AUGUST 1993

COMMISSION DECISIONS AND ORDERS
08-03-93
08-10-93
08-18-93
08-27-93
08-31-93

Montana Resources, Inc.
Navajo Concrete Inc.
VP-5 Mining Company
u.s. Steel Mining Company, Inc.
Consolidation Coal Company

WEST 92-343-M
WEST 92-771-M
VA
92-112-R
WEVA 91-1607
WEVA 91-1964

Pg.
Pg.
Pg.
Pg.
Pg.

WEST 92-204

Pg. 1559

KENT 93-650-D

Pg. 1574

PENN 93-179-D
WEVA 92-992

Pg. 1575
Pg. 1577

KENT 93-620-D
WEVA 92-1021
CENT 92-110-M
PENN 92-854
WEST 93-198-D
WEVA 93-307-R
WEST 92-802-M
WEST 93-105-M
LAKE 92-345-M
PENN 92-587
YORK 92-117-M
LAKE 93-23
PENN 92-814-A
WEVA 92-953
KENT 91-179-R

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

WEVA 93-375-D
CENT 92-333-M
KENT 92-919

Pg. 1707
Pg. 1713
Pg. 1716

KENT 93-796-D
LAKE 92-265-RM
PENN 93-181-D
SE
92-246-M
WEST 93-361-DM
WEST 92-370-R

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

VA
92-83
KENT 91-1370-R
KENT 92-878

Pg. 1764
Pg. 1788
Pg. 1795

KENT 92-713

Pg. 1799

YORK 92-106-R

Pg. 1800

1527
1529
1531
1541
1555

ADMINISTRATIVE LAW JUDGE DECISIONS
06-24-93
08-02-93
08-03-93
08-03-93
08-04-93
08-05-93
08-09-93
08-09-93
08-09-93
08-09-93
08-10-93
08-10-93
08-10-93
08-10-93
08-11-93
08-12-93
08-13-93
08-13-93
08-16-93
08-16-93
08-18-93
08-18-93
08-18-93
08-18-93
08-18-93
08-19-93
08-23-93
08-24-93
08-27-93
08-27-93
08-31-93

C.W. Mining Company (previously unpubl.)
sec. Labor on behalf of Brian Moore, etc.
v. Toler Creek Energy,Inc.
Sec. Labor on behalf of Joseph Smith, etc.
v. Helen Mining Company
Consolidation Coal Company
Sec. Labor on behalf of ~ci3,rl Shackleford
v. Hot Rod Coal Co., Inc., etc.
M A G Incorporated
Dolese Brothers Company
Consolidation Coal Company
Lloyd A. Partin v. Amax Coal Company
Diablo Coal COmpany
Asamera Mineral (US) Inc.
Asamera Mineral (US) Inc.
Carl Schlegel, Inc.
Beth Energy Mines, Inc.
Buffalo crushed Stone, Inc.
Peabody coal Company
Consolidation Coal Company
Steele Branch Mining
Peabody Coal Company
Sec. Labor on behalf of Cletis Wamsley,
et al. v. Mutual Mining, Inc.
L.M. Karnes emp. by J.H. Shears' Sons
Wilgar Land Company, Inc.
Sec. Labor on behalf of Kirby Senter v.
Black Dragon Mining Company
u.s. Steel Group, Minnesota Ore
William Kroh v. UAE Coal Corporation
Brown Brothers Sand company
Donald R. Holder v. Nevada Gold Mining
cyprus Plateau Mining Corp.
Henry B. Salyers, et al. emp. by Middle
Creek Energy Incorporated
Peabody Coal Company
Cougar Coal Company, Inc.

1580
1583
1590
1599
1604
1605
1607
1609
1611
1621
1641
1652
1659
1667
1703

1718
1720
1730
1731
1737
1738

ADMINISTRATIVE LAW JUDGE ORDERS
08-02-93

Husky Coal Company, Inc.

Reprint of ALJ Decision
07-08-93

W.J. Bokus Industries, Inc.

