labor, 1999 Broadway, suite 1600, Denver, co 80202-5716

/gl

1329

FED~JU\JA. ..!UNE - SAFETY

AND HEALTH REVIEW COMMISSION

1244 SPEER BOULEVARD #280
DENVER , CO 80204-3582
(30 3) 844-5266/FAX (303) 844-5268

JUN 2 9 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

..
.
..

v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 92-212-M
A.C . ' No. 29-00175-05526
Mississippi Chemical Corp.

MISSISSIPPI POTASH, INC.,
(MISSISSIPPI CHEMICAL CORP.),
Respondent
DECISION

Appearances:

Robert A. Goldberg, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
for Petitioner;
Charles c . High, Jr., Esq., Kemp, Smith, Duncan &
Hammond, P.C., El Paso, Texas,
for Respondent .

Before:

Judqe Cetti
I

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act". The
Secretary of Labor on behalf of the Mine Safety and Health Administration (MSHA), seeks a civil penalty of $8,000.00 from the Respondent, Mississippi Potash Inc . (formerly Mississippi Chemical
Corporation), for the alleged violation of 30 C.F.R. § 57.3360.
This safety standard in relevant part provides:
Ground support shall be used where ground
conditions, or mining experience in similar
ground conditions in the mine, indicate that
it .is necessary .
The primary issue at the hearing was whether or· not there
was a violation of the cited safety standard. More specifically
the issue was whether . ground conditions or mining experience in
similar ground conditions in the mine indicated the need for
additional ground support .

1330

The citation in question was issued after an MSHA ground
fall investigation at Respondent's underground potash mine
located near Carlsbad, New Mexico. There was a fatality
resulting from a roof fall in the North 405 Panel of the mine.
Respondent was mining potash using a modified longwall system.
Basically, Respondent drove entries to the end of the ore body
and then retreated using continuous miners to mine out the potash
as they retreated to the starting point.
l:J:J:

At the hearing the parties entered into the record Stipulations as follows :
1. Mississippi Potash Inc. (formerly Mississippi chemical
Corporation) is engaged in mining and selling minerals and its
mining operations affect commerce.

i. Respondent is the owner and the operator of the
Mississippi Potash, Inc . , Mine Identification No. 29-00175.
3. Respondent is subject to the jurisdiction of the Federal
Mine and Safety Health Act of 1977, 30 u.s.c. § 801, et seq.,
(the Act).
4. The presiding Administrative Law Judge has jurisdiction
over this matter .
5. The subject citation as well as any modifications issued
thereto, was properly served by a duly authorized representative
of the Secretary of Labor, the Mine Safety and Health Administration, upon an agent of the Respondent on the date and place
stated therein .
Accordingly, the citation may be admitted into evidence
for the purpose of establishing its issuance and not for the
truthfulness or relevancy .of any statements asserted therein.
6. The proposed penalty of the $8,000.00 will not affect
Respondent's ability to continue in business.
7. Respondent is a mine operator with 336,048 tons of
production in 1991.
8. The certified copies of the Mine, Safety and Health
Administration's Assessed Violations History accurately reflect
the history of the mine for two years prior to the date of the
citation.

1331

--· ..

-- ·- - .

IV

The record in this penalty proceeding inc ludes 1,191 pages
of transcript of the testimony of 13 lay and expert witnesses and
59 exhibits.
It ·took four full days of hearing to take the
testimony of the 13 wit~esses . At the conclusion of the second
day it appeared that the Petitioner had established a prima facie
case . During the last two days of hearing, Respondent presented
credible lay and expert testimony that convincingly established
that prior to the ground fall, there were no detectable ground
conditions nor mining experience in similar ground conditions in
the mine to indicate that ground support was necessary. Particularly persuasive was the testimony of Respondent's expert witness, the mining consultant Dr . John F. Abel.
Near the conclusion of the hearing, I granted Petitioner's
request for a short recess so counsel could consult with his
expert before responding to Respondent's motion for dismissal .
When the hearing resumed on the record, counsel for Petitioner
stated that Respondent and Petitioner had discussed the facts of
the case and came to an agreed proposed disposition. Counsel for
Petitioner on behalf of both parties made a motion that MSHA be
permitted to withdraw the citation and the related proposed
penalty. Having heard all the evidence and having considered the
matter I granted the motion.

ORDER
Citation No . 3277238 and its related proposed penalty are
VACATED and the above captioned case is DISMISSED.

Au st F. Cetti
Administrative Law Judge
Distribution :
Robert A. Goldberg, Esq . , Office of the Solicitor, U. S. Department of Labor, 525 Griffin Street, Suite 5 01, Dallas, TX 75202
(Certified Mail)
Charles C. High, Jr., Esq., KEMP, SMITH, DUNCAN & HAMMOND, P.C.,
P.O. Drawer 2800, El Paso, TX 79999-2800 (Certified Mail)
sh

1332

FEDERAL ·MXNE- SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

JUN 2 9 1994

.
.
.

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

v.
INTERMOUNTAIN SAND COMPANY,
Respondent

.
.
.

CIVIL PENALTY PROCEEDING
Docket No. WEST 93-95-M
A. C. No. 42-01071-05517
·Intermountain Pit

DECISION

Appearances:

Robert J. Murphy, Esq., Office of the Solicitor,
Denver, Colorado,
for Petitioner;
K. Dale Despain, ·P ro Se,
Provo, Utah,
for Respondent.

Before:

Ju4qe cetti

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et .§ruL.., the "Act" . The
Secretary of Labor on behalf of the Mine Safety and Health Administration (MSHA), charges Intermountain Sand Company (Intermountain) with three mandatory safety standards set forth in
30 C.F.R. Part 56 and seeks civil penalties for those violations.
The primary issues raised by the parties at the hearing are
jurisdiction, whether Intermountain violated the cited safety
standards and , if so, the appropriate penalty to be assessed.
I

Jurisdiction
The Respondent, Intermountain Sand Company, is a small specialty sand company with a small open pit mine that extracts sand
and qravel from the ground~ The mine employs a foreman and two
1333

or three other ...miners-. . It has a crusher, a screen, three
conveyor belts and a dryer. It produces primarily traction sand
for railroads and a special sand that is used in the production
of a spray product used to spray the interior surface of tunnels
for fire protection. This product is sent .to Yuma, Arizona,
Nevada atomic test site, Wyoming, Idaho and Colorado.
(Tr . 46) .
The Mine Act Section 4 (30 u.s.c. § 803g) states:
"Each · coal or other mine, the products of
which enter commerce, or the operations or
products of which affect commerce, and each
operator of such mine and every miner in such
mine, shall be subject to the provisions of
this Act."
..
Congress by its use of the phrase "which affect commerce" in
Section 4 of the Act, indicates its intent to exercise the full
reach of its constitutional authority under the commerce clause.
See Brennan v. OSHRC, 492 F.2d 1027 (2nd cir. 1974)); u.s. v. Dye
Construction co., 510 F . 2d (10th Cir. 1975); Polish National
Alliance v. NLRB, 322 U.S. 643 (1944) Godwin v. OSHRC, F.2d 1013
(9th Cir. 1976).

The Mine Act, as well as the Act's legislative history,
reflect a congressional determination that all mining-related
accident~ and diseases unduly burden and impede interstate
commerce. Section 2(f) of the Mine Act, 30 u.s.c.
§ 801(f), states:
[T]he disruption of production and the loss
of income to operators and miners as a result
of coal or other mine accidents or occupationally caused diseases unduly impedes and
burdens commerce.
The. Mine Act defines the Act's scope as including "the
Nation's coal or other mines," with no express limitation or
exception. 30 u.s.c. §§ 801(c), (d), and (g). The legislative
history of the Federal c~al Mine Health and Safety Act of 1969,
the statute from which the Mine Act derived, also indicates that
Congress intended to regulate mining "to the maximum extent f easible through legislation." s. Rep . No. 1055, 89th Cong., 2d
Sess. 1 (1966). Thus, in enacting the Mine Act, congress chose
to regulate mines as a class. See Marshall v . Kraynack, 604 F . 2d
231, 232 (3rd Cir. 1979), cert. denied, 444 U.S. 1014 (1980)
(applying Coal Act to family-owned mining operation).
Congressional intent to counter the adverse effect of mining
accidents and injuries by regulating· the mining industry as a
whole has been recognized by the supreme court. In Donovan v .
Dewey, 452 U.S. 594, 602 (1982), a case involving a surface
1334

limestone quarry·, · the .. Supreme Court stated that " . • • Congress
was plainly aware that the mining industry is among the most
hazardous in the country and that the poor health and safety
record of this industry has significant deleterious effects on
interstate commerce." Congress's finding was "based on extensive
evidence showing that the mining industry was among the most
hazardous of the Nation's industries. (See s . Rep. NO . 95-181
(1977); H.R. Rep. No . 95-312 (1977)." Id. at 602 n. 7.
It is well ·established that when Congress regulates a class
of activity under the commerce Clause, all members of the class
are covered and when Congress has determined that an activity
affects interstate commerce, "the courts need inquire only whether the finding is rational." Hodel v. Virginia surface Mining
and Reel. Assn., 452 U.S. 264, 277 (1981). As stated in Donovan
v. Dewey, supra, 452 U.S. at 602 .n. 7, the Supreme Court .properly
deferred to the express findings of Congress, set out in the Mine
Act itself and based on extensive evidence, about the effects of
mining-related injuries and diseases on interstate commerce.
30 u.s.c. s 301(f).
A congressional finding that an activity affects interstate
commerce is presumed to be valid, and a reviewing court will
invalidate such legislation "only if it is clear that there is no
rational basis for a congressional finding that the regulated
activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the
asserted ends." Hodel v. Indiana, 452 U.S. 314, 323-324 (1981).
In the instant case Intermountain has never even attempted to
show a lack of any rational basis for Congress's finding that
mining-related accidents and diseases at all mines burden and
impede interstate commerce. Clearly the legislative history of
the Mine Act indicates that Intermountain's mine is properly the
subject of congressional regulation and its mining activities
fall within the broad scope of jurisdiction contemplated by the
Mine Act.
II

Federal Mine Inspector Ronald Pennington testified that he
and Inspector Jim Skinner inspected this small open pit sand and
gravel mine. The inspectors observed three violations of applicable mandatory safety standards. The observations made by the
inspectors are set forth in the three citations issued to Respon_dent after the inspection.
Citation No. 2653442
Citation No. 2653442 is a 104(d) s&s citation that charges
Respondent with the failure to provide a handrail on a 20-foot
high work platform in violation of 30 C.F-. R. § 56.11027 .

1335

The ci~ation -reads as follows :
Handrails were not provided on the work
platform near the top of the dryer elevator
building . A ladder leads to this work platform. This platform is approximately 3 feet
X 3 feet in area and it is likely that a
person could easily fall from the platform to
the ground . A serious injury could result
from the fall of approximately 20 feet (6.096
M). A tie-off system for ·this platform was
not in effect and employees use this platform
to service the elevator motor and V-belt
drive.
Inspector Ronald Pennington testified that the 20-foot high,
3-foot square, work platform was used to service two V-belt
drives and a motor that was located just a~ove the work platform.
The inspector testified that there was no fall protection whatsoever and it would be quite easy to fall or inadvertently step off
of this small platform. The 20-foot fall would likely result in
serious injury or death.
The inspector asked the foreman at the site if they had any
safety lines. None could be produced and none were observed .
Nothing was provided to enable an employee working on the service
platform to tie off .
The inspector testified that he found the violation to be
significant and substantial. He stated that the 20-foot high
platform was so small that it was reasonably likely that an
employee working on it without a handrail or other fall protection could easily fall off it and would sustain serious injury.
I credit the testimony of Inspector Pennington. I agree
with his opinion and conclusion that the violation was signi.f icant and substantial. The preponderance of evidence presented
established all four elements of the Mathies formula which is
discussed in greater detail below under the heading "Significant
and Substantial . "
Citation No . 2653443
This 104(a) citation charges the operator with failure to
·guard moving machine parts to protect persons from contacting the
V-belt and pulley drives as mandated by 30 C.F.R. S 56.141072.
The citation . describes the violative condition as follows:
The elevator motor and V-belt drive was not
guarded. This motor and drive is located
approximately 4 feet above the work platform

1336

and .. can · b-e ·Cjontacted when standing on the
platform. This motor is located· in a low
traffic area and it is unlikely that an
accident would happen.
The inspector testified that the electric motor located 4
feet above the work platform had a V-belt drive with two pulleys.
There was nothing to protect a person working on the platform
from contacting "the pinch points of the V-belt drive. The injury
could result in permanent disability such as the loss of a
finger.
Mr. Despain, owner and operator of the mine, testified that
during prior inspections no inspector had ever issued a citation
for failure to guard the V-belt drive~ at that location •
...

I credit the testimony of Inspector Pennington and based on
his testimony find that there was a failure to guard a person
working on the platform from contacting the pinch points .of the
V-belt pulley drive. The violation of 30 C.F.R. S 56 . 141072 was
established.
I agree with the inspector's conclusion that due to the
location of the hazard, injury was unlikely and that the inspector properly found ·this violation to be non S&S.
Citation No. 2653481
This 104(a) citation charges Intermountain sand Company with
a S&S violation of 30 c.F.R. § 56.14107(a) which requires the
guarding of moving machine parts. The citation describes the
violative condition observed by the inspector during his inspection as follows:
The main V-belt drive for the Allis
Chalmers screen plant was _not adequately
guarded. The pinch points of the V•belt
drive could be contacted if a person would
slip or fall while walking down the adjacent
walkway. This walkway is on a steep decline
and it is likely t~at a person could fall
into moving machine parts.
It is undisputed that the walkway adjacent to the pinch
. points of the V-belt drive had a steep decline of approximately
15 or 20 degrees.
The inspector, based upon the conditions he observed, was
concerned that a person could slip or trip and fall as he walked
down the steep decline of the walkway and thus make contact with
the "big V-belts and the wheels." The pinch points could be
contacted from the top. on making contact, a person would likely
L337

sustain an .MtJUry that · would result in permanent disability such
as a loss of a hand or arm.
Mr. Despain, while admitting he is not "regularly" at the
mine, contended that employees do not approach or service the
machiriery while it is running.
XII
No collateral Estoppal

Mr. Despain testified in general terms that on numerous
prior MSHA inspections of the mine no citations were issued for
the violative conditions cited in this case • . After due consideration I conclude that the claim of lack of prior citations is
no defense in this proce·eding. The claimed lack of prior citations could be due to many possible reasons, none of which is a
defense in this proceeding. They include such things as failure
to see or to observe, regulatory error, inter.pretation error, and
others that could come to mind . Inspectors being human, at times
do make errors of observation and judgment much like anyone else.
MSHA is not estopped from the issuance of a citation because of
an operator's reliance on the fact that no citation was issued on
earlier inspections. The doctrine of collateral estoppel is not
applicable and cannot be invoked under the facts of this case to
deny miners protection of the Mine Act.
IV
Significant and Substantial Violations

The inspector in issuing Citation No. 2653442 found that the
failure to have a railing on the 20-foot high 3 foot square
service platform was a significant and substantial violation.
The inspector also made such a finding in Citation No. 2653442
for failure to adequately guard against employee contact with
moving machine parts while walking down the steep decline of the
adjacent walkway.
A "significant and substantial" violation is described in
Section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F . R. S 814(d) (1). A violation is properly designated significant and substantial "if, based upon the particular facts sur·rounding 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 ·oivision, National Gypsum
Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained:
13 38

~n order ·-to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of Labor must prove: (1) the underlying
violation of a mandatory safety standard; (2)
a discrete safety hazard -- that is, a measure of danger to safety -- contributed to by
the violation; (3) a reasonable likelihood
that the hazard contributed to will result in
an injuryi 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:
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). {Emphasis in
original) .
Any determination of the significant nature of a violation
must be made in the context of continued normal mining operations. National Gypsum, supra, at 329. Halfway, Inc., 8 FMSHRC
8, 12 {January 1986); U.S. Steel Mining co., 7 FMSHRC supra, at
1130 {August 1985).
With respect to the two citations in question, ·the first two
elements of the Mathies formula are clearly established. I also
find in the context of continuing normal mining operations that
the preponderance of the credible evidence established the third
and fourth elements of the Mathies formula. These findings are
based upon the credible testimony of Inspector Pennington summarized above under the heading II Citation Nos. 2653442 and
2653448.
Since the Secretary est~blished all four elements of the
Mathies formula, I find, as did the inspector, that two violations in question are properly de~ignate "significant and
substantial."

v
Civil Penalty Assessment
In accordance with the mandate of Section llO{c) of the Mine
Act I have considered the statutory criteria in determining the
appropriate penalties to asse~s . Respondent is a small operator .
1339

Respondent'&-hi&tory-of prior violations is good with only three
violations of regulatory safety standards during the two-year
period immediately prior to the issuance of the citations in
question. The operator was negligent in permitting the violative
conditions to exist. The gravity of the two S&S violations is
high and there existed a reasonable likelihood that the hazard
contributed to would result in an injury of a reasonable serious
nature. No evidence was presented to show the MSHA proposed
penalties would-have an adverse effect on the operator's ability
to continue in ~usiness and it is presumed there would be no
significant adverse effect. With respect to good faith it is
noted that the violations were abated without the imposition of
failure to abate penalties but that full abatement was not
achieved until after the issuance of a 104(b) order for each of
the violations .
Having considered the six statutory criteria in Section
110(i) of the Act, I find the appropriate penalty for each of the
violations is the MSHA proposed penalty. Accordingly, I assess
the following civil penalties.
Citation No. 2653442 - $292 . 00
Citation No. 2653443 - $195.00
Citation No. 2653448 - $240.00
ORDER

All three citations, Nos. 2653442, 2653443 and 2653448 are
AFPZRMBD as written and it is ORDERED that the Respondent,
Intermountain Sand Company, PAY the assessed civil penalties in

the sum of $727.00 to the Secretary of Labor within 30 days of
this decision. On receipt of payment, this case is DZSKZSSBD.

Au st F. Cetti
Adl'ilinistrative Law Judge
Distribution:
Robert J. Murphy, Esq., Office of the Solicitor, u.s. Department
of Labor, 1999 Broadway, suite 1600, Denver, co 80202-5716
(Certified Mail)
Mr. K. Dale Despain, INTERMOUNTAIN SAND COMPANY, 1185 East 2080

North, Provo, · UT 84604

(Certified Mail)

sh

1340

FEDBR:Ur-·KXNB ·-sAFETY. AND HEALTH REVJ:BW COMMJ:SSJ:ON
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

.JUN 2 9 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS~RATION (MSHA),
Petitioner

v.
KAMTECH INCORPORATED,
Respondent

..
.

