MAY

1990

COMMISSION DECISIONS
05-02-90
05-02-90
05-21-90
05-22-90
05-22-90
05-23-90
05-23-90
05-24-90

Cyprus Empire Corporation
Arnold Sharp v. Big Elk Creek Coal Co.
France Stone Company
Roger L. Stillion v. Quarto Mining Company
Greenwich Collieries, Div. of Pennsylvania Mines
Mid-Continent Resources
Mountain Parkway Stone, Inc.
Utah Power & Light Company, Mining Division

WEST 88-250-R
KENT 89-147-D
LAKE 89-92-M
LAKE 88-91-D
PENN 85-188-R
WEST 87-88
KENT 89-27-M
WEST 89-161-R

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

PENN 89-222
WEVA 89-274
WEST 89-317-M
WEST 88-191-R
CENT 90-62-DM
KENT 90-5-M
LAKE 89-53-R
CENT 89-103-M
SE
89-152-M
WEVA 88-318
KENT 90-29
WEST 88-275-M
CENT 90-104-M
PENN 89-73-M
CENT 90-1-DM
PENN 89-139
WEST 88-184-M
SE
89-103-M
SE
90-63-DM

Pg. 975
Pg. 987
Pg. 994
Pg. 1001
Pg. 1010
Pg. 1011
Pg. 1014
Pg. 1022
Pg. 1026
Pg. 1035
Pg. 1038
Pg. 1044
Pg. 1054
Pg. 1061
Pg. 1078
Pg. 1080
Pg. 1093
Pg. 1115
Pg. 1127

WEVA 89-234-R
KENT 89-27-M

Pg. 1129
Pg. 1148

KENT 90-113-D
SE
90-2-M
WEST 89-427
SE
90-1
KENT 89-147-D

Pg.
Pg.
Pg.
Pg.
Pg.

911
926
930
932
940
949
960
965

ADMINISTRATIVE LAW JUDGE DECISIONS
05-02-90
05-03-90
05-04-90
05-07-90
05-08-90
05-08-90
05-10-90
05-15-90
05-15-90
05-16-9.0
05-17-90
05-17-90
05-22-9.0
05-22-90
05-23-90
05-23-90
05-23-90
05-24-90
05-24-90
05-24-90
05-30-90

Beth Energy Mines, Inc.
Ten-A-Coal Company
California Lighweight Pumice, Inc.
Beaver Creek Coal Company
Thomas F. Hefner, Jr. v. Texas Lehigh Cement
Hinkle Contracting Corporation
Central Ohio Coal Company
Walker Stone Company, Inc.
Howard Sand Company
Bill Pack Land Corporation/PCR Joint Venture
Bennett Trucking Co./B&S Trucking
Sanger Rock & Sand
Vic's Sand & Gravel Company
Lebanon Rock Incorporated
Sec. Labor for Bobby Coulter v. Cantu Materials
R S & W Coal Company, Inc.
Walsenburg Sand & Gravel Company
Cantera Hipodromo, Incorporated
Sec. Labor for Alonzo Walker v. Dravo Basic
Materials Company, Inc.
Consolidation Coal Company
Mountain Parkway Stone, Inc.

ADMINISTRATIVE LAW JUDGE ORDERS
05-04-90
05-09-90
05'-11-90
05 .... 21-90
05-31-90

Thomas Mcintosh v. Flaget Fuels, Inc.
S.L. Peters Construction
Otis Elevator Company
Faith Coal Company
Arnold Sharp v. Big Elk Creek Coal Co.

1151
1154
1155
1159
1160

MAY 1990
Review was granted in the following cases during the month of May:
Amos Hicks v. Cobra Mining, Inc., et al., Docket No. VA 89-72-D.
Weisberger, Harch 22, 1990)

(Judge

Mettiki Coal Company v. Secretary of Labor, MSHA, Docket No. YOEK 89-19-R,
YORK 89-20-R. (Judge Fauver, April 9, 1990}
Secretary of Labor, MSHA v. France Stone Company, Docket No. LAKE 89-92-M.
(Judge Broderick, April 18, 1990 - Motion to Amend Settlement)
BethEnergy Mines, Inc. v. Secretary of Labor, MSHA, Docket No; PENN 89-277-R,
PENN 89-278-R. (Judge Fauver, April 19, 1990)
Secretary of Labor, MSHA v. Bulk Transportation Services, Docket No. PENN 89-143.
(Judge Koutras, April 20, 1990)
Secretary of Labor, MSHA v. Lanham Coal Company, Docket No. KENT 89-186.
Broderick, April 30, 1990)
There were no cases filed in which review was denied.

(Judge

COM.MISSION DECISIONS

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

May 2, 1990

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

Docket Nos. WEST 88-250-R
WEST 88-251-R
WEST 88-331

v •.

CYPRUS EMPIRE CORPORATION

BEFORE:

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

DECISION

BY:

Ford, Chairman; Doyle, Lastowka and Nelson, Commissioners

This proceeding arising under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seg. (1982)("Mine Act•i or "Act"),
involves a citation and imminent danger withdrawal order issued by the
Department of Labor's Mine Safety and Health Administration ("MSHA") to
Cyprus Empire Corporation ("Cyprus"). The citation, as modified,
alleges a violation of 30 C.F.R. § 75.202(a), requiring that the roof of
areas where persons work or travel be supported or otherwise
controlled. 1/ The imminent danger order, issued pursuant to section
107(a) of th~ Mine Act, arose out of the same conditions as the
citation. ~/ Also at issue is whether the Secretary of Labor's

lf

30 C.F.R. § 75.202(a) provides as follows:
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.

11

Section 107(a) of the Act provides:
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

911

prehearing modification of the citation and inuninent danger order was
proper. Conunission Administrative Law Judge John J. Morris permitted
the modification, concluded that Cyprus violated section 75.202(a),
affirmed the inuninent danger order, and assessed a civil penalty of
$200. 11 FMSHRC 368 (March 1989)(ALJ). For the reasons that follow, we
affirm the judge's allowance of the modification and his affirmance of
the inuninent danger order. We reverse the judge's finding of a
·
violation of section 75.202(a), however, and we vacate the citation and
civil penalty.
I.

Cyprus owns and operates the Eagle No. 5 Mine, an underground coal
mine located in Craig, Utah. During the evening shift on Friday,
May 20, 1988, Charles Moss, section foreman, observed poor roof
conditions in the tailgate entry of the 16 East longwall section. The
area of poor roof was inunediately adjacent to Shield #126, the last
shield on the longwall face. A walkway running parallel to the face and
passing under the longwall's shields, including Shield #126, exited into
the area of bad roof in the tailgate entry.
Moss contacted the shift foreman, Robert Pobirk, and they examined
the roof. Pobirk directed Moss to string yellow "danger tape" across
the end of Shield #126 to block access from the face to the area of bad
roof. Pobirk also had yellow danger tape placed across the tailgate
entry outby the area of poor roof conditions to block access from that
direction.
On the next shift, on May 21, 1988, miners installed additional
support in the "dangered off" area between the cribs that were already
present. They placed two cribs to prevent the poor roof conditions from
spreading further into the tailgate entry and a third crib to prevent
rib sloughage. They also installed two roof jacks and two timbers.
According to Pobirk, additional support was not placed in the area
closest to Shield #126 because such support would have served no purpose
and would have exposed the miners installing such support to the hazard
of a roof fall. Tr. 91-92, 110-11.
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)] of this title, to be withdrawn from, and to
be prohibited from entering, such area until an
authorized representative of the Secretary
determines that such inuninent danger and the
conditions or practices which caused such inuninent
danger no longer exist. The issuance of an order
under this subsection shall not preclude the
issuance of a citation under section [104] of this
title or the proposing of a penalty under section
[110] of this title.
30 U.S.C. § 817(a).

912

On the evening shift on Tuesday, May 24, 1988, MSHA Inspector
Phillip Gibson observed the area of poor roof adjacent to Shield #126.
The previously strung yellow danger tape was still in place prohibiting
travel from the longwall walkway into the area of poor roof. The danger
tape in the tailgate entry was also still in place, prohibiting travel
from that direction. Inspector Gibson measured the area of poor roof
adjacent to Shield fl 126 as being 6 feet by 6 feet 10 inches. The
closest support cribs were about three feet from Shield #126. Joint
Exhibit 1 shows the adversely affected area and is attached to this
decision.
As a result of his observations, Gibson issued to Cyprus a section
104(a) citation, 30 U.S.C. § 814(a), alleging a violation of 30 C.F.R.
§ 75.202(b). }/ The citation states:
Loose, broken roof was present in the tailgate
entry of the 16 East longwall section. The coal
roof between two previously erected wooden cribs was
broken and some roof had fallen to the mine floor.
Two previously installed resin grouted rods with
bearing plates were protruding downward about 16
inches. The roof coal had fallen from around the
rods and the bearing plates. The affected area was
6 feet in length and 6 feet 10 inches in width.
This condition was one of the factors that
contributed to the issuance of [the imminent danger
order]; therefore, no abatement time was set.
Gibson also designated the violation to be of a significant and
substantial nature.
At the same time, Gibson issued a section 107(a) imminent danger
withdrawal order based on the same conditions. The order states as
follows:
Condition or Practice
Loose, broken roof was present in the tailgate entry
of the 16 East longwall working section. The loose,
broken roof (coal roof) was 6 feet in length and 6
feet 10 inches in width. The affected area was
between two wooden cribs installed within 3 feet of
the tailgate face shield (No. 126). A violation of
75.202(b). The operator had already dangered off
the tailgate entry at the longwall face.

*
}/

*

*

30 C.F.R. § 75.202(b) provides:
No person shall work or travel under unsupported
roof unless in accordance with this subpart.

913

Area or Equipment
The tailgate entry of the 16 East longwall section
beginning at No. 126 shield and extending outby
about 10 feet.
When Inspector Gibson arrived on the surface, he called his
supervisor, Clarence Daniels. They agreed that to abate the citation
and order Cyprus would be permitted to continue mining in order to pass
by the dangerous area. From the time the bad roof conditions were first
encountered on May 20, the longwall face had advanced 16~ feet, and
about 8 to 10 feet of further work would carry mining operations
entirely past the area of poor roof conditions. Gibson modified the
imminent danger order about two hours after it had been issued to state
as follows:
[The] Imminent Danger Order •.• is hereby modified
to allow mining to resume in order to mine pas[t]
the affected area of the tailgate entry of the 16
East longwall section. The roof had sat so
precariously on the wooden cribs in the tailgate
entry, that removing them to install additional roof
supports, posed a greater hazard.
Gibson imposed no special conditions or restrictions on the continued
mining.
When Inspector Gibson returned to the mine the next evening, May
25, 1988, mining had progressed beyond the poor roof to a point where
wooden cribs adequately contained the roof over the travelway into the
tailgate entry. Therefore, he terminated the citation and order.
Cyprus contested both the citation and withdrawal order, and after
the Secretary proposed a civil penalty for the alleged violation the
matters were consolidated for hearing before Judge Morris. On November
18, 1988, three days before the hearing, the inspector modified the
citation to allege a violation of section 75.202(a), rather than section
75.202(b). He similarly modified the withdrawal order to reflect the
modification of the citation. Counsel for Cyprus was notified of the
amendment on the same date, and the modifications were served on Cyprus
on the day of the hearing, November 21, 1988.
At the hearing, Cyprus' counsel did not object to the modifi-·
cations. Instead, he acknowledged that the Secretary's counsel had
notified him approximately one month before the hearing that the
citation would likely be modified to allege a violation of section
75.202(a). He also acknowledged that Cyprus was not prejudiced by the
amendment. Tr. 13. The judge and the parties proceeded with the
hearing on the basis of the allegation of a section 75.202(a) violation.
In its posthearing brief, Cyprus nevertheless raised an objection to the
modification of the citation and order.

914

In his decision, the administrative law judge rejected Cyprus'
belated objection to the modification of the citation and order. The
judge emphasized that Cyprus had conceded that the modifications had not
resulted in prejudice. The judge also noted that amendment of pleadings
is largely committed to the discretion of the trial judge pursuant to
the standards contained in Fed. R. Civ. P. lS(a). 11 FMSHRC at 379.
Accordingly, the judge approved the modification of the citation and
order to allege a violation of .section 75.202(a) instead of 75.202(b).
Id.
The judge also affirmed the imminent danger order. He rejected
Cyprus' argument that the order was invalid because entry into the cited
area had been prohibited by the danger tape. The judge explained that
the "purpose of a 107(a) order is not only to cause the withdrawal of
miners, but to insure that they remain out of the affected area until
the condition is corrected." 11 FMSHRC at 377. The judge credited the
MSHA inspector's opinion that the roof condition was imminently
dangerous to any miner exposed to it.
11 FMSHRC at 376. The judge
noted that, although in their testimony Cyprus' witnesses did not fully
embrace the inspector's opinion concerning the imminent danger, their
actions in supporting the roof and dangering off the area did.
11 FMSHRC at 376. He further stated that, although no miner had entered
the dangerous area while it was dangered off, "actual exposure [of] a
miner to a hazardous condition is not required to find that [an] •..
imminent danger exists." 11 FMSHRC at 377.
Finally, in concluding that Cyprus had violated section 75.202(a),
the judge agreed with the Secretary's view that, as an acceptable
alternative to roof "support," the standard's reference to a roof's
being "otherwise controlled" refers to some form of "physical restraint
of the defective area." 11 FMSHRC at 378-79. The judge rejected
Cyprus' view that its installation of yellow danger tape constituted a
"control" within the meaning of section 75.202(a). 11 FMSHRC at 379.
The judge stated:
In considering these issues I conclude that
compliance with § 75.202(a) can be accomplished in
several ways. Initially, as the regulation
provides, the area can be supported. In the
alternative, the area may be barred down. The
alternative of barring down a defective area is
contained in the statute and it has been a control
historically used. If support and barring down are
not effective (the situation here) then the
regulation requires effective control. I agree with
the Secretary's view that some form of physical
restraint of the defective area is required.
Id.
The judge did not specifically address the question of whether the
cited area was a place "where persons work or travel" within the meaning
of section 75.202(a). However, in his discussion of the imminent danger
order, the judge found that "under normal circumstances, the tailgate

915

end of the longwall would allow a miner to come directly off of the
longwall into the return.entry" and that "there were miners in the
vicinity of the defective roof." 11 FMSHRC at 377. He also found that
"no miner walked under the area of bad roof and no one went through the
area while it was dangered off •••• " Id.
II.

Cyprus contends that the judge erred in permitting the modification of the citation and imminent danger order. Cyprus submits that
the Secretary failed to explain adequately the delay in amending the
documents and that the delay was unreasonable.
Although the Commission's procedural rules do not address
amendment of pleadings, the Commission may properly look for guidance to
Fed. R. Civ. P. 15(a) ("Rule 15(a)"). 4/ See Commission Procedural Rule
l(b), 29 C.F.R. § 2700.l(b). Under Rule 15(a), the trial court
possesses considerable discretion in resolving motions seeking leave to
amend pleadings. Such leave is to be freely granted in the interest of
justice, and a court's determinations in this regard will not be
overturned except for abuse of discretion. ~, ~· 3 J. Moore,
Moore's Federal Practice Par. 15.08 (2d ed. 1989)("Moore's"). See El
Paso Rock Quarries, Inc., 3 FMSHRC 35, 38 (January 1981). Among th;permissible purposes of such amendments are changes in the nature of the
plaintiff's claims or legal theories. !:..&.:..• Moore's, supra, Par.
15.08[3]. Delay alone, regardless of length, does not bar a proposed
amendment if the other party is not prejudiced. Moore's, Par. 15.08[4].
Here, the Secretary, through her modifications, sought only to .allege
that a different, though substantively related, subsection of the same
standard applied to the cited conditions.
Cyprus conceded at the hearing that it was not prejudiced PY the
modifications, and proceeded with the hearing without protest. If
Cyprus was aggrieved by the amendments, it should have objected at the
hearing before the judge; its objection in the post-hearing brief was
not timely. Cf. A.H. Smith, 5 FMSHRC 13, 17 n. 5 (January 1983).
Therefore, we~old that the judge did not abuse his discretion in
allowing the modifications.
Cyprus argues that the judge erred in concluding that it violated
~/

Rule 15(a) states in part:
Amendments. A party may amend his pleading once
as a matter of course at any time before a
responsive pleading is served or, if the pleading is
one to which no responsive pleading is permitted and
the action has not been placed upon the trial
calendar, he may so amend it at any time within 20
days after it is served. Otherwise a party may
amend his pleading only by leave of court or by
written consent of the adverse party; and leave
shall be freely given when justice so requires. • ••

916

section 75.202(a) for two reasons: (1) under the cited standard the area
at issue· was·· not an area "where persons work or travel;" and
(2) "dangering-off" the area is an acceptable form of "control" of the
roof. Because we find the first issue dispositive, we need not reach
the second.
To establish a violation of 30 C.F.R. § 75.202(a), the Secretary
was required by the terms of the standard to prove that the cited area
was an area "where persons work or travel." As discussed above, the
judge found that "under normal circumstances, the tailgate end of the
longwall would allow a miner to come directly off the longwall into the
return entry." 11 FMSHRC 377 (emphasis added). What the judge did not
consider, however, is whether "normal circumstances" are presented here.
The record in this case establishes that as soon as Cyprus
encountered the poor roof conditions, it dangered-off the area to
prevent miners from entering the area of adverse roof conditions. In
doing so, Cyprus acted in accordance with accepted safe-mining
practice. 5/ There is no evidence that at any time during the existence
of the dangerous roof conditions, other than during the attempt to
install additional roof support, any miner worked or traveled in the
cited area. Indeed, the Secretary has conceded as much. 11 FMSHRC at
377; Tr. 11, 44, 49, 68-69. See also Oral Arg. Tr. 33. The Secretary
also did not prove that, while the area was dangered-off, the job duties
of any miners required them to enter the affected area. See, ~, Oral
Arg. Tr. 9-10, 32-34. Thus, the record establishes that the operator
acted appropriately in dangering-off the area of bad roof and that no
miners worked, traveled or were required to enter into the area at
issue.
Importantly, we note that in the circumstances presented, the
.agreed with Cyprus that installation of additional roof
support was neither necessary nor desirable. The Secretary also agreed
with Cyprus that the safest and most appropriate course to follow in
eliminating the danger was to allow continuation of the normal longwall
Sec~etary

~/

For example, section 303(d)(l) of the Mine Act provides:
If [a mine operator] finds a condition which
constitutes a violation of a mandatory health or
safety standard or any condition which is hazardous
to persons who may enter or be in such area, he
shall indicate such hazardous place by posting a
"DANGER" sign conspicuously at all points which
persons entering such hazardous place would be
required to pass •..• No person, other than an
authorized representative of the Secretary or a
State mine inspector or persons authorized by the
operator to enter such place for the purpose of
eliminating the hazardous condition therein, shall
enter such place while such sign is so posted.

30 U.S.C. § 863(d)(l).

(emphasis added).

917

mining process so as to mine past the problem area. Thus, the remedial
action required by the Secretary here was nothing more than what Cyprus
itself had determined was necessary in order to prevent miners from
being exposed to the hazard presented: prohibiting access into the
tailgate and continuing the normal mining process until mining
progressed beyond the dangerous area.
In sum, we conclude that a violation of section 75.202(a) was not
established because, under the circumstances of this case, the area of
bad roof at issue was not an area where persons worked or traveled.
Accordingly, the judge's finding of a violation is reversed, and the
citation and civil penalty are vacated.
Finally, Cyprus argues that the judge erred in affirming the
imminent danger withdrawal order. Cyprus argues that no persons were
exposed to the hazardous roof conditions since it prohibited access to
the area and that the nature of the cited roof conditions could not
reasonably have been expected to cause death or serious harm before they
were abated.
Preliminarily, we note that an imminent danger order need not be
based upon a violation of a mandatory standard in order to be valid.
See S. Rep. No. 461, 95th Cong., 1st Sess. 39 (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 1317 (1978)("Legis. Hist."); Freeman Coal Mining Co., 1 IBMA
197, 207-08 (1973), aff'd, Freeman Coal Mining Co. v. IBMA, 504 F.2d 741
(7th Cir. 1974). Accordingly, despite our vacation of the citation
alleging a violation of section 75.202(a), the question of the validity
of the imminent danger order remains.
The Mine Act defines an imminent danger 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). This definition is
unchanged from the definition contained in the Federal Coal Mine Health
and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977)(the
"1969 Coal Act"). The Senate report on.the Mine Act explains that the
Sec·retary' s authority to issue imminent danger orders "should be
construed expansively by inspectors and the Commission." S. Rep. No.
181, 95th Cong., 1st Sess. 38 (1977), reprinted in Legis. Hist. Mine Act
626.
In discussing the concept of imminent danger, we recently stated:
In analyzing [the] definition [of imminent
danger], the U.S. Courts of Appeals have eschewed a
narrow construction and have refused to limit the
concept of imminent danger to hazards that pose an
immediate danger. See, ~· Freeman Coal Mining
Co. v. Interior Bd. of Mine Op. App., 504 F.2d 741
(7th Cir. 1974). Also, the Fourth Circuit has
rejected the notion that a danger is imminent only
if there is a reasonable likelihood that it will

918

result in an injury before it can be abated.
Eastern Associated Coal Corp. v. Interior Bd. of
Mine Op. App., 491 F.2d 277, 278 (4th.Cir. 1974).
The court adopted the position of the Secretary that
"an imminent danger exists when the condition or
practice observed could reasonably be expected to
cause death or serious physical harm to a miner if
normal mining operations were permitted to proceed
in the area before the dangerous condition is
eliminated." 491 F.2d at 278 (emphasis in
original). The Seventh Circuit adopted this
reasoning in Old Ben Coal Corp. v. Interior Bd. of
Mine Op. App., 523 F.2d 25, 33 (7th Cir. 1975).
Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989).
The Seventh Circuit has further recognized the importance of the
inspector's judgment in issuing an imminent danger order:
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; Rochester & Pittsburgh, 11 FMSHRC at
2164.
We disagree with Cyprus that because it had prohibited access to
the hazardous area, the Secretary's imminent danger order was invalid.
Under section 107(a) of the Act, the Secretary is responsible not only
for determining the area of the mine affected by the danger and removing
miners from such area but also determining when miners may safely reenter the affected area because the conditions or practices that caused
the danger no longer exist. We cannot conclude that the inspector
abused his discretion in issuing an order prohibiting re-entry into the
area until the hazard was eliminated. £/

£/

Under the 1969 Coal Act, the Department of Interior's Board of
Mine Operations Appeal ("Board") addressed the legal effects of an
operator's voluntary withdrawal of miners upon the validity of imminent
danger withdrawal orders. Clinchfield Coal Co., 1 IBMA 33 (1971); The
Valley Camp Coal Co., 1 IBMA 243 (1972). In these decisions, the Board
emphasized that an imminent danger withdrawal order is more extensive
than the mere withdrawal of miners; it also confers jurisdiction to
prohibit re-entry until it is determined that the imminent danger no
longer exists. The Board accordingly held that the issuance of the
withdrawal orders involved in those proceedings was proper even though
the operator had voluntarily withdrawn the miners from the mine before
the issuance of the orders. Clinchfield, supra, 1 IBMA at 41; Valley

919

The hazards of roof falls are well known. See, ~, UMWA v.
Dole, 870 F-.2d 662, 664 (D.C. Cir. 1989)(citing the preamble to the
promulgation of MSHA'~ ~urrent r9Qf SUP,port standards, 53 Fed. Reg. 2354
(January 27, 1988)). Here, Inspects>r 'tabson found that the roof was
slanted downward, broken, and fractured. Tr. 30, 31-32. He also found
pieces of roof about one foot wide ~d two or three feet in length on
the floor. Tr. 30, 44~ ffe found twp 'roof bolts with bearing plates
about 16 inches below the roof line. Tr. 36. He believed that the roof
looked so unstable that it ~pµld fall at any time, and that if it did
fall, it could cause seriou~ physical harm or death. Tr. 31. Cyprus'
witnesses also acknowledged that the roof conditions in the cited area
were so bad that it was too dangerous to attempt to resupport the area.
Tr. 96, 99, 111, 125. Cyprus.' sect~on foreman Moss testified that
11
[t]here were some huge cracks the cribs squeezed together" and that the
roof "looked realiy heavy. •I Tr. 109.
Thus, we conclude tpat substantial evi~ence supports the judge's
affirmance of the order. The inspector did not abuse his discretion in
issuing the order to control re-entry into an area of bad roof.

Camp, supra, 1 IBMA at 248.

920

III.

Accordingly, we affirm the judge's action in permitting the
Secretary to modify the citation and order, we reverse the judge's
finding that Cyprus violated section 75.202(a), we vacate the citation
and civil penalty assessed for the violation~ and we affirm the imminent
danger withdrawal order.

~

~cl~

Jyce:DOile, CommiSSiOr

L. Clair Nelson, Commissioner

921

SHIELD

# 1 26

Note: Markings by Cyprus'
sounsel at the hearing are
not shown.

SHIELD #125

SHIELD #124

w ..
u
<(
LL..

~

Cr;bs lnd;coted On Inspector's
Drow;ng

D

\./olk 'vloy

®

Res;n Roof Bolts

~mm

Pon Une

~

Res;n Roof Bolts lnd;coted On
Inspector's Drow;ng

CJ)

Roof Jock

•

T;Mber

Commissioner Backley concurring in part and dissenting in part:
I respectfully dissent from that part of the majority decision holding
that no violation of 30 C.F.R. 75.202(a) occurred.
There is no factual dispute regarding this issue. The cited roof was in a
highly dangerous condition. Indeed today we all conclude that the roof
condition constituted an imminent danger.
The gravity of the situation was
such that MSHA agreed with the operator's determination that the risk involved
in any remedial effort to .support the roof was unacceptable. The safer course
of action was to danger-off the area and mine beyond the dangerous area. This
the operator did.
Indeed, the record indicates that no miners ventured past
the yellow tape used by the operator to danger-off the subject area.
In evaluating the legal effect of the foregoing, the majority has
concluded that no violation occurred " .•• because, under the circumstances of
this case, the area of bad roof at issue was not an area where persons worked
or traveled." Slip op. at 8.
I cannot agree with this cramped construction of the cited regulation. A
reasonable reading of the majority's opinion would lead one to conclude that it
is now possible to immunize an area of the mine from MSHA enforcement if the
area is successfully dangered-off.
Whether or not the majority intends to
convey that message is beside the point. In my op1n1on such a conclusion is
wrong and dangerously contrary to Congressional intent.
I have carefully reviewed the record in this matter and find the
Secretary's arguments on this issue to be compelling. The operator's action in
dangering-off the area was not only " ••• in accordance with accepted safe-mining
practice", as determined by the majority, Slip op. at 7, but was in fact
mandatory.
Indeed the operator's obligation under the law goes beyond merely
dangering-off the hazardous area. The roof must be supported or controlled. In
this case the cited roof was neither supported nor controlled as required by
the regulation.
The imminently dangerous condition was ultimately abated by
mining past the cited area.
The majority, however. does not directly reach the issue of whether the
roof was controlled. The majority has determined that the Secretary failed to
prove that this was an area where persons worked or traveled.
In so
concluding, the majority has apparently rejected the well-reasoned arg\llllents to
the contrary urged by the Secretary. Specifically, the Secretary argues that
ventilation and on-shift examinations required the presence of miners in the
cited area.
The Secretary also lists other necessary maintenance functions
pertaining to the. roof,
water pump and water lines which would ordinarily
cause miners to be in the cited area. Most significantly, the Secretary argues
that under the requirements of 30 C.F.R. 75.215(a) the operator is required to

923

maintain a safe travelway
out of the section through the subject tailgate
side
the longwall. In response to these· arguments, Cyprus concedes that
although the preshift and onshift examinations did not require miner exposure
to the cited area, the weekly ventilation examination required under 30 C.F.R.
75.305 was not a factor in this case because the subject condition existed for
approximately five days. Oral arg. at 9-10. We are left with the implication
that had the condition existed beyond a week's time, compliance with the
examination requirement would have resulted in miner exposure to the cited
roof.
In response to the Secretary's concerns regarding necessary maintenance
functions which would ordinarily cause miners to work under the cited roof,
Cyprus
admitted that if the cited area had not been dangered-off the
installation of supplemental roof support and the maintenance of pumps "would
put them into this particular area." Oral arg. 11-12.
Finally and most significantly, in responding to the Secretary's assertion
that because 30 C.F.R. 75.215(a) requires that the tailgate side of the
longwall be maintained as a safe travelway out of the section Cyprus cannot
simply eliminate the subject tailgate entry as a place where persons work or
travel, Cyprus argues that the headgate could be used as an escape route, or
as a last resort, the subject tailgate could have been used since it was not
physically blocked. Oral arg. at 8.
In consideration of the foregoing, it is clear that the subject tailgate
was "indisputably, normally an area where persons work or travel."
Sec. brief
at 18, Oral arg. at
33.
Accordingly, I
conclude that the regulatory
threshold "where persons work or travel" has been met in this case. To do
otherwise, as the majority has reasoned, risks the dangerous misapprehension
that compliance can be achieved with tape and board.
In
reaching
its
conclusion of no violation, the majority places
significant importance upon the fact that" •.• the remedial action required by
the Secretary
was nothing more than what Cyprus itself had determined was
necessary in order to prevent miners from being exposed to the hazard
presented ... "
Slip op. at 7-8.
I share that concern. I also agree that
Cyprus did not fail to take remedial action. This concern however is not
relevant to the issue of whether the regulation was violated. The regulation
contains no such exception.
The roof where persons work or travel shall be
supported or otherwise controlled. The fact that MSHA and Cyprus agreed that
the dangerous roof was best left undisturbed~ does not in any way diminish or
alter the fact that the subject roof, located as it was within 36 inches of the
tailgate
shield 126, was in violation of 30 C.F.R. 75.202(a). The manner in
which compliance is achieved is not an element relating to the determination of
whether
a
violation
occurred.
It is, however, expressly relevant in
considering the appropriate amount of civil penalty to be assessed. 30 U.S.C.
Section 820(i).

924

Accordingly, I have concluded that the subject area was clearly a place
where persons ·work or travel and that the cited roof was not supported or
controlled and that therefore a violation of 30 C.F.R. 75.202(a) occurred.

Distribution
R. Henry Moore, Esq.
Buchanan Ingersoll
58th Floor
600 Grant Street
Pittsburgh, Pennsylvania

15219

Carl C. Charneski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
280 Colonnade Center
1244 Speer Boulevard
Denver, Colorado 80204

925

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

May 2, 1990

ARNOLD SHARP
Docket No. KENT 89-147~D

v.
BIG ELK CREEK COAL COMPANY

BEFORE:

Ford, Chairman; Hackley, Doyle, Lastowka, Nelson,
Commissioners

DECISION
BY THE COMMISSION:
In this section 10S(c)(3) discrimination proceeding arising under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. section 801 et
seq. (1982), the Commission granted Arnold Sharp's petition seeking
interlocutory review of an order of Administrativ~ Law Judge Gary Melick
issued February 16, 1990.
The subject order was issued in response to a letter, dated
February 5, 1990, from Sharp to the judge. Sharp, who is appearing pro
se, had requested the judge remove himself from the case because he had
issued orders staying the proceedings over Sharp's objections. In the
letter, Sharp expressed concern for a fair hearing and sought
dissolution of the existing stay order, renewing his demand for a prompt
hearing.
In his order denying Sharp's request that the stay be dissolved
the judge stated:
••• This case has indeed twice been stayed pending
final disposition of criminal perjury charges
against an alleged essential witness in this
proceeding, Jim Meese. The Complainant himself has
indeed maintained and pursued those charges. The
outcome of such perjury charges could have a
critical impact on the instant case and, of course,
if such charges are substantiated in such criminal
proceedings could indeed very well benefit the
Complainant's position in this case.
February 16, i990 Order at 2.

926

Thereafter Sharp filed the petition for interlocutory review which
was granted.
The record developed to date indicates that, subsequent to his
February 28, 1989 discharge, Sharp appeared and testified before a
Commonwealth of Kentucky Department of Employment Services referee in an
effort to secure unemployment compensation. Respondent's Administrative
Director, Jim Meese, also testified at this hearing. Because Sharp
believed Meese's testimony at that hearing to be false, he caused a
criminal complaint and arrest warrant to be issued against Meese.
Accordingly, on September 13, 1989, Respondent moved for a postponement
of the instant action, asserting that Meese, the principal and likely
only witness for respondent in the Mine Act discrimination proceeding
pending before the administrative law judge, intended to assert his
Fifth Amendment privilege against self-incrimination "prevent[ing] him
from testifying further as to the matters surrounding the criminal case
and any collateral civil matter." Motion for Postponement at 2.
Sharp filed his opposition to the motion for postponement arguing
that the criminal matter has no bearing upon the discrimination matter.
Sharp requested that the then scheduled hearing before the
administrative law judge go forward.
The respondent filed a reply asserting:
•.• The subject matter of the unemployment hearing
factually mirrors the instant proceeding. Should
Mr. Meese testify in the hearing scheduled in this
discrimination proceeding before the Federal Mine
Safety and Health Review Commission relative to the
facts surrounding Complainant's discharge, he would
waive his Fifth Amendment privilege against selfincrimination. In Re: Atterbury, 316 F.2d 106, 109
(6th Cir. 1963); Anderson v. Commonwealth, Ky. App.,
554 s.w. 2d 882, 884 (1977).

On September 20, 1989, the judge issued an Order of Continuance
and Stay Order:
I find upon consideration of the circumstances that
the Motion for Continuance is well-founded and that
it would be in the best interests of this litigation
to grant a brief continuance and stay in these
proceedings pending disposition of the noted
criminal proceedings. This is particularly true in
this case since the criminal charges involve a claim
that a witness apparently essential to this case
gave a false statement in a related proceeding and
that criminal case is already scheduled for trial in
the near future.
Order at 3.
Thereafter, on January 5, 1990, the criminal charge against Meese

927

was dismissed. However, on January 22, 1990, the dismissal was appealed
and the crlminal action remains pending. Noting these occurrences and
over the objections of Sharp, the administrative law judge issued a
second stay order on February 2, 1990, pending" •.• final disposition of
the noted criminal proceedings ... " Order at 1.
In determining whether a Fifth Amendment privilege is validly
invoked, the judge has wide but not unlimited discretion. In exercising
that discretion, however, the judge must be informed. United States v.
Metz, 608 F.2d 147, 156 (5th Cir. (1979), cert. denied, 449 U.S. 821,
101 S.Ct. 80, 66 L.Ed. 2d 24 (1980); Unite'dStates v. Van Deveer, 577
F.2d 1016, 1017 (5th Cir. 1978); United States v. Hart, 729 F.2d 662,
670 (10th Cir. 1984), cert. denied, 469 U.S. 1161, 105 S.Ct. 914, 83
L.Ed. 2d 927. The mere assertion of the Fifth Amendment privilege,
without more does not exonerate a witness from testifying. The judge
must make an informed determination of the validity of the claim.
United States v. Sheikh, 654 F.2d 1057 (5th Cir. 1981), cert. denied,
455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed. 2d 852.
We have thoroughly reviewed the present record and find an
inadequate basis for the existing stay. The record contains only a
vague indication of the exact nature of the criminal charges pending
against respondent's witness Meese. More importantly, there is no clear
indication as to how those charges impact upon the issues presented by
Sharp's complaint of unlawful discharge in violation of section 105(c)
of the Mine Act. As such, the record contains an inadequate foundation
for the present acceptance of respondent's bald claim that Meese's
testimony in the instant case necessarily would result in a waiver of
his Fifth Amendment privilege. Further demonstration by respondent and
further inquiry by the judge are required, especially in light of
Sharp's right under the Mine Act to an expeditious hearing on his
discrimination complaint.

928

Accordingly, we vacate the existing stay order and remand to the
judge for further proceedings consistent with this order.

Richard V.

Jdyce A.

llf::ka,
L. Clair Nelson, Commissioner

Distribution
Mr. Arnold Sharp
General Delivery
Bulan, Kentucky 41722
Edwin S. Ho~son, Esq.
Hyatt, Tarrant & Combs
Citizens Plaza
Louisville, Kentucky 40202
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

929

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

May 21, 1990

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

Docket No. LAKE 89-92-M

FRANCE STONE COMPANY

BEFORE:

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

DIRECTION FOR REVIEW AND 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 seg. (1982)("Mine Act"). On
April 18, 1990, Commission Administrative Law Judge James Broderick
issued a decision approving a settlement agreement filed by the
Secretary of Labor. In the motion the Secretary stated that the terms
of the settlement had been agreed to by France Stone Company ("France
Stone"). In accordance with the motion, the judge assessed civil
penalties of $12,000, the amount originally proposed by the Secretary
for the two citations involved in this proceeding. On April 20, 1990,
however, France Stone filed with Judge Broderick a motion to amend the
settlement, to approve the amended settlement, and to dismiss the
proceeding. This motion asserted that the Secretary concurred in the
motion. We deem France Stone's motion to constitute a timely petition
for discretionary review, which we grant, and we remand this matter to
the judge for further proceedings.
The judge's jurisdiction in this proceeding terminated when his
decision approving settlement was issued. 29 C.F.R. § 2700.65(c).
Under the Mine Act and the Commission's procedural rules, once.a judge's
decision has issued, relief from the decision may be sought by filing
with the Commission a petition for discretionary review within 30 days
of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Here,
France Stone's motion to Judge Broderick constitutes a request for
relief from the judge's decision, and constitutes a timely filed
petition for discretionary review. See, ~' Kathleen I. Tarmann v.
Int'l Salt Company, 12 FMSHRC 1, 2 (January 1990).

930

France Stone was not a signatory to the "settlement agreement"
that it now disputes in part. France Stone's present motion suggests
that the original settlement submitted to the judge may not have
reflected the parties' agreement. Although France Stone's motion to
amend the settlement represents that the Secretary concurs in the
motion, like the first submission it is not signed by the opposing
party. In this circumstance, further proceedings before the judge are
necessary in order to determine the terms of the parties' settlement.
Peabody Coal Co., 8 FMSHRC 1265, 1266 (September 1986).
Accordingly, the judge's Decision Approving Settlement is vacated
and the matter is remanded to the judge for further appropriate
proceedings.

Richard V. Backley,

Distribution
Henry Chajet, Esq.
Jackson & Kelly
1701 Pennsylvania Ave., N.W.
Suite 650
Washington, D.C. 20006
Rafael Alvarez, Esq.
Office of the Solicitor
U.S. Department of Labor
230 S. Dearborn St., 8th Floor
Chicago, Illinois 60604
Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

931

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

May 22, 1990
ROGER L. STILLION
v.

Docket No. LAKE 88-91-D

QUARTO MINING COMPANY

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Conunissioners

DECISION

BY THE COMMISSION:
This proceeding involves a discrimination complaint filed by Roger
L. Stillion. pursuant to the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seg. (1988)(the "Mine Act" or "Act"). The complaint
alleges that Quarto Mining Co. ("Quarto") violated section 105(c)(l) of
the Mine Act, 30 U.S.C. § 815(c)(l), when it denied Stillion the
opportunity to participate in an inspection of the mine without a loss
of pay. l/ Following an evidentiary hearing, Conunission Administrative

11

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

932

Law Judge William iauver found that Quarto had unlawfully discriminated
against Stillion in violation of section 105(c)(l), 11 FMSHRC 523 (April
1989)(ALJ), and ordered Quarto to pay Stillion back pay, interest and·
attorney's fees. 11 FMSHRC 875 (May 1989)(ALJ). The Commission granted
Quarto's petition for discretionary review. For the reasons that
follow, we affirm the judge's decision.
The events in question took place at Quarto's Powhattan No. 4
Mine, an underground coal mine located near Clarington, Ohio. In
approximately September 1987, Quarto contracted with A&C Construction
Co. ("A&C") to extend a gob pile located on the top of a hill at the
mine. Pursuant to the contract, A&C was responsible for, among other
things, removing and hauling trees, brush, and dirt. In addition, A&C
subcontracted some of the work for hauling dirt. The work required A&C
and its subcontractor to use haulage trucks and A&C to use other heavy
equipment, such as back hoes and bulldozers. It also required A&C's
employees to work in and around the same area as some of Quarto's
employees.
Soon after A&C started the project, Quarto's employees complained
to Ronald Winkler, a union safety committeeman, and to other union
officials, about the manner in which A&C employees were driving their
trucks. (The union was the representative of Quarto's employees for
Mine Act purposes.) Quarto's employees were also concerned about the
lack of backup alarms on the trucks and other of A&C's mobile equipment.
The Quarto employees believed that they were endangered by A&C's work
practices and equipment. Stillion had himself observed several of the
complained of conditions.
Winkler discussed the Quarto employees' safety concerns with some
of A&C's employees. He also discussed them with John Smith, Quarto's
foreman for maintenance. The Quarto employees' complaints about A&C
nevertheless continued. As a result, Ted Hunt, chairman of the union
safety committee, placed a "Code-A-Phone" call to the Department of
Labor's Mine Safety and Health Administration ("MSHA") requesting that
MSHA inspect "all equipment of contractors" at the Quarto mine.
Ex. Rx-1. '!:./
On Friday, October 2, 1987, as a result of the Code-A-Phone
instituted any proceeding under or related to this
[Act] or has testified or is about to testify in any
such proceeding, or because of the exercise by such
miner, representative of miners or applicant for
employment on behalf of himself or others of any
statutory right afforded by this [Act].
30 U.S.C. § 815(c)(l).
'!:._/
Code-A-Phone is a toll-free "hot line" to the MSHA headquarters in
Arlington, Virginia, that is used to request an inspection of a mine, to
report safety or health problems, or to report possible violations of
the mandatory safety and health standards. MSHA's policy is not to
reveal the source of a Code-A-Phone request or report.

933

request, MSHA Inspector Frank Homko arrived at the mine to inspect the
contractors' equipment. J/ Pursuant to section 103(f) of the Mine Act,
30 U.S.C. §.813(f), Hunt served as the walkaround representative for
Quarto's employees during the October 2 inspection. ~/ Percy Hawkins,

J/

The Code-A-Phone inspection of A&C 1 s equipment was conducted
pursuant to section 103(g) of the Act, which states in part:
Whenever a representative of the miners or a miner
in the case of a coal or other mine where there is
no such representative has reasonabie grounds to
believe that a violation of this Act or a mandatory
health or safety standard exists, or an imminent
danger exists, such miner or representative shall
have a right to obtain an immediate inspection by
giving notice to the Secretary or his authorized
representative of such violation or danger.... [A]
special inspection shall be made as soon as possible
to determine if such violation or danger exists .•.•
30 u.s.c. § 813(g).

!:_/
The term 11 walkaround 11 is used for convenience.in reference to the
rights granted miners 1 representatives under section 103(f) ·.of the Mine
Act, which provides:

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. Where there is no authorized
representative, the Secretary or his authorized
representative shall consult with a reasonable
number of miners concerning matters of health and
safety in such mine. Such representative of miners
who is also an employee of the operator shall suffer
no loss of pay during the period of his
participation in the inspection made under this.
subsection. To the extent that the Secretary or
authorized representative of the Secretary
determines that more than one representative from
each party would further aid the inspection,he can
permit each party to have an equal of such
additional representatives. However, only one such
representative of miners who is an employee of the
operator shall be entitled to suffer no loss of pay
during the period of such participation under the
provisions of this subsection. Compliance with this

934

Quarto's safety inspector, represented Quarto on this inspection.
'.!,

Inspector Homko, accompanied by.Hunt and Hawkins, went to the gob
pile to inspect A&C 1 s .equipment. During _the inspection, Hunt elaborated
to Homko the concerns of Quarto employees about A&C 1 s equipment and work
practices. The inspection was cut short, however, due to an accident
unrelated to the issues in this case, and Hunt was paid by Quarto for
the time during which he participated in the inspection. Hunt asked
Stillion to act as the miners• walkaround representative when the
inspection resumed, and Stillion agreed.
On Monday, October 5, a different MSHA inspector went to the mine
to investigate the unrelated accident that had occurred on October 2.
(The Code-A-Phone inspection of the contractors• equipment was not
scheduled to resume until October 6.) ·The inspector was asked by
Hawkins if Quarto was responsible for paying a miners• walkaround
representative who participated in an inspection of an independent
contractor's work site. The inspector called the MSHA office and
subsequently advised Hawkins that Quarto was not obligated to compensate
such an employee walkaround representative. (Hawkins later conceded,
however, that when posing the question to the inspector, he had not told
the inspector of the particular safety complaints that had been lodged
by Quarto's employees.)
On October 6, MSHA Inspector Gary Gaines resumed the Code-A-Phone
inspection at the mine. Stillion accompanied Gaines during the
inspection. Gaines introduced Stillion to A&C employees as a member of
the local union and as the walkaround represen~ative. Stillion
testified that when Gaines informed A&C 1 s employees of their right to
participate in the inspection, .one of the employees responded, "we
[would] just as soon have somebody from the mine went because we don 1 t
know the laws anyway. 11 Tr. 131.
On October 7 and 8, Gaines continued and concluded the Code-APhone inspection with Stillion .accompanying him. Alan Olzer, Quarto 1 s
safety supervisor, acknowledged that, as a result of the inspection, a
number of safety violations were found.
At the conclusion of the inspection, Quarto refused to compensate
Stillion for the time that he had spent accompanying the inspector. ~/
subsection shall not be a jurisdictional
prerequisite to the enforcement of any provision of
this [Act].
30 u.s.c. § 813(f).

21

Quarto 1 s refusal to pay Stillion reflected a change of company
policy. For about 16 years prior to this inspection, employee
representatives of miners who accompanied MSHA 1 s inspectors during
inspections of independent contractors• equipment had been paid by
Quarto. After the mine was acquired by Consolidation Coal Company, the
policy was changed. Although the new policy was in effect when Hunt
was paid by Quarto, mine management was not yet aware of the new policy.

935

(Subsequently, the union reimbursed Stillion for his lost wages.) When
Quarto refused to pay Stillion, he filed a complaint with the Secretary
of Labor alleging discrimination in violation of section 105(c)(l) of
the Mine Act. After an investigation by MSHA, Stillion was informed by
the Secretary of her finding that no unlawful discrimination had
occurred. Accordingly, Stillion filed a discrimination complaint on his
own behalf with the Commission under section 105(c)(3) of the Act.
30 U.S.C. § 815(c)(3).
Following an evidentiary hearing, the judge issued his decision
finding a violation by Quarto of section 105(c)(l). The judge concluded
that Stillion was entitled to be paid by Quarto under section 103(f) of
the Act. 11 FMSHRC at 527. The judge reasoned that the Code-A-Phone
inspection was the type of inspection subject to the walkaround pay
requirements of section 103(f). 11 FMSHRC at 526 (citing United Mine
Workers of America v. FMSHRC, 617 F.2d 615 (D.C. Cir. 1982), cert.
denied, 459 U.S. 927 (1982); Interpretative Bulletin, 43 Fed. Reg.
17544-46 (1978)). The judge did not rule, however, on Quarto's
contention that an owner-operator should not be required under section
103(f) to pay one of its employees for acting as the miners' walkaround
representative during an inspection of an independent contractor's
equipment.
On review, Quarto again argues that, as an owner-operator, it was
not required to reimburse Stillion for accompanying an MSHA inspector
during an inspection of A&C's equipment. Quarto notes that section
103(f) states that "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 .... " (emphasis
added). Quarto notes that the term "operator," as defined in the Mine
Act, specifically includes independent contractors. £/ Quarto
recognizes that several entities may meet the statutory defin1tion of
"operator" at one mine site. It asserts, however, that the term
"operator" is used in the singular in section 103(f), thus indicating
that one operator is liable to pay walkaround compensation. Quarto
submits that because the inspection was aimed at A&C's equipment, the
representative of miners who should suffer no loss of pay should be an
A&C employee, not an employee of Quarto. Quarto notes that it was A&C,
not Quarto, that was cited by the Secretary for safety violations as a
result of the inspection. Therefore, Quarto argues, Stillion was not
entitled to be paid for his participation during the inspection of A&C's
equipment, and Quarto did not unlawfully discriminate against him by
denying him pay.

£/

Section 3(d) of the Act states:
"operator" means 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 time.

30 u.s.c. § 802(d).

936

We do not agree. Given the particular circumstances of this case,
we affirm the judge's conclusion that Quarto was required to pay
Stillion for his participation in the inspection at issue.
We first note that Stillion's participation in the inspection at
issue meets the literal requirements for compensation under section
103(f). Quarto operates, controls, and supervises the Powhattan No. 4
Mine. 30 U.S.C. § 802(g). During the time in question, Stillion was a
miners' representative within the purview of section 103(f). 30 U.S.C.
§ 813(f).
Stillion accompanied Inspector Gaines during an inspection
occurring at Quarto's mine which inspection was of the type triggering
the right to walkaround compensation under section 103(f).
Furthermore, that Stillion's participation in the inspection
furthered the purpose of the walkaround pay provision is clear. "The
walkaround pay provision and the participation right are both aimed at
the protection of the health and safety of miners - the single
overriding purpose of the legislation." Magma Copper Co. v. Secretary
of Labor, 645 F.2d 694, 698 (9th Cir. 1981). As the Senate Committee
that by-and-large drafted the Mine Act stated, paid participation in
inspections by the miners' representative "will enable miners to
understand the safety and health requirements of the Act and will
enhance mine safety and health awareness." Senate Committee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative History
of the Federal Mine Safety and Health Act of 1977 at 616-17 (1978). In
addition, Congress recognized that paid participation by representatives
of miners would, because of the representatives' particular knowledge of
the conditions at the mine, make the inspection "much more thorough."
Id. at 1054. Thus, the right of paid participation by the miners'
representative provides MSHA's inspectors needed familiarity with the
specific working conditions in a particular mine.
Stillion's participation in the inspection of A&C's equipment met
these goals. As the judge found, the inspection of A&C's equipment on
October 6, 7 and 8 arose out of the concern of Quarto's employees for
their own safety. 11 FMSHRC at 525. Quarto's miners, who complained
about the safety hazards associated with the use and maintenance of
A&C's equipment, believed that they themselves were endangered by the
use of the equipment. Their complaints led to the request for an
inspection. Stillion, who had been a safety committeeman for five
years, was familiar with the mine and had personally observed the
suspect equipment being operated in a manner that he considered unsafe
for Quarto's miners. Under these circumstances, Stillion had a right to
participate in the inspection and a right to compensation from Quarto.
Quarto's argument that it should not be held liable for
compensating its employee who participated in an inspection that
resulted in citations being issued to A&C is inapposite in these
circumstances. Here, Quarto's own employees were exposed to the hazards
created by A&C's equipment. Although A&C was appropriately cited for
the violations, since it was in the best position to abate the hazards
complained of, that does not defeat the walkaround rights of Stillion,
who served as the sole miners·' representative on the inspection and who
represented those Quarto miners exposed to the hazards created by A&C's

937

equipment.
Quarto warns that this conclusion is at odds with the purpose of
the walkaround provision. It suggests that to uphold a right to
compensation here means that an employee of an independent contractor
could request an inspection of any part of an owner-operator's mine and
be paid for participating in any resulting inspection. Quarto suggests,
as an example, that a truck driver employed by A&C could request,
participate in and be paid for taking part in an inspection of Quarto's
preparation plant. See Quarto Br. 12-13. That is not, however, the
case we are deciding today. Rather, we are deciding only that, where an
owner-operator's employees are endangered by the activities of an
independent contractor at the owner-operator's mine, a representative of
the owner operator's employees who serves as the sole miners'
representative during an inspection of the contractor's operation is
entitled to compensation pursuant to section 103(f). Of course, any
interpretation of section 103(f) that is inconsistent with its
provisions and does not effectuate its purpose would not be upheld. See
Magma Copper Co., 1 FMSHRC 1948, 1951-52 (December 1979); aff'd Magma
Copper Co. v. Secretary of Labor 645 F.2d 694 (9th Cir. 1981), cert.
denied, 454 U.S. 940 (1981).

938

For the re~sons explained above, we conclude that in the
circumstances of the present case Stillion had a right to walkaround pay
under section 103(f). ZI
Accordingly, for the reasons stated above, we affirm the judge's
decision.

ZI
Quarto appears to suggest that if the Commission concludes that it
was required to compensate Stillion, it should nonetheless not be held
liable for a violation of section lOS(c) because it acted in good faith.
Quarto Br. 19. The basis -for Quarto's "good faith belief" appears to be
the.statement by the MSHA inspector that payment was not required. An
operator's reliance on an incorrect legal opinion or theory does not
defeat effectuation of a miner's statutory rights. Cf. Emery Mining
Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984).
939

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

May 22, 1990

GREENWICH COLLIERIES, DIVISION
OF PENNSYLVANIA MINES
CORPORATION
Docket Nos. PENN 85-188-R
PENN 85-189-R
PENN 85-190-R
PENN 85-191-R
PENN 85-192-R

v.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
UNITED MINE WORKERS OF
AMERICA (UMWA)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
UNITED MINE WORKERS OF
AMERICA (UMWA)
Docket No.

v.

PENN 86-33

PENNSYLVANIA MINES CORPORATION,
GREENWICH COLLIERIES

BEFORE:

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

DECISION

BY THE COMMISSION:

This consolidated contest and civil penalty proceeding, which is
before the Commission on interlocutory review for a second time, arises

940

under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seg. ( 1988 )("Mine Act" or "Act"). This case involves orders of
withdrawal issued pursuant to section 104(d)(l) of the Mine Act by the
Department of Labor's Mine Safety and Health Administration ("MSHA") as
the result of its investigation following a methane ignition and
explosion at the Greenwich No. 1 mine, an underground coal mine operated
by Greenwich Collieries, a division of Pennsylvania Mines Corporation
("Greenwich"). ]J
In Greenwich Collieries Corp., 9 FMSHRC 1601 (September 1987)
("Greenwich I"), the Commission reversed the judge's conclusion in his
first decision (8 FMSHRC 1105 (July 1985)(ALJ)) that the withdrawal
orders were invalid because they were issued based on an investigation
after the violations had ceased to exist, and remanded to the judge for
consideration of remaining issues. On remand, acting on Greenwich's
motion for summary decision, the judge again invalidated the section
104(d)(l) withdrawal orders, this time on the ground that, although the
violations in question had been "found" by MSHA within the 90-day timeframe mentioned in section 104(d)(l), the orders had not been issued
"forthwith" within the meaning of that section. The judge therefore
modified the section 104(d)(l) orders to section 104(a) citations.

lf

Section 104(d)(l) of the Act states in pertinent part:
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 .•. 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.

30 u.s.c. § 814(d)(l).

941

9 FMSHRC 2051 (October 1987)(ALJ). ~/ Both Greenwich and the Secretary
petitioned.the Commission for interlocutory review of the judge's order
granting partial summary decision, and we granted both petitions. For
the reasons that follow, we affirm in result the judge's modification of
the withdrawal orders and remand for further proceedings.

I.
In Greenwich I, we summarized the procedural history of this case
leading to Greenwich's challenge:
On February 16, 1984, a methane ignition and
explosion occurred at the Greenwich No. 1 mine, an
underground coal mine operated by Greenwich
Collieries ••.. Three miners were killed and eleven
others were injured in the explosion. [MSHA]
arrived at the mine, engaged in rescue and recovery
efforts, observed conditions at the site, and began
an investigation of the cause of the explosion. As
part of its investigation, MSHA examined the entire
mine between February 25 and April 5, 1984, and
between March 27 and April 27, 1984, took sworn
statements from numerous individuals who
participated in the recovery operations or who had
information regarding the conditions in the mine
prior to the explosion. The Secretary's
investigators concluded that the operator's
unwarrantable failure to comply with five mandatory
safety standards contributed to the accident.
Therefore, on March 29, 1985, MSHA Inspector
~/

Section 104(a) provides in part:
If, upon inspection or investigation, the
Secretary or his authorized representative believes
that an operator of a coal or other mine subject to
this [Act] has violated this [Act], or any mandatory
health or safety standard, rule, order, or
regulation promulgated pursuant to this [Act], he
shall, with reasonable promptness, issue a citation
to the operator. Each citation shall be in writing
and shall describe with particularity the nature of
the violation, including a reference to the
provision of the [Act], standard, rule, regulation,
or order alleged to have been violated. In .
addition, the citation shall fix a reasonable time
for abatement of the violation. The requirement for
the issuance of a citation with reasonable
promptness shall not be a jurisdictional
prerequisite to the enforcement of any provision of
this [Act].

30 U.S.C. § 814(a).

9.42

Theodore W. Glusko issued to Greenwi~h the five
section 104(d)(l) orders of withdrawal at issue in
this case. [_l/] The orders alleged that violations
of various safety standards had occurred in December
1983 and January and February 198.4. Each of the
section 104(d)(l) orders indicated that they were
based on a section 104(d)(l) citation issued to
Greenwich on February 24, 1984. The orders also
indicated that they were terminated at the time that
they were issued. No miners were withdrawn from the
mine as a result of the orders.
9 FMSHRC at 1603. In addition, the orders alleged that each violation
was of a significant and substantial nature.
Following our Greenwich I remand, Greenwich contended before the
administrative law judge that the orders were invalid because they had
not been issued within 90 days of the issuance of the section 104(d)(l)
citation upon which they were based and because they had not been issued
"forthwith," within the meaning of section 104(d)(l). The judge
rejected Greenwich's contention that the orders were invalid because
they were not issued within 90 days of the underlying section 104(d)(l)
citation. He observed that although the orders were issued
approximately 13 months after the predicate section 104(d)(l) citation
was issued on February 24, 1984, section 104(d)(l) requires that a
section 104(d)(l) withdrawal order shall issue 11 [i]f ... within 90 days
after the issuance of ... [a section 104(d)(l) citation], an authorized
representative of the Secretary finds another violation of any mandatory
health and safety standard" caused by an unwarrantable failure.
9 FMSHRC at 2054 (emphasis added). The judge noted the Secretary's
assertion that evidence of each of the violations was obtained between
the date of the explosion, February 16, 1984, and April 27, 1984, when
formal testimony in the investigation was concluded, and he accepted as
true the Secretary's allegation that the contested violations were,
therefore, "found" by the Secretary within 90 days of the February 24
section 104(d)(l) citation. 9 FMSHRC at 2054.
The judge further held, however, that the orders were not issued
"forthwith" within the meaning of section 104(d)(l). 9 FMSHRC at 2056.
The judge stated that in common usage "forthwith" means "immediately."
He reviewed the chronology of events in this matter: the orders allege
violations occurring in December 1983 and January - February 1984; the
explosion occurred on February 16, 1984; MSHA examined the mine between
February 25 and April 5, 1984; and MSHA took testimony regarding the
explosion between March 27 and April 27, 1984. He found that although
MSHA "could have" issued the orders on April 27, 1984, MSHA waited until
March 29, 1985, and that the 11-month delay did not demonstrate
3/
On March 29, 1985, the mine was subject to the prov1s1ons of
;ection 104(d)(2) of the Mine Act. The withdrawal orders in question
were nevertheless issued by the Secretary under section 104(d)( 1) to
"make it clear that they ... relat[ed] back to the time the violations
were found. 11 Sec. Br. to ALJ 6.