AUGUST

1993

Review was granted in the following cases during the month of August:
Secretary of Labor, MSHA v. c.w. Mining Company, Docket No. WEST 92-204.
(Judge Cetti, June 24, 1993)
Secretary of Labor, MSHA v. Montana Resources, Inc., Docket Nos.
WEST 92-343-M, WEST 92-705-M.
(Judge Cetti, unpublished settlement decision
of June 24, 1993)
Secretary of Labor on behalf of Ronny Boswell v. National Cement company,
Docket No. SE 93-48-DM.
(Judge Melick, June 25, 1993)
Secretary of Labor, MSHA v. Navajo Concrete, Inc., Docket No. WEVA 92-746.
(Chief Judge Merlin, unpublished Default Decision of July 7, 1993)
Secretary of Labor, MSHA v. W.J. Bokus Industries, Inc., Docket Nos.
YORK 92-106-M, YORK 92-107-M.
(Judge Weisberger, July 8, 1993)

Review was not granted in the following case during the month of August:
Secretary of Labor, MSHA v. Broken Hill Mining Company, Docket No.
KENT 92-290.
(Judge Koutras, July 13, 1993)

i

COMMISSION DECISIONS AND ORDERS

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

August 3, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket Nos. WEST 92-343-M
WEST 92-705-M

MONTANA RESOURCES, INC.
DIRECTION FOR REVIEW
ORDER
The petition for discretionary·review filed by the Secretary of Labor is
granted. For the reasons set forth below, we vacate the June 24, 1993
Decision Approving Settlement and remand the case to the judge for appropriate
proceedings.
On May 12, 1993, Montana Resources, Inc., filed a motion styled,
"Respondent's Motion to Approve Settlement and Dismiss Proceedings." The
motion and the letter to the judge conveying the motion indicate that the
motion was not a joint motion. However, the last paragraph of the motion
states, "Wherefore, the parties move the Commission to approve the above
settlement agreement .... " Motion at 7.
On May 21, 1993, the Secretary responded by letter to the judge advising
that respondent's motion to approve settlement contained one paragraph that
1:-Jas not agreeable to the Secretary, "Respondent's language in paragraph 8 goes
beyond the statement to which the Secretary agreed .... " The Secretary
concluded by stating that he "files his objection to paragraph 8, but approves
of paragraphs 1-7 and 9." Letter at 1.
On June 24, 1993, the judge issued the subject decision approving the
settlement without any reference to the disputed paragraph.

~utative

On the foregoing record, it is clear that respondent's motion was
prematurely filed and should have been denied. The parties had not come to an
agreed disposition of this matter. In Peabody Coal Co., 8 FMSHRC 1265
(September 1986), the Commission determined that:
the record must reflect and the Commission must be
assured that a motion for settlement, in fact,
represents a genuine agreement between the parties, a
true meeting of the minds as to its provisions.
Id. at 1266.
1990).

See also Tarmon v. International Salt Co., 12 FMSHRC 1 (January

1527

Accordingly, the decision approving settlement is vacated and the case
is remanded to the judge for appropriate proceedings.

LENE HOLEN,

Cha~rman

~
L

C.lATR

NELSON. Commissioner

Distribution
Jerald S. Feingold,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Susan J. Eckert, Esq.
Office of the Solicitor
U.S. Department of Labor
1585 Federal Bldg.
1961 Stout St.
Denver, CO 80294
Mark N. Savit, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Suite 400
Washington, D.C. 20037
Administrative Law Judge August Cetti
Federal Mine Safety & Health Review Commission
1244 Speer Boulevard, Suite 280
Denver, CO 80204

1528

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

20006

August 10, 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 92-771-M

v.

NAVAJO CONCRETE INC.
BEFORE:

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

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On July 7,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
Navajo Concrete Inc. ("Navajo") for failing to answer the proposal for
assessment of civil penalties filed by the Secretary of Labor or the judge's
February 19, 1993, Order to Show Cause. The judge assessed civil penalties in
the sum of $1,371. 1 For the reasons that follow, we vacate the default order
and remand this case for further proceedings.
On July 21, 1993, the Commission received a letter dated July 15, 1993,
from Albert Lewis, Navajo's president, in which Mr. Lewis states that Navajo
had sent a reply on October 21, 1992, to J. Ogden, an attorney in the
Department of Labor's Office of the Regional Solicitor in Los Angeles,
California. Under the Commission's procedural rules, the party against whom a
penalty is sought must file its answer with this Commission within 30 days of
service of the proposal for assessment of civil penalties. 29 C.F.R.
§§ 2700.5(b), .29.
The judge's jurisdiction over this case terminated when his decision was
issued on July 7, 1993. 29 C.F.R. § 2700.69(b). Under the Mine Act and the
Commission's procedural rules, relief from a judge's decision may be sought by
filing a Petition for Discretionary Review with the Commission within 30 days
of its issuance .. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem
1