.
.
.

CIVIL PENALTY PROCEEDING
Docket No. WEST 93-360-M
A.C. No. 48-00639-05502 HUR
Wyoming Soda Ash

.
:
DBCJ:SJ:ON

Before:

Judqe cetti

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. S 801 et seq. The Secretary seeks
a $50 penalty from Kamtech Incorporated (Kamtech) for an alleged
violation of 30 C.F.R. § 57.4600(a)(2).
In pertinent part the cited safety standard provides:
(a)

When welding, cutting, soldering, thawing, or
bending --- (2) With an open flame in an area
where no electrical hazard exists, a multipurpose
dry-chemical fire extinguisher or equivalent fire
extinguisher or equivalent fire extinguisher equipment for the class of fire hazard . present
shall be at the worksite.

Kamtech filed a timely answer and response to the Prehearing
Order contesting the alleged violation.
On April 20, 1994, Kamtech filed a Motion for Summary
Decision along with a (1) Brief in Support of the Motion; (2)
Affidavit of M. Hunt; and (3) Affidavit of R. O'Steen.
Kamtech states that it received the citation while performing construction work at T.G. Soda Ash's mine located in Grainger, Sweetwater County, Wyoming, and asserts that the undisputed
material facts demonstrate that Kamtech is entitled to summary
decision in its favor as a matter of law. It is Kamtech's position that there was no violative condition nor exposure to an
employee of a violative condition.
1341

Kamtech. f~the~ - states that the material facts to which
there is no genuine issue are as follows: Kamtech, Inc . is an industrial construction company
that performs construction work throughout the United
states . on the date of the alleged violation, Kamtech
was performing construction work for T. G. Soda Ash,
Inc. at its mine and facility located in Grainger,
Sweetwater County, Wyoming. (Affi d., of R. O'Steen, f
3, 4)- Although most of Kamtech's employees were
engaged in the construction of the package boiler
outside of the T.G. Soda Ash facility, a few employees
were constructing a pipe system of the T.G . Soda Ash
facility near the boiler area. (O'Steen · Affd., f 4).
On September 16, 1992, while conducting an
inspection of the entire mine facility, an MSHA
Inspector, Thomas L. Markve, approached a Kamtech
employee who was working on a catwalk in the boiler
area. (Affid. of M. Hunt, f 4, 5). The employee was
a pipewelder. (Hunt Affid . , f 5; O'Steen Affid., I
5). Like other pipewelders in the boiler area, Mr.
Lish was using a process known as shielded metal arc
welding (SMAW), which is a form of electrical welding
used to fuse and cut pieces of pipe. Id. At this
time, Lish'e welding rod had not been "struck" to
produce an electric arc, which is the heat source for
the weld. (Hunt Affid., t 5). The inspector
approached the employee and asked him the location of
his fire extin~ieher. (Hunt Affid., t 5; o•steen
Affid., t 7).
Mr. Lish responded by turning around
to pick up hie fire extinguisher and found it to be
missing . (O'Steen Affid., t 7). At that time, Mr.
Lish's helper returned to the area and explained that
he had picked up the fire extinguisher just prior to
the inspector's arrival and placed it in the gang box
because he thought they were finished welding . Id.
Mr . Lish did not begin welding until after the helper
returned with the fire . extinguisher. Id.
Shortly thereafter, Inspector Markve met with Rick
O'Steen, Kamtech's Quality Assurance/Quality control
Safety Inspector, to conduct an inspection 9f the
package boiler construction site. ~ at t 6 . At
this time, the inspector informed Mr. O'Steen that he
was issuing a citation to Kamtech because Lish did not
have a fire extinguisher in his immediate work area •
.IQ..:_ After Mr. O'Steen questioned the inspector as to
the particulars of the citation, Inspector Markve
explained that he was issuing the citation because he
thought (but did not observe) that Lish had been

1

The conversation related to O'Steen by Inspector Markve does not
constitute hearsay because, as an agent for the Secretary of Labor's office, hie
statements are admissions. Consolidation Coal Company v . Sec. of Labor, No. WEVA
81-222-R, 81-361, (FMSHRC February 8, 1992); Secretary of Labor v. stanbeet,
!!!£:.., 11 BNA OSHC 1222 (OSHRC No. 76-4355 1983) (decision under OSHA); McWilliams
Forge Co., Inc., 8 BNA OSHC 1792 (OHSRCJ No . 79-228 1980) (decision under OSHA) .

1342

weld·ing; ··or · was · going to begin welding again.
(O'Steen Affid., t 6, 7; Hunt Affid., I 5).

Kamtech asserts these facts do not establish a violation of
the cited standard under MSHA. Kamtech contends that it did not
violate the cited standard because: (1) the welding process used
did not involve an open flame; (2) the Kamtech employee allegedly
exposed to the hazard was not engaged in welding, cutting,
soldering, thawing, or bending without having a fire extinguisher
present; and (3) · because suitable extinguishing equipment was
present at the worksite.
Kamtech states the type of welding process being used was
shielded metal arc welding (SMAW), which is a form of electrical
welding.
(Hunt Affidavit, ! 5). Electrical welding does not
produce an open flame and, therefore, is not subject to 30 c.F.R.
§ 57.4600(a) (2).
See Secretary of Labor v. LeBlanc's Concrete &
Mortar Sand company, No. CENT 88-106-M, (FMSHRC April 24, 1989).
Kamtech further contends that even if the cited standard
applies, Kamtech did not violate it because its employee was not
engaged in welding when the fire extinguisher was removed from
the immediate work area. Just prior to the MSHA inspector
arriving at the allege~ly exposed employee's work area, the
employee (Lish) stopped welding and the employee's helper removed
the fire extinguisher they had been using, mistakenly thinking

that they had finished welding .

Lish did not begin welding again

until after the helper returned with 't he fire extinguisher.
Inspector Markve never observed Kamtech employee Lish welding
without a fire extinguisher. Instead, he assumed that the
employee was going to begin welding again and, therefore, concluded that a citation was appropriate.
In order to establish a prima facie case of a violation,
Kamtech asserts the Secretary must show that a violative
condition existed and that an employee was exposed. E.g.,
Secretary of Labor y. cathedral Bluffs Shell Oil company, No.
WEST 81-186-M, (FMSHRC August 29, 1984); Anning-Johnson Co. 4
OSHC 1193 (Rev. Comm'n 1976) (decision under OSHA). In this
case, neither is established since Inspector Markve intervened
before actual welding operations had recommenced. Kamtech points
out that Lish's welding rod had not been "struck" to produce an
electrical arc, which is the heat source for the weld. Speculation that an employee may commit a violation will not satisfy the
Secretary's burden of proof. Id.; Secretary of Labor v. Patch
. coal Company, No. CENT 88-2, (FMSHRC June 24, 1988). E.g . ,
Secretary of Labor v. Southeastern Paper Products Export. Inc.,
16 BNA OSHC 1276 (OSHRJC April 23, 1993) (decision under OSHA).
An "anticipatory" violation would be inappropriate in this case
because the facts indicate that had the inspector not intervened,
the welder's helper would have retrieved the fire extinguisher or

1 343

stopped the·--welder ·once he realized that the welder intended to
weld again.
In addition, Kamtech contends it did not violate the cited
standard because proper fire extinguishing equipment was present
"at the worksite." As discussed above, when it was discovered
that the Welder had not COJllpleted Welding and was going to begin
welding, the helper retrieved the fire extinguisher from the gang
box, which is portable and was used to store tools. The term
"worksite" is not defined by the regulations. Therefore, Kamtech
contends a reasonable employer would interpret such a term in
accordance with its ordinary meaning. The term "worksite," in
its ordinary meaning, would certainly include a nearby gang box
which was readily accessible. See Secretary of Labor v.
LeBlanc's Concrete & Mortar Sand Co., (noting fire extinguisher
required at work location, which was described as a 100' -·X 200'
shop); secretary of Labor v. Western Steel Corporation, No. WEST
81-132-RM, (FMSHRC March 29, 1983) (term "worksite" used in
·
reference to large work area); Westwood Energy Properties · v.
Secretary of Labor, No. PENN 88-42-R, 3 FMSHRC (January 1989).
No objection has been filed to the "Statement of Material
Facts As to Which There Is No Genuine Issue" nor to the Motion
for summary Decision.
CONCLUSION

Based upon the "Statement of Material Facts As to Which
There Is No Genuine Issue," including the affidavits of M. Hunt
and R. O'Steen, I find that in this case there was no violation
of the cited safety standard 30 C.F.R. § 57.4600(a) (2). ·
. ORDER

Citation No. 3908981 and its related proposed penalty are
VACATED and this case is DISMISSED.

~~4U
Au st F. Cetti
Administrative Law Judge

1344

Distribution.:..

-· ·· -· - · ·

Tam.bra Leonard, Esq., Office of the Solicitor, U. S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Dion Y. Kohler, Esq., OGLETREE, DEAKINS, NASH, SMOAK & STEWART,
3800 One Atlantic Center, 1201 w. Peachtree Street, N.W . ,
Atlanta, GA 30309 (Certified Mail)

sh

1345

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

JUN 3 o1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA},
Petitioner

v.

BEECH FORK PROCESSING, INC.,
Respondent

. CIVIL PENALTY PROCEEDINGS
.
Docket No. KENT 93-659
.. A.
C. No. 15-16162-03578
.
... Docket No. KENT 93-668
A. C. No. 15-16162-03579
Docket No. KENT 93-669
A. C. No. 15-16162-03580
Docket No: KENT 93-699
A. C. ~o. 15-16162-03581

.
: Docket No. KENT 93-709
:
:

A. C. No. 15-16162-03582

:
:

Docket No. KENT 93-780
A. C. No. 15-16162-03583

.
: Docket No. KENT 93-781

. A. C. No. 15-16162-03584
. Docket No. KENT 93-903

A. C. No. 15-16162-03586

Docket No. KENT 93-904
.. A.
C. No. 15-16162-03587
Docket° No. KENT 93-992
. A.
C. No. 15-16162-03588
Mine No. 1
DECISION

Appearances:

MaryBeth Bernui, Esq., Office of the Solicitor, U.S.
Department of Labor, Nashville, Tennessee for
Petitioner;
Ted McGinnis, Mine superintendent, Beech Fork
Processing, Inc. , -L ovely, Kentucky for Respondent.

Before:

Judge Hodgdon

1346

These oases are -before me on petitions for assessment of
civil penalties filed by the Secretary of Labor against Beech
Fork Processing, Inc. pursuant ·to Sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. §§ 815 and
820. The petitions allege 40 violations of the Secretary's
mandatory health and safety standards. For the reasons set forth
below, I dismiss one citation, vacate and dismiss one citation
and one order, modify three citations, find that Beech Fork
committed the remaining violations as alleged and assess total
penalties of $Si,211 . oo .
·
A hearing was held in these cases on February 8 and 9, 1994,
in Paintsville, Kentucky. Mine Safety and Health Administration
(MSHA) Inspector Kellis Fields testified for the Secretary. Mr.
Ted McGinnis, Superintendent of Beech Fork's Mine No. 1,
testified on behalf of the Respondent. The parties have also
filed post hearing briefs which I have considered in my
disposition of these cases.
In his brief, the Secretary contends Beech Fork that
committed all of the violations as alleged, including the level
of gravity and degree of negligence. On the other hand, the
Respondent admits that most of the violations occurred, but
maintains that they do not rise to the level of being
"significant and substantial" or result from "unwarrantable
failures." Therefore, Beech Fork argues, the violations do not
deserve the penalties proposed by the Secretary.
The cases involve ten dockets, 40 citations and orders and,
at least, 15 different inspections or dates that citations or
orders were issued. Therefore, in an attempt to discuss the
violations in some sort of orderly fashion, the infractions will
be addressed by docket.
Docket No. KENT 93-659
This docket involves Citation No . 3816646 -and Order
No. 3816647, both issued under Section 104(d)(l) of the Act,
30 u.s . c. § 814(d) (1), 1 and both alleging a violation of Beech
Section 104(d) (1) provides:
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
(continued on next page)

1347

Fork's Mine ·ventilat16ri Plan pursuant to Section 75.370(a) (1) of
the Secretary's Regulations, 30 C.F.R. § 75.370(a) (1). Inspector
Fields testified that he inspected Beech Fork's Mine No. 1 on
December 16, 1992, and issued the citation and order, which he
later modified, at that time.
Inspector Fields stated that on entering the mine, he
observed coal coming off of the conveyor belt for the 003 working
section and when he arrived at the face of the No . 4 entry he saw
a continuous mining machine loading coal from the face into a
shuttle car. He related that no line curtain2 was installed in
the entry and that when he attempted . to take a reading of the
amount of air moving at the face, he was unable to get a reading.
Inspector Fields said that he had measured the depth of the
cut at approximately 52 feet. He further ptated that the-mine
foreman was present while this occurred · and admitted to him that
a line curtain was supposed be installed when coal is being
mined, cut or loaded and that the velocity 9f air at the face was
supposed to be a minimum of 5200 cubic feet per minute (cfm).
Section 75.370(a) (1) requires, in pertinent part, that
"(t]he operator shall develop and follow a ventilation plan
approved by the district manager." Beech Fork's Methane and Dust
Control Plan, which was tentatively approved on February 13,
1992, requires that the minimum air quantity "at working faces,
where coal is cut, mined or loaded" shall be "5200 cfm" and that
the "[m]aximum distance for line curtain to be maintained from
the point of deepest penetration of the working face where coal
cause and effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused by an
unwarrantable failure of such operator to comply with such
mandatory health or safety standards, he shall include such·
finding in any citation given to the operator under this Act.
If, during the same inspection or any subsequent inspection of
such mine within 90 days after the issuance .of such citation,
an authorized representative of the Secretary finds another
violation of any mandatory health or safety standard and finds
such violation to be also caused by an unwarrantable failure
of such operator to so comply, he shall forthwith issue an
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.
2

A "curtain" is "used to deflect the air from the entries
into the working rooms and (is] used to hold the air along the
faces." A Dictionary of Mining, Mineral, and Related Terms 292
(1968).

1 3 48

is being cut;- ··mined--or- loaded shall be 20 Ft . "

(Gt. Ex . 2, p . 3.)

Citation No. 3816646 was for the failure to install a line
curtain and Order No. 3816647 was for the lack of air at the
face.
(Gt. Exs. l and 3 . ) Clearly Beech Fork did not comply
with the requirements of its dust control plan and, therefore,
violated Section 73.370(a) (1) of the Regulations.
Both violations were found by the Inspector to be
"significant and - substantial." A "significant and substantial"
(S&S} violation ~s described in Section 104(d) (1) of the Act as a
violation "of such nature as could significantly and
substantially contribute to the cause and effect of a coal or
other mine safety or health hazard." A violation is properly
designated S&S "if, based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that -the
hazard contributed to will result in an injury or illness of a
reasonably serious nature . " Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984}, the
Commission explained:
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
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 Companv. Inc., 7 FMSHRC 1125,
1129 (August 1985), 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 caus~ and effect of a hazard that
must be significant and su•stantial. U.S . Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U. S.

1349

steel-Mining--company, Inc., 6 FMSHRC 1573, 1574-75 (July
1984) •

This evaluation is made in terms of "continued normal mining
operations." U.S. Steel Mining Company, Inc., 6 FMSHRC 1573,
1574 (July 1984) . The question of whether a particular violation
is significant and substantial must be based on the particular
facts surrounding the violation . Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 1007
(December 1987).
Inspector Fields testified that he believed these violations
to be S&S because without ventilating the area where mining was
taking place methane could be encountered which could result in
an explosion and fire and excessive coal dust would be present
which could lead to pneumoconiosis. The Respondent argues that
no methane had ever been detected in this mine, that the scrubber
on the continuous miner was working while coal was being cut and
that the miner had only been operating a short time because it
was being tested to determine if repairs performed on it were
sufficient.
I find that the Secretary has the stronger argument in this
instance. The fact that methane had never been encountered in
the mine does not guarantee that it will never be present. The
scrubber on the continuous miner does not sufficiently remove
coal dust from the environment, by itself, to make the area
conform to the dust standards and certainly would have no affect
on methane. Finally, even if the continuous miner was only being
tested, those present were subjected to the possible dangers of
no ventilation while it was being tested. For these reasons, I
conclude that the violations were "significant and substantial."
Inspector Fields also found these violations to have
resulted from an "unwarrantable failure" on the part of Beech
Fork because the foreman was present and admitted that he knew
that a line current had to be installed and that 5200 cfm of air
was required at the face. The Respondent implies that this was
not done because the repaired continuous miner was only being
tested; the implication being that the line curtain would have
been installed and the face properly ventilated before full
production began.
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 1987); Youghiogheny &
Ohio coal Co., 9 FMSHRC 2007, 2010 (December 1987).
In Emery Mining, supra at 2001, the Commission stated that:

1350

"Unwarrantable.n ··i s· defined as "not justifiable" or
"inexcusable." "Failure" is defined as "neglect of an
assigned, expected, or appropriate action . " Webster ' s
Third New International Dictionary (unabridged} 2514,
814 {1971) (Webster ' s). Comparatively, negligence is
the failure to use such care as a reasonably prudent
and careful person would use and is characterized by
"inadvertence," "thoughtlessness," and "inattention."
Black's Law-Dictionary 930-31 (5th ed . 1979}. Conduct
that is not · justifiable and inexcusable is the result
of more than inadvertence, thoughtlessness or
inattention.
Beech Fork's position is undercut by the fact that enough
coal was being conveyed on the belt line to lead Inspector Fields
to believe that full production was already in progress. More
significantly, the Beech Fork employees had to go over two entry
ways, to the No. 6 entry, to find a curtain to install. This
indicates that the foreman, knowing that a line curtain was
required, was not prepared to install it. Therefore, I conclude
that the violations resulted from Beech Fork's "unwarrantable
failure."

