OCTOBER 1990
co~~IISSION

DECISIONS

10-19-90
10-30-90

Emery Mining Corp. & Utah Power & Light Co.
Medusa Cement Company/Medusa Corporation

WEST 87-130-R
SE
89-109-M

Pg. 1911
Pg. 1913

ADMINISTRATIVE LAW JUDGE DECISIONS
10-04-90
10-04-90
10-10-90
10-10-90
10-11-90
10-11-90
10-17-90
10-17-90
10-18-90
10-22-90
10-22-90
10-24-90
10-24-90
10-25-90
10-25-90
10-25-90
10-26-90
10-26-90
10-29-90
10-29-90
10-29-90
10-29-90
10-31-90
10-31-90

Robert A. Cook v. Collier Stone
PENN 89-46-DM
Kathleen I. Tarmann v. International Salt Co.
LAKE 89-56-DM
Keystone Coal Mining Corporation
PENN 90-40
Keystone Coal Mining Corporation
PENN 90-42
Puerto Rican Cement Company
SE
90-26-M
Sec. Labor for Ernest E. White v. Peabody Coal
WEVA 90-13-D
Shamrock Coal Company, Inc.
KENT 90-75
Moline Consumers Company
LAKE 90-11-M
Peters Trucking Company
WEST 90-36-M
Sec. Labor for Don B. Coleman v. Rambling Coal
KENT 90-72-D
Wyoming Fuel Company
WEST 90-112-R
Local 1609, Dist. 2, UMWA v. Greenwich Collieres PENN 84-158-C
Jim Walter Resources, Inc.
SE
90-19-R
Randy Cunningham v. Consolidation Coal
PENN 90-46-D
Asarco, Inc.
SE 89-24-RM
Warren Rose v. Cunningham Sand & Gravel
WEST 90-142-DM
Shamrock Coal Company, Inc.
KENT 90-137
Cyprus Emerald Resources Corporation
PENN 90-67
Aloe Coal Company
PENN 90-242-R
Drummond Company Inc.
SE
90-82
Drummond Company Inc.
SE
90-83
Sec. Labor for Randy Sherbrook v. T.I.C.
WEST 90-314-D
of Wyoming
Charles T. Smith v. KEM Coal Company
KENT 90-30-D
Duininck Companies
LAKE 90-126-R

Pg.
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1915
1918
1930
1932
1934
1938
1944
1953
1974
1996
2003
2060
2061
2067
2073
2096
2098
2107
2113
2124
2126
2128

Pg. 2130
Pg. 2139

ADMINISTRATIVE LAW JUDGE ORDERS
04-21-89
09-28-90

Chantilly Crushed Stone, Inc.
Sec. Labor for Alonzo Walker v. Dravo
Basic Mat-erials & R & S Materials

VA
SE

89-20-M
90-86-DM

Pg. 2141
Pg. 2148

OCTOBER 1990
Review was granted in the following cases during the month of October:
Utah Power & Light Company v. Secretary of Labor, MSHA, Docket No.
WEST 90-285-R. (Judge Lasher, August 27, 1990)
Secretary of Labor, MSHA v. Westmoreland Coal Company, Docket No.
VA 90-28. (Judge Weisberger, September 18, 1990)
There were no cases filed in which review was denied.

COMMISSION DECISIONS

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

October 19, 1990

EMERY MINING CORPORATION
and UTAH POWER AND LIGHT CO.,
MINING DIVISION

v.

Docket Nos. WEST 87-130-R, etc.

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

BEFORE:

Backley, Acting Chairman; Doyle and Nelson, Commissioners

BY THE COMMISSION:

On March 8, 1989, the Commission directed for review crosspetitions for discretionary review filed by the Secretary of Labor and
Utah Power and Light Company ( 11 UP&L 11 ) in these consolidated contest and
civil penalty proceedings arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seg. (1988). On March 24, 1989,
the Commission granted the joint motion of the cross-petitioners to stay
this matter pending resolution of related proceedings before Commission
Administrative Law Judge John J. Morris involving Emery Mining
Corporation ("Emery") because resolution of those related proceedings
could render review in this matter unnecessary. The parties were
directed to keep the Commission informed of the status of the related
cases on a periodic b?sis, and they have done so since the stay was
granted.
In September 1990, the Secretary and UP&L each filed a separate
Motion to Voluntarily Dismiss Petition for Discretionary Review. The
cross-petitioners state that on September 17, 1990, Judge Morris
approved in the related cases a settlement between the Secretary and
Emery that resolved all issues in those proceedings. The Secretary and

1911

UP&L state that as a result of the settlement in the Emery cases, they
are no longer interested in pursuing this matter before the Commission.
Each cross-petitioner also supports the dismissal of the other's
petition. The United Mine Workers of America has not filed a response
to the dismissal motions. Upon consideration of the Secretary's and
UP&L's motions, we conclude that adequate reasons have been presented
for dismissal of this proceeding and we grant both motions. See
generally,~· Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203
(February 1985).
Accordingly, the previous stay is dissolved, the Commission's
direction for review is vacated, and this proceeding is dismissed. l/

~d~-

Richard V. Backley, Acting Chairman
·7

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Jyce K'. Doyle, Commissioner/
,,

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L. Clair Nelson, Commissioner
Distribution
Timothy Biddle, Esq.
Thomas Means, Esq.
Crowell & Haring
1001 Pennsylvania Ave.
Washington, D.C. 20004
Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Nary Lu Jordan, Esq.
ill!WA

900 15th St., N.W.
Washington, D.C. 20005

ll

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

1912

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

October 30, 1990

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION ·(MSHA)
Docket No. SE 89-109-M

v.
MEDUSA CEMENT COMPANY-DIVISION
MEDUSA CORPORATION

BEFORE:

Backley, Acting Chairman; Doyle and Nelson, Commissioners

ORDER

BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1988)("Mine
Act"), counsels for the Secretary of Labor and Medusa Cement Company
("Medusa") have filed with the Commission a Joint Motion to Approve
Settlement. For the following reasons, the parties' settlement approval
motion is granted, and this matter is dismissed.
On January 23, 1990, we granted Medusa's petition for
discretionary review of a decision of Commission Administrative Law
Judge Roy J. Maurer, concluding that Medusa violated 30 C.F.R.
§ 56.142ll(d).
11 FMSHRC 2531, 2533 (December 1989). On October 25,
1990, the Secretary and Medusa filed the Joint Motion to Approve
Settlement.
In their motion, the parties explain that Citation No. 2857907,
which is the subject of this action, was issued to Medusa because a work
platform used by Medusa to hoist personnel was attached to a load line
rather than to the crane boom itself. Medusa has raised a question
concerning the proper interpretation of section 56.1421l(d) and whether
its cited conduct violated the standard. The parties note that on
September 5, 1990, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued a Program Policy Letter superseding its
prior policy pertaining to section 56.14211(d). The Policy Letter
provides that operators are permitted to hoist personnel with cranes
using a load line to support a work platform and comply with section
56.142ll(d) if four safety features detailed in the policy letter are

1913

implemented. The citation involved here was not issued because of a
failure to implement the four safety features and the parties state that
the record does not reflect whether these safety features were present
on Medusa's crane at the time of the inspection. In their joint motion,
the Secretary and Medusa request approval of their settlement, including
vacation of the citation and assessed penalty, vacation of the
Commission's direction for review, and dismissal of the proceeding.
Oversight of proposed settlements of contested cases is an
important aspect of the Commission's adjudicative responsibilities under
the Mine Act (30 U.S.C. § 820(k)) and is, in general, committed to the
Commission's sound discretion. See,~· Pontiki Coal Corp., 8 FMSHRC
668, 674-675 (May 1986). The Commission has granted motions to vacate
citations and orders and to dismiss review proceedings if "adequate
reasons" to do so are present. ~. Southern Ohio Coal Co., 10 FMSHRC
1669, 1670 (December 1988), and authorities cited ("SOCCO").
We conclude that adequate reasons exist to grant the parties'
motion in this case. As the prosecutor charged with enforcement of the
Act, the Secretary has determined that she should seek dismissal of this
proceeding. The operator joins in the motion. No reason appears on
this record to warrant denial of the motion before us. See, ~·
Morgan Corp., 12 FMSHRC 394, 395 (March 1990).
Therefore, upon full consideration of the motion, it is granted.
Medusa's petition for review is' dismissed. The underlying citation and
the assessed civil penalty are vacated. Our direction for review is
also vacated and this proceeding is dismissed.

L. Clair Nelson, Commissioner

1914

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

OCT 4 1990
ROBERT A. COOK,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. PENN 89-46-DM
MSHA Case No. MD 88-62

COLLIER STONE,
Respondent
DECISION
Appearances:

Mr. Robert A. Cook, McDonald, Pennsylvania,
pro se, for the Complainant;
Timothy P. O'Reilly, Esq., Pittsburgh,
Pennsylvania, for the Respondent.

Before:

Judge Fauver

Complainant brought this action under section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq., alleging he was discharged in violation of that section.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
and further findings in the Discussion below.
FINDINGS OF FACT
1. Respondent operates an open pit mine in Pennsylvania
where it produces crushed stone and aggregate used in or
substantially affecting interstate commerce.
2. Complainant was employed by Respondent from March 2,
1987, to May 6, 1988.
3. The mine was inspected by the Mine Safety and Health
Administration (MSHA), United States of Labor, on May 6, 1988.
Around noon on that date, the MSHA inspector interviewed
Complainant near the machine he was operating. Complainant
talked to the inspector about 5 minutes, and told him about
certain safety defects on the equipment.

1915

4. Respondent's manager (and part-owner), William F.
Duchess, knew that Complainant.talked to·tl.le MSHA inspector.
5. At the end. of Compla;i..nant is shift, arou.nd 3: 00 p. m , on
May 6, 1988, Mr. Duchess handed Complainant two paychecks, 1
instead of his normal paycheck, and told him he was fired.
The
parties are in sharp dispute as to Mr. Duchess• statement to
Complainant as to the reason for his discharge.
DISCUSSION WITH FURTHER FINDINGS
Complainant shortly found another job and is satisfied where
he is presently employed. He does not seek backpay or
reinstatement in this action. He seeks a finding that Respondent
·fired him because he reported safety defects to the MSHA
inspector on May 6, 1988.

·-

He testifieq that Mr. Duchess stated, when.he fired him,
that the company did not want any ''stool pigeons" in its
employment. Mr. Duchess denies this, and testified that he
stated to Complainant that he was fired because he was not
performing his job satisfactorily despite a prior warning. He
also testified as to a prior warning he gave to Complainant about
his job performance.
Mr. Duchess• testimony is consistent with the testimony of
the payroll clerk, who stated that. on May 4, 1988, Mr. Duchess
had told her to prepare two checks for Complainant and two checks
for another employee, named Adler, because they were both being
fired for unsatisfactory job performance.
Generally, in order to establish a prima facie case of
disciimination under section 105{c) of the Mine Act, a
complaining miner bears the burden of proving that ( 1) .·.he or she
engaged in protected activity and (2) the adverse action
complained of .was motivated in any part by that activity.
Consolidation Coal Company, 2 FMSHRC 2768 (1980), rev'd on other
grounds sub nom. Consolidation Coal Company v. Marshall, 663 F.2d
1211 (3d Cir. 1981);- Hecla-Day Mines Corporation, 6 FMSHRC 1842
(1984); Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 (1981),
rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp.,
709 F.2d 86 (D.C. Cir. 1983). The operator may rebut the
prima facie case by showing either that no protected activity
occurred or that the adverse action was in no way motivated by
protected activity.
If an operator cannot rebut the prima facie
case in this manner it may nevertheless affirmatively defend by
proving that it was also motivated by the miner's unprotected
1 one check was a normal paycheck; the second check was a
termination check.

1916

activities and would have taken the adverse action on those
grounds alone. The operator bears the burden of proof with
regard to the affirmative defense. Haro v. Marona Copper Company,
supra. The ultimate burden of persuasion does not shift from the
complainant. United castle Coal Company, supra. See also Boich
v. FMSHRC, 719 F.2d 194 (6th Cir. 1983).
.
The reliable evidence does not preponderate to sustain, by
greater weight, Complainant's account of the facts. Inasmuch as
Complainant has the burden of proof, I find that he has not
proven a discriminatory discharge within the meaning of section
105(c) of the Act.
CONCLUSION OF LAW
1.

The judge has jurisdiction over this proceeding.

2. Complainant has not met his burden of proving a
violation of section 105(c) of the Act.

ORDER
WHEREFORE IT IS ORDERED that this proceeding is DISMISSED.

tJ,JL CV:- 1-wuv ~

William Fauver
Administrative Law Judge

Distribution:
Mr. Robert A. Cook, RD #4, Box 154A, McDonald, PA 15057
(Certified Mail)
Timothy P. O'Reilly, Esq., 1805 Law & Finance Building,
Pittsburgh, PA 15119 (Certified Mail)
/fb

1917

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

22041

OCT 4 1990
KATHLEEN I. TARMANN,
Complainant
v.

DISCRIMINATION PROCEEDING

INTERNATIONAL SALT COMPANY,
Respondent

MD 89-10

Docket No. LAKE 89-56-DM

Cleveland Mine
DECISION
Appearances:

Before:

Daniel Kalk, Esq., Valore, Moss & Kalk, Cleveland,
Ohio for Complainant;
Keith A. Ashmus, Esq., Thompson, Hine and Flory,
Cleveland, Ohio for Respondent.

Judge Melick

This case is before me upon the complaint by Kathleen I.
Tarmann under section 105(c)(3) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c.- § 801 et seq., the "Act, 11 alleging
discriminatory suspension by the International Salt Company
(International Salt) in violation of section 105(c)(l) of the
Act.~/
!/section 105(c)(l) of the Act provides as follows:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause
discrimination _against or otherwise interfere with the
exercise of the statutory rights of any miner,
representative of miners or applicant for employment in
any coal or other mine subject to this Act because such
miner, representative of miners or applicant for
employment, has filed or made a complaint under or
related to this Act, including a complaint notifying
the operator or the operator's agent, or the
representative of the miners at the coal or other mine
of an alleged danger or safety or health violation in a
coal or other mine or because such miner,
representative of miners or applicant for employment is
the subject of medical evaluations and potential
transfer under a standard published pursuant to section
101 or because such representative of miners or

1918

More particularly Ms. Tarmann alleges in her complaint as
follows:
On October 19, 1988, I was discharged for
allegedly being insubordinate to a reasonable order
from my foreman Robert Hatfield.~/ The order was not
only unreasonable, but discriminatory as well.
Mr. Hatfield ordered me to abstain from a normal
biological function.
Mr. Hatfield refused to allowed
me to go to the surf ace to use the ladies room, as the
one in the mine was dirty. Mr. Hatfield told me that
he would allow me a half hour to clean the bathroom.
When I told Mr. Hatfield I couldn't wait that long he
still refused to allow me to go. Mr. Hatfield and
other foreman [sic] had allowed the men to go to the
surf ace to use the bathroom when the ones in the m~ne
are dirty. Mr. Hatfield had made several statements to
get me prior to this incident and make me pay for
causing him trouble with his boss. Mr. Hatfield made
these statement on the skip and many people heard him.
I belive [sic] Mr. Hatfield deliberately did not clean
, the womens [sic] bathroom to get back at me and forced
me into the situation.
In order to establish a prima facie case of discrimination
under section 105(c) of the Act, a complaining miner bears the
burden of proving that (1) he engaged in protected activity and
(2) the adverse action complained of was motivated in any part by
the protected activity. Secretary on behalf of Fasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980),
rev'd on other grounds, sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April
1981).
The mine operator may rebut a prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by protected activity.
If the
cont'd fn.l
applicant for employment has instituted or caused to be
instituted any proceedings 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."
~ The Complainant was subsequently reinstated with
suspension following arbitration.

1919

operator cannot rebut the prima facie case in this manner, it
nevertheless ·may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected
activity.
Fasula supra., Robinette supra; see also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987);
Donovan v. Stafford Construction Co., 732 F.2d 954, 958-59 (C.C.
Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-6 (6th Cir. 1983)
(specifically approving -the C~mmi·ssion' s Fasula-Robinette test).
Cf. NLRB v. Transportation Management Corp., 462 U.S. 393,
397-413 (1983) (approving a nearly identical test under the
National Labor Relations Act).
As clarified at hearings in this case the Complainant is
maintaining that her suspension by International Salt on
October 19, 1988, was a discriminatory response to the following
protected health and safety complaints:
( 1) on or about-October 8, 1988, to her foreman Robert Hatfield and to Hatfield's
supervisor, Mine Superintendent Bruce Higgins, that Hatfield was
sleeping at his desk in the shop office during their workshift
and that he had also taken the phones off the hook in his off ice,
and (2) during the midnight shift on October 18-19, 1988, she
complained to Hatfield that the ladies toilet in the shop area
was not in a sanitary and safe condition. The fact that
complaints of this general nature were made is not disputed. The
first element of a prima facie case has therefore been
established.
The second element of a prima facie case is a showing that
the adverse action was motivated in any part by the protected
activity.
Direct evidence of motivation is rarely encountered.
More typically, the only available evidence is indirect.
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508 (1981).
In the instant case it is clear that management had
knowledge of the cited protected activities. The Complainant
further maintains that foreman Hatfield displayed hostility
toward her complaints about his sleeping on the job by statements
purportedly made on a crowded "skip" or elevator as the midnight
shift crew was being-transported to work one evening.
Complainant described the alleged threats in the follwing
colloquy at trial:
Q.
[By Counsel for Complainant] Now, how do you know
that the actions taken against you were as a result of

1920

your health and safety complaint to Higgins and your
health and safety complaints to Hatfield?
A.
[Complainant Tarmann]
skip.
Q.

Bob who?

A.

Bob Hatfield.

Q.

Okay.

Because Bob told me on the

A. On the skip told me that the person responsible for
him having to take an extra vacation, an unscheduled
vacation, was going to pay. He said that.
THE COURT:

When was this stated?

THE WITNESS:
THE COURT:

Pardon Me.
When was this statement made?

THE WITNESS:
It was on the skip coming up out of the mine
the next day.
THE COURT:
After the incident discussing the toilet
conditions?
THE WITNESS:
No, the next day after I talked to his boss
about him sleeping.
Q.

And that would have been approximately what date?

A.

Probably the 12th or 13th.

THE COURT:

Of October 1988?

A.

Right.

Q.

Okay, and what did he tell you?

A.

He said that I was going to pay.

Q.

For what?

A.
For gping over his head, for causing him trouble with
his boss and causing him to have to take an extra vacation
and

1921

Q. Did you explain to him that you were simply doing your
job as health· and safety representative?
A.

At that time?

Q.

Yes.

A.

On the skip or talking to him?

Q.

Talking to Hatf iled.

A.

Yeah.

Q.

And what did he say about that?

A.

He didn't say much of anything.

He didn't say anything.

Q. Now, from the date that you caught him sleeping, which
was approximately the 10th of October, to the date that you
were suspended, approximately the 19th of October, how many
discussions did you have with Hatfield when he either warned
you or told you about his plans as they related to you
because of your activity?
A.
I'd say it went on for three days on the skip, two or
three days.

Q. Were there other people on the skip at the time that you
heard this?
A.

Oh. yeah.

Q.

And who were they?

A.
John Budziak, Richard Fisher, Brad Diven, Bob Damron,
and there were other people too.

Q.

And they heard everything you heard?

A.

I guess they did, yeah.

They did, yeah.

Q.
And tell the judge the rest of what they said to you
regarding your health and safety complaints and the action
he was going to take against you?
A.
Well, he said that I was definitely going to pay.
he
looked straight at me, and I mean there was no love in his
eyes either, and he told me I guarantee you, she will pay.

Several of the Complainant's witnesses claim to have heard
different variations of the these alleged statements.
In any
event Hatfield explained in the following colloquy at trial the
most credible explanation for what ocurred on the elevator:

Q.
[By Counsel for Res.pondent] Do you recollect making some
kind of comment on a skip about vacation?
A.

[Hatfield] Yes I do.

Q. Can you describe to the judge exactly what you recall
about that?
A. Well, what it was, on the vacation, I had a vacation
scheduled for later that year. And Bob Foster, he was a
relief foreman underground at the time, and he was getting
ready to go upstairs.
And so Baker, Mr. Baker adked me if I
could take a vacation a couple weeks early.
·THE COURT:
THE WITNESS:
underground.
THE COURT:

Who's Baker now?
He's a superintendent of maintenance
All right.

He's your boss?

A. Right.
He asked me if I could take my vacation early so
Bob could fill in for me, and I said sure, I could. So we
scheduled it up early. And I've got a foreman that always
sort of riled up a little bit, and I told him to give me an
extra vacation because he knew when my vacatioh'was.
Q.

Who was that foreman?

A.

Jim Bannerman.

* * * *
A. And so he must have got the word around that I was
getting an extra vacation, because I told him I was working
so hard that he was going to give me an extra vacation, and
so Gene Sharpe on the skip, he said
THE COURT:
THE WITNESS:
in '88.
Q.

Who's Gene Sharpe now?
One of the employees that used to work for me

Hourly employee?

1923

A.
Hourly employee, yes, he said, Bob said, 11 I hear tell
you're ~etting an extra vacation".
I said "yeah".
I said
"people's complained that I've been working too hard and
they're giving me an extra week's vacation.
I sure
appreciate that.
I'd like to thank whoever got this
started'i, just more or less joking around.
And that was
about all that was said.
Q.
And did you actually ever take an extra vacation or this
changed vacation?
A.
No, I didn't.
Bob Foster got sick and so I couldn't
take my vacation when we re-arranged it, so I ended up
taking it the same week that I had it -- already had it
scheduled.
Q. Now, in that skip when you said that, you were -talking
to Gene Sharpe at the time?
A. Yes.
(Tr. 287-289)
Hatfield accordingly maintains that the statement
attributed to him on the skip was certainly not retaliatory.
Inasmuch as the persuasive credible evidence clearly shows that
Hatfield was never in fact required to change his vacation and
was not in fact subject to discipline, and that management knew
he was then being treated for narcolepsy, I conclude that
Hatfield did not demonstrate any retaliatory motivation towards
Ms. Tarmann in this regard.3/
Tarmann also cites her subsequent complaints to Hatfield on
the October 18-19, midnight shift about the conditions of the
ladies shop area toilet as a basis for her suspension. Hatfield
made notes of events shortly after they occurred that evening.
(See Appendix I) I give these contemporaneous notes, which were
corroborated in essential respects at hearing, significant
weight and indeed I ~ind this version of events to be the most
credible.
I find then that Ms. Tarmann's suspension was the
result of her refusal to clean the toilet as she had been
directed to do earlier on the shift before her alleged
"emergency" need to use the toilet and for her use of an apparent
duplicitous subterfuge to use the outside toilet facilities in
violation of the direct order of her foreman.
These activities
are clearly not protected activities and reliance on these (in
addition to her previous disciplinary record) by management in
suspending the Complainant was not in contravention of Section
105(c) of the Act. There is moreover insufficient credible
evidence to show that management was motivated in any part by her
protected activities.
Under the circumstances I find that there
was no violation of Section 105(c) and that this case must be
dismissed.
3
I I note that the Arbitrator. below also :r;gjec.ted the
testimony of Ms. Tarmann and her witnesses on this issue.

1924

ORDER
The complaint of

i/\./~
aryi elick
AdmiT strative _aw Judge
Distribution:

\

Daniel Kalk, Esq., Valore, Moss & K~ k, 75 Public Square,
Suite 300, Cleveland, OH 44113 (Certified Mail)
Keith A. Ashmus, Esq., Thompson, Hine and Flory, 1100 Ncrt.ional
City Bank Building, 629 Euclid Avenue, Cleveland, OH 44114-0370
(Certified Mail)
nb

1925

APPENDIX I
On October 19, 1988, I, Bob Hatfield, was
approached by Kathy Tarmann at 12:05 AM and she was
upset about her bathroom. She said her bathroom looked
like a pig's eye [sic] or something like that and she
couldn't use it. Mike Miller and both utility men,
Jose Sanchez and Mark Miller were present and this
incident happened in front of the electrician's pad.
I ~
asked her if they didn't change her bathroom today and·
yes but they didn't clean it good enough for her to use.
I told her she would have to make do, clean it enough
to use and I'd talk with Mike in the morning. Then she
said this place never learns and she was going to take
this damn company to court and sue them. She kept
talking like this until she was out of ear shot.
The next time I went by her bathroom, I was going
to check it but it was locked and I didn't have the key
on me so I just glanced at the other two and they
seemed very clean to me. Then about 1:50 AM I was
going toward the substation and Kathy came raging out
of the substation cursing, not really at me, but at the
company in general, saying things like she was taking
this G.D. company to court and she has complained about
the bathrooms for years now and no damn body tries to
help her. Then when she got to where I was she told me
that she wasn't about to use the bathroom and she was
going to go upstairs where they had a decent damn
bathroom. This conversation took place in front of 3
air door and present-were Kathy, myself, Mike Miller
and Mark Miller. Jose Sanchez, Ken Mate and Jim Swann
had stopped as they were going to the shop.
I told
Kathy in a calm but to the point voice that she could
not go upstairs because if I let her go I'd have to let
everyone go and I'd never get anything done with my men
yo-yoing up and down the skip.
I also explained to her
that if she needed time to clean her bathroom to go
ahead and clean it so she could use it, but no way was
she going upstairs. At this she really started raging
and told me that she would have my M.F. ass into court
along with the G.D. company and sue us, that we'll
never learn until she sues our damn asses.
She said
other things until I told her if she didn't calm down

1926

and quit cursing and raving, I'd have to ask her to
leave the mine until we could meet with higher people
than me. ·she quit cursing and was just raging under
her breath and started walking toward the storeroom. I
told Mike Miller to jump on my cushman and I started to
take him down into the mill. That's when I decided to
go to the off ice to get Kathy some rags to clean the
bathroom. When I was getting her rags she was yelling
at me saying it was a shame that a big company couldn't
provide her with a clean bathroom and that she needed
to clean her bathroom and that she wasn't supposed to
have to clean her bathroom and she needed rubber
gloves, etc. etc. I told her the gloves were next door
in the storeroom. I was getting back on my cushman
when she came out of the storeroom and she was ragging
[sic] again, cursing and saying she was going to teach
this G.D. company a lesson, she was going to sue this
G.D. place and all she wanted was a clean bathroom an-d
it wasn't her job to clean it. Swann, Mate, Mark and
Jose were in front of the storeroom at this point and
she came to my cushman, jumped on it and threw the rags
and gloves on the seat, pushed them back behind us and
said I'm going home, take me out.
I don't have 30
minutes to clean my damn bathroom so I'm going home.
I
told her fine and I took her to the serving skip.
Kathy had mentioned calling Bruce Higgins when she
was in my off ice to get her rags and I told her she
wasn't going to wake up anybody over such a petty thing
as this, but when I went down to the mill with Mike
Miller, Jose Sanchez and Mark Miller, Mark said she was
probably up there calling Bruce and I 'd be in big
trouble tomorrow.
I didn't comment and then Mark said
Kathy gets mad and goes home and we have to do her work.
I told Mark, no, he's to do the work I assigned him.
this was about 2:10 AM. After Mark and Jose and Mike
got the cable through the conduit, I went down to where
Gene Sharp was working to check on his job when Joe the
mill man yelled at me saying the phone was for me.
It
was Kathy and I thought that she was calling telling me
she was up and ready to go home so I asked Joe to find
out what she wa'nted and she told Joe she wanted to talk
with me.
I went back to the phone and she said, "I'm
back from using the bathroom and I'm in the shop." I
said that she said she was going home and I told her to
stay there that I'd be up at the shop.
I went to the
shop and Kathy was in front of my off ice by herself so
I drove up and she got on my cushman and just sat there.
I went in my off ice to make sure that my desk was
locked then I told you you couldn't go upstairs to use
bathroom and you said you were going home so you'd

1927

better go! She asked "Where do you want me to work?"
This was about 2:18 AM.
I started taking her down the
shop toward the lunchroom telling her that I wasn't
going to assign her any work and she said wait a
minute, do I get paid for the rest of the night? Do I
need my Steward and a meeting? At this I turned around
and immediately started back to the off ice where I
started to call Bill Baker or Bruce Higging. Then I
stopped and told Kathy that I wasn't going to call in
anyone but I'd work her under protest until in the
morning when Bill comes in and we can have a meeting.
I also read her Plant Rule #5 -- Failure or refusal to
obey reasonable instructions of a supervisor. She
broke this rule when she didn't clean the bathroom and
when she went upstairs (as if she was going home) just
to use the bathroom when I told her she couldn't. She
also came back underground without asking permission.
I read her Plant Rule# 34 -- As a condition of-~
employment hourly employees shall not leave the plant
(which means underground if you are assigned there),
nor visit the parking lot without supervisor's
permission. She did not have my permission to leave
the mine to use the bathroom; she left on her own
supposedly to go home.
Kathy said, "I need my Steward." I told her I'd
call one in and she should go and help Mike. She asked
where he was and I told her in the mill at 21 MCC.
During lunch I called Len Davis and told him to
get hold of John Shumney and let him call me. John
called about 3:05 AM and I explained what happened and
that I was working Kathy under protest until Bill comes
in for a meeting. Shumney said he'd be better talk to
Kathy and said he'd call about 4:30 AM to see when Bill
was coming in. Bill was going to come in early anyway,
which I mentioned to John.
I made the rounds in my work area to make sure
everyone was busy and I started thinking that at this
plant, no one was ever worked under protest so I'd
better get my boss in. At about 4:00 or 4:15 AM I
called Bill Baker after I wrote down everything that
had happened. When I went out I bumped into Kathy and
Karl on Dave Green's cushman.
I asked Dave why Kathy
was on his cushman and he said she took it. At the
first part of the shift she tried to take my mechanic's
cushman and I told my mechanic to go get it back. the
electrician's cushman was down. Anyway, Kathy and Karl
asked me if they could have a meeting and I told them
it would have to be later. I checked on a couple of

1928

jobs while waiting for Bill to show up.
I got hold of
Bruce who said they would be down since Bill should be
in anytime·.
I bumped into Kathy and Karl again and
said they would be down since Bill should be in anytime.
I checked on a couple of jobs while waiting for Bill to
show up.
I got hold of Bruce who said they would be
down since Bill should be in anytime.
I bumped into
Kathy and Karl again and said I was waiting for Bill so
they drove off. they had been in front of the
bathrooms earlier so I assumed Karl was investigating.
I got a call from John Good wanting to know if I was
through with Karl and I told John that I didn't send
for Ka.rl but I was going to have a meeting with him,
Kathy and Baker when Bill came in. Not long after,
Bill and Bruce came in and we had the meeting, and
Kathy was suspended after this meeting.
Nothing else happened until I went up with my
people to the United Way meeting.· After I got back
from that meeting and went out to get the hourly
timecards, someone from the waiting room yelled and
said, "Kathy says you're not going to make it home!"
When I got back underground and was doing my paperwork,
someone went by the office and said, "you've had it
when you go home!" Then Frank Smutko came into the
off ice and asked if I had a magic marker and when I
gave it to him he marked an X over my heart and said
that was where I was going to get it on the way home or
in the near future and laughed. Nothing happened on
the way home or at home on the 19th.
Under protest due to the early hours and not
wanting to wake someone up, I worked Kathy until my
boss showed up for the meeting. My recommendation is
to suspend Kathy until further investigation into this
matter.

1929

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

October 10, 1990

CIVIL PENALTY PROCEEDING

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

Docket No. PENN 90-40
A. C. No. 36-04852-03698

v.

Urling No. 1 Mine

KEYSTONE COAL MINING
CORPORATION,
Respondent

Before:

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Judge Merlin

The Solicitor has filed a motion to approve settlement of
the three violations involved in this case. The originally
assessed penalty was $3,700 and the proposed settlement is
$2,250. The Solicitor discusses the violations in light of the
six statutory criteria set forth in section llO(i) of the Federal
Mine Safety and Health Act of 1977.
Order No. 3300139 was issued as a 104(d) (2) order for a
violation of 30 C.F.R. § 75.400 because coal was being dumped
along with gobbed rock in the No. 2 entry. The originally
assessed penalty was $1,200 and the proposed settlement is $750.
Order No. 3088570 was issued as a 104(d) (2) order for a violation
of 30 C.F.R. § 75.400 because combustible materials were permitted to accumulate in the 10 east working section. The
originally assessed penalty was $1,300 and the proposed settlement is $750. Order No. 3088575 was issued as a 104(d) (2) order
for a violation of 30 C.F.R. § 75.400 because loose coal and coal
dust, combined with gobbed materials, were permitted to accumulate or be stored in-the crosscuts left and right off the No. 2
entry of the 5 east section. The originally assessed penalty was
$1,200 and the proposed settlement is $750.
The Solicitor represents that the reductions are warranted
because negligence and gravity were less than originally thought.
According to the Solicitor, the operator has encountered mining
conditions which have caused difficulty in the removal of gobbed
materials, such as rock and slate, from the coal being produced.
The operator sought assistance from MSHA in determining an
appropriate method to handle the gobbed materials which could
contain some coal, and MSHA provided information concerning
control of this material. The operator believed that MSHA had
accepted the rock dusting method it used to render gob materials
inert. However, the Solicitor advises that the subject violations involved coal accumulations combined with the gobbed

1930

materials and that MSHA has consistently distinguished coal
accumulations from gobbed materials and that accumulations must
be removed from the mine.· The parties agree that the subject
orders do indeed properly cite violations of the named standard.
In addition, the finding of unwarrantable failure remains
unchanged so that the recommended settlement amounts remain
substantial.
In addition, the Solicitor avers that although negligence
remains high it was somewhat mitigated because the operator
misunderstood what was required. I have difficulty in understanding the Solicitor's negligence argument. However, since the
parties are in agreement, I will let the unwarrantable finding
stand.
I do accept the Solicitor's statement that although
gravity is high, the degree of gravity was mitigated because the
gobbed materials were rock dusted. Finally, I note the
Solicitor's representations that the reductions are justified
because the operator demonstrated a high degree of good-faith in
resolving these violations. Thus, the operator immediately
removed the accumulations and is in the process of renovating its
cleaning plant so that the excessive rock and slate problems
which led to the issuance of orders will not recur. Both actions
have required great expense.
Based upon the foregoing, I find that the proposed settlements are appropriate and approve them.
Accordingly, it is ORDERED that the proposed settlements be
APPROVED and the operator PAY $2,250 within 30 days of the date
of this decision.

'"=--\~,~~
Paul Merlin
Chief Administrative Law Judge
Distribution:
Catherine Oliver Murphy, Esq., Office of the Solicitor, U. s.
Department of Labor, Room 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mai1)
William M. Darr, Esq., Keystone Coal Mining Corporation, 655
Church Street, Indiana, PA 15701 (Certified Mail)
Robert H. Stropp, Jr., Esq., General Counsel, UMWA, 900 15th
Street, N.W., Washington, DC 20005 (Certified Mail)
/gl

1931

?EOERAL .\UNE S~l=!:TY ANO HEAL 'i'H ~EV!EW CCMMtSStON
1730 K STREET

~W.

6TH FLOOR

WASHINGTON, :J.C.

20J06

October 10, 1990

CIVIL PENALTY PROCEEDING

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

Docket No. PENN 90-42
A. C. No. 36-00823-03725

v.

Jane Mine

KEYSTO:.rn COAL MINING
CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY

Before:

Judge Merlin

The Solicitor has filed a motion to approve a settlement for
the one violation involved in this case. The originally assessed
penalty was $1,200 and the proposed settlement is $800. The
Solicitor discusses the violation in light of the six statutory
criteria set forth in section llO(i) of the Federal Mine Safety
and Health Act of 1977.
Citation No. 3300116 was issued as a 104(d) (1) citation for
a violation of 30 C.F.R. § 75.400 because float coal dust was
permitted to accumulate on rock dusted surfaces in the immediate
return.
The Solicitor represents that the reduction is warranted
because negligence is not as high as originally thought.
Based
upon the Solicitor's . representations, I believe that gravity also
is somewhat less than had been thought.
The Solicitor states
that the operator properly conducted onshift examinations of the
areas and believed that it was not necessary to rockdust the area
again.
Further, the operator believed that the area was slightly
gray in color and noted that several parts of the area were damp
or wet.
So too, the inspector conceded that parts of the area
were wet.
According to the Solicitor, it is uncertain how long
the condition.existid.
Finally, no accumulations were noted in
the preshift books nor were any citations issued for failure to
record the condition.
The Solicitor states that because of the foregoing circumstances, the citation has been modified to a 104(a) citation.
This action is clearly correct since the operator's conduct did
not rise to the level of unwarrantable failure as that term has
been defined by the Commission.
In my opinion, the dampness

1932

which contributed to a lessening of the negligence factor also
mitigates gravity. Nevertheless, I agree with the Solicitor that
the violation was serious because there remained a risk of
explosion or fire.
Based upon the foregoing, I find that the recommended
settlement is appropriate.
Accordingly, it is ORDERED that the proposed settlement be
APPROVED and the operator PAY $800 within 30 days of the date of
this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Catherine Oliver Murphy, Esq., Office of the Solicitor, U. s.
Department of Labor, Room 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104
(Certified Mail)
William M. Darr, Esq., Keystone Coal Mining Corporation, 655
Church street, Indiana, PA 15701 (Certified Mail)
Robert Strapp, Esq., General Counsel, UMWA, 900 15th Street,
N.W., Washington, DC 20005 (Certified Mail)
/gl

1933

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

22041

OCT 111990
CIVIL PENALTY PROCEEDING

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

Docket No. SE 90-26-M
A.C. No. 54-00240-05511
Cantera Cana

PUERTO RICAN CEMENT COMPANY,
Respondent
DECISION
Appearances:

Before:

James A. Magenheimer, Esq., Office of the
Solicitor, U.S. Department of Labor, New York,
for Petitioner;
Daniel R. Dominguez, Esq., Dominguez & Totti,
Hato Rey, Puerto Rico, for Respondent.

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seq., the "Act," charging Puerto Rican
Cement Company, Inc., (Puerto Rican Cement) with one
violation of the regulatory standard at 30 C.F.R. § 56.14200
and proposing a civil penalty of $1,500 for the alleged
violation. The general issue before me is whether Puerto
Rican Cement violated the cited regulatory standard and, if
so, the appropriate civil penalty to be assessed in
accordance with section llO(i) of the Act.
-

Citation No. 3250616 issued August 10, 1989, pursuant to
section 104(a} of the Act alleges a "significant and
substantial" violation of the noted mandatory standard and
charges as follows:
A fatal accident occurred at
08-08-89 when the Euclid No.
rolled over a person who was
truck did- not sound the horn
moving the truck.

this operation on
245 hauling truck
in [sic] foot.
The
before start [sic]

The evidence is not disputed tnat Francis Gonzalez a
19 year old independent truck driver was fatally injured at
about 7:40 a.m. on August 8, 1989, when he was run over by a
truck at the Puerto Rican Cement Cantera Cana Mine in Ponce,
Puerto Rico. Eyewitness Angel Torres, a truck driver for

1934

Puerto Rican Cement, testified at hearing that he was in the
control room completing a report when he saw Gonzalez
crossing as the haul truck began moving out from the crusher.
He saw the victim walk oyer to a faucet then turn back as the
truck began moving from the crusher. The truck had moved
about 40 feet when it struck Gonzalez. Torres acknowledged
that he told the MSHA investigator that he did not hear the
truck driver blow his horn as he exited from the crusher and
that he was standing within 5 to 6 feet of the truck while he
was in the control room.
Torres e~timated that the truck was travelling at about
5 to 7 miles an hour and was not in an area where it could
pick up speed. He also testified that the type of truck that
struck the victim has a blind spot directly in front and to
the right side so that you cannot see people up to about 43
feet.
This was because of the 7 to 8-foot-high truck
structure. Torres also testified that he signed a paper
following a February 23, 1989, safety meeting indicating that
he was aware of a requirement to blow the horn before moving
the truck. Torres admitted however that he in fact did not
make it a practice to blow his truck horn or use any other
signal before pulling away from the crushers if there were no
persons present. He acknowledged that he had never been
disciplined for failing to blow his horn before pulling out.
Alejandro Batista, a supervisory MSHA Inspector
conducted an investigation at the accident scene on August
10, 1989. Batista observed that there was indeed a blind
spot in the front area of the subject trucks. He also
concluded that the truck driver did not blow his horn before
moving from the crusher area and that this constituted a
"serious and sbustantial" violation of the cited standard.
In reading his conclusion Batista was aware that the
employees, including the subject truck driver, had signed a
statement acknowledging the requirement of blowing their horn
before moving their vehicles, but Batista found that this
procedure was not enforced at the plant.
MSHA Inspector Roberto Torres testified that he met with
Puerto Rican Cement officials in February 1989, to discuss
new MSHA regulations including the requirement for truck
drivers to blow their horns before moving their trucks.
Julio Salugo, an engineer for Puerto Rican Cement
acknowledged that although they have a disciplinary procedure
for safety violations none of the truck drivers had been
disciplined before the accident at issue for failure to blow
their horns before moving their trucks.
He testified that
subsequent to the accident there has been some disciplinary
action taken.

1935

Former Puerto Rican Cement employee, Freddie·Irizarry,
testified that while he was employed with the company there
was indeed a disciplinary procedure in effect. He explained
that on the first notice of a violation the employees was
told how to correct the violative act. The second time a
warning was issued and the employee could be suspended or
"other appropriate action" could be taken by management.
Within this framework of evidence it is clear that the
violition is proven as charged. The testimony of eyewitness
Angel Torres is not disputed that as the subject truck left
the crusher its horn was not blown nor was "other effective
means [used] to warn all persons who could be exposed to a
hazard from the equipment". Clearly the violation was also
"significant and substantial". A violation is "significant
and substantial" if there is an underlying violation of a
1nandatory standard, the existence of a discrete hazard
contributed to by the violation, a reasonable likelihooa--that
the hazard contributed to will result in an injury, and a
reasonable likelihood that the injury in question will be of
a reasonably serious nature. Mathies Coal Company, 6 FMSHRC
1 (1984). The failure to give an audible or other effective
warning upon leaving the crusher area in the vicinity of
pedestrian traffic clearly meets this criteria. The
violation was particularly serious because of the blind area
from the cabs of the subject trucks.
Puerto Rican Cement argues that it should not be
chargeable with significant negligence because it had trained
and disciplined its employees in the requirements of the
cited standard.
Indeed the evidence does show that at a
training class held in February 1989 the specific subject
matter of an audible warning prior to trucks moving was
covered. Moreover following that class the truck drivers
signed a statement acknowledging that requirement. The
evidence shows however that the truck drivers thereafter
regularly ignored that requirement without discipline before
the accident here at issue.
According to truck driver Angel Torres he did not in
fact issue any audible or other alarm before moving his truck
so long as he did not see anyone in front.
He has
acknowledged moreover that he had never been disciplined for
this practice. In light of the evidence that there is an
obstructed view from these trucks of approxiamtely 43 feet to
the front and to the right of the driver's position it is
clear that the procedure followed by Mr. Torres was
particularly dangerous. The evidence also shows that no
driver had been disciplined prior to this accident for
failing to issue an audible or other warning prior to moving
their trucks.
Indeed the persuasive evidence is that there
was not in effect at this mine an effective means of
enforcing the alleged rule for an audible warning prior to

1936

moving the trucks. Accordingly the operator is chargeable
with negligence.
In assessing a civil penalty in this case I have also
considered the operator's size, history of violations and
good faith abatement of the violation.
Under the
circumstances I find that a civil penalty of $1,500 is indeed
appropriate.
ORDER
The Puerto Rican Cement Company, Inc rporated, is
directed to pay a civil
$1,500 wi in 30 days of the
date of this decision.

G ry
Adm in
Distribution:
James A. Magenheimer, Esq., Offic of the Solicitor, U.S.
Department of Labor, 201 Varick S reet, Room 707, New York,
NY 10014
(Certified Mail)
Daniel R. Dominguez, Esq., Dominguez & Totti, Puerto Rican
Cement Company, Inc., P.O. Box 1732, Hato Rey, PR 00919
(Certified J.lllai 1)
nb

1937

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

OCT 111990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
ERNEST EUGENE WHITE,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEVA 90-13-D
OTC&I-CD-89-14
Sundial No. 10-B Mine

v.
PEABODY COAL COMPANY,
Respondent
PEABODY COAL COMPANY,
Contestant

CONTEST PROCEEDING

v.

Docket No. WEVA 90-31-R
Citation No. 2723186; 11/8/89

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

Sundial No. 10-B Mine
Mine I.D. No. 46-04210

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-137
A.C. No. 46-04210-03678

v.
sundial No. 10-B Mine
PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

Edward H. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Secretary of Labor;
'
Thomas L. Clarke, Esq., Charleston, West Virginia,
for Peabody Coal Company.

Before:

Judge Fauver

These three actions, under the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq., turn on the issue

1938

whether section 103(f) of the Act was violated when the operator
refused to pay a walkaround representative designated to accompany a federal mine inspector. The inspection party included a
federal inspector and a West Virginia mine inspector, and concerned a roof fall at Peabody's No. 10-B Mine. The·operator paid
the miner designated by the miners' representative as the walkaround to accompany the West Virginia mine inspector, but refused
to pay the walkaround designated to accompany the federal mine
inspector, contending that one paid walkaround was all that was
required under section 103(f).
The parties have filed cross-motions for summary decision
based upon a stipulated record.
DISCUSSION
It is stipulated that on May 16, 1989, the Mine Safety and
Health Administration (MSHA) and the West Virginia Department of
Energy (WVDOE) jointly conducted an investigation of a roof fall
at Peabody Coal Company's No. 10-B Mine.
Ernest Eugene White, in his capacity as the Union Mine
Safety Committee Chairman,· designated Bob Holstine, President of
UMWA, Local Union 2271, as the walkaround representative of
miners to accompany the state inspector; he designated himself as
the walkaround to accompany the federal inspector. The inspection party consisted of Jim Cline, an MSHA inspector, Danny
Graham, A WVDOE mine inspector, Bob Holstine and Ernest Eugene
White, representatives of the miners, and representatives of
management.
After the investigation, the federal and state inspectors
issued separate citations under their respective mine laws and
regulations.
Peabody paid Bob Holstine for the time he spent on the
inspection, but took the position that its payment of
Mr. Holstine satisfied its obligation under federal law to
provide walkaround pay to only one miners' representative per
inspection.
It therefore refused to pay Ernest Eugene White
walkaround pay. The Secretary of Labor contends that Mr. White
was entitled to participate in the investigation and to be paid
as a walkaround in a federal inspection.
Section 103(f) of the Act provides in part:
[A] representative authorized by [the] miners shall be
given an opportunity to accompany the Secretary or his
authorized representative during the physical inspection of any coal or other mine . • . for the purpose of
aiding such inspection and to participate in pre- and

1939

post-inspection conferences held at the mine. . . .
Such representative of the miners who is also an
employee of the operator shall suffer no loss of pay
during the period of his participation in the inspection . • . . To the extent that the Secretary or the
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 representative of the miners
who is an employee of the operator shall be entitled to
suffer no loss of pay during the period of
participation . . . .
Under this section, the miners are entitled to have at least
one walkaround representative on each federal inspection of a
coal mine.
The section also gives the MSHA inspector the authority to determine the number of additional walkarounds that would
aid in his inspection and the discretion to limit the number of
walkarounds. Secretary of Labor on behalf of Wayne v.
Consolidation Coal Company, 11 FMSHRC 483 (1989). An operator is
required to give at least one miners' representative, and as many
more as an inspector has determined would aid in his inspection,
the opportunity to accompany the inspector. The miners have the
right to determine who shall be given the opportunity to serve as
their walkaround representatives. Secretary of Labor on behalf
of Truex v. Consolidation Coal Company, 8 FMSHRC 1293, 4 MSHC
1130 (1986). However, section 103(f) requires that only one
walkaround representative suffer no loss of pay for his or her
time spent on an inspection. If an MSHA inspector chooses to
permit more than one miners' representative to accompany an
inspection party, as provided in section 103(f) of the Act, there
is no federal law or regulation to guide an operator as to which
of the miner's representatives must suffer no loss of pay.
In this case, the MSHA inspector permitted two representatives of the miners to take part in the May 16, 1989, inspection,
even though he found that only one was necessary. Ernest Eugene
White, as the Union Safety Committee Chairman, designated Bob
Holstine, President -of UMWA, Local Union 2271, as the miners'
representative to accompany Mr. Graham, the West Virginia mine
inspector; he then designated himself as the miners' representative to accompany the federal inspector.
Peabody paid
Mr. Holstine for the time he spent on the inspection, but refused
to pay Ernest Eugene White, contending that it had complied with
its obligation under section 103(f) to ensure that one of the
walkarounds s~ffered no loss of pay.
The law of West Virginia gives an authorized representative
of miners walkaround rights similar to the federal rights of
walkarounds (West Virginia Code§ 22A-1A-12). The Supreme Court
of West Virginia has held that withholding compensation from a

1940

designated walkaround representative is prohibited by the state's
anti-discrim,ination statute. UMWA v. Miller, 291 S.E. 2d 673
(1982). Similarly, it is a violation of the federal
anti-discrimination law, section 105(c) (1) of the Act, 1 to
refuse to pay an authorized walkaround for his or her time spent
in accompanying a federal mine inspector. Truex v. Consolidation
Coal Co., 8 FMSHRC 1293, 1298, 1300 (198 ) ; and Stillian v.
Quarto Mining Co., 12 FMSHRC 932, 936 (1990).
The Secretary contends that as Chairman of the Mine Safety
Committee, Ernest Eugene White properly exercised his responsibility when, after being told by the MSHA inspector that only one
miners' representative was necessary, he proceeded to go on
"union business" in order to participate in the federal inspection. He later filed a section 105(c) complaint of discrimination under the Act. The Secretary contends that both sections
103(f) and 105(c) were violated by Peabody's failure to compensate White as a walkaround to accompany the federal inspector.
Peabody contends that since both the federal and state
inspectors were investigating the same roof fall, it complied
with the federal law by compensating only one miners' representative as a walkaround.
If Peabody had paid Mr. White, rather than Mr. Holstine,
there would have been compliance with section 103(f) and no
1 section 105(c) (1) of the Act 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 or because such miner, representative of miners or applicant
for employment has instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is
about to testify in any such proceeding, or because of the
exercise by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right
afforded by this Act."

1941

violation of section 105(c), since Mr. White was the designated
walkaround to accompany the federal inspector.
In that situation, the miners would have had to pursue their claim for
Mr. Holstine under state law.
If the state and federal inspectors had separately investigated the roof fall on different dates, there is no question that
Peabody would be required to compensate a walkaround for each
inspection under the respective federal and state laws.
I hold
that the fact that the inspectors appeared on the same day does
not alter this responsibility.
Under federal and West Virginia laws, the miners are
entitled to have their representatives participate in mine safety
and health inspections conducted by the respective government
agencies, whether or not a mine inspection is separately or
"jointly" conducted.
In any inspection, and particularly in an
accident investigation, the miners are entitled to be confident
that both federal and state agencies are fulfilling their obligations in determining what actually occurred and in reaching
proper conclusions as to measures necessary to prevent future
risks to miners.
In the case of a roof fall, for instance, each
agency's inspector will observe and analyze the facts through his
own eyes and in his own way. While federal and state inspectors
may discuss their observations with each other and with the other
members of the inspection party, they must reach their own independent conclusions. A miners' walkaround should not have to try
to monitor both a federal and a state inspector at the same time.
Each inspector has a separate statute and set of regulations to
enforce, and each has separate factual findings to make and
separate laws, orders, citations, etc., to consider.
The federal and state rights of miners to participate in
inspections should be read in harmony with each other, and not
interpreted so as to favor one benefit to the exclusion of the
other. Miners' representatives participating in a "jointly"
conducted inspection should be able to concentrate on participating effectively in the separate federal and state inspections
that are actually taking place.
Accordingly, I hold that Peabody violated sections 103(f)
and 105(c) (1) by refusing to compens2te Mr. White as a walkaround
to accompany the federal inspector.

2 After Citation No. 2723186 was issued, Peabody abated the
cited violation of section 103(f) by paying White compensation as
a walkaround in a federal inspection. However, this was not an
admission of a violation, and Peabody preserved its right to
challenge the citation before the Commission.

1942

Considering the criteria for a civil penalty in section
llO{i) of the Act, I find that a penalty of $20 is appropriate
for Peabody's violation of sections 103{f) and 105{c) {l) of the
Act.
ORDER
WHEREFORE IT IS ORDERED that:
1.

Citation No. 2723186 is AFFIRMED.

2.
Peabody Coal Company shall pay a civil penalty of $20
for its violation of sections 103{f) and 105(c) {l) of the Act.

tf)_.;(.t,.,;.,.
~~ ~tl\...W1ll1am Fauver
Administrative Law Judge
Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
{Certified Mail)
Thomas L. Clarke, Esq., Peabody Coal Company, P.O. Box 1233,
Charleston, WV 25324 (Certified Mail)
/fb

1943

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

22041

DCT 1 71990
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 90-75
A. C. No. 15-11417-03514
No. 2 Prep Plant

SHAMROCK COAL COMPANY, INC.,
Respondent

Docket No. KENT 90-60-A. C. No. 15-02502-03558
Shamrock No. 18 Series
DECISIOl.'l

Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,

u. S. Department of Labor, Nashville, Tennessee,
for the Secretary;
Neville Smith, Esq., Smith & Smith, Manchester,
Kentucky, for the Respondent.