The Secretary proposed that civil penalties in the sum of $1,571 be
assessed against Navajo. As noted in the judge's show cause order, on November
18, 1992, the Commission received a memorandum from the Office of Assessments for
the Department of Labor's Mine Safety and Health Administration ("MSHA")
indicating that $200 of the penalties had been paid.

1529

Navajo's July 15 letter to. be a timely filed Petition for Discretionary
Review, which we grant. See,~. Middle States Resources, Inc., 10 FMSHRC
1130 (September 1988), On the basis of the present record, we are unable to
evaluate the merits of Navajo's position. In the interest of justice, we
remand this matter to the judge, who shall determine whether default is
warranted. See Hickory Coal Co. 12 FMSHRC 1201, 1202 (June 1990).
For the reasons set forth above, we vacate the judge's default order and
remand this matter for further proceedings.

Arlene Holen, Chairman

~--v<::vn4/:=
. Richard V. Backley, Commissioner

0

<

~;l~

Yo.yCeA: Doyle, Commis~

L. Clair Nelson, Commissioner

Distribution

J. Mark Ogden, Esq.
Office of the Solicitor
U.S. Department of Labor
3247 Federal Bldg.
300 North Los Angeles St.
Los Angeles, CA 90012
Albert A. Lewis, President
Navajo Concrete Inc.
P .0. Box 117

Templeton, CA

93465

1530

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

August 18, 1993

VP-5 MINING COMPANY

v.

Docket Nos. VA 92-112-R
VA 92-113-R
VA 92-114-R
VA 92-115-R

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

BEFORE:

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

BY THE COMMISSION:
This contest proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"). The issues
are whether the presence of an accumulation of methane behind stoppings along
the bleeder entries of a gob 1 in a longwall section presented an imminent
danger and whether VP-5 Mining Company ("VP-5") was complying with its
ventilation plan in accordance with 30 C.F.R. § 75.316. 2 This case arose
when an inspector of the Department of Labor's Mine Safety and Health
1

"Gob," in the context of this case, refers to the "space left by the
extraction of a coal seam .... " Bureau of Mines, U.S. Department of the Interior,
Dictionary of Mining. Mineral. and Related Terms, at 497 (1968) (DMMRT). ..Bleeder
entries" are "panel entries driven on a perimeter of block of coal being mined
and maintained as exhaust airways to remove methane promptly from the working
faces to prevent buildup of high concentrations either at the face or in the main
intake airways." DMMRT at 112.
2

At all pertinent times, section 75.316 provided, in part:
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.... Such plan shall be reviewed by
the operator and the Secretary at least every 6 months.

Section 75.316 was identical to section 303(o) of the Mine Act.
The
Secretary's ventilation standards have been revised effective August 16, 1992;
ventilation plan provisions are now at sections 75.370 -.372.

1531

Administration ("MSHA") issued two imminent danger orders and two citations to
VP-5 after he determined that an area within the gob contained an explosive
accumulation of methane. Commission Administrative Law Judge Gary Melick
affirmed the orders and citations. 14 FMSHRC 1033 (June 1992)(ALJ) For the
reasons set forth below, we affirm the imminent danger orders but vacate the
citations.
I.