\

The Secretary has proposed a penalty of $4,000.00 for the
failure to install the line curtain and $6,000 . 00 for the lack of
air quantity at the face . The Respondent argues that these are
essentially one violation and, therefore, the second violation
amounts to over charging .
(Resp. Br. 4.) While it is true that
two separate sections of Beechfork's dust control plan are cited
as having been violated, as Inspector Fields noted in Order No.
3816647, "no air was provided due to no line curtain installed •
• . . " (Gt. Ex. 3.) It stands to reason that if the line
curtain is what guides the air to the face, if there is no line
curtain, there will be no air at the face.
I agree with the Respondent that these two- violations are
multiplicious, that is, they are multiple offenses arising in the
course of a single act or, in this case, failure to act. If the
Act did not require that a civil penalty be assessed for each
violation, 30 u.s.c . § 820(a), I would assess a single penalty
for both violations . Cf. Albernaz v. United States, 450 U.S.
333, 337-38, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981}; Whalen v.
united states, 445 u . s. 684, 100 s.ct. 1432, 63 L.Ed.2d 715
(1980); Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284,
43 L.Ed.2d 61 6 (1975); Blockburger v. United States, 284 U.S.
299, s2 s.ct. 180, 76 L.Ed. 306 (1932).
Since I cannot assess a single penalty for both violations,
I will consider the fact that the violations are multiplicious in
assessing penalties for each. Taking into consideration the
factors set out in Section llO(i} of the Act, 30 u.s . c. § 820(i),

1351

I assess a c-.i:vi:l···penaity of $2,000.00 for Citation No . 3816647
and $2,000.00 for Order No. 3816648.
Docket No. KENT 93-668

on January 25, 1993, Inspector Fields issued two S&S
citations to Beechfork. Citation No. 3816654 was for a violation
of Section 75.380(d), 30 C.F.R. § 75.380(d), because the intake
escapeway heading to the 003 section did not have a walkway or
stairs provided . to get over two overcasts. 3 (Gt. Ex. 4.)
·
Citation No. 3816658 alleged a violation of Section 75.333(b) (1),
30 C. F.R. § 75.333(b) (1), because permanent stoppings used to
separate the intake airway from the return airway were not being
maintained up to and including the third open crosscut outby the
face area between the No. 2 and No . 3 entries. (Gt. Ex. 5.)
..

Inspector Fields testified that the overcasts were 20 feet
wide, that is, the width of the escapeway, and five or six feet
high. He described that the only way to get over the overcast
was to "jump up and try to get on top of the overcast." (Trl.
46.) 4

Section 75.380(d)(6), 30 C.F.R. § 75.380(d)(6), requires
escapeways to be "[p]rovided with ladders, stairways, ramps .or
similar facilities where the escapeways cross over obstructions."
In its brief, the Respondent admits that it violated this
regulation. (Resp. Br. 16.) I agree and so find.
The inspector testified tnat he considered this violation to
be "significant and substantial" because in trying to jump over
the overcast someone could fall and break his arm or leg, or
injure his back. In addition, he pointed out that in an
emergency miners would be hindered in getting out of the mine
using the escapeway and that it would make it very difficult to
bring someone ·through the escapeway on a stretcher . The
Respondent argues that the violation was not S&S because there
were materials nearby from which someone could-fashion .some steps
if he needed to.
Applying the Mathies test, I find that there was a
reasonable likelihood that the lack of a way over the overcast
would result in a reasonably serious injury. This would be
3

An overcast is "[a)n enclosed airway to permit one air
current to pass over another one without interruption. "
A
-Dictionary of Mining, Mineral, and Related Terms 780 (1968) .
4

The hearing was held on February 8 and 9 and there is a
separate transcript, beginning with page one, for each day .
Accordingly, the transcript for February 8 will be cited as "Trl."
and the transcript for February 9 will be cited as "Tr2."

1352

particularly- ·1ik~ly- when

the escapeway was being used in an
emergency as it was intended to be used . Accordingly, I conclude
that the violation was "significant and substantial."
Turning to the second citation, Inspector Fields testified
that while inspecting the Elk View section of the mine he found
that permanent stoppings between the No . 2 and No . 3 entries had
only been installed up to and including the fourth open crosscut
outby the face. ~ There was no stopping in the third crosscut.
Section 75.333(b) (1) provides, in pertinent part, that:
(b) Permanent stoppings or other permanent ventilation
control devices . • . shall be built and maintained -(1) Between intake and return air courses • • . •
Unless otherwise approved in the ventilation plan,
these stoppings or controls shall be maintained to and
including the third connecting crosscut outby the
working face.
Beech Fork admits this violation. (Resp. Br. 4.) Accordingly, I
conclude that Beech Fork violated the section as alleged.
Inspector Fields found this violation to be "significant and
substantial" because the missing stopping permitted the intake
air to cross the entry and enter the return before reaching the
face. As a result, he opined that "it's reasonably likely
somebody in there (the face) can encounter, when they're in
production and mining coal, they can always encounter any
poisonous or noxious gases or methane or coal dust." (Trl. 53.)
Although Beech Fork incorporates this violation in a general
statement in its brief concerning violations not being s&s, at
the hearing Mr. McGinnis agreed that the violation was S&S.
(Tr2. 152-53.} Accordingly, I find that the violation was
"significant and substantial."
In a continuation of this inspection, Inspector Fields
issued Citation Nos. 4029824, 4029826 and 4029828 on February 10,
1993 . The first of these involved a defective, dry chemical fire
fighting system on a shuttle car in violation of Section 75.11003 of the Regulations, 30 C.F.R. § 75 . 1100-3. (Gt. Ex. 6.) The
other two involved trailing cables from a continuous miner and a
shuttle car that Inspector Fields found to be inadequately
insulated in violation of Section 75.517, · 30 C.F.R. S 75 . 517.
(Gt. Exs. 7 and 8.)
With regard to the firefighting system, Fields testified
that he found that a hose was broken off of the chemical tank
rendering the system inoperative since in the event of a fire no
chemicals would be sprayed on the fire. He believed that this

1 353

violation wa·s S&S -because of the possibilities of smoke
inhalation or burning if the machine caught on fire and the fire
could not be extinguished because the system did not work.
Beech Fork argues that this violation was not "significant
and substantial" because the shuttle .car operator would not have
to travel more than 300 feet to get into fresh air in the event
of a fire.
In addition, the Respondent maintains that a
pressured wate~ hose would never be more than 300 feet from the
shuttle car anywhere in the mine and that the shuttle car has
firefighting systems on both sides, so that at least one-half. of
the car would be covered in the event of a fire.
Section 75.1100-3 requires that "[a)ll firefighting
equipment shall be maintained in a usable and operative
condition." Clearly, the broken hose violated this regulation .
Further, applying the Mathies test, I find that the violation was
"significant and substantial."
Looking next at the cable violations, . the inspector
testified that the cable to the continuous miner had been
spliced, but that when it was resealed the seal did not
completely c·o ver the cut in the cable . He stated that part of
the outer jacket of the trailing cable for the shuttle car had
been torn off, exposing the inner leads. Inspector Fields
related that he found these violations to be S&S because the

cables have to be handled by miners to move them from one place
to another, that the section was wet and muddy and that because
of the exposed inner leads, which carried 575 volts for the miner
and 440 volts for the shuttle car, a person could be
electrocuted.
The Respondent contends that there was no violation in
either of these cases because the inner leads were themselves
insulated sufficiently to prevent electrocution .
In the
Respondent's opinion, the outer jacket serves a dual purpose, to
resist nicks, cuts and scrapes, as well as for insulation.
Therefore, any openings in the outer jacket do not necessarily
mean that the insulation is not sufficient. Furthermore, Beech
Fork argues, if the insulation on the inner leads were
inadequate, a circuit breaker would be tripped.
(Resp. Br. 6 . )
Section 75 . 517 provides that "(p)ower wires and cables • . .
shall be insulated adequately and fully protected." I find that
both the inner lead insulation and the outer jacket must be
intact to meet this standard. Therefore, I conclude that Beech
Fork violated the regulation in both of these instances. I
further find · that these violations were "significant and
substantial." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573 (July
1984).

1354

Inspect-or -Fi€lus- issued six more citations to the Respondent
on February 16, 1993. Citation No. 4027041 alleges a violation
of Section 75.1102 of the Regulations, 30 C.F.R. § 75.1102,
because the slippage switch for the No. 3-A belt conveyor drive
was in.o perative . (Gt. Ex. 9.) Citations No. 4027042 and 4029840
are for violations of -Section 75.1722(b), 30 C. F.R. § 75.1722(b),
due to inadequate guarding of belt conveyor drives . 5 (Gt. Exs .
10 and 15.) Citations No. 4027043 and 4029839 are for
accumulations of float coal dust in belt control boxes in
violation of Section 75.400, 30 C.F.R. § 75.400.
(Gt. Exs. 12
and 13.) citation No. 4027045 sets out a violation of Section
75.604(a), 30 C.F.R. § 75.604(a}, because a permanent splice in a
trailing cable was not made mechanically strong.
(Gt . Ex . 14 . )
Beech Fork admits that the violations concerning the
accumulations of float coal dust and the slippage switch __
occurred.
(Resp. Br. 4 and 10.) However, it contests the
remaining citations and Inspector Fields' S&S determinations on
all of the citations.
Turning first to the guarding on the conveyor belt drives,
the inspector testified that the guard to the 3-A belt conveyor
drive was bent over and was not secured and that there was an
opening on the sprocket chain housing. He further testified that
the guard to the 2-A belt conveyor drive was also bent over. He
stated that because the guards were bent over, they did not
prevent people reaching in at the pinch point of the drive pulley
and that the opening in the chain housing would permit someone to
place a hand or finger in the sprocket chain. Finally, Inspector
Fields testified that the guards were hel~ in place by telephone
wire which resulted in their bending over when loose coal, coal
dust and mud piled up on them.
In the Respondent's opinion, the guards were properly
secured with wire becaµse the build-up of material on them
required that they be frequently cleaned . Wiring them
facilitated the cleaning, whereas bolting or welding them would
make cleaning much more difficult.
Section 75 . 1722(b) provides that "[g)uards at conveyordrive, conveyor-head, and conveyor-tail pulleys shall extend a
distance sufficient to prevent a person from reaching behind the
guard and becoming caught between the belt and the pulley."
Since the guards could be bent over by the accumulation of
material on a frequent basis, exposing the pinch points of the
pulleys, when secured by wires, I conclude that they were not
s On February 17, 1993, Inspector Fields issued Orders No.
4027047 and 4027048 pursuant to Section 104 (b) of the Act, 30
U.S.C. § 8~4(b), for failure to abate these two violations. (Gt .
Exs. 11 and 16 . )

1355

sufficient .:tP pr.ev:ent ..someone from reaching behind them and
becoming caught. Therefore, I find that the two guards discussed
above violated the regulation.
With respect to the cable splice, Inspector Fields testified
that the splice had been accomplished · by tying .a square knot in
the cable . As a result, he opined that this would produce
greater resistance to the electrical current flowing through the
cable causing the cable to get hot.
Section 75 . 604(a) requires permanent splices in trailing
cables to be "[m]echanically strong with adequate electrical
conductivity and flexibility." Based on the inspector's
testimony, I conclude that Beech Fork violated this regulation.
Inspector Fields found all six of these violations to be
"significant and substantial." With regard to the slippage
switch; he testified that the failure of the switch to work would
mean that the belt could not be stopped when it became fouled,
overloaded or had some other malfunction. · 'He related that if the
belt kept running in such a situation, the resulting friction
could cause smoke or a fire.
The inspector stated that, in addition to the required daily
inspection of the belt lines, spillage from the conveyors
required recurrent shovelling and cleaning in the area of the
pulleys. Thus, there was opportunity for someone to lose a limb
or worse due to the inadequate guards on the belt drives.
The inspector testified with regard to the dust
accumulations that arcing between the various electrical
components inside the junction control boxes could ignite the
accumulated coal dust thereby causing smoke and a fire. He
explained further that electrocution could result from the
defective cable splice in the same manner as that which he
described could happen with the cable insulation violations
above. Supra, at 9.
In addition to its conclusory statement that the violations
are not S&S, Beech Fork argues with respect to the coal dust
accumulations that the damp, wet and muddy conditions in the mine
and the fact that the coal dust is composed, "in substantial
part," of rock dust would make the likelihood of an ignition very
remote.
(Resp. Br. 5.) The Respondent argues concerning the
defective slippage switch that the damp conditions and a fire
suppression system on the belt line make a fire unlikely.
The commission has held that a construction of Section
75.400 "that excludes loose coal that is wet or that allows
accumulations of loose coal mixed with noncombustible materials,
defeats Congress' intent to remove fuel sources from mines and
permits potentially dangerous conditions to exist." Black

1 35 6

Diamond coaL.Mining Company, 7 FMSHRC 1117, 1121 (August 1985).
It has further held that dampness is not determinative of whether
a coal accumulation violation is "significant and substantial" or
not. Utah Power & Light Company, 12 FMSHRC 965, 970 (May 1990).
Accordingly, applying the Mathies standards and crediting the
inspectors testimony, I conclude that these six violations were
"significant and substantial."
Finally, w~th regard to this docket, Inspector Fields issued
two citations on March 5, 1993. The first, Citation No. 4026562,
was for a violation of Section 75.515, 30 c.F.R. § 75.515,
because a cable entering the metal junction for the belt motor at
the No. 7 drive did not have a proper fitting.
(Gt. Ex. 17.)
The second, Citation No. 4027060, alleged a violation of Section
75 . 352, 30 C.F.R. § . 75.352, because the No. 6 belt conveyor line
was not separated from the return air course at Break 80 as about
one-third of the stopping was "crushed out . " (Gt. Ex. 18.)
Beech Fork admits that both of these viol.at.ions occurred,
(Resp. Br. 4 and 10-11), but argues that they were not
"significant and substantial." Therefore, I conclude that Beech
Fqrk violated both of these sections.
Concerning the improper fitting, the inspector testified
that vibration from the belt drive c·o uld cause the cable to rub
against the metal frame eventually exposing the power lines. If
this occurred, anyone touching the metal frame could be
electrocuted. With regard to the crushed stopping, Inspector
Fields explained that return air could go through the hole in the
stopping and mix with the intake air. He stated that if there
was methane in the return air it could be ignited by electrical
equipment in the belt line that was not "permissible . " He
further maintained that, with the stopping out, the air velocity
could increase so that if a fire started, if would spread faster.
Based on Inspector Fields testimony, I conclude that these
two violations were "significant and substantial."
The Secretary has proposed a total penalty for all of the
violations in this docket of $18,637.00 . Taking into
consideration the requirements of Section llO(i) of the Act,
particularly Beech Forks failure to abate the two guard
violati~ns, I conclude that a total penalty of $18,637.00 is
appropriate.
Docket No. KENT 93-669
At the-hearing, the Secretary moved to dismiss Citation No.
4026574 based on the Commission's decision in Keystone Coal .
Keystone Coal Mining Corporation, 16 FMSHRC 6 (January 1994).

The Respondent had no objection to the motion and it was granted.

1357

Accordingly ;... .the .c.itation will be dismissed in the order at the
end of this decision .
The only other citation in this docket was issued by
Inspector Fields on March 10, 1993. It was for a violation of
Section 75.523-3(a), 30 C.F.R . § 75.523-3(a), because the
automatic emergency-parking brakes on the 488-1934 S & S scoop
did not hold the scoop or "lock up" when checked by the
inspector.
(Gt ~ Ex. 23 . )
Inspector Fields testified that automatic emergency-parking
brakes on the scoop were inoperative. The Respondent concedes
that that was the case. (Resp. Br. 12.) Accordingly, I conclude
that Beech Fork violated Section 75.523-3(a).
Inspector Fields testified that he believed this violation
to be S&S because the brakes would not hold the scoop on an
incline and it could, therefore, roll and seriously injure or
kill someone. The Respondent argues that the probability of
· injury from this violation is very remote because the scoop also
had a service brake which could be used to hold it.
I conclude that this violation was "significant and
substantial . " The service brake requires that the operator set
it . The automatic brake does not. I find it reasonably likely
that an operator, not knowing that the automatic brake did not
work, would not set the service brake, assuming that the
automatic brake would hold the scoop .
The Secretary has proposed a penalty of $690.00 for this
violation. Taking into consideration the criteria in Section110 (i), I find this to be an appropriate penalty.
Docket No. KENT 93-699

This docket consists of four citations issued on various
dates during Inspector Fields' inspections. Ci tation No. 4026561
is dated March 5, 1993, and sets out a violation of Section
75.400 because loose coal and float coal dust was allowed to
accumulate under a belt in various locations and in crosscuts
beginning at the air lock inby the No . 6 head and extending inby
to the No. 7 belt drive . (Gt . Ex. 19.) Citation No. 3816644,
dated December 10, 1992, is for a violation of Section 75.202(a),
30 C.F.R. § 75 . 202(a), in that draw rock was sloughing from
around resin roof bolts "in the intake air escapeway from 6
inches up to approximately 24 inches in several locations,
ranging from 1 - 4 bolts up to approximately 20 bolts[,] starting
approximately 600 feet inby the intake portal extending inby
approximately 4,000 (feet] up to [the] seals on the intake."
(Gt • Ex . 2 0 • )

1358

citation NO•• -402-9838, delineates another violation of
Section 75.400 because float coal dust was allowed to accumulate
in the No. 1-A belt control box on February 16, 1993. (Gt. Ex.
21.) Finally, Citation No. 4026568, dated March 10, 1993,
outlines a violation of Section 75 . 1725(a), 30 C. F.R . §
75.1725(a), alleging that a continuous. miner was not maintained
in safe operating condition because the foot control switch,
commonly called the "deadman" switch, was taped in the down
position.
·
In each of these cases, the Respondent concedes that a
violation occurred. (Resp. Br . 4, 7, 15-16.) Consequently, I
conclude that Beech Fork violated the sections of the regulations
alleged .
With regard to the loose coal and coal dust accumul~tions,
the Respondent makes the same argument concerning the gravity of
the violations that it did in Docket No. KENT 93-668. supra, at
11-12. I find the violation~ to be "significant and substantial"
for the same reasons set out in that docket. Id.
Turning to the problems with the roof falling away from the
roof bolts, Beech Fork argues that the likelihood of an
injury is remote because the only person travelling the airway is
a weekly examiner. It concludes by stating that "(i]t is
admitted that it is a serious violation, but it is contended that
i~stalled

it is not an eminent [sic] danger."

(Resp. Br. 16 . )

The

Respondent apparently misperceives the law. An imminent danger
does not have to exist for a violation to be S&S. In fact, a
"significant and substantial" violation is defined as something
less than an imminent danger. Cement Division, supra at 828.
As Inspector Fields pointed out, the intake airway is also
used as an escapeway. He also noted that while a roof fall could
obviously result in death or serious injury, small pieces of the
roof falling on someone could also involve reasonably serious
injuries. Applying the Mathies test, I conclude that this
violation was "significant and substantial."
Finally, in connection with the "deadman" switch, it is
Beech Fork's position that this violation is not S&S because the
miner operator has access to a panic switch, a switch which
completely turns off the miner, a breaker which de-energizes the
machine and spring loaded control levers. However, the "deadman"
switch is clearly designed to stop the continuous miner from
moving when the operator is prevented by unconsciousness,
incapacitating injury or death from using any of the devices
relied on by the Respondent. Considering the well known dangers
in mining and applying the Mathies test, I also conclude that
this violation was "significant and substantial."

