DECEMBER 1987
COMMISSION DECISIONS
12-11-87
12-11-87
12-21-87
12-23-87
12-29-87

WEST 86-35-R
LAKE 86-21-R
CENT 86-59-R
WEST 87-130-R
KENT 86-23-D

Pg.
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Pg.
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1997
2007
2015
2028
2033

WEST 87-172
TIC-The Industrial Company
PENN 87-25-R
Otis Elevator Company
UMWA on behalf of Robert L. Cox v. Peabody Coal KENT 84-224-D
UMWA on behalf of Jinnny Johnson v. Peabody Coal KENT 86-65-D
UMWA on behalf of Richard Jarvis v. Peabody Co. KENT 86-66-D
Ronald.Sizemore v. Whitaker Coal Corporation
KENT 87-223-D
Greenwich Collieries
PENN 85-188-R
Mid-Continent Resources, Inc.
WEST 87-74
Secretary of Labor on behalf of John P.
PENN 87-177-D
Grinder v. Karl's Drilling Co., Inc.
PENN 87-50
Rochester & Pittsburgh Coal Copmany
PENN 87-121-R
Randy Rothermel/Tracey Partners
WEVA 85-169
Quinland Coals, Inc.
WEVA 87-129-R
Consolidation Coal Company
Bobby Sizemore v. Nally & Hamilton Ent.
KENT 87-196-D
Consolidation Coal Company
WEVA 87-69
LAKE 86-58-R
White County Coal Corporation
WEST 87-204-M
M & M Construction Inc.
Youghiogheny & Ohio Coal Company
LAKE 86-30-R
Birchfield Mining Incorporated
WEVA 87-272
Secretary of Labor on behalf of Richard W,
SE
87-44-DM
Haviland v. Occidental Chemical Co.

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2035
2038
2045
2046
2047
2048
2051
2058
2068
'
2069
2127
2159
2161
2167
2174
2200
2204
2207
2209
2215

Emery Mining Corporation
Youghiogheny & Ohio Coal Company
Austin Power, Inc.
Utah Power & Light Co., Mining Div.(Order)
Harley M. Smith v. Bow Valley Coal Resources

ADMINISTRATIVE LAW JUDGE DECISIONS
12-01-87
12-02-87
12-03-87
12-03-87
12-03-87
12-04-87
12-07-87
12-07-87
12-08-87
12-09-87
12-09-87
12-10-87
12-15-87
12-15-87
12-16-87
12-22-87
12-28-87
12-29-87
12-29-87
12-30-87

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DECEMBER 1987
Review was granted in the following cases during the month of December:
Secretary of Labor, MSHA v. Otis Elevator Company, Docket No. PENN 86-262.
(Judge Maurer, November 11, 1987).
Secretary of Labor on behalf of Roger Lee Wayne, Sr. v. Consolidation Coal
Company, Docket No. WEVA 87-89-D. (Judge Weisberger, November 20, 1987).
Review was denied in the following cases during the month of December:
Emerald Mines Company v. Secretary of Labor, MSHA, Docket No. PENN 85-298-R.
(Judge Melick, November 2, 1987).
Eddie Johnson v. Scotts Branch Company, Docket No. KENT 87-26-D.
Koutras, November 2, 1987).

(Judge

Utah Power & Light Company, Mining Division v. Secretary of Labor, MSHA, and
United Mine Workers of America, Docket Nos. WEST 87-130-R, etc. (Petition
for Interlocutory Review of Judge Morris' October 14, 1987 Order).
Secretary of Labor, MSHA v. NACCO Mining Company, Docket No. LAKE 85-87-R,
LAKE 86-2. (Judge Merlin, November 19, 1987).

I

COMMISSION DECISIONS

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

December 11, 1987

EMERY MINING CORPORATION
v.

I Docket No.

WEST 86-35-R

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

BEFORE:

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

BY THE COMMISSION:
This proceeding arising under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act"), requires the
Commission to determine the meaning of the term "unwarrantable failure"
as used in section 104(d) of the Mine Act. 30 U.S.C. § 814(d). For the
reasons that follow, we conclude that unwarrantable failure means
aggravated conduct, constituting more than ordinary negligence, by a
mine operator in relation to a violation of the Act.
I.

This proceeding involves a violation by Emery Mining Corporation
Emery 21 ) of 30 C.F.R. § 75.200, the mandatory underground coal mine
roof control standard. Commission Administrative Law Judge John J.
Morris found that the violation occurred and was the result of Emery 1 s
unwarrantable failure to comply with the cited standard within the
meaning of section 104(d)(l) of the Mine Act. 30 U.S.C. § 814(d)(l). l/
(

11

ll

Section 104(d)(l) of the Act states in part:
If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds
that there has been a violation of any mandatory
health or safety standard, and if he also finds
that, while the conditions created by such violation

1997

8 FMSHRC 930 (June 1986)(ALJ). The sole issue on review is whether this
finding of unwarrantable failure was proper. For the reasons that
follow, we conclude that Emery did not exhibit the kind of aggravated
conduct necessary to sustain a finding of unwarrantable failure.
Accordingly, we reverse.
Emery's Deer Creek mine is an underground coal mine located in
Huntington, Utah. On October 22, 1985, Emery's safety department
received reports that along the First South haulage track, between the
No. 65 and No. 66 crosscuts, a section of chain link mesh was hanging
from the roof. That same day Emery safety engineer, Gary Christensen,
was instructed to investigate the problem. Christensen was accompanied
underground by Dick Jones, an inspector of the Department of Labor's
Mine Safety and Health Administration ( 11MSHA11 ) , and by Max Tucker, a
member of the union safety committee.
Along the haulage track, between the No. 65 and No. 66 crosscuts,
chain link mesh had been bolted to the roof. Christensen found three or
four inches of loose coal resting on the mesh. The coal had broken from
the roof, fallen onto the mesh, and caused the mesh to sag. While
Christensen clipped the mesh to remove the coal, Jones and Tucker
examined the surrounding area and found four roof bolts, each of which
was missing its siX7-iiich-square bearing plate. The MSHA inspector
believed that the pressure of the roof had "popped" the bearing plates
off the bolts. Approximately 10 feet away from these bolts, fallen coal
had caused the chain link mesh to sag and press across a trolley guard.
Inspector Jones concluded that the roof conditions between the No.
65 and No. 66 crosscuts indicated that the roof was not adequately
do not cause imminent danger, such violation is of
such nature as could significantly and substantially
contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds
such violation to be caused by an unwarrantable
failure of such operator to comply with such
mandatory health or safety standards, he shall
include such finding in any citation given to the
operator under this [Act]. If, during the same
inspection or any subsequent inspection of such mine
within 90 days after the issuance of such citation,
an authorized representative of the Secretary finds
another violation of any mandatory health or safety
standard and finds such violation to be also caused
by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area
affected by such violation ... to be withdrawn from,
and to be prohibited from entering, such area until
an authorized representative of the Secretary
determines that such violation has been abated.
30 u.s.c. §&14(d)(l).

1998

supported in violation of section 75.200. ~/ Having made further
findings that the violation was of a significant and substantial nature
and was the result of the operator's unwarrantable failure to comply
with the standard, the MSHA inspector issued to Emery a citation
pursuant to section 104(d)(l) of the Mine Act (n. 1, supra).
Emery contested the citation, asserting that it was not in
violation of section 75.200 and that, in any event, the violation was
not the result of its unwarrantable failure. Following an evidentiary
hearing, the judge credited the inspector's testimony that a lack of
adequate roof support was shown by virtue of the four roof bolts that
had 11 popped 11 their plates. 8 FMSHRC at 935. The judge held that the
sagging in the chain link mesh itself did not violate the standard, but
served to focus attention on the area of the entry where the violation
occurred. Id. Noting that the First South haulage track was a
regularly traveled entry in the mine, the judge concluded that the roof
bolts had "popped" their plates at least a week before October 22, and
that Emery's safety personnel, who were required to inspect the haulage
track for safety hazards, "should have known of the condition."
8 FMSHRC at 936. The judge therefore concluded that the violation was
due to Emery's unwarrantable failure to comply with section 75.200.
Id.
On review Emery contends that if the judge's decision stands, any
violation in an active area of a mine will be an unwarrantable failure
violation because supervisors and preshift examiners travel through and
inspect all such areas. Emery argues that the judge's decision
construes unwarrantable failure as equivalent to ordinary negligence and
that only a more stringent legal standard, one involving aggravated
conduct, can be the basis for an unwarrantable failure finding. }/ We
agree.

~/

Section 75.200 provides in part:
Each operator shall undertake to carry out on a
continuing basis a program to improve the roof
control system of each coal mine and the means and
measures to accomplish such system. The roof and
ribs of all active underground roadways, travelways 2
and working places shall be supported or otherwise
controlled adequately to protect persons from falls
of the roof or ribs. A roof control plan and
revisions thereof suitable to the roof conditions
and mining system of each coal mine and approved by
the Secretary shall be adopted and set out in
~rinted form •.•.
(Emphasis added.)

}/
The American Mining Congress ( 11 AMC 11 ) has filed a brief amicus
curiae that essentially presents the same arguments put forth by Emery.

+999

II.

In the Mine Act the term "unwarrantable failure" appears only in
section 104(d). Its presence and use is of vital importance in the
enforcement of the Act. See Nacco Mining Co., 9 FMSHRC 1541, 1545-46
(September 1987); UMWA v. FMSHRC and Kitt Energy Corp, 768 F.2d 1477,
1479 (D.C. Cir. 1984). See also S. Rep. No. 181, 95th Cong., 1st Sess.
31 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2nd Sess., Le islative Histor of the Federal
Mine Safety and Health Act of 1977, at 619 (1978 ("Mine Act Legis.
Hist. 11 ) . Section 104(d) is an integral part of the Act's enforcement
scheme, a scheme which, as an incentive for operator compliance;
provides for "increasingly severe sanctions for increasingly serious
violations or operator behavior." Cement Division, National Gypsum
Company, 3 FMSHRC 822, 828 (April 1981). Under this enforcement scheme,
sections 104(a) and llO(a) provide that the violation of any mandatory
safety or health standard requires the issuance of a citation and
assessment of a monetary civil penalty. 30 U.S.C. §§ 814(a) & 820(a).
Under sections 104(b) and llO(b), if the operator does not correct the
violation within the prescribed period, the more severe sanction of a
withdrawal order is required and a greater civil penalty is assessed.
30 u.s.c. §§ 814(b) &~20(b).
Under section 104(d) an unwarrantable failure finding serves to
trigger the application of yet more rigorous sanctions. As the U.S.
Court of Appeals for the District of Columbia Circuit has explained:
An "unwarrantable failure" citation commences a
probationary period: If a second violation
resulting from an "unwarrantable failure" is found
within 90 days, the Secretary must issue a "withdrawal order" requiring the mine operator to remove
all persons from the area .•. until the violation
has been abated .••.
Once a withdrawal order has been issued, any
subsequent unwarrantable failure results in another
such order. This 11 chain 11 of withdrawal order
liability remains in effect until broken by an
intervening "cleantt inspection. That is, "an
inspection of such mine [which] discloses no similar
violations. 11
UMWA v. FMSHRC and Kitt Energy Corp., 768 F.2d at 1478-79 (emphasis in
original). The court described this section 104(d) "chain" of citations
and withdrawal orders, keyed to the operator's unwarrantable failure to
comply, as "among the Secretary's most powerful instruments for
enforcing mine safety." 768 F.2d. at 1479. The threat of the "chain"
is a forceful incentive for the operator to exercise special vigilance
in health and safety matters. Nacco Mining Co., supra, 9 FMSHRC at 6.
Although section 104(d) is a key element of the overall attempt to
improve health and safety practices in the mining industry (Mine Act

2000

Legis. Hist. at 618-620), the Act does not define the term "unwarrantable failure." Consequently, in determining its meaning, we must turn
to intrinsic and extrinsic aids of statutory construction. We must
examine the meaning of the term with reference to both its meaning in
ordinary usage and its context in the statute, as well as any legislative history and judicial precedent relating to "unwarrantable
failure."
We first determine the ordinary meaning of the phrase 11 unwarrantable failure." "Unwarrantable" is defined as "not justifiable" or
"inexcusable." "Failure" is defined as "neglect of an assigned,
expected, or appropriate action." Webster's Third New International
Dictionary (Unabridged) 2514, 814 (1971) ( 11Webster 1 s 11 ) . Comparatively,
negligence is the failure to use such care as a reasonably prudent and
careful person would use and is characterized by 11 inadvertence, 11
"thoughtlessness," and "inattention." Black's Law Dictionary 930-31
(5th ed. 1979). Conduct that is not justifiable and inexcusable is the
result of more than inadvertence, thoughtlessness, or inattention.
Thus, the ordinary meaning of the phrase "unwarrantable failure"
suggests more than ordinary negligence. Indeed, we note the Secretary's
position that this view of unwarrantable failure represents the intent
of the phrase. The.Secretary insists that to equate ordinary negligence
with unwarrantable failure is to "grossly mischaracteriz[e]" his
position. S. Reply Br. 3, 5.
In statutory interpretation, the ordinary meaning of words must
prevail where that meaning does not thwart the purpose of the statute or
lead to an absurd result. In re Trans Alaska Pipeline Rate Case, 436
U.S. 631, 643 (1978). Far from leading to an absurd result, construing
"unwarrantable failure" to mean aggravated conduct constituting more
than ordinary negligence produces a result in harmony with the Mine
Act's statutory enforcement scheme of providing increasingly severe
sanctions for increasingly serious mine operator behavior. Within the
Mine Act are found distinct descriptions of types of operator conduct
that evoke particular sanctions. "Negligent" conduct is considered when
proposing and assessing civil penalties. 30 U.S.C. §§ 815(b)(l)(B) &
820(i). Conduct that is "knowing" and "willful" may result in civil or
criminal sanctions against individual corporate agents. 30 U.S.C.
§§ 820(c) & (d).
Conduct determined to be characterized by an unwarrantable failure to comply with a mandatory regulation results in a section
104(d) ' 1 chain 11 of citations and orders. The Mine Act 1 s use of different
terms within the same statute demonstrates that Congress intended the
different terms to censure different types of operator conduct within a
graduated enforcement scheme. Cf. Persinger v. Islamic Republic of
Iran, 729 F.2d 835, 843 (D.C. Cir. 1984); National Insulation Transp.
Committee v. I.C.C., 683 F.2d 533, 537 (D.C. Cir. 1982).
Construing unwarrantable failure to mean aggravated conduct
constituting more than ordinary negligence is consistent with the manner
in which the Secretary enforces the Mine Act. In civil penalty cases
brought before the Commission, the Secretary often argues that an
operator was negligent in allowing a violation to exist, yet the

2001

Secretary does not assert that the operator's conduct was marked by
unwarrantable failure. Similarly, in settling civil penalty cases the
Secretary often agrees to delete unwarrantable failure findings because,
upon further consideration, the operator's negligence was less egregious
than had been believed. Equally significant, the Secretary's civil
penalty proposal regulations recognize degrees of negligence, 30 C~F.R.
§ 100.3(d), but distinguish unwarrantable failure violations as distinct
and subject to higher special penalty assessments. 30 C.F.R.
§ 100.S(b). Further, the Secretary has represented before the Commission that unwarrantable failure findings constitute approximately three
percent of the citations and orders issued by MSHA. 11 Amicus AMC
attached to its brief official MSHA reports, which indicate that in 1986
the Secretary issued 126,026 citations that were the result of
operators' "low" or "moderate" negligence, and 3,462 violations that
were the result of operators' "high negligence 11 or "reckless disregard."
The latter number roughly corresponds with the 3,572 "unwarrantable
failure" citations issued in 1986. AMC Br. 16-17 and attachments D & E.
Thus, in enforcement practice as well as in theory, the Secretary views
unwarrantable failure as aggravated conduct that is more than ordinary
negligence. See S. Reply Br. 3, 5; S. Br. 9.
Construing unwarrantable failure as aggravated conduct constituting more than ordinary negligence also is essentially in harmony with
the legislative history bearing on the term. Unwarrantable failure
sanctions first appeared in section 203(d) of the Federal Coal Mine
Safety Amendments Act of 1965. 30 U.S.C. § 472 (1966). Section 203(d)
was carried over with minor changes as section 104(c) of the Federal
Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 814(c) (1976)
(''Coal Act"), and section 104(c) was, in turn, carried over without
substantive change as section 104(d) of the Mine Act. In summarizing
the major provisions of the bill that became the Coal Act, the Conference Committee stated that unwarrantable failure to comply meant "the
failure of an operator to abate a violation he knew or should have known
existed." Senate Subcommittee on Labor) Committee on Labor and Public
Welfare, 94th Cong., 1st Sess., Part I Legislative History of the
Federal Coal Mine Health and Safety Act of 1969, at 1602 (1975) ("Coal
Act Legis. Hist."). In addition, the House Managers stated that
unwarrantable failure to comply meant "the failure of an operator to
abate a violation he knew or should have known existed, or the failure
to abate a violation because of a lack of due diligence, or because of
indifference or lack of reasonable care on the operator 1 s part. 11 Coal
Act Legis. Hist. 1512. Further, in Zeigler Coal Co., 7 IBMA 280, 295-96
(March 1977), the Interior Board of Mine Operations· Appeals interpreted
unwarrantable failure to mean the failure to abate conditions or
practices the operator "knew or should have known existed or which it
failed to abate because of due diligence, or because of indifference or
lack of reasonable care." In drafting the 1977 Mine Act, the Senate
Committee report cited Zeigler with approval. Mine Act Legis. Hist.
~/

See the Secretary's brief on review in Helen Mining Co., 9 FMSHRC
1095 (June 1987); S. Br. 11. See also statement of Solicitor of Labor,
George Salem, Nacco Mining Co.~ FMSHRC 1541 (September 1987), Oral
Arg. Tr. 20.

2002

620. 2./
Thus, the legislative histories of the Coal Act and the Mine Act
and the Board's definition in Zeigler make reference to "unwarrantable
failure" in terms of "indifference," "knew or should have known, 11 "lack
of due diligence, 11 and "lack of reasonable care." Although neither the
legislative histories nor the Board further explored the meaning of
these terms in any detail, the ordinary meanings of these terms are largely
congruent with the aggravated conduct meaning discussed above. Indeed,
in discussing aggravated conduct that constitutes unwarrantable failure,
the Commission has concurred previously with the Board's Zeigler
decision to the extent that an unwarrantable failure may be proved by
showing that a violative condition or practice was not corrected prior
to the issuance of a citation or order because of "indifference, willful
intent or serious lack of reasonable care." United States Steel Corp.,
6 FMSHRC 1423, 1437 (June 1984); Westmoreland Mining Co. 7 FMSHRC 1338,
1342 (September 1985).
The descriptions of unwarrantable conduct proffered in the
legislative histories and Zeigler in large measure harmonize with and
complement the conclusion that ~nwarrantable failure means more than
ordinary negligence. The usual meaning of "indifference" is of "little
consequence" or "total or nearly total lack of interest." Webster's
1151. In common legal parlance "indifferent" conduct is conduct more
aggravated than ordinary negligence. Prosser and Keaton on the Law of
Torts 212 (1984). Likewise, under the Mine Act a corporate agent who
"knowingly" authorizes a violation of a mandatory health or safety
standard under the Act is subject to personal civil and criminal
liability. 30 U.S.C. § 820(c). This heightened liability is clearly a
Congressional response to more serious breaches of operator conduct,
i.e., aggravated conduct. The term 11 knowingly 11 has been interpreted to
mean "knew or had reason to know." Secretary v. Kenny Richardson,
3 FMSHRC 8, 16 (January 1981), aff'd, 689 F.2d 632 (6th Cir. 1982),
cert. denied, 461 U.S. 928 (1983); Secretary v. Roy Glenn, 6 FMSHRC
1588, 1585-86 (July 1984). Therefore, the references in the legislative
history and in Zeigler to 11 indifference" and "knew or should have known 11

'fl/

Zeigler was decided on a remand from the U.S. Court of Appeals for
the District of Columbia Circuit. UMWA v. Kleppe, 532 F.2d 1403 (D.C.
Cir. 1976). The issue before the D.C. Circuit was whether an
"unwarrantable failure 11 closure order (and subsequent closure orders in
the chain) had to be based beth on "unwarrantable failure 11 and·
nsignificant and substantial findings." The court held that only a
finding that the violation was the result of the operator's unwarrantable failure to comply was required. Before the court, the UMWA had
also challenged the Board's definition of "unwarrantable failure,"
established in a prior, unappealed case. Eastern Associated Coal Co., 3
IBMA 331 (September 1974). In Eastern, the Board had defined 11 unwarrantable f ailure 11 as intentional or knowing failure to comply or reckless
disregard for the health and safety of miners. Id. at 356. The court
in Kleppe explicitly declined to address the definition of "unwarrantable failure," but left the Board the option to revisit the issue. 532
F.2d at 1407 n.7.

2003

describe aggravated forms of operator conduct.
With regard to the phrases "lack of due diligence" and 11 lack of
reasonable care" also appearing in these sources, we recognize that the
phrases, if considered in isolation, can be viewed as referring to an
ordinary negligence test. However, ascribing such a meaning to "unwarrantable failure" cannot be reconciled with either the purpose of
unwarrantable failure sanctions or with the ordinary meaning of the term
unwarrantable failure itself. Where the ordinary meaning of the phrase
"unwarrantable failure 11 complements and effectuates the enforcement
scheme of the Mine Act that meaning must prevail. As the U.S. Court of
Appeals for the District of Columbia Circuit recently stated in a
related context, "it is beyond cavil that the first step in any
statutory analysis, and our primary interpretive tool, is the language
of the statute itself." American Civil Liberties Union v. FCC, 823 F.2d
1554, 1568 (D.C. Cir. 1987). Thus, to the extent that these limited
references in the legislative history are at odds with the structure and
purpose of the Act, as well as other parts of the legislative history,
they are not controlling. Abourezk v. Reagan, 785 F.2d 1043, 1055 n.11
(D.C. Cir. 1986), cert. granted, _U.S. _ , 107 S.Ct. 666 (December
15, 1986). See also United Air Linest Inc. v. CAB, 569 F.2d 640, 647
(D.C. Cir. 1977). Therefore, we conclude that unwarrantable failure
means aggravated conduct, constituting more than ordinary negligence, by
a mine operator in relation to a violation of the Act.
III.

Turning now to the specific violation at issue, we conclude that
substantial evidence does not support the judge's finding that the
violation resulted from Emery's unwarrantable failure to comply with
section 75.200.
The judge premised his finding that the lack of adequate roof
support was the result of an unwarrantable failure upon his conclusion
that the four roof bolts were without their bearing plates for at least
a week before their condition was detected and that Emery 1 s preshift and
onshift inspectors should have detected and corrected the condition.
8 FMSHRC at 936. Under the circumstances of this case, the fact that
Emery's preshift or onshift examiners did not detect the four roof bolts
with !tpopped0 plates is not an adequate basis for a finding of such
aggravated conduct constituting unwarrantable failure.
Emery was not indifferent to roof support in the entry between the
No. 65 and No. 66 crosscuts. Indeed, the record shows that Emery knew
for some time of the instability of the roof along the track haulage.
including the area between the cited crosscuts. and took exceptional
measures to provide adequate roof support. Emery placed cribs on one
side of the track and timbers on the other as close together as
possible. Emery placed steel mats on the roof, running crossways, and
pinned the mats with roof bolts. In addition, Emery installed chain
link mesh between the mats with another set of roof bolts. Emery
exceeded the requirements of its approved roof control plan by placing
some roof bolts as close together as one or two feet. The area between
the crosscuts was approximately 55 feet long. The area

2004

contained hundreds of roof bolts. Given these efforts to support the
roof adequately, we cannot conclude that simply because four of these
roof bolts had missing plates Emery exhibited aggravated conduct
exceeding ordinary negligence. Cf. Westmoreland Mining Co., 7 FMSHRC at
1342.
Accordingly, we hold that the violation of section 75.200 was not
caused by Emery's unwarrantable failure. We reverse the judge's
contrary finding and modify the section 104(d)(l) citation to a citation
issued pursuant to section 104(a). 30 U.S.C. § 814(a).

~~
FordB.~an

~<.AA__£,<t/~(~

Richard V. Backley, Commissioner

~It~
cyceA:riQyle, Comm~

L. Clair Nelson~ Commissioner

2005

Distribution
Timothy M. Biddle, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Henry Chajet, Esq.
American Mining Congress
1920 N Street, N.W.
Suite 300
Washington, D.C. 20036
Administrative Law Judge John Morris
Federal Mine Safety and Health Review Commission
333 West Colfax Avenue, Suite 400
Denver, Colorado 80204

2006

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

Deceraber 11, 1987

YOUGHIOGHENY & OHIO COAL COMPANY
Docket Nos. LAKE 86-21-R
LAKE 86-30-R

v.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.

v.

LAKE 86-56

YOUGHIOGHENY & OHIO
COAL COMPANY

BEFORE:

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

DECISION
BY THE COMMISSION:
In this proceeding ar1s1ng under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et~ (1982)("Mine Act 11 ) . the
issues are whether Commission Administrative Law Judge Gary Melick erred
in concluding that two violations of a mandatory safety standard were
the result of Youghiogheny and Ohio Coal Company 1 s ("Y&O") "unwarrantable failure 11 within the meaning of section 104(d)(l) of the Mine Act,
30 U.S.C. § 814(d)(l); whether the two violations were of a "significant
and substantial" nature; and whether the procedure followed by the judge
in assessing civil penalties for the violations was proper. l/ For the

l/

Section 104(d)(l) states:
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

2007

reasons that follow, we affirm the judge's unwarrantable failure
findings and one of the two significant and substantial findings, but
reverse as to the other significant and substantial finding and remand
that matter for reconsideration of the civil penalty.
I.

Y&0 1 s Nelms No. 2 Mine, an underground coal mine, is located in
Harrison County, Ohio. On Friday, October 25, 1985, Inspector Franklin
Homko of the Department of Labor's Mine Safety and Health Administration
("MSHA") issued to Y&O a citation for failure to comply with the mine's
approved roof control plan in violation of 30 C.F.R. § 75.200. ~/ The
citation charged non-compliance with the plan's requirements for
temporary roof supports in the face areas of the A entry, D entry, and
such nature as could significantly and substantially
contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds
such violation to be caused by an unwarrantable
failure of such operator to comply with such
mandatory·health or safety standards, he shall
include such finding in any citation given to the
operator under this [Act]. If, during the same
inspection or any subsequent inspection of such mine
within 90 days after the issuance of such citation,
an authorized representative of the Secretary finds
another violation of any mandatory health or safety
standard and finds such violation to be also caused
by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area
affected by such violation, except those persons
referred to in subsection (c) to be withdrawn from,
and to be prohibited from entering. such area until
an authorized representative of the Secretary
determines that such violation has been abated.
~/

30 C.F.R. 75.200, which restates section 302(a) of the Mine Act,
30 U.S.C. § 862(a), provides in part~
Each operator shall undertake to carry out on a
continuing basis a program to improve the roof
control system of each coal mine and the means and
measures to accomplish such system. The roof and
ribs of all active underground roadways, travelways,
and working places shall be supported or otherwise
controlled adequately to protect persons from falls
of the roof or ribs. A roof control plan and
revisions thereof suitable to the roof conditions
and mining system of each coal mine and approved by
the Secretary shall be adopted and set out in
printed form ..•. The plan shall show the type of
supported spacing approved by the Secretary.

2008

the D to E crosscut in the No. 3 section. This citation was not
contested. The following Monday, October 28, 1985, the inspector
returned to the mine and found that the conditions leading to the
October 25 citation had been corrected and that mining had advanced in
the A and D entries and in the D to E crosscut. However, the inspector
again found that temporary roof supports in these areas did not comply
with the roof control plan and therefore violated section 75.200. The
inspector further found that the violation resulted from Y&O's
unwarrantable failure to comply with the cited standard and that it
constituted a significant and substantial violation. Therefore, the
inspector issued a section 104(d)(l) order of withdrawal (Order No.
2823806).
Subsequently, on November 19, 1985, the inspector conducted an
inspection of the No. 5 section. The entries in the No. 5 section had
been advanced by a continuous mining machine ("continuous miner") and
cuts had been made in the sides of the entries at an obtuse angle ("fan
cuts 11 ) . The inspector observed that a fan cut on the right side of one
of the entries had cut into a corresponding fan cut on the left side of
the adjacent entry. The roof in the area created by this 11 hole through"
was unsupported. The inspector.found that in making the 11 hole through"
into an area where the roof was not supported, Y&O vi9lated its approved
roof control plan. Accordingly, the inspector cited Y&O for a violation
of section 75.200, made unwarrantable failure and significant and
substantial findings, and issued an order of withdrawal pursuant to
section 104(d)(l) (Order No. 2823831).
Following an evidentiary hearing, the judge found that the
violations occurred, were 11 unwarrantable 11 and "significant and
substantial 11 within the meaning of section 104(d)(l) of the Mine Act,
and assessed civil penalties of $800 and $500 for the violations.
8 FMSHRC 948 (June 1986)(ALJ). In determining that the temporary roof
support violation (Order No. 2823806) was the result of Y&O's unwarrantable failure to comply with section 75.200, the judge concluded that
nthe repetition of the same type of violation within such a short time
shows indifference or lack of due diligence or reasonable care. 11
8 FMSHRC at 954. The judge held that Y&O "should have known 11 of the
violation. Id. The judge found that the "hole through" violation
(Order No. 2823831) was attributable to unwarrantable failure for the
same reason. 8 FMSHRC at 954.
On review Y&O does not challenge the findings of violation, but
argues that the judge applied an incorrect legal standard in determining
that the violations resulted from, unwarrantable failure on its part.
Y&0 1 s arguments are virtually identical to those of the operator in
Emery Mining Co., 9 FMSHRC --• slip op. at 3, WEST 86-35-R (December
11, 1987), a case that we also decide today. Y&O argues, as did the
operator in Emery, that the judge's decision construes unwarrantable
failure as equivalent to ordinary negligence. It asserts that this
result is erroneous because it conflicts with the carefully balanced
enforcement scheme of the Act and distorts the proper focus of section
104(d). We agree.

2009

II.

In Emery. we concluded that unwarrantable failure means aggravated
conduct, constituting more than ordinary negligence. by a mine operator
in relation to a violation of the Act. Emery, slip op. at 1. 8. This
conclusion was based on the ordinary meaning of the term "unwarrantable
failure," the purpose of unwarrantable failure sanctions within the Mine
Act, and the relevant legislative history and judicial precedent. We
stated that whereas negligence is conduct that is "inadvertent,"
"thoughtless," or "inattentive," unwarrantable conduct is conduct that
is described as "not justifiable" or "inexcusable". Only by construing
unwarrantable failure by a mine operator as aggravated conduct
constituting more than ordinary negligence, do unwarrantable failure
sanctions assume their intended distinct place in the Act's enforcement
scheme. Emery. slip op. at 5.
We noted that section 104(d) is an integral part of the Mine Act's
enforcement scheme. a scheme that, as an incentive for operator
compliance, provides for "increasingly severe sanctions for increasingly
serious violations or operator behavior." Emery, slip op. at 4 (quoting
Cement Division, National Gypsum Company, 3 FMSHRC 822, 828 (April
1981)). We further ob~erved that in the Mine Act unwarrantable failure
is but one description of the type of operator conduct that evokes
particular sanctions. We concluded that the Mine Act's use of different
terms within the same statute demonstrates that Congress intended the
different terms to censure different types of operator conduct within a
graduated enforcement scheme. Emery slip op. at 5 We noted further the
insistence of the Secretary that equating ordinary negligence with
unwarrantable failure "grossly mischaracterize[s]" his position, and
that our construction of unwarrantable failure to mean aggravated
conduct constituting more than ordinary negligence is fully consistent
with the manner in which the Secretary enforces the Mine Act. Emery,
slip op. at 5, 6.
Finally, we found that construing unwarrantable failure consonant
with its ordinary meaning and based upon the purpose of the Act 1 s
unwarrantable sanctions was in substantial harmony with the legislative
history and judicial precedent bearing on the provision. Emery, slip
op. at 7-8. Consequently, we held that unwarrantable failure means
aggravated conduct, constituting more than ordinary negligence, by a
mine operator in relation to a violation of the Act.
III.

Applying this conclusion to the case at hand, we hold that
substantial evidence supports the judge 1 s findings that the violations
at issue were the result of Y&O's unwarrantable failure to comply with
section 75.200.
The judge's finding that the temporary roof support violation
(Order No. 2823806) was attributable to unwarrantable failure was
premised upon the fact that the inspector had cited a similar violation
of section 75.200 in the same area on October 25, only three days before
the issuance of Order No. 2823806. In addition, the judge noted that

2010

preshift examinations of the affected area were conducted but that the
violative conditions had not been reported. 8 FMSHRC at 950-51. Y&O
argues that the temporary roof supports of the last row in the A entry
were only 7, 10, and 2 inches in excess of the maximum distance to the
faces. Y&O also argues that it had directed experienced miners to
correct the previous violation but that for "unknown reasons they bolted
and repositioned temporary supports incorrectly". Y&O Br. 2. 11
The inspector testified that during 1985 there were 17 roof falls
at the mine and that two occurred on the No. 3 section. This history of
roof falls placed Y&O on notice that heightened scrutiny to assure
compliance with its roof control plan was vital. Given the prior
violation of section 75.200 in the same area of the mine only days
before the violation at issue occurred and the extent of the violative
condition, we find that Y&0 1 s conduct in relation to the violation was
more than ordinary negligence and that substantial evidence supports the
judge's conclusion that the violation resulted from Y&0 1 s unwarrantable
failure.
Regarding the "hole through" violation (Order No. 2823831), the
judge based his unwarrantable failure finding upon the fact that the
roof control plan, without exception, prohibits cutting through to areas
in which the roof is not supported adequately. Yet in this case Y&O's
section foreman, who was at the controls of the continuous miner,
nonetheless cut through into an area of unsupported roof. 8 FMSHRC at
954. Y&O argues that the "hole through" was not deliberate but
accidental. Y&O Br. 7. This assertion is contradicted by the record.
A member of Y&0 1 s safety department testified that the "hole through"
was done deliberately for ventilation purposes. Tr. 266, 285-87. In
any event, even if the "hole through 11 were accidental, the roof control
plan clearly prohibits cutting through into areas of unsupported roof
and the section foreman is responsible for compliance with the plan. In
discharging this important responsibility the section foreman is held to
a "demanding standard of care in safety matters." Wilmot Mining Co., 9
FMSHRC 684, 688 (April 1987) Here, the section foreman's conduct in
11
holing through" did not meet that standard and demonstrated a serious
lack of reasonable care, exceeding ordinary negligence and constituting
an unwarrantable failure to comply with section 75.200.
Regarding the significant and substantial nature of the temporary
roof support violation (Order No. 2823806), the judge was persuaded by
the testimony of the inspector that there existed a reasonable
likelihood that the hazard contributed to by the violation would result
in a partial or complete roof fall resulting in serious or fatal
1nJuries. 8 FMSHRC at 950. We have held that a violation is properly
designated significant and substantial "if, based on the particular

'1,/

The misplaced temporary supports in the A entry constituted only a
part of the violation. There were other violative conditions. In the D
entry there was one missing temporary support, and in the D to E
crosscut there was one missing temporary support and one temporary
support that was misplaced by 10 inches. On review Y&O does not address
these conditions.

2011

'
facts surrounding that violation, there exists
::' reasonable likelihood
that the hazard contributed to will result in an injury or illness of a
reasonably serious nature." National Gypsum, 3 FMSHRC at 825. In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), we explained:

In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary
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.
The third element of the Mathies formula "requires that the Secretary
establish a reasonable likelihooq 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, 1836 (August 1984) (emphasis deleted). We have
emphasized that, in accordance with the language of section 104(d)(l),
it is the contribution of a violation to the cause and effect of a
hazard that must be significant and substantial. Id.
Y&O admits that it was not in compliance with its roof control
plan. The evidence establishes that the discrete safety hazard
contributed to by the violation was the danger of a roof fall. The
issue is whether there was a reasonable likelihood that the hazard
contributed to would result in an event in whjch there is an injury.
The improperly supported roof was in the face areas of the No. 3 section
and additional mining was planned in those areas. Continued normal
mining operations would bring miners under the inadequately supported
roof. Lawrence Wehr, a member of Y&0 1 s safety staff, conceded that
miners in the cited area would be subject to danger, Tr. 135-37, 13841, Given the history of unstable roof at the Nelms No. 2 mine and the
fact that continued normal mining operations would endanger miners, an
injury causing roof fall was reasonably likely. Therefore, substantial
evidence supports the administrative law judge 1 s finding that this
violation was of a significant and substantial nature,
In concluding that the "hole throughu violation (Order No.
2823831) was of a significant and substantial nature, the judge relied
upon the testimony of the inspector who stated that the "hole through 11
exposed a large area of unsupported roof and presented a significant
roof fall hazard. 8 FMSHRC at 954. Although the Secretary established
that the 11 hole through" constituted a violation of section 75.200 and
that the violation contributed to the danger of a roof fall, we conclude
that substantial evidence does not support a finding that there was a
reasonable likelihood that a roof fall would result in an injury.
It is undisputed that the section foreman operating the continuous

2012

mining machine was under supported roof at all times when he made the
fan cuts and the "hole through." Tr. 230, 241, 246, 268, 273-74. It
also is undisputed that Y&O was not going to mine further the rooms
involved; these were the last cuts. Thus, had normal mining operations
continued, no miners would have entered the rooms in which the "hole
through11 occurred. In addition, Y&O posted danger signs at the entrance
to the rooms leading to the "hole through. 11 In light of these facts, we
hold that substantial evidence does not support the judge's conclusion
that the violation significantly and substantially contributed to a mine
safety hazard.
Finally, we turn to the penalty aspects of the case. Y&O contends
that in proposing civil penalties for the violations, the Secretary did
not adhere to his penalty regulations. (30 C.F.R. Part 100) and that a
remand to the Secretary is therefore necessary. Similar arguments by
Y&O were addressed in detail by the Commission in another decision
issued while the present case was pending on review. Youghiogheny &
Ohio Coal Co., 9 FMSHRC 673, 679-80 (April 1987). As explained in this
prior decision, the Commission possesses explicit statutory authority to
assess an appropriate penalty based on the record evidence developed
before it pertaining to the sta'tutory penalty criteria of section
llO(i). 30 U.S.C. § 820(i). The Commission's penalty assessments are
subject to judicial review. Because the record developed in an
adversarial proceeding concerning the statutory penalty criteria will
invariably be more complete and fairly balanced than the information
normally available to the Secretary when he unilaterally proposes a
civil penalty, no compelling legal or practical purpose would be served
by requiring the Secretary to repropose a penalty after a hearing in a
civil penalty proceeding has been concluded. Here, a full evidentiary
hearing has been held and the judge has assessed civil penalties based
on the evidence. Therefore, as in the prior case, the proper course is
to review the judge 1 s penalty assessment to determine whether it is
supported by the record.
In assessing a civil penalty of $500 for the "hole through''
violation (Order No. 2823831) the judge considered his finding that the
violation was significant and substantial but did not expressly refer to
the gravity of the violation. 8 FMSHRC at 954. Although the penalty
criterion of "gravity" (30 U.S.C. § 820(i)) and the significant and
substantial nature of a violation (30 U.S.C. §814(d)) are not identical,
they are based frequently upon the same or similar factual
considerations. Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n. 11
(September 1987). Since we have determined that the "hole through"
violation was not of a significant and substantial nature, we remand to
the judge to examine the gravity of the violation in light of this
determination and to assess an appropriate civil penalty.

2013

v.
Accordingly, we affirm the judge's unwarrantable failure findings
for both violations and the judge's significant and substantial finding
with respect to the temporary roof support violation (Order No. ,
2823806). We vacate the judge's significant and substantial finding and
civil penalty assessment for the "hole through" violation (Order No.
2823831) and remand that matter for reconsideration of the civil
penalty.

Distribution

Robert C. Kota, Esq.
Youghiogheny & Ohio Coal Company
P,O. Box 1000
St" Clairsville 9 Ohio 43950
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington? VA 22203
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Connnission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

2014

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

December 21, 1987

AUSTIN POWER, INC.
Docket Nos. CENT 86-59-R
CENT 86-60-R
CENT 86-61-R

v.

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

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

Docket No. CENT 86-40

AUSTIN POWER, INC.

BEFORE:

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

DECISION
BY~

Backley, Lastowka and Nelson, Commissioners

In this consolidated contest and civil penalty proceeding arising
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (1982), the issues presented include whether Corrnnission Administrative
Law Judge George A. Koutras erred in holding that Austin Power, Inc.
("Austin Power 11 ) , violated two surface coal mine safety standards: 30
C.F.R. § 77.1607(g) requiring equipment operators to be certain that all
persons are clear before starting or moving equipment l/ and 30-c.F.R.
§ 77.1710(g) mandating that employees be required to wear safety belts and

ll

30 C~F.R. § 77.1607(g) provides:
Equipment operators shall be certain, by signal or
other means, that all persons are clear before starting
or moving equipment.

2015

lines where there is a danger of falling. II 8 FMSHRC 1671 (November
1986)(ALJ). The Commission granted Austin Power's petition for
discretionary review. For the reasons that follow, we reverse the judge's
conclusion that Austin Power violated section 77.1607(g) and affirm his
finding that Austin Power violated section 77.1710(g).
This case arises out of a fatal accident that occurred on August 19,
1985, at the Big Brown Strip Mine located in Freestone County, Texas. The
mine is a surface coal mine owned and operated by Texas Utilities Company.
Austin Power is an independent contractor and was engaged in erecting a
cross-pit spreader at the mine. The spreader is an extremely large piece
of tracked equipment that removes top soil from the area to be mined. Two
separate conveyor belt booms extend horizontally from the spreader at
different heights. The higher 70-meter conveyor belt boom and the lower
20-meter conveyor belt boom are designed to receive and transport topsoil
that has been removed from the ground by the spreader's digging apparatus.
Opposite these conveyor belt booms, another conveyor belt boom for
discharging the topsoil extends horizontally from the spreader.
On the day of the events at issue, the electrical power to the
spreader had not been connected and the booms were unable to be moved on
their own. The 20-meter boom haclbeen released from its shorings underneath the 70-meter boom'and had been moved by a 518 Link-Belt crane
laterally from west to east, so that five counterweights, each approximately 24,000 pounds in weight, could be installed. The counterweights
balance th~ boom when in operation. In order to install the counterweights, two separate cranes were used. The 518 Link-Belt crane was
connected to the receiving end of the 20-meter boom. The other crane,
which was used to load the counterweights at the boom 1 s discharge end, was
near the boom's fulcrum.

After the loading of the counterweights was completed, the 20-meter
boom was to be repositioned under the 70-meter boom. It was determined
that the 518 Link-Belt crane's boom could not pass under the 70-meter boom
and, as a result, could not complete the procedure of repositioning the 20meter boom underneath the 70-meter boom. Therefore, a cherry picker on the
other side of the 70-meter boom was to swing the 20-meter boom from the
point beyond which the crane could no longer proceed to the proper location
under the 70-meter boom. Three employees of Austin Power were assigned to
attach a wire-rope choker to the end of the 20-meter boom for the purpose
of hooking it to the cherry picker. The three employees walked to the end
of the 20-meter boom 1 s covered walkway and stood on the walkway while the
boom was being moved by the crane. The walkway was 36 feet above the
ground and was equipped with guardrails and floor plates of metal grating.
30 C.F.R. § 77.1710 provides in part:
Each employee working in a surf ace coal mine
shall be required to wear protective clothing and
devices as indicated below: ••.
(g) Safety belts and lines where there is danger of
falling •.•.

