MARCH 1992
COMMISSION DECISIONS
09-24-92
03-25-92

Lang Brothers, Inc. (previously unpublished)
Waste Coal Management, Inc.

WEVA 90-48
KENT 91-75

Pg. 413

WEVA 91-1796
WEVA 92-179-D

Pg. 425
Pg. 430

CENT
WEVA 91-58
WEVA 91-166-R
WEVA 91-1801
WEST 92-243-DM

Pg. 431
Pg. 433
Pg. 436
Pg. 472
Pg. 473

WEVA 91-303
KENT 91-1231
WEVA 91-1600
WEVA 91-1601
PENN 91-1045
WEVA 91-228-R
WEVA 91-247-R
LAKE 91-119-M
WEVA 92- 729-R
PENN 88-309-R
LAKE 90-132-DM
VA
91-270-R

Pg.
Pg.
Pg.
Pg,
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.

495
496
499
502
505
506
513
518
520

No. 91-1
PENN 91-1456
No. 91-1
PENN 91-1375

Pg.
Pg.
Pg.
Pg.

523
526
529
532

Pg. 423

ADMINISTRATIVE LAW JUDGE DECISIONS
03-02-92
03-06-92
03-09-92
03-10-92
03-H0-92
03-10-92
03-11-92
03-11-92
03-18-92
03-19-92
03-19-92
03-20-92
03-24-92
03-24-92
03-26-92
03-26-92
03-30-92
03-31-92
03-31-92

Shrewsbury Coal Company
Sec. Labor on behalf of Peter D. Sprouse v.
P-F Mining, Inc., et al.
Chrisman Ready-Mix, Inc./Ozark Material Co.
Shell Energy Company, Inc.
Consolidation Coal Company
Charles E. Carpenter emp. by Island Creek Coal
Sec. Labor on behalf of Robert W. Buelke v.
Santa Fe Pacific Gold Corporation
Consolidation Coal Company
Peabody Coal Company
Consolidation Coal Company
Consolidation Coal Company
Consolidation Coal Company
Consolidation Coal Company
Consolidation Coal Company
Yerington Leasing Company
Eagle Nest, Inc.
Rochester & Pittsburgh Coal Co.
Clifford Meek v. Essroc Corporation
Harman Mining Company

Pg.

483
489
4%

ADMINISTRATIVE LAW JUDGE ORDERS
03-05-92
03-11-92
03-19-92
03-26-92

Contest of Respirable Dust Samples
Tunnelton Mining Company
Contest of Respirable Dust Samples
Consolidation Coal Company

MARCH 1992
Review was granted in the following cases during the month of March:
Lonnie D. Ross and Charles E. Gilbert v. Shamrock Coal Company, Docket
No. KENT 91-76-D and KENT 91-77-D. (Judge Fauver, February 28, 1992)
Secretary of Labor, MSHA v. Zeigler Coal Company, Docket No. LAKE 91-636.
(Judge Koutras, February 12, 1992)
Secretary of Labor, MSHA v. U.S. Steel Mining Co., Inc., Docket No.
WEVA 91-1607. (Judge Maurer~ February 12, 1992)
UMWA on behalf of Dan Nelson and others v. MSHA, John Weekly, et al.,
Docket No. SE 88-92-D, SE 88-23-D. (Judge Weisberger, February 14, 1992)
Larry E. Swift and others v. Consolidation Coal Co., Docket No.
PENN 91-1038-D.(Judge Melick, February 19, 1992)
Secretary of Labor, MSHA v. Ford Construction Company, Docket No.
WEST 90-346-M. (Judge Morris, February 16, 1992)
Review was denied in the following cases during the month of March:
Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No.
SE 91-93-M, etc. (Judge Koutras, January 23, 1992)
Secretary of Labor, MSHA v. Robert Shick employed by Muncie Sand and
Gravel, Inc., Docket No. LAKE 91-64-M. (Judge Fauver, February 18, 1992)

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

WASHINGTON, O.C.

20006

September 24, 1991

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

v.

Docket Nos. YEVA 90-48
YEVA 90-58

LANG BROTHERS, INC.

BEFORE:

Backley, Doyle, Holen and Nelson, Commissioners
DECISION

BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the wMine Act~ or
"Act"), we are asked to decide whether certain gas well cleaning and plugging
operations of Lang Brothers, Inc. ("Lang") were subject to the jurisdiction of
the Mine Act and whether, in performing these operations, Lang was an
independent contractor within the Act's definition of "operator." Commission
Administrative Law Judge James A: Broderick concluded that, on the facts of
this case, the gas well cleaning and plugging operations in question were
subject to the Mine Act and that Lang was an independent contractor-operator
under the Act. 12 FMSHRC 1690 (August 1990)(ALJ). For the reasons that
follow, we affirm the judge's decision.
I.

Factual and Procedural Background
The salient facts of this case are undisputed. Lang is a heavy
construction company, approximately half of whose business involves drilling
of new gas wells and the repairing of existing wells for gas companies. The
remainder involves the cleaning and plugging of gas wells for coal mine
operators.
The focus of this proceeding is on Lang's cleaning and plugging of two
gas wells located in.an area scheduled for d~velopment as part of the
Blacksville No. 2 Mine, a large underground coal mine owned and operated by
Consolidation Coal Company ("Consol"). Mining within 300 feet of an oil or
gas well is prohibited by 30 C.F.R. § 75.1700. 1 However, the Department of
1

Section 75.1700, which repeats section 317(a) of the Mine Act,
U.S.C. § 877(a), provides:
Oil and gas wells.

413

30

Labor's Mine Safety and Health Administration ("MSHA"), in a Decision and
Order dated July 18, 1980 ("Decision and Order"), granted Consol's petition
for modification, filed pursuant to section lOl(c) of the Mine Act, 30 U.S.C.
§ 8ll(c).
That Decision and Order released Consol from the 300-foot
requirement with respect to oil and gas wells in the Blacksville No. 2 Mine so
long as the wells were cleaned and plugged. The modification allowed Consol
to mine through the area of the wells on the condition that it clean the
wellbores and plug the wells from below the coal bed to the surface, as well
as meet various specific conditions for the plugging of the wells.
Consol contracted with Lang, an independent contractor, to clean and
plug the gas wells in its mines. The contract was on an annual basis and
renewable. Under the contract, Consol issued Lang a supplemental "purchase
order" for each gas well to be cleaned and plugged. Pursuant to the contract,
Lang obtained an operator's identification number from MSHA and was required
to provide the necessary mine safety training to its employees in order to
comply with the provisions of the Mine Act and applicable rules and
regulations.
The purpose of cleaning and plugging the gas wells is to ensure that
natural gas does not seep through the well into a mining area and create a
safety hazard. If a gas well was left unplugged or was improperly plugged,
gas could leak into an adjacent mine during the extraction of coal and result
in an underground ignition or explosion. After a well is closed by plugging,
it is no longer usable as a gas producer.
Typically, before Lang proceeds to do such work for Consol, Consol
obtains a plugging permit from the state and makes appropriate arrangements
with the affected surface landowner for access to the gas well. Lang builds
roads to gain access to the site, if necessary, sets up the drilling rig at
the surface site of the gas well, and moves the other necessary equipment,
such as a "mud pump," water tanks, and a bulldozer to the site. Lang then

[STATUTORY PROVISIONS]
Each operator of a coal mine shall take
reasonable measures to locate oil and gas wells
penetrating coalbeds or any underground area of a coal
mine. When located, such operator shall establish and
maintain barriers around such oil and gas wells in
accordance with State laws and regulations, except
that such barriers shall not be less than 300 feet in
diameter, unless the Secretary or his authorized
representative permits a lesser barrier consistent
with the applicable State laws and regulations where
such lesser barrier will be adequate to protect
against hazards from such wells to the miners in such
mine, or unless the Secretary or his authorized
representative requires a greater barrier where the
depth of the mine, other geologic conditions, or other
factors warrant such a greater barrier.

414

does the cleaning and plugging, performs reclamation activities at the site,
and removes its equipment. A gas well is cleaned out by removing the well
casing from the surface down to the gas production zone. Lang does not dig or
drill through the earth or the coal. Rather, Lang sends its tools down
through the existing well borehole and cleans out any debris. Lang takes out
whatever has fallen into the borehole such as caved-in earth, or debris.
Plugging involves filling the well borehole with expandable cement. Sec. Exh.
4.
In March 1989, Consol issued Lang a purchase order to reopen, clean out
and plug Well B2-233, located in the Pennsylvania area of the Blac~sville No.
2 Mine. Consol obtained a permit from the Commonwealth of Pennsylvania for
this work and Lang brought its equipment to the site. The well extended more
than 1,370 feet below the surface and passed through the mine's coal seam,
situated approximately 675 feet below the surface.
On March 20, 1989, MSHA inspector George Phillips went to the
Blacksville No. 2 Mine office and asked to see the contractorsQ register,
which the operator is required to maintain pursuant to 30 C.F.R. § 45.4.
Lang's name appeared on the register, and Inspector Phillips went to the area
in which Lang was cleaning Well B2-233. Phillips issued Lang a citation
charging a violation of 30 C.F.R. § 77.l710(i), because Lang's bulldozer did
not have seat belts. Phillips also concluded that the violation was of a
significant and substantial nature. There is no indication in the record as
to how far Consol's coal mining operation was from Well B2-233 at the time the
well was being cleaned and plugged.
In December 1989, pursuant· to another purchase order. Consol directed
Lang to clean out and plug another gas well located in the Pennsylvania area
of the Blacksville No. 2 Mine, Well B2-278. Consol obtained a state permit
for this work and Lang brought its equipment to the site and started work.
Well B2-278 extended more than 3,000 feet below the surface and passed through
the mine's coal seam, situated approximately 800 feet below the surface.
On December 4, 1989, while Lang was cleaning Well B2-278, Inspector
Phillips issued Lang three citations, one alleging a violation of 30 C.F.R.
§ 77.404(a) because of a defective cylinciei;-.pressure gauge; one alleging a
violation of 30 C.F.R. § 77.503 because of damaged insulation on a welder
cable; and one alleging a violation of 30 C.F.R. § 77.1110 because of a
defective fire extinguisher at the oil storage station. On December 12, 1989,
Phillips again inspected Well B2-278 and issued two more citations, one
alleging a violation of 30 C.F.R. § 77.404(a) because of two inoperative rear
lights on a bulldozer, and one alleging a violation of 30 C.F.R. § 77.410
because of a defective automatic warning device on a bulldozer. Phillips also
concluded that these violations were of a significant and substantial nature.
At the time the citations were issued, Consol was mining about 300 feet from
the well.
The Secretary subsequently proposed civil penalties for all of the
alleged violations and the matter proceeded to an evidentiary hearing before
Judge Broderick.
Before the judge, Lang argued that its operation was not
subject to the Mine Act. According to Lang, it was merely plugging wells

415

drilled for production of gas. Lang contended that it was not working at a
mine and asserted that it was not in any way involved in extraction of
minerals in nonliquid form but, rather, was engaged in a gas-related activity.
It also argued that it had no contact with Consol's miners. Lang submitted
that it was subject to the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (1988)(the "OSHAct"). Lang further argued that even if
its operation was subject to the Mine Act, it was not an "operator" within the
meaning of the Act. Lang conceded, however, that if it were deemed an
operator under the Mine Act, the cited violations occurred.
In his decision, Judge Broderick concluded· that Lang was an ~ndependent
contractor-operator under the Mine Act and was subject to the Mine Act's
jurisdiction. The judge gave special emphasis to the Commission's decisions
in Otis Elevator Company, 11 FMSHRC 1896 (October 1989) (nOtis I"), and Otis
Elevator Company, 11 FMSHRC 1918 (October 1989) ("Otis II"), in which the
Commission held that an independent contractor examining and maintaining
elevator equipment at underground coal mines was an operator under the Mine
Act. (The judge issued his decision before the Commission's Otis I and Otis
II decisions were affirmed by the United States Court of Appeals for the
District of Columbia Circuit. Otis Elevator Co. v, Secretary & FMSHRC, 921
F.2d 1285 (1990).) Applying the Commission's Otis test, the judge found:
The activities of Lang Brothers, in cleaning and
plugging the gas wells for Consol, constituted an
integral and important part of Consol's extraction
process. Consol was obliged to clean and plug the
wells in accordance with the modification petition in
order to mine through the area where the wells
penetrated the coal seam. If Consol did the work
itself, there could be no doubt that it was part of
the mining process.
12 FMSHRC at 1694. The judge also determined that Lang had a continuing
presence in mine-related work, since approximately SOX of its work involved
cleaning and plugging gas wells for coal mine operators. Id.
The judge also distinguished Old Dominion Power Co. v. Donovan, 772 F.2d
92 (4th Cir. 1985). He emphasized the high percentage of Lang's work done for
coal mines and noted:
Although Lang's employees were not in the mine itself,
they operated heavy equipment which penetrated the
mine atmosphere and directly and substantially
affected the extraction process. Most importantly,
their work was directly related to the safety of the
miners, since improper plugging of a gas well could
cause methane leaking into the mine as the extraction
of the coal progressed and could result in an
underground ignition or explosion.
12 FMSHRC at 1695. The judge concluded that Lang's contact with the mine was
neither infrequent nor de minimis.

416

The judge affirmed all of the citations and assessed civil penalties
totaling $234. 12 FMSHRC at 1695. The Commission granted Lang's subsequent
petition for discretionary review, which challenges only the judge's
jurisdictional rulings. On review, Lang asserts that the gas wells it cleans
and plugs are not mines, that it is not a mine operator, and that jurisdiction
over its activities is with the OSHAct, not the Mine Act.

II.
Disposition of Issues
A.

Whether the well sites and Lang's operations were subject
to the Mine Act

We begin with the question whether the well sites and Lang's operation
at the sites were subject to the Mine Act as part of a "coal or other mine" or
"coal mine" within the meaning of section 3(h) of the Act, 30 U.S.C. § 802(h).
Lang argues that the gas wells in question did not constitute a "coal or
other mine" under the Mine Act, Citing the definition of "coal or other mine"
in section 3(h)(l) of the Act, Lang argues that it was not involved in the
extraction of nonliquid minerals and that, insofar as "liquid" minerals are
concerned, the Act's definition applies only to "extract[ion] with workers
underground," a condition not present here. 2 Lang argues that its work
involved no contact with the coal bed other than passing through it via t~e
borehole, while going down to the gas producing strata. Lang adds that its
workers were not exposed to the hazards of mining and that they never came

2

Section 3(h)(l) states:
"coal or other mine" means (A) an area of land
from which minerals are extracted in nonliquid form
or, if in liquid form, are extracted with workers
underground, (B) private ways and roads appurtenant to
such area, and (C) lands, excavations, underground
passageways, shafts, slopes-, ·tunnels and workings,
structures, facilities, equipment, machines, tools, or
other property including impoundments, retention darns,
and tailings ponds, on the -surface or underground,
used in, or to be used in, or resulting from, the work
of extracting such minerals from their natural
deposits in nonliquid form, or if in liquid form, with
workers underground, or used in, or to be used in, the
milling of such minerals, or the work of preparing
coal or other minerals, and includes custom coal
preparation facilities ....

30 U.S.C. § 802(h)(l).
A similar definition of "coal mine" is contained in
section 3(h)(2) of the Mine Act.
30 U.S.C. § 802(h)(2).

417

into contact with any miners. In short, from Lang's perspective, its concern
was "the proper cleaning and plugging of a natural gas well, not with coal
mining." Lang Br. at 17.
As Lang acknowledges, the legislative history of the Mine Act makes
clear that a broad reading is to be given to the definition of a mine. The
Senate Committee stated:
The Committee notes that there may be a need to
resolve jurisdictional conflicts, but it is the
Committee's intention that what is considered to be a
mine and to be regulated under the Act be given the
broadest possibl[e] interpretation, and it is the
intent of this Committee that doubts be resolved in
favor of inclusion of a facility within the coverage
of the Act.
S. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 602
(1978). Judicial precedent also indicates that the Mine Act's definition of
mining is to be broadly interpreted in favor of coverage. See, ~. Donovan
v. Carolina Stalite Co., 734 F.2d 1547, 1551-55 (D.C. Cir. 1984); Marshall v.
Stoudt's Ferry Preparation Co., 602 F.2d 589, 592 (3rd Cir. 1979) cert.
denied, 444 U.S. 1015 (1980). While we recognize, as the D.C. Circuit Court
of Appeals in Carolina Stalite observed, "[i]t is clear that every company
whose business brings it into contact with minerals is not to be classified as
a mine within the meaning of section 3(h)" (734 F.2d at 1551), for the reasons
that follow we hold that Lang's activities, in this instance, are subject to
the Mine Act.
In reaching our decision, we focus on the relationship between Lang's
operations at the well sites and the extraction process at Consol's mine, to
determine whether there is a sufficient relationship between the activity in
question and the extraction process for statutory coverage to apply.
Precedent does not require that Lang itself be engaged in extraction. See
Carolina Stalite Co., 6 FMSHRC 2518, 2519 (November 1984).
Lang casts its activities as being concerned only with the proper
cleaning and plugging of gas wells. Lang's work at the well sites, however,
was integrally related to Consol's extraction of coal. Cf. Carolina Stalite,
734 F.2d at 1551. The sole purpose of Lang's cleaning and plugging contract
with Consol was to facilitate Consol's extraction of underground coal. If the
wells were not plugged, Consol would not be permitted, because of section
75.1700 supra, to mine within 300 feet of the wells. Plugging them permitted
Consol to extract more coal, since it could mine the affected coal instead of
having to stay at least 300 feet away from the gas wells.
Consol filed its petition for modification for the purpose of allowing
it to mine completely through the coal adjacent to oil and gas wells in the
vicinity of the Blacksville No. 2 Mine. MSHA's Decision and Order granting

418

the petition sets forth detailed conditions for plugging (including cleaning)
such wells. Consol contracted with Lang to do the work in compliance with the
MSHA-prescribed procedures. MSHA's Decision and Order also sets forth
procedures for Consol to follow when mining through a plugged oil or gas well
area in order to ensure the safety of the miners.
Lang's cleaning and plugging work directly affected the safety of
miners. Gas leaks into the mine could result in a fire or explosion. In
fact, Lang acknowledges that cleaning and plugging gas wells is "clearly part
of coal mine safety." PDR at 10; L. Br. at 13. Lang also acknowledged before
the judge, that plugging gas wells is "important to" and "directly .concerned
with mine safety." Tr. 12, 15. We agree with the judge that if Consol had
done the plugging work itself, there would be no serious question that the
work was part of the mining process.
Lang recognizes that "MSHA inspectors do and properly do come and
satisfy themselves that the wells are plugged in accordance with MSHA
regulations." Tr. 15, 122. Lang notifies MSHA when i t is ready to plug
wells. Tr. 59. MSHA oversees the cementing phase of plugging operations at
.such wells in accordance with the terms of its decisions granting petitions
for modification. Tr. 54, 59, 75-76, 122. Indeed, Lang concedes MSHA's
jurisdiction over its work of plugging gas wells. Tr. 122. In our view,
there is no reasonable basis for Lang's assertion that, while MSHA may
regulate well plugging, it may not regulate the other related steps involved
in such work, including setting up its operation to carry out these various
tasks.
We reject Lang's claim that its operation site is nothing more than "an
area of land from which minerals are extracted in liquid form" and thus not a
"mine" under section 3(h)(l) of the Act. This is not a case about the
extraction of minerals in liquid form. Rather, it is about the extraction of
coal and Lang's actions to facilitate its safe removal. Although section
3(h)(l) excludes from the statute's coverage some areas where "minerals are
extracted in ... liquid form," Lang does not argue that the wells in question
were producing gas at the time that it was working at the sites. Although the
record is not entirely clear as to whether the wells had been formally
abandoned prior to Lang's work, Consol's and Lang's intent certainly was to
ensure that the wells would no longer produce gas. Thus, we conclude that
Lang was not working in an area from which liquid minerals were being
extracted within the meaning of the statute.
Accordingly, Lang's operations were, as the judge found, "an
and important part of Consol's extraction process." 12 FMSHRC at 1694. Thus,
we conclude that the gas well sites and Lang's operations at those sites,
under the facts involved in this case, were subject to the coverage of the
Mine Act.
B.

Whether Lang is an operator under the Mine Act

Lang additionally argues that, in performing the services in question,
it was not an independent contractor operator within the meaning of the Mine
Act because its contact with Consol's mine was de minimis and unrelated to

419

coal extraction.

3

Section 3(d) of the Mine Act expanded the definition of "operator" under
the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq.
(1976)(amended 1977), to include "any independent contractor performing
services or construction at such mine." In its Otis decisions, the Commission
concluded that an independent contractor performing elevator maintenance and
repair operations at underground coal mines constituted an operator within the
meaning of the Act. Otis I, 11 FMSHRC at 1902; Otis II, 11 FMSHRC at 1923.
The Commission indicated, however, that "not all independent contractors are
operators under the Mine Act, and that 'there may be a point ... a.t which an
independent contractor's contact with a mine is so infrequent or de minimis
that it would be difficult to conclude that services were being performed.'"
Otis I, 11 FMSHRC at 1900-01, quoting Nat'l Indus. Sand Ass'n v. Marshall, 601
F:2d 689, 701 (3rd Cir. 1979). Citing Nat'l Indus. Sand Ass'n, supra, and Old
Dominion, supra, as proper authority for determining when an independent
contractor is an operator, Lang asserts that its contact with Consol's mine is
so infrequent and de minimis that it does not amount to the performance of
services. Further, in Lang's view, this activity does not amount to being
engaged in the extraction process for the benefit of the owner or lessee of
the property (in this case, Consol).
We conclude that the judge's determination that Lang was a statutory
operator is amply supported by the record. In cleaning and plugging the gas
wells, Lang performed services clearly related to the extraction process, at
what amounted to a surface work area of Consol's Blacksville No. 2 underground
coal mine. The overriding purpose of the plugging work was to ensure that gas
did not seep into the mine after Consol mined through the area. Lang's work
thus directly affected the safety of miners involved in the extraction of
coal.
Notwithstanding the relatively limited period -- seven to ten days -during which Lang provided services at the mine to clean and plug a well, we
conclude that the contact was not de minimis. An independent contractor's
presence at a mine may appropriately be measured by the significance of its
presence, as well as by the duration or frequency of its presence. The judge
found that Lang's operation "constitute[d}an integral and important part of
Consol's extraction process." 12 FMSHRC at 1694. Further, Lang had a
"blanket contract" with Consol to clean and plug gas wells under specific
purchase orders, and had plugged wells at different Consol mines since 1980 or
1981.

3

Section 3(d) of the Mine Act provides:
"operator" means an owner, lessee, or other person who
operates, controls, or supervises a coal or other mine
or any independent contractor performing services or
construction at such mine.

30 u.s.c. § 802(d).

420

Our holding today is consistent with Nat'l Indus. Sand, Old Dominion,
and the D.C. Circuit's
decision. Nat'l Indus. Sand involved the
Secretary of Labor's promulgation of training regulations. As relevant here,
the Third Circuit was addressing the Secretary's authority to "include fewer
than all independent contractors as operators for purposes of the training
regulations." 601 F.2d at 701. The Court noted that "[t]here may be a point,
at least, at which an individual contractor's contact with a mine is so
infrequent or
minimis, that it would be difficult to conclude that services
were being performed."
(Emphasis added).
The Third Circuit viewed
minimis contact as a ~evel at which it would be difficult to conclude that
services were being performed, and noted that Congress intended to, include
those engaged in the extraction process for the benefit of the owner or
lessee. 601 F.2d at 701-03.
, Lang is performing services for the
benefit of Consol as part of the extraction process. Indeed, the services are
so critical that without them Consol would be prohibited from extracting coal
in these areas.
In Old Dominion, the Fourth Circuit adopted the
analysis of the Third Circuit, and concluded that the appropriate analysis is
whether the independent contractor substantially participates in mining
activities.
772 F.2d at 97. Since the Fourth Circuit found that Old Dominion
Power Company's wonly contact with the mine is the inspection, maintenance,
and monthly reading of a meter for the purpose of
a bill to a mine
company for the sale of electricity,n there was not, in the Court's view,
substantial participation in mining activities. 772 F.2d at 96.
In its opinion affirming the Commission's Otis decisions, the D.C.
Circuit held that section 3(d) of the Act "does not extend only to
'independent contractor[s] performing services ... at [a] mine'; by its terms
it extends to 'any independent contractor performing services ... at {a]
mine.'" Otis, 921 F.2d at 1290 (emphasis in original). However, the court
expressly noted that its decision did not address "whether there is any point
at which an independent contractor's contact with a mine is so infrequent or
.de minimis that it would be difficult to conclude that services were being
performed.'" 921 F.2d at 1290 n.3 (citation omitted).
For the reasons set forth above, we conclude that substantial evidence
and applicable legal principles support tb.e' judge's determination that, in
performing the services in question, Lang was an independent contractoroperator within the meaning of the Act.

c.
Occupational Safety and Health Act
Reasserting its earlier argument concerning the Mine Act's section 3(h)
"liquid/nonliquid" distinction, Lang argues that oil and gas drilling are not
subject to the Mine Act. Lang states that its operations here are no
different, from a health and
standpoint, than are other oil and gas
drilling operations. Lang. Br. at 16-18. While Lang acknowledges that
section 4(b)(l) of the OSHAct precludes Occupational Safety and Health
Administration ("OSHA") jurisdiction if another agency exercises statutory
authority, it maintains that there is no Mine Act s
authority in this

421

instance.
We reject Lang's argument that its activity is properly regulated under
the OSHAct. Coverage under the OSHAct is exempted pursuant to section 4(b)(l)
of the OSHAct, 29 U.S.C. § 653(b)(l), which states in pertinent part:
Nothing in this chapter shall apply to working
conditions of employees with respect to which other
Federal agencies ... exercise statutory authority to
prescribe or enforce standards or regulations
affecting occupational safety or health.
As set forth earlier in this decision, we have determined that Lang's
Consol-related operations fall within the section 3{h) definition of wcoal or
other mine" and that, with respect to these activities, Lang comes within the
ambit of the term "operator" under section 3(d). Further, we also note that,
in this instance, MSHA has exercised statutory authority to prescribe and
enforce "standards or regulations" affecting the operation in question.
MSHA's Decision and Order created, in effect, a new safety standard dealing
with the cleaning and plugging of gas wells involving Consol's mine. Under 30
C.F.R. § 44.4(c), an operator must comply with the conditions in an order
granting a petition for modification, and the violation of such conditions is
equivalent to a violation of any other safety standard. See also Int. U.,
UMWA v. FMSHRC, 931 F.2d 908, 909 (D.C. Cir. 1991).
III.

affirm::; :Zi/tt

·conclusion
On the foregoing bases, we

,(krd

V. Backley,

~-

Arlene Holen, Commissioner

~fix~

L. Clair Nelson, Commissioner

4

Chairman Ford did not participate in the consideration or disposition
of this matter.