943

"immediacy."

9 FMSHRC at 2055.

The judge further noted that while section 104(a) provides that
delay in issuing a citation "shall not be a jurisdictional prerequisite
to the enforcement of any provision of [the] Act," he found no similar
"saving provision" in section 104(d). 9 FMSHRC at 2056. The judge also
found no indication in the Mine Act or its legislative history that the
timeliness requirements of section 104(d) were not jurisdictional
prerequisites to the issuance of valid section 104(d) withdrawal orders.
9 FMSHRC at 2056.
The judge concluded that a showing of prejudice was not required
to invalidate section 104(d)(l) orders that are not issued "forthwith."
9 FMSHRC at 2056. He further concluded that, even if prejudice were
required, he agreed with Greenwich that an 11-13 month delay in
notification was "inherently prejudicial in some degree to .•. [the]
operator's ability to defend itself." Id. Based on the foregoing, the
judge invalidated the five orders and again modified them to section
104(a) citations. 9 FMSHRC at 2056. The Secretary and Greenwich
petitioned for interlocutory review, and we granted both petitions.
II.

Greenwich contends that the judge erred in holding that MSHA's
failure to issue the contested orders within 90 days of the section
104(d)(l) citation did not invalidate the orders. Greenwich argues that
section 104(d) focuses on the issuance of citations and orders, not the
detection of the underlying violations. Thus, Greenwich asserts that
the Mine Act requires that a section 104(d)(l) order must be issued
within the 90-day probationary period following the date of the
predicate section 104(d)(l) citation.
The Secretary asserts that the judge erred in concluding that the
contested orders were invalid because they were not issued "forthwith"
after the violations were "found." The Secretary argues that there is
no jurisdictional time limit in section 104(d)(l) precluding issuance of
withdrawal orders containing unwarrantable failure findings outside the
90-day time limit in circumstances where it takes the Secretary more
than 90 days to "finalize" her "findings" and to issue the appropriate
orders. The Secretary explains that here, although preliminary findings
of violation were indeed made within three months of the explosion, in
accident or disaster situations it may be many more months (or even
years) before MSHA is able to conclude its investigation, "finally" find
violations, and issue the appropriate withdrawal orders. The Secretary
argues that i t is contrary to the purposes of the Act to conclude that
such delay precludes the Secretary from citing the operator for the
unwarrantable failure violations that it committed.
The parties' raise two potentially important issues: (1) whether
failure to issue section 104(d)(l) withdrawal orders within 90 days of a
predicate section 104(d)(l) citation invalidates the orders; and
(2) whether the judge erred in invalidating the orders because they were
not issued "forthwith."

944

These a ..:guments raise important issues concerning the construction
and implementation of section 104(d) of the Mine Act. Upon close
analysis, however, we conclude that the facts and procedural posture of
this case do not squarely present the issues, and that their resolution
is not required for a proper disposition of this case. Therefore, we
conclude that it is prudent to reserve consideration of such questions
to a future case truly presenting the issues raised.
It is important here to understand the relationship between
sections 104(a) and 104(d) of the Act and, in particular, the specific
purpose and structure of section 104(d). Under section 104(d) of the
Act, if an inspector finds a violation and also finds that the violation
is of a significant and substantial nature and resulted from an
operator's unwarrantable failure to comply with a mandatory standard, a
citation noting those findings is issued. For the sake of convenience,
this citation, the "predicate" citation in the section 104(d) 11 chain, 11
is commonly referred to as a "section 104(d)(l) citation." Nacco Mining
Co., 9 FMSHRC 1541, 1545 n. 6 (September 1987). The Commission has
explained, however, that a "section 104(d)(l) citation" nevertheless is
a citation issued pursuant to section 104(a) of the Act containing the
special findings referred to in section 104(d)(l). Utah Power & Light
Co., 11 FMSHRC 953, 956-57 (June 1989).
Section 104(d)(l) provides that "[i]f, during the same inspection
or any subsequent inspection ••• within 90 days after the issuance of
such citation," the inspector finds a further unwarrantable failure
violation, a withdrawal order is to be issued unde~ section 104(d)(l).
Further, if more unwarrantable violations are found during any
subsequent inspection of the mine, withdrawal orders under section
104(d)(2) of the Act are to be issued. 30 U.S. C. § 814(d)(2). The
operator remains on probation, and issuance of withdrawal orders based
on unwarrantable findings does not cease, until an inspection of the
mine discloses no further unwarrantable failure violations. Kitt Energy
Corp., 6 FMSHRC 1596 (July 1984), aff 1 d sub nom. UMWA v. FMSHRC, 768
F.2d 1477 (D.C. Cir. 1985). This, then, is the section 104(d) 11 chain. 11
Section 104(d) is an integral part of the Mine Act's graduated
enforcement scheme, a scheme providing for "increasingly severe
sanctions for increasingly serious violations or operator behavior."
Nacco, supra, 9 FMSHRC at 1545, quoting Cement Division, National Gypsum
Co., 3 FMSHRC 822, 828 (April 1981). Like the overall enforcement
scheme of the Act, section 104(d) imposes sanctions in a graduated
manner, with increasingly serious consequences. White County Coal
Corp., 9 FMSHRC 1578, 1581 (September 1987). The focus of section
104(d) is upon the operator's unwarrantable conduct. Section 104(d)
seeks to discourage repetition of such conduct by placing the operator
on a probationary "chain." This probationary period, backed up by the
threat of a withdrawal order, is "among the Secretary's most powerful
instruments for enforcing mine safety." UMWA v. FMSHRC, supra, 768 F.2d
at 1479.
In order to preserve the use of section 104(d) as an effective
deterrent, the use of section 104(d) sanctions has been upheld in
situations where unwarrantable failure violations have been detected

945

after they have ceased to exist, recognizing that many violations by
their very nature cannot be, or are unlikely to be, observed or detected
until after they occur. Emerald Mines Corp, 9 FMSHRC 1590, 1594
(September 1987), aff'd sub nom. Emerald Mines Corp. v. FMSHRC, 863 F.2d
51, 58-59 (D.C. Cir. 1988); Nacco, 9 FMSHRC at 1581-82; Greenwich I,
9 FMSHRC at 1605. The Secretary's use, in general, of section 104(d)
withdrawal orders for past violations has also been upheld because such
orders are the procedural vehicles specified and required by the Mine
Act for alleging unwarrantable violations once a predicate section
104(d)(l) citation has been issued. White County, supra, 9 FMSHRC at
1581. The Emerald court noted that, in general, such use of section
104(d) orders is not "pointless" because it serves to place or keep the
mine operator on the section 104(d) probationary chain. 863 F.2d at 57.
Here, however, the Secretary issued purported section 104(d)(l)
orders, but the "orders" served none of section 104(d)'s special and
important purposes. The Secretary concedes that when the contested
orders were issued, the Greenwich No. 1 mine was under the section
104(d)(2) portion of the section 104(d) "chain." Nevertheless, rather
than is~uing the orders pursuant to section 104(d)(2), the Secretary
chose instead to issue section 104(d)(l) orders "related back to the
time the violations were found" or to the time of their occurrence some
13 months earlier. Sec. Br. to ALJ at 6; Sec. Br. 6. Because the
enforcement action pursued by the Secretary relates the orders back 1113 months in time, the orders had absolutely no probationary effect,
either then or at the time of their actual issuance. Further, because
the specific violations cited in the orders had been abated months
before, the orders were terminated simultaneously with their issuance
and no miners were withdrawn by these withdrawal orders. See Sec.
Br. 6, 16.
Thus, the section 104(d)(l) orders challenged here served none of
the special probationary or protective purposes of section 104(d). They
did not affect the existing probationary section 104(d)(2) "chain"; they
did not require the withdrawal of miners from the areas affected by the
violations; and, because the violations had ceased to exist, they did
not require the abatement of unsafe and violative conditions. In sum,
with these orders the Secretary did not impose any of the special
sanctions serving as the hallmark of section 104(d) action, and the
orders served none of section 104(d)'s special purposes.
The important issues raised by the parties concerning the
imposition of section 104(d)'s special sanctions should be considered
and resolved in a case where such sanctions actually have been invoked
by the Secretary. In resolving challenges to the Secretary's
enforcement authority, it is important to examine the reality of the
Secretary's enforcement actions. Emerald, 863 F.2d at 58. Here, under
the guise of section 104(d) sanctions, the Secretary's enforcement
action actually amounts to nothing more than citations of violations,
which citations contain special findings of significant and substantial
and unwarrantable failure. Were we to pursue here the important issues
raised by the parties, we would be interpreting section 104(d) in a
factual context devoid of corrsequential section 104(d) enforcement
action. In the exercise of our prudential judicial discretion,

946

therefore, we conclude that resolution of such important issues under
these circumstances would be unwise.
III.

Accordingly, under the circumstances of this case, the contested
orders, in essence, are nothing more than section 104(a) citations
containing special findings, but lacking section 104(d) effect. We
therefore affirm in result the judge's modification of the orders to
section 104(a) citations and we remand the matter for his determination
of the merits of the violations, the significant and substantial and
unwarrantable failure allegations, and, if necessary, the civil
penalties to be imposed.

-t -(

Richard V. Backley, Conunissioner

<21L-c_~/

t!. ~,L

Joyce A. Doyle, Conunissioner /l
1

947

Distribution
Linda L. Leasure
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Boulevard
Suite 400
Arlington, Virginia 22203
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2505
Mary Lu Jordan, Esq.
Earl R. Pfeffer, Esq.
United Mine Workers of American
900 Fifteenth St., N.W.
Washington, D.C. 20005
Administrative Law Judge Roy Maurer
Federal Mine Safety and Health Review Commission
Off ice of Administrative Law Judges
2 Skline, 10th floor
5203 Leesburg Pike
Falls Church, Virginia 22041

948

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

May 23, 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 87-88

v.
MID-CONTINENT RESOURCES, INC.
and
UNITED MINE WORKERS OF AMERICA

(UMWA)
BEFORE:

Ford, Chairman; Backley, Doyle and Lastowka, Commissioners

DECISION
BY THE COMMISSION:
This civil penalty proceeding, brought by the Secretary of Labor
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seg. (1982)("Mine Act" or "Act"), arises from a dispute between the
Secretary and Mid-Continent Resources, Inc. ("Mid-Continent"),
concerning section 103(f) of the Mine Act, the miner "walkaround"
provision. !/

!/

The term "walkaround" is used herein for the sake of convenience
in reference to the rights granted miners' representatives under section
103(f) of the Mine Act, which provides:
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. Where there is no authorized
miner representative, the Secretary or his
authorized representative shall consult with a

949

I.

This proceeding arises from a citation and withdrawal order issued
to Mid-Continent by the Department of Labor's Mine Safety and Health
Administration ("MSHA") on May 13, 1986, charging Mid-Continent with a
violation of section 103(f) of the Act. ~/ The citation stated that on
May 13, 1986, Mid-Continent denied Robert Butera, allegedly a designated
representative of Mid-Continent's miners, access to Mid-Continent's
Dutch Creek No. 1 Mine near Redstone, Colorado, for purposes of
accompanying an MSHA inspector on walkaround during the latter's
inspection of the mine. About one month earlier, the United Mine
Workers of America ("UMWA") had notified both MSHA and Mid-Continent,
pursuant to the Secretary's Part 40 regulations, that it had been
designated by two employees at the Dutch Creek No. 1 Mine as the
representative of those miners under the Mine Act. Mr. Butera was
listed as the specific representative of the miners. 11 Shortly after
issuance of the citation on May 13, the inspector also issued MidContinent a "no area affected" section 104(b) order of withdrawal,
30 U.S.C. § 814(b), alleging that Mid-Continent continued to refuse
Butera the right to accompany the inspector during inspection of the
reasonable number of miners concerning matters of
health and safety in such mine. Such representative
of miners who is also an employee of the operator
shall suffer no loss of pay during the period of his
participation in the inspection made under this
subsection. To the extent that the Secretary or
authorized representative of the Secretary
determines that more than one representative from
each party would further aid the inspection, he can
permit each party to have an equal number of such
additional representatives. However, only one such
representative of miners who is an employee of the
operator shall be entitled to suffer no loss of pay
during the period of such participation under the
provisions of this subsection. Compliance with this
subsection shall not be a jurisdictional
prerequisite to the enforcement of any provision of
this [Act].
30 u.s.c. § 813(f).
~/

There was no evidentiary hearing in this matter. Accordingly, the
statement of facts in this decision is based on the parties' pleadings
and briefs and the relevant citation and order issued by MSHA.

11

30 C.F.R. Part 40, the regulations adopted by the Secretary
governing the identification of representatives of miners at mines, sets
forth filing requirements for such representatives and procedures for
identification of such representatives. 30 C.F.R. § 40.l(b) defines
"representative of miners" as "[a]ny person or organization which
represents two or more miners at a coal or other mine for the purposes
of the Act .... "

950

mine. ~/ Prior to an evidentiary hearing before Administrative Law
Judge John J. Morris, the Secretary moved to dismiss the proceeding on
the ground that further investigation had disclosed that the individual
in question was not a properly designated representative of miners.
Mid-Continent opposed dismissal and moved for declaratory relief. Judge
Morris denied Mid-Continent's request for declaratory relief and
dismissed the proceeding. 10 FMSHRC 881 (July 1988)(ALJ). On review,
Mid-Continent repeats its request for declaratory relief. For the
reasons that follow, we deny that request and affirm the judge.
At no time during its thirty-plus years of operation has the UMWA
represented employees for labor relations purposes at Mid-Continent's
mines. As early as 1975, however, the UMWA attempted to become the
collective bargaining representative of Mid-Continent's hourly employees
when it unsuccessfully sought to have the Redstone Workers Association
("RWA") decertified as the collective bargaining representative under
the National Labor Relations Act, 29 U.S.C. § 151 et seg.
(1982)("NLRA"). Thereafter, the RWA continued as the employees'
collective bargaining representative until 1981, when, pursuant to a
representation election requested by the UMWA and conducted by the
National Labor Relations Board ("NLRB"), Mid-Continent's employees voted
·to become nonunion. In 1986, the UMWA began another organizing campaign
among Mid-Continent's hourly employees. Mid-Continent alleges that
beginning in April 1986, the UMWA proceeded to use the miners' representative process provided by the Mine Act and 30 C.F.R. Part 40 as an
organizing tool at the Dutch Creek #1 Mine. According to Mid-Continent,
in April 1986, the UMWA caused to be filed with MSHA the form signed by
two miners designating the UMWA and Mr. Butera as their representative
at the mine. In September 1986, the UMWA filed another petition for
representation with the NLRB. A representation election was held in
December 1986 and Mid-Continent's employees again rejected representation by the UMWA.
On March 16, 1987, the Secretary filed with the Commission a civil
penalty petition in connection with Mid-Continent's alleged violation of
section 103(f) of the Mine Act. Mid-Continent filed an answer, and the
matter was assigned to Judge Morris. In October 1987, the judge set the
case for hearing. At that time, he also allowed the UMWA to intervene
as a party and permitted the American Mining Congress ("AMC") to appear
as amicus curiae. Prior to hearing, however, the Secretary filed a
motion to withdraw the civil penalty petition and to dismiss the
proceeding. The Secretary asserted that one of the two individuals who
had signed the form designating Butera as the miners' representative was
not an active miner at the time that the form was filed and, thus, that
the designation did not comply with applicable Part 40 requirements.
Therefore, according to the Secretary, Butera was not a properly
designated miners' representative and Mid-Continent did not violate the
Mine Act in denying him access.
Mid-Continent opposed the Secretary's dismissal request and moved
~/

A "no area affected" withdrawal order means that actual withdrawal
of miners from the mine or an area of the mine is not required.

951

for declaratory relief. Mid-Continent aigued that a nominal number of
employees should not be permitted, under color of Part 40, to designate
as a miners' representative a union that does not also represent the
employees for collective bargaining purposes under the NLRA. MidContinent contended that the miners' repre~entative process under the
Mine Act was being improperly manipulated to facilitate organizational
activity under the NLRA. Mid-Continent also asserted that it had been
denied constitutional due process in the application of the Part 40
regulations to it. Mid-Continent further submitted that Butera had been
given advance notice of the inspection in violation of section llO(e) of
the Act. 21 Mid-Continent alleged that Butera, who lived several
hundred miles from the mine, had arrived at the mine entrance at
6:30 a.m., about the same time as the inspector and, therefore, must
have been given advance notice of the inspection. Mid-Continent
requested declaratory relief to the effect that section llO(e) had been
violated or, alternatively, requested that the matter be referred to the
Inspector General of the Department of Labor and to the Department of
Justice.
The administrative law judge denied Mid-Continent's requests for
declaratory relief and granted the Secretary's motion to dismiss the
proceeding. The judge recognized the Commission's discretionary power
to grant declaratory relief, but stated that "[t]he pivotal issue is
whether the Commission should exercise its discretion and grant
declaratory relief." 10 FMSHRC at 885. He concluded that, in this
instance, declaratory relief was not warranted. The judge noted MidContinent 1 s further contentions that permitting access to its mine by a
UMWA representative would "clearly conflict" with the NLRA and that the
Mine Act was being improperly manipulated to facilitate union
organizational activity under the NLRA. 10 FMSHRC at 885. The judge
concluded that his role was to adjudicate Mine Act issues and that MidContinent 1 s appropriate avenue of relief, if any, was before the NLRB.
10 FMSHRC at 885-86. He also rejected Mid-Continent's contention that
declaratory relief was necessary to explore the tensions between the
asserted right of a non-employee to serve as a representative during
inspections and the Act's prohibition of the giving of advanced notice
of inspections. The judge stated: "[t]he date and time of regularly
scheduled mine inspections, as mandated by the Act, would probably be
common knowledge to any interested miner at the site." 10 FMSHRC at
886. Accordingly, the judge denied Mid-Continent's motion for
declaratory relief, granted the Secretary's motion to withdraw the civil
penalty petition, vacated the proposed penalty, and dismissed the

21

Section llO(e) of the Mine Act states:
Unless otherwise authorized by this [Act], any
person who gives advance notice of any inspection to
be conducted under this [Act] shall, upon
conviction, be punished by a fine of not more than
$10,000 or by imprisonment for not more than five
years or both.

30 U.S.C. § 820(e).

952

proceeding.

10 FMSHRC at 886.

The Corrimission granted petitions for discretionary review filed by
both Mid-Continent and amicus AMC. The AMC moved to consolidate the two
petitions, and the Corrunission granted the motion. Subsequently, ASARCO,
Inc. ("ASARCO") filed a motion seeking leave to file an amicus brief out
of time, which the Secretary opposed. The Secretary also filed a motion
to dismiss the AMC's petition for discretionary review on the grounds
that the AMC lacked standing to petition the Corrunission for review of
the judge's decision. On December 19, 1989, the Corrunission issued an
interlocutory procedural order in which it concluded that the AMC had
not shown a sufficiently direct and concrete interest in the proceeding
or that it would be adversely affected by the outcome of the proceeding.
Accordingly, we granted the Secretary's motion to dismiss the AMC's
petition for discretionary review and vacated that part of the direction
for review granting the AMC's petition. Mid-Continent Resources, Inc.,
11 FMSHRC 2399 (December 1989). The Corrunission nevertheless permitted
the AMC to continue in its role as an amicus, and to participate in the
oral argument before the Corrunission. £/ 11 FMSHRC at 2404. We also
denied ASARCO's motion to file an amicus brief.
II.

In its brief on review, Mid-Continent primarily addresses the
merits of the various issues that it sought to put before the judge in
seeking declaratory relief, proceeding on the premise that this case is
ripe for the grant of such relief. The Secretary responds essentially
that this case is not an appropriate vehicle for declaratory relief as
to any of the substantive issues raised by Mid-Continent because there
is no actual "case or controversy" between the parties, and, even if
there were a case or controversy between the parties, the judge did not
abuse his discretion in denying declaratory relief under the
circumstances of this case.
The Corrunission has recognized that it may grant declaratory relief
in appropriate proceedings. Beaver Creek Coal Co., 11 FMSHRC 2428, 2430
(December 1989); Kaiser Coal Corp., 10 FMSHRC 1165, 1170-71 (September
1988); Climax Molybdenum Co., 2 FMSHRC 2748, 2751-52 (October 1980),
aff'd sub nom. Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d
447, 452 (10th Cir. 1983); see also Youghiogheny & Ohio Coal Co.,
7 FMSHRC 200, 203 (February 1985 )( 11Y&0 11 ) . The sources of this authority
are section 105(d) of the Act, 30 U.S.C. § 815(d), empowering the
Corrunission to "direc[t] other appropriate relief," and section 5(d) of
the Administrative Procedure Act, 5 U.S.C. § 554(e)(1982)( 11 APA 11 ) , which

£/

The AMC filed a petition for review of this interlocutory
Corrunission procedural order in the United Stated Court of Appeals for
the District of Columbia Circuit. AMC v. FMSHRC & Secretary of Labor,
No. 90-1018 (January 19, 1990). The petition seeks review of the
Corrunission's determination that the AMC lacked party status and of the
Corrunission's dismissal of the AMC's petition for discretionary review.

953

is incorporated by reference into the Mine Act.

30 U.S.C. § 815(d). Zf

The discretionary nature of administrative declaratory relief is
its paramount feature. Thus, the Tenth Circuit in Climax, supra,
rejecting the operator's contention that the Commission was required to
grant declaratory relief, explained that the "Commission's power to
grant declaratory relief is clearly discretionary, see ••• 5 U.S.C.
§ 554(e) ....
[T]he Commission is not required to grant declaratory
relief unless a failure to do so would be an abuse of discretion." 703
F.2d at 452 n. 4. The Court discussed the broad boundaries of that
discretion:
[5 U.S.C. § 554(e)] of the [APA] clearly commits the
power to grant declaratory relief to the sound
discretion of the agency.
See also
30 U.S.C. § 815(d) .... In exercising its
discretion, the Commission is entitled to assess the
advantages and disadvantages associated with
declaratory relief. Advantages include the
opportunity efficiently to terminate a controversy
or remove uncertainty, •.. 5 U.S.C. § 554(e), while
disadvantages include both the administrative burden
imposed by a policy of issuing advisory opinions and
the familiar problems surrounding the adjudication
of abstract controversies. See Yale Broadcasting
Co. v. FCC, 478 F.2d 594, 602 (D.C. Cir.), cert.
denied, 414 U.S. 914 ... (1973).
703 F.2d at 452. See generally Intercity Transp. Co. v. United States,
737 F.2d 103, 108-10 (D.C. Cir. 1984). The granting of declaratory
relief is committed, in the first instance, to the sound discretion of
the Commission administrative law judge but his determination is subject
to close review by the Commission. See generally lOA C. Wright, A.
Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2759
(1983 )("Wright & Miller"); 6A J. Moore, J. Lucas & G. Grether, Moore's
Federal Practice Par. 57.08 (2d ed. 1987)( 11 Moore's 11 ) . See also, ~·
United States v. State of Washington, 759 F.2d 1353, 1356-57 (9th Cir.
1985)(en bane, per curiam).
The Commission has noted that "the primary purpose of declaratory
relief is to save parties from unnecessarily acting upon their own view
of the law. 11 Beaver Creek, suprf!, 11 FMSHRC at 2430, quoting Climax,
supra, 2 FMSHRC at 2752. Additionally, for any grant of Commission
declaratory relief, the complainant must show that there is an actual,
not moot, controversy under the Mine Act between the parties, that the
issue as to which relief is sought is ripe for adjudication, and that
the threat of injury to the complainant is real, not speculative. See
generally, 5 J. Stein, G. Mitchell & B. Mezines, Administrative Law

ZI

The Commission has held, however, that 5 U.S.C. § 554(e), by
itself, does not confer declaratory authority upon the Commission unless
Mine Act jurisdiction otherwise obtains. Kaiser, supra, 10 FMSHRC at
1170.

954

§

46.03 (1988).

Analogously, federal courts, in applying the federal Declaratory
Judgment Act, 28 U.S.C. § 2201 and Fed. R. Civ. P. 57, which implements
that Act, may grant declaratory relief only in the context of actual
"cases and controversies." This requirement is imposed by Article III,
Section 2 of the federal Constitution and by the Declaratory Judgment
Act itself. See generally lOA Wright & Miller § 2757; 6A Moore's Pars.
57-11--57-13. Among other things, the Article III "case or controversy"
requirement weighs against use of the declaratory process to issue
advisory opinions or to resolve abstract or hypothetical problems.
~.Maryland Casualty Co. v. Pacific Coal & Iron Co., 312 U.S. 270,
272-73, 85 L.Ed. 826, 828-29 (1941). Even more relevant to this case,
Article III prohibits declaratory relief in moot cases. ~. Barany v.
Buller, 707 F.2d 285, 287 (7th Cir. 1983). As Wright & Miller state:
The presence of a controversy must be measured at
the time the court acts. It is not enough that
there may have been a controversy when the action
was commenced if subsequent events have put an end
to the controversy or the opposing party disclaims
the assertion of countervailing rights. A case is
moot when the issues presented no longer are "live"
or the parties no longer have a legally cognizable
interest in the outcome.
lOA Wright & Miller § 2757 (pp. 602-17)(footnotes omitted).
Courts have granted declaratory relief in situations where,
although the events associated with the action may not have ripened into
a present controversy, "one or both of the parties have taken steps or
pursued a course of conduct which will result in an 'imminent and
inevitable litigation, provided the issue is not settled and stabilized
by a tranquilizing declaration.'" Bruhn v. STP Corp., 312 F. Supp. 903,
906 (D. Colo. 1970), quoting Borchard, Declaratory Judgments 57 (2d ed.
1941). Similarly, "when there is a substantial likelihood that an
allegedly moot question will recur, the issue remains justiciable and
declaratory judgment may be rendered to define the rights and
obligations of the parties." lOA Wright & Miller § 2757 (pp. 617-18).
We recognize that concepts of mootness must be applied with care
in the administrative setting. As the Tenth Circuit noted in Climax,
the Article III "case or controversy" requirement does not literally
apply to federal administrative agencies like the Commission. 703 F;2d
at 451, citing Tennessee Gas Pipeline Co. v. FPC, 606 F.2d 1373, 1379-80
(D.C. Cir. 1979). The Court explained the appropriate administrative
approach to questions of mootness as follows:
[A]n agency possesses substantial discretion in
determining whether the resolution of an issue
before it is precluded by mootness.
However,
in exercising this discretion, an agency receives
guidance from the policies that underlie the "case
or controversy" requirement of article III. In

955

particular, the agency 1 s determ.·. ;1ation of mootness
is informed by an examination of the proper
institutional role of an adjudicatory body and a
concern for judicial economy. See [Tennessee Gas
Pipeline, supra]; Lucas Coal Co. y. Interior Board
of Mines Operations Appeals, 522 F.2d 581, 587 (3d
Cir. 1975). As a result, we conclude that an agency
acts within its discretion in refusing to hear a
case that would be considered moot if tested under
the article III "case or controversy" requirement.
703 F.2d at 451.
This case is, in fact, moot. The Secretary vacated the underlying
citation and withdrawal order and sought dismissal of the civil penalty
proceeding, which relief the judge granted. The enforcement action
involving that citation and withdrawal order is extinct. Therefore, at
the time of the judge's order of dismissal, there was not before the
Commission a live "case or controversy" between the Secretary and MidContinent as to the enforcement action out of which the request for
declaratory relief arose.
Nevertheless, even where the Secretary seeks vacation of a
contested enforcement action, a party to that action may oppose such
vacation or -seek declaratory relief. Y&O, supra, 7 FMSHRC at 203. The
Secretary's disclaimer of countervailing rights and her willingness to
dismiss the proceeding, are important factors to be taken into
consideration in weighing declaratory relief. The opposing party is
nevertheless entitled to establish a substantial likelihood of
recurrence of the claimed enforcement harm or the imminence of repeated
injury.
Here, we conclude that no such showing has been made. No course
of conduct has been shown that will necessarily result in imminent or
inevitable litigation with the Secretary concerning the issue raised in
this proceeding. So far as this record discloses, there is no present
claim by the UMWA or any other labor organization that it has been
designated as representative of any of Mid-Continent's employees for
walkaround purposes. In fact, the Secretary states in her brief that no
notification has been filed with her pursuant to 30 C.F.R. Part 40,
asserting such representation. S. Br. 10. As the Secretary asserts:
Nor is there any basis for assuming that such a
filing will be made in the foreseeable future.
Since the Secretary vacated the citation [in
approximately November 1987), the UMWA has not
sought to reassert miners' representative status by
obtaining the necessary additional authorization in
the intervening time period.
Id. ·Mid-Continent also has not established that similar confrontations
have since occurred at its mines, nor has Mid-Continent provided
evidence supporting its claim that the alleged problem of nonemployee
walkaround representatives is widespread in the industry.

956

Thus, :;e are left in this case with Mid-Continent 1 s speculative
concerns, which, depending as they do upon multiple contingencies and
amounting to pure conjecture, do not provide the basis for declaratory
relief. Beaver Creek, 11 FMSHRC at 2431, citing SEC v. Medical
Committee on Human Rights, 404 U.S. 403, 406 (1972).
In Climax, the Commission noted that Climax had not abated the
citation at issue and found "little reason to believe that [Climax] will
expend monies on abatement or risk loss from failure to abate
enforcement action by MSHA before contests of any future citations are
fully litigated." 2 FMSHRC at 2753. Here, Mid-Continent did not abate
the citation and· was confronted with a "no-area-affected" withdrawal
order. Indeed, even should the multiple speculative contingencies of
which Mid-Continent complains occur, the operator has not established
that it will suffer irreparable harm before contests of any future
citations are fully litigated. We note that the Secretary's counsel
assured the Commission at oral argument that it is the Secretary's
policy to issue a "no area affected" withdrawal order when, as here, an
operator refuses to comply with a citation alleging a violation of
section 103(f). Oral Arg. Tr. 29. Such an order does not subject the
operator to the withdrawal of miners and the attendant consequences of
lost production. Counsel's assurance reiterates the official policy of
the Secretary as published in the Secretary's Interpretative Bulletin,
setting forth guidelines for MSHA inspectors' interpretation and
application of section 103(f). 43 Fed. Reg. 14546, 14547 (1978). Thus,
Mid-Continent is at no risk of production loss from failure to abate the
citation. See Climax, 2 FMSHRC at 2753.
Further, given the Secretary's assurance that, in the event of an
operator's failure to abate an alleged violation of section 103(f),
withdrawal of miners will not ordinarily occur, it should not be
expected that she would take the more extreme enforcement action of
attempting to threaten to impose civil penalties upon a noncompliant
operator pursuant to section llO(b) of the Act, 30 U.S.C. § 820(b); or
criminal penalties pursuant to section llO(d) of the Act, 30 U.S.C.
820(d). We therefore believe that the fears·in this regard expressed by
counsel for Mid-Continent are not well-founded. See Oral Arg. Tr. 54.
To grant Mid-Continent's request for declaratory relief, the
Commission would be required to accept a long chain of possible future
contingencies. The Commission would "express legal opinions on academic
theoreticals which might never come to pass." Amer. Fidelity & Cas. Co.
v. Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co., 280 F.2d 453,
461 (5th Cir. 1960). We do not discern any urgent need for declaratory
relief or any convincing demonstration that Mid-Continent is being
forced to act at real, as opposed to hypothetical, peril.
III.

Accordingly, we conclude that the judge did not abuse his
discretion in denying Mid-Continent's request for declaratory relief as
to the substantive issues in question. In view of this conclusion, we
need not address the merits of those substantive issues.

957

On the foregoing bases, we affirm the judge's decision in
result. '§_/

~/

Commissioner Nelson did not participate in the consideration or
disposition of this matter.

958

Distribution
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Edward Mulhall, Jr., Esq.
Delaney & Balcomb
Drawer 790
Glenwood Springs, Colorado

81602

Mary hu Jordan, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Charles Newcom, Esq.
Susan K. Grebeldinger, Esq.
Sherman & Howard
633 17th Street, Suite 3000
Denver, Colorado 80202
Edward M. Green, Esq.
Mark G. Ellis, Esq.
American Mining Congress
1920 N Street, N.W., Suite 300
Washington, D.C. 20036
Henry Chajet, Esq.
Jackson & Kelly
1701 Pennsylvania Ave., N.W.
Suite 650
Washington, D.C. 20006
Administrative Law Judge John J. Morris
Federal Mine Safety & Health Review Commission
1244 Speer Blvd., Suite 280
Denver, Colorado 80204

959

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

May 23, 1990

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

v.

Docket No. KENT 89-27-M

MOUNTAIN PARKWAY STONE, INC.

BEFORE:

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

DECISION

BY THE COMMISSION:
The issue in this civil penalty proceeding arising under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seg.
(1988)(the "Mine Act"), is whether Commission Administrative Law Judge
Avram Weisberger erred in concluding that Mountain Parkway Stone, Inc.
("Mountain Parkway") did not violate 30 C.F.R. § 57.9002 (1988), a
mandatory safety standard that required that "[e]quipment defects
affecting safety shall be corrected before the equipment is used."
11 FMSHRC 1289 (July 1989). lf For the reasons that follow, we hold
that the judge erred and we reverse.
Mountain Parkway operates the Staton Mine, an underground
limestone mine and surface plant·equipped with crushing and screening
facilities, located in Powell County, Kentucky. On August 17, 1988,
during a regularly scheduled inspection of the Staton Mine, Eric
Shanholtz, an inspector of the Department of Labor's Mine Safety and
Health Administration ("MSHA"), issued a citation to Mountain Parkway
alleging a violation of section 57.9002. Inspector Shanholtz issued the
1/
30 C.F.R. § 57.9002 (1988) was revised as of July 1, 1988, and
transferred along with 30 C.F.R. §§ 56.9002, 56/57.9001, and 56/57.9073
to 30 C.F.R. §§ 56.14100 and 57.14100. 53 Fed. Reg. 32497, 32504
(August 1988). Sections 56.14100 and 57.14100 became effective on
October 24, 1988 .. 53 Fed. Reg. 32496 (August 1988). Therefore, at the
time of the inspection on August 17, 1988, former section 57.9002 was
still in effect.

960

citation because he believed there were defects affecting safety in a C50 boom truck parked at the mine. Specifically, the inspector noted
that there were no stabilizing jacks on the truck. (Stabilizing jacks
are outriggers that are used to support a boom truck when the boom is
raised. Tr. 232.) Without such stabilizing jacks, the truck could
overturn if it were "utilized in the wrong capacity." Tr. 233.
Shanholtz additionally noted several hydraulic leaks in the boom
controls and in the boom's left cylinder that presented both fire and
slipping hazards and allowed the boom to drop. The doors of the truck
were missing and the truck did not have seat belts. In Shanholtz's
opinion, these conditions presented the hazard of allowing a driver to
fall from the vehicle if it took a sharp turn. Shanholtz further
observed that the truck did not have front or rear lights, although it
was apparently used underground. Finally, Shanholtz noted that a rag
was used as a gas cap on the gas tank. Shanholtz testified that the rag
could act as a wick for the gas and present an explosion or ignition
hazard. Tr. 232-34.
At the time of the inspection, the C-50 boom truck was parked at
the mine and was not "tagged out, 11 i.e., did not have any tags on it to
indicate that it was in need of repair. Tr. 203-04. In addition, the
truck was in "turn-key" condition; the only step required to start the
truck was to turn the ignition key. Tr. 203-04, 249; Exhs. 8-10, 15-16.
Shanholtz testified that there were tire tracks around the truck
that he believed to be fresh and that the truck had been used whenever
there was a need to load. Tr. 183, 189-90. Shanholtz further testified
that Gary Parks, a mechanic employed by Mountain Parkway, informed him
that the truck had been used during the night shift immediately prior to
the inspection of August 17, 1988. Tr. 181-82, 477. Shanholtz
testified that Mr. Parks also informed him that the boom had dropped
while the truck was being used to load. Tr. 239.
Based upon his observations and his discussions with Mountain
Parkway employees, Shanholtz issued to Mountain Parkway a citation
pursuant to section 104(a) of the Act, 30 U.S.C. § 814(a), alleging that
it had violated section 57.9002 and that the violation was of a
significant and substantial nature. The basis for Shanholtz's
determination that the violation was significant and substantial was his
finding that "[t]he likelihood of something happening was reasonably
likely in th~t if an injury or fatality would occur, then it would be
serious." Tr. 239. Shanholtz also noted that the mine operator was
highly negligent because the operator should have observed the condition
of the truck. After the Secretary of Labor proposed a civil penalty for
the alleged violation, the matter proceeded to hearing before Judge
Weisberger.
Before the judge, Mountain Parkway contended that it could not be
cited for a violation of section 57.9002 because the truck was not
actually being used. Mountain Parkway presented testimony by some of
its employees that at the time of the August 17 inspection, the truck
had not been used for a period of time. According to these witnesses,
during that period five of the operator's seven employees were engaged
in paving at a site 10 to 12 miles away from the mine, an activity that

961

did not require use of the truck, and they were not engaged in
excavation at the mine, which might have required use of the truck. In.
its Answer to the Secretary's Petition for Assessment of Penalties,
Mountain Parkway also stated that it was planning to remedy any defects
on the truck prior to the resumption of excavation work at the mine.
In his decision, the judge determined, without citing any
precedent, that section 57.9002 requires "safety defects to be corrected
as a condition precedent to the use of the equipment" and that there
could be "no violation in the absence of evidence of the equipment being
used." 11 FMSHRC at 1295. The judge determined that there was no
evidence that the truck "was being used" and, therefore, "dismissed" the
citation. Id. 2/ The Commission granted the Secretary's subsequent
petition seeki~g review of the judge's decision. On review, the
Secretary argues that the judge misconstrued section 57.9002 and
improperly vacated the citation. We agree.
In Ideal Basic Industries, Cement Division, 3 FMSHRC 843 (April
1981), the Commission construed the concept of equipment use in
30 C.F.R. § 56.9-2 (1978) which, like section 57.9002, identically
provided that "equipment defects affecting safety shall be corrected
before the equipment is used" (emphasis added). The Commission reviewed
the evidence in order to determine whether a track mobile with a
defective coupling had actually been used. After answering that
question in the affirmative, the Commission explained that even if the
evidence was insufficient to prove actual use of the track mobile while
the coupling was defective, the mobile had been nonetheless "used"
within the meaning of the standard. The Commission based the latter
holding, in part, upon the fact that the equipment was located in a
normal work area, was capable of being used, and had not been removed
from service. 3 FMSHRC at 844-45. See also Allied Chemical Corp.,
6 FMSHRC 1854, 1859 (August 1984)(similarly construing 30 C.F.R. § 57.92 (1978), the identical regulatory predecessor of section 57.9002).
Ideal's principles are dispositive of the issue presented in this
case. The evidence that the C-50 boom truck had defects affecting
safety was largely uncontroverted. The only evidence that Mountain
Parkway presented to counter Shanholtz's testimony regarding the
multiple defects existing on the truck was that of Charles Williams, one
of its employees, who testified that he had seen stabilizing jacks on
the truck close to the time of the inspection on August 17, 1988. This
was insufficient to overcome Shanholtz's detailed testimony regarding
the numerous equipment defects affecting safety that prompted his
citation.
The judge's focus on whether the boom truck "was being used" is
too narrow. Under the standard a violation occurs if equipment "is
used" while in an unsafe condition. Here although the equipment was not
in actual use at the time of citation, the record establishes that the

£/

We assume that the judge intended to vacate the citation in
accordance with the provisions of section 105(d) of the Mine Act,
30 u.s.c. § 815(d).

962

boom truck had been used while it had the cited defects affecting
safety. Shanholtz's testimony that Parks had informed him that the boom
was dropping while the Mountain Parkway employees were using the truck
to load was unrefuted by Mountain Parkway witnesses. Tr. 239.
(Shanholtz had also testified, without contradiction, that the truck had
multiple hydraulic leaks that had allowed the boom to drop. Tr. 233.)
In this instance, however, and more compelling is the undisputed
evidence that, at the time of the inspection, the truck was parked in
the mine in turn-key condition and had not been removed from service.
In light of Ideal., supra, this evidence established use of equipment
within the meaning of section 57.9002, obviating any need to show that
the defective truck was in actual use at the time of the·inspection. We
also reject Mountain Parkway's apparent defense that it intended to
remedy any defects prior to the resumption of excavation work. No
evidence was presented at trial that the truck was "under repair."
There was no evidence that any employee had been assigned to repair the
boom truck and no evidence that anyone was actually engaged in repairing
the truck on August 17, 1988, or at any other time. See, ~' Allied
Chemical, 6 FMSHRC at 1860.
Accordingly, we hold that Mountain Parkway violated section
57.9002, and conclude that the judge erred in vacating the citation in
issue.

963

For the foregoing reasons, the judge's decision with .respect to
this citation is reversed and th1s matter is remanded for determination
of the allegation that the violation was of a significant and
substantial nature and for assessment of an appropriate civil penalty.

L. Clair Nelson, Commissioner

Distribution
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Jeffery T. Staton, V.P.
Mountain Parkway Stone, Inc.
Route 1, Box 309-B
Stanton, Kentucky 40380
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

964

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

May 24, 1990

UTAH POWER & LIGHT COMPANY,
MINING DIVISION
v.

Docket No. WEST 89-161-R

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

BEFORE:

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

DECISION

BY THE COMMISSION:
This contest proceeding ar1s1ng under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"),
involves issues of whether Utah Power & Light Company, Mining Division
("UP&L") violated 30 C.F.R. § 75.400, a mandatory safety standard
prohibiting accumulations of combustible materials, even if UP&L
complied with the cleanup plan it established pursuant to 30 C.F.R.
§ 75.400-2. l/ Also at issue are whether the alleged violation was of a

lf

30 C.F.R. § 75.400, which repeats the statutory language of
section 304(a) of_ the Mine Act, U.S.C. § 864(a), provides:
Coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other
combustible materials, shall be cleaned up and not
be permitted to accumulate in active workings, or on
electric equipment therein.
30 C.F.R. § 75.400-2, entitled "Cleanup program," provides:
A program for regular cleanup and removal of
accumulations of coal and float coal dusts, loose
coal, and other combustibles shall be established
and maintained. Such program shall be available to

965

significant and substantial nature and whether it was caused by UP&L's
unwarrantable failure to comply with the cited standard. Commission
Administrative Law Judge John J. Morris concluded that UP&L violated
30 C.F.R. § 75.400 and that the violation was of a significant and
substantial nature and caused by UP&L's unwarrantable failure to comply.
11 FMSHRC 710 (April 1989)(ALJ). For the reasons set forth below, we
affirm the judge's finding of a violation and his finding that the
violation was of a significant and substantial nature, but reverse his
unwarrantable failure determination.
UP&L operates the Cottonwood Mine, an underground coal mine
located in Utah. On March 20, 1989, Department of Labor Mine Safety and
Health Administration ( 11 MSHA 11 ) Inspector Donald Gibson, accompanied by
Forrest Adison, UP&L's Fire Boss, and James Behling, UP&L's Safety
Engineer, conducted an electrical inspection of the Cottonwood Mine. In
the 9 East working section, Inspector Gibson observed a shuttle car tear
down part of the line curtain located along the left rib. When Gibson
looked behind the line curtain, he observed loose coal that he believed
constituted an impermissible accumulation in violation of section 75.400
(n.l supra). The mass of loose coal measured 104 feet-6 inches in
length, 14 to 31 inches in depth, and 12 to 34 inches in width, and
weighed approximately 500 to 800 pounds. Tr. 80. Gibson issued UP&L a
withdrawal order pursuant to section 104(d)(l) of the Mine Act,
30 U.S.C. § 814(d)(l), citing a violation of section 75.400 and
including significant and substantial and unwarrantable failure
findings.
When Inspector Gibson and Mr. Behling arrived on the surface,
Behling showed Gibson a copy of UP&L's cleanup plan established pursuant
to section 75.400-2 (n.l supra). Gibson's review of the cleanup plan
did not affect his decision to issue the withdrawal order because, in
his opinion, the cleanup plan conflicted with section 75.400 in that it
permitted accumulations of combustible materials to exist. Gibson
testified that he issued the order because, among other things, he
determined that there had been production of coal in the 9 East working
section on March 17, 1989, and that the cited accumulations resulting
from that production had not been removed on subsequent idle shifts. He
was of the opinion that there were possible ignition sources in that
area and he had observed combustible float coal dust on rock-dusted
surfaces. Gibson determined that, by the time the next cross-cut was
driven and the loose coal would have been cleaned up under UP&L's
cleanup plan (discussed below), the cited mass of coal would have almost
doubled in size. Gibson was also aware of tests performed by the
Department of Interior's Bureau of Mines that he believed demonstrated
that similar amounts of loose coal would propagate an explosion.
Exh. R-3; Tr. 106-07.
Based on these same considerations, Gibson further concluded that
a hazard was created by the cited conditions, that it was reasonably
likely that an injury could result from those conditions and that the
injury would be of a serious nature. Accordingly, he found that the
violation was of a significant and substantial nature. Gibson also
the Secretary or authorized representative.

966

determined that the alleged violation resulted from UP&L's unwarrantable
failure to comply with the standard.
UP&L contested the withdrawal order and the matter proceeded to an
evidentiary hearing before the judge. UP&L contended that it could not
be cited for a violation of section 75.400 because it was complying with
its section 75.400-2 cleanup plan and that, under that plan, it was not
required to clean up the cited coal in the entry until the next
connecting cross-cut was driven. Specifically, according to UP&L, its
cleanup plan required that, after a continuous mining machine mines a
40-foot five-cut sequence in an entry under development, the continuous
miner is to be backed up and trammed forward to clean the "first
cuttings" from both sides of the 40-foot cut. Tr. 23, 174; Exh. C-3.
("First cuttings" are pieces of coal dislodged by the continuous miner
when the initial development work is performed.) The plan further
provided that any coal remaining behind the line curtain following the
initial cleanup "will be cleaned after the connecting cross-cut is
broken through to prevent the short circuiting of face ventilation."
Exh. C-3; Tr. 18, 35-37, 188. UP&L explained that, on one occasion less
than three months prior to Gibson's inspection, it had been cited for a
violation of a mandatory safety standard when it failed to follow its
cleanup plan. On January 6, 1989, UP&L had rolled up the line curtain
in the Third South Section of the Cottonwood Mine in order to clean up
loose coal behind the line curtain with an electric scoop before the
connecting cross-cut had been driven. Tr. 198. As a result, MSHA
Inspector Dick Jones issued a citation to UP&L for violation of
30 C.F.R. § 75.316, alleging that rolling up the curtain had disrupted
face ventilation. Inspector Jones noted in that citation that "the
approved cleanup plan states that the curtain side of the entry will not
be cleaned until the connecting cross-cut has been made. 11 Exh. C-4.
In his decision, Judge Morris determined that the largely
uncontroverted testimony regarding the substantial amount of loose coal
discovered by the inspector established a violation of section 75.400,
citing Old Ben Coal Co., 1 FMSHRC 1954 (December 1979)("0ld Ben I").
11 FMSHRC at 727. The judge was not persuaded by UP&L's evidence that
the coal was partially wet or d?Jllp noting that a fire could quickly dry
damp coal. Id. The judge also rejected UP&L's reliance on its cleanup
plan on the ground that "a cleanup plan developed pursuant to 75.400-2
cannot overrule the mandatory duties required in § 75.400. 11 Id.
Crediting Inspector Gibson's relevant testimony, the judge further
held that the violation was of a significant and substantial nature,
citing Mathies Coal Company, 6 FMSHRC 1 (January 1984). 11 FMSHRC at
728. With respect to the unwarrantable failure issue, .the judge
determined that UP&L's conduct was aggravated conduct constituting more
than ordinary negligence. 11 FMSHRC at 728-29. In reaching this
conclusion, the judge credited testimony that MSHA and UP&L "had
discussed the practice of cleaning first cuttings" (11 FMSHRC at 728),
and found that UP&L could employ other adequate methods of cleanup that
would not allow accumulations to exist and, unlike the rolling up the
line curtain, would not sacrifice face ventilation (11 FMSHRC at 72829).

967

On review, UP&L challenges the judge's findings on four grounds:
(1) UP&L did not violate section 75.400, most particularly because it

was complying with its section 75.400-2 cleanup plan; (2) section 75.400
is unconstitutionally vague as applied in this case; (3) substantial
evidence does not support the judge's finding that the violation was of
a significant and substantial nature; and (4) substantial evidence does
not support the judge's unwarrantable failure finding. We consider each
of these challenges in turn.
With respect to the issue of violation, the Commission previously
has held that section 75.400 "is violated when an accumulation of
combustible materials exists." Old Ben I, 1 FMSHRC at 1956. The
Commission has further held that a violative "accumulation" exists
"where the quantity of combustible materials is such that, in the
judgment of the authorized representative of the Secretary, it likely
could cause a fire or explosion if an ignition source were present."
Old Ben Coal Co., 2 FMSHRC 2806, 2808 (October 1980)("0ld Ben II").
In defining a prohibited "accumulation" for section 75.400
purposes, the Commission explained that "some spillage of combustible
materials may be inevitable in mining operations. However, it is clear
that those masses of combustible materials which could cause or
propagate a fire or explosion are what Congress intended to proscribe."
Old Ben II, 2 FMSHRC at 2808. The Commission emphasized that the
legislative history relevant to the statutory standard that section
75.400 repeats "demonstrates Congress• intention to prevent, not merely
to minimize, accumulations. The standard was directed at preventing
accumulations in the first instance, not at cleaning up the materials
within a reasonable period of time after they have accumulated. 11 Old
Ben I, 1 FMSHRC at 1957. The Commission also indicated that the
inspector's judgment that a prohibited accumulation exists is "subject
to challenge before the administrative law judge. 11 Old Ben II, 2 FMSHRC
at 2808 n.7. Within the context of the broadly phrased standard in
question, which applies to myriad mining conditions, the inspector's
judgment will be reviewed judicially by reference to an objective test
of whether a reasonably prudent person, familiar with the mining
industry and the protective purpose of the standard, would have
recognized the hazardous condition that the regulation seeks to prevent.
See,~· Canon Coal Co., 9 FMSHRC 667, 668 (April 1987).
Applying the foregoing principles to the record in this case, we
conclude that the judge properly determined that UP&L violated section
75.400. Substantial evidence supports the judge's finding that the
cited mass of loose coal constituted a prohibited "accumulation" within
the meaning of the Old Ben decisions. The loose coal measured some 104
feet in length, averaged some 23 inches in width and 22 inches in depth,
and weighed approximately 500 to 800 pounds. Inspector Gibson testified
that this amount of loose coal would likely cause an explosion if an
ignition source were present. Among other things, he relied upon Bureau
of Mines• tests showing that as little as two 300-pound piles of loose
coal can propagate an explosion even if an entry is adequately rockdusted. Fire Boss Adison, who helped Gibson measure the loose coal,
stated that there was an excessive amount of loose coal behind the line
curtain and agreed that the condition was violative of section 75.400.

968

There was also uncontroverted testimony that this amount of loose coal
would double ·in size from a length of 104 feet to approximately 210 feet
by the time that the next cross-cut was driven and the loose coal
cleaned up under UP&L's cleanup plan. Tr. 90-91, 97, 101-02, 140. The
fact that there was some dampness in the coal did not render it
incombustible and, as both the judge and inspector properly noted
(11 FMSHRC at 727; Tr. 96), wet coal can dry out in a mine fire and
ignite. See Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120-21
(August 1985). In light of this evidence, a reasonably prudent person
familiar with the mining industry would have recognized that this
relatively large amount of coal was an accumulation prohibited by
section 75.400.
UP&L, however, argues that the Old Ben precedent is inapplicable
because those decisions did not address the manner in which section
75.400 is to be harmonized with 75.400-2. As noted, UP&L contends that
it cannot be cited for a violation of section 75.400 because it was
complying with its section 75.400-2 cleanup program. We disagree.
Section 75.400-2 implements section 75.400, not vice versa. A cleanup
plan cannot establish procedures that allow coal and other combustible
m~terials to accumulate in violation of section 75.400.
In agreement
with the judge, we hold that an operator cannot avoid a finding of
violation of section 75.400 by arguing that it was merely following a
section 75.400-2 cleanup plan that it had established. ff
UP&L also points to language in MSHA's Program Policy Manual
("Manual") to the apparent effect that existing "accumulations" may be
removed on a regular basis. See Exh. R-3 at 51-53. The Manual language
cited by UP&L must be read in context with the Manual's explanation of
the intent of section 75.400: "The intent of this Section is to prevent
the accumulations of the specified combustible materials in order to
reduce the dangers of mine fires and explosions." Exh. R-3 at 51
(emphasis added). More importantly, the Manual's instructions and
commentary are not officially promulgated and do not prescribe rules of
law binding upon the Commission. !:...s..:_, King Knob Coal Co., 3 FMSHRC
1417, 1420 (June 1981). The interpretation of section 75.400 advanced
by the Secretary and adopted in the Old Ben decisions overcomes any
arguable conflict posed by language in the Manual. Finally, we also
reject UP&L's argument that section 75.400 is unconstitutionally vague
as applied in this case. As discussed above, in light of the nature of
the accumulation in question, the inspector's judgment that it
constituted a prohibited accumulation satisfies an objective reasonable
person test.

~/
Although a section 75.400-2 cleanup plan need not be approved by
MSHA, we believe that this case illustrates the strong desirability of
communication and cooperation between operators and the Secretary in the
development of operators' cleanup plans. Such coordination is of great
importance in ensuring the safety of miners and in implementing the
policies of the Mine Act. Cf. Southern Ohio Coal Company, 10 FMSHRC
138, 143 (February 1988); Jim Walter Resources, Inc., 9 FMSHRC 903, 909
(May 1987).

969

Accordingly, we affirm the judge's conclusio~1 that UP&L violated
section 75.400.
We also hold that substantial evidence supports the judge's
conclusion that the violation was of a significant and substantial
nature. Although we agree with UP&L that the judge could have provided
a more detailed analysis of this issue, he credited Inspector Gibson's
testimony, which is detailed.
A violation is properly designated as being of a significant and
substantial nature "if, based on the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably
serious nature." Cement Division, National Gypsum Co., 3 FMSHRC 822,
825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984),
the Conunission 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, 104-04 (5th Cir.
1988), aff'g, 9 FMSHRC 2015, 2021 (December 1987)(approving Mathies
criteria). The third element of the Mathies formula "requires that the
Secretary establish a reasonable likelihood that the hazard contributed
to will result in an event in which there is injury" (U.S. Steel Mining
Co., 6 FMSHRC 1834, 1836 (August 1984)), and the violation itself must
be evaluated in terms of continued normal mining operations (U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); ~also Halfway,
Inc., 8 FMSHRC 8, 12 (January 1986)).
With respect to the first element, we have concluded above that
the judge properly found that UP&L violated section 75.400. The second
element, whether a measure of danger to safety was contributed to by
UP&L's violation, is also established. The relevant legislative history
demonstrates that Congress recognized that experience has proven that
loose coal can propagate an explosion and must therefore be kept to a
m1n1mum. See Old Ben I, 1 FMSHRC at 1957, cit!gg S. Rep. No. 411, 91st
Cong., 1st Sess. 65, reprinted in Senate Subconunittee on Labor,
Conunittee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I
Legislative History of the Federal Coal Mine Health and Safety Act of
1969, at 191 (1975). Inspector Gibson discovered loose coal in an
active working area in which possible igniticn sources existed, and in
which burn areas had previously been discovered. The mass of coal was
large and in an amount that the Bureau of Mines has found could
propagate an explosion. Therefore, a "measure of danger to safety" was
presented by the cited accumulation.

