APRIL 1991
COMMISSION DECISIONS
04-01-91
04-16-91
04-17-91

Amos Hicks v. Cobra Mining, Inc., et al.
Michael P. Damron v. Reynolds Metal Co.
David Hatfield v. Colquest Energy, Inc.

VA
89-72-D
CENT 89-131-DM
SE
90-122-D

Pg. 523
. 535
Pg. 544

CENT 88-126-D
CENT 90-104
CENT 90-105
CENT 90-114
CENT 90-116
CENT 90-117
CENT 90-120
CENT 90-128
CENT 90-131
CENT 90-53
PENN 88-284-R
KENT 90-398
KENT 90-403
VA
91-47-R
KENT 90-363
CENT 90-124-DH

Pg. 549
• 552
Pg. 558
Pg. 559
Pg. 560
Pg. 562
Pg. 564
Pg. 566
Pg. 568
Pg. 573
Pg. 574
Pg. 576
Pg. 584
Pg. 592
. 648
Pg. 649

CENT 90-167-DM
KENT 90-59-D
KENT 90-107
CENT 90-25
WEVA 91-72-D
KENT 91-12

Pg. 666
Pg. 670
Pg. 697
698
Pg. 703
Pg. 704

WEVA 91-65
WEST 91-44
WEVA 90-315-D
WEVA 91-43

Pg. 711

ADMINISTRATIVE LAW JUDGE DECISIONS
04-01-91
04-01-91
04-01-91
04-01-91
04-01-91
04-01-91
04-01-91
04-01-91
04-01-91
04-01-91
04-01-91
04-03-91
04-03-91
04-03-91
04-04-91
04-09-91
04-16-91
04-19-91
04-19-91
04-26-91
04-29-91
04-30-91

Stenson Begay v. Liggett Industries, Inc.
Pittsburg & Midway Coal Mining Co.
Pittsburg & Midway Coal Mining Co.
Pittsburg & Midway Coal Mining Co.
Pittsburg & Midway Coal Mining Co.
Pittsburg & Midway Coal Mining Co.
Pittsburg & Midway Coal Mining Co.
Pittsburg & Midway Coal Mining Co.
Pittsburg & Midway Coal Mining Co.
Pittsburg & Midway Coal ':i1ining Co.
Rochester & Pittsburgh Coal Company
Beech Fork Processing, Inc.
Pyro Mining Company
Island Creek Coal Company
J & R Coal Company, Inc.
Sec. Labor for Richard Roethle v. Phelps
Dodge Corporation
Cody v. Texas Sand & Gravel Co.
Ricky Hays v. Leeco, Inc.
JED Mining Company, Inc.
Pittsburg & Midway Coal Mining Co.
Charles M. Lapoe v. Eastern Assoc. Coal Corp.
Pyro Mining Company

ADMINISTRATIVE LAW JUDGE ORDERS
04-04-91
04-15-91
04-26-91
04-30-91

Hobet Mining, Inc.
Cyprus-Plateau Mining Corp.
Michael E. Holland v. Consolidation Coal Co.
Consolidation Coal Company

. 719

. 729
Pg. 748

APRIL 1991
Review was granted in the following cases during the month of April:
Secretary of Labor, MSHA v. Mar-Land Industrial Contractor, Inc., Docket No.
SE 90-117-M. (Judge Weisberger, March 6, 1991)
Secretary of Labor, MSHA v. Drummond Company, Inc., Docket Nos. SE 90-125,
etc. (Judge Merlin, March 6, 1991)
Secretary of Labor, MSHA v. Drummond Company, Inc., Docket No. SE 90-126.
(Judge Merlin, March 6, 1991)
Secretary of Labor, MSHA v. Ideal Cement Company, Docket No. WEST 88-202-M.
(Judge Morris, March 6, 1991)
Gatliff Coal Company v. Secretary of Labor, MSHA, Docket No. KENT 89-242-R,
etc.
March 8, 1991),
Secretary of Labor, MSHA v. Zeigler Coal Company, Docket No. LAKE 91-2.
(Judge Merlin, March 12, 1991)
of Labor, MSHA v. Texas Utilities r1ining Company, Docket No.
CENT 91-26.
Merlin, March 12, 1991)
Secretary of Labor, MSHA v. Utah Power & Light Company,
Docket Nos. WEST 90-320, etc. (Interlocutory Review of
March 20, 1991 Order)

Division,
Lasher's.

Labor" MSHA v, Bobet Mining, Inc., Docket No. WEVA 91-65.
Rul
of Judge Fauver 1 s April 4, 1991 Order)
Secretary of Labor, MSHA v, James Roger Bell, Robert V. Swindall and Marion
Rowland, Docket Nos. VA 90-53, etc. (Interlocutory Review of Judge
Broderick's
7, 1991 Order)
Review was denied in the fol

Arnold

the month of

il:

v,
Elk Creek Coal Company, Docket No. KENT 89-147-D.
Melick, March 19, 1991)

COM...M.ISSION DECISIONS

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

April 1., 1991

AMOS HICKS
v.
COBRA MINING, INC.,
JERRY K. LESTER, and
CARTER MESSER

BEFORE:

Docket No. VA 89-72-D

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

BY THE COMMISSION:
This discrimination proceeding arises from a complaint of retaliatory
discharge by Amos Hicks against Cobra Mining, Inc. and certain of its officers
filed pursuant to section lOS(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et gg.. (the "Mine Act"). Hicks alleges that he was
discharged on May 11, 1989, in retaliation for numerous and various safety
complaints made to his section foreman, Garnett Sutherland, at Cobra's No. 1
Mine located in Shortt Gap, Virginia. After investigation of Hicks' charges,
the Secretary filed a complaint with the Commission under section 105(c)(2) of
the Mine Act. 1
Section 105(c)(2) provides as follows:
Any miner or applicant for employment or representative of miners who believes that he has been
discharged, interfered with, or otherwise
discriminated against by any person in violation of
this subsection may, within 60 days after such
violation occurs, file a complaint with the Secretary
alleging such discrimination. Upon receipt of such
complaint, the Secretary shall forward a copy of the
complaint to the respondent and shall cause such
investigation to be made as he deems appropriate.
Such investigation shall commence within 15 days of
the Secretary's receipt of the complaint, and if the
Secretary finds that such complaint was not
frivolously brought, the Commission, on an expedited
basis upon application of the Secretary, shall order
the immediate reinstatement of the miner pending final

order on the complaint.

If upon such investigation,

the Secretary determines that the provisions of this
subsection have been violated, he shall immediately

523

After a hearing on the merits was held on January 3, 1990, Commission
Administrative Law Judge Avram Weisberger issued a March 22, 1990 decision in
which he found that Hicks had established a prima facie case of
discrimination, but that Hicks had not overcome Cobra's affirmative defense
that it would have discharged Hicks in any event for certain unprotected
activity. Accordingly, the judge dismissed the complaint. The Secretary
elected not to continue
Hicks, and Hicks filed, pro se, a
petition for discretionary review, which the Commission granted by order
issued May 1, 1990. For the reasons that follow, we vacate and remand the
judge's decision.
I.

Factual and Procedural Background

Amos Hicks is a miner with 15 years experience in the coal industry. In
July of 1987 he was hired by Cobra Mining Company when Cobra took over the
lease of the ~o. 1 Mine from Far West Coal Company, Hicks' employer since
1981. Tr. 13-17. While Hicks was employed by Cobra, it was owned by Jerry
Lester, Carl ~esser and Charles Davis. David Payne held the position of mine
superintendent. Garnett Sutherland was section foreman on the number one
section where Hicks worked as a shuttle car operator on the day shift. Tr,
132-143, 305.
It is undisputed, and the judge so found, that during the nearly two
years during which Hicks worked for Cobra prior to his discharge in May of
1989, he made frequent
complaints to both Superintendent Payne and
Foreman Sutherland. 12 FMSHRC 564-565. Hicks' complaints centered on four
file a complaint with the Commission, with service
upon the alleged violator and the miner, applicant for
employment, or
of miners alleging such
discrimination or interference and propose an order
granting
relief. The Commission shall
afford an opportunity for a hearing; (in accordance
with section 554 of title 5, United States Code, but
without regard to subsection (a)(3) of such section)
and thereafter shall issue an order, based upon
findings of fact,
, modifying, or vacating
the Secretary's proposed order, or directing other
appropriate relief. Such order shall become final 30
days after its issuance. The Commission shall have
authority in such proceedings to require a person
committing a violation of this subsection to take such
affirmative action to abate the violation as the
Commission deems appropriate, including, but not
limited to, the
or reinstatement of the miner
to his former position with back pay and interest.
The complaining miner, applicant, or representative of
miner may present additional evidence on his own
behalf during any hearing held pursuant to this
paragraph.
30 U.S.G. 815(c)(2).

524

specific areas:
(1)

That temporary roof support was not always installed
in advance of roof bolting in the No. 1 Mine. In
particular Hicks complained that when the bolting crew
encountered higher than usual roof not within reach of
the automated temporary roof support (ATRS) system,
they often proceeded to bolt rather than sending out
for timbers and other shoring materials to supplement
the undersized temporary roof jacks. Tr. 20, 24, 194,
250.

(2)

That there was inadequate and poorly-designed
ventilation in the face area resulting in section crew
members being exposed to excessive levels of dust.
This condition was exacerbated during a brief period
in
1989, when two continuous mining machines
were being operated within the same split of air.
Dust from the first continuous miner was being blown
across to the crew members working on and around the
second miner. Tr. 39-•0, 203, 250.

(3)

That when the designated mantrip (a mine car outfitted
with skids and pulled by a scoop car) was unavailable,
miners were transported in and out of the mine in the
bucket of the scoop. Because of overcrowding, there
was a danger, in the event the scoop and bucket
bounced up against the roof, of being bounced out of
the bucket or being pinned against the roof. Tr. 11,
33, 35, 200, 255.

(4)

That loose roof existed throughout the mine,
particularly along travelways, and was allowed to
remain uncorrected even after Hicks' complaints. Tr.
26-30, 140, 198, 252-253.

It was Hicks' contention, supported by other testimony, that
Superintendent
was generally responsive to his complaints but that
Foreman Sutherland was not so responsive, particularly with
to loose
roof conditions. Tr. 43, 103, 227-228, 232.
On the day of his discharge, May 11, 1989, 2 Hicks and Douglas Lester
were assigned to shuttle cars in the No. 1 section. At about 10:00 a.m., the
continuous miner on the section broke down and Sutherland told Hicks and
Lester to go to lunch while the machine was being repaired. The two miners
travelled about 200 feet to the feeder area of the belt line to eat. 12
2

The jridge's decision indicates that the discharge occurred on May 10,
1989, 12 FMSHRC 567, but it appears that Thursday, May 11, 1989 was the correct
date. Tr. 18, 258. The error apparently arose from Hicks' own confusion over

days and dates during the week of May 7, 1989.

525

Tr. 50, 79.

FMSHRC 567; Tr. 51, 258.
Testimony as to the ensuing sequence and timing of events is somewhat at
odds.
It is agreed, however, that once the continuous miner was repaired,
Sutherland walked back to the feeder area and told Hicks and Lester that they
should get back to work. Hicks complained that they had not had enough time
to eat, that Sutherland should be "ashamed" of himself and that Hicks hoped
Sutherland "would prosper [or profit] from this." Sutherland replied that he
wouldn't prosper but the "company might." Tr. 52-53, 120-121, 259.
According to Sutherland, Hicks jumped up, threw out the remainder of his
coffee and said, "well, kiss my ass." Tr. 260. Hicks admits that he made the
statement but not until he had returned to his shuttle car and had started
driving back to the face area. Tr. 53, 352. Hicks' version is corroborated
by Douglas Lester.
Tr. 229.
In any event, Sutherland then told Hicks to "get
[his] bucket and go to the outside" and arranged for Hicks' transportation out
of the mine.
Tr. 54, 260.
Hicks returned to the mine the following morning, Friday, May 12, 1989,
and met with Payne and Sutherland. Payne asked Sutherland why he had fired
Hicks and Sutherland replied that H:i,cks had "bad-mouthed" him.
Payne
indicated that it was Sutherland's decision whether to discharge Hicks or
allow him back into the mine, and Sutherland stood by his decision of the
previous day.
12 FMSHRC 567; Tr. 179.
Sometime later co-owner Messer arrived
and spoke briefly with Payne and Hicks. He asked Hicks what had happened and
Hicks told him that he'd been fired. Messer stated that he would stand behind
Sutherland's decision. Tr. 58, 308. On the following day, Saturday May 13,
1989, Payne and Sutherland met with co-owner Jerry Lester, who also decided to
let Sutherland's decision stand. Tr. 154, 329, 331.
Payne visited Hicks at his home that evening and informed him of Jerry
Lester's decision to uphold the discharge. Hicks and Payne then prepared a
list of hazardous and/or violative conditions that they alleged to exist in
the No. 1 Mine, and on Monday, May 15, 1989, Hicks visited the local MSHA
office and filed his section lOS(c) complaint. Tr. 50, 77-81, 181-182.
The Commission has long held that a miner seeking to establish a prima
facie case of discrimination under section 105(c) of the Mine Act bears the
burden of persuasion that he engaged in protected activity and that the
adverse action complained of was motivated in any part by that activity.
Secretary o.b.o. Pasula 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 (3rd Cir. 1981); Secretary o.b.o. Robinette v. United
Castle Coal Company, 3 FMSHRC 803, 817-18 (April 1981). The operator may
rebut the prima facie case by showing either that no protected activity
occurred or that the adverse action was not motivated in any part by the
protected activity.
Failing that, the operator may defend affirmatively
against the prima facie case by proving that it was also motivated by
unprotected ac-tivity and that it would have taken the adverse action in any
event for the unprotected activity alone.
Pasula, supra; Robinette, supra.
See also, ~' Eastern Assvc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th
Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 954, 958-59 (D.C.

526

Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically
approving the Commission's Pasula-Robinette test).
Applying the Pasula-Robinette test to the instant case, the judge
determined that Hicks had engaged in protected activity by complaining
directly to Sutherland (and to some extent Payne) about loose rock, improper
ventilation, inadequate jack supports and riding in the bucket of the scoop.
The judge further found that Hicks had obviously been adversely affected by
being discharged by Sutherland on May 11, 1989. 12 FMSHRC at 565.
In order to determine whether a retaliatory motive existed between the
protected activity and the discharge, the judge went' on to make findings
regarding the proximity in time between Hicks' various complaints and the date
of his discharge. With respect to Hicks' complaint about inadequate jack
supports, the judge credited Hicks' "uncontradicted direct testimony that a
week before his discharge, he had complained to Sutherland about the failure
to use safety jacks." 12 FMSHRC at 566.
As to the other complaints, however, the judge found that "[t]he weight
of evidence fails to establish that the balance of Hicks' complaints were made
within close proximity to his disch<:irge." Id.
Specifically, he determined
that the complaint about loose rock appeared to have occurred a month before
the discharge; that Hicks' testimony that he complained about ventilation a
week before his discharge was not corroborated by his responses to
interrogatories; and that Hicks' testimony that he complained about riding in
the scoop bucket in April or May was not corroborated by his own witnesses and
was contradicted by Sutherland, who testified that the complaint was made
several months before the discharge.
Nevertheless, from his findings that Hicks had complained about the
safety jacks within a week before the discharge and that Sutherland "got mad
on occasion" in response to Hicks' complaints, the judge concluded that "there
is some evidence to support a finding that the firing of Hicks by Sutherland
was based, in some part, on the safety complaints that Hicks had made." 12
FMSHRC at 567.
The judge went on to hold, however, that Cobra had affirmatively
defended against Hicks' prima facia case of discrimination by proving that
Sutherland (and Cobra) were motivated by Hicks' insubordinate swearing and
would have discharged him for that unprotected activity alone.
In arriving at
that conclusion the judge determined that Messer and Jerry Lester, the coowners who endorsed Sutherland's firing of Hicks, were not aware of Hicks'
safety complaints; that Superintendent Payne expressed no displeasure with
Hicks' complaints; that Hicks did not indicate that Sutherland manifested any
displeasure in response to his complaints regarding loose rock in the
travelway in the days preceding the discharge; 3 that there was some evidence
that Hicks had made "smart remarks" to Sutherland in the months prior to his
discharge when he was asked to perform tasks; and that Hicks' discharge for
swearing had~ precedent in that Mary Lou Ray, a member of the bolting crew,

3

The record does not support this finding as will be discussed infra.

527

had been fired by Sutherland when she swore at him during an argument
underground. 12 FMSHRC at 567-568.
Based on these determinations of fact, the judge then concluded that
"due to the nature of the words spoken by Hicks to Sutherland, his foreman,
and the manner in which they were spoken, I find that a valid business reason
existed for the firing of Hicks," and that Sutherland found Hicks "deserving
of being fired ... for the manner in which he [Hicks] talked to him
[Sutherland], and that he would have fired him for this action in any event."
12 FMSHRC at 568. Having found that Cobra had established an affirmative
defense with respect to Hicks' unprotected activity, the judge dismissed
Hicks' complaint.
II.
A.

Disposition of Issues

Timing of Hicks' Complaints

On review, Hicks argues essentially that substantial evidence does not
support certain findings of fact that were material to the judge's ultimate
holding against him. Hicks first takes issue with the judge's conclusion
that, except for the complaint regaJ;:ding lack of safety jacks, none of the
complaints was made in close proximity to the time of Hicks' discharge. For
instance, the judge found that Hicks' witnesses did not corroborate Hicks'
testimony that he had complained about loose roof in the travelway two days
before his discharge, but Hicks notes that Mary Lou Ray testified that Hicks
did complain about loose roof while travelling in and out of the mine and that
such complaints occurred two or three times a week. Tr. 198. Hicks argues
that, while Ray's testimony was not precisely corroborative, it is nonetheless
supportive of his testimony.
Perhaps Hicks' most significant assignment of error relates to one of
the judge's findings with respect to Cobra's affirmative defense. At 12
FMSHRC at 568 the judge states:
I find that at least a week elapsed between Hicks' complaint about
jacks and loose rock, and his being fired. It is s
that
Hicks did not indicate that Sutherland manifested any displeasure
or anger at the complaint he (Hicks) had made about loose rock on
May 8, 2 days (sic) before he was fired. 4
Hicks

out that he did indicate in his direct testimony that

4

The judge's decision contains apparent inconsistencies regarding the
timing of Hicks' complaints about loose roof in the
The j
appears
to reject Hicks' contention that he made the complaint two days before his
discharge, apparently accepting Sutherland's contention that the complaint was
made a month before the discharge. 12 FMSHRC at 566. However, in the passage
quoted above,:. the judge finds that "at least a week elapsed between Hicks'
complaint about jacks and loose rock, and his being fired" but then appears to
credit Hicks' testimony that the complaint was made two days before the
discharge.

528

Sutherland manifested displeasure and anger in response to Hicks' complaint
about loose rock:

By Mr. Loos:
Q.
Do you remember any specific instances that you complained about
loose roof to anyone from Cobra management?
A.

Yes, sir.

Q.

May 8?

I believe it was on May 8.

Judge Weisberger:

Of what year, sir?

The Witness:

'89

By Mr. Loos:

Q.

And to whom did you complain then?

A.

Garnett Sutherland.

Q.

And what happened?

A.

He told me to get out - he stopped. He
trip off, told me to get out and pull it.

Q.

And then what?

A.

Then I got back in the car and went on to the section.
But that had been about a month I had tried to get
them to stop to pull that one specific
of rock
and he wouldn't. That morning he got mad and said,
"well, go ahead and pull it."

Q.

Now, when you say .Mr. Sutherland got mad when you
complained, what do you mean? Could you describe his
reaction?

A.

He just got furious. I mean, I don't
can't really describe it.

Q.

How could you tell
he say anything?

A.

Yeah. He acted a certain way. I mean, he cussed and
mumbled around there a little bit, but I don't know
exactly what all he said.

the man

-- I

did he act a certain way or did

529

Tr. 27-30.
Hicks argues that the loose rock complaint and the ensuing tension
between Hicks and Sutherland over its removal on May 8, 1989, were the·
principal motivating factors in Hicks' subsequent discharge, and that the
swearing episode was invoked as a pretext for the retaliatory action taken on
May 11, 1989.
Cobra argues that this case turns substantially on the judge's
determinations of witness credibility, which determinations, absent clear
error, should be sustaip.ed, on review. Cobra cites. a lack of evidence to show
operator hostility toward Hicks for his safety complaints, a lack of
coincidence in time between his complaints and the action taken against him,
and a lack of evidence to show that Hicks was treated disparately with respect
to his insubordinate swearing. In sum, Cobra argues that the judge's
dismissal of the complaint is supported by the evidence and should not be
reversed.
The Commission in previous rulings has acknowledged the difficulty in
establishing a motivational nexus between protected activity and the adverse
action that is the subject of the c~~plaint. "Direct evidence of motivation
is rarely encountered; more typically, the only available evidence is indirect
... 'Intent is subjective and in many cases the discrimination can be proven
only by the use of circumstantial evidence.'" Secretary o.b.o. Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981), rev'd on other
grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983
quoting NLRB v. Melrose Processing Co., 351 F .2d 693, 698 (8th Cir. 1965).
In Chacon, the Commission listed some of the more common circumstantial
indicia of discriminatory intent: (1) knowledge of the protected activity; (2)
hostility or animus towards the protected activity; (3) coincidence in time
between the protected activity and the adverse action; and (4) disparate
treatment of the complainant. 3 FMSHRC 2510. With respect to the first
indicium, there is no dispute; Cobra and, in particular, Sutherland admit
knowledge of Hicks' various safety complaints with respect to the four
categories set forth above at pp. 2-3. With respect to the second indicium,
the j
found that Sutherland "
mad on occasion, when presented with
Hicks' complaints", 12 FMSHRC at 567. (As indicated above, however, the judge
found, erroneously, that Hicks offered no testimony that Sutherland reacted
with "displeasure or anger" to the specific complaint about loose rock that
Hicks claimed he made on May 8, 1989. 12 FMSHRC at 568).
It is with respect to the third and fourth indicia that questions arise
in this case. The judge concluded that Hicks had satisfied the elements
necessary to establish a prima facie case of discrimination, but only with
respect to his complaints about the safety jacks. 12 FMSHRC at 567. The
judge considered the other complaints too far removed in time to have
motivated Sutherland's decision to discharge Hicks. As shown in note 4,
supra, however, the judge's decision regarding Hicks' complaints of loose rock
in the travelway is inconsistent. He discounts those complaints as a
motivational factor in one instance (12 FMSHRC at 566) but later relies on
them in conjunction with the safety jacks complaint.

530

The judge appears to have applied an overly narrow standard for
recognizing proximity between the time of a complaint and the adverse action.
In Chacon, for example, complaints ranging from four days to one and one-half
months before the adverse action were deemed sufficiently coincidental in time
to indicate illegal motive. 3 FMSHRC at 2511. In Stafford Construction, the
D.C. Circuit Court of Appeals, noting that two weeks had elapsed between the
alleged protected activity and the miner's dismissal, held that "[t]he fact
that the Company's adverse action against [the miner] so closely followed the
protected activity is itself evidence of an illicit motive." 732 F.2d at 960.
also Everett v. Industrial Garnet Extractives, 6 FMSHRC 1306, 1310 (June
1984)(ALJ Broderick), pet. for disc. rev. denied, June 23, 1984.
The Commission applies no hard and fast criteria in determining
coincidence in time between protected activity and subsequent adverse action
when assessing an illegal motive. Surrounding factors and circumstances may
influence the effect to be given to such coincidence in time. Nevertheless,
we find that the judge erred in assessing Hicks' prima facie case by adhering
to an overly restrictive time frame in deciding whether certain of Hicks'
complaints were "within close proximity to his discharge." 12 FMSHRC 566-67.
Furthermore, it was error fo:r::.the judge, in assessing retaliatory
motives, to have considered each of the .four areas of complaint (safety jacks,
loose rock, ventilation and riding in the scoop bucket) in isolation,
determining in each instance how proximate in time the complaint was to the
May 11, 1989, discharge. Under the circumstances it would have been
appropriate to consider the complaints as a whole in order to establish
whether a pattern of protected conduct existed that might have provided
sufficient motivation for the May 11, 1989, discharge.
Accordingly, we vacate the judge's determination that Hicks had
established a prima facie case only with respect to his complaints about the
safety jacks. On remand, the judge is directed to reconsider, in light of the
principles expressed in Chacon and Stafford Construction, all areas of Hicks'
complaints as motivating factors in Hicks' discharge. In the event that the
judge continues to discount Hicks' complaints about poor ventilation, the
judge is directed to explain the bases for that conclusion. The judge
indicates that Hicks' hearing testimony regarding the timing of those
complaints is not corroborated by his answers to interrogatories filed two and
one-half months before the hearing. 12 FMSHRC at 566. without further
elaboration, however, it is unclear whether the judge was determining the
weight to be given Hicks' hearing testimony or whether he was making a
credibility finding adverse to Hicks.
B.

Cobra's Affirmative Defense

The Commission set forth the general principles for evaluating an
operator's affirmative defense under the Pasula-Robinette test in Bradley v.
Belva Coal Co"._, 4 FMSHRC 982 (June 1983):
The operator must prove that it would have disciplined
the miner anyway for the unprotected activity alone.
Ordinarily, an operator can attempt to demonstrate

531

this by showing, for example, past discipline
consistent with that meted out to the alleged
discriminatee, the miner's unsatisfactory past work
record, prior warnings to the miner or personnel rules
or practices forbidding the conduct in question. Our
function is not to pass on the wisdom or fairness of
such asserted business justifications, but rather only
to determine whether they are credible and, if so,
whether they would have motivated the particular
operator as claimed.
4 FMSHRC at 993.
Resolution of any factual issues according to the above principles will
also bear on issues surrounding disparate treatment, the fourth indicium of
discriminatory intent set forth in Chacon, supra. In Secretary o.b.o. John
Cooley v. Ottawa Silica Corp., 6 FMSHRC 516, 520-21, the general principles of
Bradley (set forth above) were tailored specifically to situations involving
the use of profanity. In Cooley the Commission held that profanity is
"opprobrious conduct" and is not protected under the Mine Act. We further
held that when an operator asserts such unprotected conduct in its affirmative
defense, the proper course-is to envision whether the adverse action would
have been taken in the absence of any protected activity. The Commission then
weighed certain factors for determining whether the opprobrious conduct, in
and of itself, was grounds for dismissal: Had there been previous disputes
with the miner involving profanity? Had anyone ever been discharged or
otherwise disciplined for profanity? Was there a company policy prohibiting
swearing, either generally or at a supervisor? Finding a negative answer to
each question, the Commission, in Cooley, rejected the operator's affirmative
defense.
In this case there is corroborated testimony that swearing was a common
occurrence in Cobra's No. 1 Mine and that some of it was directed by hourly
employees at supervisors. Tr. 66-67, 155, 205-206, 261, 273. The judge
found that
was a common practice. He credited Sutherland's
testimony, however, that there was a difference between swearing in a jocular
manner and swearing in a serious manner. 12 FMSHRC at 567.
The judge further found that Hicks' discharge for swearing was not
pretextual because Sutherland had previously fired Ray for swearing. The
judge's reliance upon the Ray discharge needs to be explained further. First,
the record discloses that Ray's discharge was quickly rescinded on the
instructions of Payne. 5 Second, the Ray incident could also be viewed as an
aberration rather than as a precedent in support of the adverse action taken
against Hicks. Given the context of widespread use of profanity in the No. 1
Mine, the severe disciplinary action taken against
Ray and Hicks could be
viewed as disparate treatment insofar as swearing was neither prohibited nor,

5

Sutherland testified that he rescinded the Ray firing because Payne
threatened to fire Sutherland if he didn't. Tr. 264-265.

532

apparently, discouraged.

6

The judge does, in fact, place emphasis on the "manner" in which the
fateful words were spoken - seriously as opposed to jokingly -- but did not
resolve the dispute over the context within which the exchange in question
took place. Did Hicks make the statement while in the process of defying
Sutherland's order to return to work, as Sutherland testified, or Did Hicks
make the statement after he had already boarded his shuttle car and had
started back to the face, as Hicks and Douglas Lester testified? Sutherland
testified that both the swearing and Hicks' refusal to comply with the order
to return to work motivated the discharge. Tr. 273. The judge did not
resolve the conflicting testimonies of Hicks, Douglas Lester, and Sutherland
on this factual issue and should do so on remand.
As this Commission has often stated, it is bound by the substantial
evidence test when
an administrative law judge's decision.
30
U.S.C. § 823(d)(2)(A)(ii)(I). This was succinctly stated in Donald F. Denu v.
Amax Coal Co., 12 FMSHRC 602 (April 1980):
"Substantial evidence means 'such relevant evidence as
a reasonable mind might accept as adequate to support
a conclusion~. Consolidation Edison Co v. NLRB, 305
U.S. 197, 229 (1938). Nevertheless, 'substantiality
of evidence must take into account whatever in the
record fairly detracts from its weight.'
Camera v. NLRB, 340 U.S. 474, 488 (1951)."
610.
Until the judge resolves the factual issues discussed above, we are
unable to determine, at this
, whether substantial evidence supports the
judge's conclusion that Hicks' statement warranted
in any event.
This is particularly true in view of the testimony as to widespread use of
profanity in Cobra's No. 1 mine, management's general tolerance of that
, and the lack of disc
meted out to Hicks for an earlier
incident of profanity
n.6,
The judge is therefore directed to
re-evaluate Cobra's affirmative defense in terms of the criteria set forth in
.::.:=.::<:=-:::::,.1... and Cooley,
and in
of the discussion above.

6

Al though the judge did not reference it, Sutherland testified to an
earlier incident when Hicks directed an obscene comment to him.
Rather than
disciplining Hicks, Sutherland "shrugged i t off. 11 Tr. 271 72.

533

I.

Conclusion

Accordingly, we vacate the Judge's decision and remand this matter for
further proceedings consistent with this opinion.

Joyce A. Doyle,

afiJ_

Arlene Holen, CommissionB?=

L. Clair Nelson, Commissioner

Dis ri ut

Oil

:fr. ,\.mos Hicks
'-oute 2, Box 27
sville, West Vi
Kurt

ia

24873

. Pomrenke, Esc.

Whit , Elliott & Bundv
.0. Box Sli.:JQ

Bristo , \fir

ni

242()

Administrat ve Law Judge Avram Wei
r
Federal '.''.ine Safety S. Health Review Commission
5203 ~ees
Pike, Suite 1000
Falls Church, Vi
'"12041
I1 i

534

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

April 16, 1991
MICHAEL P. DAMRON

v.

Docket No. CENT 89-131-DM

REYNOLDS METAL COMPANY

BEFORE:

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

DECISION
BY THE COMMISSION:
This discrimination proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). The
issue presented is whether substantial evidence.of record supports a
decision by Commission Administrative Law Judge James A. Broderick,
dismiss
a complaint of discrimination brought by Michael P. Damron
pursuant to section l05(c)(3) of the Mine Act. In his decision, the judge
concluded that Damron's work refusal on September 7, 1988, was not based on
a reasonable, good faith belief that a hazard existed, and that therefore
his discharge was not in violation of section lOS(c)(l) of the Mine Act.
12 FMSHRC 414 (March 1990)(ALJ). 1 Damron petitioned for review asserting
that the judge (1) misconstrued the testimony of a witness, (2) failed to
state the basis for a credibility determination, and (3) failed to consider
the testimony of another witness. The Commission granted Damron's petition
for discretionary review. For the reasons that follow, we vacate the
judge's decision and remand for further consideration.

1

Section lOS(c)(l) provides in pertinent part:
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].

30 U.S.C. § 815(c)(l).

535

I.

Background
For more than nine years prior to September 1988, Michael P. Damron
had been employed as a laborer at the Reynolds Metal Company ("Reynolds")
Sherwin Plant, at which bauxite is processed into a derivative of aluminum
called alumina. Scale, a by-product of the chemical process, is scraped
from the alumina tanks and fed onto a conveyor belt to the ball mill, which
crushes it into powder. The belt shuts down automatically, thus preventing
damage to the mill, when a metallic object passes urtder a magnet affixed to
the midpoint of the belt. The ball mill and belt are located outside and
directly below the operating floor where the kilns are located. The
operating floor is open and is approximately 30 feet above the belt and
mill.
In September 1988, Damron was working as a hydrate helper. His
primary duties included removing metal and other foreign objects from the
scale at the location of the magnet. He was also responsible for cleaning
the head and tail pulleys that drive the conveyor belt, maintaining the
general area, emptying wheelbarrows"filled with scale, making adjustments on
the variable speed feeder,-operating the portable pump in the pit area where
scale is fed onto the belt, and keeping the equipment in operating order.
Tr. 292-94.
In 1984, a shelter had been erected near the magnet. It was replaced
by a new one about two years later. The shelters consisted of scaffolding 6
feet high and 6 feet square, covered with 2' x 12' boards with an additional
piece of plywood over the boards. Although Reynolds denied that the
shelters had been constructed for safety purposes, to guard against
materials falling from the operating floor, the judge found:
During the period from 1984 until September 1988, on
numerous occasions large cloth filters weighing in
excess of 100 pounds were dropped from the
floor to the ground below by operations
employees. Metal rods, pieces of scaffold boards,
bolts, tools, and pieces of corrugated metal siding
also fell or were dropped; liquid hydrate spilled
from the upper floor to the ball mill area.
12 FMSHRC at 415.
On
1, 1988, following an inspection by the Department of
Labor's Mine Safety and Health Administration ("MSHA"), Reynolds removed the
shelter. The MSHA
had pointed out that an electrical extension
cord running to the shelter was not properly grounded, that the shelter area
was dirty, and that the chair on which Damron sat was broken, but no
citations were issued for conditions in the shelter. 12 FMSHRC at 416.
Reynolds contends that the shed was removed because of numerous health and
safety problems and to avoid future citations. Br. 3. Following a protest
by Damron, a safety meeting between company and union representatives was

536

held on Friday, September 2, 1988, to discuss new protections at the work
site.
Reynolds agreed to erect a barrier against the handrail of the upper
floor and to erect a metal shed in the area where the magnet was located in
order to protect the ball mill operator. Reynolds also agreed not to
operate the mill until the guardrail barrier was in place.
On Monday and Tuesday, September 5 and 6, Damron, after expressing his
concern about the lack of a shelter, was assigned to other duties and was
not required to run the ball mill. During that time, he discussed his
concerns about operating the belt without temporary overhead protection with
General Supervisor Thomas Reynolds and Foreman Arlan Boatman.
Supervisor
Reynolds testified that, on Monday night, September 5, he instructed Damron
as follows:
And I told him that, if he had any real safety
concerns regarding the operation of the belt line,
without that temporary shed, that he should go
outside the building, down the tunnel, and operate
the belt standing in that position. And that as
metal came up the belt, he could shut the belt down
and remove it. And without any further comment he
left the offi:ce.
Tr. 318-19.
Boatman testified that he was unaware of the safety meeting on Friday,
September 2, but that on Monday and Tuesday, he and Damron discussed his
concerns:
I also told Mike that ... in what he stated
yesterday, that if he felt uneasy in standing at the
metal detector area, that he could move to any
position that he felt safe or would feel safer. And
one thing that he did not say that I also told him,
that should anything go through the detector, if for
any reason it failed and we did get metal in the
mill, that it would be my responsibility.

Tr. 351 52.
When asked ir he had heard Reynolds' testimony giving him the option
of working the mill from a safe distance, Damron stated:
A.
Yes, I heard what he said.
It's not true, he
never given [sic] me any options, just to do it or
else.

Q.

You'd disagree with his testimony?

A.

Yes, I do.

Tr. 460.

537

When asked if anyone, other than Boatman, had ever suggested any way
of operating the mill other than standing by the magnet, Damron replied:
A.

No, they didn't.

Nobody but Mr. Boatman.

Tr. 460.
Damron further testified that, when he reported for the afternoon
shift on Wednesday, September 7, he was ordered by foreman Boatman to run
the ball mill. Damron refused, stating that "there's still no overhead
protection over there, it's unsafe, I don't want to do it." Tr. 231.
Boatman thereafter suspended.Damron with intent to discharge. Tr. 358.
When Boatman was asked whether he would have allowed Damron to work
the mill from outside the building on Wednesday, September 7, when he
suspended Damron, Boatman testified:
THE WITNESS: I would have allowed him to operate
the mill as I had directed him to, which would have
been under normal conditions, as we had been
operating. And this would have. been his direction.
MS. CUNNINGHAM: (To the witness) And had he
objected to working or standing at the magnet, what
about that?

A.
No. Because the situation, as far as me as a
representative of the company, and as a supervisor,
that if I gave him the direct order to operate the
facility under normal conditions, standing where he
needed to, if he needed to stand at the metal
detector, if he needed to clean conveyor belts, tail
pulleys or whatever, it would be the general
operation, the regular general operation of the
facility.
Tr. 353.
Damron, when asked if Boatman suggested to him on Wednesday, September
7, that he run the mill from a distance, testified:
A.

He made that suggestion on that Monday when I
talked to him and we walked out into the area,
not on a Wednesday.

Q.

Okay.

A.

On Wednesday, there was no room for discussion.

Q.

Okay. But do you think if you'd told him that
you'd run the Mill from outside the area that he

Do you think that ....

538

was unwilling to go along with that?
A.

Well, I can't speak for Mr. Boatman, I don't
know what he would say at that point in time.

Q.

He was simply asking you to run the Mill,
though, wasn't he?

A.

He was directing me to run the Mill, yes.

Q.

Okay.

A.

He didn't direct me to run the Mill this way; he
didn't direct me to run the Mill that way;
he directed me to run the Mill.

Tr. 251.
Two days later, the metal shed was erected at the magnet site. On
September 12, 1988, Damron's discharge became effective. In October 1988,
Damron filed a discrimination complaint with MSHA. On June 1, 1989, MSHA
determined that no violation of section 105(c) of the Mine Act had occurred.
On June 28, 1989, Damron filed his complaint with the Commission pursuant to
section 105(c)(3) of the Mine Act. Following arbitration under the union
contract, Damron was reinstated, without back pay, on November 21, 1989.
Tr. 182.
II.

Disposition of Issues
The general principles governing analysis of discrimination cases
under the Mine Act are settled. 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 proof to establish that (1) he engaged in protected
activity and (2) the adverse action complained of was motivated in any part
by that activity. Secretary on behalf of Pasula v. Consolidation Coal Go.,
2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds sub nom.
Consolidation Coal Go. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary
on behalf of Robinette v. United Castle Coal Co., 3 FMSHRG 803, 817-18
(April 1981). The operator may rebut the prima facie case by showing either
that no protected activity occurred or that the adverse action was in no
part motivated by protected activity. If the operator cannot rebut the
prima facie case, it nevertheless may defend affirmatively by proving that
it also was motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected activity alone.
Pasula, supra; Robinette, supra;
Eastern Assoc. Goal Gorp. v.
FMSHRG, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford Gonstr. Co.,
732 F.2d 954, 958 59 (D.G. Cir. 1984); Boich v. FMSHRG, 719 F.2d 194, 195-96
(6th Cir. 1983)(specifically approving the Commission's Pasula-Robinette
test).
NLRB v. Transportation Management Gorp., 462 U.S. 393, 397-403
(1983)(approving nearly identical test under National Labor Relations Act).

539

The Commission has held that a miner's refusal to perform work is
protected activity under section 105(c)(l) of the Mine Act if it is based on
a reasonable, good faith belief that the work involves a hazard.
Pasula,
supra, 2 FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at 807-12; Secretary
on behalf of Dunmire & Estle v. Northern Coal Co., 4 FMSHRC 126, 133-38
(February 1982).
See also Secretary on behalf of Cameron v. Consolidation
Coal Co., 7 FMSHRC 319, 321-24 (March 1985), aff'd sub nom. Consolidation
Coal Co. v. FMSHRC, 795 F.2d 364, 366-68 (4th Cir. 1986); Secretary of Labor
v. Metric Constructors, Inc., 6 FMSHRC 226, 229-30 (1984), aff'd sub nom.
Brock v. Metric Constructors, Inc., 766 F.2d 469 (11th Cir. 1985).
If an
operator takes an adverse action against a miner in any part because of a
protected work refusal, a prima facie case of discrimination is established.
lL..g_,_, Dunmire & Estle, supra, 4 FMSHRC at 132-33; Metric Constructors,
supra, 6 FMSHRC at 229-30, aff'd, 766 F.2d at 472-73.
The disposition of this case turns on the issue of whether Damron's
refusal to operate the ball mill on September 7 was based on a reasonable,
good faith belief that doing so involved a hazard.
In his decision, the
judge found that the Respondent was aware that on numerous occasions, large
filters, rods, tracks, tools and other heavy objects had fallen or were
dropped from the operating_floor to'the ground below.
Accordingly, he
concluded:
"From the perspective of the ball mill operators, including
Complainant, the hazard was real, and their perception of the hazard was
reasonable." 12 FMSHRC at 420. The judge also found that Damron had
communicated his safety concerns in the formal safety meeting held on
September 2, 1988, and that "Respondent addressed the concerns by agreeing
to put up a permanent barrier along the handrail of the operating floor
above the ball mill and to erect a metal shed for the mill operator at or
near the magnet." 12 FMSHRC at 420. As to Damron's concerns regarding the
lack of overhead protection pending completion of the metal structure, the
judge stated, "I find as a fact that Reynolds did tell Complainant that he
could run the mill away from the building, 'down the tunnel.'" 12 FMSHRC at
418. Although finding Boatman's testimony "ambiguous" on the issue of
whether, on September 7, he would have permitted Damron to run the belt from
a safe distance, the judge concluded:
However, he [Boatman] did not withdraw his
authorization given two days before that Complainant
could have operated the ball mill away from the
belt. Nor did Complainant testify that he [Damron]
understood that it had been withdrawn.

Having found that Respondent, through supervisors Reynolds and
Boatman, had addressed Damron's reasonable fear of a safety hazard by
permitting him to work outside the area of danger until the shed was
erected, the judge concluded that "Damron's refusal to operate the ball mill
on September 7, 1988, was not based on a reasonable, good faith belief that
the work was hazardous. Respondent's action in discharging him was not in
violation of section 105(c) of the Act." 12 FMSHRC at 421.

540

On review, Damron contends that there is not substantial evidence in
the record to support the judge's finding that foreman Boatman authorized
him on September 7, 1988, to operate the mill at a safe distance from the
belt, in that Boatman's testimony, rather than being "ambiguous," is
unequivocal to the effect that Damron was given no option but to operate the
mill from the usual area. Damron further argues that the judge erred by
failing to provide any basis for his credibility determination concerning
the contradictory testimony of Reynolds and Damron and by failing to
consider the testimony of another witness, Dalma Rogers.
This Commission has frequently addressed the standard of review to be
applied in determining whether the record contains substantial evidence to
support a judge's findings. In Secretary v. Michael Brunson, 10 FMSHRC 594,
598-99 (May 1988), the Commission stated:
As we have consistently recognized, the term
"substantial evidence" means "such relevant evidence
as a reasonable mind might accept as adequate to
support a conclusion." See,~. Mid-Continent
Resources, Inc., 6 FMSHRC 1132, 1137 (May 1984)
quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938). While we do not lightly overturn a
judge's factual findings and credibility resolutions
(~. Hall v. Clinchfield Coal Co., 8 FMSHRC 1624,
1629-30 (November 1986)), neither are we bound to
affirm such determinations if only slight or dubious
evidence is present to support them. See, ~.
Krispy Kreme Doughnut Gorp. v. NLRB, 732 F.2d 1288,
1293 (6th Cir. 1984); Midwest Stock Exchange, Inc.
v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980).
Commission Procedural Rule 65(a), 29 C.F.R. § 2700.65(a), states in
pertinent part that a Commission judge's decision "shall be in writing and
shall include findings of fact, conclusions of law, and the reasons or bases
~or them, on all the material issues of fact, law or discretion presented by
the record, and an order." (Emphasis added.) This is necessary, as the
Commission explained in Secretary v. Anaconda Company, 3 FMSHRC 299
(February 1981) "in order to prevent arbitrary decisions and to permit
meaningful review." Further, in Anaconda, the Commission stated:
Without findings of fact and some justification for
the conclusions reached by the judge, we cannot
perform that function effectively. See Duane
Smelser Roofing Co. v. Marshall, 617 F.2d 448, 449
450 (6th Cir. 1980); ... UAW v. NLRB, 455 F.2d 1357,
1369-1370 (D.C. Cir. 1971); Anglo-Canadian Shipping
=-'---"=~.:;_,...-"'-""=' 310 F.2d 606, 615-617 (9th Cir.
1962); R.W. Service Systems, Inc., 235 N.L.R.B. No.
144~ 99 L.R.R.M. 1281, 1282 (1978).
Id. at 300.

541

In this case, the judge characterized as ambiguous the testimony of
foreman Boatman on the critical issue of whether he would have permitted
Damron to work at a safe distance from the belt on September 7, 1988. 12
FMSHRC at 418. Notwithstanding this ambiguous testimony, the judge found
that Boatman" ... did not withdraw his authorization given two days before
that Complainant could have operated the ball mill away from the belt." Id.
If Boatman's testimony is ambiguous, we find no record support for this
crucial conclusion. Moreover, the decision.does not contain an explanation
for the judge's apparent rejection of Damron's conflicting testimony on the
substance of the same conversation on September 7, 1988, wherein Damron sets
forth his understanding of Boatman's work order. Damron testified that in
that conversation he received no indication that he had permission to work
at a safe distance from the belt. Therefore, in accordance with Commission
Procedural Rule 65(a), supra, and to ensure that· effective appellate review
can be performed, we remand this matter to the judge with directions that he
further analyze the relevant testimony and set forth the bases for his
findings.
We next address Damron's contention that the judge erred by failing to
provide a basis for his credibility.. determination concerning the
contradictory testimony .of Reynolds and Damron. In his decision, after
setting out supervisor Reynolds testimony that he had specifically
authorized Damron to run the mill from a safe distance and Damron's denial
that Reynolds had ever given such permission, the judge found, without
explanation, that Reynolds had given such authorization. 12 FMSHRC at 418.
If the judge's finding on this issue is based upon a credibility
determination, it should be so stated.
As to Damron's third assignment of error, our review of the record
convinces us that the judge did not abuse his discretion in choosing not to
rely on the testimony of Dalma Rogers in reaching his decision. Fourteen
witnesses testified at the hearing. It is within a judge's discretion to
sift through the testimony presented and to base his decision on that which
he deems to be credible, relevant and dispositive of the issues before him.

542

III.

Conclusion
On the foregoing bases, this case is remanded to the judge for further
proceedings consistent with this opinion.

Richard V. Backley, Acting Chairman

fo@:yl:u~
I

Arlene Holen, Commissioner

L. Clair Nelson, Commissioner

Distribution
R. Michael LaBelle, Esq.
Powers & Lewis
4201 Connecticut Ave., N.W.
Suite 400
Washington, D.C. 20008
Jean W. Cunningham, Esq.
Reynolds :':'letals Company
P.O. Box 27003
Richmond, Virginia 23261
Administrative Law Judge James A. Broderick
Federal Hine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia
22041

543

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

April 17, 1991
DAVID HATFIELD

v.

Docket No. SE 90 122-D

COLQUEST ENERGY, INC.

BEFORE:

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

BY THE COMMISSION:
Respondent Colquest Energy, Inc. ("Colquest") has filed a petition
seeking interlocutory review of an Order issued by Commission Administrative
Law Judge Roy J. Maurer on December 18, 1990. In that Order, the judge
denied Colquest's motion for summary dismissal of a Complaint of
DiscriminatiQn filed by David Hatfield with the Commission on July 11, 1990,
pursuant to section l05(c)(3) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(c)(3)(1988), ("Mine Act" or "Act"). The Order further
denied Colquest's motion to strike Hatfield's amended complaint filed on
NovemQer 30, 1990. For the reasons that follow, we grant the petition, stay
briefing, vacate the judge's order and remand for further proceedings.
Hatfield's pro~ complaint of discrimination, as filed with the
Commission repeats his written complaint of discrimination filed with the
Department of Labor's Mine Safety and Health Administration ("MSHA") on
April 26, 1990. The Secretary of Labor. ("Secretary") determined, following
an investigation of Hatfield's complaint, that no violation of the statute
had occurred and declined to prosecute a discrimination complaint on his
behalf. Hatfield then filed the subject section 105(c)(3) complaint with
the Commission.
In his complaint, Hatfield asserts that, as the result of an
ury
suffered while employed at Colquest's mine on November 17, 1989, he was
unable to return to work until April 16, 1990. At that time, he was given a
layoff slip by the company safety director, who informed him_that, under a
company policy effective in January 1990, "anyone being off work for more
than 30 days for any reason, would be terminated." The complaint further
asserts that Hatfield had not been informed of this new policy prior to his
return to work on April 16.
Colquest subsequently filed with the judge a motion for summary
dismissal of the complaint on the grounds that it failed to allege either
protected activity or adverse action motivated at least in part by protected
activity. On October 19, 1990,, the judge issued an Order to Show Cause why
the complaint should not be dismissed for failure to state a claim for

544

relief under section lOS(c) of the Act. On November 1, 1990, counsel for
the United Mine Workers of America ("UMWA") filed a response and amended
complaint on behalf of Hatfield, alleging specific instances of protected
activity that resulted in Hatfield's termination in violation of section
lOS(c) of the Act. The judge denied Colquest's motion to dismiss.
On November 13, 1990, Colquest filed motions to strike the amended
complaint and to set aside the judge's Order of Dismissal. Colquest argued
that the amended complaint was an untimely filing of a new discrimination
complaint based on previously unasserted allegations of protected activity
and that it constituted an attempt to circumvent the investigation by the
Secretary mandated under section 105(c)(2) of the Act. Hatfield responded
that the Commission, guided by the Federal Rules of Civil Procedure, should
grant liberal leave to amend pleadings, particularly in the case of a pro se
claimant. Hatfield also argued that the original complaint implicitly
contended that the discharge resulted from protected activity and that the
amended complaint merely provided specificity by describing examples of
protected activity and retaliatory adverse action on the operator's part.
As indicated above, the judge denied Colquest's motions.
Colquest petitioned ,,.for interlocutory review of the judge's order,
pursuant to Commission Rule 74(a). 29 C.F.R. § 2700.74(a). Hatfield
opposed interlocutory review on the grounds that the petition did not meet
the requirements of 29 C.F.R. § 2700.74. We grant interlocutory review
based on Colquest's showing that the judge's ruling involves a controlling
question of law and that immediate review may materially advance the
disposition of this case.
In its petition, Colquest renews its argument that the Mine Act and
the regulations issued thereunder do not contemplate amendments of
discrimination complaints, that the amended complaint is so substantially
different from the complaint filed with MSHA that it does not relate back to
the original complaint and that it represents an attempt by Hatfield to
circumvent the Secretary's statutory role in investigating and determining
discrimination claims in the first instance.
The statutory scheme devised by Congress for addressing a miner's
complaint of discrimination provides, pursuant to section 10S(c)(2) of the
Mine Act, that upon receipt of such a complaint the Secretary "shall cause
such investigation to be made as he deems appropriate," and that "[i]f upon
such investigation, the Secretary determines that the provisions of this
subsection have been violated, he shall immediately file a complaint with
the Commission .... " 30 U.S.C. § 815(c)(2). Section 105(c)(3) of the Mine
Act provides that, if the Secretary determines that no discriminatory
violation has occurred, "the complainant shall have the right, within 30
days of notice of the Secretary's determination, to file an action in his
own behalf before the CoroJUission, charging discrimination or interference in
violation of [section lOS(c)(l)] ." 30 U.S.C. § 815(c)(3). Thus, the
statutory scheme provides to miners a full administrative investigation and
evaluation of an allegation of discrimination, as well as the right to
private action in the event that the administrative evaluation results in a

determination that no discrimination has occurred.

545

See Gilbert v. Sandy

Fork Mining Co .. Inc., 9 FMSHRC 1327 (August 1987), rev'd on other grounds,
Gilbert v. FMSHRC, 866 F.2d 1433 (D.C. Cir. 1989).
The written discrimination complaint filed by Hatfield with MSHA is
general in nature and alleges no specific protected activities. The present
record contains no indication that the matters alleged in the amended
complaint were part of the case reported to and investigated by MSHA. Nor
is there evidence in the record that the Secretary's determination that the
Act had not been violated was based on matters contained in the amended
complaint. If the Secretary's determination was based upon an investigation
that did not include consideration of the matters contained in the amended
complaint, the statutory prerequisites for a complaint pursuant to
§ 105(c)(3) have not been met.
Accordingly, we vacate the judge's Order of December 18, 1990, and
remand this matter to the judge for a determination of this issue. The
complainant should be afforded an opportunity to demonstrate that the
protected activities alleged in the amended complaint were part of the
matter that was investigated by the Secretary in connection with Hatfield's
initial discrimination complaint toMSHA.

L. Clair Nelson, Commissioner

546

;>:EDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.

20006

April 22, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 90-53

v.

JAMES ROGER BELL

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 90-54

v.

ROBERT V. SWINDALL

SECRETARY OF LABOR,
MINE SAFETY A.ND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 90 55

v.
MARION EUGENE ROWLAND

DIRECTION FOR REVIEW

On March 8, 1991, Commission Administrative Law Judge James A.
Broderick issued an order granting respondents' motions for certification
for interlocutory review of the j
s orders issued February 7, 1991
(Robert V. Swindall, Docket No. VA 90-54) and February 8, 1991 (James Roger
Bell and Marion Eugene Rowland, Docket Nos. VA 90-53, VA 90-55), denying
respondents' motions for swnmary decision. Thereafter, respondents filed a
petition for interlocutory review of the judge s order of February 7, 1991
pursuant to 29 C.F.R. § 2700.74. 1
1

1

The orders issued on February 8, 1991, expressly reference and
incorporate the reasons set forth in the February 7, 1991, order issued in
Docket No. VA 90-54 (Swindall).

547

For the reasons stated below we grant the petitioR for interlocutory
review and stay br
These civil penalty proceedings were filed pursuant: to the Federal
Mine
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988).
In his
order of February 7, 1991, the judge accurately set forth the factual and
procedural history of the pending cases and correctly applied the Commission
precedent construing the subject Procedural Rule 29 C.F.R. § 2700.27(a)(time
period for filing penalty proposal).
Salt Lake County Road Department,
3 FMSHRC 1714 (1981).
Accordingly, we affirm the judge's order and remand for further
proceedings.

)
/

,

.""~~I

Joyce A. Doyle, Commissioner 1/

()

/IJ;.0z~b ~
.