422

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

March 25, 1992

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 91-75

v.
WASTE COAL MANAGEMENT, INC.
BEFORE:

Ford, Chairman; Backley, Doyle, Holen, and Nelson, Commissioners
ORDER

BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Ac~
of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"), Commission Chief
Administrative Law Judge Paul Merlin issued an Order of Default on June 20,
1991, finding respondent Waste Coal Management, Inc ("Waste Coal") in default
for failure to answer the civil penalty petition filed by the Secretary of
Labor and the judge's Order to Show Cause. The judge assessed civil penalties
of $273 as proposed by the Secretary. For the reasons that follow, we vacate
the Order of Default and remand this case for further proceedings.
On March 9, 1992, the Commission received a letter dated February 29,
1992, addressed to Judge Merlin, in which the president of Waste Coal requests
the judge to dismiss the Secretary of Labor's Motion for Default Judgment.
Apparently, neither the Secretary nor Waste Coal is aware that Judge Merlin,
had held Waste Coal in default and had ord~~ed it to pay the Secretary's
proposed penalties by order dated June 20, 1991. Counsel for the Secretary
filed the Motion for Default Judgment on November 19, 1991, and advised the
president of Waste Coal, by letter dated February 11, 1992, that the motion
had not been ruled upon by the judge. The Commission's records indicate that
the judge's Order of Default was sent to the parties by certified mail.
The
Postal Service never returned the return receipt cards to the Commission,
however, suggesting that the orders may not have been received.
The judge's jurisdiction over this case terminated on June 20, 1991,
when his Order of Default was issued. 29 C.F.R. § 2700.65(c). Under the Mine
Act and the Commission's procedural rules, relief from a judge's decision may
be sought by filing a petition for discretionary review with the Commission
within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). Waste Coal did not file a timely petition for discretionary
review within the 30-day period, nor did the Commission direct review on its
own motion. 30 U.S.C. § 823(d)(2)(B). Thus, the judge's order became a final
decision of the Commission 40 days after its issuance. 30 U.S.C. § 823(d)(l).

423

Under the circumstances of this case, we deem the February 29 letter to
be a request for relief from a final Commission decision and to incorporate a
late-filed petition for discretionary review. See J.R. Thompson. Inc., 12
FMSHRC 1194, 1195-96 (June 1990). Relief from a final judgment is available
to a movant under Fed. R. Civ. P. 60(b)(l) on the basis of mistake,
inadvertence, surprise or excusable neglect. See,~. Lloyd Logging. Inc.,
13 FMSHRC 781, 782 (May 1991). It appears from the record that Waste Coal
filed a "Blue Card" request for a hearing in response to the Secretary's
initial notification of proposed penalties and offered to settle this matter
for $125 at that time. It further appears that Waste Coal is proceeding
without benefit of counsel. We are unable on th~ basis of the present record
to evaluate whether Waste Coal has offered a cognizable explanation for its
failure to respond to the judge's show cause order. Consequently, in the
interest of justice, we will permit Waste Coal to present its position to the
judge, who shall determine whether final relief from default is appropriate.
See,~. Blue Circle Atlantic. Inc., 11 FMSHRC 2144, 2145 (November 1989),
Accordingly, we grant Waste Coal's petition for discretionary review,
vacate the judge's default order, and remand this matter for proceedings
consistent with this order.

Richard V. Backley, Commissioner

~tr-::::1.l!c:...~
L. Clair Nelson, Commissioner
Distribution:
William H. Crandall, President
Waste Coal Management, Inc.
Box 590092
Birmingham, AL 35259
Joseph Luckett, Esq.
Office of the Solicitor
2002 Richard Jones Rd.
Nashville, TN 37215
Chief ALJ Paul Meriin
Federal Mine Safety & Health Rev. Connn.
Washington, D.C. 20006
424

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE. 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

MAR 21992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 91-1796
A.C. No. 46-03300-03520
VC #8 Central Shop

SHREWSBURY COAL COMPANYu
Respondent
DECISION
Appearances:

Pamela S. Silvermanv Esq. 7 Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for the Petitioner;
David J. Hardy, Esq., Jackson & Kelly, Charleston,
West Virginia, for the Respondent.

Before:

Judge Melick

This case is before me pursuant to section lOS(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq., the "Act," to challenge Citation No. 3482538, issued by
the Secretary of Labor under section 104(d)(l) of the Act for an
alleged violati~n of the regulatory standard at 30 C.F.R.
§ 77.1607(bb).
The general issue before me is whether the
1 ; Section 104(d)(l) of the Act provides as follows:
"If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standard, and
if he also finds that 1 while the conditions created by such
violation do not cause imminent danger, such violation is of such
nature as could significant and substantially contribute to the
cause and effect of a coal or other mien safety or health hazard,
and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation
given to the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine within
90 days after the issuance of such cbtation, an authorized
representative of the Secretary finds another violation of any
mandatory health or safety standard and finds such violation to
be also caused by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring the operator

425

section 104(d)(l) citation against Shrewsbury Coal Company
(Shrewsbury) is valid and, if so, what is the appropriate civil
penalty.
Citation No. 3482538 charges as follows:
A positive audible or visible warning system was
not installed and operated to warn persons that the
conveyor would be started at the mine when the No. 9
overland belt was started by a person located more than
a mile away who could not see the entire length of this
conveyor. It was reasonable to expect a person could
be working on this belt and get injured when the belt
started up without warning because the breaker could
not be locked out and the belt gobbed off once during
this shift and the guards were off
The foreman, John
Hudnall, was in a building (door open) located approx.
50 feet from the tail of the belt and approx. 5-7 feet
from the belt. When asked why alarms were not on the
belt he said they were stolen when the belt was idle in
the past. The belt was put back into active service
about July, 1990 according to Hudnall.
o

The cited standard, 30 C.F.R. § 77.1607(dd), provides in
part that "[w]hen the entire length of the conveyor is not
visible from the starting switch, a positive audible or visible
warning system shall be installed and operated to warn persons
that the conveyor will be started."
Shrewsbury does not deny the violation but maintains that
the violation was neither "significant and substantial" nor the
result of its "unwarrantable failure." According to experienced
Coal Mine Inspector Sherman Slaughter, during the course of a
regular inspection at the subject mine on January 15, 1991, he
was inside foreman John Hudnall's office next to the No. 9
overland belt when the belt went down. He noted that no alarm
sounded when the belt resumed operatiqn. According to Slaughter,
Hudnall explained that the belt alarm had been stolen sometime
before July 1990, and had not since been replaced. During his
inspection Slaughter noted that the No. 9 belt started and
stopped more than 10 times. From his experience he opined that
the belts would frequently shut down during the course of a
shift. Slaughter also observed that two beltmen worked on each
fn. 1 (continued)
to cause all persons in the area affected by such violation,
except those persons referred to in subsection (c) to be
withdrawn from,a nd to be prohibited from entering, such area
until an authorized representative of the Secretary determines
that such violation has been abated."

426

shift and were responsible for all 19 belts. Slaughter found the
violation to be "significant and substantial" based on his
knowledge of the frequency and seriousness of injuries and
accidents that have occurred in the past by belts starting
without warning. In reaching this conclusion he also considered
that at the time of this citation some rollers were left
unguarded, that there were no lights along the belt and that it
was necessary to cleanup gob along the belt. He also noted that
neither the No. 9 belt nor the door to the breaker box could be
locked out at that time. Slaughter opined that as a result of
the violation persons could become caught in the belt and lose
limbs and bleed to death. He pointed out that an accident had
previously occurred at this particular plant and a worker lost a
limb as a result of contact with a conveyor belt. Slaughter
testified that he had seen the belts running at this operation
without guards and on this same date had issued approximately 20
violations for missing guards.
In evaluating whether a violation is "significant and
substantial" the Commission in Mathies Coal Co., 6 FMSHRC 1
(1984), explained as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard
-- that is, a measure of danger to safety-contributed
to by the violation; (3) a reasonable likelihood that
the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further... that the third element
of the Mathies formula " requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(l),
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation. Secretary of Labor v. Texasgulf,

427

Inc., 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal Company,
9 FMSHRC 1007 (1987).
The third element of the formula requires that the Secretary
establish "a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury" and that the
likelihood of injury must be evaluated in terms of continued
normal mining operations. U.S. Steel Mining co., 6 FMSHRC 1573
(1984); Monterey Coal Co., 7 FMSHRC 996 (1985). The time frame
for determining if a reasonable likelihood exists includes the
time that a violative condition existed or would have existed if
normal mining operations continued. Rushton Mining Co.,
11 FMSHRC 1432 (1989)0
Clearly the facts of this case warrant 11 signif icant and
substantial" findings. The circumstances herein were
particularly aggravated since at the time of the violation,
miners were in the act of shovelling coal adjacent to unguarded
rollers on the cited beltline, that the belt had not been locked
out to prevent movement, and that there was no audible or visible
system in place to warn these miners when the belt would commence
indeed reasonably
movemento Under the circumstances 1 it
likely that these miners could become entangled
the
unprotected rollers upon a sudden belt start-up and suffer severe
injur,ies including .loss of limbs and/or death. From the
significant number of guarding violations also issued that same
day, and the fact that the alarm system had been absent for a
significant period of time, it is apparent that, under normal
continued mining operations, the hazard would have continued
unabated.
It is also clear that the violation was the result of
"unwarrantable failure." In reaching this conclusion I have not
disregarded the testimony of John White, Corporate Manager of
Maintenance and Environment for the Shrewsbury parent company,
that a previously stolen alarm on the No. 9 belt had been
replaced in May 1990. This testimony,is, however, immaterial.
Inspector Slaughter testified credibly that Hudnall told him at
the time he issued the citation that the alarm had been stolen
during the previous shutdown and that the belts had been
subsequently restarted in July 1990. Furthermore Inspector
Slaughter maintains that Hudnall told him that the alarm had not
been working since July 1990. While Hudnall testified at hearing
that he did not then have personal knowledge that the alarm had
been absent for that period and learned this only from later
talking to his electrician, I do not find this version to be
credible. It is inconsistent with the inspector's credible
testimony, it comes a year and a half after the citation was
issued after a long opportunity for contemplation and it is
patently not credible to believe that the belt foreman did not
notice the absence of an audible alarm that should be expected to

428

be triggered on a belt that would have been repeatedly started
during the 6-month period July 1990 to January 1991.
Under the circumstances it is clear that both Shrewsbury's
electrician and its belt foreman knew that the start-up alarm was
missing from the No. 9 belt for nearly 6-months before the
citation was issued. Their failure to have replaced the stolen
alarm system for that period of time constitutes an omission of
an aggravated nature constituting "unwarrantable failure" and
high negligence. See Emery Mining Corporation, 9 FMSHRC 1997
.(1987), and the Youghiogheny and Ohio Coal Company, 9 FMSHRC 2007
(1987)0 The section 104(d)(l) citation is accordingly affirmedo
Considering the criteria under section llO(i) of the Act 1 I also
find that the proposed penalty of $400 for the alleged violation
is appropriate.
ORDER

directe~his
to pay a civil
dee' iono

Shrewsbury Coal Company is hereby
penalty of $400 within 30 days o t
date of
'

.

'\·~

Distribution:
Pamela s. Silverman, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)
David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower, P.O.
Box 553, Charleston, WV 25322 (Certi.fied Mail)
/fb

429

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

MAR

61992
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of
PETER D. SPROUSE,
Complainant

Docket No. WEVA 92-179-D
HOPE CD 91-16
Mine No. 4

v.
P-F MINING, INCORPORATED, et alu~
Respondents
ORDER OF DISMISSAL
Before~

Judge Weisberger

The Secretary's Motion to Withdraw is granted based on the
Notice of Withdrawal of Complaint filed by Complainant.
It is Ordered that this case be DISMISSED.

geis~

Administrative Law Judge

Distribution:
Tina c. Mullins, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Cecil c. Varney, Esq., Varney Law Offices, L.C., P.O. Box 468,
141 East Second Avenue, Williamson, WV 25661 (Certified Mail)
nb

430

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

MAR 9 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.

CIVIL PENAL"l'Y PROCEEDING
Docket No. CENT 91-17-M
A.C. Noo 03-01597-05503
Clarksville Quarry

Vo

CHRISMAN READY-MIX INC.u
Respondent
SECRETARY OF LABORu
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
0
0

Docket No. CENT 91-82-M
A.C. No. 03-01509-05502

Vo

Guthrey Island Pit & Plant
OZARK MATERIAL CO. u INCo u
Respondent

DECISION
Appearances:

Ernest A. Burford, Esq., Office of the Solicitoru
U.S. Department of Labor, Dallas, Texas 6
for Peti tioneq
Robert Chrisman, President, Ozark Material Company,
Inc., Ozark, Arkansas,
for both Respondents.

Before:

Judge Lasher

In these two proceedings the Secretary of Labor CMSHA) seeks
assessment of penalties for a total of three alleged violations
(described in three Citations) pursuant to Section llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a)
(1977).
After the commencement of hearing in Fort Smith, Arkansas,
on December 19, 1991, the parties concluded a settlement of the
two violations involved in Docket No. CENT 91-82-M and Respondent agreed to pay in full MSHA's initially assesed penalties of
$39 each for both Citations, Nos. 3625803 and 3625804. That settlement was approved from the bench CT. 57-59) and such approval
is here affirmed and will be reflected in the Order appearing at
the end of this decision.

431

As a result of the settlement, only one Citation remained,
No. 3281982 contained in Docket No. CENT 91-17-M.
subsequent to the hearing on the issues involved in this
matter, Respondent agreed to pay in full the penalty proposed by
MSHA ($20.00) and MSHA's motion to approve this resolution is
here approved and such penalty is assessed.
ORDER
In Docket No. CBNT 91-82-M, Citations numbered 3625803 and
3625804 are AFFIRMED and Respondent~ within 30 days from the
date of this decision, SHALL PAY to the Secretary of Labor pena
ties totaling $78.00 ($39.00 for each Citation) a
In Docket No. CENT 91-17-M, Citation No. 3281982 is APPIRMED
and Respondent, if it has not previously done so, within 30 days
from the date of this decision SHALL PAY to the Secretarv of
Labor a penalty therefor in the sum of $20o00o
-

Distribution:
Ernest A. Burford, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite 501, 525 Griffin Street, Dallas, TX 75202 (Certified Mail)
Mr. Robert Chrisman, President, CHRISMAN READY-MIX INC., P.O. Box
505, o.iark, AR 72949 (Certified Mail)

ek

432

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

MAR 10 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 91-58
A.C. No. 46-07081-03528
Victoria No. 1 Mine

SHELL ENERGY COMPANY, INC.,
Respondent
DECISION

Appearances:

Ronald Gurka, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia 0 for the
Petitioner;
Frank Staud, Shell Energy Company, Inc.,
Shinnston, West Virginia, for the Respondent.

Before:

Judge Melick

This case is before me pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
seq., the "Act," to challenge Citation No. 3312037, issued to
Shell Energy Company, Inc., (She
Energy) by thI Secretary of
Labor pursuant to section 104(d)(l) of the Act. I The citation

l;

Section 104(d)(l) reads as follows:
"(d)(l) If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standard, and
if he also finds that, while the conditions created by such
violation do not cause imminent danger, such violation is of such
nature as could significant and substantially contribute to the
cause and effect of a coal or other mien safety or health hazard,
and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation
given to the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine within
90 days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of any
mandatory health or safety standard and finds such violation to
be also caused by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring the operator
to cause all persons in the area affected by such violation,

433

alleges a violation of the mandatory standard at 30 C.F.R.
75.200 and charges as follows:

§

A 30 feet [sic] cut of coal was mined out of the
2nd split off of the No. 3 Pillar block on the 001
section, resulting in Don Henderson continuous miner
operator being 10 feet beyond permanent roof-supports.
The approved roof-control states, workman [sic] shall
not advance inby roof-bolts except to instailtemporary
supports. This condition should have been known by the
mine foreman because he made a preshift examination of
the working places before the start of the shift.
Randy Moore, Mine foreman.
Respondent Shell Energy admits inter alia? that there was a
violation of the cited standardr that the violation was
11
significant and substantial" and that it was the result of its
''unwarrantable failure. 11 Indeed it is quite clear that the
admitted violation was extremely serious and the result of
operator negligence. Shell Energy argues only that a $600
penalty as proposed by the Secretary is too high.
More particularly 1
its answer to the petition for
assessment of civil penalty, Respondent claimed that (1) the
"Victoria Mine is shut down and no longer in operation" and (2)
"due to market conditions and other extenuating circumstances,
the amount of the fine would affect our ability to operate in the
future."
At hearing, however, Shell Energy representative Frank Staud
acknowledged that the payment of the proposed $600 penalty would
not cause Shell Energy to go out of business. Indeed Staud
testified that "if $600 is going to shut me down, I shouldn't
even be in business" and maintained only that he would "rather
give that $600 to a creditor, somebody that I owe money to and
needs it . . • • " At hearing Staud also testified that his
company has resumed its mining busine·ss.
Under section llO(i), in assessing the amount of a civil
monetary penalty, the Commission must consider, among other
things, "the effect [of the penalty] on the operator's ability to
continue in business." Since the parties have stipulated and the
evidence clearly demonstrates that payment of the proposed
penalty would not affect Shell Energy's ability to continue in
business, I find no basis for a reduction of the proposed
fn. 1 (continued)
except those persons referred to in subsection (c) to be
withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines
that such violation has been abated."

434

penalty. Considering the undisputed evidence, it is clear that
the proposed penalty of $600 is indeed appropriate, if not low,
for the corresponding serious and negligent violation in this
case.
ORDER

Pi

Shell Energy company, Inc., is directfa to pay a civil
penalty of $600 for the violation charged
Citation No. 3312037
within 30 days of the date o this decisio r

p

1I\

·1

ti

. IM~\
Gar~ Melick~!
Adnf~nistrati

Distribution:

,i

e Law Judge

th~

Ronald Gurkar Esq.p Office
Solicitor, U.S. Department
Labor, 4015 Wilson Boulevard, Room 516v Arlington; VA 22203
(Certified Mail)
Mr. Frank Staud, Shell Energy Company, Inc., 57 Rebecca Street,
Shinnston, WV 26431 (Certified Mail)
/fb

435

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

2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

MAR 101992
CONSOLIDATION COAL COMPANY,
Contestant

~

CONTEST PROCEEDINGS
Docket Noo WEVA 91-166-R
Citation Nco 3105295v 2/4/91

V.

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

Docket No. WEVA 91-167-R
Citation Noo 3105296v 2/4/91
Robinson Run No. 95 Mine
Mine ID 46-01318

SECRETARY OF LABORu
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA}u
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 92-177
A.C. No. 46-01318-04022
Robinson Run No. 95 Mine

CONSOLIDATION COAL COMPANY,
Respondent
PARTIAL DECISION
and
STAY ORDER
Appearances:

Wanda M. Johnson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Respondent/Petitioner.
Walter J. Scheller, Es(::i'., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Contestant/Respondent.

Before:

Judge Koutras
statement of the Proceedings

These consolidated proceedings concern Notices of contest
filed by the contestant Consolidation Coal Company (Consol),
against the respondent (MSHA) 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 104(a) non-"S&S"
citations issued on February 4, 1991, charging Consol with
alleged violations of the mandatory accident reporting
requirements found in 30 C.F.R. § 50.10 and § 50.12. The civil

436

penalty case concerns MSHA's proposed civil penalty assessments
of $2,000 for the alleged violations, and a proposed civil
penalty assessment of $157, for one additional alleged violation
of 30 C.F.R. § 75.400, as noted in a section 104(a) citation
issued on August 22, 1991. A hearing was held in Morgantown,
West Virginia, and the parties waived the filing of briefs.
However, I have considered their oral arguments made in the
course of the hearing in my adjudication of these matters.
Issues
The issues presented in these proceedings are as follows:
lo Whether Consol violated the cited mandatory regulatory
standards, and if so, the appropriate civil penalties to be
assessed for those violations based on the criteria found
section llO(i) of the Acto
2o
Whether the incident or "event" of February 1, 1991
which gave rise to the issuance of the two contested alleged
reporting violations was in fact an "ignition" (accident)
which was required to be reported to MSHA pursuant to
30 CoF.Ro § 50ol0.

3. Whether Consol violated the provisions of 30 C.F.R.
§ 50.12, by continuing mining on February 1, 1991, after
its investigation concluded that a reportable ignition had
not occurred.
4. Additional issues raised by the parties are identified
and disposed of in the course of these decisions.

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.

2.

Commission Rules, 20 C.F.R.·-§ 2700.1 et seq.

3. Mandatory reporting standards 30 C.F.R. §§ 50.10 and
50.12; and mandatory safety standard 30 C.F.R. § 75.400.
Stipulations
The parties stipulated to the following (Tr. 6-7):
1. The presiding judge has jurisdiction to hear and decide
these cases.
2.
Inspector James Young was acting in his official
capacity as an MSHA inspector when the contested citations
were issued on February 4, 1991.

437

3. Inspector Ronald Tulanowski was acting in his official
capacity as an MSHA inspector when he conducted the accident
investigation on February 4, 1991 (Exhibit C-1).
4. The "event" which occurred on February 1, 1991, at the
Robinson Run No. 95 Mine was not a planned event.
5. Consol never notified MSHA of the February 1, 1991,
"event" prior to the issuance of the citations.
6. The imposition of any maximum penalties that may be
assessed in these proceedings pursuant to the Act will not
affect Consol's ability to continue in businesso
7.

The alleged violations were abated in good faith.

8. Consol may be considered a large mine operator for
purposes of any civil penalty assessmentso
9. The presiding judge may take judicial notice of the fact
that February 1, 1991, the date on which the "event" in
question occurred, was a Fridayv and the investigation
conducted by MSHA on February 4, 199lv was conducted on
Monday.
Bench Ruling
The parties advised me that Citation No. 3103343, issued on
August 22, 1991, for an alleged violation of 30 C.F.R. § 75.400,
is a citation which includes an issue concerning MSHA 1 s
"excessive violation history" civil penalty assessment policy.
Under the circumstances, the parties jointly moved for a stay of
this citation, and the motion was granted from the bench (Tr. 5)o
Subsequently, on February 4, 1992, I issued an order reaffirming
the bench ruling and staying the adjudication of the citation.
Discussion
The record in this case reflects that on Friday, February 1,
1991, at approximately 10:30 a.m., an "incident" or an "event"
occurred on the 11 Left (087-0) working section of Consol's
Robinson Run No. 95 Mine. It is MSHA's position that the "event"
was in fact an unplanned frictional coal dust ignition which
occurred 30 feet outby the face of the No. 1 Entry, and which
should have immediately been reported.
It is Consol's position
that the alleged ignition did not occur, or if it did, it was
something other than an "ignition" within the reporting
requirements of 30 C.F.R. § 50.10.
The alleged ignition was reported to MSHA through an
anonymous telephone call, and MSHA Inspectors Ronald T.
Tulanowski and James A. Young were dispatched to the mine site on

438

Monday, February 4, 1991, to conduct an investigation. They
conducted the investigation (MSHA Exhibit #3), and issued the two
contested citations, which are as follows:
Section 104{al non-"S&S" Citation No. 3105295, issued on
February 4, 1991, cites an alleged violation of 30 C.F.R.
§
50.10, and the condition or practice is described as follows:
Based on information obtained during an investigation
to determine if a face ignition occurred, the company
officials did not report or contact MSHA after their
own investigation of this condition. A dust ignition
set off by miner bits in sulfur at the face of the #1
entry on the 11 left 087 working section according to
crew members did occur at 10:35 a.m. on 2-1-91. Six
members of the crew and two foremen witnessed this
ignition. The company did not contact MSHA to report
this occurrence or to obtain information to see if they
should report this occurrence.
Section 104Cal non-"S&S" Citation No. 3105296, issued on
February 4, 1991, cites an alleged violation of 30 CoF.R.
§ 50.12, and the condition or practice states as follows~
No permission was granted to disturb or change an area
where a face ignition occurred. MSHA was not contacted
or notified that a face ignition occurred in the #1
face of the 11 left 087 working section. The ignition
occurred at 10:35 a.m. on 2-1-91 and the section
resumed production at 1:00 p.m. after conducting their
investigation. The area was washed down with water,
the miner was moved after advancing 80 feet past where
the ignition occurred, and the miner has had extensive
maintenance performed since 2-1-91. The area was
inspected by MSHA on 2-4-91 and found to be cleaned and
rock dusted.
MSHA's Testimony and Evidence
MSHA Insoector James A. Younq testified that he has been so
employed for six years, and he confirmed that he and Inspector
Ron Tulanowski went to the mine on February 4, 1991, to
investigate an ignition which had been reported to the MSHA
office. Mr. Young stated that the section crew was initially
questioned on the surface, and after they dressed and went
underground, additional conversations were held with the same
individuals underground, and he identified some of the
individuals, including foremen, and several mine management
people who were present during the conversations (Tr. 15-17).
Inspector Young explained and described the conversations
with the crew members as follows at (Tr. 17-18).

439

A.
In essence, what we tried to determine by the questions
that Mr. Tulanowski was asking was did the individuals see
sparks or did they see a flame of any duration and maybe the
color of it.
Each individual categorically stated that they had witnessed
a flame. They gave a dimension to it. They gave a color to
it. They gave how long it lasted.
At the end of this, talking with each crew member one-onone, there was a kind of a consensus question asked. This
is what was said. Does anyone disagree or does everyone
agree? At that time no one spoke up in disagreement with
what we had heard in that room.

Q. You said that the crew mentioned the dimension of the
flame.
Do you recall what the dimensions were?
A. Almost man for man, everyone said it was approximately
three foot by six foot.
It was orange in color. It lasted
for a very short period of time, and that time frame was
arrived at by kind of taking a happy medium. One guy would
say five to ten seconds, and one would say three to
So we split the difference and made it a three-to-fivesecond duration.
Q.
Do you recall how the employees told you they reacted to
this flame?