2016

The three employees were wearing safety belts, but they did ;-10t "tie off, 11
., attach their lines to the boom.
One of Austin Power's employees, Steve Smith, was in the process of
attaching the choker to the walkway frame near the end of the 20-meter boom
while the other two employees were standing behind him. A rigging foreman
for Austin Power, James Patterson, was on the ground, 35-40 feet from the
end of the boom, observing the employees. While Smith was attaching the
choker, an eyelet connecting a hydraulic device at the opposite end of the
20-meter boom broke. The eyelet failure caused the end of the boom to jerk
suddenly upwards in a 11 whiplash 11 motion. The three employees were
propelled off the boom, and the metal floor grating separated from the
walkway and fell to the ground. Smith fell to his death. The other two
employees grabbed onto part of the boom as they fell and were not injured.
The following day, an inspector of the Department of Labor's Mine
Safety and Health Administration ( 11 MSHA 11 ) , Donald Summers, arrived at the
mine to investigate the accident. As a result, Summers issued,.citations
alleging violations of sections 77.1607(g) and 77.1710(g). Summers charged
that because Smith and the other two employees were on the 20-meter boom
while it was being moved by the crane, the crane operator uwas not certain
that all persons were in the clear before he put his machine into
operation 11 and, consequently, that Austin Power had violated section
77.1607(g). Govt. Ex. P-1. Summers also charged that under 77.1710(g) the
employees on the boom were required to have tied off their safety belts
since they were exposed to a danger of falling. In addition, Summers found
that both violations were 11 significant and substantial" and that Austin
Power was negligent. The Secretary proposed civil penalty assessments in
the amount of $3,000 for each violation.
At the hearing before Judge Koutras, the Secretary contended that as
applied to the facts of this case, section 77.1607(g) required the crane
operator before starting or moving the crane to be certain that persons
were not only clear of the crane, but also not on the crane 1 s load, here
the 20-meter boom. As to section 77.1710(g), the Secretary and the MSHA
inspector conceded at the hearing that the two other employees present on
the boom, but not involved in the actual installation of the choker, were
not required to wear safety belts and to tie off. However, the Secretary
asserted that a reasonable employer would have required Smith to tie off
when assigning him to a task that required him to place his body between
guardrails on an elevated walkway thereby creating a danger of falling.
Austin Power responded that section 77.1607(g) did not apply to the circumstances that existed at the time of the accident. Austin Power argued that
the employees were not riding the "load 11 of the crane and, in any event,
were in the clear because the very design and purpose of the 20-meter boom
was to permit employee access. Austin Power further argued that section
77.1710(g) was not applicable, since working on the 20-meter boom did not
involve a hazard of falling. Also, it argued that its employees were
required to wear safety belts and lines where there was a danger of falling
as evidenced by its safety rules.
The judge rejected Austin Power's arguments. He determined that
section 77.1607(g) applied to the three employees 11 while on the moving boom
which was being lifted and maneuvered about during the course of the

2017

workshift in question. 11 8 FMSHRC at l716. He accordingly found that the
crane operator had a duty to be certain that the employees were clear of
the boom before the crane was ready to move the boom, that this duty was
not met, and that section 77.1607(g) was therefore violated. Id. In
concluding that Austin Power also violated 30 C.F.R. § 77.1710fg), the
judge found that Smith's position on the walkway while in the process of
installing the choker placed him in danger of falling. 8 FMSHRC at 171922. The judge found that 11 it should have been clear to a reasonably
prudent person that a danger of falling existed and that Smith should have
tied off." 8 FMSHRC at 1722. The judge rejected Austin Power's argument
that its work rules regarding use of safety belts where a danger of falling
is present were adequate to defeat the violation in this case. He found
that an employee of Austin Power could reasonably have concluded that he
was not required to tie off while performing work in an elevated walkway
protected by handrails, 36 feet off the ground. 8 FMSHRC at 1724-25.
Finally, the judge concluded that the violations were "significant
and substantial," and were the result of Austin Power's negligence. The
judge assessed civil penalties of $2,000 and $2,500, respectively, for the
violations. Austin Power challenges the judge's findings and conclusions
regarding both violations.
We hold that section 77.1607(g) requires the operator of equipment
subject to the standard to be certain that all persons within the potential
zone of danger are clear from reasonably foreseeable hazards resulting from
the starting or moving of the equipment. We agree with the judge that the
standard applied to the crane operator, but hold that the Secretary did not
establish that the crane operator failed to make certain that all persons,
including the three employees on the boom 1 s walkway, were clear before he
started or moved the equipment. Accordingly, we find no violation of the
standard.
As contrasted with more detailed regulations, the requirement of
section 77.1607(g) that "[e]quipment operators be certain ... that all
persons are clear before starting or moving equipment" is the kind of
regulation made "simple and brief in order to be broadly adaptable to
myriad circumstances." Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November
1981). Generally, the adequacy of an equipment operator 1 s efforts to
comply with section 77.1607(g) is evaluated in each case with reference to
an objective test of what actions would have been taken by a reasonably
prudent person familiar with the mining industry, relevant facts, and the
protective purpose of the standard. See,~·· United States Steel Corp.,
6 FMSHRC 1908, 1910 (August 1984); United States Steel Corp., 5 FMSHRC 3, 5
(January 1983); Alabama By-Products, 4 FMSHRC 2128, 2129 (December 1982).
In this instance, such a determination requires consideration of what a
reasonably prudent operator of the Link-Belt crane would have done under
the circumstances to make certain that all persons were clear before he
started or moved the crane.
Austin Power argues that the obvious purpose of the standard is to
require an equipment operator to make certain that he does not hit
bystanders with his equipment. According to Austin Power, the crane
operator received proper signals and made certain that all bystanders were
clear before starting or moving the crane and that the three employees were

2018

clear because the crane could not come into contact with them.
A plain reading of section 77.1607(g) reveals that it does not limit
the protection it affords to any particular class of persons, such as
bystanders. It refers to 11 all persons 11 being clear. In addition, the
language does not suggest that the hazard with which the standard is
concerned is limited to situations in which people might be run over or hit
by the equipment itself. Rather, the standard protects all persons within
the potential zone of danger from all reasonably foreseeable hazards
resulting from the starting or moving of the equipment. Under the
standard, therefore, it was the duty of the crane operator to make certain
that all persons within the potential zone of danger were clear of
reasonably foreseeable hazards before he started or moved his equipment.
In this case, the 518 Link-Belt crane was being used to reposition a
boom on the cross-pit spreader. As an integral part of the repositioning
operation, the three Austin Power employees were assigned to go to the
walkway of the boom. The walkway was intended by its very design to permit
the presence and passage of workers during the operation of the spreader.
Although the crane was to apply force to the boom in order to effectuate a
lateral movement, the three employees were clear of any reasonably
foreseeable hazard posed by that movement. They were on a covered walkway
that was protected by a fall protection system consisting of a top rail,
mid-rail, and toe-board. Further, movement of the boom and its attached
walkway was anticipated in the design and function of the spreader. The
crane operator knew that the employees were on the walkway to transfer the
20-meter boom from his crane to the cherry picker on the opposite side and
the employees knew that the boom was to be moved. The crane operator
testified that he moved the rig upon receiving a signal from ground
personnel. Tr. 154. The crane operator also testified that throughout the
day of the accident he received signals and instructions from supervisory
personnel. Tr. 133. Before the crane actually began to reposition the
boom, the project general superintendent was actively involved in issuing
instructions to the employees on the boom and to ground personnel. Tr.
249. James Patterson, the rigging foreman, was on the ground underneath
the boom supervising the three employees and flagging the crane operator.
Tr. 203. Thus, the crane operator was aware of the presence of the three
employees on the protected walkway, was receiving signals, and made a
determination that all persons were clear of any reasonably foreseeable
danger resulting from the starting or moving of his equipment. Tr. 144.
The record contains no proof that any of the employees on the walkway was
in an unprotected position at the time the crane operator began to
reposition the boom. Smith's attempt to attach the choker for hooking onto
the cherry picker, placing him in a danger of falling as discussed below,
appears to have occurred after the Link-Belt crane had begun to move the
boom. Therefore, we find that the crane operator acted as a reasonably
prudent person in similar circumstances would have and, therefore, met the
duty imposed by the standard. Consequently, we conclude that there i~
insufficient evidence to support the judge's finding of violation of
section 77.1607(g).
In concluding that Austin Power violated section 77.1710(g), which
provides that employees nshall be required to wear ••. safety belts and'
lines where there is a danger of falling, 11 the judge determined that Smith

2019

was in danger of falling while attempting to attach the choker and he found
the substance and enforcement of Austin Power's safety rules regarding the
wearing of safety belts and lines to be lacking. 8 FMSHRC at 1722-25. In
Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983), the Commission,
construing the corollary safety belt standard applicable to underground
metal and nonmetal mines, concluded tha·t a danger of falling exists when
"an informed reasonably prudent person would recognize a danger of falling
warranting the wearing of safety belts and lines." Further, in Southwestern Illinois Coal Corp., 5 FMSHRC 1672, 1675 (October 1983), the
Commission concluded that section 77.1710(g) mandates that an operator
establish a program requiring the wearing of safety belts and lines where
dangers of falling exist and enforce the requirement diligently.
The administrative law judge concluded that in the circumstances of
the present case a reasonably prudent person would have recognized that a
danger of falling existed and that Smith should have tied off. Our task on
review is to determine whether substantial evidence supports the judge's
finding. 30 U.S.C. § 823(d)(2)(A)(ii)(I). Substantial evidence is 11 such
evidence as a reasonable mind might accept as adequate to support [the
judge 1 s] conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). As recited by the judge, the evidence establishes that while
attempting to attach tl)e choker~ Smith was on his knees near the end of the
boom, reaching under· the middle railing of the guardrail with at least his
head outside the railing. 8 FMSHRC at 1722. His hands were occupied with
swinging the choker cable under the walkway from one side and catching it
on the other. This was occurring in a location 36 feet above ground.
Given the circumstances and the work Smith was performing, we conclude that
a reasonably prudent person would have recognized a danger of falling and
would have tied off. Consequently, we hold that substantial evidence
supports the finding of a violation of section 77.1710(g).
The judge also addressed Austin Power's safety rules concerning the
use of safety belts and lines. The judge held that the safety rules were
inadequate because under those rules an employee working 36 feet above
ground on an elevated walkway protected by handrails could conclude that he
was not required to tie off, In addition, the judge found the safety rules
to be inadequate because under circumstances in which the employee reaches
through the railings, the decision to tie off is left to the discretion of
the employee. 8 FMSHRC at 1724-25. We agree with the Secretary that
consideration of Austin Power's rules was unnecessary to a disposition of
the case, In Southwestern, in response to the Secretary 1 s argument that an
operator must guarantee the wearing of safety belts, the Commission stated
that "when an operator requires its employees to wear belts when needed and
enforces that requirement, it has discharged its obligation under the
regulation." 5 FMSHRC at 1675. In the instant case, the controlling issue
is whether safety belts and lines were "needed, 11 that is, whether there was
a danger of falling, not whether Austin Power 1 s program requiring the use
of safety belts and lines was adequate. Austin Power did not regard ,
Smith 1 s failure to tie off under the circumstances he faced as a violation
of its rules and policies because, in its view, no danger of falling was
presented. The rigging foreman testified that Smith was not required to
tie off, Tr. 197, and this argument has been vigorously advanced on review.
The issue of the adequacy of an operator's program and its enforcement is
only relevant when an operator contends that an employee violated the

2020

requirements of its program due to the employee's disobedience or
negligence. Southwestern, 5 FMSHRC at 1675 (quoting North American Coal
Corp., 3 IBMA 93, 107 (April 1974)). Because Austin Power does not contend
that Smitp violated its safety rules or that he was disobedient or negligent, but insists that Smith was not required to be tied off, Southwestern
Illinois is inapposite. We conclude that substantial evidence supports the
judge's finding that a danger of falling was present and we affirm his
finding of a violation of section 77.1710(g).
Finally, we affirm the judge's finding that the violation of section

17.l710(g) was "significant and substantial" and was the result of Austin
Powe:r 1 s

negligence. A violation is properly designated significant and
substantial "if, based on the particular facts surrounding the violation,
there exists a rea.sonable 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); Youghiogheny
& Ohio Coal Co., 9 FMSHRC 673, 677 (April 1987);
also, Consolidation
C-0al Co. v. FMSHRC, 824 F.2d 1071, 1078-79 (D.C. Cir. 1987). In Mathies
Coal Co., supra, 6 FMSHRC at 3-4 (January 1984), we explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National GyEsillil, the S~cretary 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.
The third element requires the Secretary to establish a reasonable likelihood that the hazard contributed to will result in an injury producing
event. Furthermore, it is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial, U.S. Steel
Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984), and the violation
itself "must be evaluated in terms of continued normal mining operations. 11
Youghiogheny & Ohio, 9 FMSHRC at 677 78; U.S. Steel Mining Co., Inc .•
6 FMSHRC 1575, 1574 (July 1984).
The discrete safety hazard contributed to by the violation of section
77.1710(g) was the danger of falling. Based on the evidence recited above
describing Smith's position on his knees with at least his head beyond the
guardrails while attempting to attach the choker while 36 feet above
ground, we conclude that even if the work had proceeded normally, a fall
under the circumstances was reasonably likely. Accordingly, we affirm the
judge's finding that the violation was of a significant and substantial
nature.
Regarding the judge's finding of negligence in connection with this
violation, the rigging foreman was directly supervising Smith's work from
the ground and was able to observe Smith's body position and efforts to
attach the choker. Tr. 195-97, 203. We agree with the judge that with the
exercise of reasonable diligence, the foreman should have recognized the

2021

falling hazard to which Smith was exposed and should have instructed Smith
to tie off. 8 FMSHRC 1730. The negligence of the foreman was properly
imputed to the operator in determining the amount of civil penalty. Wilmot
Mining Co., 9 FMSHRC 684, 687 (April 1987); Southern Ohio Coal Co.,
4 FMSHRC 1459, 1463-64 (August 1982).
Accordingly, we reverse the judge's finding that Austin Power
violated section 77.1607(g) and vacate the civil penalty assessed by the
judge for the violation. In addition, we affirm the violation of section
77.1710(g) and the civil penalty assessed.

//

~-~~£-Cz~~-kL1 ~

Richard V. Backley, Commissioner

A

f/i_

!

"''~
r!). ~y/[_~
/James A. Lastowka, Commissioner

-7~

Nelson, Commissioner

2022

~

Chairman Ford and Commissioner Doyle, concurring in part and dissenting
in part:

We join in the majority's decision to the extent that it reverses
the administrative law judge's finding that Austin Power, Incorporated
1,riolated section 77. 1607(g) and vacates the civil penalty assessed by
the judge for that violation. We would, however, reverse the judge on
a more basic ground, viz. that the standard does not apply to the facts
presented in this case. We also respectfully dissent from the decision
to the extent tnat it affinns the judge's finding of a violation of
sect.ion 77 ~ l 710(g) and the civil penalty assessed for that alleged
•;i

ioL.a t ion.

30 C.F.R. §77.1607(g) provides:
Equipment operators shall be certain, by
signal or other means, that all persons
are clear before starting or moving
equipment.
The Secretary asserts that this standard prohibits any employees
from being on the boom of the spreader at any time while it is being
moved. Tr. 46, 69, 257. We believe that the plain meaning conveyed
to a person of ordinary intelligence by the standard as drafted is
far closer to that articulated by the crane operator at the hearing:
"IIJt i.s your responsibility not to jump into a rig, crank it up and run
over the :mechanic that is changing your oil." Tr. 154. The hazard
addressed in the crane operator's statement is that posed by self-propelled mobile equipment that is capable of injuring pedestrians or
operators of nearby equipment who are not adequately forewarned of a
start up or movement. Thus, the 518 Link-Belt crane operator was
responsible for seeing that the ground around the crane and the path
it was to take were clear before starting or moving the crane. TUs
testiii:raony indicates that he took those actions.
Section 77.1607(g) has been placed in Subpart Q - Loading and Haulage
and contains as its own heading: "Loading and haulage equipment; operation. n The record contains no evidence of the history or purpose of the
section nor does i~ contain evidence of prior enforcement actions by
the Secretary that would have put the operator on notice that this .
regulation prohibited anyone from being on the cross-pit spreader's boom
at any time while it was being moved by the Link-Belt crane. On the
contrary, another section within Subpart Q, subsection 77.160l(c),
specifically deals with "Transportation of persons; restrictions" and
specifically limits and prohibits riding or being transported outside the
cabs and beds of mobile equipment, with no mention being made of the type

2023

of equipment at issue in this case. Further, section 77.1607(f) requires
persons to notify th~ equipment operator before they get on or off
loading and haulage equipment.
All of this leads us to the conclusion that, if it were the
Secretary's intention to enjoin persons from riding on this spreader
boom at any time that it was in motion, that intention was not adequately
expressed in section 77.1607(g). See Phelps Dodge Corporation v. FMSHRC,
United Steelworkers of America, AFL-CIO, Local Union 616, Intervenor.
681 F.2d 1189 (9th Cir. 1982). "Laws [must] give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that
he may act accordingly." Alabama By-Products, 4 FMSHRC 2128, 2129
(December 1982) (quoting Grayned v. City of Rockford, 408 U.S. 104,
108-109 (1972)).
The majority, in finding coverage by the standard, characterizes
it as one that is made "simple and brief in order to be broadly adaptable
to myriad circumstances." Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November
1981). However, such broad standards must afford reasonable notice of
what is required or proscribed. United States Steel Corp., 5 FMSHRC 3,
4 (January 1983). We do not disagree that the adequacy of the operator's
efforts to comply with those standards that are designed to cover myriad
circumstances is to be evaluated in each such case with reference to those
actions that would have been taken by a reasonably prudent person familiar
with the mining industry, the relevant facts, and the protective purposes
of the standard. However, in this case, the Secretary's position permits
absolutely no latitude or discretion but, rather, asserts a very specific
requirement: that no one be permitted on the boom of the cross-pit spreader
while it is moving. If the Secretary's requirement is so specific, he could
have, and should have, said so. See Diamond Roofing Co., Inc., 528 F.2d 645
(5th Cir. 1976). As the Commission has held previously, broad standards
"cannot be applied in a manner that fails to inform a reasonably prudent
person that the condition or conduct at issue [is} prohibited by the
standard. 11 Mathies Coal Co., 5 FMSHRC 300, 303 (March 1983). Safety
standards, if they are to ensure safety to miners and prevent accidents,
must put the operator on notice beforehand of what is required of him.
We also dissent from the majority 1 s affirmance of a violation by
Austin Power of 30 CFR §77.1710(g) because the record fails to provide
substantial evidence to support the judge's finding that a danger of
falling existed.
30 CFR §77.1710(g) provides, in relevant part, as follows:
Each employee working in a surf ace
coal mine .•. shall be required to
wear protective clothing and devices
as indicated below: •..
(g) Safety belts and lines where there
is danger of fallipg •••

2024

Immediately prior to the accident, three employees were situated
along a covered walkway that was attached to the 20-meter boom of the
cross-pit spreader. The walkway was equipped with a guardrail that
consisted of a top rail approximately 42 inches above the walkway
surface, a mid rail and a toe board. The fatal accident occurred when
an eyelet on the spreader broke and caused the 20-meter boom to jerk upwards, propelling the three employees upward from the walkway into the air.
One of the employees, Steve Smith, fell to his death while the other two
managed to regain a hold onto the structure. After inititally charging
that all three employees were in danger of falling, the Secretary conceded at the hearing that only Steve Smith was in danger of falling prior
to the accident and, therefore, required to wear a safety belt and be tied
off. The basis for the Secretary's allegation of violation was that
Smith's work activity of installing a choker placed him in danger of
falling. Therefore, analysis of whether Smith's work activity placed
him in danger of falling must be made without consideration of the fact
that Smith was propelled from the walkway as a result of the eyelet
failure, an event totally unrelated to his installation of the choker
and, by all accounts, totally unforeseeable.
Four witnesses testified on the issue of whether Smith's installation
of the choker placed hi:gl in danger of falling. MSHA inspector Donald
Summers, who participated in the investigation of the accident, testified
that there was a need for Smith to have a safety belt and be tied off if
he was performing work "outside" the handrail. Tr. 105. However,
Summers, who was not an eyewitness to the event and began the investigation two days after it occurred, did not testify as to whether, by
being "outside" the handrail, he meant one's entire body, a portion of
the torso, or any body part extending beyond the handrail. The uncontradicted evidence was that Smith, who weighed 235 pounds, was on his
knees installing the choker with only his hands and a portion of his
head outside the railing, between the mid rail and the toe board. Tr.
163, 170, 171. Inspector Summers did not testify that this constituted
being outside the railing, nor did he offer his opinion as to how Smith's
actions would have put him in danger of falling. As mentioned, the inspector did not believe it was necessary to be tied off at all times when
one was on the walkway, Indeed, Inspector Summers had traveled the very
walkway in issue without being tied off with a safety line. Tr. 103-105.
The second witness was Russell Crowell, the operator of the 518 LinkBel t crane that was being used to move the spreader's 20-meter boom.
Crowell was unable to observe Smith's position on the walkway at the
time of the accident, but he testified that he and Smith had worked
extensively on the spreader and he knew that Smith's practice was to
tie off whenever there was a risk of falling. Tr. 143.
Jeffrey Arent, the third witness, was an eyewitness to the event,
and was located on the same walkway as Smith when the eyelet failed. He
testified that Smith was kneeling on the walkway at the time of the
accident with his head "just barely out" and his hands "out there"
(i.e. outside the guardrail) Tr. 163. Mr. Arent believed there was no
need, to tie off under those circumstances. Tr. 173.

2025

The last witness, James Patterson, rigging foreman at the site, was
also an eyewitness. At the time of the accident he was on the ground
some 35 to 40 feet from the end of the 20-meter boom. He observed Smith
kneeling on the walkway, putting the choker around the framework. In
his opinion Smith was not in danger at: falling while performing th'at
work. Tr. 197.
In order to establish substantial evidence that a danger of falling
existed, the record must do more than create a suspicion of the existence
of that fact. Rivas v. Weinberger, 475 F.2d 255, 257 (5th Cir. 1973).
Anything in the record that "fairly detracts" from the weight of the
evidence must also be considered and a finding should not be sustained
"merely on the basis of evidence which in and of itself justified it,
without taking into account contradictory evidence or evidence from which
conflicting inferences could be drawn ••• " Universal Camera Corp. v. NLRB,
340 u.s. 474, 487 (1951).
-In this case, the testimony of the two eyewitnesses to the event,
Arent and Patterson, that they did not believe that Smith's extension
of his hands and part of his head beyond the guardrail placed him in any
danger of falling, when coupl~d with the testimony of the crane operator
that Smith was a careful individual who used his safety belt and line
"When exposed to a falling hazard, results in a record that provides
formidable evidence that Smith was not exposed to such a hazard when he
was installing the choker. This evidence must be considered along with
the testimony of inspector Summers who was not at the scene at the time
of accident, only 'understood' what Smith's position was while installing
the choker, did not elaborate as to what he meant by being 'outside' the
handrails and did not explain how Smith's actions would put him in danger
of falling. Considering the entire record, we believe it fails to provide
substantial evidence that a danger of falling existed prior to the totally
unrelated, unforeseeable event of the eyelet failure.
There being no evidence to support the finding, the judge's determination that nMr. Smith's position on the walkway while in the process of
installing the choker in question placed him in danger of falling" is
without foundation. 8 FMSHRC 1671, 1722 (November 1986). Similarly,
the judge's statement that the railing afforded Smith "little protection
and that he [Smith] could have lost his balance while attempting to swing
the choker under the walkway and fallen to the ground" are conclusions
unsupported by the record. Id. at 1722. Accordingly, we would vacate
the finding of a violation of 30 CFR §77.1710(g).

:

//_,,
/

/

/" /i'/

l,1 .•,

I

,/. .
'

; /Cc;-r:__..:.__.- c/. " ·~Le<-.-!" I '--ZJ6ice A. Doyle, Commissid'ner

2026

Distribution
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Jennifer A. Youpa, Esq,
Steven R. McCown, Esq.
Jenkens & Giichrist
3200 Allied Bank Tower
Dallas, Texas 75202
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

2027

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

December 23, 1987

Docket Nos. WEST 87-130-R through
WEST 87-163-R
WEST 87-243-R through
WEST 87-249-R

UTAH POWER & LIGHT CO.,
MINING DIVISION

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
UNITED MINE WORKERS OF AMERICA
BEFORE:

Ford, Chairman; _Backley, 'Doyle, Lastowka, and Nelson, Commissioners
ORDER

BY THE COMMISSION :

Utah Power & Light Co., Mining Division ("UP&L") has petitioned the
Commission for interlocutory review of an order issued in these proceedings
by Commission Administrative Law Judge John J. Morris denying UP&L's motion
for summary decision. Respondent Secretary of Labor and Intervenor United
Mine Workers of America ("UMWA") oppose the petition. Upon consideration
of the petition and oppositions, the petition is denied for the reasons
set forth below.
On March 24? 1987, as a result of an investigation by the Department
of Labor;s Mine Safety and Health Administration ("MSHA") of a fire and
loss of life at the Wilberg Mine in December 1984, the Secretary issued
numerous citations and orders to "Emery Mining Corp., and its successorin-interest Utah Power & Light Co., ¥.ining Division." At the time of the
fire, the Wilberg Mine was owned by UP&L but, pursuant to contract, was
being operated for UP&L by Emery Mining Corporation ("Emery 11 ) . On
April 16, 1986, UP&L purchased Emeryvs assets and assumed direct operation
of the Wilberg Mine.

UP&L contested the citations and orders issued to it by the Se~retary
asserting that it was "not liable for the violation[s] as Emery's successorin-interest." The Secretary filed general answers to UP&L's notices of
contest, denying all allegations contained in the contests.

2028

On May 22, 1987, during the course of pre-hearing proceedings, UP&L
filed a motion for summary decision pursuant to Commission Procedural Rule 64,
29 C.F.R. § 2700.64, arguing that, as a matter of law, it was not liable as a
successor-in-interest for the violations alleged in the citations and orders.
The Secretary filed a response and cross-motion for summary decision, asserting
that "UP&L can be held liable as either 'successor-in-interest' to [Emery] or
independently as a mine operator for violations cited by [MSHA] .••• " Sec.
Response and Cross-Motion for Summary Judgment at 3.
In an unpublished order issued on August 5, 1987, the judge denied both
motions. The only explanation given in the order for his denial was that "a
genuine issue of fact concerns whether UP&L was in control of the Wilberg
Mine at the time of the alleged violations." Order at 3 (August 4, 1987).
On September 18, 1987, UP&L moved the judge for reconsideration, contending
that the question of whether UP&L was in control of the Wilberg Mine,
although possibly relevant to whether UP&L may be held liable as an operator,
was irrelevant to whether UP&L was liable as Emery's successor-in-interest
as charged in the citations and orders -- the sole issue raised in UP&L's
motion for summary decision. Judge Morris denied the motion for reconsideration without explanation.
Commission Procedu:ral Rule 74, 29 C.F.R. § 2700.74, sets forth the
standard of review governing consideration of such petitions: The Commission,
in its discretion, may grant interlocutory review nupon a showing that the
[challenged] ruling involves a controlling question of law and that
immediate review of the ruling may materially advance the final disposition
of the proceeding." Because the Secretary has failed to articulate clearly
the theory underlying his charges against UP&L, and because the judge's
order does not state clearly the basis for his rulings on UP&L's motions,
we are unable to determine whether the issue of UP&L's liability as a
successor-in-interest involves a controlling question of law and whether
interlocutory review will advance the final disposition of this case.
The record reveals that the contested citations and orders were issued
to UP&L as Emery 7 s "successor-in-interest.n The record also reveals that
the thrust of UP&L 1 s defense to date is that it is not liable as a successor.
In response to UP&L 7 s motion for summary decision, the Secretary stated that
UP&L also may be independently liable as an "owner-operator11 (Sec. Response
at 7), but the major focus of the Secretary's argument was that UP&L is liable
as a successor-in-interest. Sec. Response 8-21. Additionally, in response
to UP&L 1 s motion for reconsideration the Secretary stated as follows:

2029

Although the Secretary determined that Emery was
properly cited as the operator and UP&L was properly
cited as a successor-in-interest, we fully agree
that UP&L exercised operator-type health and safety
responsibilities under the Mine Act. Therefore, if
it is determined by the judge that, based upon th-efacts, UP&L was a co-operator of the Wilberg Mine at
the time of the cited violation, then the Secretary ,
would accept that determination and would agree that
such a determination would be a proper exercise of his
authority •••• The facts at the time of issuance supported, in the Secretary's view, citing UP&L, at least,
as a successor-in-interest. However, after review,
further evidence might support charging UP&L as a cooperator as well as a successor-in-interest.
Sec. Response at 3-4 (emphasis added). The Secretary further states in his
opposition to UP&L's petition for interlocutory review that "[t]he fact that
UP&L was cited as a successor does not mean that the judge may not hold it
liable as an operator if the evidence supports such a finding." Sec.
Opposition To Motion for Interlocutory Review 3 (emphasis added). The
Secretary also argues that any defect in his pleadings may be corrected
subsequently through Fed. -R. Civ. P. 15 (b)(amendments to conform to the
evidence).
We regard the existing state of the Secretary's pleadings as unfocused
and confused, providing neither UP&L nor the Commission with a clear statement
of his asserted basis for imposing liability upon UP&L. The Secretary as
prosecutor is responsible for charging violations under the Mine Act, not the
Commission. As UP&L notes, the Secretary's theory for imposing liability will
determine the nature of UP&L's defense to the allegations contained in the
citations and orders. UP&L Petition for Interlocutory Review 4-5. To avoid
any possibility of prejudice to UP&L, a clear articulation of the liability
theory or theories that the Secretary is alleging and intends to pursue in
this important litigation is required.

2030

These proceedings are in a preliminary, prehearing stage. The Secretary
must clarify the theory of liability upon which he intends to proceed. UP&L
may, of course, renew or interpose whatever defenses or motions it deems
appropriate. Finally, it is incumbent on the judge to fully explain the basis
of his rulings on any such further motions.
Accordingly, the petition for interlocutory review is denied.

f7~d.
~Le__
yce ~e, CommiSSiO!le

L. Clair Nelson, Commissioner

2031

Distribution
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Kevin J. Darken, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Paul H. Proctor, Esq.
Utah Power & Light Company
P.O. Box 899
Salt Lake City, Utah 84110
Colleen A. Geraghty, Esq.
James B. Crawford, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Michael Dinnerstein, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
333 West Colfax Avenue, Suite 400
Denver, Colorado 80204

2032

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

December 29, 1987

HARLEY M. SMITH
Docket Nos. KENT 86-23-D
KENT 86-84-D

v.

BOW VALLEY COAL RESOURCES, INC.
BEFORE:

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

ORDER

BY THE COMMISSION:
In this discrimination case arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §801 et seg. (1982), a Joint Motion to
Dismiss has been filed based on settlement. For the reasons set forth
below, the motion is granted.
In decisions issued on April 14, 1987, and August 19, 1987,
Commission Administrative Law Judge Avram Weisberger concluded that Bow
Valley Coal Resources, Inc. ("Bow Valley 11 ) . had unlawfully discharged
Complainant Harley M. Smith in violation of section lOS(c)(l) of the
Mine Act, 30 U.S.C. §815(c)(l), and ordered Bow Valley to reinstate Mr.
Smith and to pay him approximately $52,880 in back pay plus interest,
$2,500 in attorney 1 s fees, and miscellaneous costs. 9 FMSHRC 735 (April
1987) (ALJ); 9 FMSHRC 1468 (August 1987) (ALJ). Bow Valley filed a
petition for discretionary review, which the Commission granted on
September 25, 1987.
On October 28, 1987, we issued an order granting the complainant 1 s
motion to stay proceedings on review pending submission of a dismissal
motion based on the parties 1 settlement of the case. On November 16,
1987, the Commission received
brief Joint Motion to Dismiss, stahing
that the parties "have.reached an agreement which disposes of all issues
raised herein." The motion was signed on behalf of Great Western Coal
Inc. ( 11 Great Western"), which was described as the "successor 11 to Bow
Valley. The Commission administratively directed the parties to
supplement the record by submitting the actual settlement agreement.
Cf. Secretary of Labor on behalf of John Koerner v. Arch Mineral Coal
Co., 1 FMSHRC 471 (June 1979). The Commission has now received that

a

2033

agreement, which is signed by Smith, and certain additional information
concerning the agreement.
Upon consideration of the record as supplemented, we approve the
settlement and grant the dismissal motion. Accordingly, our direction
for review is vacated and the proceeding is dismissed.

Commissioner

L. Clair Nelson, Commissioner

Distribution
John C. Carter, Esq.
Smith & Carter
10.5 Central Street
Harlan, Kentucky 40831
Joshua E. Santana, Esq.
Brown, Bucalos, Santana & Bratt
201 West Short Street
Lexington, Kentucky 40507
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Connuission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

2034

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE '400
DENVER, COLORADO

80W4

DEC 1 1987

CIVIL PENALTY PROCEED! NG

SECRETARY OF LABOR,
MINE SAFETY AND HFALTH

IX>cket No. WEST 8 7-172
A.C. No. 48-01353-03503 K48

ADMINISTRATION CM SHA) 1

Petitioner

v.

Rochelle Mine

TIC-THE INDUSTRIAL COMPANY'
STEAMOOAT SPRINGS, IOC.,
Respondent

OF

.
DECISION

Appearances:

James H. Barkley, Esq., Off ice of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
JohnL.C. Black, ESq., TIC-The Industrial Company
of Steamboat Springs, Inc., Steamboat Springs,
Colorado,
for Respondent.

Before:

Judge Cetti
Statement of the Case

This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et~., ("Mine
Act"). The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges the operator of a coal mine with
violating regulation 3 O c. F. R. § 77 .14 01 which req:ui res:
"Hoists and elevators shall be equipped
with overspeed, overwind, and automatic
stop controls and with brakes capable
of stopping the elevator when fully
loaded. n
This proceeding was initiated by the Secretary with the filing
of a proposal. for assessment of a civil penalty.
The operator
filed a' timely appeal contesting the existence of the alleged
violation and the amount of the proposed penalty.

2035

Discussion
The Petitioner charges Respondent with using a "Grove crane
RT 6205" (a mobile crane) as a manlift to hoist miners 60 feet up
the side of the transfer building in a basket which was attached
to the hoisting cable hook.
The crane was not provided with overspeed, overwind, and automatic stop control.
It was Respondent's position that the hoisting standard cited
does not apply to mobile cranes unless they are positioned over a
shaft and used to lower and raise men or materials in the shaft.
Respondent contends that§ 77.1401 was intended to apply only to
lifting devices used to raise or lower men or materials from or
to an underground mine site and that the citation, therefore, was
improperly issued.
Respondent points out that the Dictionarx of
Mining, published by the Bureau of Mines, makes no mention of
mobile cranes in its definition of hoists.
At the hearing the parties negotiated and stated on the record
that they had reached a S,ettlement, subject to the approval of the
Judge, under which the Petitioner moved that the proposed penalty
be reduced from $240 to $140, and Respondent moved to withdraw its
notice of contest.
The proposed amendment to the penalty was based on information
obtained by the Petitioner in its pretrial preparation of this
matter.
Primarily, Petitioner had found that Respondent had a
written company policy setting out a number of safeguards pertaining to the use of a man-basket with a crane and that those
safeguards, when used, were such that they showed that the gravity
of the violation was not as severe as originally assessed by the
Petitioner and further showed that the negligence of the Respondent
was not as great as originally assessed by Petitioner o
Conclusion
After careful review and consideration of the pleadings,
argumentsu and the information placed upon the record at the
hearingu I am satisfied that the proposed settlement disposition
is reasonable, appropriate and in the public interesto
Accordingly, the motions made at trial are granted.

2036

ORDER
Citation No. 2830003 is aff inned and respondent is ORDERED to
pay a civil penalty of $140 within 30 days fran the date of this
decision.

-

;ft Cffi

F. Cetti
~
nistrative Law Judge
t

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado
80294 (Certified Mail)
John Lo Co Blacku Esq. u TIC-The Industrial Company of Steamboat
Springsu Inc.u 40185 Routt County Road 129v Steamboat Springs,
Colorado 80477 (Certified Mail)

/ot

2037

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

22041

DEC2 1987
OTIS ELEVATOR COMPANY,
Petitioner

CONTEs·r PROCEEDINGS
Docket No. PENN 87-25-R
Citation No. 2690792;
10/27/86

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

v.

Docket No. PENN 87-26-R
Citation No. 2690793;
10/27/86
CIVIL PENALTY PROCEEDINGS
Docket No. PENN 87-69
A.C. No. 36-00840-03501 B70
Docket No. PENN 87-86
A.C. No. 36-00840-03502 B70

OTIS ELEVATOR COMPANY,
Respondent

Cambria Slope Mine 33
DECISION

Appearances:

Before~

Linda M. Henry, Esq., Philadelphia, PA, for
Secretary of Labor;
w. Scott Railton, Esq., Reed, Smith, Shaw &
Mcclay, Washingtonv DC, for Otis Elevator
Companyo

Judge Fauver

These consolidated actions were brought under the
Federal Mine Safety and Health Act of 1977, 30 U.S.Co
§ 801 et ~ Otis Elevator Company seeks to vacate two
citations and the Secretary seeks civil penalties against
Otis for the alleged violationso The key issue is whether
Otis is subject to the provisions of the Act.
Having considered the hearing evidence and the record as
a wholev I find that a preponderance of the substantial,
probative, and reliable evidence establishes the following:
FINDINGS OF FACT
1. Otis is an independent contractor that regularly
inspects, services and repairs a deep shaft elevator at
Cambria Slope Mine No. 33, which is operated by Beth Energy

2038

Mines, a subsidiary of Bethlehem Steel Corporation. Otis'
contract with Bethlehem Steel Corporation calls for weekly
inspection and maintenance of the elevator and repairs on an
as-needed basis. The mine produces coal for use in or
substantially affecting interstate commerce.
2. Otis employs elevator mechanics in two capacities.
Some mechanics are maintenance examiners, who perform weekly
inspections and preventive maintenance· work on elevators.
The other mechanics respond to service calls outside the
scope of the routine inspections. Maintenance examiners,
service mechanics, and helpers operating out of the
Johnstown, Pennsylvania office of Otis service the elevator
at the Cambria Slope Mine No. 33. The mine elevator is on a
route that includes elevators in a Sears and Roebuck store,
an office building, two banks and a hospital. The
maintenance examiners, service mechanics, and helpers perform
the majority of their work on elevators in above-ground
facilities.
3. Otis has an identification number assigned by MSHA
for independent q~etractois who are subject to the Act.
4. Otis' maintenance examiners spend between one and
two hours a week inspecting and doing maintenance work on
the mine elevator. If problems are discovered, the examiners
may remain longer at the mine. Service mechanics and helpers
average two to four "call back" trips to the mine each month.
These range from one and a half to nine hours per visit
depending on the repairs needed. On the average, Otis
employees inspect or repair the mine elevator two times a
week and spend up to 20 hours a month at the mine. In
addition, Otis employees conduct a "no load" safety test of
the elevator every 60 days.
5o The elevator transports miners 800 feet underground,
stopping at two coal searnso The elevator is the primary
escapeway for 60 miners on each shift, and an alternative
escapeway for 60 other miners. It was selected as the
primary escapeway because it is the easiest and fastest way
to exit the mine. Its other primary function is to transport
all the production crews. Over 200 miners use the elevator
each day to travel to and from their work underground. If
the elevator were not available to transport the miners for
their shift workv production of coal would be directly
affected. The mine superintendent, Peter Merritts, estimated
that production would decrease as much as 3,000 clean tons a
day if the elevator were not available to transport the
miners during a shift change. Also, the elevator is used to
transport small tools used by the miners.

6. Otis has control over, and responsibility for, the
inspection, maintenance, and repair of the mine elevator. It
has the responsibility for ensuring safe and reliable
2039

elevator transportation for all production miners as well as
as personnel using the elevator as an escapeway.
7. On October 27, 1986, MSHA Inspector Niehenke issued
Citation 2690793 because Otis employees failed to tag an
elevator electrical circuit while they were doing electrical
work on the elevator. They had locked out the circuit, but
they did not place a tag on the circuit. He issued Citation
2690792 because the Otis ~nployees were doing electrical work
on the elevator but they were not qualified as coal mine
electricians or being supervised by a qualified coal mine
electrician.
DISCUSSION WITH FURTHER FINDINGS
In the 1977 Amendments to the Mine Safety Act, Congress
amended the definition of a mine operator to include "any
independent contractor performing services or construction at
such mine." 30 o.s.c. § 802(d).
The Act defines "coal or other mine" as" •.. an area of
land from which minerals are extracted ••• and •.• shafts,
slopes, tunnels anq workings, structures, facilities
on
the surface or underground, used in ••• the work of
extracting such minerals ••.• " 30 u.s.c. § 802(h). The
Senate Committee reporting on the 1977 Amendments stated
that, "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. 95-181, 95th Cong.,
reprinted in U.S. Code & Cong. Adm. News (1977) 3401, 3414.
The Secretary's administrative "final rule" on
independent contractors, found at Part 45, 30 C.F.R., defines
independent contractor as a person or business that
"contracts to perform services or construction at a mine."
The preamble t~ the final rule reinforces the definition of
independent contractor as one who performs service and repair
work. The general discussion in the preamble states that the
1977 Act clarified that "independent contractors performing
services or construction at mines are subject to the Act."
45 Fed. Reg" at 44494 (July 1, 1980). The commentary also
states that independent contractors may perform "short-termn
and "intermittent" work at the mines, and that they may be
engaged in every type of work from a new mine construction to
minor repairs"
The Secretary particularly rejected litmus
tests for identifying contractors and stated that
"enforcement decisions should be made on the basis of the
facts pertaining to each particular case." 45 Fed. Reg.
444940
Exposur~ of employees of an independent contractor
to the same hazards as employees of the mine operator is an
important consideration in determining application of the

2040

Act. Bituminous Coal Oper. Ass'n v. Secretary of the
Interior, 547 F.2d, 240 (4th Cir. 1977). Another important
consideration is the point that employees of independent
contractors unschooled in mine health and safety may pose a
threat to the safety of all persons working at the mine.
National Industrial Sand Ass'n v. Marshall, 601 F.2d 689, 703
C3rd Cir. 1979).
The Fourth Circuit has held that ~mployees of an
electric utility company who read a meter monthly near a mine
access road were not subject to the Act. Old Dominion Power
Co. v. Donovan, 722 F.2d 92 (4th Cir. 1985).1/ The meter was
isolated by a chain link fence. The Fourth-Circuit found
that the meter en\ployees 11 rarely go upon mine property, and
hardly, if ever, come into contact with the hazards of
mining." 772 F.2d at 93.
In contrast to that case, Otis employees perform
frequent and substantial safety inspections and repairs of
the mine elevator. Its employees have a continuing, regular
presence at the Cambria Slope Mine No. 33. They visit the
mine every week to inspect and service the elevator and in an
average month ther also perf arm repairs at the mine four to
six times. In January, 1986, for example the repair reports
show six visits to the mine in addition to the four weekly
maintenance visits, for a total of ten days at the mine.
The mine elevator is a critical part of the mine.
It is used as a "mantrip" for all of the production crews.
If the elevator breaks down, production could be cut by as
much as one third. The elevator is also an escapeway for
part of the mine, and as such is subject to MSHA regulations.
Thus, Otis employees have a substantial, recurring presence
at the mine and they perform crucial safety repairs on a key
lity of the mineo They are not "rare" visitors, 11 remoten
from the dangers
the mine as were the employees in Old
Dominion" Otis more than meets the Act 1 s broad definition of
independent contractor.
If a point exists where a
contractor's contacts with a mine are too minimal to bring it
under the scope of the Act, that point is not met here.
l/

The Fourth Circuit relied on the criteria in MSHA's
rule," which initially identified an independent
contractor as one involved in "major work" and having a
"continuing presence" at the mine. 772 F.2d at 97, fn. 6.
However, in promulgating the final rule MSHA specifically
retreated from these two criteria. The Secretary is not
bound by proposals published in the Federal Register that
fail to survive in the final rule.

~proposed

2041

Inspector Niehenke properly cited Otis for the
violations in this case. Otis employees created both
violative conditions. They did not tag the circuit they
locked out and they performed electrical work on the elevator
without the supervision of a qualified mine electrician. As
its employees created the conditions, Otis was in the best
position to remedy the violations.
With regard to Citation 2690792, Otis violated the plain
language of the regulation. Otis employees were performing
electrical repair work and they were neither qualified by the
Secretary as coal mine electricians nor being supervised by a
qualified mine electrican. Performing elecrical work on the
mine elevator without certified training and knowledge of
mine safety and health rules and requirements presented a
descrete safety hazard. This violation could reasonably be
expected to result in an accident if persisted in over an
indefinite period. The injuries likely in the event of an
accident could reasonably be expected to be serious. The
inspector's finding of a "significant and substantial"
violation in Citation 26907~2 will therefore be affirmed.
Otis also vi6lated the safety standard cited in Citation
2690793. Otis had not tagged out the circuit its employees
were working on. Thus there was a violation of 30 C.F.R. §
77.501. Inasmuch as the Otis employees had locked out the
circuit, the violation did not present a discrete hazard to
the Otis employees or the operator's miners. The inspector
therefore did not rate this violation "significant and
substantial."
Well before the inspection in these cases, Otis was
expressly informed by.MSHA of its enforcement position that
the Act applied to Otis' contract work at the subject mine.
Otis disregarded this position and chose to work without
complying with the Act and mine safety standards. The
inspectorus allegation of an "unwarrantable" failure to
comply with the standards cited in Citations 2690792 and
2690793 will therefore be affirmed.
Otisrr defense that its compliance with the Act and
mine safety standards would create a "greater hazard" or a
"diminution of safety" is raised in the wrong forum. The
Commission has held that the "greater hazard" or "diminution
of safety" defense is not permissible where the operator has
not first filed a petition for modification with the
Secretary of Labor.
In Penn Allegheny Coal Co., 3 FMSHRC
1392 (1981), the operator contended that application of the
Secretary's regulation would endanger the safety of the
miners. 'rhe Commission noted that § 10l(c) of the Act was
specifically designed to resolve such questions, and held
that the operator could not wait until it was cited for a

violation of a safety regulation to raise such an issue in an
enforcement proceeding:
We cannot endorse this short circuiting of the
Act's modification procedures. We believe it is
important that questions of diminution of safety
first be pursued and resolved in Ebe context of the
special procedure provided for in the Act, i.e., a
modification proceeding.
~~
The Commission has recognized one narrow exception
to this requirement. In Sewell Coal Co., 5 FMSHRC 2029
(1983), the Commission stated:
We realize that emergency situations may arise
where the gravity of circumstances and presence of
danger may require an immediate response by the
operator or its employees, necessitating a
departure from the terms of a mandatory standard
without first resorting to the Act's modification
procedures. In such eonditions, an exception to
the Act's modification and liability provisions may
be necessary in order to further the Act's primary
goal, the protection of miners. Penn Allegh did
not present such a situation, nor does this case.
Rather, these cases involve only the operator's
ability to conduct safely routine mining operations
on a continuing and regular basis. Therefore, we
reserve for a case appropriately raising such an
issue detailed consideration of any emergency
exception to the general rules on modification and
liability.
Otis has done that which the Commission expressly
forbidsg
it has unilateral
determined that it may conduct
its operations at a mine site in a "safer" manner than would
be achieved by compliance with mandatory safety standards.
Absent the narrow circumstances of an emergency situation,
Otis may not raise this defense in an enforcement proceeding.
It may not sit back and wait until it is cited for a safety
violation to all e that greater hazards would exist if it
compli
with the standards cited. Otis has not shown that
an emergency threatening the safety or health of personnel
justified its non-compliance with the cited safety standards.

2043

Considering all the criteria for a civil penalty in
§ llO(i) of the Act, a civil penalty of $300 for Citation

2690792 and $20 for Citation 2690793 are found appropriate.
CONCLUSION OF LAW

1. The Commission has jurisdiction in these
proceedings.
2. Otis Elevator Company violated the safety standard
as charged in Citation 2690792.
3.

Otis Elevator Company violated the safety standard

as charged in Citation 2690793.

ORDER
WHEREFORE IT IS ORDERED that:

1.

Citation 2690792 is AFFIRMED.

2.

Citation.2690793 is AFFIRMED.

3. Otis Elevator Company shall pay the above civil
penalties of $320 within 30 days of this Decision.

vJ;}L_f~
William Fauver
Administrative Law Judge
Distributiong
Wo Scott Railton, Esq.

Reedu Smithv Shaw & McClayv 1150
Connecticut Avenue, Suite 900v Washingtonv D.C. 20036
(Certified Mail)

Linda M. Henryu Esq., Office of the Solicitor, U.S.
Department of Labor 1 Room 14480 Gateway Building, 3535 Market
Street, Philadelphiar PA 19104 (Certified Mail>

2044

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

DEC 3 1987
UNITED MINE WORKERS OF
AMERICA (UMWA) I
ON BEHALF OF
ROBERT L. COX,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 84-224-D

-

Ken Underground Mine

v.
PEABODY COAL COMPANY,
Respondent
ORDER OF DISMISSAL

Before:

Judge Broderick

On November 6,1,1987, r' issued an order to show cause
on or before November 24, 1987, why this proceeding should
not be dismissed. No response to the order has been filed.
Therefore, this proceeding is DISMISSED.

Distribution~

Mary Lu Jordan, Esqop United Mine Workers of America, 900
15th Sto N.W", Washingtonr D.Co 20005 (Certified Mail)
Michael A. Kafoury, Esq., Peabody Coal Co., P.O. Box 373,
St. Louis, MO 63166 (Certified Mail)
slk

2045

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

DEC 3 1987
UNITED MINE WORKERS OF
AMERICA ( UMWA) I
ON BEHALF OF
JIMMY JOHNSON,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 86-65-D

v.
PEABODY COAL COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Broderick

On November 6, .1987, I issued an order to show cause
on or before November 24, 1987, why this proceeding should
not be dismissed. No response to the order has been filed.
Therefore, this proceeding is DISMISSED.

!

•,

1-c.1:
"' ;<.L. J
i.
"":..~....t:

..

/}

:/__

1! /l{1,z dA'1c '--...___

/ / ' r 1_

7

r.7

James A. Broderick
Administrative Law Judge

Distribution:
Mary Lu Jordan, Esq., United Mine Workers of America, 900
15th St., N.W., Washington, D.C. 20005 (Certified Mail)
Michael A. Kafoury, Esq., Peabody Coal Co., P.O. Box 373,
St. Louis, MO 63166 (Certified Mail)
slk

2046

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

DEC 3 1987
UNITED MINE WORKERS OF
AMERICA (UMWA) I
ON BEHALF OF
RICHARD E. JARVIS,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 86-66-D

v.
PEABODY COAL COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Broderick

On November 6,-1987, I issued an order to show cause
on or before November 24, 1987, why this proceeding should
not be dismissed. No response to the order has been filed.
Therefore, this proceeding is DISMISSED.

/tti1ti: s ,~Ji--cct-1/lt./e

;;J James A. Broderick
-

Administrative Law Judge

Distribution:
Mary Lu Jordan, Esq., United Mine Workers of America, 900
15th St., N.W., Washington, D.C. 20005 (Certified Mail)
Michael A. Kafoury 1 Esq., Peabody Coal Co.r P.O. Box 373,
St. Louis MO 63166 (Certified Mail)
slk

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

DEC 4 1987
RONALD SIZEMORE,
Complainant
v.

DISCRIMINATION PROCEEDING
Dockeb·No. KENT 87-223-D
BARB CD 85-64

WHITAKER COAL CORPORATION,
Respondent
DECISION
Appearances:

Before:

Mr. Ronald Sizemore, Hazard, Kentucky, pro ~;
A. P. Gullet, Esq., Gullett, Combs & Holliday,
Hazard, Kentucky for Respondent.

Judge Melick_

This case is before me upon the Complaint of Ronald Sizemore
under section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et. seq., the "Act", alleging that the
Whitaker Coal Corporation discharged him on August 21, 1985, in
violation of section 105(c)(l) of the Act. The preliminary issue
before me is whether Mr. Sizemore filed his Complaint with this
Commission in a timely manner.
Mr. Sizemore initially filed his Complaint with the
Secretary of Labor, on August 26, 1985. Thereafter by letter
dated November 21, 1985, the Secretary of Laboru through his
agent~ Willard Querryv District Managerv informed Mro Sizemore of
his determination that a violation of section 105(c) had not
occurredo This letter was received by Mr. Sizemore on November
23v 1985. Sizemore did not however file his complaint of
discrimination with this Commission until August 13, 1987, more
than 19 months latero
Section 105(c)(3) of the Act provides, in part, that
"if the Secretary, upon investigation, determines that the
provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice of the
Secretary 1 s determination, to file an action in his own behalf
before the Commission charging discrimination or interference in
violation of paragraph (l)."
Clearly Mr. Sizemore did not file within the prescribed 30
day time period. The relevant legislative history provides
however that "this 30-day limitation may be waived by the court

2048

in appropriate circumstances for excusable failure to meet the
requirements". Senate report 95-181, 95th Congress, 1st
Session 37 (1977), reprinted for the Senate Subcommittee on
Labor, Committee on Human Resources, 95th Congress, 2nd Session,
Legislative History of the Federal Mine Safety and Health Act of
1977, at 625 (1978). See also Herman v. Imco Services, 4 FMSHRC
2135 (1982), and Hollis v. Consolidation Coal Co., 6 FMSHRC 21
(1984).
Mr. Sizemore testified in reference to filing his complaint
that he thought he "could wait a while and pick it up later". He
claims that this was the first opportunity he had to file for
nearly 19 months.
He maintained that "he had so much to deal
with" including the hospitalization of his wife and child,
divorce proceedings and a house fire, that he presumably did not
have time to file.
He concedes however that everyone was out of
the hospital, his divorce proceedings were concluded, and that he
had received an insurance settlement on his house fire by July
1986, yet did not file for more than a year after that.
Sizemore also acknowLedges that he talked to several
attorneys about this case. In January 1986 one attorney declined
to handle the case advising him that he had not filed timely.
Thus as early as January 1986 Sizemore had legal advice that he
had not filed within the statutory time limits. He nevertheless
further delayed filing a complaint with this Commission until
August 13, 1987, over a year-and-a-half later.
Under all the circumstances I have little difficulty in
finding that Mr. Sizemore has no legally sufficient excuse or
justification for the untimely filing of his complaint with this
Commission. Accordingly the Complaint must be dismissed.
ORDER
Discrimination Proceedings Docket Noo KE T 87-223-D are
dismissedo

) Ga
Law Judge

2049

Distribution:
Mr. Ronald Sizemore, RR#3, Box 225, Hazard, KY
(Certified Mail)

41701

A. P. Gullett, Combs & Holliday, 109 Broadway, P.
Hazard, KY 41701-05039 (Certified Mail)
npt

2050

o. Drawer 1039,

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

DEC 7 1987
CONTEST PROCEEDINGS

GREENWICH COLLIERIES,
DIVISION OF PENNSYLVANIA
MINES CORPORATION,
Contestant

Docket No. PENN 85-188-R
Order No. 2256015; 3/29/85

v.

Docket No. PENN 85-189-R
Order No. 2256016; 3/29/85

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

Docket No. PENN 85-190-R
Order No. 2256017; 3/29/85
Docket No. PENN 85-191-R
Order No. 2256018; 3/29/85
Docket No. PENN 85-192-.R
Order No. 2256019; 3/29/85
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 86-33
A. C. No. 36-02405-03614

v.