L. Clair Nelson, Commissioner

Distribution

\{. Challen
, Esq.
:ionroe Jamison,
Penn, Stuart, Eskr
& Jones
P.O. Box 2009
Bristol, VA 24203
Lisa A. Gray,
United States Department of Labor
Off ice of the Solicitor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge James A. Broderick
Federal Mine Safety and Health Review Commission
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

548

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDER.AL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 11991
STENSON BEGAY,

DISCRIMINATION PROCEEDING
Complainant
Docket No. CENT 88-126-D
DENV CD 88-09

v.
LIGGETT INDUSTRIES, INC.,
Respondent

McKinley Mine

DECISION UPON REMAND
ORDER GRANTING A~TORNEY FEES ON APPEAL
Before:

Judge Maurer

On March 12, 1991, the Commission remanded this case to me,
passing down the instructions from the United States Court of
Appeals for the Tenth Circuit contained in Liggett Indus .. Inc.
v. FMSHRC,~~ F.2d ~~'No. 89-9546 (January 9, 1991), aff'g,
11 FMSHRC 887 (May 1989) (AL.J). In its decision, the Court
directed that I consider the issue of attorney fees due
complainant's counsel for services rendered on the appeal of this
case.
Complainant has filed an application for attorney fees and
:::osts on appeal which has been objected to generally and
two
more specifically,
respondent.
To begin with, section 105(c) (3) of the Mine Act provides in
part that~
When an order is issued sustaining the complainant's
charges under this subsection; a sum equal to the
aggregate amount of all costs and expenses (including
attorney's fees) as determined by the Commission to
have been reasonably incurred by the miner 7 for, or in
connection with, the institution and prosecution of
such proceedings shall be assessed against the person
committing such violation.
The legislative history of this provision makes it clear
that it was intended to make the complainant whole, or in other
words, to put him in the position as nearly as possible which he
would have been in had the discriminatory activity not taken
place. See S. Rep. No. 95-181 at 37 (1977), reprinted in
Legislative History of the .Federal Mine Safety and_ Health Act of
1977, at 625 (1978).

549

The language of the Act, supported by the legislative
history plainly requires the reimbursement of attorney fees
reasonably incurred in appellate proceedings where such
proceedings are necessary to "sustain complainant's charges."
Furthermore, "appellate proceedings" consist of those proceedings
subsequent to the AlJ Decision, both before the Commission and
the U.S. Court of Appeals. See, e.g., Munsey v. FMSHRC, 701 F.2d
976 (D.C. Cir. 1983).
Complainant seeks an award of attorney fees for 78.1 hours
of services performed during the period from June 2, 1989,
through November 5, 1990, at an hourly rate of $125. He also
seeks $897.84 for costs and expenses. Without further ado, I
find the itemized expenses of $897.84 to be reasonable and
reimbursement will be ordered herein.
Turning now to the respondent's objections to the fee
petition generally, I find them to be without merit, if not
outright mistaken.
For example, respondent makes much of a
notion that the complainant's application date entries appear out
of chronological sequence. But in reality they do, in fact,
appear in chronological order beginning June 2, 1989, and ending
November 5, 1990.
Respondent also specifically objects to the three entries
for work done before the Commission on June 2, 1989, and June 20
and 21, 1989. Respondent mistakenly believes this work was done
at or for trial and should have been included in complainant's
request before the AlJ Decision and Order was issued. However,
this argument overlooks the fact that my decision in this case,
including the award of attorney fees for the trial work was
issued on May 17, 1989. The legal work objected to was of course
performed subsequent to that and had to do with opposing
respondentus petition for discretionary review before the
Commissiono This is considered appellate work and is first
claimed hereino See 7 Munsey 7 suprao
Respondent also objects to the 5.5 hours of legal services
performed by complainant's counsel on August 1 and 2, 1990,
drafting a document entitled "Cross-application for Enforcement
of Administrative Order 18 which was subsequently filed pursuant to
Rule 15(b) of the F.R.A.P. on August 3, 1990. Respondent states
that it was untimely filed.
I note that it is complainant 1 s
right to do so under the rules, but I question the reasonableness
of filing this document at that point in time with the appeal
pending in the Court of Appeals for a year already, briefing
completed and the oral argument just three months away. The
Court of Appeals apparently ignored it as I can find no mention
of it in the record other then noting that it was filed.
Moreover, it is in large part duplicative of the complainant's
earlier briefing.
I will therefore sustain respondent's
objection to the 5.5 hours of attorney time so expended.

550

Otherwise, having carefully reviewed the entire record
including both the complainant's request for attorney fees and
costs and the respondent's objections thereto and having found no
cause to doubt the validity of the number of hours expended or
with the exception noted above, the necessity or propriety of the
work described, I will approve 72.6 hours of attorney time for
reimbursement. Moreover, as I previously determined for the
trial work in this case, I find the requested $125 per hour to be
an appropriate rate of compensation.
ORDER
Based on my consideration of the nature of the issues
involved, the high degree of skill with which the complainant was
represented, the amount of time and work involved, and other
relevant factors, it is considered that the amount of $9075
constitutes a reasonable attorney fee on appeal and is approved.
Furthermore, $897.84
hereby found to be a reasonable amount of
litigation costs and expense and is likewise approved. Both are
assessed against the respondent who is ordered to pay the same to
complainant within 3 o_ days of this order.

R
A

f'M~
i

aurer
iative Law Judge

Distribution:
Earl Mettler,
., Mettler & Lecuyer, P.c., 1st Floor, Copper
Square, 500 Copper, NWv Albuquerque? NM 87102-3151
(Certified
IViail

Charles L. Fine, Esq., 0 1 CONNOR, CAVANAGH, ANDERSON, WESTOVER,
KILLINGSWORTH & BESHEARS, 1 East Camelback Road, Suite 1100,
Phoenix, AZ 85012-1656
(Certified Mail)
rnl

551

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

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

CIVIL PENALTY PROCEEDING

..

v.

Docket No. CENT 90-104
A.C. No. 29-00096-03536
McKinley Mine

PITTSBURG & MIDWAY COAL
MINING COMPANY,
Respondent
DEClSION
Appearances:

Mary Witherow, Esq., Margaret Terry, Esq., Office
of the Solicitor, U.S. Department of Labor, Dallas,
Texas,
for Petitioner;
Ray D. Gardnerr Esq., John Paul, Esq.F The Pittsburg & Midway Coal Mining Co., Englewood, Cplorado,
for Respondent.

Beforeg

Judge Lasher

This is one of nine dockets which were consolidated for
hearingp eight of which were
ther fully or partially settled
after commencement of the hearing. The settlements were approved
from the bench on the record.
This docket involves 10 Citations. Petitioner agrees that
one Citation should be vacated and Respondent agrees to pay in
Petitioner's administrative level penalty assessment for
eight of the Citationso
The settlement as to these nine Citaons--involving either payment in full of the proposed penalty
or vacation of the citation--is reflected in the Order, infra.
The remaining Citation, Noo 3413368 8 was fully litigated at the
hearing in Albuquerque? New Mexico, on February 12, 1991, and my
decision with regard thereto follows~
Preliminary Matters
Based on stipu~ations CTr. 29-30, 35), there is no issue as
to the Commission's jurisdiction to adjudicate this matter and I
also find that Respondent at material times conducted a large
coal mining operation (surface) at its McKinley Mine (Tr. 108),
that it had approximately 90 mine safety violations during the

552

two-year period preceding the occurrence of the instant violation
in January 1990, that its ability to continue in business will
not be jeopardized by payment of a penalty for this violation,
and that it proceeded in good faith after notification by MSHA of
the subject violation to promptly abate the same. Thus, the
remaining mandatory penalty considerations are "negligence" and
"gravity." Further, if the "Significant and Substantial" designation is not sustained by evidence, such will also be considered
in the factual mosaic underpinning an appropriate penalty
determination.
Citation No. 3413368

The condition cited as a violation of 30 C.F.R. § 77.502 by
MSHA electrical inspector David L. Head on January 11, 1990, is
as follows:
The 16/3 type s.o. Power feeder to the lights on
top in the. back of dragline #2 was located in the
walkway. The A.C. voltage is 300 volts to each
light. The SeO. cable was not protected from
mechanical damage. Dragline #1 in #2 pit.
30 C.F .. R. § 77.,502, entitled "Electric equipment; examination, testing, and maintenance," provides:
Electric equipment shall be frequently examined,
tested, and properly maintained by a qualified
person to assure safe operating conditions.
When a potentially dangerous condition is found
on electric equipmentu such equipment shall be
removed from service until such condition is corrected. A record of such examination shall be
kepL
The issues litigated relate primarily to whether the alleged violation occurredu and if so, whether it was significant
and substanti
The testimony relating to this Citation appears
in the transcript at pages 100 48.
Based on the reliable and substantial evidence in the
recordu the following findings are made~
lo The conditions existing on January 11, 1990, were those
described in the Citation. Inspector Head, in his testimonyv
described the conditions he observed as follows:

553

Upon going to the top of the dragline 1 and
traveling to the back of the dragline, 2 I observed an SO-type cable laying in the walkway
in service to a 300-watt lumination system.
The cable on the bushing that entered into the
lighting system had been pulled out to where
there was no strain relief. The cable laying
in the walkway had been damaged somewhat by
sunlight or breakdown of the outer rubber jacket to the SO cable.
<Tr. 109).
2. Although the Inspector's testimony mentioned cable damage, the Citation itself did not specifically allege damage to
the cable.
(Tr. 117). The Inspector explained the discrepancy
saying, "That's probably in my notes." <Tr. 117). His notes
were not produced or introduced in corroboration, however. Respondent's electrical supervisor, Floyd Bowman, who examined the
cable shortly after the Citation was issued (Tr. 128), denied
that the cable was damaged. -(Tr.129). This is borne out to
some degree by the photos which Mr. Bowman indicated showed the
same "wires" as were there when the Citation was issued.
(Tr.
130).
In all the circumstances, I am unable to conclude that
the cable was in damaged condition on the date the citation was
issued, particularly since such was not specifically alleged in
the Citation. With this exception, however, the violation is.
found to have occurred.
(Tr. 109-112, 114). Since cable damage
was a factor the inspector considered in determining gravity--and
presumably whether the violation was significant and substantial
--such will be taken into consideration in penalty detemination.
3"
Various employees had but occasional duties in the area
where the violative conditions existed and they would have been
exposed to hazard only infrequentlyc
(Tro 114u 119 1 124p 131~

138-139)0

l

A dragline is a piece of equipment approximately 80-100 feet
high by 80-100 feet long by 80-100 feet wide.
(Tr. 110).

2

Pertinent areas of the dragline involved in this matter are
depicted in three photos taken by Respondent's witness, Supervisory electrical engineer Floyd Bowman, one week before
the hearing and over one year after the Citation was issued.
(Tr. 129). See Exhibits R-6, 7, and 8.
(Tr. 120-122).

554

4. The hazards created by the violation as above delineated
would be electrocution, electrical shock or burn, tripping and
falling over the side and off the top of the dragline and tripping and pulling the cable out of the enclosure where it terminated in the light fixture.
{Tr. 110-111, 114). 3
5. The hazards created by the violation contributed "a
measure of danger to safety" as that term is employed in Secretary v. Mathies Coal Company, 6 FMSHRC 1 (January 1984).
6. An injury from occurrence of an accident resulting from
the hazard would be of a reasonably serious nature.

7. It was not reasonably likely, however, that the hazard
contributed to by the violation would result in any injury.
a.

There was no evidence that any prior incidents, accidents, or injuries had occurred as a result of the
violative conditions.

b.

With respect to the hazard of an employee's tripping
and falling over the side of the 80-foot high dragline, there was a waist-high railing installed in
the subject area.
(Tr. 119, 121-122).

c.

Employees did not commonly or regularly travel or
perform work in the area. Rather, they did so infrequently.
(Tr. 119, 131, 132, 138).

d.

The evidence overall establishes no more than a remote possibility that an injury might have occurred.

8"
Bas
on the above findingsr it is concluded that this
olation was not significant and substantial.

9. The violative conditions were visible and obvious and
the violation is found to have resulted from a moderate degree of
negligenceo

The "tripping over the cable~ hazard is determined to exist
whether or not the area traveled by employees performing
duties on the top of the dragline is designated as a 11 travelway" as contended by Petitioner or an "access" (Tr. 131)
as described by Respondent.

555

10. Although not a significant and substantial violation,
the violation is nevertheless found to be serious in view of the
potential, however remote, for fatal or serious injuries to the
various employees who were occasionally exposed.
In view of the elimination of the significant and substantial classification of the violation, a penalty of $150 is found
appropriate and is here assessed.
ORDER
1. Citation No. 3413368 is MODIFIED to delete the "Significant and Substantial" designation thereon and to change the
"Gravity" designation in paragraph 10 A thereof from "Reasonably
likely" to "Unlikely," and is otherwise AFFIRMED.

2. Citation No. 3413370 dated January 24, 1990 is
VACATED.
3. Respondent {pursuant to the settlement agreement at
hearing or as otherwise asessed hereinabove) SHALL PAY to the
Secretary of Labor within 30 days from the issuance date of this
decision the following penalties totaling $1,012.
Citation No.

AMOUNT

3413452
3413453
3413455
3413456
341345 7
3413458
3413459
3413460
3413368

$

20
20
20
371
20
20
371
20
150

TOTAL

ffi;<.:t£.d'.d'~kt ~ (

Michael A. Lasher, Jr.
Administrative Law Judge

556

Distribution:
Mary Witherow, Esq., Margaret Terry, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 501,
Dallas, TX 75202 (Certified Mail)
Ray D. Gardner, Esq., John Paul, Esq., THE PITTSBURG & MIDWAY
COAL MINING COMPANY, 6400 South Fiddler's Green Circle, Englewood, CO 80111-4991 CCertif ied Mail)
Mr. Robert Butero, International Health and Safety Representative
for UMWA District 13, 228 Lea Street, Trinidad, CO 81082
(Certified Mail)

ek

557

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

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 90-105
A.C. No, 29-00096-03537

v.

McKinley Mine

PITTSBURG & MIDWAY COAL
MINING COMPANY,
Respondent
DECISION
Appearances:

Mary Witherow, Esq., Margaret Terry, Esq., Office
of the S9licitor'; u.s.· Department of Labor, Dallas,
Texas, for Petitioner;
Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Colorado,
for Respondent.

Before:

Judge Lasher

This is one of nine docket cases which were consolidated for
hearing, eight of which were either fully or partially settled
after commencement of the hearing.
The settlements were approved
from the bench on the record.
The subject docket contains three citations. As part of the
,:;verall settlementy Respondent agrees to pay
ti oner MSHA' s
proposed penalty ($371) in full for each of the citationsp as
more specifically reflected in the Order belowo
ORDER

Respondent shall pay to the Secretary of Labor
thin 30
days from the issuance date of
s decision the following
penaltieso
Citation Noo

Amount

371

3414747
3414748
3414749

$

TOTAL

$1,113

371

371

~.kq" ~ ~C:(; ,,_ _
Michael A. Lasher, Jr.
Administrative Law Judge
558

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

n

l~ ~P"i,·

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

~J. . "n"
:j;} 1
t

CIVIL PENALTY PROCEEDING

.

v.

Docket No. CENT 90-114
A.C. No. 29-00096-03540
McKinley Mine

PITTSBURG & MIDWAY COAL
MINING COMPANY,
Respondent
DECISION
Appearances:

Mary Witherow, Esq., Margaret Terry, Esq., Office
of the Solicito,r, U.S. Department of Labor, Dallas,
Texas, for Petitioner;
Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Colorado,
for Respondent.

Before:

Judge Lasher

This is one of nine dockets which were consolidated for
hearing, eight of which were either fully or partially settled
after commencement of the hearing.
The settlements were approved
from the bench on the record.
The subject docket contains three citations. As part of the
overall settlement~ Respondent agrees to pay Petitioner MSHA 1 s
proposed penalty in full for each of the citationsv as more specifically
ted in the Order below.
ORDER
Respondent shall pay to the Secretary of Labor within 30
days from the issuance date of this decision the following
penalties a
Citation Noa

Amount

3414826
3414829
3414832

$371
20
371

TOTAL

$762

;M~~~~fp
Michael A. Lasher, Jr.
Administrative Law Judge
559

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

1. 1991
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

Docket No. CENT 90-116
A.C. No. 29-00096-03538
McKinley Mine

Vo

PITTSBURG & MIDWAY COAL
MINING COMPANY,
Respondent
DECISION
Appearances:

Mary Witnerow, Esq., Margaret Terry, Esq., Office
of the Solicitor, U.S. Department of Labor, Dallas,
Texas,
for Petitioner;
Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Colorado,
for Respondent.

Before:

Judge Lasher

This is one of nine dockets which were consolidated for
hearing eight of which were either fully or partially settled
a.fter commencement of the hearing"
The settlements were approved
rom the bench on the record"
This docket involves eight Citations. Petitioner agrees
that one Citation should be vacated and Respondent agrees to pay
in full Petitionerus administrative level penalty assessment for
seven of the Citationso 1/ The settlement as to these eight
tations--involving either payment in full of the proposed
penalty or vacation of the Ci tation--is refl ected in the Order,
infrao
1

!/

As to one of these Citations, No. 3413139, the parties concur that the "Significant and Substantial" designation
thereon should be abandoned and my Order subsequently herein
accomplishes the vacation of this designation.

560

ORDER
1. Citation No. 3413139 is MODIFIED to delete the n'Significant and Substantial" designation thereon and is otherwise
AFFIRMED.
2.

Citation No. 3413083 is VACATED.

3. Respondent pursuant to the settlement agreement at hearing shall pay to the Secretary of Labor within 30 days from the
issuance date of this decision the following penalties totaling
$1,895.
Citation No.

AMOUNT

3413135
3413140
3413085
3413088
3413094
3413137
3413139

$

TOTAL

20
371
371
371
20
371
371

$1,.895

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution~

Mary Witherow, Esq., Margaret Terry, Esq.u Office of the Solie
tor 0 U.S. Department of Laboru 525 Griffin Street, Suite 501 0
Dallasu TX 75202
(Certified Mail)
Ray D. Gardner 6 Esq.v John Paul, Esq., THE PITTSBURG & MIDWAY
COAL MINING COMPANY, 6400 South Fiddler~s Green Circle,
woodu CO 80111-4991
(Certified Mail)
Mr. Robert Butero, International Health and Safety Representative
for UMWA District 13, 228 Lea Street, Trinidad, CO 81082
(Certified Mail)

ek

561

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

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 90-117
A.C. No. 29-00096-03539

v.

McKinley Mine

PITTSBURG & MIDWAY COAL
MINING COMPANY,
Respondent
DECISION
Appearances:

Mary Witherow, Esq., Margaret Terry, Esq., Office
of the Solicitor, U.S. Department of Labor, Dallas,
Texas,
for Petitioner;
Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Colorado,
for Respondent.

Before:

Judge Lasher

This is one of nine dockets which were consolidated for
hearingv eight of which were either fully or partially settled
after commencement of the hearingo The settlements were approved
from the bench on the record.
This docket involves 10 Citations. Petitioner agrees that
two Citations should be vacated and Respondent agrees to pay in
full Petitioner 1 s administrative level penalty assessment for
eight of the Citationso
The settlement as to these 10 Citations
--involving either payment in full of the proposed penalty or
vacation of the Citation--is reflected in the Order, infra.
ORDER
lo

Citations numbered 3413501 and 3413520 are VACATED.

2. Respondent pursuant to the settlement agreement at hearing SHALL PAY to the Secretary of Labor within 30 days from
the issuance date of this decision the following penalties totaling $2,917.

562

Citation No.

AMOUNT

3413099
3413100
3413502
3413504
3413519
3413821
3413825
3413503

$

588
371
588
371
20
20
371

588
$2,917

TOTAL

. _,. "/·4,'W~f'a<,,% ,
~'//-:r,.;6..?£
Michael A. Lasher, Jr.
/J/f

'

0· /

,, -"'J

Administrative Law Judge

Distribution:

Mary Witherowu Esqov i.\'.largaret Terryv Esq.u Office
the Solicitor UoS. Department of Labore 525 Griffin Street, Suite 50lu
Dallasu TX 75202

(Certified Mail)

Ray D. Gardner, Esq., John Paul, Esq., THE PITTSBURG & MIDWAY
COAL MINING COMPANY, 6400 South Fiddler's Green Circle, Englewoodu CO 80111-4991
(Certified Mail)
Mr. Robert Butera, International Health and Safety Representative
for UMWA District 13u 228 Lea Street, Trinidad, CO 81082
(Certified Mail)

ek

563

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

~PR

11991

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 90-120 ·
A.C. No. 29-00096-03541

v.

McKinley Mine

PITTSBURG AND MIDWAY COAL
MINING COMPANY,
Respondent
DECISION
Appearances:

Mary Witherow, Esq., Margaret Terry, Esq., Office
of the Solicitor, U.S. Department of Labor, Dallas,
Texas,
for Petitioner;
Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Colorado,
for Respondent.

Before:

Judge Lasher

This is one of nine dockets which were consolidated for
hearingv eight of which were either fully or partially settled
after commencement of the hearingo
The settlements were approved
from the bench on the record"
This docket involves two Section 104(d)Cl) ("Unwarrantable
Failure") Withdrawal Orders"
The parties, as to Order No.
3414833, agree that the "Unwarrantable Failure" classification
should be deleted and the nature and issuance authority of this
enforcement document changed from a Section 104(d)(l) order to a
Section 104(a) Citation with the "Significant and Substantial"
designation to remain.
In view of such modif icationf the penalty
is to be reduced from $1,100 to $371.
As to Order No. 3414834f such is to be affirmed and Respondent agrees to pay in full MSHA's administrative level assessment
of $1,100.
The two penalties agreed to and above indicated are here
assessed.

564

ORDER
1. Withdrawal Order No. 3414833 is MODIFIED to change
its nature and issuance authority from a Section 104(d)(l) "Unwarrantable Failure" Order to a Section 104(a) Citation with the
"Significant and Substantial" designation to remain.
2.

Withdrawal Order No. 3414834 is AFFIRMED.

3. Respondent SHALL PAY to the Secretary of Labor within 30 days from the issuance date of this decision the penalties
hereinabove assessed in the total sum of $1,471.00

~~;.&/£ 4 ~/k-<:, I!·-·

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Mary Witherowu Esq"u Margaret Terry, Esq., Office of the Solicitoru U.S. Department of Laboru 525 Griffin Streetv Suite 50lv
Dallasu TX 75202 (Certifi
Mail)
Ray D. Gardner, Esq., John Paul, Esq., THE PITTSBURG & MIDWAY
COAL MINING COMPANY, 6400 South Fiddler's Green Circle, Englewood, CO 80111-4991 (Certified Mail)
Mr" Robert Butero, International Health and Safety Representative
for UMWA District 13u 228 Lea Street, Trinidad, CO 81082
(Certified Mail)

ek

565

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

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

11991
CIVIL PENALTY PROCEEDING

.

v.

Docket No. CENT 90-128
A.C. No. 29-00096-03543
McKinley Mine

PITTSBURG & MIDWAY COAL
MINING COMPANY,
Respondent
DECISION
Appearances:

Mary Witherow, Esq., Margaret Terry, Esq., Office
of the Solicitor, U.S. Department of Labor, Dallas,
Texas,
for Petitioner;
Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Colorado,
for Respondent.

Before:

Judge Lasher

This is one of nine dockets which were consolidated for
ingv eight of which were either fully or partially settled
ter commencement of the hearingo
The settlements were approved
from the bench on the recordo
This docket involves three Section 104(d)(l) Withdrawal
Orders. As to Order No. 3413365, the parties agree that the
"Unwarrantable Failure 11 character of the Order should be deleted
and the nature and issuance authority of this document changed
from a Section 104(d)(l) order to a Section 104(a) Citation with
the 11 Signif icant and Substantial 11 designation to remain. In view
of such modification, the penalty is to be reduced to $371.
As to Order No. 3413371, such is to be modified from a Section 104(d)(l) Order to a Section 104(d){l) Citation and Respondent agrees to pay MSHA's administrative level of $1350 in full.
As to Order No. 3414745, there are no modifications and
Respondent agrees to pay Petitioner MSHA's administrative level
penalty of $1600 in full.
The three penalties agreed to and above indicated are here
assessed.

566

ORDER
1. Withdrawal Order No. 3413365 is MODIFIED to change
its nature and issuance authority from a Section 104(d)(l) "Unwarrantable Failure" Order to a Section 104(a) Citation with the
"Significant and Substantial" designation to remain.
2. Withdrawal Order No. 3413371 is MODIFIED to change
its nature from a Section 104(d)(l) Order to a Section 104Cd}(l)
Citation.
3. Respondent SHALL PAY to the Secretary of Labor within 30 days from the issuance date of this decision the penalties
hereinabove assessed in the total sum of $3321.

'l~~ea ,~&£/~~Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Mary Witherow, Esq., Margaret Terry, Esq., Office of the Solicitorv UoSo Department of Laboru 525 Griffin Street, Suite 501,
lasg TX 75202 {Certified Mail)
Ray Do Gardner, Esqov John Paul, Esq., THE PITTSBURG & MIDWAY
COAL MINING COMPANY, 6400 South Fiddler's Green Circle, Englewood, CO 80111-4991
(Certified Mail)

Mro Robert Buterou International Health and Safety Representative
for UMWA District 13u 228 Lea Street, Trinidad, CO 81082
(Certified Mail)

ek

567

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

APR 1 i991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 90-131
A.C. No. 29-00095-03557

v.

York Canyon Mine

PITTSBURG & MIDWAY COAL
MINING COMPANY,
Respondent
DECISION
Appearances:

Mary Witherow, Esq., Margaret Terry, Esq., Office
of the Solicitor, U.S. Department of Labor, Dallas,
Texas,
for Petitioner;
Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Colorado,
for Respondent.

Before:

Judge Lasher

This is one of nine dockets which were consolidated for
hearingu eight of which were either fully or partially settled
after commencement of the hearingo
The settlements were approved
from the bench on the recordo
The only Citation involved in this docket, No. 3077050, was
not settled, but was fully litigated at a hearing 1 in Albuquerqueu New Mexico 8 on February 12, 1990. Both parties were well
represented by counsel at this hearingo
Midway of hearing Respondent conceded the occurrence of the
violation chargedu narrowing the issues to whether the violation
was u•signif icant and Substantial" as charged by the Inspector u
and the appropriate amount of penaltyo
Based on stipulations {Tr. 29-30, 35), there is no issue as
to the Commission's jurisdiction to adjudicate this matter.
Based thereon, I also find that Respondent at material times conducted a large coal mining operation {both surface and underground) at its York Canyon Mine, that it had approximately 90

1

Tr. 44

568

mine safety violations during the two-year period preceding the
occurrence of the instant violation in January 1990, that its
ability to continue will not be jeopardized by payment of a
penalty for this violation, and that it proceeded in good faith
after notification by MSHA of the subject violation to promptly
abate the same. Thus, the remaining mandatory penalty considerations are "negligence" and "gravity." Further, if the "Significant and Substantial" designation is not sustained by the evidence, such will also be considered in the factual mosaic underpinning an appropriate penalty determination.
Based on the preponderant reliable and substantial evidence
of record, I make the following findings:
1. Citation No. 3077050 was issued on February 8, 1990,
by MSHA Inspector Melvin H. Shively CTr. 42-45) charging a violation of 30 C.F.R. § 77.400Cc) 2 as follows:
The guard at the tail.roller for the coal collecting belt main floor coal preparation plant was not
extended a distance sufficient to prevent a person
from coming in contact, in that the guard provided
was extended only 20 inch(es) and would allow a
person room to reach behind the guard.
2. The violation cited, such having been conceded by
Respondent (Tr. 82-83), is found to have occurred.
3.

The violation was not "Significant and Substantial."

DISCUSSION

A violation is properly designated as being of a significant
and substantial nature if 0 based on the particular facts surrounding the violation, there exists a reasonable likelihood that
the hazard contributed to will result in an injury or illness of

2

30 C.F.Ro

§

77o400(c) provides:

Guards at conveyor-drive, conveyor-head, and
conveyor-tail pulleys shall extend a distance
sufficient to prevent a person from reaching behind the guard and becoming caught between the
belt and the pulley.

569

a reasonably serious nature. Cement Division, National Gypsum,
3 FMSHRC 822, 825 (April 1981); Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984). The four essential elements necessary to sustain
a significant finding as stated in Mathies are:
(1) the underlying violation of a mandatory standard; (2) a discrete safety hazard, i.e., 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.
Here, the first requirements has been conceded.
The record
is also quite clear that, because of the inadequacy of the guard,
a hazard existed, in that a person could become "caught" in a
pinchpoint (Tr. 45-48, 52, 60-61, 64, 77) because of the "exposure" (Tr. 46, 51, 91) to the moving machine part, the tailroller
(Tr. 45, 46, 47, 55, 60).
This, as the record establishes, constitutes a safety hazard.
CT~. 48, 49, 60-61).
The injury, should a person have come into contact with the
pinchpoint, would have been of "a reasonably serious nature,"
i.e., loss of a hand or arm.
(Tr. 48, 49, 50, 51). 3
The question remains, however, whether there was "a reasonable likelihood" that the hazard contributed to by the violation
would result in an injury.
I find that there was not and thus
that MSHA did not sustain its burden of meeting the four-prong
Mathies "significant and substantial" test.
The Petitioner's witness at first indicated that the guard's
insufficient extension was such that a person "could" become
caught (Tr. 45) and that it did riot prevent a person "from reaching behind the guard and becoming caught, for whatever reason.~
(Tr. 46). And again, he viewed the condition as such that it allowed a person "the opportunity to reach in there, for whatever
reason."
(Tr. 47, 48).
The Inspector's opinions as to likelihood were not convincing.
The following colloquy is
illustrativeg
Q.

Do you have an opinion ••• as to the possibility that an employee
could be injured if the condition you described
is not corrected?
000

3

It is concluded at this juncture that elements "l," "2," and
"4" of Mathies, supra, have been met by MSHA.

570

A.

I don't have an opinion, but if it's not corrected, the hazard is there, and for whatever reason, that person could get
into it.
(Tr. 49).

The Inspector was next asked to "rate" the likelihood of injury occurring. His response again does not fulfill MSHA's burden on the issue:
"It is real likely that if it is not corrected, the potential is there." (Emphasis added). While the Inspector did here express a specific opinion on the issue using
the words 11 reasonably likely," the mere use of this statutory
phrase is not an open sesame for unlocking the door to a significant and substantial finding.
When so used without supporting
rationale, or as here with a simultaneous invocation of remoteness, it constitutes at best no more than the articulation of the
ultimate legal conclusion urged to be drawn.
It appears that a person would actually have to reach around
the guard to become exposed to being caught in the pinchpoint.
CTr. 46-48, 60, 61). The substantial evidence also supports the
conclusion that it was not likely that employees would come into
contact with the pinchpoint while the belt was running.
(Tr. 58,
62, 84-88, 91, 92, 97). The "Significant and Substantial" classification of the violation will be stricken.
In view of the fact that a hazard did exist which, had it
come to fruition, would have caused serious injuries, I find this
to be a serious violation (Tr. 48, 49, 54-57, 60, 63} even though
not a "significant and substantial" violation as that phrase is
construed in mine safety precedent.
The Inspector 0 s finding of a "moderate" degree of negligence
on the part of Respondent was not challenged, and in view of the
fact that this was a visible and obvious violative conditionv
such finding is found warranted.
A penalty of $40 is found appropriate and is here assessed.
ORDER

lo Citation Noc 3077050 is MODIFIED to delete the
•significant and Substantial" designation thereon and to change
paragraph 10 A thereof pertaining to "Gravity 11 from 11 Reasonably
Likely" to "Unlikely."

2. Respondent SHALL PAY to the Secretary of Labor,
within 30 days from the issuance date of this decision, the sum
of $40 as and for the civil penalty above assessed.

"i~...t! ~ ~~/ fi .

'Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Mary Witherow, Esq., Margaret,Terry, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 501,
Dallas, TX 75202
(Certified Mail)
Ray D. Gardner, Esq., John Paul, Esq., THE PITTSBURG & MIDWAY
COAL MINING COMPANY, 6400 South Fiddler's Green Circle, Englewood, co 80111-4991
(Certified Mail)
Mr. Robert Butero, International Health and Safety Representative
for UMWA District 13, 228 Lea Street, Trinidad, CO 81082
(Certified Mail)

ek

572

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

APR t 1991

...

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

CIVIL PENALTY PROCEEDING

.

Docket No. CENT 90-53
A.C. No. 29-00224-03556

v.

Cimarron Mine

PITTSBURG & MIDWAY COAL
MINING COMPANY,
Respondent
DECISION
Appearances:

Mary Witherow, Esq., Margaret Terry, Esq., Office
of the Solicitor, U.S. Department of Labor, Dallas,
Texas,
for Petitioner;
Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Coiorado,
for Respondent.

Before:

Judge Lasher

This is one of nine cases which were consolidated for hearing, eight of which were either fully or partially settled after
commencement of the hearingo
The settlements were approved from
the bench on the recordo
The subject docket involves one Section 104(a) Citation, No.
On the basis of evidentiary considerationsv the Petit.ioner's motion t.o withdraw its prosecution was granted on the
record with the understanding that this Citation would be ordered
vacated. Such determination is here confirmed.

29307770

ORDER
Citation No. 2930777 is VACATED.

~~pt;~~t)t

Michael A. Lasher, Jr.
Administrative Law Judge

573

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

22041

APR 11991

ROCHESTER & PITTSBURGH COAL
COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. PENN 88-284-R
Order No. 2888902; 7/14/88

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

Docket No. PENN 88-285-R
Order No. 2888903; 7/14/88

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

CIVIL PENALTY PROCEEDING

Greenwich Collieries
No. 2 Mine
Mine ID 36-02404

Docket No. PENN 89-72
A.C. No. 36-02404-03740

v.
Greenwich Collieries
No. 2 Mine

ROCHESTER & PITTSBURGH COAL
COMPANY,
Respondent

DECISION UPON REMAND
Before~

Judge Maurer

These cases are before me upon remand by the Commission to
reinstate the two originally issued section 104(d) (2) withdrawal
orders that I previously modified to section l04(a) citations and
to reconsider an appropriate civil penalty in light of that fact.
In my original decision, reported at 11 FMSHRC 1978 (October
1989) (ALJ) r I found as a fact that the required examinations
were not made and affirmed ·the two cited S&S violations of 30
C.F.R. § 75.305, but deleted the unwarrantable failure findings
based on my holding that the intentional misconduct of the
responsible employee, a rank-and-file miner, was not imputable to
the mine operator. The Commission has reversed me on that point
of law, holding that although he was a rank-and-file miner, he
was the agent of the operator for the purpose of conducting the
statutorily required examinations. And his failure to accomplish
them, even though this was intentional wrongdoing on his part, is
imputable to the operator for unwarrantable failure purposes, as
well as for negligence findings pertinent to the assessment of
civil penalties in these cases.

574

Accordingly, considering the entire record made in these
cases, including the Commission's Decision of February 5, 1991,
and taking into account the requirements of section llO(i) of the
Act, I conclude and find that a civil penalty assessment of $1100
for each of the two violations found herein is appropriate.
ORDER
It is ORDERED that Order Nos. 2888902 and 2888903
(previously modified to § 104(a) citations in error) ARE
AFFIRMED.
It is further ORDERED that the operator pay $2200 within 30
days from the date of this decision.

Distribution:
Joseph A. Yuhas, Esq., Greenwich Collieries, P.O. Box 367,
Ebensburg, PA 15931 (Cer~ified Mail)
Paul D. Inglesby, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market St., Room 14480, Philadelphia, PA 19104
(Certified Mail)

ml

575

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 90-398
A.C. No. 15-16162-03531

v.

Mine No. 1
BEECH FORK PROCESSING, INC.,
Respondent
DECISION
Appearances:

Before:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor for the Secretary of Labor
(Secretary); Ted McGinnis, Vice President, Beech
Fork Processing, Inc., for Respondent (Beech Fork).

Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks civil penalties for thirteen alleged
violations of mandatory health and safety standards at the
subject mine.
Pursuant to notice the case was called for hearing
in Prestonsburg, Kentucky, on February 12, 1991. Kellis Fields
and Thomas Goodman, both Federal coal mine inspectors, testified
on behalf of the Secretary. Ted McGinnis testified on behalf of
Beech Fork. The parties waived their right to file post-hearing
briefs,
Based on the entire record and the contentions of the
parties, I make the following decision.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I

PRELIMINARY FINDINGS
Beech Fork produces approximately 2,000,000 tons of coal
annually, approximately 1,000,000 of which is produced at the
subject mine.
It employs approximately 100 persons. The subject
mine had a history of 188 paid violations during the 24 month
period prior to the violations involved in this proceeding.
Five
were violations of 30 C.F.R. § 75.400; seven are violations of
§ 75.llOOi fourteen are violations of § 77.400.
Beech Fork is a
medium sized operator. Its history of prior violations is not
such that penalties otherwise appropriate should be increased

576

because of it. Ted McGinnis testified that Beech Fork which
began operation in 1985 has lost money each year.
He testified
that it suffered a financial loss during 1990, but no
documentation was offered to show Beech Fork's financial
situation. The evidence does not establish that penalties which
may be assessed in this proceeding will have any effect on its
ability to continue in business. The Secretary has stipulated
that in the case of each violation involved herein, Beech Fork
demonstrated good faith in attempting to achieve rapid compliance
after notification of the violations.
The subject mine was from 9 feet to 11 feet high.
It is
generally dry from October to January or February and generally
wet or moist in the spring.
Inspector Fields testified that the
No. 1 mine was a ''good looking operation." He stated that he
always received good cooperation from mine management. The mine
has a large rock content; from 50 percent to 60 percent of its
mined product is rejected as rock.
II

ACCUMULATIONS
CITATION 3364810
On April 12, 1990, Federal Coal Mine Inspector Kellis Fields
issued a section 104(a) citation alleging a violation of 30
C.F.R. § 75.400 because of an accumulation of float coal dust
inside a belt control box.
30 C.F.R. § 75.400 provides that coal
dust including float coal dust deposited on rock dusted surfaces
and loose coal shall not be permitted to accumulate in active
workings or on electric equipment therein. The control box
received 440 volt ac powerr There were electrical connections
inside the box including contactors and breakers. The evidence
of the accumulations is uncontradicted.
It posed a hazard of
ignition or explosion, which could result in fire and smoke in
the entry. Miners travel in the entry and it was adjacent to a
secondary escapeway.
I conclude that the violation charged is
established. The dampness of the area reduces the hazard
somewhatv but float coal dust can burn on water. The hazard is
also reduced because of the large rock component in the mined
product, thus reducing the combustibility of the dust.
Nevertheless, I conclude that the violation was serious.
A violation is properly designated as significant and
substantial if it is established that the hazard contributed to
will be reasonably likely to result in injury to a miner.
United
States Steel Mining Company, 7 FMSHRC 1125 (1985).
The hazard
here is an ignition or explosion.
Float coal dust is highly
combustible and, in the presence of an ignition source, an
ignition or explosion is reasonably likely to occur and to cause

577

serious injuries. Therefore, I conclude that the violation was
properly designated as significant and substantial.
Based on the criteria in section llO(i) of the Act, I
conclude the $250 is an appropriate penalty.
CITATION 3365506
on May 8, 1990, Inspector Fields issued a section 104(a}
citation alleging a violation of 30 C.F.R. § 77.202 because of an
accumulation of loose fine coal and coal dust, including float
dust on the first floor of 'the preparation plant. The
accumulation ranged from 1 inch to 4 inches deep. Sources of
ignition present included belt rollers and conveyors which could
become stuck or frozen and result in friction, and other belt
drives and motors in the prep plant which could overheat or "go
to ground. 11 The violation is established by the evidence. As
was the case with respect to citation 3364810, supra, I conclude
that an accumulation of float coal dust in the presence of
ignition sources is very hazardous and reasonably likely to
result in injury.
I conclude_that the violation was properly
designated as significant and substantial, and that an
appropriate penalty for the violation is $225.

III
FIRE SUPPRESSION SYSTEMS
CITATION 3364811
On April 12, 1990, Inspector Fields issued a section 104(a)
citation alleging a violation of 30 C.F.R. § 75.1100-3 because
the deluge fire suppression system on the belt line was
inoperative. The light and alarm were working, but water did not
ow through the system. The standard requires that all
firefighting equipment shall be maintained in a usable and
operative condition. That the fire suppression system cited here
was not maintained in an operative and usable condition was not
contradicted. A violation was established. The hazard to which
this violation contributes is fire and smoke which could travel
inby from the belt conveyor to the section. A fire could result
from stuck rollers, friction, or coal spillage including float
coal dust. The inspector testified that these are common
occurrences in coal mines. However 1 there is no evidence of any
such conditions in the area of the cited violation. The evidence
does not establish that the hazard contributed to is reasonably
likely to result in serious injury. The citation was not
properly designated as significant and substantial. See
States Steel Mining Company, supra. However, the violation was
serious and resulted from Beech Fork's negligence.
I conclude
that an appropriate penalty for the violation is $150.

578

CITATION 3364813

On April 12, 1990, Inspector Fields issued a section 104(a)
citation alleging a violation of 30 C.F.R. § 75.1101-2 because
the deluge type fire suppression system for the 3A belt conveyor
drive was inadequate in that it had only 24 feet of branch lines,
whereas 50 feet is required. The evidence establishes the
violation.
It was not serious, and unlikely to result in injury.
Twenty dollars ($20) is an appropriate penalty for the violation.
CITATION 3364621

On April 16, 1990, Inspector Fields issued a section 104(a)
citation charging a violation of 30 C.F.R~ § 75.1100-3 because
the dry chemical type fire suppression system on a shuttle car
was inoperative. The hoses going to the tank were broken off.
The condition would be obvious to anyone checking the equipment.
The traction motor on the shuttle car has electrical components
and the cable going back to the power center carries 440 volt ac
power.
If the traction motor shorted out and ignited
accumulations of oil; grease or coal dust, or a cut in cable
caused a spark, a fire could result, which could cause smoke
inhalation injuries to miners on the section. However, there is
no evidence of any oil, grease or coal dust, and no evidence of
any electrical problems or defects in the motor or cable.
Therefore, the evidence fails to show that the hazard contributed
to was reasonably likely to result in injuries to miners. The
citation was not properly designated as significant and
substantial. The violation was serious, however, and resulted
from Beech Fork's negligence. I conclude that an appropriate
penalty is $150.
IV
GUARDING VIOLATIONS
CITATION 3364812

On April 12, 1990, Inspector Fields issued a section 104(a)
citation alleging a violation of 30 C.F.R. § 75.1722 because a
belt conveyor drive was not adequately guarded. The guard did
not extend to the discharge roller. The roller, 1-1/2 inches to
2 inches in diameter, was located in a position where a miner
could reach in and be caught between the belt and the roller.
Respondent does not deny that the conveyor drive was inadequately
guarded.
It asserts that many of the conditions cited as
guarding violations were accepted by prior inspectors. This is
not a defense. The United States Court of Appeals stated in
Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416
(10th Cir. 1984):

579

as a general rule those who deal with the
Government are expected to know the law and may not
rely on the conduct of government agents contrary to
law . • .
o

•

•

*

*

*

Particularly where mandatory safety standards are
concerned, a mine operator must be charged with
knowledge of the Act's provisions and has a duty to
comply with those provisions.
Injuries commonly result from miners getting hand, arm or
clothing caught in unguarded rollers. The guarding violation
cited here was reasonably likely to result in a serious injury.
It was properly designated .significant and substantial. It was
serious and resulted from Beech Fork's negligence.
I conclude
that an appropriate penalty based on the criteria in section
llO(i) of the Act is $300.
CITATION 3364814

On April 12, 1990, Inspector Fields issued a section 104(a)
citation alleging a violation of 30 C.F.R. § 75.1722 because a
guard at the No. 3A belt conveyor drive was not adequate in that
it did not extend out far enough to prevent a miner from reaching
in and becoming caught between the belt and the discharge roll~r.
The evidence establishes that the cited violation existed. The
violation is similar to that charged in Citation 3364812.
It was
properly designated as significant and substantial in that the
hazard contributed to was likely to result in serious injury.
Based on the criteria in section llO(i) of the Act, I conclude
that $300 is an appropriate penalty for the violation.
CITATION 3365508

On May 8, 1990, Inspector Fields issued a section 104(a)
citation charging a violation of 30 C.F.R. § 77.400 because a
guard was not provided for 'the discharge roller on the recovery
belt. No guard had ever been provided at this point. The roller
was next to a confined walkway and is required to be examined
every day. A guarding violation is likely to result in a miner
getting his/her hand, arm or clothing caught on moving machinery
and suffering serious injury. The violation was established, and
was properly designated as significant and substantial. The
violation was obvious, and Beech Fork's n~gligence is high. An
appropriate penalty for the violation under the criteria in
section llO(i) is $325.

580

CITATION 3365509

On May 8, 1990, Inspector Fields issued a section 104(a)
citation alleging a violation of 30 C.F.R. § 77.400 because of an
inadequate guard at the tail roller for the stacker belt. The
guard did not extend out far enough to prevent a miner from
reaching in to a pinch point. The pinch point opening was from
12 inches to 14 inches. A serious violation was established.
It
was significant and substantial. A penalty of $300 is
appropriate.
CITATION 3365511

On May 8, 1990, Inspector Fields issued a section 104(a)
citation alleging a violation of 30 C.F.R. § 77.400 because a
hole had been cut in the center of a guard on an air compressor
pulley exposing the pulley to a miner's hand. The hole had
apparently been cut in the guard to enable a miner to grease the
pulley. Respondent should h~ve been aware of it. The violation
is established; it was significant and substantial since an
injury was likely to result. A penalty of $250 is appropriate.

v
OTHER VIOLATIONS
CITATION 3365510

On Mays, 1990, Inspector Fields issued a section 104(a)
citation charging a violation of 30 C.F.R. § 77.205 because of
stumbling hazards on the concrete floors and walkways throughout
the shop area of the preparation plant. The hazards included
engine partsg motor blocks 1 electrical cords, and oil and grease
covered
sweeping compound. Maintenance workers and foremen
travel regularly in the area. The same violation had previously
been cited in the same area. The violation is established by the
preponderance of the evidence. It was reasonably likely to
result
injuryo Therefore it was properly designated as
significant and substantial. Two hundred dollars ($200) is an
appropriate penalty.
CITATION 3365512

On May 8 1 1990 1 Inspector Fields issued a section 104(a)
citation alleging a violation of 30 C.F.R. § 77.410 because of an
inoperative back up alarm on a water truck which operated on
haulage roadways to keep down the dust. The truck was a Mack
coal truck on which a water tank had been installed.
It had 10
wheels, was 7 to 8 feet wide and the driver had blind spots to
his rear. There were other trucks in the area, and miners
frequently worked or walked on and near the roadway. The water
truck was operated 3 or 4 times per day. It had an alarm but it

581

was inoperative when the inspector tested it. A violation was
established. Because many people were in the area, the violation
was reasonably likely to result in injury and therefore was
properly designated significant and substantial. I conclude that
$200 is an appropriate penqlty.
CITATION 3365407
On June 6, 1990, Federal Coal Mine Inspector Thomas E.
Goodman issued a section 104(a) citation for a violation of 30
C.F.R. § 77.1710(d) because two employees working under a
highwall installing a canopy were not wearing hard hats. The
standard requires that hard hats be worn where falling objects
may create a hazard. Cracks and loose rock were present in the
highwall and presented a hazard of falling objects. The
violation was established. A roof fall from the same highwall
had occurred on May 18, 1990, entrapping and injuring 2 miners
who were working in a portal under a canopy. The violation cited
here was likely to result in serious injuries to the two miners.
It was properly designated aa~ignificant and substantial. Two
hundred dollars ($200} is an appropriate penalty for the
violation.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Citations 3364810, 3365506, 3364812, 3364814, 3365508,
3365509, 3365511, 3365510, 3365512 and 3365407 are AFFIRMED as
issued included the designation in each citation of a significant
and substantial violation.
2o

Citation 3364813 is AFFIRMED.

3o
Citations 3364811 and 3364621 are MODIFIED to remove the
designation of a significant and substantial violation and, as
modified, are AFFIRMED.
4o
Respondent shall, within 30 days of the date of this
dee ion pay the following civil penalties for the violations
found herein~

CITATION

30 CFR STANDARD

AMOUNT

3364810
3365506
3364811
3364813
3364621
3364812
3364814

75.400
77.202
75.1100-3
75.1100-2
75.1100-3
75.1722
75.1722

$ 250
225
150
20
150
300
300

582

3365508
3365509
3365511
3365510
3365512
3365407

77.400
77.400
77.400
77.202
77.410
77.1710(d)

325
300
250
200
200
200
$2870

Distribution:
Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Ted McGinnis, Vice President, Beech Fork Processing, Inc., P.O.
Box 190, Lovely, KY 41231 (Certified Mail)
slk

58 3

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF· ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 90-403
A.C. No. 15-14492-03570

v.
Docket No. KENT 90-426
A.C. No. 15-14492-03571

PYRO MINING COMPANY,
Respondent

Baker Mine
Docket No. KENT 90-404
A.C. No. 15-13920-03675
Docket No. KENT 90-424
A. C. No. 15-13920-03677
Docket No. KENT 90-425

A. C. No. 15-13920-03678
No. 9 Wheatcroft Mine
DECISION
Appearances~

Before~

w. F. Taylor, Esq., U.S. Department of Laborv
Office of the Solicitor, Nashville 1 Tennessee,
for Petitioner~
William Craft, Safety Consultant, Madisonville,
Kentucky, for Respondent.

Judge Melick

These cases are before me upon petitions for civil penalties
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, of 1977, 30 u.s.c.
§ 801
seq. / the "Act, iu in which the Secretary has proposed
civil penalties for alleged violations by Pyro Mining Company
(Pyre) of regulatory standards. The general issue before me is
whether Pyro committed the violations as alleged and, if so, the
amount of civil penalty to be assessed.
Docket No. KENT 90-403
At hearings the parties submitted a proposal for settlement
of the two citations at issue in this case in the amount of
$156 -- a reduction in penalty of $78. The motion was granted at

584

hearing on the basis of the Secretary's representations
supplementing the pleadings in the case. Under the circumstances
the proposal for settlement is approved and the corresponding
penalty will be incorporated in the order following this
decision.
Docket No. KENT 90-404
Citation No. 3420686 was also the subject of a motion for
settlement at hearing in which the operator agreed to pay the
proposed penalty of $241 in full. This motion was also granted
at hearing based on the representation submitted. Accordingly
this motion for settlement is also approved and the corresponding
penalty will be incorported in the order following this decision.
Citation No. 3420699 alleges a "significant and substantial"
violation of Pyro's roof control plan under the standard at 30
C.F.R. § 75.220 and charges as follows:
Brows of a roof fall on No. 2 unit had only 3
metal straps installed. Roof control plan dated
December 7, 1989, shows a minimum of 4 straps when
these are used. Shown in sketch on p.8. Two brows
were like this.
It is not disputed that the relevant roof control plan
required at least four straps for roof support in the cited areas
(See Government Exhibit No. 9).
In its post hearing brief Pyro does not dispute the
violation as charged but maintains that it was not a "significant
and substantial" or serious violation. In its brief it states as
follows:
Government Exhibit No. 8 shows the cavity
encompassing six (6) brows. Four (4) straps on each
would total twenty-four (24) straps. Twenty-two (22)
had been installed, or 91+ percent in addition to Mr.
Pyles testimony that additional timbers had been
installed in the crosscuts. The faces of the entries
were inactive. Rooms were being worked as shown on the
east side of the sketch, Government Exhibit No. 8.
Some of the rooms being worked were outby the fall
area. Two (2) intake entries were behind the permanent
line of stoppings. One (No. 2) was completely open,
and if necessary, could be traveled in lieu of No. 1.
The law requires at least one intake escapeway (Sec.
75.1704 30 CFR). Pyro provided two (2) in this case.
It is very unlikely that twelve (12) people would
travel No. 1 entry; beneath the cavity at one time.
According to the Commission Ruling in the Mathies
decision, we respecfully question the S&S designation.

585

Inspector Jerrold Pyles of the Federal Mine Safety and
Health Administration (MSHA) who issued the citation, testified
that he found the violation to be "significant and substantial"
based in part on the history of roof falls in the cited area and
the concurrent existence of another serious roof control
violation i.e. excessively wide areas in an area of proven
unstable roof (See Citation No. 3420700 discussed infra.). These
considerations in an area designated as the primary escapeway
exposed not only the twelve miners who would 'likely use this
designated and marked escapeway but also the weekly examiner to
roof fall hazards. Under the circumstances the violation clearly
meets the criteria for a "significant and substantial" and
serious violation. See Mathies Coal Co. 6 FMSHRC 1 (1984). The
inspector's designation of this violation as resulting from
moderate negligence is not challenged. Under the circumstances
and considering the criteria under section llO(i) of the Act I
find the proposed penalty of $400 to be appropriate.
Citation No. 342Q700 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. § 75.203 and charges as
follows:
Additional roof support was not installed where
widths exceeded what is specified in roof control
plans. The widths stated is [sic] 20 feet; the entry
measured was found to be 24 feet over a 30 foot
distance. This was in No. 2 Unit ID 002, plan in
effect dated 12/7/79.
The cited standard, 30 C.F.R.
subsection (e) as follows:

§

75.203, provides in

Additional roof support shall be installed where( l) the width of the opening specified in the roof
control plan is exceeded by more than 12 inches; and
(2) the distance over which the excessive width exists
is more than five feet"
It is undisputed that the relevant roof control plan
provides that the entries shall be no more than 20 feet wide
(Exhibit G-9r p.6). It is also undisputed that the cited 24 foot
widths herein existed over 30 feet linear distance. This
admitted violation was found in the area also cited for
inadeqaute strapping and with a history of roof falls. As
Inspector Pyles observed, the combination of roof control
violations in this area with a history of roof falls and unstable
roof in the designated escapeway with 12 miners working on the
unit, warrants a finding that this violation is also "significant
and substantial" and serious.
In its post hearing brief Pyre again admits the violation
but maintains that the violation was neither "significant and

586

substantial" nor serious.