A. They seemed to be very upset. A couple of them made it
very clear that they were scared, that they heard a noise.
One of them said that he actually felt the heat and that it
was kind of an upsetting experience.
Mr. Young stated that after speaking with the employees, he
inspected the area where the alleged ignition occurred and found
that it had been cleaned and rock dusted, and the miner had been
advanced approximately 80 feet from the entry where the event
took place. He then returned to the surface and discussed the
matter with management, and advised them that the citations would
be issued. Mr. Young confirmed that the issued the two citations
and he explained the findings that he made. He confirmed that he
considered the violations to be non-"S&S", and the reporting
citation was marked "high negligence" because he believed that
management should have at least made an effort to contact MSHA
for information or to report the incident. Abatement was
achieved through a meeting with the crew and management to
explain the importance of reporting such matters to MSHA
(Tr. 20-25).
Mr. Young identified a copy of an accident report which he
prepared and he confirmed that he agreed with the findings in the

440

report (MSHA Exhibit #3). He also confirmed that the conclusions
in the report and the decision to issue the citations were based
on the information he received from Consol's employees, and that
the conclusion that the ignition was caused "when heat or sparks
generated from the cutter bits ignited with the coal dust" was
based on "kind of a consensus opinion of all of us involved"
(Tr. 26-27) .
On cross-examination, Mr. Young stated that mine management
makes "a decent effort" to address any safety problems and has
been cooperative with him during his prior inspections of the
mine, and he considered mine superintendent David Tonkin to be a
truthful person. Mr. Young stated that on February 4, 1991, he
was made aware of the fact that management had conducted an
investigation of the event in question, but he could not state
whether he believed that Mr. Tonkin would have reported the
incident if he thought that an ignition had occurred (Tr. 30).
Mr. Young confirmed that Mr. Tonkin told him that he had
conducted an investigation, and in 11 general terms said he did not
find any soot on the roof". After the MSHA investigation was
completed, Mr. Tonkin told him that he did not believe there was
a reportable accident but that he nonetheless assumed the
responsibility for the matter (Tr. 31).
Mr. Young stated that the investigative interviews with the
crew on the surface were conducted as a group in the same room,
and not individually. Inspector Tulanowski was asking the
questions and Mr. Young was taking notes and jotting down some
things that were said. The first person questioned was James
Parker, and Mr. Young was not aware that he was chairman of the
mine safety committee. Mr. Young stated that "their stories were
not the same. They were not habitual. One guy did not copy what
the other man said ••• he gave his testimony in different
terminology. They did not sound alike". The "testimony" was not
taken under oath, and the one room was used because that is where
mine management summoned the crew and made the room available.
During the subsequent meeting in the underground dinner hole, the
crew came in groups of two or three,~nd "it ended up that there
was about five in there plus a couple of management men" and
several people were walking in and out (Tr. 34-35).
Mr. Young was of the opinion that an ignition "would have to
have a flame", and that the duration would be "a pop, which is
referred to in the mining industry.
A pop is methane, based more
on myself, in the mine. A pop would be similar to a firecracker"
(Tr. 35).
In response to a question as to whether or not the
term "ignition" is defined in MSHA's regulations, Mr. Young
responded as follows (Tr. 35-36):

Q. Are you aware of anywhere in the regulations where the
term "ignition" is defined?

441

A.

I haven't researched that, no.

Q.

So you are not aware of whether or not it is defined?

A. There is a definition in there somewhere, I'm sure.
It
could be our manual or policy manual or something.
I
haven't looked it up.
The part that I play in this is not
talking about technical terms of an ignition or an explosion
or whatever.
The only thing that I'm basing -- and my name
is on this citation -- for is the fact that Consolidation
coal company is to report to us anything, regardless of what
it was.
Mr. Young confirmed that no one said anything during the
investigation that would lead him to believe that methane had
ignited and he stated that u1we were not speaking in terms of
methane.
We were talking of coal dust 11 (Tr. 38). He also stated
that information was received that indicated that bit lugs were
off the miner and that enough sulfur was present at the bottom of
the coal seam to cause an ignition when coming in contact with
the bits.
He confirmed that he was told that the ventilation was
good and that the methane checks which were made did not indicate
the presence of any methane (Tr. 38 .
Mr. Young confirmed that he does not have the technical
background which would enable him to determine what it takes to
ignite coal dust, but that "we have classes on that, but you
don't retain much of it" (Tr. 38). He further confirmed that he
and Mr. Tulanowski only prepared part of the report of
investigation.
They wrote the abstract which appears at Section
E, at page one, and the description of the accident which appears
on pgs. 2-3.
The rest of the report "was put together and
compiled by other people in MSHA up the ladder from us, which is
a lot of it is just--if you will read the general information,
that was put together by someone else.
I did not do that."
(Tr. 39).
Mr. Young stated that he was told that the flame was of
short duration and self-extinguishing, and that "the flame
appeared and it went out". He confirmed that he had not
previously conducted investigations of ignitions, but that he has
had his hair burned and eyebrows singed from methane ignitions,
but there were no "telltale" signs of any soot (Tr. 40).
According to the testimony of the people during his investigation, coal dust ignited. Something was also said about
Mr. Parker's water supply, and that several miner head bits were
reportedly missing, but he could not recall what was said about
the water supply, and he did not believe that anyone knew when
the bits had last been set (Tr. 42).
Mr. Young stated that the other individuals who contributed
to the report of investigation were supervisors who had to clear

442

the reports for terminology, grammar, and punctuation, and he did
not know who signed the reports for him and Mr. Tulanowski.
It
was his understanding that the striking out of the words "methane
ignition" on page 3 of the report, and the insertion of
"frictional dust" was to cure a typographical error or misprint
(Tr. 43). Mr. Young confirmed that notes were taken during the
investigation, and that they were turned in with his report.
MSHA's counsel stated that the whereabouts of the notes is not
known, and she confirmed my bench comment that "God knows what
happened to them" (Tr. 44). Counsel also confirmed that tape
recorders were not used to record the employee interviews
(Tr. 44) .
James W. Parker, Jr., testified that he has been employed
with Consol for 19 years, and was working as a continuous miner
operator on February lu 1991. He described the work that he was
performing that evening and he stated as follows at (Tr. 51-52) ~
I sheared it down that one time, and I scooted it over
about probably eight to ten inches. Then I sumped it
in another 12 inches at the top again. When I sheared
it down the second time, thatvs when my bolter operator
hollered and screamed. Thatvs when I felt the flame
coming from the left-hand side of the miner.
Q. When you said you felt the flame, what color was the
flame?

A.

Orange and yellow.

Q.

Was it a big flame or was it just a little spark?

A.
It started out at the head. It went up, and as it went
up it widened out from probably -- it went probably 5 or 6
feet high, and it went probably in an area of 7-1/2 feet
wide. As it went to the top, it started rolling back. As
it hit the arch, it started rolling back toward us.
That's when I looked down.
I couldn't turn my sprays
on all the way.
By this time my bolter operator had
done grabbed the washdown hose and somebody on the
other side had the other washdown hose.
I had looked down to see where my fire suppression was
because that was the only thing I had left. As soon as I
looked and seen my control handle, I looked back up and it
was gone.
Q. At the time this flame rolled towards you, what did you
do? What was your reaction?

443

A.
It scared me real bad. That's the first time I've ever
been in one of them. I knew if we didn't get it out that it
could have just did (sic) the whole mines up.
Q.
You said you had been mining for at least 19 years.
have seen a spark before, have you not?

A.

Yes, Ma'am.

Q.

Was this a spark?

You

A.
No, ma 1 am.
It was a flame.
It went from the end of the
cab clear over to the trim chain and off the rib. After it
hit the arch it was rolling back toward me.
It felt like
somebody had a torch shooting at me.
Mr. Parker stated that he was seated on the right side of
the machine, and that the ignition occurred on the left side of
the machine head. After he shut down the machine, day shift
foreman Gary Graham called for Mr. Tonkin and mine foreman Ray
Oldaker to come to the scene. Mr. Parker stated that Mr. Graham
stated that he saw the smoke from the flame, and that when
Mr. Oldaker arrived he stated "Yes, I see a little bits of soot
in the air" (Tr. 55) .
Mr. Parker stated that he suggested that Mr. Tonkin and
Mr. Oldaker summon "the safety committee and Federal and State,
and get it over with", but that they took the position that they
had to conduct an initial investigation before calling anyone.
Mr. Tonkin and Mr. Oldaker gathered the crew together and
questioned them, and Mr. Parker stated that "We all agreed that
we had an ignition and it went up the left-side of the miner, out
the rib 1 and rolled back toward the miner" (Tr. 56). The crew
was then instructed to go eat, and a mechanic came to the area
and said that two or three bits had broken off the miner. The
water sprays were cleaned, some work was done on a loose monitor
box, and the crew was then instructed to continue working. Most
of the work performed on the miner can normally be done at the
start of the shift, but broken bits and plugged sprays can be
taken care of on-shift (Tr. 57).
Mr. Parker stated that after eating, and after the work was
completed on the miner, he asked Mr. Tonkin and Mr. Oldaker if
anyone was going to be called, and they told him that "We don't
have to call them". Mr. Spencer then remarked "Okay, but I'm
telling you I don't want any trouble in this later on" and he
proceeded to continue slabbing the place "where I had finished
from where I had the flash" (Tr. 59). He continued seeing sparks
from "a real thick stream of sulfur" and "it was throwing sparks
as I was hitting in sulfur" (Tr. 59).

444

Mr. Parker stated that after meeting with management on
Friday, February 1, 1991, the crew was not contacted again until
the MSHA inspectors came to the mine on Monday, February 4, 1991,
to conduct their investigation. Management summoned the crew
together at the safety office to meet with the inspectors
(Tr. 61). The statement he gave to the inspectors was
essentially the same as it was on Friday, and he explained that
the inspectors questioned the crew as a group but asked questions
of each individual, took notes of the answers given, and read the
notes back and asked each individual if their statements were
correct. Mr. Parker stated that he was not sworn, did not sign
any statement, and he was not given a copy of what was said
(Tr. 69-71)0
On cross-examination, Mr. Parker testified that the
ventilation was good on the evening in question, and he marked up
a sketch showing where he was operating his miner, the
ventilation air direction, where he was seated, the location
where the ignition originated and its point of travel, and the
location of a fan (Exhibits C-1 and C-2, Tr. 78-82)
He
confirmed that he checked the miner bits at the start of the
shift, and he set 8 bits and replaced the ones that were bado He
also cleaned the water sprays, and the mechanic told him that two
or three bits were knocked off where they struck the sulfur which
is hard enough to sometimes break bits (Tr. 83). He confirmed
that he cut the water sprays back because he did not want to
create a mud hole and mire the miner (Tr. 84). After the
incident in question, he continued to use full water pressure and
that "it was just throwing sparks where it was hitting hard"
(Tr. 85). He confirmed that the methane monitor was "picking
nothing up but one-tenth" (Tr. 87).
o

Referring to notes that he made on February 1, 1991, after
the ignition, Mr. Parker confirmed that the notes do not
mentioned "flames rolling back", but that "it says a ball of
on the left side that lasted three to five seconds" (Tr. 88). He
stated that "the way it rolled back_it looked like a ball of
fire.
The flames rolled back at me". He further conceded that
his notes do not say anything about his feeling any heat, or that
he felt like someone had pointed a torch at him, or that anyone
said anything about seeing smoke (Tr. 88-89). He stated that he
made the notes 5 to 10 minutes after the miner was shut down, and
that the notes contain an accurate description of the way he
remembered the incident five minutes after it happened (Tr. 89).
Mr. Parker stated that he was serving on the mine committee
on February 1, 1991, and that he was fairly familiar with the
union contract. He believed that he cannot refuse to work
because of an unsafe condition, but that he could work under
protest and request his foreman to summon a safety committeeman
to be present. He confirmed that he did not invoke his
individual safety rights or state that he did not wish to operate

445

the miner after the ignition occurred (Tr. 91). He was not aware
of the fact that an individual miner could request a section
103(g) inspection, and believed that this could only be done by a
safety committeeman (Tr. 93).
Mr. Parker did not believe that the area where he was
working was too dusty, and he confirmed that the return was white
after he placed two bags of rock dust into the fan before he
started mining.
The return looked the same after the incident
(Tr. 95). He confirmed that when Mr. Tonkin was at the scene
during his initial investigation "everybody" agreed that an
ignition had occurred, but management decided not to report it
(Tr. 96).
Gary L. Hayes, roof bolter operator, testified that he was
working with miner operator Parker on Friday, February 1, 1991,
and after checking the face for methane and finding one-tenth of
one-percent, he advised Mr. Parker that
was safe to begin
cutting coal. He explained that Mr. Parker proceeded to cut and
trim the coal face.
Mr. Hayes was standing to the front of
Mr. Parker, approximately 12 feet from the miner head, when he
saw a flame come over the head of the miner. The flame traveled
straight to the roof top and widened out for a distance of four
to five feet, and then rolled back from a corner of the roof.
Mr. Hayes screamed and grabbed a wash-down hose and aimed it at
the flame.
However, the flame extinguished itself and only
lasted for four to five seconds.
Mr. Hayes stated that foremen Carter and Wolfe were present
and they notified mine management about the flame.
Mr. Hayes
confirmed that he was standing closer to the flame than anyone
else, that he was scared, and that this was the first time he
ever saw a flame come off a mining machine head in his 18 years
in the mines, and he described what he observed as follows at
(Tr. 104, 106, 110) :
Q.
When you first saw this flame, you said it rolled up.
Would you say, sir, it was almost the arch?
A.
Yes, I'd say that.
It came up like the face where it
sumped in and cut down.
It come up that face.
When it hit
the mine roof where that miner sumped in it had kind of a
roll to it, that made the flame go around because it had to
come back out, see.
That's what caused it to like roll back
towards us.
It didn't really come back to us, but it just rolled back
there as far as we was sumped in and rolled back.
If it had
come back any farther, I think it would have went down the
return.

*

*

*

*

446

*

*

*

Q.

Everyone characterized it as a flame or fire?

A. Everyone said it was a flame. The flame came up and
then it rolled up. Some of them got a ball or fire out of
that because it rolled out.
It was a flame that went up off
of the head of the miner and went up to the top.
If you could cup your hand like that and take something
see, it curved like this (indicating). It just went up
there. Well, it would have went straight up, but when it
hit that curve, it made it roll out.

*

*

*

*

*

It pretty well consumed itself mainly right at the face and
the head of the miner, right in that area.
It didn't really
come back out and go down a return or anything.
Mr. Hayes stated that after the flame extinguished 1 day
shift foreman Gary Graham and dust sampler Sandy Eastman arrived
at the area and they stated "they could smell the smoke where the
flame came up" (Tr. 105). Mine superintendent David Tonkin and
mine foreman Greg Oldaker then arrived and conducted an
investigation. After checking the machine and checking for
methane, they allowed work to continue. Mr. Hayes stated that
the crew was questioned and that they explained to Mr. Tonkin
"that we had a flame come up.
It was orange yellow, bright
orange and orange mixed flame that came up". Mr. Hayes stated
that the crew also informed Mr. Tonkin that they were in
agreement that "it was set off by dust and not methane.
It was
the dust from the miner. The sulfur and the sparks set the dust
off or whatever. That's how the flame got started, that we felt
it got started" (Tr. 108). Mr. Hayes further stated that Mr.
Tonkin and Mr. Oldaker were not present to see what had occurred,
but that "they agreed that, yes, there was a flame.
That's what
we seen" (Tr. 108).
Mr. Hayes stated that Mr. Tonkin and Mr. Oldaker informed
the crew that in view of the fact that so many ignitions had
previously occurred in the 12 Left section they had an agreement
"with the Federal" that if management investigated such incidents
and both management and the union were satisfied as to the cause
of the ignition, work could resume (Tr. 109). The area was in
"good shape" when work resumed (Tr. 110). Mr. Hayes confirmed
that he has observed sparks at the face in the past, and he
stated that "We've mined in sulfur, and there's a lot of times
that there's sparks and stuff like that.
But this was a flame of
fire" (Tr. 111).
Mr. Hayes confirmed that the inspectors interviewed the crew
on Monday, February 4, 1991, and that management was present.
Each individual at the meeting stated what they had observed, and

447

their statements were read back to them, and they all agreed to
what they had observed and made no changes in their statements
(Tr. 112).
On cross-examination, Mr. Hayes stated that there was no
appreciable methane present during the work shift, that there was
"a good bit of air" ventilating the face and keeping the methane
out, and that the dust was "no more" than what he had seen on
prior occasions. He believed that Mr. Parker did not have the
miner water sprays all the way on (Tr. 115). He further believed
that none of the crew had ever previously observed an ignitionf
and he confirmed that when the inspectors spoke to the crew
everyone was in the room together (Tr. 118).
David Allen Moore, testified that he has worked for Consol
for 18 years, and was a roof bolter on February lf 1991. The
mining machine area was dusty and he stuck his head around the
corner of the entry to get some fresh air, and when he next
turned around he saw a flame travel up the rib from the bottom
head of the miner. He was scared, and he screamed and grabbed
the water hose, but the flame went out. He stated that the flame
extended three to four feet from the miner head up to the roof
arch for a distance of five or six feet and that 11 the heat from
that thing just felt like it could singe the hair on your facef
and it was real bright yellow and orange. It just scared me to
death" (Tr. 122-123). Shift foreman Gary Graham and dust person
Sandy Eastham heard the screams and came to the area and
Mr. Graham stated he could smell the smoke, and Mr. Moore said
that he showed Mr. Graham "a little bit of soot" where he said he
could "smell where it burned" (Tr. 123-124).
Mr. Moore stated that Mr. Tonkin and Mr. Oldaker were called
to the scene, and spoke to each person, and they each stated and
agreed that they had seen a flame (Tr. 125). Mr. Moore stated
that Jimmy Parker, Dave Moore, Gary Hayes, Roy Sailor, and Kevin
Carter were present, but that Bob Wo.;tte was not. However,
Mr. Wolfe had previously agreed that there was an ignition, but
he was allowed to go home after dinner. Mr. Tonkin asked
everyone whether there was an agreement as to what had happened
and Mr. Moore stated that 11 we said yes" (Tr. 125).
Mr. Moore stated that management had on previous occasions
called "the Federal out" when there were prior ignitions, but
that someone stated that the only time they were to be called was
in the event of a gas ignition. Mr. Moore stated that "we all
agreed" that what occurred on February 1, 1991, was a dust
ignition and "it ignited and caught the dust at the face on fire
which caused the flame.
It made us scream" (Tr. 127). He
confirmed that after dinner, they continued mining (Tr. 128).

448

Mr. Moore stated that when he next returned to work on
Monday, February 4, 1991, he and the crew met with the
inspectors. Inspector Tulanowski asked the questions, and
Inspector Young "wrote them down" (Tr. 128). The statements were
read back, and "they all agreed that this is what happened"
(Tr. 129). Mine management representatives, including
Mr. Graham, Sandy Eastham, and foreman Kevin Carter were also
present (Tr. 130). Mr. Moore was not sure what Mr. Carter may
have said, and he could not recall that Mr. Wolfe was present
(Tr. 131) .
On cross-examination. Mr. Moore described where he was
standing when he observed the flame, and he confirmed that it was
the first time he had seen anything like it (Tro 132-134). He
also testified as to the use of the water sprays by Mr. Parkeru
and he confirmed that while Mro Parker was cutting at the face
after the incident with the water sprays fully on 11 it made sparks
all the time" {Tr. 137).
Respondent's Testimony and Evidence
Kevin B. Carter, Longwall Foreman, stated that he has worked
as a foreman for 12 years and that he holds a B.S. degree
technical mine engineering from Fairmont State and that he was
the day shift section boss on the 11 Left section on February 1,
1990. He fire-bossed the section that day and found no more than
two-tenths of one percent methane.
Mr. Carter stated that soon after mining began he heard
everyone yelling and foreman Bob Wolfe was running to the water
hose. Mr. Carter stated that in response to the yelling he was
turning "a lot of different ways and looking everywhere at once
because I wasn't sure what was going on", and that "whatever I
saw, I saw very briefly because I was turned the other way from
the people, just a glow near the bits". He explained that he saw
"a glow near the bits on the left side, above the bits.
It was
just gone almost immediately as I looked."
(Tr. 143). He stated
that he saw no flame or smoke.
Mr. Carter could not remember Mr. Parker telling him that he
saw anything, and he stated that Dave Moore and Gary Hayes told
him that they "saw something on the left side of the miner" but
he did not remember that they said they saw flames rolling back
toward them. Mr. Carter stated that Mr. Moore and Mr. Hayes told
him that they saw "like a ring of fire near the bits, a glow near
the bits, up above between the bits and roof" (Tr. 143-144).
Mr. Carter explained his understanding of "a ring of fire"
as follows at (Tr. 145):

449

A.
In my experience, when someone refers to it, they refer
to it when they're in sulfur. When you're cutting a lot of
it, you'll see a lot of sparks off the head. The head moves
pretty quickly, and you'll see a lot of -- it's called a
ring of fire.

Q. Does it create an illusion of a ring of fire?
everything look orange?

Does

A.
It's almost like holding metal against a grinder.
the same thing.

It 1 s

Mr. Carter confirmed that management conducted an
investigation of the incident and that Mr. Tonkin spoke to
everyone and stated "are we in agreement that we hit sulfur with
the bits and you saw a ring of fire around the bits? We know
what it was, and we know what caused it 11 • Mr. Carter stated that
everyone responded 11 yes" and no one stated that they had seen
flames (Tr. 146).
Mr. Carter stated that "it was not real dusty" on
February 1, and that the air flow was good and the fan was
running. He also stated that he was looking back toward the boom
of the miner and was also watching the cables. He confirmed that
he was present during the MSHA investigation of February 4, and
that the statements made to the inspectors "seemed to have
escalated a little bit" from the statements previously given to
Mr. Tonkin. The employees told the inspectors that they saw fire
above the miner bits and when asked if he recalled that they said
they saw flames he responded "I think they did" (Tr. 148).
On cross-examination, Mr. carter stated that he never made
any statement that he saw flames.
(In response to a question
from the bench, Inspector Young stated that during the
investigation interviews he recalled that Mr. Carter "used the
terminology "fire" and not flame (Tr. 153)).
Mr. Carter confirmed that he did not actually observe the
event when it happened and that he was "at the rear of the miner,
facing the rear of the mine, facing away from the face"
(Tr. 155). However, as he turned around he briefly saw a glow
on the left side of the miner, and that "I caught the tail end of
whatever it was, enough for me to have noticed there was
something there" (Tr. 156). He stated that at the time of the
event he asked Mr. Moore and Mr. Hayes what they saw and that
they told him they saw fire on the left side of the miner at the
bits and they did not characterize what they saw as a "ring of
fire" (Tr. 159) .
Mr. Carter confirmed that most of the crew members had long
years of experience in the mines and that "they saw something
more than they had seen before or they wouldn't have been

450

panicked. We do hit a lot of sulfur. You see a lot of sparks, a
lot of glow around the bits" (Tr. 160-161).
Robert Wolfe, section foreman, stated that he holds a BS
degree in mining engineering and an AS degree in mechanical
engineering from Fairmont State. He has served as an hourly
loading machine and miner operator, roof bolter, shear operator,
and shieldman, and on February 1, 1991, he stayed over from his
night shift to work the day shift and help slab the No. 1 entry
(Tr. 165). He explained the work he performed, and he confirmed
that he checked for methane and found two-tenths of one percent
"which is common on that area" (Tr. 167).
Mr. Wolfe stated that Mr. Parker cut the miner water sprays
back 80 percent when he sheared the bottom of the facer and that
"there was a ball where the bits were coming into contact with
the iron pyrite.
It's sparks 1 we had a lot of sulfur gas sparks.u
(Tr. 168). Mr. Wolfe stated that he grabbed a washdown hose used
to wash dust off the miner to put additional water on the sparks
and that he did not see any flames.
He did not remember making
any statements to anyone that he saw flames (Tr. 168). He did
not see or smell any smoke.
In his opinion 1 the crew became
excited because "they seen more sparks off the iron pyrite than
they was used to seeing because the water was cut back on the
miner", and that "there wasn 1 t that much dust aq (Tr. 169)
-0

Mr. Wolfe confirmed that he was present during the
investigation conducted by Mr. Tonkin and Mr. Oldaker, and he
explained as follows at (Tr. 170-171):
Q.
Do you recall Mr. Tonkin asking the crew members if they
had seen flames or had an ignition?

A.

Yes.

Everyone there was present.

Q.

Do you recall what the answers were?

A.
The best I can remember, everyone determined that hadn't
been that. That hadn't happened.
JUDGE KOUTRAS:
Do you remember him asking everybody
individually whether they saw a flame?
THE WITNESS:
JUDGE KOUTRAS:
flames?

He asked them as a group.
What did he say?

Did anybody see

THE WITNESS:
I don't recall what he said exactly, but
it was in that line. He said, "Did anyone see flames?
Everyone was standing in a semi-circle around him as
he was speaking.

451

JUDGE KOUTRAS:
they saw a flame?
THE WITNESS:

He specifically asked the group whether
Yes.

BY MR. SCHELLER:

Q.

Their answers at that point were that they had not?

A.
Yes, the best I can remember.
in there a lot of hours.

I by this time had been

On cross-examination, Mr. Wolfe stated that the crew
screamed when they saw sparks and that he already had the water
hose on and pointed in the direction of the miner head because it
was a common occurrence. He was following his normal procedure
and would have the water on regardless of any sparks in order to
cut down the dust (Tr. 172-174).
David c. Tonkin, Assistant Mine Superintendent, stated that
he was serving as the acting superintendent on February 1 7 1991,
and has 23 years of mining experience (Tr. 185)" He confirmed
that he has investigated ignitions on several occasions and that
he looks for physical evidence such as soot, cindersr and ash and
that he has visited areas after an ignition and could still smell
smoke. He confirmed that he was summoned to the section by Gary
Graham who informed him 11 they might have had an ignition at the
No. 1 heading". Mr. Graham further informed him that 11 they had
stopped mining and I left everything be" (Tr. 186).
Mr. Tonkin confirmed that he investigated the area where the
event took place and found no physical evidence of soot or ash
and smelled no smoke. He found nothing that would have led him
to believe that an ignition had occurred (Tr. 187). He then
called the crew together to question the individuals about what
they had seen and he explained as follow at (Tr. 187-189):
A.
I don't remember exactly the order I talked to them.
Mr. Hayes said he was standing on the right side of the
miner. He had been checking for methane in the face area.
He said he saw a small fireball at the bits of the miner.
He turned to get the hose, to get the hose there, turned the
water on and it was gone.
I talked to Mr. Moore. He said he was standing near the
corner. He was not looking at the miner. He said he heard
somebody holler, and he looked around. He said he saw a
fireball at the bits of the miner. He saw people grab the
water hose and it was gone.
I talked to Jimmy Parker. I asked him what he was doing.
He described the motions he went through as far as making

452

one sump, making the second sump. He said he was making the
second sump and as the miner head was being dropped, which
is a common practice for miner operators, they usually reach
down and turn the water nearly off or down. He said he was
reaching down to turn the water down, and he heard somebody
holler. He said he reached back up and looked. He saw a
ball and it was gone.

* * * * I told them we were going to make the investigation.
I questioned them.
I went back over it. I said that from
you all are telling me, we saw a fireball at the bits of the
miner.
I questioned them about a blue flame. There's no
blue flame. It's a fireball at the bit of the miner.
It
was contained around the bits of the miner.
I saidf "Do you
all agree with that?" They said yes.

Q.

Did anyone tell you they saw any flames?

A.

No, there was no mention of flames.