Before:

Judge Weisberger

Statement of the Case
These cases are before me based upon Petitions for Civil
Penalty filed by the Secretary (Petitioner) for alleged violations by the Operator (Respondent) of various mandatory safety
standards set forth in Volume 30 of Code of Federal Regulations.
Pursuant to notice, Docket No. KENT 90-60 was heard in Richmond,
Kentucky, on June 7, 1990. John H. Linder testified for
Petitioner, and Gordon Couch testified for Respondent.
In a
telephone conference call on August 8, 1990, counsel for both
Parties waived their right to submit a Brief and Proposed
Findings of Fact.
On September 4, 1990, Petitioner filed a Joint Motion to
Approve Settlement concerning the Citations that are the subject
matter of Docket No. KENT 90-75.

1944

Stipulations
At the hearing, the Parties stipulated as follows:
"That
the proposed penalty will not affect the ooerations of the
business as would be appropriate, the size~of the business, and
that th~ Operator has indicated he will comply to nullify the
violations."
(sic) (Tr 6).
It was also stipulated that that the
mine in question produced 768,543 tons of coal in the 24 month
period preceding the citations at issue, and that Respondent's
total operations produced approximately 22 millions tons or coal
in that period.
Findings of Fact and Discussion
Docket No. Kent 90-75
Citation Numbers 2999139 and 3005741
Petitioner has filed a Joint Motion to approve a settlement
agreement in this case. A reduction in penalty from $121 to $40
is proposed.
I have considered the representations and documentation submitted in this case, and I conclude that the proffered
settlement is appropriate under the criteria set forth in Section
llO(i) of the Act. The Motion for Approval of Settlement is
GRANTED.
Docket No. KENT 90-60
Citation No. 3205519
On September 20, 1989, MSHA Inspector John H. Linder, while
performing an inspection of Respondent's No. 18 Mine, observed
four miners cleaning belts and inquired of them whether they had
self-contained self-rescue devices.
According to Linder, ·che
miners indicated that these items were located at the head-drive.
Linder then went to the area of the head-drive along with
Respondent's Inspector Hurchal Asher, and was able to locate only
one such device. Linder issued a citation, Number 3205519,
alleging a violatiorr of 30 C.F.R. § 75.1101-23 which requires
operators, in essence, to adopt an evacuation plan. The plan
provides for maximum distances between underground miners and the
location of self-contained self-rescue devices. Linder's testimony established that there were no self-contained self-rescue
devices tor each of the £our miners, who were cleaning belts,
within the maximum distance specified by the plan.
(Gx 3,
Pages 6-3).
Respondent did not contest Linder's testimony, and
indicated that it did not contest the violation.
I thus find
that Respondent herein did violate Section 75.1101-23, sucra, as
alleged.

1945

In the citation, Linder indicated that the.violation herein
was signif ica.nt and substantial. As set forth by the Commission
in Mathies Coal Company, 6 FMSHRC 1 (January 1984), the Commission
set forth the elements of a "significant and substantial" violation
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 co by
the violation;
(3) a reasonable likelihood that the
hazard contributed to will result in an injury; and,
(4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
(6 FMSHRC,
supra, at 3-4.)
Further, as explained by the Commission in u. s. Steel Mining
Comoany, 6 FMSHRC 1834, 1836 (August 1984), the third element of
the above formula set out in Mathies, supra, "requires that the
Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is injury." Linder,
in his testimony, did not specifically explain his conclusion in the
citation that the violation herein was significant and substantial.
Linder indicated that the self-contained self-rescue device supplies
oxygen for an hour, and thus would allow a miner using it to
breathe, should there be an explosion or liberation of methane gas.
He indicated that in contrast, the miners on the date in question
had filter type rescuers that did not provide oxygen, and which
could not be used for some poisonous gases. He indicated that belt
lines, which were present in the area in question, are a source of a
fire hazard as their rollers can lock at any time.
In this connection, he indicated that coal spilling off a belt can pile up over
the rollers causing them to heat, which would then cause a fire.
He indicated that there were additional ignition sources such as
the existence of electrical power lines along the sides of the
belt and electrical switches at different locations. With regard
to the liberation of -methane, he indicated that in the seam in
which the mine in question is located, "usually" methane is
potentially present in small amounts (Tr. 21). He also indicated
that in the subject mine, he was not aware of any methane releases
in the explosive range.
I find that although there were possible
ignition sources present, there is no evidence as to the specific
conditions of the sources, upon which to base a conclusion that any
ignition was reasonably likely to occur. Thus, although Chere was
~hazard to-the miners in the section in question, as a result
of not having been provided with rescuers that could supply oxygen
in the event of a £ire or an explosion, the evidence fails to

1946

establish that there was any "rea~onable likelihood" that the
hazard contributed to would result in an injury-producing event.
CU. S. Steel Mining Co., supra.)
Accordingly, I conclude that it
has not been established that the violation herein was significant
and substantial. Gordon Couch, Respondent's safety director, indicated that exposure to carbon monoxide at a level of a half percent
is immediately fatal.
He indicated that the self-rescuer device
worn by the miners in question is designed to protect, for up to an
hour, exposure to one percent of carbon monoxide.
Essentially,
according to Couch, if as a consequence of a fire or explosion,
there remained sufficient oxygen to support life, then the device
worn by the miners would allow them to breathe, and thus be able to
travel out of the mine.
Essentially, he indicated that the
self-contained self-rescue units, which did provide oxygen, were
not more effective.
He indicated that if a fire or explosion would
reduce the oxygen below the level needed to sustain life, then
neither the device worn by the miners nor the self-contajn
self-rescue units would help, as any miner present would not
survive such an event.
In contrast, he indicated that should a
fire or explosion leave sufficient oxygen to sustain life, then
either device would be adequate to allow the miners present to
escape.
I find that Respondent has not contradicted or rebutted the
testimony of Linder that the device worn by the miners can not be
used to filter out some poisonous gases.
Further, I find
persuasive the testimony of Linder that in a "big" fire the
self-contained self-rescue device, which allows one wearing it to
breathe oxygen, is "real important," and in an explosion one
would not have a chance without such a unit (Tr. 23).
Accordingly, I reject the testimony of Couch, and conclude that the
violation herein was moderately serious.
There is no evidence
before me to base a conclusion that Respondent herein either knew
or should have reasonably known that there were not sufficient
rescue devices, at the appropriate sites, as mandated by its fire
evacuation plan. Accordingly, I conclude that it has not been
established that Respondent herein acted with more than a low
degree of negligence with regard to the violation herein.
Taking
into account the remaining factors of Section llO(i) of the Act,
as set forth in the Parties' stipulations, I conclude that a
penalty of $100 is appropriate for the violation found herein.
Citation 3206149
On October 3, 1989, Linder cited Respondent for a violation,
of 30 C.F.R. § 75.1100-2(i)(l), alleging that certain required
fire fighting-equipment was not provided for the 005 working
section, which had exceeded a depth of 2 miles from the surface.

1947

At the hearing, Respondent conceded the violation and that
the mine did -produce more than 300 tons per shift and that the
area in question was at a depth of more than 2 miles.
Inasmuch
as Respondent does not contest the violation cited by Linder, I
find Respondent violated Section 75.ll00-2(i)(l), supra, as
alleged.
Linder indicated, in the citation, that the violation was
significant and substantial. He indicated, in his testimony,
that the purpose of the requirement for the provision of certain
emergency materials was to enclose an area to keep gas out in the
event of an explosion, or to conserve oxygen in the event of a
roof fall.
In this connection, he described the roof conditions
as average.
Also, he indicated that the belt conveyor was a
source for a fire along with equipment in the area, such as
continuous miners, scoops, motors, bolters, and high voltage
cables, all of which he termed as po~ential sources of fire.
He
indicated that an illness or injury could result in the event of
an explosion if the necessary materials were not present. However, he indicated that in the absence of an explosion, the lack
of such required materials in and of itself would not reasonably
likely cause an illness or injury.
Inasmuch as Linder did not off er any facts to substantiate
his conclusion, as set forth in the Citation, that the violation
was significant and substantial, and inasmuch as the record fails
to establish that the hazards contributed to by the. lack of the
emergency equipment, were not reasonably likely to occur, I conclude that the violation herein has not been established to be
significant and substantial.
(Mathies, supra.) Although some of
the required materials were available at the section, they were
being used at the face.
Further, according to Couch, certain
materials were not present in the quantities mandated by
Section 75.1100(a)(2)(i)(l), supra. Thus, he indicated that
there was lacking 1000 feet of lumber and five full tons of rock
dust.
He indicated that he doubted that the quantity of nails
required were present, and whether there were two complete unused
rolls of brattice cl.0th.
Inasmuch as the emergency materials, which were not on the
section, were to be used, as testified to by Linder and not
contradicted by Respondent, to conserve oxygen in case of a roof
fall and to keep gas away in the event of an explosion, I conclude that the violation herein was moderately serious.
According to the testimony of Linder, and not contradicted
by Respondent,-around May or June i990, he had spoKen to Steven
Shell, Respondent's safety inspector, with regard to emergency
materials, and the latter told him that " • • . he was going to
continue to work on it trying to get the materials." (sic)
(Tr. 44).
Shell also told Linder that another MSHA Inspector,

1948

Denver Rich, also spoke to him about having emergency materials
at the 2 mile depth. Thus, I find that Respondent was aware of
the necessity of having emergency material once the work section
had reached 2 miles from the surface. Accordingly, I find
Respondent was negligent to a moderately high degree in not
having the required materials present.
I conclude that a penalty
of $150 is appropriate for the violation found herein.
Citation 3206154
On October 5, 1989, Linder, while walking in a crosscut,
at the No. 9 Section, between Entries 3 and 4, observed dust in
the air, and "there wasn't nothing moving."
(sic) (Tr. 65).
Linder timed the movement of the air, by using a smoke club, at
4604 cubic feet per minute, between Entries 3 and 4 in the crosscut, which was the last crosscut in ~n inby direction before the
working face.
According to Linder, a roof bolter was lQcated at
the end of Entry No. 1, a continuous miner was located at the end
of Entry No. 5, and that these two areas were the working faces
or working places. The crosscut in which Linder measured the
movement of air, ran between Entries 1 and 6, and was the last
crosscut in an inby direction prior to the working faces.
At the
time of Linder's inspection, intake air entered the crosscut in
question from Entries 5 and 6, and then coursed in the direction
of Entry No. 1 where it turned outby and became return air. Air
also returned outby and down Entries 2 and 3 as curtains were
down in those entries. At the time of Linder's inspection, a
line curtain was nanging in the crosscut in question between
Entries 4 and 5. At the date in question, as explained by Couch,
the Entries 5 and 6 were development entries. However, he also
indicated that as part of the normal mining cycle, the continuous
miner takes 30 foot cuts and moves from Entries 5 to 4 to 3 to 2
to 1, respectively.
Linder issued a citation alleging a violation of 30 C.F.R.
§ 75.301 in that only 4604 cubic feet per minute was reaching the

last open crosscut between the No. 3 and 4 Entries. Section
75.301, supra, as pertinent, provides that the minimum quality of
air reaching the last open crosscut " • • • in any pair or set of
developing entries" shall be 9000 cubic feet per minute.
Essentially, it is Respondent's position that it did not
violate Section 75.301, supra, as the movement of air was not
tested at the proper place.
In this connection, Respondent
refers to the testimony of Couch that the air should have been
tested in the crosscut between Entries 4 and 5, as these were the
development entries. Couch also referred to the fact that the
crosscut, between Entries 4 and 5, was closed with a curtain.
Essentially, Couch also referred to Section 75.301, which set
forth its purpose in requiring a flow of 9000 cubic feet a minute.

1949

The stated purpose of this requirement is to render harmless
methane when.coal is being cut, mined or loaded. Accordingly,
Couch indicated that it would not be desirable to have air
flowing at 9000 cubic feet a minute to the left of Entry No. 5,
and going in the direction of Entry No. 1, as air leaving the
continuous miner in Entry No.5 would contain dust and fumes.
For
the reasons that follow, I do not agree with Respondent's arguments, and find that the areas, in which Linder tested the volume
of air, was in the last open crosscut, and the volume of air
tested was below the maximum required by Section 75.301, supra.
In Jim Walter Resources, Inc., 11 FMSHRC 21 (January 1989)
the Commission, in analyzing the term "last open crosscut," for
purposes of deciding whether a violation of 30 C.F.R. § 75.SOO(d)
occurred, took cognizance of the fact that a "crosscut" " . • • is
recognized to be a passageway or opening driven between entries
for ventilation and haulage purposes."
(Jim Walter, suo_ra,
at 26). Further, in Jim Walter, supra, at 26, the Commission
found that a "last open crosscut" is that open passageway connecting entries closest to the working face.
The Commission also
noted the following definition of "working face" as set forth in
Section 318(g)Cl) of the Federal Mine Safety and Health Act of
1977, and 30 C.F.R. § 75.2(g)(l) as follows:
"any place in a
coal mine in which work of extracting coal from its natural
deposit in the earth during the mining cycle is performed • • . • "
The Commission in Jim Walter, supra, was presented with the
issue, for purposes of applying 30 C.F.R. § 75.1710-1, of whether
certain equipment was "permissible." The Commission referred to
Section 318(i)(8) of the Act as defining "permissible electric
face equipment" as those electrically operated equipment taken
into or used inby the last open crosscut. With regard to the
term "last open crosscut" the Commission in Peabody Coal Con,.pany,
11 FMSHRC 4, 8 (January 1989), found as follows:
"In general,
the last open crosscut thus refers to the last (most inby) open
passageway between entries in a working section of a coal mine.
The last open crosscut 'is an area rather than a point of
line . . • '
Henry Clay Mining Comoany, 3 IBMA 360, 361 (1974>."
The Commission, in Peabody, supra, at pages 8-9, found that a
determination by the-Trial Judge of the boundaries of the area of
the last open crosscut to be demarcated by, inter alia "air flow
across the developing entries of a working section . . . • ," to
comport with commonly accepted mining terminology.
Applying the rationale of Peabody, supra, and Jim Walters,
suora, to the case at bar, I conclude that, inasmuch as during
the course of the normal mining cycle, coal will be extracted
from the face of No. 4 and No. 3 Entries, it follows that the
last crosscut before the face, between these two entries, is to
be considered the last open crosscut (See also, Consolidation
Coal Company, 3 FMSHRC 678, 685-686 (1981)) (Judge Cook).
As

1950

such, I find that Linder took air measurement readings at the
proper location. Respondent has not refuted the testimony of
Linder that, in the last open crosscut between the 3rd and 4th
Entries on the date in question, there were only 4604 cubic feet
per minute of air.
Inasmuch as 9000 cubic feet per minute is
required by Section 75.301, suora, I conclude that Respondent
herein did violate that section.
The Citation issued by Linder denotes the violation as being
significant and substantial. Linder did not testify at all with
regard to the facts upon which he based this conclusion.
Nor did
his testimony at all refer to the characterization of the violation as significant and substantial.
I thus conclude that it has
not been established by Petitioner that the violation herein was
significant and substantial.
(See Mathies, supra.)
According the the uncontradicted testimony of Lind~r, when
he observed that there was notning moving in the air in the last
open crosscut between the 3rd and 4th Entries, he told this to
the foreman Terry Couch. The latter indicated that a curtain had
been torn down by a scoop, and that he would replace those
curtains that have been denoted on Gx 9 with a red circle as
having been torn. The record does not indicate when the tearing
of the various curtains had occurred.
I conclude that it has not
been established that Respondent acted with more than moderate
negligence in connection with the violation.
As set forth in Section 75.301, supra, the purpose of sufficient ventilation is to " • • • dilute, render harmless and to
carry away, flammable, explosive, noxious, harmful gases, dust,
smoke, and explosive fumes." Thus, inasmuch as the measured air
of 4604 cubic feet per minute was significantly below the requirement in Section 75.301, supra, of 9000 cubic cubic feet per
minute, I conclude that the violation herein was of a moderately
high level of gravity.
I conclude that Respondent shall pay a
penalty of $175 for the violation found herein.
Citation 3206155
On October 12, 1989, Linder issued a citation alleging a
violation of 30 C.F.R. § 75.1101-10 in that the water sprinkler
system at the 005 working section head-drive did not stop the
belt conveyor or give an audible or visible alarm when tested.
In his testimony he explained that it was not hooked up to the
power source, and as such could not either stop the belt in the
event of a fire, or provide an audible or visible alarm.
Respondent di-d not contradict Linder' s testimony, and indicated
that it conceded the violation. Accordingly, based upon this
concession as well as the evidence before me, I conclude that
Respondent herein did violate Section 75.110-10, suora, as
alleged.

1951

In the Citation issued by Linder, it was indicated that the
violation was significant and substantial. Linder did not make
any reference in his testimony to his conclusion that the violation was significant and substantial. clor did Linder adduce any
facts in his testimony which would tend to support such a
conclusion.
Linder indicated that at the time the violation was cited,
the belt was in operation, and in the event of a fire, the
sprinkler system, being unplugged, would not have been able to
stop the belt and prevent the fire from spreading. He agreed
that coal dust is a hazard, and that belt rollers tend to stick
and heat up, and that if coal dust piles up around the rollers,
a fire could result.
He indicated that in such an event, fire
could spread to the belt drive, and "it could be carried around"
(Tr. 103).
I find this evidence insufficient to establish that
there was a reasonable likelihood of ·a fire occurring.
I thus conclude that it has not been established by Petitioner
that the violation herein was significant and substantial.
(See,
Mathies, supra: u. s. Steel Mining co.).
There is no evidence before me to indicate how long, prior
to Linder's inspection, the water sprinkler system was unhooked.
Nor is there any evidence to establish that Respondent either
knew, or should have been aware, of this condition. Hence, I
conclude that Respondent's negligence, in connection with this
violation, was only low. The sprinkler system extended only
SU feet along the head of the belt. However, in addition, there
was a fire sensor line all along the belt which would give a
warning siren in the event of a fire. Although this device would
not shut off the belt, it could be shut off at the head-drive by
a switch, or could be shut off from the outside.
I thus find
that the gravity of the violation was only moderate.
I conclude
that a penalty of $100 is appropriate for this violation.
ORDER
It is ORDERED that Respondent shall, within 30 days of this
Decision, pay $883~/ as a Civil Penalty for the violations found
herein.

~~

Avram weisberger
Administrative Law Judge

I/ Included in this figure is a penalty of $318 for the
violations alleged in Citation Nos. 3206153 and 3206157 which
were not contested by Respondent in its Answer.

1952

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

22041

OCT 1 7 \990

CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 90-11-M
A.C. No. 11-00136-05505
Valley Plant No. 7

MOLINE CONSUMERS COMPANY,
Respondent
DECISION
Appearances:

Rafael Alvarez, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois, for
the Petitioner;
James R. Papenhausen, Safety Director, Moline
Consumers Company, Moline, Illinois, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated 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 $160
for an alleged violation of mandatory safety standard 30 C.F.R.
§ 56.14107.
The respondent filed a timely answer contesting the
alleged violation, and a hearing was held in Moline, Illinois.
The parties were given an opportunity to file posthearing briefs.
The Petitioner opted not to file a briefr but the respondent
filed a letter stating its position. I have considered this
argument, as well as the arguments made by the parties during the
hearing in my adjudication of this matter.
Issues
The issues presented in this proceeding are (1) whether the
respondent violated the cited mandatory safety standard, and if
so, (2) the appropriate civil penalty to be assessed 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.

1953

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301, et seq.
2.

sections llO(a) and llO(i) of the Act.

3.

Commission Rules, 29 C.F.R.

§

2700.1, et seq.

stipulations
The parties stipulated to the following (Exhibit ALJ-1):
1. The Federal Mine Safety and Health Review Commission has
jurisdiction over these proceedings.
2.

Respondent's operation affects interstate comme£ce.

3.

The Valley Quarry does not ship out of Illinois.

4.

Respondent owns and operates the Valley Plant No. 7.

5. The Valley Plant No. 7 extracts limestone which is
crushed and broken.
6. Respondent worked 16,097 manhours from October 16, 1988
through October 16, 1989 at the Valley Plant No. 7.
7. Respondent worked 430,086 manhours from October 16, 1988
through October 16, 1989 at all of its mines.
8.

Moline Consumers Company is a corporation.

9. Respondent had four violations in the preceding
24-months ending on October 16, 1989.
10. On June 21, 1989 an Inspector from the Federal Mine
Safety and Health Administration conducted an inspection on the
Valley Plant No. 7.
11. On June 21, 1989, Citation No. 3258150 was issued to
respondent.
(ALJ Exhibit 1-(A).
12. On August 14, 1989, a section 104-b Order No. 3259254
was issued to respondent.
(ALJ Exhibit 1-(B).
13. A pr-0posed assessment was issued to respondent on
October 16, 1989.
(ALJ Exhibit 1-(C).
14. A proposed assessment of $160 would not affect respondent's ability to continue in business.

1954

Discussion
Section 104(a) non-S&S Citation No. 3258150, June 21, 1989,
cites an alleged violation of mandatory safety standard 30 C.F.R.
§ 56.14107, and the cited condition or practice states as
follows:
"The 'V' belt drive that powers the primary crusher
motor was not provided with a guard. The crusher was operating
at the time of this observation."
The inspector fixed the abatement time as 8:00 a.m.,
June 26, 1989.
On August 14, 1989, section 104(b) withdrawal Order
No. 3259254, was issued because of the alleged failure by the
respondent to provide a guard for the cited belt drive in question within the time fixed for abatement.
The order was terminated within 40 minutes after it was issued after the respondent
provided a guard for the cited piece of equipment.
-Petitioner's Testimony and Evidence
MSHA Inspector Jimmie L. Davis confirmed that he conducted
an inspection at the respondent's mine on June 21, 1989, and
after observing that the primary crusher V-belt drive was not
guarded, he issued the contested citation. He explained that
there was a gate at the crusher location, but it was partially
opened and unlocked.
He identified photographic exhibits P-1
through P-6 as the cited crusher in question.
The lock was a key
padlock, and the crusher was running and operating at the time of
the inspection, and the crusher operator was in the crusher booth
approximately 10 to 12 feet above the crusher location, as shown
in exhibit P-3 (Tr. 9-11).
Mr. Davis stated that the citation was non-S&S, but that the
unlocked gate presented a hazard in that "somebody could get in
through the pinch point of the V-belt drive" (Tr. 11). He cited
a violation of section 56.14107, because the guard was not in
place and a person could come in contact with the pinch point.
He confirmed that if-he had found the gate locked with a padlock,
rather than bolted shut, he would have still issued a citation
because MSHA's policy, as explained to him, is that padlocks are
not acceptable as guards.
If the gate had been bolted, he would
not issue a citation.
If the guard were in place around the
V-belt drive, and the gate were padlocked, he would not issue a
violation (Tr. 13).
Mr. Davis explained that a bolted gate would be acceptable
in lieu of a guard around the individual crusher components
because a bolted gate provides a barrier or barricade preventing
anyone from entering the crusher area. A bolt with a nut
inserted into the gate to hold it together so that a wrench would
be needed to remove it would be acceptable as a guard (Tr. 14).

1955

Mr. Davis stated that plant superintendent Jeff McGee, who
accompanied him during the inspection, advised him that the
crusher operator had the key to the padlock, but Mr. McGee could
not explain why the gate was unlocked, and he surmis~d that the
crusher operator had done some work greasing, oiling, or checking
the crusher and failed to lock the gate (Tr. 15).
Mr. Davis stated that he based his gravity finding of
"unlikely" on the fact that no one was in the crusher area at the
time he observed the cited condition, but he believed that an
injury would be "permanently disabling" if someone had come in
contact with the pinch point. If this had occurred, "an arm
could have been cut off or a leg. They would have been mangled
up" (Tr. 16). One person would be exposed to the hazard while
cleaning up or greasing in the crusher area (Tr. 16).
Mr. Davis stated that he based his "moderate" negligence
finding on the fact that the crusher gate was the only gate on
the property being used as a guard. All other moving machine
parts at the site were properly guarded with guards in place at
the individual pinch points, and in view of this, he believed
that the respondent should have known that the crusher V-belt
drive should have been guarded (Tr. 17).
On cross-examination, and in response to a hypothetical
question, Mr. Davis confirmed that if he had a storage shed on
his property, he would prefer to secure it with a padlock rather
than a bolt because he would be the only person with a key, he
could control access to the shed, and he would probably be the
only person there (Tr. 19). He confirmed that in the normal
course of business, no one other than the crusher operator would
be expected to be close to crusher. He confirmed that he did not
see the key and did not ask the crusher operator about it (Tr.
21) •

Mr. Davis explained that the use of a bolt provides a
barrier to the crusher area, and he conceded that any guarding
device which is easier to remove and replace would more likely be
replaced once it has-been removed (Tr. 24). According to his
training, one bolt would constitute a permanent barrier, as long
as it is the proper size and length so that it can be used with a
nut (Tr. 24).
Mr. Davis stated that even though the crusher operator was
in his booth, it was possible for someone else to gain access to
the crusher, and this would pose a hazard. Although he made no
determination -in this case that a supervisor would walk into the
area to visit the crusher operator, he believed that a supervisor
who is responsible for the safe operation of the crusher is
supposed to check it, and he could visit the crusher area with
the gate unlocked.
If he were to travel inside the gate area,

1956

near the unguarded pinch point, he would be exposed to a hazard
(Tr. 27). Mr. Davis confirmed that he interviewed the supervisor, but did not ask him if he ever walked into the crusher
area while it was operating (Tr. 27). When asked whether he made
any determination that anyone else would likely walk -through the
unlocked gate while the crusher operator was in his booth,
Mr. Davis stated that the only person present was the loader
operator, and if he had observed someone cleaning in the crusher
area, he would have issued an "S&S" citation (Tr. 28).
Mr. Davis identified a ladder shown in some of the photographs, and he explained that it is used by the crusher operator
to reach his booth. He stated that the ladder "goes by the place
in question" (Tr. 28). He stated that a supervisor has a duty to
conduct a walkaround inspection of the crusher area while it is
operating, but that he would not have to walk inside the gate
area to do this, and would not have to use the walkway into the
crusher area if he were simply there to.speak to the crusher
operator (Tr. 29).
MSHA Inspector Robert Flowers, confirmed that he visited the
site on August 14, 1989, to conduct a follow-up inspection with
respect to the citation previously issued by Inspector Davis and
that he was accompanied by Mr. McGee. Mr. Flowers stated that he
found the crusher V-belt drive unguarded, but could not recall
whether the gate in question was locked or open. He confirmed
that he issued a section 104(b) order because the crusher V-belt
drive had not been provided with a guard. Assuming the gate were
locked with a pad lock, he would still have issued the order
"because in our training and everything, we do not accept locked
gates with a padlock as a guard" (Tr. 35) • He would have
accepted a bolted gate as a suitable guard because "the guide is
that locked gates with a bolt become a permanent fixture" (Tr.
36).
If there were no gate, and there was a proper guard over
the belt drive, this would have been acceptable. The order was
terminated after the superintendent installed a guard over the
belt drive (Tr. 36).
Mr. Flowers stated that he informed Mr. McGee that MSHA does
not accept padlocked gates as a guard and that the belt drive
pinch point needed to.be guarded with a guard. Mr. McGee then
informed him that he had been instructed not to guard it and to
simply post warning signs on the gate. Mr. Flowers confirmed
that the signs were on the gate. Mr. McGee then called his
supervisor, Mr. Marshall Guth, vice-president for operations, and
Mr. Flowers spoke with him and explained MSHA's policy, and
Mr. Guth instructed Mr. McGee to guard the pinch point. The
guard was fabricated with two pieces of expanded metal and it was
installed within 40 minutes. Mr. Flowers found it acceptable
(Tr. 38) .

1957

Mr. Flowers confirmed that in the event he returned to the
site, and found a bolt through the gate, rather than a guard over
the belt drive, he would find this acceptable as long as it was a
proper bolt which required the use of wrenches to remove it (Tr.
39). Mr. Flowers confirmed that the crusher operator-was in his
booth at the time of his inspection (Tr. 40).
Mr. Flowers stated that in his experience as an inspector,
employees who work on a crusher would generally inspect it to see
that it is operating properly, and would perform maintenance work
on it to replace missing belts or to check for leaks (Tr. 40).
He confirmed that he has observed a primary crusher in operation,
and that people will inspect it from time to time during the day
while it is running. If an employee were to walk into the area
of an unguarded belt drive he would be exposed to a hazard while
inspecting the crusher during any daily work shift (Tr. 41).
On cross-examination, Mr. Flowers stated that he was standing on the walkway next to ·the gate, but did not consider himself
to be in any danger because he did not enter the crusher area.
Assuming that the gate were locked, he could not have accidentally contacted any of the crusher pinch points, and he would
have to go to a great deal of effort, or climb over the gate, to
reach any pinch points (Tr. 43). A superintendent or anyone else
walking around the plant would also experience the same difficulty in reaching the pinch point area. However, if the gate
were bolted, rather than padlocked, the amount of effort to reach
the pinch point area would be different because the individual
would have to obtain a wrench to remove the bolt, or he would
have to obtain a key if it were padlocked. Mr. Flowers agreed
that a guard would more likely be replaced if it can be replaced
easily instead of with difficulty. He also agreed that there was
no remote way anyone could accidentally contact the drive in
question with the gate locked (Tr. 44).
When asked about the practical difference between the use of
a bolt and a padlock, Mr. Flowers responded "it's that you have a
quicker access to the area with a padlock and a key than you do
with a bolt and nut on it. You can get in and out faster and
quicker" (Tr. 46). In response to further questions, he stated
as follows (Tr. 46-47):
·
JUDGE KOUTRAS: There is only one key and the operator
has specific policies and safety rules and controls,
limited access. Would that make any difference.
THE WITNESS:
incident.

We still have accidents from this type of

1958

JUDGE KOUTRAS:
If there is only one key and only one
man has.access to it, he's up in his. tower and the
thing is padlocked, there is no way anybody can get in
there.
Is that right?
THE WITNESS:

Should be.

JUDGE KOUTRAS:
If a guy is up in the control tower and
there is one bolt in it and somebody wanted to get in
it, all they would have to do is take a wrench and open
it up, and the fellow with the wrench can get into the
area.
THE WITNESS:

Yes.

JUDGE KOUTRAS: This theory about one bolt as opposed
to a padlock, does that come from the notion that
exposed pinch points and drives of this kind have t~ be
permanently guarded? In other words, instead of guarding the particular "V" belt drive here, you take a
larger guard, which is the size of a gate, and you put
it out by that. You put a bolt in it, and that's
sufficient. That provides a barrier from somebody
getting in there. Is that the theory?
THE WITNESS:
JUDGE KOUTRAS:
barrier then.
THE WITNESS:
JUDGE KOUTRAS:
padlock versus
THE WITNESS:

Yes.
And a padlock is not that kind of a
No.
Is that policy written anywhere, this
No.

MSHA Suoervisorv Inspector Ralph D. Christensen, Peru field
office, confirmed th9t he supervises Mr. Davis and Mr. Flowers,
and is aware of the citation and order issued in this case. He
stated that MSHA's policy is not to accept padlocks on gates as
equipment guards. However, if the gate were bolted, it would be
acceptable because "it becomes a barrier" (Tr. 51). He explained
that a padlock is not acceptable because an operator can readily
use a key and enter the area while a crusher is running, and that
in his personal experience he has found numerous occasions where
the locks are_not locked. He stated that when he was hired as an
inspector in 1978, he was informed by his supervisor during his
orientation that a padlock is not an acceptable way of providing
a guard for a pinch point. He confirmed that he has consulted
with his district manager and with MSHA's chief of safety in

1959

Arlington, Virginia, and they confirmed that padlocks are absolutely not acceptable as a guarding device (Tr. 53).
Mr. Christensen stated that if the gate were locked and the belt
was not guarded "we would have issued a violation because our
history shows that they leave the lock unlocked and people can
enter into the area at any time" (Tr. 53).
Mr. Christensen explained the purpose of a bolt as follows
(Tr. 54) :
A. The bolt on a gate turns the gate and that fence
area into a wall, a barrier that's not readily accessible for employees to walk in there while it's
running.
They have to work on it to get in there,
perhaps like a mechanic going in to service equipment.
They unbolt guards to get in that equipment, and we
would view this then as unbolting to get into the
equipment to maintain it.
Q. Are you assuming that the equipment would be shut
down?
A. They're required to lock out before they go into
the area to do maintenance work.
Q.
In other words, by "lock out," the crusher would
not be operating, right?
A.

Right.

Mr. Christensen confirmed that in the event a bolted gate is
used to guard equipment such as a V-belt drive, if the gate is
unbolted, this would constitute a violation of the standard cited
in this case (Tr. 55).
On cross-examination, Mr. Christensen confirmed that bolted
guards are left off "all the time" and that people do leave them
off notwithstanding any MSHA or operator policies requiring them
to be replaced (Tr. _55).
In his opinion, access to a particular
area can be better controlled by the use of a bolt rather than a
padlock because an employee with a key can gain access into the
area any time while the drive is running, but a crusher operator
would not have a wrench because his duty is to see to it that the
crusher does not become plugged and that the material is flowing.
Maintenance men would normally carry wrenches. He estimated that
it would take 5 seconds to unlock a padlock with a key, and 10 to
15 seconds to_ remove a bolt with a wrench (Tr. 56). The use of a
bolt would restrict access to a crusher operator who normally has
no business in the area because a maintenance man would generally
take care of the drive unit (Tr. 57).

1960

In the case of electrical lockout devices, Mr. Christensen
stated that padlocks are used instead of bolts because the electrical boxes are designed for that purpose.
If a box were
designed for the use of a bolt, the use of the bolt would be
illegal because anyone could remove the bolt at anytime and the
person locking out the box with a bolt would not have control
over anyone else removing it. By providing a lock, the person
locking out the box has the only key and he is the only person in
control (Tr. 58). A crusher operator with a key can unlock the
gate and enter the area where the drive is running, and with a
wrench, he could also enter the area, but it might take
10 seconds longer to do so (Tr. 58).
Oscar W. Ellis, respondent's president, testified that he
has a degree in mining and engineering from the University of
Arizona, and that he designed the primary crusher operation in
1980. He stated that the crusher platform is approximately
6 feet long and 16 feet wide, and he.described the equip1nent
located in that area (Tr. 62). He stated that the area was
designed to provide adequate walking clearances and that it has a
2-foot wide walkway around the equipment to provide ready access
to the equipment. He stated that "it would be stupid" for anyone
to walk around that area with the crusher in operation because
the pinch point would be dangerous, and he agreed that if someone
were to circumvent the gate he could come in contact with a pinch
point similar to a situation where an attached guard is removed
from a particular pinch point (Tr. 64).
Mr. Ellis confirmed that he would expect the crusher operator to have a key to the padlocked gate in question, but he did
not know who else would have one. He confirmed that a superintendent or maintenance personnel would not have a master key to
all of the plant locks because many of the locks are not associated with master keys. He did not know whether extra keys to the
gate in question would be available to anyone other than the
crusher operator (Tr. 65). Mr. Ellis believed that the chances
of someone being accidentally injured with the use of a padlocked
gate or properly-designed guard over the pinch point "is virtually zero" (Tr. 65)._ He further believed that the possibility of
any injury is greater by using a guard over the belt drive
because such a gua~d would probably weigh 50 pounds and someone
could twist their back lifting it if they were bent over and
picked it up the wrong way (Tr. 66). He also believed that
someone would more likely replace a guard which has been removed
if its easier to do so (Tr. 67).
Mr. Ellis agreed that a bolt would be adequate, but he did
not believe that it was as safe as using a lock. He alluded to
equipment guards used in quarries which are provided with hinges
and twist locks by the manufacturer to prevent access to the
equipment. He agreed that if a bolt were taken off the gate, it
would be the same as leaving a guard off, and that it would need

1961

to be replaced. He confirmed that the only time anyone would be
in the area which was cited in this case would be for the purpose
of performing maintenance work, but the crusher would not be
running and it would be locked out. He confirmed that his company policy is to have the gate locked and there is very little
need for maintenance in that area. The gates were part of the
initial design of the crusher plant and they were installed
before the plant went into operation (Tr. 69). He pointed out
that he tries to interpret MSHA's regulations "as best we can"
and that he tries to provide a solution which is both practical
and safe to prevent accidents (Tr. 70).
Mr. Ellis stated that at the time Mr. Davis conducted his
inspection he (Ellis) was unhappy that the gate was unlocked and
that Mr. McGee was specifically instructed to make sure the gate
was always locked in accordance with company policy (Tr. 71). At
the time Mr. Flowers visited the site, the gate was locked and
warning signs were posted to emphasize the point to anyone who
might go into that area (Tr. 71). He was not certain when any
discussion with Mr. Davis over the use of padlocks may have taken
place, and he believed that he had complied with the law and
should not have been cited by Mr. Flowers in August. He also did
not believe that the use of a bolt rather than a lock made much
sense because he would have better control over who would go in
and out of the cited area by using a lock rather than a bolt (Tr.
72). He confirmed that he now understands MSHA's theory with
respect to the use of a bolt, but believes that it is incorrect
(Tr. 73). He pointed out that there are many hinged equipment
guards in use in quarries which are held in place by twist locks
and they are not bolted (Tr. 73).
Mr. Ellis stated that a supervisor or foreman is instructed
to make a complete inspection of the mine every day, and that he
would walk around the crusher area and talk to the crusher operator. He could walk up to the booth by using the ladder, but he
would not step off onto the platform, but would go directly to
the booth. He confirmed that Mr. McGee is also a mining engineer
and is a good and knowledgeable superintendent and would not
tolerate any unsafe_conditions. Mr. Ellis did not dispute the
fact that the gate was unlocked when Mr. Davis conducted his
inspection, and he guessed 'that someone had gone into the area
but was careless after leaving the area and did not lock the gate
when he left (Tr. 75).
Respondent's Testimony and Evidence
James Papenhausen, respondent's safety director, testified
that company policy requires that a particular piece of equipment
be deenergized or locked out at its power source before any guard
is removed so as to eliminate the chance of an accidental
startup. He confirmed that the respondent has disciplinary
measures, including discharge, in place which are used in the

1962

case of any employee violating company or federal policies
regarding th_e removal of guards in areas where they may be working. He cited an example of an employee who was discharged for
refusing to wear safety glasses (Tr. 78).
Mr. Papenhausen stated that prior to Mr. Flowers' inspection, the superintendent was instructed to lock the gate and the
signs were put in place before that inspection. He confirmed
that after that inspection, makeshift guards were installed to
abate the citation, and approximately 3 days later after telephone conversations and an exchange of correspondence with
Mr. Christensen, the guard was removed from the crusher belt
drive after the respondent was advised that a gate would be
acceptable to MSHA if the lock was removed and replaced with a
bolt. He confirmed that this was done. He also confirmed that
the respondent also installed bolts on similar gates which are
used at all of its mine sites to avoid being continually cited
for using padlocks. However, in addition to the bolts, ·-the
respondent also uses padlocks in keeping with its policy (Tr.
80). He confirmed that the signs are merely to remind employees
that they are not allowed in the crusher areas in question (Tr.
81). Mr. Papenhausen pointed out, however, that the respondent
operates mines in st. Louis, which are under the enforcement
jurisdiction of another MSHA district, and in "exactly the same
situation" as this case, and it uses padlocks rather than bolts •
. One mine has been in operation for 2 years, has had five or six
MSHA inspections, and it has never been cited for using padlocks
and the issue has never come up (Tr. 87-88).
Mr. Papenhausen stated that in no instance has the respondent ever guarded large plant areas with gates. The guards are
always in close proximity to the crusher equipment and enclose a
natural area immediately around the drive (Tr. 82). He made
reference to MSHA's "guide for guarding" and pointed out that the
respondent tries to take into consideration all of the guarding
criteria in order to provide adequate guards (Tr. 82).
Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
safety standard 56.14107, which provides as follows:
§

56.14107

Moving machine parts.

(a)_ Moving machine parts shall be guarded to
protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury.

1963

(b)
Guards shall not be required where the
exposed moving parts are at least seven feet away from
walking or working surfaces.
The facts in this case reflect that Inspector Davis cited
the respondent with a violation of section 56.14107, on June 21,
1989, after observing that the belt drive which powered the
primary crusher was not guarded while the crusher was in operation. Although the drive was not physically guarded at the drive
location, the respondent had a well constructed gate in place at
the entranceway of the platform area where the drive was located.
The respondent's policy required that the gate be kept locked
with a padlock at all times while the crusher and drive were in
operation, but at the time of the inspection, the gate was
unlocked and opened, allowing anyone to freely enter the
unguarded crusher drive area.
Inspector Davis established June 26, 1989, as the abatement
date for the violation.
Inspector Flowers went to the mine on
August 14, 1989, for a follow-up inspection, and after finding
that the previously cited drive was not guarded, and that "no
action was taken to correct the violation," he issued a section
104(b) order for non-compliance. The respondent's credible and
unrebutted testimony establishes that the gate was locked with a
padlock, and that the key was in the possession of the crusher
operator who was in his control booth which was elevated above
the crusher platform and physically separated from the platform
by the locked gate. The violation was abated and terminated
after the respondent promptly fabricated and installed a guard
over the crusher drive. Several days later, and after further
contacts with an MSHA supervisory inspector, the respondent was
advised that it could continue to use the gate as a guarding
device for the drive as long as the gate was secured by a bolt,
rather than a padlock, and that this would suffice as a means of
compliance with the standard. The respondent installed a bolt on
the gate, but removed the guard which had been installed over the
drive, and also posted signs. The respondent also continued to
use a padlock on the gate, in addition to the bolt.
-·

The respondent takes the position that the use of substantial gates with padlocks, coupled with a lockout procedure to
guard and prevent injuries at its crusher drives, the posting of
warning signs forbidding access to these areas, and severe disciplinary action against employees who violate its policy in this
regard, is the most efficient and effective means for preventing
accidents.
Respondent suggests that in these circumstances, the
use of padloc~ed gates as a means of guarding its crusher drives
complies with the requirements of section 56.14107. The respondent also asserted that the drive areas are in no-ones work area
or even in the path of anyone who would be travelling to the area
to work, and that the equipment is locked out for inspections and
maintenance.

1964

MSHA takes the position the cited crusher belt drive was not
guarded at the time Inspector Davis conducted his inspection and
issued the citation. Although the evidence in this case reflects
that MSHA would accept a gate as compliance with the-guarding
requirements of section 56.14107, even though the particular
equipment pinch point is not physically and individually guarded
at its immediate location, MSHA's position is that the gate must
be secured with a bolt and nut rather than a padlock.
In Yaple Creek Sand & Gravel, 11 FMSHRC 1471 (August 1989),
Judge Morris found that a gate 4 to 5 feet from an unguarded
chain drive assembly on a hopper feeder conveyor belt did not
satisfy the guarding requirements of section 56.14001 (redesignated 56.14107).
In Walker Stone Company, 12 FMSHRC 256
(February 1990) , Judge Fauver found that a stop cord located over
the unguarded portion of a conveyor belt tail pulley did not
satisfy the guarding requirements of section 56.141001, and he
observed that the standard does not provide for the use-~f a stop
cord in lieu of guarding.
The evidence in this case establishes that the cited belt
drive was not individually physically guarded at the time of the
inspection, and the gate which served as guard was unlocked and
opened, thereby allowing free access to the crusher belt drive
area immediately inside the gate. The respondent has conceded
that the cited belt drive was not guarded as required, and that
the cited condition constituted a violation of section 56.141107.
Under all of these circumstances, I conclude and find that a
violation has been established, and the citation IS AFFIRMED.
In its pleadings (answer), filed in this case, the respondent asserted that the use of a guard large enough to cover the
particular drive in question would create a hazard every time it
were removed and replaced because it would weigh several hundred
pounds and was extremely bulky, and would subject employees to
pushing and pulling injuries. The respondent also maintained
that requiring such a guard would make repairs extremely time
consuming in requiring additional people and equipment to simply
remove the guard, therefore greatly increasing their exposure to
any number of adpitional hazards associated with lifting heavy
bulky objects. Mr. Ellis, who designed the crusher operation,
confirmed that someone could twist their back while lifting the
guard, but he estimated that a good substantial guard would weigh
fifty (50) pounds.
In justifying the use of a padlock, the respondent relied on
MSHA's Guide to Equipment Guarding, and it included selected and
highlighted portions of this publication as part of its answer,
and made reference to it in the course of the hearing. The
highlighted publication language reads as follows:

1965

The installation and maintenance of machinery and
machine guards are governing factors in controlling and
preventing accidents and injuries. In devising protection against moving machinery and machine parts, the
goal should be to make it as effective as
-possible. . . .
·
An effective machine guard should have certain characteristics in design and construction. Such a guard
should:
1.

Be considered a permanent part of the
machine or equipment.

2.

Afford maximum positive protection.

3.

Prevent access to the danger zone during
operation.

4.

Be convenient; it must not interfere
with efficient operation.

5.

Be designed for the specific job and
specific machine, with provisions made
for oiling, inspecting, adjusting, and
repairing machine parts.

6.

Be durable and constructed strongly
enough to resist normal wear.

7.

Not present a hazard in itself.
(Page 3}.

It is recognized that a given situation--a hazardcreating motion or action--may frequently be guarded in
a number of ways, several of which may be satisfactory.
The selection of a guarding method to be used may
depend upon a number of things--space limitations,
production methods, size of stock, frequency of use,
and still other factors may be important in making the
final decision. Moving machine parts, nip points and
pinch points must be guarded individually rather than
restricting access to the areas by installing railings.
It is not the intent of this guide to suggest which
method of guarding is the best for a given situation,
but rather to show that there are a number of ways to
guard each different condition. This will be done by
illustrating typical situations which may be guarded by
a variety of methods.
(Page 4}.

1966

Remote areas protected by location need not be guarded.
However, if work is performed at such location as shown
in figure 5, the equipment must be deenergized and
locked out and a temporary safe means of acces~_
(ladder) provided before any work is started.
(Page 8).
MSHA's Program Policy Manual, Volume IV, pg. 55, July 1,
1988, contains no reference to the use of padlocked or bolted
gates as a means of complying with the guarding requirements of
former section 56.14001. However, the policy does state the
following:
"The use of chains to rail off walkways and travelways near moving machine parts, with or without the posting of
warning signs in lieu of guards, is not in compliance with this
standard."
Although the respondent's reliance on the information found
in the aforementioned guarding guide may be considered
weighing the respondent's negligence and good faith compliance, I
reject its reliance on this guide as an absolute defense to the
violation.
I have reviewed a complete copy of this publication,
and I find absolutely no reference to the use of gates, padlocked
or bolted, as an acceptable means of guarding or complying with
the guarding standard in question.
Indeed, some of the language
found in this publication seemingly makes it clear that equipment
and components thereof which present a hazard must be individually guarded by guards affixed to the particular piece of equipment rather than to the general area where the equipment may be
located. See the last paragraph at page 3, which states
"· . • it must be kept in mind that protective guards placed
around the moving machinery should completely enclose the moving
part and should be positioned so that the moving equipment or
pinch point which presents a hazard cannot be reached." See also
the fifth paragraph at page 4, which states "Moving machine
parts, nip points and pinch points must be guarded individually
rather than restricting access to the areas by installing
railings."
(Emphasis supplied).

in

I have some difficulty comprehending MSHA's theory that the
use of a bolt and nut to secure a gate, as opposed to a padlock
with a key, would make it more difficult for someone to gain
access to a crusher area where an unguarded belt drive was
located.
It seems to me that the use of a padlock in a situation
where there is only one available key which is in the possession
of the crusher operator at all times, would limit access to the
hazardous area to that one individual, and would preclude any
unauthorized entry by anyone else. However, the use of a bolt
and nut inserted through a hole drilled in the frame of the gate,
would allow any number of people with an ordinary or household
wrench, which I assume are readily available at rock quarries, to
readily access the area if they are so inclined.

1967

In commenting on the permissible use of padlocks to secure
or lock out electrical boxes, Inspector Christensen distinguished
the use of those locks from a padlock used to secure a gate on
the ground that an electrical box is specifically designed to
accommodate the use of a lock, and the individual locking out the
box always has control of the key, thereby excluding anyone else
from opening the box. Mr. Christensen stated that it would be
illegal to use a bolt to secure an electrical box, even if the
box were specifically manufactured to accommodate a bolt. He
reasoned that anyone could remove the bolt at anytime, and the
person who initially locked out the box with a bolt would have no
control over anyone who may remove it. Quite frankly, I fail to
see the logic in the rather contradictory distinctions made by
Mr. Christensen in the two scenarios presented.
The introductory statement found on the first page of MSHA's
guide to guarding reflects that the information found therein is
intended to assist industry, labor, and MSHA inspectors-'i_n
obtaining uniformity throughout the mining industry. On the
facts of this case, and notwithstanding the total lack of any
references to the use of bolted gates as an acceptable means of
guarding equipment, MSHA has apparently, in one district,
accepted the use of gates, as long as they are secured by a bolt
and nut, rather than a padlock. In order to achieve clear and
unambiguous uniformity, I would respectfully suggest that there
is need for MSHA to clarify and amend its policy and guide so as
to insure even-handed enforcement among its various enforcement
districts. Further, if MSHA believes that the use of a bolted
gate is a recognized and acceptable means of guarding an equipment area, it should consider adopting and incorporating compliance criteria as part of its Part 56 regulations so that mine
operators who are subject to civil penalty sanctions are fairly
and uniformly put on notice of what is required of them for
compliance. The disclosure of information clarifying the regulation will serve the goal of enforcement by encouraging knowledgeable and voluntary compliance with the law. See my comments in
Massey Sand and Rock Company, 1 FMSHRC 545, 554-555 (June 18,
1979), Commission review denied, 1 FMSHRC (July 1979).
Although the respondent has not specifically raised an
estoppel defense in this case, Mr. Papenhausen alluded to the
fact that another MSHA enforcement district has not cited the
respondent for securing gates used to guard equipment with padlocks rather than bolts. Although I believe that MSHA should be
consistent in the interpretation and application of any mandatory
standard, the fact that one district has opted not to cite the
respondent under circumstances similar or identical to those
presented in this case, may not serve as a defense to the violation issued in this case. See: Ferndale Ready Mix & Gravel,
6 FMSHRC 2154 (September 1984), and the cases cited at 6 FMSHRC
2159; J & R Coal Company, 3 FMSHRC 591 (1981); Burgess Mining and

1968

Construction Corporation, 3 FMSHRC 296 {1981); Price River Coal
Company, 5 FMSHRC 1734 (1983).
The respondent's suggestion that the cited crusher drive was
guarded by location is likewise rejected.
I find no--credible
evidence to support any such conclusion. Although the location
of the drive may be relevant to the question of gravity or negligence, it may not serve as a defense to the violation. The cited
standard requires the guarding of moving machine parts that can
cause injury. The evidence in this case clearly establishes that
contact with a moving crusher drive would result in serious
injuries. Although MSHA has not rebutted the respondent's credible testimony that the crusher is locked out before any maintenance work is performed in the area, and no one is usually in
the area when the crusher is in operation, Mr. Ellis did not
dispute the fact that the gate was open and unlocked when
Inspector Davis conducted his inspection, and Mr. Ellis surmised
that someone had entered the area but.was careless after leaving
and failed to lock the gate when he left.
Inspector Davis testified that Mr. McGee told him that someone had probably done some
work in the area greasing, oiling, or checking the crusher, but
failed to lock the gate (Tr. 15).
Inspector Flowers, an inspector with 12 years of experience,
including the inspection and observation of operating crushers,
testified credibly that a supervisor generally will observe an
operating crusher on a daily basis during each shift to ascertain
that it is operating properly, and that if he were to walk into
the area he would be exposed to a hazard if a belt drive were not
guarded. Mr. Ellis conceded that if anyone opened the gate and
walked into the area, he could get hurt if he contacted the
unguarded drive (Tr. 64).
Although Inspector Davis failed to develop any evidence as
to who may have been in the crusher area when he found the gate
unlocked, and failed to ascertain whether any maintenance men or
other personnel were in the area immediately prior to his inspection, Mr. Ellis confirmed that a supervisor or foreman is
expected to make complete inspections of the plant each day,
including a walkaround of the crusher area. Mr. Ellis also
confirmed that the prusher platform area was specifically
designed to provide walking clearances around the crusher equipment, and was provided with a designated walkway to provide ready
access to the equipment. He conceded that anyone walking around
in that area while the crusher was in operation would be exposed
to the dangerous pinch points. Although Mr. Ellis believed that
it would be stupid for anyone to be in the area with the crusher
running, I believe that it could very well be that this "stupid"
individual was the same "careless" individual who went into the
area and left without locking the gate. Mr. Ellis conceded that
Inspector Davis acted properly in citing a violation, and that

1969

the respondent violated the cited standard by leaving the gate
unlocked (Tr. 31, 42).
Although the respondent has achieved compliance __ in this case
by installing a bolt in the gate used to guard its crusher belt
drive, it has gone one step further and continues to use a padlock as an additional means of securing the gate, and has posted
warning signs on the gate. The belt drive itself continues to
remain individually unguarded.
It seems obvious to me from the
record in this case that the respondent is not too enchanted with
MSHA's view that a gate may be used, as long as it is bolted, but
that padlocks are unacceptable. Under the circumstances, the
respondent may wish to consider initiating a modification proceeding pursuant to section lOl(c) of the Act, seeking a variance
to continue its use of padlocks as a means of achieving compliance with section 56.14107.
History of Prior Violations
The parties stipulated that the respondent was issued four
violations during the preceding 24-month period ending on
October 16, 1989. The petitioner offered no further evidence
with respect to the respondent's compliance record, and there is
no evidence of any prior guarding citations. Under the circumstances, I conclude and find that the respondent has a good
compliance record, and I have taken this into consideration in
this case.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
The record reflects that the respondent operates a limestone
mining and crushing operation, and that it has nine employees at
its Valley Plant No. 7, including a superintendent and a scale
person (Tr. 76).
I conclude and find that the respondent is a
small operator. The parties stipulated that the payment of the
proposed civil penalty assessment will not adversely affect the
respondent's ability to continue in business.
Gravity
Inspector Davis' non-S&S finding was based on his conclusion
that it was unlikely that anyone could have been injured at the
time of the inspection because he observed no one in the crusher
area other than the crusher operator who was in his control
booth. Although it is true that anyone contacting the belt drive
could be injured, the respondent's unrebutted evidence establishes that the crusher is deenergized and locked out when any
work is performed in the area, that the gate leading to the
crusher drive area is normally locked in accordance with company
policy, and the key is normally kept in the operator's
possession.

