APRIL 1994
CCHoJISSIQN DECISIONS AND ORDERS

04-05-94
04-06-94
04-08-94
04-11-94
04-11-94
04-11-94
04-21-94
04-21-94
04-21-94
04-22-94
04-25 - 94
04-25-94

L & J Energy Company, Inc.
PENN 93-15
AMI Construction
WEST 93-604-M
Thunder Basin Coal Company
WEST 94-238-R
Allan Goode employed by Consolidation Coal WEVA 91-2096
Jerry Ike Harless Towing, Inc.
CENT 92-276-RM
Dolese Brothers Company
CENT 92-110-M
Spurlock Mining & Sarah Ashley Mining Co. KE.NT 92-380
Broken Hill Mining Company
KENT 93-410
w. J. Bokus Industries, ;rnc.
YORK 92-106-M
J . A . L. Coal Company, Inc.
WEVA 93-312
Consolidation Coal Company
WEVA 92-922
Jim Walter Resources, Inc.
SE
94 - 306

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

667
670
671
674
683
689
697
702
704
710
713
721

AI:MINISTRATIVE LAW JUDGE DECXSICJiS
04-05-94
04-05-94
04-05-94
04-06-94
04-07-94
04-07-94
04-07-94
04-07-94
04 - 12 - 94
04-12-94
04-12-94
04-13-94
04-13-94
04-15-94
04-15-94
04-18-94
04-18-94
04-18-94
04-20-94
04-20-94
04-22-94
04-22-94
04-25-94
04-25-94
04-25-94
04-26-94
04-28-94

James Boyd for Local 1468, UMWA v. Trojan
Mining Company
KENT 92-51-C
Pg.
Shannopin Mining Company
PENN 92-385
Pg.
Talon Resources, Inc., et al.
WEVA 93-16
Pg.
Robert W·. Shel ton v. Nevada Gold Mining
WEST 93-573-DM Pg .
Morris Sand & Gravel
Pg .
CENT 92-195-M
Bryan ·Wimsatt v. Green Coal Company Inc.
KENT 93-735-D
Pg.
Pg.
Dow Sand and Gravel
YORK 93-14-M
Sec. Labor on behalf of Robert McCartney
v. Bridger Coal Company
Pg.
WEST 94-72-D
R . B . Coal Company, Inc .
Pg.
KENT 93 - 715
L & J Energy Company, Inc.
PENN 93-15
Pg.
Doss Fork Coal Company, Inc.
WEVA 93-129
Pg.
Larry Addair employed by JAMB Mining Inc. VA
93-87
Pg.
Energy West Mining Company
WEST 94-22-R
~g.
Napoleon Sand and Gravel
CENT 93-46-M
Pg.
United States Steel Mining Co.
WEVA 92-783
Pg.
Cedar Lake Sand & Gravel Co.
LAKE 93-64-M
Pg.
Pg.
Energy West Mining Company
WEST 93-169
Jim Walter Resources, Inc.
Pg.
SE
93-56-R
Keystone Coal Mining Corp.
PENN 91-451-R
(Respirable Dust Sample)
Master No . 91-1 Pg .
Island Creek Coal Company
WEVA 91-1231
Pg .
Sec. Labor on behalf of Michael Billings v.
Alcoa, Aluminum Company of America
CENT 93-157-DM Pg.
John Cullen Rock Crushing & Gravel
WEST 93-172-:M
Pg.
Lion Mining Company
PENN 93-490
Pg.
Sec. Labor on behalf of Thomas Allen
and Alan Boe v. L. H. Sowles company
Pg .
WEST 94-71-D
Explo-Tech Incorporated
YORK 93-134-M
Pg.
BethEnergy Mines, Inc.
PENN 93-247-R
Pg.
VA
W.S. Frey Company, Inc.
93-59-M
Pg .

725
726
727
761
770
785
786
788
789
796
797
815
816
826
829
834
835
851
857
907
908
909
921
925
931
935
975

AIHINISTRATIVE LAW JUDGE ORDERS
03-07-94
03-15-94
03-25-94

Sec. Labor on behalf of Danny Shepherd
v. Irishman Elkhorn Coal Company
Madison Branch Management
Thunder Basin Coal Company

i

KENT 94-396-D
WEVA 93-218-R
WEST 94-238-R

Pg . 1025
Pg. 1027
Pg. 1033

APRIL 1994

Review was granted in the following cases d.uring the month of AI;>ril :
Secretary of Labor, MSHA v. Morton International, Inc., Morton Salt, Docket
No. CENT 93-237-RM, etc.
(Judge Melick, February 24, 1994).
Secretary of Labor, MSHA v. L & J Energy Company, Inc., Docket No. PENN 93-15.
(Judge Weisberger, February 24, 1994).
Secretary of Labor, MSHA v. AMI Construction, Docket No. WEST 93-604-M .
(Chief Judge Merlin, Default Decision of March 3, 1994 - unpublished).
Thunder Basin Coal Company v. Secretary of Labor, MSHA, Docket No.
WEST 94-238-R.
(Judge Amchan, Order Denying Temporary Relief, March 25, 1994
- published in this volume)
Secretary of Labor, MSHA v. Broken Hill Mining Company, Docket No. KENT 93410, etc.
(Judge Weisberger, March 17, 1994).
Secretary of Labor, MSHA v. J.A.L. Coal Company, Inc., Docket No. WEVA 93-312.
(Chief Judge Merlin, Default Decision of March 28, 1994 - unpublished) .
secretary o'f Labor, MSHA v. Jim Walter Resources, Inc., Docket No. SE 94-306.
(No previous ALJ decision)
The following is a list of cases in which review was denied:
Secretary of Labor, MSHA v. Huntington Piping Inc . , Docket No. WEVA 93-57 .
(Judge Barbour, February 22, 1994)
Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No .
SE 93-370-M.
(Judge Hodgdon, February 25, 1994) .
Secretary of Labor, MSHA v. Buck Creek Coal, Inc., Docket No. LAKE 93-215.
(Judge Maurer, March 7,

19 94) .

·t

ii

\

COMMISSION DECISIONS AND ORDERS

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

20006

April 5: 1994

L&J ENERGY COMPANY, INC .
Docket No. PENN 93-

v.

15

SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION

DIRECTION FOR REVIEW

Petitioner L&J Energy Company, Inc., (•L&J•) has filed a Petition for
Discretionary Review and/or Motion for Remand for Correction of the Record
and Reconsider~tion of Decision.
\

L&J asserts that the decision of Administrative Law Judge Avram
Weisberger, issued February 24, 1994, is contrary to law, and •contains legal
conclusions which are erroneous, and findings of material facts which are not
supported by substantial evidence, some of which are the result of a critical
clerical error in the record which is recited in the decision.#
In response, the Secretary moved for a remand to the judge, who •is in
the best position to address and resolve the issues raised by L&J Energy.•
Essentially L&J asserts that a particular stipulation of record does not
reflect the agreement as to that stipulation reached by counsel and the judge
in an off-the-record conference, in chambers. (TR 2-4, Aug. 24, 1993). There
is no allegation, however, that the stipulation read by the judge was
inaccurately transcribed . Therefore, L&J's assertion of clerical error is
without support and its Motion for Correction of the Record is denied. See
Fed. Rule Civ. Pro. 60(a).
Although the alleged error is not clerical, given L&J's assertion that
the stipulation does not reflect the parties' agreement and the Secretar y's
motion to remand , in the interest of justice we g r a nt the Petition for
Discretionary Revi ew . We remand t h is matter to the judge , who shall determine

667

whether the stipulation in. question is complete and correctly represents the
agreement of the parties .
Upon so doing, the judge may reconsider his
decision, if that should be necessary.

Arlene Holen, Chairman

7
Richard V. Backley,

!Jistrihution

Henry Chajet, Es q .
Jackson & Kelly
2401 Pennsylvania Ave., N.W .
Suite 400

Washington, D. C.

20037

Laurance B. Seaman, Esq.
Gates & S-=:aman
P.O. Box 846
Clearfield, PA 16830
Linda Henry, Esq.
Office of the Solicitor
U.S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

668

c~

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.
~\

1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.

20006

April 6, 1994

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 93-604-M

v.

AMI CONSTRUCTION,
Respondent.

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 March 3,
1994, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
AMI Construction ("AMI") for failing to answer the proposal for assessment of
civil penalty filed by the Secretary of Labor and the judge's January 4, 1994,
Order to Show .cause. The judge assessed the civil penalty of $1700 proposed
by the Secretary. For the reasons that follow, we vacate the default order
and remand for further proceedings.
on March 8, 1994, the Commission received a letter from AMI, addressed
to Judge Merlin, stating that AMI objected to the proposed fine as excessive.
AMI attached a letter, addressed to the Department of Labor's San Francisco
regional office, in which AMI had stated more fully its objections. AMI
further stated that it had heard nothing in over four months, until receiving
the default order at its new address.
The judge's jurisdiction in this matter terminated when hie decision was
issued on March 3, 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). We deem AMI's letter to be a timely filed Petition
for Discretionary Review, which we grant. See, ~, Middle States Resources,
Inc., 10 FMSHRC 1130 (September 1988).

669

On the basis of the present record, we are unable to evaluate the merits
of AMI's position. In the interest of justice, we remand this matter to the
judge, who shall determine whether default is warranted. See Hickory Coal
Co., 12 FMSHRC 1201, 1202 (June 1990).
For the reasons set forth above, we vacate the judge's default order and
remand this matter for further proceedings.

A~oi.4rrman

Distribution
Les Warr
AMI Construction
P.O. Box 2030
Winnemucca, NV 89446
Susan Lewald, Esq.
Office of the Solicitor
U.S. Department of Labor
71 Stevenson St., Suite 1110
San Francisco, CA 94105
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington,'D.C. 20006

670

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

April 8, 1994

THUNDER BASIN COAL COMPANY
Docket Nos. WEST 94-238-R
WEST 94-239-R

v.

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

On March 28, 1994, Thunder Basin· Coal Company ('Thunder Basin') filed a
Motion for Expedited Consideration and a Petition for Discretionary Review of
Administrative Law Judge Arthur J. Amchan's Order Denying Temporary Relief,
issued March 25, 1994. The Secretary of Labor informed the Commission by
letter dated March 29, 1994, that he did not object to Thunder Basin's
petition for rev·~ew, but objected to its request for a stay contained therein.
We grant the petition and affirm, in result, the judge's denial of
temporary relief.
The judge based his decision on two grounds: first, on his conclusion
that the Commission does not have authority under section 105(b)(2) of the
Federal Mine Safety and Health Act of 1977 ('Mine Act#), 30 u.s.c. §§ 801,
815(b)(2)(1988), to grant applications for temporary relief from section
104(b) orders designated as •no area affected.• Dec. at 3-5. The judge
erred. The Mine Act places no limitation on the applicability of section
105(b)(2) except that *[n)o temporary relief shall be granted in the case of a
citation issued under subsection (a) or (f) of section 104.• Thunder Basin's
challenge to the order is separate and distinct from any challenge to the
validity of the underlying citation. 1 Thunder Basin asserts that the order
was issued because the time given for abatement of the citation was
unreasonable (fifteen minutes to post the designation of the miners'
representative) and because MSHA unreasonably refused to extend the abatement
time.
Section 105(b)(2) provides that the Commission may, in its discretion,
grant temporary relief from an order issued under section 104 if a hearing has
been held, the requested relief will not adversely affect the health and
safety of miners, and the applicant shows that there is •substantial
likelihood• that the findings of the Commission will be favorable to him. 30
u.s.c. § 815(b)(2).

~

Clinchfield Coal Co., 11 FMSHRC 2120, 2128 {November 1989).

671

We agree with the judge's second conclusion, that Thunder Basin has
failed to qualify for temporary relief because it has not demonstrated a
substantial likelihood that the Commission's findings will be favorable to it.
Dec. at 5-6 . Thunder Basin has not shown that the Commission is likely to
determine that the time allowed for abatement of the violation was
unreasonable or that it was unreasonable not to extend that time.
For the foregoing reasons we affirm, in result, the j udge ' s decision to
deny Thunder Basin's application for temporary relief . 2

Arlene Holen, Chairman

/

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~

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o::-· -{/~~

Richard V. Backley, Commissioner

;};»

<le.~.~;..i~

2

In light of our disposition, we need not address Thunder Basin ' s
Motion for Expedited consideration.

672

Distribution
Timothy M. Biddle, Esq .
Thomas C. Means, Esq .
Crowell & M.:.ring
1001 Pennsylvania Ave., N.W .
Washington , D.C. 20004
Thomas F. Linn , Esq.
Atlantic Richfield Company
555 Seventeenth St. , 20th Floor
Denver, CO 80202
Colleen Geraghty, Esq .
Office of the Solicitor
U. S. Department of Labor
4015 Wilson Blvd., 4th Fl.
Arlington, VA 22203
Margaret A. Miller, Esq.
Office of the Solicitor
U.S. Department of Labor
1999 Broadway~ Suite 1600
Denver, CO 80202
Mr. Ray Mcintosh
Representative of Miners
P . O. Box 414
Wright, WY 82723
Mr. Everett Kraft
Representative of Miners
Box 127
Upton, WY 82730

673

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

April 11 , 1994

SECRETARY OF I.ABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 91-2096

v.

ALLAN GOODE, employed by
CONSOLIDATION COAL COMPANY
BEFORE: Holen, Chairman; Backley and Doyle, Commissioners 1

DECISION
BY THE COMMISSION:
This civil penalty proceeding arising under the Federal Mine Safety and
Health Act of 1977, 30 U. S.C. § 801 et seq. (1988)("Mine Act" or "Act"),
presents the issue of whether Allan Goode "knowingly authorized, ordered or
carried out" a violation of the roof control plan of his employer,
Consolidation Coal Company ("Consol") . Following an evidentiary hearing,
Administrative Law Judge William Fauver determined that Goode had knowingly
violated the roof control plan within the meaning of section llO(c) of the
Mine Act. 2 14 FMSHRC 2106 (December 1992). For the reasons that follow, we
reverse the judge's decision.

1

Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves as a panel of three members to exercise the powers
of the Commission.
2

Sectidn llO(c) provides, in part:
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) of this section.

30 U.S.C. § 820(c).

Section llO(c) was carried over without significant

change from section 109(c) of the Federal Coal Mine Health and Safety Act of
1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977)("Coal Act").

674

I.
Factual and Procedural Background
When the alleged violation occurred, Goode was a section foreman at
Consol's Ireland Mine in Moundsville, West Virginia. On the midnight shift of
March 8-9, 1990, Goode's crew was building an overcast. The crew consisted of
George Holmes, the continuous miner operator; Donald Conner, the left roof
bolter; Charles Minor, the right roof bolter; and Donald "Page• 'Whorton, the
loading machine operator. They had cut a portion of the roof higher to make
room for the overcast and were installing permanent roof support. The crew
was using a Jeffrey Continuous Miner equipped with an automated temporary roof
support ("ATRS") system. Under the roof control plan, the crew was required
to temporarily support the roof with the ATRS system during the roof bolting
process. 3 Permanent roof support was installed using the roof bolting
component built into the continuous miner.
The continuous miner was equipped with four ATRS jacks, two near the
front and two near the back. When activated, these jacks press against and
temporarily support the roof so that the crew can bolt the roof with the
augers on the continuous miner. The miner is also equipped with two plank
jacks, which are used to press planks, wire mesh and cribbing against the
overcast roof so that roof bolts can be installed through the planks. The
judge described the process used to build an overcast as follows:
Permanent roof support in the overcast required
double planks with wire mesh and, if necessary,
cribbing boards to fit irregular places in the roof.
To build an overcast, the continuous miner cuts down
existing roof support and cuts into the roof to raise
the height for the overcast. The miner is then backed
up to a supported roof area, where a double plank, a
section of wire mesh, and if necessary cribbing boards
are stacked on the plank jacks. The miner is then
trammed forward and the ATRS jacks are raised firmly
against the roof. After that is done, the roof
bolters raise the plank jacks, drill the roof holes
and install roof bolts pinning the double plank and
materials to the roof. The ATRS is then lowered and
the cycle is repeated .

14 FMSHRC at 2107.
On the night in question, Goode's crew was installing a set of planks
when a small section of the roof fell, knocking down the mesh, cribbing boards
and a plank. Goode arrived in the area while the miners were trying to free
the wire mesh from the material that had fallen. Conner testified that Goode
3

The mine's roof control plan provides, in part, that "operators of
integral roof drills will not advance inby the last permanent support until
the ATRS system is placed firmly against the roof." Ex. G-5.

675

became "a little bit upset." Tr. 126. Minor testified that Goode
"scream[ed]" at the crew and stated that "one man could do this job." Tr. 91 .
After the fallen material had been removed from the mesh, Goode climbed on top
of the miner to position the planks, cribbing and mesh on the plank jacks.
Whorton testified that this procedure was not unusual when installing planks
and wire mesh. Tr. 171. - AB Goode was stacking this material on the plank
jacks, some of it fell and hit Minor in the head. Tr. 80, 172. Minor then
told Goode that "this was unsafe as hell.a Tr. 113, 222. Minor testified
that Goode replied that 8 so is walking down the street, but you've got to do
it . 8 lsL.. Goode testified that he became •a little disturbed" and he does not
dispute that he had an argument with Minor. Tr. 222-23.
After Goode repositioned the planks and cribbing on the plank jacks, the
miner was trammed forward and the ATRS jacks were raised. The crew then
raised the plank jacks to press the mesh, cribbing and planks against the
roof. Next, the crew raised the roof bolting augers and Goode made sure that
the materials were positioned correctly so that the crew could drill through
the planks and install the bolts. AB soon as the crew started to drill, Goode
left the area .
Whorton testified that, when the crew raised the ATRS jacks, as
described above, the jacks on the left side of the miner did not press against
the roof. Tr. 172-73. Because the roof fall had created.a small cavity along
the left side of the miner, two ATRS jacks were about 12 to 18 inches from the
roof . Tr. 197. He. stated that he told Conner that the ATRS jacks were not
pressurized against\ the roof , but that he did not hear Conner's response
because of the loud noise . He also testified that he saw Conner speak to
Goode shortly thereafter but that he could not hear their conversation.
Minor testified that he had observed that the left rear jack was not
pressurized against the roof . Tr . 94-95 . He stated that he had not told
Goode because he thought that Goode had seen it from his position on top of
the miner. Tr·: 87. The crew installed roof bolts through the planks despite
the fact that the ATRS system was not fully pressurized. In a written
statement made to the Department of Labor's Mine Safety and Health
Administration ("MSHA") on December 8, 1990, Minor said that, under normal
circumstances, he would not install roof bolts if he observed that the ATRS
jacks were not in place, but that, "because of Goode's actions and the way he
was screaming I was intimidated and afraid he was going [to] begin screaming
again and lose control, so I did install the roof bolt . " Ex. G-9 p . 3.
Conner testified that "maybe one 8 of the jacks did not press against the
roof . Tr . 155. In his statement to MSHA dated December 14 , 1990, he said
that , if he had noticed that the jacks were not touching the roof; he would
have told Goode. Ex . G-13 p . 4 . He testified that he did not know whether
Goode saw that the jacks were not fully supporting the roof because the planks
and cribbing may have blocked his view of the jacks. Tr. 131, 143. Conner
testified that Goode should have been able to determine whether the jacks were
in contact with the roof by listening for the wire mesh to crunch against the
roof when the jacks were fully pressurized. Tr. 143. Conner also testified
that , shortly after he arrived, he asked Goode if there were any extensions

676

for the ATRS jacks on the section and that Goode replied that the crew would
have to use what was available. Tr. 130.
Goode testified that he did not know that some of the ATRS jacks had not
reached the roof. Tr. 223 , 227 . He testified that the planks and cribbing
prevented him from seeing whether the jacks were supporting the roof. Tr.
227-28. He stated that, if anyone had told him that all of the jacks were not
pressed against the roof, corrective measures would have been taken. Tr. 22425, 227. He testified that built-in extensions on the ATRS jacks could have
been raised or cribbing could have been used to support the roof. · Tr. 223-25.
After receipt of a request for an inspection under section 103(g) of the
Act, MSHA Inspector Lyle Tipton investigated this incident. 4 Following his
investigation, he issued a section _1 04(d)(2) order of withdrawal charging
Consol with a violation of its roof control plan. 5 Consol paid a civil
penalty of $1,300, without contest. The Secretary also proposed a civil
penalty of $1,000 against Goode, which is the subject of this proceeding.
Consol sought to discharge Minor and Conner for their violation of the
roof control plan. There is no dispute that they knew that installing roof
4

Section 103(g) provides, in pertinent part:
\Whenever a representative of the miners . . . has

reason~ble grounds to beli~ve that a violation of this

30 u.s.c.
5

[Act] or a mandatory health or safety standard exists,
... such ... representative shall have a right to
obtain an immediate inspection by giving notice to the
Secretary or his authorized representative of such
violation .. ..
§ 813(g).

The condition or practice section of the order states, in pertinent

part:
Based on the conclusion of a [103(g)]
investigation, it has been determined that the
approved roof control plan, (page 21 C, line 1, Basic
ATRS cycle) was not being complied with on March 9,
1990, where the continuous mining machine was cutting
an overcast utilizing integral roof bolting machines
with an approved ATRS system which was not in contact
with the mine roof. Interviews with the crew members
and the Foreman indicated that the ATRS jacks were
from 12 to 18 inches from the mine roof during the
installation of 2 to 5 roof planks where the foreman
assisted the crew in the bolting process.

Ex. G-4. The record in this case demonstrates, and the Secretary does not
dispute, that only one set of planks was installed in violation of the roof
control plan rather than two to five as alleged in the order.

677

bolts when the ATRS jacks were not supporting the roof violated the roof
control plan. Minor and Conner invoked the grievance process under the mine's
labor agreement and the matter was arbitrated. The arbitrator determined that
Minor and Conner had violated the roof control plan, but he concluded that
"compelling extenuating circumstances• mitigated against discharge. Ex. G-12
p. 14. Instead, he ordered the miners suspended, for about two weeks. He
reached this conclusion after determining that the miners' failure to follow
the roof control plan was caused in part by Goode's angry demeanor.
The judge found Goode liable under section llO(c) because he had reason
to know that at least some of the jacks would protrude into the cavity created
by the roof fall and might not press against the roof. 14 FMSHRC at 2111.
The judge assessed a civil penalty of $1,000.
II.

Disposition
Goode argues that the judge erred in adopting the labor arbitrator's
holding that the crew's failure to notify Goode that the ATRS jacks were not
supporting the roof was caused by Goode's demeanor. He maintains that the
evidence shows that he did not have actual knowledge of or reason to know of
the violation. Goode contends that the judge improperly concluded that Goode
had reason to know of the violation as a result of his allegedly intimidating
demeanor. He argues that the judge's decision ignores the fact that it was
the crew's responsibility to ensure that the ATRS jacks were pressurized
against the roof. Thus, Goode contends that the evidence presented by the
Secretary is too tenuous to support a finding that he knowingly authorized,
ordered or carried out the violation.
The Secretary argues that substantial evidence supports the judge's
finding that Goode had reason to know of the violation because: (1) his unsafe
conduct intimidated the" crew, (2) he knew that the cavity caused by the roof
fall created a reasonable likelihood that the ATRS jacks would not reach the
roof, and (3) he knew that the wire mesh on the left side of the miner did not
audibly crunch against the roof. The Secretary maintains that Goode, having
voluntarily taken over control of the roof bolting crew, should have made it
his business to ascertain for himself whether the ATRS jacks were supporting
the roof. The Secretary argues that, by intimidating the crew into haste and
silence, Goode created a safety risk that the roof bolters would install the
roof bolts without the ATRS jacks supporting the roof.
The judge did not base his conclusion that Goode was liable under
section llO(c) on a finding that Goode knew that the ATRS jacks were not
supporting the roof. The judge found that the record did not make clear
whether, from his crouched position on top of the miner, Goode could have seen
that the ATRS jacks did not reach the roof . 14 FMSHRC at 2110-11. Further,

678

the judge found no evidence that anyone on Goode' s crew told him that some of
the jacks were not in place. Id. at 2110. 6
Instead, the judge concluded that Goode knowingly authorized, ordered or
carried out the violation of the roof control plan because he had reason to
know the plan was being violated. 14 FMSHR.C at 2111. He found that Goode had
a reasonable duty to listen for the wire mesh to crunch against the roof when
the ATRS jacks were pressurized. lfL_ He also found that "Goode's unsafe
conduct, combined with a reasonable likelihood that the ATRS jacks in the
cavity would not reach the roof and the fact that the wire mesh on the left
side did not audibly 'crunch' against the roof, gave Goode reason to know that
the roof control plan was being violated." Id. (footnote omitted). In this
regard, the judge found that:
·
Ordinarily, [Goode] could expect the roof bolters to
observe the ATRS jacks and to be sure that they were
pressed against the roof before they advanced to raise
and bolt the plank. However, by his demeanor in (1)
screaming at employees and displaying intense anger at
the crew's delay in installing the second double
plank, and (2) angrily climbing up on the continuous
miner to steady the plank while waiting for the
bolters to raise the plank, drill the roof and bolt
the plank, Goode created a safety risk that his crew
woul~ be intimidated and not tell him if the ATRS
[jacks] did not reach the roof.
14 FMSHRC at 2111. Thus, the judge concluded that Goode had reason to know
that the roof control plan was being violated.
The judge's conclusion that Goode knowingly authorized, ordered or
carried out a violation of the roof control plan as a result of his
intimidating demeanor is based on two key findings. These findings are not
supported by substantial evidence. The judge found that "Goode was known for
having a short temper" and that "Minor and other members of the crew ... had
come to recognize Goode's displays of temper as permitting no response or
explanation from a subordinate, evoking only silence and motivation to 'keep
out of his way.'" 14 FMSHRC at 2108. There is no record ·evidence to support
the judge's finding that the crew had previously been subjected to
intimidating displays of temper or that they had previously been afraid to
respond to him.

6

Although Whorton testified that he told Conner that the left ATRS
jacks did not reach the roof and that Conner immediately spoke to Goode,
Conner did not testify that he had a conversation with Whorton or that he told
Goode about the left ATRS jacks. Indeed, in his statement to MSHA, Conner
said that if he had noticed that the ATRS jacks were not reaching the mine
roof, he would have told Goode and would not have installed the roof bolts.

Ex. G-13 p. 4.

679

The judge relied on the decision in the labor arbitration in making
these findings. The arbitrator determined that the grievants "committed a
violation of the Ireland Mine Roof Control Plan and the Company Conduct
Rules." Ex. G-12 p. 3. He found, however, that Goode spoke to the crew "in
the angry tone and manner which all stated they had come to recognize as
permitting no response or explanation, evoking only silence and 'keeping out
of his way' as much as possible." Ex. G-12 p. 11. The arbitrator concluded
that "a part, at least, of the responsibility for the events leading to the
discipline of the Grievants lies with the actions and demeanor of Goode at the
time." Ex. G-12 p. 15 . As consequence, the arbitrator assessed a
disciplinary suspension in lieu of discharge. Id.
The Commission has adopted the approach to arbitration findings
developed by the Supreme Court in Alexander v. Gardner-Denver Co., 415 U.S. 36
(1974). In adopting this approach, the Commission held that "according weight
to the findings of arbitrators may aid the Commission's judges in finding
facts." Secretar.y o(b/o Pasula y. Consolidation Coal Co., 2 FMSHRC 2786, 2795
(October 1980). The Commission stated:
As Gardner-Denver indicates, there are several
factors that must be considered in determining the
weight to be accorded to arbitral findings: the
congruence of the statutory and contractual
provisions; the degree of procedural fairness in the
arbitral ~orum; the adequacy of the record; and the
special competence of the particular arbitrator.
Arbitral findings may be entitled to great weight if
the arbitrator gave full consideration to the
employee's statutory rights; the issue before the
judge is solely one of fact; the issue was
specifically addressed by the parties when the case
was before the arbitrator; and the issue was decided
by the arbitrato'r on the basis of an adequate record.

The judge did not evaluate the Pasula factors in adopting the
arbitrator's findings. The issue before the arbitrator was whether Minor and
Conner should be discharged for violating the roof control plan. He
considered Goode's actions only because he determined that his conduct
"suppl[ies] mitigating circumstances which provides some explanation for
Grievants' failures, albeit not excuse." Ex. G-12 p. 15 (emphasis in
original). Thus, the arbitrator did not give any consideration to Goode's
procedural or statutory rights. Although Goode testified as a rebuttal
witness on behalf of Consol at the arbitration hearing, Goode was not a party
and did not have cross-examination rights. Moreover. a number of individuals,
including the continuous miner operator on the crew and several safety
committeemen and other miners who testified on behalf of the grievants before
the arbitrator did not testify at the Commission hearing . Thus, Goode bad no
opportunity to cross-examine these witnesses. After consideration of the
factors set forth in Pasula, we conclude that the judge erred in according

weight to the arbitration findings. Cf. Dayid Hollis v. Consolidation Coal
Co., 6 FMSHR.C 21, 26-27 (January 1984),
The Secretary also argues that Goode was aware of the cavity and knew
that, if the distance between the floor and the roof were great enough, the
ATRS jacks would not reach the roof. Whorton, however, testified that,
because the floor of the entry had been cut on a previous shift, the distance
was greater than normally encountered when cutting overcasts. Tr. 194. He
stated that the crew "had never actually been in a situation quite like that
before" and that he would have thought that the jacks would reach the roof.
Tr. 195. Indeed, Minor and Conner testified that they had never bolted
without the ATRS jacks fully in place and did not know of any instances when
anyone else had. Tr. 115-16, 154. Thus, the fact that a cavity was present
in the roof does not establish that the ATRS jacks were unlikely to reach the
roof or that Goode knowingly authorized, ordered or carried out a violation of
the roof control plan. The Commission has held that supervisors are not
permitted to "close their eyes to violations, and then assert lack of
responsibility for those violations because of self-induced ignorance."
Secretary v. Roy Glenn, 6 FMSHR.C 1583, 1587 (July 1984). Knowledge that
miners might perform a task in an unsafe manner, however, is "too contingent
and hypothetical to be legally sufficient." Id. at 1588.
The Secretary also seeks to prove Goode's liability under section llO(c)
based on his know\edge that the wire mesh on the left side of the mining
machine did not au4ibly crunch against the roof. The judge determined that
"Goode had a reasonable duty to listen for the crunch." 14 FMSHR.C at 2111.
Conner testified, however, that noise from the mining machine makes it
difficult to hear, so that he must look up at the mesh to ensure that it is
being pressed against the roof. Tr. 144-45. In addition, the four jacks may
press against the roof at the same time so that distinct sounds may not be
audible. Thus, Goode's failure to notice that the left jacks did not crunch
against the roof cannot be the basis of section llO(c) liability.

681

III.

Conclusion
For the foregoing reasons, the judge's decision is reversed, and the
section llO(c) civil penalty proceeding against Goode is dismissed.

Arlene Holen,tChairlllan

~~/
Richard V. Backley, Commissioner

Distribution
David J. Hardy, Esq.
Jackson & Kelly
P.O. Box 553
Charleston, WV 25322
for Allan Goode
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative La~ Judge William Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

682

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

20006

April 11, 1994
JERRY IKE HARLESS TOWING, INC.
and HARLESS, INC.

v.

Docket No. CENT 92-276-RM

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

Holen, Chairman; Backley and Doyle, Commissioners 1
DECISION

BY THE COMMISSION:
'\
This contest proceeding arising under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act") presents the
issue of whether the sand-dredging operation of Jerry Ike Harless Towing, Inc.
("Harless Towing") is subject to the jurisdiction of the Mine Act. Following
an evidentiary hearing, Administrative Law Judge Jerold Feldman determined
that Harless Towing's dredging operation is subject to Mine Act jurisdiction.
15 FMSHRC 1052 (June 1993). For the reasons that follow, we affirm the
judge's decision.
I.

Factual and Procedural Background
On May 12, 1992, Inspectors John Ramirez and Steve Montgomery of the
Department of Labor's Mine Safety and Health Administration ("MSHA") visited
the main office of Jerry Ike Harless Towing, Inc. ("Harless Towing") and
Harless Inc., in Lake Charles, Louisiana. They spoke with Mr. Harless, the
chief executive officer of Harless, Inc. and Harless Towing, about the Mine
Act's requirement that all mines file a legal identity report with MSHA. 2

1

Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves as a panel of three members to exercise the powers
of the Commission.
2

Section 109(d) of the Mine Act provides, in pertinent part:
Each operator of a coal or other mine subject to
this Act shall file with the Secretary the name and

683

Mr. Harless stated that Harless Towing did not operate a mine and questioned
MSHA's jurisdiction. Nevertheless, Mr. Harless permitted the MSHA inspectors
to inspect Harless Towing's dredging operation on the Calcasieu River. They
found no violations of MSHA's safety and health standards. Mr. Harless
refused to complete the MSHA legal identity form and on May 19, Inspector
Ramirez issued a citation, 3 alleging a violation of 30 C.F.R. § 56.1000. 4
Harless Towing employs from four to eight workers and dredges sand from
a designated section of the Calcasieu River, a navigable waterway, pursuant to
an Army Corps of Engineers permit. It has been extracting sand from the river
bed four to six months a year for about 30 years, apparently without
inspection by MSHA.
Harless Towing dredges the sand using a vessel containing dredging
machinery, with several barges in tow. The dredge hydraulically suctions
sand, sediment and water from the river bottom through a piping system that
directs the material onto a screen barge. On that barge, the material is
pumped through a % inch mesh screen that removes debris. From the screen
barge, the sand and water are pumped through a flume to another barge, the
heart barge, where the sand and water are separated.
The heart barge is towed to one of two off-loading terminals, owned by
Harless, Inc. The sand is removed by Harless, Inc. and stockpiled. Harless,
Inc. sells the sand to customers, including large industrial operations. The
river sand is used 'frimarily for fill under foundations and for various

address of such mine and the name and address of the
person who controls or operates the ~ine.
30 u.s.c. § 819(d).
3

The citation was issued to Harless, Inc. rather than Harless Towing
because the MSHA inspector was not aware of the two corporate entities. 15
FMSHRC at 1052 n.l. At the hearing, the judge ruled that Harless Towing was
subject to the jurisdiction of the Mine Act but that Harless, Inc. was not.
Id. at 1058-59 & n.8. No objection was raised at the hearing and this issue
is not before the Commission on review.
4

Section 56.1000 states, in pertinent part:
The owner, operator, or person in charge of any
metal and nonmetal mine shall notify the nearest Mine ·
Safety and Health Administration and Metal and
Nonmetal Mine Safety and Health Subdistrict Office
before starting operations, of the approximate or
actual date mine operation will commence. The
notification shall include the mine name, location,
the company name, mailing address, person in charge,
and whether the operations will be continuous or
intermittent.

684

industrial applications. Harless, Inc. also sells limestone aggregate,
gravel, and other types of sand, all of which it purchases from other
suppliers.
The judge determined that Harless Towing is engaged in .commerce as tha't
term is used in section 4 of the Mine Act. 5 15 FMSHRC at 1056. He concluded
that, by dredging in the navigable waters of the United States under permit of
the U.S. Corps of Army Engineers, Harless Towing engaged in commerce. IQ.... In
addition, he found that, when the sand produced by Harless Towing is sold,
commerce is affected. IQ....
Relying on Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589 (3d
Cir. 1979), cert. denied, 444 U.S. 1015 (1980), 6 the judge also concluded
that Harless Towing's extraction and preparation of sand are included within
the Mine Act's definition of "coal or other mine" in section 3(h)(l). 15
FMSHRC at 1058. He rejected Harless Towing's argument that sand is not a
mineral as well as their alternative argument that the sand is extracted in
liquid form without the use of underground workers. .IQ.._ The judge dismissed
Harless Towing's contest of the citation and the Commission granted its
petition for discretionary review.
II.

Disposition
A.

Effect on Coinmerce

Harless Towing argues that its facilities are not subject to Mine Act
jurisdiction because it is not engaged in commerce, as that term is defined in
section 3(b) of the Act. 7 It maintains that all the sand it produces is sold
5

Section 4 of the Mine Act 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.

30 u.s.c. § 803.
6

In Stoudt's Ferry, the court held that a business that processes and
sells sand and gravel from material that has previously been dredged from a
river operates a mine under the Mine Act.
7

Section 3(b) of the Mine Act states:
"commerce" means trade, traffic, commerce,
transportation, or communication among the several
States;· ·or between a place in a State and any place
outside thereof, or within the District of Columbia or

685

in Louisiana and doe·s not affect interstate commerce. The Secretary contends
that, because Harless Towing operates a sand-dredging operation on a navigable
waterway, he has jurisdiction over its operation under section 4 of the Mine
Act. The Secretary further maintains that it has long been established that
Congress has authority to regulate dredging activities in beds of navigable
waters.
The Commerce Clause of the Constitution has been broadly construed for
over 50 years. Commercial activity that is purely intrastate in character may
be regulated by Congress under the Commerce Clause, where the activity,
combined with like conduct by others similarly situated, affects commerce
among the states. Fry v. United States, 421 U.S. 542, 547 (1975); WicJsard v.
Filburn, 317 U.S. 111 (1942)(growing wheat solely for consumption on the farm
on which it is grown affects interstate commerce). Congress intended to
exercise its authority to regulate interstate commerce to the "maximum extent
feasible" when it enacted section 4 of the Mine Act. Marshall v. Kraynak, 604
F.2d 231, 232 (3d Cir. 1979), cert. denied 444 U.S. 1014 (1980); United States
v. Lake, 985 F.2d 265, 267-69 (6th Cir. 1993). In Lake, the mine operator
sold all its coal locally and purchased mining supplies from a local dealer.
985 F.2d at 269. Nevertheless, the court held that the operator was engaged
in interstate commerce because "such small scale efforts, when combined with
others, could influence interstate coal pricing and demand." Id.
The judge correctly determined that Harless Towing's sand-dredging
operation affects interstate commerce. Because Congress, in the Mine Act,
intended to exercise the full reach of its authority under the Commerce
Clause, the Secretary has a minimal burden to show that Harless Towing's
operations or products affect interstate commerce. It dredges sand from a
navigable waterway of the United States. In addition, the sand produced by
Harless Towing is sold to corporations that operate in more than one state,
such as Gulf States Utilities, Pittsburgh Plate Glass Co. and Occidental
Petroleum. 15 FMSHRC at 1056. The sand is transported on public highways and
waterways and is used in manufactured products, such as glass, that are sold
outside Louisiana. Id. Thus, Harless Towing's products enter interstate
commerce. The sale of its sand by Harless, Inc., does not change that. As a
consequence, Harless Towing's sand-dredging operation affects commerce as that
term is used in the Mine Act.
B.

Definition of "coal or other mine"

Harless Towing argues that its operation is not a mine, as that term is
defined in section 3(h)(l) of the Act, because it is not "an area of land from
which minerals are extracted in nonliquid form." Harless Towing maintains
that a floating dredge that suctions sand from a river is not a mine, since
the operation takes place, not on an area of land, but on a river and since
its extraction of liquid minerals does not employ workers underground.
a possession of the United States, or between points
in the same State but through a point outside thereof.
30 u.s.c. § 802(b).

686

Finally. it argues that the judge's reliance on Stout's ferry is misplaced
because that case dealt with the processing of coal and other material after
it had been dredged from a river and did not address whether the dredging of
sand is subject to Mine Act jurisdiction. The Secretary argues that Harless
Towing operates a mine because its sand-dredging facilities consist of
"structures, facilities, equipment, machines [and] tools" that are "used in
the work of extracting [such} minerals from their natural deposits." S.
Br. 11 quoting Section 3(h)(l).
The term "coal or other mine" is defined broadly in the Mine Act. 8 The
definition is not limited to an area of land from which minerals are
extracted, but also includes facilities, equipment, machines, tools and other
property used in the extraction of minerals from their natural deposits and in
the milling or preparation of the minerals. See, !t.&.&o-· Donovan y. Carolina
Stalite Co,, 734 F.2d 1547 (D.C. Cir. 1984); Oliver M. Elam. Jr, Co,, 4 FMSHRC
S (January 1982). In determining coverage. we must give effect to Congress'
clear intention in the Mine Act, discerned from "text, . structure, and
legislature history." Coal Employment Project y. Dole, 889 F'. 2d 1127, 1131
(D.C. Cir. 1989). Congress determined to regulate all mining activity .. The
Senate Committee stated that "what is considered to be a mine and to be
regulated under this Act [shall] be given the broadest possibl[e] interpretation, and ... doubts [shall] be resolved in favor of inclusion of a
facility within the coverage of the Act." S. Rep. No. 181, 95th Cong .• 1st
Sess. 14 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess . , Legislative History of the Federal Mine
Safety and Health Act of 1977, at 602 (1978).
This broad interpretation has been adopted by the courts. See, .!L.&.t.,,
Carolina Stalite Co., 734 F.2d at 1554 . The definition of "coal or other
mine" has been applied to a broad variety of facilities that are not "an area
of land from which minerals are extracted. " See,~. Happan Mining Corp, v.
FMSHRC, 671 F.2d 794 (4th Cir . 198l)(operator loaded previously extracted and
prepared coal onto railroad cars for '' transportation); Stoudt' s Ferry, 602 F. 2d
589 (3d Cir. 1979)(operator separated sand and gravel from material that had
been dredged from a river by the Commonwealth of Pennsylvania) ; Carolina
Stalite, 734 F.2d 1547 (D.C. Cir. 1984)(operator heated previously mined slate
8

Section 3(h)(l) states, in pertinent part :
"coal 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, ... and (C) ... structures, facilities,
equipment, machines, tools or other property ... on
the surface or underground, used in, or to be used in,
or resulting from, the work of extracting such
minerals from their natural deposits in nonliquid
form, or if in liquid form, with workers
underground ....

30 u.s.c. § 802(h)(l).

687

in a rotary kiln to create a light-weight material used in making concrete
blocks).
Harless Towing extracts sand, a mineral, from its natural deposit. The
fact that Harless Towing's sand is transported in a slurry froJn a river does
not make the sand a liquid mineral. We conclude that Harless Towing's sanddredging facilities are covered by the Mine Act.
III.

Conclusion
For the foregoing reasons, we affirm the judge's decision.

Arlene Holen,
Chairman/ ;
_.,

Richard V. Backiey, Commissioner

Distribution
James P. Gaharan, Jr., Esq.
Attorney at Law
724 Moss Street
Lake Charles, LA 70601
for Harless Towing
Tana M. Adde, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd ., Suite 400
Arlington, VA 22203
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commissiou
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

688

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

20006

April 11, 1994

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 92 - 110-M

v.

DOLESE BROTHERS COMPANY

BEFORE:

Holen, Chairman; Backley and Doyle, Commissioners 1
DECISION

BY THE COMMISSION:
This civil penalty proceeding arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"),
presents the issue of whether Dolese Brothers Co. ("Dolese") violated 30
C.F.R. § 56.142ll(d) 2 and, if so, whether the judge assessed an appropriate
1

Pursuant to section . 113(c) of the Mine Act, 30 .U.S.C. § 823(c), we
have designated ourselves as a panel of three members to exercise the powers
of the Commission.
2

Section 56.14211, entitled "Blocking equipment in a raised position,"
provides, in pertinent part:
(a) Persons shall not work on top of, under, or
work from mobile equipment in a raised position until
the equipment has been blocked or mechanically secured
to prevent it from rolling or falling accidentally.
(b) Persons shall not work on top of, under, or
work from a raised component of mobil e equipment until
the component has been blocked or mechanically secured
to prevent accidental lowering. The equipment must
also be blocked or secured to prevent rolling.
(c) A raised component must be secured to
prevent accidental lowering when persons are working
on or around mobile equipment and are exposed to the
hazard of accidental lowering of the component.

689

civil penalty. Following an evidentiary hearing, Administrative Law Judge
William Fauver upheld the citation and assessed a civil penalty of $8,000. 15
FMSHRC 1590 (August 1993)(ALJ). For the reasons that follow, we affirm the
violation but remand for further analysis as to the civil penalty.
I.

Factual and Procedural Background
On January 12, 1991, William Allen, an employee of Dolese, was stringing
overhead electric cable from a manbasket that was suspended from the load line
of an 18 ton hydraulic crane at the Hartshorne Rock Quarry near McAlester,
Oklahoma. The manbasket was attached to the hook at the end of the crane's
load line and was not directly connected to the boom of the telescopic crane,
which could extend 72 feet. The operator of the crane extended the boom,
causing the load block (the pulleys and hook at the end of the load line) to
be pulled against the boom block (the end of the boom where the load line is
drawn across pulleys). As a result of the pressure exerted on the load line,
it broke and the manbasket fell about 19 feet to the ground. Allen suffered
multiple broken bones in his feet and a broken rib.

The crane was equipped with check valves and flow-restrictors to prevent
the boom from falling in the event of a hydraulic failure. The hydraulically
powered winch that\ raised and lowered the load.line was also equipped with
devices to prevent sudden movement of the load line in the event of a
hydraulic failure. The crane was not equipped with a device to prevent a
"two-block" situation from breaking the load line and causing the manbasket to
fall. As described above, a two-block occurs when the load block is pulled up
against the boom block. A crane equipped with an anti-two-block device stops
all movement when the load block reaches the boom block, thereby preventing
the load line from breaking.
· Dolese reported the accident to the Department of Labor's Mine Safety
and Health Administration ("MSHA"). Following an investigation, MSHA issued a
citation charging Dolese with a significant and substantial violation of
section 56.142ll(d).
The judge found that the manbasket was a "raised component of mobile
equipment" within the meaning of section 56.1421l(d). 15 FMSHRC at 1594. As
a consequence, he found that the safety standard required the manbasket to be
protected against accidental falling. Id. The judge then determined that
MSHA Program Policy Letter No. P90-IV-4 (September 5, 1990)("Crane PPL") was a
"reasonable application of section 56.142ll(d) in prescribing alternative
methods of protecting a manbasket from free and uncontrolled descent." Id.
He stated that the Crane PPL allows an operator to comply with the standard
(d) Under this section, a raised component of
mobile equipment is considered to be blocked or
mechanically secured if provided with a functional
load-locking device or a device which prevents free
and uncontrolled descent.

690

by: (1) attaching the manbasket directly to the boom, if it was equipped with
a device to prevent accidental descent of the boom; or (2) attaching the
manbasket to the load line, if the crane was equipped with an anti-two-block
device that would prevent the load line from breaking. Id. He further found
that Dolese had actual or constructive knowledge of the requirements of the
Crane PPL. Id. at 1596. The judge held that Dolese violated section 56.14211
ttby suspending the manbasket solely from the load line without providing a
safety device to prevent the line from breaking in a 'two block' situation."
l!L.. at 1594 . The judge assessed a civil penalty of $8,000, rather than the
$5,000 penalty proposed by the Secretary. The Commission granted Dolese's
petition for discretionary review.
II.

Disposition of Issues
A.

Reguirements of the Safety Standard

Dolese argues that the judge's finding that it violated section
56.142ll(d) is contrary to law. It contends that the manbasket was not a
"constituent part" of the crane and, thus, did not fall within the standard's
coverage of raised components . Dolese maintains that, in any event, it
complied with the standard because both the boom and the winch on the crane
were protected ~gainst uncontrolled descent ._ It argues that the Crane PPL did
not prohibit Do1~se from suspending a manbasket from the boom using the load
line. Dolese als°<> argues that section 56 .142ll(d) is unconstitutionally vague
and does not give notice to a person of reasonable intelligence that a work
platform suspended from a mobile crane is considered to be a raised component
of the crane· or that an anti-two-block device is required for such a platform.
The Secretary argues that the judge's findings are supported by
substantial evidence and accord with law. He maintains that the manbasket was
a raised component of the crane ~nd the standard was therefore applicable. He
contends that section 56.142ll(d) and the Crane PPL require an anti-two-block
device where a manbasket is attached to the load line of a crane . He argues
that the safety standard provided Dolese with sufficient notice of its
requirements.
We reject Dolese's assertion that the manbasket was not a raised
component of the crane and that it did not have notice to that effect. The
manbasket was attached to the hook on the load block at the end of the load
line. Thus, as the crane was being used, each part was in fact, a constituent
element, or component, of the mobile equipment. The load block. and manbasket
were in a raised position and, thus, were raised components of the crane at
the time of the accident.
Sections 56.142ll(a) through (c) provide that a raised component of
mobile equipment must be blocked or mechanically secured to prevent accidental
lowering when persons are working on top of, under or from the raised
component, or are working on or around mobile equipment and are exposed to the
accidental lowering of the component. Section 56.1~2ll(d) provides that the
raised component is considered to be blocked or mechanically secured if it is

691

provided with "a functional load-locking device or a device which prevents
free and uncontrolled descent." Thus , although it describes how the
requirements of subsections (a) through (c) must be implemented, subsection
(d) does not expre~sly require the use of an anti-two-block or similar
device. 3
Dolese contends that it was complying with the standard because both the
boom and the winch were protected by check valves and flow restrictors to
prevent uncontrolled descent of the boom and load line. These devices would
have prevented the free fall of the manbasket in the event of a failure in the
crane's hydraulic systems. It is undisputed, however, that these devices
offered no protection in the event of a two-block situation.
Because the standard does not set forth the precise requirements
relating to the use of the load line to support a work platform, we review the
Secretary's interpretative materials. We are mindful that the Commission and
the courts are obliged to give weight to the Secretary's interpretation of his
regulations. S. Rep. No. 181, 95th Cong., 1st Sess. 25 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong . , 2d
Sess. 49, I.egislatiye History of tbe federal Mine Safety and Health Act of
1211.. at 637 (1978).
MSHA's Program Policy Manual ("Manual") provides clarification of the
standard. The Manual states, in pertinent part:
\

\

Standards 56/57 . 14211 prohibit persons from working
on, under, or from raised portions of mobile equipment
or a component of mobile equipment until the equipment
has been blocked or mechanically secured. The
standards specifically require blocking of raised
components to prevent a "free and uncontrolled
descent" in the event of a sudden failure of the
system holding up the raised component. Hydraulic
telescoping boom cranes with flow restrictions or
check valves in the hydraulic system will prevent a
free and uncontrolled descent of the boom and attached
work platform.
Compliance with 56/57.14211 can also be achieved by
mine operators if the following ... safety features
are implemented when hoisting personnel with cranes:

3

Dolese argues that the judge erred in finding that it "violated 30
C.F.R. § 56.1421l(a), as qualified by§ 56.14211(d)," because MSHA did not
charge Dolese with a violation of subsection (a). D. Br. at 3, quoting 15
FMSHRC at 1597. Dolese's argument is misplaced. Subsection (d) of section
56.14211 does not stand alone but, rather, relates back to the previous
subsections. As the judge noted, subsection (d) explains the requirements
"provided in subsection 56.142ll{a) and other parts of§ 56.14211." 15 FMSHRC
at 1592.

.692

l.

use of an anti-two-block device with
automatic shutdown capabilities that will
prevent breaking of the load or whip line
in the event of a two-block condition (a
horn or light warning in lieu of automatic
shutdown is not sufficient);

Manual Volume IV, Part 56/57, p . 5Se (emphasis added). 4
The Manual thus provides that, if a work platform is attached directly
to the boom of a crane, flow restrictors or check valves in the hydraulic
system will fulfill the standard's requirements because the work platform
would be protected against an uncontrolled descent. The alternative
compliance method is applicable if, as in this case, the work platform is not
attached to the boom, but is, instead, attached to the load line by the hook
on the load block. The Manual explains that, under these circumstances , the
standard requires the use of an anti-two-block device. The language in the
Manual is taken directly from and is identical to the Crane PPL.
Prior to the issuance of the Crane PPL, the Secretary had required that
all work platforms be attached directly to the boom of hydraulic telescoping
cranes and had prohibited operators from suspending work platforms from load
lines . .fil Program Policy Letter No. P90-IV-2 (June 4, 1990). The Crane PPL
gave operators the , option of attaching a work pl~tform to the load line of a
crane, so long as ~~ anti-two-block device was provided and the other
requirements set forth in the Crane PPL were met.
The Secretary's interpretation of the standard is reasonable and
furthers the safety objectives of the Mine Act. 5 A safety standard "must be
interpreted so as to harmonize with and further ... the objectives of" the
Mine Act . Emery Minin& Co. v . Secretary of Labor, 744 F.2d 1411 , 1414 (10th
Cir. 1984). Thus, we reject Dolese's assertion that it complied with the
standard .
.,
Dolese also argues that section 56.142ll(d) does not provide clear and
sufficient notice that use of an anti-two - block device is required when a
manbasket is suspended from the load line. Some standards are "simple and
brief in order to be broadly adaptable to myriad circumstances.a Kerr-McGee
4

The Commission considers the Manual as evidence of MSHA's policies and
practices. See,~. Mettiki Coal Corp., 13 FMSHRC 760, 766-67 & nn.6 & 7
(May 1991). The U.S. Court of Appeals for the D.C. Circuit has stated that,
although the Manual is not binding on the Secretary, it is 8 an accurate guide
to current MSHA policies and practices." Coal Employment Proiect y. Dole, 889
F.2d 1127, 1130 n.5 (D.C. Cir. 1989).
5

We note that the Occupational Safety and Health Administration
("OSHA") requires the use of anti-two-block devices in similar circumstances.
29 C.F.R. § 1926.5SO(g)(3)(ii)(C) . Further , OSHA prohibits the use of cranes
to hoist personnel except where there is no ~afe alternative. 29 C.F.R.
§ 1926.SSO(g)(~).

693

Corp., 3 FMSHRC 2496, 2497 (November 1981); Alabama By-Products Corp., 4
FMSHRC 2128, 2130 (December 1982). "[I]n interpreting and applying broadly
worded standards, the appropriate test is not whether an operator had explicit
prior notice of the specific prohibition or requirement, but whether a
reasonably prudent person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific prohibition or
requirement of the standard." Ideal Cement Co. 12 FMSHRC 2409, 2416 (November
1990). Because section 56.1421l(d) does not specifically require the use of an
anti-two-block device when the load line of a crane is used to hoist miners,
it is appropriate to apply the objective standard of the reasonably prudent
person test in this instance.
We agree with the judge's conclusion that the Crane PPL is clear as to
the requirement that an anti-two-block device with automatic shutdown
capabilities must be used when a work platform is attached to the load line of
a crane rather than to the boom. Thus, a reasonably prudent person familiar
with the mining industry would have recognized the requirement of the
standard. Consequently, we reject Dolese's notice argument.
B.

Assessed Penalty

Dolese contends that the judge failed to base his penalty assessment on
the Secretary's civil penalty regulations set forth in 30 C.F.R. Part 100.
Specifically, it ·?rgues that the accident did not qualify for a special
assessment under lO C.F.R. § 100.5.
The Commission has consistently held that, in assessing penalties based
on the record developed in adjudicatory proceedings, the Commission is not
bound by the Secretary's Part 100 regulations. Those regulations are intended
to assist the Secretary in proposing penalties . Sellersburg Stone Co., 5
FMSHRC 287, 291 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984);
Youghiogheny & Oh~? Coal Co., 9 FMSHRC 673, 678 (April 1987).
Dolese also argues that the judge did not adequately consider and apply
the six statutory criteria set forth in section llO(i) of the Act. 6 The
6

Section llO(i) provides:
The Commission shall have authority to assess
all civil penalties provided in this [Act]. In
assessing civil monetary penalties, the Commission
shall consider the operator's history of previous
violations, the appropriateness of such penalty to the
size of the business of the operator charged, whether
the operator was negligent, the effect on the
operator's ability to continue in business, the
gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve

694

judge determined that the gravity of the violation was high. 15 FMSHRC at
1597. He found that the miner in the manbasket was seriously injured and that
the violation could have resulted in death or permanent disabling injuries.
Id. at 1596. Contrary to the assertion of Dolese, the judge's consideration
of the potential for death or serious injury posed by the viol~tion is
appropriate in applying the gravity criterion.
The judge considered factors indicative of negligence. He found that
two-blocking predicaments are foreseeable and mechanically preventable . 15
FMSHRC at 1597. He also found that Dolese had actual or constructive
knowledge of the anti-two-block requirement and that Dolese's failure to
install an anti-two-block device "reflects a serious disregard for employee
safety ... Id. at 1596-97. However, we cannot determine from the decision
whether he specifically applied the negligence criterion in assessing the
penalty.
Moreover, the judge did not discuss the history of previous violations,
the size of the business, Dolese's ability to continue in business or Dolese's
good faith abatement. In addition, it appears that the judge considered a
factor that is not applicable under the Mine Act. He stated that "mental
anguish should be considered when an employee is jerked by a manbasket, hears
threatening sounds, looks up , and sees his one support (the cable) snap in
two, and then immediately crashes to the ground." 15 FMSHRC at 1596.
Congress did not ipclude mental anguish as a factor to be considered in
assessing civil peri~lties .
·
The Commission has held that, when an operator contests the Secretary's
proposed penalties, thereby obtaining the opportunity for a hearing before the
Commission, findings of fact on the statutory criteria must be made by the
judge. Sellersburg Stone, 5 FMSHRC at 292. In Pyro Mining Co. y. fMSBRC, 3
Mine Safety & Health Cas.(BNA) 2057, 2059, O.S.H. Dec.(CCH) ! 27,599, 785 F.2d
310 (Table)(6th Cir . 1986), 7 the court remanded a proceeding to the
Commission because the judge articulated findings of fact on only four of the
criteria. The court held that "[n]ot only must the Commission consider [the]
criteria, it is our opinion that the Commission must provide in its order
findings of fact on each of the statutory criteria." Id . Findings are
critical if the judge is assessing a penalty that differs significantly from
that proposed by the Secretary. Here the judge increased the penalty by 60X.

rapid compliance after notification of a violation.
In proposing civil penalties under this [Act], the
Secretary may rely upon a summary review of the
information available to him and shall not be required
to make findings of fact concerning the above factors.
30 u.s .c. § 820(i).
7

The Sixth Circuit's decision in Pyro Mining was not selected for fulltext publication by the court.

695

We remand this proceeding to the judge for consideration of the
statutory penalty criteria. The judge shall enter findings for each criterion
and, based on his findings, assess an appropriate penalty.
III.

Conclusion
For the foregoing reasons, we affirm the judge's conclusion that Dolese
violated 30 C.F.R. § 56.1421l(d). We vacate that portion of the judge's
decision discussing the assessment of a civil penalty and remand for
reconsideration on this record consistent with this decision.

Doyle, Commissioner

Distribution
Peter T. Van Dyke, Es q .
Lytle, Soule & Curlee
119 North Robinson, Suite 1200
Oklahoma City, OK 73102
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Ernest A. Buford, Esq.
Office of the Sqlicitor
U.S. Department of Labor
525 Griffin St., Suite 501
Dallas, TX 75202
Administrative Law Judge William Fauver
Federal Mine Safety & H~allh Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

696

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

20006

April 21, 1994
SECRETARY OF l.ABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos.

KENT 92-380
KENT 92 -419
KENT 92-420

V.

SPURLOCK MINING COMPANY, INC.

Docket Nos.

KENT 92-306
KENT 92-307

and

KENT 92-323
KENT 92-324

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

KENT 92 - 608
KENT 92-609
KENT 92-701
KENT 92-836
KENT 92-837
KENT 92-838
KENT 92 - 889

v.

SARAH ASHLEY MINING COMPANY, INC .
\

BEFORE:

Holen, Chairman; Backley and Doyle, Commissioners 1

DECISION
BY THE COMMISSION :

These consolidated civil penalty proceedings arising under the Feder al
Mine Safety and Health Act of 1977, 30 U.S.C . § 801 et seq. (1988)("Mine Act"
or "Act"), raise the issue of whether Commission Administrative Law Judge Gary
Melick, in assessing penalties, properly considered the effect of a penalty on
an operator's ability to continue in business, one of the penalty criteria set
forth in section llO(i) of the Act, 30 U. S.C . § 820(i). 2 15 FMSHRC 629
1

Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves as a panel of three members to exercise the powers
of the Commission.
2

Section llO(i) provides in relevant part :
In assessing civil monetary penalties, the
Commission shall consider the operator's history of
previous violations, the appropriateness of such
penalty to the size of the business of the operator
charged, whether the operator was negligent, the

697

(April 1993)(AIJ). The judge determined that Spurlock Mining Company
("Spurlock") and Sarah Ashley Mining Company ("Sarah Ashley")("the
operators"), were no longer in business, and directed them to pay penalty
assessments of $1,197 and $7,382, respectively, as proposed by the Department
of Labor's Mine Safety and Health Administration ("MSHA"). Id: at 633. The
Commission granted the operators' petition for discretionary review, which
challenges the penalties. For the reasons set forth below, we affirm the
judge's decision in result.
I.
Factual and Procedural Background
This case involves 28 citations issued to Spurlock and Sarah Ashley.
The parties did not dispute the violations and a hearing was held solely on
penalty issues.
Hobart Anderson, who represented both operators and was the only witness
at 'the hearing, is founder, president and chief operating officer of Spurlock
and Sarah Ashley. 15 FMSHRC at 631. Both operators are closely-held
corporations, wholly owned by Hobart Energies Corporation, Inc. ("Hobart").
Id. Anderson and David Griffith, Anderson's former accounting partner, are
directors and offi~ers of both operators. Id. They, along with two other
individuals, own al~ the stock in Hobart.
Neither operator was producing coal at the time of the hearing.
Spurlock ceased mining in November, 1991, and Sarah Ashley did so in April,
1992. Anderson testified that the companies had not been dissolved and that
he hoped to make them operational in the future. Tr. 67.
Before the judge, the operators asserted that the proposed penalties
would affect their ability to continue in business. The judge found that,
because the companies were . no longer in business, the penalty criterion of
ability to continue in business was not relevant. 15 FMSHR.C at 630. He
determined that the operators were liable for the penalties and that the
financial condition of the operators was "only an issue of collection" for the
Secretary. Id. at 630-31.
The judge stated that , if the criterion were applicabie in this case,
"the relevant operating enterprise for evaluating the criterion ... must
include not only Spurlock and Sarah Ashley but also, under either an equity
... or . . . alter ego theory, the individual shareholders of the larger
operating enterprise." Id. at 631 . In reaching this conclusion, · the judge
applied Kentucky law to "pierce the corporate veil." Id. He then found that
Spurlock and Sarah Ashley had failed to prove that the proposed penalties
effect on the operator's ability to continue in
business, the gravity of the violation, and the
demonstrated good faith of the person charged in
attempting to achieve rapid compliance after
notification of a violation.

698

would affect their ability to remain in business and directed them to pay the
penalties proposed by MSHA. ..I!L.. at 633.
II.

Disposition
The operators contend that the judge erred by failing to take into
consideration the effect of the proposed fines upon their ability to continue
in business because "either company could re-open existing mines ... if
suitable financing arrangements could be made. 11 PDR at 2. The operators also
object to the judge's decision to pierce their corporate veils. PDR at 3.
They ask the Commission to either eliminate or reduce the penalties. PDR at
3. In response, the Secretary argues that no reduction of penalties is
warranted when an operator, no longer in business, has substantial remaining
assets. S. Br. 8, 11. The Secretary also asserts that the operators failed
to prove that the assessed penalties would have an adverse effect on their
ability to continue in business sufficient to warrant a reduction in
penalties. S. Br. 12.
We note, preliminarily, that the penalties may not be eliminated, as
requested by the operators, because the Mine Act requires that a penalty be
assessed for each\ violation. 30 U.S.C. § 820(a); Tazco. Inc., 3 FMSHRC 1895,
1897 (August 1981)".,
We reject the judge's finding that the operators were out of business
because that finding is not supported by substantial evidence in the record. 3
Neither Spurlock nor Sarah Ashley has been dissolved. Tr. 67. Anderson
testified that he planned to resume operations at both mines if financing
could be secured. Tr. 67; see also PDR at 2. At the time of the hearing,
Sarah Ashley's equipment was valued at approximately $80,000 and Spurlock's at
approximately $86,000. Tr. 77. While the operators were not then producing
coal, there is no evidence that they would not res\lme mining operations in the
future. Compare Iron Mountain Ore Co., 8 FMSHRC 1840, 1849-50 (November
1986)(ALJ); CRD Coal Co., 2 FMSHRC 2247 (August 1980)(AL.J).
We conclude that the penalty criterion of ability to continue in
business applies in this case and we look to relevant case law for guidance in
3

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). 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 Consolic1ated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). While we do not lightly overturn a judge's
factual findings and credipility resolutions, neither are we bound to affirm
such determinations if only slight or dubious evidence is present to support
them. See, ~. Krispy Kreme Doughnut Corp. v. NI.RB, 732 F.2d 1288, 1293
(6th Cir. 1984); Midwest Stock Exchange. Inc. v. NLRB, 635 F.2d 1255, 1263
(7th Cir. 1980).

699

applying it. In Sellersburg Stone Co., 5 FMSHR.C 287 {March 1983), the
Commission held, "(i]n the absence of proof that the imposition of authorized
penalties would adversely affect [an operator's] ability to continue in
business, it is presumed that no such adverse effect would occur." Id. at
294. See also Pegg's Run Coal Co., 1 FMSHR.C 350, 351-52 {May 1979).
The operators contend that the penalties would affect their ability to
resume operations because it would be "impossible to get ... financing if
there are outstanding judicial liens upon equipment and accounts receivable
that could come in front of the claims of any such lender." PDR at 2. We
decline to reduce the penalties based on the operators' mere speculation that
the penalties would result in the imposition of judicial liens and that those
liens would foreclose financing.
The operators failed to introduce specific evidence to show that the
penalties would affect their ability to resume operations and to continue in
business. At the hearing , Anderson submitted the operators' 1990 tax returns
as well as their 1991 balance sheets and a number of tax liens and judgments
against the operators . Exs. R-1, A, B, D, F, H, I, K, L, M; R-2, A-1, A-2, B,
E, F; G. Ex. 1. The tax returns indicate that, while Spurlock had gross
receipts of $900 , 000 for the year and Sarah Ashley had gross receipts of
$1,400,000, both incurred losses. Ex. R-1, D; Ex . R-2, B. Neither the tax
returns nor the financial statements, which Anderson testified might not be
correct (Tr. 113-15), prove that payment of $1,197 by Spurlock and $7,382 by
Sarah Ashley would ~dversely affect their ability to continue in business if
they chose to do so . See Peggs Run Coal Co., 3 IBMA 404, 413-14 (November
1974)(financial statements showing a loss were not sufficient to reduce
penalties).
For the foregoing reasons, we affirm the judge's decision in result.
Consequently, we do not reach the issue of whether the criterion of the effect
of a penalty on an operator's ability to continue in business applies to an
operator who is out of business, nor do we reach the issues related to
piercing the corporate veil .

700

III.

Conclusion
Spurlock is directed to pay civil penalties in t h e amount of $1, 197 , a nd
Sarah Ashl ey is directed to pay civil penalties in the amount of $7 , 382.

Richard V. Backley, Commissioner

J

Distribution
Hobart W. Anderson, President
Sarah Ashley Mining Company
Spurlock Nining Company
P.O . Box 989
Ashland, KY 41105
Coll een A. Geraghty , Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wil son Blvd . , Suite 400
Arlington, VA 22203
Administrative Law Judge Gary Melick
Federal Hine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

701

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

April 21, 1994

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

v.
BROKEN HILL MINING CO., INC.

Docket Nos. KENT 93-410
KENT 93-550
KENT 93-633
KENT 93-634

This civil p~nalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, · 30 u.s.c. § 801 et seq. (1988) (•Mine Act•). On March
17, 1994, Administrative Law Judge Avram Weisberger issued a Default Decision
to Broken Hill Mining Company, Inc. (•Broken Hill•) for failing to answer the
judge's November 19, 1993 Order tci Show cause. The judge assessed the civil
penalty of $1829 proposed by the Secretary. For the reasons that follow , we
vacate the default order and remand for further proceedings.
On March 31, 1994, the Commission received a letter from Broken Hill's
President, Hobart w. Anderson, stating that the company, which is not
represented by counsel, responded to the Show Cause order on January 24, 1994,
by filing its Answer. Mr. Anderson stated that in so doing they believed they
were complying with the judge's order.
The judge's jurisdiction in this matter terminated when his decision was
issued on March 17, 1994. Commission Procedural Rule 69(b), 29 C.F.R.
§ 2700.69(b)(l993). 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.?0(a). We deem Broken Hill's letter to be a timely filed
Petition for Discretionary Review, which we grant. See, ~, Middle States
Resources. Inc., FMSHRC 1130 (September 1988).

702

On the basis of the present. record, we are unable to. evaluate the merits
of Broken Hill's position. In the interest of justice, we remand this matter
to the judge, who shall determine whether default is warranted. See Hickory
Coal Co., 12 FMSHRC 1201, 1202 (June 1990)
For the reasons set forth above, we vacate the judge's default order and
remand this matter for further proceedings.

Richard v. Backley, Conunissioner

Distribution
Hobart W. Anderson, President
Broken Hill Mining Company, Inc .
P.O. Box 356
Sidney, KY 41564
Mary Sue Taylor, Esq .
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd.
Suite B-201
Nashville, TN 37215
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

703

..'

,·

· .,;

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

20006

April 21, 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. YORK 92-106-M
YORK 92-107-M

v.

W.J. BOKUS INDUSTRIES, INC.
BEFORE: Holen, Chairman; Backley and Doyle, Commissioners 1
DECISION
BY THE COMMISSION:
This civil penalty proceeding against W.J. Bokus ~ndustries, Inc.
("Bokus Industries") arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"). The issue is
whether equipment in a garage used by both the operator's sand and gravel mine
and an asphalt plant was subject to Mine Act jurisdiction. Administrative Law
Judge Avram Weisberger vacated a citation and orders issued to Bokus
Industries by the Department of Labor's Mine Safety and Health Administration
11
(
MSHA") because, in the judge's view, the Secretary of Labor had not
established Mine Act jurisdiction over the cited equipment. 15 FMSHRC 1321
(July 1993)(ALJ). The Commission granted the Secretary's petition for
discretionary review. We reverse and remand.
I.

Factual and Procedural Background
William Bokus ("Bokus"), the president and owner of Bokus Industries,
owns a 63-acre tract of land in Warren County, New York, which is divided by a
stream. Bokus Industries operates a sand and gravel mine on the west side of
the stream. On the east side of the stream is an asphalt plant, leased to
Pallette Stone Corporation ("Pallette Stone") by High Peaks Asphalt, Inc.
("High Peaks"), another entity owned by Bokus.

1

Commissioner Nelson participated in the consideration of the case. 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 as a panel of three
members to exercise the powers of the Commission.

704

Until 1990, off-site mines supplied the asphalt plant with "aggregate,"
the raw material composed of sand and gravel used to make asphalt. In that
year, Bokus Industries' sand and gravel mine began supplying High Peaks with
aggregate. A screen on the east side of the property separates the gravel by
size and the material is then crushed in a secondary, non-permanent crusher.
15 FMSHRC at 1322; Tr. 185-88.
High Peaks also owns and leases to Pallette Stone a maintenance and
storage garage adjacent to the asphalt plant. The garage is used primarily
for the support of the asphalt plant. 15 FMSHRC at 1322; Tr. 133. Under its
lease with High Peaks, Pallette Stone has joint use of the garage with Bokus
Industries. B. Post-hearing Br. at 2. Employees of both entities use the
garage to store, repair and maintain equipment used in both operations. 15
FMSHRC at 1324; Tr. 108-15, 194-97. Crushing and screening equipment for the
sand and gravel operation is also fabricated there. Tr. 196-97. Next to the
garage is an office staffed by a Bokus Industries employee. Truck drivers
transporting raw material from the mine weigh their trucks at a scale and
report the weight at the adjacent office. 15 FMSHRC at 1323; Tr. 215-16.
On October 22, 1991, MSHA Inspector Randall Gadway conducted a regular
inspection of the mining operation and issued a number of withdrawal orders
pursuant to section 104(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l). 2 He
also inspected th~ garage, where a miner employed by Bokus Industries and a
Pallette Stone emp~oyee were working. The inspector observed seven unsecured
compressed gas cylinders and issued a section 104(d)(l) order to Bokus
Industries alleging a significant and substantial ("S&S") violation of
30 C.F.R. § 56.16005 caused by its unwarrantable failur~ to comply with the
standard. 3 Two of the cylinders were without valve covers and the inspector
issued another section 104(d)(l) order alleging a violation of 30 C.F.R.
§ 56.16006. 4 A third section 104(d)(l) order alleging a violation of 30
C.F.R. § 56.14115 was issued because the peripheral hood and tool rest had

2

Pursuant to a 1979 interagency memorandum of understanding between MSHA
and the Occupational Safety and Health Administration ("OSHA"), the sand and
gravel facilities are inspected by MSHA and the asphalt plant is inspected by
OSHA. 44 Fed. Reg. 22827, 22829-30 (April 17, 1979); see Tr. 13, 293-94.
3

Section 56.16005 provides: "Compressed and liquid gas cyiinders shall
be secured in a safe manner."
The S&S and unwarrantable failure terminology, taken from section
104(d)(l) of the Act, are special findings referring to more serious types of
violations.
4

Section 56.16006 provides: "Valves on compressed gas cylinders shall
be protected by covers when being transported or stored, and by a safe
location when the cylinders are in use."

705

been removed from a grinder. 5 The inspector also issued an imminent danger
order pursuant to section 107 of the Act, 30 U.S.C. § 817, with an
accompanying citation, alleging a violation of 30 C.F.R. § 56.12030 because a
wire leading to a fan mounted on a wood stove was exposed. 6 Puring the same
inspection and on a return visit the next day, the inspector issued further
withdrawal orders and a citation alleging a defective loader and a hole three
feet deep near the walkway between the office and the scales. See 15 FMSHRC
at 1325-30.
The Secretary proposed civil penalties against Bokus Industries for the
alleged violations. Bokus Industries contested the proposals and the matter
was heard by Judge Weisberger.
The judge concluded that the Secretary had failed to establish that the
cited cylinders, grinder, and stove fan were subject to Mine Act jurisdiction.
Referencing the definition of "mine" in section 3(h)(l) of the Act, the judge
reasoned that "structures, facilities, machines, tools, or equipment are
considered a mine . .. only if they are used in ... the extraction, milling, or
preparation of minerals." 15 FMSHRC at 1323-24. 7 The judge stated that,
5

A grinding machine is used for sharpening tools. See Tr. 223-24. A
peripheral hood e~closes the grinding wheel to contain the wheel if it breaks
apart. Tr. 218. ' A tool rest is a piece of metal placed in front of the
grinding wheel to prevent objects from being drawn into the moving wheel. Tr.
219, 224.
Section 56.14115 provides:
Stationary grinding machines . . . shall be equipped with -(a) Peripheral hoods capable of withstanding the force of a
bursting wheel ... ;
(b) Adjustable tool rests set so that the distance between
the grinding surface of the wheel and the tool rest [is ] not
greater than 1/8 inch .. ..
6

Section 56.12030 provides: "When a potentially dangerous condition is
found it shall be corrected before equipment or wiring is energized."
7

In relevant part, section 3(h)(l) of the Act provides:
"[C]oal or other mine" means ... an area of land
from which minerals are extracted in nonliquid form ...•
and ... lands, ... structures, facilities, equipment,
machines, tools, or other property ... , on the surface
or underground, used in, or to be used in, or resulting
from, the work of extracting such minerals from their
natural deposits ... , or used in, or to be used in, the
milling of such minerals, or the work of preparing ...
minerals ....

706

although it was "possible" that miners "might" use the cylinders or grinding
machine, the Secretary had failed to establish that such use "was more likely
than not." Id. at 1324. 8 The judge also found insufficient evidence
establishing Bokus Industries' ownership of the cylinders. Id. Accordingly,
the judge vacated the citation and the four orders related to items in the
garage. Id. at 1330 . With respect to the loader and the hole near the
walkway, he found that the loader and the office-scale area were integral to
the mining operation and concluded that the operator had violated the cited
standards. Id. at 1325-30.
II.

Disposition
On review, the Secretary contends that it is not necessary to establish
jurisdiction over the individual pieces of equipment in the garage because the
garage is subject to Mine Act jurisdiction as a "structure" or "facility"
within the meaning of section 3(h)(l) of the Act. 9 He reasons that, if a
facility is a "mine" within the meaning of section 3(h)(l), then everything
within it is subject to the Act under section 4. 10 Alternatively, the
Secretary argues that, even if he were required to establish jurisdiction over
the individual items, he proved that they were used in mining. Bokus
Industries did not file a brief on review.
\
Section 3(h)(l)(n.7 supra) broadly defines "mine" to include "equipment,
machines, tools, or other property . . . used in. or to be used in, ... the work
of extracting ... minerals ... or ... the milling of such minerals, or the
work of preparing ... minerals . . . . " (Emphasis added.) The legislative
history indicates that the Act's definition of "mine," although not without
limits, is to be interpre t ed expansively. The Senat e Committee largely
responsible for drafting the Mine Act stated: "[W]hat is considered to be a
mine and to be regulated under this Act [shall] be given the broadest possible
interpretation, and ... doubts [shall] be resolved in favor of ... coverage of
the Act." S. Rep. No. 181, 9Sth Cong., 1st Sess. 14 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 9Sth Cong., 2d
30 u.s .c. § 802(h)(l).
8

The judge did not expressly rule on whether the garage was a
facility subject to Mine Act jurisdiction . The parties' arguments below
addressed whether the cited equipment in the garage was subject to Mine Act
jurisdiction. See 15 FMSHRC at 1323-24.
9

The Secretary asserts that the judge "accepted that MSHA had
jurisdiction over the garage." He infers that the judge would not have
examined jurisdiction over items in the garage unless he assumed that MSHA had
jurisdiction over the garage itself. S. Br. at 4 & n.7.
10

Section 4 provides broadly that each mine involved in commerce, and
each operator of, and miner in, such mine, is subject to the Act. 30 U. S.C.
§ 803.

707

Sess., I.egislative History of the Federal Mine Safety and Health Act of 1977,
at 602 (1978). See also, &.a..&.a.· Donovan y. Carolina Stalite Co., 734 F.2d
1541, 1551-55 (D.C. Cir. 1984); Cyprus Industrial Minerals Co. y. FKSJ:IRC, 664
F.2d 1116, 1118 (9th Cir. 1981); Marshall y. Stoudt's Ferry Preparation Co.,
602 F.2d 589, 591-92 (3d Cir. 1979), cert. denied, 444 U.S. 1015 (1980).
Moreover, such questions of statutory coverage must be resolved within the
Act's overall purpose of protecti~g miners' safety and health. .Ka.&,.., Carolina
Stalite, 734 F.2d at 1553-55.
We reject the judge's analysis and his conclusion as a matter of law .
The judge imposed upon the Secretary an inappropriate evidentiary burden by
requiring that he prove it was "more likely than not" that miners would use
the equipment in question. See 15 FMSHRC at 1324. Further, the judge's
application of such a test is inconsistent with the protective purposes of the
Act. Under section 3(h)(l), the Secretary need only establish that the items
in issue were used or to be used in mining.
We find that the record supports the Secretary's assertion of Mine Act
jurisdiction. It is undisputed that Bokus Industries miners worked in the
garage on mining-related tasks. The gas cylinders in the garage were
essentially indistinguishable. Bokus Industries owned some of them and its
miners used any available cylinder to perform their work. See Tr. 59-61, 6769, 77-81, 195. The judge based his determination, in part, on insufficient
evidence of owners~ip of the cylinders. 15 FMSHRC at 1324. However, the
record reflects that formality of title to the cylinders was not observed. We
also note the inspector's testimony that a defective cylinder could become a
"missile" striking anyone in the garage. See, ~. Tr. 23-24, 211. The
evidence thus shows that all the cylinders were used or to be used in mining
and that, irrespective of ownership, the cited conditions could affect miners
in the garage.
The grinder and the exposed wire on the stove fan present similar
considerations. The grinder was so situated that it was used or to be used in
maintaining mining equipment. Further, the grinder's cited defect could
injure miners working in the garage. Likewise, the stove warmed the garage
where miners worked and, thus, is an item of equipment used or to be used in
mining. The exposed fan wire could also injure miners working in the garage.
Accordingly, we reverse the judge's de~ermination as to Mine Act
jurisdiction. Our conclusions harmonize with the judge's other findings that
a loader and a walkway between the scales and the office were properly subject
to Mine Act jurisdiction. See 15 FMSHRC at 1325, 1327. Given the basis of
our disposition, we need not reach the issue raised by the Secretary, that the
garage was a "structure" or "facility" used in mining and, therefore, a "mine"
within the meaning of section 3(h)(l) of the Mine Act.

708

III.

Conclusion
For the reasons discussed above, we reverse and vacate the judge's
determination as to jurisdiction. We remand for resolution of the remaining
issues as to the merits of the citation and orders in question, special
fi~dings and appropriate penalties for violations found.

Arlene Holen, Chairman

{/~
I )t..,,=:--J---

<---<~ //.
~- -·Ric~ard Backley, Commissioner
,,/ - /

/7 /_

-

V.

Doyle, Commission

Distribution
Tana M. Adde, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
W. J. Bokus, President
W. J. Bokus Industries, Inc.
30 Mill Road
Greenfield Center, MY 12833
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

709

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

April 22, 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 93-312

v.

J.A.L. COAL COMPANY, INC.

BEFORE:

Holen, Chairman; Backley and Doyle, Commissioners 1
ORDER

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988). On March 28, 1994, Chief
Administrative Law Judge Paul Merlin issued an Order of Default to J.A.L. Coal
Company, Inc. ("J.A.L."), for its failure to answer the Secretary of Labor's
proposal for assessment of civil penalty and the judge's August 19, 1993,
Order to Show Cause. The judge ordered the payment of a civil penalty of
$3,900. For the reasons that follow, we vacate the default order and remand
this matter for further proceedings.
In a letter to the Secretary of Labor's Mine Safety and Health
Administration ("MSHA") dated March 31, 1994, which was forwarded to the
Commission and received on April 7, 1994; John A. Laurita, President of
J.A.L., in effect, requests that the order of default be vacated because
J.A.L. understood that a hearing would be held.
The judge's jurisdiction over this case terminated when his decision was
issued on March 28, 1994. Commission Procedural Rule 69(b), 29 C.F.R. §
2700.69(b)(l993). 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). We deem J.A.L.'s letter to be a timely filed Petition
for Discretionary Review, which we grant. See, ~. Mi<idle States Resources.
Inc., 10 FMSHR.C 1130 (September 1988).

1

Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we have
designated ourselves as a panel of three members to exercise the powers of the
Commission.

710

On the basis of the present record, we are unable to evaluate the merits
of J .A.L. 's position. In the interest of justice, we remand this matter to
the judge, who shall determine whether default· is ·warranted. ~Hickory Coal
Co., 12 FMSHRC 1201, 1202 (June 1990).

711

Distribution
John A. Laurita, President
J A L Coal Company
130 Fayette St.
Morgantown, WV 26505
Caryl A. Casden, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Nerlin
Federal Mine Safety & Health Review Comi11ission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

\

712

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR

WASHINGTON, D.C.

20006

April 25, 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)
Docket No. WEVA 92-922

v.

CONSOLIDATION COAL COMPANY
BEFORE:

Holen, Chairman; Backley and Doyle, Commissioners 1
DECISION

BY THE COMMISSION:
In this civil\ penalty proceeding, arising under the Federal Mine Safety
and Health Act of 19.7 7, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"),
the issue is whether a mine operator may prohibit the miners' representative,
who is an employee, from accompanying an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA") if the operator has a
good faith,, reasonable belief that the area to be inspected is too dangerous
to permit such walkaround. 2 Administrative Law Judge Roy J . Maurer held that
an operator may not restrict the walkaround right in such circumstances. 15
FMSHRC 768 (April 1993)(ALJ). For the reasons set forth below, we affirm the
judge's decision.

1

Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves as a panel of three members to exercise the powers
of the Commission.
2

Section 103(£), the Mine Act's "walkaround" provision, provides in
relevant part:
Subject to regulations issued by the Secretary, a representative
of the operator and a representative authorized by his miners
shall be given an opportunity to accompany the Secretary or his
authorized representative during the physical inspection of any
coal or other mine made pursuant to the provisions of subsection
(a) of this section, for the purpose of aiding such inspection and
to participate in pre- or post-inspection conferences held at the
mine.
30 u.s.c. § 813(f).

713

I.

Factual and Procedural Background
On January 13, 1992, MSHA inspector Thomas May arrived at Consol's
Humphrey No. 7 Mine and advised Robert Smith of Consol's safety department and
Sam Woody, the miners ' representative, that he was going to travel to the
mine's northwest longwall panel to inspect the northwest bleeder. Tr. 17-19.
The inspector's action was prompted by a disparity between the methane
readings he had obtained on the surface and those reflected in Consol's
records . Tr . 20, 82.
Until April 1991, the northwest bleeder had been traveled weekly to
check methane levels. By letter dated March 28, 1991, Consol had requested
that MSHA waive the underground evaluation and allow it to monitor the fan's
effectiveness by taking methane readings from the surface. In its letter,
C.E. Bane, Consol's Regional Safety Manager, expressed his concern that
individuals were traveling old underground areas, because "a potential hazard
can exist." Gov. Ex. 4. On April 22, 1991, MSHA agreed to the waiver. No
underground examinations of the northwest bleeder had been performed in the
eight months preceding Inspector May's January 13 inspection.
Consol's general mine superintendent, John Higgins, was notified of
May's intention to .inspect the northwest bleeder. By May's account, Higgins
told him that he would not permit either the walkaround representative or the
company representative to accompany the inspector past the man door at the six
northwest cut-through because the area had not been pre-shifted and because of
Higgins ' belief that the area was dangerous. Tr. 26-27.
During the course of the inspection, Smith and Woody accompanied May
only to the man door at the six northwest cut - through and May proceeded alone
to the Brock Fan area. He returned about an hour later. Based on the methane
concentrations in the area, he issued a section 107(a) imminent danger order,
shutting down the longwall. Tr. 35 .
That evening, after Consol called to tell him that the methane problems
had been corrected, Inspector May returned to the mine. He met with John
Webber, also of Consol's safety department, and with miners' representative
Richard Matthews. Mine superintendent Ron Weaver told May that no miners'
representative could accompany the inspector to the northwest bleeder but that
Consol shift foreman Rick Pauley would be going to the bleeder with him. Tr.
38. The inspector and Pauley then went to the northwest bleeder . . Finding the
methane level there to be less than two percent, the inspector terminated the
order. Tr. 41 .
Two days later, May issued the section 104(a) citation at issue for
Consol's failure to all ow the miners' representative to accompany him on h is
inspection. The citation stated:
The operator did not give the representative, authorized by the
miners, the opportunity to accompany an authorized representative
of the Secretary. On day .shift and afternoon shift on 01 - 13- 92

714

the miner representative was not permitted to accompany me on my
physical inspection of the northwest bleeder system ....
Gov. Ex. 2.
At the hearing, inspector May testified that he did not find the entry
unsafe, although he did acknowledge that methane is generated in the gob. Tr .
56-58. He found the area to be well cribbed, with very little pressure on the
cribs and with very little rib sloughage. Inspector May further testified
that he took safety precautions before going beyond the man door. Tr. 74.
The inspector also stated that, if he had encountered an unsafe area, he would
have stopped and would also have stopped the miners' representative . Tr. 74.
Consol's witness, general mine foreman Eldon Hagedorn, stated that
employees were not permitted to travel into the northwest bleeder. Tr. 90.
Foreman Hagedorn explained the dangers that motivated Consol first to prohibit
the company and walkaro.u nd representatives from accompanying the inspector and
later to prohibit the walkaround representative from accompanying him:
Well, that area back in there was approximately 8,000
feet behind the existing longwall face. There's roof
conditions in there that constantly change. There
could be methane in certain areas that they could
wander · . into. By not being examined you're just not
sure wh~.t changes are made back there. And we just
feel it's unsafe to send anybody into that area.
Tr. 91.
Consol safety supervisor Stanley Brozik also testified as to dangers
that could be present:
The area had~'t been examined [by anyone] for the last
--- roughly eight and a half, nine months ... [a]nd in
an area such as that, over 4,000 feet, there could be
numerous things, bad top, gas, shortage of oxygen. A
lot of dangers that could be encountered . . ..
Tr. 103.
Consol employee Robert A. Smith testified that he considered inspector
May ' s visit to the Brock Fan area to be unusual because the area was not
traveled by Consol employees. Tr . 112. In his view, the dangers .in that area
were the absence of an intake escapeway , methane liberation, the potential for
oxygen deficient air and bad roof. Tr. 113 - 114 .
In affirming the citation, Judge Maurer stated:
The Commission has emphasized repeatedly that the
walkaround rights granted miners' representatives by
section 103(f) of the Mine Act are a vitally important
statutory right granted to miners and their

715

representatives by the Act. And I can find no
authority, nor has respondent been able to cite me
any, for the proposition that the opportunity to
engage in walkaround can be restricted by the operator
based on potential danger to the employee/miner's
representative.