It argues as follows:

Government Exhibit No. 8 shows that the faces of
the entries were inactive, and rooms on the east side
of the sketch, some outby the wide places, were being
worked. Also, two (2) entries in intake air were
present behind the line of permanent stoppings, making
it unnecessary to travel the No. 1 entry at anytime.
It would be highly unlikely that twelve (12) people
would be in an area, thirty (30 1 ) feet in length at the
same time. We do not consider this as an S&S citation
according to the Commission ruling in the Mathies
Decision.
Pyro's argument does not however take into consideration the
evidence that the entries could be reworked at any time and that
the subject area was the designated primary escapeway and subject
to weekly examinations. Since the area was marked by reflectors
as the designated escapeway it is likely therefore that miners
would use that route in the event of an emergency. Under the
circumstances I find that the violation indeed is "significant
and substantial" and quite serious. Mathies Coal Co., supra.
The inspector's findings of moderate negligence are not
disputed and they are supported by the record.
Inspector Pyles
noted that timbers had previously been set in the excessively
wide areas to bring the widths within the required dimensions
however those timbers had become dislodged for unknown reasons
and were lying on the mine floor.
Considering all the criteria
under section llO(i) of the Act I find a penalty of $400 to be
appropriate.
Docket No. KENT 90-424
The one citation at issue in this case, Citation No.
3545766, alleges a "significant and substantial" violation of the
standard at 30 C.F.R. § 75.503 and charges that:
"the foot
control switch cover (step flange) had an opening in excess of
.006 of an inch measured with .007 gauge on the S-39 shuttle car
located on No. 3 Unit. 11
The cited standard, 30 C.F.R. § 75.503, provides that:
[t]he operator of each coal mine shall maintain in permissible
condition all electric face equipment required by Section 75.500,
75.501, 75.504 to be permissible which is taken into or used inby
the last open cross cut of any such mine:." It is not disputed in
this case that the cited shuttle car was the type of equipment
required to be maintained in a permissible condition so long as
it is equipment which is "taken into or used inby the last open
cross cut".
11

In its post hearing brief Pyro argues that the cited shuttle

587

car "was not in or inby the last open crosscut" and presumably
therefore there was no violation of the cited standard. In its
Answer filed in these proceedings however the operator made the
following admissions:
This is a valid citation, however, it should be
non S&S. In order for there to be a likelihood of an
explosion, the car would have to operate in an
explosive environment. The haul roads were wet down
and the only time the car was inby the last open
crosscut, it was behind a loader with an operating
methane detector.
The mine operator is bound by such admissions. The cited
shuttle car was also energized when discovered by Inspector Pyles
and there was sufficient evidence from which he could, in any
event, have inferred that it was intended for use inby. See
Secretary v. Solar Fuel Company, 3 FMSHRC 1384 (1981). The
citation is accordingly affirr(led.
I have evaluated the mitigating arguments in Pyre's post
hearing brief, however I find the testimony of Inspector Pyles to
be more persuasive. According to Pyles an opening in the switch
cover of .007 inch would allow sparks or an arc to enter the mine
atmosphere and thereby cause an explosion in the presence of
certain levels of methane or coal dust. Bottle samples also
demonstrated that methane is indeed liberated at this mine. The
record also shows that a few months preceding the citation at bar
there had been a coal dust or methane explosion at this mine.
Inspector Pyles also observed that the cited shuttle car was
energized 9 that methane· can suddenly inundate an area without
warning and that even though there may have been a 11 methane
detectorH on the loading machine (which is ordinarily operated in
conjunction with the shuttle car) it would not automatically deenergize the shuttle car. Considering the credible evidence I
find that indeed the violation was "significant and substantial"
and serious.
The inspector 1 s findings of moderate negligence are not
disputed. Considering the criteria under section llO(i) I find
that the proposed penalty of $275 is indeed appropriate.
Docket No. KENT 90-425
The one citation at issue in this case, Citation No.
3420625, alleges a "significant and substantial" violation of the
standard at 30 C.F.R. § 75.1316(b) and charges as follows:
Boreholes were apparently not cleared and their
depth and direction determined due to two (2) bore
holes in adjacent faces had apparently drilled through

588

into each other due to when blasting the left x-cut the
blast came through the opposite side bore hole,
injuring John Parker, section foreman in the adjacent
entry. No. 2 unit, ID 002. Event took place on 3-1290. Cutting machine operator was also in same entry as
Parker but not injured.
The cited standard, 30 C.F.R. § 75.1316(b), provides that
"[b]efore loading bore holes with explosives, each bore hole
shall be cleared and its depth and direction determined."
Company representative David Sutton reported the blasting
accident to Inspector Pyles on March 12, 1990, and Pyles made his
inspection on the following day. According to Pyles the citation
was issued on April 5, 1990, on orders from the MSHA Assistant
District Manager and from his supervisor and was based upon the
accident report filed by Pyro safety manager Sutton
(Exhibit G-17). That report states in part that: "adjacent
entry drill holes met -- employee failed to come out of place
when being flagged."
Inspector Pyles acknowledged at hearing that Sutton also
told him that the shot firer reported that he had indeed checked
the direction and depth of the drill holes before loading the
holes with explosives. Pyles also acknowledged that everything
could have been done in accordance with the cited regulation and
that the blow-through might nevertheless have occurred. Indeed
Exhibit R-6, a diagram, shows how boreholes could have been
drilled at an angle and have intersected but upon testing would
not have revealed whether they were clear through. Under the
circumstances I do not find that the Secretary has met her burden
of proving a violation of the cited standard. Citation No.
3420625 must be accordingly vacated"
Docket Nao KENT 90-426
Citation No. 3420045 alleges a 11 significant and substantial"
violation of the standard at 30 C.F.R. § 75.400 and charges that
11
[c]ombustible materials such as oil cans and trash were
permitted to accumulate on the No. 9 track across from the No. 2
Unit supply road.
11

The cited standard, 30 C.F.R. § 75.400, provides that
H(c]oal dust, including float coal dust deposited on rock-dusted
surfaces, loose coal, and other combustible material, shall be
cleaned up and not be permitted to accumulate in active workings,
or on electric equipment."
According to MSHA Inspector Cheryl McMackin, during the
course of her inspection of the Baker Mine July 10, 1990, she
observed, for the second day in a row, a large accumulation of
paper, cardboard, wood, oil cans and other combustibles in the
cited crosscut. The accumulation had increased from the day

589

before.
When asked about the trash, foreman Qualls indicated
that it had not been cleaned up because they had been busy on a
construction project and were starting a new unit.
Qualls also
told McMackin that the trash was located at a "collection point"
and that they intended to remove it. Under the circumstances I
find that the credible and essentially undisputed testimony of
Inspector McMackin is sufficient to prove the violation as
charged.
In reaching her conclusions that the violation was also
"significant and substantial", McMackin observed that there were
ignition sources near the accumulations i.e. several electrical
cables, an electrical junction box and rollers on the conveyor,
and noted that this was near the secondary escapeway.
She noted
that smoke from a fire in this area would precede toward the
working areas and that two miners were working in the immediate
vicinity of the accumulation. Under the circumstances I find
that the violation was indeed "significant and substantial" and
serious. Mathies, supra.
I concur in the findings of moderate negligence.
It is not
disputed that the cited area was a "trash pick-up area", that the
size of accumulations actually increased over the two day period
observed and that it was readily visible from the adjacent track
entry which virtually everyone must use passing into and out of
the mine.
In' reaching the conclusions herein I have not disregarded
Pyre's post hearing brief. Much of the argument therein is based
however upon speculation not supported by the record.
In any
event I find the expert testimony of Inspector McMackin,
uncontradicted by other expert testimony, to be credible and
fully supportive of her findingso
Considering the criteria under
section llO(i) of the Act I find a penalty of $150 to be
appropriateo
Citation No. 3420047 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. § 75.503 and charges that
''[t]he EIMCO scoop Company No. R-121, operating on the No. 1 unit
ID 001-0) was not maintained in a permissible condition and the
head light assembly was missing." The cited standard provides
that ''[t]he operator of each coal mine shall maintain in
permissible condition all electric face equipment required by
Section 750500, 750501, 75.504 to be permissible which is taken
into or used inby the last open crosscut of any such mine".
In
its post hearing brief Pyro does not dispute the testimony of
Inspector McMackin but argues that because the scoop was not
actually found in or inby the last open crosscut there was no
violation.
This argument is without merit.
The undisputed
testimony of Inspector McMackin is that during the course of her
inspection she heard the scoop operating inby the last open
crosscut. This evidence is sufficient from which it may

590

reasonably be inferred that the scoop was indeed operating inby
the last open crosscut. Her testimony that the scoop was used
regularly in the face area to clean up gob and rock is also not
disputed. Finally, Inspector McMackin actually observed the
scoop pulling through the curtain with the bucket in the
direction of entering the last open crosscut. This evidence
clearly supports the inference that the cited equipment was
equipment which is taken or used inby. See Secretary v. Solar
Fuel Co. supra.
The violation was clearly "significant and substantial" on
the basis of the undisputed testimony of McMackin. According to
McMackin the cover was missing from the headlight assembly and
you could clearly see inside of the assembly. She noted that the
electric light would be subject to arcing and sparking and in the
atmosphere of the Baker Mine which routinely liberates methane,
the violation was particularly egregious. She also noted that
the scoop was energized and in operation and that the section was
then producing coal. McMackin had taken methane readings and
found .2 percent methane at the return. She noted that 12 men
were working on the section at the time and that the missing head
light cover was "obvious". Within this framework it is clear
that not only was the violation quite serious and "significant
and substantial" but that it also involved significant
negligence. Under the circumstances I find that the Secretary's
proposed penalty of $98 is clearly inadequate. Considering the
criteria under section llO(i) and such a serious violation
involving significant negligence, a penalty of $400 is warranted.
ORDER

Citation Noo 3420625 is VACATEDo The remaining citations
are
irmed and Pyro Mining Company is dir cted to lpay civil
penalties of $2,022 within 30 days([f the d te of t ~s decision.

AdmrJtrati ~ Law Judge
Distribution~
,/

W. Fo Taylor, Esq., U.S. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Mr. William Craft, Safety Consultant, 685 Cherokee, Madisonville,
KY 42431 (Certified Mail)
nb

591

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

APR 3 1991
ISLAND CREEK COAL COMPANY,
Contestant

CONTEST PROCEEDINGS

v.

Docket No. VA 91-47-R
Order No. 3354742; 12/05/90

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

Docket No. VA 91-48-R
Citation No. 3354743; 12/05/90

UNITED MINE WORKERS OF-AMERICA
(UMWA), DISTRICT 28,
Local 1640,
Intervenor

VP-3 Mine
Mine ID 44-01520

Docket No. VA 91-49-R
Order No. 3508496; 12/13/90

DECISIONS
Appearances:

Timothy c. Biddle, Robert Davis, Esqs., Crowell &
Moring, Washington, D.C., for the Contestant;
Charles Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Respondent;
Scott Mullins, Esq., Coeburn, Virginia, for the
Intervenor.
Mary Lu Jordan, Esq., United Mine Workers of
America, (UMWA); Washington, D.C., for the
Intervenor.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern Notice of Contests
filed by the contestant (Island Creek) pursuant to section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 815(d), challenging the legality of two section 107(a) imminent
danger orders, and one section 104(a) significant and substantial
(S&S) citation issued by MSHA mine inspectors.
Pursuant to the
contestant's request, an expedited hearing was held in Abingdon,
Virginia, on December 19 and 20, 1990, and the UMWA's request to
intervene, made on the record at the hearing, was granted without

592

objection. The parties filed posthearing briefs, and I have
considered the arguments made therein in the course of my adjudication of these matters.
Issues
The issues presented in these proceedings include the
following:
(1) whether the conditions cited in the contested
imminent danger orders were in fact imminent dangers warranting
the mine closure and withdrawal of miners; and (2) whether Island
Creek violated the cited mandatory safety standard in issue in
Docket No. VA 91-48-R, and if so, whether the violation was
significant and substantial.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301 et seq.

-

2.

Sections 104(a), 105(d), 107(a) of the Act.

3.

Mandatory safety standard 30 C.F.R.

4.

Commission Rules, 29 C.F.R.

§

§

75.316.

2700.1, et seq.

Stipulations
The parties stipulated to the following:
1. The subject Virginia-Pocahontas No. 3 Mine is
subject to the 1977 Mine Safety and Health Act.
2. The subject proceedings are subject to the
jurisdiction of the Commission and the presiding judge.
3. MSHA Inspector Arnold D. Carico was acting in
his capacity as a designated representative of the
Secretary of Labor when he issued the contested section
107(a) Order No. 3354742, and contested section 104(a)
Citation No. 3354743.
4. MSHA Inspector Claudy J. Scammell was acting
in his capac
as a designated representative of the
Secretary of Labor when he issued contested section
107(a) Order No. 3508496.
5. True copies of the subject orders and citation
were served on the contestant or its agent as required
by the Act.

593

6.
On December 5, 1990, Mr. c. w. Settle, Island
Creek's de-gas foreman, was with MSHA Inspector
Arnold D. Carico at the No. 4 entry of the No. 9 devel~
opment and took a methane reading at a location 1-foot
outby the stopping and 1-foot down from the top of the
roof, and he recorded 3.5 percent methane at that
location (Tr. 188).
Discussion
The orders and citation issued in these proceedings are as
follows:
Docket No. VA 91-47-R
Section 107(a) Imminent Danger Order No. 3354742, issued at
11:25 a.m., on December 5, 1990, by MSHA Inspector Arnold D.
Carico, states as follows:
Methane conQentrations were detected coming
through permanent stoppings erected across the bleeder
entry connectors between the gob and the South Main
bleeders at the following locations and in the following concentrations (as indicted by a Riken methane
indicator): No. 2 entry of No. 10 development South
(sic); No. 4 entry of No. 9 development South - 8.3%;
No. 4 entry of No. 8 development south - 7.6%; Citation
No. 3354743 is being issued with and as contributing to
this order.
The inspector ordered the withdrawal of all underground
areas of the mine.
The order was terminated on December 6, 1990,
by MSHA Inspector Claudy Scammell, and the termination notice
states as follows~
The methane concentrations coming through the
permanent stoppings erected across the bleeder entry
connectors between the gob and the south main bleeders
have been reduced to 3.6% of methane or less in all
entries from 11 development south to 8 development
south.
Docket No. VA 91-48-R
Section 104(a) 11 S&S" citation No. 3354743, issued at
11:25 a.m., on December 5, 1990, by MSHA Inspector Arnold D.
Carico, cites an alleged violation of mandatory safety standard
30 C.F.R. § 75.316, and the cited condition or practice is
described as follows:
The ventilation, methane, and dust-control plan
approved for this mine was not being complied with.

594

Item 10 of the plan requires that "Bleeder entries
shall be connected to those areas from which pillars
have been wholly or partially extracted at strategic
locations in such a way as to control air flow through
such gob areas,
" Permanent stoppings were
erected across all connectors between the gob and the
south main bleeders at Nos. 8, 9, and 10 development,
and had been plastered to minimize leakage from the gob
to the bleeders. Methane was detected at the following
locations and concentrations leaking through these
stoppings: No. 2 entry of 10 development - 6/2%; No. 4
entry of 9 development - 8/3%; No. 4 entry of No. 8
Dev. - 7.6%.
According to mine management, the only locations
where air is being intentionally regulated from the gob
area are at No. 11 development (tailgate) connectors
and No. 1 development connectors to the main bleeders
and main returns.
The inspector did not include an abatement time as part of
the citation. However, Inspector Scammell modified the citation
on December 6, 1990, and fixed the abatement time as 9:00 a.m.,
December 20, 1990.
Docket No. VA 91-49-R
Section 107(a) Imminent Danger Order No. 3508496, issued at
11:45 a.m., on December 13, 1990, by MSHA Inspector Claudy J.
Scammell, states as follows:
Methane concentrations were detected coming
through permanent stoppings erected across the bleeder
entry connectors between the gob and the south mains
bleeders at the following locations and in the following concentrations (as indicated by a Riken methane
indicator)~
No. 2 entry of No. 10 development south,
6.2%; No. 4 entry of 9 development south, 6.3%; No. 3
entry of 9 development south, 6.2%; No. 2 entry of 9
development south, 6.0%; No. 1 entry of 9 development
south - 5.5%; No. 4 entry of 9 development south, 6.7%;
No. 3 entry of 8 development south, 5.4%; No. 2 entry
of 8 development south, 6.2%; No. 1 entry of 8 development south, 7.6%; Bottle samples were collected to
substantiate this order.
The inspector order the withdrawal of all underground areas
of the mine.

595

MSHA's Testimony and Evidence
MSHA Inspector Arnold D. Carico, testified that he is a
mining engineer and is familiar with the subject mine and has
visited it approximately 15 times since 1978. He confirmed that
he visited the mine on December 5, 1990, with three other inspectors, after his supervisor James Bowman instructed him to conduct
"a quantity/quality survey" of the active south gob area. He
identified exhibit G-1 as a mine map containing the partial
findings made by the inspectors on December 5. He confirmed that
his duties include the review of mine and ventilation maps,
participating in underground inspections relating to ventilation~
and reviewing and recommending approval or disapproval of ventilation plans (Tr. 13-16).
Mr. Carico stated that he used an anemometer, a Riken
methane detector, and measuring tapes during his inspection, that
the equipment was properly calibrated, and that the Riken detector is generally accepted as an accurate tool for testing methane
(Tr. 17) •
,
Mr. Carico stated that he began his inspection along the
No. 12 development and proceeded inby the longwall face along the
development entries. He found no ventilation problems or any
significant degree of methane anywhere in the mine up to that
point. His initial examination took place at the longwall setup
entries where he determined that the air was flowing from the
No. 12 development toward the No. 11 development, and that this
air flow was normal and expected. He found .2 to .3% methane,
which he characterized as "very small amounts of methane." He
then proceeded to the No. 3 and 4 entries, where he took air
measurements which he found were acceptable. He then examined
the 11 butt-offs, 11 or "dead-end" entries which will eventually be
connected in future development, and found that they were properly ventilated. He then proceeded to the No. 11 development
bleeder connectors and found no ventilation problems (Tr. 17-19).
Mr. Carico stated that he next proceeded to the No. 10
development connectors where he found four permanent brattices
installed across each of the four entries. He found that air was
leaking through one of the brattices, and he tested the air to
determine 11 what was located behind that stopping or brattice."
He tested the air with a Riken methane indicator, and the test
reflected 6.2% methane coming through the brattice in the No. 2
heading.
Based on this test, he assumed that there was ''a body
of methane 11 behind that stopping. He confirmed that methane
ranging from 5 to 15% is explosive, and that 11 with an ignition
source and a sufficient amount of methane you could have a mine
explosion 11 (Tr. 21).
Mr. Carico stated that when he initially found the
6.2 percent methane, he was concerned, but made no firm hazard

596

conclusions because of the possibility that it was "a localized
problem and not an indicator of a larger problem and not an
indicator of a problem or even a large body of methane." He
believed that the methane may have been "a small body of methane
trapped behind a single brattice" {Tr. 21).
Mr. Carico confirmed that when he found the methane in
question he was aware of four prior mine fires, and at least one
prior methane eruption from the mine floor at the longwall face.
He believed that two of the fires had possibly occurred in 1973,
prior to his MSHA employment, and he learned about them from
discussions with his co-workers. A third fire occurred in 1976
or 1977, and others occurred in 1983, and they could have been
the same fire which was never extinguished. He confirmed that
MSHA's investigations of the prior fires did not determine the
source of the ignitions for these fires.
He believed that two of
the fires occurred in the north gob area, and two occurred in the
south gob area (Tr. 23).
Mr. Carico confirmed that he had previously issued an
imminent danger order in April, 1990, for explosive mixtures of
methane emanating through the brattices along the south bleeders
adjacent to the No. 2 and No. 3 developments. These brattices
were installed because roof falls which have occurred in the
connectors made it impossible to regulate overflow from the gob
to the bleeders at that location (Tr. 24). Mr. Carico was also
aware of two prior imminent danger orders issued by Inspector
Kenneth Owens in 1987 for explosive mixtures of methane through
the brattices separating the gob from the bleeder entries at the
top end of the south bleeders in the No. 4 development. He
believed that these conditions were identical to the conditions
which prompted him to issue his order (Tr. 26). He confirmed
that the south gob area is approximately 8,000 feet by 5,000 or
6p000 feet.
Mr. Carico stated that the No. 10 development brattices were
plastered "to almost an air tight condition" and that a minute
amount if air was passing through the brattice hole where he
found 6.2 percent methane. He confirmed that larger quantities
of air was escaping around the brattice perimeter, but since he
is not permitted to examine an area within 1 foot of the rib,
roof, or face, he did not bother to make those examinations
because he realized they would be invalid. He explained that
tests near the roof and rib may result in erroneously high
methane readings due to liberation from the surrounding coal
strata and they would not be indicative of the air stream or the
body of methane (Tr. 28).
Mr. Carico stated that he attempted to take methane readings
at the other three brattice locations at the No. 10 development,
but he could not do so because he could find no air leaking

597

through the brattices.
He then proceeded to the No. 9 development where he began making similar examinations, and at the No. 4
heading, which he examined first, he found 8.3 percent methane
coming through the brattice.
At this point in time, he was
becoming more concerned because it appeared that a fairly substantial body of methane was lying against the brattices in the
bleeder connectors, and although he believed that a imminent
danger was "probable," he reached no conclusion at that time, and
believed that he needed to go further (Tr. 29).
Mr. Carico stated that he then proceeded to the No. 8
development where he examined the air coming through the brattice
in the No. 4 entry, and he found 7.5 percent methane coming
through the brattice.
He then concluded that there was a substantial body of methane lying up against the brattices and that
there was an "associated problem" with the ventilation system
because the methane was not being diluted.
He then decided to
issue an imminent danger order, and verbally informed foreman
Settle, who was accompanying hj.,m, of his decision to issue an
order, and also informed him that he was issuing a section 104(a)
citation for a violation of the approved ventilation plan (Tr.
3 0) •

Mr. Carico stated that when he issued the order and citation, he believed that a methane hazard existed, and that "when
you have an explosive mixture of methane the only thing lacking
for an explosion is the ignition source" (Tr. 30).
He furtner
stated that "understanding the history of this mine--knowing the
history of this mine I knew that there were possibly ignition
sources associated with the gob" (Tr. 31).
In the event of an
ignition, an explosion would result.
He concluded that there was
a substantial body of methane in the gob area encompassing
Hprobably twelve entries in the form of the bleeder connectors
back to the gob and most probably be associated to set-up
entriesH (Tr. 31).
Mr. Carico stated that one of the possible ignition sources
for the prior mine fires were roof falls in the caving areas of
the longwall units.
He indicated that the roof contains massive
sand stone with layers of quartzite, and that quartzite is
"highly sparked and has been known to ignite bodies of methane"
(Tr. 32).
He also believed that a face ignition could possibly
propagate into the gob area and ignite the methane in the gob
adjacent to the longwall face.
Mr. Carico identified other possible sources of ignition as
welding or cutting along the face, open flames, bolting metals
which could ignite methane emanating from the mine floor, and
possibly spreading to the gob.
He also believed that any work
connected with ventilation repairs and adjustments in the bleeder
entries, and sparks created by the use of hammers on the metal
brattices, would be potential sources of ignition.
A mine

598

explosion of any proportion would involve fatalities, and he
believed that the entire mine and the 85 employees who were
underground would be exposed to this hazard {Tr. 34).
In view of
the history of unexplained mine fires, and the possible ignition
sources, he concluded that it was ''fairly likely" that death or
serious injury would have resulted if mine operations were to
continue (Tr. 35).
Mr. Carico stated that he issued the citation because he
believed that the ventilation system was inapequate because of
insufficient air regulation between the bleeder entries and the
gob to maintain methane levels at or below the explosive limit at
safely accessible areas used for examinations (Tr. 40).
Mr. Carico identified exhibit G-4, as the approved ventilation plan, and he believed that the respondent violated section
lO(a) which appears on page 4 of the plan, because the brattices
erected across the entries were air tight and did not induce the
drainage of gob gas from all portions of the gob (Tr. 42-43).
Mr. Carico stated that longwall coordinator and acting mine
superintendent Bill Meade confirmed that the only other place
where air was being regulated was at the No. 1 development, and
he (Carico) concluded that brattices were also constructed at the
remaining No. 1 through No. 7 developments. Mr. Carico confirmed
that the air intake for the gob area was in the No. 12 development, and he explained how the air was coursed through the area.
He confirmed that he did not measure the airflow entering the gob
(Tr. 43-44).
Mr. Carico stated that the citation "helped to define the
cause of the imminent danger," which in this case was a body of
explosive methane lying against the cited brattices, and that the
suance of the citation would provide a means for abating the
violation (Tr" 46).
He confirmed that the citation has not been
abated, and that a termination date of December 20, 1990, was
subsequently established.
He confirmed that when he visited the
mine the evening before the hearing, he found no significant
changes which would cause him to terminate the citation.
He
further confirmed that he found that additional metal brattices
had been installed between the cited brattices and the bleeder
entrances at all locations from the No. 10 development to the
No. 6 development, but he did not believe that these additional
brattices would induce the drainage of gob gas from all of the
gob areas, and would only result in less leakage or less exchange
from the gob to the bleeder entrance (Tr. 48).
Mr. Carico confirmed that he took methane readings at the
newly constructed stoppings, and although the results were
significantly less, he was unable to physically examine the
original brattices behind these newly erected stoppings to
determine whether the previously found explosive mixtures of
methane were still present (Tr. 48-50).
He did not believe that

599

the new stoppings reduced the danger of the methane accumulations
which prompted him to issue the order, but that they may have
precluded an ignition source from the bleeder side of the stopping. He also believed that the work performed to construct the
new metal stoppings introduced another potential ignition source
(Tr. 51).
Mr. Carico stated that the stoppings and regulators were
used to ventilate the gob area and to regulate the airflow
through that area. Although the stoppings are part of the
approved ventilation plan, a lack of sufficient regulators
causing accumulations of methane would be a violation of the plan
(Tr. 54). He confirmed that the ventilation schematic which
appears on page 16 of the plan reflects two stoppings and two
regulators in each set of entries, and that these are typical
examples of the stoppings and regulators which he found in the
No. 3 and No. 4 headings (Tr. 56}.
Mr. Carico confirmed that he took some air bottle samples on
December 5, 1990, but that they' were lost in the mail. He stated
that this did not affect the issuance of his citation, and he
confirmed that bottle samples taken by Inspector Scammell a week
later were received and analyzed (Tr. 65).
On cross-examination, Mr. Carico stated that he reviewed the
ventilation plan in August, 1987, and that subsequent reviews are
required every 6 months. He confirmed that as of December 5,
1990, the mine was in compliance with the plan requirements for
the bleeders and the gob. He stated that since mining is
dynamic, changed conditions might require re-regulation of the
air, and if this is not done, a plan violation may occur.
He
confirmed that the inspections conducted by the other inspectors
in the south gob return and other mine areas on December 5r 1990,
did not result in any violations in those areas. He also confirmed that the area between the No. 10 development and the back
of the active longwall reflected no problems with the ventilation
in that area (Tr. 65-69).
Mr. Carico stated that the brattice which he initially
tested was constructed of concrete block and a plastered over
surface. He was not surprised to find the brattice and confirmed
that it was used to control the airflow in the bleeder system to
the bleeder entries. He was standing in the bleeder entry, and
the gob was on the other side of the stopping. He explained that
he tested the stopping by running his hand across the stopping
face in order to feel any escaping air. After finding areas
where air was corning through small "pinhole-type areas," he
placed the small tube attached to the inlet end of the Riken
methane detector in the crack and took a methane reading. He
agreed that this test would not indicate what was going on in the
bleeder.
He confirmed that if he wanted to take a methane
reading in accordance with the regulations he would have tested

600

12 inches from the roof, face, and ribs.
However, since the
brattice is only a ventilation appliance, and not a roof, face,
or rib, there was no restriction as to where he could take his
sample (Tr. 71-72).

Mr. Carico confirmed that he did not determine the quantity
of air in the bleeder at the stopping area where he found
6.2 percent methane, and that he would expect the methane bleeding through the stopping to mix with the air in the bleeder and
be carried through the bleeder entries and eyentually out through
the exhausting fan shafts. He stated that he was measuring gob
gas at the brattices, and was not concerned about the gob gas at
that particular location. His concern was that his test indicated the possibility of a larger body of methane than what was
indicated by his test (Tr. 74).
Mr. Carico stated that methane gas coming out of a borehole
can be measured, but that he took no such measurements. He
agreed that boreholes which bleed off methane out of the mine
enhance the available underground ventilation. He also agreed
that the gob area of the mine in question is expected to have
explosive concentrations of methane in some locations, and that
it is impossible to get it all out of the mine (Tr. 75-76). He
explained that the methane is in an area which liberates large
quantities of methane and that vertical boreholes are drilled
from the surface to intercept the gob fall areas where coal has
been extracted to draw out the methane with vacuum pumps or fans
(Tr.77).
Mr. Carico believed that one would not expect to find gas
behind the stopping if the bleeder system is functioning properly. He confirmed that he was familiar with the functioning of
the mine bleeder system, and using the mine map as a reference,
he explained how and where the air is coursed through the gob.
He confirmed that one cannot safely walk through the gob area
because of the hazardous roof conditions. He also confirmed that
while some of the air may find its way into the actual gob area,
it essentially ventilates the periphery of the gob, and the
methane is supposed to come out of the gob area through the edges
into the bleeder system and out of the mine (Tr. 79-83). He
assumed that the stoppings were constructed to regulate the gob
so that it would function in a manner that would keep explosive
methane levels from exiting the gob at the bleeder connectors
(Tr. 83-84).
Mr. Carico confirmed that his 6.2 percent reading was made
at the stopping in the No. 2 entry of the No. 10 development, but
that he could not take readings at the other stoppings in that
development location because the leakage around the stopping
perimeter was within a foot of the mine roof or rib and no
readings could be taken there because they may be artificially
high and not representative (Tr. 84-86).

601

Mr. Carico stated that he did not test the amount of oxygen
going through the pinholes in the stoppings which he tested and
that he does not usually make such oxygen tests unless he has
reason to believe that there might be a problem with the flow of
oxygen. He agreed that oxygen is definitely a factor in determining whether there is an explosive concentration of methane,
and in the absence of any measurements of the oxygen coming
through a pinhole, one cannot tell if there is an explosive
mixture of methane behind the stopping "with a sole finding of my
methane level" (Tr. 87).
Mr. Carico confirmed that unless certain precautions are
taken, welding and cutting is not permitted in the bleeders which
are return air courses. He agreed that welding is not a normal
daily operation which is done in a return air course, and that it
is even less likely that such work would be done in a bleeder
(Tr. 89).
Mr. Carico confirmed that although he believed that the
stoppings prevented the drainage of gob gas, the ventilation plan
does not state where such drainage has to occur. However, he
indicated that the plan states that drainage has to occur at
"strategic locations," but that these words are not further
defined in the plan. He confirmed that Island Creek may determine the strategic locations as long as it meets the requirement
for controlling the airflow through the gob. However, the
ventilation has to insure that explosive gas mixtures do not
reach safely accessible areas where people are normally required
to work or travel (Tr. 91).
Mr. Carico conceded that although he only referred to the
second sentence of the applicable ventilation plan provision in
his citation, he believed that all of the language was applicable. He agreed that the first part of the second sentence was
complied with and that "the bleeder entries were connected to
those areas in which pillars have been wholly or partially
extracted" and that the bleeders are connected at sufficient
intervals to control the gob gas as it comes out. He stated the
basis for his citation as follows at (Tr. 94):
Q.
And so your basis for the citation was that you
found some methane in explosive concentrations coming
through a pinhole, you drew the conclusion that there
was some amount of methane on the other side, is that
correct, of the stopping on the gob side?

A.

That 1 s correct.

Q. And from that you concluded that the company's
bleeder system was not working properly?
A.

Yes.

602

Q.

Or was not constructed properly?

A.

Yes, sir.

Mr. Carico agreed that except for the gob dome and fall
area, the high place in the gob area, according to the map
contour lines, is in the area where he took his measurements and
issued the citation and order. He also agreed that methane is
lighter than air and will leak out at the highest place it can
even though it is enroute out of the mine (Tr. 97} .
In response to further questions, Mr. Carico confirmed that
in testing the face of the brattices, he placed his Riken methane
monitor in the cracks because any sampling outby the face of the
brattice would not have given him "a true representation of what
was actually behind the brattice" and any methane would have been
diluted outby the brattice {Tr. 98). He believed any explosive
methane leakage from a roof or face where coal is being cut would
constitute a controlled, small, body of methane, or "face ignitions or pops," as distinguished from a "substantial body of
methane and apparently not controlled" behind the brattices in
question (Tr. 99). He confirmed that face ignitions have
occurred at the mine, but he could not state how many may have
occurred or when they occurred (Tr. 99).
Although Mr. Carico stated that there was a potential for a
face ignition at the longwall face, he stated that "I'm not
prepared to, you know, evaluate as to what the potential is" (Tr.
100). He confirmed that the longwall working faces were "several
thousand feet" from the stoppings where he found leakage, and
while there are some established bleeder points for the abandoned
north gob area, there are none for the cited south gob area.
He
further confirmed that the mine operator is required to examine
the gob area and stoppings weekly by traveling the bleeder
entries and examining the brattices "to see that they 1 re still
serving the purpose for which they were erected" (Tr. 103).
Mr. Carico stated that methane "face inundations" have
occurred at the mine in 1985, and he explained that this occurs
Hwhere a quantity of methane is released at a rate which the
ava able ventilation is not able to dilute it" (Tr. 104). He
stated that this occurred in a new longwall panel where coal was
being extracted, and the floor cracked and released several
hundred thousand cubic feet of methane in a matter of minutes and
"over-rode 11 the intake air being delivered on the longwall face
and "backed the ventilation up for at least a hundred feet outby
the longwall face" (Tr. 104).
If there had been an ignition, he
"supposed" that it could have traveled 2,000 feet (Tr. 105). He
confirmed that this incident, as well as the prior mine fires,
were within his "collective knowledge" when he issued the imminent danger order on December 5, 1990, and that those factors
"definitely contributed to me having more concern possibly for

603

this mine or, in fact, for this mine that I might have for some
of the other mines, you know, where no findings like that had
been made, where those occurrences hadn't taken place" (Tr. 106).
Mr. Carico stated that if methane exploded next to a stopping, it would blow out the stopping and leave an open area for
methane to flow out of the gob. Any resulting negative ventilation pressure would then draw uncontrolled bodies of methane out
through the open bleeder entries and "involve the entire mine"
(Tr. 114). Mr. Carico believed that the method he used for
testing for methane in the gob on December 5, was sufficiently
accurate to indicate that the condition existed. He further
stated that he would have liked to have had better access to the
gob area to make a better determination as to how the gob was
being ventilated, and would have liked to have been able to
determine exactly how large the body of methane was in order to
know "the entire facts concerning it." However, he could not do
this in this case because the gob area was physically blocked by
cribs which were installed from rib to rib, and he would only be
able to go inby for 10-or 15 feet.
If he were able to travel
behind the gob area, and assuming it were safe to travel there,
he may have been able to determine the airflow along the set-up
entries, or whether it was completely stagnant (Tr. 115). He
confirmed that in all of the places where he tested the stoppings, they were all physically obstructed and he could not enter
the gob areas (Tr. 116). He was aware of no other method in the
ventilation plan for checking in behind the stoppings, and he did
not know how Island Creek checked these areas (Tr. 117).
Mr. Carico confirmed that he did not review the preshift
reports for the periods prior to December 5, to determine whether
the areas had been inspected and whether any methane readings
were previously taken, and he stated that this "was an omission
on my part 11 (Tr. 117). In response to further questions,
Mr. Carico explained how long it took him to perform his tests
with the Riken methane detector, and he confirmed that it was his
judgment that there was an approximate volume of "tens of thousands of cubic feet of methane behind the stoppings," and that
his conclusion in this regard was "based on my findings of what
was passing through that stopping and knowing that these areas
were interconnected inby those stoppings" (Tr. 122).
MSHA Inspector Claudy J. Scammell, stated that he was
familiar with the subject mine and that he conducted regular
inspections there for approximately 6 months in 1987 and for
approximately 9 months in 1990. He confirmed that he was with
Inspector Carico on December 5, 1990, but that he went to the
intake side of the longwall tail at the No. 12 development to
conduct his inspection, and upon inspecting that area he found
nothing out of the ordinary. He confirmed that he learned that
Mr. Carico had issued h1s order and citation for methane accumulations at the bleeders on his way out of the mine and that he

fi 0 4

discussed them with Mr. Carico after he had ordered the withdrawal of miners.
Mr. Scammell stated that he returned to the mine the next
day on December 6, with his supervisor and went to the area where
Mr. Carico had issued his December 5, order. He started his
inspection at the No. 11 development, and proceeded to the No. 8
development. He detected no changes in the stoppings or the
conditions previously cited by Mr. Carico, and he took methane
readings with a Riken and a CD210 methane 9etector. The Riken
detector had been calibrated that same morning, and the readings
which he took included the "highest" reading of 7.6 percent
methane. He did not know what the lowest reading was, but stated
that "there were some below 5%." The only changes which he
observed with respect to the stoppings cited by Mr. Carico "was
that the stoppings had some plaster added to them, trying to seal
the cracks, I presume. 11 He confirmed that he took his methane
measurements approximately an inch to a half-inch "right near the
cracks where air was coming through," and that he measured the
methane at each of the entries in the east development, and the
highest reading he measured was 3.6 percent methane. Under the
circumstances, he terminated the order previously issued by
Mr. Carico on December 5 (exhibit G-2, Tr. 126-132).
Mr. Scammell stated that he next visited the mine on
December 13, 1990, with his supervisor to determine whether any
stopping changes had been made and to follow up on the December
5, citation issued by Mr. Carico. He confirmed that he checked
the bleeder entries at the No. 11 development, and found "nothing
out of the ordinary," and found no excessive or explosive levels
of methane (Tr. 133). He then proceeded to the No. 10 development, where he tested the No. 4 and No. 3 entries and found
methane below 5 percent" He could not recall the exact readings,
but confirmed that they were below 5 percent. He then tested the
No" 2 entry and found 6.2 percent methane. Although he believed
that this reading warranted an imminent danger order, he decided
not to issue it at that time because he wanted to make sure that
this was not a pocket of methane in an isolated area, and wanted
to check further.
Mr. Scammell confirmed that he was aware of the prior mine
fires of unknown origin. Two of the fires occurred prior to the
time he became an inspector, and at least three of them were gob
fires.
However, he had no idea on which development or which end
of the gob the fires occurred. He believed that roof falls had
occurred in the gob area, and stated that "the gob wall always
has falls on it. That's the purpose of it" (Tr. 135).
Mr. Scammell stated that he then proceeded to the No. 9
development and found methane in excess of 5 percent at all four
of the bleeder entries where he took methane readings at the
stoppings where he detected air coming through the cracks. He

605

confirmed that he took his readings a half inch or an inch close
to the cracks, and found 6.3 percent methane at the No. 4 entry.
Although he believed at that time "that there was a methane
problem again," he wanted to check across to at least the No. 8
development before making any final imminent danger decision. He
then proceeded to take additional readings, and the last reading
he took was in the No. 1 entry of the No. 8 development where he
measured 7.6 percent methane. He confirmed that all of his
readings for a row of eight entries were above 5 percent methane,
and he then advised company representative Workey that there was
an imminent danger and that he was to withdraw all miners
(exhibit G-5, Tr. 135-138).
Mr. Scammell stated that at the time he issued the order he
believed that the methane concentrations in excess of 5.0 percent
leaking through the stoppings in question presented a hazard, and
that the presence of an ignition source "would be all that it
would take to blow up the entire mine" (Tr. 139). He believed
that any sparks from a roof fall, which was possible in the gob
area, would constitute-an ignition source. He confirmed that one
cannot really determine the kinds of falls in the gob area, but
that "constant" falls are occurring where the coal is being
mined. When asked about the frequency of any falls, he stated
11
it 1 s quite often.
I ready don't know" (Tr. 140).
Mr. Scammell stated that any methane ignition occurring at
the longwall face could possibly propagate from the face line of
the longwall, but that his "major concern" was a gob roof fall.
He confirmed that there were no other ignition sources that posed
a risk of igniting the methane which he found.
He believed that
any methane explosion resulting from a gob roof fall would result
in fatal injuries to the 85 miners on the day shift, and that
such an event was highly likely if normal mining operations were
continued (Tr. 141).
On cross-examination, Mr. Scammell stated that he was
concerned about "a combination" of roof falls in the bleeder and
the gob on either side of the stopping, "just in that general
area'' (Tr. 143). He confirmed that he did not know what was
behind the stoppings when he made his methane readings, and that
it was poss
that the roof on the gob side of the stoppings
was "cave tight." He then conceded that he was not concerned
about any roof falls other than behind the stoppings, and that a
roof fall 100 feet away from any methane would not make any
difference (Tr. 142-145). Mr. Scammell confirmed that he made no
methane readings out in the bleeder entries and that any methane
bleeding through the stoppings into the bleeders would be diluted
(Tr. 146).
also confirmed that he took no air measurements to
determine how much air was going into the gob area from the
No. 12 development area, and he had no knowledge as to how much
air was coming "out the other end" (Tr. 148). He conceded that
he did not know what was going on in terms of ventilation in the

606

gob, and that he was just concerned about what he thought was on
the other side of the stoppings (Tr. 148).
Mr. Scammell confirmed that he took three bottle samples "as
close to where I got the original methane readings" to substantiate his order, and he identified exhibit C-1 as a phone message
received from Inspector Carico communicating the result of the
bottle samples (Tr. 158). Mr. Scammell confirmed that he made
nine Riken methane readings to support his order, but only took
three bottle samples. He confirmed that he took no bottle sample
at the stopping where he found 7.6 percent methane because he had
no more bottles. He confirmed that the bottle samples showed
5.4 percent, 5.09 percent, and 5.75 percent methane, but he was
not sure of the locations where these samples were taken (Tr.
160-163).
Roy D. Farmer, testified that he has worked at the mine
since October 1975, and that he serves as chairman of the safety
committee and president of the UMWA Local 1640, which represents
the miners. He stated that in his capacity as the miner's safety
representative he began inspecting the bleeders in 1976, and has
continued to do so to the present. He has made various methane
tests in the areas in question with a Riken gas detector and
confirmed that this instrument is generally accepted by the
mining industry for testing methane and that the detectors are
calibrated by the company's safety department. He stated that he
has in the past found methane in excess of 5 percent, and if
methane at that level is found at the stopping line all miners
are immediately withdrawn from the mine (Tr. 166-169).
Mr. Farmer stated that beginning in 1976, each of the
developments had a regulator in the No. 1 and No. 4 entry of each
development.
One could travel through the regulators into the
set-up entries to check for methane and withdraw miners if the
methane exceeded 5 percent. As the mine developed and the gob
area increased there were problems with controlling the methane
and the company erected permanent stoppings where the regulators
used to be.
Since this was done, the only method for checking
the methane is to feel along the stoppings for any leakage and
insert the Riken detector into the crack to check for methane.
If one finds a reading above 5 percent, it was his opinion that
it would be indicative of a buildup of methane behind the stopping in the set-up entry (Tr. 170).
Mr. Farmer stated that prior to the sealing of the regulators, any increased levels of methane could be dealt with by
opening or closing the appropriate regulator to allow air to flow
to the set-up entries to sweep out the gas.
In his opinion, the
sealing of the regulators has resulted in the "bottle necking'' of
the methane and "there's no where for it to go." Any detection
of methane coming through the stopping would, in his opinion,
indicate that the air is not sweeping through and is not being

607

properly regulated to move out the methane. Mr. Farmer did not
know why the stoppings have been erected, and in his opinion, a
door could be installed in a stopping to allow one to go through
and check the other side with a Riken detector rather than
putting it against any "pinhole" crack in the stopping itself.
He believed that such a door in the stopping would solve the
problem, and that the problems which have been created have
resulted from the removal of the regulators and the erection of
solid stopping lines over all four connecting entries in each of
the developments. This prevents anyone from physically going
into those areas to check them and prevents any adjustments to
the air sweeping those areas (Tr. 171).
On cross-examination by Mr. Biddle, Mr. Farmer confirmed
that he knew of no reason why the company would want to keep
methane in the gob area behind the stoppings. He stated that the
decision by mine management to eliminate the regulators began "in
the eighties" when a "new management team came on board" and
someone made the decision to erect the stoppings. He agreed that
the decision was made for some reason, but he did not know the
reason. He confirmed that prior to the erection of the stoppings, if 5 percent methane was found anywhere in the mine,
including the stopping line, the set-up entries, and the bleeder
connectors, the men were withdrawn from the mine. He confirmed
that no one was withdrawn if 2 percent methane were found in the
bleeders (Tr. 173). Mr. Farmer agreed that the purpose of
bleeders is to take the methane out of the mine, and he agreed
that in a "windy bleeder" with a "lot of volume of air going
·
through," any methane which may be 80 percent will decrease in
volume as it courses through the bleeder (Tr. 174).
In response to questions by Mr. Jacksonr Mr. Farmer stated
that the bleeder system is designed to sweep the periphery of the
set-up entries. The gob 11 dome area, vv or "big fall area" however,
is sealed off and supported by barrier block so that air can
sweep through that area. He confirmed that high levels of
methane may go through a bleeder at times due to the release of
pockets of methane, and if they are in the explosive range, it
would not be safe for anyone to be in the bleeder (Tr. 175-176).
Mr. Farmer stated that he is familiar with the mine ventilation plan, and that he or a member of the safety committee has
reviewed the plan and expressed the union's concerns about the
stoppings, but have received no response. He distinguished the
gob area from the set-up entries which he believed was the
periphery area where the sweeping of methane was needed. He
believed that regulators at different locations in the set-up
entries could be opened and closed as needed to redistribute and
redirect the air, and without these devices, there is essentially
no control of the air. He further believed that more regulators
are required in the south bleeders to keep the methane below
5 percent (Tr. 183).

608

Mr. Farmer confirmed that during his inspections, both he
and the company have found methane in excess of 5 percent "numerous times" in the same manner found by the inspectors, and men
were withdrawn by management.
Corrective action was taken by
removing a stopping "sometimes," opening or closing a regulator
when it was there, plastering the stopping to seal it tighter, or
erecting another stopping to prevent anyone from going where the
methane is.
It was his understanding that the company in this
case erected metal stoppings in the No. 6 t,hrough No. 10 developments and left a panel out of each side of the stopping so that
air from the bleeders could course around the stopping (Tr. 185).
However, the inspector cannot travel to the original stopping
areas to determine whether any methane is still there because of
the new metal stoppings which are barriers.
Contestant's Testimony and Evidence
Eddie G. Ball, mine manager, testified as to his duties and
responsibilities and hi.s mining experience.
He stated that the
mine is located in Vansant, Virginia, and that it is a shaft mine
approximately 1,400 feet underground.
The annual coal production
for 1990 is 1.7 million tons, continuous miners are used for mine
development, and the primary source of mining is the longwall
system.
The mine employs approximately 330 miners, including 276
hourly miners, working three shifts a day (Tr. 189-192).
Mr. Ball identified exhibit C-2 as a mine map, and he
confirmed that the green markings show the intakes, and that the
returns are marked in red. The red arrows at the areas across
the map show the gob areas which are previously developed and
mined-out longwall panels where the roof has caved in after the
coal was extracted. The gob areas are ventilated by intake air
which
coursed through the gob from the head and tail of the
longwall and splits off the longwall, and he explained how the
air travels into the bleeder system to ventilate those areas.
Mr. Ball confirmed that the longwall panels from the No. 1
through No. 10 developments were 5,620 feet long, and that the
last two panels have been shortened (Tr. 192-199).
Mr. Ball stated that a sealant material is used to seal the
stoppings, and he confirmed that the stoppings were originally
installed as the developments progressed in order to control the
air.
The regulators are still in place, but they are closed and
sealed so that the pressure can be controlled "to make the gas
flow in the way we want it to and get it to mix to come out in an
acceptable manner." If the stoppings were removed, he would lose
control of the air and there would be no way to direct it.
This
will result in a high concentration of methane coming out early
into the bleeder system and he would be unable to control and
push the air across the old set-up entries.
The loss of pressure
would result in a concentration of methane into the bleeder
system and "the rest of the gob area will go dead" with no air

609

going through. The stagnate air will result in high concentrations of standing methane in each bleeder connector (Tr. 201).
Mr. Ball confirmed that he was famil
with the mine
ventilation plan and
bleeder system provisions, and he
believed that he was in compliance with the plan. He stated that
the bleeder system has been previously inspected by MSHA, that
three ventilation surveys were conducted by MSHA prior to Inspector Carico•s inspection, and that he was informed that the
ventilation system was in excellent condition. He confirmed that
Mr. Carico first informed him in April, 1990, that the ventilation system was out of compliance (Tr. 202).
Referring to the applicable ventilation plan provision,
Mr. Ball stated that each of the numbered developments shown on
the mine map are connectors to the bleeders and that they are
mined into the bleeder from each development as it is driven, and
that each of the four entries in the developments are connected
at strategic location_?. Although stopping have been erected
across the entries, he st 1 believed that there is a connection
between the gob and the bleeder even though the stoppings are
there. He is satisfied that these connections are at strategic
locations and that the stoppings control the air flow through the
gob area in such a way as to minimize the hazard from expansion
of gob gases due to atmospheric change. If the stoppings were
removed, he would be out of compliance with the ventilation plan
provision in question because he would be unable to control or
direct the air or methane to any given location (Tr. 204-205).
Mr. Ball stated that he was familiar with the December 5,
order issued by Mr. Carico, but was on vacation when it was
issued. However, he returned to the mine to investigate the
matter, and learned that the methane readings taken to support
the order were being made
the stopping pinhole cracks and not
from a distance of 1-foot where mine management makes its readings. Mr. Ball disagreed with the inspector's belief that
methane readings 1-foot outby any area being tested are limited
to face areas and he bel
that the 1-foot distance for
taking such readings apply to all mine areas that may be tested,
including stoppings (Tr. 206).
Mr. Ball disagreed with Inspector carico's December 5,
imminent danger finding because he believed that any explosive
mixtures of methane are migrating out of the gob area and are
mixed and diluted with the a
to bring them to an acceptable
level
people are expected to travel. He confirmed the
exi
of. bore holes which are drilled into the gob to liberate the methane from the top of the gob area to the surface so
that it does not get into the mine ventilation system. He was
not concerned about any explosive concentrations of methane on
the gob side migrating to the stoppings because he believed that
the stoppings and bleeder system were intended to allow the

610

methane to migrate into the bleeder system at the stopping
locations (Tr. 209).
Mr. Ball confirmed that he also investigated the
December 13, order issued by Inspector Scammell and discussed it
with the inspectors. He learned that the inspectors were "getting the methane through the cracks, the same as on December 5th.
They really didn't know what to do about it." He confirmed that
the inspectors had some recommendations, which he followed, but
this did not cure the problem because the removal of the stoppings would have resulted in the loss of control of the air (Tr.
210). Mr. Ball confirmed that the mine liberates approximately
20 million cubic feet of methane a day from all sources, and that
it
released from the mine strata as it falls behind the
advancing longwall.
In addition to the boreholes, the mine has
an underground degasif ication program for removing methane before
coal is mined by means of a pipeline which removes methane
through negative pressure and pipes it to the surface {Tr.
211-212).
On cross-examination by Mr. Jackson, Mr. Ball stated that
notwithstanding the erection of the stoppings, the bleeder
entries are nonetheless still connected to the gob. He explained
the air flow through the developments and gob, and confirmed that
Island Creek's ventilation department has advised him of the
direction and amount of air flow through the gob areas, and that
he has made these determinations by observing the direction of
air by throwing a hand full of rock dust in the air. He also
confirmed that he can measure the air, and has done so, but that
he did not know the percentage of air splitting at the face on
December 5 or 13 (Tr. 213-218).
Mr. Ball did not believe that the methane tests by the
inspectors in the stopping cracks were representative of the air
behind the stopping or what was
the bleeder system. He did
not believe that there were big pockets of methane behind the
stoppings, and he suggested that methane rises to the top of the
stopping because it is lighter and this would explain why some of
the methane readings at the top of the stopping were higher than
those made down against the floor.
He believed that the air in
the stopping cracks was mixing with the methane, and he pointed
out that if the air were not mixing with the methane, there would
be 100 percent methane behind the stoppings and not the smaller
amounts found by the inspectors. He believed that the air coming
through the stopping cracks where the inspectors made their tests
was air coming off the longwall through the gob and bleeder
system and mixing with methane behind the stoppings trying to
course it into the bleeder system as it is supposed to (Tr. 226).
Mr. Ball confirmed that the regulators which have been
sealed were adjustable, and that attempts were made in the past
to remove some stoppings and open up some regulators to deal with

611

the methane problem, but that the stoppings were replaced because
pressure was being lost and the air could not be controlled.
This was also done in April, 1990, when the mine was down for
5 days while certain stoppings were opened up and others erected
in an attempt to address the problem. He confirmed that the
April order was issued "in a complete different area from where
we are now," and that stoppings were erected in the area where
the present orders were issued (Tr. 227-231).
On cross-examination by Mr. Mullins, Mr. Ball confirmed that
some of the locations along the longwall gob areas in question
have been partially blocked by the erection of stoppings, and
some have not, and that the purpose of partially blocking some of
the areas is to restrict airflow. He reiterated his view that
opening too many entries will result in a loss of pressure and
control of the air flow.
He further believed that the ventilation plan "works fine for me, 11 and that the use of the bleeder
entries comply with the plan (Tr. 232-237).
Mr. Ball confirmed that metal "Kennedy" MSHA approved
stoppings were recently installed in front of the cited stoppings
in an attempt to address the order of December 13, and he was
informed that MSHA was concerned about the migration of methane
from the gob into the bleeder system and that by checking the
pinholes in the stoppings they could tell there was a buildup
behind the stoppings. The Kennedy stoppings were installed to
prevent any buildup behind them and he was not prohibited frqm
doing this. However, MSHA would not abate the order and took the
position that the inspectors had to return to the original areas
where they tested but they could not do so because of the erection of the new stoppings. He confirmed that no methane levels
or any imminent dangers were found at these new areas, and
Mr" Ball suggested that if he had installed the Kennedy stoppings
earlier, there would have been no orders because there is no
methane at those locations at the present time (Tr. 247).
In response to further questions, Mr. Ball confirmed that
strategic locations of the bleeder connectors are determined by
management with the assistance of professional ventilation staff
people who analyze the air flow needs for the mine. He stated
that he was initially informed that the inspectors were concerned
about methane leaking into the bleeder entries, but that their
position has changed into a concern for methane build-ups behind
the stoppings (Tr. 251-252). Mr. Ball stated that while he did
not doubt the methane readings taken by the inspectors, he
questioned the consistency of the readings taken at the higher
and lower pin hole locations where air is leaking through a
stopping, and pointed out that since methane is lighter than air
it will rise to the top of the stopping.
He also pointed out
that company mine examiners have regularly tested for methane
1-foot outby the stopping and have always used this as a reference point, and they have never been told to use the methodology.