Greenwich No. 1 Mine

GREENWICH COLLIERIES,
Respondent
PARTIAL SUMMARY DECISION
Before:

Judge Maurer

These cases are before me on remand from the Commission 1/
with speci
instructions from the majority to consider and rule on Greenwich's challenge to the validity of the five section 104(d) (1) orders at bar because they were not issued within 90 days of the underlying section 104(d) (1) citation upon
which they were based and because they were not issued "forthwith."
Subsequent to the Commission's decision in these cases,
counsel for Greenwich Collieries, Division of Pennsylvania
Mines Corporation (PMC) has moved for summary decision pursuant to Commission Rule 64, 29 C.F.R. § 2700.64, arguing that
1/

Greenwich Collieries, 9 FMSHRC 1601 (September 30, 1987).

2051

the instant orders are invalid on the basis of the aforementioned two grounds. PMC had previously included these two
bases for invalidity of the orders in their original motion
for summary decision filed in April 1986, but I did not consider them at that time.
Rather, I partially granted their
first motion for summary decision, modifying the five orders
to section 104(a) citations, because they were issued based
upon an investigation as opposed to an-inspection and because
the violations had long since ceased to exist at the time the
orders were issued. On September 30, 1987, the Commission
reversed me on that decision and remanded the cases to me
for further proceedings.
The essential facts of these cases ·are as set out by
the Commission in its decision of September 30, 1987: ~/
On February 16, 1984, a methane ignition and
explosion occurred at the Greenwich No. 1 mine, an
underground coal mine operated by Greenwich Collieries, Division of Pennsylvania Mines Corporation
("Greenwich .. }, and located in southwestern Pennsylvania.
Three miners were killed and eleven others
were injured- in the explosion.
Representatives of
the Department of Labor's Mine Safety and Health
Administration ("MSHA") arrived at the mine, engaged in rescue and recovery
forts, observed conditions at the site, and began an investigation of
the cause of the explosion. As part of its investigation, MSHA examined the entire mine between February 25 and April 5, 1984, and between March 27 and
April 27, 1984, took sworn statements from numerous
individuals who participated in the recovery operations or who had information regarding the conditions
in the mine prior to the explosion. The Secretary's
investigators concluded that the operator's unwarrantable failure to comply with five mandatory safety
standards contributed to the accident.
Therefore, on
March 29, 1985, MSHA Inspector Theodore w. Glusko
issued to Greenwich the five section 104(d) (1) orders
of withdrawal at
sue in this case.
The orders alleged that violations of various safety standards had
occurred in December 1983 and January and February
1984.
Each of the section 104(d) (1) orders indicated
that they were based on a section 104(d) (1) citation
issued to Greenwich on February 24, 1984. The orders
also indicated that they were terminated at the time
that they were issued. No miners were withdrawn from
the mine as a result of the orders.

2/

Id. at 1602-1603.

2052

The Secretary, in his brief in opposition to the motion
for summary decision goes into much more detail concerning
the merits of the alleged violations and the special findings.
However, the merits of these cases are not at issue at this
point in the proceedings. PMC's motion for summary decision
is based entirely on the invalidity of the Orders under the
terms of § 104(d) (1) of the Federal Mine Safety and Health Act
of 1977 (the "Act").

y

3/

Section 104(d) (1) provides:
If, upon an inspection of a coal or other
mine, an authorized representative of the
Secretary finds that there has been a violation
any mandatory health or safety
standard, and if he also finds that, while
the conditions created by such violation do
not cause imminent danger, such violation
is of such nature as could significantly and
substantially contribute to the cause and
effect of a coal or other mine safety and
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
nds 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
the area affected by
such violation, except those persons referred
to in subsection (c) of this section to be
withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the Secretary determines that
such violation has been abated.

30

u.s.c.

§

814 (d) (1)

Q

20.53

It is uncontroverted that the 104{d) (1) orders at issue
here were not actually issued within 90 days of the underlying
104(d) (1) citation. Each was issued on March 29, 1985, approximately thirteen months after the· February 24, 1984, § 104{d) (1)
citation on which they were based. However, that fact is not
particularly relevant to my reading of the statute's requirements. Section 104(d) (1) requires that if the Secretary, during the same inspection or any subsequent inspection within 90
days after the issuance of the underlying (d) (1) citation,
finds another violation caused by an unwarrantable failure, he
shall forthwith issue an order.
The 90-day period starts running with the issuance of the (d) (1) citation.
In this case
February 24, 1984. Any subsequent violation the Secretary
turns up within the following 90-day period which he also finds
to be caused by an unwarrantable failure shall be the subject
of a (d) (1) order, issued forthwith.
In this case, the Secretary alleges that physical evidence of each of the violations
was observed during the course of the inspection of the mine
immediately after the explosion and additional evidence relating to the nature and circumstances surrounding the violations
was obtained during March and.April of 1984 during the course
of formal testimony taken from those having knowledge pertaining to the accident, and conditions in the mine prior to the
explosion.
An inference can be drawn that at least by
April 27, 1984, when the formal testimony was concluded, the
existence of the violations and the factual basis for an unwarrantabili ty finding were known to the Secretary.
The Secretary goes even further and avers that within a few days or
even hours after the explosion most of the investigators had
a "strong reason" to believe that these violations existed
at the time of the explosion and that questions of management
failures (i.e., unwarrantable failure special findings) were
involved"
The critical finding of fact which needs to be made
on this point then is whether or not the Secretary had found
the five alleged unwarrantable failure violations within the
site 90-day period"
For purposes of ruling on this motion for summary decision,
I accept as true the Secretary's allegation that the violations
alleged in these cases were found by the Secretary during the
same
spection within 90 days of the February 24, 1984;
(d) (1) citation on which they are based; that is, they were
ultimately issued for violations which were found within 90
days of the underlying unwarrantable violation, as required
by § 104(d) (1)"
Therefore, I find PMC 1 s challenge to the
validity of these five orders for the reason that they were
not issued within 90 days of the original {d) (1) citation to
be without merit"
Turning now to the second ground for invalidity as alleged
by PMC to be that the subject orders were not issued "forthwith"
as required by§ 104(d) (1).

2054

Section 104(d) (1) states that once a 104(d) (1) citation
has been.issued, if within 90 days the Secretary finds another
violation
a mandatory health or safety standard caused by
an unwarrantable failure to comply, "he shall forthwith issue
11
an order
(Emphasis added) .
PMC maintains that the inclusion of the word "forthwith,"
which according to its dictionary definition or common usage
means "immediately" creates a jurisdict:ional timeliness
requirement for the issuance of orders under§ 104(d) {l).
The orders at bar allege that violations of various
safety standards occurred in December of 1983 and January and
February of 1984. The explosion occurred on February 16,
1984. MSHA examined the entire mine between February 25 and
April 5, 1984, and took sworn testimony between March 27 and
April 27, 1984, concerning the accident and conditions extant
in the mine prior to the explosion. As I have previously
noted, all of the data necessary to issue the orders had
been found on or before April 27, 1984. Therefore, MSHA
could have issued the instant orders on or about April 27, 1984, should they haye~chosen to.
They chose not to, however,
finally issuing the orders on March 29, 1985, at least eleven
months after it was feasible for them to have done so.
Given that an eleven month delay hardly demonstrates
immediacy, the question remains is the "forthwith" requirement
for issuance jurisdictional. The Secretary argues that it is
not and that in any event the delay experienced herein in issuing
these orders was "reasonable and fully justified." That delay
according to the Secretary being because the five orders at bar
involve violations that the Secretary determined directly contributed to the deaths of three miners in a major mine explos
; and it is traditional in these circumstances that citations and orders which are deemed to be related to the major
causes of major accidents are not issued until such time as the
investigation team has formulated a major draft of the final
investigative report.
It is noteworthy that tie initial unwarrantable violation and over 100 section 104(d} (1) orders
were issued in the aftermath of the explosion during the accident investigation. None of these violations were found to be,
however,
rectly related to the explosion.
On the other hand,
tte five orders at bar were purposefully not issued at that
time because they did involve violations that had been identified as having contributed to the accident itself.
These violations were purportedly subjected to greater scrutiny and
research and ultimately issued as (d) (1) orders on March 29;
1985.
The Secretary's secondary or "fall-back" position on this
point seems to be that even if the "forthwith" requirement is

2055

jurisdictional, deviations therefrom are not jurisdictionally
defective unless the operator can demonstrate substantial
prejudice or a lack of substantive due process.
The Secretary
then concludes that in this particular case no harm has accrued to the operator by virtue of the delayed issuance and
absent a finding that such harm exists, the statutory requirement that such orders issue "forthwith" cannot be an absolute
procedural bar to the delayed issuance of the (d) (1) orders,
as here.
Section 104(d) differs from~ 104(a) in that the statute
expressly recites that delay in issuing a citation under 104(a)
is not jurisdictional. There is no similar saving provision
in 104(d), and I conclude that the Secretary's failure to issue
the orders at bar "forthwith" is a jurisdictional defect which
renders them invalid as (d) (1) orders.
There clearly is Congressional interest in the timeliness of withdrawal orders, and
I can find no indication in the Act or its legislative history
that these timeliness requirements deliberately placed in the
Act by Congress are not jurisdictional prerequisites to the
issuance of valid withdrawal orders pursuant to§ 104(d) . •
Furthermore, there is-rio evidence of Congressional intent to
differentiate between the timeliness of withdrawal orders that
relate to violations which cause mine accidents and those which
do not.
The Secretary's enforcement policy which caused the
long delay in issuing the (d) (1) orders at bar, no matter how
"reasonable" it may be, is clearly at odds with the express
timeliness term of the statute itself.
With regard to the Secretary's argument that PMC has not
been prejudiced by the delay in issuance of the orders, I find
that in the case of § 104 (d) ( 1) orders, as opposed to § 104 (a)
citations, a showing of prejudice is not required"
However,
even if some showing was required, I agree with PMC that an
11-13 month delay in noti ing the operator of what specifically
is charged with doing or failing to do is inherently
prejudicial in some degree to an operator's ability to defend
itself against the allegations contained in the orders.
PMC also contends that MSHA's delays in issuing these
orders violates even§ 104(a) 's more liberal standard of "reasonable promptness." Perhaps, but since the statutory mandate
that § 104(a) citations be issued with "reasonable promptness"
is not a jurisdictional prerequisite to enforcement~ I am unwilling to dispose of these extremely serious allegations on
that kind of procedural basis.
Therefore, I am modifying the
five (d) (1) orders at bar to§ 104(a) citations and a hearing
on the merits of the violations, as well as the S&S special
findings and penalties to be imposed, if any, will be necessary
to finally dispose of these proceedings.

2056

ORDER
In accordance with the foregoing, the motion of PMC for
summary decision is granted in part and denied in part; and
Order Nos. 2256015-2256019 are hereby modified to citations
under section 104(a) of the Act.

Rf:.
4ul!fa
~,
i~ii~irative
Law Judge

Distribution:
Thomas C. Means, Esq., Crowell & Moring, 1001 Pennsylvania Ave.,
NW, Washington, DC 20004 (Certified Mail)
Edward H. Fitch, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Earl R. Pfeffer, Esq., United Mine Workers of America, 900
th St., NW, Washington, DC 20005 (Certified Mail)

yh
2057

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

DEC 7 1907
Q

CIVIL PENALTY PROCEEDING
Docket No. WEST 87-74
A.C. No. 05-00469-03598

v.

Dutch Creek No. 2 Mine

MID-CONTINENT RESOURCES, INC.,:
Respondent
DECISION
Appearances:

James H. Barkley, F.sq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Edward Mulhall, Jr., Esq., Delaney & Balcomb,
Glenwoo9. Springs, Colorado,
for Respondent.

Before:

Judge Morris

The Secretary of labor, on behalf of the Mine Safety and
Health Administration, (MSHA), charges respondent with violating
30 C.F.R. § 90.100, a regulation promulgated under the Federal
Mine Safety and Health Act, 30 U.S.C. § 801 et al., (the ~ct).
After notice to the parties a hearing on the merits
commenced in Glenwood Springs, Colorado, on April 14, 1987. The
parties did not file post-trial briefs but they orally argued
their
ews.
Issues
The issues are whether respondent violated the regulation;
if sou what penalty is appropriateo
Summary of the Case
§

Citation 9996024 alleges respondent violated 30 CoFoRo
900100 which provides as followsg
§

900100

Respirable dust standard

After the twentieth calendar day following receipt of
notification from MSHA that a Part 90 miner is employed
at the mine, the operator shall continuously maintain
the average concentration of respirable dust in the mine
atmosphere during each shift to which the Part 90 miner

2058

in the active workings of the mine is exposed at or below
1.0 milligrams per cubic meter of air. Concentrations
shall be measured with an approved sampling device and
expressed in terms of an equivalent concentration determined in accordance with § 90.206 [Approved sampling
devices~ equivalent concentrations].
Stipulation
At the commencement of the hearing the parties stipulated as
follows:
1.

The case involves miner Verlin F. Windedahl (Tr. 4).

2. After Windedahl received a work permit a chest x-ray
disclosed that he was in the early stages of Black Lung Cpneumoconiosis) (Tr. 4).
3. Under Part 90 regulations such a miner, at his request,
may transfer to an atmosphere where there is less than one
milligram of respirable dust per cubic meter of air {Tr. 5).

4. The operator was notified of Windedahl's Part 90
classification on March 24, 1986 CTr. 5).
So
On April 16r 1986 Windedahl was transferred to what was
believed to be a less dusty atmosphere.

6. After he was reassigned the operator took samples within
the breathing zone of the miner. The samples were sent to MSHA
for analysis. The results are set forth in Citation No. 9996024
infra. The results, received by the operator on May 12, 1986,
are true and accurate as ascertained by the laboratory {Tr. 5, 6,
Ex" P 1 (a)) "

30

7o
Other samples were taken from May 16u 1986 through June
986a

Bo On June 30v 1986 a second group of samples indicated
there was still an exposure to respirable dust that exceeded one
milligram per cubic meter (Tro 6)"
9o
The samples taken June 30u 1986 resulted in a § 104(b)
Order Noa 2213912 issued by MSHA Inspector Michael Horbatko (Tr.
6) a

10. The sampling results from the laboratory of miner
Windedahl are true and correct (Tr. 6, 7).
The file reflects that the operator contested Citation No.
9996024 and the subsequent § 104(b) Order No. 2213912.
Citation No. 9996024, issued May 7, 1986, provides in its
relevant part as follows:
2059

Based on the results of 5 dust samples collected by the
operator and reported on the attached teletype,message,
dated May 6, 1986, the average concentration of
respirable dust in designated area sampling point 850-0
was 2.7 milligrams exceeding the applicable limit of 1.0
milligrams. Management is hereby required to take corrective action to lower the concentration of respirable
dust to within the permissible concentrations of 1.0
milligrams per cubic meter of air and then sample each
shift until five valid samples are taken and transmitted
in accordance with Section 90.209. Approved respiratory
equipment shall be made available to all persons working
in the area. Based on the results of the company's
sampling program, this Notice was issued in accordance
with Section 104(A) of the Federal Mine Safety and
Health Act of 1977.
(Exhibit P-l(a))
Subsequently, three valid respirable dust samples were
received for the Part 90 Miner within the required time. A
citation, dated June 9, 1986 was issued for not submitting five
valid samples within the required time. Time was granted to
collect additional sa~ples.
On July 1, 1986, Order No. 2213912 was issued under Section
104(b) of the ~ct.
In its pertinent portion it provided as
follows:
The respirable dust concentration of the Part 90 Miner
identified in Citation No. 9996024, dated 05/07/86, is
still in excess of the applicable standard. Due to the
obvious lack of effort by the operator to control
respirable dust, the period of reasonable time for the
abatement of this violation is not further extended.
(Exhibit P-2(a))
Subsequent

the order was modified and later terminatedo

At the hearing the Secretary rested on the stipulation of
the parties and the testimony of MSHA safety and health
specialist Grant McDonald.
GRANT McDO~ALD is responsible for enforcing the respirable
dust standards (Tr. 16, 17).
Respirable dust is measured in microns. A micron, which is
invisible to the naked eye 1 measures 1/25,000th of an inch.
Studies indicate that pneumoconiosis is caused by dust measuring
five microns or less. This size causes massive fibrosis in the
lungs. Eventually it can cause death. A dust pump will pickup
particles of respirable size.
It will also pickup particles from
five to ten microns in size (Tr. 19).
An option under Part 90 permits the miner
to transfer to
a less dusty atmosphere. If he does transfer his new work
position is designated.
He is then subject to the special
2060

sampling provided in Part 90 (Tr. 22, 23). MSHA was advised that
miner Windedahl exercised his option and transferred to a less
dusty atmosphere (Tr. 23).
At that point MSHA checked to see if
they have' transferred the miner to a less dusty area.
The new
work area must contain less than one milligram of respirable dust
(Tr. 24).
Windedahl was reassigned as a "Stopping Man" (Tr. 25).
This
position is in the intake air, which is usually clean air, i.e.,
one milligram or below (Tr. 26).
After transfer an operator has 15 calendar days to sample
the transferee (Tr. 27).
Most operators and MSHA use a MSA respirable dust pump (Tr.
28). Each filter is weighed and sent to MSHA's Technical Support
Office in Pittsburgh office for analysis (Tr. 29).
In most cases the miner either wears the pump within four
feet of his working place.
It basically samples the air of the
breathing zone of the worker_(Tr. 30).
Particles larger than 5 microns void any sample.
size cannot cause lung disease (Tr. 34).

The larger

If the sample shows an overexposure the sampling is
continued (Tr. 35). When information comes to the Price, Utah
office showing an overexposure a citation is issued.
A Part 90 Miner needs only be sampled bi-monthly if he
hasn't been previously exposed.
If the sampling shows the
allowable limit has been exceeded then five additional samples
are requiredo
The actual sampling is done by duly certified mine
personnel (Tro 36-43)0
Exhibit P(l)(a)u a citation for five samplesv shows an
average concentration of 2o7 milligrams {Tro 46v 47u 56)o
After Wi~dedahl exercised his option to transfer he became a
stopping man.
As such he works along the main haulage, the least
dusty place in a coal mine (Tr. 57u 59). More dust is u~ually
generated in the face area (Tro 86)0
Inspector McDonald issued Citation 9996024 but MSHA
Inspector Horbatko issued the 104(b) Order (Tr. 62, 63).
Some
operators take six samples but Mid-Contintent does not (Tr. 77).
Michael s. Horbatko, Donald E. Ford and David A. Powell
testified for the operator.
MICHAEL S. HORBATKO, an MSHA mine safety and health
specialist, issued the 104(b) order.
He did not investigate at
Mid-Continent but relied on the information of the dust samples
relayed to him by Inspector McDonald (Tr. 87-91, Exhibit PlCb),
P2(b).

DONALD E. FORD, safety inspector, also serves as noise and
dust technician for Mid-Continent Resources.
He was originally
certified by MSHA as a dust technician in 1977.
The company uses a standard dust sampling device (Tr.
102,103, Ex. R9, RlO, Rll).
Detailed information relating to the subject miner is
submitted with the sampling cassette (Tr. 108-111, Ex. Rl2).
Verlin Windedahl started with Mid-Continent in November 1983.
Notice that he was a Part 90 miner was received in March 1986
(Tr. 112, 113). Windedahl had worked as a hardrock miner but not
as an underground miner (Tr. 113).
The witness prepared and color-coded Exhibit Rl3 (Tr. 113,
Ex. Rl3). After Windedahl was transferred none of his
samples were in compliance. They all exceeded one milligram (Tr.
122). A stopping man could be anywhere in the mine (Tr. 123).
114~

The operator offered various company records pertaining to
dust sampling (Ex. Rl1, Rl5, Rl6).
The witness observed Windedahl 300 feet or more back from
the face.
At that position he would not have been exposed to the
same dust environment as the people in the mechanized mining unit
section where they were developing the slopes (Tr. 138, 139, Ex.
Rl6)o

The company received a notice for non-compliance on May 23
(dated May 19th) for an average concentration of 4.7 milligrams.
This was caused by one sample cycle of 20.2 milligrams CTr. 142).
The witness later learned that a bunch of workers were "horsing
aroundn and throwing rock dust at the sampler that day (Tro
l
45 0 Exo Rl6), Howeveru Windedahl worked in the slope
section when he was first recognized as a Part 90 miner,
Windedahl wa·s first reassigned as a stopping repairman in April
1986 (Tro 148v Ex. Rl6)o
The sampling results and the computer results (from
Pittsburgh) concerning Windedahl cannot be reconciledo Windedahl
was out-by the face and in the fresh in-take air.
Except for one
bad sample at the face the average would have averaged about one
milligram (Tro 150v 151). In the opinion of the witnessu the
worker out-by the face was inadvertently or advertently exposing
himself to more dust" This could be an accident or on purpose
(Tro 152)" Based on the witnessv experience the face area where
the coal is being produced is the more dusty area (Tr. 153).
Higher dust readings out-by the face than in-by the producing
section indicates that something not truly accu·rate was transpiring (Tr. 153).

2062

The computer printouts of the samplings are mailed from
Pittsburgh to the company's Carbondale office.
The coal basin is
35 miles to the south so any correspondence would not be
delivered to the witness until a day or two later (Tr. 154). The
computer printout predicating Mr. Horbatko's order was received
at the Carbondale office on June 30, 1986 CTr. 155). The witness
received it the same day Mr. Horbatko arrived on the property
(Tr. 156).
Ford never talked to Windedahl about his excessively high
ratings.
No comment was made because he wasn't being accusatory
(Tr. 161).
Further, Ford didn't know if anyone else at MidContinent had talked to the miner.
Windedahl is no longer
employed by Mid-Continent, nor did Ford know his present whereabouts (Tr. 162). The pump that Windedahl returned each day to
Ford appeared to be working properly (Tr. 172).
Ford did not
particularly observe Windedahl during any particular time of each
day (Tr. 17 3) •
A timberman sets timber in different sections of the mine.
He installs wooden and fiber ~ribs (Tr. 177).
Windedahl's assignment in the slope section was anywhere
from 300 to 1000 feet out-by where the coal was being mined (Tr.
180).
He was also working on the intake, or fresh air side, of
the stoppingso
There is less dust there than in the return air
(Tro 186)0
DAVID A. POWELL has been the safety director of MidContinent Resources for four years (Tr. 92).
In the spring of 1986 the company was advised that Verlin F.
Windedahl qualified as a Part 90 miner CTr. 93, Ex. R2).
The operator transferred Windedahl and designated an
occupation code for him (Tro 94u 95u Ex. R3u R4)o
The operator
subsequently received a citation for failing to furnish five
valid respirable dust samples within 15 days after the transfer
(Tro 96u Exo RS) The citation was subsequently vacated CTr. 97,
EXo

R6)o

The operator received a computer printout on May 12, 1986
{Tro 98 9 Exo R7)o
On June 30, 1986 the company received a
duplicate copy of sample results on Windedahl (Tr. 99, Ex. R8}o
Discussion
This case involves Citation Noa 9996024 and Order No.
2213912.
Howeveru a penalty is proposed only for the citation.

2063

The regulation requires that after being notified that a
Part 90 miner has been exposed the operator must maintain the
average concentrations of respirable dust at or below 1.0 such
miner.
In the instant case the stipulation and the evidence
establishes that the operator was notified on March 24, 1986 of
Windedahl's status. The twentieth calendar day following
.
notification is April 13, 1986 Ca Sunday). On April 16, 1986,
Windedahl was reassigned. The first sampling cycle took place
April 14-21, 1986. On May 12, 1986 the first sample results
resulted in the issuance of Citation No. 9996024 on May 7, 1986.
The second sampling cycle took place May 16 - June 17, 1986. The
May 22, 1986 sample was voided due to oversized particles.
Further, sampling was done and the results were available on June
30, 1986. The samples exceeded 1.0 milligrams and the following
day, July 1, 1986, a § 104(b) Order was issued.
The foregoing facts establish that Mid-Continent violated
§ 90.100 inasmuch as Windedahl was exposed to concentrations
above 1.0 milligrams more than 20 days after Mid-Continent was
notified of his status as a Part 90 miner.
Mid-Continent does not contend otherwise.
It admits that it
violated § 90.100 and that a penalty should be assessed for
Citation 9996024 (Tr. 9, 10, 203). The operator's principal
attack is focused on the§ 104(b) Order.
To proceed to Mid-Continent's arguments: As a threshold
matter it asserts that § 90.100 conflicts with the Act. Specifically, Mid-Continent claims the Act provides an option that the
regulation does not recognize.
30

u.s.c. § 843{b){2) provides as follows:

2) Effective three years after December 30u 1969u any
miner whoq in the judgment of the Secretary of Health and
Human Services based upon such reading or other medical
examinations, shows evidence of the development of pneumoconiosis shall be afforded the option of transferring
from his position to another position in any area of the
minev for such period or periods as may be necessary to
prevent further development of such disease, where the con, centration of respirable dust in the mine atmosphere is
not more than 1.0 millograms [sic] of dust per cubic meter
of airv or if such level is not attainable in such mine,
to a position in such mine where the concentration of respirable dust is the lowest attainable below 2.0 milligrams
per cubic meter of air.
The option, referred to by Mid-Continent, and not
incorporated in the regulation relates to the situation when the
concentration of 1.0 milligrams is not attainable in the mine.
2064

The operator's argument is without merit.
It is true that
the regulation does not address a situation where a level of 1.0
milligrams cannot be attained. However, in the instant situation
the order was terminated when the atmosphere attained .06
milligrams.
In sum, the operator has not presented a factual
situation within the terms of the statute.
In addition, when one compares 30 C.F.R. § 90.100 with the
broader respirable dust regulation, 30 C.F.R. § 70.lOO(a),
(infra} it is apparent the Secretary insists on extra precautions
when a Part 90 miner is involved.
Mid-Continent further argues that Windedahl's dust samplings
do not square with reality.
Specifically, it is asserted that
Windedahl was out-by the face.
In that location an anomaly
occurred: he generated a greater concentration of dust than
miners at the face.
I am not persuaded by the company's argument on the minimal
record presented here. A timberman, who is moving about at his
work stations, could generate more dust than miners at the
working face.
Further, no credible evidence supports the view
that Windedahl "salted" his sampling cassette.
Mid-Continent further states that the § 104(b) Order is
invalid because Inspector Horbatko did not investigate the
situation at the mine.
The evidence is uncontroverted that Inspector Horbatko
relied on hearsay from Inspector McDonald as well as the
Pittsburgh computer generated information as to the results of
the dust sampling.
It is apparent that the inspector did ·not
conduct 'his own investigation.
The basic issues raised by Mid-Continent were considered by
the Commission in a series of cases decided September 30, 19870
Nacco Mining CompanyQ 9 FMSHRC 154lu White County Coal Companyu 9
FMSHRC 1578, Emerald Mines Corporation, 9 FMSHRC 1590, Greenwich
Collieries, 9 FMSHRC 1601. In view of the Commission's rulings,
I overrule Mid-Continent's motion to dismiss.

nallyq Mid-Continent states that the first set of dust
samples were an obvious aberrationo Therefore, the company
should have been entitled to a resamplingo
I disagreeo The regulation is explicito
mandate any second sampling as is urged here.

It does not

The Secretary contends the violation is S & S, that is,
significant and substantial within the meaning of the Act.
I

2065

agree.
A violation of a similar dust standard l; for coal mines
has been held to be S & s. Consolidation Coal Co., 5 FMSHRC 378
(1983); 8 FMSHRC 890, 899 (1986).
The Commission's view was
upheld on appeal in Consolidation Coal Company v. Federal Mine
Safety and Health Review Commission, et al, 824 F.2d 1071 (D.C.
Cir. 1987).
For the foregoing reasons, Citation 9996024 should be
affirmed.
Civil Penalty
In the instant case the Secretary seeks to impose a civil
penalty of $725 for the violation of Citation No. 9996024.
The
Secretary has not sought a penalty for the violation of the
§ 104Cb) Order.
Accordingly, in imposing a penalty I will only
address the evidence concerning Citation No. 9996024.
The statutory criteria to access such civil penalties is set
forth in Section llO(i) of the Act, now codified at 30 U.S.C.
§ 820(i).
I find from the evidence that the operator's history of
previous violations is numerically high.
Specifically, the evidence shows the following citations and orders have been issued
to Mid-Continent:

Year
1983
1984
1985
1986

s &s
34
185
330
473

Non S & S
211
280
181
141

Total
245
465
511
614

Orders
15
14
29
59

The company offers evidence to show that its citations are
only average in the industry (Exhibits R30v R3lu R32u R33u R37,
R38)o
I agree the evidence does show Mid-Continentus proportional increase in S & S violations generally corresponds to
the national increase in the years 1983 through 1986.
It is,
however, still disturbing that the operator's S & S violations
continue to increase from year to year.
The operator was negligent in view of the time interval that elapsed between when it
received the notice concerning Windedahlis status and when it
completed sampling dust at the new work locationo The record

l/

30 CoFoRo § 70ol00(a) which provides:
Each operator shall continuously maintain the average concentration of respirable dust in the mine atmosphere during
each shift to which each miner in the active workings of
each mine is exposed at or below 2.0 milligrams of respirable dust per cubic meter of air as measured with an
approved sampling device and in terms of an equivalent
concentration determined in accordance with § 70.206 (Approved sampling devices; equivalent concentrations).

2066

does not present any evidence concerning the operator's financial
condition. Therefore, in the absence of any facts to the
contrary, I conclude that the payment of a civil penalty as
provided hereafter is appropriate considering the size of the
operator and such penalty will not cause the company to discontinue in business. Buffalo Mining Co., 2 IBMA 226 (1973);
~ssociated Drilling, Inc., 3 IBMA 164 <1974); El Paso Rock
Quarries, Inc., 5 FMSHRC 1056 (1983). The gravity of the
violation is high since the violation is significant and
substantial.
I do not credit the operator with statutory good
faith since the five samples were not taken within the prescribed
period of time.
On balance, and in view of the statutory criteria, I
consider a penalty of $300 to be appropriate.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, the following conclusions
of law are entered:
1.

The Commission has jurisdiction to decide this case.

2.

Respondent violated 30 C.F.R. § 90.100.

3. Citation No. 9996024 should be affirmed and a civil
penalty assessed therefor.

ORDER
Based on the foregoing findings of fact and conclusions of
law I enter the following order:
Citation Noo 9996024 is affirmed and a penalty of $300 is
assessedo

Law Judge
Distribution~

James H. Barkleyv Esq.v Office of the Solicitoru U.S. Department
of Laboru 1585 Federal Building~ 1961 Stout Street, Denver~ CO
80294 (Certified Mail)
Edward Mulhall 8 Jr., Esq., Delaney & Balcomb, P.O. Drawer 790,
Glenwood Springs, CO 81602 (Certified Mail)
/bls
2067

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

DEC 8 1987
SECRETARY OF LABOR,
~INE SAFETY AND HEALTR
ADMINISTRATION (MSHA),
ON BEHALF OF
JOHN P. GRINDER,
Complainant

DISCRIMINATION PROCEEDING
Docket No. PENN 87-177-D
PITT CD 87-06

v.
KARL'S DRILLING CO., INC.,
Respondent
ORDER OF DISMISSAL
Before:

Judge Maurer

The Complainant, Secretary of Labor, with the consent of
the individual complainant, John P. Grinder, requests approval
to withdraw his complaint in the captioned case on the grounds
that the parties have reached a mutually agreeable settlement.
Under the circumstances herein, permission to withdraw is
granted.
29 C.F.R. § 2700.11. The case is therefore dismissed .

. AJ,,~

ituJCY" ~

lr:-ative Law Judge

Distribution:
Covette Rooney, Esq., Office of the Solicitor, u. S. Department
of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified
Mail)
Ralph L. S. Montana, Esq., RD #3, Box 122, Clarion, PA
(Certified Mail)

2068

yh

16214

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

DEC9 1987
CIVIL PENALTY PROCEEbING

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

Docket No. PENN 87-50
~.c. No. 36-02405-03658

v.
Greenwich Collieries No. 1
ROCHESTER & PITTSBURGH COAL
COMPANY 1
Respondent
DECISION
Appearances:

Linda M. Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Joseph Yuhas and Joseph T. Kosek, Esqs.,
Greenwich Collieries, Ebensburg, Pennsylvania,
for the Respondent.

Before:

Judge Koutras
Statement of the case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977u 30 U.S.C.
§ 820(a)v seeking a civil penalty assessment of $650, for an
alleged violation of mandatory safety standard 30 C.F.R.
§ 75.316, as stated in a section 104(d)(2) Order No. 2690667,
sued on August 5, 1986. The respondent filed a timely
answer and contest and a hearing was held in Indiana 1
Pennsylvania.
The parties filed posthearing briefs, and I
have considered the arguments made in the course of my adjudication of this case.
Issues
The issues presented in these proceedings are as follows:
1. Whether the respondent violated the
cited mandatory safety.standard, and if so,

2069

the appropriate civil penalty to be assessed
for the violation based on the criteria found
in section llO(i) of the Act.
2. Whether the inspector's "significant
and substantial" CS&S) findings concerning the
violation are supportable.
3. Additional issues raised by the parties in this proceeding are identified and
disposed of in the course of this decision.
Applicable Statutory and Regulatory Provisions

1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164v 30 U.S.C. § 801 et seq.

u.s.c. § 820(i).

2.

Section llO(i) of the 1977 Act, 30

3.

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

Stipulations
The parties stipulated to the following (Tr. 6-7):
1. The respondent is subject to the
jurisdiction of the Commission and the presiding Administrative Law Judge.
2. The section 104(a) citation in question, as modified to a section 104(d)(2) order,
was duly served on the respondent by an authorized representative of the Secretary of Labor.

3. The size of the respondent company is
8v580,078 tons of coal producedv or man-hours
worked and the size of the subject mine is
565,108 production tons of coal.
4. The respondent's history of prior
violations consists of 168 violations for the
8-month period preceding the issuance of the
violation in issue.

50 The proposed civil penalty assessment
will not affect the respondent 1 s ability to
continue in business.

2070

6. The violation was abated by the
respondent in good faith within the time fixed
by the inspectoro

7. At the time of the issuance of the
modified order respondent's Greenwich No. 1
Mine was on "a (d) Chain, and there had been
no intervening clean inspections to remove
them from the Cd) chain."
8. The applicable ventilation plan for
the Greenwich No. 1 Mine, Review Number 28,
was in effect at the time of the issuance of
the violation in issue.
Discussion
The inspector initially issued a section 104(a) "S&S
Citation No. 2690667, on August 4 1 1986, alleging a violation
of 30 C.F.R. § 750316, and the violative condition or practice
is stated as follows:
The approved ventilation and methane and
dust-control plan was not being complied with
in the D-5 active working section in that the
section is on full retreat mining and the operator does not have an approved ventilation
plan showing the ventilation system for retreat
mining in this area.
The inspector modified the citation on August 8, 1986,
to a section 104Cd)(2} order, to reflect the correct date of
issue as August 5 1 1986, and the justification for tb"'! modification states as follows~
Noo 2690667 is being modified based on the
fact that when the condition was observed and
a discussion held with mine management, James
Kukura, General Manager, stated pillaring had
been done in the area for several months with
on-going inspections by MSHA and no one questioned the need of a ventilation plan so therefore using this in the thought process for
determining negligence it was determined to be
moderate" However 1 after telephone conversations with Willia'' Onuscheck 1 company ventilation engineer, and review of the ventilation
plan, it is appare1. t to this writer that the
company did have an approved ventilation plan

2071

for pillar mining prior to the date of issuance for the D-5 area. However, the system of
mining changed, thus necessitating a need for
a new ventilation plan, and MSHA inspectors
had not been in this area prior to this
writer 1 s observations of the violation.
Petitioner's Testimony and Evidence
MSHA Inspector and Ventilation Specialist Samuel J.
Brunatti, testified as to his experience, training, and
duties, which include the review of underground mine ventilation plans to insure that the system of mining coincides with
the approved plans. He confirmed that he issued the citation,
as modified to an order, during the cou~se of a ventilation
technical inspection of the mine, (exhibit G-1).
He also confirmed that ventilation plan Review 28 was in effect at the
time of his inspection, and he stated that he was "fairly
familiar" with that plan at the time of the inspection <Tr.
9-13).
Mr. Brunatti stated that ,he issued the violation after
observing retreat mi~ing in the D-5 working section where
pillars had been extracted on the return side while driving
the section in, and rooms were being driven to the left side
off the intake side and pillars were being extracted "the
whole way across, creating a solid gob." Mr. Brunatti
observed that one row of pillars had been extracted, and "they
were on the second row" (Tr. 21). He issued the violation
because the respondent did not have an approved ventilation
face print covering the type of mining which was taking place,
and he confirmed this when he reviewed the ventilation plans
and prints (Tr. 14).
Mr. Brunatti confirmed that the inspection took place on
August 5" 1986u and that his reference to August 4th was a
mistake (Tro 13)0
He identified a copy of his inspection
notes of August 5th, which reflect that "Gob air was coming
into the section in return entryy" and he confirmed that he
made this observation on August 5th.
He stated that no ventilation plan was available to show this ventilation, and that
the approved plans are required to show how the section is to
be ventilated, with appropriate ventilation controls to
assure a positive pressure on the gob to keep methane gas
going away from, rather than back into, the active sectiono
None of the plans which he had reviewed showed how the gob
area was to be vantilated in the D-5 section (Tr. 19).

2072

Mr. Brunatti stated that while underground at the time
he issued the citation, respondent's safety inspector escort
Joseph Desalvo advised him that a plan was in effect for the
mining which was taking place. When they arrived on the
surface, mine superintendent Lowmaster and general mine
manager James Cocora advised Mr. Brunatti that another MSHA
inspector had previously been in the same D-5 section area
which was cited and that the same type of mining was taking
place. Based on this information, Mr:· Brunatti issued a
section 104{a) citation with a "moderate" negligence finding
because "I felt that if one of our inspectors didn't observe
it to be a violation, I didn't feel maybe the company did"
(Tr. 20) •
Mr. Brunatti stated that after issuing the citation, he
spoke with the inspector who had been in the area previously
and learned that pillar mining was taking place at that time
on the return side only, and that the left or intake side had
not as yet been developed or pillared. Mr. Brunatti stated
further that he also spoke with respondent's ventilation
engineer William Onuscheck by telephone, and Mr. Onuscheck
led him to believe that there was some miscommunication
between his off ice an:a mine management in that the mine ventilation plans that had been submitted did not correspond to
the type of mining taking place in the D-5 area on August 5.
Mr" Brunatti stated that he was left with the impression that
the respondent had submitted a ventilation plan for review
without mine management at the mine level being aware of it,
and he came to this conclusion because of statements made by
Mr. Lowmaster and Mr. Cocora that they had never seen the
plan even though it was the one in effect at that time, and
they "were stunned" that it was the plan which was in effect.
Mr. Onuscheck assured Mr. Brunatti that he would submit a
plan to correspond with the mining taking place to MSHA's
Pittsburgh Office for approval (Tr. 20-26).
Mr" Brunatti stated that based on the aforesaid conversaons with mine management, including Mr. Onuscheck, he concluded that the respondent submitted face prints as part of
the mine ventilation plan without management at the mine level
ing aware of it, and that the plan submitted did not correspond with the type of mining that he observed going on.
Mr. Brunatti also stated that when he first showed mine management the plan which was in effect, he felt that they realized
that they needed a plan for the mine area other than the one
which had been submitted as cart of Review No. 28.
Mr" Brunatti did not believe~that Review No. 28 pertained to
the area being mined (Tr. 28). Mr. Brunatti believed that
the respondent knew that it was required to submit new face

2073

prints when it changed its system of mining, and as an
example of this, he identified a copy of Review 27, which had
previously been submitted to show how the return and intake
pillars and gob would be ventilated (Tr. 29-30; exhibit G-3}.

Mr. Brunatti identified exhibit G-4v as a copy of the
ventilation plan addendum made a part of Review 28, as submitted by the respondent to MSHA to abate the violation, and
he explained the map shown on page three of the plan (Tr.
31-34). Mr. Brunatti confirmed that a mine operator may at
times use the same ventilation face print to cover different
mine entries or sections if every section and entry uses identical ventilation systems. However, this was not the case
when the violation was issued, and any time changes occur in
the ventilation system or direction of uirflow, an operator
is required to submit an addendum to the ventilation plan to
the district manager before making any changes <Tr. 38-39).
Mr. Brunatti explained the meaning of "mirror image" ventilation plans, and confirmed that it did not apply in this case
because "they took rooms and pillared off the return side and
also drove rooms and pillars off the intake side," and th~
respondent had no app~oved plan for mining off both sides
(Tr. 40 ) •
In response to further questions, Mr. Brunatti confirmed
that the essence of the violation lies in the fact that the
respondent was in full retreat mining and had no ventilation
plan to cover full retreat mining both left and right, left
off the intake, right off the return, and pulling everything
solid across (Tr. 41-42). He confirmed that the section was
not being ventilated properly because the air going out of
the gob was coming back on the return sid8 of the section
(Tr" 45). He explained the change in the mining system which
prompted him to issue the citation for not having submitted a
new ventilation plan to cover that change as follows (Tr.
49-50) ~

THE WITNESS~ Originally they had a plan
approved, as they were driving the entries
they drove rooms to the right off the return
side and pillared those1 and they did that.
When they advanced the section to its limit,
then they started driving rooms left off the
intake and pulling pillars and connecting that
gob on the return side; that 1 s when it necessitated the change. Not a change so much as a
new plan.

2074

JUDGE KOUTRAS: And since they had this prior
plan, that led you to believe that they had
prior knowledge that they were required to
submit a new plan when they went to a different system of mining, is that correct?
THE WITNESS: Yes. On previous ventilation
reviews, they have submitted those plans.
On cross-examination, Mr. Brunatti confirmed that he
believed the violation was "significant and substantial"
because the section was not being properly ventilated in that
air was coming out of the gob back into the section in the
number 3 entry which was a return, and he could feel the air
(Tr. 59). He agreed that the gob air is supposed to go into
a return, but that "the pressure ts tb be from the section
through the gob to the return, not the pressure from the gob
through the gob back into the return" (Tr. 57). He could not
recall taking any smoke tests, but he did take methane readings at various locations in the section, but found no excessive levels. The highest methane reading on the section was
.2 percent, and he _agreed that methane was not a problem on
the day of his irr§pection (Tr. 57-58).
Mr. Brunatti confirmed that the system of mining he
observed taking place on August 5, 1986, in the D-5 section
was retreat mining in which rooms were originally driven up
and pillared on the return side, and he agreed that the
respondent had a plan for this. However, after reaching the
limits of the mined entries, rooms were driven to the left
off the intake side, and pillars were being extracted, thus
creating one gob from the intake side to the return side.
Mr. Brunatti believed that retreat mining and pillar mining
are interchangeable terms. He agreed that the respondent had
an approved plan to pillar the right return side, but did not
have a plan to drive the rooms off the left intake side to
extract the pillars off the solid back to the other gob.
In
his view, when mining moved from the right side, which had
been pillared, to the left side, the system of mining was
changed from mining rooms off the return side to the system
mining rooms off the intake side, and the system of ventilation was also changed. Since there was no plan drawing to
cover these changes, Mr. Brunatti believed that a violation
of section 75.316 occurred. He also alluded to the criteria
for ventilation plan approval found in section 75.316-1, and
confirmed that the essence of the violation lies in the fact
that the respondent changed its mining system and failed to
submit a ventilation plan to correspond with that change (Tr.
59-66).

2075

Mr. Brunatti stated that when he discussed the citation
with Mr. Lowrnaster and Mr. Cocora outside the mine, they went
through the ventilation plans and tried to find a drawing for
the D-5 section, and they admitted that they had no plan to
cover the area in question (Tr. 73). Mr. Brunatti identified
exhibit R-2 as a face ventilation plan, and confirmed that it
was a part of ventilation plan Review 28 which was in effect
at the time the citation was issued. 'He described what is
depicted in that plan as "a working section completely separated and isolated from a gob on the right side by permanent
stoppings and pillar mining being done on the left off the
intake side, not connecting the gobs, but leaving a separation by the use of permanent stoppings and bradishes" (Tr.
74)
He elaborated further by stating -that "The area on the
right side of that section had been pillared out at one time
and now has been separated by permanent stoppings. In
essence you 1 ve created, you have two gobs there" (Tr. 75).
Mr. Brunatti totally disagreed that exhibit R-2 depicts
the system of mining and ventilation in use at the time of his
inspection, and confirmed that what he observed is what is
depicted in exhibit G-4, p§. 3, the plan which was submitted
to abate the violation (Tr. 77)" Mr. Brunatti stated that he
could not specifically recall whether Mr. Lowmaster,
Mr. Desalvo, or Mr. Cocora produced exhibit R-2 during their
discussions, and he believed "they were just grabbing for
straws for something that they thought would cover" what they
were doing. Even if they had produced exhibit R-2,
Mro Brunatti still believed it did not cover what was going
on in the D-5 section (Tr. 79). Mr. Brunatti stated that no
one can tell from exhibit R-2 when the pillars on the right
and left side were pulled, and that is why it does not pertain to the system of mining taking place. He also indicated
that the print shows two gobs being totally separated with
permanent stoppings and with blocks of coal left in~ while the
system of mining actual
taking place on August 5, on the D-5
section.was not leaving a row of coal blocks or stoppings (Tr.
0) c

Mr. Brunatti further explained the differences between
the ventilation system he observed on
t 5
and what is
icted on exhibit R-2, and pointed out that one of the difrences was that no permanent separation was being maintained
between the two gob areas as it is depicted on the print (Tr"
85-89 . He also explained what he considered to be major difR-2 and G-4 (Tr. 95-101; 104-106).

2076

Mr. Brunatti confirmed that the respondent could continue
to use the face print used to abate the violation, exhibit
G-4, pg. 3, if they start mining elsewhere as long as the same
system of mining is used. He explained the meaning of "same
system" as follows (Tr. 103):
THE WITNESS: If they're just going to drive
entries up and room and pillar to the right
side or the return side, that would be a
one-face print for that, just showing that,
how they'll ventilate that section plus assure
positive pressure from the section to the gob.
Now, if they want to go up and do that and
then pull pillars coming back out~ then they
need a
print to show not only how they'll
ventilate the section, but also how they'll
assure ventilation to that gob to keep the air
off the section from the gob air.
Mr. Brunatti explained further that in order for plan
print R-2 to be effective, once pillaring started on the left
side, a row of permanent stoppings must be in place to prevent
the air from the right side from coming into the left. There
was no way this could have been done on August 5, because
pillaring was taking place across the section without leaving
any separation, and any variation in the prints would require
prior MSHA approval because the system of ventilation was
changed and the plan is supposed to reflect the system of mining as well as the system of ventilation being incorporated
(Tr. 106-107). Mr. Brunatti confirmed that prints R-1 and
R-2, both reflect the same system of mining, namely, retreat
pillar miningo Howeverv the conditions which prevailed on
August 5 were different from those reflected in R-2 (Tro
109)0

MSHA Inspector and Ventilation Specialist Richard Zilkaf
testified as to his experience and duties, which include the
review of all mine ventilation plans in MSHA District No. 2.
He confirmed
he holds a
in mining engineering
from the Un
He stated that he reviews
all addendums
plans which are required to
be submi
every 6 months, including changes in ventilation,
and he
ined the procedures
this review (Tro 118-122).
Mr. Zi

stated that his review of venti
ion prints
t differences in the manner
in which
two gobs are
ing ventilatedv and that it would
require a change or an addendum to be mining as the two

R-2 and R-1 indicates signif

2077

prints indicate. Assuming that print R-1 accurately reflects
what was taking place on August 5, print R-2 would not as a
matter of policy in his district be an acceptable face print
to cover that situation (Tr. 123). In explaining the respondent's plan "variations" provided for in R-3, Mr. Zilka
stated as follows CTr9 124-126):
A. The variations that they're talking about
would be considering, if you have a five-entry
system you submit one plan that shows yo~
mining say, Number 1 Entry, and the Number 2,
3, 4 Entries, how the back checks are set up
so it's ventilated while they're mining the
Number 1 Entry.
Variations is that we wouldn't require
them to show how Number 2 Entry's being mined,
Number 3 Entry and Number 4, repetitive.
These are variations. we don't require that.
One face print would suffice for that.
Q. The diffe~ences that you have noted, and I
think you stated it as mainly the permanent
stopping between R-2, that is shown on R-2 and
the abatement plan that is shown on Government
Exhibit 4; are you following me?

A.

Yes.

Q. Would that be the kind of variation that
the company could do by themselves?
A. Not according to District policyf it would
not be acceptedo
Q. Now, you talk about District policy. Do
you have reason to believe that Greenwich
Number 1 Mine or R & P Coal Company is
familiar with District policy?

Yeso On numerous occasions? the situation
of how face printsv what are to be on face
prints and addendums to them to be submitted
have been discussed with R & P personnel on
numerous occasions.

Ao

Q.
Have you had such discussions with R & P
personnel?

2078

A.

Yes.

Q. Have you had such discussions prior to the
time that this citation order was issued in
August of 1986?
A.

Yes.

Mr. Zilka stated that based on h~s conversations with
respondent's personnel, they should have been aware of the
fact that print R-2 was unacceptable for what was going on in
the section on August 5. He explained that the system for
ventilating the gob should be marked down accurately to assure
that there is no chance of gob air containing high methane or
black damp coming back on the miners. He indicated that one
of the primary differences between prints R-2 and R-1 is the
differences between how one ventilates two gobs separately as
opposed to ventilating one gob (Tr. 128).
Mr. Zilka identified exhibit G-5 as 1983 cover letters
concerning an ove.ra-11 packet of ventilation plans submitt~d to
MSHA's District Office by the respondent covering all of its
mines.
Included in the packet were the specific plans for
each mine which were submitted every 6 months. However, the
respondent was still required to submit new plan addendums
when changes in the system of mining and ventilation occurred,
and this is reflected in the correspondence (Tr. 129-132).
In
response to further questions, Mr. Zilka stated (Tr. 132-134):

Q. Let 1 s assume that a company is using
pillar mining on one side and pillar mining on
the other side of an entry. And let's assume
that they are always pillar mining but that
their system of ventilation changes from one
side to the othero
Does not
or would they
750316 not to
other side of

the District Office, would they
not consider it a violation of
submit a face print for the
the entry?