15 FMSHRC at 771-772. 3
The Commission granted Consol's petition for discretionary review and
permitted the National Coal Association ( "NCA" ) to participate as amicus
curiae.
II.
Disposition

On review, Consol, referencing section 2(a) and (e) of the Mine Act,
contends that construing section 103(£) to provide the walkaround
representative with an absolute right to accompany the inspector conflicts
with the mine operator's primary obligation to protect its employees from
harm. 4 Consol asserts that, in light of this obligation, it should be able
to refuse the walkaround representative access to areas it "reasonably
considers to be to() dangerous to enter." Consol Br. 3.
\\

The Secretary" of Labor ("Secretary") asserts that an operator's good
faith, reasonable belief that a mine area is hazardous is not sufficient
grounds to deny a miners' representative the right to accompany the inspector
because such a construction of section 103(£) is contrary to its plain
language, its legislative history and its underlying purpose. The . Secretary
states that, alternatively, if the language is considered ambiguous , deference
is due to his interpretation of the provision.

3

The judge did not reach the issue of whether the northwest bleeder
system was too dangerous to inspect or dangerous at all on the day in
question. 15 FMSHRC at 771. Nor do we.
4

Section 2 provides, in part:
Congress declares that -(a) the first priority and concern of all in the coal
or other mining industry must be the health and safety
of its most precious resource -- the miner;
(e) the operators of . . . mines with the assistance of
the miners have the primary responsibility to prevent
the existence of such conditions and practices in such
mines;

30 U.S.C. § 80l(a), (e).

7i6

Amicus NCA, referring to Chevron. U.S.A .. Inc. y. Natural Resources
Defense Council. Inc., 467 U.S. 837 (1984), argues that the Secretary's views
are not entitled to "Chevron-based deference" because the Secretary has failed
to issue regulations or policies to fill the gap left by Congress on this
issue. NCA Br. 7 . NCA notes other restrictions that have been applied to
section 103(f): its being subject to regulations and an interpretative
bulletin issued by the Secretary; limits on walkaround compensation; filing
requirements as to walkaround representatives; and nonemployees' walkaround
rights being contingent upon waivers of liability. Thus, NCA asserts that the
103(f) right is subject to reasonable restrictions and, because the walkaround
at issue in this case involves an unsafe practice, barring the representative
is reasonable. NCA Br. 8. 5
We note preliminarily that the walkaround right provided in section
103·(f) existed under the Federal Coal Mine Health and Safety Act of 1969, 30
U.S.C. § 801 et seq. (1976)(amended 1977)("Coal Act"). That provision stated:
At the commencement of any inspection of a coal mine
by an authorized representative of the Secretary, the
authorized representative of the miners at the mine at
the time of such inspection shall be ·g iven an
opportunity to accompany the authorized representative
of the\ Secretary on such inspection.
30 U.S.C. § 813(h) (1976)(amended 1977)(emphasis added).
In enacting the Mine Act, Congress continued the Coal Act's broad
application of the walkaround right and expanded rights incident to it. The
Conference Report on S.717, the Senate's version of the bill, explained:
The conference substitute expands the concept of
miners' participation in inspections by authorizing
miners' representatives to participate not only in the
actual inspection of a mine, but also in any pre- or
post-inspection conferences held at that mine.
R.R. Conf. Rep. on S. 717, 95th Cong., 1st Sess. (1977), reprinted in Senate
5
Although NGA has referenced MSHA's letter granting Consol a waiver of
the underground examination of the bleeder as evidence that the area was
extremely dangerous, we note that Consol's letter expressed concern only that
a "potential hazard can exist" (Gov. Ex. 4) and that MSHA's approval of the
request did not express concurrence in Consol's assessment of potential
hazards. MSHA granted the waiver without comment. (Gov. Ex. 3)

NCA further argues that exercise of the walkaround right would have
conflicted with other safety standards such as 30 C.F.R. § 75.364, which
allows only certified persons in the bleeders, and 75.303(a) and 75.314, which
require a pre-shift examination before others enter underground areas. We do
not reach these issues because they were not raised before the judge. Section
ll3(d)(2)(A)(iii).

717

Subcommittee on Labor, Committee on Human Resources , 95th Cong., 2d Sess . ,
Legislatiye History of the Federal Mine Safety and Health Act of 1977, at 1361
(1978). In addition to adding a right of the miners' representative to
participate in inspection conferences, the Mine Act added a compensation
provision in section 103(f). The Mine Act did not restrict the types of
inspections to which the walkaround right applies.
The only qualification to the walkaround right in section 103(f) is that
it is subject to regulations issued by the Secretary. The Secretary's
regulations have not limited the walkaround right in the manner urged by
Consol. 6 Moreover, although Congress recognized that a walkaround
representative could be exposed to danger, (the inspections enumerated in
section 103(a) include inspections to determine whether an imminent danger 7
exists as well as inspections of especially hazardous conditions), it did not
curtail the walkaround right in dangerous situations. 8 Thus, upon "employing
traditional tools of statutory construction , including text, structure and
legislative history," Coal Employment Project v. Dole, 889 F.2d 1127, 1131
(D.C. Cir. 1989) ; Chevron at 842-43, we conclude that Congressional intent is
clear on this issue . Accordingly, we hold that section 103(f) precludes
denying the walkaround right on the basis of an operator's good faith,
reasonable belief that the area to be inspected is too dangerous to be

6

The Secretary has issued an Interpretative Bulletin which, in essence,
excludes from section 103(f) walkaround rights certain inspection activities
that are unrelated to enforcement. 43 Fed. Reg. 17546-48 (April 25, 1978).
7

An "imminent danger" is defined in section 3 (j) of the Act as "the
existence of any condition or practice in a coal or other mine which could
reasonably be expected to cause death or serious physical harm before such
condition or practice can be abated." 30 U.S.C. § 802(j).
8

Section 103 provides, in relevant part:
(a) Authorized representatives of the Secretary ...
shall make frequent inspections . . . in coal or other
mines each year for the purpose of .. . (3) determining
whether an imminent danger exists
(i) Whenever the Secretary finds that a coal or other
mine liberates excessive quantities of methane or
other explosive gases during its operations, ... or
that there exists in such mine some other especially
hazardous condition, he shall provide a minimum of one
spot inspection by his authorized representative of
all or part of such mine during every five working
days at irregular intervals.

30 U.S.C . § 813(a), (i) .

718

entered. 9
The right of a miners' representative to accompany the inspector on all
section 103 inspections has been consistently recognized by the. Commission and
the courts. It has been uniformly held that the wal karound right includes the
right to accompany the inspector during section 103(i) "spot inspections"
which, significantly, occur in mines that liberate excessive quantities of
explosive gases or that present some other especially hazardous condition.
See,~. Helen Mining Co . , 1 FMSHRC 1796 (November 1979), rev'd on other
grounds, sub nom. United Mine Workers v . FMSHRC, 671 F . 2d 615 (D . C. Cir),
cert. denied, 459 U.S. 927 (1982). In that case, the Court of Appeals for the
D. C. Circuit concluded that all safety inspections are made pursuant to
section 103(a) of the Mine Act, and include inspections carried out to
determine whether an imminent danger is present . 671 F.2d at 619, 623-24.
Other circuit courts have also held that the walkaround right applies to
spot inspections. See, ~. Consolidation Coal Co. v . FMSttRC 740 F.2d 271
(3d Cir. 1984). In Monterey Coal v. FMSHRC 743 F.2d 589 (7th Cir. 1984), the
court held that, under the Coal Act, "an authorized representative of miners
was entitled to accompany a federal mine inspector on any mine inspection ...
[and that] [n]othing in the legislative history [of the 1977 Mine Act]
indicates any intent to restrict the pre-existing right under the Coal Act to
accompany the inspe,c tor on 'any inspection.'"
lQ.... at 590, 593.
\

We note that the Secretary does not assert an absolute requirement that
miners' representative be permitted to accompany the inspector without
regard to the circumstances. The Secretary recognizes that mine inspectors
are responsible for the safe exercise of the walkaround right and that there
may be instances when an inspector, in the course of conducting an inspection,
will decide against permitting the walkaround representative to enter a
particular area of a mine "where necessary to protect the safety of miners."
Sec . Br. 15-16 n.9 .
~he

9
Because we have decided this case based on Congress' clear intent, we
do not address the Chevron deference arguments made by the Secretary and
amicus NCA .

719

III.
Conclusion

For the reasons discussed above, we affirm the judge's determination
that an operator may not prohibit a miners' representative from accompanying
the inspector during a section 103(a) inspection on the basis of a good faith,
reasonable belief that the repres.entative would be exposed to a hazard.

Arlene Holen, Chairman
.:"
. ..
·•

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.. -;

,

,.

..;~. ,..,:::_ :_.-.-,;:,1/ ;,.,/

·<. .. :.:,.- V.._"'•..J'

l

/

Richard V. Backley, Commissioner

Distribution
Elizabeth Chamberlain, Esq .
Consolidation Coal Company
1300 ~ashington Road
Pittsburgh, PA 15241
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S . Department of Labo r
4015 Wilson Blvd .
Arlington, VA 22203
Michael F. Uuffy, Esq .
~ationa l Coal Assn.
1130 17th Street, N. W.
Washington, D.C . 20036
Administrative Law Judge Roy J. Maurer
Federal Hine Safety & iiealth Review Commissio11
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

720

/;

,:. ~:;: t~-;,~ .2>.:.....-.....--~,.....
,_,

/,

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

20006

April 25, 1994

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 94-306
A.C. No . 01-01247-04106

V.

JIM WALTER RESOURCES, INC.
BEFORE:

Holen, Chairman; Backley and Doyle, Commissioners 1
ORDER

BY THE COMMISSION:
\

In this matter 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 Conunission a motion seeking to reopen
an uncontested civil penalty assessment that became a final order of the
Commission pursuant to section lOS(a) of the Mine Act, 30 U.S.C. § 815(a). As
the basis for its motion, JWR relies upon Fed. R. Civ. P. 60(b) ("Rule
60(b)"). The Secretary of Labor filed a response requesting an evidentiary
hearing before an administrative law judge to determine whether JWR's motion
should be granted. For the reasons that follow, we grant JWR's motion in
part.
The Commission received JWR's Motion for Relief from Final Order on
March 14, 1994. JWR states 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 penalty within the required 30day period set forth in 30 U.S.C. § 815(a). JWR asserts that its counsel had
an unusually heavy case load at the time and that there was an interoffice
delay in the transmittal of the penalty assessment to him. JWR asks the
Commission to · reopen this matter pursuant to Rule 60(b) so that it may file
its notice of contest. The proposed penalty has not been paid.
The Secretary's response requests a hearing to determine, inter alia,
whether the Commission has jurisdiction to reopen the case and, if so, whether
JWR has satisfied the requirements for reopening under Rule 60(b).
Section lOS(a) of the Mine Act requires that, after issuing a citation
1

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.

721

or withdrawal order to a mine operator 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." Id.
JWR failed to contest the proposed assessment within 30 days, and,
accordingly , it became a final order 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) . 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." Id. 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 this matter and
remand it 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 a timely contest. If the
judge determines tpat relief under Rule 60(b) is appropriate and permits JWR
to file a notice o ~ contest, this case 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 this
matter is remanded for assignment.

Arlene Holen: Chairman

~~._-, d ,A,,~~

Richard V. Backley, Commission~

722

Distribution
R. Stanley Morrow, Esq .
Jim Walter Resources, Inc .
P.O. Box 133
Brookwood , AL 35444
William Lawson, Esq.
Office of the Solicitor
u.S. Department of Labor
150 Chambers Buildin3
100 Centerview Drive
Birmingham, AL 35216
W. Christian Schumann, Esq.
Office of the Solicitor
U. S. Department of Labor
4015 Wilson Blvd .
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Sa,fety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

723

724

ADMINISTRATNE LAW JUDGE DECISIONS

PBDBRAL JIIRB SAPBTY A1ID BRAilPlf RBV1BW CC ....-CSS'IOB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEES8URG PIKE

FALLS CHURCH, VIRGINIA 22041

APR

5 1994

JAMES BOYD, on behalf of
LOCAL UNION 1468, UMWA
Complainants

:

COMPENSATION PROCEEDING
Docket No. KENT 92-51-C

v.

:

:

.

TROJAN MINING COMPANY ,
Respondent

Mine No. 1

15-11726

ORDER OF DISMISSAL
Before:

Judge Melick

On February 24, 1994, an order was issued directing
complainants to show cause on or before March 18, 1994,
why this case ·s hould not be dismissed. To date no response
to the order has been received. Accordingly, thi• case is
DISMISSED.
;\

~

I

,\

I

.'/
,\

I

i \_,, ,
Gary Meli
Acbninistr tive
Distribution:

Judge

v

Mr. James Boyd, Local Union 1468,
Elkhorn city, KY 41522 (Certified

Box 596,

c. Tom Anderson, President, Trojan Minlng Company,
P.O. Box 280 , Ashcamp, KY 41512 (Certified Mail)
/lh

725

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

APR

5 1994
CIVIL PENALTY PROCEEDING

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

:

v.

Docket No. PENN 92-385
A.C . No . 36-00907-03792
Shannopin Mine

SHANNOPIN MINING COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Melick

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 197 7 (the Act). Petitioner has filed a motion
to approve a settlement agreement and to dismiss the case. A
reduction in penalty from $206 to $144 is proposed. I have considered the representations and documentation submitted in this
case, and I conclude that the proffered settlement is acceptable
under the criteria set forth i~ Section llO(i) of the Act.
!\

WHEREFORE·, the motion f o' approval of se tlement is GRANTED,
and it is ORDERED that Respon nt pay a penal y of $144 within
30 days of this order .
I

Il ·

' l :~{\
\

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I:
•I

Melick
nistrati

.../

I

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(\1'\_

·...,,

Judge

Distribution:
Gayle M. Green, Esq., Office of the Solicitor , U.S. Department
of Labor, 14480 Gateway Buildi ng, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Joseph A. Yuhas, Attorney for Shannopin Mining Company,
P.O. Box 25, Barnesboro, PA 15714 (Certified Mail)
/lh
726

OFFICE OF ADMINISTRATIVE LA~ Jll>GES
2 SKYLINE, 10th FLOOR
5203 LEESIURG PIKE
FALLS CllURCH, VIRGINIA 22041

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

v.

TALON RESOURCES, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

5 1994

. CIVIL PENALTY PROCEEDING
.. Docket No. WEVA 93-16
.. A.C. No. 46-07445-03534
..: Campbell's Creek No. 2
. CIVIL PENALTY PROCEEDING

Docket No. WEVA 93-393
. A.C.
No. 46-07445-03551-A

\

RICHARD GARRETT, EMPLOYED BY
TALON RESOURCES
INCORPORATED, A/K/A
WYNCHESTER MINING COMPANY,
INCORPORATED,
Respondent

Campbell's Creek No. 2

..
.

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 93-402
A.C. No. 46-07445-03549-A

v.

Campbell's Creek No. 2
RICHARD ABRAHAM, EMPLOYED BY
TALON RESOURCES
INCORPORATED, A/K/A
WYNCHESTER MINING COMPANY,
INCORPORATED,
Respondent
DECISIONS
Appearances:

Heather Bupp-Habuda, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
Dina M. Mohler, Esq., Kevin A. Nelson, Esq., Kay,
Casto, Chaney, Love & Wise, Charleston, West
Virginia, for the Respondents.

Before:

Judge Koutras
727

...

Statement of the Proceedings
These consolidated proceedings concern proposals for
assessment of civil penalties filed by the petitioner against the
respondent pursuant to the Federal Mine Safety and Health Act of
1977. Docket No. WEVA 93-16, concerns a civil penalty proposal
filed by the petitioner against the respondent Talon Resources,
Inc., for an alleged violation of mandatory safety standard
30 C.F.R. § 75.1701. The petitioner seeks a civil penalty
assessment of $2,000, for the alleged violation.
Docket Nos. WEYA 93-393 and WEVA 93-402 concern civil
penalty proposals filed by the petitioner against the named
individual respondents pursuant to section llO(c) of the Act
for allegedly "knowingly" authorizing, ordering, or carrying
out the alleged violation served on Talon Resources in Docket
No. WEVA 93-16. The petitioner seeks civil penalty assessments
of $1,000, against each of the individual respondents for the
alleged violations.
The respondents filed timely answers denying the alleged
violations, and a consolidated hearing was held in Charleston,
West Virginia. The parties filed posthearing briefs and I have
considered their arguments in the course of my adjudication of
these matters.
Issues
In Docket No. WEVA 93-16, the issues include (1) whether the
corporate operator Talon Resources Incorporated (hereinafter
Talon), violated the cited mandatory safety standard~ (2) whether
the violation was "significant and substantial" (S&S), (3)
whether the violation was the result of an unwarrantable failure
by Talon to comply with the cited standard; and (4) the
appropriate civil penalty to be assessed, taking into account the
civil penalty assessment criteria found in section llO(i) of the
Act.
In the two individual section llO(c) cases, the principal
issue is whether or not the named respondents knowingly
authorized, ordered, or carried out the alleged violation, and
if so, the appropriate civil penalties that should be assessed
for the violation taking into accoun~ the relevant criteria found
in section llO(i) of the Act. Also in issue is whether or not
the violation was "S&S" and whether or not it was the result of
an unwarrantable failure to comply with the requirements of the
cited standard .

728

Applicable Statutory and Regulatory Provisions
l.

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

2.

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

3.

Commission Rules, 29 C.F.R.

§

2700.l ~ seg.

Discussion
The Section 104(d)(l) "S&S" citation No. 2729003, issued on
July 14, 1992, at 11:00 A.M . , by MSHA Inspector Leo R. Inghram,
cites an alleged violation of mandatory safety standard 30 C.F.R.
§ 75 . 1701, and it states as follows:
The No. 3 entry of the No. 4 panel section 002-0 mined
into an abandoned coal mine which could contain
dangerous accumulations of water and gases. The mine
was inac6essible and could not be examined for hazards.
Test hole's had not been drilled in any of the faces of
the No. 4 panel prior to cutting into the abandoned
mine. The mine operator continued to mine near the
area where he cut into the abandoned mine without
drilling test holes. A cross cut was mined between
No . 4 and 5 entries which is within 200 feet of the
abandoned mine (approximately 80 feet). Also, rooms
were started to the right in the No. 5 entry of the
No. 4 panel, and No. 1 room was approximately 175 feet
away from where No. 3 entry cut into abandoned mine.
The mine operator did not have a map showing the
abandoned mine and did not know how· far or near the
rest of the abandoned mine was to the No. 4 panel
section, yet the operator continued to mine in the
general area of the abandoned mine without drilling
test holes. The operator cut into the abandoned mine at
approximately 0930 on 7-13-92, and was observed mining
in the general area near the abandoned mine at 0900 on
7-14-92. The mine operator has since (about 1000 A.M.
7-14-92) obtained an uncertified map of the abandoned
mine, but has not transposed it on to his certified map
of the Campbell's Creek No. 2 mine.
MSHA Inspector r.eo R. Inghram. Jr. confirmed that he
conducted a mine inspection on July 14, 1992 , and issued a
violation because of the failure by Talon to drill test holes
while mining on an active section near an abandoned coal mine
that could not be inspected (Tr. 10) . He stated that he arrived

729

at the mine at 7:20 A.M., and that two state mine inspectors were
there. They told him that the respondent had cut into an old mine
and they proceeded underground to the number four panel section
to investigate the situation . Mr. Inghram found that the number
three entry had cut into an abandoned coal mine and that Talon
and JllSHA were unaware that the mine was there and it was not
shown on a map that had been submitted to MSHA (Tr. 12).

Mr. Inghram testified that he c i ted a violation of
section 75.1701, after determining that mining was conducted
within 200 feet of the abandoned adjacent mine without
drilling the required test bore holes. Referring to a mine map
(Exhibit G-2), he identified the area where the number three
entry cut through into the abandoned mine. He stated that he was
informed by the respondent operator that the breakthrough
occurred the previous day, July 13, at approximately 9:00 A.M.
(Tr. 15).
The inspector stated that after the breakthrough, mining
continued in t~e last open crosscut between the number four· and
five entries, and rooms were started to the right off the number
five entry. Although the entry numbers are not shown on the mine
map, he stated that it was a common industry practice to number
the entries from left to right, and he marked the map accordingly
(Tr. 17). He believed that mining was taking place and he
observed a mining machine loading a shuttle car , but was not
sure whether it was in the crosscut or in the number one room
(Tr. 18) •
The inspector stated that he determined that the crosscut
that was mined between the number four and number five entries
was within 200 feet of the abandoned mine by taking into account
the fact that the entries were on SO-foot centers, as shown by a
map of the number four panel that was obtained by the state
inspector from Talon and then given to him by the State inspector
(Exhibit G-3; Tr. 19). The inspector explained that the drawings
on the map were made "to try to determine a two hundred foot
length from where they cut into the old mine", and that he and a
state inspector (Gillian) used a rule or scale to make their
calculations while "trying to determine the probable two-hundred
foot limit line" (Tr. 21).
The inspector stated that the calculations shown on the map
were made the same day the citation was issued, and that the
calculations were made to determine how far the respondent would
have to retreat away from the abandoned mine in order to continue
•ining without drilling the required test holes (Tr . 21). He
explained that the solid line drawn on the map (Exhibit G-3),
indicates where the breakthrough occurred, and the broken line
reflects where mining could legally continue outby that line . He
determined that mining could legally continue in the number two,
three, and four rooms, and any areas outby the number two room,
730

without drilling test holes. Mining could have been done inby
the number two room but only if test holes were drilled in
advance (Tr. 22-23).
The inspector stated that the 200 foot limits as ·•hown on
the •ap (Exhibit G-3), were drawn at an angle because •where they
had cut through into the old mine, you could only see a short
distance back in there and it appeared that the entry from the
abandoned mine was coming in at this angle", as shown by the
solid line (Tr. 23). He explained that his calculations were
made "by visually looking at it" because he had no way of going
into the area (Tr. 23). He confirmed that at the time the map
was prepared, he and the state inspector did not have a map
relating to _the abandoned mine, and no one at the mine had such a
map (Tr. 24) . However, he recalled that he may have seen a copy
of the abandoned mine map on the day the citation was issued, or
the next day, but his notes reflect that the abandoned mine,
identified as the "Big Bottom Coal Company," had not been
recorded on the mine map at the time of his inspection (Tr. 27) .
The insp~ctor stated that previous to the breakthrough the
abandoned mine'. was not part of the respondent's mine, but he
believed that it would now be considered part of the mine because
during his last visit there the old mine was being ventilated
from the Campbell Creek mine breakthrough, and he has taken air
samples at the old mine entries, and noticed "a small stream of
water" coming out of one of the entries (Tr. 32-35). He
confirmed that he has never entered the old Big Bottom mine from
inside the Campbell's Creek Mine, and has no knowledge of anyone
else going into the old mine (Tr. 36).
The inspector described the condition of the breakthrough on
July 14, as follows at (Tr. 36-37):
A.

The number three entry had cut through into
the old mine in the left-hand corner of the
entry. And you could shine -- You could see
back in there a little ways with your light,
but the area was unsupported and it couldn't
be examined at that particular time.

Q.

Okay. How big a hole, as far as feet or
inches, would you say there was when you
arrived on the fourteenth?

A.

I'm not

Q.

Approximately.

A.

Approximately, I would say maybe right to ten
feet . I'm not sure.

;.·

731

Q.

Eight to ten feet high?

A.

Wide.

Q.

And how high?

A.

This is speculation. Normally, the coal in
this mine runs about ten foot high . So I
would say on the Campbell's Creek Number two
side , it was probably about ten feet high,
something like that.

Again, approximately.

The inspector stated that he could not approach close enough
to look into the old mine entry because the roof at the breakthrough area and corner were unsupported. Looking from a
distance, he estimated that there was probably two or three feet
of fallen rock on the old mine floor and that the height of the
entry appeared to be "six feet or so", but he could not get close
enough to look back into the old mine (Tr. 37-38).
The inspector stated that he based his "S&S" finding on the
fact that the old abandoned mine was not being ventilated other
than with the ai~ leaking through from the Campbell mine, and
that old mines can contain-low oxygen levels and have water
accumulations when they are not worked and water is not being
pumped out. He confirmed that he made some tests at the mi ne
opening during his i nspection and he found no methane, and the
oxygen was good . He explained that he was measuring the air
coming from the Campbell's Creek mine and going into the
abandoned mine, and he confirmed that air was being coursed
through the old mine from a blowing fan in the Campbell mine. He
determined that seven miners were affected by the citation, and
he identified the respondent Richard Garrett as the day shift
section foreman (Tr. 39-40). The inspector confirmed that old
abandoned mines that are not ventilated or pumped of water,
"could possibly contain dangerous accumulations of gas and water"
(Tr. 41) .
The inspector stated that after the initial breakthrough,
mining continued for approximately three shifts, and he assumed
that there were no hazardous conditions on the section while this
mining was taking place (Tr. 42). After the initial breakthrough, mining continued "off to the right" and no further
breakthroughs were made during this time (Tr. 44). The inspector
described the areas where mining continued and he marked the
entries and rooms on the mine map, and explained that the areas
that are "blackened in" on the map are the areas and rooms that
were mined after the breakthrough (Exhibit S-2; 45-46).
The inspector stated that he spoke with' foreman Garrett on
July 14, about the breakthrough, and informed him that he saw no
evidence of any test holes being drilled while mining was still
732

going on in the vicinity of the abandoned mine . Mr. Garrett
informed him that no test holes were drilled and stated that "we
don't have anything to drill with", and this is recorded in his
notes (Exhibit S-4, pg. 8, Tr . 48). Mr. Garrett also informed
him that he was aware of the fact that test holes were required
to be drilled when near an old mine , and that he had called
Mr. Abraham who told him to "start the mining to the right, off
number five entry", and the inspector assumed that Mr. Garrett
contacted Mr. Abraham on July 13, the day of the breakthrough
into the abandoned mine (Tr . 48-49).
The inspector stated that he decided to cite the violation
as a section l04(d) (1) unwarrantable failure citation because of
Talon's high negligence for continuing to mine in close proximity
to the abandoned mine without drilling test holes, and because
there was no map indicating the extent of the abandoned mine and
whether they were heading toward the old mine again (Tr. 49).
The inspector stated that according to his calculations the
number one room off the number five entry was approximately
175 feet from the original breakthrough at the number three
entry, and that the "probable two-hundred foot limit" shown by
the solid and broken lines on Exhibit S-3, was based on the
calculations that he and the state inspector made . He stated
that "as far as actually knowing the limits of the old mine, no,
we didn't know. And I don't think anybody else did either"
(Tr. 50).
The inspector confirmed that the initial breakthrough was an
accident and was not a violation. The violation was issued
because of the mining that continued within 200 feet of the
breakthrough area without drilling test holes to determine the
location of the old abandoned mine (Tr. 51) .
The inspector further explained the hazards associated with
the failure to test drill within 200 feet of an abandoned mine
(Tr. 51-57) . He stated that the date on the map showing the Big
Bottom Coal mine reflects that the last known date of mining was
December 10, 1925 (Tr. 57). He further explained his "S&S" and
"reasonably likely" gravity findings (Tr. 58-62).
The inspector stated that at the time of his inspection he
did not ask anyone whether or not they had entered the old
abandoned mine, and he saw no visible ev idence that anyone had
entered that mine. He believed that there was enough room from
the size of the breakthrough for someone to go into the old mine
(Tr. 63).
In response to further questions, the inspector confirmed
that he did not speak to Mr. Abraham when the citation was
issued, but he was not sure whether he spoke with him later that
day. The inspector stated that "there was a lot of confusion
733

going on outside. People were scurrying around, hunting a map"
(Tr. 64). He further stated that "they were looking for a map to
try to determine the location and extent of that old mine in
relation to where they were mining so they would have a general
idea of where to mine, probably away from that mine, I would say"
(Tr. 64) .
In response to a bench question as to whether he would have
issued a violation if Talon had produced a map showing that the
abandoned mine was further than 200 feet from where mining was
taking place on July 14, the inspector stated that "I think we
still had a violation because that mine was unsafely examined.
The roof was not supported in that mine. It was driven many
years ago" (Tr. 65). He explained that "the law requires them to
ex~mine an area of an abandoned mine when they approach within
two hundred feet of this mine" (Tr. 66). He explained further
that he would not have issued a violation if the respondent had
produced a certified map showing that the abandoned mine was
500 feet away (Tr. 66).
The inspector reiterated that no one, including Mr. Abraham,
informed him that anyone had entered the old mine and examined it
and found it safe. He stated that he first learned about someone
stating that they had entered the old mine during the taking of a
deposition in this case (Tr. 68).
on cross-examination, Inspector Inghram stated that Talon
was never required to drill test holes at the mine, and it was
not required to do so after he issued the citation (Tr. 72). He
confirmed that there was a second breakthrough approximately a
month after the initial one, and that he went to the mine to
examine the second incident and took notes. He confirmed that
the second breakthrough occurred on August 17, 1992, and that the
dotted line shown on map Exhibit S-2, showing the extension of
the 200 foot limit from the old mine was "essentially a
theorization of where that mine extends now" (Tr. 74). He
confirmed that after the second breakthrough the previous map
of the old mine received by Talon was not entirely accurate
(Tr. 74) •
The inspector confirmed that the conditions of the second
breakthrough were the same as the first one, but he never
required any test drilling, and he found no hazardous amounts of
water, methane, or oxygen. However, mining was discontinued in
the area and moved to a different area away from the breakthrough
(Tr. 75-76).
The inspector stated that the highlighted solid line shown
on •ap Exhibit G-3, is his estimation of the location of the
abandoned mine on July 14, 1992. He confirmed that he and the
state inspector drew this line based on "our observation of the
old mine, it appeared it was going in that general direction .
734

This is probable. This is not a survey", and that it was his
"best quess as to where the mine lay" (Tr. 77) . When asked if he
was wrong, he replied "I may be wrong about the direction , but
the mine was within that areas, according to the map that you
submitted to us" (Tr. 77) . He explained that map EXhibit s-2,
submitted to MSHA, clearly shows a broken line labeled "200 ft .
barrier", and that it falls within the crosscut at the No. one
room (Tr. 78) . He confirmed that this line does not go in the
direction of the entry that cut into the old mine, and that it
starts at the right-hand side of the Number three entry, and that
the place that was actually mined through and opened up was on
the left side of that entry (Tr. 79).
The inspector stated that he made no actual measurements to
determine that the number one room was within 200 feet of the
breakthrough, and that his calculations were based on the map
submitted to MSHA, and that the calculations made at the time the
citation was issued was based on an "imaginary line" of where he
believed the mine was located (Tr . 80) .
The inspector stated that he received no telephone call
reporting the initial breakthrough and that he was unaware of any
call made to MSHA by Mr . Abraham, or any calls to the state
inspectors. He confirmed that these inspectors were at the mine
because they knew about the breakthrough (Tr . 81). He confirmed
that he issued the citation becaus e mining was taking place
within 200 feet of the abandoned mine that could not be examined
tor accumulations of water and gases and no test holes were being
drilled (Tr. 82). He confirmed that his notes do not reflect the
exact location where mi ning was taken place on July 14, "other
than they were mining to the right, in rooms to the right"
(Tr. 82-83) .
The inspector confirmed that the Campbell's Creek mine has
no history of dangerous accumulations of methane and that he did
not issue the citation out of concern that dangerous levels of
methane would be encountered during mining. With regard to the
possibility of cutting into dead-end entries, the inspector
stated "I don't know how the old mine lay and we still don't
know for sure" (Tr. 89). He agreed that once the breakthrough
occurred, the air from the Campbell mine was going ou·t the old
mine (Tr. 90).
The inspector testified about possible water hazards in the
old mine, and confirmed that he found no dangerous accumulations
of water (Tr. 91) . He stated that he was not sure of the mine
elevations , and confirmed that he saw water coming out of the
mouths of the abandoned mine. He believed that it was possible
that dangerous water lev els would be encountered by mining into
the old mine because the respondent did not know the actual
extent of the mine . He stated that he could not examine the mine
in any detail, but based on his past experience, he believed that

735

water can accumulate in a mine that is not being maintained
(Tr. 94). He confirmed that he did not know what ~he conditions
were in the abandoned mine other than what he could see through
the breakthrough (Tr. 93-94, 96).
The inspector stated that he based his "S&S" finding "on the
probability that they could cut in this mine at another location
away from this original breakthrough and then possibly encounter
accumulations of water or low oxygen or whatever" {Tr. 97). He
further stated that he based his finding "on what was possible",
and "not this particular fifty or sixty or eighty here that I
could see" (Tr . 97) . He confirmed that he did not include the
Number 2, 3, and 4 rooms off the Number 5 entry as part of the
affected areas described in his citation for the following
reasons (Tr. 99) :
THE WITN.ESS: Because when I obtained the mine map and
the calculations on the mine map made by the state
inspector and myself, it was determined that those
rooms -- And this is a probable two-hundred-foot limit
-- it was determined by Mr . Gillian and myself that
those Number two, three and four rooms were not within
the two-hundred-foot limit and were very unlikely to
cut into that mine.
We didn't know the extent of this . We don't know the
extent -- I can't say that two, three and four entries
were within two hundred feet of that old mine . But I
could say with a little calculation on the mine map and
things that the crosscut between number four and number
five entry and number one room was probably within two
hundred feet of that old mine.
The inspector confirmed that when he was at the breakthrough
area on July 14, a curtain may have been installed at that
location, but he was not sure (Tr . 101). He confirmed that when
he took the air samples shown in Exhibit R-1, the Big Bottom Mine
had been incorporated as part of the Campbell's Creek Mine
(Tr . 102). He explained where he took one of the samples at the
surface of the Big Bottom Mine. He confirmed that the citation
was terminated without the drilling of any test holes, and that
after the second breakthrough, he still did not require the
drilling of any test holes (Tr. 104).
In response to further questions, the inspector stated that
when the August 17, 1992 , accidental breakthrough occurred, he
did not believe that the 200 foot barrier lines shown on map
Exhibit S-2, were shown on that map, and no citation was issued
at that time because based on the map, the breakthrough was not

736

within 200 feet of the abandoned mine, and it was an accident
because the respondent had no knowledge of the old mine area and
mining had ceased in that area (Tr. 107).
With regard to the highlighted 200 foot line shown on
Exhibit S-3, the inspector explained that he drew it at an angle
toward the top of the map rather than to the left or right in
another direction because "to the right is where they were mining
or wanting to mine on this panel, starting these rooms off the
Number five entry. So we drew the line to the right and our twohundred-foot line to the right so that they could come outby
there and continue mining. They were wanting to continue mining"
{Tr. 108). He stated further that "we were calculating on this
map to determine whether they could go ahead and mine, so that
they could be within two hundred feet -- or would be two hundred
feet away from that old mine, so they could go ahead and continue
production that day" (Tr. 109).
The inspector stated that the breakthrough entry was "driven
straight ahead where they cut through", and that the entry of the
old mine "was going to the right, as near as I remember". When
asked if it wa~ on an angle to the right, he replied "I don't
know how radical, but it was going to the right, according to
this, not as much as I thought, well, it's still a pretty good
angle" (Tr. 109).
MSHA Special Investigator Charlie M. Meadows testified that
he conducted a combined investigation of the two individual
respondents, beginning in August, 1992, and ending on December 2,
1992. He stated that he interviewed nine individuals, including
Keith Stephens, and the two respondents in these proceedings
(Tr. 116-119). He stated that after speaking "with mine
management and associates of management" it was determined that
after cutting through into the old mine, which was not a
violation, "they elected to go ahead and mine in a close
proximity of the old mine that they cut into, not knowing what
was there at that point in time" (Tr. 120).
With respect to respondents Abraham and Garrett, Mr. Meadows
stated that based on the "testimony" he received, which was
"pretty close", "each one of them stated that they cut into the
old mine" (Tr. 120). Mr. Meadows sated that Mr. Abraham and
Mr. Garrett had a telephone conversation and "they elected to
go ahead and mine the breakthrough and turn the rooms". When the
second shift came on, shift foreman Stephens was instructed by
Mr. Garrett "to go ahead and mine in that area" (Tr. 121).
Mr. Meadows stated that Mr. Stephens was also "Charged with
a civil penalty". However, the petitioner's counsel confirmed
that this was not the case, and that no civil penalty proceeding
was filed against Mr. Stephens (Tr. 122).

737

Mr. Meadows stated that Mr. Garrett told him that after the
initial breakthrough was made he called Mr. Abraham, who was not
aware of the old mine, and Mr . Abraham told him to mine through
the crosscut and to start mining to the right off the number five
room (Tr. 122).

Mr. Meadows stated that he spoke with Mr. Abraham and was
informed that when Mr . Garrett called him Mr. Abraham checked
the available mine map at the mine off ice and the old mine was
not shown . Mr . Abraham then called the lessee of the coal seam
and an old map was obtained from an engineering company and it
was plotted onto the mine map. Mr. Meadows stated that
Mr. Abraham explained to him that "he didn't think he was in
violation of the law when they started to the right because he
wasn't going toward the old mine", and Mr. Garrett stated that he
was following Mr . Abraham's instructions (Tr. 123).
Mr. Meadows explained further that he was told by
Mr . Garrett that after he informed Mr. Abraham that "he worked
the crosscut between number four and five", Mr . Abraham told him
to "pull the equipment back and start the section to the right" .
Mr. Meadows also believed that Mr . Garrett told Mr. Abraham that
air was going into the old mine , that there was no water at the
area that was cut through , and that Mr. Garrett believed he could
turn the crosscut between four and five because the entries was
up ahead of where the crosscut would be (Tr . 125). Mr . Meadows
stated that as far as he knew , Mr . Garrett and Mr. Abraham did
not discuss any test drilling (Tr . 126).

Mr. Meadows stated that Mr. Garrett told him that "he knew
he should have been drilling test holes in that area" but that he
didn't have a drill to use (Tr. 126-127). Mr. Meadows stated
that he prepared a separate memorandum (Exhibit 5-a) concerning
Mr . Garrett's Admission that he knew that mining without test
drilling was a violation, but Mr. Garrett did not want this
statement to be in his signed statement (Exhibit 5; Tr . 127-128).
Mr. Meadows stated further that he prepared a memorandum of his
interview with Mr. Abraham from his notes recording what
Mr. Abraham told him (Exhibit S-6). Mr. Meadows also identified
a statement taken from second shift foreman Keith M. Stevens
(Exhibit S-7).
On cross-examination, Mr. Meadows explained what occurred
and what was said when he conducted his interviews with
Mr. Garrett and Mr. Abraham (Tr. 154-173). In response to
certain bench questions, Mr . Meadows stated that Mr . Abraham
never admitted that he knew that test holes needed to be drilled.
Mr. Meadows confirmed that Mr . Abraham was not aware of the
existence of the old mine before the initial breakthrough was
made , and that he recommended that Mr. Abraham be charged
pursuant to section llO(c) of the Act because he knew about the
old mine after the breakthrough, directed that mining continue in
738

that area, and admitted that he instructed Mr. Garrett to
continue mining (Tr . 173-174) . He further explained his reasons
for recommending a section liO(c) proceeding against Mr. Garrett
(Tr. 175-176) .
Keith M. Stephens, employed at the mine as an evening shift
section foreman, testified that he was working on the second
shift in July, 1992 , and that there were ten miners on his crew.
He confirmed that he worked on July 13 and 14, 1992, and changed
shifts with first shift foreman Richard Garrett. He stated that
on July 13, Mr. Garrett told him that he had cut into the old
mine at the number three entry but did not encounter any gas or
water (Tr . 184) . Mr. Stephens stated that he asked Mr. Garrett
about test driling, and Mr. Garrett replied "no, we're going to
back up and go to the right", and instructed him "to finish the
breakthrough between four and five, back the miner back and mine
on the rooms on the right . He already had them marked off with
red paint" (Tr. 184) •
Referring to map Exhibit s-2, Mr. Stephens explained where
he continued mining after his discussion with Mr. Garrett. He
stated that he asked Mr. Garrett about test drilling because "I
didn't know if we were going straight ahead or what we was going
to do" (Tr. 188) .
Mr. Stephens identified his prior signed statement given to
special investigator Meadows (Exhibit S-7), and he stated that he
did not tell Mr. Meadows that "I felt we should test drill the
crosscut" , and that he does not use the word "basically"
(Tr. 189-192) . He further explained what Mr . Garrett told him
as follows at (Tr. 191):
THE WITNESS: The way he told me was after I asked him ,
I said, "What about test drilling?" He said, "Finish
the break, back up and start the rooms to the right."
THE WITNESS: Yes , Sir, I asked him , "What about test
drilling?" But I didn't know -- At that time , I didn't
know if we were going on or what we was going to do.
JUDGE KOUTRAS: And he just said, "Turn to the right
and continue on . "
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: Do you remember h i m specifically
telling you, "Forget test drilling"?
THE WITNESS: He .said, "No, we ' re not going to drill.
We're going to pull back to the right . "

739

Mr. Stephens further explained the testimony that he gave
during his deposition of October 12, 1993, (Exhibit S-10:
Tr. 195-197). He agreed that he testified that during his
discussion with Mr. Garrett he told him that "he feltw test
holes should be drilled, and he did so because "it's the law"
(Tr. 198) .
Mr. Stephens confirmed that on July 13, 1992, the respondent
did not have a drill for drilling test holes, and that he at no
time entered the abandoned mi ne because the top was not supported
(Tr. 201). He stated that at the start of his shift he looked
into the number three entry where he cut the crosscut between
four and five and that he took an air reading and tightened the
curtain to prevent too much air from going into the old mine.
Although two or three feet of roof had fallen at the breakthrough
area, the roof was "smooth looking" (Tr. 202) .
on cross-exami nation, Mr. Stephens stated that he was able
to see approximately 100 to 150 feet into the old mine and
observed no water. From his visual observation, it appeared to
him that the direction of the old mine was "at a slight angle to
the right" (Tr . 203 ). He confirmed that he made methane tests
and found none present, and stated that he would not have
continued mining the crosscut or rooms if he believed it was not
safe to do so, and that "I just went ahead and knocked it
through" (Tr. 204). He explained that he did not hesitate to
mine the crosscut between the four and five entries because "they
were past where the breakthrough was, and the angle of the entry
of the old mine that had breakthrough" (Tr . 205). He "guessed"
that the crosscut was mined approximately 25 to 30 feet back from
the face of four and five, and confirmed that he did not mine the
number one room (Tr . 205 ) .
Mr . Stephens confirmed that Mr. Meadows came to his home to
interview him and take his statement and he explained what
transpired. He also explained what occurred when there was a
second breakthrough in August, 1992, and confirmed that the mine
was never placed under a drill plan (Tr . 206-210).
Respondent's Testimony and Evidence
Richard Garrett testified that he has been employed by Talon
Resources, Inc., as a mine foreman for 17 years, and that he had
14 years of mining experience prior to thi s job. He confirmed
that July 13, 1992, was his first day of official duty at the
Number 2 mine, and that he had served at another mine as foreman
on different shifts (Tr. 219).
Mr. Garrett described the prevailing mine conditions at the
number three entry breakthrough area on July 13, and the
conditions immediately prior to that event, and he stated that
everything was normal and there were no indications that they

740

were about to cut through into an old mine. He confirmed that he
was with the miner operator when he cut into the old mine, and he
indicated that the coal seam was "level to the eye" but sloped
toward the working face of the area where they were working
(Tr. 220-223) .
Mr. Garrett stated that the miner made a 20-foot cut up the
right side of the number three entry and when it cut the left.
aide the rib fell out leaving a 3 foot-by-5 foot hole at the top
of the coal seam, "and with all of our air gushing in it we knew
immediately we had cut into an old mine" (Tr. 223). The
equipment w~s deenergized and the hole into the old mine was cut
larger to approximately 14 feet wide and to the same 8 to 10 foot
height that was being mined at that time. The area was cleaned
up and roof bolted, and he made air and gas tests . He detected
no methane or water and measured 33,000 cubic feet of air going
through the breakthrough. He looked through the opening with his
light and could see approximately 100 to 150 feet and observed no
dangerous accumulations of water (Tr. 226-227). He then
proceeded to the surface and telephoned Mr. Abraham and explained
to him as follows (Tr. 227-228):
Q.

What ·specifically did you tell him?

A.

I told him we had cut into an old mine and we
had no water, no methane. And there was so
much air going into it, you didn't have to
worry about taking an air sample .

And our

conversation went from where can we mine and
stay mining coal? And I told him about the
crosscut that I could put through.
And I was as much responsible for going ahead
and mining as Mr. Abraham was, because I felt
it was safe. I told him I could put the
breakthrough through and set up on a panel of
rooms outby in number five entry, and that is
what we did.
Mr. Garrett stated that after speaking with Mr. Abraham, he
returned underground and that either he or Mr. Stephens continued
mining the Number 1 room, and it was cleaned, rock dusted, and
ventilated by the next day when the inspectors were there.
Mr. Garrett stated that before any mining continued he went into
the old mine for approximately 200 feet, or to what would be the
first crosscut, and he marked the location with an "X" .on map
Exhibit s-2. He stated that he went into the mine to "see what I
had cut into and what lay around me" (Tr. 229). He stated that
be encountered no water, and from his experience "it looked like
the mine had been mined in front of me, the direction I cut into

741

it" (Tr. 230) . He explained that the old mine "ran basically in
the same direction as the number three entry" that he had cut
into, rather than off a small angle to the right (Tr. 230).
Mr. Garrett stated that when he changed shifts with
Mr. Stephens he explained the breakthrough, the conditions that
existed, and what he planned to do next, and that Mr. Stephens
did not object. Mr. Garrett could not recall any mention of
drilling (Tr. 232). When the inspectors arrived the next day,
July 14, the number one room and breakthrough areas had been
cleaned up and he voluntarily told the inspectors about what had
occurred. He did not believe that the inspectors would have
known when the mining took place if he had not told them. He
confirmed that when he spoke to Mr. Abraham on July 13, he
(Abraham) told him that he was going to notify MSHA and/or the
state inspectors about the breakthrough (Tr. 233). Mr. Garrett
confirmed that MSHA never required any test drilling while he has
been mining at the Campbell Creek mine (Tr. 236).
Mr. Garrett confirmed that he was interviewed by MSHA
special investigator Meadows and signed a statement, and he
explained as follows (Tr. 23 7 -239 ) :
Q.

Did you ever tell Mr. Meadows during that
conversation that you knew mining coal
without test drilling was a violation of the
law?

A.

I never told Mr. Meadows in no words
to that. I'm quite sure I told Mr . Meadows,
Mr . Inghram and plenty of people that I
understand the law about test drilling, when
I should and when I shoul dn't. But, no , I
made so such statement to Mr . Meadows as
that.

Q.

Did you tell Mr. Meadows that you knew you
should have been test drilling when you were
mining on July 13, but you didn't test drill?

A.

No, sir.

JUDGE KOUTRAS:

What is your understanding of the law.

THE WITNESS: That if I am approaching an old works or
abandoned mine that can't be preshifted or checked,
that I'm supposed to test drill.
JUDGE KOUTRAS : In this case, when they cut through,
that was an old abandoned mine, was it not?
THE WITNESS:

Yes, sir.

742

JUDGE KOUTRAS:
THE WITNESS:

It couldn't be checked?
I checked part of it after that.

JUDGE KOUTRAS: By eyeballing . it. Before you turned
right and started drilling, did you check
THE WITNESS: Before I started mining?
before I started mining, Yes, sir.

I checked it

JUDGE KOUTRAS: Did it ever cross your mind that maybe
you should have drilled some bore holes before turning
right and continuing mining?
THE WITNESS: I felt with what I seen in the old mine
and with the eye level of our mine and the abandoned
mine I cut into, with the air that I pushed into it
when I cut into it, if I cut into it again, there would
be no hazard, because I felt there couldn't be no
accumulation of water. And if did cut in where there
was gas, I would immediately, with the air I had, I
would flush it. I felt that I didn't have no danger.
On cross-examination, Mr. Garrett testified further about
his prior statement to Mr. Meadows and his breakthrough
conversation with Mr. Stephens (Tr. 240-244). He could not
recall mentioning test drilling, but stated that "maybe we did
tell him we weren't going to test drill, because we weren't", and
that "we all knew we didn't have a drill" (Tr. 242-243). He
confirmed that when he went into the old mine another miner went
with him "on his own" (Tr. 246).
Mr. Garrett admitted that he told Mr. Meadows that he did
not go into the old mine because the roof was unsupported, and
because he had been threatened with a state personal violation,
did not know if he could legally enter the old mine, did not want
to bring on any more violations, and wanted to protect the men on
his section (Tr. 248, 251).
Mr. Garrett confirmed that in his deposition he stated that
he had walked approximately 150 to 200 feet into the old mine.
He estimated that the distance from the crosscut between the
number four and five entry to the number three entry breakthrough
into the old mine was less than 200 feet (Tr. 253-254). He
confirmed that he had never experienced a breakthrough prior to
July 13, 1992, and stated as follows at (Tr. 254-255):
Q.

So having no experience in this matter, how
could you determine what made it safe to
continue mining?

A.

If I couldn't detect any methane, if I

743

couldn't see any water and if I had thirty
thousand feet of air going through it and the
mine was eye level, what else could I look
for?
Q.

So, are you saying that you were relying on
your experience of seventeen years, I think
you said, at Talon, and however many, thirty
years, as a coal miner?

A.

Yes, Ma'am.

JUDGE KOUTRAS: Mr . Garrett, let me ask you this: How
can you be reasonably assured that -- Even through you
made a determination that the conditions at the
breakthrough area were not hazardous, how could you
predict what the conditions would be in some other area
if you cut through?
THE WITNESS: I couldn't, sir, other than that the mine
was level. I could presumably predict that there was
no hazardous water. There might be some.
Mr. Garrett stated that if he knew he was mining in the
direction of an old mine he would test drill, and that he had no
assurance that he might not accidently cut into it again, and
while he didn't know his exact position he had a presumably good
idea from the rooms he was in that he was going away from the old
mine. He arrived at these conclusions after examining the old
mine and before continuing mining (Tr. 257).
In response to further questions, Mr. Garrett confirmed that
he did not tell Inspector Inghram that he had gone into the old
mine because he had a state inspector with him who had threatened
to cite him with a personal violation and he was afraid to say
anything. He did tell Mr. Inghram that he thought it was safe to
mine in the direction that mining was progressing in the rooms,
but was afraid to tell him that he had determined that the old
mine was in the opposite direction (Tr . 262) . He confirmed that
he was in fact cited by the state and fined $50 for mining at the
breakthrough without test drilling (Exhibit R-8; Tr. 264) .
Richard H. Abraham, President, Talon Resources, Inc.,
testified that he has worked in the mining industry since 1968,
and is a certified miner, mine foreman , and electrician, and is
certified to take respirable dust samples (Tr. 267) . He stated
his understanding of the intent and purpose of section 75.1701,
as follows at (Tr. 268):
THE WITNESS: Okay. It is my general understanding of
the law that the purpose of 75.1701 is to ascertain
dangerous conditions of gases or water prior to the

744

intentional breakthrough into an abandoned area of that
mine, abandoned area of another mine or an area of that
mine inaccessible .
And it does talk about three different cases; one which
would be the same mine, which would be by certified
engineers, then could mine within fifty feet with no
test drilling . Or if it's the same mine that wasn't
certified by engineers, it would be two hundred feet.
or if it's a different mine and , I assume, different
I . D. Number which would be the case of big bottom,
again, it would be two hundred feet .
Mr. Abraham also believed the the word "approaches" found in
the statutory language of section 75.1701, is significant because
if mining is being done in a direction opposite from the old
mine, this would not be "approaching" the old mine (Tr. 269).
With regard to mining "parallel" to the old mine, Mr . Abraham
stated that at another mine where parallel mining was within
200 feet of an abandoned mine, he and MSHA agreed to a plan
where drilling was not required (Tr . 269-270) . He acknowledged a
distinction between a known and unknown hazardous abandoned mine
(Tr. 271). He also alluded to another mine where a planned
drilling procedure is in effect {Tr. 273-274).
Mr. Abraham stated that it is his understanding that there
is no legal requirement for test drilling breakthroughs between
entry ways, and that the sole purpose of drilling is to determine
the atmosphere and presence of dangerous accumulations of water
in an abandoned mine (Tr. 275). He confirmed that there was no
drilling equipment at the mine at the time the breakthrough
occurred, and that prior to speaking with Mr. Garrett on July 13,
1992, he was not aware of the existence of the old Big Bottom
mine (Tr. 276) •
Mr . Abraham confirmed that Mr. Garrett called him and
informed him that he had accidentally penetrated an old mine but
had no inundation of water, and that the air was leaving the
number three entry of the Campbell Creek mine and going into the
old mine. Mr. Abraham stated that he engaged the "speaker phone"
and went to the engineering off ice where Ken Abraham, the mine
engineer and safety director is located, to look at a mine map
(Exhibit R-2), and he explained the discussions that took place,
including the mark-up of the map (Tr. 280-284).
Mr. Abraham stated that based on the spad mark location of
the breakthrough given to him by Mr. Garrett he knew where the
abandoned mine had been penetrated. After further discussion
about the conditions encountered by Mr. Garrett, and his belief
that he had penetrated the old mine "head on", Mr . Abraham
decided that it was safe to continue mining in a direction that
745

he believed was away from the old mine, and he instructed
Mr. Garrett "to turn it on the side, ninety degrees, which would
be that way, and mark up five rooms" (Tr. 284-287). He also
allowed Mr. Garrett to cut the breakthrough between the No. 4
and 5 entries so as not to leave two dead entries in . the mine,
and he did so after instructing Mr. Garrett to take additional
safety precautions.
Mr. Abraham stated that based on the location of the initial
penetration of the old mine, the distance between that point and
the number one room where mining continued was in fact 198 feet
(Tr. 298). Mr. Abraham explained how he calculated this
distance, and he stated that if five rooms had been marked up, as
he instructed , rather than six, mining in those rooms, except for
the crosscut breakthrough which he authorizedp would not have
been within 200 feet of the old mine (Tr . 290-291).
Mr. Abraham stated that after his discussion with
Mr. Garrett on July 13, he instructed him to cut the breakthrough
and start the rooms. He then consulted with his engineer, and
they determined that the breakthrough was not a reportable
accident. However, he reported it to the state agency, and as a
matter of courtesy, also reported it to MSHA. No one came to the
mine that day, and he assumed that Inspector Inghram was there
the next day in response to his call, but learned later that he
was there for a scheduled inspection (Tr. 297).
Mr. Abraham explained where mining had continued after the
breakthrough, as follows at (Tr. 301-302):
Q.

When you went back in and mined that day,
what area of the mine were you working in?

Ao

We worked room number two through six.

Q.

And still proceeding in the same direction
you ' ve testified to, approximately a ninety
degree angle from the breakthrough?

A.

We were approximately mining in a direction
ninety degrees from the direction that we
thought big bottom was in. And the number
two, three, four, five and six are parallel
to the number one entry which is referenced
in the citation, yes.

Q.

Did you start mining again once you had the
map of what everyone thought the big bottom
mine looked like at that time?

A.

I think what happened is while the inspectors
were there on the surface, Tom Law appeared

746

with the hard copy of this Big Bottom Coal
Company . And upon examination of that or
upon this line that Mr. Ingram and
Mr. Gillian elected to make the boundaries
of Big Bottom Coal Company, it was basically
decided that the nwnber one entry was the
only one within the two hundred feet .
And to avoid all argument, if I would go to
two through six, I could go mine there with
or without a map. And Mr. Inghram seemed to
be content to allow us to do that as long as
we only stayed in two through six and we sent
this hard copy to the engineers and have it
put on to here and have it back the next
morning as a certified map.
Q.

Were your required to test drill two through
six?

A.

We

were not .

Mr. Abraham confirmed that he reported the second August
breakthrough, but MSHA did not come to the mine to inspect it and
he was not put on any test drilling program (Tr . 303). He stated
that he advised MSHA that the map that he had was obviously
inaccurate, that he did not want to drill in that area because it
was non-productive, and that he would only drill if it were
absolutely necessary for him to mine in that direction, and that
he was abandoning the area (Tr. 303).
Mr. Abraham stated that he did not believe that the law
required any test drilling before mining the crosscut between the
number 4 and 5 entries. Those entries had not cut into the old
mine, and that by instructing Mr . Garrett to back up 30 feet to
connect the two entries together, he believed it was very
unlikely that he would again be cutting into the old mine while
connecting the two entries (Tr. 307).
Mr. Abraham stated that he was not "approaching" the old
mine when the crosscut or nwnber one room were being mined . He
confirmed that he knew that the crosscut would be within
200 feet of the old mine, but that the number one room would not.
However, he did not believe that he was required to test drill
while mining a crosscut because that is not his interpretation of
•action 75.1701, and he did not believe that this was MSHA's
interpretation (Tr. 308). He stated that the mine drilling plans
do not include the drilling of breakthroughs, and that drilling
is only done when there is adjacent mining advancing toward an
abandoned mine (Tr. 309). He further explained as follows at
(Tr. 309-310);

74 7

THE WITNESS: We did not drill the breakthroughs. We
only drilled those entries going toward that mine. We
didn't drill anything going back the other way.
JUDGE KOUTRAS: You mean to tell me. when you got within
two hundred feet, you didn't drill holes?
THE WITNESS: We drilled them in the faces going toward
the old works, but not in crosscuts that were ninety
degrees. They were not going in the direction of -JUDGE KOUTRAS:
feet .

Even though they're within two hundred

THE WITNESS: Even though they're within two hundred
feet. That was the fifteen-minute dissertation I tried
to give you in the beginning. There has been more than
one application of this where to say that you drill in
all areas within two hundred feet is not true. It is
not done.
Mr. Abraham explained the mine elevations and he believed
that it was impossible to encounter an accumulation of water had
they cut through again between the number four and five entries
(Tr . 3 11-3 13 ) •
On cross-examination, Mr. Abraham clarified his earlier
testimony and stated that he determined the 198 feet distance
between the abandoned mine and the crosscut between the number 4
and 5 entries after his conversation with Mr. Garrett on July 13,
and that it was his belief at that time that the room would be
outside the 200 foot area (Tr. 314-316).
Mr. Abraham reiterated his belief that it was not a
violation to cut through a crosscut "unless you are approaching
the old works" (Tr. 319) . He also believed that the accidental
breakthrough told him everything he needed to know in order to
make a complete assessment with respect to the continuation of
mining (Tr. 320-321). He further confirmed that all mining that
took place after the accidental breakthrough, and that was within
200 feet of the abandoned mine, was done at ninety degrees away
from that mine (Tr. 330). He reiterated his belief that even if
the ninety degree direction of mining is within 200 feet of an
adjacent mine he would still not be in violation because the
mining is not "approaching" the abandoned mine (Tr. 331).
Findings and Conclusions
Preliminary Matters
During a brief off-the-record trial conference with the
parties prior to the taking of testimony in these proceedings, I

748

discussed with the parties certain proposed stipulations drafted
by the petitioner's counsel (Tr. 7). However, the stipulations
were inadvertently omitted from the record. In any event, based
on the pleadings filed by the parties, including the ·r espondent's
discovery responses and posthearing proposed findings and
conclusions, I conclude and find that the following facts and
conclusions are not in dispute:
1. The presiding judge and the Commission have jurisdiction
to hear and decide these cases.
2. The respondent Talon Resources Inc., is the owner and
operator of the Campbell's Creek No. 2 Mine, and the operations
of that mine are subject to the jurisdiction of the Mine Act.
3. Respondents Richard Abraham and Richard Garrett are
agents of Talon Resources Incorporated within the meaning of
Section llO(c) of the Mine Act.
4. MSHA Inspector Leo Inghram, Jr. was acting in his
official capacity as an authorized representative of the
Secretary of Labor on July 14, 1992 when he issued the
section 104(d) C~tation No. 2729003.

s.

A true copy of citation No. 2729003 was served on Talon
Resources Incorporated or its agent and the two individual
Respondents, as required by the Mine Act.
6. citation No. 2729003, marked Secretary's Exhibit No. 1,
is authentic and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing
the accuracy of any statements asserted therein.
7. Petitioner's Proposed Assessment Data Sheet, Exhibit
No. a, accurately sets forth (a) the number of assessed nonsingle penalty violations charged to the Campbell's Creek No. 2
mine for the period from January 1990 through September 1992,
(b) the number of inspection days per month during this time
period, and (c) the actual annual tonnage for the Campbell's
creek No. 2 mine in 1991.
8. Petitioner's Assessed Violations History Report, Exhibit
No. 9, may be used in determining an appropriate civil penalty
assessment for the alleged violations against Talon Resources
Incorporated, Richard Abraham, and Richard Garrett.
Fact of Violation - Docket No. WEVA 93-16
Talon is charged with a violation of mandatory safety
standard 30 c.F.R. § 75.1701, for mining near an underground
entry that had accidently holed through into an unknown abandoned
mine. The relevant language of statutory section 75.1701, which

749

was in effect at the time the citation was issued on July 14,
1992, states as follows :
Whenever any working place approaches within 50 feet of
abandoned areas in the mine as show by surveys .ade and
certified by a registered engineer or surveyor , or
within 200 feet of any other abandoned areas of the
•ine which cannot be inspected and which may contain
dangerous accumulations of water or gas, or within
200 feet of any workings of an adjacent mine, a
borehole or boreholes shall be drilled to a distance of
at least 20 feet in advance of the working face of such
working place •.. .
Section 75.1701, was redesignated as section 75.388,
effective August 16, 1992, 57 F.R , 20914, and it states as
follows:
(a)

Boreholes shall be drilled in each advancing working
place when the working place approaches
(1)

To within 50 feet or any area located in the
mine as shown by surveys that are certified
by a registered engineer or registered
surveyor unless the area has been preshift
examined;

(2)

To within 200 feet of any area located in the
mine not shown by surveys that are certified
by a registered engineer or registered
surveyor unless the area has been preshift
examined ; or

(3)

To within 200 feet of any mine workings of an
adjacent mine located in the same coalbed
unless the mine workings have been preshift
examined .

Although the inspector contended that no one knew the
extent of the abandoned mine, or whether the mining that took
place after the breakthrough on July 13, 1992, was again heading
toward or away from the abandoned mi ne (Tr. 51), the petitioner
arqued in support of its case that Inspector Ingram, with State
Inspector Gillian, determined from existing maps of the No. 2
•ine that both of the cited locations where mining took place
after the initial breakthrough were within 200 feet of the
opening hole of the No. 3 entry where the breakthrough into·
the abandoned mine was made. The petitioner points out that
inspector Inghram estimated that the crosscut that was mined
was 80 feet from the opening, and that the first room was
175 feet from the opening, and that since Talon has maintained
that no map of the adjacent mine was available at the time

750

these areas were mined, the only point from which to measure
the 200 feet distances was the one and only No. 3 entry opening
into the abandoned mine. The petitioner further relies on the
testimony of respondents Garrett and Abraham admitt~ng that
both of the mined locations after the breakthrough were within
200 feet of that area . Since no test drilling was done prior ·
to the mining of these areas, the petitioner concludes that a
v iolation of section 75.1701, has been established .
Talon maintains that section 75.1701, applies only when a
working place "approaches" to within 200 feet of any workings
of an adjacent mine. Talon argues that in order to establish a
violation, the petitioner must prove by a preponderance of the
evidence that Talon was "approaching" or mining in the direction
of the abandoned Big Bottom mine when it mined the crosscut
between entries 4 and 5, and the No. 1 Room off of the No. 5
entry. In support of its argument, Talon states that given
what is now known of the parameters of the Big Bottom Mine from
maps it obtained, mining did not approach the Big Bottom Mine
on July 13, 1992 , after the breakthrough, and the testimony of
respondents Abraham and Garrett demonstrates that they had a
reasonable belief that the mining in the crosscut and the No. 1
Room would not approach the Big Bottom Mine since that mine was
hit "head on," 'according to Garrett, when it was cut through in
the Number 3 entry, and based upon Abraham's assessment of where
the old mine was likely to lay.
Talon further argues that by retreating 20 to 30 feet from
the faces of the No. 4 and 5 entries before mining the crosscut,
the conditions on both sides of the crosscut were known, and that
under these circumstances, section 75.1701, is inapplicable to
the mining of the cross-cut because that regulation was
promulgated to guard against mining into areas that may contain
dangerous accumulations of water a nd gas.
Talon argues further that the petitioner failed to establish
a violation of section 75 . 1701, with respect to the mining of the
No. 1 Room in that, at the time the citation was written , the
inspector had no evi dence that said mining was in fact within
200 feet of the Big Bottom Mine. Talon believes that it is clear
from the inspector's testimony that the assertion that the No. 1
Room was within 175 feet of the Big Bottom Mine was based upon
his calculation of the room's distance from an imaginary line
that he and the state inspector estimated would represent the
extent and angle of the Big Bottom Mine , and that the inspector
admitted that the imaginary line does not represent the actual
extent and angle of the Big Bottom Mine .
Citing South East Coal Co .. Inc., 3 FMSHRC 1766 (July 1981),
Talon suggests that since the Big Bottom Mine was ventilated by
air rushing from the Campbell's Creek Mine, and is now an
approved part of the ventilation plan for the Campbell's Creek

751

Mine, and since Mr. Garrett examined the Big Bottom Mine and was
satisfied that it presented no hazardous accumulations of water
or gas, Talon could mine to within 50 feet of the Big Bottom Mine
without drilling test holes. However, since the mining in both
the crosscut and the No. Room were more than 50 feet from the
Big Bottom Mine, Talon concludes .that no violation of
section 75.1701, has been proved in this case.
In response to Talon's arguments concerning the
interpretation of the term "approaches", the petitioner states
that it is an "absurd" position that is not encompassed in the
plain meaning of the statutory regulation, and has no basis in
regulatory or legislative history, or applicable case law.
Petitioner states that the legislative history of the
1969 Coal Act and the 1977 Mine act do not disclose any
commentary on the purpose or application of section 75.1701, in
general or specifically with respect to the word "approaches."
The petitioner states further that in three cases in which
Commission Judges have addressed section 75.1701, the term
"approaches" did not have a meaning or an application denoting
an angle or direction of mining. TAC & C Energy Inc., 8 FMSHRC
1452 {September ~986); South East Coal Co., 3 FMSHRC 1766 (July
1981); Johnson Bros. Coal co .. Inc., 2 FMSHRC 094, 916 (April
1980) .
Citing Webster's Ninth Collegiate Dictionary definition of
"approaches" as "to draw closer to" or "to come very near to",
the petitioner concludes that neither of these refer to a
direction or angle. The petitioner further asserts that
section 75.388(a), rewrites and clarifies section 75.1701, and
confirms that "approaches" has no directional or anqular meaning
or application in section 75.1701. Citing the section 75.388(a)
language that "[b]oreholes shall be drilled in each advancing
working place when the working place approaches -- (1) To within
50 feet ••. ; (2) To within 200 feet •. . ; or (3) To within 200 feet
of any mine workings of an adjacent mine .••. ", the petitioner
concludes that by separating the language after "approaches"
and adding the word "to" to "within," the plain meaning of
"approaches" is emphasized.
The petitioner takes the position that any angle or
direction of minin~ is irrelevant because "it is the nearing
of mining to the stated distance before the adjacent mine that
is important." Similarly, petitioner believes that it is
irrelevant whether Talon was mining towards the opening to the
adjacent mine in entry three after it turned ninety degrees to
the right of the opening to cut the crosscut and the room in
question, because this mining occurred within 200 feet of the
opening in entry three. Petitioner finds equally unpersuasive

752

Talon's contention that it was not required to test drill
crosscuts or to drill in all mininq circumstances within 200 feet
of an adjacent mine.
In further support of its position, Talon cites the
petitioner's admission that Webster's Dictionary defines
"approach" as "to draw closer to", and its "non sequitur statement" that "any anqle or direction of mininq is irrelevant
because it is the nearinq of mininq to the stated distance before
the adjacent mine that is important". Talon suqgests that these
admissions ·by the petitioner support its contention that the term
"approaches" does indeed have a directional meaninq. Since the
mininq that occurred on July 13, 1992, after the breakthrouqh
was away from, rather than nearing toward or approachinq the
abandoned Biq Bottom Mine, Talon concludes that no violation of
section 75.1701, occurred.
The requirement found in section 75.1701, for the drillinq
of boreholes applies to (1) workinq places within 50 feet of
abandoned areas in the mine that are shown on a certified mine
survey; (2) workinq places within 200 feet of any other abandoned
areas of the mine, which cannot be inspected; and (3) workinq
places within 200 feet of any workinqs of an adjacent mine. on
the facts of this case, and qiven the statutory lanquage "in the
mine" and "of t ·h e mine", I conclude and find that the first
two borehole requirements apply only to the same Campbell's Creek
No. 2 Mine that was inspected on July 14, 1992, and that in order
to support a violation of either of those requirements, it must
be established that drilling was not done within 50 or 200 feet
of any abandoned areas in that mine. Since there is no evidence
that the two cited locations that were mined after the cutthrough on July 13, 1992, were abandoned areas of the Campbell's
Creek No. 2 Mine, I conclude and find that the first two drillinq
requirements stated in section 75.1701, do not apply in these
proceedings.
With respect to the third requirement for drilling in
working places that are within 200 feet of any workings of an
adjacent mine, it would appear that the abandoned Big Bottom Mine
was adjacent to the Campbell's Creek Mine. The inspector
testified that the initial breakthrough into the abandoned
mine was accidental and did not constitute a violation of
section 75.1701. The inspector described two locations in the
Campbell's Creek mine where mining continued after the initial
breakthrough without drilling test holes. The first location was
a crosscut between the No. 4 and 5 entries, alleqedly within
200 feet of the breakthrough, and the second location was the
No. l Room of the No . 4 panel, allegedly within 175 feet of the
breakthrouqh.

753

Talon does not dispute the fact that the crosscut entries
were within 200 feet of the abandoned Big Bottom Mine. With
regard to the No~ l Room off of No. 5 entry, Talon takes issue
with the accuracy of the inspector's calculations placing that
location within 200 feet of the breakthrough location. However,
Mr. Abraham confirmed that the room was within 200 feet of the
breakthrough and he was quite precise at placing it 198 feet froa
the breakthrough (Tr. 289-291). Mr. Garrett said it was less
than 200 feet (Tr. 253). Under all of these circumstances, I
conclude and find that both of the cited locations were within
200 feet of the adjacent Big Bottom breakthrough entry.
The thrust of the petitioner's case is that Talon continued
mining in the general area near the abandoned Big Bottom mine
after the initial breakthrough on July 13, 1992, without drilling
test holes. The inspector gave three reasons for issuing the
citation citing a violation of section 75.1701, and they are as
follows:
Failure to drill test holes while mining within
200 feet of the abandoned mine (Tr. 15).
Failure to .drill test holes while mining within
200 feet of\ the abandoned mine that could not be
inspec;:ted f o·r accumulations of water and gases
(Tr. 82).
Failure to drill test hole.s to determine the location
of the abandoned mine while continuing to mine within
200 feet of the abandoned mine area (Tr. 51).
Aside from the inspector's explanations as to why he issued
the citation, I believe the pivotal issue is Talon's interpretation of the term "approaches" found in section 75.1701, and the
petitioner's equally vigorous position that a violation has been
established because Talon conducted mining within a 200 foot area
of the breakthrough without drilling test holes, regardless of
whether the working faces were being advanced in the direction of
the abandoned mine breakthrough area or away from that area.
Black's Law Dictionary, Rev. Fourth Ed., 1968, defines
"approach" as "to come nearer in space. Thus, an "approaching" ·
street car is one coming near to , in point of time and place".
"Approaches" is defined as " a way, passage, or avenue by which a
place ••• can be approached".
In a decision issued by me on February 17, 1977, pursuant to
the 1969 Coal Act, Mining Enforcement and Safety Aciministration
v. Robinson i Pbillips Coal Co., Docket No . HOPE 76.113-P, I
vacated an order that was issued for an alleged violation of
30 C.F.R. § 75.1701, and stated as follows at pg. 16, slip
opinion:

754

I believe that it is clear that the regulation requires
the drillinq of one or more boreholes into the face A.Ii
mining advances towards an abandoned area of the mine
and that the purpose of this requirement is to insure
against accidental holing through into unknown
quantities of qas or impounded water . (Emphasis
added) .
In south East coal company. Inc . , 3 FMSHRC 1766 (July 1981),
former commission Judge Richard Steffey dismissed a proposed
penalty assessment for an alleqed violation of 30 C.F.R.
§ 75.1701, after concludinq that MSHA had failed to prove a
violation. At several places in his decision Judqe Steffy
made references to the drillinq requirements of section 75.1701,
in the context of the direction of mining toward abandoned
mine areas . He stated in relevant part as follows at
3 FMSHRC 1771-1772:
Anyone who reads the first sentence of section 75.1701,
••• will see that the requirement for the drilling of
boreholes becomes increasing necessary, dependinq upon
the amount of information one possess with respec t to
the "abandpned areas" toward which one is advancing .

*

*

*

If one advances toward abandoned areas not shown on
certified maps, he must start drilling boreholes

*

*

*

• • • it was doubtful if the area toward which the rooms
were being driven constituted "abandoned areas" • • •

*

*

*

Since the "abandoned areas" towar d which the respondent
was advancing •••
(Emphasis added)
Section 75.1701, does not unequivocally require test
drilling under all mining circumstances. The first two
requirements cover test drilling within 50 feet of an abandoned
mine area that has been surveyed and certified by a registered
engineer, and within 200 feet of any other abandoned mine which
cannot be inspected and which ~ay contain dangerous accumulations
of water or qas. In both of these instances, I conclude that the
requirements for drilling are intended to prevent accidental

755

penetration into known abandoned mine areas where hazardous
accumulations of water or gases may be present. The 50 foot
"safety zone" obviously takes into consideration the fact that
the abandoned area has been surveyed and its location is known
with reasonable certainty.
In the case of an unsurveyed abandoned mine area that is
known but cannot be inspected, the margin of safety is increased
to 200 feet, and I believe that this is based on the fact that
the abandoned area cannot be inspected, and even though its
general location may be known, without a survey or an inspection,
it would be difficult to establish with any reasonable certainty
whether or not mining is advancing in the direction of the
abandoned area , or whether it is in close proximity to that area.
With respect to any drilling within 200 feet of any workings
of an adjacent mine, section 75.1701 does not mention surveys or
inspections of those areas . If the location of such a mine is
not known because it does not appear on the mine map, or because
it has not been surveyed or inspected, one would not know whether
mining is being conducted within 200 feet of such an area, and
would have no. way of knowing whether or not drilling test holes
is necessary or required. However, once the location of the
adjacent mine is made known, one could argue that the drilling of
test holes would be required under all .circumstances within
200 feet of the adjacent mine, regardless of the directional
track of the mining taking place within this area. However,
given the fact that the intent of section 75.1701, is to prevent
the accidental holing through into adjacent mine workings, and
considering the regulatory term "approaches" in context, and
together with the language requiring the initial drilling of a
test hole to a 20 foot distance in advance of the working face,
and maintaining subsequent drilling to at least 10 feet in
advance of the advancing working face, language that denotes the
direction of mining, I find no logical reason to require the
drilling of test holes as a preventive measure to preclude
accidentally holing into a known adjacent mine area when the
direction of mining is clearly, or with some reasonable
certainty, taking place away from, or in the opposite direction,
of such an area.
The petitioner's contention that the abandoned mine "was
completely unknown to Respondents in every respect" is not well
taken. Although it is true that the mining which continued after
the breakthrough was done without the benefit of a map or the
drilling of test holes, and that Talon was unaware of the
existence of the old mine prior to the breakthrough, the evidence
presented in these proceedings, including Talon's credible
testimony, supports a conclusion that Talon had enough knowledge

756

of the conditions in the old mine, as well as where the mine was
located, to provide it with a reasonable basis for believing that
it was safe to continue mining on a track away from, rather than
in the direction of, the old mine.
Evening shift foreman Keith Stephens, who mined the crosscut
between the No . 4 and 5 entries, testified that he could see 100
to 150 into the old mine after the breakthrough, and he observed
no water and made methane tests which showed no methane present.
He also testified that he did not hesitate to mine the crosscut
because it was past the area of the breakthrough and the angle at
which the breakthrough entry was made, and was approximately
25 to 30 feet back from the No. 4 and 5 faces . He stated that he
would not have mined the crosscut if he did not believe it was
safe to do so.
Respondent and mine foreman Richard ·Garrett, who was present
when the initial breakthrough occurred on July 13, 1992,
testified that he could see into the old mine for approximately
100 to 150 feet, and that he observed no water, detected no
methane, and measured 33,000 cubic feet of air per minute going
through the breakthrough into the old mine. He further testified
that after notifying Mr. Abraham of the breakthrough, and before
continuing mining, he walked into the old mine for a distance of
approximately 200 feet, found no water, and observed that the old
mine lay in the same direction as the breakthrough entry, rather
than at a small angle to the right. Based on his 31 years as
Talon's mine foreman, and his observations of the old mine on
July 13, Mr. Garrett believed that the mining that continued
after the breakthrough was in the direction opposite to and away
from the old mine .
Although Mr . Garrett did not inform Inspector Inghram that
he had gone into the old mine at the time of his inspection on
July 14, 1992, and told special investigator Meadows that the had
not gone into that mine, I find his explanations for not telling
the inspectors to be both reasonable and plausible under the
circumstances. Having viewed Mr . Garrett in the course of the
hearing, he impressed me as a credible individual. I take note
of the fact that the areas that were mined on July l~, had been
cleaned up, ventilated, and bolted when the July 14, inspection
took place, and that the inspectors would not have known when the
mining occurred if Mr. Garrett had not volunteered the information. I also note that Mr. Garrett accepted the responsibility
for the continued mining and he believed that it was safely done.
Respondent Abraham testified that based on the spad mark
where the breakthrough occurred, he knew where the old mine had
been penetrated, and based on the fact that it was penetrated
"head on", and the prevailing conditions as reported to him by
Mr. Garrett, Mr. Abraham believed that it was safe to continue
mining. Inasmuch as the miner machine backed up 30 feet from
757

the point of penetration and turned ninety degrees to the right
to continue mining, Mr. Abraham had reason to believe that
mining was on a track away from the old mine, was · no longer
"approaching" that mine, and that it was unlikely that the old
mine would again be cut into while connecting the two entries
and mining the No. 1 Room. This proved to be true as no further
breakthroughs occurred in those areas.
Inspector Inghram's calculations with respect to the
200 foot area within which he believed mining was prohibited in
any direction without first drilling test holes were made with
the No. 3 entry breakthrough location as his initial point of
reference, and the two mine maps which he marked up during his
testimony use that location as the initial point of reference
(Petitioner's Exhibits 2 and 3).
Although the inspector testified that his estimation of the
location of the old mine on July 14, 1992, as shown by the
highlighted solid line on petitioner's map exhibit 2, was based
on his "observation of the old mine", he confirmed that he did
not enter the old mine. Although he stated that he could see a
short distance into the old mine (Tr. 23), he later testified
that he could not approach the breakthrough area close enough to
look into the old mine and only viewed it from a distance
(Tr. 37). He confirmed that mining continued "off to the right"
and that no further breakthroughs occurred during this time
period (Tr. 44).
The inspector confirmed that his estimation of the location
of the old mine was based on his "best guess" as to the probable
general direction of the old mine, and that his calculation of
the 200 foot area from the breakthrough which is labeled
"probable 200 foot limit" on map exhibit 3, was based on an
"imaginary line" of where he believed the old mine was located.
He confirmed that the cited mining took place to the right of
that location. Having examined the maps marked up by the
inspector, it is clear to me that the cited crosscut and No. 1
room that were mined after the breakthrough were approximately
90 degrees and to the right of, and away from, the old mine area
as described by the inspector. Based on this evidence, I find
that it supports Talon's belief that it was mining away from the
old mine after the breakthrough, and that it was not again
"approaching" that mine.
After careful consideration of the arguments presented by
the parties, I agree with Talon's position concerning the
interpretation and application of section 75.1701. I conclude
and find that the term "approaches" modifies each of the three
regulatory drilling requirements, and that in order to establish
a violation it must be established by a preponderance of the

758

evidence that the mining taking place within the 50 to 200 foot
areas stated in the regulation was in the directi.o n of the
abandoned or adjacent mine areas.
On the facts of this case, I find that immediately prior to
the breakthrough into the old adjacent mine, the mining in the
Campbell's Creek mine was advancing in the direction of the old
aine and that it was clearly approaching that area. However,
after the breakthrough, I find that mining continued in the
opposite direction and away from the old mine, and was clearly
not again approaching that area. Since the purpose of drilling
test holes is to determine the safeness of the area toward which
mining is advancing, I conclude and find the drilling requirement
found in section 75.1701, with respect to the adjacent mine in
question did not apply, and that a violation has not been
established. Under the circumstances, the disputed citation
IS VACATED.
Fact of Violation.

Docket Nos. WEVA 93-393 and WEVA 93-402.