612

used by the inspectors in these cases. He saw no distinctions
between a stopping surface and the face, rib, roof, and floor of
a mine where MSHA requires methane tests 1-foot from those
locations.
Mr. Ball believed that any methane tested against the
stopping must have a chance to dilute, and that it was incorrect
to place the methane detector tube in the pinhole itself because
it does not result in a true reference of what is behind the
stopping.
Since gas is lighter than air, by checking higher up
on the stopping there could be a small pocket of methane in one
corner of the stopping which is still trying to come through the
stopping by pressure which is taking it out (Tr. 254-255).
Mr" Ball stated that the consistent high methane test results by
the inspectors is based on the highest readings at the different
developments which they tested, and that
they made five tests
and received five different readings, they will record and use
only the highest reading (Tr._.255).
Inspector Scammell was recalled by the court, and he confirmed that when he conducted his methane tests at the face of
the stoppings and found high readings, he made several checks to
make sure that they were "constant and holding. 11 He further
confirmed that he would have made three or four readings at each
of the stopping pinhole locations where he could feel the air, at
the top, bottom, or middle of the stopping, but would only record
his highest reading as the basis for the order. He followed this
same procedure at each of the bleeder entries where he tested.
When asked to account for the lower readings, he responded "that
could vary on the half where the crack is.
I don't really know.
It may be the size of the crack.
I have no idea 11 (Tr. 258).
l"Ir. Scammell stated that if three or four methane readings
showed less than an explosive mixture of methane behind the
stopping, and one measurement indicates an explosive mixture, he
would conclude that "it is all bad, 11 and he would also conclude
that the methane was being diluted at the locations where the
f
three samples showed less than an explosive mixture (Tr.
259). Mr. Scammell had no knowledge of the range of all of the
readings which he took, but stated that 11 it wasnijt one or six
percent.
It was more 1
maybe four to six percent" (Tr. 259).

Mr. Scammell confirmed that when he returned to the mine on
December 6, to check on the December 5, order issued by Inspector
Carico, he terminated the order after taking additional methane
readings. When asked why he did not also terminate the
December 5, citation issued by Mr. Carico, which was based on the
same methane readings which served as the basis for the order,
Mr. Scammell explained that while the methane readings were down
and would support the termination of the order, he could not
terminate the citation because he could find no changes which
were made in the ventilation system, other than the replastering

613

of the stoppings, and he felt that Island Creek was still out of
compliance with the ventilation plan because no ventilation
system changes were made (Tr. 3). He believed that the reduced
methane readings were the result of the mine being idled by the
order and not in production, and while the imminent danger no
longer existed, "the citation wasn't cleared up as far as making
changes in their bleeder system for this to happen again" (Tr.
4).
The miners went back to work after the order of December 5,
was terminated, and he extended the abatement time for the
citation to December 20, and he would normally follow up on the
citation to determine whether any ventilation changes or adjustments have been made (Tr. 5). Mr. Scammell confirmed that the
methane readings which he took on December 6, confirmed that the
methane through the pin holes was reduced, and that the ventilation moved the methane away (Tr. 6).
Richard E. Ray, Ventilation Manager, testified that he holds
a B.S. degree in mining engineering, has 11 years of experience
in mine ventilation, including 7 years as a ventilation engineer
with Jim Walter Resources. He explained his duties and confirmed
that they include the design of ventilation systems for Island
Creek's Virginia Mine Division, and directly working with the
operational people at the mine in question. He confirmed that he
is familiar with the mine ventilation system, the gob area, and
the No. 1 through No. 12 development areas. He identified
exhibit C-2, as a reproduction of a mine map which he recently
prepared, and he explained the ventilation in the south gob (Tr.
7-12). He confirmed that he and a team of engineers conducted a
survey of the ventilation system on December 12, 1990, and that
they measured 225,962 CFM of air being directed toward the
longwall face in the No. 12 development intake, 54,960 CFM of air
across the longwall face, and the 170,000 CFM balance was
directed toward the top end of the bleeders. He described the
a
(CFM) coursing through the other relevant development
locations (Tr. 13-18).
Mr. Ray stated that the stoppings are installed to ensure
proper airflow through the entire gob and to insure that the
north end of the gob 11 does not go dead." He stated that positive
ventilation pressure must be maintained to insure that the air is
ventilating the gob, and he explained the airflows and direction
of air flow at the headgate of the longwall at the No. 12 development face to the top of the No. 1 development and through the
gob and set-up entries. He confirmed that the amount of air
going into the bleeder system is for the purpose of diluting the
methane which is being drained from the gob area.
In his professional opinion, and based on his air measurements and knowledge
of the system, he is satisfied that the gob is being ventilated
(Tr. 18-24) .
Mr. Ray believed that the stoppings in question were
installed before he was employed by Island Creek in 1986.

614

He

confirmed that several efforts were made to remove some of the
stoppings when the orders of December 5 and 13, were issued and
he explained what was done. He confirmed that the removal of the
stoppings resulted in worse problems from the No. 9 development
to the No. 1 development in terms of gas coming through the
cracks in the stoppings and out of the top of the No. 1 development regulator. He also explained that holes or "windows" were
knocked out in a number of stoppings to allow air flow to travel
from the gob into the bleeder system, and that this resulted in
higher concentrations of methane at those locations and at the
outby locations at the top of the No. 1 development. After a day
or so, the stoppings were resealed.
Additional efforts were made
to redirect the air to the south bleeders, and Kennedy stoppings
were also recently installed and the methane through the stoppings has been reduced, but as of the hearing date, the
December 13, order had not been terminated by MSHA (Tr. 25-36).
Mr. Ray confirmed that bore holes and vacuum pumps are used
to draw methane from the min~J and he explained where the holes
are located and the measured methane flows from the holes (Tr.
36-41) . He did not believe that the methane readings taken by
the inspectors would be an accurate indication of what was behind
the stoppings at the locations where the readings were taken. As
an example; he cited one bore hole location within a couple of
hundred feet of where 11 those tens of thousands of hypothetical
cubic feet of methane" were located and he confirmed that only
167 CFM of 30 percent methane was being exhausted from that hole.
This reading was taken during the ventilation survey on
December 12, the day before Mr. Scammell's order was issued.
Readings taken on December 5, were very similar to the one taken
on December 12 nwithin a few CFM's and within a percentage point
or two of the thirty percent" methane (Tro 42).
Since methane is
than air and seeks the higher spots, he would expect the
gob elevation areas to have higher concentrations of
methane (Tr. 43).
Mr. Ray confirmed that he was familiar with the ventilation
an provision cited by Mr. Carico, and he was of the opinion
that i\: was not violated because his survey pressure differentials reflect the noted airflow volumes coming out of the top and
bottom of the No. 1 development, and one can deduce from these
air flows that they are going through the active gob current. He
further confirmed that Mr. Carico did not discuss the citation
him, and although the survey was done after the violation
was issued, prior data was ava able, but Mr. Carico did not
consult it and did not speak to anyone in the engineering or
ventilation department (Tr. 46). Mr. Ray did not believe that
one can tell whether a gob is being ventilated adequately by
taking measurements with a Riken detector at a pinhole at a
stopping or several stoppings at the top end of the gob, and that
a survey similar to the one made on December 12, would be necessary to make such a determination (Tr. 50).

615

On cross-examination by Mr. Jackson, Mr. Ray confirmed that
he did not know the methane concentrations in the set-up entries
of the No. 8 development because that area is inaccessible. · He
did know the methane concentrations of the bore hole a few
hundred feet from that location, and it was below 40 percent.
Since gas flows from high pressure to low pressure, he also knew
that the bore hole gas was being pulled from the south, but he
could not prove the range of influence of that bore hole (Tr.
50-52) •

Mr. Ray stated that it was his understanding through conversations with mine management that the inspectors wanted to open
up all of the connectors, and that Mr. Carico indicated that air
should be brought out of some of the connectors to the regulators
rather than stopping them off (Tr. 53). Mr. Ray confirmed that
work on the No. 12 development panel began in July, 1990, and
that additional bore holes were established in that panel and the
No. 11 panel to deal with increased methane liberation resulting
from higher coal produ_ction in those areas (Tr. 54-55).
On cross-examination by Mr. Mullins, Mr. Ray stated that
equal emphasis is being placed on ventilating the entire gob
area, as well as the periphery of the gob.
Referring to the mine
map, he described the flow of air through the development panels,
and he indicated that somewhere near the top of the No. 1 development panel, air comes out at a volume of 22,351 CFM. He
pointed out that the first bore hole ever drilled in the gob was
No. 42, and that it has "been making methane since the April
ventilation change," and since it was not "making methane 11 for
5-prior years, he believed that this was evidence of the fact
·z:hat methane is be
moved across the gob r and that air is
coursing down the bleeder entries (Tr. 58). Mr. Ray further
::::·eiterated that the use of regulators has not proven successful
a~ removing methane out of the stopping pinholes, and he
explained his reasons for this conclusion.
He believed that
there is enough air to push all the methane through the gob with
the current ventilation system, and if the stoppings were opened
ilD
the back end of the gob at the No. 1 development would be
unventilated due to high resistance (Tr. 61) .
Mr. Ray explained the reasons for the recent installation of
second Kennedy stoppings, and he stated that MSHA's
Arlington, Virginia office was concerned that the problems with
the pinholes would lead to excess concentrations and volumes of
methane leaking into the bleeders. Mr. Ray stated that he wanted
to insure that if there was a possibility of this happening, that
the methane was being diluted before it got into the bleeder
system.
The second stopping will encourage the mixing of air and
any methane coming out of the cracks through the connector
crosscut into the bleeders (Tr. 61-62).
~he

616

Donald W. Mitchell, self employed mining engineer, was
accepted as an expert in mine ventilation and mine fires and
explosions, and his resume reflecting his educational background,
experience, and published works in those fields were made a part
of the record (exhibit C-5, Tr. 71-72). Mr. Mitchell stated that
he has been familiar with the subject mine "since the early
'70's," has been involved in a number of ventilation studies in
the mine, and was actively involved in 1984 and 1985 when he made
a study of the mine gobs, including the squth gob, following a
mine fire.
He confirmed that the study was made in his capacity
as a consultant for Island Creek. He further confirmed that he
has within the past week, studied the ventilation of the south
gob, including an analysis of the pressure differentials and the
air flows, and comparing them with the "early 1 80's and '?O's,"
using a map similar to exhibit C-2, which was given to him by
Mr. Ray (Tr. 73).
Based on this information, and map exhibits
C-2 and C-3, and since air always flows from high to low pressure, he has concluded that any air movement within the gob will
be away from the face and towards the south bleeder and towards
the bleeders to the far left of the areas marked on map exhibit
C-3 (Tr. 76).
Mr. Mitchell stated that one would expect to find methane in
the south gob, and since methane is lighter than air, it will
rise towards the highest point in the gob.
Depending on the air
quantity and velocity, the airflow will pick up from a little to
a lot of methane and dilute it and move it away to someplace
where it can escape from the gob. He confirmed that methane
concentrations between 5 percent and 15 percent can be expected
in the gob because at the point where the methane is being
liberated it
close to 100 percent, and if it is zero at the
pinhole locations in the stoppings then "by definition somewhere
between zero and close to a hundred it is going to be 5 to
1~ percent.
Thatis just basic logic 11 (Tr. 78).
Mr. Mitchell stated that the purpose of a bleeder system is
to dilute and sweep away, and thus render harmless, methane that
put into the bleeder system or escapes into the bleeder
system.
He explained that when there is a drop in the barometric
pressure there is an increase in the volume of methane, and by
having a bleeder and a pressure differential the increased volume
of methane will, instead of flowing into the working face in the
active workings, be forced away into an area in which there are
no igniting sources. Mr. Mitchell was aware of no MSHA standards
that require gobs to be examined for methane.
However, bleeders
must be traveled at least once a week where they are safe to
travel, and they are examined for methane concentrations, roof
and water conditions, and to insure a flow of air through the
bleeder. Methane examination in a bleeder are made where the
split of air from the gob enters the bleeder, and where these two
splits join, methane must not be in excess of 2 percent. Various
methane detectors or bottle samples are used to test the methane

617

in the bleeder split, and a detector is "typically used" (Tr.
81) .
Mr. Mitchell stated that if the methane readings taken by
the inspectors at the stoppings in the No. 8, 9, and 10 developments were taken at the higher elevation of the stopping, where
leakage through the stopping is typically greatest along the roof
line, one would expect to find higher concentrations of methane
than any place else. This would be true in the No. 8, 9, and 10
developments because they are at the highest elevations in the
gob, which is obvious from the contour lines shown on map exhibit
C-3, and there is an abnormal release of methane in the gob due
to severe barometric low pressures exhibited during the month of
December. Under these circumstances, abnormal releases of
methane would not be unusual or uncommon, and along the roof line
behind the stopping there is probably a higher layer of methane
that has not been diluted and swept away. This is to be expected
because it is almost impossible to dilute and remove these layers
of methane (Tr. 83-84).
Mr. Mitchell stated that if the methane readings were made
at mid-height in the stopping, he would be concerned that there
might be more methane behind the stopping than would be normal
with a thin layer.
If methane was found at the bottom of the
stopping "this would tell us that indeed there's a potential for
a larger volume of methane.
* * * as you go from top to bottom
the quantity of methane likely to be found behind the stopping
increases." If eight sample readings are below the explosive
range, and one was above, "that would tell us that there is a
potential that we might have a layer of methane, and typically
these layers are relatively thin.
* * * in this specific area
they might be thicker than one or two inches but such layers are
not uncommon in the Pocahontas seam" (Tr. 84).
Mr. Mitchell was of the opinion that the use of the Riken
detector to measure the methane at the stoppings by sticking the
tube in the pinhole cracks would not result in an accurate
reading because the Riken is a form of methanometer which he
described as an ''interferometer type" which is sensitive and
calibrated for specific gases. Assuming the inspectors calibrated the detector for methane, it would be influenced by other
gases which are normal to gobs, and particular the south gob.
If
there were an oxygen deficiency, the detector would read higher
than true methane, and for each percent of oxygen deficiency one
can anticipate at least .2 percent methane, and if there was
4 percent methane and a 1 percent oxygen deficiency, the Riken
detector would read 4.2 to 4.3 percent methane.
There would also
be a .2 percent difference for each excess of 1 percent nitrogen,
and with the presence of ethane, which is always present with
methane in the Pocahontas coal seam, there would be a difference.
As an example, he stated that 1 percent ethane is equivalent to a
3 percent reading of methane, and a one-tenth percent ethane

618

reading would be equivalent of another .3 percent methane (Tr.
85-86}.
Mr. Mitchell stated that the Bureau of Mines published a
paper in 1960, advising that the Riken detector not be used where
the atmosphere being tested is not a normal air with methane
mixture, and that "if you don't know the atmosphere then there's
no way that you can understand what the reading is." He believed
that the only way to make a proper determination is with a bottle
sample, and he stated that if there is a major deficiency of
oxygen, which is not uncommon in gobs, a 10 percent deficiency
would be the equivalent of 2 percent methane (Tr. 86).
After reviewing a copy of the December 13, order, and the
Riken methane detector test results recorded by Inspector
Scammell (exhibit G-5), Mr. Mitchell compared those results with
the three bottle sample results taken at the No. 8, 9 and 10
developments and analyzed by MSHA's laboratory (exhibit C-1). He
confirmed that the Riken read:ing recorded on the order for the
No. 2 entry in the No. 10 development shows 6.2 percent methane,
and that the bottle sample taken at that same location shows
approximately 5.5 percent (5.47) methane, or a difference of
.7 percent. He explained that the difference was in the oxygen
deficiency and methane concentrations, and that the Riken reading
would be representative if one considered the oxygen and methane
concentrations. He arrived at similar conclusions with respect
to the Riken reading of 6.3 percent methane for the No. 4 entry
in the No. 9 development, and a bottle sample result of
5.09 percent methane at that location, and the Riken reading of
6.7 percent methane for the No. 4 entry in the No. 8 development,
and a bottle sample result of 5.8 percent (5.75) methane at that
location (Tr. 87-89).
Mr. Mitchell was of the opinion that methane detected coming
through a pinhole in a stopping is not a reasonably accurate
indication of what is on the other side of the stopping and it
would not be an indication that the gob was not being ventilated.
He believed that the gob is being ventilated in accordance with
established ventilation guidel
, and that with the numerous
bore holes in the south gob, i 1 the evidence leaves no question
that there
a flow of air from the headgate entry of Number 12
development through and across the
to the far reaches of the
gob which is the intent of proper bleeder ventilation -- of gob
ventilation" (Tr, 91-92).
In response to a hypothetical question based on the testing
procedures followed by the inspectors with the use of the Riken
detector, intermittent detections of explosive and non-explosive
mixtures of methane, and knowledge of prior mine fires,
Mr. Mitchell was of the opinion that it would not be reasonable
to conclude that an imminent danger existed because "for an
imminent danger to exist one must put it in context -- one must

619

put in an igniting source in conjunction with the methane" (Tr.
94). Mr. Mitchell stated that the sole source of any ignition in
the area would be at the face area and that the face area has
historically been associated with the past mine fires.
He would
also be mainly concerned about the pressure differential between
the face and the stopping points because in prior years there was
a problem with methane backing out on the face because the
pressure differentials were half of what they are today (Tr. 95).
Mr. Mitchell believed that it was essential that the gob
stoppings in the development areas in question remain intact and
that to remove them "would be terrible" because it would result
in 11 dead space" due to lower resistance. As an example, if this
were to occur at the No. 9 development, the great majority of the
air now flowing through and across the gob would go out the
entry, leaving the gob to the left relatively unventilated. A
barometric pressure drop could result in a flow of methane into
the No. 12 development panel which is an active working area and
where there are sources of ig~t.tion (Tr. 97). Mr. Mitchell did
not believe that it was a bad practice to install regulators,
provided they do not prohibit air flow through and across the
entire gob, and he explained the various regulator problems which
he believed were the reasons for sealing them. Mr. Mitchell
agreed that "any time you have an uncontrolled gob you've lost
your control over it and you have created an unacceptable hazard"
('I'r.

9 7 -9 9 ) •

On cross-examination by Mr. Jackson, Mr. Mitchell was of the
opinion that since a stopping concrete block is permeable, it
could, over time, accumulate methane within the block, and if a
pressure differential were introduced in the atmosphere, the
block would liberate methane (Tr. 100). He stated that methane
~ould gravitate to the No. 8, 9, and 10 developments because
::.hose areas are at the highest elevation.
The elevation has
~othing to do with the ignition characteristics of methane which
do !1ot change because of any higher elevation, and that "methane
ignition characteristics are specific characteristics no matter
where it be" (Tr. 104). He confirmed that methane layers are not
~ncommon in the mine coal seam, and that the critical factor in
disbursing or mixing any layers of methane would be the velocity
of the air flow (Tr. 105). He explained that the method for
istermining the amount of a
flow velocity necessary to disburse
l
of methane involves ,; 2 rather complex formula 11 which he
worked out in 1983. Based on the air flowing through the area in
question he believed that "in the south bleeder there
a low
probability for a layer to form.
I would say that the south
bleeders are well ventilated within the state of the art 11 (Tr.
106) •

Mr. Mitchell stated' that assuming the inspectors had "soda
lime and dry-right" in their Riken detector scrubbers, the
difference in their Riken methane readings and the laboratory

620

bottle sample results would be the presence of methane and
oxygen, and excess nitrogen in the three samples. He confirmed
that ethane gas is flammable, and while the presence of ethane
does not make the gas any safer 11 it does raise questions as to
the proper use of a Riken for circumstances that would lead to a
closure of the mine" (Tr. 107). He conceded that although these
differences do not detract from the fact that the methane mixtures were explosive, and makes no difference in this case, he
nonetheless believed that it is improper to base an imminent
danger determination solely on the use of a, Riken detector unless
you know what the atmosphere is where you are testing. He stated
that "had these samples come back, and they could have, with much
lower percent oxygen then you might have had a closure order
issued without any reasonable basis" (Tr. 109).
Mr. Mitchell believed that any indication of explosive
levels of methane found by an inspector with a Riken detector
should trigger further inquiries on his part to determine whether
or not ignition sources are readily available, and that any
determination in this regard'Would require him to go to the
working face to determine whether there are any ignition sources
which would create an imminent danger. Mr. Mitchell stated that
"we could fill this room with methane and there is no hazard as
long as we don't flip a switch" (Tr. 110).

Mr. Mitchell confirmed that major roof falls have occurred
in the south gob area from the stoppings in the set-up entries
into the gob (Tr. 111-112). He also agreed that there could be
falls within the gob, but he did not believe that it was reasonable to believe that such falls could by themselves be an ignition source for methane in the gob. He confirmed that the bas
for this conclusion is his extensive study and expertise in
frictional ignitions. He pointed out that the only experience
relied on by the inspectors for any potential frictional ign
tions
limited to the mine
question.
Since he (Mitchell)
was aware of the conditions leading to the mine ignitions in the
past, he assumed that the inspectors had that same knowledge (Tr.
114) •

Mr. Mitchell confirmed that he was famil
with the MSHA
reports concerning the four prior mine fires, and he pointed out
that with respect to two of those fires, MSHA did not Hconclude 1i
that they were caused by roof falls, and only found that roof
falls were among the potent 1 sources.
He further stated that
although 91 at one time I did not argue against that," detailed
studies of the mine which he and MSHA have conducted show that
the probability of a roof fall being an ignition source
so
small and of relative insignificance, and that "it's not something an engineer would consider reasonable and proper today 11
(Tr. 115-116).

621

Mr. Mitchell did not believe that an inspector can make any
judgment about the ventilation or methane behind the stopping
based solely on methane readings, and that "a combustible atmosphere at a stopping by itself needs (sic) nothing" and indicates
nothing relative to a hazard.
He pointed out that there are no
laws precluding concentrations of methane in a gob, and if there
were, "you would shut down almost every mine in these United
States." He further pointed out that the laws are specific as to
the amount of methane permitted in active workings where men are
working, and that in this case, there are no required methane
percentages for the areas which were tested because "it is
unreasonable to set a percentage there because that percentage
could be anything you want it to be depending on where you are
when you take the reading" (Tr. 129).
On cross-examination by Mr. Mullins, Mr. Mitchell stated
that the conditions which were present on December 5 and 13, when
the orders were issued complied with the ventilation plan as he
interprets it, and he explained the effect of the stoppings which
are in place as follows at (Tr. 142):
What we have done is prevented the air from escaping
into the south bleeder. Much of it.
We have some
leakage into the south bleeder and the purpose of those
stoppings is to make sure that the air to control
airflow through such gob area and through such gob area
means (sic) from number 12 Development panel to the
bleeder to the far left.
That is what this says and
that is what is being done.
That is what I testified
to.
I hope.
E. Tisdale, Senior Mining Engineerr MSHA D
sion of
2,a
, Arlington 1 Virg
was called in rebuttal by JViSHA and
was accepted as an expert
mine ventilation and safety.
He
~onfirmed that he has been present during the course of the
hearing, viewed the witnesses, and has reviewed the exhibits"
It
was his opinion that the adequacy of the ventilation of the mine
gob area is 11 borderline to inadequate 11 (Tr. 152). Using the
map of the area
on, exhibit C-2, with the ventilation
readings taken by Island Creek as noted on the map during a
ventilation survey made on December 12, 1990, he explained his
ana
is of the ventilation and methane, including the quantity
and velocity of the a
flow
the gob: longwall, and bleeder
of the developments in question.
He confirmed that the
gob area was approximately 6,000 feet long, and that 226,000
cubic feet of air per minute was entering the longwall and gob
area at the intake of the No. 12 development (Tr. 153).
Mr. Tisdale calculated that 80 percent of the air at the
No. 12 intake is coursed to the bleeder entries and is separated
from the gob 11 and does no work there," and that an additional

622

22,000 cubic feet a minute is isolated from the gob. He calculated that 27,000 cubic feet a minute is left to ventilate the
gob area, that the air velocity would be 4-1/12 feet a minute,
and that it would take 20 hours for the air to travel a mile at
that velocity. He concluded that 27,000 cubic feet a minute of
air for 6,000 feet of gob "is stretching it" (Tr. 154).
Mr. Tisdale pointed out that the map shows 22,351 cubic feet of
air per minute and 3.78 percent methane coming out at the top of
the No. l development, and after making further calculations, he
concluded that 8.9 percent methane is being delivered to the
bleeder entries "which supports the inspectors efforts to probe
in there through the cracks behind the samples (sic)" (Tr. 157).
Mr. Tisdale stated that the stoppings "are extremely well
constructed," even though they have "hairline cracks," and he
calculated that the average quantity of air pushed through the
plastered stoppings by the ventilation pressure would result in
an air velocity of 30 cubic feet a minute for stoppings. He
would expect to find such more than 30 cubic feet a minute, and
that a "rule of thumb_ would be one inch of pressure in a stopping
would give you 100 cubic feet a minute" (Tr. 155). He believed
that the system can function properly as long as the seventh
entry accepts air flow. However, as the set-up entries deteriorate to the point where they become resistant, they will not
accept more air flow with the available pressures, and the system
becomes ineffective. He had no idea when this may have occurred,
and stated that "at one time this could have been a satisfactory
system" (Tr. 159).
Mr. Tisdale made further calculations with respect to the
airflow through the south bleeders, and confirmed that the
2 percent methane level requirement found in the ventilation plan
would apply at the junction of the south and east bleeders. He
calculated that there would be 1.9 percent and 2.2 percent
methane at two locations, and concluded that "this ventilation is
extremely borderline with respect to meeting the 2 percent limit
at this junction." He agreed that any "tinkering" which flushes
out more methane, or any air regulation that reduces the quantity
of air available for the total split "will take them above the
2 percent limit at this point and make the whole system no go.H
He believed that this was the crux of the problem, and that due
to the extensive gob, the solution will be difficult (Tr. 159).
Mr. Tisdale confirmed that he was not aware of anything in
these proceedings that would indicate that the mine ventilation
was significantly different on December 5, and 13, 1990.
Based
on his analysis, and the testimony he has heard in these proceedings, it was his opinion that the longwall set-up entries contain
an excessive 9 percent methane "in the major part of their
length," and an accumulation of explosive methane behind the
setup entries in the south gob (Tr. 162).

623

In response to questions concerning the adequacy of the
testing procedures used by Inspectors Carico and Scammell to
determine whether methane had accumulated in the gob, Mr. Tisdale
stated as follows at (Tr. 163):
A. Well, their methods I consider a bit crude, but it
was the tool that they had to use to try to deduce what
was behind the stoppings in the set-up entries and, if
anything, their samples would have shown less methane
than was on the other side of the stopping because of
the difficulty to keep the sample from being contaminated by air on the bleeder side of the stopping.

Q. All right. Now, you've heard that they took more
than one reading at many of the locations in the
entries to the south bleeders, but that they only used
the higher measurement. Which measurement, of that
number they took in one area -- which measurement would
most accurately reflect or accurately measure the
methane levels in the air behind the stopping? The
highest reading or the lowest reading?
A. Well, because of the potential for contamination, I
would say the highest reading.
Mr. Tisdale stated that a concrete block, as manufactured,
does not contain or generate any methane. He was of the opinion
that methane would flow through the block, which is only a
conduit, and that any methane in the block would have no effect
whatsoever on the accuracy of the readings taken with a Riken
detector (Tr. 164). He confirmed that since methane is lighter
than air it will lay against the roof in an atmosphere of low
vel
ty.
There is broken roof where caving has taken place in
inity of the set-up entries, and if the methane laying
inst the roof is not pushed down by other methane or mixed
the air, it will seek its highest level and there could be a
layer of methane,
If the ventilation velocity in the set-up
entries is sufficient to cause mixing of the air and methane, no
further layering will take place because once mixed, methane is
always mixed and will not separate. He believed as a g1 rule of
thumbu 100 feet of air per minute was sufficient for mixing and
preventing any layering of methane, and that based on his calculations, he did not believe that such velocity was present in the
set-up entries (Tr. 165).
Mr. Tisdale was of the opinion that there is an ignition
risk in the south gob through a roof fall that can create enough
arcs and sparks to ignite any flammable mixture of methane in the
a
He stated that roof falls have caused methane ignitions in
the mine gob and that there have been two mine fires in the south
gob.
He identified copies of MSHA's reports regarding these

624

fires, and also identified a copy of an MSHA memorandum concerning an examination of rock specimens from the mine (exhibit G-10,
Tr. 166-167). Mr. Tisdale believed that the inspectors "were
justified in their actions," and based on the evidence and
testimony in these proceedings, he was of the opinion that there
was a reasonable likelihood of an ignition of the explosive
accumulations of methane in the south gob on December 5, and 13,
1990, if mining operations were to continue with no changes in
the conditions which were present (Tr. 170).,
On cross-examination by Mr. Biddle, Mr. Tisdale confirmed
that the stoppings between the No. 7 and No. 11 developments have
effectively closed off the bleeders from the gob.
In his opinion, considering the fact that not much air flow can go through
the set-up entries, the ventilation plan was not being followed
in ventilating the gob. He agreed that the "active words" of the
ventilation plan are "connected at strategic locations," and he
confirmed that there were connections between the bleeders and
the gob (Tr. 171-172) . . He cqpfirmed that there is a difference
of opinion as to whether the connections are at "strategic
locations," that the ventilation plan does not define what this
means, and that neither MSHA or the company have told each other
what they consider to be "strategic locations'' (Tr. 172).
Mr. Tisdale confirmed his belief that the longwall set-up
entries in the No. 8, 9, and 10 development area behind the
stoppings probably had 9 percent or more methane from "somewhere
around 8 or 9 Development, I think that's a good assumption" (Tr.
173). He agreed that there was a pressure differential between
the gob side and bleeder side and that the air coming out "had to
have some push. 11 In response to a question whether one can
assume that since Inspector Carico found methane coming through
one stopp
at the No. 8 development, but found no methane
coming through the other three stoppings in that development,
that 9 percent methane in the set-up rooms would only come
through sometimes but not all of the time, Mr. Tisdale responded
"I assume there were no cracks in the other stoppings" (Tr. 174)
He denied that he ever heard the inspector testify that he took
several methane readings at any given stopping hole and found
only one reading over 5 percent (Tr. 174). He also confirmed
that there is no standard prohibiting 9 percent methane in a gob
(Tr. 175) .
On cross-examination by Mr. Mullins, Mr. Tisdale stated that
his estimate of 9 percent methane concentrations pertains to
methane in the set-up entries adjacent to the gob and adjacent to
the bleeder entries, and not in the "gob" (Tr. 176). He confirmed that the concept of "strategic locations 11 for stoppings
will change depending on the need to induce airflow in the set-up
entries. The determination of whether any stopping is at a
strategic location under the ventilation plan would depend on
"whether it would work or not, 11 and one has to plan the number

625

and locations of openings and the amount of air regulation on
those openings so that the whole system is effective (Tr. 177).
In response to further questions, Mr. Tisdale confirmed that
he was not aware of any mine citations for exceeding the 2 percent methane requirements for certain mine locations. He agreed
that any 11 tinkering 11 with the ventilation system may solve one
problem but will create another one. He explained that reducing
the amount of air by increasing the regulation to try and stimulate more air flow to the set-up entries, will jeopardize the
2 percent maximum allowable methane at other places (Tr.
179-181).
Mr. Tisdale stated that the inspectors were trying to
determine what was behind the stopping by using the test procedures with the Riken detector, and he stated that 11 I think I've
shown them, through this analysis, that there are other ways to
determine what's behind." He believed that the inspectors
conclusions as to what was behind the stoppings was at least what
they measured on the 0,utby side. He also believed that a bottle
sample is more difficult to take properly than a Riken reading
because of the increased chance of contamination. He would
expect a bottle sample to show a lesser percentage of methane,
but that both methods are subject to marginal errors due to
certain factors.
Mr. Tisdale was of the view that the ultimate
solution for determining what is in the gob is to incorporate a
method for evaluating the gob as part of the ventilation plan.
He confirmed that this is not in the present plan (Tr. 187). He
also confirmed that none of the prior mine fires involved any
injuries or fatalities, and he believed that one of them occurred
in the set-up entry, and that they all occurred behind an active
longwall (Tro 188).
Findings and Conclusions
Imminent Danger
Section 107(a) of the Mine Act, 30 UoS.C.

§

817, 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, such representative shall
determine the extent of the area of such mine throughout which the danger exists, and issue an order requiring the operator of such mine to cause all persons,
except those referred to in section 104(c), to be
withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the
Secretary determines that such imminent danger and the
conditions or practices which caused such imminent

626

danger no longer exists. The issuance of an order
under this subsection shall not preclude the issuance
of a citation under section 104 or the proposing of a
penalty under section 110.
Section 3(j) of the Mine Act, 30 u.s.c. § 802(j), defines an
"imminent danger" as "the existence of any condition or practice
in a coal or other mine which could reasonable be expected to
cause death or serious physical harm before such condition or
practice can be abated."
In Old Ben Coal Corp. v. Interior Board of Mine Operations
Appeals, 523 F.2d 25, 32 (7th Cir. 1975) ·(quoting Freeman Coal
Mining corp., 2 IBMA 197, 212 (1973), aff'd
nom. Freeman coal
Mining Co. v. Interior Board of Mine Operations Appeals, 504
F.2d, 741, 743 (7th Cir. 1974), the determining test of whether
an imminent danger exists was stated as follows:
[E]ach case must be decided on its own peculiar facts.
The question in _every d:fse is essentially the proximity
of the peril to life and limb.
Put another way: Would
a reasonable man, given a qualified inspector's education and experience, conclude that the facts indicate
an 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.
In Rochester & Pittsburgh Coal Company v. Secretary of
===-==' 11 FMSHRC 2159, 2163 (November 1989), the Commission
adopted the position of the Fourth and Seventh Circuits in
Eastern Associated Coal Corporation v. Interior Board of Mine
Operations Appeals, 491 F.2d 277, 278 (4th Cir. 1974), and
~~-=~-=-_::::_:~~· v. Interior Board of Mine Operations Appeals,
523 F.2d 25, 33 (7th Cir. 1975), holding that "an imminent danger
exists when the condition or practice observed could reasonably
be expected to cause death or serious physical harm if normal
mining operations were permitted to proceed in the area before
the dangerous condition is eliminated.'' Canterbury Coal Co.,
6 IBMA 175, 178 (1976) (quoting Rochester & Pittsburgh Coal Co.,
5 IBMA 51 (1975), held that "speculative potential for a remote
possibility does not warrant the issuance of an imminent danger
withdrawal order."
In affirming the imminent danger order issued in the 1989
Rochester & Pittsburgh Company case, supra, at 11 FMSHRC 2164,
the Commission rejected an argument based on the "relative

627

likelihood" of injury resulting from the cited conditions, and
stated as follows at 11 FMSHRC 2164:
R&P's argument also fails to recognize the role
played by MSHA inspectors in eliminating dangerous
conditions. Since he must act immediately, an inspector must have considerable discretion in determining
whether an imminent danger exists. The Seventh Circuit
recognized the importance of the inspector's judgment:
Clearly, the inspector is in a precarious
position. He is entrusted with the safety of
miners' lives, and he must ensure that the
statute is enforced for the protection of
these lives. His total concern is the safety
of life and limb. . . . We must support the
findings and the decisions of the inspector
unless there is evidence that he has abused
his discretion or authority.
(Emphasis
added) .
Old Ben, supra, 523 F.2d at 31.
Docket No. VA 91-47-R. Section 107(a) Imminent Danger Order
No. 3354742, December 5, 1990.
The evidence establishes that Inspector Carico began his
inspection on December 5, 1990, at the No. 12 Development and·
proceeded inby the longwall face along the development entries
where he found no ventilation problems and no significant methane. He determined that the air ventilation was flowing normally
and as expected from the No. 12 Development toward the No. il
Development where he checked two entries and took air readings.
He found that the vent ation was acceptable, and he continued to
examine the 11 dead-end entries 11 and bleeder connectors in the
No. 11 Development and found that these areas were being properly
ventilated. He confirmed that two other MSHA inspectors checked
the ventilation in the headgate entries adjacent to the No. 12
development panel gob and the tailgate entries from the face to
the mouth of the panel where it intersected the main returns, and
that no violations were found by these inspectors.
Mr. Carico confirmed that after leaving the No. 11 Development he proceeded to the No. 10 Development where he found four
stoppings across the four entries. Three of the stoppings were
0 air tight" and he found no leakage.
However, he found air
leaking through pinhole cracks at the stoppings in the No. 2
entry, and when he placed the tube of his methane detector in the
crack where a 11 minute amount of air was leaking," the instrument
read 6.2 percent methane. The inspector believed that the
methane behind the stopping may have possibly been a "localized"
problem, or "a small body of methane trapped behind a single

628

brattice, 11 and he made no imminent danger decision at that point
in time. He did not test the stoppings in the other three
entries because the air leakage around the stopping perimeters
was within a foot of the roof and ribs and any methane readings
would have been "artificially high and not representative" (Tr.
86) •

Mr. Carico next proceeded to the No. 9 Development where he
took a methane reading at one of the stoppings in the No. 4 entry
and found 8.3 percent methane when he took
reading against that
stopping. He confirmed that he "did not bother" to test the
other three stoppings in the other three entries in this development (Tr. 29). Although he believed that an "imminent danger was
probable" at that point in time, he reached no firm conclusion,
and proceeded to the No. 8 Development where he tested the
stopping in the No. 4 entry and found 7.5 percent methane when he
took a reading against the stopping. He did not test the other
three stoppings in the other three development entries. Upon
completion of the methane reading at the No. 4 entry, Mr. Carico
concluded that an imminent danger existed and his conclusion in
this regard was basea on his belief that "there was a substantial
body of methane in the gob area encompassing probably 12 entries
in the form of the bleeder connectors back to the gob and most
probably be associated to set-up entries" (Tr. 31).

a

Mr. Carico's conclusion that "there was a substantial body
of explosive methane" behind all of the stoppings in the three
developments in question was based on the methane readings taken
with a Riken methane detector at three of the 12 stoppings
located in the 12 entries, an area covering approximately
1,000 feet.
The readings he obtained prompted the issuance of
the order. Mr. Carico concluded that the high methane readings
resulted from an inadequate bleeder ventilation system and
insufficient air flow which failed to dilute the methane which he
measured at the three stoppings, and this prompted him to also
issue a citation at the same time. He characterized the inadequate ventilation as an "associated problem" because it was not
diluting the methane, and he stated that the citation "helped to
define the cause of the imminent danger. 11
Mr. Carico confirmed that he took some bottle samples in
support of his order and citation, but that they were lost in the
mail and were never received by MSHA's testing facirity.
He
further confirmed that he made no tests to determine the oxygen
content of the air leaking through the three stopping cracks
where he made his methane readings. He conceded that the air
oxygen content is "definitely a factor" in determining whether
there is an explosive mixture of methane present, and that one
cannot determine whether there is an explosive mixture of methane
behind a stopping "with a sole finding of my methane level" (Tr.
87) •

629

There is no evidence that any explosive methane was leaking
through the stoppings into the bleeder entries. Mr. Carico
confirmed that he made no readings outby the stoppings in the
bleeder entries, and he conceded that his methane readings
against the stoppings "would not indicate what was going on in
the bleeder." He further confirmed that he would expect that any
methane bleeding through the stoppings would mix and dilute with
the ventilation air in the bleeders and be carried through the
bleeder entries out of the mine through the exhausting fan
shafts.
Mr. Carico confirmed that at the time he made his decision
to issue the imminent danger order, he considered the explosive
mixture of methane which he believed was behind the stoppings to
be a hazard and that "the only thing lacking for an explosion is
the ignition source" (Tr. 30). He further confirmed that based
on his collective knowledge and understanding of the "history of
the mine," he knew that there were possible ignition sources
associated with the gob (Tr. ~~). The record reflects that the
"mine history" relied .on by Mr. Carico includes (1) four MSHA
reports covering mine fires which occurred in 1972, 1975, 1983,
and 1984 (exhibits G-6 through G-9), two of which he believed
were located in the south gob area (Tr. 23); (2) an MSHA memorandum report dated June 25, 1973, concerning an examination of rock
specimens from the mine; and (3) a prior face "methane inundation" which Mr. Carico believed occurred sometime in 1985 (Tr.
104-106).
None of these prior incidents resulted in the issuance
of any violations.
Notwithstanding his testimony that the prior mine fires were
of unexplained origin, and that there was no conclusive proof to
establish what may have caused them (Tr. 35), Mr. Carico believed
that one of the recognized possible ignition sources for the
fires nwas roof falls in the caving areas of the longwall units"
(TL 32)"
He explained that the "roof contains massive sandstone
with layers of quartzite contained in that sandstone. Quartzite
is highly sparked and has been known to ignite bodies of methane"
(Tr. 3 2) .
In addition to the prior mine fires, Mr. Carico identified
the following possible ignition sources which he believed could
affected the south gob area:
(1) an ignition along the face
area propagating into the gob and igniting methane in the gob
adjacent to the longwall face, and which could have involved the
body of methane behind the cited stoppings; (2) welding or
cutting along the longwall face, (3) open flames and the bolting
of metals which could ignite methane leaking from the mine floor,
and (4) work connected with ventilation adjustments and repairs
in the bleeder entries, and sparks created by the use of hammers
on the metal ventilation brattices (Tr. 34). Mr. Carico confirmed that his knowledge of the prior mine fires, coupled with
the possible ignition sources which he identified, led him to

630

conclude that "it was fairly likely" that death or serious injury
would have resulted if normal mining operations were to continue
on December 5, 1990 (Tr. 35).
The record reflects that the south.gob area is a large
inaccessible area left by 10 mined out longwall panels encompassing an area of approximately 5,600 to 6,000 feet.
The gob
contains roof materials and other debris left when the roof caved
in after coal was extracted from the longwall panels. The caved
areas may or may not be "caved tight" throughout the entire gob,
and since the gob is inaccessible, the actual conditions of any
remaining top area in the gob are not known.
The parties presented no evidence or testimony with respect
to the actual prevailing roof conditions at the time Mr. Carico
issued his order.
However, the information contained in the MSHA
fire reports, which appears to be consistent in each report,
reflects that the immediate mine roof varies from fragile shale,
interspersed with coal stringer, to sandstone, and that the main
roof is sandstone and the max1mum cover is 2,500 feet.
The
reports also indicate that the Pocahontas No. 3 coalbed is known
to liberate methane freely, and that large quantities of methane
is liberated when the roof caves in the mined out areas behind
the longwalls.
The 1983 and 1984 MSHA reports reflect that the Pocahontas
No. 3 coal is not highly susceptible to spontaneous combustion,
and that the emulsion used in the hydraulic longwall roof supports is nearly 97 percent water and that its susceptibility to
spontaneous combustion is low (exhibits G-9 and G-10, pgs. 9,
12).
The 1984 report notes that additional analyses indicated
similar results with respect to any coal spontaneous combustion.
The MSHA 1972 and 1975 reports reflect that the factors
which probably confined the spread of the ignition and fire which
were the subjects of those reports were (1) the mine surfaces in
the face and mined out areas were wet to damp because of the
large quantity of water used by the longwall spray system;
(2) the bleeder entries were rock-dusted~ and (3) the relatively
low volatile ratio of the Pocahontas No. 3 coal (exhibits G-6 and
G-7, pgs, 14, 14).
The June 25, 1973, MSHA memorandum reflecting the results of
an examination of rock specimens found in the mine (exhibit
G-10), which I assume was prepared in connection with the
December 5, 1972, fire, indicates that the rock which fell behind
the longwall face was medium grained sandstone containing quartz
crystals.
The concluding paragraph of the report states as
follows:
A methane ignition would be possible with this
type of material.
Friction occurring due to rocks

631

rubbing together during a massive roof fall would
create sparks and/or pressure and frictional heat
capable of igniting an explosive mixture of methane and
air.
The Dictionary of Mining, Minerals, and Related Terms, U.S.
Department of the Interior, 1986, defines sandstone as "a
cemented or otherwise compacted detrital sediment composed
predominately of quartz grains" (pg. 961).
nQuartzite" is
defined as "a quartz rock derived from sandstone, composed
dominantly of quartz, . • • a very hard, dense sandstone"
(pg. 885).
I take note of the fact that the 1983 report, at
pg. 12, reflects that the 1972 and 1975 fires were attributable
to sparks created by "falls of quartzite roof." However, the
1972 and 1975 reports reflect that based on "information" and a
11 consensus"
during the investigations of those incidents, ignition occurred as the result of "falls of sandstone roofs." Under
the circumstances, it would appear that the terms "sandstone" and
11
quartzite 11 are used synonymously in these reports.
There is no evidence that Mr. Carico examined the roof
conditions in the three development areas where he conducted his
inspection, nor is thee any evidence that he had any knowledge of
any prevailing or recent roof conditions which may have posed a
potential for creating a spark or providing an ignition source.
There is also no evidence of the existence of any recent roof
falls in the bleeder entries which he examined, or whether Island
Creek had ever been cited for roof violations in those areas~
The only basis for Mr. Carico's conclusion that a roof fall in
the gob area could possibly ignite the explosive mixtures of
methane, which he speculated were behind the stoppings, was his
knowledge and belief, gained from the MSHA reports in question,
that a sandstone mine roof containing layers of quartzite was a
potential ignition source because quartzite is a highly 0isparking11 material which has been known to ignite methane.
A close review of the 1983 and 1984 reports relied on by
Mr. Carico, reflects that following the 1975 fire, Island Creek
instituted a drilling program to locate any quartzite roof
formations, and that it was of the opinion that in any roof areas
where any quartzite was present 25 feet or more above the immediate roof, there would be less likelihood of an ignition occurring
and that any longwall mining could be safely done.
I assume that
MSHA concurred with Island Creek's position since both reports
state that 11 these guidelines have been followed and no further
ignitions have been attributed to this source" (exhibit G-6,
pg. 12, paragraph 7; G-9, pg. 9, paragraph 7).
MSHA's reports of the 1983 and 1984 fires concluded that the
location of the fires could not be determined, and that there was
insufficient evidence to conclusively identify the ignition

632

sources (exhibit G-8, pg. 14; G-9, pg. 10). Some of the "possible" ignition sources for the 1984 fire were identified as
(1) spontaneous combustion, (2) cutting and/or welding, and
(3) rekindling and sparks from falling roof that contained
quartzite.
The report, however, further concluded that the only
ignition sources peculiar to the mine were the possibility of
rekindling and the quartzite conglomerate found in the main roof
(pg. 14). However, rekindling was discounted as "unlikely," and
no conclusions were made with respect to any cutting and/or
welding or spontaneous combustion, other th~n to discount these
possibilities as not being peculiar to the mine.
With regard to the possibility of quartzite as an ignition
source for the 1984 fire, MSHA's report makes reference to Island
Creek's drill records which established that the roof containing
quartzite was no closer than 50 feet of the coal seam in the
vicinity of the No. 4 longwall panel where the fire was discovered. The report also indicates that following the 1983 fire, an
MSHA geologist examined the mine roof and found no evidence of
any quartzite in the gol::> area:"inby the No. 4 longwall (pg. 12).
Under the circumstances, I can only conclude that MSHA discounted
a roof fall containing quartzite as the source of the ignition.
Coupled with MSHA's conclusions that no further ignitions have
been attributable to sparks from a fall of quartzite roof since
the 1975 fire, which occurred some 15-years prior to the issuance
of the order by Mr. Carico in 1990, I cannot conclude that there
is any credible evidentiary support for any conclusion that such
occurrences are "peculiar" to the mine, or that the mine has a
"history" of such incidents. Any such incidents which may have
occurred prior to 1975, are in my view, too remote in time to
support any reasonable conclusion that they pose a present
ignition hazard or 11 an impending accident or disaster, threatening to kill or to cause serious physical harm, likely to occur at
any moment but not necessarily immediately, 11
With regard to Mr. Caricous belief that a face ignition at
the longwall constituted another possible source of ignition
affecting the gob behind the stoppings which he cited, he conceded that the longwall working faces on December 5, were several
thousand feet from the stoppings where he made his methane
readingsF and he candidly admitted that he was not prepared to
evaluate the potential for an ignition at the longwall face (Tr.
99-100). With regard to the prior face ignitions which he
alluded to, he had no knowledge as to how many may have occurred,
or when they occurred, and he agreed that any explosive mixture
of methane leaking from the roof or face where coal is being cut
would constitute a "controlled, small body of methane" which he
characterized as a "face ignition or pop." I take note of MSHA's
1972 report which reflects that there were three reported frictional ignitions in 1972 caused by a methane-air mixture being
ignited from sparks from the bite of continuous miners striking a
band of shale and bone coal near the mine floor.
These incidents

633

reportedly occurred 18 years ago, and Mr. Carico either did not
remember them, or did not read the reports carefully.
The MSHA reports relied on by Mr. Carico clearly reflect
that following the 1975 fire, no further ignitions have been
attributable to roof falls containing quartzite, and the 1983 and
1984 reports confirm that examinations of the roof area by MSHA's
geologist found no evidence of any quartzite in the gob area
where those fire were located. It would appear to me from these
reports that the presence of quartzite in the mine roof may be a
localized condition, particularly in light of the fact that no
quartzite was found in the gob area where the most recent fire of
1984, was discovered, and Island Creek's unrebutted drill studies
which indicated that the quartzite formation was no closer than
50 feet of the immediate roof. Although MSHA's 1984 report
concluded that the quartzite conglomerate found in the main roof
is a possible ignition source peculiar to the mine, it was
apparently discounted as a potential ignition source on the basis
of the finding that any quartzite present was no closer than
50 feet of the immedia.te roof.'·
Island Creek's expert witness Mitchell, a recognized expert
in mine fires and frictional ignitions, and who has periodically
made studies of the mine since the early 1970's, including
studies of the gob area following the two most recent reported
fires, was of the opinion that it is not now reasonable to
believe that gob falls, in and of themselves, can be a source of
ignition for methane in the gob. Mr. Mitchell based his opinion
on his extensive studies and expertise in frictional ignitions,
including the information in MSHA's reports of the prior fires,
and he concluded that the probability of a roof fall being a
source of ignition "is so small and of relative insignificance"
that ''its not something that an engineer would consider reasonable and proper today. 11
MSHA 1 s expert witness Tisdale, whose expertise lies in mine
ventilation, testified that potential roof falls in a gob area,
with resulting ignitions, are "localized" conditions which vary
from mine-to-mine depending on the rock strata, and he believed
that such conditions nseems to be peculiar to this mine" (Tr.
182-183). Mr. Tisdale was of the opinion that a roof fall which
can create enough sparks and arcs to ignite a flammable mixture
of methane in the air in the south gob posed an ignition risk in
that area. He based this opinion on the four MSHA fire reports,
and also relied on those reports for his opinion that there was a
reasonable likelihood of an ignition of explosive mixtures of
methane in the south gob area on Decem~er 5 and 13, 1990, if
normal mining operations were to continue with no changes in the
conditions which were present on those days.
As noted by MSHA in its posthearing brief, the south gob
area is a rather extensive area covering over a mile square by

634

December 1990. However, in the absence of any evidence with
respect to the existing, or more recent roof conditions in the
south gob area, an area which has been mined out and where the
immediate roof has already fallen, or the roof conditions in the
set-up entries or other mine areas, I have difficulty understanding how one may reasonably conclude that there was a reasonable
likelihood of a roof fall in the gob area which would have
sparked an ignition. As noted earlier, the MSHA reports relied
on by Inspector Carico and Mr. Tisdale in support of their
imminent danger opinions do not, in my view, support any reasonable conclusion that the mine has a "peculiar history 11 of gob
ignitions sparked by roof falls.
MSHA's prior reports all reflect that during the time frames
when those incidents occurred, Island Creek's certified mine
examiners were making the required preshift, onshift, and weekly
examinations for methane and other hazardous conditions and that
the results of these examinations were recorded in the required
mine books. Two of the repo~ts reflect that tests for methane
were being made along the longwall faces by section foremen
before the longwall was energized, and that frequent tests were
made by competent employees, with approved methane detectors,
during the time such equipment was operated. One of the reports
reflects that methane tests were made by qualified persons before
electrical equipment was taken into any working place, and that
such tests were made while the equipment was being operated in
the working place. The reports also reflect that methane monitors were provided on the electrical equipment as required by
MSHA's regulations, and that the longwall plow was equipped with
a methane monitor which was set to give a visual warning at
1 percent methane and deenergize the power at 2 percent methane.
In the absence of any evidence to the contrary, I have no basis
for concluding that in the normal course of continued mining
operations, Island Creek's competent and certified mine examiners
would not have continued to make the kinds of tests ref erred to
in the reports.
Inspector Carico confirmed that he did not check any mine
records for the working shifts immediately prior to December 5,
when he issued the order, to determine whether the bleeder
entries in question had been inspected or whether any methane was
detected and recorded, and he candidly admitted that this was an
omission on his part (Tr. 117). There is no evidence that any
explosive levels of methane were present in the bleeder entries
outby the stoppings tested by Mr. Carico, nor is there any
evidence of any explosive levels of methane in any other working
places in the mine. Mr. Carico agreed that any explosive methane
leaking through the stoppings would have been diluted by the
ventilation which he did not find inadequate for this purpose.
More importantly, although Mr. Carico believed that there were
explosive mixtures of methane behind the stoppings, he conceded
that he did not test the oxygen content of the air leaking

635

through the stopping cracks, that such a test is critical to any
determination as to the presence of an explosive mixture of
methane, and that he could not make such a determination based
solely on his methane readings.
Although Inspector Carico identified several other possible
ignition sources which he believed could have propagated an
ignition in the gob area, 1.§., welding or cutting along the
longwall face, open flames and bolting of materials which could
ignite methane leaking from the floor, and sparks and other
repair work connected with the use of hammers on the metal
ventilation brattices, there is absolutely no evidence that any
of these conditions were present when the order was issued, nor
is there any evidence or testimony that any such work would have
occurred in the normal course of mining operations.
Further,
Mr. Carico conceded that the stoppings where he made his methane
tests were some 2,000 feet from the working faces, and he
admitted that he was not prepared to evaluate the pot8ntial for
an ignition at the longwall face.
Under the circumstances, I
find Mr. Carico's belief that these speculative ignition sources
could somehow propagate a spark or ignition which would somehow
find its way to the methane in the gob areas behind the stoppings
to be less than credible and unsupported by any reasonably
credible or probative evidence.
Based on all of the testimony and evidence adduced in this
case, I believe that one may reasonably conclude that the potential for a methane explosion is dependent on several essential
ingredients; namely, fuel, oxygen, and a ready ignition source.
Although Inspector Carico concluded that his methane readings
reflected an explosive mixture of methane behind the stoppings
which were tested, he did not determine the oxygen and carbon
dioxide content of the atmosphere he tested. Mr. Mitchell 1 s
unrebutted testimony reflects that any oxygen deficiency would
affect the accuracy of the methane detector readings, and
Mr. Tisdale considered the testing procedures followed by the
inspectors to be "a bit crude," but the only then available means
for deducing what was behind the stoppings, other than the
analysis which he conducted.
In its posthearing brief, MSHA concedes that Mr. Carico was
aware of the fact that the existence of explosive methane in the
gob area, standing alone, might not be sufficient to constitute
an imminent danger, and that an ignition source was necessary to
establish the potential for an explosion and the existence of an
imminently dangerous condition or hazard.
Thus, I conclude and
find that the presence of any explosive methane levels in the gob
areas behind the stoppings tested by Mr. Carico, standing alone,
did not present an imminently dangerous condition.
However, in
combination with other conditions or practices, from which one
may reasonably conclude or expect an ignition to occur in the

636

normal course of mining operations, the presence of such explosive levels of methane may present an imminently dangerous
situation.
The parties do not dispute the fact that the mine in question is an extremely gassy mine which freely liberates methane.
Nor is there any serious dispute that the presence of explosive
gas levels in a mine, under certain conditions, is dangerous.
However, any determination as to whether an imminent danger
existed must be made on the basis of the ~ircumstances as they
existed at the time the order is issued, or as they might have
existed had normal mining operations continued.
On the facts of this case, and after careful review of
Mr. carico's testimony, I am convinced that after examining the
stoppings for methane and finding what he believed to be explosive levels of methane in the gob areas behind the stoppings,
Mr. Carico, without any furt}1E:ff efforts to ascertain the actual
prevailing mining conditions, or the conditions which might have
prevailed had normal mining operations continued, simply relied
on the four previous MSHA reports to support his "knowledge and
understanding" of the "mine history" in support of his belief
that there "were possible ignition sources associated with the
goboc;
In view of my previous findings and conclusions concerning
the information found in these reports, I cannot conclude that
Mr. ,Carico's reliance on the MSHA reports in question provides
any credible or probative evidentiary support for any conclusion
that ready ignition sources capable of propagating an explosion
of the methane in the gob area in question were present when he
sued the order or were likely to be present if normal mining
operations were to continue.
I have no reason to believe that
!_vlr, Carico was less than well intentioned when he issued the
orderr and I recognize the fact that any judgment call by an
inspector with respect to the existence of an imminent danger
situation, when balanced against the safety of the miners, must
necessarily be made quickly and without delay.
However, in any
subsequent proceeding challenging the order, any imminently
dangerous situation, which the inspector may have believed
existed at the time he issued the order 1 must be proven. On the
facts and evidence adduced in this case, I cannot conclude that
MSHA has proven or established the existence of any ignition
sources to support the inspector's imminent danger finding.
I
conclude and find that the inspector's speculative anticipation
of a possible mine explosion, in the circumstances presented,
falls short of the statutory requirement of reasonable expectation. Accordingly, the imminent danger order issued by the
inspector IS VACATED.