A.
Absolutely; Just because youvre pillar
mining does not mean that your face ventilation plan is exactly the same every time,
especially if you're pillaring, if you're
driving entries and you're mining on the right
and pulling those pillars on the right side or
pillaring on the left side; you could change
the ventilation, you could be taking the air

2079

up on the right side and dumping it or when
you're mining on the left you could still be
doing the same thing but in--.
It would be
different, let me assure you.

Q. When you say it would be different, what
would be different?

A.

The face ventilation system,·how you're
ventilating the gob area, either to the left
or the right of you.

Q. And under 75.316, would a company be
required to submit a face print for that next
section?
A.

Yes.

Q. Even if they were using pillar mining in
both sections?
A. Even if they're using pillar mining.
If
they're using a different ventilation system,
the way they're setting it up and ventilating
the gobs, they would have to submit a new
plan.
Mr. Zilka confirmed that in an effort to reduce the
amount of paperwork being submitted by the respondent with
respect to its ventilation plans, the respondent was
requested to eliminate those face prints which were not being
used and to submit them at the time they intended to use them
(Tr. 136). Mr. Zilka stated that he has "briefly looked at~
plan Review 28v and based on the conditions cited by
Inspector Brunatti as a violation in this casev he could find
no face print which would correspond to the ventilation which
existed on August Su 1986 (Tro 138), Mro Zilka agreed that
Mr. Brunatti 1 s order was in compliance with MSHA district
policy, and he confirmed that as a matter of policy, the mine
ventilation system is considered to be a part of the mining
systemr and that the respondent is aware of this (Tr.
139-142)0
On cross-examinationr Mro Zilka confirmed that regardless of the same mining system being followed in a mine,
ventilation systems vary even though the mining system may
stay consistent. Prints R-2 and R-1 reflect plans for ventilating two separate gobs, and he believed that both have been
approved by the district manager <Tr. 143-146). A "typical"

2080

face plan is one that shows how the face area is being ventilated, and if there is any deviation from that plan, another
plan has to be submitted for approval (Tr. 154).
Mr. Zilka was of the opinion that the respondent could
not use face print R-2 as a typical print for the conditions
observed by Mr. Brunatti, and as shown in print R-1, because
the two prints contain different ventilation systems (Tr.
161). Mr. Zilka confirmed that his understanding of the
violation is that Mr. Brunatti found the respondent in full
retreat pillar mining on August 5th with no ventilation plan
to cover what was going on (Tr. 169). Face print R-2, would
not apply because it shows a different system of ventilation
with two gob areas separated by a stopping going all the way
up to the face (Tr. 179).
In response to further questions, Mr. Zilka confirmed
that he did not discuss face print R-2 with the respondent,
but has discussed similar prints and changes that may occur.
He discussed the matter with Mr. Onuscheck after the violation was issued and advised him that face prints could not be
mixed, and that print-R-2 was not acceptable in a situation
where one is pillar mining on the right side and then goes
over to the left side and starts pillaring and pulling back
(Tr. 183-184).
Respondent's Testimony and Evidence
Joseph N. Desalvo, testified as to his background and
experience, and confirmed that he is employed by the respondent as a safety inspector. He holds a B.S. degree in education from Indiana, Pennsylvania University. He confirmed
that he accompanied Inspector Brunatti during his inspection
on August 5p 19860 He identified print R-1, which is identical to G-4f as a diagram
how the D-5 section looked on the
the inspectionv and he described what he and
Mro Brunatti did by reference to an enlarged copy of R-1 (Tr.
186 91)0

Mr" Desalvo confirmed that face print R-1 depicts the
system of mining and the system of ventilation on the D-5
section on the day of
inspection, and he stated that the
pr
was submitted
ter Mr. Brunatti issued the violation,
and it was approved at that time as part of the ventilation
plan (Tro 192)0 Mro DeSalvo stated that whi
underground,
he advised Mro Brunatti of his view that the manner in which
the gob was being venti ted "was the best possible way that
it could be ventilated," and that Mr. Brunatti agreed with
him (Tr. 193)0 They then went to the surface and discussed

2081

the matter with superintendent Lowmaster and division manager
Cocora. Upon review of the face prints contained in plan
Review 28, management came to the conclusion that face print
R-2 reflected what was taking place in the D-5 section, and
this opinion was conveyed to Mr. Brunatti, but he disagreed
(Tr. 194-195).
On cross-examination, Mr. Desalvo confirmed that
Mr. Brunatti reviewed the face prints~produced by mine management before issuing the citation, and that the "whole packet"
of prints was reviewed. However, management concluded that
R-2 "applied the best" (Tr. 197). When asked why management
would not specifically know which face print applied, rather
than going over the entire package to find one which may have
applied, Mr. Desalvo responded "I don'~ really specialize in
those plans, neither do people like Mr. Lowmaster.
* * * that
particular day we did try, to contact the ventilation engineer
at the mine, and he was unavailable for certain reasons, but
we were not the specialists in ventilationn (Tr. 197).
Mr. Desalvo confirmed that prior to the group discussion concerning the prints, he had not. seen Review 28 (Tr. 198). ,When
asked whether Mr. Lowmaster was surprised concerning the
prints in Review 28 ,· Mr. Desalvo responded "in the past we had
submitted more specific drawings, and I think that may have
been a bit of surprise to Mr. Lowmaster, but I don't think the
packet itself" (Tr. 199). When asked why the respondent
stopped submitting more specific prints, Mr. Desalvo responded
"I really don't get involved in that end of it" (Tr. 199).
Mr. DeSalvo conceded that face print R-2 is less s~ecific
than prints submitted in the past, and it does not specify
that it is a drawing for the D-5 section.
In response to
further questions, Mr. Desalvo stated as follows (Tro 199-200}:
Isn"t it true that Mr" Lowmaster said when
you came up above ground to Sam that the
prints .didn 1 t match their mining syst~m that
was going on at the time?
Qo

A.
I remember Mr" Lowmaster saying something
similar to that, but I'm sure, the context
that I took what Mro Lowmaster was saying in
was I believe at that time the oacket contained somewhere around 20 or 2S prints, and
we were operating five sections.
So, many of
the prints really didn't apply to the number
of sections that we had.

2082

Q. Do you have any idea from the conversations
that were going on between Sam and Mr. Lowmaster
at the mine, whether Mr. Lowmaster had indicated
that he had ever seen Review 28 before, the
prints in Review 28?

A.

I don't honestly recall Mr. Lowmaster
saying that, but then I wasn't in the room all
the time.

Mr. Desalvo confirmed that all of the blocks of coal
shown across the top of the section on R-1 had been pillared
and mined at the time of the inspection, and that the area to
the right side of the print was a mined-out gob area, but
there was no separation between the two- gob areas (Tr.
202-203). Mr. Desalvo stated that there was "very little
difference" between prints R-1 and R-2, and that R-2 "is
close enough" to what was going on in the D-5 section (Tr.
205-206). He then stated that there are definitely differences, and though he is not,a ventilation specialist, his
understanding as a rrriner of the basic ventilation of a mine
indicates to him that the ventilation shown in R-1 and R-2 is
the same (Tr. 206). Mr. Desalvo confirmed that while the
stoppings shown on R-2 are needed, he could not explain why
because he did not participate in the drafting of that print
(Tro 210). Although the prints look the same, he was not
sure why the coal blocks shown in R-2 were left as shown, but
agreed that if mining continued in the same area they would
eventually be pulled (Tr. 211).
Mro Desalvo confirmed that the respondent has previously
been cited for ventilation plan violations under circumstances
similar to those in the instant case, but he could not recall
the details of those prior citations. He recalled one citation issued by Mro Brunatti subsequent to the one issued in
this case for failing to change a plan or submit a print (Tr.
212-213)0
William Onuscheckv respondent 1 s Ventilation Engineerv
testified as to his education 0 ventilation training 0 and
experience" He confirmed that plan Review 28 contains typical rather than specific face plans, and confirmed that the
respondent does not submit specific ventilation plans pertaining to the ventilation employed on any particular mine section o He stated that at one time, the respondent submitted
specific plans to MSHA, but this became cumbersomeo He identified exhibit R-5, which was not offered and received as
part of the record in this case, as a "binder" containing
ventilation plans which was submitted to MSHA's district

2083

office on May 10, 1983. The exchange of correspondence concerning this binder is reflected in exhibit G-5. The binder
contained an accumulation of all previously submitted and
approved face prints (Tr. 214-221).
Mr. Onuscheck explained that the prior procedure of submitting specific face plans to be added to the binder resulted
in practical paperwork problems and delays in having plans
approved. As a consequence, he met wlth MSHA's District
Manager Huntley, and they worked out a different system for
submitting ventilation plans, namely the submission of "typical plans." Subsequent meetings with Mr. Emil Piontek,
Mr. Zilka's co-worker in MSHA's ventilation department,
resulted in the formulation of a typical packet of face ventilation plans covering the driving of entries, rooms, stumping,
driving rooms and entries with multiple splits, and advance
and retreat stumping of rooms. All of these typical plans are
incorporated as part of Review 28, and there are 20 such
plans, one of which is R-2 {Tr. 221-222). Mr. Onuscheck identified a copy of a letter dated December 12, 1984, addressed
to Mr. Huntley, submitting two packets of typical face ventilation plans used in th~ respondent's mines (Tr. 224). Plan R-2
was among the packet·s submitted, and it was also submitted as
part of Review 28 for the Greenwich No. l Mine in February,
1986, and subsequently approved by MSHA on June 4, 1986 (Tr.
225).

MSHA's counsel disputed any assertion or inference that
MSHA accepted the binder as the respondent's ventilation plan.
Counsel asserted .that the binder was simply acknowledged as
part of the effort to cut down on paperwork, but that MSHA
made it clear to the respondent that specific face ventilation plans needed to be submitted and "it never was acceptable to the district office that you just submit a general
plan and then go do whatever you want as a variation of that
planun (Tro 227)0 Mr. Onuscheck further explained as follows
(Tro 229-230)~
THE WITNESS: Yes, and I don't want to give
you a false impression, even with the binder
there were times when we would be mining, even
~ith all those plans, we still wouldnut have a
plan incorporated into the binder for the type
of mining we were doing.
JUDGE

KOUTRAS~

That's right, what would you

do then?

2084

THE WITNESS:
submitting.
JUDGE KOUTRAS:

So we would have to keep on
Submitting?

THE WITNESS:

Yes, so if we kept on, at this
point our binder would, we'd probably have
four of those by now. Which, at which point,
we went to the typical, 20 typicals instead of
the binder.

MSHA's counsel confirmed that while the binder was not
acceptable to MSHA's District office, the "typical packets"
were acceptable. However, if there is a change in the mining
or ventilation systems, a new plan would still have to be
submitted. Counsel explained the meaning of a "typical plan"
as follows (Tr. 234-235):

MS. HENRY~ Your Honor, I think it's been well
established by Mr. Zilka's testimony, that he
informed R & P representatives of this numerous times, of what MSHA 1 s 'def ini ti on of what
typical was ..
JUDGE KOU'rRAS:

Which was?

MS. HENRY: That typical means you can use a
plan, and let's say you're driving up one
entry, you use that plan.
I want to make sure
I'm getting this right. You start going up
the second entry and it's the same thing, you
may use that plan again.

Or if you 1 re pillaring out one block, you
have particular plansu and you go to pillar
the next blockr you can use that plan.

It doesn't mean that in situations were
you create a gob where no gob was before you
can use that plan.
JUDGE KOUTRAS: Well let me ask you this:
Is
the bone of contention here that on the one
hand Mr. Brunatti believes there were two separate1 distinct gob areas on August the 5th -MS. HENRY:
No, you have it reversed. There
are two separate, distinct gob areas shown on
the face print that they tried to pass off.

2085

JUDGE KOUTRAS: On the face print, but they
didn't have two separate -MS. HENRY:
gob

They didn't have two separate
They just had on~?

JUDGE KOUTRAS:
MS. HENRY:

Right.

JUDGE KOUTRAS:
that?

MS. HENRY:

They didn't have a sketch for

Right.

JUDGE KOUTRAS:
MS. HENRY:

And that's the violation?

That's it in a nutshell.

And, at (Tr. 238-241):

*

*

*

*

*

*

JUDGE KOUTRAS: Couldn't the conditions change
from day-to-day?
MS. HENRY: These conditions had changed,
obviously small conditions could change from
day-to-day, but the act of creating one gob
and going over to the intake section and mining the intake section is the kind of, as
there was testimony, is a kind of major variationu a kind of major change that requires a
new face print.

*

*

MS. HENRY:

A typical plan. We're saying that
Greenwich has, and R & P has been informed,
itus not like they 0 re left out there to dry in
the wind -JUDGE KOU'rRAS ~

Informed of what?

MSo HENRY~
about what typical means.
They 1 ve been told that.

JUDGE KOUTRAS:

Well, what does it mean?

2086

MS. HENRY:
It means that if you, on certain
limited circumstances such as mining
entry-by-entry or block-by-block

JUDGE

KOUTRAS~

Right.

MS. HENRY:
you can use the same plan without submitting a new one. It do'es not mean
that if you go from the return side of the
entry to the intake side of the entry and
start mining there that you can use the print
that they were claiming applied.
Mr. Onuscheck stated that sinpe the submission of the
typical plans, and prior to the respondent's dealings with
MSHA's Hastings field office, the respondent has mined
approximately 15 million tons of coal, and no one has ever
questioned the use of the typical face plans even though
various mining methods were used. He indicated that in the
year and a half prior to the issuance of the citation by '
Mr. Brunatti, the use of typical face plans was not an issue.
He believed that the Hastings field off ice was unfamiliar
with the use of th~typical face plans, but since the
district manager accepted them, he further believed that the
respondent has complied with the requirements of section
75. 316 (Tr. 241-242)
o

Mr. Onuscheck confirmed that face print R-2 is the plan
that was submitted by the respondent when it submitted its
original typical plans, as well as later when it submitted
Review 28 for the No. l Mine. He identified print R-1 as the
plan submitted to abate the violation issued by Mr. Brunatti.
He described the similarities and differences in the two
plans, and while he conceded that there are differences in
the manner in which the gob is being ventilated, he did not
believe that they are significant (Tro 254-256). He confirmed
that R-2 depicts what was going on on the D-5 section in terms
of pillar mining and ventilation at the time the violation was
issued (Tro 257)0

On cross-examination, Mr. Onuscheck stated that once a
typical plan is filed and approved by MSHA, the vehtilation
direction could be changed without notifying MSHA or submitting another plan, because to do otherwise would require a
new plan every day or every hour.
He dij not believe that
finishing one gob on one side of the entry and starting
another gob on the other side is important enough to require
the submission 'of a new plan (Tr. 259)"
He confirmed that

during his conversation with Mr. Brunatti, they discussed
"typical" plans as compared to "specific" plans, and that
when he asked Mr. Brunatti why he issued the citation,
Mr. Brunatti responded that there was no plan explaining
exactly what was going on in the D-5 section {Tr. 261).
Mr. Onuscheck stated that he believed he was complying with a
variation of plan R-2, but not the exact plan, and that
Mr. Brunatti insisted that he was not complying with "an
exact replica of what we were doing ... ·· In order to do this,
up-to-date maps, rather than plans would have to be submitted,
and this was done to abate the violation (Tr. 262).
Mr. Onuscheck confirmed that R-2 11 is close to" what was going
on in the D-5 section when the citation was issued (Tr. 263).
Mr. Onuscheck confirmed that face·print R-2 was not submitted to abate the violation, even though it had previously
been accepted by the district office, and represented what
was going on in the D-5 section, because he believed an order
may have been issued by Mr. Brunatti. Rather than argue
about it, and to achieve abatement as fast as possible, "it
was simple just to make up a plan and send it in to abate, the
violation" (Tr. 279). Mr. Onuscheck confirmed that the plan binder previously
referred to consisted of previously submitted and approved
face plans, and that it was put together as a matter of convenience for the district office and "we just listed them and
instead of sending down 40 face prints for whatever mine it
was, we just listed the numbers" (Tr. 282). Mr. Onuscheck
confirmed that prior to Mr. Brunatti's citation, pillars had
been pulled and extracted utilizing print R-2. With regard
to the prior submissions of the typical plans, he stated as
follows (Tro 284-286)~
So it's true, then, that those plans that
you drew up were not specific for Greenwich
Mine; in factv when you drew them up you
didn 1 t even have Greenwich in Qind since
Greenwich is not under R & P's direction?
Q"

Righto At the time we didnut have
Greenwich in mindo When we took over, and we
made studies of the Greenwich Mine prior to
taking over, we spent, oh, I 1 d say a month up
therev a good month going over their plans and
how they mined and everythingo

Ao

ours.

Their type of mining was very similar to
We tailored a typical plan and added

2088

two other face plans to our typical. In addition to the typical we added two other plans,
because mine management said that, you know,
these, we want to put them in with your
typicals.

Q. Were you mining D-5 at the time, Section
D-5?
A.

When we started managing; no.

Q. Mr. Onuscheck, do you understand that the
use of a typical
ce plan has been established by the testimony from Mr. Zilka, means
only mining from entry-to-entry or from
block-to-block, that it does not cover a situation where you go over from an intake side to
a return side?
A. No, ma'am. Without'hearing his testimony
I don't agree that it's just, how did you say,
adding an entry?

Q. Yes, either adding an entry or going from
block-to-block, those are the only cases in
which you coald use a typical plan?
A. No, we take the opinion that we, you can
vary a lot more than just that.
Q. But hasn't MSHA told you that you can't
vary a lot more than that, that that's the
only variance you can have under typical
plans?
A. We hear a lot of things from MSHA, ma 1 am,
I don't know if they've ever said, specified
how
r you can go.
Q. Has MSHA ever told you that youQre varying
too much on the typical plans, that you can't
va
as much on your typical plans?
Prior to Samis violation, I don't think
they did. Now, recently, they have been questioning the face plans, the typical face plans
quite a bit in the last couple of months, or
I'd say even the last half of year. But prior
to Sam 1 s violation, I don't believe they had.

Ao

2089

Michael Ondecko, stated that he is employed by the
respondent as a ventilation engineer, holds a B.S. degree in
mining engineering from the Penn State University, and he
testified as to his experience and duties.
He confirmed that
he and Mr. Onuscheck worked together in the preparation and
submission of plan Review 28, and the face print packet that
was part of that plan. Mr. Ondecko identified exhibit R-2 as
a page from the packet submitted with.. plan Review 28 that was
submitted and approved by MSHA.
R-1 is the addendU.m which
was sent in to abate the citation issued by Mr. Brunatti, and
R-2 is a face print which had previously been submitted and
approved, and it was in effect at the time the citation was
issued (Tr. 303-307).
Mr. Ondecko explained what he believed to be the similarities and differences in face prints R-1 and R-2, and he
stated that had Mr. Brunatti been on the section a week or
two prior to his inspection, he would not have observed as
much gob being extracted, and at that time the two prints
would have been very similar. He indicated that without the
extraction of the five stumps which he identified between the
No. 11 and No. 12 rooms on face print R-2, the two prints
would look the same .. / In his opinion, there was no need to
send in a new face print for the specific location because it
was already covered in print R-2.
He confirmed that the only
difference in the two prints is the amount of mining which is
taking place.
Otherwise, they would perhaps be identical
(Tr. 307-311).

In response to a question as to the ventilation directional arrows shown on R-1, indicating that return air was
going to the right, Mr. Ondecko stated as follows (Tr.

311-313):
Q. * * * And the question was if we show the
air going to the right 9 why do we think we can
move the
r in another direction.
Do you
have an answer for that question?
A.
Possibly to clarify thatv it is when these
face prints are sent in theyare to show
general face ventilation patternso
It's not
uncommon for some of our sections to have twop
three thousand feet of gob arear and itas not
uncommon for air to come out of a crosscut in
the opposite direction as shown on the map.

2090

But it does not, in any fact, say that
we're ventilating the gob any differently,
we're still pressurizing the gob and we're
loosing, when MSHA is looking at this plan,
they're looking at the general plan that may
show the ventilation pattern is going in the
same direction.
And we've had instances at out mines
where violations have been vacated because of
an air directional arrow in, say, one crosscut
out of eight was going in the wrong direction.
And Pittsburgh has said that you show the
basic ventilation pattern~ we can't hold you
down to every crosscut that has ventilation
coming out of that crosscut.
But there are certain situations where
gob will tighten up here, (indicating) and not
be as tight here to where you can only control
that gob with canvas checks and do the best
you can to pressurize your gob.
And in some cases you will have air flow
coming out in the opposite direction, but it
doesn't say that you're still not pressurizing
the system. Okay, the system is still functioning properly.
On cross-examination, Mr. Ondecko confirmed that he was
not at the mine when the citation was issued. He agreed that
the ventilation plan states that air flow must be maintained
over the gobs so that it is course away from the active working sectiono He indicated that there are times when all of
the air does not go away from the working section, and all
that is required to be shown on a plan is a general ventilation pattern (Tr. 313)0 Mr. Ondecko stated that it was possible that Mr. Zilka may have advised him that a ventilation
plan showing a double split of air could not be used as the
same plan for a single split of air, but he could not recall
such a conversation (Tro 314)0
Rebuttal Testimony
Inspector Brunatti testified that any "system of mining"
necessarily includes a "system of ventilation," and that the
two go hand-in-hand. In his view, the term "typical plan"
means one that is approved for a particular mine, and that

2091

section 75.316-2 makes it clear that a typical mining method
should correspond with a typical ventilation pattern on a
mine-by-mine basis (Tr. 316). He reiterated his disagreement
that face print R-2 could be used in mining across the stumps
shown in print R-1, and no ventilation controls are shown on
R-2 so as to control the air going to the gob being created
by mining across the area and taking out the Rtumps (Tr.
316-321). He confirmed that when he fapoke with Mr. Onuscheck
by phone, face print R-2 was not mentioned, and when he
advised Mr. Onuscheck that there was no print to correspond
with the mining taking place "he left me with the understanding he'd get one in and get it submitted" (Tr. 322).
Mr. Brunatti confirmed that even if Mr. Onuscheck had produced print R-2, he would have rejected it because it was
totally unrelated to the mining which was taking place (Tr.
323).
Referring to an enlarged diagram of face print R-1,
Mr. Brunatti stated that the ventilation controls are different from those on R-2, and he explained how he determined
that some of the air from the gob was leaking into the active
working section, and how the gob pressure was other than that
shown on R-2.
In hi.s 'view, had a proper face print been submitted, and the .ventilation controls shown therein been
followed, the air leakage problem would not have existed (Tr.
327-338).
Mr. Brunatti stated that at the time he discussed the
citation with mine management at the mine, he was shown several face prints, and while some of them may have closely
resembled the approved ventilation plan, none of them resembled the mining which was actually taking place. He denied
that he insisted on a face print depicting exactly what was
going onu and stated that he would have accepted any plan
that reasonably approximated what was going on, but he does
not consider R-2 to be such a reasonable approximation (Tr.
342-345). He confirmed that while district policy allows
reasonable variations in the ventilation methods shown on
face prints, if such variations affect the manner in which an
area is being ventilated, or if changes ara made in the direction of the air or in the system of miningu they would not be
permitted without another plan to cover these changes. In
the instant caseu the system of mining had changed on the day
of his inspection. Although a plan was approved to cover the
time when the three room entries were initially driven anu
pillared off the return side of the section, they had no plan
when they started across and began driving and pillaring
rooms on the intake side. Such a new face print was required

2092

to insure adequate ventilation over the intake gob area (Tr.
346>~

Mr. Zilka testified that face print R-1 represents a
ventilation system involving a double split of air, and he
indicated that "Mr. Ondecko and Mr. Onuscheck and every ventilation engineer in the district has been told and informed
since day one that a single split and a double split is
totally different and there is no wai.that you can go from a
single split to a double split without a ventilation change
which requires an addendum" (Tr. 348).
Inspector Brunatti
agreed with Mr. Zilka (Tr. 369).
Mr. Ondecko disagreed that face print R-1 reflects a
double split of air, and indicated that it is possible to
find at least five or six splits of air on the print (Tr.
373-375).
MSHA's Arguments
MSHA asserts that a violation of section 75.316 occurred
when Inspector Bruriatti observed retreat mining performed in
the D-5 section and the respondent did not have a face print
to show how to ventilate the mined-out right side while mining the left side. MSHA asserts that this is a change in the
"conditions and mining system" of the mine which requires
appropriate revisions in the ventilation plan, and such
changes include changes in the pattern of mining. To claim
otherwise, argues MSHA, would render section 75.316 almost
meaningless, for it would mean that operators need only submit changes in ventilation plans if they changed, for example,
from pillar mining to longwall mining.
MSHA further asserts that the respondent cannot def end
against the issuance of the citation by asserting collateral
estoppelu because MSHA, in the issuance of a citation or
order, is not bound by collateral estoppel. El Paso Rock
Quarries, 2 MSHC 1133 (1981), King Knob Coal Co., 2 MSHC
1371, 1375 Cl98l)u U.S. v. Browning, 630 F.2d 694 {10th Cir.
1980)0 MSHAv therefore, concludes that even if the respondentis arguments that they could institute variations in mining without corresponding face prints approval were credible,
it is not a defense to the issuance of Inspector Brunatti 1 s
order. MSHA points out that Inspector Brunatti determined
that the face prints submitted by the respondent, and shown
to him on August 5, 1986, did not reflect the actual ventilation system in the mine, and further, did not show how such

2093

retreat mining was to be ventilated in the future. MSHA concludes that this is a violation of section 75.316, which provides that ventilation plans shall correspond with the pattern
of mining in any one area, and that any alleged previous
belief that the respondent could modify its plans without
prior approval is irrelevant as to whether the order was
properly issued.
MSHA argues further that such a belief on the respondent's part exceeds credulity and that its negligence was
properly rated as high. In support of this conclusion, MSHA
points to the testimony of Richard Zilka, who reviews the
ventilation plans for compliance at the District Off ice
level, and who stated that he had explained the requirements
of ventilation face prints to the respondent on several
occasions. MSHA suggests that Mr. Zilka's testimony at trial
was clear and consistent, and that his testimony that he was
in almost daily contact with the respondent is uncontradicted.
Mr. Zilka recalled the names of people to whom he had spoken
as part of this daily contact, and clearly stated that the
respondent expressed no confusion durin; these meetings7 ·
therefore, Zilka did not need to reduce such constant communication to writing. Mr. Zilka emphatically stated that his
views represented those of the district, and that on the day
the order was issued, respondent's engineer Onuscheck admitted
that he knew he needed ~ace prints for this new pattern of
mining, and Mr. Brunatti recorded this conversation in his
contemporaneous notes.
MSHA concludes that it has established a prima facie
case of high negligence in that the respondent knew it was
required to submit a new ventilation face print for this mining, and further knew and admitted that at the time of the
order the prints in the ventilation plan did not cover the
situation at the D-5 areao MSHA suggests that the respondent's current claims that it believed all the while that its
prints were "close enough" to its mining system are contradicted by its employees' statements at the time of issuance
of the citations and by Zilka's and Brunatti's explanation of
MSHA policyo
~lthough respondent referred to alleged statements made by District Manager Huntley, neither a deposition
nor any written material from Huntley supports these allegations, rather the consistent, emphatic statements of Zilka
and Brunatti disprove them.
MSHA maintains that the respondent's defense to negligence that it could vary plans on its own volition undercuts
the very purpose of the Act. MSHA states that in addressing
such arguments as the "diminution of safety" defense, the

2094

Commission has rejected the argument that "an operator can
unilaterally determine that a mining operation can be conducted in a safer manner by foregoing compliance with the
requirements of a mandatory standard. 11 Westmoreland Coal
Co., 3 MSHC 1939, 1943 (1985). MSHA states that by arguing
that the ventilation of one gob, the system in place the day
Inspector Brunatti issued the inspection, may be regulated by
a face print showing the ventilation of two gobs, the systeu
revealed in Exhibit R-2, respondent suggests that it may
determine what is and is not minor variation, and that it may
determine if MSHA's safety standards are met. This argument,
concludes MSHA, impermissibly contradicts the presumption
that MSHA 1 s safety standards protect miners and the "strict
liability" nature of the Act itself. Therefore, MSHA further
concludes that the respondent's arguments strain credulity
and do not refute the testimony of Engineer Zilka and Inspector Brunatti that it was well informed as to the requirements
of the ventilation plan regulations.
Citing Cement Division, National Gypsum Co., 3 FMSHRC
822, 825 (April 1981); Mathies Coal Co., 6 FMSHRC 1, 3-4 •
(January 1984), and-consolidation Coal Company, 6 FMSHRC 34
(January 1984>, MSHA asserts that Inspector Brunatti properly
rated the violation as significant and substantial.
MSHA points out that the Commission has recognized that
the violation of a ventilation plan where "an insufficient
quantity of air could lead to a build-up of methane" was a
serious violation. Peabody Coal Co., l MSHC 1573 (1977), and
has stated that " • . • the hazards associated with inadequate ventilation • • . are among the most serious in mining."
Monterey Coal Co., 3 MSHC 1833, 1855 (1985). MSHA states
that in Monterey the Commission reaffirmed that the proper
focus of a hazard presented by a violation is not solely on
the instant situation, but ~.
on the hazards posed by
continuing mining operations.R 3 MSHC at 1836. MSHA concludes that the violation in issue here meets those standards
in that the face prints Mr. Brunatti reviewed did not show
how to ventilate the area he inspected. As a result of the
lack of an applicable face printp there was no plan to
re-route the air leakage into the working section which endangered the minersil and Mr. Brunatti 1 s contemporaneous notes
support his observation on the existence of this leakage.
a

•

MSHA asserts that ventilation leakage causes methane and
black damp, and therefore there was an underlying violation
as a result of the lack of face prints and a discrete safety
hazard from the leakage caused by such lack of a ventilation
plan. The mere direction of air into the return entry is not

209 5

enough to overcome this safety hazard. The fact that the
respondent would suggest that simply directing air into the
entry, and not also directing it away from the working section complies with the Act, reveals a dangerous ignorance of
the correct ventilation procedures. MSHA maintains that the
air must be directed away from the working face as well as to
the return airway. Otherwise, there is a reasonable likelihood that miners will be exposed to black damp and to accu.~u
lations of methane. These exposures lead to explosions which
produce serious health injuries.
MSHA asserts that even if no leakage occurred that day,
the order was still properly rated "S & S" in that a ventilation plan by its very nature is directed against future
hazards. The mere fact that the air may happen to be flowing
in the right direction without benefit of a ventilation plan
does not assure that the air will continue to flow that way.
In fact, the very presence of ventilation plan requirements
in the MSHA regulations indicates that this system is too
important to leave to the operator's good will, or to presume
that air flowing in the "correct" direction will continue-to
do so in the absence of a ventilation plan. Such a presumption, maintains MSHA,-undercuts the strict liability nature
of the Act and the very existence of ventilation plan
requirements.
MSHA asserts that such a presumption also trivializes
the serious hazards associated with ventilation violations.
Without a face print showing how pressure would be kept on
the gob to direct air away fro1n the face, respondent presented a discrete safety hazard to its miners. Without such
a print to regulate ventilation, it is reasonably likely that
dangerous gob air will travel to the face.
In ventilation
problems, the focus is on the effect of the violation on
future mining, and not whether the air luckily travels in the
right" direction at the time of the order. Without a face
printv the respondent cannot assure that gob air will flow
away from the working section. Such gob air travelling to
the working section will carry 1nethane and black damp to the
miners, raising a reasonable likelihood that miners will
suffer serious injury. Thus, MSHA concludes that the order
is properly rated significant and substantial.
Respondent 1 s Arguments
Respondent's first argument is that the citation and
subsequent modification do not properly, and with any particularity, advise the respondenc as to the nature of the alleged
violation. Respondent points out that although the citation

2096

alleged that it did not have an approved ventilation plan
showing the ventilation system for retreat mining in the cited
area, the modification to the citation stated that it did have
an approved ventilation plan for pillar mining in the same
area prior to the issuance of the citation. Respondent contends that the modification discounts any notion that it did
not have an approved ventilation plan, and that the citation
and modification are contradictory.
In response to the inspector's statement in the modification that "the system of mining changed, thus necessitating a
need for a new ventilation plan," the respondent contends
that the inspector's attempt to substantiate a violation by
stating that the system of mining had changed, thus necessitating the filing of a new ventilation-face print, is contradicted by his own testimony that the system of mining employed
was pillar mining. Respondent asserts tha.t the terms "pillar
mining" and "retreat mining" are interchangeable. It points
out that while Inspector Brunatti attempted to distinguish
pillar mining on the left and right sides of the cited area
being mined, he nonetheless admitted that "pillar mining"' is a
"system" of mining'·- and that the respondent did have a face
print, drawing #lr 0£ the ventilation plan (Exhibit R-2),
which did show pillar mining on the left side.
In response to Inspector Brunatti's testimony that "the
essence of the violation is that the operator didn't have a
plan to show how the ventilation would be established while
retreat mining" (Tr. 45}, respondent contends that this is
contradicted by his written modification which states that it
did have a plan for pillar mining in the cited area, and by
his own testimony that the approved plan print showed gob
ventilation in the section (Tr. 89).
Respondent contends that the attem~ts by Inspector
Brunatti and MSHA 1 s ventilation engineer Zilka to support a
violation of section 75.316 because the face print submitted
to abate the order (Exhibit R-1) shows one gob area and the
face print in the ventilation plan (Exhibit R-2) shows two
gobs, must be rejected. In support of this conclusion,
respondent contends that this is not a violation of section
75 316v and that even if it wereu respondent has never been
informed in writing that the condition was a violation.
Respondent points out that neither the citation nor the modification mentions gobs, and that it cannot even be inferred
from the citation that gobs had anything to do with the violation. Since section 104(a) of the Act requires that the
nature of the violation be described in writing with particularity, respondent concludes that the
ck of any mention of

2097

gobs in the citation violates the specificity requirements of
section 104(a) when the nature of the violation is alleged to
be a distinction between one gob and two gobs.
Citing a Commission decision in Jim Walter Resources,
Inc., 1 FMSHRC 1827 (November 1979), respondent maintains
that it was not sufficiently apprised of the nature of the
violation to either litigate the alleged violation or cure
any alleged deficiencies which might pose a hazard to miners.
Respondent states that it became aware on the eve of the hearing that the violation involved a distinction between one and
two gobs. Although Inspector Brunatti testified that he told
the respondent that Drawing 11 (Exhibit R-2) of the ventilation plan did not apply, respondent asserts that there is no
indication that he mentioned a distinction between gobs, and
that no such distinction was ever related to the respondent
in writing. Further, respondent states that although it
requested more specific information with regard to the factual
basis for the violation when it served prehearing interrogatories on the petitioner, the interrogatories were unanswered.
Respondent conced~s that 'it was sufficiently apprised of
the nature of the violation in order to abate the citation
because all that was required to abate was a drawing of
exactly what the se.ction looked liked on the day in question,
but that until the eve of the hearing, it was not aware of
the one gob versus two gob distinction asserted as the basis
of the violation. Recognizing the fact that abatement
suggests knowledge of the violation, respondent maintains
that this is not enough to satisfy the specificity requirements of section 104(a). In support of this conclusion,
respondent relies on a prior decision by me in Monterey Coal
Company, 6 FMSHRC 424, 444 (February 1984), vacating citations for lack of specificity as required by section 104(a)u
and
points out that in the instant casev aside from the
face that the citation did not specifically mention gobsu it
did not even generally allude to any gobs.
Respondent 1 s second argument is that Drawing No. 11 of
the approved ventilation plan (Exhibit R-2) portrayed the
ventilation system in the cited section in sufficient detail
to preclude a finding of a violation of section 75.316.
Respondent takes the position that the inspector 0 s allegation
in the citation that a violation of section 75.316 occurred
because the respondent did not have a ventilation plan showing the ventilation system for retreat mining is not true
because in the modification the inspector admits that the
respondent had an approved ventilation plan for pillar mining.

2098

Respondent also takes the position that the inspector's testimony ~hat a violation of section 75.316 occurred because of
the lack of an approved face print to conduct that type of
mining is also not true because the inspector admitted that
the type of mining being conducted at all relevant times was
pillar mining. Respondent further argues that the inspector's
allegation that a violation existed because of the lack of a
face print showing pillar mining on the left side is also not
true because he admitted that there was a face print showing
pillar mining on the left side.
Respondent concedes that the face print in the approved
ventilation plan (Exhibit R-2) shows two gobs while the print
submitted for abatement (Exhibit R-1) shows only one gob.
However, respondent maintains that the petitioner has not
shown that its regulations or the respondent's approved ventilation plan requires it to show the number of gobs in a section, and that it has not even shown that the respondent is
required to show gobs on a face print. With respect to the
inspector's suggestion that section 75.316-1(13)(b)(3} may
serve as a basis for a violation of section 75.316, respondent points out that the inspector admitted that no violation
of section 75.316-1(13)(b)(3) existed.
The respondent states that initially, the two gobs are
only a temporary condition. It points out that responaent's
ventilation engineer Onuscheck testified that the print in
the approved plan had not shown any stumps extracted c·rr.
273), but that stu..rnps would be extracted (Tr. 274), and that
the inspector incorrectly assumed that the stumps would
remain (Tr. 274-275). Respondent further points out that
ventilation engineer Ondecko testified that once blocks have
been extracted, one gob would result and the gobs would be
identical (Tr" 308-309), and that Inspector Brunatti agreed
that if the blocks are removed one b~g gob would result (Tr"
319). In these circumstances, respondent suggests that the
issue is then whether it was required to have in the approved
plan a face print showing each stage of mining and the
removal of each stump as the two gobs evolve into one gob.
Respondent refers to the testi1nony of Mr. Onuscheck that
MSHA's District Manager Huntley suggested to him that three
plans would cover everything that was necessary; one print
showing rooms being driven, one print showing entries being
driven, and one print showing stwnping (Tr. 221). Respondent
concludes that this does not indicate that the District
Manager required a face print showing the ventilation for
each step in the mining process, and it points out that

2099

Mr. Onuscheck, in conjunction with MSHA personnel, then formulated the packet of typical face prints that are presently
submitted and approved as part of the ventilation plan (Tr.
222). There are twenty face prints in mine ventilation plan
Review No. 28 which was in effect at the time in question,
far more that the number suggested by MSHA's District Manager
to cover the system of mining and ventilation employed at the
respondent's mines. Mr. Ondecko then went over each print
individually and tailored the packet of prints to conform to
mining practices at Greenwich No. 1 Mine (Tr. 305), and the
intent of the District Manager, Mr. Onuscheck, and the MSHA
personnel with whom Mr. Onuscheck worked, was obviously to
have general face prints. Respondent points out that MSHA
ventilation engineer Zilka agreed that the District Off ice
requested only face prints that were r~presentative of the
mining going on at the mine (Tr. 147), and that the prints
submitted in Review No. 28 are a typical face ventilation
plan for each systam (Tr. 150).
Respondent maintains that a distinction must be made
between general prints, as in4ended in this case, and universally applicable prints. Respondent recognizes the fact that
the parties involved-in the formulation of typical face
prints are aware that ventilation plans are mine specific,
Jim Walter Resources, Inc., 9 FMSHRC 903, 909 (May 1987), and
that section 75.316 requires that the plan is "suitable to
the conditions and the mining system of the coal mine."
Respondent points out however, that Mr. Onuscheck and MSHA
personnel from the District Office in Pittsburgh formulated
the typical prints to conform to the conditions and mining
systems at the respondent's mines, and that Mr. Ondecko
further tailored the prints to conform to the conditions and
mining practices at the Greenwich No. 1 Mine. Respondent
concludes that the testimony shows that it did not violate
that portion of section 750316 which requires it to adopt a
ventilation plan approved by the District Manager suitable to
the conditions and the mining systems of the mine in question.
Respondent quotes a pertinent portion of section 75.316,
which provides as follows:
"The plan shall show the type and
location of mechanical ventilation equipment installed and
operated in the mine, such additional or improved equipment
as the Secretary may require, the quantity and velocity of
air reaching each working face, and such other information as
the Secretary may require."
Respondent maintains that the petitioner has not shown
or even alleged that a violation existed due to deficiencies
in the ventilation equipment, and there are no allegations

2100

that the quantity and velocity of air reaching each working
face was unsatisfactory. Respondent concludes that it must
be presumed that the plan initially contained enough information because it was approved by the District Manager, and the
information submitted apparently was in compliance with section 75.316-1 and he presumably used the criteria set forth
in section 75.316-2 as a guideline in the approval process.
Respondent observes that the pet~tioner is apparently
alleging that it violated section 75.316 by not providing
"such other information as the Secretary may require." Conceding the fact that MSHA may require additional information
or ongoing information, the respondent nonetheless asserts
that it must be informed as to the nature of the information
required, and suggests that the petitioner alleges an act of
"omission" rather than "commission." Respondent concludes
that in order to be in violation due to omission it must
first be required to do something and to have a duty to perform.
In this case, respondent maintains that the petitioner
has not shown that it had a duty to submit a new face print
when the mining sequence showed two gobs rather than one,-and
that any such requrrement cannot be found in the applicable
MSHA regulations or in the specific ventilation plan for the
mine in question.
Respondent further assects that the applicable plan does not require it to show the number of gobs.
In response to the petitioner's suggestion that it should
have been aware that MSHA's District policy requires that a
face print must be submitted when two gobs exist rather than
one (Tr. 124-125, 134, 140-141>, respondent points to the testimony of Mr. Onuscheck that he had requested District policy
in written form but that he never received it (Tr. 287).
Further; citing Zeigler Coal Co. v. Kleppe, 536 ~.2d 398
(DoCo Ciro 1976); and Carbon County Coal Company, 7 FMSHRC
1367 1371 (September 1985); (cited as 6 FMSHRC 1123 (May
1984), respondent maintains that since ventilation plans are
mine specific, any MSHA District general policy regarding the
requirements of a ventilation plan are improper.
Respondent
quotes from the Zeigler case, where the court stated:
[T]he plan idea was conceived for a quite
narrow and specific purpose.
It was not to be
used to impose general requirements of a
variety well-suited to all or nearly all coal
mines, but rather to assure that there is a
comprehensive scheme for realization of the
statutory goals in the particular instance at
each mine.
Zeigler Coal Co. v. Kleppe,
536 F.2d 398 (1976).

2101

And, from the Carbon County case, where the Commission,
quoting from the Zeigler court decision, stated: 11 Insofar as
those plans are limited to conditions and requirements made
necessary by peculiar circumstances of individual mines, they
will not infringe on subject matter which could have been
readily dealt with in mandatory standards of universal
application."
Respondent asserts that if MSHA believes that more specific face prints are required as a general policy, then the
proper procedure is to promulgate a regulation to that effect
rather than attempt to impose the requirement across the board
in each mine specific ventilation plan. Furthermore, the
respondent asserts that its mine plan does not contain a provision requiring it to submit such specific information, but
in fact contains a provision which expressly negates such a
requirement, namely, Part "E" (Exhibit R-3), which provides
as follows:

(2)

TYPICAL FACE PRINTS

The following face ventilation plans depict
typical systems of face ventilation used in
the mine. Variations of the following plans
may be used provided that the systems of ventilation remain in accordance with Federal
Regulations.
Respondent points out that Inspector Brunatti, while
stating that he was "fairly familiar with the ventilation
plan" (Tr. 13), admitted that he was not familiar with Exhibit
R-3 and that it was not a part of Review 28 because he could
not find it in his copy of the ventilation plan (Tr. 81), and
that District engineer Zilka testified that if the exhibit was
not in Inspector Brunattius plan, it was not filed in the
District Office in Pittsburgh (Tr" 151)" Contr~ry to this
testimony, respondent states that Mro Onuscheck and Mr. Ondecko
testified that Exhibit R-3 was in fact a part of Review 28 of
the approved ventilation plan (Tr. 245, 305-306), and that in
response to a bench order for an affidavit from the responsible
person in the MSHA District Office concerning the filing of the
exhibit, petitionerus counsel confirmed that it was in fact on
file in the District Office.
Respondent refutes the inspector 1 s inferences that the
respondent was not aware of its own ventilation plan, and
takes issue with his testimony that when mine management

2102

attempted to show him a print that showed the mining and ventilation system used on the cited section it was "grabbing at
straws for something that they thought would cover 11 the situation. Conceding that this may be true, respondent asserts
that the mine manager and safety director cannot be expected
to be aware of all the technicalities of the face prints in
the ventilation plan. If they were, there would be no need
for ventilation oersonnel or for that matter any other management people. Th~ mine manager could do everything himself.
Respondent suggests that the only plausible way to operate
such a complicated operation is to delegate some authority to
responsible people, and that if Mr. Ondecko was available
when the inspector asked for the print, Mr. Ondecko would
have shown the inspector, as did those present, Drawing
Nao 11 {Exhibit R-2), without the alleged hesitancy.
In response to the inspector's testimony that
Mr. Onuscheck had submitted a ventilation plan for review
without mine level management's knowledge (Tr. 23, 27),
respondent states that this is pure speculation and totally
inaccurate, and that mine ventilation engineer Ondecko testified that he and ML. Onuscheck formulated the packet of face
prints, and that Mr. Ondecko went over each print individually
to insure that it pertained to the mine in question (Tr. 305).
Respondent maintains that on the facts of this case, the
inspector was attempting to enforce a ventilation plan that
he knew very little about, that his copy of the plan, for
whatever reason, did not contain Exhibit R-3, and that he was
unaware of the procedure followed by the respondent and
MSHA's District Office used to formulate the plan, which was
to reduce the nwnber of face prints that possibly could have
been submitted from approximately 500 prints to the 20 prints
that were submitted (Tr" 264)" Respondent points out that
the inspector admitted that mine management had some face
prints that closely resembled the mining activity in the
cited sectionp and that the mine is permitted to vary from
the specific print in the ventilation plan (Tr. 342, 345).
Mro Onuscheck testified that the inspector wanted a plan that
showed exactly what was going on in the mine (Tr. 261), but
respondent takes the position that it was not the intent of
MSHA or the respondentf the parties involved in the approval
and adoption of the ventilation plan, that exact prints would
be required"
Respondent points out that Mr" Onuscheck testified that in the year and a half the typical prints were in
use, respondent had mined approximately fifteen million tons
of coal and had no problems with the face prints, and no
other MSHA inspectors had ever questioned the manner in which

2103

the respondent was mining (Tr. 241, 294). Respondent concludes that it was not the intent of the parties that detailed
face prints were required as part bf the ventilation plan.
Respondent maintains that Part "E" of plan Review No. 28
(exhibit R-3), as part if the approved ventilation plan,
allows it leeway to vary from the drawings on the specific
prints submitted as part of the plan, and that any such leeway
is limited only by MSHA's ventilation regulations. Respondent
asserts that the petitioner has not shown that there are other
provisions in the mine ventilation plan which limits the
respondent's right to vary from the print submitted, and it
points out that Mr. Onuscheck testified that MSHA has never
told the respondent that it was varying too much from the
plans prior to the alleged violation in question (Tr. 286).
Respondent further maintains that the petitioner has not shown
that the variance has violated any other MSHA regulatory provisions, and has not shown that the respondent is required to
submit more specific prints than the prints that were submitted in this case.
In response to the inspector's allegation that gob air
was going into the section return (Tr. 18), respondent states
that the petitioner has not shown that this constitutes a
violation of the ventilation plan. To the contrary, respondent asserts that the credible evidence suggests that the gob
air was moving in the proper direction (Tr. 191-192), Exhibit
G-1), and observes that if it was not, the inspector would
have included that finding in the citation or modification.
In fact, this allegation is not mentioned in either the
notice or the modification. Respondent takes the position
that if the inspector thought this to be a violation, he
should have properly included it in the citation. Respondent
maintains that it serves no purpose to put such a finding in
the inspector's notes where conceivably, if the citation was
not challenged, no one would ever see the finding and the
respondent would not have an opportunity to contradict the
allegationu or more importantly, could not cure any alleged
existing hazard.
Respondent concludes that the inspector's allegation that
the gob air was improperly directed is nothing more than a
balled assertion by the inspector, and that the respondent's
mine safety inspector Desalvo, who accompanied the inspector
on the day in question testified that while the inspector took
a smoke test, it showed that the air was not going back to
where people were working (Tr. 191-192). Although the inspector had an opportunity to rebut Mr. DeSalvo's testimony, he
simply testified that he normally does a smoke test, but he

2104

could not recall if he did on the day in question (Tr. 370).
Respondent<concludes that a violation cannot stand on unsupported allegations that air was moving improperlyf when the
actions of the inspector and the testimony 0£ an eyewitness
suggest otherwise.
Respondent's final argument is the assertion that asswning a violation existed, it was not significant and substantial within the guidelines establishe·d by the Commission in
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
(April 1981), and Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
19 84).
Respondent points out that in the instant case the
inspector alleged that "if the section"isn't properly ventilated or the pressure isn
kept on the gobu you could have
accumulations of methane in the gob area or, which could in
essence come back into the working area" (Tr. 14 1 emphasis
added). Respondent does not disagree with this statement,
but takes the position that the petitioner has not shown that
the section was improperly ventilated. Respondent mainta~ns
that the facts show that the entire testimony of inspector
Brunatti and MSHA ventilation engineer Zilka, does not show
that the ventilation system was improper, and neither witness
even suggested that the section should have been ventilated
differently than it was ventilated. The only testimony
regarding the propriety of the ventilation system in use was
that of Mr. Desalvo who testified that he told Mr. Brunatti
that he felt the way Greenwich was ventilating the gob area
was the best possible way to ventilate it (Tr. 193), and that
Inspector Brunatti agreed with this statement (Tr. 193). The
inspector testified that he took methane readings at various
locations, including the return, and found no problems or
excessive levels of methane (Tro 57-58)0
Respondent suggests that it was not reasonably likely
that an injury of a reasonably serious nature would result
from a methane ignition when the section was ventilated in
the best possible way and the particular facts show that
there is no accumulation of methane. Even assuming that air
was flowing improperly from the gob, the significant and Substantial finding is not supported because it would be necessary to assume that methane would accumulate to combustible
concentrations and assume that these concentrations would go
undetectedo
It is also necessary to assume that the combustible concentrations would reach ignition sources. If a cable
or electrical component is the asserted source of ignitionv
it is necessary to assun1e that a violation exists regarding
the cable or electrical component which would cause a spark

2105

_2cted by the
inspector.
Respondent further argues that if the source of ignition
is claimed to be the mining machine~ it is necessary to
assume that the methane monitor would fail to warn the
machine operator, or the machine operator would not heed the
warning, and assume that the methane monitor would fail to
deenergize the equipment at the required time and assume that
something produced a spark.
Respondent concludes that while the foregoing scenarios
are possible, the likelihood of that chain of events occurring
is so remote as to preclude any finding that there was a "reasonable likelihood" of the occurrence. · Respondent believes
that, even assuming gob air was moving improperly, and a possibility of an injury existed, that possibility would be so
remote as to be unlikely, rather than reasonably likely to
occur.
Respondent points out that the inspector testified
that if gob air was not going back into the section, the
system of ventilation used was. adequate for the system of'·mining employed, and tha:t·the hazard posed by simply not having a
print in the plan was minimal, if any hazard at all (Tr. 46,
48).
Findings and Conclusions
Alleged Lack of Specificity of the Citation and Modification
Thereto
Respondent raised the specificity issue for the first
time when it filed its posthearing brief. While it may be
true that MSHA did not respond to the respondent's prehearing
interrogatories, filed on February 4u 1987~ respondent had
more than ample time prior to the hearing to file an objection or seek an order requiring MSHA to respond, but it did
not do soo Respondent also failed to avail itself of a more
than ample time to depose the inspector in advance of the
hearing.
While i~ is true that the citation and modification do
not specifically refer to gobs, respondentus counsel conceded
that he was made aware of the "gob theory" of MSHA's case on
the eve of the hearing.
If counsel believed that he was
unduly prejudiced in the preparation of his case, he could
have requested a continuance of the hearing, but he did not
do so. Further, the record here establishes that the citation was terminated and the violation was abated after
Mr. Onuscheck hand delivered to MSHA a ventilation face print

2106

covering the prevailing conditions at the time the citation
was issued. This was done 2 days after the issuance of the
citation. Mr. Onuscheck confirmed that he and Mr. Brunatti
discussed the reasons for the issuance of the citation, and
Mr. Desalvo confirmed that before issuing the citation,
Mr. Brunatti discussed the matter with the mine and division
managers, and that they collectively reviewed the ventilation
plans and prints which were available at the mine. Given all
of these circumstances, I find it hard to believe that the
respondent was unaware of the theory of MSHA's case.
Although the citation and modification issued by
Mr. Brunatti appear to be contradictory, the modification
makes it clear that while the respondent had an approved
ventilation plan covering any retreat-pillar mining prior to
the date of the inspection and issuance of the citation,
Mr. Brunatti could find no evidence that any plan provision
on file covering the particular conditions which prevailed on
the day of his inspection. While it is true that Mr. Brunatti
did not spell out the gob conditions that concerned him, he
did state that "the system.of mining changed thus necessi~
tating a need for.a new ventilation plan." His notes of
August 4, 1986, reflect that Mr. Desalvo admitted that the
available face prints did not match the prevailing face ventilation system, and his notes of August 8, 1986, reflect that
Mr. Onuscheck and mine management were aware of the need for
new face prints. Mr. Brunatti's notes also reflect that the
respondent had plans to pillar the return side of the cited
area, that he observed the return side being pillared, and
that mine superintendent Lowmaster acknowledged that he was
not aware of any ventilation plan to cover that situation, as
well as the lack of face prints to cover future mining, and
that he would discuss the matter with Mr. Onuscheck.
Mr. Brunatti testified in detail with respect to the
'"changed mining system'1 referred to in his modified citation.
In my view, while the use of the words "mining system 1 " without further elaboration describing precisely what Mr. Brunatti
had in mind, was a poor choice of language, Mr. Brunatti's
testimony clarified the matter, and Mr. Brunatti was subjected
to cross-examination by the respondent. Coupled with the
detailed posthearing br f filed by the respondent, and the
testimony adduced in this case, I find no basis for concluding
that the respondent was oblivious to the theory of MSHA's
case 1 or that it was prejudiced by Mr. Brunatti's failure to
spell it all out on the face of the citation.
~ccordingly,
respondent 1 s assertions to the contrary ARE REJECTED, and its
request that the citation, as modified, be vacated on the
ground of lack of specificity IS DENIED.