970

With respect to the third element, a reasonable likelihood of
injury caused by the violation, Inspector Gibson testified that the
continuous miner was generating dust and sparks and had a trailing cable
with 950 volts of alternating current. Tr. 95-98, 101. He stated that
other possible ignition sources in the 9 East working section, such as
the trailing cables of the shuttle car and roof bolter, both of which
conducted 480 volts of alternate current, could combine with the loose
coal and cause an explosion. Tr. 106. Gibson also noted that there was
float coal dust on rock-dusted surfaces within the area, giving it a
"salt and pepper 11 appearance. Tr. 96. The fact that some of the coal
accumulations were damp was not determinative because, as· noted above,
damp coal dries in the presence of fire. Inspector Gibson properly took
into consideration the fact that, in the normal course of operations,
the accumulation would expand from 104 feet in length to approximately
210 feet by the time that the next connecting cross-cut was driven and
further cleanup undertaken. Tr. 90-91. There was also evidence in the
record that burn areas had been encountered in the 9 East working
section and that diesel equipment was sometimes used. Tr. 38, 43, 189,
217. The foregoing evidence supports the judge's finding that the
hazard contributed to by the violation, an ignition or explosion in the
active workings in question, posed a reasonable likelihood of injury to
any miners working there.
The fourth element, a reasonable likelihood that the injury in
question would be of a: reasonably serious nature, was also established.
The area in which the accumulation existed was an active working
section. Gibson testified that he believed that it was reasonably
likely that any injuries resulting from a fire or explosion would be
serious, including burns and, possibly, a fatality. Tr. 106. Gibson's
testimony on this point was uncontroverted and proves the fourth
element.
We have considered other evidence in the record relied upon by
UP&L that mitigates the degree of danger created by the violation. We
conclude, however, that substantial evidence supports the judge's
finding that the violation was of a significant and substantial nature.
We turn to the judge's finding that the violation also resulted from
UP&L's unwarrantable failure to comply with the standard.
In Emery Mining Corp., 9 FMSHRC 1997, 2000-04 (December 1987), and
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987), we
held that "unwarrantable failure means aggravated conduct, constituting
more than ordinary negligence, by a mine operator in relation to a
violation of the Act. 11 This conclusion was based on the ordinary
meaning of the term "unwarrantable failure, 11 the purpose of
unwarrantable failure sanctions in the Mine Act, the Act's legislative
history, and judicial precedent. We stated that while negligence is
conduct that is "inadvertent", 11 thoughtless, 11 or "inattentive," conduct
constituting an unwarrantable failure is conduct that is "not
justifiable" or "inexcusable". Emery, supra, 9 FMSHRC at 2001.
The judge found that UP&L's decision to mine in a manner that
allowed accumulations to exist amounted to an unwarrantable failure to
comply with section 75.400. 11 FMSHRC at 729. The judge. credited

971

test~mony

that MSHA had discussed with the operator's upper management
the practice of cleaning up first cuttings. The judge rejected UP&L's
argument that it was justified in relying on the prior MSHA citation
which was issued when UP&L rolled up the line curtain in order to clean
up loose coal. 11 FMSHRC at 728-29. The judge found that UP&L was not,
in fact, faced with the choice of either rolling up the line curtain to
clean up the loose coal behind it and receiving an "Inspector Jones
citation" for inadequate ventilation at the face, or waiting to clean
until after the cross-cut had been driven and receiving an "Inspector
Gibson citation." The judge determined that UP&L could use other
cleanup methods.which would not violate its ventilation plan and would
not allow accumulations to exist. 11 FMSHRC 728-29.
While we agree with the judge that UP&L made a conscious decision
to adhere to its cleanup plan, such conduct does not rise to the level
of aggravated conduct constituting more than ordinary negligence. The
evidence showed that UP&L chose to follow its cleanup plan in good
faith, believing that such conduct was consistent with applicable
regulations. Testimony indicates that issuance of the Jones citation
stating that "the approved cleanup plan states that the curtain side of
the entry will not be cleaned until the connecting cross cut has been
made" (emphasis added), led UP&L to believe that it should follow its
cleanup plan in order to comply with the regulations. Tr. 51-52, 55,
201. The fact that seemingly conflicting MSHA policies left UP&L in
doubt as to what was required for compliance with section 75.400 is a
factor which militates against finding that UP&L's conduct was
aggravated. King Knob, 3 FMSHRC at 1422.
Other testimony revealed that UP&L employed the cleanup methods in
issue because it believed that those methods were safer than alternative
procedures. Tr. 208. Bad ribs were a major source of problems at the
Cottonwood Mine, and the cleanup plan adopted at the mine was one which
could be used consistently throughout the mine and would decrease
miners' exposure to the ribs. Tr. 207, 217. John Boylen, Mine Manager
of the Cottonwood Mine, testified that the alternative of using
ventilation tubing was not employed by UP&L because such a procedure
would present hazards associated with the use of fans, such as those
associated with the electric current provided by the cable and the
possible recirculation of dust and methane. Tr. 208-09. In addition,
Boylen testified that the process of hanging line curtain was safer than
the process of hanging ventilation tubing. Tr. 209.
The Commission has determined that when an operator believed in
good faith that the cited conduct was the safest method of compliance
with applicable regulations, even if they are in error, such conduct
does not amount to aggravated conduct exceeding ordinary negligence.
Florence Mining Co., 11 FMSHRC 747, 752-54 (May 1989); Southern Ohio
Coal Company, 10 FMSHRC 138, 142-43 (February 1988). See also
Westmoreland Coal Co., 7 FMSHRC 1338, 1343 (September 1985). Here, it
appears from UP&L's testimony that it adopted and followed its cleanup
program in good faith, believing that it was employing the safest method
of cleanup available.
The judge's reliance upon the alleged discussions between MSHA and

972

UP&L was misplaced. Preliminarily, we note that the judge did not s~t
forth his findings with respect to the discussions in a manner such that
we can attach much weight to them. Moreover, the record lacks
sufficient or uncontradicted evidence as to the specific content of such
discussions. Inspector Gibson testified that he had three discussions
with UP&L regarding cleaning up first cuttings, but he did not indicate
whether cleaning behind the line curtain was discussed. Tr. 94-95, 136.
William Ponceroff, Supervisor of MSHA's Orangeville Field Office,
testified that he had three discussions with UP&L management, including
Mine Manager Boylen, regarding cleaning up first cuttings, including
some discussion pertaining to cleaning up behind line curtains.
Tr. 151-53, 155, 157. Boylen admitted that he had discussed cleaning up
first cuttings with Ponceroff, but denied discussing cleaning up
accumulations behind line curtains. Tr. 210-11. Randy Tatton, the
chief safety engineer of Cottonwood Mine, who was alleged to have been
present on at least one of the discussions with Ponceroff, also denied
that the discussion involved cleaning first cuttings behind line
curtains. Tr. 45, 155. This evidence does not support any finding that
UP&L delayed the removal of the first cuttings behind the line curtain
knowing that the practice was violative of section 75.400. Rather,
UP&L's conduct resulted from a good faith, albeit mistaken, belief that
the procedures in its cleanup plan were in compliance with section
75.400. Therefore, we conclude that substantial evidence does not
support the judge's finding that UP&L's violation of section 75.400 was
caused by its unwarrantable failure to comply.
For the foregoing reasons, we affirm the judge's finding that UP&L
violated section 75.400 and that the violation was of a significant and
substantial nature but reverse the judge's finding that UP&L's violation
was the result of an unwarrantable failure to comply with the standard.

~n
I

.
~F(_~ --C---l--C~ / /,_tt'Lt- ~(,,,
)<,.

Richard V. Backley, Commissioner

Doyle, Commissio

r

L. Clair Nelson, Commissioner

973

Distribution
Timothy M. Biddle, Esq.
Susan E. Chetlin, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
280 Colonnade Center
1244 Speer Blvd.
Denver, Colorado 80204

974

ADMINISTRATIVE LAW JUDGE DECISIONS

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

1~90

MAY 2

.

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

CIVIL PENALTY PROCEEDING

:

.

v.

BETH ENERGY MINES
INCORPORATED,
Respondent

Docket No. PENN 89-222
A. C. No. 36-00840-03685
Cambria Slope Mine No. 33

.
DECISION

Appearances:

Thomas A. Brown, Jr., Esq., Office of the
Solicitor, Department of Labor, Philadelphia,
Pennsylvania, for the Secretary1
R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Weisberger

Statement of the Case
In this Civil Penalty Proceeding, the Secretary (Petitioner)
seeks civil penalties for alleged violations by Respondent of
30 C.FR. § 75.301 and § 75.316. Pursuant to notice, the case was
heard in Johnstown, Pennsylvania, on January 9, 1990. Gerry L.
Boring and Samuel J. Brunatti testified for Petitioner. Samuel
Brunatti was called to testify by Respondent. Arthur Britten,
Charles F. Forst, George w. Moyer, and Nick Carpinello testified
for Respondent. Respondent filed a Brief on March 9, 1990, and
Petitioner filed Proposed Findings of Fact and a Brief on
March 19, 1990.
Stioulations
1. Mine 33 is owned and operated by Beth Energy Mines,
Inc., and subject to the jurisdiction of the Federal Mine Safety
and Health Act of 1977.

2. The Administrative Law Judge has jurisdiction over these
proceedings.
3. The subject citations were properly served by a duly
authorized representative of the Secretary of Labor upon agents
of Beth Engergy at the dates and places stated therein, and may
be admitted into evidence for the purpose of establishing the
issuance, but not for the truth of the matters asserted therein.
975

4.
Beth Engergy demonstrated good faith in the abatement of
the citations.
5.
The assessment of the civil penalty or civil penalties
in this proceeding will not affect Beth Energy's ability to continue business.
6.
The appropriateness of the penalty and the size of the
operator's business should be based on the fact that Beth Energy's
annual production is 9,751,620 tons and Mine 33's annual production
tonnage is 2,170,006 tons.
7.
The printout of the civil penalty complaint reflects the
Secretary's history of violations at Mine 33.
Findings of Fact
1. On March 14, 1989, at Respondent's Cambria Slope Mine
No. 33, at the end of the midnight shift, the methane monitor
de-ener3ized the power on the longwall face.
The miners investigated and determined that there were excessive levels of methane
present~ they de-energized all the power and withdrew from the
face.
The power remained off during the day shift.
2.
This methane had not been present at the end of the midnigi.1t shift.
Arthur R. Britten, a longwall fo:r:eman at Mine 33,
worked the midnight shift on March 14, 1989.
As part of his
normal duties, Britten inspected the longwall face for the
presence of methane.
During his examinations he detected no
excessive levels of methane.
He also took air readings at the
headgate entry and obtained a normal reading of approximately
18,000 cubic feet of air per minute C"cfm").
3. Charles F. Forst was the day shift longwall foreman on
March 14, 1989. When he arrived at the longwall section, the
miners who had remained from Britten's crew informed him of the
methane problem.
Forst told his crew to proceed to the headgate
side of the longwall and to remain outby the longwall face until
an examination was conducted to determine the nature of the
problem.
4.
Forst examined the face of the longwall and found that
at the No. 114 chock there was a level of 2.5 percent methane.
The bottom was broken in the area of the highest methane readings.

5. Between 8:15 and 8:20 a.m., the crew from the longwall
approached MSHA Inspector Gerry L. Boring, who was present to
conduct an inspection, and informed him that their supervisor had
instructed them to proceed to the headgate side and wait until
the foreman determined the extent of the methane problem.

976

6.
Boring entered the return entry and proceeded to the
tailgate of the longwall, where he met Forst.
7. Boring and Forst proceeded to take methane readings with
an approved methane detector at the bleeder evaluation point 54.
A bottle sample was also taken and the detector and bottle samples
revealed a reading of 4.9 per~ent.
8. The methane measurements taken at approximately 8:45 a.m.,
at chock 167 revealed 2.5 percent methane.
At chocK 142 a reading
of 1.5 methane percent was recorded. A bottle sample taken at
chock 167 revealed a reading of 2.4 percent methane.
9.
Boring returned to bleeder evaluation point 54 and took
a methane reading of 3.7 percent at approximately 9:05 a.m.
10.
A methane reading at the regulator near bleeder evaluation point 54 revealed 4.2 percent methane, and an air reading of
20,412 C.F.M. at approximately 9:05 a.m ••
11. Bill Moyer, Respondent's longwall coordinator, obtained
higher methane readings by placing his methane spotter closer to
the bottom. He concluded that the methane was coming from the
bottom and not from the gob.
12. At approximately 9:20 a.m., Boring informed Moyer that
he was issuing a section 107 Ca) Irrmlinent Danger Order and posted
a sign at the headgate and the tailgate closing off the longwall
face.
13. At approximately 9:35 a.m., Boring took an air reading
at the headgate which measured 16,254 C.F.M. and a methane
reading of 0.1 percent.
At approximately 9:35 a.m., Boring
measured 2.4 percent methane at chocK 166. Boring then traveled
to the tailgate section and took an air reading of 5,880 C.F.M.
and a methane reading of 0.1 percent. At approximately
10:30 a.m., Boring returned to bleeder evaluation point 54 and
took a methane reading of 3.4 percent. On the morning of
March 14, the combined total of air measured by Boring in the
tailgate and headgate was approximately 23,000 C.F.M.
14. Boring issued Citation No. 2891347 alleging a violation
of 30 C.F.R. § 75.301. Boring also issued a section 107 Imminent
Danger Withdrawal Order.
15. Also on March 14, 1989, Boring issued Citation
No. 2891346 alleging that the approved ventilation, methane and
dust control plan (review no. 32) was not being complied with, in
that a methane reading of 4.9 percent was detected inby bleeder
evaluation point No. 54 at Mine 33.

977

16. At the time of the issuance of Citation No. 2891346 for
the alleged violation of 75.316, Beth Energy had an approved
ventilation· system, methane and dµst control plan.
17.
In the most recent 6 month review of the plan prior to
the citation herein, Petitioner, on January 31, 1989, approved
the plan with the following language "These plans and all
criteria listed under Section 75.316, 30 C.F.R. 75, shall be
complied with." CGx 7).
18. The sentence quoted in Finding No. 17 is being included
by MSHA District Two in approvals of mine plans in the district.
Discussion and Conclusions of Law
A.

Citation No. 2891347.

Citation No. 2891347, issued by Boring on March 14, 1989,
alleges a violation of 30 C.F.R. § 75.301 in that a methane
reading of 2.5 percent was detected at chock No. 167. Boring's
uncontradicted testimony establishes that testing by him indicated methane readings, along the longwall panel of 2.5 percent
at chock 167, 2.7 percent at chock 142, and 1.5 percent at
chock 114.
30 C.F.R. § 75.301 provides as follows:
All ~ctive workings shall be ventilated by a current of air containing not less than 19.5 volume per
centum of oxygen, not more than 0.5 volume per centum
of carbon dioxide, and no harmful quantities of other
noxious or poisonous gases; and the volume and velocity
of the current of air shall be sufficient to dilute,
render harmless, and to carry away, flammable, explosive, noxious, and harmful gases, and dust, and smoke
and explosive fumes.
The minimum quantity of air
reaching the last open crosscut in any pair or set of
developing entries and the last open crosscut in any
pair or set of rooms shall be 9,000 cubic feet a
minute, and the minimum quantity o~ air reaching the
intake end df a pillar line shall be 9,000 cubic feet a
minute. The minimum quantity of air in any coal mine
reaching each worKing face shall be 3,000 cubic feet a
minute.
The authorized representative of the Secretary
may require in any coal mine a greater quantity and
velocity of air when he finds it necessary to protect
the health or safety of miners.
In robbing areas of
anthracite mines, where the air currents cannot be
controlled and measurements of the air cannot be
obtained, the air shall have perceptible movement.

978

It is Respondent's position that section 301, supra,
requires at least 9,000 cubic feet of air a minute in order to
achieve co1npli~nce with the mandate of the first sentence which
requires velocity and volume of air sufficient to dilute and
render har~less explosive gasses.
Respond~nt refers to undisputed evidence of an airflow of 17-18,000 C.F.M. at the headgate,
and argues that as such it was fully in compliance with section
75.301, supra, which is satisfied by a flow of at least
9,000 C.F.M.
It iurther argues that section 75.301, requires
only a minimum of 9,000 C.F.M. unless the Secretary requires
more, and that no such requirement was imposed herein.
I do not accept the interpretation of section 75.301, supra,
advocated by Respondent.
I find that plain language of the first
sentence of section 15.301, supra, unequivocally requires a current of air sufficient to dilute and render harmless explosive
gasses.l/ The second sentence requires a "minimum of 9,000 C.F.M.
reaching the last open crosscut.
To hold, as urged by Respondent,
that section 75.301 is fully satisfied if at least 9,000 C.F.M. is
provided, would render meaningless the first sentence which requires
a volume and velocity of air "sufficient to dilute and render harmless explosive gasses." Thus, an airflow exceeding 9,000 C.F.M., as
on the date in issue, does not comply with section 75.301, supra, if
it is not sufficient to dilute and render harmless explosive gases.
As described in Boring's testimony and not contradicted by other
witnesses, methane was present in concentrations close to the explosive range of 5.15 percent.
As such I find that the volume and
velocity of air was not sufficient to dilute and render the methane
harmless, and as such 75.301, supra, was violated.~/
II.
According to Boring, the violation herein was significant
and substantial. The evidence herein clearly established, that
due to the concentration of methane present, there was a
~/ I reject Respondent's argument that it is not clear that
section 75.301, suora, applies to methane.
The Dictionary of
Mining, Minerals, and Related Terms, CU. S. Department of
Int=rior, 1968) CDMMRT), in defining methane, indicates that
" • • . with air, however, it forms an explosive mixture, • • .
I thus find that methane is an explosive gas and is thus within
the purview of the first sentence of section 75.301, supra.

"

~/ The fact that Respondent's ventilation system was working to
dilute the methane that was present, and the fact that the methane
present might have been due to an unexpected outburst rather than
an accumulation, are factors bearing on Respondent's negligence,
a~d are discussed in paragraph 6, infra.
The fact that Respondent
might not have been negligent herein, does not relieve it of its
responsibility for not complying with section 75.301, supra.
(See,
Western Fuels-Utah, Inc. v.
FMSHRC 870 F.2d. 711 CD.C. Cir. 1989)~
Asarco Inc. - North Western Mining Dept. v. FMSHRC, 868 F.2d 1195
(10th Cir. 1989)).
979

violation as discussed above I, infra, which contributed to the
hazard of an explosion.
(See, Mathies Coal Comoany, 6 FMSHRC 1
(1984)).
However, according to Mathies at 3-4 , supra, to be
significant and substantial there must also be a reasonable
likelihood that the hazard contributed to will result in an
injury.
In U. S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836,
(1984), the Commission indicated that this element" . • • requires
that the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there is an
injury." The evidence fails to establish this element. The only
testimony on this point is that of Boring.
He acknowledged that
there were no energized equipment or men in the area. When asked
what the ignition source was for the methane, he responded as
follows:
"Well, the ignition source could be anything that would
cause a spark, a roof fall, men within the area, hammers, metal to
metal, anything that would occur within that given area to create a
spark that would maybe ignite the methane there" (Tr. 40-41). When
asked to indicate why he concluded the violation was significant
and substantial, he said that " • • • if there would have been a
roof fall, possibly a spark, rock to rock igniting the methane
causing an explosion" (Tr. 42). He indicated that due to the
concentration of methane which indicated that somewhere within the
gob area there was a "volatile situation" (Tr. 42), there was a
danger of an explosion and that he "felt it was likely" (Tr. 42).
Since men had been withdrawn from the area, there were no energized
equipment in the area, and there is no evidence of any condition
making a roof fall, likely, I conclude that it has not been established that there was a reasonable likelihood of the methane being
ignited.
Accordingly, I conclude that it has not been esablished
that the violation herein was significant 'and substantial.
(See
Mathies, supra, U. S. Steel, supra).
III.
Due to the high concentrations of methane at various points
in the section, and taking into account Boring's uncontradicted
opinion that the methane was volatile in the gob, I find that the
violation herein constituted a high degree of gravity, mitigated
~by the absence of proof of the presence of reasonably likely ignition sources.
The methane present on the morning of March 14,
was not present when the area was examined in the proceeding, or
midnight shift.
Further, no methane was detected, all power in
the area was de-ener~ized by Respondent, and miners were withdrawn.
Also, the volume and velocity of air prasent was about
double the minimum required by section 75.301, supra. Further,
inasmuch ~s the bottom of the mine, which had heaved, had the
highest methane readings, it might be concluded that the methane
present was the restilt of an outburst from the bottom and was
unexpected.
Accordingly, I find Respondent not to have been
negligent with respond to th3 violation herein.
Taking into
account the remaining statutory factors in section llOCi) of the
Act, I conclude that a penalty of $100 is appropriate.

980

B.

Citation No. 2891346.

I.
The evidence is not controverted that on March 14, 1989,
Boring took a bottle sample of methane at bleeder evaluation
point 54, and the results of the testing reveled 4.5 percent
methane. Boring issued a citation, in essence, alleging a violation of Respondent's ventilation plan.
The ventilation plan does
not contain any language setting any limit on methane at the
evaluation point tested.
However, in the 6 months review of the
ventilation plan.on January 29, 1989, the MSHA District Manager
approved the plan with the following sentence:
"These plans and
all criteria listed under section 75.316, 30 C.F.R. 75, shall be
complied with." The iirst sentence of section 75.316-2 provides
that "This section sets out the criteria by which district manag~rs will be guided L1 approving a ventilation system and dust
control plan on a mine-by-mine basis." Section 75.316-2(h}
provides as follow:
"The methane content of the air current in
the bleeder split at the point where such split enters any other
split should not exceed 2.0 volume per centum."
In essence, it i.s Petitioner's position that the MSHA Letter
of Appro,1al of January 31, 1989, CGx 7), informed Respondent that
all the criteria set forth in section 75.316-2, supra, are to be
complied with.
It is further maintained by Respondent that the
criteria set forth in section 316-2, supra, are mandatory, and
that a distri~t manager can not approve a ventilation plan without such criteria contained therein. Essentially, the only
authority relied on by Petitioner is United Mine Workers of
America, Int'l Union v. Dole, 870 F.2nd 662 CD. C. Cir. 1989).
Petitioner cites United Mirier Workers, supra, for the proposition, in essence, that the criteria in section 75.316, supra,
were properly incorporated in the ventilation plan by the
approval letter.
(Gx. 7).
Petitioner relies on United Mine
Workers, supra, for the proposition that the district managers do
not have the authority to approve ventilation plans without
incorporation of the criteria in section 75.316-2, and quotes the
following language from United Mine Workers, supra, at 670.
" . . • if the criteria were actually incorporated into an
approved plan, the Operator was bound to comply with them."
In general, the Commission has held that "In plan violation
cases the Secretary must establish that the provision alle~edly
violated is part of the approved and adopted plan and that the
cited condition or practice violates the provision."
(Jim Walter
Resources, Inc., 9 FMSHRC 903, at 907 (May 1987). For the
reasons that follow, I £ind that the Secretary has not met this
burden.

981

The main issue presented for resolution is whether the
criteria set forth in section 316-2Ch), can be incorporated
unilaterally by the Secretary into the Respondent's ventilation
plan along with all the criteria in section 75.316-2.
In Zeigler Coal Co. v. Kleppe, 536 F.2nd 398 (D. c. Cir.
the D. c. Circuit Court of Appeals held that violations
of requirements in ventilation plans that were not in themselves
promulgated as mandatory standards were nonetheless enforceable
under the 1969 Coal Act.
The Court reviewed the precise manner
in which mandatory standards are to be promulgated pursuant
section 101 of the 1969 Coal Act.4/ The Court concluded that the
context of the requirement for a ventilation plan in section 303
of the 1969 Act, the wording of which has been continued in
section 303 of the 1977 Act, amidst the other provisions of
section 303 which set out specific standards pertaining to mine
ventilation, " • • • further suggest that the plan idea was conceived for quite narrow and specific purpose."
(Zeigler, supra,
at 407.)
The Court, in Zeigler, supra, at 407, further stated
with regard to ventilation plans that they were " • • • not to be
used to impose general requirements of a variety well-suited to
all or nearly all coal mines, but rather to insure that there is
a comprehensive scheme for realization of the statutory goals in
the particular instance of each mine." The Court in Zeigler,
supra, recognized that ventilation plans " • • • appear to be
developed by informal negotiations between the Operator and the
Secretary's representative, without any pretense of compliance with
§ 101."
(Zeigler, supra, at 403.)
In this connection the Court
noted that although the plan must be approved by the Secretary,
" • • • it does not follow that he has anything close to unrestrained power to impose terms."
(Zeigler, supra, at 406).
1976),~/

In Carbon County Coal Company, 6 FMSMRC 1123, May (1984)
(Carbon County I) the Commission, in analyzing Zeigler, supra,
took cognizance of the notation by Carbon County that the Court
in Zeigler, supra, at 407, drew a distinction between a negotiated plan requirement "'suitable to the conditions and the mining
$ystem of the coal mine' and a provision of general nature not
based on the particular conditions at the mine, which the government sought to impose in the plan, but whicn 'should more properly
have been formulated as a mandatory sta.ndard' in conformity with
the rule making requirements of section 101 of the 1969 coal Act."
(Carbon County, I at 1125).
3/ In Zeigler, suora, which arose under the 1969 Coal Act,
30 U.S.C. § 801 et seq. (1976) (amended 1977), the Court construed section 303(0) of that Act.
This provision was retained
without change as 303(0) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et~· (1982) (The Act).
4; Section 101 of the 1969 Coal Act has been repeated in
section 101 of the Federal Mine Safety and Health Act 0£ 1977.

982

The Commission in Carbon County, I, supra, was presented
with the issue of whether MSHA's insistence on the inclusion in a
venti~ation plan of a provision, ~pposed by Carbon County, for a
volume of air more than "free discharge capacity," was proper.
The commission, in remanding to the trial judge to consider the
application of Zeigler, supra, specifically stated that it found
the discussion of Zeigler, supra, "persuasive and compelling,"
(Carbon County I, at 1127, and held that " • • • the general
principles enunciated in Zeigler apply to the ventilation plan
approval and adoption process under the Mine Act."
(Carbon
County, lr at 1127.) In Carbon Coal Company, 7 FMSHRC 1367
(September 1985), (Carbon Country, II), the Commission, at 1370,
analyzed the statutory system of the approval and adoption of
ventilation plans as follows:
The scheme for the approval and adoption of a mine
specific plan supplements the nationally applicable
safety and health rulemaking procedures.
The bilateral
approval-adoption process inherent in developing mine
specific plans results from cotlsultation and negotiation between MSHA and only the specifically affected
operator, whereas the nationally applicable standards
are the product of notice and comment rulemaking pursuant to section 101 of the Mine Act.
30 u.s.c. § 811.
Further, the scope of a mine specific plan is
restricted exclusively to the mine in which the plan
will be implemented, whereas a mandatory safety or
health standard applies across-the-board to all mines.
(Emphasis added).
The Commission, in Carbon County, II, supra, at 1370, noted
that the legislative history of the Act emphasizes the individual
nature of a illine 3pecific plan.
In this connection, the
Commission in Carbon County, II, supra, at 1370, quoted the
following language from the Sanate Committee on human resources,
which reported on the bill which became the Act:
"Such individually tailored plans, with a nucleus of commonly accepted
practices, are ti1e tne best method of regulating such compl.::x and
9otentially multifaceted problems as ventilation, roof control
and the like."
In Jim Walter Resources, Inc., supra, the Commission again
reiterated the bilateral process of the adoption of ventilation
plans as follows: "The approval and adoption process is bilateral,
a~d results in the Secretary and the Operator, through consultation, discussion, and negotiation, mutually agreeing to ventilation
plans suitable to the soecif ic conditions at particular mines.
Zeigler v. Kleppe, 536 F.2nd 398, 406-407 (D.C. Cir. 1976); Carbon
County Coal Company, 6 FMSHRC 1123 (May 1984)."
(Jim Walter,
supra, at 907).
Further, the Commission again indicated its view
wich regard to the "mine-specific" nature of a ventilation plan as
follows:
"The ultimate goal of the approval and adoption process
is a min2-specif ic plan with provisions understood by both the
Sacretary and the Operator, and in which they are in full accord."
(Jim Walter, supra, at 907.).
983

Dr~wing upon the principles set forth in Zeigler, supra,
Carbon County, !r supra, Carbon County, II, supra, and Jim Walter,
supra, I conclude that the criteria to be. set forth in a ventilation plan can not be unilaterally imposed by the Secretary.~/ I

~/

I do not find United Mine Workers,· supra, relied on by
Petitioner, to be dispositive of the issues raised herein.
In
United Mine Workers, supra, the Court was presented with the
issue as to whether the criteria by which the District Manager
will be guided in approving roof control plans on a mine-to-mine
basis, (30 C.F.R § 75.200-6), were mandatory, so as to require the
Secretary, in promulgating new replacement standards, to establish that the latter provide· at least the same level of protection
to miners as the old regulations.
In holding in the affirmative,
it clearly was not necessary for the Court to entertain the issue
presented herein, i.e., whether all criteria by which District
Managers will be guided in approving a ventilation plan on a
mine-to-mine basis, are to be incorporated into the ventilation
plan of an individual mine in the absence of any proof that the
criteria are to address specific problems at the mine. As such,
the Court's comments in United Mine Workers, suora, at 670, that a
plan could be approved only if it conforms to the general criteria
of the Regulations (30 C.F.R. § 75.200-6) are clearly dicta.
Similarly, the rejection by the Court, in United Mine Workers,
suora, of the Operator's argument that a plan for roof support can
only impose those requirements necessary to address unique conditions peculiar to each mine, does not appear necessary to a
disposition of the issues before it, as that particular issue did
not have to be adjudicated.
Further, in this connection, it is
noted that United Mine Workers, suora, took cognizance, at 667,
of the fact that the contents of any plan are " • • • determined
through consultation between the·mitie operator and the District
Manager." Also, the Court specifically noted Zeigler, supra, and
did not overrule it.
In this connection, the Court interpreted
Zeigler, supra, as saying 11 • • • only that the Secretary could
abuse her discretion by utilizing plans rather than explicit
mandatory standards to impose general requirements if by doing
so, she circumvented procedural requirements for establishing
mandatory standards laid down in the Mine A.ct. 11
(United Mine
Workers, supra, at 671.) Further, the Court in United Mine
Workers, supra, at 672, found Carbon County, II, supra, to be
consistent with its interpretation of Zeigler, supra, although it
rejected the argument that under either Carbon County, II, supra,
or Zeigler, supra, the Secretary " • . • was in a plan precluded
from requiring mine operators to incorporate measures necessary
to achieve an overall level of miner protection on all pertinent
aspects of roof control." ·rhe Court, in United Mine Workers,
supra, at 672, concluded that Carbon County, II, suora, as
Zeigler, supra, did no more than set out a 11 • • • warning that
(continued on page 11)

984

further conclude that various criteria are not to be included in
a ventilation plan unless it is established that they are to
address a specific problem at the.mine in question.
In the
instant case, not only is the Secretary attempting to
unilaterally impose a requirement upon Respondent in its
ventilation plan, but it has not established that the requirement
would address a specific problem at Respondent's mine, thus
making it mine specific. To the contrary, it appears to be
MSHA's policy, as indicated by the testimony of Samuel J.
Brunatti, an MSHA Ventilation Specialist, to include the approval
language in question in approvals of mine ventilation plans in
District Two.
As such, it would appear that tha requirement by
MSHA for Respondent, in its plan, to comply with the criteria in
75.316 to have been the result of a rote application of
District Two's policy and not based upon particular conditions at
Respondent's mine (See, Jim Walter, supra, at 1373). I thus
conclude that the criteria set out in 30 C.F.R. § 75.316(2)(h)
are not to be incorporated into Respondent's ventilation plan.
As such, it has not been established that Respondent violated any
of. the terms of its ventilation ~lan.
Accordingly, Citation
No. 2891246 should be dismissed._/

(Footnote 5 Continued)
the Secretary should utilize mandatory standards for requirements
for universal application." Thus, I conclude that United Mine
WorKers, supra, does not mandate that the principles enunciated
in Zeigler, supra, as found persuasive by the Commission in
Carbon County, l and II, supra, and followed in Jim Walter,
supra, as discussed above, infra, should not be applied in the
case at bar.
~/ At the hearing, Respondent's Counsel indicated that
Respondent was not contesting the Imminent Danger Withdrawal
Order, No. 2891345 which had oeen issued on March 14, 1989.
Although it has been decided herein, infra, that there was no
violation of section 75.316, suora, the finding of imminent
danger w~s also predicated upon conditions which constituted a
violation ot section 75.301, which have been established,
(infra, I,A.}.
As such it is concluded that the issuance of the
Withdrawal Order is sustained.

985

ORDER
It is ORDERED that. Citation No. 2891346 be DISMISSED. It is
further ORDERED that .Order No. 2891345 was properly issued. It
is further ORDERED that Respondent, within 30 days of this
Decision, shall pay $100 as a civii penalty for the violation
found herein. It is further ORDERED that Citation No. 2891347 be
AMENDED to reflect the fact that the violation therein was not
·significant and substantial.

~~

Avram Weisberger
Administrative Law Judge

Distribution:
Thomas A. Brown, Esq., Office of the Solicitor, u. s. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 CCertif ied Mail>
R. Henry Moore, Esq., Buchanan Ingersoll,· 600 Grant Street,
58th Floor, Pittsburgh, PA 15219 (Certified Mail>
dcp

986

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

· MAY 3 1990"
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
· Petitioner
v.

CIVIL PENALTY PROCEEDING

...

Docket No. WEVA 89-274
A.C. No. 46-05682-03505
Ward Mine

TEN-A-COAL COMPANY,
Respondent
DECISION
Appearances:

Javier I. Romana ch.,· :Esq• , · U .S • Department of
Labor, Office of the Solicitor, Arlington,
Virginia, for the Pet~tioner;
Harold S. Yo!::-tt, Esq., Bridgeport, West Virginia,
for the Respon.dent.
·

Before:

Judge Maurer

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor (Secretary) pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801, et seq., the "Act", charging Ten-A-Coal Company
(Ten-A-Coal) with two violations of the regulatory standards
found in 30 C.F.R. Part 77.
Pursuant to notice, this case was heard in Morgantown, West
Virginia on January 9, 1990. Subsequently, the parties have
filed post-hearing proposed findings and conclusions which I have
considered along with the entire record in making this decision.
STIPULATIONS
At the hearing, the parties stipulated to the following,
which I accepted (Tr. 7-8):
1. The Administrative Law Judge has jurisdiction to hear
and decide this case.
2.
Inspector James A. Young was acting in his official
capacity as a federal coal mine inspector on May 3rd, 1989, when
he issued§ 104(a) Citation No. 2944252 and§ 104(d)(l) Citation
No. 2944253.

987

3. Citation o. 2944252 and Citation No. 2944253 were
properly served to Respondent's agents.
4. Abatement of the condition cited in the listed citations
was timely.
5. The combined proposed penalty of $800 will not adversely
affect the Respondent's ability to continue in business.
6. The respondent does not dispute the facts on the
proposed assessment data sheet (GX-8).
DISCUSSION WITH FINDINGS
Citation No. 2944252, issued pursuant to section 104(a) of
the Act, charges a violation of the standard at 30 C.F.R.
§ 77.1004(b) and alleges as follows:
A proper examination and subsequent action taken was
not being performed on the 001 pit on the Ward mine
site. An unsafe ground condition was observed in the
high wall of the 001 coal pit, and coal was being
loaded from this pit. The condition was observed by
the operator and no action was taken other than loading
coal.
An unsafe condition in relation to safe work areas

shall be corrected promptly or the area effected shall
be posted. The pit was examined and no action taken to
remove or post.
Citation No. 2944252 was issued as a section 104(a) citation
on May 3, 1989, by MSHA Inspector James A. Young. The violative
condition was abated by the operator to his satisfaction and
Inspector Young terminated the citation at 12 noon on May 3, 1989.
Later that day, Inspector Young went back to his office,
discussed the conditions surrounding the citation with his
supervisor and decided the conditions met the criteria for an
unwarrantable failure. ·rherefore, the next day, May 4, 1989,
Inspector Young modified the previously terminated Citation No.
2944252 to a section 104 Cd><l> order.
I find and conclude that the attempted modification cannot
stand. The inspector no longer had the authority to modify the
citation after he had terminated it. Once a citation is no
longer in effect because it has been terminated, it cannot be
modified. See: Old Ben Coal Co., Docket No. VINC 76-56
(June 15, 1976) (ALJ Sweeney), Appeal dismissed, IBMA 76-104
(October 19, 1981).

988

Citation No. 2944253; issued pursuant to section 104(d)(l)
of the Act, charges a violation of the standard at 30 C.F.R.
§ 77.1000 and alleges as follows:
The established ground control plan for the Ward mine
001 pit was not being complied with; in that, the high
wall above this pit was not scaled back from the edge
of the wall and all loose material was not removed. A
required bench of 20' width was not present along the
highwall above the working pit. Loose clay material
was above the wall with mud mixed and water passing
through this material and running into the pit. The
bench provided on the highwall was only 10' and
partially filled in with the clay material. Old
entries were being crossed from an underground mine and
part of the highwall had collapsed with only a 5'
barrier left between the bench and the fall.
The wall
was straight up on one side without any bench present
for over 40'.
There is no dispute concerning the fact that on May 3, 1989,
a required bench with a width of 20 feet was not present along
the highwall above the working pit in violation of the ground
control plan.
The pit foreman was a Mr. Eubank and Inspector Young
observed him on the day in question operating a backhoe, loading
a coal truck in the bottom of the pit. At that time, Young also
observ~d the highwall and noticed that it was not scaled back.
Old underground entries from an underground mine were being
crossed and part of the highwall had collapsed with a 5-foot
barrier left between the bench and the wall. The wall was
straight up on one side with out any bench 'present for over forty
feet.
There had be.en four or .five days of steady rain prior to
this date and, due to the poor condition of the highwall, loose
clay material, including rocks, was slipping over the highwall
and running into the pit. Eubank admitted to Young that he had
been aware of the condition of the highwall, yet he had continued
to operate the backhoe because he needed to get the coal out of
there.
The widest part of the bench was ten feet, but it got down
to seven to eight feet in various locations. The highwall itself
was in excess of sixty feet high.
According to the ground
control plan, the bench was required to be twenty feet wide~
Inspector Young issued section 104(d)Cl) Citation
No. 2944253 for a violation of 30 C.F.R. § 77.1000 because the
established ground control plan for the Ward Mine 001 pit was not

989

being complied with - the highwall above the pit was not scaled
back from the edge of the wall and a required bench of twenty
foot width was not present along the highwall above the working
pit.
I find that violation to have been proven as charged.
A "significant and substantial" violation is described in
section 104Cd>Cl) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d)(l). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove:
Cl> the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a
measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have e~plained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d)(l), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial.
U.S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75
(July 1984).

990

The question of whether any particular violation is
significant and substantial must be based on the particular
facts surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Inspector Young testified that due to the condition of the
highwall and the lack of size of the bench a discrete hazard was
created, "[t]here was water in the pit; there was falling
material of varying size, some of it large, some of it very
heavy; there was silt; there was water coming over the side of
the wall which was continually deteriorating the condition of the
wall."
(Tr. 23).
Young's testimony demonstrates that there was
a reasonable likelihood that the hazard contributed to would
result in an injury.
"It was very likely [that somebody could
have been struck by the falling rock, mud, etc.] because we stood
there and watched it fall. We were observing it fall the whole
time we were there."
(Tr. 34). Finally, Young's testimony shows
that there was a reasonable likelihood that the injury in
question would be of a reasonably serious nature.
"We have
documented records in our agency of fatalities from highwalls
collapsing and rocks coming over the top."
(Tr. 24). Young's
testimony regarding these matters is uncontradicted, very
credible and I do credit it fully.
The Secretary also urges that I find this violation to be an
"unwarrantable failure".
In several relatively recent decisions concerning the
interpretation and application of the term "unwarrantable
failure," the Commission has further refined and explained this
term, and concluded that it means "aggravated conduct,
constituting more than ordinary negligence, by a mine operator in
relation to a violation of the Act." Emery Mining Corporation,
9 FMSHRC 1997 (December 1987); Youghiogheny & Ohio Coal Company,
9 .FMSHRC 2007 (December 1987); Secretary of Labor v. Rushton
Mining Company, 10 FMSHRC 249 (March 1988). Referring to its
prior holding in. the Emery Mining case, the Commission stated as
follows in Youghiogheny & Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is conduct that is
"inadvertent," "thoughtless" or "inattentive,"
unwarrantable conduct is conduct that is described as
"not justifiable" or "inexcusable." Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more than ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.

991

There is no question that the operator's actions constituted
aggravated conduct. The foreman was aware of the hazardous
conditions of the highwall and the bench but made no effort to
correct the obvious conditions.
Instead, the foreman himself
proceeded to work directly under the highwall and exposed himself
and the driver of the truck to the risk of death or serious
injury.
Citation No. 2944253 will be affirmed in its entirety.
Furthermore, considering the entire record and the criteria in
section llOCi) of the Act, a civil penalty of $400, as proposed,
will be assessed as appropriate to the violation and special
findings.
On the same day Inspector Young also issued section 104(a)
Citation No. 2944252 for a violation of 30 C.F.R. § 77.1004Cb)
because the operator, after observing the above described
conditions surrounding the 001 pit on May 3, 1989, did not
correct these conditions nor did he post the area.
It is also undisputed that the unsafe conditions of the
highwall and the pit were not corrected promptly or posted as
required by section 77.1004(b). Accordingly, that standard was
violated.
Inspector Young's unrebutted testimony demonstrates to me
that the operator's failure to promptly correct the hazardous
conditions at the highwall or to post the area exposed miners to
the hazards of falling rocks and mud. Young found Eubank and a
coal truck driver working directly under the highwall. Young's
testimony also establishes that it was reasonably likely that the
hazard contributed to would result in an injury by falling rock.
Young observed rocks falling into the pit near Eubank and the
truck driver. Finally, Young's testimony establishes the
reasonable likelihood that any injury suffered from the falling
rocks was likely to be fatal or at least produce a serious injury.
Therefore, I find this violation to be significant and
substantial as well. Mathies Coal Co., supra.
For the reason stated earlier in this opinion, the purported
order will thus be affirmed as an "S&S" section 104(a) citation.
Considering the criteria in section llO(i) of the Act and
the entire record herein, along with the arguments of the
parties, I find that an appropriate civil penalty for this latter
violation is $200.

992

ORDER
1.

Section 104(d)(l) Citation No. 2944253 is AFFIRMED.

2. Section 104Ca) Citation No. 2944252, unsuccessfully and
without effect modified to a Section 104Cd)(l) Order, is AFFIRM.ED
as an "S&S" section 104Ca) Citation.
3. Ten-A-Coal Company is ordered to pay the sum of $600
within 30 days of the date of this decision as a civil penalty
for the violations found herein.

Distribution:
Javier I. Romanach, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd. Rm., 516, Arlington, VA 22203
(Certified Mail)
Harold S. Yost, Esq., 126 W. Main Street, Bridgeport, WV
(Certified Mail)
/ml

993

26330

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE-LAW JUDGES
COLQNNADE CENTER
;
ROOM 280. 1244 SPEER BOULEVARD.
' DENVER. CO 00204 . .

. MAY 4. \990
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 89-317-M
A.C. No. 04-04602-05515

v.

Docket No. WEST 89-360-M
A.C. No. 04-04602-05516

CALIFORNIA LIGHTWEIGHT
PUMICE, INC.,

Docket No. WEST 89-394-M
A.C. No. 04-04602-05520

Respondent~

Docket No. WEST 90-21-M
A.C. No. 04-04602-05521
Battle Mountain
DECISION
Appearances:

Nancy E. Resnick, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California,
for Petitioner;
Mr. L. Kenneth Teel, President, California Lightweight Pumice, Inc., Capistrano Beach, California,
for Respondent.

Before:

Judge Morri~ .

t ·~,,;

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges respondent with violating
safety regulations promulgated under the Federal Mine Safety and
Health Act, 30 U.S.C. § 801, et seg. (the ACT).
After notice to the parties, a hearing commenced in Las
Vegas, Nevada, on January 9, 1990. The cases involved in the
hearing were Docket Nos. WEST 89-317-M, WEST 89-360-M, and WEST
89-394-M.
. '
At the close of the hearing, respondent requested that it be
permitted to present evidence as to its financial condition.
In
view of respondent's request, the hearing was reset to April 10,
1990. Subsequently, Docket No. WEST 90-21-M, a newly assigned
case, was also set for a hearing on said date.

994

Prior to the hearing, the parties reached an amicable
settlement. ·under the terms of the settlement agreement,
respondent agrees to pay the penalties originally assessed by the
Secretary. The citations and the original assessments are as
follows:
Docket No. WEST 89-317-M
Assessments

Citation No.
3286884
3069863
3069864
3069866

$

TOTAL

84.00
300.00
500.00
300.00

$1,184.00
Docket No. WEST 89-360-M

3286892

$

450.00

Docket No. WEST 89-394-M
$

3463508
3463509
3463510
3463511
3463512
3463513
TOTAL

500.00
46.00
20.00
150.00
400.00
400.00

$1;516.00
Docket No. WEST 90-21-M

3463959
3462890
3462891
3462893
3443076
3443783

$

TOTAL

600.00
600.00
68.00
50.00
500.00
400.00

$2,218.00

995

In support of their motion to approve the settlement, the
parties have submitted information relating to the statutory
criteria for assessing penalties as contained in 30 u.s.c.
§ 820(i).
I have reviewed the proposed settlement and I find it is
reasonable and in the public interest. It should be approved.
Accordingly, I enter the following:
ORDER
1.

The settlement agreement is approved.

2.
The foregoing citations and proposed penalties are
affirmed.

3.
Respondent is ordered to pay to the Secretary the sum of
$5,368.00 within 60 days of the date of this decision.

Law Judge
Distribution:
Nancy E. Resnick, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA
94105-2999
CCertif ied Mail)
L. Kenneth Teel, President, California Lightweight Pumice, Inc.,
35541 Camino Capistrano, Capistrano Beach, CA 92624
(Certified Mail)

/ek

996

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

MAY 301990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
· Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 89-317~M
A.C. No. 04-04602-05515

v.

·Docket No. WEST 89-360-M
A.C. No. 04-04602-0551&

CALIFORNIA LIGHTWEIGHT
PUMICE, INC.,
Respondent

Docket No. WEST 89-394-M
A.C. No. 04-04602-05520
Docket No. WEST 90-21-~
A.C. No. 04-04602-05521
Battle Mountain

MOTION TO AMEND DECISION
Comes now John J. Morris, Administrative Law Judge, pursuant
to Cornmision Rule 65(c), 29 C.F.R. § 2700.65(c), and states as
follows:
1. The decision herein was issued on May 4, 1990, and the
Commission has not directed the decis.ion for rev,iew.
2.
On May 21, 1990, petitioner moved that the decision be
amended to include in WEST 89~317-M the settlement of Citation
No; 3069865 and the penalty ~herefor of $400.00.
3. Petitioner states the Said citation was omitted due to
inadvertent clerical error.
4. Petitioner alleges respondent has stipulated to the
correction of this omission.
Further, the judge notes that the
correction in this motion follows the disposition of the other
17 citations.
5. An amended decision is attached which incorporates
Citation No. 3069865 with a penalty of $400.
The total adjusted
penalty is $5,768.00.

Law Judge

997

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

MAY 301990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA'rION. (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 89-317-M
A.C. No. 04-04602-05515

v.

Docket No. WEST 89-360-M
A.C. No. 04-04602-05516

CALIFORNIA LIGHTWEIGHT
PUMICE, INC. ,
Respondent

Docket No. WEST 89-394-M
A.C. No. 04-04602-05520
Docket No. WEST 90-21-M
A.C. No. 04-04602-05521
Battle Mountain

AMENDED DECISION
Appearances:

~ancy E. Resnick, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California,
for Petitioner;
Mr. L. Kenneth Teel, President, California Lightweight Pumice, Inc., Capistrano Beach, California,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges respondent with violating
safety regulations promulgated under the Federal Mine Safety and
Health Act, 30 u.s.c. § 801, et seq. (the Act).
After notice to the parties, a hearing commenced in Las
Vegas, Nevada, on January 9, 1990. The cases involved in the
hearings were Docket Nos. WEST 89-317-M, WEST 89-360-M, and WEST
89-394-M.
.
At the close of the hearing, respondent requested that it be
permitted to present evidence as to its financial condition.
In
view of respondent's request, the hearing was reset to April 10,
1990. Subsequently, Docket No. WEST 90-21-M, a newly assigned
case, was also set for a hearing on said date.

998

Prior to the hearing, the parties reached an amicable
settlement. Under the terms of the settlement agreement,
respondent agrees to pay the penalties originally assessed by the
Secretary. The citations and the original assessments are as
follows:
Docket No. WEST 89-317-M
Assessments

Citation No.

$

3286884
3069863
3069864
3069865
3069866

84.00
300.00
500.00
400.00
300.00

$1,584.00

TOTAL

Docket No. WEST 89-360-M
$

3286892

450.00

Docket No. WEST 89-394-M
$

3463508
3463509
3463510
3463511
3463512
3463513

.

500.00
46.00
20.00
150.00
400.00
400.00

$1,516.00

TOTAL

Docket No. WEST 90-21-M
$

3463959
3462890
3462891
3462893
3443076
3443783

600.00
600.00
68.00
50.00
500.00
400.00

$2,218.00

TOTAL

999

In support of their motion to approve the settlement, the
parties have submitted information relating to the statutory
~riteria for assessing penalties as contained in 30 u.s.c.
§ 820(i).

I have reviewed the proposed settlement and I find it is
reasonable and in the public interest. It should be approved.
Accordingly, I enter the following:
ORDER
1.

The settlement agreement is approved.

2. The foregoing citations and proposed penalties are
affirmed.
3.

Respondent is ordered to pay to the Secretary the sum of

$5,768.00 within 60 days of the date of this amended decision.

Law Judge
Distribution:
Nancy E. ~esnick, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA
94105-2999 -(Certified Mail)
L. Kenneth Teel, President, California Lightweight Pumice, Inc.,
35541 Camino Capistrano, Capistrano Beach, CA 92624
CCertif ied Mail)

/ek

1000

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

MAY 7 \990
CONTEST PROCEEDING

BEAVER CREEK COAL COMPANY,
Contestant

Docket No. WEST 88-191-R
Citation No. 3225156

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

Trail Mountain Mine No. 9
Mine ID 42-01211

..

CIVIL PENALTY PRoCEEDING
Docket No. WEST 88-319
A.C. No. 42-01814-03517
Trail Mountain No. 9

v.
BEAVER CREEK COAL COMPANY,
Respondent
DECISION
Appearances:

Robert J. Murphy, Esq., Office of the Solicitor,.
U.S. Department of Labor, Denver, Colorado,
for Petitioner/Respondent;
David M. Arnolds, Esq., Thomas F. Linn, Esq.,
Beaver Creek Coal Company, Denver, Colorado,
for Contestant/Respondent.

Before:

Judge Cetti
Statement of the Proceeding

These consolidated proceedings concern a Notice of Contest
filed by the Contestant, Beaver Creek, pursuant to section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 815(d), challenging the captioned citation issued by MSHA.
The
civil penalty proceedings concern proposals for assessments of
civil penalties filed by MSHA seeking assessments against Beaver
Creek for the alleged violation stated in the citation.
After notice to the parties, the matter came on for hearing
on the merits before me at Salt Lake City, Utah. Oral and documentary evidence was introduced, post-hearing briefs were filed,
and the matters were submitted for decision.
I have considered
the arguments made on the record during the hearing in my adjudication of these matters and the post-hearing briefs filed by the
parties.

1001

ISSUES
1. Whether the condition and practice cited by the inspector constitutes a violation of 30 C.F.C. 75.1704 by Beaver Creek.
2.
If the alleged violation occurred, was it a "significant
and substantial" violation.
3.
If a violation occurred, what is the appropriate penalty, in view of the statutory civil penalty criteria at Section
llO(i) of the Act.
STIPULATIONS
The parties have agreed to the following stipulations, which
I accept:
1. Beaver Creek Coal Company is engaged in mining and
ing of coal in the United States, and its mining operations
affect interstate commerce.

sell~

2. Beaver Creek Coal Company is the owner and operator of
Gordon Creek No. 7 Mine, MSHA I.D. No. 42-01814, an underground
coal mine.
3. Beaver Creek Coal Company is subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 821, et seq. ("the Act").
4.
matter.

The Administrative Law Judge has jurisdiction in this

5. The exhibits to be offered by Beaver Creek Coal Company
the Secretary are stipulated to be authentic, but no stipulation is made as to their relevance or to the truth of the matters asserted therein.
a~d

6. The proposed penalty will not affect Beaver Creek Coal
Company's ability to continue business.
7. Beaver Creek Coal Company demonstrated good faith in
abating the violation.
8. Beaver Creek Coal Company is a medium-size mine operator
which had 537,321 tons of coal production in 1987.
9. The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the past
two years prior to the date of the citation.
(Joint Ex. 1)
1002

Citation No. 3225156:
Federal Coal Mine Safety and Health Inspector Larry W. Ramey
made a Triple A inspection of Beaver Creek's underground coal
Mine, Gordon Creek No. 7. The inspector cited Beaver Creek for
the alleged violation of 30 C.F.R. § 75.1704. This mandatory
regulation essentially restates section 317Cf)(l) of the Mine
Act, 30 u.s.c. § 877(f)(l) and provides:
§ 75.1704 Escapeways

(Statutory Provisions)
Except as provided in §§ 75.1705 and 75.1706, at least
two separate and distinct travelable passageways which
are maintained to insure passage at all times of any
person, including disabled persons, and which are to be
designated as escapeways, at least one of which is ventilated with intake air, shall be provided from each
working section continuous to the surface escape drift
opening, or continuous to the escape shaft or slope facilities to the surface, as appropriate, and shall be maintained in safe condition and properly marked. Mine openings shall be adequately protected to prevent the entrance
into the underground are of the mine of surface fires,
fumes, smoke, and floodwater.
Escape facilities approved
by the Secretary or his authorized representative, properly maintained and frequently tested, shall be present
at or in each escape shaft or slope to allow all persons,
including disabled persons, to escape quickly to the surface in the even of an emergency.
(Emphasis added.)
Inspector Ramey, in Citation No. 3225156, described the
alleged violative condition he observed as follows:
The alternate escapeway belt entry, located in first
south active section, and main conveyor belt entry was
not being maintained in the condition to allow all persons, including disabled persons, to escape quickly to
the surface in the event of an emergency. The following
conditions did not comply with 75.1704-lA, location as
follows:
First south number one undercast, number nine
crosscut, outby step platform to belt sixty-two inches
wide, inby steps to belt sixty-two inches wide. Undercast number eight, crosscut, inby step sixty-nine inches
wide to belt, outby steps sixty-nine inches to belt.

1003

Number three, distance from eight undercast to main belt
line approximately thirty feet in length, the width between the coal rib and the belt line and belt drive is
fifty-two inches to forty-four inches in width. Number
four, the crossunder the main belt is sixty inches wide
by twenty-four and a half inches high.
This condition is
where the first south belt dumps on to the belt line. NumNumber five, main belt line belt check stoppings located
located at number four overcast, two steel doors installed
on each wall forty inches wide by sixty-three inches high.
Number six, number one crosscut belt checks stopping steel
door forty inches wide by sixty-three inches high. Number
seven, steel located at mouth of entry, outside entrance,
ninety-three inches high by forty-eight inches wide~ see
diagram below, not to scale.
Inspector Ramey, after reviewing the Gordon Creek mine map,
determined that the main intake was the primary escapeway and the
section belt line was the alternate escapeway. He went underground, accompanied by the mine's general foreman, John Perla, to
inspect the first south working section. While walking the belt
line outby, the inspector noted the seven different obstructions
described in the citation he issued to Beaver Creek. Each of
these cited obstructions were measured by both. Inspector Ramey
and Foreman Perla. These measurements were not disputed.
Inspector Ramey testified that the most serious obstruction
was the crossunder the main belt at the place where the first
south belt dumps onto the main belt line. He testified that to
travel the escapeway at that area "you had to literally get down
and crawl underneath the main belt to get on the other side of
the main belt to continue on down toward the outside."
To travel the escapeway, the miner is required to crawl a
distance of 4.5 feet under this obstruction with only a 24.5-inch
clearance from the mine floor to the bottom of the main belt line.
The Secretary points out that, in addition to the 24.5-inch
high crossunder the main belt, there are the other cited conditions in the alternate escapeway which included undercasts [items
Cl) and (2) in the citation] which required miners traveling this
escapeway to ascend and descend steps after crossing platforms
built over the undercasts and with a wide clearance between the
coal rib and the belt drive which narrowed to only 44 inches.
(No. 3 in the citation).
However, as Beaver Creek points out in its brief, Inspector
Ramey's testimony was clear that he considered only one point
in the escapeway, the crossunder at the main belt, designated as

1004

No. 4 in the citation, to be an actual obstruction to passage and
that he cited the other six points only because they did not meet
the criteria of Section 75.1704-l(a). For instance, Mr. Ramey
stated that, if the 69-inch wide steps at the No. 8 crosscut had
been three inches wider, he would not have cited them, yet the
three inches would have had "no bearing, very little effect," on
the ability of men to pass. Mr. Ramey further agreed that the
doors he cited at points 5, 6, and 7 allowed one person to pass
fairly easily and that he cited them only because they failed to
meet the criteria of Section 75.1704-l(a). Mr. Ramey confirmed
that the crossunder was his only concern as follows:

Q.

And do I understand your testimony that this is the one
hazard in the citation that you recognized as an obstruction~ that is, that miners would have to get down and crawl
under [the crossunder] on their way up?

A.

That's correct.

Mr. Ramey repeated this a short time later.

Q.

Is it your testimony then, in essence, that the one obstruction was in the escapeway, which was the crossunder, and
that the other points were cited because of the violation or
the lack of compliance with 1704-l(a).

A.

30 CFR § 75.1704 was cited because of the 24.5-inch space
that you had to get down and crawl through.
The other areas
mentioned here were cited because the law states that the
District Manager has to approve that escapeway if an operator installs that or it should be approved by the District
Manager.
In my opinion, these guidelines were set out, were
tested that this was the most economical and feasible way,
due to the width and height, to quickly allow persons to
escape out of an area.

In Secretary of Labor v. Utah Power & Light Co., No. WEST
No. 87-211-R, et al., 11 FMSHRC 1926 (October 27, 1989), the
commission hela---that the criteria set forth in 30 CFR
75.1704-l(a) aren't mandatory requirements, and the proper test
for adequacy of escapeways is whether they are "maintained to
insure passage at all times of any person, including disabled
persons," as provided in 30 CF"R 71.1704.
The panel said that 30 CFR 75.1704 establishes a "general
functional test" of "passability" and doesn't impose upon operators any obligation to seek MSHA's prior approval for their
escapeways.