637

Docket No. VA 91-49-R.
Section 107(a) Imminent Danger Order
No. 3508496, December 13, 1990
Inspector Scammell, like Inspector Carico, believed that all
that was necessary for an explosion was the presence of an
ignition source. Mr. Scammell believed that roof falls and a
methane ignition at the face, which could possibly propagate from
the longwall face, were the only possible sources of ignition
present on December 13, 1990, when he issued his order. However,
he conceded that his principal concern was the possibility of a
roof fall in the gob area.
I find no credible evidence of any
face ignition sources which may have been present at the time
Mr. Scammell issued his order, nor do I find any evidence that
any such ignition sources would have been present if normal
mining operations were to continue. Although one may conclude
that a face ignition could propagate from the face, the inspector
presented no facts or evidence identifying or establishing these
sources of ignition.
With regard to any roof falls as a possible source of
ignition, Mr. Scammell, like Inspector Carico, relied on the same
MSHA reports concerning the prior mine fires to support his
conclusion that a roof fall in the gob area would result in
sparks and be a source of ignition. Mr. Scammell testified that
constant roof falls are occurring where the coal is being mined
at the longwall, but he could not determine the kinds of falls in
the gob area. Although he indicated that "frequent" roof falls
had occurred in the past, aside from his references to the MSHA's
reports, no further testimony or evidence was forthcoming from
Mr. Scammell with respect to any such roof falls, and although he
suggested that they occurred "quite often," he conceded that "I
really don 1 t known (Tro 140).
Mr. Scammell initially testified that he was concerned about
roof falls in the bleeder entries and gob, or a "combination of
falls" on either side of a stopping, "just in that general area"
(Tr. 143). However, he later conceded that he had no knowledge
of what was behind the stoppings, or the roof conditions on the
gob side of the stoppings, and that the roof could have been
caved tight.
He agreed that a caved roof has already fallen, and
that he did not know if it could fall any further.
There is no
evidence of any explosive mixtures of methane in the bleeder
entries, nor is there any evidence of any adverse roof conditions
in the bleeder entries, or anywhere else.
Further, Mr. Scammell
conceded that his concern for roof falls was limited to the areas
behind the stoppings, and not with other roof falls in outby
areas where there was no methane. He confirmed that he took no
methane or ventilation readings in the bleeders, made no measurements of the air ventilating the gob area, and did not know what
was going on in terms of ventilation of the gob (Tr. 148).

638

After careful review of Mr. Scammell's testimony, it seems
obvious to me that instead of making any real determination as to
the existence of any potential ignition sources, he relied on the
previous MSHA reports concerning the prior fires which had
occurred in the mine. Mr. Carico and Mr. Tisdale also relied on
these same reports to support their opinions and conclusions with
respect to the existence of ready sources of ignition and an
imminent danger. My previous findings and conclusions with
respect to these reports are herein incorporated and adopted by
reference.
In my view, cursory reliance on these reports provides no credible evidentiary support for any conclusion that
potential roof falls in the gob area presented a ready source of
ignition at the time Mr. Scammell issued his order, or that they
presented a ready source of ignition if normal mining operations
were to continue.
In short, in the absence of any reliable and
probative evidence, independent of the MSHA reports in question,
I cannot conclude that MSHA has established the existence of any
ignition sources to support Mr. Scammell's imminent danger order.
Under the circumstances, his 'imminent danger finding is rejected,
and the order IS VACATED.
Docket No. VA 91-48-R.
Section 104(a) "S&S" Citation
No. 3354743, December 5, 1990, 30 C.F.R. § 75.316.
In this case, Island Creek is charged with a failure to
follow one of the provisions of its approved ventilation plan.
Any violation of an approved plan provision would constitute a
violation of mandatory safety standard 30 C.F.R. § 75.316, which
provides as follows:
A ventilation system and methane and dust control
plan and revisions thereof suitable to the conditions
and the mining system of the coal mine and approved by
the Secretary shall be adopted by the operator and set
out in printed form on or before June 28, 1970. The
plan shall show the type and location of mechanical
ventilation equipment installed and operated in the
mine, such additional or improved equipment as the
Secretary may require, the quantity and velocity of air
reaching each working face, and such other information
as the Secretary may require.
Such plan shall be
reviewed by the operator and the Secretary at least
every 6 months,
The applicable ventilation plan provision in question is
found in paragraph 10 of Island Creek's August 20, 1987, approved
plan, and it states as follows:
Bleeder entries, bleeder systems, or equivalent means
shall be used in all active pillaring areas to ventilate the mined areas from which the pillars have been
wholly or partially extracted so as to control the

639

methane content in such areas.
Bleeder entries or
bleeder systems established after June 28, 1970, shall
conform with the requirements cf Section 75.316-2,
30 CFR 75.
(a)

Bleeder entries shall be defined as special air
courses developed and maintained as part of the
mine ventilation system and designed to continuously move air-methane mixtures from the gob, away
from active workings, and deliver such mixtures to
the mine return air courses.
Bleeder entries
shall be connected to those areas from which
pillars have been wholly or partially extracted at
strategic locations in such a way to control air
flow through such gob area, to induce drainage of
gob gas from all portions of such gob areas, and
to minimize the hazard from expansion of gob gases
due to atmospheric change.
(Exhibit G-4, pgs,
3-4).

'

.

Inspector Carico issued the citation in conjunction with his
imminent danger order.
In light of his methane readings at the
stoppings in Developments No. 8 through No. 10, and his belief
that there was a great body of methane trapped behind all of the
stoppings in these areas, Mr. Carico concluded that the ventilation was inadequate in that there was an insufficient means of
regulating the air flow between the bleeder entries and the ~ob
areas to induce the drainage of methane from the gob area or to
maintain the methane levels at or below its explosive limits. He
explained that the airtight stoppings or brattices constructed
across all of the connecting entries to the gob between the
bleeders and the gob prevented the adequate drainage of methane
from those areas as evidenced by the lack of dilution of the
accumulated methane (Tr. 41-45). Under all of these circumstances, Mr. Carico concluded that there was a violation of plan
provision lO(a), which required regulated and controlled air
flows adequate to induce drainage and removal of gob gas from all
portions of the gob areas.
Arguments Presented by the Parties
In its posthearing brief in support of the citation, MSHA
asserts that Inspector Carico issued the citation because the
ventilation system on December 5, 1990, did not satisfy the
vent ation plan provision requiring that "bleeders entries • .
be connected to those areas from which pillars have been wholly
or partially extracted at strategic locations in such a way as
. . . to induce drainage of gob gas from all portions of such gob
areas . . • . " Recognizing the fact that there was conflicting
testimony as to whether· or not the removal of the stoppings would
have induced drainage of gob gas from all portions of the south
gob, MSHA nonetheless points out that the citation was issued

640

because of Island Creek's failure to induce drainage from the
set-up entries and adjacent gob in the Nos. 8 through 10 developments. MSHA takes the position that the existence of a substantial body of explosive concentrations of methane behind the cited
stoppings in question is sufficient to establish that Island
Creek was not complying with the ventilation plan provision in
question because such a finding demonstrates that drainage of the
gob had not been induced from that area.
MSHA argues that because the ventilation plan permits the
bleeder entries to be placed at ''strategic locations" to induce
the drainage of gob gas, flexibility was provided to Island Creek
to determine the placement of the bleeder entries. However,
since the placement of the bleeder entries failed to provide an
adequate means of inducing the drainage of gob gas from all
portions of the south gob, MSHA concludes that Island Creek was
in violation of its ventilation plan because it was no longer
being met.
MSHA further argues that the violation was significant and
substantial (S&S) , because an explosion of the body of methane
behind the stoppings was reasonably likely to occur and result in
an injury. MSHA relies on Mr. Carico's testimony that injuries
from the explosion of the accumulation of explosive methane would
result in a serious injury or health hazard.
In its posthearing brief, the UMWA asserts that Island
Creek's failure to properly place the connections required by the
ventilation plan provision in question led to the accumulation of
a large body of methane behind the stoppings in the development
areas cited by the inspector.
In support of this conclusion, the
UMWA states that Inspector Carico did not believe that enough
connections were located between the bleeders entries and the gob
to insure adequate drainage of all gob areas, and that the
tightly sealed stoppings across the entries inhibited or almost
completely stopped the air flow at those locations. The UMWA
concludes that these tightly sealed stoppings were inconsistent
with the ventilation plan which indicated the presence of regulators and not merely stoppings at these locations.
The UMWA further argues that in view of the dynamic nature
of mining, it would be impractical for a ventilation plan to
spell out where the connectors between the bleeders and gob
should be placed, and as explained by Mr. Tisdale, the requirement that connections be placed at strategic locations means that
they are to be located where they are needed in order to make the
whole bleeder ventilation system effective. The UMWA concludes
that Island Creek is responsible for placing the connectors at
locations that will insure methane drainage from all areas of the
gob, and that these locations may have to vary as ~ining
progresses.

641

The UMWA asserts that by turning its regulators into stoppings, Island creek limited its ability to make adjustments in
the air flow over the set-up entries in the cited development
areas.
In response to Island Creek's position that the removal
the stoppings would result in the short circuiting of the
ventilation in the south gob, the UMWA points out that no one has
suggested that all of the stoppings must be completely removed,
but that a proper balance, through the use of regulators, would
have to be found.
The UMWA relies on Mr. Tisdale's opinion that
the manner in which the gob was being ventilated did not allow
much air flow to go through the set-up entries, and that this was
a violation of the ventilation plan. The UMWA concludes that
based on the massive accumulations of explosive levels of methane
found by Mr. Carico on December 5, a significant portion of the
gob was not receiving adequate air as required under the ventilation plan, and that Island Creek's contention that removal of the
stoppings will create a serous ventilation problem elsewhere is
not an adequate defense.
In its posthearing arguments, Island Creek points out that
there is nb federal standard prohibiting the existence of explosive concentrations of methane except in active working areas and
in return air courses, and that there is no standard prohibiting
gob gas.
Island Creek asserts that methane is to be expected in
gob areas, and it concedes that it was likely present in some
quantity behind the stoppings where Inspector Carico took his
readings, but it denies the existence of any unusual quantities
of methane behind the stoppings.
Island Creek maintains that a gob area always contains
quantities of methane pushed there by air from the face area
for that purpose and generated from the coal and strata
the gob itself, and that the methane in the south gob was
pushed through the gob area and into the bl
. Island Creek
believes that it is not surprising that a test taken in the gob
at a location where methane was moving toward its exhaust-point
destination would reveal methane in some concentrations, and that
given Inspector Carico's experience, he surely knew that methane
would be present behind the stoppings on its way out of the gob.
Island Creek does not contend that methane
not dangerous.
However, it points out that as a natural by-product of the mining
, methane cannot be avoided, but it can be controlled by
ion and movement, and it concludes that the evidence estabthat this was happening in the south gob area on the day
the citation was issued.
Island Creek asserts that for the
methane to be moved, it must pass the Nos. 8 through 10 connector
entry stoppihgs, and probably did pass those stoppings on the gob
side in a variety of concentrations. Since the percentages
measured were under 100 percent, Island Creek concludes that air
had been mixed with the transient methane, and that the gob was
being ventilated.

642

Island Creek argues that the basis for Inspector Carico's
belief that it was not complying with its ventilation plan was
that because concentrations of methane were measured at certain
pinholes (but not all of the pinholes) at some (but not all) of
the stoppings in the bleeder connector entries in the Nos. 8
through 10 development areas, the south gob was not being ventilated.
Island Creek asserts that it is unrebutted that there was
a strong pressure drop between the gob and the bleeder entries
because gob air pressure was pushing air through the stoppings
into the bleeders, and that the gas coming up through the several
boreholes in the south gob. could only be made to move to the
bottom of the boreholes because of ventilation.
Island Creek
also points out that there was no evidenGe that any gas was
backing up into the face areas in the No. 12 and 13 development
panels, and that MSHA's inspectors found the ventilation in those
face areas to be in compliance.
It also points out that although
a ventilation survey is necessary to determine gob ventilation,
Inspector Carico made no survey, but that a survey by Island
Creek established that a satisfactory quantity of air was moving
through the south gob and its adjacent bleeder entries, and that
the gob atmosphere, including methane, was leaving the south gob
where intended.
Island Creek recognizes the fact that its ventilation plan
requires that the bleeders be connected to the gob at "strategic
locations," but it points out that while this term is undefined
in the ventilation plan, its ventilation engineers explained that
the bleeders were in fact connected to the gob at three locations, each of which is considered "strategic." Island Creek
concludes that until Inspector Carico decided otherwise on
December 5, it could be inferred that MSHA agreed that its
connections were proper since the ventilation plan had been
reviewed every 6 months since it was originally approved by MSHA
in August, 1987; and no one from MSHA made an issue about the
plan language, or alleged that the mine was not complying with it
in its south gob and bleeder configuration.
Island Creek argues that MSHA's witnesses presented no
evidence that it was not controlling the air flow through the
south gob, but that Island Creek 1 s evidence establishes that the
south bleeders were bleeder entries which were connected to the
gob at strategic locations in such a way to control air flow
through the gob area, and that its witnesses confirmed that this
was the case.
Island creek argues further that MSHA presented no
evidence to indicate that gas was not being drained from the
south gob on December 5, but that Island Creek's ventilation
survey showed that air was moving in the proper direction through
the gob on that day.
Island Creek also argues that MSHA presented no evidence that the mine was not minimizing the hazard
from expansion of gob gasses due to atmospheric change.

643

Island Creek concludes that the citation should be vacated
because there was no evidence that the cited provision of the
ventilation plan was not being complied with, and it suggests
that MSHA's only evidence in this case, testing to determine a
methane concentration at a location where methane is in the
process of being pushed out of the gob, is good evidence that gob
gas was moving as intended toward the "strategic location" where
the gob was connected to the bleeders for purposes of exhausting
methane.
Fact of Violation
The first sentence of the applicable ventilation plan
provision lO(a) defines bleeder entries as "special air courses
developed and maintained as part of the mine ventilation system
and designed to continuously move air-methane mixtures from the
gob, away from active workings, and deliver such mixtures to the
mine return air courses." After careful review of all of the
evidence and testimony adduced in this case, I find no credible
or probative evidence-to establish any violation of this first
sentence of the plan by Island Creek.
Inspector Carico conceded that he only cited the second
sentence of plan provision lO(a), and that the second sentence
nwas the most applicable part of that section" (Tr. 93). He
agreed that the first part of the second sentence which required
"the bleeder entries shall be connected to those areas from which
pillars have been wholly or partially extracted" was complied ·
with by Island Creek and that he was satisfied with this compliance (Tr. 93). With respect to that part of the second sentence
requiring the bleeder connections to be made at "strategic
locations, ii Mr Carico confirmed that the bleeders were connected
at sufficient intervals to control the gob gas as it comes out
(Tro 94)" Mro Tisdale confirmed that the question of whether or
not connectors are located at "strategic locations'' is basically
a matter of opinion and that the MSHA approved ventilation plan
does not further define the term "strategic locations."
o

Inspector Carico conceded that as of the evening of
December 5, 1990, when he visited the mine, the mine was in
compliance with the ventilation plan requirements for ventilating
the gob and bleeder areas. However, he indicated that since
mining is dynamic, changes are taking place all of the time which
may require re-regulation of the air, and if this is not done,
the failure to re-regulate the air at any given point in time may
result in a violation of the plan. He confirmed that the changes
which occurred, and which resulted in a violation of the plan,
were those specified in the citation (Tr. 67). He explained that
the basis for the citation rested on his conclusion that the mine
bleeder system was not working properly, or was not properly
constructed, and that this conclusion was based on the methane

644

which he detected coming through the cracks or pinholes in the
stoppings (Tr. 94).
Mr. Mitchell testified that methane detected coming through
a pinhole in a stopping is not a reasonably accurate indication
of what is on the other side of the stopping and that it would
not be any indication that the gob was not being ventilated.
Inspector Carico, who conceded that he did not measure the oxygen
level coming through the pinholes where he made his tests, also
conceded that without such measurements, one cannot determine if
there is an explosive mixture of methane behind the stopping
based solely on his methane readings.
Both Mr. Mitchell and
Mr, Tisdale agreed that there are other appropriate methods for
making such determinations, namely a ventilation pressure survey
and analysis.
Island Creek 1 s ventilation manager Ray and MSHA's witness
Tisdale both relied on a December 12, 1990, ventilation survey
conducted by Mro Ray .9.nd a team of engineers to support their
respective opinions as to the adequacy of the gob ventilation and
whether or not it was in compliance with the ventilation plan.
Mr. Ray believed that the gob area was being adequately ventilated, and in view of the pressure differentials with respect to
the air flow coming out of the bottom of the No. 1 development,
he concluded that adequate air was flowing through the gob and
that there is enough air to push all of the methane through the
gob with the current ventilation system. Mr. Tisdale believed
that the ventilation of the gob area ranged from "borderline to
inadequate. 11 and that the amount of air available for ventilating
the gob area 11 is stretching it. 11
Island Creekus expert Mitchell, who conducted studies of the
ventilation
the south gob, including an analysis of pressure
differentials and air flows, concluded that the ventilation of
the gob was in compliance with the ventilation plan provision in
question. Mr. Mitchell testified credibly that it is not unusual
to find methane in the gob area and that it will gravitate to the
highest elevation in the mine, such as the No. 8 through 9
developments.
Inspector Carico conceded that explosive concentrations of methane in the gob area in some locations is to be
expected and that it
impossible to remove it all from the
He confirmed that other than the dome and fall area of the
gob, the No. 8 through 9 developments where he tested the stoppings and issued his citation, were the highest elevations in the
mine and that the methane will go to that area even though it is
enroute out of the mine (Tr. 97).
Mr. Mitchell and Mr. Ray both confirmed that since air flows
from a high pressure area to a low pressure area, any air movement within the gob area will be away from the face areas and
towards the south bleeders and No. 1 development area.
Mr. Tisdale agreed that there was a pressure differential between

645

the gob and the bleeders and that the air flowing through and
coming out of these areas "had to have some push" (Tr. 173-174).
Inspector Carico confirmed that when he tested the stoppings
there was in fact a pressure differential between the back side
of the stoppings and the gob side and that this would indicate
that the pressure on the bleeder side of the stopping was less
than the pressure on the gob side, and that air would flow from
an area of high pressure to one of lower pressure.
In describing
the method used by Island Creek to ventilate the gob, Mr. Carico
confirmed that the stoppings were installed in order to force the
air to flow to another location where it would leave the gob, and
he agreed that as the air is flowing away from the stopping it
would be picking up methane (Tr. 82-83). He also agreed that if
the mine fan were working, and there is no evidence that it was
not, the ventilation system would also be working (Tr. 123-125).
There is no evidence in this case that any explosive concentrations of methane were coursing into the bleeder entries or
into any working area5- of the'·mine where miners were expected to
work or travel.
The methane which concerned the inspector was
behind the stoppings, and he was concerned that it was not being
moved out of the gob area by the available ventilation.
I take
note of the fact that the ventilation plan does not prohibit the
existence of methane gas in the gob areas, and the parties agree
that there are no standards prohibiting methane in gob areas.
Insofar as the alleged violation is concerned, the issue presented is whether or not MSHA has established by a preponderance
of the credible evidence that the ventilation provided for the
gob area was inadequate to induce the drainage of methane from
the gob area.
After careful review of all of the evidence and testimony
adduced in this case, including the posthearing arguments presented by the parties, I believe that Island Creek has the better
part of the argument, and that its evidence, which I find credible, and supported in part by Inspector Carico, establishes that
the gob area in question was being ventilated on December 5,
1990,
I further conclude and find that the gob ventilation and
air flow through the cited development areas allowed for the
mixing of the methane with the air coursing through those areas
and that the methane which was mixing, or being diluted by the
a
, was coursing through the gob areas behind the stoppings in
question trying to find its way into the mine bleeder system and
out of the mine. Under the circumstances, I find that MSHA has
failed to establish a violation of the cited ventilation plan
provision, and the citation issued by Inspector Carico is
VACATED.
ORDER
On the basis of the foregoing findings and conclusions, IT
IS ORDERED AS FOLLOWS:

646

1. Docket No. VA 91-47-R. Section 107(a) Imminent Danger Order No. 3354742, December 5, 1990, IS
VACATED, and Island Creek's contest IS GRANTED.
2.
Docket No. VA 91-48-R. Section 104(a) "S&S"
Citation No. 3354743, December 5, 1990, citing an
alleged violation of 30 C.F.R. § 75.316, IS VACATED,
and Island Creek's contest IS GRANTED.
3. Docket No. VA 91-49-R. Section 107(a) Imminent Danger Order No. 3509496, December 13, 1990, IS
VACATED, and Island Creek's contest IS GRANTED.

&A4~

Administrative Law Judge

Distribution:
Timothy C. Biddle, Robert Davis, Esqs., Crowell & Moring,
1001 Pennsylvania Avenue, N.W., Washington, DC 20004-2505
(Certi
Mail)
Charles Jackson, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Scott Mullins, Esq., P.O. Box 2138, Coeburn, VA 24230
(Certified Mail)
Lu Jordan Esq. United Mine Workers of America, (UMWA) ,
900 15th Street, N.W., Washington, DC 20005 (Certified Mail)

1'-lary

?

/fb

647

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

APR 4 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
J

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 90-363
A.C. No. 15-16646-03504
Docket No. KENT 91-31
A.C. No. 15-16646-03506

& R COAL COMPANY, INC.,
Respondent

Mine No. 2
DECISION APPROVING SETTLEMENT

Appearances:

Joseph B. Luckett, Esq., U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee, for
the Petitioner;
Mr. Roger Bentley, President, J & R Coal Company,
Inc., Kite, Kentucky, for the Respondent.

Before:

Judge Maurer

These cases are before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act) o At the hearing, after all the
testimony was in the record, the parties jointly moved to settle
these caseso A reduction in penalty from $2558 to $2265 was
proposed. I have considered the representations and
documentation submitted in these cases, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in Section llO(i) of the Act.
·
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that Respondent pay a penalty of $2265 within
30 days of this order.
Upon payment in full, these cases are
dismissed,

Law Judge

648

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

APR 9 \991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
RICHARD G. ROETHLE,
Complainant

v.

.
..

.
.

DISCRIMINATION PROCEEDING
Docket No. CENT 90-124-DM
SC-MD 90-04
Tyrone Mine & Mill

PHELPS DODGE CORPORATION,
Respondent
DECISION
Appearances:

Michael H. Olvera, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
for Complainant;
Charles L. Chester, Esq.If RYLEY, CARLOCK & APPLEWHITE, Phoenix, Arizona,
for Respondent.

Before:

Judge Cetti
STATEMENT OF THE CASE

The Secretary of Laborv Mine Safety and Health Administration CMSHA) ( ncomplainant 11 ) commenced this proceeding on behalf
Richard Go Roethle and against Phelps Dodge Corporation ( 11 Respondent11) on June 2lv 1990, by filing a complaint alleging that
Respondent discriminated against Mr. Roethle in violation of
Section 105(c) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 (the Act) by unjustly suspending him on November
24u 1989u for refusing to work in unsafe conditions on the "B"
shift at Respondentus Tyrone, New Mexico, open pit copper mine on
November 19u 1989. Respondent denied the allegations.
Complainant issued no citations or orders with respect to
this case alleging Respondent violated any provision of the Mine
Saftey and Health Act or any mandatory health or safety standard,
rule, order, or regulation promulgated pursuant to MSHA. This
proceeding was commenced on the investigation of the February 6,
1990, complaint of Mr. Roethle, which stated:
I was operating Haul Truck No. 204 on November 19,
1989. The steering tires were out of round, causing the vehicle to bounce heavily. This caused the
steering wheel to jam, affecting the safe steering.
I narrowly missed another truck, and I parked No. 204.

649

My foreman told me I had no right to stop the truck.
He and another foreman stood on the ground, looked
at the truck, and said it was okay. They refused to
ride with me or check the truck, and sent me home.
I believe that I was discriminated against and ask
to be paid for time lost and to have my record cleared.
Respondent contends Cl) that Truck No. 204 (the 204 truck)
was safe to operate, at least at slower speeds, (2) that
Mr. Roethle knew this, (3) that Mr. Roethle was required to
operate the 204 truck at slower speeds if he was concerned
about his or others' safety, (4) that he refused to operate
the 204 truck though it was his duty to do so, and (5) he was
therefore suspended for 10 days.
Complainant seeks back wages for Richard Roethle in the
amount of $1,056.20 plus interest, contending that his 10-day
suspension was due to_activi~y which was protected under the Act.
In addition, the Secretary seeks an order directing the respondent to expunge the employment records of Mr. Roethle of all reference to the circumstances involved in this action. The Secretary also seeks a civil money penalty for the alleged violation
of Section 105Cc) of the Act.
Finally, Complainant seeks an additional but unspecified
remedy as the Commission sees appropriate for Respondent's alleged ongoing violation of Section 105(c).
ISSUES
Complainant states the issues as followsg

lo Whether Respondent unlawfully discriminated against
Richard Roethle by suspending him for ten days.
26

What relief u if anyu the Commission should rendero

3o Whether Richard Roethle failed to file a timely
complain to

FINDINGS OF FACT AND CONCLUSIONS
1. Respondent, Phelps Dodge, at all relevant times, operates a large open pit copper mine in Tyrone, New Mexico, and its
operations substantially affect interstate commerce.

650

2. Richard G. Roethle, at all relevant times, was and is
employed as a haul truck driver by Respondent at its Tyrone Mine.
At all relevant times, Mr. Roethle was an experienced truck
driver.
3. On November 19, 1989, on the "B" shift at the Tyrone
Mine, Mr. Roethle's usual truck was not operating and the dispatcher, Johnny Poe, assigned Mr. Roethle to'the 204 muck truck.
The 204 truck is an older, large 170-ton unit rig haul truck used
to carry mine ore.
It has large tires that are 10.5 feet in diameter. The driver of the 204 truck must sit in the driver seat
in the cab approximately 14 feet above the ground.
4. At the beginning of this shift, Mr. Roethle, on being
assigned the 204 truck, inspected it and found a high front suspension, a 2"-3" gap in the square roller housing, oil all over
the left side of the motor, a leak in the left steering ram cylinder, and "raggedy" back tires.
5. Mr. Roethle'-s job on the November 19, 1989, "B" shift
required him to load the 204 haul truck at the No. 12 Shovel near
the bottom of the mine, drive from the No. 12 Shovel up a "ramp"
to the Crusher slot, through the slot, and across a flat to the
Crusher, then return to the No. 12 Shovel for another load. When
Mr. Roethle reached a speed of approximately 16 to 18 miles per
hour, the truck became so unbearably "bouncy," that he believed
he couldn't completely control the truck. The bouncing of the
truck made it difficult to hold himself in his seat and resulted
in trouble controlling the steering wheel and pedals.
6. Mro Roethle stopped the truck and dumped the load he was
hauling at the crushero He then notified the dispatcher in the
tower that something was wrong with the 204 trucko He asked the
dispatcher to send a mechanic to determine what was wrong with
t.he truck.
7. The dispatcher instructed Mr. Roethle to "make another
load uu while waiting for a mechanic to check on the truck.
!vir. Roethle complied with the dispatcher's reguesto
As
Mr. Roethle was making a turn going down hill to a lower level,
the steering wheel of the truck "jerked" in his hands. When he
got to the shovel, Mro Roethle radioed the dispatch tower and
asked that his foreman, Victor Giacolettip also meet him near
the crusher to check out the truck.
It felt to Mr. Roethle like
the front tires were coming off the ground.
He had never felt
anything like this bouncing before.
8. Near the crusher slot, Mr4 Roethle's foreman Victor
Giacoletti, Tom Wilson, the acting mechanic foreman, and two tire

651

shop employees met .Mr. Roethle and visually observed the truck.
Mr. Roethle informed Mr. Giacoletti of his safety concerns, including the bouncing of the truck. All four observed the truck
bouncing. Mr. Giacoletti said it had been bouncing for a couple
of months.
9. At Mr. Giacoletti's request, Mr. Wilson visually checked
the truck's suspension and stated he found nothing wrong except
the "suspensions could possibly be a little high. One of the
front suspensions was "slightly higher than the other one."
10. At Mr. Giacoletti's request, Mr. Roethle drove the 204
truck across the flat back toward the Crusher slot, so that the
four could again observe the bouncing. The four followed,
Mr. Roethle in another vehicle. At about 16 mph, the empty 204
truck began bouncing again, but not as bad when it was loaded.
At the end of the crusher slot, Mr. Roethle got off the truck and
requested that one of the four observers get in the truck and
ride with him, but no one did. Mr. Giacoletti stated that the
problem. did not look bad, and,.that the truck should be ,run until
Tom Wilson could "free someone up."
11. As Mr. Roethle continued driving the truck, it started
bouncing again. The shocks were "bottoming out, 11 banging in a
manner· he had never heard ·before. At one point, the steering
wheel seemed to jump, jerk and momentarily lock out. .The truck
was hard to control. He just missed hitting another truck.
12. Mr. Roethle called the dispatch tower and told the dispatcher he was parking the 204 truck because it was unsafe. He
asked for a "ready line assignment." The dispatcher complied
th the request and Mr. Roethle parked the truck.

130 When Mr. Roethle parked the truck at the ready line,
Mro Giacoletti asked Mr. Roethle if he was refusing to drive the
204 truck.
Mr Roethle responded in the affirmative. Mr •. Giacoletti then told Mr. Roethle he did not have the right to refuse
to drive the 204 truck. At the time Mr. Giacoletti appeared to
Mr" Roethle to be agitated. Mr. Roethle told Mr. Giacoletti
that he felt the truck was unsafe. As Mr. Giacoletti escorted
lVir
Roethle to the off ice, Mr. Roethle asked Mr. Giacoletti to
note his statement that the 204 truck was unsafe. Mr. Roethle
;,~·as sent homeu pending an investigation.
&

o

14. The foreman, Mr. Giacoletti, assigned the 204 truck to·
Mr. Ray Tafoya. He told Mr. Tafoya that the 204 truck "bounced a
little, but it was drivable." Mr. Ray Tafoya drove the 204 truck
and experienced the bouncing. He drove slowly "due to the
bouncing" for the balance of the "B" shift on November 19,· 1989.

652

15. Ray Tafoya drove the truck loaded from the ninth shovel
to the 409 dump, going about four to six miles per hour. The
ride was "real rough, the steering wheel had lot of play to it."
He dumped his load and started back. When he got up to 16 miles
per hour, the truck "started shaking and bouncing real bad all
over the road. 11 He had never experienced any bouncing like his
before. He felt it was unsafe, dangerous, and testified "if I
lose contol of it, I'm gone." When he slowed down to between 12
and 14 miles per hour, the bounce was not as bad and he could
control the truck "a little bit."
16. Mr. Tafoya did not "park" the 204 truck because there
was no available truck at the ready line and because he was new
on the job, a "greenhorn."
17. Before the November 19, 1989, incident, mechanics and
truck drivers, including the Complainant, had on occasion B.O.'d
trucks and had never been disciplined for doing so.
18. The front su-spension of the 204 truck was overcharged at
the time it was driven by Mr. Roethle on November 19, 1989. The
10.5 foot diameter steering (front) tires were out of round, 1/2"
and 3/8", respectively. This "out of round" condition of the
front tires caused the truck to lope and bounce. Prior to
Mr. Roethle's suspension on November 19, 1989, no one was aware
the front tires were out of round.
19. The out of round front tires on the 204 truck were discovered sometime after the incident of November 19, 1989 which
resulted in Mr. Roethle's suspension. The out of round steering
tires were then taken off the truck and replaced with new tires
that were not out of round. Thereafter the 204 truck did not
bounceo
20. If on November 19th when at Mr. Roethle 0 s request the
truck was checked (visually) by his foreman, the acting mechanic
foreman and the two tire men, it would have been found that the
bouncing of the truck was caused by out of round front tires, the
truck would have been BOed by management and the truck would have
been sent immediately to the tire shop where the out of round
tires would have been replaced.
(Tr. Vol II p. 228).
21. On November 19, 1989v Richard G. Roethle refused to
drive the 204 muck truck because he held a reasonable good faith
belief that further driving of the truck was hazardous and
unsafe.
22. On November 19, 1989, Richard G. Roethle was suspended,
pending investigation for refusing to drive the 204 muck truck.

653

23. Mr. Roethle was suspended for a total of 10 days, beginning November 19, 1989.
24. The amount of back wages which accrued during the 10-day
suspension is $1,056.20 (not including interest).
25. Richard G. Roethle filed a complaint with the Mine
Safety and Health Administration in February of 1990.
26. Richard G. Roethle first became aware of his discrimination rights under MSHA in February of 1990.
27. Respondent was not prejudiced by Mr. Roethle's filing of
the discrimination complaint more than 60 days after the
incident, which resulted in his suspension.
DISCUSSION WITH FURTHER FINDINGS
I

Section 105Cc) of the Act 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 op~ra
tor 1 s attention hazardous conditions in the workplace or who refuses to perform work under unsafe conditions. It is well-settled that 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
activityo Secretary on behalf of Pasula Vo Consolidation Coal
Companyu 2 FMSHRC 2768 (1980) rev 1 d on other grounds sub nom.
Consolidation Coal Company Vo Marshall, 663 F.2d 1211 {3d Cir"
1981)
Secretary on behalf of Robinette v. United castle Coal
Companyv 3 FMSHRC 803 {198l>e Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon Vo Phelps Dodge Corp.~ 3 FMSHRC 2508, 2510-2511
{November 198l)Q rev'd on other grounds sub nom. Donovan Vo
?helps Dodge Corp.u 709 F.2d 86 (D.Co Ciro 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 activities 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.

654

See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Dono-

van V:-Stafford Construction Company, No. 83-1566 D.C. Cir. ~~

(April 20, 1984) (specifically-approving the Commission's Pasaula-Robinette test). See also 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. l;
Applying these principles to this case, I find that Respondent violated § 105Cc) of the Act by discriminatory adverse action, i.e., suspending Mr. Roethle without pay for 10 days, commencing November 19, 1989 for refusing to drive the 204 truck for
the balance of the shift.
It is undisputed that Mr. Roethle was suspended for 10 days
for his refusal to continue driving the 204 muck truck on the "B"
shift on November 19, 1989. He communicated his safety concerns
regarding the 204 truck to management.
If Mr. Roethle's refusal
to drive the 204 truck at th<?:.t time was protected activity his

!/

, Section 105{c)(l) provides:
No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners or applicant for employment in
any coal or other mine subject to this Act because
such minerv 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 mineru 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 or miners or applicant 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.

655

suspension for this refusal was in violation of Section 105(c)Cl)
of the Act.
In this case, the question of whether Mr. Roethle's
refusal was protected activity turns on whether he had a reasonable good faith belief that the continued driving of the 204
truck was hazardous.
In determining whether a miner's belief is
reasonable, the courts and the Commission consistently has held
that the perception of a hazard must be reviewed from the miner's
perspective at the time of the work refusal.
The miner need not
objectively prove that an actual hazard existed. Gilbert v. Federal Mine Safety and Health Review Commission, 866 F.2d 1433,
1439 (D.C. Cir. 1989).
In Robinette, 3 FMSHRC at 810, the Commission explained that
[g]ood faith belief simply means honest belief that a hazard
exists." The burden of proving good faith rests with the complaining miner but he need not demonstrate an absence of bad
faith.
Bush v. Union Carbide Corporation, 5 FMSHRC 993 at 997.
11

In evaluating the eviden<;:.e in this case I credited the testimony of Mr. Roethler even though there are some inconsistencies
in his testimony and the testimony of some of the other drivers
and mechanics who corroborated his testimony. These inconsistenc s were not of such a nature or magnitude as to defeat his
claim. As stated by Tenth circuit officials, the Court in Ligget
Industries, Inc. v. Stenson Begag filed January 9, 1991, "The totality of the evidence is what counts."
In this case Mr. Roethle was concerned with what he perceived to be his inability to safely control the truck.
He demonstrated good faith by requesting not only a mechanic but also
his foreman to meet him at the job site and check out the truck.
After management made only a visual check of the truck, and could
not or at least did not find out what was causing the problemv
Mr. Roethle asked that one of them ride with him in the 204 truck
so they could see first hand the problems he was experiencing in
controlling the truck. No one complied with that request. No
one even suggested that it would be alright for Mr. Roethle to
drive the truck at a speed lower than that normally expected or
required for this type of trucko
Management did not address his
safety concerns in a manner sufficient or adequate to reasonably
quell his fears.
Two of Respondent 1 s truck drivers Mr. Gomez and Mr. Tafoya
and two of Respondent's mechanics including Mr. Dennis Stailey 1
testified on Mr. Roethle's behalfo This testimony corroborates
at least in some degree Mr. Roethle's testimonyo

656

Respondent would have the Court disbelieve Mr. Roethle and
the truck drivers, and mechanics who testified in his behalf
with one exception, Mr. Dennis Stailey, the truck shop mechanic
who worked on and drove the 204 truck on the November 20th "C"
shift. Respondent in his post hearing brief states that
Mr. Stailey's candor and testimonial clarity was refreshing.
In
pertinent part, Mr. Stailey testified as follows.
(Tr. starting
at page 71 of Vol I).
Q.

When did you work on that truck after Mr. Roethle had been
sent home?

A.

As far as I can remember, it would have been the
on the 20th.

Q.

Okay.

A.

My foreman lined me up on that truck that night at the
beginning of the shift a.nd said we needed to go by the book
on charging the-front suspension because we had a problem
with it.

Q.

Okay.

A.

The right suspension had already had the nitrogen charge let
off; it was completely collapsed. And we bled the nitrogen
off of the left cylinder, drained all the oil out, replaced
the oil to the specified inches in height, and then recharged the nitrogen.
Okay.
L

11

C 11 shift

And tell me how you came about to work on this truck.

And what did you do?

You mentioned that the right suspension had been bled
I meanu who had bled the right suspension off?

Ao

- don: t

k.now.

It was on °'B 01 shift before I

came on"

Q.

Okay. So, they were already working on it on "B 11 shift by
the time you got there?

.Ao

They had started working on it and they put it back out on
B.O. line. And we had to bring it back in and start on it.

* * * * *
Qo

Okay" Okay. After you got the suspension filled, what did
you do at that point?

A.

Then Mel took the truck and got a load and drove it. And he
brought it back and said it still wasn't right1 there was
still something wrong.

657

Q.

Mel Marcus told you that?

A.

Mel Marcus.

Q.

Okay.

A.

And so we checked everything, physically, and couldn't find
anything wrong.
And I took it up on the four leach dump and
it seemed to work pretty good going up.
But coming back
down, when I hit the dynamics, it started really bouncing
bad.

*

*

*

*

*

Q.

And on the way back about how fast were you going?

A.

I took it up to 18 miles an hour, which is the required
speed going downhill is 18.
And as soon as I hit the
dynamics then that when-7_

Q.

What is hitting the dynamics?

What does that mean?

A.
You have electrical braking, dynamic braking, which
reverses the field in pull motors.

Q.

Okay.

A.

It was like being on a roller coaster.
my stomach, i t was bouncing so bad.

Q.

The whole cab was bouncing?

A.

The whole truck was bouncingo

Qo

Was it similar to any other kind of ride you had been on in
terms of driving these trucks around?

Ao

About the only time that I have felt one bounce like this is
when I ran over a rocko
But it would just
one bounce1 it
wouldnit be continuous up and downo

Qo

How were you able to control the vehicle through the bounce.

Ao

I was controlling it, yes, but it--I was a little worried
about what was going to happen because I had never felt that
before.

Q.

All right.
When it started bouncing what did you do in
terms of the dynamics and the speed of the truck?

What started happening?

658

I

could feel it in

A.

I backed off a little bit and it eased up a little bit until
I could get it slowed down to about 12 miles an hour.
That's when it stopped.

Q.

Okay. You say that you were able to control the vehicle.
Was it any harder to control through the bounce than just
normal driving?

A.

Well, yes, because you are going up and down and your foot
is moving. And, yes, it was harder to control. Yes.

Q.

Okay. And when Mel Marcus came back and told you that the
truck was--still wasn't right, did he say anything else or
did he say something is still wrong with the suspension?

A.

As far as I can remember, he just said, we haven't fixed the
problem yet.

Q.

Did he tell you what

A.

The bounce.

Q.

Okay. When you were assigned the truck he told you
something about a bounce?

A.

No. When he assigned me--no, he just told me we need to go
through the suspensions, there is something wrong.

Q.

Okay. When you said "the bounce" that's sort of in hindsight that you realized what the problem was?

Ao

Yeso

Qo

Okayo Nowv what was the suspension--when you were bouncing, did you notice anything in particular about the
suspension?

th~

problem was, I mean?

I didn 1 t know what the problem was to begin witho

Noa
I was too worried about what it was doing, where it was
going to go to really"
I knew the--everything was inspected
on the suspension so I was trying to figure out what else
might be causing it.
And it was the end of shift by then; I had worked on it
eight hours.
I still hadn 1 t found what the problem waso

* * * * *
Q.

Now, would you consider this bouncing motion that you encountered, would that, in your opinion, be an unsafe
situation?

659

•s

A.

It was, as far
I was concerned.
I wouldn't release the
truck, and I didn't release the truck.

Q.

Okay.

A.

I told the foreman it is still B.O.; you are going to have
to do some more trouble shooting to find out what the problem is.

So, at the end of your shift what did you do?

*

*

* *

*

Q.

Okay. Do you remember anything unusual about this truck
other than the fact that that night it was bouncing?

A.

I can remember that it was one of the trucks that I think
backed over a berm and rolled. That's about the only thing
I really remember.

Q.

Backed over a berm and rqJled?

A.

Yes.

Q.

About how long ago was that?

A.

It seems like it was about three years ago.

Q.

About three years ago.

A.

The truck went through the berm.

Q.

Driver error or mechanical failure or what?

Ao

I don°t knowo

I'm not sure.

Do you recall what happened?

Mr. Stailey's credible testimony (correctly described
by Respondent as candid and having a refreshing clarity) clearly
shows that Mr. Stailey considered the 204 truck to be in an unsafe driving condition. Mr. Stailey's testimony in this respect
corroborates the testimony of the complainant and that of every
other driver who drove the truck at or near the time of the
November 19 incident.
Respondentvs argument that the truck would have been safe to
operate at a slow speed and that therefore, complainant should
have continued driving the 204 truck at a slow speed is not persuasive since neither his foreman or anyone else suggested to
complainant prior to the hearing that he could or should drive
slower than the normal expected production speed. In the absence

660

of evidence to the contrary, and particularly in view of the testimony of the drivers that they had been verbally reprimanded for
slow driving, it appears that Mr. Roethle was subjected to the
normal production pressures under which the mine operated.
The
slowing down of one large truck on a .mine road often frustrates
and slows down production traffic behind it.
It is also noted
that Mr. Stailey testified that the "required speed going downhill" is 18 miles an hour.
(Emphasis added).
It does not appear
from the record that driving slowly was a viable option to
Mr. Roethle.
If management believed it was a viable option,
Mr. Roethle's foreman should have been mentioned this option to
Mr. Roethle on November 19th in conjunction with management's
obligation to address the complaining miner's safety fears.
It may be that with hindsight that Mr. Roethle now feels
that he might have been able to control the truck now that he
knows the bouncing behavior of the truck was caused by out of
round tires and that management now assures him that it would
have excused driving at a sp~ed slower than normally expected
production speed.
I~ must be kept in mind, however, that the
reasonableness and honesty of his belief must be based on his
perception of the unsafe driving condition of the truck at the
time he refused to drive the truck and not as of the time of the
hearing.
II
Section 105(c}(2) of the Act provides that a miner who
believes that he has been discriminated against· may, within 60
days after such violation occurs, file a complaint with the
Secretary.
Mr. Roethle es written complaint was not received within 60
days after the suspension occurred and thus was not within the
time limits
Section 105(c). The purpose of this time limit is
to avoid stale claims, but a late filing may be excused.
The
time limits in Section 105(c) are not jurisdictional in nature.
Christian Vo South Hopkins Coal Company, 1 FMSHRC 126, 134-136
(April 1979>v Bennett v. Kaiser Aluminum & Chemical Corporation 1
3 FMSHRC 1539 (June 1981)1 Secretary v. 4-A Coal Company, Inc.,
8 FMSHRC 240 (February 1989).
The Commission has indicated that dismissal of a complaint
for late filing is justified only if the respondent shows material, legal prejudice attributable to the delay.
Cf. Secretary/
Hale Vo 4-A Coal Company, Inc., supra. No such showing has been
made here.

661

III
The parties stipulated that Mr. Roethle's damages for the
10-day suspension consist of lost wages in the sum of $1,056.20
plus interest to be calculated in accordance with United Mine
Workers of America v. Clinchfield Coal Company, 10 FMSHRC 1943,
aff 'd, 895 F.2d 773 (10th Cir. 1989) (short-term federal rate
applicable to underpayment of taxes).
Mr. Roethle's personnel record should be expunged of all
matters relating to the incident of November 19, 1989 as requested in the discrimination complaint filed by the Secretary.
PENALTY ASSESSMENT
Section 110 (a) of the Act provides as follows:
The operator of a coal or other mine in which a
violation occurs of a ... mandatory health or safety
standard or who violates any other provision of
this Act, shall be assessed a civil penalty by
the Secretary which penalty shall not be more
than $10,000 for each such violation. Each occurrence of a violation of a mandatory health or safety standard may constitute a separate offense.
(Emphasis added).
It is also noted that the last sentence of section 105(c)(3)
of the Act states, "Violations by any person of paragraph (1)
shall be subject to the provisions of sections 108 and section
llO(a)." Thus it is clear that a penalty is to be assessed for
discrimination in violation of section 105(c)(l) of the Act.
In a discrimination case the Secretary is required to propose a specific dollar amount supported by relevant information
for assessing the appropriate penalty for the alleged violation
of section 105(c} of the Act.
In the case at bar the Secretary
in the discrimination complaint only requested that an appropriate civil money penalty be issued. At the hearingu however, the
Secretary on the record proposed that the penalty assessed be
between $2u000 and $2,SOOu based upon MSHA's review and analysis
of the case.
In additionr the Secretary in her post-hearing brief seeks
to impose a monthly civil monetary penalty upon Respondent on the
theory that Respondent has a policy with respect to its truck
drivers that constitutes an ongoing violation of section 105(c)
of the Act.
In essence, complaint seems to contend that Respondent has an ongoing policy of requiring its truck drivers to continue driving a truck which Management asserts to be safe even

662

though the driver has a reasonable good faith belief that the
condition of the truck is such that it would be hazardous to
continue to drive the truck.
I find no persuasive evidence that
Respondent has such a policy. On the contrary, the preponderance
of the evidence presented establishes that the Respondent except
for its failure in this case has a policy of addressing the safety concerns of its truck drivers.
There i~ no persuasive evidence that it has an ongoing policy of taking adverse action
against a driver for work refusal based on the driver's safety
concerns if it appears to Management that the driver has a reasonable good faith belief that the condition of the truck is such
that it would be hazardous to continue driving it.
In this case, however, Mr. Roethle was subjected to disparate treatment for his work refusal.
The foreman negligently misjudged the situation and thus management did not adequately address Mr. Roethle's safety concerns. Management may have had a
sincere but nevertheless mistaken belief that Mr. Roethle did not
have a reasonable good faith, .. belief in the safety hazard involved
in continuing to drive the truck. Such a sincere but mistaken
belief by management is no defense to a violation of Section
105(c) of the Act. In my opinion, the sincerity and reasonableness of such a belief on the part of management is one factor
that can be considered in determining the appropriate penalty,
along, with the statutory criteria in Section llO(c} of the Act.
I do find, however, that management was negligent in sending
Mr. Roethle home on November 19th before having a mechanic or
supervisor drive the 204 truck or ride in the cab of the 204
truck with Mr. Roethle, as Mr. Roethle requested before taking
adverse action against him. Management was negligent in failing
to adequately address Mr. Roethle's safety concerns. Mere visual
inspection of the 204 truck under the circumstances of this case
did not adequately address Mr. Roethle 0 s safety concerns.
With respect to historyv Complainant 0 s Exhibit C-1 is a
printout of Respondent's violations from November 19, 1987,
through November 18, 1989, at the Tyrone Mine and Mill.
It
shows a total of 88 paid violations of which 66 were of the
single penalty type"
Respondent is a large operator.
The Tyrone Mine includes a
number of divisions"
It has a concentrator, an XSEW Plant (which
is another means of processing copper ore>v a mechanical and
electrical division, and various miscellaneous divisions such as
leaching and securityo
Respondent objected to the violations printout (Ex. c-1) on
the basis that the exhibit does not purport to focus on the fines

663

or assessments relate to the mining operation which is the division in which Mr. Roethle is and was employed, nor to citations
that might relate to the operation of alleged defective equipment.
These objections were noted and correctly overruled.
On balance, everything considered, I concluded that a civil
penalty of $500 is the appropriate civil penalty for Respondent's
violation of 105(c) of the Act.
CONCLUSIONS OF LAW
1. Jurisdiction over this action is conferred upon the
Federal Mine Safety and Health Review Commission under Section
105(c)(2) and Section 113 of the Act.
2. Respondent's Tyrone Mine and Mill is a mine, as defined
in Section 3(b) of the Act, and the products of which affect commerce under Section 4 of the Act.
3.
Respondent was an operator at all relevant times within
the meaning of Section 3(d) of the Act.

4.
Richard G. Roethle was a miner at all relevant times
within the meaning of Section 3(g) of the Act.
5. Mr. Roethle engaged in protected activity when on November 19, 1989, he refused to drive the 204 muck truck which he believed to be unsafe.
His belief was a good faith, reasonable
beli

60 Mr. Roethle's suspension was directly motivated at least
to a
extent by his refusal to operate the 204 truck on
November 19v 1989.
7c

Mr. Roethleus claim is not barred by his failure to file

a written complaint within 60 days of the November 19, 1989,
incidento
ORDER
Based on the above findings of fact and conclusions of law,
it is ORDEREDi

lo Respondent shall pay to Complainant Richard G. Roethle
within 30 days of the date of this decision the sum of $1,056.20
representing lost wages during the 10-day suspension beginning
November 19, 1989, with interest thereon in accordance with the

664

commission decision in Local Union 2274, UMWA v. Clinchfield Coal
co., 10 FMSHRC 1493 (1988) calculate proximate to the time payment is actually made.

2. Respondent shall expunge from its personnel records all
references to the suspension of Richard G. Roethle that commenced
on November 19, 1989.
3. Respondent shall pay a civil penalty of $500 to the
Secretary of Labor for its violation of 105(c) of the Act.

{2.L?J.~
~
'~
~
~J

Augu'5f F· Cett1

Administrative
Law Judge
v

Distribution:
Michael H. Olvera, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Mr. Richard G. Roethle, P.O. Box 98, Tyrone, NM 88065
Mail)

(Certified

Charles L. Chesterv Esq., RYLEY, CARLOCK & APPLEWHITE, 101 North
First Avenue, Suite 2600u Phoenixu AZ 85003
(Certified Mail)

ek/sh

665

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

22041

APR 16 1991

DISCRIMINATION PROCEEDING

LARRY CODY,
Complainant

Docket No. CENT 90-167-DM

v.
MD 88-93
TEXAS SAND AND GRAVEL COMPANY,
INCORPORATED,
Respondent

DECISION
Appearances:

Before:

Larry Cody, Amarillo, Texas, Pro se;
Tad Fowler, Esq., Miller & Herring-; Amarillo,
Texas for the Respondent.