1970

Although the petitioner suggested that a supervisor or
foreman may venture into the platform drive area where the
crusher was located, Inspector Davis made no inquiries in this
regard and developed no evidence to establish the liKelihood of
anyone being inside the gate area while the crusher was in operation. Further, I find no credible evidence to establish that
anyone going and coming from the operator's crusher control booth
by means of a ladder shown in the photographic exhibits would
likely be inside the platform area where the crusher drive was
located. Under all of these circumstances, I conclude and find
that the violation was non-serious.
Negligence
Inspector Davis confirmed that he based his moderate negligence finding on the fact that with the exception of the gate
which was used as a means of guarding the crusher belt drive, the
respondent had guards installed over all of its remaining moving
equipment at the pinch points. Although the respondent relied on
MSHA's guarding guidelines in concluding that it could use a
padlocked gate as a guarding device, as noted earlier, the guidelines made no mention of the use of padlocks, and they indicate
that exposed moving equipment pinch points should be physically
guarded individually. However, I believe that the respondent's
negligence is mitigated by the fact that MSHA has accepted a
bolted gate as a suitable guard, and I conclude and find that it
was not totally unreasonable for the respondent to believe that
padlocking the gate with a key which is normally kept in the
possession of the crusher operation was sufficient compliance
with the cited standard. However, since the gate was unlocked
and open at the time of the inspection, I conclude and find that
the respondent knew or should have known that the belt drive was
unguarded. Under all of these circumstances, I conclude and find
that the respondent's failure to exercise reasonable care to
insure that the belt drive was guarded while the crusher was in
operation constitutes ordinary negligence.
Good Faith Compliance
Inspector Davis confirmed that he fixed the abatement time
of June 26, 1989. However, no testimony was forthcoming from the
inspector with respect to whether he specifically made it clear
to Mr. McGee that the use of a padlocked gate was unacceptable.
Inspector Flowers testified that at the time he issued the order
the pending off ice file contained no inspection field notes
incident to Mr. Davis' prior inspection, and he simply relied on
a copy of the-citation which reflected that the drive motor was
not guarded. Mr. Flowers confirmed that Mr. McGee told him that
he was instructed not to guard the belt drive and to simply post
warning signs on the gate, and Mr. Flowers confirmed that the
signs were in fact posted •.

1971

Mr. Ellis testified that after the citation was issued,
Mr. McGee was instructed to insure that the gate was kept locked
at all times in accordance with company policy. Mr. Ellis was
unsure as to when Inspector Davis may have informed management
that a lock on the gate would not suffice as compliance with the
cited standard. Mr. Ellis explained that in his view, the
failure to lock the gate at the time Mr. Davis conducted his
inspection was "just like leaving the guard off" and he believed
that compliance was achieved at the time Mr. Flowers inspected
the site and issued the order because the gate was locked and
signs were added to emphasize the point to anybody who might go
into the area (Tr. 71). He also explained that when the respondent was told that a bolt would be better than a lock, it made no
sense to him because he believed that better control could be
achieved by the use of a lock rather than a bolt (Tr. 72).
Mr. Ellis also considered the fact that various types of equipment are guarded by devices which are hinged and secured by twist
locks provided by the manufacturers (Tr. 73) .
The section 104(b) order issued by Inspector Flowers is not
directly in issue in this case and there is no evidence or inf ormation of record as to whether or not the respondent filed any
separate contest of that order within the required time period.
However, the order is relevant to the proposed civil penalty
assessment made by MSHA in -this case since it seems obvious that
MSHA took the order into consideration as part of its proposed
civil penalty assessment, particularly with respect to the question of negligence and good faith compliance.
The evidence in this case establishes that the respondent
abated the order within 40 minutes of its issuance and promptly
installed a guard at the cited belt device. Within a few days,
the respondent was allowed to remove the guard, and in lieu of an
individual guard, was permitted to continue to use the then
bolted gate as a means of guarding the belt drive. In addition
to the bolted gate, the respondent continued to keep the gate
padlocked and posted with warning signs.
Having viewed Mr. Ellis during the course of the hearing, he
impressed me as a credible and responsible safety-conscious
individual. On the facts of this case, and taking into account
the aforementioned mitigating circumstances under which the
respondent continued to use a padlocked gate as a means of guarding the cited belt drive, I conclude and find that the respondent
ultimately achieved good faith compliance in correcting the cited
condition.
Civil Penalty Assessment
on the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found

1972

in section llO(i) of the Act, I conclude and find that a civil
penalty assessment of $50 is reasonable and appropriate for the
contested section 104(a) citation which I have affirmed in this
case.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
of $50 for section 104(a) citation No. 3258150, June 21, 1989,
30 C.F.R. § 56.14107. 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.

~-~~Adm1n1strat1ve Law Judge

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)
Oscar W. Ellis, President, James R. Papenhausen, Safety Director,
Moline Consumers Company, 1701 Fifth Avenue, Moline, IL 61265
(Certified Mail)
/fb

1973

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

22041

OCT 181990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 90-36-M
A.C. No. 04-04684-05505

v.
Peters Trucking Plant
PETERS TRUCKING COMPANY,
Respondent
DECISION
Appearances:

George B. O'Haver, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California, for the Petitioner;
Leo M. Cook, Esq., Ukiah, California, 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 in
the amount of $1,834 for ten (10) alleged violations of certain
mandatory safety standards found in Part 56, Title 30, Code of
Federal Regulations. The respondent filed a timely answer and a
hearing was held in Ukiah, California. The parties waived the
filing of posthearing briefs, but I have considered their oral
arguments made on the record during the course of the hearing in
my adjudication of this matter.
Issues
The issues presented in this case are (1) whether the
conditions or practices cited by the inspector in the contested
citations constitute violations of the cited mandatory safety
standards, and (2) the appropriate civil penalties to be assessed

1974

for the violations, taking into account the statutory civil
penalty assessment criteria found in section llO(i) of the Act,
and any mitigating circumstances connected with the violations.
Additional issues raised by the parties are 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.

3.

Commission Rules, 29 C.F.R.

§

§

820(i).

2700.1 et seq.

Petitioner's Testimony and Evidence
MSHA Inspector Michael E. Turner testified that he--conducted
his initial inspection of the respondent's mine site on
September 13; 1988, and he confirmed that the crusher plant was
shutdown at this time and that "several employees were in the
process of building guards" (Tr. 8). He confirmed that he
considered the citations to be "non-S&S" because he observed no
exposures to any hazards because the plant was down and he
observed no employees walking about the plant while it was in
operation.
With regard to Citation No. 3285843, concerning the lack of
guarding for the jaw crusher tail pulley and mechanical belt,
Mr. Turner stated that he fixed the abatement time of
September 20, 1988, after discussing it with Mr. Peters, and that
Mr. Peters gave him that date as the time within which he could
make the changes and corrections required. Mr. Turner further
stated that when he returned for a follow-up compliance inspection on May 31, 1989, he found that "no apparent effort had been
made to correct the condition that was previously cited" on
September 13, 1988, and the crusher appeared to be in the same
condition. When asked whether he spoke to Mr. Peters on May 31,
Mr. Turner replied as follows:
A.
I am sure I did. The thing of it is, Mr. Peters
quite often is not there and I spoke with Mr. Bagley so
I can't really say that I talked to Mr. Peters that
day.
If I issued a 104-B order I would think that I
talked to Mr. Peters. I would assume that I did.

Q.

All -right.

THE COURT: Did you take any notes or anything that day
that would refresh your recollection?

1975

THE WITNESS: I did. But the conference sheet that we
fill out states that I did talk to Mr. Peters about all
the changes to orders, 104-B orders.
Mr. Turner stated that he next returned to the site on
June 9, 1989, when he terminated the citation and order, and he
indicated that the original citation abatement date had been
extended and that he would have discussed the abatement dates
with Mr. Peters during his subsequent two visits (Tr. 11).
Notwithstanding his belief that "no apparent effort had been
made" to secure the guard for the crusher tail pulley and belt on
May 31, 1989, he agreed that a guard had been provided for the
crusher flywheel on that day, but it simply lacked a bottom piece
which was missing, and that some work had been performed to abate
this condition (Tr. 15).
with regard to Citation No. 3285844, concerning the-jaw
crusher drive motor, Mr. Turner stated that although three violative conditions are noted on the citation form, he only issued
one violation in accordance with MSHA's policy. He believed that
there was a problem with the motor feed box because it was an old
motor and a box had to be fabricated (Tr. 13).
With regard to Citation No. 3285845, concerning the lack of
a protective railing or barrier to "prevent the fall of person"
at the walkway adjacent to the jaw crusher control station, he
believed that no barriers were present when he returned on
May 31. With regard to the notation on his order issued that day
that "no apparent effort had been made to correct the condition
of a chain used to prevent contact with moving machine parts at
the jaw crusher control station," Mr. Turner stated that the
chain was at a different location than the missing barrier or
railing and that the chain was simply hanging down from a support
post. The missing barriers concerned the other side of the
control station (Tr. 18).
With respect to Citation No. 3285846, concerning the lack of
guards on the tail pulley pinch points on a conveyor under and
below the crusher, and his notation on May 31, that "no apparent
effort had been made to secure" the guards, Mr. Turner believed
that there may have been a change in the condition as it was
initially cited on September 13, but that he could not specifically recall this condition and had no independent memory of the
cited guard condition (Tr. 21).
With regard to Citation Nos. 3285848, 3285849, and 3285850,
Mr. Turner stated that he recalled these cited guarding conditions, and that no changes had been made during the intervening

1976

period of September 13, 1988, and May 31, 1989, when he issued
the orders, and that the conditions were the same (Tr. 21-24).
He confirmed that the upper conveyor tail pulley (Citation
No. 3285850) was guarded, but that the guard was inadequate, and
abatement was achieved by pulling the guard screen together and
either bolting it or wiring it to eliminate the possibility of
someone reaching in and contacting the pinch point (Tr. 24).
On cross-examination, Mr. Turner confirmed that when he
initially visited the site on September 13, there were two
crushers at the site, and that all of the citations were issued
on the new crusher that Mr. Peters was working on in order to
make it operational. Mr. Turner stated that the crusher had been
operating when he arrived at the site, but that it was shutdown
during the inspection. The other crusher was not wired up and
was down (Tr. 25-26). He confirmed that Mr. Peters informed him
that the crusher which was cited was newly purchased and that he
was attempting to set it up (Tr. 27). When asked to cori'firm
whether he informed Mr. Peters that the cited conditions had to
be corrected before the crusher was placed in production,
Mr. Turner responded as follows (Tr. 28-29):
A. If we have a problem with semantics, I believe what
I told Mr. Peters, which I tell many of the operators,
almost all of the operators, is if there is a violation
present that the plant should not be operating until
that violation is taken care of.
Q. Right, Now did you also tell him that as long as he
had these items covered by your citations repaired or
installed that he could then place the plant into
operation?

A. If they are non s and s citations he can repair
them and go from there.
Q. Would it be fair to state that Mr. Peters could
very well have understood that there was no particular
time limit on making these repairs or installations,
provided that he wasn't using the plant?

A. I find it difficult after all of the conversation
that we have had, discussions that he could not be
aware of the termination dates.
Okay. Now your second visit was on February 23,
1989, and from looking at the various documents it
appears that you arrived there at 12 minutes after
12:00 -- 14:07. That would be 2:07 in the afternoon?
Q.

1977

Q.
(BY MR. COOK) Now as I read from your citation of
that date, it is the second page under 3285841. You
state in the last paragraph, "the plant has been down
for some time and Mr. Peters had assured the inspector
that the violations shall be remedied prior to start up
in the future." That is exactly what he said?
A.

Yes, sir.

Mr. Turner stated that all of the cited conditions were
ultimately corrected to achieve compliance, and although he had
no evidence to establish that the plant was operated without the
corrections being made, he confirmed that when he first drove up
to the site on September 13, he observed that the plant was
running. However, he took "a break" waiting for Mr. Peters to
arrive to accompany him on his inspection, and when he returned
the plant was shutdown. Mr. Turner described the equipment which
comprised the crushing "plant," and he confirmed that all of the
guarding citations involved the Eagle jaw crusher operation. He
stated that material was being processed through the crusher when
he initially observed it in operation, and he confirmed that he
did not inspect the second crusher which was not wired up (Tr.
31-33).
With regard to his subsequent visit to the site on
February 23, 1989, Mr. Turner confirmed that it was a follow-up
visit to abate the citations which he issued on September 13,
1988. Although the extension notice issued that day for Citation
Nos. 3285841 and 3285855, were the only ones included with the
pleadings filed by MSHA, and were the only ones of record at this
point in the hearing, Mr. Turner believed that he issued other
extensions that day. When asked if he had any independent recollection that he in fact extended the other citations, he replied
"the procedure would be to extend them. • • . I would have to
look it up and try to find records in regard to that" (Tr. 38).
When asked for an explanation as to why he would issue a section
104(b) order 5 months after he extended the abatement time for a
citation, Mr. Turner responded as follows (Tr. 38-39):
THE WITNESS: Well, first of all, I would like to talk
to the operator to find out whatever mitigating circumstances he may have had for not operating the plant.
THE COURT: Do you recall any in this case?
have happened?

What may

THE WITNESS:
I remember going out there, but I cannot
remember-the conversation on February 23rd, and I
cannot remember whether I spoke to Mr. Bagley or
Mr. Peters or both of them.

1978

THE COURT: You don't recall whether you issued any
extension on all of these other citations that we just
went through regarding this?
THE WITNESS: I can't. recall. The correct procedure
would be for me to do that, but I can't recall whether
I did or not.
MR. O'HAVER: I think had he done that they would have
been part of the record. They are not.
THE COURT: Doesn't it strike you kind of strange that
he would go out there and issue them on the 13th and go
back on the 23rd and only address two and not the
others?
MR. O'HAVER: It could very well be that time of the
year everything was down and he may have only met with
Mr. -- Mr. Peters may not have been there, maybe only
one person there, and 'they only talked about the record
keeping portions. That time of the year the plant
wouldn't ordinarily be operating.
THE COURT:

So then he goes back on the 31st?

MR. O'HAVER: Yes, because the weather's getting better
and they are going to start operation. That's just
speculation on my part.
With regard to Citation No. 3461132, which he issued on
June 1, 1989, Mr. Turner testified that he observed a truck
driver driving a "cat" front-end loader without a hard hat on.
He confirmed that the loader was equipped with rollover protection (ROPS), but that the canopy was not completely enclosed and
was open at the top, and had no windshield or side protection.
Except for the rollover bars, the loader operator was completely
exposed. Mr. Turner stated that the driver was an employee of
the respondent, and he identified him as "Mr. Morgan." He stated
that the driver was_loading the truck with rocks from the side
with the bucket of the loader in a raised position, and that he
was exposed to a hazard of a "spill of rocks coming back and
hitting him in the head." 'He further believed that the failure
by the driver to wear a hard hat could have resulted in a serious
injury if he were struck by a rock and he would have incurred
"lost days or restricted duty." Mr. Turner confirmed that he
observed that rocks were spilling off the raised bucket, and he
found that an injury was reasonably likely to occur (Tr. 42).
Mr. Turner described the loader as "pretty small," and he stated
that the loading bucket would be approximately 8 to 10 feet ahead
of the operator's compartment, and if the load were lifted and
tilted into the bed of the truck which was being loaded, the load

1979

would be 8 to 10 feet high and over the position of the operator
at the controls of the loader (Tr. 45).
Mr. Turner stated that he based his "high negligence" finding on the fact that he and Mr. Peters had discussed the matter
of wearing hard hats on the property, and although he believed
that the respondent's employees had hard hats available, he did
not know whether Mr. Peters furnished them. He could not recall
where the hard hat used to.abate the citation came from, or
whether it was in the loader, in the truck, or obtained from the
shop (Tr. 43). He confirmed that he has previously observed
loader operators loading materials on a truck and that they wore
their hard hats while in the loader (Tr. 44). He further confirmed that the violation was abated in 3 minutes by providing a
hard hat, but he could not recall where Mr. Peters obtained it
(Tr. 45) •
Respondent's Testimony and Evidence
Mr. Robert Peters, a partner in the operation, testified on
behalf of the respondent. Mr. Peters testified that the loader
which was being operated, as well as his other loaders, are
equipped with ROPS protection, and although the front and sides
of the machine were open, the top was enclosed with a quarterinch steel plate. He stated that the driver was furnished with a
hard hat but that he had it in the truck and he had not bothered
to put it on. He confirmed that drivers may load the trucks
themselves, or a loader operator will load them (Tr. 46-47; 53).
Mr. Peters testified that he purchased the Eagle crusher in
question at an auction in Oregon, and brought it to his operation
in Willits, California. since he had not previously observed it
in operation, the crusher was in a "set-up mode" at the time of
the initial inspection by the inspector on September 13, 1988.
He confirmed that the crusher was not in production at that time,
and that "we were trying to see if it worked and what needed to
be done to put it into production" (Tr. 48). He further confirmed that a second crusher unit, which had previously been in
operation at another-location, had been moved "from the North
plant in town" and was located next to the Eagle crusher in the
vicinity of the power source.
Mr. Peters testified that on September 13, 1988, he and the
inspector went to the Eagle crusher plant, and he advised the
inspector that he had just purchased the crusher. Although the
inspector understood this, he inspected the crusher and issued
several citations and explained what needed to be done to bring
it into compliance. At the completion of the inspection, the
inspector "stated to me that, you now, as long as we didn't run
the plant until we had all these corrections made there was no
problem" (Tr. 48). Mr. Peters explained that the crushers are
not used during the winter because no crushing is done, and it

1980

was his understanding that the inspector was giving him "all
winter to get everything put on it and get it up to par"
{Tr. 49) •
Mr. Peters stated that the inspector next returned -on
February 23, 1989, to follow up on a citation issued on
September 13, 1988, for failing to conduct an annual test for
continuity and resistance of the grounding system. Mr. Peters
stated that during this visit several equipment guards which he
had made were laying by the machine, and that the inspector
informed him tha:t "there was no problem with the guards," and
that as long as all of the guarding citations were corrected
before he went into production, "that there was no problem" (Tr.
49) .
Mr. Peters confirmed that the inspector next returned to the
site on May 31, 1989. Mr. Peters stated that he informed the
inspector that he could not accompany him on his inspection
because he was occupied with a mechanical problem on one of his
trucks and asked him to come back in an hour. The inspector
replied "no" and proceeded to write up the section 104{b) orders.
Mr. Peters stated that although he was unhappy with the inspector
issuing these orders because he previously told him that there
would be no problem as long as he had made the repairs before the
crusher was put in operation, he nevertheless continued to complete the repairs and install the guards. He indicated that most
of the guards had been constructed and some were installed. He
alluded to one particular guard to cover the crusher flywheel,
and confirmed that when the inspector returned a week or 9 days
later, "we had everything completed and he signed them off" (Tr.
51).
Mr. Peters further stated that if he had not been occupied
repairing the truck on May 31, 1989, and had been able to accompany the inspector on his inspection, he would have tried to
convince him that he did in fact make an effort to comply and
would have reminded him of his understanding in February that the
violations had to be abated before he placed the crusher into
production. Mr. Peters stated further that he had made "lots of
effort to correct the problem," that most of the guards were
there, but not on the crusher, and that the inspector saw them
{Tr. 51). Mr. Peters stated that he had no opportunity to
explain to the inspector because "I was busy repairing my truck
while he was writing the 104-b's" {Tr. 52).
On cross-examination, Mr. Peters stated that he often talks
to his employees about safety hazards, emphasizes hard hats, and
that he has a good insurance company safety record rating. He
explained that in connection with the crusher "set up" on
September 13, 1988, it had been run two or three times prior to
that day with "a little material" in order to check the system to

1981

determine if any repairs were needed (Tr. 55). When the inspector returned.on February 23, they discussed the fact that the
crusher could not be operated until all of the needed corrections
previously cited on September 13, were made, and the inspector
did not speak to him about any specific dates. Mr. Peters stated
that he did not look at the "paperwork" or the extension dates
left with him on February 23, and did not discuss this with the
inspector, but did assure the inspector that before he put the
crusher into production, the corrections would be made (Tr. 56).
Mr. Peters stated that he usually reopens his operation in
June after the winter season because he cannot have access to any
streams to obtain his materials until after May 15, when his
state fish and game permit is issued. The state usually permits
him access to the streams in June. He confirmed that when the
inspector returned on May 31, the crusher plant was still dormant
and not in production and had not been running (Tr. 56)._
With regard to the initial inspection citations issued on
September 13, Mr. Peters testified that he did not discuss the
September 20, abatement dates recorded on the citations with the
inspector, and that these dates do not mean anything to him. He
explained that he "glanced over" the citations and read what the
inspector wrote and knew that he was writing because "we went
over each item specifically and he told me what needed to be done
to comply" (Tr. 57).
Inspector Turner was called in rebuttal by the petitioner,
and he produced and reviewed copies of several extension notices
he issued on February 23, 1989, extending the abatement times of
the citations he issued on ·September 13, 1988, to February 77,
1989 (exhibit P-2, Tr. 58). Mr. Turner stated that he had 1:10
independent recollection of discussing the termination dates with
Mr. Peters, but that his extensions would indicate to him that
they were discussed (Tr. 59).
As noted earlier, the violation extension notices issued by
Inspector Turner on February 23, 1989, were not included as part
of the initial civil_ penalty assessment proposal pleadings filed
by the petitioner in this case, and petitioner's counsel could
offer no explanatiop as to why they were not previously filed
with the pleadings (Tr. 59). The inspector retrieved his file
copies during a break in the hearing prior to being called in
rebuttal, and the respondent's counsel confirmed that he had not
previously seen them. Although the copies reflect that they were
served on him, Mr. Peters stated that he had not previously seen
them (Tr. 60).
I take note of the fact that copies of the extension notices
produced by Inspector Turner at the hearing are stapled to an
Inspection Information Sheet filled out by Mr. Turner. In the

1982

"Remarks" portion of that document, Mr. Turner notes that "Copies
of terminations and extensions given to office personnel"
(Exhibit P-2, pg. 1). Mr. Peters testified that they may have
been left with a Mr. Dan Bagley (Tr. 60). Inspector Turner
confirmed that he has been instructed not to leave m1rie property
"until we issue the paperwork to someone, or that a copy stays on
the property" (Tr. 61). Although the extensions reflect that
they were served on Mr. Peters, Mr. Turner could not recall
giving them to him, and he testified that "I may have addressed
that to Mr. Peters and gave the copies to Mr. Bagley, the weigh
master" or left them in the office. Mr. Turner could not recall
any conversations with Mr. Peters on February 23, and stated that
he made no inspection note~ that day and could not find any (Tr.
62) •
In response to further questions, Mr. Turner confirmed that
Mr. Peters was having a problem with one of his trucks while he
was at the site on May 31, 1989, and could not accompany him on
his inspection that day. Mr. Turner stated that when he found
that the original citations had not been abated or terminated, he
made some notes and advised Mr. Peters that he would have to
reissue them pursuant to section 104(b). He then wrote them up
and discussed them with Mr. Peters. When asked about the nature
of the conversation, Mr. Turner stated "we discussed them (sic)
about the plant will not operate until all the violations are
secured or remedied, and I left the property" (Tr. 64).
Mr. Turner confirmed that he was not sure at that time whether or
not the crusher had been in operation (Tr. 64).
Mr. Turner assumed that the plant was not in operation from
September 13, 1988, through February 23, 1989, and he had no
reason to dispute Mr. Peters' testimony that the plant is not
normally put into production until after May 31 or early June.
He also had no reason to dispute Mr. Peters' testimony that the
cited crusher was being "set-up" and tested prior to any production, and that when he conducted the inspection the plant was not
running and he did see anyone there (Tr. 65).
Although Mr. T~rner claimed that he asked Mr. Peters on
September 13, if a week was sufficient time to correct the violations, he agreed that it was possible that Mr. Peters was under
the impression that he may have had a week to fabricate the
equipment guards, but could wait until the plant was in production before installing them, notwithstanding the termination
dates shown on the face of the citations (Tr. 67). Mr. Turner
confirmed that the September 13, 1988, inspection was his first
inspection of the crusher plant in question (Tr. 68). However,
he believed that the plant has had other crushers which had been
previously operated, and that other MSHA regular and follow-up
inspections have been conducted at the site (Tr. 72). Since
Mr. Peters advised him on September 13, that some material had
been run through the crusher during the set-up, Mr. Turner

1983

believed that it should have been in compliance with the guarding
requirements.because accidents may occur when the equipment is
running and he found no excuse for not guarding it (Tr. 71).
Mr. Peters testified that during the initial set~up period,
the crusher was not operated continuously for 3 days, and that it
was operated for 10 minutes while adjusting a belt or changing a
bearing, and the guard is off because it covers the tail pulley
adjustment device and the guard must be off to make any adjustment. He stated that "we were not continually running for 3 days
straight. We would fire up, run it, see a problem and then we
would shutdown and work on that," and he reconfirmed that the
crusher was not in a production mode from September 13, 1988,
until the time the citations were ultimately abated (Tr. 76).
Findings and Conclusions
Jurisdiction
Although the respondent has not raised any jurisdictional
question, the evidence establishes that the cited crusher was
purchased out of state, and that the respondent has an MSHA ID
number, and its crushed stone operation has been inspected and
regulated by MSHA. I conclude and find that the respondent is a
mine operator within the meaning of the Act, and is subject to
MSHA's enforcement jurisdiction. See: Tide Creek Rock Products,
4 FMSHRC 2241 (December 1982); Southway Construction Co.,
6 FMSHRC 174 (January 1984); Rockite Gravel Co., 2 FMSHRC 2543
(December 1980), Commission Review Denied, January 13, 1981;
Mellott Trucking Company, 10 FMSHRC 409 (March 1988).
Fact of Violations
The respondent was cited for 10 violations of several mandatory safety standard found ·in Part 56, Title 30, Code of Federal
Regulations. One violation was issued because of the failure to
conduct a grounding system continuity and resistance test as
required by section 56.12028; three were issued for failure to
comply with the equipment guarding requirements of section
56.14001; two were issued for failure to guard a conveyor pursuant to section 56.14003; one was issued for the lack of equipment bushings or fittings as required by section 56.12008; one
was issued for failure to provide a railing or barrier at the
crusher travelway location pursuant to section 56.11012; one was
issued for failing to conduct monthly inspections of fire extinguishers or to have the inspection records available at the work
site as required by section 56.4201(b); and one was issued for a
violation of section 56.115002, because of the failure of a truck
driver to wear a hard hat while loading a truck with a front-end
loader.

1984

The respondent agreed and stipulated that the cited conditions and practices which are described by the inspector on the
face of each of the contested section 104(a) citation notices
which were issued on September 13, 1988, arid June 1, 1989, were
true, and that these cited conditions constituted violations of
the cited mandatory safety standards (Tr. 5). Respondent further
stipulated and agreed that it does not contest the two "single
penalty" citations which resulted in proposed penalty assessments
of $20 (Citation Nos. 3285841 and 3285855) (Tr. 39-40).
The respondent further stipulated and agreed that its dispute in this case lies in its disagreement with the inspector's
assertion that it made "no apparent effort" to remedy some of the
cited conditions and abate the violations. These findings by the
inspector formed the basis for his issuance of seven section
104(b) orders which resulted in proposed civil penalty assessments which the respondent believes are "high" and unwarranted
for the conditions which w~re initially cited by the inspector on
September 13, 1988.
In view of the foregoing, I conclude and find that all of
the conditions and practices cited by the inspector in support of
the citations which he issued on September 13, 1988, and June 1,
1989, constitute violations of each of the cited mandatory safety
standards relied on by the inspector, and the violations ARE
AFFIRMED.
History of Prior Violations
The respondent's history of prior violations is reflected in
a "Proposed Assessment Data Sheet" submitted by the petitioner
(exhibit P-1). The information presented reflects that with the
exception of timely paid "single penalty" assessments, the
respondent was assessed for six violations issued during the
years 1986-1989. I cannot conclude that the respondent's compliance record is such as to warrant any additional increases in
the civil penalty assessments which I have made for the violations in question in this case.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business
The record reflects that the respondent operates a portable
stone aggregate crushing operation employing approximately six
individuals at any given time.
Its annual production is approximately 30,000 tons of crushed stone materials (Tr. 5).
Mr. Peters testified that two of his employees operate the
crusher, and four employees serve as truck drivers or mechanics
(Tr. 51). He also indicated that he is in production approximately 6 months out of the year (Tr. 80). Except for periodic
equipment set-ups and testing periods, the record reflects that
the crushing operation is essentially a seasonal business which

1985

is not in production during the "winter season" from approximately mid-September through May or early June. I conclude and
find that the respondent is a small operator and I have taken
this into consideration in making the civil penalty assessments
for the violations in question.
Mr. Peters testified that although payment of the full
amount of MSHA's proposed civil penalty assessments for the
violations may "hurt a lot. Particularly this year," he confirmed that payment of those penalties, in the amounts proposed
by MSHA, will not put him out of business (Tr. 79). Under the
circumstances, and in the absence of any evidence to the contrary, I conclude and find that payment of the civil penalty
assessments which I have made for the violations which have been
affirmed will not adversely affect the respondent's ability to
continue in business.
Gravity
With the exception of the "hard hat" citation issued on
June 1, 1989, all of the citations issued by the inspector on
September 13, 1988, were issued as section 104(a) non-S&S citations. I take note of the fact that in each instance, the
inspector noted "zero" as the number of persons affected by the
cited violative conditions (Gravity Item 10-D). He also found
that there was either "no likelihood" of any injury, or that an
injury was "unlikely," but nonetheless found that the injury
would be "fatal," "permanently disabling," or would result in
"lost workdays or restricted duty." In connection with the six
guarding citations, he noted on the face of the citation that the
hazard "exposure could not be determined." Mr. Peters testified
that if a hazard were presented, the only person exposed would be
the crusher operator (Tr. 51).
When asked to reconcile his apparent inconsistent gravity
findings, Mr. Turner explained that his findings of "unlikely"
were based on the fact that the crusher plant was not in operation at the time of the inspection. However, if someone were to
contact an unguarded_pinch~oint, particularly a tail pulley, "it
would be fatal" and "a person could get his hand in there or
something and it could tear his hand or arm off and he could
bleed to death" (Tr: 35). His findings of "fatal" would be
relevant if the crusher were to be put into production (Tr. 36).
With regard to his findings that "zero" persons would be exposed
to any injury, Mr. Turner stated that "I believe this is the way
OSHA" would consider any hazard exposure. He conceded that he
may have been in error in making these findings, and that MSHA's
current policy is to consider the total number of people working
at the plant. He also conceded that any determination as to the
actual number of persons exposed to any hazard "would have to be
determined by asking Mr. Peters some questions. Who lubricated
the plant and cleaned it out," and that these determinations

1986

would have to be made before he checked the appropriate item
boxes on the.citation form (Tr. 36). In the instant case,
Mr. Turner confirmed that all of the cited equipment which lacked
guards was guarded before the crusher plant was placed in
production (Tr. 37).
I conclude and find that Citation Nos. 3285841 and 3285855,
for the failure to conduct the annual continuity and resistance
grounding system tests, and the failure to inspect the fire
extinguishers on a monthly basis were not non-serious violations.
I find no evidence to support any conclusions to the contrary.
Likewise, in the absence of any evidence or testimony to the
contrary, I also find that Citation No. 3285844, for a lack of
fittings and bushings on the cited components of the crusher was
a non-serious violation. Under the circumstances, the inspector's non-S&S findings regarding these violations are affirmed.
With regard to Citation No. 3285845, for failing to-provide
a railing or a barrier at the travelway location adjacent to the
jaw crusher operator's control station, I conclude and find that
this was a serious violation. Although the crusher was not in
operation at the time of the inspection, and the respondent had a
chain available at one of the locations near the crusher, it was
not hooked up to prevent anyone from walking through and into the
crusher. Further, the inspector's unrebutted testimony establishes that the lack of a barrier or a railing at the cited
travelway location presented a falling hazard and that a barrier
or railing would prevent someone from falling off the control
station area. The inspector also testified that when he and
Mr. Peters walked up a stairway in the proximity of this unprotected area, the crusher jaw was open "where a person could step
off into the jaw" (Tr. 17-19).
With regard to the five guarding citations (Nos. 3285843,
3285846, 3285848, 3285849, and 3285850), I conclude and find that
they were all serious violations. Although the crusher was not
in operation at the time of the inspection, the inspector's
unrebutted testimony reflects that it was running when he initially drove up to tne site, and Mr. Peters admitted that it had
been in operation while it was being setup and tested. Further,
the guards were not in place, and there is no evidence that they
may have been installed while the crusher was being setup and
tested. Under the circumstances, I conclude and find that there
was some degree of hazard presented, and that a potential for an
accident was present while materials were being run through the
crusher while it was in a setup mode and being tested. The fact
that the inspector found the violative conditions to be non-S&S
is immaterial to any gravity finding or the seriousness of the
potential hazards presented.

1987

Neither the inspector or the petitioner suggested that the
inspector's non-S&S findings with respect to the guarding citations should be modified. Although I am troubled somewhat by the
inspector's inconsistent and contradictory findings with respect
to the likelihood of any injuries, and his admission -that he "may
have been in error," I find no evidentiary basis for disturbing
his non-S&S findings.
In my view, a serious violation is not
ipso facto a significant and substantial violation. The
commission's standards and criteria for determining a significant
and substantial violation have been addressed in Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981); Mathies Coal
company, 6 FMSHRC 1, 3-4 (January 1984); United States steel
Mining Company. Inc., 7 FMSHRC 1125, 1129 (August 1985), and the
cases cited therein.
The inspector's rationale for his non-S&S findings was based
on the fact that an injury was unlikely because the plant was not
operating at the time of the inspection, and there is no evidence
that it was in production when the guards were not in place.
More to the point, however, is the inspector's candid admission
that the degree of hazard exposure can only be determined by
asking relevant questions during an inspection with respect to
the actual work which may have been performed in the proximity of
the unguarded locations while the crusher was being operated.
Although the inspector conceded that the actual hazard exposure
could not be determined because the crusher was not in operation
at the time he observed the violative conditions, it seems
obvious to me from the lack of any evidence or testimony on his
part to the contrary, that he made no inquiries so as to establish any factual basis in support of any conclusion that the
guarding violations were in fact significant and substantial, and
no evidence or testimony was advanced by the petitioner to establish that this was in fact the case.
Significant and Substantial Violation (Citation No. 3461132,
30 C.F.R. § 56.15002)
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:

1988

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.
1129,

In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
(August 1985), the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard _
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the 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 inspector's unrebutted testimony, which I find credible
and probative, establishes that when he observed the truck driver
operating the loader and loading the truck without wearing a hard
hat, the loader bucket was raised 8 to 10 feet above the loader,
and the inspector observed rocks spilling out of the bucket. He
concluded that it was reasonably likely that the driver operating
the loader would incur serious injuries if he were struck by a
falling rock. Although Mr. Peters claimed that the loader had a
steel plate covering over the canopy, the evidence establishes
that it had no windshield and that it was open on both sides of
the operator's compartment. The fact that the loader had a steel
plate over the canopy, would not in my view, preclude any falling
rocks from the raised bucket from entering the otherwise unprotected operator's compartment and striking the driver in the
head. Under the circumstances, I agree with the inspector's S&S
finding, and it is affirmed.
Negligence
Inspector Turner made .findings of "high negligence" for five
of the citations he issued on September 13, 1988, (Nos. 3285841,
3285843, 3285845, 3285846, 3285849), and "moderate negligence"
for four citations (Nos. 3285844, 3285848, 3285850, 3285855). He
made a finding of "high negligence" for the citation he issued on
June 1, 1989 (No. 3461132).

1989

Mr. Turner stated that his negligence findings were based on
whether or not the cited conditions were readily observable to
the respondent, and if the violations occurred in any "hidden"
area where the respondent could not see them, he would consider
this to be a lesser degree of negligence. As an example, he
explained that his "high negligence" finding with respect to
Citation No. 3285843, for failing to guard the crusher tail
pulley, mechanical belt, and V-belt drive pulley located at the
approach ramp to the crusher would be readily observable because
mobile equipment used to feed the crusher used the ramp (Tr. 35).
No further testimony was forthcoming from the inspector with
regard to his negligence findings made on September 13, 1988,
other than the fact that Mr. Peters acknowledged that he knew
that the cited equipment needed to be guarded (Tr. 35).
I conclude and find that the respondent knew or should have
known about the conditions which prompted the inspector_~o issue
the citations on September 13, 1988, and that its failure to
exercise reasonable care to insure compliance with the cited
mandatory standards constitutes ordinary negligence.
With regard to the citation issued on June 1, 1989, for the
failure of a truck driver to wear a hard hat, the inspector
stated that he based his "high negligence" finding on the fact
that he and Mr. Peters had previously discussed the need for
employees to wear hard hats while on the property. Although the
inspector confirmed that he spoke with the employee in question,
he could not recall whether the employee gave him any explanation
for not wearing a hard hat, nor could he recall where the hard
hat was located or from where the one supplied to abate the
citation was obtained.
Mr. Peters testified that he often spoke with his employees
about wearing their hard hats, and he confirmed that he furnished
a hard hat to the cited employee, but that he had it in his truck
and had not bothered to put it on. This testimony is unrebutted,
and I find it credible. Although the respondent is liable for
the violation without regard to fault, I find that the negligence
of the employee in failing to wear the hard hat furnished to him
by the respondent mitigates the respondent's negligence and any
civil penalty which may be assessed for the violation. Under the
circumstances, I conclude and find that the violation resulted
from a low degree of negligence by the respondent.
Good Faith Compliance
I conclude and find that citation Nos. 3285841, 3285855
(continuity and resistance tests and fire extinguishers) were
abated in good faith by the respondent within the extended
abatement time. The hard hat citation (3461132) was abated
within 3 minutes.

1990

With regard to the remaining citations, the record reflects
that when the. inspector returned to the site on May 31, 1989,
after previously extending the abatement time, he found that the
respondent had made "no apparent effort" to secure the guards at
some locations, install guards at other locations, or to remedy
or correct the other cited conditions. As a result of these
findings, he issued seven section 104(b) orders. MSHA's proposed
civil penalty assessment amounts for the violations obviously
reflect the fact that orders were issued, and I believe that it
is reasonable to conclude that the inspector's belief that no
effort had been made to correct the cited conditions resulted in
the maximum number of penalty points for a lack of good faith
compliance by the respondent.
As noted earlier, although the respondent does not dispute
the fact that the cited conditions constitute violations of the
cited standards, the crux of its contest lies in its dispute with
the inspector's belief that it made no apparent effort to correct
the cited conditions. Mr. Peters maintained that at the completion of the inspection on September 13, 1988, the inspector
informed him that as long as the crusher plant was not in production and was not running, there would be no problem. Mr. Peters
testified that he paid no particularly attention to the 1-week
abatement period fixed by the inspector, and that it was his
understanding that he could make the necessary corrections during
the winter season when the crusher was not in production.
Mr. Peters further testified that the crusher was not in production from September 13, 1988, until the violations were ultimately abated. The inspector confirmed that all of the cited
conditions were ultimately corrected, and he had no reason to
dispute Mr. Peters' testimony that the plant was not operated
before the corrections were corrected and abated.
The inspector testified that his normal procedure is to
inform an operator that if there is a violation, the plant should
not be operated until the violation is corrected, and he believed
that this is what he told Mr. Peters during his initial inspection on September 13, 1988. The inspector also agreed that it
was possible that Mr .. Peters was under the impression that he may
have had a week to fabricate the guards, but could wait until the
crusher was placed in production before installing them.
Mr. Peters testified credibly that when the inspector next
returned to the site on February 23, 1989, for a follow-up
inspection, several guards which he had constructed were available and were laying by the machine, and the inspector again
informed him that there was no problem as long as the citations
were corrected before he went into production. Mr. Peters stated
that he and the inspector again discussed the fact that the
crusher could not be operated until the cited conditions were
corrected, but that the inspector said nothing about any specific

1991

dates for abatement, and that he (Peters) did not look at the
extension "paperwork" left by the inspector. Mr. Peters confirmed that he told the inspector the violations would be remedied prior to any future start-up of the crusher plant, and the
inspector confirmed that this is what Mr. Peters told- -him and
that he wrote this on one of the extension forms which he issued
on February 23.
The inspector testified on direct-examination that he could
not recall whether he spoke with Mr. Peters, Mr. Bagley, or both
of them on February 23, when he extended the abatement times.
His inspection report, with the attached copies of the extension
notices, reflects that they were given to "office personnel," and
the inspector could not recall giving them to Mr. Peters. He
confirmed that he made no inspection note~ on February 23, and
acknowledged that he may have given the extensions to Mr. Bagley
or left them in the office. The inspector's asserted lack of any
recollection of speaking with Mr. Peters contradicts his earlier
testimony that Mr. Peters assured him on February 23, that the
violations would be remedied prior to any start-up of the
crusher. Further, his notation that he left the extensions with
office personnel, and may have given them to Mr. Bagley, or left
them in the office, corroborates Mr. Peters' assertion that they
were not given to him and he did not see them. Although the
inspector indicated that the fact that the extensions were issued
suggests that he discussed the termination dates with Mr. Peters,
he made no notes to confirm this, and he acknowledged that he had
no independent recollection of discussing the extended termination dates with Mr. Peters. Under the circumstances, and in
light of the inspector's lack of recollection and contradictory
testimony, I give greater weight to Mr. Peters' testimony which I
find credible.
With regard to the inspector's return visit on May 31, 1989,
when he issued the section 104(b) orders, after concluding that
"no apparent effort had been made" to correct the cited conditions, the inspector testified that "I can't really say that I
talked to Mr. Peters that day" (Tr. 10). His "assumption" that
he spoke with Mr. Peters was based on the fact that he issued the
orders. Although the inspector confirmed that he took notes
which would refresh his recollection, and that a "conference
sheet" which he filled out reflected that he did speak with
Mr. Peters about "all the changes to orders, 104-B orders," the
notes and conference sheet were not produced and they are not a
matter of record.
Mr. Peters testified that he was occupied with certain truck
repairs on May 31, and did not accompany the inspector during his
inspection. He relied on the inspector's prior statements that
there would be "no problem" as long as the crusher was not operated before the abatement of the violations. Mr. Peters maintained that he had in fact made efforts to comply by fabricating

1992

most of the required guards which were there and which the
inspector saw. Mr. Peters maintained that he had no opportunity
to explain his abatement efforts to the inspector because he was
busy repairing the truck while the inspector was writing up the
orders.
The inspector confirmed that Mr. Peters did not accompany
him on his inspection because he was busy repairing a truck and
told him "go on, do what you have to do" {Tr. 63). He testified
that he made some notes dur:ing his inspection, and when he finished, he told Mr. Peters that he would have to issue the orders,
and gave them to him. He stated that he discussed the orders
with Mr. Peters, and when asked about what was discussed, the
inspector stated that he told Mr. Peters that the plant will not
operate until the violations were remedied, and he then left the
property.
Although the section 104{b) orders are not directly in issue
in these proceedings and there is no indication that the respondent filed any separate contests within the required time period
challenging the propriety of the orders, they are relevant to the
civil penalty assessments proposed by the petitioner, and the
mitigating arguments advanced by the respondent in support of its
assertion that it had made some effort at compliance. In this
regard, I take note of the fact that one of the orders makes
reference to a lack of a guard bottom on the crusher flywheel.
The underlying citation noted that the flywheel had not been
guarded at all. The inspector agreed that in this instance, the
flywheel was guarded on the top and sides on May 31, and that
some work had been performed and an effort was made to at least
guard the flywheel (Tr. 15). That same order makes reference to
the fact that no effort wa~ made to secure a tail pulley guard
which was not on the equipment when it was initially cited. This
leads me to conclude that prior to May 31, an effort had been
made to fabricate the guard, and it was simply not secured at
that time. I also take note of the inspector's testimony that
the respondent was constructing guards when he inspected the site
on September 13.
With regard to another order issued for failing to guard a
conveyor tail pulley under the crusher, although the order states
that no effort was made to secure the guard, the inspector
believed that there may have been a change in the condition as
originally cited, and I believe it is reasonable to conclude that
a guard had been fabricated but was not in place or secured to
the tail pulley pinch point on May 31. These instances of what I
construe to be partial abatement efforts, corroborate Mr. Peter's
assertions that he had made an effort to fabricate the guards,
and had in fact done so, but had not secured or installed them.
On the facts of this case, while it is true that the respondent had not completely abated the most of the violations during

1993

the extended abatement periods, I conclude and find that it had
made some effort at compliance by fabricating the guards which
were available when the inspector returned on May 31, 1989.
Having viewed Mr. Peters during the course of the hearing, I find
him to be a credible witness, and I conclude that notwithstanding
the abatement extension dates which were on the citations and
extension notices, that it was not unreasonable for Mr. Peters to
believe that complete abatement was not required until such time
as the crusher plant went into full production after the winter
season.
I further conclude that it was not unreasonable for
Mr. Peters to believe that he could wait until after he had
completed the installation of the crusher and placed it into full
production before completely abating the cited conditions.
Accordingly, I have taken this into consideration in mitigation
of the civil penalty assessments which I have made for the
violations.
Civil Penalty Assessments
Although MSHA has in the past routinely assessed "single
penalty" non-S&S violations at $20, its procedures for making
such assessments (Part 100, Title 30, Code of Federal
Regulations) have been revised on an interim basis pending a
permanent revision of its assessment regulations. These interim
revisions are the result of a November 21, 1989, court decision
in Coal Employment Project, et al. v. Secretary of Labor, (Court
of Appeals for the D.C. Cir. No. 88-1708). However, it is clear
that I am not bound by MSHA's proposed civil penalty assessments,
and that once a penalty is contested and Commission jurisdiction
attaches, a judge's determination of the amount of the penalty is
de novo, based upon the statutory penalty criteria and the record
developed in the adjudication of the case. See: Sellersburg
Stone Company, 5 FMSHRC 287 (March 1983), aff'd, 736 F.2d 1147
(7th Cir. 1984); United States Steel Mining Co •. Inc., 6 FMSHRC
1148 (May 1984).
On the basis of the foregoing findings and conclusions, and
taking into account the six statutory civil penalty assessment
criteria found in section llO(i) of the Act, I conclude and find
that the following civil penalty assessments are reasonable and
appropriate in th~ circumstances of this case.
Citation No.

Date

3285841
3285843
3285844
3285845
3284846
3285848

09/13/88
09/13/88
09/13/88
09/13/88
09/13/88
09/13/88

30 C.F.R. Section
56.12028
56.14001
56.12008
56.11012
56.14001
56.14003

1994

Assessment
$ 20
$125
$ 95
$125
$ 95
$ 90

3285849
3285850
3285855
3461132

56.14001
56.14003
56.4201(b)
56.15002

09/13/88
09/13/88
09/13/88
06/01/89

$125
$ 85
$ 20
~

$830

ORDER
The respondent IS ORDERED to pay civil penalty assessments
in the amounts shown above within thirty (30) days of the date of
this decision and order. Payment is to be made to MSHA, and upon
receipt of payment, this matter is dismissed.

~jf~

Administrative Law Judge

-

Distribution:
George B. O'Haver, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson Street, Suite 1020, San Francisco, CA
94105 (Certified Mail)
Leo M. Cook, Esq., P.O. Box 418, Ukiah, CA 95482 (Certified Mail)
Mr. Robert Peters, Peters Trucking Company 266 Shell Lane,
Willits, CA 95490 (Certified Mail)
/fb

1995

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

22041

OCT 2 21990
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF DON B. COLEMAN,
Complainant

Docket No. KENT 90-72-D
PIKE-CD-89-15
No. 5 Mine

v.
RAMBLING COAL COMPANY, INC.,
Respondent

DECISION
Appearances:

Before:

G. Elaine Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee, for
Complainant; Billy R. Shelton, Esq., Baird &
Baird, Pikeville, Kentucky, for Respondent.

Judge Maurer

This proceeding concerns a discrimination complaint filed by
the Secretary of Labor (Secretary) on behalf of the affected
miner, Don B. Coleman, pursuant to section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c),
hereinafter referred to as the "Act".
On January 22, 1990, a Discrimination Complaint was filed
with the Commission alleging that Mr. Coleman was unlawfully
discriminated against and discharged by Respondent on
August 3, 1989, for engaging in an activity protected by section
105(c) (1) of the Act. More particularly, the Complaint alleges
that Coleman's discharge on August 3, 1989, was the direct result
of his stated refusal to perform work (operate a machine) which
he believed to be unsafe.
Pursuant to notice, a hearing on the merits was held in this
matter on May 17, 1990, in Prestonsburg, Kentucky. Post~hearing
proposed findings and conclusions were filed by the secretary on
July 10, 1990, and by the Respondent on July 5, 1990. I have
considered these submissions along with the entire record in
making this decision.

STIPULATIONS
The parties stipulated to the following which I accept:

1996

1. Rambling coal Company, Inc., is the owner-operator of
the No. 5 mine in Pikeville, Pike County, Kentucky.
2. The mine is subject to the Federal Mine Safety and
Health Act of 1977.
3. The Federal Mine Safety and Health Review Commission and
the presiding Administrative Law Judge have jurisdiction to hear
and decide this matter.
4. Mr. John South is a designated and authorized
representative of the Secretary of Labor.
5. The Complainant, Mr. Don B. Coleman, was discharged by
Rambling Coal Company, Inc. on August 3, 1989.
6. At the time of his discharge on August 3, 1989,
Don B. Coleman's wage rate was $60.00 per day.
7. According to Respondent's history of previous violations
in the 24 months preceding the violation charged in this action,
the Respondent had 177 inspection days, 104 assessed violations,
.58 violations per inspection day and no previous violations
prior to that time.
8. The Respondent is a small operator producing 172,625
tons per year. The No. 5 Mine produces 172,625 tons per year.
FINDINGS OF FACT

Having considered the record evidence in its entirety, I
find that a preponderance of the reliable, substantial and
probative evidence establishes the following findings of fact:
1. Complainant (Coleman) was employed by Respondent
(Rambling) as an outside man. He began his employment with
Rambling in March of 1989. He was employed at the No. 5 mine
from that date until his discharge on August 3, 1989. His duties
as an outside man were servicing batteries, greasing equipment
and checking fluid levels on the equipment and adding fluid, if
required. As part and parcel of performing his job duties, he
was required to operate the small front end loader that is the
subject of this case.
2. Danny Skeens, a coal hauler employed by Moody Trucking
Company, used this front end loader on the afternoon of August 2,
1989. He noticed that the brakes on the equipment were getting
weak and he notified Coleman and another man of that fact.
3. Skeens returned to the site early on the morning of
August 3, 1989. He attempted to use this front end loader, but
found that it had no brakes. Skeens reported this to

1997

Sammy Williams and Roy Alley, the superintendent.
4. On August 3, 1989, Coleman arrived at the mine site for
work at approximately 6:00 a.m. for his first day on the day
shift. By 7:00 a.m., he was discharged. This is also the
approximate time period when Skeens discovered and reported that
the front end loader had no brakes.
5. Coleman did not check the end loader's brakes that
morning. He already knew the equipment did not have any brakes
as of the previous evening, which was his last turn on the second
shift. Coleman had reported this fact to Sam Williams, the
company mechanic and only other person working with him on the
previous night's shift. Shortly after his arrival at work on the
morning of August 3, 1989, Coleman also informed Roy Alley that
the front end loader had no brakes.
6. Coleman credibly testified concerning that conversation
with Roy Alley as follows (Tr. 64):

Q. What was the nature of your conversation
with Mr. Alley?
A. Well, I went up to him, and I told him, I
said, 'Roy, that end loader doesn't have any
brakes,' and I said, 'And I know I'm going to
have to be running it a lot,' and I said, 'I
would like to have them fixed,' I said, 'I
fear for myself as much as the other people,
to run that piece of equipment, •cause it's
not safe and I don't want to run it with it
not safe like that, with no brakes on it.'

Q.

And what was Mr. Alley's response?

A. He said, 'Okay, I'll take care of it,
I'll talk to Steve [Horton),' and then he
talked to Steve, and 20 minutes later he come
back over -and said him and Steve decided that
I've got an attitude problem.
Complainant Coleman was then discharged. Roy Alley was not
available at the hearing, but it is clear from the record, both
from the testimony of Coleman and Steve Horton, the owner of the
business, that Coleman was fired by Alley at the direction of
Mr. Horton, after registering the above safety complaint.
7. Immediately after his discharge, Coleman reported the
firing and his complaint concerning the brakes to both the
Kentucky Department of Mines and Minerals and the Mine Safety and
Health Administration (MSHA). Both agencies responded by sending
an inspector to investigate.