Mr. Tonkin stated that if anyone had told him they saw
flames or that the flames went to the roof it would have been a
reportable event and he would have reported it as he has done
the past. However, after speaking to all of the employees he
concluded that while dropping the miner, Mr. Parker hit a sulfur
ball as the water was turned off or nearly turned off and that
"this would bring a larger than normal amount of light to the
area . • • he was cutting through this sulfur ball with his water
off and greatly amplified the light.
The people were not used
to it, and they were afraid" (Tr. 189).
Mr. Tonkin stated that he made the decision that the event
was not reportable and that "I asked everybody if they agreed
with me with what we saw, and they all agreed what we saw. That
was a fireball near the bits on the side of the miner". He
explained that the "fireball 11 he was referring to was the "Ring
of Sparks" which is "low on the py;r:Jtes" (Tr. 190}.
Mr. Tonkin confirmed that he was present during the MSHA
investigation of February 4, 1991, and that the events as relayed
by the crew to the inspectors were not the same as they were
relayed to him on February 1, immediately after the occurrence.
He believed the sparks were enhanced by the lack of water on the
miner and that it cut through the pyrite with the water turned
off or nearly turned off. There was no doubt in his mind that an
ignition did not occur (Tr. 191).
On cross-examination, Mr. Tonkin stated that the employees
told him they saw a fireball on the left side of the miner near
the bit area, and that it was contained around the bits. They
did not state that it rolled up the arch (Tr. 192). He confirmed

453

that the employees told the inspectors that there were flames,
but he did not know that they stated that it was an ignition.
Mr. Tonkin stated that he was not told anything about any
flames by the crew when he spoke to them on Friday, February 1,
and that "the story today was even more so than the story that we
had that day" (Tr. 192). Mr. Tonkin stated that he reported what
he believed happened to his superiors, and that his decision with
respect to the lack of a reportable incident was based on
physical evidence and what the men had reported to him. The
presence of flames and an ignition was not reported to him as
such, and he believed the men saw "a ball of fire", which he
defined as the "result of the bits hitting the sulfur, and it was
amplified by the lack of water" (Tr. 194).
He further explained as follows at (Tro 194) ~
You have heard these men testify today how that flame or
that ball of fire rolled toward them. Then you said that
was never reported.
Qo

A.
Yes. They told me that it was a flame and came towards
them, yes. The day that you~re talking about in the safety
office, there was no mention of a large ball of fire going
up against the arch and rolling back to them. That was not
even mentioned that day, but they did say that day there
were flames.

Q. Just based on your own opinion, you would not call a
ball of fire an ignition?
A. My terminology of ball of fire has to do with hitting
sulfur and a ball of fire, large sparking around the bits,
my terminology of a ball of fire.

Q.
But you always have sparking around bits in large
streaks and things like that,.c.o+rect?
A.

Yes.

Q.
It does not result in a ball of fire.
streaks.
A.

It's just

If the water is turned on, I'd say, no, it wouldn't.

Mr. Tonkin stated that at the time of the MSHA investigation
he told Inspector Young that the story relayed to him by the crew
was not the same as what he heard underground on February 1,
(Tr. 196). Mr. Tonkin stated that he told Mr. Parker that in the
event management concluded that there was no ignition it would
not be reported to MSHA and that mining would continue.

454

Mr. Tonkin believed that his relations with the miners and the
inspector were good (Tr. 197).
Mr. Tonkin stated that since he did not believe there was an
ignition, mining was allowed to continue.
If an ignition that he
thought was reportable had occurred, the evidence would not have
been destroyed and "we would have let it be" (Tr. 198). He
believed that management did the right thing and that foreman
Graham told the crew not to disturb anything until he (Tonkin)
reached the area. Mr. Tonkin conceded that Mr. Parker may have
seen a flame, and he stated that "he did not tell me he saw a
flame.
That's what I had to go on.
I'm not denying he saw
flames, I'm just telling you what they reported to me" (Tr. 199)
Mr. Tonkin was of the opinion that if dust had engaged an
ignition and rolled to the roof, there would surely be soot on
the roof. He speculated that the miners may have embellished
their story because management and the safety committee were not
on good terms and the union may have pressured them (Tr" 1992 00) .
o

Mr. Tonkin stated that he prepared no notes or report of his
investigation and saw no harm in notifying MSHA of the event
(Tr. 200-201). He explained that he has in the past
in ignition investigations with MSHA, but that in
did not feel the need to call MSHA if he believed
was no
ignition (Tr. 201). He stated that after questioning everyone
they agreed that there was a ball of fire in and around the bits
and that no one spoke up and said that they saw more than a ball
of fire and saw flames rolling up over the roof (Tr. 202-203).
Greg Oldaker stated that he has 20 years of mining
experience and that he was the underground mine foreman on
February 1, 1991. He confirmed that he was summoned to the
section by phone and that "they said they had a possible
ignition" (Tr. 204). He confirmed that he checked the miner and
found no evidence of soot, ash, or soot streamers, and did not
smell smoke. He saw nothing that would indicate that an ignition
had occurred. He found 30,000 cubi2 feet of air going across the
miner, and one-tenth of one-percent methane (Tr. 205).
Mr. Oldaker confirmed that he was present "the majority of
the time" during the management investigation and that "as a
whole, to me, everybody was more or less agreeing that had a ball
or fire" (Tr. 206). He described a "ball of fire" as "like when
you're in sulfur and you've got a lot of sparks from the sulfur
coming around the head of the miner they'll refer to it as a ball
of fire.
That's more or less what it is" (Tr. 206). He stated
that he never heard anyone say anything about flames, and that
the crew basically agreed that what they had seen was a ball of
fire around the bits. He "was more or less in agreement with
them because I didn't see evidence of an ignition myself when I
looked at it" (Tr. 207). He confirmed that he may have been in

455

or out of the room during MSHA's interviews with the employees
but he did not sit in on any of the testimony (Tr. 207).
In response to further questions, Mr. Oldaker stated that he
has observed balls of fire from cutting sulfur, and the size of
the ball would depend on the amount of sulfur present. Although
there may be a big glow "like a shower of sparks", he did not
believe it would roll up the face and he has never observed this
happen. Although he believed that such sparking could probably
ignite methane, he did not know if it would ignite coal dust
(Tr. 209).
Inspector Young was recalled by the Court and he explained
that any statements made during the investigation with respect to
"a ball of fire rolling up the coal and all that" would not
appear in his report of investigation. He further explained that
it "would not be the terminology that you put in there.
IRve
never seen one of these come close to that kind of descriptionuu
(Tr. 210). When asked if he would include in his report any
statements by Mr. Wolfe and Mr. Carter (if in fact made to him)
that they saw a ball of fire, Mr. Young responded "a ball of
five, maybe, but you were saying rolling up the coal and allo We
would not have put that in there, no"
(Tr. 210) .
When asked if he would have included in his report any
statements (if in fact made) that flames were rolling back toward
the mine operator, Mr. Young stated that he would have put that
in his notes "but I would not have worded it that way in this
accident report, no.
I've never seen one with terminology like
that" (Tr. 22 O} •
Mr. Young confirmed that during his investigation on
February 4, Mr. Tonkin stated "if I had heard what you just heard
the other day on the section, I would have reported it" (Tr.
211). Mr. Tonkin told him that the statements made by the miners
during the interviews were not the same statements made to him
(Tonkin) during his investigation (Tr. 219).
Mr. Young confirmed that he based his citation for the
failure by the respondent to preserve the evidence on the
testimony of the employees which led him to conclude that three
was an ignition, and that
there was an ignition, MSHA should
have been afforded the opportunity to investigate it. However,
since the area was cleaned up and repairs made to the miner, any
investigation would have been fruitless (Tr. 212). Conceding
that the respondent had the right to investigate in order to
decide whether a reportable accident had occurred, and that there
would be nothing to preserve if it was concluded that the
incident was not reportable, Mr. Young monetheless stated that
"the testimony was so overwhelming that we had no choice. We

456

didn't hear anything contrary to an ignition. Nobody told us a
maybe, an if, or what for.
It was all dead straight forward".
When asked if the testimony he heard during the hearing in
this case was like the testimony he heard during his
investigation, Mr. Young responded "I don't know if any words
agreed" (Tr. 212). Mr. Young stated that Mr. Parker's testimony
that "it went all the way to the ceiling and rolled back on him"
was the same as what he stated during the investigation, and that
the hearing testimony of the other miners was also consistent
with their prior statements (Tro 213).
When asked if he disagreed with the testimony about the
appearance of a nball of firen or 11 a ring of fire 10 r Mr. Young
stated that there were 8 or 9 people in the room during his
interviews and that 11 it seemed that we had one faction over here
that wanted to agree on this is what it is and one faction over
here that wanted to agre.e on something else 11 (Tr. 216).
Mr. Young stated that he has seen "a ring of flames 11 around a
miner bit when dust and methane are ignited, and that he has also
observed "sparks go round and round bit lugs" and that there is a
distinct difference in the two. The response he received was
"that it was a fire and it had a flame.
It was this color and it
did this" (Tr. 217).
Mr. Young stated that Mr. Tonkin and Mr. Oldaker were not
asked any questions during his interviews with the other miners.
Mr. Young also confirmed that Gary Graham was present "out in the
hall", but that he was not questioned. The questioning was
limited to "the people that was right around the continuous miner
that saw what went on" (Tr. 217). Mr. Young stated that he
distinctly remembered that Mr. Wolfe stated he saw fire, but that
Mr. Carter "was hesitant" and that "he always looked down. He
didn't look up. He didn't want to give me a direct answer"
(Tr. 218). Mr. Young stated further at (Tr. 219):
THE WITNESS: My position, was in the middle somewhere.
I had more than one person categorically tell me, "We had a
fire and ignition or ball." Then I had another guy saying,
"James, I didn't see it." I wasn't told the same thing you
were.
JUDGE KOUTRAS: Was there any inquiry made of these
miners as to what they may have told Mr. Tonkin.
THE WITNESS: There was remarks made in the room by
other people about "Wait a minute.
I didn't hear that the
other day." They would make an explanation to them but not
directed at me.
Mr. Young agreed that the testimony of the miners
during the hearing in this case was more than what he heard

457

during his investigation and he attributed this to the kinds of
direct questions asked by counsel which were not the same
questions asked during the investigation interviews (Tr. 220).
He stated that the responses to the questions asked during the
investigation were straight-forward and that no one was "wishywashy" about what was said (Tr. 221). He stated that "the
testimony given to me did not say anything about a small ball.
Just categorically, we had a flame and a fire, and that's what we
based it on".
Mr. Young stated that in view of some statements by some of
the respondent's representatives who were present during his
interviews with respect to the term "ball of fire 10 , he
specifically asked for clarification as to whether there was 11 a
flame of fire of orange color" or "a ring of sparksno The
statements by the crew that "flames were rolling back on the
roof" led him to conclude that there was an ignition (Tro 223)
0

David Allen Moore was recalled by the Court, and he stated
that when Mr. Tonkin spoke with the crew during his investigation
he told Mr. Tonkin that "I seen the flame shoot up there"
It was
hot.
It scared me 11 (Tr" 226)" When asked if he specifically
used the word "flamen, Mro Moore responded 96 Yes, fire,
Flame
fire.
I 1 d say flame.
I can°t remember exactly, but it was
either fire or flame.
I think fire and flame is the same thing,
isn't it?
I'd say flame because he asked me how big it was and
the color of it" (Tr. 226). Mr. Moore further stated that he
told Mr. Tonkin that it was "three foot high and five to six foot
wide, and it was kind of yellow and orange and real bright.
It
was hot" (Tr. 227).
Mr. Moore stated that he heard "ball of fire" discussed and
that "it just rolled like a ball of fire there, but it was three
foot high at the miner head where it was cutting". He stated
that everyone agreed that they saw "a flame shooting up the rib,
three foot high and five foot long "(Tr. 220).
Gary Lee Hayes was recalled by the Court, and he stated that
when Mr. Tonkin spoke with the crew during his investigation
Mr. Tonkin was told that "we had an ignition, that we had flame,
we explained to him how it came off the miner and how it rolled
back.
I think that's how he got to the point of a ball of fire
and everything. We didn't really know. This was the first time
we ever experienced anything like this" (Tr. 229).
In response
to a question as to how he concluded that an ignition occurred,
Mr. Hayes responded as follows (Tr. 229-230):
JUDGE KOUTRAS: Let me ask you this. How did you come
to the conclusion that this was an ignition?
THE WITNESS: This is what we've been told, that any
time that you've got fire like that in the face area, it's

458

called an ignition. That's the reason we come out with this
point was the flame that happened in the face that was set
off. We believe it was set off by the dust. This was we
called it, an ignition.
If it wasn't an ignition, the only thing I an say is it
was a flame of fire that came off the head of the miner to
the top. This is the way we reported it.
I said ignition,
but that's my own opinion of what an ignition is, a fire at
the face of a working section. That's why I've come to the
point of an ignition.
JUDGE KOUTRAS~

What does ring of fire mean to you?

THE WITNESS: A ring of fire is like miner bits hitting
sulfur and being going around the head of the miner. I've
seen this happen. I didnwt feel that was a reportable
thing.
I've seen it many a time in my years of coal mining
experience.
I've seen the bits keep hitting it. It
followed the miner hitting around. It's them bits set on an
order where they just keep hitting it, and it makes it look
like a ring of fire.
But we had flame.
It was a flame.
JUDGE KOUTRAS: That ring of fire that you have
described, would that be an ignition?
THE WITNESS:

No, I didn't say that an ignition, no.

JUDGE KOUTRAS:
Did you remember specifically telling
Mr. Tonkin that what you saw was flame?
THE WITNESS:

Yes, sir.

James W. Parker, Jr. was recalled by the Court, and he
stated that when Mr. Tonkin came to the scene on February 1, he
told Mr. Tonkin that "it was a flame going up the left-hand side
of the miner, up to the top, and rolled back from the arch over
the top toward us" (Tr. 232). Mr. Parker stated that he never
referred to the flame as a "ring of fire". He confirmed that
during the MSHA investigation of February 4, the statements made
to the inspectors were "pretty much" the same statements made to
Mr. Tonkin and he did not recall anyone refer to the flame as a
"ring of fire" (Tr. 233).
Consol's Expert Witness
Dr. Pramod c. Thakur, testified that he is employed by
Consol and is responsible for degasification of all of its mines,
control of respirable dust, and the prevention of methane and
dust ignitions. He received his early mining education in India
and holds BS, MS, and PHO degrees in mining engineering from Penn
State University and has an MS degree in applied Mathematics. He

459

is a certified mine manager, has conducted research in methane
and dust ignitions and mine ventilation, and has been involved in
investigations of ignitions (Tr. 234-237).
Dr. Thakur agreed with Inspector Young's statement that
"when you have a visible flame, it's an ignition, ignition of
something" (Tr. 237).
He stated that methane and air mixtures
will ignite, and that coal dust and air mixtures will ignite.
In
order for these mixtures to ignite there are three ingredients
that must be present, namely, (a) the right concentration, (b)
the right temperature for all ignition temperatures, and (c) the
right energy input (Tr. 238).

Dr. Thakur confirmed that based on the testimony of all of
the witnesses, which he heard in the course of the hearing, he
agreed with MSHA that no methane ignition took place on
February 1, 1991 (Tr. 239).
He was also of the opinion that it
was impossible to ignite coal dust under the circumstances
described by the witnesses.
He explained that based on the
published literature by the U.S. Bureau of Mines one would have
to have a thousand times more dust at the face than what was
present at the time of the event in question; and that the dust
would have to be ignited by an explosive charge"
No mechanical
friction of any sort can ever ignite coal dust, and that based on
all of the literature on the subject 11 it is impossible to ignite
coal dust and air mixtures with mechanical friction" (Tr. 241).
Dr. Thakur stated that sparking caused by friction will
ignite a mixture of methane and air, with a resulting flame which
is bluish in color.
Depending on the volume, "you will hear a
pop", and the flame "will rise, go to the roof".
He further
stated that "there's no way you can have a sustaining visible
flame to qualify as an ignition and go away in three seconds 11
(Tr. 241) .
In addition to the lack of sufficient coal dust, and the
impossibility of igniting coal with a.frictional emission, Dr.
Thakur stated that a "great powerful source" of energy, which is
10 to 100 times more than what is necessary to ignite a mixture
of methane and air, must be present to ignite coal dust.
He also
indicated that a coal dust explosion may be ignited if there was
an initial methane explosion which has sufficient momentum to
"kick up" the dust from the mine floor, ribs, and roof at 700
degrees centigrade or higher (Tr. 242).
Dr. Thakur stated that based on the testimony he heard in
this case from all of the witnesses he was of the opinion that
what occurred was the creation of light by the bits of the mining
machine striking quartzite or pyrite. Quartzite will oxidize
very rapidly, creating a light, and pyrite creates more light
because it oxidizes very rapidly and dissipates faster and gives
off a "more orange light". The resulting sparks, or "ring of

460

fire", is pyrite oxidizing very rapidly, and there will be more
sparking when the water is cut down. There is no ignition, no
fire, or any flame, and to anyone standing 10 to 30 feet away it
would appear to be a "ball of fire" (Tr. 245). Once the machine
is stopped, the sparks will end, and if the machine is started
again, it will happen again. He believed it was impossible to
have a coal dust ignition given the amount of methane present
(Tr. 245).
On cross-examination, Dr. Thakur stated that based on
scientific opinion and research, it was his opinion that it is
impossible to ignite coal dust py mechanical friction, and he
explained what is necessary to ignite an airborne mass of coal
dust (Tr. 246-248)0 He further stated as follows at (Tro 249)~
Q.
You mean to tell me then that it is your position, when
you heard these employees testify, that it was just some
kind of sparkso

A. There was all this sparking and because of a lack of
water it became a very -- what should I say -- large number
of particles were createdo They were all oxidizing very
rapidly and they glowedo They created a source of lighto
As I said, this was the mechanism they used in army days t.o
light the mines. The people used to work in the light of
the sparking wheels.
Q.
I know what you are saying about sparks and so forth.
These people said they saw a flame.

A. You also realize -- I don't want to put them down -they had never seen a real ignition before.
But they have seen a flame before, have they not?
have seen a flame.

Q.

I

A. Yes. But what they thoug:ti.17 was a flame, in my opinion,
was not a flame.
Dr. Thakur acknowledged that sparking is a potential source
of ignition, and he cited a fatal incident in Nova Scotia caused
by frictional ignition. However, he believed that the real
ignition source in that event was the presence of a lot of
methane and using mechanical means to cut the coal (Tr. 251). He
believed that if there is no methane there will be no coal dust
explosions, and he stated that "the only way they ever have coal
dust explosion is if they were shooting coal or there was a freak
of several methane explosions" (Tr. 253). Dr. Thakur concluded
his testimony as follows at (Tr. 258-259):
THE WITNESS: The only thing I would submit, Your
Honor, to you is that if a mechanism is creating so-called

461

sparks, as soon as you stop that mechanism the sparks stop.
That's not an ignition.
For an ignition to be called an ignition, something has
to be ignited, something which would sustain a visible flame
for some duration of time, even it is five or ten seconds.
I respectfully submit to you that what they saw was a
big mechanical wheel cutting into pyrite, creating fine
particles, and creating a lot of heat which oxidized those
particles. They glowed, and they glowed like a ball of
fire.
The moment you stopped that machine the phenomenon
ended. There was nothing ignited, and, thereforeq there was
no ignition. I would have taken the same action as Mr. Dave
Tonkin did if I were the mine superintendent.
was not a
reportable accidento
Findings and Conclusions
Fact of Violationo Citation Noa 3105295, 30 C.F.R.

§

50.10

Consol is charged with a violation of 30 CoFoR. § 50ol0; for
failing to report the alleged ignition which the inspector
believed occurred on February 1, 1991. Section 50.10 provides as
follows:
§

50.19 Immediate notification

If an accident occurs, an operator shall immediately
contact the MSHA District or Subdistrict Off ice having
jurisdiction over its mine. If an operator cannot contact
the appropriate MSHA District or Subdistrict Office it shall
immediately contact the MSHA Headquarters Off ice in
Washington, DC by telephone, toll free (202) 783-5582.
I take note of the fact that the citation issued by
Inspector Young contains language which suggests that Consol was
required to report the results of its investigation of the
incident of February 1, 1991, to MSHA, and that it also failed to
contact MSHA to obtain information to determine whether "the
occurrence" needed to be reported. During the course of the
hearing, Mr. Young testified that Consol was obliged to report
"anything, regardless of what it was" (Tr. 36). However,
contrary to the inspector's belief, Consol's only legal
obligation pursuant to section 50.10, was to immediately report
an "accident". The definition of an "accident" found at section
50.2(h) (5), includes an unplanned ignition or explosion of gas or
dust. The citation alleges that a dust ignition occurred on the
11 left working section on February 1, 1991, and the issue
presented is whether a coal dust ignition in fact occurred, or

462

whether the occurrence in question was something other than a
reportable ignition.
Neither the Act nor the regulations further define ignition.
However, the Dictionary of Mining, Mineral, and Related Terms,
U.S. Department of the Interior, 1968 Edition, provides the
following relevant definitions:
Ignition • . . . • The act of igniting, or the state of
being ignited; An outburst or fire or
an explosion.
(Pg. 569).
Coal mine
ignition

The burning of gas and/or dust without
evidence of violence from expansion of
gases o
(Pg. 2 2 5) .

o

Webster 1 s Third New International Dictionary (Unabridged),
provides the following relevant definitions:
Ignite . . .

Ignition . .

. . To subject to fire or intense heat; to
heat up; to catch fire; to begin to glow~
become luminescent.
(Pg. 1125).
o

•

The act or action of igniting; subjection
to the action of fire or intense heat;
setting fire.
(Pg. 1125).

Luminescence . . An emission of light that is not ascribable
directly to incandescence and therefore
occurs at low temperatures, that is produced
by • . . friction, . . . by certain bodies
while crystallizing.
(Pg. 1345).
(Similarly defined by the Mining Dictionary,
at pgs. 662-663).
Luminous . . •

full of light; .. emitting or seeming to emit a
steady suffused light that is reflected or
produced from within.
(Pg. 1345).
Radiating or emitting light; bright; clear.
(Mining Dictionary, at pg. 663).

In support of its conclusion that an ignition in fact
occurred on February 1, 1991, MSHA relies on the testimony of
Inspector Young, including his report of investigation, and the
testimony of the miners who witnessed the February 1, 1991, event
and who were subpoenaed to testify at the hearing in this case.
With regard to the investigation conducted by Mr. Young and
Mr. Tulanowski, and the report which they prepared are concerned,
as I noted in the course of the hearing, the investigation and
the report leave much to be desired and are of little credible or
evidentiary value (Tr. 43-47; 76-78; 150-153; 175-180).

463

The record reflects that the "statements" purportedly given
to the inspectors during their investigation were in fact verbal
summaries of the questions asked by Inspector Tulanowski and the
responses recorded by Inspector Young as part of his investigative notes. However, the notes were not produced at the
hearing and they are apparently lost and not available. Further,
it would appear that none of the miner "statements" were reduced
to writing or signed by the miners who purportedly gave them,
they were not sworn, and I take note of the fact that the miners
were interviewed in groups rather than individually and in
private. One potentially critical witness (Foreman Gary Graham),
who reportedly commented on February 1, 1991, that he smelled
smoke when he arrived at the scene was not called to testify at
the hearing, and although Mr. Graham was present during the
interviews of February 4, 1991, Inspector Young confirmed that he
was asked no questions (Tr. 217) o
Mro Young confirmed that he and Inspector Tulanowski only
prepared part of the report of investigation, and that the rest
of the report was prepared by other unidentified MSHA officials.
Mr. Young acknowledged that he and Mr. Tulanowski did not sign
the report, and he could not state who initialed and signed the
report over their typewritten names. Although the name nnavid N.
Wolfe" appears over Mr. Young 1 s typed name, Mr. Young confirmed
that he did not know Mr. Wolfe (Tr. 43). Mr. Young also did not
know who changed pg. 3 of the report by scratching through the
word "methane" and inserting "frictional dust", and he believed
the change was made to correct a typographical error.
Three eyewitnesses to the incident of February 1, 1991, gave
rather graphic and detailed sworn testimony as to what they
observed. Continuous miner operator Parker, who has worked for
Consol for 19 years, and roof bolter Hayes, with 18 years of
experience in the mines, testified that they observed a flame
from the miner machine head travel up to the roof and roll back
over the machine before it extinguished itself. Mr. Parker was
operating the machine and Mr. Hayes was standing to the front of
Mr. Parker, approximately 12 feet from the miner head.
Mr. Parker recorded his observation in his personal notes made 5
or 10 minutes after the event, and while the notes do not mention
any "flames rolling back" they do mention an "orange and yellow
ball of fire" lasting 3 to 5 seconds, and Mr. Parker explained
that the flames he saw resembled a "ball of fire" as they rolled
back and that is why he characterized it as such in his notes.
Further, Mr. Parker and Mr. Hayes, both of whom had previously
observed sparks and sparking in their mining experience, denied
that what they actually saw were sparks, and they were rather
emphatic that they observed a flame, and their testimony in this
regard remained consistent when later recalled by the court in
the course of the hearing.