Judge Melick

This case is before me upon the complaint by Larry Cody
under section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seg., the "Act," alleging unlawful
discharge on September 14, 1988, by Texas Sand and Gravel
Company, Inc. (Texas Sand and Gravel) in violation of section
105(c)(l) of the Act 1 .
1 section 105(c)(l) of the Act provides as follows:
No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise
of
the statutory
rights
of
any miner,
representative of miners or applicant for employment in
any coal or other mine subject to this Act because such
miner,
representative of miners or applicant for
employment has filed or made a complaint under or related
to this Act, including a complaint notifying the operator
or the operator's agent, or the representative of the
miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine, or
because such miner, representative of miners or applicant
for employment is the subject of medical evaluations and
potential transfer under a standard published pursuant to
section 101 or because such miner, representative of

666

More particularly Mr. Cody alleges in his complaint as
follows:
I must haul heavy equipment on a low-boy.
I asked
for help to load a crane. The crane had no brakes.
While loading the crane, I could not see the back
wheels on the right side. The wheels slipped off the
low-boy and the crane turned over.
I went to the doctor, and even before I was
released from the doctor, Wayne Pulliam called me in
and said "You're fired."
About a month ago Wayne Pulliam told me to take
the crane to Vega Texas for concrete plant use.
I told
Wayne the crane don't [sic] have brakes how do I get it
off. So Wayne said he would go help me get it off all
of this took place in the shop at Mansfield Plant.
Their [sic] were witnesses. But when I had to go get
it I asked Wayne how am,,.I going to get it back on he
said I could handle it ..
Subsequently in response to a Show Cause Order Mr. Cody
supplemented his Complaint by noting that he believed that he was
fired due to safety related discrimination because, inter alia:
Before my accident I had asked Wayne Pulliam
[mine superintendent] for some 2 x 12 foot boards for
the sides of the low-boy, so I could safely haul the
wider equipment. As it was the crane had no brakes,
and less than half of the tires were on the low boy,
the other part hung off the bed. All I got as a reply
from Wayne Pulliam (who was the main boss at Mansfield
Plant), was a laugho
The above response is deemed to constitute an Amended
Complaint. In order to establish a prima facie case of
discrimination the Complainanat has the burden of proving that
(1) he engaged in protected activity and (2) the adverse action
complained of was motivated in any part by that protected
cont'd fn.l
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,
representatfve of miners or applicant for
employment on behalf of himself or others of any
statutory right afforded by this Act.

667

activity.
Consolidation Coal Co, 2 FMSHRC 2786, 2797-3800
(1980), rev'd on other grounds, sub nom. Consolidation Coal Co.
v. Marshall 663 F.2d, 1211 (3rd Cir.--r9'81); Secretary on behalf
of Robinette v. United Castle Coal Company, 3 FMSHRC 803, 817-818
(1981).
The mine operator may rebut a prima f acie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by protected activity.
If the
operator cannot rebut the prima facie case in this manner,
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected
activity alone.
Pasula, supra, Robinette, supra; See also
Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d 6339, 642
(4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d
954 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194 (6th Cir.
1983) (specifically approving the Commission's Pasula-Robinette
test).
See NLRB v. Transportation Management Corporation, 462
U.S. 393 (1983), approving a nearly identical test under the
National Labor Relations Act.
At hearing Cody testified that he was discharged by Texas
Sand and Gravel on September 14, 1988, the day after the crane he
was loading onto a low-boy
off and overturned. As a result
of this accident Cody was taken by a co-worker to see a doctor.
Cody testified that he "couldn'J;. walk very good--there was
something wrong with something"""'. The next morning when Cody
appeared for work he met with mine superintendent Wayne Pulliam.
Pulliam told Cody he had orders to let him go and in fact Cody
was then fired.
Cody appears to be alleging that this discharge
was the result of his having the accident the day before and that
this accident was the result of not having 2 by 12 outrigger
boards on the low-boy that would have provided support for the
wheels of the crane that overturned. According to Cody without
these boards the wheels of the crane were supported by only 3 or
4 inches of the 24-inch- width tires.
Cody maintains that he had
complained 2 or 3 weeks before this accident to superintendent
Pulliam that
would be safer to have the 2 x 12 board
outriggers to support the crane on the low-boy.
Pulliam
purportedly only laughed in response stating that "there wasn't
no way they could afford to buy them boards"
While I find therefore based upon the undisputed testimony
of Cody, that he in fact did make a protected safety complaint to
the Respondent I do not find that Cody has met his burden of
proving that his discharge 2 or 3 weeks later was motivated in
any part by that complaint. There
no evidence of any ill-will
2 Mr. Cody subsequently received worker's compensation benefits
for back injuries he sustained in this accident.

668

or retaliatory motive resulting from the complaint and Cody's
discharge occurred ohly hours after he engaged in the unprotected
activity of driving the crane off the low-boy causing it to
overturn. Cody himself acknowledges that this accident was
reason and the motivating factor for his discharge.
Under the circumstances I cannot find that Cody has
established a prima f acie case that his discharge was in
violation of section 105(c)(l) of the Act. This d(''s.crimination
proceeding must accordingly be dlsm· ssed.

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Law Judge

Mr. Larry Ccdy, Route 8, Box 72-9, Amarillo, Texas
(Certified Mail)

79118

Tad Fowler, Esq., Miller & Herring, 910 West Seventh, P.O. Box
2330, Amarillo, TX 79105 (Certified Mail)
nb

669

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

APR 19199\
DISCRIMINATION PROCEEDING

RICKY HAYS,
Complainant

v.
LEECO I

Docket No. KENT 90-59-D
MSHA Case No. BARB CD 89-32

INC. I
Respondent

No. 62 Mine
DECISION

Appearances:

Tony Oppegard, Esq., Stephen A. Sanders,
.,
Appalachian Research & Defense Fund of Kentucky,
Inc., Lexington and Prestonsburg, Kentucky, for
the Complainant;
Timothy Joe Walker, Esq., Reece, Lang & Breeding,
London, Kentucky, for the Respondent.

Before:

Judge Koutras
Statement of the case

This proceeding is before me to determine the rel
due the
complainant, including the payment of costs and attorney's fees,
based upon my
ion of September 28, 1990, finding that the
respondent Leeco, Inc., discriminated against the complainant in
violation of section 105(c) (1) of the Federal
Safety and
Health Act of 1977, 30 U.S.C. § 801
seg., the "Act." Ricky
Hays v.
., 12 FMSHRC 1850 (September 1990).

The parties are in agreement as to the amount of backpay
owed the complainant for the period of September 8, 1989, through
January 31, 1991, less any interim earnings, and
amount
$12,853.69, less interest. Backpay continues to accrue until
this case becomes final and the money is paid. The parties have
confirmed their preference for a backpay award with interest to
be calculated later pursuant to the formula employed by the
Commission.

670

Other Employment Benefits
Retirement Plan
The parties are in agreement that the respondent has a
retirement plan which vests upon the completion of 5 years'
employment, and that the respondent acknowledges its responsibility to make retirement payments into the complainant's account as
if he had not been discharged.
Medical Expenses
The parties have agreed to a procedure for determining
payments for any covered medical expenses incurred by the complainant during his employment with the respondent.
In a letter
dated January 13, 1991, complainant's counsel Oppegard summarized
this procedure as follows:
Because Mr. Hay:'?-' remedy is to file suit under Leeco's
health plan if the company declines coverage of these
medical expenses, and because the parties do not
believe that the Court is in a position to rule on
which medical bills Leeco has the responsibility to pay
under its medical plan, Mr. Walker and I proposed the
following:
that the Court simply rule that Leeco is
required to give the same consideration to Mr. Hays'
submitted medical expenses as it would have done had he
not been previously discharged.
In other words, that
Leeco review the Complainant's medical bills in a
non-discriminatory manner, and grant or deny coverage
accordingly.
If the Complainant prevails on appeal in
this matter, and Leeco then denies coverage of some of
Mr. Hays• bills, the Complainant would be required to
resort to the procedures provided by the Respondent's
health plan in the event that insurance coverage is
denied.
Attorney Fees and Litigation Expenses
Section 105(c) (3) of the Act provides in part as follows:
Whenever an order is issued sustaining the complainant 1 s charges under this subsection, a sum equal to the
aggregate amount of all costs and expenses (including
attorney 1 s fees) as determined by the Commission to
have been reasonably incurred by the miner, applicant
for employment or representative of miners for, or in
connection with, the institution and prosecution of
such proceedings shall be assessed against the person
committing such violation.

671

The complainant's initial submission of his statement of
attorney fees and expenses is for $55,213.52, representing the
following claimed expenses for the period September 15, 1989
through November 16, 1990:
1. Principal Attorney Tony Oppegard.
300.4 hours
billed at $150 per hour, for a total of $45,060.
2. Co-counsel Stephen A. Sanders. 26.5 hours
billed at $150 per hour ($3,975), and 34 hours billed
at $75 per hour ($2,550), for a total of $6,525.
3. Other litigation expenses (itemized as mileage
and lodging expenses, witness fees & mileage, telephone, expert witness fees and expenses, photocopying
and photographic expenses), for a total of $3,628.52.
The complainant's supplemental statement of additional
attorney fees for the-period November 17, 1990, through March 15,
1991, is for $8,325, representing the following claimed expenses:
1. Attorney Tony Oppegard.
53.8 hours billed at
$150 per hour, for a total of $8,070.
2. Attorney Stephen A. Sanders. 1.7 hours billed
at $150 per hour, for a total of $255.
The total amount of claimed attorney fees and expenses
submitted by the complainant is $63,538.52.
The respondent has filed objections to any award of attorney
fees 1 and the objections and issues ra
are as follows:
1. The respondent denies liab
for any attorney's fees or costs because the complainant's counsel
are employed by a Federally funded, non-profit legal
services corporation, and the complainant is not an
9
'eligible client 11 as defined by the Federal Legal
Services Corporation regulations.
2.
The amount of attorney fees sought by the
complainant is clearly unreasonable
light of the
monetary value of the other remed
sought and
obtained by the complainant.
3. The hourly billing rate claimed by the complainant's counsel is excessive.
4. The complainant's requested attorney fees are
clearly excessive and/or redundant and reflect a dupl
cation of attorney effort.

672

5. The complainant is not entitled to attorney
fees and costs incurred for the period from
September 15, 1989, through November 1, 1989, during
which period he had proceeded under section 105(c) (2)
of the Act and was awaiting MSHA's determination as to
whether or not the alleged violation had in fact
occurred.
The respondent has also filed an objection and opposition to
the complainant's motion for post-judgment 'interest on any
attorney fees award, and it has also filed a motion to hold in
abeyance any award with respect to attorney fees pending the
final disposition of a complaint which the respondent has filed
with the Legal Services Corporation challenging the propriety of
the Appalachian Research and Defense Fund's representation of the
complainant in this case.
The Status of the Appalachian Research and Defense Fund of
Kentucky, Inc. (ARDF)
The respondent denies any liability for the payment of
attorney fees and maintains that the complainant has incurred no
costs for attorney fees because his counsel are employees of a
federally-funded, non-profit corporation. The respondent states
that it has filed a complaint with the Legal Services Corporation
regarding the Appalachian Research and Defense Fund of Kentucky,
Inc., (ARDF), and the propriety of its representation of the
complainant and seeking attorney fees for its services. The
respondent maintains that the regulations of the Legal Services
Corporation provide that the "recipient" of funding by that
agency may accept a court-awarded fee only under certain circumstances, and that a prerequisite to ARDF's acceptance of a fee in
a fee-generating case is that a client be an "eligible client."
The respondent takes the position that the complainant was not an
"eligible client" when his representation was undertaken by ARDF,
because his income exceeded the allowable maximum income level
for "eligible clients," and that ARDF therefore should not be
permitted to accept any fees which may be awarded in this case.
The complainant takes the position that there is nothing
improper in ARDF's representation of the complainant, and that
pursuant to the regulations of the Legal Services Corporation,
any complaint in this regard, including any resulting sanctions,
is for that agency to consider. Citing 42 u.s.c.
§ 2996e(b) (1) (b), the complainant maintains that a trial court is
prohibited from affecting the final disposition of a legal
proceeding because of an alleged impropriety by a Legal Services
Corporation recipient program, and it cites the following cases
in support of its argument: Martens v. Hall, 444 F. Supp. 34
(S.D. Fla. 1977); Anderson v. Redman, 474 F. Supp. 511 (D. Del.
1979); Holland v. Steele, 92 F.R.D. 58 (N.D. Ga. 1981); Harris v.
Tower Loan of Mississippi, Inc., 609 F.2d 120 (5th Cir. 1980).

673

Findings and Conclusions
Costs and attorney fees have consistently been awarded to
counsel who were employed by a union or a private legal services
organization such as ARDF.
Eldridge v. Sunfire Coal
Company, 5 FMSHRC 1245 (July 1983); Munsey v. FMSHRC, 701 F.2d
976 (D.C. Cir. 1983); Chaney Creek Coal corporation v. FMSHRC,
866 F.2d 1424 (D.C. 1989); Robert Simpson v. Kenta Energy, Inc.
and Roy Dan Jackson, 11 FMSHRC 2543 (December 1989); Ronald
Tolbert v. Chaney Creek Coal Corp., 9 FMSHRC 929 (May 1987). See
Council of the Southern Mountains, Inc. v. Martin County
Coal Corporation, 3 FMSHRC 526 (February 1981), and in particular
the cases cited at 3 FMSHRC 549-552, concerning costs and attorneys fees awardable to legal services non-profit corporations.
Prior challenges to the propriety of ARDF's legal representation of miners in discrimination proceedings before the
Commission have been rejected. See: Bradley v. Belva Coal,
3 FMSHRC 921, 924 (1981); Eld'ridge v. sunfire Coal Company,
supra.
In addition, eight U.S. Circuit Courts of Appeals have
considered and rejected similar challenges concerning the propriety of legal representation provided by such legal services
organizations. See: Bonnes v. Long, 599 F.2d 1316 (4th Cir.
1979); Weisenberger v. Huecker, 593 F.2d 49 (6th Cir. 1979);
Mid-Hudson Legal Services v. G & U, Inc., 578 F.2d 34 (2nd Cir.
1978); Perez v. Rodriguez Bou, 575 F.2d 21 (1st Cir. 1978);
Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977); Bond v.
Stanton, 555 F.2d 172 (7th Cir. 1977), cert. denied, 438 U.S. 916
(1978); Sellers v. Wallman, 510 F.2d 119 (5th Cir. 1975);
Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974).
After further consideration of the arguments presented by
the parties I conclude and find that the complainant's position
correct, and the position taken by the respondent is rejected.
Unreasonableness of Attorney Fees in Light of Other Remedies
The respondent asserts that the amount of attorney fees
sought by the complainant
clearly unreasonable in light of the
monetary value of the other remedies sought and obtained by the
complainant in this case. Citing Hensley v. Eckerhart,
103 S. ct. 1933 (1983), the respondent points out that the amount
of money involved in a dispute is a relevant factor in determining the reasonableness of attorney fees to be awarded. Respondent concludes that while the complainant has been awarded
reinstatement in addition to back pay, he had already obtained
other employment when this litigation was begun and the difference in his wages was not so great as to justify the huge fee
sought by his counsel.
Conceding the fact that the monetary amount of a plaintiff's
recovery is a relevant factor in determining the reasonableness

674

of attorney fees to be awarded, the complainant asserts that this
is but one factor to be considered, and that the Supreme Court
has expressly rejected the proposition that attorney fee awards
under civil rights statutes should necessarily be proportionate
to the amount of damages a plaintiff actually recovers. Johnson
v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974);
city of Riverside v. Rivera, 106 s. ct. 2686, 2691, 2694 (1986).
The complainant has cited a number of Federal court cases in
which attorney fees awarded greatly exceeded the amount of
damages recovered by a plaintiff.
Recognizing the fact that the requested attorney fees are
almost five times greater than his backpay award, the complainant
nonetheless points out that the respondent has been ordered to
reinstate him to his former position, and that although he is
currently employed by another company, he intends to return to
work with the respondent if he prevails on any appeal of this
case. Under the circumstances, the complainant asserts that his
backpay continues to accrue,.~ill continue to grow pending any
appeal, and could in~rease greatly if he were to lose his present
job.
Complainant further argues that the Mine Act is remedial
legislation which affects the public interest as well as the
interest of the individual miner, and that by prevailing in this
case, he has served the public interest by vindicating important
federal safety rights. Further, by establishing that the respondent has violated the Act, complainant concludes that his case
may also deter the respondent from continuing its unlawful
conduct, and thus assure that other miners are not subjected to
similar unsafe working conditions.
Citing the Supreme Court's decision in Hensley v. Eckerhart,
supra, the complainant believes that since his attorney obtained
excellent results in his case, he should recover a fully compensatory fee which normally encompasses all hours reasonably
expended on the litigation. Relying on the Commission's consistent holdings in discrimination cases that miners who have
suffered discrimination should be made whole, the complainant
concludes that he would not be made whole, and the effects of the
respondent 1 s unlawful discrimination would not be eliminated, if
his counsel are not fully awarded the reasonable fees sought in
th
matter.
Findings and Conclusions
It seems clear to me that the amount recovered as back pay
does not determine the reasonableness of the attorney fee
request, Copeland v. Marshall, 641 F.2d 880, 906-908, (D.C. Cir.
1980). See also: Munsey v. Smitty Baker Coal Company, Inc.,
3 FMSHRC 2056 (1981); Simpson v. Kenta Energy, Inc., 7 FMSHRC 272
(1985); and Munsey v. Smitty Baker Coal Co., Inc., et al.,

675

5 FMSHRC 2085 (December 1983), where Judge Melick stated as
follows at 5 FMSHRC 2091:
While the overall attorney fee award in this case
is more than seventeen times the damages awarded the
actual victim of discrimination, it is well recognized
that market value fee awards in cases such as this take
into account the need to assure that miners with bona
fide claims of discrimination are able to find capable
lawyers to represent them.
In addition, the success in
this case represents a vindication. of societal interests incorporated in the mine safety legislation above
and beyond the particular individual rights vindicated
in the case. Accordingly, I do not find the substantial fee award in this case to be excessive or in the
nature of a "windfall."
After careful consideration of the arguments presented by
the parties, I agree with the·position taken by the complainant,
and I conclude and find that any attorney fee award to the
complainant in this case should not be reduced simply because his
back pay award is relatively small and he had already obtained
other employment when this litigation was begun.
The appropriate Hourly Rate
Arguments Presented by the Parties
The complainant's counsel Oppegard has billed at an hourly
rate of $150.
Co-counsel Sanders has billed at an hourly rate of
$75 for claimed work with Mr. Oppegard, and at an hourly rate of
$150 for his remaining claimed legal work.
In support of the
$150 hourly rate, the complainant states that the rate represents
the current market rate for legal work performed in order to
compensate for delay in payment and in lieu of requesting an
enhancement of the "lodestar." The complainant believes that
enhancement of the lodestar is fully warranted in this case, and
in his interrogatory response to a discovery request by the
respondent, complainant asserted that such enhancement was
warranted because of the contingent nature of the case, particularly the high risk factor in light of the fact that the case was
rejected for prosecution by MSHA, the excellent representation
provided and the results achieved, and the certain delay in
payment that will occur in view of the respondent's assertion
that it intends to appeal the decision in his case.
Complainant asserts that his attorneys have exercised
billing judgment with respect to the hours worked in litigating
his claim, and that when counsel felt that certain legal work
could have been performed in less than the actual hours expended,
they did not bill for those additional hours.
In addition,
complainant asserts that while travel time is compensable,

676

counsel has not billed for several hours of travel time spent on
his case.
In his responses to certain discovery requests by the
respondent, and in support of the $150 hourly rate, the complainant cites the Supreme Court's holding in Blum v. Stenson,
104 s. ct. 1541 (1984), that the "prevailing market rate'' is the
rate "prevailing in the community for similar services by lawyers
of reasonably comparable skill, experience and reputation,"
104 s. Ct. at 1547, n. 11. The complainant asserts that counsel
Oppegard and Sanders are the most experienced attorneys in
eastern Kentucky in handling safety discrimination litigation
under section 105(c) of the Act. Complainant points out that
there are few plaintiffs' attorneys in eastern Kentucky who have
litigated even one such case, whereas counsel Oppegard has
litigated approximately 42 such cases, and sanders about 9.
The complainant has submitted affidavits from counsel
Oppegard and Sanders, and af~~davits from seven (7) local plaintiffs' attorneys in support of the reasonableness of the claimed
hourly rate of $150. The complainant has also submitted an
affidavit from a local attorney who successfully represented a
complaining miner in a recent proceeding before Judge Fauver,
Charles T. Smith v. Kem Coal Company, 12 FMSHRC 2130 (October
1990). The complainant states that this was the only case ever
litigated by the attorney pursuant to section 105(c) of the Act,
and that on January 31, 1991, Judge Fauver awarded the attorney
$150 per hour for his services after finding that the fee rate
was reasonable for comparable cases in the eastern Kentucky area.
In further support of his argument, the complainant, in his
discovery responses, states that on December 18, 1989, Judge
Broderick approved an hourly rate of $125 for legal work performed by counsel Oppegard and Sanders during the period of
December, 1984, through November, 1989, in the cases of Robert
Simpson v. Kenta Energy, Inc. and Roy Dan Jackson, 11 FMSHRC 2543
(1989), and that more recently in the case of Odell Maggard v.
Chaney Creek Coal Corporation, 12 FMSHRC 1749 (August 1990),
Judge Melick awarded counsel Oppegard an hourly fee of $150 for
legal work performed during the period June, 1986, through April,
1990. The complainant also cites a case 10 years ago, where
former Commission Judge Steffey awarded an attorney an hourly
rate of $100, for representing a miner in the only discrimination
case ever litigated by the attorney, Elias Mosley v. Whitley
Development corporation, 3 FMSHRC 746, 762 (1981).
In its initial statement objecting to the payment of any
attorney fees, the respondent asserted that the complainant bears
the burden of establishing the "current market rate," citing
Hensley v. Eckerhart, 103 S. Ct. 1933 (1983).

677

In its subsequently filed objections, the respondent maintains that the claimed hourly billing rate for the ~omplainant's
attorneys is excessive.
In support of its argument, the respondent asserts that five of the supporting attorney affidavits
submitted in support of the requested hourly rate are based, in
part, on the supposed "contingent" nature of this case. Under
the circumstances, the respondent concludes that it would appear
that instead of requesting enhancement of the lodestar, complainant's counsel have incorporated the enhancement into the lodestar
by adjusting their hourly rate to account for supposed "delay in
payment" and "contingency," and have also subsequently moved for
an award of post-judgment interest to be added to their fee.
The respondent argues that contingency should not be a
factor which leads to an award of a high hourly attorney fee in
this case. The respondent points out that the complainant has
been fully employed throughout this litigation and has earned
$48,560.90, in substitute employment as of January 31, 1991. The
respondent believes that had c.omplainant' s counsel been in
private practice, they could have entered into an agreement with
the complainant providing for payment of their fees, at a lower
hourly rate (.i_.g., one
reflecting "delay in payment" or "risk
of non-payment"), and could reasonably have expected to be paid,
win or lose.
In view of the complainant's arguments that his
attorneys are entitled to the same fees as that of counsel in
private practice, notwithstanding the fact that they are employed
by a non-profit corporation, the respondent concludes that
complainant's attorneys clearly should not be awarded additional
compensation for delays or risks incurred because their employing
organization cannot bill its client directly.
The respondent further believes that the complainant's
request for post-judgment interest on its attorney's fees stands
on the same footing as the request for an hourly rate based on
contingency or delay, and that it seems obvious that counsel
cannot be compensated twice, in different ways, for the same
thing. The respondent concludes that in the event the complainant's counsel are awarded an hourly billing rate which reflects
anticipated delay in payment or risk of non-payment, then an
award of interest
addition thereto would be an impermissible
redundancy, citing Library of Congress v. Shaw, 106 s. ct. 2957
(1986) ("delay adjustment" equated with award of interest and
therefore not awardable against Federal government) .
In further response to the respondent's argument's concerning the "contingent" nature of his case, the complainant asserts
that the respondent's argument that he could have entered into a
standard attorney fee arrangement with his attorneys if they were
in private practice, while at the same time arguing that his
attorneys should be treated differently than attorneys in private
pract
because they are employed by a non-profit organization
that does not bill its clients directly, is contradictory,

678

irrelevant and without merit.
The complainant points out that
his attorneys are not private, for-profit practitioners, and that
the respondent has produced no evidence that miners who retain
private, for-profit counsel in section 105(c) discrimination
cases in eastern Kentucky have entered into anything other than
contingency agreements, and that the affidavits submitted by the
complainant indicates that private attorneys in the area uniformly view such cases as contingent in nature.
The complainant further asserts that the respondent's
argument that the contingent nature of his case should be overlooked because the ARDF is a non-profit law office ignores the
explicit holding of the Supreme Court in 'Blum v. Stenson,
104 s. ct. 1541 (1984), where the court stated as follows at
104 S. Ct. 1564:
Petitioner's argument that the use of market rates
violates congressional intent • • . is flatly contradicted by the legislatiye history of [the statute].
It
also clear from the legislative history that
Congress did not intend the calculation of fee awards
to vary depending on whether plaintiff was represented
by private counsel or by a nonprofit legal services
organization . . • • The statute and legislative history establish that "reasonable fees" under § 1988 are
to be calculated according to the prevailing market
rates in the relevant community, regardless of whether
plaintiff is represented by private or nonprofit counsel.
104 s. Ct. at 1546-1547 (emphasis added).
Citing a Supreme Court and several lower federal court
decisions, the complainant further argues that a contingent fee
contract does not impose an automatic ceiling on an award of
attorney fees, and that even if private, for-profit attorneys
bi
their poorer clients at lower than normal (reduced) b
ing
rates because of the financial inability of the client to pay
regular rates, the prevailing market rate method should be used
to compute the proper attorney fee award.
The complainant points out that in the few instances where
the respondent has actually challenged the reasonableness of
specific work performed by his attorneys, its objections are
nothing more than speculating that, in retrospect, perhaps the
work could have been performed by a single attorney.
However,
the complainant believes that he should be granted some latitude
with respect to the legal strategy and techniques employed by his
counsel, particularly since he prevailed, and in spite of the
difficulty encountered by his attorneys in securing testimony
from frightened witnesses.
The complainant concludes that the
respondent has not rebutted his convincing evidence that $150 per
hour is a reasonable fee for both attorneys Oppegard and Sanders,

679

particularly in light of Judge Fauver's recent award of $150 per
hour to an inexperienced attorney practicing his f i~st discrimination case.
Finally, the complainant suggests that the substantial
amount of work performed by his attorneys could have been avoided
had the respondent engaged in good faith settlement negotiations
with him. The complainant asserts that on May 3, 1990, prior to
the trial of this case, he offered to wave reinstatement and
attorneys fees, and to dismiss his case for the payment of
$20,400 by the respondent. However, the respondent rejected his
offer, and made a counteroffer of only $3,000. The complainant
views this rejection as an extension of the respondent's belief
that his case is frivolous, and he believes that the respondent
is simply a litigant who does not want to pay the reasonable fees
for the work required of his counsel to prove its inlawful
conduct.
Findings and Conclusions
The recognized method of computing the amount of attorney's
fees begins by multiplying a reasonable hourly rate by the number
of hours reasonably expended. Hensley v. Eckerhart, 103 s. ct.
1933 (1983); Blum v. Stenson, 104 s. Ct. 1541 (1984); Copeland v.
Marshall, 641 F.2d 880 (D.C. Cir. 1980). The resulting figure is
called the lodestar. The lodestar fee may then be adjusted to
reflect a variety of other factors, including the complexity of
the case, the experience level of the attorney, the contingen~
nature of the case, and any anticipated delay in payment of the
fee award.
See: Johnson v. Georgia Highway Express, Inc., 488
F.2d 714, 717-719 (5th Cir. 1974), where the court established 12
guidelines for establishing attorney fee awards. These guidelines have been followed in the D.C. Circuit. See~ Evans v.
Sheraton Park Hotel, 503 F.2d 177, 188 (D.C. Cir. 1974); Copeland
v. Marshall, supra. The appropriate hourly rate is the rate
prevailing for similar work in the community where the attorneys
practice law. Johnson v. Georgia Highway Express, Inc., supra;
Copeland v. Marshall, supra.
Section 105(c) (3) of the Act provides for an award of
attorney's fees which have been reasonably incurred by the
prevailing miner in a discrimination case. Thus, the appropriate
measure of an attorney's time for establishing his fees is not
the actual time spent but the time that should reasonably have
been spent.
Spray-Rite Service Corporation v. Monsanto Co.,
684 F.2d 1226 (7th Cir. 1982): Copeland v. Marshall, supra.
In
Johnson v. Georgia Highway Express, Inc., supra, the court made
the following observation at 488 F.2d 720:
The trial judge is-necessarily called upon to question
the time, expertise, and professional work of a lawyer
which is always difficult and sometimes distasteful.

680

But that is the task, and it must be kept in mind that
the plaintiff has the burden of proving his entitlement
to an award for attorneys' fees just as he would bear
the burden of proving a claim for any other money
judgment.
After careful review and consideration of the arguments
presented by the parties, and taking into account the applicable
case law, I conclude and find that the complainant has met its
burden of establishing both the appropriateness and reasonableness of the claimed hourly rate of $150.
I am persuaded that the
affidavits submitted by the complainant, the experience and
competence level of his attorneys, and the recent hourly fee
awards made to his counsel in other comparable discrimination
cases, which took into account the prevailing local community
rate, supports an hourly fee award of $150 per hour in this case.
While it is true that complainant's counsel have been awarded
lesser hourly rates in the past, taking into account the
increased cost of living, inflation, and the added experience
level of counsel, I cannot conclude that $150 per hour is unreasonable or unjustified. The respondent's arguments to the
contrary are rejected, and I find nothing improper or unreasonable in including contingency and delay in payment of a fee as
part 0£ the lodestar rate of $150 per hour in this case.
Attorney Fees for Work Performed Prior to Accrual of Cause of
Action before the Commission
The respondent points out that any attorney fees for complaining miners who prevail pursuant to the Act are provided for
by section 105(c) (3), which generally creates a private cause of
action for any complaints the Secretary has declined to pursue
after investigation. The respondent further points out that
attorney fees are not provided for by section 105(c) (2) of the
Act 1 and it objects to the payment of any fees incurred for the
period from September 15, 1989, through November 1, 1989, when
the complainant had proceeded under section 105(c) (2) and was
awaiting MSHA's determination as to whether or not an alleged
violation had in fact occurred. The fees claimed by attorney
Oppegard for the period from September 15, through November 1,
1989, are for 23.3 hours at $150 per hour, for a total of $3,495.
The respondent requests that these fees be disallowed.
The respondent takes the position that the time frame for
any attorney fees payable in this matter initially began on
November 14, 1989, when the complainant's cause of action before
the Commission accrued with the receipt of MSHA's adverse determination on November 14, 1989, as alleged in his complaint.
In
support of its position, the respondent argues that the complainant had a right to pursue a complaint on his own behalf pursuant
to section 105(c) (3) only after MSHA declined to prosecute his
claim, and it concludes that the Act provides no basis for an

681

award of attorney fees for time spent by the attorney assisting
the complainant in an effort to persuade MSHA to go~forward with
his claim. At that stage, the respondent believes that the
complainant was an intervenor under section 105(c) (2) of the Act,
and as such was not entitled to attorney fees.
The respondent
cites Chaney Creek Coal Company v. FMSHRC, 866 F.2d 1424 (D.C.
Cir. 1989}; and Eastern Associated Coal Corporation v. FMSHRC,
813 F.2d 639 (4th Cir. 1987}, in support of its argument.
The respondent further argues that if MSHA had elected to
prosecute the complaint in the complainant's behalf, then the
complainant would not have been entitled to any award of attorney's fees.
Under the circumstances, the respondent concludes
that it would be both ironic and improper to allow the fees in
question, for the time spent by the attorney during MSHA's
investigation, because the complainant failed to convince MSHA
that his claim had merit.
The complainant takes the position that the respondent's
objections to the awa~d of attorney fees for work performed prior
to MSHA's determination in his case are wholly without merit.
In
support of his argument that fees are awardable, the complainant
cites the language of section 105(c} (3), which authorizes an
award to a miner whose complaint is sustained for expenses and
fees reasonably incurred for, or in connection with the institution and prosecution of such proceedings.
The complainant maintains that because it is necessary for a
miner to first file a discrimination complaint with MSHA prior to
the filing of his complaint with the Commission, work performed
by the complainant's attorney during this initial, critical phase
clearly is "in connection with the institution" of the miner's
complaint"
Complainant asserts that his attorney performed
important work during this stage of the proceeding, including an
initial interview with the complainant, other witness interviews,
and submissions to MSHA's special investigator.
Complainant
further asserts that the attorney-client relationship with ARDF
had already begun during the relevant period, and all of the work
claimed by his attorney was iUin connection with" his proceeding
against the respondent.
With regard to the respondent 1 s "intervenor" argument, the
complainant asserts that the respondent's reliance on Eastern
Associated Coal Corporation is misplaced, and that at no time was
the complainant an intervenor. The complainant asserts that only
5.7 of the 23.3 hours spent during the period in question was
related to MSHA's investigation, and that the remainder of the
time was not connected to the investigation, but rather was spent
interviewing the complainant and various witnesses. The complainant concludes that in light of the fact that he was required
to file a complaint with MSHA to initiate his action, and that
MSHA then expects him to cooperate during its investigation of

682

his complaint, it is clear that the time spent by his attorney
was reasonable.
Findings and Conclusions
In my view, if a private attorney agrees to perform work for
a complaining miner while the matter is pending an MSHA investigation and determination as to whether a violation of section
105(c) (1) has occurred, the attorney does so at his own risk of
not being compensated for his work should MSHA decide to pursue
the claim before the Commission.
In such a situation, the
attorney would not be entitled to an award of attorney's fees.
See: Eastern Associated Coal Corporation v. FMSHRC, 813 F.2d 639
(4th Cir. 1987). However, should MSHA decline to file a complaint on the miner's behalf, and the miner does so pursuant to
section 105(c) (3), and prevails, his attorney would be entitled
to an award of reasonable attorney fees because his work was for
or in connection with the institution and prosecution of such
proceedings which resulted in an order sustaining the complainant's charges under this subsection.
After careful consideration of the arguments presented by
the parties, I conclude and find that the complainant has the
better part of the argument. The respondent's contention that
the complainant should be treated as an intervenor is rejected,
and I agree with the complainant's position that any work performed by counsel during the pendency of his complaint with MSHA
was work connected with his discrimination complaint against the
respondent. on the facts of this case, I conclude and find that
the work performed by complainant's attorney at the time the
complainant filed his complaint with MSHA, and while his complaint was being investigated by MSHA, was work connected with
the institution and prosecution of a discrimination proceeding
which ultimately ripened into a section 105(c) (3) proceeding
before the Commission.
In Johnson v. Georgia Highway Express, supra, at 488 F.2d
717, the Court of Appeals stated that "It is appropriate to
distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics, and
other work which can often be accomplished by non-lawyers but
which a lawyer may do because he has no other help available.
Such non-legal work may command a lesser rate.
Its dollar value
is not enhanced just because a lawyer does it."
I conclude and find that the time spent by Attorney Oppegard
during the period that the complaint was being pursued and
investigated by MSHA, including interviews, meetings, and phone
calls with the complainant and MSHA's special investigator, was
"non-legal work" unconnected with the trial of the case, or
preparation for the trial of the case. The complainant's assertion that only 5.7 of the 23.3 hours spent during the time in

683

question was related to MSHA's investigation is rejected.
I
conclude and find that all of the time spent was in~connection
with the investigation, including the 10.5 hours charged to
"interviewing witnesses." I further conclude and find that $50
per hour is a reasonable billing rate for this work. Accordingly, I will allow $1,165, for this work (23.3 hours x $50)# and
the requested fees are reduced by $2,330.
Complainant has claimed an additional 6.0 of work for the
period November 17, 1989, through December 15, 1989, prior to the
receipt of the complaint by the Commission on December 18, 1989.
With the exception of one day (December 15 1 1989) for .4 hours
spent in a letter to the complainant, the work claimed for the
remaining 6 days includes telephone calls and conversations,
either listed separately, or included as part of several activities.
Except for the time spent on December 13, 1989, drafting
and dictating the complaint of discrimination, I conclude and
find that all of the remaining work was "non-legal" work conducted during the investigatiq11 stage of the complaint.
I will
allow 1.0 hour for the-drafting of the complaint, which is not
complex, at an hourly rate of $150, and 5.0 hours at $50 an hour
for the remaining work claimed, for a total of $400. The
requested fees ($900), for all of this work, is reduced by $500.
Fee Billing for Work Performed from December 18. 1989, through
November 16, 1990
The complainant has billed for 271.1 hours for claimedwork
performed by attorney Oppegard from December 18, 1989 (the date
the complaint was received by the Commission) through
November 16, 1990, for a total of $40,665 (271.1 hours x $150).
The complainant has billed 8.3 hours for Mr. Oppegard's
claimed work on April 25 1 1990, in meeting with the complainant
and in the i 1 preparation 11 and taking of the depositions of respondent 1 s adverse witnesses Clayton Hacker and Clyde Collins during
the discovery stage of this case.
The amount claimed for this
work is $1,245 (8.3 hrs, x $150). The record reflects that both
depositions were taken at the ARDF 1 s law offices in Manchester,
Kentucky.
The deposition of Mr. Hacker began at 3:45 p.m., and
except for 10 minutes of "off the record" time, it concluded at
6:05 p.m.
The deposition of Mr. Collins began at 6~10 p.m., and
concluded at 6:57 p.m. Mr. Oppegard conducted the examination of
the witnesses, and respondent's counsel asked no questions.
Although Mr. Sanders was present, he asked no questions, and his
participation was apparently limited to his appearance.
It would appear from the foregoing that the actual time
spent in the taking of the depositions amounted to three
(3) hours at most, and tlie "preparation" required by Mr. Oppegard
is not further explained or documented.
I conclude and find that
the claimed 8.3 hours for this work is excessive.
I will allow

684

$645 for this work (4.3 hrs. x $150), and the requested fees are
reduced by $600.
The complainant has billed 5.7 hours for unexplained
"research 11 by Mr. Oppegard on June 23, August 23, and
September 7, 1990, and the requested fee is $855 (5.7 hrs. x
$150) . Additional time charges for unexplained "research" are
included among other claimed work items for April 24, May 6, and
May 11, 1990. The requested fees for the 5.7 hours are unsupported and they are disallowed.
I will als9 deduct a total of
3.0 hours for the unexplained "research" included with the other
work items for April and May, 1990. The requested fees are
reduced by $1,305 (8.7 hrs. x $150).
The complainant has billed 10.3 hours for Mr. Oppegard's
claimed work on September 14, 1990, in connection with the
drafting, dictation, editing, and finalizing of a reply brief and
a "letter to client. 11 The time devoted to the letter is included
with the work on the brief. , The. amount claimed for all of this
work is $1,545 (l0.3-hrs. x $150).
At the conclusion of the trial in this matter, the parties
were informed that they would have an opportunity to file simultaneous briefs (Tr. 246, Vol. II), and they did so in accordance
with an order which I issued after receipt of the transcripts.
Reply briefs were not requested or required by the trial judge,
nor did the parties seek leave to file reply briefs.
Mr. Oppegard filed the reply brief at his own initiative, and in
his accompanying letter of September 14, 1990, he characterized
it as "a short reply brief." Indeed, the brief consists of ten
(10) double spaced "letter size" (8-1/2 x 10-1/2} pages.
I conclude and find that the initial brief filed by
Mro Oppegard adequately covered his position, and that the reply
brief did not materially affect the trial judge's understanding
of the factual and legal arguments presented by the parties.
Under the circumstances, I conclude and find that the filing of
the reply brief was not necessary or essential and that the time
charged is excessive and unreasonable. However, since
Mr. Oppegard did perform the work which he apparently believed
was essential to his case, I will allow $300 for this work
(2.0 hours x $150} and the client letter, and the requested fees
are reduced by $1,245,
The complainant has billed 14.0 hours for Mr. Oppegard's
actual trial participation during the 2-day trial conducted on
May 8 and 9, 1990. The record reflects that the trial began at
9:30 a.m., on May 8, recessed an hour for lunch, and concluded at
4:40 p.m. The second day's trial session on May 9, began at
9:15 a.m., recessed an hour for lunch, and concluded at 3:20 p.m.
Accordingly, the claimed trial time will be allowed.

685

The complainant has billed 4.0 hours for claimed work by
Mr. Oppegard on May 1, 1990, in connection with his~interview of
one witness, his dictation of notes, and a telephone conversation
with the complainant. Additional phone conversations and interviews with witnesses from May 2, through May 4, 1990, are
included among other work items on those days, for a total
additional billing of 16.7 hours. The sum total of all of this
claimed work a week before the trial is 20.7 hours, and the
amount claimed is $3,105 (20.7 hrs. x $150).
The complainant has billed 8.3 hours for May 5, 1990, for
Mr. Oppegard's reading of the depositions of the complainant, the
depositions of witnesses Clayton Hacker and Clyde Collins, and
"other preparation for trial." An additional 13.5 hours is
claimed for May 6, 1990, interviewing witnesses, dictating notes,
and "preparation for trial," and 15.8 hours is claimed for May 7,
1990, in "preparation of client and witness for trial," phone
conversations with opposing counsel and witnesses, and "other
trial preparation. 11 Further c.laims are made for 2. O hours to
"prepare for trial" on-May 8, 1990, the first day of the trial,
and an additional 5.5 hours is claimed that same day to "prepare
for resumption of trial." An additional 1.5 hours to "prepare
for resumption of trial" is also billed for May 9, 1990, the
second day of the trial, and 1.5 hours is billed for
Mr. Oppegard's return to Hazard from the Pikeville trial location. The sum total of all of this claimed work from May 5,
1990, through May 9, 1990, is 48.l hours, and the amount claimed
is $7,215 (48.1 hrs. x $150).
Excluding the 14.0 hours actually spent in the 2-day trial,
and the 1.4 hours travel time to Hazard, complainant has billed a
total of 67.3 hoursf at a claimed cost of $10,095, for work by
Mr, Oppegard in speaking with the complainant and witnesses,
reading three depositions, and other 11 trial preparation 11 (which
is not further explained}.
The complainant's deposition is not a part of the record,
but based on a claimed cost of $25.60 for a copy of the transcript1 I assume that it
not particularly lengthy. The Hacker
and Collins depositions are a part of the record.
I have read
both depositions, and the time consumed in reading them at a
moderate rate of speed was less than 1 hour. Under the circumstances, and in light of the unexplained "other preparation for
trial 11 work, I find that the claimed 8.3 hours for May 5, 1990,
is excessive.
I will allow 2.0 hours for this work, and disallow
5.3 hours. The requested fees are reduced by $945 (6.3 x $150}.
In the course of certain pre-trial discovery rulings which I
issued on January 25, 1990, I noted my belief that the issues in
this case did not appear to be particularly complex.
I am still
of that opinion. Under the circumstances, I conclude and find
that the 59.0 hours claimed for interviews with witnesses who are

686

not identified, and other unexplained "trial preparation'' is
excessive and unreasonable.
I take note of the fact that during
the complainant's testimony on the first day of trial, six of the
subpoenaed witnesses called by the complainant gave relatively
short and rather repetitive testimony, and four of them were
examined by Mr. Sanders. From the submissions by the complainant, it is not clear to me which witnesses may have been contacted and interviewed by phone, and which were personally
interviewed in advance of trial, and the unspecified work characterized as "trial preparation" is not explained or further
documented. Under all of .these circumstances, the claimed
59.0 hours of work is reduced by one-third, and the requested
fees are reduced by $2,940 (19.6 hrs. x $150).
In view of the allowable mileage, lodging, and meal expenses
while at the hearing, the requested fee payment of 1.5 hours for
Mr. Oppegard's return to Hazard is disallowed, and the requested
fees are reduced by $225 (1.5 hrs. x $150).
The complainant has billed 27.6 hours for Mr. Oppegard's
reading of the transcripts, notetaking, and indexing, ($4,140)
and 48.5 hours for his work in preparing his brief ($7,275). The
sum total claimed for this work is $11,415.
I take note of the
fact that the hearing transcript for the 2-day trial is in two
volumes totalling 534 pages. Under the circumstances, I cannot
conclude that the time charged for reading, notetaking, and
indexing of the transcript is excessive or unreasonable. However, I find that the time spent in brief preparation is excessive. As noted earlier, the case was not particularly complex,
nor were the issues that difficult so as to require an inordinate
amount of time in trial preparation, "research," and brief
writing.
In this regard, I take note of Mr. Oppegard's affidavit
support of the claimed fees in which he states that he has
read virtually every safety discrimination decision issued by
Commission Judges, the full Commission, and the U.S. Courts of
Appeals since the passage of the 1977 Act, and that he has
litigated far more discrimination cases than any other private
attorney in the country. Under the circumstances, I have difficulty justifying the claimed 48.5 hours for working on the
briefing. Accordingly, the time is reduced by one-third, and the
requested fees are reduced by $2,415 (16.1 hrs. x $150).
The complainant has billed for 7.1 hours ($1,065) for
claimed time spent by Mr. Oppegard in telephone conversations
with the complainant, co-counsel sanders, and opposing counsel
Walker intermittently from January 5, 1990, to November 6, 1990.
Additional time is claimed for numerous additional telephone
conversations which are included among other claimed work items,
and these conversations were with the complainant, Mr. Sanders,
opposing counsel, unidentified witnesses, and other individuals

687

whose connection with this case is unexplained.
Selected examples of such telephone conversations are as follows:
4/19/90 "phone conversations with Herschel Potter . . . John Rosenberg &
Steve . • David Griffith • . 11 ; 4/26/90 - "phone conversation with
Steve Hoyle (at MSHA Academy); 5/4/90- "phone conversations with
Kentucky Department of Mines & Minerals." Since these additional
daily telephone calls are not listed separately from the other
claimed work, I have no way of knowing how much time Mr. Oppegard
spent on the telephone or how much was devoted to the other
listed work items.
I take note of the fact that many of the
calls to the complainant were apparently made to discuss the
"status of case," and while some calls are unexplained, I assume
that the posthearing calls were in connection with the relief
aspects of this case. I take particular note of a claimed charge
of .4 hours for Mr. Oppegard to "dictate posthearing thoughts."
Upon review of the detailed itemized listing of the time
claimed for telephone calls and conversations, I am not totally
convinced that all of these calls and conversations were necessary in this case. However, in the absence of any specific
challenge by the respondent, I will allow most of the charges.
However, in view of the fact that some of the telephone time is
unexplained, I will make a deduction of two (2) hours from the
claimed fees and will disallow the .4 hours for Mr. Oppegard's
dictation of his posthearing thoughts. The requested fees are
reduced by $360 (2.4 hrs. x $150).
Duplicative and Redundant Legal Work'
The respondent argues that the complainant has requested
attorney's fees for services which are "clearly excessive and/or
redundant. 11 As an example, the respondent asserts that numerous
entries in the claims for attorney's fees for Mr. Sanders are
designated as 11 work performed simultaneously with co-counsel."
Recognizing that Complainant's counsel have billed such services
at a lesser rate, the respondent believes that it still would be
unfair to require it to pay any amount for duplication of effort
by two attorneys.
In support of this argument, the respondent
maintains that neither the issues nor the proof in this case were
so complex, nor was the amount in controversy so great, as to
require or justify the presence of two attorneys for one party at
depositions, meeting with the client, interviews with witnesses,
and the formal hearing.
The respondent argues that the evidence submitted by complainant's counsel in support of their billing rate tends to show
that Mr. Oppegard possesses considerable skill and expertise in
the area of mine safety law, so it is not consistent with
Mr. Oppegard's position that he required assistance with the
technical aspects of this· case.
If, on the other hand, the case
was so time consuming as to require a division of labor, respondent concludes that this would not justify the presence of two

688

attorneys simultaneously for steps taken in the investigation and
discovery of the case, or at the hearing.
The respondent asserts that the time spent by attorney
Sanders on February 13, 1990, "to review case file," apparently
"to bring himself up to speed in the case,n is not a service for
which an assisting attorney should expect compensation from a
client, or, in this case, from the opposing party. Respondent
points out that while it appears that Mr. Sanders spent some time
on May 7, 1990, reviewing "depositions of Backer and Collins," an
activity which also had been performed by Mr. Oppegard, it is not
clear how much time was spent since this item is part of an
aggregate entry incorporating several activities.
The respondent maintains that since Mr. Sanders' attendance
at the hearing was duplicative, his preparation for the hearing
and his travel to and from the hearing should be disallowed, as
well. The respondent concludes that the elimination of these
redundancies results in a deduction of Mr. Sanders' fees by at
least 9.5 hours at $150 per hour arid by 34 hours at $75 per hour,
for a total reduction of at least $3,975, not including time
spent in review of depositions on 5/7/90, which cannot be determined on the bas
of complainant's submissions.
Charles v.
National Tea Co., 488 F. Supp. 270 (W.D.LA. 1980).
The complainant maintains that the participation by
Mr. Sanders was vital to the success of his case, and he points
out that he had the burden of proof, that his discrimination
complaint was rejected by MSHA, and that virtually all of the
witnesses were reluctant to talk to his counsel. Complainant
concludes that a diligent effort was required in order to uncover
the facts and thoroughly present his case at trial, that the
successful prosecution of his case required the work of two
attorneys, and that he should not be penalized for employing
multiple counsel, The complainant cites several federal court
decisions awarding attorney fees for more than one counsel in
support of his argument.
The complainant asserts that there are only six billing
instances, totalling 34 hours, for services performed simultaneously by Mr. Sanders with Mr. Oppegard, and that in each
instance Mr. Sanders has b led at only one-half the rate claimed
by Mr. Oppegard. The complainant asserts that the trial responsibilities of Mr. Sanders and Mr. Oppegard "were roughly evenly
divided. 11 and that Mr. Sanders spent 14 hours at the trial,
during which both he and Mr. Oppegard conducted direct and crossexamination of the witnesses.
Complainant points out that
Mr. Sanders also spent 5.5 hours interviewing an expert witness
and inspecting the mine with Mr. Oppegard, and that all of this
time was essential for Mr. Sanders' understanding of the case,
particularly since he was responsible for the direct examination
of the expert witness.

689

The complainant asserts that Mr. Sanders also spent
9.5 hours in preparing for and attending depositions of key
witnesses in the case, including the deposition of one witness
(Clayton Hacker), whom Mr. Sanders was responsible for crossexamining at trial, and that he also spent 5 hours interviewing
several witnesses with Mr. Oppegard on May 3, 1990. Complainant
maintains that Mr. Sanders' interviews was likewise necessary in
that he was responsible for questioning some of the witnesses at
trial.
Findings and Conclusions
In Johnson v. Georqia Highway Express, Inc., supra, at 488
F.2d 714, the fifth Circuit Court of Appeals stated "If more than
one attorney is involved, the possibility of duplication of
effort along with the proper utilization of time should be
scrutinized. The time of two or three lawyers in a courtroom or
conference when one would do, may obviously be discounted."
Likewise, in Copeland v. Marshall, supra, at 641 F.2d 891, the
D.C. Circuit Court of -Appeals, stated "· . . where three attorneys are present at a hearing when one would suffice, compensation should be denied for the excess time." See also:
Charles
v. National Tea co., 488 F. Supp. 270 (D.C. W.D. La. 1980), where
the court cited Johnson v. Georgia Highway Express, Inc., supra,
and stated at 488 F. Supp. 276 that "The time of two (2) lawyers
in a courtroom when one would do, may obviously be discounted."
The complainant's argument that two attorneys were necessary
because he had the burden of proof, that his discrimination
complaint was rejected by MSHA, and that the witnesses were
reluctant to speak with his counsel are rejected as a reasonable
basis for justifying the need for two attorneys.
The burden of
proof, MSHA 1 s rejection of initial complaints, and the reluctance
of witnesses to speak with counsel are not unique to the instant
case, and these arguments can be made in any discrimination case.
Indeed, counsel Oppegard has handled prior cases where these
factors were present, but only he prepared and tried the case.
Although the complainant has filed an affidavit by Mr. Oppegard
stating that the respondent 1 s hourly employees were afraid to
talk to his counsel and were intimidated prior to trial, there is
no suggestion or assertion that Mr. Sanders played any unique or
unusual role in eliciting the cooperation or testimony of these
employees, all of whom were under subpoena to testify.
The complainant's argument that the trial responsibilities
of Mr. Sanders and Mr. Oppegard were roughly evenly divided and
that both attorneys conducted direct and cross-examination of the
witnesses is rejected as any justification for the need for two
attorneys.
The issue is not whether the work was done, but
rather, whether the use of two attorneys was necessary or crucial
to the successful prosecution of the complainant's case.
I

690

conclude and find that it was not.
See:
Donnell v. United
States, 682 F.2d 240, 250 fn. 27 (D.C. Cir. 1982). ~
The record reflects that Mr. Oppegard conducted the examination of the complainant and four of the witnesses who testified
the first day of the trial. Mr. Sanders examined the expert
witness (Craft) and four additional witnesses (Marty Lewis,
Eldridge, Combs, and Caudill). The direct testimony of these
witnesses is relatively brief and uncomplicated, with little
cross-examination, and limited redirect of only one witness. The
direct testimony of Mr. Lewis consumed six (6) transcript pages;
Mr. Eldridge, three (3) pages; Mr. Caudill, four pages; and
Mr. Combs, five pages, and seven additional questions on
redirect.
I find nothing unique or unusual about the testimony
of these witnesses, nor do I find any particular unique "trial
strategy" that necessitated or required the questioning of these
witnesses by Mr. Sanders, rather than Mr. Oppegard.
In short, I
can find no valid reason why Mr. Oppegard could not have prepared
and examined these witnesses.
The record further reflects that Mr. Oppegard handled the
cross-examination of two of the three witnesses presented by the
respondent during the second day of trial (Garcia and Hacker) ,
and that Mr. Sanders cross-examined one of the witnesses
(Collins). Although Mr. Sanders was present at the pre-trial
depositions of Hacker and Collins on April 25, 1990, he asked no
questions, and Mr. Oppegard conducted the entire questioning of
both deponents. Again, I find no valid reason why Mr. Oppegard
could not have conducted the cross-examination of Mr. Collins.
I have reviewed the case decisions cited by the complainant
at page 9 of his initial response to the respondent's objections
to the payment of any attorney fees to Mro Sanders and I find
that the factual basis on which the courts found that more than
one attorney was reasonable are distinguishable from those
presented in this case. The cases cited involved protracted
civil rights class actions, difficult constitutional First
Amendment rights issues, a lengthy and complex "abortion rights"
case with constitutional issues, and a difficult school desegregation case.
In my view, the difficulty and complexity level of
the complainant's case does not rise to the level of the cited
cases, and his arguments are rejected.
In his fee supporting affidavit, Mr. Oppegard asserts that
the presentation of the complainant's case was made more diff
cult because it concerned a piece of mining equipment, i.g., the
continuance haulage system, that is unusual for eastern Kentucky,
and required the employment of an expert witness who travelled
underground with counsel to inspect this system.
In his fee
supporting affidavit, Mr. Sanders confirms that the continuous
haulage system in question is not in common use in eastern
Kentucky and that an understanding of how that equipment operated

691

was necessary to fully appreciate the dangers which the complainant was subjected to. Mr. Sanders further asserts ~hat any
understanding of these dangers required consultation with an
expert and a visit to the mine to view the equipment.
The complainant's suggestion that the continuous haulage
system utilized by the respondent rendered the case more difficult and complex is rejected. Although I agree that an underground mine visit was necessary to view the system so that
counsel and the witness could familiarize themselves with it in
an actual working environment, I am not convinced that two
attorneys were required to do this. Nor am I convinced that an
examination of the continuous haulage system, which was used in
conjunction with a conventional continuous-mining machine and
roof bolters, required any particular engineering or technical
expertise.
Indeed, the complainant's "expert" witness William
craft was offered as an expert with respect to the application
and interpretation of MSHA's mandatory safety standards and
general mine safety matters, r_~ther than any technical or engineering expert on a Long-Airdox continuous haulage system (Tr.
185, Vol. I).
The record reflects that Mr. Craft is the former MSHA
District Manager at Madisonville, Kentucky, who retired on
disability in 1981, and who has worked since that time as a
self-employed consultant. Mr. Craft's testimony and opinion that
it would be dangerous for a miner to service the continuous
haulage system while it was in operation, did not, in my view,
require any particular scientific or technical knowledge of the
system, and his opinion testimony concerning the hazards associated with servicing the system while it was moving and in operation could just as well have applied to any piece of underground
mining equipment.
Indeed, the record reflects that Mr. Craft's
knowledge of the continuous haulage system was limited to the
mine visit when he viewed the system with counsel, and his review
of a rather brief Long-Airdox sales brochure which explains the
operation of the system. Aside from his opinion concerning the
servicing of the system while it was moving, the critical thrust
of Mr. Craft's testimony was that to do so violated at least two
MSHA mandatory safety standards (Tr. 201-206, Vol. I).
I see no
reason why Mr. Oppegard could not have prepared and examined
Mr. Craft at the hearing.
As noted earlier, the complainant's justification for the
hourly fee of $150 in this case is based on Mr. Oppegard's
longstanding expertise in mine safety discrimination cases and
his asserted role as a leading nationwide attorney in this area
of the law. Under the circumstances, I find it rather contradictory that the complainant would require the additional services
of Mr. Sanders to assist~Mr. Oppegard in the pursuit of his case,
and expect the respondent to pay for this.