Factual and Procedural Background
The VP-5 mine liberates more than 20 million cubic feet of methane per
day. The gob, known as the East Gob, is an inaccessible area resulting from
the mining of seven longwall panels. The panels are each 4,800 feet long and,
taken together, are about 6,800 feet wide. The gob is ventilated primarily by
air that enters the gob along the longwall panel, flows through the gob, and
exits through connector entries ("connectors") into bleeder entries. Air also
exits through bore holes to the surface. This ventilation system is designed
to dilute and render harmless any methane ..liberated at the longwall face or
emitted in the gob.
As mining has progressed, development entries have been established
using a continuous mining machine in advance of each longwall panel. Each
development entry consists of four individual entries, and serves as the
headgate entry when the longwall equipment is moved into the panel and then as
the tailgate entry when the longwall is moved into the next panel. Connectors
link each entry to the bleeder entries. Stoppings were constructed across
many of the connectors and a few of the stoppings were equipped with
regulators. 3 The development entries are consecutively numbered and, at the
time the citations and orders were issued, the headgate was in the No. 9
development entry and the tailgate was in the No. 8 entry.
On March 25, 1992, MSHA Inspector Carl Duty inspected the mine pursuant
to section 103(i) of the Mine Act, 30 U.S.C. § 813(i). 4 He measured the
methane in the bleeder entries and determined that the methane level was less
than 3% at all locations. Inspector Duty then took methane readings in each
of the 32 connectors, about 2 feet from the stoppings, using a Rikon methane
monitor. In some stoppings the regulators were open. The methane readings he
obtained for development entries 1 through 6 ranged between 1.5% and 4.2%.
The highest reading he obtained in each set of development entries was 3.2%
for No. 1, 4.0% for No. 2, 4.1% for No. 3, 3.5% for No. 4, 3.5% for No. 5 and
L:•• 2% for No. 6.
Gov. Ex. 2. The inspector also took bottle samples of the
air. Laboratory analysis of the bottle sample taken at the No. 6 Development
3

A regulator is a door, of any size, located in a stopping.
can be opened or closed as needed. See DMMRT, at 910.
4

The regulator

Section 103(i) provides, in part, that mines liberating more than one
million cubic feet of methane per day shall be inspec.ted by an authorized
representative of the Secretary at least once "during each five working days at
irregular intervals."

1532

showed 4.13% methane, 20.01% oxygen and .107% ethane. Gov. Ex. 3. Duty
believed the measurements indicated that an explosive mixture of methane was
accumulating in the gob and backing up to the longwall face. He believed
that, because the methane in the gob could be ignited, an imminent danger
existed. Accordingly, he issued an order under section 107(a) of the Mine
Act, 30 U.S.C. § 817(a), withdrawing miners from the longwall section. 5
Inspector Duty also issued a citation under section 104(a) of the Mine
Act, 30 U.S.C. § 814(a), because he believed that the operator was not
controlling methane in the gob as required by the mine ventilation plan.
Later that day, Inspector Duty found the methane levels to be less than 3% at
the same locations and he terminated the order.
On March 26, Inspector Duty returned to the mine and took methane
readings at the same locations. The highest methane readings he obtained in
each set of development entries were 3.0% for No. 1, 4.5% for No. 2, 3.8% for
No. 3, 4.8% for No. 4, 4.6% for No. 5 and 5.2% for No. 6. Gov. Ex. 13. The
inspector issued another imminent danger order and a citation alleging a

5

Section 107(a) of the Mine Act provides, in pertinent part:
If, upon any inspection or investigation of a coal
or other mine which is subject to this [Act], an
authorized representative of the Secretary finds that an
imminent danger exists, such representative shall
determine the extent of the area of such mine throughout
which the danger exists, and issue an order requiring
the operator of such mine to cause all persons, except
those referred to in section [104(c)], to be withdrawn
from, and to be prohibited from entering, such area
until an authorized representative of the Secretary
determines that such imminent danger and the conditions
or practices which caused such imminent danger no longer
exist.
The order and citation both stated:
The bleeder system was not functioning properly in that
the methane content at the bleeder connectors from [the]
No. 2 development through No. 6 development ranged from
4. 0 percentum at the No. 2 development to 4. 2 percent at
the No. 6 development. This is a significant increase
in the amount of methane that is normally observed in
these connectors indicating that the methane content in
these areas are not being controlled.

Gov. Exs. 4 & 11.