2107

Fact of Violation
The respondent is charged with an alleged violation of
the ventilation system and methane and dust-control plan
requirements of mandatory safety standard 30 C.F.R. § 75.316,
which provides as follows:

A ventilation system and methane and dust
control plan and revisions thereof suitable to
the conditions and the mining system of the
coal mine and approved by the Secretary shall
be adopted by the operator and set out in
printed form on or before June 28, 1970. The
plan shall show the type and location of
mechanical ventilation equipment installed and
operated in the mine, such additional or
improved equipment as the Secretary may
require, the quantity and velocity of air
reaching each working face, and such other
information as the Secretary may require.
Such plan shall be reviewed by the operator
and the Secretary, at least every 6 months.
It seems clear that the intent and purpose of section
75.316, is to require a mine operator to adopt an MSHA
approved ventilation plan which is tailored to and "suitable
to the conditions and the mining system 19 of the particular
mine where it is to apply. It is also clear that once
approved and adopted, the ventilation plan and any revisions
thereof, are enforceable as though they are mandatory safety
standards.
Zeigler Coal Co. v. Kleppe, 536 F.2d 398
(D.C. Cir. 1976); Carbon County Coal Company, 7 FMSHRC 1367
(September 1985)~ Jim Walter Resources, Inc., 9 FMSHRC 903
(May 1987)0
Respondentis defense in this case is based on its assertion that ventilation face print R-2 is in fact the applicable ventilation plan face print which applied to the existing
mining conditions at the time Mr. Brunatti inspected the D-5
section and issued his citation" Respondent maintains that
even if the prevailing mining and ventil~tion conditions on
t
were at variance from what is shown on the printf it
is nonetheless permitted to vary from the print, on its own
volition and that it can change or vary the ventilation
system without MSHA approval, or without submitting another
p~int.
Respondent is of the view that since MSHA has approved
the use 0£ "typical" printsv R-2 being one of them, such

2108

prints need not reflect the actual mining conditions or ventilation system in use at any particular time. As examples,
respondent maintains that assuming an inspector found some
air leakage due to an inadequately ventilated gob, or found
that the gobs were not separated by stoppings as reflected on
any "typical" print, it may be cited for a violation of any
applicable mandatory ventilation standard, but it may not be
cited for a violation of section 75.316 for failing to have a
specific ventilation plan face print to cover the prevailing
mining and ventilation conditions.
The parties are in agreement that the terms "pillar mining11 and "retreat mining" are synonymous. The respondent
takes the position that the inspector's allegation in the
citation that no plan provision existed showing the ventilation system for retreat mining in the cited area is contradicted by the modification to the citation where the inspector
states that the respondent did have an approved ventilation
plan for pillar mining. While it is true that the two statements, on their face, appear contradictory, the inspector's
statements must be taken in context. The inspector qualified
the statement which appears' on the modification, and he
clearly indicated tiiat while the respondent may have had
approved ventilation plans covering pillar and retreat mining,
which may have taken place prior to his inspection, he could
find no evidence of the existence of any applicable plans for
what was taking place at the time of his inspection. Thus,
the focus of the alleged violative conditions is properly on
the inspector's belief that, notwithstanding the pillar or
retreat mining ventilation procedures being followed in those
past instances when other inspectors may have inspected the
mine, the system of mining being followed on the day of his
inspection was not the same, and that since conditions had
changed, which
ther affected, or may reasonably be expected
to affectff the ventilation in the section, an approved plan
provision to cover the changed mining procedures and condi~
tions was necessaryo
The term "mining" is defined by the Dictionary of Mining,
Mineral, and Related Terms~ published by the Bureau of Minesv
UoS. Department of the Interior, 1968 Edition, in part as
"[T]he excavation made in undermining a coalface." The term
"system" is defined
Webster~s New Collegiate Dictionary, in
part, as "an organized or established procedure or pattern."
rhe term is also defined by the mining dictionary, in part as
follows~

d.
plan.

Regular method or order, a

* * *

2109

g. The term system or general system of
work means simply that the work, as it is
commenced * * * is such that, if continued,
will lead to a * * developme·nt of the veins
or ore bodies that are supposed to be in the
claim, or, if these are known, that the work
will facilitate the extraction of the ores and
mineral.
Mr. Brunatti confirmed that the "system" of mining being
followed at the time of his inspection was retreat mining.
He explained that after reaching the limits of the mined
areas on the right return side of the entry, the mining cycle
proceeded to the left intake side of the entry and pillars
were being extracted, thereby creating one gob across the
entire intake and return sides of the entry. Mr. Brunatti
believed that with the completion of the pillaring work on
the right return side of the entry, the change of direction
towards the left intake side of the entry where coal was
being extracted constituted a change in the mining "syste~."
It seems rather apparent to me that while Mr. Brunatti characterized the general "system" of mining taking place on the
day of his inspection~s retreat or pillar mining, he viewed
the completed work which had taken place on the right return
side of the entry, as well as the working being performed on
the left intake side of the entry, as two distinct "systems
of mining" within the overall "system" of retreat or pillar
mining.
Inspector Brunatti's unrebutted testimony establishes
that when he conducted his inspection, retreat mining was in
progress in the D-5 working section. The return side of the
entry, located on the right side, had already been mined, and
rooms were being driven to the left off the intake side, on
the
ft side of the entry. One row of pillars had already
been extracted~ and work was in progress extracting a second
row of pillars at the time the inspector arrived on the scene.
The inspector observed that the area was in full retreat, and
that the mined-out return side to the right of the entry,
which constituted a gob area, was not separated by stoppings
from the area being extracted on the left intake side of the
entry. The inspector described both sides of the entry as a
"solid gobq 11 and he did not believe that the section was
being ventilated properly because he detected air leaking
from the gob into the return side of the entry.
I conclude and find that the "system of mining" alluded
to by Mr. Brunatti was the pillar retreat extraction work

2110

taking place on the left intake side of the entry.
I further
conclude and find that the work being performed ~t that time
consti·tuted a change in the mining system in that the work on
the right side of the entry had been previously completed
after the area had been driven to its planned limits, and at
the time Mr. Brunatti arrived on the scene, a row of pillars
had been extracted on the left intake side, and work was in
progress extracting the second row of. pillars.
Mr. Brunatti confirmed that the respondent had an
approved ventilation plan to cover the driving and pillaring
of the rooms to the right return side of the entry. The
essence of the alleged violation in this case lies in
Mr. Brunatti's belief that the respondent did not have an
approved ventilation plan or face print to cover the pillar
work being conducted on the left intake side of the entry.
In support of this belief, Mr. Brunatti pointed out that during his discussions with mine management officials, including
a review of certain ventilation plans and face prints on file
at the mineu the respondent could not produce any plan or
print covering the procedures for ventilating the gob area
which was created by the extraction of pillars on the left
side of the entry.- Mr. Brunatti also relied on what he
believed to be ventilation engineer Onuscheck's admissions
that the previously submitted mine ventilation plans did not
correspond to the type of mining taking place in the D-5
section on the day of the day of the inspection, and
Mr. Onuscheck's assurance that such a plan would be submitted
to correspond with the mining which was taking place in order
to abate the citation. Mr. Brunatti further relied on certain statements made to him by mine superintendent Lowmaster's
and division superintendent Cocora's admissions that they had
no ventilation plan to cover the D-5 section.
Respondent 1 s safety director Desalvo admitted that ~t
the time Inspector Brunatti reviewed with management the 20
to 25 ventilation face prints which were part of the approved
mine ventilation plan, many of the prints did not match the
five operating mine sections. Mr. DeSalvo also admitted that
he had never seen the approved ventilation plan prior to the
issuance of the citation, ~hat face print R-2 is less specific
from the prints submitted to MSHA. in the pastu and that the
print does not specify on its face that it is applicable to
the D-5 sectiono
He also corroborated that superintendent
Lowmaster said something to the effect that none of the prints
reviewed by Mro Brunatti matched the mining conditions which
prevailed at the time the citation was issued.

2111

Mr. DeSalvo's testimony regarding face prints R-1 and
On the one hand, he testified that
print R-lQ which was filed to abate the violation, depicted
the mining and ventilation system in place at the time the
citation was issued.
On the other hand, he testified that
print R-2 depicted what was taking place at the tiine the
citation was issued, and that it "applied the best," and was
"close enough,n if not identical to the mining and ventilation system depicted in R-1. Further·, Mr. Desalvo conceded
that he and Mr. Lowmaster were not ventilation specialists,
and he confirmed that he was not involved in the formulation
and submission of ventilation plans or face prints.

R-2 is contradictory.

find little merit in the respondent's assertion that
safety inspector Desalvo and mine manager Lowmaster cannot be
expected to be aware 0£ "all the technicalities" of ventilation face prints.
Aside from any "technicalities," one would
expect the mine safety inspector and mine manager to at least
have some basic knowledge as to the contents of ventilation
plans and prints covering the prevailing mine conditions, and
would at least know which plan_ was applicable at any given
time.
I

Respondent 1 s ventilation engineer Ondecko, who was not
present when the citation was issued, believed that face
print R-2 was the approved part of the plan in effect when
the citation was issued.
However, he conceded that there
were differences in face prints R-1 and R-2, and he attributed
these differences to the extent of the mining which had taken
place at the time of the inspection.
Since Mr. Ondecko did
not view the prevailing conditions at the time the citations
were issue<l, he could not rebut Inspector Brunatti's observations, as confirmed by Mr. DeSalvo, that the coal pillars on
the left side of the entry were being mined in a manner which
created one
gob area which was not separated by stopp
s from the pr
ous
ned out right side gob area.
Mr. Ondecko contended that all that is required of the
respondent is the submission of general ventilation plans and
face prints showing the general mine ventilation patternu and
that specific ventilation face prints covering any particular
ning method er system which is
ng
llowed at any given
time are not required.
Although he agreed that the mine ventilation plan requires that the ventilation
r flow over the
gob areas be maintained in such a manner as to insure that
such gob
r is coursed away from the active working section,
he conceded that at times all of the gob air is not coursed
away from the working section.
He also conceded that it was
not uncommon for the air used to ventilate a gob area to

2112

course out of a crosscut in the opposite direction from that
shown on a face print.
Respondent's ventilation engineer Onuscheck initially
contended that face print R-2 represented the prevailing
pillar mining conditions and ventilation plan at the time the
citation was issued. When asked to explain why that particular face print was not submitted to abate the violation,
rather that face print R-1, Mr. Onuscheck suggested that
since Inspector Brunatti disagreed that print R-2 covered the
conditions which he observed he would probably have issued an
order for non-compliance if he submitted R-2 to cover the
abatement. Mr. Onuscheck further suggested that he submitted
print R-1 to expedite the abatement of the violation.
Notwithstanding his contention that face print R-2
depicted the prevailing conditions at the time the citation
issued, and that it was the approved plan print covering
those conditions, Mr. Onuscheck conceded that the print was
only "close to" what was required, rather than the "exact
plan" as depicted in R-1, and that the respondent was following a "variation" ~f print R-2.
Further, Mr. Onuscheck's
claim that MSHA had not previously questioned the use of
"typical" face prints such as R-2 in the past, is contradicted
by safety inspector DeSalvo's testimony that the respondent
had in fact been previously cited for ventilation plan violations under circumstances similar to those in this case.
Respondent's counsel conceded that there are differences
in face prints R-1 and R-2, but he considered them to be
"insignificant." He also conceded that there were "small
variations" between R-2 and the R-1 plan submitted to abate
the violation (Tr. 77-78~ 324). As an example of what he
considered to be a ~slight difference" in the two prints,
counsel cited the ventilation directional arrows as shown on
print R-1, which reflects a different directional flow of the
a
used to ventilate the gob than that shown on print R-2

<Tr. 92).
MSHA 0 s ventilation specialist Zilka testified that there
are significant differences in face prints R-1 and R-2, particularly with respect to how the two gobs are being ventilated.
He confirmed that the driving of entries, and the
pulling of pillars on the right and
t sides entails changes
in ventilation, and the face ventilation system used to ventilate the resulting gob areas would be different. On the facts
of this case, Mr.. Zilka was of the view that the respondent
could not use face print R-2 as a "typical" face print for the
conditions observed by Inspector Brunatti, as depicted in

2113

"typical" face print R-1, because the two prints contain different ventilation systems, and print R-2 shows a different
system of ventilation with two gob areas separated by a stopping going all the way to the face. Mr. Zilka concluded that
under these circumstances, the respondent would be required by
section 75.316, to submit a face print other than R-2 to cover
the changed mining and ventilation conditions, and that its
failure to do so constitutes a violation of that section.
I conclude and find that the preponderance of the credible evidence and testimony adduced in this case establishes
that face print R-2, which the respondent maintains is applicable in this case as a "typical" print covering the conditions cited by Inspector Brunatti, clearly depicts two
separate gob areas separated by stoppings, and I reject the
respondent's assertion that it covers the cited conditions.
I further conclude and find that the petitioner has established that face print R-1 accurately depicts the existing
conditions as observed by Inspector Brunatti at the time he
issued his citation, and it seems clear to me that his unrebutted testimony, and that of Mr. Zilka, which I find credible, clearly establishes that at the time of the inspection,
the cited area was in- the process of being pillared on the
left side of the entry, and that one unseparated gob area was
created with no stoppings isolating the right return side of
the entry from the left intake side. I further conclude that
the respondent had no approved face print, "typical" or otherwise, to cover the prevailing changed mining conditions and
system in place at the time of the inspection.

Section 75.316 requires a mine operator to adopt a ventilation plan, including any revisions, suitable to the prevailing mine conditions and mining system, and to submit such plan
to MSHA for approval. Furtheru the ventilation criteria found
in section 75.316-l(b)(4)f requires an operator to include in
its proposed plan face ventilation systems and drawings depicting the use and application of the system under all anticipated mining conditions. On the facts of this case, the
evidence establishes that the respondent has done neither.
The "typical" face plan, R-2, which respondent maintains
applied to its system of mining, did not conform to the actual
mining which was taking place, and there is no credible evidence that the respondent had ever submitted an applicable
specific face print until after the citation was issued.
The record in this case establishes that at the time the
respondent 1 s ventilation plan "binder" system was initiated,
the respondent was not managing the subject mine, and the D-5
section was not being mined. A letter dated May 23, 1983,

2114

from MSHA's District Manager Donald W. Huntley, (exhibit G-5),
acknowledges the receipt of the binder containing multiple
face ventilation plans which were applicable to the Keystone
and Helvetia Coal Mining Companies. The letter also advised
the respondent that it should list all face ventilation plans
which were to be used at those mines for each 6-month ventilation review period, and that any proposed plans not in the
binder or which have previously been ~pproved by MSHA for use
during any current plan review, should be submitted for
approval prior to being implemented.
In its May 10, 1983,
letter submitting the binder, the respondent characterized the
face prints which were included in the binder as illustrative
ventilation systems to be utilized at the Keystone and
Helvetia Mines which were being managed by the respondent at
that time. The letter advised MSHA th~t:
"In the event that
a system of ventilation is to be used that is not contained in
the folder, we will submit it as an addendum. After it is
approved the new plan will be added to the folder."
(Emphasis
added).
Mr. Onuscheck confirmed that even with the submission of
the binder, with its face prints, there were times when the
respondent had no plan incorporated in the binder to cover
the type of mining that it may have been engaged in, and in
those instances, it was required to submit a face print to
cover that system of mining not previously covered.
Mr. Onuscheck confirmed that at the time the respondent
took over the management of the subject mine, the type of mining conducted was similar to that which had taken place at the
others mines managed by the respondent. Although the D-5 section was not being mined at that time, additional "typical"
face prints were tailored to the anticipated mining in the
subject mine, and a group of 20 prints, including face print
R-2 were submitted to MSHA as part of Ventilation Plan
Review 28u (Exhibit R-3>v and they were approved by MSHA on
June 4, 1986c
Contrary to Mr" Onuscheck 1 s belief, I find no
credible evidence that establishes that face print R-1 was
included among the face print "packet" submitted to MSHA, and
it seems clear to me from the testimony and evidence in this
case that the face print was submitted by Mr. Onuscheck after
the citation was issued in order to abate the violation. The
record confirms that the face print was ap~roved by MSHA and
incorporated as part of plan 28 on August 7, 1986, 3 days
after the citation was issued (Exhibit G-4).
After careful consideration of the arguments advanced by
the parties with respect to the "typical face print" issue
raised in this case, including the respondent's attempts to

2115

use this a defense to the violation, I reject the respondent's
arguments and conclude and find that MSHA has a more compelling argument, and that its position in response to the respondent's asserted defense of the violation is correct. While it
may be true that the respondent's Plan Review 28, exhibit R-3,
which is included as part of its omnibus ventilation plans on
file with MSHA, contains a se"1i.:.cnce seemingly authorizing
variations from the "typical" face veptilation prints which
were submitted and approved by MSHA, such authorization is
qualified and conditional. This condition specifically mandates that any variations from the "typical" face prints,
which I construe to mean "illustrative" or "representative
examples," must insure that any future prints depicting mine
systems of ventilation submitted by the respondent must comply
with Federal Regulations. On the facts of this case, it seems
clear to me that the lack of any applicable ventilation face
print provision or plan to cover the changed mining conditions
as found by Inspector Brunatti during his inspection was not
in compliance with the clear language found in section 75.316,
requiring the respondent to adopt a plan provision consistent
with, and conforming to, the prevailing mining conditions~
at the time of the inspectiofr.
I agree with MSHA's position that the acceptance of the
respondent's "typical" face print argument would allow the
respondent to deviate from its approved ventilation plan and
face prints with no consideration given to the pattern of
mining in existence at any given time, any changes in the
ventilation system which necessarily are affected by such
changes, the absence of ventilation stoppings clearly indicated in previously submitted face prints, the creation of
additional gob areas not shown on previously submitted
prints, and any clearly defined areas of anticipated mining
and ventilation to insure tnat all 11entilation requirements
are metv and to guard against possible air leakage from the
anticipated gob areas into the active workings of the mine.
The evidence in this case establishes that at the time the
respondent submitted its omnibus ventilation plans covering
other mines which it managed, the same plans which it apparently incorporated by reference as covering the subject mine,
it cecognized its obligation to submit additional plans and
face prints not previously filed for MSHA's approvalv and
that it was required to submit ventilation face prints covering any system of minin:r not previously covered.
In view of the foregoingv I conclude and find that MSHA
has established a violation of section 75.316, by a preponderance of the credible evidence and testimony adduced in this
case. Accordingly, the violation IS AFFIRMED.

2116

Significant and Substantial Violation
A "significant and subst~ntial" violation is described
in section 104(d)(lJ of the Mine Act as a violation "of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard."
30 C.F.R. § 814(d)(l). A violation is properly
designated significant and substantia"I "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious
nature. 11 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: ·cu 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 tnat the third
element of the Mathies formula ~requires tnat
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.u 6 FMSHRC 1834, 1836 (August
1984), We have emphasized that, in accordance
with the language of section 104(d)(l)v it is
the contribution of a violation to the causa
and effect of a hazard that must be significant
and substantial.
U.S. Steel Mining Company,
Inc.v 6 FMSHRC 1866, 1868 (August 1984); U.S.
St.eel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).

2117

While it is true that Inspector Brunatti could not
recall taking any smoke tests, and did not mention any air
leakage in the citation and order, his testimony, which I
find credible, and his contemporary notes of August 4, 1986,
exhibit G-2, reflect that gob air was coming into the section.
Mr. Brunatti testified that his belief that air was leaking
off the gob was based on "sight and feel," and that he could
"see it (air) on the canvas, the way ~he canvas, the pressure
on the canvas, and you could fee the air" coming from the
pillared gob area back into the section (Tr. 59, 370).
Respondent's reliance on Inspector Brunatti's testimony
that the lack of a face print posed only a minimal, if any
hazard at all, is rejected. That testimony came in response
to a hypothetical question which assumed no air leakage and a
proper ventilation system in place suitable to the prevailing
mining conditions. Even if there were no air leakage, I
agree with MSHA's position that the lack of a ventilation
face print presented a discrete safety hazard to miners. The
purpose of a ventilation plan and ventilation prints is to
lay out the ventilation system for ongoing and future mining,
and the means for insuring that adequate ventilation is available to carry away methane and other noxious gases from the
active working areas of the mine. Such plans usually include
the required quantities of air and pressures, and the ventilation system and equipment used to control and distribute the
air throughout the areas where miners may be working.
In the
absence of any definitive ventilation plans or prints corresponding with the actual mining which may be taking place,
and given the fact that changes in the mining system and prevailing conditions occur as the mining cycle advances or
retreats, there is a real potential that air leakage will go
undetected, that necessary corrections or adjustments to ventilation curtainsv stoppingsu or other means of maintaining
and controlling the ventilation may not be taken into accountv
and that air pressures and air quancities will not be monitored to insure continued and uninnibited adequate ventilation
in the working section. Should this occur, I believe it is
reasonably likely that miners will be exposed to potentially
dangerous and hazardous ventilation conditions of a reasonably
serious nature likely to result in serious injuries"
On the facts of this case, the absence of a ventilation
face print is particularly critical in terms of maintaining a
continuous safe working environment for the miners.
In this
caseu the respondent's own safety director admitted that at
times all of the gob air is not coursed away from the working

2118

section, that it was not uncommon for the air used to ventilate a gob area to course out of a crosscut in the opposite
direction from that shown in the ventilation plan, and that
he, and possibly the mine manager, were unaware of the applicable ventilation plan or face prints covering the mining
conditions in place at the time of the inspection. Given all
of the aforementioned circumstances, I conclude and find that
the inspector's special "significant fond substantial" finding
was justified, and IT IS AFFIRMED.
The Unwarrantable Failure Issue
The governing definition of unwarrantable failure is
still to be found in Zeigler Coal Company, 7 IBMA 280 (1977)
decided under the 1969 Act which held in pertinent part as
follows at 295-96:
In light of the foregoing, we hold that an
inspector should find that a violation of any
mandatory standard was caused by an unwarrantable failure to comply with such standard if he
determines that the operator involved has
failed to abate the conditions or practices
constituting such violation, conditions or practices the operator knew or should have known
existed or which it failed to abate because of
a lack of due diligence, or because of indifference or lack of reasonable care.
Zeigler was specifically approved during consideration of
the 1977 Act.
S. Rep. 95-181, 95th Cong., l3t Sess., at 31-32
(1977>, reprinted in Senate Subcommittee on Labor, Committee
on Human Resources, 95th Cong., 2nd Sess., Legislative History
of the Federal Mine Safety and Health Act of 1977, at 619-620
(1978)0
In United States Steel Corporation, 6 FMSHRC 1423, 1437

(J'une 1984), the Commission concurred in the Zeigler definition of unwarrantable failure and held that an unwarrantable
failure to comply may be proved by a showing that the violave condition or practice was not corrected or remediedu
pcior to the issuance of a citation, because of indifference,
willful intent, or a serious lack of reasonable care.
During the course of the hearing in this case, I ruled
from the bench that the question as to whether or not the

2119

alleged violation was the result of the respondent's unwarranted failure to comply with the cited mandatory safety standard was not an issue in this civil penalty proceeding, Black
Diamond Coal Co., 7 FMSHRC 1117, 1122 (August 1985). However,
in a recently issued decfsion, MSHA v. Quinland Coals, Inc.,
9 FMSHRC 1614, September 30, 198'7;-the Commission held that
the merits of any special unwarrantable failure allegation may
be addressed in a civil penalty proceeding, and it stated as
follows at 9 FMSHRC 1621:
..
Because under the Mine Act a special find~
ing is a critical consideration in evaluating
the nature of the violation alleged and bears
upon the appropriate penalty to be assessed, we
conclude that the Act does not pr~clude the
review of special findings in a civil penalty
proceeding and that the purpose of the Act and
the interests of those subject to it are best
served by permitting review.
Although the unwarrantable failure issue was not dis~
cussed in the initiaLposthearing briefs filed by the parties,
they were afforded an opportunity to further supplement their
arguments in light of the Quinland Coals, Inc. decision, and I
have considered these arguments in the course of my decision.
On the facts of the instant case, and with respect to the
issue of negligence, MSHA takes the position that the respondent exhibited a "high" degree of negligence in that it knew
that it was required to submit a new ventilation face print to
cover the mining system and conditions which prevailed at the
time of the issuance of the citation, and that it further knew
that the then available prints did not cover that situation.
MSHA 0 s definition of "high negligence," as reflected in its
Part 100 civil penalty assessment criteria, 30 C.F.R.
6
§ 10 0. 3 ( d), is as fallows~
'High Negligence.
(The operator
knew or should have known of the violative condition or practice, and there are no mitigating circumstances)."
In further explanation of the term "mitigating circumstances," section 100.3(d) states "Mitigating circumstances
may include, but are not limited to, actions which an operator
has taken to prevent, correct, or limit exposure to mine
hazardsn (e:mphasis supplied).
Although Mr. Brunatti alluded to changing his negligence
tinding from "moderate" to "high" when he modified the citation to an order (Tro 20v 90-9l)v and the copy of the citation

2120

reflects a faint circle around the appropriate "high" negligence and "order" blocks under items 11 and 12 of the citation
form, I find no specific mention of any such modifications on
the face of the order (Exhibit G-1). Mr. Brunatti explained
that he initially issued the section 104(a) citation, with a
moderate negligence finding, because he was led to believe by
mine management that another M.SHA inspector had previously
inspected the section under circumstapces similar to those
which prevailed at the time of his inspection but issued no
violation. Since the previous inspector did not believe that
there was a violation, Mr. Brunatti concluded that the respondent also did not know or believe that a violation existed.
Mr. Brunatti later changed his mind and modified the citation
to an order, and he did so after a telephone conversation with
Mr. Onuscheck, during which Mr. Onuscheck led him to believe
that there was some miscommunication between his off ice and
mine management, and after a telephone conversation with the
inspector who had been on the section previously indicated
that this was not so.
Although Mr. Brunatti ,stated on the face of his order
that MSHA inspectqrs had not been in the cited area prior to
his own observations, his testimony, which I find contradictory, is that the prior inspector had been on the section, but
only observed pillar mining taking place on the right return
side only, and that the left or intake side had not as yet
been developed or pillared. Further, the record in this case
is devoid of any testimony by Mr. Brunatti that he considered
the respondent's actions to be willful, or the result of indifference or a serious lack of reasonable care.
Mr. Brunatti confirmed that his inspection was a "ventilation technical inspection" to insure that any mining taking
place was in accordance with the respondent's approved plan.
He also confirmed that before embarking on such an inspection,
he reviews the mine file which contains all ventilation plans,
and that he was ,.fairly familiarov with the applicable plans
for the mine in question. Mro Brunatti confirmed that face
print drawing 11, exhibit R-2, was included as part of the
respondent 1 s ventilation plan Review #28, but he could not
state whether Part E, which contained the typical face print
and variation language, exhibit R-3, was a part of that Review
(Tro 80)o Upon subsequent examination of Review 28, which
Mro Brunatti had with him at the hearing, he stated that his
copy contained a different Part E, from the one introduced by
the respondent, and Mr. Brunatti concluded that it was not a
part of Review 28 on file with MSHA (Tr. 8l)o

2121

MSHA's district engineer Zilka, testified that he last
reviewed respondent's ventilation plan Review #28 in August,
1985, a year before the citation was issued, and he could not
recall whether Part E was in that file. Although Mr. Zilka
did not have the plan in his possession when he testified, he
confirmed that the plan in Mr. Brunatti's possession would be
the same one on file with his office (Tr. 150). Mr. Zilka
could not recall whether or not Part E was in the file that he
reviewed, and stated that if it was n·ot in Mr. Brunat ti's file
it would not be in the official file kept in his off ice at
Pittsburgh (Tr. 151).
In view of the obvious uncertainty as to whether or not
Mr. Brunatti and Mr. Zilka were even aware of the existence of
Part E, I issued a bench order instructing MSHA's counsel to
either take the posthearing deposition of an appropriate MSHA
official, or to otherwise confirm whether or not Part E was in
fact on file with MSHA's official approved ventilation plan
for the mine. By letter dated June 29, 1987, MSHA's counsel
confirmed that it was in fact a part of the applicable ventilation plan on file in MSHA's district office.
Based on the fqregoing, it seems obvious to me that
Inspector Brunatti and Mr. Zilka were not aware of the fact
that Part E of the respondent's ventilation plan, which contains some rather ambiguous language with respect to the use
of the term "typical systems of face ventilation used in the
mine," and seemingly permits some "variations" of the plans.
Given this language, Mr. Zilka conceded that it was possible
that the respondent may have misconstrued this language (Tr.
180). Mr. Zilka also conceded that some variation is permitted, and he cited as an example a variation concerning
"mining a certain block or mining the entries" (Tr. 155).
Inspector Brunatti alluded to a variation which would be
acceptable with respect to the "erection of the controls right
in the workinq section'" (Tro 90)o He also alluded to another
reasonable v~riation" or "reasonable approximations" from a
=•typical plan" concerning the positioning a continuous-mining
machine (Tr. 343).
Mr. Zilka confirmed that in an effort to reduce ~he
amount of paper work transmitted back and forth between ~SHA
and the respondent, MSHA requested the respondent to eliminate
those ventilation face prints which were not in active use,
and to resubmit them when they were to be used (Tr. 136).
Mr. Zilka also confirmed that he does not personally approve
or reject any mine ventilation plans, and that he simply makes
cecommendations.
He indicated that his recommendations are

2122

reviewed by two additional supervisors before they are submitted to the district manager, who then makes the final
decision as to approval or rejection of any particular plan
provision (Tr. 153). Mr. Zilka further conceded that with
respect to the submission of any ventilation plans, there are
often differences of opinions among those people involved in
the review process, and he confirmed that he did not discuss
face print drawing No. 11, exhibit R-2, which respondent maintains applied in this case, with Mr. bnuscheck prior to the
issuance of the violation, and that any such discussion came
later (Tr. 184-185). Inspector Brunatti testified that had
the respondent submitted a "reasonable approximation" of drawing No. 11, he would have accepted it. Since it was not, he
rejected it as being applicable to the conditions which he
observed (Tr. 343).
In what I consider to be a rather feeble rebuttal attempt
Zilka.to support his contention that his
prior conversations with respondent's repres~ntatives over
"many years" should have clearly put the respondent on notice
as to what was required to ..be in compliance at the time the
violation was iss1J.ed, Mr. Zilka explained certain differences
in single and double air splits. He conceded that this was
not relevant to the facts of this case, and that he only cited
it to bolster his contention that the respondent has been
informed that it cannot mix plans without submitting a plan
addendum (Tro 359). When Inspector Brunatti was called in
rebuttal after Mr. Zilka's testimony, he was asked whether he
agreed or disagreed with Mr. Zilka's explanations of single
and double splits of air. Mr. Brunatti admitted that while
listening to Mr. Zilka's explanation, he was not aware of
these distinctions, and was not aware of them at the time he
cited the violation. However, Mr. Brunatti then stated that
Mro Zilka was "totally rightQ" and made the comment "that's
why he's in Pittsburgh and I 1 m in the field office" (Tr. 371).
Respondentis ventilation engineer Ondecko was called to rebut
Mro Zilka's explanation of what constitutes single and double
splits of air, and he expressed total disagreement with
Mro ZilKa's analysis (Tr. 371-374).
on the part of Mr.

In a recently decided casev Jim Walters Resourcesf Inc.u
9 FMSHRC 903v 909, the Commission made the following·observations with respect to mine ventilation plans:
The Act and the mandatory standard requires the
Secretary and the operator to agree upon a ventilation plan.
It is of paramount importance
under the st~tute that both the Secretary and
the operator proceed diligently and in good

2123

faith to develop a conclusive and suitable plan
containing provisions clearly understood by
both. * * * It serves neither the safety of
the miners nor the policy of the Mine Act when
the Secretary and an operator are unable to
reach firm agreement on the meaning of a mine
plan provision even after several years of dealing with that provision. Given the importance
Congress attached to mine speciflc plans, we
emphasize that it is is incumbent upon the parties to adopt a more effective mechanism to
ensure that mine plans are expeditiously,
unambiguously and conclusively approved and
adopted.
(Emphasis Added).
On the facts of this case, although I have affirmed the
violation and have rejected the respondent's implied collateral estoppel defense theory that it could vary its ventilation face prints at its own discretion without prior approval
by MSHA, and reject any notion that the absence of any citations by other inspectors during prior inspections absolves
the respondent of any liability in this case, I nonetheless
conclude and find that MSHA has failed to present any credible
or probative evidence to establish that the violation resulted
from the respondent's unwarrantable failure to comply with
section 75.316.
MSHA's reliance on the testimony of Mr. Zilka, including
the asserted MSHA district policy since 1979, and certain
policy statements attributed to District Manager Donald
Huntley in support of said policy, in support of its conclusion that the respondent has had a long-standing clear understanding of the requirements of section 75.316, are rejected.
There is no evidence that MSHA's policy has ever been clearly
defined or reduced to writing, or that it was clearly incorporated by reference or otherwise ref erred to in any of the
plans or plan correspondence, and Mro Huntley was not called
by MSHA to testify in this case.
As for Mr. Zilka 1 s prior
contacts with the respondent, I find them to ~e rather general, undocumented as to any references to the specific issue
concerning the use of the terms "typical face ventilation
plans," and any "variations" from those plans. Further, based
;n my prior findings concerning Mr. Zilka and Mr. Brunattiis
testimony regarding their knowledge and understanding of these
particular plan provisions, I am convinced that they, as well
as the respondentv did not have a clear and unambiguous understanding as to how those particular provisions were to be
interpreted and applied in this case, particularly during the
period prior to the issuance of the violation, and that this

2124

mitigates the respondent's negligence. Under the ciccumstances, I find no reasonable or rational basis for concluding
that the violation resulted from the respondent's lack of
indifference, willful intent, or serious lack of reasonable
care. Accordingly, MSHA's assertion that the violation
resulted from an unwarrantable failure on the part of the
respondent IS REJECTED.
Modification of Order to Citations

In light of my foregoing unwarrantable failure findings,
the modified section 104(d)(2) order issued by Inspector
cannot stand.
It seems clear to me that under section 105(d)
of the Act, I have the authority after a hearing to aff irrn,
modify or vacate an order. See also Old Ben Coal Company,
2 FMSHRC 1187 (June 1980)~ Consolidation Coal Company,
3 FMSHRC 2207 (September 1981); Youngstown Mines Corporation,
3 FMSHRC 1793 (July 1981). Accordingly, the order in question
IS HEREBY MODIFIED to a section 104(a) citation.
Size of Business and Effect of Civil Penalty on the
Respondent's Ability to Continue in Business
Based on the stipulations of the parties, I conclude and
find that the respondent is a large mine operator and that
payment of the civil penalty assessment for the violation in
question will not adversely affect its ability to continue in
business.
History of Prior Violations

On the basis of the stipulations by the parties, and
given the size and scope of the respondent's mining operationsv I find no basis for concluding that the respondent's
compliance record is such as to warrant any additional
increase in the civil penalty assessment which I have made for
the ~iolation in question.
Negligence
I conclude and find that the violation resulted from the
respondent 6 s failure to exercise reasonable care, and that
this constitutes ordinary negligence on its part.

Gravity
For the reasons stated in my significant and substantial
finding, I conclude and find that the violation in question
was serious.

2125

Good Faith Compliance
The parties have stipulated that the violation was abated
by the respondent in good faith within the time fixed by the
inspector. I adopt this stipulation as my finding and conclusion on this issue.
Civil Penalty Assessment
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llO(i) of
the Act, I conclude and find that a civil penalty assessment
in the amount of $500 is reasonable and appropriate for the
violation which I have affirmed.

ORDER
The respondent IS ORDERED to pay a civil penalty assessment in the amount of $500 for a violation of 30 C.F.R.
§ 75.316, and payment is to be made to MSHA within thirty' (30)
days of the date of this decision. Upon receipt of payment,
this proceeding is dismissed.

Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Joseph Yuhas
PoO, Box 367

Joseph To Kosekv Esqs.p Greenwich Collieries,
Ebensburg, PA 15931 (Certified Mail)

/fb

2126

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

DEC 9 1987
RANDY ROTHERMEL/TRACEY
PARTNERS,
Contestant

CONTEST PROCEEDINGS
Docket No. PENN 87-121-R
Citation No. 2840770; 2/12/87

v.

Docket No. PENN 87-122-R
Order No. 2840771; 2/12/87

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

Docket No. PENN 87-124-R
Citation No. 2840772; 2/19/87
Tracey Slope

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

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 87-176
A.C. No. 36-01836-03524

v.
Docket No. PENN 87-235
A.C. No. 36-01836-03523

TRACEY & PARTNERS,
Respondent

Tracey Slope
DECISIONS
Appearances~

James P. Diehlu Esq., Williamsonu Friedberg &
Jones, Pottsville, Pennsylvania, for the
Contestant/Respondent;
Susan M" Jordanr Esq., Office of the Solicitor,
U.S. Department of Labor 9 Philadelphiau
Pennsylvaniau for the Respondent/Petitioner.

Before~

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern Notices of
Contests filed by the operator against MSHA pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 815Cd), challenging the legality of two section
104(a} citations and one section 104(b) order issued to the

2127

operator in February, 1987. The operator is charged with
alleged violations of section 103(a) of the Act, because of
its refusal to permit an MSHA inspector to conduct spot inspections pursuant to section 103(i) of the Act. A hearing was
held in Reading, Pennsylvania, and while the parties were
afforded an opportunity to file posthearing briefs, they have
not done so. However, I have considered the oral arguments
made by counsel on the record during the hearing in these
proceedings.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977,

30

u.s.c. § 301 et seq.

§

2. Sections 103(a) and Ci) of the Act, 30 U.S.C.
813(a) and (i); and section llOCi), 30 U.S.C. § 820(i).
3.

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

The issues presented in this matter include the
following:
1. Whether the operator violated section
103(a) of the Act by denying entry to the
inspector for the purpose of conducting a section 103(i) spot inspection, and if so, the
appropriate civil penalties to be imposed for
the violations.
2. Whether the facts and evidence adduced
in this matter support MSHA's contention that
the operator has not been subjected to any
illegal or discriminatory inspections pursuant
to section 103(i) of the Acto
3o Whether the facts and evidence adduced
in this matter support the operator's contention that no valid or legal basis exists at
this time for MSHA's continuing its mine on an
indefinite section 103(i) spot 5-day inspection
cycleo
4o
Whether the statutory language found
in section 103(i) of the Act with respect to an
occurrence of a methane ignition or explosion
"during the previous five years," automatically

2128

terminates MSHA's authority to keep the mine on
a 5-day spot inspection status at the expiration of 5 years, during which time no further
methane ignitions or explosions within the meaning of section 103Ci) have occurred.
5. Whether the aforesaid statutory language authorizes or requires MSHA to continue
its 5-day spot inspections of tha mine
ad _infinitum subsequent to the expiration of
5 years from the date of the methane ignition
and explosion which initially placed the mine
in that status.

6. Additional issues raised by the
parties are identified and disposed of in the
course of these decisions.
Stipulations
The parties stipulated to the following (Joint Exhib!t-2;
Tr. 7):
1. Randy Rothermel is the Managing
Partner of Tracey Slope.
2. The mine is subject to the Federal
Mine Safety and Health Act of 1977.
3. The presiding Administrative Law Judge
has jurisdiction over the proceedings pursuant
to section 105 of the Act.
4o
The citations, orders, and modificationsv involved herein were properly served by
a duly authorized representative of the
Secretary of Labor upon an agent of the operator at the dates, times, and places stated
therein, and may be admitted into evidence for
the purpose of establishing their issuance.

5" The parties stipulate to the authenticity of their exhibits but not to the relevance
or the truth of the matters asserted therein.
6. The operator had a multiple nonfatal
methane explosion accident at its Tracey Slope
Mine on February lOr 1982, which resulted in
serious injuries to three miners.

2129

7. Following this incident, the operator
was put on a 5-day spot inspection series under
section 103(i) of the Act by MSHA. The basis
for this action was that a 11 methane ignition or
explosion had occurred which resulted in
serious injury."
8. This mine has been subject to 5-day
spot inspections at irregular intervals since
that time.
9. There has been no methane ignitions or
explosions at this mine resulting in serious
injury since the accident on February 10, 1982.
The mine has not liberated "excessive quantities of methane" as that term is defined in
section 103(i).

10. on February 12, 1987, MSHA Inspector
Victor G. Mickatavage of the Shamokin Field
Off ice arrived at the mine to conduct a section
103(i) spot_ inspection. Mr. Randy Rothermel,
an owner of the mine, stated that he was denying entry to the mine to conduct a section
103Ci> spot inspection. Mr. Rothermel stated,
however 6 that he would permit any inspection
other than an inspection pursuant to section
103(i).
11. At 11:45 a.m., the MSHA inspector
issued Citation No. 2840770 under section
103(a) of the Act for the denial of entry,
allowing 45 minutes to abate.
120 At 12~30 Poffiog the MSHA inspector
issued a section 104(b) withdrawal orderv Order
Noo 2840771, under section 103(a) of the Act
for failure to abate Citation No. 2840770,
which order did not prohibit entry into the
mineo

13. On February 13, 1987, the MSHA
inspector returned to the mine and issued a
Modification to Citation Noo 2840770 and Order
No" 2840771v and entry to perform a section
103(i) inspection was again denied.