I adopt and incorporate by reference in these two
section 110 (C·) cases my prior findings and conclusions in Docket
No. WEVA 93-16, concerning the mine operator Talon Resources.
In order to establish a violation chargeable to the two
individual respondents, it must first be established that the
mine operator violated the cited mandatory regulation in
question. Since I have concluded that a violation has not been
established, the citations served on the two individual
respondents in these proceedings ARE VACATED.
ORDER
In view of the foregoing findings and conclusions IT IS
ORDERED AS FOLLOWS:
1. Section 104(d) (1) "S&S" Citation No. 3729003, issued
on July 14, 1992, citing an alleged violation of 30 C.F.R.
§ 75.1701, IS VACATED, and the petitioner's proposal for
assessment of civil penalty in Docket No. WEVA 93-16, IS DENIED
AND DISMISSED.
2.
The petitioner's proposed civil penalty assessments
filed against the individual respondents pursuant to section
llO(c) of the Act in Docket Nos. WEVA 93-393 and WEVA 93-402,
based on the vacated section 104(d) (1) "S&S" Citation
No. 3729003, are DENIED and DISMISSED.

~~~~
Administrative Law Judge

759

Distribution:
Heather Bupp-Habuda, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Rm. 516,
A.rlinqton, VA 22203 (Certified Mail)
Dina M. Mohler, Kevin A. Nelson, Esqs., KAY, CASTO, CHANEY,
LOVE ' WISE, P.O. Box 2031, Charleston, WV 25327 (Certified
Mail)
ml

760

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

APR 6 1994
ROBERT W. SHELTON,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 93-573-DM
WE MD 93-04

v.
Sleeper Mine
NEVADA GOLD MINING, INC., 1
Respondent

DECISION
Appearances:

Robert w. Shelton, pro se, for Complaina~t.
Henry Chajet, Esq., and James G. Zissler, Esq.,
J·~ckson & Kelly, Washington, D. c. , for Respondent

Before:

Judge Amchan
Statement of Facts

complainant, Robert Shelton, worked for Respondent, Nevada
Gold Mining Company, as a truck driver at the Sleeper mine from
August, 28, 1988, until December 22, 1992, when he was fired
(Tr. 7). Shortly thereafter, he filed a complaint with the U. s.
Department of Labor alleging that his termination was the result
of retaliation for activity protected by section 105(c) of the
Federal Mine Safety and Health Act. For the reasons stated
herein, I find that Respondent did not violate the Act in
terminating Mr. Shelton.
The events leading to Mr. Shelton's termination began on
November 23, 1992, when general mine foreman, Roy Rose, returned
to the Sleeper mine after six months on a temporary assignment at
another of Respondent's facilities (Tr. 205, 344). Rose was the
supervisor of Mr. Shelton's immediate boss, shift foreman Dennis
Brown (Tr. 34 - 35). Neither Brown nor Shelton had a good
relationship with Rose (Tr. 206, 226, 246, 251 - 254). When. he
learned that Rose would be returning to the Sleeper mine, Shelton
told Brown that he (Shelton) and Brown "were history (Tr. 226)."

1

Although this case was docketed with Respondent's name
listed as Nevada Mining, Inc., the correct name of the company is
Nevada Gold Mining, Inc. (Tr. 4). The caption of the case is,
therefore, amended to reflect this correction.
761

Mr. Shelton also told fellow employee Sean Riley that Rose "would
get him (Shelton)" when he returned (Tr. 285).
Almost immediately upon Mr. Rose's return to the Sleeper
mine, foreman Dennis Brown transferred from his job as head of
complainant's crew to a position at the mine's crusher, where he
did not report to Rose (Tr. 205). · At the beginning of the day
shift on November 2 3, 1992 , Shelton's crew assembled for a lineout meeting, where the y received their work assignments.
Mr . Rose addressed the crew briefly and announced that Mr. Brown
had voluntarily relinquished his position as the crew's foreman
(Tr. 34) •
Rose then looked at Shelton and said in a hostile manner,
"Bob, I see by that smirk on your face that you don't believe me
(Jt. Exh . 1 , Tr . 38, 282 - 284) • 211 Mr. Shelton pointed at Rose
and told him that he was tired of his "retributions" (Tr. 39).
The crew then went to work (Tr . 39).
Mr. Shelton was very upset after this confrontation (Tr. 39 ,
He believed that the incident was a prelude to his
termination by Rose (Tr . 39). Shelton made several careless
mistakes during his workshift on November 23. He turned in front
of another dr i ver and dumped the load in his truck at the wrong
location on two or three different occasions (Tr . 40 , 91).
289) .

On November 23, 1993, the Sleeper mine was in the midst of
an MSHA inspection which commenced for reasons totally unrelated
to Mr. Shelton (Tr . 45). However, on that date Shelton asked
Sean Riley, who was the designated employee representative for
MSHA inspections, if he could speak with the MSHA Inspector ,
James Watson (Tr . 290) .
The next day Shelton met with MSHA Inspector Watson, Riley,
and company safety director Bill Smith (Tr . 45) . Shelton started
off the discussion by telling Watson that "I'm going to pay for
this big time (Tr . 47 )." He then proceeded to tell Watson that
he presented a hazard to himself and others due to his emotional
state and that his condition was due to his treatment by Rose
(Tr. 4 7 , 7 5 - 7 6 ) •
Inspector Watson was unsure as to what to do about ·shelton's
complaint (Tr . 48). At one point Shelton's personnel file was
brought to Watson and, at another, Shelton talked to Watson's
supervisor, Gary Day, on the telephone (Tr . so, 3 3 2 - 333) . At
the conclusion of the meeting Watson asked Shelton if he felt

2It

is unclear whether Mr. Shelton smiled, smirked, or made
any facial expression that led Mr. Rose to make this comment .

762

that he could return to work. Shelton replied that he thought he
could and he worked for the rest of the day without incident
(Tr. 50 - 52).
Watson informed Mr. Shelton that if he wanted to pursue this
matter further with MSHA he would have to file a written
complaint (Tr. 52). Complainant was off work from November 25
through November 27, 1992, for the Thanksgiving holiday. On
November 26, 1992, he wrote a letter to David Mcintosh, who had
become general manager of the Sleeper mine in October, 1992
(Tr. 321, Jt. Exh. 1). Copies of that letter were provided to
MSHA, the Winnemucca, Nevada police department and others
(Jt . Exh. 1 p. 6) .
The letter to Mcintosh recounted Rose's comment to Shelton
on the morning of November 23, 1993. Shelton then observed that:
This type of verbal debasement and degradation has been
directed at me for over four years now. I consider this
conduct discriminatory; and it serves no purpose other than
harassment. I have never been subjected to this kind of
treatment anywhere else in my working life . I feel the only
purpose of this treatment is to force me to resign.
Shelton then proceeded to review his work experience at the
Sleeper mine, focusing on his treatment by Rose. He also
mentioned some problems he experienced with his foreman,
Dennis Brown, and commented that "these problems could have been
caused by pressure put on Dennis by Roy (Jt. EXh . 1, p . 4)."
He complained about not having been considered for a position
with plant security (Jt. Exh. 1, p. 5) Towards the end of his
letter to Mcintosh, Mr. Shelton stated:
I have worked in fear and shame now for the most part of my
four years here. I have been denied any and all advancement
of any kind. I have been harassed and humiliated in front
of my peers. I have been made to suffer physical pain while
doing my assigned tasks. 3 The last two days on this job
have been the worst ever. I have dumped material in the
wrong areas. I turned in front of another driver. I can no
longer work under these conditions. I am no longer asking
to be treated better. I am now demanding it! ... Taking

3Mr. Shelton was injured in three accidents while working
for Respondent. He broke both feet jumping from a burning haul
truck in October 1988 . In November 1990, he sustained a
concussion, three broken teeth, and a back injury, when a rock
struck him while his truck was being loaded . In December 1991, a
rock struck his truck and aggravated his back condition (Jt. EXh.
1, pp. 1 - 5). In none of these accidents was complainant at
fault (Tr. 271).

763

complaints and problems to supervisors has caused me grief.
This is why I made a federal complaint to M.S.H.A. Inspector
Jim Watson (Jt. Exh. 1, pp. 6 - 7).
on the last page of his letter, Mr. Shelton made a number of
statements which have been characterized as "requests" by him and
"demands" by Respondent. He stated that, if injured, he wanted
Sean Riley to be with him at all times. He wrote that he did not
want to be alone in any remote area of the mine site without a
radio that will reach base, that he wanted his instructions
posted in the mine security office, and that he wanted MSHA to
investigate any accident of any kind as soon as possible
(Jt. Exh 1, p. 7).
Mr. Shelton concluded his letter with this paragraph:
I want no one on one contact with Roy Rose ever again.
[I]n
four years of dealing with him, he has taught me well to
fear him.
I do not know if he would try to harm me
physically or not.
I will not take any chances from this
time forward.
I will not seek a restraining order on him at
this time.
If another incident happens to me involving him,
I will.
I will discuss these matters with you at your
request.
Mr. Shelton did not fear a physical assault by Mr. Rose, who
is smaller and older than Shelton (Tr. 133, 154-56). Rose never
physically threatened Shelton (Tr. 156). The fear to which
Shelton refers is that Mr. Rose would fire him (Tr. 154-55).
On November 28, 1992, Mr. Shelton reported to work for the
night shift after a three-day holiday. He gave a copy of his
letter to a company security officer and told her to call
Mr. Mcintosh at home (Tr. 58). He also gave a copy of the letter
to his shift foreman, Carl Gibson. Complainant worked the night
shifts on November 28, and 29, without incident. When he
reported to work on November 30, 1992, his foreman sent him to
Mcintosh's office (Tr. 58 - 61).
Mcintosh, who had not met Mr. Shelton before, told
complainant that they needed "breathing room" and that he was
suspending him with pay so that Respondent could invest1gate his
complaints (Tr. 62, 375 - 376). Mcintosh told Deborah Paparich,
the human resources director at the Sleeper mine, to investigate
the circumstances surrounding Mr. Shelton's letter (Tr. 335).
Three weeks later Shelton was asked to attend a meeting to
discuss his letter. In addition to Mr. Mcintosh and complainant,
Ms. Paparich and Sean Riley attended this meeting on December 21,
1992. Mr. Mcintosh asked Shelton about the statements made in
his November 26, 1992 letter. He responded that he stood by the
letter (Tr. 351, 381 - 382). Mr. Shelton again stated that he

764

could not work safely unless the company complied with his
requests (Tr. 348, 382).
Mr. Mcintosh told Shelton that he didn't understand why
Roy Rose was the focus of his discontent, when correspondence he
had looked at indicated that Dennis Brown was the source of his
problems (Tr. 348, 382). Mcintosh asked why Shelton did not take
his concerns up with the human resources department. Shelton ·
replied, "civil suit" {Tr. 349). 4
On December 22, 1992, Respondent hand delivered a letter
from Mr. Mcintosh to Mr. Shelton terminating his employment
(Jt. Exh. 2). The letter cited as reasons for Shelton's
termination an inability to interact and cooperate with mine
supervision, management concern regarding his ability to function
safely at the mine site, conditions placed by Shelton on his
future employment, and defamatory statements made by Mr. Shelton
regarding other employees. The letter also mentioned Shelton's
harassment of other employees as a factor in his termination.
Mr. Shelton filed a timely complaint with the Mine Safety
and Health Administration (MSHA) alleging that his termination
violated section 105{c) of the Act in that he was fired in
retaliation for activity protected by the statute. His complaint
was investigated by MSHA, which concluded that it was not
meritorious (Exh. R-1). Thereupon, Mr. Shelton filed a complaint
with the commission.
4

Mr. Shelton did not contradict the testimony of
Respondent's witnesses with regard to the December 21, 1992
meeting. His testimony suggests that he intimated that he was
considering filing some sort of lawsuit against Respondent. At
one point Shelton testified:
I told him [Mcintosh], I said it's probably going to go all
the way, all the way to court. And I did mention that how
exactly, I put it that way, I don't remember. He looked at
me at one point and said you have done this before, and I
said yes, but I didn't mean this before. I mean like
traffic court. I had been in court many times before (Tr.
70) •
Complainant has a history of threatening other people,
including supervisors, with legal action. He threatened
Dennis Brown with criminal prosecution in 1990 (Tr. 233, Exh. cl). Mcintosh, who reviewed Mr. Shelton's 1991 letters to
Dennis Brown and to General Manager Tom Irwin about Mr. Brown,
may have had this in mind when he said, "you have done this
before (Tr. 378, Exhs. C-1, C-2)."

'765

Analysis
The issue before the Commission is whether Respondent's
December 22, 1992 termination of Complainant violated· section
105(c) of the Act. 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 by
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), rev'd on other grounds
sub nom. consolidation Coal co. v. Marshall, 663 F.2d 1211 (3d
Cir. 1981), and Sec. ex rel. Robinette v. United 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 f acie 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.
Did Complainant Engage In Protected Activity?
There are several activities engaged in by Robert Shelton
between November 23, 1992, and December 22, 1992, that can
arguably be characterized as activity protected by section 105(c)
of the Act . On November 23, 1992, he asked to speak with MSHA
Inspector Watson. On November 24, 1992, he spoke with Watson
about his relationship with general mine foreman Roy Rose, and

76 6

asserted that he was a hazard to himself and others as the result
of his confrontation with Rose the previous morning.
On November 26, 1992, Mr. Shelton wrote to Mr. Mcintosh. Of
the statements made in that letter, the only ones that
conceivably constitute protected activity are his request/demand
for a radio that will reach base when working in remote areas of
the mine, and his request/demand that MSHA investigate "any
accident of any kind."
I conclude that complainant engaged in protected activity
with regard to each of the above, with the exception of the
substance of his conversations with Watson . With regard to the
other items, I would find a violation of section 105(c), if I
were to conclude that Mr. Shelton would not have been terminated
without them.
Analyzing complainant's conversation with the MSHA
Inspector, however, presents a very close question as to whether
it was protected by the Federal Mine Safety and Health Act.
Mr. Shelton did not talk to MSHA about any safety hazards other
than those presented by his emotional state due to his fear of
being fired . There was nothing that complainant could have
reasonably expected MSHA to do about his problems. Indeed, an
exchange between the undersigned and complainant establishes that
Mr. Shelton sought nothing from the inspector that was even
remotely related to Mr. Watson's authority:
THE COURT: Let me ask you something, what did you expect
Mr. Watson to do?
MR . SHELTON: I--really--I really don't know.
I had no idea
what his powers were, what he was doing to do.
But the most
important thing is that I think he would do something .
He
would address mine management. He would talk to Roy ... (Tr.
49)
What Mr. Shelton was asking of Inspector Watson was so
clearly outside MSHA's responsibilities, that his conversations
with MSHA personnel were unprotected by the Act. It is clearly
not within MSHA's authority to protect miners from discharge for
reasons unrelated to safety and health, or to seek better
treatment of miners regarding matters unrelated to the Act.
It is true that Mr. Shelton did cast his concerns as a
safety issue. Nevertheless, an allegation that a miner is a
nervous wreck because his supervisor doesn't like him is far
removed from what Congress intended to protect in enacting
section 105(c). Although I find that Respondent terminated
Mr . Shelton solely for other nonprotected reasons, I conclude

767

that nothing in the Act would have prevented it from firing him
for bringing his non-safety and health problems with Mr. Rose to
MSHA.
In this regard, I note that complainant made no effort to
seek redress from his employer--such as asking for the day off
and/or seeking intervention by the human resources department.
Given the fact that the company human relations department had
satisfactorily resolved his problems with Dennis Brown i n 1991, I
question Mr. Shelton's good faith in bringing his problems with
Mr . Rose to MSHA in December 1992 (Tr. 207 - 208).
Complainant failed to establish that his termination was in any
part motivated by protected activity
Although complainant's suspension and termination occurred
shortly after the protected activities described above, there is
neither direct nor circumstantial evidence suggesting that these
adverse actions were related to these activities. The reason no
inference can be drawn from the timing of the suspension and
discharge is that intervening unprotected events occurred which I
find caused his discharge.
The most important intervening event was the November 26,
Although some
statements in that letter may be protected, most of them are not .
The demand/request for "no one on one contact with Roy Rose ever
again," was sufficient grounds for discharge in of itself. No
employee has a right to tell his employer that he doesn't want to
be supervised by an individual selected by his employer for a
management position .
1992 letter to General Manager Mcintosh .

Mr. Mcintosh testified that he fired Mr. Shelton primarily
for being unable to work with site management (Tr. 384). I find
that explanation completely credible--particularly in light of
the fact that Mcintosh offered complainant an opportunity to
retract his requests/demands, which Mr. Shelton declined
(Tr . 3 51 , 3 81 - 3 8 2) •
Respondent also mentioned other reasons for the termination.
Mcintosh expressed concern regarding complainants' ability to
work safely (Tr. 384 - 385). In view of Mr. Shelton's assertion
that his encounter with Mr. Rose had rendered him a hazard to
himself and others, it was perfectly reasonable for Respondent to
conclude that he might again become a hazard since the company
legitimately had no intention of exempting him from contact with
Mr. Rose. I find Respondent's witnesses credible on this account
as well.
Ms. Paparich, Respondent's Director of Human Resources,
testified that her investigation of Mr. Shelton's letter also
apprised her of numerous unsafe acts he had engaged in, as well

7 58

as difficulties he had with other employees (Tr. 329-30, 338,
340). However, the record does not establish that Mr. Shelton
was any worse than a number of other employees in this regard
(Tr • 2 o3 , 21 o , 214 - 215 , 2 2 o , 2 2 4 , 2 2 9 , 2 3 9 ) •
This, however, does not advance complainant's assertion that
he was fired in retaliation for activities protected by the Mine
Safety and Health Act. The record in this case establishes that
complainant was fired primarily for his inability to get along
with Mr. Rose, his history of conflict with his supervisors, his
insistence that he not be supervised by Rose, and management's
concern that Mr. Shelton's continued employment with Nevada Gold
could be dangerous to himself and others (Tr. 360, Jt. Exh . 2) .
In conclusion, I find that complainant has failed to make
out a prima facie case of discrimination under section 105(c) of
the Act. Even assuming that the evidence in this case makes out
a prirna facie case, I find that Respondent has met its burden of
proving that it would have fired complainant for unprotected
activities without regard to those that are protected .

ORDER
Robert Shelton's discrimination complaint under section
105(c) of the Act is DISMISSED.

o:~ ~cl~~

Art~ J. Arnchan
Administrative Law Judge
703-756-6210

Distribution:
Henry Chajet, Esq., James Zissler, Esq., Jackson & Kelly, 2401
Pennsylvania Ave. , N. W., Suite 400, Washington, D. c. 20037
{Certified Mail)
Robert W. Shelton, 1630 Ballard Lane, Winnemucca, NV 89.4 45
{Certified Mail)
/jf

769

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

APR 7 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.

v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 92-195-M
A.C. No. 41-03200-05515
Docket No. CENT 92-196-M
A.C. No. 41-03200-05516

MORRIS SAND & GRAVEL
Respondent

Docket No. CENT 92-226-M
A.C. No. 41-03200-05517
Plant No. 1
Docket No. CENT 92-197-M
A.C. No. 41-03476-05517
:

Docket No. CENT 92-225-M
A.C. No. 41-03476-05519
Docket No. CENT 92-280-M
A.C. No. 41-03476-05520

:

Plant No. 2
DECISION
Appearances:

Olivia Tanyel Harrison, Esq . , Office of the
Solicitor, U.S. Department of Labor, Dallas, Texas,
for Petitioner;
Harriett Morris, Thomas Morris, Pro Se,
Spring, Texas,
for Respondent.

Before:

Judge Cetti

These consolidated cases are before me upon the petition for
civil penalties filed by the Secretary of Labor (Secretary) under
section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seq. the "Act. 11 The Secretary on behalf of
the Mine Safety and Health Administration (MSHA), charges the
Respondent, the operator of Morris Sand and Gravel (Morris), with
10 violations of regulatory safety standards in 30 C.F.R. Part 56
covering sand and Gravel mining operations.
770

The operator filed a timely answer contesting the alleged
violations. Pursuant to notice, a hearing on the merits was held
before me at Houston, Texas. The primary issues were the existence of tlie violations as alleged in each of the 10 citations,
whether certain violations were "significant and substantial,"
whether certain unwarrantable failure findings should be affirmed
and the appropriate penalties assessed. MSHA Inspector Joseph
Watson was Petitioner's only witness. Thomas Morris, Harriett
Morris and Leonard Ingle testified on behalf of Respondent.
Thomas and Harriett Morris are the working owners and
operators of Morris Sand and Gravel. This is a small family
enterprise located in Spring, Texas. The Morrises stated that
they are operating under Chapter 11 Bankruptcy under a Plan of
Reorganization signed by Judge Manuel D. Seal, United States
Bankruptcy Court Southern District of Texas Houston Division.
In addition to having a young lady in the scale house
Respondent normally had two employees in Plant No . 1 and two
employees at Plant No. 2. At the time of the inspection there
was only one person at Plant No. 1 and at the time of the hearing
Plant No. 1 wa~ no longer open.
STIPULATIONS

At the hearing the parties stipulated as follows:
1. Morris Sand and Gravel is engaged in commerce within the
meaning of the Mine Act and is subject to the jurisdiction of
that Act.
2.

The violations were abated in a timely fashion.

3. Morris Sand and Gravel employs about four people in the
field and one at the scale house.
4.

Respondent is a small sand and gravel operator.

5. Morris Sand and Gravel filed for Chapter 11 Bankruptcy
on August 21, 1987, in United States Bankruptcy Court Southern
District of Texas Houston Division and was assigned No. 87-08067Hl-11. The Plan of Reorganization was signed by Judge Manuel o.
Leal on April 17, 1989.
Docket No. CENT 92-196-M
Citation No. 03899553
§

This citation alleges a non S&S violation of 30 C.F.R.
56.16005. This mandatory safety standard provides as follows:
Compressed and liquid gas cylinders shall
be secured in a safe manner.

771

Inspector Watson testified that during his inspection he
observed two gas cylinders unsecured and leaning against each
other on "soft ground." He believed the possibility. of an accident occurring was "unlikely" because of the minimal number of
people working at the plant. He stated that there was a "limited
amount of exposure." The violation was promptly abated.
The evidence presented established a non S&S 104(a) violation of the cited safety standard as alleged in the citation.
The citation is affirmed.
Docket No. CENT 92-196-M
citation No. 03898636

This citation alleges a non S&S 104(a) violation of 30
C.F.R. § 56.006 which states in pertinent part "Valves on compressed gas cylinders shall be protected by covers when being
transported or stored."
Inspector Watson testified that he observed bottles (cylinders) on a welding trailer at the edge of the yard. The compressed gas cylinders were not in use and did not have covers on
the valves.
The Respondent did not dispute that the valves were not
covered but stated the possibility of injury was unlikely because
the cylinders were sto.r ed on a welding rack and further secured
by a chain. The inspector agreed that the possibility of injury
occurring was unlikely and stated that was why the violation was
cited as a "non S&S" 104(a) violation.
Even though injury was unlikely the standard provides for no
exceptions. When the cylinders are being stored they must be
capped. The evidence presented clearly established the violation of the cited safety standard. The citation is affirmed.
Docket No. CENT 92-226-M
Citation No. 3898637

This citation alleges a 104(a) non S&S violation of 30
C.F.R. § 56.420l(a)(2). This safety standard reads as follows:
(a) Firefighting equipment shall be inspected
according to the following schedules:
(2) At least once every twelve months, maintenance checks
shall be made of mechanical parts, the amount and condition of
extinguishing agent and expellant, and the condition of the
hose, nozzle, and vessel to determine that the fire extingl.iishers will operate effectively.

772

The citation alleges that the fire extinguisher on the
dredger at Plant 1 had not been inspected for more than 12
months. The evidence presented established that the fire extinguisher had last been inspected and serviced about 15 months
prior to the date the citation was issued. The evidence was
undisputed.
By way of mitigation Respondent presented evidence it had
contracted with an independent company to conduct regular yearly
inspections and servicing of fire extinguishers and that company
had not performed its job in a timely manner as required by the
contract . The violation was timely abated.
As pointed out in the Secretary's brief, irrespective as to
whose acts caused the violation, the operator is responsible.
Allied Products Co., 666 F.2d at 894.
The 104(a) non S&S violation of 30 C.F.R . § 56.4201 was
established as charged in the citation. The citation is
affirmed.
Docket No. CENT 92-197-M
Citation No. 3899542

This citation alleges a 104(d) (1) S&S violation of 30 C.F.R.
56.12025. The citation states that the ground lug was missing
on the plug of the long extension cord to the 110v electric motor
for the diesel fuel pump.
§

MSHA Inspector Joseph Watson who made the inspection testified that the extension cord was plugged into a llOv receptacle.
The pump was not in use but the cord was energized.
The inspector stated that if an accident occurred it could
be expected to cause serious injury or death. He stated that
"if" there is a fault, it is almost certain there is going to be
an injury. The violation was promptly abated by taking the
extension cord out of service.
The inspector conceded on cross-examination that he does not
know who plugged the cited extension cord with a .. missing ground
lug into the receptacle.
Leonard Ingle called by Respondent testified that he lives
across the street from Respondent's plant. He is a neighbor. He
is not an employee of Respondent. The extension cord in question belonged to him and not to Respondent.

Mr. Ingle explained that he went to Respondent's plant to
pump diesel fuel into his truck. He pulled Respondent's extension cord out of the wall socket and inadvertently damaged the
cord so that i t was no longer functional. Mr. Ingle went across

773

the street to his place and got the extension cord in question
out of his shed behind his house and substituted his extension
cord which had no ground lug for Respondent's cord. ·He did this
"real quiet" because he "didn't want Tom (Morris} to get mad" at
him for destroying the plant's extension cord.
Mr. Tom Morris testified that the witness Leonard Ingle is a
good customer and is not an employee. Morris was not aware that
Ingle had "torn up" the plant's extension cord and substituted
his (Ingle's) cord for the one Morris used to energize its pump.
Morris stated he "certainly wasn't aware" that there was no
ground lug on the substituted extension cord and he knew nothing
about the substitution prior to receiving the citation.
As pointed out by Petitioner it is "irrelevant whose act
(caused) the violation." Allied Products Co., 666 F.2d 894. The
evidence clearly established a violation of 30 C.F.R. § 56.12025.
The fact of violation is affirmed.
Whether or not the violation was "significant and substantial" or resulted from Respondent's "unwarranted failure" will be
discussed below along with other contested citations issued by
the inspector that were also characterized S&S and as "unwarrantable failure" on the part of Morris Sand and Gravel.
Docket No. CENT 92-195-M
citation No. 3899554
§

This citation alleges a 104(d) (1) s&s violation of 30 C.F.R.
56 . 14130(g} which reads in pertinent part:
Seatbelts shall be worn by the equipment
operator .

Inspector Watson testified that when he inspected the sand
and gravel operation at Plant No . 1 there was only one person
working at the plant . That employee, Larry Wickman, was operating a front-end loader, loading the trucks of customers who
purchased material at the plant. The inspector later observed
the employee operate the loader along a haul road to repair a
berm . At that time the inspector observed the employee did not
have his seat belt fastened.
On cross-examination when asked as to the speed of the
loader at the time of violation the inspector replied "I doubt
very much (the loader) ever exceeded three to four miles an
hour."
The evidence presented clearly established a violation of 30
C.F.R. § 56.14130(g). The fact of violation is affirmed.

7 74

The question of the penalty and whether the violation is a
104(d) (1) S&S violation will be considered and discussed below
along with other citations that were so designated.
significant and Substantial Violations

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. § 814(d) (1). A violation is properly designated significant and substantial "if, based upon the particular facts surrounding the violation there exists a reasonable likelihood that
the hazard contributed to will result in an injury or illness of
a reasonably serious nature." Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (April 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 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 likeli- hood that the hazard
contributed to will result in an injury; and
(4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129, the Commission stated:
We have explained further that the third
element of the Mathies formula "requires that
the Secretary establish a reasonab°Ie 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).
The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation. Secretary of Labor v. Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal
Company, 9 ·FMSHRC 2007 (December 1987). In addition, any
determination of the significant nature of a violation must be

77 5

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).
UNWARRANTABLE FAILURE

In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987),
the commission held that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Ordinary
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." Unwarrantable failure is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference" or a
"serious lack of reasonable care." Emery, supra, at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94
(February 1991) .
DISCUSSION

Was the violation of 30 C.F.R. § 56.12025 a 104(d) S&S
violation? Mr. Morris' credible testimony established that the
extension cord Respondent installed had a ground lug and was
properly grounded. Respondent was unaware that a third party,
Mr . Ingle, had damaged the Respondent's extension cord and
replaced it with one that had the ground lug missing. The fact
that Respondent was unaware is irrelevant on the issue of the
existence of the violation. As pointed out in Petitioner's brief
the Fifth Circuit has held that "if the Act or its regulations ·
are violated, i t is irrelevant whose act precipitated the
violations or whether or not the violation was found to affect
safety; the operator is liable." Allied Products co. v. FMSHRC,
666 F.2d .890, 894 (5th Cir. 1982). The violation of the safety
standard was established but there remains a question as to
whether it was properly designated a 104(d) S&S violation.
In the Mathies case the third element required to establish
a violation of a mandatory safety standard as significant and
substantial is a "reasonable likelihood that the hazard contributed to will r .e sult in an injury." The purpose of a ground is
to protect an exposed person'. from injury in the event there is a
ground fault.
In this case the inspector stated that the "possibility" of an accident occurring was likely but no evidence whatever was presented about conditions in the area of the violation
or the condition of the cord that would persuasively show a
ground fault was reasonably likely to occur. There was no evidence of damp or wet conditions in the area, no evidence of worn,
chaffing or disintegration of cord sheath or cord insulation, nor
of any loose clamps, fittings or other conditions in the area or
the condition of the cord that would indicate a ground fault was
more than a possibility.

776

With respect to a possibility of a ground fault the
inspector only stated "if there was a fault" there would be an
injury. Since Petitioner has the burden of proof there should be
some persuasive evidence about the circumstances or about the
conditions in the area of the violation or the condition of the
llOv cord to persuade the trier of the fact that there was more
than a mere possibility of a ground fault. The evidence was
insufficient to establish the third element of the Mathies
formula. Within the framework of the law and evidence presented
I find the evidence did not establish an S&S violation of the
cited standard.
With respect to the designation of unwarrantable conduct, I
find that the evidence presented established that Respondent was
unaware that a third party, Mr. Ingles, had substituted an
extension cord without a ground plug for Respondent's extensi on
cord which was properly grounded. Petitioner points to the
requirement of an uncited standard [30 C.F.R . § 57.18002(a))
which provides that "each working place should be examined at
least once each shift for conditions which may adversely affect
safety or health." 30 C.F.R. § 57.18002(a). There was, however,
no satisfactory, evidence as to how long the violative condition
existed . I know of no requirement that Respondent pull the
various extension cords in use on the work site out of their
sockets each day to determine if someone has substituted the
properly grounded extension cord with one that has the ground
plug missing. Even assuming that the uncited standard referenced
by Petitioner requires such conduct we have insufficient evidence
in this case as to how long the violative condition existed other
than a "short time."
Even more important and germane to the issue there is no
persuasive evidence of conduct on the part of Respondent that
should be characterized as "aggravated conduct constituting more
than ordinary negligence . " It is on this basis that I find the
violation cited was not a result of Respondent's "unwarrantable
failure." The violation was a 104(a) non S&S violation of the
citation and it shall be so modified.
Citation No. 3899554 designated by the inspector as a 104(d)
S&S violation was issued when the inspector observed that the
operator of the front-end loader while traveling not more than 3
or 4 miles per hour, along the haul road had failed to fasten his
seat belt.

The loader operator was abating a citation issued earlier
that day for an inadequately bermed area with a drop-off. The
inspector did not take measurement. He described the grade in
the area at a . "slight grade", "not very much", "probably" in the
"two to five percent range."

77 7

The operator's failure to fasten his seat belt was clearly a
serious violation of 30 c . F.R. S 14130(g) involving a moderate to
high degree of ordinary negligence on the part of the operator.
I find the first two elements of the "S&S" criteria were
clearly established. I do not find, however, the evidence
established the third element of the Mathies "S&S" criteria. A
significant and substantial violation is not established by
merely showing that the chance of an injury is more than remote
or speculative. See National Gypsum, supra. Accordingly, I find
this violation of 30 C.F.R . § 14130(g) was not an S&S violation.
with respect to the unwarrantable failure finding it appears
the operator in his haste to correct a citation for an inadequate
berm, thoughtlessly and inadvertently neglected to fasten his
seat belt. Was this conduct properly characterized as unwarrantable failure? Unwarrantable failure is aggravated conduct constituting more than ordinary negligence .
Emery Mining Corp., 9
FMSHRC 1997, 2004 (1997). Unwarrantable failure is characterized
by such conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of reasonable care."
Rochester and Pittsburgh Coal Co., 13 FMSHRC 189 (1991) . The
Commission has also stated that use of a "knew or should have
known test by itself would make unwarrantable failure indistinguishable from ordinary negligence" and, accordingly, the Commission rejected such an interpretation. Secretary v. Virginia·
Crews Coal Co., 15 ·FMSHRC 2103 (1993).
Within the framework of the law and the evidence presented I
find this violation resulted from the operator's moderate to high
ordinary negligence and was not a result of Respondent's "unwarrantable failure." The violation was a 104(a) non S&S violation
of the cited seat belt standard and shall be so modified.
Docket No. CENT 92-225-M
Citation Ho. 3899548

Citation No. 3899548 charges Morris with a 104(a) S&S violation of 30 C.F.R. § 56.1410l(a)(3) which requires all braking
systems on mobile equipment be maintained in functional condition. The citation states that the parking brake on the frontend loader in the material yard and plant area "does not work."
Respondent in its answer as well as its testimony at the hearing
admitted the parking brake was not working . By way of mitigation
Respondent presented evidence that the material yard in which the
loader was used is level and there was never any need to use the
parking brake. The loader was parked in gear.
The undisputed evidence presented established a violation of
30 C.F.R. § 56.1410l(a) (3). The first two elements of the
Mathies formula were clearly established. The evidence is
insufficient to establish the third and fourth elements of the

778

Mathies criteria. The violation was not S&S. The citation shall
be modified to a 104 non S&S and affirmed as modified.
citation No. 3898638 alleges a 104(a) s&s violation of 30
C.F . R. § 56.1410l{a) (3). The inspector alleged and at the hearing testified that the front-end loader's· service brakes were
very inadequate and would barely stop the loader on the flat
surface of the yard. He stated that with the loader traveling
about 3 miles per hour it took approximately 50 feet to 60 feet
to stop the loader by use of the service brakes alone. In addition it was established that this loader did not have a functiona l parking brake that could be used in an emergency to stop the
loader. The inspector noted that the operator of the loader was
"quite good" at stopping the loader by use of the transmission,
but this is not what the standard requires.
Mrs. Morris contended that the brakes were adequate to stop
the loader and stated that they had never had a loader run into
anything and never had an accident of any kind.
I credit the testimony of the inspector that the service
brakes on the f~ont-end loader were not maintained in functional
condition and that with continued use of the loader in normal
mining operations with the service brakes in such poor condition
an accident resulting in serious injury was reasonably likely to
occur. I conclude that all four elements of the Mathies formula
were established . The violation was properly cited as a "signicant and substantial" violation.
The evidence established a significant and substantial
violation of 30 c.F.R. § 56.1410l{a) (3) . This citation is
affirmed as written without modification.
Docket No. CENT 92-225-M
Citation No. 3899546
This citation charges the operator with a 104(a) S&S
violation of 30 C.F.R. § 56.14132(a). It alleges that the backup alarm on the front loader was not functioning. 30 C.F.R.
§ 56.14132 requires audible warning devices on self-p~opelled
mobile equipment "shall be maintained in functionable condition."
In Plant No. 1, where only one employee was working, the
inspector observed that employee was operating the front-end
loader loading a truck. The inspector observed that the backup
alarm was not functioning when the loader was backing up.
Respondent in its answer and testimony concedes that the
backup alarm was temporarily out of order and states that the
plug of the wire to the alarm, unknown to the operator, had
jiggled out of the receptacle and when pl~gged back into the
transmission, the alarm was functional. Respondent also

779

presented credible evidence that the loader was a substitute
loader that was being temporarily used while the loader that was
regularly used at the plant was temporarily out of service for
repairs.
The violation of 30 C.F.R. § 56.132(a) was clearly established. The fact of violation is affirmed.
With respect to the S&S designation, there were no employees
exposed to the hazard since the only employee at the plant was
operating the loader. The inspector testified however, that he
observed two instances where a customer got out of the cab of his
truck while waiting to be loaded. Respondent presented credible
evidence that customers normally stay in the cab of their truck
while waiting to be loaded.
Failure to have the backup alarm on a front-end loader
functional at all times is a serious violation with a high
potential gravity. I have no difficulty finding the first two
and the fourth elements of the Mathies formula.
In the instant
case where the only employee at the plant was the operator of the
loader I do not find the evidence sufficient to persuade me that
the third element of the Mathies formula was established. The
citation shall be modified accordingly to a 104(a) non S&S
violation.
Docket No. CENT 92-196-M
citation No. 3899552

This citation alleges a 104(a) S&S violation of 30 C.F.R.
at Plant No. 1. The citation reads as follows:

§ 56.9300{a)

No berm was provide (sic) along the main
axces (sic) road next to the stock pile.
(Customer's) Haul trucks drive within (5')
five foot of the {8') eight foot drop off.
Loader uses this road, traveling to and from
various stock piles .
The cited safety standard 30 c.F.R. § 56.9300{a) provides as
follows :
Berms or guardrails shall be provided and
maintained on the banks of roadways where a
drop-off exists of sufficient grade or depth
to cause a vehicle to overturn or endanger
persons in equipment.
The inspector "noticed" there was an inadequate berm along a
road where customers parked their trucks to be loaded. The
existing berm had deteriorated. A few feet off the. roadway (five
feet) was what the inspector described as a "shallow" drop-off.

1ae

He did not measure the drop-off but he estimated it to be a 6 to
8 feet deep.
This haul road was used by customers and the one employee
working at the plant. The employee was operating the front-end
loader to load trucks and intermittently to rebuild the berm.
The loader was not traveling more than 3 or 4 miles an hour.
The evidence presented established a violation of the cited
safety standard 30 C.F.R. § 56.14120(g).
The 6- to 8-foot drop-off was 5 feet from the outer edge of
the haul road used by customers in trucks and one employee. This
failure to have a berm is a serious violation but not an S&S
violation in the instant case since the evidence is insufficient
to establish the third element of the Mathies criteria. This
finding is consistent with the evidence that there has never been
an accident at the plant since its beginning in 1979. The citation shall be modified to a 104(a) non S&S violation of the cited
safety standard.
Docket No. CENT 92-280-M
Citation No. 03899541
§

This citation alleges an S&S 104(a) violation of 30 C.F.R.
56.12040.
The citation cited reads as follows:
The electrical enclosure approximately 3' by
3' at the MCC for the plant contains several
breakers and re-sets. In order to operate
these controls employees are exposed to the
many energized parts in the box.

30 C.F.R. § 56.12040 provides as follows:
Operating controls shall be installed so that
they can be operated without danger of
contact with energized conductors.
The inspector testified that he observed an electrical
enclosure in which operating controls consisting primarily of a
group of switches were installed. In order to reset a breaker
one would have to open the door of the enclosure box. When the
door was opened to reset a breaker, various inner parts in the
enclosure remained energized. The person resetting the breaker
was thus exposed to the danger of contact with energized conductors.
By way of mitigation Respondent presented evidence that
there was some misunderstanding of what was required to comply

781

with the standard. Mr. Morris was under the impression that
Respondent was in compliance. This violation was timely abated.
The evidence presented established a violation of the cited
safety standard, 30 C.F.R. § 56.4201.
The inspector testified that contact with an exposed part
was reasonably likely when an employee resets a breaker or
performs a similar task. Contact with an exposed part would
reasonably likely result in a serious injury or a fatality.
I
agree with the inspector that there was a reasonable likelihood
that the hazard contributed to, with continued normal mining
operations would result in an event in which there would be
serious injury.
The violation was significant and substantial.
The citation is affirmed as written without modification.
Penalty Assessment
In a contested civil penalty case the judge hearing the case
is not bound by the penalty assessment regulations and practices
followed by MSHA's Office of Assessments in arriving at initial
proposed penalty assessments. After a hearing in a contested
case the amount of the penalty is assessed de nova by the judge
based on the statutory criteria specified in section llO(i) of
the Act, 30 U.S.C. § 820(i), and the relevant evidence developed
in the course of the hearing.
Shamrock Coal Co., 1 FMSHRC 469
(June 1979); aff'd, 652 F.2d 59 (6th Cir. 1981); Sellersburg
Stone Company; 5 FMSHRC 287, 292 (March 1983).
I have considered the statutory criteria specified in
section llO(i) of the Act. Morris Sand and Gravel is a small
family-owned and operated Sand and Gravel business.
It appears
from the record that the working owners, operators of this small
enterprise are operating under Chapter 11 of the Bankruptcy Code
to pay all past obligations. All citations were timely abated
showing good faith in achieving compliance with the Act. Negligence and gravity have been considered and discussed along with
the issues of significant and substantial violations and unwarrantable failure.
Having considered the 6 statutory criteria set forth in
section llO(i) of the Act and particularly my concern that the
proposed civil penalty assessments on this small operator may
adversely affect Respondent's ability to continue in business, I
deem it appropriate in this case to assess a civil penalty of $50
for each of the 104(a) non S&S violations and $100 penalty for
each of the 104(a) S&S violations.
I believe these penalties in
this case will effectuate the deterrent purpose of the Act.
See
Robert G. Lawson Coal Company, 1 I~MA 115, 117-118 (1972).

782

ORDER

It is ORDERED that the fact of violation in each of the 10
citations referenced above in all 6 dockets be AFFIRMED.
>

It is further ORDERED that the significant and substantial
designation for Citation No. 3898638 in Docket No. CENT 92-226-M
and Citation No. 3899541 in Docket No. CENT 92-280-M be AFFIRMED.
It is further ORDERED that Citation No. 3899552 in Docket
No. CENT 92-196-M and Citation No. 3899548 and Citation No.
3899546 in Docket No. CENT 92-225-M be MODIFIED by deleting the
significant and substantial designations.
It is further ORDERED that Citation No. 3899554 in Docket
No. CENT 92-195-M and Citation No. 3899542 in Docket No. CENT 92197-M be MODIFIED by deleting the unwarrantable failure finding
and the significant and substantial designations.
It is further ORDERED that the penalty assessments for
violations in each of the dockets be as follows:
Docket No. CENT 92-195-M

Citation No.

Penalty Assessment

3899554

$ 50.00

Docket No. CENT 92-196-M

3898636
3899552
3899553

$ 50.00
50.00
50.00

Docket No. CENT 92-197-M

3899542

50.00

Docket No. CENT 92-225-M

3899546
3899548

50.00
50.00

Docket No. CENT 92-226-M

3898637
3898638

50.00
100.00

783

Docket No. CENT 92-280-M

100.00

3899541

TOTAL

$600.00

It is further ORDERED that RESPONDENT PAY the above assessed
penalties within 40 days of the date of this decision. Upon
receipt of payment these cases are dismissed.

~{!ff.

Au st F. Cetti
Adininistrative Law Judge

Distribution:
Olivia Tanyel ·Harrison, Esq., Office of the Solicitor, U.S.
Department of Labor, 525 Griffin street, suite 501, Dallas, TX
75202
(Certified Mail)

& GRAVEL, 6106 Larkmount Road,
(Certified Mail)

Mro Thomas Morris, MORRIS SAND

Spring, TX 77389

sh

784

FEDERAL MINE SAFETY A'4D HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

_AeR 7 1994
BRYAN WIMSATT,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 93-735-D
MADI CD 93-08

GREEN COAL COMPANY, INC.,
Respondent

Henderson County Mine No . 1
ORDER OF DISMISSAL

Before:

Judge Maurer

All the parties to this proceeding have reached an amicable
settlement an~ counsel have therefore jointly moved to dismiss
this proceeding, with prejudice, on the basis of their settlement
agreement .
Accordingly, and for good cause shown, the proposed
settlement is approved, the motion to dismiss is GRANTED, the
hearing presently set for April 7, 1994, in Owensboro, Kentucky,
is CANCELED, and the captioned proceeding is DISMISSED, with
prejudice.

. Maurer
trative Law Judge
Distribution:
Frank P. campisano, Esq., First Trust Centre, Suite 10 North,
(Certified Mail)

200 South Fifth Street , Louisville, KY 40202

Mary Lee Franke, Esq., Kahn, Dees, Donovan & Kahn, 305 Union
Federal Building, P. o. Box 3646, Evansville, IN 47738-3646
(Certified Mail)
dcp

785

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMrSSION
1730 K STREET NW, 6 TH FLOOR
WASHING TON, D.C.

20006

April 7, 1994

CIVIL PENALTY PROCEEDINGS

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

Docket No. YORK 93-14-M
A. C. No. 27-00296-05502
Docket No. YORK 93-19-M
A. C. No. 27-00296-05503

v.
DOW SAND & GRAVEL,
Respondent

Docket No. YORK 93-20-M
A. C. No. 27-00296-05505
Docket No. YORK 93-28-M
A. C. No. 27-00296-05504
Dow Sand & Gravel

DECISION APPROVING SETTLEMENTS
Before:

Judge Merlin

These cases are before me upon petitions for the assessment
of civil penalties under section 105(d) of the Federal Mine
Safety and Health Act of 1977. The Solicitor has filed motions
to approve settlements for all the violations involved i n these
cases. The Solicitor proposes to settle these cases upon a
payment of $149 by the operator.
The basis for the Solicitor's proposed settlements is the
operator's ability to pay. According to the Solicitor, this is a
family owned mine which is operated on an intermittent basis, is
small in size, and has been operatoring at a loss. In addition,
the operator has had equipment repossessed and is undergoing
financial hardship. The Solicitor further states that the operator has evidenced an improved attitude toward compliance.
Finally, the Solicitor advises that the wife of the owner of the
mine is very ill and the owner does not have health insurance.
I have reviewed the Solicitor's detailed motions. In light
of the circumstances presented in these cases, I conclude that
the proffered settlements are appropriate under section 110 of
the Mine Act. The file contains a memorandum from MSHA's office
of assessment indicating that the operator has paid the agreed
upon settlement amount.

786

WHEREFORE, the motions for approval of settlement are
GRANTED, and the operator having paid, it is ORDERED that these
cases be DISMISSED .

... - .

~-- - ·-

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

David L. Baskin, Esq., Office of the Solicitor, u. s. Department
of Labor, One Congress Street, 11th Floor, P. o. Box 8396,
Boston, MA 02114
Mr. E. Milton Dow, Dow Sand & Gravel, RR 1, Box 181, Ossipee, NH
03864
/gl

787

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

APR

7 1994·

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), ON
BEHALF OF ROBERT E.
MCCARTNEY,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 94-72-D

v.
Jim Bridger Mine
BRIDGER COAL COMPANY,
Respondent
ORDER OF DISMISSAL

The Secretary of Labor has moved to dismiss the proceeding
in this matter in light of Mr. McCartney's voluntary withdrawal
of his discrimination complaint. The motion is GRANTED and this
case is DISMISSED.

CLJllACl~

Arth~rL-;. Amchan

Administrative Law Judge
703-756-6210

Distribution :
Kristi Floyd, Esq . , Office of the Solicitor, U. s. Department of
Labor , 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Mark N. Savit, Esq . , Jackson & Kelly, 2401 Pennsylvania Ave., N.
w., Suite 400, Washington, D. c. 20037 (Certified Mail)
/jf

788

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SICYLINE, 10th FL~
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 1 2 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING

.. Docket No. KENT 93-715

. A.C. No. 15-08293-03567
0

No. 4 Mine

RB COAL COMPANY, INC .,
Respondent
DECISION
Appearances:

Donna E. Sonner, Esquire , Office of· the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
tor the Petitioner;
Darrell Cohelia, Safety Director, R B coal
Company, Pathfork, Kentucky, for the Respondent.

Before :

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c . §801
.@.t. seg., the "Act, 11 charging RB Coal company, Inc . (RB) with
three violations of mandatory standards and seeking civil
penalties of $8,900 for those violations. The general issue is
whether R B violated the cited standards and, if so, what is
the appropriate civil penalty to be assessed . Additional
specific issues are addressed as noted.
Order No . 3829635 issued pursuant to section 104(d)(l} of
the Act alleges a "significant and substantial" violation of
the standard at 30 C.. F.R . § 75.400 and charges that "float coal
dust was allowed to accumulate along the No . 1 belt ·conveyor for
a distance of 31 brakes [sic] . 111

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

The cited standard provides that "(c]oal 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."
Roger Dingess is a roof control specialist for the
Mine Safety and Health Administration (MSHA) with considerable mine industry experience , including work as a roof
bolter and section foreman . on March 8, 1993, during the
course of an inspection and accompanied by Mine Superintendent
Paul Goins and MSHA Electrical Inspector Guy Fain, Jr . , Dingess
observed at the air lock along the No . 1 belt conveyor, a 2-foot
pile of fine loose coal. Traveling the entire the No. l beltline he further observed black coal dust along the beltline for
31 breaks (approximately 1800 feet) . The dust was on top of a
layer of rock dust, was a fine powdery coal and, according to
Dingess, could easily become suspended. Based primarily on the
particularly black color of the coal, Dingess opined that the
condition had been present for one or two weeks. In addition ,
Dingess opined that the dust had been deposited at a rate of
about 1/4 inch per shift at the air lock where the coal dust
was two feet deep. Based on this credible evidence, I find that
the Secretary has sustained his burden of proving the violation
as charged.
The violation was also "significant and substantial"
and of high gravity . A violation is properly designated as
"significant and substantial" if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature . Cement Division, National

fn. l (continued)
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."

790

Gypsum Co., 3 FMSHRC 822, 825 (1981). In Mathies Coal Co.,
6 FMSHRC 1, 3-4 ( 1984) , the commission explained:.
In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety
standard, (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the
violation, (3) a reasonable likelihood that the hazard
contributed to will result in an injury, and (4) a
reasonable likelihood that the injury in question
will be of a reasonably serious nature.
See also Austin Power co. v. Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(1987) (approving Mathies criteria).
The third element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an
injury (U.S ~ Steel Mining Co., 6 FMSHRC 1834, 1836 (1984), and
also that in· the likelihood of injury be evaluated in terms of
continued normal mining operations (U.S. Steel Mining Co •. Inc.,
6 FMSHRC 1473, 1574 (1984); see also Halfway. Inc., 8 FMSHRC 8,
12 (1986) and Southern Oil Coal Co., 13 FMSHRC 912, 916-17
(1991).
In determining that this violation was "significant and
substantial" Inspector Dingess noted that the fire sensor
powerlines had been severed and were lying on the mine floor
along side the No. 1 belt conveyor. According to Dingess this
severed powerline could itself ignite the coal dust from sparks
and, if there was a fire, with the fire sensor lines cut, there
would be no fire alarm and the automatic water deluge system
would not function. In addition, he observed that a belt roller,
as well as the belt itself, was running in the two-foot pile of
coal dust at the airlock. On the basis of these ignition sources
and with no functioning fire sensor alarm and water deluge
system, Dingess concluded that it was "highly likely" for fatal
injuries to occur from an explosion or mine fire. ·
It is noted that Electrical Inspector Fain corroborated
Dingess' observations of the amount of coal dust and confirmed
that the severed fire sensor line could indeed provide a source
of ignition for the coal dust. This credible evidence clearly
supports the "significant and substantial" findings. In
reaching this conclusion I have not disregarded the testimony
of Superintendent Goins in respons~ to the question whether
there was enough power in the exposed leads to cause a spark.
He responded, "I'm not sure on it, but I don't think the fire

791

sensor line works off power" (Tr. 198) . This testimony is,
however, too equivocal to be given probative weight.
Inspector Dingess further concluded that the violation
was the result of R B's "unwarrantable failure." :en 1mery
Mining Corp., 9 FMSHRC 1997, 2004 (1987), the Commission held
that unwarrantable failure is aggravated conduct constituting
more than ordinary negligence and that it is characterized by
such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or "a serious lack of reasonable care." Rochester
and Pittsburgh Coal Co., 13 FMSHRC 189 (1991).
In support of his "unwarranta;>le" findings the Secretary
notes that superintendent Goins told Inspector Dingess that
he had performed a preshift examination on the beltlines the
day before the order was issued. Indeed, Goins himself
acknowledged that he then observed these conditions. It is
not disputed, however, that the conditions were in fact not.
reported in the appropriate examination books for March 7.
While Goins also maintains he had at the time the order was
issued already assigned men to commence cleanup along the beltline he acknowledges that he failed to advise the inspectors
of this fact at the time the order was issued. Under the
circumstances I can give Goins' testimony in this regard but
little weight. It would be reasonable to expect Goins to
inform the inspection party that he had commenced cleanup
when he was issued the order .
The evidence therefore that Goins knew of the cited
conditions at least the day before the order was issued yet
failed to report those conditions in the appropriate examination books and failed to take sufficient cleanup action
is evidence of high negligence and "unwarrantable failure."
The history of six prior violations of the same standard
dating from June 13, 1991, further supports a finding of
high negligence and "unwarrantable· failure." See Youghiogheny
and Ohio Coal Co . , 9 FMSHRC 2007 (1987).
In reaching these conclusions, I have not disregarded the
testimony of superintendent Goins, who, while admitting that
the beltline needed cleaning, stated that it was not a dangerous
condition because half of the area was wet (and that even if
there was an explosion the air locks would limit the explosion)
and that no one was apparently working along the beltline at the
time of the violation. The fact is, however, that the inspection
party itself was present within the area of the cited conditions,
that an explosion, even assuming it could be contained within
two air locks, would be serious and at least one half of the
cited area was admittedly dry. Goins' ' testimony therefore would
not in any event negate the findings in this case. In addition,
I can give no weight to the arguments in Respondent's Brief based
on evidence not in the trial record.

Order No. 4043391, also issued pursuant to Section 104(d)(l)
of the Act, alleges a "significant and substantial" violation of
the standard at 30 C.F.R. § 75.515 and charges as follows:
The 300 KVA power center located at No. 33 P.U .
were [sic] the high voltage (7 , 200) enters the power
center had exposed conductors, were [sic] the insulated
bushing had been pull [sic] out of the power center.
Electrical Inspector Fain testified that during the
course of the inspection on March 8, 1993 , he observed that
on the cited power center the bolts on the entrance gland had
been sheared off and the bottom of the plate on the outside
had separated from the frame by four to six inches. According
to Fain, the sheared portion of the bolts was "fresh looking"
and he therefore concluded that the damage had only recently
occurred . According to Fain the two wire phases were touching
inside the metal box and there was very poor insulation on the
wires since the mesh protection had been removed . Fain opined
that if the wires had become exposed, for example, through
vibration and friction to the insulation, and contacted the
metal frame . of the power center it could become energized and
someone touching it could be electrocuted .
Inspector Dingess opined that the violation was "significant and substantial" because it would be highly likely for
someone touching the power center under the circumstances to
suffer fatal electrocution . Under the circumstances, I agree
with Dingess and Fain that there was a reasonable likelihood
because of the damage to the power center that it could become
energized subjecting anyone touching the metal box to electrocution . In this regard I have also considered the testimony of
Certified Electrician Tim Creech that if the insulation was off
the lead then the metal frame of the box would become energized.
The violation was accordingl y "significant and substantial."
I do not, however, agree with the conclusions that the
violation was the result of "unwarrantable failure . " The
Secretary's findings in this regard were based upon an alleged
statement by superintendent Goins that the box had been worked
upon the night before and the condition should therefore have
been discovered and corrected at that time. Clearly, however,
the cited condition could have occurred subsequent to any such
work and indeed Fain testified that the condition had occurred

only very recently. Under the circumstances, I find that the
Secretary has simply failed in his burden of proving this issue.
Accordingly, the order must be modified to a citation under
Section 104(a) of the Act .

793

Order No . 3829637 alleqes a "siqnificant and substantial"
violation of the standard at 30 c.F.R. § 75.202(a) and, as
amended at hearing, charges as follows:
Unsupported roof was present along the No. 1 belt
conveyor and area 60 feet times eiqht feet was
unsupported at brake 23 and extended to the 24 brake
[sic] on off side of belt conveyor where persons are
required to travel. An area eight feet by eight feet
was unsupported where the bolt had been knocked out
and draw rock had fallen at the brake [sic] 31 on right
side of belt in the travelway. The roof of areas where
persons work or travel was not supported or otherwise
controlled to protect persons from hazards related to
falls of the roof.
The cited standard, 30 C.F.R. § 75.202(a), provides that
"the roof, face and ribs of areas where persons work or travel
shall be supported or otherwise controlled to protect persons
from hazards related to falls of the roof, face or ribs and coal
or rock bursts."
Inspector Dingess testified that during the course of his
inspection along the No. l beltline on March 8 , 1993, he observed
the cited conditions. In the first area cited there were no roof
bolts in the cited 60-foot-by-8-foot area and, according to
Dingess, there should have been four bolts every four feet for
the entire 60 foot length. This was on the off side of the belt
which, according to Dingess, is used for cleanup and to check
offside rollers. According to Dingess the belt had been located
in the position for at least 18 months before the citation . Mine
Superintendent Goins reportedly stated that he did not know how
the area had been left unsupported:
Dingess concluded that the violation was of hiqh qravity and
"siqnificant and substantial" particularly because of "draw rock"
within the cited area. He opined that this could contribute to a
roof fall onto persons working not only on the off side but also
extending across the beltline . Dinqess also concluded that the
violation was the result of the operator's "unwarr~table
failure" because the citation had existed for such a long period
and involved such a large unsupported area. Superintendent Goins
acknowledged that he had traveled over the cited area the
previous two years but that he had never previously noticed the
absence of roof support . He testified that the mine height in
the area is only 45 inches and it is difficult to see any missing
bolts as you are crawling in such low coal.
In particular , because of the large area of unsupported
roof in an area of "draw rock" and the likelihood of a roof
fall affecting both the tight side and the wide side of the
belt entry, I conclude that the violation was indeed "significant

794

and substantial" and of high gravity . In addition, because
of the extensive area of exposure and the fact that it existed
for such a long period of time, i.e., approximately two years,
I conclude that the violation was the result of high operator
negligence and "unwarrantable failure." In reaching my conclusions herein I have also considered the arguments by
Respondent that the cited area was not as large as alleged.
However, even assuming these allegations were correct, it would
not affect the findings herein . Under the circumstances the
order is affirmed as issued.
Act,

Considering all of the criteria under Section 110(1) of the
I find that the following civil penalties are appropriate:
Order No. 3829635
Order No. 3829637
Citation No. 4043391

$2,000
$1,500
$ 500

ORDER.
Order Nps. 3829635 and 3829637 are affirmed and R B coal
Company Inc. · is directed to pay civil penalties of $2,000 and
$1,500 for the violations charged in those orders, respectively
within 30 days of the date of this decision. Order No. 4043391
is hereby modified to a citation under Section 104(a) of the Act
and R B Coal Company, Inc. is directed to pay a civil penalty of
$500 for the violation charqed therein wi in 30 days of the date
of this decision.
·

Gary
Adm in

w Judqe

703-7
Distribution:
Donna E. Sonner, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)

Mr. Darrell Cohelia, RB Coal Company, Inc., BC 61,
Box 610, Pathfork, KY 40863 (Certified Mail)
/lh

79 5

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

APR 'i 2 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSH.A),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 93-15
A. C. No. 36-07270-03526

v.
L & J Energy Company
L & J ENERGY COMPANY, INC . ,
Respondent
DETERMINATION UPON REMAND

Before:

Judge Weisberger

On April 5, 1994, the Commission issued an order directing
me as follows: "· . . to determine whether the stipulation in
question is complete and correctly represents the agreement of
the parties. Upon so doing, the judge may reconsider his
decision, if that should be necessary."
It is the assertion of L & J Energy Company, Inc. (L&J) that
the stipulation of record (Tr. 2-4, August 24, 1993) does not
reflect the parties' agreement, which inter alia, provides that I
would utilize the fact testimony from witnesses, other than Wu
and Scovazzo, who observed the condition of the highwall. To the
best of my recollection, L&J is correct in its assertion.
However, there is no need to reconsider my decision, inasmuch as
the decision takes cognizance of, and discusses, the testimony of
witness other than Scovazzo and Wu, who had observed the
highwall.

~L~~

Administrative Law Judge
Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of
Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)
Laurance B. Seaman, Esq., Gates & Seaman, North Front Street,
P.O. Box 846, Clearfield, PA 16830 (Certified Mail)
Henry Chajet, Esq., Jackson & Kelly, 2401 Pennsylvania Avenue,
N.W., Suite 400, Washington, DC 20037 (Certified Mail)
/efw
796

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

APR 1 2 1i9-4

. CIVIL PENALTY PROCEEDING
:

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
DOSS FORK COAL COMPANY, INC . ,
Respondent

:

Docket No. WEVA 93-129
A. C. No. 46-07751-03542

:

Seminole Mine

.

DECIS!ON
Appearances:

Pamela Silverman, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
David Hardy, Esq., Jackson and Kelly, Charleston,
West Virginia, for Respondent.

Before:

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801,
~ ~., the "Act," charging Doss Fork Coal Company, Inc.
(Doss Fork) with eight violations of mandatory standards and
seeking civil penalties of $19,800 for those violations. The
general issue is whether Doss Fork violated the cited standards
and, if so, what is the appropriate civil penalty to be assessed.
Additional specific issues are addressed as noted.
Order No. 2723744
This order, issued pursuant to section 104(d)(l) of the
Act, 1 alleges a violation of the mine operator's approved roof
Section l04(d)(l) provides as follows:
"If, upon any inspection of a coal or other ' mine,
an authorized representative of the Secretary finds that
there has been a violation of any mandatory heal~ 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 significant and
substantially contribute to the cause and effect of a coal
or other mien 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
79 7

control plan under the provisions of 30 C. F.R.
charges as follows:

§

75.220 and

The approved roof control plan No . 4-RC-9-89-12051-5
dated July 22 and 23, 1992 page No. 4 Statement No. 3
was not being followed on 2 left section in that a cut
had been mined No. 5 face off No. 6 entry mains and
only 3 roof bolts had been installed on the left side
of the place . Spot bolting was being performed outby
and clean up with a scoop. The roof bolter and scoop
had traveled through said area . The plan requires
that such area be permanent (sic] supported or a minimum of one (1) row of temporary support on 4-foot
centers be installed in such area , before such work
or travel .
The Secretary maintains that the cited conditions constituted a violation of paragraph 3 page 4 of the approved roof
control plan (Gov't Exhibit No. 22) which provides that
"openings that create an intersection shall be permanently
supported or a minimum of one row of temporary supports shall
be installed on not more than four-foot centers across the
opening before any other work or travel in the intersection."
Roof control specialist Herbert McKinney of the Mine
Safety and Health Administration (MSHA) issued the order at
bar on the morning of October 21, 1992. He was accompanied
during this inspection by Mine Superintendent John Dillon
and West Virginia mine inspector Clyde Sowder. McKinney
described the cited intersection on the 2 left section where
a cut had been mined as the No. 5 face off the No. 6 entry.
McKinney testified that the cut was approximately 18 feet wide
and had neither temporary nor permanent support {Gov't Exhibit
No. 23) . According to McKinney, either four posts on not more

fn. l (continued}
standards, he shall include such finding in any citation
given to the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine within
90 days after the issuance of such ci tati on, an autho·r ized
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 ~rom,a nd to be prohibited
from entering, such area until an authorized representative
of the Secretary determines that such violation has been abated."

798

than four-foot spacing across the mouth of the intersection
or four rows of roof bolts were needed to provide the support
required by the roof control plan.
McKinney also found the violation to be "significant
and substantial . " A violation is properly designated as
•significant and substantial" if, based on the particular
tacts 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
Diyision. National Gypsum Co., 3 FMSHRC 822, 825 (1981).
In Mathies Coal co., 6 FMSHRC 1,3-4 (1984), the Commission
explained:
In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary 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.
See also Austin Power Co . v. Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(1987) (approving Mathies criteria).
The third element of the Mathies formula requires that
the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an
injury. (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (1984),
and also that in the likelihood of injury be evaluated in terms
of continued normal mining operations (U.S. Steel Mining co.,
~' 6 FMSHRC 1473, 1574 (1984); see also Halfway, Inc.,
8 FMSHRC 8, 12 (1986) and Southern Oil Coal Co., 13 FMSHRC 912,
916-17 (1991).
According to McKinney this unsupported roof was a
particular hazard because a roof fall in the cut would tend
to break through into, and expose miners in the entry. The
roof would be "swinging" and there would be nothing to cut
off a roof fall in the No. 5 face from the entry. According
to McKinney, such a roof fall was reasonably likely to occur
because of "cloud rock" present in the roof. Cloud rock is a
rock formation without a grain and, according to McKinney,
deteriorates and separates when wet. The record further shows
that the roof in this intersection had been "potting out"
between roof bolts in the entry thereby creating a cavity.
McKinney concluded that, under the circumstances, crushing
injuries resulting in permanent disability would likely result.

799

Five miners, including the miner operator, the miner operator
helper, two shuttle car operators,· a foreman and an electrician,
would be expected in the cited area. Indeed, a scoop and roof
bolter were seen passing through the intersection.
McKinney also concluded that the violation was the result
of high negligence and "unwarrantable failure" to comply with
the roof control plan. "Unwarrantable failure" has been defined
as conduct that is "not justifiable" or is "inexcusable . " It
is aggravated conduct by a mine operator constituting more
than ordinary negligence. Youghiogheny and Ohio coal Company,
9 FMSHRC 2007 (1987); Emery Mining Corp ., 9 FMSHRC 1997 (1987).
In this regard McKinney testified that he discussed this violation with Section Foreman John Webb in the vicinity of the
intersection before he issued the order at bar. According to
McKinney, Webb told him that he (Webb) knew he was not supposed
to be working inby the cited intersection.
Clyde Sowder, a West Virginia state roof control inspector,
corroborated McKinney's testimony in essential respects. Sowder
cited the same condition for a violation under the state law of
the same provision of the roof control plan (Gov't Exhibit
No. 24). 2 Sowder observed the opening at the No. 5 face and . he
too found no roof support except in the main entry. Sowder noted
that the roof in the area was loose, broken and drummy and concluded that there was a good chance of a roof fall in the cut
extending into the entry. Sowder opined that it was highly
likely for injuries to occur as a result of the condition and
that such injuries would be permanently disabling . Sowder also
observed, while he was in the vicinity of this cut, that a
shuttle car passed through the intersection.
Sowder also was present when MSHA Inspector McKinney asked
Foreman Webb if he knew of the existence of the condition and if
he knew that such condition was a violation by tramming the roof
bolter through the intersection. Sowder heard Webb's response
admitting the existence of the condition but stating that it had
"slipped his mind." While Webb did admit in Sowder's presence
that he was aware of the violation, Sowder charged the violation
as an "unknowing" violation under West Virginia law because he
believed that Foreman Webb had "just forgot about the violation . "

2

The notice of violation {Gov't Exhibit No . 24)
issued by State Inspector Sowder on October 21, 1992, for
the same conditions cited by Inspector McKinney in the
order at bar and for violation of the same provisions of
the . r~of control plan, was not challenged and therefore
became final under West Virginia law.

800

Within the above framework of credible evidence, I find
that indeed the violation was committed as charged and that
the violation was "significant and substantial."
I further
find that the violation was the result of the operator's
"unwarrantable failure" to comply with the law. It is not
mere inattention or inadvertence when the foreman intentionally removes a bolting crew before their job is completed.
Here Foreman Webb acknowledged that only 15 minutes before the
inspection party reached the cited intersection, he reassigned
the crew which was bolting the intersection to another job.
For the same reasons, I also find that the violation was the
result of high operator negligence.
In reaching these conclusions· I have not disregarded
Doss Fork's evidence that, contrary to the testimony of
McKinney and Sowder, there were actually 11 roof bolts in
the intersection of the No . 5 face inby the entry (Operator's
Exhibit No. 2). This evidence comes from Foreman Webb and roof
bolter operator James Wright who both testified that there were
actually 11 bolts provided as permanent support in the cited
intersection. I can, however, give this evidence but little
weight in light of the credible confirming testimony of both
Federal Inspector McKinney and State Inspector Sowder. The
failure of Doss Fork to have challenged the state notice of
violation for the precise condition charged in the order here
at issue adds credence to the testimony of the inspectors.
Under the circumstances and considering all relevant
criteria under Section llO(i) of the Act I find that the
penalty proposed by the Secretary of $3,000 is appropriate
for the violation charged in Order No. 2723744.
Order No . 3554286
This order, also issued pursuant to Section 104(d)(l) of
the Act, alleges a "significant and substantial" violation of
the mandatory standard at 30 c.F.R. § 75.400 and charges as
follows:
Loose coal and coal dust was allowed to accumulate
on the 002-0 section in the No. 1 and No. 2 entries
starting at the face and extended outby a distance
of approximately seven cross-cut lengths also in the
No. 3, No. 4, No. 5 entries starting at the face and
extended outby to the section dumping point. Area
affected measured approximately 600 feet in No. 1 and
No. 5 entries and 200 feet in No. 3, No. 4 and No. 5
entries . The accumulation ranged in depth of up to
30 inches.

801

The cited standard provides that "coal dust, including
float coal dust deposited on rock-dusted surfaces, loose
coal, and combustible materials, shall be cleaned up and not
permitted to accumulate in active workings , or on electric
equipment therein."
MSHA Inspector James Graham was performing an inspection
of the Seminole Mine on october 21, 1992, accompanied in part
by Foreman Carl Dalton. During the course of this inspection
Graham purportedly observed loose coal and coal dust in a
number of areas, including the No. 1 and 2 entries outby
seven cross-cuts for approximately 600 feet and in the No . 3,
4 and 5 entries outby approximately 200 feet to the section
dumping point. According to Graham there was also loose coal
in the crosscuts and at the feeder, in the No. 6 crosscut outby
the face of No. 1 entry and in the fifth crosscut in particular .
The accumulations at the feeder where coal is dumped onto the
conveyor belt were "pretty extensive" and partly on top of the
control box .
Graham further testified that he measured these accumulations at three locations with a tape measure, including a
deposit of 30'- inches near the coal feeder and at areas depicted
in dark green on the mine map in evidence (Gov't Exhibit No. 3) .
Graham also found the coal in the crosscuts to be approximately
30 inches deep based on his observation that it was near the
36 to 40-inch-high roof. Graham testified that he physically
handled the material and dug into it to determine that it was in
fact coal dust and loose coal. While acknowledging that there
was some rock in the material he concluded that there was more
coal than rock. The accumulations in the Nos. 1, 2 and 3 entries
were primarily dry, whereas the remaining accumulations were
indeed wet.
Graham opined that the violation was "significant and
substantial" due to the ignition sources from electrical equipment and trailing cables in the section . In particular, he
observed a roof bolter and personnel carrier operating that day.
In addition, while coal was not then being mined, electric
trailing cables were lying along the rib line of an entry.
Graham identified electrical heat from the roof bolter machine
generated from defective electrical motors, potential explosion
of batteries and the burning of hydraulic oil as potential
ignition sources. Graham also identified the electric motor and
hydraulic fluid as potential ignition sources at the feeder and
friction from defective bearings as a potential ignition source
at tbe tail pulley.
Based on the above observations, Graham concluded that a
fire or smoke resulting from ignition of the accumulations would
reasonably likely result in smoke inhalation and burn injuries,

802

which would result in lost work days or restricted duty. He
noted that six persons were working on the section and could be
affected by such fire or smoke.
on cross-examination Graham acknowledged that, while
there was no production on october 21, when he issued the
instant order, the equipment was energized and the roof bolter
and battery powered personnel carrier were in operation. He
further acknowledged that the ventilation was above the required
amount and that no methane was found. In addition, Graham
inspected the Joy shuttle car and found no ignition sources,
violations or hazards in its trailing cable.
Inspector Graham also opined that the violation was the
result of high negligence and "unwarrantable failure." According
To Graham, the area of accumulations was extensive and, due to
the amount, was "very obvious." He also relied upon statements
by Section Foreman Carl Dalton that he knew the section needed
cleaning and that it had been in this condition for at least
five days. According to Graham, Dalton advised him that he
intended to clean up the accumulations and complete rock dusting
but wanted .to complete roof bolting first . The evidence that
accumulations had been "packed" into the crosscut and that there
had been a previous citation for three violations of accumulations on June 3, 1992, were also considered.
MSHA Inspector Herbert McKinney also testified that during
his inspections on October 15, 1992, of the same drainway section
cited for the accumulations herein, he observed accumulations of
loose coal and coal dust three crosscuts outby the feeder, inby
the feeder along the roadways and in side cuts used for storage
of supplies. Apparently he was told that this was "dirty coal"
and was being stored as a result of cleaning the bottom .
According to McKinney he did not cite these a lleged accumulations
because he did not carry a dust sample k i t , but he purportedly
advised Foreman Dalton of the need for cleanup and rock dusting.
Section Foreman Carl Dalton testified that on October 21,
1992, he was in charge of the drainway section at issue and
noted that it was generally a wet section since it provided
drainage for the entire mine. According to Dalton, Mine
Foreman Dillon told him to do nothing else but spot bolt the
section so, accordingly, he did no cleanup or rock dusting
work following McKinney's visit on October 15, 1992 . He
•aintains that his crew was split up from october 15 through
october 19 performing spot bolting work as a result of a violation issued by McKinney on october 15, 1992. He maintains
that he could not "take a chance" on doing anything else in
light of the "high disregard" violation issued by McKinney on
october 15. He recalled that McKinney returned on october 19
to check on the spot bolting activity and told him that he had

803

"a bit of spillage . " Dalton maintains that he told McKinney
he would clean up the spillage as soon as he finished the
required bolting.
Dalton also disagreed that the accumulations were as
extensive as cited by Inspector Graham while admitting that
•you are going to have coal" and it would have to be mud and
rock mixed in. He also claimed that the material in the
entries was wet . Indeed, he maintained that you could not
have burned it in a "blast furnace." He further maintained
that, while it did need cleaning at the feeder and there
was some spillage at that location, there was not a serious
accumulation . Dalton also testified that there were no
electrical cables in the cited area except for the roof
bolter cable which was "brand new . "
·
According to Mine Operator John Dillon, the cited material
was not deep and was not even "dirty coal." He maintains that
it was nothing more than rock and mud and created no hazard
because the only potential ignition source was the pinning
machine which had a new trailing cable. He did admit, however,
that in the course of mining, a scoop, two shuttle cars, a continuous miner and roof bolter would operate in the area . He
concluded that the cited material which consisted of pure rock
and mud could not burn with a "blow torch . "
Giving due credit to the expertise and credible observations of MSHA's witnesses and indeed of corroborating
testimony by Foreman Dalton himself, I conclude that indeed
coal accumulations did in fact exist in sufficient quantities
to support the order at bar. In addition, I find that the
cited accumulations constituted a "significant and substantial"
violation. In reaching this conclusion, I again credit the
disinterested testimony of Inspector Graham of the existence
of loose coal and coal dust, at least some of which was dry
and in proximity to potential ignition sources.
I also agree with the Secretary that the violation was
the result of high negligence and "unwarrantable failure."
Clearly, mine management was informed by Inspector McKinney
several days prior to the issuance of the instant order of
the existence of at least some of the cited accumulations. I
credit McKinney's testimony that management was also then told
that it would be necessary to clean those up. The failure of
aanagement to clean up those accumulations for as long as
five days after being so warned indeed shows such a reckless
disregard as to constitute high negligence and "unwarrantable
failure. "
While the operator's witnesses maintain that they were
under a directive from Inspector McKinney to perform only roof
bolting following his october 15, 1992 citation for violating

804

its roof control plan, I fi~d the attempted defense to
Firstly, Inspector McKinney denies the
allegation. Moreover, it is unreasonable to expect that
an inspector would advise a mine operator to ignQre other
hazardous conditions while abating· an unsupported roof
citation. It is clear that the operator had another work
crew available in another section of the mine which could
have been utilized to clean up the accumulations within
the five day period following the rebolting by the split
crew assigned to abate McKinney's October 15 violation.
Even if the operator understood it was to give priority to
supporting the roof there was ample time over the five days
to commence clean up as roof support work progressed.

be disingenuous.

Under the circumstances, and considering the criteria
under section llO(i) of the Act, I find that a civil penalty
of $2,000 is appropriate for the violation charged in the
order at bar .
Order No. 3554287
Order No . 3554287 7 also issued pursuant to section 104(d)(l)
of the Act, alleges a "significant and substantial" violation of
the standard . at 30 c.F.R. § 75.403 and charges as follows:
Rock dusting was not adequate i,n the No. 1, No. 2,
No. 3 and No. 4 entries on the 002-0 section starting
at the face and extended outby a distance of approximately 600 feet. Spot samples were collected in the
area to substantiate this action.
The cited standard provides as follows:
Where rock dust is required to be applied, it shall
be distributed upon the top, floor, and sides of
all underground areas of a coal mine and maintained
in such quantities that the incombustible content of
the combined coal dust, rock dust, and other dust
shall be not less than 65 per centum, but the incombustible content in the return air courses shall be
no less than 80 per centum. Where methane is
present in any ventilating current, the per centum
of incombustible· content of such combined dusts
shall be increased 1.0 and 0.4 per centum for each
0.1 per centwn of methane where 65 and 80 per centum,
respectively, of incombustibles are required.
According to Inspector Graham, during the course of his
OCtober 21, 1992 inspection, he ob~erved in the No. l and
2 entries, extending from the face to 100 feet outby, that
the entry was black in color. In addition, outby this area
the mine floor continued to be black and only spotty with

805

previous rock dusting. This condition extended for a linear
distance of 600 feet in the No. l and 2 entries. In addition,
Graham observed in the No. 3 and 4 entries from the face outby,
that although there was evidence of prior rock dusting on the
roof and ribs, the mine floor was black. Samples from the rock
dusted areas (Gov't Exhibit No. 7) showed an incombustible
content of 21 percent, 12 percent and 12 percent respectively
for the samples taken.
According to Graham it was reasonably likely for a fire
to result from the combination of accumulations, lack of rock
dust and ignition sources from electrical equipment . He
further concluded that injuries would be reasonably likely
from smoke inhalation or burns.
Graham concluded, finally, that the violation was the
result of high operator negligence and "unwarrantable failure."
According to Graham, Carl Dalton, the section foreman , told
him that the section had been in this condition for five days
and that he knew it needed to be rock dusted. Ignition sources
described by Graham in reference to the preceding order were,
according to Graham, equally applicable to the instant situation.
As previously noted , Inspector Herbert McKinney had also
been on the section on October 15 and October 19, 1992, i n
connection with a roof inspection. McKinney testified that he
observed the inadequate rock dusting in areas of the section
during these inspections. Indeed, Section Foreman John Dillon
acknowledged at hearing his agreement with McKinney that on
October 19 the area did in fact need additional cleaning and
rock dusting, particularly around the face. According to Dillon,
however, he intended to first complete roof bolting operations
to abate the violation cited by McKinney on October 15 before
rock dusting on October 21, 199 2 . I have previously rejected
this defense and for the same reasons again reject it. Within
the above framework of evidence, i~ is indeed clear that the
violation existed as charged and that the violation was "significant and substantial" and of high gravity . See Mathies coal
~, supra .

It is also apparent that the violation herein was the
result of high negligence ~d "unwarrantable failure."
Two days before the condition was cited by Inspector Graham,
McKinney observed inadequate rock dusting in the same section
and informed Dalton of the need to clean and rock dust the
section . In addition, the fact that Dalton himself acknowledged
on october 19, that the area needed additional cleaning and
rock dusting shows knowledge of the violative condition two days
prior to its citation . Failure to even begin cleaning up and

806

rock dusting the cited area under the circumstances constitutes
high negligence and "unwarrantable failure." Bmerv Mining Corp.,
supra .
In reaching this conclusion, I have not disregarded the
assertions by John Dillon, Doss Fork's Superintendent at the
time, that he was in essence forbidden by McKinney's order to
perform any cleanup or rock dusting operations until completion
of roof bolting . As previously noted, however , I do not find
these contentions credible.
Considering the above evidence and the criteria under
Section llO(i) of the Act, I find that a civil penalty of
$2,000 is appropriate .
Order No . 3554291
Order No. 3554291, also issued pursuant to section 104(d)(l)
of the Act, alleges a significant and substantial violation of
the standard at 30 C.F.R . § 75 . 202(a) and charges as follows :
The mine roof in the right return aircourse is
not adequately supported at several spot locations
starting ·at 4 cross-cuts inby the right return
portal and extended [sic] inby this point to
within approximately 6 cross-9uts of the face
on the 001-0 section, a distance of approximately
1,600 feet . There were several roof bolts at each
location that were damaged to a point that they no
longer provided adequate support for the mine roof.
The cited standard provides that "the roof, face and ribs
of areas where persons work or travel shall be supported or
otherwise controlled to protect persons from hazards relating
to falls of the roof, face or ribs and coal and rock bursts."
According to MSHA Inspector James Graham he was conducting
an inspection of the cited area on October 26, 1992, accompanied
by his supervisor Clyde Ratcliff, Within this area Graham found
what he described as large sections of unsupported roof. More
specifically , in one area, four crosscuts inby the surface
portal , there were 16 damaged roof bolts. The rock 'had spalled
away from the bolt heads, the bolts were hanging down exposed,
and a portion of rock 5 feet long and 2 feet thick had fallen
out. There were areas where rock was hanging from the roof ,
cavities in the roof and rock lying on the mine floor. one of
these bolts had 30 inches of the six foot bolt exposed . A second
area Graham described was 50 feet inby survey station No . 305
where five bolts in a row were damaged. These bolts were bent
and hanging down with approximately 18 inches exposed.

807

Graham noted that the roof bolts were required to have
bearing plates in contact with the mine roof to prevent
aloughage. The hazard under the circumstances, according to
Graham, was from roof falls exposing anyone traversing in the
area to crushing injuries. Graham observed that such injuries
would be reasonably likely since the area must be traveled at
seven day intervals for inspection and other employees would
enter the area for maintenance, to pump water and to maintain
ventilation.
Inspector Graham also concluded that the violation was
the result of high negligence and "unwarrantable failure."
According to Graham, the conditions were "very obvious." In
addition, Foreman Carl Dalton reportedly told Graham that he
did the weekly exam himself and that he knew of the unsupported
roof. Dalton told Graham that he did not have enough men,
however, to perform the "outby work" and that he was disgusted
and ready to quit the job because of that.
MSHA Supervisory Inspector Clyde Ratcliff accompanied
Inspector Graham during his examination of the right return
air course and observed the same conditions and corroborated
the testimony of Graham. There was roof material on the floor
and roof bolt.s were not secured to the roof. They were jutting
out with roof material spalled away. Ratcliff testified that
he did not count the damaged roof since there were too many to
count. Ratcliff confirmed that Foreman Dalton stated that he
was aware of these adverse roof conditions but that he did not
have enough men to correct these conditions and continue with
production at the same time.
Ratcliff further opined that the subject Pocahontas No. 3
coal seam is composed of a heavy unconsolidated material. He
considered a roof fall likely based upon the history of roof
falls in this seam and his observations of the roof material .
He concluded that injuries were reasonably likely under the
circumstances.
Within the above framework of evidence, it is clear
that the violation is proven as charged, that the violation
was "significant and substantial" and that it was the result
of high negligence and "unwarrantable failure."
In reaching these conclusions I have not disregarded the
testimony of Section Foreman Carl Dalton who claims that he
told Graham and Ratcliff that he in fact said he did not know
of the unsupported roof in the right return entry. The cross
corroborating testimony of both Ratcliff and Graham regarding
the admission made by Dalton that he was aware of the roof
conditions is however the more credible.

808

I have also evaluated Dalton's testimony that it was not
unusual to see sloughage from the bolts in the areas cited and
that the condition did not present.a hazard since a resin bolt
does not need a bearing plate for anchorage. However, Dalton
misconstrues the nature of the hazard described by Graham and
Ratcliff . Graham and Ratcliff were particularly concerned by
the fact that roof material had sloughed and was continuing to
slough from the bearing plates thereby creating a hazard of
falling rock from such sloughage.
Under the circumstances and considering the criteria under
Section llO(i) of the Act, I find that a civil penalty of $2,300
is appropriate for the violation.
Order No. 3554292
Order No . 3554292, issued pursuant to Section 104(d)(l) of
the Act, alleges a "significant and substantial" violation of
the standard at 30 c.F . R. § 75.400 and charges as follows:
Loose coal and coal dust was stored at spot
locations in the left and right cross-cuts in the
right re~urn air course starting 1 cross-cut inby
survey station No . 375 and extended inby this
point to within ten crosscuts of the face on the
002-0 section, a distance of approximately 1,200 feet.
The loose coal and coal dust ranged in depth of up to
26 inches .
Inspector Graham testified that during the course of his
continuing inspection on October 26, 1992, he found accumulations of loose coal pushed into the crosscuts (areas colored
purple on Gov't Exhibit No . 3). The accumulations pushed into
these ten crosscuts were up to 26 inches deep. Graham handled
and scrutinized the materials and observed that indeed it was
loose coal mixed with pieces of rock . Graham described the
hazard from fire that could result from such accumulations as
a result of ignition sources from a mantrip operating in the
return. Graham concluded that injuries were reasonably likely
based on the amount of accumulations and the type of electrical
equipment operating, i.e., a scoop tractor and a mantrip, for a
fire causing smoke to result.
Graham also concluded that the violation was the result
of high negligence and "unwarrantable failure" because of what
he considered to be the obvious nature of the condition . Section
Foreman Dalton purportedly told Graham that the accumulations
were "dirty coal" and that he cleans it out when he gets a
chance. According to Graham, Dalton advised him that he knew it
was dirty coal.

809

MSHA Supervisor Ratcliff accompanied Graham during this
phase of his investigation and he also recalled piles of coal
to the left and right in the crosscuts in the cited area.
While he also observed aome rock in the material on the left,
he did not see any rock in the material on the right. Ratcliff
also observed that some areas in the return were in fact wet .
Ratcliff also found a hazard from explosion or fire and concluded
that it would be reasonably likely to have injuries from smoke
inhalation causing death.
Dalton conceded that accumulations did exist in the
cited areas, but because they were mud and rock, claims the
conditions were not hazardous. He denied, however, that there
were any ignition sources in the area, i . e., no power lines and
no power equi pment, and that the area was well rock dusted . I
conclude, however, from the credible and disinterested testimony
of Graham and Ratcliff that the material did in fact constitute
violative accumulations. I do not find, however, that the
secretary has sustained his burden of proving that the violation
was "significant substantial" or the result of "unwarrantable
failure." There is insufficient evidence of the combustibility
of this admitted mix of rock, mud and coal and of the likelihood
of an ignition source to support a significant ·and substantial
finding. The testimony of Dalton that the material had only
recently been pushed into the crosscuts is also undisputed. I
give weight to his apparent good faith belief that the material
was not a violative "accumulation." Accordingly, I do not find
the condition to have been the result of "unwa.r rantable failure "
or high negligence. The order is accordingly modified to a
citation under section 104(a) of the Act.
Considering the criteria under Section llO(i) of the Act,
I find that a penalty of $500 is appropriate for this violation.
Order No· 3554293
Order No. 3554293, also issued pursuant to Section 104(d)(l)
of the Act, alleges a "significant and substantial" violation of
the standard at 30 C.F.R. § 75 . 202(a) and charges as follows :
The mine roof in the left return air course
is not adequately supported at spot locations
starting four crosscuts outby survey station
No . 65 and extended outby this point to within
three cross-cuts of the surface portal. There
were several roof bolts at each location that
were damaqed to a point they no lonqer adequately
supported the roof.

810

As previously noted, 30 C.F.R. § 75.202(a) provides
that "the roof, face and ribs of areas where persons work
or travel shall be supported or otherwise controlled to
protect persons from hazards related to falls of the roof,
face or ribs and coal or rock bursts."

During his inspection on October 26, 1992, Inspector
Graham found in the left return air course several places
where roof bolts were hanging down and exposing 24 inches
between the roof and the plate. Other areas had groups of
damaged boltso He recalled, in particular, three areas,
one of which was four crosscuts outby survey station No. 65,
consisting of a group of six consecutive defective bolts.
In addition, at a location six crosscuts outby survey station
No. 65, there was a group of ten adjacent bolts where rock had
fallen away. Finally, he remembered a group of twelve bolts
that were "defective" at a location 11 crosscuts outby survey
station No. 65. Graham testified that, in addition, there
were many bolts damaged throughout the area with cracked and
loose rock in the roof with much of the loose roof left hanging.
Graham testified the roof fall hazard in this area
would cause crushing and fatal injuries. The weekly examiner,
State and Federal inspectors, and anyone working on roof
support or removing roof fall material would be exposed to
the hazard. Graham opined that it"was reasonably likely for
one person to be so injured because of the extensive area
involved and deteriorating roof condition.
Graham further opined that the violation was the result
of high negligence and "unwarrantable failure" based upon
the extensive area involved. He aiso concluded, based on the
state of deterioration that the conditions had existed for at
least several weeks. Finally, Graham noted that the examination
reported for the area was dated October 21, five days before his
inspection.
Graham's testimony is corroborated in essential respects
by the testimony of Graham's supervisor, Clyde Ratcliff.
Ratcliff accompanied Graham a.pd was "greatly surprised" by the
amount of fallen material in the left return air course and the
number of protruding roof bolts. According to Ratcliff, there
were large sized rocks, baseball size up to the size of a pickup
truck bed on the floor consistently over the entire area. In
addition, some roof bolts were broken and others showed spalling
around the plates. He also· noted that the cavities where the
roof had fallen out were extremely high.

811

Ratcliff opined that falling material would cause severe
injuries to a miner or inspectors and that it was highly likely
for serious injuries to result. He also opined that the cited
conditions had existed for "weeks" based on the extensive nature
of the problem.
While the evidence clearly supports a finding that the
violation was "significant and substa..ntial," I cannot find
that the Secretary has sustained her burden of proving that
the violation was the result of high negligence or "unwarrantable failure." Section Foreman Carl Dalton testified that he