1005

The commission explained in footnote No. 5, that the term
"passability" as used in the decision, was as an abbreviated
expression for the phrase in section 75.1704, "maintained to
insure passage at all times of any personi including disabled
persons."
Inspector Ramey's testimony that Section 75.1704 "was cited
because of the twenty-four and one-half-inch (height of the
undercross of the main belt) that you had to get down and crawl,"
makes it clear that the real issue is whether a 24.5-inch high
cross-under of the 48-inch wide main belt would insure passage at
all times of any person, including a disabled person.
The indeinspector was clearly of the opinion that it did not. Upon
independent review and evaluation of all the evidence, I agree
with Inspector Ramey's opinion.
Based upon the undisputed measurements and the credible testimony of Inspector Ramey, I find that the 24.5-inch height of
the 4.5-foot long undercross of the main belt is a hindrance that
would not insure the passage at all times of any person including
disabled persons, particularly in a disaster-type situation where
the entry could be filled with smoke.
I find that the evidence is insufficient to conclude that
the violation was significant and substantial in nature.
The
reasons are given below.
Beaver Creek states that 'its only means of abating the citation was to designate the return entry as the alternate escapeway.
However, in Beaver Creek's opinion, the belt entry with its
necessary obstructions was safer than the return. Beaver Creek .
gave four reasons for its opinion: 1) all smoke is vented to the
return; 2) the belt itself provides a guide to follow in smoke
while there is none in the return; 3) the return entry was longer
than the belt entry; and 4) the return had seven turns at which
miners could get lost in smoke. Beaver Creek asserts, therefore,
that miners are more likely to get lost in the smoke in the
return than they would in the belt entry.
Several months after the citation was issued, Beaver Creek
performed and photographed (Exhibits 4A through 4E) a test used
by MSHA for granting variance from the Section 75.1704-l(a) criteria.
The test consisted of two men carrying a third man on a
stretcher through all points at issue. John Perla, the mine's
general foreman, took part in the test and testified that the
test demonstrated that all the cited points could be passed
without difficulty. He stated that they had no difficulty in

1006

going through the (main belt) crossunder and that, although they
were slowed .down somewhat, the delay was "maybe seconds" but not
"anything measurable." The belt was protected along each side by
a rope and underneath by a guard. Beaver Creek also presented
evidence that the condition cited 1) had existed for years;
2) had been inspected many times without citation; and 3) in
Beaver Creek's opinion, was safer than the alternatives it had.
Beaver Creek contends that there was no violation and, even
if there was one, it could not be found negligent for the abovestated reasons. Beaver Creek's contention that it was not negligent is rejected. Even assuming arguendo, negligence on the part
of the enforcing agency, that negligence does not excuse an operator's negligence, nor does it preclude a finding of negligence
for Beaver Creek's failure to fulfill its responsibility under 30
CFR § 75.1704. This failure was due to the operator's lack of
due diligence and indifference, which is ordinary negligence.
There is merit, however, in Beaver Creek's assertion that
the violation was not significant and substantial.
A violation is properly designated "significant and substantial" if, based on the particular facts surrounding that violation, there exists a reasonble 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, 815 (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 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 reasonable serious
nature.
Accord, Austin Power v. Secretary of Labor, 861 F.2d 99, 103 (5th
Cir. 1988).
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,"

1007

and that the likelihood of injury must be evaluated in terms of
terms of continued normal mining operations. U.S. Steel Mining
Co., 6 FMSHRC 1573, 1574 (July 1984). See also Monterey Coal
Co., 7 FMSHRC 996, 1001-02 (July 1985). The operative time frame
for determining if a reasonable likelihood of injury exists includes both the time that a violative condition existed prior to
the citation and the time that it would have existed if normal
mining operations had continued. Halfway, Inc., 8 FMSHRC 8, 12
(January 1986>1 U.S. Steel ~ining Co., 7 FMSHRC 1125, 1130
(August 1985). The question of whether any particular violation
is significant and subtantial must be based on the particular
facts surrounding the violation, including the nature of the mine
involved. Texasgulf, Inc., 10 FMSHRC 498, 500-01 (April 1988)1
Youghiogheny & Ohio Coal Company, 9 FMSHRC 1007, 2011-12 (December 1987). Finally, the Commission has emphasized that it is the
contribution of a violation to the cause and effect of a hazard
that must be significant and substantial. U.S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984).
Under this precedent and based upon my independent review
and evaluation of all the evidence, including the testimony of
Mr. Perla, the mine foreman, I find the evidence presented is
insufficient to establish that Beaver Creek's violation was significant and subtantial in nature. In partic~lar, with regard to
the third and tourth elements of the Mathies test, I find the
evidence presented fails to show a reasonable likelihood that the
hazard contributed to will result in an injury of a reasonable
serious nature. See Rushton Mining Co. v. Secretary of Labor,
No. PENN 88-99-R 11 FMSHRC 1432, 1437.
(August 24, 1989).
Civil Penalty
Section llO(i) of the Act mandates consideration of six
criteria in assessing a civil penalty. In compliance with the
mandate, I have considered the following:
The parties stipulated the operator's business was of medium
size. The mine produced 537,321 tons of coal the year prior to
the issuance of the citation.
The parties stipulated that the proposed penalty would not
adversely affect Beaver Creek's ability to continue in business.
Exhibit JE-1, a computer printout, indicated that within the
last two years Beaver Creek was assessed 20 violations.
I find the operator's negligence to be moderate. The company should have known that the 24.5-inch height of the underpass
of the main belt does not comply with the mandate of the cited
safety standard.
1008

The gravity was high. A miner or a disabled miner attempting to escape during an emergency situation could have been
seriously impeded.
The company demonstrated good faith in rapidly abating this
violative condition.
Everything considered, ! find tht a civil penalty of $160 is
appropriate for this violation.
ORDER
1. Citation No. 3225156 is modified to delete the characterization "significant and substantial" and, as modified, the
citation is affirmed.
2. Contest Proceeding Docket No. WEST 88-191-R is
dismissed.
3. Beaver Creek Coal Company is ordered to pay the sum of
$160 within 30 days of the date of this decision as a civil
penalty for the violation found herein.

"~·

F. Cetti

Law Judge

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)
David M. Arnolds, Esq., Thomas F. Linn, Beaver Creek Coal Company, 555 Seventeenth Street, 20th Floor, Denver, CO 80202
(Certified Mail)

/ek

1009

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

MAY 8 1990
THOMAS F. HEFNER, JR.,
Complainant

DISCRIMINATION PROCEEDING
Docket No. CENT 90-62-DM

v.
MD 89-121
TEXAS LEHIGH CEMENT COMPANY,
Respondent

ORDER OF DISMISSAL
Before:

Judge Maurer

The Complainant, Thomas F. Hefner, Jr., requests approval
to withdraw his complaint in the captioned case. He no longer
desires a hearing concerning this matter. Under the circumstances herein, permission to withdraw is granted, and the case
is therefore dismissed.

Distribution:
Mr. Thomas Francis Hefner, Jr., 206 Pin Oak Drive, Buda, TX
78610
(Certified Mail)
Brian S. Greig, Esq., Elizabeth Collum, Esq., Fulbright &
Jaworski, 600 Congress Avenue, Suite 2400, Austin, TX 78701
(Certified Mail)
/ml

1010

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

MAY 8 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 90-5-M
A.C. No. 15-00099-05514

v •.

Strunk Crushed Stone
HINKLE CONTRACTING CORP.,
Respondent
DECISION
Appearances:

Before:

Anne T. Knauff, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee
for Petitioner;
Robert M. Connolly, Esq., Stites & Harbison,
Louisville, Kentucky for Respondent.

Judge Melick

This case is before me upon remand by the Commission on
April 4, 1990, to consider the parties' post-hearing briefs
and to reevaluate the decision rendered in these proceedings
on March 9, 1990, in light of those briefs.
Respondent maintains in its brief that the unguarded
belt cited in this case (Citation No. 3438481) was
nevertheless safe because Cl) it was at or above shoulder
height for any man using the adjacent walkway, (2) no one
has ever been injured by the unguarded belt, (3) the height
of the belt effectively served as a guard, (4) it would be
impossible to fall on the belt, (5) a kill switch is not
vital to safety on larger conveyors, (6) greasing,
maintenance and clean-up are performed during the evening
shift while the conveyor is not operating and, (7) workers
were aware that the kill switch was inoperable.
I have evaluated all of the factors cited by Respondent
as purportedly demonstrating the safety of the unguarded belt
with an inoperable kill switch but find them to be
unsubstantiated, without merit, or both. Even assuming that
the belt was located at or above shoulder height for workers
using the walkway this does not afford protection to the arms
and hands of persons who may be caught and/or drawn into the
belt.
In addition, even assuming that no one had ever been

1011

injured by the belt it cannot reasonably be inferred from
such evidence under the circumstances herein that serious
injuries wbuld not occur in the future~
Moreover even assuming that the height of the belt
would prevent persons from falling onto the belt the greater
hazard is presented by pinch points. The bald statement that
a "kill switch" is not vital to safety on larger conveyors is
without evidentiary support and contrary to common sense.
In addition even assuming that greasing, maintenance and
clean-up were performed during the evening shift while the
belt was not operating it is not disputed that the inspector
himself and other persons observed by the inspector were
using the walkway adjacent to the conveyor while the belt was
in operation. Even assuming that workers were aware that the
kill switch was inoperable the inherent hazard of the
unguarded belt with an inoperable kill switch was
nevertheless present.
Respondent.also maintains in its brief that it was
without negligence in failing to guard its conveyor and in
failing to have an operable kill switch because MSHA
Inspectors Erickson and Manwarring had granted them a
specific exception from the application of the cited
mandatory standard.
If such an exception had been
established by credible evidence the argument might have some
merit.
However, Respondent has simply failed to adequately
support its allegations.
In any event, mine operators may be presumed to know the
law £or obtaining modification of the application of
mandatory standards under section 10l(c) of the Act.
Likewise mine operators may be presumed to know that MSHA
inspectors do not have the authority to grant exceptions or
rnodif ications to the application of mandatory standards. The
negligence and unwarrantable failure findings reached in this
case are therefore fully supported.
With respect to Citation No. 3438483 Respondent argues
that the decision failed to taken into account the fact that
it had, before the citation was issued, spent three days
removing over 200 tons of rock to improve the condition of
the cited highwall. Even assuming this representation were
true however the evidence shows that these corrective
measures were discontinued well before the job of scaling the
highwall had been completed. There was no credible evidence
moreover that the operator intended to resume work on the
highwall.
In any event the negligence findings were based in
part upon the Respondent's abandonment of correcting the
highwall conditions.

1012

Under the circumstances I find no basis for amending the
findings i.n the decision dated March 9, 1990.
ORDER
Hinkle Contracting Corporation is herebi directed to pay
civil penalties of $1,350 within 30 days of ~he date of t~is
decision.

J

L

J

:1

\. . !
j

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;

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/

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·~

J

;

/Gary Melick
Administrative Law Judge
;\

Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)
Robert M. Connolly, Esq., Stites & Harbison, 600 West Main
Street, Louisville, KY 40202 (Certified Mail)
nt

1013

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

MAY 10 1990
CENTRAL OHIO COAL COMPANY,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'rRATION CMSHA) ,
Respondent

CONTEST PROCEEDING
Docket No. LAKE 89-53-R
Citation No. 2950074;1/20/89

.

SECRETARY OR LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner
v.

Muskingum Mine
Mine ID 33-00989
CIVIL PENALTY PROCEEDING
Docket No. LAKE 89-91
A.C. No. 33-00989-03571
Muskingum Mine

CENTRAL OHIO COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Patrick M. Zohn, Esq., U.S. Department of Labor,
Office of the Solicitor, Cleveland, OH, for the
Secretary of Labor;
David A. Laing, Esq., Porter, Wright, Morris and
Arthur, Columbus, OH, for Central Ohio Coal Company.

Judge Fauver

The Company seeks to vacate a citation and the Secretary
seeks its affirmance, with a civil penalty, under the Federal
Mine Safety and Health Act of 1977, 30 c.F.R. § 801 et seq.
The pivotal issue is whether the Company's 16-mile railroad
track at its surface coal mine is an "active working area" within
the meaning of 30 c.F.R. § 77.1713Ca).
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
and further findings in the Discussion below:

1014

FINDINGS OF FACT
1. Central Ohio Coal Company owns and operates a surface
coal mine, known as the Muskingu..m Mine, which·encompasses 135,000
to 140,000 acres.
2. At all relevant times, the mining process commenced with
the uncovering and extraction of coal from five pit areas, from
which the coal was transported by truck to the north end tipple.
From the tipple, the coal was conveyed by rail to the south end
preparation plant, where the coal was washed and conveyed off the
mine premises.
3. The railroad connecting the north end tipple and the
south end preparation plant has been in existence for about 20
years. The railroad is 16 miles long and generally runs through
remote areas of the mine.
It does not pass through or near any
pit area.
4. The train can be operated manually or by automatic
control but is manned by a train operator, called a "trip
rider." 1/ He or she usually operates the locomotive for half the
trip and-frequently more than half the trip.
When the train is
on "automatic," the operator stays near the controls. At the
time of the citation, the duties of the train operator included
operating the train, observing the railroad track (from:, the
locomotive) and recording hazards or track conditions warranting
attention. The day shift foreman had the duty of reviewing the
inspection logs prepared by the train operators.
5. On January 20, 1989, MSHA Inspector Robert Grissett
issued Citation No. 2950074, alleging a violation of 30 C.F.R.
§ 77.1713(a), as follows:
Records indicated that this railroad system
was being examined each shift, however the
examinations were not being conducted by a certified
person.
1/ The company designates the train operator position as
"trip-rider." This seems to be a misnomer, since the employee
operates the train at least half the trip, and when the train is
on automatic he or she remains available to operate the controls
when needed. This seems analogous to calling an airline pilot a
"plane rider" because part of the time the plane is on automatic
pilot or instrument control. Except for a confusing title, the
train employee's job and duties are understood and not in dispute
on this record.
In this decision, the job is called "train
operator," rather than "train rider," in the interest of closer
accuracy.

1015

6.
Inspector Grissett issued the citation because the
individuals examining the railroad -- the train operators -- were
not certified examiners.
7.
In Ohio, "certification" requires that an individual
obtain a surface foreman's license by passing an exrunination
given by the Ohio Mine Examining Board. There is no
certification for the position of train operator or "train rider."
8.
Inspector Grissett had been inspecting this mine for 11
years.
Prior to the citation, MSHA had not required that a
certified person inspect the railroad, or asked for any records
pertaining to the inspection of the railroad.
For at least five
years preceding the citation, Inspector Grissett had not
inspected the 16 miles of railroad.
9.
Around January 19, 1989, MSHA offered to permit the
train operators to inspect the railroad if they maintained an
inspection log and if the supervisor of the railroad reviewed the
log daily and rode the train once every two weeks.
If the
Company had agreed to this, the citation apparently would not
have been issued.
However, when a mutual agreement did not
materialize, Inspector Grissett requested an interpretation from
MSHA and subsequently concluded that the railroad was an "active
working area" within § 77.1713Ca) because of the presence of
individuals -- such as the train operators and track crew -working on the train or in the vicinity of the track. He equated
"active working area" as used in§ 77.1713(a) with "active
workings" as defined in 30 C.F.R. § 77.2(a).
10. For about a month before the citation, the Company had
been maintaining an inspection log filled in by the train
operators. This practice was commenced at the recommendation of
the Ohio Division of Mines.
It was not based on any violation of
Ohio mining law.
11. A track crew worked on the railroad each day.
train passed the crew twice on each roundtrip.

The

12. A number of derailments had occurred in recent times.
These dangers gave rise to a complaint to MSHA which resulted in
the subject investigation and citation.
DISCUSSION WITH FURTHER FINDINGS
The key issue is whether the 16-mile railroad is an "active
working area" within the meaning of 30 C.F.R. § 77.1713(a), which
provides in part:

1016

(a) At least once during each working shift, or
more often if necessary for safety, each active working
area and each active surface installation shall be
examined by a certified person designated by the
operator to conduct such examinations for hazardous
conditions and any hazardous conditions noted during
such inspection shall be reported to the operator and
shall be corrected by the operator.
The term "active working area" is not defined in the Act or
in the regulations, but the Secretary contends it is synonymous
with the definition of "active workings" in§ 77.2{a), which
states:
(a) "Active workings" means any place in a coal mine
where miners are normally required to work or travel;

***
The Secretary contends that, because the railroad is an area
"where miners are normally required to work or travel," and the
railroad is an integral part of the mine, it is necessarily an
"active working area" within the meaning of§ 77.1713(a). The
Company submits that "active working area" is not synonymous with
"active workings," that its railroad is not an active working
area as that term is used in§ 77.1713(a), and that safety
standards with respect to the railroad are governed by Subpart Q
of 30 C.F.R. Part 77, not§ 77.1713(a).
Section 77.1713(a) requires that, at least once during each
working shift, "each active working area and each active surface
installation shall be examined by a certified person ••• "
(emphasis added).
Although not defined in§ 77.2, "surface
installations" are the subject of considerable regulation in
Subpart C of Part 77. Section 77.200, entitled "Surface
Installations: General," provides that:
All mine structures, enclosures, or other facilities
(including custom coal preparation) shall be maintained
in good repair to prevent accidents and injuries to
employees.
If "active working area" in § 77.1713(a) were synonyoous
with "active workings" in§ 77.2(a), the reference in
·
§ 77.1713{a) to "active surface installation" would be
superfluous.
A statute or regulation should be construed so as
to avoid making any word superfluous.
United States v. Handy,
761 F.2d 1279, 1280 (9th Cir. 1985); King v. Internal Revenue
Service, 688 F.2d 488, 491 (7th Cir. 1982); Zeigler Coal Co. v.
Kleppe, 536 F.2d 398, 406 (D.C. Cir. 1976).
As stated in

1017

Suwannee River Finance, Inc. v. United States, 7 U.S. Cl. Ct.
556, 560 (1985):
It is axiomatic that regulations must be-interpreted to
give meaning to every word, particularly where doing so
leads to an entirely sensible interpretation of the
provision in question.
The language of§ 77.1713(a), similar language contained
elsewhere in Part 77, and MSHA's own Policy Manual interpretation
of § 77.1713(a) support the conclusion that "active working area"
in § 77.1713(a) refers to the pit areas of surface coal mines
in other words, the working areas where coal is mined and
extractell.
Section 77.1004(a) uses the term "working areas" as follows:
Highwalls, banks, benches, and terrain sloping into the
working areas shall be examined after every rain,
freeze, or thaw before men work in such areas, and such
examination shall be made and recorded in accordance
with§ 77.1713. [Emphasis added.]
Terms such as "highwall," "bank," and "bench" are clearly
associated with the "pit" areas of a surface coal mine where coal
is uncovered and extracted. Y
In § 77.1004, "working area" thus
refers to the pit or mining areas of a surface coal mine.
In
addition, § 77.1004 provides that examinations conducted pursuant
to§ 77.1004 "shall be made and recorded in accordance with§
77.1713," indicating that "working areas" as used in both
sections has the same meaning. Statutory or regulatory phrases
are not construed in isolation. They must be construed in the
context of the statute or regulation as a whole. Barnson v.
United States, 816 F.2d 549, 554 ClOth Cir. 1987), cert. denied,
484 U.S. 896 (1987) (citing United States v. Morton~? U.S.
822, 828 (1984). As stated in Barnson:
'!:._/ A "highwall" is "the unexcavated face of exposed
overburden and coal or ore in an opencast mine or the face or
bank on the uphill side of a contour strip mine excavation."
Bureau of Mines, A Dictionary of Mining, Minerals, and Related
Terms, 543 (1968). A "bench" for purposes of a surface mine is
"a ledge, which, in open-pit mines and quarries, forms a single
level of operation above which mineral or waste materials are
excavated from a continguous bank or bench face." Id. at 96. See
also 30 C.F.R. §§ 77.1000 et~· as evidencing that "highwalls,"
"banks," and "benches" are part and parcel of the "pit" or mining
areas of a surf ace coal mine.

1018

Generally, when the same words are used in different
sections of the law, they will be give~ the same
meaning.· [Citation omitted. J
See also Arnold v. Eastern Air Lines, Inc., 712 F.2d 899, 904
(4th Cir. 1983), cert. denied, 464 U.S. 1040 (1984) ("the canon
of construction is-we-11 established that words repeated within
the same statutory section have an identical meaning in the
several places employed")1 Tre-State Terminals, Inc., v. Jesse,
596 F.2d 752, 757 (7th Cir. 1979) (the connotation of a term in
one portion of an act may often be clarified by reference to its
use in others) •
In its Program Policy Manual, MSHA states with respect to
§ 77.1713:

MSHA will continue to require that daily
on-shift examinations be made in accordance
with this Section at active working areas of
surface mines, active surface installations
at these mines, and preparation plants not
associated with underground coal mines. MSHA
will not require daily on-shift examinations
of the surf ace work areas of underground coal
mines. [Emphasis added.]
MSHA's Policy Manual is consistent with the interpretation
that "active working area" in§ 77.1713(a) means the "pit" or
"mining area" of a surface coal mine and not simply any location
where miners are normally required to work or travel. 'fhis seems
to be a reasonable regulatory distinction, since non-mining areas
of surface mines, like the surface areas of underground mines,
are generally not subject to the shift-by-shift changes that may
characterize the working sections underground (e.g. methane
accumulation, roof falls, inadequate ventilation) or the pit or
mining areas of surface coal mines (as the result of drilling,
blasting and mining operations and the presence of highwalls,
benches, etc. ) •
This interpretation of § 77.1713(a) is consistent with the
fact that MSHA did not require the Company to conduct on-shift
inspections of haulage roads not located in the pit areas or
on-shift inspections of the service road that runs parallel to
the railroad track, even though miners work on or travel these
roads.
It is also consistent with the fact that for 20 years,
before this citation, MSHA did not require that a certified
person inspect the railroad.

1019

Section § 77 .1713 is included in "Subpart R -Miscellaneous," which does not refer to railroads or track
haulage.
However, Subpart Q, entitled "Loading and Haulage,"
sets forth numerous mandatory safety standards with respect to
loading, haulage equipment, trains and railroad tracks. See,
e.q., §§ 77.1603, 77.1605(m), (n), (p), 77.1606 and 77.1607(v),
Cw>, (y), and (z). Section 77.1606 is entitled "Loading and
haulage equipment; inspection and maintenance." Section
77.1606(a) requires an inspection of mobile loading and haulage
equipment by a "competent" person and§ 77.1606(b) requires
inspections of carriers on aerial tramways, as well as the
bra~es, ropes, and supports thereof.
Thus, in Subpart Q the Secretary has set forth explicit
safety standards as to haulage equipment, including trains and
railroads. Where she found it appropriate, the standards include
the inspection of loading and haulage equipment.
If the
Secretary had intended that a certified person inspect a railroad
track each shift, she would clearly have stated such requirement
in Subpart Q and not relied upon unclear language under the
"miscellaneous" subpart. For example, a logical place for such a
requirement would be § 77.1606. 1/
Finally, it may be noted, § 77.1713(a) is the surface coal
mine counterpart to § 75.304, which requires on-shift
examinations of each "working section" of an underground coal
mine. Like§ 77.1713(a), § 75.304 requires that at least once
during each working shift, or more often if necessary for safety,
each working section shall be examined for hazardous conditions
"by certified persons designated by the operator to do so." As
defined in § 75.2, "working section" has a much narrower
definition than "active working." 4/

ll Section 77.1606 states in part:
"(a) Mobile loading and haulage equipment shall be inspected by a
competent person before such equipment is placed in operation .***"
"(b) Carriers on aerial tramways • . • shall be inspected each
shift; brakes shall be inspected daily; ropes and supports shall
be inspected as recommended by the manufacturer or as physical
conditions warrant. ***·"
_!/Section 75.2Cg)(3) defines "working section" as "all areas of
the coal mine from the loading point of the section to and
including the working faces."

1020

For all of the foregoing reasons, the Secretary's attempt to
equate "active working area" as used in§ T7.1713Ca) with "active
workings" in § 77.2Ca) is ~ejected. I conclude that § 77.1713Ca)
does not apply to the railroad at the subject mine. Citation No.
2959974 is therefore invalid.
CONCLUSIONS OF LAW
.1.

The judge has jurisdiction over these proceedings.

2.

The Secretary failed to prove a violation of
2959974.

§ 77.1713Ca) as alleged in Citation No.

ORDER
1. The Secretary's motion to correct the transcript is
GRANTED.
2.

Citation No. 2959974 is VACATED.

3.

The civil penalty proceeding is DISMISSED.

l..l:ll :_~ ~4'M"&A-

~Fauver

Administrative Law Judge
Distribution:
Patrick M. Zohn, Esq., U.S. Department of Labor, Office of the
Solicitor, 881 Federal Office Building, 1240 East Ninth Street,
Cleveland, OH 44199 (Certified Mail)
David A. Laing, Esq., Porter, Wright, Morrios & Arthur, 41 S.
High Street, Columbus, OH 43215 (Certified Mail)
iz

1021

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

MAY 151990
CIVIL PENALTY PROCEEDINGS

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

Docket No. CENT 89-103-M
A.C. No. 14-01492-05501

v.
Portable No. 2
WALKER STONE COMPANY,
INCORPORATED,
Respondent

Docket No. CENT 89-158-M
A.C. No. 14-00612-05502
Plant C Mine
DECISIONS

Appearances:

Dewey P. Sloan, Jr., Esq., Office of the
Solicitor, U.S. Department of Labor, Kansas City,
Missouri, for the Petitioner;
David s. Walker, President, Walker Stone Company,
Incorporated, Chapman, Kansas, Pro se, for the
Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These civil penalty proceedings concern proposals for
assessment of civil penalties filed by the petitioner against the
respondent pursuant to section llO(a) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 820(a). The petitioner seeks
civil penalty assessments against the respondent for six (6)
alleged violations of certain mandatory safety standards found in
Part 56, Title 30, Code of Federal Regulations. The respondent
filed answers and contests, and hearings were convened in Topeka,
Kansas.
Issues
The issues presented in these cases are (1) whether the
conditions or practices cited constitute violations of the cited
mandatory safety standards; (2) whether several of the alleged

1022

violations were "significant and substantial," and (3) the
appropriate civil penalties to be assessed for the violations,
taking into account the civil penalty assessment criteria found
in section llO(i) of the Act.
In Docket No. CENT 89-158-M, the respondent raised a question of jurisdiction claiming that the location where the alleged
violations were cited was not subject to MSHA's enforcement
jurisdiction because no mining activities covered by the Act are
taking place at that site.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
§

2. Sections llO(a) and (i) of the 1977 Act, 30 u.s.c.
8 2 O ( a) and ( d) .
3.

Commission Rules, 20 C.F.R.

§

2700.1 et seq.

Findings and Conclusions
Docket No. CENT 89-103-M
In this case, the respondent was cited on January 19, 1989,
for three alleged violations. Section 104(a) non-S&S Citation
No. 2651871, cited an alleged violation of mandatory safety
standard 30 C.F.R. § 56.13011, because of an inoperative pressure
gauge on the air receiver tank of a compressed air drill. The
inspector found that the violation resulted from a moderate
degree of negligence, and that an injury was unlikely. The
violation was abated and the citation was terminated after a new
pressure gauge was installed on the compressor.
Section 104(a) S&S Citation No. 2651874, cited an alleged
violation of 30 C.F.R. § 56.12025, for the failure by the respondent to provide an adequate grounding device for the 110 volt
parts cleaning machine. The inspector found that an injury was
reasonably likely, and that the violation resulted from a moderate degree of negligence. The violation was abated and the
citation was terminated after the machine was properly grounded
by the installation of a new cable equipped with a grounding
conductor and proper plug.
Section 104(a) S&S Citation No. 2651877, cited an alleged
violation of 30 c.F.R. § 56.12025, for the failure by the respondent to properly ground a 3 horsepower 3 phase 220 volt grinder.
The inspector found that an injury was reasonably likely, and
that the violation resulted from a mo~erate degree of negligence.
The violation was abated and the citation was terminated after

1023

the grinder was grounded properly by the installation of a
grounding wire from the fuse safety switch to the grinder motor.
When the hearing in this case was convened the parties
advised me that they proposed to settle the case, and the respondent conceded that the violations occurred and agreed to pay the
proposed civil penalty assessments in full.
In this regard, the
parties stipulated to the following:
1. The respondent's portable number two plant is
subject to the Act and to MSHA's enforcement
jurisdiction.

2. The respondent is a small crushed stone operator who employs approximately 3 to 15 miners during the
course of its mining operation.
3. Payment of the proposed civil penalty assessments will not adversely affect the respondent's ability to continue in business.
4. The respondent has no history of prior
assessed civil penalties for violations of any mandatory safety or health standards.
The inspector who issued the citations was present in the
court room, and he expressed his agreement with the proposed
settlement disposition of this case. After careful consideration
of the pleadings and arguments presented by the parties in
support of the proposed settlement of this case, and pursuant to
Commission Rule 30, 29 C.F.R. § 2700.30, the proposed settlement
was approved from the bench (Tr. 11-20). I conclude and find
that the sett1ement is reasonable and in the public interest, and
my bench decision is reaffirmed, and the settlement IS APPROVED.
ORDER
The contested citations are AFFIRMED, and the respondent IS
ORDERED to pay the following civil penalty assessments in satisfaction of the contested violations in this case:
Citation No.

Date

30 C.F.R. Section

Assessment

2651871
2651874
2651877

01/19/89
01/19/89
01/19/89

56.13011
56.12025
56.12025

$20
$68
$68

Payment is to be made to MSHA within thirty (30) days of the
date of this decision and order, and upon receipt of payment,
this matter is dismissed.

1024

Docket No. CENT 89-158-M
In this case, petitioner's counsel stated that he agrees
with the respondent's contention that MSHA has no enforcement
jurisdiction at the location where the citations were issued by
the inspector during an inspection conducted on May 25, 1989.
Counsel asserted that the inspection was made because the respondent had filed for a mine identification number at MSHA's
request. However, a subsequent investigation by MSHA revealed
that the mine previously operated at the site identified as
"plant C" has been closed for 10 years and that· the respondent
does not conduct any crushed stone mining activities at the site
ahd simply uses the location for an office and small shop.
Petitioner's counsel confirmed that pursuant to MSHA's
enforcement policies, the activities conducted by the respondent
at the location in question are not within MSHA's enforcement
jurisdiction. Counsel explained that the respondent filed an
MSHA legal identity form after being instructed by MSHA's Denver
Off ice to do so and that this triggered an inspection by the
inspector who.assumed that there was jurisdiction. The inspector
who conducted the inspection which resulted in the issuance of
the citations agreed that this was in fact the case and he concurred that MSHA has no jurisdiction in this matter (Tr. 4-11).
In view of the foregoing, petitioner's counsel moved for a
dismissal of this case. The motion was granted from the bench,
and it is herein reaffirmed. Under the circumstances, the petitioner• s previously filed motion for admission of the citations
and jurisdiction is deemed moot and withdrawn.
ORDER
This case IS DISMISSED for lack of jurisdiction, and the
three contested citations ARE VACATED.

Distribution:
Dewey P. Sloan, Jr., Esq., Office of the Solicitor, U.S~
Department of Labor, Room 2106, 911 Walnut street, Kansas City,
MO 64106 (Certified Mail)
Mr. David s. Walker, President, Walker stone Company,
Incorporated, P.O. Box 563, Chapman, KS 67431 (Certified Mail)
/fb

1025

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

MAY 151990

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

CIVIL PENALTY PROCEEDING
Docket No. SE 89-152-M
A.C. No. 09-00281-05513

v.
Howard Mine
HOWARD SAND COMPANY,
Respondent
DECISION
Appearances:

Michael K. Hagan, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia, for
the Petitioner;
Harold Brown, Owner, Howard Sand Company, Howard,
Georgia, Pro se, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil
penalty filed by the petitioner against the respondent pursuant
to section 1YO(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 820(a), seeking a civil penalty assessment in
the amount of $147 for an alleged violation of mandatory safety
standard 30 C.F.R. § 56.14112. Respondent filed a timely answer
and contest, and a hearing was held in Macon, Georgia. The
parties waived the filing of posthearing arguments, but I have
considered their oral arguments made on the record during the
course of the hearing in this matter.
Issues
The issues presented in this case are (1) whether the
condition or practice cited by the inspector constitutes a
violation of the cited mandatory safety standard, (2) whether the
violation was "significant and substantial" (S&S), and (3) the
appropriate civil penalty to be assessed for the violation,

1026

taking into account the statutory civil penalty assessment
criteria found in section llO(i) of the Act. Additional issues
raised by the parties are identified and disposed of in the
course of this decision.
·
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seg.
2.

Section llO(i) of the 1977 Act, 30 U.S.C.

3.

Commission Rules, 29 C.F.R.

§

§

820(i).

2700.1 et seg.

Stipulations
The parties stipulated to the following (Tr. 4-6, Exhibit
ALJ-1) :
1. The respondent is engaged in a mining operation which affects commerce and it is subject to the
Act.
2.

The Commission has jurisdiction in this case.

3. The inspector who issued the subject citation
is a duly authorized representative of the Secretary
and a true and correct copy of the citation was served
on the respondent.
4. The imposition of a civil penalty assessment
for the violation will not affect the respondent's
ability·to continue in business.
5. A violation of the cited standard, 30 C.F.R.
56.14112 existed as cited in that the drive shaft
coupling on the dredge, diesel engine was not equipped
with a guard at the time of the inspection (Tr. 7).
§

6.

The violation was abated in good faith.

7. The respondent's history of prior violations,
as shown on an MSHA computer print-out (exhibit P-1),
is correct.
8.

The respondent is a small mine operator.

9. The issues remaining for trial are the degree
of negligence and the reasonableness of the proposed
civil penalty assessment of $147.

1027

Discussion
The contested section 104(a) S&S Citation No. 3432413,
served on the respondent on May 17, 1989, cites an alleged violation of mandatory safety standard 30 C.F.R. § 56.14112, and the
cited condition states that "The drive shaft coupling on the
dredge diesel engine is not equipped with a guard."
Petitioner's Testimony and Evidence
MSHA Inspector Darrell Brennan confirmed that he inspected
the respondent's sand and gravel operation on May 17, 1989, and
that he issued the citation after finding that the coupling
apparatus connecting the diesel engine and pump used to pump the
sand from the pit was not provided with any guarding to prevent
contact with persons. He stated that the engine was mounted on
an elevated platform "dredge" approximately 8 feet by 12 feet.
He explained that the sand is flushed from the pit walls by high
pressure water hoses into the pit, and it is pumped from the pit
by the pump in question. Two men are usually present doing this
work.
Mr. Brennan stated that the diesel engine is approximately
4500 horsepower, and that the drive shaft coupling connecting the
engine to the pump rotates at approximately 1700-1800 rpm•s. He
described the coupling as a "donut" shaped device which coupled
the engine and pump shafts together, and he confirmed that it was
not guarded at all.
Mr. Brennan stated that there was a plate steel walkway
approximately 2-1/2 to 3 feet wide adjacent to the unguarded
coupling. He stated that the walkway is wet and muddy, and that
the two men working in the pit pumping sand would have occasion
to come to the platform where the engine was located to check it,
grease it, or perform maintenance work. Someone would also be
required to be in the area to start up the engine and pump, and
to engage the clutch, and they would. also be there to shutdown
the engine at the end of the work shift.
Mr. Brennan stated that the wet and muddy walkway conditions
presented a slipping hazard, and given the fact that the
unguarded shaft coupling turn~d at a high rate of speed and
created a "vacuum," he believed that it was reasonably likely
that someone on the slick walkway would fall directly into the
unguarded coupling and suffer injuries of a reasonably serious
nature, including disabling injuries.
For these reasons, he
concluded that the violation was significant and substantial.
Mr. Brennan confirmed that during a prior inspection of the
platform "dredge" area in question on September 15, 1988, he
issued a citation on the same diesel engine because one of the
V-belt pinch points was not adequately guarded. Although a guard

1028

was installed,' he did not believe that it was sufficient to cover
the pinch point (exhibit P-3). Mr. Brennan believed that the
shaft coupling which he cited on May 17, 1989, was provided with
a guard at the time of his previous inspection on September 15,
1988.
Mr. Brennan further stated that although he was not certain
whether the shaft coupling in question was previously guarded, he
would have issued a citation if it were not guarded. He stated
that Mr. Brown did not accompany him during his inspections. He
did not know whether the engine was greased while the engine was
running, and he was not aware of the respondent's maintenance
procedures or whether maintenance was ever performed with the
engine and pump operating (Tr. 8-30).
Respondent's Testimony and Evidence
Harold Brown, respondent's owner and operator, stated that
he operates four sand and gra~el plants and has been in business
and operated the kinds of equipment associated with his business
for 60 years. He stated that MSHA inspects his operations two or
three times a year, and that except for one occasion approximately 10 years ago when he was cited at another operation for
failing to guard an engine shaft coupler, he has not been previously cited at the Howard Mine for a violation of this kind.
Mr. Brown confirmed that two men work in the pit pumping
sand, and that the pumper is usually 60 feet away from the dredge
where the unguarded engine drive coupler was located. The other
person may grease the engine as required, and if there is a
problem he would have to go and check the engine and pump while
it is in operation. He stated that the pump operates approximately 3 hours a day, 4 days a week, and that the person who is
there usually sits in his car while the pump is operating.
Someone would have to start and stop the engine pump each day.
Mr. Brown conceded that the engine and pump shaft coupler
cited by Inspector Brennan was not guarded, and that there was a
violation of the cited standard. However, he believed that the
proposed civil penalty assessment was excessive for the violation. He stated that although he was previously cited in
September, 1988, .he was unaware of that violation until he called
his manager at that operation after he received the May 17, 1989,
citation from Mr. Brennan. Mr. Brown also believed that he had a
good safety and accident record, and that he has always corrected
any conditions brought to his attention by the MSHA inspectors.
He did not believe that the cited condition was as serious as a
"pinch point" hazard (Tr. 30-47).

1029

Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
standard 30 C.F.R. § 56.14112, for failure to equip the cited
drive shaft coupling on the dredge diesel engine with a guard.
The standard requires that equipment guards be securely in place
while machinery is being operated. The inspector confirmed that
he cited section 56.14112, rather than section 56.14107, which
requires the guarding of moving machine parts to protect persons
from contacting couplings that can cause injury because of his
recollection that the coupling was guarded during a prior inspection on September 15, 1988, but that the guard was not in place
when he conducted his inspection on May 17, 1989 (Tr. 28-29).
The respondent stipulated to the fact of violation, and the
inspector's unrebutted testimony establishes that the cited
coupler was not guarded. Under the circumstances, I conclude and
find that a violation has been established, and the citation IS
AFFIRMED.
Significant and Substantial Violation
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 its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum the Secretary of Labor must
prove:
(1) the underlying violation of a 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.

1030

In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that·the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Inspector Brennan testified credibly that because of the
slippery conditions on the steel walkway adjacent to the
unguarded coupler which would be turning at a high rate of speed
when the engine was in operation it was reasonably likely that
someone walking along the walkway with muddy ~oots or shoes would
fall directly into the coupler and suffer permanently disabling
injuries. He also believed that a person could break his back or
suffer very serious injuries if he were to contact the coupler
(Tr. 14-15). The inspector confirmed that while the walkway was
provided witlra guardrail on the "outside," no guardrail was
provided on the "inside" and someone "could get right into the
motor" (Tr. 26-27) .
Although Mr. Brown did not consider the hazard presented by
the unguarded coupler to be a "pinch point" hazard, he agreed
that the inspector was concerned that the coupling turning at
1,700 rpm•s under high speed would injure anyone who contacted
it. He also agreed with the inspector's belief that anyone
walking on the steel walkway with slippery boots could inadvertently fall into the unguarded coupler. He also conceded that
someone would walk by the location of the unguarded coupler once
or twice a day (Tr. 35, 44).
In view of the foregoing, I conclude and find that the
violation was significant and substantial, and I agree with the
inspector's finding in this regard. Accordingly, IT IS AFFIRMED.

1031

Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
The parties stipulated that the respondent is a small mine
operator and that the civil penalty assessment for the violation
will not affect the respondent's ability to continue in business.
I adopt these stipulations as my findings and conclusions with
respect to these issues.
History of Prior Violations
MSHA's computer print-out with respect to the respondent's
compliance record for the period May 17, 1987 through May 16,
1989, reflects that the respondent paid civil penalty assessments
for 31 violations, eight which were for violations of section
56.14112.
I take note of the fact that 13 of these prior assessments were for non-S&S "single penalty" section 104(a) citations,
and that the remaining citations were all section 104(a) "S&S"
citations.
Negligence
The inspector made a finding of "moderate negligence" in
this case, and the petitioner confirmed that this was the case
and that the respondent is not charged with any "reckless disregard" of the cited standard (Tr. 42). I agree with the inspector's moderate negligence finding and I conclude and find that
the violation was the result of the respondent's failure to
exercise reasonable care.
Gravity
On the basis of my significant and substantial findings and
conclusions, I conclude and find that the violation was serious.
Good Faith Compliance
The parties stipulated that the violation was abated in good
faith by the respondent and I adopt this stipulation as my finding and conclusion on this issue.
I have taken this into consideration in the assessment of the civil penalty for the violation
in question.
Civil Penalty Assessment
In mitigation of the proposed civil penalty assessment in
this case, respondent Brown asserted that he operates four plants
and has never had an injury as a result of the cited unguarded
equipment during MSHA inspections which have been conducted two

1032

times a year since 1978. Mr. Brown also stated that the particular need for a coupler on the cited equipment had never previously been brought to his attention until the inspection in
May, 1988, and he disagreed with the inspector's belief that the
cited coupler had previously been guar~ed (Tr. 21, 31).
Mr. Brown stated further that during his 60 years' of experience
in the business, he has never had an injury at any of his operations (Tr. 32). He explained that he has operated diesel motors,
couplers, and pumps similar to the one cited in this case for
60 years without an injury (Tr. 37-38). Although he conceded
that he has previously been cited for violations of section
56.14112, he confirmed that none of these were for failure to
guard couplers on any of his barges (Tr. 39).
Mr. Brown further confirmed that subsequent to the issuance
of the citation in this case, he learned from the manager of one
of his other operations that a similar coupler was cited by MSHA
10 or 12 years ago, but that this violation was never previously
brought to his attention (Tr. 40).
Although the inspector confirmed that he had previously
cited the same diesel engine on September 15, 1988, because a
guard on the drive motor did not cover the pinch points, he
conceded that the cited standard involved a judgment call as to
whether the guard was sufficient and that a guard had in fact
been provided.
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section llO(i) of the
Act, including the arguments advanced by the respondent in mitigation of the civil penalty, I conclude and find that a civil
penalty assessment of $100 is reasonable and appropriate for the
violation which has been affirmed.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
in the amount of $100 for the violation which has been affirmed,
~nd payment shall be made to MSHA within thirty (30) days of the
date of this decision and order. Upon receipt of payment by
MSHA, this matter is dismissed.

fl,,
;;,~
G~.

Koutras
Administrative Law Judge

1033

Distribution:
Michael K. Hagan, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 339, 1371 Peachtree Street; N.E., Atlanta, GA
30367 (Certified Mail)
Mr. Harold Brown, Howard Sand Company, P.O. Box 83, Howard, GA
31039 (Certified Mail)
/fb

1034

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

MAY 161990
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 88-318
A. C. No. 46-07006-03503

v.
Whipple Refuse File
BILL PACK LAND CORPORATION,
Respondent
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 88-355
A. C. No. 46-06415-03502

v.
PCR Surface
PCR JOINT VENTURE,
Respondent
DECISION
Appearances:

Ronald Gurka, Office of the Solicitor, "Arlington,
Virginia, for the Secretary;
Philip D. Mooney, Esq., Hamilton, Mooney, Burgess,
Young and Tissue, Oak Hill, West Virginia, for
Bill Pack Land Corporation,
P. Nathan Bowles, Esq., Bowles, McDavid, Graff and
Love, Charleston West Virginia, for PCR Joint
Venture.

Before:

Judge Fauver

In these consolidated cases the Secretary seeks civil
penalties for alleged violations of safety standards under the
Federal Mine Safety Act of 1977, 30 u.s.c. § 801 et~
The cases involve a coal mine refuse pile that has been on
fire for over 50 years.
The cases were called for hearing on February 13, 1990,
at Charleston, West Virginia. After testimony, and the
introduction and documentary evidence, the parties, with the
presiding judge, had an extensive settlement conference. This

1035

led to a settlement agreement that includes a reduced penalty for
each Respondent, an agreed upon plan for extinguishing the fire,
and an agreement to modify withdraw orders to permit Respondents
to resume operations in accordance with the-fire control and
extinguishing plan.
I have considered the hearing evidence, and the documents
submitted with the Secretary's motions to approve settlement, and
conclude that they are consistent with the purposes of the Act.
ORDER
WHEREFORE IT IS ORDERED that:
1. The Secretary's motion to approve settlement in Docket
No. WEVA 88-318 is GRANTED.
2. The Secretary's motion to approve settlement in Docket
No. WEVA 88-355 is GRANTED.
3. Respondent Bill Pack Land Corporation shall comply fully
with all the terms of the fire control and extinguishing plan
attached to the Secretary's motion for settlement in Docket No.
WEVA 88-318.
4. Respondent PCR Joint Venture shall comply fully with all
the terms of the fire control and extinguishing plan attached to
the Secretary's motion to approve settlement in Docket No. WEVA
88-355.
5.
Subj~ct to each Respondent's continued full compliance
with such fire control and extinguishing plans, the Secretary may
modify Withdrawal Order Nos. 2574254 and 2574256 to permit the
Respondents, respectively, to resume operations in compliance
with such plans.
6.

Citation No. 2715802 and Order No. 2754254 are AFFIRMED.

7. Respondent Bill Pack Land Corporation shall pay the
approved penalty of $350 within 30 days of this Decision.
8.

Citation No. 2715803 and Order No. 2574256 are AFFIRMED.

9.
Respondent PCR Joint Venture shall pay the approved
penalty of $350 within 30 days of this Decision.

4!,~ '0-ftA,,tVtA_,

William Fauver
Administrative Law Judge

1036

Distribution:
Ronald E. Gurka, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Philip D. Mooney, Esq., Hamilton, Mooney, Burgess, Young and
Tissue, P.O. Drawer 1145, oak Hill, WV 25901 (Certified Mail)
P. Nathan Bowles, Jr., Bowles McDavid Graff and Love, P.O. Box
1386, Charleston, WV 25325-1386 (Certified Mail)
iz

1037

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

MAY 171990
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 90-29
A. C. No. 15-12602-03505 VlA

v.

.

BENNETT TRUCKING COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Preparation Plant

CIVIL PENALTY PROCEEDING
Docket No. KENT 90-34
A. C. No. 15-12602-03503 Q7G

v.
Preparation Plant
B & S TRUCKING COMPANY,
Respondent
DECISION
Appearance:

G. Elaine Smith, Esq., Office of the Solicitor,

u. s. Department of Labor, Nashville, Tennessee,
for the Secretary;
~usan c. Lawson, Esq., Forester, Buttermore, Turner,
& Lawson, P.S.C., Harlan, Kentucky, for the
the Respondent.

Before:

Judge Weisberger

Statement of the Case
In these Civil Penalty Proceedings, the Secretary (Petitioner)
seeks civil penalties for alleged violation of the Operator
(Respondent) of 30. C.F.R. § 77.1710(i). · Pursuant to notice, a
Hearing was held in Johnson City, Tennessee, on March 28, 1990.
At
the commencement of the Hearing, Petitioner made a Motion for
Summary Judgment, but indicated that she would proceed with the
Hearing.
A decision was reserved on the Motion.
Jim Allen
Tankersly testified for Petitioner. At the conclusion of the
Petitioner's case, Respondent made a Motion for Judgment.
After
hearing arguments from both Parties on the Motion, a decision
granting Respondent's Motion, was announced orally from the Bench.
In light of this decision, Petitioner's Motion for Summary Judgment
is denied.

1038

Stinulations
Kent

90~29

1. Bennett Trucking Company is a Kentucky corporation which
contracts with companies producing coal for resale in Interstate
Commerce, and thus is subject to the jurisdiction of the Federal
Mine Safety and Health Review Commission and its administrative
law judges pursuant to § 3(d) of the Act.
2.
Bennett Trucking Company contracts with Manalapan Mining
Company, Inc., which operates a processing plant in Harlan County,
Kentucky, to perform coal hauling to, from, and within said processing plant.
As of August 1989, the processing plant produced
approximately 1.1 million tons of coal annually.
3. James Bennett is, and was in August 1989, a partner in
Bennett Trucking Company.
4.
On August 9, 1989, MSHA Inspector Jimmy A. Tankersly
issued Citation No. 3163935 at the preparation plant, pursuant to
§ 104(a) of the Federal Mine Safety and Health Act of 1977,
citing Bennett Trucking Company for a violation of 30 C.F.R.
§ 77.1710(i) because the Mack Coal Truck, vehicle number DM811SX,
owned by Bennett Trucking Company and used to haul coal at the
preparation plant, was not equipped with seat belts.
5.
On August 9, 1989, MSHA Inspector Jimmy A. Tankersly
issued Citation No. 3163936 at the preparation plant, pursuant to
§ 104Ca) of the Act, citing Bennett Trucking Company for a violation of 30 C,F.R. s· 77.1710(i) because the Mack Coal Truck,
11ehicle number DM 5855X306607, owned by Bennett Trucking Company
and used to haul coal at the preparation plant, was not equipped
with seat belts.
6.
On August 9, 1989, MSHA Inspector Jimmy A. Tankersly
issued Citation No. 3163937 at the preparation plant, pursuant to
§ 104(a) of the Act, citing Bennett Trucking Company for a violation of 30 C.F.R. § 77.1710(i) because the seat belt buckle on
one side of the Mack Coal Truck, vehicle number DM6115zx5621,
owned by Bennett Trucking Company and used to haul coal at the
preparation plant, had been broken off.
7. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly
issued Citation No. 3163938 at the preparation plant, pursuant to
§ 104(a) of the Act, citing Bennett Trucking Company for a violation of 30 C.F.R. ~ 77.1710Ci) because the Mack Coal TrucK,
company number 2, owned by Bennett Trucking Company and used to
haul coal at the preparation plant, was not equipped with seat
belts.

1039

8. On August 29, 1989, MSHA Inspector Johnnie Smith issued
Citation No. 3168465 at the parparation plant, pursuant to
§ 104Ca> of the Act, citing Bennett Trucking Company for a violation of 30 C.F.R. § 77.1710Ci) because the-Mack Haul Truck,
serial number DM115X6641, owned by Bennett Trucking Company and
used to haul coal at the preparation plant, was not equipped with
seat belts on the operator's side.
9.
None of the trucks in question are vehicles required to
have "rollover protective structures" CROPS) pursuant to 30 C.F.R.
§ 77.403a, and none of the trucks in question are equipped, or
were equipped in August 1989, with ROPS.
10. The determining factor in deciding whether the trucks in
question are vehicles required to be equipped with seat belts
pursuant to 30 C.F.R. § 77.1710Ci) is whether or not "roll protection," as that term is defined at 30 C.F.R. § 77.2Cw>, is provided,
and was provided in August 1989, for said trucks.
11. Each of the trucks in question is equipped, and was
equipped in August 1989, with a cantilevered "cab-shield," or
aoron which is attached to the truck bed and extends over the
c~b from the truck bed, except when the bed is being unloaded.
12. Each of the five citations listed above were terminated
on September 8, 1989, after seat belts were provided for each of
the trucks in question.
13. The penalty assessment of $50 for each of the citations
listed above (Nos. 3163935, 3163936, 3163937, 3163938, and
3168465), fo~ a total assessment of $250, would have negligible
effect on the ability of Bennett Trucl(ing Company to continue in
business.
KENT 90-34
1. B & S Trucking Company is a Kentucky corporation which
contracts with companies producing coal for resale in Interstate
Commerce, and thus is subject to the jurisdiction of the Federal
Mine Safety and Health Review Com.mission and its Admini.::;trative
Law Judges pursuant to § 3(d) of the Act.
2.
B & S Trucking Company contracts with Manalapan Mining
Company, Inc., which operates a processing plant in Harlan
County, Kentucky, to perform coal hauling to, from, and within
said processing plant.
~s of August 1989, the processing plant
produced approximately 1.1 million tons of coal annually.
3.
Ray Ellis is, and was in August 1989, a surface foreman
for Manalapan Mining.

1040

4.
On August 9, 1989, MSHA Inspector Jimmy A. Tankersly
issued Citation No. 3163931 at the preparation plant, pursuant to
§ 104(a) of the Act, citing B & s Trucking Company for a violation of 30 C.F.R. § 1710(i) because the Mack ·coal Truck, vehicle
number IM2Bl28C4CA008967, owned by B & S Trucking Company and
used for hauling and dumping -:it the preparation plant, was not
equipped with seat belts.
5. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly
issued Citation No. 3163932 at the preparation plant, pursuant to
§ 104(a) of the Act, citing B & S Trucking Company for a violation
of 30 C.F.R. § 1710Ci) because the Mack Coal Truck, vehicle number
IM2B238C4DA009196, owned by B & S Trucking Company and used to haul
coal at the preparation plant, was not equipped with seat belts.
6. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly
issued Citation No. 3163933 at the preparation plant, pursuant
to § 104Ca> of the Act, citing B & S Trucking Company for a violation of 30 c.F.R. § 1710Ci) because the Mack Coal Truck, vehicle
number 424DM611SX, owned by B & S Trucking Company and used to
haul coal at the preparation plant, was not equipped with seat
belts.
7. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly
issued Citation N. 3163934 at the preparation plant, pursuant to
§ 104(a) of the Act, citing B & S Trucking company for a violation
of 30 C.F.R. § 1710(i) because the Mack Coal Truck, vehicle number
IM2Bl28CSDA009191, owned by B & S Trucking Company and used to haul
coal to the preparation plant, was not equipped with seat belts.

8. None of the trucks in question are vehicles required to
have "rollover protection structures" CROPS) pursuant to 30 C.F.R.
§ 77.403a, and none of the trucks in question are equipped, or
were equipped in August 1989, with ROPS.
9. The determining factor in deciding whether the trucks in
question are vehicles required to be equipped with seat belts,
pursuant to 30 C.F.R. § 77.1710(i), is whether or not "roll protection," as that term is defined at 30 C.F.R. 5 77.2(w), is
provided, and was provided in August 1989, for said trucks.
10. Each of the trucks in question is equipped, and was
equipped in August 1989, with a cantilevered "cab-shield," or
apron which is attached to the truck bed and extends over the cab
from the truck bed, except when the bed is being unloaded.
11.
Each of the four citations listed above were terminated
on August 29, 1989, after seat belts were proviaed. for each of
the trucks in question.
12. The penalty assessment of $42 for each of the citations
listed above (Nos. 3163931, 3163932, 3163933, and 3163934), for a
total assessment of $168, would have negligible effect on the
ability of B & S Trucking Company to continue in business.

1041

Testimony
Jimmy Allen Tankersly, an MSHA Inspector, testified that he
issued Citation 3163935 to Respondent, alleging a violation of
30 C.F.R. § 1710Ci), in that its coal trucks did not have seat
belts. He indicated that the violation was significant and substantial in that if the trucks would overturn, it was reasonably
likely the drivers would be injured, possibly fatally.
He
indicated that the Respondent was negligent in that it should
have known that the pertinent regulation requires seat belts in
the trucks in question. He opined that the cab shields on the
trucks do provide protection and can possibly keep the cab from
being crushed in the event of the truck turning over. He
indicated that the cab shield is on the truck except when it
dumps coal.
According to Tankersly, when the trucks are dumping
coal, they are moving at about 5 miles an hour or less.
In
essence, Counsel for Petitioner indicated that Tan~ersly's testimony with regard to Citation 3163935 is applicable to all the
Citations issued in these cases.
Discussion and Conclusion of Law
At the conclusion of Petitioner's case, Respondent made a
Motion for Judgment in its favor.
After hearing argument from
both Counsel, the following Bench Decision was rendered (with
minor corrections of a non substantive nature):
I have heard argument and have evaluated the evidence and
the testimony, and I have read the pertinent regulations.
I find
that the Motion was well made and the Secretary has not established her case.
the regulation that is at issue,
The reasons are as follows:
30 C.F.R. § 77.1710(i), requires two elements; first of all it
requires a danger of overturning and it also rquires that roll
protection be provided.
With regard to the first element the Secretary must establish
that there is a danger of overturning.
I £ind specifically that
the Secretary did not establish a danger of overturning.
The
evidence from the inspector, Mr. Tankersly, indicated that should a
vehicle overturn, there would likely be an injury to a person in
the vehicle. This statement falls short of establishing that there
was any danger of the vehicle overturning. On that basis alone, I
grant the Motion.~/

.:!/

See, Turner Brothers, Inc., 6 FMSHRC 1219 (May 1984) (Not
cited in the Bench Decision).
In Turner Brothers, supra,
Judge Koutras held that section 77.1710Ci> does not require seat
belts for all vehicles, and that an inspector citing a violation
thereunder must first make a finding that there is a danger of
overturning befora requiring the seat belts be installed on ROPS
equipment vehicles.
1042

I also note that with regard to the second element of
section 77.7109(i), it also must be established that roll protection was provided. That term is defined in 30 C.F.R. § 77.lOOCw)
as meaning a "framework, safety canopy, or ·similar protection for
the operator when equipment overturns."
The term "similar protection" modifies the terms immediately
preceding it, namely "framework" or "safety canopy." The item
referred to as a cab shield, as depicted in Respondent's
Exhibits 1 to 8, (specifically in Respondent's Exhibits 1, 7, and
4), is clearly not a portion of the cab.
It is a portion of
another element of the truck, whicl'l is raiseq when dumping coal.
Certainly, when it is raised, there is a gap between this item
referred to as a cab shield, and the truck itself. Thus I can
not see that it's been established that the item referred to as a
shield is protection similar to a framework or a safety canopy.
For these reasons, and primarily for the reason that I
previously stated, i.e., that it has not been established that
there has been any danger of the subject trucks overturning, I
grant the Motion. Accordingly, the citations that have been
issued herein, shall be dismissed.
ORDER
It is ORDERED that Citation Numbers 3163935, 3163931,
3163932, 3163936, 3163937, 3163938, 3168465, 3163933, and 3163934
be DISMISSED.

bJ::;;;-

Administrative Law Judge

Distribution:
G. Elaine Smith, Esq., Michael Roden, Esq., Office of the
Solicitor, U. S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215 (Certified Mail)
Susan C. Lawson, Esq., Forester Building, First Street, Harlan,
KY 40831 (Certified Mail)
dcp

1043

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

MAY 171990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-275-M
A.C. No. 04-01937-05505

.

v.
SANGER ROCK & SAND,
Respondent

Docket No. WEST 89-71-M
A.C. No. 04-01937-05506
Sanger Pit and Mill

DECISION
Appearances:

Susanne Lewald, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California,
For Petitioner;
J.F. Baun, President, Sanger Rock and Sand,
Sanger, California, pro se

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges respondent San~er Rock &
Sand (Sanger) with violating two safety regulations _/promulgated
under the Federal Mine Safety and Health Act, 30 u.s.c. § 801
et seq. Cthe Act).
After notice to the parties, a hearing on the merits was
held in Fresno, California on December 13, 1989.
The parties filed post trial briefs.
Threshold Issues
In support of its motion to dismiss, Sanger raises two
issues.
Initially, the operator asserts MSHA did not acquire jurisdiction over it for the reason that the federal government has

1/

Citation No. 3076869 alleges Sanger violated 30 C.F.R.
56.14007; Citation No. 3074994 alleges the company violated
30 C.F.R. § 56.12028.