692

In view of the forgoing, and in the absence of any showing
of any compelling need or justification for the use~of two
attorneys in this case, I agree with the respondent's position
that the services of Mr. sanders were not required or justified,
and that the fees claimed by the complainant for these services
should be denied. Accordingly, they are denied, and the complainant's requested fees are reduced by an additional $6,525.
Other Litigation Expenses
The respondent has filed no objections to the complainant's
claims for the itemized other litigation expenses shown in
Exhibit C to his initial statement of expenses. Under the
circumstances, the claimed expenses are allowed.
Supplemental Attorney Fee Claims for Work Performed from
November 17, 1990, through March 15, 1991
Complainant has billed ,.12. 3 J:iours for the time spent by
Mr. Oppegard in telephone conversations with Mr. Sanders and
other private attorneys in connection with the question of the
reasonableness of the hourly rate charged by Mr. Oppegard. An
additional 19.9 hours are charged for research and other work by
Mr. Oppegard concerning the attorneys fee issue. Thus, the
complainant has claimed $4,830 (32.2 hrs. x $150) for work by
Mr. Oppegard justifying his fee rate and responding to the
respondent's objections. This is over and above the $675 claimed
by Mr. Oppegard for work on November 16, 1990, calculating
litigation expenses and preparing the fee statement. An additional amount of $255 is claimed for work by Mr. Sanders in
talking with private attorneys about the reasonableness of the
attorney fees (1.7 hrs. x $150). The total amount of fees
claimed for work connected with defending and justifying the
reasonableness of the complainant 1 s attorneys fees is $5,760.
I take note of several court decisions in the D.C. Circuit
allowing and disallowing an attorney compensation for time spent
on the question of his fees.
In Kiser v. Miller, 364 F. Supp.
1311, 1318 (D.D.C. 1973), the court discounted by 30 percent the
amount of time spent by attorneys on the question of their fees.
In National Ass'n of Regional Medical Programs v. Weinberger,
396 F. Supp. 842, 850 (D.D.C. 1975), the court reduced the number
of hours claimed for fee petition work from 475 hours to
150 hours, after finding that the claimed hours were excessive
considering the amount of effort and skill expended in seeking
the fees.
See also:
National Council of Community Mental Health
Centers, Inc., v. Weinberger, 387 F. Supp. 991 (D.D.C. 1974).
In
Parker v. Matthews, 411 F. Supp. 1059, 1066-1067 (D.D.C. 1976),
the court allowed the full amount of time spent on attorneys
fees.

693

Approximately seventy (70) percent of the 53.8 hours and
$8,070, claimed by the complainant for the additional work of
Mr. Oppegard, is for work in connection with the issue concerning
the reasonableness of Mr. Oppegard's fees. After reviewing the
submissions by the parties with respect to this issue, I cannot
conclude that the fee issue was so complex as to require the
amount of work expended by Mr. Oppegard. Under the circumstances, I conclude and find that the hours and amount claimed in
the supplemental filing for fees is excessive, and I have reduced
it by one-half and will allow 16.1 hours and $2,415. I will also
allow the $675 for fee work claimed by Mr. Oppegard on
November 16, 1990. The $255 claimed for fee work by Mr. Sanders
on January 22, 24, and 28, 1991, is denied. The requested fees
are reduced by $255, and by $2,415 (16.1 hrs. x $150).
On the basis of the foregoing findings and conclusions,
including the reductions made to the complainant's requests for
attorneys fees, the total requested fees are reduced by $22,060,
and I will allow payment of $3,7, 850, for attorney fees in this
case, and $3,628.52, for other litigation costs and expenses, or
a total of $41,478.52 for attorney fees and litigation costs and
expenses ($63,538.52-$22,060).
ORDER
IT IS ORDERED that:
1. My decision in this case, issued on
September 28, 1990, is now final
2. The respondent shall reinstate the complainant
to his former position with full backpay and benefits,
with interest, at the same rate of pay, on the same
shift, and with the same status and classification that
he would now hold had he not been unlawfully
discharged.
The backpay due the complainant for the period of
September 8, 1989, through January 31, 1991, less any
interim earnings and less interest is $12,853.69.
Backpay and interest will continue to accrue until this
matter becomes final and Mr. Hays is reinstated and
paid. The interest accrued with respect to the backpay
will be computed according to the Commission's decision
in Local Union 2274, UMWA v. Clinchfield Coal Co.,
10 FMSHRC 1483 (1988), aff'd sub nom. Clinchfield Coal
Co. v. FMSHRC 895 F.2d 773 (D.C. Cir., 1990), and
calculated in accordance with the formula in
Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042
(1984).

694

3. The respondent shall expunge from the complainant's personnel records and/or any other company
records any reference to his discharge of September 7,
1989.

4.
The respondent shall adhere to its agreement
to make retirement payments into the complainant's
account as if he had not been discharged.
5.
The respondent shall adhere to the agreed upon
procedure for determining any payments due the complainant for covered medical expenses incurred during
his employment, and it shall give the same consideration to the complainant's submitted medical expenses
as it would have done had he not been discharged.
6.
The respondent shall pay the complainant's
attorney fees and other litigation costs and expenses
of $41,478.52.

7.
The respondent shall post a copy of my decision of September 28, 1990, and the instant decision,
at its No. 62 Mine in a conspicuous, unobstructed place
where notices to employees are customarily posted for a
period of 60 consecutive days from the date of this
decision and order.

IT IS FURTHER ORDERED that:
1.
The respondent shall comply with the aforesaid
enumerated Orders within thirty (30) days of the date
of this decision,
2o
The complainant vs request for post-judgment
interest on the attorney fee award IS DENIED.

3.
The respondent's motion to hold the attorney
fee award in abeyance pending determination of its
complaint filed with the Legal Services Corporation IS
DENIED.

\ dministrati ve Law Judge

695

Distribution:
Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., 630 Maxwelton Court, Lexington, KY 40508
(Certified Mail)
Stephen A. Sanders, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., 205 Front Street, Prestonsburg, KY 41653
(Certified Mail)
Timothy Joe Walker, Esq., Reece, Lang & Breeding, P.O.
Drawer 5087, London, KY 40741 (Certified Mail)
/fb

696

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

22041

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 90-107
A.C. No. 15-16508-03516

v.
Harlan Mine No. 1
J B D MINING COMPANY, INC.,
Respondent
DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Mr. Jefferson B. Davis, President, J B F Mining
Company, Inc., Pathfork, Kentucky, for the
Respondent.

Before:

Judge Fauver

This case for civil penalties under § llO(i) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801
seq., came
on for hearing in Kingsport, Tennessee, on March 12, 1991. At
the conclusion of the submission of evidence, the parties moved
for approval of a settlement. For the reasons stated on the
record, the motion was granted. This decision confirms the bench
decision.
ORDER
WHEREFORE IT IS ORDERED that:
1. The § 104(a) citations and
this proceeding are each AFFIRMED.

§

104(b) orders involved in

2. Respondent shall pay the approved civil penalties of
$1,620.00 within 30 days of the date of this decision.

tt.};tt. ~

:r-

MA V eA.,..
William Fauver
Administrative Law Judge

697

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

APR 26 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.

CIVIL PENALTY PROCEEDING
Docket No. CENT 90-25
A.C. No. 29-00096-03534
McKinley Mine

v.
PITTSBURG & MIDWAY COAL
Respondent
DECISION
Appearances:

Before:

Michael H. Olvera, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
for Petitioner;
Ray D. Gardner, Esq., Pittsburg & Midway Coal Mining Company, Englewood, Colorado,
for Respondent.

Judge Cetti

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor (Secretary) pursuant to Section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
U.SoCo § 801 et ~u the "Actv 0' charging Pittsburg & Midway Coal
Mining Company CP&M) with a 104Cd)(l) significant and substantial
violation of 30 C.F.R. § 77.404(a).
P&M filed a timely answer to the Secretary's proposal for
penaltyu denying the alleged violation. After notice to the partiese an evidentiary hearing on the merits was held before me at
Albuquerquev New Mexico. Both parties filed post-hearing briefsv
which I consideredv along with the entire record in making this
decision.
Issues
The issues presented in this proceeding include the
following:
1. Whether the 170-ton Unit Rig Haul truck powered by a
Cummins diesel engine was being maintained in a safe operating
condition as required by 30 C.F.R. § 717.404(a).

698

2.
If a violation of the cited standard is found, whether
it is of a "significant and substantial" nature.
3. If a violation is found, whether the contested 104(d)(l)
order resulted from an unwarrantable failure by P&M to comply
with the cited standard.
1

4.
If a violation is found, the appropriate civil penalty
that should be assessed, taking into consideration the statutory
civil penalty criteria found in Section llO(i) of the Act.
Statement of the Case
The McKinley Mine operated by the Respondent P&M is a surf ace coal mine.
The citation in question charges P&M with a violation of 30 C.F.R. § 77~404(a), which is a broadly worded safety
standard requiring operators of surface coal mines to maintain
mobile and stationary machinery and equipment in "safe operating
condition". The cited safety standard in its entirety reads as
follows:
77.404

Machinery and equipment~ operation
and maintenance.

(a) Mobile and stationary machinery and
equipment shall be maintained in safe
operating condition and machinery or
equipment in unsafe condition shall be
removed immediately.
P&M is charged with failure to maintain its Unit Rig 170-ton
haul truck in a safe operating conditionc
The haul truck weighs 192 fully loaded and travels at an
average speed of 22 miles per hour. The haul truck functions as
follows:
(a) a fuel pump located and fixed on the diesel engine
draws fuel from a tank to run the diesel engine Cb) the diesel
engine turns an alternator to generate electricity, and (c) the
electricity generated runs two electric driven motors located
near the rear wheels. Although the haul truck was supplied by
Unit Rig Inc.u the diesel engine, including the electrical fuel
shut-off system and the mechanical fuel shut-off system it replaced to successfully abate the alleged violation, were both
manufactured by Cummins Engine Company.
After careful review and evaluation of the evidence, the

699

arguments of the parties and the record as a whole, I find that
the preponderance of the evidence presented fails to establish
that P&M did not maintain the truck in a safe operating condition. I therefore find that there was no violation of 30 C.F.R.
§ 77.404.
Even though there was no violation of the cited standard, it
is undisputed and clear from the record that Respondent made the
modification required to successfully and timely abate the alleged violation.
At the time the citation was issued, the haul truck had a
properly designed and functional electric fuel shut-off system
that was turned on and off by turning a key on the dashboarq in
the cab of the truck. The modification made to abate the violation was to replace the electric fuel shut-off system with a mechanical fuel shut-off system. Both options are manufactured by
the Cummins Engine Company. ,After abatement, the truck still had
a single fuel shut-off system. There was no meaningful difference in the safe operating conditiion of the truck before and
after abatement of the citation.
II

The finding and conclusion that there was no violation of
the cited safety standard is based upon the fact that the preponderance of the evidence presented at the hearing established
that none of the optional fuel shut-off systems for the Cummings
diesel engine on the Unit Rig haul trucks are related to employee
safety. The evidence established that the fuel shut-off systems
on these trucks are designed solely to protect the diesel engine
from damage and thus mitigate the potential economic loss that
would result from destruction of the truckvs diesel engineo
These findings and conclusions are based on the creditable
testimony of Mr. William R. Baltus, regional service manager for
the Cummins Engine Company, and Mr. Norvell Moore, mine manager
at the McKinley Mine. The only witness called by Petitioner was
the MSHA inspector who issued the citation. He testified he had
no experience with haul trucks.
(Tr. 34). Messrs. Baltus and
Mooreu on the other hand, have had many years of relevent experience. Mr. Baltus has been the regional service manager for Cummins Engine Company for the past 13 years and has worked for the
manufacture of the diesel engine in question for 35 years. This
experience included working in the research and engineering labs
with production-type and advanced research-type engines. Mr.
Baltus was also employed as the supervisor of the company's test
mechanics.

700

I credit the testimony of Messrs. Baltus and Moore. The
evidence presented at the hearing fails to establish that the
haul truck in question was not being maintained in a safe ope rating condition. The citation should therefore be vacated.
III

The cited safety standard, 30 C.F.R. § 77.404 is a broadly
worded standard.
It requires all machinery and equipment to be
maintained in safe operating condition. The Commission in Ideal
Cement Company, 11 FMSHRC 2409 at 2416 (November 1990) stated
that in interpreting and applying broadly worded standards, the
appropriate test is whether a reasonably prudent person familiar
with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard, citing Canon Coal Co., 9 FMSHRC 667, 668
(April 1987), Quinland Coal, Inc., 9 FMSHRC 1614, 1617-1618
(September 1987).
Assuming arguendo that the fuel shut-off system on the truck
in question affected safety, I find, on the basis of the evidence
presented at the hearing, that a reasonably prudent person familiar with the mining industry and the protective purposes of the
standard would not have recognized that the haul truck should
have been equipped with a mechanical fuel shut-off system rather
than the functional electric fuel shut-off system with which it
was equipped at the time the citation was issued.
Based on the creditable testimony of Mr. Baltus of the
Cummins Engine Company and Mr. Moore, I conclude there were no
violations of the cited standard. The citation is VACATED.
ORDER
Citation Noc 2840029 is VACATED and its related proposed
penalty is set aside.

Au st F. Cetti
Administrative Law Judge

701

Distribution:
Jack F. Ostrander, Esq., Michael H. Olvera, Esq., Office of the
Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite
501, Dallas, TX 75202 (Certified Mail)
Ray D. Gardner, Esq., The Pittsburg & Midway Coal Mining Co.,
6400 South Fiddler's Green Circle, Englewood, co 80111-4991
(Certified Mail)
Mr. Robert Butero, International Health and Safety Representative
for UMWA District 13, 228 Lea Street, Trinidad, CO 81082
(Certified Mail)

sh

702

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

22041

APR 2 9 \991

DISCRIMINATION PROCEEDING

CHARLES M. LAPOE,
Complainant

v.

Docket No. WEVA 91-72-D

EASTERN ASSOCIATED COAL CORP.,
Respondent

MORG CD 90-13
Federal No. 2 Mine

DECISION

Appearances:

Before:

Charles M. LaPoe, pro se, Core, West Virginia;
Thomas L. Clarke, Esq., Charleston, West
Virginia for Respondent.

Judge Melick

During hearings the Complainant acknowledged that he had ·
obtained the remedy he was seeking in these proceedings in that
he has been reassigned to his job classification as a belt
cleaner. Accordingly these proceedings have been rrndered moot
and the Complaint is hereby dismiJsed.~
/j

iv I 1t1-"~
i~ tra
1

I

·1

~ /~

\

!

WV .

6529 (Express

,,

,/:;aryMllck
' !\
\,A/\J
ilA.dmini
ti ve Law1llrUd e vL
\
Distribution~

1!

Charles M. LaPoe, Route 1, Box 19E,, Core,
Mail)

Mr.

\.
v

Thomas L. Clarke, Esq., 800 Laidley Tower, P.O. Box 1233,
Charleston, WV 25324 (Express Mail)
nb

703

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

,~PR 30 1991
CIVIL PENALTY PROCEEDINGS

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

!

Docket No. KENT 91-12
A.C. No. 15-13920-03680

v.

Docket No. KENT 91-13
A.C. No. 15-14492-03572

PYRO MINING COMPANY,
Respondent

DECISION
Appearances:

Before:

W.F. Taylor,.Esq., Office of the Solicitor, U.S.
Department of Labor, Nashville, Tennessee, for the
Secretary of Labor (Secretary); William M. Craft,
Mine Safety and Health Consultant, Madisonville,
Kentucky for Pyro Mining Company (Pyro).

Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks penalties for seven alleged violations
of mandatory safety standards contained in the above dockets.
Docket Noo KENT 92-12 involves the No. 9 Wheatcroft Mine; Docket
Noo KENT 92-13 involves the Baker Mine. When the cases were
called for hearing on March 19, 1991, the Secretary submitted an
oral motion on the record for approval of a settlement between
the parties with respect to all the alleged violations in Docket
No. KENT 91-12. The first two citations in the docket charge
violations of 30 C.F.R. § 75.313 because methane monitors were
inoperativeo The violations were originally assessed at $192
each.
Both violations were judged significant and substantial.
The motion proposes a reduction in the penalties to $96 each, and
a modification of the citation to eliminate the significant and
substantial finding.
No methane was detected in the area and the
motion stated there was no reasonable likelihood of injury. The
third and fourth citations charging violations of 30 C.F.R. §§
75.1725 and 75.302 were assessed at $192 each and Pyro agrees to
pay those amounts. The final citation charged a violation of 30
C.F.R. § 75.400 because of coal dust and float coal dust along
the belt. The motion proposes a reduction in the penalty from
$335 to $165, and a deletion of the significant and substantial
finding on the ground that the accumulation was not as extensive
or dangerous as originally believed.

704

I stated on the record that I would approve the settlement
agreement.
Pursuant to notice, Docket No. KENT 91-13 was called for
hearing in Nashville, Tennessee, on March 19, 1991. Inspector
Cheryl Smith McMackin and Clifford D. Burden were called as
witnesses by the Secretary. Charles Dame was called as a witness
by Pyro. Both parties argued their positions on the record at
the conclusion of the hearing and waived their rights to file
post-hearing briefs with proposed findings of' fact and
conclusions of law.
I have considered the entire record and the
contentions of the parties in making the following decision.
FINDINGS OF FACT
I

PRELIMINARY FINDINGS

At all times pertinent hereto, Pyre was the owner and
operator of an underground coal mine in Webster County, Kentucky,
known as the Baker Mine.
Pyro is a large operator. The Baker
mine liberates 500,000 cubic feet of methane in a 24 hour period.
Because of this, it is subject to spot inspections every 15 days
at irregular intervals under section 103(i) of the Mine Act.
Between September 10, 1988 and September 9, 1990, Pyro had 1581
paid violations of mandatory health and safety standards.
Between'July 16, 1988 and July 16, 1990, the Baker Mine had 7
cited violations of 30 C.F.R. § 75.305 and 13 cited violations of
30 C.F.R. § 75.316. This history is not such that penalties
otherwise appropriate should be increased because of it.
II

CITATION 3420048/0RDER 3420053

In early July 1990, a roof fall occurred in the return air
course in the Nao l Unit of the Baker Mine. The fall was about
six feet high and extended 35 to 50 feet along the entry.
This was the return air course of an active unit, but the
faces were inactive when the citation involved in this proceeding
was issued. On July 12, 1990, Federal Mine Inspector Cheryl
McMackin was conducting a regular inspection of the Mine and was
unable to travel the air course because of the roof fall.
She
tried to circumvent the area of the fall, but was prevented in
part by other roof falls.
It was therefore not possible to walk
the entire return air course in the No. 1 unit. She discussed
the matter with Pyre's Safety Manger, Charles Dame, and decided
to further discuss the matter with her MSHA supervisors.

705

on July 16, 1990, Inspector McMackin returned to the mine
and to the return a
course of the No. 1 Unit. The condition
had not changed from that which existed on July 12. She issued a
section 104(a) citation charging a violation of 30 C.F.R. §
75.305.
At the time the citation was issued the air was
following its proper course. Methane in the amounts of .2 to .3
percent was found in the dead end faces beyond the roof fall.
It
was not possible to see or adequately communicate from one side
of the roof fall to the other. On this issue, I accept the
testimony of Inspector McMackin:
Q.
Could you communicate back and forth through the
area?

A. Not in a conversation.
over there.

I could hear that he was

Q.

Was he yelling?

A.

Yes.

Q.

Did you yell back at him?

A.

Yes, I did.

(R. 46)

And, discount that of Mr. Dame:
The Witness:
I couldn't see her physically.
see her speak.
Judge Broderick:
The witness:

I could

Did you communicate with each other?

Yes, siro

(Ro 123)

The inspector considered the violation to be significant and
substantial, because in the area where travel was impossible, an
examiner would be unable to evaluate the methane liberation,
oxygen content in the atmosphere, and hazards in the roof.
She
fixed the date for termination of the violation as July 23, 1990.
Inspector McMackin returned to the mine on July 24, 1990.
She met Mr. Dame prior to going underground, and he told her the
condition cited on July 16 had not been corrected. No request
was made for an extension of time to correct the condition.
McMackin and Dame went underground and found that the condition
cited on July 16 was unchanged. She issued a section 104(b)
order of withdrawal for failure to abate the cited violation.
After she came out of the mine, Baker Mine Superintendent Potter
told her that a petition for modification had been filed which
would have permitted mining to continue with the cited condition.
She ascertained by consulting MSHA offices that such a petition
had not been filed.
Later C.D. Burden, Safety Director, said

706

that the petition was prepared but not yet mailed. Still later
on the same day, before the inspector left the mine, an addendum
to the ventilation plan was approved by MSHA concerning rerouting the return air course so that it could be travelled.
However, the addendum failed to show roof falls which had
occurred in the middle entries, and thus the return still could
not be entirely examined. Another addendum was submitted and
approved by MSHA on July 25, changing the air course in a way
that it could be travelled in its entirety. This abated the
condition cited, and Inspector McMackin terminated the citation
and order.
III

CITATION 3420049

The MSHA approved ventilation plan for the Baker mine
provides in part that airlock doors shall be so arranged that the
passage of equipment along the entries will not cause
interruption of the a~r current. Doors are required to be in
pairs to form an airlock. On July 16, 1990, Inspector Cheryl
McMackin issued a citation charging a violation of 30 C.F.R. §
75.316 because the inby door of the pair of doors installed in
the 2nd East submain track entry was chained open. The two doors
were approximately 300 feet apart. The inspector took an air
reading with the outby door closed and recorded approximately
eleven hundred cubic feet of air per minute travelling down the
entry. When the outby door was open there was an increase of
approximately 30,000 feet per minute of air going down the entry.
The ventilation system of the Baker Mine is tied in with the
ventilation system of the Wheatcroft No. 9 mine. An increase in
the amount and velocity of the
resulting from the doors being
open could change the direction of air in the belt entry, could
circumvent the c.o.-monitoring system 1 and make
difficult to
determine in the event of a fire, where the fire was. The area
in question was travelled regularly in that it was the main
access to the mineus two producing units. The violation was
abated within the time prescribed in the citation by repairing
the door controlso There had been an electrical or mechanical
the controls.
REGULATIONS

30 C.F.R.

§

75.305 provides in part as follows:

In addition to the preshift and daily examinations
required by this Subpart, examinations for hazardous
conditions, including tests for methane, and for
compliance with the mandatory standards, shall be made
at least once each week by a certified person
designated by the operator in the return of each split
of air where it enters the main return, on pillar

707

falls, at seals, in the main return, at least one entry
of each intake and return air course in its entirety,
idle workings, and insofar as safety considerations
permit, abandoned areas.

*
30. C.F.R.

§

*

*

75.316 provides in part as follows:

A ventilation system and methane and dust control plan
and revisions thereto suitable to the conditions and
the mining system of the coal mine and approved by the
Secretary shall be adopted by the operator.

*

*

*

ISSUES
1.
Whether the evidence,_shows that as of July 16, 1990, it
was not possible to make a weekly examination of at least one
entry in the 4th East return air course in its entirety?

2.
If a violation of 30 C.F.R. § 75.305 was established,
whether the time for abatement should have been extended prior to
the issuance of a withdrawal order under section 104(b)?
3.
If a violation of § 75.305 was established, what is
appropriate penalty therefor?

~he

4. Whether the evidence shows a violation of the approved
ventilation plan on July 16, 1990, because the inby door of a
pair of airlock doors could not be closed?
5o
If a violation of § 75.316 was established, what is the
appropriate penalty therefor?

CONCLUSIONS OF LAW
I

At all times pertinent to this case, Pyro was subject to the
provisions of the Mine Act in the operation of the Baker Mine,
and I have jurisdiction over the parties and subject matter of
this proceeding.
II
30 C.F.R. § 75.305 requires that a weekly examination be
made of at least one entry of each return air course in its
entirety.
In the case of Rushton Mining Company v. Secretary, 11
FMSHRC 1301 (1989}, I held that the standard does not mandate
that the air course be travelled in its entirety, but that it be

708

adequately examined in its entirety. In the same decision I held
that where an area in the air course is impassible, and it is not
possible to adequately examine the area visually, a violation of
the standard is established. In the present case an area in the
return air course extending 35 to 50 feet along the entry was
impassible. Further, it was not possible to sight across this
area, or to easily communicate from one side to the other. The
35 to 50 foot area of the air course could not be examined.
Therefore, I conclude that it was not possible to adequately
examine the entire air course.
'
I accept the Secretary's argument that the return air course
in the No. 1 Unit of the subject mine was a single entry. The
fact that a portion of that entry, designated by Pyro as entry
No. 6, was open and travelable does not meet the requirements of
the standard. Therefore since the return air course entry could
not be examined in its entirety, I conclude that a violation of
30 C.F.R. § 75.305 has been established.
The return air eourse was the return of an active unit, but
the faces were inactive and coal was not being produced when the
citation was issued. The air was travelling in its proper
course, and there was minimal methane in the area of the roof
fall. The Secretary has not established that there was a
reasonable likelihood that the hazard contributed to by the
violation will result in a serious injury. United States steel
Mining Company, 7 FMSHRC 1125 (1985). Therefore, the violation
was not properly designated as significant and substantial.
Nevertheless, because a mine examiner was unable to evaluate
the methane liberation, oxygen content, and roof hazards in the
entire air course, the violation was seriouso The Secretary
concedes that Pyro's negligence was lowo
Pyro did not abate the violation within the time provided in
the citation, so a section 104(b) order was issued. Although a
Petition for Modification had been prepared, it had not yet been
filed, and the inspector was not informed of it before issuing
the ordero An addendum to the ventilation plan ultimately was
approved changing the return air course and by-passing the areas
of the roof falls. This did not occur however until after the
order was issued. Pyro did not request an extension of time to
abate the citation. The time fixed for abatement was not
unreasonable. Therefore, the order was properly issued. See
Rushton Mining Company, 9 FMSHRC 325, 329 (1987). A request for
change in a ventilation requirement does not excuse a violation.
I conclude, considering the criteria in section llO(i) of
the Act, that an appropriate penalty for the violation is $500.
III

709

The approved ventilation plan for the Baker Mine provides
11
that:
overcasts, undercasts, and/or airlock doors shall be so
arranged that the passage of equipment along the entries will not
cause interruption of the air current. Doors, where doors are
installed, shall be in pairs to form an airlock."
(GX 9,
page 3). An Addendum to the plan was approved June 26, 1990, and
included a map showing the airlock doors (GX 10). The Mine
Safety Manager testified that between the date of the addendum
and the date of the citation, the airlock doors became
unnecessary and were not used because a new air shaft was
created. However, the inspector testified that when both doors
were opened, the quantity and velocity of air substantially
increased. In any case, there was a violation of the approved
ventilation plan, and therefore a violation of 30 C.F.R.
§ 75.316.

The Secretary has not established that there is a reasonable
likelihood that the hazard contributed to by the violation will
result in serious injury. SeaUnited States Steel Mining
Company, supra. Therefore, the violation was not properly
designated as significant and substantial.
I also conclude, on
the basis of the testimony of Mr. Dame, that it was not serious.
It was the result of Pyre's negligence.
It was promptly abated.
Considering the criteria in section llO(i) of the Act, I conclude
that an appropriate penalty for the violation is $100.
ORDER

Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
lo
Citation 3420048 and 3420049 issued July 16, 1990, are
MODIFIED to delete in each citation the finding that the
ation was significant and substantial and, as modified, the
citations are AFFIRMED.

2.

Order 340053 issued July 24, 1990, is AFFIRMED.

3. Pyro shall within 30 days of the date of this order pay
the following civil penalties to the Secretary:
CITATION

30 CFR

AMOUNT

3420048/3420053
3420049

75.305
75.316

$500
100

TOTAL
'

I /

_, 't'I

,
1

)

~-

J

.

(..~ I, '" F"
1-· I1-"\., .v•L·'-··
t-{; ' ' ,

; . .,'-:,.,

. , / : , '"'

$600

L

,

;

,, •

James A. Broderick
Administrative Law Judge

710

ADMINISTRATIVE LAW JUDGE ORDERS

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

22041

APR 4 l991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 91-65
A.C. No. 46-02249-03546
No. 7 Mine

HOBET MINING, INCORPORATED,
Respondent
DECISION ON MOTION TO REMAND
AND
CERTIFICATION OF INTERLOCUTORY
RULING TO THE COMMISSION
Before~

Judge Fauver

This action is a petition for assessment of civil penalties
under §§ 105(a) and llO(a) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et seg.
The Secretary seeks civil penalties for 11 citations. The
penalties proposed for four of them were determined under the
ivregular assessment 11 method of 30 C.F,R. § 100.3; the penalties
proposed for seven citations were determined under the "spec
assessment" method of 30 C.F.R. § 100.5.
Hobet Mining objects to the Secretary's application of the
"special assessment" method to the seven citations on the ground
that
includes an increase for an "excessive historyn of
violations based on a new policy, stated in Program Policy Letter
P90-111-4.
In its Motion to Remand, Hobet Mining contends the
policy letter
invalid and seeks to remand the seven proposals
to the Secretary 11 for recalculation of the proposed assessment
without reference to [the policy letter]. 11
In summary, Hobet Mining contends the policy letter is
invalid because:
(1)
The policy letter exceeds the scope of the
Court's remand order in Cole Employment Project v.
Dole, 889 F.2d 1127 (D.C. Cir. 1989).

711

(2)
It was unlawfully implemented without public
notice and comment as required by the Administrative
Procedure Act.
(3)
The "excessive history" proposed penalties
under the policy letter are unlawfully retroactive.
The Secretary contends that the Commission lacks jurisdiction to review the manner in which the Secretary proposes a
penalty and, in the alternative, if the policy letter is reviewable by the Commission, it should be held to be exempt from the
rulemaking requirements of the APA, consistent with the Court's
remand order, and otherwise lawful.
The Penalty Assessment Scheme
Under the Act, the Secretary proposes penalties for violations of the Act, but the Commission has exclusive jurisdiction
to assesses penalties. When the Secretary proposes an assessment, it becomes finaT if it is not contested.
If it is contested, the proposal goes before the Commission, which decides a
penalty de nova based on an evidentiary hearing.
Youghiogheny &
Ohio Coal Co., 9 FMSHRC 673, 678-79 (1987).
In proposing and
assessing penalties, the Secretary and the Commission, respectively, are guided by the six penalty criteria contained in
§ llO(i) of the Mine Act. 1
In proposing civil penalties, the
Secretary possesses "unchallenged broad discretion in devising an
effective penalty scheme." Coal Employment Project v. Dole,
889 F.2d 1127, 1133 (D.C. Cir. 1989).
As noted, one of the statutory criteria is the operatorus
"history of violations." The D.C. Circuitus decision in Coal
Employment Project figures prominently in the way in which the
Secretary may consider an operator's history of violations for
penalty purposes.
Prior to the Court's decision, the Secretary proposed a $20
civil penalty (called a u1 single penalty assessment") for all
1 Section llO(i) identifies the six criteria as:
"(1) the
operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator
charged, (3) 1 whether the operator was negligent, (4) the effect
upon the operator's ability to continue in business, (5) the
gravity of the violation, and (6) the demonstrated good faith of
the person charged in attempting to achieve rapid compliance
after notification of a violation."
(Emphasis added.)
Section
llO(i) also provides that "the Secretary may rely upon a summary
review of the information available to him and shall not be
required to make findings of fact concerning the [six] above
factors."

712

violations considered to be timely abated and not "significant
and substantial." 30 C.F.R. § 100.4. The Secretary's single
penalty assessment system exempted from an operator's history of
violations all $20 violations that were timely paid. 30 C.F.R.
§ 100.3(c).
See 47 Fed. Reg. 22,286. The Coal Employment
Project and the United Mine Workers of America challenged the
"single penalty assessment" system on the grounds (among others)
that assessments under § 100.4 did not give proper weight to the
history of violations criterion in the Act, and that, under the
regular assessment formula, paid single penalty violations were
improperly excluded from an operator's hist6ry.
The Court recognized the Secretary's "broad discretion" to
determine how she would propose penalties. However, it found it
unreasonable for the Secretary to fail to weigh the history of
violations in determining whether a violation qualifies for a
"single penalty" (i_.g. $20, non-S&S) assessment.
It also found
it unreasonable for the Secretary to fail to consider paid single
penalty violations as part of an operator's history in calculating regular proposed~assess:nients under 30 C.F.R. § 100.3(c).
Accordingly, the court remanded the case to the Secretary to
determine how "to ensure that MSHA does take account of past
single penalty violations in deciding whether a special assessment is required in a case where the violation itself might
qualify for another single penalty" and "to amend or establish
regulations, as necessary, that clarify how administration of the
single penalty standard will take account of the history of
violations of mandatory health and safety standards that do and
do not, pose significant and substantial threats to miners'
safety." 889 F.2d at 1138.
The Court's remand directed that, pending completion of
formal compliance with the remand, the Secretary take immediate
corrective measures to comply with its decision. The Court
stated~

In the interim, until MSHA formally complies with our
remand, we direct MSHA to instruct its field personnel
in assessing single penalties to consider an operator's
history of non-significant-and-substantial violations,
and to consider an operator's history of past single
penalty assessments when imposing regular assessments
against operators who commit a significant-andsubstantial violation after having committed a series
of non-significant-and-substantial violations.
889 F.2d at 1138 (emphasis added). The Court retained jurisdiction to consider the issues further after the Secretary complied
with its remand order. 2 Id.
2

As of this date, jurisdiction still lies with the Court.

713

In response to the Court's remand, on December 29, 1989, the
Secretary, through MSHA, published an interim final rule which
temporarily suspended the sentence in 30 C.F.R. § l00.3(c) that
excluded single penalty violations from an operator's history of
violations for regular penalty assessment purposes.
54 Fed. Reg. 53,609. In the interim final rule, MSHA also
revised its enforcement policies by instructing its personnel to
review non-S&S violations involving high negligence and an
excessive history of the same type of violation for possible
special assessment under § 100.5.
MSHA's interim final rule was challenged by the Coal
Employment Project and United Mine Workers of America on the
ground that it was not responsive to the Court's remand order.
In a per curiam opinion issued on April 12, 1990, the Court
agreed, stating that it was "primarily concerned 11 with MSHA's
"high negligence" requirement, and ordered the agency to devise a
11
suitable interim replacement" within 45 days.
on May 29, 1990, the Secretary responded to the Court's
April 12 order by issuing Program Policy letter No. P90-111-4,
which sets forth a new policy called 11 Increased Assessments for
Mines with Excessive History of Violations. 11 Through this
letter, the Secretary addressed the concern of the Court that the
"history of violations 11 criterion of § llO(i) of the Mine Act be
properly considered in determining whether a violation qualifies
for single penalty (i.g. $20, non-S&S) assessment.
P.P. Ltr. at
2. 3 She did this by providing for increased penalties for
non-S&S violations by operators found to have an "excessive
history" of violations, defined as either 16 or more penalty
points out of a possible 20 points in the preceding two-year
period, or 11 or more repeat violations of the same health or
safety standard in a preceding one-year period.
P.P. Ltr. at 1.
10
Non-S&S violations with excessive history are no longer eligible
for the single penalty assessment. MSHA has elected to waive the
single penalty (as provided in 30 CFR 100.[4]) in such cases and
assess penalties under the regular formula contained in 30 CFR
100.3." P.P. Ltr. at 2 (emphasis added). The policy letter also
states that 11 S&S violations with excessive history that previously would have received a regular formula assessment now
receive a special-history assessment" for which "MSHA has elected
to waive the regular formula assessment and assess them under the
special assessment provisions of 30 CFR 100.5. 11 Id. (emphasis
added) . The 11 special-history assessment 11 is based on the regular

3 The Secretary also addressed the concern of the Office of
Inspector General that "repeat violations" receive a higher
penalty assessment.
Id.

714

formula point system plus a percentage increase for excessive
history. 4
The Secretary served Program Policy Letter No. P90-lll-4
upon all mine operators, including Hobet Mining.
P.P. Ltr. at 3.
Subsequently, on December 28, 1990, MSHA published a proposed
rule, entitled "Criteria and Procedures for Proposed Assessment
of Civil Penalties," setting forth essentially the same provisions contained in Program Policy Letter No. P90-lll-4.
55 Fed. Reg. 53481 et seq.
The Issue of the Commission's Jurisdiction to
Order the Secretary to Re-propose Penalties
The Mine Act does not grant authority to the Commission to
determine the validity of the Secretary's rules or procedures for
proposing civil penalties.
Indeed, §§. 105(a) and (d), and llO(a)
and (i) of the Act indicate that the penalty proposal function is
within the exclusive domain of the Secretary, while the critical
penalty assessment frtnction is within the exclusive domain of the
Commission.
This plain reading of the Act is consistent with the
Commission's long-held view concerning the "separate roles of the
Secretary and the Commission under the Mine Act's bifurcated
penalty assessment scheme" by which, after a non-binding penalty
is proposed by the Secretary, the Commission conducts a de novo
evidentiary hearing in contested cases, and independently
assesses a penalty on the basis of the hearing evidence and the
statutory criteria, not on the penalty formulas in the
Secretary's regulations. Youghiogheny & Ohio Coal Co., 9 FMSHRC
673, 678-79 (1987).
Cf. UMWA v. Secretary, 5 FMSHRC 807 (1983)
(miners may not initiate Commission review of citations issued by
MSHA as there is no authorization under the Mine Act to do so),
=-==-v=, 725 F.2d 126 (D.C. Cir. 1983).
In Y&O, supra, the operator contended that in proposing
penalties the Secretary failed to comply with Part 100 of his
regulations, and moved a Commission judge to remand the matter to
the Secretary to re-propose a penalty in a manner consistent with
the Secretary's regulations.

4 MSHA has set forth a conversion table equating an operator's "Overall History Points" and "Number of Repeat [Violations]" to a percentage increase in the proposed penalty.
P.P.
Ltr. at 2.

715

The judge denied the motion, holding that:
The operator's attack on the MSHA's special
assessment procedures is without merit. The Commission
has repeatedly held that the procedures by which penalty assessments are proposed by the Secretary of Labor
are irrelevant and immaterial to a penalty assessment
by the Commission or its trial judges.
[8 FMSHRC at
13 4.]

The Commission affirmed the judge's denial of the motion to
remand after discussing principles that will govern its review of
objections to the Secretary's manner of proposing penalties. The
Commission held that, in light of its exclusive authority to
assess penalties de novo after an evidentiary hearing, "it
generally is neither required nor desirable to require the
Secretary to re-propose a penalty." 9 FMSHRC at 679.
"[O]nce a
hearing has been held, a determination by the Commission or one
of its judges that the Secretary failed to comply with Part 100
in proposing a penalty_ does not require affording the Secretary a
further opportunity to propose a penalty. Rather, in such
circumstances the appropriate course is for the Commission or its
judges
to assess an appropriate penalty based on the record."
Id.
However, before a hearing is held, the Commission stated,
"in certain limited circumstances the Commission may require tbe
Secretary to re-propose his penalties in a manner consistent with
his regulations." Id. Rather than a statutory authorization,
this limited review rests on the axiom that "an agency must
adhere to its own regulations." The scope of review in such
cases is narrowed by the Commission's holding that, when a
prehearing objection is raised as to the Secretary's manner of
proposing a penalty, uthe Secretary need only defend on the
ground that he did not arbitrarily proceed under a particular
provision of his penalty regulations" (9 FMSHRC 680).
The Commission's discussion of its scope of review of
objections to the Secretary 1 s manner of proposing penalties
similar to the 11 clean hands" doctrine in equity cases. A party
(the Secretary) seeking relief (a civil penalty) before the
Commission may first be required to comply with its own obligations (Part 100 of the Secretary's regulations) toward the
respondent. However, review by the Commission is limited to
prehearing objections and to a test of arbitrariness concerning
an alleged failure of the Secretary to comply with Part 100 of
the regulations.
In sum, the Commiss~on has not held that it has authority to
determine the validity of the Secretary's regulations or rules

716

for proposing civil penalties, but it has held that it has a
limited scope of review of objections that the Secretary has
failed to comply with Part 100 of her regulations in proposing a
penalty.
The instant case is distinguished from the Y&O case because
it does not involve a question of complying with Part 100 of the
Secretary's regulations. Those regulations, in the part contended to be relevant here, are under remand by a Court of
Appeals, which still has jurisdiction. The question which the
operator seeks to raise in this forum is whether Program Policy
Letter No. P90-111-4 is valid as being in compliance with the
Court's remand order and with the rulemaking requirements of the
APA.
I hold that such issues are for the courts, and lie outside
the jurisdiction of the Commission. The Commission's exclusive
authority to assess penalties de nova based on an evidentiary
hearing would render any defects in Program Policy Letter
P90-111-4 irrelevant and harmless in a case before the
Commission. Two other Commission judges have ruled on motions to
remand based on Pro~ram Policy Letter P90-lll-4, and reached
different results.
My conclusions differ from the holdings in
both those cases. The matter is plainly ripe for review by the
Commission.
ORDER
WHEREFORE IT IS ORDERED that the Motion to Remand is DENIED.
Under Rule 74(a) (1) of the Commission's Procedural Rules
(29 C.F.'R. § 2700.74(a)(l)), this interlocutory ruling is
CERTIFIED TO THE COMMISSION.

tJ;lA_~
~"*~
William Fauver
Administrative Law Judge

5 In one case, the judge held the policy letter to be
reviewable and found it invalid, thus granting the motion to
remand (Drummond Company, Inc., SE 90-126,
FMSHRC
(Judge Merlin, March 6, 1991). In the other, the judge held the
policy letter to be subject only to limited review -- on a test
of arbitrariness -- and found the operator did not meet this
standard for remand, thus denying the motion to remand (Utah
Power and Light Company, Mining Div., WEST 90-320, et al.,
FMSHRC
(Judge Lasher, March 19, 1991)).

717

Distribution:
Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Laura E. Beverage, Esq., Jackson & Kelly, 1600 Laidley Tower,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)
Mr. John B. Taylor, United Mine Workers of America,, Rt. 1,
Box 41, Danville, WV 25053 (Certified Mail)
/fb

718

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

APR 1. 51991
SECRETARY OF LABOR,
MINE SAFETY & HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

v.

Docket No. WEST 91-45
A.C. No. 42-00171-03604

Docket No. WEST 91-44
A.C. No. 42-00171-03602

.

CYPRUS-PLATEAU MINING
CORPORATION,
Respondent

Docket' No. WEST 91-46
A.C. No. 42-00171-03605
Docket No. WEST 91-91
A.C. No. 42-00171-03601
Docket No. WEST 91-118
A.C. No. 42-00171-03606

:

Star Point No. 2 Mine

ORDER OF REMAND

Before:

Judge Morris

Pending herein are the motions of Respondent Cyprus Plateau
Mining Company (Cyprus) to strike or in the alternative to remand
proposed penalties to the Secretary for recalculation.
BACKGROUND

lo On November 2lv 1989, the United States Court of Appeals, District of Columbia Circuit, issued its mandate in Coal
Employment Project, et al. v. Elizabeth Harford Dole, in he-r~
capacity as Secretary of Labor, United States Department of
Laborv 889 Fo2d 1127c
Petitioners therein asked the Court to rule on the validity
of the single penalty assessment provision ("single penalty">
authorized by regulations issued pursuant to the Federal Mine
Safety and Health Act of 1977 (the "Act">v 30 u.s.c. § 801 et
~ (1982)0
In its decision, the Court noted that a single penalty is a
$20 civil fine imposed on mine operators for violations that are
not serious and have been timely abated. If the single penalty
is promptly paid, it is excluded from an operator's violation
history for future penalty assessment purposes. The criteria and

719

procedures for proposed assessments of civil penalties were published and are now codified at 30 C.F.R. § 100, et ~ The single penalty assessment is contained in 3 C.F.R. § 100.4. 1 The
preceding section, 30 C.F.R. § 100.3, laying out guidelines for
taking into account the history of previous violations in regular
assessments, states, in part:
[V]iolations which receive a single penalty
assessment, under § 100.4 and are paid in a
timely manner will not be included in the computation [of history].
In its decision, the Court reviewed the statutory and regulatory background of the Act and observed that "the Secretary has
very broad discretion to devise a scheme implementing the Act's
civil penalty guidelines," 889 F.2d at 1129. The Court further
concluded "that Congress was intent on assuring that civil penalties provide an effective deterrent against all offenders, and
particularly against offenders,.with records of past violations.
Thus, despite the Secretary's unchallenged broad discretion in
devising an effective penalty scheme, the civil penalty regulations must not run contrary to that intent," 889 F.2d at 1127.
In its opinion, the Court further considered all the statutory criteria contained in Section llOCi) of the Act. It further
focused on two scenarios involving the impact of the single ·
penalty assessment, 889 F.2d at 1136, 1138.

The cited section provides as followsg
§

100.4

Determination of penalty~ single penalty
assessment.

An assessment of $20 may be imposed as the
civil penalty where the violation is not reasonably likely to result in a reasonably serious illness, and is abated within the time
set by the inspector. If the violation is
not abated within the time set by the inspector 0 the violation will not be eligible for
the $20 single penalty and will be processed
through either the regular assessment provision (§ 100.3) or special assessment provision (§ 100.5).

720

After reviewing the facts, the Court concluded it was not
able to determine from the record whether the manner in which the
single penalty is selected and administered is consistent with
the Mine Act. Accordingly, the Court remanded the record.
The Court, in fashioning a remedy, stated as follows:
The penalty scheme in 30 C.F.R. §§ 100.3(c),
100.4 does not appear to provide for consideration of the mine operator's violation record where that record consists of numerous
single penalty violations. Without ruling
on how MSHA should reconcile the language of
§ llO(i) of the Mine Act, 30 u.s.c. § 820(i),
with its proposed practices for taking account
of an operator's history of previous violations,
we remand the record in this case to MSHA Cl)
to resolve the· inconsistency between the MSHA
regulations as writ.ten and MSHA's written and
oral representations to the court, so as to ensure that MSHA does take account of past single
penalty violations in deciding whether a special
assessment is required in a case where the violation itself might qualify for another single
penalty; and (2) to amend or establish regulations as necessary, that clarify how administration of the single penalty standard will take
account of the history of violations of mandatory
health and safety standards that do and do not
pose significant and substantial threats to miners' safety. In the interim, until MSHA formally
complies with our remand, we direct MSHA to instruct its field personnel in assessing single
penalties to consider an operator's history of
non-significant-and-substantial violations, and
to consider an operator's history of past single
penalty assessments when imposing regular assessments against operators who commit a significant.and-substantial violation after having committed
a series of non-signif icant-amd-substantial violations. We will retain jurisdiction in this
case until the remand is complete. An order to
this effect is attached.
889 F.2d at 1138

721

The Court's order reads as follows:
ORDER

In accordance with the opinion issued this day
lo ment Pro'ect et al. v. Dole et
al., No.
- 708, it is hereby
ORDERED that the Mine Safety and Health Administration ("MSHA") resolve any inconsistency
in its regulations and policy statements so as
to ensure that the history of past single penalty assessments is considered in regular and
single penalty assessments pursuant to 30 C.F.R.
§§ 100-3, 100.4 and that MSHA amend or establish policies 8 as necessary, to ensure that
all penalties take account of an operator's
history of violations of mandatory standards
that do and do not pose significant and substantial thr~ats to miners's safety.
It is hereby
FURTHER ORDERED that until MSHA complies
formally with said remand, MSHA direct its
field personnel in assessing single penalties
for non-significant-and-substantial violations to take account of the past history on
the part of the mine operators of non-significant-and-substantial violations, and to take
into account past single penalty assessments
in imposing regular assessments against opera tors who have previously committed a series
of non-significant-and-substantial violations.
Consistent with Local Rule 15(c)y this
court retains jurisdiction over this case
until said proceedings are completed. MSHA
shall prompty transmit the record in this case
to this courto
2c
On December 29Q 1989, the Secretary responded to the
Coartvs decision by (1) temporarily revising its assessment poli-

cies to instruct its field personnel to review non-significantand-suostantial violations involving high negligence and an excessive history of the same type of violation for possible special assessment under 30 C.F.Ro § 100.51 and (2) temporarily suspending the sentence in 30 C~F.R. § 100.3(c) which excludes timely paid single penalty assessments from an operator's history of

722

violations for regular assessment purposes. Based on its publication in the Federal Register MSHA stated that 11 [t]herefore,
during the interim period, MSHA enforcement personnel will review
high negligence non-significant-and-substantial violations when
there is an excessive history of the same type of violation at
the mine for possible special assessment. Further, all violations that have been paid or finally adjudicated will be included
in history under the regular formula assessment.
MSHA further stated that in light of the specific instruction from the Court, MSHA must immediately comply with its orderv
and the Agency was compelled to take immediate action. Under
such circumstances, MSHA concluded it would, therefore, be impracticable to comply with the requirements of notice and comment
rule-making under Section 553 of the Administrative procedure Act
[A.P.A.Jr 5 u.s.c. § 553.
Further, under 5 u.s.c. § 553(b)(B)
MSHA was taking the action in the suspension notice. In addition, for good cause, based on these same reasons and pursuant to
5 u.s.c. § 553(d)(3) MSHA's action was excepted from the 30-day
delayed effective date requirement of the A.P.A.
MSHA further revised Part 100 by suspending the third
sentence in Part 100.3(c) effective December 29, 1989. Part
100o3(c), emphasizing the portion to be deleted, reads as
follows;
Cc)

History of previous violations.

History is based on the number of assessed
violations to a preceding 24-month period.
Only violations that have been paid or finally
judica
will be included in determining
history
However, violations which receive
a single penalty assessment under § 100.4 and
are paid in a timely manner will not be included in the computation. The history of previous violations may account for a maximum of
20 penal
points. For mine operators, the
penalty points will be calculated on the basis
of the average number of assessed violations
per inspection day (Table VI). For indepenent contractors, penalty points will be calculated on the basis of the average number of
violations assessed per year at all mines
(Table VII).
(Emphasis added).
MSHA 1 s publication amending Part 100 was entered in the
Federal Register Vol. 54 No. 249, December 29, 19890

723

3. On April 17, 1990, the United States Court of Appeals
filed a supplemental opinion in Coal Employment Project Dole.
The Court criticized the Secretary's regulations and noted that
MSHA's "high negligence" requirement in its interim regulation
runs contrary to the spirit of the original order.
The Court further observed that inasmuch as the issues have
not been fully briefed, it declined to fully resolve such issues.
4.
On May 29, 1990, MSHA issued a Program Policy Letter
("PPL"} No. P90-III-4. The program deals with the subject of
increased assessments for mines with excessive history of violations. The PPL under its terms was effective on May 29,
1990.
2
5.
In the period between April 23, 1990, and September 4,
1990, MSHA issued 18 citations against Cyprus. The proposed
penalties involve "significant and substantial" citations and
"non-signif icant-and-substan~ial" citations.
The penalties proposed against Cyprus for the "S&S" citations are as follows:
DOCI<ET NO.

CITATION NO.