had performed the weekly examination in the return air courses
on October 17, 1992, and at that time did not observe any
hazardous roof conditions. It is further acknowledged that the
mine roof in this area of the mine"could deteriorate rapidly.
Under the circumstances I do not find that the Secretary has
sustained her burden of proving that the deteriorated conditions
found on October 26 had existed at the time of the previous
weekly examination and that accordingly Doss Fork officials
were therefore on notice of the existence of such conditions.
Accordingly, I cannot find that the violation was the result
of high negligence or "unwarrantable failure." The order is
therefore modified to a citation under Section 104(a) of the Act.
Considering the criteria under section 110(i) of the Act,
I find that a penalty of $500 is appropriate.
Order No. 3554294
Order No. 3554294 alleges a violation on October 26,
1992, of the standard at 30 C.F.R. § 75.305. However, since
no mandatory standard identified as 30 C.F.R. § 75.305 existed
at the time the instant order was issued on October 26, 1992, .
there could not . have been any violation of the standard cited.
The provisions of 30 C.F.R. § 75.305 were no longer effective
after August 15, 1992. See 57 F.R. 20868 and 20914, May 15,
1992. Under the circumstances, the order must be vacated.
Citation No. 3981551
Citation No. 3981551 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. § 75.202(b) and charges as
follows:
A roof bolt machine operator was observed traveling
inby permanent roof supports in the face of the No. 3
cross-cut on the 001-0 section. The roof bolting
machine had been moved into the face of the No. 3
cross-cut and the machine operator traveled inby
permanent roof supports to position a metal roof
support strap before the T.R.S. had been installed

812

against the roof . This citation is the factor in
the issuance of Imminent Danger Order No. 3981550
therefore no abatement time was set.
30 c.F.R. § 75.202(b) provides that "no person shall work
or travel under unsupported roof unless in accordance with this
subpart."
MSHA Inspector James Graham testified that he observed
the roof bolter move into the crosscut and the miner on the
right side of the roof bolter proceed under unsupported roof,
reach for the roof support strap and pull it over the roof
bolting machine. Under the circumstances, roof bolter operator
James Wright , was exposed to unsupported roof. Inspector Trainee
Roy Walls also observed that Wright had his entire body beyond
the roof strap. In particular, Walls recalled that Wright's head
was inby the last bolt by six inches. Graham opined that because
of the dangerous nature of the roof in this mine, which subjected
it to falls at any time ; it was highly likely for injuries from
crushing to result in death.
Graham also concluded that the violation was the result
of high negllgence. According to Graham, Superintendent Dillon
told him enroute to the section th~t the straps could not safely
be installed and that it was causing the workers to go inby
permanent supports . In addition, the roof bolter operator who
was observed proceeding beneath unsupported roof purportedly
told Inspector Graham that this procedure had been necessary
ever since they had begun using straps .
MSHA Supervisor Ratcliff testified that on November 16,
1992, he received a telephone call from Mine Superintendent
John Dillon about the problems the installation of the metal
straps was causing at Doss Fork. According to Ratcliff, Dillon
complained about the necessity of miners to go inby the last row
of permanent support i n order to install the straps.
James Wright admitted that he had to reach inby the last
row of bolts in order to set up the roof straps and that he had
been performing this procedure for ·two or three weeks prior to
the issuance of the instant citation .
Within the framework of this evidence, it is clear that
the violation is proven as charged and that the violation was
"siqnificant and substantial" and the result of high operator
negligence . In reaching these conclusions, I have not disregarded the testimony of Superintendent Dillon that he did not
in fact discuss with Inspector Graham or Ratcliff anything about
employees going inby permanent roof support to set the straps.
However, in light of the clear recollection and the disinterested
testimony of both Graham and Ratcliff, I can only conclude that

813

Mr. Dillon's recollection was deficient . Citation No . 3981551
is accordinqly affirmed with its "siqnificant and substantial"
findinqs.
Considerinq the criteria unde~ Section 1lO(i) of the Act,
I find that a civil penalty of $3,000 is appropriate.
ORDBR

Order No. 3554294 is hereby VACATED. Order Nos . 3554292
and 3554293 are hereby modified to citations under section l04(a)
of the Act . Doss Fork coal Company is hereby directed to pay a
civil penalty of $500 each for the violations in those citations
within 30 days of the date of this decision. The remaininq
citation and orders are hereby AFFIRMED and Doss Fork Coal
Company is hereby directed to pay the followinq civil penalties
for the violati ons charqed therein within 30 days of the date of
this decision:
Order No. 2723744

$3,000

Order No. 3554286

$2 , 000

Order No. 3554287

$2,000

Order No. 3554291

$2,300

Citation No . 3981551

$3,000

Distribution :
Pamela S. Silverman, Esq., Office of the Solicitor,

u.s. Department of Labor, 4015 Wilson Blvd., Room 516,

Arlinqton, VA 22203 (Certified Mail)

David J. Hardy, Esq . , Jackson and Kelly, 1600 Laidley Tower,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)
\lh

814

J'BDBRAL JUD SUBTY UD llBAL'l'B UVJ:BW OOJOllSSIOB
OFFICE OF Al»41NISTRATIVE LA~ JIA>GES
2 SKYL INE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 1 3 1994
CIVIL PENALTY PROCEEDING

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

v.
LARRY ADDAIR, EMPLOYED BY
JAMB MINING INCORPORATED,
Respondent

Docket No . VA 93-87
A.C. No. 44-05395-03568-A

.
.

Mine No. 2

.

DECISION APPROVING SETTLEMENT

Before:

Judge Fauver

This case involves a petition for assessment of civil
penalties under § 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et seq. Petitioner has filed a
motion to approve a settlement agreement and to dismiss the case.
I have considered the representations and documentation submitted
and I conclude that the proffered settlement is consistent with
the criteria in § llO(i) of the Act .
ORDER

WHEREFORE IT IS ORDERED that the motion for approval of
settlement is GRANTED and Respondent shall pay the approved
penalties of $400.00 in four monthly installments of $100.00
each beginning May 15, 1994.

ll)~~~

William Fauver
Administrative Law Judge

Distribution:
Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 400, Arlington, VA 22203
(Certified Mail)
Larry Addair, P.O. Box 990, Castlewood, VA
Mail)
/lt

815

24224 (Certified

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

APR 13 1994
CONTEST PROCEEDING

ENERGY WEST MINING COMPANY,
Contestant

v.

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

.

Docket No. WEST 94-22-R ·
Order No. 3587924; 10/4/93
Deer Creek Mine
Mine ID ·42-00121
CIVIL PENALTY PROCEEDING
Docket No. WEST 94-186
A. C. No. 42-00121-03823

v.
Deer Creek · Mine
ENERGY WEST MINING COMPANY,
Respondent
DECIS·ION

Appearances:

Timothy M. Biddle, Esq., Crowell & Moring,
Washington, D.C. for Contestant;
Carl c. Charneski, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia for
Respondent.

Before:

Judge Hodgdon

These cases are before me on a notice of contest filed by
Energy West Mining Company again~t the Secretary of Labor and a
petition for assessment of civil penalty filed by the Secretary
of Labor against Energy West Mining Company pursuant to Sections
105 . and 110 of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. §§ 815 and 820. 1 Energy West contests the issuance of
Order No. 3587924 to it on October 4, 1993 . The Secretary has
proposed a civil penalty for the same violation.
For the reasons
set forth below, the order is vacated.

The civil penalty proceeding was filed subsequent to the
hearing on the contest. Energy West's motion to consolidate the
proceedings is unopposed. Accordingly, the motion to consolidate
is GRANTED and these proceedings are CONS'O LIDATED for disposition
in this decision.

816

The case was heard on January 19, 1994, in Price, Utah.
Mine Safety and Health Administration (MSHA) Inspectors
Donald E. Gibson, Robe.r t Baker, Fred L. Marietti and
Ted E. Farmer testified on behalf of the Secretary.
Mr. Mark Tuttle, Mr. Chad s. Hansen, Mr. Scott Timothy,
Mr. Arch Allred, Mr. Rudy L. Madrigal2 and Mr. Kent L. Norton
testified for Energy West. The parties have also filed post
hearing briefs which I have considered in my disposition of these
cases.
FINDINGS OF FACT

The following facts are undisputed in this matter. On
September 13, 1993, Inspector Gibson conducted respirable dust
sampling on the day shift in the 1st Left Longwall Panel at
Energy West's Deer Creek mine. He placed dust sampling equipment
on five longwall face workers, including the headgate and
tailgate shear operators. At lunch time, Inspector Gibson
discovered that the tailgate shear operator had taken his dust
sampling pump with him to the "dinner hole" and that the
replacement tailgate shear operator did not have any sampling
equipment. He advised the section foreman, Mark Tuttle, that
when the tailgate shear operator is replaced to go to lunch, the
dust sampling equipment should be given to his replacement to
wear.
On September 20 and 21, 1993, Inspector Gibson monitored
procedures at the Deer Creek mine when Energ¥ West took its own
dust samples as required by the Regulations.
During this
sampling, the dust pump was only on the tailgate shear operator,
the "designated occupation" (DO) for dust sampling of Deer
Creek's longwall mechanized mining unit (MMU).
When the tailgate shear operator went to lunch on the 20th,
he gave his dust pump to his replacement, Rudy Madrigal. As this
was occurring, Tuttle asked Inspector Gibson if that was the way

2

Mr. Madrigal's name is spelled Madrijal throughout the
transcript of record, however., the correct spelling is with a "g"
and will appear that way in this decision.
3

Section 70.207(a) of the Regulations, 30 C.F.R. § 70.207(a),
requires that the operator take five valid respirable dust
samples from a designated occupation in each mechanized mining
unit every two months. The samples have to "be collected on
consecutive normal production shifts or normal production shifts
each of which is worked on consecutive days."

817

it was supposed to be done. Gibson responded that he was not
"going to tell them how to collect their sample."
(Tr. 47-48, 175, 219.)
During the sampling on September 20 and 21, the longwall was
operated the way it was always operated. On the "grade" cycle,
when the longwall shear travelled across the face from headgate
to tailgate, both the headgate shear operator and _the tailgate
shear operator walked along with the shear. On the "cut" cycle,
when the shear travelled from tailgate to headgate, only the
headgate operator walked with the shear; the tailgate operator
returned to the headgate to wait in fresh air until the "cut"
cycle was completed. The tailgate operator did this because the
tailgate cutting drum on the shear was not used on the "cut"
cycle, only the headgate drum.
on October 4, 1993, Inspector Gibson returned to the Deer Creek
mine and issued an order of withdrawal, Order No. 3587924,
pursuant to Section 104(d) (1) of the Act, 30 u.s.c. § 814(d) (1) . 4

4

Section 104(d)l) 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
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.

818

The inspector concluded that the company had violated Section
70.207(e) (7) of the Regulations, 30 C.F.R. § 70.207(e) (7),
because:
The required bi-monthly samples collected by the
operator on MMU-052, designated occupation 044 longwall
operator (tailgate side) for the September October 1993
sampling cycle were not collected as required by 30 CFR
70 (emphasis in original].
Cassette No.'s 47830675 and 47831351 collected
September 20-21, 1993, respectively, and submitted to
the Pittsburgh Dust center were not collected in
accordance with MSHA regulations. The sampling device
did not remain at the designated occupation (emphasis
in original]. The tailgate shearer [sic] operator
changed occupations after each longwall cut and did not
leave the device at the shearer (sic] and retain it at
the designated occupation position.
This practice did not reflect accurate monitoring
of the mine atmosphere of the mechanized mining unit
and would render the above mentioned dust samples
invalid.
The op~rator submitted the invalid samples to be
used for the September-October sampling cycle.
Air stream helmets or respirators were not worn by
all miners.
This type of practice has been discussed with
management prior to the sampling on September 20-21,
1993.
(Govt. Ex. 6.) The order was modified that same day to allow the
operator to take new dust samples. (Govt. Ex. 7.) The order was
terminated on October 19, 1993, when the new samples showed the
dust concentration to be within required limits.
(Govt. Ex. 8.)
PURTHER PINDINGS OP PACT
AND

CONCLUSIONS OF LAW

Section 70.207(e) (7) states that:
(e) Unless otherwise directed by the District Manager,
the designated occupation samples shall be taken by
placing the sampling device as follows:

*

*

*

*
819

(7)
Longwall section. On the miner who works nearest
the return air side of the longwall working face or
along the working face on the return side within 48
inches of the corner.
In his Brief for the Secretary of Labor, the Secretary
asserts that Energy West violated this regulation when the DO,
the tailgate shear operator, retained the dust sampling device
and stayed in fresh air. while the longwall shear was cutting coal
on the "cut" cycle.
{Sec. Br. at 5.) He further argues that the
company knew that this was not the proper method to conduct dust
sampling based on prior conversations with Inspectors Gibson,
Baker, Marietti and Farmer, and the dust sampling provisions in
MSHA's Program Policy Manual and Coal Mine Health Inspection
Procedures Handbook.
(Sec. BR. at 4-9.)
In Energy West's Proposed Findings of Fact, Conclusions of
Law, and Brief, the company maintains that it did not violate the
Regulation.
Energy West further avers that it "had no reason to
believe its sampling procedures were improper, particularly since
the mine had used the same procedures for at least 10 longwall
panels and that procedure had never been questioned by any MSHA
inspector before October 4, 1993. 11
(Co. Br. at 18.)

Fact of Violation
I conclude that Energy West did not violate Section
70.207{e) (7) of the Regulations.
I reach this conclusion because
neither the regulation nor MSHA's Program Policy Manual or Coal
Mine Health Inspection Procedures Handbook indicate that Energy
West's method of dust sampling was improper. Further, I find
that until the citation was issued, no MSHA official had advised
Energy West management that MSHA considered that the company's
method of dust sampling was not in accordance with the
Regulations.
Section 70.207(d), 30 C.F.R. § 70.207(d), states that
"(e)ach designated occupation sample shall be taken on a normal
production shift." Section 70.201(b), 30 C.F.R. § 70.201(b),
provides that: "Sampling devices shall be worn or carried
directly to and from the mechanized mining unit or designated
area to be sampled and shall be operated portal to portal.
Sampling devices shall remain operational during the entire shift
or for 8 hours, whichever time is less." Other than these two
sections, the Regulations provide no guidance as to how sampling
is to be conducted.

820

On the other hand, the Program Policy Manual explains:
70.207

*

Bimonthly Sampling; Mechanized Mining Units

*

*

*

(e) If the operator's mining procedures result in the
changing of miners from one occupation to another
during a production shift, the sampling device must
remain on or at the designated occupation (DO). For
example, if an operator alternates the duties of the
continuous miner operator on a one-half shift basis
between the continuous miner operator and helper, the
dust sampler shall be worn for one-half of a shift by
the continuous miner operator and the other one-half of
a shift by the helper, while each is operating the
continuous mining machine, or the sampler shall remain
on the machine as required by this section.
at 8 (Vol . V, Part 70, July 1, 1988). (Govt. Ex. 2.) In
addition, the following guidance to MSHA inspectors conducting
dust sampling is. provided by the Coal Mine Health Inspection
Procedures Handbook 1.1 (February 15, 1989) concerning MMU's:
"When sampling the DO, the sampling device shall remain in the
environment of the DO rather than with the individual miner,
even when miners change positions or alternate duties during
the shift." (Emphasis in original) (Govt. Ex. 3.)
It is apparent from reading these two sections that Energy
West was not put on notice that they were not performing their
dust sampling properly. 5 The Program Policy Manual states that
if a miner changes from one occupation to another, "the sampling
device must remain on or at the designated occupation DO."
However, in this case the tailgate shear operator did not change
occupations by going to the headgate, he was still the tailgate
shear operator and performing those duties, and the .sampling
device remained on or at the DO . Likewise, the tailgate shear
operator did not change positions or alternate duties during the
shift (except when he went to lunch, which is not at issue in
this case), therefore, the sampling device did always remain in
the environment of the DO as indicated in the handbook.
5

For the purposes of this decision, it is not necessary to
determine whether the manual and the handbook have any binding
effect on the company. See, e.a., Utah Power and Light v. MSHA,
12 FMSHRC 965 (May 1990) and King Knob Coal Co . , 3 FMSHRC 1417
(June 1981). Nor is it necessary to determine whether Energy
West had access, or should have had access, to either or both of
these publications .

821

Cf. Consolidation Coal Company v. Secretary of Labor, 9 FMSHRC
1509 (August 1987, Judge Weisberger) (Headgate and tailgate
operators alternated going to the headgate in fresh air and when
operating alone, the headgate operator "may be required, in the
normal course of mining operations, to go to the tail position
and perform duties • . . . ").
In his brief, the Secretary contends that "to have properly
and accurately sampled the tailgate operator (i.e., the DO) on
September 20, the sampling device would have had to have remained
'in the environment of the MMU, at the [shear] machine.'" (Sec.
Br. at 6.) Although he does not go on to explain exactly how
Energy West should have complied with this requirement, at the
hearing, it was the Inspector Gibson's opinion that when the
tailgate shear operator went to the headgate, he should have
given the sampling device to the headgate shear operator.
(Tr • 4 6-4 7 . )
While Energy West's method of sampling appears to conform to
the plain meaning of both the manual and the handbook, the
Secretary's construction of the meaning is strained. In the
first place, it is clear that the tailgate shear operator never
left his working environment, nor changed positions. In the
second place, the Secretary's interpretation would have some one
other than the DO, i.e. the headgate shear operator, performing
the sampling for half of the shift. And in the third place, it
would require the tailgate and headgate shear operators to be
constantly handing the sampling device back forth to one another.
The Commission has held that:
[I]n interpreting and applying broadly worded
standards, the appropriate test is not whether an
operator had explicit prior notice of the specific
prohibition or requirement, but whether a reasonably
prudent person familiar with the mining industry and
the protective purposes of the standard would have
recognized the specific prohibition or .requirement of
the standard.
Ideal Cement Co., 12 FMSHRC 2409 1 2416 (November 1990). Applying
this standard, it is still evident that the company was not put
on notice by either the manual or the handbook that this was the
way dust sampling on the longwall was supposed to be conducted.
Similarly, nothing that the MSHA inspectors told the
management at the Deer Creek mine put them on notice that the
tailgate shear operator was supposed to give the sampling device
to the headgate shear operator on the "cut" cycle in order to

822

properly conduct their dust sampling. Inspector Gibson's
testimony was vague, contradictory and, at times, implausible.
While all parties agree that Inspector Gibson told
Mr. Tuttle, the Section Foreman, on September 13 that the
sampling device was not to be taken to the "dinner hole" (Tr.
41, 172-73), only Inspector Gibson remembers telling Tuttle in
another conversation on that same day that when the DO went to
fresh air he had to give the pump to the headgate shear operator.
Further, although the inspector testified on direct examination
that he had two conversations with Mark Tuttle on the 13th, he
only related the contents of the "dinner hole" conversation, he
did not reveal what was said in the critical other conversation.
(Tr. 49.) Nor did he divulge it on cross examination, (Tr. 84),
redirect, (Tr. 113), recross or re-redirect.
It was only when I questioned the witness, and specifically
asked him what he told Mark Tuttle was supposed to be done, that
Inspector Gibson stated that he told Tuttle "that that pump was
to have been exchanged and stayed with the machine.
I thought
they knew that and that's the way they were doing it."
(Tr.
121.) Since this conversation is one of the bases for Gibson's
issuance of the order, (Tr. 59), as well as one of the crucial
factors in the -~ecretary's prosecution of the case, this lack of
specificity is perplexing and raises doubts about whether it
occurred. On the other hand, Tuttle unequivocally testified that
Inspector Gibson did not say anything to him about the tailgate
operator going to the headgate, that he only talked to him about
the operator taking the dust pump to the kitchen.
(Tr. 171-174.)
Inspector Robert Baker testified that he had conversations
with various members of management at Deer Creek in 1992 and
early 1993 concerning dust sampling by designated occupations.
With respect to the longwall, he said that he told them that the
dust pump had to stay with the designated occupation and that if
the DO "went to dinner or left to do something else, then if his
occupation continued to work then the pump was to stay with the
machine or the occupation." (Tr. 128-29.) He also stated that
he had observed dust sampling at Deer Creek in May 1993 when the
DO remained on the intake (headgate) side of the shear in fresh
air and that he did not consider that to be a violation of the
dust sampling regulations.
(Tr. 134-35.)
Inspector Fred Marietti testified that he talked with
Randy Tatton, who was then Safety Director at the cottonwood
mine, about dust sampling. 6 He stated that he told him that
"when taking respirable dust samples that it was mandatory
6
At the time of the alleged violation in this case, Tatton
was Safety Director at both the Cottonwood and Deer Creek mines.

823

that the respirable dust pump be kept with the operator of
the machine." (Tr. 13 7.)
Inspector Ted Farmer testified that he talked to .
Randy Tatton in November 1992 at the Cottonwood mine
concerning dust sampling. He related the conversation as
follows:
Q.

What was the substance of your conversation?

A. It was that the respirable dust pump remain at the
shearer7 with whoever was operating the tailgate
shearer, end of the shearer. And that if they switched
individuals then that pump would have to stay with the
individual that was running the shearer.
So if the tailgate operator left the shearer to go
somewhere else and another individual took his place,
what would happen with that pump?
Q.

A. That pump would stay with the individual who took
his place .
(Tr . 141-42.) Inspector Farmer sent a memorandum concerning this
conversation to his superiors. (Govt. Ex. 12.) Inspector Farmer
also testified that he was at the Deer Creek mine on October 4,
1993, when .the order in question was issued, and that it was his
understanding that the order was issued because "the pump left
the area and went to the kitchen with the operator." (Tr. 145,
14 7.)
Significantly, Inspector Gibson is the only witness for the
Secretary who states that Energy West was notified prior to being
cited about how dust sampling was to be conducted. His testimony
was less than straightforward . (See,~' Tr. 120-124). On the
other hand, none of the other inspectors had told Energy West
that the dust sampling at the Deer creek mine was improper; at
least one specifically testified that he did not think it was
improper; what they told Energy West about the Cottonwood mine
did not necessarily apply to Deer Creek and, furthermore·, would
not have put them on notice that what they were doing at Deer
Creek was improper; and even at the time Inspector Gibson issued
the order an inspector who was with him did not understand that
the alleged violation involved the DO going to the headgate.

7

Throughout the transcript the word "shear" appears as
"shearer."

8 24

Energy West's witnesses were unanimous in stating that up
until the order was issued on October 4, 1993, the only issue
concerning dust sampling and the DO that they had been advised
by MSHA about, and had discussed with MSHA, was the . DO taking
the sampling dev ice to lunch. I find their testimony to be
forthright, consistent with the rest of the evidence in the
case, and, therefore, credible.
Having found that Energy West was not put on notice either
by MSHA's publications or by MSHA's inspectors that its method
obtaining dust sample's by the tailgate shear operator was
improper, and that its sampling procedure appears to be
consistent with MSHA's publications, I conclude that the
company did not violate Section 70 . 207(e) (7) of the
Regulations. 8 Accordingly, the order will be vacated and
the civil penalty proceeding dismissed.
ORDER
It is ORDERED that Order No . 3587924 is VACATED and the
civil penalty proceeding is DISMISSED.

v.~~~

T. Todd H~d&on
Administrative Law Judge

Distribution:
Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, N.W., Washington, D.C . 20004-2595 (Certified Mail)
Carl c. Charneski, Esq . , U.S. Department of Labor, Office of the
Solicitor, Suite 400, 4015 Wilson Blvd . , Arlington, VA 22203
(Certified Mail)
/lbk

8

The Secretary does not claim in this case, nor is there
any evidence to support such a claim, that Energy West's method
of operating the longwall at the Deer Creek mine was designed
wholly, or in part, to avoid taking valid dust samples for the
DO.

325

nDBDL IUD SAPBTY DD mL'l'JI uvxn OOJor'ISS'IOll
OFFICE OF ADMINISTRATIVE LAW Jll>GES
2 SKYLINE, 10th FLOOR
5203 LEES8URG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 1 5 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
NAPOLEON SAND AND GRAVEL

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 93-46-M
. A.
C. No. 32-00185-05509
. Docket No. CENT 93-181-M
. A. C. No. 32-00185-05511
..
Docket No. CENT 93-182-M
A. C. No. 32-00185-05512
Gross Pit
DECISION

Appearances:

Robert J. Murphy, Esq., Office of the Solicitor,
u. s. Department of Labor, Denver, Colorado for
Petitioner;
Jerold A. Kuhn, Esq. Napoleon, North Dakota, for
the Respondent.

Before:

Judge Feldman

The above captioned proceedings are before me as a result of
a petition for civil penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801, et. seq., (the Act). These matters
were called for hearing on March 22, 1994, in Bismarck,
North Dakota. These cases concern a total of seven 104(a)
citations for which the Secretary initially proposed total civil
penalties of $4,038. Three of the seven citations were issued in
conjunction with 104(b) orders. 1
At the commencement of the hearing, the parties moved to settle
these cases. The settlement terms included the respondent's
stipulation to the violations as cited in the subject citations.
The agreed upon total civil penalty to -be assessed in these cases
was $1,750 which consists of $250 for each of the seven
citations. It was further agreed that payment of the civil
penalty would be deferred until on or before September 22, 1994,
when the respondent resumes gravel pit operations.
1

A 104(b) order is issued pursuant to Section 104(b) of the
Act, 30 u.s.c. § 814(b), when a violation previously cited is not
timely abated.

826

Section llO(i) of the Act, 30 u.s.c. § 820(i), sets forth
the statutory criteria for considering the appropriateness of
civil penalties. This criteria includes the operator's history
of previous violations, the relationship between the amount of
the penalty and the size of the operator's business, and the
demonstrated good faith of the operator in attempting to achieve
rapid compliance after issuance of the citation.
In considering the statutory civil penalty criteria, I note
the operator has had only 18 violations during the previous six
years of operation, and, that it has not been cited for any
violations within the past two years . (Tr. 14). In addition,
the respondent is a small business that is operated by Walter
Schauer, the sole proprietor . Only Walter Schauer and his son
Jerry perform work at the gravel pit site . The gravel pit is
only operated sporadically, approximately 400 hours per year, in
order to remove approximately 2,000 yards of gravel annually.
Although, a small portion of the extracted material is sold to
private individuals, the majority of the sand and gravel removed
is used for the respondent's ready mix concrete business.
(Tr. 11-12). Finally, counsel for the Secretary noted that the
respondent has always been courteous to the Mine Safety and
Health Administration inspectors and has demonstrated a past
willingness to promptly correct violations. (Tr. 14). In this
regard, the respondent's culpability for the three 104(b) orders
issued in this matter is mitigated by the fact that the gravel
pit was not operational during the interim period between the
issuance of the initial citations and subsequent 104(b) orders.
(Tr. 16-17).
In view of the information presented on the record
pertaining to the Section llO(i) penalty criteria, I issued a
bench decision approving the settlement agreement proffered by
the parties. As noted above, the settlement terms include
payment by the respondent of $1,750 on or before
September 22, 1994 . If payment is not made on or before
September 22, 1994, the total penalty of $4,038 initially
proposed by the Secretary will become due and payable
immediately.
ORDER
Accordingly, the parties• motion to approve settlement IS
GRAN'l'BD. IT IS ORDBRED that the respondent pay a total civil
penalty of $1,750 on or before September 22, 1994, in
satisfaction of the seven citations in issue. Upon timely
payment of this sum, these cases ARB DISMISSED.

Jerold Feldman
Administrative Law Judge

827

Distribution:
Robert J. Murphy, Esq., Office of the Solicitor, u. s. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, co 80294 (Certified Mail)
Gerald A. Kuhn, Esq., Napoleon Sand & Gravel, P .
Napoleon, ND 58561 (Certified Mail)
/11

828

o. Box #SO,

l'BDBDL 11D1B SUB'l'Y A11D JIB&L'.l'B ltBVJ:BW 00Jllll'.88J:OB
ORJ:CB OP ADllXBJ:STD'rl:VB aw JUDGBS
2 SKYLJ:JIB, 10th PLOOR
5203 LBBSBUltG PJ:KB
PALLS CBUBCB, TI:RGDlll

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

22041

APR 1 5 1994

. CIVIL PENALTY PROCEEDING
Docket No. WEVA 92-783
.: A.C . No. 46-01816-03805

v.

Gary No. 50 Mine

UNITED STATES STEEL MINING
COMPANY, INCORPORATED,
Respondent
DECISION ON ·REMAND

Before:

Judge Fauver

Beginning in 1981, the Commission has held that a
"significant and substantial" violation under § 104(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq .. 1 requires proof of "a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a
reasonably serious nature." Cement Division. National Gypsum
~ 3 FMSHRC 822, 825 (1981}; Mathies Coal Co . , 6 FMSHRC 1,
3-4 (1984). In Mathies the Commission further 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:
(1) the underlying violation of a mandatory safety
standard; . • • (2) a discrete safety hazard -- that
is, a measure of danger to safety -- contributed to by
the violation; {3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4)
a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
In my original decision in this case, I interpreted the
Mathies "reasonable likelihood" test to mean that an S&S
violation exists if there is a substantial possibility that the
violation will result in injury or disease, and that the
Section 104(d) defines a significant and substantial
violation 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."

829

secretary is not required to establish that it was more probable
than not that injury or disease would result.
The Commission reversed my decision, holding that a
"substantial possibility test" is "contrary to Commission
precedent" and "does not lend itself to review under the third
Mathies standard." It remanded "for proper application of the
third Mathies element, i.~., whether there was a reasonable
likelihood that the hazard contributed to would result in an
injury."
On remand, the parties remain in sharp conflict as to the
meaning of the Mathies test. U.S. Steel contends that "an
objective reading of Mathies compels the conclusion that the
Secretary must prove that it was more probable or likely than not
that the hazard contributed to would result in an injury."
Respondent's Brief on Remand, p. 4. The Secretary contends that
"the Mathies test does not require proof that it is more probable
than not that a violation will result in an injury." Secretary's
Brief on Remand, p . 3.
The Commission has not resolved this issue. Although it
ruled that a "substantial possibility test" is contrary to
Mathies, it has, not ruled whether the term "reasonable
likelihood" in Mathies means "more probable than not" or includes
a lesser degree of possibility or probability. To comply with
the remand "for proper application of the third Mathies element,"
it will be necessary to decide this issue.
The parties' conflict is understandable because the term
"reasonable likelihood" may convey different meanings. To U.S.
Steel, the word "likelihood" governs, and the term "reasonable
likelihood" means "more probable than not." To the Secretary,
the word "reasonable" modifies "likelihood" to mean a reasonable
potential, not "more probable than not."
For the reasons that follow, it is my interpretation that
the third Mathies element -- "a reasonable likelihood that the
hazard contributed to will result in an injury or illness"
does not mean "more probable than not."
I begin by noting the Commission's discussion of .a
"significant and substantial" violation as falling "between two
extremes" (in National Gypsum):
Section 104(d) says that to be of a significant and
substantial nature, the conditions created by the violation
need not be so grave as to constitute an imminent danger.
(An "imminent danger" is a condition "which could reasonably
be expected to cause death or serious physical harm" before
the condition can be abated. Section 3(j)). At the other
extreme, there must be more than just a violation, which

830

itself presupposes at least a remote possibility of an
injury, because the inspector is to make significant and
substantial findings in addition to a finding of violation.
Our interpretation of the significant and substantial
language as applying to violations where there exists a
reasonable likelihood of an injury or illness of a
reasonably serious nature occurring, falls between these two
extremes -- mere existence of a violation, and existence of
an imminent danger . • . . [3 FMSHRC at 828.]
As the Commission observed, a "significant and substantial"
violation in § 104(d) is less than an "imminent danger" in
§ 3(j).
The legislative history of the Act makes clear that an
"imminent danger" is not to be defined in terms of "a percentage
of probability":
The Committee disavows any notion that imminent danger
can be defined in terms of a percentage of probability that
an accident will happen; rather the concept of imminent
danger requires an examination of the potential of the risk
to cause serious physical harm at any time. It is the
committee's view that the authority under this section is
essential to the protection of miners and should be
construed e;xpansively by inspectors and the Commission .

* * *

2

It follows that an S&S violation, which by statute is less
than an imminent danger, 3 is to be defined not "in terms of a
percentage of probability" but in terms of "the potential of the
risk" of injury or illness (Legislative History cited above).
Tests such as "more probable than not" or some other percentage
of probability are inconsistent with § 104(d) and the Act's
legislative history.
This interpretation is also indicated by Commission
decisions finding an S&S violation where the facts do not show
injury or illness was "more probable than not." For example, in
U.S. Steel Mining Co., 7 FMSHRC 327 (1985), the issue was whether
the failure to install a bushing for a cable entering a water
pump was an S&S violation . The judge found that the pump

s. Rep . No. 95-181, 95th Cong. 1st Sess. (1977),
reprinted in senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977 at 626 (1978).
2

3

Section 104(d) excludes imminent dangers from its
definition of an S&S violation.

831

vibrated, vibration could eventually cause a cut in the
insulation, and if the circuit protection systems failed, a worn
spot in the cable could energize the pump-frame and cause an
electrical shock. The judge found an S&S violation, holding that
injury was "reasonably likely" to occur. 5 FMSHRC ·1788 (1983).
In affirming, the Commission stated, inter alia :
on review, U.S. Steel argues that the facts indicated
that the occurrence of the events necessary to create the
hazard, the cutting of the wires' insulation and failure of
the electrical safety systems, are too remote and
speculative for the hazard to be reasonably likely to happen
and, consequently , that the judge erred in concluding that
the violation was significant and substantial.

* * *
* * *

The fact that the insulation was not cut at the
time the violation was cited does not negate the possibility
that the violation could result in the feared accident. As
we have concluded previously, a determination of the
significant and substantial nature of a violation must be
made in the context of continued normal mining operations.
U.S . Steel Mining Co., 6 FMSHRC 1673, 1574 (July 1984). The
administrative law judge correctly considered such continued
normal mining operations . He noted that the pump vibrated
when in operation and that the vibration could cause a cut
in the power wires' insulation in the absence of a
protective bushing. In view of the fact that the vibration
was constant and in view of the testimony of the inspector
that the insulation of the power wires could be cut and that
the cut could result in the pump becoming the ground, we
agree that in the context of normal mining operations, an
electrical accident was reasonably likely to occur.
In U.S. Steel Mining Co., the finding that injury was
"reasonably likely to occur" was based upon a reasonable
potential for injury, not a finding that it was more probable
than not that injury would result. Indeed, based upon the facts
found by the trial judge and relied upon by the Commission, one
could not find that it was "more probable than not" that, had a
bare spot in the cable touched the frame, the circuit ·protection
systems would have failed to function to prevent injury.
For the above reasons, I conclude that the term "reasonable
likelihood" as used in the Mathies test does not mean "more
probable than not." Because of the importance of this question,
I certify my ruling for interlocutory review by the Commission,
pursuant to Rule 76 of the Commission's Procedural Rules,
20 c . F.R § 2700.76. In doing so, I certify that the .
interlocutory ruling involves a controlling question of law and

832

that, in my opinion, immediate review will materially advance the
final disposition of this proceeding .

(J}~~~v~

William la~ver
Administrative Law Judge

Distribution:
Javier I. Romanach, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, suite 516, Arlington,
VA 22203 {Certified Mail)
Billy M. Tennant, Esq., United State Steel Mining Company, Inc.,
600 Grant Street, Pittsburgh, PA 15219 (Certified Mail)
/lt

833

FBDBRAL llDIB

COMKISS:COH
OFFICE OF ADMlNlSTRATlVE LAW JUDGES
i SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VlRGlNIA 22041

APR 1 6 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

:

CIVIL PENALTY PROCEEDING

. Docket No . LAKE 93-64-M

.:• A.C. No. 47-00792-05504

v.

Cedar Land sand and Gravel

CEDAR LAKE SAND AND GRAVEL
COMPANY, INCORPORATED,
Respondent
DECISION APPROVING SE'.l'Tl.RlfRNT

Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section l05(d) of the Federal Mine Safety
and Health Act of 1977 (the Act). Petitioner has filed a motion
to approve a settlement agreement and to dismiss the case. A
reduction in penalty from $100 to $40 is proposed. I have considered the representations and documentati on submitted in this
case, and I conclude that the proffered settlement is acceptable
under the criteria set forth in Section llO(i) of the Act.
WHEREFORE, the motion for approv
GRANTED, and it is ORDERED that Resp
$40 within 30 days of this order. T
April 12, 1993 , was accordingly can

of settlement is
' nt pay a penalty
earing scheduled
d.

Gary Me · k
Administrativ
Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S . Department
of Labor, 230 s. Dearborn Street, 8th Floor, Chicago, IL 60604.
Bruce Gilbert, President, Cedar Lake Sand and Gravel Co., Inc,
5189 Aurora Road, Hwy. 41, Hartford, WI 53027
/lb

834

FEDERAL KINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5267/FAX (303) 844-5268

APR 1 8 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDINGS

.

Docket No. WEST 93-169
A.C. No. 42-01944-03614

.

Cottonwood Mine

0

ENERGY WEST MINING COMPANY,
Respondent
DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Timothy M. Biddle, Esq., Thomas A. Stock, Esq.,
CROWELL & MORING, Washington, O.C.,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration {MSHA) charged Respondent, Energy West
Mining Company ("Energy West") with violating the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 802 , et~ (the
"Act") •
A hearing was held in Salt Lake City, Utah.
filed post-trial briefs.

The parties

STIPULATION

1.
Energy West is engaged in mining and selling of bituminous coal in the United States and its mining operations affect
interstate commerce.
2.
Energy West is the owner and operator of the Cottonwood
MSID N. 4201944.
3.
Energy West is subject to the jurisdiction of the
Federal Mine Safety and Health Act.

835

4.
matter.

The Administrative Law Judge has jurisdiction in this

5.
The citation and order were properly served· by a duly
authorized representative of the Secretary upon an agent of the
respondent on the date and place stated therein, and may be admitted into evidence for the purpose of establishing their issuance and not for the truthfulness or relevancy of any statements
asserted therein.
6.
The exhibits offered by the Secretary and by the Respondent are stipulated to be authentic, but no stipulation is
made as to their relevancy or the truthfulness of the matters
asserted therein.
7.
The proposed penalty of $500.00 [as to Citation No.
9996761] will not affect Respondent's ability to continue in
business.

a.

Energy West is a large mine operator.

9.
Exhibit M-1 is a certified copy of the history of
assessed violations and it accurately reflects the history of the
mine for the two years prior to the date of the citation.
This case involves the validity of a citation issued under
Section 104{a) of the Act and a related order issued under Section 104{b) for an alleged failure to abate.
citation No. 9996761 issued June 25, 1992, was generated by
an advisory of excessive dust relating to MMU1 015-0 of the
cottonwood Mine.
The advisory provided as follows:

Cassette Ho.

Date

46603112
46603119
46602829
46602815
46603115

6-11-92
6-12-92
6-15-92
6-16-92
6-17-92
AVG. CONC. 2.2

MRE Equivalent
concentration

Production

1.8
2.0
1. 7
3.0
2.8

NORM. PROD.

5630
5160
663.0
7300
5825
6109

(Exhibit M-3)

"MMU" is an acronym for Mechanical Mining Unit.

836

(Tr. 65).

The citation issued as a result of the advisory alleged a
violation of the respirable dust standard, 2 and it reads as
follows:
Based on the results of five valid dust samples colle·cted by t he operator, the average concentration of
respirable dust in the working environment of the 044
designated occupation in mechanized mining unit 015-0
was 2.2 milligrams which exceeded the applicable limit
of 2.0 milligrams. Management shall take corrective
actions to lower the respirable dust and then sample
each production shift until five valid samples are
taken and submitted to the Pittsburgh Respirable Dust
Processing Laboratory. Approved respiratory equipment
shall be made available to a l l persons working in the
area .

At the commencement of the hearing, the operator admitted
the violation alleged in the citation based on the Secretary's
motion to amend the citation to a non-S&S violation. The Secretary agreed to such an amendment based upon affidavits submitted by the operator showing that the miners who were exposed to
the levels of ~espirable dust listed in the citation were all
wearing personal protective equipment.
(Tr. 33; Ex. M-2). The
motions to amend and withdraw the operator's contest were
granted.
EVIDENCE
On July 15, 1994, Fred L. Marietti, an MSHA inspector for 15
years, was at the Cottonwood Mine beginning a regular AAA inspection.
(Tr. 26, 27).

2

S 70.100

Respirable dust standards.

(a)
Each operator shall continuously
maintain the average concentration of
respirable dust in the mine atmosphere
during each shift to which each miner in
the active workings of each mine is exposed
at or below 2. 0 milligrams of respirable
dust per cubic meter of air as measured
with an approved sampling device and in
terms of an equivalent concentration determined in accordance with §
70.206
(Approved sampling devices;
equivalent
concentrations) .

83 7

His inspection was interrupted when he was recalled to his
off ice to review a computer-generated report of continuing noncompliance on MMU 015.
{Tr. 290).
The report read, in part, as follows:
Citation/order No .
Date Issued
Expiration Date

09996761
06-25-92
07-14-92

MRE Equivalent
Cassette No.

Date

Concentration

Production

46602833
46602834
46602911
46602927
46602931

7-01-92
7-01-92
7-02-92
7-02-92
7-03-92

3.4

6630
7000
6000
6500
6500

2.3

NORM. PROD. 6526

AVG. CONC.

1.5

1.1
2.7
2.8

(Exhibit M-4)

After reviewing the two documents, Mr. Marietti returned to
Cottonwood and told Energy West they had a "b" order for failing
to make a good-faith effort to abate citation No. 9996761.
The Order (No. 3850746) was issued under Section 104(b) 3 of
the Act on the same day. It provided as follows:
Results of the five most recent samples received by
MSHA and collected by the operator from the working
environment of the designated occupation, 044-0 in MMU
015-0 shows an average concentration of 2.3 mg/m3 •

3

The cited portion of the Act reads:
(b)
If, upon any follow-up inspection of a coal or
other mine, an authorized representative of the secretary finds (1) that a violation described in a citat i on
issued pursuant to subsection (1) has not been totally
abated within the period of time as originally fixed
therein or as subsequently extended, and (2) that the
period of time for the abatement should not be further
extended, he shall determine the extent of the area affected by the violation and shall promptly issue an
order requiring the operator of such mine or his agent
to immediately cause all persons, except those persons
referred to in subsection (c), to be withdrawn from and
to be prohibited from entering, such area until an
authorized representative of the Secretary determines
that such violation has been abated .'

838

015-0 shows an average concentration of 2.3 mg/m3 •
Due to the obvious lack of effort by the operator to
control the respirable dust, the period of reasonable
time for abatement cannot be extended. There will be
no mining of coal in MMU 075-0, 11th left longwall.
section, until the operator submits a plan to the
District mine manager for approval to lower the
average concentration of respirable dust to the
required level.

CASE AUTHORITY

The Secretary relies on Clinchf ield Coal Company, 11 FMSHRC
2120 (November 1989).
In support of its position, Energy West relies on a series
of Administrative Law Judges' decisions including Peter White
Coal co., 1 FMSHRC 255, 265 (April 1979); Eastern Associated Coal
Corporation, Docket No. Hope 76-140, slip op. at 25 (June 22,
1978); Peabody Coal company, 11 FMSHRC 2068, 2102-2103 (October
1989). Concerning a failure to abate, see also the Commission
decision in Mid-Continent Resources, Inc., 11 FMSHRC sos (April
1989) .

APDITIONAL EVIDENCE
Fred L. Marietti and Robert Thaxton testified for the Secretary. Garth Nielsen, Bud Warrington, Steve Radmall, Dennis
Ardohain; Ed Hickman, Max Mccourt, Randy Tatton, and Thomas Hall
testified for Energy West.
Inspector Fred L. Marietti issued the 104(b) order.
rationale for doing so will be discussed hereafter.

His

Robert A. Thaxton, an expert witness and industrial hygienist, reviewed dust samples of the cottonwood mine and expressed
the view that cottonwood has a relevant history of non-compliance
with the regulation. The evidence presented by Energy West will
be discussed hereafter.
DISCUSSION

At the outset, it should be noted that the mid-June 1992
sampling for respirable dust was at the longwall in th·e 4th West
section. The early-July 1992 sampling at the same longwall was
also in the 4th West section.
On July 10, 1992, a week after the abatement samples were
collected, mining was stopped in 4th West and the longwall was
moved to 11th Right Section, approximately two miles away.
On July 15, 1992, Inspector Marietti issued Order No.
3850746 and withdrew the miners from 11th Right Section.

839

In this factual situation, the change of the location of the
MMU does not affect the 104(b) order because the entity cited is
MMU-015, a longwall.
(Tr. 88).
Exhibit M-3 cited above, is a computer generated advisory
for excessive dust at Cottonwood. It resulted in the issuance of
Citation No. 9996761. Subsequently, on a report of continuing
non-compliance dated July 14, 1992, Inspector Marietti issued the
104(b} order on July 15, 1992.
(Tr. 29).
It was Mr. Marietti's decision to issue the 104{b) order.
His decision was based on several facts.
Specifically, he noted
that the average dust concentration in the mid-June 1992 sampling
was 2.2 mg/m3 • However, the early July 1992 sampling for dust
showed an increase to 2.3 mg/m3 • Further, such a concentration
at Cottonwood could affect the health of the miners.
(Tr. 35).
In addition, this unit (015-0) had frequently been going out
of compliance. Modifications were then made to bring the MMU
back into compliance, but such modifications were not being incorporated in the operator's ventilation plan.
{Tr. 36, 37). It
was obvious to Mr. Marietti that additional sprays, different locations, and increased air were required to be abated.
{Tr. 37).
After he had completed the inspection, Mr. Marietti wrote
MSHA's District Manager to suggest various recommendations in
connection with the operator's ventilation plan.
{Tr. 38, 39;
Ex. M-5).
The Inspector also talked to the miners at the face.
Some
of the changes they recommended were on the machine and had been
in use.
(Tr. 40).
In Mr. Marietti's view, coal production is one of the main
reasons the operator comes out of compliance. In reviewing sampling with other inspectors, when the company's production is
around 6,000 tons the company is out of compliance but they come
back into compliance around 4500 tons.
{Tr. 41, 42).
In the Inspector's opinion, the company's ventilation plan
was adequate for the lower production but not for 6000 tons.
{Tr. 42) .
In connection with a previous order, numerous things were
done, including the installations of tip sprays, deflectors on
the shields to try to help entrain the air into the face.
On July 15, these things were not in place nor were they
incorporated into the ventilation plan.
(Tr. 43).

840

Energy West had been given 21 days to abate the original
citation. After the ("b") order was issued, the company abated
in eight hours.
(Tr. 43, 44).
Mr. Marietti agrees he did not enter the mine nor did he
inspect the longwall before issuing his order. Also, he did not
ask anyone at the mine why the readings might have increased.
(Tr. 4 7, 48) •
The Inspector wrote the format words into his order. There
is similar wording in the inspection manual. However, no one
told him what to write. {Tr. 53, 54). Exhibit R-1, identified
as the Coal Mine Inspector's Manual, suggests similar language to
be incorporated when writing an order.
(Tr. 54, 55). For their
protection, miners are required to wear air stream helmets after
the issuance of an order. The Inspector's order required such a .
wearing of air stream helmets until the ("b") order was lifted.
(Tr. 56) .
ROBERT A. TRAXTON, an expert witness, studied the Cottonwood
dust sampling for two years. His opinion, supported by his bar
chart (Ex. M-6) is that the dust sampling concentration increase
with coal production.

Mr. Traxton's testimony is hereafter discussed in connection
with Energy West's contentions.
CORRECTIVE ACTIONS AND MINING CONDITIONS

As revealed in the testimony of several witnesses for Energy
West, in the days that followed the issuance of the citation, the
company undertook numerous corrective actions to lower respirable
dust concentrations in the 4th West section. As soon as he heard
there was a violation on Friday, June 26, 1992, Mr. Randy Tatton
and the managers of the Cottonwood Mine met to develop a corrective action strategy. (Tr. 328). The following Monday, June 29,
1993, Mr. Tatton directed one of his Safety Engineers, Mr. Steve
Radmall, to do a dust survey using a real time aerosol monitor,
or "RAM," "to ensure that all the controls that [the Mine] had in
place were functioning properly." (Tr. 329. In addition, on
Monday, June 29, 1993, Mr. Tatton and the Mine superintendent,
Mr. Garth Nielsen, unsuccessfully attempted to divert more air
into the 4th West section.
(Tr. 329-335).
On June 30, 1992, Mr. Radmall conducted a RAM survey of the
4th West section as directed by Mr. Tatton.
(Tr. 213, 230).
This dust survey involved taking spot measurements of respirable

841

dust concentrations4 at several locations in the 4th West section. Based on his survey results, Mr. Radmall reco~ended that
the intake air course and stage loader be checked for any dust
generation problems. (Tr . 230-231). The RAM check .also revealed
that dust levels rose dramatically when the longwall shear cut
through rock in the mine roof. (Tr. 227).
In the meantime, the miners on the section were put on a
dust control alert by the Equipment Overhaul Coordinator, Mr. Bud
Warrington, who on Friday, June 26, 1992, informed the Longwall
Maintenance Foreman, Mr. Ed Hickman, that "[w]e are out on dust
samples," and directed that immediate action be taken to correct
one possible source of dust, a baffle on the crusher of the stage
loader.
(Tr. 188; Ex. R-5). This repair was performed by Tuesday, June 30, 1992, after a new baffle was made.
(Tr. 285-286).
Mr. Warrington reiterated his instruction the following Monday, June 29, 1992, adding instructions to "[c]heck everything
out that has to do with dust . Make it shine." (Tr. 189-190; Ex.
R-5). Mr. Warrington gave this instruction because samples would
soon be taken to determine if the dust violation had been abated.
(Tr. 190) . His instructions were accompanied by a checklist of
dust control measures he prepared in May 1991. (Tr. 187; Ex .
R-4). This checklist includes adjusting air controls and volumes; changing filters in and otherwise maintaining a scrubber
designed to capture dust at the stage loader (Tr. 179-181); running all sprays in the stage loader and in the machine that
crushes coal coming off the longwall {the "crusher") {Tr. 181);
checking the baffle plates on the crusher that restrict dust from
entering the mine atmosphere (Tr. 181); checking the various dust
control flaps and baffles on the shear of the longwall machine
(Tr . 182-184) ; watering roadways and walkways· (Tr. 184-185) ; and
limiting the use of diesel-powered vehicles on the section (Tr.
185).

Mr. Hickman assumed personal responsibility to see that
these corrective actions were being thoroughly carried out.
(Tr. 287). From June 29 through July 1, 1992, Mr. Hickman performed several repairs and maintenance checks on the longwall
equipment in 4th West.
(Tr. 284-291) . Other miners working on
the longwall took numerous corrective actions as well.
MR. DENNIS ARDOHAIN, a Longwall Section Foreman, testified
that he and his crew "spent quite a bit of time chasing down dust
parameters [i.e., controls) • •• we may have missed." (Tr. 241).
4

RAM sampling results provide what is essentially a "snapshot" of dust
concentrations at any given moment. In contrast, dust samples collected for
analysis by MSHA provide an average figure for the eight hours sampled.
(Tr.
237-238).

842

On every swing shift {i.e., 4 p.m. until midnight) from June 26,
to July 3, 1992, Mr. Ardohain supervised various equipment repairs to ensure that dust generation was kept to a minimum, including changing the bits on the lonqwall shear~ cleaning the
shields and wetting the section, and checking and r ·e pairing
sprays.
{Tr. 242-251) •
MR. MAX MCCOURT, the Longwall Service Foreman, performed
repairs to control dust generation on every graveyard shift from
June 29 to July 2, 1992, including changing filters on the stage
loader scrubber, installing a . dust control flap on the longwall
shear, installing a new cover on the stage loader, and checking
and repairing sprays. {Tr. 299-305}.
Energy West also relied on administrative measures to limit
the miners' exposure to respirable dust. These measures included
providing Racal airstream helmets to all miners working on the
section.
(Tr. 252, 327-328; Ex. M-2). These helmets provide a
virtually dust-free air supply to miners, reducing respirable
dust exposure to insignificant levels. {Tr. 403-404). The positions of miners on the lonqwall face also were routinely
changed to minimize their exposure to respirable dust, since some
areas are dustier than others on ·a longwall.
(Tr. 251-252}.
Energy West's corrective actions were taken in the face of
very difficult mining conditions specifically, severe geological
problems.
(Tr. 131). Mr. Nielsen, the Mine Superintendent,
described these conditions as "some of the worst that we'd had in
a long time." (Tr. 143). Mr. Ardohain testified that the conditions were "about the worst I can remember since I had been at
the cottonwood Mine." (Tr. 255).
MOVE TO 11th RIGHT
Mining conditions were so bad in 4th West tnat on July 10,
1992, a week after abatement samples were collected on the section, mining was stopped, leaving 100 feet of the panel unmined.
(Tr. 144, 164) . The longwall equipment was moved to the 11th
Right Section, approximately two miles from 4th West (Tr. 147).
Conditions on 11th Right were dramatically different from 4th
West. Most notably, where 4th West was dry, 11th Right was very
wet. {Tr. 147-149, 343-344)'. In addition, unlike 4th west,
where face burst and rock in the roof were problems, on 11th
Right, problems were encountered with the top, resulting in lower
production.
(Tr. 379).
ENERGY WEST CONTENTIONS
Energy West argues it met all of the .abatement requirements
of Citation No. 9996761 therefore the 104(b) order should be
vacated.

843

The citation required Energy West to "take corrective action
to lower the respirable dust." It is true that the operator took
some corrective action but it did not lower the dust.
In fact,
the dust concentration was 2.2 mg/m3 and it increased to 2.3
mg/m3 •
(See Exs. M-3 and M-4).
Energy West further argues that Inspector Marietti abused
his discretion by failing to consider whether the circumstances
warranted an extension of the abatement period. In support of
its position , Energy west cites a number of Judges' decisions and
the MSHA Policy Manual at I.15 (July 1988).
Abuse of discretion may be broadly defined to include errors
of law .
See generally Butz v . Glover Livestock commission Co.,
4 11 U. S . 182 , 185-186 (1973); NL Industries, Inc., v. Department
of Transportation, 901 F.2d 141, 144 (D.C. Cir. 1990); U.S. v.
U.S. Currency, in the amount of $103,387.27, 863 F . 2d 555 (7th
Cir. 1988); Bothyo v. Moyer, 772 F.2d 353, 355 (7th Cir. 1985)
("abuse of discretion may be found only if there is no evidence
to support the decision or if the decision is based on an improper understanding of the law"), Utah Power and Light Company,
Mining Division, 13 FMSHRC 16.1 7 (October 1991) .
In this case, the record shows there was a continuing dust
violation from mid-June until early July 1992. Given this information, Inspector Marietti properly exercised his discretion.
In
my view, no circumstances existed that would cause the Inspector
to conclude otherwise.
Energy West further argues that mining conditions in 4th
West justified an extension of the abatement period for the citation.
In support of its position the operator cites a series
of Judges' decisions . Youghiogheny and Ohio Coal Co., 8 FMSHRC
330, 339 (March 1986); Freeman coal Mining Corp., 1 IBMA 1 . 27
(1970) ; Consolidation Coal Company, 3 FMSHRC 2201, 2205 (Sept .
1981); Consolidation coal company, 4 FMSHRC 747.752 (April 1982).
Specifically, had Inspector Marietti conducted an inspection
of MMU 015-0, he would have discovered that the miners operating
the longwall were using airstream helmets. In addition, he would
have discovered that the longwall had been moved two miles to the
right because of the adverse mining conditions.
(Tr. 144).
It is the Judge's view that no extension of the abatement
period would have been justified. The use of air helmets is not
a remedy authorized under 70 . lOO(a) . Further , when adverse mining conditions cause excessive dust, those conditions should be
addressed by the operator. Finally, in this case, the Inspector's opinion focused on those facts which indicated that the
cause of the excessive dust concentration was MMU-015. As a
result, it is not relevant that the MMU had moved to 11th Right.

844

To justify the Order in this case, the Secretary relies on
the "history of excessive dust"; the relationship of production
to dust levels; changes in MMU numbers; dust sample results and
the diligence of Cottonwood's efforts to control respirable dust;
a claim that cottonwood refused to adjust its ventilation plan
and accusations that Cottonwood acted in "bad faith."
EXCESSIVE DUST

Energy West identifies the "history of excessive dust" as a
basis relied upon by the Secretary to justify the order in this
case. Energy West argues that no case law is offered to suggest
that the factors offered by the Secretary are legitimate grounds
for stopping operations.
The evidence, partially from Exhibit M-6, 5 shows dust sampling on 22 dates from April 16, 1991, to May 13, 1993. The
operator was out of compliance on 11 .o f the 22 samplings. A
record of being out of compliance 50 percent of the time establishes a history of excessive dust.
RELATIONSHIP OF COAL PRODUCTION TO COAL DUST

It is a fact that less production can mean less dust.
(Tr. 380). However, the detailed evidence in this case fails
to establish a credible relationship between production and coal
dust.
A review of the time line sampling Chart A6 for MMUs 012,
013, 014, 015, and 016 is warranted since the evidence indicates
that all MMUs are basically similar. . However, the review indicates production is unrelated to coal dust when dust sample
results are compared with production figures. Further, the time
line sampling chart fails to establish any credible conclusion in
support of Mr. Marietti's opinion that Cottonwood can handle the
respirable dust generated by 4500 tons of production but it tends
to go out of compliance at 6000 tons.
s
The bottom of M-6 lists five separate MMUs. Above the MMUs are
the respirable dust sampling dates. At the top of the chart corresponding to
the dates are the dust sampling concentrations. The colored overlay on M-6
shows coal production.
6

Chart A, the timeline sampling history at the Cottonwood Mine is
the third page of Exhibit M-6.

845

REDUCING PRODUCTION TO COME INTO COMPLIANCE
THEN
RESUMING HIGHER PRODUCTION
The Secretary asserts that Energy West has a history of
reducing production long enough to come into compliance then
resuming higher production.
(Brief 3, 5).
No evidence supports the Secretary's position. In addition,
a review of the timeline sampling indicates lower dust sample
results can occur when production is higher. Exhibits M-6 and M4 show the following:
Date

Sample Result

Production <Tons>

4-16-91
5-08-91
4-28-92
6-17-92
7-01-92
7-01-92

5.7 mg/m3
2.1 mg/m3
1.4 mg/m3
2.2 mg/m3
1. 5 mg/m3
3.4 mg/m3

4,875
5,710
6,526
6,109
7,000
6,630

Ex. M-6 (average sample results for MMU 014-0 and MMU 015-0);
Ex. M-4 (abatement sample results for MMU 015-0). Applying the
Secretary's hypothesis, one would predict that when Energy West
decreased production on MMU 014-0 between April 16 and May 8,
1991, and on MMU 015-0 between April 28 and June 17, 1992, and on
July 1, 1992, the sample averages or results would have decreased
correspondingly. As demonstrated from the results above, this
was not the case. Levels of respirable dust in an underground
coal mine are affected by many factors other than production--a
good example is the adverse mining conditions encountered by Cottonwood in its 4th West longwall section (Tr. 398, 402).
In addition, the testimony of Dr. Hall that face bursts and other
conditions in 4th West increased dust levels. An underground
coal mine is "a very dynamic environment in which the conditions
change on a relatively frequent basis" (Tr 397), and many of
these changes in conditions affect respirable dust levels and
sample results (Tr. 135-136, 398, 402). This is borne out by the
testimony of several witnesses regarding the dramatic difference
in mining conditions between 4th West and 11th Right (Tr. 147149, 207, 294, 307, 343-344), and the fact that Cottonwood came
into compliance with relative ease once the longwall began
operating in less adverse conditions in 11th Right.
(Tr. 277-278).
In connection with reducing production then resuming higher
production, the secretary cites the transcript at pages 46, 42,

846

and 78 to support this position. .
the Secretary's view:

The transcript does not support

At page 36, Inspector Marietti is discussing changes in the
MMU ventilation plan. This issue is discussed infra.
At page 42 Inspector Marietti is discussing dust parameters
and concludes that their ventilation plan is adequate for lower
production but not for 6000 tons. For the reasons previously
stated, I have rejected this portion of the Inspector's opinion.
At page 78, expert witness Thaxton is discussing timeline
sampling from Exhibit M-6. For the reasons previously stated, I
have rejected Mr. Thaxton's opinion of the data.
In sum, the transcript references do not support the Secretary's allegations.
COTTONWOOD'S EFFORTS TO REDUCE DUST AND CHANGING MMU NUMBERS

The Secretary further argues that Cottonwood does not make a
diligent or good faith effort to reduce dust at the mine but instead, makes a minimal effort to control dust.
In support of his
position, the Secretary cites the transcript at pages · 37, 39-40,
76.
The evidence fairly shows that cottonwood made only a minimal and inadequate effort to control dust and failed to adjust
its ventilation plan to reflect any modifications.
Inspector Marietti testified:
Q:

All right. So are you saying that they did things to
keep down the dust, but those things were not in their
ventilation plan?

A:

That's right.

Q:

Now, why would that make a difference?

A:

Well, it's obvious to me that these additional requirements are needed, additional sprays, different
locations increased air, if that's necessary, different things of that nature are required to abate the
order. Or in the past, it's only evident to me that
they - that it should be incorporated into the ventilation plan and the MMU to keep the mining environment
of the health of miners and keep the dust less than
the two milligram standard or less - less than that
standard.
(Tr . 37).

Further, Mr. Marietti related a conversation with Mr.
Randy Tatton, Energy West's manager of health, safety, and
training.
(Tr. 316) .

847

Q.

And what did you discuss with Mr. Tatton on that day?

A.

I discussed, you know, the non-compliance there and we
discussed some things that I told him that I can re.remember that I said, "I'd like to see you incorporate
these things in your MMU ventilation plan requirements. " And he told me th.a t they didn't want to include that stuff in there because they didn't want to
get violations, and if they did, that they would have
nowhere to go to abate the violation. And I told him,
I says, "Well, my problem with it is, you know, you're
telling me that you need these things in there but you
don't want to put them in the ventilation plan because
if they're not working, you're afraid you'll get a violation." But I said, "It's apparent to me that you
need these in here because every time you get a citation or an order, you have to use these things or
they're used to bring out a compliance." (Tr. 41,
42}.

Mr. Marietti's testimony is further supported by his memorandum to MSHA district manager on August 13, 1992.
(Ex. M-5).
Mr. Tatton confirmed the Inspector's testimony. He stated:
"if we were to get parameters in our plan that were at the very
max, then, you know, we have nowhere to go. We need that flexibility and we do ·at all times operate at our minimums and when we
shouldn't be penalized for doing something better."
(Tr. 372).
Many of the modifications made to abate the order were of
such a nature that they could have been in place to deal with the
mining conditions involved in 4th West.
Section 104(b) of the Act requires the authorized representative of the Secretary to set a reasonable time for abatement, and determine if an extension of time is warranted if the
violation had not been abated during that time. The Inspector
must determine whether or not the violation is serious and
whether or not the company has made a diligent, good faith effort
to abate during the time designated. Section 104(b) requires
that if "an authorized representative of the Secretary finds
(1) that a violation described in a citation ... (a) has not been
totally abated within the period of time as originally fixed
therein ... , and (2) that the period of time for the abatement
should not be further extended ... "he shall issue a failure to
abate order." Here, Inspector Marietti found that the citation
had not been abated, since the level of excessive dust had risen
to 2.3 milligrams rather than decreased to below the required 2.0
milligrams, and that the period of time for abatement should not
be further extended. He determined that the original amount of
time given for abatement was reasonable and that a 11 b 11 order was
justified under the circumstances.
(Tr. 36-40).
In the absence of a diligent or good faith effort to abate a
violation within a designated time, withdrawal orders may be

848

properly· issued. It is not enough that any effort to abate is
made, it must be a diligent effort. Issuance of an order is
reasonable when only a token effort has been made. Republic
· Steel Corporation, 3 FMSHRC 1099 (April 1981). A 104(b) order is
also properly issued when good faith efforts have not been exercised and a valid reason for an extension has not been given before an order has been issued. Consolidated Coal, 2 FMSHRC 2862
(October 1980).
Inspector Marietti realized, upon review of the records,
that during the 21-day abatement period, the level of respirable
dust had not been diminished in any respect, but indeed had
climbed. It is more than reasonable to assume that if a diligent
effort had been made that it would be reflected in the sample results. That is, the abatement samples (Ex. M-4) would show a decline in respirable dust, rather than an increase.
(Tr. 80-81).
In addition, if a diligent effort to control dust had been made
by the operator, the individual samples should have improved over
the abatement time. (Tr. 81). Instead, the individual number of
samples that were out of compliance had increased from two to
three. An increase in the average concentration and an increase
:in t~e individual concentrations clearly indicate that the mine
made little ef.fective effort to correct the respirable dust violation.
(Tr. 81).
Even if the dust was caused by adverse mining conditions,
these conditions are not a defense recognized by 70.100.
The Secretary, citing the transcript at 37-40 and 76, also
asserts Cottonwood often changes the MMU numbers in order to
avoid dust history.
The transcript at pages 37-40 reveals the testimony of Inspector Marietti concerning what was not in the operator's ventilation plan. In addition, he discussed his conversation with
miners at the face. The transcript at page 76 does not deal with
changing MMU numbers but deals with dust controls. As the Secretary knows, any change in an MMU is subject to proper MSHA
approval.
(30 C.F.R. § 75.370).
In sum, the Secretary failed to prove that Energy West
modified its MMU numbers to avoid dust history.
For the reasons stated herein, the citation and order herein
are AFF:IRMED.
CIVIL PENALTY

Section 110(i) of the Act mandates consideration of certain
criteria in assessing appropriate civil penalties .

849

The record reflects that Energy West is a large mine
operator.
(Stip. ! 7).
The payment of the proposed penalty should not affect the
operator's ability to con~inue in business.
The operator's prior history indicates it was assessed and
paid .268 violations in the two-year period ending June 24, 1992.
Energy West was negligent in permitting the 2.2 mg/m3 respirable dust concentration; further the operator was negligent in
failing to lower the dust concentration.
The gravity of the violation is high since respirable coal
dust can cause pneumoconiosis over a period of time. Generally,
such a violation is considered to be "S&S".
Energy West is not entitled to statutory good faith since it
failed to abate the original citation.
The judge believes a civil penalty of $3000 is appropriate
herein.
Accordingly, for the foregoing reasons, I enter the
following:
ORDER

Citation No. 9996761 and Order No. 3850746 are AFFIRMED and
a penalty of $3,000 is ASSESSED.

Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Timothy M. Biddle, Esq., Thomas A. Stock, Esq., CROWELL & MORING,
1001 Pennsylvania Avenue, NW, Washington DC 20004-2595
(Certified Mail)
ek

850

OFFICE Of ADMUllSTRATJVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIK£
FALLS CHURCH, VIRGINIA 22041

APR 1 8 1994

..• CONTEST PROCEEDING
v.
Docket No. SE 93-56-R
..:• Citation
No. 3188499; 11/10/92
SECRETARY OF LABOR,
. No. s Mine
MINE SAFETY AND HEALTH
.. I.D. No. 01-01322
ADMINISTRATION (MSHA),
Respondent
.
UNITED MINE WORKERS OF AMERICA, :
..
Intervenor
SECRETARY OF LABOR,
.: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION ( MSHA)
: Docket No. SE 93-132
JIM WALTER RESOURCES, INC.,
contestant

0

1

Petitioner

A.C. No. 01-01322-03896

.. No. s Mine
..•
.

UNITED MINE WORKERS OF AMERICA, :
•
Intervenor

v.

JIM WALTER RESOURCES, INC.,
Respondent

DECISION
Appearances:

David M. Smith, Esq., J. Alan Truitt, Esq.
Maynard, Cooper, Frierson and Gale, P.C.,
Birmingham, Alabama, and R. Stanley Morrow,
Esq., Jim Walter Resources, Inc., Brookwood,
Alabama, for Jim Walter Resources, Inc;
William Lawson, Esq., Office of the Solicitor,
u.s. Department of Labor, Birmingham, Alabama,
for the Secretary of Labor;
Patrick K. Nakamura, Esq., ·and Robert Weaver,
Esq., Longshore, Nakamura and Quinn, Birminqham,
Alabama, on behalf of the United Mine Workers
of America.

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 n_ seq., the "Act," to challenge
Citation No. 3188499 issued by the Secretary of Labor for

851

the failure of Jim Walter Resources, Inc. {JWR) to have
operated with an approved ventilation, methane and dust
control plan (ventilation plan). The underlying issue
is how JWR will comply with the respirable dust sampling
requirements in lonqwall mining sections set forth in
30 C.F.R. § 70.207.
30 C.F . R.
follows:

§

70.207 provides, in relevant part, as

{e) Unless otherwise directed by the District
Manager, the designated occupation samples shall be
taken by placing the sampling device as follows:

* * * on the miner
(7 ) Lonqwall section.
who works nearest the return air side of
the lonqwall working face or along the
working face on the return side within
48 inches of the corner.
Rather than sample in accordance with the above subsection (7) JWR requested that the Mine Safety and Health
Administration (MSHA) district manager consider an alternative
sampling proc~dure within his discretionary authority under
the above subsection (e). This proposal was submitted on
October 10 , 1992, as a modification to its ventilation plan
(Exh. G-13) . The MSHA district manager thereafter rejected
the proposed modification and has not "otherwise directed"
how sampling should take place. Under the circumstances,
JWR must comply with section 70 .207 {e)(7) .
In an interlocutory decision issued August 23, 1993,
notifying the parties of the burden of proof and standard
of proof to be applied in this case, it was held that the
revised ventilation plan submitted by JWR on October 10,
1992, under the circumstances of this case,was only a vehicle
to enable the district manager to exercise his discretion to
"otherwise direct" a method of dust sampling under 30 C.F.R.
§ 70.207(e).
It was accordingly held that the attempted use
of the ventilation plan modification procedure in the instant
case did not alter the burden of proof and standard of proof
applicable to a mine operator's challenge to the Sec~etary's
exercise of discretion under the cited standard.
It was further held that the burden was upon JWR to
prove that the decision of the district manager, in not
otherwise directing that JWR could conduct its respirable
dust sampling in the manner it had requested, was arbitrary
and capricious. However, since the posture of these cases
ultimately is that of enforcement proceedings, i.e., the

852

issuance of Citation No. 3188499 and the challenge of that
citation under Section l05(d) of the Act, it is apparent
that, in fact, the Secretary has the burden of proof in these
cases. The Commission has long held that in an enforcement
action before the Commission, the secretary bears the burden
of proving any alleged violation. Asarco Mining co., 15 FMSHRC
1383 (1993), Jim Walter Resources. Inc., 9 FMSHRC 903, 907
(1987). Consistent with this, the Secretary in these cases
in fact assumed the burden of going forward with the evidence
and the decision herein is based upon the placement of the
burden upon the Secretary. Moreov~r, since it is the decision
by the district manager to deny JWR's requested modification
that is the underlying issue herein and since the Secretary
is the proponent of that decision, the burden of proof is, in
any event, properly upon the secretary in these proceedings
to show that the decision of the district manager was not
arbitrary and capricious. See 5 u . s.c. § 556(d); Commission
Rule 63(b), 29 C.F.R. §2700 . 63{b) .
The analysis of the "arbitrary and capricious" standard
by the Circuit Court in American Mining Congress v. Marshall,
671 F.2d 1251 (10th Cir . 1982), although applied to judicial
review under the Administrative Procedure Act, is nevertheless
instructional. 1 In this regard the Court stated as follows:
The United States Supreme Court explained the
meaning of the arbitrary and capricious standard
in Citizens to Preserve Overton Park. v. Volpe,
401 U.S. 402, 91 s.ct. 814, 28 L.Ed. 2d 136 (1971):
Section 706(2)(A) requires a finding that
the actual choice made was not 'arbitrary.
capricious. an abuse of discretion, or
otherwise not in accordance with law.'
To make this finding the court must consider whether the decision was based on a
consideration of the relevant factors and
whether there has been a clear error of
judgment. Although this inquiry into the
facts is to be searching and careful, the
ultimate standard of review is a narrow one.
The court is not empowered to substitute its.
judgment for that of the agency.
Id. at 416, 91 s . ct . at 823 (citations omitted).
Under this standard, the agency must demonstrate
that it considered the relevant factors and alternatives after a full ventilation of the issues and

see 5 u.s.c. § 706(2)(A).

853

that the choice it made based on that consideration
was a reasonable one. [footnote omitted] (Emphasis
added)
The determination of whether the district manager acted
in an arbitrary and capricious manner must also be limited to
the facts and information presented to him at the time he made
such decision. See Golden Coal Mining Co .. L.P. v. Secretary,
12 FMSHRC 1360 (1990).
The record shows that on October 10, 1992, JWR presented
to MSHA District Manager Joseph Garcia an alternative for dust
samplinq of the occupation designated as "the miner who works
nearest the return air side of the longwall workinq face,"
i.e., the occupation identified at 30 C.F.R. § 70.207(e)(7).
The particular provisions at issue appear in paragraph K(2)(f)
of the October 10, 1992, ventilation plan (Exh. G-13) and provide
an alternative method for computing allowable downwind exposure
to respirable dust. It read as follows :
The work practices of the miners down wind time
will be adjusted to correspond with the respective
sample result of the 7 samples taken that was not
greater than the respirable dust level which shall
not exceed 2 mg when the respective hourly sample
.is multiplied by an equivalent MRE conversion factor
of 1.38.
Garcia testified that in early November 1992 he rejected
this proposal because it provided for the calculation of
respirable dust exposure in terms of weight gain expressed in
milligrams . 2 While conceding that he did not understand the
proposed modification and did not try to understand it, he stated
that it was not necessary for him to understand it because the
proposed testing procedures were in violation of the Secretary's
regulations. Garcia testified that the regulations require, for
purposes of determining respirable dust exposure, a conversion
of weight gain to dust concentration expressed in milligrams per
cubic meter of air (mg/m3 ). In his brief, the Secretary cites
in this regard the following standards: 30 C.F.R. §§ 70.2(d),
70.200, 70.202, 10 . 201 and 70.206.
It is undisputed,moreover, that before rejecting· the JWR
proposal in paragraph k(2)(f) Garcia nevertheless conferred with
his ventilation specialist Judy McCormick who agreed that the

2

It is not disputed that Mr. Garcia was the District
Manager who made this decision even though the subsequent
formal rejection letter dated November 6, 1992 was signed
by his successor (Exh. G-14).

854

proposal would violate the requlations for respirable dust
sampling. It is further undispute~ that before rejecting the
JWR proposal Garcia also conferred wi th Bob Peluso of the MSHA
technical support staff in Pittsburgh, Ron Schell, . the Chief
of MSHA's Health Division, MSHA Deputy Administrator and mining
engineer Robert Elam, and Ed Hugler , a Deputy Assistant
Secretary. According to Garcia, "every recommendation I had
back on this is that weight gain was not an acceptable way of
calculating for respirable dust . "
JWR argues that the district manager's statements (that
he did not understand the JWR proposal and had no intention
of understanding it) show that his decision was arbitrary and
capricious . These statements taken out of context would appear
to support JWR's position. If the district manager does not
understand the technical aspects of a proposal to be evaluated
under 30 C.F . R. § 207(e) it is incumbent upon him to confer with
persons having the necessary expertise to provide a rational and
reasoned basis for his decision. 3 However, the record in this
case shows that the district manager did in fact confer with a
number of legal and technical experts before making his decision.

In any event , the district manager's discretion under
70 . 207(e) is\ limited to making modifications in the location
or placement of the sampling devices and nothing more . The
district manager does not have the authority under that section
to change the computational methodology as JWR seeks in its
proposal . Accordingly, it was not incumbent .upon the district
manager to make any change in the computational methodology.
§

Under the circumstances I f i nd that the decision of the
district manager was not arbitrary and capricious . Accordingly,
his denial of the JWR proposed modification in paragraph k(2)(f)
of its October 10, 1992 plan must stand and the citation must be
affirmed . Since this case was initiated for the sole purpose of
litigating the unique issues presented and that the alternative
provisions submitted by JWR were never actually implemented, I
find that a civil penalty of $1 is appropriate .

3

It appears that Robert Haney, an MSHA Supervisory
Mining Engineer and apparently MSHA's principal expert on
this highly technical issue, was not consulted until w~ll
after the district manager made his decision in this case
and only then in preparation for this litigation.

855

ORDER

Citation No. 3188499 is APP:tRllBD and contest Proceeding
Docket No. SE 93-56-R is DISMISSED. Jim Walter Resources, Inc.
is directed to pay a civil penalty of $1 for the violation
charged in Citation No. 3188499
thin 30 days of the date of
this decision.
/
/
Ii I

i/

G ry Melick
jinistrative
Distribution:

w Judge

!

David M. smith, Esq., Maynard ~ Cooper, Frierson and Gale,
P . C., 1901 6th Avenue North, 2400 AmSouth, Herbert Plaza,
Birmingham, AL 35203-2602 (Certified Mail)
R. Stanley Morrow, Esq . , Jim Walte~ Resources, Inc. ,
P.O. Box 133, Brookwood, AL 35444 (Certified Mail)
Patrick K. Nakamura, Esq., ·Longshore, Nakamura and Quinn,
New South Federal Bldg., Suite 300, 2100 First Avenue
North, Birmingham, AL 35203 (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 (Certified Mail)
lh

856

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

APR 2 0 1994
IN RE:

CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

)
)
)

Master Docket No . 91-1

)

KEYSTONE COAL MINING CORP . ,
Contestant

v.

)
)

CONTEST PROCEEDINGS

)

Docket Nos. PENN 91-451-R
through PENN 91-503-R

)

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

)
)
)
)

Citation Nos. 9860247
through 9860299

)
)

Docket Nos. PENN 91-1176-R
through PENN 91-1197-R

)
)

)
)
)
)
)

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

v.

)
)
)
)

Citation Nos. 9862821
through 9862842
Urling No. 1 Mine
Mine ID 36-04852
CIVIL PENALTY PROCEEDINGS
Docket No. PENN 91-1264
A.C. No. 36-04852-037570

)
)

KEYSTONE COAL MINING CORP . ,
Respondent

)
)

UNITED MINE WORK~RS
OF AMERICA (UMWA),
Representative
of the Miners

)
)
)
)

)

)
)
)

Docket No. PENN 91-1265
A.C. No. 36-04852-03758D
Docket No. PENN 91-1266
A. C. No. 36-04852-03759D
Docket No. PENN 92-182
A.C. No. 36-04852-03778D
Docket No . PENN 92-183
A.C . No . 36-04852-037790

)

)

8 5 7:

Urling No. 1 Mine

PBCISION

Appearances:

Douqlas N; White, Esq., Stephen D. Turow, Esq.,
and Richard L. Gilman, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for the Secretary of Labor;
R. Henry Moore, Esq., Stanley R. Geary, Esq., and
Heather A. Wyman, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for Keystone Coal Mining
corp.;
Barry A. Woodbrey, Esq., Washington, D.C., for the
United Mine Workers of America.

Before:

Judge Broderick
STATEMENT OF 'l'JIE CASE

On April 4, 1991, the Secretary of Labor (Secretary) issued
53 citations to Urling Number 1 Mine (Urling) of the Keystone
Coal Mining corp. (Keystone) alleging violations of the mandatory
standard in 3.0 c. F. R. S 70. 209 (b) . on June 7, 1991, the
Secretary issued an additional 22 citations for violations of the
same standard. · Each of the citations charges that "the weight of
the respirable dust cassette . • • has been altered while the
cassette was being submitted to fulfill the sampling requirements
of Title 30 c.F.R. Parts 70, 71 or 90. Observation of the filter
surface indicates that a portion of the dust had been removed . "
The filters cited on April 4, 1991 were submitted on various
dates between September 20, 1989 and December 4, 1989. The
filters cited on June 7, 1991 were submitted on various dates
between January 3, 1990 and May 15, 1990. For each of the
violations charged on April 4, 1991, the Secretary sought a civil
penalty of $1,800; for each violation charged on June 7, 1991, he
sought a penalty of $1,500. At the closing argument after the
trial in this case, counsel for the Secretary stated that he now
seeks a penalty of $5,000 for each violation.
The citations issued to Urling are part of the more than
citations issued to approximately 800 coal mines in 1991.
Following substantial pretrial discovery, all pending cases were
consolidated for the trial of issues common to all cases. The
common issues trial was conducted from December 1, 1992 to
February 22, 1993. 1/ The common issues decision, promulgated
July 20, 1993, selected Urling for a mine-specific trial and
stayed all other pending cases. Contests of Respirable Dust
Sample Alteration Citations, 15 FMSHRC 1456 (1993). The Urling
mine is operated by Keystone, which is a wholly owned subsidiary
of Rochester and Pittsburgh Coal Company (R & P). The dust
5 1 000

1

Transcript citations to the common issues trial will be
/
prefixed by CIT, as CIT Tr. ~~·

858

sampling program at all the R & P mines, including Urling, was
conducted by R & P's Environmental Safety Department which was
located in a central laboratory.
A written stipulation was submitted and received at the
commencement of the mine-specific hearing on November 30, 1993.
The Secretary offered testimony from a number of miners and
former miners of Keystone; Robert A. Thaxton, MSHA supervisory
industrial hygienist who initially determined that the citations
should be issued; Or. Virgil A. Marple, an expert in the field of
aerosol particle technology who testified in the common issues
trial; Paul s. Parobeck, Chief of the Instrumentation and
Analytical Branch of MSHA's Pittsburgh Health Technology Center;
and Dr. John J . Miller, a statistics expert who testified in the
common issues trial. Keystone offered testimony from a number of
Keystone personnel, including assistant foremen at Urling,
certain safety personnel, and the supervisors and dust
technicians at the R & P central dust laboratory; Dr . Richard J.
Lee, an expert in materials characterization and analyses and
environmental monitoring who testified in the common issues
trial; and Or. H. Daniel Roth, a statistics expert who also
testified in ·the common issues trial. The United Mine Workers of
America (UMWA). did not offer any witnesses or other evidence.
The hearing concluded on January 6, 1994. Counsel for the
Secretary and Keystone made closing arguments on the record .and
each has filed a written posthearing brief and a reply brief. I
have considered the evidence received in the common issues trial,
the evidence in the mine-specific trial involving Keystone's
Urling mine, and the contentions of the parties in making this
decision.
I.
A.

FACTUAL AND PROCEDURAL BACKGROUND

RESPIRABLE DUST SAMPLING PROGRAM

Section 202 of the Federal Mine Safety and Health Act of
1977 (Mine Act), 30 U.S.C. § 801 et~ (1988), requires each
coal mine operator to take accurate samples in a manner
prescribed by the Secretary of the amount of respirable dust in
the mine atmosphere to which each miner in the active workings is
exposed. Congress first instituted dust sampling requirements to
control the amount of respirable dust to which miners are exposed
when it enacted sections 201 through 205 of the Federal Coal Mine
Health and Safety Act of 1969, 30 u.s.c. S 801 et seq. (1976)
(amended 1977). In enacting these provisions, Congress voiced
the nation's concern for the "countless thousands [who] have
suffered and died or presently suffer from the ravages of coal
workers' pneumoconiosis -- the dread miners disease caused by the
inhalation of excessive amounts of coal dust." H.R. Rep.
No. 91-563, 91st Cong., lst Sess. (1969), reprinted in
Leaislative History Federal Coal Mine Health And Safety Act 558
(1970).

859

In implementing the statutory requirements, the Secretary
has promulgated regulations, 30 C.F.R. SS 10 . 201-220 (for
underground mines), 71.201-220 (for surface mines), . and
90 . 201-220 (for Part 90 miners), which require coal mine
operators to take samples of the concentration of respirable dust
in the active workings of the mine and to maintain the average
concentration of such dust at or below prescribed levels. The
concentration is determined on the basis of five valid samples
from a designated occupation (or one valid sample from a
designated area) during a bimonthly sampling period . Compliance
by the coal industry with these requirements and the reduction in
the incidence of "black lung" disease is obviously of the highest
importance . Black lung is irreversible and continued exposure to
respirable dust after it is contracted can lead to progressive
pulmonary fibrosis and the destruction of lung tissue. 2 /
Therefore , violations of the respirable dust limits have been
determined to be of such nature as could significantly and
substantially contribute to a mine health hazard (Section ·1 04(d)
of the Mine Act) . Consolidation Coal co., 8 FMSHRC 890 (1986},
aff 'd sub nom . Consolidation Coal Co . v. FMSHRC, ~24 F . 2d 1071
(D . c. Cir. 1987). Clearly, violations of the standard in section
209(b) are extremely serious violations since they compromise the
integrity of the program designed to reduce respirable dust and
its deadly effects .
B.

COMMON ISSUES TRIAL AND DECISION

By agreement between counsel for the Secretary and counsel
for the mine operators, a common issues trial involving all the
consolidated cases was held. The . trial began in December 1992
and was concluded in February 199 3 ." The purpose of the common
issues trial was to receive evidence and decide issues common to
all the contested citations. On behalf of the Secretary , Robert
Thaxton testified concerning his criteria for citing filters
exhibiting abnorma l white centers (AWCs) and explained why he
concluded that such filters established tampering. He described
his classification of the cited filters under 10 tamper codes in
accordance with the physical appearances of the filters and what
Thaxton believed caused those appearances. . The Secretary
introduced evidence concerning the handling of filter cassettes
at MSHA's Pittsburgh Health Technology Center (PHTC). Scientific
expert witnesses testified on behalf of the Secretary and the
mine operators as to the possible and probable causes of AWCs and
the effect of sampling equipment and mine dust variables on the
occurrence of AWCs. They offered opinion evidence on the
question whether an AWC indicates an intentional alteration of
2/
"Down through the years , Black Lung -- the disease
caused by breathing respirable coal dust -- has snuffed out more
lives than any of the other hazards present in mining . "
J. Davitt McAteer, Miner's Manual . 109 (1981) .

860

the weight on the filter. Statistical expert witnesses testified
on behalf of the Secretary and the mine operators concerning the
meaning of the rates of cited AWCs in the various mines and the
decline in the cited rates at different times.
·
My decision on the common issues trial made certain findings
of fact. I found that reverse air AWCs could have resulted from
intentional acts, such as blowing or otherwise directing a pulse
of air into the cassette outlet or introducing a vacuum source
into the cassette inlet. I found that such AWCs could also have
resulted from impacts to the cassette or the sampling hose, which
might have occurred accidentally during normal handling of the
sampling equipment at the mines, or from snapping together the
two halves of the cassette. I further found that the reverse air
AWC dislodgment patterns could not have resulted from mailing the
cassettes from the mines to the PHTC, or the desiccation of the
filter capsules or other handling of the cassettes and capsules
at the PHTC. I found that the filter-to-foil distance in the
cassettes and the floppiness of the filters were factors in the
susceptibility of filters to AWC dislodgments; and that the
firmness or softness of the sampling assembly hose, and variables
in the dust on the filter may have affected the susceptibility to
AWCs. I found that on the average reverse air AWC filters showed
a weight loss. With respect to filters cited under tamper codes
other than those considered the result of reverse air, I found
that those classified under tamper codes 5 and 9 could have
resulted from intentional tampering, but those classified under
codes 8 and 10 were not consistently classified or were not shown

to have been likely caused by intentional acts.
on the basis of all the evidence introduced in the common
issues trial, I concluded that the Secretary failed to carry his
burden of proving by a preponderance of the evidence that an AWC
on a cited filter establishes that the mine operator
intentionally altered the weight of the filter, and that he
f a.iled to carry his burden of proving by a preponderance of the
evidence that deliberate conduct on the part of the cited mine
operators is the only reasonable explanation for the cited AWCs.
Those findings and conclusions are incorporated in this
decision involving Keystone .
II.

THE MINE-SPECIFIC TRIAL -- SAMPLING AND AWCs

A.

HANDLING OF PUST PUMPS AND CASSETTES AT URLING

1.

THE ESD PUST LAB

The respirable dust sampling program for Urling, as well as
for all R & P mines, has been conducted by R & P's Environmental
Safety Department (ESD) under the supervision of Donald Eget
since 1970. During 1989 and 1990, Shawn Houck worked at the ESD

861

as a maintenance and calibration technician, and Douglas Snyder
worked as a dust technician assigned responsibility for sampling
at the Urling mines. Three other dust technicians were assigned
responsibility for sampling at other R & P mines.
Shawn Houck worked from 6:00 a.m. to 2:00 p.m., Monday
through Friday. When he arrived at the lab he prepared pumps to
be used by the dust technicians that day. The dust technicians
arrived about 7:00 a.m., picked up the pumps and sampling
assemblies, and took them to the mines for sampling on the three
shifts, the first beginning at 8:01 a.m. (daylight shift).
Donald Eget arrived at the lab at about 7:30 a.m. and, after
being apprised as to the previous day's sampling, left at about
8:00 a.m . to pick up the pumps and samples from the previous
afternoon and midnight shifts from all 13 R & P mines. Eget
carried the pumps and samples back to the lab in a company
vehicle. If the pumps were in a carrying box, Eget lowered the
rear window of his vehicle and swung the box over the tailgate
and placed it on the floor in the cargo area. He tried to avoid
having the box land on the hoses but occasionally it may have
done so. If Eget picked up loose pumps, he generally placed them
on the floor on the passenger side or on the rear seat. He
carried the loose pumps by grasping the hoses and might have
carried up to '.half a dozen at a time. Eget was not concerned
about loose pumps landing on hoses and he was sure that they did.
He was not aware that this might have created a problem. Eget
drove over main and secondary roads, some of which were rather
rough. In 1989 and 1990, the Urling pumps were generally picked
up from a hallway outside the safety director's office.
Sometimes they were in carrying boxes, and sometimes they were
loose . If loose, the pumps were aligned in rows parallel to the
wall with the hoses out of the way. This was a traffic area, so
the hoses could have been stepped on.
When Eget returned to the lab at some time between 9:30 a.m.
and 11:45 a.m., he placed the pumps on a table. Other pumps
might have been already there and the pumps or boxes of pumps
might have landed on hoses. Eget testified that he did not
handle the pumps carelessly, that he did not drop the pumps or
boxes on the table, but placed them there. Other witnesses,
including Houck and Snyder, testified that Eget handled the pumps
roughly, briskly like he was in a hurry, and recklessly.
While Eget picked up pumps from the mines, Houck processed
the pumps left from the previous daylight shift. Houck removed
the sampling head and hose from each pump, cleaned the pumps, and
placed them on the charging rack. He disassembled the sampling
head and removed the cassette. He disassembled and cleaned the
cyclone assembly, cleaned the hoses, and filled out the dust data
cards. When Eget returned to the lab, Houck removed the
cassettes from the sampling heads and took them to Eget's office .

862

Eget recorded cassette numbers from each mine, checked the
dust data cards against the cassette numbers, and looked into
cassette inlets and recorded the filter appearances. After Eget
finished reviewing the samples, he brought them ou·t of his off ice
and Houck packaged them for mailing to MSHA. Cassettes from all
three shifts were mailed simultaneously. Houck cleaned any
remaining pumps, prepared pumps for use the next day, and did
calibration and maintenance of pumps if needed until he left for
the day.
The dust technicians returned from the mines to the lab
after 4:00 p.m. and delivered pumps from the daylight shift.
They placed their paperwork on Houck's desk, checked to see if
pumps were in order for the next sampling day, and left for the
day. Occasionally, dust technicians would be in the lab during
the day, e.g., near the end of a bimonthly sampling period or
when a section broke down at the mines. Eget left for the day at
4:00 p.m. or 5:00 p.m. after all the dust technicians phoned in
or returned to the lab.
Houck testified that when he arrived at the lab, some pumps
that were left by the dust technicians the previous afternoon
were loose on "the table and it took him 15 to 20 minutes to
untangle the h·o ses. Many pumps were sitting on hoses. When
Houck took apart the sampling assembly, it was often difficult to
remove the hose from the nipple outlet on the pump. He would
sometimes use pliers to pull the hose off, or double the hose to
free it from the nipple, or wrap the hose around his hand and
work it back and forth. Houck occasionally dropped cassettes on
the floor when removing them from the sampling head or pushing in
the plugs. Houck saw Eget catch the pump hoses in the office
door when bringing them in. He also saw Eget accidentally drop
the pumps, and strike hoses with pumps and boxes of pumps when he
put them on the table.
Snyder has dropped pumps while carrying them from the Urling
mine to his car or to the ESD. He has had hoses catch on the car
door lock and latch, and the drawer handles in the safety office.
He has dropped cassettes when pulling them from the sampling
head. He has stepped on hoses and has seen others step on hoses.
When carrying loose pumps, Snyder usually carried them by the
hoses. He has placed pump carrying boxes on the table in such a
way that hoses were caught under the box. Some hoses were
difficult to remove from the pump. Snyder often had to wrap the
hose through his first two fingers in order to pull it off.
The three other dust technicians testified regarding the
manner in which they handled pumps. Robert Bolinger testified
that when he placed pumps with the hoses wrapped around them in a
carrying box, he had to push them into the box, thereby
compressing the hoses on both sides of the pump. Bolinger used
the trunk of his car to transport the pumps and samples and is

863

certain that at times he shut the trunk lid on hoses or caught
the hoses on the trunk latch. When he brought them into the dust
lab and placed them on the table, he impacted the hoses of other
pumps. Bolinger handled the pumps roughly. Bolinger has dropped
a cassette on the lab floor while removing it from the sampling
head. He has also dropped the whole assembly. Herbert Gleditsch
testified that before the Spring of 1990 he carried pumps by the
hoses and handled them roughly. Gleditsch has caught hoses in
his car door. He was not certain as to the time of these events.
Thomas Hollern has snagged hoses that hang below the bottom of
the pump carrying boxes. He may have closed the door of his car
on hoses . He has dropped cassettes when removing them from the
sampling heads . Hollern has placed pump carrying boxes on hoses
lying on the lab room table.
I find as facts that the dust dislodgment patterns on the
cited Urling filters could have resulted wholly or partly from
the handling of the sampling assemblies by the ESD personnel
described in this section. Specifically, they could have
resulted from the carrying of multiple pumps by their hoses,
dropping carrying boxes with pumps to the floor of a vehicle or
onto a table, stepping on hoses, placing pumps on hoses, catching
hoses in car doors or the office door, dropping pumps and
sampling assemblies on the ground or on the floor, dropping dust
laden cassettes on the floor, or otherwise impacting the hose as
previously described.

2.

RESPIRABLE OUST SAMPLING AT URLING

When Doug Snyder arrived at the Urling mine in the morning,
he set the pump carrying box on a counter top or table . He
usually brought four pumps to sample one mechanized mining unit
(MMU) (a pump for each of the three shifts and one extra pump) or
seven or eight pumps to sample two MMUs. The number of pumps he
brought depended upon the sampling schedule, i.e., whether it was
an MMU month or a designated area {DA) month, and how many
sections he would be sampling. Snyder usually tried to sample
two sections at a time.
Snyder collected pumps from the previous afternoon and
midnight shifts left in the lamphouse or the section foremen's