464

Roof bolter David Moore, with 18 years of mining experience,
testified consistently on direct and on recall by the court that
after sticking his head around the corner of the entry to get
some fresh air he turned around and saw a flame travel up the
coal rib from the head of the miner machine, and he described the
flame as bright orange and yellow. He also stated that he could
feel the heat. Mr. Moore, Mr. Parker, and Mr. Hayes all insisted
that during management's inquiry on February 1, 1991, they told
Mr. Tonkin that they had seen a flame. Mr. Tonkin confirmed that
he made no notes of the discussions with the crew and he
apparently did not prepare any report of his inquiry. He
testified that the three miners told him they saw "a fireballn
near the bits of the miner machine, and he confirmed that the
three miners told the MSHA inspectors on February 4v 1991v that
they had seen flames (Tr. 194).
In support of its conclusion that what the miners actually
saw on February 1, 1991, was not a flame or an ignitionv but
sparking which often occurs when the bits of the miner machine
strike sulfur or pyrite while mining with insufficient water in
the machine, Consol relies on the eyewitness testimony of
longwall foreman Kevin Carter, section foreman Robert Wolfe, and
its expert witness and employee Dr~ Thakur, Consol also relies on
the testimony of Mr. Tonkin and Mr. Oldaker, the management
officials who conducted the inquiry of February 1, 1991.
Mr. Carter testified that he saw "just a glow near the bits"
of the miner machine, but he acknowledged that "whatever" he saw
was brief, that he was looking in several different directions in
response to the yelling by crew members, and that he was
positioned at the rear of the miner looking away from the face,
and that he did not actually see what had happened. Mr. Carter
also confirmed that at the time of the incident, Mr. Hayes and
Mr. Moore told him that they saw fire on the left side of the
miner at the bits, and he believed that the miners told the MSHA
inspectors that they saw flames.
Mr. Carter acknowledged that
given their long years of experience in the mines, and the fact·
that sparking and glowing is not particularly unusual, the miners
saw "something more than they had seen before or they would not
have panicked" (Tr. 159).
Mr. Wolfe testified that he saw no flames, and it was his
opinion that what the crew actually saw was an unusual sparking
event caused by the miner bits striking pyrite. He believed that
the lack of water in the machine caused unusual sparking which he
characterized as "a ball of sulphur gas sparks" (Tr. 168).
Mr. Wolfe further testified that at the time Mr. Tonkin spoke
with the crew on February 1, 1991, no one said anything about
seeing any flame.
Mr. Wolfe denied that he ever made any
statements to anyone that he saw flames. However, in response to
a question from the court concerning the information at page 3 of
the MSHA report of investigation which states that he "observed

465

an orange flame measuring approximately 3 feet tall and 6 feet
wide, at the miner ripper head", Mr. Wolfe stated that based on
his own mining terminology, an orange flame is the same as a
spark (Tr. 176).
Mr. Tonkin did not witness the event of February 1, 1991.
Mr. Tonkin was summoned to the area by Mr. Graham who told him
that "they might have had an ignition". Upon arriving at the
scene, Mr. Tonkin found no physical evidence such as soot,
cinders, or ash.
Based on his discussions with the crew,
including statements by Mr. Hayes and Mr. Moore that they saw 0 a
fireball at the bits of the miner", Mr. Tonkin concluded that an
ignition had not occurred, and that the crew had only observed uia
ball of fire". Mr. Tonkin conceded that Mr. Parker may have seen
a flame, but he insisted that none of the miners told him that
they saw any flames. Mr. Tonkin stated that he would consider a
flame to be an ignition, but that based on the terminology that
he
used to, a ball of fire that is caused by sulfur is not
classified as an ignition (Tr. 195).
Mr. Oldaker did not witness the event, and he was summoned
to the area by a telephone caller who informed him of uia possible
ignitionn. Mr. Oldaker saw no evidence of any ignition 1 and
while he was present during the MSHA interviews with the crew, he
confirmed that he did not sit in on any of the "testimony u and
may have been in and out of the room. He denied hearing anyone
say anything about the presence of flames, and his conclusion
that everyone saw "a ball of fire" was based "more or less" on
what he believed was a consensus view of the crew.
Dr. Thakur agreed that a visible flame would indicate that
an ignition has occurred, and he confirmed that given the right
concentration, temperature, and energy input, a mixture of coal
dust and air will ignite. However, based on the testimony of the
witnesses, he did not believe that an ignition occurred. He
concluded that the employees saw sparks or a ball of fire created
by the miner bits cutting into ~yrit~. This produced a lot of
heat which oxidized the fine pyrite particles, and which resulted
in a glow and the creation of a source of light.
Dr. Thakur
further concluded that it was impossible to ignite coal dust and
air mixtures with mechanical friction.
Although it may be true that the subpoenaed miners who
testified under oath during the hearing disclosed more than what
they may have previously stated to Mr. Tonkin, I find no reason
for disbelieving their testimony. Mr. Tonkin confirmed that he
got along well with the miners, and although he suggested that
the union safety committee may have put pressure on them to
embellish their stories because the committee did not get along
with management, I find no credible evidence to support any such
conclusion.

466

Although Mr. Tonkin impressed me as a candid and credible
individual, and Inspector Young believed him to be a truthful
person, it would appear to me that the "investigation" conducted
by Mr. Tonkin on February 1, 1991, was more of a group discussion
and rather cursory, and he took no notes and prepared no written
report of what may have been said. Under the circumstances, I do
not find it unusual that critical facts remain unresolved and
undocumented, and that individual perceptions and recollections
as what may have been said has changed over time. Nor do I find
it unusual that miners subjected to a management inquiry, and in
the presence of foreman and other management officials, sometimes
have a tendency to remain noncommittal, particularly when they
are not placed under oath and are not called upon to testify in a
formal hearing away from their working mine environment.
After careful review and consideration of all of the
testimony in this case, and having viewed all of the witnesses
during the course of the hearing, I conclude and find that
Mr. Parker, Mr. Hayes, and Mr. Moore are credible witnesses and I
believe their testimony that they observed a flame of rather
short duration coming from the miner machine bits at the head of
the machine and rolling up and over the machine. Their
description of the flame is consistent with the aforementioned
dictionary definitions of the terms 11 ignite 11 and 19 ignitionH ~ and
I do not find their testimony to be in conflict with the
testimony of Mr. Tonkin, who confirmed that the presence of a
flame is in fact an ignition, and the testimony of Dr. Thakur,
who testified that a visible flame would indicate that an
ignition has occurred.
Although I find Dr. Thakur to be a knowledgeable and
credible individual, his opinion that an ignition did not occur
was based on his belief that what the miner eyewitnesses saw was
"some kind of sparks" which they thought was a flame, rather than
on his personal observation of the same event. Dr. Thakur
acknowledged that a spark was a potential source of ignition, and
his testimony that sparking caused :p_y rapid oxidizing and a lack
of water would create a "source of light", or heat, and a glow
which would appear "like a ball of fire" are characteristics
similar in some respects to those found in the dictionary
definitions of an ignition.
Although Dr. Thakur initially stated that it was impossible
to ignite coal dust by mechanical friction, he later confirmed
that he was familiar with accidents and explosions that have
occurred because of frictional dust ignitions (Tr. 251).
Further, although Dr. Thakur stated that "there's no way you can
have a sustaining visible flame to qualify as an ignition and go
away in three seconds" (Tr. 241), he later testified that ''for an
ignition to be called an ignition, something has to be ignited,
something which would sustain a visible flame for some duration
of time, even if it is five or ten seconds" (Tr. 259). Under all

46 7

of these circumstances, I remain unconvinced that frictional coal
dust ignitions are impossible under any and all circumstances.
In any event, the issue here is whether or not the testimony of
the eyewitness miners is credible and supports any reasonable
conclusion that what they saw of February 1, 1991, was a flame,
and whether or not that flame was a coal dust ignition which was
required to be immediately reported to MSHA pursuant to 30 C.F.R.
§ 50.10.
I have concluded and found that what the miners
observed was a flame.
I further conclude and find that the flame
which they observed constituted an unplanned coal dust ignition
which was required to be immediately reportedo Accordingly,
since it was not reported to MSHA, a violation has been
established and the citation IS AFFIRMED.
Fact of Violationo

Citation Noo 3105296, 30 CoFoRo

§

50ol2o

Consol is charged here with a violation of section 50ol2 9
because it permitted mining to continue after the occurrence of
the ignition on February 1, 1991, and failed to obtain MSHAis
permission before disturbing or changing the area where the
ignition occurredo Section 50.12, provides as follows~
§

50ol2 Preservation of evidenceo

Unless granted permission by a MSHA District Manager or
Subdistrict Manager, no operator may alter an accident
site or an accident related area until completion of
all investigations pertaining to the accident except to
the extent necessary to rescue or recover an
individual, prevent or eliminate an imminent danger, or
prevent destruction of mining equipment.
Consol does not dispute the fact that after the conclusion
of Mr. Tonkin's inquiry on February 1, 1991, mining was allowed
to continue and the miner machine was advanced past the area
where the ignition had occurred and the area was cleaned up and
rock dusted. The record reflects that when foreman Graham
initially arrived at the scene, he ordered all mining to cease
and that nothing be disturbed until Mr. Tonkin arrived.
Mr. Tonkin subsequently permitted mining to continue after he
concluded from his discussions with the crew that an ignition did
not occur. Mr. Tonkin maintained that no one initially mentioned
that they had seen any flame, and coupled with the lack of any
physical evidence of any ignition, he made the decision that a
reportable accident (unplanned coal dust ignition) did not occur
and that the incident was not required to be reported. Under
these circumstances, he allowed mining to continue.
In view of my finding that a reportable accident (unplanned
coal dust ignition) occurred and was not immediately reported to
MSHA, I further conclude that Consol's continuation of mining,
which resulted in the alteration of the scene of the ignition

468

without MSHA's permission, constitutes a violation of
section 50.12. Although it is true that foreman Graham acted
promptly by discontinuing any further mining and preserving the
scene until Mr. Tonkin's arrival, and Mr. Tonkin may have in good
faith believed that an ignition had not occurred, I conclude that
these factors may be considered in mitigation of the violation,
but may not serve as an absolute defense to the violation. Under
the circumstances, I conclude and find that a violation has been
established, and the citation IS AFFIRMED.
Size of Business and Effect of ·civil Penalty Assessments on the
Respondent's Ability to Continue in Business
I adopt as my findings the stipulations by the parties that
Consol is a large mine operator and that the payment of civil
penalty assessments for the violations in question will not
adversely affect its ability to continue in business.
History of Prior Violations
An MSHA computer print-out listing Consol's history of prior
violations for the period August 23 1 1989 9 through August 22,
1991, reflects civil penalty payments in the amount of $221, 247,
for 797 violations. One prior single penalty assessment of $20
for a violation of 30 C.F.R. § 50.10, issued on September 19,
1989, is included in this history. MSHA's pleadings reflect that
Consol's overall annual coal production for civil penalty
assessment purposes was 49,368,060 tons, and that the Robinson
Run No. 95 Mine had an annual production of 1,856,689 tons.
Although I cannot conclude that Consol's history of prior
violations is particularly good, for an operation of its size, I
cannot conclude that additional increases in the civil penalty
assessments that I have made for the two violations which have
been affirmed, are warranted. However, I have considered the
history, as well as the other penalty criteria, in assessing the
penalties for the violations.
Good Faith Compliance
The parties stipulated that Consol abated the violations in
good faith.
The record reflects that corrective action was
immediately taken and that the inspector terminated the citations
within an hour after they were issued. Under the circumstances,
I conclude and find that Consol exercised rapid good faith
compliance in correcting the cited conditions and I have taken
this into consideration.
Gravity
The inspector found that both violations were not
significant and substantial. The evidence establishes that no
significant amounts of methane were present and that the area

469

where mining was taking place was in good condition. Further,
the flame in question only lasted for approximately three seconds
and there were no injuries. Although these factors concerning
the prevailing mining conditions mitigate the gravity of the
violations, I nonetheless conclude that the failure to report an
ignition and to allow mining to continue without notice to MSHA
and without its approval are serious violations.
Negligence
The inspector found that the violations resulted from a
"high" degree of negligence, and he based these findings on his
belief that mine management made no effort to contact MSHA for
the purpose of reporting the incident or seeking information as
to how to proceed further (Tr. 22-23).
Taking into account Mr. Tonkin 9 s denials that the miners
specifically told him that they had seen flames when he initial
spoke to them on February 1, 1991, I nonetheless find that all of
the indicia of a reportable ignition were present when Mr. Tonkin
came to the opposite conclusion. Mr. Tonkin conceded that the
miners told him that they had seen a ball of fire.
Foreman
Carter confirmed that at the time of the incident he was told
miners Hayes and Moore that they saw fire at the left side of the
miner machine bits, and Mr. Carter himself testified that he had
briefly observed a glow. Foreman Wolfe, who claimed that what
the crew saw was sparks, was of the view that a spark was the
same thing as a flame, an he did not deny the statement
attributed to him in MSHA's accident report which indicates that
he saw an "orange flame". Mr. Tonkin agreed that if a flame were
indeed present, an ignition occurred. Under all of these
circumstances, I conclude that Mr. Tonkin acted less than
reasonable when he based his conclusion that an ignition had not
occurred solely on the fact that the miners may not have
specifically informed him that they had observed a flame.
I
further conclude and find that the failure by mine management to
immediately report the matter to MSHA and to preserve the scene
until MSHA could look into the situation supports the inspector's
high negligence findings and they ARE AFFIRMED.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section llO(i) of the Act, I conclude and find that the
following civil penalty assessments are reasonable and
appropriate for the violations which have been affirmed:
Citation No.
3105295
3105296

2/4/91
2/4/91

30 C.F.R. Section

Assessment

50.10
50.12

$500
$350

470

ORDER
Docket Nos. WEVA 91-166-R and WEVA 91-167-R
Consol's contests are DENIED and DISMISSED.
Docket No. WEVA 92-177
Consol IS ORDERED to pay civil penalty assessments in the
amounts shown above for the two citations which have been
affirmed.
Payment is to made to MSHA within thirty (30) days of
the date of this decision and order"
My previous Stay Order of February 4, 1992, staying
excessive history section 104(a) Citation No. 3102243, August 22,
1991, 30 C.F.R. § 75.400, remains in effect and the citation IS
STAYED pending the Commission's decisions in Drummond Coal Co.,
Inc., 13 FMSHRC 339, and 13 FMSHRC 356 (March 1991) 1 and Zeigler
Coal Company, 13 FMSHRC 367 (March 1991)"

$~~~
Administrative Law Judge

Distribution:
Walter J. Scheller, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Wanda M. Johnson, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite 516, Ballston Towers #3, 4015 Wilson Boulevard,
Arlington, VA 22203
(Certified Mail)
/ml

471

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 101992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 91-1801
A.C. No. 46-05480-03815 A

v.
Dobbin Mine
CHARLES E. CARPENTER,
Employed by
ISLAND CREEK COAL COMPANY,
Respondent
DECISION APPROVING SE'IT.LEMENT
Appearances:

Edward H. Fitch, Esq.p Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia?
the Petitioner;
Paul J. Harris, Esq,. Wallace, Ross & Harris,
Elkins, West Virginia, for the Respondent.

Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section llO(c) of the Federal Mine Safety and
Health Act of 1977 (the Act). The petition had previously been
modified by the Secretary's withdrawal of charges against
Mr. Carpenter under Order No. 3111274. At hearings on the
remaining charges under Order No. 3111276, the Secretary filed a
motion to approve a settlement agreement and to dismiss the case.
A reduction in penalty from $1,200 to $350 was proposed. I have
considered the representations and documentation submitted in
this case, and I conclude that the proffered settlement is
appropriate under the relevant criteria set forth in Section
110(i) of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that Respondent pay a penalty of $350. Payment
shall be made in monthly installments of $50 comme cing April 1,
1992.
i
I

A

/,

I

I

/

.LI

i

M1
t

!

l

1

1

G~ry
'bk
/
A{iminiff rative taw

(
•,{'

"
472

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

MAR 1t1992
SECRETARY OF LABOR, MSHA,
on behalf of
ROBERT W. BUELKE,
Applicant

.
.

DISCRIMINATION PROCEEDING
Docket No. WEST 92-243-DM
WE MD 91-15
Rabbit Creek Mine

Vo

SANTA FE PACIFIC GOLD
CORPORATION,
Respondent
DECISION

AND
ORDER OF TEMPORARY REINSTATEMENT
Appearances~

Gretchen M. Lucken 0 Esq. u Office of the Solicitoru
UoSo Department of Labor 0 Arlington 0 Virginiav

for A.pplican t;
Charles w. Newcomb, Esq., Denver, Colorado,
for Respondent.
Before:

Judge Cetti

This discrimination proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et~ (1988)
11
(
Mine Act"). Section 105(c} of the Mine Act, 30 U .s.c. § 815(c)
{1988), prohibits operators of mines from discharging or otherwise discriminating against a miner who has filed a complaint
alleging safety or health violations at a mine.
If a miner believes that he has been discharged ..i.n violation of this section,
he may file a complaint with the Secretary of Labor ("Secretary"), who is required to initiate a prompt investigation of the
alleged viola ti on.
If the Secretary finds that the miner's complaint was "not frivolously brought, 11 she must apply to the Federal Mine Safety and Health Review Commission ("Commission") for
an order temporarily reinstating the miner to his job, pending a
final order on the complaint.
The Commission is required to
grant such an order if it finds that the statutory standard has
been met.
Al though the Act does not ra:;ruire a hearing on the Secretary 1 s application for temporary reinstatement, the Commission's
regulations provide an opportunity for a hearing upon ra:;ruest of
a mine operator, prior to the entry of a reinstatement order.
See 29 C.F.R. § 2700.44(b) (1990).
The scope of such a hearing

473

is limited to a determination by the Administrative Law Judge "as
to whether the miner's complaint is frivolously brought," with
the Secretary bearing the burden of proof on this standard.
Factual and Procedural Background
On February 7, 1992, the Secretary pursuant to Section
105(c) (2) of the Mine Act and Commission Rule 29 C.F.R.
§ 2700.44(a), filed an application for an order requiring Respondent, Santa Fe Pacific Gold Corporation ("Pacific Gold") v to
temporarily reinstate Robert W. Buelke to his job as an electrician at Pacific Gold, Rabbit Creek Mine from which he was discharged July 1, 1991.
On August 6v 199lv Mro Buelke filed his discrimination complaint with MSHA at the Reno tield otfice. His complaint in part
reads as follows:
Io

Have worked as a mine electrician approximately 15 yearso
Resume Attachedo

IIo

Have had numerous encounters with supervisors in trying to get electrical installations done correctly, or repaired correctly;
have tried to get them taken care of "in
house", written a couple of letters/reports
of concern, and have been put down and fired
mainly because of these -- see attached letter.
If you need any additional information, please
feel free to contact me.
Thank you for your concern, time and consideration.
Sincerely,

/s/

Robert w. Buelke

cc:

Perry Tenbrink
Ray Nicholson

The application for temporary reinstatement states that the
Secretary has determined that the Respondent's discharge of
Robert W. Buelke was motivated by his protected safety activity
and that this constitutes an act of illegal discrimination which

4 74

provided the basis for a non-frivolous cause of action under Section 105(c)(2) of the Act. Attached to the application is an
affidavit setting forth the factual basis for the Secretary's
determination.
The affidavit reads as follows:
AFFIDAVIT
James E. Belcher, being duly sworn, deposes
and states:
1. I am the Chief, Office of Technical Compliance and Investigation Division, Metal and
Nonmetal Safety and Health"
2. I am responsible for reviewing discrimination complaints filed pursuant to the Federal Mine Safety and Health Act of 1977 C"the
Mine Act")" I have reviewed the special investigation file in the above-captioned case.
3. My review of the investigative file disclosed the following facts:
a. At all relevant times, Respondent,
Santa Fe Pacific Gold Corporation, engaged in
the production of gold and is therefore an
operator within the meaning of Section 3(d)
of the Mine Act;
b. At all relevant times, Applicant,
Robert W. Buelke, was employed by Respondent
as an electrician and was a miner as defined
by Section 3 (g) of the Mine Act;
c. Rabbit Creek Mine, located near
Winnemucca, Humboldt County, Nevada, is a mine
as defined by Section 3 ( h) of the Mine Act, the
products of which affect interstate commerce;
d.
The alleged act of discrimination
occurred on July 1, 1991, when Applicant
Robert w. Buelke was discharged by Perry
Tenbrink, f.bintenance Supervisor;
e. Applicant Buelke engaged in protected activity by making numerous safety com-

475

plaints to managanent concerning electrical
equipment and by submitting letters to Mine
Manager Michael Surratt on January 23, and
May 13, 1991. The letters detailed safety complaints by Buelke concerning electrical e:;i:uipment;
f. The letters concerning safety complaints were received with hostility. Buelke
was told that he had no business writing letters to mine managemento Buelke 9 s supervisors
became hostile in tone and work assignments
after the letters were submitted~
g.
On May 29 0 1991 0 Buelke was given
a step one disciplinary notice allegedly for
failing to correct an electrical grounding problem in a timely manner.

h. The Respondent 1 s articulated basis
for the May 29 0 1991 0 disciplinary action was
pretextual.
i. On July 1, 1991, having been absent for one week due to legitimate illness,
Buelke received three disciplinary notices for
violation of the one hour rule which req:uires
employees to call in sick at least one hour
prior to the start of the shift.
j. Buelke suffered disparate treatment, as other anployees violated the one hour
rule and received no disciplinary action or
less severe action.
4. In view of the foregoing facts, I have
determined that the Applicant Robert W. Buelke
was discharged for engaging in protected safety
activity and the complaint filed by him is not
frivolous.

/s/
James E. Belcher
Taken, subscribed and sworn before me this
3rd
day of February, 1992.
catherine L. Falarko
Notary Public

4 76

Stipulations
1. Jurisdiction of this action is conferred upon the Federal Mine Safety and Health Review Commission pursuant to Section
113 of the Act 1 3 0 U • S • C • 8 2 3 .
2.
This action is brought by the Secretary of Labor (Secretary) pursuant to authority granted by Section 105(c)(2) of the
Act, 30 U.S.C. 815(c) (2).
3.
The Administrative Law Judge has jurisdiction to hear
and decide this mattero
4. At all relevant times hereinafter mentionedp Respondent
Santa Fe Pacific Gold Corporation, a New Jersey corporationu
authorized to do business in Nevada operated the Rabbit Creek
Mine in the production of gold and is therefore an ~'opera tor 11 as
defined by Section 3(d) of the Act, 30 u.s.c. 802(d).
5.
Respondent's Rabbit Creek Mine, located in or near
Winnemucca, Humboldt County, Nevadav is a surface metal minev the
products of which enter commerce within the meaning of Sections
3(b}, 3(h} 17 and 4 of the Actv 30 UoS,,Co 802(b), 802(h)v and 8030
6. At all relevant times, Complainant Robert W. Buelke, was
employed by Respondent as an electrician and was a miner as defined by Section 3(g) of the Act, 30 u.s.c. 802(g).
7. Buelke was employed as an electrician at the Rabbit
Creek Mine from June 6, 1990, until his discharge on July 1,
1991.
8. At all relevant times hereinafter mentioned, Perry
Tenbrink was maintenance supervisor for the Respondent at the
Rabbit Creek Mine and as such supervised miners a.uployed at the
mine. Mr. Buelke was discharged by~maintenance supervisor Perry
Tenbrink on July 1, 1991.
Applicant's Evidence
Mr. Buelke testified that he was concerned about employee
safety; that he made numerous safety complaints to management
concerning electrical e::;iuipment.
He wrote two letters detailing
safety complaints, to the mine manager, Mr. Surratt.
'lbe first
letter dated January 23, 1991, a memorandum with the heading
Internal Correspondence, reads as follows:

477

Whereas I"m the only MSHA Electrician on the
Rabbit Creek Mine Site, and not in a position
to advise, design, or change many of the electrical installations here, I would appreciate
your naming someone who is responsible and liable for all electrical installations, and operations. Under MSHA regulations, and being a carded MSHA electrician, I automatically become totally liable for all electrical installations,
and operations should there be any violations of
the codes or accidents, unless I have a written
notice from you relieving me of this responsibility and specifically naming someone else0
Since this mine has been in operation for 6
months and turned over from the constractor to
Rabbit Creek and we are now coming under full
MSHA jurisdiction, I'm obligated as a MSHA
electrician to shut down and tag out (until
corrected) any electrical equipment that is in
violation of the code and/or a safety hazardo
I would appreciate a reply before February l v
1991 thereafter I will be obligated to carry out
my duties.
Mr. Buelke's second letter, addressed to David Wolfe, the
Head of the Safety Department, dated Ma.y 13, 1991 reads as
fallows:
Whereas it has been a very busy time since
our last meeting, around the first of March,
with off site schools, new used trucks, a new
P&H shovel, and general maintenance on the
rest of our fleet, I regret that I have not
been able to get a list of, electricial (sic)
problem areas, to your attention, before this
time. I have decided, due to my limited time
available to research and verify each problem,
that I will try to get a list of three problems
to you each month, for you to get corrected or
verified.
The following three i terns are sul:xni tted for
your verification and corrective action this
month:

478

1. The need for a static ground line on the
34,500 volt pit-shovel supply line for the
following reasons:
a.

Common safety practive. (sic)

b.
Required by MSHA in all mines (metal
or non-metal) and strictly enforced in th~
Midwest - even the iron mines.
c. Falls under the N.E.C. Section 250 on
grounding as high-lited on attached copies.
2.
The need to correct the Main 375Kw/480v
Pit Generator feed for the following reasonsg
a.
The generator output leads have been
changed and no longer meet code Section 445;
high-lited.
b. A second branch circuit is req:uired
to protect the 2/0 pump cable Section 240u
high-lited.
c. Pump must be additionally (separtly)
(sic) grounded or cable must be provided with
ground check monitor, Section 250.
3.
The need to correct the new 4160/480 volt
pit-pump transformer/distribution panel (located on the lower hopper level) for the following
reasons:
a. All service panels over 1000 amp must
be protected with Ground.Fault Interupter breaker, Section 230 and 240, high-lited.
b. A main disconnect means shall be provided on all service panels over 6 circuits
(present 7 - and has additional spaces available), Section 230.
If you need any additional information, please
feel free to contact me.
'!bank you for your concern, time, and consideration.

4 79

Mr. Buelke also testified that his concern for enployee
safety from electrical hazards due to improper grounding of the
substation, led him to tag a.it the substation on May 14, 1991,
and again on May 20, 1991. He stated that the improper grounding
could result in serious injury or death.
It is Applicant's position that Pacific Gold took adverse
action against Mr. Buelke in the form of disciplinary notices and
the July 1, 1991, discharge.
On May 29, 1991, Mr. Buelke received a step-one disciplinary notice allegedly for failure to correct a grounding problen on the substation in a timely manner
while time permitted. The electrical log book entries, and the
testimony of Mr. Buelke and Mr. Brabank indicated that Mr. Buelke1s actions were consistent with good practice and that
Mr. Buelke acted diligently and responsibly with regard to the
substation.
The Applicant contends that the May 29u 199lv disciplinary notice was pretextual, and that Mr. Buelke was in fact
punished for engaging in protected safety activity, including his
previous safety complaints and tagging out the substation to ensure proper grounding on May 20v 1991.
Testimony was presented at the hearing that tended to show
that Mr. Buelke has a good work record and has never been disciplined in any way prior to May 29, 1991, concerning performance of
his duties. Mr. Buelke has on occasion been called out to perform electrical work that more senior electricians could not
perform.
Mr. Buelke received three consecutive disciplinary notices
on July 1, 1991, for failure to report off sick prior to one hour
before the start of the shift, which allegedly formed the basis
for his discharge. Mr. Buelke testified as to matters that appear to be mitigating circumstances. Evidence and arguments were
presented to show that other employees violated the one hour rule
and received no or less severe disciplinary action.
'lbe evidence
shows that Mr. Buelke received the three disciplinary notices on
the same day without any verbal warning or discussion, after returning from a legitimate illness of which the compnay was aware.
The evidence indicated that Mr. Buelke had no history of lateness
or absenteeism and had never been disciplined in any way for attendance problems prior to July 1, 1991, the date of his
discharge.
Special Investigator David Brabank, Western District, MSHA,
testified concerning the conduct of the 105(c) investigation,
including the purpose and scope of the investigation. Mr. Brabank testified as to information he obtained with respect to
disparate treatment in the enforcement of the one hour reporting

480

rule. Mr. Brabank testified as to why in his opinion, based on
the special investigation, the complaint is non-frivolous.
Respondent's Position
Respondent's position broadly stated is that Mr. Buelke did
not engage in protected activity and adverse actions taken
against him were not motivated by that activity and in any event
Mr. Buelke's job-related misconduct warranted the termination of
his employment under company policies.
Respondent asserts that Mr. Buelke was properly discharged
for receiving two or more disciplinary notices within 12 months
in accordance with company policy.
Conclusion
At the conclusion of the hearing in this matter on February 27u 1992 1 after reviewing all the evidence and arguments
presentede I ruled from the bench that the Secretary had made a
sufficient showing and I granted the application for an Order of
Temporary Reinstatement.
I hereby affirm in writing the oral
ruling made from the bench.
The bench order orally issued
February 27, 1992, was substantially as follows:
ORDER
My ruling in this matter is limited to the single issue of
whether Mr. Buelke's application for temporary reinstatement is
frivolously brought.
I heard the testimony of only two witnesses, both presented by the Solicitor.
I see no reason to doubt
their credibility. Evaluated against the "not frivolously
brought" standard, I conclude that the Secretary has made a
sufficient showing of the elements of a complaint under Section
105Cc) of the Act.
Theretore, the application for an Order of
Temporary Reinstatero.ent of Robert W. Buelke is GRANTED.
Respondent is ORDERED to immediately reinstate
Mr. Buelke to his position as electrician from which position he
was discharged, at the same rate of pay, and with the same or
equivalent duties assigned to him immediately prior to his
discharge.
As previously stated the scope of this temporary reinstatement hearing is limited to my determination as to whether
Mr. Buelke's discrimination complaint is frivolously brought.
The Respondent will have a full opportunity to respond, and the
parties will be afforded an opportunity to be heard on the merits

481

of the discrimination complaint filed.
The parties will be notified as to the time and place of any hearing requested on the
discrimination complaint.