DATE ISSUED

PROPOSED PENALTY

91-44

3583453

5-29-90

$216

91-45

3583497
3583500

5-15-90
5-21-90

$229
$216

91-46

3225820
3583465
3583467
3583487

4-23-90
4-25-90
4-26-90
5-10-90

$202
$292
$202
$216

Subseguentlyv on December 28, 1990, MSHA published a proposed rule, titled "Criteria and Procedures for Proposed
Assessment of Civil Penalties", essentially setting forth
the provisions contained in Program Policy Letter No.
P90-III-4.
55 Fed. Reg. 53481 et ~ However, it is
settled that comments after promulgation of penalty rules
did not cure any noncompliance with Section 553. Air
Transport Ass'n, ~00 F.2d at 379.

724

DOCKET NO.

CITATION NO.

DATE ISSUED

PROPOSED PENALTY

91-91

3583456
3 583458
3583460
3583635
3 583638
3583639

5-31-90
6-05-90
6-05-90
8-02-90
8-14-90
8-15-90

$333
$292
$216
$292
$292
$292

91-118

3583469
3583335

4-26-90
9-04-90

$202
$189

The penalties proposed for the non-S&S citations are as
follows~

DOCKET NOo

CITATION. NO.

DATE ISSUED

PROPOSED PENALTY

91-45

3583499

5-21-90

$136

91-91

3583632
3 583633

4-26-90
8-01-90

$126
$192

DISCUSSION
The Court 9 s directions to the Secretary in Coal Employment
Project have been previously set forth at length in this order.
The Court directed the Secretary to consider the operator's history of past single penalty (non S&S) assessments in computing
regular assessments; instead the Secretary has created an "excessive history 11 assessment which relies on both S&S and non S&S
violationso
The court further directed the Secretary to modify
its standard for assessing single penalties to accommodate a history of
olations~ instead the Secretary implemented an automatic blanket waiver of the single penalty whenever it finds an
•excessive history" of violations.
To the extent that the Secretary's actions purport to implement the Court's decision, the
Secretary has 9 to a large degree, exceeded the Court's mandate.
Accordinglyr it is inappropriate for the Secretary to rely on
such mandateo
The Secretary further contends the Commission lacks jurisdiction to order the Secretary to reassess a proposed civil penalty
It is argued that Sections 105Ca) and (d) and llO(a) and
(i) of the Act expressly establish that the penalty proposal
function is within the exclusive domain of the Secretary while
the critical penalty assessment function is within the exclusive
domain of the Commission.

725

However, in Youghiogheny Ohio Coal Company 9 FMSHRC 673
(April 1987) the argument was advanced that when the Secretary
fails to conform to his own regulations in proposing penalties,
the Commission must require him to re-propose a penalty in a
manner consistent with his regulations. The Commission ruled
"that the Commission's independent penalty assessment authority
under the Mine Act's bifurcated penalty assessment scheme serves
to provide the necessary and appropriate relief in the vast majority of instances where the Secretary fails to follow his penalty assessment regulations in proposing penalties. we further
hold, however 1 that in certain limited circumstances the Commission may require the Secretary to re-propose his penalties in a
manner consistent with his regulations. 11 9 FMSHRC at 679.
These limited circumstances appear to be present here when
the Secretary's proceedings under Part 100 is a legitimate concern to the mine operator and the Secretary 6 s departure from his
regulations can be proven by the operator. In such circumstances, "intercession by the-Commission at an early stage of the
litigation could seek-to secure Secretarial fidelity to his regulations and possible avoidance of full adversarial proceedings,"
9 FMSHRC at 680 ..
The main thrust by Cyprus alleges a lack of Secretarial
fidelity to his regulations. On the authority of Youghiogheny
Ohio Coal Co., the Secretary 1 s motion to dismiss for lack of
jurisdiction is denied.
The penalties proposed here were not computed on the basis
of the Secretaryus civil penalty regulations but on the basis of
a rule that MSHA implemented without public notice and comment as
:required by the Administrative Procedure Act ( "A.P.Ao ")
¢

The penalties proposed against Cyprus impose an excessive
history penaltyn based on an MSHA Policy Program Letter (PPL)
issued May 29, 1990e Under the PPL, two changes are made in
MSHA's civil penalty assessment scheme: (1) non-significant-andsubstantial ( non-S&S") violations with excessive history are no
longer eligible for single penalty assessment under 30 C.F.R.
100.4ff and instead are computed using the regular formula in 30
C.F.R. § 100.3; and (2) significant-and-substantial C"S&S") violations with excessive history that previously would have received a regular formula assessment now receive what MSHA calls
1
11
n special-history assessment.
The penalties are computed by
determining the regular assessment formula of 30 C.F.R. § 100.3
and then also adding on top of that a npercentage increase for
excessive history" which is added to the penalty amount based on
total points. MSHA promulgated this policy as an update to its
policy manual and did not publish it in the Federal Register.
91

91

726

MSHA's PPL excessive history policy is fatally defective in
that it violates the public rulemaking requirements of the
A.P.A. I 5 u.s.c. § 553(b).
Civil penalty rules fall within the requirements for notice
and comment. Air Transport Ass'n of America v. Dep't of Transportation 900 F.2d 369 CD.C. Cir. 1990). Yet MSHA 1 s PPL nullifies the applicability of the single penalty assessment, 30
C.F.R. § 100.4, to non-S&S violations with excessive history
"which are no longer eligible for the single penalty assessment. 0
Secondly, it creates a new type of asseasment called a "specialhistory assessment" consisting of a percentage increase of from
20 percent to 40 percent of the regular formula assessment. However, the regular formula already takes into account an operator's history of previous violations. Advance notice and comment
has been required in a similar situation. See Batterton v
shall, 648 F.2d 694 (D.C. Cir. 1980).
In addition to the foregoing defects, MSHA's policy of excessive history penalties is unlawfully retroactive. In the case
at bar nine citations were issued before May 29; one was issued
on May 29, and eight were issued after May 29. As previously
noted, the PPL was effective on May 290
The Supreme Court recently observed that the law does not
favor retroactivity. Further, statutes and administrative rules
will not be construed to have a retroactive effect unless their
language requires this result, Bomen v. Georgetown Univ. Hosp.,
109 s. ct. 468, 471 Cl988>.
Nothing in the Mine Act or in the Coal Employment Project
decision dictates the retroactive imposition of such penalties"
MSHA 0 s PPL adds considerably to the detriment an operator unknow~
ingly incurred when it chose not to contest earlier single penalty assessments and other violations. Thus, it cannot be applied retroactively. See New England Telephone and Telegraph Coo
v
u 826 Fo2d 1101, 1110 CD.C. Cir. 1987).
Cyprus finally argues that penalties proposed by
Secredo not comply with the regulations in 30 C.F.R. Part 100.,
pages 8-14}0
Inasmuch as these proposed penalties are to be remanded to
the Secretary for publication, comment and recalculation, where
necessary, the Secretary will no doubt have an opportunity to
consider these additional issues.

727

Cyprus has moved to strike or remand the proposed penalties
in these cases. Under Rule 12(f), F.R.C.P., an order striking
allegations may be proper.
However, such a motion would not
reach the crux of the issues presented here.
Accordingly, the
motion to strike is denied.
The alternative motion to remand should be granted.
Accordingly, for the foregoing reasons, I
following,

enter the

ORDER
1.

Respondent's motion to strike is DENIED.

2. Respondent's alternative MOTION TO REMAND is
GRANTED.

ris
ative Law Judge

Distributiong
Margaret Ao Milleru Esq. Office of the Solicitor, U.S. Department of Laborv 1585 Federal Office Building, 1961 Stout Street,
Denverv CO 80294
(Certified Mail)
R. Henry Moore, Esq., BUCHANAN INGERSOLL, P.C., CYPRUS PLATEAU
MINING CORPORATION, USX Tower, 57th Floor, 600 Grant Street,
Pittsburgh, PA 15219 (Certified Mail)

sh/ek

728

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

22041

APR Z6 1391
DISCRIMINATION PROCEEDING

MICHAEL E. HOLLAND,
Complainant

v.

Docket No. WEVA 90-315-D

HOPE CD 90-17

CONSOLIDATION COAL COMPANY,
Respondent

Amonate No. 31 Mine
ORDER

on September 26, -1990, Michael E. Holland (Complainant)
filed a Complaint alleging Consolidation Coal Company
(Respondent) discriminated against him in violation of
Section llO(c} ~f the Federal Mine Safety and Health Act of 1977
(The Mine Act). I
On March 19, 1991, Respondent filed a Motion for Summary
Decision alleging that the issues and claims raised by the
complaint herein, have been previously adjudicated by The West
Virginia Mine Board of Appeals (Board of Appeals) and resolved in
favor of Respondent. Respondent alleges that Complainant is
precluded from relitigating these issues on the grounds of
collateral estoppel and res judicata. On March 27, 1991,
Complainant
led his Statement in Opposition to Respondent's
Motion for Summary Judgment, and Respondent fled a Reply
Memorandum on March 29r 1991.
For
reasons that follow, I conclude that it has not been
established that either
judicata or collateral estoppel
applies to the decision
the Board of Appeals, so as to
preclude Complainant from proceeding with his claim under
Section 105(c) of the Act.
1;
Pursuant to notice, the case was scheduled for hearing
on February 5, 1991, in Charleston, West Virginia.
In a
telephone conference call on January 25, 1991, Counsel for
Complainant requested an adjournment of the hearing to allow him
adequate
to respond to Respondent's Request for Discovery.
Respondent did not object to this request, and the case was
rescheduled
March 19, 1991. Subsequently an Order was
entered granting Complainant's request for a continuance, and the
case was rescheduled for May 14-16, 1991.

729

I.

Res Judicata

In a statement filed with the Commission on September 26,
1990, Complainant alleged that he has been discriminated against
because Respondent forced him to wear metatarsal boots in spite
of the fact that he had a "legitimate waiver" not to wear them.
He indicated that Respondent "wouldn't let me work and not wear
the boots" He also indicated that Bob Wyatt took him out of the
mine because he is a Part 90 miner.
Respondent in its Memorandum in Support fer its Motion for
Summary Decision asserts that on June 7, 1990, Complainant filed
a "Discrimination Complaint" with the Board of Appeals. The
proceeding before the Board of Appeals was heard by three of its
members on November 18, 1990, and December 14, 1990. At the
hearing, the Complainant was represented by Counsel, and
according to Respondent's assertions, in its Memorandum, had the
opportunity to present witnesses, evidence, and to cross-examine
witnesses. Respondent also asserts that all testimony was taken
under oath and transcribed.
On January 24, 1991, the Board of Appeals entered a Decision
containing 24 enumerated findings of fact, as well as
5 enumerated conclusions of law. The Board of Appeals set forth
Complainant's allegations as follows:
"Mr. Holland alleges that
his status as a Part 90 miner is a protected activity under State
law and motivated Consol to impose the requirement that he wear
metatarsal protection, which he contends is discriminatory.
Additionally, Mr. Holland alleges that the requirement that he
wear metatarsal protection is an illegal act of discrimination
under W. Va. Code §22A-A-20, because it creates an unsafe or
hazardous condition to him.'' (Michael Holland v. Consolidation
~Qal Company, West Virginia Mine Safety Board of Appeals, Docket
Ne DIS 90-3, January 24, 1991, page 7, set forth in Respondent's
:tvJ.emorandumr Attachment D)
o

·rhe Board of Appeals set forth its Conclusions of Law as
follows:
25"
The Board of Appeals unanimously concludes, based
upon a review and consideration of the complete record
before it, that Michael Holland failed to establish the
existence of an unsafe or hazardous condition
sufficient tc support a claim of protected activity
under W. Va. Code §22A-1A-20.

26. The Board of Appeals unanimously concludes, based
upon a review and consideration of the complete record
before it, that Consol has done all that it can
reasonably be expected to do to assist Michael Holland
under the circumstances, and therefore, Michael

730

Holland's continued refusal to wear metatarsal
protection is unreasonable and lacks a good faith
foundation.
27. The Board of Appeals unanimously concludes, based
upon a review and consideration of the complete record
before it, that Mr. Holland's status as a Part 90 miner
did not motivate Consol in whole or in part, to engage
in discriminatory conduct.
28. The Board of Appeals unanimously concludes, based
upon a review and consideration of the complete record
before it, that the requirement that Mr. Holland wear
metatarsal protection is not an act of discrimination
under the w. Va. Code §22A-1A-20, but rather is
motivated solely by a legitimate business purpose to
comply with State law and the Amonate Mine work rule
requiring metatarsal protection, which have as their
goal the protection of miners from crushing foot
injuries.
29. The Board of Appeals concludes that as a matter of
law it is not an act of discrimination to require
employee compliance with State safety laws requiring
that metatarsal protection be worn by miners.
(Holland
v. Consolidation Coal company, Mine Safety Board of
Appeals, supra, at 8-9).
In analyzing whether the Decision of the Board of Appeals
precludes Complainant from litigating a Section 105(c) complaint
of discrimination before the Commission, the Commission in
Bradley v. Belva Coal.Company, 4 FMSHRC 982, at 986 (1981), held
that "Preclusion is an affirmative defense, and the Party
asserting it must prove all the elements necessary to establish
it"'~
In general 7 Respondent must thus establish r with regard to
its claim of res judicatar an identity
claims between the
action before the Board and the instant proceeding. For the
reasons set forth below, I conclude that Respondent has not met
burden of establishing an iden
of claims.
In Bradley, suora, an ultimate issue before the Commission
was whether a decision of the Board of Appeals denying a miner's
claim of discrimination under West Virginia law,
(W. Va. Code §22A-1A-20) precluded litiqation of a discrimination
claim under the Mine Act.- In Bradlev, supra, at 988, the
Commission indicated that in analyzing a discrimination action
brought under the West Virginia law compared to one arising under
the Mine Act., '' . . . we will examine both the facts and the
substantive legal protection afforded the miner under both
statutes."

731

It appears, based upon the statements of Complainant filed
with the Commission as his Complaint, that the gravamen of his
complaint is that he was discriminated against, in that
Respondent would not let him work without wearing boots for which
he had a waiver. Also, that he was discriminated against because
he was designated a Part 90 miner. Respondent, at page 12 of its
Memorandum, quoted testimony of the Complainant before the Board
of Appeals, in which he asserted somewhat the same claim.
However, the record before me does not contain the entire
transcript before the Board of Appeals, nor does it contain the
Complaint filed before the Board of Appeals, nor the specific
arguments made by Complainant or his counsel.
I thus can not
make a definite finding as to the exact claim or claims presented
to the Board of Appeals.
Further, it would appear that the legal basis for
Complainant's claim before the Commission is that his apparent
refusal to wear the boot constituted a "work refusal" 2 I
Although Section 105(c) of the Mine Act does not provide for the
right to refuse work, the Commission, in Pasual v. Consolidated
Coal company, 2 FMSHRC 2786 (i980), rev'd on evidentiary grounds,
663 F.2d 1211 (3rd Cir. 1981), and in Robinette v. United Castle
Coal Company, 3 FMSHRC 803 (1981), held that the legislative
history evidences Congress's intent for Section 105 to embrace
this right.
(See, Bradley, supra, at 998-989).
The Commission, in ~radley, supra, at 989 analyzed
Section 22A to lA-20 3 ; of the West Virginia Code as follows:
"In contrast, section 22-l-21(a) of the
West Virginia Code (n. 2 above), under which Bradley
brought his state action, provides in relevant part
that "No person shall discharge . . . by reason of the
fact that he believes or knows that such miner .
.!¥
It is not clear from the face of this provision whether
the State law would treat Bradley 1 s refusal to obey an
order as a protected "notification to an operator of a
danger." Belva has not demonstrated in any event that
West Virginia law confers a oeneral right to refuse
o

2;
See, Price v. Montery Coal Company, 12 FMSHRC, 1505
(1990) wherein the Commission held that a miner's refusal/failure
to comply with the Operator's metatarsal boots policy constituted
Q refus
to comply with a mandatory work rule, and hence was
properly treated by the trial judge as a work-refusal case.
3;
It appears that the provisions at issue presently set
forth in Section 22A-1A-20, were previously found at
West Virginia Code section 22-1-2l(a).

732

work.
(Belva has presented us with no other
substantive provisions of the State law.) Other than
the West Virginia Board decision in issue, Delva has
presented no West Virginia Board decisions (which, from
all that appears, are not officially published) nor any
other court decision interpreting the West Virginia
Act. Nor has Belva presented any legislative history
to explain the meaning of section 22-l-2l(a).
Similarly, Belva has not shown that West Virginia Law
affords a miner in a discrimination case the burden of
proof structure and analytical framework used to
resolve a Mine Act discrimination case."
This reasoning applies with equal force to the case at
bar. 4 I The Board of appeals found that the "cause of
4;
Decisions by the West Virginia Supreme Court cited by
Respondent in its Memorandum, at page 5, do not support the
proposition, as argued by Re~pondent, that under West Virginia
Code §22A-1A-20,"
. -. . the appropriate analyses to be made are
identical to those made under Section 105(c), 30 U.S.C.
§ 815(c)."
None of the cases cited dealt directly with the
issue, as to whether the protected activities set forth in
Section 22-l-2l(a), supra, encompass a refusal to work.
Specifically, these cases do not discuss whether refusal to obey
a work order constitutes a protected "notification to an operator
of a danger under Section 22A-1A-20, supra.
In Collins v. E1kay
Mining Company, 371 S.E. 2d 46 (1988), and Wiggins v.
Eastern
Associated Coal Corporation, 357 S.E. 2d 745 (1987), the Supreme
Court did not have to determine the scope of activities protected
in Section 22A-1A-20, ~upra, as the issues presented was whether
a miner may institute a discharge action in State Court without
first resorting to pursuing administrative remedies afforded by
Section 22A-1A-20, supra, and Section 105(c) of the Act, and
whether the State Legislature intended to make the remedies
provided for in Section 22A-1A-20, supra, exclusive. As such,
the footnote in Wiggins, supra, at 747, n.2, that in all relevant
aspects Section 22A-1A-20 (presently Section 22A-1A-20) and
Section 105(c) of the Act are the same in that they protect the
same activities, is clearly dictum, and not necessary to the
disposition of the issues before the court.
In Davis v. Kitt Energy, 365 F.2d 82 (1987) a safety
committeeman made a demand of the operator to withdraw workers
from the mine due to a safety hazard. The safety committeeman
was subsequently removed from the safety committee by the
operator on the ground that his withdrawal demand was arbitrary.
The Supreme Court held that the safety committeeman who
communicated a safety Violation, and thus enforced a right under
the collective bargaining agreement to demand withdrawal, is
entitled to the protection afforded by Section 22A-1A-20, supra,

733

Mr. Holland's complaint has not been documented as deriving from
the use of metatarsal protection."
(Holland v. Consolidation
Coal company, supra, finding 18). It also found that the
operator's refusal to permit Complainant to work without
metatarsal protection was not motivated in whole or in part by an
intent to discriminate against him because of his status as a
Part 90 miner.
In its Conclusions of Law, the Board of Appeals
concluded that Complainant "failed to establish the existence of
an unsafe or hazardous condition sufficient to support a claim of
protected activity under W. Va. Code §22A-1A-20."
(Holland, v.
Consolidation coal Company, supra, paragraph 25). The Board of
Appeals also concluded that Complainant's "continued refusal to
wear metatarsal protection is unreasonable and lacks a good faith
foundation."
{Holland v. Consolidation Coal Company, supra,
paragraph 26). Hence, it might be implied that the issue of
Complainant's claim of a reasonable work refusal was litigated
and considered by the Board of Appeals. However, the decision of
the Board of Appeals is conclusionary and does not contain a
discussion of the evidence in its records, nor does it make
resolutions of credibility of .~itnesses, or explain the
conclusions of law reached, or the findings of fact that it made.
Further, the decision does not specifically indicate that the
issue of the right to refuse work was litigated and that such a
right specifically exist in State law. The decision also does
not set forth the legal analysis and framework that it employed
in analyzing the work refusal issue. Nor does it set forth the
burden of proof it utilized and the legal analysis on the issue
of discrimination. 5 I
Also, although the Board apparently considered whether
Complainant's status as a Part 90 miner motivated Respondent to
\Footnote 4 continued)
when he is thereafter subject to discrimination by his employer"
In its Decision, the court indicated that the focal inquiry is
the reasonableness in reporting a safety violation and that this
standard is analogous to that fashioned by Courts' decisions
under the Federal Mine Safety Act of 1977, which has been
interpreted to permit a work refusal in an area believed to be
hazardous. Hence, no issue was presented to the Court as to
whether a work refusal is within the scope of activities
protected under Section 22A-1A-20, supra.
5;
As noted by the Commission in Bradley, supra, at 986,
quoting Montana v. United States, 440 U.S. 147, 164 n. 11 (1979),
an example of an exception to the applicability of preclusion
based on the decision of an administrative agency exists where
"there is reason to doubt the quality, extensiveness, or fairness
of procedures followed in prior litigation."

734

Mr. Holland's complaint has not been documented as deriving from
the use of metatarsal protection."
(Holland v. Consolidation
Coal Company, supra, finding 18).
It also found that the
operator's refusal to permit Complainant to work without
metatarsal protection was not motivated in whole or in part by an
intent to discriminate against him because of his status as a
Part 90 miner.
In its Conclusions
Law, the Board of Appeals
concluded that complainant "failed to establish the existence of
an unsafe or hazardous condition sufficient to support a claim of
protected activity under W. Va. Code §22A-1A-20."
(Holland, v.
Consolidation Coal Company, supra, paragraph 25). The Board of
Appeals also concluded that Complainant's "continued refusal to
wear metatarsal protection is unreasonable and lacks a good faith
foundation."
(Holland v. Consolidation Coal Company, supra,
paragraph 26).
Hence, it might be implied that the issue of
Complainant's claim of a reasonable work refusal was litigated
and considered by the Board of Appeals. However, the decision of
the Board of Appeals is conclusionary and does not contain a
discussion of the evidence in its records, nor does it make
resolutions of credibility of witnesses, or explain the
conclusions of law reached, or the findings of fact that it made.
Further, the decision does not specifically indicate that the
issue of the right to refuse work was litigated and that such a
right specifically
in State law. The decision also does
not set forth the legal analysis and framework that it employed
in analyzing the work refusal issue. Nor does it set forth the
burden of proof it utilized and the legal analysis on the issue
of discrimination. 5 I
Also, although the Board apparently considered whether
Complainant's status as a Part 90 miner motivated Respondent to
engage in discriminatory conduct, it would appear that this
is thereafter subject to discrimination by his employer.
Decision,
Court indicated that the focal
is
reasonableness
reporting a s
violation and that this
standard is analogous to that fashioned by courts' decisions
under the Federal Mine Safety Act of 1977; which has been
interpreted to permit a work refusal
an area believed to be
hazardouso
Hence, no issue was presented to the Court as to
work re
al is within the scope of activi
under Sec
22A-1A-20,
5;
As noted by the Commission
Bradley, supra, at 986,
quoting Montana v. United States, 440 U.S. 147, 164 n. 11 (1979),
an example of an exception to the applicability of
lusion
on the decision of an administrative agency exists where
is reason to doubt the qual
, extensiveness, or fairness
of procedures followed in prior 1
ion.Ii

735

analysis is ultra vires to the Board's authority. The plain
language of Section 22A-1A-20, supra, appears to limit protected
activities to notifying an operator of alleged violations or
danger.
Thus, on its face, status as a Part 90 miner is not
within the scope of protected activities recognized by
West Virginia Law.
I conclude that, considering all the
failed to establish that the claim before
identical to the instant claim before the
res judicata does not prevent Complainant
complaint before the Commission.

II.

above, Respondent has
the Board of Appeals is
Commission. Hence,
from litigating his

Collateral Estoppel

As set forth in Bradley, supra, at 990, ''The basic premise
for applying collateral estoppel is a showing that the precise
issues involved in the second action were actually and
necessarily decided in the first."
I conclude that Respondent
has not made such a showing.
As discussed above, I, infra,
has not been established
that the issues before the Commission were necessarily decided by
the Board of Appeals.
It has not been established that the issue
of a work refusal was necessary and relevant to the disposition
of the matter before the Board of Appeals.
Also, as stated
above, I, infra, the record does not establish the analysis and
burden of proof utilized by the Board of Appeals, and the
evidence it accepted and rejected.
As such the doctrine of
collateral estoppel is not available to preclude Complainant from
litigating before the Commission facts that were allegedly
litigated before the Board of Appeals.

For
1 the above reasons, the Motion for Summary Decision
made by Respondent is DENIED.

Avram Weisberger
Administrative Law Judge
(703) 756-6210
FAX (703) 756-6201

Distribution:
James W. McNeely, Esq., Michael F. Niggemyer, Esq., UMWA
District 29, P. o. Box 511, Beckley, WV 26801 (Certified Mail)
Laura E. Beverage, Esq., Jackson & Kelley, 1600 Laidley Tower,
P. O. Box 553, Charleston, WV 25322 (Certified Mail)
dcp
736

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

~PR 26 '99\

DISCRIMINATION PROCEEDING

MICHAEL E. HOLLAND,
Complainant

v.

Docket No. WEVA 90-315-D
HOPE CD 90-17

CONSOLIDATION COAL COMPANY,
Respondent

Amonate No. 31 Mine

ORDER
I. Motion to Compel
On December 28, 1990, Respondent served Petitioner with a
First Set of Interrogatories. On January 24, 1991, Respondent
filed a Motion to Compel Discovery. on March 7, 1991, an Order
was issued granting the Motion to Compel Discovery on the ground
that Complainant had not filed any opposition to the Motion. On
March 8, 1991, Complainant served Respondent with Answers to its
First Set of Interrogatories. On March 14, 1991, Respondent.
filed a Second Motion to Compel Answers to the First Set of
Interrogatories, requesting an order compelling Complainant to
an~wer completely and fully Interrogatories Nos. 3, 5 through 11,
13 I and 14. on April 2, 1991, Complainant filed his response
to the Motion.
·
Interrogatory No. 3
Interrogatory No. 3 provides as follow:
"Please provide the
names, address, telephone number, and identity of the present
employer of each and every person you expect may be called as an
expert witness at any hearing held in this matter. 11 Complainant
as a response stated as
llows:
"See response to Interrogatory
No, 2 above." Interrogatory No. 2 had requested the name,
address, employer, and current telephone number for each person

1;
In the first page of its Motion, Respondent indicated
that it sought to compel a response to interrogatory No. 12.
However, in setting forth those interrogatories for which there
is a Motion to Compel, Respondent set forth Interrogatory No. 12,·
but did not set forth any Motion to Compel a response to this
interrogatory.
In contrast, Respondent did set forth a Motion to
Compel a response to Interrogatory No. 13.

737

"
. . you intend to call as a witness at the hearing in this
matter." Complainant, in response thereto, had furnished
Respondent with a list of 22 persons.
In its response to Respondent's Motion, Complainant, in
essence, to the best of my understanding, argued that he made a
general referral to Interrogatory No. 2, because of the
uncertainty as to who might be called as an expert witness. The
Interrogatory does not seek a listing of those experts whom
Respondent, of certainty, intends to call as witnesses, but only
those he expects "may be called." Fed. R.CIV.P 26(b)(4)(A), in
essence, provides that a Party through interrogatories may
require identification of persons whom the other Party " . . .
expects to call as an expert witness at trial."
(Emphasis
added). Hence, Complainant shall be required to provide
Respondent, within 5 days of this Order, the id2ntity of each
person it expects to call as an expert witness. I
Interroaatory No. 5
Interrogatory No.-5 provides as follows:
"For those
witnesses listed in response to Interrogatory No. 3, please
provide a summary of the testimony each witness is expected to
render and the facts and circumstances upon which such expert's
testimony will be based, along with references to any
publications, documents, treatises or other written works the
expert is expected to rely upon in rendering any opinion."

2;
In a written statement dated March 28 1 1991,
Complainant's Counsel notified me that he 11 • " " will withdraw
from this case. 11 However, as of the date of this Order, counsel
has not withdrawn.
In this connection, included in Counsel's
statement to me of March 28, 1991, is the following:
"We do not,
however, feel comfortable formally withdrawing until resolution
of the pending Motion to Compel and the pending Motion for
Sanctions"" Hence, since Counsel is still representing
Complainant at this point, at least with regard to the instant
Motion, it has an obligation to respond to Respondent's Discovery
as ordered herein" Furthermore, should Counsel formally withdraw
from representing Complainant in this case, Complainant,
appearing pro se or substitute Counsel, will of necessity be
involved in the preparation of his case scheduled for hearing on
May 14-16, 1991. Further, the fact that Complainant's Counsel
"will withdraw," should not operate to defeat Respondent's right
to discovery by way of interrogatories upon a ?arty.
29 C.F.R.
§ 2700.57.
This rationale applies to all orders contained
herein.

738

In essence, Complainant's Counsel in his response, alleges
that he has not spoken to any physicians about the merits of
Complainant's claims, and that, "at the time of the responses,"
he did not know who would be an expert witness. Petitioner has
been ordered, infra, to identify those person that he "expect may
be called" as in expert witness. As to these persons,
Complainant shall, pursuant to Rule 2 6 ( b) ( 4 )(a) ( l) , supra,
provide their names to Respondent.
If Complainant has not
decided which expert witnesses, if any, will testify at the
hearing, then Complainant shall comply with·the request contained
in Interrogatory No. 5, when he makes such a decision, but not
later than 14 days prior to the date of the hearing. Failure by
Complainant to comply with this Order subjects it to possible
sanctions pursuant to Fed. Rul. Civ. P. 37(b)(2), upon a proper
Motion to be made by Respondent. Further, Complainant shall
fully comply with the request for divulgence of the circumstances
upon which the expert's testimony will be based, along with
references to written works the expert is expected to rely upon
in rendering his opinion, as these matters are within the scope
of Rule 26(4)(A)(i), supra, which·requires divulgence of a
summary of the grounds for each opinion of an expert witness.
Interrogatory No. 6
Interrogatory No. 6 provides as follows:
"Identify each and
every person(s), by name and address, who has been retained or
employed to participate in this litigation, or for hearing
preparation purposes in this matter, who is not expected to be
called to testify as an expert witness in any proceeding in this
matter." Complainant argues that the information is privileged
and protected under Fed. R. Civ.P. 26(b)(4)(B).
I am constrained to follow Ager v. Jane c. Stormont Hosoital
and Trainingr 622 F.2d 496, (10th Cir. 1980), wherein the Court
of Appeals held that a Party may not require the other Party to
compel discovery of the identity of a nonwitness expert retained
and specially employed in an anticipation of litigation in the
absence of 11 exceptional circumstances under which it
unpractical for the Party seeking discovery to obtain facts or
opinions on the same subject by other means."
(Ager, supra,
at 503). The Court further held, citing Hoover v. United States
Department of Interior, 611 F.2d. 1132, 1142, n.13 (5th Cir.
1980), that a Party seeking disclosure under Rule 26(b)(4)(b),
supra, "carries a heavy burden." Respondent asserts in this
connection that Complainant is solely and exclusively in control
of information relevant to the
sue of his medical condition and
that his response is the only way to obtain this information.
Hence, only Complainant and or his Counsel has knowledge of the

739

identity of an expert retained or specially employed. Hence,
exceptional circumstances have been found to exist and discovery
of the identity of these experts is required. Thus, Complainant
shall comply with all terms of Interrogatory No. 5.
Interrogatory No. 7
Interrogatory No. 7 requires as follows:
"Please identify
all documents that you intend to introduce as exhibits at the
hearing in this matter. For each such document, describe its
present location and custodian, and identify the person(s)
through whom you intend to introduce each document at any hearing
or deposition in this matter."
The request falls within Fed R. Civ. P. 26(b)(l) and hence,
a clear identification of the documents intended to be introduced
as exhibits is required, as well as the identity of the persons
through whom the document is to be introduced. Accordingly,
Complainant shall specifically comply with all the terms of this
interrogatory.
Interrogatory No. 8
Interrogatory No. 8 requires as follows:
"Describe with
specificity and in detail the facts and circumstances upon which
you rely in contending that Michael Holland engaged in protected
activity as defined under § lOS(c) of the Mine Act. In
responding, please identify:
a.

The names and addresses of each and every person
who will be called upon to provide testimony in
support of your position and summarize the
anticipated testimony of each such person; and

bo

Identify each and every document and/or piece of
evidence which is or will be relied upon to support
your position."

Complainant argues that Respondent did not seek discovery
within 60 days after the Complaint was filed, as is required by
29 C.F.R. § 277.SS(b).
The Complaint herein was filed on September 26, 1990, and
Respondent served a Request for Interrogatories on December 28,
1990.
In order to allow the Parties to prepare for trial and to
eliminate surprise, the rules of discovery should be broadly
applied (See, Hickman v. Taylor, 329 U.S. 495 (1947)).
Complainant has not alleged any legal harm as a result of the

740

late request for discovery.
Hence, the request in Interrogatory
No. 8 is to be complied with, as, in general, the material
requested falls within Rule 26(b)(l), supra.
It is further ORDERED that Complainant shall, within 5 days
of this Order, file with me, for an in camera inspection, all
material he claims as subject to either an informant's privilege,
or a work product privilege.
Interrogatory No. 9
Interrogatory No. 9 requests as follows:
"Describe with
specificity and in detail the adverse action or discrimination
you allege has occurred as a result of his alleged protected
activity under § 105(c) of the Mine Act.
In responding, please
identify:
a.

The names and addresses of each and every person who
will be called upon to provide testimony in support of
your position and summ~rize the anticipated testimony of
each such person; and

b.

Identify each and every document and/or piece of
evidence which is or will be relied upon to support your
position."

In its response, Complainant essentially referred to its
response with regard to Interrogatory No. 8. The request set
forth in Interrogatory No. 9 falls within the purview of
Rule 26(b), supra. Hence, Complainant shall comply in detail to
this interrogatory and within 5 days of this Order file with me,
for an in camera inspection, any material that he claims is
subject-"to the work product privilege or informant's privilege.
Interrogatory No. 10
Interrogatory No. 10 requests as follows:
"Describe in
detail and with specificity the facts upon which you rely in
contending
the adverse action or discrimination complained
of was motivated, in who
or in part, by alleged protected
activity under § 105(c) of the Mine Act.
In responding please
identify~

a.

The names and addresses of each and every person who
wi
be called upon to provide testimony in support of
your position and summarize the anticipated testimony of
each such person; and

b.

Identify each and every document and/or piece of
evidence which is or will be relied upon to support your
pos ion."

741

As a response, Complainant merely made reference to his
response to Interrogatory No. 8. My ruling with Interrogatory
No. 10 is the same as the ruling I made with Interrogatory No. 8
for the same reasons.
Interrogatory No. 11
Interrogatory No. 11 provides as follows:
"Explain in
detail the remedies sought by you in this § 105(c) proceeding.
If back pay is included in this request, please identify
specifically the time periods for which you claim back pay." As
a response, Complainant set forth the follow:
"If Respondent
will provide the work record at the time, Petitioner should be
willing to provide this information." The information sought by
this interrogatory is within the scope of Rule 26, supra, and
hence, it is ORDERED that Complainant shall answer and comply
with the interrogatory in full detail.
Interrogatory No. 13
Interrogatory No•.- 13 provides as follows:
"If you contend
that you have been subjected to discrimination and/or adverse
consequences prohibited under§ 105(c), list each date on which
such alleged discriminatory activity took place and identify the
persons other than you present or otherwise involved in the
alleged incident."
The information sought is within the scope of Rule 26, .
supra.
Complainant shall fully and specifically comply with this
request identifying specific dates of alleged discriminatory
activity and the specific identity of persons present when such
activity allegedly occurred. In complying with this request,
names of miners who are expected to testify shall not be
disclosed until 2 days prior to the hearing. Names of informants
who are miners shall not be disclosed.
Interrogatory No. 14
Interrogatory No. 14 alleges as follows~
"Do you contend
that it is hazardous or unsafe for you to wear metatarsal
protection? If your answer is in the affirmative, please
identify with specificity:
a.

Each and every fact upon which you rely in support of
this position;

b.

The name and address of each and every person who wi
be called upon to provide testimony in support of this
position and summarize the testimony of each such
person; and

742

c.

Each and every document and/or piece of physical
evidence which is or will be relied upon to support this
position. 11

The information sought is clearly within the purview of
Rule 26, supra, and hence, it is ORDERED that Complainant shall
comply fully with the request and shall identify persons with
information of the facts requested, shall summarize the testimony
of such persons and shall specifically identify the documents
that will be relied upon.
In complying with this Order,
Complainant shall not be required, until 2 ~ays prior to the
hearing, to disclose the names of miners who are expected to
testify, neither shall Complainant be required to disclose the
name of an informant who is a miner.
II. Motion for Sanctions
In a Motion filed on March 14, 1991, Respondent seeks an
order sanctioning Complainant's Counsel on the ground that he
violated Fed. R. Civ P. 11 by refusing to answer interrogatories
and by providing vagl,!e and unresponsive answers.
Clearly the
imposition of sanctions against an attorney is an extraordinary
remedy. The rules of the Commission, 29 C.F.R. § 2700 et ~ do
not provide any authority to sanction an attorney by ordering him
to pay the reasonable expenses another Party has incurred because
of a filing of a Motion that was responded to in a fashion in
violation of Rule 11, supra.
Ip Rushton Mining Company, 11 FMSHRC 759 (1989), the
Commission considered the question of whether the monetary
sanctions provided by Rule 11, supra, apply to Commission
proceedings.
In Rushton, supra, the operator had sought
reimbursement of its litigation expenses from the Secretary under
Rule 11, alleging that the Secretary engaged in the type of
litigation abuse covered by Rule 11, supra. The Commission held
that the Operator did not have a right under Rule 11, supra, to
reimbursement of its litigation expenses.
Respondent argues that Rushton, supra, dealt solely with the
issue of imposing monetary sanctions on the government, and
should not bar an injured Party from seeking Rule 11, supra,
sanctions against a private Party. For the reasons that follow,
I reject Respondent's argument.
In Rushton, supra, the Commission dealt solely with the
issue of whether Rule 11 should be applied by the Commission in
ordering sanctions against the Federal Government where it
allegedly violated Rule 11, supra. However, guidance may still
be found in the Commission's decision that is helpful in
resolving the issue herein, i.e., whether Rule 11 should be
applied in ordering sanctions against a private Party who
allegedly violated Rule 11. In this connection, I note, that at

743

the outset of its analysis, the Commission, in Rushton, supra, at
763, took cognizance of the fact that the operator therein was
seeking attorney's fees and costs against the government, not as
a prevailing Party, but as "alleged victim of litigation abuse,"
but "nevertheless" noted that " . • . we have strictly interpreted
the Act when determining whether such awards are due to
prevailing Parties." Further, the caution of the Commission in
providing relief in the form of an award of attorney's fees and
costs can be seen in its statement in Rushton, supra, at 764 with
regard to its underlining philosophy.
"Thus, as we have observed
in a number of analogous contexts, the absence of specific
statutory authorization for an asserted from of relief under the
Mine Act "dictates cautious review ••.. " Counsel of So. Mtns. v.
Martin County Coal Corp., 6 FMSHRC 206, 209 (February 1984),
aff'd, 751 F.2d 1418 (D.C. Cir. 1985). See also Kaiser Coal
Corp., 10 FMSHRC 1165, 1196-70 (September 1988)." Also, the
Commission in Rushton, supra, at 765, was clear to state that the
Federal Rules of Civil Procedure are not dictated by Commission
Rule l(b), (29 C.F.R. § 2700.l(b)) to be"
lexively applied on
procedural questions not regulated by the Mine Act,
Administrative Procedures Act, or our own procedural rules."
Hence, in the absence of clear authority in either the Mine Act,
Commission Rules, or Commission precedent, I am reluctant to
sanction complainant's Counsel and conclude that I do not have
c
authority to do same.
Further, even if Rule 11, supra, or Fed. R.Civ. P. 26(g),
supra, applies to the Commission's proceedings, the standards for
an award thereunder have not been met. In general, as noted by
the Commission in Ruston, supra, at 767 " . . • under Rule 11,
monetary sanctions may be imposed if a reasonable inquiry
discloses that a litigant's pleading or other paper is not well
grounded in fact? is not warranted in law, or has been interposed
for any improper purpose. Seer e.g., Westmoreland v. CBS Inc,
770 F.2d 1168, 1174-80 (D.C. Cir. 1985). 11
In general, it is the position of Respondent that
complainant's responses to the various interrogatories are
"irresponsive and evasive," demonstrate a lack of good faith, are
not well grounded in
or warranted by existing law, and are
obvious
intended to harass or cause unnecessary delay or
needless increase in cost in this litigation.
I conclude that if
responses to interrogatories are vague and incomplete a proper
remedy is a motion to compel, which has been made herein, but
that these deficiencies do not f
1 within the preview
those
actions deemed by Rules 11 and 26(g), supra, to provide a basis
for
imposition of sanctions.
Respondent, in its Motion, argues that the response of
Complainant to various interrogatories constitute the bas
for
the imposition of sanctions under Rule 11, supra. Each of these
are discussed below.

744

a. Interrogatory No. 3
Interrogatory No. 3 requested the identity of expert
witnesses whom Complainant intended to call. As a response,
Complainant referred to his response to a previous interrogatory,
in which he set forth the names of persons he indicated that he
might call as witnesses. Petitioner clearly has the obligation
to respond to this interrogatory in a complete fashion.
However,
the failure to do so, is not evidence of any improper purpose,
inasmuch as a complete list of witnesses were set forth in the
previous interrogatory.
b.

Interrogatory No. 5

Interrogatory No. 5 sought a summary of expected testimony
of expert witnesses. As a response, Complainant indicated that,
inasmuch as the request called for speculation as to what the
persons will testify to under oath, it was not complied with. He
also maintained the request was inconvenient, unduly burdensome
and unduly expensive.
Complainant clearly has the obligation to reply to this
interrogatory in detail as set forth above, I., infra in my
ruling on the Motion to Compel. However, failure to do so under
color of an argument that to comply would be inconvenient,
burdensome and expensive, does not, per se, establish any ground
for the imposition of sanctions.
c.

Interrogatory No. 7

Interrogatory No. 7 requested Complainant to identify
documents which he intends to introduce as exhibits at the
hearing, and to set forth the identity of the person thorough
whom Complainant intends to introduce the document.
Complainant 1 s response does not describe with specificity an
identification of the document intended to be introduced, nor
does it identify individual documents, nor the witnesses that
would be used to introduce these documents. As such the response
can be characterized as vague and unresponsive" Complainant has
been ordered above, I., infra, to fully comply with the
interrogatory. However, the vague nature of the response and the
failure to fully comply with the terms of the interrogatory does
not per se establish conduct that falls within the criteria set
forth in Rules 11 and 26(g) for the imposition of the sanctions.
d.

Interrogatory No. 8

Interrogatory No. 8 requested, in essence, the facts and
circumstances upon which Complainant relies in contending that he
was engaged in protected activities. Respondent asserts that
there was no good faith basis for Complainant's objection based
upon work product privilege.
I have ordered Complainant to

745

furnish, for an in camera inspection, any material alleged to be
subject to a work product privilege.
(See above, I., infra). As
such, I certainly can not find at this point, without having
examined the material in question, that any claim of a work
product privilege was not warranted in law.
Respondent also argues that Complainant's responses are
vague, incomplete, and do not identify particulars. These
defects are the subject of the Motion to Comply, and have been
dealt with above, I., infra, but do not fall within the preview
of activities causing liability for sanctions.
Respondent also refers to Complainant's refusal to identify
and summarize anticipated testimony of witnesses. Complainant
alleges that this request is burdensome and inconvenient. The
failure to respond to the request has been dealt with above,
I., infra, but Complainant's failure in this regard does not
justify the imposition of sanction.
e.

Interrogatory No. 9

Interrogatory No. 9 required Complainant to describe the
adverse action which he alleged, and to provide the identity of
witnesses and documents which are relied upon.
In essence,
Respondent argues that Complainant's· responses are vague,
evasive, and unresponsive. Respondent is correct in its
characterization of Complainant's response and this has been
dealt with above, I., infra, in m¥ ruling on the Motion to
·
Compel. However, providing a vague unspecific response is not an
activity set forth in either Rules 11 or 26(g), supra, which
provides a basis for the imposition of sanctions.
f o

Interrogatory No. 10

Interrogatory No. 10 required Complainant to detail the
facts relied upon in his allegation that adverse action was
motivated in whole or part by protected activities, to identify
the persons whose testimony will be offered in support of his
position, and to identify those documents that are relied upon.
Complainant did not provide any response other than stating as
follows:
"See answers No. 8 and No. 9." The lack of response
has been noted above, I., infra, in my ruling on the Motion to
Compel. However, failure to answer an interrogatory is not one
of the actions set forth in Rules 11 and 26(g), supra, to warrant
an imposition
sanction.
g.

Interrogatory No. 11

Interrogatory No. ~1 requested Complainant to explain in
detail the remedies sought and to identify specifically the time
period for which he claims back pay. Respondent argues that
Complainant's response that he was seeking all remedies provided

746

under Section 105(c) including back pay, constitutes a refusal to
provide the requested information. This issue has been dealt
with above, I., infra, in my ruling on the Motion to Compel.
However, although the response is vague and does not provide the
specificity requested, it does not fall within the scope of
actions set forth in Rules 11 and 26(g), supra, which constitute
a basis for the imposition of sanctions.
h.

Interrogatory No. 13
'

Interrogatory No. 13 requested Complainant to list dates on
which alleged discriminatory activity occurred, and to identify
the persons present or involved in the incidents. Complainant
responded that the discrimination occurred over a period of from
1988 to the presentu and indicated that those persons whom he
intends to call as witnesses are identified in the answer to a
previous interrogatory. In essence, Respondent argues that the
response, being vague, evasive, and unresponsive, is the basis
for sanctions. While the response is vague, unspecific and not
responsive, that issue has b~_en dealt with above, I., infra, in
my ruling on the Motion to Compel. However, the fact that the
response is vague and not responsive to the interrogatory, does
not form the basis for the imposition of sanctions as per
Rules 11 and 26(g), supra.
i.

Interrogatory No. 14

Interrogatory No. 14 requested Complainant to state the
facts relied on supporting his contention that it is either
hazardous or unsafe to wear metatarsal protection and to identity
the witnesses and documents, which will be offered in support of
his claim. Respondent, in essence, argues that Complainant's
response is vague and attempts were not made to identify the
information" Although the response is not specific and is not
responsive to the interrogatory, these issues are discussed
above, I., infra, in my ruling in the Motion to Compel. However,
I find that Complainant 1 s response does not fall within the
activities delineated in Rules 11 and 26(g), supra, as forming
basis for the imposition of sanctions"
Wherefore, taking into account all the above, it concluded
that Respondent's Motion for Sanctions is without merit, and is
DENIED

£ei~

Administrative Law Judge
(703) 756-6210
FAX (703) 756-6201

747

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

APR 30199t
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 91-43
A.C. No. 46-01453-03933
Humphrey No. 7 Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION GRANTING IN PART AND DENYING
IN PART MOTION TO APPROVE SETTLEMENT
Before:

Judge Fauver

The Secretary of Labor has moved for approval of a
settlement of three citations, under § llO(k) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
citation No. 3314307 charges a violation of 30 C.F.R.
75.515, alleging that the power cable on a permanent pump was
not properly entered into the junction box of the pump motor.
The inspector observed that insulated leads were exposed on the
outs
of the box. The settlement motion states that "the
hazard presented by the violation
that continued operation of
the pump might cause the insulated ·leads to rub against the
junction box resulting in the insulation failing and junction box
and pump motor becoming energized." The Secretary moves to
settle this charge by reducing the penalty and reducing the
citation from a "significant and substantial" violation to a
non-S&S violationi on the ground that "the Secretary does not
bel
that she can demonstrate, by a preponderance of the
evidence, a reasonable likelihood that the hazard contributed to
would result in an injury of a reasonably serious nature. 11
§

In a similar case involving a cable entering a pump, the
Commission affirmed a decision by a Commission judge holding that
the violation was significant and substantial.
Co., Inc., 7 FMSHRC 327 (1985). The judge found
the pump
vibrated and, in the absence of a bushing, the vibration could
cause a cut in the insulation. He accepted the testimony of the

748

inspector that the cut in the insulation could cause the pump to
become the ground and, if the circuit protection failed, anyone
touching the pump frame could be shocked or electrocuted. Based
on the evidence, the judge concluded that the violation was S&S.
5 FMSHRC 1788 (1983).
In reviewing the judge's holding, the Commission stated,
inter alia:
On review, U.S. Steel argues that the facts
indicated that the occurrence of the events necessary
to create the hazard, the cutting of the wires'
insulation and failure of the electrical safety
systems, are too remote and speculative for the hazard
to be reasonably likely to happen and, consequently,
that the judge erred in concluding that the violation
was significant and substantial.
We have held prev~9usly that a violation is
properly designated significant and substantial "if,
based on the particular facts surrounding that
violation, there exists a reasonable likelihood that
the hazard contributed to 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), we explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the
Secretary of Labor must prove:
(1) the
underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that
is, a measure of danger to safety-contributed to by the violation; (3) a
reasonable likelihood that the hazard
contributed to will result in an injury; and
(4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
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. See 6 FMSHRC at
1836.

749

Applying these principles to the instant case, we
affirm the judge's holding that the cited violation
properly was designated significant and substantial.
U.S. Steel's only witness did not deny that the missing
bushing could contribute to a shock hazard.
[Emphasis
added.]
Rather, because of the pump's circuit fuses
and its dual grounding system, he described the chance
of miners being shocked or electrocuted as "very
slight." Moreover, the inspector effectively testified
that if the cited condition were left uncorrected an
accident involving shock or electrocution was
"reasonably likely" to occur. The inspector's
statement that a person could serve as a better ground
than the frame ground itself if the insulation on the
wires was cut, was not refuted by U.S. Steel, and was
accepted by the judge. The fact that the insulation
was not cut at the time the violation was cited does
not negate the possibility that the violation could
result in the feared accident. As we have concluded
previously, a determination of the significant and
substantial nature of a violation must be made in the
context of continued normal mining operations.
[Emphasis added.] U.S. Steel Mining Co., 6 FMSHRC
1573, 1574 (July 1984). The administrative law judge
correctly considered such continued normal mining
operations. He noted that the pump vibrated when in
operation and that the vibration could cause a cut in
the power wires' insulation in the absence of a
protective bushing.
In view of the fact that the
vibration was constant and in view of the testimony of
the inspector that the insulation of the power wires
could be cut and that the cut could result in the pump
becoming the ground [emphasis added], we agree that in
the context of normal mining operations, an electrical
accident was reasonably likely to occur.
Accordingly, we conclude that substantial evidence
supports the judge's conclusion that the violation in
this case was properly designated significant and
substantial.
* * * [7 FMSHRC at 328-329.]
The Commission's affirmance of an S&S violation on the
evidence in U.S. Steel would indicate that the Commission's test
of an S&S violation is a practical and realistic question whether
the violation presents a substantial possibility of resulting in
injury or disease, not a requirement that the Secretary prove
that it is more probable than not that injury or disease will
result. Thus, vibration of the pump might cause the insulation
to wear down to bare wire, but if the missing bushing were
laced by the company beforehand, ~.g., in a periodic
examination, the wire would not become bare; and even if the
company's future examinations missed the violation, and the wire

750

became bare, this would not cause shock or electrocution if the
circuit breaker system functioned properly. The inspector's
opinion that injury was "reasonably likely" did not change the
scenario of possibilities into a combined probability that the
company would not detect the violation, the wire would become
bare, and the circuit breaker system would also fail to function.
A substantial possibility of injury, yes, but not a showing that
injury was more probable than not.
In sum, the logical basis for
the holding of an S&S violation was a scenario of a substantial
possibility that the violation could contribute to shock or
electrocution, not a scenario of probability that it was more
likely than not that such an accident would occur.
Inasmuch as the operative test in U.S.Steel is a substantial
possibility of injury, rather than proof that injury was more
probable than not, the Commission's use of the phrase "reasonably
likely to occur" or "reasonable likelihood" does not preclude an
S&S finding where only a substantial possibility of injury or
disease is shown by the evidence. This interpretation is
consistent with the statutory definition, which does not use the
phrase 11 reasonably likely to occur" or "reasonable likelihood" in
defining an S&S violation. Under the statute, an S&S violation
exists if "the violation is of such nature as could significantly
and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard" (§ 104(d) (1) of the Act;
emphasis added) .
The settlement motion does not state or show a factual.basis
for concluding that the alleged violation did not present a
substantial possibility of resulting in injury within the context
of continued normal mining operations.
Determination of that
issue will depend on a fuller presentation and evaluation of the
facts"
The settlement will therefore be rejected.
Citation No. 3314314 charges a violation of 30 C.F.R.
75.517, alleging that a trailing cable to a continuous miner
was not adequately insulated. The inspector observed that the
outer jacket of the cable had been damaged and taped but the tape
was worn, exposing the insulated leads.
The Secretary moves to
settle this citation by reducing the penalty and reducing the
sitation to a non-S&S violation, on the ground that the Secretary
ndoes not believe that she can demonstrate, by a preponderance of
the evidence, a reasonable likelihood that the hazard contributed
to would result in an injury of a reasonably serious
nature. • . . "
§

The settlement motion does not state or show a factual basis
for concluding that the alleged violation did not present a
substantial possibility of resulting in injury within the context
of continued normal mining operations.
For the reasons discussed
above, I find the motion to be insufficient as to this citation.

751

Citation No. 3314316 charges a violation of 30 C.F.R.
75.303(a), alleging that an adequate preshift examination was
not performed on part of the mainline track entry. The proposed
settlement is to pay the original proposed penalty without
changing the citation.
I have considered the documentation and
reasons for this proposal and find that the settlement is
consistent with the purposes of § llO(i) of the Act. The
settlement will therefore be approved as to this citation.
§

ORDER
1. The motion to approve settlement of Citation No. 3314307
and citation No. 3314314 is DENIED.
2. The motion to approve settlement of citation No. 3314316
is GRANTED.
3.
Respondent shall pay, _the approved penalty of $2 59 for
Citation No. 3314316 within 30 days of this decision.

~~ ::rM-Cv~

William Fauver
Administrative Law Judge

Distribution:
Page H. Jackson, Esq., Office of the Solicitor, U.S. Department
of Labor, Ballston Towers #3, 4015 Wilson Boulevard, Room 516,
Arlingtonp VA 22203 (Certified Mail)
Walter Jo Scheller 1 Esq", Consolidation Coal Company, Legal
Department, 1800 Washington Road, Pittsburgh, PA 15241
(Certified Mail)
Mro Basil Callen, United Mine Workers of America, (UMWA),
309 Wagner Road, Morgantown, WV 26505 (Certified Mail)
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