1998

8. Walter Coleman (no relation to the Complainant) is a
mine inspector for the state of Kentucky. He was the first
inspector to.arrive on the mine site. He arrived at the mine
site at approximately 7:15 a.m., on August 3, 1989. -He inspected
the front end loader and confirmed it had no brakes. He notified
Mr. Horton, who along with Sammy Williams put brake fluid in the
end loader and bled the brakes.
9. Parenthetically, I find as a fact that bleeding the
brakes is a two man job. Coleman could not have bled the brakes
by himself, even if he knew how, which he claims he does not.
10. Horton and Williams were able to restore working brakes
to the front end loader in a matter of minutes utilizing the
procedure noted in Finding of Fact No. 8.
11. Mr. Horton had experienced an unrelated servicing
problem with the end loader a few days prior to the inciaent at
bar. On that occasion, the end loader could not be used because
the transmission was out of fluid. At that time, Steve Horton
warned both Sammy Williams, Jr. and Don Coleman to make sure the
equipment was serviced and in condition to operate at all times.
Both men were warned because both were considered to be
responsible for the condition of the equipment.
12. Horton's stated policy was to give only one
disciplinary warning before firing a worker and in this case
Respondent's assertion is that as of August 3, 1989, Coleman
already had his prior warning. Therefore, when he allegedly did
not put brake fluid in the end loader on August 2, 1989, or let
somebody know that the end loader did not have brakes prior to
that morning of August 3, he was fired for this reason, i.e., not
doing his job, not for complaining about the lack of brakes on
the equipment.
13. However, I find as a fact that Coleman did put brake
fluid into the end loader on August 2, 1989, but without bleeding
the brake lines, this was ineffective. I also find as a fact
that Coleman notified the company mechanic that the brakes were
defective before leaving the premises on August 2, 1989.
DISCUSSION WITH FURTHER FINDINGS
Generally, in order to establish a prima facie case of
discrimination under section 105(c) of the Mine Act a complaining
miner bears the burden of production and proof to establish (1)
that he engaged in protected activity and (2) that the adverse
action complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company, 2
FMSHRC 2768 (1980), rev'd on other grounds sub nom. Consolidation
Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary

1999

on behalf of Robinette v. United Castle Coal Company, 3 FMSHRC
803 (1981); Secretary on behalf of Jenkins v. Hecla-Day Mines
corporation, 6 FMSHRC 1842 (1984); Secretary on behalf of Chacon
v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511, (November 1981),
rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp.,
709 F.2d 86 (D.C. Cir. 19.83). The operator may rebut the prima
facie case by showing either that no protected activity occurred
or that the adverse action was in no way motivated by protected
activity.
If an operator cannot rebut the prima facie case in
this manner it may nevertheless affirmatively defend by proving
that it was also motivated by the miner's unprotected activity
and would have taken the adverse action in any event for the
unprotected activity alone. The operator bears the burden of
proof with regard to the affirmative defense. Haro v. Magma
Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of
persuasion does not shift from the Complainant. Robinette,
supra. See also Baich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983);
and Donovan v. Stafford Construction Company, No. 83-156~ D.C.
Cir. (April 20, 1984) (specifically approving the Commission's
Fasula-Robinette test). See also NLRB v. Transportation
Management Corporation, 462 U.S. 393, 76 L.Ed.2d 667 (1983),
where the Supreme Court approved the NLRB's virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act.
Additionally, where reasonably possible, a miner refusing
work ordinarily must communicate or attempt to communicate to
some representative of the .operator his belief that a hazardous
condition exists. Secretary on behalf of Dunmire & Estle v.
Northern Coal co., 4 FMSHRC 126, 133-135 (February 1982); Dillard
Smith v. Reco, Inc., 9 FMSHRC 992 (June 1987); Miller v.
Consolidation Coal Company, 687 F.2d 194, 195-97 (7th Cir. 1982)
(approving Dunmire & Estle communication requirement).
In the instant case, I find that Mr. Coleman's safety
complaint to Superintendent Alley on August 3, 1989, concerning
the brakes or lack thereof on the front end loader was protected
activity. Without question, the end loader had no operable
brakes on it and also without question it would be hazardous to
mine site personnel to operate it in that condition.
Rambling's position is that this protected activity had
nothing to do with Coleman's discharge. Rather, Mr. Horton
states that it was Coleman's failure to perform his job, i.e.,
service Rambling's equipment on the second shift, that led to his
discharge.
It is Horton's testimony that the equipment should
have had brakes on it on the morning of August 3, 1989, and if it
did not it was Coleman's fault. According to Mr. Horton "(t]he
problem was he (Coleman] did not put the brake fluid in the end
loader or let somebody know that the end loader did not have
brakes on it prior to that morning (August 3, 1989]." Tr. 131.

2000

However, Mr. Coleman testified and I find it to be credible
testimony, that on the evening of August 2, 1989, he attempted to
service the equipment by adding brake fluid. This simple
addition of brake fluid, however, without bleeding the brakes was
ineffectual. He also testified and I find it credibl• that he
then informed the company's mechanic that the equipment had no
operable brakes. He himself had no mechanical expertise and this
was all he could do prior to leaving the shift for the evening.
He personally did not know what was wrong with the brakes and did
not know how to fix them. Shortly after his arrival the next
morning he made the same report or complaint to Roy Alley that
swiftly led to his discharge.
Turning now to the issue of whether the discharge was
motivated by the protected activity, I first note the close
proximity in time and space between the safety complaint
concerning the brakes and the resultant discharge. This alone is
strong circumstantial evidence that the two events are related.
Additionally, there was one earlier incident where Coleman
had failed to service a piece of equipment for which he was
responsible along with another employee, Sammy Williams, and both
had been warned by Horton.
In this case, the same division of
responsibility would seem appropriate also. Both Sam Williams,
Sr., the mechanic, and his son, Sammy Williams, were also
responsible for servicing and maintaining this equipment, along
with Coleman. So, even if Coleman was somewhat responsible in
this instance for there being no brakes on the end loader it
would seem that Sam and Sammy Williams were at least equally
responsible.
Importantly, only Coleman complained or made an issue of it
and only Coleman was fired.
I therefore find that he was
discharged as a direct result of engaging in protected activity.
Since the operator has been unable to rebut this prima facie
case, I also find that a violation of section 105(c) of the Act
stands proven. The complaint of discrimination is therefore
SUSTAINED.

REMEDIES
Turning now to Complainant's remedies, I find that he was
unemployed between August 3 and August 29, 1989, for a total of
18 working days at a rate of pay of $60 per day. This amounts to
$1080. However, Complainant collected $414 in unemployment
compensation during this time period and that must be subtracted.
This leaves a total loss of pay of $666. The payment of interest
will also be ordered on this award until the date of payment.
Respondent will also be ordered to reimburse Complainant for
his reasonable costs. He claims $275.52 for expenses incident to
locating a new job and I find this to be very reasonable.

2001

Finally, the Secretary seeks a civil penalty in this case.
Considering the criteria under section llO(i) of the Act, I find
that a civil penalty of $500 is appropriate, and will be ordered.
ORDER
Based on the stipulations and the foregoing findings of fact
and conclusions of law, Respondent IS ORDERED:
1. To pay Don B. Coleman back pay through August 29, 1989,
in the amount of $666, within 30 days of the date of this order.
2. To pay Don B. Coleman interest on that amount from the
date he would have been entitled to those monies until the date
of payment, at the short-term federal rate used by the Internal
Revenue Service for the underpayment and overpayment of taxes,
plus 3 percentage points, as announced by the Commission in Loe.
U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493
(November 28, 1988).
3.
costs.

To pay Don B. Coleman $275.52 as reimbursement for

4. To pay the Secretary of Labor a civil penalty in the
amount of $500 for the violation found herein within 30 days of
the date of this order.

urer
ative Law Judge
Distribution:
G. Elaine Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)

Billy R. Shelton, Esq., Baird & Baird, P.S.C., 415 Second Street,
Pikeville, KY 41501 (Certified Mail)
slk

2002

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

OCT 2 21990

.
.

WYOMING FUEL COMPANY,
Contestant

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

CONTEST PROCEEDINGS
Docket No. WEST 90-112-R
Order No. 2930784; 2/13/90
Docket No. WEST 90-113-R
Citation No. 2930785; 2/13/90

..
.
:

Docket No. WEST 90-114~R
Order No. 3241331; 2/16/90
Docket No. WEST 90-115-R
Citation No. 3241332; 2/16/90
Docket No. WEST 90-116-R
Citation No. 3241333; 2/16/90
Golden Eagle Mine
MSHA Mine ID No. 05-02820
Consolidated

DECISION
Appearances:

Timothy E. Biddle, Esq., Susan E. Chetlin, Esq.
Crowell & Moring, Washington, D.C.,
for the Contestant;
Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for the Respondent.

Before:

Judge Morris

These consolidated cases are before me pursuant to
section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et seg., (the "Act") to challenge
orders and citations issued to Wyoming Fuel Company C"WFC").
After notice to the parties an expedited hearing on the
merits was held in Denver, Colorado.
The parties filed post-trial briefs.
Summary of the Cases
These consolidated cases involve two imminent danger orders
and three citations.

2003

WEST 90-112-R: In this case, WFC contests Order No. 2930784
issued under § 107Ca) of the Act by MSHA Inspector D.L. Jordan on
February 13, 1990.
The order alleged an imminent danger existed. The order
further closed the Golden Eagle Mine and ordered all personnel
withdrawn from underground.
The order reads as follows:
Methane in excess of 9.9% as approved by a handheld detector at a point at least 12" from the roof
face and ribs was present behind a line of 6 Kennedy
stoppings that have been constructed across the second south entry at the intersection of the number 14
west main return.
This encompass area behind the
stoppings six (6) entries wide and 25 crosscuts deep.
Bottle samples were collected to substantiate the
the order. Citation No. 2930785 for a violation of
30 C.F.R. § 75.329Ca)(l) accompanies this order at
section 8, "Condition or Practice".
A subsequent mod'if ication of the order was issued February 13, 1990, to allow construction of seals in 2d South. The
modification reads:
••• allow construction of seals in second
south as per attached sealing plan as submitted
and approved 2/13/90. No other work will be
done until the order is terminated ••• CMSHA
Order No. 2930784-01, "Subsequent Action" at
section II, "Justification for Action").
Subsequently, on February 17, 1990, the order was again
modified as follows:
The affected area in 2 South, West Main has
now been sealed, Order No. 2930784 is further
modified to allow the operator to resume mining operations. The Order will remain in effect
to moni~or the seals [sic. for methane] in 2
South every two (2) hrs. for a 72 hrs. period •••
107(a) CMSHA Order No. 2930784-03, "Subsequent
Action" at section II, "Justification for Action").
Only those persons necessary to monitor the
gases and to safeguard the mine are to be gl,lowed underground.
• •• 107Ca) CMSHA Order No.
2930784-02, "Subsequent Action" at section II,
"Justification for Action").

2004

WEST 90-113-R: In this case, WFC contests Citation No.
2930785 issu.ed by Inspector Jordan.
The citation, issued under § 104(a) of the Act, alleges a
violation of 30 C.F.R. § 75.329-1.
The citation reads as follows:
Methane ranging from .6 to 9.9% was present in
front of and behind a line of Kennedy stoppings
that were constructed across the second South
Entries at the intersection with No. 14 West Main
return entry, encompassing an area of 6 entries,
25 cross-cuts deep. This creates a situation of
neither being sealed or ventilated, a violation
of 30 C.F.R. § 75.329-l(a).
This was the main contributing factor to the
issuance of imminent danger Order No. 2930784.
Therefore no abatement time was set.
The regulation allegedly violated in its full text provides
as follows:
§

75.329

Bleeder systems.
[Statutory Provision]

On or before December 30, 1970, all areas from
which pillars have been wholly or partially extracted and abandoned areas, as determined by the
Secretary or his authorized representative, shall
be ventilated by bleeder entries or by bleeder
systems or equivalent means, or be sealed, as determined by the Secretary or his authorized representative. When ventilation of such areas is required, such ventilation shall be maintained so as
to continuously dilute, render harmless, and carry away methane and other explosive gases within
such areas and to protect the active workings of
the mine from the hazards of such methane and other
explosive gases. Air coursed through underground
areas from which pillars have been wholly or partially extracted which enters another split of air
shall not contain more than 2.0 volume per centum
of methane, when tested at the point it enters such
other split. When sealing is required, such seals
shall be made in an approved manner so as to isolate
with explosion-proof bulkheads such areas from the
active workings of the mine.

2005

§ 75.329-1.

Sealing or ventilation of pillared of abandoned

area.
(a) All areas of a coal mine from which
the pillars have been wholly or partially
extracted and abandoned areas shall be ventilated or sealed by December 30, 1970. For
those coal mines in which ventilation can be
maintained so as to continuously dilute, render harmless and carry away methane and other
explosive gases within such areas and to protect the active workings of the mine from hazards of such methane and other explosive gases,
the operator shall request permission from the
Coal Mine Safety District Manager in whose district the mine is located to ventilate such areas.
(b) The request for permission to ventilate such areas must be submitted in time to
allow consideration of the request, to obtain
approval, and to permit the operator to install the ventilation system, or to install
seals in the event the request to ventilate
is denied, on or before December 30, 1970.
(c) The determination of whether ventilation will be permitted will be made after taking into consideration the history of methane
and other explosive gases in the mine, the
size of the gob or abandoned areas, and if
the areas can be ventilated adequately.
(d) To be considered for approval the request shall contain the following information
provided by the mine operator:
(1)
(2)
(3)
(4)
(5)

Name of mine and company.
Location of mine (town, county,
state).
Operator's name and address.
Date of application.
A detailed history of the
methane content determined
throughout the mine and when
available, the volume of air
in which such methane determinations were made, to support
the operator's application to
ventilate.

2006

(e) A description of the method by which
the areas from which the pillars have been
wholly or partially extracted and abandoned
areas shall be ventilated and such maps and
drawings as may be required to illustrate
such method and to indicate existing, or
proposed air volumes used to ventilate such
areas.
Cf) The signature and title of the person
who submits the application for the operator.
WEST 90-114-R: In this case WFC contests Order No. 3241331
issued by MSHA Inspector A. Duran on February 16, 1990.
The order alleged a condition of imminent danger existed.
The order was accomplished by Citation No. 3241332 and subsequently by Citation No. 3241333. The order required that all
personnel be withdrawn from the underground areao
Order No. 3241331 reads as follows:
An unknown mixture of methane/air could
not be determined at the Kennedy stopping
constructed at #1, #2, and #3 entries of 1
- Right due to [sic. the condition] that
there was no means of testing or detecting
what mixture was behind the stoppings.
#1,
#2, and #3 were being ventilated with the
use of a line curtain from #7 right return
entry of 3d North. When No. 2 entry stopping was not ventilated methane of 10% plus
volume percentum was detected 12 inches
from the roof and face of the stopping with
the use of a permissible hand held methane
detector. Bottle samples were collected
at leakage areas of the stopping to substantiate~ the order.
WEST 90-115-R: In this case WFC contests Citation
No. 3241332. This citation, issued under § 104(a) of the
Act, accompanied Order No. 3241331.
The citation alleges a violation of 30 C.F.R.
§ 75.329(l)(a), cited supra.

2007

The citation reads as follows:
Methane/air mixture ranging from 0 to 10%
plus volume percentum was detected with the
use of a hand held methane detector when
check 12 inches from the roof and face of #2
Kennedy stopping erected in the No. 2 entry
of 1 Right. This was detected when the line
curtain was removed that was ventilating the
stopping. Other means of testing or detecting
what mixture was behind the stopping was not
provided at #1, #2, and #3 Kennedy stopping.
This creates a situation of neither being
sealed or ventilated, a violation of CFR 30
75.329-l(a). This was a contributing factor
to issuance of an imminent.danger 107Ca)
#3241331, therefore no abatement time was set~
WEST 90-116-R: In this case WFC contests Citation No.
3041333 which was issued after Order No. 3241331.
The citation alleges as follows:
This citation is issued for working in the
face of a 107(a) Imminent Danger withdrawal
Order No. 2930784 dated 02/13/90. The Company
was observed in the process of constructing
permanent seals in an entirely different area
of the mine. 1 Right panel off 32d North
without prior authorization or notification
to MSHA.
In addition the employees were exposed to an Imminent Danger due to an explosive
gas mixture behind and in front of Kennedy
stopping erected in #1, #2 and #3 entries of
1 Right Panel. Six employees and a Foreman
was observed working in the immediate area.
Employees stated the work had started on
02/14/90 to present 02/16/90 on the day shift.
Procedural Issues
WFC moved for an expedited hearing in these cases.
Secretary opposed and an expedited hearing was held.

The

The issue is again raised in this decision and the Commission is invited to consider the issue anew.
In support of its motion for expedition, WFC relies on the
statutory requirements set forth at section 107(a) of the Act.
The cited section provides as follows:

2008

Ce)

Relief from orders; hearing; order;
expedited proceeding.

Cl) Any operator notified of an order
under this section or any representative
of miners notified of issuance, modif ication, or termination of such an order
may apply to the Commission within 30 days
of such notification for reinstatement,
modification or vacation of such order.
The Commission shall forthwith afford an
opportunity for a hearing ••• and thereafter
shall issue an order, based on findings of
fact, vacating, affirming, modifying, or
terminating the Secretary's order. The
Commission and the courts may not grant
temporary relief from the issuance of any
order under subsection Ca).
(2) The Commission shall take whatever action
is necessary to expedite proceedings under this
subsection. C§ 107(e), Cl) and (2), Emphasis
added).
In opposition to the motion the Secretary states the 107Ca)
orders have been modified to permit mining activity. Further,
the modified order simply requires that methane samples be taken
each day to determine the stability of the methane since the construction of the permanent seals. The Secretary also contends
that if all orders issued under § 107 were expedited on request,
there would no longer be any capability for expeditious hearings.
The Secretary further asserts the Congressional intent of
Section 107(a) is to assist operators where an emergency situation exists. In short, the Secretary argues Congress intended
to allow an expedited hearing only in the case of an active
closure order, where the mine is not being allowed to produce
and is suffering a great hardship as a result of an MSHA order.
It is also urged that the matter of whether a hearing should
be expedited rests with the sound discretion of the presiding
judge.
The Secretary also contends the Commission Rules are so
structured that expedited hearings are allowed only in emergency
situations.

2009

Discussion
It is a basic rule of construction that where the language
is clear the statute must be enforced as it is written unless it
can be established that Congress clearly intended the words to
have a different meaning. Chevron, USA v. NRDC, 467 U.S. 837,
842-43, 104 S.Ct. 2778 (1984); United States Lines v. Baldridge,
677 F.2d 940, 944 CD.C. Cir. 1982); Phelps Dodge Corp. v. Federal
Mine Safety and Health Review Commission, 681 F.2d 1189, 9th Cir.
(1982); Freeman United Coal Mining Co., 6 FMSHRC 1577, 1578
(1984).
The statutory requirement, stripped of surplus language, is
that "any operator ••• notified of an order, etc., may apply
within 30 days ••• for a vacation of such order, etc." In such
a situation, "the Commission shall expedite proceedings."
It is uncontroverted here that these cases involve orders
issued under the authority of Section 107(a) of the Act. The
contests were filed within 30 days.
The foregoing uncontroverted facts require that these cases
be expedited. I agree with the Secretary that Congress may have
intended an expedited hearing only in the event of an active
closure order. However, the wording of § 107 does not show such
an intent.
Further, the structure of the Commission's Rules do not
support the Secretary. Commission Rule 52, 29 C.F.R. § 2700.52,
provides as follows:
§ 2700.52

Expedition of proceedings

(a) Motions. A motion of a party to expedite
proceedings may be made orally, with concurrent
notice to all parties, or served and filed by
telegram. Oral motions shall be confirmed in
writing within 24 hours.
(b) Timing of hearing. If the motion is granted,
a hearing on the merits of the case shall not be
scheduled with less than four days notice, unless
all parties consent to an earlier hearing.
A fair reading of the statute and the Commission rules
indicate that expeditious hearings involving § 107Ca) orders are
generally not left to the discretion of the presiding judge;
further, expedited hearings are not necessarily restricted to
"emergency" situations.

2010

I agree the failure to read "emergency situation" into the
Act and Rule.52 could render the expedited hearing process meaningless. However, the writer has never found the expedited hearing process to be burdensome, nor have any litigants attempted to
"overload" the Commission with requests for expeditious proceedings.
If this were to become a problem interfering with the Commission's duties of adjudicating disputes under the Mine Act, the
Commission would no doubt amend Rule 52.
In such circumstances
the appellate courts would accord great deference to the Commission's interpretation of its own rules. Lucas Coal Company v.
Interior Board of Mine Operations Appeal, 522 F.2d
581 Cl975).
In sum, under the Mine Act, contestant is entitled to an
expedited hearing when a § 107Ca) order is involved.
If the orders here had been issued under § 104Cd) of the
Act, a totally different result would have occurred. 1/-under
section 105CB)C2>, [30 USC§ 815Cb)CB)C2)], the Commission may
grant temporary relief from a 104Cd) order only under very
restrictive conditions. These are:
CA) a hearing [before MSHA] has been held
in which all parties were given an opportunity
to be heard;
CB) the applicant shows that there is substantial likelihood that the findings of the
Commission will be favorable to the applicant;
and
CC)
such relief will not adversely affect
the health and safety of miners.
No temporary relief shall be granted in the case of a
citation issued under subsection Ca) of Cf} of section
104. The Commission shall provide a procedure for expedited consideration of applications for temporary
relief under this paragraph.
In sum, I reaffirm the previous ruling granting WFC an expedited hearing.

1/ See Order in Medicine Bow Coal Co., WEST 90-117-R, March 13,
1990.

2011

Amendment
The original citations and orders herein were issued in
February 1990. On March 6, 1990, the Secretary sought to change
the allegations from a violation of 30 C.F.R. § 75.329 to a
violation of 30 C.F.R. § 75.316.
The operator's objection to the amendment was sustained for
the reason that MSHA may not amend a citation that has already
been terminated.
See Clinchfield Coal Company v. Federal Mine
Safety and Health Review Commission, 895 F.2d 773, 776 (D.C.
Cir. 1990); Emery Mining Corporation/Utah Power & Light Co.,
10 FMSHRC 1337, 1346-47 (Morris, J) (Order), review granted
(March 9, 1989).
Stipulation

-

At the commencement of the hearing the parties stipulated as
follows:
1. The Golden Eagle Mine is owned by WFC and the mine is
subject to the Act.
2.

The annual production is 900,000 tons.

3. The Commission and Administrative Law Judge have jurisdiction over this matter.
4. The papers involved in these cases were properly served
on the company and can be admitted in evidence.
5. Prior to the orders and citations herein the company
received 10 citations for rock dust violations.
Summary of the Evidence
DONALD L. JORDAN has been a coal mine inspector for 19
years; he is a person experienced in mining. He has inspected
the Golden Eagle dnderground mine on numerous occasions and does
so for about eight weeks each year.
On February 13, 1990, he inspected the mine accompanied by
Mark Bayes, an assistant mine foreman.
On that day he issued a 107(a) imminent danger order in the
2d South area of the mine (Order No. 2930784). Exhibit C-4, a
mine map, shows 2d South, 1st Right and other areas discussed in
the case.

2012

The 2d South entry, an abandoned area, is 6 entries wide.
Its width exceeds 2000 feet.
Inspector Jordan initially saw the Kennedy stoppings (hereafter called Kennedys or stoppings) when he examined the six entries.
(The stoppings are shown in Exhibit S-5.) Foam had been
applied around the roof and ribs of the stoppings.
Stoppings are
intended to deflect the air current and seal the area behind them.
This was not an adequate procedure because there were numerous
ignition sources behind the stoppings and there was an excessive
liberation of methane. Therefore, the stoppings would be inadequate as a safety device.
The inspector was alarmed because the area was not sealed.
In a couple of the entries the methane concentration went to
1.5 percent. The methane readings were as follows:
No.
No.
No.
No.
No.
No.

.8 percent
.6 percent
1.5 percent
.7 percent
.6 percent
.8 percent

1 Entry
2 Entry
3 Entry
4 Entry
5 Entry
6 Entry

The methane was measured with a methane detector.
In view of the amount of methane present on the ventilated
side of the stoppings, the inspector was concerned about the
methane concentrations behind the stoppings.
Inspector Jordan then withdrew 1000 to 1200 feet to a telephone and contacted his District Manager, Joe Pavlovich. He
indicated to his supervisor that he needed sampling equipment to
determine the concentrations behind the Kennedy stoppings. In
his opinion there was an explosive mixture of methane behind the
seals. Inspector Jordan also directed that the power inby be
shut off in order to eliminate some ignition sources. He then
examined the stoppings. He detected 2.2 percent methane in one
of the entries. This indicated to him that the methane was
changing back and forth between the stoppings. He then went to
the No. 1 entry and withdrew a sample from behind the Kennedy
stopping by using as aspirator pump. The air was trapped in a
50 mm bottle and the sample was sent to Mt. Hope, West Virginia
for analysis.
In at least three-fourths of the readings with the methane
detectors Inspector Jordan found that the methane exceeded
9 percent. He concluded this was a serious matter and withdrew
the men from the mine issuing an imminent danger order for the
2d South area.

2013

He based his order on the fact that the company has had a
history of roof falls. Also, he was aware of ignition sources in
the area. He considered this to be an imminent danger situation
in view of the methane levels immediately behind the stoppings.
These factors combined with the size of the area, namely 6 crosscuts wide by 25 crosscuts deep, an area in excess of 2000 square
feet.
Inspector Jordan was aware of several sources of ignition
such as roof bolts, track and trolley equipment, man doors and
such. Also an ignition source could be from a roof fall striking
against steel. If given these conditions, he had a reasonable
belief that an explosion would occur. In fact, the conditions
he found "scared the pants off of" him.
Explosions almost always cause a loss of life and they would
propagate beyond the stoppings.
Mr. Jordan and his District Manager agreed that they should
take immediate action by withdrawing the miners and retreating to
the surface. He was afraid for himself. However, he couldn't be
certain there would be an explosion.
They went to the surface and the mine superintendent was
notified. A conference was held in the main company off ice.
The area behind the stoppings was not ventilated.
In such a
situation he would expect there would either be seals or the area
ventilated. One would also expect that explosion-proof bulkheads
would have been installed.
In addition to the imminent danger
order he issued a 104(a) citation. Inspector Jordan did not see
any ventilation in the area and he considered the violation to be
significant and substantial. The purpose of the seals was to
create an atmosphere behind them. Seals have value outby an area
as protection if an explosion occurs. A discussion took place
with management about possible removal of the stoppings but no
one wanted to volunteer to remove the Kennedys.
MSHA officials also discussed with company representatives
that travel in 2d South would be restricted. The 107(a) order
covered the entire mine but it was modified by Inspector Jordan
to allow the company to construct seals but no other work. The
operator's activities were limited to the 2d South area.
The inspector agreed that Kennedy stoppings are a recent
innovation.
In his opinion the condition is imminently dangerous
if there is an explosive mixture of methane behind the stoppings
and the area is inaccessible.

2014

He indicated a methane detector is accurate to within
.1 percent; when the methane concentration is in excess of
9 percent the detector loses its accuracy.
Methane is in an
explosive range when its concentration to oxygen is between
5 to 15 percent.
If the methane concentration is in excess of 20 percent, the
inspector will remove the detector because it is no longer calibrated. Methane concentrations from 16 to 80 percent of oxygen
are not explosive mixtures.
Prior to the day of this inspection Mr. Jordan had not seen
the Kennedy stoppings in the 2d South area nor in 1st Right.
The
locations of the stoppings were not shown on the company mine map.
Kennedy stoppings are not explosion-proof bulkheads.
This
2500-foot long area could not be ventilated; therefore,_it should
have been sealed. The purpose of the inspection was not to
locate or find Kennedy stoppings. Any abandoned area must be
sealed or ventilated. In the ventilation plan Kennedy stoppings
could be used but not in lieu of a seal.
In fact, there was no room to build seals outby some of the
stoppings.
If. seals had been constructed the inspector would not
have issued his imminent danger order. With Kennedy stoppings in
place he would expect to find some methane in the outby side.
Forty feet of tube was used on the aspirator to sample
behind the stopping. A span of six entries is 600 feet.
The series of bottle samples that were taken (as shown on
Exhibit S-6) justify the imminent danger order. Further, the
hand held detectors had shown methane as high as 9 percent.
In 2d South there have been as many as six roof falls.
When
Inspector Jordan issued his imminent danger order, miners were
working only two entries away. Only in one location did Inspector Jordan see any permanent sealing material.
Several hours elapsed from a verbal order of imminent danger at 11 a.m. until the company received the written order.
Verbal orders are frequently issued. On the day it issued the
imminent danger order, MSHA also wanted to know the company's
plans to remedy the conditions. A Kennedy stopping is not the
same as a seal. Methane will migrate from area to area.
The air
outby at the stopping was 37,632 CFM.

2015

ANTHONY DURAN, an MSHA coal mine inspector, carries certificates as an assistant mine foreman in New Mexico. He works at
the Golden Eagle Mine two quarters a year •.
He inspected the mine on February 13, 1990, and went to the
longwall section with Supervisor Joe Pavlovich and the mine foreman. On that date he was called to 2d South but did not take any
methane readings. He agreed with Mr. Jordan as to the imminent
danger in the area.
Inspector Duran issued an imminent danger order on February 16, 1990, when they were continuing with their inspection.
He had learned the company was putting seals in 1st Right. The
previous Jordan order had affected the entire mine.
Inspector
Duran was accompanied by Frank Burka of the company safety department. Six miners and a foreman were putting up seals in
1st Right.
Inspector Duran went to the No. 1 and No. 2 ~top
pings and checked for methane. By using his hand-held methane
monitor he found a concentration of methane. It was 1.9 percent
to 2 percent at the wall. A methane detector may burn out if the
concentration is above 10 percent.
The Kennedy stoppings were in place at 1st Right. He
measured the methane at 2 to 5 percent. One of the stoppings
had a hole in it and the concentration at that point was 8
percent.
In Inspector Duran's opinion, the concentration of methane
is unpredictable in this gassy mine. If an explosion occurred
behind the Kennedy stopping, it could propagate into the working
area. The inspector also tried to take an air bottle measurement in the No. 3 crosscut but he could not determine if the
tubing had gone through the Kennedy stopping. He took a methane
reading of 1.9 to 2 percent when the tubing had been put through.
Inspector Duran also sampled 3.3 to 2.4 percent on the right hand
side and 8 percent at the Kennedy stopping.
He went back to No. 3 entry with two large air bottles and
two smaller ones.· He then issued a 107(a) order because of the
possibility of an imminent danger. He could not see behind the
Kennedy stopping. Methane requires an ignition source such as
a roof fall.
In a roof fall, if the roof bolts popped, they
could cause a spark, or steel striking steel could cause a spark.
The hazard is a resulting explosion. The inspector felt it was
an imminent danger situation because he did not know what was
behind the Kennedy stopping. He was also fearful of his own
safety.

2016

Inspector Duran issued a citation because WFC was working
"on an order." The previous order did not allow working in 1st
Right.
The area behind the Kennedy was not being ventilated. There
were no seals completed in the 1st Right area. If an explosion
occurred it could cause death, but the inspector did not know for
certain that an explosion would occur. Inspector Duran did not
know the concentration of the methane mixture behind the stopping.
He issued the order because, in his opinion, the return entry
could be shut off. He then went to the surface and called his
supervisor.
Inspector Duran terminated the 107(a) order when the seals
were completed. In addition, the methane tests indicated that
the concentration was above 80 percent, which was clearly beyond
the explosion range.
The inspector had seen Kennedy stoppings when the Golden
Eagle mine was developing the headgate and tailgate. The methane
detector used by the inspector was Model MX 240, as shown by
Exhibit C-1.
In connection with Order No. 3241331 the inspector detected
one reading at 5 percent and one at 8 percent. . He recalibrated
his instrument every morning and when he returned to the surface.
There were no surveillance tubes in the No. 2 or No. 3
entries. He couldn't tell whether or not the areas behind the
Kennedy stoppings were ventilated. Inspector Duran took a sample
in 1st Right. The samples taken from 1st Right are noted on
Exhibit S-7, an analysis by the Denver Tech support lab.
RONALD L. PHELPS of Trinidad, Colorado, has been an MSHA
supervisory inspector since October 22, 1989. He is a person
experienced in mining; he has been in the Golden Eagle Mine six
times.
Mr. Phelps was ·contacted by the inspector as to whether or
not it was appropriate to issue the imminent danger order. In
his supervisory position he has reviewed the records of the
Golden Eagle Mine concerning rock dust surveys. In the past, the
company has received 26 citations for inadequate rock dust.
Inspector Duran called Mr. Phelps concerning 1st Right.
Inspector Duran said work was being done on the 1st Right on two
seals but the miners were working in methane concentrations. The
materials and tools being used could cause sparks; there was also
an unknown methane mixture behind the stoppings.

2017

Based on this information, Mr. Phelps concluded that it was
reasonably likely than an explosion could occur. He felt he had
no choice but to issue an imminent danger order. He also concluded that MSHA should issue a 104Ca) order. He directed that
the workers be withdrawn from the mine.
Mr. Phelps traveled to the mine and met with company representatives to establish a plan to complete the seals in 1st Right.
He inspected the area and concluded the Kennedy stoppings did not
meet the criteria of explosion-proof seals. He returned to the
mine the following day and was informed that the seals only
lacked a couple of blocks to be completed.
Inspector Duran confirmed the completion of the 1st Right seals and MSHA terminated
the order on 1st Right. The seals were completed at 12:55 p.m.;
upon completion, the order was terminated as to 1st Right.
MSHA
authorized the resumption of mining but methane samples were
required to be taken to verify the integrity of the 2d S.Outh
seals.
After 72 hours, a favorable positive trend was established
but MSHA left the modification in effect. The order was terminated on February 28 when it was indicated the seals were
effective.
On the day the order was issued, the inspector met with several company officials, as well as with MSHA representatives
Pavlovich and Jordan. At this meeting they discussed the conditions and requested that the company propose how it intended to
correct the situation. After the company plan was approved the
2d South order was modified so that miners could safeguard the
mine, but no other work was authorized. Also maintenance would
be allowed in certain areas to address the problem of water
accumulations, etc. The modification, in effect, states that no
other work was to be done.
The inspector agreed he was only aware of one safety complaint in connection with 1st Right, a 103Cg) complaint.
Inspector Melvin Shively concluded after an investigation that the
103 Cg) complaint was -invalid since he found initials in the necessary area.
Shively did not tell the inspector about the Kennedy stoppings which were recessed 20 to 30 feet from the return.
On March 13, Mr. Phelps was involved in the dispatch of the
inspectors. He assigned each inspector to a section of the mine.
The previous evening, Inspector Duran told him that Kennedy stoppings existed across the 2d South entry. In Mr. Duran's opinion
this blocked the ventilation; such a condition was a problem.

2018

Mr. Phelps assigned.Jordan to the west side and asked him to
check the conditions. He did not want an area to be unventilated, nor did he want Kennedy stoppings serving as seals.
From Mr. Duran's statements, the witness believed miners
were working in an explosive gas area. Mr. Duran told him the
company had dropped the ventilation curtains.
After the order was issued on 2d South, MSHA allowed the
company to build permanent seals. In 1st Right the seals were
built; after the seals were completed in 1st Right, the methane
was no longer ii the explosive range.
Stoppings in 2d South were constructed in a poor position
since they were close to the entries. The ribs themselves were
crushed and rolled and there was concern about the integrity of
the seals. Logically, there wasn't a perfect solution. The
order of withdrawal issued on February 13 is the same order terminated February 28.
The imminent danger order was modified and left in effect
as a control measure. When the order was issued on 2d South, the
mine was closed. No one was allowed to return until the order
was modified.
On acceptance of the company plan, the order was modified
and the company was allowed to enter 2d South and build the seals.
The company was also permitted to check the water accumulations
and methane concentrations in the area.
The plan to construct the seals indicated an ongoing effort
to provide a safe working environment. The ten-point plan that
was approved by MSHA provided that certified people would monitor
the area; also, non-sparking tools would be used.
The chain of command, from MSHA's viewpoint, was the office
of District Manager John DeMichiei to Sub-District Manager
Joe Pavlovich to the MSHA field off ice and then to the three
regular MSHA inspectors.
WILLIAM REITZE, an MSHA mining engineer, has been with MSHA
for three years. He is familiar with the Golden Eagle Mine and
has been in the mine on three occasions. Mr. Reitze identified
the ventilation plan for the mine; he has reviewed the plan in
its present form (Exhibit S-8).

2019

He indicated that Kennedy stoppings were a form of ventilation control but do not constitute a seal. All areas of a mine
must be ventilated or sealed.
In this mine, Kennedy stoppings were across the entries in
both areas. This would indicate the areas were not being ventilated. There was no way for air to make a loop through the
area.
Permanent seals are constructed of 8-inch by 8-inch by
16-inch concrete blocks. The blocks for the seal must be 16
inches thick with a surveillance tube and water tap. If the
seals are in place, methane can build up beyond the explosive
range. The C02 will also increase in the atmosphere. It is
impossible to build a perfect seal. seals normally leak.
One method is to put in a temporary seal and then construct a permanent seal. The permanent seals are cut into the
rib floor.
The concrete blocks are then sealed with mortar.
The mine requires explosion~proof seals. A Kennedy stopping is not explosion-proof. A Kennedy stopping is eight inches
thick but stoppings are not built to hold an explosion.
In one
of the entries here, it took four hours to install an explosionproof seal. It is a good mining practice to monitor an atmosphere behind the seals as it is necessary to know the extent of
methane build-up, depletion of oxygen, etc.
There can be variations of methane concentrations behind the
Kennedy seal, as well as behind a permanent seal.
The mine maintained two areas which were not ventilated and
permanent seals were not installed.
A map is part of the ventilation plan.
Exhibit S-8.

It is shown in

Exhibit S-9 shows the 2d South area where the seals are
constructed Cleft of center of map shown in Exhibit S-9>. on
Exhibit S-9 the triple lines indicate a seal. The initials "SM"
mean "Steve Madson." He indicated where the seals were to be
constructed. Madson drew the seals on the company map and
initialed the map. The map is part of the approved plan.
The ventilation plan requires methods to be used for the
concrete explosion-proof seals. Exhibit S-10 is part of the
ventilation plan. It contains estimated construction dates.

2020

Seals are to be constructed and seals should go up to the
ventilation stop.
WFC's Evidence
DAVID HUEY, Wyoming Fuel's Manager of Operations, is a person experienced in mining. The company employs 132 hourly miners
and has 26 underground management personnel. The mine is 450
feet deep and a strata of shale overhangs the workings.
Exhibit C-2 is the roof control plan; a page of the plan is
a lithologic survey prepared by the company's chief engineer.
The mine liberates in excess of five million cubic feet of
methane in a 24-hour period; as a result, the company has a
weekly inspection as mandated by § 103Ci) of the Act.

--

A 14-foot diameter intake shaft in the return shaft pulls
500,000 CFM. Exhibits C-3 and C-4 show the abandoned area.
The Kennedy stoppings are marked with three vertical slash
marks on the exhibits.
The company increases ventilation to handle the methane
liberated by the mine. Certain areas are sealed because of the
amount of methane liberated.
The Kennedy stopping is used to
shut off air; it is not a seal.
There has been no mining in the 2d South area since 1985
because of floor heave and maintenance problems. The concret~
block stoppings were broken.
If a stopping is crushed out, the air will short-circuit and
not go back to the end of the panel.
Heaving problems in 2d South were present since Mr. Huey
began his employment with the company. The company has also
encountered black damp CC02>· The section is 2500 feet long.
Black damp was encountered at 2,000 feet.
Brattice was installed
where the Kennedy stoppings had crushed out. This did not solve
the problem, which has been ongoing since August 18, 1989. The
company also blocked off entries with Kennedys. The Kennedys
prevent access to an area. The company decided to seal 2d South
when they installed Kennedy stoppings in January 1990. The company did not continue to work in 2d South after the Kennedy stoppings were installed. However, foremen walked the area in pairs
in the event brattice needed to be moved.

2021

Kennedys were installed in the latter part of January 1990
to keep the miners out. There was positive pressure maintained
on the Kennedy stoppings. The purpose was to keep miners out of
the areas where there was positive pressure on the stoppings.
The 37,000 plus CFM airflow against the Kennedy stoppings would
dilute any methane. The loop of air was drawn on Exhibit C-4;
the arrows show the airflow before the Kennedy stoppings were
installed.
The heave of the floor will break a Kennedy stopping.
Kennedy stoppings were installed before an area was sealed.
The ventilation plans permit Kennedy stoppings.
Afte·r put ting in the stoppings the company would next, in
sequence, install seals at the mouth of 2d South.
The material for installing the seals had been loaded and
moved into position by the track. This was an ongoing process.
The material would be transported by locomotive. The route is by
a rope slope and then by cable car. On one trip the company
could put in material for a seal but the material itself goes on
a locomotive to the track end. The supplies are then hand-carried to the six sites. One man could carry one block from the
track. It is about 600 feet. If the seals are on the outside
then there is a possible travel. distance of 900 feet from the
track end to the seals. The mortar was contained in 90-pound
bags.
Mr. Huey had a conversation with MSHA about the sealing
of 2d South. The company planned to seal 2d South. MSHA's
Archie Vigil was supportive of the idea.
Witness Huey was informed at home of the imminent danger
order in 2d South. At that time he was advised that Inspector
Jordan had ordered the miners withdrawn. The subsequent discussion with MSHA representatives took place at the mine office.
The outcome was.to.erect permanent seals which the company
had already been set out to do. Mr. Huey did not agree with the
imminent danger order because there was no imminent danger.
There was a lot of black damp but there were no ignition sources
in the area. The inspector said there was a possibility of a
roof fall. However, the company uses resin-grounded roof bolts.
There wouldn't be a roof fall behind the Kennedy stoppings.
Belt structures could not be ignition sources. MSHA also
claimed that a roof fall could strike a rail and cause an ignition. They also claimed that the methane behind the Kennedy
stoppings was in the explosive range. Mr. Huey would expect to
find methane behind the Kennedy stoppings.

2022

He was aware of two roof falls in 2d South in an area behind
the Kennedy stoppings. This had occurred at some previous time.
The 1st Right area involved the imminent danger order.
1st Right and 2d Right were developed by longwall panel. The
company encountered a fault in 2d Right. The fault resulted in
excessive water (600 gallons per minute and excessive methane).
The company pumped out the water reducing the methane and
also put up a seal. Mr. Huey was assisted by MSHA on arranging
the temporary seals. Positive air pressure was used on the seals.
They had a difficult time keeping the methane concentration below 2 percent. The company installed Kennedy stoppings across
three entries but applied positive pressure to them.
(The airflow is shown in blue on Exhibits C-5). When the company reached
1st Right at the junction of 3d North, it could not get the methane concentration below 3 percent, so they took in fresh air and
decided to seal 1st Right.
They also erected three Kennedy stoppings and started putting in explosion-proof seals. This started the last part of
1988. An MSHA inspector assisted them in this effort. The readings were taken at the face of the shields and no imminent danger
orders were issued during the monitoring of the seals.
Methane to be explosive must be in the 5- to 15-percent
range. The. inspector knew Kennedy stoppings were located in 2d
Right.
Permanent seals in 1st Right were put up in the latter part
of 1988 and there were tubes to monitor behind the seals at the
mouth of 2d Right.
In 1st Right the excessive water was permitted to flood.
Then there was a low place from crosscut 7 through crosscut 9
(marked dip on Exhibit C-5.) Methane was also bubbling through
the water. As a result of the water and methane, the company
had to retreat to crosscut 11. Water was flowing at 20 gallons
per minute.
In December 1988, the company decided to seal 1st Right and
erect Kennedy stoppings. MSHA was supportive of this plan. The
Kennedy stoppings were to seal off the methane. Without the
stoppings it would not be necessary to keep miners in the area.
They did not use oxygen apparatus to assist the miners in erecting the stoppings. It would have been unsafe to expose anyone to
this type of atmosphere.

2023

It was decided to put Kennedy stoppings and room curtains at
1st Right and start erecting the seals.
Also a bore hole from the surface was drilled. The purpose
of the bore hole was to vent off any pressures in the area. The
bore hole was installed in the summer of 1988. The bore hole
took care of the methane but it would not enter 1st Right because
of the fault line.
In February 1989, the company did not intend to install
Kennedy stoppings as permanent seals. There was positive pressure on the seal~ as a result of 89,000 CFM. In 1st Right air
was directed into the Kennedy stopping with line brattice. If
there was no positive pressure .. methane would go in the main
return. Kennedy stoppings remained until February 16, 1990.
MSHA makes quarterly AAA inspections. The 1st Right area is
one of the areas in the inspection book. In addition, ~ 103(g)
complaint was made by a miners' representative. He claimed the
company was not f irebossing the 1st Right area. The company
examiner would have to check the methane. It was not above 2
percent. An examiner would also examine Kennedy stoppings for
methane. On February 16, MSHA said the company could not use the
Kennedy stoppings as a seal. Mr. Huey said that they were not
being used as a seal. MSHA did not advise them of any methane
readings by the Kennedy stoppings.
Mr. Huey met Inspector Jordan on February 17. Inspector
Jordan said that there was 10 percent methane concentration
behind the No. 3 permanent seal in 1st Right.
In order to terminate the order, the company was required to
build seals (as shown on Exhibit C-6). The seals had to be built
by the 17th.
Mr. Huey was told this would be dangerous because of a possible roof fall at 1st Right; he did not agree there was any imminent danger.
The inspector said Kennedy stoppings could cause an ignition
due to a spark, but this wasn't possible since most of this area
was flooded. Any roof fall would drop into the flooded area.
Concerning the termination order in 1st Right, Mr. Huey
took readings and knew that the methane concentration there was
substantial. Inspector Jordan said it was a 10 percent concentration. Mr. Huey got a detector and obtained a reading of 80
percent methane. He had shut down the bore hole to increase the
methane concentration.

2024

"Imminent danger" means immediate danger to miners in a coal
mine.
Imminent danger can be bad roof, bad air, methane concentrations, black damp, and other conditions.
Concerning 1st Right, Mr. Huey did not believe there was
imminent danger.
The area was flooded and in 1st Right he had
seen flooding for over a year. However, part of it was not
flooded.
Roof falls are not a source of spark because the company uses resin bolts. Also, at 1st Right more than ten feet
of sandstone would have to fall before it could be a source of
ignition.
There was no condition of imminent danger because there were
no ignition sources or trolley wires.
It is not a safe mining practice to use Kennedy stoppings as
permanent seals. Kennedy stoppings are in 1st Right to direct
ventilation. It takes three hours to install Kennedy s~oppings,
while a permanent seal can be built in about 24 hours.
There
were no permanent seals in the 1st Right area.
The company decided to put up seals in the latter part of
February 1989. This was a year before the inspection.
The seals were installed after the MSHA order was issued.
The MSHA manager discussed seals in 1st Right on February 13 and
14. The company decided to put in seals because operations were
shut down in 2d South. The company maintains three shifts at
Golden Eagle. All of these are production shifts.
On February 14, six miners and the foreman built the seals.
They started on Tuesday and finished three seals by Saturday
afternoon.
The Kennedy stoppings directed the course of the air. An
excessive amount of time did not elapse between the time the
Kennedys were installed and the time the permanent seals were
constructed. The Kennedy stoppings cut off access and ventilation to a given area.
The stoppings are printed on the mine map as two lines;
the seals are printed on the map as three lines.
If an area is not ventilated it could be sealed with explosion proof seals because of possible explosions inby the
seals.

2025

Kennedy stoppings are not explosion proof. There was heaving in the 2d South area and Kennedy stoppings can be damaged by
heave as can any kind of other stopping or seal.
The company planned to put in permanent seals when they got
to it. There was some material in the area on February 13 but
Mr. Huey did not know how much. There was not enough material in
the area to build one seal. He didn't tell MSHA when the area
would be sealed. The Kennedy stoppings were initially in 2d
Right.
They worked on the permanent seals in 2d Right when they
could get to it. At crosscut 13 the seals were done a lot
quicker. Mr. Huey considered crosscut 13 to be an emergency
situation.
In 2d South, on February 13, there was a carload ot concrete
blocks and mortar on the tract to be used to build permanent
seals.
The witness did not believe an imminent danger condition
existed at 2d South since there was no ignition source.
There
were roof mats in the area.
The witness knew of two roof falls by crosscut 20 and six
roof falls in 2d South.
There is still disconnected track and trolley wire in the
area.
It took three shifts working five days to construct the
seals. The material for the permanent seals was in the section
before the Kennedy stoppings were installed.
It was a management decision to install the Kennedy stoppings.
If the company
reconnected the track from the area marked "track end," it would
be necessary to knock out two stoppings.
(Ex. C-4). The track
had been disconnected for a year.
As Manager of Operations, the witness reports to the company
Vice President Charles McGlothlin; the mine foreman reports to
the witness.
The witness did not discuss Kennedy stoppings in 2d South
with Mr. McGlothlin. Kennedy stoppings cannot be used as a seal.
The Kennedy stoppings were two to three feet from the seals.
The Company did not have a definite date to install seals.
The first step was to install the Kennedy stoppings. The start
date was when the Kennedy stoppings were erected; but the company
had not begun to install the seals.

2026

After the 107(a) order was issued on 2d South, the company
discussed removing the Kennedy stoppings and installing seals in
their place. However, the witness did not want to do that
because you could only take down orie stopping. It was unsafe
to remove the Kennedy stoppings because of the methane mixture
behind the Kennedy seals. The gas migrating from where the
stoppings would be removed could be harmful.
Before the order was issued, the witness understood that
MSHA accepted Kennedy stoppings as seals. This understanding
was based on what MSHA had observed in the past.
Kennedy stoppings are designated on the map in the mine
office; the area was also shown as "not ventilated."
The company has received a citation for curtains used as
ventilation controls and it has also been cited for lack of rock
dust.
In the witness's previous job in West Virginia, the company did not use seals. Abandoned areas were not sealed.
The order was issued on 2d South because of a miner's complaint. The miner was John Garcia. He identified himself to
the witness as the person who filed the complaint. He filed the
complaint because the company was not letting him serve as a
fireboss.
Once the Kennedy stoppings were erected, ·the company made
weekly examinations at the stoppings; some of these were recorded
in the book.
Certified f irebosses could danger off any area.
are a mix of hourly and salaried people.

Firebosses

When the 107Ca) order was issued at 2d South, the witness
understood the company could work on 1st Right notwithstanding
the order. MSHA's representative Mel Shively supported this
idea and concurred with the company's view.
There was a cave-in to the sandstone at the east end of the
mine in 1987.
It was ventilated at 1st Right after the Kennedy stoppings
were installed because the company had a bore hole drilled into
the area.
The diagram (Exhibit C-2) showing the lithology was made
as a result of the bore hole samples. Some portions contained
sandstone but others did not. The circled area line shows the
return aircourse.

2027

An explosion in 2d South would probably propagate into the
mine. The witness was not aware when any sandstone had fallen
onto the min~ floor.
JACK FELTAGER is a construction foreman for Golden Eagle.
He indicated the track and the trolley wire had been cut at the
point marked "track end." The track was also cut outby the
Kennedy stoppings for a distance of about 15 feet.
The trolley
wires were also cut at approximately the same location. By "cut"
Feltager means separated and de-energized.
Sections of the track
were also removed. The cut was made in order to install
stoppings.
The witness has built permanent seals with material that was
present at the site. One seal could have been constructed with
the material present but additional mo·rtar mix would have been
needed.
The witness was partly involved in the building of the
seals and it was necessary to hand-carry mortar blocks to the
point of construction. One or two overcasts along the way were
difficult to enter; it was also necessary to pass the 30-pound
blocks through some mandoors which are 2t x 2! feet wide.
They
also used a wheelbarrow because the area was too restricted to
use larger equipment. Forty miners were involved on
Mr. Feltager's shift to ·install the seals.
It took five days to
construct them.
On February 13, in 1st Right, there were materials at the
No. 2 entry to install seals. There were about 80 blocks and 30
to 40 bags of mortar. With this amount of material you could
install two rows of a permanent seal.
When installing seals in 2d South the men were two to three
feet from the Kennedy stoppings. The company had three foremen
monitoring the Kennedy stoppings. MSHA representatives were also
monitoring the work in the area.
No work was started with the permanent seals in 1st Right on
February 13, 1980.
The witness receives his orders from the general plant foreman. No definite time had been set to begin the installation of
the permanent seals. They were going to put Kennedy stoppings
in, then do the seals "when we can." The witness has two crews
who construct seals. Mr. Giacomo, of the company safety department, told the witness that the seals were to be built in 1st
Right. On the 14th, Mel Shively asked the witness if they were
working on the 1st Right seals. He replied affirmatively. They
were starting the seal in the No. 3 entry and they had been at
the work for seven hours.

2028

The witness was familiar with the installation of seals.
The Kennedy stoppings were used for ventilation control. When
construction began at 1st ·Right the witness was aware of the
107(a) order and he understood the company could only work in the
2d South seam.
When he entered 2d South on February 13 with Mr. Duran and
Mr. Pavlovich, the witness learned the inspector would issue the
107(a) order. When he realized MSHA was going to issue such an
order he contacted other people in the mine. The witness was not
aware of any imminent danger situation.
He remained in the mine ten minutes after he was told of
the imminent danger.
DONALD L. GIACOMO, a member of the company's safety department, renders .assistance to all departments. He has been in the
mining business 18 years. He was familiar with the MX Z40 (see
Exhibit C-1), which is the instruction manual.
On February 13, 1990, MSHA issued the imminent danger order.
The inspectors arrived at the mine about 6:30 a.m. and the withdrawal began between 10:30 and 11 a.m. The company did not
receive a written copy of the order until after 5 p.m.
On February 14, it was decided seals should be built on 1st
Right and he knew that they should take corrective action.
He was aware MSHA knew about the Kennedy seals in the area.
At the close-out conference MSHA inspector Al Shively asked when
the work would be done on the seals. About 2 to to 2:30 p.m. on
February 14, Mr. Giacomo was approached by Mr. Shively who asked
what they were doing in 1st Right. When they replied they were
building seals, he said, "Good." That was what he wanted to hear.
The imminent danger order was issued on 1st Right on February 16.
Under the 107(a) order the mine could be checked for hazardous conditions, but he did not discuss the possibility of going
to 1st Right to construct the seals. The witness thought that if
there was imminent danger he would construct the seals. When he
arrived on 2d South on February 14, he did not consider that
there was an imminent danger situation.
In the main return outby the Kennedy stoppings the air was
moving in excess of 39,000 CFM and the witness could not detect
methane in excess of 2 percent. A Kennedy stopping is not explosion proof.