2130

14. On February 19, 1987, the MSHA inspector was again denied entry to the mine to conduct a section 103(i) spot inspection. The
MSHA inspector issued Citation No. 28040772 for
failure to comply with the section 104(b) Withdrawal Order No. 2840771 as modified
Order 2840771-01.
15. A letter dated September 15, 1986,
Exhibit "C-1," is a true and correct copy of a
letter sent by Randy Rothermel to the then
acting District Manager, Joseph Garcia, the
District Manager of Coal Mine Safety and
Health, District No. 1.
16. During the 24-months preceding the
date of the contested citations and order, the
operator received a total of 24 citations and
was subject to a total of 142 inspection days.
17. The operate~ is a small underground
anthracite mine operator, employing three to
five people underground, and two people on the
surface, and has an annual coal production of
approximately 4,000 tons (Tr. 33, 170).
Discussion
The citations and order issued in these proceedings, all
of which allege violations of section 103Ca) of the Act, are
as follows:
Section 104(a) non-"S&S" Citation No. 2840770,
February 12v 1987 (Docket Nos. PENN 87-121-R, and
PENN 87-235)0

On 2-12-87; Randy Rothermel, partner and
mine foreman, refused to allow Victor G.
Mickatavage, an authorized representative of
the Secretaryu entry into the Tracey Slope Mine
for the purpose of conducting an inspection of
the mine pursuant to section 103(a) of the Act.
Mr. Rothermel stated that the inspector
(Federal) could not enter the mine to conduct
the 103(i) inspection.
Section 104(b) "S&S" Order No. 2840771, February 12, 1987
(Docket No. PENN 87-122-R):

2131

Randy Rothermel, partner and mine foreman,
continued to deny Victor Mickatavage, authorized representative of the Secretary, the
right of entry into the Tracey Slope mine for
the purpose of conducting an inspection of the
mine in accordance with the requirements of
section 103(a) of the Act on 2-12-87 after the
expiration of a reasonable time allowed for
Mr. Rothermel to comply.
Section 104(a) "S&S" Citation No. 2840772, February 19,
1987 (Docket Nos. PENN 87-124-R, and PENN 87-176).
The operator failed to comply with 104Cb)
order of withdrawal No. 2840771 dated 2-12-87
and modified 2-17-87, issued for failure to
abate a 104(a) Citation No. 2840770 dated
2-12-87, issued to section 103(a) of the Act.
One gunboat of coal was observed being hoisted
from underground.
'

The essential fa~ts in these proceedings are not in dispute. On February 1~, 1982, at approximately 8:10 p.m., a
methane gas explosion occurred at the mine, and three laborers
working in the mine received burn injurieso As a result of
this incident, which occurred over 5-years ago, the mine operator has been subjected to spot inspections by MSHA once
during every 5 working days at regular intervals in accordance
with section 103Ci).
On February 12, 1987, the mine operator, believing that
MSHA's rights of inspection pursuant to section 103(i) had
expired and lapsed, denied entry to MSHA Inspector Victor
Mickatavage for purposes of conducting a section 103Ci) inspection, At the time of the denial of entryv the operator
advised the inspector that he would permit any form of inspection other than an inspection pursuant to section 103(i) of
the Act. As a result of the operator's failure to allow the
inspector entry to conduct a section 103Ci) inspection, the
inspector issued the citations and order in question.
During opening statements at the hearingu MSHA 1 s counsel
stated that the citations and order resulted from the operator1 s denial of entry to its mine by MSHA inspectors on different occasions. The inspectors sought entry for the purpose
of conducting section 103(i) inspections, and they did so in
the exercise of their right of inspection pursuant to section
103(a) of the Act. Recognizing the fact that MSHA's right of

2132

inspection may not be exercised illegally or in a discriminatory manner, counsel asserted that MSHA has an absolute right
of warrantless entry, and that the inspectors were attempting
to exercise that right pursuant to section 103(i). MSHA's
view of the issue presented in these proceedings is whether or
not the operator was being subjected to illegal or discriminatory inspections pursuant to section 103Ci> of the Act as
alleged by the operator.
MSHA's counsel pointed out that the operator contends
that the attempted section 103(i) spot inspections were
illegal because 5 years have passed since the operator was
initially put on notice that its mine was on a section 103(i)
spot inspection cycle because of a methane explosion which
resulted in serious injuries. Contrary to the operator's
contention, MSHA takes the position that there is no automatic
termination of section 103(i) spot inspections after the
passage of 5 years from the event which initially placed the
mine in that inspection posture. MSHA's position is that it
has discretion, based on the particular conditions present in
a mine, to determine whethe.~ or not the mine should exit qr
remain subject to ,continued section 103(i) 5-day spot inspections. MSHA asserted that its evidence establishes that the
decision to maintain the mine on the spot inspection cycle was
based on MSHA's continued fear of the presence of methane gas
in the mine. Under the circumstances, MSHA concludes that it
has acted well within its statutory authority to continue the
section 103(i) spot inspections to the present time (Tr. 8-9).
The operator's counsel stated that section 103Ci) sets
forth certain criteria for the conduct of spot inspections
every 5 days, namely; Cl) liberation of excessive quantities
of methane gas as that term is defined by the Act, (2) a
methane ignition or explosion resulting in death or serious
injury within the previous 5 yearsp or (3) the existence of
other hazardous mine conditionso Counsel contended that in
the case at hand, the only mining activity tested during any
of the section 103(i) inspections was a test for methanev and
on one occasion, ventilation testing. Counsel asserted that
the sole purpose advanced by MSHA to the operator for its
desire to conduct the inspections was the opinion by MSHA 1 s
district office that it could continue its inspections without
any of the necessary criteria found in section 103(i) of the
Act.
Counsel pointed out that it is uncontroverted that the
operator has allowed MSHA entry to its mine for the purpose of
conducting any other type of inspections, including regular
spot inspections, and has only resisted MSHA's attempts to

2133

continue with section 103(i) spot inspections every 5 days.
Counsel contended that the mine has been subjected to
142 inspection days in a period of less than 24 months, and
that taking into account the number of days the mine has been
closed, MSHA's inspections have amounted to a substantial
interference with the operator's mining activity (Tr. 9-11).
Counsel stated that by letter dated September 15, 1986,
(Exhibit C-1), the operator wrote a letter to MSHA's Acting
District Manager, Joseph Garcia, Wilkes-Barre, Pennsylvania,
advising him of all of the facts incident to the prior methane
ignition which triggered the 5-day spot inspection cycle, and
requesting a ruling as to whether or not the mine could be
removed from its spot inspection status, but that the letter
remains unanswered. Counsel suggested that since MSHA did not
respond to the operator's letter, it believed that the only
way it could resolve the question was to create a circumstance
under which a violation would be issued, thereby providing a
forum in which to decide the propriety of the section 103(i)
spot inspections (Tr. 11).
Conceding that U1_e operator's letter was not answered,
MSHA's counsel asserted that while no formal response was
forthcoming, numerous meetings have been held between MSHA
personnel and the operator to discuss the matter, and that
these discussions would constitute a verbal response to the
operator's letter (Tr. 11). MSHA's Shamokin Area Field Office
Supervisor James Schoffstall confirmed that Acting District
Manager Garcia has since returned to his regular duty station
in the Pittsburgh area, and that the operator's letter may
have been mislaid or misrouted. Mr. Schoffstall confirmed
that he has not seen the letter, and the operator's counsel
confirmed that there was some dialogue between Mr. Randy
Rothermel, the operator, Mro Schoffstall, and the inspector,
but that no responsive written reply has ever been received by
Mr. Rothermel with regard to his letter (Tr. 14-15).
Mr. Schoffstall also confirmed that he has consulted with his
supervisor in the district office, Edward Connor, Acting
District Manager, who in turn consulted with MSHA's headquarters in Arlington, Virginia, and that Arlington's answer "was
that this five years is a minimum, and there is no time limit"
(Tr. 16).
MSHA 1 s counsel confirmed that MSHA still has under consideration the seeking of a court injunction to allow it to gain
entry to the mine for the purpose of continuing its section
103(i) spot mine inspections every 5 days, but that it has not
done so as of the time of the hearingo Counsel pointed out
that the violations in issue in these proceedings were abated

2134

after a period of time when the operator permitted entry to
the inspectors for the purpose of conducting section 103(i)
spot inspections, and that MSHA abandoned any recourse to
injunctive action. Howeverv the operator has again started to
turn away its inspectors; and injunctive relief is again being
considered by MSHA. The operator's counsel confirmed that
this was true, but stated that the operator is no longer
permitting entry to the inspectors because of the instant
litigationf and MSHA's counsel confirmed that another series
of citations are likely to be issued because of the operator's
renewed and continued refusal to permit section 103Ci) spot
inspections (Tr. 12-14}.
MSHA's counsel confirmed that the operator at the present
time is not only refusing entry for spot inspections, but is
also refusing any type of entry to MSHA inspectors, even for
regular inspections. The operator's counsel asserted that "we
are not working the mine" (Tr. 17).
MSHA's Testimony and Evidence
James E. Schoffstall, Supervisor, MSHA District No. 1
Shamokin Field Office, confirmed that he has been in that position since November, 1980, and that his duties include the
supervision of a staff of 13 MSHA inspectors. He testified as
to his background and experience, including the management of
two mines as a superintendent, and he confirmed that he holds
mine foreman papers issued by the State of Pennsylvania (Tr.
19-22).
Mr. Schoffstall confirmed that the mine in question has
been within his enforcement jurisdiction since February, 1985,
when it was taken over from MSHA's Pottsville or SchuylkillHaven off iceo He confirmed that he has been in the mine
numerous times, and that he was familiar with the citations
and orders issued
MSHA Inspector Victor Mickatavage (joint
exhibit-l)o Mro Schoffstall confirmed that he discussed the
circumstances surrounding the issuance of the violations with
Inspector Mickatavagev who works under his supervision, and
that Mro Mickatavage issued the violations because he was
denied entry to the mine for the purpose of conducting section
103(i) inspectionsv and was hindered in his attempts to conduct the inspections (Tro 22-24)0
Mro Schoffstall confirmed that the mine is also subject
to annual and quarterly inspections, including follow-up
inspections in connection with the issuance of any citations
or orders. He also confirmed that the mine became subject to
the section 103(i) spot inspections after a multiple nonfatal

2135

methane explosion accident which occurred at the mine on
February 10, 1982, and he identified exhibit G-1 as the
official MSHA accident investigation report of that incident
which"he obtained from MSHA's District No. 1 office in
Wilkes-Barre (Tr. 25).
Mr. Schoffstall was of the opinion that section 103(i)
was enacted "for the sole reason of troubled mines. Mainly,
Number 1, was excessive amount of gases; Number 2, if a mine
experienced an explosion; and then also you have another category for special hazards" (Tr. 34). He also believed that
section 103(i) mandates that inspections "be made under periodic time limit," namely once every 5-working days at irregular intervals in this case, "to see that they are complying
with the law, and to see that the conditions are being
controlled" (Tr. 36).
With regard to the language of section 103(i) concerning
methane or other gas explosions which have resulted in death
or serious injury during the previous 5 years, Mr. Schoffstall
was of the view that this stated time frame is a minimum ,
amount of time that the mine must be placed on the section
103 ( i ) spot inspectio-n- eye le, and that it is not a maximum
time limitation. Mr. Schoffstall was of the further view that
MSHA could continue its section 103(i) spot inspections if it
"feels that the mine is on the borderline or it is subject to
a condition happening again in that mine" (Tr. 36).
Mr. Schoffstall confirmed that since the 1982 ignition,
the mine experienced another methane ignition in 1985 in the
Number 4 Level West Gangway Section where some methane was
ignited as a cut of coal was fired from the base.
That ignition did not result in any injuries or death, and the incident
was investigated by MSHA's Pottsville office (Tro 40)0 He
identified exhibit G-2 as a copy of the official MSHA investigation report of that incident (Tr. 43)0
Mro Schoffstall confirmed that he considered
Mr. Rothermel 1 s verbal requests made to Inspector Mickatavage
2 or 3-weeks prior to the denial of entry to be removed from
the section 103(i) spot inspection series because the 5-year
period has expired. Mro Schoffstall stated that after discussing the request with his superiors, "we feel that the mine
still should be considered within the 103Ci) category."
Mr. Schoffstall stated that the reasons for this included "the
condition that the mine is in with the unlimited amount of
ventilation, and the irregularity of the ventilation--and
also, the immediate area where they are now working has a condition of roof control along with a new area that they intend

2136

to development which is to the east which allows an additional
taxation on the ventilation system" (Tr. 50-51).
Mr. Schoffstall confirmed that the decision to deny
Mr. Rothermel's request to be removed.from the section l03(i)
spot inspection cycle was a "joint decision" made by himself,
Acting District Manager Edward C. Connor, and Inspector
Mickatavage, and that the decision was communicated verbally
to Mr. Rothermel who was "basically" informed of the reasons
for the decision (Tr. 51-53). MSHA's counsel confirmed that
the decision in question was not formalized in writing, and
Mr. Schoffstall confirmed that his office has never informed
an operator in writing that he would be removed from any
section 103(i) inspection cycle because MSHA has never been
challenged in this regard (Tr. 51-54).
Mr. Schoffstall stated that three other mines in his
district are presently on a section 103(i) spot inspection
cycle, for reasons other than a methane ignition, and that two
mines are on that cycle because of impounding water (Tr. 55).
In the instant case, Mr. Schoffstall could think of no reason
why the operator has not been advised in writing as to the
specific reasons why MSHA is keeping him on the section 103(i)
spot inspection cycle (Tr. 56), and that "we've never done it
any other way in the district except verbally" (Tr. 57).
Mr. Schoffstall stated that immediately after the denial
of entry in this case, a meeting was held in MSHA's office
with the operator's counsel Diehl present, and the matter was
discussed. At that time, Mr. Rothermel was advised of MSHA's
decision to keep the mine on a section 103(i) cycle (Tr. 61).
Mr. Schoffstall could not confirm whether Inspector
Mickatavage informed Mr. Rothermel of these reasons during
their discussions prior to the refusal of entry (Tro 61).

Mro Schoffstall testified to the specific reasons previously alluded to as to why the decision was made to keep the
mine on the section 103(i) cycle. Referring to a mine map
(exhibit G-7), he alluded to certain air measurements made
during past inspections, some purported roof problems necessitating retimbering, and an unplanned roof fall within the past
4 months in an escape route. He believed that any roof fall
in either the main intake or return presented the possibility
of blocking the entrance and possibly restricting ventilationo
Howeveru he confirmed that the unplanned roof fall was
addressed by developing a new area to go around it, and that
no injuries resulted from that fall (Tr. 61-65).

2137

Mr Schoff stall furtht:r 2.lluded t.o a.1r measurements taken
along the haulage slope indicating 8 to 10 thousand cubic feet
of air in the main intake and return resulting from air
short-circuiting through some old stoppings, and other areas
of possible air leakage through an area which is planned for
developrnc:"'::. u1 an easterly direction. He also alluded to citations which were issued for air leakage through some temporary
stoppings, and indicated that the air at that location was
"just a minimal amount" to meet the requirements of the law
(Tr. 66).
0

Mr. Schoffstall discussed the operator's intentions to
install overcasts at the gangway level as it developed to the
east, and he indicated that this may place an additional
burden on the ventilation system caused by air leakage which
may be created by crosscuts and openings which need to be
stopped off (Tr. 67). In response to questions concerning the
operator's intentions to mine to the east, Mr. Schoffstall
confirmed that the operator is required to file ventilation
plan changes as it develops or anticipates to develop new mine
areas, and he confirmed that a new ventilation plan has b~_en
filed. He also confir..med that in this case, MSHA has approved
the operator's ventilation plan to meet the minimum standard
of 3,000 cubic feet of air at the face, and 5,000 at the last
open crosscut (Tr. 68). However, he indicated that MSHA is
not certain whether the existing ventilation system is enough
to cover the area being developed to the east, and that this
is part of the reasons why it wants to keep the mine on a
section 103(i) inspection cycle (Tr. 68).
Mr. Schoffstall confirmed that MSHA wishes to keep the
operator on the section 103(i) inspection cycle in the newly
developed area because of its "pending development." He
conceded, however, that MSHA will still have to review the
adequacy of the ventilation in 3 or 6 months intervals? and he
conceded that such an evaluation of the ventilation could be
done independently of any section 103(i) inspection. He
further conceded that if the mine had not experienced a prior
methane ignition, any perceived ventilation problem would not
necessarily be reason enough to place the mine on a section
103(i) inspection cycle (Tr. 69)0
He confirmed that the mine
is located in a gassy vein, and that coupled with the asserted
bad roof, these conditions are inherent to the mine (Tro 70).
Mr. Schoffstall confirmed that while he believed that the
mine has a "borderline" ventilation system, MSHA nonetheless
has approved the ventilation plan, and keeping the mine on a
section 103(i) inspection status will facilitate MSHA's monitoring of the ventilation (Tr. 73).

2138

In further explanation of the decision to keep the mine
on a section 103Ci) inspection cycle, Mr. Schoffstall stated
as follows (Tr. 75-76):
A.
Okay. The basis was, Number 1, was the
ventilation system, the irregularities of the
ventilation system; the problems that they were
having with the roof control, holding the
return entries open; and the constant pressure
on the main intake; 3, was the ventilation
system to the east, will it be effective enough
to be able to liberate the methane that they're
going to encounter; and Number 4 is, that
they're going towards an uncharted area that's
filled with water, which we will require a bore
hole plan.
JUDGE KOUTRAS:

A bore hole plan?

THE WITNESS: Yes.
In other words, when they
get within two hundred feet of the uncharted
workings that we have no mapping on, then they
must start drilling in advance to locate this
water.
BY MS. JORDAN:
Q.

If it --

JUDGE KOUTRAS: But, that would be required,
independent of any 103(i)?
THE WITNESS: That's right.
special inspectiono

*

That will go under

*

*

*

A. All right. What it is is the inconsistency
of the ventilation puts a borderline on the
amount of ventilation available at the working
faces to sweep away the noxious gasses.
Number 2v is the possible blockage, due to an
unplanned roof fall in the returns could cause
a restriction of ventilation, that would also
cause a buildup of methane at the faces.
And,
then the area in which they 1 re going to tax
additional efforts out of the ventilation
system to the east, all in conjunction with it

2139

puts the mine at an area where we feel it's
borderline as to the abilities of keeping the
faces clean of methane.
Mr. Schoffstall identified and reviewed copies of citations issued to the operator for violations of the roof
control requirements of mandatory safety standard section
75.200, the ventilation air requirements of section 75.301,
and the ventilation plan requirements·-of section 75.316
(exhibits G-3 through G-5, Tr. 87-94; 98-102; 117-118;
119-122).
Mr. Schoffstall confirmed that he did not issue any of the
citations, and that he was not present when they were issued
(Tr. 122-123). He also confirmed that he retrieved the copies
from MSHA's files in response to the operator's prehearing
interrogatories, and while he may have previously reviewed the
citations after they were issued as part of his supervisory
duties, he would only have reviewed those issued by Inspectors
Donn Lorenz and Victor Mickatavage, from his Shamokin office,
but not those issued by inspe~tors from MSHA's Pottsville,.
office (Tr. 124-125>.~ He confirmed that the citations in question have all been abated (Tr. 155).
Mr. Schoffstall further confirmed that when he assembled
the copies of the prior citations, he did not include copies
of any extensions which may have been issued, nor did he
include copies of any abatement or termination notices unless
the abatement was shown on the face of the citation itself
(Tr. 144). MSHA's counsel stated that any terminations and
extensions relevant to the citations were included with her
responses to the operator's discovery requests, and that they
are a matter of record (Tr. 146-147).
On cross-examination, Mro Schoffstall reiterated that he
not conduct any of the prior inspections or issue any of
the citations previously referred to. With regard to any
methane tests conducted in the mine; Mr. Schoffstall confirmed
that he has never personally conducted any such tests, but has
accompanied an inspector when he did it. With regard to his
prior testimony speculating to a 50 percent loss of air in the
ventilation circuit, Mr. Schoffstall conceded that he performed no test to support any such statement (Tr. 154-155}.

d

M.r" Schoffstall confirmed that he was present at a conference
counsel Diehl during which he stated to counsel that
the sole basis for the section 103Ci) inspections was the
prior methane ignition which resulted in injury to two men.
When asked whether that was still his position, Mr. Schoffstall

2140

responded "Because of the explosion, because of the conditions
of the explosion, yes" (Tr. 154-155). With regard to the 1985
ignition incident, Mr. Schoffstall confirmed that it was
reported to MSHA by the operator (Tr. 158).
Contestant's Testimony and Evidence
Randy Rothermel, the operator of the mine, confirmed that
MSHA Inspector Victor Mickatavage was -at the mine on
February 12, 1987, and requested entry for the purpose of conducting a section 103Ci) inspection. Mr. Rothermel acknowledge that he informed the inspector that he could conduct any
other kind of an inspection except for a section 103(i) inspection. As a res~lt of his refusal to permit the inspector to
conduct a section 103(i) inspection, the inspector issued him
a citation, but did not prohibit him from proceeding with his
mining activities (Tr. 160-161). At the expiration of a half
an hour, the inspector then served him with an order, and that
too did not prohibit him from continuing with his mining activities. He received another order some 5 days later (Tr. 162).
Mr. Rothermel confirmed that he had written a letter to MSHA's
Acting District Manager Gardia approximately 4 to 6 months
earlier, but has t~ceived no response from Mr. Garcia or anyone else (Tr. 163).
On cross-examination, Mr. Rothermel acknowledged that he
has often discussed with MSHA inspectors, including
Mr. Mickatavage, the matter concerning section 103Ci) inspections, and that they never advised him that he could not at
the present time be removed from the section 103{i) spot
inspection cycle. When asked what the inspectors may have
told him, Mr. Rothermel responded "They said, if you think
that's the law, you have to fight it.
So that's what we're
doing here today~ (Tr. 164).
In response to further questions, Mr. Rothermel stated
that he was prompted to write h
letter after first receiving
a copy of the Act, and that prior to that time 11 1 didn't know
what a 103Ci) was." In addition, he stated that he spoke with
Mr. Garcia by telephone before writing the letter, and that
Mr. Garcia told him to write to him.
His refusal to permit
the inspector to conduct a section 103(i) inspection was based
on the fact that he received no response to his letter
(Tr. 165-166).
Mr. Rothermel stated that another mine operator who operates a mine adjacent to and behind his (Wolfgand Brothers),
was in a section 103Ci> inspection status for 7 years for
experiencing the same type of ignition as that which occurred

2141

in his mine, but was taken off by MSHA. Since that operator
was taken off, Mr. Rothermel acknowledged that his curiosity
was a(oused as to why his mine was still in a section 103Ci)
status (Tr. 167). Mr. Rothermel indicated that the adjacent
mine operator was taken off after he wrote his letter to
Mr. Garcia (Tr. 168). After consulting with Mr. Schoffstall
at counsel table, MSHA's counsel confirmed that the mine
operator referred to by Mr. Rothermel was in fact in a section
103(i) status, but was removed after~ years (Tr. 167).
Mr. Rothermel stated that his mine has operated on an
average 4-day weekly basis for the past 5 years, and that he
spends approximately 4 hours a week with a Federal inspector
during a section 103(i) inspection. He also stated that his
mine has been subjected to four AAA.regular MSHA inspections,
and that the time spent on those· inspections ranged "from four
days straight, to some mix with the AAA or the 103(i)" (Tr.
169). He estimated that during each work week, he has had one
and a half-days of inspections (Tr. 169).
Mr. Rothermel stated that the section 103(i) inspect~ons
have interfered with~his operation of the mine, and he
explained as follows at (Tr. 170-171):
THE WITNESS: With only three to five guys
there, one guy is with an inspector, well,
there's only two working, and I'm usually the
guy, and I'm the foreman to start with. It
usually consists of going out of the mine,
talking to an inspector, seeing what he wants
to see, or whatever, then we go down. The
inspection actually lasts maybe a half an hour.

*

*

*

*

*

THE WITNESS~
It's not only the inspections
themselvesf there's so much other business to
go with it" Roof control plans, ventilation
plans, all kinds of other stuff, it's really
getting to be time consuming"
JUDGE KOUTRAS~
state?
THE WITNESS~
JUDGE KOUTRAS~
inspection ~-

Are you also regulated by the
Yeso
Are you on any kind of a spot

2142

THE WITNESS:

No.

JUDGE KOUTRAS:
THE WITNESS:
months.
JUDGE KOUTRAS:
months.
THE WITNESS:

cycle with the state?
One inspection day every two
One inspection day every two
Yes.

Mr. Rothermel confirmed that although the mine works
4 days a week, people may be at the site on the other 3 days
running pumps, cutting timber, or doing repair work. In 1984,
at the time some of the citations were extended, the mine
worked 2 days a month, and an inspector was there on each day.
During regular inspections when an inspector is there for four
straight days, he usually spends 3 days underground and 1 day
doing surface inspections or reviewing mine records. On some
AAA inspections, an inspector may be at the mine for 6 days in
a row, or less, in order to complete the inspection (Tr.
172-176).
Mr. Schoffstall was recalled by the Court to explain the
circumstances under which the other mine operator ref erred to
by Mr. Rothermel was taken off the section 103(i) cycle, and
he testified as follows (Tr. 177-178):
THE WITNESS: All right. The operator had a
ventilation and gas liberating mine which was
put on, initially, because of an explosion.
The operator requested that he be taken off,
you know, which is the same thing Mr. Rothermel
had done" We reviewed
We reviewed the
circumstancesu and we recommended he be taken
off because the conditions in the mine had
changed. He had adequate air. He didn't have
the methane liberations any more at the face
areaso Sov we felt it secure. We were very
comfortable in taking him off the 103(i)o
JUDGE KOUTRAS~ What distinguishes that case
from this one in your mind?
THE WITNESS~ Well 0 actually, two things. The
liberation content" They dropped their liberation content. They went into another section
of the mine and lost their methane. They

2143

didn't have near the amount of methane being
liberated out of that mine as to what they did
prior. Number two was, they had established a
better airway system and a better ventilation
system.
In other words they were on a retreat,
a mining process which didn't involve as much
face ventilation as what they had prior. And
we seen no reason, the roof was good, their
ventilation was good, and we seerr no reason to
keep them on.
JUDGE KOUTRAS: Do you know what the frequency
of their citations has been since they were
taken off?
THE WITNESS:
I would say a normal small mine,
not that many. I couldn't count as number-wise,
but I would say very few.
JUDGE KOUTRAS: How do they compare in size to
this operator, do yo~ have any idea?
THE WITNESS!
JUDGE KOUTRAS:

About the same size.
About the same size.

THE WITNESS: This mine here is developed a
little bigger.
It's more to maintain than what
they have. They're not down as deep or
extended as far.
But, size-wise, manpower
about the saipe.
Findings and Conclusions
Section 103Ci) of the Act provides as

follows~

Whenever the Secretary finds that a coal or
other mine liberates excessive quantities of
methane or other explosive gases during its
operationv or that a methane or other gas ignition or explosion has occurred in such mine
which resulted in death or serious injury at
any time during the previous five years, or
that there exists in such mine some other
especially hazardous conditionr he shall provide a minimum of one spot inspection by his
authorized representative of all or part of
such mine during every five working days at
irregular intervals. For purposes of this

2144

subsection, "liberation of excessive quantities
of methane or other explosive gases" shall mean
liberation of more than one million cubic feet
of methane or other explosive gases during a
24-hour period. When the Secretary finds that
a coal or other mine liberates more than
five hundred thousand cub\c feet of methane or
other explosive gases during a 24-hour period,
he shall provide a minimum of one spot inspection by his authorized representative of all or
part of such mine every 10 working days at
·
irregular intervals. When the Secretary finds
that a coal or other mine liberates more than
two-hundred thousand cubic feet of methane or
other explosive gases during a 24-hour period,
he shall provide a minimum of one spot inspection by his authorized representative of all or
part of such mine every 15 working days at
irregular intervals.
Although section 103(.;t) of the Act gives MSHA a righ~ of
entry to the mine_ for inspection purposes, it seems clear to
me that MSHA 1 s authority to conduct spot inspections every
5 days pursuant to section 103(i) is subject to the following
limitations:
--- a mine which liberates excessive quantities
of methane or other explosive gases during its
operations, namely, more than one million cubic
feet of methane or other explosive gases during
a 24-hour period.
--- a mine which has experienced a methane or
other gas ignition or explosion resulting in
death or serious injury at any time during the
previous five years.
--- a mine where there exists some other
especially hazardous condition.
Section 103(a) of the Act requires the Secretary to
"develop guidelines for additional inspections of mines based
on criteria including 1 but not limited to, the hazards found
in mines subject to this Act, and his experience under this
Act and other health and safety laws." The only relevant
guidelines that I can find with respect to the interpretation
and application of the spot inspection requirements of section
103(i) of the Act, are those found in Volume 1, page 17, of

2145

the secretary's Coal Mine Inspection Manual, effective
November 1, 1982, which states as follows:
Spot inspections made relative to Section
103(i) should be made with respect to the
hazard(s) that caused the mine to be placed in
this category. For example, if the mine is
being inspected because there exists some
"other especially hazardous condi-tions(s},
such as serious problems with the haulage
system, then the inspection activities should
be directed toward the haulage system.
11

The operator wrote a detailed letter to MSHA's Acting
District Manager Joseph Garcia, Wilkes-Barre, Pennsylvania, on
September 15, 1986, some 6 months before its refusal of entry,
requesting MSHA to consider removing the mine from the section
103(i) spot inspection cycle. In support of its request, the
operator asserted that during the past 4 years its ventilation
system had greatly improved, greater quantities of air were
being generated at working faces, and that recent testing,by
MSHA inspectors indicated that at the maximum there was
87, 000 cubic feet of .. methane liberated in a 24-hour period at
the mine. The letter was not answeredo
MSHA's Shamokin Field Office Supervisor Schoffstall
testified that he did not see the letter and speculated that
it was either mislaid or lost. I would venture a guess that
Mro Schoffstall did not see the letter because he was in
Shamokin and Mr. Garcia was in Wilkes-Barre. Mr. Schoffstall
confirmed that he "basically 11 verbally informed Mr. Rothermel
of his decision not to remove the mine from the 5-day inspection cycler and that his office has never informed a mine operator in writing of such decisions because MSHA has never been
challenged in this regard in the past" Mro Schoffstall also
confirmed that he consulted with his supervisorv who in turn
consulted with MSHAis headquartersv and apparently received a
brief oral opinion by telephoneo While I find this advisory
process to be rather loose, it is apparently in keeping with
the theory that nothing is reduced to writing for fear of
challenge" However 8 I believe that MSHA has a responsibility
and obligation to respond in writing to an operatorus request
of this kindv and its failure to do so prompted the operator
here to take a stand and initiate the litigation in question,
Mr" Rothermel indicated that he was prompted to write the
letter in question when he learned that another mine operator
near his operation who had been in a section 103(i) spot inspection status for 7 years after experiencing a gas explosion was

2146

taken off that status after writing to MSHA requesting that
this be done. Mr. Schoffstall confirmed that this was true,
and he explained that MSHA terminated the spot inspection
status of that mine after reviewing the circumstances and finding that the mine conditions had changed. The changed conditions included a reduction in the amount of methane liberated
at the face areas and the establishment of a better airway and
ventilation system. Mr. Schoffstall was of the opinion that
these two factors distinguishes Mr. Rothermel's mine from his
neighbor's mine.
I take note of the fact that MSHA's report of investigation concerning the February 10, 1982, methane ignition concluded that the accident occurred because of the operator's
failure to follow proper blasting procedures, which contributed to the ignition source, and that it failed to follow
proper ventilation practices which permitted an explosive
mixture of methane to accumulate in the accident area. Other
contributing factors noted by MSHA included the failure to
install adequate ventilation controls, such as an overcast,
regulators, and stoppings, to direct the intake air curreQt,
and the failure to properly'check for methane before blasting
(Exhibit G-1, pag~~6).
Assuming the correctness of MSHA's position that the
passage of 5 years without an ignition or explosion resulting
in death or serious injury does not automatically terminate
its discretionary right to continue to inspect the mine every
5 days, MSHA nonetheless recognizes the fact that its continued inspections must be based on the particular conditions
present in the mine.
In this case, MSHA has taken the position that it must continue to exercise its perceived discretion to continue to conduct spot inspections every 5 days
because of its continued fear of the presence of methane gas
in the mine"
The record in this case reflects that during MSHAus
investigation of the ignition which occurred in 1982, the operator was cited for a violation of section 75.309(b), after
SoO percent methane was detected in a return split of air, and
was also cited for having an inoperative methane detectoro
Howeverff there is no evidence that the operator has ever been
cited for violations of any of the mandatory safety standards
dealing with weekly examinations for hazardous conditions
(75.305); weekly ventilation examinations (75.306); methane
examinations (75.307); methane accumulations in face areas
(75.308), and methane monitors (75.313).

2147

In the course of opening arguments, the operator's
counsel asserted that subsequent to the February 10, 1982,
incident which placed the mine on a 5 day section 103(i) spot
inspection cycle, the only mining activity tested during any
of the subsequent 103(i) inspections was one test for methane,
and one occasion when the ventilation was tested.
MSHA has stipulated that no methane ignitions or explosions resulting in serious injury have occurred in the mine
since the ·accident of February 10, 1982, and that the mine has
not liberated "excessive quantities of methane" as that term
is defined by section 103(i). Further, in response to the
operator's discovery requests with respect to any tests performed showing the presence of exces~ive quantities of methane
or other explosive gases in the mine, MSHA responded as
follows at page 2 of its May 7v 1987, responses:
--- There is no record of methane liberations
of more than 1,000,000 cubic feet in 24 hours.
--- There is no record of methane liberations
of more than 500,000 cubic feet in 24 hours.
With respect to the answer to an identical question concerning the presence of methane liberation of more than
200,000 cubic feet in 24 hours, MSHA made reference to an
analysis of air samples collected on February 11, 1982, as
part of its investigation of the methane ignition which
occurred on February 10, 1982. That report reflects a methane
liberation level of 237,000 cubic feet in 24 hours on that
day, and 4.98 percent methane. Copies of the results of additional bottle samples apparently collected by MSHA during its
investigation during February 11 through 19, 1982, reflect
methane levels of 0.13, 0.04, 1.34, 0.35, 0.46, 0.15, 0.34,
Oo38, 0.20, 0.37 0.33u 0.18c and 0.41 at the places tested.
The only evidence of any face ignitions which have
occurred at the mine subsequent to February lOu 1982, is an
incident which occurred on July 23, 1985, and the details are
discussed in an MSHA Memorandum of July 26, 1985 (exhibit G-2).
The facts show that the ignition which was reported by the
operatorv did not result in any death or serious injury, and
MSHA concedes that this ignition incident is not within the
statutory definition of 11 ignition or explosion" found in
section 103(i), and that such an occurrence, standing along,
would not trigger a section 103(i) spot inspection cycle.
MSHA 0 s memorandum report of this incident reflects that a citation was issued pursuant to section 75.301 for inadequate face
ventilation, and the record reflects that the operator took

2148

irrunediate action to abate the violation. The memorandum also
reflects the presence of .6 percent methane at the face, and
that all ventilation controls were in compliance with MSHA's
regulations. The test results taken to support the citation
reflected .23 percent methane in the immediate return off the
face, and .10 percent methane in the main return.
It also
reflects 17,000 cubic feet of methane liberation in 24 hours
at the first noted return location, and 43,000 feet at the
second.
Mr. Schoffstall confirmed that the mine does liberate
methane. However, this is true of practically all underground
coal mines. MSHA has concluded that the mine has an ongoing
problem with methane liberation in the mine, yet the only
witness it presented was Mr. Schoffstall. Except for two air
measurements taken in October, 1986, and one air sample taken
in March, 1987, there is no credible evidence in this case
that MSHA has ever conducted a detailed methane or ventilation
system survey at the mine to support its generalized and
speculative conclusions that methane liberation is in fact a
hazardous problem in the mine. Mr. Schoffstall admitted ~bat
MSHA has not monitored- the min'e to find out how much methane
has been liberated i~ the mine (Tr. 140).
In view of the foregoing, and for the reasons discussed
in my findings and conclusions which follow, I conclude and
find that MSHA has failed to present any credible probative
evidence to support a conclusion that the mine has any ongoing
hazardous methane problems warranting mine inspections every
5 days pursuant to section 103(i} of the Act.
Although MSHA's counsel confirmed that MSHA's reason for
keeping the mine on a 5 day section 103(i) inspection cycle is
out of concern for the presence of methane in the mine,
counsel indicated that the general mine problems as evidenced
by the abated violations which have been introduced in this
caseg generally constitute ''other especially hazardous conditions11 which impact on the presence of methane in the mine
(Tr. 95}. A discussion of these alleged hazardous conditions
followso
The record in this case establishes that from February lOu
1982r the date the mine was placed on a section 103{i) 5-day
inspection statusu until Februaryu 1985F a period of 3 years,
the mine was under the enforcement jurisdiction of MSHA's
Pottsville or Schuylkill-Haven Field Office, and that for the
past 2 yearsu it has been under the jurisdiction of
Mr. Schoffstallis Shamokin Field Office.

2149

MSHA presented no testimony concerning the prevailing
mine conditions during the 3-year period that the mine was
inspected before Mr. Schoffstall's office assumed jurisdiction
of the mine. The only "evidence" produced by MSHA covering
that period of time was a copy of a section 104(a) citation
issued on June 6, 1984, for a roof control violation, and a
citation issued on June 7, 1984, for a violation of section
75.1704, for failure to install ladders at an escapeway
(Exhibits G-3 and G-6). MSHA produced none of the inspectors
who issued these citations.
With regard to MSHA's inspection and enforcement actions
subsequent to February, 1985, MSHA produced copies of nine
section 104Ca) citations issued during the period March 3,
1985 through October 22, 1986, for violations of the roof control requirements of section 75.200 (exhibit G-3); six section
104(a) citations issued during the period July 23, 1985 through
August 14, 1986, for violations of 75.301, because of inadequate air ventilation in the last open crosscut (exhibit G-4);
two section 104(a) citations issued on April 10 and August 14,
1986, for violations of sectipn 75.316 because of missing,permanent stoppings (exhibit G-5); and four section 104Ca) citations issued during March 10, 1985 through October 16, 1985,
for violations of section 75.1704, because of failures to provide ladders at certain escapeway locations, and failure to
clean up debris from escapeways (exhibit G-6). One section
104(b) order was issued on March 10, 1986, for failure to abate
an escapeway violation which was issued on June 7, 1984
(exhibit G-6).
MSHA also failed to produce for testimony any of the
inspectors who issued the post-February, 1985, citations.
However, I note that in each instance, the inspectors made
gravity findings of "reasonably likely," and negligence findings ranging from "moderate" to "low" on the face of the citation forms.
Furtherv although Mro Schoffstall reviewed and
identified the citations during the course of the hearing, he
conceded that he did not issue any of the citations, and that
he was not present during any of the inspections which
resulted in the issuance of the citations~ Consequentlyv MSHA
has presented no credible or reliable probative testimony concerning the prevailing mine conditions at the time these citations were issuedo
I have reviewed the copies of the abatement and termination notices concerning all of the aforementioned citations
which MSHA produced in response to the operator's pretrial
discovery requests, and I find that with the exception of the
one section 104Cb) order for failure to abate a violation of

2150

section 75.1704, which MSHA had extended for over a year and a
half, all of the remaining violations were timely abated
within the initial or extended time fixed by the inspectors
for abatement.
I also find that in the case of one of the
violations issued on July 24, 1985, for a violation of section
75.301, MSHA noted that the operator took immediate action to
abate the violative ventilation conditions, and in another
violation issued on June 11, 1986, for a violation of section
75.301, MSHA vacated the violation after finding that sufficient ventilation was in fact provided.
In response to the operator's pretrial discovery requests
for an identification and description of any "especially
hazard condition" which MSHA maintains exists at the mine, and
the dates on which these conditions were discovered and communicated to the operator, MSHA's counsel provided a narrative
summary suggesting that the mine has methane problems, roof
control problems, an inconsistent ventilation system, and a
need to monitor a projected development toward impounded water
(See Addendum #6 Answer to Interrogatories).
'
The aforementiqned summary makes reference to certain
air
measurements made on the ventilation intake system on
October 22 and 30, 1986, and March 23, 1987, and one sample
taken in an immediate return on March 24, 1987.
It also contains a number of undocumented conclusions concerning the mine
ventilation and roof control, and there is no indication as to
who may have prepared the summary.

MSHA's response identifies October 22 and 30, 1986, and
March 24, 1987, as the dates that the alleged "especially
hazardous conditions" were discovered, and it refers to the
previously issued citations concerning violations of sections
75o316v 75o30lu 75.1704, and 75.200, in support of the alleged
especially hazardous conditions." These particular citations
have previous
been discussedo
However, MSHA has presented
no testimony or evidence documenting the October, 1986, and
Marchu 1987u air ventilation tests, and there is no evidence
that any citations were issued as a result of the air measurements MSHA has characterized in the summary as "especially
zardous conditions'0 existing in October, 1986, and March,
19870
.
MSHA failed to produce any of the inspector's who may
have conducted any methane or ventilation tests or surveys
subsequent to the February 10, 1982, ignition incident.
Mr. Schoffstall confirmed that he personally never conducted
any such tests in the mine, and while he asserted that he has
accompanied other inspectors when they took such tests, no

2151

details were forthcoming, and MSHA produced none of the inspectors. Although Mr. Schoffstall alluded to some nebulous loss
of 50 percent of air in the mine ventilation circuit, his
assertion in this regard remains unexplained, and he conceded
that he performed no test to support any such statement.
Mr. Schoffstall also conceded that absent the prior ignition
of February 10, 1982, his perceptions that the mine may have
some ventilation problems would not necessarily be reason
enough to place the mine in a section·l03Ci) spot inspection
status.
Mr. Schoffstall confirmed that MSHA wishes to keep the
operator on a section 103(i) spot 5 day inspection cycle
because of alleged adverse roof conditions, ventilation problems, and excessive methane liberation in the mine. Although
he is not identified as the source of MSHA's "especially
hazardous conditions" discovery summary, since he was the only
MSijA witness called to testify in this case, I assume that the
information in the summary came from him. As indicated
earlier, Mr. Schoffstall admitted that he has never conducted
any air ventilation tests, d,id not issue any of the prior ,ci tations produced by M_SHA, and that he was not present when those
citations were issued. I believe that Mr. Schoffstall's
opinions, conclusions, and speculations concerning the roof,
ventilation, and methane conditions which MSHA has identified
as the "especially hazardous conditions" warranting continuous
section 103(i) inspections every 5 days, are based on his
review of the prior citations and the overall mine compliance
record, rather than personal experience. Under the circumstances, I find his testimony to be of little credible or
probative value.
With regard to the alleged mine ventilation "problems,"
although Mr" Schoffstall was of the opinion that the mine ventilation system was "borderline,n he admitted that the ventilation system under which the mine has operated has MSHA's
approval"
Further, the record in this case reflects that in
the most recent past 2-years, the operator has been cited only
two times for violations of the ventilation plan requirements
of section 750316, because of some missing stoppings, and the
violations were timely abated"
With regard to the air ventilation requirements of section 750301, Mr" Schoffstall confirmed that the last time he
was in the mine to discuss some temporary stoppings, he found
that the operator was meeting the minimum air ventilation
requirements of the law (Tr" 66), and that during MSHA's
recent review of the operator's ventilation plans covering
developing and anticipated development areas, MSHA has

2152

approved the minimum requirements of 3,000 cubic feet of air a
minute at the working face and 5,000 cubic feet of air a
minute at the last open crosscut (Tr. 68). While it is true
that the operator has received six citations in the pas,t
2 years for violations of section 75.301, all of the cited
conditions were timely abated, and in one instance, the operator immediately corrected the conditicns, and in another,
MSHA vacated the citation.
In view of all of the forgoing circumstances, and absent
any other credible or probative testimony, I cannot conclude
that MSHA has established that the mine ventilation system
constitutes an "especially hazardous condition" warranting
continuous MSHA inspections every 5 days pursuant to section
103(i) of the Act. Mr. Schoffstall admitted that any such
ventilation monitoring may be accomplished by MSHA through its
regular and follow-up inspections independent of section
103(i) (Tr. 69, 72). Although Mr. Schoffstall was of the
opinion that the mine ventilation system is "borderline" and
"inconsistent," there is no evidence that the operator has
consistently violated its approved plan.
If MSHA believes~
that this is the case, then it should seriously reflect on why
it has continued to approve the operator's plans in the face
of what it believes to be borderline and inconsistent conduct
on the part of the operator.
With regard to the alleged adverse roof conditions in the
mine, apart from the abated citations which have been issued for
violations of section 75.200, I find no evidence that the operator has otherwise consistently failed to adhere to the requirements of its approved roof-control plan. Mr. Schoffstall
confirmed that the operator inherited some problems when he took
over the mine, and that some of the roof problems in the development areas are inherent to the present natural roof conditions
the mineo Howeveru Mro Schoffstall confirmed that the operator has constantly timbered and re-timbered mine areas where
the roof is taking weight" He alluded to a recent unplanned
roof fall which did not result in any injuries, and he confirmed
that the operator addressed that problem by developing a new
area to go around the fallu and establishing a new escapeway
from that area (Tr" 64)0
With regard to the operator's planned development in an
area where there is impounded waterp Mr. Schoffstall confirmed
that when the mining cycle approaches to within 200 feet of
the uncharted workings, the operator must start drilling in
advance to locate the water. However, there is no evidence
that the operator will not perform the advance work required
by MSHA's regulations, and Mr. Schoffstall admitted that any

2153

such requirements are independent of section 103(i), and that
this situation would be addressed by MSHA by means of a
speciql investigation to insure that proper procedures are
followed (Tr. 75).
With regard to the four prior escapeway citations for violations of section 75.1704, I take note of the fact that three
of the citations were timely abated, one was a non-S&S citation, and the abatement time for the remaining citation was
extended by MSHA for over a year and a half. Mr. Schoffstall
expressed some concern that a roof fall could block an escapeway, and MSHA's pretrial discovery summary pointed out that a
recent unplanned fall left the escapeway impassable. However,
the fact is that the operator immediately addressed and abated
the problem by mining around the fail and providing another
escape route. Although one may agree that a roof fall at an
escapeway may prevent a miner from exiting the mine by that
particular route, unless it can be shown that an operator
regularly is out of compliance with section 75.1704, or has
consistently allowed such conditions to exist to the point
where it becomes an ongoing hazard in the mine, I cannot Qonclude that isolated and sporadic escapeway citations which are
timely abated constitutes an "especially hazardous condition"
warranting inspections every 5 days.
In view of the foregoing, I cannot conclude that MSHA has
established that the escapeways, roof conditions, and the
projected future development which may approach some impounded
water constitute "especially hazardous conditions" warranting
continuous MSHA inspections every 5 days pursuant to section
103(i).
As previously noted, MSHA's guideline published in the
1982 Inspector's Manualp states that inspections conducted
pursuant to section 103(i) of the Act should be made with
respect to the hazard(s) that caused the mine to be placed in

this categoryc Mro Schoffstall confirmed that two other mines
in his district are on section 103(i) 5-day inspection cycles
because of water impoundment problems, which he considered to
be a readily identifiable ongoing hazard (Tr. 55)0
I assume
that once the water problem is curedf those mines will be
removed from their section 103(i) status. With regard to the
other mine operator whose mine is in close proximity to
Mro Rothermelisf and which was on a section 103(i) status for
7 yearsv because of a methane ignition or explosionf
Mr. Schoffstall confirmed that it has been removed because of
improvements in the air ventilation system and a decrease in
the amount of methane liberated at the face.

2154

On the facts of this case, MSHA has suggested that the
"other especially hazardous conditions" which are present in
the mine, and which authorizes it to continue to inspect the
mine every 5 days pursuant to section 103(i}, include not only
ventilation problems, but problems with roof control, escapeways, and a potential future water impoundment problem. However, the basis for placing the mine on the 5-day inspection
cycle in the first place was the fact that a methane ignition
or explosion occurred on February 10, ··1982. MSHA concluded
that the ignition was the result of improper blasting procedures, and the failure to follow proper ventilation practices.
The improper ventilation practices were identified as inadequate ventilation controls such as overcasts, regulators, and
stoppings, and the failure to properly check for methane
before blasting. I find nothing in MSHA's investigative
report to suggest that any adverse roof conditions, or the
lack of inadequate escapeways, played any role in the accident.
As a matter of fact, item #26, at page 5 of the report
reflects that after the ignition, all employees were out of
the mine in 10 minutes.
On the facts_.o-f this case, there is no question that the
mine was inititally placed on a section 103Ci> 5-day inspection cycle because of the methane ignition which occurred on
February 10, 1982. MSHA has tacitly admitted that were it not
for that incident, the mine would not be on a section 103(i)
inspection cycle. Mr. Schoffstall admitted that the mine was
not placed in that category because of any other "especially
hazardous conditions," and while he conceded that MSHA could
place the mine in such a "spot inspection hazard" category, it
has not done so in this case because "he was already in a section 103(i) situation" (Tr. 95). Mr. Schoffstall was of the
opinion that MSHA "was locked into" that situation and stated
that 1 we can u t quit no more than the operator can quit for the
five year period" (Tr. 107-108). Mr. Schoffstall was of the
opinion that the 5 year reference in section 103Ci) is "automatic, 01 .and MSHA 1 s counsel was of the view that once an operator is placed in that position, the Act mandates that MSHA
inspect the mine every 5 working days. When asked how long
the operator would remain in that inspection cycle, MSHA's
counsel responded "until it is taken off, 11 and Mr. Schoffstall
responded "for five years" (Tr. 108). Although I consider
these responses to be contradictory, MSHA's counsel took the
position that 5 years is only a minimum time frame, and that
MSHA could continue to inspect the mine every 5 days beyond
5 years until it was satisfied that it no longer posed a
potential hazard for a methane explosion.
i

2155

Mr. Schoffstall conceded that his concerns with the mine
deal with potential hazards (Tr. 55). He expressed concern
over oossible blockage of escapeways and restriction of ventilation due to roof falls (Tr. 64). He also expressed concern
that given the present mine ventilation system, there may be
insufficient quantities of air available at certain locations
which are scheduled for development, and whether or not the
ventilations system may be sufficient to carry away methane
which may be encountered. Yet, the m±ne continues to operate
under MSHA approved roof-control and ventilation plans.
Mr. Schoffstall conceded that roof control or ventilation
control problems could develop in a mine at any time due to
unknown facts and uncertainties, particularly in this mine
which he claims has a "borderline" ventilation system.
In my
view, Mr. Schoffstall's concerns are based on speculative
possibilities of events which may or may not occur, rather
than on any credible evidence establishing the existence of
any definitive "especially hazardous conditions" in the mine.
All mines pose a potential for hazards connected with
restricted ventilation and escapeways due to roof falls, ~nd
inadequate air ventilation due to some breakdown in the ventilation system. However, I find nothing in section 103Ci)
which authorizes MSHA to keep a mine on a continuous 5-day
inspection cycle because of potential problems, subsequent
isolated abated violative conditions which were not directly
related to the event which initially placed in the mine in a
section 103(i) posture, or MSHA's subjective undocumented
judgments that the mine poses a 11 problem. 11
During closing arguments in this case, MSHA asserted that
because of the multitude of hazards that are presented in the
mining industry, especially in cases of small operators such
as the one in this case, MSHA has discretion to maintain the
operator here on a protracted 5-day inspection cycle and it
need not wait until another methane explosion has occurred in
the mine" Recognizing the fact that its perceived discretion
may not be exercised in an unreasonable or illegal manner, and
that it must establish good cause for keeping the operator on
a continuous ongoing 5-day inspection cycle, MSHA concludes
that it has established such good cause and has exercised its
discretion in a reasonable manner.
I disagree.
I conclude
and find that the only thing that MSHA has established is that
the mine experienced a methane or gas explosion on February 10,
1982 1 which resulted in serious injuries to miners, which in
turn triggered the placement of the mine on a 5 day section
103(i) inspection cycle.