office, and placed them in the hallway for Eget to pick up. He
took the pumps to be used for sampling on the daylight shift to
the lamphouse and gave them to the miners or the section foremen.
After Snyder distributed the pumps, he usually went into the
mine. Snyder also distributed pumps at the beginning of the
afternoon shift. Snyder left pumps with notes attached in the
section foremen's desks if he was not there for the afternoon
shift, and for sampling on the midnight shift.

864

The section foremen at Urling were certified to take
respirable dust samples and were annually retrained by Snyder on
the use of respirable dust pumps. Each section foreman
supervised a coal production crew which was periodically sampled
for respirable dust. When a crew member was sampled for
respirable dust (usually the miner operator, but on occasion
other crew members), the section foreman was required to examine
the pump during the second and last hours of the shift to ensure
that the pump was running and to check for proper flow rate.
The miners usually arrived at the Urling mine about 1/2 hour
before the beginning of the shift . About 5 to 15 minutes before
the shift started, miners went to the lamphouse to pick up their
equipment . If sampling was scheduled they generally received
pumps from Snyder or their section foremen .
Miners did not receive formal training on how to use or
handle the pump, but were instructed to be careful with it and
not to turn the sampling head upside down because it could spoil
the sample. Miners knew that if a sample they took was
invalidated they would have to carry the pump again to get
another sample. The pumps were fully assembled and ready for
sampling when ·the miners received them.
Miners wore or carried the pumps in a variety of ways,
generally clipping the pump body onto their belts, clipping the
sampling head onto their shirt collar, and clipping the hose onto
their coveralls. Some miners ran the hose under and through the
bib of their overalls. Others placed the pump body inside their
coveralls. In this manner, the pump body sat between the miner's
shirt and his coveralls (above the belt}, the hose was tucked
inside the coveralls and came out at the neck, and the sampling
head was clipped to the lapel outside the coveralls. Some miners
carried the pump to the section with the hose wrapped vertically
around the pump body and the sampling head clipped to the nipple
outlet.
The miners travelled to the working sections in mantrips . A
mantrip carried four miners across on each of two seats with the
mechanic and the section foreman sitting in the operator's
compartment. Some miners placed their pumps, lunch buckets,
hammers, and other items on top of the flat part of the battery
on the mantrip, on the bumper above their feet, on the metal
ledge, on the seat, or on the floor during transit to and from
the section. Some miners left the sampling head attached to
their collar and placed the pump body between their legs. Others
continued to wear their pumps. After the mantrip ride, miners
generally walked to the "kitchen" where they dropped off their
lunch buckets, got their tools, and received instructions and
information regarding mining conditions. Then they went to the
face and mined coal.

865

Two types of continuous mining machines were used at
Urling -- the Lee-Norse miner and the Joy miner. When using
the Lee-Norse continuous mining machine, some miners wore the
pump and others set the pump on top of the machine · next to or
inside the operator's compartment and attached the sampling head
onto the canopy post.
The hose was generally straight up and
down in front of the miner operator. Some miners hung the whole
pump on the canopy post with the sampling head attached to the
nipple outlet, using wire attached to a hole in the canopy post
and the clip on the back of the pump. Regardless of where the
pump was set, it would stay in place throughout the shift. The
Joy continuous mining machine was operated using a remote control
unit. The miner sat on a bench, stood, or knelt at varying
distances behind the machine. When using the Joy machine, some
miners wore the pump and others attached the pump to the remote
box. Miners attached the entire pump assembly to the remote box
in a variety of ways. Some miners left the hose hanging in front
of the remote box, while others wrapped the hose where it could
not get caught.
Generally, the miner operators alternated responsibilities
with their miner helpers after each cut. When the miner operator
and the miner 'helper switched roles, the pump remained affixed to
the machine or the remote box (the pump stayed with the person
operating the continuous mining machine throughout the shift).
In addition to running the continuous mining machine, miners
shovelled coal from the belt, rock dusted, cleaned up, checked
the bits and sprays, and hung curtains. Some miners wore the
pump while performing these activities . Other miners left the
pump on the machine or the remote box. When miners put down the
remote box, they placed it on top of the machine or bench or on
the mine floor. Miners put other equipment on top of the machine
also, e.g., a rock bar, hammers, pliers, bolts, and bits in a
gallon bucket.
Occasionally, but not often, pumps have accidently fallen
during the shift, e.g., pumps have fallen off the remote box, and
pumps have fallen off miners' belts when they were walking bent
over, stooping, or shoveling. Sometimes the miners have caught
the pumps (by the pump body or the hose), or the sampling head
and hose clips have prevented pumps from falling to the mine
floor. Sometimes pumps have detached from the hose and fallen to
the floor. Other times entire sampling assemblies, including the
sampling head and pump, have fallen to the floor.
Miners have snagged hoses on objects during the shift while
walking in the mine. This could have pinched the hose or
detached the hose from the nipple outlet. If a hose is pinched,
the pump ~akes a sound different from its normal drone, more like
a "thump." The miners testified that they have also heard this
sound when riding on the mantrip and a hose is squeezed between

866

two miners' bodies. The miners did not recall stepping or
sitting on hoses during the shift.
Some miners turned off the pump during the shift because of
its noise. The pump sounds like a "bunch of bumble bees."
Miners turned off the pump for up to 5 minutes at a time to hear
someone tell them something or if they heard a noise in the roof.
Some miners turned off the pump for a few minutes at a time when
they were stumping or pillar mining so they could listen to roof
conditions . In the kitchen at lunchtime, when the miner operator
and helper took their breaks together, some miners turned off the
pump for the entire 1/2-hour lunch . Other miners left the pump
running in the lunchroom.
Toward the end of the shift when it was time to stop mining,
the miners checked to see that all the curtains were up,
ventilation was maintained, and equipment was serviced if needed.
Miners cleaned the continuous mining machine , changed the bits on
the machine, checked water sprays, closed off the machine,
cleaned off any rock that may have fallen on the heads, and
cleaned coal off the heads. The crew returned to the kitchen to
put away tools and pick up their lunch buckets and coats . Miners
continued to carry or wear the pump while walking to the kitchen.
Then the crew went to the mantrip and rode toward the elevator.
The miners testified that they handled the pumps in the same
manner as on the mantrip ride into the mine. If miners were
wearing the pump, they left it on and if they were carrying it,
they continued to carry it.
Different section foremen had different "rules" (and some
had no "rule" at all) regarding who would bring the pump out of
the mine at the end of a shift -- sometimes the miner brought the
pump out and sometimes the section foreman brought it out .
Section foremen who carried the pumps out of the mine received
the pumps from the miners at various locations , e.g. i at the
mantrip before leaving the section, on the mantrip during
transit, at the end of the mantrip ride (sometimes pumps were
left on the mantrip), at the bottom of the elevator, or at the
top of the elevator. Generally, the sampling head was clipped to
the nipple outlet on the pump body with the hose hanging. The
pumps were normally running when the section foremen received
them. The section foremen carried pumps out of the mine in a
variety of ways, e.g., in their hands, set on top of the battery
in front of the operator's compartment on the mantrip, inside
their zipped up coveralls with the sampling head outside their
coveralls, or clipped to their belt with the sampling head
clipped to their collar or coveralls.
When section foremen brought pumps out of the mine, they
generally turned off the pumps at the top of the elevator. After
getting off the elevator, the section foremen gave the pumps to
Snyder (usually after daylight and midnight shifts), · generally

867

with the sampling head clipped to the nipple outlet. If Snyder
was not there, the section foremen set the pumps on the lampman's
counter or mechanic's box in the lamphouse, or took . them to the
section foremen's office and set them in one of the raised-lid
desks with the sampling head clipped to the nipple outlet. A
section foreman may have found another pump left in the desk by
the section foreman from the previous shift (generally, three
section foremen shared each desk}. The section foremen placed
other things in their desks, e.g., a hammer, thermos, lunch
bucket, belt, coat, etc. Some section foremen were careful not
to throw things into their desks or place things on top of the
hoses. Some were not so careful. Sometimes desk lids have
fallen on top of hoses that were hanging over the desk's edge.
Generally, miners were in a hurry when travelling from the
mantrip to the elevator. They walked a little faster than
normal, but did not run. When miners carried the pump on the
elevator, the sampling head was usually clipped to the nipple
outlet with the hose hanging. Some miners wrapped the hose
vertically around the pump body and clipped the sampling head to
the nipple outlet. Other miners wore the pump on the elevator.
If Snyder was at the top of the elevator, miners handed their
pumps to him as they returned to the lamphouse. Snyder put the
pumps in a carrying box set either beside him on the floor or on
top of the mechanic's box. If Snyder was not there, miners gave
the pumps to their section foremen or set them on the mechanic's
box or lampman's counter, with the sampling head clipped to the
nipple outlet or the wire mesh cage above the lampman's counter
or standing beside the pump body (not fastened to anything).
After putting their equipment away, the miners went to the shower
room and then left the mine property.
All of the miners and section foremen testified that they
had never seen tampering with the pump or dust samples at Urling.
Like all underground coal mines, the environment in Urling
is harsh and confined. I find as facts that the dust dislodgment
patterns on the cited tilters could have resulted wholly or
partly from the handling of the sampling assemblies by the miners
being sampled. Specifically, they could have resulted from pumps
falling to the mine floor from the remote box or from miners'
belts, from pumps being detached from the hoses and falling to
the floor, from hoses being snagged on objects in the mine, from
hoses being pinched on the mantrip, from hoses being impacted by
other pumps on the lampman's counter or the mechanic's box, or
from hoses being wrapped around pumps.
B.

THAXTON CLASSIFICATION OF URLING FILTERS

Robert Thaxton reviewed the 75 cited Urling filters and the
three filters classified as no-calls in October 1993 in
preparation for his testimony at the mine-specific hearing. In

868

his examination of the filters, Thaxton used a lighted magnifying
glass, a microscope, a ruler, and tweezers. He prepared a report
which was received in evidence as G-505 and G-505A. Thaxton had
previously systematically examined the same filters on two
previous occasions prior to the common issues trial and had
viewed them at various other times when the filters were examined
by mine operators' experts. Thaxton is of the opinion that the
dust deposition appearances of the filters have changed over
time, some slightly and some "very dramatically." Tr. 882. In
some cases the changes have affected Thaxton's ability to
evaluate the filters, i.e., "to make the same call that [he] did
four and a half years ago . . • • " Tr. 884. The preamble to his
October 1993 report concludes: "Stated plainly, the filters do
not look as they did when received in late 1989 and early 1990."
G-505, p . 2. However, Thaxton did not identify any of the Urling
filters which had so changed in appearance that he could not
"make the same call" that he previously made.
For the purposes of testifying in this case, Thaxton divided
the 75 cited filters into seven groups (A .through G) in
accordance with the general overall appearance of each filter.
G-532. What were considered representative filters from each
group were exhibited in the courtroom, and were viewed (some
under a microscope) by counsel and the court.
The October 1993 report considered each of the 78 filters
and indicated under which tamper code it was originally
classified, and the tamper code assigned following Thaxton's
March 1992 review. For each filter the report provides six
"statements": the center characteristics; a comparison of the
dust inside the central dislodgment to that outside; the
appearance of a "keyhole"/"dagger"; the physical condition of the
filter including the existence of a dimple; the general
appearance of the filter deposition; and the most probable cause
for the citable appearance. Thirteen of the filters were
originally classified under tamper code 1, 59 under code 2, one
under code 5, two under code 7, and three under code 11
{no-calls). Of the 59 under tamper code 2, seven were
reclassified in March 1992 to tamper code 3. Of the "statements"
in the 1993 report, the "first two . • • are the main
characteristics . • . (in] making a determination of whether a
filter would be cited or not." Tr. 878.
With respect to eight of the filters cited under tamper
code 1, "statement 2" indicates that the dust inside the
6-millimeter ring "is lighter in approximately 1/3 of the circle,
balance is nearly the same as that outside ring." In the case of
one filter, the dust inside the ring is lighter in approximately
one-half of the circle. Three filters are stated to have dust
inside the 6-millimeter center that is "slightly lighter" than
the dust immediately outside. However, filter 368209 classified
under tamper code 1 is described in statement 2 as having "[d]ust

. 869

inside 6 mm center • • • much lighter than that outside." These
conclusions are inconsistent with Thaxton's testimony at the
common issues trial to the effect that in tamper code 1 filters,
the dust inside the central area is not essentially. different
from that immediately outside. CIT Tr. 181. Statement 6 is the
same for all the filters classified under tamper code 1: "Most
likely cause of central area disturbance is the result of a
reverse flow of air such as would be produced by blowing into the
cassette outlet by mouth."
In the case of 47 of the filters cited under tamper code 2,
the dust in the 6-millimeter center is described as much lighter
than that outside the center; seven of these were reclassified as
tamper code 3 in March 1992. Two tamper code 2 filters are
described as lighter within the center; six as slightly lighter,
three as lighter in approximately one-third of the center circle;
and one as having a center area "all nearly white." The cause of
the dust disturbance in the case of all but one of the 59 filters
originally cited under tamper code 2 is stated to be "reverse
flow of air such as would be produced by blowing into the
cassette outlet by mouth." Seven of these have an alternate
cause: "or through the application of a mechanical means." The
latter show a greater degree of dust removed in the central area
than the other 52. The cause of the dust disturbance in filter
369204, cited under tamper code 2, is stated to be an object
applied to the filter to remove dust.
Filter 324842 was cited under tamper code 5. It is
described as having a 6 to 8-millimeter center with lighter dust
inside the center. The most likely cause of the center area
disturbance is stated to be a liquid being applied to the filter
cassette.
Filters 325329 and 325635 were cited under tamper code 7.
They are described in one case as having lighter dust in
approximately one-third of the center circle, and on the other as
having slightly lighter dust inside the center than immediately
outside. In both cases the cause of the central area disturbance
is stated to be reverse air flow such as would be produced by
blowing into the cassette outlet by mouth.
Filters 323857, 325233, and 325613 were classified under
tamper code 11 and were not cited because there was no
discernible difference in the color of the dust deposited inside
the center area and that outside. The distinction between some
of the filters cited under tamper code 1 and no-call filters is
very difficult to discern. The common issues decision described
cited filters under tamper code 1 as those where the degree of
dust removal in the center portion of the filter is not
significantly different from that immediately outside. 15 FMSHRC
at 1461. No-call filters were described as those not exhibiting
"that degree of dust removal that [Thaxton] would feel

870

comfortable" in citing. Id. at 1466 (quoting CIT Tr. 139) . In
describing the three no-call filters of Urling, Thaxton testified
that the dust deposition inside the lighter ring is nearly the
same as that outside the ring. Tr. 92 7-32.
In G-505, filter 325300 is described as having a welldefined center nearly white in color 6 millimeters in diameter in
alignment with the inlet. The most likely cause of the central
area disturbance is stated to be a reverse flow of air applied to
the back of the filter cassette as would be produced by blowing
by mouth or through the application of a mechanical means.
Exhibit G-532 places filter 325300 in group G which is described
as having a well-defined center disturbance from physical
contact. In his testimony Mr . Thaxton stated that filter 325300
(and 369204] "have characteristics that could be classed as
contact marks. That is that something may have been inserted
into the inlet opening of the cassette to affect (sic ] dust
removal as opposed to strictly reverse air • . . . " Tr. 1004.
When asked about the discrepancy in the descriptions of the cause
of the dust dislodgment, Thaxton stated that
[F]ilter 325300 has the characteristics that would fit
something coming in contact with the filter from being
inserted through the inlet opening and also vacuuming
the dust off the filter • • • • I just grouped them
together for ease in discussion . That does not mean
that there's any hard and fast -- all the ones in my
report
• have to be described exactly the same way
as the way they're grouped.
Tr. 1007.
In the common issues decision, I noted some questions as to
the coherence and consi stency of Thaxton's classification of
citable filters under his tamper codes, but found his overall
classification sufficiently coherent and consistent for the
purposes of the common issues trial. As noted above, I find
inconsistencies in Thaxton's classification of the 78 filters
which are being considered in this proceeding, but in general the
cited filters conform to Thaxton's primary criterion: the dust
inside the 6-millimeter central area generally is lighter than
that immediately outside. But there are possible exceptions.
For example, viewing filters 324070, 324221, 324772, 325311,
325329, and 325357, the dust in the central area, without
considering the keyhole/dagger, appears to me to be essentially
the same as that immediately outside the central area . Further,
it is not clear that the three Urling no-call filters can be
rationally distinguished from the cited filters. And it is still
not clear to me whether Thaxton believes that the appearance on
filter 325300 was caused by reverse air (blowing by mouth or
vacuuming) or by inserting an object in the inlet to remove dust.

871

III.
A.

THE MINE-SPECIFIC TRIAL -- SCIENTIFIC EVIDENCE

THAXTON

At the common issues trial, Robert Thaxton was accepted as
an expert witness in the fields of respirable dust sampling and
in determining normal and abnormal patterns on respirable dust
filters. I accept his judgment that the patterns on the 78
Urling filters are abnormal in that they do not conform to the
normal pattern resulting from dust sampling: a dust deposition
covering the filter more or less uniformly. However, I
previously noted the vague and subjective classification of the
filters into tamper codes, and the tenuous distinctions between
some cited filters and no-call filters.
Thaxton is of the opinion that the dust dislodgment noted on
the 75 cited Urling filters resulted from deliberate acts, in
most cases by blowing by mouth through the cassette outlet. He
bases his opinion on his review of the filters concerning which
mine operators have pleaded guilty to criminal charges of
tampering, on tests that he has conducted, on tests conducted by
others including Dr. Marple, and on his many years of viewing
normal dust d~position patterns on filters. Thaxton is of the
opinion that the use of water sprays and scrubbers would have no
effect on the dust deposited on filters, and would not cause the
dust to be more difficult to dislodge. Tr. 4212-18.
Filter 324842, cited under tamper code 5, and filter 369204,
cited under tamper code 2, are the only cited Urling filters in
which according to G-500 reverse air played no part. Thaxton's
conclusions that the pattern on the former resulted from a liquid
"being applied" to the filter and that on the latter from some
object being applied to the filter to remove dust are based on
tests he performed at Mt. Hope. I have previously discussed his
inconsistent conclusions as to the cause of filter 325300.
With respect to Thaxton's opinion as to the causes of the
abnormal patterns, I stated in the common issues decision that
his tests were nonsystematic and not conducted with scientific
rigor. I further noted that he was not a disinterested witness.
He has not prepared a comprehensive report explaining the
rationale he has followed in ascribing causes to the dust
dislodgment patterns he has described. For these reasons,
although I considered and respected his opinions as to the cause
of dust dislodgment patterns, I gave them diminished weight. I
reaffirm that conclusion with respect to the Urling filters.
B.

MARPLE

Dr. Virgil A. Marple examined the 78 Urling filters,
classified them in accordance with the classification scheme
devised for the common issues trial(~ 15 FMSHRC at 1478-79),

872

and att~mpted to evaluate the mechanisms which created the Urling
filter dislodgments following that protocol. The evaluation
included "fingerprinting" or digitizing the filters to determine
the diameter of the dislodgments and the relative gray values
across the filters. He classified 69 of the cited filters as
Marple type A-1, one as A-2, one as A-3, one as A-2 or c, two as
C, and one as "other" {a water stain pattern) . The three no-call
filters · he classified as type A-3 before he knew they were
no-calls.
As a result of his experiments done for the common issues
trial, Dr . Marple concluded that all type A patterns resulted
from reverse air flow through the cassette . The type A-1 pattern
shows less dust removed than the A-2, and more dust removed than
the A-3 . Tr . 1559 . Marple concluded that the type C patterns
resulted from inserting a vacuum tube into the cassette inlet and
removing dust particles from the filter . His common issues
experimental work created dust dislodgment patterns resulting
from impacts to the filter cassettes which were classified as
types E-1 and E-2 . See G-531. In Dr. Marple's opinion the type
E patterns resulted from different mechanisms than the A and
C patterns shown on G-528. Tr. 1463. Dr. Marple rejected
Dr. Lee's "mixed-mode" theory, discussed infra, as the cause of
the Urling dust dislodgment patterns . In Marple's opinion if a
mechanical impact was the dominant factor involved in causing the
dislodgments, at least some of the filters would resemble
Marple's E patterns. Dislodgments caused solely by reverse air
may have a diffuse ring as Dr . Marple's common issues experiments
showed. In Dr. Marple's report for the Keystone trial {G-508),
he reached no conclusion as to whether the "liquid spot" filter
324842, classified as "other," resulted from deliberate conduct.
None of Dr. Marple's experiments had produced a similar
dislodgment. In his deposition prior to the Urling trial,
Dr. Marple repeated that he had not reached a conclusion as to
whether this dislodgment pattern resulted from a deliberate act
or extreme mishandling. On cross-examination at the Keystone
trial after he had learned of Mr . Thaxton's opinion that the
pattern resulted from a liquid being applied to the filter,
Dr . Marple found the filter to be "suspicious" and concluded that
if it were accidental, the stains would have extended to the
filter's edge . It appeared to him that "some kind of liquid had
been put in and it could've been from something like an absorbent
material stuck in the inlet and moistened, tried to lift off the
particles and come back out, and continually had been left on the
horizontal plain (sic] until it had dried." Tr. 1621.
Following his examination of the Urling filters and
considering the experimental work previously performed,
Dr. Marple concluded that the dislodgments were not created
during normal dust sampling, that reverse air flow was the cause
of 71 or 72 of the cited filters, that a vacuum or probe
withdrawing particles caused two or three, that impacts to the

873

cassettes did not cause the dislodgments, and that at least 74 of
the 75 dislodgments resulted from deliberate acts or extreme
mishandling of the sampler.
Following receipt of Or. Lee's report (R-2001), Or . Marple
performed a series of tests entitled vehicle/carrying case
vibration tests . Ten filter cassettes loaded with 1 to
2 milligrams of laboratory generated dust were inserted in
sampling heads connected to pumps and were put in a pump carrying
box and placed in the cargo bed of a pickup truck. The pumps
were turned off. The truck was driven 4 miles over a rough
gravel road at a speed of about 40 miles per hour. Four of the
hoses were taped to the box so that about 5 inches of each hose
was held under the box. After the test, the filters were
examined and did not show any dust dislodgment patterns.
Thereafter, 10 sampling units were carried in a small unsprung
steel trailer pulled by a garden tractor at about 9 miles per
hour over a rough farm field road. Again no dislodgment patterns
were found. The two tests were then repeated with different
sampling units at higher rates of speed and under rougher
conditions. One dislodgment pattern, of a type A-3, resulted
from the second trailer-tractor test. Or . Marple concluded that
"it is very difficult, nearly impossible, to create a
dislodgement by transporting the carrying case, with hoses
underneath the case, in a vehicle." G-509, p. 5. Dr. Marple
also concluded that a mixed-mode dislodgment pattern "from shocks
and reverse air pulses in the hose, is a typical Type A-3 pattern
• • • with dust inside and outside the 6 mm ring being about the
same density . " I.sL..
Or . Marple considered the pump-wrap-and-throw test he
performed for the common issues trial to be a mixed-mode event.
He recalled that only one of the 60 filters used in the test
resulted in a dislodgment pattern, of a type A-3, and he
concluded that "it is extremely unlikely to create a dislodgement
by impacting the hose and filter cassette due to throwing the
assembly onto a table." ~at 6.
Fifteen filters submitted to MSHA from the Urling mine in
the winter of 1992-93 as part of normal compliance sampling were
given to Dr. Marple to measure their threshold velocity. The
measurements were performed in the same way as threshold
velocities were measured in the common issues trial. The Urling
samples were within the range of the mine samples measured for
the common issues trial and their threshold velocities were much
higher than those of the laboratory generated dust used in the
vehicle/carrying case vibration tests. Since the lab dust is
thus more susceptible to dislodgment, this reinforces Marple's
opinion that transporting the sampling equipment by car or truck
is very unlikely to result in dust dislodgments in the filters.

874

Dr. Marple's opinion as to the effect of water sprays on the
susceptibility of dust laden filters to dust dislodgment is
inconsistent. In discussing the threshold velocity .of the Urling
1993 samples he testified:
Well, I don ' t think we really know what it is
about this dust that makes mine dust more difficult to
get off of the filter but it's probably something to do
with the type of sprays that we are using and the
wetness of the particles when it gets down on the
filter.

*

*

*

*

*

*

*

I think the wetness of the particles would have a
major effect which would be related back to the water
sprays .

Tr. 1551.

On rebuttal Dr. Marple testified:

Q. Now, is Doctor Lee right about increased water
volume and pressure mak ing deposits on filters that are
less susceptible to dislodqment?

A.

I don't believe so .

Q. You mean more water spray doesn't make the
dust stickier?
A.

That's right.

Q.

Why?

A. Well, the more water spray we have, it make
[sic ] take out more of the particles, but the particles
that penetrate through the water spray should be
effectively the same independent of the amount of water
• • • • So the ones that do get to the sampler have
not been affected by the water sprays.
Tr. 4145. Dr . Marple further explained that the sampler collects
dust particles that do not contact water droplets. He stated
that if a wet particle got onto a filter it would adhere more
firmly than a dry particle. He was referring to a particle to
which moisture had attached at generation, not after it- had
become airborne. Tr. 4147-49 • .

c. 1&E
On several occasions Dr . Richard J . Lee examined the 78
Urling filters involved in this proceeding and classified the
75 cited filters by R. J . Lee Group type . See 15 FMSHRC at

875

1470-71, 1488-89. Each filter was examined under an optical
microscope and some of the microscopic images were photographed
and included in Lee's report . R-2001. Lee measured the diameter
of the dislodgments using the optical micr~s~ope . Lee classified
43 of the cited filters in the R. J . Lee Group type 1, 24 in type
2 , three in type 3, four in type 4, and one (the liquid spot
filter) in type 5. He further divided the filters into six
qroups (A through F). The first four groups were based on the
size and symmetry of the dislodgment pattern and the sharpness
and dimension of the outer ring ~ Photographs of each group are
exhibited with photographs of no-call, non-void, inspector, and
Lee experimental filters for comparison . Group E are filters
with dislodgments that Lee concluded were caused by handling,
most likely during disassembly at the PHTC . In group F are three
f i l ters wit~ "Qpique artifacts."
As noted above, Dr. Lee believed that the dust dislodgment
on a number of filters (14 cited and one no-call) was caused or
significantly affected by handling , most likely occurring during
disassembly at the PHTC . In my common issues decision, I found
that handling at the PHTC did not cause the cited AWCs.
15 FMSHRC at 1514 . That finding is final and binding as to the
Urling filters, and I therefore am not considering Dr. Lee's
opinion insofar as it attributes any of the cited filter
appearances to PHTC handling.
Lee noted that 57 percent of the Urling cited filters were
classified as Lee type 1 (the dust deposit within the
6-millimeter ring has a color and density similar to the dust
outside the ring), whereas 34 percent of the cited filters
throughout the industry were so classified. He further noted
that 17 . 3 percent of-·the Ur ling filters were classified by
Thaxton as tamper code 1, while 12.6 percent of the cited filters
industry wide were so classified . Lee's prior experiments showed
that Lee type 1 dislodgments . · (and presumably Thaxton tamper
code 1) resulted from small·er impact forces than the other types
because less dust is dislodged . From these data Lee concluded
that deliberate tampering did not occur, but that the
dislodgments were caused by impacts incidental to the handling of
the filters and sampling systems at the R & P facilities. Lee's
experimental filters showed that deliberate blowing through the
cassette outlet causes a sharp 6-millimeter ring, definite dust
dislodgment within the ring, and a high percentage of cones and
dimples. Lee observed that most of the Urling filters have very
little or no dust dislodged, none had cones, and only a small
percentage had possible or slight indications of dimples. Lee
created dust dislodgment patterns on experimental filters by
accidental impacts which patterns he believed were physically
indistinguishable from the Urling filters. He further believed
that the Urling filters were indistinguishable from the general
no-call and non-void filters identified in the common issues
trial. Lee concluded that the appearance and dimensions of the

876

dust dislodgment patterns on some of the Urling filters are
consistent with a mixed mechanical-impact/reverse-air-pulse-byhose-impact mode of occurrence ("mixed-mode"). Under Lee's
theory, the two impacts occur almost simultaneously, within
milliseconds of each other. The mechanical impact tends to
dislodge dust on the outside of the 6-millimeter ring, while
reverse air pulses tend to dislodge dust within the ring. Lee
believed that the filters in his group B show evidence of a
reverse air pulse caused by hose impact followed by a mechanical
impact to the cyclone. He believed that group c show evidence of
a mechanical impact followed by a reverse air pulse. Lee stated
that the filters shown in Group D have such a large mechanical
impact component that the effect of any reverse air pulse is
minimal. In Lee's opinion the handling of the sampling assembly
at the Urling mine and in the R & P dust lab created significant
opportunities for impacts to the sampling head and the hose such
that dust dislodgments could have occurred.
Lee criticized Marple's vehicle/carrying case vibration
tests because only 16 of the 40 hoses were subjected to possible
impact (four hoses were taped under the box and four tests were
conducted), and the weight of the box was distributed over all
four hoses -- effectively cushioning any impact on a single hose.
Dr. Lee was of the opinion that increased use of water
sprays would reduce the susceptibility of filter samples to dust
dislodgment.
(Water sprays) reduce the dust generation . . . •
Increased water will decrease the size
distribution . • • . [T]he first thing that will go
out are the coarser particles. The finer the dust is,
the more surface area the dust, . • . the more
difficult it will be to remove those particles • . . .

*

*

*

*

*

*

*

If the purpose of water is to knock the dust out of
the air, what's getting to the filter?

Q.

A.

Dust.

Q.

Wet dust?

A. If it's coming out of a dust generation point which
has had water spray directly applied, very
likely . • . . [G]enerally I think your filter is
going to come out wet using more water.
Tr. 4087-89.

877 .

On the basis of Dr. Lee's examination of the Urling filters,
his comparison of the Urling filters with experimental filters
and other MSHA non-cited filters, and his consideration of the
mine and laboratory handling (R & P and PHTC) and the mine and
manufacturing variable factors, he concluded that the dust
dislodgment patterns on the Urling filters were not caused by
blowing through the cassette or any other deliberate tampering.
IV.
A.

THE MINE-SPECIFIC TRIAL -- STATISTICAL EVIDENCE

MILLER

Dr. John J . Miller performed certain statistical analyses of
data related to the citations issued to Urling and to the R & P
mines and compared that data to the data for all the mines
contained in the reduced analysis data set received in evidence
in the common issues trial (G-235). This data set, taken from
MSHA's Denver database, included all the dust samples processed
between August 8, 1989 and March 31, 1992, eliminating certain
classes of cassettes for which it could not be guaranteed that
they had been checked for AWCs, and those from mines which had
pleaded guilty to tampering. See G-227. That data was further
reduced by eliminating cassettes from mines which subsequently
pleaded guilty to tampering, and is referred to in this
proceeding as the new reduced analysis data set. G-500.
Dr. Miller found that the overall rate of cited cassettes
for urling was about five times as large as the rate for the
"other" mines (all mines in the new reduced. analysis data set
except those in the "R & P lab group plus Urling"). The rate of
cited cassettes for R & P lab mines not including Urling (R & P
lab mines") was about six times as large as the rate for other
mines.
In analyzing the rate of cited samples, Dr. Miller used
March 26, 1990 as the cutoff date between before and after
periods. This was based on his understanding that R & P's
personnel first became aware on that date that MSHA was voiding
AWC samples. In the before period Urling had 74 cited samples
out of a total of 173 submitted, a cited rate of 42.77 percent.
R & P lab mines had 545 samples cited out of 1,219 submitted, a
cited rate of 44.71 percent. The "other" mines (all the other
mines) during the same period had 2,903 samples cited out of
48,690 submitted, a cited rate of 5.96 percent. The differences
between Urling and other, and between R & P lab mines and other
were, in Miller's opinion, statistically significant. In the
after period Urling had one sample cited out of 552 submitted, a
cited rate of 0.18 percent. In the after period R & P lab mines
had six samples cited out of 3,187 submitted, a cited rate of
0.19 percent. The other mines in the same period had 999 samples
cited out of 141,364 submitted, a cited rate of 0.71 percent. In
Miller's judgment these data present overwhelming evidence that

878

whatever caused cited samples at Urling and R & P lab mines had a
much higher rate of causation than it did in the other mines in
the before and overall periods. Dr . Miller was of the opinion
that the data also provide strong evidence that in .the after
period the rate for other is higher than the rate for R & P lab
mines.
Dr. Miller concluded that the same data provide overwhelming
evidence that the rates of cited cassettes are higher in the
before period than in the after period. The rate shows "a
sudden, dramatic, and final drop to a rate close to zeroAat a
time very close to March 26, 1990 for the R & P Lab mines : The
change is also evident in the plot for the Urling 1 Mine ·alone,
but there is more variability in this plot." G-500, p. 15.
Dr . Miller analyzed the dates that the cassettes were
manufactured as those dates related to the cited rate versus
sample date . He created a data set including all cassettes
manufactured on dates that cassettes used by Urling were . made,
and a data set including all cassettes manufactured on dates that
cassettes used by R & P lab mines were made . For these
cassettes, the cited rates for Urling were eight times higher
than for other· in the before and overall periods, a difference
that Miller found overwhelmingly statistically significant. A
similar result was obtained for R & P lab mines cited rates
versus other cited rates. Thus, Dr. Miller concluded that
manufacture date does not explain the differences in citation
rates . The differences in cited rates between Urling before and
after, and between R & P lab mines before and after remained when
only cassettes made at about the same time were used. The
citation rates were also compared for Urling and R & P lab mines
samples before and after March 26, 1990 by comparing cassettes
grouped into sets manufactured in contiguous time periods. In
both cases, the cited rates in the before period were much larger
than in the after periods . Dr. Miller again concluded that this
shows that manufacture date cannot be used to explain the
observed differences in citation rates.
Dr. Miller prepared a supplemental report (G-527} in
response to the report of Dr. Roth. He used a statistical tool
called the Mantel-Haenszel technique to analyze Dr. Roth's
discussion of the relationship between four manufacturing dates
(May 26, May 31, June 1, and June 2, 1989, referred to as "key
dates" -- when almost 50 percent of the R & P cited cassettes
were manufactured} and AWC citation rates. For R & P lab mines
plus Urling samples before March 26, 1990, the cited rate for
cassettes manufactured on the key dates was 49.93 percent. For
cassettes manufactured on other dates it was 38.21 percent.
However, for cassettes from other mines sampled before March 26,
1990, the cited rate for cassettes manufactured on key dates was
2.5 percent, while the rate for cassettes manufactured on other
dates was 6.23 percent. Thus, in Miller's opinion, the

879

difference in cited rates cannot be explained by the properties
of the cassettes manufactured on the key dates. The
Mantel-Haenszel technique was used to determine the relationship
between two categorical variables -- manufacture date (key date
or other date) and cited status (cited or not cited). The
sampling period before March 26, 1990 was divided into nine
4-week periods. However, the first period (before August 14,
1989) did not have samples used from key date cassettes, although
it had cited AWCs, and therefore was not used in the analysis.
The rates for key date cassettes were higher in four periods and
the rates for other date cassettes were higher in four periods.
The key date cassettes were predominately used in the three
periods with the highest cited rates. Dr. Miller determined that
the Mantel-H~enszel technique fails to show a statistically
significant relationship between manufacture date class (key date
vs. other date) and the cited rate. Therefore, Dr. Miller's
prior conclusion was verified that manufacture date is not an
explanation for cited rate, but sample date is.
B.

ROTH

Dr. H. Daniel Roth plotted the bimonthly rates of AWCs from
August 1989 to ~arch 1992 for Url~ng, R & P lab mines, R & P lab
mines plus Urling, and all non-R & P mines ("other"). He used
bimonthly periods because MSHA follows a bimonthly dust sampling
cycle, and because use of a bimonthly period tends to smooth out
monthly variations and to compensate for small numbers of samples
in any month. Dr. Roth stated that the plots show a strong trend
of declining rates over virtually the entire study period. The
decline at R & P including Urling is similar to the pattern of
decline for all other mines. In Dr. Roth's opinion the rate of
cited AWCs is statistically significantly higher before virtually
any cutoff date in the study period than after that date, and not
just March 26, 1990. Roth compared rates for Urling, for R & P
lab mines, and for R & P lab mines plus Urling before and after
the 15th day of each month from October 1989 to December 1990.
R-2004, attachments E, F, and G. For each of the dates
considered, Roth found the rate statistically significantly
higher in the before period than in the after period.
Roth also plotted the rate of cited AWCs versus the date of
manufacture of the cassettes and found that AWC rates in general
were lower for cassettes manufactured on later dates than for
those manufactured on earlier dates. This suggested to Roth that
manufacturing variables may have been a factor in Awes. In fact,
according to Roth, the high rate of AWCs at R & P may be
attributable to cassettes manufactured on four consecutive dates,
May 26, May 31, June 1, and June 2, 1989. For R & P lab mines
plus Urling, the rate of AWCs for cassettes manufactured on those
dates ("key dates") was 49.6 percent of all cassettes used as
compared to 5.8 percent on other dates of manufacture. Even
though only 15.6 percent of the cassettes used at R & P lab mines

880

plus Urling were manufactured on those dates, they account for
59.3 percent of the cited samples. For Urling, the AWC rates for
key date cassettes was 46 . 9 percent as compared to 4.8 percent on
other dates of manufacture. In addition, even though only
13.2 percent of the Urling cassettes were manufactured on the key
dates, they accounted for 60 percent of the cited samples from
the mine . Even if a comparison is made of cassettes sampled
before March 26, 1990 at R & P lab mines plus Urling, the .rate of
AWCs for key date cassettes is 49.9 percent compared to
38.2 percent for cassettes manufactured on other dates. Roth
concluded that this difference is statistically significant . In
Dr . Roth's opinion, this analysis indicates something anomalous
about cassettes manufactured on those four dates.
Dr . Roth did a regression analysis on weekly data from July
1989 through March 25, 1990 for Urling, R & P lab mines, and
R & P lab mines plus Urling. R-2131A corrected as R-2136.
Regression analysis as used here is a method of summarizing the
trend of AWC rates. See 15 FMSHRC at 1520. For R & P lab mines
plus Urling Roth concluded that the trend of decline over time is
statistically significant . It is not so for R & P lab mines
alone or for _Urling, though in both cases the overall trend of
decline is observed. Dr. Roth then did a weighted regression
analysis to take into account the different amounts of data in
the weekly periods. See R-21 31B. With the weighted regression
analysis, Roth found the weekly AWC rates to be statistically
significantly declining throughout the before period (before
March 26, 1990) for Urling, R & P lab mines, and R & P lab mines
plus Urling. Roth also did a regression analysis using September
1989 as the starting date rather than July . R-2131C corrected as
R-2137. Again, he concluded that the rates are statistically
significantly declining .
Dr. Roth criticized Dr. Miller's use of the Mantel-Haenszel
technique as inappropriate for this case. Dr. Roth stated that
the Mantel-Haenszel technique is properly used to compare
independent studies which provide different results . This case
on the contrary exhibits, according to Roth , an arbitrary
selection of data dependent on one another in a single study. To
show how Miller improperly used the technique, Roth applied the
Mantel-Haenszel technique to the data using four periods of
8 weeks each rather than the eight periods of 4 weeks used by
Miller. He chose the 8-week periods because they more closely
conformed to the bimonthly sampling periods . Following this
procedure, Dr. Roth produced results which he found were
statistically significant, though Dr . Miller ' s were not. This
suggested to Roth that Miller's data were "sliced too thin . "
Further, in Dr. Roth's opinion Dr . Miller improperly eliminated
data (30 cassettes) from July 1989 because they were not key da te
cassettes. Dr. Roth stated that the Mantel-Haenszel technique
requires the use of all available data.

881

V.
A.

FINDINGS OF FACT -- DUST SAMPLING AT URLING

HANDLING OF PUMPS AND SAMPLING ASSEMBLIES

Training courses were given to Urling employees certified to
sample for respirable dust on February 6, 1990, February 18,
1991, and May 22 , 1992. R-2069, R-2070, R-2071. The training
did not include any instruction or admonition as to handling
pumps or sampling assemblies.
The parties s tipul ated that the miner operators, miner
helpers, and section foremen generally were not aware of the
institution of t he AWC void code until at least a year after it
was instituted, if at all. Stipulation 108(c). At least some of
the miners and section foremen were aware, however, of an MSHA
investigation of the dust sampling program at or before the time
the void code was instituted. After the section foremen heard
about the investigation, some of them checked the pumps more
often, kept a closer eye on the pump during the shift, and
brought the pumps out of the mine themselves . The miners
testified that they did not make any changes in the way they
handled the pumps after learning about AWCs. The evidence does
not establish that the miners or section foremen significantly
changed the manner in which they handled pumps and sampling
assemblies because of their awareness of the investigation. I
find that they did not, and that any change in dust deposition
patterns on filters in Urling samples after the institution of
the void code is not the result of changes in handling by miner
operators, miner helpers, or section foremen .
B.

CHANGES IN CONTINUOUS MINER MACHINES; INTRODUCTION OF
SCRUBBER MINERS AND WATER SPRAYS

During the period from August 1, 1989 to May 31, 1990, two
kinds of continuous miners were used at Urling : the Lee-Norse
miners operated from controls on the machine, and the Joy miners
operated from a remote control box {some Joy miners could be
operated from the remote control box or from controls on the
miner). The Lee-Norse miner vibrated when cutting coal, so that
the sampling head attached to the canopy swayed back ~nd forth
and contacted the canopy post. I find that this could have
caused or contributed to abnormal dust patterns on Urling
filters.
Scrubber systems were installed on the Joy miners, being
qradually phased in beginning on or before August 1, 1989 . Using
scrubber-equipped miners, Keystone could take cuts of coal
qreater than 20 feet, up to 37 feet, depending upon mining
conditions. A scrubber system controls dust while mining by
sucking up the dust and discharging it through a filter system.
It has a discharge line that runs out of a sump and continuously
dumps water on the mine floor . In addition to the water sprays

882

that conventional miners have, scrubber miners have blocking
sprays designed to keep the air current from by-passing the
exhaust of the scrubber system. A scrubber miner uses from 6 to
8 gallons per minute more water than a non-scrubber miner. As I
indicated earlier, the expert witnesses disagree as to whether
the use of scrubbers and water sprays has any effect on the dust
deposited on the filter. I am persuaded that it does have an
effect. I find that the dust deposit on filters when a scrubber
miner is sampled is damper, has a higher threshold velocity, and
is more difficult to dislodge. This could have been a factor in
the decline in the number of AWCs in late 1989 and early 1990.
In a related matter, I find that the north sections of the
Urling mine are in general wetter than the south sections and
that overall the mine is wetter in 1993 than it was in 1989 and
1990. Therefore, samples taken from the north sections are less
susceptible to dust dislodgment than those taken from the south,
and samples taken in 1993 are less susceptible to dust
dislodgment than those taken in 1989 and 1990 . However, the
evidence does not permit me to conclude whether these facts
contributed to the decline in the number of AWCs in late 1989 and
early 1990.
C.

OTHER MINING CONDITIONS

The north end of the Urling mine generally has a higher coal
seam than the south end, although the height may vary even within
the same section .

Miners have encountered binder {a layer of

rock) in the coal throughout the mine, but at present there is
more binder in the north end of the mine. Also at the present
time, the roof in the n·o rth end of the mine is sand rock and in
the south end is shale. Roof stability varies from section to
section and within sections. A miner operator testified that the
roof was "pretty bad" in 1989 and 1990. Tr. 334.
over the past few years, Urling has replaced the mantrips
used in the mine . The old mantrips had metal seats while the new
ones have vinyl, plastic, or canvas-like seats, more leg room,
and are more comfortable.
However, the evidence does not establish that the height of
the coal seam, the presence of binder, the roof conditions, or
the mantrip changes were related to the deposits on respirable
dust samples or to changes in the character of those deposits. I
find that none of these conditions contributed to the character
of the respirable dust deposits on filters during the period
relevant to this case.

883

D.

HANDLING OF PUMPS. SAMPLING ASSEMBLIES, AND CASSETTES BY ESD

The only equipment changes in ESD's handling of samples in
1990 were the replacement or reconstruction of the· pump carrying
boxes and the addition of wire ties to the sampling heads. ESD
began to use the new carrying boxes in April and May 1990. The
new boxes were more square with higher sides and closed-in ends.
They carried eight pumps. The old 10-pump boxes were discarded
and the old four-pump boxes were reconstructed with higher sides.
In the new boxes, the sampling heads were clipped to a metal rod
and the pump bodies sat side by side rather than end to end.
Although the hoses did not hang out of the ends of the new boxes,
they still protruded below the bottom of the boxes on the sides
but not as far as they did with the old boxes. Eget testified
that it was very likely that hoses could get caught under the new
boxes as well as the older ones. However, it was less likely
that hoses would be impacted under the new boxes because of their
configuration and size . In April or May 1990, the ESD attached
wire ties on all the sampling heads in an effort to tamper-proof
the sampling assembly. The cassette could not be removed without
breaking the tie. Because these changes occurred sometime after
the initiation of the void code, their significance to this case
is questionable.
Eget was off work because of a back condition in April 1990.
He did not pick up pumps and samples from approximately April 9
to May 10, 1990. Eget testified that he did not change the way
he handled the pumps or samples after he learned of the void
code. In particular, he did not change the way he lifted pumps
into the back of his vehicle. Houck testified that the tangled
mass of pumps and hoses on the ESD table did not change after the
void code. Snyder testified that he handled the pumps more
carefully , that he no longer put pumps on the mechanic's box, and
that he no longer carried the pumps by the hoses . He was
uncertain as to the timing of these changes . Hollern and
Bolinger stated that they handled the pumps and sampling
assemblies more carefully after the AWC notices. Gleditsch
stated that he was more careful in handling the samples beginning
in the Spring of 1990, that he discontinued carrying the pumps by
the hoses, and that he no longer put the pump carrying box down
roughly or caught hoses in his car door.
The evidence establishes and I find as facts that there were
changes in the handling practices of ESD personnel beginning in
the Spring of 1990. Specifically, Eget, who handled the sampling
equipment in a rougher manner than the others, did not pick up
pumps and samples from April 9 to May 10, 1990. Snyder and the
other dust technicians were more careful in their handling and
carrying of pumps and hoses, and, in particular, were careful to
avoid hose impacts because of the MSHA dust sample investigation.
These changes could have been factors in the decrease in the
number of cited AWCs in the Spring of 1990.

884

E.

CHANGES IN CASSETTES AND HOSES

1.

FILTER-TO-FOIL DISTANCE AND CASSETTE MANUFACTURE DATE

In the common issues decision, I found that filter-to-foil
distance varies from filter to filter . I also found that a
filter cassette with a smaller filter-to-foil distance is more
prone to an AWC dust dislodgment pattern than one with a larger
filter-to-foil distance, and that the cited filters had a shorter
filter-to-foil distance than those manufactured subsequently . 3 /
I found that cassettes manufactured before February 13, 1990 had
a much higher rate of AWC citation than those manufactured later .
Of Urling es 75 cited filters, eight filters were from the
MSA 200 , 000 series, which were manufactured between April 20,
1988 and April 3, 1989 , and 67 filters were from the MSA 300,000
series, which were manufactured between April 3, 1989 and
February 13, 1990. See R-2133 . Forty-five of Urling's 75 cited
filters were manufactured on four "key dates," May 26 and 31, and
June 1 and 2, 1989. The remaining 30 cited filters were
manufactured on 12 other dates, ranging from January 21 to
September 30 , 1989. Id.
According ·to Dr. Lee, the absence of 9-millimeter-ring
standoff patterns and the presence of crimping on the Urling
cited filters indicates shorter filter-to-foil distances.
Tr . 3874-79, R- 2001. Lee stated that about 20 percent of the
Urling cited filters show evidence of crimping, compared with
about 6 percent in recently purchased filters. Dr. Marple
disagrees that 9-millimeter rings indi cate filter-to-foil
distances based on his experiments for the common issues trial .
Tr . 1519-20, 1578-81, G-509 . Marple's tests indicated that even
when filters were resting on the standoff, only 50 percent had
standoff patterns . Therefore, he concluded that the absence of
standoff patterns does not indicate shorter filter-to-foil
distances . Marple did not address the issue of filter crimping .
The Urling cited filters came from the population of filters
with shorter filter-to-foil distances . Although it is not
possible to know the specific filter-to-foil distance for each of
3

In his reply brief the Secretary argues that the charts
/
I relied upon to find in the common issues decision that the more
recent filters had a larger filter-to-foil distance also showed
that they were floppier than the older ones. No expert witness
supported this argument, and Dr. Marple found that the more
floppy filters were associated with smaller filter-to-foil
distances . The evidence related to the question whether the more
recently manufactured filters were floppier than the older ones
is not sufficiently clear to enable me to make a finding one way
or the other.

885

the cited filters, I find that the Urling cited filters more
probably than not had shorter filter-to-foil distances than those
manufactured subsequently. This could have been a factor in the
decline in the number of cited AWCs in the Spring of 1990.
2.

HOSE.SOFTNESS/FIRMNESS

In the common issues decision, I found that the firmness or
softness of the sampling assembly hose may be related to the
formation of an AWC, and that a softer hose is more prone to an
AWC dust dislodgment. I found that the firmness or softness of
the hose varies from sampling assembly to sampling assembly.
Houck testified that there were differences in the softness
or firmness of hoses in 1989 and 1990. He testified that hoses
become more soft and are more easily removed from the nipple
outlet as they age. Houck stated that detergents and hot water
used to clean hoses remove the stickiness and cause hoses to grip
less tightly.
Houck testified that the ESD always kept their equipment in
meticulous condition. He stated that sampling assembly hoses
were replaced ·as needed, e.g., when they started turning yellow .
and got soft, started slipping off the nipple outlet, or became
less than 36 inches in length (hoses would be snipped to cut off
pinholes created by the sampling head clip). Houck stated that
after pumps 81 through 140 were taken out of service in January
1989, those hoses continued to be used on a rotation basis. He
testified that in October 1989, a large batch of hoses was
replaced, but thereafter hoses were replaced gradually. A small
percentage of the hoses replaced in October 1989 was of a firmer
type that had been used since at least 1986.
I find that the sampling assembly hoses at Urling varied in
softness during any given period of time, and that the record
does not clearly establish that either the AWCs or the drop off
in the number of AWCs are explainable by the firmness or softness
of the hoses that were used.
F.

CHANGES IN MSHA CRITERIA FOR DETERMINING AWCs

Keystone argues that changes in AWC selection criteria by
MSHA at or about the time the void code was instituted may
explain the declining rate of AWCs . Beginning in August 1989 the
PHTC examined all filter samples from all coal mines and referred
those believed to be potentially citable as AWCs to Thaxton.
(Beginning in April or May 1989 PHTC had been examining Peabody
filters for suspected AWCs.) Except for l week in late August
when he was assisted by another employee and until October 1989,
the only person examining the filters and referring them to
Thaxton was Lewis Raymond. Beginning in October 1989 other PHTC
personnel who had been trained by Raymond examined filters for

886

AWC appearances. Some suspected AWCs were reviewed by Raymond,
and others were sent to Thaxton without review. Raymond prepared
a written protocol at some time in 1990 with photographs of AWC
filters and normal filters. R-1404. The reviewing employees
were instructed that if the dust pattern did not fall into one of
the photographic examples of AWCs, it was assumed to be valid.
After the void code in March 1990, Raymond began reviewing all
suspected AWCs before sending them to Thaxton. Before that date
Raymond sent all doubtful filters to Thaxton but thereafter he
discarded filters which were abnormal in some way but not
suggestive of AWCs. 15 FMSHRC at 1458-60. Keystone, adopting
the argument put forth by the LOCC in the common issues trial,
argues that there were inconsistencies between the criteria
followed by Thaxton and Raymond in identifying AWCs. It further
contends that after March 1990 "significantly fewer •suspect'
filters were sent to Thaxton for review and citation issuance.
As would be expected, the number of AWCs cited . . . then
dropped." LDCC brief at 23.
However, the inconsistencies between Thaxton and Raymond
were not nearly as great as Keystone contends. The LDCC brief
states that in a comparison session between Thaxton and Raymond,
they "did not -agree on any filter that exhibited an AWC
appearance." LDCC brief at 19. In fact Raymond testified that
they disagreed only on two such filters. Further the changes in
the criteria followed by Raymond in selecting filters to send to
Thaxton affected only 5 percent of the filters. 15 FMSHRC 1459.
on many occasions Thaxton reviewed the PHTC referrals of
suspected AWCs and was satisfied that PHTC was properly referring
filters to him. Thaxton of course made the ultimate decision to
cite or not in each case.
I find that the evidence does not establish that changes in
AWC selection criteria by MSHA at or about the time the void code
was instituted explain any decline in the rate of cited AWCs at
Urling after that date.
G.

OPTIONAL OPERATOR QUARTZ SAMPLES AND MSHA INSPECTOR SAMPLES

The Secretary argues that because R & P submitted optional
quartz samples from which R & P would have no motive . to remove
dust, and none of the samples exhibited AWC appearances, this
confirms his contention that the cited filters resulted from
deliberate tampering . R & P submitted 75 optional quartz samples
from August 1, 1989 to March 31, 1991; 11 were from Urling.
R & P submitted 3,251 compliance samples from July 1, 1989 to
December 23, 1990; 410 were from Urling. Thus the optional
quartz samples represented approximately 2 or 3 percent of the
compliance samples. None of the quartz samples were made
available for inspection or comparison in preparation for .this
case since they were all destroyed in analysis. The persons at
the PHTC who examined the quartz samples for AWC appearances were

88 7

not called to testify. These facts make it impossible to draw
any conclusions from the fact that no AWC appearances on quartz
samples were noted or cited by MSHA.
During the period August 1, 1989 to May 1, 1991, seven
inspector samples taken from Keystone mines (none from Urling)
were found by Thaxton to have AWC appearances (one of them was
classified under tamper code 11 as a no-call). The inspectors
were not called to testify . I am unable to draw any conclusions
from the fact that some inspector samples were found to have AWC
appearances.
VI .

R & P's ENVIRONMENTAL SAFETY DEPARTMENT

In his opening statement, counsel for the Secretary argued
that the evidence would establish that "a person or persons at
the central laboratory were deliberately tampering with the
cassettes being submitted to MSHA." Tr. 14. Because all the
persons who worked in the ESD dust laboratory during 1989 and
1990 were witnesses, it is important to evaluate their testimony
and credibility.
Dennis Hellgren has been Director of Safety for R & P since
February 1989. In that capacity he supervised Donald Eget and
the ESD dust laboratory. Hellgren has been employed in the
safety or training divisions of R & P since October 1976. Prior
to that he worked for the Mining Enforcement and Safety
Administration (predecessor of MSHA) as a training specialist for
18 months.
Hellgren was aware beginning in early February 1990 that
MSHA was investigating R & P's dust sampling program. He learned
that special investigators had interviewed foremen at R & P's
Florence 2 mine. Hellgren contacted an MSHA special investigator
on February 2 and later other MSHA officials to discuss the
investigation. Other R & P foremen were interviewed. Hellgren
discussed the investigation with Eget, and when he later learned
that R & P was under investigation by the United states
Attorney's office, he communicated that information to Eget.
After ESD personnel discovered some filters from R & P's
Heshbon mine that apparently had been tampered with, the Heshbon
superintendent called a meeting on May 24, 1990 to discuss the
incidents. Hellgren was present at the meeting. Randy Thomas, a
Heshbon miner, was also present. Thomas had been employed in the
coal laboratory, adjacent to the dust laboratory in the mid1970's . Thomas stated at the meeting that while working in the
laboratory he had witnessed a dust laboratory employee, Gary
Foehrenbach, directing air from an air hose into a dust sample
cassette . Hellgren testified that he thought it very likely that
Thomas did not see what he believed he saw 15 years previously.

888

Hellgren learned that Robert Anderson, now President of
Keystone and prior to July 1993 Assistant Vice President of
Operations for R & P, had been joking with dust technician
Gleditsch about the MSHA respirable dust investigation. Hellgren
asked Anderson to refrain from such kidding because the dust
technicians felt harassed about the subject.
Hellgren stated that he never observed Eget, Houck, Snyder,
Bolinger, Gleditsch, or Hollern tampering with respirable dust
samples, nor did he authorize or instruct any of them to tamper
with samples . Hellgren testified that he would not tolerate any
type of tampering, and would have fired Eget if he learned that
Eget was tampering. In fact, Hellgren believes Eget to be a
person of integrity who would not himself tamper or tolerate
tampering by his subordinates.
Donald Eget worked for R & P for more than 21 years until
his retirement on December 31, · 1991 . He was supervisor,
Environmental Control commencing in October 1970, when the dust
sampling program was instituted, until his retirement. Eget has
a degree in mining engineering from Pennsylvania State
University.
Eget was responsible for supervising the dust sampling
program in the R & P mines. On a typical day after reporting to
the dust laboratory, Eget would go to the mines and pick up the
pumps with samples taken during the previous afternoon and
midnight shifts. He returned them to the laboratory and with
Shawn Houck prepared the samples for mailing to MSHA. Eget kept
a log book for each mine , viewed each sample through the cassette
inlet after removing the plug, and recorded in the log book what
he saw. Eget recorded his observations as "a form of protection"
in case the filter resulted in a citation so that he could later
explain what he had seen in the filter. Tr. 2373. He also
checked the dust data cards for accuracy.
'
Eget was made aware of MSHA's investigation of the dust
sampling program by Hellgren prior to receiving the first AWC
void notice in March 1990. Many years previously in 1978, Eget
talked to an MSHA inspector and another federal official
concerning an investigation of unusual dust samples at R & P.
Eget testified that he never saw former dust technician
Foehrenbach use an air hose to tamper with dust samples. Eget
was aware of criminal prosecutions involving other coal companies
for tampering with dust samples.
In April and May and again in September 1990, Shawn Houck
discovered and alerted Eget to samples from the Heshbon mine
which had apparently been tampered with. MSHA was notified and
the samples were voided as contaminated. R & P investigated the
incidents but was unable to discover the cause. The September
sample had been tampered with without removing the cassette from

889

the sampling head, since a wire tie had been affixed to the
cassette prior to sampling and had not been removed. Eget and
Houck tested a special R & P sample by injecting air into the end
of the sampling hose. This resulted in a duplication of the
tampered sample. Eget does not recall participating in an
experiment with Houck in which they attempted to remove dust from
a filter by blowing into the cassette.
·
Eget denied that he ever tampered with samples submitted to
MSHA. He stated that he did not see any other dust laboratory
employee tamper, nor would he tolerate tampering by his
subordinates.
Shawn Houck worked for R & P for more than 3 years until he
was laid off December 7, 1990. He was initially hired as a
calibration technician and later became a dust technician. He
was not certified for underground dust sampling. In 1989 and
1990 Houck's duties included preparing the dust pumps for the
dust technicians; cleaning the pumps, sampling heads, and hoses;
laying out the cassettes for Eget's inspection; and completing
the dust data cards.
When R & P received notice of the AWC void code on March 26,
1990, Houck discussed its meaning with Eget. Houck previously
had heard of the MSHA investigation of the dust sampling program
when an investigator contacted Bolinger.
Houck testified that he and Eget "way before any of this
ever occurred" conducted an experiment on a special cassette to
see whether blowing through the outlet would result in a weight
loss. No significant weight loss was detected and Houck did not
consider the experiment important . Tr. 2191-93.
Houck discovered the three samples from the Heshbon mine
that apparently had been tampered with, one in April, one in May,
and one in September 1990. After the May incident, wire ties
were affixed to the sampling heads to prevent removal of the
cassette without breaking the wire. The September sample had
apparently been tampered with without removing the cassette.
Houck and Eget using a special test cassette forced air through
the assembly hose and created a filter similar in appearance to
the September Heshbon filter.
Houck denied that he ever tampered in any way with samples
submitted to MSHA. He denied ever seeing anyone else tamper with
the cassettes.
Douglas Snyder has been employed by R & P since May 1979,
and has been a dust technician since March 1980. He has been
responsible for the dust sampling at Urling since 1980. After
Houck was laid off in December 1990, Snyder and the other dust
technicians were responsible for cleaning and assembling the

890

pumps and sampling assemblies, and filling out the dust data
cards.
In February 1990, prior to R & P's receipt of the first AWC
void notice, .Snyder heard that MSHA investigators were conducting
an investigation of white centers in respirable dust samples.
Four designated area samples taken by Snyder were cited
AWCs. Snyder denied that he tampered with these samples in any
way. He denied tampering with any other samples or seeing anyone
else in the dust lab tamper with them .
Robert Bolinger was a dust technician at R & P for about
15 years until he retired in January 1992. At various times he
was responsible for sampling at R & P's Helvetia mines
(Lucerne 6, Lucerne 8, and Lucerne 9) and the Jane and Margaret
11 mines. Before he became a dust technician, Bolinger was a
union miner. He was found to have x-ray evidence of black lung
and worked as a Part 90 miner. In August 1989, Bolinger picked
up dust samples at Urling when Snyder was on medical leave. He
also picked up samples for Eget at various times.
Bolinger learned of MSHA's AWC investigation prior to
R & P ' s receipt of the void code notice on March 26, 1990 .
Thomas Hollern told Bolinger that Florence mine foremen had been
interviewed about dust sampling, and an MSHA investigator came to
Bolinger's home looking for his son, Robert Bolinger , Jr., who
was a section foreman at R & P's Emilie mine.
Bolinger denied tampering with respirable dust samples . He
denied seeing any of the other dust technicians or Houck or Eget
tamper with dust samples. In his testimony, Bolinger expressed
some hostility toward MSHA. He stated that "the whole program
• • • was a bunch of harassment by these [MSHA] people."
Tr. 3069. Bolinger had been decertified once because he
inadvertently put the wrong tonnage on a dust data card when an
inspector was present.
Jack Szentmiklosi was employed with R & P as a miner for
23 years. He formerly was a UMWA safety committeeman. While in
the mine off ice looking at a mine map sometime before October
1992, Szentmiklosi overheard a conversation between Bolinger and
Anderson. According to szentmiklosi, Anderson told Bolinger that
he was in big trouble for tampering with dust pumps . Bolinger
replied that if he fell, he would take a lot of big people with
him. Szentmiklosi later asked Bolinger about the conversation.
According to Szentmiklosi, Bolinger did not want to talk about
it . Bolinger testified that he did not recall hearing Anderson
make such a statement, and he denied making the statement to
Anderson which Szentmiklosi attributed to him.

891

Thomas Hollern was a dust technician at R & P from early
1980 until he was laid off in October 1991. He ~ad been with
R & P since 1975. At the time Hollern was laid off he was
responsible for sampling at the Heshbon and Florence 2 mines. In
1989 and 1990 he sampled at Lucerne 8 and Florence 2. Hollern
had not sampled at Urling since the late 1970s. Early in
February 1990 Hollern was told by foremen at the Florence 2 mine
that they had been contacted by MSHA investigators concerning
dust samples. He also knew of MSHA contacting Bolinger looking
for Bolinger's son. Eget told Hollern of the first Heshbon
tampered sample in early April 1990. Hollern talked to the miner
operator and section foreman, but was unable to determine what
caused the sample. Houck told Hollern of the second Heshbon
tampered sample in which there was no filter paper in the
cassette. The third Heshbon tampered sample showed a small hole
in the filter and the wire tie attached to the sampling head was
intact. Hollern never learned what caused any of these abnormal
filters. Hollern testified that he has never tampered with MSHA
dust samples and has never seen Eget, Houck, Gleditsch, Bolinger,
or Snyder tamper with MSHA dust samples.
Herbert Gleditsch has been an R & P dust technician since
April 1970. He has a bachelors degree in science education and
was a school teacher before working for R & P. During 1989 and
1990 he was responsible for dust sampling in the Emilie mines,
the Jane mine, and the Keystone cleaning plant. On occasion
Gleditsch has picked up pumps from the Urling mine. He was aware
of MSHA's investigation of R & P's dust sampling because a
foreman at Jane mine had been interviewed by an investigator.
Gleditsch testified that he has never tampered with dust samples
submitted to MSHA, that Eget never suggested that Gleditsch
tamper with such samples, and that he never saw Eget, Houck,
Bolinger, Hollern, or Snyder tamper with dust samples. Gleditsch
has been kidded about the dust sampling investiga.t ion. He was
called "Mr. Donut" by an MSHA inspector. Tr. 2685, 2735. The
kidding has upset Gleditsch.
Randy Thomas worked for R & P in the coal analytical lab for
about 1-1/2 years beginning in 1976. He worked for R & P in
other capacities until he was laid off in 1991. The coal
analytical lab was located adjacent to the ESD in the same
building. Thomas testified that in the 1970's he witnessed Gary
Foehrenbach directing air into dust cassettes with an air hose.
According to Thomas, when he asked why Foehrenbach was doing it,
Foehrenbach said the miners put dust in deliberately, and he was
blowing the excess particles out as his way of making things
even. While working at R & P's Heshbon mine in 1991, the mine
superintendent stated at a meeting that anyone caught tampering
with respirable dust samples would be punished. Thomas then told
what he had seen Foehrenbach do.

892

Gary Foehrenbach was employed by R & P from 1974 until he
was laid off in June 1993. He worked as a dust technician from
1974 until August 1978. While a dust technician, Foehrenbach
cleaned pumps and cassettes using rags and an air ·hose.
Foehrenbach testified that when he used the air hose to clean
cassettes, the plugs were in the cassette inlet and outlet. He
denies ever using an air hose to remove dust from the inside of a
cassette. Foehrenbach does not recall a conversation with Thomas
in which he told Thomas that he was removing particles from
inside cassettes .
Ray Wygonik is the Manager of Mines for Keystone. He
recalls a conversation in April 1991 with R & P Vice President
Anderson and Gleditsch during which Anderson joked with Gleditsch
that he was in trouble because of the dust sample investigatU>n .
Wygonik sensed that Gleditsch was not taking it well and
suggested to Hellgren that he tell Anderson to ease up.
Robert Anderson has been President of Keystone and Helvetia
since July 1993. He was previously R & P Vice President for
Operations. Anderson does not recall making the statement that
Szentmiklosi said he made to Bolinger. He testified that if he
did, it was in jest. Neither does he recall the conversation
testified to by Wygonik. Anderson testified that he has no
reason to believe that either Bolinger or Gleditsch tampered with
respirable dust samples.
VII.

RESPIBABLE DUST CITATION HISTORY

From September 20, 1987 to May 15, 1990, Urling received
seven citations for violations of Part 70 mandatory health
standards concerning respirable dust as follows:
30 C. F . R. Section

Number of Citations

70.lOO(a)
70.208(a)

5

2

Urling received two of these citations in 1987, two in 1988,
two in 1989, and one in 1990. The total penalties paid for the
seven citations was $1,568. Urling received a total of 965
citations for all violations during this period (inciuding the
seven) for which $227,533 was paid. See G-541.
During this same period, Keystone (including Urling)
received 54 citations for violations of Parts 70 and 71 mandatory
health standards concerning respirable dust as follows:
30 C. F.R. Section

Number of Citations

70.lOO(a)
70.101

42
l

89 3

70.207(a)
70.208(a)
71.30l(c)

2
8
1

Keystone received eight of these citations in 1987, 22 in
1988, 14 in 1989, and 10 in 1990. The total penalties paid for
the 54 citations was $10,643. Keystone received a total of 4,458
citations for all violations during this period (including the
54) for which $926,769 was paid. See G-542.
Also during this same period, R & P (including Keystone)
received 239 citations for violations of Parts 70, 71, and 90
mandatory health standards concerning respirable dust as follows:
30 C.F.R. Section

Number of Citations

70.lOO(a)
70.101
10.202(a)
70.207(a)
70.208(a)
70.208(c)
70.209(c)
70.220(a)
70.400
71.100
71.205(b)
71.208(a)
71.220(a)
71.JOO(a)
71.30l(c)
90.100
90.103{a)
90.300

115
11
4
26
36
6

5
3

10
5
1

5
1
1
1

7
1

1

R & P received 22 of these citations in 1987, 101 in 1988,
83 in 1989, and 33 in 1990. The total penalties paid for the 239
citations was $42,103. R & P received a total of 8,904 citations
for all violations during this period {including the 239) for
which $1,577,905.20 was paid. See G-543.
In 1988, the ESD processed 2,826 respirable dust samples to
satisfy Parts 70, 71, and 90. In 1989, the ESD processed 2,248
such samples. R-2049. Less than 4 percent of R & P's respirable
dust samples were cited during these 2 years preceding initiation
of the void code.
The small percentage- of citations and relatively modest
amount of the penalties paid for violations of the respirable
dust standards during the 2 years preceding initiation of the
void code do not indicate a significant respirable dust citation

894

problem which could arguably have motivated tampering with the
samples.
Furthermore1. Hellgren testified that under the provisions of
R & P's coal sales agreements, any penalty assessments, including
assessments for respirable dust violations, were passed on to the
utilities purchasing the coal.
ULTIMATE FINDINGS AND CONCLUSIONS OF LAW
I.

THE STANDARD OF PROOF

The same evidentiary burden is applicable in the Keystone
mine-specific case as was applicable in the common issues trial:
the Secretary must prove by a preponderance of the evidence that
the 75 cited Urling filters resulted from intentional tampering.
I have to consider all the evidence introduced in the common
issues trial and in the Keystone trial in determining whether he
has carried that burden.
The parties do not disagree as to who has the burden of
proof in this·, case or what the burden entails in principle. The
essential agre~ment is obscured by some rhetorical fog however.
The Secretary: Keystone's argument "is a brazen attempt to
elevate the burden of proof well beyond the established level for
civil proceedings." Secty•s brief at 3. Keystone: "It is time
that the Secretary's attempt to cobble together a case out of
inference and innuendo be rejected . " Keystone's brief at 15.
Both parties cite the Commission's opinion in Garden Creek
Pocahontas Co . , 11 FMSHRC 2148 (1989), which laid down the
following rule for burden of proof:
The Mine Act imposes on the Secretary the burden of
proving the violation the Secretary alleges by a
preponderance of the evidence . • . • The Commission
has recognized that in certain circumstances the
Secretary may establish a violation by inference
. . . •
Any such inference, however, must be
inherently reasonable and there must be a rational
connection between the evidentiary facts and the
ultimate fact inferred.
~at

2152-53 (citations omitted).

The burden of proving by a preponderance of the evidence
requires the party bearing the burden to convince the trier of
fact "that the existence of a fact is more probable than its
nonexistence • • • • " Concrete Pipe and Products of California,
ln£.!. v. Construction Laborers Pension Trust for Southern
California, 508 U.S.
(1993}, 124 L.Ed . 2d 539, 563 (citation
omitted). To preponderate, the evidence must be sufficient to
convince the trier of fact that the proposition asserted is more

895

likely true than not true. See, ~' Hopkins v. Price
Waterhouse, 737 F. Supp. 1202 (D.D.C. 1990), aff'd, 920 F.2d 967
(D.C . Cir. 1990); Merzon v. county of Suffolk, 767 F. Supp. 432
(E.D . N.Y. 1991); Smith v. United States, 557 F. Supp. 42 (W.D.
Ark. 1982), aff'd, 726 F.2d 428 (8th Cir. 1984). Preponderance
of the evidence means "the greater weight of evidence, evidence
which is .more convincing than the evidence which is offered in
opposition to it." St. Paul Fire & Marine Ins. Co. v. United
States, 6 F.3d 763, 769 (Fed. Cir. 1993) (citation omitted).
Where the evidence is equally balanced "or if it cannot be said
upon which side it weighs more heavily, plaintiff has not met his
or her burden of proof . " 557 F . supp. at 52.
All of the evidence must be given appropriate weight,
whether it be direct or circumstantial, testimonial or written,
expert or lay . Circumstantial evidence may prove an ultimate·
fact "if upon consideration of all the circumstances revealed by
the evidence [the trier of fact is ) satisfied that in logic and
common experience the ultimate fact is more likely than not to
follow from the fact proved." Selle v. Gibb, 567 F. Supp. 1173,
1182 (N.D. Ill. 1983), aff'd, 741 F.2d 896 (7th Cir. 1984).
In the common issues trial, conflicting expert scientific
evidence was i -n troduced concerning the possible and probable
causes of the abnormal filters. Conflicting expert statistical
evidence was introduced concerning the meaning of the rate of
cited AWCs and the decline in the rate of cited AWCs. I excluded
evidence concerning min~ handling practices precisely because
such practices vary from mine to mine and therefore do not raise
"common issues . " I held that on the basis of the evidence
introduced in the common issues trial, the Secretary failed to
establish by a preponderance of the evidence that the cited
filters resulted from intentional tampering. I left for minespecific trials consideration of the sampling practices at
individual mines and the relationship of those practices to the
question of tampering .
The burden of proof remains with the Secretary throughout
this proceeding. He must prove by a preponderance of the
evidence that Keystone tampered with the cited samples. Keystone
does not have the burden of establishing that the appearances on
the samples resulted from some other cause.
·
II.

ISSUANCE OF THE CITATIONS

The Keystone citations, like all the other citations in the
consolidated cases, were issued because Robert Thaxton concluded
that the dust deposition patterns on the cited filters evidenced
tampering. Thaxton believed that the abnormal appearances of the
dust in the center of the filters were similar to those that he
had experimentally created by reverse air tests in 1983. He did
further testing in 1989 after an abnormal abatement sample was

8 96

received from Peabody Coal Company. Peabody was indicted and
eventually pleaded guilty to tampering with respirable dust
samples. On the basis of his tests and a comparison. with Peabody
filters, Thaxton concluded that the abnormal appearances did not
result from normal sample collection in the mines but from
intentional tampering involving the introduction of reverse air
into the dust laden cassette or the insertion of a foreign object
designed to remove dust from the center of the filter. I
previously stated that Thaxton's conclusions were not supported
by systematic scientific experiments . Subsequently such
experiments were performed by Ors . Marple, Rubow, Lee, Grayson,
and McFarland .
I conclude on the basis of Robert Thaxton's studies that the
appearances on the cited Keystone filters did not result from
normal sampling in the Urling mine. Something occurred in the
mine or thereafter to cause the abnormal appearances. But
Thaxton's conclusions that what occurred was intentional
tampering is to a considerable extent subjective. Thaxton did
not prepare a comprehensive written protocol based on scientific
testing relating specific appearances to different kinds of
tampering. Further, the distinction Thaxton has made between the
appearances of the cited filters and many of the no-calls is
tenuous at best. I reject the Secretary's argument that the
decision not to cite those no-calls (a decision related to
Thaxton's feeling "comfortable") is "an appropriate exercise of
the agency's discretion." Secty's brief at 27 . Whether to
charge a coal mine operator and its employees with deliberately
tampering with dust samples so as to falsify respirable dust
levels in the mine must be based on more objective standards.
Therefore, although I accept Thaxton's determination that the
appearances on the cited Urling filters were abnormal, and
although I previously found that his decisions to cite were
sufficiently consistent for the purposes of the common issues
trial, I am not able to conclude on the basis of Thaxton's
reports and testimony t~at the abnormal appearances on the Urling
filters were caused by intentional tampering.
Keystone argues that the delay in issuing the citations
prejudiced its ability to defend itself in these proceedings. In
part this argument was addressed in my orders denying motions to
vacate filed by Southern Ohio Coal Company and others, 14 FMSHRC
928 (1992); Utah Power and Light Company, 14 FMSHRC 1098 (1992);
and Mettiki Coal Corp., 14 FMSHRC 1104 (1992). The record does
not support Keystone's argument that it was prejudiced by the
delay, and I reject the contention.

89 7

III.

HANDLING OF THE CASSETTES AND SAMPLING EQUIPMENT
IN THE URLING MINE AND THE ESD

on the basis of my findings on page 12, supra, I conclude
that the reverse air dust dislodgment patterns on the cited
Urling filters could have resulted from accidental impacts to the
sampling equipment, particularly the hoses, in the Urling mine
during sampling or after the samples were taken. I conclude that
the dust dislodgment patterns did not result from intentional
tampering by miners or section foremen in the mine (nor does the
Secretary contend that they did). on the basis of my findings on
page 8, supra, I conclude that the reverse air dust dislodgment
patterns on the cited Urling filters could have resulted from
accidental impacts to the sampling equipment, particularly the
hoses, while the samples were being handled by R & P ' s ESD lab
personnel. Also, on the basis of my common issues decision, I
conclude that reverse air dust dislodgment patterns on the cited
Urling filters could have resulted from intentional tampering
including blowing by mouth or otherwise directing air into the
cassette outlet or introducing a vacuum source into the cassette
inlet. 15 FMSHRC at 1515. If such tampering occurred, it must
have occurred ,at the ESD lab by ESD employees. Therefore, in
order to determine whether the abnormal dust dislodgment patterns
resulted from deliberate tampering or from incidental and
accidental handling of the sampling equipment, I must consider
and analyze the scientific and statistical evidence, and evaluate
the testimony and credibility of the ESD employees.
IV.

THE SCIENTIFIC EVIDENCE -- THAXTON/MARPLE vs. LEE

Robert Thaxton is not a scientist but has probably examined
more respirable dust filters than anyone in the United states.
He first investigated filters exhibiting what he considered
abnormal white centers in 1983, and it was his judgment that
resulted in the issuance of the more than 5000 citations,
including 75 to Urling, in 1991 alleging intentional tampering.
Dr. Marple and Or . Lee are scientists with impressive credentials
and backgrounds. 4 / Each has spent considerable time and
scientific expertise over the past 3 years in investigating the
abnormal white center phenomenon, and its possible causes. Their
conclusions differ in many respects.
After examining the cited Urling filters, Dr. Marple
concluded that 71 or 72 . of them resulted from reverse air flow
through the cassette outlet, that two or three resulted from a
vacuum source being introduced into the cassette inlet and
removing dust, and one resulted from water being introduced into
the fi~ter. Marple believed his experimental filters created by
4

/
There is no basis in the record to support the
secretary's assertion that Dr. Lee was a biased witness.

898

reverse air were comparable to the 71 or 72 which he classified
as type A, and that his experimental filters created by a vacuum
were comparable to the two or three which he classified as
type c. He further concluded that none of the Urling cited
filters were comparable to Marple experimental filters classified
as type E which resulted from cassette impact. He classified the
water stain filter as other, and originally was unable to ascribe
a cause to it.
Dr . Lee concluded after examining the cited Urling filters
that most showed comparatively slight dust dislodgment from the
central area . The dust within the central ring had a color and
density similar to that outside the ring. None had cones and
only a few had possible or slight indications of dimples. The
dust dislodgrnent patterns resulting from Lee's experiments
involving deliberate blowing of air in the outlet showed sharp
6-millimeter rings with definite dislodgrnents within the ring and
a high percentage of cones and dimples . Lee determined that the
Urling filters had a slightly larger diameter than those created
by deliberate reverse air. On the basis of these considerations,
Dr. Lee concluded that the Urling filters did not result from
deliberate blowing through the cassette.
Dr. Marple disagreed with Dr. Lee that the comparatively
slight dislodgrnents indicated smaller impact forces. Marple
believed that the threshold velocity of the dust on the filter
was the overriding factor in determining its susceptibility to
dislodqment. On this issue I conclude that both threshold
velocity and degree of impact force are important in the
resulting dust dislodgment pattern.
With respect to the water stain filter, Lee stated that in
his opinion it did not result from a wet cotton swab being
inserted in the cassette . Lee stated that unlike Marple's
experimental filters, this filter did not show any marks
indicating swabbing. See 15 FMSHRC at 1478.
When Thaxton reviewed all the cited filters in August 1992,
six of Urling's filters were reclassified from tamper code 2 to
tamper code 3 because of the presence of cones. When Urling
cited filters were examined by Thaxton in 1993 none ~howed cones,
one was described as showing a dimple, and two as having "slight
dimple[s]." Thaxton explained the absence of cones by the fact
that the filter tends to relax over time, resulting in the
disappearance of the cone. Lee disagreed with this conclusion
because he found no indication in examining his experimental
filters that the cone relaxes over time. The testimony of both
Dr. Lee and Dr. McFarland at the common issues trial cast doubt
on Thaxton's judgments as to the presence of cones. ~
15 FMSHRC at 1493 (Lee) and 1504 (McFarland). I conclude that
none of the cited filters exhibited cones at the time the
citations were issued. In itself this conclusion does not mean

899

that the filters were not tampered with, but it does indicate
that the impact forces creating the dislodgments were relatively
slight.
I conclude that the preponderance of the evidence does not
show that the water stain filter (324842) resulted from
deliberate tampering. I conclude that the preponderance of the
evidence does not show that filter 325300 resulted from
deliberate tampering. The Secretary's evidence relating to both
of these filters is inconsistent and unconvincing. I further
conclude that the 73 other cited Urling filters resulted in whole
or in part from reverse air flow through the filter. I conclude
that the reverse air impact forces were generally less than those
created by deliberate blowing through the filter cassette. The
dust dislodgment patterns may have been influenced by impacts to
the cassettes or sampling assemblies as well as reverse air
through the cassettes (mixed-mode theory of Dr. Lee).
V.

THE STATISTICAL EVIDENCE

MILLER vs. ROTH

Dr. Miller and Dr. Roth are both expert statisticians with
impressive credentials. Both have published extensively in the
field of statistics, and both have previously testified as expert
witnesses. Using the same data they have arrived at some very
different conclusions in this case. Their use of the data is
different in two respects: Dr. Miller used March 26, 1990 as the
cutoff date between before and after periods. Dr. Roth saw
"nothing magic" about the March 26, 1990 date. Dr. Miller
generally used weekly periods to compare rates of cited
cassettes. Dr. Roth used bimonthly periods. With respect to the
cutoff date, I conclude that March 26, 1990 is not the most
logical cutoff point. If it is assumed that a change in behavior
resulted from knowledge of the ongoing MSHA investigation, the
evidence shows that the ESD personnel and Keystone management
were aware of the investigation from early February 1990, 6 weeks
or more before the notification of the void code on March 26. I
am attaching to this decision as Appendix A a graph prepared by
Dr. Miller {G-500, attachment A-1) and as Appendix B one prepared
by Dr. Roth (R-2129B). · or. Miller's graph shows the cited rate
by week for Urling from August 1, 1989 to March 31, 1992 with a
vertical line drawn at March 25, 1990. Or. Roth's graph shows
the bimonthly cited rate for Urling from September 1989 to March
1992. I agree with Dr. Roth that it is preferable to use
bimonthly periods to compare cited rates because dust sampling is
done on a bimonthly basis. I agree with Dr. Miller that there
was a sharp decline in the cited rate on or about March 26, 1990. ·
I agree with Dr. Roth that there was overall decline in cited
rates from September 1989 to April 1990. I agree with Dr. Miller
that in general the dates of cassette manufacture do not seem
overall to explain the differences in the cited rate. On the
other hand I agree with Dr. Roth that the fact that 60 percent of·
the cited Urling cassettes were manufactured on four consecutive

900

working days in May and June 1989 is highly suggestive of
manufacturing anomalies on those dates.
I am unable to conclude on the basis of the statistical
evidence that the changes in the rates of cited cassettes at
Urling establishes that a change in the behavior of Urling
personnel was related to their perception of an MSHA
investigation of the respirable dust sampling program at the
mine.
VI.

ESD PERSONNEL -- CREDIBILITY

Unlike the common issues trial this case involves
allegations that specific persons tampered with the cited dust
samples, namely the people employed at R & P's ESD dust lab.
Because all of them testified I have had the opportunity of
observing them and assessing their credibility. Credibility
determinations, of course, are more complex than merely
evaluating demeanor on the witness stand, steadiness of voice,
eye contact, body language, etc . , important though these may be.
In this case credibility must take into account the extensive
factual evidence related to practices in the mine and in the dust
lab, the scientific evidence, the statistical evidence, and the
witnesses' prior knowledge of criminal and civil sanctions for
tampering.
I previously indicated that I consider the violations
charged here to be very serious in that they placed in jeopardy
the health of the miners including those accused of tampering .
The record before me shows that a large number of mine operators
and agents have pleaded guilty to criminal charges of tampering.
So despite what I consider the heinousness of the practice, I
recognize that miners and mine operators have tampered with and
removed dust from respirable dust samples submitted to MSHA.
As a practical matter only Eget and Houck among the ESD
personnel had any substantial opportunity to tamper with the
samples. The dust technicians spent considerable time in
distributing and collecting the pumps and travelling between the
mines and the dust lab. It would have been very difficult for
them to separate the sampling assemblies, remove the cassettes,
and remove dust from the filters. Eget and Houck, on the other
·hand, spent much of their time in the lab and, in the course of
their duties, removed the cassettes from the sampling assemblies.
Eget examined each cassette and viewed the filter through the
cassette inlet.

9 01

What would motivate sl these employees -- Eget, a mid-level
supervisor, and Houck, a calibration technician employed at R & P
for only 3 years, to engage in the seriously illegal conduct with
which they are charged? The Secretary suggests three possible
incentives: first, to avoid penalties for overweight samples;
second, to avoid the irksome chore of resampling if overweight
samples were submitted; and third, to avoid the "enormous
potential costs associated with not achieving compliance."
Secty's brief at 98. The enormous potential costs, according to
the Secretary, may include reworking the mine's ventilation
system, or dust suppression systems, or reducing the speed at
which the continuous mining machine operates. But neither Eget
nor Houck was directly involved in coal production; neither
reported to a production supervisor. Neither would pay any
penalty. Eget and Houck processed dust samples all day every
day. Although resampling would have required additional work, it
would not appear to represent a substantial burden for the ESD.
The Secretary suggests that Eget had a personal incentive to
tamper in that if few dust citations were issued management would
be disinclined to interfere with his unsupervised control of the
activities of the ESD. In themselves, these "incentives" seem
very weak. Considered with the relatively small history of prior
dust violations, they practically disappear. Both Eget and Houck
knew that tampering was illegal. Eget at least was aware that
such acts could result (and had resulted) in criminal sanctions.
I discount the testimony of Randy Thomas that he had
witnessed tampering with dust cassettes at ESD some 15 years
prior to his testimony. I considered his testimony even though
it was remote in time to the tampering charged in this case, and
weighed it in conjunction with the testimony of Gary Foehrenbach
who allegedly engaged in the tampering. I conclude that Thomas
misunderstood what he saw or his recollection was dimmed by the
passage of time, and that what he saw was Foehrenbach using an
air hose to clean sampling equipment. In any event Foehrenbach
has not worked in the ESD lab for many years, and the Secretary
does not implicate him in the violations charged.
I was impressed by the backgrounds of Eget and Houck and
their forthrightness on the witness stand. I have carefully
considered their testimony. Relying on the absence of any
adequate motive for tampering, and the strong disincentive
provided by their knowledge of possible sanctions for tampering,
I accept as truthful the statements of each of them that he did

sl The Secretary argues that he is not obliged to show a
motive for the alleged tampering. But he is obliged to prove
tampering, and motive or its absence may be evidence to show "the
doing or not doing of the act." J. H. Wigmore, The Science of
Judicial Proof 117 (Jd ed. 1937) cited in Garner, A Dictionary of
Modern Legal Usage 366 (1987).

902

not tamper with compliance respirable dust samples submitted to
MSHA.
I indicated earlier that the four dust technicians, Snyder,
Hollern, Bolinger, and Gleditsch, would have had little
opportunity to tamper with the dust samples. And only Snyder
handled the Urling samples. ·snyder and the three other dust
technicians testified in this case and denied tampering with any
MSHA samples. For the same reasons that I accept the testimony
of Eget and Houck, I accept the testimony of Snyder, Hollern,
Bolinger, and Gleditsch as truthful. I do not regard the
testimony of Jack Szentmiklosi as affecting their credibility.
I agree with the Secretary that credibility determinations
cannot be made in a vacuum. My decision to credit the testimony
of Eget, Houck, Snyder, Hollern, Bolinger, and Gleditsch that
they did not tamper with dust samples takes into consideration
not only their testimony, but also the evidence concerning the
handling of dust samples at the mine, and the expert testimony of
Thaxton, the scientists, and the statisticians. I consider these
credibility determinations to be of overriding importance in this
decision.
ORDER
Based on the above findings and conclusions and on the
entire record in the common issues trial and the Keystone trial,
and considering the contentions of the parties, I conclude that
the Secretary has failed to carry his burden of proving by a
preponderance of the evidence that the weight of the 75 cited
Urling filters was intentionally altered by Keystone.
Therefore, IT IS ORDERED
1.

The captioned contest proceedings are GRANTED;

2. Citation Nos. 9860247 through 9860299 and Citation
Nos. 9862821 through 9862842 are VACATED;
3. The petitions for civil penalties based on the above
citations are DENIED and the proceedings are DISMISSEp.
4. All other pending cases in the consolidated docket are
STAYED until further order of the Commission.

J

~~h~~~

James A. Broderick
Administrative Law Judge

Appendices A and B

903

Distribution:
Douglas N. White, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, 600 Grant Street, 58th
Floor, Pittsburgh, PA 15219 (Certified Mail)
Barry A. Woodbrey, Esq., United Mine Workers of America, 900 15th
street, N.W., Washington, D.C. 20005 (Certified Mail)
All others by Regular Mail
/fb

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BIMONTHLY AWC RATE FROM SEPTEMBER 1989 TO MARCH 1992

ATTACHMENT B

.~ ...'= . ..

:B-':tY?R,S

EXHIBIT

PBDBRAL UllB SAPBTr Alll> BBATlrll RBVIBW 0 'NTSSJ:OR
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEES8URG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 2 0 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

ISLAND CREEK COAL COMPANY,
Respondent

..• CIVIL PENALTY PROCEEDING
..• Docket No. WEVA 91-1231
. A.C. No. 46-01309-03786
: North Branch Mine
.

DECISION APEROVllfG Sl'Pl'J.BllBNT
Before:

Judge Melick

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 (the Act). Petitioner has
filed a motion to approve a settlement agreement and to dismiss the case. Respondent has agreed to pay the proposed
penalty of $400 in full. I have considered the representations
and documentation submitted in this case, and I conclude that
the proffered settlement is acceptable under the criteria
set forth in Section llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is
GRANTED, and it is ORDERED that Respondent pay a penalty of

$400 within 30 days of this order.

Distribution:
James v. Blair, Esq., Office of the Solicitor,

U.S. Department of Labor, 4015 Wilson Blvd., Room 516,

Arlington, VA 22203 (Certified Mail)
Marshall s. Peace, Attorney at Law, 157 West Short Street,
P.O. Box 679, Lexington, KY 40586 (Certified Mail)
/lh

907

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5267/FAX (303) 844-5268

APR 2 2 1994
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
on behalf of
MICHAEL BILLINGS,
Complainant

Docket No. CENT 93-157-DM
SC MD 92-12
Bayer Alumina Plant

v.
ALCOA, ALUMINUM COMPANY OF
AMERICA,
Respondent
ORDER OF DISMISSAL

Before:

Judge Morris

The parties reached an amicable settlement in the above case.
I have reviewed the proposed settlement agreement and find it
is reasonable and in the public interest.
Accordingly, I enter the following:
ORDER

1.

The settlement agreement is APPROVED.

2.

The case is DISMISSED.

~J
~~~nistrative