2029

The witness was not involved in the decision to put Kennedy
stoppings in 1st Right.
If there was no explosive mixture outby
the stoppings, there was no urgency in erecting the permanent
seals.
Nothing in the standards tells the company that the seals
should be put in place whenever "practical."
There were no dangerous levels of methane outby the Kennedy
stoppings. Hence, it was not necessary to construct permanent
seals. The Kennedy stoppings blocked the access of miners in the
area.
The witness was not involved in the decision as to when 2d
South and 1st Right could be permanently sealed. Such a decision
is made by Mr. Salazar, the general mine foreman.
The witness decided to install seals on February l~.
Mr. Feltager was aware of the decision and by that time they had
been advised of MSHA's order. At the Golden Eagle mine, MSHA
inspectors write their orders after they come out of the mine.
The time on the imminent danger order was 11 a.m. The witness
physically received the order at about 5 to 5:30 p.m.
Before February 14, MSHA's Mr. Shively was aware of the
Kennedy stoppings in 1st Right and before that date he asked when
they would start building the seals. On February 14, Mr. Shively
asked the witness what they were doing in 1st Right. The witness
took that to mean "Are you building the seals in 1st Right
today?" His response was that we were building the seals;
Mr. Shively replied he was glad to hear that.
FRANK W. BURKO, a safety supervisor at the Golden Eagle
Mine, accompanied Inspector Duran on February 16, 1990.
The purpose of the line brattice is to ventilate the stoppings. The inspector took readings right by the seal. Mr. Burke
went to the No. 3 and No. 2 entries where the brattice had been
drawn back to the ribline. Mr. Duran made several checks in the
area of the No. 2 entry.
Mr. Burko said brattice should be brought in to help with
the ventilation. Mr. Duran said he wanted to check. The inspector was checking two to four inches away from the stopping.
He should have been a further distance back from the stopping.
In the No. 1 entry the parties were accompanied by a mine
representative. The ventilation was disrupted by pulling the
curtain back. Mr. Duran said he would have to issue a 107Ca)
order.

2030

On the night of the February 16, the witness traveled with
Mr. Phelps to 1st Right.
The construction of the seals was
continuing.
He and Mr. Phelps looked at the seals in 2d right.
Mr. Shively said that there was a continuing accumulation of
water.
Mr. Burke did not remember his methane readings but they were
not taken a foot from the roof or ribs. When in the No. 2 entry,
he didn't hear Mr. Duran tell anyone to move the curtain.
It
took five minutes to take his readings. Mr. Duran did not explain his reasons and he wanted to keep the ventilation
functioning.
The Kennedy stopping in the No. 2 entry was 10 to 12 feet
back into the rib line. Mr. Burke did not travel to 2d South on
the day the imminent danger order was issued.

-·

Concerning the seals under construction:
only two rows of
30 inches were needed to complete one of the seals. One or two
rows had been started on the No. 2 seal.
In the No. 1 entry the curtain was pulled back but that
would slow ventilation.
Apparently Mr. Burko got the same reading as Mr. Duran. The
men took readings in the main return and there may have been a
difference between the Burke and Duran measurements of methane.
CHARLES W. MCGLOTHLIN, JR., Vice President and General
Manager of the Golden Eagle Mine, reports to Chuck Batty, CEO.
Mr. McGlothlin has had 28 years in the mining industry and is
experienced in that field.
Mr. McGlothlin was aware of the order of withdrawal issued
February 13, 1990. He discussed the situation with subordinates
in the mine and investigated the facts.
The company further
tried to develop a plan to satisfy MSHA.
He met with MSHA representatives on February 13 to discuss ventilation in general and
to develop a plan to· abate the condition. Messrs. Huey, Phelps,
Paplovich, Duran, and Jordan were present at the meeting.
Mr. McGlothlin challenged MSHA's conclusion that this was a
condition of imminent danger. MSHA believed that it was an imminent danger situation due to the methane behind the Kennedy stoppings. Mr. McGlothlin disagreed because there was no ignition
source behind the Kennedy stoppings.

2031

The company's plan was to build permanent seals at 2d South
but he was not sure when the construction would be completed.
On Thursday, February 15, about 5 p.m., he had a telephone
conversation with MSHA's Mr. Phelps, of which he made notes. In
the conversation, Mr. Phelps indicated that the new District 9
(MSHA) policy was that a 107(a) order would not be terminated.
Mr. Phelps had been made aware of that policy. He believed that
the company would know about it sooner or later. MSHA intended
to modify the order to allow sampling. Mr. Phelps learned that
the saturation inspection occurred because of an explosion at
Pyro, Kentucky. · There was no discussion about the Kennedy seals
over the telephone.
On February 16 about 8:30 a.m., Mr. McGlothlin contacted
Jerry Taylor at MSHA's office. He un~erstood that Mr. Taylor was
the No. 2 ranking official. On the telephone Mr. Taylor confirmed Mr. DeMichiei's policy; namely, no one could be underground while an atmosphere behind the seals was in an explosive
range.
At his request Mr. DeMichiei returned Mr. McGlothlin's
call about 9:30 a.m. He was aware the atmosphere behind the
Kennedy stoppings was in the explosive range. Therefore, this
constituted a situation of "imminent danger". Mr. McGlothlin
told Mr. DeMichiei that the roof at the mine did not contain an
ignition source. Mr. DeM1chiei replied that they had attended a meeting and the subject had been discussed at a District
Managers' conference. The managers .were unanimous in their view.
Imminent danger existed because of the possibility of a roof fall.
Mr. McGlothlin was distressed because he felt MSHA regulations
should not be made in this fashion; i.e., by a meeting of MSHA's
managers.
Mr. DeMichiei said that he would forward a report from the
Bureau of Mines to confirm his position. This report had not
been received as of the date of the hearing.
After the talk -with Mr. DeMichiei there was further conversation with him about the history of the roof falls at the
mine. Mr. DeMichiei suggested a meeting on Tuesday (Monday was
a Federal holiday). Mr. McGlothlin passed the information along
to the Safety Department. Mr. McGlothlin made notes of the
statements by Mr. DeMichiei.
Mr. McGlothlin has been a mine foreman, shift foreman, and
an hourly worker. He was familiar with methane and with the
sealing of abandoned areas. In his opinion, there was no ignition source in 2d South but he would agree that would be a situation of imminent danger if an ignition source existed.

2032

At the time of the violation, Mr. McGlothlin had not read
the order but he understood they could build seals in 2d Right.
Inspector Shively recommended the time be used to build such
seals. This information came from one of the company representatives, but Mr. McGlothlin did not remember who had told him about
this facet of the case. The person who told him had first-hand
information.
Mr. McGlothlin had seen the language in the order about the
maintenance, inspecting, and pumping. He did not know who authorized the work. He was aware that Kennedy stoppings were
being used to cut off circulation in the mine. They discussed
the plan for sealing the areas in the mine.
Kennedy stoppings are an effective method to block off areas
while permanent seals are being constructed. When seals are to
be installed, it is a matter that is site specific. The seals
had not been installed in over a year but the company had good
positive pressure. The area was stable and under control.
Seals
are worked in with the regular construction schedule.
If the company experiences heaving, unstable roof, or methane over 2 percent in the return air, permanent seals should be
installed.
On 2d South, no date had been established to put in seals.
The Golden Eagle Mine can cut off ventilation and install permanent seals when they get around to it. This has been an
accepted work practice. Mr. McGlothlin could not say for sure
there was no ignition source behind the Kennedy stoppings. The
company's concern was black damp migrating out into the return.
A roof fall is not a possible source of ignition in an abandoned
area.
There could have been an explosive methane mixture behind
the seal. The company was concerned about the type of readings
being done here by MSHA and there are many indications of improper measurements. Also, wrong instruments were used, while
some instruments were used beyond their limits. Mr. McGlothlin
could not imagine any ignition source in 2d South or 1st Right.
DONALD W. MITCHELL, an expert witness and a person experienced in mining, testified at length. The witness's expertise is
developed in his testimony and also set forth in Exhibit C-8.
The Mitchell-Barrett seal was developed as a result of a memorandum he wrote.
Methane can be ignited either by a thermal factor of approximately 1800 degrees Fahrenheit or by incendivity. The latter are

2033

sources other than heat such as sparks, arcing, and electrical
current. Some sparks are not incendive; that is, they are not
capable of igniting a methane/air mixture.
The witness had been asked to review the facts known in the
instant case and render his opinion. He was contacted after February 13, 1990. In connection with the rendering of his opinion,
he reviewed maps, the roof control plan, ventilation plan, pressure differentials across the seals, and a ventilation study by
Boyd and Company for the Golden Eagle Mine. He also visited the
mine the week before he testified.
Methane is controlled by ventilation and a survey in September 1989 by Boyd and Company was very useful.
(John T. Boyd is a
consulting firm for the coal mine industry.)
Mr. Mitchell used a computer program which is the same
program used by MSHA concerning the effect of gas, black damp,
and methane.
Using the Boyd data and the flow of air, he added 1st and 2d
Right to the network of computer data.
The Boyd data did not
include 1st and 2d Right as points in the network. He also added
the bore holes from the mine to the surf ace which were shown in
1st Right and 2d Right.
In addition, the Kennedy stoppings were
calculated into the network but no other modifications were made
to the Boyd data.
Seals are notorious leakers. They do not prevent an interchange of gas between areas and even the best seal leaks 100 to
150 cubic feet per minute per one inch of water gauge differential. However, a typical leakage is 100 to 1000 on the same
scale.
The witness had been present during the proceedings in the
case.
When Kennedy stoppings are in place, the area is being ventilated in certain respects. Ventilation requires a loop and
there were three such air loops. They were as follows: Cl) the
No. 1 entry of 1st Right to the bore hole; C2) the No. 1 Right
entry through the Kennedy stopping to the No. 3 entry before and
after the seal construction began; and (3) the No. 1 entry to
No. 2 entry. The bore hole constituted part of the loop.
The witness's study, without the Kennedy stoppings in place,
indicate a concentration of methane at 1st Right of 5 percent.
In the No. 7 entry the methane was 4.5 percent. Methane was
originating at the face of 1st Right.

2034

There is a problem of 4.5 percent methane concentration in
the No. 7 return. Methane should not exceed a concentration of
1.5 percent.
With Kennedy stoppings in place and with a fly curtain,
the methane concentration at the face of 1st Right would be
4 percent.
In the return air in the No. 7 entry there would be 1.5 percent concentration of methane. With a Kennedy stopping and fly
curtain in place, the bore hole would become a major part of the
ventilation loop. A fly curtain will increase the leaking rate
from No. 7 entry into 1st Right.
Any methane behind the Kennedy stopping would move primarily
to the bore hole, but some would leak through the right side of
the Kennedy stopping into 3 North.
Methane was being liberated by 1st Right and there was methane behind the Kennedy stoppings. There was also an explosive
mixture of such methane behind the Kennedy stoppings and a mixture could be as high as 100 percent. However, if there was a 25
percent concentration, then this was an explosive mixture. The
witness would expect an explosive mixture of methane behind the
Kennedy stoppings at some point in time. When the inspector
measured, there would have been different levels of methane
behind the stopping itself.
The test methods used by the MSHA inspectors were inadequate. The resulting samples tend to be on the low side as to
combustibility. The inspector took samples at one of the Kennedy
stoppings. There was a major leakage, which would be a point of
greatest leakage.
If Mitchell used the inspector's procedure, he wouldn't have
been able to determine the air and gas mixture on the inby side
of the stoppings.
The inspector was monitoring the atmosphere, but it may not
have all been behind the Kennedy stoppings.
You could end up with 1000 different analyses. If a person
wanted to learn an air-gas mixture by the Kennedy stoppings he
should take samples at the bore hole. A sample taken at any
other place would not be accurate.
If a reading at the bore hole was between 5- to 15-percent,
the first reaction of the witness would be to prevent anyone from
entering the area.

2035

If methane concentration is above 15 percent (above 20 percent asphyxiation can be expected), then no one should enter the
area.
Mr. Mitchell made an in-depth study and concluded there were
no ignition sources in 1st Right.
In connection with this, he
examined four conductors and questioned people at the mine.
CA
conductor is something that could spark an ignition.) A con-·
ductor could be a pipe (including plastic), telephone lines,
track, and trolley wires, or any wires in the explosive atmosphere.
The company followed standard procedures and made certain
that all conductors had been disrupted. usually one joint of
track is removed for a distance of 30 feet.
In addition, electrical wiring is cut, folded back, and taped.
Mr. Mitchell was concerned about friction ignition1 that is,
sandstone or quartz crystal in sandstone which have a potential
for sparking. There is no such rock in the mine and, if there
was, it wasn't at the place of the breakage. The area of concern
in the roof fall would not exceed 30 feet divided by 4 or 7.5
feet.
In that area you could develop strain, which would cause a
spark.
There were no steel bolts in the area. Steel bolts are a
sparking hazard. If, due to a roof fall a bolt is torn apart,
it will generate sufficient sparking energy.
If a bolt bearing plate is made of silicone steel, or coated
with aluminum paint, a spark could result if it struck sandstone
on the floor.
A piece of aluminum rusty steel also creates energy sufficient to spark, if it is falling at 30 feet per second. Sandstone rock falling 30 feet is capable of creating a spark.
In this mine,. the plates have no aluminum paint. However,
an area of concern was aluminum pop cans. If a roof falls and
strikes an aluminum can across a dry rusty area a spark can
result. However, in this mine no such spark could occur because
there is no probability that there was a dry aluminum can in the
area.
Track is also a potential for sparking but there was no
track or trolley wires behind the Kennedy stoppings. In addition, there was no belt structure in 1st Right. Mr. Mitchell
did not inquire about the presence of trolley hangers.

2036

There were mandoors in 1st Right but the area was flooded
up to crosscut No. 7. Mandoors would not constitute an ignition
source. Even though such .doors are made of steel there is insufficient energy for sparking.
Based on his analysis of the area, Mr. Mitchell was satisfied that there was no ignition source in 1st Right behind the
Kennedy stoppings. Based on his experience, it was not reasonable for an inspector to conclude that it was reasonably likely
that death or serious injury could occur. Further, there was no
basis to conclud~ that there was an imminent danger to the miners.
If imminent danger existed, MSHA could have required inert gas to
be pumped into the bore hole.
Given the manner in which the Kennedy stoppings were installed, it is not unusual for the company to have used such
stoppings as it did.
Seals could not have been built by miners wearing self-contained apparatus. Working with such apparatus destroys a miner's
peripheral vision. Miners should never be permitted to wear such
equipment for longer than an hour. If the miners were building
seals and the Kennedy stoppings had not been erected, the men
would be exposed to an explosive concentration of methane, or
they were in an area where they could be asphyxiated.
(Exhibit
C-9 illustrates testimony of the witness; the figures of Exhibit
C-9 came from a computer model.)
Mr. Mitchell was familiar with 30 C.F.R. § 75.729. The
regulation is statutory and it was written by Congress. Based on
his knowledge of the Congressional intent and the related matters, the witness concluded that Section 75.329 does not apply to
the Golden Eagle Mine. Basically, the regulation is related to
75.305Cg)C2) which applied to mines in existence at the time it
was enacted. The regulation applicable to the Golden Eagle Mine
is contained in § 75.30 which Congress discussed.
When Mr. Mitchell was at the Golden Eagle Mine, he visited
2d South; he also heard the testimony of the witnesses regarding
the section. He did not do a computer analysis in 2d South
because he believed the area was non-ventilatable.
Black damp is an oxygen-deficient atmosphere.
damp was officially called "choke damp."

Pure black

In 2d South, Mr. Mitchell marked "Dip" on the map. It is
shown with a green arrow. The dip is from the face to the open

2037

area of the mine. One would anticipate that black damp would
flow into West Main. The coal absorbs oxygen and also exhales
carbon dioxide. Black damp can develop in ventilated areas of
the mine.
Based on the information Mr. Mitchell received, 2d South
could not be ventilated because the stopping had been crushed and
the flow of air could not be regulated. Airflow would, to some·
degree, depend upon the elevation and temperature differentials.
One would expect black damp in an area where the ventilation was
disrupted.
If an area cannot be examined due to black damp, then
the company's action in placing Kennedy stoppings was a reasonable procedure.
Further, a proper procedure was to examine the
Kennedy stoppings weekly to see if they were not leaking excessively. Some leaking is all right.
If the Kennedy stoppings
were put in too deep, then the examiner would be entering a place
where there is no ventilation. He could be asphyxiatedL The
best test against black damp is a plain safety lamp RMX 240 which
would give a warning of black damp.
On February 13, 1990, MSHA inspectors took a reading and
concluded there was an explosive mixture behind the Kennedy stoppings. This was not a valid conclusion because use of an aspirator is not likely to give a valid representation of an area
which extends some 2000 feet behind the tube. In addition, the
surveillance tube in this case was too short. It should have
been 60- to 70-feet inby the seal or Kennedy stoppings. Kennedy
stoppings are leaky and would have a constant flow of air back
and forth Cinby and outby the seals).
Mr. Mitchell recommended the operator extend the surveillance tubes at least to the third crosscut. Such a tube must be
away from the area affected by the leakage in order to obtain a
correct reading.
If Mr. Mitchell had taken samples as the inspector had done,
he would be unable to render any judgment. The inspector did not
wait for bottle sample results.
(Exhibit S-6 was analyzed by the
Mt. Hope Laboratory.) Mr. Mitchell gave no significance to the
sample number A 2109 on Exhibit S-6 since it was inconsistent
with the other samples. All samples must be tested for reliability created in this situation. The beeswax used to seal the bottles could have been contaminated.
There was probably an explosive as well as a non-explosive
mixture behind the Kennedy stoppings on February 13. One would
expect that there would be different air mixtures of methane
behind the stoppings. The mere existence of a mixture is not

2038

dangerous as the primary potential is asphyxiation.
In
Mr. Mitchell's opinion on February 13, 1990, there were no ignition sources in 2d South.
In connection with this, he considered
the thermal paint and conductional ignition.
In Mr. Mitchell's view, there were no means to conduct any
energy into the 2d South section. In arriving at this conclusion, he examined the track, trolley wire, and belt structures.
He arrived at the same analysis as previously in connection with
soda pop cans.
He also considered thermal leakage and studied the lithology. The lithology (rock formation) was free of strata.
It is
normally associated with frictional ignition potential. In this
situation there were wet surfaces. Portions of the bottom had
heaved but other portions had not.

--

The kitchen was located at about Nos. 18 and 22 crosscut.
It contained lots of black damp but no ignition source.
For methane to be ignited with oxygen, there must be at
least a 12 percent concentration. Mr. Mitchell also concluded
there were no ignition sources from the mandoors, roof mats, roof
bolts, or metal bolt plates. Accordingly, there was no basis for
the inspector to consider an imminent danger. Mr. Mitchell would
also have advised against constructing the seals.
MSHA would not terminate the order until the methane behind
the seals reached a non-explosive range. MSHA representatives
said that there were arguments against this view.
Even if the
area was below the explosive range, there still could have been
explosive concentrations in the area.
The Kennedy stoppings were made of metal, but these stoppings were free of silicone and light alloys which could cause a
spark. The seals that would be eventually constructed should be
hitched into the roof. If this is done, the worst thing that can
happen is that the roof will break away and become ineffective.
MSHA requires that seals be constructed with an angle iron on
both sides of the seal.
After he visited the mine, Mr. Mitchell concluded that no
imminent danger existed on the date the orders were issued.
In
arriving at his conclusion, he assumed the information he had was
credible.
Bore hole flows can be ascertained with a reasonable degree
of certainty. A Kennedy stopping and a seal are two different

2039

things. The witness was familiar with the instrument used by the
Boyd company.and he understood that the Boyd company borrowed
instruments from MSHA to do its survey. He expected the results
he found.
Mr. Mitchell did not know if the Boyd survey measured
methane concentrations.
The bore holes were closed by the operator on the 17th to
assure MSHA that there would be methane concentrations above the
explosive range •.
If an atmosphere is unsafe, seals can be constructed after
the atmosphere is stabilized.
Witness Mitchell conceded there w~s an explosive mixture
behind the Kennedy stoppings.
2d South is an area of the mine that should have been sealed
or ventilated.
It was not ventilated on February 13.
Additional Evidence Presented by the Secretary
WILLIAM A. BRUCE (called by the Secretary), is the Chief of
the Ventilation Division for MSHA. He has been so employed since
June 1981. He is a graduate of the Colorado School of Mines and
specialized in mine safety and health. He has also co-authored
over 100 papers. At least half of them have dealt with ventilation and fragmentation of rock.
He has reviewed papers concerning fractional ignition and
explosion-proof stoppings. Mr. Bruce identified Exhibit S-11
which outlines the explosive mixtures at which oxygen can
explode. From Exhibit S-6 the sample taken by the inspector,
A-2109, falls within the flammable area of methane. The methane
concentration there was 6.19 percent.
Ignition sources can be caused by roof falls. An incendive
spark is the same as--an ignition source. Mr. Bruce has not
visited the Golden Eagle Mine but he was present when the inspectors testified concerning the mine. He also reviewed the lithology as indicated in Exhibit c-2. He had not reviewed related
lithology exhibits shown by Exhibit C-10 and C-11.
He also studied Golden Eagle rock samples. The samples had
been obtained by Inspector Mel Shively and he secured them outby
the seals in 2d South in entries 1 through 6. Samples were taken
from the roof of the six entries. An analysis indicated that the
rock samples were 19 percent quartz.

2040

It was Mr. Bruce's opinion that the Kolanski and Neggi
report was correct. It states ignition by sandstone on sandstone with a pressur~·~f 50 pounds could easily produce an
incendive spark. Kolanski and Neggi made their tests in an
explosive chamber of methane.
A drop of 2.3 feet would produce a velocity of 3 feet per
second.
In the Mr. Bruce's opinion on February 13 there could have
been an ignition source from sandstone rubbing on sandstone.
Also, a roof bolt seal falling at 32 feet a second would produce
sparking.
Other ignition sources could be a roof fall of shale at a
greater velocity or with a direct impact on aluminum or rusty
steel.
At this particular mine the sandstone was above the shale
but there are numerous sandstone channels in the area.
Mr. Bruce pointed out that each of the three lithological
surveys appear quite different. They are now noted on Exhibits
C-2, C-10, and C-11.
The map of 2d South does not show any sandstone but it could
occur in 2d South and 1st Right.
Roof bolts in the 2d South were also a secondary source of
ignition.
Mr. Bruce believed there was a potential source for explosion in 2d South on February 16. Accordingly, imminent danger
existed in 2d South as well as in 1st Right on February 15, 1990.
Mr. Bruce had not heard that piezoelectric quartz had to be
at least 30 percent of a rock fall in order to create an incen- ·
dive spark. The ignition frequency in the Kolenski and Neggi
report was 19 ignitions out of 119 efforts. The witness did not
know what type of sandstone was used.
On Exhibit C-10, the sandstone was 42 feet above the Maxwell
coal seam and on Exhibit C-11 the distance was 26! feet to 33
feet.
Mr. Bruce agreed that the issue was a possibility rather
than a probability. When MSHA Representative Mel Shively was in
Denver, Mr. Bruce directly verified with him as to where he had
obtained his samples at the Golden Eagle Mine.

2041

JOSEPH W. PAVLOVICH, MSHA's Sub-district Manager in
McAlister, Oklahoma, is responsible for enforcing the Mine Act
over the mines in his jurisdiction. He has been so employed
since August of 1989 and has worked for MSHA for 15 years. He is
a person experienced in mining.
As part of his duty he has inspected the Golden Eagle Mine.
An MSHA inspection began February 13, 1990. He arrived at the
2d South area the same date. Exhibit C-4 shows where the witness
left the mantrap and walked into the 2d South area.
Inspector Jordan told Mr. Pavlovich that he had examined all
six entries in the area and found Kennedy stoppings erected
across each entry. He also stated that he found methane with a
hand-held detector of about 1.5 to 1.7 percent outby the
stoppings.
Mr. Pavlovich's first reaction was that an unventilated area
of the mine had not been sealed. The mine liberates five to six
million cubic feet of methane in a 24-hour period.
Mr. Pavlovich was involved in a decision to issue the imminent danger order in 2d South.
The men walk the belt entry and
there was a lot of the belt structure leading to the first stopping which had been cut. That is why Inspector Jordan took a
methane reading near the face; he detected a 2.2 percent concentration.
This indicated the methane had increased in the last
hour or two.
He had found 1.5 or 1.7 percent on his initial
examination.
If there was 2.2 percent, there would be more
methane behind the stopping.
A further factor leading to the issuance of the imminent
danger order occurred when they walked over to the far righthand entry which the company calls No. 1. A vent pipe for the
sample tube had been put through. The inspectors began to aspirate the line. The methane climbed 0 to 9 percent and he immediately removed the equipment to keep it from burning the sensing
cell. This was tried on numerous occasions and continued to do
the same thing.
This·indicated to Mr. Pavlovich that a concentration of at least 9 percent of methane existed behind the stopping. This would be a very dangerous concentration.
Mr. Feltager stated the tube projected about 40 feet into the
area~·
Mr. Pavlovich felt that they were getting a good representative sample. Bottle samples were also taken. Mr. Feltager
stated that he thought that there was about 1600 feet of track
left in the area. He wasn't sure about whether there was trolley
wire. There was a load of belt structure and belt ropes and
there may have been a rock dust pipe in the area. Also, roof

2042

bolts, pans, and assorted metal objects could have been left behind during mining. This indicated to Mr. Pavlovich that there
was a very good possibility of an ignition source. The occurrence of metal or the sparking of metal on metal or rock on metal
could have ignited the methane.
Mr. Pavlovich also considered the possibility of a roof fall
in 2d South. The area of the mine that they were dealing with
was twenty-five crosscuts deep and six entries wide.
If an ignition occurred, it would definitely propagate into the active
areas of the mine, or disrupt enough of ventilation to harm the
miners, or create conditions that would endanger the miners.
Mr. Pavlovich agrees that he was not exactly certain what he
was dealing with behind 2d South. He determined there was a condition of imminent danger because of the large quantity of methane and the possibility of an ignition source.
Inspector Jordan had a CSE-102 methanometer. Inspector
Duran normally carries a MX-240. The witness had given his
MX-240 to another inspector because his equipment had failed.
It is unusual that explosive mixtures of methane are found.
Mr. Pavlovich did not consider that it was a choice to send an
inspector back for a Riken methanometer.
Mr. Pavlovich knew
there was a quantity of methane behind the stoppings. He also
knew there would be an explosive mixture.
Methane that came out
of the sampling tube indicated there was large quantities of
methane. Accordingly, he was not going to send for the 100
percent (accurate) instrument with people working in the mine.
After finding these conditions, Messrs. Duran, Jordan, and
Feltager discussed the issue of the amount of methane.
Mr. Feltager told him of the metal objects he thought were back
there.
In Mr. Pavlovich's opinion, an explosion would endanger
the lives of every man in the mine. Accordingly, a decision was
made to remove everyone from the mine.
Mr. Pavlovich identified Exhibits C-2, C-10, and C-11 as being drawings as submitted by WFC and its approved roof control
plan. After reviewing the lithology, no one could determine the
rock composition precisely from the four pinpoint bore hole
locations.
After the conversation with the superintendent, Mr. Pavlovich informed Mr. Feltager that it was necessary to systemically
withdraw everyone from the mine. Mr. Feltager called every panel
where miners were working and told them to proceed to the surf ace
and to withdraw power. They were to travel as quickly as possible. The men also left the area quickly and evacuated the
mine.

2043

At the bathhouse there was a meeting with management representatives • .At the company's request, the group traveled to the
main office. At the meeting were Roland Phelps, Donalee Boatright, Don Jordan and the witness. On the company's side were
Dave Huey, Rick Callor, and Donald Giacomo. Mr. McGlothlin did
not participate in the full meeting.
Mr. Huey asked what his options were to get the mine back in
operation.
Mr. Pavlovich informed him that the area would either
have to be ventilated adequately or sealed. Adequately means
that all gases must be reduced to acceptable levels.
The Kennedy stoppings were not sealing anything. Such stoppings allow air to pass freely and they are not structurally as
sound as a seal, nor are seals explosion proof. A large roof
fall could blow them out. Mr. McGlothlin suggested that they
ventilate the area. Mr. Huey said he could not ventilat~ the
area because there were too many roof falls there.
He also
stated he was afraid to send anyone in there, nor would anyone
volunteer to clip the Kennedy panels or the wires holding them
together because of the fear of an explosion.
The company's
other option was to seal the area with explosion-proof bulkheads; that is, permanent seals.
Mr. Huey and Mr. Callar decided they would seal the area.
MSHA requested the company prepare written safety precautions~
Mr. Pavlovich was informed by telephone on the morning of
the 17th that the seals had been completed. Production was
allowed to resume. From the day the order was issued the inspectors worked around the clock at the mine and continued to
monitor the area. Mr. Pavlovich wanted to be sure the seals
were functioning properly. After production was resumed MSHA
continued to monitor the seals based on the operator's samples.
The sampling was done on a two-hour basis at each of the sampling
tubes. In the 1st Right section, ventilation had been cut off
for the use of temporary stoppings for a period of more than a
year.
Mr. Pavlovich indicated that there was a lot of methane being liberated. If there was any ventilation, it was not sufficient to dilute or render harmless the dangerous gases.
In the
view of Mr. Pavlovich it is not good practice to put stoppings in
an area and not be working on the seals. To block off an area
for a year ignores explosive mixtures of methane. This is not a
good mining pradtice.
If Mr. Pavlovich was the operator he would have delivered
materials to the site before the track was removed.

2044

In each of the kitchen locations you would expect to find
pop cans and. aluminum foil. There are a succession of kitchens
as the mining progresses •.
Inspector Shively told Mr. Pavlovich that he was concerned
over the fact that he did not recognize a condition of imminent
danger. Most of Mr. Shively's inspections deal with electrical
equipment in the face area. Mr. Shively did indicate to Jack
Feltheger some inquiry about when they were going to start building the seals. No particular date was given.
Prior to beginning construction of the permanent seals, the
company submitted a copy of the plan to the MSHA's district man~
ager. The plan set forth the precautions the operator would take
and it also contained a series of drawings.
Mr. Pavlovich was informed when the 107Ca) order was issued
at the 1st Right section on February 16. Mr. Phelps told
Mr. Pavlovich the circumstances under which the imminent danger
order was issued.
Mr. Pavlovich felt a similar situation was present as they
had found in 2d South. He had heard from Mr. Phelps the percentages of methane that Mr. Duran found outby the temporary stoppings and this was sufficient to justify an imminent danger particularly in view of the huge body of methane behind the stoppings. The fact that there was water in one of the areas did not
change anything. In Mr. Pavlovich's experience the most common
source of mine disasters in underground coal mines is the accumulation of methane in explosive quantities.
Additional Evidence Presented by Operator
DONALD W. MITCHELL (recalled): Mr. Mitchell does not agree
with Mr. Bruce's testimony that the Mitchell Barrett seal could
withstand a force of 20 PSI. It will withstand more than that.
Extensive tests show that it will withstand forces up to 50 PSI.
Mr. Mitchell al-so disagrees with Mr. Bruce's testimony concerning the effect of water in an abandoned area preventing an
ignition. In sum, water is the most effective quenching agent
for incendive sparks.
Witness Mitchell identified Exhibit C-12 as a report of the
U.S. Bureau of Mines entitled "Frictional Ignition Of Gas During
A Roof Fall". The document was written by John Nagy and
Edward Kawenski. The work in the report was done at the direction of the witness. The rock or sandstone tested was a light

2045

gray quartzitic subjected to. secondary recementation. This rock
contained in _excess of 90 percent quartz. Mr. Bruce testified
that the Golden Eagle rock samples contained 19 percent piezo
electric quartz.
The samples on S-12 range from 16 to 19 percent quartz.
The potential for ignition in Golden Eagle Mine in 2d South
and 1st Right sections is possible. The possibility is negligible.
A report prepared in the case shows that rock containing
less than 30 percent quartz has a neglible incendive temperature
potential CITP).
(See Exhibit C-13.) These studies indicate
that the persons experimenting have never been able to obtain an
incendive ignition of methane when the rock contained less than
30 percent quartz. The authors, instead of saying "no potential," merely state that the potential is "negligible."
Mr. Mitchell discussed at length the Belle Isle explosion
involving a salt mine in Louisiana and the part he played in that
investigation. He concluded that it was not valid to compare the
Belle Isle explosion conditions at the Golden Eagle Mine.
In the
Golden Eagle Mine there was no shot firing nor any open electrical circuits in 2d South or 1st Right.
Mr. Mitchell does not agree with Mr. Bruce's testimony that
any form of sandstone could create an incendive spark. This is
because the potential for incendivity is a direct function of the
quartz content. There is a high potential that the sandstone
contains sufficient piezoelectric quartz and is subject to a
sufficiently high strain as might be encountered in a longwall
or in a pillaring operation.
The inspector thought from Mr. Duran's statements that
miners were working in an explosive gas area.
He didn't say
check curtains had been taken down. Mr. Duran told him he didn't
have ventilation curtains taken down.
Mr. Mitchell also disagreed with Mr. Bruce's statement that,
any time a coal mine contains an explosive mixture of methane,
there is a situation of imminent danger. His view was that, if
this position was upheld, they would have to shut down almost
every coal mine in the United States. There are explosive concentrations in almost every longwall operation.
The witness indicated that Exhibit C-14 is used throughout
MSHA for evaluating the explosibility of an area. Exhibit C-14,
a nose curve, can be used to determine the explosibility of any
and all atmospheres in coal mines.

2046

Witness Mitchell further explained why the two mine explosions (NEBO and Jim Walters No. 3) were not comparable to the
Golden Eagle.Mine. The MSHA representatives and the witness
agreed that the probable ignition source for the methane behind
the seals in the NEBO and Quilan Mines was a lightning strike.
In the Jim Walter No. 3 Mine there was a fire behind the seals.
Mr. Mitchell indicated with a blue magic marker the proper
place, in his opinion, to take methane checks outby the Kennedy
stoppings. Mr. Mitchell used the letters "GP" and marked the
gas points. Mr. Mitchell indicated that there was a difference
between gob fire~ and the situation at the Golden Eagle Mine in
2d South and 1st Right sections.
He treated the area behind the Kennedys as gob because it
was not travelable. He would treat the area behind the seals as
gob because it is not an area where a miner could travel safely.
The immediate roof in the 2d South area is basically shale.
The industry's goal is to attempt to control the immediate roof
when a seam is being mined.
Mr. Mitchell initiated the work involved in what became the
Nagy and Kawenski report (Exhibit C-12.) He does not agree with
the conclusions contained in the report.
Shale contains quartz but it is not necessarily piezoelectric quartz.
One does not expect to find piezoelectric quartz in
shale. One would anticipate it would be well below the 30 percent level in shale. In the 2 South and 1st Right sections any
roof fall would consist of a soft wet and unconsolidated shale
material.
It generally crumbles, breaks, and falls out around
the roof bolts. You would seldom have pieces larger than a head.
Discussion and Further Findings
The initial issue presented here is whether a condition of
imminent danger existed. The evidence presents a credibility
determination on such issue.
The withdrawal orders herein were issued under the authority
of Section 107Ca> of the Act, 30 u.s.c. § 817Ca), which provides
as follows:
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,

2047

such representative shall determine the extent
of the area of such mine throughout which the
dan.ger exists, and issue an order requiring the
operator of such mine to cause all persons, except those referred to in section 104(c), to be
withdrawn from, and to be prohibited from entering, such area until an authorized representative
of the Secretary determines that such imminent
danger and the conditions of practices which
caused such imminent danger no longer exist.
The issuance of an order under this subsection
shall not preclude the issuance of a citation
under section 104 or the proposing of a penalty
under section 110.
The term "imminent danger" is found in the Federal Coal Mine
Health and Safety Act of 1969 and amendments to the 1977 Act.
The term means:
[T]he 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).
Historically, the first tests for determining whether an
imminent danger exists were set forth in Freeman Coal Mining
Corp., 2 IBMA 197, 212 (1973), and Eastern Associated Coal
Corp., 3 IBMA 128, 80. I.D. 400 (1973), aff'd, Eastern Associated coal corp. v. Interior Board of Mine Operations Appeals
et al., 491 F.2d 277 (4th Cir. 1974). In Eastern the Board of
Mine Operations Appeals, formerly a division of the Interior
Department's Office of Hearings and Appeals, herein "BMOA," held
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 affected area before the dangerous condition is eliminated~ thus, the dangerous condition
cannot be divorced from the normal work activity.
2 IBMA at 129.
In Freeman, the BMOA elaborated on its decision in Eastern
and held that the word "reasonably" as used in the definition of
imminent danger necessarily means that the test of imminence is
objective and that the inspector's subjective opinion is not
necessarily to be taken at face value. The Board also gave this
test of "imminent danger":

2048

••• would a reasonable man, given a qualified
inspector's education and experience, conclude
that the facts .indicate an impending accident
or disaster, threatening to kill or to cause
serious physical harm, likely to occur at any
moment, but not necessarily immediately? The
uncertainty must be of a nature that would induce a reasonable man to estimate that, if normal operations designed to extract coal in the
disputed area proceeded, it is at least just as
probable as not that the feared accident or disaster would occur before elimination of the
danger.
(Emphasis added). 2 IBMA at 212.
The United States Court of Appeals for the Seventh Circuit
in Freeman Coal Mining Company v. Interior Board of Mine Operations Appeals, et al., 504 F.2d 741 (1974), while quoti~g BMOA's
definition of· "imminent danger," went on to add its own:
An imminent threat is one which does not necessarily come to fruition but the reasonable likelihood that it may, particularly when the result
could well be disastrous, is sufficient to make
the impending threat virtually an immediate one.
(Emphasis added). 504 F.2d at 745.
The Commission, in Pittsburg & Midway Coal Mining Company
v. Secretary of Labor, 2 FMSHRC 787 (1980), also set a course for
approaching imminent danger questions:
••• we note that whether the question of imminent danger is decided with the "as probably as
not" gloss upon the language of section 3(j), or
with the language of section 3(j) alone, the outcome here would be the same. We therefore need
not, and do not, adopt or in any way approve the
"as probable as not" standard that the judge applied. With respect to cases that arise under
the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801, et seg., we will examine anew
the guestion of what conditions or practices constitute an imminent danger.
(Emphasis added) •
., FMSHRC at 788.
In the enactment of the 1977 Act, the Senate Committee on
Human Resources stated as follows:

2049

The Committee disavows any notion that imminent
danger can be defined in terms of a percentage
of probability that an accident will happen;
rather the concept of imminent danger requires
an examination of the potential of the risk to
cause serious physical harm at any time.
It is the Committee's view that the authority
under this setion is essential to the protection
of miners and should be construed expansively by
inspec~ors and the Commission.
s. Rep. No. 95-181,
95th Cong., 1st Sess. ~~ (1977), reprinted in
.senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., Federal Mine Safety and
Health Act of 1977 at 626 (1978).
The situation at the Golden Eagle Mine: MSHA inspe~tors
asserted that an explosive mixture of methane concentrations
existed in a large abandoned area behind the Kennedy stoppings.
They further asserted that ignition sources also existed in the
unventilated area. No permanent seals had been erected and any
explosion would most likely migrate into the entire mine.
Given the foregoing scenario, it was claimed that a condition of imminent danger existed and an order was issued under
Section 107(a). The inspectors further ordered the work force
withdrawn.
The inspector's belief of the existence of "an impending
accident or disaster must be measured in light of their actions.
Freeman coal Mining, supra, 2 IMBA at 212.
Before MSHA would take any action in terminating the order,
it approved the operator's abatement plan. Specifically, on the
same day the order was written, it was modified to permit 113
miners to construct permanent seals in close proximity (two to
three feet) from the Kennedy stoppings. The construction took
five days with the crew working 24 hours a day. MSHA inspectors
were also present dur·ing the construction.
(Tr. 221, 404, 462 >.
In addition, MSHA had not required that the atmosphere be
stabilized with inert gas before miners were permitted to enter
the First Right section.
(Tr. 628).
MSHA's undisputed actions, as above, necessarily cause me to
conclude that MSHA did not believe "an impending accident •••
[was] likely to occur at any moment." Freeman, supra, 2 IBMA at
212. To like effect, see H.D. Enteprises, Ltd., 9 FMSHRC 1923
Cl987) (Melick, J); Climax Molybdenum Co., 2 FMSHRC 2873 (1980)
(Koutras, J).

2050

I appreciate that MSHA directed the operator to monitor the
area and to ~se non-sparking tools in the construction. But even
such precautions would not protect the miners from the hazard
perceived by MSHA, that is, an imminent explosion caused by an
ignition source in an abandoned area.
WEST 90-112-R
In this case, I conclude that no condition of imminent danger, as defined in statutory and case law, existed in the mine.
Accordingly, the contest of Order No. 2930784 should be sustained
and the order should be vacated.
WEST 90-113-R
In this case, WFC contests Citation No. 2930785 issued by
Inspector Jorda~ under Section 104(a) of the Act. The citation
and the full text of the regulation, 30 C.F.R. § 329, afe set
forth on pages 3-5, supra.
The Secretary contends that the regulation, § 75,329-1
should be applied to mines that were opened after 1970. 2/
WFC argues that Section 75,329-1 does not apply to the
Golden Eagle Mine.
In Ziegler Coal Company, LAKE 90-102-R (Sept. 21, 1990),
Commission Judge George Koutras considered the identical
arguments advanced in this case.
Section 75.329, which mirrors the statutory provision
promulgated in§ 303(z)(2) of the Coal Mine Health and Safety Act
of 1969 ("1969 Act"), requires that
[o]n or before December 30, 1970, all areas
from which pillars have been wholly or partially extracted and abandoned areas, as
determined by the Secretary or his authorized
representative, shall be ventilated ••• or be
sealed, as determined by the Secretary or his
authorized representative.

2/

Brief at 20

2051

Section 75.329-1 is a supplementary regulation promulgated to
effect § 75.329's general directive. 3/ Section 75.329-1
provides, in part, as follows:
[a]ll areas of a coal mine which pillars have
been wholly or partially extracted and abandoned areas shall be ventilated or sealed by
December 30, 1970.
In determining whether § 75.329-1 applies to the Golden
Eagle Mine, the regulation must be analyzed in light of its plain
meaning and congressional intent.
'"[I]n statutory construction,
the primary dispositive source of information is the wording of
the statute itself.'" International Union, United Mine Workers
of America v. Federal Mine Safety and Health Review Commission,
840 F.2d 77, 81 CD.C. Cir. 1988) [quoting Association of Bituminous Contractors v. Andrus, 581 F.2d 85, 861 CD.C. Cir. l978)].
4; The plain meaning of the statutory language is conclusive
unless a clear legislative intent to the contrary can be demonstrated. Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-43 (1984); United States Lines,
Inc. v. Baldridge, 677 F.2d 940, 944 CD.C. Cir. 1982); Freeman
United Coal Mining Co., 6 FMSHRC 1577, 1578 (1984).

3/
When the Secretary of the Interior promulgated the first set
of regulations to implement the interim mandatory standards in
Title III of the 1969 Act, he added "interpretations and supplementary regulations," 35 Fed. Reg. 5237 (Mar. 28, 1970), to particularize those statutory provisions. See, ~' Jim Walter
Resources, 7 FMSHRC 493, 495 (1985); Florence Mining Co., 5
FMSHRC 189, 190, 195 (1983) C"in order to clarify Congressional
intent and to narrow the overly inclusive language of the statutory standard [§ 75.1405] the Secretary promulgated § 75.1405-1
•••• ") Among those interpretive and supplementary regulations
was § 75.329-1.
·
·

ii

See also Asarco, Inc. - Northwestern Mining Department v.
Federal Mine Safet and Health Review Commission, 868 F.2d 1195
(10th Cir. 1989); Emery Mining Corp. Utah Power and Light Co.,
10 FMSHRC at 1349. See Rubin v. United States, 449 U.S. 424, 430
(1981) (plain meaning governs statutory construction); Phelps
Dodge Corp. v. Federal Mine Safety and Health Review Commission,
681 F.2d 1189, 1192-93 C9th Cir. 1982) (plain meaning governs
construction of mine safety regulations).

2052

According to its plain language, § 75.329-l's application is
limited to areas which were pillared or abandoned prior to December 30, 1970, as evidenced by Cl) the use of past tense ("have
been ••• extracted" and "abandoned") in conjunction with ·the time
limitation of "by December 30, 1970" and (2) the directive of
§ 75.329-l{b). Congress's use of the past tense in§ 303Cz)C2)
of the 1969 Act and the Secretary's use of the past tense of it
in the supplementary § 75.329-1 demonstrate an intent to extend
those requirements only to areas pillared or abandoned prior to
December 30, 1970, and to require that only those areas be ventilated or sealed "by" that time. s; "Congress could have phrased
its requirement in language that-looks to the [future] ••• , but
it did not choose this readily available option." Gwaltney of
Smithfield, 484 U.S. at 57.
"Moreover, Congress has demonstrated
in yet other statutory provisions that it knows how to avoid this
[retro]spective implication by using language that targets wholly
[prospective ~vents]." Id.; see,~' 30 C.F.R. § 75.3_26 C"[i]n
any coal mine opened after March 30, 1970); 30 C.F.R. § 75.330
C"[i]n the case of mines opened on or after March 30, 1970); 30
C.F.R. § 75.500 C"[o]n or after March 30, 1971"); 30 C.F.R.
§ 75.501 C"[o]n or after March 30, 1974"). 6;
Further, the directive of § 75.329-l(b) indicates that the
intent of § 75.329-l(a) was to require that areas of mines in
existence when the 1969 Act was passed by ventilated or sealed
prior to December 30, 1970. Section 75.329-lCa) provided that if

5/
"By" means "[b]efore a certain time; ••• not later than a
certain time; or or before a certain time •••• " Black's Law
Dictionary 182 (5th ed. 1979). The dictionary is evidence of
common usage, Puerto Rican Cement Co., 4 FMSHRC 997, 998 n.l
(1982) [citing 2A Sutherland, Statutes & Statutory Construction
§ 46.02 at 52 (4th ed. 1973)], to which adjudicatory bodies often
refer to deciding matter of statuory construction. See Phelps
Dodge Corp., 681 F.2d at 1192; Jim Walter Resources, Inc.,
7 FMSHRC at 496.
6/
There are apparently no cases construing "on or before
December 30, 1970, in § 75.329 or "by December 30, 1970" in §
75.329-1. Cf. C.F. & I. Steel Corp., 3 FMSHRC 99, 104 (1981)
(Boltz, J) (the first sentence of § 75.326, which begins "[i]n
any coal mine opened after March 30, 1970," does not apply to
mines opened before March 30, 1970); Rushton Mining Co., Docket
No. PITT 73-371-P, slip. op. at 22 (Jan. 31, 1975) (Cook, J)
Csame).

2053

an area of a mine existing in 1969 could be ventilated, MSHA had
to be notified and approve. Section 75.329-l(b) then required:
The request for permission to ventilate
such areas must be submitted in time to·allow
consideration of the request, to obtain approval, and to permit the operator to install the
ventilation system, or to install seals in the
event the request to ventilate is denied, or
or before December 30, 1970.
30 C.F.R. § 75.329-l(b) (emphasis added).
Indeed, the only interpretation of §§ 75.329 and 75.329-1
consistent with the statutory scheme is that those regulations
require only areas already pillared or abandoned prior to December 30, 1970, to be ventilated or sealed.
See Gwaltney_of Smithfield, 484 U.S. at 59. Any other reading would make § 75.329-1
incomprehensible, violating the rule of construction that regulations must be interpreted "as a whole, in light of the overall
statutory and regulatory scheme," Campesinos Unidos v. United
States Department of Labor, 803 F.2d 1063, 1069 (9th Cir. 1986),
"to give them a harmonious, comprehensive meaning, giving effect
••• to all provisions." Mccuin v. Secretary of Health and Human
Services, 817 F.2d 161, 168 (1st Cir. 1987) (citing Weinberger v.
Hynson, 412 U.S. 609, 632-32 (1973).
In 1969 Congress was concerned with methane accumulations in
areas of mines that (1) were being pillared, (2) had been pillared or abandoned, or (3) would be pillared and abandoned. H.R.
Rep. No. 91-563, 9lst Cong., 1st Sess. 20-21, reprinted in House
Committee on Education and Labor, 9lst Cong., 2d Sess., Legislative History of the Coal Mine Health and Safety Act, 578-79
(Comm. Print 1970) ("Legislative History"). Congress enacted
§ 303(z) of the Act to deal with methane accumulations in the
three situations described above:
1. Section 303(z)(l) requires operators to ventilate
an area "[w]hil~ pillars are being extracted" from it.
That section of the Act was recodified without amendment in 30 C.F.R. § 75.328.
2. Section 303(z)(2) required operators "within nine
months after the operative date of this subchapter"
(by December 30, 1970) to ventilate or seal all areas
in existing mines which had been pillared or abandoned.
That section was recodified without amendment in § 75.329,
which was supplemented by § 75.329-1.

2054

3. Section 303(z)(3) requires mines and sections of
mines opened after the Act's effective date (March 30,
1970) to be designed so that abandoned sections can
be sealed in accordance with an approved plan. That
section became § 75.330 of the regulations.
Even assuming that the plain language in light of the statutory scheme, "Admit[ted] a smidgen of ambiguity sufficient to allow a look at the legislative history, here such history provides
no basis for overturning ••• the clear meaning of [the regulation]. International Union, United Mine Workers of America v.
Mine S~fety and Health Administration, No. 89-1563,. slip op. at
4-6 (D.C. Cir. Apr. 13, 1990). The House Report and the Confe~
ence 'Report bolster the interpretation that§ 75.329 (and the
supplementary § 75.329-1) were intended to apply to mines and
sections of mines already in existence when the 1969 Act became
effective (giving those mines nine months to ventilate or seal),
leaving § 75.330 to deal with methane in mines and sections of
mines opened after the 1969 Act's effective date. 7;
The H- se RP.port distinguishes the requirements for existing
mines from those for new mines as follows:
Seals and bulkheads shall be used to isolate
in an explosion-proof manner all abandoned areas
in existing mines.
[§ 303(z)(2) of the Act,
§§ 75.329, 75.329-1]. In addition, wherever
possible, new areas of existing mines will be
"sectionalized" with explosive-proof sealing
when abandoned, that is isolated from active
sections.
[§ 303(z)((3) of the Act,§ 75.330].
In new mines, opened after the operative date
of the Act, it is intended that the mining system be such as to permit isolation by explosionproof bulkheads of each section of a mine as it
is abandoned.
[§ 303(z)(3) of the Act, § 75.330].

7/
This construction of §§ 75.329 and 75.329-1 is also supported by witness Mitchell's testimony.
(Tr. 643-645).
Mr. Mitchell was Assistant Chairman of the Bureau of Mines Task
Force responsible for drafting the regulations to implement the
1969 Act.
(Tr. 64li Ex. C-8). He was given specific responsibility for drafting the regulations to be promulgated under
§ 303Cz) of the Act.
(Tr. 641). He confirmed that§§ 75.329 and
75.329-1 apply only to areas opened prior to December 30, 1970.
(Tr. 643-645).

2055

H.R •• Rep. No. 91-563, 9lst Cong., 1st Sess. 21, reprinted in
Legislative History at 579 (emphasis added).
The same tripartite statutory scheme for regulating active
pillar sections, areas already pillared or abandoned and, finally, areas to be pillared or abandoned is evident in the Conference Committee's explanation of how the three subparts of 303(z)
of the Act work in tandem to regulate present, past, and future
conditions:
The House amendment provided for the ventilation of areas of the mine while actively being
pillared in a manner approved by the Secretary or
his inspector. It also provided that, within 9
months after enactment, all min~s which are or
which have been abandoned must be sealed or ventilated, as determined by the Secretary or his
inspector. The Secretary could permit a further
time extension of 6 months.
It described how adequate the ventilation should be and the method of
sealing. In new mines and new working sections,
a plan requiring sealing would be required.

* * * * *
The conference substitute was adopted after
the House amendment.
Under this substitute, paragraph Cl) of section 303Cz) [§ 75.328] requires that areas which
are actively being pillared must be ventilated
in the manner otherwise prescribed under section
303.
Under the conference substitute, paragraph (2)
of section 303Cz) [§ 75.329] provides that, within. 12 months after enactment, all areas from which
pillars have been wholly or partially extracted,
and aban<'loned·areas shall be ventilated by bleeder
entries or by bleeder systems or by equivalent
means or be sealed.