§

1044

failed to comply with Article I, Section 8, Clause 17 2/ of the
United States Constitution. Specifically, it is argued that,
since the United States does not possess fee simple title to
Sanger's property and since the state of California did not
cede the property to the United States, then the case should be
dismissed for lack of "territorial jurisdiction."
Discussion
For the purpose of this ruling, I assume the federal government does not own this property and I further assume the property has not been ceded to the federal government by the state of
California. But I nevertheless conclude that Sanger's arguments
are misdirected.
The cited portion of the Constitution relied on
is a grant of authority relating to the District of Columbia, the
seat of government of the United States.
The Constitutional clause relied on by Sanger does not require that the federal government own property as a pre-condition
to regulating such property.
In support of its position, Sanger relies upon United States
v. Benson, 495 F.2d 475 (1974).
Benson is not controlling. In Benson the defendants therein were convicted of a robbery that was committed within the
territorial jurisdiction of the United States. The territorial
jurisdiction of the United States involved in the case was Fort
Rucker, Alabama, a military installation.
In view of this fact
the federal military code, by virtue of Clause 17, was the
exclusive law on the military installation.

]:_/

The cited portion of the Constitution provides that Congress
shall have the right:
To exercise exclusive Legislation in all cases
whatsoever, over such District (not exceeding ten
Miles square) as may, by Cession of particular States,
and the Acceptance of Congress, become the Seat of
of the Government of the United States, and to exercise like Authority over all Places purchased by the
Consent of the Legislature of the State in which the
Same shall be, for the Erection of Forts, Magazines,
Arsenals, dock-Yards, and other needful Buildings;

1045

Since Article I, Section 8, Clause 17 is neither a grant
of authority to regulate mines nor a restriction on the federal
authority, it is necessary to look elsewhere in the Constitution
for such authority.
The grant of aqthority to regulate mines rests in the
"Commerce Clause" 3 1 contained in Article I, Section 8,
Clause 3 of the Constitution.
It is apparent, with such a grant of authority, that Congress enacted the Mine Act and defined commerce as it relates
to mining. Specifically, in Section 4 of the Act, Congress
stated:
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 chapter.
Further, "Commerce" is defined in the 1969 Act as follows:
[C]ommerce means trade, traffice, commerce,
transportation or communication among the
several states, or between a place in a state
and any place outside thereof, or within the
District of Columbia, or a possession of the
United States, or between points within the
same state but through a point outside thereof.
The use of the phrase "which affect commerce" in the Act,
indicates the intent of Congress to exercise the full reach of
its constitutional authority under the commerce clause. See:
Brennan v. OSHA, 492 F.2d 1027 (2d·Cir. 1974)1 United State'S
v. Dye Construction Co., 510 F.2d 78 (10th Cir. 1975)1 Polish
National Alliance v. NLRB, 332 U.S. 643 (1977).

11

The cited portion of the Constitution provides that Congress
shall have the right
to regulate Commerce with foreign Nations and
among the several States, and with the Indian
Tribes.

1046

In Perez v. United States, 402 U.S. 146 (1971), it was held
that Congress may make a finding as to w.hat activity affects
interstate commerce, and by doing so it obviates the necessity
for demonstrating jurisdiction under the commerce clause in
individual cases.
In short, mining is among those classes of activities which
are regulated under the Commerce Clause and thus is among those
classes which are subject to the broadest reaches of federal
regulation because the activities affect interstate commerce.
Marshall v. Kraynqk, 457 F. Supp. 907 CW.D. Pa. 1978), aff'd,
604 F.2d 231 (3d Cir. 1979), cert. denied, 444 U.S. 1014 (1980).
Further, the legislative history of the Act as well as court
decisions, encourage a liberal reading of the definition of a
mine found in the Act in order to achieve the Act's purpose of
protecting the safety of miners. Westmoreland Coal Company v.
Federal Mine Safety and Health Review Commission, 606 F.2d 417
(4th Cir. 1979). See also: Godwin v. Occupational Safety and
Health Review Commission, 540 F.2d 1013 (9th Cir. 1976), where
the court held that urisafe working conditions of one operation,
even if in initial and preparatory stages, influences all other
operations similarly situated, and consequently affect interstate
commerce.
The courts have consistently held that mining activities
which may be conducted affect commerce sufficiently to subject
the mines to federal control. See: Marshall v. Kilgore, 478 F.
Supp. 4 CE.D. Tenn. 1979)1 Secretary of the Interior v. Shingara,
418 F. Supp. 693 (M.D. Pa. 1978)1 Marshall v. Bosack, 463 F.
Supp. 800, 801 (E.D. Pa. 1978). Likewise, Commission judges
have held that intrastate mining activities are covered by the
Act because they affect interstate commerce. See: Secretary of
Labor v. Rockite Gravel Company, 2 FMSHRC 3543 (December 1980)1
Secretary of Labor v. Klippstein and Pickett, 5 FMSHRC 1424
(August 1983)1 Secretary of Labor v. Haviland Brothers Coal Com~' 3 FMSHRC 1574 (June 1981)1 Secretary of Labor v. Mellott
Trucking Company, 10 FMSHRC 409 (March 1988).
In a prior decision involving the Secretary and Sanger, Commission Judge August F. Cetti ruled against Sanger's "territorial
jurisdictional" argument. Sanger Rock & Sand, 11 FMSHRC 403
(March 1989).
Sanger also argues that the state of California has its own
laws and regulations that protect the safety and health of its
citizens. Therefore, the federal government lacks jurisdiction
in California.

1047

This argument has been raised in a number of cases. Commission judges have consistently held that state and federal OSHA
statutes do not preempt the 1977 Mine Act. See: Brubaker-Mann,
Inc., 2 FMSHRC 227 (January 1980); Valley Rock and Sand Corporation, 4 FMSHRC 113 (January 1982); Black River Sand and Gravel,
Inc., 4 FMSHRC 743 (April 1982); San Juan Cement Company, Inc.,
2 FMSHRC 2602 (September 1980); Sierra Aggregate Co., 9 FMSHRC
426 (March 1987). I agree with these holdings, and I also note
that section 506 of the 1977 Mine Act permits concurrent state
and federal regulation. Under the federal supremacy doctrine,
a state statute is void to the extent that it conflicts with a
valid federal statute. Dixie Lee Ray v. Alantic Richfield Com~' 435 U.S. 151, 55 L. Ed. 2d 179 (1978); Bradley v. Belva
Coal Company, 4 FMSHRC 982, 986 (June 1982).
For the foregoing reasons, Sanger's "territorial jurisdictional" argument in support of its motion to dismiss is denied.
Sanger also asserts that the Secretary's citaions should be
vacat~d because she has not complied with 5 u.s.c. § 552,
a
portion of the Administrative Procedure Act.

ii

!/

The cited statute, a portion of the Administrative Procedure
Act, provides in part as follows:
(a) Each agency shall make available to the public
information as follows:
Cl>
Each agency shall separately state and currently
publish in the Federal Register for the guidance of the
public-(A) descriptions of its central and field organization and the established places at which, the employees
(and in the case of a uniformed service, the members) from
whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
CB)
statements of the general course and method
by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
CC> rules of procedure, descriptions of forms
available or the places at which forms may be obtained,
and instructions as to the scope and contents of all
papers, reports, or examinations;
(footnote continued on next page)

1048

In particular, Sanger states the inspector only presented
his I.D. card at the time of the inspection. However, the I.D.
card did not show his title, authority, or other relevant matters.
In dealing with its citizens, Sanger believes the government, through the federal register, must at least show the inspector's duties, delegated authority, as well as MSHA's central
and field organizations.
In its post trial brief Sanger asserts that MSHA's failure
to publish in the Federal Register has adversely affected it as
a member of the public. Some, but not necessarily all, of the
adverse effects are as follows:
(A) Representatives of the Secretary overstepping their authority with no way for the public to
know what that authority is.
(B) Not knowing the "chain of command" in any
government agency renders the public at an extreme disadvantage when dealing with that agency.
(C) How, where, and to whom are complaints registered in regard to misconduct by a representative of the
Secretary if the organization plans are not published?
(D)
Due process is most important to the public
including mine operators, and without the knowledge of
how that can be obtained in MSHA's scheme of operations
leaves them vulnerable to the whims of various individuals.
(E) Assessments arising from unauthorized actions
of agency "employees".
(F) Sanger has been subjected to possible adverse
effects due to an investigation by Mr. Alvarez CMSHA inspector) during which he demanded and received company
records to which he may not have had the authority to see.
This investigation took place on March 3, 1989. A citation
was issued and the disposition is still pending with adverse effects likely •

.!/

(Continued)
(D)
substantive rules of general applicability
adopted as authorized by law, and statements of general
policy or interpretations of general applicability formulated and adopted by the agency; and
CE)
foregoing.

each amendment, revision, or repeal of the

1049

Sanger also attaches to its brief a federal register publication~/ of Friday, March 31, 1978, dealing with a delegation
of authority and assignment of responsibility for mine safety and
health programs. However, Sanger asserts such publications do
not satisfy the A.P.A.
The Secretary's contrary positions will be hereafter considered.
Discussion
Publication: Section 552(a)(l) of the A.P.A. requires each
agency to separately state and publish in the Federal Register
"descriptions of its central and field organization and the
methods whereby the public may obtain information, make submi ttals or requests or obtain decisions."
An agency of the federal government is defined by 44 u.s.c.
1501. 6/ The Mine Safety and Health Administration (MSHA) is
such an agency. However, MSHA has not complied with this above
cited A.P.A.
The Secretary's post trial brief does not refer to any
relevant publication nor has the judge located any such publication in the Register nor in its codification showing MSHA's
"central and field organizations." 7/ The statutory directive
is explicit as to what must be published.
~/

Federal Register, Vol. 43, No. 63.

6/ The above cited provision, as it relates to the Federal
Register and the Code of Federal Regulations, contains the
following definition:
"Federal agency" or "agency" means the President
of the United States, or an executive department,
independent board, establishment, bureau, agency,
institution, commission, or separate office of the
administrative branch of the Government of the
United States but not the legislative or judicial
branches of the Government.
7/ Many matters under the Secretary's jurisdiction have been
published in the Federal Register and recodif ied in the Code of
Federal Regulation CCFR). See various subjects published in
C.F.R. 20, 29, 30, 41, 48 and 50. Volume 30, Part I establishes
MSHA's official emblem and the balance of 30 C.F.R. generally
deals with mining.
Included in 30 C.F.R. are the Secretary's
mandatory regulations relating to mining.

1Q50

Rather, the Secretary argues Sanger's defense is irrelevant
because the rights afforded MSHA employees to make inspections,
etc., do not constitute a delegation of ·any authority vested in
the Assistant Secretary of Labor [for MSHA]. Particularly, the
Mine Act empowers authorized employees of MSHA to engage in the
activities enumerated in Section 103{a) of the Act.
I reject the Secretary's position.
It is well established
In short, the
that statutes should be construed together.
authority in the Mine Act does not override MSHA's obligation
to comply with the A.P.A.
Secondly, the Secretary argues that the Office of the
Solicitor {of Labor) is not a federal agency. Accordingly, the
Solicitor does not promulgate rules and regulations which have
general applicability and legal effect.
The judge believes this argument involves a mis-communication. A fair reading of Sanger's argument at the hearing as well
as its post trial brief indicates a focus directed to MSHA, not
to the Solicitor.
The Secretary also argues that Sanger has not been adversely
affected by the lack of any publication.
The statute does not require that an individual be adversely
affected by a failure to publish. The Secretary's case in
support of that position is misplaced.
In U.S. v. Fitch Oil
Company, 676 F.2d 673 (1982) {Temp. Em. C.A.) appellant relied on
the fact that the Department of Energy's {DOE) "audit policy" had
been revoked. The appellate court held that such revocation did
not vest any constitutional or statutory right in respondent oil·
company or its officers that would invalidate subpoenas for
books, etc., previously issued. The Court ruled that the "audit
policy" was not a legislative rule by designation or substance.
It, was intended to govern internal agency procedures and was
therefore not binding on the DOE.
In the instant case, except
for the publication of the regulations, 30 C.F.R. § 56.14007 and
30 C.F.R. § 56.12028, no publication was made.
In particular,
there was no publication of MSHA's "central and field organization
for the guidance of the public."
For a precise articulation of the applicable law I find
Rowell v. Andrus, 631 F.2d 699 (1980), {10th Cir.) and United
States v. Two Hundred Thousand Dollars ($200,000) in United
States Currency, 590 F. Supp. 866 (1984) to be persuasive.
See.also, Pinkus v. Reilly, 157 F. Supp. 548, D.C.,N.J. (1957).

1051

In Rowell the Secretary of the Interior published in the
Federal Register a regulation in final form.
The difficulty
was the publication was entered less than 30 days before its
effective date.
On appeal the 10th Circuit Court of Appeals invalidated
the published rule and action thereunder because it was published
less than 30 days before its effective date as required by
Section 553Cd) of the A.P.A~, 631 F.2d at 702.
In United States v. Two Hundred Thousand Dollars ($200,000)
in United States Currency, the United States Customs Department
seized $200,000 at an airport. The Court invalidated the
forfeiture because Customs failed to satisfy 5 u.s.c. § 552
(a)(l)(c).
In short, Customs' form should have been published in the
Federal Register, 590 F.Supp. at 870, 871.
The Secretary also argues that to prevail Sanger must show
actual prejudice which bears upon the violations for which the
company was cited.
In the situation presented here the record does not reflect
that Sanger knew MSHA's central and field organizations.
If
Sanger knew of the matters that should have been published, then
it could hardly have asserted this defense.
However, in this
case Sanger claims to have been prejudiced.
In Citation No.
3074994, Sanger was cited for violating 30 C.F.R. § 56.12028.
One of Sanger's objections was that the company had no way of
knowing nor any way to check whether it was obliged to turn over
ground system testing reports to the MSHA inspector.

!1

_!!/

The regulation provides:
§

56.12028

Testing grounding systems.

Continuity and resistance of grounding systems
shall be tested immediately after installation,
repair, and modification1 and annually there-.
after. A record of the resistance measured
during the most recent tests shall be made
available on a request by the Secretary of his
duly authorized representative.

1052

The final argument presented by the Secretary is that the
selection of Mr. Alvarez as an authorized employee of the Mine
Safety and Health Administration is a matter expressly exempted
from the requirements of the A.P.A.
I agree. Internal personnel rules and practices are exempt.
In 5 u.s.c. § 552 (b)(2) an exception appears where the material
sought "(2) related solely to the internal personnel rules and
practices of an agency."
However, the main thrust of Sanger's case seeks information
showing the inspector's duties, delegated authority as well as
MSHA's central and field organizations.
Such matters are clearly
within the statutory mandate.
The Secretary's position is no doubt somewhat difficult.
She is charged with enforcing the Mine Safety Act. On the other
hand she is obligated to comply with the direct statutory mandate
discussed herein. It is the writer's view that if the Secretary
now publishes in the Federal Register such publication, if otherwise correct, could be effective 30 days thereafter. Rowell v.
Andrus, supra, 631 F.2d at 705. However, such publication will
not affect this operator and, for the reasons stated herein,
these cases should be dismissed.
Sanger seeks an order dismissing MSHA's citations herein.
Since Sanger's motion of dismissal is to be granted it is not
necessary to consider any additional issues raised in the case.
ORDER
1. In WEST 88-275-M:
ties therefor are vacated.

Citation No. 3076869 and all penal-

2.
In WEST 89-71-M:
therefor are vacated.

Citation No. 3074994 and all penalties

3.

WEST 88-275-M and WEST 89-71-M are dismissed.

Law Judge

1053

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

MAY 221990

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 89-104-M
A.C. No. 14-00483-05505

v.
Vic's Sand Pit
VIC'S SAND & GRAVEL COMPANY,
Respondent
DECISION
Appearances:

Oscar L. Hampton, III, Esq., Office of the
Solicitor, U.S. Department of Labor, Kansas City,
Missouri, for the Petitioner;

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding filed by the petitioner
against the respondent pursuant to section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. §. 820(a).
Petitioner seeks a civil penalty assessment in the amount of $50 for
an alleged violation of mandatory injury reporting standard
30 C.F.R. § 50.20, as stated in a section 104(a) Citation
No. 2651810, served on the respondent by MSHA Inspector James G.
Enderby, on January 25, 1989. The condition or practice cited is
as follows:
A employee of the company was seriously injured in
July 1988 that required medical attention and was lost
time away from work.
The company did not file a MSHA
Form 7000-1 within the required time for reporting.
All injuries to anyone that occurs on the mine property
are required to be reported to MSHA within 10 days of
occurrence.
The respondent contested the citation, and pursuant to
notice served on the parties, a hearing was convened in Wichita,
Kansas, on April 25, 1990. The petitioner appeared, but the

1054

respondent did not.
The hearing proceeded in the absence of the
respondent, and the petitioner presented testimony and evidence
in support of the citation.
Issues
The issues presented in this case are (1) whether or not the
respondent violated the cited standard, and if so, the appropriate civil penalty that should be imposed for the violation,
and (2) whether or not the respondent's failure to appear at the
hearing constitutes a waiver of its right to be further heard in
this matter.
Applicable statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i).

3.

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

The Respondent's Failure to Appear at the Hearing
The record clearly establishes that the respondent received
notice of the time and place of the hearing by certified mail.
When its representative Vic Eisenring failed to appear, I telephoned his office in Wichita and was advised by his secretary
that the respondent had mailed a check to MSHA on Friday,
April 20, 1990, in payment of the civil penalty assessment and
that the respondent did not attend to appear at.the hearing. The
petitioner's counsel informed me that he was not aware of any
payment made by the respondent for the violation in question, and
that his attempts to contact the respondent prior to the hearing
were fruitless.
Under the circumstances, the hearing proceeded
in the absence of the respondent, and the petitioner presented
its case.
On May 4, 1990, I issued an Order to Show Cause to the
respondent (Vic Eisenring) affording him an opportunity to
explain why he should not be defaulted and a summary decision
entered ordering payment of the civil penalty because of his
failure to appear at the hearing or otherwise inform me that he
would not appear.
By letter dated May 11, 1990, the respondent filed a reply
to my show-cause order. Mr. Eisenring asserted that he has paid
the civil penalty assessment. With regard to his failure to
appear at the hearing, Mr. Eisenring states that a family emergency prevented his appearances, and that the hearing notices

1055

contained no instructions that he was to telephone the presiding
judge if he could not appear.
The record reflects that Mr. Eisenring's office is in
Wichita, and the hearing was held in that same city. When I
telephoned Mr. Eisenring's office on the morning of the hearing
and spoke to his secretary, she said nothing about any emergency
and simply stated that Mr. Eisenring had mailed a check to MSHA
in payment of the civil penalty and would not appear at the
hearing. Notwithstanding the family emergency, and taking into
account the fact that Mr. Eisenring's secretary informed me that
he had mailed the check to MSHA on Friday, April 20, 1990, 5-days
prior to the scheduled hearing, I believe it is reasonable to
conclude that Mr. Eisenring did not intend to appear at the
hearing.
With regard to.Mr. Eisenring's failure to communicate with
me, as previously noted, the hearing was scheduled in the same
city where his office is located. The Amended Notice of Hearing
which Mr. Eisenring received by certified mail on April 19, 1990,
informed him of the location of the hearing in Wichita, and my
office telephone number is listed in the notice.
Notwithstanding
the fact that the hearing notice did not specifically instruct
Mr. Eisenring to contact the court if he did not intend to appear
at the hearing, since the hearing was convened in Wichita to
accommodate Mr. Eisenring, and since the hearing notice included
the location of the hearing and my office telephone number, I do
not find it unreasonable to expect Mr. Eisenring or his secretary
to simply call my office, or the district court in Wichita where
the hearing was convened, to inform me that he would not appear.
In view of the foregoing, I conclude and find that pursuant
to Commission Rule 63, 29 C.F.R. § 2700.63, the respondent is in
default, and that his failure to appear constitutes a waiver of
his right to be further heard in this matter.
Petitioner's Testimony and Evidence
MSHA Insoector James G. Enderbv testified that he conducted
an inspection at the respondent's site on December 20 or 21,
1988, and noticed that one of its employees, Hollis Pridgett, was
wearing a cast o.n his foreman.
Mr. Pridgett explained that he
was injured while repairing a tire in the shop. Mr. Pridgett
stated that while filling a tire with air, it did not "bead"
properly and it jumped off the tire stand and struck his arm and
wrist causing a simple fracture to his forearm and multiple
fractures to his wrist.
He received medical attention and extensive surgery to his wrist and he missed several work days.
Mr. Enderby stated that Mr. Pridgett informed him that the
tire belonged to the respondent and that he was preparing to put

1056

it on his personal pick-up truck which was used for the benefit
of the respondent in picking up equipment.
Mr. Enderby stated that the respondent's owner Vic Eisenring
informed him that he had telephoned MSHA's-office in Denver and
the state workmen's compensation inspector and was told that he
was not required to report the injury. Mr. Enderby stated that
he reviewed the respondent's telephone records for July and
August, 1988, and found no record of any long distance out-ofstate calls to Denver. Mr. Eisenring could not recall who he
spoke with and indicated that it may have been an 11 800 11 number.
Mr. Enderby then advised Mr. Eisenring that it was his opinion
that the injury had to be reported. He then advised
Mr. Eisenring to fill out and file an MSHA Form 7000-1, injury
report and to.attach a letter to it explaining the circumstances
of the injury so that his supervisor could review it and make a
determination as to whether a citation should be issued because
of the respondent's failure to report the injury within 10 days
as required by section 50.20.
Mr. Enderby stated that during a follow-up inspection on
January 25, 1989, he issued several citations and asked
Mr. Eisenring whether he had mailed in the injury report which
they had previously discussed. Mr. Eisenring responded that he
mailed it and then left the property. Mr. Enderby then asked
Mr. Eisenring's secretary, Cecilia Taylor, whether she had mailed
the report and she informed him that she had not mailed the
report because "it was tax time." Mr. Enderby then issued the
citation. He also telephoned his office and determined that the
report which Mr. Eisenring claimed he had mailed had not been
received.
Mr. Enderby stated that he subsequently spoke with
Mr. Eisenring about the matter and that Mr. Eisenring "used some
profanities" and informed him that he "would take him to court"
and contest the citation.
Mr. Enderby identified exhibit P-1 as a copy of Form 7000-1,
filed by Mrs. Taylor on January 25, 1989, after the citation was
issued.
The report was submitted to MSHA's Denver, Colorado
office, and Mr. Enderby stated that he received a copy of the
report in his office on February 17, 1989. He then terminated
the citation that same day.
The report reflects that
Mr. Pridgett was injured on July 15, 1988, while he "was working
on his personal tire and was mounting the tire on a rim and the
tire exploded." It also reflects that Mr. Pridgett injured his
"hand-arm," missed 102 days of work, and that he "still is
restricted."
Mr. Enderby stated he made a finding of "high negligence"
because MSHA's policy guidelines require such a finding in cases
concerning reporting violations pursuant to section 50.20, unless

1057

there are mitigating circumstances. Mr. Enderby confirmed that
there were no such mitigating circumstances in this case.
Mr. Enderby confirmed that he did not consider the violation
to be "significant and substantial" because it was not reasonably
likely to result in any injury. He did not believe that the
respondent exhibited good faith compliance because the injury was
not reported until 33 days after he had previously advised
Mr. Eisenring to report it and submit an explanatory letter when
he discussed the matter with him in December, 1988. In addition,
the injury which occurred on July 15, 1988, was not reported
until approximately 5 months later.
Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
reporting standard 30 C.F.R. § 50.20, which requires a mine
operator to report an occupational injury within 10 working days
after its occurrence. The term "occupational injury" is defined
by section 50.2(e) in pertinent part as follows:
Any injury to a miner which occurs at a mine for which
medical treatment is administered, or which results in
* * * inability to perform all job duties on any day
after an injury, * * *·
The evidence in this case clearly establishes that
Mr. Pridgett suffered serious injuries to his arm and wrist on
July 15, 1988, that he received medical treatment for his
injuries, and was incapacitated and missed work for a number of
days immediately following his injuries.
Contrary to the respondent's assertion that the injury occurred when Mr. Pridgett was
performing work on his personal tire for his pick-up, the inspector's credible testimony reflects that the truck was to be used
by Mr. Pridgett in performing services for the respondent.
Even
if I were to accept the respondent's assertions that Mr. Pridgett
was working on his own personal vehicle, the applicable definition of "occupational injury" makes no such distinctions. The
evidence establishes that the injury occurred at the mine, that
medical treatment was administered, and that the injury resulted
in Mr. Pridgett's inability to perform his job duties on any day
following his injuries. Under the circumstances, all of the
criteria for reporting such an injury were met and I conclude and
find that the injury was an "occupational injury" which was
required to be reported by the respondent within 10 days of its
occurrence.
The respondent clearly did not do so. Accordingly,
I conclude and find that the petitioner has established a violation of section 50.20, by a preponderance of the evidence, and
the citation issued by Inspector Enderby IS AFFIRMED.

1058

Size of Business and Effect of Civil Penalty Assessment on the
Respondent's ·Ability to Continue in Business
Exhibit P-2, a summary of the respondent's mine production,
reflects 6,267 manhours worked in Calendar-Year 1988. Inspector
Enderby testified that the respondent employed four persons "on
site," and also used the services of two truck drivers. He
considered the respondent to be a small mine operator engaged in
the sand and gravel business, and he stated that the principal
product is sand which is sold and used in construction, for road
materials, and in the production of concrete.
The respondent failed to appear in this case.
In the
absence of any evidence to the contrary, I cannot conclude that
the civil penalty assessed by me for the violation in this case
will adversely affect the respondent's ability to continue in
business.
I conclude and find that the respondent is a small mine
operator, and I have taken this into consideration in assessing a
civil penalty for the violation which I have affirmed.
History of Prior Violations
Exhibit P-2, a summary of the respondent's prior history of
assessed violations (excluding single penalty assessments timely
paid) reflects that the respondent paid civil penalty assessments
for one violation in 1986, and one violation in 1987. Inspector
Enderby confirmed that the respondent had not previously been
charged with any reporting violations pursuant to Part 50,
Title 30, Code of Federal Regulations.
I conclude and find that the respondent has a good compliance record and I have taken this into consideration in this
case.
Gravity
I conclude and find that the violation was non-serious.
Negligence
Although the record in this case, including the respondent's
answer, suggests that the respondent may have been informed that
it was not required to report the injury, I find no credible or
probative evidence to confirm or corroborate this assertion by
the respondent.
Further, there is no evidence to establish that
the respondent ever filed the required injury report until after
the inspector issued the citation on January 25, 1989.
I find the inspector's testimony that he advised
Mr. Eisenring on December 20, or 21, 1988, to file the required

1059

report to be credible. Mr. Eisenring apparently failed to follow
the inspector's advice, and I find no evidence to support any
conclusion that the report was timely filed. Under all of these
circumstances, I agree with the inspector's high negligence
finding and it is affirmed.
Good Faith Compliance
I find the inspector's testimony that he advised
Mr. Eisenring of his opinion that the injury sustained by
Mr. Pridgett on July 15, 1988, was required to be reported to be
credible.
In my view, the inspector acted reasonably and
afforded Mr. Eisenring an opportunity to submit the report with
an explanation as to why he had not filed it earlier.
Mr. Eisenring failed to do so. Under the circumstances, I agree
with the inspector's conclusion that the respondent failed to
exercise good faith in timely complying with the requirements of
the cited standard.
Civil Penalty Assessment
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section llO(i) of the
Act, I conclude and find that the proposed civil penalty assessment of $50, for the violation which has been affirmed is reasonable and appropriate. Accordingly, IT IS AFFIRMED.
ORDER
If it has not already done so, the respondent IS ORDERED to
pay a civil penalty assessment in the amount of $50, to MSHA
within thirty (30) days of the date of this decision and order.
Upon receipt of payment, this matter is dismissed.

~A/;~

Administrative Law Judge

Distribution:
Oscar L. Hampton, III, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 2106, 911 Walnut Street, Kansas City,
MO 64106 (Certified Mail)
Vic Eisenring, Owner, Vic's Sand & Gravel Company, 4620 West 21st
Street, Wichita, KS 67212 (Certified Mail)
/fb

1060

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

MAY 221990

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 89-73-M
A.C. No. 16-00039-05505

v.
Lebanon Quarry
LEBANON ROCK INCORPORATED,
Respondent
DECISION
Appearances:

Susan M. Jordan, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Robert M. Mumma II, President, Lebanon Rock,
Incorporated, Harrisburg, Pennsylvania, Pro se,
for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for
two alleged violations of certain mandatory safety standards
found in Part 56, Title 30, Code of Federal Regulations. A
hearing was held in Harrisburg, Pennsylvania, and the parties
waived the filing of posthearing briefs. However, they presented
oral arguments at the close of the hearing, and I have considered
these arguments in the course of my adjudication of this matter.
Issues
The issues presented in this case are (1) whether the
respondent violated the cited mandatory safety standards,
(2) whether the violations were "significant and substar:itial"
(S&S), and (3) the appropriate civil penalties to be assessed

1061

pursuant to the civil penalty assessment criteria found in
section llO(i) of the Act. Additional issues raised by the
parties are identified and disposed of in the course of this
decision.
Applicable statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301, et seq.
2. Sections 56.9006 and 56.12016, Title 30, Code of Federal
Regulations.
3.

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

Stipulations
The parties stipulated to the following (Tr. 6-7):
1. The Lebanon Quarry is owned and operated by
the respondent and it is subject to the jurisdiction of
the Act.
2. The presiding judge has jurisdiction to hear
and decide this matter.
3. The violations were timely abated by the
respondent.
4. The quarry production is approximately 200,000
tons a year. The quarry produces high calcium
limestone (Tr .. 28).
5. The respondent's history of prior violations,
as shown by an MSHA computer print-out, reflects a
favorable history of compliance.
6. Payment of the proposed civil penalty assessments will not adversely affect the respondent's ability to continue in business.
7. The respondent owns the property where the
subject quarry is located and it shares the property
with the Elco Concrete Company.
Discussion
The facts and evidence in this case establish that an accident occurred on May 25, 1988, at a portable limestone crushing
and processing plant owned and operated by the respondent.
Patrick Werth, a laborer who sometimes operated the crusher, was
injured while performing work repairing the skirting on a return

1062

belt. Mr. Werth had turned the belt off by using a push button,
but he did no:t lock the belt out with a lock which was provided
and available at the electrical switchbox location. While he was
performing this work, the crusher operator and a loader operator
were attempting to dislodge a rock which was stuck in the crusher
jaws. The crusher and crusher take-away belt were running while
this work was going on, and this was a normal and acceptable
operating procedure when rocks are stuck in the crusher.
After freeing the rock, the loader operator who was helping
the crusher operator, started the return belt which Mr. Werth was
working on. Mr. Werth was standing on a portion of the return
belt which was not visible from the location where the crusher
and loader operator were working, and they could not see
Mr. Werth because the view was obstructed by the belt structure
and framework. No signal or warning was sounded before the
return belt was started up, and since it was not locked out,
Mr. Werth was drawn through a 15-inch high opening and suffered
cracked vertebrae. When the crusher operator realized that
Mr. Werth was on the belt when it started up, he immediately shut
it down by using the same push button used by Mr. Werth to turn
the belt off. The push button was located at the crusher station
where the crusher and loader operator were working to free the
rock.
As a result of the accident, MSHA Inspector Andrew Nawa
conducted an investigation, and after completing it he issued the
following citations:
Section 104(a) "S&S" Citation No. 2626303, May 26, 1988,
cites an alleged violation of 30 C.F.R. § 56.12016, and the cited
condition or practice is described as follows:
The plant helper or laborer was injured while
repairing the return belt conveyor skirting. The
helper was on the belt while other employees were
working on the primary crusher trying to free a hangup. When the hang-up was cleared the conveyor belts
were started. A lock-out system was provided but not
used.
Section 104(a) "S&S" Citation No. 2626304, May 26, 1988,
cites an alleged violation of 30 C.F.R. § 56.9006, and the cited
condition or practice is described as follows:
A start-up signal was not provided for the crushing plant. An employee was injured while in a confined
space and not provided with adequate warning of the
start-up of the plant.

1063

Petitioner's Testimony and Evidence
Patrick Werth testified that he was employed by the respondent as a laborer and was laid off on December 17, 1989. He
confirmed that he was working at the mine on May 25, 1988, when
he was injured when he was caught under a brace on the return
belt of the portable plant when the belt was started up while he
was standing on it while repairing the belt skirting.
Mr. Werth stated that he went to the belt area to work on
the belt after he had helped two other employees, Mr. Stanley
Deck and Mr. Alberto Rolon, free up a rock which was stuck in the
crusher jaw. He confirmed that he had shut the belt down by
turning it off at a switch box which was located at the platform
which was over the crusher where the work to free the rock was
taking place. The switch box was approximately 100 feet from
where he was working on the belt skirting. He also confirmed
that he told Mr. Rolon and Mr. Deck that he was going to work on
the return belt.
Mr. Werth stated that he had worked for the respondent for
9 weeks before he was injured and that he received no training
during his employment. He stated that on the day he started work
he was instructed to go to the crusher and that another employee
told him what to do. He identified his boss during the 9 weeks
of his employment as Mr. Doug Glasford, who he identified as the
quarry foreman or superintendent (Tr. 14-19).
Mr. Werth stated that the entire length of the return belt
on which he was working could not be seen from the starting
switch box location and that the view along 10 feet of the belt
was obstructed by the belt bracing (Tr. 20).
Mr. Werth stated that he suffered three cracked vertebrae
when he was caught in the belt bracing and was hospitalized for
7 days. He was out of work for a year and 2 months, cannot lift
heavy objects, and he sometimes has pain (Tr. 20).
On cross-examination, Mr. Werth explained what he was doing
while attempting to free the rock lodged in the crusher and he
confirmed that the crusher and crusher belt were both in operation. He confirmed that if the rock were freed, it would have
dropped through the crusher and onto the running belt, and that
it would have jammed the return belt which he had shut off when
it reached that point. He conceded that the shutting down of the
return belt was not normal procedure, and that normally all of
the belts are started before the crusher is started (Tr. 22).
In response to further questions, Mr. Werth confirmed that
operating the crusher while attempting tJ free the rock was
normal procedure because the crusher vibration will help free the
jammed rock (Tr. 25). He confirmed that he had never heard about

1064

the belt lock out procedure and that the switch which he used to
shut off the .return belt was a push button on/off switch. There
was no switch at the location where he was working on the return
belt skirting, and in order to start and stop the belt, he would
have to go to the switch located at the crusher platform (Tr.
28-29).
Mr. Werth stated that after the rock was cleared from the
crusher Mr. Deck started up all of the belts after he saw the
rock go down the crusher. He confirmed that Mr. Rolon quickly
stopped the return belt because he knew that he was there (Tr.
30) .
Andrew Nawa, self-employed, testified that he was formerly
employed by MSHA as a district health specialist and left in
August, 1988. He confirmed that he visited the mine on May 26,
1988, to conduct an investigation of the accident concerning
Mr. Werth. He identified exhibit G-1, as the accident report
which he prepared. He explained his findings and confirmed that
he issued the citations in question (Tr. 31-39).
Mr. Nawa confirmed that he issued Citation No. 2626303,
citing a violation of 30 C.F.R. § 56.12016, because the power
switches for the belt conveyors were not locked out while
Mr. Werth was performing his work (Tr. 39, exhibit G-2). He
confirmed that locks were provided by the respondent in the
control trailer where the electrical power switches for the plant
were located. The locks were provided for the lockout system,
and they were hanging on the wall. However, they were not.used
to lock out the belt conveyors and no warning signs were posted.
The belts should have been locked out in the trailer where the
off/on switch was located and at the primary crusher area by the
person who shut it off (Tr. 41-42).
Mr. Nawa stated that the violation was significant and
substantial because an accident occurred and that if a belt
starts up and moves when someone is not expecting it, he could
sustain injuries ranging from a pinched finger to a fatality.
He
stated that there is "a vast history of accidents of people
getting hurt that way." Since the accident occurred, the likelihood of injury was high (Tr. 42).
Mr. Nawa stated that he based his high negligence finding on
the fact that an order had been issued approximately a month
earlier at the site for failure to use a lockout system which was
available. He believed that the order was served on Elco
Concrete Products, but that the management at the site was aware
of what transpired (Tr. 43).
Mr. Nawa confirmed that he issued Citation No. 2626304,
citing a violation of section 56.9006, for the failure by the
respondent to provide and use a start-up signal before starting

1065

the conveyor belts (Tr. 43). Petitioner's counsel asserted that
the cited standard has been redesignated as section 56.14201, as
part of Title 30, Code of Federal Regulations, effective July 1,
1989 (Tr. 45, exhibit G-4). Counsel confirmed that the standard
in effect at the time the citation was issued is essentially the
same, and the respondent agreed:(Tr. 45-46).
Mr. Nawa stated that he cited a violation of section
56.9006, because the accident occurred when Mr. Werth was in a
position where he could not be seen from the location of the
start-up switch and no signal system was provided. He confirmed
that the entire length of the belt was not visible from either of
the two belt start-up positions and that he personally determined
that this was the case and that no warning systems were installed
on any of the belts (Tr. 47-48).
Mr. Nawa confirmed that the violation was significant and
substantial because the accident occurred, the lack of a start-up
signal can result in serious accidents, and he was personally
aware of injuries resulting from the lack of such a signal.
There was always a risk that someone will be caught in moving
machinery because they are not aware that it is going to move.
If a signal were used, a person would have time to stay clear of
the moving equipment (Tr. 48).
Mr. Nawa stated that he made a finding of moderate negligence because start-up signals were in use in other places at the
facility, and he was not sure that the respondent was aware of
the need for a signal at the cited portable plant (Tr. 49).
On cross-examination, Mr. Nawa confirmed that the prior
order was served on Elco Concrete Products and not on Lebanon
Rock, and he conceded that he was not sure about who the management personnel were who were operating at the same facility as
the respondent. However, he believed that there was continuity
among the same individuals and companies who operated at the
site. He stated that when he went to the site to investigate the
accident a lady serving as the scale master was vague as to who
was in charge of the respondent's operation and that 20 minutes
passed before anyone appeared and identified themselves as the
respondent's superintendent (Tr. 51-52).
In response to further question, Mr. Nawa confirmed that
Mr. Werth was not trained in the use of the lockout system, and
he doubted that Mr. Rolon and Mr. Deck received any training (Tr.
60) .
MSHA Metal/Non-Metal Inspector Elwood Frederick, testified
that he terminated Citation No. 2626304, after the respondent
installed a signal belt on the crusher oil pump to signal when it
was started and a siren which also sounded when the conveyor belt
system was started up. Mr. Frederick confirmed that he had

1066

previously inspected the respondent's plant in March, 1988, and
that he issued a combined section 107(a) order and 104(a) citation to Elco Concrete Products, Inc., citing a violation of
section 56.12016, for failing to lock out the primary crusher
main conveyor belt before performing work on the belt skirts
(exhibit G-5).
Mr. Frederick stated that the respondent and Elco operated
at the same quarry location and that the respondent owned the
land. He explained that prior to March, 1988, there was no
distinction between the two operations and they were conducted by
the same family, namely, the family of Mr. Mumma, the respondent's owner. Referring to his notes and an MSHA conference work
sheet which were attached to a copy of his order/citation,
Mr. Frederick stated that Mr. Doug Glasford was identified as the
respondent's plant superintendent, and that Mr. Richard Allwein
was identified as Elco's superintendent. He explained that
during his inspections of the quarry site, he encountered problems in identifying the specific family members or individuals
who were responsible for the respondent's and Elco's operations,
and that this was caused by a split among the family who had
interests in both operations. As a result of these problems,
Mr. Frederick assigned an MSHA independent contractor ID Number
to Elco so that he could distinguish it from the respondent's
operation.
He stated that Elco operated at the front of the
quarry site, and that the respondent operated to the rear of the
property near the quarry (Tr. 68-77).
On cross-examination, Mr. Frederick confirmed that during
his inspection on March 24, 1988, Mr. Glasford informed him that
he was the respondent's plant superintendent. Mr. Frederick also
confirmed that Mr. Allwein had worked at the quarry site for a
long time. He also believed that the respondent and Elco were a
part of a company known as Pennsy Supplies, in which Mr. Mumma
had an interest (Tr. 77-79).
Respondent's Testimony and Evidence
Robert M. Mumma II, respondent's president, explained the
operation of the plant portable crusher system which is used to
process high calcium limestone. He stated that when the plant
was originally purchased and installed, it was a complete
"turn-key" package which he believed included a belt alarm for
the crushing unit in question. He produced a copy of a March 2,
1987, proposal from the plant manufacturer and supplier which
includes the operational specifications for all of the portable
qrushing plant equipment (exhibit R-1). Referring to paragraph
two on page two of the specifications concerning the secondary
crushing unit, Mr. Mumma pointed out that they include an "oil
pressure/temperature alarm switch."

1067

Mr. Mumma stated that according to normal operating procedures all maintenance on the crushing plant is performed while
the plant is down and not in operation. He stated that when the
crusher unit is operating, all of the belt conveyors are supposed
to be running and that Mr. Werth should not have shutdown the
return belt with the "on-off" switch which he used, and that this
switch is intended to be used only in emergencies.
Mr. Mumma confirmed that he owns 50 percent of Lebanon Rock
and that his late father's "estate" owns 50 percent of the
company. He also confirmed that he has no interest in Elco
concrete, but that other family members have a controlling
interest in that company. He also confirmed that he has an
interest in several other inter-locking companies which he identified as Pennsy Supply and 11 999 11 •
Mr. Mumma denied that Mr. Glasford was employed by Lebanon
Rock as a superintendent or foreman, and he characterized him as
a "consultant" who worked on customer problems and other company
administrative matters. He confirmed that Mr. Glasford may have
interviewed prospective employees, including Mr. Werth.
Mr. Mumma confirmed that he had no knowledge as to whether the
respondent had any written safety rules and procedures, or any
written training program (Tr. 110-135).
Mr. Werth was called in rebuttal by MSHA, and he stated that
Mr. Glasford hired him for his job with the respondent and supervised his work "most of the time." Mr. Werth confirmed that he
knew Mr. Barnett, but denied that Mr. Barnett ever supervised or
instructed him as to his job duties (Tr. 136-139).
Findings and Conclusions
Fact of Violation - Citation No. 2626303
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 56.12016, which provides as follows:
Electrically powered equipment shall be deenergized before mechanical work is done on such equipment.
Power switches shall be locked out or other measures
taken which shall prevent the equipment from being
energized without the knowledge of the individuals
working on it. suitable warning notices shall be
posted at the power switch and signed by the individuals who are to do the work. Such locks or preventive
devices shall be removed only by the persons who
installed them or by authorized personnel.
The failure to deenergize electrically powered equipment and
to lock out power switches before any mechanical work is done on

1068

the equipment has been consistently held to constitute a violation of mandatory safety standard 30 C.F.R. § 57.12016, and the
identical standard section 56.12016, applicable to surface metal
and nonmetal mines. See: MSHA v. Adams stone Corporation,
7 FMSHRC 692, 706-707, (May 1985); MSHA v. ·FMC Corporation,
4 FMSHRC 1818, 1821-22 (October:1982), petition for Commission
review denied, November 16, 1982; MSHA v. Greenville Quarries,
Incorporated, 9 FMSHRC 1390, 1428 (August 1987); North American
Sand and Gravel Company, 2 FMSHRC 2017 (July 1980); Brown
Brothers Sand Company, 3 FMSHRC 734 (March 1981) ; Ozark-Mahoning
Company, 11 FMSHRC 859 (May 1989), aff'd by the Commission on
March 21, 1990; Price Construction Company, 7 FMSHRC 661 (May
1985) •
MSHA's credible and unrebutted evidence clearly establishes
that the crusher return belt on which Mr. Werth was standing and
working at the time of the accident was not locked out. The belt
is an electrically powered piece of equipment, and although it
was deenergized by Mr. Werth by the use of a push button, it was
not locked out at the main power switch as required by section
56.12016. Further, there is no evidence that the respondent took
other measures to prevent the return belt from being energized
and started without the knowledge of Mr. Werth while he was
working on it. Under all of these circumstances, I conclude and
find that MSHA has established a violation by a preponderance of
the evidence, and the citation IS AFFIRMED.
Fact of Violation - Citation No. 2626304
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 56.9006, which provides as follows:
When the entire length of a conveyor is visible
from the starting switch, the operator shall visually
check to make certain that all persons are in the clear
before starting the conveyor. When the entire length
of the conveyor is not visible from the starting
switch, a positive audible or visual warning system
shall be installed and operated to warn persons that
the conveyor will be started.
Section 56. 9.006 requires the installation and use of a
positive audible or visual warning system for a conveyor belt
when the entire length of the conveyor is not visible from the
starting switch. The purpose of this requirement is to provide a
warning to persons that the conveyor will be started.
In this
case, the credible and unrebutted testimony of Mr. Werth and
Inspector Nawa establishes that the portion of the return belt on
which Mr. Werth was standing was not visible from the starting
switch which was located at the crusher station where the loader
and crusher operator were working and from where the return belt
was started up after the rock was cleared from the jaws of the

1069

crusher. The evidence also establishes that Mr. Werth could not
be seen from that location.
In the answer filed by the respondent on June 14, 1989,
Mr. Mumma took the position that a start-up horn or signal would
not have been activated since the primary crusher was never
shutdown at the time Mr. Werth was performing work on the belt.
During the course of the hearing, Mr. Mumma pointed out that the
crusher equipment supplier's proposal and specifications for
crushing units include an oil pressure and temperature alarm
system and switches, and he explained that when the crusher unit
is started up the crusher unit alarm will sound until the oil
pressure is increased to a workable level. He suggested that
this alarm satisfies the requirements of the standard.
I take note of the fact that the crusher specifications
includes an electrical turnkey system wired to the main electrical generator source of power located and mounted in a plant
trailer. However, I find no provisions for any alarms or warning
devices installed on the belt conveyor components. The specifications include a remote start/stop button located on the work
platform adjacent to the primary crusher and feeder to allow the
plant operator to control the feed to the jaw crusher.
Inspector Nawa testified that the entire length of the
return belt was not visible from the control switch located at
the crusher platform area where the crusher and loader operator
were working to free the rock and that Mr. Werth was not in view
while he was standing on that portion of the belt which could not
be seen from the crusher platform location. Mr. Nawa confirmed
that there was no signal system in effect to warn Mr. Werth that
the return belt conveyor would be started by use of the switch
located at the crusher platform.
Inspector Frederick, the individual who terminated the
violation, testified that he did so after the respondent
installed a signal bell on the crusher unit oil pump to signal
when it was started, and also installed a siren which sounded
when the conveyor belt system was started. A copy of the violation notice of termination issued by Inspector Frederick reflects
the installation of these devices.
Although Mr. Mumma's testimony suggests that the crusher
unit alarm system was initially installed on the crusher unit as
part of the turnkey installation of the portable plant, the fact
remains that the return conveyor belt, which could be turned on
and off by use of a remote push button "on-off" switch located at
the crusher unit work platform, was not provided with an alarm,
or equipped to sound an audible alarm or warning when that belt
conveyor was again started up after it was turned off. Section
56.9006, requires the installation and use of such a warning
device when the entire length of the conveyor belt is not visible

1070

from the starting switch. Under the circumstances, I conclude
and find that MSHA has established a violation by a preponderance
of the evidence, and the citation IS AFFIRMED.
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 its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum the Secretary of Labor must
prove:
(1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is,
a measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498

1071

(April 1988); Youghiogheny & Ohio Coal company, 9 FMSHRC 2007
(December 1987).
I conclude and find that both of the citations issued by
Inspector Nawa involved significant and substantial violations of
the cited standards. The failure to lock out the power switch to
the conveyor belt resulted in serious injuries to Mr. Werth who
was standing on the belt conveyor performing work. He suffered
several broken vertebrae, was hospitalized, and missed many
months of work. Although the belt had been shutdown by means of
a push button, the power was not locked out, and when it was
started up again, Mr. Werth was drawn into the belt conveyor
support bracket opening and was injured. The accident could not
have occurred if the power switch had been locked out with the
locks which were available in the switch trailer. The seriousness of the hazard was exacerbated by the fact that Mr. Werth had
received no safety training and was not informed about the lockout procedures.
The failure to provide an audible belt conveyor start-up
signal contributed to the accident and injuries.
If such a
signal were in use when the belt was started, Mr. Werth may have
had an opportunity to jump off the belt and avoid the serious
injuries which he sustained. In addition, the evidence establishes that while working on the belt conveyor, Mr. Werth was out
of the view of the two individuals who were working to free the
rock from the crusher. Although Mr. Werth had helped work to
free the rock shortly before the accident, after he left the
platform area, further communications were not maintained, and
the belt was started without any prior signal to warn Mr. Werth,
who was out of the view of the person who started it.
In such
situations, it is reasonably likely that accidents of the kind
which occurred in this case will happen, with resulting injuries
of a reasonably serious nature. Under all of these circumstances, I conclude and find that the inspector's significant and
substantial findings with respect to both violations was clearly
justified, and they ARE AFFIRMED.
size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business
The evidence in this case reflects that the respondent is a
small limestone mine operator, and the parties have stipulated
that the payment of the civil penalty assessments for the violations in question will not adversely affect the respondent's
ability to continue in business.
History of Prior Violations
An MSHA computer print-out concerning the respondent's
history of prior violations reflects that for the period May 26,
1986 through May 25, 1988, the respondent made payment in the

1072

amount of $336 for six assessed violations, none of which are for
violations of the mandatory standards cited in this case. The
parties have stipulated that the respondent has a favorable
history of compliance, and I agree and adopt this as my finding
and conclusion on this issue.
Good Faith Compliance
The parties stipulated that the respondent timely abated the
violations in good faith.
I adopt this stipulation as my finding
and conclusion on this issue.
Gravity
In view of my significant and substantial (S&S) findings, I
conclude and find that both of the violations were serious. The
failure to lock out the return belt on which Mr. Werth was working when it was started resulted in serious injuries to
Mr. Werth.
Further, the failure by the respondent to provide an
audible or visual warning system for the crusher belt system,
particularly the return belt conveyor where Mr. Werth was working, contributed to the accident and resulting injuries. The
portion of the belt where Mr. Werth was standing was not visible
from the crusher station and Mr. Werth could not been observed by
the person who started up the belt. If a signal or warning had
been installed and used, Mr. Werth may have had an opportunity to
jump clear of the belt, and he probably would not have been
injured.
Negligence
Citation No. 2626304, 30 C.F.R. § 56.9006
The inspector found that this violation was the result of
moderate negligence on the part of the respondent.
I agree with
this finding and conclude and find that the violation resulted
from the respondent's failure to exercise reasonable ordinary
care.
Citation No. 2626303, 30 C.F.R. § 56.12016
Inspector :Nawa based his "high negligence" finding on the
fact that the respondent had been previously cited for a violation of section 56.12016, by Inspector Frederick on March 24,
1988, after he observed the plant operator preparing to work on
some belt skirts without locking out the belt power switch.
However, the evidence establishes that this prior violation was
served on Elco Concrete Products, Inc., and it is not included as
part of the respondent's history of prior violations. Conceding
that this is the case, the petitioner nonetheless suggests that
because the respondent's superintendent, Doug Glasford, was
present when the prior violation was issued, and was aware of the

1073

circumstances, the respondent had constructive notice of the
violation and the conditions cited, and should have taken appropriate steps to enforce its lockout procedures at the time of the
accident involving Mr. Werth.
Inspector Frederick testified that prior to his inspection,
the quarry was operated by Mr. Mumma's family and there was no
distinction between Lebanon Rock and Elco Concrete.
Mr. Frederick believed that Mr. Mumma had an interest in both
operations, but due to certain "inter-family" differences and
"turmoil" following the death of Mr. Mumma's father, he had
difficulty in identifying any specific family members or management officials who were responsible for each of these operations.
He explained that a separate MSHA Mine ID number was assigned to
Elco Concrete in order to distinguish it from the respondent's
operation, and a notation on an MSHA "conference sheet" which is
attached to a copy of the citation issued by Mr. Frederick
(exhibit G-5) reflects that "two different operations" were being
conducted at the quarry site.
Mr. Frederick further testified that Mr. Glasford was serving as the respondent's superintendent at the time of his inspection and that he was with him when he observed the violative
conditions. Mr. Frederick confirmed that Mr. Glasford was also
present at the "closeout meeting" following his inspection and
that the violation and lockout procedures were discussed with him
and a representative of Elco Concrete. The conference worksheet
reflects that Mr. Glasford was present on March 29, 1988, as the
representative of the respondent.
Mr. Mumma denied any ownership interest in Elco Concrete
Products Inc. He explained that he has a 14 percent interest in
a holding company known as 11 999 11 , which owns Pennsy Supply
Company, and that Pennsy owns Elco Concrete. Mr. Mumma also
denied that Lebanon Rock and Elco Concrete ever operated as a
single entity at the quarry site, and he further explained that
prior to 1985, the quarry was owned by the Corson Lime Company,
and that his family was not involved in that operation. He
testified that Lebanon Rock Company was established in 1985, and
purchased the property and began mining high calcium limestone,
and that Elco Concrete began mining dolomite at the site during
the spring of 1988 (Tr. 127-128).
Mr. Mumma identified his quarry superintendent as Mr. Gerald
Barnett and the record establishes that the contested citations
were served on Mr. Barnett. Further, Inspector Nawa's accident
report of May 25, 1988, identifies Mr. Barnett as the quarry
superintendent at that time. Mr. Werth confirmed that he knew
Mr. Barnett, but he denied that Mr. Barnett ever supervised him
or instructed him as to his job duties. Mr. Werth further testified that he was hired by Mr. Glasford, and that Mr. Glasford was
his "boss."