-

orris

Distribution:

Law Judge

Certified Mail

Mary E. Witherow, Esq., Office of the Solicitor, U.S. Department of
Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
Maria Greco Danaher, Esq., LeBOEUF, LAMB, LEIGY & MacRAE, 425 Sixth
Avenue, Suite 1444, Pittsburgh, PA 15219
ek

908

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

APR 2 2 1994
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 93-172-M
A.C. No. 05-04420-05502

v.

Grant Pit

JOHN CULLEN ROCK CRUSHING &
GRAVEL,
Respondent
DECISION

Appearances:

Robert J. Murphy, Esq . , Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
John Cullen, Pro Se, Pueblo, Colorado,
for Respondent.

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. § 801 et seq., the "Act". The
Secretary of Labor on behalf of the Mine Safety and Health
Administration {MSHA), charges John Cullen Rock Crushing and
Gravel, the operator of the Grant Pit, with refusing to allow one
of Petitioner's mine inspectors to inspect Respondent's Grant
Pit, a gravel pit located near Pueblo, Colorado.
After due notice to the parties a hearing was held on the
merits in Pueblo, Colorado. Oral and documentary evidence was
introduced by the parties and the matter was submitted. The
parties declined the filing of briefs or proposed findings of
fact and conclusions of law.
I

The 104{a) citation in question was issued to Respondent by
federal Mine Inspector Lyle Marti . The citation issued by
Inspector Marti charges Respondent with the violation of section
l03{a) of the Act which provides in pertinent part:
"Authorized representatives . of the Secretary
•.• shall make frequent inspections and investigations in coal or other mines •••. In
909

carrying out the requirements of this subsection, no advance notice of an inspection
shall be provided . • . . [and the authorize?
representatives] shall have a right of entry
to, upon, or through any ..• . mine."
The citation issued by Inspector Marti states in pertinent
part:
During the inspection of Grant Pit, John
Cullen, owner-operator, denied me the right
to continue my inspection of the mine
property in accordance with the requirements
of Section 103 of the Act.
At approximately 8:00 a.m. on July 22, 1992,
John Cullen ordered me off the mine property.
It is undisputed that Lyle Marti is an authorized representative of the Secretary of Labor.
II

The Secretary entered into the record in this matter the
"Injunctive Order" of Judge Richard P. Matsch of the United
States District Court, District of Colorado issued June 24, 1993,
in the case of Reich v. John Cullen, individually, and doing
business as John Cullen Rock Crushing and Gravel, Civil Action
No. 92-M-2186. After a full evidentiary hearing on April 29,
1993, in Pueblo Colorado, the Federal District Court found:
[T]he defendant's own statements constitute
a basis for finding that he has interfered
with, hindered and delayed the authorized
representatives of the Secretary of Labor in
carrying out the provisions of the Act; has
refused to admit them to his gravel pit and
refused to permit the inspection of his
business. The Department of Labor is, therefore, entitled to an order of this court in
the nature of an injunction.
Thus, the Federal District court has enjoined Respondent
from denying entry upon his mining operations, from refusing to
permit inspections and from interfering with MSHA inspectors
carrying out their official duties. The Injunctive Order is
attached to this decision as Exhibit A.
III

It is the Secretary's position that the only issue before me
is the appropriate penalty for the established violation of

910

section 103(a) of the Act. While the secretary's position
appears sound, we have in the instant proceeding statements and
admissions volunteered by John Cullen while under oath which
constitutes a solid basis for finding a violation of · 103(a) of
the Act. John Cullen under oath openly and frankly volunteered
the following:
Well, there's no denying I told these people
they should leave, and I damn well meant it.
But I wasn't doing it to violate any law.
I
truly believed that my Constitutional rights
were violated and that these people should
not have that kind of power.
And I still believe that, but I don't think
that trying to stand up for your rights that
a person should be penalized for trying to do
the very best that he can do.
Q When you say you told these people to
leave, you're referring to the inspector who
was making a regular inspection of the gravel
pit?

A Well, I guess. He told -- to tell you the
whole thing here, he left on his own power.
I did not tell him to leave. He told me,
"Hey, I'm leaving. I'm out of here."
Q

Why did he say that?

A Because I was mad, and I ought to have the
right to be mad.
I run the place.

* *

* * *

And I believe that these people -- maybe
they don't know it, but they are going to
ruin the small business of this country.
And I just can't understand why these
people (MSHA Inspectors) have more power than
the FBI or the police or anyone. They need
no reasonable cause. They can make any
amount of regulations that they want,
whenever they want, to enforce those
regulations.
And, you know, I'm in business for myself
because I want to be private and I want to be
independent. And I don't necessarily want
the government telling me what to do. And I

911

believe in that free country. That's more
important to me than life, than this
business, than anything, is to be a free
person and be -- have a country where my kids
could start a business and do as they want to
do.
With respect to the Respondent's financial condition and the
effect of the proposed penalty on its ability to continue in
business Mr. Cullen testified:
Q This gravel business that you are in, is
this an intermittent thing or

A I've made my living off of it for the last
15 years. Sometimes I made a living.
Usually -- I'll tell you, I've been told more
than once to file bankruptcy and get the hell
out, and I just -- we've struggled and we've
struggled and we've struggled.
And maybe now -- I think I own enough
machinery now, but maybe I could recuperate
some of· the money that I've lost, maybe pay
off the second mortgage on my home, and
things like that. But I -- I can't deal with
this -- with this -- I don't know -Q one of the factors in this is your ability
to pay without going out of business or
hindering your business, so if --

A You know, it's hard for me to say. Today
I probably could write a check for $2,000.
Maybe. I'd have to check with my wife, but I
have no retirement. My house is in hock to
the hilt. My machinery needs repairing, and
I have to make a payroll this Friday.
And how should -- should I be allowed to
accumulate anything? Should I be able -- do
you want to take all I have, or shall I -can I just keep a little bit? I don't know
how to address that.

Q -- the purpose of this (assessing penalties) is to get the operator to comply with
the law.
A Okay. I'm going to comply with the law,
because I'll be out of business. I don't
want to be out of business.

912

IV
The operator appears to be sincere in questioning the
authority of federal mine inspectors to enter his mine property
without his permission and make inspections for regulatory safety
violations. He apparently believes that his constitutional
rights are violated and one should not be punished for "trying to
stand up for your constitutional rights." His beliefs may well
be sincere but as discussed in greater detail below, they are
badly mistaken and misguided.

v
The terms of the Mine Act as well as the Act's legislative
history reflect a congressional determination that all mi ning
related accidents and diseases unduly burden and impede interstate commerce. See section 2(f) of the Mine Act, 30 u.s.c.
§ 80l(f).
In addition, 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 Coal 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 feasible 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); Marshall v. Bosack, 463 F.Supp. 800 (E.D. Pa. 1978),
aff'd, 3rd Cir. No. 78-1803 (Jan. 15, 1979) (applying Coal Act to
coal preparation plant).
Congressional intent to counter the adverse effect of mining
accidents and injuries by regulating the mining industry as a
whole has be·en recognized by the Supreme Court. In Donovan v.
Dewey, 452 U.S. 594, 602 (1982), a case involving a surface 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' finding was "based on extensive evidence
showing that the mining industry was among the most hazardous of
the nation's industries.
(Sees. 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, including a particular member whose activities are
entirely intrastate. Perez v. United States, 402 U.S. 146, 150
(1971); Fry v. United States, 421 U.S. 542, 547 (1975).

913

Thus, 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 above, 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.
It is well established that 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). Mr. Cullen does not and cannot show a lack of
any rational basis for Congress' finding that mining-related
accidents and diseases at all mines burden and impede interstate
commerce. Thus, the legislative history of the Mine Act indicates that Cullen's gravel pit is properly the subject of ·
congressional regulation.
The nature of Cullen's mining activities fall within the
broad scope of jurisdiction contemplated by the Mine Act. Section 4 of the Act, 30 u.s.c. § 803, states that "[e]ach coal or
other mine, the products of which enter commerce, or the operations or products of which affect commerce, and each operator --and every miner in such mine shall be subject to the provisions
of (the] Act." Applicable case law also indicates that Cullen's
facility and _sales "affects commerce" within the meaning of
section 4 of the Mine Act. courts have consistently held that
Congress is empowered under the Commerce Clause to regulate even
intrastate sales . Wichard v. Filburn, 317 U.S. 111 (1942).
See
also Marshall v. Meredith Mining Co., 4S3 F.Supp. 737 (W.D. Pa .
1980) (Mine Act); more recently, in Andrus v. P-Burg Coal co.,
Inc., 644 F.2d 1231, 1232 (1981), the Seventh Circuit reiterated
that congress is empowered to regulate a mining operation that
produces a product solely for intrastate sale. In that case, the
court adopted the district court's jurisdictional determination
that intrastate producers compete with interstate producers, and
that intrastate sales have a cumulative effect on commerce.

VI
The record in the instant case clearly dictates that the
operator's conduct was tantamount to a denial of entry. MSHA
inspectors are not required to force entry or subject themselves
to .possible confrontation or physical harm in order to inspect.
Secretary v. Calvin Black Enterprises, 7 FMSHRC 1151 (Aug. 20,
1985) at 1157. See also U.S. Steel Corp. v. Secretary of Labor,
6 FMSHRC 1423 (June 26, 1984).

914

VII
PENALTY
There are numerous cases upholding the authority to issue
civil money penalties under section llO(a} of the Mine Act for
denial of entry to a mine .
Secretary v . Calvin Black Enterprises, 7 FMSHRC 1151 (August 20, 1985}. In Waukesha Lime and
Stone Company, Inc. 3 FMSHRC 1702 (July 1981} the Commission held
that an operator's refusal to permit an inspection requires the
imposition of a penalty notwithstanding the fact that the Secretary has obtained an injunction .
In determining the appropriate civil penalty, I have,
pursuant to statutory mandate, considered the statutory criteria
set forth in section llO(i) of the Mine Act. As to the size of
the business, Mr. Cullen testified that he usually has two or
three employees at the gravel pit . The parties stipulated that
Respondent is a 'small operator .
rt is undisputed that the
operator showed good faith in his abatement of the violation.
The violation was abated on July 27, 1992, when John Cullen, the
owner, signed an agreement stipulating that he would not interfere with or hinder or delay the Secretary of Labor or his
authorized representatives from conducting official inspection
duties under the provisions of the Mine Act . This signing of the
written agreement was pursuant to an earlier oral agreement to
the same effect between the Solicitor on behalf of the Secretary
and Mr. Cullen.
The violation was a serious one that threatens to undermine
mine safety enforcement. Considering the statutory criteria
however, and Mr. Cullen's sincere but badly mistaken belief that
he was merely standing up for his constitutional rights, I find
the MSHA proposed penalty of $2,000 . 00 for this violation by this
small operator is excessive. The violation was a very serious
one but considering the .statutory criteria including the good
faith abatement and the small size of the operator I find the
more appropriate penalty for this serious violation is $500.00.
I believe a $500.00 penalty in this case will effectuate the
deterrent purpose of the Act. See Robert G. Lawson Coal Company,
1 IBMA 115, 117-118 {1972}.

ORDER
Citation No. 4121093 is AFFIRMED. The Respondent John
Cullen Rock Crushing and Gravel is ORDERED TO PAY to the Secretary of Labor a civil penalty of $500.00 for this violation of

915

section 103(a) of the Mine Act within 30 days of the date of this
decision. On receipt of payment the case is dismissed.

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. John Cullen, JOHN CULLEN ROCK CRUSHING & GRAVEL, 4356 Bluefax
Drive, Pueblo, CO 81001 (Certified Mail)

sh

916

u

FILED

NfTrO STA1£S DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT DfNvtR.coi. 0 =>1."~
FOR THE DISTRICT OF COLORADO
JUN .~ ! 1?93

JAME~ rt MANSPfA.KER
Civil Action No.

:;tL.?K

92-M-2186

ROBERT REICH, SECRETARY OF LABOR, SUB NOM LYNN MARTIN,
SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR,
Plaintiff(s ),
v.
JOh"N CtJLLEN, fodividuaiiy, anci doing business as jQHN CULLEN ROCK CRUSHING
, 'AND
GRAVEL,
.
~

,-.
,,

Defendant( s).

~

INJUNCTIVE ORDER
This civil action was initiated by the United States Department of Labor pursuant to

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq., particularly under
§ 108 of the Act, 30 U.S.C. § 818, to obtain an injunction against John Cullen, doing business as John

Cullen Rock Crushing & Gravel, the owner and operator of a gravel pit in Pueblo County, Colorado,
from refusing to permit representatives of the Secretary of Labor to enter the gravel pit and refusing
to permit inspection of it. The plaintiff fiied a motion for preliminary injunction. The defendant did
not file an answer or other pleading. Mrs. John Cullen submitted to the Clerk of this court a handwritten note reading as follows: "We feel this civil action against us is unfair and misrepresented.
We are requesting a hearing on this in Pueblo County and we will represent ourselves because we
cannot afford legal counsel."
While tbat note was procedurally inappropriate, the court entered an order of reference to
United States Magistrate Judge 0. Edward

Sc~h~ t~a1eifa~~·~~~mend disposition by an order
-. r ·· C' ",.' -..--. • . ,-...:

\...;..:> '---· ,. ·~
~

of reference dated January 28, 1993.

-

:i

Q.
- .' ·. - · . J - -

917

\-

:- •

t

Magistrate Judge Schlatter convened a hearing on April 29, 1993, in Pueblo, Colorado.
Robert J. Murphy appeared for the plaintiff and John Cullen appeared for himself. As a result of
that hearing, Magistrate Judge Schlatter submitted his recommendation on May 5, 1993,
recommending the entry of the injunction. Mr. Cullen filed a written objection on May 18, 1993,
reading as follows:
I know nothing of any Physicall or Forcefull resisting. Verbal resistance is all
I know of.
I don't reamber saying anything about the future.
I never said anything about a probabel payoff but a possible payoff.
I ·"'·0vld like 2 CC;JY of the recordings. So I can go over them.
I would also like to talk to my congressman.
I hope I can recive the information and time I need.
This court has listened to the tape of the testimony and statements of Mr. John Cullen at the hearing
before the Magistrate Judge. It is clear from Mr. Cullen's statements that he disagrees with the
provisions of the Federal Mine Safety and Health Act of 1977, as applied to him and his business.
He has also made it clear that he refused admission and inspection of his operation by representatives
of the Department of Labor and considers that the attempts by those persons to inspect his business
is an unconstitutional invasion of his privacy and an unwarranted interference with the operations of

small business in this country. ?-.fr. Cullen further indicated a continuing refusal to comply with the
law. Accordingly, the defendant's own statements constitute a basis for finding that he has interfered
with, hindered and delayed the authorized representatives of the Secretary of Labor in carrying out
the provisions of the Act; has refused to admit them to his gravel pit and refused to permit the
inspection of his business. The Department of Labor is, therefore, entitled to an order of this court
in the nature of an injunction. Because an injunction is the only relief requested, this order shall
constitute a final order in this case. It is therefore
ORDERED, ADJUDGED AND DECREED that defendant John Cullen, individually, and
doing business as John Cullen Rock Rushing and Gravel, his agents, servants, employees, and all
persons in active concert or participation with him are enjoined:

918

l.

From denying authorized representatives of the Secretary of Labor entry to, upon or

through defendant's gravel pit;
2.

From refusing to permit the inspection of defendant's gravel pit;

3.

From interfering with, hindering or delaying the authorized representatives of the

Secretary of Labor in carrying out the provisions of the Federal Mine Safety and Health Act of 1977,

30 U.S.C. § 801, et seq.
4.

Upon the showing of official identification and the disclosure of their official office

address by the authorized icpr::seuta~ives 0f the Secretary of labor, John Cullen, and his agents,
servants, employees, and all persons in active concert or participation ....11h him, shall make no attempt
or inquiry to discern that representative's home address, telephone or social security number, or any
other personal infonnatioo concerning any representative of the Secretary of Labor.
5.

Enforcement of this order will be made by a Deputy United States Marshal who shall

accompany authorized representatives of the Department of Labor in the inspection of the
defendant's gravel piL
This court retains jurisdiction for such further proceedigns as may be necessary for the
enforcement of this order.
Dated: June 24, 1993

BY TI-IE COURT:

919

Case Number:

92-M-2186

I certify that I mailed a copy of the attached to the folJo,ving:

Daled'

~-~» f11:3

1
Jacob Gilmore, Deputy Clerk
Glenna Drake, Secretary

Roben J. Mui phy
Office of the Solicitor
1585 Federal Bldg.
1%1 Stout Sl
Denver, CO 80294
John Cullen
4356 Blueflax Dr.
Pueblo, CO 81001
cc:

Magistrate Judge Schlatter

cc:

U. S. Marshal

920

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

APR 2 5 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 93-490

.. A.C . No. 36-02398-03693

v.

:

Grove No. 1 Mine

LION MINING COMPANY,

Respondent
DECISION
Appearances:

Theresa c. Timlin, Esq., Office of the Solicitor,
U. S . Department of Labor, Philadelphia,
Pennsylvania, for the secretary of Labor;
Joseph Yuhas, Esq., Barnesboro, Pennsylvania,
for Respondent .

Before:

Judge Melick

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 (the Act). Following an evidentiary hearing,
Petitioner filed a motion to approve a settlement agreement
proposing to delete the "significant and substantial" findings
from Citation Nos. 3706632 and 3706891 and reducing the total
penalties for all citations from $854 to $475. I have considered the representations and documentation submitted in this
case, and I conclude that the proffered settlement is acceptable
under the criteria set forth in Section 110(i} of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that Respondent pay a penalty ot fi 475 within
30 days of this order.

Gary
Admi
1

·;

ary, the basis for
settlement of Citation No. 3706569 is set forth in full as
an Appendix hereto.
As requested by the Seer

92 1

Distribution:
Theresa c. Timlin, Esq., Office of the Solicitor,
U.S. Department of Labor, 14480 Ga~eway Building,
3535 Market street, Philadelphia, PA 19104 (Certified Mail)
Joseph Yuhas, Attorney for Lion Mining Company,
1809 Chestnut Ave., P . O. Box 25, Barnesboro, PA 15714
(Certified Mail)
/lh

922

APPENDIX

PENN 93-490

Citation No. 3706569 was issued on May 17, 1993, by an
authorized representative of the Secretary (MSHA inspector)
pursuant to § 104(a) of the Act fo~ a violation of 30 C.F.R.
§ 75.340(a)(l).
The citation states:
The air current used to ventilate the No. 2 Ram-Car
Charging Station in No. 5 Entry of 10 left Section
was not being coursed to the return air course
adequately in that a chemical smoke tube test taken
above two Ram-car batteries that the smoke traveled
out through crosscut 5 to 4 entries which is the
primary intake air escapeway for this station.
The inspector assessed the violation to be siqnif icant
and substantial, with it being reasonably likely for an injury
or illness resulting in lost work days to occur. The inspector
believed four persons would be affected by the hazard and
assessed the operator's negligence as low.
A hearing was held before the Honorable Gary Melick
on March 24, 1994, in Somerset, Pennsylvania, at which MSHA
Inspector Kenne.t h Fetsko testified that while inspecting
Grove No. 1 Mine on May 17, 1993, he traveled to the 10 Left
Section and inspected the Ram-Car battery charging station.
One Ram-car was being charged at the time. A second Ram-Car
battery, which was not on charge, was adjacent to the first
battery. At the other end of the crosscut, a golf cart
battery was also being charged. Inspector Fetsko released
several smoke tubes to check the direction of the air flow in
the cross cut. He observed the smoke travel slowly over the
battery which was not being charged, and out of the crosscut
into the intake escapeway. He did not observe any air travel
into the return. A mine map introduced into evidence as Joint
Exhibit No. 2, showed that the air from the intake escapeway
traveled to the working face. Inspector Fetsko further testified that in the course of abating the citation, he learned
that a door in the return had been closed, blocking the normal
flow of air from the crosscut into the return.
Ronald Gossard, an electrical engineer, testified as
an expert for MSHA regarding the reasonable likelihood of
an injury occurring as a result of the improper ventilation
at the crosscut. Mr. Gossard explained that batteries
liberate hydrogen during the charging process. Hydrogen is
an extremely explosive gas, with an explosive range that is
lower than methane. He further testified that the batteries
themselves serve as ignition sources. As the hydrogen was
observed traveling over the batteries, Mr. Gossard opined
that it was reasonably likely that the hydrogen gas could
ignite, causing an explosion in the area of the charging
station.
92.3

Hiram Riblett, Manager of Engineering for Lion Mining
Company, also testified. He essentially concurred with
Mr. Gossard about the explosive risk of hydrogen being
liberated from batteries .
In light of the testimony presented at hearing, the
parties agree that it was reasonably likely, if normal
mining operations had continued, that an explosion would
occur, resulting in a serious injury to workers in the
area of the charging station. The parties agree that the
operator's negligence was correctly assessed as low.

92 4

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

APR 2 5 1994

..

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
THOMAS K. ALLEN, and
ALAN D. BOE,
Complainants
v.

.
.

DISCRIMINATION PROCEEDINGS
Docket No . WEST 94-71-D
Docket No. WEST 94-47-DM
Rosebud No . 6 Mine

L. H. SOWLES COMPANY,
Respondent
DECISION
Appearances:

Robert J . Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado for
Complainants:
Gerald Roth, Colstrip, Montana for Respondent.

Before:

Judge Weisberger
statement of the case

These cases, consolidated for hearing, are before me based
upon Petitions filed by the Secretary of Labor on behalf of
Alan D. Boe and Thomas K. Allen alleging that they were
discharged by L. H. Sowles Company ("Sowles") in violation of
Section lOS(c) of the Federal Mine Safety and Health Act of 1977
("the Act"). Pursuant to notice, a hearing was held in Billings,
Montana on February 1, 1993. Subsequent to the hearing, the
Secretary filed a brief .on March 24, 1994. On April 4, 1994, a
brief was filed by Sowles.
Findings of Fact and Discussion

I.

Factual Background

During the period in issue, 1 . ~., May 24, 1993 through
June 9, 1993, Western Energy company ("Western") operated an
advanced coal preparation plant ("prep plant") located on the
site of its Rosebud No. 6 Mine. Western contracted with
Sowles for the latter to modify the prep plant. on May 24, 1993,
Alan Boe and Thomas K. Allen started to work for Sowles.
Initially, Boe and Allen, who are millwrights, were assigned to a

925

task putting buckets on a chain. From the time Boe was hired
until June 9, 1993, Sowles did not complain to him about his work
habits, or punctuality. There is no evidence that in this time
period Sowles disciplined or expressed any dissatisfaction with
Allen, or with his work.
On June 9, 1993, at approximately 9:30 a.m., Gerald Roth,
Sowles•s superintendent, who was the supervisor of Boe and Allen,
asked Boe to install explosion doors on a chute. According
to Boe, he told Roth that the man-lift ("JLG") was "working"
(Tr. 87) above them and "· •• this is unsafe; we should'nt be
doing it." (Tr. 94) Boe stated that Roth responded as follows:
"Get the damn explosion doors on, we have got to get the chute
stood." {sic) (Tr. 94). Roth then walked away, and Boe went up a
hill where Allen was working, and told him of Roth's directive to
install the explosion doors. According to Boe, Allen responded
by indicating that he would not work under a suspended load.
According to Boe, Roth then came up on the hill and said to him
and Allen as follows: "You guys either get that explosion door
put on or go to the house." {Tr. 107) (Emphasis added) 1 • This
letter term terminology is commonly used to tell a miner that he
is being fired . According to Boe, his and Allen's response to
Roth was as follows: "We said we weren't going to work on it."
(Tr. 108). Boe and Allen then went to see Patrick Rummerfield,
Western's Safety Coordinator. According to Rummerfield, Boe and
Allen informed· him that they had refused to work under a
suspended load. Boe and Allen then gathered their tools and left
the site.
II.

Applicable Law

The Commission, in Braithwaite v. Tri-Star Mining,
15 FMSHRC 2460 (December 1993), reiterated the legal standards
to be applied in a case where a miner has alleged acts of
discrimination. The Commission, Tri-Star, at 2463-2464, stated
as follows:
The principles governing analysis of a discrimination case
under the Mine Act are well settled.
A miner establishes a
prima facie case of prohibited discrimination by proving
that he engaged in protected activity and that the adverse
action complained of was motivated in any part by that
activity. Secretary on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980)_, rev'd on
other grounds, sub nom. Consolidation Coal Co •. v. Marshall,
663 F.2d 1211 (3d cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal co., 3 FMSHRC 803, 817-18
(April 1981) . The operator may rebut the prima facie case
by showing either that no protected activity occurred or
that the adverse action was in no part motivated by
1

In essence, Roth also testified that he made this statement.

926

protected activity. Fasula, 2 FMSHRC at 2799-800. If the
operator cannot rebut the prima facie case in this manner,
it nevertheless may defend affirmatively by proving that it
also was motivated by the miner's unprotected activity and
would have taken the adverse action in any event for the
unprotected activity alone. Fasula, 2 FMSHRC at 2800;
Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal
Corporation, v. United Castle Coal co., 813 F.2d 639, 642
(4th Cir. 1987).
A miner's refusal to perform work is protected under the
Mine Act if it is based upon a reasonable, good faith belief
that the work involves a hazard. Robinette, 3 FMSHRC at
808-12; Conatser v. Red Flame Coal Co., 11 FMSHRC 12, 17
(Jan. 1989); see also, Simpson v. FMSHRC, 842 F . 2d 453, 458
(D.C. Cir. 1988). The Commission has held: "Proper
communication of a perceived hazard is an integral component
of a protected work refusal, and responsibility for the
communication of a belief in a hazard underlying a work
refusal lies with the miner." Conatser, 11 FMSHRC at 17,
citing Dillard Smith v. Reco, Inc., 9 FMSHRC 992, 995-96
(June 1987). 11 [T]he communication requirement is intended
to avoid situations in which the operator at the time of a
refusal is forced to divine the miner's motivations for
refusing \work." Smith, 9 FMSHRC at 995. The miner's
failure to communicate his safety concern denies the
operator an opportunity to address the perceived danger and,
if permitted, would have the effect of requiring the
Commission to presume that the operator would have done
nothing to address the miner's concern. Id. Thus, a
failure to meet the communication requirement may strip a
work refusal of its protection under the Act. Finally, the
Commission has held that the "communication of a safety
concern 'must be evaluated not only in terms of the specific
words used, but also in terms of the circumstances within
which the words are used . • • • 111 Conatser, 11 FMSHRC at
17, quoting Secretary on behalf of Hogan and Ventura v.
Emerald Mines Corp., 8 FMSHRC 1066, 1074 (July 1986), aff'd
mem., 829 F.2d 31 (3d Cir. 1987).
III.

Discussion

I find that the record establishes that Boe and. Allen were
told by Roth, in essence, to either install the explosion doors
or they would be fired. They chose not to install the doors, and
were fired. Hence, they were discharged by Roth solely for their
work refusal to install explosion doors. Under applicable case
law cited above, it must be decided (A) whether the work refusal
was protected, i.~., whether it was based on a reasonable belief
that.. the work involves a hazard, and (B) whether Boe and Allen
communicated this belief to Roth.

927

(A)

Reasonable Belief in a Hazard

In order to install the explosion doors on the chute,
Boe and Allen would have had to climb a ladder that had
been set against the chute. According to Boe•s testimony
that I find credible, when he had his initial conversation
with Roth, he was standing approximately l foot from the
base of the ladder which was approximately 1/2 - 2 feet from
the base of the chute. Boe looked up and observed that the
caqe of a mobile man-lift (JLG) was directly overhead. Boe
indicated that the cage was approximately 20 feet above the
ground. The cage, which contained 2 iron workers, Roger Meyer,
and David Little Whiteman, Jr., was connected to an arm that was
attached to the base of the man-lift. In addition to the iron
workers, the cage also contained following items: 3/4 inch bolts,
an electric wrench, an acetylene cutting torch, and hand tools.
The openings in the floor of the cage were not large enough to
allow these items to fall through. However, Meyer explained that
in performing his duties in the case, he reaches up over the
basket of cage with his tools. It thus is possible that a tool
could accidentally drop, and hit someone below. Both Meyer and
Little Whiteman, Jr . , in essence, stated that in the normal
performance of their duties, the cage would have been over the
ladder in question.
At approximately 10:00 a.m. , Patrick D. Rummerfield Western
Safety Coordinator, observed the area in question and noted the
man-lift. He opined, that it would be a hazard to have person
stand on the ladder and install explosion doors at the chute "If
everything was exactly as these photographs show" (Tr. 52) (Govt
Ex C-1-4) .
Boe expressed his concern about the hazards of working under
the cage of the man-lift. He indicated that the ~ydraulic system
supporting the cage could fail, or tools and equipment used by
the iron workers could fall causing injuries.
Roth testified that he intended to have had the man-lift
cage swing away from the area in question, so that Boe and Allen
would not have been exposed to any hazard when working on the
ladder. However, he did not tell either Boe or Allen that he had
intended to move the man-lift .
Within the framework of the above evidence, I find that Boe
and Allen had a qood faith belief that performing the work
requested by Roth would have exposed them to the hazards of
working under the man-lift cage i.§., a risk of being injured by
an item dropped from the cage.
~

(B)

Communication of a Perceived Hazard

According to Roth , when he had asked Boe to install the
explosion doors, the latter did not say anything about working

928 .

under a suspended load, or about working in unsafe conditions.
Roth indicated that Boe stated merely that "the area was too
congested could it wait until later" (sic) (Tr. 276). On
cross-examination, Roth stated that he interpreted Boe's
refusal as follows: "He wanted to wait until the iron workers
were plwnb done, and then they go over and work on the area."
(sic) (Tr. 286). Boe, on the other hand, stated that he told
Roth that it was unsafe to install the explosion doors. He said
that he did not recall saying that he not want to do the work
because the area was "congested" (Tr. 156). Within the framework
of this evidence, and based upon the demeanor of Boe whom I found
to be a credible witness on this point, I conclude that Boe did
communicate to Roth his safety concerns regarding the performance
of work installing the explosion doors as ordered by Roth.
According to Allen, at approximately 9:30 a.m. on June 9,
When Boe informed him that Roth wanted them to install explosion
doors which required them to stand on a ladder under the manlift, Allen said he would not do it as working under the JLG was
unsafe. Allen said that he did not say anything to Roth prior to
the time Roth approached him on the hill and told him and Boe
that if they did not want to do the work they should go home.
Allen indicated that after Roth spoke to him he did not say
anything to Roth. 2 Allen explained as follows: "· •• I wasn't
going to do it, --.so there was nothing to say" (Tr. 200).
Since Boe and Allen were ordered by Roth to perform the same
task, i.§., to install explosion doors, a communicated refusal by
Boe to Roth, served to alert Roth of the perceived danger of
performing this of task. Thus, Roth was afforded the opportunity
to address the perceived danger to Boe and Allen. (See, Smith v.
Reco, supra, at 995). There was accordingly no need for Allen to
separately communicate his concerns to Roth. I thus conclude
that the communicated refusal by Boe allows Allen's refusal to be
afforded the protection of the Act.
Conclusion
Based on the all the above, I conclude that Respondent did
violate Section lOS(c) in discharging Boe and Allen. There is no
evidence regarding Respondent's history, if any, of previous
Section 105(c) violations. Further, regarding Respondent's
negligence, I find Roth's testimony credible that he had intended
to have had the manlift removed so that Boe and Allen would not

2

Boe testified that after Roth spoke to him and Allen, "we
said we weren't going to work on it." (Tr. 108).

929

have had to work under it installing the explosion doors. I
conclude that a penalty of $1000.00 is appropriate for each
violation . The parties have agreed that the back pay to which
Boe and Allen are entitled is to be based upon 145 hours, and a
rate of pay of $21 . 97 an hour.

order
It is Ordered as follows:
1.

Docket No. WEST 94-71-D is dismissed;

2.
Respondent shall pay a total civil penalty of
$2,000.00, 3 within 30 days of this decision, for discharging
Alan Boe, and Thomas K. Allen, in violation of section 105(c) of
the Act;
3.
Respondent shall, within 30 days of this decision, pay
Alan Boe, and Thomas K. Allen, back wages based on 145 hours and
a rate pay of $21.97 an hour, plus interest at a rate to be
calculated in accordance with LOC. ~ 2274, UMWA v. Clinchfield
coal Co., 10 FMSHRC 1443 (November 1988), pet. for review filed,
No. 88-1873 (DC Cir. December 16, 1988), and based on the formula
set forth in s.e cretarv on behalf of Bailey v. Arkansas - carbona
Co., 5 FMSHRC 2042, 2051-53 (December 1983); and
4.
The employment records of Alan Boe, and Thomas K.
Allen, be completely expunged of all comments and references to
the circumstances involved in their discharges, and the
discharges be removed from their files.

~~

Avram Weisberger
Administrative Law Judge

Distribution:

Robert J. Murphy, Esq., Office of the Solicitor, u.s. Department
of Labor, Room 1585, 1961 stout Street, Denver, co 80294
(Certified Mail)
Mr. Gerald Roth, P.O. Box 718, Colstrip, MT
Mail)

59323 (Certified

/efw
3

The penalty for the violation found in Docket No.
WEST ··94-11-o is $1,000.00. The penalty for the violation
found in Docket No . WEST 94-47-DM is $1,000.00.

930

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

20006

April 25, 1994

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA)
Petitioner

Docket No. YORK 93-134-M
A. C. No. 18-00417-05501 W21

v.
EXPLO-TECH INCORPORATED,
Respondent

Mechanics Valley Quarry

.

DECISION
Appearances:

Anthony G. O'Malley, Jr . , Esq., Office of
the Solicitor, u. S. Department of Labor,
Philadelphia, Pennsylvania, for the Petitioner;
Frank P. Spada, Jr., Esq., Explo-Tech
Incorporated, Philadelphia, Pennsylvania, 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 Explo-Tech
Incorporated under section 110 of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 820.
Citation No.. 4082132 was issued for a violation of 30
C.F.R. § 56.15005 and alleges the following condition or
practice:
The contract driller using a Gill (bettle) drill
was observed operating the drill approximately 2 to 3
feet from the bench edge.
The driller was not wearing a safety line and belt
to protect him from a 30 foot fall, if the bench edge
collapsed or he lost his footing.
30 C.F.R. § 56.15005 sets forth the following:
Safety belts and lines shall be worn when persons
work where there is danger of falling; a second person
shall tend the lifeline when bins, tanks, or other
dangerous areas are entered .
A hearing was held on March 31, 1994. In an off the record
conference prior to going on the record and in written submissions, the parties agreed to the following stipulations
(Tr. 6-9):

931

(1)
The respondent is an operator and was performing
services for Mechanics Valley Quarry, Cecil County, Maryland
which services are the subject of this proceeding.
(2) Respondent utilizes tools, equipment, machinery, materials, goods, and supplies in its business activities which have
originated in whole or in part from locations outside the
Commonwealth of Pennsylvania.
(3) Respondent engages in business which affects commerce.
(4) Operations at the Mechanics Valley Quarry are subject to
the Mine Safety Health Act of 1977, as amended.

(5) The Administrative Law Judge has jurisdiction to hear
and decide this case pursuant to Section 105 of the Act of 1977.
(6)
MSHA Inspector earl F. Spohn was acting in his official
capacity when he issued to Respondent on March 24, 1993, a
104(a) citation for violation of 30 C. F . R. 56.15005 (Citation
No. 4082132.)
(7) True copies of the citation referred to in Stipulation
No. 6 together with all appropriate modifications and abatements
were served on the Respondent or its agents as required by the
Act.
(8) The Administrative Law Judge has the authority to assess
the appropriate civil penalty under Section llO(i) of the Act if
he finds that the citation at issue states a violation of the Act
and the regulations.

(9) The parties have agreed that the Respondent's workers
were not using safety belts when viewed by the MSHA inspector.
(10) The parties have agreed that the issues are whether the
condition noted by the Inspector existed; where the cited miners
were standing at the time the MSHA inspector saw them and whether
the miners were in danger of falling.

(11) Copies of the subject citation and 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 therein.
(12) Payment of any penalty will not affect the operator's
ability to continue in business.
(13)

The operator demonstrated good faith abatement.

932

/

(14)

The operator has no history of prior violations.

(15)

The operator is small to medium in size.

At the hearing, the Secretary presented testimony from the
inspector who issued the citation and from a trainee inspector
who was present at the time . The operator presented testimony
from its safety and compliance director as well as the miner who
was operating the drill when the citation was issued.
After completion of the Secretary 1 s case and during presentation of the operator's testimony, the parties agreed to recommend a settlement of this matter. The parties proposed to delete
the significant and substantial designation, leave as unchanged
the negligence determination of moderate, and characterize
gravity as moderate. The parties also agreed to leave the determination of the appropriate penalty amount to me .
In ruling upon
the parties' motion, I held as follows (Tr . 155-157):
Under the Mine Safety Act unlike most statutes,
the administrative law judge has the affirmative duty
to approve a settlement, even if the parties themselves
have agreed upon its terms. Under this law the judge
does not have to approve a settlement, if he determines it is not in the public 1 s interest. In other
words, the judge is here to guarantee the public interest under this mine safety law .
I determine that this proposed settlement is in
the public interest. It appears to me to be fully
justified by the efforts taken to this point in this
matter.
I believe that the settlement in addition to
being consistent with the public interest, also is to
the benefit of both parties.
Therefore, in accordance with the settlement, I
order that the finding of a violation in Citation
4082132 date March 24, 1993 , be hereby affirmed.
I
further order that the designation of significant and
substantial in said citation be deleted. I further
find that the finding of negligence to a moderate
degree be affirmed .
I further find, as proposed and as
indicated by the nature of the testimony here thus far,
that the violation was of only moderate gravity .
The parties have left to me the determination of
the amount of civil pen alty to be assessed . In making
this assessment, I particularly note t hat this small to
medium sized operator has no prior history of viol a tions. That to me is a very telling factor.
In light
of that factor and the other five criteria in section
l l O(i) of the Act, I assess a penalty of $50.

933

I adhere to the foregoing, findings, conclusions and
assessment.
In accordance with the settlement proposal approved on the
record as stated above, it is ORDERED that the operator PAY, if
it has not already done so, $50 within 30 days of the date of
this decision, and that this case be DISMISSED.

Pau l Mer l in
Chief Adm i nistrative Law Judge
Distribution:
Anthony G. O'Malley, Jr., Esq., Office of the Solicitor, U. s.
Department of Labor, Room 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104
Frank P. Spada, Jr., Esq., Clark, Ladner, Fortenbaugh & Young,
Explo-Tech Incorporated, One Commerce Square, 2005 Market Street,
Philadelphia, PA 19103
/gl

ftDBllL JIDIB 8Al'Bft UD BBALTJI RBVXBW COIDUSSIOB
OFFICE OF ADMINISTRATIVE LAW JOOGES
2 SKYLINE, 10th FLOOR
5Z03 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 2 6 1994
BETHENERGY MINES, INC.,
contestant

v.

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

:

CONTEST PROCEEDING

:

:
:

Docket No. PENN 93-247-R
Order No. 3708620; 3/11/93

:

Cambria Slope #33 Mine

DECISION
Appearances:

R. Henry Moore, Esq., Kevin Burns, Esq.,
Buchanan Ingersoll, P.C., Pittsburgh,
Pennsylvania, for the Contestant;
Mark V. Swirsky, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a Notice of Contest filed by the
contestant (BethEnergy) pursuant to section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 815(d),
challenging the legality of a section 107(a) imminent danger
order. The respondent (MSHA) filed a timely answer asserting
that the order was properly issued, and a hearing was held in
Pittsburgh, Pennsylvania. The parties filed posthearing briefs,
and I have considered their arguments in the course of my
adjudication of this matter.
Issues
The principal issue in this case is whether or not the cited
conditions or practices presented an imminent danger within the
meaning of section 107(a) of the Act, warranting the withdrawal
of miners from the mine.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977,
30 u.s . c. § 301 et seq.

2.

Sections l05(d) and 107(a} of the Act.

J.

Commission rules, 29 c.F.R.

935

§

2700.1, et seq.

Stipulations
The parties stipulated to the following (Tr. 8-12) :
1. The No. 33 Mine in question i s owned and operated by the
contestant.
2. The presiding Judge has jurisdiction to hear and decide
this matter.
3. The contested order was issued at 1:15 p.m. on March 11,
1993 , as a result of a fire that occurred in a new airshaft
that was in the process of being constructed by an
independent contractor, Central Cambria Drilling Company.
The order required the contestant to evacuate the entire
underground workings of Mine 33 . There were other Section
107(a) orders and a Section 103(k) order which were issued
at this shaft site to Central Cambria Drilling. No other
orders affected the underground workings at Mine 33 . The
subject order was lifted at 4:40 p . m., and it was in effect
for three hours and twenty-five minutes .
4. Mine 33 produces coal from two seams, the Upper
Ki ttanning (C Prime) and Lower Kittenning (B Seam) coal
beds, which average 48 to 72 inches in thickness .

s. In March 1993 there were six continuous-mining machine
sections and two longwall sections that produced an average
of 8,965 tons of clean coal daily at Mine No . 33.
6. The D-East air shaft had been under construction since
August 21, 1992, by Central Drilling Co., (ID No. 859).
7. The shaft measured approximately 30 feet, 2 inches by
18 feet , 4 inches and is projected to a depth of 1,035
feet to the Lower Kittanning (B Seam} coalbed . It was
intended to be an intake air shaft for the D-East area
of Mine 33. On March 11, 1993 the shaft had been
driven to a depth of 841 feet.

a. At approximately 5:15 A. M. on March llth, 1993, smoke
was discovered in the D-East shaft by employees of Central
Cambria . At 8 : 30 A.M . a fire in the shaft was observed .
Throughout the day activities were conducted to ensure that
any fire was extinguished, including the dumping of water
into the shaft.
9.

MSHA was notified of the incident at 9:05 A.M.

10 . Ventilation of the D-East shaft construction site is
essentially separate from the ventilation system for the
underground workings of Mine 33. However, if the valve of
936

the deep water borehole connecting 0-east shaft to the active
workings of the mine was open and the borehole pipe was not
filled with water, there could be limited air movement
through the borehole into the D-East area of the mine. Such
air would not travel to any working section of the mine.
11. The 0-East shaft is connected to a deep watering
borehole at the shaft's water ring located at approximately
the 272 foot level and the 624 foot level. This borehole
pipe extends i nto the lower Kittanning B seam .
12. The valve and the bor ehole pipe were closed by
Bethenerqy at 9 : 28 a . m.
13. At approximately 9:28 A.M. a BethEnerqy employee
observed a limited amount of smoke in the B seam in proximity
to the bottom of the deep watering borehole . But once the
valve on the borehole was closed the smoke dissipated and no
further clear evidence of smoke was observed.
14. Prio~ to the issuance of the Section 107(a) order
involved in this matter, at 10 :15 A. M, an air sample was
collected by an MSHA inspector in the B seam at the location
of the 0-East shaft eight-inch dewatering borehole.
15. This sample was collected t o sample the air that might
be entering the underground workings of Mine 33 .
16 . This air sample detected . 010 percent methane present at
the location where the borehole enters the B seam . This is
not considered a significant amount of methane .
17. This air sample showed . 0006 percent carbon monoxide
present where the borehole enters the B seam. This is not
considered a significant amount of carbon monoxide.
18 . The valve on the borehole pipe was closed at the time
the sample was taken. MSHA did not have the results of this
air sample at the time the 107(a) Order was issued and did
not base the 107(a) Order in any way on the results of the
said air sample. At 9 : 45 A. M. MSHA inspector Nevin Davis
used a hand-held detector to determine the level of methane
in the area of the borehole in the D-East area B seam. He
did not detect any methane in the area of the borehole. He
was advised that a BethEnerqy foreman was to monitor the area
of the borehole i n the B seam using a carbon monoxide
detector. Such information was available to the MSHA
personnel who directed that the Section 107(a) Order be
issued.

937

Discussion
The contested section 107(a) Order No. 3708620, was issued by
JISHA Inspector Joseph E. Colton, on March 11, 1993, at 1:15 p .m.,
and the cited condition or practice states as follows:
A mine fire has occurred approximately 17 feet above the
bottom of "D" East shaft currently under construction,
the fire is of unknown origin and the extent of the fire
cannot be determined . This shaft is connected to a
borehole that extends into the "B" coal seam, which is
interconnected with the "C" prime seam. This order
requires all persons to be evacuated from the underground
areas of these two coal seams until such time that a
determination can be made that these underground areas
are in fact safe and unaffected by the ongoing mine fire.
The order required the withdrawal of miners from the entire
underground portions of both the "B" and "C" coal seams.
Petitioner's Testimony and Evidence
MSHA Electrical Inspector Joseph E. Colton, testifi ed that he has
been so employed for 18 years, and has received training in
conducting accident investigations, including methane ignitions
and explosions. He stated that he was first notified of the fire
at the D-East shaft at approximately 9:15 A.M., on March 11 ,
1993, by his supervi sor James Biesinger who instructed him to
proceed to the mine and start an investigation and to issue a
section 103(k) order at the shaft site where the fire was
reported. Mr. Colton confirmed that he arrived at the shaft at
9:50 A.M ., and spoke with the superintendent or foreman of the
shaft construction crew (Peterman) (Tr. 21-26).
Mr. Colton stated that Mr. Peterman informed him that he went
part way down the shaft in a bucket to determine the source of
the fire but had to come back to the surface because of heavy
smoke and he did not know what was burning, but that flames were
projecting "in a torch like fashion" from the concrete bulkhead
or wall of the shaft which had reached to within 17 feet of the
shaft bottom (Tr . 28). Mr. Colton then informed Bob Nelson,
MSHA's acting subdistrict manager in Johnstown about the fire in
the shaft and told him that he had issued a verbal section 103(k)
order to Mr. Peterman, who informed him that on the previous
•hift methane was detected at .7 and .9 percent. Mr. Biesinger
arrived at the scene at approximately 10 : 45 A.M., and took
charge, and Mr. Colton briefed him on what he had done (Tr. 32).
Referring to his notes, Mr. Colton indicated that

Mr. Peterman told him that the fire was reported to him at

938

5:45 A.M . , by workers "reporting that the fan had .burned up"
(Tr. 33). Mr . Colton stated that after Mr. Biesinger arrived, a
aection 107(a) order was issued for the shaft area and he
explained as follows at (Tr. 33-34):
A. Well, with all the activity and all the different
agencies arriving and different people arriving up at the
scene, it was decided for everyone's safety that an imminent
danger be placed on the shaft area to more or less control
the amount of people there. And because of the fact, like I
said, we didn't really know what was burning or what was
going to happen to our efforts of putting the fire out.
so we did determine that there was an imminent danger at
this location at that point in time . so here, again,
Mr . Peterman was verbally told of the imminent danger
Order and Mr. Biesinger was left with Mr. Peterman as I
went to my vehicle to issue the Orders in writing. And
that's what I did at that point in time, I exited the
trailer, '.Went to my car and wrote out the necessary
documents \.to inform Mr. Peterman in writing of what our
intentions were.
Mr . Colton stated that once the water was put down the shaft,
he was concerned about a void behind the bulkhead creating a
methane explosion hazard from the efforts made to extinguish the
fire . He did not believe that this hazard would have been
totally eliminated after the fire was put out by the water in the
shaft, and he believed that the water level had to be brought up
from the bottom of the shaft and onto the cement bulkhead, and at
least 10 feet higher in order to thoroughly extinguish the fire
(Tr . 38-39). He believed the water reached that level after the
imminent danger order was issued, and he expressed his concern as
follows at (Tr. 39-41):
A. It was after the issuance of the Order when the water
reached that level. That was the major concern of the
Order because , like I said before, we had nobody hurt at
this point in time. And the only way to guarantee or to
assure that nobody else would be involved by our efforts
to extinguish this fire. And I could say the only way to
assure the fact that . nobody else was hurt was to remove
everybody from the mine because there was a possibility
of entrapment of gas behind this area and there was a
possibility that this gas could be ignited . And no one
can really say with any certainty what's going to take
place when an explosion occurs. The --- it's something
that's uncontrolled and it's unpredictable and for
anybody to say that it's going to do this or that would
be ludicrous. You can't make a determination like that.

939

* * * * during our extinquishing process it was feared
that we could have created a situation where an explosion
could have occurred and to make --- take every step
available to us to assure that nobody would get hurt. The
only· step we _had available to us was to remove everybody
from the mine .
Mr . Colton stated that if an explosion had occurred, no one
could predict what would happen or its direction. He stated that
he became aware of the borehole pipe connection between the shaft
and the B coal seam at approximately 12:50 p.m ., and that
Mr . Biesinger may have informed him of this . Mr . Colton stated
that he shared Mr . Biesinger's concern about a potential
explosion "probably around the same time t hat we had a discussion
about the borehole connection with the B seam" (Tr . 42).
Mr . Colton stated that Mr . Biesinger was in communication with
district manager Kuzar at this time, and that Mr . Biesinger
instructed him (Colton) between 12:00 and 12:30 p . m. to go to the
mine off ice at the main portal and issue an imminent danger order
affecting both coal seams and to withdraw all persons from the
mine (Tr . 43-44 ).
Mr . Colton estimated that the distance between the borehole
pipe and the bottom of the shaft and the B coal seam was
200 feet . He stated that he went to the mine office to issue the
order, rather than to the B seam itself, because he wanted to
make sure that mine management was aware of what was taking place
and that everyone needed to be evacuated from the mine. He
stated that he met with Mr. Dick stickler, Mr. DuDreucq, and
Mr. Moyer, and instructed them to evacuate the mine . Mr . Colton
confirmed that the 1 : 15 p.m . , issuance time on the order reflects
when he reduced it to writing , and that Mr. Biesinger had
instructed him to issue it approximately one hour earlier
(Tr . 48) . He confirmed that he was not involved in terminating
the order because he was relieved by another inspector (Tr. 49).
Mr . Colton stated that he formed his own opinion as to
whether the imminent danger order should issue regardless of
Mr . Biesinger's instructions to do so because he "felt strongly
that there was a great potential for a disaster there", and that
the only way to assure the safety of the people underground was
to remove them from the mine . He confirmed that he would have
issued the order himself if Mr. Biesinger had not instructed him
to do so (Tr. 50). He confirmed that at the time he ordered
people removed from the shaft , he did not know about the
connection with the underground B seam (Tr. 53) .
On cross-examination, Mr. Colton stated that during his
18 years with MSHA he has been involved in only one investigation
of an underground explosion, and it was not a shaft explosion
(Tr. 56). He stated that the borehole is in close proximity and
next to the shaft and stands about one foot out of the ground.

940

He confirmed that during the fire, the carbon monoxide coming out
of the shaft was being monitored by several people, .including two
or more state officials. Also present at the scene were
employees of BethEnerqy, the UMWA, the shaft contractor, Central
Cambria Drilling Company, and members of the mine safety
committee (Tr. 60-61).
Mr. Colton stated that there were no electrical lines behind
the concrete shaft liner. He confirmed that he had previously
inspected Mine 33, including the B seam , and that there are
numerous boreholes used for degassing purposes. He confirmed
that when he first arrived at the mine he did not ask
Mr. Peterman if there were any connections between the mine
workings and the shaft because "the thought didn't occur to me at
that preci se moment. I was more concerned with the people in the
immediate area" (Tr. 65) . He also confirmed that he was not
aware that two other MSHA inspectors were at Mine 33, even though
inspectors are usually present on any given morning, because it
didn't occur to him at that time .
Mr. Colton stated that the borehole is connected to the shaft
by two "water rings" that collect water that comes down inside
the shaft walls and funnels it over the borehole so it can drain
into the mine (Tr. 66) . He did not know how big the connection
was between the water r i ngs and the borehole, or how big the hole
was in the borehole pipe. He believed that the shaft and shaft
ventilation would have to be approved by MSHA, but he did not
know when it was started or how frequently it was inspected
(Tr. 67).
Mr. Colton stated that after he issued the order,
Mr . Stickler, Mr . DuBreucq and Mr. Moyer challenged it, and he
called Mr. Biesinger from the mine office to advise him of this.
He did not believe that he could have properly issued the order
by telephoning those indi viduals "because there's certain
procedures you must follow when you close a mine" and he did
not want to give an advance warning to evacuate the mine. He
confirmed that it took him 20 or 30 minutes to drive to the mine
to issue the order (Tr . 68-70) .
Mr. Colton confirmed that at the time he issued the order he
knew that Mr. Peterman had observed that the fire was at the
bottom of the concrete shaft , but did not know the location from
where the flames were coming out (Tr. 71). He did not assume
that methane was bleeding out of the E seam, did not know which
way the air was flowing in the borehole, did not know whether
there was water in the borehole, was certain that he was told
that the valve at the bottom of the borehole had been closed, did
not know what would happen if the valve were closed, and did not
speak to anyone about this (Tr . 72-74).

941

Mr. Colton stated that the shaft was approximately 843 feet
deep (Tr. 74), and in response to a question as to the direction
of any explosion in the shaft, he stated as follows (Tr . 76):
It all depends where that explosion occurred. If it
occurred behind the bulkhead of the shaft it could
probably blow the shaft wall out·, probably penetrate the
pipe. It all depends on the magnitude of the explosion ,
the amount of gas, explosive gas, is contained behind the
bulkhead . That was a fact that we didn't know.

A.

Mr . Colton confirmed that while water was being dumped down
the shaft to extinguish the fire, the ventilation and methane in
the shaft continued to be monitored , but he did not know how high
the water had risen when the order was terminated (Tr. 76-78).
In response to further questions, Mr. Colton stated that the
borehole is close to the shaft wall, but does not touch it, and
that it consists of a metal casing of steel pipe (Tr. 82). He
confirmed that the contractor personnel working in the shaft were
out of the shaft when the fire was detected, and that the
imminent danger order issued for the shaft was still in effect
when he issued the order for the underground mine area in
question (Tr. 83-84).
Mr. Colton explained that the shaft "gaps" that concerned him
were the spaces created between the outer corrugated metal lining
next to the concrete shaft wall and the natural rock or terrain
adjacent to the lining (Tr. 85-86). He confirmed that the shaft
was still under construction at the time the order was issued
(Tr. 87).
James E. Biesinger, MSHA supervisory mine inspector,
testified that he holds a 1967 associate degree in engineering
from the Penn State University, had previous experience as a mine
surveyor, field engineer, and assistant safety director prior to
his MSHA employment in February 1971 (Tr. 88-89). He confirmed
his experience and training, including the investigation of an
explosion at Bethlehem Mines Corporation Lehman mine shaft that
killed one person. He recalled that the explosion in that
incident "went two directions in the shaft . It went down and
then it came back up" (Tr . 94). He confirmed that his experience
with that explosion affected his decision making with respect to
the shaft fire in this case (Tr. 94). He also confirmed that he
was involved with the recovery of several mine fires and
explosions during his career, and that he has reviewed numerous
accident reports in this regard (Tr. 94).
Mr. Biesinger stated that he first learned of the fire in
question when he received a phone call from construction foreman
Ray Peterman at approximately 9:05 a.m., on March 11, 1993.
Mr. Peterman informed him "that something was burning and he
942

auspected a fire in the shaft, and asked permission to dump water
down the shaft and asked if we had any objections to him
notifying local fire companies to provide water to put into the
abaft" (Tr. 95). Mr. Biesiner informed Mr. Peterman that he was
under a section 103(k) order, ~hat he should immediately start
putting water down the shaft, and that he was dispatching an
inspector to the site to issue the formal order (Tr. 96).
Mr. Biesinger stated that he could have issued a section 107(a)
imminent danger order over the telephone at that time pursuant to
MSHA policy, but he did not do so . He confirmed that the policy
has since changed, and an inspector must travel to the site
before issuing such on order (Tr. 96-97).
Mr. Biesinger confirmed that he assigned Mr. Colton to go to
the mine and then called the acting MSHA Subdistrict Manager,
Robert Nelson, and briefed him. Mr. Biesinger and trainee
inspector Clark McElhoes then went to the site and Mr. McElhoes
was assigned to assist in taking oxygen, methane, and carbon
monoxide readings from the exhaust fan, and he explained the
results as follows (Tr. 99-100):
A.
We \were getting readings as high as, I believe,
126 parts'. per million co, carbon monoxide. Oxygen was
somewhat less than 20.os and methane, I believe, was
.1 percent, 0.1 percent.

***
A.
Carbon monoxide, 126 parts per million is not a
great amount, but it is above the OVL limits and it is an
indicator of fire. You can use that as an indication
that we have some kind of combustion taking place.

***
A.
The other was oxygen. It was 20. --- I believe it
was less than 20.5 percent . Which means it was less than
-- usually we have around 21 percent which means that you
could have some of the oxygen being used up in combustion
which is also an indicator that there is combustion going
on in the shaft.
·
Mr . Biesinger stated that based on his discussions with
Mr. Peterman, and his own observations at the shaft between
10:05 A.M. and 10:40 a.m . , he could not conclude that methane was
being burned. The record books reflected methane readings of
.6 to .7 during the previous hours, and he concluded that
•omething was burning in the E seam, and that it was possibly air
and duct lines constructed of PVC or rubberized material, and
possibly methane being liberated from the rock strata. He was
concerned that the methane could build up behind the shaft wall
and explode if ignited by the burning fire (Tr. 101-106).
943

Mr. Biesinger stated that he learned about the borehole pipe
at 10:45 A.M. when MSHA inspector Sam Brunati called him from the
surface of mine 33, where he was conducting an inspection, and
informed him that mine officials had smelled smoke in the mine
but shut a valve on the bottom of the borehole pipe. Mr. Brunati
also informed him that MSHA inspector Nevin Davis, who was
underground at the time, went to the borehole area and detected
no methane, but did observe something that could have been
residual smoke or steam. Mr . Brunati also reported that 2,178
cubic feet of air per minute was ventilating the entry directly
below the bottom of the shaft in the B seam. Mr. Biesinger
stated that it was most likely that the ventilation was in
compliance with the mine plan and that no violations were issued
in this regard (Tr . 107-109) . Mr. Biesinger was told that the
borehole valve was closed at approximately 9 : 28 a.m . , and he
assumed that the smoke that was reported was detected before the
valve was shut (Tr . 110).
Mr. Biesinger confirmed that he was in communication with
MSHA acting district manager Xuzar prior to his conversation with
Inspector Brunati at 10:45 a.m., and they discussed the issuance
of an imminent danger order to remove the underground miners from
Mine 33, and that a "joint" decision was made at approximately
11:30 A.M . (Tr. 112). In concluding that the order was
appropriate, he considered the fact that there was an active fire
in the shaft, methane was detected coming out of the shaft fan,
readings were recorded in the shaft record book, previous shift
methane was detected as high as 1 . 0% at the shaft bottom around
the end of the concrete the open borehole connection between the
shaft and the underground B seam, and the borehole connection to
both water rings at the 624 and 270 foot level. He confirmed
that he knew that the valve had been shut, but believed that the
force of a shaft explosion coming down the borehole would destroy
the valve. He also confirmed that there was 200 feet of
unexcavated rock between the bottom of the shaft and the B seam
coal bed (Tr. 112-114).
Mr. Biesinger confirmed that the "connection" between the
shaft and the B seam was the borehole that penetrated the seam
200 feet from the shaft bottom. If there were an explosion, he
believed it "would be up and down the shaft, explosive forces to
the right and left, enter the water ring and down the borehole"
(Tr. 116). If there were no borehole, an explosion would be
restricted to the shaft, would not affect the underground B and C
coal seams where men were working, and he "would not expect it to
travel that 200 feet through solid rock and affect the B seam"
(Tr. 117).
.
Mr. Biesinger believed it was reasonably expected that any
explosion would go down the six-inch borehole and over to the B
seam for the following reasons (Tr. 118):

94.4

A. We had an open --- two open water rinqs which would allow
for expansion of that explosion . We had a borehole that --aix or eiqht inch borehole, whatever it was that connected
the two water rings wi th the B seam mine. I look at that as
a very high potential for --- that if an explosion occurred
that it could affect that B seam mine. Now, in the B seam
aine some 1,200 feet from the bottom of that air shaft we got
extensive mined out lonqwall gobs that contain methane qas.
And it's anybody --- anyone's quess what could happen if that
explosion entered into the B seam mine and affected the
ventilation in the B seam and could cause methane to be drawn
off of those lonqwall qobs. You could have significant
explosions underground as a result of that. This is a highly
gassy mine.
Mr. Biesinqer stated further that he specifically considered
the fire burning in the shaft bottom, the methane being
liberated, the void behind the shaft wall where methane could
be accumulated, and the water rising in the shaft that could
trap methane behind the concrete liner. He also considered
the presence "of burning PVC pipes and carbon monoxi de (Tr. 123) .
Mr. Biesinger stated that he did not specifically known that
miners were working in the B and c seams at the time the order
was issued, but he assumed they were because he had inspectors at
the mine that day, and had no reason to believe that no one was
underground. He stated that "knowing there were miners underground I wanted to issue the Order to remove those persons to
make sure of their safety" (Tr. 128). He confi rmed that the B
and C seams are considered one mine because they are interconnected and have a common ventilation system. However,
at the time the order was issued he did not calculate the
available underground ventilation or ventilation air pressures
(Tr . 130) .

Mr. Biesinger stated that even though Inspector Brunati
reported zero percentage methane readings in the B seam, and had
sampled the air at the bottom of the borehole, this did not
affect his decision to issue the order because "what he had down
there didn't significantly change what was occurring· in the shaft
and it would not change the occurrence if the explosion
propagated down that borehole into the underground mine"
(Tr. 132). He also believed that toxic pvc fumes would come up
the shaft and down the borehole through the valve, and since
•moke was smelled in the mine this indicated to him that there
was an open connection and that there was a transfer of air or
gas between the shaft and the underground portion of the mine
(Tr. 134). He did not, however, know the water level in the
ahaft at the time of the decision to issue the order, and he

945

confirmed that he was at the site for over an hour before making
the decision (Tr. 138). Mr. Biesinger explained what was done
before the order was lifted verbally at approximately 4:30 p.m.
(Tr. 139-142).
Qn cross-examination, Mr. Biesinger confirmed that he was
advised about the borehole connection at 10:45 a.m., when he
•poke with Mr. Brunati, and shortly thereafter spoke with
Mr. Kuzar. They made the decision to issue the order to Mine 33,
but he could not recall the precise time when the decision was
aade and stated that "it might have been 11:30 A.M." (Tr. 146).
He did not telephone the mine in advance of inspector Colton's
arrival there , nor did he speak with Inspector Davis at Mine 33 .
He stated that Mr. Brunati informed him that the borehole valve
had been shut and that someone was stationed at the bottom of the
borehole with a co detector (Tr. 149). He confirmed that the air
coming by the bottom of the borehole in the mine was going to the
returns and not to any working section (Tr. 150). He was aware
that the mine had a co monitor warning system in the active
working sections, and confirmed that the air coming out of the
shaft was being monitored for carbon monoxide, methane, and
oxygen (Tr. 15~) .
Mr . Biesinger confirmed that an explosion would require
methane, an ignition source, and sufficient oxygen , and he
reviewed Mr . McElhoes notes with respect to the co readings, and
confirmed that they show "a trend downward in the CO", and that
these recordings were made while water was being dumped down the
shaft (Tr . 156) . He confirmed that when the decision to issue
the order was made the co had declined from a nigh of 126 parts
per million to 19 parts per million (Tr . 156).
Mr. Biesinger confirmed that the shaft construction plan was
approved by MSHA. He stated that the Lanham Shaft also had water
rings and that when the explosion occurred it came down the
shaft , and when it encountered water, it went back up the shaft.
He confirmed that the fatality in that incident occurred on the
·surface , that no one was near the bottom of the shaft, and it was
possible that the B and c seams were working at that time
(Tr . 158) .
Mr. Biesinger stated that if there is no explosion any
products of combustion would not 90 through the water and the
borehole , and one can expect the main force of the explosion to
90 up the shaft . Although the force of an explosion dissipates
as it travels, it will sometimes pick up speed and force if fuel
is continually being added (Tr. 160) . He confirmed that he did
not know the methane percentages at any specific point in the
•haft. He stated that when he went down the shaft to see if the
fire was out he could not see the E seam because it was behind
the concrete shaft wall and he could not tell what was happening
in that seam (Tr. 161).
94 6

In response to further questions, Mr. Biesinger stated that
the mine co monitoring system had no bearing on the issuance of
the order because that system does not prewarn anyone and only
aonitors the amount of co in the mine after the fact (Tr. 163) .
Be confirmed that he knew about the borehole connection before
the decision was made to issue the order (Tr. 166).
John A. Kuzar, MSHA Johnstown Sub-District Manager,
testified as to his mine experience and training, including
the investigation of the Lehman shaft explosion, and a simila.r
incident at Bethlehem's Revloc Shaft in 1979 or 1980
(Tr. 167-172 )0 He stated that he was informed of the D-East
shaft fire on March 11, 1993, by a telephone call from acting
subdistrict manager Robert Nelson. Mr. Kuzar then telephoned
Mr. Biesinger at the mine site, and was briefed on the efforts
being made to address the fire. Mr. Kuzar assumed that a
section 103(k) order was in place, but there was no discussion
about a connection between the shaft and the mine. He stated
that there were five or six subsequent telephone calls to
Mr . Biesinger, and that the decision to issue the imminent danger
order was made "on the second call after he had evaluated the
area, knew more of what was going on, knew that there was a
physical connection between that shaft and underground workings
of the mine" (Tr. 176).
Mr. Kuzar stated that during his second telephone conversation with Mr. Biesinger he was informed of the connection of
the borehole pipe into the B seam. There was no discussion about
any valve at the bottom of the borehole pipe and he was not
apprised that MSHA Inspector Nevin Davis was in the B seam
in close proximity to the borehole pipe. At that point in time,
the decision was made to remove the employees from the B and C
mine seams, and Mr. Kuzar confirmed that it was basically a joint
decision based on the facts presented to him by Mr. Basinger,
particularly the fire in the shaft, and the physical connection
between the borehole pipe and the B seam (Tr. 178). Although
Mr. Kuzar alluded to a concern about the shaft ventilation,
petitioner's counsel asserted that there were no adverse
ventilation conditions where the miners were working underground
(Tr . 182-183) 0
Mr. Kuzar stated that the mine "was the gassiest in the State
of Pennsylvania" and that this was considered when the decision
to issue the order was made (Tr. 183). He stated that if he had
known about the valve at the bottom of the borehole pipe it would
not have changed his decision, and he explained as follows at
(Tr. 185-186):
A. That valve, the way I understand it was a two-inch
- I don't know, it was a two-inch valve. That valve
would probably have blown off that pipe and then there's
no assurance that I have that there was not any gasses or
947

anything coming out around that pipe. I don't know.
wasn't there to see it. But as far as the valve in
itself, it wasn't irrelevant to me.
Q.

I

You said it would have come off, if what happened?

A. If I had an explosion in that shaft and the forces
went into that mine, I don't think that little valve
would stop those forces.
Q.

And what type of explosion were you concerned about?

A.

Methane.

Mr. Kuzar stated that the respondent's operations Manager
Stickler called him and expressed his concern and belief that the
order was not justified. After Mr. Stickler advised Mr . Kuzar
that he could not guarantee that no one working underground would
be affected by any explosion, Mr. Kuzar informed Mr. Stickler
that "on the side of safety we need to pull your mine 0 and
advised him· that he would "try to get it back into production as
fast as we can° (Tr. 191).
On Cross-examination, Mr. Kuzar confirmed that he was not
told about the borehole valve, and he was not sure that he was
aware of the borehole prior to March 11 (Tr. 203) . He stated
that the borehole is used to remove water from the mine when
sinking a shaft, and this is done by water rings connected to the
borehole. He assumed that the borehole will fill up with water
if the valve is closed (Tr. 204). He confirmed that Mr .
Biesinger did not inform him that Inspector Davis was
underground, and that he first learned of this in preparation for
the hearing in this case (Tr. 205).
Mr . Kuzar stated that the shaft was inspected every month
while it was under construction, and the mine was on a five-day
spot inspection cycle because of high methane liberation
(Tr. 206-207) . He confirmed that the injuries resulting from the
Lehman and Revloc shaft explosions occurred on the surface
(Tr. 208). He confirmed that in order for the underground mine
gob area to be involved in any explosion from the shaft, the
shaft explosion would have to travel from the shaft, down the
borehole , into the mine and then propagate some distance in the
aine (Tr. 209).
M$HA Inspector Nevin J. pavis, testified that he has held
that position for 17 years, and previously worked as a miner and
aection foreman . He has also conducted seven or eight methane

948

ignition investigations, but has not investigated any shaft
fires. He confirmed that he was at the No. 33 mine on March 11,
1993, conducting a five-day spot methane inspection. At
approximately 9:15 A. M. he was contacted on the mine phone by
aine foreman William Moyer who informed him that there was an
ignition or a fire at the D-East shaft. He then spoke with MSHA
Inspector Sam Brunati, who was on the surface, and he confirmed
what Mr . Moyer had told him (Tr. 213-217).
Mr . Davis stated that Mr . Moyer informed h i m that he was
going to send a foreman underground to close the borehole valve,
and Mr . Davis then called Mr. Brunati and informed him that he
was close to the borehole area and would go there to see what was
going on . While on his way to the borehole area, Mr. Davis met
two mine foremen, and they then met foreman Dan Horn approximately 300 feet from the borehole area . Mr. Horn informed him
that when he first arrived at the borehole there was basically no
methane but he had noticed or smelled what he thought was smoke,
but it had dissipated and he closed the valve at 9 : 28 A. M.
(Tr . 217-220) .
Mr . Davis stated that he checked the borehole area for
methane and oxygen levels and took some air bottle samples . He
found no methane and the results of the bottle samples did not
indicate any problems. He then reported the results of his
borehole inspection to Mr . Brunati who then related them to
"some of the people over the shaft area" and "to Mr . Biesinger
probably" (Tr. 222). Mr . Davis then met foreman Ralph Naugle
who was on his way to monitor the air with C02 detectors, and
mine inspector Steve Alexo who was bringing in the detectors .
Mr . Davis then left the area and went to the surface, and since
his inspection activities were completed, he left the mine
(Tr. 223) .
Mr. Davis stated that when he was close to the borehole pipe
he did not smell smoke, but that "off to the corner or in the
crosscut there where it was stripped off pretty heavy, it looked
like it could have been smoke -- or it could have been humidity
too but I couldn't tell", and that he reported this to.
Mr . Brunati (Tr. 224).
On cross examination, Mr . Davis· stated that the mine area and
floor at the location where the borehole penetrated the mine was
wet and that the valve was closed when he got there and he
observed no water or smoke coming out of the valve (Tr. 225).
Mr. Davis identified Exhibit 0-1 as the results of the bottle
•amples that he took, and they show .010 percent methane an .0006
percent carbon monoxide. The oxygen reading of 20.91 percent was
normal (Tr. 227-228).
Referring to his notes (Exhibit G-7), Mr . Davis read a
notation "Both valves closed at this time, water filled the pipe
949

about one and a half hours at four gallons per minute", and he
indicated that he received this information from engineer Larry
Neff. He confirmed that Mr. Naugle was going to stay in the
track entry and walk over to the borehole area every fifteen
ainutes ~o monitor for carbon monoxide (Tr. 229-230).
Respondent's Testimony and Eyidence
I,arry E. Neff, Field Engineer, Cambria Mine 33, testified
that his duties include major surface and underground
construction and emergency repair work. He stated that he is
certified by MSHA to test for methane gas, and that he was one of
two contact persons for the respondent in connection with the
construction of the shaft on March 11, 1993. He stated that he
returned a call from Ray Peterman at 8:30 A.M. that morning and
was informed that there was an ignition in the shaft and that
there was a fire at the bottom of the concrete. He advised
Mr. Neff to dump water down the shaft and that he would calculate
how much water would be needed to fill the 17 and one-half feet
area from the shaft to the air seal. Mr. Neff then spoke to
shift foreman Mike curtis at the mine and asked him to send
someone to close the borehole valve because it was the only
connection between the shaft fire site and the underground mine
(Tr. 232-238).
Mr. Neff described the borehole valve as a six-inch cast iron
valve rated at 200 pounds for water, oil or gas. He stated that
he proceeded to the borehole area with Mr. Davis and met Dan Horn
who informed him that he had shut the valve at approximately
9:30 A.M. Mr. Horn advised him that he had smelled smoke upon
his arrival, but not after he shut the valve (Tr. 241).
Mr. Neff stated that the borehole filled with water at the
rate of three to four gallons a minute and that it would fill up
to the water ring and then discharge and cascade down the shaft
wall. He described the pipe and the water rings and explained
their functions. In his opinion, the water in the borehole pipe
would serve as a barrier to the passage of any fire or gases from
the shaft, and it would also serve as an explosion barrier and
would redirect it up the shaft and borehole (Tr. 243-248).
Mr. Neff stated that voids are intentionally left behind the
concrete shaft lining in order to allow the water behind the
ahaft wall to travel down into the water rings. In his opinion,
if methane accumulated between the concrete and shaft wall and it
ignited and exploded, it would come in through the center of the
ahaft and would not destroy the wall (Tr. 250). He did not
believe that there was any reasonable likelihood that an
explosion in the shaft would propagate into the mine workings
because "I know what we had ••• it was like a fire in a SS-gallon
drum. The fuel was outside it and the fire was outside it. As
long as you keep the fuel away, what's the problem" (Tr. 252).
950

He explained that the only ignition source connection between the
abaft and the underground mine was closed when the borehole valve
was closed. He confirmed that he has experienced two prior shaft
explosions, and in both cases the direction of force was up the
abaft (Tr. 252). In the instant case, he believed that any fire
or iqnition source coming down the borehole would be extinquished
by the water filling up the borehole and effectively sealing it
(Tr. 255).
Qn cross-examination, Mr. Neff stated that he had two years
of formal college education with an associate degree in surveying
from Penn State and 15 years of field experience (Tr. 256). His
opinion that the water in the borehole would redirect any
explosion that met the water was based on "the path of least
resistance" (Tr. 257). He believed that any methane going down
the borehole pipe filled with water would come back up the pipe
because it was lighter. According to his calculation, the water
started filling up at approximately 9:30 a.m. at the rate of
two feet a minute, or 120 feet within an hour (Tr. 258).
Mr. Neff stated that there was no problem with the methane
liberating in the shaft before the fire, and it was less than
one percent, but increased to more then two percent after the
fire started . Although there was a potential for the coal in the
E seam to burn during the fire, a post-fire inspection indicated
that this did not happen. In his opinion, the only thing
necessary to protect the miners in the B and C seams was to close
the valve and crib it at the bottom of the borehole and allow it
to fill with water (Tr. 259). He stated that there was no
consideration given to leaving the active sections at the time of
the fire because the section foremen were alerted and knew what
was going on (Tr. 263). He could not speculate the magnitude of
any explosion blowing through into the B seam if there were no
water in the borehole, and commented that "I can't see how any of
its going to go down that hole, this is a six-inch borehole"
(Tr. 265) . Even if there were no water in the pipe it would
still be his opinion that it was not reasonably likely that a
shaft explosion will travel over to and down the borehole into
the mine. He based this on his experience with two prior shaft
explosions, both of which went up the shaft (Tr. 27'3).
Daniel E. Horn, respondent's Head Mining Engineer,
testified as to his mining and maintenance engineering
experience, including ventilation, and he confirmed that he
holds a 1982 B.S. degree in mining engineering from the
University of Pittsburgh, and is a certified mine foreman and
registered professional engineer. He has also received mine
rescue training, has served on the mine rescue team, and is a
current member of the state mine rescue team . He and Mr. Neff
developed the specifications for the construction of the D-East
ahaft, and he served as the project engineer on a day-to-day
basis (Tr. 273-280).
951

Mr. Horn stated that he was serving as the section foreman
during the mining of the lonqwall on March 11, 1993, . and he
described the working areas shown on two mine maps, including the
•hafts, and explained the ventilation (Exhibits 0-2 and 0-3,
Tr. 281-289).
Mr. Horn confirmed that shift foreman Mike curtis called him
and asked him to go to the D-East shaft and close the borehole
valve because there was a problem, but Mr. CUrtis did not explain
his request further. Mr. Horn stated that he went to the
borehole, checked for methane as he approached it, and noticed
"a small amount of smoke at the borehole location," and closed
the gate valve. The immediate vicinity of the borehole was
heavily cribbed and he stated that "when I got right up to it
there was a small amount of smoke right where the borehole pipe
was discharged. It was discharging in a small amount of water"
(Tr. 291). He tested zero percent methane, the floor and cribs
were wet, and the borehole valve was "wet and cold to the touch"
(Tr. 292). He initially believed that hoses were burning, and
the negative pressure would draw air down the shaft and pipe into
the mine. However, once the valve is shut, the air is stopped
and the pipe will begin filling with water (Tr. 293).
Mr. Horn stated that after leaving the borehole area he met
Mr. Davis and Mr. CUrtis, and they returned to the area and took
air readings at the regulator and checked for methane, and
Mr. Ralph Naugle came to the area to stay and monitor the co.
Mr. Horn stated that he did not expect that an explosion in the
shaft would propagate into the mine, and he went back to work
with his crew. He did not believe that the mine needed to be
evacuated based on what he knew at 10:00 a.m. when he left the
borehole area (Tr. 299). After leaving the mine, he went to the
shaft area and later went down the shaft in the bucket and
observed that the water in the shaft had reached the edge of the
concrete (Tr . 302). Once the borehole valve was closed and
filled with water, he did not believe that any combustion
products from the fire could travel through the borehole into the
mine because of the air ventilation differential which would
course any air and gas mixture up the shaft rather than down the
water sealed borehole .pipe (Tr. 302). He did not believe it
reasonable to expect an explosion in the shaft to propagate down
the borehole rings or into the mine itself because the shaft
bottom was very wet and the nearest gob was 1,000 feet away
(Tr. 302-304). He did not believe there was any reason to
evacuate any miners from the B or c mine seams because they were
not exposed to any hazards (Tr. 305).
On cross-examination, Mr. Horn confirmed that he has never
worked in proximity to a methane explosion and that his opinions
with respect to the explosion hazards are based on his
familiarity with ventilation principles, mine gases, and the
construction of the shaft. He confirmed that be was not present
952

on the surface immediately prior to the issuance of the imminent
danger order (Tr . 306). He stated that the borehole pipe area
between the lowest water ring and the valve was full of water and
no air was moving . He believed the water was up to 30 feet in
the pipe when he and Mr. Davis arrived there (Tr. 309).
Robert E. Roland, respondent's mine inspector and former
-.ction foreman and mine rescue team member for 21 years,
testified that his experience includes fighting two mine fires in
1977 and approximately 1988, and the investigations of two shaft
explosions . He has also received training on mine fire fighting
(Tr. 313-319).
Mr. Roland stated that he was informed of the shaft fire
at approximately 8:45 a.m. by a telephone call from Larry Neff .
He went to the shaft area and observed the efforts made to
extinguish the fire and he made notes concerning his observations
and the co readings that were taken at the top of the borehole.
He confirmed that water was being dumped down the shaft to
extinguish the fire and when he looked down the shaft at
approximately, 1:00 p.m. he thought the fire was out because of
the decreased -CO readings and the shaft was inundated with water.
In his opinion "any flame that was down there would have never
survived the first truck load of water" (Tr. 327, Exhibit o-5) .
He saw no flames when he looked down the shaft and he was
surprised when he later learned that an imminent danger was
issued because he did not believe there was an underground hazard
and believed that the fire had been extinguished (Tr. 328).
Mr. Roland did not believe that any products -of combustion
would go down the borehole and reach the underground mine because
the water in the borehole served as a seal and water is an
acceptable and effective method of sealing off mine fires.
He did not believe that it was reasonable to expect that an
explosion in the shaft would propagate down the borehole because
no flame could propagate through the water (Tr. 329).
Mr. Roland confirmed that after further discussions with
Inspector Biesinger he went down the shaft after 3:3_0 p.m., with
mine rescue team caption Gary Scott, and he saw no evidence of
any fire until he reached the shaft bottom. He saw "two spots on
the concrete wall where it had blackened," saw some partially
burned material floating in the water, but saw no fire.
CO readings were continuously being taken as he went down the
ahaft and no CO was present . The methane readings decreased as
they reached the shaft bottom, and he noted measurements of three
to four-tenths in his notes (Tr. 333). He confirmed that a
aethane reading of 3 percent was made as he went down the shaft,
but he attributed this to the methane that was being flushed out
of the shaft by the exhaust ventilation (Tr. 334, 340).

953

On cross-examination, Mr . Roland believed that methane was
burning in the shaft during the fire. He estimated that the
abaft excavation had reached 840 feet, and that the water reached
the level at the bottom of the concrete at some point after he
went down the shaft after 3 : 30 p . m. He believed the fire was at
the bottom of the concrete but that it had been extinquished
before the water reached that level (Tr. 340). He did not
believe there was a hazard to underground miners because the only
opening into that mine was water sealed (Tr. 341).
Robert DuBreucg, mine superintendent, testified that he has
held that posit ion for six years, and formerly served as
super intendent , assistant superintendent, and section foreman
engineer at several other mines. He holds a 1970 B.S. degree in
mine engineering from Penn State University and is a certified
first grade mine foreman (Tr . 347). He stated that he learned
about the shaft f ire while at an inspection close-out meeting
with MSHA inspectors Sam Brunati and Bernie Kordish. Since he
knew that the only access into the mine from the shaft was the
borehole , he decided that the borehole valve should be closed so
that it would f~ ll with water and isolate the mine from anything
happening in the. shaft, and this was discussed with Mr. Brunati.
At 8:45 a . m. , f oreman Mike curtis was instructed to dispatch the
closest foreman to the borehole to shut the valve, and Dan Horn
was assiqned that task . Another person was assigned to
continuously monitor the borehole area with co detectors
(Tr. 349).