* * * * *
Under the conference substitute, paragraph (3)
of section 303(z) provides that, in the case of
mines opened on or after the operative date of this
title, or in the case of areas developed on or after

2056

such date in mines opened prior to such date, the
mining system shall be designed, in accordance
with a plan and revisions thereof approved by the
Secretary and adopted by the operator, so that, as
each set of cross entries, room entries, or panel
entries of the mine are abandoned, they can be isolated from the active workings of the mine with
explosive-proof bulkheads approved by the Secretary or his inspector.
H.R. Rep. No. 91-761, 9lst Cong., 1st Sess. 81-82, reprinted in
Legislative History at 1043-1044 (emphasis added).
The statutory and regulatory language, the statutory scheme,
and the legislative history lead to the conclusion that §§ 75.329
and 75.329-1 apply only to sections which were pillared or abandoned before December 30, 1970. The regulations do not apply to
the Golden Eagle Mine, since the Secretary cannot show lhe mine
was in existence before 1970.
The Secretary believes § 75.329-lCa) applies to he Golden
Eagle Mine.
In this respect, she relies on cases where the
standard was successfully applied since 1970. See Christopher
Coal Company, March 1979 CFMSHRC); Itmann Coal company, 2 FMSHRC
1986 (1980); Mettini Coal Corp., 6 FMSHRC 1507 (1984).
The difficulty in the Secretary's position is that the above
cases do not involve the issues presented here. As a result,
such cases are of no precedental .value.
The Secretary further contends that the legislative history
supports her view. Such history has been previously discussed
and it supports WFC, and not the Secretary.
As noted herein, I generally agree with the well-reasoned
decision of Judge Koutras in Ziegler, supra.
Accordingly, in WEST 90-113-R, the contest of Citation No.
2930785 should be sustained and the citation should be vacated.
WEST 90-114-R
In this case, MSHA Inspector Anthony Duran issued imminent
danger Order No. 3241331.
The text of the order is set forth on page 5, supra.

2057

The evidence in support of this order contains the same
defect as existed in Order No. 2930784 in WEST 90-112-R.
For.the same reasons, the contest of this order should be
sustained and the order vacated.
WEST 90-115-R
In this case, WFC contests Citation No. 3241332 issued by
Inspector Duran under Section 104Ca) of the Act. This text of
the citation, which alleges a violation of 30 C.F.R.
§ 75.329-l(a) is set forth on page 3, supra.
As previously discussed, the cited standard, § 75.329-l(a)
does not apply to the Golden Eagle Mine. Accordingly, the
contest of Citation No. 3241332 is sustained and the citation
vacated.
WEST 90-116-R
In this case, WFC contests Citation No. 3241333 issued by
Inspector Duran.
The text of the citation is set forth on page 6, supra.
WFC contends this citation should be vacated because WFC was
not apprised of the specific violation1 further, the operator
claims it was denied administrative due process as required by 5
u.s.c. § 534{b).
The credible evidence establishes the operator was "working
on an order," but since the underlying order was invalid, this
citation must necessarily be vacated.
For the foregoing reasons, I enter the following:
ORDER
All contests pending herein are SUSTAINED and all related
orders and citations are VACATED.

..
Law Judge
/ek

2058

Distribution:
Timothy Biddle, Esq., CROWELL & MORING, 1001 Pennsylvania
Avenue, N.W., Washington, D.C. 20004-2505 · (Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)

2059

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

·OCT 2 41990
LOCAL UNION 1609, DISTRICT 2,
UNITED MINE WORKERS OF
AMERICA (UMWA) I
complainant
v.

COMPENSATION PROCEEDING
Docket No. PENN 84-158-C
Order No. 2254681; 2/16/84
Greenwich Collieries No. 1

GREENWICH COLLIERIES,
DIVISION OF PENNSYLVANIA
MINES CORPORATION,
Respondent
ORDER OF DISMISSAL
Before:

Judge Koutras

The complainant's unopposed motion to dismiss this
proceeding on the ground that the complaining miners have been
compensated and paid IS GRANTED, and this matter IS DISMISSED.

4kA.4~
Administrative Law Judge

Distribution:
Mary Lu Jordan, Esq., United Mine Workers of America, (UMWA),
900 15th Street, N.W., Washington, DC 20005 (Certified Mail)
John T. Scott and Timothy Biddle, Esqs., Crowell & Moring,
1001 Pennsylvania Avenue, N.W., Washington, DC 20004
(Certified Mail)
/fb

2060

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

2204i

OCT 2 41990
JIM WALTER RESOURCES, INC.,
.Contestant

v.

. CONTEST PROCEEDINGS

Docket No. SE 90-19-R
Citation No. 3010382; 11/1/89

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

No. 5 Mine
Mine ID # 01-01322
Docket No. SE 90-20-R
Citation No. 3009494; 11/1/89
No. 7 Mine
Mine ID #01-01401
Docket No. SE 90-21-R
Citation No. 3009294; 11/1/89
No. 4 Mine
Mine ID # 01-01247
Docket No. SE 90-23-R
Citation No. 3008996; 11/1/89
No. 3 Mine
Mine ID 01-00758

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

v.

CIVIL PENALTY PROCEEDINGS

.

JIM WALTER RESOURCES, INC.,
Respondent

Docket No. SE 90-33
A.C. No. 01-01322-03752
No. 5 Mine
Docket No. SE-90-36
A. C. No. 01-00758-03756No. 3 Mine
Docket No. SE 90-37
A. C. No. 01-01247-03860
No. 4 Mine
Docket No. SE 90-38
A. C. No. 01-01401-03771
No. 7 Mine

2061

DECISION
Appearances:

Before:

William Lawson, Esq~, ·Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama
for the Secretary of Labor;
Alfred F. Smith, Jr., Esq., and David M. Smith, Esq.,
Maynard, Cooper, Frierson, and Gale, P.C.,
Birmingham, Alabama for Jim Walter Resources, Inc.

Judge Melick

These consolidated cases are before me under section
105(d} of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et seq., the "Act," to contest four citations
issued by the Secretary of ·Labor pursuant to Section 104Ca>
of the Act against Jim Walter Resources, Inc., (Jim Walter}
and for review of civil penalties proposed by the Secretary
for the violations alleged therein. More particularly J1:m
Walter seeks review in this case of citations issued for its
refusal to acquiesce in the Secretary's demand that its Fan
Stoppage Plans (Plans} contain a provision stating in
relevant part as follows:
in the event of a fan stoppage and the miners
have been withdrawn from the mine to the surface,
the following procedures shall be implemented:
1.
Every area of the mine where miners
are required to travel or work shall be
examined by a certified mine examiner
prior to miners entering any portion of
the mine.
2.
The miners will be prohibited from
following the mine examiner while the
examinations are being made.
The Commission discussed the underlying legal authority
for the litigation of disputed ventilation plans in Secretary
v. Carbon County Coal Co., 7 FMSHRC 1367 (1985}.
It stated
in this regard as follows:
The requirement that the Secretary approve an
operator's mine ventilation plan does not mean that
an operator has no option but to acquiesce to the
Secretary's desires regarding the contents of the
plan.
Legitimate disagreements as to the proper
course of action are bound to occur.
In attempting
to resolve such differences, the Secretary and an
operator must negotiate in good faith and for a
reasonable period concerning a disputed provision.
Where such good faith negotiation has taken place,
and the operator and the Secretary remain at odds
over a plan, review of the dispute may be obtained
2062

by the operator's refusal to adopt the disputed
provision, thus triggering litigation before the
Commission.
Penn Allegh Coal Co., 3 FMSHRC 2767,
2773 (December 1981) • . Carbon County proceeded accordingly in this case. The company negotiated
in good faith and for a reasonable period
concerning the volume of air to be supplied the
auxiliary fans. Carbon County's refusal to
acquiesce in the Secretary's demand that the plan
contain a free discharge capacity provision led to
this civil penalty proceeding.!/
It is not disputed in this case that Jim Walter
negotiated in good faith and for a reasonable period
concerning the disputed provisions of the Plans at issue and
it was Jim Walter's refusal to acquiesce in the Secretary's
demand that the Plans contain the cited provisions that led
to these contest and civil penalty proceedings.
In a ~imilar
case I have held that the Secretary, as the moving party
attempting to include the disputed provision in ventilation
plans has the burden of proof. See 5 U.S.C. § 556 (d).
Secretary v. Jim Walter Resources, Inc., 12 FMSHRC 1384
(1990).
I also determined in that case that the Secretary
must prove by a preponderance of the evidence that, without
her proposed change, the mine operator's Plan does not
provide an adequate measure of protection to the miners in
the subject mine.~/ I find these legal standards applicable
as well to the cases at bar.
Citation No. 3009294 alleges a violation of the standard
at 30 C.F.R. § 75.321 and charges as follows:
"a citation
is hereby issued in that the operator is presently ~perating
I/ While the dispute in these cases involves provisions of
fan stoppage plans and not ventilation plans, the resolution
of disputes over such plans should analogously be resolved
through the procedures discussed by the Commission in Carbon
County.
~I The Secretary argues that whatever decision is made by the
MSHA District Manager, whether to impose a new plan provision
over the operator's objection or whether to refuse to include
a provision the operator desires, is to be reviewed under an
"arbitrary and capricious" standard. The "arbitrary and
capricious" standard is however only applicable under the
Administrative Procedure Act to judicial review of final
administrative action following an administrative hearing.
See 5 U.S.C.
§ 706(2)(A).

2063

the No. 4 Mine without having adapted [sic] an ap~roved Fan
Stoppage plan as required by 3 0 C. F .R. § 7 5. 3 21. "_/
·
It is undisputed that the Fan Stoppage Plan adopted by
Jim Walter in 1976 had been consistently interpreted by both
the former MSHA District Manager and the mine operator for 12
years to permit miners to reenter the mine after a fan
stoppage and evacuation sequentially after resumption of fan
operations and as each section of the mine was inspected.4/
It is undisputed that when a new district manager for theMSHA district governing the subject mine assumed his position
in 1989, he determined that the foregoing interpretation was
erroneous and notified Jim Walter that as of October 11, 1989
MSHA would enforce the "national policy" allowing miners to
return underground after a fan stoppage·only after the entire
mine has passed inspection.
(Exhibit No. G-1>
A formal revision of the existing fan stoppage plaIL_was
thereafter attempted by letter dated October 17, 1989,
(Exhibit G-2). Jim Walter refused to acquiesce in the
attempted modification of the Plan and was cited for the
instant violation on November 1, 1989, apparently under an
MSHA policy providing for litigation of disputed fan stoppage
plans consistent with the Commission decision in Carbon County.
~/30 C.F.R. § 75.321 reads as follows:

Each operator shall adopt a plan on or before
May 29, 1970, which shall provide that when any
mine fan stops, immediate action shall be taken by
the operator or his agent (a) to withdraw all
persons from the working sections, Cb) to cut off
the power in the mine in a timely manner, Cc> to
provide for restoration of power and resumption of
work if ventilation is restored within a reasonable
period as set forth in the plan after the working
places and other active workings where methane is
likely to accumulate are reexamined by a certified
person to determine if methane in amounts of 1.0
volume per centum or more exists therein, and Cd)
to provide for withdrawal of all persons from the
mine if ventilation cannot be restored within such
reasonable time. The plan and revisions thereof
approved by the Secretary shall be set out in
printed form and a copy shal.l be furnished to the
Secretary or his authorized representative.
4/ This interpretation appears to be contrary to the
plain-language of the 1976 Plan and to MSHA's national policy
according to the new MSHA District Manager. The relevant
Plan provisions read as follows:

2064

MSHA Ventilation Specialist Kenneth Ely, is in charge of
reviewing ventilation and fan stoppage plans for the
corresponding MSHA district and makes recommendations ·for the
approval or disapproval of such plans within the framework of
district and national policy and regulations.
According to
Ely, the procedures formerly followed in his MSHA district
were not as safe as the uniform national MSHA procedures i.e.
requiring the entire mine to be reexamined before any miners
are permitted underground following a fan stoppage.
According to Ely, the former procedures could expose miners
reentering the mine to hazards such as methane.
It may
reasonably be inferred from Ely's testimony that the concern
is that explosive levels of methane may have built-up in yet
uninspected sections of the mine adjacent to areas that had
been inspected and to which miners had been returned to work
after a fan stoppage. An explosion or fire triggered by such
methane in an adjacent section could propagate fires and/or
explosions in adjacent sections where miners were working.
Within this framework I am convinced that the Secretary has
met her burden of proving in this case that operation of the
subject mine without the disputed provisions in its Fan
Stoppage Plan would indeed not provide an adequate measure of
protection to the miners. Accordingly the violation in the
citation is proven as charged.
In reaching this conclusion I have not disregarded the
testimony of Mine Manager Jesse Cooley, an experienced
graduate mining engineer, that the safety of miners is
"insured" under the old plan in the same fashion as their
safety would be secured under the provisions of 30 C.F.R. §§
308 and 309. According to Cooley the cited regulatory
provisons permit miners to continue working in adjacent
sections while another section may be closed because of
violative conditions. Cooley's argument fails however to
take into consideration that imminently dangerous conditions
such as highly explosive levels of methane may exist in
adjacent sections -- conditions much more severe than are
contemplated by sections 308 and 309. Cooley's argument is
therefore inapposite to the case at bar.
The citation at bar was apparently issued pursuant to a
secretarial policy providing for the challenge of disputed fan
cont'd fn.4
Upon restoration of the ventilation and after the fan
has been in operation with a normal water guage, a
reexamination shall be made of the entire mine, as
required by the regular preshift examination, before
the men are permitted to reenter the mine and before
any power lines leading underground are energized.
(Exhibit No. G-4)

2065

stoppage plan provisions and did not involve any hazard or
negligence under the precise circumstances herein. The parties
hereto have agreed that disposition of Citation No. 3009294
(Dockets SE 90-37, SE 90-21-R) will control all of the cases
herein. Accordingly, considering the criteria under section
llOCi) of the Act I find the proposed penalties of $20 in each of
the civil penalty proceedings to be appropriate.
ORDER
Citations No. 3010382, 3009494, 3009294, and 3008996 are
affirmed and Jim· Walter Resources, Inc. , is dir~cted to pay
civil penalties of $20 for each of the violatiqns charged
therein within 30 days of the date of this dee sion.

~

\

I

~I

aw Judge
Distribution:
William Lawson, Esq., Office of
Solicitor, U.S.
Department of Labor, Suite 201,
5 Second Avenue North,
Birmingham, AL 35203 (Certified Mail)
Alfred F. Smith, Jr., Esq., David M. Smith, Esq., Maynard,
Cooper, Frierson and Gale, P.C., 1901 6th Avenue North, Suite
2400, Birmingham, Alabama 35203 (Certified Mail)
nb

2066

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

22041

OCT 2 51990
RANDY CUNNINGHAM,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. PENN 90-46-D
PITT-CD 90-3

CONSOLIDATION COAL COMPANY,
Respondent

Dilworth Mine
DECISION
Appearances:

Paul H. Girdany, Esq., Healey Whitehill,
Pittsburgh, Pennsylvania, for the Complainant;
David J. Laurent, Esq., Polito & Smock, P.C.,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Weisberger

Statement of the Case
Subsequent to a hearing on the merits in this case, a Decision
was issued on July 12, 1990, finding that Respondent discriminated
against Complainant in violation of Section 105(c)(l) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(l) ("the
Act"). The Decision further ordered as follows:
"Complainants
shall file a statement, within 20 days of this Decision, indicating
the specific relief requested. The statement shall be served on
respondent, who shall have 20 days from the date service is
attempted, to reply thereto."
Pursuant to this order, on August 1, 1990, Complainant's
Counsel filed a Request for Relief.
Respondent filed a Response
to Complainant's Request for Relief on August 20, 1990. On
August 30, 1990, a telephone conference call was initiated by the
undersigned with Counsel for Complainant and Respondent, to set
deadlines to allow Counsel to submit additional Briefs and
evidence with regard to the issues raised by Complainant's
Request tor Relief and Respondent's Reply thereto. Pursuant to
the telephone conference call, Complainant filed a Memorandum of
Law and Additional Facts in Support of Complainant's Request for
Relief. On September 24, 1990, Respondent filed a Reply to
Complainant's Memorandum of Law and Additional Facts in Support
of Complainant's Request for Relief.
In a telephone conference
call initiated by the undersigned with Counsel for both Parties,

2067

Counsel were advised that the record still contained insufficient
facts with regard to a reasonable hourly rate for attorney's
fees, and the Parties were granted until October 5, 1990, to
suomit a stipulation or evidence on this issue. On October 4,
1990, Complainant's Counsel filed a statement containing the
Parties' stipulation in this regard.
Discussion

I.
The Request for Relief requests, inter alia, lost wages of
$3,628.29 plus interest, $4.00 for sending a registered notice of
his Appeal to the Commission, $4.50 spent on parking to consult
with his attorney on March 6, 1990, and $35.40 for mileage {to
file his Complaint, to give an affidavit at the MSHA Office, to
meet with MSHA Officials, to travel to his attorney's office, and
to travel to the hearing), and attorney's costs of $524.70.
These i terns were agreed to by Respondent and hence the· request
for these items of relief is granted.
II.
Complainant further seeks reimbursement for travel to the
Office of Employment Security on five occasions, traveling a
total distance of 175 miles.
In essence, it is Respondent's
position that these expenses should not be allowed, as Section 105
of the Act limits relief to only those costs incurred in connection
with the institution or prosecution of a discrimination claim
before the Commission. In this connection, Respondent asserts that
the claim for unemployment compensation was an alternate remedy.
I
reject Respondent's argument inasmuch as the legislative history of
the Act reveals an intent to require that the scope of relief provided shall encompass " • • • all relief that is necessary to make
the complaining Party whole • • • • "
{Senate Report on the Act,
s. Rep. No. 181, 95th Cong., 1st sess., at 37, (1977), reprinted in
Legislative History of the Federal Mine Safety and Health Act of
1977 {"Legislative History") at 625 (1978)).
It is manifest that
the expense incurred in pursuing unemployment benefits are the
direct consequence of having been terminated by Respondent in violation of Section 105{c) of the Act. As such, Respondent has the
obligation to make Complainant whole and reimburse him for these
expenses.
{See, Christian v. South Hopkins Coal Company,
Incorporated, 1 FMSHRC 126 (1979) CALJ Stewart) (A discharged miner
was allowed to recover the cost of his medical expenses, when he
lost medical insurance coverage as a consequence of being terminated in violation of the Act); See also, Secretary on behalf oi E.
Bruce Noland v. Luck Quarries, 2 FMSHRC 954 (1980) (ALJ Merlin) CA
miner who was discharged from his employment in violation of
Section 105{c) of the Act, could not keep up payments on his truck,

2068

and was forced to sell it, losing equity in the truck.
It was held
that the amount of the lost equity was recoverable). Hence,
Complainant ·is allowed to be .reimbursed for this travel at the rate
of 20 cents a mile.
III.
Complainant also seeks relief for travel, on November 2,
1989, to-"Masontown District 4 Office." In the itemization of
this travel the following is noted:
"Conference call with Consol
Re:
return to work." Respondent did not spacifically present
any argument why this amount should not be allowed.
It would
appear that a conference call with Respondent with regard to
returning to work, was made as a direct consequence of Complainant
having been terminated. As such, Complainant should be made whole
by reimbursing him for this travel amount, at the rate of 20 cents
a mile for a distance of 70 miles.
IV.
Complainant seek reimbursement for travel, on October 4,
1989, to the Waynesburg MSHA Office, Masontown District 4 Office,
and travel on October 5, 1989, to the Masontown District 4
Office, and Dilworth Mine 27. No explanation is provided as to
the reasons for this travel. Accordingly, I find Complainant has
not established that this travel is in any way related to his
having been discharged, and that reimbursement to him for these
travel costs would make him whole.
Accordingly, relief for
travel on these dates is denied.

v.
Complainant seeks reimbursement for travel on October 9,
1989, to the Dilworth Mine, and then "to Masontown District 4
Office." In the itemization of his request for relief,
Complainant indicates that this travel was " • • • in connection
with the 24-48 hour meeting." However, Complainant did not specifically set forth the subject matter of the 24-48-hour meeting.
Thus, there is no basis to conclude that this meeting was held as
a consequence of Complainant's termination.
As such, relief for
reimbursement for travel to this meeting is denied.
VI.
Complainant further seeks reimbursement for travel on
October 13 and October 30, 1989. In the itemization of the
relief request for travel on these dates, the following is the
only wording set forth after a listing of the destination and
miles traveled:
"Arbitration." It is Complainant's position
that this travel should be allowed as being provided for in

2069

Section 105(c) of the Act, which requires reimbursement for
expenses "in connection with" proceeciings before the Commission.
Complainant further argues that if it were not for h_is being
terminated in violation of the Act, he would not have incurred
expenses pursuing arbitration. There is no evidence that the
issues 9resented for arbitration were in any degree similar to
those presented for resolution by Complainant in his Complaint
before the Commission.l/ I thus conclude that Complainant has
not established that any arbitration proceedings were not
distinct and separate from the instant proceedings, and instead
were related or were in connection thereto.
(See, Secretary of
Labor on behalf O·f Robert A. Ribel v. Eastern Associated Coal
Corporation, 7 FMSHRC 2015 (1985), rev'd on other grounds,
sub nom., Eastern Associated Coal Corp. v. Federal Mine Safety
and Health Review Commission, 813 F.2d 639 (4th Cir. 1987) (An
award of attorney's fees was sought in connection with proceedings initiated by a discharged miner before the State Bureau of
Unemployment Compensation. 'l'he Commission agreed with th.e Trial
Judge that there was no basis for the fee award as " • • • those
State proceedings are separate and distinct from any remedy
available to a miner under the Act."
(Ribel, suora, at 2028)).
VII.
Complainant also seeks reimbursement for Local Union 1980,
United Mine Workers of America, for lost wages of local committeemen in connection with meeting with management over Complainant's
discharge, and preparing, assisting, and testifying in an "arbitration case" and the "MSHA 105(c) hearing." Complainant further
seeks to reimburse District 4, United Mine Workers of America for
costs expended in traveling "to District 4 Office." Also sought
is reimbursement for "arbitrator's compensation," "Ramada Inn
(Meeting Room for the Case)," and for miscellaneous costs.
Essentially, Complainant argues that a broad construction is
to be used in interpreting Section 105(c)(3) of the Act which
provides that, in essence, costs incurred by "representative of
miners" shall be assessed against a discriminating operator. A
plain reading of the language of Section 105(c)(3), supra,
indicates that the c6~ts incurred by a miner or a representative

!I

Inasmuch as the travel for "Arbitration," was subsequent to
the filing of the 105(c) Complaint, it can not be concluded that
the arbitration proceeding was related to the development of
evidence necessary for the instant case.
(c.f., Price v.
Monterey Coal Company, 11 FMSHRC 1099 (1989) TALJ Melick), rev'd
on other grounds, 12 FMSHRC 1505 (1990)).

2070

of miners, which are to be recovered, are those " • • • for, or in
connection with, the institution and prosecution of such
proceedings. • • " Complainant has not set forth in any detail
the issues that were presented for arbitration. As such, I
conclude that it has not been established that any costs incurred
in connection with arbitration were for, or in connection with,
the instant proceeding.
In the same fashion, I conclude that
inasmuch as there is no description of the purpose of the travel
on October 9, 13, and 30, it has not been established that these
costs were incurred for, or in connection with, the instant
proceeding. For the same reason, I make the similar finding with
regard to the miscellaneous items of cost, as well as the cost of
the meeting room at the Ramada Inn.
VIII.
Complainant also submitted costs for Larry Swift, Safety
Committee Chairman Local 1980, for preparation for the instant
hearing, and for "witness MSHA 105(c) hearing." There is no
evidence that Complainant incurred these cost. Further, although
these costs were incurred in connection with the instant hearing,
the Union did not intervene, and Larry Swift did not appear as
representative of Complainant, but merely testified on his behalf.
There is no provision in the Act which would require a
discriminating operator to pay Complainant's witness for his
pre~aration and appearance as a witness.
Accordingly, these
costs are denied.
IX.
The law is well settled with regard to the method of computing attorney's fees.
As set forth in Glenn Munsey v. Smitty
Baker Coal Company Incorporated (5 FMSHRC 2085 (1983) (ALJ Melick)
"the recognized method of computing reasonable attorney's fees
begins by multiplying a reasonable hourly rate by the number of
hours reasonably expended. Hensley v. Eckerhart, 461 U.S. 424,
76 L. Ed. 2d 40, (1983); Copeland v. Marshall, 641 F. 2d 880 (D.C.
Cir. 1980). The resulting figure has been termed the "lodestar".
The lodestar fee may then be adjusted to reflect a variety of other
factors.
Copeland, supra." In this connection, Complainant's
Counsel initially sought a fee of $6,130 predicated upon an itemization oi 61.30 hours at $100 an hour. On October 4, 1990,
Complainant's Counsel filed a statement indicating that he and
Respondent's Counsel agreed to stipulate" . • • that the appropriate hourly rate for attorney's fees should be eighty dollars
($80.00) per hour." I conclude that the lodestar figure herein for
attorney's fees is based on an hourly rate of $80.00 multiplied by
61.30 hours.
I find no basis in the record to either increase or
decrease this lodestar figure.

2071

ORDER
It is ORDERED that:
1.
FINAL.

The Decision in this case issued July 12, 1990, is now

2.
Respondent shall, within 30 days of this Decision, pay
Complainant $9,135.89 with interest computed according to the
Commission's decision in Local Union 2274, UMWA v. Clinchfield
Coal Co., 10 FMSHRC 1493 (1988), aff'd sub
Clinchfield Coal
co. v. FMSHRC 895 F.2d 773 CD.C. Cir., 1990), and calculated in
accordance with the formula in Secretary/Bailey v. Arkansas
Carbona, 5 FMSHRC 2042 (1984).

nom:-

.Avram Weisberger
Administrative Law Judge
Distribution:
Paul H. Girdany, Esq., Healey Whitehill, Law & Finance Building,
5th Floor, Pittsburgh, PA 15219 {Certified Mail)
David J. Laurent, Esq., Polito & Smock, P.C., Four Gateway Center,
Suite 400, Pittsburgh, PA 15222 {Certified Mail)
Walter J. Scheller, III, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241 {Certified
Mail)
dcp

2072

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

OCT 2 51990.
ASARCO I

CONTEST PROCEEDINGS

INC. I

v.

Contestant
:

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

:

Docket No. SE 89-24-RM
Citation No. 3253415; 10/25/88
Docket No. SE 89-25-RM
Citation No. 3253416~ 10/25/88
Docket No. SE 89-26-RM
Citation No. 3253417; 10/25/88
Docket No. SE 89-27-RM
Citation No. 3253418; 10/25/88
Docket No. SE 89-37-RM
Citation No. 3253702; 12/8/88
Docket No. SE 89-38-RM
Citation No. 3253703; 12/8/88
Immel Mine
Mine ID 40-00170

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

CIVIL PENALTY PROCEEDINGS
Docket No. SE 89-60-M
A.C. No. 40-00170-05521

v.
ASARCO I

Docket No. SE 89-75-M
A.C. No. 40-00170-05522

INC. I
Respondent

Docket No. SE 89-105-M
A.C. No. 40-00170-05524
Docket No. SE 89-108-M
A.C. No. 40-00170-05525
Immel Mine
DECISION

2073

Appearances:

Henry Chajet, Esq., Laura E. Beverage, Esq., and
Thad s. Huffman, Esq., Jackson and Kelly,
Washington, D.C., for Contestant/Respondent;
Thomas A. Grooms, Esq., Office of.the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Respondent/Petitioner.

Before:

Judge Fauver

These consolidated proceedings involve ASARCO's contests of
six citations and the Secretary's corresponding petitions for
civil penalties under § 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq. The citations, which
were issued following a fatal mine accident, allege violations of
30 c.F.R. §§ 57.3401, 57.3200 and 56.3202 at ASARCO's Immel Mine.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
and further findings in the Discussion below:
FINDINGS OF FACT
1. ASARCO operates a number of mines, including zinc mines
and associated mill operations in Knox County, Tennessee. In
October, 1988, its Tennessee Mines Division employed about 450
miners. The citations in contest were issued at its Immel Mine
in Tennessee, an underground zinc mine employing about 90 miners
on three shifts. These Findings pertain to the Immel Mine unless
stated otherwise.
2. The zinc ore is removed by the selective open stope
method using conventional mining techniques. This includes
drilling into the ore body, blasting the drilled area, removing
the ore, then loading, hauling and crushing the ore preliminary
to the milling operations.
3. On October 24, 1988, at about 7:25 a.m., George W.
Norton, a jumbo drilLoperator, traveled to the 2C3 stope to
drill blast holes in the heading. He was transported by his
foreman, Carlyle Bales, on Mr. Bales' tractor.
4. As a drill operator, Mr. Norton generally worked alone.
On October 24, 1988, he was visited by Mr. Bales on three
occasions after their initial entry into the heading at 7:25 a.m.
About 7:50 a.m., Mr. Bales made a brief visit to see if
Mr. Norton needed anything. About 10:50 a.m., Mr. Bales spent
20-25 minutes with Mr. Norton while the drill operator ate his
lunch, and about 12:25 p.m., Mr. Bales returned to the heading to
bring "water washers" that Mr. Norton needed for drilling.

2074

5. About 12:10 p.m., Richard Abdella, a haul man, went to
the 2C3 heading to service Mr. Norton's jumbo drill. He also
supplied Mr. Norton with a piece of drill steel that the drill
operator requested.
6. About 1:25 p.m., John Ellis, Jr., General Mine Foreman,
discovered Mr. Norton in the 2C3 heading. Mr. Norton was crushed
under a slab, which had fallen from the mine roof. He had been
standing about 7 feet to the right and rear of the jumbo drill,
outside the protective canopy on the drill, when the slab fell.
He died of the injuries sustained.
7. The 2C3 heading, where Mr. Norton was working when he
was struck by falling rock, was 47 feet wide, at its widest
point, and 17 to 19 feet high. Remnants of three blast holes
from a prior shift remained at the intersection of the roof and
right rib.
The fatal ground 1 failure extended from the right rib
to the drill, a distance of 22.5 feet. Beginning at the right
rib, the rock that fell increased in thickness from a feather
edge to about 2 feet. Near the left side of the fall, drill
holes had been started in the roof. Drill operators often used
the jumbo drill to try to scale the back. In this process, they
would drill in above loose roof material and then lower the drill
boom in an effort to force the loose material down.

a.

9. At the time of the accident, the face had been drilled
from the left to the right. The left pillar contained a vertical
row of holes that were to be used to blast off part of the
pillar. The drill steel was in the last or next to last row of
holes to be drilled in the face. The right drill steel was
broken by the falling rock. The drill steel was 4 feet into the
third hole from the top. The jumbo drill had been shut down and
was not in operation when the fall was discovered. The drill had
a protective canopy over the operator's controls. The canopy was
struck by falling rock. Some of the structural support members
were bent or broken; however, the operator's area was still
protected. If the operator had been under the canopy, it is very
likely that he would have survived the roof fall.
10. Mr. Norton's work area had not been roof-bolted.
Approximately 174 feet outby the drill, the roof had been bolted
with 5-foot long, Swellex bolts on 5-foot centers (normal bolting
pattern). About 50 feet to the left of the left pillars, there
was more bolting. The outby edge of the pillar that was drilled
1 As used by the parties, and in this decision, the terms
"roof," "ground" and "back" are synonymous, except where the
context dictates otherwise.

2075

had loose vertical slabs that needed to be scaled. Other loose
material in the roof needed to be scaled. The pillars showed no
effects of overburden weight nor were the pillars punching the
back or floor. The method of blasting used tended to leave
fractured rock at the top of the pillar and to create dangerous
slabs in the roof. In light of ASARCO's blasting methods, the
roof and ribs required special attention for examination and
testing.
11. The rock that fell on the drill operator had been
exposed to two blasting cycles. The drill operator was in the
process of drilling the face for the third blast. He was not
"back stoping" (i.e. drilling the roof for blasting out the
roof) •
12. A partial list of ground fall accidents 2 from January,
1982, through September, 1988, revealed 10 falls of back, face,
and ribs. Of these, nine were falls ot scaleable material.
These nine accidents occurred as follows:
four while scaling,
two while bolting, two during the process of loading the face
holes, and one when a piece of loose material fell from between
bolts. The tenth ground f~ll accident was in a haulageway, in an
area that had been rehabilitated, and extended above the
anchorage zone of the roof bolts.
13. The ground fall that killed Mr. Norton was a slab
failure. The slab was cantilevered from the left to the right
until the weight of the slab overcame the strength of the rock.
The slab broke loose on the right rib side and the fall extended
to his machine. The slab was probably formed as a result of
fractures caused ~y the blast rounds near the back.
14. The dolomite formation in the Immel Mine was stable and
the mine was not experiencing massive ground failures. The mine
was, however, experiencing a problem with slab formation and
loose back and rib material because of the mining methods used by
ASARCO. The dolomite formation's rock strength probably
contributed to this in that it requires a heavy explosive load to
blast a face round. Shock waves and vibrations from the blasting
and drilling contributed to formation of the fatal slab and its
ultimate failure.
15. Over 90 percent of the reported ground fall accidents
at this mine were the result of inadequate scaling or occurred
during scalipg operations. ·
2 The list is limited to "reportable" ground fall
accidents. These do not include a roof fall accident if (a) the
roof was not supported, (b) no one was injured and (c) mining was
not delayed beyond a certain period.

2076

16. Mr. Vernon Denton, MSHA Supervisory Mine Inspector, and
Mr. William Erickson, Mine Inspector, of MSHA's Lexington Field
Office for the Southeastern District, Metal and Non-Metal
Division, were assigned to investigate the fatality. -They began
their investigation on October 25, 1988. The report of the
results of their investigation was issued on December 9, 1988.
17. Supervisor Denton and Inspector Erickson collaborated
in the investigation, and issued six citations to ASARCO. These
related not only to alleged violations that caused or contributed
to the death of Mr. Norton, but also to other conditions in areas
outside of the 2C3 heading, where the death occurred.
18.

The six citations are:

Number
3253415
3253417
3253702
3253416
3253703
3253418

30 C.F.R. Section
October 25,
October 25,
December 8,
October 25,
December 8,
October ·25,

1988
1988
1988
1988
1988
1988

57.3401
57.3401
57.3200
57.3200
57.3202
57.3202

Citation Nos. 3253415 and 3253417
19. Citation No. 3253415 charges a violation of § 57.3401,
based on the following allegations:
A fatal accident occurred on October 24, 1988, in the
2C3 stope at.this operation as loose rock fell from the
back striking the driller as he stood near the drill.
The work area had not been examined and tested for
loose ground in that an investigation of the site on
October 25, 1988, revealed multiple rock falls or a
single large fall occurred and additional loose
material remained in the back and on the ribs.
Reportedly, the driller did not bring a scaling bar to
the site with him.
20. Citation No. 3253417 charges a violation of § 57.3401,
based on the following allegations:
Two miners were observed arising from being seated
directly below and in .close proximity to high rib loose
ground in the 3C4 stope. They had been sitting on
flattened cardboard boxes at the junction of the floor
and rib. The loose was about fifteen feet above them
and consisted of various sizes over about a ten-foot
wide area. There had been a fatal accident from fall

2077

of loose ground in a similar type stope in this mine
the day·prior to this.
21. The standard cited in these two citations is found at
30 C.F.R. § 57.3401, which it provides in pertinent part:
Persons experienced in examining and testing for loose
ground shall be designated by the mine operator.
Appropriate supervisors or other designated persons
shall examine and, where applicable, test ground
conditions in areas where work is to be performed,
prior to work commencing, after blasting, and as ground
conditions warrant during the work shift. * * *
22. There was no scaling bar at the accident scene;
Mr. Norton did not use a scaling bar to test or scale the roof or
ribs on the date of the accident.
23. Mr. Bales, who was Mr. Norton's supervisor, did not
test or scale the roof or ribs on the date of the accident.
Citation Nos. 3253702 and 3253416
24. Citation No. 3253702 charges a violation of § 57.3200,
based on the following allegations: "A fatal accident occurred
on October 24, 1988, in the 2C3 stope at this operation when
loose rock fell from the back striking the driller. Loose
material had not been taken down or adequately supported before
work was done."
25. Citation No. 3253416 charges a violation of §
based on the following allegations:

57~3200,

Loose ground had not been removed from the ribs and
back in places along the driller's travelway drifts
between 2C3 stope and 2C3 back stope. Reportedly, the
driller travelled this area to obtain his drill rig and
returned through this area to the 2C3 stope prior to
the fatal accident, which happened there on October 24,
1988. Reportedly, the victim did not bring a scaling
bar with him.
26. The standard cited in these two citations, 30 C.F.R.
57.3200, provides, in pertinent part:
"Ground conditions that
create a hazard to persons shall be taken down or supported
before other work or travel is permitted in the affected area."
§

27. The inspectors observed loose rock on the roof and ribs
as they traveled through the 2C3 stope to reach the heading where
Mr. Norton had been killed. Inspector Erickson, who issued
Citation No. 3253416, observed 40 to 50 pieces of loose material
in the roof and ribs along the travelway, each weighing, in his

2078

estimation, from 10 to 100 pounds. These pieces, if they fell,
could cause serious injury or death to miners who traveled along
this route.
Inspector Erickson observed a greater quantity of
loose roof material in this travelway than he had observed in any
other underground mine for a long time. He attributed this
condition to "poor ground control practices" at the Immel Mine
(Tr. 416-41).
28. MSHA Supervisor Denton and Inspector Erickson observed
the same "poor ground control practices" at the heading where
Mr. Norton was killed. Using a series of photographs, which were
taken by the operator shortly after the fatality, Supervisor
Denton identified areas on the roof and rib where loose material
had not been taken down or supported. This material was
detectable and should have been taken down or supported before
the accident.
29.
Billy Owens, Chief of MSHA's Ground Control Dlvision,
went to the Immel Mine on November 2, 1988, at the request of
MSHA's Subdistrict Manager in Knoxville, Tennessee. Mr. Owens
made a thorough study of the ground conditions at the Immel Mine,
particularly at the 2C3 heading where Mr. Norton was killed.
During his examination of the 2C3 heading, he observed loose
slabs on the left and right of the heading. He found that the
slab that killed Mr. Norton should have been detected and taken
down or supported before the accident.
30. In issuing Citation No. 3253702 for a violation of
57.3200, Supervisor Denton also found that the rock that killed
Mr. Norton should have been taken down or supported.
Based on
the investigation he and Inspector Erickson conducted, Supervisor
Denton found that the fatal rock could have been detected by
proper examination and testing and he found this was not done.
§

31. The loose slab that killed Mr. Norton would have been
detectable by using proper examination and testing methods.
It
should have been detected and taken down or supported before the
accident.
Citation Nos. 3253703 and 3253418
32. Citation No. 3253703 charges a violation of § 57.3202,
based on the following allegations:
"A fatal accident occurred
on October 24, 1988, in the 2C3 stope at this operation when
loose rock fell from the back striking the driller. A scaling
bar of sufficient length to place the user out of danger of
falling material was not provided."
33. citation No. 3253418 charges a violation of
based on the following allegations:

2079

§

57.3202,

The common ten-foot long scaling bar provided in many
stope areas of the mine is not of sufficient length to
manually scale loose ground from the fifteen to
eighteen-foot high back and ribs. These bars should be
about fifteen foot or longer to allow removal of high
loose material without exposing the person performing
the work to injury.
34. The standard cited in these two citations is 30 C.F.R.
57.3202, which provides: "Where manual scaling is performed, a
scaling bar shall. be provided. This bar shall be of a length and
design that will allow the removal of loose material without
exposing the person performing the work to injury."
§

35. At the time of the issuance of these two citations the
maximum length of the scaling bar provided to ASARCO's miners was
10 feet.
36. In the 2C3 heading where ~r. Norton was killed the
height of the back was from 17 to 19 feet and could not be
adequately and safely reached by a miner standing on the mine
floor and holding a 10 foot scaling bar. This would also be the
case in other areas of the Immel Mine where the mine height
exceeded the ability of a miner standing on the mine floor with a
10 foot bar to adequately and safely reach the roof.
37. Miners on foot in the 2C3 heading or in any other part
of the Immel Mine where the mining height was above 17 feet had
no adequate means of scaling at their immediate disposal. This
included the foreman, Mr. Bales, who had to travel to a number of
different areas of the mine.
38. The jumbo drill is not adequate as a total means of
scaling in an underground metal and non-metal mine such as
ASARCO's. It can be used to scale certain kinds of loose
material, but a mechanical scaler or a scaling bar used on foot
or from elevated equipment can reach, angle into, and scale down
loose materials that cannot be scaled by a jumbo drill. It is
not a safe practice to rely solely upon a jumbo drill as a means
of scaling loose materials from the roof or ribs.
39. The jumbo drill is not an adequate device for testing a
mine roof.
DISCUSSION WITH FURTHER FINDINGS
Citations Nos. 3253415 and 3253417
These citations allege a violation of 30 C.F.R.
which provides:

2080

§

57.3401,

§

57.3401

Examination of ground conditions.

Persons experienced in examining and testing for
loose ground shall be designated by the mine operator.
Appropriate supervisors or other designated persons
shall examine and, where applicable, test ground
conditions in areas where work is to be performed,
prior to work commencing, after blasting, and as ground
conditions warrant during the work shift. Underground
haulageways and travelways and surface area highwalls
and banks adjoining travelways shall be examined weekly
or more often if changing ground conditions warrant. ·
One of the key issues is the meaning of "where applicable"
as used in this standard. The Secretary contends that it means
"where relevant" in the sense of "in the following cases,"
referring to the four situations specified in the standard.
Under this interpretation, the operator would be required to test
the ground "where work is to ~. e p_erfonned, prior to work
commencing, after blasting, arid as ground conditions warrant
during the work shift."
ASARCO contends that uwhere applicable" means "where
appropriate," in the sense that testing is required "only where
visual examination reveals a ground condition requiring clo.ser
scrutiny" (ASARCO Br. 18) •
If the Secretary's interpretation is correct, there would be
no reason for the phrase "where applicable," since the rule would
simply mean "shall examine and test • • • • " Indeed, the prior
rule did state "e~amine and test" but the qualifier ·"where
applicable" was inserted in the current rule.
The plain meaning of the regulation is that designated
personnel shall examine ground conditions in four situations and,
in those situations, shall also test the ground as necessary or
as ground conditions warrant. The legislative history of the
rule does not indicate that a different meaning was intended. 3
3

The prior rule provided:

"Miners shall examine and test the back, face, and rib of
their working places at the beginning of reach shift and
frequently thereafter. Supervisors shall examine the ground
conditions during daily visits to insure that prior testing and
ground control practices are being followed. Loose ground shall
be taken down or adequately supported before any other work is
done. Ground conditions along haulageways and travelways shall
be examined periodically and scaled or supported as necessary."
30 C.F.R. § 57.3-22 (1984).

2081

The fact that testing is required "where applicable," that
is, as necessary or as ground conditions warrant, does not mean
that it lies within the unlimited discretion of the operator or a
miner to decide when to test. Testing applies when conditions
warrant, and this is a matter of sound practice to protect miners
from roof falls. I credit the following testimony, of MSHA
Supervisor Denton, as a reasonable and enforceable standard for
applying the testing requirement:
[T]he old standard required the testing without any
thought, without any exception. So the exception was
put in to allow these rate instances when it's not
needed.
But in an active area, in an area where you're
continually blasting, developing, driving, or stoping,
you're always changing the -- all of the transient
pressures in the roof, all of the pressures that
resettle every time you take a blast, resettle every
time a bed sags, that move every time you scale off
some rock or advance another shot, that's never the
same. I think testing there is basic and fundamental.
It should be done every time.
[Tr. 97-98.]
fn. 3 (continued)
On March 8, 1984, the Secretary proposed a new rule, to
change the "examine and test" standard to read:
"A person designated by the operator, shall examine, and
test where applicable, ground conditions in active workings prior
to work or travel in these areas and as ground conditions warrant
during the work day. After blasting, a designated person shall
examine ground conditions in areas affected by the blast before
any other work is performed. Designated person shall be
experienced in examining and testing the ground and understand
the nature of the hazards involved." 49 Fed. Reg. 8374.
The current rule was published on October 8, 1986 (51 Fed.
Reg. 36192), with the following explanation in part: "The final
rule requires examination for loose ground in areas where work is
to be performed prior to commencing work, after blasting, and as
ground conditions warrant." Id. at 36195.
The explanations for both the proposed rule and the final
rule do not state or imply that testing is always required
whenever examinations are required.

2082

Under this standard, testing is required after the roof is
disturbed by .blasting, scaling, or mining or when examination of
the roof shows loose material, cracks, or other conditions that
would cause a reasonably prudent operator to check the stability
of the roof by sounding it, in order to discharge his high duty
of care to protect miners from roof falls.
Citation No. 3253415 alleges:
Accident work area had not been examined and
tested for loose ground in that an investigation of the
site on October 25, 1988, revealed multiple rock falls
or a single large fall occurred and additional loose
material remained in the back and on the ribs.
·
Reportedly, the driller did not bring a scaling bar to
the site with him.
I credit the testimony and expert opinions of the
Secretary's witnesses concerning the roof and rib conditions at
the accident site, the failure of the operator to properly
examine and test the roof before the accident, and its failure to
take down or support loose material before the accident.
The roof slab that fell was approximately 22-1/2 feet wide,
35 to 40 feet long, and tapered from a thickness of 2 feet (near
the drill) down to a feathered end less than an inch thick (near
the right rib). It was cantilevered from over the drill and
extended to the right rib. Mr. Norton was killed about 7 feet to
the right and rear of the drill. Had the roof to the right of
the drill been tested with a scaling (or sounding) bar, the
reliable evidence shows that it would have sounded drununy
(hollow), showing the need to take down the drununy area or
support it. There was no scaling bar at the accident scene
because Mr. Norton and Mr. Bales did not test the roof with a
scaling or sounding bar on the day of the accident.
The "belly" in the roof that miners had tried to take down
about a week before the accident was part of the slab that fell
in the fatal accident. The belly was a sign of trouble with the
roof, and ample reason for testing the roof before Mr. Norton
worked under it. Also, attempts to take down roof material can
further weaken the roof, so that if the material cannot be taken
down it should be supported or dangered off. This was not done.
Had Mr. Norton or Mr. Bales properly examined the roof
before the accident, they would have seen the belly; they also
would have seen the loose materials later observed by Mr. Denton,
Mr. Owens and other witnesses who testified for the Secretary.
The requirement in § 57.3401, to "examine" the roof "in
areas where work is to be performed, prior to work commencing,

2083

after blasting, and as ground conditions warrant" is not an empty
provision that can be satisfied simply by looking up at the roof.
The provision requires that "Persons experienced in examining and
testing for loose ground shall be designated by the miner
operator" for examining and testing. This means a careful
examination by an experienced person. While "examination" may be
visual only, it means careful, informed observations with
appropriate accountability. Where loose materials in a roof are
present and left uncorrected Ci·~· not taken down, supported or
dangered off), where miners work or travel, there is a
prima facie indication that the roof was not properly examined
within the meaning of § 57.3401. I find that on Mr. Norton's
shift the roof was not properly examined before the accident.
This constituted a violation of § 57.3401.
I also find that the roof was not tested as required by
57.3401. The loose material in the roof and ribs obse:cYed by
the Secretary's witnesses as well,as the blasting-muckingdrilling cycle created a duty to test the roof before the
accident. But the roof was not tested. Mr. Bales was at the
site several times before the accident, and he did not test the
roof. Mr. Norton did not have a scaling or sounding bar with him
and therefore could not have tested the roof.
§

I reject ASARCO's contention that using the jumbo drill to
"rattle the back" is a competent alternative method of testing a
mine roof within the meaning of § 75.3401. I fully credit the
testimony of the Secretary's expert witnesses, including
Mr. Owens, Mr. Goff, and Mr. Denton, on this point, and hold that
the jumbo drill is not an adequate device for testing a mine
roof.
Billy D. Owens, Chief of MSHA's Ground Support Division,
testified that the jumbo drill is not an adequate device for
testing or sounding the roof. Tr. 675. His testimony is most
instructive in pointing out that miners can mislead themselves
(or be misled) into believing that by using the jumbo drill to
test the roof they can tell good roof from bad roof (Tr.
675-677):
Q. Mr. Owens, you heard the testimony of the
miners who • • • who testified previously in relation
to using the jumbo drill to test with. Can you use the
jumbo drill to test the ground or the back?

A. No, the jumbo drill is not an adequate devise
for testing or sounding the back. In my experience
with drillers -- rock drillers, roof drillers -- these
are very proud people. They have a lot of confidence
in their abilities, and they think they can do -- that
-- that they can do almost anything with their drill.
They know their equipment real well. Like I say,

2084

they're extremely proud. I've been told that they can
tell -- they can sound the roof with the drills. They
can drill the roof, determine voids in the roof. They
can tell when the roof is hitting partings or weak
material in the roof -~ going through different beds.

Q. When you say you've been told, have you talked
to other drillers in the past
A.

Yes.

Yes, I have.

Q. -- during the course of your investigations or
evaluations?
A. Numerous times in -- in a lot of the
investigations, we use a fiber optic fluoroscope which
is a devise -- we have a nine foot and fifteen foot -fluoroscope which runs a light through a fiber optic
cable so that we can actually look up into a drill hole
in the roof.

Q. Have you had occasion to try to verify whether
or not the drill operator was accurate in his -A.

Yes.

Q.

-- of the drill to test?

A. We've had places where people have told us
that the roof is sound, no problems; it's in excellent
shape. Then we've fluoroscoped the hole, and, about
18 inches up in the roof, we've found half-inch
separations. The drillers have gone through small clay
partings which they didn't pick up which could be of
potential danger. It's -- once a clay parting gets wet
or is -- it becomes lubricated, and it's usually a
place where roof separation will occur. However, these
drillers who have numerous years of experience have
told us • • • with the utmost confidence that there's
no problems with the roof -- no separations. It's
solid and it's sound.

*

*

*

*

*

*

*

Q.
[U]nder current technology, what do you
consider . . • the most efficient means of testing the
the back of the roof?
A.
It's still using a -- the best method is still
to use a steel rod to .test the roof. The -- what is
called a sound in the roof. Infrared has been tried to
be used with the theory that a slab would be colder

2085

than the rest of the area because air gets in behind
the slab, but that technology hasn't proven out yet.
so far, it's still the physical touch of the man
striking the roof with a steel object.

Q.
[W]hat's the difference in the -- in the
result of test -- striking the roof with the -- with
the ground bar or the metal bar? • • . [H]ow do you
compare the two results? [Using a jumbo drill or a
sounding bar.]
A. The
striking it, you get a different sound,
plus the guy has the actual feel.
It's been mentioned here that the people can tell
that -- they can tell a roof by striking the -- the
sound -- there's a different sound between hitting a-dry wall with a two by four behind it and a dry wall
with the two by four not behind it. All they're going
by is sound.
When a person is going with a -- holding a -- a
piece of metal rod hitting the back with it, not only
do you get the sound, but there's a vibration
difference. The same way when you hit a dry wall with
the two by four behind it, it feels solid. When you
hit the dry wall without the two by four behind it,
there's a different feel to that dry wall and the same
way with the rock in the back. The loose rock will -will be drummy. It will have a little give. The -you have a sound and a feel that is different than
hitting solid rock.

Q. And you heard the testimony of these miners
• and the testimony of Mr. Denton in relation to
• the sound levels of the jumbo drill . • . and its
use or non use for sounding the roof. What's your
opinion about whether or not there is a sound or noise
level -- difficulty with the drill?
A. The sounding with a jumbo drill, if two sound
level[s] -- if two sources are emitting sound, the
higher decibel level of sound will mask the second
sound. It's called masking. In masking when the
second sound is masked, • . • not only is it hard to
tell exactly what the sound is, it is also difficult to
tell direction and orientation of the sound or • . •
the source of the lower decibel sound. The drill rigs
put out a higher decibel level than striking the back;
therefore, the decibel levels put out by the drill
would mask the sound coming from • • • striking the
back which would make it difficult to tell whether it

2086

was solid back, [or] bad back. It would also make it
difficult to get the orientation of the signal.
Similarly, Mr. Goff, a noise expert with extensive
experience, testified that the noise of the jumbo drill
overshadows the information miners would need to test the roof
and therefore the jumbo drill is not an adequate device to test
the roof.
I hold that, before the accident, ASARCO violated § 57.3401
by failing to test the roof at the accident site on October 24,
1988.

I find that it was highly negligent of ASARCO to permit and
encourage its drillers to try use the jumbo drill instead of a
sounding bar to test the roof. Mr. Norton was an experienced
miner who lost his life because he and his supervisor did not
detect a loose overhead slab that could have been detected by
proper testing.
Following ASARCO's faulty practice, they took
that risk without using the best known, safest, and commonly
accepted tool for detecting a loose roof -- a sounding bar.
The gravity of ASARCO's violation of§ 57.3401, i.g., its
failure to properly examine and test the ground above Mr. Norton,
was very high and plainly contributed to his death. The gravity
is even higher in light of the fact that there was a "lag" in
ASARCO's roof bolting and it had not roof bolted the area where
Mr. Norton was killed. It ·is not being considered or decided
here whether the failure to roof bolt was itself a violation of a
separate regulation, because ASARCO is not charged with such a
violation. However, the "lag" in the progress of roof bolting,
which was known to the operator, is a factor in considering the
gravity of ASARCO's failure to properly examine and test the
ground at the accident site, because the failure to roof bo14
Mr. Norton's work area increased the danger of a roof fall.

4 Thus, in addition to finding that the rock that killed
Mr. Norton was a detectable slab that should have been taken down
or supported, Mr. Owens also testified in relation to the 47 foot
width of this heading:
"[I]n dolomite and limestone, we have found that the best
mining widths appear to be 35 to 40 feet.
That -- for selfsupporting -- for supporting without bolts. Then in the greater
widths than 35 to 40 feet, there's no way it can be supported and
typically no way it can be supported without bolts, so mining
widths in these types of formation of greater than 40 feet tend
to develop ground stability problems."
[Tr. 661-662].