1 359

The seGz:eta.ry -has · proposed a total of $2,147.00 in penalties
for these four violations . After reviewing the criteria in
Section llO(i) of the Act, I find the proposed penalties to be
appropriate .
Docket No. KENT 93-709

This docket consists of three orders issued under Section
104(d) (2} of the Act, 30 u.s.c. S 814(d} (2), 6 and one 104(a}
citation • . Order No. 3816656 sets out a violation of Section
75.220, 30 C.F.R. § 75.220, on January 25, 1993, charging that
Beech Fork had violated its roof control plan by permitting work
or travel under a roof that had not been permanently supported.
(Gt. Ex . 24 . ) Order No. 3816657 was also issued on January 25
and relates a violation of Section 75.325(b}, 30 C. F.R.
§ 75.325(b), because . there was not a minimum air velocity. of
9,ooo cfm in the last open crosscut on the 003 section between
the No. 2 and No. 3 entries. (Gt. Ex. 26.)
order No. 4026565 is dated March s, 19·93, and recites a.
violation of Section 75.334, 30 c.F.R. S 75.334, because a roof
fall had torn out a seal in the No . 4 entry in the return air
course off of the 001 section, the seal in the No . 3 entry had
been removed and the seals had not been reconstructed. (Gt.Ex.
27 . ) 7 Finally, Citation No. 9980129 was issued on January 25,
6

Section 104(d} (2) states:

If a withdrawal order with respect to any area in a coal
or other mine has been issued pursuant to paragraph (1),
a withdrawal order shal-1 promptly be issued by an
authorized representative of the secretary who finds upon
any subsequent inspection the existence iq such mine of
violations similar to those that resulted in the issuance
of the withdrawal order under paragraph (1} until such
time as an inspection of such mine discloses no similar
violations. Following an inspection of such mine which
discloses no similar violations, the provisions of
paragraph (l} shall again be applicable to that mine.
7

This order originally cited a violation of Section 11 75. 3342." It was modified on March 8, 1993, to allege a violation of
Section "75.344-a-2." It was modified again on February 3, 1994,
"to show that correct section of law is 75 . 334-2." (Gt. Ex . 28.)
There is no section 75.344-2 or Section 75.344(2}.
There is,
however, a Section 75.344(a) (2), 30 C. F.R. S 73.344(a) (2), and it
is clear that this was the section intended to be cited. In view
of the fact that the Respondent did not question the section at the
hearing or in its brief and does not appear to have been prejudiced
(continued on next page)

1360

1993, detaii-ing-·-a violation of Section 70.207{a), 30 C.F.R.
70.207(a), because the Respondent only submitted four valid
respirable dust samples for the bimonthly period of NovemberDecember 1992 instead of the five required.
(Gt. Ex . 29.)

§

Section 75.220(a) (1) requires that "[e)ach mine operator
shall develop and follow a roof control plan." Beech Fork's
approved roof control plan provides that "[b)efore any other work
or travel in .. or-inby an intersection which has an unsupported
opening, • • ·~ the roof shall be permanently supported in
accordance with the roof control plan."
(Gt. Ex. 25, p. 7.)
Inspector Fields testified that there were tracks across the
floor indicating that the roof bolting machine had gone by the
open crosscut into the No. 4 and No. 5 entries which had not been
supported either temporarily or permanently.
The inspector stated that he found this violation to be S&S
because if a roof .~all occurred it would be reasonably likely
that if it fell on someone they would suffer death or serious
injury. He further averred that this violation was an
unwarrantable failure "[b)ecause the roof bolter had drove [sic]
by this open crosscut. This crosscut had been mined prior to the
roof bolter coming into the area." (Trl . 225.) He also stated
that the safety director accompanying him on the inspection was
aware that the roof control plan was being violated.
Beech Fork concedes the violation in its brief.
(Resp. Br.
15.) Therefore, I conclude that Beech Fork violated Section
75.220. I further find that this violation was both "significant
and substantial" and an unwarrantable failure on Beech Fork's
part.
Turning to the next order, Section 75.325(b) requires:
In bituminous and lignite mines, the quantity of air
reaching the last open crosscut of each set of entries
or rooms on each working section and the quantity of
air reaching the intake end of a pillar line shall be
at leas~ 9,000 cubic feet per minute unless a greater
quantity is required to be specified in the approved
ventilation plan. This minimum also applies to
sections which are not operating but are capable of
producing coal by simply energizing the equipment on
the section.
either in abating the violation or preparing for hearing, I
conclude that this violation was sufficiently specific to be
allowed to stand. Cyprus Tonopah Mining corp., 15 FMSHRC 367, 379
(March 1993); Jim Walter Resources, Inc., 1 FMSHRC 1827, 1829
(November 1979).

1361

Inspector Fiel~s .. testified that he attempted to take an air
reading in the last open crosscut of the 003 Section and he could
not get a reading on his anemometer. He further recounted that
there were no ventilation controls at all on the section.
The Respondent admits the violation but contests the S&S
designation.
(Resp. Br. 4.) Consequently, I conclude that Beech
Fork violated Section 75.325(b) of the Regulations.
This was- essentially the same violation that the Respondent
had been cited for in Docket No. KENT 93-659. For the reasons
set forth in that docket, I conclude that this violation was
"significant and substantial." Supra, at 5. Since this was the
same section of the minethat had been cited a month earlier with
the violations in Docket No. KENT 93-659, I conclude that this
violation was the result of an unwarrantable failure on Beech
Fork's part.
The next order is for a violation of Section 75.334(a) (2)
which requires:
(a} Worked-out areas where no pillars have been
recovered shall be-( l} Ventilated so that methane-air mixtures and other
gases, dusts, and fumes from throughout the worked-out
areas are continuously diluted and routed into a return
air course or to the surface of the mine; or
(2)
sealed.
Beech Fork admits that it violated this regulation .
4.) Therefore, I conclude that it did.

(Resp. Br.

In Inspector Fields opinion this violation was S&S because
the missing seals could result in low oxygen and suffocation.
The Respondent addresses this issue only by making the statement
that there was not a reasonable likelihood that a reasonably
serious injury would result from this violation. In addition to
the reason cited by the inspector, Section 75.334(a) (1) indicates
why the break in the seals is reasonably likely to result in a
serious illness or injury, i.e. methane-air mixtures and other
gases, dusts and fumes are not removed from the worked-out area
or prevented from entering the working areas. Any one of these
conditions is reasonably likely to result in a reasonably serious
illness or injury. Hence, I conclude that this violation was
"significant and substantial."
The inspector testified that he found this violation to be
an unwarrantable failure because:

1·362

the operator had· told me back in January about the fall
(which crushed out the seal ] ; when r .approached him
about it on the mine map (before beginning the
inspection), he told me at that time that it had been
taken care of, they had reconstructed the seals and
they had not.
(Trl. 240 . ) ·He- further pointed out that the seals were supposed
to be inspected · on a weekly basis. Clearly, this is inexcusable
conduct resulting from more than mere inadvertence. I conclude
that Beech Fork unwarrantably failed to comply with this
regulation .
The final citation involves the failure to take the required
number of dust samples. Section 70.207(a) requires that~
Each operato r shall take five valid respirable dust
samples from the designated occupation in each
mechanized mining unit during each bimonthly period
Designated occupation samples shall be collected
on consecutive normal production shifts or normal
production shifts each of which is worked on
consecutive days.
The Respondent submits that this violation was inadvertent and
not the result of high negligence on the part of Beech Fork.
(Resp. Br. 10.) Based on this admission, I conclude that Beech
Fork violated Section 70.207(a).
To show that the Respondent was highly negligent in
connection with this violation, the Secretary put into evidence
four other citations for the same violation.
(Gt. Exs. 29A, 29B,
29C and 29D.) While all of these appear to be similar violations
and may have put Beech Fork on notice that there was a problem
with its submission of dust samples, they are not matters in
aggravation in this instance since they were not received by
Beech Fork until after it had submitted the dust samples in
question.
(Gt . Ex. 50.)
Furthermore, Mr. McGinnis testified that five samples were
taken, that they were in contact several times with the
Paintsville District Off ice in an attempt to find out what
happene~ to the fifth sample and that they took this problem very
seriously. Adding this testimony to fact that five samples have
been required since at least November 1, 1980, and that nothing
would be gained by an operator deliberately continuing to sent in
only four samples, I accept Beech Fork's profession of diligence
and conclude that a-t most Beech Fork was moderately negligent.
Accordingly, the citation will be modified to indicate that and

1363

the modific~~i-~n . \t{_ili .be taken into consideration in assessing a
penalty .
The Secretary has proposed total penalties in this docket of
$20,300.00. I find that the proposed penalties for the three
orders are appropriate . However, I am reducing the penalty for
the dust sample violation to $50.00 in view of the reduced
negligence I have found concerning it.
Docket No. KENT 93-780

This docket consists of a single citation, Citation No.
9980135, for a violation of the dust sampling requirements in
Section 70.208(a) on February 12, 1993. (Gt. Ex. 30.) Once
again, the Respondent admits the violation but challenges the
degree of negligence.
Mr. McGinnis testified with respect to this violation that :
This one occurred because of a clerical error. I
have copies of the dust reports that are sent back to
us. And it shows that we had an excessive sample for
that cycling period on the 9020.
We sent two samples in with the same number. One
of them should have been 901, but both. were--it was a
clerical error. So we have got listed as an excessive
sample for that site .on that one. Corrective action
was taken immediately once we were aware of that.
(Tr2 . 176.) Again, I credit this testimony and find that
although Beech Fork violated the regulation and was clearly
negligent, it was not more than moderately negligent.
Consequently, I will modify the citation and am reducing the
penalty from the $1,100.00 proposed by the Secretary to $50 . 00.
Docket No. KENT 93-781

This docket consists of three citations. Citation
No. 3816651, dated December 22, 1992, describes a violation of
Section 75.523-3 in that the automatic brakes on the No. 2
shuttle car· in the 003 section were inoperative when checked.
(Gt . Ex. 31.) Citation No. 4029827 alleges a violation of
Section 75.1100-3 because the fire suppression system installed
on the continuous miner in the 002 section was not maintained in
a usable and operative condition on February 10, 1993. (Gt. Ex.
32.) Lastly, Citation No. 4026564 sets out a March s, 1993,
violation of Section 75 . 400 for allowing loose coal and float
coal dust to accumulate in various locations under the No. 7 belt
conveyor line and in the entry and crosscuts starting at the head

:!. 364

drive and ei~ending ·±nby four crosscuts to about survey 4748 .
(Gt. Ex. 3 3 . )
These violations involve the same type of violations found
in Docket Nos. KENT 93-668, 93-669 and 93-699. The Respondent
makes the same arguments concerning these violations that he did
about the violations of the same. sections in those dockets.
(Resp. Br. -7-9, 12-13.) Supra, at 9, 11-14.

..

Hence, I ' found that Beech Fork committed each of these
violations and that the violations are "significant and
substantial" for the same reasons given in the previous dockets.
Id.
The Secretary has proposed $1,881.00 in penalties for these
three violations. I conclude that this is an appropriat~
penalty.
Docket No. KENT 93-903

Inspector Fields issued Citation No. 4026563 on March 7,
1993, for a violation of Section 75.202(a). The citation stated
that additional roof support was needed in the No. 3 entry along
the No . 7 belt line where a roof fall had occurred.
(Gt. Ex.
34.) The inspector testified that he had been informed that the
roof fall had occurred earlier that morning. The area had
already been partially cleared and the equipment had been moved
out of the area. However, he explained that there was no
indication that any further roof support, other than the roof
bolts put in prior to the fall, had been installed. Moreover, he
said that the area had not been posted with danger signs.
Mr. McGinnis testified that this was the second roof fall · in
the area and that management was waiting to see if anything
further developed. He related that some cribbing had begun after
the first fall as additional roof support and that employees were
instructed not to travel in that area. He admitted that no
danger signs had been posted; in fact, he reve.a led that the
danger signs put up after the first fall had been taken down by
the time of the inspector's inspection.
Section 75.202(a) requires 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 . " I
conclude that Beech Fork violated this regulation by failing to
post danger signs in the area, i.e. by not "controlling" the
area. Instructing the employees not to go through that area in
which persons otherwise would have been working and traveling was
not sufficient as some employees may have missed getting the
warning and without out danger signs to reinforce it, it could be
easily forgotten.

::..365

The ha.z ards·· o-f ··roof falls are well known. Cyprus Empire·
Corporation, 12 FMSHRC 911, 920 {May 1990) . Accordingly, I find
th~t this violation was "significant and substantial . "
Inspector Fields issued two citations on March 4, 1993. The
first, Citation No. 4030141, alleged a violation of Section
75.400 because a roof bolting machine in the 001 working section
had an accumulation of oil and grease as well as coal dust and
loose coal on-it.
(Gt. Ex . 35 . ) The second, Citation No.
4030142, recited that the operator-side blower motor pulley and
belt were not adequately guarded on the same bolting machine in
violation of Section 75.1722{a), 30 C.F.R. § 75.1722(a).
(Gt .
Ex. 36.)
At the hearing, Beech Fork's representative stated that they
did not contest Citation No . 4030141. (Tr2. 72.) Hence, I
affirm that citation as. written.
With regard~ t~ the second citation, I~~pector Fields
testified that the _b elt and pulley in question are located about
ten to twelve inches from the operators seat when the bolting
machine is being steered. He stated that a guard was present,
but the pinch point was still exposed so that someone could catch
a finger or hand in it if his hands, for instance, slipped off of
the steering wheel. He opined that a permanently disabling
injury could result from such an incident .
Section 75.1722(a) requires that "(g)ears; sprockets;
chains; drive, head, tail, and takeup pulleys; flywheels;
couplings, shafts; sawblades; fan inlets; and similar exposed
moving machine parts which may be contacted by persons, and which
may cause injury to persons shall be guarded." The inspector's
testimony on this violation was unrebutted at the hearing and
Beech Fork has not addressed it in its brief.
Based on the inspector's evidence I conclude that Beech Fork
-committed this violation . I further conclude that the violation
was "significant and substantial."
Inspector Fields issued five citations on May 26, 1993 .
Citation No. 4030151 sets out a violation of Section 75.1725(a)
in that a diesel power mantrip was not properly maintained since
the throttle cable had broken and it was being operated by a
piece of telephone cable. (Gt. Ex. 37.) Citation No. 4030152
alleges a violation of Section 75.370(a)(l) because coal was
being mined on the third shift in the No. 2 entry face and no
line curtain was being used within 20 feet of the face as
required by the ventilation plan. (Gt ~ Ex. 38.)
Citation No. 4030154 recites a violation of Section
75.1722(b) for inadequate guarding of the 003 section tail piece
pulley because the guard was bent up and part of the guard was

136 6

down exposing the a'r"ive pulley on the left side and the guard was
completely gone exposing the pinch point on the right side. (Gt.
Ex. 40.) citation 4030155 describes another violation of Section
75.1722(b), this time because the guards across the front of the
drive pulleys and the right side of the discharge roller on the
No. 3-B belt conveyor drive were missing.
(Gt. Ex. 41.)
Finally, Citation No. 4030156 is for a violation of Section
75.400 as fin~ coal and float coal dust was allowed to accumulate
under the belt and around the No. 3-B belt conveyor line f ·o r
approximately .400 feet.
(Gt. Ex. 42.)
With regard to the mantrip, Inspector Fields testified that
he saw it arrive at the surface with a load of miners, being
operated with a piece of telephone wire running over the top of
the mantrip as a substitute throttle cable. He indicated that
the throttle cable, which was broken in this case, norma.l ly runs
under the mantrip. He stated that the problem with using the
telephone cable as- it was was that the cable could become caught
or fouled causing the throttle to stick open with no way to stop
the mantrip. He further theorized that if this occurred the
mantrip could run into something or throw someone off resulting
in serious injuries.
Mr. McGinnis testified that the throttle cable broke as the
crew started out of the mine. It was his opinion that the
potential problems described by the inspector were not likely to
occur .
Section 75.1725(a) requires that "[m]obile and stationary
machinery and equipment shall be maintained in safe operating
condition and machinery or equipment in unsafe condition shall
be removed from service immediately." Since the mantrip throttle
cable was not properly repaired and the mantrip was not
immediately removed from service, I conclude that the Respondent
violated the section in this case.
However, I find that the violation was not "significant and
substantial." It is apparent that the telephone cable substitute
was used only to complete the trip out of the mine. There is no
evidence that the .mantrip had been continuously operated in this
manner and a new throttle cable was installed before it was used
again. No accident had occurred on the way out of the mine.
Thus, it was not reasonable likely that a reasonably serious
injury would result from this violation. I will modify the
citation accordingly.
The four remaining citations are similar to ones discussed
in previous aockets. The Respondent makes the same arguments
concerning these four that he did previously. Therefore, for the
reasons set out concerning the earlier violations, I conclude
that Beech Fork committed these four violations and that they
were "significant and substantial." Supra, at 4-5, 11-12.