Aug t F. Cetti
Administrative Law Judge

Distribution:
Gretchen M. Lucken, Esq., Office of the Solicitor, u.s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Robert w. Buelke, 7110 Stratus, Winnemucca, NV 89445
CCertified Mail)
Charles w. Newcomb, Esq., SHERMAN & HOWARD, 633 17th Street,
Suite 3000, Denver, CO 80202 (Certified Mail)

sh

482

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

MAR 111992

CIVIL PENALTY PROCEEDINGS

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

Docket Noo WEVA 91-303
A. C. No. 46-01453-03949

v.
Docket No. WEVA 91-353
A. C. No. 46-01453-03950

CONSOLIDATION COAL COMPANYu
Respondent

Docket No. WEVA 91-1028
A. C. No. 46-01453-03953
Humphrey No. 7 Mine
Docket No. WEVA 91-305
A. C. No. 46-01436-03840
Shoemaker Mine
Docket No. WEVA 91-1033
A. C. No. 46-01867-03886

Blacksville No. 1 Mine
DECISION

Appearances:

Patrick L. DePace, Esq., Office of the Solicitor,

u. s. Department of Labor, Arlington, Virginia,
for the Petitioner;
Walter J. Scheller, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Maurer

At the hearing of these cases, which was held on November 13
and 14, 1991, in Morgantown, West Virginia, the parties jointly
moved for approval of their settlement of certain portions of the
captioned matters. And subsequently, the Secretary on
January 16, 1992, filed a Motion to Approve Settlement in Docket
No. WEVA 91-1033 in its entirety.
Docket No. WEVA 91-303 involves a single section 104(d) (2)
order, Order No. 3314158. An oral motion was presented on the
record requesting approval of a reduction in the proposed civil

483

penalty from $1000 to $900, and a request to modify the order to
a section 104(a) citation as well as reducing the negligence
factor to "moderate." I granted the motion on the record.
Docket No. WEVA 91-305 involves a single section 104(a)
citation, Citation No. 3327217. Respondent agreed to pay the
full amount of the proposed civil penalty, i.e., $311.
I granted
the motion to approve settlement on the record.
Docket No. WEVA 91-1028 involves two section 104(a)
citations, Citation Nos. 3308260 and 3307302. An oral motion was
presented on the record requesting approval of a reduction in the
civil penalty proposed for each citation from $259 to $155 as
well as modification of each of the citations to nonsignificant
and substantial violations.
I granted the motion on the record.
Docket No. WEVA 91-353 involves six section 104(a)
citations, Nos. 3308250, 3327724, 3308251 3307317; 3307306u and
3327732. At the hearing, settlement motions were presented with
regard to five of these six.
In regard to Citation No. 3308250,
a motion was made requesting approval of a reduction in the civil
penalty from $259 to $155 and modification to a nonsignificant
and substantial violation. With regard to Citation No. 3327724,
respondent agreed to pay the full amount of the proposed civil
penalty, $192. A motion was made concerning Citation Nos.
3308251 and 3307317, requesting approval of a reduction in the
civil penalty proposed for each citation from $259 to $155 as
well as modification of each of the citations to nonsignif icant
and substantial violations. In regard to Citation No. 3307306, a
motion was made requesting approval of the respondent's agreement
to pay $192 of the proposed penalty of $259 as well as requesting
an order modifying the citation to reflect a "low" degree of
negligence on the part of respondent.
I granted the motions
concerning these five citations on the record. Citation No.
3327732 remained for trial, and in that regard, the operator
stipulated to the fact of violation, but disputes the "S&S"
finding and of course, the assessed penalty.
At hearing, there were two citations and an order still in
dispute. As noted previously, in Docket No. WEVA 91-353,
section 104(a) citation No. 3327732 remained in dispute and in
Docket No. WEVA 91-1033, section 104(d) (2) Order No. 3314086 and
section 104(a) Citation No. 3314087 remained in dispute. Testimony was heard in regard to each of these on November 13 and 14,
1991. Following the conclusion of the testimony on November 14,
respondent had not yet fully presented its defense for the two
violations at issue in Docket No. WEVA 91-1033. Accordingly, it
was agreed that the parties would reconvene in Morgantown, West
Virginia, on December 17, 1991, for the conclusion of the
evidence in Docket No. WEVA 91-1033. However, prior to that
date, the parties reached an agreement in regard to each of the
violations at issue in Docket No. WEVA 91-1033. A written Motion

484

to Approve Settlement was filed with the undersigned administrative law judge. In regard to Order No. 3314086, the motion
requested approval of respondent's agreement to pay $276 of the
proposed penalty of $1100 as well as requesting modification of
the order to a section l04(a) citation as well as indicating that
the violation was the result of a "moderate" degree of negligence
on the part of the respondent. With regard to Citation No.
3314087, the motion requested the entry of an order vacating the
citation. Based on the Secretary's representations, I conclude
that the proffered settlement is appropriate under the criteria
contained in section llO(i) of the Mine Act. The terms of this
settlement agreement as well as those entered onto the record at
the hearing will be incorporated into my order at the end of this
decisiono
Both parties have filed post-hearing proposed findings and
conclusions and/or briefs, which I have considered along with the
entire record in making the following decision.
FINDINGS OF FACT

1. Citation Nao 3327732 alleges a violation of the
regulatory standard found at 30 C.F.R. § 75.605 and charges as
follows~

A strain clamp was not provided to prevent strain
on the No. 6 A.W.G. trailing cables for the 5 southwest
section (043) battery charger.
2. MSHA Coal Mine Inspector, (Electrical) Roy Jones issued
Citation No. 3327732 to the respondent on November 20, 1990,
while conducting a regular electrical inspection of respondent's
Humphrey No. 7 Mine. On that date, he had observed that there
was no strain clamp on a trailing cable for a battery charger.
3. Respondent does not contest the fact that the violation
of the cited mandatory standard as described in Citation
No. 3327732 existed at that time. ·The cable admittedly was not
properly clamped, but respondent submits that the violation was
nonetheless improperly designated "S&S. 11
4. The trailing cable in question was suspended from the
mine roof on insulated "J" hooks, and extended from the battery
charger to the power center, a distance of approximately 100 to
150 feet.
It was arguably subject to being pulled down by a
scoop car that would of necessity travel under it on a regular
basis, i.e., once or twice every shift. However, only 15 feet of
the cable, the width of a heading, would ever be exposed to the
scoop, if it could be reached.

485

5. The height of the entry was approximately 7 to 7 1/2
feet and the scoop was approximately 4 1/2 feet high.
Mr. Radabough, a maintenance foreman, credibly testified that in
his opinion it would be unlikely for the scoop to catch that
cable, although he acknowledges the possibility.
Inspector
Jones, on the other hand, testified that he was not aware of the
clearance existing for the scoop from the roof in the area where
it could potentially pull the cable (Tr. 58-59). This is a
significant omission in the. chain of analysis regarding the
reasonable likelihood of the cable being pulled down in the first
instance.
6. A strain clamp is most important on equipment that is
actually in motionr that is mobile equipment which is in frequent
motion and which drags its trailing cable behind it. This is so
because the purpose of the strain clamp is to protect the cable
and electrical connections from damage should the cable be jerked
or suddenly pulled.
7. A battery charger is mounted on skids and not moved on a
daily or even weekly basis. Rather the charger is moved only
once or twice per month. Furthermoref the cable is not pulled or
dragged behind the battery charger.
8. There was a box connecter installed where the cable
entered the metal frame of the battery charger which provided
protection for the jacketing of the cable where it enters the
frame and also provided some strain relief on the cable.
DISCUSSION AND FURTHER FINDINGS

A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonable serious nature." Cement Division, National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove:
(1)
the underlying violation of a mandatory safety
standard; (2)
a discrete safety hazard--that is, a
measure of danger to safety contributed to by the

486

violation: (3) a reasonable likelihood that the hazard
contributed to will result in an in)ury: and (4)
a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United states steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury. 11
U.S. Steel Mining Co., 6 FMSHRC 1834 1 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 substantialo Uo So Steel
Mining Companyu Inc.u 6 FMSHRC 1866u 1868 (August
1984}; U.S. Steel Mining Company, Inc.u 6 FMSHRC 1573,
1574-75 (July 1984).
The Secretaryvs position is that if the cable should be
pulled down by the scoop, the absence of a strain clamp on the
cable at the battery charger could result in insulated wires
becoming exposed. Inspector Jones explained that power conductors are normally inside the housing of the battery charger
and therefore are not subject to contact with any surface which
may conduct an electric current. However, in the absence of a
strain clamp, the cable can be pulled outside the housing, and
the power conductors could become exposed. This sequence of
events could possibly shock a miner who might inadvertently touch
the exposed power conductors or the metal guard surrounding the
battery charger. If an exposed wire should come into contact
with the metal housing in such a fashion, an electric current,
i.e., amperage, would be conducted onto the frame of the battery
charger. An individual would be potentially exposed to as much
as 15 amps of electric current were he to come into contact with
the exposed conductors or the energized frame of the battery
charger. This in turn could produce a serious electric shock
injury or even an electrocution.
The weakness in the Secretary's analysis is, however, that
the likelihood of the scoop pulling down a cable 2 1/2 feet above
it and to which it is exposed for only a distance of 15 feet once
or twice per shift is not a reasonably likely event. Yet it is a
precondition to all that follows in the Secretary's above
scenario which culminates in the miner's injury or death due to
electric shock.

487

Additionally, even the inspector concedes that the box
connector which was installed would supply some strain relief to
the battery charger cable in the absence of the required strain
clamp.
Accordingly, on the basis of the foregoing findings and
conclusions, I find the violation alleged in Citation No. 3327732
to be nonsignificant and substantial. Citation No. 3327732, as
so modified, will be affirmed herein.
I also find that the violation occurred as a result of the
moderate 11 negligence of the respondent because there was no
recordation of this condition in the weekly electrical examination records and it is most likely that there was never a stra
clamp installed for this cable on this particular battery
charger.
11

Considering the statutory criteria contained in
section llO(i) of the Mine Act, I find and conclude that a civil
penalty of $50 for the admitted violation is appropriate and will
be ordered herein.
ORDER
It is hereby ORDERED that~
1. Citation Nos. 3327724, 3307306 (modified to reflect
"low" negligence), and 3327217 ARE AFFIRMED.
2.

Citation No. 3314087 IS VACATED.

3. Citation Nos. 3308250, 3308251, 3307317, 3327732,
3308260, and 3307302 ARE MODIFIED to delete the "significant and
substantial" (S&S) finding, and as so modified, ARE AFFIRMED.
4. Order Nos. 3314158 and 3314086 ARE MODIFIED to citations
issued pursuant to section 104(a) of the Mine Act with negligence
factors reduced to "moderate" in each, and as so modified, ARE
AFFIRMED.
5. Respondent, Consolidation Coal Company, IS ORDERED TO
PAY civil penalties in the amount of $2,696 within 30 days of the
date of this decision, for the violations found herein.

aurer
rative Law Judge

488

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

22041

MAR 181992
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 91-1231
A.C. No. 15-14074-03587
Martwick Underground Mine

PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

W. F. Taylor, Esq., Office of the Solicitor, U.S.
Department of Laboru Nashviller Tennessee for the
Petitioner;
David R. Joest, Esq.f Peabody Coal Company 7
Henderson, Kentuckyp for the Respondento

Before:

Judge Melick

This case is before me pursuant to section lOS(d) of the
Federal Mine Safety and Health Act of 1977, 30 C.F.R. § 801
et seg., the "Act," to challenge four citations issued by the
Secretary of Labor against the Peabody Coal Company (Peabody) for
alleged violations of regulatory standards. The general issue
before me is whether Peabody violated the cited regulatory
standards as alleged, and, if so, what is the appropriate civil
penalty. Three of these four citations were the subject of a
posthearing settlement motion in which a reduction in penalties
from $472 to $394 was proposed. Considering the representations
and documentation submitted, I find that the proffered settlement
is appropriate under the criteria set forth in section llO(i) of
the Act and an order directing payment will be incorporated in
this decision.
The one citation remaining at issue, Citation No. 3419837,
as amended at hearing, alleges a violation of the mandatory
standard at 30 C.F.R. § 75.301 and charges that "[o]nly
6,750 cubic feet a minute of air was reaching the last open
crosscut between Nos. 1 and 2 Rooms (intake to return) in rooms
left off northeast entries off four east panel off southwestern
submain entries (ID 004)." The cited standard provides in
relevant part that "[t]he minimum quantity of air reaching the
last open crosscut in any pair or set of developing entries and
the last open crosscut in any pair or set of rooms shall be
9,000 cubic feet a minute . • . • "

489

The essential facts are not in dispute. Federal Mine Safety
and Health Administration (MSHA) ventilation specialist Lewis
Stanley obtained an air reading during the course of an.
inspection of the subject mine in the area he determined to be
the last open crosscut between the No. 1 and the No. 2 rooms. It
is undisputed that the quantity of air at that location was then
only 6,750 cubic feet per minute (CFM). It is further undisputed
that if Inspector Stanley measured the air at the correct
location then Respondent failed to provide the prescribed minimum
of 9,000 CFM and there was a violation of 30 C.F.R. § 75.301 as
charged. Respondent maintains however, that Inspector Stanley
did not measure the air at the correct location in that he did
not take his reading at the "last open crosscut."
In Secretary of Labor v. Peabody Coal Companyv 11 FMSHRC 4"
( 1989) the Commission stated in regard to the term 11 last open
crosscut" that~
Q

Although "last open crosscut" is not defined in
the Mine Act or the Secretary's regulations, the Act
and regulations contain repeated references to the
term. [Footnote reference omitted.] As notedu a
"crosscut" is a passageway or opening driven across
entries for ventilation and haulage purposes. In
general, the last open crosscut thus refers to the last
(most inby) open passageway between entries in a
working section of a coal mine. [Footnote reference
omitted.] The last open crosscut "is an area rather
than a point or line . •
" Henry Clay Mining Co.,
3 IBMA 360, 361 (1974).
At hearing, Inspector Stanley provided expert testimony that
the crosscut labeled "location of bolter" on Joint Exhibit No. 1
(Appendix A) was the "last open crosscut." Peabody argues
however, that since this crosscut was then being roof-bolted and
the roof-bolting machine was situated in and partially
obstructing that crosscut it was not ·;'open" and therefore could
not have been the "last open crosscut." Clearly, however, within
the scope of the above definition the concept of "open" in the
phrase "open crosscut" refers to the point at which the crosscut
is cut through in its total width to complete a passageway
between entries. In this regard, I accept the definition
provided by the MSHA expert testimony. A definition such as
proffered by Peabody depending upon whether mining equipment such
as a roof bolter may be within the crosscut at a particular
moment would completely void the purpose of the ventilation
requirements here cited and indeed is without any legal or
rational foundation. Peabody's contention is accordingly
rejected.
I also reject Peabody's contention that the violation was
not proven because the inspector failed to take his air reading

490

within the area he defined as the "last open crosscut." It is
not disputed that the specific point at which the inspector
obtained his reading provided the same reading as if it was
actually taken within the last open crosscut. He was apparently
unable to take a reading within the crosscut because of the
position of the roof bolter. The evidence is clearly sufficient
therefore from which it may reasonably be inferred that the
quantity of air in the last open crosscut was deficient as
charged.
A violation is properly designated as significant and
substantial "if, based on the particular facts surrounding that
violation, there exists a reasonable likelihood that the
contributed to will result in an injury or illness of a
reasonably serious nature." Cement Division, National Gypsum
Co.p 3 FMSHRC 822v 825 (April 1981)
In Mathies Coal Coo,
~FMSHRC 1, 3-4 (January 1984), the Commission explained:
In order to establish that a violation of a mandatory
standard is significant and substantial under National
Gypsum the Secretary must prove:
(1) the underlying
violation of a mandatory safety standard, (2} a
discrete safety hazard -- that
a measure
danger
to safety -- contributed to by
violation; (3) a
reasonable likelihood that the hazard contributed to
will result in an injury and (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'd 9 FMSHRC 2015 1 2021
(December 1987) (approving Mathies criteria))o 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)), and"'also that the likelihood
of injury be evaluated in terms of continued normal
mining operations (U.S. Steel Mining Co., Inc. 6 FMSHRC
1573, 1574 (July 1984); see also, Halfway, Inc.,
8 FMSHRC 8, 12 (January 1986). 11
Inspector Stanley testified without contradiction that the
subject mine liberates methane and that adequate ventilation is
accordingly necessary to remove and/or dilute such methane. He
cited a number of ignition sources in the cited set of rooms
including the roof bolter within the last open crosscut. It was
his expert opinion that a resulting explosion or ignition could
result in burn injuries or fatalities.
It may reasonably be
inferred from this evidence that the violation was "significant
and substantial" and serious. I further find the operator
chargeable with but little negligence in light of the dearth of

491

evidence in this regard. Under the circumstances and considering
the criteria under section llO(i) I find that a civil penalty of
$200 is appropriate.
ORDER

Peabody Coal Company is hereby
penalties of $594 within 30 days

Distribution:
W. F. Taylor, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Roadv Suite B-201, Nashville? TN 37215
(Certified Mail)
David R. Joest, Esq., Midwest Division Counsel, Peabody Coal
Company, 1951 Barrett Court, P.O. Box 1990, Henderson, KY
42420-1990 (Certified MaiL)
/fb

492

APPENDIX A

MARTwICK
UNIT 4

Cito ti on No. 3419837

L. Stonley
104 o. s~s

4/29/91
1

2

3

5

4

6

\./here MeusureMent should

tu ken

\.Jhere Inspector took o.ir Meo.sureMent
Return Air

Loco tion of bolter

out

3

DO
D
DO

oOD

1

ODD

o.

OD

0

J'o/N.//VO.

4

2

~~/,//:,/ f{

493

5

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

22041

MAR 191992
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 91-1600
A.C. No. 46-01453-03960

v.
Humphrey No. 7 Mine
CONSOLIDATION COAL COMPANY,
Respondent

DECISION APPROVING SETTLEMENT
Appearances~

Before:

Caryl L. Casden, Esq.u U.S. Department of Labor
Office of the Solicitor 1 Arlington, Virginia,
for Petitioner•
Walter J. Scheller III, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania for
Respondent.

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). At hearing Petitioner sought to
vacate Citation No. 3316065 for insufficient evidence and filed a
motion to approve a settlement agreement as to the remaining
citations. A reduction in penalty from $2,638 to $2,510 has been
proposed.
I have considered the representations and
documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in Section llO(i) of the Act.

1

WHEREFORE, the motion for af/(roval of settl

ent is GRANTED,

and it is ORDERED that Respondeni/pay a penalty df $2,510 within

!I IL \_/
...__,,

!

i

iI

•

_,, /

t

. · \ ',

ary ~e~ick
;
,Administrative L w Judge

I I

Distribution:

fl

i /

P

:/

if

\
1

Caryl L. Casden, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail}
Walter J. Scheller III, Esq., Consolidation Coal Company, Consol
Plaza, Pittsburgh, PA 15241-1421 (Certified Mail)
494

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

22041

MAR 191992
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 91-1601
A.C. No. 46-01453-03961

v.
Humphrey No. 7 Mine
CONSOLIDATION COAL COMPANYu
Respondent
DECISION APPROVING SETTLEMENT
Appearances~

Before:

Caryl L. Casdenu Esq.u U.S. Department of Labor 0
Office of the Solicitoru Arlingtonu Virginiau
for Petitioner'
Walter J. Scheller III, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania for
Respondent.

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). At hearings and following hearings
Petitioner filed motions to approve settlement agreements and to
dismiss the case.
A reduction in penalty from $1,295 to $1,191
has been proposed.
I have considered the evidence,
representations and documentation submitted in this case, and I
conclude that the proffered settlement is appropriate under the
criteria set forth in Section llO(i) of the Act. ~,
WHEREFORE, the motion for ap roval of settle ~nt is GRANTED,
and it is ORDERED that Responden pay· penalty o i $1,191 within
30 days of this order.
i
i

t ~1~~/V\ ' /
(\

G

I

1

/,rl/\

~~in~f trative L w Judge
'

495

'

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

MAR 201992
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 91-1045
A.C. No. 36-04281-03732

v.

Dilworth Mine
CONSOLIDATION COAL COMPANYv
Respondent
DECISION

Appearances:

Caryl Casden, Esq. 3 and H. P. Bakeru Esq. 9 (on the
Brief)u Office of the Solicitoru U.S. Department
of Laborv Philadelphiau Pennsylvania for the
Petitioner;
Walter J. Scheller III, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 C.F.R. § 801
et seg., the "Act;" charging the Consolidation Coal Company
(Consol) with one alleged violation of the mandatory standard at
30 C.F.R. § 75.1103-4. Five oth~r citations in this case were
the subject of a partial settlement decision issued November 27,
1991. The general issue before me is whether Consol violated the
cited regulatory standard as alleged, and, if so, what is the
appropriate civil penalty to be assessed.
The citation at bar, No. 3468340, charges as follows:
The petition for modification Docket No. M-86-49-C
dated December 5, 1986, for the carbon monoxide system
at the mine was not being used as described. In that
under Item No. 5 of the petition the audible and visual
alarm was not sent to a surface location where a
responsible person was on duty at all times. The hard
line phone system used between the master command
center in Moundsville, West Virginia, and Dilworth Mine
was inoperable. There was no alarm system that is
continuously manned on the surface of Dilworth Mine.

496

It is undisputed that on the date of the alleged violation,
January 30, 1991, Respondent then had in place a point-type fire
detection system meeting the requirements of the cited mandatory
standard. It is the Secretary's position however, that in light
of her approval of a petition for modification of the cited
mandatory safety standard pursuant to section lOl(c) of the Act
(permitting the use under certain circumstances of a carbon
monoxide fire detection system with audio and visual alarms
connected to a monitored surface location) Consol was required to
comply not with the cited standard byt with the terms of the
approved petition for modification. I
Consol maintains on the other hand that by its own specific
terms the approved petition for modification is inapplicable to
the case at bar. For the reasons that follow, I find that the
approved petition is indeed inapplicable hereto and that since
Consol was in compliance with the cited standard there was in
fact no violation.
The approved petition for modification at issue provides
that a low-level carbon monoxide [early warning fire detection]
system shall be installed in all belt entries utilized as intake
11

1 ; Section lOl(c) of the Act provides as follows:
"Upon petition by the operator or the representative of
miners, the Secretary may modify the application of any mandatory
safety standard to a coal or other mine if the Secretary
determines that an alternative method of achieving the result of
such standard exists which will at all times guarantee no less
than the same measure of protection afforded the miners of such
mine by such standard, or that the application of such standard
to such mine will result in a diminution of safety to the miners
in such mine. Upon receipt of such petition the Secretary shall
publish notice thereof and give notice to the operator or the
representative of miners in the affected mine, as appropriate,
and shall cause such investigation to be made as he deems
appropriate. Such investigation shall provide an opportunity for
a public hearing at the request of such operator or
representative or other interested party, to enable the operator
or the representative of miners in such mine or other interested
party to present information relating to the modif icatibn of such
standard. Before granting any exception to a mandatory safety
standard, the findings of the Secretary or his authorized
representative shall be made public and shall be available to the
representative of the miners at the affected mine. The Secretary
shall issue a decision incorporating his findings of fact
therein, and send a copy thereof to the operator or the
representative of the miners, as appropriate. Any such hearing
shall be of record and shall be subject to section 554 of Title 5
of the United States Code."

497

air-courses" (Government Exhibit No. 4). From this unambiguous
language it is clear that only those belt entries utilized as
intake air courses are to be governed by the approved petition.
Since it is undisputed that none of the belt entries were being
utilized as intake air courses, the approved petition for
modification is clearly inapplicable. Since it is further
undisputed that Consol continued to utilize the point-type sensor
fire detection system required by 30 C.F.R. § 75.1103-4, and that
the system was fully operational on the date of the citation,
there was no violation.
Under the circumstances it is not necessary to reach the
question of whether the approved petition for modification
superseded the cited mandatory standardo
ORDER

Citation Noo 3468340

is her\jbyvacated. '

n\

i
rv'--~!\,
lv\,~J~
Gary M~ick
~
Adminisl\ative

~w Judge

Distribution:
\ I
'v

,

Caryl Casden, Esq., and H. P'. Baker, Esq., Office of the
Solicitor, U.S. Department of Labor, Room 14480 Gateway Building,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
Walter J. Scheller III, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421
(Certified Mail)
/fb

498

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

March 24, 1992

CONSOLIDATION COAL COMPANY,
Contestant

v.

..

.

CONTEST PROCEEDING
Docket No. WEVA 91-228-R
Citation No. 3315561; 2/20/91
Arkwright No. 1 Mine

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

Mine ID

46-01452

CIVIL PENALTY PROCEEDING

.
.

V.

Docket No. WEVA 91-1832
A. C. No. 46-01453-03788
Arkwright No. l Mine

CONSOLIDATION COAL COMPANY 0
Respondent
DECISION
Appearances:

Walter J. Scheller III, Esq., consolidation
coal company, Pittsburqh, Pennsylvania, for
Contestant-Respondent;
Charles M. Jackson, Esq., Office of the
Solicitor, o. s. Department of Labor,
Arlinqton, Virqinia, for Respondent-Petitioner.