2087

fn. 4 (continued)
Based upon his observations of the accident site·and the
testimony of many witnesses who testified at the hearing in
regard to the adverse ground conditions in the Immel Mine in
general and in the 2C3 stope in particular, Mr. Owens testified
that he believed that the heading where Mr. Norton was killed
should have been bolted. He stated that:
"There's been quite a
bit of testimony about people trying to pull loose down in that
area, trying to bring down bellies, concern about the ground.
In
those kind of situations, that area should have been bolted."
Tr. 703-704.
I credit Mr. Owens' expert opinion that, if the 2C3 heading
had been roof bolted to within 14 feet of the face, according to
the general recommendation in his report, the roof would have
held and Mr. Norton would not have been killed.
Mr. Owens also testified that one of ASARCO's officials told
him, at the time of his visit to the mine on November 2, 1988,
that there had been a lag' time in the bolting in the 2C3 stope,
"that the area was intended to be bolted, however, there was a
lag in their bolting -- getting the bolting up there." Tr. 664
and 725.
MSHA Inspector Charles McDaniel, who was the first MSHA
Inspector to visit the Immel Mine after the fatal ground fall in
the 2C3 heading, gave his opinion that this heading was too wide
and should have been bolted and that bolting would have held the
slab that fell and killed Mr. Norton. Tr. 1355-1356 and
136g.
Inspector McDaniel also testified that the Immel Mine had a
history of ground stability problems.
Mr. Richard Hubbard, a roof bolter, testified that the
ground conditions in the 2C3 stope were bad and required that the
stope be roof bolted as it advanced. Tr. 259-260, 275.
Mr. Hubbard stated that in July or August, 1988, he had been
sent into the 2C3 stope to roof bolt by Mr. Guy Bales, his
foreman.
The area where he was working at the time was about
90-100 feet from the point in the stope where Mr. Norton was
killed. He stated that after he had completed drilling five
holes, Jim Jacques, the Mine Superintendent, directed him to stop
because, according to Mr. Jacques, the area was going to be back
stoped. Mr. Hubbard told Mr. Jacques that in order to make the
area secure roof bolts were needed, then Mr. Jacques allowed him
to continue. He was not able to complete his bolting, however,
because the equipment he needed to do the bolting was taken away,

2088

fn. 4 (continued)
and he went on vacation shortly thereafter~ He stated that the
next time he was in the 2C3 stope was when Mr. Norton's body was
removed, and he saw the five, still unfilled, holes for roof
bolts that he had drilled in July or August. Tr. 266 and
268-273.
Mr. William Ellis is a machine man at the Immel Mine. At
the time of Mr. Norton's death, he was in training with
Mr. Richard "Tominy" Frazier, drilling with the jumbo drill. They
worked in the 2C3 stope about 1 week before the accident, in an
area 10 to 20 feet from where the fatal ground fall occurred. He
described the ground at the Immel Mine as "· • • bad about
falling out. You have to bolt it a lot. 11 Mr. Ellis stated that
he and Mr. Frazier thought that this area needed bolting, but
that they worked in it anyway. Tr. 315-320.
-Mr. Ellis testified that the heading in the 2C3 stope where
he had worked approximately 1 week before the fatal ground fall
was too wide and needed to be bolted. Tr. 329.
Mr. Ellis stated that he and Mr. Frazier had attempted to
drill down a "belly" in the ground a week before but were unable
to get it down. He stated that he believed that this may have
been the rock that killed Mr. Norton. Tr. 318 and 333-334.
Mr. Richard "Tommy" Frazier worked for ASARCO and its
predecessor for 26 years until September, 1989. He worked at the
Immel Mine from 1972 until his resignation.
In October, 1988,
Mr. Frazier was the jumbo drill operator on the second shift,
using the same jumbo drill that Mr. Norton was using on the first
shift when he was killed. Tr. 539-541.
Mr. Frazier testified that the ground conditions in the 2C3
stope were bad, and that roof bolts were needed. Tr. 550-551.
It was Mr. Frazier's opinion that the 2C3 heading was too wide.
Tr. 544.
Mr. Frazier stated that the "belly" which he and Mr. Ellis
tried to pull down about 1 week before Mr. Norton's death was
within 10 to 15 feet of the spot where Mr. Norton was killed. He
stated that he had tried unsuccessfully to drill the belly down,
spending about 45 minutes to 1 hour in the attempt. Mr. Frazier
thought that this belly may have been the rock, or at least part

2089

Citation No. 3253417
This citation alleges:
Two miners were observed arising from being seated
directly below and in close proximity to high rib loose
ground in the 3C4 stope. They had been sitting on
flattened cardboard boxes at the junction of the floor
and rib. The loose was about fifteen feet above them
and consisted of various sizes over abut a ten-foot
wide area.
There had been a fatal accident from fall of loose
ground from similar type stope in this mine the day
prior to this.

fn. 4 (continued)
of the rock, that fell from the roof and struck Mr. Norton. Tr.
543-545, 552, 585, 593-594 and R-16 (Erickson's Sketch Enlarged).
Inspector McDaniel testified that, based on his observation
of the heading, he believed that the rock that fell was a
"belly." Tr. 1341.
Hobart Tucker is a loader operator at the Immel Mine and had
worked removing muck from the 2C3 heading on the 11:00 p.m. to
7:00 a.m. shift (Friday night-Saturday morning) prior to Monday,
October 24, 1988, the date of Mr. Norton's death. He had been in
the 2C3 stope about 50 times before the fatality. He stated that
the 2C3 stope needed to be bolted:
"I feel that the ground needs to be bolted in that
particular area. I mean as a general rule, because anywhere's
trouble, you know, with some ground you need to keep it bolted.
Of course, I think the ground ought to be bolted for the simple
fact of support. I think it helps the ground a lot to stay safe,
as a general rule, over periods of time."
(Tr. 377-380].
James Jacques, Immel Mine's Superintendent, testified in his
deposition that 75 percent of the 2C3 stope had been bolted
before Mr. Norton's death (G-40 [Jacques' Deposition] at 56-58).
John Ellis, Jr., Immel General Mine Foreman, testified in
his deposition that it was Immel's practice to bolt all of the
headings (G-42 at 11-12).

2090

The undisputed evidence sustains this citation. The
inspectors gave their expert opinions that the loose material
they observed above the two sitting miners was hazardous and
obvious. ASARCO did not produce either of the miners to dispute
this, although their names were known to management. -The fact that the miners were sitting beneath loose,
hazardous materials is a prima facie indication that the rib had
not been properly examined under § 57.3401. Had it been properly
examined, it would have been taken down, supported, or dangered
off.
Considering that this violation occurred the day after a
fatal ground fall accident, the facts indicate high negligence in
ASARCO's failure to examine the ground before this violation and
to properly train miners not to sit under a roof or rib without
properly examining overhead conditions.
citation Nos. 3253702 and 3253416
These citations alleg~ violations of 30 C.F.R.
which provides:

§

57.3200,

Ground conditions that create a hazard to persons
shall be taken down or supported before other work or
travel is permitted in the affected area. Until
corrective work is completed, the area shall be posted
with a warning against entry and, when left unattended,
a barrier shall be installed to impede unauthorized
entry.
Citation No. 3253702 alleges that: "A fatal accident
occurred on October 24, 1988, in the 2C3 stope at this operation
when loose rock fell from the back striking the driller. Loose
material had not been taken down or adequately supported before
work was done."
I credit the testimony and expert opinions of the
Secretary's witnesses that the slab that killed Mr. Norton was
hazardous, detectable, and should have been taken down, supported,
or dangered off before the accident. Discussion of this evidence
is included under Citation No. 3253415, above, and is
incorporated here.
I find that ASARCO was highly negligent in failing to take
the necessary precautions to protect Mr. Norton from the danger
of a roof fall in his work area. ASARCO's negligence includes
the negligence of Mr. Norton and his supervisor, Mr. Bales.
Citation No. 3253416 is based upon the inspector's
observations of loose material in the roof and ribs of the
travelway between the 2C3 stope and the 2C3 back stope.

2091

Inspector Erickson observed 40 to 50 pieces of loose material in
the roof and ribs along the travelway, each weighing, in his
estimation, from 10 to 100 pounds. These pieces, if they fell,
could cause serious injury or death to miners who traveled along
this route. Inspector Erickson observed a greater quantity of
loose material in this travelway than he had observed at any
other underground mining operation for a long time. He
attributed the poor conditions of roof and ribs to "poor ground
control practices" at the Immel Mine.
The inspectors observed the same "poor ground control
practices" in or near the heading where Mr. Norton was killed.
The evidence fully supports this citation. The roof
conditions were hazardous and obvious. I find that ASARCO was
highly negligent in failing to correct them.
ASARCO contends that the citation fails to give adequate
notice of the locations of the loose material in the roof and
ribs. However, the inspectors pointed out these locations to the
management representatives who were with them at the time the
inspectors observed the loose material. This fact and the
wording of the citation constitute adequate notice and
specificity of the charge.
Citations Nos. 3253703 and 3253418
These citations allege a violation of 30 C.F.R. § 57.3202,
which provides: "Where manual scaling is performed, a scaling
bar shall be provided. This bar shall be of a length and design
that will allow the removal of loose material without exposing
the person performing the work to injury."
Citation No. 3253703 alleges that a "scaling bar of
sufficient length to place the user out of danger of falling
material was not provided" ·at the accident site where Mr. Norton
was killed. ASARCO contends that § 57.3202 does not apply
because "Norton was not manually scaling, but rather was scaling
with a jumbo drill." . ASARCO Br. 29.
It is clear that Mr. Norton was not engaged in manual
scaling, because he did not take a scaling bar to his work site.
If he d~d any scaling at all, he probably tried to use the jumbo
drill.
Although the jumbo drill can be used to scale certain
5 Some witnesses for ASARCO testified that the jumbo drill
had been used for a long time to scale ground at the Immel Mine.
However, the operator's Safety Rules Booklet makes no mention of
the use of the jumbo drill to scale. It refers only to the use
of a scaling bar. In pertinent part, it provides:

2092

kinds of loose material, it is not designed as a scaler; a
mechanical scaler or a scaling bar used on foot or on elevated
equipment can reach, angle into, and take down loose material
that cannot be taken down by a jumbo drill. Thus, it is not a
safe practice for an operator to rely solely on the jumbo drill
for scaling -- because loose material could be missed.
Nonetheless, since Mr. Norton was not engaged in manual scaling
on the day of the accident, § 57.3202 did not apply. Citation
No. 3253703 will be vacated.
Citation No. 3253418 alleges that:
The common ten-foot long scaling bar provided in
many stope areas of the mine is not of sufficient
length to manually scale loose ground from the fifteen
to eighteen-foot high back and ribs. These bars should
be about fifteen foot or longer to allow removal of
high loose material without exposing the person
performing the work to injury.
The cited standard does not require that scaling bars be of
any particular length. Indeed, standard practice shows that if a
bar is too short to reach the roof or ribs safely and
effectively, the bar may be used in conjunction with lift
equipment. Accordingly, this citation will be vacated.
Multiple Violations
ASARCO contends that certain citations are duplicative,
resting on the same factual allegations. However, discrete
violations are alleged which are not duplicative. Citation
fn. 5 (continued)
MINING DEPARTMENT

*

*

*

*

*

*

*

6.

It is the responsibility of every worker to scale
down all loose ground that he finds.
If for any
reason this is not possible, he must notify his
foreman.

7.

Be sure you use a proper length bar which is sharp
and has bit (sic) on only one end. Bars when not
in use must be stored in a safe location out of
vehicle traffic.

8.

Barring down must be done from a safe location.
Footing shall be secure.

2093

No. 3253415 rests upon a failure to properly examine and to test
the ground before Mr. Norton was killed, a violation of
§ 57.3401•
Citation No. 3253702 rests upon a failure to take
down. support. or danger off hazardous, loose material before
Mr. Norton was killed, a separate violation of § 57.3200.
Citation Nos. 3253703 and 3253418, which involve the length of
scaling bars, are being vacated, and need not be considered under
the issue of duplicative charges.
CONCLUSIONS OF LAW
1.

The judge has jurisdiction in these proceedings.

2. ASARCO violated the safety standards as alleged in the
following citations:

§

Citation

30 C.F.R. Section

3253415
3243417
3253702
3253416

57.3401
57.3401
57.3200
57.3200

3. The Secretary failed to prove a violation of 30 C.F.R.
57.3202 as alleged in Citation Nos. 3253418 and 3253703.
Civil Penalties

Considering each of the criteria for a civil penalty in
llO(i) of the Act, I find that the following civil penalties
are appropriate for the violations found herein:
§

Citation

Civil Penalty

3253415
3243417
3253702
3253416

$6,000
$ -200
$6,000
$ 200
ORDER

WHEREFORE, IT IS ORDERED THAT:
1.

Citation No. 3253415 is AFFIRMED.

2.

Citation No. 3253417 is AFFIRMED.

3.

Citation No. 3253702 is AFFIRMED.

4.

Citation No. 3253"\16 is AFFIRMED.

5.

Citation No. 3253703 is VACATED.

2094

6.

Citation No. 3253.418 is VACATED.

7. The motions for partial summary judgment and dismissal
are DENIED in light of the above disposition of all citations.
Material issues of fact warranted a consideration of the evidence
from both parties before deciding the issues raised.
8. ASARCO shall pay the above assessed civil penalties of
$12,400 within 30 days of the date of this decision.

~~VeAWilliam ~J~er

Administrative Law Judge

Distribution:
Henry Chajet, Esq., Laura E. Beverage, Esq., and Thad s. Huffman,
Esq., Jackson and Kelly, 1701 Pennsylvania Avenue, N.W.,
Suite 650, Washington, DC 20006 (Certified Mail)
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, suite B-201, Nashville, TN
37215 (Certified Mail)
/fb

2095

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

OCT 2 51990
WARREN ROSE,

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEST 90-142-DM
WE-MD 90-04

v.

Crestline Pit

CUNNINGHAM SAND & GRAVEL,
Respondent
DECISION
Appearances:

Michael D. Kinkley, Esq., Spokane, Washington,
for Complainant;
Thomas W. McLane, Esq., PAINE, HAMBLEN, COFFIN,
BROOKE & MILLER, Spokane, Washington,
for Respondent.

Before:

Judge Lasher

This matter was initiated by the filing of a complaint by
Warren Rose on March 16, 1990, pursuant to Section 105(c)(3) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801,
et ~ (herein "the Act").
Following completion of formal hearing in this matter in
August 1990, the parties reached an amicable resolution of the
matter reflected in a "Release in Full" duly executed by the
individual Complainant and his wife and respondent. A copy of
this agreement is contained in the Commission's case file,
clearly showing the parties' intent to terminate the litigation
of this matter, and calling for dismissal of this proceeding with
prejudice, without cos-ts or attorneys' fees to either party.
Accordingly, this matter, having been voluntarily resolved
by the parties in a reasonable and proper manner, their agreement
is APPROVED and this proceeding is DISMISSED WITH PREJUDICE.

"
.A
0;t'~~/
~ ~Afi--

/''fchae1 A. Lasher, Jr.
Administrative Law Judge

2096

Distribution:
Mr. Warren Rose, 2420 Heine Road, Chewelah, WA 99109
(Certified Mail)
Mr. Kevin Bredesen, Personnel Manager, ACME MATERIALS & CONSTRUCTION COMPANy, P.O. Box 2530, Spokane, WA 99220 (Certified
Mail)
Michael D. Kinkley, Esq., Northtown Office Building, Suite 701,
N. 4407 Division, Spokane, WA 99207 (Certified Mail)

/ek

2097

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

OCT 2 61990
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 90-137
A. C. No. 15-02502-03565
Docket No. KENT 90-142
A. C. No. 15-02502-03566

SHAMROCK COAL COMPANY, INC.,
Res i?Ondent

Shamrock No. 18 Series
DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
u. s. Department of Laoor, Nashville, Tennessee,
for the Secretary;
Neville Smith, Esq., Smith & Smith, Manchester,
Kentucky, for the Respondent.

Before:

Judge Weisberger

Statement of the Case
These consolidated Civil Penalty Proceedings are before me
based upon Petitions for Assessment of Civil Penalty filed by the
Secretary (Petitioner), alleging violations of various mandatory
safety standards set forth in Volume 30 of the Code of Federal
Regulations.
The Operator (Respondent) filed Answers in these
proceedings, and pursuant to notice, the cases were heard in
Richmond, Kentucky, on August 16, 1990.
(Docket No. KENT 90-136,
which had previously consolidated with the cases involved in this
proceeding, was severed based upon an oral Motion made by
Petitioner and not opposed by Respondent.)
At the hearing,
James A. Delp testified for Petitioner and Gordon Couch testified
for Respondent.
Stipulations
The following stipulations were agreed to by both Parties:
1. That the proposed penalty would not affect the Operator's
ability to continue in business and would be appropriate to the
size of the business.

2098

2. That, where appropriate to the nature of the citation,
the Operator. demonstrated good faith in attempting to achieve
rapid compliance after being ..n.ottf ied of the alleged_ violations.
3. The Operator's history of prior violations is shown in
Government's Exhibit 1 (Gx 1).
Docket No. KENT 90-137
Citation No. 3206452
On January 10, 1990, James Delp, an inspector employed by
the Mine Safety and Health Administration, issued Citation
No. 3206452 alleging a violation of 30 C.F.R. § 75.403, in that
sampling, taken at the various locations of the No. 1 Return
Entry of the 006 Section of Respondent's Shamrock No. 18 Mine,
revealed that rock dust samples had incombustible contents less
than 80 percent.
Respondent did not adduce any evidence-to rebut
or impeach the figures set forth in the Dust Sampling Lab Report,
which revealed that in 31 of the the 38 samples taken in the
No. 1 Return Entry, the incombustible content of the roc1c dust
was less than 80 percent.
30 C.F.R. § 75.403, in essence,
mandates that the rock dust in the area in question have an
incombustible content of not less than 80 percent. Accordingly,
I find that the Respondent herein did violate Section 75.403,
supra.
According to the uncontradicted testimony of Delp, the purpose of rock coal dust is to hold down combustible materials,
such as coal dust, which he indicated to be highly flammable and
explosive.
He indicated that if the rock dust does not have the
appropriate level of incombustible material, there could be an
ignition.
~ccording to Delp, if there would be a methane ignition
at the face with enough pressure to raise the coal dust and place
it in suspension, there would be an explosion. However, he indicated, on cross-examination, that the area in question does not
produce a great amount of methane.
He also indicated that there
were various items of equipment at the face, such as a continuous
miner, two shuttle cars~ a roof bolting machine, and a scoop, all
of which are potential sources of an electrical spark. The record
do:s not contain evidence of any deficiency of any of the equipment
present at the face, which would have rendered it reasonably likely
for a spark to have occurred. Also Delp indicated that the mine in
question does not liberate a great amount of methane. Thus,
although the violation herein could have contributed to the hazard
of the propagation of an explosion, I find that the evidence fails
to establish that there was any reasonable likelihood of a ignition.
~ccordingly, I find that the violation herein was not significant
and substantial.
(See, Mathies Coal Co., (FMSHRC 1, 3-4 (1984)).

2099

Inasmuch as the lack of the appropriate incombustible content
of the rock dust can lead to the propagation of an explosion, I
find that the· violation herein was of a moderately high level of
gravity.
Petitioner has not adduced any evidence to base a
decision that Respondent either knew or reasonably should have
known that the rock dust in question did not have the appropriate
level of incombustible material. Accordingly, I find that the
Respondent did not act with more than low negligence in connection
with the violation herein. Taking into account the remaining
statutory factors of 110(1) of the Act, as stipulated to by the
Parties, I conclude that a penalty herein of $300 is appropriate.
Citation No. 3206454
On January 10, 1990, Delp found that the deluge water spray
system for the 009 Section head drive was inoperative, as the
water line was not connected.
Respondent did not contradict or
otherwise impeach this testimony.
I therefore find thatRespondent herein violated 30 C.F.R. § 75.1101-l(a) as alleged.
Delp indicated that if the deluge water system, designed to
dump large qualities of water on the head drive, is not operative
due to the fact that it was not connected to the water source,
there is a hazard of a fire at the belt not being suppressed
resulting in smoke and noxious gasses. He indicated that there
were various materials which could potentially burn, such as
several gallons of oil in metal containers, and various timbers
and wooden cribs. However, he did not indicate the distance of
these materials to the head drive, and it is noted that the oil
was contained in metal containers. Also, although he indicated
that the area is known as one that accumulates float coal dust,
and that the belt was in operation and carrying coal, he was
unable to say whether he observed coal dust on the belt, and did
not specifically indicate that there was any coal dust around the
head drive.
Further, although he noted that there was a potential of fire due to friction of rollers and various components,
as well as sparks from various electrical equipment at the head
drive, there was no evidence adduced as to a specific condition
of the various equipme.nt which would make the hazard of an
ignition reasonably likely to have occurred.
I thus conclude
that it has not been established that the violation herein was
significant and substantial.
{See, Mathies, supra).
Inasmuch as the violation herein could have resulted in the
propagation of a fire, producing intense smoke and noxious
gasses, and the same could have been carried by the belt to other
areas, I conclude that the violation herein was of a moderate
high level of gravity.

2100

Delp was asked as to whether it was obvious that the water
supply had not been hooked up to the system. He indicated that
it was obvious to him. Further, he said that Respondent's
foreman, Heatch Begley Jr., who was with him at the time did not
explain why the water was not hooked up, and in general did not
make any comment.
I find that Petitioner has not adduced
sufficient facts as to the degree of Respondent's negligence.
There is no evidence as to how long the condition had existed
prior to Delp's inspection. Further, although Delp indicated
that the condition was obvious to him, there were no specific
facts adduced as to either a description of the site where the
water had been disconnected or its specific location. Nor was
any evidence presented as to a specific description of its
visibility. Hence, I conclude that it has not been established
that the Respondent herein operated with more than a low degree
of negligence in connection with the violation herein.
I
conclude that a penalty of $100 is appropriate.
Citation No. 3206457
On January 23, 1990, Delp indicated that while in the intake
entry, he observed a hole approximately 3 by 3 feet in an overcast that ran through and perpendicular to the intake entry. The
overcast had been constructed of concrete blocKs. The hole that
Delp observed still contained parts of concrete blocks, but had
been covered by a plastic lined brattice Cbrattice cloth). Delp
issued Citation No. 3206457 essentially alleging that Respondent
had not followed its ventilation plan, " • • . which requires
overcast to be constructed oi 4" x 8 11 x 16" concrete block and
pilaster . • . • " (sic).
According to Delp the overcast was constructed, essentially,
to prevent the air in the belt from mixing with intaKe air. He
indicated that the belt line in the overcast goes to the face and
contains various gasses and dust. He indicated that in the event
of a fire, the brattice cloth could have melted, allowing the
contaminants in the belt line to enter the intake entry, which
serves as the escapeway. Essentially it was Delp's testimony
that as the intake air passes under the overcast, it would create
suction which would result in the intake air being the path of
least resistance. Accordingly, air from the belt drive
containing various gasses would enter the intake air.
I do not place much weight on this theory as Delp did not
explain how such suction is created. Further, he indicated that
as a general proposition air takes a path from high pressure to
low pressure.
In this connection he noted that the intaKe entry
is under more pressure than the air in the belt line in the
ovarcast.
Accordingly it does not appear likely that air from
the overcast would enter the intake return.

2101

Further, the sole basis for the violation cited in the
Citation is the assertion that the use of brattice cloth to cover
a hole in an overcast violates the ventilation plan. As pertinent, Respondent's violation plan, with regard to materials and
methods used to construct overcasts, provides as follows:
"4" x 8" x 16" concrete block and pilaster, a noncomoustible
material may be used in some conditions."
(Emphasis added).
(Government Exhibit 5, -page 3).
"Combustible" is defined in
Webster's Third New International Dictionary (1986 ed.)
("Webster's") as follows:
"l: capable of undergoing combustion
or burning - used esp. of materials that catch fire and burn when
subjected to fir~~" "Combustion" is defined in "Webster's" as "l:
a process or instance of burning: . • • • " "Burning" is defined
in "Webster's" as "l a: a consuming or being consumed by a fire
or heat."
Thus, Petitioner, in order to prevail, must establish that
the bra~tice cloth in question was not incapable of burning. For
the reasons that follow, I find that Petitioner has failed to
meet this burden. Delp, who has been with MSHA only since
January 1989, but has 15 years experience as a miner, including
ap9roximately 12 years as a section foreman, testified on direct
examination that "I believe it will burn" (Tr. 70). However, on
cross-examination he was asked whether the material in question
was not combustible and he answered as follows:
"I don't know if
it was combustible, but I do know that it would melt" (Tr. 102).
In addition, he agreed it was "· . . approved flame-resistant
material" (Tr. 102). Gordon Couch, who has been Respondent's
safety director for 15 years, and previously involved as a mine
inspector for the Department of Interior for 8 years, and served
as coal mine inspection supervisor for 2 years, testified with
regard to the nature of the material in question as follows:
" • • • it is not combustible.
It is deemed flame-resistant by
the tests conducted by the Bureau of Mines" (Tr. 112). Further,
Couch indicated that it is routine to remove blocks and
temporarily cover the resulting openings with the material
identified by Delp's testimony. Couch's testimony, in these
regards, was not impeached or rebutted by Petitioner.
Accordingly, I find tb_at the record fails to establish that the
brattice cloth in question is not "non-combustible." Thus, it
has not been proven.that the usage of the brattice cloth herein
violated the ventilation plan. However, Citation No. 3206457 is
to be dismissed.

2102

Docket No. KENT 90-142
Citation No. 3206323
Delp indicated that on January 23, 1990, Respondent's foreman, a Mr. Asher, opened the water valve on Respondent's sprinkler
system. Delp indicated that this is the manner that he usually
tests the sprinkler system, at Respondent's mine.
He indicated
that the belt did not stop and neither a visual nor an auditory
alarm was emitted. He issued a Citation alleging a violation of
30 C.F.R. § 75.1101-10, which provides, as pertinent, that each
water sprinkler system shall be equipped with a device to stop the
belt in the event of a rise in temperature, and the device
11
•••
shall be capable of giving both an audible and visual
warning when a fire occurs."
Respondent did not rebut the testimony of Delp that when the
system was tested it did not stop the belt drive, nor d1d it emit
an audible or visual warning.
Nor did Respondent adduce
testimony from any witness which tend to establish that the
method of testing used by Delp was not the proper or usual one.
Accordingly, I find Respondent herein did violate
Section 75.1101-10, supra, as alleged.
Delp indicated that the hazards of a fire are the same as
those he described in his testimony with regard to Citation
No. 3206454, which involved the deluge system. Also, on the same
date, concerning the same belt, he issued Citation No. 3206321
alleging that there were no fire hose outlets for a distance of
approximately 900 feet along the belt.
In addition, he issued
Citation No. 3206322 alleging that there was coal dust a quarter
inch to 20 inches in depth, along the side and under the belt
conveyor for a distance of approximately 900 feet.
However, Delp
did not describe the presence of any specific condition which
NOUld make the event of ignition reasonably likely to occur.
Accordingly, I find that it has not been established that the
violation herein was significant and substantial.
The violation herein could lead to the propagation of a
fire, which could travel along a belt. Further, persons would
not be warned of the fire by either an auditory or visual alarm.
I conclude that the violation was of a moderately high level of
gravity.
There has been no evidence adduced as to the length of
tima the violation existed prior to Delp's inspection.
Nor has
there been any evidence adduced to predicate a conclusion that
Respondent knew or should reasonably nave been expected to know
that the violation had occurred.
~ccordingly, I conclude that
Respondent herein operated with only a low degree of negligence.
I find that the penalty herein of $75 is appropriate.

2103

Citation No. 3206325
On February 1, 199-0, Delp issued Citation No. 3206325.
According to Delp, Respondent violated the approved Ventilation
Plan, ("the Plan") by: (1) removing two concrete stoppings that
had been in the No. 5 intake entry, and replacing them with
"loosely hanging" line brattice cloth (Tr. 141), and (2)
installing a brattice cloth over an opening in an overcast.l/
The Plan, with regard to permanent stoppings, provides that-they
are "constructed of 4" x 8" x 16" concrete block and pilaster."
(sic)
(Government 5, Attachment BJ. The Plan further provides
that "Temporary stoppings are constructed o:t mining timbers,
l" x 2" x 2" boards, and approved brattice material."
(Government 5, Attachment CJ.
Respondent did not rebut or impeach Delp's testimony that
brattice cloth, that did not have any boards, were instaLled at
locations that previously contained permanent stoppings. Brattice
material is clearly not permitted by the Plan to be used as a
permanent stopping, as by its terms, only concrete blocks and
"pilaster" (sic) are allowed.
In essence, according to Couch, the
line brattices were installed for use only as temporary stoppings.
There is no evidence Respondent applied for approval to change its
Plan and replace permanent stoppings with temporary ones. Further,
according to the Plan, temporary stoppings are to be constructed of
boards and approved brattice material.2/ In contrast, although the
brattices herein were approved flame-resistant, they were hung
without boards. Thus, I find that Respondent did violate its
Ventilation Plan.
The Citation issued by Delp indicates the violation to be
significant and substantial. No evidence was adduced specifically with regard to the likelihood of a hazard contributed to by
the violation, resulting in an injury.
(See, Mathies, supra).
In general, Delp indicated that the hazards with regard to the
violation herein are the same as was discussed by him in connection with Citation No.3206457.
In this previous testimony Delp
set forth the hazards of belt and intake air mixing. However,

!I

For the reason set forth in the disposition of Citation
No. 3206457, infra, I find that it nas not been established that
the installation of a line brattice to cover an opening in an
overcast violates the ventilation Plan.

~/

I interpret Government Exhibit 5, Attachment C, as indicating
that the Plan requires brattices to be used in conjunction with
boards.

2104

these hazards were created because the brattice cloth did not
provide a perfect seal where it replaced permanent stoppings.
In
contrast, the record is lacking sufficient evidence as to the
hazards contributed to by the violation herein, i.e., the
utilization, oer se of a material that is not permitted by the Plan
for use as a Stopping.
Accordingly, I conclude that it has not
been established that the violation herein was significant and
substantial.
According to Couch, the permanent stoppings were removed to
allow equipment .to be taken in and out the entry in question to
rebuild supports necessitated by a bad roof condition. Further,
he indicated that permanent stoppings, called £or by the Plan,
were not rebuilt, as an overcast was placed where the temporary
stopping was located. Couch also indicated that curtains, of the
same material as the brattices in issue, are used at the face to
deflect air.
I find that Respondent in utilizing the cloth in
question, acted pursuant to a good faith belief that the material
was allowed by the Plan.
I conclude that Respondent was
negligent to a low degree.
I find that the gravity of the violation to be moderate.
I find that a penalty of $75 is appropriate
for this violation.
Citation No. 3206326
Delp issued Citation No. 3206326 alleging a violation of
30 C.F.R. § 75.507-l(a) in that a power center was located in the
No. 2 Entry approximately 60 feet outby Survey Spad No. 148.
Delp in his testimony indicated that the power center was not
permissible and was in a return entry ventilated by return air.
Section 75.507-l(a) prohibits nonpermissible equipment in return
air.
Essentially, according to Delp, return air from the
008 Section, where coal was being mined, coursed through Return
Entry No. 2 where the power center was located.
According to
Delp, the air in Entry No. 2 is considered return air as it comes
off the 008 Section where coal was being mined.
Respondent did
not rebut or otherwise impeach the credibly of this te~timony.
Further, Delp's definition of return air is consistent with that
contained in A Dictionary of Mining, Mineral, and Related Terms
(Department of Interior, 1968) ("DMMRT"), which defines "return
air" as " • . . 2.b. Air which has circulated the workings and is
flowing towards the main mine £an." Accordingly, I find that
Respondent herein did violate Section 75.507-l(a), supra, as
alleged.
According to Delp, there would be a "probable" ignition
source if dust or gad is carried from the working section and
3ets into the the nonpermissible power center which has various
electrical components operating at 12,470 volts (Tr. 183). He
indicated that the cable supplying electricity to the power

2105

center does experience shorting, and he knows of situations where
high voltage cables have blown up causing sparks and heat.
However, no evidence was adduced with regard to the ~ondition of
the specific cable that was connected to the power center.
Delp s~ated that with an accumulation of methane and float
dust from the face, there would be "more potential" for ignition
and explosion CTr. 184). He indicated that testing by him within
60 feet of the cited area, revealed methane at concentrations of
.01 percent or 3180 cubic feet per 24 hour period in the
No. 2 Entry, and 2400 cubic feet per 24 hour period in the
No. 1 Entry.
However, he indicated on cross-examination that
"what counts" is the percentage of methane and the percentages
present were not combustible (Tr. 194). I find this evidence
fails to establish that the violation was significant and
substantial.
According to Delp, the location of the power center ~as
obvious.
Respondent did not rebut or impeach this conclusion.
I
find the neg£igence herein be moderate.
I conclude the gravity
was moderate.
I find that a penalty of $100 is proper for the
violation found herein.
ORDER
It is ORDERED that Citation No. 3206457 be DISMISSED.
It is
further ORDERED that Citation Nos. 3206452, 3206454, 3206323,
3206325, and 3206326 be AMENDED to reflect the fact that the
violations therein are not significant and substantial.
It is
further ORDERED that Respondent pay $650, within 30 days of this
Decision, as a Civil Penalty for the violations found herein.

bwe~

Administrative Law Judge

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, u. s. Department
of Labor, 2002 Richard Jones Road, ·suite B-201, Nashville, TN
37215 (Certified Mail)
Neville Smith, Esq., Smith & Smith, 110 Lawyer Street, Manchester,
KY 40962 CCertif ied Mail)
dcp

2106

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

22041

OCT 2 61990
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 90-67
A. C. No. 36-05466-03721

v.
Emerald No. 1 Mine
CYPRUS EMERALD RESOURCES
CORPORATION,
Respondent
DECISION
Appearances:

Anita D. Eve, Esq., Office of the Solicitor, U. s.
Department of Labor, Philadelphia, Pennsylvania,
for the Secretary;
·
Michael R. Peelish, Esq., Cyprus Minerals Company,
Englewood, Colorado, for the Respondent.

Before:

Judge Weisberger

Statement of the Case
In this proceeding the Secretary (Petitioner) filed a
petition for an assessment of civil penalty alleging a violation
by the Operator (Respondent) of 30 C.F.R § 75.316.
Subsequently,
the Respondent filed a timely Answer, and pursuant to notice, the
case was heard in Washington, Pennsylvania, on July 31, 1990. At
the hearing, Walter Daniel and Robert Newhouse testified for
Petitioner. Dennis Dobosh and Edmund Francis Mcintire testified
for Respondent.
Respondent filed a Posthearing Brief on
October 11, 1990. On October 18, 1990, Petitioner's Findings of
Fact, Conclusions of Law, and Brief were received.
Stioulations
At the hearing, the Parties entered into the following
stipulations:
1. Cy?rus Emerald Resources Corporation is the owner
and operator of tha Ewerald No. L Mine locaced in
Greene County, Pennsylvania.
2. Cyprus Emerald Resources Corporation and its
Emerald No. 1 Mine are subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977.

2107

3. The Administrative Law Judge of the Federal Mine
Safety and Health Review Commission has jurisdiction
over this case oursuant to .Section 105. of the Act.
.
~

4. A ·copy of Section 104 and Citation No. 3098272 was
properly served by Walter Daniel, a duly authorized
representative of the Secretary of Labor, U. S.
Department of Labor, upon an agent of Respondent,
Cyprus Emerald Resources Corporation, on July 26, 1989,
at the time and place stated therein and may be
admitted into evidence for the purpose of establishing
its issuance, not necessarily for the truthfulness or
relevancy of any statements asserted therein.
5. Cyprus Emerald Resources Corporation is a large
operator and the subject mine is a large mine.
6. Cyprus Emerald Resources Corporation's operation·s
affect interstate commerce.
7.
In the 24 months preceding the issuance of Citation
No. 3098272 there were 700 violations cited in the
subject mine.
8. The assessment of a Civil Penalty in this
proceeding will not affect the coal mine operator's
ability to continue with business. (sic).
9.
Emerald Mine No. 1 is a gassy mine in that it
lib·arates more than 2, 000, 000 cubic feet of metnane or
other explosive gasses during the 24-hour period during
mining operations and is under the five day spot
inspection cycle mandated by Section 103(i) of the Mine
Act, 30 u.s.c. Section 813, Section Ci).
Findings of Fact and Discussion

I.
On July 26, 1989, at the 4 Gate Section of Respondent's
Emerald Mine No. 1, intake air coursing inby Entry No. 2
ventilated the face, and then was returned from the face through
a 16 inch diameter slider tube that had been placed inside a
20 inch diameter tube, and which extended from the 20 inch main
tube inby towards the face.
Walter Daniel, an MSHA Inspector,
inspected this area on July 26, 1989, and issued a Section 104(a)
Citation alleging a violation of 30 C.F.R. § 75.316.
Essentially, he testified that the equipment used by the
Respondent was in violation of its ventilation plan, wh-ich
provides, under the page heading AUXILIARY F~N INFORMATION, inter
alia, the following language under the paragraph heading •rype and
Diameter Tubing "Tubing is made of rigid plastic. They are 18"
diameter tubes, with 16" diameter slider tubes."
(Government

2108

page 19). Essentially, it is Respondent's position that the
language in the ventilation plan sets forth only minimum
standards, and accordingly, it was not in violation of the plan
by supstituting a 20 inch diameter tube in lieu of a 18 inch
tube • .::/
·
Dennis Dobosh, Respondent's safety supervisor, testified
that although he was not responsible for dratting the language
contained in the Ventilation Plan, ("the Plan"), he was nontheless responsible for its content. He testified that the Plan
sets forth language indicating that the tubing is of 18 inch in
diameter with 16 inch diameter slider tubes, as these were the
diameter of the tubes that were being used, and thus the use of
the larger tubes was not precluded.
I find that the clear language of the ventilation plan, in
setting forth the type and diameter of tuning, refers to 18 inch
diameter tubes with 16 inch slider tubes.
Thus, inasmuch as
Respondent herein was using a 20 inch diameter tube, which was
not in conformity with the ventilation plan, Respondent violated
Section 75.316, supra, as alleged in the issued Citation.
I/ Essentially, it is also Respondent's position that it was in
7ull compliance with the ventilation plan.
The plan requires
6000 cubic feet a minute of air to ventilate the working face
wnere a continuous mining machine is being operated, and only
"perceptible movement" (Respondent Exhibit No. 2, page 2) in a
worging place where a continuous miner is not in operation.
In
this connection, Respondent's Mine Examiner's Report of Daily
Insoections indicates that on July 26, ·1989, at S:UO a.m., the
face was ventilated with 9630 cubic feet per minute.
At the time
the Citation was issued the continuous miner was being repaired
in the fourth crosscut outby the face.
There is no direct
evidence of the actual air flow at the face.
However, Daniel
indicated that the readings he took at the 20 inch· and 16 inch
tubes reveled air movements of less than 6000 and less than
5000 cubic feet a minute respectively. Thus, it could easily be
inf erred that there was at least perceptible movement of air at
the face at the time of the Citation, and accordingly Respondent
was in compliance with the portion of its plan requiring minimum
ventilation of air.
This fact is taken into account in evaluating the gravity of the violation, and the degree of
Respondent's negligence.
(III., infra).
However, it is not a
successiul defense, as it does not reout the fact of the violation itself.
In this connection, the violation is predicateci
upon the usage of a 20 inch diameter tube with a 16 inch diameter
slider tube, whereas the Ventilation Plan unequivocally states
that the type of tubes are 18 inches in diameter with 16 iach
diameter sliders.

2109

II.
According to Daniel the violation herein is to be characterized as significant and substantial.
Robert w. Newhouse, a
supervisory coal mine inspector, essentially concurred in this
characterization. The subject mine has a history of ignitions,
and is a gassy mine. Daniel indicated that on July 26, prior to
the issuance of the citation in question, testing performed by
him at a point approximately 20 feet outby the face, revealed
methane in a concentration of .9 percent, which he termed "borderline" CTr. 39). Both Daniel and Newhouse opined that there were
would be more methane found at the face as that is where it is
generated.
As explained by Daniel and Newhouse, some of the
intake air coursing inby Entry No. 2 towards the face would be
diverted from the face and would enter the 20 inch diameter tube,
as a consequence of a significant gap in its opening created by
tne placement therein of a tube whose diameter was only 16 inches.
rhe gap created is clearly double that which would have resulted
had a 16 inch f lexiole tube neen placed inside an 18 inch diameter
tube as provided by the ventilation plan.2/ In this connact1on, an
inspection report indicated that at 5:00 a.m., on July 26, Entry
No. 2 face was found to have .7 percent methane, even though it was
being ventilated with an air flow of 9630 cubic feet per minute.
Dobosh in his cross-examination conceded that if this air flow
would be decreased it could result in a methane problem. Thus, it
is clear that the placement herein of a 16 inch diameter slider
tube within a 20 inch tube contributed to the hazard of a methane
build up, which could have led to a build up in an explosive range
of between 5 and 15 percent.

~/

I do not place much weight on the testimony of Newhouse that
placing a 16 inch diameter tube within a 20 inch diameter tube
resulted in a 40 percent loss of air to the face.
This conclusion
is predicated upon the testimony of Daniel with regard to a comparison of the air flow through the 16 inch and 20 inch diameter tubes.
However, the testimony of Daniel can not be relied on on this point
as he did not testify to the exact specific air flow, but merely
indicated that at the 20 inch tube it was less than 6000 and at the
16 inch tube less than 5000.
Similarly, I do not place much weight
on the testimony of Dobosh that the air lost in using a 20 inch
tube to contain a 16 inch slider tube is only 16 percent, as this
was based solely upon a calculation of the difference in the area
of the opening to each tuoe, and dia not take into account any
difference in air resistance.
Nor did it taxe into account the
impact oi the difference in distance between the opening of each
tube and the ventilation fan.
It is noted, in this connection,
that the slider or innertube protruded from the outer tube inby
towards the face, but the evidence is lacking as to this distance.

2i10

In order for the violation herein to be considered to be
significant and substantial, Petitioner must establish that there
was " • • • a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
(U.S.
Steel Mining Incorporated 6 FMSHRC 1834 at 1836 (1984)).
In this
connection Daniel testified that, considering the gassy nature of
the mine, and the reading of .9 percent found on the date of the
citation, there "could have been" an ignition upon a resumption
and continuation of mining (Tr. 41). Newhouse opined that inasmuch as air was not properly getting to the face, a methane
ignition was "very likely" (Tr. 106).
He also indicated that an
ignition could "~ery easily" burn someone <Tr. 106). According
to Daniel, two to four miners could have been injured. However,
at the time of the violation, the continuous miner was being
repaired, and Daniel indicated that there were no ignition sources
in-No. 2 Entry face. Further, the evidence has not convincingly
established that, once mining would have resumed, it would have
been reasonably likely, for the violative condition to have bled
sufficient air flow, to the extent that the amount of air going to
the face, would not have been sufficient to render harmless methane
ther~in.
In this connection, I note that the evidence is not
aoequate to predicate a specific finding as to the precise loss of
volume of air to the face occasioned by the gap between the 20 inch
outer tube and the 16 inch slider tube.
I tnus conclude that it
has not been established that it was reasonably likely that any
hazard of methane accumulation, contributed to by the violation,
would have resulted in an injury producing event.
I thus conclude
that it has not been established that the violation herein was
significant and substantial.
( c. f., U.S. Steel Mining Corporation,
supra) •
III.
I accept the testimony of Dobish that, in essence, Respondent
believed that having a lo inch slider tube within a 20 inch tube
was not a violation of its Ventilation Plan. There is no evidence
that this belief was not in good faith.
I thus conclude that there
was only a low degree of negligence on the part of the Respondent
with regard to the v~olation herein. Taking into account the facts
that there were no ~gnition sources at the face at the time of the
violative condition, and that the air flow at the face met the
5tandard set forth in the ventilation plan, but that the violation
could have led to a build up of methane at the face, I conclude
that the violation herein was of a moderate level of gravity.
I
conclude that a penalty of $150 is appropriate for the violation
found herein.

2111

ORDER
It is hereby ORDERED that the Respondent shall, within
30 days of this Decision, _pay $150 as a ci~il penaliy for the
violation found herein.
It is further ORDERED that Citation
No. 3098272 be AMENDED to reflect the fact that it is not
significant and substantial.

~We~

Administrative Law Judge

Distribution:
Anita D. Eve, Esq., Office of the Solicitor, u. S. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia, ·PA 19104 (Certified Mail)
Michael R. Peelish, Esq., Cyprus Minerals Company, 9100 East
Mineral Circle, Englewood, CO 80112 (Certified Mail)
dcp

2112

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

22041

OCT 2 91990
DISCRIMINATION PROCEEDING

ALOE COAL COMPANY,
Complainant

v.

Docket No. PENN 90-242-R
Citation No. 3092481; 8/24/90

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

Docket No. PENN 90-243-R
Citation No. 3092482; 8/24/90
Aloe Strips

and
Mine ID 36-00799
UNITED MINE WORKERS OF
AMERICA,
Intervenor
DECISION
Appearances:

David J. Laurent, Esq., Polito & Smock, P.C.,
Pittsburgh, Pennsylvania, for the Contestant;
Edward Fitch, Esq., Office of the Solicitor, U. S.
Department of Labor, Arlington, Virginia for the
Respondent;
Paul Girdany, Esq., Healey and Whitehill,
Pittsburgh, Pennsylvania for the Intervenor.

Before:

Judge Weisberger

Statement of the Case
These cases are before me based on a Motion for an Expedited
hearing filed on August 29, 1990, contesting the issuance of
Citation No. 3092481 and Order No. 3092482. On August 29, 1990,
pursuant to a telephone conference call on that date between the
undersigned, Counsel for both Parties, and Counsel for the
International Union, United Mine Workers of America (UMWA), the
casas were set for hearing in Pittsburgh, Pennsylvania, on
September 6, 1990. On September 4, 1990, the International
Union, UMWA, filed a Notice of Intervention. On September 4,
1990, Intervenor initiated a conference call between the undersigned and Counsel for the other Parties, and requested an
adjournment of tne hearing scheduled for September 6, 1990, on
the grounds that a possible witness would not be available on
that date.
N~ither Counsel fer Contescant nor Counsel for
Respondent objected to this request and it was granted. These
cases were rescheduled and were heard in Pittsburgh, Pennsylvania,

2113

on September 28, 1990. At the hearing, Charles P. Swingle and
Grant MacSwain testified for Contestant. Frederick A. Miller,
Thomas Rabbitt, Greg Shuba, and _Thomas Semak testified for
Intervenor.
On September 26, 1990, Respondent filed a Prehearing Brier.
At the hearing on September 28, 1990, Intervenor filed a
Memorandum of Law in opposition to the Notice of Contest. At the
hearing, Contestant requested and was granted 10 days to file a
Posthearing Memorandum of Law, which was filed on October 9, 1990.
At the hearing, Contestant did not object to the request by
Respondent to be allowed 10 days to respond to Contestant's
Posthearing Memorandum of Law, and accordingly, Intervenor and
Respondent were granted the right to file a Reply within 20 days
from the date of the hearing. On October 12, 1990, Intervenor
filed a Memorandum of Law in response to Aloe Coal Company's
Posthearing Brief. Respondent did not file any Reply.
Stipulations and Findings of Fact
The Parties have stipulated to the following relevant facts:
1. Aloe operates a bituminous coal strip mine in
Allegheny and ~ashington Counties, Pennsylvania.l/
2. On July 10, 1989, Aloe's employees, who were
represented by the UMwA for purposes of collective
bargaining, commenced a strike at the Aloe
Mine.2/ Shortly thereafter, Aloe resumed mining
operations with thirteen (13) replacement workers and
six (6) Striking employees who had crossed the picket
line and returned to work.~/

I/ At the hearing, it was stipulated that Aloe Holding Company
Ts owned by six members of the Aloe family, and the Aloe Holding
Company owned 100 percent of the stock of Aloe Coal Company and
Boich Mining Company, _both of which are operating companies that
mine bituminous coal.
It was further stipulated that the six
members of the Aloe family that own Aloe Holding Company individually own Robinson Coal Company which is engaged in the mining of
coal. It also was stipulated that the Aloe family members and/or
the Aloe Holding Company have other interests that are not
pertinent to these proceedings.
2/ I find that as of the date of the hearing, these employees
were still on strike, and that the last negotiating session was
March 13, 1990.
3/ I find that Aloe presently has a full complement of
active workers and is not planning to expand its work force.

2114

3. Aloe converted the thirte8n (13) replacement
workers to permanent status and by letter dated
March 23, 1990, the Regional Director for Region Six of
the National Labor Relations Board ("B6ard") stated
that Aloe had lawfully converted these individuals to
permanent status and had lawfully notified the UMwA of
this fact subsequent to December 8, 1989.
4. Both Aloe and the UMWA have been enjoined by the
Courts of Common Pleas of both Wasnington and Allegheny
Counties, Pennsylvania, from engaging in certain acts
of picket line misconduct, including mass picketing at
Aloe's operations in those Counties.
Additionally, the
Court of Common Pleas of Washington County,
Pennsylvania has found the UMWA in contempt of its
permanent injunction.~/ The Parties, however, agree
that the aforesaid injunctions do not bar access to
mine property by UMWA representatives to accompany a
federal ins~ector on an inspection if it is determined
in these proceedings that Section 103(f) of the Mine
Safety and Health Act of 1977 <"Act"), 30 u.s.c.
Section 813(f) provides the UMWA with such participation rights.
5. On July 5, 1988, while the UMWA members at Aloe
were continuing to work without a contract and the UMWA
and Aloe were engaged in negotiations, a settlement
agreement was entered into with the National Labor
Relations Board as a result of charges which tne UMWA
filed against Aloe alleging unfair labor practices at_
5-CA-20892. This case was closed on October 6, 1989.~/
6. On September 25, 1989, another settlement agreement
was entered into with the National Labor Relations
Board at 6-CA-21989 as the result of charges which the
UMWA had filed against Aloe alleging unfair laoor
practices. Said September 25, 1989 settlement agreement provided that "the ongoing economic strike at the
Aloe Mine was converted to an unfair labor practice
strike effective July 30, 1989 and will continue to be
~1
It was stipulated that true and correct copies of the
Injunction and Contempt Orders were attached to the Stipulations
as Joint Exhibit 2-4. These documents were admitted in evidence
as Joint Exhibits 5 and 6.

5/

It was further stioulated that a true and correct copy of the

~losing compliance let~er and the Settlement Agreement (with

change attached) was attached to the Parties' Stipulations as
Exhibits 5 and 6. These documents were admitted in evidence as
Joint Exhibits 5 and 6.

2115

an unfair labor practice strike until the Employer
complies with all the terms of the instant settlement
agreement." This case was closed on December 11,
1989.~/
.
7. On March 22, 1989, a third settlement agreement was
entered into with the National Labor Relations Board at
6-CA-22304 as the result of charges which the UMWA had
filed against Aloe alleging unfair labor practices.~/
8. There a~e currently pending before the National
Labor Relations Board six (6) charges filed by tne UMWA
against Aloe alleging unfair labor practices committed
by Aloe. These Charges are numbered 6-CA-22871, 22898,
22960, 22971(1-2), and 23006.~/
9. On June 8, 1990, Aloe filed a certification petition with the Board seeking to have an election ~o
ascertain the UMWA's continued status as the bargaining
representative for its employees. The petition is
still pending, but an election has not yet been
scheduled.~/

10. By letter dated ~ugust 15, 1990, the Regional
Director for Region Six of the Board dismissed charges
filed by the UMWA which alleged that Aloe had, on
June 6, 1990, unlawfully withdrawn recognition from the
UMWA as the collective bargaining representative of
Aloe's employers. This decision is presently being
appealed by the UMWA
b/ It was further stipulated that true and correct copies of the
Settlement Agreement (with change attached) and the closing
compliance letter was attached to the Parties' Stipulations as
Exhibits 7 and 8. These have been admitted in evidence as Joint
Exhibits 7 and 8.
7/ It was further s~ipulated that a true and correct copy of the
Settlement Agreemen~ (with change attached) was attached to the
Stipulations as Exhibit 9. This was admitted in evidence as
Joint Exhibit 9.
~/

It was stipulated that a true and correct copies of these
changes are attached to the Stipulations as Exhibit 10. This was
admitted in evidence as Joint Exhibit 10.

9/ It was stipulated that a copy of the Petition was attached to
the Stipulation as Exhibit 11. This was admitted in evidence as
Joint Exhibit 11.

2116

11. All but one of Aloe's twelve (12) UMWA strikers
have applied for and are receiving unemployment compensation benefits under the Pennsylvania's Unemployment
Compensation Act, 43 P.S. Section 751 et seq., on the
basis that since they have been per;,nanently replaced,
the employer/employee relationsnip has been permanently
severed.~/

12. Prior to July 10, 1989, the UMWA and Local
Union 9636's health and safety committee was, pursuant
to 30 C.F.R. Section 40.3, the designated representative of the miners at the Aloe Mine.
13. On or about August 17, 1990, the UMWA advised the
District Manager of the Mine Safety and Health
Administration ("MSHA") District No. 2 that two of
Aloe's UMWA strikers (Gary Metz and Frederick Al
Miller) had designated Greg Suba,11/ a UMWA employe~,
as their µwalkaround" representative within the meaning
of Section 103(f) of the Act, and the regulations published at 30 C.F.R. Section 40.3. The UMWA also
advised the District Manager that two other
International UMWA officials, Tom Rabbitt and Larry
P3squale, would serve as alternate representatives in
the event that Mr. Suba was unable to fulfill his
duties.12/
14. •rhe UMWA members who designated Messrs. Suba,
Rabbitt, and Pasquale as their representatives are
among those who have been on strike at the Aloe mine
since July 10, 1989.
15. By letter dated August 22, 1990, counsel for Aloe
notified the District Manager for MSHA's District No. 2 that
it would refuse to allow the UMWA representatives to
accompany an MSHA Inspector during an inspection of the Aloe
Mine.~/

10/ It was stipulated that true and correct copies of these
benefits were attached to the Stipulations as Exhibits 13-23.
These were admitted in evidence as Joint Exhibit 13-23.
11/

The correct spelling is Shuba

12/ It was stipulated that a true and correct copy of the
Authorization Form was attached to the Stipulations as Exhibit 24.
This has been admitted in evidence as Joint Exhibit 24.
~/

It was stipulated that a true and correct copy of the letter
was attached to the Stipulations as Exhibit 25.
This was admitt2d
in evidence as Joint Exhibit 25.