Mr . DuBreucq stated that Mr . Brunati had inspected the mine
for a long t i me, and during their brief discussion , nothing was
said to indicate that he believed the mine was at risk . After
the valve was closed, Mr . Davis came out at noon and reported
that he detected no methane or smoke and that someone was
monitoring the borehole area. After Mr. Colton issued the order
at 1 : 15 p.m., Mr . DuBreucq voiced his disagreement and informed
Mr. Colton that the re was 200 feet of solid rock between the
bottom of the shaft and the mine , that the only opening in the
mine was the borehole p i pe that was filled with water and the
valve was shut off , and that the mi ne was being monitored and
there was no co or smoke . Mr. DuBreucq stated that Mr ; Colton
told him that he was told to issue the order (Tr. 351).
Mr. DuBreucq did not believe there was any danger and stated that
Rif I thought for a second there was any danger those men would
be affected by that , I'd have yanked them long before 1:15"
(Tr. 352). He did not believe that an explosion in the shaft
would propagate down through the borehole pipe that was filled
with water. According to his calculations, it would take a force
capable of lifting a 47 million pound slab to knock the valve off
the end of the borehole pipe (Tr. 353).
Mr. PuBreucq believed that the hazard was only at the shaft
and he agreed with the imminent danger order issued for the shaft
954

and shaft surface, but not the one issued for the underground
aine (Tr. 355-356).
On cross-examinati on, Mr. DuBreucq explained how be
calculated the amount of f or~e necessary to dislodge the borehole
valve (Tr. 356-358) .
MSHA's Arguments
Citing Old Ben Coal Corp. v . Interior Board of Mine
Operations Appeals , 523 F. 2d 25 (7th Cir. 1975) f Rochester and
Pittsburgh Coal Co ., 11 FMSHRC 2159 , 2164 (November 1989); llllh
Power and Light Co . , 13 FMSHRC 1617, 1627 (October 1991) ; and
Island Creek Coal Company, 15 FMSHRC 339 , 345 (March 1993) , MSHA
arques that the courts and the Commission have recognized that an
inspector must act quickly when confronted with dangerous
conditions , that he must hav e considerable discretion i n
determining whether an imminent danger exists, and that his
decision must be supported unless he has abused his discretion.
In support of its case, MSHA asserts that the circumstances
faced by the 'inspectors at 11:00 A.M., on March 11, 1993,
justified the issuance of the contested imminent danger order .
MSHA maintains that there was an active shaft fire and other
ignition sources, and an ample source of liberated methane , and
that i t was reasonable to believe that a methane explosion was
imminent or impending.
MSHA asserts that the shaft had been liberating significant
amounts of methane during its development and excavation, that
the contractor had experienced problems in implementing
ventil ation controls sufficient to render the methane harmless,
and that on the shift prior to the fire, significant methane
readings had been taken at the shaft. MSHA concludes that in all
l ikelihood, there was methane being liberated both from the rock
strata which was cut through during the shaft excavation and from
the E coal seam, and points out that carbon monoxide and methane
readings taken by MSHA Inspector McElhoes and state i nspectors
indicated that significant amounts of methane were present. MSHA
states that in order to extinguish the fire, large quantities of
water were dumped into the shaft , and that the inspectors were
concerned that as the water level rose, methane would get trapped
in the void between the excavation periphery and the tin paning
which was installed behind the concrete bulkhead of the shaft.
MSHA asserts that the active fire in the shaft was burning
both methane and the PVC in the dust collection hose line , and
there was a clear potential for the fire to ignite the coal in
the nearby E coal seam, and that there may have also been other
combustibles in the shaft which were not definitely known at the
time and could not be accurately evaluated from the surface,
given the 800 foot depth of the shaft . MSHA a l so points to
955

Inspector Biesinger's testimony that he was concerned that the
total combustibles (hydrogen, carbon monoxide, and .methane) in
the shaft would reduce the lower explosive limit for combustible
gas in the shaft. (In other words, the gases which were burning
and being produced as byproducts of the fire in the shaft reduced
the threshold for additional gas combustion). Given all of these
factors, MSHA concludes that there was clearly an impending
danger of a methane explosion.
MSHA further points out that there was a connection between
the shaft and the B coal seam through the dewatering borehole
pipe , and that this connection provided a means for transmission
of the explosion into the active workings of the mine. Conceding
the fact that the valve on the borehole pipe had been closed
prior to the issuance of the imminent danger order, MSHA
concludes that the inspectors could hardly rely on the valve
to withstand a massive methane explosion , and that Bethenergy
acknowledged that it did not know how much force the valve on the
dewatering borehole pipe could withstand.
MSHA asserts that although Mr . Biesinger realized that once
the borehole valve was closed it would start filling up with
water, he did not know the exact amount of water in the pipe, and
the flow of water into the pipe fluctuated according to the
season . Given "the emergency circumstances" facing him at the
time, MSHA concludes that it was not reasonable for Mr . Biesinger
to take time out to calculate how much water was in the borehole
pipe prior to directing that the imminent danger order be issued.
Further, even if there were water in the borehole pipe, MSHA
asserts that an explosion could have been propelled through it.
MSHA argues that with the potential for fatal injury to
miners in the B and C seams, an inspector must act quickly and he
cannot rely on computations made in laboratory-like conditions.
MSHA points out that there were "worrisome conditions" in the B
seam itself in that there was a working section reasonably close
to the borehole pipe and the mine was extremely gassy "with vast
gob areas giving off large amounts of methane".
MSHA acknowledges that in order for an explosion to affect
the B seam, it would have had to travel through the water ring,
then down the borehole pipe and through the valve into the mine.
However, MSHA asserts that the force vectors of a methane
explosion cannot be precisely predicted, and that in an emergency
situation, the inspectors cannot rely on uncertain theoretical
predictions of what direction an explosion should travel.
With regard to Bethenerqy's reliance upon the mine's carbon
aonoxide detection system, MSHA maintains that this system would
only have indicated the byproduct of an ignition after it had
already occurr ed, and does not provide a valid reason for not
issuing the order .
956

MSHA states that the inspectors were concerned about the
transmission of noxious gases, fumes, and combustion byproducts
into the active working areas, and it points out that carbon
aonoxide was being produced by combustion and PVC in the dust
collection lines was being burned. MSHA maintains that this
reasonable concern provided another piece of the inspectors'
rationale for issuing the imminent danger order.
MSHA argues that Inspectors Kuzar and Biesinger, the
individuals who made the imminent danger decision, were not
novices, and that they have impressive backgrounds and knowledge
regarding mine ventilation and mine explosions, and extensive
experience with Mine 33 and with prior shaft explosions. MSHA
concludes that they did not act precipitously, and it points out
that when mine manager Stickler was asked by Mr . Kuzar whether,
given the ongoing shaft fire, he could guarantee the safety of
the miners in the mine, Mr. Stickler replied he could not
(Tr. 191). Under the circumstances, MSHA concludes that
Mr. Kuzar could not take the chance of leaving the miners in
the mine.
MSHA asserts that the decision by Mr. Kuzar and Mr. Biesinger
to issue the imminent danger order was reasonable given the
information available to them at the time and the circumstances
which were presented, and that they did not abuse their
discretion. MSHA further asserts that they acted responsibly in
keeping with the weighty mandate given to them by Congress -- to
assure the safety and health of the miners.
Citing Island Creek Coal Company, supra, and Wyoming Fuel
k2..&., 14 FMSHRC 1282, 1291 (August 1992), MSHA concludes that it
has clearly met its burden of proof to show by a preponderance of
the evidence that "the conditions or practices, as observed by
the inspectors, could reasonably be expected to cause death or
serious physical harm, before the conditions or practices could
be eliminated." 15 FMSHRC at 346, 14 FMSHRC at 1291 . MSHA
further concludes that the imminent danger order was
appropriately issued .
Bethenerqy's Arguments
Citing the statutory language of section 107(a) of the Act,
and the legislative history, Bethenergy argues that there must be
aome degree of imminence to support an imminent danger order . In
aupport of its conclusion that the hazard to be protected against
by such a withdrawal order must be impending so as to require the
immediate withdrawal of miners, Bethenergy provides the following
quotes from the legislative history to support its arguments as
to when an imminent danger is present:

957

" ••• the situation is so serious that the miners must be
removed from the danger forthwith when the danger is
discovered without waiting for any formal proceeding or
notice."
• ••• the seriousness of the situation demands such
immediate action because delays, even for a few minutes,
•&Y be critical or disastrous."
Imminent danger orders are concerned with "any condition
or practice ••• which may lead to sudden death or injury
before the danger can be abated . "
Imminent danger orders deal with "situations where there
is an immediate danger of death or serious physical
harm. "
Bethenerqy argues that the issuance of an imminent danger
order in the statutory scheme of enforcement is an extraordinary
power that is avai lable only when the "seriousness of the
situation demands such immediate action" . Bethenergy asserts
that an inspector must determine whether the hazardous conditions
presents a danger of death or serious injury that is imminent or
presents an impending threat to life and limb without considering
the "percentage of probability that an accident will happen . "
Bethenerqy concludes that only by limiting imminent danger orders
to such impending threats does the imminent danger provision
assume its proper function under the Act . Bethenerqy suggests
that if the section 107(a) imminent danger provisions of the Act
are interpreted to include any hazard that has the potential to
cause a serious accident at some future time, the distinction is
lost between a hazard that creates an imminent danger and a
violative condition that "is of such nature as could
significantly and substantially contribute to the cause and
effect" of a mine safety hazard, pursuant to section 104(d) (1) of
the Act.
In support of its argument that Congress intended that there
be some degree of imminence to support a section 107(a) imminent
danger order, Bethenerqy cites the following commonly accepted
dictionary definition of the word "imminent": "ready to take
place: near at hand: impending: hanging threateningly over one's
head: menacingly near." Webster's Third New International
Dictionary CUnabridged) at 1130 (1986). Bethenerqy also cites
the commission's decisions in Utah Power and Light Company,
13 FMSHRC 1617, 1622-23 (October 1991), and Wyoming fuel Company,
14 PMSHRC 1282, 1290-91, (August 1992), in support of the
necessity of the imminence of the danger associated with
aection l07(a) orders.
Applying the aforesaid legal criteria to the facts of this
case, Bethenergy argues that it cannot properly be concluded that
958

an imminent danger existed for the miners working in the B and c
coal seams at the time the contested order was issued. In
•upport of its argument, Bethenergy relies on a number of factors
including the physical structure of the shaft and the borehole,
the fact that the borehole was filled with water, the fact that
the fire in the shaft was effectively extinguished by the time
the order was issued, the mechanics and physics of shaft
explosions, and the distance from the working sections in each
aeam.
Bethenergy maintains that the structure of the shaft and
borehole precluded the transfer of any shaft explosion into the
underground B seam through the 6 inch pipe that extended into the
mine where it was closed off by a valve which was supported by
crib blocks. Bethenergy asserts that it was unlikely that an
explosion would travel up the shaft from the area of the fire,
the only source of ignition in the shaft, then turn more than
90 degrees to enter the down~ard sloping pipe connection, travel
to the borehole, enter it through the 4-5 inch opening, and make
another turn to travel down the borehole. Bethenergy maintains
that such a scenario directly contravences a fundamental fact
that explosion "forces follow the path of least resistance and
would go up the shaft that was open to the sky, and not up the
shaft, across to the borehole and down the borehole, as explained
by the credible testimony of Mr. DuBreucq, Mr. Horn, and
Mr. Neff.
With regard to MSHA's reliance on two previous shaft
incidents at Bethenergy's Lehman and Jones Portal Shafts,
Bethenergy points out that both shafts were opened to the
atmosphere, both were restricted at the bottom of the shaft,
both had dewatering boreholes and the explosion forces traveled
up the shaft in both cases because this path offered practically
no resistance to the explosion forces. In the Lehman shaft
explosion there was no damage to the water rings doors, water
rings or the borehole.
Bethenergy further points out that the closed valve at the
end of the borehole was an additional factor that precluded an
explosion propagating into the mine, and that in order for this
to occur, the valve would have to be destroyed. However,
Bethenergy asserts that the valve was rated at 200 psi with a
safety factor of 3, and it was held in place by crib blocks.
Further, Mr. DuBreucq testified that in order to impact the valve
with a force of 600 psi, it would take 47 million pounds of force
being generated in the shaft, and the top of the shaft would have
to be capped with a substantial amount of concrete in order to
direct this much force into the borehole. Mr. DuBreucq concluded
that an explosion of this magnitude would be unlikely given the
amount of methane in the shaft.

959

Bethenerqy arques that the fact that the borehole was filing
with water is particularly significant since the .presence of
water in the borehole would prevent the propagation of an
explosion and would direct any forces to the open end of the
borehole at the surface, just as it did at the Lehman &haft .
Bethenergy cites Mr. Neff's calculation that the borehol e would
bave been- filled to the first water ring at the time the order
was issued . Bethenergy concludes that the propagation of an
explosion through the water was not possible since there would be
no fuel to sustain the explosion .
With regard to MSHA ' s theory that methane might have
accumulated in the void behind the shaft liner, Bethenerqy
maintains that Mr . Neff's analysis of an explosion in this void
is more credible than MSHA's witnesses, and he explained that if
any of the three confining structures were to fail it would be
the concrete shaft liner since there is nothing to displace in
the other two directions because the strata is solid , whereas the
concrete liner has open air on the other side. Although
Mr . Biesinger testified that the potential ignition source behind
the liner would be the fire , Bethenergy points out that if the
water rose to the level of the bottom of the liner, the fire
would be extihquished .
Bethenerqy asserts that MSHA has produced no credible
evidence to support any conclusion that an explosion would
involve the borehole and that its theory defies common sense as
shown by the prior two shaft explosions that went up the shaft
and did not result in damage to the water ring doors, water
rings, or borehole .
Bethenergy arques that Inspectors Kuzar and Biesinger were
aware of the structure of the shaft, and their claims that they
decided to issue the order when they learned of the borehole
connection between the shaft and the mine must be d i scounted.
Bethenerqy states that the shaft was being constructed in a
standard method, and Mr . Kuzar conceded he woul d or should have
known of the existence of the borehole prior to March 11, 1993.
Further, he knew that such boreholes were used to de-water the
shafts, and that they normally had valves on them, and knew that
closing the valve causes the borehole to fill with water, yet he
and Mr. Biesinger clearly did not consider this information in
making their evaluation of the potential hazard.
Bethenerqy states that the evidence shows that at the time
the order was issued, any explosion hazard posed by the shaft
fire was decreasing, if not non-existent, because the fire was
the only source of ignition in the shaft, and it was effectively
extinquished by the time the order was issued . In support of its
conclusions, Bethenergy states that the carbon monoxide measureaents at the top of the shaft, the only tangible information

960

concerning the status of the fire, showed that by the time the
order was issued, the fire was in all likelihood extinguished
and no threat to the miners in mine 33 could have ·existed.
Bethenergy suggests that even with a fire burning in the shaft,
MSHA did not show that an explosion was imminent.
In response to MSHA's assertions concerning the backgrounds
and experience of Mr. Kuzar and Mr. Biesinger, Bethenergy takes
the position that they did not apply their knowledge and training
to evaluate and analyze the situation at hand, and did not
evaluate the carbon monoxide readings or consider the fact that
they were not real time measurements of the status of the fire.
Relying on the co readings that were being made, and the
testimony of its mine inspector Roland, an experienced fire
fighter and member of the mine rescue team, Bethenergy concludes
that the fire was extinguished very early on in the process of
dumping water down the shaft.
Discussing the elements necessary for a methane explosion,
which include an explosive mixture of methane and oxygen,
Bethenergy points out that the methane measurements from the time
MSHA arrived at the shaft to the time the order was issued were
well below the explosive range of 5-15 percent at all times; that
all methane measurements recorded in the inspector's notes during
the relevant time period were below 1 percent; and that the
highest concentration of methane actually measured by MSHA from
the time Inspector Colton arrived at 9:50 a.m., to the time the
order was issued at 1:15 p.m. was 0.2 percent.
Bethenergy concludes that all of the information available to
MSHA indicated that an explosive mixture was not present, and
that the inspectors speculated that methane might be contained or
trapped in the space between the shaft liner and the natural wall
of the shaft, ignored the information available to them at the
time, and relied solely on their speculation that an explosive
mixture of methane might exist. Bethenergy states that the
"speculative potential for a remote possibility does not warrant
the issuance of an imminent danger order", and citing Utah Power
and Light Co .. supra, concludes that the conditions in the shaft
did not present an "impending" or "menacingly near" hazard
requiring the immediate withdrawal of miners.
Bethenergy states that the closest working section to the
borehole was approximately 2,000 feet away, that the closest
aection in the c seam was at least 25,000 feet away, 8,ooo of
which was solid rock. Bethenergy notes the absence of any MSHA
evidence that an explosion would likely propagate even to the
closest section, let alone to those in another seam of coal
approximately 4 miles away. It also notes the lack of any
explanation by MSHA's witnesses as to how an explosion could
propagate through the water in the borehole, through the closed
valve and through the B-seam mine. Although Mr. Kuzar testified
961

that an explosion could conceivably propagate to t~e longwall
gob, Bethenergy points out that he did not provide any credible
evidence of how this would occur without additional fuel,
particularly since there was no methane in the B seam borehole
area that would propagate any explosion. Bethenergy further
points out that the borehole area was extremely wet, the entries
were rock· dusted, and there is no evidence that any other areas
of the mine were not properly rock dusted.
Bethenerqy discounts MSHA's argument that the B and C seam
ventilation were interconnected, and it points out that MSHA's
witnesses failed to explain how this would affect the potential
of a hazard from an explosion in the shaft . Moreover , Bethenergy
asserts that the interconnections are not simple and that the
working sections in the C seam are ventilated by different air
shafts than those that serve the shaft area of the B seam as are
the other mine sections and areas .
Bethenergy concludes that the MSHA personnel failed to
consider the actual conditions in the mine at and near the
borehole location . Inspector Davis had directly observed the
conditions that morning, and his information was relayed to
Mr. Biesinger. Mr. Biesinger and Mr. Kuzar were more than aware
of the general conditions in Mine 33, including the generally wet
conditions, and it was clear that there could be no reasonable
expection that the shaft fire would cause an explosion in the
shaft, that it would propagate up the shaft, across to the
borehole, down through the water in the borehole, through the
closed valve, and then through the mine. Bethenergy concludes
that based on the available information, no imminent danger order
could properly be issued.
Bethenergy concludes that the lack of urgency by MSHA's
personnel demonstrate the absence of an imminent danger .
Bethenergy notes that Mr. Biesinger testified that he and
Mr. Kuzar had decided to issue the order some time between
11:00 a.m. and 11 : 30 a.m., after his telephone discussion with
Mr. Brunatti at 10:45 a.m., and that Mr. Colton was told to go to
the mine to issue the order at approximately 12:15 p.m., approximately one hour before he wrote the order at 1:15 p.m.,
Mr. Colton drove to the mine office rather than using the
telephone to call the mine office, and Mr. Biesinger did not try
to call mine personnel to tell them that Mr. Colton would be
coming to the mine to issue an order requiring withdrawal of all
of the miners underground.
Bethenergy argues that MSHA's lack of urgency and leisurely
pace may be contrasted with the actions of the MSHA personnel
in issuing withdrawal orders at the shaft itself. When MSHA
personnel learned of the fire, a lOJ(k) order was issued over the
telephone, and when the 107(a) order was issued at the shaft, it
962

was issued orally and then reduced to writing. In both
aituations the construction crew at the shaft had already exited
the shaft, yet MSHA acted with $Ome sense of urgency. However,
when it came to removing the miners at Mine 33 from MSHA's
perceived imminent danger, the process changed. Rather than
iasuing an immediate verbal order, the order was delivered orally
in person, almost two hours after the determination to issue the
order was made, and when MSHA purportedly decided that an
explosion could occur at any moment and that such an explosion
could reasonably be expected to cause death or serious physical
harm to the miners underground.
Bethenergy asserts that the lack of imminence is further
confirmed by the actions of the two inspectors who were at the
No. 33 mine. Bethenergy points out that Inspector Davis
inspected the borehole and knew full well that it connected the
mine to the shaft, and he was aware that a limited amount of
smoke had been observed in the area of the borehole by Mr . Horn
before the valve was closed. He was also aware that there was a
fire in the shaft and that miners were working underground, yet,
he did not i~sue any imminent danger order.
Bethenergy further points out that Inspector Brunati was
aware of the same facts as Mr . Davis because Mr. Davis had
reported them to him, and he discussed the situation with
Mr. DuBreucq. Yet Mr. Brunati did not issue any imminent danger
order. Bethenergy concludes that the actions of two experienced
inspectors substantially undermines any argument that an imminent
danger existed, as does the lack of urgency of the MSHA personnel
at the shaft.
Bethenergy argues that the witnesses agreed t hat any
explosion forces from a shaft explosion would 90 to the surface,
but disagreed on whether or not such forces would also go down
the borehole. Although access to the shaft area was supposedly
restricted, Bethenergy points out that there were numerous people
near and right at the opening during the period that MSHA
determined that an explosion was imminent. The air quality
measurements were not obtained remotely, and the trucks dumped
their water at the edge of the shaft. Given the fact that the
two shaft explosions mentioned by the MSHA witnesses both
involved injuries to persons on the surface, and not underground,
Bethenergy argues that the relative absence of precautions on the
surface clearly suggest that an explosion was not considered to
be imminent.
Bethenergy concludes that MSHA failed to show that the event
the MSHA personnel were concerned with was even possible , let
alone reasonable, and also failed to show that based on the
information available to the MSHA personnel that an imminent
danger order could properly be issued. Even if the circumstances
of the shaft fire are evaluated from the perspective of
96 3

Messrs. Biesinger and Kuzar, Bethenergy believes it is clear that
the conclusion that the shaft fire presented an imminent danger
to the miners underground was not reasonable because they knew
the borehole was connected at only two locations to the s~~t,
that the shaft fire was 200 feet below the lowest connectibn,
that shaft explosions would qo up the shaft to the open, and that
the working sections were some distance from the bottom of the
borehole. Further, Mr. Biesinger knew the valve connection was
closed and Mr. Kuzar knew that there was probably a valve in the
borehole, but did not inquire as to its status. They both knew
if the valve was closed that the borehole would fill with water,
that there was no fuel in the borehole to propagate an explosion
since their monitoring of the borehole indicated O.l percent
methane in the borehole between 11:00 A.M. and 12:30 P.M. They
also knew that Inspector Davis had visited the borehole and found
no methane that could propagate an explosion, that remedial
efforts to put out the fire were occurring, and more importantly,
they had information available to them that the co readings had
been steadily and significantly declining.
Finally, in anticipation of any claim by MSHA that some of
the information, particularly concerning the co readings, was not
available when Mr. Biesinger and Mr. Kuzar decided to issue the
order, Bethenerqy takes the position that they cannot take
advantage of their own delay, and that MSHA personnel had
sufficient information available to them that would have enabled
them to make a reasoned, rational and timely decision.

Since

they did not utilize it and Mine 33 was evacuated for no
justifiable reason, Bethenergy concludes that the order should be
vacated.
Findings and Conclusions
Section 107(a) of the Mine Act, 30 u.s.c.
follows:

§

817, provides as

If, upon any inspection or investigation of a coal or
other mine which is subject to this Act, an authorized
representative of the Secretary finds that an imminent
danger exists, such representative shall determine the
extent of the area of such mine throughout which the
danger exists and issue an order requiring the operator
of such mine to cause all persons, except those referred
to in section 104(c), to be withdrawn from, and to be
prohibited from entering, such area until an authorized
representative of the Secretary determines that such
imminent danger and the conditions or practices which
caused such imminent danger no longer exists. The
issuance of an order under this subsection shall not
preclude the issuance of a citation under section 104 or
the proposing of a penalty under section 110.

96 4

Section 3(j) of the Mine Act, 30 u.s .c. § 802(j), defines an
•imminent danger" as "the existence of any condition or practice
in a coal or other mine which could reasonable be expected to
cause death or serious physical harm before such condition or
practice can be abated."
In Old Ben Coal Corp. v. Interior Board of Mine Operations
Appeals, 523 F.2d 25, 32 (7th Cir. 1975) (quoting Freeman Coal
Mining Corp. , 2 IBMA 197, 212 (1973), aff'd ~ nom. Freeman
Coal Mining Co. v. Interior Board of Mine Operations Appeals,
504 F.2d, 741 , 743 (7th Cir. 1974), the determining test of
whether an imminent danger exists was stated as follows:
[E)ach case must be decided on its own peculiar facts.
The question in every case is essentially the proximity
of the peril to life and limb. Put another way: Would a
reasonable man, given a qualified inspector's education
and experience, conclude that the facts indicate an
impeding accident or disaster, threatening to kill or to
cause serious physical harm, likely to occur at any
moment, b~t not necessarily immediately? The uncertainty
must be of a nature that would induce a reasonable man to
estimate that, if normal operations designed to extract
coal in the disputed area proceeded, it is at least just
as probable as not that the feared accident or disaster
would occur before elimination of the danger.
In Rochester & Pittsburgh Coal Company v. Secretary of Labor,
11 FMSHRC 2159, 2163 (November 1989), the Commission adopted the
position of the Fourth and Seventh Circuits in Eastern Associated
Coal Corporation v. Interior Board of Mine Operations Appeals,
491 F.2d 277, 278 (4th Cir. 1974), and Old Ben Coal Corp. v.
Interior Board of Mine Operations Appeals, 523 F . 2d 25, 33
{7th Cir. 1975), holding that "an imminent danger exists when the
condition or practice observed could reasonably be expected to
cause death or serious physical harm if normal mining operations
were permitted to proceed in the area before the dangerous
condition is eliminated." Canterbury Coal Co . , 5 IBMA 51 (1975),
held that "speculative potential for a remote possibility does
not warrant the issuance of an imminent danger withdrawal order."
In affirming the imminent danger order issued in the 1989
Rogbester & Pittsburgh Company case, supra, at 11 FMSHRC 2164,
the Commission rejected an argument based on the "relative
likelihood" of injury resulting from the cited conditions, and
atated as follows at 11 FMSHRC 2164:
R & P's argument also fails to recognize the role played
by MSHA inspectors in eliminating dangerous conditions.
Since he must act immediately, an inspector must have
considerable discretion in determining whether an

965

imminent danger exists. The Seventh Circuit recognized
the importance of the inspector's judqment: ·
Clearly, the inspector is in a precarious
position . He is entrusted with the safety of
miners' lives, and he must ensure that the
statute is enforced for the protection of these
lives. His total concern is the safety of life
and limb • •• We must support the findings and the
decisions of the inspector unless there is
evidence that he has abused his discretion or
authority. (Emphasis added) .
Old Ben , supra, 523 F.2d at 31.
In Utah Power&· Light Co., 13 FMSHRC 1617, 1621 (October
1991), the Commission held that there must be some degree of
imminence to support a section l07(a) order and noted that the
word "imminent" is defined as "ready to take place: near at
hand: impending • •• : hanging threateningly over one's head:
menacingly near . " 13 FMSHRC at 1621 . The Commission determined
that the legislative history of the imminent danger provision
supported a conclusion that "the hazard to be protected against
by the withdrawal order must be impending so as to require the
immediate withdrawal of miners." IQ.. Finally, the Commission
stated that the inspector must determine whether an imminent
danger exists without considering the "percentage of probability
that an accident will happen." i.g.
The facts in this case establish that at the time the
order was issued Bethenergy ' s No. 33 Mine consisted of two
working coal seams, the B seam and the c prime seam. Each seam
had a longwall section and continuous miner sections, and on
March 11, 1993, the B seam longwall was not operating, but was in
the process of being moved . On that day, Bethenergy's contractor
was performing work constructing the D East air shaft which was
projected to intersect the B seam mine workings at approximately
1,030 feet, but not the c prime seam. The shaft measured
approximately 30 feet 2 inches by 18 feet 4 inches, .and it was to
provide ventilation to the D East area of the B seam. The shaft
had been constructed to a depth of 841 feet on March 11, and
there was 200 feet of strata between the bottom of the shaft and
the B seam. The shaft was constructed with a concrete liner with
a corrugated metal liner between it and the rock shaft walls .
A dewatering borehole was located parallel to the shaft
approximately eight feet away, separated from the shaft by rock
and soil, and it was constructed with a 6 inch .schedule 40 steel
pipe, which was grouted into the borehole with pure Portland
cement . The borehole was connected to the shaft at two water
ring locations at the approximate 270 foot and 620 foot shaft
levels. The water rings are designed to collect water from
966

behind the shaft liner, and the water flows by gravity through a
pipe into the 6 inch borehole pipe through a 4 or 5 inch opening.
The water rings may be reached from inside the shaft by metal
doors through the concrete shaft liner. The borehole extended
into the B coal seam and the borehole was equipped with a valve
at the end of the borehole where it entered the B •eam, and the
valve had a pressure rating of 200 psi, for oil, water, or gas.
The location of the borehole pipe where it entered the B seam was
approximately 200 feet from the shaft bottom and ·it was separated
by rock strata.
At approximately 5:15 a.m., on March 11, 1993, smoke was
detected in the shaft by employees of the shaft contractor. At
8:30 a . m., the construction superintendent entered the shaft and
observed a fire near the bottom of the concrete shaft lining.
MSHA was notified of the incident at 9:00 a.m., and water was
dumped down the shaft to extinguish the fire, and these
activities were ongoing during the day until the fire was
extinguished and the order lifted at 4:40 p.m.
At approximately 9:15 a . m., MSHA Supervisory Inspector
Biesinger inst;ructed Inspector Colton to go to the mine to
investigate the reported fire and to issue a section 103(k) order
on the shaft site. Inspector Colton arrived at the shaft area at
9:50 a.m, and he issued the order to control the fire scene. He
also issued an imminent danger order on the shaft, but did not at
this time know about the connection between the shaft and the
borehole and underground mine areas. Mr . Biesinger arrived at
the scene at approximately 10:45 a.m., with trainee Inspector
McElhoes. Mr. Elhoes was assigned to assist in the taking of
oxygen, methane, and carbon monoxide readings from the shaft
exhaust fan while fire fighting efforts continued.
At approximately 9:15 a.m ., MSHA Inspector Davis, who was
underground in the B seam conducting a spot methane inspection,
was contacted by the mine foreman by phone and informed of the
shaft fire. Mr. Davis also spoke with MSHA Inspector Sam
Brunati, who was on the mine surface, and Mr. Brunati confirmed
that there was a shaft fire. The mine foreman arranged for an
underground foreman to go to the borehole location and section
foreman Horn went to the area and closed the borehole valve at
approximately 9:28 a . m. Mr. Horn testified that when he reached
the area, he observed "a small amount of smoke" at the borehole
and that it was discharging "a small amount of water". The area
was "well cribbed" and wet, and the borehole valve was "wet and
cold to the touch". He tested for methane, and found none.
Mr. Horn, who is a mining engineer, assumed that some air
hoses were burning in the shaft, and he confirmed that any smoke
from the fire would travel through the borehole pipe and into the
underground mine. However, once the borehole valve was closed,
he believed that the pipe would begin filling up and backing up
967

with water, and no more air or smoke would enter the mine through
the borehole because the valve was closed.
Inspector Davis testified that after speakinq with

Mr. Brunati about the shaft fire, he went to the borehole

location; met with Mr . Horn and two other foreman. Mr. Davis
tested the borehole area for methane and found none. He also
took air bottle samples, and the results did not reflect any.
oxygen problems . Mr . Davis confirmed that the borehole valve was
closed and he observed no smoke or water coming out of the valve.
He also noted in his notes that the borehole valves were closed
and that the pipe was filling up with water at the rate of four
qallons per minute, and that he had received this information
from mine field engineer Neff who was with him at the borehole
location. Mr . Neff calculated that the borehole pipe started
filling up at 9:30 a.m., and would rise to a level of 120 feet
within an hour. Mr. Davis confirmed that a foreman was assigned
to monitor the borehole location for carbon monoxide every
fifteen minutes. Mr. Davis reported the results of his
inspection of the borehole area to Inspector Brunati, who
was still on the surface, and since his inspection duties had
ended, Mr . Davis left the mine. He assumed that Mr. Brunati
communicated his findings to Mr . Biesinger, and neither
Mr. Dav is or Mr. Brunati issued any orders requiring the
withdrawal of miners from the underground mine areas.
Inspector Biesinger confirmed that he first learned about
the connection between the shaft and the borehole pipe at
10:45 a.m. when Mr. Brunati called him to inform him of
Mr. Davis' findings . Mr. Biesinger confirmed that he was made
aware of the fact that mine officials had smelled smoke in the
mine, but shut the borehole pipe valve. Mr. Biesinger assumed
that the smoke was detected before the valve was closed at
9:28 a.m., and he also assumed that the reported 2,178 cubic feet
of air per minute ventilating the entry below the bottom of the
shaft in the B seam was in compliance with the mine ventilation
plan. Mr. Biesinger also knew that Mr. Davis tested the
underground borehole area and detected no methane and that
someone was stationed at the borehole location with a co
detector.
Mr. Biesinger confi rmed that after his 10:45 a.m.
discussion with Mr. Brunati, he telephoned MSHA subdistrict
aanager Kuzar, and they discussed the issuance of the imminent
danger order to remove the miners from the underground mine
areas. Although Mr. Biesinger testified that he did not
apecif ically know that miners were in the underground B and c
aeam areas, he assumed they were because they normally are, and
he had inspectors at the mine conducting inspections that day.
He confirmed that he and Mr. Xuzar "jointly" decided to issue the
imminent danger order at approximately 11:30 a.m.
968

Mr. Kuzar confirmed that he was in telephone contact with
Mr. Biesinger after he learned about the shaft fire, and that he
had five or six telephone discussions with him in the course of
the mornjng. Mr. Kuzar testified that the decision to issue the
imminent danger order was made during his second conversation
with Mr. Biesinger. Mr. Kuzar confirmed that he was informed
about the connection of the borehole pipe into the underground
B seam, but he did not know about the valve at the end of the
borehole, nor was he informed of the fact that Inspector Davis
was in the B seam in close proximity to the borehole pipe, and he
only learned about Mr o Davis' presence underground while
preparing for the hearing in this case .
Inspector Colton testified that sometime between
12:00 and 12 : 30 p.m., Mr. Biesinger instructed him to go to the
main mine portal and issue the imminent danger order withdrawing
miners from the underground B and c seams. It took Mr. Colton
20 to 30 minutes to reach the mine office by automobile, and
after arriving at the office and meeting with management,
Mr. Colton orally instructed them to evacuate the miners from
the underground mine areas, and he reduced the order to writing
at 1:15 p.m. · The management officials with whom he met voiced
their objections to the order , and Mr. Colton telephoned
Mr. Biesinger and informed him of this. Mr. Kuzar confirmed that
mine operations manager Stickler called him and expressed his
belief and concern that the order was not justified. After
Mr. Stickler informed him that he could not guarantee that
everyone working underground would not be affected by any
explosion, Mr. Kuzar advised Mr. Stickler that the miners
needed to be evacuated and that the mine would be back in
production as soon as possible.
At approximately 4:00 p.m., members of the mine rescue
team went down the shaft and reported that the fire appeared to
be extinguished. The company safety director, Inspector
Biesinger, a state inspector, and the construction foreman
subsequently went down the shaft and confirmed that the fire was
extinguished. At approximately 4:30 p.m., Mr. Biesinger orally
advised mine management that the imminent danger order was
lifted, and it was terminated in writing at 4:30 p.m. The order
was in effect for three hours and twenty-five minutes.
In this case, an imminent danger order was in effect at
the shaft and the shaft surface area, and all construction
workers had been removed from those areas while efforts to bring
the fire under control continued. Bethenergy does not dispute
the issuance of this imminent order. Its dispute is with the
iaminent danger order withdrawing miners from the underground B
and C coal seams. The critical issue is whether the six-inch
borehole pipe connection between the shaft and the underground

969

mine areas prov ided an imminently ready path for the propagation
and acceleration of a shaft explosion into the underground mine
areas if that event were to occur.
While it may be true that the presence of ignition
•ources and methane in the shaft presented a potentially
hazardous situation at the shaft location at the time of the
fire, the existence of those conditions , standing alone, is
insuffici ent to support an imminent danger order withdrawing
ainers from the underground mine workings in question. In short,
the fact that certain f ire conditions created circumstances i n
wh ich subsequent hazards may occur does not make the conditi ons
i mminently dangerous .
MSHA has the burden of proving more than a speculative
possibility that the underground miners were endangered or at
r isk because of t he borehole connection between the shaft and
underground mine workings . In order to support the order , it
must be established that any shaft explosion resulting from the
ongoing fire could reasonably be expected to cause death or
serious harmi. to the underground miners if normal operations were
permitted to '-proceed in the underground mine areas befor e the
threat of any impending explosion could be eliminated. It must
also be shown that the hazard presented had a reasonable
potential for coming to fruition within a short period of time .
MSHA's assertion that t he methane and carbon monoxide
readings taken by Inspector McElhoes at the mine shaft during the
fire indicated that s i gnificant amounts of methane were present
is not supported by the record . Although the record shows that a
fire was ongoing , I nspector Biesinger testified that the methane,
oxygen, and carbon monoxide readings taken by Mr . Elhoes and the
state inspector reflected one-tenth of one percent methane (0 . 1),
which he acknowledged was "not too much"; 126 parts per million
of carbon monoxide, which he also acknowledged "is not a great
amount", but .is an indicator that "some kind of combustion is
t aking place 0• ; and less than 20.5 percent oxygen, which he
characterized as "less than the usual 21 percent," but also an
i ndicator that there is combustion in the shaft (Tr. 99-100) .
Further , Mr . Biesinger confirmed "a trend downward in the co,,.
at the time water was being dumped down the shaft, and that Elim
the imminent danger decision was made, the co had declined from a
high of 126 parts per million to 19 parts per million (Tr. 156).
MSHA cites the testimony of Inspector Biesinger at
transcript page 159, in support of its assertion that even if
there were water in the borehole pipe, an explosion could have
been propelled through it (posthearing brief, .pg . 12) • . However,
Mr . Biesinger was asked if the products of any combustion would
90 through the water in the borehole if there were no explosion,
and he replied "It's not likely, no" (Tr. 159). The next
question asked was whether the main force of an explosion would
970

go YR the shaft, and he responded "one would expect it to do
that, yes" (Tr. 159). Mr. Biesinger confirmed that in the Leh.man
abaft explosion incident the explosion went down the shaft, and
when it came up against the water it went back up tbe shaft
(Tr. 157, 158).
Bethenerqy's witnesses Horn and DuBreucq, both
experienced professional mining engineers, and field engineer
Neff, who along with Mr. Horn developed the specifications for
the construction of the shaft, were of the opinion that if a
shaft explosion had occurred, the force of the explosion would go
up the shaft and to the surface, as it did in the two past shaft
explosion incidents, rather than up the shaft, through the water
rings, and down a six inch borehole pipe into the underground B
and c mine seam areas. They testified credibly in some detail as
to their reasons for their opinions, and I credit their opinions
in this regard over those of the inspector's speculative
conclusions with respect to the reasonable likelihood that an
explosion in the shaft would propagate down the borehole, through
the water in the borehole pipe, blow out the valve and enter the
underground ~ine areas in question after passing through 200 feet
of rock strata.
Although I recognize the fact that faced with the
emergency situation presented by the fire, any judgment call by
Inspector Biesinger with respect to the existence of an imminent
danger in the underground workings, when balanced against the
safety of miners, must be made quickly and without delay.
However, when the order is subsequently challenged, any
imminently dangerous situation which an inspector believed may
have existed at the time the order is issued must be proven by a
preponderance of the available credible and probative evidence.
On the facts and evidence adduced in this case, I cannot conclude
that MSHA has proven that it was reasonably likely that a shaft
explosion would travel up the shaft, through the shaft water
rings and down the borehole pipe through the accumulated water,
blowing out the valve on its way, and then entering the
underground mine workings after passing through 200 feet of
rock strata.
Although Mr. Biesinger expressed his concern about
noxious gases and fumes being transmitted through the borehole
pipe into the B seam working areas, he stated that his concern
was based on Mr. Brunati's information that someone had smelled
•moke in the mine, and Mr. Biesinger's assumption that there was
•an open connection and we had the transfer of air or gas between
the shaft and the underground portion of the mine" (Tr. 133-134).
Mr. Biesinger indicated that this was an additional factor that
influenced his decision to issue an imminent danger order.
However, the credible and unrebutted evidence adduced by
Bethenergy establishes that the borehole valve had been closed
for nearly four hours before the order was issued and that an
971

"open connection" no longer existed. Further, according to
Mr. Neff's unrebutted calculations, the water in ·the pipe had
risen 120 feet by 10:30 A.M., MSHA Inspector Davis had inspected
the underground borehole area and detected no smoke or methane,
Bethenergy's eng,ineers and foremen had also inspected the area
and detected no smoke or methane after the valve was closed, the
area was continuously being monitored for carbon monoxide, and
there is no credible evidence of any ready sources of ignition.
Although Inspector Kuzar alluded to "the vast gobs in
that mine ~ 1 (Tr . 180, 183) , he d i d not know how far these areas
were from the borehole l ocation in the B seam (Tr. 184) .
~"'urther, his testimony that there have been "problems with
methane i n the gobs" , was based on the amount of methane drainage
holes that are required "at times" to remove a panel (Tr. 183),
and there i s no evidence of the nature of the problem, other than
the fact that the mine is a gassy mine, and probably the gassiest
mine in the state. However, the fact that the mine is gassy, and
that drainage holes are required to bleed off the methane do not
.iR.§..2 facto , establish a hazardous condition. I take particular
note of the fact that MSHA stipulated that there were no adverse
venti lati on conditions where miners were working underground,
(Tr. 182-18 3) •
MSHA presented no evidence of any existing hazardous or
adverse mining conditions in the underground B and c seams in
question . Indeed, MSHA Inspector Davis, who along with Inspector
Brunati were at the mine conducting inspections, was aware of the
underground conditions, went to the location of the borehole and
confirmed that the valve had been closed, detected no smoke or
methane at the borehole location, and confirmed that someone was
assigned to the borehole location to monitor the co . After
reporting his findings to Mr . Brunati , who was on the surface
Inspector Davis left the mine, and there is no evidence that he
detected any hazards or issued any citations or orders .
The parties stipulated that at 10:15 A.M., an air· sample
t aken by Inspector Davis at the B seam borehole location
reflected .010 percent methane, and . 006 percent carbon monoxide,
and that these amounts were insignificant. The parties also
stipulated that with the borehole valve closed there would be a
limited amount of air movement through the borehole and it would
not travel to any working section. Mr . Biesinger testified that
any air passing by the borehole would not go to any working
aection and it would go to the returns .
With regard to MSHA's argument that Mr . Kuzar could not
take the chance of leaving the miners in the mine in light of
aine manager Stickler ' s statement that he could not guarantee the
safety of miners "given the ongoing shaft fire," I take note of
the fact that Mr. Kuzar testified that he asked Mr. Stickler if
he could guarantee the safety of the miners if there was an
972

explosion in the shaft (Tr. 191), rather than a~ as arqued by
MSHA at page 14 of its brief. I find a distinction ·between the
hazardous nature of a shaft fire that is being addressed and an
explosion, and I would venture a quess that Mr. Stickler may have
answered differently if the question were asked in the context of
a shaft fire, particularly since the miners in the shaft were
withdrawn by the issuance of the section 103{k) and 107(a) orders
affecting the shaft and the fire was being brought under control
and efforts were being made to extinquish it.
The principal concern expressed by Mr . Kuzar and
Mr. Biesinger at the time they decided that an imminent danger
order should issue focused on the connection between the shaft
and the mine by means of the six inch borehole pipe. However,
Mr. Biesinger knew that the borehole valve had been closed at
9:28 a.m., and there is no evidence to dispel his assumption that
the smoke that was reported around the borehole was detected
before the valve was closed. Mr. Kuzar testified that he and
Mr. Biesinger did not discuss the valve, and Mr. Kuzar considered
the valve to be irrelevant and he had an unsupported opinion that
it would not st~p any shaft explosion forces coming through the
pipe.
·
In view of the foregoing, and based on all of the
evidence adduced in this case, I cannot conclude that the
conditions in the underground B and C mine seam working areas,
particularly at the borehole location, posed a hazard to miners.
Further, I conclude and find that MSHA has not established the
existence of any hazardous conditions that presented an imminent
danger of a shaft explosion, or propagation of an explosion from
the shaft through the borehole, and into the underground
workings, before the shaft fire was brought under control and
extinguished. I agree with Bethenergy's assertion that little
consideration was given to the existing mine conditions in the B
and C seams at the time the decision to issue the imminent danger
order was made.
Although I recognize the fact that an inspector has
considerable discretion in determining whether an imminent danger
exists, there must nonetheless be some reasonable degree of
imminence to support such a finding. In the instant case, while
Mr. Biesinger was informed of the borehole connection at
10:45 a.m., the order withdrawing miners from the mine was not
issued until 1:15 p.m., two and one-half hours later. This
delayed reaction to the perceived imminent danger undercuts
MSHA's arqument that an explosion was imminent and that the
inspectors needed to act quickly to remove the miners from the
aine.
I believe that Inspectors Kuzar and Biesinger acted out
of an abundance of caution in the interest of safety, and rightly
so, and I have no reason to believe that they were less than
973

well-intentioned when they decided to issue the imminent danger
order evacuating the miners from the underground areas of the
aine. However, I nonetheless conclude and find that the evidence
adduced in this case does not support their unsupported
•peculative conclusion that a shaft explosion was near at hand,
iapending, or ready to take place. Nor does it support a
conclusion that if such an explosion were to occur, it would have
•pread into the underground workings of the 8 and C mine seams.
Under the circumstances, the contested imminent danger order ·
IS VACATED.
ORDER
On the basis of the foregoing findings and conclusions,
Bethenergy's contest is GRANTED, and the contested section 107{a)
Imminent Danger Order No. 3708620, issued on March 11, 1993,
IS VACATED.

~~((,,~
Administrative Law Judge
Distribution:
R. Henry Moore, Esq., Stephen Smith, Esq., Buchanan Ingersoll,

P.C., USX Tower, 57th Floor, 600 Grant Street, Pittsburgh,
PA 15219 (Certified Mail)
Mark v. Swirsky, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
/ml

9 74

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

APR 2 8 199.4,
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

. CIVIL PENALTY PROCEEDINGS
... Docket No. VA 93-59-M
.

. A.C. No. 44-00044-05534

Docket No. VA 93-80-M
A.C. No. 44-00044-05537

W.S. FREY COMPANY, INC.,
Respondent
:

Docket No. VA 93-89-M
A.C. No . 44-00044-05538
Clearbrook Mine and Mill

DECISION
Appearances :.

Javier I. Romanach, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Petitioner;
Thomas Moore Lawson, Esq., Hazel and Thomas,
P.C., Winchester, Virginia, for Respondent.

Before:

Judge Barbour
STATEMENT OF THE PROCEEDINGS

These cases are before me upon petitions for assessment
of civil penalties filed by the Secretary of Labor (Secretary)
pursuant to Sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977 (Mine Act), 30 u.s.c. §§ 815 and 820. The
petitions allege six violations of mandatory safety standards
for surface metal and non-metal mines found in 30 C.F.R. Part 56.
In addition, the Secretary asserts that five of the alleged
violations constituted ·significant and substantial (S&S) contributions to mine safety hazards, and that three were caused
by w.s. Frey Company, Inc.'s (Frey) unwarrantable failure to
comply with the cited standards.
The single violation alleged in Docket No. VA 93-89-M
resulted from the Mine Safety and Health Administration's
(MSHA) investigation of a fatal accident that occurred at
Frey's Clearbrook Mine and Mill on December 11, 1992. The
five violations alleged in Docket Nos. VA 93-59-M and VA 93-80-M
resulted from the agency's investigation of a fatal accident
that occurred at the Clearbrook facility on December 13, 1992.
The cases were consolidated and a hearing on the merits
was conducted in Winchester, Virginia.
9 75

STIPUI.ATIONS
The parties chose to try first Docket Nos. VA 93-59-M
and VA 93-80-M, the cases pertaining to the December 13, 1992
accident. With respect to these two cases, the parties
stipulated as follows:
·
1 . The Administrative Law Judge has jurisdiction to
hear and decide the case.
2. MSHA Inspector Elwood S. Frederick was acting in
his official capacity when he issued Citation No. 4083442.
3o
Citation No . 4083442 was _properly issued to
[Frey's] agent .

4. Abatement of the conditions cited in Citation
No. 4083442 was timely.
5. Frederick was acting in his official capacity as a
federal coal mine inspector when he issued [Order/Citation]
No. 4082539 on December 14, 1992.
6. Frederick was acting in his official capacity as a
federal mine inspector on December 21, 1992 when he issued
Citation No. 4083441, [Order No.] 4082540 and [Order No.]
4083444.
7.
Order/Citation No. 4082539, [Citation No.] 4083441,
[Order No.] 4082540 and [Order No.] 4083444 were properly
served to Frey's agent.
8. Abatements of the conditions cited in Order/Citation
No. 4082539, [Citation No.] 4083441, [Order No.] 4082540 and
[Order No.] 4083444 were timely.
9o
The Clearbrook Mine and Mill is a surface lime and
crushed stone operation owned and operated by [Frey).

Tr. 11-12 (nonsubstantive editorial changes made).
The parties further agreed that the witnesses be
sequestered.

976

DOCKET NOS . VA 93-59-M AND VA 93-80-M
THE ACCIDENT OF DECEMBER 13. 1992
THE SECRETARY'S WITHESSES

Elwood s. Frederick
Frederick testified that he took part in MSHA's
investigation of the fatal accident that occurred at Frey's
Clearbrook Mine and Mill on December 13, 1992 . As a member
of the investigation team, Frederick visited the facility on
December 14. Frederick was accompanied by his supervisor,
Charles McNeal (Tr. 21-22). Frederick and McNeal arrived at
the mine between 6 : 15 a . m. and 6:30 a.m. (Tr. 122).
The accident had occurred the previous night in the coal
storage area of the facility. There, contractor-supplied coal
used to fuel coal-fired kiln was piled under a open-sided,
square "shed" (Tr . 41-42). The shed consisted of four pillars
or beams supporting a roof . The roof was slightly more than
31 feet above the storage area floor. The shed's purpose was
to keep rain ·and snow off of the coal.
Once the coal was dumped in the storage area it was
pushed into a floor level hole (surge hole) by a front-end
loader. It then fell through the surge hole into a hopper
below the shed floor (Tr . 42- 43) . · At the bottom ot the hopper
was a surge vibrator (syntron feeder) that shook the coal onto
a conveyor belt through the feeder opening {the dog house
opening). The belt transported the coal to a storage tank in
the kiln building. The coal fired the kiln {Tr . 44, 48).
The coal occasionally stuck {or hung-up) at the surge
hole, especially in the winter when the coal had lumps of
snow in it. The fact that the coal was hung-up was evidenced
by a lack of coal coming through the feeder and dumping onto
the belt {Tr. 50.) When this happened, a Frey employee would
approach the surge hole and use a 9-1/2 foot long· metal bar to
poke or probe at the coal {Tr . 48, SO). If the hole could not
be cleared with the bar, the front-end loader would try to dig
the hole free {Tr. SO). If the hang-up was at the feeder, rather
then at the surge hole, the employee would use a similar bar
or pole to pry the coal free from the feeder end of the hopper
(Tr. 51-52).

The victim was Denny Bernaldes, the kiln burner helper
on the second shift. He was found with the upper half of his
body (shoulders and above) stuck in the syntron feeder and the
lower half of his body on the conveyor belt. one of Bernaldes'
leqs was off the conveyor belt {Tr. 70). There was coal around

977
·<

the upper half of his body. The coal had to be removed before
the body could be extracted from the feeder (Tr. 70). Bernaldes,
who was dead when he was found, died of asphyxiation.
Although Frederick stated he "he had no facts to document
[it]" (Tr . 97), Frederick believed that Bernaldes fell through
the surge hole and into the hopper while trying to do free a
hang-up (Tr. 49 , l2l } o The bar used to free surge hole hang-ups
was found about 5 feet from the surge hole sticking straight up
in the coal (Tr. 184-185). In Frederick's opinion Bernaldes died
when he became stuck in the dog house opening while trying to
get out of the hopper ~ The dog house opening measured 14 inches
wide by 24 inches high (Tr . 117).
Frederick did not see Bernaldes' body. It was removed
prior to Frederick's arrival at the facility by the county
rescue squad . Frederick's infonnation came from interviews
with Frey personnel. Frederick did not interview the rescue
squad members who freed the body (Tr. 128-130). Nor did
Frederick take into consideration Bernaldes' size when he
concluded how the victim had died (Tr. 132) .
In response to suggestions that Bernaldes climbed onto
the belt and stuck his head and shoulders into the feeder
rather then fell through the surge hole, Frederick stated that
Halbard Meyers, the second shift kiln operator, told him when
Meyers found the body, Meyers had to shut off the feeder and
the conveyor belt (Tr. 116, 128). To get onto the belt and
crawl into the feeder with the belt running would have been
practically impossible (Tr. 116). Frederick understood the
belt ran at a speed of 400 feet per minute (Tr. i17).
When Frederick arrived at the coal storage area the
temperature was cold. Some of the coal had chunks of snow
on it (Tr. 57). The shed itself was roped -off with police
tape because of the accident (Tr. 158). He could not see
where the hole was because it was covered with coal. However,
someone from the company turned on the feeder and this cleaned
the coal out of the surge hole and the hole became visible
(Tr. 41-42) .
Frederick and a Virginia stat~ mine inspector, who was
at the facility in connection with the state's investigation
of Bernaldes' death, measured the surge hole opening and found
it to be 24 inches long and 39 inches wide (Tr. 28-30, 124).
Using a diagram of the site that he had prepared, Frederick
testified that it was 7 feet from the surge hole to the syntron
feeder at the bottom of the hopper (P. Exh. 11; Tr. 32). (In
other words, the hopper was 7 feet tall.) The belt onto which
the coal dumped was 24 inches wide (Tr. 34). There was no

97 8

barrier or device to warn a person where the surge hole was
(Tr. 53). Also, there was no grisly over the hole (Tr. 174).
In short, there was nothing to prevent a person from falling in .
Because of what he observed, Frederick issued Frey ·an
imminent danger withdrawal order and associated citation (Order/
Citation No. 4082539) for a violation of section 56.16002(a)(l) .
This mandatory safety standard requires that where loose ,
unconsolidated materials are stored or transferred at surge
piles, the piles be equipped with mechanical devices or other
means of handling the materials so that during normal operations
persons are not required to work where they are exposed to
entrapment by caving or sliding materials. Frederick explained,
"There was an unguarded opening at ground level . And, the coal
has a tendency to hang-up and some indi vidual must come there and
poke this. Therefore , where anybody can walk directly in and
fall into this hole, you can work right over to the hole if you
didn't know where it is at" (Tr . 60-61). Moreover, because the
coal did not necessarily flow straight down into the hopper, but
also could funnel down in a cone shape along its angle of repose,
the size of the area of coal falling through the chute could
increase as the material fell and a person could be inadvertently
drawn into the hole (Tr. 62, 139).
Frederick stated if someone had to work where he or she was
exposed to entrapment by caving or sliding material, the cited
standard required a mechanical means of handing the material.
Here , where a person trying to free a hang-up might not know
where the hol e was and could step ·o n a bridge of coal temporarily
covering the hole, or could be drawn into the hole as the coal
funneled down, such a mechanical means was lacking (Tr . 64-65) .
To abate the alleged violation, Frey freed the area of coal and
welded a plate over the hole. Frey then installed a new hopper
that was only loaded with a front-end loader (Tr. 65-66).
Frederick considered the alleged violation to be S&S
because the coal could suddenly fall and easily draw into the
hopper a person trying to free a hang-up (Tr. 71) . Such an
accident was reasonably likely to happen because there was no
protection around the surge hole and no warning of its presence
(Tr. 71) . Once in the hopper there was no way out and no one
could hear the person if he or she yelled for help (Tr. ~' 75) .
The coal storage area was positioned so that a person trying to
free a hang-up would be out of sight of other employees (Tr. 75).
Frederick believed death would be the likely result (Tr. 73-74) .
With regard to Frey's negligence, Frederick indicated
that it was "high" (Tr. 77: Exh . P-1) . He stated that Frey
management personnel knew the hole was there yet took no
precautions, such as having a safety belt or line at the job
site or having a sign indicating the presence of the hole.

979

More important, during the investigation Frederick discovered
other employees had fallen into the hopper prior to the accident. These persons included Foreman Raymond Murray's brother,
who was not injured because there were other people present to
help get him out (Tr. 77 , 152-153) . However, Frederick was
not aware if any person had brought the conditions at the
aurge hole to management's attention (Tr. 165) .
Frederick further testified that as a result of the
investigation he issued other citations and orders to Frey.
Pursuant to section 104(d)(l) of the Act, 30 u.s .c . § 814(d)(l),
he issued Citation No . 4083441, alleging a violation of
section 56 . 150050 The mandatory safety standard requires
safety belts and lines to be worn when there is a danger of
falling . Frederick beli eved Bernaldes did not wear a safety
belt and line when he was working around the surge hole (Tr. 79) .
Frederick testified he also cited Frey because "they
had no safety belts and lines at the job site" (Tr. 80).
To put it another way, "We wrote [the violations] because
O• • there was no safety belt and line there where there was
a hazard of falling into that bin" (Tr . 171). Frederick
explained , "Where employees work where there is a hazard
of falling into ••• surge bins or hoppers • • • they must be
provided with a safety belt and they must wear a safety
belt and either have it tied off or have a second person in
attendance" (Tr. 80-81).
An employee was in danger of
falling while attempting to free a hang-up. An employee
could be standing directly along side the hole, not know it,
and "go down with the material" (Tr. 81). Snow made the
coal slippery and there was no place to tie off a safety
line, except 30 or 40 feet away on one of the columns of the
shed (Tr . 83-84). In Frederick's opinion, the safety belts
and lines should have been kept at the coal shed (Tr. 167-168).
He stated, "They could ••• store them in a box like most
companies do" (Tr. 168).
Frederick maintained that employees interviewed during
the investigation indicated they did not wear safety belts or
lines when working in the area, although he could not recall
which employees made the statement (Tr. 85).
Frederick considered the alleged violation to be S&S
because of the hazard of falling into the hopper and being
buried by the coal. He also believed that if business at the
facility continued as usual, it was highly likely that such a
fatal accident would occur (Tr. 86-87). Indeed, Frederick
concluded that the alleged violation contributed to the victim's
death. Frederick stated that had Bernaldes been wearing a safety
belt and line, "he would have been able to get out" · of the hopper
-l~· 88).

980

Frederick believed management's negligence was "high"
and that the alleged violation was due to Frey's unwarrantable
failure to comply with section 56.15005 (Tr. 88). He testified
that during the investigation it was revealed that management
was advised several times about having safety belts at the job
site but had done nothing about it (Tr. 88-89). Nonetheless,
management had assigned the victim to go to the coal storage
area, an area where the location of the surge hole could not be
defined and where no safety belts or lines were present (Tr. 91).
Frederick next testified about Order No. 4082540, issued
pursuant to Section 104(d)(l) of the Act, alleging a violation
of section 56 . 18020 , a mandatory standard forbidding an employee
to work alone wher e hazardous conditions exist that could
endanger his or her safety , unless . the person could communicate
with others , could be heard or could be seen (Tr. 91 : Exh . P-3) .
He issued the order because the victim was working alone in
the coal shed in the vicinity of the surge hole (Tr. 94). To
Frederick, the very nature of the job of freeing a hang-up at
night meant that the person doing it had to work alone. Further,
the person could be assigned to free a hang-up several times
during the shift and no method of communication was provided for
the person. . If he or she fell into the hopper there was no way
to be heard or seen, and thus no way of getting help to get out
(Tr. 96-99). For example , employees sent to do the job were not
provided with a radio (Tr . 98) .
Raymond Murray, the foreman, should have realized the
hazard and had the condition corrected- (Tr. 99-102, 180) .
However , Frederick had no information that Murray actually
knew about the problem (Tr. 180).
Frederick testified he also issued Order No. 4083444 ,
another order of withdrawal pursuant to section 104(d)(1) of
the Act . The order charged a violation of 30 C.F.R. § 56.17001,
a mandatory safety standard requiring an operator to furnish
lighting sufficient to provide safe working conditions in and on
all surface structures and work areas . According to Frederick,
there was only one overhead light in the coal shed, 31 feet
above the shed floor. Frederick asked Meyers, the kiln burner
operator, if Meyers could see anyone at the surge hple when he
was standing at the open doors of the kiln building and looking
at the coal shed, which was approximately 110 feet away from the
kiln building. Frederick testified that Meyers told him that he
could not see anyone, that it was too dark (Tr. 102-103, 181).
In Frederick's opinion, at night, if the area had sufficient
light, persons in the shed could have been seen (Tr. 192-193).
The overhead light in the shed was not centered exactly
over the surge hole, but was a little off center, perhaps by 2
or 3 feet (Tr. 105, 151). The light was covered with . a plastic
lens, and the lens was covered with coal dust (Tr . ____10·-t. ~ 182).

981

Frederick agreed, however, that the front-end loader was
equipped with lights and ' that when the loader was in the shed,
it would provide illumination (Tr. 187-188). According to
Frederick, the problem was that the front-end loader was not
continuously in the shed (Tr . 189). Frederick further agreed
that he had not been to the facility after dark and that the
inspection party did not test the lighting to gauge its intensity {Tr. 122-123). The alleged violation was abated when
Frey installed additional lights in the coal shed (Tr. 193).
Frederick found the alleged violation of section 56. 17001
to be S&S (Tr. 106). He believed insufficient illumination
contributed to Bernaldes' death. The accident occurred at night ,
and coal does not reflect light. The lack of adequate light
made it easy for Bernaldes to step where the hole was and fall
into the hopper (Tr. 108).
·
He also found the alleged violation was the result of
Frey's "high negligence" and unwarrantable failure because
"the foreman should [have] been checking his people and
[have] seen that th[ere] was not enough lighting in th[e]
area" (Tr. 111). Frederick was unsure how long the condition
had existed (Tr. 112).
Finally, Frederick testified that he issued Citation
No. 4083442, alleging that Frey had violated 30 C.F.R.
Section 56.18009, a mandatory standard requiring a competent
person designated by the operator to be in attendance at the
mine when persons are working in order to take charge in case
of an emergency. Frederick stated he determined a foreman was
not present at the time of the accident. Frederick testified
that when the foreman was asked who was "in charge of the
operation when he was not present," the foreman responded
Meyers was in charge (Tr. 114). When asked about this, Meyers
stated, "If I'm in charge, nobody ever told me" (Tr . 114).
In Frederick's opinion, Meyers had done "a very good job"
when be discovered Bernaldes' body; in that he immediately
ran and called 911 to alert the rescue squad (Tr. 114).
Dwayne Johnson
Dwayne Johnson was plant superintendent at the Clearbrook
Mine and Mill from November 4, 1991, until the end of January
1993 {Tr. 197-198). As such, he was in charge of coal handling
and kiln production and in overall charge of the area where the
accident occurred {Tr. 199).
Johnson described how coal was transported · to the kiln
and explained that the conveyor feeding coal to the kiln storage
bin was located under the coal shed dumpling area. The syntron

982

feeder drew the coal from the surge pile into the hopper and
then fed it onto the conveyor belt {Tr. 199).
Johnson maintained that coal "constantly" was bung-up at
the surge hole. While large pieces of coal tended to wedge
against· one another, even the finer coal, if wet, would stick
together and clog the hole (Tr. 200-202).
Approximately 250 to 300 tons of coal were usually piled
around the surge hole. As the feeder drew the coal down into
the hopper, the loader would "take it from the sides and
continue to feed the draw hole" (Tr. 201). If coal was piled
over the hole, the angle of the draw could be such that the
hole at the top of the pile could move off center by as much
as 6 or 7 feet (Tr. 241-242). However, the draw area usually
formed in the shape of a symmetrical inverted cone {Tr. 261).
When coal became hung up at the hole, an employee would
take a metal bar and would poke at it in order to loosen it.
The bar distanced the person trying to free the hang-up from
the surge hole (Tr. 271). However, when trying to pry loose a
hang-up, an employee might well be within the draw and not know
it (Tr. 258, 309). Employees were not formally trained in how
to free hang-ups; they taught one another (Tr. 258).
Johnson maintained that hang-ups usually occurred at the
surge hole (Tr. 235). If coal hung up at the feeder, an employee
would try to free the hang-up by going into the conveyor tunnel
and by using a bar to poke at the hang-up through a small
hole in the feeder or through the dog house opening (Tr. 221,
233-234).
Johnson testified he had discussed with management
officials the practice of freeing hang-ups with the bar and
that "it was the opinion that the pipe was sufficient ••• that
[the employee assigned to free a hang-up] could use the pipe
and stay away from the hole well enough to make the coal flow
without actually being on the pile" {Tr. 204, 265). According
to Johnson, he and Vincent Lord, Frey's plant superintendent,
decided that the bar was long enough to allow the employee to
prevent himself or herself from being drawn into the hopper in
that the employee could wedge the bar across the hole or could
push away from the bole with it (Tr. 204-205).
Johnson believed that during the day an employee could see
the location of the surge hole, but that at night an employee
would have difficulty seeing it. If the hole was covered and
the employee walked onto the coal pile, the employee easily
could place himself over the draw point.

983

Johnson maintained that after Bernaldes' death he was
told by other employees that they had fallen into the surge
hole or had seen others fall in. For example, Calvin Light,
a truck operator, told Johnson that he had fallen into the hole
but was able to extricate himself by using the bar (Tr. 227).
In addition, Gary Dillow, a kiln burn helper, told Johnson
that he was standing on the pile when it gave way and he slid
into the hole • ..I.tL..
Johnson stated that the company rejected the idea of
putting a grizzle over the surge hole because it would have
increased problems with the flow of the coal (Tr. 206, 253).
Further, in the company's opinion, it was not economically
feasible to otherwise alter the coal feeder system (Tr. 206-207) .
Turning to the conditions on Sunday, December 13, 1992,
Johnson stated that because of the weather, the company's coal
supplier had di fficulty delivering coal. Therefore, the coal
inventory was "down to zero" (Tr. 207) . After an urgent request
from Johnson, the supplier trucked-in three or four loads of
coal on the afternoon of December 13. The coal was spread in
different piles i n the coal storage shed. Two of the piles,
one of which \was over the feeder, were approximately 4 or 5 feet
high and 10 or 12 feet wide (Tr. 272) . It was cold and the
moisture in the piles was frozen (Tr. 209, 267). According to
Johnson, "you had to stay with [the coal] and constantly work
on it to get it to go in [the hopper]" (Tr. 276).
Johnson was asked about the use of safety belts in the
coal storage area. He stated that although the company had
a policy that safety belts would be worn at bins and hoppers,
employees did not wear them when freeing hang-ups (Tr . 277) .
A single safety belt was located in the kiln burner building
{Tr o 210 , 280) . In Johnson's opinion, management officials
knew of the work habits of Frey's employees in the coal storage
area in that they frequently traveled past the area to go to the
kiln and in so doing could see how the employees were working
(Tr. 210-211) . Johnson admitted, ~owever, that while he was
with Frey, he never indicated in his preshift inspection reports
that more safety belts were needed (Tr. 283).
If a hang-up occurred at the surge hole it was . the job of
the assistant kiln burner to go to the hole and free it while
the kiln burner stayed in the kiln burner building to run the
kiln. on Sundays the only way an assistant kiln burner would
have had another person on the scene to help free a hang-up
would have been to go the shop and get the front-end loader
operator to come to the coal shed to assist (Tr. 212). There
was no system for an employee working to free a hang-up to

984

communicate with the rest of the plant. There had been some
discussions about supervisors using two-way radios to communicate. It was never suggested that radios be provided for
rank-and-file-employees, and, in any event, radios never were
purchased for either supervisors or employees (Tr. 214-215,
303-304).
Johnson also was asked about the lighting in the shed and
be stated that there was a single overhead light (Tr. 215-216).
He was of the opinion that it would have been "very difficult" to
see the surge hole at night (Tr . 216). The black coal absorbed
light (Tr. 218) . If the surge hole "crusted over," a person
working at the hole would not be able to see any warning cracks
in the crust . The cracks indicated the crust was going to give
way . (.1£.., Tr. 219). Johnson agreed that he had probably never
indicated on his pre-shift inspection reports that the lighting
at the coal storage shed was insufficient (Tr . 283-284). Johnson
also agreed that Bernaldes had a flashlight, but Bernaldes did
not take it to the shed . He further stated that Bernaldes never
complained the lighting was inadequate (Tr. 285).
Johnson\ described Bernaldes' position as assistant to
Meyers . During the course of the shift, Bernaldes had a series
of jobs requiring him to be here and there around the kiln
building, the coal shed and the feeder (Tr. 246-247). Meyers
had no supervisory authority. It was company policy on weekends to have two supervisors report early in the morning. If
everything was in order, they left later in the day with the
understanding they could be called at home and would come back
if there were any problems (Tr. 298, 316). Ray Murray, the
foreman on duty on Sunday, December 13, had been at the plant
and had gone home (Tr. 298-299). Johnson had also been at the
plant earlier that day and had gone home. At approximately
11:30 p.m., Johnson was called by Meyers who told Johnson that
he, Meyers, had found Bernaldes and that he thought Bernaldes
was dead. Johnson stated he was at the plant within 15 minutes.
Murray too was called and came to the plant .
Johnson testified he arrived at the plant immediately after
the emergency medical technicians. He followed the technicians
into the coal tunnel (Tr. 220). According to Johnson, Bernaldes
was lying on the conveyor belt with his head and arms in the
feeder. His body was lying on its left side and his right leg
was over the top of the skirt board that ran along the side of
and about 6 inches above the conveyor belt. Bernaldes' left
leg was on the belt (Tr. 221, 285, 677, 288). Johnson did not
believe Bernaldes entered the feeder by climbing on the belt
(Tr. 680). In Johnson's opinion, because of the speed of the
conveyor belt, it was "virtually impossible" for a person to get
inside the dog house opening while the . belt was running (Tr. 225,
286). If a person put his or her foot on the belt, it ~ould
throw the person off or, if a person did somehp~ qet on the

985

belt, the vibration from the feeder would throw the person off.
There were no band rails to help climb onto the belt (Tr. 225226). If the belt was not moving, a person could crawl up on i t
and into the feeder, but the person would need a flashlight to
see inside. Bernaldes did not have a flashlight when his body
was found. The person would need a bar to poke at the hang-up
and no such bar was found immediately adjacent to Bernaldes
(Tr. 286-287).
Johnson believed that around 6:30 p.m. on the evening of
December 13 , Bernaldes had the front-end loader operator fill
the hopper to the top of the surge hole and level with the
ground . He speculated that around 9:30 p . m. , Bernaldes started
the belt and the feeder to move the coal from the hopper to the
kiln storage bins. Approximately 10 to 15 minutes later he left
the kiln building and returned to the coal storage shed. By then
a crust of coal had frozen over the surge hole. Bernaldes
stepped on the crust and the coal gave way. Bernaldes fell into
the hopper . The bar, which Bernaldes was not carrying, was of
no assistance to him. The only way for Bernaldes to get out
was through the dog house opening. In trying to wiggle out,
Bernaldes' shoulders stuck in the opening. Later, the front-end
loader operator came to the shed and dumped coal in the hopper
and Bernaldes suffocated .
To remove his body the rescue· squad had to use a hose to
wash the coal from around his head and shoulders. Bernaldes'
body was then slid out of the feeder (Tr. 230-232).
Halbard Meyers
Halbard Meyers was the kiln operator on the second shift .
Second shift hours were from 3:30 p.m. to 11:30 p.m. Bernaldes
was Meyers's assistant. As such, Bernaldes' duties were to make
certain the belt was running, to free coal hang-ups, to maintain
the pumps, and to oil and grease specified equipment.
In describing Bernaldes duties regarding coal hang-ups,
Meyers stated that the first thing Bernaldes did was to enter
the coal tunnel and use a bar to try to dislodge a hang-up by
poking inside the syntron feeder (Tr. 321-322, 351)'. If coal
did not begin to flow, Bernaldes went to the coal shed and used
the bar located there to poke through the surge hole. If that
did not free the hang-up, he called the maintenance shop and
the front-end loader operator came and dug out the surge hole
(Tr. 321-322, 341).
Meyers stated that all employees were instructed to follow
that procedure (Tr. 323). The training was given by other
employees and did not involve the use of safety belts or lines
(Tr. 330).

9 86

Meyers stated that he had freed hang-ups frequently, but
never alone and at night during the winter (Tr. 324, 341). He
also stated that he once had been caught in the coal as it fell
into the hopper up to his right knee when he was on top of a
"pretty good size coal pile" (Tr. 346). He used the bar to push
himself out (Tr. 347). Another employee told Meyers that he had
fallen into the surge hole but had pulled himself out (~, 353354). Meyers testified that he told Charlie Morrison, Prey's
aafety director, that Frey employees were having problems qetting
the coal to feed into the hole, and that he, Meyers, had raised
the problem during the latter part of 1988 at a company safety
meeting. Meyers stated he discussed the matter because he was
afraid an employee would fall in the hole (Tr . 348-350) .
Turning to the events of December 13, Meyers testified that
he last saw Bernaldes alive at 9:30 p.m. At that time, Bernaldes
was getting ready to go to the coal tunnel and "start picking the
belt" {Tr. 326). Meyers explained that this meant to pick large
pieces of rock off of · the belt (Tr 1 344).
Meyers stated that between that time and when he found
Bernaldes' b~dy, the conveyor belt was running {Tr 355). The
control panel in the kiln building was the place where the belt
could be turned on and off and Meyers frequently was in and out
of the control room that night {Tr. 488-489). Meyers never saw
Bernaldes during these visits {Tr. 492). Moreover, Meyers could
see the indicator light during the relevant two hour period and
it indicated the belt was running (Tr. 489-490).
Around 11:30 p.m. Meyers started to take his lunch box to
the car, stopping first at the coal tunnel to look for Bernaldes.
He did not see him so he went to his car and got his flashlight
to look for Bernaldes around the plant. He walked around the
coal storage area (Tr. 327). The flashlight was not that bright
but he could "vaguely" see, although he could not see the surge
hole (Tr. 328). Meyers then went into the conveyor tunnel to
look for Bernaldes. He found Bernaldes lying on the conveyor
belt. The belt and syntron feeder were running (Tr. 327).
Bernaldes' was lying on his left side at an angle. His
right foot was on the belt and his left foot was on the railing
alongside the belt. Part of his body, from the shoulders up, was
in the feeder (Tr. 328-329). Meyers turned the feeder off and
ran to the kiln building where he told some third shift employees
who had arrived to call "911." A short time later Meyers called
"911" to make certain the first call had been made (Tr. 338).
Meyers then called Johnson and Murray. ~

987

FREY'S WITHESSES
Charles Morrison
Charles Morrison, Frey's director of personnel and safety,
was the_company's first witness. Morrison stated that he had
been employed by Frey for six years, and for the last five he
had been the personnel and safety director (Tr. 368). In preparing for the hearing, Morrison measured the dog house opening
of the syntron feeder. The opening was 19 inches high and
13 inches wide (Tr. 368-369) . He also indicated that because
of coal buildup on the bottom of the feeder, usually the height
of the opening was reduced by 3 or 4 inches (Tr . 369) . Morrison
identified a drawing of the opening (Resp. Exh. 17).
Morrison also identified a scale drawing of the feeder
unit (Resp . Exh. 18). The unit included a box into which the
coal fell. The dog house opening was at the front of the box.
The back of the box was 16 inches high and the box got
progressively larger toward the opening (Tr. 370). From the
back wall to the opening the box measured 30 inches . ~
Regarding the coal shed, Morrison testified the light
was installed directly above the surge hole in order to give
direction to miners if they needed to find the hole (Tr. 371).
Morrison described the light as a soo watt, dusk-to-dawn light
(Tr . 626). After the accident Morrison took a reading with a
light meter in the shed. He measured 4.8 foot candles of light.
Morrison testified that a General Electric company handbook
recommended 5 foot candles for a congested parking lot and
2-1/2 foot candles for a rarely traveled path. The handbook
did not cover mining operations (Tr . 656).
Morrison stated that at night from the bay doors of the
kiln building he could see people in the coal shed. He knew
because he had stood in the opened doorway and looked at the
coal shed the night of the accident . Although he could not
identify who the people were, he could definitely see them
(Tr. 634).
Safety belts or lines were not located in the coal shed.
Morrison implied that state mine inspectors required Frey to
keep such equipment "centrally located so people know where
they are • • • and can go get them and • • . use them when they
need them" (Tr. 629).
Morrison did not recall Meyers raising at the company
safety meetings the problem of people slipping into the surge
hole. Morrison testified that he reviewed the minutes of the
meetings and found no reference to the topic. He observed
that Meyers attended only two such meetings (Tr. 639-641).

988

However, after the accident one employee, Calvin Light, told
Morrison that he had started to slide into the surge hole
(Tr. 659).
Morrison identified photographs of the coal shed area
taken the day after the accident. The photographs represented the conditions that existed at the time of the accident,
including the position of the bar stuck in the coal pile (Resp.
Exhs. 1-3; Tr. 374). A photograph of the kiln burner building
taken from the shed showed the bay doors that could be opened
to give a view of the shed from the kiln burner building (Resp.
Exh. 4; Tr. 376).
Morrison further identified photographs of the conveyor
belt. He testified that the skirt board on the left hand side
of the belt (if one faced the dog house opening) was taken off
to assist in the removal of Bernaldes' body. However, the
board on the right hand side was clearly shown in two of the
photographs (Resp. Exhs. 7 and 9). According to Morrison, in
addition to keeping coal on the belt, the skirt boards could
serve as hand rails (Tr. 380-381).
Morrisqn described how, at Frey's direction, another
employee, who was somewhat taller than Bernaldes, was able
to climb onto the belt frame and place his head into the dog
house opening without touching the belt (Tr. 382-383, 637-638;
Resp. Exhs. 11 and 12). Morrison believed this is what Bernaldes
had done. He stated, "I can't see any way .•• Bernaldes dropped
7 feet into that very narrow, 19 [inch] by 30 [inch], box and
came out ••• of that dog house opening, which is 13 by 19 inches,
and ••• did so without any coal in his pockets, in his socks,
anywhere on his stone-washed jeans" (Tr. 386).
Morrison explained that after the accident and after
things had "calmed down a little bit," company personnel
started interviewing employees and taking notes (Tr. 665).
The investigation extended from just after the accident to
approximately 2 months prior to the hearing, when company
representatives completed their last interviews with rescue
squad members (Tr. 667).
Morrison identified a copy of the accident report he
completed on December 16, 1992, and sub-mitted to MSHA (Gov.
Exh. 12). In the report Morrison had stated that Bernaldes
fell through the surge hole {Tr. 644). Morrison testified that
he completed the report three days after the accident and prior
to speaking with the rescue squad personnel (Tr. 389, 645).
Approximately six weeks after the accident, the father of a
member of the rescue squad told Morrison the rescue squad members
could not believe the reports in the newspapers concerning how
the accident occurred. One week later Morrison spoke to rescue
squad personnel (Tr. 671-672). Once he was advised of the

989

cleanliness of the body, the lack of abrasions on the lower body,
and Bernaldes' size, he came to the conclusion Bernaldes tried to
climb into the feeder from the bottom and that it was physically
impossible for him to have fallen from above and come out the dog
house opening (Tr. 646-647).
Morrison speculated that the feeder might have clogged
and Bernaldes might have climbed up on the belt, stuck his
head and arms into the dog house opening and tried to grab
something to unclog it when the coal caved in on him. Morrison
stated that, although it made no sense to do such a thing, it
also made no sense for Bernaldes to be walking around on top
without the pry bar (Tr . 674) .
Will Baker
Will Baker, an employee of the Frederick Country Sheriff's
Office, was Frey's next witness. Baker stated that he went to
the mine following the discovery of Bernaldes body and that he
was the second or third person from the Sheriff's Department to
arrive . Baker spent most of his time at the mine talking to
Meyers. Baker saw Bernaldes' body before it was removed from
the feeder, but was candid to state that at that time, aside from
Bernaldes feet, he did not get a good look at it (Tr . 393-394) .
Nonetheless , Baker was of the opinion the body was bigger than
the dog house opening (Tr. 395). Baker also saw the body after
it was removed from the feeder and he described it as being very
black above the upper chest (Tr. 396) .
Ralph Freeman Robinson III
Ralph Robinson was a member of the rescue squad. Without
objection, Robinson was ruled qualified to testify as an expert
in confined space rescue (Tr. 410-411). He stated that upon
arriving in the tunnel area, he observed Bernaldes' body sticking
out of the dog house opening from mid-sternum down (Tr. 412).
Bernaldes' right arm was over his head and he was lying on his
left side with his left arm underneath him (Tr. 413, 419). Most
of his body was resting on a metal shaker plate, not on the belt
(Tr . 442). His right leg was to one side of the conveyor belt
wrapped around a pole or piece of angle iron. Robinson believed
Bernaldes had used his right leg as a brace to keep himself in
position (Tr. 413). In his opinion, this indicated that
Bernaldes was trying to go into the dog house opening, not come
out (Tr. 414).
Robinson stated that the Bernaldes was "clean" from the
waist down, even though it was very dirty inside the feeder
(Tr. 415). Bernaldes clothes were in tact, not ripped or torn,
and his body did not appear to be in anyway deformed by the
accident (Tr. 421). The tape around his ankles (used to keep

990

coal dust out of his socks and shoes) was not smudged with coal
dust (Tr. 422).
Reading from the autopsy report that indicated Bernaldes
weighed 270 pounds and was six feet tall, Robinson stated that
from viewing the body and the dog house opening he did not
believe a person of Bernaldes' size could have come through
the opening (Tr. 426-428). Bernaldes' hip size was 38 inches.
Robinson believed Bernaldes would have suffered broken bones if
he had fit through the 19 inch by 13 inch opening, and Bernaldes
had no broken bones (Tr. 431, 445; Resp. Exh. 20). Robinson
believed Bernaldes could have gotten only his feet and upper
thighs through the opening before he became stuck . In Robinson's
opinion, there was no way he could have twisted his body to get
the rest of himself through (Tr. 432-433). The dog house opening
simply was not big enough (Tr. 433).
Brenda Sue Gray
Brenda Gray, a rescue squad paramedic, was part of
the team called to the mine. Her description of the position
of Bernal des.' body was essentially the same as that of Robinson.
In her opinion, the fact that Bernaldes' right leg was wrapped
around a metal post along the side of the belt indicated he was
trying to keep himself in that position, not trying to wiggle
out of the feeder (Tr. 452).
Gray stated she raised the victim's shirt and tried to
detect a femoral pulse, but could not. She noticed that
Bernaldes' body had very little coal dust on it and that the
exposed portions of his body were relatively clean. She stated
this on the report she filed (Tr. 454, 455). She believed if
Bernaldes had fallen through the surge hole he would have
been covered with coal dust (Tr. 458). When she heard he had
fallen though the surge hole, she disagreed. She thought he
had climbed up on the frame of the belt, stabilized himself with
his right leg, and poked his head into the opening (Tr. 458).
It was, she stated, a "tight fit" (Tr. 454). Given the size of
Bernaldes' hips, she did not believe his waist would have fit
through the dog house opening (Tr. 459, 467).
Chester Locke
Chester Locke, the captain of the rescue squad, was in
charge of the squad's activities. Unlike Robinson, Locke
recalled Bernaldes' hips and legs as resting on the belt
itself (Tr. 484). Because of Bernaldes' size and the relative
cleanliness of his clothing outside the feeder, Locke also
felt Bernaldes was trying to enter the dog house opening from
the bottom (Tr. 475-476). If his hips had made it through the
opening, Locke .believed his shoulders and head would have come
through as well (Tr. 483).

991

Locke believed that the conveyor belt would have had
to have been off before Bernaldes climbed onto it (Tr. 480}.
If the belt had been running Bernaldes would have been
fiqhting the belt as it ran opposite the way he wanted to qo.
Bernaldes' clothing would have been torn or he might have
suffered abrasions, neither of which occurred (Tr. 481).
Tbomas E. Robinson. Sr .
Thomas Robinson was the kiln foreman. Robinson
was not at the mine on the day of the accident (Tr . 530).
Robinson explained that "everyone" had complained about
coal hang-ups, especially when the coal was wet (Tr. 536).
He agreed he had probably "hollered" at Johnson about it. l!L_
He too explained how coal hang-ups were cleared. The miner
assigned to the job started at the· bottom and tried to open
the feeder by poking the bar through the hole in the feeder
(Tr. 506) . If that procedure was unsuccessful, the person
would get the front-end loader operator to open the surge hole
(Tr. 506-507). If the loader was not successful, the miner
took the bar and used it to loosen the coal (Tr. 508-509).
The bar was., always on the surface, usually leaning against a
pier of the ·coal shed, although sometimes it was stuck into a
coal pile (Tr. 510). The purpose of the 9-1/2 foot bar was to
keep the miner away from the hole (Tr. 512).
Robinson was
asked how far away from the hole a miner would stand in order
to be safe, and he responded, "I would stand far enough away
where I would know I wasn't going to slide in there. Sometimes
its's 2 or 3 feet, 4 feet, whatever you think is safe" (Tr. 528).
Robinson stated that he never had fallen into the surge hole,
nor heard of anyone who had done so (Tr. 516).
According to Robinson, a miner would stand back away from
the hole and poke at the hole (Tr. 511). The miner "bore" out
the hole (Tr. 531). The miner would know where the hole was
located because it was directly under the light (Tr. 518).
When the syntron feeder was drawing from a large coal pile, the
funnel created by the draw could b~ 9 feet across (Tr. 522-523,
533).
Vincent Lord
Vincent Lord , Frey's plant superintendent, was not
present at Clearbrook Mine and Mill the night of the accident.
He arrived just before midnight (Tr. 580-581). He testified
that, although Bernaldes held the job of alternate burner, on
the night he was killed he was acting as an oiler. Bis duties
as an oiler required him to ensure the pumps were pumping, to
watch the conveyor belts and to make certain coal fed into
the bin. Bernaldes' duties on the niqht of the accident

992

also included acting as Meyers' assistant (Tr. 539-540). If
Bernaldes did not perform his duties correctly, it was Meyers'
responsibility to report Bernaldes to the foreman.
Lord described the "experiment" conducted to determine if
a person could climb onto the belt and place his head in the
feeder without touching the belt. (The belt and syntron feeder
were disconnected for the test (Tr. 595.)) Although Lord was
not present when the test was conducted, he understood the man
was able to stay free of the belt by crawling on the belt frame
and skirts (Tr . 560 ; Resp . Exhs. 11 , 12).
The Clearbrook facility is the subject of two complete
inspections a year by MSHA, during which MSHA inspectors are
present day and night {Tr . 568-569) . Prior to the accident the
conditions at the surge pile for which Frey was cited were never
alleged to constitute violations of federal or state safety
regulations (Tr. 569-571) .
Like other of Frey's witnesses, Lord testified that company
procedures in freeing hang-ups required an employee to first try
to free the coal from the syntron feeder. "[I]f the bottom is
not open you are not going to open the top" (Tr. 589). The next
thing tried was to free it with the loader at the surge hole and,
if that failed, to use the bar to open up the hole (Tr. 590).
When using the bar, employees were instructed to stand back from
the hole 4 to 6 feet (Tr. 591). Lord acknowledged it would not
be safe to stand at the edge of the hole (Tr. 599).
Lord stated that prior to December 13, 1992, he never
had been advised that anyone had slipped into the surge hole
(Tr. 552). He did not recall discussing with Johnson the safety
of employees using the bar to open the hole or employees using
the bar to get free of the hole if they slipped in (Tr. 610).
Subsequent to the accident, he heard that from two to four people
had slipped in at one time or another (Tr 548).
Lord discussed the lighting of the coal shed . He noted
that front-end loaders used in the shed were each equipped with
four lights (Tr . 576) . Bernaldes had a flashlight, although he
had not used it the night of the accident (Tr. 579). In Lord's
opinion, if the bay doors of the kiln burner building were
opened, a person looking from the doors to the coal shed could
see a man walking in the shed (Tr. 582). The distance from the
kiln burner building to the shed was approximately 110 feet
(Tr. 583). The shed could be seen also from a doorway to the
deck of the kiln burner building, a door the kiln burner had
to use when checking if the kiln bin was being filled with
coal from the belt (Tr . 585-586).

993

With regard to oral communication at the facility, Lord
stated the acquisition of radios had been discussed, but only
in terms of the foremen communicating with one another (Tr. 579).
He agreed that if a miner yelled for help from the coal shed,
he could not be heard in the kiln burner building (Tr. 593).
on weekends, a shift foreman who worked the day shift was
in charge in case of an emergency. After the afternoon shift,
the kiln burner (Meyers at the time of the accident) was in
charge and he was responsible for telephoning the foreman or
plant superintendent (Tr. 594).
Lord was asked to give his opinion regarding how Bernaldes
died. He stated that at first he believed Bernaldes had fallen
through the surge hole. "But after further seeing all the
evidence • .• and looking at the configuration of the opening and
the size of the opening and the size of his body and the position
that his body was found in," Lord tound it "very, very difficult
to see that he could have gone down through the top" (Tr. 613).
On the other hand, Lord could not think of a reason why Bernaldes
would have tried to crawl into the dog house opening (Tr. 614615).

MOTION TO STRIKE

At the close of the testimony, counsel for Frey renewed
a motion to strike that he had made when the Secretary rested
after presenting his case-in-chief. Counsel noted the Secretary
bore the burden of proof and argued the evidence offered by the
Secretary was insufficient to establish any of the alleged
violations (Tr. 358-365). I reserved a ruling (Tr. 365). I
herein deny the motion.
counsel renewed the motion after all of the evidence had
been submitted (Tr. 692-693). Counsel argued the only conclu- .
sion to draw from the testimony was that Bernaldes, for whatever
reason, entered the feeder from the bottom and did not fall
into the hopper from above. In addition, the evidence did not
establish that a hazardous condition existed in the coal shed,
and, without a hazardous condition· to endanger workers violations
could not be found (Tr. 696-697).
The Commission's rules provide that on a procedural
question not regulated by the Act, the Commission's rules,
or the Administrative Procedure Act, the judge be quided by
the Federal Rules of Civil Procedure. 29 C.F.R. §2700.l(b).
Heither the Act, the Commission's Rules, the Administrative
Procedure Act, or the Federal Rules apply to the specific
situation at hand. Nevertheless, the essence of Frey's motion
is not unknown at law. Frey is contending that even if all
evidence presented by the Secretary is regarded as true, the
government has failed to establish its case and judgment must

994

be entered for Frey. As set forth more fully below, while I
do not find favorably for the Secretary regarding all of his
allegations, I cannot find that his evidence, if unrefuted,
is so wholly deficient as to fail to establish three of the
violations alleged. Moreover, only an analysis of the evidence of both parties allows me to reach the conclusion that
the Secretary has not prevailed with regard to the other
two alleged violations.
DISCUSSION FINDINGS AND CONCLUSIONS
POCKET NO. VA 93-80-M
Order/Citation No.
4082539

Date
12/14/92

30 C.F.R.

§

56.~6002(a)(l)

Proposed Penalty
$3,500

The order/citation, issued pursuant to sections 107(a)
and 104(a} of the Act, 30 u.s.c. §§ 817(a), 814{a), states:
A fatal accident occurred at this operation
when an employee fell into a coal chute to the
syntron \feeder. There was an unguarded opening on
top of this chute. The coal has a tendency to bridge
over or hang up in this chute. Normal operating
procedures require an employee to work near this
opening when hang ups occur. A method shall be
provided to eliminate the need for employees to
free hang ups in this unguarded opening.
Exh. P-1.
follows:

The order/citation was modified subsequently as

This modification is to change the wording from
coal chute to surg[e] hole and add a paragraph.
The paragraph should read as: The surg[e) hole
to the syntron feeder was not equipped with a mechanical device or other means to·handle material so that
persons are not required to work where they are
exposed to entrapment by caving or sliding materials.