1533

violation of section 75.316.6
VP-5 filed notices of contest of the citations and orders and a hearing
was held before Judge Melick on April 15, 1992. The judge credited the
testimony of MSHA's witnesses that explosive concentrations of methane and
ready ignition sources were present in the gob. 14 FMSHRC at 1040. On this
basis, the judge concluded that "within the framework of the undisputed
evidence, there was clearly an imminent danger .... " 14 FMSHRC at 1041.
With respect to the citations, the judge concluded that the operator
violated paragraph 10 of its ventilation plan because the methane content in
the gob was not being adequately controlled. 14 FMSHRC at 1037-38. He found
that the term "control" in paragraph 10 is ambiguous and may be subject to
different interpretations. He also determined that the record contained
insufficient evidence to draw any inferences as to MSHA's prior interpretation
of this term. The judge affirmed the citations on the basis of the operator's
own policy of shutting down the longwall whenever the methane level in the
connectors reaches 4%. The judge determined that VP-5 recognized, as
evidenced by its policy, that meth&ge in the gob is not being adequately
controlled when the methane level in the connectors reaches 4%. He concluded
that VP-5's practice "establishes the meaning [of the term control] intended
by the parties." 14 FMSHRC 1038.
The Commission granted VP-5's Petition for Discretionary Review of the
judge's decision.

6

The order stated:
The bleeder system was not functioning properly in that
4. 5 to 5. 2 per centum of methane was present in the
bleeder connectors from No. 2 development to No. 6
development.
Permanent type stopping[s] were being
erected in the bleeder connectors that prevent the air
from being coursed through the gob area as approved by
ventilation plan for this mine.

Gov. Ex. 15.

The citation stated:
The bleeder system was not functioning properly in that
4. 5 to 5. 2 percentum of methane was present in the
bleeder connectors from No. 2 development to No. 6
development.
The approved ventilation plan was not
being complied with in that permanent type stoppings
were being erected in the bleeder connectors at the top
of the No. 2 through No. 7 developments that prevents
the gob area from being ventilated as approved by the
MSHA District Manager.

Gov. Ex. 16.

1534

II.

Disposition of the Issues
A.

Imminent Danger Orders

Section 3(j) of the Mine Act defines an imminent danger as "the
existence of any condition or practice in a coal or other mine which could
reasonably be expected to cause death or serious physical harm before such
condition or practice can be abated." 30 U.S.C. § 802(j). Congress made
clear that an imminent danger is not to be defined "in terms of a percentage
of probability that an accident will happen." S. Rep. No. 181, 95th Gong.,
1st Sess. 38 (1977), reprinted in Senate Subcommittee on Labor of the
Committee on Human Resources, 95th Gong., 2nd Sess, Legislative Histo6Y of the
Federal Mine Safety and Health Act of 1977 at 626 (1978). Instead, the focus
is on the "potential of the risk to cause serious physical harm at any time."
Id. Congress intended to give inspectors "the necessary authority for the
taking of action to remove miners from risk." Id.
The Commission adopted this reasoning in Rochester & Pittsburgh Coal
Co., 11 FMSHRC 2159, 2163 (November 1989), where it noted that "the U.S.
Courts of Appeals have eschewed a narrow construction and have refused to
limit the concept of imminent danger to hazards that pose an immediate
danger." (citations omitted). The Commission noted further that the courts
have held that "an imminent danger exists when the condition or practice
observed could reasonably be expected to cause death or serious physical harm
to a miner if normal mining operations were permitted to proceed in the area
before the dangerous condition is eliminated." Id., quoting Eastern
Associated Coal Corp. v. Interior Bd. of Mine Op. App., 491 F.2d 277, 278 (4th
Cir. 1974). The Commission adopted the Seventh Circuit's holding that an
inspector's finding of an imminent danger must be supported "unless there is
evidence that he has abused his discretion or authority." 11 FMSHRC at 2164,
quoting Old Ben Coal Corp. v. Interior Bd. of Mine Op. App., 523 F.2d 25, 31
(1975).
VP-5 argues that the judge failed to recognize that the Secretary
offered no evidence as to the levels of methane and oxygen in the gob. VP-5
maintains that the Secretary and the judge improperly assumed that the
quantity of methane and oxygen in the connectors, in the amounts measured by
the inspector, indicated that there was an explosive mixture of methane in the
gob. It contends that the inspector's measurements were not probative of the
conditions in the gob. The Secretary contends that the judge correctly
determined that the gob contained an explosive mixture of methane.
The Commission is bound by the substantial evidence test when reviewing
an administrative law judge's factual determinations. 30 U.S.C. § 823(d)
(2)(A)(ii)(I). "Substantial evidence" means "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." See, ~.
Rochester & Pittsburgh, 11 FMSHRC at 2163, quoting Consolidation Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). The judge evaluated the evidence as to the
"three ingredients necessary for a methane ignition or explosion, i.e. fuel,
adequate oxygen and an ignition source." 14 FMSHRC at 1040. The methane and