1074

Mr. Mumma denied that Mr. Glasford was an employee of
Lebanon Rock, and he characterized him as a "consultant" who
handled sales and administrative matters and who was paid by the
day or hour based on his billings. He stated that Mr. Glasford
may have been associated with Lebanon Rock for 4 or 5 months, but
was not at the site full time. Conceding that Mr. Glasford may
have interviewed Mr. Werth for employment, Mr. Mumma stated that
either he or Mr. Barnett hired Mr. Werth through the payroll
department. He conceded that Mr. Glasford was on the property
when the two citations were issued and that he "must have been
contending (sic) to work there" (Tr. 130).
Mr. Mumma took the position that Mr. Werth deviated from
normal operating procedures by shutting down the belt while the
other two employees were attempting to free the rock which had
lodged in the jaws of the crusher. Mr. Mumma argued that the
respondent provided the proper locks, but that in his attempts to
do "something beneficial for the company," Mr. Werth violated
company policy concerning the normal operating procedures for
shutting down the equipment (Tr. 154).
With regard to the prior violation issued by Inspector
Frederick, Mr. Mumma took the position that the respondent should
not be held accountable for this violation since it was served on
Elco Concrete Products, Inc. Mr. Mumma asserted that
Mr. Glasford was not given a copy of the previously issued violation, was not given any information in this regard, and had
nothing to transmit to the respondent, and that he simply "overheard a verbal conversation" (Tr. 156). Mr. Mumma further
asserted that if the prior violation had been served on the
respondent, he would have received a copy in his office and would
have been informed about the violation and would have had an
opportunity to take appropriate action by immediately reviewing
the plant operational procedures with his employees. Mr. Mumma
suggested that since he had no prior knowledge of the previous
violation, he should not be penalized for any negligence. He
also expressed some doubts as to whether Mr. Werth actually
informed Mr. Rolon and Mr. Deck that he was going to perform work
on the belt which was started up and resulted in his injuries
(Tr. 154-159).
The respondent's reliance on Mr. Werth's alleged negligence
as a defense to the citation is rejected. The petitioner's
position on this issue is correct, and I conclude and find that
the respondent may be held strictly liable and accountable for
the violation regardless of any fault by one of its employees.
Although any negligence by Mr. Werth may be considered in mitigation of any civil penalty assessments for the violations which
have been affirmed in this case, I cannot conclude that the
evidence establishes that Mr. Werth was negligent. His credible
and unrebutted testimony establishes that he received no training

1075

and was not aware of any lockout procedures. The respondent's
suggestion that Mr. Werth may not have notified Mr. Rolon and
Mr. Deck that he was going to work on the belt which was started
up and caused his injuries is likewise rejected. Mr. Rolon and
Mr. Deck were not called to testify in this case and I find
Mr. Werth to be a credible witness and I believe his unrebutted
testimony.
The record in this case establishes that the prior violation
issued by Inspector Frederick was in fact served on Elco Concrete
Products under its own MSHA Mine ID number, and as previously
noted, it is not included in the respondent's history of prior
violations. Under the circumstances, I find some merit in the
respondent's argument that it should not be penalized for the
negligence attributable to Elco. With regard to Mr. Glasford's
knowledge of the prior violation, and the respondent's constructive notice of the violative conditions, since Mr. Glasford was
not called to testify, his managerial role with respect to the
respondent's operation at the time this violation was issued, as
testified to credibly by Inspector Frederick, remains unrebutted.
Although I find Mr. Mumma's testimony concerning Mr. Glasford's
status believable, I am not totally convinced that Mr. Glasford
was not informed about the prior cited conditions. Nor am I
convinced that Mr. Glasford did not occupy a managerial position
with the respondent, and I credit Mr. Werth's testimony that
Mr. Glasford was his boss.
Apart from any knowledge by the respondent with respect to
the prior violation, I conclude and find that the evidence and
testimony presented in this case, taken as a whole, supports a
finding of a high degree of negligence by the respondent for the
citation in question. Althoqgh Mr. Mumma asserted that had he
been informed of the prior violation, he would have taken appropriate steps to review the plant operational procedures with his
employees, he conceded that he had no knowledge of the existence
of any written company safety rules and procedures. Mr. Mumma
did not rebut the fact that Mr. Werth was not trained, and he
acknowledged that he had no knowledge of the existence of any
company training program (Tr. 132). He simply believed that
Mr. Werth had been assigned to Mr. Rolon for training, and that
Mr. Barnett was responsible for overseeing the operation of the
plant. However, Mr. Rolon and Mr. Barnett were not called to
testify, and in the absence of any testimony from these key
employees, Mr. Werth's unrebutted and credible testimony establishes that he was not trained and had no knowledge of any ·lockout procedures.
Mr. Mumma's acknowledgement of the fact that the respondent
provided the locks for use by its employees, establishes a strong
inference that it was aware of the requirements of the cited
standard, and Mr. Mumma conceded that he was aware of these
requirements (Tr. 90).
I believe that it is not unreasonable to

1076

expect the respondent to insure that Mr. Werth was trained, or
otherwise made aware of the existence of the locks, including the
necessity for using them to lock out a belt before he performed
any work.
Further, given the fact that Mr. Werth was working
with Mr. Rolon, an individual who Mr. Mumma stated was supposed
to train Mr. Werth, and who knew that Mr. Werth was working on
the belt, I can only conclude that the respondent failed to take
reasonable steps to adequately supervise Mr. Werth's work, and
that its failure to do so contributed to the accident which
resulted in serious injuries to Mr. Werth. Under all of these
circumstances, I conclude and find that the violation was the
result of a high degree of negligence on the part of the respondent, and the inspector's finding in this regard IS AFFIRMED.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section llO(i) of the
Act, I conclude and find that the following civil penalty assessments are reasonable and appropriate for the violations which
have been affirmed:
Citation No.
2626303
2626304