Before:

Judqe Merlin

This case is a petition f9r the assessment of five civil
penalties and a notice of contest C"orresponding to one of the
penalties. The contest case was filed by the operator under
section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 815(d). The penalty petition was filed by the Secretary of Labor against Consolidation Coal Company under section
110 of the Act, 30 u.s.c. § 820. The case came on for hearing on
March 10, 1992.
Citation No. 3315928 and Citation No. 3315561
Citation No. 3315928 was issued for a violation of 30 C.F.R.
75.316 because the man door in the stopping was bound and the
bottom frame was bent, resulting in the door standing open a
couple of inches and air was passing from the track into the
fresh air escapeway. The alleged violation was designated by the
inspector as significant and substantial.
§

499

Citation No. 3315561 was also issued for a violation of
30 C.F.R § 75.316 because the stopping between the track entry
and fresh air escapeway on the 11 left section had a ~ block hole
and air was passing from the track entry into the fresh air
escapeway. This citation is the subject of a notice of contest
case Docket No. WEVA 91-228-R.
The inspector testified first with respect to Citation
No. 3315928. He set forth his position regarding the existence
of a violation and why it was significant and substantial. The
inspector exhibited great confusion over the meaning of significant and substantial. At the conclusion of the inspector's
direct testimony the parties advised that they wished to settle
this citation on the basis that the significant and substantial
designation be deleted and that the penalty be assessed at $1280
The settlement was approved on the record.
At the same time the parties also moved to settle Citation
No. 3315561 on the same basis that the significant and substantial designation be deleted. The proposed settlement in this
matter was $94 and it, too, was approved from the bench.
Citation Noo 3315933

This citation was issued for an alleged violation of
30 c.F.R.§ 75.904 because the circuit breaker which provided
protection for the main South No. 2 belt drive was not marked for
identification. The inspector testified with respect to the
existence of a violation and why it was significant and substantial. Once again, the inspector was confused and unclear with
respect to significant and substantial. At one point he stated
there was no reasonable likelihood of injury. After direct and
cross examination, the parties agreed to settle the case on the
basis that the significant and substantial designation be deleted
and that I set an appropriate penalty amount. The proposed
settlement was accepted on the record and I assessed a penalty in
accordance with the criteria in Section llO(i) of the Act, in the
amount of $94.
Citation Nos. 3315935 and 3315510

Citation No. 3315935 was issued for a violation of 30 C.F.R.
75.807. The 4160 high voltage transmission cable, which provides power to the main South No. 1 belt drive transformer, was
laying on the mine floor and there was considerable head coal and
rib sloughage on the cable. citation No. 3315510 was issued for
a violation of 30 C.F.R. § 75.1100-2(b) because a distance of 540
feet existed between consecutive fire hose outlets between No. 62
and No. 68 block along the main Butts No. 2 conveyor belts.
§

Prior to going on the record, the parties agreed to settle
these citations on the basis that the significant and substantial
designations be deleted for both citations, that a penalty of
$128 be assessed for Citation No. 3315935 and that a penalty of

500

$94 be assessed for Citation No. 3315510.
ments were approved from the bench.

The proposed settle-

ORDERS
In light of the foregoing, the recommended settlements are
APPROVED and the operator is ORDERED TO PAY the following amounts
within 30 days from the date of this decision.

Citation No.

Amount

3315928
3315561
3315933
3315935
3315510

$128.0())
$ 94.00
$ 94.00
$128.0())
$ 94o~HiJ

Total

$538.00

Paul Merlin
Chief Administrative Law Judge
Distribution:
Walter J. Scheller III, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Charles M. Jackson, Esq., Office of the Solicitor, U. s. Department of Labor, 4015 Wilson Boulevard, 4015 Wilson Boulevard,
Arlington, VA 22203
(Certified Mail)
Mr. William White, UMWA, Rt. 1 Box-154B5, Bruceton Mills, WV
26525
(Certified Mail)
~ichard G.

High, Jr., Director, Office of Assessments, MSH~

u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA
/gl

501

22203

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

March 24, 1992

CONSOLIDATION COAL COMPANY,
Contestant

.
:
.

v.

CONTEST PROCEEDING
Docket No. WEVA 91-247-R
Citation No. 3315776; 2/26/91

0
0

~

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

Blacksville Noo 1 Mine
Mine ID

46-01867

0
0

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 91-1553
Ao Co NOo 46-01453-03788

Vo

0
0

CONSOLIDATIOB COAL COMPANY 9
Respondent

.
:
.

Humphrey Noa 1 Mine
Docket No. WEVA 91-2022
A. C. No. 46-01867-03909

:
:

Docket No. WEVA 92-146
A. C. No. 46-01867-03912

:

Blacksville No. 1 Mine

..

DECISION
Appearances:

Walter J. Scheller III, Esq., consolidation
Coal Company, Pi_ttsbu~qh, Pennsylvania, for
Contestant-Respondent1
Charles M. Jackson, Esq., Office of the
Solicitor, u. s. Department of Labor,
Arlington, Virqinia, for Respondent-Petitioner.

Before:

Judqe Merlin

When the above-captioned cases came on for hearing on
March 9, 1992, counsel for both parties advised that settlements
had been reached. With permission of the bench these settlements
were placed upon the record. Other cases scheduled for hearing
at the same time were heard on the merits.

WEVA 91-1553
This case involved two violations which were originally
assessed at $518 and the proposed settlement was for $414.

502

Citation No. 3307921 was issued for a violation of 30 C.F.R.
75.220 because the main haulage entry was in excess of 20 feet
wide and was not supported as required by the approved roof
control plan. The proposed settlement modified the citation to
reflect that the violation was not significant and substantial.
The originally assessed penalty was $259 and the proposed settlement was $155. The Solicitor represented that the reduction and
modification were warranted because gravity was less than originally thought. According to the Solicitor, the roof in the area
cited was not in poor condition. The foregoing representations
were accepted from the bench and the proposed settlement was
approvedo
§

Citation No. 3328103 was issued for a violation of 30 CoF.R.
75.518 because the water pump did not have adequate overload
protectiono The operator has agreed to pay the originally
assessed penalty for this violation. The circumstances of this
violation were explained and I accepted the proffered amount from
the bench.
§

WEVA 91-2022

Citation Noo 3307720 was issued for a violation of 30 C.F.R.
50.10 because the operator failed to immediately report a fire
that occurred in the surf ace slack silo during silo cleaning
operations by an independent contractor. The originally assessed
penalty was $500 and the proposed settlement was $200. The
Solicitor represented that the penalty reduction was warranted
because negligence was less than originally thought. The Solicitor advised that there was some confusion by the independent
contractor and the operator as to whether the incident was a mine
fire reportable under the regulations. Therefore, the Solicitor
stated that the negligence should be modified from high to
moderate. The foregoing representations were accepted from the
bench and the proposed settlement was approved.
§

WEVA 92-146 and WEVA 91-247-R

These cases are a petition for the assessment of a civil
penalty and a corresponding notice of contest. Citation No.
3315776 was issued for a violation of 30 C.F.R. § 75.303. An
inadequate pre-shift examination allegedly was conducted on the
P-8 langwall supply track because an obvious hazardous condition
existed and was not reported. The Solicitor moved to vacate the
citation on the ground he would be unable to establish that the
hazardous condition existed at the time of the pre-shift. The
foregoing representations were accepted from the bench and the
motion to vacate was approved and the cases dismissed.

503

ORDERS
In light of the foregoing the recommended settlements are
APPROVED.
It is ORDERED that Citation No. 3307921 be MODIFIED to
delete the significant and substantial designation and the
operator PAY $414 within 30 days of the date of this decision.
It is further ORDERED that Citation No. 3307720 be MODIFIED
to reflect the operator's negligence as moderate and the operator
PAY $200 within 30 days of the date of this decisiono
It is further ORDERED that Citation No. 3315776 be VACATED
and that Docket Nos. WEVA 91-247-R and WEVA 92-146 be DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution~

Walter J. Scheller, Esq., Consolidation coal company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Charles M. Jackson, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Robert Strapp, Esq., UMWA, 900 15th Street, NW., Washington, DC
20005
(Certified Mail)
Mr. William White, UMWA, Rt. 1, Box,;t54B5, Bruceton Mills, WV
26525
(Certified Mail)
Richard G. High, Jr., Director, Office of Assessments, MSHA,
U. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203
/gl

504

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

MAR 2 61992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)u
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 91-119-M
A.C. No. 20-02849-05501

v.
Aggregate Pit
YERINGTON LEASING COMPANY,
Respondent
DECISION APPROVING SET.rLEMENT
Appearances~

Susan J. Bissegger, Esq., Office of the Solicitor,
U.S. Department of· Labor, Chicago Illinois, for
the Petitioner;
Mr. John s. Yerington III, President, Yerington
Leasing Company, St. Joseph, Michigan, for the
Respondent.

Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section lOS(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). Following hearings, Petitioner
filed a motion to approve a settlement agreement and to dismiss
the case. Petitioner now moves to vacate Citation Nos. 3618778,
3618779 and 3618780 for insufficient evidence and Respondent
agrees to pay the proposed penalty for the remaining citations of
$80 in full. I have considered the representations and
documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in Section llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that Resp~nden/Jpay a pen;a1ty of $80 within
30 days of this order.
~
11

\. ./ II//1II .vA-/~
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Gi;t,ry "Melick"

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~inistrattve Law Judge\
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sos

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

MAR 2 61992
EAGLE NEST, INC.,
Contestant

CONTEST PROCEEDING

v.

Docket No. WEVA 92-729-R
Citation No. 3754287• 3/2/92

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

East Nest Mine
:

DECISION
Appearances~

Before:

David J. Hardy, Esq., Jackson and Kellye
Charleston, West Virginiau for Contestant1
Pamela Silverman, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, Virginia,
for Respondent.

Judge Weisberger

This case is before me upon based upon a Notice of Contest
filed by the Operator on March 5, 1992, challenging the issuance
of Citation No. 3754287 which alleges a violation of 30 C.F.R. §
75.1002. 1 on the same date, the Operator filed a Motion for
Expedited Proceedings. In telephone conference calls on March 5
and 6, 1992, counsel for the Operat()r presented argument in favor
of the Motion, and counsel for the Secretary presented argument
in opposition to the Motion. The Motion was granted, and the
case was scheduled for hearing on March 12, 1992 in Charleston,
West Virginia and was heard on that date. At the hearing, Ronald
Larrison, Thomas Hager, and Steve Alexander testified for the
Operator. Ernest H. Thompson and Ernest Sheppard testified for
the Secretary. The parties waived their right to submit written
post hearing briefs, and in lieu thereof presented oral argument.
The Secretary, in addition, filed a written argument on
March 17, 1992, and the Operator filed a response to this
argument on March 18, 1992.

1The

Secretary filed an Answer on March 12, 1992.
506

FINDING OF FACT AND DISCUSSION
I.

Violation of 30 C.F.R.

§

75.1002

On February 19, 1992, longwall m'ining had commenced in the
E-Panel at the Operator's Eagle Nest Mine. In general, as
longwall mining proceeds, a gob area is built up behind (inby)
the longwall face. In the E-Panel immediately inby the gob
(mined-out areas), the Operator located a set up entry wherein
various equipment to develop a future longwall panel was storedo
Immediately inby this entry, a bleeder entry vented gases from
the gob to the return entries, and then out of the mineo An
intake entry, containing trolley wires and tracks, was located
immediately inby the bleeder entry, and was separated from the
bleeder entry by a double row of cement blocks, each row
consisting of blocks 8 inches x 8 inches x 16 incheso On
February 24, 1992, as part of the normal longwall mining process,
the first roof fall in the gob area occurred.
on February 27, 1992, the entry containing the trolley
tracks and wires was inspected by MSHA Inspector Ernest Thompsono
The trolley wires were 108 feet from the inby end of the set-up
entry, but were approximately 350 feet from longwall faceo
Thompson issued a citation alleging a violation of 30 c.F.R.
75.1002 which, as pertinent, provides that trolley wires
" ••• shall be kept 150 feet from pilar workings".
(emphasis
added). The initial issue for resolution is whether the term
"pilar workings", encompasses the gob or mined out area or,
whether it means the longwall face.
§

The term "pilar workings", as set forth in Section 75.1002,
supra, is not defined in Volume 30 of the Code of Federal
Regulations. Section 75.1002, supra, sets forth the statutory
provision found at Section 310(c) of the Federal Mine Safety and
Health Act of 1977 (P.L. 95-164, "tfie 1977 Act", and, its
predecessor, Section 310(c) of the Federal Coal Mine Health and
Safety Act of 1969, (P.L. 91-173, "the 1969 Act"). Neither the
1969 Act, nor the 1977 Act contains any definition of the term
"pilar workings". Neither is that term defined in A Dictionary
of Mining, Mineral, and Related Terms (U.S. Department of the
Interior, 1968). Hence, in analyzing the scope to be accorded
the term "pilar workings", emphasis is placed on the
Congressional intent behind the enactment of Section 310(c),
supra.
The only indication of any Congressional intent with regard
to Section 310(c) supra, consists of the following language
contained in the Section-by-Section analysis of the Senate

507

version of the 1969 Act "This Section2 requires that •.. trolley
wires ••• be kept at least 150 feet from pilar workings ••• because
the ventilating current may contain explosive mixtures of gas.
Also, pilar falls may damage and cause short circuits in the
cables and transformers." {S. Rep. No. 91-411, 91st, Cong., 1st
Sess. 77, reprinted in Legislative History Federal Coal Mine
Health and Safety Act, at 77) Since the gob area of a longwall
panel can liberate gas, and can cause a "sudden outrush of air"
(Tr. 147) when the gob roof falls, even after the first fall, it
would appear that Congress, in enacting Section 75.1002 supra,
intended to minimize the hazard of gob gases being forced over
trolley wires, a source of ignition (See, Consolidation Coal
company, 4 FMSHRC 2153, 2161 (1982), petition for discretionary
review denied (January 14, 1983), wherein Judge Broderick, in
analyzing whether the measurement of the distance to certain nonpermissible equipment should be taken from the outby corner of
the pilar being mined, or from the actual place of the cut 0 set
forth as follows with regard to Section 75.1102 supra~ "The
hazard which the standard is designed to prevent is an ignition
or explosion which could result from methane being forced back
over electrical equipment which may arcon
Thomas Hager, the Operatorgs mine foreman, and Steve
Alexander, underground superintendent at Eagle Nestu both of whom
have more than 20 years experience each in the mining industry,
testified, in essence, that the term "pilar workings" means the
area where coal is being extracted i.e., the longwall face.
Also, in support of its position herein, the Operator relies on
the Secretary's Program Policy Manual, Volume v, Part 75,
wherein, under the heading 75.1002-1, location of other electric
equipment; requirements for permissibility, the following
language is set forth: "In longwall mining, the 150-foot
distance shall be measured in a straight line from the wire,
cable or electric equipment in question to the outby edge of the
longwall roof-support system." It was not controverted that this
language contemplates that the measurement be taken from the
longwall face.
The Program Policy Manual, supra, does not explicitedly
defined the term "pilar workings". Further, to the extent that
the Program Policy Manual supra, is inconsistent with the
expressed Congressional intent behind the enactment of Section
310(c), supra, I accord more weight to the latter with regard to
the scope to be accorded the term 11 pilar workings". Also, I have
considered the definitions of the term "pilar workings", as
provided by Hager and Alexander. Although they each have
extensive mining experience, they did not explicity testify as to
the common usage of that term in the industry.
Instead, it
2 In

the senate version of the 1969 Act, the
provision at issue was set forth as Section 211(c).

508

statutory

appears that their definitions of "pilar workings" were based on
what the term meant to them. In contrast, I place more weight on
the testimony of Ernest Sheppard an MSHA Ventilation Specialist
who indicated that, in his experience mining prior to MSHA, and
during the time he has worked for MSHA, he has not known the term
"pilar workings" to exclude the gob area. (Tr.270)
Hence, for all the above reasons I conclude that the
Operator violated Section 75.1002 supra, inasmuch as the trolley
wires were located less than 150 from the set-up entry which is
immediately inby the gob area which is part of the "pilar
workings."
II.

Significant and Substantial

The Citation herein alleges that the violation is
significant and substantial. In Southern Ohio Coal Company, 13
FMSHRC 912, (1991), the Commission reiterated the elements
required to establish a significant and substantial violation as
follows:
We also affirm the judge~s conclusion that the
violation was of a significant and substantial natureo
A violation is properly designated as significant and
substantial "if, based on the particular facts
surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6
FMSHRC 1, 3-4 (January 1984), the Commission explained:
In order to establish that a violation
of a mandatory standard is significant and
substantial under National Gypsum the
Secretary must prove: (1r-the underlying
violation of a mandatory safety standard;
(2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to
by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood
that the injury in question will be of a
reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria). The
third element of the Mathies formula "requires that the
Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which

509

there is an injury" (U.S. Steel Mining Co., 6 FMSHRC
1834, 1836 (August 1984)), and also that the likelihood
of injury be evaluated in terms of continued normal
mining operations (U.S. steel Mining Co., Inc. 6 FMSHRC
1573, 1574 (July 1984); see also Halfway, Inc., 8
FMSHRC 8, 12 (January 1986)." (Southern Ohio, supra at
916-917).
With regard with the first element, I find that a violation
Section 75.1002 supra has been established. Alsou as discussed
above, infra 1 the presence of trolley wires 108 feet from the gob
contributed to the hazard of an explosionv inasmuch as the
trolley wires, an ignition source, could have come in contact
with gob gas. However, the record fails to establish the third
element set forth in Mathies, supra, i.e. a reasonable likelihood
that the hazard contributed to would result in an injuryu as it
has not been established that there was a Q~reasonable likelihooauu
that the hazard contributed to would result in an event in which
there is injury", U.S. Steel Mining Co., 6 FMSHRC 1834u 1836
(August 1984) .
Hager, on cross examinationu agreed with Thompson that the
trolley wires are an ignition sourceo Readings taken by Thompson
with an MX270 Methane Tester on February 27, 1992, did not reveal
the presence of methane.
Samples taken at two evaluation points
on February 27, indicated the presence of 1/lOOth of one percent
and 1/lOth of one percent of methane, and, at the latter
location, 8,706 cubic feet of methane in 24 hours. The amount of
methane produced was not within the explosive range, and was
considered by Thompson to be "not high", (Tr. 173), but the
positive readings indicated to him that the gob area was
liberating methane. However, the area that the evaluation points
were located in was approximately three crosscuts removed from
the track entry in question, and separated by stoppings from that
entry. Also, any methane present at the evaluation points would
go directly into the return and be vented out of the mine.
Of more significance is the fact that any hazard of a gas
explosion occasioned by the location of the trolley wires, is
minimized by the presence of a double row of cement block
stoppings, 8 inches x 8 inches x 16 inches, between the bleeder
entry and the trolley track entry. Although Thompson performed a
smoke test which showed air going from the bleeder to the track
through four stoppings on March 3 and 4, and observed a hole 6
inches by 6 inches between the rib and one of the stoppings,
there is insufficient evidence to base a conclusion that these
conditions had existed on February 27, the date of the original
citation.
Indeed, Thompson indicated that he did not check the
stoppings on that date. Also, according to Hager, smoke readings
that he took at one of these stoppings on February 20, 26, 27,
29, and 3 dates subsequent to March 4, indicated the air to be
travelling into the bleeder entry. Moreover, although the

510

planned longwall roof fall that had occurred on February 24,
1992, did blow out some stoppings, there is no evidence that the
roof fall affected any of the stoppings between the bleeder and
track entries.
Thompson indicated that had observed an area of bad roof and
indicated that if it should fall, it could crush ventilation
controls. However, an examination of the mine map, Joint Exhibit
No. 1, indicates, as explained by Alexander, that should the roof
fall in the area indicated by Thompson and ruin stoppings 0 then
air would flow to the return entries, and not to the track entryo
Although Thompson indicated that even with various
precautions something can happen to release gas at the gas well
that is present in the solid pilar to be mined, the specific
safety precautions to be takenu Operatorgs Exhibit Noo 3u appear
to mitigate against the degree of this hazardo
Further, the presence of a low level of incombustible
elements, the energized power center, and the presence of coal
dust and saturated oil on the mine floor do not increase the
likelihood of an explosion 0 in the absence of a reasonable
likelihood of gas from the gob reaching the area in which the
trolley track was located.
Thompson observed that 11 rail bonds, used to prevent the
trolley tracks from arcing, were missing, and that the balance
were struck on rather than welded. This condition extended over
five crosscuts. However, it is significant to note, as indicated
by Hager, that this area was 200 to 800 feet from the area in
question.
Accordingly, for all the above reasons, I conclude that the
violation herein was not significant and substantial.

511

ORDER
It is ORDERED that Citation No. 3754287 be amended to
indicate that the violation alleged therein is not significant
and substantial. It is further ordered that the Notice of
Contest be DISMISSED. 3

~

ram
isberger
Administrative Law Judge

Distribution~

David J. Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston,
WV 25322 (Certified Mail)
Pamela Silverman, Esq.u Office of the Solicitor 0 Uo So Department
of Labor, 4015 Wilson Boulevard 0 Room 516 0 Arlington 0 VA 22203
(Certified Mail)

nb

3 counsel have each presented argument as

to the level, if any,
of the Operator's negligence. I decline to reach any decision on
this issue. I find that a finding on the issue of negligence is
only necessary in deciding the amount of a civil penalty pursuant
to Section llO(i) of the act. Hence, a decision on the issue of
negligence at this stage of the proceedings would not be in harmony
with the statutory scheme for enforcement of violations set forth
in the Act, which provides for the Secretary to initially propose
a penalty (See, Section lOS(c) and 110 of the Act}.

512

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

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

22041

MAR 301992
ROCHESTER & PITTSBURGH COAL
Contestant

CONTEST PROCEEDINGS
Docket No. PENN 88-309-R
Citation No. 2889075; 8/24/88

v.
SECRETARY OF LABOR 6
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)u
Respondent

Docket No. PENN 88-310-R
Citation No. 2889167= 9/6/88
~

Greenwich Collieries No. 2
Mine
Mine ID

36-02404

DECISION ON REMAND
Before:

Judge Weisberger

The Commission remanded this case to me for further
Proceedings consistent with its decision, Rochester and
Pittsburgh Coal Company, 14 FMSHRC 37 (1992)). On February 5,
1992, in a telephone conference call with counsel for both
parties, counsel indicated, that in the event the issues raised
by the Commission's Decision cannot be settled, briefs will be
filed by April 6, 1992. on March 9, 1992, in a follow-up
telephone conference call with counsel with both parties, counsel
indicated their intention to rely on their previously filed post
hearing briefs and that supplemental briefs, if any, will be
filed by March 20, 1992. The Operator filed a brief on
March 19, 1992.
The factual background of these cases is set forth in the
Commission's decision, Rochester and Pittsburgh, supra, at 38-40,
and need not be repeated here.
In its Decision, the Commission,
Rochester and Pittsburgh, supra, at 41, directed as follows:
The judge should set forth findings and
conclusions as to whether the Secretary proved that the
disputed safeguard was based on the judgment of the
inspector as to the specific conditions at Mine No. 2
and on a determination by the inspector that a
transportation hazard existed tha.t was to be remedied
by the action prescribed in the safeguard. Taking into
consideration the principles announced in SOCCO I, the
judge should determine whether the safeguard notice
11
identif[ied] with specificity the nature of the hazard

513

at which it [was] directed and the conduct required of
the operator to remedy such hazard." 7 FMSHRC at 512.
If the judge finds the safeguard to have been validly
issued, he should resolve the question of whether R&P
violated the safeguard.
If the judge determines there
were violations, he should then consider whether the
violations were of a significant and substantial nature
and should assess appropriate civil penalties.

I.
Whether the safeguard was based on the judgment of the
inspector as to the specific conditions at Mine No. 2.
The evidence is not controverted that the safeguard in issue
was issued by Neven Davis, an MSHA inspector, on May 18, 1988, as
a result of having observed 2 miners unloading from an elevator,
4 or 5 metal pipes about 2 inches in diameter, and between 2 to 4
feet in length. He also had observed two cylindrical objects
about an half foot high on the floor of the elevator. Hence, I
conclude that the issued safeguard, which refers to these
objects, and requires that no person shall be transported on
cages or elevators with equipment, supplies, or other materials,
was therefore based on the judgment of the inspector as to the
specific conditions at Mine No. 2.
II.
Whether the safeguard at issue was based on a determination
by the inspector that a transportation hazard existed that was to
be remedied by the action prescribed in the safeguard.
Davis testified, with regard to the hazard that necessitated
the issuance of the safeguard, as follows:
"we have metal
objects there and these elevators have been known to speed up or
slow down at times, thereby cre.ating__ more or less the hazard of
these pipes moving or flying and then striking anybody riding the
elevator with this equipment on at this time." [sic] (Tr. 23)
Based on this testimony that has not been either rebutted,
impeached, or contradicted, I conclude that the safeguard was
issued based on the determination by Davis that a transportation
hazard existed that was to be remedied by the action prescribed
by the safeguard i.e. prohibiting persons from being transported
on an elevator with equipment supplies or other materials, aside
from the carrying of small hand tools, surveying instruments, or
technical devices.
III.
Whether the safeguard notice identified with specificity the
nature of the hazard at which it was directed and the conduct
reguired of the operator to remedy such hazard, and whether the

514

operator violated the safeguard.
In Southern Ohio Coal Company ("SOCCO I"), 7 FMSHRC 509
(April 1985), a case involving the issue of whether a notice to
provide a safeguard was violated, the Commission, at 512, held as
follows:
"···we hold that a safeguard notice must identify with
specificity the nature of the hazard at which it is directed and
the conduct required of the operator to remedy such hazard. We
further hold that in interpreting a safeguard a narrow
construction of the terms of the safeguard and its intended reach
is required. 11 The Commission, in SOCCO I,supra, did not analyze
the wording of the safeguard at issue, but rather focused on
whether the specific conditions referred to in the safeguard
should have put the operator on notice that the specific
conditions cited in citation at issue fell within the safeguard 1 s
prohibitions.
In this connection, the Commission concluded that
the citation subsequently issued for an accumulation of water
a travelway, did not fall within the safeguardus prohibition
which referred to fallen rocks and cement blocks, and required 24
inches of clearance on both sides of a conveyor belt.
In Green River Coal Co Inc., 14 FMSHRC 43 {January 1992) a
safeguard had been issued by an MSHA inspector requiring 24
inches clearance on each side of the belt as a result of having
observed roof support timbers that had been installed too close
to the belt.
Subsequently, on the basis of this safeguard, the
inspector issued a citation alleging that 24 inches of clearance
had not been provided due to an obstruction caused by a roof
fall.
The Commission, in Green River, supra in referred to its
decision in SOCCO I, supra, where the safeguard had been issued
to address an obstruction caused by cement blocks and rocks, and
took cognizance of its statement in socco I, supra, 11 • • • that
further instances of physical obstructions, whether rocks, cement
blocks, construction materials, mine equipment, or debris, would
fall within the scope of the safeguard" (7 FMSHRC at 513).
In
this connection, the Commission explicitly stated that its
disagreement with the following argument of the Secretary:
" .•. because the safeguard notice and citation in this case cover
'physical obstructions', roof support timbers and fallen rock,
the citation was validly issued . . • . 11 (Green River, supra at 46).
Instead, the Commission reiterated its explanation in socco I,
supra, that 11 • • • strict construction of safeguards is premised
upon the unique process by which safeguards are issued." (Green
River, supra, at 46).
In the same fashion, the Commission, in Green River, supra,
at 47, took cognizance of the inspector's belief 11 • • • that
whenever a clear travelway was not provided for whatever reason,
he should issue a citation, even though an obstruction caused by
fallen rock was not specifically addressed in the safeguard

515

notice."