1367

The last ci tati·on in this docket was issued by Inspector
Fields on June 8, 1993. Citation No. 4034025 sets out a
violation of Section 75.220(a) (1) because there was evidence that
a scoop had been cleaning the ribs and roadways by the open
crosscut and face of the No. 4 entry under unsupported roof in
violation of the roof control plan. (Gt . Ex. 43.)
With regard to this citation, Inspector Fields testified
that he observed evidence that a scoop had been in the area of
the upper two.sections of the face of the No. 4 entry and the
right crosscut cleaning the roadways and ribs. He recounted that
the coal had been cleaned through and cut and there were rubber
tire tracks in the area. He stated that the area had not been
roof bolted.
Beech Fork concedes the violation.
(Tr2. 209.) Beech
Fork's roof control plan prohibits work or travel in or inby an
intersection which..has an unsupported opening before the roof is
permanently supported. (Gt. Ex. 44, p. 11 . ) Consequently, I
conclude that the Respondent committed this violation and,
because of the obvious dangers of a roof fall, that the violation
was "significant and substantial."
The Secretary has proposed a total of $4,373 . 00 in penalties
for these citations. With the exception of the proposed penalty
for Citation No. 4030151, which I am reducing to $50.00, I find
that the penalties proposed by the Secretary are appropriate.
Docket No. KENT 93-904
This docket consists of one Section 104(d) (2) order issued
on May 4, 1993, for a violation of Section 75.370(a}(l) of the
Regulations . Order No. 4030143 states "[t]he approved
ventilation plan was not being complied with on the 001 section
in the #4 entry face where the • . • roof bolter was observed
bolting top and a line curtain had not been installed as required
by the approved ventilation plan." (Gt. Ex. 4·5.)
Inspector Fields testified that the line curtain was
required to be installed up to the rear of the roof bolting
machine as set out in Item 1 of page D (also denominated as page
3A) of Beech Fork's ventilation plan. (Gt. Ex. 39.) He stated
he saw the roof bolter at the No. 4 entry face, installing roof
bolts and no line curtain was present. When asked how what he
observed was a violation of the ventilation plan, he replied:
Because · this particular Ventilation Plan, the section
had a dust sample there that showed quartz, and the
plan was revised to reql,lire a line curtain to be

1 368

install·e d up · to -the roof and the roof bolt machine for
that purpose; they call it a DA.
(Tr2. 130.)
I can find nothing in the ventilation plan which requires
that a line .curtain be installed up to the rear of the roof bolt
machine. I ca~-find nothing in the plan concerning ' its revision
in the event quartz is encountered. When I asked Inspector
Fields if the line curtain was required because the velocity of
the air in that area was not 3,000 cfm, he stated that the
curtain "was needed because the Ventilation Plan was being
revised due to the fact that where the quartz contents and the
[silicone] contents could be chronologically [sic] installed,
otherwise the Ventilation Plan wouldn't even be required .to be
any place." (Tr2 . 134 . ) The following colloquy then took place:
Judge Hodgdon : I don't see how you get from Page D,
where it says roof bolting operating at 3,000 cfms, to
the requirement based on quartz.
The Witness : Well , the quartz comes from the samples
which were sent to Pittsburgh to be analyzed, and that
makes the determination as to where the silicone quartz
is in the sample itself.
Judge Hodgdon: Is there something in the plan that
says, what you called a designated area , that there has
to be a line curtain?
The Witness: No. Once the roof bolt becomes a DA, the
plan was revised to require .a [line] curtain to be
installed because a roof bolt becomes a DA and it's
revised, or otherwise you wouldn't have it.
Judge Hodgdon: Is there someplace in the plan it says
that or is that [found in the] regulations?
The Witness: As part of the regulation in which it
conforms with the DA or the Ventilation Plan • •
(Tr2. 134-35.)
Surprisingly, the Respondent agreed that what the inspector
described was a violation of the ventilation plan. (Tr2 . 216 . )
It may well be that this was a violation of one or more of the
Secretary's Regulations . However, it clearly is not a violation
of the ventilation plan based on the evidence presented at the

1369

hearing, noL. .iS?..- i.t -.readily apparent what other regulation may
have been violated. Accordingly, I vacate the order.
Docket No. KENT 93-992

The last docket consists of one citation for a violation of
Section 75.1725(a} of the Regulations issued on March 17, 1993.
Citation No. 4026571 states that a diesel scoop was not being
maintained in safe operating condition because the automatic
brakes were inoperative.
Inspector Fields testified that on March 17 he investigated
an accident which had occurred on March 16. He determined that
the engine had died on the scoop, that the scoop then rolled down
an incline and onto the side of an embankment where it turned on
its side. The scoop operator was taken to the hospital with
minor bruises. The inspector related that the scoop was still on
its side when he made his investigation and that at that time he
was able to turn tne tires by hand leading him to believe that
the automatic braking system was inoperative .
Inspector Fields further reported that the operator told him
that the braking system had been working prior to the accident.
The inspector also talked to the Beech Fork mechanic who
inspected the scoop and was informed that the brake caliper had
ruptured and split open.
It is Beech Fork's position that the caliper was destroyed
during the incident because the caliper could not sustain the
sudden load placed on it when the automatic braking system was
engaged after the scoop started rolling down the incline . I
conclude that the Secretary has not proved this violation by a
preponderance of the evidence presented at the hearing .
There is no direct .evidence as to when the caliper broke,
but there is circumstantial evidence that it was functioning just
prior to the accident. If it broke without prior warning during
the accident, as the evidence seems to indicate, then · it cannot
be said that Beech Fork did not maintain the scoop in safe
operating condition. Accordingly, I vacate the citation.
CIVIL PENALTY ASSESSMENTS

In arriving at appropriate civil penalty assessments in
these cases, I have taken into consideration the statutory
criteria set out in Section llO(i) of the Act. In the two years
preceding these violations, Beech Fork had accumulated 227
violations. (Gt. Ex. 48.) That does not seem to be excessive
for a company of Beech Fork's size. The pleadings indicate that
Mine No. 1 produces 843,785 tons of coal per year and that, in
all, Beech Fork produces 1,777,147 tons per year. Consequently,

1370

I conclude that. the·· assessed penaltie·s are appropriate for a
company the size of Beech Fork and will not effect its ability to
remain in business. I have also considered that . most of the
violations were "significant and substantial" and that most of
the violations involved only moderate negligence on Beech Fork's
part. Finally, I have ~onsidered that on at least two occasions,
Beech Fork did not abate the violations as rapidly as it should
or could have ~nd that many of the violations were repeated.
Accordingly, I have assessed a penalty for each citation or
order as follows.: 8
Docket No. KENT 93-659
Citation No. 3816646

$2,000.00

Order No.

$2,000.00

3816647

Docket No. KENT 93-668
Citation No. 3816654

$

citation No. 3816658

$1,155.00

Citation No. 4029824

$

Citation No. 4029826

$1,450.00

citation No. 4029828

$1,450.00

Citation No. 4027041

.$

Citation No. 4027042

$4,600.00

Citation No. 4027043

$

Citation No. 4027045

$1,450.00

citation No. 4029839

$

Citation No. 4029840

$4,600.00

Citation No. 4026562

$

690.00

Citation No. 4027060

$

267.00

8

595.00

595.00

595.00

595.00

595.00

Without explanation or rationale, the Secretary has
submitted in his brief that all but one of the civil penalties be
double the amount that he originally proposed in these cases. My
review of the record provides no basis for such punitive action.
Therefore, I have not followed the Secretary's suggestion.

1371

Docket No. KENT. -·9 ·3 -66-9 ·

$

690.00

citation No. 4026561

$

267.00

Citation No: 3Sl--6644

$

595.00

Citation No. 4029838

$

595.00

Citation No. 4026568

$

690.00

Citation No. 4026569
Docket No. KENT 93-699

Docket No. KENT 93-709
Order No.

3816656

$8,000.00

Order No.

3816657

$7,000.00

Order No.

4026565

$4,600.00

Citation No. 9980129

$

50.00

$

50.00

Docket No. KENT 93-780
Citation No. 9980135
Docket No. KENT 93-781
citation No. 3816651

$1,019.00

citation No. 4029827

$

595.00

Citation No. 4026564

$

267.00

citation No. 4026563

$

903.00

Citation No. 4030141

$

50.00

Citation No. 4030142

$

431.00

citation No. 4030151

$

50.00

Citation No. 4030152

$

431.00

Citation No. 4030154

$

431.00

citation No. 4030155

$

690.00

Docket No. KENT 93-903

1372

citation - No~ ·4030156

$

267.00

Citation No. 4034025

$

903 . 00

Total Penalty

$51,211.00
ORDER

Order No. 4030143 in Docket No. KENT 93-904 and Citation
No. 4026571 in Docket No. KENT 93-992 are VACATED and DISMISSED.
Citation No. 4026574 in Docket No. KENT 93-669 is DISMISSED.
Citation No. 9980129 in Docket No . KENT 93-709 and Citation
No. 9980135 in Docket No. KENT 93-780 are MODIFIED by reducing
the level of negligence from "high" to "moderate . " Citation
No. 4030151 in Docket No. KENT 93-903 is MODIFIED by deleting
the "significant and substantial" designation.
Order Nos. 3816646 and 3816647 in Docket No. KENT 93-659;
Citation Nos. 3816654, 3816658, 4029824, 4029826, 4029828,
4027041, 4027042, 4027043, 4027045, 4029839, 4029840, 4026562 and
4027060 in Docket No. KENT 93-668; Citation No. 4026569 in Docket
No. KENT 93-669; Citation Nos. 4026561, 3816644, 4029838 and ·
4026568 in Docket No. KENT 93-699; Order Nos . 3816656, 3816657
and 4026565 and citation No. 9980129 in Docket No. 93-709;
Citation No. 9980135 in Docket No. KENT 93-780; citation
Nos. 3816651, 4029827 and 4026564 in Docket No. KENT 93-781;
Citation Nos. 4026563, 4030141, 4030142, 4030151, 4030152,
4030154, 4030155, 4030156 and 4034025 in Docket No. KENT 93-903
are AFFIRMED.
Beech Fork Processing, Inc . is ORDERED to pay civil
penalties in the amount of $51,211.00 for these violations within
30 days of the date of this decision. on receipt of payment,
these proceedings are DISMISSED.

J.dY-1~

T . Todd H~~~~'
Administrative Law Judge

Distribution:
MaryBeth Bernui, Esq., Of·f ice of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road~ Suite B-201, Nashville, TN
37215 (Certi~ied Mail)
Link Chapman, Safety Director, Beech Fork Processing Inc.,
P.O. Box 190, Lovely, KY 41231 (Certified Mail)
/lbk

13 73

-· - - OFFICE OF ADMINISTRATIVE LAIJ JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

lJUN 3 0 1994
LARRY E. SWIFT, MARK SNYDER
and RANDY CUNNINGHAM,
Complainants

v.

CONSOLIDATION COAL COMPANY,
Respondent

.. DISCRIMINATION PROCEEDING
..•• Docket No . PENN 91-1038-0
. MSHA Case No. PITT CO 90-09
.•: Dilworth Mine
DECISION

-.

Appearances:

William Manion, Legal Counsel, united Mine Workers
of America, Region 1, Washington, Pennsylvania,
for complainants1
Elizabeth Chamberlin, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Melick

This case is before me upon remand by decision dated
February 14, 1994. See 16 FMSHRC 201. In that decision the
issues were delineated as (1) whether the reporting of injuries
under the Consolidation coal Company (Consol) Program for High
Risk Employees (Program) constitutes protected activity under
section 105(c)(l) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c . § 801, ~~.,the "Act"1 1 (2) whether the
1

Section 105(c)(l) of the Act provides as follows:
"No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant
for employment in any coal or other mine subject to this Act
because such miner, representative of miners or applicant for
employment has filed or made a complaint under or related to
this Act, including a complaint notifying the operator or the
operator's agent, or the representative of the miners at the
coal or other mine of. an alleged danger or safety or health
violation in a coal or other mine, or because such miner,
representative of miners or applicant for employment is the
subject .of medical evaluations and potential transfer under
a standard published pursuant to section 101 or because such
miner, representative of miners or applicant for employment
has instituted or caused to ·be instituted any proceeding unde~
or related to this Act or has testified or is about to testify
1374

Program is f ac-i ally ;·- or -per se, discriminatory in violation
of section lOS(c)(l) of the Act; (3) whether the Program was
instituted for discriminatory reasons; and (4) whether the
Program was applied to miners in violation of sectio~ lOS{c)(l).
In its decision the Commission affirmed the findings below
that injury reporting constitutes protected activity, but a
Commission majority reversed the findings that the program was
facially discriminatory and remanded for consideration of the
third and fourth ·issues.
Backgroµpd
Consol operates the Dilworth Mine, an underground coal
mine in Greene County, Pennsylvania. On January 1, 1990, the
Dilworth Mine initiated the Program which directs that each
employee report to management any incident resulting in personal injury. See 14 FMSHRC 361, 365-67 {1992). The Mina's
previously adopted safety rules also require employees to
report all injuries.
Step I of the Program consists of designating as "High
Risk" any employee w~o experiences four injuries in 18 working
months . Such an employee receives counseling from Consol's
management. If the employee at Step I works 12 months without
experiencing an additional injury, he clears his record and
leaves the Program; the employee reaches Step II if he incurs
an additional injury within 12 months. The employee at Step II
is counseled, suspended from work ~or two days without pay, and
required to attend a special awareness session. That employee
leaves the Program if he works 12 months without experiencing
further injury; if the employee experiences an injury within
the 12 months, he reaches Step III. At Step III, the employee
is suspended with intent to discharge. 14 FMSHRC at 365-66
{Appendix paras. 3-5).
On January 23, 1990, Dilworth employees ~ Swift,
Randy Cunningham and Mark Snyder, who were members of the
United Mine Workers of America (UMWA) and safety committeemen at the mine, filed a discrimination complaint with the
Department of Labor's Mine Safety and Health Administration
(MSHA) alleging that implementation of the Program penalized
miners and restricted them from reporting all accidents.
Following its investigation, MSHA determined that Consol had
not violated the Mine Act and the Secretary of Labor declined
fn. 1 (continued)
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 the Act."
1375

to prosecute.~ _.$wi.ftr Snyder and cunningham pursued their
claim with private counsel. They filed a .discrimination
complaint with the Commission on July 20, 1990, on behalf of
themselves and all Dilworth Mine employees pursuant to section
105(c)(3) of the Act. At the initial hearings, the miners
argued that the Program violated section 105(c)(l) of the
Act on its face, in its motivation, and as it was applied.
Following :trial, it was held in the initial decision
that reporting mine injuries is a protected right under
the Act and that the Program was discriminatory on its face.
It was further held that, by subjecting Consol's employees
to suspension and discharge based upon the filing of reports
of personal injury, the Program on its face inhibited the
reporting of mine injuries and , in so doing, constituted
illegal interference with such protected activity. Consol was
accordingly ordered to "cease and desist from implementation
of any disciplinary action" under the Program and to expunge
from all records any references to disciplina.r y .action taken
under the Program. 14 FMSHRC at 364. As noted, a Commission
majority reversed those findings and remanded for a specifically
limited determination of whether the Program was initiated for
discriminatory reasons and, if not, whether the Program was
applied to miners in a discriminatory manner.
Issues on Bemand
The Commission has held that discriminatory motive will
invalidate a policy that it considers to be otherwise facially
lawful. Secretary on behalf of Price and Vacha v. Jim Walter
Resources, Inc . , 12 FMSHRC 1521, 1533 (1990). The PasulaRobinette test provides the framework for analyzing the reasons
for Consol's adoption of the Program. Secretary on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (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 (1981). Under the
Pasula- Robinette framework, the complainant bears the burden
of production and proof in establishing that (1) he engaged
in protected activity and (2) the adverse action complained of
was motivated, in any part, by that activity.
Since it has been established that two of the Complainant
miners, i.e, Swift and Cunningham, engaged in protected
activities on behalf .of themselves and other miners by filing
comflaints to the Secretary pursuant to section 103(g) of the
Act for Consol's alleged under-reporting of injuries prior to
2

EXhibit Nos . C-7L, C-7N, C-7R, C-75 and C-7T;
Tr. I (hearing transcript for October 3, 1991): 182 and
Tr. II (hearing transcript for October 4, 1991): 36-37.

1376

the implementati on -of - the Program at the Dilworth Mine, the
first prong of the Pasula-Robinette test has been established.
Consol also acknowledges that Cunningham engaged in protected
activities by participating in conferences following the issuance
of citations to Consol for failure to have reported ~njuries. 3
Whether the adverse action complained of (i.e., the
implementation of the Program by Consol at its Dilworth Mine)
was motivated in any part by the protected activity is more
difficult to e~tablish. As the Commission has noted, direct
evidence of actual discriminatory motive i 's rare . Short of
such evidence, illegal motive may be established if the facts
support a reasonable inference of discriminatory intent,
Secretary on behalf of Chacon v. Pbelps Dodge Corp., 3 FMSHRC
2508 (1981), rev'd on other grounds, .E.m. n2Jll.., Donovan v.
Phelps Dodge Corp., 809 F . 2d 86 (D.C. Cir 1982); Sammons y, ·
Mine Seryice Co., 6 FMSHRC 1391 (1984). The Commission has
also quoted from analogous statements by the Eighth Circuit
with regard to discrimination cases arising under the National
·Labor Relations Act in NI.RB v. xelrose Processing co., 351 F.2d
693, 698 (8th Cir. 1965):
It would indeed be the unusual case in which the
link between the [adverse action] and the [protected
activity] could be supplied exclusively by direct
evidence. Intent is subjective and in many cases
the discrimination can be proven only by the use of
circumstantial evidence. Furthermore, in analyzing
the evidence, circumstantial or direct, the [NLRB]
is free to draw any reasonable inferences.
3 FMSHRC at 2510.

In the instant case, the Complainants argue that the
"primary evidence" of discriminatory motivation is the
"chronology" of events (Complainants' Brief on Remand, p. 4).
In particular., they note that in 1984 , then Chiiirman of the
Safety committee, Ken Krause, began an investigation into
the alleged failure of Consol to report certain accidents
or injuries at the Dilworth Mine in accordance with 30 C.F.R .
Part 50. Complainant Larry swift purportedly continued to
investigate allegations of Consol's failure to report accidents
when he became Chairman of the Mine Safety Committee in 1986.
Complainants maintain that Krause, Swift and Cunningham thereafter filed a series of complaints under Section 103(g) of
the Act which also resulted in the issuance of "notices of
violations" by MSHA. While they note that the initial program
was voided in. arbitration, essentiillly the same program, the
Program at issue, was thereafter instituted.
3

Tr . II: 40-41 .

1377

While the timinq -of the Program does appear suspicious,
an equally reasonable and non-discriminatory inference from
the chronology of events is that the Program was implemented as
a result of, and in an attempt to reduce, the larqe number of
injuries at the Dilworth Mine and where the records interpreted
by Consol show there was the worst safety record in Consol's
Eastern Reqion. 4
The Complai-nants next arque that discriminatory motive can
be shown because· "(i]t is clear that the aim of the program is
D.Qt.. to punish and/or correct unsafe acts." (Complainants' brief
on remand p. 5, emphasis in oriqinal). In alleqed support of
this arqument they state as follows:
The evidence offered by the claimants in this
reqard is both statements of qeneral observation of ..
the application of the program. Swift described the
program in operation as qualifyinq people on the plan
for havinq scrapes and bruises that did not. even
require first aid. (Tr. 195). He also testified ·
that 122 mines [sic](out of 254) were on the first
step of the program by June, 1991. (Tr. 210). This
clearly shows that the employer is Jl.Q:t. placinq peopl~
on the program only for injuries that were caused by
neqliqence. (~, emphasis in oriqinal).
This arqument is difficult to follow but, in any event, the
asserted conclusions do not logically follow from the factual
assertions. · The fact that the Program includes minor as well
as serious injuries and that many employees may have, at $Ome
point in time, been in the first step of the Program does not,
in itself, demonstrate unlawful motivation for instituting
the Program. Under the circumstances, I cannot find that Complainants have met their burden of provinq that Consol instituted
the Program for discriminatory reasons.
In its remand order, the Commission also 9irected
examination of the issue of whether Consol applied the
Program in a disparate way to individual miners or classes
of miners in contravention of the Act, citinq as an example,
the exclusion from the Program of an injury to ~ne miner and
inclusion of a similar injury to another miner. There is,
however, simply no evidence of such discrimination in the
4

It should also be noted that Complainants have not
shown that Consol had knowledqe that they had filed the
confidential .section 103(q) complaints with the Secretary
althouqh it may reasonably be inferred that Consol officials
knew that 103(q) complaints bad been filed since at least one
of the resultinq citations makes reference to such a complaint
(Exhibit C-7 M).