05/26/88
05/26/88

30 C.F.R. Section

Assessment

56.12016
56.9006

$1,000
$ 800

ORDER
The respondent IS ORDERED to pay the civil penalty assessments for the violations in question, and payment is to be made
to MSHA within thirty {30) days of the date of this decision and
order. Upon receipt of payment, this matter is dismissed.

~~~

Administrative Law Judge

Distribution:
Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 {Certified Mail)
Mr. Robert M. Mumma II, President, Lebanon Rock, Inc., P.O.
Box 1531, Harrisburg, PA 18105 (Certified Mail)
/fb

1077

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

MAY 231990
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF BOBBY COULTER,
Complainant

v.
CANTU MATERIALS, INC.,
Respondent

Docket No.
MD 89-38

CENT 90-1-DM

Sheppard Pit

.
DECISION

Before:

Judge Broderick

By order issued March 23, 1990, I found Respondent in
default for failure to file an answer to the complaint of
discrimination filed by the Secretary on behalf of Bobby Coulter,
and for failure to respond to an order of show cause issued
January 11, 1990.
Because of Respondent's default, I found that it had
violated section 105 ( c) ( .1) of the Act in discharging Bobby
Coulter on or about March 13, 1989, for activity protected under
the Act.
I ordered Respondent to expunge its records of any
references to the discharge of Bobby Coulter, and to pay to the
Secretary a civil penalty in the amount of $600. I further
ordered Respondent to pay Bobby Coulter full back pay and other
benefits from the date of his discharge until the date he resumed
full employment, with interest on the back pay calculated in
accordance with the formula contained in 54 Fed. Reg. 2226
(January 19, 1989), and to pay Complainant the expenses
associated with this litigation.
I directed the Secretary to submit a statement of the amount
claimed as back pay with interest and the amount of litigation
expenses. on May 14, 1990, the Secretary filed a statement of
Amount Claimed, a copy of which was served on Respondent
May 10, 1990. No litigation expenses are claimed. Respondent
has not replied to the Statement. Therefore, I accept the
Secretary's statement of the amount of back pay less interim
earnings from March 13, 1989, until he resumed full employment
April 8, 1989.

1078

ORDER
Therefore, IT IS ORDERED:
l •· The findings and orders issued March 2 3 , 19 9 o, are
AFFIRMED.
2. Respondent shall pay to Complainant within 30 days of
the date of this decision the sum of $912.31 representing lost
wages and interest as follows:
·
Back wages 3/13/89 to 3/20/89
Withheld wages
Wage differential 3/20/89 to
4/7/89
Travel expenses
Interest 3/13/89 to 4/7/89

$280.00
217.00
206.25
205.52
5.54
$912.31

1 fJ.,1-od/vl;J
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James A. Broderick
Administrative Law Judge
Distribution:
Jack F. Ostrander, Counsel for Safety and Health, U.S. Department
of Labor, Office of the Solicitor, 525 S. Griffin Street, Suite
501, Dallas, TX 75202 (Certified Mail)
Cantu Materials, P.O. Box 425, Eagle Lake, TX 77434 (Certified
Mail)
slk

1079

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

MAY 23'1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 89-139
A.C. No. 36-01818-03524

v.
R S & W Drift
RS & W COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

Mark v. Swirsky, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Randy Rothermel, RS & W Coal Company, Inc.,
Klingerstown, Pennsylvania, Pro gg_, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil
penalty filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking a civil penalty assessment in
the amount of $300, for an alleged violation of mandatory training standard 30 C.F.R. § 48.5(a). Respondent filed a timely
answer and contest, and a hearing was held in Reading,
Penpsylvania. The parties waived the filing of posthearing
briefs, and I have considered their oral arguments made on the
record during the course of the hearing in this matter.
Issues
The issues presented in this case are (1) whether the
condition or practice cited by the inspector constitutes a
violation of the cited mandatory safety standard, (2) whether the
violation was "significant and substantial" (S&S), and (3) the
appropriate civil penalty to be assessed for the violation,

1080

taking into account the statutory civil penalty assessment
criteria found in section llO(i) of the Act. Additional issues
raised by the parties are identified and disposed of in the
course of this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977;
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i).

3.

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

Stipulations
The parties stipulated that the respondent is a small coal
mine operator employing eight miners, and that its annual production is 3,300 tons. They also agreed that payment of the proposed civil penalty assessment will not adversely affect the
respondent's ability to continue in business (Tr. 4).
Discussion
The contested section 104(a) S&S Citation No. 2677716,
served on the respondent on November 15, 1988, cites an alleged
violation of mandatory training standard 30 C.F.R. § 48.5(a), and
the cited condition or practice is described as follows:
Darin Schwartz, determined to be a new miner, was
observed working in the skidmore rock tunnel underground portion-of the mine. A discussion with
Mr. Schwartz revealed that he had received little of
the required 40 hours of new miner training.
The company's approved training plan dated
12-18-87 states "32 hours of new miner training will be
given at the Schuylkill County Mine Safety Training
Center and all 40 hours of training will be completed
before new employee is assigned work duties
underground."
This citation is issued in conjunction with
104(g) (1) Order No. 2677715 for violation of 114 of th~
Act.
In conjunction with the citation, the inspector also issued
a section 104(g) (1) "S&S" Order No. 2677715, on November 15,
1988, withdrawing the cited untrained miner from the mine. The
order states as follows:

1081

Darin Schwartz, observed performing laborer duties
in the skidmore rock tunnel in the underground portion
of the ·mine has not received the requisite safety
training as stipulated in section.115 of the Act.
Mr. Schwartz has been determined to be a new miner
hired by this company. 11-15-88, who has received little
or none of the required 40 hours of new miner training.
In the absence of such training, Darin Schwartz,
laborer, is declared to be a hazard to himself and
others and is to be immediately withdrawn from the mine
until he has received the required training.
A citation (No. 2677716) for violation of
30 C.F.R. § 48.5(a), has been issued in conjunction
with this order.
Petitioner's Testimony and Evidence
MSHA Inspector Dennis L. Mvers testified that he inspected
the respondent's mine on November 15, 1988, and was accompanied
by Mr. Randy Rothermel, the foreman. Mr. Rothermel informed him
that miner Walter Wehry was working underground. After proceeding underground to the working section, Mr. Myers found that
miner Darren Schwartz was working with Mr. Wehry loading coal
into a buggy. Mr. Schwartz informed Mr. Myers that this was his
first day on the job underground and that he had worked for
1 week at another contract mine operation. Mr. Schwartz also
informed Mr. Myers that he had received no training (Tr. 13-16).
Mr. Myers stated that he asked Mr. Schwartz if he knew what
a "three piece set" was, and he replied that he did not.
Mr. Myers explained that this was one of the methods of roof
control which may be used at the respondent's mine and that it is
a subject usually covered in the 40-hour training given to new
miners. Mr. Myers confirmed that he also asked Mr. Schwartz
about the mine roof control and ventilation plans, and that he
had no knowledge of the plans (Tr. 17-18).
Mr. Myers stated that Mr. Rothermel was present while he
questioned Mr. Schwartz and stated that he was training
Mr. Schwartz. Mr. Myers then informed Mr. Rothermel that he
could not train Mr. Schwartz because he was not listed as a
trainer or instructor in the respondent's training plan.
Mr. Rothermel informed Mr. Myers that he was a trainer at a
previous mining operation and Mr. Myers informed Mr. Rothermel
that Mr. Schwartz would have to be withdrawn from the mine
because he had not been trained (Tr. 19).
Mr. Myers stated that Mr. Rothermel telephoned MSHA's
district supervisor for education and training, Charles Moore,
from his off ice and inquired as to why he was not listed as an
instructor. Mr. Myers stated that he informed Mr. Moore that

1082

pursuant to the respondent's training plan new miners had to be
trained at the Schuylkill County Vo-Tech facility, and that the
approved training instructor was Mr. Richard Rothermel, Randy's
brother, and the respondent's president and foreman. Mr. Myers
confirmed that Richard Rothermel was listed on the MSHA ID form
which he reviewed, but that Randy Rothermel was not. After
speaking with Mr. Moore, Mr. Myers issued the citation and withdrawal order and served them on Randy Rothermel (Tr. 22).
Mr. Myers stated that he discussed the respondent's training
plan with Mr. Rothermel and advised him to have it updated and
that he could request technical assistance from MSHA. Mr. Myers
stated that he had no knowledge that the respondent had ever
requested prior assistance from MSHA regarding the training plan.
He confirmed that Mr. Schwartz left the property and that when he
next returned to the mine on December 6, 1988, Mr. Schwartz was
not there (Tr. 22).
Mr. Myers confirmed that he cited a violation of section
48.5(a), because he considered Mr. Schwartz to be a new miner,
and he determined through his conversation with Mr. Schwartz and
Mr. Rothermel that Mr. Schwartz was an untrained inexperienced
miner (Tr. 23).
Mr. Myers stated that the violation was significant and
substantial because there was a very good possibility that an
inexperienced miner working underground would be exposed to an
injury to himself and other miners (Tr. 24). Mr. Myers confirmed
that he made a finding of "high negligence" because Mr. Rothermel
had previously served as a training instructor and knew that as a
new employee Mr. Schwartz could not go underground without any
training. Mr. Myers found no mitigating circumstances, and he
believed that the respondent could have made other arrangements
to train Mr. Schwartz and should have contacted MSHA to assist
him before the citation and order were issued (Tr. 24).
Mr. Myers identified a. copy of the respondent's approved
training plan which lists Richard Rothermel as the approved
instructor, and he confirmed that the plan was in effect at the
time the citation and order were issued, and that Randy Rothermel
produced the plan for his review (Tr. 25, exhibit P-10).
Mr. Myers confirmed that he has never seen a 1985 training plan
which was identified as exhibit P-7 (Tr. 26). Mr. Myers confirmed that Mr. Schwartz was withdrawn from the mine because he
had not received 40 hours of new miner training before he was
assigned work duties (Tr. 26).
On cross-examination, Mr. Myers explained why he believed
Mr. Schwartz was exposed to mine hazards while working underground without the benefit of training (Tr. 27-29). Mr. Myers
confirmed that the respondent submitted another· training plan to
MSHA's district office in Wilkes-Barre approximately a week or

1083

2-weeks prior to the hearing in this case, but that he was not
familiar with the specifics of that plan (Tr. 32). Mr. Myers
identified some MSHA training materials produced by
Mr. Rothermel, and Mr. Rothermel pointed out that the information
reflects that on-the-job training "is best" (Tr. 34).
Mr. Myers confirmed that Richard Rothermel was not at the
mine on November 15, 1988, and that Randy Rothermel said nothing
about Richard being involved in any training for Mr. Schwartz.
Mr. Myers stated that Randy Rothermel simply informed him that he
was training Mr. Schwartz "on the job" (Tr. 42). Randy Rothermel
did not indicate that Mr. Wehry was training Mr. Schwartz (Tr.
43) .
Mr. Myers confirmed that assuming that he was qualified to
administer training, Randy Rothermel could administer the training. However, the applicable approved mine training plan only
listed Richard Rothermel as the qualified training instructor
(Tr. 44). Mr. Myers confirmed that he found no MSHA training
form 5023 for Mr. Schwartz, and that this form is required to be
filled out by Vo-tech showing the dates of the training and the
training which was administered and received by the miner (Tr.
4 7) •

Mr. Myers conceded that Mr. Schwartz may have received some
on-the-job training during the time he was underground on the day
of the inspection, but that he was required to have a full
8 hours of training on-the-job and 32 hours of additional training prior to performing any work underground and that this is
specified in the respondent's training plan (Tr. 48-50).
MSHA Supervisory Inspector Dean W. Updegrave confirmed that
he is Inspector Myers' supervisor, and after reviewing the citation and order issued by Mr. Myers, he agreed that they were
properly issued (Tr. 61). Mr. Updegrave stated that approximately 3 days after the citation and order were issued, Randy
Rothermel came to his off ice and informed him that he could train
Mr. Schwartz because he was listed as an approved training
instructor on the mine training plan. Mr. Updegrave stated that
he then reviewed his file and a copy of the training plan with
Mr. Rothermel and informed him that his name did not appear on
the plan as a trainer. Mr. Rothermel then stated "well, it was
on, somebody took it off" (Tr. 62).
Mr. Updegrave stated that he informed Mr. Rothermel that
Mr. Schwartz would have to have 32 hours of classroom training
time and 8 hours "introduction to the work environment" before he
was assigned a job (Tr. 62). Mr. Rothermel then requested that
the training plan be changed. Mr. Updegrave then reviewed the
mine legal identity report and found that Randy Rothermel was not
listed as one of the mine partners, and that only Richard
Rothermel and Mr. Wehry were listed as partners. Randy Rothermel

1084

then informed Mr. Updegrave that he was a partner, and
Mr. Updegrave gave him blank copies of the legal identify form
and advised him to file them in order to have him listed as a
partner. He also advised Mr. Rothermel to request a change in
the training plan if he so desired (Tr. 63).
Mr. Updegrave stated that prior to the inspection by
Mr. Myers, Richard Rothermel visited his office to discuss the
mine training plan. Richard requested that Randy Rothermel's
name be deleted from the plan because he was not a qualified
instructor. Richard Rothermel informed Mr. Updegrave that he did
not have the facilities at the mine to train new employees and
opted to have them trained at the Vo-tech school for the 32 hours
of classroom training. The new plan was accordingly changed and
approved by MSHA, and it listed Richard Rothermel as the approved
trainer, and it provided that 32 hours of training would be
conducted at the Vo-tech school (Tr. 65-66: exhibits P-10, P-8,
and P-9). Mr. Updegrave identified exhibit P-11 as a copy of a
letter dated December 18, 1987, advising the respondent that the
new training plan had been approved (Tr. 68). He also identified
a copy of a letter from Richard Rothermel submitting information
concerning the revision and addendum to his approved training
plan (Tr. 68-70, exhibit P-12). Mr. Updegrave confirmed that
Randy Rothermel was not involved in these modifications and
revisions of the mine training plan (Tr. 71).
Mr. Updegrave confirmed that the respondent filed a new
training plan with MSHA's Pottsville office approximately a week
prior to the hearing and Richard Rothermel informed him that he
did not want Randy Rothermel to be included in the plan as a
training instructor. Mr. Updegrave also confirmed that he has
not received any new mine legal identity forms from Randy
Rothermel (Tr. 71).
Mr. Updegrave confirmed that pursuant to the respondent's
prior 1985 training plan, all of the 40-hour new miner training
could be done at the mine site (Tr. 91).
Respondent's Testimony and Evidence
Darren Schwartz testified that prior to the day of the
inspection by Mr. Myers, he worked at another mine for a week.
He confirmed that the day of the inspection was his first day of
work at the respondent's mine. He stated that he had shoveled
coal underground for 4 hours before the inspector came underground, and that he had shoveled 25 scoops of coal. He confirmed
that Mr. Rothermel pointed out several safety things to him when
he first went underground (Tr. 94-96).
Mr. Schwartz stated after he came to the surface, Mr. Myers
would not permit him to do any surface work until he was trained
at the Vo-tech school. He confirmed that he completed his

1085

surface training on May 25, 1989, and his underground training on
July 28, 1989 (Tr. 100).
Randy Rothermel testified that at.the time of the inspection
he was not aware of the 1987 training plan·and was only familiar
with the one he filled out.in 1985. He stated that the 1985 plan
permitted him to train newly employed miners, and that the pending plan revision would allow him to do this again.
Mr. Rothermel could not explain why he was not aware of the 1987
plan (Tr. 107). He explained that he works one shift and his
brother Richard. works another shift, and that the mine plans are
continuously being changed and that he has "a drawer full of
them" (Tr. 108) •
On cross-examination, Mr. Rothermel stated that the mine was
working two shifts in 1985 and 1987, and that the mail was
received at a company office away from the mine site. He stated
that his brother works the third shift from 10 p.m. to 5:00 a.m.
and comes to the mine 6 days a week, and that he works the first
shift from 7:00 a.m. to 2:00 p.m. (Tr. 111). He stated that he
lives 3 or 4 miles from his brother, and that they spoke to each
other "all the time away from the mine." He stated that his
brother never told him that he had changed the mine legal identity information, and he believed that he did so because a share
of the mine was sold to his brother in 1987 or 1988.
Mr. Rothermel confirmed that he has always owned a share of the
mine (Tr. 112).
Mr. Rothermel confirmed that he took Mr. Schwartz underground, explained some things to him, and that he was in the
company of one of the other mine partners. He did not believe
that Mr. Schwartz was performing any work duties, and that he was
only shoveling coal (Tr. 115-116). He asserted that he intended
to train Mr. Schwartz that day, and that he had been underground
for 4-hours prior to.the inspector's arrival, and if the inspector had not arrived he would have trained Mr. Schwartz for the
remainder of the day (Tr. 119). He conceded that he was not with
M~. Schwartz all of the time, but spent 2 hours with him underground before leaving to conduct other business (Tr. 119-120).
However, he communicated with Mr. Schwartz over the intercom (Tr.
121) .
Mr. Updegrave was recalled and he confirmed that in the
event Vo-tech cannot train a newly employed miner at any given
time, the respondent could have contacted MSHA's district manager
for a waiver to permit him to allow one of MSHA's training specialists to conduct the training. He also indicated that the
Vo-tech facility has an evening training program to allow miners
to timely complete their training (Tr. 123).
Mr. Updegrave confirmed that the Vo-tech training is scheduled when there are 10 or more persons to be trained, but there

1086

are times when only two people are in class. He again confirmed
that Richard Rothermel informed him that he did not have the time
to train miners at the mine and since he wanted to send them to
Vo-tech, he submitted a change for his plan (Tr. 124).
Mr. Updegrave explained the newly submitted training plan by
Richard Rothermel (Tr. 126-130) ~·
Findings and Conclusions
Fact of Violation
The respondent in this case is charged with a violation of
the training requirements found in 30 C.F.R. § 48.5(a), because
of its failure to provide training for newly employed miner
Darren Schwartz, as required by section 48.5(a) and the respondent's approved mine training plan. Section 48.5(a), requires
that each new miner receive no less than 40 hours of training
before he is assigned to any work duties, and approximately
8 hours of this training is required to be given at the mine
site.
Mr. Randy Rothermel agreed that MSHA's training regulations
require a new miner to receive no less than 40 hours of training
before he is assigned to any work duties (Tr. 31). However, he
took the position that MSHA's training materials which were
recently given to him reflect that on-the-job training is the
"best" method for training miners, and that pursuant to his plan,
training may be given "on site" and that it is not necessary that
it be given at the local county Vo-tech facility (Tr. 35).
MSHA's counsel pointed out that pursuant to the respondent's
applicable training plan, Richard Rothermel may administer part
of the new-miner training, and that Vo-tech is an alternative
source for administering the training. He further pointed out
that all training must be administered by a qualified instructor
and that the plan provisions list where the training is to be
administered for each of the subjects covered by the plan (Tr.
36-40). He confirmed that pursuant to the plan, certain portions
of the training may be done at the mine by a qualified instructor
and certain portions may be done at the Vo-tech facility (Tr.
41) .
Mr. Rothermel asserted that he had no knowledge of the
training plan relied on by Mr. Myers prior to the inspection, and
that he was only familiar with the prior 1985 plan which lists
him as an instructor (Tr. 51). Mr. Rothermel and the inspector
confirmed that the applicable plan was found in an envelope in a
desk drawer in the mine office with various other papers, including the mine ventilation and roof-control plans and that "it took
us a little bit to find them" (Tr. 29).

1087

Mr. Rothermel stated that he did not want to train new
miners at the Vo-tech school, and that if the new plan is
approved, miners will be trained at the mine (Tr. 77-78, 89). He
took the position that even though Mr. Schwartz was underground,
"he was shoveling coal and I don't consider that work" (Tr.
79-80). He also took the position that Mr. Schwartz was receiving training at the time he was found underground by Inspector
Myers (Tr. 81). He also expressed concern that the training
administered at the Vo-tech facility is not given at all times,
and that newly employed miners must wait for months before they
are hired in oraer to be trained.
The evidence adduced in this case clearly establishes that
the cited miner in the employ of the respondent at the time of
the inspection in question was a newly employed inexperienced
miner who had not received the requisite training pursuant to the
respondent's MSHA approved training plan. The respondent's
suggestion that the cited miner was not performing any work
underground at the time he was found by the inspector is
rejected. The evidence establishes that the untrained miner was
shoveling and loading coal, and his own testimony attests to the
fact that he had been underground for approximately 4 hours
shoveling and loading coal. Under the circumstances, I conclude
and find that the petitioner has established a violation by a
clear preponderance of all of the credible and probative evidence
in this case, and the contested citation IS AFFIRMED.
I also
conclude and find that the withdrawal of the untrained miner was
proper in the circumstances.
Significant and Substantial Violation
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 its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum the Secretary of Labor must
prove:
(1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is,
a measure of danger to safety-contributed to by the

1088

violation; (3) a reasonable likelihood that the hazard
contribµted to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Inspector Myers' based his "S&S" finding on his belief that
an inexperienced and untrained miner working underground would be
exposed to an injury to himself and to other miners and that
mining is a very hazardous occupation (Tr. 23-24). He explained
that during the time he was underground, Mr. Schwartz would have
been in a confined area with coal cars moving back and forth, and
in the event of a derailment "he could very well get hurt" if he
were struck by one of the cars. Although Mr. Myers indicated
that Mr. Schwartz was "off to the side" of the coal chute while
loading coal, he stated that when he was shoveling and cleaning
up the coal he was directly under the coal chute, and that the
coal buggies moved back and forth while they were being loaded.
In the event one of the chute poles broke loose, the coal could
have rolled out and over the chute board and caught Mr. Schwartz.
Mr. Rothermel contended that he intended to train
Mr. Schwartz underground on the day of the inspection, and
although Mr. Schwartz was underground for 4 hours before he was
found by the inspector, Mr. Rothermel conceded that he was only
with him for 2 hours underground. Mr. Rothermel also indicated
that he "explained some things" to Mr. Schwartz while he was
underground with him, and that Mr. Schwartz was in the company of
one of the mine partners. However, there is no evidence that the
partner was training Mr. Schwartz, nor is there any evidence that

1089

Mr. Schwartz was doing anything other than shoveling and loading
the coal.
Mr. Schwartz confirmed that he was shoveling coal that had
run out over the coal buggy. He confirmed·that Mr. Rothermel
pointed out to him that he should kept "his arms and legs inside"
while going inside the mine, showed him where the escape route
was, and pointed out the mine intercom to him (Tr. 95-96).
Although Mr. Schwartz indicated that he had worked at another
mine operation for a week prior to his first day of employment
with the respondent, there is no evidence or information of
record as to the extent of his work at the other facility, nor is
there any evidence as to whether the hazards presented at previous place of employment were similar or different from those
presented at the respondent's underground mine.
I conclude and find that Inspector Myers' credible and
unrebutted testimony supports a reasonable conclusion that as an
untrained, inexperienced miner, Mr. Schwartz's presence in the
respondent's underground mine without the benefit of the required
training exposed to him a reasonable likelihood of serious
injury. Under the circumstances, I conclude and find that the
inspector's "S&S" finding was reasonable and proper in the circumstances, and IT IS AFFIRMED.
Size of Business and Effect of Civil Penaltv Assessment on the
Respondent's Ability to Continue in Business
The parties stipulated that the respondent is a small mine
operator and that the civil penalty assessment for the violation
will not affect the respondent's ability to continue in business.
I adopt these stipulations as my findings and conclusions with
respect to these issues.
History of Prior Violations
Exhibit P-14, a computer print-out concerning the respondent's history of assessed violations, reflects that the respondent paid $144 in civil penalty assessments for four violations
issued during the period from November 15, 1986 through
November 14, 1988. All of the violations were section 104(a)
citations, and the respondent was not previously cited for any
training violations. I conclude and find that the respondent has
a good compliance record and I have taken this into consideration
in assessing the civil penalty for the violation which has been
affirmed.
Good Faith Compliance
Mr. Schwartz was immediately removed from the mine and left
the property after the citation and order were issued. The
inspector terminated the citation after he returned to the mine

1090

and determined that Mr. Schwartz was no longer employed by the
respondent. Absent any evidence to the contrary, I conclude and
find that the violation was abated in good faith.
Gravity
In view of my "S&S" findings and conclusions, I conclude and
find that the failure by the respondent to train Mr. Schwartz
before putting him to work underground constituted a serious
violation of the cited standard.
Negligence
Inspector Myers based his "high negligence" finding on the
fact that Mr. Randy Rothermel had previously served as a training
instructor and should have known that as a newly employed miner,
Mr. Schwartz could not go underground prior to receiving the
training required by the respondent's approved training plan
which was in effect at the time of the inspection. The inspector
~believed that Mr. Rothermel should have attempted to contact MSHA
for assistance, or made other arrangements to train Mr. Schwartz
prior to the issuance of the citation and order.
Although I am convinced that Mr. Rothermel was aware of the
training requirements, it seems obvious to me from the record in
this that there is a serious lack of communication between the
Rothermel brothers with respect to their own training programs
and plans, as well as their respective authority with regard to
the operation of the mine. MSHA's supervisory Inspector
Updegrave, who was in contact with Richard Rothermel concerning
certain proposed revisions to the training plan, confirmed that
Randy Rothermel was not a party to those discussions. Randy
Rothermel was apparently oblivious to the fact that his brother
had deleted his name as the approved training instructor, and had
not included his name as one of the mine operators in MSHA's mine
identification papers.
Although I find it difficult to believe that Mr. Randy
Rothermel was totally oblivious to the fact that the 1985 mine
training plan had been revised and replaced by a new plan which
was approved in December, 1987, the testimony of Inspector Myers
indicating that the new plan was in an envelope in a desk drawer
in the mine office, and that it took some time to find it, and
Inspector Updegrave's testimony that the MSHA letter informing
the respondent of the new plan was addressed to Richard
Rothermel, and that Randy Rothermel was not involved in the
changes made in the new plan, lends some credence to Randy
Rothermel's plea of ignorance of the new plan. However, given
the fact that both Rothermel brothers apparently have an ownership interest in the mine and are equally accountable for the
violation, I cannot conclude that the respondent may be absolved
from any negligence for the violation.
Further, upon review of

1091

the 1985 and 1987 training plans in question, I find that the
only substantial change is the designation of Richard Rothermel,
rather than Randy Rothermel, as the approved and qualified training instructor. Both plans require 40 hours of training for new
miners with less than 1 year experience during the previous
3 years, and I conclude and find that the respondent knew, or had
reason to know, that Mr. Schwartz had to be completely trained
before he was allowed to work underground.
I reject Randy
Rothermel's belated and self-serving explanation that he was
training Mr. Schwartz on the very day that the inspector found
him underground. Under the circumstances, I conclude and find
that the inspector's "high negligence" finding was not unreasonable, and IT IS AFFIRMED.
Civil Penalty Assessment
on the basis of the foregoing findings and conclusions, and
taking into account the requirements of section llO(i) of the
Act, I conclude and find that the petitioner's proposed civil
penalty assessment of $300 for the violation which has been
affirmed is reasonable and appropriate, and IT IS AFFIRMED.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
in the amount of $300 for the violation in question.
Payment
shall be made to MSHA within thirty (30) days of the date of this
decision and order, and upon receipt of payment, this matter is
dismissed.

'~-~~

Administrative Law Judge

Distribution:
Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Mr. Randy Rothermel, RS & W Coal Company, Inc., R.D. #1, Box 36,
Klingerstown, PA 17941 (Certified Mail)
/fb

1092

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

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-184-M
A.C. No. 05-04311-05501

.

v.
WALSENBURG SAND
COMPANY,

&

MAY 2 31990

Ross Pit

G.RAVEL

Docket No. WEST 88-214-M
A.C. No. 05-03920-05504

Respondent
Vezzani Pit
DECISION
Appearances:

Margaret A. Miller, Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
For Petitioner;
Ernest u. Sandoval, Esq., Walsenburg, Colorado,
For Respondent.

Before:

Judge Cetti

These cases are before me upon the petition for civil
penalties filed by the Secretary of Labor pursuant to Section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. Section 801 et seg., the "Act," charging Walsenburg
Sand & Gravel Company (Walsenburg) with a violation of 13 safety
standards found in Title 30 of the Code of Federal Regulations, ·
Part 56, for surface metal and non-metal mines.
Walsenburg filed a timely answer to the Secretary's proposal
for penalty.
After notice to the parties the matter came on for
hearing before me at Pueblo, Colorado. Oral and documentary evidence was introduced, post-hearing briefs filed, and the matter
was submitted for decision.
The general issues before me are whether Walsenburg violated the cited regulatory standards, whether or not certain
alleged violations were significant and substantial as alleged,
and if violations are found, what is the appropriate civil
·
penalty to be assessed in accordance with Section llO(i) of
the Act.
Walsenburg, at all relevant times herein, owned or leased
and operated three sand and gravel pits in the general vicinity
of Walsenburg, Colorado. Two of the pits, the Ross Pit and
Vezzani Pit, were inspected by Federal Mine Inspector Lyle K.
Marti. The inspector issued two citations for alleged violations
of regulatory standards at the Ross Pit and 11 citations for
alleged violations of regulatory standards at the Vezzani Pit.

1093

Docket No. WEST 88-214-M
Background Information
Lyle K. Marti, a federal mine inspector, in his inspection
of the Vezzani pit, was accompanied by Gary M. Vezzani, VicePresident of Walsenburg. The Vezzani Pit is a small intermittent
seasonal operation. Raw material is extracted from the earth and
processed.
At the pit there is a crusher with screening facilities, a maintenance shop, and a hot plant. The pit is in operation from time to time when the operator has need for the products processed there.
On the day of the inspection the plant and
crusher were not operating and only one employee was at the site.
As a result of the inspection, Inspector Marti issued 11
citations. Four of the citations involved guards for moving
machine parts. Three of the guard-related citations involve
alleged violations of 30 C.F.R. § 56.14001 for failure to properly guard exposed moving machine parts which may be contacted by
persons and which may cause injury to persons. The other guardrelated citation was for the alleged violation of 30 C.F.R.
§ 56.14006 which requires guards to be securely in place while
machinery is being operated. The other seven citations involve
alleged violations of electrical equipment standards.
Stipulation
The parties stipulated that each of the 11 citations accurately describes what Inspector Marti observed during his
inspection of the Vezzani Pit.
(Consequently, I quote from
each citation the condition or practice observed by Inspector
Marti.)
Citation No. 3065798
This citation alleges a 104Ca) S&S violation of 30 C.F.R.
56.14001. The citation describes the condition observed by
Inspector Marti as follows:

§

The chain and gear sprocket to the tail
pulley on the feeder belt conveyor of the
Cedar Rapids Crusher was not guarded against
personal contact.

1094

Inspector Marti testified that the chain and gear sprocket
could easily_ be contacted by persons doing cleaning or maintenance work in the area. Such a contact could result in the
loss of a finger, an arm, or a hand.
Mr. Marti testifed that he could tell from the shininess
of the teeth of the sprocket, which is created by movement of
the chain, that the machinery had been operated during the week
or two before the inspection. Gary Vezzani would not tell him
when the machinery was last operated.
Inspector Marti discussed this violation with Gary Vezzani
who told him, "We don't have men in that area when this machinery
is in operation."
Citation No. 3065799
This citation alleges a 104(a) S&S violation of 30 C.F.R.
The condition observed by Inspector Marti is stated
in the citation as follows:

§ 56.14001.

The drive shaft and its couplings to the
roller drum on the Cedar Rapids Crusher,
SN 100861, was not guarded against personal
contact that would cause injury to the person.
The cited standard, 30 C.F.R. § 56.14001 provides as
follows:
Gears; sprockets; chains; drive, head, tail,
and takeup pulleys; flywheels; couplings;
shafts; sawblades; fan inlets; and similar
exposed moving machine parts which may be
contacted by persons and which may cause injury to persons, shall be guarded.
Inspector Marti stated that the revolving drive shaft had
couplers and keyways that could catch your clothing and wrap you
into it, or you. could fall against it. A person making contact
could sustain serious bodily injury.
Inspector Marti testified that the rotating drum had a
smoothness which reflected a shine that indicated the crusher
had operated within the past 48 hours. In addition, he also
noticed that along the wheels, along the rims, and on the frame
of the crusher, there was a build-up of some very light material.

1095

Citation No. 3065884
This citation charges a Section 104(a) S&S violation of
30 C.F.R. § 56.14001. The stipulation of the parties established
that Inspector Marti observed the following condition during his
inspection which he described in the citation as follows:
The tail pulley on the Plains Radial Stacker
Conveyor with equipment # 72-8430 was not guard
[sic] to prevent contact that could cause a
serious injury to the person.
Inspector Marti testified that there was no guard to prevent
a person reaching in between the roller and the self-cleaning
tail pulley and making contact with the pinch point. A guard
should have extended below the frame and extended forward so an
employee could not reach in behind and get caught in the pinch
points. If one got caught in the pinch point, it could cause
serious bodily harm or death. The height of the top of the belt
around the tail pulley is approximately 48 inches above the
ground and the bottom of the belt approximately 30 inches above
the ground. The sheen on the bars of the tail pulley indicated
that it had been operated recently. If it had not been operated
recently, it would have had a dull-looking finish rather than a
sheen.
Citation No. 3065800
This citation charges a Section 104(a) S&S violation of
30 C.F.R. § 56.14006 as follows:
The guard for the chain drive and gear
sprockets of the tail pulley on the Peerless
belt conveyor, SN: 2566 was not kept in place.
30 C.F.R. § 56.14006 provides as follows:
Except when testing the machinery, guards
shall be securely in place while machinery is
being operated.
Mr. Marti testified that the guard was not in place. The
guard was lying beside the frame of the belt conveyor exposing
the idle pulley, drive pulley, and the pulley chain of this
conveyor. This machinery was not being tested while the inspector was at the site.

1096

The guard was partially buried by loose material that
came off the conveyor indicating to the inspector that the
machinery had been operated the previous day. There were no
tracks in and around the area showing where anyone had made
adjustments or had been testing. There was in fact nothing to
test in the area. The inspector would expect an employee to
be near or around the sprocket and pulley since the area must
be kept "cleaned out" in order for the tail pulley and the belt
to operate properly. It is quite common not to shut a plant
down just to clean up around the tail pulley.
Inspector Marti
testified it is also common for maintenance people to go ahead
and grease the bearing while the machinery is being operated.
This is why all moving machinery parts that a person can contact
must be guarded.
Electrical Citations
The seven remaining citations charge violations of a number
of regulatory standards involving electrical equipment. The
parties stipulated that each of these seven citations accurately
describes the condition observed by Inspector Marti during his
inspection of the vezzani Pit.
Citation No. 3065795
This citation alleges a Section 104Ca) non-S&S violation of
30 C.F.R. § 56.12005, as follows:
The electrical power cable (Triangle PWC
Inc. #814 Type SO) to the motor on the radial
stacker belt conveyor (Plains equipment number 72-8430) was installed across the top of
the roadway whereby vehicles running over it
could cause possible internal damage to its
conductor. The power cable was not bridged
nor protected by other means.
The cited safety standard, § 56.12005, provides as follows:
Mobile equipment shall not run over power
conductors, nor shall loads be dragged over
power conductors, unless the conductors are
properly bridged or protected.

1097

Inspector Marti testified that the power cable was lying
across the roadway next to the crusher. The power cable ran
from the control panel to the radial stacker. The power cable
was not bridged nor protected. This cable was a power conductor
with four cables inside of it. Three of the conductors are hot
and one is a ground conductor.
It was obvious from the mobile
equipment tracks he observed that mobile equipment was running
over this cable. It appeared to the inspector that the roadway
was used every day that the crusher was operating. The power
conductor went from the distribution panel over to the radial
stacker belt conveyor, a distance of approximately one hundred
feet.
Citation No. 3065881
This citation alleges a Section 104(a} S&S violation of
30 C.F.R. § 56.12025 which reads as follows:
The electric motor, (3-phase, 440 VAC,
7! HP) mounted on the frame of Pearless
belt conveyor SN: 2566, was not framegrounded with a continuous ground conductor
to its source of power.
30 C.F.R. § 56.12025 provides as follows:
All metal enclosing or encasing electrical circuits shall be grounded or provided
with equivalent protection. This requirement does not apply to battery-operated
equipment.
Inspector Marti testified that the electrical three~phase
motor mounted on the frame of the Peerless belt conveyor was not
grounded with a continuous ground conductor to its power source.
There was no ground conductor whatsoever attached to the motor.
Should a fault occur, the frame of this motor would become energized. If someone came in contact with this equipment, one
would receive a shock which could be serious and even fatal.
The motor was wired for 440 volts. It was a 7! HP motor that
would take 9.2 to 11 amps at normal operation. The equipment
is outdoors so that on some days it would be dry and on some
days it would be wet. When the ground is wet or damp you could
receive a "higher degree" of shock.

1098

Citation No. 3065882
This citation alleges a Section 104(a) S&S violation of
30 C.F.R. § 56.12030 as follows:
The power cable (4/8 type SU) male plug on
the end next to the Peerless belt conveyor
had a bare conductor exposed at the male plug
clamp fitting.
The cited safety standard provides as follows:
When a potentially dangerous condition is
found it shall be corrected before equipment
or wiring is energized.
Inspector Marti testified that he observed a bare phase
conductor on the power cables's male plug on the end next to
the Peerless belt conveyor. He stated that this is a potentially dangerous condition since a person coming in contact with
the bare conductor could receive a serious shock. Normally,
you would not expect to see the conductor at all if it was installed properly. The wiring on the machinery is a three-phase
system that involves 440 volts. The length of the bare exposed
area was less than a quarter of an inch.
(See photo Ex. 13).
Inspector Marti said that the violation was visible to anyone
working in that area. However, the small length of the bare
segment Ct inch) will be taken into consideration in my evaluation of the gravity of the violation and the penalty to be
assessed.
Citation No. 3065883
This citation alleges a Section 104(a) S&S violation of
30 C.F.R. § 56.12008 and reads as follows:
The power cable leading out the bottom
of the 30 amp, 3-phase safety disconnect
box mounted on the generator control panel
was not provided with a fitting to prevent
strain on the conductor termination and
the conductor installation from possible
[sic] be cut on the metal edge causing an
electrical shock hazard.
The cited safety standard, 30 C.F.R. § 56.12008, provides
as follows:

1099

Power wires and cables shall be insulated
ad.equately where they pass into or out of
electrical compartments. Cables shall enter
metal frames of motors, splice boxes, and
electrical compartments only through proper
fittings. When insulated wires, other than
cables, pass through metal frames, the holes
shall be substantially bushed with insulated
bushings.
Inspector Marti testified that the citation accurately
describes what he observed. A fitting should have been installed in the opening in the center of the box. The purpose
of the fitting is to secure and protect the phase conductors
from hitting against the metal sides of the opening. The fitting prevents the metal from cutting the insulation and creating
an electrical hazard. If the insulation were cut, it would cause
a fault creating the hazard of an electrical shock. It would
energize not only the box but the entire frame and everything
hooked to it.
Citation No. 3065885
This citation alleges a Section 104(a) S&S violation of
30 C.F.R. § 56.12013 and reads as follows:
The electrical power cable (leading to the
electric motor mounted on the frame of Peerless belt conveyor and with SN: 2566) was not
spliced properly. It was not made mechanically
strong, insulated to that of the original, nor
was it provided with damage protection on the
outer jacket of the original cable.
The cited safety standard, 30 C.F.R. § 56.12013 provides as
follows:
Permanent splices and repairs made in power
cables, including the ground conductor where
provided, shall be:
(a) Mechanically strong with electrical conductivity as near as possible to that of the
original;
Cb)
Insulated to a degree at least equal to
that of the origina~, and sealed to exclude
moisture; and

1100

(c) Provided-with damage protection as near
as. possible to that of the original, including
good bonding to the outer jacket.
Inspector Marti testified that the citation accurately
describes the condition he observed. The individual conductor
had just one or two wraps of electrical tape over the individual
conductors. There were 3-phase conductors and one ground conductor. The splice allowed moisture to seep in and did not provide the same damage protection or mechanical strength as near
as possible to that of the original. If someone stepped on the
splice, he could receive a serious shock that could be fatal
depending on the amount of voltage and the condition of the
ground at the time.
Citation No. 3065886
This citation charges a Section 104(a) non-S&S violation of
30 C.F.R. § 56.12028, and reads as follows:
A record of continuity and resistance of
the plant electrical grounding syst·em was
not available for review.
The cited safety standard, 30 C.F.R.
follows:

§

56.12028 provides as

Continuity and resistance of grounding
systems shall be tested immediately after
installation, repair, and modificationi
and annually thereafter. A record of the
resistance measured during the most recent
tests shall be made available on a request
by the Secretary or his duly authorized
representative.
Inspector Marti testified that he asked Gary Vezzani,
who accompanied him on his inspection, for the record of the
resistance measured during the most recent testing of the continuity and resistance of the grounding system. Mr. vezzani
told him a record of the electrical ground check was not
available.

1101

Citation No. 3065887
This citation charges Walsenburg with a Section 104(a)
non-S&S violation of 30 C.F.R. § 56.12018; and reads as follows:
The safety fuse disconnect boxes on the
generator set control panel board were not
labeled to show which unit they control.
The cited safety standard, 30 C.F.R. § 56.12018, provides as
follows:
Principal power switches shall be labeled
to show which units they control, unless identification can be made readily by location.
Inspector Marti testified that the labeling on the disconnect power switches to motor control and other crushing
facilities were not labeled to show which unit they controlled.
Identification could not be made readily by location.
Walsenburg's case
Other than the federal Mine Inspector Lyle K. Marti, the
only witness to testify at the hearing was Louis Vezzani, owner
and operator of Walsenburg, and the Vezzani Pit. Walsenburg's
primary defense to all the violations at the Vezzani Pit was as
follows:
1.

On the day of inspection the plant was not operating.

2. The plant was last in operation approximately two weeks
before Mr. Marti's inspection.
3. Even though the cited equipment may have been hooked up
(the generator with its panel box, the Peerless conveyor, and the
Plains conveyor), it had never been in operation at the pit.
Mr. Vezzani, when asked who hooked the equipment up from
the generator to the motors of the conveyors, responded in the
following manner:
A.

I don't have any idea. Probably one of the
men. One of the crusher men.
I don't know.
I'm not even sure they were hooked up.

Q.

Well, Mr. Marti testified that they were
hooked up. Do you disagree with that?

A.

I can't disagree with that.
that.

1102

I don't know

Q.

So, if they were hooked--wouldn't it make
. sense that they were hooked up from the generator to the motor because they would want
to be used?

A.

Yes, if they hooked them up, I'm sure that.' s
the reason for it. They might have just
hooked them up to see if the motors would
run on them.
I don't know.
I wasn't there
when they did that.
If anybody did that.

Q.

They have to operate the motors to see if
they run, is that correct?

A.

Yes.

The electric motors, yes.

Mr. Vezzani testified that he closed the Vezzani Pit approximately two weeks before Mr. Marti's inspection. The Secretary
points ou: that 30 C.F.R. § 56.1000 requires an operator to notify MSHA of the commencement of operations as well as temporary
or permanent closures. The operator must also indicate whether
the operation will be continuous or intermittent. Walsenburg's
legal identity report indicated that at the time of the inspection the vezzani pit was an open mine operated on an intermittent
basis. There was no closure on file with MSHA.
On the date of
inspection the pit was an open mine, subject to inspection. The
fact that the machinery at the vezzani Pit was not actually in
operation on the day of inspection is legally irrelevant.
It appears from the record that Mr. Marti is an experienced
and well-qualified federal mine inspector.
Based upon his observation of the appearance and condition of the machinery and the
surrounding area at the time of his inspection, he was of the
opinion that the plant had been in operation a short time prior
to his inspection, and that while it was in operation it was in
the same violative condition that he observed at the time of his
inspection and noted in the citations and testimony.
I credit the testimony of Inspector Marti and, on the basis
of the stipulation of the parties and testimony of Inspector
Marti, I find there was a violation of the regulatory standard
specified in each of the citations issued for violation at the
vezzani Pit.
The Ross Pit
The Ross Pit is a sand and gravel pit that was leased by
Walsenburg to provide the gravel Walsenburg needed for a highway
project. Walsenburg subcontracted with the Southway Construction
Company of Alamosa to bring one of its portable crushers to the
Ross Pit and crush the aggregate at the pit. On January 26,

1103

1988, Mr. Marti, a federal mine inspector, made an inspection of
the Ross Pit. As a result of that inspection he issued two
citations to Walsenburg.
Citation No. 3065898
This citation charges Walsenburg with a Section 104(a) nonS&S violation of 30 C.F.R. § 56.1000. The citation reads as
follows:
The Operator (Walsenburg Sand & Gravel) started
mining operations at the Ross Pit during the week
of Jan. 25, 1988. This mine site is located in
Pueblo county, State of Colorado. The operator
failed to give notification of commencement of
operation to Rocky Mountain District Manager of
Mine Safety and Health Administration.
The cited regulatory standard, 30 C.F.R.
as follows:

§

56.1000 provides

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 tpe_mine name, location, the company name, mailing address, person
in charge, and whether the operations will be continuous or intermittent.
When any mine is closed, the person in charge
shall notify the nearest subdistrict off ice as
provided above and indicate whether the closure
is temporary or permanent.
Inspector Marti testified that on January 18, 1988, he
received notification from Southway Construction Company CSouthway) of their intention to move a portable gravel crusher into
the Ross Pit and begin crushing operations. Inspector Marti
could find no computer listing of the legal identity of the Ross
Pit. Consequently, he went to the pit to make an inspection. At
the pit he talked to Darrell Yohn, the foreman for Southway, who
told him that they had a contract with Walsenburg to crush
130,000 tons of material at the pit. Southway has portable
crushers with a portable identification number. Inspector Marti
talked to Louis vezzani, the .President of Walsenburg, during his
inspection of the Ross Pit and informed him that he was in vio-.

1104

lation of 30 C.F.R. § 56.1000 for his failure to fill out a legal
identity report and notify the MSHA District management of commencement of· operation at the Ross Pit. Mr. vezzani opened his
briefcase and gave the inspector the needed legal identification
report and notification. The legal identity report was dated
January 23, 1989. Since the report was given to MSHA after
operations had begun, there was a violation of 30 C.F.R.
§ 56.1000.
The minimum penalty of $20 was appropriately assessed
for this violation.
Mr. Marti testified that during his January 26, 1988, inspection of the Ross Pit, he observed an Allis-Chalmer dozer
owned and operated by Walsenburg. He talked to the dozer
operator Carl Pfaffenhauser, who informed him that he was
employed by Walsenburg and that Mr. vazzani would soon be
arriving at the Ross Pit.
Mr. Darrell Yohn, the foreman for Southway, informed the
inspector that Walsenburg had leased the 20 acres that included
the Ross Pit. At the time of his inspection, the subcontractor
Southway was operating their portable crusher at that pit.
There were two other employees there who informed him they were
employed by Walsenburg. They were working with the Allis-Chalmer
dozer. They were stripping - taking off and pushing aside the
overburden material from the material that was to be crushed.
Mr. Yohn told Mr. Marti that they started working at the pit
during the week of January 18. Mr. Marti testified that the
legal identity report which was handed to him by Mr. Louis
Vizzani during his January 26, 1988, inspection of the Ross Pit
showed that Walsenburg was the operator of the Ross Pit.
Citation No. 3065900
This citation charges Walsenburg with a 104Ca) S&S violation of 30 C.F.R. § 56.9022. The citation reads as follows:
The outer bank of the elevated roadway into
the Ross Pit was not provided with a berm or
guard. For approximately 175 feet the outer
edge of the roadway drop-off 3-18 feet approximately. The hazard is increased by it being
only 8-11 feet wide and also the weather condition.
The cited regulatory standard, 30 C.F.R. § 56.9022, provides
as follows:
Berms or guards shall be provided on the outer
bank of elevated roadways.

1105

Inspector Marti testified the only access to the pit was
a narrow dirt road approximately 180 feet long that leads up to
the crusher and the excavation site of the Ross Pit. The road's
elevated incline to the top was approximately 150 to 160 feet
long.
In order to maneuver on this narrow road, the inspector
used a four-wheel drive. He talked to Darrell Yohn, foreman- ~or
Southway Construction Company, who told him that it was the only
available road for employees to get in and out of the work site
at the Ross Pit. It was also used as a haul road to bring in
water and fuel.
Foreman Yohn told him that under Southway's contract with
Walsenburg, it was Walsenburg's responsibility to see that the
road was bermed. Mr. Yohn told Inspector Marti him that the day
before the inspector arrived at the Ross Pit, Walsenburg almost
lost the flatbed and the dozer tractor it was hauling over the
edge of the elevated road. Southway had to hook on to the flatbed with their front-end loader to assist in pulling the equipment up the grade. Inspector Marti stated that he examined the
area and saw tire tracks in the mud that indicated that the
vehicle had gone off the edge of the road.
There were no berms
or guardrails installed on the road. MSHA normally requires that
the berm be placed to the axle-height of the largest vehicle that
is being used on the mining property. The natural repose dropoff of the elevated road varied in height up to approximately
18 feet.
If a vehicle went off the road it could roll over and
drop 18 feet.
Inspector Marti testified that since the roadway was used
by Southway as well as Walsenburg he informed foreman Yohn that
if the citation were not abated by construction of the berm, the
citation would be replaced by an order which would close the road
and no one could go in or out of the Ross Pit.
The inspector testified that he served the citation on
Mr. Vezzani and explained to him the date by which the violation
had to be abated. There was a timely abatement of the violation
by Southway.
Mr. Marti testified that the violation was significant and
substantial in nature. He explained that the hazard created by
lack of a berm on the road is that it would allow a vehicle that
got too close to the edge, to go over. He stated that if a
vehicle dropped off the elevated portion of the road "there was
a high degree of bodily injury all the way from a permanent
injury to a fatality." In the inspector's opinion there was a
reasonable likelihood of an accident.

1106

The inspector testified that this was the only road used
during the two days he was at the Ross Pit making the inspection.
He observed one of Walsenburg's maintenance vehicles come to the
pit when they had a problem with the dozer.
Louis Vezzani, President of Walsenburg, testified that in
October 1987 he entered into a contract with the State Highway
Department for a highway job near Pueblo.
In order to do the
job Walsenburg needed a rock pit that could supply the needed
gravel-. Walsenburg subleased the Ross Pit in October 1987 and
proceeded to apply to the Mine Land Reclamation Board for a
permit to mine gravel at the Ross Pit. Mr. vezzani testified
that the permit was issued to him on January 25, 1988.
Walsenburg subcontracted the crushing of the gravel at the
Ross Pit to Southway Construction Company of Alamosa.
Mr. Vezzani testified that he does not know when Southway
moved its equipment into the Ross Pit.· He did not know whether
Southway built any roads at the Ross Pit.
Mr. vezzani testified that he had nothing to do with the
elevated road that was cited. At the time of the inspection
they already had a 36-foot wide road at the west end of the pit
that they were going to use to haul gravel out. He admitted
that some of the employees on his crew may have driven up the
cited road.
He himself drove up the elevated road several times
in Walsenburg's company pickup and looked at the pit. He had no
employees working at the Ross Pit at the time of the inspection.
He owned several Allis-Chalmers dozers but did not have a dozer
at the pit. When Mr. Vezzani was asked if the person on the
grader at the Ross Pit was telling Inspector Marti the truth when
he said he worked for Walsenburg, Mr. vezzani replied, "I don't
have any way of knowing that.
I don't know." Asked if Foreman
Yohn was being honest when he told the inspector that Southway
was not responsible for the overburden or the dozer, Mr. Vezzani
replied, "I can't answer it. Mr. Yohn will have to answer that.
I'm sorry."
Mr. Vezzani testified that he always drove to the Ross Pit
in his company pickup. He drove there at least once every day,
sometimes using the cited elevated road.
However, Walsenburg
did not haul any material out of the pit until three months after
the inspection. Walsenburg's answer, filed October 27, 1988,
states, "Our haul road is 30 feet wide on the west end of the pit
built in time for haulage purposes."
(Emphasis supplied).

1107

Mr. vezzani testified that when Walsenburg got its permit
from the Mine Land Reclamation to start operations at the Ross
Pit on Janu·ary 25, 1988, Southway had already moved in with its
mobile crusher and had been crushing for several days.
On cross-examination, Mr. Vezzani testified that he had an
employee by the name of Carl Pfaffenhauser. He was Vezzani's
blade operator on the highway project, which commenced in October
of 1987. Asked if he had loaned any of his employees to Southway
to work at the Ross Pit, Mr. Vezzani replied, "To my knowledge,
no." Mr. Vezzani went on to explain that some time in late
February or early March of 1988, he "laid some of his employees
off for a three-week period and they could have worked for
Southway during that time."
Inspector Marti was recalled and testified that at the time
of his inspection the cited elevated roadway was the only road
into the Ross Pit. However, when he returned to terminate the
citation a month later, he observed that after the inspection
another road had been constructed along the west side of the pit.
Discussion
Inspector Marti is an experienced, well-qualified inspector.
I credit his testimony. Some of the evidence he presented was
hearsay, but it was, in my opinion, reliable hearsay. Based upon
the testimony of Inspector Marti, I find that Walsenburg violated
the provisions of 30 C.F.R. § 56.9022 as alleged in the citation
issued.
Even assuming arguendo, that Walsenburg made very little
use of the cited elevated roadway, the citation was properly
issued to Walsenburg. The language employed by Congress in
drafting the Mine Act, the legislative history of the Act, and
several court of appeals decisions show that the Secretary can
cite the operator, the independent contractor, or both, for
violations committed by the independent contractor. Mine operators are "absolutely liable for violations by independent contractors." Harman Mining Co. v. FMSHA, 671 F.2d 794 (4th Cir.
1981).
The prime question for consideration in determining a violation of the Mine Act is whether the alleged condition existed
at the mine. The Fifth Circuit has held that "if the Act or
its regulations are violated, it is irrelevant whose act precipitated the violation 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).

1108

The legislative history of the Mine Act confirms that Congress clearly intended the Secretary to have broad discretion to
cite either owners or independent contractors or both for violations involving independent contractors~
In the Senate report
on the bill that ultimately became the Mine Act, the Committee on
Human Resources stated the following:
In enforcing this Act, the Secretary should
be able to issue citations, notices, and orders,
and the Commission should be able to assess
civil penalties against such independent contractors as well as against the owner, operator,
or lessee of the mine. The Committee notes
that this concept has been approved by the
federal circuit court in Bituminous Coal Operators' Ass'n. v. Secretary of the Interior, 547
F.2d 240 CC.A. 4, 1987).
(S. Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977).) Thus,
Congress intended to enable, but not to require, enforcement
against independent contractors. Further, this language makes
clear that the Secretary is authorized to cite owner-operators
for their independent contractors' violations. The passage also
expressly endorses Bituminous Coal Operators' Ass'n (BCOA) v~
Secretary of Interior, 547 F.2d 240 (4th Cir. 1977), holding
that under the Coal Act, the Mine Act's predecessor statute, the
Secretary could cite owners, contractors, or both for the
contractors' violation.
The second significant passage from the legislative history
appears in the Conference Committee Report on the Mine Act.
That report contains the following explanation:
The Senate bill modified the definition of
"operator" to include independent contractors
performing services or construction at a mine.
This was intended to permit enforcement of the
Act against such independent contractors and
to permit the assessment of penalties, the
issuance of withdrawal orders, and the imposition of civil and criminal sanctions against
such contractors who may have a continuing
presence at the mine.
[Emphasis added.]
(S. Conf. Rep. No. 95-461, 95th Cong., 1st Sess. 37 (1977).)
Again this language shows a congressional intention only to
permit enforcement against independent contractors not require
it.

1109

A number of court of appeals decisions have uniformly
construed the Mine Act as granting the Secretary broad discretionary authority. The Third Circuit considered the Mine
Act's legislative history, as well as the BCOA decision, in
determining whether under the Mine Act the Secretary has discretion to hold owners responsible for certain independent
contractors' activities.
In National Industrial Sand Ass'n.
v. Marshall, 601 F.2d 689 (1979), a group of operators challenged a regulation requiring them to provide training in mine
safety and health to the employees of some of their independent
contractors. The owner-operators argued that, because the Mine
Act's definition of "operator" includes independent contractors,
the Secretary must enforce the regulation against independent
contractors, rather than owners, where the contractors control
the job being performed. The court held that the inclusion of
both owners and independent contractors in the definition endowed the Secretary with discretion to assign responsibility to
either. 601 F.2d at 703.
In reaching this conclusion, the court
referred with approval to the reasoning of the BCOA decision
that the Coal Act's definition of operator gave the Secretary
discretion to enforce the Act against owners or contractors for
the contractors' violations.
601 F.2d at 702. The court also
examined the legislative history accompanying the Mine Act and
concluded that, when Congress amended the definition of
"operator" to include independent contractors, "Congress was
clearly concerned with the permissive scope of the Secretary's
authority, not with the mandatory imposition of statutory duties
on independent contractors." 601 F.2d at 703.
In Harman Mining Co. v. FMSHRC, supra, Harman, an owneroperator, challenged a withdrawal order issued to it for an
incident involving Norfolk and Western Railroad, its independent
contractor. The Fourth Circuit rejected Harman's argument that
the Secretary should have cited the independent contractor,
reasoning:
"Even assuming, however, that Norfolk and Western
had some degree of culpability, the Secretary had discretionary
authority to cite Harman for the violation." 671 F.2d at 797.
The court ruled that under both the Coal Act and the Mine Act
"mine owners are absolutely liable for the violations by independent contractors, 11 and cited with approval the reasoning of
BCOA on joint and several liability. In addition, the court
decided that the Secretary had exercised his discretionary .
authority in an "appropriate manner" in issuing the citation
against Harman.
Similarly, in Cyprus Industrial Minerals Co. v. FMSHRC,
664 F.2d 1116 (9th Cir. 1981), the Ninth Circuit rejected an

1110

operator's claim that the employment of an independent contractor removed the operator from lia~ility under the Mine Act.
The court noted that the addition of the term "independent
contractors" to section 3Cd) of the Mine Act did not require
the Secretary to cite only the independent contractori rather,
the addition permitted the Secretary to cite the independent
contractor, the operator, or both.
664 F.2d at 1119. The court
concluded that the Secretary "did not abuse his discretion"
by citing the owner-operator.
664 F.2d at 1120.
Thus, the language employed by Congress in drafting the
Mine Act, th~ legislative history of the Act, and several court
of appeals decisions show that the Secretary can cite the owneroperator, the independent contractor, or both, for violations
committed by the independent contractor. The decision as to
whom to cite is of a discretionary nature.
In this case the
Secretary exercised her discretion and acted within the scope
of that discretion by citing the Walsenburg, even if we assume
arguendo that the cited elevated road at the Ross Pit was used
primarily by Southway and very little by Walsenburg.
Significant and Substantial
A violation is properly designated "significant and substantial" if, based on the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to by the violation will result in an injury or illness
of a reasonably serious nature. Cement Division, National Gypsum
Co., 3 FMSHRC 822, 815 (April 1981). In Mathis 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:
Cl) the underlying violation of a mandatory safety standardi (2) a discrete safety hazard--that is, a measure of
danger to safety--contributed to by the violationi (3) a
reasonable likelihood that the hazard contributed to will
result in an injuryi and (4) a reasonable likelihood that
the injury in question will be of a reasonable serious
nature.
·
Accord, Austin Power v. Secretary of Labor, 861 F.2d 99, 103
CSth Cir. 1988).
The third element of the Mathies formula requires "that the
Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury,"
and that the likelihood of injury must be evaluated in terms

1111

of continued normal mining operations. U.S. Steel Mining Co.,
6 FMSHRC 1573, 1574 (July 1984). See also Monterey Coal Co.,
7 FMSHRC 996, 1001-02 (July 1985). The operative time frame for
determining if a reasonable likelihood of injury exists includes both the time that a violative conditon existed prior to
the citation and the time that it would have existed if normal
mining operations had continued. Halfway, Inc., 8 FMSHRC 8, 12
(January 1986): U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
(August 1985). The question of whether any particular violation
is significant and substantial must be based on the particular
facts surrounding the violation, including the nature of the
mine involved. Texasgulf, Inc., 10 FMSHRC 498, 500-01 (April
1988>: Youghiogheny & Ohio Coal Company, 9 FMSHRC 1007, 2011-12
(December 1987). Finally, the Commission has emphasized that it
is the contribution of a violation to the cause and effect of a
hazard that must be significant and substantial. U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (August 1984).
Under this precedent and based upon my independent review
and evaluation of all the evidence, including the photographs
that are in evidence and the physical location of each hazard,
I find the evidence presented is insufficient to establish that
any of Walsenburg's violations were significant and substantial
in nature.
In particular, with regard to the third element of
the Mathies test, I find the evidence presented is insufficient
for me to conclude that a reasonable likelihood existed that the
hazard contributed to by any one of the violations will result
in a serious injury. In support of this finding it should be
noted that the undisputed evidence in this case establishes that
this pit operated intermittently and that when it was in operation, only two or three employees operated the facility.
Exposure to the hazardous violative condition was not high. Louis
Vezzani testified that during the 25 years the vezzani plant was
in operation, they never had a lost-time injury. His testimony
was undisputed. Upon evaluation of the evidence I find that,
while the violations were serious, there is insufficient evidence
to conclude that there was a reasonable likelihood that the hazard contributed to by the violation would result in a serious
injury.
Motion of Both Parties Denied
The Secretary made a motion for default judgment because
Respondent failed to serve her with a copy of respondent's
answer. The answer was filed by the operator, Louis vezzani, not
by his counsel. The Secretary's counsel did not know Respondent

1112

was represented by counsel until she received Respondent's reply
to my prehearing order. The Secretary was provided with a copy
of the answer and the Secretary's motion for default was denied.
Respondent moved for sanctions and for dismissal of all citations
on grounds that the Secretary did not serve him with a copy of
her reply to the prehearing order and again because she filed her
post-hearing brief a few days late. I have considered the matter
and I deny all motions.
There is no meritorious reason why these
cases should not be decided on the merits.
Civil Penalty Assessment
Section llO(i) of the Act mandates consideration of six
criteria in assessing a civil penalty.
In compliance with the
mandate, I have considered the following:
The operator's sand and gravel business was of small size.
Both the Ross Pit and the Vezzani Pit were small intermittent
operations.
In the absence of any evidence to the contrary, I find
that proposed penalties would not adversely affect Walsenburg's
ability to continue in business.
Exhibit P-7, a computer printout, indicated that, within
the two years prior to the inspection of both the Ross and
Vezzani pits, Walsenburg was assessed no violations. This is
a good history.
I find the operator's negligence to be moderate. The gravity was high.
The guard-related violations, the electricityrelated violations, and the elevated roadway violation were serious and could have resulted in serious bodily harm or death, even
though the evidence is insufficient to conclude that there was
a reasonable likelihood that the hazard they contributed to would
result in an injury.
The company demonstrated good faith in its abatement of the
violations.
Everything considered, I assess civil penalties which I find
appropriate for each violation as follows:

1113

Citation No.

30 C.F.R. No.

Penalty Assessed

3065795
3065798
3065799
3065800
3065881
3065882
3065883
3065884
3065885
3065886
3065887
3065898
3065900

56.12005
56.14001
56.14001
56.14006
56.12025
56.12030
56.12008
56.14001
56.12013
56.12028
56.12018
56.1000
56.9022

$20.00
40.00
40.00
40.00
40.00
25.00
30.00
40.00
50.00
20.00
20.00
20.00
50.00
Total

$435.00

ORDER
1.
Citation Nos. 3065798, 3065799, 30657800, 3065881, 3065882,
3065883, 3065884, 3065885, and 3065900 are modified to delete the
characterization "significant and substantial" and, as modified,
the citations are affirmed.
2.
Citation Nos. 3065795, 3065886, 3065887, and 3065898 are
affirmed.
Walsenburg Sand & Gravel Company is ordered to pay the sum
of $435 within 30 days of the date of this decision as a civil
penalty for the violations found herein.

F. Cetti
istrative Law Judge
Distibution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, l961 Stout Street,
Denver, CO 80294 (Certified Mail)
Ernest U. Sandoval, Esq., P.O. Box 541, Walsenburg, CO 81089
(Certified Mail)
ek/ot

1114

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

MAY 24J990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

. CIVIL PENALTY PROCEEDING
Docket No. SE 89-103-M
A.C. No. 54-00298-05504

v.
Cantera Hipodromo Mine
CANTERA HIPODROMO, INCORPORATED,:
Respondent
DECISION
Appearances:

William G. Staton, Esq., Office of the Solicitor,
U.S. Department of Labor, New York, New York, for
the Petitioner;
Antonio Ortiz Brunet, President, Cantera
Hipodromo, Canovanas, Puerto Rico, Pro se, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding filed by the petitioner
against the respondent pursuant to section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), seeking a
civil penalty assessment in the amount of $178, for an alleged
violation of mandatory safety standard 30 C.F.R. § 56.11001. The
respondent filed an answer denying the violation, and a hearing
was held in San Juan, Puerto Rico.
The parties did not file
posthearing briefs, but I have considered their oral arguments
made in the course of the hearing in this matter.
Issues
The issues presented in this proceeding are (1) whether the
respondent has violated the standard as alleged in the proposal
for assessment of civil penalty, (2) whether the alleged violation was "significant and substantial" (S&S), and (3) the appropriate civil penalty to be assessed against the respondent for. ·

1115

the violation based upon the civil penalty assessment criteria
found in section llO(i) of the Act.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seg.
2.

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

3.

Commission Rules, 20 C.F.R. § 2700.1 et seg.
Discussion

The contested section 104(a) "S&S" Citation No. 3049732, was
issued on October 19, 1988, and it cites an alleged violation of
mandatory safety standard 30 C.F.R. § 56.11001. The cited
condition or practice states as follows:
No safe means of access was provided to the drive belt
of vibrator #2. This area is visited for maintenance,
the height from the ground is about 9 feet.
Petitioner's Testimony and Evidence
MSHA Supervisory Mine Inspector Juan Perez testified as to
his experience, and he confirmed that he has served as an inspector for 15 years. He stated that he made a courtesy visit to the
respondent's stone processing plant on August 27, 1987, when it
was initially constructed, and that he did so at the request of
the respondent.
He confirmed that the plant was not producing
during his visit and that he inspected the equipment and informed
the respondent that a platform was required around the perimeter
of the No. 2 vibrator in order to provide a safe means of access
for personnel who would be performing periodic greasing and
maintenance for the unit.
Mr. Perez explained the operation of the rock crushing and
sizing plant, and produced a sketch of the No. 2 vibrator, which
reflects how it appeared during his courtesy visit without the
platform, and how it appeared during his compliance inspection on
October 19, 1988, with a platform on one side of the No. 2
vibrator (exhibit P-1).
Mr. Perez stated that the No. 2 vibrator was approximately
9 feet high from ground level to the platform area, and that the
unit itself was approximately 3 feet high.
The distance from the
top of the unit to the ground below was 12 feet.
Mr. Perez
.
confirmed that while MSHA usually recommends that a work platform
be completely installed around all sides of a vibrator unit at
other similar plants, he accepted the respondent's installation
of a work platform, with guard rails, around two sides and rear

1116

of the unit, and that this provided a safe means of access to the
unit when maintenance is being performed (photographic exhibits
R-5 and R-6).
Mr. Perez confirmed that when he inspected the plant on
October 19, 1988, respondent's plant supervisor Ramon Rondon was
with him. Mr. Perez stated that he observed that one platform
with a handrail was installed along the left side of the unit,
and that the platform with handrails which should have been
installed on the right side of the unit was lying on the ground
away from the unit in an area where the grass had grown around
it, and it appeared to be in a rusty condition (photographic
exhibit R-1).
Mr. Perez stated that Mr. Rondon informed him that he was
having problems with the No. 2 vibrator screens which were
located inside the unit, but that the unit was required to process and size some of the stone which was dumped into it by means
of a conveyor belt. Mr. Rondon further informed him that he
intended to continue using the unit even though he was experiencing some mechanical problems with the screen devices. Mr. Perez
stated that he observed some stockpiled stone materials on the
ground, and he assumed that the materials had been recently
processed through the No. 2 vibrator.
Mr. Perez stated that maintenance work and greasing had to
be performed on the vibrator on a daily basis, or at least two
times a week, and that the lack of a work platform on both sides
of the unit did not provide a safe means of access for at least
one of the maintenance personnel who performed this work.
Mr. Perez believed that the lack of a platform exposed the maintenance man to a danger of falling 9 feet to the ground if he
were on a ladder performing work on the side of the unit without
the platform, and at least 12 feet to the ground if he were on
top of the unit attempting to perform some work on the unit.
Mr. Perez further believed that it was reasonably likely that a
fall would occur, and that if it did, the individual would likely
suffer lost work day injuries of a reasonably serious nature.
Under all of these circumstances, Mr. Perez concluded that the
violation was significant and substantial.
Mr. Perez confirmed that he based his moderate negligence
finding on the fact that the respondent intended to install the
required platform and had installed a platform with handrails
along one side of the vibrator unit (Tr. 14-42) .
On cross-examination, Mr. Perez confirmed that although his
experience does not include maintenance work on vibrators, he has
observed the greasing and maintenance work performed from platforms on similar units. Mr. Perez further confirmed that while
he did not know how long the vibrator screen was not in an operational condition, he believed that the problems experienced by

1117

Mr. Rondon with the screening devices occurred on the day of his
inspection ..
Mr. Perez stated that he spoke to Mr. Ortiz during the
afternoon of his inspection, and he confirmed that Mr. Ortiz
informed him that the new No. 2.vibrator unit had arrived at the
dock and would be brought to the site and installed by the end of
the week.
Mr. Perez stated that during his inspection on October 19,
1988, he observed a wooden ladder at the plant and that
Mr. Rondon informed him that the ladder was sometimes used to
grease and service the No. 2 vibrator unit.
Since the ladder
reached only to the middle of the unit, Mr. Rondon further
informed him that someone would climb to the top of the unit from
the platform which was on one side of the unit in order to grease
or service it. Under these circumstances, Mr. Perez believed
that the use of a ladder, and climbing to the top of the unit,
presented a falling hazard to the individual using these means of
access to reach and service the No. 2 vibrator and screens.
Mr. Perez stated that he observed no one performing any
greasing or maintenance work on the vibrator on the day of his
inspection, and he observed no grease fittings from the unit to
the ground.
He also confirmed that the vibrator gears were
intact on the machine and he did not observe any of the machine
parts shown in photographic exhibits R-2, R-3, and R-4, on the
ground.
Mr. Perez confirmed that the same No. 2 vibrator unit was
cited by MSHA Inspector Roberto Torres Aponte during a previous
inspection on March 30, 1988, and that the citation was issued
pursuant to section 56.11001, because a platform was not
installed around the unit to provide a safe means of access for
maintenance work on the unit (Tr. 53-63).
MSHA Inspector Alexandro Baptista confirmed that he terminated the October 19, 1988, citation issued by Inspector Perez,
and that he did so after finding that platforms with guard rails
had been installed around three sides of the No. 2 vibrator.
Mr. Baptista also confirmed that the No. 1 vibrator unit was also
equipped with a platform and guard rails (Tr. 75-77).
Antonio Ortiz Brunet, respondent's presfdent, stated that he
operates three plants, and he described them as a sand plant, a
stone quarry plant, and the portable stone crushing, sizing, and
processing plant which was inspected by Inspector Perez on
October 19, 1988. Mr. Ortiz confirmed that he requested
Mr. Perez to visit the plant when it was being constructed, and
he did not dispute the need for work platforms to provide a safe
means of access for the No. 2 vibrator unit. Mr. Ortiz stated
that he has always done what was required of him to comply with

1118

the law and MSHA's requirements, and to insure the safe operation
of his plant.
Mr. Ortiz stated that he contested the citation because he
was not happy with the action taken by Inspector Perez. He
explained that he informed Mr. Perez that the plant was not in
operation because the No. 2 vibrator was inoperative and that a
new vibrator, which was at the dock, would be installed within a
few days and that the platforms would also be installed at the
same time. After the vibrator and platforms were installed,
Mr. Ortiz stated that he called Mr. Perez and invited him to the
plant to verify the installation, but that Mr. Perez declined to
come to the plant and informed him that he did not have the time.
Mr. Ortiz confirmed that the top of the vibrator was 12 feet
above ground level, and that the vibrator was approximately
4 feet high. He conceded that only one platform was installed
along one side of the vibrator on October 19, 1988, and that the
other platform had been removed and was on the ground. Mr. Ortiz
stated that the vibrator was being dismantled in anticipation of
the installation of the new one which he had purchased. He
stated that the vibrator was not in operation on the day of the
inspection because of the inoperative screens and that it had not
been in operation for approximately 4 weeks prior to the inspection. He stated further that the vibrator gears had been removed
from the unit prior to the inspection, and he produced three
photographs of the old parts which he said were on the ground
(exhibits R-2, R-3, and R-4). He indicated that the gears were
removed while both platforms were in place, and that the platform
which was not in place and on the ground when Inspector Perez
observed it had been taken down while the vibrator unit was being
dismantled. He confirmed that he was not at the plant everyday,
but tries to visit it once a week.
Mr. Ortiz stated that during the time the vibrator was
inoperative, he sold the materials which had been previously
processed and stockpiled through the plant. He agreed that if
the plant were in operation the citation would be justified.
However, since the plant was down and could not operate with the
broken vibrator, he did not believe that the citation issued by
Mr. Perez was justified, and he considered the inspector's action
as unfair (Tr. 78-99).
Inspector Perez was recalled, and he confirmed that when he
observed the No. 2 vibrator on October 19, 1988, it was intact
and no gears or other parts were removed, and he observed no
evidence of any repair work. He further confirmed that he spoke
with plant superintendent Rondon who informed him that there h~q
been a problem with the vibrator that morning and that only half
of the plant was operating. The superintendent in no way indicated that the plant had been down for 4 weeks (Tr. 101-102).
Mr. Perez believed that the plant was in operation the previous

1119

weeks because of the coloring of the stockpiled crushed rock. He
stated that after he had finished his inspection, and while
discussing the results with Mr. Rondon, Mr. Ortiz informed him
about the vibrator problem (Tr. 103).
Plant Superintendent Ramon ~--Rondon testified that on the day
of the inspection work was being performed on the ball bearings
and pulleys of the screening machine. He explained that crushing
could not be done because the vibrating screen was stuck (Tr.
109-111). Mr. Rondon confirmed that the vibrator was shutdown on
the day of the inspection. He explained that the vibrator and
screen were working on the morning of the inspection, but that
when they became stuck that same morning, the vibrator was shutdown. He also indicated that the vibrator was operational
11-days prior to the inspection (Tr. 112-113). The vibrator was
working the day of the inspection, but when some of the parts
broke, the plant was shutdown (Tr. 116).
Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
safety standard 30 c.F.R. § 56.11001, for failure to provide a
safe means of access for the No. 2 vibrator at its crushed stone
screening and processing plant. Section 56.11001, provides as
follows:
"Safe means of access shall be provided and maintained
to all working places."
The evidence in this case establishes that Inspector Perez
had previously made a "compliance assistance" visit to the plant
in August 1987, during which time he advised the respondent of
the need for a platform to provide access to all sides of the
vibrator where maintenance work was required to be done on the
equipment. Upon his return to the plant site on October 19,
1988, to perform a regular plant inspection, Inspector Perez
found that a platform had been installed around one side of the
vibrator but not on the other side where greasing and other
maintenance work was required to be performed. Mr. Perez found
the platform, with guard rails attached, which should have been
installed around the rest of the vibrator, lying on the ground,
and it appeared to have been there for some time. Under these
circumstances, and since one side of the vibrator lacked a platform which would provide a safe means of access for maintenance
personnel, Mr. Perez issued the citation.
The respondent's president, Antonio Ortiz Brunet, did not
dispute the need for work platforms on both sides of the No. 2.
vibrator to provide a safe means of access for maintenance personnel, nor did he dispute the fact that only one platform had
been installed on one side of the vibrator on the day of the

1120

inspection, and that the other platform had been removed and was
lying on the ground.
In his defense, Mr. Ortiz maintained that at the time of the
inspection, the cited vibrator was not in operation because of
some inoperative screens, and that it had not been in operation
for approximately 4-weeks prior to the inspection. He also
maintained that the vibrator gears had been removed, and that the
vibrator was being dismantled in anticipation of replacement by a
new one which had arrived on the island and was awaiting delivery
from the dock to the plant. Since the plant was down and could
not operate with a broken vibrator, Mr. Ortiz believed that the
citation was not justified, particularly when he informed the
inspector that the vibrator was being replaced by a new one.
The question of whether or not the vibrator was in operation
at the time of the inspection is relevant to the question of
whether or not the situs of the violation was a "working place"
covered by section 56.11001, and it is also relevant to the
gravity or seriousness of the violative condition. The fact that
the respondent purchased a new replacement vibrator prior to the
inspection, and that it intended to install it, may not serve as
a defense to the violation, but it may be considered as evidence
of the respondent's good faith compliance.
Mr. Ortiz' testimony that the vibrator was inoperative on
the day of the inspection, and that the plant was down, and had
not operated for 4 weeks, is in direct conflict with the testimony of Inspector Perez, and the respondent's own witness, plant
superintendent Ramon Rondon. Mr. Perez testified that he personally observed the cited vibrator on the day of his inspection
and that it was intact and the gears had not been removed.
Mr. Perez saw no evidence of any repair work taking place, and he
testified that Mr. Rondon informed him on the day of the inspection that the vibrator may have experienced some problem earlier.
in the week, and that it did develop a problem on the morning of
the inspection, but at least half of the plant was still in
operation at that time. Mr. Rondon testified that although some
maintenance work was being performed on the screening machine on
the morning of the inspection, the vibrator in question had been
in operation that morning, but it subsequently developed a problem and the plant had to be shutdown. Mr. Rondon also testified
that the vibrator had been operational at least 11-days prior to
the inspection.
Mr. Ortiz argued that a photograph of the vibrator gear,
which also shows the date of the newspaper depicted in the photograph, establishes that the vibrator was not installed, and tha~
the plant was down on the day before the inspection (Tr. 105).
Although the inspector indicated that Mr. Ortiz was not with him
when he visited the plant during his inspection, Mr. Ortiz stated

1121

that he was there in the afternoon (Tr. 105). He also stated
that he tried to visit the plant at least once a week.
I have examined the photographs of the vibrator gears which
Mr. Ortiz claims had been removed prior to-the day of the inspection (Exhibits R-2, R-3, and R-4). Apart from the photographs,
Mr. Ortiz produced no documentation or maintenance records to
establish when the vibrator gears were removed and sent to the
shop for maintenance. Photographic exhibit R-3, is dated in ink
on the reverse side, and the dates "7-22-1988" and 11 7-19-1988"
appear. No further explanation was forthcoming from Mr. Ortiz
with respect to these dates. Assuming the photographs were taken
in July, 1988, this would have been some 3-months prior to the
issuance of the citation on October 19, 1988, and any suggestion
that the gears had been removed and the plant was down as early
as July, 1988, would be contrary to the testimony by Mr. Ortiz
that the plant was down for 4-weeks prior to the inspection.
It
would also be contrary to the testimony of Mr. Rondon that the
vibrator and plant were in operation as early as 11-days prior to
the inspection, and indeed, on the morning of the inspection.
It
is impossible to decipher the date of the newspaper shown in
photographic exhibit R-2, even with a hand-held magnifying glass.
Under the circumstances, I have given little evidentiary weight
to the photographs in question.
After careful consideration of all of the evidence and
testimony in this case, I find the testimony of Inspector Perez
and Mr. Rondon to be more credible than that of Mr. Ortiz. Based
on the testimony of Mr. Perez and Mr. Rondon, I conclude and find
that the vibrator and plant were in operation on the morning of
October 19, 1988, when the inspection was conducted by Mr. Perez,
and Mr. Ortiz' assertion to the contrary is rejected.
I further
conclude and find that the cited vibrator location which lacked a
platform to provide a safe means of access for maintenance and
service personnel was a "working place" within the meaning of the
cited standard, and that the petitioner has established a violation by a preponderance of the evidence. Accordingly, the citation IS AFFIRMED.
Significant and Substantial Violation
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).

1122

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum the Secretary of Labor must
prove:
(1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is,
a measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine ,
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
·
Based on the evidence and the credible testimony of
Inspector Perez, I conclude and find that the violation posed a
discrete falling hazard and constituted a significant and substantial violation. The intent of the cited standard section
56.11001, is to provide a safe means of access for mine personnel
who are required to service equipment or to routinely check it
during its operation.
In this case, the lack of a platform
deprived mine personnel of a safe mans of access to the equipment.
Inspector Perez determined that the vibrator required
either daily or weekly maintenance, and that maintenance per- .
sonnel who were required to service the equipment would reasonably likely be exposed to a hazard of falling approximately 9 feet
to the ground below.
If this occurred, it would be reasonably
likely that a person would suffer more than just ''first aid" type

1123

of injuries (Tr. 33-34). He explained that without the platform
as a safe means of access to the vibrator, anyone servicing the
equipment would have to climb on top of it to service it or
perform maintenance work, and that usually one person performs
this task (Tr. 35). Mr. Perez confirmed that plant superintendent Rondon informed him that an employee was required to service
the vibrator, and that without the platform, the person doing the
work accessed the equipment by climbing on top of it from a
nearby walkway (Tr. 43, 49-51).
In view of the foregoing, I conclude and find that the
petitioner has established by a preponderance of the evidertce
that the violation was significant and substantial. Accordingly,
the inspector's finding in this regard IS AFFIRMED.
Size of Business and Effect of Civil Penalty on the Respondent's
Ability to Continue in Business
The evidence reflects that the respondent operates a sand
plant, a stone quarry plant, and a portable rock processing plant
where the violation in question took place. The respondent's
total annual production was approximately 51,071 man-hours, and
the facility where the citation was issued worked 17,440 manhours annually.
The respondent employs a total of 11 employees
(Tr. 13) •
The respondent's President, Antonio Ortiz Brunet described
the facility in question as a stone crushing and sizing plant
producing and processing stone which was sold and used to make
asphalt, concrete, and cement blocks.
I conclude and find that the respondent is a small crushed
stone mine operator, and absent any evidence to the contrary, I
further conclude and find that the civil penalty assessment for
the violation in question will not adversely affect the respondent's ability to continue in business.
Good Faith Compliance
Inspector Perez fixed the abatement time as October 23,
1988, and Mr. Ortiz confirmed that the new No. 2 vibrator unit
was installed within 3 or 4 days after the citation was issued.
Inspector Perez confirmed that Mr. Ortiz telephoned him later in
the week after the citation was issued and informed him that the
new vibrator had been brought to the facility and installed with
the platform around three sides.
Although the record reflects that the citation was term- .
inated on December 27, 1988, Inspector Perez agreed that the
respondent exercised good faith compliance in timely abating the
condition and providing a safe means of access to the No. 2
vibrator.
I conclude and find that the respondent timely

1124

corrected the cited condition in good faith within the time fixed
by Inspector. Perez, and I have taken this into consideration in
assessing the civil penalty for the violation in question.
History of Prior Violations
The petitioner did not submit any information with respect·
to the respondent's compliance record or prior history of violations. However, MSHA's proposed civil penalty assessment