2156

I further conclude and find that MSHA has produced no
credible or probative evidence to establish that the mine liberates excessive quantities of methane or other explosive
gases during its operations, or that there presently exists in
the mine "other especially hazardous conditions" justifying or
warranting the continuation of the mine on a section 103(i)
5-day inspection cycle for as long as this particular operator
stays in business.
In short, I conclude and find that MSHA
has failed to establish good cause or-reasons for maintaining
the operator in such a position. I further conclude and find
that on the facts of this case, MSHA's unreasonable insistence
on inspecting the mine every 5 days supports the operator's
contention that such inspections have interfered with its
right to operate its mine without undue interference from MSHA.
I believe that MSHA has other available enforcement means at
its disposal to insure that the operator here stays in compliance with its safety standards short of what I believe to
be a rather arbitrary application of the requirements of
section l03(i) of the Act.
In view of the foregoing findings and conclusions, I, conclude that the ope~ator's 'refusal to allow the MSHA inspectors
entry to his mine for the purpose of conducting section 103CiJ
inspections was justified and does not constitute a violation
of section 103(a) of the Act. Accordingly, the contested citations and order served on the operator ARE VACATED.
ORDER
IT IS ORDERED THAT:

1. Section 104(a) Citation Nos. 2840770
and 2840772, and section 104(b) Order
Nao 284077lv ARE VACATED.
2o
MSHAus proposals for assessment of
civil penalties ARE DENIED AND DISMISSEDo

~~K~~
Administrative Law Judge

2157

Distribution:
James P. Diehl, Esq., Williamson, Friedberg & Jones, One
Norwegian Plaza, Pottsville, PA 17901 (Certified Mail)
Susan M. Jordan, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
/fb

2158

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

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

DEC 101987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 85-169
A.C.No. 46-02493-03536
Quinland No. 1 Mine

v.
QUIN LAND COALS, INC. I

Respondent
DECISION ON REMAND
Before:

Judge Fau,ver

On September 30, 1987, the Commission remanded this case for
a decision whether the violation of 30 C.F.R. § 75.200 (charged
in Order No. 2144040) was the result of an "unwarrantable failure
to comply with that mandatory safety standard" and for such
futher proceedings as are then appropriate.
In Florence Mining Company, PENN 86-297-R and PENN 87-16
(June 30, 1987), now pending review by the Commission, I held
that the legislative history of § 104(d) of the Act shows that
the phrase "unwarrantable failure to comply" means "the failure
of an operator to abate a condition or practice constituting a
violation of a mandatory standard it knew or should have known
sted 1 or the failure to abate such a condition or practice
because of indifference or lack of reasonable care." I also
held that I do not interpret the Commission 1 s decision in United
States Steel Corporation, 6 FMSHRC 1423 (1984), as requiring a
departure from the legislative history definition of
"unwarrantable failure to comply." As I stated in Florence
Mining Company 1 the Commission 1 s statement in United States
Steelv as follows~
but we concur with the Board to the extent that
an unwarrantable failure to comply may be proved by
a showing that the violative condition or practice
was not corrected or remedied, prior to issuance of
a citation or order, because of indifference,
willful intent, or a serious lack of reasonable care
does not purport to be a restrictive definition based upon
reconsideration of the legislative history, but appears to me to

2159

be merely one kind of proof of an "unwarrantable failure to
comply."
Whether the legislative history definition, stated in my
decision in Florence Mining Company, or the example added by the
Commission in United States Steel Corporation is applied in this
case, I find on remand that Respondent demonstrated an
unwarrantable failure to comply with the cited standard. The
roof conditions were highly dangerous, they were known by mine
management or should have been known by mine management for at
least one or two months before the order charging a violation of
30 C.F.R. § 75.200. The conditions should have been corrected
long before they were discovered by the inspector on October 11,
1984. Even though Respondent's witness McClure stated an
opinion that the roof was adequately supported (an opinion I have
rejected in favor of Inspector Thompson's opinion of a dangerous
roof condition), McClure was aware that the roof control plan
required that broken timbers be replaced and that there were some
broken timbers that had not been replaced.
On balance, I find
that a preponderance of the substantial, reliable, and probative
evidence shows that the violative roof condition was kno~n by
Respondent or should have been.known by Respondent bafore October
11, 1984, and the fai).ure to correi:t this condition was due to an
unwarrantable failure to comply with 30 C.J:o... R. § 75 .200.
In light of this finding, I find that my previous assessment
of a civil penalty for $800 is appropriate for this violation.

ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay the total
civil penalties assessed in this case, in the amount of $1,300,
within 30 days of this Decision on Remand.

d)~:r~
William Fauver
Administrative Law Judge
Distribution:
Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulev~rd, Arlington, VA 22203 (Certified

Mail)
William D. Stoverv Esq., Quinland Coals, Inc., 41 Eagles Road,
Beckley, WV 25801 (Certified Mail)
kg

2160

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

DEC 151987
CONSOLIDATION COAL COMPANY,

CONTEST PROCEEDINGS

Contestant
Docket No. WEVA 87-129-R
Ci~ation No. 2704568; 3/4/87

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

Robinson Run No. 95 Mine

Respondent
SECRETARY OF LABOR,

CIVIL PENALTY PROCEEDINGS

MINE SAFETY AND HEALTH
ADMINISTRATION,

(MSHA),

Petitioner

Docket No. WEVA 87-193
A. C. No. 46-01318-03752

v.
Robinson Run No. 95 Mine,
CONSOLIDATION COAL COMPANY,

Respondent
DECISION

Appearances:

Before~

Michael R. Peelish, Esq., Pittsburgh, Pennsylvania
for, Consolidation Coal Company;
James H. Swain, Esq., Office of the Solicitor,
U. s. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary of Labor.

Judge Melick

These consolidated cases are before me under section 105(d)
of the Federal Mine Safety and Health Act of 1977u 30 U.S.C. §
801 et. seq., the 11 Act, 11 to challenge a citation and order of
withdrawal issued by the Secretary of Labor under section
104(d)(l) of the Act and for review of civil penalties proposed
by the Secretary for the violations alleged therein.~/
~I

Section l04(d)(l) of the Act reads as follows:

If 9 upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and

2161

At.hearing the Secretary moved for the approval of a
settlement agreement with the respect to Withdrawal Order No.
2704572 proposing a reduction in penalty from $750 to $500. I
considered the representations in support of the motion and
determined that the profferred settlement was appropriate under
the criteria set forth in section llOCi> of the Act. That
determination is now confirmed. Commission Rule 65,
29 C.F.R. § 2700.65.

-

The remaining citation at issue, No. 2704568, alleges a
"significant and substantial" violation of the mine operator's
ventilation plan under the regulatory standard at 30 C.F.R. §
75.316 and charges as follows:
The haulage doors located at No. 29 block that separated the
6 left, 4 North intake escapeway from the trolley haulage
entry were not being maintained reasonably air tight and in
a workmanlike manner as required by the approved ventilation
plan. The haulage door beside the track was damaged to the
extent there was a 22 inch opening across the top of the
door, and the inby door was leaking air across the top and
bottom of the door. Th~ air being used to ventilate the
trolley haulage entry was entering the intake escapeway
through the doors. The haulage door beside the track was
damaged on 02-28-87 and new doors were ordered 03-02-87 but
there was no check curtain or stopping installed to stop the
air from the trolley haulage entry from entering the intake
escapeway.
!/<continuation)

Section 104(d)(l) of the Act:

substantially contribute to the cause and effect of a coal
or other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standardsu he shall include such finding in any citation
given to the operator under this Acto If 9 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 Secretacy finds another violation of
any mandatory health or safety standard and finds such
violation to be also caused by an unwarrantable fail!.ll'.'e of
such operator to so complyQ he shall forthwith issue an
order requiring the operator to cause all persons i3 the
area affected by such violation, except those persons
~eferred to in subsection (c) to be withdrawn from. and to
be prohibited .Erom entering, such area until an authorized
representative of the Secretary determines that such
violation has been abated.

2162

In relevant part, the mine operator's ventilation plan
provides that "intake escapeway areas being isolated shall
maintain a constant air pressure from the intake escapeway to the
track." The plan also provides that "all [haulage] doors will be
substantially built and maintained in a workmanlike manner."
The Consolidation Coal Company (Consol) does not dispute the
allegations set forth in the citation at bar nor does it dispute
that such allegations constitute a violation of its ventilation
plan.
Consol maintains however that the violation was neither
"significant and substantial" nor caused by its 11 unwarrantable
failure" to comply with the ventilation plan.
Ronald Tulanowski, an inspector for the Federal Mine Safety
and Health Administration, (MSH~), entered the subject mine on
March 4, 1987, at about 12:10 a.m. accompanied by company safety
representative Sandy Eastham and union safety committeeman, Cecil
Wilson.
Proceeding to the 6 left, 4 North longwall section the
group exited the personnel carrier in the No. 3 (track) entry at
the No. 29 block.
As he walked toward the haulage doors
Tulanowski saw that the first door was bent out of shape and
knocked off a hinge. This·left a large opening at the top some
22 inches wide and-14 feet long through which ventilating air was
passing from the No. 3 entry to the No. 2 entry (the intake
escapeway).
On the No. 3 entry side of the haulage door closest
to the No. 3 entry the words "danger bad door" were written in
chalk but no other markings or warnings were noted on either of
the two haulage doors. The damaged door could not be rehung so
it was therefore necessary to erect a temporary check curtain.
Union safety committeemen Cecil Wilson corroborated Tulanowski in
essential respects.
Bastham reportedly told Tulanowski that that the haulage
door had been damaged on February 28th and that a new door had
been ordered. Safety Supervisor Richard Paugh also informed
Tulanowski that while the door had been previously damaged, it
had also been repaired and was not leaking air. Tulanowski
concluded that the violation was serious and "significant and.
substantial" because, in the event of a mine fire, smoke would
contaminate the intake escapeway and working faces so that
persons trying to escape thcough the smoke could stumble for lack
of visibility or be overcome by smo!ce inhalation.
It was about
400 to 500 feet from the doors to the face.
Tom Harrison was Consol's longwall ~oorjinatoc during this
time.
At hearing he reviewed the preshift and onshift
examination books beginning with the February 28, 1987, midnight
shift (12:00 a.m. to 8:00 a.m.).
He noted that a ~reshift
examiner who performed his exam between 5:00 a.m. and 7:15 a.m.

2163

on that date, had written the words "air lock door knocked out".
That defect was noted a9ain on preshift examinations through
March 1, 1987. The examination for the midnight shift on
March 2, 1987, showed that the condition had been "corrected"
(Joint Exhibit No. 2)
Harrison himself learned of the defective haulage door upon
reviewing the examination books on March 2nd and went into the
mine to see the condition himself. Rarrison then made temporary
repairs on the door and wired it shut creating a "temporary
stopping". He confirmed that the air was moving in the right
direction and then wrote the words "danger-bad door" on the No. 3
entry side of the damaged door. He examined the door again on
March 3rd at about 9:15 a.m. and it was in the same condition.
According to Harrison the purpose of the doors was to permit the
scoop to enter the track entry to pick-up crib blocks. The scoop
was normally kept in a cross-cut off the No. 2 entry when not in
use.
Stanley Nicholas, the long wall foreman, testified that he
performed the preshift examinations on March 3rd, between 9:00
p.m. and 11:00 p.m. He visually inspected the airlock doors and
confirmed that the trackside door was sealed. He recalled seeing
the notation "danger-6ad door" chalked upon the door.
Consol argues that the admitted violation was not
"significant and substantial" because it existed only briefly.
It maintains that the subject door had been wired shut and sealed
by Tom Harrison on March 2, 1987. Harrison examined the door
again on March 3, 1987, around 9:15 p.m. and found that air
was not leaking into the intake escapeway. Finally it is
undisputed that that Foreman Stanley Nicholas performed a
examination between 9:00 p.m. and 11:00 p.m. on March 3, 1987
and found the doors to be sealed with no air movemant into the
intake escapewayo Consol therefore maintains that the damage
to the door cited by Inspector Tulanowski must have been new
damage that occurred sometime after that preshift examination on
March 3, 1987, and before the time of the inspection at
approximately 12:45 aom. on March 4th.
The evidence in s11pport of Consol vs ar·::rument herein is
indeed undisputed and it may therefore be inferred that the
damaged condition observed by Inspector Talanowski leading to nis
citation occurred sometime between 9:00 p.m. and 12:45 the naxt
~ornin3.
However the fact that the inspector discover2d the
violative condition as soon as he did, does not netJa te the
0
significant 3nd substantial" nature of it. The operative time
Erame Eor determining the reasonable likelihood of an injury
includes the expected continuance of normal mining operations.
Secretary v. Halfway Incorporated, 8 FMSHRC8 (1986). The
evidence is not suff icent to clearly establish when the new

2164

replacement door would have been erected to correct the violative
condition in this case. Thus the serious hazard of smoka from a
fire in the track entry which would reasonably be likely to pass
into the intake escapeway and to the face areas, would be
expected to exist for some time.
Under the circumstances the
violation was indeed serious and "significant and substantial."
Secretary v. Mathies Coal Co., 6 FMSHRC 1 (1984).
Consol also argues
"unwarrantable failure"
Zeigler Coal Company, 7
Mine Operations Appeals

that the violation was not caused by its
to co:nply with the cited standard.
In
IBMA 280 <1977) the Interioc "Boa.rd of
stated as follows:

[a]n Inspector should find that a violation of any mandatory
standard was caused by an unwarrantable failure to comply
with such standard if he determines that the operator
involved has failed to abate the conditions or practices
constituting such violation, conditions or practices the
operator knew or should have known exi3ted or which it
failed to abate because of a lack of due diligence, or
because of indifference or lack of reasonable care.
The Commission has concurred with this definition to the
extent it has found that an unwarrantable failure to comply may
be proved by showing that the violative condition or practice was
not corrected or remedied, prior to the issuance of a citation or
order, because of indifference, willful intent, or a serious lack
of reasonable care. United States Steel Corn., v. Secretary of
Labor, 6 FMSHRC 1423 (1984}.
Upon the credible evidence in this
case it is clear that the violative condition existed for such a
brief period of time i.e. from sometime between the required
pre-shift exam between 9:00 p.m. and 11:00 p.m. on March 3rd and
12:45 a.m. on March 4th that I cannot find that the violation was
the result of indifference, willful intent, or a serious lack of
reasonable careo The violation was not therefore caused by the
"unwarrantable failure" of the operator to co~nply with the cited
standardo For the same reasons I find Consol to be chargeable
with lesser negligence.
In reaching this conclusion I have not disregarded the
Secretary's argument that the violation had actually existed
since February 28th when the damaged haulage door was first noted
in the preshift book and that it remained uncorrected ~t least
unt11 the second shift on March 2nd, when Mr. Harrison testified
that he sealed the door.
~he condition noted in the preshi£t
boo~ on February 28th has not been shown however to be the same
conditio11 that was cited on March 4th. The operator cannot
Eairly be charged with "unwarrantable failure" because of an
earlier condition that has not been shown to have been the same
or even similar to the condition cited five days later.
It is

2165

apparent moreover that the haulage door suffered additional
damage in the few hours before the subject inspection and this
was the damaged condition cited by Tulanowski on March 4th.
The Secretary also argues that since only the No. 3 entryside-door was dangered off with the chalk sign "danger-bad door"
and not the No. 2 entry door through which the scoop would be
expected to first travel, there was insgfficient warning to the
scoop operator. In other words the Secretary argues that the No.
3 entry was not restricted effectively from use even after its
temporary repair on March 2nd. Again however the fail~re to
effectively restrict travel through the damaged haulage door
for periods before the preshift exam between 9:00 p.m. and
11:00 p.m. on March 3rd cannot fairly be considered in relation
to the citation at bar. The Secretary has not proven that a
violation did in fact exist at any time before that preshift
examination.
Inasmuch as the evidence in this case shows that
the specific violative condition cited herein did not occur until
sometime after that preshift examination and before 12:45 a.m. on
March 4th, the failure to have restricted travel during that
relatively brief period of time was not therefore Jue to
"indiffarence, willful intent· or a serious lack of reasonable
care".
Under the circumstances Citation No. 2704568 must be
modified to a citation under section 104(a) of the Act.
In
assessing a civil penalty in this case I have also considered
that the operator is l~rge in size and has a substantial history
of violations.
I have also considered that the cited condition
was abated as prescribed by the Secretary. Under these
circumstances I find that a civil penalty of $400 is appropriate.

ORDER
Citation No. 2704568 is ~edified to a significant and
substantial citation under section 104Ca) of the ~c . Order
2704572 is af fi.rmed.
Consolidation Coal Company is hereby
directed to pay civil penalties of $900 within 30 d ys of the
date of this decision.

Gary Mel ck
Administ tive
(703) 756 6261

I
\
\

2166

La~

i

\

\

dge

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

DEC 15 l9S7
BOBBY SIZEMORE,

DISCRIMINATION PROCEEDING
Complainant
Docket No. KENT 87-196-D
BARB-CD-87-24

v.
NALLY AND HAMILTON ENTERPRISES,~
INC. 1
Respondent

DECISION
Appearances:

Before:

Phyllis Robinson Smith, Esq., Hyden, Kentucky, for
Complainantc;
Lloyd~R. Eden's, Esq.u Cline & Edens, Middlesboro,
Kentucky for Respondent.

Judge Melick

This case is before me upon the Complaint of Bobby Sizemore
under section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et. seq., the "Act", alleging that.Nally
and Hamilton Enterprises, Inc. (Nally) discharged him on
February 13, 1987, in violation of section 105(c)(l) of the Act.
In its Answer, Nally maintained that the Complaint was neither
timely filed nor stated a claim for which relief could be granted.
Following a preliminary hearing on these issues a bench decision
was issuedo That decis
with only non-substantive
modifications 7 is as fellows
Of course, the threshold
sue in this case is whether
the original complaint f
ed with the Federal Mine
Safety and Health Review Commission on July 7, 1987,
was filed timely under the provisions of Section
105{c)(3 of the Federal Mine Safety and Health Act of
19770

The statute provides in relevant part that if the
Secretary, upon investigation, determines that the
provisions of this subsection have not been violated,
the complainant shall have the right within 30 days of
notice of the Secretary us determinatio.n to file an
action in his own behalf before the Commission charging
discrimination or interference in violation of
paragraph 1.

2167

Now the record shows that Mr. Sizemore, the complainant
in this case, received the Secretary's notice of his
determination that no discrimination occurred, on ~ay
7, 1987. This is evidenced~ of course, by the return
receipt, which is page 3 of Exhibit R-1. The record
shows also that his complaint was not filed with the
Commission until July 6, 1987. It appears that the
Complainant concedes that his complaint was filed
untimely, but he is arguing that the delay was
excusable because the mine operator was not prejudiced
by the delay (and indeed, there seems to be no dispute
that there was no prejudice to the operator), because
he was confused about the filing time purportedly
believing he had 60 days and not 30 days to file, and
because he called the Commissionn by telephone in
reference to his complaint, which he maintains should
be deemed to be a sufficient filing.
The legislative history of these provisions of the Act
indeed lend some support to the contentions raised by ~
the Complainant, and I will quote from that legislative
history:
"[f]urther, as mentioned above in connection
with the time fo~ filing.complaints, this 30-day
limitation may be waived by the Court in appropriate
circumstances for excusable failure to meet the
requirement."

Thus, within the framework of the Act, Commission
decisions and the legislative history I do have the
authority to extand the filing deadline if there is an
excusable ground.
However, in this case, first of all, I do not find the
excuse to be credible. First, Mr. Sizemore has shown
that he can read and understand what he reads. He did
this both at his deposition and at the hearing here
today.
He read from the Secretary 0 s letter; that is,
the letter f roiu the Federal Mine Safety and Heal th
Administration, the agent of the Secretary for purposes
of thGse proceedings, and that lettar was dated May 6,
1987, in which it is stated that Mr. Sizemore had 30
days t::i file with the Commission, and indeed, the
letter
elf provides the address of the Commission.
Let me quote from that

letter~

in part, it says:

If you should disagree with MSHA's
determination, you have tha right to pursue
your action and file a complaint on your own

2168

behalf with the Federal Mine Safety and
Health Review Commission at the following
address:
Federal Mine Safety and Health Review
Commission; 1730 K Street, N.W.;
Washington, D.C. 20006.

-

Section 105(c) provides that you have the
right within 30 days of this notice to file
your own action with the Commission.
Now Mr. Sizemore admits that he read that letter when
he received it, and based on that, I find that he did,
indeed, have actual notice of. the 30-day filing
requirement.
Mr. Sizemore nevertheless claims that he was confused
about some 60-day filing requirement, and. therefore,
thought that in spite of the actual notice he had, that
somehow he had actually 60 days in which to file with ~
the Commission. Aside from the fact that I find that
he had actual n6tice of the 30-day requirement and
understood it, I reject this excuse of alleged
confusion as not having any Qnderlying basis. In
particular he has shown no document or source for this
alleged confusion. There is no letter; there is no
testimony; there is no document setting forth any
60-day requirement that led to his alleged confusion.
Of course, there is a 60-day filing requirement in
Section 105(c)(2) of the ~ct but there is no allegation
that he at any time had read that statutory language.
I therefore reject the contention.
Finally, Mr. Sizemore claims that he called the
Commission about the filing requirements and that this
should be considered or deemed to be an adequate filing.
However, I find this claim to be also deficient
because, first of all, he cannot say when he made these
telephone calls. Indeed it appears most probable, and
it may reasonably be inferred, that he made these
telephone calls only in response to Chief Judge
Merlin's letter dated July 8, 1987, advising him of the
additional procedures that he must follow to perfect
his complaint. That letter is a matter of record in
the official file and concerns certain follow-up
procedures--for example, to notify the mine operator of
the filing of· the complaint--that Mr. Sizemore was
required to follow before the perfection of his ~ctual
complaint to the Commission. Thus it appears that the

2169

·

e

calla

cafu~

:..... -"---

...~ling of the

complaint.
Under all these circumstances I must find that the
original complaint was filed untimely under Section
105 ( c), 3} of the Act and that. 1...l!z;:•. c: a.ra no grounds for
allowing a late filing. I therefore find also that the
prof erred amendment is also untimely as it could only
relate back to the filing of the original complaint.
On this basis alone, the complaint and the amended
complaint must be dismissed and there is no reason to
proceed to the merits of the case.
I should say, however, that even assuming that the
complaint had been timely filed, and that the amendment
was granted, I do not find that either states a claim
for which relief may be granted under the provisions of
Section 105(c)(l) of the Act.

The original complaint reads as follows:
On February 13, 1997, at 20 until 4 in the
morning we were cleaning up the pit. It got
too narrow for both loaders, so I went to the
other end to clean up the corner. I loaded
the last load, dropped the bucket iuto the
bed of the truck, and got out on the running
board to talk _to the truckdr i ver to let my
knee loosen up a little bit.
I had been out of the loader about
one-and-a-half minutes. Les came by in his
truck, pulled up and got up in the loader,
and told me he didn't want to see this
damn shit no moreo 6'I asked him what he was
talking about, and he said, 0 You out on the
running board talking to the truck drivers. 1

told him this was the first time I had been
out of the loader since dinnertime at 12:30,
and it was 20 until 4, and my knee stiffened
:ip on ,ne.

I

He said, "I 1 ve had about all I can take of
you. Now get your ass back to work and clean
this up. •u

So I went back to work and worked until
cleaning time at 4:30. I parked my loader,
and he pulled up beside me, and I walked over

2170

to the truck and told him from now on when he
wanted something done, he didn't have to cuss
at me. He shoved his truck in park and told
me he was the boss and would cuss anytime he
wanted to. So he got out of his truck and I
walked to the other side and told him he
might cuss, but he wasn't going to cuss at me.
He said he would cuss at me aIJ,ytime he wanted
to, and took his left hand and put on my
right shoulder, shoving me and hitting me in
the ribs with his right hand. we then
proceeded to fight, and I got fired.
If
found in my favor, I want my job back with
full pay and 11 benefits, including medical
benefits paid with no reduction in employment
time"
Now the proposed amended complaint charges as follows:
Mr. Sizemore testified at his deposition on October 12,
1987, that he had a problem with his knee when he
operated equipment for a long time, and that the knee
would stiffen-up on him.
Mr. Sizemore had been advised that he was not allowed
to take breaks from running the equipment, but could
occasionally get out and stretch his legs, as long as
it did not look like a break.
On the occasion that caused the altercation, this was what
he was doing.
If Mr. Sizemore had been permitted to take
the legally mandated breaks, this incident would not have
occurred, and the failure to permit breakd is a violation of
the Mine Safety and Health Act.
As stated today at these proceedings, the motion to amend
the original complaint has actually been further amended in that
it is now not claimed that it was a violation of the Mine Safety
and Health Act for the alleged failure of the operator to allow
le;rally mandated work breaks, but it is a violation of a Kentucky
wage and hour law that apparently requires an employer to grant
ten minute breaks for each four hours of work.

Let me read, first of allv from Section 105(c)(l) of the Act.
It provides, in essence, that:
No person shall discharge or in any manner
discriminate against or cause to be
discharged or cause discrimination against or
. otherwise interfere with the exercise of the

2171

statutory rights of any miner because such
miner has filed or made a complaint under or
related to this Act, including a complaint
notifying the operator or the operator's
agent of an alleged danger or safety or
health violation in a mine, or because such
miner has institutued or caused to be
instituted any oroceeding under or related to
this Act, or be~ause of the exercise of such
miner of any statutory right afforded by this
Act.
The original complaint asserts only that, in essence, Mr.
Sizemore was fired because he was involved in a fight, which
was started by an argument over his being "cussed" at by his
supervisor. While it certainly may not have been pleasant
or nice for his supervisor to "cuss" at him, this certainly
has nothing to do with the purposes or the specific
statutory protections afforded by Section 105(c)(l).
In the amended complaint, Mr. Sizemore asserts, in essence,
that the Respondent v_iolated'a Kentucky wage and hour law
regarding ten-minute breaks, and that his was the basis for
his cussing and fighting, and therefore, somehow the
Complainant is thereby protected under the Mine Safety Act.
Howeverv there is no allegation anywhere in the original or
amended complaint that Mr. Sizemore had filed or made a
complaint under or related to the Act which might be
construed as even incorporating a complaint notifying the
operator or the operator's agent of an alleged danger or
safety or health violation in the mine. Nor certainly was
there any allegation that Mr. Sizemore had instituted or
caused any proceeding to be instituted under or related to
the Act" For that matterq there is no allegation that Mro
Sizemore exercised any statutory right afforded by the Acto
F
lyr there is no allegation that MrQ Sizemore at any
time exercised any refusal to work or work refusal as that
is construed within the terms of the Mine Safety Act.
Thus: even assuming that the original complaint was filed
time , and assuming that the motio11 to amend the complaint
was grantede I would .nevertheless find that the Complainant
would have in any event, failed to state ~ claiill for which
relief may be granted under Section 105(c)(l) of the Act,
and the complaints would in any event therefore be
dismissed
a

Under the circumstances 1 this cF1.se is therefore dismissed.
rhere is no reason then to reach the merits of the case, and

2172

I will prepare a final written decision incorporating this
bench decision which will be prepared upon receipt of the
transcript in these proceedings, and that will constitute
the final disposition of this case.

ORDER
The bench decision rendered in this case is hereby confirmed
and this case is dismissed.

Law Judge
Distribution:
Phyllis Robinson Smith, Esq., P.O. Box
(Certified Mail)

Hyden, KY

Lloyd R. Edens, Esq., Cline & Edens, P.O. Drawer 2220,
Middlesboro, Kentucky 40965
(Certified Mail)
npt

2173

41749

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

DEC 161987
SECRETARY OF LABOR,
MINE SAFETY AND HEAL'rH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 87-69
A.C. No. 46-01453-03742

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

CONSOLIDATION COAL COMPANY,
Contest:ant

v.

CONTEST PROCEEDINGS
Docket No. WEVA 86-449-R
Order No. 2713396; 7/21/86

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

Docket No. WEVA 86-450-R
Order No. 2713397; 7/21/86
Humphrey No. 7 Mine
DECISIONS

Appearances:

Therese I. Salus, Esq.u Office of the
Solicitor 0 UoSo Department of Laboru
Philadelphia 0 Pennsylv~niau for the
Petitioner/Respondent,
Michael Ro Peelish, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent/Contestant.

Beforei

Judge Koutras
Statement of the Case

These consolidated proceedings concern a civil penalty
proposal filed by MSHA against the Consolidation Coal Company
pursuant to section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 820(a), seeking a civil
penalty assessmant in the amount of $900 for an alleged violation of mandatory safety training standard 30 C.F.R. § 48.7,
as stated in a section 104(a) "S&S" Citation No. 2713397,
issued by an MSHA inspector on July 21, 1986, (Docket No.

2174

WEVA 87-69). Docket No. WEVA 86-450-R is the contest filed by
the Consolidation Coal Company challenging the legality of the
citation and the inspector's special "S&S" findings.
Docket
No. WEVA 86-449-R is the contest challenging the legality of a
section 104(g)(l) Withdrawal Order No. 2713396, issued by the
inspector on July 21, 1986, in conjunction with the aforesaid
contested citation. The order was issued to withdraw an
alleged untrained miner from the mine until such time that his
training has been completed.
A consolidated hearing was held in Morgantown,
West Virginia, and the parties were afforded an opportunity to
file posthearing bri s, and they have done so. I have considered all of the arguments made by the parties in these proceedings in my adjudication of these matters.
Issues
The issues
ented are Cl> whether the condition or
practice cited by the inspector constituted a violation of the
cited mandatory saf
training standard, and if so, (2) the
appropriate civil pftnalty to be assessed for the violation,
taking into accourit the statutory civil penalty criteria found
in section llO(i) of the Act. Also at issue is the question
of whether or not the alleged violation was significant and
substantial (S&S), and whether or not the withdrawal of the
alleged untrained miner was justified.
Additional issues raised by the parties are identified
and disposed of in the course of these decisions.
Applicable Statutory and Regulatory Provisions

1. The
Mine Safety and Health Act of 1977,
Pub" L. 95-164, 30 U.SoCo § 801 et seq.
2.

Commission Rulesu 29 C.F.R. § 2700.l

3o

30 C.F.R. § 48.7.

et~·

Procedural Ruling
MSHA 1 s motion to amend Citation No. 2713397 to
lect an
alleged violation of 30 C.F.R. § 48.7 the training requirements appli
to underground mines, rather than section
47.27, the standards applicable to surface mines, was granted
from the bench (Tr. 10-11).

2175

Stipulations
Tae parties stipulated to the following:

1.

The subject mine is owned and operated

by the respondent/contestant.

2. The subject mine and the
respondent/contestant are subject to the jurisdiction of the Act.
3. The presiding judge has jurisdiction
to hear and decide these cases.

4. The citation and order ·issued in these
proceedings were properly served on the
respondent/contestant by an agent of the
Secretary of Labor, and they may be admitted as
part of the record in these proceedings for the
purpose of establishing that they were properly
issued and not for the purpose of establishing
the truth of the conditions or practices stated
therein.
·
5. The parties agree to the authenticity
of their respective hearing exhibits.

6. The cited conditions or practices were
timely abated by the respondent/contestant.
7. The 1986 annual coal production for
the subject mine was 2,809,067 tons. The annual
coal production for the respondent/contestant
for all of its mines was 38u068u032 tons.

8. The assessment of a civil penal
for
the violation in question will not adversely
affect the respondent/contestantus ability to
continue in businesso
9o
The respondent/contestant~s history of
prior violations for the 2-year period prior to the issuance of the citation in question
consists of 778 violations issued during 946
inspection days, or .82 assessed violations per
inspection day"

2176

The parties also agreed that in the event the citation is
affirmed, the subsequently issued section 104Cg)(l) order
should be affirmed.
Discussion
The essential facts in this case are not in dispute. On
July 19, 1986, an accident occurred in the mine when an
employee was pinned against a coal rib by an S&S scoop operated by another employee, Brad Slaman. The accident victim
was hospitalized and lost time from work.
MSHA Inspector
Leonidas w. Gibson conducted an accident investigation on
July 21, 1986.
In addition to interviewing mine personnel,
Mr. Gibson reviewed Mr. Slaman's training records maintained
by Consol pursuant to 30 C.F.R. § 48.9.
Although those
records revealed that Mr. Slaman had been properly trained in
the safe operation of several pieces of equipment, including a
personnel carrier, shuttle car, and loader, Mr. Gibson could
find no training records indicating that Mr. Slaman was
trained in the operation of a scoop, and Consol's safety
department could not produce any such records.
Further,
although Mr. Slaman advised the inspector that he had received
scoop training, he too was unable to produce copies of any
scoop training certificates. Consequently, the inspector
concluded that Mr. Slaman had not been trained in the operation of a scoop, and he issued a citation charging a violation
of 30 C.F.R. § 48.7.
The citations and order issued in these proceedings are
as follows:
Docket Nos. WEVA 87-69 and WEVA 86-450-R
Section 104(a) Citation No. 2713397u July 21, 1986;
states as follows~
'A scoop operator, Brad Slaman, did not
receive task training in the safe procedures of
operating a scoop, in LWG before transporting
longwall equipment in the 7-Butt section.
A
104-G-a Order No. 2713396 and a 107(a) Order
No. 2711441 have been issued in conjunction
with this 104(a) citation.

Walter D. Hunt, Section Foreman, was in
charge of this section.

2177

Docket No. WEVA 86-448-R
Section 104(g)(l) Order No. 2713396. July 21, 1986,
states as follows:
A scoop operator Brad Slaman did not
receive task training in the safe procedures of
operating a scoop before transporting longwall
equipment in the 7-Butt section, .which resulted
in a serious accident to another miner.
This order is to remove Brad Slaman from
the mine until training has been completed in
the safe procedures of operating a scoop.
A 104(a) citation has been issued in
conjunction with this order. Walter D. Hunt,
Section Foremanu was in charge of this section.
MSHA 1 s Testimony and Evidence
Leonidas w. Gibsqn, testified that he is a retired MSHA
inspector, and he confirmed that he participated in an accident investigation at the mine on July 21, 1986, and as a
result of that investigation he issued Citation No. 2713397,
including the modifications attached thereto (Tr. 15-16,
Exhibit G-1).
Mr. Gibson stated that mandatory training section 48.7
requires that a miner assigned to a particular piece of equipment such as a scoop be trained so that he is able to operate
it in a safe manner.
Mr. Gibson confirmed that the standards
require that such training be recorded, and he confirmed that
he issued the citation after determining that the operator's
records d
not reflect that Mr. Slaman was trained in the
operation
the scoop he was operating at the time of the
accident.
Mr. Gibson stated that Mr. Stan Brozik, the mine
safety directoru produced training records which reflected
that Mr. Slaman had operated several different pieces of equipmentF but not an S&S scoop. Mr. Gibson produced a copy of his
notes made at the time of his inspection, and he confirmed
that the company .records produced by Mr. Brozik indicated the
types of equipment for which Mro Slaman was trained to operatep and that it did not include a scoop (Tro 18-14, Exhibit
)

0

Mr. Gibson stated that Mr. Slaman was operating an S&S
scoop at the time of the accident. He confirmed that when he
discussed the training records with Mr. Brozik, he stated that

2178

Mr. Slaman had been trained on the scoop. Mr. Gibson also
confirmed that when he later spoke with Mr. Slaman, Mr. Slaman
informed him that he had been trained on the scoop but could
not find his training record to confirm this. Mr. Gibson subsequently asked Mr. Brozik again about the training records,
and Mr. Brozik could not produce any record of Mr. Slaman's
scoop training (Tr. 26).
Mr. Gibson confirmed that he did· not issue a citation for
a violation of 48.9, which requires the mine operator to keep
training records, because Mr. Brozik did produce records
reflecting Mr. Slaman's training. Mr. Gibson stated,that his
conclusion that Mr. Slaman was not following normal operating
procedures while operating the scoop was based on Mr. Slaman 1 s
admission during his investigation that he did not know the
location of his scoop helper and did not know that he had
moved back to the corner of the machine when he placed the
scoop in operation to move a piece of equipment (Tr. 31-32).
Mr. Gibson stated that the purpose of section 48.7 is to
prevent accidents, and that if a person is properly trained
and knows how to operate a scoop in a safe manner, he can
prevent himself arid someone else from being injured (Tr. 33).
Mr. Gibson confirmed that the injury to the helper
resulted from Mr. Slaman's failure to know his location when
he started and moved the scoop.
The injured man was
hospitalized, but he subsequently returned to work (Tr. 34).
Mr. Gibson stated that the operator was aware that
Mr. Slaman was not trained in the operation of the scoop
because it had no training record to confirm his training, and
that this was the operator's responsibility. Mr. Gibson
confirmed that the violation was abated after Mr. Slaman was
re-trained, and he returned to work on July 23v 1986, and the
citation was terminated at that time (Tro 35)o
Mr. Gibson confirmed that he issued a section 104(g)(l)
order in conjunction with the citation in order to prevent
anyone else from being injured, to insure that Mr. Slaman was
re-trained so that
could do a better job in the £uture 1 and
to remove Mro Slaman from operating the scoop until he
received training in its operation (Tr. 35-38, exhibit G-2).
Mro Gib5on believed that the gravity was highly likely to
produce an injury or illness because one person was injured
and others could have been injured if Mr. Slaman were not
properly trained (Tr. 38-39)0

2179

On cross-examination, Mr. Gibson confirmed that he based
his citation for a violation of section 48.7 on the fact that
the comp~ny had no Form 5023 in Mr. Slaman's file (Tr. 46).
Mr. Gibson stated that in his experience as an MSHA inspector
and investigator, it is not uncmrunon for a trained employee to
be involved in an accident (Tr. 47). He confirmed that a
gravity finding of "high" or ~highly likely to happen" could
be modified to "moderate" if an employee involved in an
accident had received training (Tr. 48).
Mr. Gibson stated that Mr. Brozik did not advise him why
he could not find a record of Mr. Slaman's scoop training, and
he could not recall Mr. Brozik telling him that Mr. Slaman had
previously worked at another Consol operation in the
Mannington/Fairmont area (Tr. 50). He also confirmed that
Mr. Brozik did not tell him that Mr. Slaman had been
"grandfathered" in terms of any training requirements, or that
he had worked at another Consol operation (Tr. 51).
Mr. Gibson confirmed that if a miner is trained at one
mine or another company and there is a record of that training, he would not nec_essar ily be required to be trained again
when he transferred-jobs to another company, but he would have
to be trained on the particular type of machine that he is
operating. He would also have to be re-trained if the machine
is different from the one that he previously operated.
If his
machine controls are different or if the seating position is
different, he would have to be re-trained (Tr. 51).
Mr. Gibson described the similar characteristic's and
parts of a hinged scoop which articulates at a hinge point
normally located at the center of the machine (Tr. 52-53). He
confirmed that a scoop is a versatile piece of equipment, and
that it is used to carry and move longwall equipment and pan
lines (Tro 53)o Mro Gibson stated that in his mining experience1 he has never considered a Unitrac to be synonymous with
a scoopo He believed that a Unitrac was a different piece of
equipment and "some type of longwall equipment" (Tr. 54).
Mr. Gibson confirmed that he recently learned that a Unitrac
may be a scoop when MSHA's attorney informed him of this (Tr.
5 5)

0

In response to further questions, Mr. Gibson stated that
during his investigation, Mr. Slaman advised him that he
observed his helper in front of him, and that when he put the
scoop in motion, the helper was beside him and was pinned
against the rib when the scooo swiveled as he maneuvered it to
move the longwall pan line. ~r. Gibson believed that there
was a lack of communication between Mr. Slaman and his helper,

2180

and that Mr. Slaman did not determine the helper's location
before moving the machine. He assumed that this was the case
because the helper was pinned against the rib by the swiveling
action of the scoop when Mr. Slaman put it in motion. Proper
training requires that a scoop operator makes sure that h.is
helper is in the clear before he operates his machine.
Since
the machine is hinged and moves quickly, the scoop operator is
not supposed to have a man standing near him when he is
operating the machine (Tr. 57-60).
Respondent's Testimony and Evidence
Brad Slaman, belt motorman, testified that he has worked
for Consol at the Humphrey No. 7 Mine for 8 or 9 years.
Prior
to that, he worked at the Consol No. 20 Mine from October,
1977, for a little over a year.
He was laid off from that
mine and then went to work for Republic Steel. Five or
6 months elapsed from the time he worked at the No. 20 Mine
until he went to work at the Humphrey Mine. He worked at the
No. 20 Mine as a general laborer shoveling belts, and
delivering cribs and supplies.
In performing these duties, he
had occasion to operate a Upitrac. He described the Unitrac
as a machine basic.ally the same as a scoop, and he indicated
that it steers the same and pivots in the middle (Tr. 61-63).
Mr. Slaman stated that he was trained in the operation of
the Unitrac at the Consol No. 20 Mine by safety supervisor
Rudy Banick sometime in 1978, and that the training consisted
of Mr. Banick explaining to him how the machine operated and
reading him the Safe Work Instructions (SWI) for the operation
of the machine, including safety items such as watching out
for his helper, checking the machine over, checking the oil,
and ringing the bell before putting it in operation (Tr. 64).

Mr. Slaman stated that after his
itial training on the
Unitrac scoop, he would operate the machine several times a
in order to stay trained in its operation, and he
believed that he on
had to operate it at least once in
12 months to meet MSHA 1 s training requirements.
It was also
his understanding that he had to be trained if the machine was
modified. Mr. Slaman was not sure that the Unitrac on which
he was trained
Mr. Banick at the No. 20 Mine was a S&S
model, but he believed that all of Consol's scoops were S&S
ls (Tr o 65) •
~r. Slarnan sta
that when he went to work at the
Humphrey Noo 7 Minef he operated equipment similar to that
which he operated at the Noo 20 Mine, and that from 1978 when
he was initial
trained, until 1986 when the accident

occurred, he estimated that he had operated a scoop "a couple
hundred" times, and that since 1981 and 1982 he has operated a
scoop "pretty continuously" (Tr. 66).
Mr. Slarnan stated that while employed at the Humphrey
Mine he was trained in the operation of a scoop by at least 10
individuals, including Norman Cutright, and David Hunt. He
confirmed that Mr. Hunt retrained him on the scoop after the
accident, and that prior to that time·he observed him operating the scoop, and had retrained him several times. He also
received scoop training from one Charlie Johnson. Mr. Hunt's
training included a revie~ of scoop safety topics at least
three times, and instructions in the operation of a scoop
while working under Mr. Hunt's supervision. Prior to assign~
ing him a task, Mr. Hunt would inquire as to his scoop training, and Mr. Slarnan informed Mr. Hunt that he was trained in
the operation of the scoop (Tr. 67-69).
Mr. Slaman stated that after being trained by Mr. Hunt,
he would give him a "blue retraining slip," and since they
were dirty, Mr. Slaman would place them in his pocket or
dinner bucket. His wife would either throw them away or
launder them with his-shirts and he has not retained them. He
has also moved several times, and he has not been able to find
any of the training slips (Tr. 70).
Mr. Slaman stated that Norman Cutright, the longwall boss
at the Humphrey Mine has trained him in the operation of a
scoop, and that Mr. Hunt had trained him in the operation of a
Model 601 S&S scoop, the same type of scoop he was operating
at the time of the accident (Tr. 71).
Mr. Slaman stated that his duties as a longwall shieldman
required him to operate a scoop, and that Mr. Cutright trained
him on the scoop before two longwall moves in 1983 and 1984.
Since longwall moves are dangerous, experienced scoop men are
necessari
assigned to this work. Mr. Slaman also operated
scoops while doing work other than longwall moves, and he
described this work (Tr. 72). During the 2 years that he
worked under Mr. Cutright 1 s supervision from 1983 to 1984e
Mr. Slaman estimated that he operated a scoop at least 60 or
70 times (Tr. 73).
Referring to exhibit G-4, the inspector 1 s notes and
sketch of the accident scene, Mr. Slaman explained what
happened on the day of the accident. He stated that he was in
the process of moving a section of the pan line along the left
rib and that the pan line was in front of the scoop. He and
his helper were discussing how the pan line would be moved,

2182

and the helper was about 15 feet in front of the scoop and in
his view. Mr. Slaman then started the machine and rang the
bell and shoved the pan line against the rib with the scoop.
The scoop pivoted toward the right rib and he heard a grunt
and turned around and observed that he had pinned the helper
against the rib. Mr. Slaman stated that his line-of-sight was
toward the left-hand rib and that when he advanced the scoop
to move the pan line, he could not recall where the helper was
located because he was studying the pan line. He
t
recalled the helper being in front of him, and he believed
that the helper was watching him move the pan line and was not
paying attention to the scoop. Mr. Slaman stated that "I
didn't watch him, so I really don't know what he did" {Tr.
73-76).
Mr. Slaman stated that the Unitrac 488 scoop on which he
was trained at the No. 20 Mine had the same center pivot
point, steered the same, and had the same bucket and battery
as the 601 S&S scoop. The Unitrac was "a hair smal
" than
the S&S scoop (Tr. 76-77).
On cross-examination~. Mr. Slaman reviewed his prior
mining work and ~xperience, and the scoop training he received
at the No. 20 Mine. He confirmed that he received initial
training on the scoop at the Humphrey Mine sometime in 1980,
and that the training consisted of a review of the safety
aspects of the scoop, reading the SWI, and his boss observing
him operating the machine and discussing specific 11 do 1 s and
dent's" with him. Mr. Slaman stated that he operated the
scoop 20 times in 1980, 30-40 times in 1981, 50-60 times in
1982, 1983, and 1984, and 20-30 times in 1985 and 1986.
During these periods he operated the 601 S&S scoop, and on
occasion operated an Elkhorn scoop, and a 610 scoop which were
larger than the 601 (Tr. 77-83).
Mr. Slaman described his various jobs and duties at the
mine requiring him to operate scoops, and he confirmed that
there is no specific job classification of scoop operator at
the Humphrey Mine (Tr. 84-86).
Mr. Slaman confirmed that on each occasion when
was
trained, he received a nblue training slip,n but
t
no
longer has them, and they were either washed in the laundry or
thrown away. He stated that Mr. Hunt trained him on the 601
S&S scoop sometime between the end of 1985 and the end of
1986, and that Mr. Hunt observed him operating the machine to
make sure that he was operating it s
Mr. Slaman confirmed that Mr. Hunt gave him a "retraining slip" after he
observed him operating the machine (Tr. 88-89). Mr. Slaman

2183

explained that he threw away his training slips because they
were "dirty and grubby you end up sticking it in your pocket
or forget about them." Mr. Slaman stated that the individuals
who trained him retained a copy of the training slip, and they
are required to turn it in to the company, and he assumed that
this was done in his case (Tr. 90).
Mr. Slaman stated that 2 or 3 weeks before the accident
Charlie Johnson trained him on the scoop (Tr. 91), and that he
was also trained by Norman Cutright. Mr. Cutright advised him
that he turned his training slips into the safety department,
and Mr. Slaman indicated that as far as he knew the safety
department only had records of his training at the No. 20 Mine
(Tr. 95). Mr. Slaman stated that the training he received
from Mr. Johnson consisted of Mr. Johnson reading the "SWI
Form" to him and reviewing the safety aspects of the scoop.
Mr. Johnson wanted to insure that everyone had their training
up to date in anticipation of the longwall, and he did not
review the machine controls because "we were all familiar with
the scoop anyway" (Tr. 96-97). Mr. Slaman confirmed that he
received a scoop training certificate from Mr. Johnson, and
stated that 4 or 5-days prior.to the hearing, Mr. Johnson
informed him that he had turned a copy in to the safety department as was his usual practice (Tr. 98).
Mr. Slaman 'confirmed that copies of all training slips
are usually kept in his file with the safety department, and
that those records do contain copies of training slips for
other equipment for which he was trained (Tr. 98). He confirmed that he was trained in the operation of a 488 Unitrac
at the No. 20 Mine in 1977 to the end of 1978, and that he has
been in the Humphrey No. 7 Mine for approximately 8 or 9 years
(Tr. 99).
Mr. Slaman stated that the 601 and 610 S&S scoops are
basically the same, except that the 610 is bigger and the
operator's compartment is at the rear of the machine, and the
operator sits at the front of the 601 model.
The controls,
throttle, braking mechanisms, hydraulics, and steering are the
same for both machines, but the visibility is reduced in a
610, and he did not consider it to be a good piece 0£
machinery because of its larger size, and the fact that one
needed to have a
lper with him because he cannot see the
blade from the operator~s compartment.
In his opinion, the
two scoops operate the same way, and he does not have to be
trained when going from one machine to the other (Tr"
104-106)
0

2184

Mr. Slaman described the 488 Unitrac scoop which he
operated in the No. 20 Mine, and confirmed that it is not used
at the Humphrey No. 7 Mine. He stated that S&S scoops are
used in this mine, and that he was operating a standard 601
S&S scoop at the time of the accident, and that the 610 model
is rarely used except for heavy work. He confirmed that the
operator's compartment on the 601 model is at the front, the
same as on the Unitrac, and that the controls, brakes, and
tramming pedals are also the same as the Unitrac, and that
Mr. Hunt, Mr. Johnson, and Mr. Cutright all trained him on the
601. He also confirmed that he operated an Elkhorn Scoop,
four or five times, but could not recall when, and tnat his
training on that model was exactly like the training he
received for the 601 (Tr. 109-111}.
Mr. Slaman explained that the "retraining" he received to
abate the violation consisted of someone re-reading the Safe
Work Instructions CSWI) to him (Tr. 117). He was then
required to sign a safety training form attesting to the fact
that the SWI was read to him, and that the training form is
maintained by the safety department. The SWI's are kept on
the section where the scoo~s are operated, as well as in the
safety department- (Tr. 124).
Norman Cutright testified that he has worked at the
Humphrey No. 7 Mine for over 17 years, and has served as a
supervisor for 6 years. He has served as a longwall boss and
section foreman, and confirmed that he was Mr. Slaman 1 s supervisor for approximately a year and a half until a realignment
in December, 1984. He also confirmed that during this period,
he trained Mr. Slaman in the operation of a scoop, using the
applicable Safe Work Instructions CSWI) for scoop operators,
and he identified a copy of the SWI used for this training,
and explained the respondent 1 s MSHA approved training procedures he followed (Tr. 130-134; Exhibit R-1).
Mr. Cutright stated that he trained Mr. Slaman in the
operation of a scoop for the longwall move, and that during
such moves "you need a real good man to run the scoop" (Tr.
136). He confirmed that he trained Mr. Slaman for one longwall move in February, 1984, using the SWIR and he explained
how he did the training. He confirmed that at that time,
~r. Slaman was an experienced scoop operatorp and that he
observed him operating the scoop as part of his training. At
th~ completion of this training, Mr. Cutright stated that he
filled out a "5023 Form" kept in his foreman°s book, gave
Mr. Slaman his signed copy, and turned the remaining copies
into the safety department. Mr. Cutright assumed they were
placed in the company files (Tr. 136-138).