IsL.. 2.
Section 56.16002(a}(l) states:
(a) Bins, hoppers, silos, tanks and surge piles,
where loose unconsolidated materials are stored,
handled or transferred shall be -( l) Equipped with mechanical devices or other
effective means of handling materials so that during

995

normal operations persons are not required to enter
or work where they are exposed to entrapment by the
cavinq or slinqinq of materials[.]
THE YIOLATION
The violation alleged by the Secretary is set forth in the
modification of the order\citation. It states that the surge
hole for the surge pile was not equipped with a mechanical device
or other means to handle the coal so that employees were not
required to work where they were exposed to entrapment by caving
or sliding coal.
The testimony of all of the witnesses confirms the coal
piled in the coal storage shed fed.through the surge hole into
the hopper and syntron feeder and hence to the conveyor belt
that carried it to the kiln plant. The coal was piled in the
shed in a loose, unconsolidated fashion -- a surge pile. Indeed,
it had to be so piled in order to fall through the surge hole.
Being a storage and transportation system containing both a
surge pile and a hopper, the facility clearly came within
subsection (a) of section 56.16002.
The principal question is whether persons were required to
enter or work in an area during normal operations where they
were exposed to entrapment by caving or sliding coal. If they
were, the standard required the facility to be equipped with a
mechanical device or another effective means of handling coal.
I conclude that the testimony overwhelmingly establishes that
persons were required to free hang-ups at night in the coal shed
during normal operations at which time they were exposed to the
danger of entrapment.
I accept Frederick's testimony that coal piled in the
storage shed had a tendency to hang-up (Tr. 60). The bar used
~y miners to free the hang-ups in th~ storage shed testified to
this fact as effectively as the witnesses. I further accept the
testimony of Johnson that the hang~ups were more frequent when
the coal was wet and when the temperature fell below freezing,
as it did the night of the accident (Tr. 200-202, 276, 536). I
further find that when such hang-ups occurred, the surge hole
could "crust over,"and I conclude the repeated nature of the
hang-ups made them normal occurrences at the facility.
I also accept as a fact of physics that the coal did not
always fall straight down into the hopper. (Loose, unconsolidated materials do not always fall in that way.) Rather, and
as explained by Frederick and Johnson, like any such piled
material, the coal was drawn down in a funnel pattern, or, as
Johnson put it, in the shape of a "inverted cone" (Tr. 60, 261).
I further find that the cone was not always symmetrical. This
physical attribute of the draw was what Johnson described when

996

he stated that the coal could be "feeding in at an angle to the
(surge] hole" depending, among other things, upon the consistency
of the coal (Tr. 241). In addition, I accept as a fact that the
radius of the funnel varied depending upon the size of the coal
pile.
As most completely described by Frederick and Johnson, but
as agreed by all of the witnesses, I find that during normal
operations it was a practice at the Clearbrook Mine and Mill for
employees to stand at the coal pile when freeing a hang-up and
poke at the coal with the 9 foot bar. I also conclude, given
the inconsistency with which the coal could fall or draw, that
the employees working to free hang-ups could not always determine
where the coal would draw. Consequently, miners working in the
coal shed to free hang-ups were in fact in danger of being pulled
into the hopper by the falling coal. I base this conclusion upon
the logical assumption that if a miner could not be certain
exactly how the coal pile would draw, there would inevitably come
a time when he or she would guess wrong and stand on coal that
was a part of the draw.

This conclusion is reenforced by the testimony regarding
training and practice in freeing hang-ups . I note Lord testified
that employees were instructed to stand 4 to 6 feet away from
the hole (Tr. 591, 599) . However, _Johnson testified employees
were not trained by Frey in how to free hang-ups, that employees
taught one another. Frey offered no evidence to establish it
formally trained its employees in this task, and I accept
Johnson's statement, with which Meyers agreed . I conclude,
therefore, that employees were not formally instructed to stand a
specific distance from the surge hole. Thomas Robinson, who had
not heard Lord's testimony, stated the distance to stand away
from the surge hole and be safe varied. He described a safe
distance as "sometimes two or three feet, four feet, wherever you
think is safe" (Tr. 528). Given the nature of the task at hand,
I believe Robinson accurately described the practice. Therefore,
rather than being an act of certainty, freeing a hang-up required
individuals to judge that about which they could not be certain,
i.e., the distance to stand to be outside the draw of falling
coal .
That employees' judgements were not always accurate was
confirmed by the testimony of Frederick, Johnson, Meyers,
Morrison and Lord, all of whom stated they had been told
post-accident that other miners had been caught by the sliding
coal and had been dragged into the hopper or toward the hopper

(Tr. 77, 228, 277, 353-354, 548, 552, 659).
I further agree with Johnson that employees were at
times in danger of falling into the hopper when the coal was
not drawing. I credit his testimony that in the winter · the
coal could crust over and, therefore, that the surge hole

9 97

could have a thin "bridge" of coal over it. While I believe
the testimony established that the single light in the coal
shed for all practical purposes was directly over the surge
hole, it strikes me as entirely credible that an employee
intent on determining why coal was not flowing, easily could
forget the light was over the hole, step on the coal bridge
and fall into the hopper. Further, I believe Johnson was right
in maintaining this was likely to happen at ~ight when light
from th~ single lamp, approximately 31 feet above the surge
hole, was absorbed by the coal on the floor so that telltale
cracks in the coal bridge were not easily noticed (Tr. 216-219).
I conclude, therefore, that the cited conditions in the coal
shed violated section 56.16002(a)(l).

S&S and GRAVITY
The Commission has held that a violation is "S&S" if, based
on the particular facts surrounding the violation, there exists a
"reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division. National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
Further, the Commission has offered guidance upon the interpretation of its National Gypsum definition by explaining four factors
the Secretary must prove to establish that a violation is S&S.
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984} the
Commission stated:
[T]o establish that a violation of a mandatory
standard is significant and substantial under
National Gypsum the Secretary ••• must prove: (1) the
violation of a mandatory safety standard; (2) the
discrete safety hazard contributed top by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question
will be of a reasonably serious nature.
I have concluded a violation of 30 C.F.R. § 56.16002(a}{l}
existed. I also find the evidence establishes a discrete safety
hazard in that the lack of a mechanical device or other means for
handling the coal when it became hung-up subjected miners trying
to free the hang-ups to the danger of being caught in the surging
coal as it broke free and of being pulled into the hopper below
or of falling through the crusted coal. Either the initial fall
or coal falling on top of the miner once he or she was in the
hopper was reasonably likely to result in serious bruises or
broken bones. Moreover, if the accident occurred when no other
miner was around and help was not immediately available, death
from suffocation was reasonably likely, especially since the
front-end loader operator might well arrive in the coal shed

998

after the miner had fallen and push or dump coal unknowingly on
the miner.
The remaining question is whether the eviden·c e establishes
that there was a reasonable likelihood the hazard contributed
to would result in an event in which there was an injury. The
relevant time frame for determining whether a reasonable likelihood of injury existed includes both the time that the violative
condition existed prior to the citation and the time that it
would have existed if normal mining operations had continued.
U.S. Steel Mining Co. Inc., 6 FMSHRC 1573, 1574 (July 1984),
Halfway. Inc., 8 FMSHRC s, 12 (January 1986).
I am persuaded that the lack of a mechanical device or
other means to prevent miners from.being drawn into the surge
hole meant that sooner or later, in the context of continued
mining operations , such an accident was . bound to happen. In
this regard, I find especially compelling the testimony of the
various witnesses, both those called by the secretary and those
called by Frey, who learned post-accident about other miners who
had been caught in the draw. Moreover, as I have noted, I am
persuaded al~o that the fact that miners were required to free
hang-ups at night and in freezing weather, meant that it was only
a matter of time before a miner would inadvertently step on the
crusted over surge hole and fall into the hopper. An injury or
fatality was reasonably likely once either of these things
happened. Therefore, I conclude that the violation was properly
found to be S&S.
In determining the gravity of the violation, I must
consider both the potential hazard to the safety of the miners
and the likelihood of the hazard occurring. As I have noted,
the violation subjected miners to serious injury or death.
Given the fact that miners were continually sent to the coal
shed to free hang-ups, it was highly likely that an accident
of this kind would happen. Therefore, I conclude the violation
was extremely serious.
The Secretary tried to establish that Bernaldes' death was
the result of such an accident. In my opinion, the Secretary did
not succeed. A review of the testimony offered by the Secretary
illustrates its deficiencies . Frederick testified that he had "no
facts to document" his belief Bernaldes fell through the surge
hole and into the hopper (Tr. 97, 121) . Frederick neither saw
the body nor interviewed those members of the rescue squad who
did (Tr. 128-130, 132). Further, Frederick agreed that if, as he
believed, Bernaldes had fallen into the hopper and gotten stuck
at his shoulders in the dog house opening, it was "very possible"
Bernaldes would have had coal dust on and inside his clothing,
and the .testimony of the rescue squad members establishes
Bernaldes' clothing and body were relatively clean below the
point where he became stuck (Tr. 138).
999

When Meyers last saw Bernaldes alive, Bernaldes was
beaded toward the tunnel to pick coal from the belt (Tr. 326).
Meyers did not know what Bernaldes did after that. While
neither Frederick or Johnson believed Bernaldes would have
climbed up on the belt frame and stuck his head into the feeder,
Johnson agreed that it was possible for a person to get up on
the frame of the conveyer without touching the belt (Tr. 685).
I cannot inf er from this testimony that Bernaldes fell
into the hopper from above, especially considering the unre- .
futed testimony of Frey's witnesses that Bernaldes clothing
and body were relatively free of coal dust below the point
where he had become stuck and that his body was free of broken
bones, and largely free of scrapes and bruises. It is true that
Morrison originally believed Bernaldes had fallen from above and,
indeed, reported such to MSHA, but he changed his mind -- as well
he might -- after discussing the situation with rescue squad
personnel (Gov. Exh. 12, Tr. 644). They uniformly believed that
a person of Bernaldes' size would not have gotten all of the way
through the feeder, and, given Bernaldes weight and hip size,
their belief is convincing.
I, therefore, find that the relatively clean state of
Bernaldes' clothing and of his body below the shoulders,
Bernaldes' lack of broken bones and significant abrasions,
as well as Bernaldes' size and the size of the feeder box and
dog house opening -- together with the deficiencies in the
Secretary's evidence -- preclude a conclusion that Bernaldes
fell though the surge hole.
·
I am also persuaded that it made absolutely no sense for
Bernaldes to climb onto the frame of the conveyor and stick
his head and upper body into the feeder. Lord, the plant superintendent, could think of no reason why Bernaldes would have
done so, and neither can I (Tr . 614-615). It seems extremely
unlikely he was trying to look up into the dark feeder. He did
not have a flashlight (Tr. 285-286). Moreover, if the coal were
hung-up in lower part of the hopper or feeder, freeing it would
not have required Bernaldes to assume the position in which his
body was found. He could have poked at the hang-up with the bar
kept near the feeder for that purpose. Obviously, . the lack of a
reason for Bernaldes to put himself in such an extremely
dangerous position strongly militates against finding he did.
In the end, the evidence does not permit a finding regarding
how Bernaldes met his death. Nevertheless, even without such a
finding, the extreme seriousness of the violation has been
established. If Bernaldes did not fall through the surqe hole,
I am convinced, as I have already found, that sooner or later a
Frey employee would have done so. In other words, the lack of
a mechanical device or other means to handle material so that

1000

persons were not exposed to possible entrapment from caving or
sliding coal created conditions in which serious injury or death
was virtually inevitable given time.
NEGLIGENCE

I again note the testimony of Johnson, Morrison and Lord
that following Bernaldes' death they became aware of employees
who had been caught in the surging coal. In and of itself,
this bespeaks a failure of communication at the facility and,
in my opinion, is indicative of a fundamental failure of Frey
management personnel to meet the standard of care required of
them. Also indicative of Frey's fundamental failure is Frey's
practice of having employees instruct one another on how to
free hang-ups. In my opinion, the lack of operator-initiated
training typifies Frey's noncholance to the hazard involved .
The testimony establishes that the task of freeing hang-ups
was inherently dangerous. As Lord's testimony indicates, Frey
management personnel realized it was hazardous for employees to
stand too close to the surge hole (Tr. 599). Management also
should have realized, given the nature of task and the manner in
which coal fel~, that inevitably an employee would be too near
the surge hole ·or would walk over the crusted surge hole,
especially since hang-ups were not unusual occurrences. (Thomas
Robinson credibly testified that "everyone" complained about them
{Tr. 536).)
The surge hole had been in existence since 1967 and Frey
had never been cited for violations relating to conditions at
the surge pile (Tr . 552, 569-571). If these facts stood alone,
they might indicate conditions at the surge pile were not such
as to require a heightened standard of care on Frey's part.
However, they do not stand alone. Rather, the overwhelming
impression gathered from the record is that the employees
assigned to free hang-ups at the surge pile were sent to do a
very dangerous job and that Frey was simply lucky a serious
injury or fatality had not occurred prior to Bernaldes' death.
Thus, Frey's failure to provide a mechanical device or other
means to handle the coal so that its employees were not exposed
to entrapment or caving from the sliding material represented a
major and fundamental departure from the care the circumstances
required. Frey was highly negligent.
ORDER NO.
4082540

DATE

30 C.F.R.
56.18020

12/21/92

§

PROPOSED PENALTY
$6,000

The order states in part:
A fatal accident occurred at this operation
on December 13, 1992 when an employee fell into a
surg[e] hole in the coal storage shed. The shed

1001

was poorly illuminated and the floor was slippery
around the top of the open hole. The victim was
working alone and was required to free hangups in
the surg[e] hole. He could not be seen or heard and
there was no method provided for him to communicate
with others. The accident occurred on the afternoon
shift between 9:50 P.M. and 10:45 P.M. The victim
was not found until 11:30 P.M •••• (This is an
unwarrantable failure violation.)
Exh. P-J.

Section 56.18020 states:

No employee shall be assigned, or allowed, or
be required to perform work alone in any area where
hazardous conditions exist that would endanger his
safety unless he can communicate with others, can be
heard, or can be seen.
THE YIOI..ATION

To establish a violation of section 56.18020, the Secretary
must prove that an employee was required to work in an area where
hazardous conditions existed that endangered his or her safety.
I have found that the conditions under which Frey's employees
(including Bernaldes) worked when they were sent to the surge
pile area to free hang-ups were extremely hazardous. Indeed,
they constituted an accident waiting to happen. While I have
also found that the Secretary has not proven how Bernaldes met
his death, the testimony of Bernaldes' immediate superior,
Meyers, makes clear that one of Bernaldes' duties was to ensure
there were no hang-ups and this required him to visit the coal
shed and to free those that occurred (Tr. 321-322, 341). The
testimony also makes clear that hang-ups were not infrequent.
Therefore, I find the nature of Bernaldes' job required him to
encounter the conditions alleged in the order.
The Secretary also must prove the employee was required
to work alone. In this regard, the testimony establishes that
when Bernaldes went to the shed on the weekend, he usually
was working by himself. No one else was in the shed. If the
front-end loader operator was needed, Bernaldes would call for
the front-end loader operator to come to the shed {Tr. 212).
In this regard, I accept Meyers' specific description of how
Bernaldes freed hang-ups {Tr. 321-322, 341). Bernaldes was
working under Meyers' direction.
The Secretary must also establish that when Bernaldes
worked to free a hang-up Bernaldes' contact with others was
insufficient to satisfy the protective purposes of the standard.
Cotter Corp., 8 FMSHRC 1135, · 1137 (August 1986) (interpreting
then identical mandatory safety standard 30 C.F.R. § 57.18-25
{1984)). The Commission has stated that to be sufficient under

1002

the standard, the communication or contact must be "of a regular
and dependable nature commensurate with the risk presented in
a particular situation" and that "as the hazard increases, the
required level of communication or· contact increases." Old Ben
Coal co., 4 FMSHRC 1800, 1803 (October 1982} (interpreting
identical mandatory standard 30 C.F.R. § 77.1700).
Here, I accept Frederick's opinion that if Bernaldes had
fallen into the hopper, no person would have heard his cries
for help (Tr. 98). The kiln building where Meyers was working
was too far away for oral communication and the front-end loader
operator was not always present in the shed. While I credit the
testimony of Morrison that at night a person in the coal shed
could be seen from the bay doors of the kiln building and of
Lord that a person could be seen from the kiln building's deck
(Tr. 634, 585-586), I note that there was no testimony regarding
how frequently the bay doors were opened and no testimony
regarding how frequently anyone would have looked from the doors
when they were opened. Although Lord testified the kiln burner
went onto the deck, the kiln burner's purpose, according to Lord,
was to determine whether the kiln bin was filled with coal, not
to check for the presence of a worker in the coal shed (Tr. 585586) . Any s~ghtings of Bernaldes .by the kiln burner would have
been inadvertent to the task at hand. Even if Bernaldes had been
seen, the person seeing him might not have been certain it was
Bernaldes . As Morrison testified, people could be seen from the
open doors, but "you might not be able to identify exactly who
they were" (Tr. 634).
Finally, no testimony was offered from which to find that
a miner was assigned to check regularly on the status of a person freeing hang-ups and certainly no testimony was offered that
anyone checked specifically on Bernaldes.
I conclude, therefore, that when Bernaldes went to the
coal shed to free hang-ups there was no oral communication
with him and visual communication was inadvertent and imprecise.
I have found that freeing hang-ups at night in the coal shed
was extremely hazardous. I further find that when Bernaldes
was required to do the job, the level of communication or
contact between Bernaldes and any other miners was inadvertent
and haphazard. In other words, there was no communication or
contact of a regular or dependable nature commensurate with the
risk involved. Consequently, I find that the violation occurred.
S&S and GRAVITY
As Frederick noted, if Bernaldes was caught in the surging
coal and was pulled into the hopper, or otherwise fell into the
bopper, there was no way to let another person know where he was
(Tr. 99, 593). The danger was that injuries associated with the

1003

fall would be aggravated for lack of timely rescue or, worse yet,
would be compounded by the loader operator dumping or pushing
coal through the surge hole and unknowingly covering Bernaldes.
Thus, a discrete safety hazard existed.
The question is whether sending Bernaldes to free hang-ups
at night when others had only occasional and inadequate visual
contact with him was reasonably likely to result in an injury.
I have found it was reasonably likely Bernaldes would, sooner or
later, have fallen into the hopper. I further find that given
the lack of adequate communication, the accident would not have
been timely detected. Thus, it was reasonably likely that
injuries suffered from the fall into the hopper would have been
made worse -- perhaps fatally worse -- by the violation. This
is es·pecially so because in the context of continued mining
operations , the front-end loader operator, who would have come
to fill the hopper eventually, would not have been able visually
to detect the accident.
Injuries resulting from an inability to assure timely
assistance would have been of a reasonably serious nature. For
these reasons I conclude the violation properly was designated
S&S.
I also conclude the violation was extremely serious.
Regular and dependable communication and contact, while it would
not have excluded the possibility of injury, would have gone a
long way to eliminate the potential of an existing injury being
aggravated or compounded and would have reduced the chances of a
fatality.

UNWAFRANTABLE FAILURE and NEGLIGENCE
The Commission has held that within the context of the
Mine Act, "unwarrantable failure" is aggravated conduct consituting 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 and Ohio
coal Co., 9 FMSHRC 2007, 2010 (December 1987) (Y&O). The
Commission also has stated the fact an operator "knew or
should have known" of conditions constituting a violation is
not sufficient, in and of itself, to establish unwarrantable
failure, for that would make such failure indistinguishable
from ordinary negligence. The thrust of Emery/Y&O is that
unwarrantable failure represents more than an operator's
actual or constructive knowledge of violative conditions •.
Virginia Crews Coal Co., 15 FMSHRC 2103, 2107 (October 1993).
The commission has specified factors that may be indicative of such aggravated conduct. They include: (1) the extent
of the hazard created by the violative condition, (2) the length
ot time the condition has been left uncorrected, and (3) whether

1004 ·

the violation was the result of deliberate activity on the
part of the operator. E1Dery, 9 FMSHRC at 2004-2005; ~'
9 FMSHRC at 2011; Ouinland Coals. Inc., 10 FMSHRC 705, 708-709
(June 1988).
·
The testimony regarding unwarrantable failure was sparse.
Frederick noted that the foreman should have known about the lack
of communication and contact. Lord emphasized that no previous
violations for conditions at the coal shed had been issued to
Frey (Tr. 180, 569-571}.
Despite the paucity of direct testimony on the issue, I am
of the opinion that the totality of facts surrounding the violation requires a finding that it was due to Frey's unwarrantable
failure to comply. First, the condition under which Bernaldes
was assigned to work was extremely hazardous. The failure of
Frey to recognize this in any meaningful way, and the long period
of time Frey allowed the condition to exist (the surge hole had
been in use since 1967 and the coal shed was completed a few
years before the accident} justify a conclusion that not only
were Frey management personnel myopic to the hazard involved,
they were inexcusably so. For me, Frey's inexcusable lack of
diligence is reflected by testimony that only after the accident
did Frey learn that some of Frey's employees working on the coal
surge actually had been caught in the surging coal.
It is true, as Lord pointed out, that Frey had not been
cited previously with respect to the conditions at the surge
pile. However, I do not infer from this that the violation
was minor or hard to detect, or that Frey's failure to correct
it was in some respect excusable or the result of inadvertent
inattention. There is nothing in the record to establish that·
government inspectors ever were at the mine when Frey's employees
were freeing hang-ups, and inspectors are no more clairvoyant
than the rest of us. Nor is this a situation where Frey has
demonstrated a good faith, albeit mistaken belief that its
actions were in compliance with the standard, for there is no
evidence at all of hazard recognition on Frey's part (~
generally, Utah Power and Light co., 12 FMSHRC 965, 972 (May
1990). Rather, the evidence supports finding a glaring and
total failure of such recognition.
I conclude that the violation resulted from Frey's negligence in assigning Bernaldes the task of freeing hang-ups at
night without any adequate communication or contact, and more
than that, it resulted from Frey's inexcusable and unwarrantable
failure to comply.
Qitation No.
4083441

Date
12/21/92

30 C.F.R. §
56.15005

1005

Proposed Penalty
$6,000

The citation states:
A fatal accident occurred at this operation
on December 13, 1992 when an employee fell into
the surg[e] hole in the coal storage shed. The
victim was not wearing a safety belt and line and
none were available at the accident site. The area
around the hole was slippery and sloped toward the
opening. Company operating procedures required
employees to work on this incline to free hangups
in the hole. The mine operator was aware of this
condition. This was an unwarrantable failure
violation.
Exb. P-2 . Section 56.15005 states~ in part, that "safety belts
and lines shall be worn when persons work where there is danger
of falling •. . . "
THE VIOLATION
The requirements of the standard are straightforward -that persons wear safety belts and .lines where there is a danger
of falling. The citation primarily is written in terms of
Bernaldes ' accident -- that Bernaldes was not wearing a safety
belt and line when he fell into the surge hole. It is true that
when Bernaldes' body was found, he was not wearing a safety belt
or line. However, I have concluded that the Secretary has not
established how Bernaldes met his death on December 13 and therefore cannot find a violation of the standard based solely upon
what happened to Bernaldes.
The citation further alleges that a violation of section
56 . 15005 existed because safety belts and lines were not stored
in the coal shed (Tr . 79, 170-71) . This allegation goes beyond
the wording of the standard, which mandates when safety belts and
lines are to be worn, and which does not specify where they shall
be kept or provided. compare 30 C.F.R. §§ 56.150001, 56.15031.
This does not, however, end the matter. The citation
also is written in terms of the company's operating procedures,
that is, of Frey's requirement that employees work on the
surge pile to free hang-ups. I interpret this to mean that,
in addition to the other allegations, the Secretary i s alleging
that there was a practice for .t hose working to free hang-ups
not to wear safety belts and lines. In this regard, I note
the statement of proposed assessment makes this same allegation ("The operator was cited for a violation of • • • [section]
56.15005 because employees were not using safety belts and lines
where there existed the danger of falling while performing the
task of freeing up material that had accumulated in the surge
hole" (Narrative Findings for a · Special Assessment 2.)) Frey

1006

did not object to testimony that was offered to support this
allegation and Frey did not claim surprise or prejudice at its
receipt.
I find the Secretary has proven this part of the alleged
violation . I accept Frederick's testimony that when investigating the accident, he heard one or more of Frey's employees
state that safety belts and lines were not worn in the coal
shed (Tr. 85-86). While Johnson testified that Frey had a
safety policy of requiring safety belts to be worn at bins
and hoppers, there was no testimony to establish how this
policy was enforced and no testimony that it ever was applied
at the surge pile (Tr. 210). I believe that what Frederick
heard was true. Meyers credi bly t~stified that when employees
instructed one another regarding how to free hang-ups, the
instruction did not involve the use of safety belts or lines,
and his testimony was unrefuted (Tr. 330). Further, Meyers
credibly testified that, although he observed employees working
on the surge pile, he never saw them wearing safety belts . ~
I, therefore, find it was a practice for employees freeing
hang-ups at the surge pile not to wear safety belts of lines.
As I ha·:ye previously found, the danger of being drawn
into the hopper by the surging coal was present when employees
were sent to the coal shed to free hang-ups, as was the danger
of inadvertently stepping on crusted-over coal and of falling
through. Therefore, it should have been the practice at the
coal shed to require the wearing of safety belts and lines.
It was not, and I therefore find that a violation of section
56.15005 occurred.

S&S and GRAVITY
The violati on was both S&S and extremely serious. For
reasons previously stated, in the context of continued mining
operations, it was reasonably likely that an employee trying
to free a hang-up would be drawn into the hopper or would
inadvertently fall into it . The wearing of a safety belt and
line would either have prevented the accident or have significantly lessened the chance of serious injury or death by
allowing the employee an immediate and safe way to get out of
the hopper (Tr . 88).
·
UNWARRANTABLE FAILURE and NEGLIGENCE
There was little specific testimony with respect to
unwarrantable failure and negligence. Frederick stated that
he regarded Frey's negligence as "high" because, in essence,
management knew the surge hole was there and did not require
belts and lines be worn" (Tr. 77) .

1007

Despite the fact that Frederick's testimony was restricted
to his assumptions about what management knew, I conclude, as
with the violation of section 56.18020, that the totality of the
evidence requires a finding that the violation was due to Frey's
unwarrantable failure, as well as its high ·negligence.
I again note that the conditions under which Bernaldes and
others worked to free hang-ups were extremely hazardous. The
record is devoid of testimony that Frey, in any meaningful way,
recognized the hazards . This is particularly emphasized by the
fact that, as Johnson and Meyers observed, there was no formal
training regarding how to free hang-ups, that employees trained
one another, and that, as Meyers emphasized, the wearing of
safety belts and lines was not a part of the training (Tr. 258,
330).

As I have also noted, the surge hole and shed had been in
use at the Clearbrook facility for some time, yet during this
period, Frey conspicuously and totally failed to recognize the
hazards to which it subjected its employees when assigning them
to free hang-ups.
ORDER NO.

~

4083444 '

12/21/92

30

C.F.R.
56.17001

§

PROPOSED PENALTY
$3,000

The order states:
A fatal accident occurred at this operation
on December 13, 1992, when an employee fell into
a surg [e] hole in the coal storage shed. Company
operating procedures required employees to work
around this hole on afternoon shift. Illumination
consisted of a single dust to dawn light about
31 feet overhead which did not provide sufficient
illumination to readily see the surg[e ) hole. The
mine operator was aware of this condition. This was
an unwarrantable failure.
·
Section 56. 17001 states, in part, "Illumination sufficient
to provide safe working conditions shall be provided in and on
all • . . loading and dumping sites, and working areas.• "

THE VIOLATION
The question is what constitutes "[i]llumination sufficient
to provide safe working conditions?" As the Commission has
pointed out, the "[r)esolution requires a factual determination
based on the working conditions in a cited area and the nature
of illumination provided.'' Capitol Aaaregates. Inc., 3 FMSHRC

1008

1338 (June 1981). Given the evidence, I conclude such a factual
determination cannot be made and, therefore, that the Secretary
has failed to prove the violation alleged.
The essence of the allegation is that the lighting in
the coal shed was insufficient for workers at night. There
was a single light in the shed, 31 feet above the shed floor
and over the surge hole. Frederick testified that its lens
was covered with coal dust (Tr. 102, 182). Frederi ck appears
to have issued the violation based upon what he believed Meyers
could see when standing in the kiln building looking toward the
shed (Tr . 181-182). However, the question is not what someone
in the kiln building could see, but rather what a person working
in and around the surge pile at night could see, and the Secretary offered no testimony in this regard.
Frederick was never in the coal shed at night, nor did
the Secretary offer evidence with regard to the actual amount
of light the single lamp provided . {For example, no evidence
of light meter tests was presented . ) Further, no Frey employees
who had worked around the coal shed on the afternoon shift were
called to ~estify. Although Johnson believed that it would have
been "very difficult" to see the surge hole at night, there was
no indication Johnson spoke from personal experience. Johnson
admitted that when he worked for Frey and completed preshift
reports for the company, he never indicated the lighting in the
shed was insufficient (Tr. 216, 283-284).
Because the testimony offered by the Secretary is inadequate
to support a finding regarding the nature of the illumination
provided in the coal shed at night for those working around the
surge hole, I conclude the alleged violation of section 56. 17001
has not been established.
My conclusion in this regard is buttressed by the fact
Frey presented testimony from Morrison to the effect that after
the accident, the company measured.the amount of light given off
by the single lamp and found that it measured 4 . 8 foot candles.
According to Morrison, a General Electric Company handbook recommended 5 foot candles for a parking lot and 2 1/2 foot candles
for a rarely traveled path (Tr . 656). While not determinative of
the adequacy of light in the coal shed, the company's evidence
underscores the deficiencies of the Secretary's case.
DOCKET NO. VA 93-59-M
CITATION NO. .DAll
4083442
12/21/92

30 C.F.R. §

56.18009

PRQPOSED PEHALTY
$50

The citation states "A competent person designated by
the operator to take charge in case of an emergency was not
in attendance on the afternoon shift. The foreman was absent

1009

but on call during weekends which is normal practice at this
operation."
Section 56.18009 states, "When person are working at the
mine, a competent person designated by the mine operator shall
be in attendance to take charge in case of emergency."

THE YIOI.ATION
The term "competent person" is defined in the requlations
as "a person having abilities and experience that fully qualify
him to perform the duty to which he is assigned." 30 c.F.R.
§ 56.2.
The Commission has provided guidance for the interpretation and application of standards, such as section 56.18009,
which incorporate definitions set forth in section 56.2. In
analyzing another standard requiring the designation of a
competent person to perform generally specified duties, the
Commission noted that the standard was drafted in general terms
to be adaptable to varying circumstances at the mine. ~
Wyoming Corp., 11 FMSHRC 1622, 1629 (Sept. 1989) (interpreting
30 C.F.R . § 57.18002(a)). The Commission found that within
the context of a such an adaptable standard, the term "competent
person" means "a person capable of recognizing hazards that
are known by· the operator to be present in a work area or the
presence of which is predictable in the view of a reasonably
prudent person familiar with the mining industry." 11. FMSHRC
at 1622 (interpreting 30 C.F.R. § 57.18002).
The citation alleges that on the afternoon shift during
the weekend, it was a practice at the Clearbrook facility not to
have a competent person designated as required by the standard.
According to Johnson, it was company policy during these times
to have supervisors report in the morning and leave later in the
day with the understanding that they could be called at home if
any problems occurred (Tr. 298, 316). Lord confirmed that a
foreman was in charge during the d~y shift on weekends, but that
once the afternoon started, the kiln burner, who was Meyers at
the time of the accident, was in charge and that the kiln burner
was responsible for telephoning the foreman or plant superintendent in case of an emergency (Tr. 594). Lord's testimony was
not refuted.
The Secretary failed to establish that the kiln burners
left in charge, including Meyers, were not competent persons.
At the time of the accident Meyers had worked at the Clearbrook
Mine and Mill for more than nine years. He had trained as a
qreaser and oiler before being placed in charge of the kiln
(Tr. ~32-333). Contrary to what Frederick appeared to think,
the standard does not require the person designated to be a
foreman. Rather, as noted, the person -must be capable of
recognizing known hazards. The Secreta?'Y · did not develop the
record with respect to the hazards that should have been know by

1010

any designated person, nor did he establish Meyers' knowledge,
or lack of it, with respect to such hazards. If anything, the
record suggests that Meyers was fully competent to take charge
in emergencies. Certainly, the Secretary had no .quarrel with
the manner in which he responded to the December 13 accident.
Frederick stated he had done a "very good job" (Tr. 114).
To the extent the Secretary relies upon Frederick's
recollection of what Meyers stated ("If I'm in charge, nobody
ever told me" (Tr. 114)) to establish Frey's normal practice
was to fail to designate a person to be in charge, I find it
unpersuasive. Meyers was called by the Secretary as a witness,
but was not asked about his purported statement to Frederick.
Hearsay statements, such as that reported by Frederick,
are admissible in administrative proceedings. However, there
are limits to the weight they may be given. When a person who
is purported to have made the statement is called as a witness
by the party relying upon the statement and is not asked about
it, in my view, the statement is entitled to little or no weight.
This is especially true here where the manner in which Meyers
responded in the face of Bernaldes accident implied he fully
understood he was supposed to "take charge," and when his
conduct was consistent with what Robinson and Lord testified
was company policy (Tr. 516-517, 594).
Therefore, I conclude the Secretary has not proven the
alleged violation.
DOCKET NO. VA 93-89-M

THE ACCIPENT OF PECEM8ER 11. 1992
STIPULA'}JIONS

Prior to taking evidence on this portion of the case,
counsel additionally stipulated as follows:
1.
The Administrative Law Judge has the jurisdiction
to hear and decide this case.
2.
Inspector Elwood Frederick was acting in his
official capacity as a federal metal/non-metal mine inspector
on December 21, 1992 when he issued Citation No. 4083445.
3.
citation No . 4083445 was properly issued to
[Frey's] agent.
4.
Abatement of the conditions cited in Citation
No. 4083445 was timely.

1011

5. The Clearbrook Mine and Mill is a surface mine and
crushed stone operation owned and operated by [Frey].
Tr. 706-707 (nonsubstantive editorial changes made).

THE SECRETARY'S WITHESSES
Charles w. McNeal
Charles w. McNeal is a MSHA supervisory metal/non-metal .
mine inspector. In the company of Frederick, McNeal participated in MSHA's investigation of a fatal accident that occurred
at Frey's Clearbrook facility on December 11, 1992.
McNeal and Frederick arrived at the mine on December 12
and proceeded to the accident site. McNeal described the site
as located along the main road into and out of the facility,
approximately 200 feet from the mine entrance. The site was on
the left hand side of the road and under 7,200 volt power lines
(Tr. 724) .
Upon ,arriving at the site, McNeal and Frederick observed a
semi-dump truck. The truck belonged to one of Frey's customers.
The truck's tires were burned (Tr. 725). The truck had been
involved in an accident the previous day.
McNeal described how he believed the accident occurred.
A water spray bar was located at the entrance to the facility
(on the right hand side of the road as trucks leave the facility)
(Tr. 760-761). The bar was positioned above the trucks. On
leaving the facility, loaded trucks were driven under the bar,
the spray was activated and the truck's loads were wet down
(Tr. 753). McNeal believed the truck involved in the accident
entered the property and the driver crossed to the left hand side
of the road and used the water spray bar to wet the bed of the
empty truck. (A front-end loader 9perator told McNeal that he,
the . loader operator, had seen the truck at the spray bar
(Tr. 755)). The truck left the water spray bar, moved back to
the right side of the road and proceeded along the road for about
200 feet. The driver again pulled over to the left hand side of
the road (Tr. 727). Although no one saw what happened next,
McNeal surmised that the truck driver then raised the truck bed
to clean it and the bed hit one of the 7200 volt power lines
(Tr. 727, 759). The power line was not deenergized or guarded
(Tr. 727, 759). The truck caught fire. In trying to leave the
truck's cab, the driver contacted the truck's energized frame and
was electrocuted. Approximately 1-1/2 hours passed before the
power company cut off electricity to the line and the truck bed
was lowered (Tr. 727).

1012

The distance from the ground to the bare power wires was
28 feet . When fully raised, the truck bed extended 30 feet above
the ground. The truck bed was made of aluminum (Tr . 741-742) .
McNeal testified further that he was told by Bob Morqan,
a Virqinia state mine inspector, that another accident occurred
in 1988 at nearly the same site when the bed of a truck was
raised into a power line (Tr. · 128). Accordinq to McNeal, Morqan
told him the previous accident occurred within 15 feet of the
December 11 accident and that it involved the same power line
(Tr. 733) . (MSHA did not investiqate the 1988 accident. McNeal
did not know why (Tr. 776)) .
McNeal and Frederick returned to the MSHA off ice and
reviewed their findings. They agreed that a violation of
section 56.12066 had occurred. Therefore , Frederick issued
to Frey Citation No . 4083445.
Section 56.12066 requires bare power lines to be quarded
or deenergized when metallic equipment can come in contact with
them. McNeal explained the citation was issued to Frey, rather
then the owner of the truck, because "the mining company is
responsible for the safety of customers who visit [its] property
(Tr. 750) .
McNeal believed it hiqhly likely a truck that pulled over
at the site would raise its bed into the unquarded wires. Frey
had many customers who required the materials they purchased
to be clean and dry . Therefore, ·the truck drivers frequently
cleaned the beds of the trucks before loading. McNeal explained
that a truck driver "qoes [to] th[e] water spray bar, deposits
water in the [truck] bed, pulls up from there a little ways,
pulls off the road and dumps his bed •••• [W]e've been told they
do it often" (Tr. 747-748). As he further explained:
you've qot this particular spot that is 200 feet
down from this water spray bar which, on occasion
not every truck that comes in here does that -- a
truck will pull under to deposit water in his bed
when he had to have this dry, clean material that
he has to deliver and he has to have a clean bed in
the truck and wash the bed of the truck out. And
there's a real nice spot there to pull off that road
and raise that bed of that truck under that power
line. It happened twice.
Tr. 765-766.

McNeal maintained that the accident site was level with
the road. It also was an area where the power lines, which here
ran parallel · with the road, were closest to the road (Tr. 767,

1013

768-769). There were no signs warning of the presence of the
power lines (Tr. 772) .
McNeal agreed that there were several other places along
the road where a trucker could stop, could raise the bed of the
truck and not come in contact with power lines (Tr. 765). McNeal
stated that to his knowledge there was no designated area on the
facility where incoming trucks could dump their residual contents
before picking up their loads (Tr. 760).
Injuries resulting from raising a truck bed into a power
line could be fatal or nonexistent. If the driver stayed inside
the truck's cab, nothing would happen. If the driver left the
cab and touched the truck frame or· the surrounding ground while
the truck frame was energized, current would flow through the
dr i ver's body and the driver could be electrocuted (Tr. 748-749).
McNeal believed the company's negligence was high because
a similar accident had occurred within 15 feet of the site, yet
the company, in NcNeal's words, had done "nothing, absolutely
nothing" (Tr. 750).
Elwood s. Frederick
Frederick testified when he first saw the truck, it
was sitting at the accident site with its bed in the "down"
position (Tr. 787). The overhead 7,00 volt power line was
spliced where the truck bed had hit the line. In addition,
Frederick maintained that 15 feet from the splice sleeve
were other splices in the line . These indicated where the
previous accident had occurred (Tr. 787-788, 791, 802).
With regard to the previous accident, Frederick did
not remember who told the MSHA investigators it had occurred,
but he believed both company personnel and the Virginia
state mine inspectors mentioned it- (Tr. 789). As he recalled,
he and McNeal were accompanied during the investigation by
Dwayne Johnson, then plant superintendent, by Charles Morrison,
Frey's director of personnel and safety, and by Vincent Lord,
who subsequent to the accident replaced Johnson as plant
superintendent (Tr. 788) . As Frederick understood it, when
the 1988 accident occurred, there was a stockpile in the area,
but it was removed following the accident (Tr. 789, 804). There
were no signs or barricades to indicate the presence of power
lines, and Frederick was of the opinion that as a result of the
1988 accident, Frey was on notice that warning signs should have
been posted or other corrective measures taken (Tr. 790). As
of December 11, 1992, the power lines were neither guarded nor
deenergized and these conditions constituted a violation of
section ·56.12066 (Tr. 796).

101 4

Regarding the S&S finding, Frederick was asked how likely
it was that the truck bed would have been raised . into the power
line and he responded "well, this occurred" (Tr. 792). He added
that the area of the accident must have been a very popular spot
for truckers to pull over because two accidents had happened
there (Tr. 807). In his opinion, an accident was reasonably
likely because controlling independent truckers was extremely
difficult and, if a driver had something to dump, the driver
would pull into the area, and raise the truck bed (Tr. 794, 795).
As he put it, truck drivers "do a lot of dumb things" (Tr . 808).
Frederick could not recall what the side of the road across from
the accident site looked like (Tr. 812).
The finding of "high" negligence was based upon the previous
accident and the fact that, in the intervening four years, the
company had done nothing to change conditions in the accident
area, except move the stockpile (Tr. 796-797) . Frederick added
that Frey did not own the power lines . Frey had contacted the
power company about taking remedial actions following the 1988
accident, but nothing had happened (Tr. 798-801).
Dwayne Johnson
On December 11, 1992 Dwayne Johnson was plant superintendent. He stated that around 10 : 00 a.m . that day he was in the
office when he was informed that a truck was on fire . Johnson
grabbed a fire extinguisher, got in his truck and drove to the
site of the fire. It was snowing hard. The truck's bed was
raised. The truck was emitting a lot of smoke and sparks were
coming from its wheels. Another Frey employee was at the
accident scene. He and Johnson could not see the truck driver.
The smoke cleared and they saw the driver lying on his back
beside the truck. Johnson ran with the fire extinguisher toward
the truck. About 25 feet from the truck Johnson could feel
electricity. He backed away and looked up . Despite the snow,
he could see that the truck bed was in contact with one of the
overhead power lines (Tr. 815-816, 827-828).
Lord arrived and Johnson told Lord to call the power
company and have them shut off the power. The fire department
also was called . When they arrived, the firemen used a nonconductive pole to pull the driver away from the truck. The
firemen tried to revive the driver, but had no success. The
body was removed by ambulance.
The power company subsequently turned off the power and
the fire was extinguished. The truck's bed was lowered and
the power company put sleeves on the line where the bed had
contacted it (Tr. 816-817). (The sleeves are what Frederick
referred to as splices.)

101 5

Prior to the accident, the power lines were not guarded.
'l'he road was used by all traffic going in and out of the
facility (Tr . 817) .
According to Johnson, the area where the
accident occurred was the first open area after entering the
facility. At this area , a truck driver could pull over to the
left or ·right of the road (Tr . 829). In the case of the victim,
•He just happened to pull to the left." ~ It was common to
pull either way. ~, 830 . There are no markings on the road
indicating the right or left side of the road .
Prior to the accident, Johnson had never seen a semi-dump
truck raise its bed in the accident area. However, he had seen
smaller trucks do i t (Tr . 818) . It was common for smaller trucks
to raise their beds in the are a (Tr . 821). Johnson has seen it
done dozens of times in a year (Tr. 828) . When the beds of the
smaller trucks were raised, they were not within 10 feet of the
power lines (Tr . 826) . Trucks generally raised their beds to
remove contaminants or snow (Tr . 819). If Frey personnel
observed a truck with contaminants in its bed, the driver would
be told not to clean the bed on Frey property (Tr. 820, 824-825,
834) .
Although Johnson was not with the company when the previous
accident occurred, the story of how a driver had raised his
truck's bed and hit power lines was commonly told at the
facility . After the accident of December 11, Johnson became
aware that the previous acqident had occurred in the same area,
because he could see the sleeves on the power lines from the
previous accident (Tr . 822).
Vincent Lord
Vincent Lord, who became the plant superintendent after
Johnson left, stated that there were approximately 150 to
200 truck trips per day into and out of the facility, involving
approximately 100 trucks (Tr . 839, 859). The trucks came onto
the property empty and were weighed. If the drivers were
unfamiliar with the site, they were directed where to go and
how to load. The trucks were supposed to enter the property
with clean beds. If their beds were not clean and, if Frey
officials knew, the trucks were sent to a designated ·area to
clean the beds (Tr. 836-837).
The water spray line was installed to wet down particular
material that was shipped to the State of West Virginia and
that was required to arrive wet (Tr. 837). Although the line
was used for other purposes, such as rinsing off .cars, to flush
dust off of loads or to clean beds, Frey tried to discourage
such use (Tr. 838). 'l'he only way to control the use of the
spray was for Frey personnel to reprimand truck drivers if the
personnel saw the drivers using the water for other than its
intended purpose (Tr. 839).

1016

It had long been a policy at the facility for trucks not
to raise their beds on the company's property. Lord could not
recall any truck ever raising its bed in the area where the
accident occurred , except the truck involved in the 1988 accident
(Tr. 840, 861). He did recall seeing trucks raise their beds in
areas near the accident area. While most of those trucks were
smaller than the semi-dump truck involved in the accident, some
were as large as the semi-dump truck (Tr. 860-861).
On the day of the accident, Lord had no trouble seeing ·
the power lines through the snow (Tr. 841) . Lord identified
a photograph of the burning truck with its bed raised into
one of the high voltage wires (P. Exh. 13). The photograph
was taken the morning of the accident. The truck had pulled
up next to a stockpile of material on its left (ML_, Tr. 842) .
The truck had crossed over onto the left hand side of the road
against the traffic (Tr. 834) . Lord also identified a photograph of the truck taken from the rear (P. Exh. 14). Lord
stated that the area on the right side of the road, across from
the area where the accident occurred, was a low, flat area
similar to the accident site on the left, but with no overhead
power lines (Tr . 844) . There was also a small stockpile on the
right (Tr. s\45) . In Lord's view, in addition to the area on the
right, other flat, level areas were present where a truck could
pull over along the road.
Lord testified he understood that the deceased driver had
completed a safety course within the past month and that the
course had included, among other topics, the danger of raising
a truck bed into power wires (Tr. 847-849). Lord also stated
that he understood OSHA regulations required that stickers
warning of the danger of raising the truck bed into wires be
placed inside the truck cab (Tr. 849).
Lord acknowledged the 1988 accident involved the bed of a
truck hitting a power line in the vicinity of the December 11
accident (Tr. 856). Lord believed that at the time the 1988
accident occurred, Frey had notified MSHA of the accident and
the agency had done nothing (Tr. 851). The company was not
cited for any violations by the state following the state's
investigation of the accident . ~ As best Lord could recall,
the state suggested the company work with the power company
to get the company to move the power lines, raise them, or put
warning signs or devices on them (Tr. 859). After the 1988
accident, the company tried to get the power company to do one
of these things (Tr. 852, 856). Frey made multiple requests of
the power company, but got no results (Tr. 852, 860). As Lord
explained, "They ••• claimed ••• that the line is ours. We
claim[ed] that they build the line and the line is theirs"
(Tr. 853).

1017

Charles w. Morrison
Charles Morrison testified that he called MSHA following
the 1988 accident. After describing the accident to an MSHA
official, the official told him MSHA did not need to investigate
it (Tr. 863). In contrast, the state investigated the accident
and state officials recommended that the area be barricaded, or
that warning markers be placed on the lines (Tr. 875-876, 882).
The state mine inspector recommended that Frey try to work with
the power company, which Frey repeatedly tried to do (Tr. 863864, 876, 879).

Morrison also identified the 9SHA regulation requiring the
outside of equipment with hoists (such as the semi-dump truck) to
be posted with signs warning that it is unlawful to operate the
truck within 10 feet of overhead high voltage lines. One such
sign also was required inside the equipment's cab (Tr. 865-865).
Truckers were supposed enter Frey's property with clean
beds. When they did not, and, when Morrison saw truck drivers
raise their beds on Frey's property, he would tell them not to
do it (Tr. 871-872).
MOTION TO STRIKE
At the close of the Secretary's case, counsel for Frey
moved to strike the testimony of the Secretary's witnesses.
Counsel was particularly concerned with the testimony of Johnson
regarding the likelihood of injur.y. Counsel stated that, even if
his testimony were credited in the light most favorable to the
Secretary, it would not establish that an injury was reasonably
likely in that he testified truck beds were raised "all over the
place , " and not in one particular spot (Tr. 835). I reserved a
ruling.
The Motion is DENIED. As with the initial motion to strike,
conclude if I were to totally credit Johnson's testimony, there
are portions of it that certainly are relevant to the question of
whether, in the context of continued operations at the mine, the
cited conditions were reasonably likely to result in an injury.
I

CITATION NO.

DATE

4083445

12/Ql/92

30 C.F.R.
56 . 18009

§

PROPOSED PENALTY
$9,500

The citation states:
A fatal accident occurred at this operation on
December 11, 1992 when a customer truck driver raised
the bed of his truck into an overhead 7,200 volt bare
power line 28 feet above. A similar incident occurred

1018

at this location on May 18, 1988 when another customer
truck driver raised the bed of his truck into the same
power line.
Section 56.12066 states, "Where metallic tools or
equipment can come in contact with.trolley wires or bare
powerlines, the lines shall be guarded or deenergized."
THE VIOLATION
McNeal and Frederick agreed that in the area where the
accident occurred, the high voltage lines were 28 feet above
the ground. They also stated that the facility was at times
visited by semi-dump trucks whose beds, if raised, extended
30 feet above the ground (Tr. 741-742, 787-788).
The height
of the power lines and the raised beds of semi-dump trucks was
not disputed by Frey's witnesses. Lord agreed with McNeal and
Frederick that the facility was at times visited by semi-dump
trucks of that, or a similar, size and he recalled seeing trucks
of that size raise their beds on mine property (Tr. 860-861).
McNeal, Frederick and Johnson testified that the powerlines were
not guarded or deenergized, and Frey does not argue otherwise
(Tr. 727, 787-788, 790, 817).
It is clear, therefore, that the beds of semi-dump size
trucks if raised in the area where the December 11, 1992 accident occurred, could contact the powerlines that were bare and
were not guarded or deenergized. Not only could it happen in
theory, it happened in fact, and I· find the violation existed
as charged.
S&S and GRAVITY
I conclude that the Mathies test for determining the S&S
nature of a violation has been easily met.
A violation of mandatory safety standard 56.12066 existed.
The evidence establishes a discrete safety hazard in that by
failing to quard or deenergize the power wires, Frey subjected
the drivers of semi-dump sized trucks in general, and the
deceased driver in particular, to the possibility of death or
serious injury. As Frederick noted, once the bed touched a wire,
the driver could avoid injury only if he or she remained in the
cab of the truck. If the driver left the cab -- and if the truck
caught fire, as happened in the case Of the deceased driver, a
driver almost surely would have attempted to flee -- serious
•hock injury or electrocution was virtually certain (Tr. 748749).
As is frequently the case, when the alleged S&S nature
of a violation is challenged, the essential question is
whether the Secretary has also established a reasonable

1019

likelihood that the hazard contributed to will result in
an injury. The testimony establishes that the raising of
truck beds was an ongoing problem at the facility. McNeal
was the first witness to explain that many customers of
Frey's products required materials purchased from Frey to
be clean and dry and, therefore, that trucks that entered
the facility often raised their beds to clean them prior to
being loaded (Tr. 747-748). Frederick's and Johnson's
testimony corroborated McNeal's (Tr. 794-795). Lord did
not deny the practice occurred. Indeed, he remembered seeing
trucks raise their beds on Frey property, even near power
lines (Tr. 860-861).
This is not to say that the practice was condoned by Frey.
credit the testimony of Johnson and Morrison that drivers
were not supposed to clean their beds on Frey property {Tr. 820,
834. 871-872). I further credit Johnson's testimony that if Frey
personnel saw drivers dumping contaminants, they told the drivers
not to do it, and that Johnson had seen Lord so instruct drivers
(Tr. 825) . I note, as well, Morrison's similar testimony
regarding Lord (Tr. 871-872). This said, the testimony amply
documents that Frey's objections did not prevent the practice and
that the raising of beds remained an ongoing problem. I believe
that Frederick was correct when he observed that it was difficult
for Frey to control the actions of the truckers {Tr. 793-794).
I

I also conclude that the area where the accident occurred
was one that invited such conduct. McNeal and Johnson credibly
described the area as level and with room enough for a semi-dump
truck to pull over (Tr . 765-766, 829, 830). I recognize that the
area across from the accident site (the area on the right side of
the road when headed into the facility) was an even more inviting
site at which to clean truck beds in that it was equally level,
afforded ample room and had no overhead power lines (Tr. 766767). I believe it is just common sense that an incoming truck
would have been more likely to puli to the right hand side of
the road than to left. Nonetheless, this does not exclude
finding that it was reasonable likely trucker drivers would pull
to the left side and, having done that, would raise their beds.

I believe it important to remember, as did Johnson, that
the road was not divided with a median line, somethipg that
might have made a trucker think twice before crossing to the left
side of the road (Tr . 831). Indeed, the road itself appears not
to have been well defined at all. Johnson described it as not as
a road per se, but more like "a big, open level area" (Tr. 830).
All of which, in my opinion, made crossing to the left, while
perhaps less likely than crossing to the right, an easy thing
to do.

1020

The power wires ran above the area and parallel to the
road (Tr. 767, 768-769). Obviously, a truck driver with a bed
long enough to hit the wires would have been out of his or her
mind to purposefully raise the bed under the wires. The hazard
presented by the violation was from an inadvertent accident, not
from a suicide. Even though warned by notices inside and outside
the cab of the truck and, even though trained in the hazards
posed by overhead wires, truck drivers intent on cleaning their
beds would not always have noticed the wires without visual signs
or warning devices present and external to the truck to remind
the drivers of the wires' presence.
Given the many daily truck trips into and out of the
facility, given the continuing practice on Frey's property of
cleaning truck beds by raising them, and given the conducive
nature of the area where the accident occurred to the performance
of the practice, I conclude it was reasonably likely that sooner
or later, in the context of continued normal operations at the
facility, a truck the size of a semi-dump would have pulled to
the left, raised its bed into the overhead unguarded and
energized power wires. I also conclude that this would have
lead to the serious, if not fatal, injury of the driver.
As all· of the witnesses recognized, the very accident
that triggered the citation occurred before, and in virtually
the same spot. From all that appears on the face of the record,
the interval between the accidents was simply fortuitous, as
was the fact the first accident appears not to have resulted in
a fatality. Having happened twice, had the conditions continued
unabated, the accident could have happened again at any .time and
with a result as disastrous as that of December 11. The
violation was S&S.

The violation also was extremely serious. Traumatic shock
injury or death were the potential.hazards, and the likelihood
of an accident causing such injuries was very great indeed.
NEGLIGENCE
Negligence is the failure to meet the standard of care
required by the circumstances and it is difficult to imagine a
situation in which an operator could have been less responsive
to meeting its required standard of care than was Frey. In fact,
more than simply failing to meet the required standard of care,
the record compels the conclusion, and I find, that Frey hardly
even tried.
The Mine Act requires that Frey comply with the mandatory
standards, not only to protect its own employees, but also to
protect all individuals working at its facility. This is an
extensive responsibility, but it is one that Frey assumed in
choosing to operate, control and supervise its Clearbrook

1021

facility. If Frey were not on notice before the 1988 accident
that in the accident area, truck beds could and would be raised
into the energized power wires, it subsequently was. As Johnson
testified, the story of the 1988 accident was known throughout
the facility (Tr . 822) . McNeal described Frey's response as
"nothing, absolutely nothing," and McNeal was hardly exaggerating
(Tr. 750) .
It is clear that after the 1988 accident the practice of
raising truck beds on Frey's property continued . It is equally
clear that after the 1988 accident Frey knew full well what
should have been done to guard aga~nst the practice in the
accident area. I credit the testimony of Lord and Morrison
that Virginia mine officials who investigated the first accident recommended that either the power lines be moved, raised,
or that warning devices be installed on the lines (Tr. 852,
875 8.7 6).
Had any of these recommendations been instituted,
Frey would have gone a long way toward eliminating the hazard .
In addition, Frey might well have been in compliance with
section 56.18009, and, most important, the deceased driver
might yet be alive.
Unfortunately these speculations must remain just that
because Frey's efforts to alleviate the danger posed by the
situation in the accident area were limited essentially to
disputing with the power company who was responsible for taking
remedial measures. Frey could not get the power company to do
the work (Tr. 852, 860, 882). Therefore, Frey did virtually
nothing to change the conditions in the area that allowed the
accident to occur. (Frey did remove a stockpile from the area,
but that did little to make it a less attractive place to pull
over . )
The result was another acc ident . This time one that
resulted in death. The fact that the deceased driver contributed to the accident with a negligent action of his own
does not diminish Frey's lack of care. Many of the mandatory
safety standards are designed to protect miners from themselves.
Frey was required to take remedial measures precisely because a
truck driver might act in the negligent manner of the victim.
The failure of MSHA to cite the violation in the four years
that passed between the first accident and the second does not
indicate that Frey was any less irresponsible. Whatever the
deficiencies of MSHA's investigation process and the inadequacies
of its inspections, they are not exculpatory of Frey's qlaring,
irresponsible and totally inexcusable failure to meet the
standard of care required.

1022

OTHER CIYIL PENALTY CRITERIA

In the 24 months prior to the issuance of the subject
citations and orders, 32 violations of the mand~tory safety
standards were cited at the Clearbrook Mine and Mill (Exh. P-6).
This number falls between a small and medium history of previous
violations and is not such as should increase civil penalties
otherwise assessed. Further, the Clearbrook Mine and Mill is
a medium sized facility and Frey is a small operator. ~ - Sec.
~ 47.
Frey offered no evidence to indicate the size of any
penalties assessed would have an effect on its ability to
continue in business, and I so find. Finally, Frey exhibited
good faith in achieving rapid compliance after being cited for
all of the violations found herein. I also note the parties'
stipulation that the violation of section 56.12066, cited in
Citation No. 40 83445 (Docket No. VA 93-89-M), was timely abated .
QIVIL PENALTIES

The Secretary has proposed a civil penalty of $3 , 500
for the violation of ·section 56.16002(a)(l) set forth in
Order/ Citation No. 4082539 . The violation was extremely
serious . Frey repeatedly sent its employees into harm's way
and its failµre to correct conditions that were inordinately
hazardous represented heightened negligence on the company's
part . Given these factors, I find the Secretary's proposal
inadequate. Rather , I conclude a civil penalty of $10,000 is
appropriate for the violation .
For the violation of section 56 . 18020, set forth in
Order No. 4082540 , the secretary has proposed a civil penalty
of $6,000. Again, I find the proposal inadequate given the
extreme seriousness of the violation and the inexcusable
failure of Frey t o recognize the hazard to which the violation
subjected i ts miners. I, therefore , conclude a civil penalty
of $10,000 is appropriate for the violation.
For the same reasons, I also find inadequate the Secretary's proposal for a civil penalty of $6,000 for the violation
of section 56.15005 1 set forth in Citation No. 4083441. Again,
I conclude a penalty of $10,000 is warranted .
Finally, the extreme seriousness of the violation of
section 56.18009, set forth in Citation No. 4083445, and
Frey's inexcusable negligence in allowing the violation to
exist, coupled with the fact that the violation unquestionably contributed to the death of a customer truck driver,
in my view calls for a civil penalty far in excess of the
$9,500 penalty proposed by the Secretary. (The Commission
has recently stated the "potential for death •• posed by the
violation is appropriate in applying the gravity criterion."
Polese Brothers Co., 16 FMSHRC ~'Docket No. CENT 92-110-M

1023

(4/11/94), .sl..iR QR. at 7). I conclude a penalty of $35,000 is
appropriate. But for the company's small size and the fact
that the truck driver negligently helped to occasion his own
death, an even larger penalty would have been justified.
ORDER
Order/Citation No. 4082539, Order No. 4082540, and
Citation No . 4083441 are AFFIRMED and Frey is ORDERED to pay
civil penalties of $10,000 each for the violations set forth ·
in each. Citation No. 4083442 is AFFIRMED and Frey is ORDERED
to pay a civil penalty of $35,000 for the violation set forth
therein. Order No . 408322 2 and Citation No . 4083442 are VACATED.
Frey is ORDERED to pay the civil penalties within 30 days
of the date of this decision and upon receipt of payment these
matters are DISMISSED .

J)vV;'c//(£JovfLDavid F . Barbour
Administrative Law Judge
Distribution:
Javier I. Romanach, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd . , Room 516,
Arlington, Va 22203 {Certified Mail)
Thomas Moore Lawson, Esq., Hazel and Thomas, P.c.,
107 North Kent Street, P.O. Box 2740, Winchester, VA 22061
{Certified Mail)

1 0 24

ADMINISTRATIVE LAW JUDGE ORDERS

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

MAR
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ON BEHALF OF
DANNY SHEPHERD,
Complainant
v.

7 1994
TEMPORARY REINSTATEMENT PROCEEDING
Docket No. KENT 94-396-D
BARB CO 94-02

.
·:

Mine No. 1

IRISHMAN ELKHORN COAL
COMPANY,
Respondent
ORDER OF TEMPORARY REINSTATEMENT
Before:

Judge Feldman

The Secretary has filed an application for Temporary
Reinstatement pursuant to Section 105(c) (2) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 815(c) (2), on behalf
of Danny Shepherd. Shepherd was employed by the Irish Elkhorn
Coal Company at its No. 1 Mine from September 30, 1993, until
October 8, 1993, when he was discharged.
The Secretary's reinstatement application is supported by an
affidavit of Lawrence M. Beeman, Chief, Office of Technical
Compliance and Investigation for coal Mine Safety and Health,
Mine Safety and Health Administration. Beeman's affidavit
alleges that Shepherd engaged in several protected activities,
including his refusal to operate a continuous mining machine in
an unsafe condition, his distribution of miners' rights booklets
to mine personnel and his statements to miners that they did not
have to work under various unsafe conditions.
The Secretary's application was served upon Billy R. Watson,
general manager of the respondent, and attorney c. Graham Martin,
on February 4, 1994. Commission Rule 45(c), 29 CFR. § 2700.45(c)
in part provides: "Within ten days following receipt of the
Secretary's application for temporary reinstatement, the person
against who relief is sought shall advise the Commission's Chief
Administrative Law Judge or his designee and simultaneously
notify the Secretary, whether a hearing on the application is
requested. If no hearing is requested, the Judge assigned to the
matter shall review immediately the Secretary's application and,

1025

if based on the contents thereof the Judge determines that the
miner's complaint was not frivolously brought, he shall issue
immediately a written order of temporary reinstatement."
The Secretary's application was followed by a letter
filed on February 22, 1994, requesting Shepherd's reinstatement
in view of the respondent's failure to request a hearing in this
matter. Therefore, Commission Rule 45(c) requires me to review
the Secretary's application to determine if Shepherd's complaint
has not been frivolously brought.
The "not frivolously brought" standard set forth in Section
105(c), 30 u.s.c. § 815(c), is satisfied when there is a
reasonable cause to believe that the underlying discrimination
complaint is meritorious. J. Walter Resources v. Federal Mine
Safety and Health Review Commission, 920 F.2d 738, 747 (11th Cir.
1990). Thus, the Secretary must prevail on an application for
temporary reinstatement if the facts supporting the application
are not insubstantial or frivolous. Id. at 747. Beeman's
affidavit submitted in support of the Secretary's application
specifies alleged protected activities that are contemporaneous
with Shepherd's employment termination which occurred on or about
October 8, 1993. Consequently, I conclude that Shepherd's
complaint is not clearly without merit or pretextural in nature.
Therefore, I find that Shepherd's complaint has not been
frivolously brought.
Accordingly, the Irishman Elkhorn Coal Company IS ORDERED to
immediately reinstate Danny Shepherd to the position from which
he was discharged on or about October 8, 1993, or, to an
equivalent position, at the same rate of pay and with the
equivalent benefits. Shepherd's entitlement to backpay and
benefits shall be calculated from the date of this order.
/

( v,:::-~
· ·:

/ / .---=-

/

-..!.

..___ ~

Jerold Feldman
Administrative Law Judge
(703) 756-5233
Distribution:
Carl c. Charneski, Esq. Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Tony Oppegard, Esq., Mine Safety Project, 630 Maxwelton Court,
Lexington, KY 40508 (Certified Mail)
Billy Watson, General Manager, Irishman Elkhorn Coal Company,
Inc., P.O. Box 729, Hindman, KY 41922 {Certified Mail)

1026

nDBDL llDIJI SUB'.l'Y DD mL'l'll Jm'V];ft COKllISSIOB
OFFZCB OP AJ>KZNZSTRATIVB LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIJCB
FALLS CHtTRCB, VIRGINIA 22041

MAR 1 5 1994
CONTEST PROCEEDINGS

MADISON BRANCH MANAGEMENT,
Contestant

Docket No. WEVA 93-218-R
Order No. 3976643: 3/1/93

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

.. Citation
Docket No. WEVA 93-219-R
3976644; 3/1/93
0

..
Docket No. WEVA 93-220-R
...• citation
3976647; 3/4/93
..
Job. No. 3 46-05815

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

CIVIL PENALTY PROCEEDINGS

Petitioner

Docket No. WEVA 93-373
A.C. No. 46-05815-03520

MADISON BRANCH MANAGEMENT,
Respondent

.: Madison Branch Job No. 3
. Docket No. WEVA 93-412

v.

A.c. No. 46-05815-03521

Mine: Job No. 3
SOL No. 93-41226

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 03-415 .
A.C. No. 46-05815-03501HWZ

v.
Job No. 3

PROTECTIVE SECURITY SERVICES,
Respondent

ORPER DENYING BESPONPEN'TS' MOTIONS FOR SUMMARY DECISION
.
aim
NOTICE OP HEARING

These consolidated proceedings concern Petitions for the
Assessment of Civil Penalties filed by the Secretary against
Protective Security services {the independent contractor) and
Madison Branch Management (the operator) for alleged violations
1027

.._

...

related to the fatality of a night watchman. The victim,
employed by Protective Security Services, succumbed to carbon
monoxide poisoning at Madison Branch Management's No. 3 Surface
Mine during the early morning hours of March 1, 1993. During a
conference call on January 5, 1994, the respondents, through
counsel, informed me they wished to file Motions for Summary
Decision on the jurisdictional issue. Accordingly, on
January 13, 1994, I continued this matter in order to give the
parties an opportunity to file the subject motions. I now have
for consideration the respondents' Motions for summary Decision
and the secretary's Opposition, as well as the parties'
responsive pleadings.
Tqe fundamental facts of this case that give rise to the
jurisdictional question can be briefly stated. Allen Garrett,
the decedent, was employed by Protective Security Services as a
part-time weekend security guard. Garrett was assigned to work
weekends at Madison Branch Management's No. 3 surface mine
facility near Lynco, in Wyoming County, West Virginia.
Garrett
routinely reported to work at the mine site on Saturday nights at
10:00 p.m. He was relieved by another security guard on Sunday
mornings at 10:00 a.m. Garrett would then report back to work on
Sunday night at 10:00 p.m. and would leave at 6:00 a.m. Monday
morning when personnel from Madison Branch Mining would report to
work. There was no coal production during the weekend shifts
when Allen Garrett and other security personnel employed by
PrOtective Security Services were present. Garrett's job duties
included observing activities at the mine site and making written
reports of his observations. Garrett was not permitted to
operate any equipment, nor engage in any activity other than
observing and reporting.
On Sunday, February 28, 1993, at approximately 10:00 p.m.,
Garrett reported to the No. 3 Mine in his Ford Bronco II vehicle.
Garrett's shift was scheduled to terminate the following morning
on March 1, 1993, at 6:00 a.m. At approximately 6:10 a.m. that
morning, a truck driver observed Garrett's vehicle parked at the
top of the main haulroad. The truck driver approached Garrett to
ask him to move his vehicle. He found Garrett lying unconscious
on the floor of his vehicle. Garrett was immediately transported
via ambulance to a local hospital where he was pronounced dead on
arrival. The cause of death was carbon monoxide intoxication.
Investigating authorities concluded that Garrett fell asleep
in his vehicle and succumbed to carbon monoxide poisoning
sometime between 12:48 a.m., when the last entry in Garrett's log
book was made, and 6:10 a.m. when he was found by the truck
driver. At the time Garrett was discovered, the engine in his
vehicle was running, the dome light was on, and, the heater was
running on high.

1028

The respondents assert they are not subject to the Federal
Mine Safety and Health Act of 1977 (Mine Act) because Protective
security Services is not an "operator" and Allen Garrett was not
a "miner" within the statutory definition of those terms. In
furtherance of their jurisdictional objection, the respondents
rely on the statutory language and legislative history a~ well as
the Circuit Court decisions in National Indus. Sand Ass'n v.
Marshall, 601 F.2d 289 (3rd Cir. 1979), and Old Dominion Power
Company v. Secretary of Labor & FMSHRC, 772 F. 2d 92 (4th Cir.
1985). They maintain these authorities support their contention
that Protective Security Services is not an "operator" because it
did not have a continuing presence at the mine and because it was
not engaged in the extraction process.
Section 3(d) of the Mine Act defines the term "operator"
as "any owner, lessee, or other person who operates, controls,
or supervises a coal or other mine or any independent
contractor performing services or construction at such mine."
30 u.s.c. § 802(d). The term "miner" is broadly defined in the
Mine Act, as "any individual working in a coal or other mine."
30 u.s.c. § 802(g). The phrase "coal or other mine" includes
mine property, whether on the surface or underground. 30 u.s.c.
§ 802(h) (l).
In examining these terms, it is noteworthy that the
predecessor legislation to the current Mine Act, known as
the Federal Coal Health and Safety Act of 1969, 30 u.s.c.
§ 801 et seg., defined "operator" as "any owner, lessee, or
other person who operates, controls or supervises a coal mine."
The current Mine Act adopted in 1977, expanded the definition of
"operator" to include "any independent contractor performing
services or construction at such mine." 30 u.s.c. § 802 (d).
Thus, as noted by the Commission in Otis Elevator Company,
11 FMSHRC 1896, 1901 (October 27, 1989, aff'd Otis Elevator Co.
v. Sec'y of Labor, 921 F.2d 1285 (D.C. Cir. 1990), the history of
the Mine Act clearly reflects a legislative intent to broaden the
Secretary's enforcement power over a wide range of independent
contractors as well as mine operators. 1 In this regard, ·the
Commission has broadly construed the terms "operator" and "miner"
1

The Senate subcommittee report regarding section 3(d) of
the Mine Act ref erred to independent contractors engaged in mine
"construction" or "extraction." S. Rep. No. 181, 95th Cong., 1st
sess. 14 (1977). The Conference Report referred to independent
contractors as those "performing services or construction .•. who
may have a continuing presence at the Mine." s. Conf. Rep. No.
461, 95th Cong. 1st Sess. 37 (1977). In Otis Elevator, the o.c.
Circuit analyzed the legislative intent of section 3(d). The
court concluded section J(d) was inclusive and stated "Congress
has written section 3(d) to encompass 'ADY independent contractor
performing services at a mine' (emphasis added)." 921 F.2d at
1291.

1029

to be applicable to those performing services as a construction
worker, elevator mechanic, laboratory technician or clerk-typist
working at a mine site. ~ i.ancashire Coal company, 13 FMSHRC
875, 886 (June 1991), rev'd on other grounds, Lancashire Coal Co.
y. Sec'y of Labor, 968 F.2d 388 (3rd Cir. 1992). Thus, the.
statutory language and legislative history are not supportive of
the respondents' jurisdictional objections.
Nor, am I persuaded by the respondents' primary reliance on
the Third and Fourth Circuit holdings in National Sand and
Old Dominion, respectively. The National sand decision noted
there may be a point at which the services provided or the degree
of involvement in mining activities is so remote or infrequent
that such services cannot be properly considered as performed by
"operators." 601 F. 2d at 701. In Old Dominion, the court
concluded only those independent contractors involved in mine
construction or extraction, or, that have a continuing presence
at the mine, should be considered as "operators."
772 F.2d
at 96.
Thus, the court determined an electric utility's meter
reader, who briefly entered the mine premises approximately once
each month, had mine contacts that were "so rare and remote from
the mine construction or extraction process [that the utility
did] not meet [the statutory] definition of •operator'."
772 F.2d at 96, 97.
considering jurisdictional objections similar to those
proffered by the respondents, the Commission in Otis Elevator,
concluded that the Court's decisions in National Sand and Old
Dominion should be narrowly construed. 11 FMSHRC at 1898,
1901-02.
As noted above, National Sand and Old Dominion were
concerned with activities that were, "so infrequent or
de minimis" (601 F.2d at 701) or "so rare and remote" (772 F.2d
at 97) that these activities did not give rise to Mine Act
jurisdiction. I do not construe the services. regularly provided
by Protective Security Services personnel during eight to ten
hour shifts each weekend beginning in the early morning hours on
Saturdays and ending at 6:00 a.m. on Mondays as ~ minimis.
Moreover, these services provided throughout each weekend at the
mine site constitute the requisite "continuing presence" to
afford Protective Security Services "operator" status under the
Mine Act. As the D.C. Circuit Court of Appeals concluded in
affirming the commission's narrow application of National Sand
and Old Dominion, " ..• contracts to perform services at
mines •.• subject [the independent contractor] to regulation under
the Mine Act." see Otis Elevator, 921 F.2d at 1291.
The respondents also rely on the fact that no coal
production occurred at the Madison Branch Mine site during the
decedent's last shift or during the shifts of any other security
personnel employed by Protective security Services. The
production status at the time an individual is exposed to a
hazard attributable to a statutory violation or a violation of a

1030

mandatory safety standard is not dispositive. The goal of the
Mine Act is to "prevent death and serious physical harm" to any
individual working at a mine site. 30 u.s.c. §§ 801, 802(9).
Thus, it is the employee's presence at the mine site, rather than
mine extraction activities, that provides the basis for Mine Act
jurisdiction.
Finally, Protective Security Services' reliance on Falcon
Coal Company. Inc. v. Clemons, 873 F.2d 916 (6th Cir. 1989), and
Frost v. Benefits Bd., No. 85-4034, 821 F.2d 649 (6th Cir.
June 26, 1987) (unpublished) is misplaced. These cases held that
a night watchman, and, a delivery man who transported lunches to
coal miners working underground, were not "miners" and,
therefore, not entitled to black lung benefits under the Black
Lung Benefits Act . 30 U.S.C.A. Section 802 (h) (2), (i) 402(d).
However, entitlement to black lung benefits is not at issue in
this proceeding.
In view of the above, I conclude that the security services
provided to Madison Branch Management provide an adequate basis
for concluding that protective Security Services is an "operator"
as defined by .s ection 3 (d) of the Mine Act. An owner-operator is
liable for the \ violative act of its contractor. Bulk
Transportation ·services, Inc., 13 FMSHRC 1354, 1359-60
(September 1991). In such instances, the Secretary has the
discretion to proceed against both the owner-operator and the
contractor. Id. Having concluded that there is a jurisdictional
basis for the citations issued to Protective Security Services,
the independent contractor in this matter, it follows that there
is a jurisdictional basis for the citations issued to Madison
Branch Management.
Although I have concluded the respondents are subject to the
Mine Act, I have not addressed the propriety of the citations in
issue. The substantive merits of these citations involve issues
of fact that must be resolved through the hearing process.
ORDER

Consequently, I conclude that there is a jurisdictional
basis for the citations in issue. Accordingly, the r ·e spondents'
Motions to Dismiss on jurisdictional grounds ARE DENIED.

1031

In view of my disposition of the jurisdictional issue, the
parties are advised that the consolidated hearinq in these
proceedings will be conducted in the vicinity of Beckley,
West Virginia, commencing at 9:00 a.m. on Tuesday,
April 12, 1994. The parties will be further advised of the
hearing location in Beckley.

·-----

~~--~>
~)

Jerold Feldman
Administrative Law Judge

Distribution:
Patrick L. DePace, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
James A. Walker, Esq., White & Browning Bldg., Suite 201, 201 1/2
Stratton Street, P.O. Box 358, Logan, WV 25601 (Certified Mail)
Mr. George L Mathis, Protective Security Service & Investment,
P.O. Box 1466, Logan, WV 25601 (Certified Mail)
Christopher B. Power, Esq., Robinson & McElwee, P.O. Box 1791,
Charleston, WV 25326 (Certified Mail)
Mr. Durwin Logan, Madison Branch Management, Inc., P.O. Box 250,
Mann, WV 25635 (Certified Mail)
Robert Stropp, Esq., UMWA, 900 15th St., N. W., Washington,
20005 (Certified Mail)
/11

1032

o.c.

FEDERAL K_ ....3 SAFETY AND HEALTH REVrn

.uKKISSION

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

MAR 2 5 19!M.
CONTEST PROCEEDINGS

THUNDER BASIN COAL COMPANY,
Contestant
v.

Docket No. WEST 94-238-R
Citation No . 3589040; 2/22/94

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

Docket No . WEST 94-239-R
Order No. 3589101; 2/22/94
Black Thunder Mine

ORDER DENYING TEMPORARY RELIEF

On February 22, 1994, contestant filed an application for
temporary relief from Order No. 3589101 which was issued earlier
the same day pursuant to section 104(b) of the Act. An expedited
hearing on the application was held in Falls Church, Virginia, on
March 17 , 1994. For the reasons stated below I deny the
temporary relief requested.
Background Facts
In September 1990, eight miners employed at contestant's
non-union mine near Wright, Wyoming, signed a form designating
Dallas Wolf and Robert Butero as their representatives under
section 103(f) and Part 40 of volume 30 of Code of Federal
Regulations. 1 Wolf and Butero are employees of the United Mine
Workers of America (UMWA) and not of Contestant. Dallas Wolf is
the principal UMWA organizer in the Powder River Basin. The
eight Thunder Basin employees listed themselves as alternate
miners' representatives .
Thunder Basin coal corporation refused to recognize the
validity of this designation. The primary reason for this
refusal is that contestant believes that the designation of Wolf
and Butero is an abuse of walkaround provisions of the Federal
Mine Safety and Health Act because it is motivated solely by a
desire to aid the UMWA in its effort to organize the mine. The
company contends that it thus infringes on its rights under the
National Labor Relations Act to exclude union organizers from its
1

The principal function of a miners' representative is to
accompany MSHA personnel during their inspections of operators'
worksites.

1033

property (Affidavit of Marshall B. Babson, Exhibit 3 to
Contestant's reply brief) . 2
In March, 1992, contestant obtained an injunction in the
United States District Court for the District of Wyoming
prohibiting MSHA from enforcing the Part 40 designation of the
UMwA employees3 • However, both the United States court of
Appeals for the Tenth Circuit and the United States Supreme Court
held that the District Court did not have jurisdiction to issue
the injunction. Thunder Basin coal Company v. Martin, 969 F.2d
970, 973 (10th Cir. 1992); Thunder Basin Coal Co. v. Reich, 62
U.S.L.W. at 4062 (U.S. Jan. 19, 1994) .
on January 21 , 1994, Thunder Basin's President,
J . A. Herickoff wrote MSHA District Manager William Holgate
inviting MSHA to issue a citation in order to achieve swift
resolution of the legal validity of the designation of the UMWA
employees. Contestant also stated that it expected MSHA to
specify an abatement time "sufficient for the parties to pursue
resolution of this important issue before the Commission and the
courts."
MSHA accommodated contestant in its request for a citation.
However, it declined · to set an abatement period which would delay
posting of the UMWA designation until Thunder Basin ' s challenge
to the validity to that designation was resolved before the
Commission and reviewing Federal courts. At 8:10 a.m., on
February 22, 1994, MSHA inspector James M. Beam issued Citation
No. 3589040 to contestant for failure to post the UMWA
designation on the bulletin board near the mine's bath house. He
set ah abatement period of 15 minutes {Citation No. 3589040,
blocks 2 and 18).
When 15 minutes elapsed, inspector Beam issued Order
No. 3589101 pursuant to section 104(b) of the Act .
Within hours
contestant filed an application for temporary relief with the
Commission and an application for an expedited hearing on its
application. Subsequently, MSHA informed contestant that it
intends to propose a $2,000 daily penalty for the company's
refusal to post the disputed designation (Oral argument Tr. 64).

2Thus

far Thunder Basin Coal has successfully resisted the
UMWA's persistent efforts to organize its mine.
In 1987, the
UMWA lost an election conducted pursuant to the National Labor
Relations Act at the Black Thunder Mine by a vote of 307 to 56.
3After

it received the designation of Wolf and Butero,
contestant received forms designating a number of its own
employees as MSHA walkaround representatives. These employee
designations have been recognized and posted by Thunder Basin.

1034

The Commission has no authority to grant the temporary relief
requested by Contestant
5

Section 101(b) (2) of the Federal Mine Safety and Health Act
provides:
·
An applicant may· file with the commission a written
request that the Commission grant temporary relief from
any modification or termination of any order or from
any order issued under section 104 together with a
detailed statement giving the reasons for granting such
relief. The Commission may grant such relief under
such conditions as it may prescribe, if(A) a hearing has been held in which all
parties were given an opportunity to be
heard;
(B) the applicant shows that there is
substantial likelihood that the findings of
the commission will be favorable to the
applicant; and
(C) such relief will not adversely affect the
health and safety of miners.
No temporary relief shall be qranted in the case of a
citation issued under subsection (a) or (f) of section

104 ••• (emphasis added).
Although contestant characterizes its application as a
request from relief from the section 104(b) order, it is in
reality a request for relief from the section 104(a) citation.
What contestant seeks is a Commission order prohibiting MSHA from
proposing daily penalties for its refusal to post the "UMWA"
miners' representative designation.
Although MSHA issued what
it terms a "no area affected" section 104(b) order, it did not
need to do so in order to propose daily penalties.
Section llO(b) of the Act, as amended, provides:
Any operator who fails to correct a violation
for which a citation has been issued under
section 104(a) within the period permitted
for its correction may be assessed a civil
penalty of not more than $5,000 for each day
during which such failure or violation
continues.
rhus, under the statutory scheme MSHA could propose daily
penalties for contestant's failure to abate Citation No. 3589040
as soon as the 15 minutes provided for abatement expired.
It did
..·

1035

not need to issue a section 104(b) order to do so4 • As the Act
specifically prohibits temporary relief from the citation, I have
no authority to grant contestant's application.
The overall scheme of the Act confirms the aforementioned
of statutory language. The provisions for temporary
relief appear to be directed to situations where MSHA has
prohibited operation of a mine, or portions thereof, pursuant to
a withdrawal order. Such an order has the potential of causing
immediate, certain, and unwarranted economic damage to the
operator. Where employees are not withdrawn by such an order, no
such danger exists . Although the legislative history of the Act
does not deal expansively with this issue, it does indicate that
temporary relief was not intended to prevent MSHA for goading an
operator into compliance with the threat of daily civil
penalties .
~eading

At page 623 of the legislative history, Senate Report 95-181
discusses the temporary relief provision:
While there is no provision for temporary or
interim relief from abatement requirements
generally, section 106(b) does authorize the
Commission under certain circumstances
designed to assure that the health and safety
of miners shall not be threatened, to grant
temporary relief from further abatements once
the initial abatement period has run and a
failure to abate closure order has been
issued under section 105(bl (emphasis added).
At page 618 of the legislative history the Senate Report
describes the orders for which temporary relief may be sought as
those which are issued in situations in which miners are
withdrawn from an area. There is nothing in the legislative
history that indicates that the Commission is empowered to
facilitate the operator's pre-emptive strike against daily
penalties proposed pursuant to section llO(b).
The harm to the operator in the instant case is that it
either posts the disputed UMWA designation or runs the risk that
it may be assessed daily penalties proposed by MSHA. The
statutory mechanism for dealing with such situations is for the
Commission to review the penalty assessment.
If the Commission concludes that the time allowed for
abatement was unreasonable, or that the underlying citation was
invalid, it will vacate the penalties proposed by MSHA. Even if
4Indeed,

the issuance of the section 104(b) order tends to
confuse the issues in this case.

1036

it finds that the citation is valid and the abatement period
appropriate, the commission is not bound by MSHA's penalty
proposal. Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1152
(7th Cir. 1984). The Act contemplates that an operator who
refuses to abate a citation within the time allotted by MSHA runs
the risk that it will be assessed the daily penalties set forth
in section llO(b) if MSHA's position is vindicated. The statute
does not contemplate any Commission relief for the operator in
this situation .
Assuming that the Commission has authority to grant temporary
relief in the instant case, contestant has not established that
it is entitled to such relief
Section 105(b) provides that temporary relief can be granted
if a hearing has been held, the applicant shows there is a
substantial likelihood that it will prevail before the
Commission, and the health and safety of miners will not be
adversely affected. The first condition has been satisf ied5
As to the third condition, I conclude that any compromise of
health and safety from granting temporary relief is purely
speculative. It may well be that participation in an MSHA
inspection by Mr . Wolf and/or Mr. Butero may enhance the safety
at contestant's mine, or have no affect. Contestant argues that
it is already a very safe operator, and the evidence it has
proffered supports that proposition. However, it is possible
that Mr. Butera, in particular, who is a safety and health
official of the UMWA with exposure to comparative operations,
would have insights in regard to safety and health conditions at
the Black Thunder Mine. Finally, contestant's assertion that
participation by the UMWA will compromise safety is equally
speculative.
The primary hurdle to granting contestant's request for
temporary relief is its inability to show that there is a
substantial likelihood that the findings of the Commission will
be favorable to it in light of the Commission's decision in KerrMcGee Coal Corporation, 15 FMSHRC 352 (March 1993), appeal
pending, D. c. cir . No. 93-1250). Contestant argues that it has
evidence not in the record in Kerr-McGee which should cause the
5several employees of contestant, who are sympathetic to its

position in this case, sought party status a few days before the
expedited hearing in this case . As the interests of these
employees are virtually identical to those of contestant, the
undersigned chose not to can'b el the hearing and so informed
counsel for the contestant and the Secretary of Labor (Tr. 5-6).
Indeed, to delay consideration contestant's application for
temporary relief would appear to be contrary to the wishes of
these employees.

1037

Commission to rule in its favor, Application for Temporary
Relief, p. 15, n. 15 and Attachment 2 to Exhibit c of the
Application.
The decision in Kerr-McGee indicates that the Commission was
tully aware that the designation of Wolf and Butero by Kerr-McGee
employees. was done in part, if not primarily, to advance the UMWA
effort to organize that mine. Indeed, the Commission affirmed
the administrative law judge's decision denying Kerr-McGee's
motion to reopen the record to introduce internal UMWA documents
which arguably revealed the organizational motive in the
walkaround representative designation.
The Commission affirmed the judge's finding that such
evidence was cumulative and ruled that error, if committed, was
harmless 15 FMSHRC at 357-8. In light of the Commission's
rulings on the internal union documents in Kerr-McGee, it is
impossible for the undersigned to conclude that the Commission
is likely to reach a different result in the instant case based
on the documents proffered in the Application for Temporary
Relief.
In short ~he black letter law on the issue involved in this
case is the Ker·r-McGee holding that designation of union
employees as walkaround representatives at a non-union mine which
they are trying to organize is not invalid per se. That decision
is controlling and leads me to conclude that contestant has not
established that it is likely to prevail on the merits.
Contestant argues also that it needs only to show that it
will prevail on the issue of whether the 15 minute abatement
period was unreasonable, not on the issue of whether the
underlying citation was valid. To the undersigned this is a
distinction without a difference. If the prevailing case law is
that the Part 40 designation of Wolf and Butero is valid, it is
not substantially likely that contestant will prevail on the
issue of the abatement period.
The company position is that MSHA must give it an
opportunity to overturn Kerr-McGee before requiring it to abate
the citation issued for failure to post the UMWA walkaround
designation. Such an argument is analogous to granting a stay of
the Commission's Kerr-McGee decision, which is prohibited by
section 106(c) of the Act. The fact that Kerr-McGee is now
legally required to comply with the Commission's decision in its
case indicates to the undersigned that it is not substantially
likely that Thunder Basin will prevail before the Commission on
the issue of whether the 15 minute abatement period was
reasonable. If the company is legally required to post the UMWA
designation, 15 minutes seems not to be an unreasonable amount of
time to accomplish this task.

1038

Contestant contends that an adverse ruling on this
application will cause it significant and irreparable harm. I
assume that recognition of the Wolf and Butero walkaround
designation ·w ill be advantageous to the UMWA organizational
effort to some extent. If that were not the case contestant
vould not be so adamant in refusing to post the designation. on
the other hand, it is difficult to believe that the recognition
of the walkaround designation will determine the outcome of the
UMWA organizational drive.
However, I conclude that whatever advantage the UMWA may
obtain is irrelevant to the disposition of this application.
Moreover, whatever advantage the UMW gains will be at least
counterbalanced by the negative impact on the organizational
campaign when contestant takes down the designation form if it
ultimately prevails in its challenge to its validity.
CONCLUSION
For the reasons stated herein, I conclude that I have no
authority to grant the relief requested by contestant. Assuming
that I have such authority, I conclude that contestant has not
satisfied the. criteria set forth in section 105(b) (2) of the Act.

~~

Administrative Law Judge
(703) 756-6210

1039

Distribution:
Thomas c. Means, Esq., Timothy M. Biddle, Esq., Crowell & Moring,
1001 Pennsylvania Ave., NW, Washington, D.c. 20004 (Certified
Mail)
Margar•tMiller, Esq., Office of the Solicitor, u. s. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Colleen Geraghty , Esq . , Office of the Solicitor, u. s . Department
of Labor , 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Thomas F. Linn, Esq . , Atlantic Richfield Company,
555 17th Street, 20th Floor, Denver, co 80202 (Certified Mail)
Charles W. Newcom, Esq . , Sherman & Howard, 633 17th Street ,
Denver, co 80202 (Certified Mail)
Mr. Ray Mcintosh , P. o. Box 414, Wright, WY
Mail)

82732 (Certified

Mr. Roy Earle Knutson, Jr., 601 N. Plains Drive, Gillette, WY
82716 (Certified Mail)

Mr. Everett Kraft, P. O. Box 127, Upton, WY 82730 (Certified
Mail)
/jf

10 4 Q

• tJ .S . GOV'ElUIMENT PRINTING OFJ'ICE: 1994-301-878i l 3378