However, the Commission concluded, as it did in

socco I, supra, that a safeguard " ••• must identify with

specificity the nature of the hazard against which it is directed
and the conduct required of the operator to remedy the hazard."
(Green River, supra, at 47).
In addressing the directives of the Commission on remand,
and following the analysis of the Commission in socco I, supra,
and Green River, supra, I conclude that the Safeguard herein did
not identify with specificity the nature of the hazard against
which it was directed. The safeguard does not explicitly set
forth any hazard. 1 Further, even if it be assumed that the
hazards described are the pipes and cylindrical objects
themselves, the safeguard, rather than prohibiting these specific
hazards, instead proscribes a broad category of equipment,
supplies, or other materialso
I agree with the position of the
Contestant 0 that if the Secretary believes that men should not be
transported with equipment supplies and other materials 0 the
proper procedure is to promulgate a mandatory standard under
section 101 of the Federal Mine Safety and Health Act of 1977. I
also do not find that the exc.lusion of the carrying of small hand
tools, surveying instrumentsu or technical devices from the
provisions of the safeguard, renders the prohibition of
equipment 9 supplies, or other materials sufficiently specific to
validate the safeguard. In addition, given the strict
construction to be accorded the safeguard, I also conclude that a
dolly approximately two feet high, tapered toward its rectangular
base that was approximately one foot by two feet, is not within
the scope of the prohibition of the safeguard which referred to
metal pipes and "large" cylindrical objects.

1

The objects mentioned in the safeguard i.e. metal pipes and
cylindrical objects, are not hazard::f·per se, as Davis, in
describing the hazard involved in transporting this equipment in
elevator with persons, described the creation of a hazard of the
pipes moving and hitting the person in the elevator as a
consequence of the elevator speeding up or slowing down. He did
not describe any hazard of the pipes or cylindrical objects
per se. Also, I note that in socco I, supra the Commission did
not indicate that the objects refered to in the safeguard i.e.
the presence of cement blocks and rocks, constituted a hazard per
se. To the contrary, the Commission recognized that the objects
themselves did not constitute the hazard, but the hazard was that
of stumbling.
In this connection the Commission stated as
follows:
"The presence of these solid objects in the walkway
would present an obvious stumbling hazard and depending on the
amount of material or debris, could prevent passage altogether."
socco I, supra at 513.

516

For all the above reasons I conclude that although the
safeguard was validly issued, Contestant herein did not violate
the safeguard. Accordingly I find that the notices of contest
herein shall be sustained, and that Citation Nos. 2899095, and
2889167 be DISMISSED.

~~

Avram Weisberger
Administrative Law Judge

Distribution:
Carl Charneski, Esq., Office of the Solicitoru U.S. Department of
Labor, 4015 Wilson Boulevardu Room 516u Arlingtonu VA 22203
(Certified Mail)
Joseph A. Yuhas, Esq., Tanoma Mining Company, RD #1 1 Box 40 1
Barnesboro, PA 15714 (Certified Mail)
nb

517

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

20006

MAR 311992

DISCRIMINATION PROCEEDING

CLIFFORD MEEK,
Complainant

Docket No. LAKE 90-132-DM
MSHA Case No. UC MD-90-06
ESSROC CORPORATION,
Respondent
FINAL ORDER

Before:

Judge Fauver

This is a discrimination proceeding under § 105(c) (1) of the
Federal Mine Safety and Health Act of 1977u 30 U.S.C § 801 et~
A decision on liability was entered December 14, 1991, finding
that Respondent discriminated against Complainant by refusing to
employ him because of protected activities.
A supplemental
decision was entered on January 31, 1992, denying a motion to
dismiss.
The matter has been pending a final order on monetary
relief.
After extensive exchanges between the parties, and submissions
to the judge, of factual positions, documents, legal arguments, and
proposals for monetary relief, Complainant filed a revised proposed
order for back pay interest, and an attorney fee through March 2,
1992.
After considering this proposal and Respondent's reply, an
Order was entered on March 10, 1992, directing the parties to
exchange and file by March 30, 1992, certain information needed for
a final order for monetary relief.
Complainant has filed the
additional information, and states that Respondent has not
furnished the items specified in the Order, i.e., W-2 statements
and quarterly gross wages for its hourly employees at the
Middlebranch Plant for the period from February 27, 1990, to March
1, 1992.
The premises considered, Complainant's request on March 30,
1992, for an order granting monetary relief is GRANTED, and it is
therefore ORDERED that:
1.
Respondent shall pay to Complainant, within 30 days from
the date of this Order, the following damages due from February 27,
1990, through March 2, 1992:

518

Back Pay and Interest - - - - $24,000.00
Attorney Fee and
- - - - $17,065.80
Litigation costs
$41,065.80

2.
Respondent's liability for back pay, interest and an
attorney fee and litigation costs after March 2, 1992, shall
continue to accrue until this case including any appeals is
concluded.
3.
The prior Decisions herein and
Final Order
constitute the judge's final disposition of this proceeding.

U)Jl>~~~~

William Fauver
Administrative Law Judge

Distribution~

Robert J. Tscholl p Esq. p Roetzel & Andress:, 220 J:Viarket Avenue 1
South 1 Suite 502u Cantonr OH 44702 (Certified
John C. Ross, Esq., Ross & Robertsonu Po 0. Box 35727u Canton 1 OH
44735 (Certified Mail)
/fas

519

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virg_inia 22041

HAR 311992

HARMAN MINING COMPANY
Contestant

)

CONTEST PROCEEDING(S)

)

)
)
)
)
)
)

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

Master Docket No. 91-1
DOCKET NOS. VA 91-270-R
through VA 91-287-R
Citation Nos. 9861336
through No. 9861344
Mine~
Greenbrier No. 1

)
)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION
Petitioner

}

PENALTY PROCEEDING(S)

)

)
)
)

Master Docket No. 91-1
DOCKET NO. VA 91-536
A.C. No. 44-06259-035560

)
)

HARMAN MINING CORPORATION
Respondent

)

Mine:

Greenbrier No. 1

)

DECISION APPROVING SETTLEMENT
ORDER OF DISMISSAL
Before:

Judge Broderick

On March 26, 1992, the Secretary filed a motion to approve
a settlement between the parties in the above cases.
The cases
involve nine alleged violations of 30 C.F.R. § 70.209(b), each of
which was originally assessed at $1;"300.
The Secretary continued
to assert that. the violations resulted from a deliberate act,
which is denied by the mine operator.
The degree of negligence
is disputed, and the parties agree to the reduction in the total
penalties from $11,700 to $9,360.
§

I have considered the motion in light of the criteria in
llO(i) of the Act and conclude that it should be approved.

Accordingly, the settlement motion is APPROVED.
The
operator is ordered to pay within 30 days of the date of this
order the sum of $9,360 for the violation(s) charged in these
proceedings.

520

IT IS FURTHER ORDERED that the contest proceedings are
DISMISSED.

V/v~ ,,4-J3vv~c/"--

j

James A. Broderick
Administrative Law Judge

Distribution:
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
Thomas R. Scott, Esq. 1 Street, Street, Street 1 Scott and Bowman
339 West Main Street, P.O. Box 2100, Grundy, Virginia 24 4

521

522

ADMINISTRATIVE LAW JUDGE ORDERS

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

MAR 5- -1992
In Re:

CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

Master Docket No. 91-1

ORDER DENYING MOTION TO EXCLUDE EXPERT
WITNESS AND TO IMPOSE THE SANCTIONS
SOUGHT BY THE SECRETARY
ORDER TO U.S. STEEL TO SERVE AMENDED
EXPERT WITNESS REPORT

on February 20 / 1992 1 the Secretary of Labor (Secretary) f
a motion to exclude Andrew McFarland as an expert witness 0 and to
bar U.S. Steel Mining Co., Inc. (U.S. Steel) from participating
expert witness discovery.
U.S. Steel filed an dpposition to the
motion on March 2, 1992.
I

Following a Prehearing Conference on June 19, 1991, I issued
a Prehearing Order Adopting Plan and Schedule of Discovery
(Discovery Plan) which had been submitted by the Secretary after
negotiations with counsel for some of the mine operators. Section
II.C. of the Discovery Plan required the Secretary and the other
parties to exchange lists of expert witnesses they anticipate using
at trial.
It also required that the expert witnesses "prepare a
written report stating their credentials,
all opinions or
conclusions to which the expert expects to testify ... , and a
summary of any test, study, results, or evaluations which form the
bases for such conclusions or opinions." The Discovery Plan has
been amended, most recently on December 3, 1991, (the Fourth
Amended Discovery Plan) , and the time for exchanging expert witness
lists and reports of expert witnesses has been extended, but the
language from Section II. C. quoted above has not been changed.
At the Prehearing Conference, counsel for U.S. steel stated
that the Discovery Plan requirement that expert witnesses provide
a summary of any tests, studies, results, or evaluations was "a bit
burdensome" and was more than required by Rule 26 of the Federal
Rules of Civil Procedure.
He suggested an amendment to the
Discovery Plan to delete the requirement for providing a summary of
any tests, etc.
After discussion with counsel for the Secretary
and U.S. Steel, the requirement was retained.
(Prehearing Conf.
Tr. 54-57).

523

II

The Secretary argues that the report of Dr. McFarland
submitted by U.S. Steel does not comply with the Discovery Plan in
that it fails to state the substance of his opinions and
conclusions, and fails to describe "in any detail" the tests he
performed, the results of the tests, or his evaluation of those
results. Dr. McFarland does not descr.ibe the experiments to which
he refers in his report, any data related to the experiments, or
the results of the experiments.
The Secretary argues that U.So
Steel's failure to comply with the Discovery Plan prejudices her
case because she is not able to prepare for a deposition of the
expert. She contends that U.S. Steel's failure to comply with the
order is flagrant and indicative of bad faitho
Because of thisv
she asks for sanctions against U. So Steel~
to exclude Dr.
McFarland as an expert witness, to prohibit U. s. steel from
exchanging Or. McFarland 1 s work with any other party in the case:
and to prohibit U.S. Steel from deposing the Secretary 0 s experts.
U.S. Steel contends' in its opposition that the four page
report submitted by Dr. McFarland contains the opinions and
conclusions to which he will testify v and a summary of the
experiments conducted under his direction concerning the handling
of dust filter cassettes. It asserts that the report complies with
the requirements of the Discovery Plan.
The opposition also
discusses the reports of experts served upon U.S. Steel by the
Secretary, although no action is pending before me concerning such
reports, only some of which have been filed with me (there is no
requirement they be filed).
III

The Discovery Plan mandates an exchange of expert witness
lists by the parties so that these witnesses may be deposed during
the joint discovery phase of these proceedings.
It requires an
exchange of the reports of such witnesses to facilitate and
expedite the depositions. Although.the Plan does not require the
reports to include the detail exhibited by some which have been
filed with me, it does direct that a summary of any tests, studies,
results, or evaluations be furnished. Dr. McFarland's report does
not meet this requirement: it does not, in summary or otherwise,
state what tests or experiments were performed and what the results
of the experiments were. The report is not adequate to facilitate
and expedite Dr. McFarland's deposition by the Secretary's counsel.
I conclude that it does not comply with Section II. c. of the
Discovery Plan.
IV

The fact that U. s. Steel has not fully complied with the
Discovery Plan does not in itself show bad faith, and I am not
disposed to infer bad faith.
The failure to comply is not in my

524

judgment "flagrant," but it should be remedied.
To exclude U.S.·
Steel's expert from testifying in these proceedings is too drastic
a remedy. Although such a sanction would be related to the failure
to comply, and would certainly penalize U.S. Steel, it would also
penalize the Commission since Dr. McFarland's testimony could be
important in resolving the disputed issues.
Cases before the
Commission are not duels, but attempts to ascertain the truth lying
behind factual disputes so that the Commission can apply the
provisions of the Mine Act·to the facts.
To bar U~S. Steel from
participating in further expert discovery bears no relation to its
failure to comply.
I therefore reject the sanctions proposed by
the Secretary. U. s. Steel, however 1 is required to comply with the
terms of the Discovery Plan, and I will order it to file with me
and serve upon the Secretary, a report from its expert witness, Dro
McFarland, which describes, at least in summary fashion 1 the tests
and experiments which he conducted or directed 1 the results of such
tests and experiments, and his conclusions based upon these tests
and experiments.
ORDER

Based upon the above discussion IT IS ORDERED
lo
The Secretary 1 s motion to exclude Dr" McFarland as an
expert witness is DENIED;

The
Secretary 1 s
motion
to
bar
U. s.
participating in further expert discovery is DENIED;
2.

Steel

from

3.
U.S. Steel shall, within 10 days of the date of this
order, file with me and serve upon the Secretary a report from its
expert witness, which describes the tests and experiments he
conducted or directed, the results of such tests and experiments,
and his conclusions based thereon.

. /.

A.'·t.J<~·>
--"'
.

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;
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/~4'/lv:n
/·,..../ ;,.,.,/(./-~ ·· t v-C '~./

~ James A. Broderick
Administrative Law Judge

Distribution:
Douglas N. White, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
John c. Palmer, IV, Esq., Robinson and McElwee,
Charleston, WV 25326 (Certified Mail)
All Others by Regular Mail
/fas

525

P.

o.

Box 1791,

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

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

22041

MAR 111992
CIVIL PENALTY PROCEEDING

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

Docket Noo PENN 91-1456
Ao C. NOo 36-00929-03720
Marion Mine

Vo

TUNNELTON MINING COMPANYu
Respondent
DECISION DENYING SETTLEMENT MOTION
Before~

Judge Fauver

This case is a petition for assessment of a civil penalty
under§ 105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seq.
The parties have moved for approval of a settlement.

The Meaning of a "Significant and
Substantial" violation
Since the settlement motion proposes to reduce the alleged
violation from a "significant and substantial" violation to a "nonsignif icant and substantial" violation, it will be helpful to
review the meaning of this statutory term.
The Commission has held that a violation is "significant and
substantial" if there is a "reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably
serious nature." U.S. Steel Mining Co., Inc., 7 FMSHRC 327, 328,
(1985); Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
(1981); Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984). This evaluation
is made in terms of "continued normal mining operations."
Steel Mining co., Inc. 6 FMSHRC 1573, 1574 (1984). The question of
whether any particular violation is significant and substantial
must be based on the particular facts surrounding the violation.
Texasgulf, inc., 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal
Company, 9 FMSHRC 1007 (1987).
Analysis of the statutory language and the Commission's
decisions indicates that the test of an S&S violation is a
practical and realistic question whether, assuming continued mining
operations, the violation presents a substantial possibility of

526

resulting in in]ury or disease, not a requirement that the ·
Secretary of Labor prove that it is more probable than not that
injury or disease will result. See my decision in Consolidation
Coal company, 4 FMSHRC 748-752 (1991). The statute, which does not
use the phrase "reasonably likely to occur" or "reasonable
likelihood" in defining an S&S violation, states that 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)(l) of
the Act; emphasis added). Also, the statute defines an "imminent
danger" as "any condition or practice .•• o which could reasonably be
expected to cause death or serious physical harm before [it] can be
abated," ~ and expressly places S&S violations below an imminent
2
danger.
It follows that the Commissionus use of the phrase
"reasonably likely to occur" or Hreasonable likelihoodn does not
preclude an s&s finding where a substantial possibility of injury
or disease is shown by the evidenceu even though the proof may not
show that injury or disease was more probable than noto
The Proposed Settlement
The inspector issued Citation Nao 3484197u alleging
violation of 30 C.FoRo § 75.604(b) on the ground that the trailing
cable to a roof bolter was not Heffectively insulatedu and [did]
not effectively exclude moisture" because there was "an opening
measuring 1/2 inch by 1 1/2 inches through the outer insulated
jacket, and the inner insulated conductors [were] exposed."
The settlement motion states that the exposed inner insulation
of the cable was intact and, therefore, injury was "unlikely to
occur." However, it does state or indicate that the opening in the
cable did not present a substantial possibility of injury, e.g.u
the exposure of the inner insulation rendering it vulnerable to
cutting or breaking, with moisture reaching live conductors, by
forces that would not penetrate the inner insulation if the outer
jacket were intact, or the possibility of moisture entering the
outer jacket reaching an existing"-but unseen nick in the inner
insulation.

1 Section

3(j) of the 1969 Mine Act, unchanged by the Federal
Mine Safety and Health Act of 1977; emphasis added.
2

Section 104(d) (1) limits S&S violations to conditions that
"do not cause imminent danger •••• "

527

Accordingly, the settlement motion is DENIED. The proposal to
reduce the penalty from $136 to $86 will be approved if the motion
is amended to delete the change to non-s&s, or if the parties show
sufficient facts to warrant such a change.

{)),;~ ~ti<AVh/

William Fauver
Administrative Law Judge

Distribution:
Theresa C. Timlin, Esq., Office of the Solicitoru U.So Department
of Labor, 14480-Gateway Building, 3535 Market Streetu Philadelphiau
PA 19104 (Certified Mail)
Joseph A. Yuhas, Esq., Tunnelton Mining Companyu
Ebensburg, PA 15931 (Certified Mail)
/fas

528

P. Oo

Box 367u

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

MAR 19 1992
IN RE:

CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

Master Docket Noo 91-1

ORDER GRANTING IN PART MOTION TO
COMPEL FURTHER EXPERT DISCOVERY

on March 12, 1992, the Secretary of Labor (Secretary) filed a
Motion to Compel Further Expert Discovery.
In particular, the
Secretary seeks an order compelling the production of documents
utilized by expert witnesses identified by the law firms Buchanan
Ingersoll, Crowell & Moring, Jackson & Kelly and smithQ Heenan &
Althen (the four law firms) in preparing their reports, and those
documents which reflect the results of tests performed by the
experts.
In addition the Secretary seeks access to the
experimental filters created by those experts, for the purposes of
inspection, photographing and videotaping.
A response to the motion was filed on behalf of the four law
firms on March 16, 1992. on March 18, 1992, at the request of the
parties, I heard further argument on the motion in a telephone
conference call with Laura Beverage, Esq., representing the four
law firms, and Richard Gilman, Esq., representing the Secretary.
At the conclusion of the call, I announced my decision on the
motion, and am reducing it to writing by this order.

The Secretary seeks the production of documents and access to
the experimental filters in order to more effectively examine
Contestants' experts in their scheduled depositions. Section II. c.
of the Discovery Plan requires the parties to exchange expert
witness lists by January 24, 1992.
Each expert must prepare a
report with his credentials and all opinions and conclusions to
which he expects to testify and a summary of tests, studies, etc.,
forming the basis for his conclusions or opinions. Section II.C.3.
provides that all costs associated with expert depositions shall be
governed by Rule 26(b) (4) of the Federal Rules of Civil Procedure.
Because this motion relates to expert witness discovery, even
though it deals with documents and tangible things, it is governed
by Rule 26(b) (4) rather than 26(b) (3). The documents and tangible
things are sought to assist in and facilitate the deposition of
expert witnesses.

529

II

The nature of these cases and the evidence of which I am aware
make it clear that expert opinion evidence will be important,
perhaps critical, in arriving at a decision. For this reason, the
depositions of expert witnesses are highly important to the parties
and to the Commission, in order that the witnesses• opinions can be
tested by informed cross-examination.
The experts' reports are
voluminous and involve complex tests, and physical and mathematical
formulae. To conduct adequate and meaningful examination of the
experts, counsel must understand the background and bases for their
reports.
Accordingly, I will grant the Secretary's motion to
produce the documents and things referred to in the motion"
III

The "back-up data 19
referred to in the Secretary a s motion
consists of documents utilized by the experts in preparing their
reports, and documents reflecting the results of tests performed by
the experts. These documents are detailed in paragraphs numbered
3 through 8 in the letter of·March 6 1 1992 from Mro Gilman to Mso
Beverage, appended as attachment A to the Secretary 0 s motion
Because these are existing documentsu copies should be made
available to the Secretary without costo Further 0 the identity of
persons who assisted in the preparation of the reports and samples
of the coal dust used in the experimental samples (numbers 9 and 10
of attachment A) should be made available to the Secretary without
cost.
o

IV

Some or all of contestants• experts created and tested
experimental dust filters as part of their studies. A large number
of such filters were created and tested by two of the experts and
they form an important part of their conclusions and reports. It
is important that the Secretary be permitted to inspect these
filters in preparation for her · deposing the expert witnesses.
However, examining, testing, photographing and videotaping these
filters may take considerable time and involve some expense.
I
conclude that the Secretary, as the party seeking discovery, should
be required to pay the reasonable expenses associated with making
the filters available.
(The parties agree that under Rule
26(b) (4) (c), the party seeking discovery will pay the expert a
reasonable fee for the time spent in his deposition).
I do not
believe that manifest injustice will result from requiring the
Secretary to pay these expenses •. I have considered and reject the
Secretary's contention that because she made the cited filters and
other filters available in the fact discovery phase without cost to
the operators, it is manifestly unjust to require her to bear the
expenses incidental to making the experts' filters available in
order that she may prepare for their depositions.

530

The reasonable expenses associated with making the filters
available will include the cost of providing technician(s) to
assemble the filters and oversee the Secretary's inspection of
them.
The parties will attempt to agree on what the reasonable
expenses are and, if they are unable to agree, will return to me
for a further ruling.

v
The Secretary's motion states that Dr. Malloy and Dr. Yao
(listed as expert witnesses by Smith, Heenan and Althen) are
employees of a party and therefore Rule 26(b) (4) (C) does not apply
to them.
After discussion during the conference call v
was
agreed that further consultation between counsel with respect to
the status of these witnesses is necessaryv and I am not now ruling
on the applicability of Rule 26(b) (4)(C) to them.
ORDER

In accordance with the preceding discussion, the Secretaryvs
Motion to Compel Further Expert Discovery is GRANTED u with the
condition that the Secretary shall pay the reasonable expenses
associated with making the expert witnessesu experimental filters
available for inspectionv photographing or videotapingo

)V;AN-s~ ~#3:Vie4'~~
.i

j'

>.or

James A. Broderick
Administrative Law Judge

Distribution:
Douglas N. White, Esq., Richard L. Gilman, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)
Laura E. Beverage, Esq., Jackson & Kelly,
Charleston, WV 25322 (Certified Mail)

P.

o.

Box

553,

Timothy M. Biddle, Esq., Crowell and Moring, 1001 Pennsylvania
Avenue, N.W., Washington, D.C. 20004 (Certified Mail)
Michael T. Heenan, Esq., Smith, Heenan and Althen, 1110 Vermont
Avenue, N.W., Washington, D.C. 20005 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, 600 Grant Street, 58th
Floor, Pittsburgh, PA 15219 (Certified Mail)
All others regular mail.
/fas

531

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

22041

MAR 26 1992
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 91-1375
A. C. No. 36-04281-03736

v.

Dilworth Mine

CONSOLIDATION COAL COMPANY,
Respondent

DECISION DENYING SETTLEMENT MOTION
Before~

Judge Fauver

This case
a petition for assessment of c
penal ties
under§ 105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801
seg.
The parties have moved for approval of a settlement.
The Meanina of a "Significant and
Substantial" Violation
Since the settlement motion proposes 1 to reduce some of the
alleged violations from "significant and substantial" to "nonsignificant and substantial" violations, it will be helpful to
review the meaning of this statutory_,term.
The Commission has held that a violation is "significant and
substantial" if there is a "reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably
serious nature." U.S. Steel Mining Co., Inc., 7 FMSHRC 327, 328,
(1985); Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
(1981); Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984). This evaluation
is made in terms of "continued normal mining operations."
u. s.
Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 {1984). The question
of whether any particular violation is significant and substantial
1 The motion states that after discussion the "significant and
substantial 11 designation was "deleted. 11 However, the Secretary has
no authority to change an allegation of violation after filing a
civil
penalty proceeding,
without approval
of
the
judge.
Accordingly, the "deletions" will be considered as a settlement
proposal to amend the citations.

532

must be based on the particular facts surrounding the violation.
Texasaulf, Inc., 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal
Company, 9 FMSHRC 1007 (1987).
Analysis of the statutory language and the Commission's
decisions indicates that the test of an S&S violation is a
practical and realistic question whether, assuming continued mining
operations, the violation presents a substantial possibility of
resulting in injury or disease, not a requirement that the
Secretary of Labor prove that it is more probable than not that
injury or disease will result.
See my decision in Consolidation
Coal Company, 4 FMSHRC 748-752 (1991). The statute, which does not
use the phrase "reasonably likely to occur 11 or "reasonable
likelihood" in defining an S&S violationf states that 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) (
of
the Act; emphasis added). Also, the statute defines an nimminent
danger 11 as "any condition or practice ••. which could reasonably be
expected to cause death or serious physical harm before [it] can be
abated," 2 and expressly places S&S violations below an imminent
3
danger.
It follows that the Commission" s use of the phrase
"reasonably likely to occurn or 11 reasonable likelihood 19 does not
preclude an S&S finding where a substantial possibility of injury
or disease is shown by the evidence, even though the proof may not
show that injury or disease was more probable than not.
Proposed settlement

Citation No. 3702181 was issued for a violation of 30 C.F.R.
77.205 when the inspector observed that the travelway to the
electrical switch box was obstructed by a wooden pallet and old
desks, creating a tripping hazard.
§

The motion states that, "while the pallet lay horizontal under
the switch box, thus creating a possible tripping hazard, the desks
were not directly in front of the box, and less likely to create a
tripping hazard.
Thus, the likelihood of being injured is less
that originally assessed."
The motion does not state or indicate that the pallet and
desks did not present a substantial possibility of causing a
tripping accident. Accordingly, the proposal to reduce the charge
to a non-S&S violation will be denied.

2

Section 3(j) of the 1969 Mine Act, unchanged by the Federal
Mine Safety and Health Act of 1977; emphasis added.
3

Section 104(d) (1) limits S&S violations to conditions that
"do not cause imminent danger •..• "

533

_
citation Nos. 3702182 and 3702187 were issued for violations
of 30 C.F.R. § 77.513 when the inspector observed that electrical
control switch boxes were not provided with insulating mats nearby.
The motion states that, while "the mats were placed on the
outside wall to the electrical control switch boxes and within 10
feet of the switch box, this placement does not meet the condition
that the mat be kept in place.
Moreover, while the electrical
control switch boxes were Delta grounded system, externally
grounded, a shock hazard was still possible depending on the method
of installation and on the conditions existing at the switch boxes,
such as whether it was wet. The shock hazard would be eliminated
by the use of the insulating mats, whichv though not in place, were
nearby.
Therefore, the likelihood of being injured is less than
originally assessed."
The motion does not state or indicate that the failure to keep
the insulated mats in place did not present a substantial
possibility of resulting in an electrical injury.
Accordingly,
the proposal to reduce the charges to non-S&S violations will be
denied.
The settlement proposals as to Citations 3702191 and 3702193
are appropriate and if resubmitted in a revised motion will be
approved.
ORDER

WHEREFORE IT IS ORDERED
1.

that:

The settlement motion as a whole is DENIED.

2.
The parties may submit a revised motion as to all or any
of the citations involved.
3.
The citations not approved for settlement will proceed to
hearing at a date to be set.

()}~~~~v~
William Fauver
Administrative Law Judge

534