1378

record herei:n. -··· Indeed~ none of the Complainants even makes
such a claim.
The Complainants do appear to.claim in their brief, as·
evidence of discriminatory application of the Program, that
•(v]irtually all injuries, no matter how mino~ (including small
cuts, abrasions or abrasion (sic]) are considered injuries under
the Program (and that] (v]irtually all injuries are considered
as 'fault' or ,aulpable' injuries even when such a finding of
fault is unreasonable." (Complainants' brief on remand, p. 3)
While the assertion (that "virtually all injuries are
considered 'fault' or 'culpable ' injuries even when such a
finding of fault is unreasonable") is not supported by record
evidence, even assuming that the assertions were true, the
Complainants have failed to cite or produce credible evidence
that they , or any other employees , have been singled out for
disparate treatment or have been discriminatorily charged with
minor injuries or "no fault" injuries. Accordingly, there is
no basis to support this theory of discrimination in this case.
Under the circumstances, and given the criteria in the remand
directive, there is no alternative but to dismiss this case.
ORDER

Discrimination Proceeding Docket No . P
DISMISSED.

91-1038-D is

•

Law Judge
Distribution:
William B. Manion, Esq., United Mine Workers of America,
Region 1, 321 Washington Trust Building, Washington, PA
15381 (Certified Mail)
Elizabeth s . Chamberlin, Esq., Consolidation Coal Company,
Legal Department, Consol Plaza, 1800 Washington Road,
Pittsburgh, PA 15241 (Certified Mail)
\lh

1379·

FEDERA[ -M1N~SAFE1Y AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

. .

JUN 3 0 1994

. CIVIL PENALTY PROCEEDINGS
: Docket No. PENN 93-22
C. No.
36-02713-03575
.::• A.Docket
No . PENN 93-73

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

:

POWER OPERATING COMPANY, INC.,
Respondent

:

A. C. No.

36-02713-03577

:
:

Docket No.
A. C. No.

PENN 93-386
36-02713-03586

v.

.. Docket No. PENN 93-360
.• A. C. Nq. 36-02713-03585
••
•

.:• Docket No. PENN 93-166
. A. C. No. 36-02713-03579
: Frenchtown Mine
1

.•

:
:

Docket No.
A. C. No .

PENN 93-165
36-04999-03535

Docket No.

PENN 93-287
36-04999-03537

A. C. No.

. Leslie Tipple Mine
DECISION

Appearances:

Linda Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania for Petitioner:
Tim D. Norris, Esq., and Farrah Lynn Walker, Esq.,
Stradley, Ronon, Stevens & Young, Philadelphia,
Pennsylvania for Respondent.

Before:

Judge Weisberger

1
This decision is only a partial decision as it relates to
Docket No. PENN 93-166 . Only one of the two citations in this
docket number was litiga~ed on March 8, 1994. The remaining
citation (No. 3709746), will be heard on August 30, 1994.

1380

...- ... ___ .S.t atement of the Case

These cases, consolidated . for hearing, are before me based
upon Petitions for Assessment of Civil Penalty filed by the
secretary (Petitioner), alleging violations by the Operator
(Respondent), of various mandatory safety standards. Subsequent
to discovery, 2 and pursuant to notice, the cases were heard in
Bellefonte, Pennsylvania on March 8, 9, and 10, 1994 •
. ~ Findings Of Fact and Discussion
I.

Docket No. PENN 93-22. (Citation No. 3490508)
A.

Violation of 30 C.F.R.
1.

§

1606Cc)

Loose Ball Stud

Charles s. Lauver, an MSHA inspector, testified that on
August 28, 1992, while inspecting Respondent's facilities, he
asked the driver of a Unit Rig Electra haul truck to move the
steering wheel back and forth. Lauver observed the vehicle,
which was stationary at the time, and looked under the front
wheels. He observed that the left ball stud moved back and
forth. He estimated that it moved one quarter of an inch
in each direction. He issued a citation alleging a violation of
30 C.F.R. § 77.1606(c), which provides as follows: "Equipment
defects affecting safety shall be corrected before the equipment
is used."
The vehicle in question is equipped with two steering jacks
on each side of the truck that turn t~e front wheels. Each jack
is attached to a cylinder, which in turn is attached to the main
truck frame by a ball stud. Because the stud tapers down towards
the end that protrudes through the outside of the frame, the hole
in the frame through which the stud is positioned has a smaller
2

On July 19, 1993, Respondent filed a Motipn to Compel
Response to Interrogatories, Response to Request for Production
and Deposition Testimony. On August 3, 1993, Petitioner filed a
Response in Opposition. On August 16, 1993, an Order was issued
requiring Respondent to file a statement identifying the specific
requests it wanted to compel Petitioner to answer, along with a
statement setting forth facts to establish its need for the
information sought. Petitioner was ordered to describe and
summarize the documents it claimed were privileged, and to file a
formal claim of privilege. on October 29, 1993, oral argument
was held on the issues raised by Respondent's Motion, and
Petitioner's Response. On the record, at the oral argument,
Orders were issued regarding all the issues raised by the Motion
and Response.
on September 21, 1993 Petitioner filed a motion to amend its
Petition in Docket No . Penn 93-133 to add "eight additional
citations." Respondent filed a response. On November 19, 1993,
an Order was issued denying the motion.

1381

diameter on ·-the·-- outsiae of the frame, as opposed to the diameter
of the hole inside the frame. The stud is attached to the frame
by way of a washer and bolt, both of which are located on the
outside of the frame. According to Lauver, because the stud was
loose, it could shear off or become detached from the frame,
should the truck be driven over rough roads, or hit a hole in the
road. Lauver opined that should the stud either shear or
separate from ~he mainframe, extra strain would be placed on the
jack on the ot~er side of the vehicle, and the effectiveness of
the steering would be reduced .
William Bratton, a maintenance foreman employed by J.E.M.
Industries, has repaired and assembled Unit Rig Electra trucks.
He indicated that since each steering jack turns the wheels in
both directions, should one steering jack become ·inoperative due
to failure · of the stud, both wheels would still turn. He also
opined that a quarter inch movement of the stud would not affect
the steering on th~ truck, as long as the stud and cylinder are
attached, and the .stud is attached to the frame.
Lauver indicated there were no cracks in the stud or on the
frame, and that when he observed the vehicle being operated it
appeared to "steer fine." (Tr. 44, March 8, 1994).
He also
agreed that if the stud did shear off, the vehicle could still be
steered.
On cross-examination, Bratton agreed that the conical
portion of the stud should be stationary. He said that if, upon
inspection, he had found play in the stud to the extent noted by
Lauver, he would have repaired it. He was concerned that if the
steering jack should become detached, "it would slow the
steering" (Tr. 70, March 8, 1994).
Within the framework of the above evidence, I find that a
separation of the stud from the frame wa~ not likely to occur,
due to the manner in which it was attached, and the tapering of
the hole in the frame in which the stud was placed. · However, I
find that it is possible that with continued operation of the
truck over rough roads, because the stud was not stationary it
could shear, resulting in some decreased efficiency in the
steering.
Accordingly, I find that the looseness of the stud
was a defect which could affect safety. (See, Pittsburgh and
Midway Coal Mining Company, 8 FMSHRC 4 (1986)). I thus find that
since the loose stud had not been corrected, the use of the truck
in question constituted a violation of Section 1606(c) supra.
2.

Emergency steering System.

The emergency steering system in .the vehicle at issue is
designed to operate automatically should there be an engine
failure.
According to Lauver, he asked the operator of the
truck to shut off the engine, and try the emergency system.
Lauver indicated that the operator attempted to activate the
system, but the steering wheel moved only an inch, and the wheels
did not move.

1382

Although · th·e · eme-rcjency system applies only when the engine
fails, it is nonetheless designed to provide limited steering
ability in the event of an engine failure. Since this emergency
feature did not work, it is conceivable that there could have
been ~ impact on safety, should the engine have failed. Thus,
under Section l606(c) supra, this condition should have been
corrected.
B.

. ~ignif icant

and Substantial

According to Lauver, a loss of steering control was
reasonably likely to have resulted in a collision with another
vehicle, since there was extremely heavy traffic on the haul road
in question. In this connection, Petitioner argues that, given
continued operation on bumpy roads, the cited loose ball stud
would become looser to the point where it would shear off, or
become detached. Petitioner also cites the loss of steering
control that would have occurred as a result of the inoperative
emergency system. I do not find much merit in Petitioner's
arguments.
·
The record before me establishes the following: (1) the
cited truck operates at a slow speed; (2) the lack of any crack
in the stud or in the frame; (3) the stud was securely attached
to the frame; and (4) the lack of any condition that would
indicate that engine failure was reaso~ably likely to have
occurred. Considering these facts, I conclude that it has not
been established that there was a reasonably likelihood for any
injury producing event as a consequence of the violative
conditions found herein. 3 (See Mathies Coal Co. 6 FMSHRC 1, 3-4
(1984); U.S. Steel Mining Co •• Inc., 6 FMSHRC 1834, 1836 (1984);
U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (1984}).
Accordingly, I find that it has not been established that the
violation is significant and substantial.
According to Lauver, the driver of the vehicle in question
told him that he was unaware that the stud was --loose, and that he
had not had the opportunity to report the lack of emergency
steering. There were no apparent problems steering the cited
truck . The loose stud was not obvious. Respondent's management
did not have notice or knowledge of the lack of the emergency
steering.
Based on these factors, I conclude that Respondent
3

It also has not been established that an injury producing
event was reasonably likely to have occurred as a result of the
lack of emergency steering. This system activates only when the
engine fails.- There is no evidence of the presence of any
condition that would have made it reasonably likely for the
engine to fail. Also, in the event of engine failure, an
emergency braking system allows the brakes to be operated 8 to 10
times.

1383

was negligent t~ ~ - l~ss than moderate degree. I find that a
penalty of $2.oo·. 00 is appropriate for this violation.
II.

Docket No . PENN 93-73, (Citation No . 3709641).

Accordingly to Lauver, when he inspected the 009 Pit on
September 15, 1992, he observed a fully loaded Caterpillar 777
rock truck. He said that he observed a very large rock balanced
on top of the l~ad. Lauver said that the rock was teetering back
and forth, and. appeared ready to fall. Lauver measured the rock
in question after it was dumped and found that it was 16 feet
long, nine feet wide, and 47 inches thick. Lauver issued a
citation alleging a violation of 30 C.F.R. § 77.1607(aa) which
provides as follows: "Railroad cars and all trucks shall be
trimmed properly when they have been loaded higher than the
confines of their cargo space."
James Hepburn, an MSHA inspector who was present at the site
on September 19, 19-92, corroborated Lauver's testimony, and
indicated that he observed the rock teetering when the truck
backed up.
Ronald L. Krise, Respondent's shift foreman, indicated that
he would have "tampted" the rock down (Tr . 142, March 8, 1994) to
make it settle on the truck bed. Richard OUFour, who was
operating a grader on September 19, observed the vehicle in
question from a point approximately 100 feet removed. He stated
that the rock on the truck was not swaying or teetering, but that
the truck "was rocking back and forth", as there were a few
"rough spots" on the road. (Tr . 154, March 8, 1994).
Based on the testimony of Lauver, corroborated by Hepburn, I
find that a rock 16 feet long, 9 feet wide, and 47 inches thick,
was higher than the cargo space of the truck.
The term "trimmed properly" as contained in Section
77.1607(aa) supra, is not defined in the Act, or Title 30 of the
Code of Federal Regulations. "Trim" is defined in Webster's
Third New International Dictionary (1970 Edition) ("Websters"),
as pertinent, as follows: "to reduce by removing excess or
extraneous matter." Hence, applying the common meaning of the
term "trim" I find that, the term "trimmed properly" means that
if a truck contains excess material that is over the height of
the cargo area, and is unstable, the material must be trimmed .
(See, Peabody Coal Company 2 FMSHRC 1072, May 7, 1990 (Judge
Laurenson); Power Operating Company, 16 FMSHRC 591 (March 23,
1994) (Judge Weisberger). I accept the testimony of Lauver, as
it was corroborated by Hepburn, and find that a large rock
extended abov e the cargo area, and was not stable. I thus
conclude that Respondent did violate Section 77.1607(aa) supra.
According to Lauver, the rock was teetering back and forth,
and appeared ready to fall. OUFour testified that when he
observed the truck traveling on the haul road, the rock was not
swaying or teetering. Krise opined that the rock was not likely

1384

to fall off .'Ji.ue._:t.o _.it..'s size, and the fact that it "was settling
into the soft material .• " (Tr. 145,· March .8, 1994). I accept the
testimony of Lauver, inasmuch as Hepburn corroborated that the
rock was teetering. I accept Lauver's opinion that due to the
way the rock was balanced, it could have fallen off at any time.
Lauver's testimony also was not contradicted that other vehicles
traveled the same road.
Within the_framework of this record, I find that as a
consequence o~ the violation herein, an injury producing event,
i.~., the rock in question falling off the truck, was reasonably
likely to have occurred. I also accept the uncontradicted .
testimony of Lauver that, due to the size of the rock, should it
have fallen, any person in the vicinity would have been crushed.
I conclude that ·the violation was significant and substantial.
(See, U.S. Steel supra).
Lauver indicated that within the preceding three months of
the issuance of the citation at issue, he had cited Respondent
three times under Section 77.1607(aa) supra •. He said that in
connection with the issuance of these citations, he had discussed
with Respondent's management the hazards of materials falling off
loaded rock trucks . He also met with the shqvel operators who
load the rock trucks, and explained to them the hazards involved
in loading trucks when materials no longer stay in the bed of the
truck. He also indicated that after each cited violation, he
discussed the issue of loading trucks with Krise. However, on
cross-examination, he indicated that the specific condition cited
herein was "unusual", and that none of the other citations that
he had issued were for the same condition. (Tr. 108, March 8,
1994).
Lauver also indicated that on the day of the inspection at
issue, he had a discussion with an individual at the mine who
informed him that "it was normal procedure to load the trucks in
this manner" (Tr. 98, March 8, 1994). Petitioner did not divulge
the identity of this individual claiming the informant's
privilege, and the claim of privilege was upheld. Petitioner did
not produce this individual to testify . Accordingly, I do not
place much weight upon this hearsay testimony.
According to Krise, it is not Respondent's usual procedure
to load trucks in the fashion the truck at issue was loaded.
Lauver also indicated that Kanour had told him that the shovel
operators would be disciplined "for this type of loading"
(Tr. 121, March 8, 1994). Krise indicated that once he saw the
rock on the truck he told the shovel operator who had loaded the
truck, that he had made a mistake loading it that way. Krise
also indicated that the positioning of the rock on the truck is
not the way operators are instructed to load a truck. He
indicated that there was no time to do anything about the
improperly loaded truck prior to the issuance of the order at
question. He testified that he would have made the rock more
stable had he been aware of the condition before it was cited.
Within this framework, I conclude that it has not been

1385

established. that there was any aqqravated conduct on the part of
Respondent. ·- · I ···thus -conclude that it has not been established
that the violation was the result of Respondent's unwarrantable
failure. (See, Emery Mining Corp., 9 FMSHRC 1997, 2203-2204
(1987)).
Since the violative condition was obvious, and could have
led to a serious injury, I find that a penalty of $2,000 is

appropr~ate.

~

III. Docket No. PENN 93-287, (Citation No . 3709741).
Lauver issued a citation alleging a violation of
30 C.F.R ; § 48.25(a), inasmuch as an employee of an independent
contractor, Michael Baney, working on the subject site, had not
received any newly employed miner training. Respondent has
conceded the violation. In light of this concession, and
considering the testimony of Lauver, I find that Respondent did
violate Section 48k25(a) supra.
According to Lauver, he testified that Baney was operating
the front-end loader in a "very hesitant manner", and that he
appeared inexperienced (Tr. 169, March 8, 1994). Lauver opined
that an operator of a front-end loader must be aware of the
specific hazards of operating at the subject s .i te. He explained
that the operator must keep in mind the positions of stationary
structures such as belts, and their supports. Also, one must be
careful not to run under the belt, and must be aware of the
presence of standing water located in a shallow pit near the end
of the belt. Lauver also noted the hazards of driving on the
road in the area in question which he indicated was not level.
Section 48.25(a) supra, provides, in essence, that a newly
employed inexperienced miner shall be given eight hours of
training before he is assigned to work duties. The training
consists of the following: "Introduction to work environment,
Hazard recognition, and Health and safety aspects of the tasks to
which the new miner will be assigned . The employee in question
did not receive this training, due to a mistake. However, he was
given, along with three other individuals, newly employed
experienced miner training. Section 48.26 provides, in essence,
th~t newly employed experienced miners shall receive, inter alia,
the following training before being assigned to work duties:
Introduction to work environment. Mandatory health and safety
standards. Transportation controls, conununication systems, and
Hazard recognition.
Larry Kanour, Respondent's safety director,
indicated that he did provide such training. There are no
specific facts in the record to predicate a finding that, as a
consequence of the lack of the eight hours of inexperienced miner
training, there was a reasonable likelihood of an injury
producing event. Although Baney may not have been operating the
loader properly, the initial eight hours of inexperienced miner
training would not have covered instruction in this area. Thus,
I find that it has not been established that the violation was
significant and substantial (See, U.S . Steel, supra.)

1 386

On the·:. .d ay ··of--the· initial training, Kanour had a telephone
conversati on with Allen Albert, the independent contractor
(Albert Contracting).
Albert explained that he was sending two
additional men for training, one of whom, Baney, was subsequently
cited in the citation at issue, and that these men needed newly
employed experienced miner training. Kanour indicated that
Albert told him, that these two men had worked for him, and they
were experienced in working as operators of loaders, dozers and
trucks . Kanour- said that he asked Albert if he had the
certificates for these men and Albert indicated in the
affirmative. Kanour did not ask Albert to produce these
certificates.
According to Kanour, when the men arrived for the training,
he asked them the level of their experience and they "replied the
same way" (Tr. 205, March 9, 1994). Kanour indicated th~t he
asked these men whether they had MSHA training, and they
indicated that they had eight hours of annual training.
I observed Kanour's demeanor and found him credible in his
testimony on these matters, and I accept his version. Within the
above framework, I conclude that Respondent was negligent to a
less than moderate degree.
I find that a penalty of $50 is
appropriate for this violation.
IV.