2185

Mr. Cutright stated that subsequent to the aforementioned
training, he trained Mr. Slaman again when he worked for him
as a shieldman for a second longwall move which occurred sometime in September, 1984, and that he regularly observed
Mr. Slaman operating a scoop during the time he worked under
his supervision. This latter training consisted of the same
SWI review procedures, and Mr. Cutright confirmed that he
followed the same routine in documenting Mr. Slaman's training
(Tr. 139). He further confirmed that on both occasions,
Mr. Slaman was trained in the operation of a 601 S&S Scoop,
and he considered Mr. Slaman to be a very good scoop operator.
He confirmed that Mr. Slaman was selected for the longwall
work because of his experience, and that this is critical due
to the hazardous nature of longwall face work and that "you
just don't put anybody on to run a scoop" {Tr. 141).
On cross-examination, Mr. Cutright stated that the SWI
(exhibit R-1) pertaining to a battery-operated scoop, was the
same one he used to train Mr. Slaman in 1984, and he confirmed
that the scoops have not changed in the past 3 or 4 years (Tr.
142). He also confirmed that he has trained Mr. Slaman on
other equipment, and that there have been no changes in the
601 S&S scoop (Tr. 1431. He stated that when he trained
Mr. Slaman in 1984, he did not review or verify his prior
training, and that the February training was over a period of
2 days and probably not longer because Mr. Slaman was an
experienced scoop operator, and the training included supervised personal scoop operational instructions and sessions,
and practice sessions (Tr. 145). Mr. Slaman was again trained
6 or 7 months later as a matter of routine to insure that
everyone on the longwall knew what was going on, and this
training session included supervised operational sessions
similar to the February training (Tr. 146). Mr. Cutright
confirmed that he has never reviewed Mr. Slaman's training
records (Tr. 147).
Mro Cutright confirmed that the September, 1984, training
consisted of his observations of Mr. Slaman operating the
scoop, and did not include practice sessions because
Mr. Slaman had been trained in that phase in February and it
was "just a retraining type thing" (Tr. 148). Mr. Cutright
confirmed that he was aware of the fact that there is no
record in the safety department of Mr. Slamanus training, and
he agreed that
was unusual not to have those records (Tr.
149)0 He could not further explain the absence of the
records? and he confirmed that he has trained other miners,
but has no idea whether or not their records are on file in
the safety department (Tr. 150)"

2186

Mr. Cutright stated that a Unitrac is a scoop of a different size, and confirmed that he had never seen one. He indicated that the term "Unitrac" is not one used in his mine, and
that the term is sometimes mentioned by miners from different
mines. When asked whether a 601 scoop is a Unitrac, he
responded "I suppose it is, depending on what mine you're working in, I guess," and that "there are different names -- different mines use different names for some things" {Tr. 152).
He confirmed that the scoop which Mr. Slaman was operating at
the time of the accident was the same type of 601 scoop that
he trained him on, and that since that training, he has not
trained Mr. Slaman further because he was assigned to a different shift after the realignment (Tr. 153).
David Hunt testified that he has been employed at the
Humphrey No. 7 Mine for 16 years, serves as an assistant shift
foreman, and that he has been a supervisor for 10 years. He
confirmed that he has supervised Mr. Slaman since the realignment in 1985, until a few months ago when he bid on a belt job.
Mr. Hunt confirmed that he was Mr. Slaman's supervisor on the
evening of July 19, 1986 1 when the accident in question
occurred. Mr. Hunt confirmed that he has trained Mr. Slaman
in the operation of-a battery operated 601 S&S scoop, as well
on other equipment. He stated that the first time he trained
Mr. Slaman on the scoop was sometime in 1985 during the 6 Butt
longwall move, and while he could not recall the specific
it may have been during the Fall of 1985. He also
1
observed Mr. Slaman operating the scoop numerous times throughout the
while working under his supervision, and confirmed that he used the SWI, exhibit R-1, during his training
of Mr. Slaman. He confirmed that the SWI is an MSHA approved
means of task training, and that the training would have
included his reviewing the SWI with Mr. Slaman, as well as his
phys
operation of the scoop. The review of the SWI would
have taken a
f-hourp and his observation of Mr. Slaman
the scoop would have been over a period of separate
c
i
follow-ups until he was satisfied that
Mr. Slaman could operate the scoop (Tr. 153-159).
Mr. Hunt stated that the mine uses 601 and 610 model
, and that they are basically the same, except that the
r. He may have also trained Mr. Slaman on the
he d
v he would follow the same training proce1 lowed when he trained him on the 601 model.
He conf i
that there are no separate training instructions
two models. Since the realignment of late December,
1984, he has observed Mro Slaman quite a few times using the
scoop while unloading cribs, and setting up and tearing down

2187

longwalls (Tr. 160). If an employee informs him that he has
been trained on the scoop, Mr. Hunt would allow him to operate
it. Mr. Hunt stated that he would be in violation of company
policy if he permitted an untrained miner to perform a task
for which he is not trained, and that Jue to day-to-day shift
changes and realignments underground, training records are not
readily available. In the event an employee informs him it
has been 6 months or a year since he had initially training,
he will fill out a basic "5023 form" Qr a retraining slip to
be on the "safe side" (Tr. 161-162).
Mr. Hunt confirmed that Mr. Slaman was classified as a
shuttle car operator when he worked under his supervision, but
he was considered to be trained and experienced in operating
a scoop, and the fact that he was a shuttle car operator did'
not forbid him from operating a scoop~ Mr. Slaman was specifically assigned to the longwall because he was considered to be
an experienced scoop operator, and at the time of the accident
on July 19, 1986, they were in the process of another longwall
move (Tr. 162).
On cross-examination, Mr~ Hunt confirmed that he was on
duty at the time of the accident, but was not present at the
irrunediate scene (Tr. 164). He did not train Mr. Slaman prior
to 1985, other than the one time on the 601 scoop, and his
section foreman would have taken care of that. Mr. Hunt confirmed that prior to training Mr. Slaman, he asked him whether
he had ever been trained in the use of the scoop, and he
replied that he had. However, he did not review his training
records at any time (Tr. 165). He confirmed that some of his
follow-up supervision of Mr. Slaman in the operation of the
scoop during longwall moves may have been on the 610 model,
because it was used to unload cribs (Tr. 166). Although the
610 may have been on the section at the time of the accident 9
they were not being used that day 9 and he did not observe
Mr. Slaman operating the 610 that day (Tr. 170).
Mr. Hunt stated that Mr. Slaman had the initial training
indicated in the SWI for battery scoops, and it would make no
difference whether he operated the 601 or 610 models, because
they are basically the same machinep except that the 610 is
larger (Tr. 171). He confirmed that his training of
Mr. Slaman on the 601 scoop would have been follow-up training
because Mro Slaman informed him that he had previously been
trainedp and he believed his follow-up training occurred sometime in the Fall of 19850 Mr" Slaman was trained at that time
because in all longwall moves 1 Mr. Hunt wants to make sure
that everyone involved in the move is trained. Since he had
previously observed Mr. Slaman operating the scoop, there was

2188

no need for initial training, but he did review the SWI with
him, and observed him going over his "check" procedures and
operating the machine (Tr. 174). He did not fill out any
training certificate at that time, because he was under the
assumption that he had been initially trained, and he had
observed him, and there was no need to fill out another
certificate (Tr. 175-176).
Mr. Hunt explained the procedures he normally follows
with respect to the filing of training certificates with
Consol's safety department at the end of the month after training his employees. He confirmed that he keeps them in his
pocket as they are accumulated before the end of the month,
and that his wife has on occasion laundered some of them (Tr.
177). He confirmed that he was aware of the regulations con~
earning training record keeping and has followed them. He
could not explain why Mr. Slaman 1 s training records could not
be located, and indicated that once he turns them in, "it's
out of my hands" (Tr. 178). Mr. Hunt reiterated that he did
not prepare a training certificate for Mr. Slaman after he
trained him in 1985 because he believed that he had previously
been trained, and he confirilied that after this training, he
observed Mr. Slaman operating the 601 scoop. He assumed that
Mr. Slaman had operated it at least 2 weeks before the accident occurred, because he knew he was assigned to the longwall
and Mr. Slaman had indicated to him that "he had been up there
for quite a while" (Tr. 178}. Mr. Hunt did not observe him
during this time because he was on vacation.
Mr. Hunt could not specify how often he observed
Mr. Slaman operating the scoop between the time he trained him
in 1985 and the time he went on vacation, but that anytime he
would observe him on a scoop in his working area he would
always check to see what work was done during the shift (Tr.
l79)" He specifically recalled one occasion when he sought
out Mr" Slaman to advise him of a new state requirement that
all scoop operators walk their roadways to check for debr
but he could not remember when this was (Tr. 180).
Mr" Hunt confirmed that he was not contacted or interviewed by any MSHA inspectors during the course of the accident investigationu and that Mr" Gibson did not
to him
before issuing the violationv and did not ask him about
Mro Slamanijs training (Tr. 183).

Inspector Gibson was recalled by the Court
as

follows~

2189

and he stated

BY JUDGE KOUTRAS:

Q. Mr. Gibson, you've been sitting here
listening to all this testimony brought forward
by Consolidation Coal Company with regard to
the training that Mr. Slaman has received.
Okay?
A.

Yes.

Q.

Now, assuming I can believe all that testimony, from what you've heard today, do you feel
this man has received adequate task training to
comply with the regulations, based on what
you've heard?
A.
From what I've heard, if it's true, I think
he has had adequate training. But there was no
record of it.

Q.

I understand that. And still, that hasn't
been explained yet. Mr: Peelish opted not to
call the record~eeper and let me grill him.
But from what you've heard of the testimony,
you feel the man was adequately trained.

A.

Yes.

Q.
Have you ever had any similar occurrences
as this were a mine operator hasn't been able
to produce training records?
A. Vaguely, I remember one, I think, at Osage
Number 3 Mine.

Q.

Another Consol

MR.

PEELISH~

Another Consol Mine.
Findings and Conclusions

Consol is charged with an alleged violation of mandatory
training standard 30 C.F.R. § 48.7u which provides in relevant
part as follows~
48.7 Training of miners assigned to a task in
which they have had no previous exparience;
minimum courses of instruction.

2190

(a) Miners assigned to new work tasks as
mobile equipment operators, drilling machine
operators, haulage and conveyor systems operators, roof and ground control machine operators
• . • shall not perform new work tasks in these
categories until training prescribed in this
paragraph and paragraph (b) of this section
have been completed.
• • • The training program shall include the following:
(1) Health & safety aspects and safe operating procedures for work tasks, equipment and
machinery. The training shall include instruction in the health and safety aspects and the
safe operating procedures related to the
assigned tasks, and shall be given in an
on-the-job environment, and
(2)(1} Supervised practice during
non-production. The training shall include
supervised practice in the assigned tasks, and
the performance of work duties at times or
places where production is not the primary
objective; or
(ii) Supervised operation during production. The training shall include, while under
brief and imrnediata supervision and production
is in progress, operation of the machine or
equipment and the performance of work duties.
(3) New or modified machines and equipment. Equipment and machine oparators shall be
instructed in safe operating procedures applicable to new or modified machines or equipment to
be installed or put into operation in the mineQ
which require new or different procedures.

*

*

*

*

*

*

*

(b) Miners under paragraph Ca) of this
section shall not operate the equipment or
machine or engage in blasting operations without direction and immediate supervision until
such miners have demonstrated safe operating
procedures for the equipment or machine or
blasting operation to the operator or the operator's agent.

2191

(c) Miners assigned a new task not
covered in paragraph (a) of this section shall
be instructed in the safety and health aspects
and sate work procedures of the task, prior to
performing such task.

*

*

*

*

*

{e) All training and supervised practice
and operation required by this section shall be
given by a qualified trainer, or a supervisor
experienced in the assigned tasks, or other
person experienced in the assigned tasks.
Paragraph (a) of section 48.7, contains two exceptions to
the stated new task training requirements; and they are as
follows~

This training shall not be required for
miners who have been trained and who have demonstrated safe operating procedures for such new
work tasks within 12 moeths preceding assignment. This trarning shall also not be required
for miners who have performed the new work
tasks and who have demonstrated safe operating
procedures for such new work tasks within
12 months preceding assignment.
The term "task" for purposes of the training requirements
of the cited standard is defined as follows at section
48.2(a)(2)(f):
"'Task' means a work assignment that includes
duties of a job that occur on a regular basis and which
requires physical abilities and job knowledge."

MSHA cites two judges decisions in FMC Corporation v.
: 7 FMSHRC 1553 (October 1985), and
v" WRW Corporationr 7 FMSHRC 245 (February
,
n suppor of its conclusions that an untrained mobile
equipment operator poses a hazard to his fellow miners, and
that new task training promotes mine safety by giving miners
greater awareness of work hazards.
Although I agree with
MSHA=s conclusionsr upon review of those decisions, I £ind
tnat
are distinguishable from the facts in the instant
case¢

~~~~--"-~~~~~

In cne FMC Corporation case, Judge Lasher affirmed a violation of section 48.27 after finding that a foreman assigned
a bulldozer operator to operate a front-end loader. The miner
had never been required to operate a loader, had not been

2192

trained in its operation, and the foreman had not·previously
observed him operate the loader, and did not believe that he
had been trained in its operation. Further, once the miner
proceeded to operate the loader, the foreman was displeased
with his oerformance, but failed to remove him from the
machine. ·The miner ultimately requested another miner to
finish up his work with the loader because he was uncomfortable with the machine, and when the work was finished, the
untrained miner drove the machine bacR to its original
location.
In affirming the citation in the FMC Corporation case,
Judge Lasher relied on the fact that the loader was substantially different from a bulldozer because of substantial differences in weight, size, function, controls, brakes, speed,
and the moving and steering mechanisms.
Even so, Judge Lasher
observed that new task training is not automatically or necessarily required every time a miner is assigned to a new piece
of equipment, and that the assignment would not be deemed a
new work task if the new piece of equipment was essentially
the same as the one regularly operated by the miner in the
past.
·
The WRW Corporation case involved a situation in which
two miners with no training and less than a month of experience died of carbon monoxide poisoning while working in an
underground mine.
Judge Melick found that the deaths resulted
from grossly inadequate ventilation resulting from unlawful
blasting, and his affirmance of violations of section 48.5 and
48.7, was based on the fact that the miners had absolutely no
training at all, and that one of the miners began working in
the mine on the night of his death.
The record in this case reflects that the foreman who
trained Mr. Slaman in the operation of the scoop did not
review his training records to confirm that he had in fact
received prior training. MSHA suggests that the reason Consol
maintains training records is so that they may be reviewed.
I
would suggest that Consol keeps training records because it is
required to do so pursuant tv MSHA's regulations, and that its
failure to do so will subject it to a citation. Although from
a safety standpointf one would expect a prudent mine operator
and supervisor to maintaiu its training records in such a manner as to have them readily available to insure that its work
force is properly trained, Consol in this case is not charged
with sloppy or non-existent record keeping.
It is charged
with a failure to properly train a scoop operator. Further, I
find nothing in MSHA 1 s record-keeping regulation, section

2193

48.9, that requires an operator to review an employee's training record to assure itself that he has adequate training.
If
MSHA geems this critical, then I suggest that it consider
amending its regulation to make this a requirement. Although
the facts in this case suggests that Consol has a serious
problem with the record-keeping procedures of the mine safety
department, and its counsel candidly admitted as much during
the course of the hearing, this is a matter that MSHA may wish
to consider in any future compliance inspections at the mine.
While I agree that Consol's failure to produce copies of
Mr. Slaman's scoop training records raises an inference that
he was not trained, I find no basis for concluding that all of
its witnesses who have testified in this case have lied or
perjured themselves. To the contrary, having viewed the wit~
nesses during their testimony, they impressed me as credible
individuals, and I find their testimony as to the training
received by Mr. Slaman in the operation of a scoop to be
believable and credible.
Inspector Gibson himself candidly
conceded that assuming the witnesses are believable, he would
agree that Mr. Slaman received proper scoop training prior to
the accident in compJiance with MSHA's requirements. Inspector Gibson also agreed that if he were a section foreman, and
needed a job done, he would have to rely on a miner's assurance to him that he was trained on a piece of equipment needed
to do the job (Tr. 49). He also agreed that if an employee
worked for him a number of times and he initially trained him
and then observed him operating a piece of equipment, he would
not necessarily train him again prior to assigning him a task,
provided these observations were recent and within a 12-month
period (Tr. 50).
MSHA's assertion that Consol may not avail itself of the
first exception found in paragraph (a) of section 48.7,
because its records do not reflect any task training for
Mro Slaman within 12-months prior to his being assigned to
operate the scoop in July, 1986, raises an inference that this
was the first time Mr. Slaman was assigned to operate the
scoop in a longwall work environment. This is not the case,
and the record shows otherwiseo
While it is true that·Consol and Mr. Slaman have not produced any copies of Mr. Slaman's scoop training certificates,
Mr. Slamanv who has worked at the No. 7 Mine continuously
since 1978, testified that since that time and up to the time
of the accident on July 19, 1986, he had operated a scoop at
least "a couple of hundred times," and since 1981 or 1982, he
operated it "pretty continuously." He estimated that he operated the 601 S&S scoop, the type he was operating at the time

2194

of the accident, at least 20 or 30 times in 1985 and 1986, and
that on occasion he has operated an Elkhorn model and a model
610. Mr. Slaman also testified that during his employment in
the mine he has received training and retraining in the operation of a scoop from at least 10 individuals, including one
Charlie Johnson, and foremen Norman Cutright and David Hunt,
both of whom testified in this case.
Mr. Slaman confirmed that his prior duties as a longwall
shieldman required him to operate a scoop, and that during two
longwall moves in 1983 and 1984, he was given scoop training
by Mr. Cutright. Mr. Slaman also described other non-longwall
work which he has performed, during which he operated a scoop.
Longwall section foreman Cutright confirmed that he trained _
Mr. Slaman in the operation of the 601 S&S scoop during two
longwall moves which occurred in February and September 1984.
Mr. Cutright considered Mr. Slaman to be an experienced and
competent scoop operator, and he confirmed that Mr. Slaman was
specifically assigned to the longwall moves because the hazardous nature of such work requires an experienced and trained
scoop operator.
Foreman David"Hunt testified that he was Mr. Slaman's
supervisor from 1985 until a few months prior to the hearing
of August 27, 1987, when Mr. Slaman bid on another job.
Mr. Hunt testified that he first trained Mr. Slaman in the
operation of the 601 S&S scoop sometime during the fall of
1985 when the 6 Butt Longwall was being moved, and that subsequent to this training he observed Mr. Slaman operating the
scoop on numerous occasions during the year while working
under his supervision, including other longwall moves.
Although Mr. Hunt stated that he was on vacation during the
2-week period immediately prior to the accident, he confirmed
that he knew Mr. Slaman was assigned to the longwall move that
was taking place at the time of the accidentu that he had previously observed Mr. Slaman operating the scoop during his
sits to the section to check on the progress of the work on
section, and he had previously observed Mr. Slaman operating a scoop while moving cribs.
Mr. Hunt testified that he considered Mr. Slaman to be an
experienced trained scoop operator 0 and he confirmed that
Mr. Slaman was assigned to do work on the longwall because of
his experience and training. Mr. Hunt considered his training
of Mr. Slaman on the scoop to be retraining or "follow-up"
trainingu and that this is normally done when a longwall is to
be moved in order to insure that miners involved in such moves
are trained to do the work safely. Mr. Hunt confirmed that at
the time he conducted his follow-up training of Mr. Slaman,

2195

since he had observed Mr. Slaman operating a scoop, and since
Mr. Slaman advised him that he was an experienced scoop operator and had received prior training, Mr. Hunt saw no need to
give him any initial training.
With regard to MSHA's assertion that Consol may not avail
itself of the section exception found in paragraph (a) of section 48.7, I take note of the fact that this exception contains two conditions. The first condition requires a showing
that the miner has performed the work task in question within
12-months preceding the work assignment, and the second condition requires a showing that the miner has demonstrated safe
operating procedures for the task within this same time frame.
With respect to the first condition, I conclude and find that
the respondent's credible testimony establishes that
Mr. Slaman operated a 601 S&S scoop on a fairly regular basis
within the 12-month period prior to the accident, and that he
was an experienced and trained scoop operator.
Mr. Slaman confirmed that Mr. Hunt retrained him to abate
the violation, and that prior to the accident Mr. Hunt routinely retrained him,_ worked with him a lot, and observed him
operating the scoop: Although Mr. Slaman could not recall
whether Mr. Hunt read him the Safe Work Instructions, he nonetheless confirmed that during Mr. Hunt's training, he would go
over safety topics, "read me the retraining," instructed him
in the operation of the scoop, and prior to assigning him any
tasks, would ask about his scoop training. Mr. Slaman also
confirmed that Mr. Hunt would retrain him from time-to-time,
and he recalled one particular occasion when Mr. Hunt discussed the need to walk the roads looking for obstructions
(Tr. 67-69; 88). Mr. Slaman also confirmed that he was
retrained by Charlie Johnson on the scoop 2 or 3 weeks before
the accident, and that Mr. Johnson read him the SWI and
reviewed its "safety aspects." Mr. Slaman conceded that
Mr. Johnson did not review the scoop controls with him, and he
explained that this was because he was already familiar with
the controls (Tr. 96).
MSHA assert3 that Consol has failed to show that
Mr. Slaman demonstrated safe operating procedures for the
scoop within the 12-month period preceding the accident. MSHA
suggests that the statement made by Consol 1 s counsel during
the course of the hearing that no follow-up training is necessary if the miner in question operates the equipment at least
once a year (Tr. 205)v seems to be a loose reading of the
"demonstration" required by the standard. Conceding that the
term "demonstration" has not yet been interpreted by case law,

2196

MSHA submits that the plain meaning of the phrase "demonstrating safe operating procedures" entails more than the mere operation of the equipment. MSHA suggests that Mr. Slaman was
somehow required to demonstrate to his supervisors that he
could safely operate the scoop, but does not elaborate on how
it expects this to be done. I find MSHA's argument to be as
nebulous as the phrase it has attempted to explain.
Consol has established that the SWI used as part of
Mr. Slaman's training has MSHA's approval, and that it was
used in conjunction with his foreman's personal observations
of his operation of a scoop on a number of occasions while in
an underground work environment, particularly on the longwall.
Further, there is no evidence in this case that Mr. Slarnan has
ever been involved in any prior accidents, or has ever been
disciplined or cited for operating his scoop in an unsafe
manner, and his supervisors considered him to be a competent
and well-trained scoop operator.
MSHA's suggestion that the accident itself is ample evidence of Mr. Slaman's inabi~ity to safely operate a scoop is
rejected. I cannot-conclude that the occurrence of the accident per ~ establishes that Mr. Slaman was not trained in the
technical and safe operation of the scoop he was operating at
the time of that incident. Accidents involving miners whose
training records may reflect that they are trained may occur
at any time in an underground mine environment given the circumstances of each such incident. Since MSHA did not introduce its report of investigation concerning the accident, I
have no way of knowing the extent and scope of Inspector
Gibson's investigation of that incident. I take note of foreman Hunt's unrebutted testimony that Mr. Gibson did not
discuss Mr. Slaman's training with him, and there is no indication that he discussed it with foreman Cutright.

Mro Slaman testified that immediately prior to the acciwas concentrating on moving the pan line with the
scoop, and that when he last observed the accident victim, he
observed him in front of the scoop watching him move the pan
line. He had no idea how the victim came to position himself
next to
rib as it pivoted and pinned him against the rib.
Inspector Gibson"s notes reflect that 11 a breakdown in communication between the operator of the scoop and his helper
resu
in this accident" (Exhibit G-4). Under the circumstances, it is altogether possible that the accident victim
contributed to the accident though his inattention and lack of
training.
~-

2197

Inspector Gibson's abatement notice reflects that the
citation and order were abated after Mr. Slaman was task
trained "in the safe procedures of operating a scoop," and
that all foremen and personnel "have been instructed that all
persons will be in a safe position before equipment is moved
or trammed." Mr. Slaman's unrebutted testimony is that this
"training" simply consisted of someone reading the SWI to him,
and his signing a safety form attesting to this fact, and that
the form is on file with the company's safety department.
Although the abatement action taken by Consol included cautionary instructions to individuals other than the equipment
operator, Consol's counsel suggested that while there is no
requirements that scoop helpers be included in the SWI training given equipment operators, all mine personnel are
instructed to stay clear of tramming equipment as a general
safety precaution (Tr. 197). In any event, the issue here is
whether the scoop operator, not the helper, had received
adequate training, and Consol has not been cited for any lack
of training on the part of the helper who was injured. In the
final analysis of this case, I am convinced that Inspector
Gibson issued the violation because a serious accident had
occurred and Consol cpuld produce no records attesting to the
fact that Mr. Slaman was a trained scoop operator. However, I
am not convinced that MSHA has presented any credible evidence
to support any such conclusion, or to support a violation of
30 C.F.R. § 48.7. Accordingly, the contested citation and
order ARE VACATED.
ORDER
In view of the foregoing findings and conclusions, IT IS
ORDERED THAT section 104(a) Citation No. 2713397, and section
104{g)(l) Order No. 2713396, issued on July 21, 1986, BE
VACATEDo MSHA's proposal for assessment of civil penalty for
the alleged violation in question IS DENIED AND DISMISSEDo

,,!/p/11I Ju~,:;z::,..,,
v qe6r~e )A-:. ~~utras

iVdministrative Law Judge

Distribution:
Therese I. Salus, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 <Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)

/fb

2199

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

22041

DEC 221987
WHI'fE COUNTY COAL CORPORA'rION,

CONTEST PROCEEDINGS

Contestant

v.

Docket No. LAKE 86-58-R
Order No. 2817373; 2/6/86

SECRETARY OF LABOR,
MINE SAFE"rY AND HEALTH
ADMINISTR..Z\TION (MSHA),
Respondent

Docket No. LAKE 86-59-R
Orde.c No. 2817375; 2/12/86
Pattiki Mine
DECISION

Bef o~e:

Judge Melick

These cases are, before me upon remand by a majority of the
Commission for Eurther proceedings consistent with its decision
dated September 30, 1987. On November 30, 1987, the following
stipulations were filed with the undersigned:
1. On February 6, 1986, MSHA Inspector Wolf~ang
Kaak inspected White County Coal Corporation's ("White
County") Pattiki Mine.
During his inspection,
Inspector Kaak discovered that a chalk centerline had
been drawn across an area of unsupported roof in a face
area.
Despite the fact that the Inspector did not
observe the violation, he issued a§ 104(d)(l) order of
withdrawalu alleging an unwarrantable violation of 30
CoFoRo § 750200 as follows~
A chalk centerline was observed on the roof
of Room #6 running from the last row of
permanent supports, roof bolts, inby to the
faceo
This area was and had not been
supported when the coal drill operator, CD.
Marshall), made the centerline on the roof.
The distance from the last row of bolts to
the face was 13 ft.
Working section I.D.
003-Qo
Order No" 2817373. The order was terminated 25 minutes
after it was issued, following crew reinstru~tion on
the roof control plan.

2200

2. On February 12, 1986, Inspector Kaak visited the
Pattiki Mine and saw some footprints in an area of
unsupported roof. Despite the fact that he did not see
anyone walk under unsupported roof, he immediately issued a
§ 104(d)(2) order of withdrawal alleging an unwarrantable
violation of 30 C.F.R. § 75.200:
Physical evidence, footprints, were observed
going through an area of unsupported roof in
the X-cut between Entry No. 6 and Entry No. 7
at Curve Y Spad No. 1773. The opening
averaged about 10 ft. long by 10 ft. wide.
The height average was 6 ft.
The area was
rockdusted and footprints were clearly
visible. Working Section I.D. 002-0.
Order No. 2817375. The order was terminated
approximately one hour after it was issued, after the
crew was r
nstructed on the t'Oof control plan and the
area had been permanently supported.
3. On March 7~ 1986, ~bite County filed Notices of
Contest challengin§ Order No. 2817373 and Order No. 2817375.
The cases were consolidated by the Administrative Law Judge.
4. On April 25, 1986, White County filed a Motion
for Summary Decision alleging that Order Nos. 2817373
and 2817375 were invalid because the violations had
already been abated when the closure orders were issued
and that Section l04(d) closure orders can only be
issued for existing practices or conditions actually
perceived by an MSHA inspector as required by the
Federal Mine Safety and Health Act of 1977 ("the Act").
~he Secretary filed a response in opposition to White
Countyus motion.
5. On .June 9; 19 86, the Administrative Law Judge
granted White County's Motion for Summary Decision and
modified the orders to Section 104(a) citations.
6,
The Ad.ninistrative Law Judge issued an order
dismissing the cases on June 30u 1986, noting that ~hite
County did not "dispute either the existence of the
violations alleged in these citations or the 1 significant
and substantialu findings associated therewith".
7o
After briefing and or~l argument, the
Commission issued a decision on September 30, 1987,
reversing the Administrative Law Judge's decision as to
~hite County's motion for Summary Decision and vacating

2201

his modification of the Section 104(d) orders to
Section 104(a) citations. The Commission remanded the
case [to] sic the Administrative Law Judge for further
proceedings.
8. Because White County wishes to obtain proffipt
review of the Commission's Septa~ber 30, 1987, decision
but is unable to do so until a final order is issued in
this matter, it has entered into tfiese stipulations to
eliminate the less important issues which remain in
order to facilitate and expedite such review.

9. White County hereby agrees to withdraw its Notices
of Contest to the extent that White County no longer
challenges the finding of unwarrantability. White County,
despite the Commission's September 30, 1987, decision in
this case, continues to contest the§ 104(d) orders on the
grounds that they were based on an investigation of past,
already abated, violations instead of an inspection of
existing violations as White County contends § 104(d)(l)
requires.
. ,.

10. With this limitation of the basis of White County's
challenge to the orders, the Commission's resolution of the
issues raised by White County's Motion for Surmnary Decision
as to whether a Section 104(d) order can be based on an
investigation of a past, already abated, violation instead
of an inspection of an existing violation is dispositive of
White County's Notices of Contest, and on that basis, it is
stipulated that it would be appropriate; that the
Administrative Law Judge enter a final order in these cases.
11.

No further heacings are necessary in this matter.

The above stipulations are accepted for purposes of these
oroceedingso The record is sufficient from which it can be
inferred that the admitted v:iolations were caused by the
"unwarrantable failure 11 of the mine operator to <tomply with the
cited standards. The Contests herein are accord ngly denied and
dismissed on the basis of the Commissionis decisi n in these
cases rendered September 30, 1987. '/
,
(,'
\
II

,'f-

/

G:ry M
~dmini.

(703)

2202

1

I

'fl

1

j
.,

')

,

La~

Judge

.

\ /

I

' (.

J~~kl '--- \\ ·-. L" ~(_/~,(.. ~\

trative
56-6261

~J

Distribution:
Timothy M. Biddle, Esq., Barbara~. My~rs, Esq., Crowell &
Moring, 1100 Connecticut Ave., N.W., Washington, DC 20036
(Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
.
npt

2203

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO

80204

DEC 28 1987

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 87-204-M
A.C. No. 26-01874-05504

v.

West Ann Road Pit

M & M CONSTRUCTION INC.,
Respondent
DECISION
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California,
for Petitioner;
Tommy F. Deaver, Esq., Deaver & Associates, Las
Vegas, -Nevada,
for Respondent.

Before:

Judge Cetti
Statement of the case

This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., (Mine
Act).
The Secretary of Labor on behalf of the Mine Safety and
Health Administration, charges the operator of the West Ann Road
Pit with the violation of 9 Mine Safety and Health standards"
This proceeding was initiated by the Secretary with the
filing of a proposal for assessment of civil penalties"
The
operator filed a timely appeal contesting the existence of the
alleged violations and the amount of the proposed civil penalties.
The hearing was held on November 18 0 1987 0 at 10:00 a.m.
Discussion
, Vaughn Do Crowley 0 an MSHA mine inspectoru based upn his
April 15v 1987v inspection of the West Ann Road Pit issued nine
citations to respondent alleging eight violations of safety
standard 30 CoF.R. § 56.14001 and one violation of safety
standard 30 C.F.Ro § 56014006"

2204

Section 56.14001 requires guarding of exposed moving machine
parts which may cause injury when contacted by persons.
Section
56.14006 requires machinery guards to be securely in place while
machinery is being operated except when testing machinery.
On May 13, 1987, MSHA issued proposed assessments totaling
$1,728.00. The proposed assessments were duly contested.
At the November 18, 1987 hearing the parties on the record
stated that they had reached a settlement subject to the approval
of the judge and filed a motion for an order approving the
settlement.
Counsel for the Secretary proposed that the penalty for each
of the nine alleged violations be reduced from $192.00 to $111.00
thus reducing the original proposed penalties totaling $1,728.00
to a total of $999.00.
The amended proposed penalties take into account those
factors required to be considered by Section llOCi) of the Act.
Stipulations
The parties stipulated as follows:
1. History - in the previous twenty-four months respondent
has had eight assessed violations.
2. Size - The size of the respondent operator at its one
facility is approximately 5,000 man-hours per year. This is
a small operation.
3. Ability to Continue in Business - Payment of the
proposed penalties will not impair the ability to continue
businesso
4o
Good Faith - Respondent abated the violative conditions
within the required time for abatement.
So

Negligence - Negligence is considered moderate.

60
Gravity - Further analysis indicates that only one
employeev rather than two employees, is reasonably likely to
be exposed to these violations. Thus, while still
significant and substantial violations, the gravity is less
and the penalties should be reduced accordingly.

Respondent withdrew its notice of contest and agreed to pay
the proposed penalties as amended.

2205

Conclusions
After careful review and consideration of the pleadings,
arguments, and the information placed upon the record at.the
hearing, I'm satisfied that the proposed settlement disposition
is reasonable, appropriate and in the public interest.
It is
consistent with the criteria in Section llO(i) of the Act.
Accordingly, the motions made at trial are granted.
ORDER
Good cause having been shown each of the nine citations is
affirmed and respondent is ordered to pay a civil penalty of
$999.00 within 30 days from the date of this decision.

Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, U.S.
Department of Labor, 71 Stevenson Street, 10th Floor, P.O. Box
3495u San Francisco, CA 94119-3495 (Certified Mail)
Tommy F. Deaver, Esq., Deaver & Associates, 810 East Charleston
Boulevard, Las Vegas, NV 89104 (Certified Mail)

/bls

2206

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

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

DEC 291987
YOUGHIOGHENY & OHIO COAL
COMPANY,
Contestant

CONTES'r PROCEEDING
Docket No. LAKE 86-30-R
Order No. 2823831: 11/19/85

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

Nelms No. 2 Mine

SECRE'rARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
PetJt.ioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 86-56
A. C. 33-00968-03629

v.
Nelms No. 2 Mine
YOUGHIOGHENY & OHIO COAL
COMPANYu
Respondent
DECISION
Before:

Judge Melick

These cases are before me upon remand by the Commission on
December llv 1987u to reconsider the civil penalty assessment for
the violation charged in Order Noo 28238310 Youghiogheny & Ohio
Coal Company v. Secretary of Labor etc.v 9 FMSHRC ~~ (Docket
No. LAKE 86-21-R et. al.).
In its decision the Commission held
that the so called 11 hole through" violation cited in the order
was not "significant and substantial". Although the violation
resulted in a large area of unsupported roof being exposed
the Commission did not believe that there was a reasonable
likelihood that a roof fall would result in an injury.
It stated
as follows~
It is undisputed that the section foreman operating the
continuous mining machine was under supported roof at
all times when he made the fan cuts and the "hole
through." [citations omitted]
It also is undisputed
that Y&O was not going to mine further the rooms
involved; these were the last cuts. Thus, had normal
mining operations continued, no miners would have
entered the rooms in which the "hole through" occurred.

2207

In addition, Y&O posted danger signs at the entrance to
the rooms leading to the "hole through." In light of
these facts, we hold that substantial evidence does not
support the judge's conclusion that the violation
significantly and substantially contributed to a mine
safety hazard.
If one accepts these findings, then the violation must be
characterized as non-serious. The violation was, however, the
result of a high degree of negligence and the operator has a
substantial history of violations.
In determining an appropriate
civil penalty for the violation I am also considering the factors
noted in my decision below that 11 the mine operator abated the
cited conditions in a timely and good faith manner, [and it] was
moderate in size."
(8 FMSHRC at pages 954-955). Under the
circumstances, and in consideration of the Commission's findings
noted herein, a civil penalty of $300 is appropriate.
ORDER
The Youghiogheny & Ohio Coal Company is hereby ordered to
pay a civil penalty of $300 for the violation charged in Order
No. 2823831 and, if lt has not already done so, to pay civil
penalties totalling $1,272 within 30 days of the,date of this
decision for the violations charged in the capt· ned civil
penalty proceeding.
~

.!

1J ~l"'
1

G1,J ' -..:....

11

Gaty Mel ck
Administ ative
(703) 75 -6261
Distribution~

\

Robert c. Kota, Esq.u Youghiogheny & Ohio' coal Company, P.O. Box
1000, St. Clairsville, OH 43950 (Certified Mail)
Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department
of Labor, 881 Federal Office Building, 1240 East Ninth, Street,
Cleveland, OH 44199 (Certified Mail)
npt

2208

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

DEC 291987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
:

Docket No. WEVA 87-272
A. C. No. 46-07273-03501

v.
No. 1 Mine
BIRCHFIELD MINING INCORPORATED,:
Respondent
DECISION
Appearances:

Before:

Mary K. Spencer, Esq., Office of the Solicitor,
u. s. Department of Labor, Arlington, Virginia for
Petitioner;
William D. Stover, Esq., Beckley, West Virginia for
Respondent.

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section 105Cd) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et.
seq., the "Act," charging Birchfield Mining Incorporated
(Birchfield) with one violation of the mandatory regulatory
standard at 30 C.F.R. § 75.303(a). The general issue before me
is whether Birchfield violated the cited regulatory standard and,
if so 1 whether the violation was the result of the "unwarrantable
failure 1" of Birchfield to comply with the standard and whether
the violation was of such a nature as could significantly and
substantially contribute to the cause and effect of a mine safety
or health hazard, i.e., whether the violation was "significant
and substantial." If a violation is found, it will also be
necessary to determine the appropriate civil penalty to be
assessed in accordance with section llO(i) of Acto
The citation at bar, issued pursuant to section 104(d)(l) of
the Act, charges as follows~
An inadequate preshif t examination was made in the 001-0
graveyard main section in that the results of the
examination was [sic] not reported to a person designated by
the operator to receive such reports at a designated station
on the surface of the mine before other persons enter the
underground area of such mine to work in such shift. The

2209

results were not recorded in the approved record book and a
[sic] examination of the cited MMU showed no dates, times or
initials have been placed in conspicuous locationso
The cited standard, C.F.R § 75.303(a) provides as follows:
[w]ithin 3 hours immediately preceding the beginning of any
shift, and before any miner in such shift enters the active
workings of a coal mine, certified-persons designated by the
operator of the mine shall examine such workings and any
other underground area of the mine designated by the
Secretary or his authorized representative. Each such
examiner shall examine every working section in such
workings and shall make tests in each such working section
for accumulations of methane with means approved by the Secretary for detecting methane, and shall make test for
oxygen deficiency with a permissible flame safety lamp or
other means approved by the Secretary; examine seals and
doors to determine whether they are functioning properly;
examine and test the roof, face, and rib conditions in such
working section; examine active roadways, travelways, and
belt conveyors on whi£h men are carried, approaches to
abandoned areas and~accessible falls in such section for
hazards; test by means of an anemometer or other device
approved by the Secretary to determine whether the air in
each split is traveling in its proper course and in normal
volume and velocity; and examine for such other hazards and
violations of the mandatory health or safety standards, as
an authorized representative of the Secretary may from time
to time require. Belt conveyors on which coal is carried
shall be examined after each coal-producing shift has begun.
Such mine examiner shall place his initials and the date and
time at all places he examines. If such mine examiner finds
a condition which constitutes a violation of a mandatory
health or safety standard or any condition which is
hazardous to persons who may enter or be in such areau he
shall indicate such hazardous place by posting a ttdanger"
sign conspicuously at all points which persons entering such
hazardous place would be required to pass, and shall notify
the operator of the mineo No person other than an
authorized representative 0£ the Secretary or a State mine
inspector or persons authorized by the operator to enter
such 9lace for the purpose of eliminating the hazardous
condition therein, shall enter such place while such sign is
so postedo Upon completing his examination, such mine
examiner shall report the results of his examination to a
personF designated by the operator to receive such reports
at a designated station on the surface of the mine, before
other persons enter the underground areas of such mine to
work in such shift. Each such mine examiner shall also

2210

record the results of his examination with ink or indelible
pencil in a book approved by the Secretary kept for such
purpose in an area on the surf ace of the mine chosen by the
operator to minimize the danger of destruction by fire or
other hazard, and the record shall be open for inspection by
interested persons.
John Baugh, a Coal Mine Inspector for the Federal Mine
Safety and Health Administration (MSHA) -arrived at the Birchfield
No. 1 Mine at about 7:20 a.m. on April 2, 1987, in conjunction
with his work as an ventilation specialist. At that time Baugh
observed several miners, who had just changed into work clothes,
proceed underground. It is not disputed that these miners were
part of the 8:00 a.m. to 4:00 p.m. day-shift crew. Apparentl~
concerned that the day shift crew was entering the mine before
the completion of the preshift examination, Baugh checked the
mine examiner's books and found no entry for the corresponding
preshift exam. Baugh then proceeded underground and found no
initials, dates or times evidencing a preshift examination. A
"fire boss board" outside the mine portal did show that the mine
had been "cleared" but only.for the preceding midnight shift.
Thus it appeared to-Inspector Baugh that the day shift employees
had gone underground before the preshift examination had been
reported out.
Richard Henderson, the midnight shift section foreman, was
told of the alleged violation and reportedly then agreed to
perform a preshift exam and report it in the examination book.
According to Baugh, Henderson later reported the results into the
book at 8:45 that morning. Henderson disagreed however that
there was any violation, maintaining that it was not a violation
so long as the examination was reported by the beginning of the
shift at 8:00 a.m. Accordingly he felt that the day shift miners
could report into the mine before 8:00 a.m. and before the
completion of the examination without violating the cited
standardo
Baugh deemed this violation to be "significant and
substantial" and a serious hazard for several reasons. He first
noted that the Birchfield No. 1 Mine was located as close as 20
feet from a bleeder system in an adjacent mine having a high
concentration of methane. Moreover Birchfield was not drilling
the required test holes 20 feet in advance of mining to prevent
an unexpected inundation of black damp (oxygen deficient air) or
methane.
Baugh also observed that the Birchfield mine itself
liberated methane and that one of the fans ventilating the mine
was not then functioning thereby causing excessive dust to be
blown across the working miners. He opined that the excessive
dust presented a health threat in the form of respirable dust as
well as an explosive hazard. Under the circumstances Baugh
concluded that there was a serious hazard to both the health and

safety of the seven miners in the mine at the time of the
issuance of the citation.
Richard Henderson, Birchfield's midnight shift section
foreman on April 2, 1987, was in charge of the five member
production crew on that shift. He acknowledged that 3 or 4 day
shift employees went underground as early as 7:30 that morning
before he was able to make the preshift examination entries. He
could not recall whether he had talked to Inspector Baugh before
he had completed the report and could not recall whether Baugh
observed him make the entry. In addition Henderson could not
remember whether he had completed the preshift examination before
the day shift miners entered the mine. He does remember,
however, that when the day shift miners did enter the mine he had
not yet completed the reports for either the on-shift exam for.
the midnight shift or the preshif t exam for that day shift and
that he was the person designated to perform that preshift
exam. Henderson also believed that he completed his preshift
mine examination report between 7:30 and 8:00 a.m. on the morning
of the 2nd and more likely between 7:45 a.m. and 8:00 a.m. He
recalled that he found no methane at the faces after checking
with a methane detector at the last row of roof bolts. He claims
he was not aware of the citation for inadequate preshift
examination until later but he could not recall when.
-~
Avery Bailey, Birchfield's General Mine Forman, also
disagreed with Inspector Baugh. Bailey felt that it wao proper
to allow the day shift miners to proceed underground before
reporting the preshift exam results because the mine had already
been preshif ted before the midnight shift and because all of the
day shift miners were certified fire bosses. Bailey acknowledged
however that only Henderson was the fire boss designated to
perform the examination to be reported out. Bailey thought that
the preshift book was completed prior to the 8:00 a.m. shift
change because he recalled Henderson come out of mine and fill
out the book.
In summary, it is undisputed that 3 to 4 day shift miners
went underground into the active workings of the Birchfield No. 1
Mine around 7~30 on the morning of April 2, 1987, and that the
day shift did not commence until 8:00 a.mo
The credible evidence
also shows that at the time these miners entered the mine, the
designated preshift examiner had not reported the results of any
preshi£t examination to the surface of the mine.
I am also
persu~ded by the affirmative testimony of Inspector Baugh that
the preshif t examination had not been completed at the time these
miners entered the mine.
Preshift examiner Richard Henderson
could not even remember whether he had completed the exam.
It is
also not disputed that when the day shift miners entered the

2212

mine, no dates, times or initials "had been placed in conspicuous
locations" to evidence the completion of a preshift examination.
Birchfield argues that the cited standard is ambiguous and
maintains that so long as the preshift examination is completed
and properly reported by the commencement of the shift at
8:00 a.rn. it is in full compliance and it is therefore immaterial
that miners in the shift had entered the mine before the
completion of such examination.
The regulation requires however that the preshift
examination be completed "within three hours immediately
preceding the beginning of any shift and before any miner in such
shift enters the active workings of a coal mine" (emphasis added).
The regulation also requires that the mine examiner report the
results of his examination "to a person designated by the
operator to receive such reports at a designated station on the
surface of the mine, before other persons enter the underground
areas of such mines to work in such shift" (emphasis added).
There is no ambiguity in this language and the plain meaning must
prevail. The preshift exam.must therefore be completed and
reported to the sur£ace before any miner in the oncoming shift
enters the active.workings or the underground areas to work in
that shift, respectively.
Under the circumstances I find that the violation is proven
as charged. Since the requirement of the standard is set forth
in plain and unambiguous language I also find that the operator's
agents should have known of the violation. Accordingly I find
that the violation was the result of inexcusable aggravated
conduct, constituting more than ordinary negligence, and
therefore the result of the "unwarrantable failure" of the
operator to comply with the law. Emery Mining Corporation v.
Secretaryv 9 FMSHRC
v Docket No. WEST 86-35-R
<December llv 1987)' Zeigler Coal Corp.v 7v IBMA 280 (1977)~ U.S.
Steel Corp.v 6 FMSHRC 1423 (1984). For the same reasons I find
that the violation was the result of significant operator
negligence.
Within the framework of the evidence herein

I

also find that

the violation was "significant and substantial" and a serious

hazard. Secretary v. Mathies Coal Company 6 FMSHRC 1 (1984). In
reaching this conclusion I have not disregarded the evidence that
no methane was found during the inspection at issue and that
mining was not then progressing toward the adjacent bleeder.
However the operative time frame for determining the reasonable
likelihood of an injury includes the expected continuance of
normal mining operations. Secretary v. Halfway Incorporated, 8
FMSHRC 8 (19 86).

2213

In assessing a civil penalty in this case I have also
considered that the operator is relatively small in size,
promptly abated the violation, and had no history of violations.
Accordingly I find that a civil penalty of $400 is appropriate.
ORDER
Citation No. 2909257 is affirmed as a citation under section
104(d)(l) of the Act. Birchfield Mining Incorporated is directed
to pay civil penalties of $400 within 30 d ys of the date of this
decision.

'\

I
I

I

l
'\'.,./

.

Gary elick
Admin:'strative
( 703 >j 756-6261
Distribution:

\

Mary K. Spencer, Esq., Office of the Solicitor, U. s. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified
Mail)
William D. Stover, Esq., 41 Eagles Road, Beckley, WV
(Certified Mail)
npt

25801

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

DEC 301987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
RICHARD W. HAVILAND,
Complainant

DISCRIMINATION PROCEEDING
Docket No. SE 87-44-DM
Docket No. SE 87-89-DM
Swift Creek Mine

v.
OCCIDENTAL CHEMICAL COMPANY,
Respondent
and
INTERNATIONAL CHEMICAL
WORKERS UNION, LOCAL NO.
784,
Intervenor
ORDER OF DISMISSAL
Before:

Judge Broderick

On December 2, 1987, the Secretary filed a motion to
withdraw its complaint in this case on the grounds that
Complainant and Respondent reached a settlement in this
matter according to which Richard Haviland is to receive
a lump sum payment in compensation for the period June 30,
1986 to March 9; 1987 1 to be restored to all fringe benefits
of his employment, to be reinstated to the position of
Combination Analyst Repairman, to be reimbursed for covered
medical claims accruing during the period June 30, 1986 to
March 9, 1987, and to have his personnel records expunged of
the complained-of discharge. On December 9, 1987v the
Intervenor replied to the motion and stated that under the
collective bargaining contract, Mr. Haviland would not be
entitled to be reinstated in the position of Combination
Analyst Repairman.
On December 14, 19871 the matter was discussed in a
conference call with counsel for the Secretary and Respondent
and Representatives of the Intervenor.
The position of the
Intervenor Union is that Haviland can claim the right to

2215

be reinstated to a position other than that of Analyst
Repairman, approximately the same rate of pay. At my
request Mr. Haviland submitted a statement, filed December 23,
1987, in which he indicated that he was aware of the position
of the Union, but nevertheless desired to withdraw his
complaint in accordance with the settlement agreement.
I have considered the motion and related filings
and conclude that the settlement is in the best interest
of the Complainant, and in furtherance of the purposes of
the Act.
Therefore, the motion to withdraw is GRANTED,
and these proceedings are DISMISSED.

!

Af:J':,-vckt-1

ttUtt.£-5 ·
t;/L_
James A. Broderick
Administrative Law Judge

Distribution:
Glenn Embree, Esq., u.s. Department of Labor, Office of the
Solicitor, 1371 Peachtree St., N.E., Rm. 339, Atlanta, GA
30367 (Certified Mail)
Thomas Means, Esq., Crowell & Moring, 1001 Pennsylvania Ave.,
N.W. 1 Washington, DC 20004 (Certified Mail)
Ben Cox, President, Local 784, International Chemical Workers
Union, Rt. 1, Box 114-A, White Springs, FL 32096 (Certified
Mail)
slk

2216

* U.S. GOVERNMENT PRL~TING OFFICE 1988;

201-735/72931