includes an MSHA Form 1000-179, which reflects that the respondent had eight a_ssessed violations for the 24-month period prior
to the issuance of the contested citation on October 19, 1988.
One of those prior violations is a section 104(a) "S&S" Citation
No. 3050735, issued on March 3-Q,_ 19AEL,_citing a violation of
30 C.F.R. § 56.11001, for the failure of the respondent to provide a safe means of access for the same No. 2 vibrator screen
unit which is the subject of the contested citation in this case.
Under the circumstances, although I cannot conclude that the
respondent has a particularly poor compliance record, I have
considered the fact that the respondent was cited a second time
for the identical condition 7 months after the first violation
which was issued on March 30, 1988.
Negligence
Inspector Perez confirmed that he based his moderate negligence finding on the fact that the respondent intended to comply
with section 56.11001, and had installed one.of the platforms
which provided some access to at least one side of the No. 2
vibrator at the time of his compliance inspection of October 19,
1988.
Mr. Ortiz testified that at the time the citation was issued
the new No. 2 vibrator which he had purchased at a cost of
$38,000, exclusive of spare parts, which cost an additional
$10,000, was at the receiving dock and had not as yet been
delivered to the site for installation. Mr. Ortiz testified
further that the old vibrator was causing problems and the new
one had been ordered as a total replacement. Under the circumstances, I agree with the inspector's moderate negligence finding, and I conclude and find that the violation resulted from the
respondent's failure to exercise reasonable care by removing part
of the platform and leaving it off of the No. 2 vibrator unit
until the new one was taken to the plant site and installed.
Gravity
In view of my significant and substantial (S&S) findings,.I
conclude and find that the violation was serious.

1125

Civil Penalty Assessment
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section llO(i} of the Act, I conclude and find that the petitioner's proposed civil penalty:assessment in the amount of $178,
for the violation in question, is reasona.ble and appropriate, and
IT IS AFFIRMED.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
in the amount of $178 for the violation which has been affirmed
in this case. Payment is to be made to the petitioner within ·
thirty (30} days of the date of this decision and order, and upon
receipt of payment; this matter is dismissed.

Distribution:
William G. Staton, Esq., Office of the Solicitor, U.S. Department
of Labor, 201 Varick Street, Room 707, New York, NY 10014
(Certified Mail}
Mr. Antonio Ortiz Brunet, President, Empresas Ortiz Brunet, Inc.,
Box 1839, Guaynabo, PR 00657-1839 (Certified Mail}
/fb

1126

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

MAY 24 \990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF ALONZO WALKER, :
Complainant
v.

.

DRAVO BASIC MATERIALS
COMPANY, INC.,
Respondent

DISCRIMINATION PROCEEDING
Docket No. SE 90-63-DM
MD 90-03
R & S Material

..
..
DECISION

Appearances:

William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, AL,
for the Secretary,
R. Henry Moore, Esq., Buchanan Ingersoll
Professional Corporation, Pittsburgh, PA,
for the Respondent.

Before:

Judge Fauver

On April 24, 1990, a hearing was held on the Secretary's
Application for Temporary Reinstatement under§ 105Cc> of the
Federal Mine Safety and Health Act of 1977, 30 C.F.R. § 801 et
seq.
Following oral argument, a decision was entered from the
bench. This decision confirms the bench decision.
I find that the evidence establishes a prima facie case of a
successor-in-interest relationship between R & S Materials, Inc4,
(predecessor) and Dravo Basic Materials Company, Inc.,
(successor).
The hearing evidence satisfies the Secretary's burden of
showing that the complaint by Alonzo Walker was not frivously
brought. This finding is ma:de without ruling in any way .on the
merits of the case.

1127

ORDER
WHEREFORE IT IS ORDERED that, pending a final decision on
the complaint of discrimination, Respondent~ Dravo Basic
Materials Company, Inc., shall irii.mediately reinstate Alonzo
Walker to the position he held at subject mine immediately before
his discharge on January 10, 1990, or to a similar position, at
the same rate and overtime pay, shift assignment, and with such
other employment benefits that he would be receiving had he not
been discharged. Provided: the parties may agree to an economic
reinstatement Cpay without physical reemployment) if they file a
signed agreement to such reinstatement with the signed consent of
Alonzo Walker.

ftbt~ 9-~//-'-7

William Fauver
Administrative Law Judge

Distribution:
William Lawson, Esq., Office of the Solicitor, U.S. Department
of Labor, 2015 2nd Ave., N. 201, Birmingham, AL 35203 (Certified
Mail)
R. Henry Moore, Esq., USX Tower, 57th Floor, 600 Grant Street,
Pittsburgh, PA 15219 (Certified Mail)
Mr. Alonzo Walker, 3305 Lincoln Drive, Selma, AL 36701 (Certified
Mail)
iz

1128

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

May 24, 1990
CONSOLIDATION COAL COMPANY,
contestant

v.

.
.
..
:

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

.

..
.
..

CONTEST PROCEEDINGS
Docket No. WEVA 89-234-R
Citation No. 3114001; 5/31/89
Docket No. WEVA 89-235-R
Citation No. 3114002; 5/31/89
Docket No. WEVA 89-236-R
Citation No. 3114003; 5/31/89
Docket No. WEVA 89-237-R
Citation No. 3114004; 5/31/89
Docket No. WEVA 89-238-R
Citation No. 3103921; 6/1/89

.
.
:

.
.
.

Docket No. WEVA 89-239-R
Citation No. 3103922; 6/1/89
Docket No. WEVA 89-240-R
Citation No. 3103923; 6/1/89
Docket No. WEVA 89-241-R
Citation No. 3103924; 6/1/89
Docket No. WEVA 89-242-R
Citation No. 3103925; 6/1/89
Docket No. WEVA 89-243-R
Citation No. 3103926; 6/1/89
Docket No. WEVA 89-244-R
Citation No. 3103927; 6/1/89

..

Docket No. WEVA 89-245-R
Citation No. 3103928; 6/1/89
Blacksville No. 1 Mine
Mine ID 46-01867

1129

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

..

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 90-3
A. C. No. 46-01867-03815
Blacksville No. 1 Mine

v.
CONSOLIDATION COAL COMPANY,
Respondent

Docket No. WEVA 90-8
A. C. No. 46-01318-03901
Robinson Run No. 95
DECISION

Appearances:

Henry Chajet, Esq., Jackson & Kelly,
Washington, D.C.; and Walter J. Scheller, III,
Esq., Consolidation Coal Company, Pittspurgh,
Pennsylvania, for the Contestant-Respondent;
Page H. Jackson, Esq., Office of the Solicitor,
u. s. Department of Labor, Arlington, Virginia,
for the Respondent-Petitioner.

Before:

Judge Merlin

The above-captioned twelve notices of contest have been
filed by the operator, Consolidation Coal Co~pany, pursuant to
section 105(d) of the Mine Safety and Health Act of 1977,
30 u.s.c. § 815(d), (hereinafter referred to as the "Act" or
the "Mine Act") , challenging the validity of citations issued
to it by the Secretary of Labor under section 104(a) of the Act,
30 u.s.c. § 814(a), which allege violations of 30 C.F.R.
§ 50.30-l(g) (3).
29 C.F.R. § 2700.20 et seq. Docket No.
WEVA 90-3, as captioned above, is the Secretary's petition for
the assessment of civil penalties filed in accordance with
section 105(d) supra, and sections llO(a) and (i) of the Act,
30 u.s.c. § 820(a), and (i), for the assessment of civil penalties in the amount of $250 apiece for the violations disputed in
the notices of contest. 29 C.F.R. § 2700.25 et seq. Docket No.
WEVA 90-8 is a petition filed by the Secretary seeking penalties
of $250 each for twelve additional 104(a) citations, also based
upon alleged violations of 30 C.F.R. § 50.30-l(g) (3).
on January 24, 1990, I issued an order upholding the
validity of Part 50 and determining that penalties could be
assessed for violations thereunder. On February 14, 1990, I
denied the operator's request to certify my order for interlocutory appeal.
By order dated March 8, 1990, the Commission
denied the operator's request for interlocutory appeal. .Thereafter on March 22, 1990, a prehearing conference was held with
counsel and on April 30, 1990, the parties submitted st~pulations

1130

of law and fact together with supporting briefs.
1990, counsel appeared at oral argument.

On May 16,

The issue presented for resolution is whether the operator
violated 30 C.F.R. § 50.30-l(g) (3) as charged, and if so, the
appropriate amount of civil penalties to be assessed.
section 103(d), 30 u.s.c. § 813(d), sets forth the recordkeeping provisions of the Mine Act as follows:
(d) All accidents, including unintentional roof
falls (except in any abandoned panels or in areas which
are inaccessible or unsafe for inspections), shall be
investigated by the operator or his agent to determine
the cause and the means of preventing a recurrence.
Records of such accidents and investigations shall be
kept and the information shall be made available to the
Secretary or his authorized representative and the
appropriate State agency. Such records shall be open
for inspection by interested persons. Such records
shall include man-hours worked and shall be reported at
a frequency determined by the Secretary, but at least
annually.
Part 50 of the Secretary's regulations, 30 C.F.R. Part 50,
provides in pertinent part as follows:
Subpart A--General
§

50.1

Purpose and scope.

This Part 50 implements sections 103(e) and 111 of
the Federal Coal Mine Health and Safety Act of 1969,
30 u.s.c. 801 et seq., and sections 4 and 13 of the
Federal Metal and Nonmetallic Mine Safety Act, 30
u.s.c. 721 et seq., and applies to operators of coal,
metal, and nonmetallic mines.
It requires operators to
immediately notify the Mine Safety and Health Administration (MSHA) of accidents, requires operators to
investigate accidents and restricts disturbance of
accident related areas. This part also requires operators to file reports pertaining to accidents, occupational injuries and occupational illnesses, as well as
employment and coal production data, with MSHA, and
requires operators to maintain copies of reports at
relevant mine offices. The purpose of this part is to
implement MSHA's authority to investigate, and to
obtain and utilize information pertaining to, accidents, injuries, and illnesses occurring or originating
in mines.
In utilizing information received under
Part 50, MSHA will develop rates of injury occurrence
(incident rates or IR), on the basis of 200,000 hours

1131

of employee exposure (equivalent to 100 employees
working 2;000 hours per year). The incidence rate for
a particular injury category will be based on the
formula:
IR=no. of cases x 200,000
hours of employee exposure
MSHA will develop data respecting in]ury severity using
days away from work or days of restricted work activity
and the 200,000 hour base as criteria. The severity
measure (SM) for a particular injury category will be
based on the formula:
SM=sum of days x 200,000
hours of employee exposure

*

*

*

*

*

Subpart c--Reportinq of Accidents, Injuries,
and I1lnesses
§

50.20. Preparation and submission of MSHA Report
Form 7000-1--Mine Accident, Injury, and Illness Report.

(a) Each operator shall maintain at the mine
office a supply of MSHA Mine Accident, Injury, and
Illness Report Form 7000-1. These may be obtained from
MSHA Metal and Nonmetallic Mine Health and Safety
Subdistrict Offices and from MSHA Coal Mine Health and
Safety Subdistrict Offices. Each operator shall report
each accident, occupational injury, or occupational
illness at the mine. The principal officer in charge
of health and safety at the mine or the supervisor of
the mine area in which an accident or occupational
injury occurs, or an occupational illness may have
originated, shall complete or review the form in accordance with the instructions and criteria in §§ 50.20-1
through 50.20-7. * * *

*

*

*

*

*

Subpart D--Quarterly Employment and Coal
Production Report
§

50.30 Preparation and submission of MSHA Form 70002--Quarterly Employment and Coal Production
Report.
(a) Each operator of a mine in which an individual worked during any day of a calendar
quarter shall complete a MSHA Form 7000-2 in

1132

accordance with the ins~.cuctio.ns and criteria
in § 50.30-1 * * *·

*
§

*

*

*

*

*

50.30-1 General instructions for completing MSHA Form
7000-2.

*

*

*

*

(g) Employment, Employee, Hours, and Coal Producti on-- *
*
*
*
*
(3) Total employee-hours worked during the
quarter: Show the total hours worked by all employees
during the quarter covered. Include all time where the
employee was actually on duty, but exclude vacation,
holiday, sick leave, and all other off-duty time, even
though paid for. Make certain that each overtime hour
is reported as one hour, and not as the overtime pay
multiple for an hour of work. The hours reported
should be obtained from payroll or other time records.
If actual hours are not available, they may be estimated on the basis of scheduled hours. Make certain
not to include hours paid but not worked.
Citation No. 311400 which is the citation in the notice
of contest WEVA 89-234-R and the first citation in the penalty
petition WEVA 90-3, is representative of all citations
involved in this matter. It cites a violation of 30 C.F.R.
1
§ 50.30-l(g) (3) .
In describing the condition or practice
Citation No. 311400 provides as follows:
Evidence gathered during a Part 50 Audit of this
mine indicates that the operator significantly over
reported Employee Hours on the Quarterly Employment and
Coal Production Report (Form 7000-2) for the
forth [sic] quarter of calendar year 1988. According
to management 3/4 of an hour is turned in each day for
each employee which covers time spent on mine property
before and after work hours.
The parties have submitted the following stipulations:
1. Consolidation Coal Company ("Consol") is the owner and
operator of the Blacksville No. 1 Mine located in Monongalia
County, West Virginia.
1

Each citation in the notices of contest and in the two
penalty petitions deals with a different calendar quar~er in one
of the two Consolidation mines involved.

1133

2. Consol is the owner and operator of the Robinson Run
No. 95 Mine located in Harrison County, West Virginia.
3. Consol, the Blacksville No. 1 Mine, and the Robinson Run
No. 95 Mine are subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq. (hereinafter "the Mine Act").
4. The Mine Safety and Health Administration, United states
Department of Labor, (hereinafter "MSHA") has been the agency
responsible for the enforcement of the Mine Act.
5. All of the citations at issue in these matters were
issued by a duly authorized representative of the Secretary of
Labor and properly served upon Consol, and can be resolved
together upon the basis of these joint stipulations.
6. The Administrative Law Judge and the Federal Mine Safety
and Health Review Commission have jurisdiction of these cases
. pursuant to Sections 105 and 113 (d) of the Mine Act, 30 u.s.c.
§§ 815, 823 (d).
7. With respect to the issues previously decided by the
Administrative Law Judge in his Order dated January 24, 1990, the
parties agree that they will not brief or reargue them at this
time, but that they are preserved for appeal. Nothing contained
herein shall serve to waive said issues or be alleged or deemed
an admission against Consol or the Secretary with respect to said
issues.
8. The violations alleged in the individual citations were
abated by Consol within the time set for abatement.
9. Copies of the subject citations are authentic and may be
admitted into evidence.
10.
30 C.F.R. § 50.20 requires, inter alia, that mine
operators and independent contractors, submit a MSHA Form 7000-1
(MSHA Mine Accident, Injury, and Illness Report Form) to MSHA
within ten days after any accident, occupational injury, or
occupational illnesses occurs at the mine or is diagnosed as
having originated at the mine.
11.
30 C.F.R. § 50.20 requires such reporting regardless of
whether the event occurs during, before, or after a scheduled
shift, and, in the case of an accident, regardless of whether the
individual injured is a miner or employee of the mine operator.
12.
30 C.F.R. § 50.30 requires each operator of a mine and
independent contractors, which had any individual workipg any day
at the mine during the calendar quarter, to submit a completed

1134

MSHA Form 7000-2 ("Quarterly Employment and Coal Production
Report").
13.
Data from Forms 7000-1 and 7000-2 are used to calculate
the MSHA injury incidence rate pursuant to the formula set forth
at 30 c.F.R. § 50.1. MSHA calculates such MSHA injury incidence
rates for each mine, each mine operator, each state, each MSHA
District and Subdistrict office, and on a national basis, using
this formula.
14.
The hours reported on Form 7000-2 are also used by MSHA
to calculate a "tons per hour worked" figure for the coal industry on a national basis. On occasion, MSHA has used such
information to calculate a "tons per hour worked" figure for
individual mines. The calculations of "tons per hour worked"
statistics has no relationship to MSHA's statutory safety mission
and is done only as a public informational service. Consol
maintains that such use is not relevant to this case.
15. With respect to Consol, the hours reported on
Form 7000-2 are not used for any statutory or regulatory purpose
other than the calculation of an incidence rate. With respect to
all independent contractors and operators of mines other than
coal mines, MSHA uses the hours reported from Form 7000-2 for
purposes of 30 C.F.R. Part 100. Such Part 100 use is not applicable to Consol. Consol maintains that such Part 100 use is
irrelevant to this case.

16. The incidence rate is used by MSHA as one method to
analyze injury and illness trends and allocate inspection
resources.
17.
In addition to the calculation of incidence rates,
MSHA uses the information obtained from the Form 7000-1 to:
(a) determine whether an accident should be investigated; (b)
analyze injury and illness trends by type, occupation or location; and (c) allocate inspection resources and to focus
inspections.

18. Accidents and occupational injuries occurring to miners
off mine property, such as a coal truck driver injured in an
acci~ent on a public highway, are not subject to the reporting
requirements of 30 C.F.R. § 50.20.
19. MSHA does not require, and Consol has not recorded time
spent on mine property by nonemployee visitors such as inspect~rs, manufacturer's representatives, or representatives of
miners on nonscheduled shifts. Consol maintains that lack of
r7porting ~ime estimates on MSHA Form 7000-2 for representatives of miners on nonscheduled shifts stems from an oversight if
MSHA utilizes injuries of such personnel for incidence rate
calculations.

1135

20. The Secretary's accident and injury computer data
summaries list events reported pursuant to 30 C.F.R. § 50.20(a)
by mine sit·e, occupation, activity of injured, location of accident and equipment involved. The abstracts do not specify the
time of the event, whether the event occurred on shift or off
shift, or whether the employee was being paid when the event
occurred. There are some occupations and certain time periods at
the Blacksville No. 1 Mine and Robinson Run No. 95 Mine for which
injuries did not occur in 1986, 87 and, 88. The following are
summaries of the summaries for the mines and years during which
the citations in this case were issued.
(a) At the Blacksville No. 1 Mine, for calendar year 1988,
Consolidation Coal Company reported a total of fifty-one (51)
reportable incidents; fourteen (14) of the reportable incidents
were accidents without injuries; twenty-eight (28) were underground injuries to miners and foremen; three (3) were surface
injuries to miners and foremen; and six (6) were compensation
awards for occupational illnesses. While the location where some
of the events which occurred were unknown, none of the reported
injuries specified that they occurred at the bathhouse or the
parking lot.
(b) At the Robinson Run No. 95 Mine, for calendar year
1988, Consolidation Coal Company reported a total of seventyeight reportable Part 50 incidents. Fifteen (15) of the reportable incidents were accidents without injuries; forty-eight (48)
were underground injuries to miners and foreman; four (4) were
surface injuries; and eleven (11) were compensation awards for
occupational illnesses. While some of the locations where the
events occurred were unknown, one (1) of the reported injuries
specified that it occurred at the bathhouse. The miner injured
at the bathhouse was the "shower room employee" who was injured
while cleaning the shower room. The time of the incident was
unknown.
(c) At the Blacksville No. 1 Mine, for calendar year 1987
Consolidation Coal Company reported a total of seventy-eight (78)
reportable incidents. Fourteen (14) of the reportable incidents
were accidents without injuries; one was a non-occupationally
related cardiac arrest; forty-three (43)' were underground injuries; three (3) were surface injuries; and fourteen (14) were
compensation awards for occupational illnesses. While the location of some of the injuries was unknown, one (1) of the reported
injuries specified that it occurred at the bathhouse when an
employee was struck in the head by a falling basket.
(d) At the Robinson Run No. 95 Mine, for calendar year 1987
Consolidation Coal Company reported a total of one hundred thirty
incidents. Thirty-two (32) of the reportable incidents were
accidents without injuries; fifty-two (52) were underground

1136

injuries, ten (10) were surface injuries; thirty-six (36) were
compensation awards for occupational illnesses. While some of
the reported injuries occurred at unknown areas of the mine, one
(1) of the reported injuries specified that it occurred at the
lamp house.
The miner injured at the lamp house got cleaning
solution in his eyes while cleaning his protective glasses. One
(1) of the reported injuries also specified that it occurred at
the "bath unit".
The miner in the bath unit injured his back
while crawling on a screen. None specified that they occurred at
the parking lot of the mine.
(e)
At the Blacksville No. 1 Mine, for calendar year 1986
Consolidation Coal Company reported a total of forty-five (45)
incidents.
Fifteen (15) of the reportable incidents were
accidents without injuries; fifteen (15) were underground injuries; three (3) were surface injuries; and, fourteen (14) were
compensation awards for occupational illnesses. While some of
the injuries occurred at unknown locations of the mine, none (0)
of the reported injuries specified that they occurred at the
bathhouse or parking lot of the mine.
(f)
At the Robinson Run No. 95 Mine, for calendar year 1986
Consolidation Coal Company reported a total of seventy-two (72)
incidents.
Fifteen (15) of the reported incidents were accidents
without injuries, nineteen (19) were underground injuries; four
were surface injuries; thirty-four (34) were compensation awards
for occupational illnesses. While some of the reported incid~nts
occurred at unknown locations, one (1) of the reported inj~ries
specified that it occurred at the bathhouse. The miner injured
at the bathhouse was taking a shower when he struck his head on
the shower water valve causing a laceration.
21.
Examples of pre and post "shift" occupational injuries
at the Blacksville No. 1 Mine and the Robinson Run No. 95 Mine
during the years 1986, 1987, and 1988, that have been reported by
Consol to MSHA, pursuant to 30 C.F.R. § 50.20, by the filing of
MSHA Forms 7000-1, and used to calculate consol's incidence
rates, include:
MINE

DATE

EMPLOYEE

INCIDENT DESCRIPTION

Robinson Run 1

9/19/86

George Sandy

pre-shift; fell in
parking lot; broke arm

[Footnote 1 of the stipulations] Consol has informed
Counsel that this injury was reported on a Form 7000-1. The
injury does not appear on the secretary's accident and injury
computer data summary referred to in Stipulation 20.
Counsel
have not been able to resolve this discrepancy.

1137

Blacksville

.4/07/87

John Raines

pre-shift; falling basket
in bathhouse; laceration;
sutures

Robinson Run

8/10/87

Mark Wentz

pre-shift; cleaning
solution in eye; lost
time

Robinson Run

9/18/86

W.D. McKinney

post-shift; showering in
bathhouse; lacerations to
right ear

22. Violations of mandatory safety or health MSHA standards
at the Mine, caused by Consol employees, subject Consol to MSHA
citations regardless of whether they occur during, before or
after a scheduled shift. For purposes of MSHA jurisdiction and
to promote a safe work place, Consol considers all employees to
be on duty and subject to Consol's rules and policies whenever
they are on mine property.

23. Whenever its employees are on mine property Consol
considers such time to be "exposure time" during which defined
injuries and illness are reportable to MSHA.
24.
Consol requires that employees report to work prior to
the beginning of their scheduled shift so that they can be fully
prepared to begin their shift by obtaining necessary equipment or
clothing (e.g., lamps, self-rescuers, dust sampling pumps).
25.
Consol requires that employees remain on mine property
after the end of their scheduled shift to return equipment and
materials prior to departing from mine property.
26. While scheduled shift duration is eight hours in
length, actual shift time can vary by 10-15 minutes, more
or less, depending upon variables such as transportation
availability or crew readiness.
27.
The amount of pre and post shift time that employees
spend on mine property is variable at Consol's mines, and at
other mine sites, and no accurate record is kept of such time by
Consol.
28. Hourly employees are not paid for pre and post shift
exposure time on mine property and estimates of such time are not
used for wage calculations.
29.
Consol complies with 29 C.F.R. Part 516 and 29 c.F.R.
1904.21.
Consol maintains that such fact is irrelevant to this
case.
§

1138

30. Salaried employees at Con~ol's Blacksville No. 1 Mine
and Robinson.Run No. 95 Mine are paid a predetermined salary biweekly, based on working five scheduled shifts per week. These
salaried employees are estimated to be on the mine site an
average of 1.5 hours per shift in excess of their scheduled eight
hour shifts. This 1.5 hours includes exposure time spent in work
activities and at the bathhouse and the parking lot, before and
after scheduled shifts.
31. Consol maintains payroll records of the number of days
worked by its salaried employees, but such records are solely for
the purpose of payroll calculations and tracking absenteeism,
sick leave and vacation time. The records do not reflect actual
time worked or time spent at the mine site.
32. To arrive at its estimate of hours to be reported on
MSHA Form 7000-2 for salaried employees, Consol determines their
reportable hours by multiplying the number of scheduled shifts at
which salaried employees were present, times 8 scheduled hours
plus 1.5 average additional on site hours [reportable
hours = shifts present x ( 8+ 1. 5) ] •
33. MSHA has not issued citations for violations of 30
C.F.R. § 50.30 based on Consol's calculations of salaried
employee hours on MSHA Form 7000-2 for the Blacksville No. 1 Mine
and Robinson Run No. 95 Mine.
Because Consol's payroll records do not reflect actual hours
of salaried employees, MSHA has always accepted for salaried
employees at the Blacksville No. 1 Mine and the Robinson Run
No. 95 Mine an estimate of reportable hours on Form 7000-2. The
citations at issue in this proceeding are not predicated upon the
hours reported by Consol for salaried personnel.
34. Consol maintains payroll records of 8 hour shifts
scheduled, and overtime pay due for each hourly employee at the
Blacksville No. 1 Mine and the Robinson Run No. 95 Mine. These
records indicate, inter alia, the eight hour shift the hourly
employee was scheduled to work; whether the employee was present
during the shift; and the total number of hours to be paid,
including overtime due.
If the hourly employee(s) did not appear
for the scheduled shift, the record indicates the reason, and
whether the employee is to be compensated for that time. such
records are prepared solely for the purpose of payroll calculations, tracking absenteeism, sick leave and vacation time and do
not reflect actual time worked or time spent at the mine site.
35. To arrive at its estimate of hours to be reported on
MSHA Form 7000-2 for hourly employees, Consol determines their
mine site exposure hours by multiplying the number of scheduled
shifts during which the employees were present, times the a
scheduled shift hours plus the number of overtime hours to be

1139

paid, plus .75 hour of average time on the site in excess of
scheduled shift time and overtime paid [Reportable hours=shifts
present x(8+overtime hours+.75)).
36. For both hourly employees and salaried employees the
time paid or scheduled shifts do not, accurately reflect time
actually worked since they do not account for the idle periods
that are paid (e.g., lunch or awaiting transportation).
Similarly, time paid or scheduled shifts do not reflect pre and
post shift time spent on mine property.
37. The estimated 45 minute component of hourly employee
exposure was determined by surveying a number of experienced and
competent Consol officials who had observed employees at these
Consol mines. The estimate constitutes Consol's best estimate of
actual exposure time before and after scheduled shifts.
38. When the 45 minute estimate is combined with the
scheduled shift time and overtime component, these components
reflect the number of hours that Consol believes each hourly
employee spends at the mine site on a daily basis.
39. MSHA maintains that since March 9, 1978, it has consistently interpreted the language of 30 C.F.R. § 50.30-l(g) (3) to
require the reporting of hours recorded on payroll records or
other time records, such as time clocks, if those records were
available. MSHA also maintains it has consistently allowed the
submission of estimated hours as reportable hours only when
payroll records or other records do not reflect actual hours
worked. Counsel for the Secretary has no knowledge of any citation or order having previously issued for reporting pre and post
shift time on MSHA Form 7000-2. Consol maintains that, among
other things, the documents referred to in Stipulations 40 and 41
evidence inconsistent interpretation of reportable hours.
40. On November 7, 1975, the Mining Enforcement and Safety
Administration issued a memorandum addressing the American
National Standards Institute (ANSI) Z-16.1 (1967) and its role as
"an integral part of a uniform system for developing statistics
by MESA. • • • II
41. MSHA has published a series of., Information Reports
interpreting the provisions of 30 C.F.R. Part 50.
(hereinafter,
called "Guidelines") None of the Guidelines were published in
the Federal Register but they were distributed to mine operators.
From March 1978 until December 1986 the Guidelines contained a
definition of employee hours that provides as follows:
"Employee hours" constitutes the total number
of hours worked by all employees during the
quarter covered.
Include as employees those

1140

ir1 operating, production, maintenance, transportation, mine off ice, supervision and administration. overtime hours are to be
reported on a straight time basis, i.e. actual exposure time only must be reported.
This definition was deleted by the December 1986 Guidelines.
The December 1986 Guidelines, distributed to mine operators
including Consol in January 1987, added a new sentence to the
repetition of 30 C.F.R. § 50.30-l(g) (3):
Do not include time spent on mine property
outside of regularly scheduled shifts, i.e.
bathhouse, parking lot, etc.
42. Prior to the decision in Freeman United Coal, 6 FMSHRC
1577 (1984), Consol and other mine operators reported hours for
hourly employees by reporting hours paid, including idle time and
lunch time, but not pre and post shift exposure time spent on
mine property. Prior to this change in reporting practices
Consol and other operators did not report pre and post shift
injuries since the operators considered them non-occupationally
related. Prior to the change in reporting practices, Consol and
other mine operators reported estimated time for salaried
employees.
43. After the Review Commission's decision in Freeman
United Coal, 6 FMSHRC 1577 (1984), Consol and other operators
initiated reporting of pre and post shift incidents and exposure
time hours on mine property.
44. Consol did not make any inquiry to the Secretary as to
the effect of the Freeman United Coal decision.on the reporting
requirements of 30 C.F.R. § 50.30. The Secretary did not issue
any policy memorandum or other instructions to the industry
regarding the effect of the decision. The Secretary did not make
any inquiry of Consol regarding the effect of the decision. The
Secretary asserts that the Freeman United Coal decision had no
effect upon the reporting requirements of 30 C.F.R. § 50.30 and
thus no inquiries or pronouncements were appropriate.
45. Consol did not inform the Secretary that it had changed
the method by which it determined reportable hours for purposes
of 30 C.F.R. § 50.30-l(g) (3) until MSHA inspectors inquired about
the discrepancy between payroll records and the Form 7000-2s
during the conduct of the audit which resulted in the issuance of
the citations in this case.
46. The Secretary has insufficient knowledge to accept or
deny that the components reported by Consol reflect the actual
time spent by hourly employees on mine property each day. Accordingly, the parties stipulate that, for the dispositlon of

1141

these cases, the Chief Administrative Law Judge can assume that
these components when combined reflect the actual time spent by
hourly employees at the Blacksville No. 1 Mine and the Robinson
Run No. 95 Mine on the days when they are at the mine site.
47.
Consol is a large coal mine operator and generally has
an average history of violations under the Mine Act for a mine
operator of its size.
48. The parties stipulate that, for the disposition of·
these cases, the Chief Administrative Law Judge can find that:
{a) the proposed penalties, while not agreed to by the parties,
will not affect Consol's ability to stay in business; and {b) the
citations were abated in good faith.
The parties are unable to
stipulate as to the degree of negligence, if any, involved in
causing the alleged violations.
However, Consol maintains that the change in its reporting
practice was undertaken consistent with the advice of counsel and
the Secretary has no evidence to the contrary.
49. The Parties agree that the Administrative Law Judge
should take judicial notice of the documents referred to in these
stipulations and include them in the record of this case.
Upon review I have determined that the stipulations submitted by the parties provide an appropriate and adequate basis
upon which to decide this case. Accordingly, the stipulations
_are hereby ACCEPTED.
As set forth above, section 50.30-l(g) (3) requires each
employer under the Mine Act to report total hours worked by all
employees.
The regulation subsequently directs that hours
reported be obtained from payroll or other time records.
Based
upon the record before me, I conclude that MSHA has consistently
interpreted 50.30{g)-1{3) to require reporting of hours recorded
on payroll records or other time records whenever such records
are available. As set forth in the stipulations, MSHA informational guidelines have been changed in certain respects, but not
in a manner crucial to the determination of what constitutes
employee hours worked for reporting purposes (Stipulation 41).
The inclusion as employees of those in operation, maintenance,
etc. was deleted in the 1986 Program Circular (Gov•t. Exh. 1).
Also, a new instruction was adopted in the 1986 Program Circular
telling employers not to include time spent on mine property
outside of regularly scheduled shifts (Gov•t. Exh. 1, p. 15).
However, the instruction to obtain hours worked from payroll or
other time records is the same in the 1978 manual (Gov•t. Exh. 6,
p. 16), the 1980 manual (Gov't. Exh. 7, p. 15) and the 1986
manual (Gov•t. Exh. 1, p. 15). It is this provision which I find
determinative.

1142

I have carefully r~viewed the operator's argument that the
proper construction of the regulations would include in hours
worked, unpaid hours spent on mine property {Operator's brief pp.
8-13). I do not find the operator's representations persuasive
in light of the fact that until 1984 it accepted the Secretary's
views and reported employee hours in the manner prescribed by the
Secretary {Stipulation 43). I recognize that because of the
Commission's decision in Freeman Mining Company, 6 FMSHRC 1577
{July 1984), the operator began to report off-shift on-site
accidents under section 50.20 of the regulations, supra, which it
had not done previously {Stipulation 42). However, I do not
believe the Freeman decision justifies changing the interpretation of section 50.30-l{g) {3) regarding hours worked, when this
is the interpretation the Secretary always has followed.
In this
connection, I bear in mjnd that the Commission has been admonished that deference is due the Secretary's interpretation of
her own regulations. Brock v. Cathedral Bluffs Shale Oil. Co.,
et. al., 796 F.2d 533, 538 (D.c. cir. 1986) ~ Secretarv of Labor
v. Cannelton Industries, 867 F.2d 1432, 1435 {D.C. Cir. 1989).
Secretary of Labor v. Western Fuels-Utah,~~ F.2d ~~ {D.C.
Cir. April 6, 1990). Therefore, the operator's ex parte attempt
to redefine hours worked by adding thereto 45 minutes per shift
cannot be allowed.
A contrary result is not warranted because salaried
workers are treated differently than hourly workers. Section 50.30-l{g) {3) provides that where actual hours are not
available, they may be estimated on the basis of scheduled hours.
The parties agree that salaried employees are paid a predetermined bi-weekly salary based on 5 scheduled shifts per week and
that for purposes of reporting hours under section 50.30-l{g) (3)
the operator adds, and the Secretary accepts, 1.5 hours per shift
{Stipulations 30, 32, 33). The operator asserts that salaried
and hourly employees should be treated the same and that since
the Secretary accepts the operator's estimate of an extra 1.5
hours per shift for reporting of hours of salaried employees
under 50.30-l{g) (3), it should accept the operator's estimate of
45 minutes per shift for hourly employees {Operator's brief pp.
12, 13). This argument cannot be accepted.
It overlooks the
fact that although payroll records for hourly employees may not
be completely accurate insofar as hours worked are concerned
{e.g. lunchtime, pre and post shift times), these records by and
large do reflect the time hourly employees work and are paid,
whereas this is not true of salaried employees. As the operator
itself admits, renumeration of salaried employees is the same
regardless of whether they work 8 hours or 15 hours a day {Operator's brief p. 12, Hearing Tr. 51-54).
In allowing estimates for
salaried employees for whom there are no records of actual hours
worked, section 50.30-l{g) (3) is consistent with general principles. American National Standards Institute (ANSI) A2.2.2.,
p. 10 (1977); 3.2(2), p. 12 (1967). See also Solicitor's
letter dated May 17, 1990.

1143

In light of the foregoing, I find violations existed in the
subject cases.
By no means, however, is this the end of the inquiry
essential to proper consideration and disposition of the matters
presented. The Mine Act requires not only that a finding be made
whether or not a violation existed, but in addition directs that
attention be given to six criteria, including gravity and
negligence, for determining the appropriate amount of penalty to
be assessed. Section llO(i) of the Act, supra. Accordingly, the
nature, character and extent of these violations must be
evaluated.
The subject cases are unusual because appraisal of the
criteria, most particularly gravity, leads to what is in fact the
heart of the dispute between the parties. The Solicitor admits
the violations are not serious, but he does not adequately explain why (Solicitor's brief p. 30, Hearing Tr. pp. 39-41). A
determination of the seriousness of the violations requires
examination of the use to which the hours reported under
§ 50.30-l(g) (3) are put.
The parties agree that the hours
reported under § 50.30-l{g) (3) on Form 7000-2 together with
accidents reportable under § 50.20 on Form 7000-1 are used in the
formula set forth in § 50.1, supra, to arrive at the injury
incidence rate for each mine and mine operator (Stipulation 13).
The parties further agree that insofar as Consol is concerned the
hours reported under § 50.30-l{g) (3) are used only for inclusion
in the formula (Stipulation 15). Despite the Solicitor's representations to the contrary at the oral argument (Hearing Tr. 1720, 66-69), I believe that because of the data fed into it, the
formula in § 50.1 produces an inherently flawed injury incidence
rate. The numerator of the equation consists of accidents reportable whenever they occur on the mine site regardless of when
they happen, i.e. on-shift, pre-shift or post-shift. The denominator of the formula, however, is employee exposure hours which
is equated by the Secretary with the hours worked as reported
under § 50.30 (Stipulations 12, 13; Solicitor's brief pp. 23-25;
Hearing Tr. 16-17). As explained above, the§ 50.30 hours are
paid, on shift hours. Accordingly, the numerator and denominator
are mismatched with the former premised upon place but the latter
predicated upon time and place. The operator's objection to the
product of this formula as skewed data is well-taken (Operator's
brief pp. 22-26).
The parties agree that for 1986-1988 there were only four
off-shift reportable incidents at the two mines involved in these
cases (Stipulation 21). The Solicitor does not specifically
argue the formula should be upheld because these incidents are
de minimis, but his statements seem to imply this (Solicitor's
brief p. 25, footnote 10; Hearing Tr. 15). I am unconvinced
because a three year sampling of only two mines is an

1144

insufficient basis upon which to conclude that the infirmities in
the formula are of no account.
Indeed, the parties have agreed
that the formula is a basis upon which MSHA directs its investigative resources as well as analyzes illness and injury trends
(Stipulation 16).
That the formula is flawed is further demonstrated by the
Solicitor's agreement that I may assume for purposes of deciding
these cases that the 45 minutes added to hours worked by the
operator reflect the time actually spent at the mine by hourly
employees (Stipulation 46).
If therefore, there were mutuality
in the components of the formula, the incidence rate would be
substantially affected, because the addition of 45 minutes would
constitute almost a 9% increase in the denominator of the
formula.
The Solicitor's representation that the injury incidence
rate under the Mine Act is comparable to that under the
Occupational Safety and Health Act, 29 u.s.c. 651 et seq., (hereafter referred to as "OSHA"), must be rejected (Solicitor's brief
pp. 23-25) • The incidence rate under OSHA like that under the
Mine Act is arrived at by dividing the number of injuries by hour
worked. Recordkeeping Guidelines for Occupational Injuries and
Illnesses, Sept. 1986 (Gov't Exh. 3, p. 59).
But the definition
and application of these terms are far different under OSHA than
under the Mine Act. Reportability of accidents under OSHA is not
determined solely by reference to the work site as it is under
the Mine Act. Rather under OSHA there is a rebuttable presumption of reportability applicable to accidents that occur on an
employer's premises, but when the event happens off the premises
reportability is determined by an evaluation of whether the
activities were work related (Gov't Exh. 3, pp. 32, 34-35).
In
addition, events occurring on the parking lot or in recreational
facilities are not reportable under OSHA. The other factor in
the incidence equation, i.e., exposure hours, also is treated
differently under OSHA than the Mine Act. Although employee
hours worked are determined under OSHA initially by reference to
payroll records, the concept is expanded in determining exposure
hours (Gov•t Exh. 3, A-4, p. 54). Thus the OSHA manual directs
that:
The figure for hours worked should reflect the actual hours of work-related exposure for all employees.
If injuries and
illnesses experienced during a particular
activity are recordable, then the employee's
time spent in the activity should be included
in the hours worked estimate. Work-related
exposures include most of the employees'
activities on the employers' premises as well

1145

as situations off premises where the
employees are engaged in job tasks or are
there as a condition of employment.
(Gov't. Exh. 3, A-5, p. 54).
Accordingly, under OSHA there is a correlation between
reportable events and the time during which they occur.
It is
just this correlation which is missing in the § 50.1 formula
under the Mine Act. The Solicitor's assertion that "actual hours
of work-related exposure" applies only to paid time, is unsupported and therefore, rejected (Solicitor's brief p. 24, footnote
9: Hearing Tr. 35-36).
If the Secretary can achieve such correlation and balance
under OSHA, it is difficult to see why she cannot do so under the
Mine Act.
I recognize that Stipulation 46 which agrees that the
45 minutes estimated by the operator accurately reflects time
spent on mine property by hourly employees, has been entered into
only for purposes of these cases. However, as a general matter
composition of a meaningful formula for an injury incidence rate
under the Mine Act would appear to be the Secretary's responsibility, at least in the first instance, rather than the
operator's.
In sum therefore, the only effect of the operator's failure
to report hours worked as defined by the Secr~tary under
§ 50.30-l(g) (3) is that these hours were not included in the
§ 50.1 formula.
Because the formula as presently written and
applied produces flawed data, I find the violations are nonserious and technical in nature.
Indeed, what the violations
highlight is the need for the Secretary to revisit the issues
posed by those sections of the reporting regulations involved
in these cases.
There is no question that after the Freeman decision the
operator intentionally changed its reporting of hours worked
under § 50.30-l(g) (3) by adding 45 minutes to each shift and that
it did not tell the Secretary what it was doing (Stipulations 43,
44 and 45).
As set forth above, I appreciate the dilemma the
operator found itself in because of the flawed incidence rate
formula.
However, this is no excuse for the operator's actions.
Whatever difficulties may be presented by the Secretary's interpretation of the Act and regulations, no operator is free to take
the law into its own hands by deciding for itself what the law
means and how it can best be applied. The egregious nature of
the operator's conduct is augmented by the clandestine nature of
its activities. The operator could have openly challenged the
Secretary's position immediately after the Freeman decision.
Instead, it chose to act in secret until the Secretary found out.
This ~perator which is one of the largest in the mininq industry,
certainly knows better. Accordingly, I find negligence was high.

1146

The other criteria have been stipulc:i..ed. The violations
were abated in a timely manner; prior history is average; size is
large: and imposition of penalties herein will not affect the
operator's ability to continue in business (Stipulations 8, 47,
48).
It is ORDERED that the documentary exhibits (Gov't Exh. 1-8
and Operator's Exh. 1 and 2) be ADMITTED.
It is further ORDERED the operator's motion to strike be
DENIED.
It is further ORDERED that insofar as the existence of
violations and a finding of high negligence are concerned the
Secretary's motion for summary judgment be GRANTED.
It is further ORDERED that a penalty of $100 be ASSESSED for
each of the 24 violations involved in these cases.
It is further ORDERED that the operator PAY $2,400 within 30
days from the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Henry Chajet, Esq., Jackson & Kelly, Consolidation Coal Company,
Suite 650, 1701 Pennsylvania Avenue, N.W., Washington, D. c.
20006 (Certified Mail)
Walter J. Scheller, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified
Mail)
Page H. Jackson, Esq., Office of the Solicitor, u. s. Department
of Labor, Room 516, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Mr. Steven Solomon, UMWA, Box 370, Cassville, WV
(Certified Mail)

26527

Robert Stropp, Esq., UMWA, 900 15th Street, N.W., Washington, DC
20005 (Certified Mail)
Lawrence Beeman, Director, Office of Assessments, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Handcarried)
/gl

1147

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

MAY 301990

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 89-27-M
A.C. No. 15-15676-05511

v.
Staton Mine
MOUNTAIN PARKWAY STONE,
INCORPORATED,
Respondent
DECISION ON REMAND
Before:

Judge Weisberger
STATEMENT OF THE CASE

On May 23, 1990, the Commission issued a decision pursuant
to the Secretary's petition to review my decision in this matter
issued on July 14, 1989. In essence, the Commission found that
Respondent violated 30 C.F.R. § 57.9002 as alleged in a citation
issued by MSHA Inspector Eric Shanholtz on August 17, 1988.
(Mountain Parkway Stone, Inc., 12 FMSHRC, (Slip op., May 23,
1990)). The Commission reversed by decision with respect to the
vacation of the citation in issue, and remanded the matter "·
for determination of the allegation that the violation was of a
significant and substantial nature and for assessment of an
appropriate civil penalty."
(Mountain Parkway Stone, Inc.,
supra, at 4) •
I.

In its decision, the Commission noted Shanholtz's detailed
testimony regarding the numerous equipment defects affecting
safety that prompted his citation.
(Mountain Parkway Stone,
Inc., supra, at 3). It further found that "The evidence that the
C-50 boom truck had defects affecting safety was largely
uncontroverted" (Mountain Parkway stone, Inc., supra, at 3). The
Commission summarized the largely uncontroverted testimony of
Shanholtz with regard to the various defects affecting safety, . ·
and the hazards of these defects as follo~s:

1148

Specifically, the inspector noted that there were no
stabilizing jacks on the truck.
(Stabilizing jacks are
outrigge~s that are used to support a boom truck when
the boom is raised.
Tr. 232.) Without such
stabilizing jacks, the truck could.overturn if it were
"utili'zed in the wrong capacity." Tr. 233. Shanholtz
additionally noted several hydraulic leaks in the boom
controls and in the boom's left cylinder that presented
both fire and slipping hazards and allowed the boom to
drop.
The doors of the truck were missing and the
truck did not have seat belts.
In Shanholtz's opinion,
these conditions presented the hazard of allowing a
driver to fall from the vehicle if it took a sharp
turn.
Shanholtz further observed that the truck did
not have front or rear lights, although it was
apparently used underground.
Finally, Shanholtz noted
that a rag was used as a gas cap on the gas tank.
Shanholtz testified that the rag could act as a wick
for the gas and present an explosion or ignition
hazard.
Tr. 232-34.
(Mountain Parkway Stone, Inc.,
supra, at 2).
Shanholtz opined that the violation herein was significant
and substantial based on his finding that "[t]he likelihood of
something happening was reasonably likely in that if an injury or
fatality would occur, then it would be serious." Tr. 239.
Shanholtz indicated that illness and injury was reasonably likely
to occur because "just accumulation of the defects in themselves
presented a reasonable likelihood of an injury occurring" (sic)
Tr. 238.
He essentially agreed with the counsel for petitioner
that, with regard to each of the dangers he testified to that
were involved in each of the defects he cited, the dangers would
be reasonably likely to occur.
I find, based on Shanholtz's basically uncontradicted
testimony, as noted by the Commission, that with regard to the
defects he noted, which constituted a violation of section
57.9002, supra, there were discrete safety hazards contributed to
by. the violation herein.
(See, Mathies Coal Company, 6 FMSHRC 1,
3 (1984)).
In order for the violation herein to be considered
significant and substantial, it also must be established, as set
forth in Mathies~ supra, at 3-4, that there was "a reasonable
likelihood that the hazard contributed to will result in an
injury." The Commission in Consolidation Coal Company, 6 FMSHRC
189, 193 (1984), explained that this element "embraces a showing
of a reasonable likelihood that the hazard will occur, because,
of course, there can be no injury if it does not."
Although Shanholtz described the hazards involved in each of
the safety defects in question, and concluded that these were
reasonably likely to occur, he did not provide the basis for this
conclusion.
Nor does the record contain sufficient facts to

1149

support this conclusion. Thus, I find that it has not been
established that the hazards involved in the various safety
defects were reasonably likely to occur. As such, it must be
concluded that it has not been established that the violation
herein was significant and substantial (Mathies, supra,
Consolidation Coal, supra).
II.
The testimony of Shanholtz is essentially uncontradicted
with regard to the existence, at the date of the inspection, of
numerous defects in different parts of the truck in question.
Also uncontradicted is Shanholtz•s testimony, as summarized above
(I., infra), with regard to the specific hazards attendant upon
the various safety defects. Also the Commission noted that the
record establishes that the truck had been used while it had the
cited safety defects.
I thus conclude that the violation herein
was of a moderately high level of gravity. Taking into account
the remaining statutory factors set forth in section llO(i) of
the Act, as stipulated to by the parties, as well as the history
of violation as indicated by Exhibit 1, I conclude that a penalty
of $98 is proper for the violation found herein.
ORDER
It is ORDERED that within 30 days of this decision,
Respondent shall pay $98 as a penalty for the violation of
Citation No. 3253338.

L~

Avram Weisberger
Administrative Law Judge
Distribution:

Colleen A. Geraghty, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)
Mr. Jeffery T. Staton, Vice President, Mountain Parkway Stone,
Inc., Route 1, Box 309-B, Stanton, KY 40380 (Certified Mail)
/fb

1150

ADMINISTRATIVE LAW JUDGE ORD~RS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
54!03 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

703-756-6232
May 4, 1990

THOMAS J. MCINTOSH,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. KENT 90-113-D
MSHA Case No. BARB CD 90-06

FLAGET FUELS, INC.,
Respondent

No. 1 Surface

ORDER DENYING RESPONDENT'S REQUEST
TO DISMISS COMPLAINT
Statement of the Case
This proceeding concerns a complaint of discrimination filed
by the complainant against the respondent pursuant to section
105(c) (3) of the Federal Mine Safety and Health Act of 1977. The
complainant alleges that he was discharged by the respondent from
his employment as a bulldozer operator on or about December 8,
1989, because of his refusal to operate a bulldozer he reasonably
and in good faith believed to be unsafe and because he had voiced
safety complaints about said bulldozer to the respondent's
vice-president.
The respondent has filed an answer to the complaint denying
that it discharged the complainant or discriminated against him
in violation of the Act. With regard to the complainant's
jurisdictional pleading at paragraph three (3) of his complaint,
the respondent takes the position that the complaint is untimely
and states that it "specifically controverts jurisdiction of the
Commission for failure to meet the statutorily prescribed filing
deadline." Respondent requests that the complaint be dismissed
with prejudice.
Although the Act provides that a discrimination complaint
must be filed within 30 days after receipt of the Secretary's
written determination that no violation has occurred, and the
Commission's proposed rule changes as published in the Federal
Register on February 12, 1990, 55 Fed. Reg. 4853-4866, will
include the same statutory time limit, under the Commission's
present rules of procedure there is no time limit for filing such
a complaint.
The applicable present rules provide as follows:

1151

§

2700.40

Who may file.

(a) The secretary. A complaint of discharge,
discrimination or interference under section 105(c) of
the Act, 30 u.s.c. § 815(c), shall be filed by the
Secretary after an investigation under section
105(c) (2) of the Act, if he finds that a violation of
section 105(c) (1) of the Act has occurred.
(b) Miner, representative, or applicant for
employment. A complaint of discharge, discrimination
or interference under section 105(c) of the Act, may be
filed by the complaining miner, representative of
miners, or applicant for employment if the Secretary
determines that no violation has occurred.
§

2700.41

When to file.

(a) The Secretary. A complaint of discharge
discrimination or interference shall be filed by the
Secretary within 30 days after his written
determination that a violation has occurred.
(b) Miner, representative, or applicant for
employment. A complaint of discharge, discrimination
or interference under section 105(c) of the Act, may be
filed by the complaining miner, representative of
miners, or applicant for employment if the Secretary
determines that no violation has occurred.
The pleadings reflect that the complainant timely filed his
complaint with MSHA on December 11, 1989. By letter dated
January 26, 1990, and received by the complainant on February 1,
1990, MSHA advised the complainant that based on a review of the
information gathered during its investigation of his complaint,
it concluded that a violation of section 105(c) of the Act had
not occurred. The complainant then filed the instant complaint
with the Commission by letter and enclosure dated March 5, 1990,
and the complaint was docketed on March 9, 1990.·
It has been held that the time limitations found in section
105(c) of the Act are not jurisdictional. see: Christian v.
South Hopkins Coal Company, 1 FMSHRC 126, 134-136 (April 1979);
Bennett v. Kaiser Aluminum & Chemical Corporation, 3 FMSHRC 1539
(June 1981); Secretary v. 4-A Coal Company. Inc., 8 FMSHRc·905
(June, 1986); Buelke v. Thunder Basin Coal Company, 11 FMSHRC 240
(February, 1989).
In the following cases, the Commiss.ion held that the failure
by miners to timely file discrimination complaints for time
periods ranging from 60 days to 7 months after the events
complained of should not be barred, and the complaints"were

1152

permitted. See: Gary M. Bennett v. Kaiser Aluminum & Chemical
Corp., 2 MSHC 424 (1981); Charles J. Frazier v. Morrison-Knudsen,
Inc., 2 MSHC 2057 (1981); Rex Allen v. UNC Mining & Milling,
2 MSHC 2089 (1981); Richard c. Johnston v. Olga Coal Co., 2 MSHC
224 7 ( 198'.IJ .
The respondent makes no claim that it has been prejudiced by
the complainant's slight delay in filing his complaint with the
Commission after receiving notification from MSHA that it did not
intend to pursue his case further, and I cannot conclude that any
such delay has deprived the respondent of a fair and meaningful
opportunity to defend against the claim of alleged
discrimination.
ORDER
In view of the foregoing, the respondent's request to
dismiss the complaint IS DENIED, and this case will be scheduled
for a hearing on the merits in the near future at a time and
place convenient to the parties.

/ij'~/ c:t:~
~rg~'; Koutras
Administrative Law Judge

Distribution:
Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified Mail)
Rick L. Thomas, Esq., Flaget Fuels, Inc., 825 High Street,
Hazard, KY 41701 (Certified Mail)
/fb

1153

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

May 9, 1990

CIVIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AN.D HEALTH
ADMINISTRATION (MSHA),

Docket No. SE 90-2-M
A.C. No. 38-00052-05502 S3N

v.
Langley Plant & Mine
S.L. PETERS CONSTRUCTION, CO.,:
Respondent
ORDER DENYING PROPOSED SETTLEMENT
SHOW CAUSE ORDER
Neither the Motion to Approve Settlement filed
May 7, 1990, nor the attached docwnentation support a finding
that a violation of the cited standard (30 C.F.R. § 56.14104)
in fact did occur. In addition the Secretary's Accident
Investigation Report concludes that "(t]here were no
violations of 30 C.F.R., Regulations and standards applicable
to metal and nonmetal mining and milling operations in
reference to welding on inflated tire/run assemblies."
Wherefore the Motion to Approve Settlement -is de
The Secretary is hereby ordered to how cause on or b
Proceeding shoul
May 25, 1990, why this.Civil Penal
dismissed. See Co-o Minin
FMSHRC 3475 (1980

jlµ
a/tive Law Judge
16261
Distribution:
Stephen J. Simko, Jr., Esq., U.S.
of the Solicitor, 1371 Peachtree S
30367 (Certified Mail)

partment of Labor, Office
eet, N.E., Atlanta, GA

J. Carroll Bryant, Esq., P.O. Drawer 496, Aiken, SC
(Certified Mail)
nt

1154

29802

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

May 11, 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

..

v.

Docket No. WEST 89-427
A.C. No. 42-01944-03502 B70
Cottonwood Mine

OTIS ELEVATOR COMPANY,
Respondent
ORDER
This order addresses petitioner's motion to compel discovery
on the grounds that respondent's responses to her requests were
evasive, incomplete and unresponsive. Respondent has filed in
opposition to petitioner's motion.
The issues presented are as follows:
I

Request for Admission No. 4: Please admit
that said electrician Billy Syddall on or about
February 9, 1989, was employed by Otis Elevator
Company to test, maintain, repair and trouble
shoot the elevator system located at the Cottonwood Mine, Emery County, Utah operated by Utah
Power and Light Company.
Response: Respondent denies that Billy
Syddall was an electrician. Respondent does
not know what petitioner means by the term
"employed" as it is used in this admission
request. On February 8, 1989, Mr. Syddall
found that unqualified persons including
MSHA inspectors and mine electricians were
operating the elevators in an unsafe manner.
Respondent believes no elevator work was
performed on February 9, 1989.
Discussion
In Request for Admission No. 1, Otis admitted that Billy
Syddall was an "employee" of Otis but Otis now claims Syddall
was not "employed" in the mine on February 9, 1989.
In view of these assertions Otis should either admit or deny
request for admission No. 4.

1155

The judge recognizes that the requests herein do not establish that Syddall was an "electrician". However, Otis' present
response is inadequate.
Accordingly, petitioner's motion to compel is granted and
respondent is ordered to answer Request for Admission No. 4
within 20 days of the date of this order.
II
Request for Admission No. 5: Please
admit that on or about February 9, 1989,
that said Billy Syddall, an employee of
Otis Elevator Company, was not a "qualified person" as that term is defined at
30 C.F.R. § 77.103.
Response: Respond admits that Mr. Syddall
does not carry a green mine electrician's
card and nor has he taken any tests administered for mine electricians. Mr. Syddall
is a highly qualified elevator mechanic
and has completed all requirements to be a
journeyman mechanic.
Discussion
The cited regulation, section 77.103, is an extensive
regulation setting forth in what manner an individual can be a
"qualified person."
The answer of respondent is not responsive. Respondent can
either admit or deny that Billy Syddall is a qualified person.
Since the request for admission refers to 30 C.F.R. § 77.103,
respondent can cite the particular portion of the regulation
respondent relies on in support of its position.
In its response Otis states that petitioner's request No. 5
is improper because it calls for an admission of law and not fact.
However, Rule 33, F.R.C.P., in many instances has allowed such
interrogatories as they serve a useful purpose of narrowing-the
issues. Wright and Miller § 2167.
Accordingly, petitioner's motion to compel is granted and
respondent is ordered to answer request for admission No. 5
within 20 days of the date of this order.

1156

III
Request for Production No. 2: Please produce for the period of February 9, 1988, to
February 9, 1989, any and all service logs,
work orders, time cards, repair and maintenance orders complied by Billy Syddall
and performed at the Cottonwood Mine, Emery
County, Utah operated by the Utah Power and
Light Company on the elevator system at that
mine.
Response: Respondent objects to this request
on the grounds that it is ambiguous, overly
broad, and seeks documents for a period of
time which is not relevant to the issues in
controversy. The only issue in this case
concerns the events related in the citation.
To the extent the request goes further it is
in the nature of a fishing expedition. Beyond
that, it seeks documents which may be the
private property of Mr. Syddall.
Discussion
Citation No. 3416117 herein alleges electrician Billy
Syddall was not qualified person. Further, his duties required
testing and trouble shooting the elevator system. The citation
was issued on February 9, 1989.
Petitioner's request of documents for a year prior to the
date of the citation is reasonably calculated to lead to admissible evidence. The period of time for which the documents
are sought is reasonable.
I am unable to see how service logs, worK orders, time
cards, repair and maintenance orders could be the private
property of any employee.
The relevancy of the information sought is apparent.
Namely, did an unqualified person perform duties at the mine.
The records sought also seem to be normal records maintained
in the course of any business involving a maintenance contract.

1157

Otis states it is prepared to defend against allegations
the regulation was violated on February 9, 1989, but it objects
to the Secretary's "fishing expedition."· As indicated above,
the evidence sought may be relevant to establish a violation on
February 9, 1989.
Accordingly, petitioner's motion to compel is granted and
respondent is ordered to produce the documents requested in
Request No. 2 within 20 days of the date of this order.

Law Judge

Distribution:
Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294

w. Scott Railton, Esq., Reed, Smith, Shaw & Mcclay, Otis Elevator
Company, 1200 18th Street, N.W., Washington, D.C. 20036
/ot

1158

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

703-756-6232
May 21 ;' 1990

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

CIVIL PENALTY PROCEEDING
Docket No. SE 90-1
A.C. No. 40-02701-03532

v.
Goforth Mine
FAITH COAL COMPANY,
Respondent
ORDER DENYING REQUEST FOR CONTINUANCE OF HEARING
on May 18, 1990, the petitioner's counsel called my office
and left a message requesting a continuance of the hearing
scheduled in this matter in Chattanooga, Tennessee on June 7,
1990. The stated reason for the request is that counsel has to
be available in another matter for depositions on June 7, 1990,
and he seeks a rescheduling of the hearing to later in June or
July, 1990.
The notice of hearing in this matter was mailed to the
parties on March 30, 1990, and I assume that the referenced
depositions were scheduled after that date.
In any event, in
this case, the petitioner is seeking a $54 civil penalty
assessment foT the alleged failure by the respondent to submit
certain valid respirable dust samples. The respondent contends
that the samples were taken and timely mailed. The issues do not
appear to be complex, and I see no reason why the Regional
Solicitor cannot assign this case to another attorney for trial.
Further, I see no reason why counsel of record in this case
cannot reschedule the depositions for another time.
The presiding judge's trial docket is full through the month
of August, 1990, and taking into account other case assignments,
this case would not be tried until the fall if it were to be
continued.
I simply cannot conclude that such a delay is
warranted.
In view of the foregoing, the request for a continuance IS
DENIED, and the hearing will proceed as scheduled.

b.d~i::~-.
Administrative Law Judge

1159

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

· MAY 3 1:1990
DISCRIMINATION PROCEEDING

ARNOLD SHARP,
Complainant

v.

Docket No. KENT 89-147-D

BIG ELK CREEK COAL COMPANY,
Respondent

PIKE CD 89-08

DECISION AND ORDER REINSTATING STAY
Appearances:

Before:

Arnold Sharp, Bulan, Kentucky, pro ~~
Edwin s. Hopson, Esq., Wyatt, Tarrant & Combs,
Louisville, Kentucky for Respondent.

Judge Melick

This Discrimination Proceeding under Section 105(c)(3)
of the Federal Mine Safety and Health Act of 1977, is before
me following interlocutory review by the Commission remanding
the case on May 2, 1990, for evidentiary proceedings to
determine whether the Respondent's Motion for Stay should be
reinstated. The history of these proceedings, as
summarized by the Commission, is set forth below:
The record developed to date indicates that,
subsequent to this February 28, 1989, discharge,
Sharp appeared and testified before a Commonwealth
of Kentucky Department of Employment Services
referee in an effort to secure unemployment
compensation. Respondent's Administrative
Director, Jim Mees~, also testified at this hearing.
Because Sharp believed Meese's testimony at that
hearing to be false, he caused a criminal complaint
and arrest warrant to be issued against Meese.
Accordingly, on September 13, 1989, Respondent
moved for a postponement of the instant action,
asserting that Meese, the principal and likely only
witness for Respondent in the Mine Act
discrimination proceeding pending before the
administrative law judge, intended to assert his
Fifth Amendment privilege against
self-incrimination "prevent[ing] him from
testifying further as to the matters surrounding
the criminal case and any collateral civil matter."
Motion for Postponement at 2.

1160

Sharp filed his opposition to the motion for
postponement arguing that the criminal matter has
no bearing upon the discrimination matter. Sharp
requested that the then scheduled hearing before
the adrclinistrative law judge go forward.
The respondent filed a reply asserting:
••• The subject matter before the
unemployment hearing factually mirrors
the instant proceeding. Should Mr. Meese
testify in the hearing scheduled in this
discrimination proceeding before the
Federal Mine Safety and Health Review
Commission relative to the facts
surrounding Complainant's discharge, he
would waive his Fifth Amendment privilege
against self-incrimination.
In Re:
Atterbury, 316 F.2d 106, 109 (6th Cir.
1963); Anderson v. Commonwealth, Ky.
App • , 5 5 4 S • W. 2 d 8 8 2 , 8 8 4 ( 19 7 7 ) •
On September 20, 1989, the judge issued an
Order of Continuance and Stay Order:
I find upon consideration of the
circumstances that the Motion for
Continuance is well-founded and that it
would be in the best interests of this
litigation to grant a brief continuance
and stay in these proceedings pending
disposition of the noted criminal
proceedings. This is particularly true
in this case since the criminal charges
involve a claim that a witness apparently
essential to this case gave a false
statement in a related proceeding and
that criminal case is already scheduled
for trial in the near future.
Order at

3.
Thereafter, on January 5, 1990, the criminal
charge against Meese was dismissed.
However, on
January 22, 1990, the dismissal was appealed and
the criminal action remains pendirig.
Noting these
occurrences and over the objectioris of Sharp, the
administrative law judge issued a second stay order
on February 2, 1990, pending" ••• final disposition
of the noted criminal proceedings ••• " Order at 1.

1161

The evidence adduced at subsequent expedited hearings in
London,. Kentucky confirms the undisputed representations by
counsel for Respondent in connection with his motions for
continuance. Mr. Sharp in his complaint herein alleges
discharge and discrimination in violation of section
105Cc}(l} of the Federal Mine Safety and Health Act of 1977
(Mine Act) in retaliation for his previously successful Mine
Act litigation against the Respondent. Among the acts of
alleged unlawful harassment and retaliation and claimed
evidence of ill-will toward him are 12 instances of purported
false statements by Respondent's administrative director,
James Meese.
In particular, and of special relevance to this
proceeding, Sharp alludes to four allegations of false
swearing by Mr. Meese before the Commonwealth of Kentucky
Unemployment Insurance Commission with respect to:
Cl) the
filing of a worker's compensation claim, (2) investigation of
the accident giving rise to the alleged filing of the
worker's compensation claim, (3) the number of days off
experienced by Arnold Sharp, and (4) the firing by the
company employing the defendant of Ralph Patrick.
(See
Statement of Appeal, page 6-Respondent's Motion Exhibit No.
1)•

The record shows that on August 11, 1989, Arnold Sharp
also initiated a criminal complaint in the Kentucky courts
against Meese by charging that on June 12, 1989, Meese
"unlawfully made a false statement while under oath co the
Commonwealth of Kentucky unemployment division". An arrest
warrant was thereafter issued to Mr. Meese charging him with
the offense of "false swearing" under KRS 523.040._:./
These charges were subsequently dismissed at a
preliminary hearing before a judge of the Perry County
District Court and the Perry County attorney thereafter
appealed that dismissal to the P,erry County Circuit Court.

=/

KRS

(Kentucky Revised Statutes) 523.040 provides as

follows:
False Swearing. - Cl> A person is g·ui 1 ty of false
suearing when he makes a false statement which he
does not believe under oath required or authorized
by law.
( 2 > false swearing is a class B
misdemeanor.
The crime of false swearing under Kentucky law is
distinguished from perjury in that the false statement need
not be material to prove the offense.See Commonwealth v.
Thurman, 691 s.w. 2d 213 (Kentucky, 1985)~

1162

While the initial criminal charging documents do not set
forth any specific acts of "false swearing", the Commonwealth
Attorney in his brief on appeal, specified four acts of
"false swearing" which had been identified to him by
Mr. Sharp.
They were purportedly made at a hearing before
the Kentucky Unemployment Insurance Commission as follows:
Cl) The filing of a worker's compensation claim, (2)
investigation of the accident giving rise to the alleged
filing of the worker's compensation claim, (3) the number of
days off experienced by Arnold Sharp, (4) the firing by the
company employing the defendant of Ralph Patrick (Statement
of Appeal at page 6 - Respondent's Motion Exhibit No. 1).
These alleged acts of "false swearing" are identical to
four of the twelve charges of false testimony alleged by
Sharp to be evidence of harassment, ill-will, and
discrimination as well as evidence of an unlawful discharge
under Section 105(c) of the Mine Act in this case. Such
evidence would therefore be relevant and admissible in these
proceedings. Mr. Sharp continues to assert that this
evidence is essential to his discrimination case herein. At
the hearing Sharp stated "all the issues are going to be
brung [sic] up in the case because that's what they say they
fired me on which he outright lied."
(Tr. 32)
At the evidentiary hearing, counsel for Respondent, as
he previously stated in connection with his motions for
continuance, again stated that James Meese would be an
essential witness and probably the only witness, for the
defense against Sharp's allegations. On this issue the
following colloquy occurred at the hearing:
The Court:

*** What is the essence of your defense?

Mr. Hopson: Are you asking'what are the facts that we
intend to prove or who we would prove-'"

The Court:

Yes, what are the facts you intend to prove.

Mr. Hopson: We intend to prove t~~t Mr.~s~arp under the
absentee policy had incurred sufficient disC-ipline,
had been put on notice that his job was in
jeopardy-The Court:

For what?

Mr. Hopson:
For absenteeism. And had gotten to the
point where he was on probation for absenteeism
when he incurred a very suspicious injury for which

1163

we sought a medical release in order to obtain
medical information. He flat refused to supply
that release. We were unable to get further
medical information and as a result of that virtual
insubordination, as well as his overall poor
attendance record, he was terminated. Now, Mr.
Meese is the only witness that has knowledge of
those facts.
He's the only one we have that can
testify to those facts.
The Court: Why is that? What is his position?
What are his duties and responsibilities in
relation to these charges?
Mr. Hopson:
He is director of administration for this
company which at the time of Mr. Sharp's discharge
had only 80 employees. It's not a big company. he
had personnel function as well as various other
administrative duties.
The Court: And it was his action and his determinations
that led to Mr. Sharp's discharge?
Mr. Hopson: That's correct. He tracked the
absenteeism. He, in fact, wrote Mr. Sharp the
warnings, he wrote Mr. Sharp the discharge letter.
(Tr. 14-16)
In addition Mr. Meese testified at the hearing that in
his capacity as administrative director of Respondent, Big
Elk Creek Coal Company, he oversees the administrative and
personnel functions for the company. He testified that he
alone was responsible for tracking employee attendance and
absenteeism including Mr. Sharp's. He was the only company
witness at the cited unemployment proceeding and the only
person knowing the "full scope" of the case.
In addition
Meese was the person who made the final decision to discharge
Sharp and purportedly is the only person with firsthand
knowledge of all the reasons for Sharp's discharge.
The relationship between the criminal charges against
Meese and the testimony needed from Meese in the defense of
this case was further explored in the following colloquy:
(by Mr. Hopson] Mr. Meese, I'd like you to
turn now to a document in the Exhibit which is

1164

marked-as Respondent's Exhibit 1 to this motion
which is a document toward the end of the Exhibit
some 10 to 15 pages from the end of the Exhibit
called, Statement of Appeal and it's tendered by the
Perry County Attorney. Do you see that? If you
would, turn to page six of that document.
In the
first document.
In the first full paragraph of
that document there are four items listed
pertaining to the false swearing allegations:
(a)
the filing of a workers' compensation claim; Cb)
investigation of the accident giving rise to the
alleged filing of the worker's compensation claim;
Cc) the number of days off experienced by Arnold
Sharp; Cd) the firing by the company employing the
Defendant of Ralph Patrick. My question, Mr.
Meese, is did the investigation of the accident
giving rise to the alleged filing of the workers'
compensation claim involve you? Did you do it?
[Mr. Meese] Yes.
Is that involved in your review of the facts which
led to Mr. Sharp's termination?
(Mr. Meese] Yes.
And (c), the number of days off experienced by
Arnold Sharp, did the number of days off
experienced by Mr. Sharp play any part in the
decision to terminate him?
(Mr. Meese] Yes.
And (d) the firing by the company employing
Defendant and Ralph Patrick, did the question of
whether Mr. Patrick was fired or he quit an issue
or is it an issue in the discrimination case which
is before the Commission in some way?
I'm not sure--could it be an issue?
Yes.
I'm not sure I follow the question.
Was there any question in the unemployment proceeding
raised regarding unfair treatment of Mr. Sharp and
whether he was singled out?
I don't recall.

1165

The Court:

Was Mr. Patrick, he was apparently fired?

Mr. Hopson: Your Honor, that's an issue in the criminal
case. The contention by Mr. Sharp is that he quit. I
believe the testimony in the unemployment case was that
he was fired and it's related to I believe absenteeism
or something. And that is one of the things that Mr.
Meese is now charged with in the criminal case.
The Court:. Was testifying allegedly falsely in the
unemployment compensation proceeding about the
basis for Mr. Patrick's separation from the
company?
Mr. Hopson:

That's correct.

The Court: It is maintained by Mr. Sharp that this case
was not the same as his case?
Mr. Hopson:

That is my understanding.

The Court: And the company apparently took the position
that it was the same?
Mr. Hopson:

That's my understanding, Your Honor.

The Court: I see. It would be evidence according to
Mr. Sharp that he was treated differently than this
other gentleman for similar circumstances?
Mr. Hopson:

I believe that's correct.

The Court:

All right.

Mr. Meese, if I ask you questions regarding the
basis for Mr. Sharp's termination and the events which
led up to that and your investigation of all that in a
discrimination proceeding before the Commission before
this criminal case is resolved, what would your response
be?
·

Q33

A I've been advised by counsel to plead the Fifth
Amendment, my Firth Amendrilent right, until this criminal
matter is cleared, up. CTr. 41-44)
This testimony is not disputed. It is apparent
therefore that the factual evidence giving rise to both
Sharp's allegations of Section 105Cc) violations and the
allegations of criminal "false swearing" initiated by Sharp

li66

before the Kentucky Criminal Courts are intertwined and in
significant respects, identical.
It may also reasonably be
inferred from his testimony that Meese would decline in these
proceedings to answer any questions relating to the criminal
charges now pending before the Kentucky courts and that he
would assert his privilege against self incrimination under
the Fifth Amendment to the United States Constitution.
The Fifth Amendment provides that "[n]o person ••• shall
be compelled in any criminal case to be a witness against
himself ••• 11 U.S. Const. Amend. V. It is well-established
that this privilege is applicable to administrative
proceedings. Murphy v. Waterfront Commission of New York
Harbor, 378 U.S. 52 (1964); Roach v. NTSB, 804 F.2d 1147
(10th Cir. 1986) cert. denied 108 S. Ct. 1732 (1988). In
order to sustain the privilege the trial judge need only
determine that the implications of the question posed or the
evidence demanded, considered in the setting in which it
arises, might lead to injurious disclosures. Only if the
incriminating effects are not evident is it proper to require
some explanation from the witness of his fear of
incrimination. Hoffman v. U.S., 341 U.S. 479, 486-87 (1950).
Obviously it would defeat the purpose of the privilege to
require the witness to disclose in explanation of the fear of
prosecution the very facts about which he or she is entitled
to keep silent, so the scope of the privilege is quite broad.
Hoffman, supra at page 488. Specifically, the witness cannot
be compelled to produce testimony which could involve the
direct disclosure of guilt for past acts. Glickstein v.
U.S., 222 U.S. 139 (1911).
.
The determination of whether the assertion of the Fifth
Amendment privilege is proper ordinarily arises during trial
and in fact can only, in the final analysis, be determined
on a question-by-question basis. Here the issue arises in
the context of a request for a stay pending final resolution
of criminal charges against a key defense witness for "false
swearing".
On the basis of the undisputed record herein it
is clear that in.order to defend itself from the charges of
discrimination under Section 105Cc) of the Act the Respondent
corporation will necessarily have to call James Meese as a
witness.
Indeed Respondent c9ncedes that without Meese, it
likely could not defend itself an~ would have to sustain a
decision by default.
It is also clear from the undisputed record that
questions relevant and material to this. cas.e ..would likely be
posed·to t"lr. Meese at any trial on the merits and· that the

1167

potentially incriminating effects of such questions would be
obvious.
Hoffman, supra.
It would therefore defeat the
purpose of the privilege to require Mr. Meese to make further
disclosure in explanation of his fear of prosecution.
In U.S. v. Wilcox, 450 F.2d 1131 (5th Cir., 1971) the
Court stated, in an analagous situation, as follows:
And so when a witness is asked a question that
could show that he had already committed a crime
i.e., perjury at a prior trial, his refusal to
answer is permissible almost by the definition of
self-incrimination. He is still criminally
accountable for his perjury, but he may not be
convicted out of his own mouth over his claim of
privilege. ·rhus the aphorism that one cannot take
the Fifth Amendment on the ground that if he
testifies he will perjure himself applies only as
an excuse for not testifying initially.
It does
not mean that having once testified, the Fifth
Amendment is not available to avoid giving further
testimony which might expose the witness to
substantial risk of prosecutions growing out of the
prior testimony.
See also U.S. v. Prior, 381 F. Supp. 870 (1974).
Thus it is clear that if trial on the merits of this
case would proceed now before final disposition of the
criminal charges against Mr. Meese, Meese would assert his
privilege in response to material questions and the mine
operator would be unable to fairly defend itself. There is
accordingly a conflict between the interest of the
Complainant in a prompt trial of his 105(c) complaint and the
corporate mine operator's right to defend itself. Faced with
a similar conflict the U.S. Court bf Appeals, Federal Circuit
in Afro-Lecon, Inc. v. U.S., 820 F.2d 1198 (Fed. Cir. 1987),
applied a balancing test for determining whether a stay of
the civil proceedings should be granted.~

2; See also U.S. v. Kordel, 397 U.S. 1 (1970); K.J.F.
Fabrics, Inc. v. U.S., 651 F. Supp. 1437 (Ct. Int. Trade
1986); Paul Harrigan-and Sons, Inc. v. Enterprise Animal Oil
Co., 14 F.R.D. 333 (E.D. Pa. 1953); and U.S. v. U.S.
currency, 626 F.2d 11 (6th Cir. 1980) in support of the
proposition that a stay of a civil action in favor of a
related criminal proceeding is appropriate when a
corporation's employees are unable to testify in the civil
proceeding because they have been charged in a related
criminal action.

1168

In Afro-Lecon, the General Services Administration Board
of Contract Appeals had refused the corporation's motion for
a stay of the civil appeal and required the corporation to
respond to its order to compel discovery from the corporation.
The corporation had sought a stay because its key witnesses
such as officers, former employees, and consultants were
advised by counsel not to participate in responding to the
Board's order on the basis of their Fifth Amendment rights
against self-incrimination. The Board, in its decision
denying stay, had noted that the refusal of crucial witnesses
of the corporation to testify made it impossible for the
corporation to comply with the Board's previous order.
While noting that the Constitution does not require a
stay of civil proceedings pending the outcome of criminal
proceedings, the Court held that the Board should balance the
interest of the corporation in a stay against the possible
prejudice to the appellee arising from the potential loss of
important evidence because of the stay. The Court noted that
the corporation's interest in the stay was strong since its
officers and employees claimed the Fifth Amendment. The
court in Afro-Lecon, remanded to the Board for a
determination of whether the corporation's plant manager
could properly claim a real and appreciable risk of
self-incrimination.
Similarly, the Commission has remanded this proceeding
for a determination of the propriety of Meese's Fifth
Amendment claim. As I have already found, Meese's risk of
self-incrimination in this case is clear as is the likelihood
of his assertion of the privilege at any trial on the merits.
In applying the Af ro-Lecon balancing test to the present
case, it is clear that a further stay is warranted. As in
Afro-Lecon, the corporation herein has a strong interest in
staying this action until Meese's criminal charges are
resolved and he is available to testify.
Without Meese's
testimony, it would be deprived of its right to have a
m~aningful opportunity to defend itself.
In balancing Sharp's interest in avoiding delay arising
from a stay of this action I conclude that the Fifth
&nendment privilege and the corporation's right to defend
itself should take precedence. See Vardi Trading Co. v.
Overseas Diamond Corp., 1987 U.S. Dist. LEXIS 8580, slip op.
at 4 CS.D.N.Y. 1987) (Attached hereto as Appendix A). There
is not even a suggestion that evidence would be lost as a

1169

result of any delay. Moreover since Sharp and Meese appear
to be the only material witnesses in this action, since
similar evidence appears to have been preserved in
transcripts from other proceedings and in other written
records and since the criminal proceeding will likely entail
many of the same factual issues, it is unlikely that any
evidence would be lost.
In addition, the recrod shows that Sharp has already
collected unemployment benefits for at least a portion of the
period of lost wages since his discharge and, if successful
in this proceeding, would be entitled, with certain
exclusions, to backpay with interest.
It may also reasonably
be inf erred that Respondent would in any event appeal any
adverse decision thereby delaying any final disposition.
It is also~significant to note in this.case that it is Sharp
who has initiated and pursued the criminal,action giving rise
to the delay herein. It would be particularly inequitable
therefore to permit him to now proceed in this action while
the operator cannot defend itself.
Accordingly the Stay Order previously issued in this
case is hereby reinstated to remain in effect until such time
as the criminal charges pending against James Meese (Case No.
90-X-001 in the Perry County Circuit Court Commonwealth of
Kentucky} have become final.
There are also other compelling reasons for not
immediately proceeding to trial in this case but to await
final resolution of the criminal charges. Conviction of the
mine operator's key witness for "false swearing" could
provide significant evidence demonstrating lack of
credibility. Rule 609, Federal Rules of Evidence; 33 Fed.
Proc. L. Ed. Witnesses §§ 80:105 - 80:118.
Indeed in some
jurisdictions conviction of such an offense is so devastating
to witness credibility that the witness is completely barred
from even giving testimony under oath.
It is my judgment that such evidence is so potentially
critical and significant to this case in light of the
singular importance of the testimony of ·Mr. Meese, that trial
on the merits of this case should in any event not proceed
until final resolution of those criminal charges. As the
Commission has often stated, one of the important functions
of the administrative law judge is the assessment of witness
credibility. See~' Robinette v. United Castle Coal Co.,
3 FMSHRC 803 (1981); Secretary o.b.o. Bush v. Union Carbide
Corp., 5 FMSHRC 993 (1983); Bjes v. Consolidation Coal Co., 6
FMSHRC 1411 (1984).
It is therefore important that the
trial judge independently exercise that judgment and properly
consider that factor in regulating the course of the hearing.

1170

For. this additional and independent reason
Order must be reinstated.

1\,.J(l
.":i

Gari~Melick
Admi'.rHstrative
<70~~: 756-626.1

aw Judge

\j:..

Distribution:

.•

Mr. Arnold Sharp, General Deliyery·, Bulan, KY
(Certified Mail)

41722

Edwin s. Hopson, Esq., Wyatt, Tarrant & Combs, Citizens
Plaza, Louisville, KY 40202 (Certified Mail)
nt

1171

' Services of Mead Data Central

l'.PPENDIX A

PAGE

2

14TH CASE of Level 1 printed in FULL format.

Vardl Trading Company, Plaintiff, v.·Overseas Diamond
Corporation and Harold Arvtv, ·individually, Defendants
No. BS Civ.~2240 (CSH)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK
1987 U.S. Dist. LEXIS 8580
September 22, 1987, Decided; September 23, 19B7, filed

OPlNlONBY:

t•1J

HAIGHT

OPINION:
MEMORANDUM OPINION AND ORDER
HAIGHT, District Judge:
In this civil action based upon diversity of citizenship n1 deferidants moved
for an order staying the proceedings until the resolution of criminal charges
pending against them in Florida arising out of the same or related commercial
transactions. Plaintiff opposed the stay, and subsequently moved for summary
judgment pursuant to Rule 56 F.R.Civ.P. Defendants contend that the prayed-for
stay should embrace plaintiff 1 s summary judgment motion.
n1 According to the pleadings, plaintiff Vardi Trading Company is a New York
partnership maintaining its principal place of business in New York City.
Defendant overseas Diamond Corporation is a for~ign corporation, maintaining its
principal place of business in Miami, Florida. Defendant Harold Arviv is a
citizen and resident of Toronto~ Canada.
Far the reasons which fallow, 1 grant defendant 1 s motion for a sta.v of these
·civil proceedings, and deny plaintiff's motion for summary judgment without
prejudice ta subsequent renewal.
I.

Plaintiff alleges that at the pertinent times it was engaged in business as
an importer and wholesale distributor of precious gems: Complaint! para.
C*Zl
5. The complaint further alleges that "heretofore and prior to April 12,
1983" plaintiff sold quantities of rubies and sapphires to the corporate
defendant, Overseas Diamond Corporation. Id., paras. 7, 8. The individual
defendant, Harald Arviv, ts alleged to be the principal of Overseas, and the
guarantor of 90 promissory notes executed by Overseas in favor of pla1ntif~ to
pay for the gems. Id., paras. 7, 12, 21.
Plaintiff's motion for summary judgment, filed and served subsequent to
defendant's motion for a stay, proceeds on the theory that plaintiff delivered
the contracted-for gems to Overseas and has not been paid far them. Summary
judgment ts sought agains~ overseas on the promissory notes, and against Arv1v
on h1s guarantees.
1172

•rvices of Mead Data Central

PAGE

3

1987 U.S. Dist. LEXIS 8580~ *2

q'his civil action was commenct:!d on March 11, 1985.
1 0n September 21
1 1984 the State Attorney far Broward County, Florida filed in
the Circuit Court for the Seventeenth Judicial Circuit of Florida a criminal
information n2 aQainst.a number of entities and individuals. The defendants
include Overseas- and Arvi v. In essence the defendants are charged with
participating in a racketeering enterprise and over-arching fraudulent scheme
·referred to as "The C*3l Gemstone Enterprise." Arviv is charged with
incorporating Overseas "for the purpose of supplying inferior grade gemstones"
to the victims of a "boiler room" operation. The information alleges that Arviv
incorporated Overseas for that illi~it purpose an or about September 19, 1980.
The information further alleges that 0 beginning an or about December 1, 1980 and
continuing an or about May 31, 1983, HAROLD ARVIV and RICHARD PRICE did supply
inferior grade gemstones through OVERSEAS DIAMOND CORP." to victims of the
scheme. Information No. 84-10703 CFA at p. 49.

n2 So styled in the copy attached to the motion papers. Defendants call the
charging instrument an 11 indictment. 11

Defendants contend, and plaintiff does not appear to dispute, that gems sold
to overseas constitute a portion of the gems which overseas and
Arviv are accused of utilizing in violation of the Florida criminal statutes.
by plaintiff

Arviv has given a deposition in the case at bar. However, when the
questioning focused upon the true value of the gems overseas purchased from
plaintiff, Arviv asserted his fifth amendment privilege.
In these circumstances, defendants move for a stay of this litigation pending
resolution [*4l
of the criminal charges in Flarida 1 and plaintiff moves for
summary judgment on the promissory notes and guarantees given to secure payment
for the gems it sold to Overseas.
II.
It is apparent that the true value of the gems sold by plaintiff to
defendants is a central issue in both the criminal and civil cases. To convict
defendants on the_ criminal charges, the prosecution must presumably prove that
-defendants knowingly and willfully sold inferior grade gemstones" to third
parties at prices in excess of their true value. On the other hand, in the civil
.case defendants would presumably defeat plaintiff 1 s·c1aim far the purcha~e price
.in the sale from plaintiff to Overseas 1f the proof demonstrated that the gems
.were of a quality inferior to that contemplated by the contract.
11

In any event, the issue of valuation is sufficiently intertwined arnong the
.two cases to entitle defendants to a stay Of the c1v11 proce~dinos.
Defendants are simply not in a position to make factual averments wi~h respect.
to the ~ems' value while the criminal charges against them are pendin9. Arviv'~
reliance upon the fifth amendment during a deposition taken on October 8,
1985, during the pendency of the criminal (•5J
information, was justified.
The same principle extends to defendant's resistance to plaintiff's motion for
summary judgment. During the pendency of the criminal charges defendants cannot,
·consistent with their c-onstitutional privilege, be required to say anything on
the key issue of valuation. The fifth amendment is a privileqe of broad
application •. ~It can be asserted in an1 proceeding, civil o~crimtnal,
administrative or judicial, investigatory or adJUdicatory; and i t protects
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1987 U.S. Dist. LEXIS 8580 1 •5

PAGE

4

against any disclosures that the witness reasonably believes could be used in a
criminal orosecution or could lead to other evidence that m1qht be so used."
Kastigar v. United States, 406 U.S. 441, 444, 45 (1972> <footnotes omitted) •.

·A stay of these civil proceedings constitutes a·necessary and hence
appropriate safeguard of defendants• fifth amendment privilege. Defendants
~annot, consistent with that privilege, be compelled to choose between waiving
·it, or suffering the practical equivalent of a judgment by default in the
civil case. 1 appreciate that the stay will result in inconvenience and
delay to the plain ti ff, but under settled authority tt1e. fifth amendment
privilege takes precedence. See, t•6l
e.g., Diemstag v. Bransen, 49 F.R.D.
327, 328 CS.D.N. Y. 1970>. The cases cited by plaintiff are factually inappasi te.
Conclusion
For the foregoing reasons, -and in the exercise of my discretion, I grant
defendant's motion for a stay of all proceedings in the case at bar, inc1u9ing
further discovery and resolution of plaintiff's motion for summary judgment,
pending trial or other disposition of the criminal charges in Florida.
Plaintiff's motion for summary judgment is accordingly denied on the present
record, without ~rejudice ta renewal when the basis for the stay no longer
exists.
:
Defendants' counsel are directed to advise the Court and plaintiff's counsel
by letter every three months, beginning an November 1, 1987, with respect to the
status of the criminal proceedings against defendants 1n Florida.
·
In the interim, the Clerk of the Court is directed to place this case upon
the Suspense Oock~t.
It is Sa Ordered.

1174