Docket No. PENN 93-165. (Citation No. 3709742).

On November 19, 1992, Lauver tested three occupations for
exposure to coal dust . one of the occupations tested was that of
plant operator. According to Lauver, he asked the plant operator
where he spent most of his time . The operator showed him a stool
located in front of the control panel in the control room on the
second floor of the preparation plant . Lauver then placed a dust
collecting device on a small bench or ledge within two feet of
the stool . Lauver indicated that the stool was 2 1/2 to 3 feet
high,. and the bench or ledge was 4 feet off the ground.
Lauver estimated that the plant operator spent over half his
time in the control room monitoring controls . Lauver indicated
that he decided not to place the sampling device on the person of
the operator. Lauver reasoned that since the operator did not
remain in one place, if he were to wear the sampling device , it
could get dumped by accident, thus void ing the sample. He said,
in essence, that it is MSHA policy to e i ther place the sampling
device on a miner, or in the dirtiest place that he is exposed
to.
Sample ~ust collection over five consecutive days indicated
an average concentration of 2.1. milligrams of respirable dust per
cubic meter of air. Lauver issued a citation alleging a
violation of 30 C.F.R. § 71.100 which requires the maintenance of
"· •• the average concentration of respirable dust in the mine
atmosphere during each shift to which each miner in the active

1387

working is ~~gsed.. ~t .or below 2.0 milligram of respirable dust
per cubic meter of air."
Gary Crago, the assistant manager of the preparation plant,
indicated that the plant operator has the responsibility of
overseeing the operation of the plant. In essence, he said that
normally the operator spends 5 minutes each hour in the control
room, but that he can spend up to 15 minutes if there is a
problem with ~ pump.
He indicated that aside from checking the
controls in the. control room, the operator also checks the belts,
hoses, and all machinery.
In essence, Section 71.100 supra, provides for the
maintenance of coal dust in concentrations at or less than 2.0
milligrams per cubic meter of air in the mine atmosphere "· ••
during each shift to which each miner in the active work~ngs is
exposed." Hence, the critical question is whether the samples
collected from a ledge in the control room represented the
average concentration of dust "during e~ch shift" to which the
plant operator was exposed while in the active workings i.~., the
control room . 4 In other words, at issue is the amount of time
during each shift that the plant operator spent in the control
room.
Lauver did not testify based upon any personal knowledge
of the amount of time the plant operator actually spent in the
control room. I do not accord much weight to Lauver•s hearsay
testimony that the operator told him5 that he spent most of his
time in the control room sitting on the stool. Crago indicated
that in normal operations, the operator does not remain in the
control room, but goes in and out. I found his testimony
credible based on my observations of his demeanor. Within the
framework of this evidence, I conclude that it has not been
established that the atmosphere tested, i.~ . , the control room,
was the atmosphere in which the plant operator was exposed for
all, or a significant portion of the shifts tested. 6

4 "Active workings", is defined in 30 C . F~ R . § 71.2(b) as
"any place in a surface coal mine or the surface area of an
underground coal mine where miners are normally required to work
or travel" (Emphasis added).
5

The operator was not called to testify.

6

In essence, Petitioner argues the inspector had the
discretion to place the testing device at a location representing
the maximum concentration of dust to which the operator was
exposed, i.e., in the control room. Petitioner's cites 30 C.F.R.
§ 71.208(g) (2) to support its position.
I reject Petitioner's
argument since 30 c.F.R. § 71.208 pertains to bimonthly sampling
by the operator of designated work positions. As such, Section
71.208(g) (2) supra, does not control the location of a testing
device placed by an MSHA inspector in determining whether an
operator is in compliance with Section 71.100, supra .

1388

Accordingly., I find that it has not been established that
Respondent violated~ection 71.100 supra. Therefore, Citation
No. 3709742 i s to be vacated.

v.

Citation No. 3709806, COocket No. PENN 93-287)).

The parties stipulated .that the disposition of Citation
No. 3709806 will depend entirely on my decision regarding
Citation No. 3709742. I found that Citation No. 3709742 is to be
vacated, (IV, ~ i'llfra). Hence, consistent with this finding, and
taking into account the parties' stipulation . I find that
Citation No. 3709806 is to be vacated.
VI.

pocket No . PENN 93-386 (Citation No. 3709996).

On April 28, 1993, at approximately 7:00 a.m., MSHA
inspector Perry Raymond McKendrick, observed a road or ramp,
that he estimated was elevated 20 feet, that did not have any
berms on the outer_ bank for the entire approximately 100 feet of
the road . He issued a citation alleging a violation of 30 c.F.R.
§ 77.1605(k) which provides as follows:
''Berms or guards shall
be provided on the outer bank of elevated roadways."
According to Robert Greenawalt, Respondent's foreman, on
April 28, 1993, at approximately 6:00 or 6:30 a.m., he had
assigned a bulldozer operator to make a ramp for drill trucks to
travel to "the drilling area" (Tr. 211·, March e, 1994) . The ramp
was only to be used for l-2 days as is the .practice with this
type of ramp. He indicated that the outside edge of the ramp was
approximately one to two feet higher than the inside edge . He
estimated that the ramp was between 15 and 20 feet wide. He
opined that it was safe for drill rigs to travel the ramp. He
said that the road gradually sloped from the outside to the
inside. He described the outside edge as being compacted from
the tracks of the bulldozers, for the entire length of the road.
The plain language of Section 1605(k) supra, provides that
berms shall be provided on the outer bank of ~levated roadways .
Since the roadway at issue was elevated, and did not have any
berm or guard, I find that Respondent did violate Section 1605(k)
supra. 7
·
According to McKendrick, due to the violation herein, it was
reasonably likely that a vehicle would have run off the roadway
because the outside edge contained loose consolidated material,
and it was standard procedure for trucks to travel on the left
7

I reject Respondent's argument that Section 1605(k) does
not apply as the ramp in question was only "a temporary access
ramp." Since the ramp was traversed by trucks as a path to the
drill site, I find that it constituted a roadway as that term is
commonly understood (See, Webster's New Collegiate Dictionary, at
at 993 (1979 ed~)).

1 389

side. He indicated that two drill trucks could not pass side by
side on the -roa-d.' -lte- also noted that one truck that traveled
this ramp had a loose tie-rod. He opined ·that should a vehicle
run off the road, the operator of the vehicle could possibly
suffer broken bones in an extremity.
The record does not establish, by way of actual measurement,
the width of the vehicles that traverse the road, and the width
of the road. Nor does the record establish that the road was
slick or slipp~f'y, or that vehicles traveling the road would not
have had good traction. Further, McKendrick indicated that there
was not a sharp drop off from the road. McKendrick indicated
that the outside edge of the road contained loose unconsolidated
material. I observed the demeanor of the witnesses, and found
Greenawalt's testimony more credible that the outside edge was
one to two feet higher than the inside edge, and the outside edge
was compacted from the tracks of the bulldozer. Within the
framework of this record, I conclude that it has not been
established. that an injury producing event was reasonably likely
to have occurred. I thus find that it has not been established
that the violation was significant and substantial.
I find Greenawalt's testimony reliable that on April 28,
1993, between 6:00 and 6:30 a.m., he had ordered the construction
of the ramp at issue, and that he did not see the ramp until it
was cited at 7:30 a.m. I further find Greenawalt's testimony
credible that had he observed the road beforehand, and noted that
it did not have a berm, he would have required that a berm be
provided. I find that Respondent was negligent to only a low
degree·. I find that a penalty of $50. 00 is appropriate.
VII.

Docket No. PENN 93-386 (Citation No. 371000).

On April 28, 1993, McKendrick, while driving onto a roadway
to the highwall, observed three fist sized rocks falling in the
air. He said that they landed on the roadway six feet out from
the highwall. McKendrick indicated that the rocks rolled six
more feet on the road.
McKendrick described the highwall as being 300 feet long,
and containing loose rock along the top edge and face . He said
that there was loose material "like a roll of dirt" along the top
edge (Tr. 26, March 9, 1994). According to McKendrick, there
were rocks on the highwall that ranged in size from smaller up to
larger pebbles that were one foot in diameter. He also said that
there were loose rocks on the face. However, on cross-examination
he agreed that the highwall could not be characterized as "Loose
unconsolidated material" (Tr. 39, March 9, 1994).
McKendrick issued a citation alleging a violation of
30 c.F.R. § 77.1001 which provides that "Loose hazardous material
shall be stripped for a safe distance from the top of pit or
highwalls, and the loose unconsolidated material shall be sloped
to the angle of repose, or barriers, baffle boards, screens, or
other devices be provided that afford equivalent protection."

1390

Greenawalt· ~estif ied that on the day the citation was issued
he did not see any loose material. He also indicated that in his
daily inspections of the highwall during the previous six months,
he had not observed any loose material . I find Greenawalt's
testimony insufficient to contradict McKendrick's specific
testimony that he saw three rocks falling, that these rocks fell
within six feet of the highwall, that there were loose rocks
along the top edge and the face of the wall, and there were loose
rocks on .the face . Based upon the testimony of McKendrick, I
conclude that -on the date cited, loose hazardous materials were
present on the highwall. There is no evidence that the mat~rials
were either stripped, sloped, barricaded or that other devices
were provided that afforded equivalent protection . Hence, I find
that Respondent did violate Section 77.1001 supra.
McKendrick indicated that trucks on the site in question
drive on the left side of the road. He opined that a rock
falling from the highwall could have hit a wind~hield, or gone
through a window of a truck traveiing on the road below the
highwall. He opined th~t should such an event have occurred, it
could have resulted in a broken arm, abrasions, or scratches . He
opined that such injuries were reasonably likely to have
occurred, as he observed rocks falling off the wall. He also
noted that the road in question is heavily traveled . According
to the uncontradi cted testimony of Greenawalt, although the pickup trucks and service trucks that travel this road do not have
canopies, rock trucks and coal trucks, which are the most common
vehicles on the road, are equipped with canopies. These extend
approximately one-half to two feet beyond the windshield . Also,
these vehicles have guards over the driver ' s door that extend ·
about one foot.
The record does not indicate the amount and location of
loose material on the wall, or on the top. Within this framework
I conclude that although an injury producing event was possible,
it has not been established that it is reasonably likely to have
occurred. Thus , I find the violation was no~ _ significant and
substantial.
McKendrick opined that the loose rocks should have been seen
by the foreman, or the safety director, who travel along the road
once a day. However, McKendrick who traveled on the same road
earlier that morning, had not noticed the cited conditions at
that time. I thus find that Respondent's negligence herein was
moderate . I conclude that a penalty of $400.00 is appropriate
for this violation .
VIII • . Docket No. PENN 93-386 (Citation No. 3715154) .
Mervin M. Himes, an MSHA inspector, testified that on
April 28, 1993, he was informed by an employee of Respondent that
a windshield wiper on the driver ' s side of a bus did not work .
According to Himes, at approximately 1:00 p.m., he observed this
bus parked at least 100 feet from the changing rooms. According

1391

to Himes, he was told that this bus was used to transport
employees fr-oln ·the -changing room to the pi_t area.
Himes stated that he inspected the bus, and the windshield
wiper "would not activate" (Tr. 61, March 9, 1994). Himes stated
that he looked through th~ windshield from the inside of the bus,
and there was dust on the windshield, and the visibility was
"poor" (Tr. 65, March 9, 1994). He also indicated that there
were "real dust.y conditions" (Tr. 65, March 9, 1994). He opined
that because o~ -the dust on the windshield, the operator of the
bus would have impaired vision, and "it could create a hazard"
(Tr. 65, March 9, 1994).
He also noted that due to the absence
of a wiper, should it rain, the driver's vision would be
·
impaired.
He issued a citation alleging a violation of
Section 77.l606(c) supra.
Himes did not see the bus in operation on the day he- issued
the citation. According to Greenawalt, had it rained, another
bus parked within 3~0 yards from the bus in question would have
been used to transport miners, as the cited bus is not used when
it rains. Greenawalt also indicated that wipers are not used
when there is dust on the windshield, as the windshield could get
scratched. He also opined that~ in general, when the bus is
being driven, operators of trucks and other equipment that kick
up dust would be in the bus, thus reducing dusty conditions.
I accept the uncontradicted testimony of Himes that the
windshield wipers on the driver's ~ide did not work. Hence, it
would not have been possible to clear dust from the windshield
with the use of the windshield washer. Therefore, the operator's
vision would have been diminished to some degree. Clearly safety
can thus be affected. In the same fashion, it is possible that
the bus c~uld suddenly be exposed to falling rain while being
operated, thus causing the operator to suffer from some degree of
diminished vision. I thus find that Re_s pondent herein did
violate Section 77.1606(c) supra.
According to Himes, because the violative- condition cited
causes diminished visibility, it was reasonably likely that an
accident could have resulted inasmuch as other vehicles travel
the same road as the bus in question. Himes opined that should
such an accident have occurred, a broken arm or leg or laceration
would have resulted. He opined that an accident was reasonably
likely to have occurred.
Greenawalt indicated that although the bus is used twice a
shift, in general, it is used for a total of only 1/2 hour a day.
Within the above framework, I conclude that although an
injury producing event could have occurred, there is a lack of
evidence that such an event was reasonably likely to have
occurred. Accordingly, I find that the violation was not
significant and substantial.

139 2

Accordi.ng -to Himes, one of Respondent's employees told him
that, in essence, the wiper blade had not been in operation "for
days." (Tr. 77, March 9, 1994). Greenawalt indicated that, in
general, the bus does not operate in the rain. I find
Respondent's negligence to have been moderate. I find that a
penalty of $500.00 is appropriate for this violation.
IX.

Doc~et

No. PENN 93-386, · (Citation No. 3709681).

One of Respondent's O&K shovels is used in the pits to load
various trucks. Partash testified that on April 28, 1993, as
part of his inspection, he sat on a seat located in the rear of
the cab shell (Cab) of the shovel behind the operator's seat. He
stated tnat the shovel was shaking back and forth, and up and
down. He indicated that 3 out of the 6 bolts that attached the
cab of the shovel to the mainframe, were loose. He opin~d that
because of the shaking, the operator of the shovel could be
injured. Partash also was concerned that the cab itself might
be torn loose. He-issued a citation alleging a violation of
30 C.F.R. §77.1606(c) supra.
Richard OUFour, who was operating the shovel when it was
cited by Partash, testified, in essence, that although the cab
shell would move "a little bit" (Tr. 150, March 9, 1994) it did
not impair his ability to operate the shovel. He opined there
was no danger of the cab falling off.
Bratton, who helped erect the shovel in question when it
came from the manufacturer, indicated that the cab shell is five
feet wide, and 10 feet long. He said that eight bolts inserted
through a two inches wide horizonal member located on the bottom
of the cab, attaches the cab to the mainframe of the shovel. Due
to the extent of Bratton•s experience with the shovel, I accord
considerable weight to his testimony as to its physical
characteristics. In contrast, I place less weight on the
testimony of Partash whose testimony was based upon the
recollection of one inspection almost a year prior to the
hearing. I thus find that the cab shell was attached to the
shovel mainframe by eight bolts, but thr~e of these were loose.
I accept the testimony of Partash that the cab shell was shaking,
inasmuch as this testimony was not contradicted by OUFour.
Bratton explained that if the cab was vibrating up and down a
~arter of an inch, it would bounce on -the rubber strip upon
which it was seated. He also indicated that there was no danger
of the shell coming off, as it was still attached by five bolts.
However, since three of the eight bolts attaching the cab shell
to the platform of the shovel were not secured, and since the cab
shell was v~brating, it is possible that, over time, other bolts
could work loose due to the vibration which could in turn
exacerbate. In this situation, an injury to the operator could
possibly result. I thus find that the loose bolts were defects
that did affect safety. I conclude that Respondent did violate
Section 1606(c), supra.

1393

In essence., ··Part-ash testified that since the shovel is used
24 hours a day, 7 days a week, an injury to the operator as a
result of the vibration of the cab shell was reasonably likely to
have occurred. However, the shell was still secured by five out
of eight bolts, and the bottom edge of the shell was seated on a
rubber strip. In this context, I conclude that a reasonably
serious injury was not reasonably likely to have occurred.
According to Partash, the operator of the shovel told him
that the probl-em with the bolts was reported to management on
February 24, 1993. DuFour, the operator, indicated that he had
reported -loose bolts in the daily sheet. However, he indicated
that the three bolts by the door that were loose or broken on the
day the citation was issued, were not loose the day before "that
I can recall." (Tr. 153, March 9, 1994). I find that
Respondent's negligence herein was moderate. I find that a
penalty of $200 is appropriate for this violation.

x.

Docket No. PENN 93-166 (Citation No. 3490532).

On December 3, 1992, Partash inspected a caterpillar grader.
When the operator lifted up the front of the grader, it rose an
inch and a half before the four wheels rose. Partash said there
was excessive play where the vertic~l kingpins attached the axle
to the front wheels. He opined that because of this play, it was
possible that the wheels could come off, as the grader travels
over rough haul roads.
He also observed engine oil leaking from
the fuel line onto the hot engine. He opined that this condition
created a possible fire hazard . In addition, he observed an
accumulation of hydraulic oil under the cab, and on the hydraulic
tank. He described the ·o il accumulations as follows: "It was a
coating to a dripping running off of the tank in the lines" (sic)
(Tr. 172, March 9, 1994). He indicated these conditions also
contributed to a fire hazard. Additionally, he stated that the
operator had to keep fiddling with both door handles of the cab
in order to open these doors.
He opined that in an emergency
such as a fire it would be difficult for the operator to open the
doors quickly and escape . Lastly, the wiper blade for the lower
.l eft window on the grader was missing. The top of this window
was about the same level as the seat upon which the .operator
sits. Partash opined that because the wiper blade was missing,
there would not be adequate visibility for the operator to
operate the grader. Partash issued a citation for all these
conditions citing a violation of 30 C.F.-R. § 77.l606(c).
Bratton, who worked on the grader the day it was cited,
indicated that he did not have any problems steering it. Muth, ·
who repaired the vehicle in question, indicated that the kingpins
in question were covered by retainer caps at the top and bottom,
and were secured by bolts.
He said that although the kingpins
were worn, they were not near the breaking point. Muth indicated
that, after the grader was cited, he replaced the bearings,
kingpins, seals, caps, and bolts.