2117

16. By letter dated August 23, 1990, Aloe notified the
District Manager for MSHA's District No. 2 that all of
Aloe's non-striking employees had selected Charles P.
Swingle (an engineer for Aloe) as their representative
in accordance with 30 C.F.R. Section 40.3.~/
17. On Friday, August 24, 1990, Federal Mine Inspector
John Mull arrived at the Aloe Mine for purposes of
conducting an inspection pursuant to Section 103(g) of
the Act, 30 U.S.C. Section 813(g).
At the time,
Inspector Mull indicated that Mr. Suba wished to
accompany him as a "walkaround" pursuant to 30 C.F.R.
Section 40.3.
18. Aloe refused to permit Mr. Suba or any other UMWA
official or representative to enter the Mine and
accompany Inspector Mull during the inspection.
19. Thereafter, Inspector Mull issued Citation
No. 3092481. The Citation stated in pertinent part as
follows:
During the course of a 103Cg) inspection
conducted on August 24, 1990, by the writer,
Grant P. MacSwain, Vice President, refused to
permit Greg Shuba (sic), a recognized representative of the miners in accordance with Part 40.3
Title 30 C.F.R., access to mine property to
accompany this Inspector on a (sic) inspection.
Aloe Coal Company also indicated in a letter
dated August 22, 1990, from its attorney,
J. Michael Klutch, to Jennings D. Breedon, MSHA
District Manager, stating, "Aloe will refuse
access to its facilities to members, officers, and
other representatives of the UMWA for the purpose
of accompanying inspectors from the Federal Mine
Safety and Health Administration as a 'walkaround'
on health and safety inspections."
20. After a reasonable time to allow abatement of the
Citation, Inspector Mull issued Order No. 3092482. The
Order stated in pertinent part as follows:
14/ It was stipulated that a true and correct ~opy of the letter
was attached to the Stipulations as Exhibit 26.
This letter was
admitted in evidence as Joint Exhibit 26.
At the hearing, it was
further stipulatea that on August 23, 1990, representatives of
MSHA were aware of the substance of Exhibit 26, and that the
inspector saw a copy oi that document prior to issuing the
Citation on August 24.

2118

No apparent effort was made by the operator to ?ermit Greg Shuba Csic), a recognized
representative of the miners, from traveling
to mine property to accompany this inspector
on this inspection. Grant MacSwain informed
this inspector that Aloe would not permit
Greg Shuba (sic) on mine property.
21. By letter dated Tuesday, August 28, 1990, Roger

w. Uhazie, Acting District Manager for MSHA's District
No. 2, advised Aloe's President, David Aloe, that
unless Aloe filed a Notice of Contest with the Federal
Mine Safety and Health Review Commission ("Commission")
on or before August 31, 1990, and unless Aloe requested
an expedited resolution of this matter, MSHA would
implement Section llO(b) of the Act and propose a civil
penalty of up to One Thousand Dollars ($1,000.00) for
each day that a failure to correct the cited violat1on
continued. Mr. Uhazie also advised Mr. Aloe that if
Aloe filed a Notice of Contest seeking an expedited
resolution of this matter, MSHA would hold the
Section llOCb> sanctions in abeyance pending a decision
from the Commission on its Notice of Contest.15/
Summary of the Facts
On July 10, 1989, the employees of Aloe Coal Company
("Aloe"), who were represented by the United Mine Workers of
~~erica CUMWA) for purposes of collective bargaining, commenced a
strike at the Aloe Mine. As of the date of the hearing the
striKe had not settled, and there have not been any negotiations
since March 1990. Aloe has continued operations with 13 replacement workers, who have been converted to permanent status, and
6 striking employees who returned to work.
On or about August 17, 1990, the UMWA advised the District
Manager of the Mine Safety and Health Administration CMSHA),
District No. 2, that two of the UMWA strikers had designated Greg
Shuba, an UMWA employee; as their walkaround representative for
purposes of Section 103(f) of the Federal Mine Safety and Health
Act of 1977 (the Act).

15/ It was stipulated that a true and correct copy of
Mr. Uhazie's letter was attached to the Stipulations as
Exhibit 29.
This letter was admitted in evidence as Joint
Exhibit 29.

2119

By letter dated August 23, 1990, Aloe notified the District
Manager for ~SHA District No. 2 that all of Aloe's nonstriking
employees had selected Charles Swingle as their walkaround
representative. On August 24, 1990, MSHA Inspector John Mull
arrived at the Aloe Mine to conduct an inspection, pursuant to a
request filed by UMWA. Mull indicated that Shuoa wished to
accompany him as a "walkaround." Aloe refused to allow Shuba to
enter the mine as a walkaround.
Mull issued a Citation, and
thereafter a Section 104(0) Order alleging that Aloe improperly
denied Shuba access to the mine to accompany him on an inspection,
and that, accordingly, Aloe was in violation of Section 103(f) of
the Act.
Discussion
As pertinent Section 103(f) of the Act provides " • • • a
reoresentative authorized by his miners • • • . " shall be given
an-opportunity to accompany a representative of the Secretary
during an ins9ection of a mine. Thus, the clear language of
Section 103(f), supra, indicates that only those representatives
who are authorized by "miners," have a right to accompany an
inspector.
Section 3(g) of the Act defines "miner," as " . • • any
individual working in a coal or other mine;." Thus the issue
presented for resolution is whether the striking employees of Aloe
wno selected Shuba to represent them as a walkaround, are considered
to be "miners" as defined in the Act.
Intervenor asserts that the Act is remedial in nature, and
thus must be interpreted broadly. In 8Ssence, Intervenor and
Respondent argue that the striking miners have an expectation of
returning to work, and they and their representative have a vital
interest in maintaining safety of the work place. For the reasons
that follow, I reject these arguments.
In deciding this case, I conclude that the statutory definition of a "miner," as set forth in Section 3(g) of the Act, is
controlling. There is an absence of binding legal authority that
would permit an expansion of the statutory def in1tion of a
"miner" beyond its plain meaning.16/ In contrast, the 10th and
D.C. Circuit Court~ of Appeal haverefused to extena tne term
"miner" beyond the clear wording of the statutory definition.
16/ In Clinchfield Coal Company, Docket No. VA 89-687-R, which
is relied on by Respondent and Intervenor, Judge Broderick at a
hearing, in a contest of a Closure Order, sustained a Motion by
UMWA to intervene on behalf of striking employees.
I am not
bound by a ruling of a fellow Commission Judge. Further,
Clinchfield is inapplicable to the instant case (n.17, infra).

2120

In Emery Mining Corporation v. Secretary of Labor,
783 F.2d. 155 (10th Cir. 1986), the operator had refused to
compensate its miner employees for training they received prior
to their having been hired.
In holding that the operator's
policy did not violate the Act, the Court held that although the
Act requires training for "new miners," none of the complainants
therein were miners or employed by the operator at the time that
they took their training. Thus, the Court refused to extend the
plain meaning of the statutory definition of the term "miner,"
reasoning as follows:
"When, as here, a statue is clear on its
face, we can not expand the Act beyond its plain meaning."
(Emery, supra, at 159). I find that this reasoning applies with
equal force to the case at bar.
Inasmuch as the Act on its face
clearly limits the use of the term "miner" to those individuals
"working" in a mine, it can not be expanded beyond its plain
meaning to encompass individuals on strike as they are clearly
not working in the mine.
(See, also, National Industrial Sand
Association v. Marshall, 601 F.2d 689 (3rd Cir. 1979), wherein
the Court upheld regulations requiring, inter alia, the training
of none.mployees working in a mine, and hela, at 704, that, with
regard to the definition of a ''miner" as contained in the Act,
"As its standard, the statue looks to whether one works in a
mine, not whether one is an employee or nonemployee or whether
one is involved in extraction or nonextraction operations.")
In Brock on behalf of Williams v. Peabody Coal Company,
822 F.2d 1134 (D.C. Cir., 1987), an operator of a mine, in
rehiring laid-off employees, passed over some individuals at the
top of the list because they had not received safety training.
The Court indicated that the issue for resolution was whether the
laid-off individuals who had been passed over, qualified as miners
while they were laid-off. The Court rejected the argument of the
Secretary that a miner is one who is contractually entitled to
employment. The Court took cognizance of the definition of a
"miner" as contained in the Act, and noted the " • • • obvious fact
that, at the moment when the operators decided not to recall them,
they were not •working in a coal • • • mine,' but were instead on
layoff."
(Peabody, supra, at 1140).
(See, Westmoreland Coal
Company, 11 FMSHRC 960(1989) wherein the Commission, in finding
that individuals who obtained training at their own expense during a
layoff were not entitled to reimbursement, held that individuals on
a layoff status are not miners.
See also, Emery, supra, wherein the
Court, in reversing the Order of the Commission requiring an
operator to compensate laid-off miners for prehire training that
occurred while they were laid-off, found that it was uncontested
that the laid-off individuals were not miners or employees and
refused to extend the statutory definition oi a miner to encompass
individuals who were in a laid-off status).

2121

I conclude that a plain reading of the statutory definition
of "miner" excludes laid-off employees as well as those on strike
as both are not working in a mine.~/ Indeed, following the case
law established by Peabody, supra, Emery, suora, and Westmoreland,
supra, it might be concluded that if an individual not working in a
mine due to being to laid-off solely by virtue of an act of the
Operator, is not to be considered a "miner," then, a fortiori, an
individual who takes action in removing himself from working in a
mine by striking, is certainly not to be considered within the
definition of a "miner."
Inasmuch as the employees who appointed Shuba to represent
them were on strike they were not miners within the Act.
Accordingly Shuba was not a representative of miners and thus did
not have any right to serve as a walkaround.18; As such the
Contest is sustained.
~

II/ I do not find Clinchfield Coal Company, supra, relied on by
both Respondent and Intervenor to be applicable to the £acts of
the instant case.
In Clinchf ield, supra, the operator sought to
challenge a Closure Order issued by an MSHA Inspector, and the
UMWA so~ght to intervene on behalf of striking employees.
The
opetator contended that the striking employees should not be
considered "miners" under the Act.
Judge Broderick in allowing
UMWA to intervene reasoned that a decision on the contest of a
Closure Order may affect the interests of miners who are on
strike and are represented by the UMWA, and concluded that the
striking miners were "miners" under Section 3(g} of the ~ct.
However, as noted correctly by Contestant, Judge Broderick
indicated that his conclusion was not "open-ended," and relied on
evidence that the employees therein were only on scrike for
4 months, and the employer and the Union were presently engaged
in negotiations.
In contrast, in the case at bar, the strikers
have been permanently replaced, the strike has lasted for over
14 months, and the Parties are not negotiating.
18/ It is significant to note that the safety interests of those
miners who were working at the mine on a day-to-day oasis are
being protected, inasmuch as all the nonstriking employees
selected a walkaround to represent tneir interests during MSHA
Inspections.

2122

ORDER
It is ORDERED that the Notice of Contest is SUSTAINED, and
it is further ORDERED that Citation No. 3092481 and Order
No. 3092482 be DISMISSED.

J< ~

Avra,n Weisberger
Administrative Law Judge
Distribution:
David J. Laurent, Esq., Polito & Smock, P.C., Four Gateway Center,
Suite 400, Pittsburgh, PA 15222 (Certified Mail}
Edward Fitch, Esq., Office of the Solicitor, u. s. Depar~ment of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail}
Paul Girdany, Esq., Healey and Whitehill, Law and Finance Building,
5th Floor, Pittsburgh, PA 15219 (Certified Mail}
dcp

2123

FEl)ERAL MINE SAFETY AND HEALTH ltEVIEW, COMMISS·10N
1730 K STREET NW. 6TH FLOOR
WASHINGTON, D.C.

20006

October 29, 1990

CIVIL PENALTY PROCEEDING

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

Docket No. SE 90-82
A. C. No.

v.

01-00323-03633

Chetopa Mine

DRUMMOND COMPANY
INCORPORATED,
Respondent

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

The parties have filed a joint motion to approve settlement
of the one violation involved in this case. The originally
assessed penalty was $1,000 and the proposed settlement is $600.
The parties have discussed the violation in light of the six
statutory criteria set forth in section llO(i) of the Federal
Mine Safety and Health Act of 1977.
Citation No. 3020731 was issued for a violation of 30 C.F.R.
because a travelway was not maintained around a partial
mining area due to roof falls near the survey station. The
approved ventilation plan requires that travel be maintained
until the area is sealed. The parties represent that the
proposed reduction is justified because negligence and gravity
were less than originally estimated. According to the parties,
the operator was travelling and examining the return air course
up to the back portion of the roof fall and the air course beyond
the roof fall.
However, the partial area of the air course where
the roof fall was located, was not being traveled because the
operator erroneously believed that it did not have to provide a
travelway throughout the entire return air course. The operator
thought that in order to comply with the plan, it only was
required to examine behind the gob area. The parties advise that
the operator is now aware of its responsibilities under the plan
and that it immediately engaged in a good faith effort to correct
the situation. They also aver that gravity is reduced because
the number of miners affected by the violation was three or four
instead of the eleven originally identified.
I accept the
foregoing representations and find that gravity and negligence
were less than originally thought and approve the recommended
settlement which remains a substantial amount.
§ 75.316

2124

Accordingly, it is ORDERED that the proposed settlement be
APPROVED and the operator PAY $600 within 30 days of the date of
this decision.

- \

~

\~
.

...

Paul Merlin
Chief Administrative Law Judge
Distribution:
William Lawson, Esq., Office of the Solicitor, u. s. Department
of Labor, suite 201, 2015 Second Avenue North, Birmingham, AL
35203
(Certified Mail)
J. Fred McDuff, Esq., Drummond Company Inc., P.
Birmingham, AL 35202
(Certified Mail)

o. Box 10246,

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, N.W.,
Washington, DC 20005
(Certified Mail)
/gl

2125

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

20006

October 29, 1990

CIVIL PENALTY PROCEEDING

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

Docket No. SE 90-83
A. C. No. 01-02776-03510

v.

Bibby Mine

DRUMMOND COMPANY
INCORPORATED,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY

Before:

Judge Merlin

The parties have filed a joint motion to approve settlement
of the one violation involved in this case. The originally
assessed penalty was $800 and the proposed settlement is $400.
The parties have discussed the violation in light of the six
statutory criteria set forth in section llO(i) of the Federal
Mine Safety and Health Act of 1977.
Citation No. 3018301 was issued for a violation of 30 C.F.R.
75.220 because roof bolt spacing in the entry and adjacent
crosscuts ranged from 5-~ to 10 feet. However, the roof control
plan required that installed roof bolts be no further than 5 feet
apart. The parties represent that the reduction is justified
because the negligence and gravity were not as high as originally
estimated. According to the parties, this is a small mine which
had been examined by the same inspector for approximately four
months.
During that entire period, this was the only instance
where the inspector found the roof bolts to be in excess of 5
feet apart.
In addition, the parties advise that the number of
miners affected was three or four instead of the six originally
noted.
Finally, the parties aver that the two roof bolters
responsible for the violation were given disciplinary warnings in
accordance with the operator's progressive disciplinary program.
I accept the foregoing representations and approve the
recommended settlement which remains a substantial amount.
§

2126

Accordingly, it is ORDERED that the proposed settlement be
APPROVED and_ the operator PAY $400 within 30 days of the date of
this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
William Lawson, Esq., Office of the Solicitor, u. s. Department
of Labor, suite 201, 2015 Second Avenue North, Birmingham, AL
35203
(Certified Mail)
J. Fred McDuff, Esq., Drummond Coal Inc., P.
Birmingham, AL 35202
(Certified Mail)

o. Box 10246,

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, N.W.,
Washington, DC 20005 (Certified Mail)
/gl

2127

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

October 29, 1990

DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
RANDY SHERBROOK,
Complainant

Docket No. WEST 90-314-D
Dry Fork Mine

v.
T.I.C. WYOMING,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
ORDER OF DISMISSAL
Before:

Judge Merlin

On October 15, 1990, the parties filed a joint motion to
approve settlement in the above-captioned discrimination case.
The motion sets forth the proposed agreement as follows:
The parties having conferred and agreed and the
Secretary having been authorized by respondent to
represent such agreement to the Commission, hereby move
as follows:
1. Respondent was charged in the Complaint of
Discrimination filed on or about August 4, 1990, with a
violation of section 105(c) of the Mine Safety and
Health Act, for terminating the employment of Randy
Sherbrook.
2. Respondent has agreed, prior to the filing of the
answer in this matter, to settle the existing dispute
which is the subject of this action. Respondent will
pay to Randy Sherbrook $1,240.00 in full settlement of
all matters in issue in this case.
'
3. Respondent has agreed to completely expunge from
the personnel file of Randy Sherbrook, all comments and
references to the circumstances involved in the May 24,
1990 incident at the Dry Fork Mine which led to the
discharge of Mr. Sherbrook.
4. Accordingly, petitioner hereby agrees to withdraw
her request for any further relief on behalf of Randy
Sherbrook, withdraws her request for the assessment of

2128

a civil penalty and reinstatement of Randy Sherbrook,
and requests that this matter be dismissed. Such
request is to be effective upon the approval of this
settlement agreement by the Federal Mine Safety and
Health Review Commission.
5. Petitioner and Respondent agree that Randy
Sherbrook will sign a release of all claims arising out
of this action, prior to submission of this Motion to
the Commission, and in the event that he fails to sign
such release, the settlement will not be effective, and
the above amount will not be paid. Submission of this
agreement to the Commission is a certification by
Petitioner that such release has been signed.
6. Each party hereby agrees to bear its own fees and
other expenses incurred by such party in connection
with any stage of this proceeding.
WHEREFORE, the parties move the Commission to
approve the above settlement agreement pursuant to 29
C.F.R. § 2700.30, Rules of Procedure, FMSHRC, and to
order payment of $1240.00 to Randy Sherbrook within ten
days of the filing of an order approving settlement,
and to dismiss the complaint filed in this action.

I find the settlement appropriate under the circumstances
and note that the motion has been signed by all the parties
including the complainant.
Accordingly, it is ORDERED that the proposed settlement be
APPROVED and the operator PAY $1,240 to Randy Sherbrook within 10
days of the date of this order.
It is further ORDERED that this case be DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, u. s. Department of Labor, 1585 Federal Office Building, 1961 stout Street,
Denver, CO 80294
(Certified Mail)
Richard T. Casson, Esq., P. o. Box 774608, 401 Lincoln Ave.,
Steamboat Springs, CO 80477
(Certified Mail)

2129

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

22041

OCT 311990
CHARLES T. SMITH,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. KENT 90-30-D
MSHA Case No. BARB CD 89-27

KEM COAL COMPANY,
Respondent

No. 25 Prep Plant
DECISION

Appearances:

Michaels. Endicott, Esq., Ed Spencer's Law-Offices, Paintsville, Kentucky, for the
Complainant;
Timothy Joe Walker, Esq., Reese, Lang & Breeding,
P.S.C., London, Kentucky, for the Respondent.

Before:

Judge Fauver

Complainant brought this action under § 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq., alleging a discriminatory discharge.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
and further findings in the Discussion below:
FINDINGS OF FACT
1. Respondent operates a coal washing facility, known as
No. 25 Preparation Plant, where it processes coal for sale or use
in or substantially affecting interstate commerce.
2.
Complainant was employed at the plant as a bulldozer
operator from October, 1988, until July 17, 1989, when he was
discharged.
3. His principal duty was to push piles of coal into
feeders at the bottom of tall stacking tubes.
Coal was carried
by conveyor belts into the stackers, 20 to 25 feet high, each
having windows at various levels. The coal would fall through
the stacker to the lowest window and from there out onto a cone
shape pile that would' form on the ground.
Feeders at the base of
the stacker vibrated the material through a hopper and onto a
conveyor belt leading to the washing plant.

2130

6.
Ordinarily, a cone of coal would form at the base of a
stacker and above the feeder, so that the system would mechanically feed the coal through the hopper onto the conveyor belt to
the washer.
The bulldozer operator was there to push coal into
the feeders as needed, g.g., when there was spillage or when the
cone of coal on the ground had not accumulated enough for the
system to feed itself.
7. At times the lower windows or the chutes inside the
stacker would become clogged by wet coal or mud.
Instead of
falling from the. lower windows and directly onto the coal pile,
the coal would then fall from the higher windows, creating a
potentially dangerous situation for the bulldozer operator.
Because the bulldozer operated at irregular and steep angles,
falling coal could strike its windows, headlights, and other
equipment.
Depending upon the angle of exposure of the bulldozer, the height and quantity of falling coal, the bulldozer
operator could be severely injured by falling coal, g.g:~ if coal
broke a window and either entered the cab or sent flying glass
into the cab.
8. When a stacker became clogged, it was necessary to
unclog the material. This was accomplished by shooting high
pressure water into the stacker from the top, or if this did not
work, by suspending a worker down into the stacker on ropes, to
dig out the obstruction manually.
9.
In mid-June, 1989, Complainant was operating a bulldozer, when the stacker became clogged.
Coal was falling from
the top windows striking the bulldozer, beating against its
windows.
Complainant was concerned for his safety, and used his
CB to call the control room operator in the plant.
He reached
Tim Miller and told him about the safety problem and asked him to
ask Complainant's foreman, Henry Halcomb, what he should do.
Miller did so, and told Complainant that Halcomb said, "Go ahead
and run it." Tr. 14. Then falling coal broke a window next to
Complainant. He became more frightened and told Miller, "Tell
him [Halcomb] that this dozer is getting the windows knocked out
of it and we don't have enough coal to push." Miller spoke to
Halcomb again, and told Complainant that Halcomb said, "Go ahead
and run it." Complainant continued to run the bulldozer.
Then
its lights went out, because falling coal broke the lighting
wires.
He called Miller again, to tell him the wires were
broken, and asked him what Halcomb wanted him to do.
Miller told
Complainant that Halcomb said if he did not want to run it, park
it, go home, and he would have a mechanic fit it.
This would
have meant a loss of pay.
Complainant pulled the bulldozer out
of the coal, fixed the lights, drove back, and continued pushing
coal. When asked at the hearing why he repaired the lights and
resumed pushing coal, Complainant testified, "Henry [Halcomb] was
in a hurry to push coal. He wanted me pushing coal." Tr. 14.

2131

10. Later in June, 1989, Complainant complained to the
foreman, Halcomb, face to face, stating that he was putting his
life in danger by having him push coal when coal was striking the
bulldozer. The foreman replied that Complainant's job was to
push coal.
11. During the time that Halcomb was Complainant's foreman
on the second shift, about 2 months, Halcomb harassed Complainant
in many ways. He made him the butt of joking and teasing over a
married woman who worked in a nearby grocery store, he ordered
him to make coffee, which was not his job, he denied him a lunch
break a number of times, and once when Complainant was accompanied in his truck by a boy who got fishing bait for him,
Halcomb, mistaking the boy for a girl, asked Complainant who was
the girl in his truck, implying he was seeing a girlfriend
although he was married. Complainant complained to the mine
superintendent about Halcomb's harassment.
12. On July 14, 1989, the incline belt broke, shutting down
plant operations. The plant superintendent supervised the job of
installing a new belt section. Everyone on the crew was allowed
a lunch break except Complainant. The superintendent told
Complainant that Halcomb would have someone relieve him for
lunch, but when Complainant called Halcomb, about 1-1/2 hours
before the end of the shift, for relief so he could have lunch, 1
Halcomb told him, "It's too close to quitting time now, you don't
get to eat." Tr. 184-185.
13. The July 14 incident
the latest of many -- took
Complainant to a turning point in his relationship with his
foreman.
The next day, Saturday, June 15, Complainant arrived
early and went to the superintendent's office, hoping to lay out
his complaints about Halcomb's mistreatment of him, including
endangering him in the operation of the bulldozer, harassing him,
embarrassing him, and discriminatorily denying him lunch breaks.
The superintendent was not there.
14. Complainant then went to the training room, where the
employees usually gathBred before beginning their workshift.
This was shortly before 3:00 p.m., the starting time of Complainant's shift. Complainant met Halcomb there and told him
that his harassing of him would have to stop, and that he was
going to see the superintendent about Halcomb's mistreatment of
him. He told him about being denied a lunch break the night
before. Halcomb said the superintendent had supervised the crew
that night, and any complaint about lunch should be made to the
1 A bulldozer was needed whenever the stackers were in
operation.
Complainant could not take a lunch break unless
Halcomb sent a bulldozer operator to relieve him.

2132

superintendent, not Halcomb. After the crew members left the
room, Complainant told Halcomb:
"· • • [t]hat this putting me in
a unsafe condition was going to stop, and he said it wasn't
unsafe. That's when I told him that I was going to have • . . to
let the Mine Safety and aealth Administration find out what he
was doing." Tr. 35. Halcomb told him not to threaten him.
Complainant told Halcomb about the coal striking his dozer and
that Halcomb had told him to keep pushing coal. Halcomb said
that was "hearsay," and he had not said that. Complainant said,
"What do you mean you didn't say that?" and added, "I told that
control room operator what was going on and he told you, then he
come back and told me what you said." Halcomb repeated, "That's
hearsay." Complainant said, "That can't be hearsay, it's his
job." Halcomb said, "No, it didn't happen that way," and Complainant called him a "lying son of bitch." Tr. 24. Complainant
immediately apologized:
"· •• [J]ust when the words left my
mouth, I said, 'I apologize,' I said, 'I shouldn't have said
that. ' He said, 'It's already been said now • • .
"' -Tr. 24.
Halcomb then told Complainant, "You can go to the house"
(Tr. 27), meaning that he was suspended without pay, and that he
would have to see the superintendent the following Monday.
15. Halcomb then contacted the plant superintendent, Roger
Cox, concerning the incident.
16. Roger Cox is an ordained minister who held two positions, i.g., mine superintendent and pastor of a local church.
17. Halcomb was aware of, or could reasonably expect, the
superintendent/minister's sensitivity to profane language and his
philosophy of supporting his supervisors. Halcomb shaped his
factual account to Cox concerning the argument with Complainant,
to injure Complainant in Cox's eyes. The account that Halcomb
gave Cox was that (A) Complainant cursed him in front of the
crew, and (B) Complainant called Halcomb a "God dam son of a
bitching liar." Halcomb's account was inaccurate as to points
(A) and (B) in that: he and Complainant were alone when Complainant swore at him and in that Complainant called Halcomb "a
lying son of bitch," not "a God dam son of a bitching liar."
Halcomb omitted the fact that Complainant had immediately apologized to Halcomb. Halcomb told Cox that, in the argument Complainant complained about losing a dinner break on Friday, and
complained about danger in being required by Halcomb to run the
bulldozer under falling coal. Halcomb did not tell Cox that
Complainant had said he was going to complain to MSHA concerning
his safety complaints about Halcomb.
18. On Monday morning, July 17, 1989, Complainant saw Cox,
who "asked him what the problem was and why the incident took
place'' (Tr. 46). Cox testified that Complainant told him that
Halcomb was endangering his life by forcing him to push coal

2133

under falling coal, that he was harassing him, denying him lunch
breaks, and tbat Complainant "couldn't take it anymore." Tr.
45-46.
Cox asked Complainant whether he had sworn at Halcomb and
Complainant said he had. Cox fired him at that meeting.
19. To Cox, cursing a foreman in front of his crew was a
dischargeable offense. He testified that, if Halcomb and Complainant had been alone, "just between him and Henry, it could
have probably been resolved," that is, without discharging
Complainant. Tr. 65.
20. Cox did not question any of the crew members about the
incident before he fired Complainant. He did not know that
Complainant and Halcomb were alone when Complainant swore at him.
21.
Cox had known Complaint for 8 or 9 years, had hired him
in another plant where Cox worked, and hired him to work_for
Respondent.
He regarded him as a good employee, and had no
reason to discipline him before the incident on July 15, 1989.
DISCUSSION WITH FURTHER FINDINGS
Section 105(c) of the Act 2 was enacted to ensure that
miners will play an active role in the enforcement of the Act by
protecting them against discrimination for exercising any of
. their rights under the Act. A key protection for this purpose is
the prevention of retaliation against a miner who brings to an
2

Section 105(c) (1) 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 or because such miner, representative of miners or applicant
for employment has instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is
about to testify in any such proceeding, or because of the
exercise by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right
afforded by this Act."

2134

operator's attention or ~he attention of MSHA hazardous conditions in the.workplace.
.
·
Generally, in order to establish a prima facie case of
discrimination under § 105(c) of the Mine Act, a miner must prove
that (1) he or she engaged in protected activity and (2) the
adverse action complained of was motivated in any part by that
activity.
Consolidation Coal Company, 2 FMSHRC 2768 (1980),
rev'd on other grounds sub nom. Consolidation Coal Company v.
Marshall, 663 F.2d 1211 (3d Cir. 1981); Hecla-Day Mines
Corporation, 6 FMSHRC 1842 (1984); Phelps Dodge Corp., 3 FMSHRC
2508, 2510-2511 (1981), rev'd on other grounds sub nom.
Donovan
v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no
way motivated by protected activity.
If an operator cannot rebut
the prima facie case in this manner it may nevertheless affirmatively defend by proving that it was also motivated by €he
miner's unprotected activities and would have taken the adverse
action on those grounds alone.
The operator bears the burden of
proof with regard to the affirmative defense.
Haro v. Magma
Copper Company, supra. The ultimate burden of persuasion does
not shift from the complainant. United Castle Coal Company,
supra.
See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983);
and NLRB v. Transportation Management Corporation, 462 U.S. 393
(1983) (where the Supreme Court approved the NLRB's virtually
identical analysis for discrimination cases arising under the
National Labor Relations Act).
Applying these principles, I find that Respondent violated
105(c) of the Act by discriminatory adverse action, i.g.,
suspending Complainant without pay on July 15, 1989, and discharging him on July 17, 1989.
§

Complainant's safety complaints to his foreman, about beirig
required to operate a bulldozer under falling coal, were protected activities.
These included his safety complaints through
the control room operator to his foreman in mid-June, 1989, his
face-to-face complaint to his foreman after that, in June, 1989,
and, on July 15, 1989, his reiteration of these complaints to his
foreman and his statement that he would complain to MSHA about
the foreman's endangering him by having him run the bulldozer
under falling coal.

3

S. Rep. No. 95-181, 95th Cong., 1st Sess., at 35-36
(1977), U.S. Code Cong. & Admin. News 1977, pp. 3401, 3435-3436,
reprinted as Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess. Legislative History of the
Federal Mine Safety and Health Act of 1977 (1978).

2135

The foreman's suspension of Complainant without pay on
July 15, 1989., was adverse action by management and led to
further adverse action. I find that the foreman was motivated in
part to retaliate against Complainant because of his safety
complaints and his statement that he intended to complain to MSHA
about his safety complaints against the foreman. The foreman's
discriminatory conduct against Complainant included:
(1)

suspending him without pay; and

(2)

giving a distorted factual account of the incident
to the mine superintendent with the intention or
expectation of influencing the superintendent to
discharge complainant.

Halcomb's distorted version to the superintendent was that
Complainant had called Halcomb a "God damn son of a bitching
liar" in front of his crew. Complainant did not use a religious
epithet, or the language attributed by Halcomb, and he swore at
Halcomb (calling him "a lying son of a bitch") when they were
alone, and immediately apologized. Halcomb's account to the
superintendent omitted the fact that Complainant immediately
apologized to Halcomb and the fact that Complainant said he would
report Halcomb's unsafe practices to MSHA.
Halcomb knew, or could reasonably expect, that the superintendent, who is a practicing pastor, would be offended by the
religious epithet he substituted for Complainant's actual
language, and that the superintendent would consider cursing a
foreman in front of his crew a dischargeable offense.
The impact of the foreman's distorted account to the mine
superintendent is clear from the superintendent's testimony:
(1)

The superintendent fired Complainant "for
insubordination and for cussing Mr. Halcomb out"
(Tr. 63).

(2)

The superintendent believed that Complainant
"called Henry these names in front of Henry's
people he.had to manage, and . • • it placed him
in a very bad position" (Tr. 63); "I think, you
know, you can't get any lower as far as wording is
concerned and the names he called him. It was
just very degrading to Henry as a foreman, or as a
man, and I don't think it left me any choice" (Tr.
44) •

(3)

Had the superintendent known that Complainant
swore at Mr. Halcomb when they were alone -- "just
between him and Henry, it could have probably been

2136

resolved," that is, without discharging
Complainant (Tr. 65) •
·
·
(4)

The superintendent did not know•that Complainant
had immediately.apologized to Mr. Halcomb.

The fact that the superintendent was deceived by the foreman
does not alter the fact that management, through its foreman,
took discriminatory action agairist Complainant that resulted in
his discharge.
I therefore hold that Respondent violated § 105(c) (1) of the
Act by suspending and discharging Complainant.
CONCLUSIONS OF LAW
1.

The judge has jurisdiction over this proceeding_.

2. Respondent violated § 105(c) (1) of the Act by·suspending
Complainant without pay on July 15, 1989, and by dis.charging him ·
on July 17, 1989.
3. Complainant is entitled to reinstatement with back pay,
interest, and his litigation costs, including a reasonable
attorney fee.
ORDER
WHEREFORE IT IS ORDERED that:
1. Respondent shall, within 30 days of this decision,
reinstate Complainant in its employment, at the same position,
pay, assignment, and with all other conditions and benefits of
employment that he would have received had he not been suspended
on July 15, 1989, and discharged on July 17, 1989, with no break
in service concerning any employment benefit or purpose.
2. Within 15 days of this decision, counsel for the parties
shall confer in an effort to stipulate the amount of Complainant's back pay, interest, and litigation costs, including a
reasonable attorney fee.
Such stiptilaticin shall not prejudice
Respondent's right to seek review of this decision.
If the
parties agree on the amount of monetary relief, counsel for
Complainant shall file a stipulated proposed order for monetary
relief within 30 days of this decision.
If they do not agree on
such matters, counsel for the Complainant shall file a proposed
order of monetary relief within 30 days of this decision, and
Respondent shall have 10 days to reply to it.
If appropriate, a
further hearing shall be held on issues of fact concerning monetary relief.

2137

3. This decision shall not be a final disposition of this
proceeding until a supplemental decision is entered on monetary
relief.

(,;/dJ_~ :=r~vvv

William Fauver
Administrative Law Judge

Distribution:
Michaels. Endicott, Esq., Ed Spencer's Law Offices, P.O.
Box 1176, Paintsville, KY 41240 (Certified Mail)
Timothy Joe Walker, Esq., Reece, Lang and Breeding, P.S.C., P.O.
Drawer 5087, London, KY 40745-5087 {Certified Mail)
/fb

2138

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

October 31, 1990

DUININCK COMPANIES,
Contestant

CONTEST PROCEEDING
Docket No. LAKE 90-126-R
Citation No. 3445314: 5/9/90

v.

KK003 Crushing Unit
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Mine ID 21-02845

ORDER OF DISMISSAL
Before:

Judge Merlin

This case is a notice of contest filed by the operator
seeking to challenge the issuance of a citation by an inspector
of the Mine Safety and Health Administration under section 104(a)
of the Federal Mine Safety and Health Act of 1977.
The citation was issued on May 9, 1990. The contest was not
received by the Commission until September 4, 1990. However, as
set forth in the order dated September 24, 1990, previously
entered herein, the contest was treated as filed on August 20,
1990, because that was the date of receipt indicated by the MSHA
stamp on the letter from operator's counsel. In its most recent
response the operator advises that its notice of contest was
received by the Solicitor on August 10, 1990. The photocopy of
the return receipt attached by the operator supports the date
given in its motion. ~-Acicordingly, the date of filing now is
accepted as August 10.
There still remains for determination the question whether
the contest was timely filed. In his answer the Solicitor moves
to dismiss on the ground that the contest was untimely. Unfortunately, the Solicitor cites neither applicable statutory
provisions nor relevant case law. This experienced Solicitor
knows better. However, timeliness clearly is in issue, and
therefore, the order of September 24 required the operator to
explain its position on the matter.
In its response the operator alleges that because it had been given an extension to abate
to August 15, it believed it had until then to file its notice of
contest.

2139

Section 105(d) of the Mine Act, 30 u.s.c.
in relevant part:

§

815(d), provides

If, within 30 days of receipt thereof, an operator
of a coal or other mine notifies the Secretary that he
intends to contest the issuance or modification of an
order issued under section 104, or citation or a notification of proposed assessment of a penalty issued
under subsection (a) or (b) of this section, or the
reasonableness of the length of abatement time fixed in
a citation or modification thereof issued under section
104 * * * the Secretary shall immediately advise the
Commission of such notification and the Commission
shall afford an opportunity for a hearing * * * *
A long line of cases going back to the Interior Board of
Mine Operation Appeals has held that cases contesting the_
issuance of a citation must be brought within the statutorily
prescribed 30 days or be dismissed.
Freeman Coal Mining Corporation, 1 MSHC 1001 (1970); Consolidation Coal Co., 1 MSHC 1029
(1972); Island Creek Coal Co. v. Mine Workers, 1 MSHC 1029
(1979); aff'd by the Commission, 1 FMSHRC 989 (August 1979); Amax
Chemical Corp., 4 FMSHRC 1161 (June 1982); Rivco Dredging Corp.,
10 FMSHRC 889 (July 1988); See Also, Peabody Coal Co., 11
FMSHRC, 2068 (October 1989); Big Horn Calcium Company, 12 FMSHRC
463 (March 1990) ; Energy Fuels Mining Company, 12 FMSHRC 1484
(July 1990). The time limitation for contesting issuance of
citations must therefore, be viewed as jurisdictional.
The notice of contest in this case was filed three months
after the citation was issued which was two months late. The
Mine Act and applicable regulations afford no basis to excuse
tardiness because the operator and its counsel mistakenly believe that the time for abatement extends the time to challenge
the citation. Nor does relevant case law suggest support for
any such approach. Accordingly, the operator's argument cannot
be accepted.
The operator shou-ld be aware, however, that the issues it
seeks to raise here may be litigated in the penalty suit when
MSHA proposes a monetary assessment.
In light of the foregoing, it is ORDERED that this case be,
and is hereby, DISMISSED.

Paul Merlin
Chief Administrative Law Judge

2140

ADMINISTRATIVE LAW JUDGE ORDER

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

April 21, 1989

CIVIL PENALTY PROCEEDING

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

Docket No. VA 89-20-M
A. C. No. 44-00071-05511

v.

Loudoun Quarries

CHANTILLY CRUSHED STONE,
INC. I
Respondent
DECISION
Before:

~.PPROVING SETTLEMENT"·'
ORDER TO PAY

Judge Merlin

This case is a petition for the assessment of civil
penalties filed by the Secretary of Labor against Chantilly
Crushed Stone, Inc., pursuant to the Federal Mine Safety and
Health Act of 1977.
The Solicitor has submitted a motion to
approve settlement of the two violations involved in this case.
The penalties were originally assessed at $20,000 and the
proposed settlement is for $20,000.
The two subject citations were issued for violations of the
Act after an investigation of a double fatality.
The fatalities
occurred when two miners who were trying to free a blockage of
materials in a crusher-run bin became engulfed by the materials
and were suffocated.
Citation No. 2852778 dated July 7, 1988, and modified on
July 28, 1988, was 1siued for a violation of 30 C.F.R.
§ 56.16002(c} recites as follows:
"A double fatal accident occurred on
7-5-88 at 10:55 AM when the primary crusher
operator and a Euclid haul truck driver was
engulfed in crushed material in a bin.
These
two employees and a thiro employee was [sic]
working to dislodge bridged mat2rial insioe
the bin without using safety belts and lines
and the lines attended by another person.
Safety belts and lines were provided by the
c 011~p any. "
30

C.F.~.

§

5G.1G002(c)

p~oviJ2s:

2141

(c) Where persons are required to enter
any facility listed in this standard for
maintenance or inspection purposes, ladders,
platforms, or staging shall be provided. No
person shall enter the facility until the
supply and discharge of materials have ceased
and the supply and discharge equipment is
locked out. Persons entering the facility
shall wear a safety belt or harness equipped
with a lifeline suitably fastened. A second
person, similarly equipped, shall be
stationed near where the lifeline is fastened
and shall constantly adjust it or keep it
tight as needed, with minimum slack.
Citation No. 2852779 dated July 7, 1988, and modified on
July 28, 1988, was issued for a violation of 30 C.F.R.
§ 56.16002(a)(l) recites as follows:
"A double fatal accident occurred on
7-5-88 at 10:55 AM when the primary crusher
operator and a Euclid haul truck driver was
engulfed in crushed material in a bin. A
safe access was not provided to this bin
where the hang ups that occurs frequently in
this bin could safely be disloged [sic]."

30 C.F.R. § 56.16002(a)(l) provides:
(a) Bins, hoppers, silos, tanks, and
surge piles, where loose unconsolidated
materials are stored, handled or transferred
shall be
Cl) Equipped with mechanical devices or
other effective means of handling materials
so that during normal operations persons are
not required to enter or work where they are
exposed to entrapment by the caving or
sliding of materials; and

*

*

*

*

*

The MSHA Accident Investigation Report describes the
accident in pertinent part as follows:
Duane Brady, primary crusher operator,
and Lester Cross, Euclid operator, reported
for work on July 5, 1988, at 6:00 am, their
regular star ting time. 1'he daily routine
proceeded without i~cident until approximately 10:30 am, when Duane Brady * * * discover2d a blockage in the crusher-run bin

2142

where the material had completely filled the
bin to its capacity of approximately 50 tons.
A blockage in this bin was not unusual,
especially when the material being processed
contained an abundant amount of clay as was
the case the morning of the accident. This
bin was known to plug as many as two or three
times a day.
* * *

* * * The three men [including
Michael Smith, another Euclid driver, who had
joined Brady and Cross] evaluated the situation and agreed to shovel off the top of the
mounded material so they would have room to
work inside the bin on the blockage. They
assumed the blockage was close to the discharge port of the bin and never suspected a
bridged-over void in the material. As the
three men stood on the material, Mr. Brady
suggested they get their safety belts and
lines before starting. One of the other two
men suggested they dig awhile before descending to the storage shed to get the belts and
lines. About th~ this time, Kenneth
McSheffery, Euclid operator, arrived on the
scene to assist the other three in clearing
the blockage. The four men commenced to work
as two teams--one team shoveled while the
other team rested.
After successfully
leveling off the top, they dug a hole approximately 2 feet deep and 2 feet in diameter in
what they determined to be the center of the
bin. On completion of the hole, Duane Brady
and Lester Cross began pushing a 3/4-inch
diameter by 10-foot long section of pipe down
through the material toward the blockage.
They had difficulty forcing the pipe through
the materi~l so they struck it with a shovel~
thus, loosening the material near the bin
draw point.
_
At this time, Bill Breitschwerdt, foreman, arrived at the scene.
He had been in
t~e off ice working on time cards and did not
kn-ow the extent of the blockage.
He traveled
up the walkway and stood beside the shaker
directly above the bin.
He could not see
inside the bin from this location, but he
talked to the men. * * ·k

* * * Messrs. Brady and Cross b.~go.n
moving the pipe in a ci:ccular motion. ~ir.

2143

Smith stated he and Mr. McSheffery were
resting on the side. Mr. Smith was standing
in the corner and Mr. McSheffery was sitting
on an I-beam. Mr. Breitschwerdt remained on
the platform at the bottom of the bin to see
if the blockage was caused by something
protruding through the opening.
The blockage suddenly broke free and
engulfed the two men as they were pulled down
into the bin by the flowing material. * * *

* * * Messrs. Brady and Cross
(victims) were completely covered by approximately 35 tons of material which remained in
the bin.
*

*

*

*

*

This bin was not provided with any type
of vibrator or mechanical device to eliminate
these plug-ups. Safety belts and lines were
provided and located in a nearby storage shed.
The crusher operator who controlled the
operation of the plant had a safety belt and
line in his control room.
The employees
stated the crusher operator always utilized
his belt and line anytime he went into the
bin or worked around the crusher.
The established company policy stated
that employees working in a bin or hopper or
in danger of falling shall wear a safety belt
with a line and be tied off.
This property
was exempt from MSHA enforcement of Part 48
training requirements~ however, each of the
victims received more than the required 24
hours of "New Miner" training in 1987. Mr.
Brady received 27 hours of training, and
Mr. Cross received 26-t hours of "New Miner"
training.
The ~ccident Investigation Report offered the following
conclusions:
The accident occurred as a result of the
employees entering the bin, without wearing
safety belts and lines and being tied off, in
an attempt to dislodge plugged-up material.
A combination of e~rors made by mine
management and employees resultert in the
death oE two employec~s and the entr2p;r,2nt of

2144

a third employee. Three of the four
employees involved had performed the task of
unclogging this particular bin many times in
the past.
Statements revealed normal procedure called for employees to get their
safety belts and lines before entering the
bin.
However, the bin was filled above
normal capacity and instead of climbing down
into the bin, the employees climbed up on the
piled material to shovel off the excess
material so it was level with the top of the
bin.
The employees discussed how to go about
unplugging it and decided to shovel the
excess material level with the top of the bin
before getting the necessary safety equipment.
All involved failed to recognize the
possibility of the existing void in the lower
portion of the bin. The mine foreman had
verbal contact with the employees, but failed
to ask if they were tied off with safety
belts and lines as was their normal
procedure.
Management was aware of the problems
with plug-ups in this bin requiring employees
to enter it on a regular basis to dislodge
the material. Management did not equip this
bin with any type of mechanical device or
engineering controls to eliminate the need
for employees to enter this bin to clear
plug-ups as a new facility was under
construction.
In light of the foregoing, I conclude that the violations
resulting from the failure to wear safety belts and from inadequate bin design represent the ultimate in gravity since there
was a double fatality.
With respect to negligence in the safety belt violation, the
Solic:i tor in his sett-lement motion advises that the decedents'
failure to wear safety belts resulted in their fatalities.
According to the Solicitor, the operator and its agents were
responsible for the enforcement of this and all other MSHA
standards. · Hourly employees- who were interviewed during the investig~tion; knew that the operator insisted on safety belts with
tie off lanyards being used when they went into the bin.
The
decedent crusher operator knew that safety belts and lanyards
were required and spoke to that effect while in the bin.
The
decedent Buclid driver also apparently knew of the rule.
Howev~r, th9 miners made a conscious decision not to wear safety
bel~s and lanyards.
The Solicitor further states that the foreman had no actual ~nowledg8 that safety b~lts and lanyar<ls were
not ~~in3 used.
He was in the min~ office when th2 rni~2rs

2145

entered the bin area and when he subsequently arrived on the
scene, he climbed the nearest walkway to the double deck screens
above the bin to inquire on their progress.
It was not possible
to observe the activities in the bin. from that location.
It is
also clear that the operator's employees had a very good working
relationship i.e., helping each other out to get the job done.
In the Solicitor's view, the positive attitude between the
employees and the foreman may have provided the foreman with a
false sense that there was no need to ask the miners if they were
using safety belts believing that, of course, they would be.
I accept the Solicitor's representation that the decedent
miners were negligent in not wearing safety belts before they
began to dig out the bin.
It is clear from the record that the
operator had trained these individuals and had a policy known to
them which required the wearing of safety belts under these circumstances.
Therefore, I do not believe the negligence of the
decedents who were rank and file miners can be imputed tQ the
operator.
Southern Ohio Coal Company, 4 FMSHRC 1459 (1982).
However, the record also indicates that the foreman was negligent.
The Solicitor may well be correct in stating that the mutual
respect between the miners and the foreman gave the foreman a
false sense of security so that he did not ask the miners if they
were using safety belts.
But this does not exculpate either the
foreman or the operator.
Confronted with a situation where the
men under his supervision were working in a very dangerous
situation, the foreman should have made sure that safety belts
were being used and he was negligent for not doing so.
Also the
foreman should have located himself in a place where he could
have seen what was going on.
Indeed, it does not appear that the
foreman had input into the decisions about how to proceed to
alleviate the blockage.
It was left to the miners.
In short,
the foreman did not adequately supervise.
Under such circumstances the foreman's negligence which left his workmen exposed
to the existence of harm which was foreseeable, is attributable
to the operator who placed the foreman in his position of
responsibility.
Wilmot Mining Company, 9 FMSHRC 684 (1987)
affirmed in part, reversed in part, Case No. 87-3480 (6 Cir.
5/17/88 unpublished); Naaco Mining Company, 3 FMSHRC 848 (1981).
With respect to the bin, the Solicitor states that the
operator's failure to act upon its knowledge that the bin was
plugging frequently, also was a cause of the accident.
According
to the Solicitor, if the operator's engineering efforts had been
focused upon an improved bin design, rather than upon construction of a ne~ plant, the events which culminated in the
fatalities might not have occurred.
I find persuasive the Solicitor's representations and analysis with respect to the bin.
Plugging was not novel or unexpected.
On the contrary, it was a
recurring problem known to the operator who should have attended
to it by creation and installatiori of a device which would have
eliminated such plu3-ups.
The operator must, th2refore, b~ found
negligent with respect to this violation.

2146

Finally, the Solicitor advises that the operator is medium
sized with a small history of prior violations and that the payment of the recommended penalties will not adversely affect its
ability to iemain in business.
Upon review of this matter I have determined that the
recommended settlements are appropriate under the criteria of
section llO(i) of the Act.
In particular, imposition of the
statutory maximum for each violation is warranted in view of the
extreme gravity and the existence of fault.
In this connection,
it is also noted that the $10,000 penalty maximum ·has not been
changed in the twenty years since adoption of the Federal Mine
Health and Safety Act of 1969, Pub. L. No. 91-173, 83 Stat. 742,
30 u. s. C. § 801 et seq.
In light of the foregoing, the recommended settlements are
APPROVED and the operator is ORDERED TO PAY $20,000 within 30
days from the date of this decision.

Chief Administrative Law Judge
Distribution:
Bdward H. Fitch, Esq., Office of the Solicitor, U. s. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified
Mail)
Ms. Rita G. Regino, Division of Chantilly Crushed Stone, Inc.,
Box S, Chantilly, VA 22021 (Certified Mail)
/gl

2147

·

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

22041

SEP 28 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
ALONZO WALKER,
Complainant

DISCRIMINATION PROCEEDING
Docket No. SE 90-86-DM
MSHA Case No. MD 90-03
Selma Mine

v.
DRAVO BASIC MATERIALS COMPANY,
INC.,
AND
R & S MATERIALS, INC.,
Respondents
ORDER
Before:

Judge Fauver

On August 10, 1990, I issued a decision finding that Alonzo
Walker was discharged by R & S Materials, Inc., on January 10,
1990, in violation of section 105(c) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seq. The parties were
given additional time to submit proposed findings and conclusions
on the issues of liability of Dravo Basic Materials Company,
Inc., as a successor in interest, the civil penalty to be
assessed, and the relief to be granted to Mr. Walker.
The parties have filed a proposed settlement of these
remaining issues.
I find the settlement to be consistent with
the record and the purposes of the Act.
WHFREFORE IT IS ORDERED that:
1.

The joint motion to approve settlement is GRANTED.

2. Within 30 days of this order, Alonzo Walker will be paid
backpay from January 10, 1990, through April 22, 1990, in the
amount of $5,890.63, plus $75.00 in interest. Such payment will
be a full and complete accord and satisfaction of all monetary
claims by Mr. Walker against Dravo and R & s arising out of his
discharge on January 10, 1990. Dravo and R & s may allocate
between themselves the responsibility for paying such backpay and
interest.

2148

3. Alonzo Walker will be reinstated by Dravo to the
position of dragline operator at the Selma Mine at the same rate
of pay as he earned on January 10, 1990, i.g., $6.50 an hour.
Reinstatement will occur at a date to be agreed upon by Dravo and
Mr. Walker, but no later than October 29, 1990. Until such
reinstatement, economic reinstatement of Mr. Walker as provided
by the previous order of temporary reinstatement will continue.
4.
Dravo acknowledges that it will consider, and is ordered
to consider, the discharge of Mr. Walker on January 10, 1990, as
null and void and of no effect. The record of such discharge
will not be considered in any way in any future employment
decisions, including but not limited to promotions, pay
increases, and layoff, nor in any disciplinary proceedings
concerning Mr. Walker.
5. Within 30 days of this order, Dravo and R & S shall pay
a civil penalty of $200 for the violative discharge of -Mr. Walker.
Dravo and R & s may allocate between themselves the
responsibility for paying such civil penalty.
6. Upon compliance with this order, the Secretary shall
file a satisfaction of order, signed by counsel for the Secretary
and by Alonzo Walker.
7. The decision of August 10, 1990, and this order shall
not become a final disposition of this proceeding until a
supplemental decision is issued.

u);JJ._:. 3-'IW VeA-

wi11iam Fauver
Administrative Law Judge

Distribution:
William Lawson, Esq., Office of the Solicitor, U.S. Department of
Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL 35203
(Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, P.C., USX Tower, 57th
Floor, 600 Grant street, Pittsburgh, PA 15219 (Certified Mail)
Harold A. Bowron, Jr., Esq., Balch and Bingham, 1710 North Sixth
Avenue, P.O. Box 306, Birmingham, AL 35201 (Certified Mail)
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