1394

Brattoa... indicatecl that he observed just a few drops of
engine oil seeping down the side of the engine, but that no oil
was spraying out under pressure. He did note that there was oil
running on the side of the block. He opined that there was no
·hazard. Muth observed that there was an oil leak from or near
the injectors. He indicated that the oil was not pressurized.
He said that the turbo and exhaust were on the other side of the
engine, approximately 20 inches away. He also observed hydraulic
oil beneath tne-cab, on a "couple" of hydraulic lines, and
"occasionally•t dripping off the pilot control system (Tr. 265,
March 9, 1994).
Bratton indicated that the left front window which did not
have a wiper blade, is used to view the road when grading. He
also indicated that the window can be opened. Bratton also
indicated that he inspected the door handles, and found ~hat the
linkage was worn, and that accordingly there would be excessive
movement in the door handle.
Based on the testimony of Partash, that in the main was not
contradicted or impeached, I find that, when cited, the grader
had the following defects: play between the front wheel and
axle, an engine oil leak, a hydraulic oil leak, a missing wiper
blade, and two door handles that were difficult to open from the
inside. Essentially for the reasons stated by Partash, I
conclude that these conditions can possibly have an affect on
safety. I thus conclude that Respondent did violate Section
77.l606(c) supra.
I find that the worn/loose kingpins was a violative
condition that was significant and substantial. My conclusion is
based on the following factors: the constant use of the grader,
the road conditions, and the volume of other traffic in the areas
the grader traveled. In addition, the violative oil leaks were
significant and substantial. My conclusion is based upon a
finding that oil was leaking on a hot engine. 8 The likelihood
of serious injuries in the event of a fire is _ ~xacerbated by the
violative conditions of both doors, which would delay the
.operator's exit from the cab .
According to Bratton, operators of the grader at issue are
to indicate on a form under the section headed "REPAIRS NEEDED"
when repairs are needed on the grader . (See, Government Exhibits
26, 27). These forms, contain the following notations for the
following dates: ll/ll "Hyd leak"; 11/13 "Hyd leak"; ll/15 "Hyd
oil leak under cab"; ll/16 "Hyd leak"; ll/20 -"Injector leaking
fuel on motor"; 11/24 "Hyd hose leaking", "Injector leaking";
11/12 "door _handle mess up" (sic); ll/13 "door handle mess up"

8 I accept Partash's testing in this regard as it was not
specifically rebutted or contradicted by Respondent's witnesses.

1395

(sic)i 11/15 "door handles"; 11/16 "doors handle mess up" (sic);
ll/20 "door.'-lat-c hes ·needs fixed" (sic); 11/ 24 "door latches are
hard to get open" ; ll/ll "need bottom wipers left side"; 11/ 12
"Need bottom wipers"; ll/13 "need bottom wipers"; ll/15 "wiper
missing;" ll/16 "need bottom wipers." (Gov't Exhibits 26, 27)
Bratton indicated that the clip securing the blade to the
wiper often breaks, and that he has replaced them more than once
on the same shift.
There is no evidence that any of the conditions reported in
the forms were repaired prior to the issuance of the citations at
issue. Within this framework, I conclude that Respondent's
negligence herein regarding the violative defects pertaining . to
the doors , oil leaks, and wiper blade was more than ordinary
negligence, and constituted aggravated conduct. (See, Emery
Mining Corp., 9 FMSHRC 1997 (1987)). Thus, I find that the
violation herein resulted from Respondent's unwarrantable
failure . (See, Eniery, supra). I find that a penalty of $7000 is
appropriate.
XI.

Docket No. PENN 93-386 (Citation No. 3709684).

Respondent utilizes a water tank, transported by a
caterpillar engine, on all its roads to control dust. The water
. tank has a capacity of approximately seven thousand gallons of
water, and weighs approximately 25 tons. It is welded to frame
rails that surround it on the top and bottom. The rails support
the tank on the main body of the equipment.
Partash testified that he observed water "squirting"
(Tr. 11, March 10, 1994) out of the frame rails. He said that he
observed four cracks on both sides, approximately three to four
inches long, where the frame and tank met. He was concerned that
if the equipment should bounce wh ile being transported, the tank
could break free of the front of the machine, especially
considering the heavy weight of the water when the tank is
full. Partash issued a citation alleging vioiation of 30 C. F.R.
§ 77 . 1606(c).
·
Greenawalt stated that after repairs had been made to the
tank after it was cited, he did not observe the cracks that were
cited. He indicated that the rails do not contain any water. He
said that the tank was welded all around its perimeter, and the
welds were solid.
He said neith·e r the frame rails nor the tank
was bowed and there was nothing to indicate that the frame was
breaking.
I resolve the conflict in the testimony regarding the
existence of ' cracks, in favor of Partash, as I give more weight
in this instance, to his disinterested testimony in his capacity
as an MSHA inspector (See, Texas Industry, Inc., 12 FMSHRC 235
(February, 1990) (Judge Melick)). It thus is possible,
considering the weight of water being transported, that, over
time, the cracks might spread and endanger the integrity of the

1396

members supporting_ t;:t:i~ tank, and the tank could fall, and
possibly ca\ise·--a.n injury. I thus find that the violation herein
did, to some degree, affect safety, and hence Respondent did
violate Section 77.l606(c) supra.
Considering the fact that the tank was welded to a support
frame over its entire perimeter, and the welds were intact, I
find that any injury producing event was not· reasonably likely to
have occurred. I thus find that the violation was not
significant anq substantial.
According to Partash, he observed water squirting out and
that this should have been seen by anyone. However, such a ·
squirting of water would have alerted a person to a possible leak
in the tank, but would not have alerted a person necessarily to a
crack in the weld or supporting frame which do not contain water.
I thus find that Respondent's negligence herein was less than
moderate . I find that a penalty of $50 is appropriate for this
violation.
XII.

Docket No. PENN 93-360

The parties stipulated as follows: (l) an independent
contractor employee, John Leitzinger was injured on February 6,
1993; (2) Leitzinger was an employee of the independent
contractor, J.E.M . , Inc . ,; (3) the injured miner was a welder for
J.E.M.; (4) Leitzinger was injured on the first day of the job
with J.E.M.; (5) Leitzinger was injured on the first day on Power
Operating property; (6) the injured miner had 22 years of
experience welding in the strippings (surface coal mining); (7)
Leitzinger had probably been laid off within the last 2 years·;
(8) the injured miner had a valid annual refresher training; (9)
the injured miner had not been provided any hazard or newly
employed experienced miner training upon starting employment with
J.E.M.
Partash explained that Leitzinger was injured while lifting
a piece of steel with a chain and boom truck.-- According to
Partash , the chain hook either slipped or opened up, and the
steel fell on Leitzinger dislocating his shoulder and breaking
his hip. Partash said that Leitzinger had received annual
refresher training at another mine more than a year prior to
the accident. He issued Order No. 3490538 alleging a violation
of 30 C. F.R. § 48.3l(a) ,· and Order No. 3490539 alleging a
violation of 30 C.F.R. § 48 . 28(a) . 9
On August 31, 1993 Partash modified Order No. 3409539 to
allege a violation of 30 c . F . R. § 48.26(a) instead of section
48.28(a) supra . At the hearing, Respondent's motion to dismiss
this order on the ground that it was modified after the petition
and answer were filed, was denied. Petitioner's motion to amend
its petition was granted .
9

1397

-··· .: -· A• · Order No. 3490538.
In its brief, Petitioner moved to vacate Order No. 3490538
on the ground that the issues presented in this order were
litigated and decided in L & J Energy Company. Inc., 16 FMSHRC
424 (February, 1994) (Judge Weisberger). For the .reasons set
forth i~ L & J supra, Petitioner's motion is granted.
B.

Order No. 3490539

Because Leitzinger, a newly employed experienced miner, did
not receive training pursuant to Section 48.26(a), I find
Respondent did violate Section 48.26 supra.
According to Partash, this violation resulted from
Respondent's unwarrantable failure in that a sign posted .at the
entrance to Respondent's mine states that all persons must be
trained. In addition, he referred to the fact that Respondent
had been cited with1n the past year for failure to train
independent contractors• employees.
Kanour, testified that in the first part of January, 1993,
he notified J.E.M. of the training required to be provided of
their employees. He also said that the Wednesday prior to the
Saturday when Leitzinger was injured, he checked all J.E.M.
training records, and their employees were in compliance. Kanour
testified that he was on the site the day of the accident, but
did not see Leitzinger on the site prior to the accident. He
said that he had seen him prior to the accident, he would have
provided him with hazard training. Bratton, testified that on
the Friday prior to the accident, he told John Wilkinson, an
agent of J.E.M., that repairs were needed to be made to a boiler,
• and a truck. · He asked the latter to send him a list indicating
which employees were to work on which equipment. Bratton stated
that he received this list on late Friday, but that Leitzinger•s
name was not on the list. Also, he stated that on the day of the
accident a J.E.M. supervisor reported to him, and he met the crew
from J.E.M. He said that specifically he never saw Leitzinger
prior to the accident.
Based upon the testimony of Respondent's witnesses, that was
not contracted or impeached, I find that Respondent's conduct
herein was not aggravated, and thus was not the result of its
unwarrantable failure (See, Emery, supra).
Partash in explaining the injury to Leitzinger stated that
"it appears" that he was in the process of lifting up a piece of
steel with a _chain, and "it appears" that either the chain hook
slipped, or the chain hook opened up causing the steel to fall on
him. (Tr. 82, March 10, 1994). There is no other evidence in
the record contradicting or impeaching this testimony, and I
accept it . I find that there is no nexus between the hazardous
conditions that caused the accident, and th~ specific subject

139 8

matter that- woul"d nave been covered in the newly employed
experienced miners training (See, 30 C.F.R. I 48.26{b) 1-8:
Government Exhibit 45, pg. 4-5). In this context, I find that
the violation was not signi~icant and substantial (c.f., Mathies,
supra). I find that a penalty of $300 is appropriate for this
violation.
XIII. Citation No. 3490513 (Docket No. PENN 93-221. and
Citation Nos. 3715153 and 3715236 (Docket No. PENN 93-386).
Subsequent to the hearing, Petitioner filed motions to
approve settlement agreements that were negotiated by the
parties. A reduction in total penalties from $10,438 to $4,893
is sought. I have considered the representations and
documentation presented in these mQtions, and I conclude that the
proffered settlements are appr~priate under the criteria--set
forth in Section llO{i) of the Act. Accordingly, the motions to
approve settlement_ are GRANT.ED.
XIV. Citation Nos. 3709682 and 3709693 CDocket No. PENN 933861.
The parties stipulated at the hearing, that these two
citations involve the same piece of equipment, and almost
identical facts as those cited in Citation No. 3709821 which was
previously heard by me in December 1993 as part of Docket No.
PENN 93-152. The parties further stipulated that the evidence
they were to present regarding Citation Nos. 3709682 and 3709683
would essentially be the same as that p~esented in the hearing
regarding Citation No. 3709821.
Based on these stipulations, and for the reasons set forth
in my decision regarding Citation No. 3709821 (Power Operating
Co., 16 FMSHRC 591, 596-597 (March 1994)), I find that a
violation has not been established regarding Citation Nos.
3709682 and 3709683, and they should be DISMISSED.
ORDER

It is ordered as follows:
l.

The following orders/citations are to be dismissed:
3709742, 3709806, 37090538, 3709682 and 3709683.

2.

The following order/citations are to be amended to
reflect the fact that the violations cited therein are
not significant and substantial: 3490508, 3709741,
37~9996, 3710000, 3715154, 3709681, 3709684, and .
3490539.

3.

The following orders are to be amended to reflect the
fact that the violations cited are not the result of
Respondent's unwarrantable failure: 3709641, and
3490539.

1399

4.

Respondent-shall within 30 days of this d~cision, pay a
total civil penalty of $11,643. ·

kis~

Administrative Law Judqe
Distribution:
Linda Henry, Esq., Office of the Solicitor, u.s. Department of
. Labor, 3535 Market Street, Room 14480, Philadelphia, PA 19104
(Certified Mail)
Tim D. Norris, Esq., and Farrah Lynn Walker·,· Esq. , Stradley,
Ronon, Stevens & Younq, 2600 One Commerce Square, Philadelphia,
PA 19103-7098 (Certified Mail) /efw

.1400

ADMINISTRATIVE LAW JUDGE ORDERS

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

J une 15 , 1994

SECRETARY OF Ll\SOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

CIVIL PENALTY PROCEEDING
:

Docket No. WEST 94-213-M
A. C. No. 05-04245-05506

v.

KIEWIT WESTERN COMPANY,
Respondent

Universal Portable Crusher

DECISION DISAPPROVJNZ SFi'MT·'f!MENT
ORPER TO SUBMIT JNFQRMA.TXON
Before:

'1'udge Merlin

This case is before me upon a petition for assessment . of
civil penalties under section lOS{d) of the Federal Mine Safety
and Health Act of 1977~
The Solicitor has filed a motion to approve settlement for
the two violations · in this case. A reduction in the penalties
from $4,267 to $1,267 is proposed. The Solicitor proposes to
reduce the p~nalty for one of the violations, Citation No.
4335289, from $4,000 to $1000. With respect to the remaining
violation, the operator has. agreed to pay the proposed penalty in
f u ll.
Citation No. 4335289 was issued for a violation of 30 C.F.R.
56.12016 because the control circuit was not locked out while
maintenance work was performed. The violation contributed to a
moving machinery accident, which caused injuries to an employee's
arm.
The basis given for the reduction. is that negligence was
less than originally thought. According to the Solicitor, the
operator had implemented safe operating procedures which had in
fact been utilized prior to the accident. The Solicitor states
that the accident can be attributed to a "communication mix up".
However, the Solicitor does not explain what this "communication
:mix up" was, who was involved, and why it is not attributable to
the operator-.
§

1 4 01

The Sol·icitor -is- -:reminded that the Commission and its judges
bear a heavy responsibility in settlement cases pursuant to
section llO(k) of the Act. 30 U.S.C. § 820(k); ~' s. Rep. No.
95-181, 95th Cong., 1st Sess. 44-45, reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health
Act of 1977, at 632-633 (1978). It is the judge's responsibility
to determine t~e appropriate amount of penalty, in accordance
with the six c~i~eria .set forth in section llO(i) of the Act.
30 U.S.C. § 820(i); Sellersburg Stone Company v. Federal Mine
Safety and Health Review Commission, 736 F.2d 1147 (7th Cir.
1984) .
Based upon the Solicitor's motion, I cannot properly discharge my statutory responsibilities because I have not been
given sufficient information upon which to conclude that the
recommended penalty of $1,000 for Citation No. 4335289 is appropriate under the six criteria of section 110(i).
"

In light of the foregoing, it is ORDERED that the motion for
approval of settlement be DENIED.
It is further ORDERED that within 30 days of the date of
this order the Solicitor submit additional information to support
his motion for settlement. Otherwise, this case will be set for
further proceedings.

----.--

,

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Douglas White, Esq., Counsel Trial Litigation, Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Arlington, VA 22203
Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
James A. Lastowka, Esq., McDermott, Will & Emery, 1850 K Street,
N.W., Washington, D.C. 20006
-jhe

1402

.FEDERAL .MINE SAFETY AND HEA'-TH REVIEW COMMISSION

....

- - - '1730 K STREET NW. 6 TH FLOOR
WASHINGTON, 0.C.

20006

June 16 , 1994

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATIQN (MSHA)

Petitioner

v.
CONSOLIDATION COAL COMPANY,

Respondent

.
..
.
...•

CIVIL PENALTY PROCEEDING

Docket No . WEVA .94-57
A. C. No. 46-01968-04121
Blacksville No. 2 Mine

ORDER DENYING MOTION TO CONSOLIDATE
ORDER DENYING MOTION TO EXPEDITE PROCEEDINGS
ORDER DENYING MOTION TO VACATE
ORDER CONTINUING STAY

on February 22, 1994, this case was stayed on a motion by
the operator pending the c·o mpletion of MSHA • s special investigation under Section llO(c) of the Act.
On June 13, 1994, operator's counsel filed a motion to
consolidate, motion to expedite and motion to vacate the stay.
Counsel advises that · on or about May 23, 1994, three Consolidation Coal employees were informed by MSHA that as a result of
the llO(c) investigation, MSHA proposed to specially assess civil
penalties against them as individuals. Apparently, there has
been a health and safety conference, but according to counsel the
conference officer did not have the authority to terminate the
~lO(c) proceedings . · counsel seeks to consolidate this case with
any proceedings against the employees.
As grounds for her motions,- counsel · asserts that the employees ~ontest the underlying 104(d) (2) order. She argues that in
light of potential personal liability resulting from a llO(c)
proceeding, an expedited hearing is necessary. She states that
the employees desire a prompt hearing without waiting for the
penalty assessment and that Consolidation concurs with the
request of the employees. And she tells me that Commissi on
judges are mandated to exercise their informed discretion when
considering all motions for expedition.
The motions are misplaced and premature. Counsel wishes to
consolidate this matter with llO(c) proceedings that have not yet
· been initiated before the Commission. Indeed, she does not
advise whether the individuals involved have filed a request for
a hearing with the Secretary and she offers no proof that they
have designated her as their representative. No indication is
given how this case can be consolidated with one that thus far
has not been filed . Without such a filing there is no way to
judge the propriety of the relief counsel seeks.

1403

An admi·n istra't-ive ·agency cannot exceed the jurisdictional
a uthority granted to it by Congress. As has been held by the
Commission, the Act grants subject matter jurisdiction to the
Commission by creating specific causes of actions which the
secretary of Labor, operators, ·and individuals may institute.
Kaiser Coal Company, . 10 FMSHRC 1165, 1169 (September 1988). The
steps that must be followed to commence an action before the
Commission are spelled out in the Commission's procedural rules.
29 C.F.R. § 270~.~5 et seq. These rules cannot be ignored.
It may be that this case which is against the operator under
Section llO(a) should be heard at the same time as a llO(c)
matter, but that determination must await the filing of the
latter suit and the designation by the individuals involved of
whom they wish to have as their legal representative.
Accordingly, it is ORDERED that the motion to consolidate be
DENIED.
It is further ORDERED that the motion ·to expedite be DENIED.
It is further ORDERED that the motion to vacate the stay in
this case be DENIED, and that the stay in this case be CONTINUED
until further notice.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Roberts. Wilson, Esq., Office of the Solicitor, u. s.
of Labor, 4015 Wilson Boulevard, Arlington, VA-. 22203

Depa~ment

Elizabeth Chamberlin, Esq., Consolidation Coal company, 1800
Washington Road, Pittsburgh, PA 15241-1421
Robert M. Vukas, Esq., Consolidation Coal Company, 1800 Washington Road, Pittsburgh, PA 15241-1421
/gl

-tl U.S. GOVEnNMENT f1!1NTING OfflCE: 1!194 -

3 0 I - 8 7 8 I l 3 3 8 l

1404