1535

oxygen measurements in the connectors are not in dispute. The inspector
measured methane concentrations as high as 4.2% on March 25. Bottle samples
revealed that there was about 4.13% methane and .107% ethane. On March 26,
the inspector measured methane levels as high as 5.2% and bottle samples
confirmed the presence of 4.8% methane and .113% ethane. MSHA presented
evidence, not disputed by VP-5, that methane in the presence of ethane can
provide fuel for an ignition or explosion at levels below 5%. The bottle
samples show that the oxygen concentration was 20.01% on March 25 and 19.89%
on March 26. It is undisputed that this level of oxygen is sufficient to
support an ignition or explosion.
The inspector inferred that, because he obtained methane readings above
4.0% in the connectors, there were explosive concentrations of methane in the
fringe area of the gob. 7 VP-S's mine manager testified that these readings
did not indicate the level of methane and oxygen in the fringe areas of the
gob. The judge did not address how the methane/ethane/oxygen mixture in the
connectors proved that there was an explosive mixture in the gob, ~ut he
credited the inspector's testimony. The record contains sufficient evidence
to reasonably conclude, as did the j.udge, that the measurements of methane
taken by the inspector in the connectors indicates that a large quantity of
explosive methane was present in the fringe area of the gob. The inspector
issued the imminent danger orders in large part because he had normally
encountered about 3.0% to 3.5% methane in these connectors and he believed
that the higher readings indicated that methane was building up in the fringe
area of the gob.
VP-5 also challenges the judge's finding that ignition sources existed
that could have ignited methane. VP-5 contends that conditions at the
longwall face could not have ignited methane in the gob and notes that the
judge did not make specific findings on this point. VP-5 also argues that the
Secretary presented no evidence that a roof fall could have ignited methane in
the gob. The Secretary argues that there is record support for the judge's
findings.
The judge did not rely on the longwall face as an ignition source in
reaching his conclusion that an imminent danger existed. 14 FMSHRC at 104041. He found that the undisputed testimony of Clete Stephan, MSHA's expert on
mine ignitions and explosions, established that ignitions can be triggered by
frictional heat from rocks sliding against one another during a roof fall. 14
FMSHRC at 1040. The judge also found that roof falls could be expected to
occur in the fringe areas of the gob. Id. He concluded that "frictional
heat" was an undisputed ignition source and based his imminent danger finding
on the potential that a roof fall in the gob could propagate a mine fire or
explosion.

7

Several of the Secretary's witnesses stated that the fringe areas
adjacent to the connectors in a gob are subject to hazardous methane
concentrations. The interior of the gob apparently does not present an ignition
hazard because the methane concentrations are so high that there is insufficient
oxygen to propagate a fire or explosion.

1536

Stephan testified that "rock falls, if they generate enough heat, or
energy, can ignite methane." Tr. 191. He stated that the Pocahontas coal
formation is overlaid by massive sandstone beds that contain quartzite and
that very little energy would be required to ignite the methane/ethane/oxygen
mixture that was present in the gob. Tr. 194-95. He stated that the energy
released by a roof fall in an area containing quartz crystals is sufficient to
ignite methane.
Stephan testified that the conditions on the fringes of
the gob are such that roof falls are highly likely. Tr. 197.
An MSHA accident investigation report, issued as a result of a methane
ignition at the VP-5 Mine in 1991, indicates that the mine roof contains
"shale and laminated sandstone." Gov. Ex. 8; see also Gov. Ex. 9. The report
states that methane "was ignited by sparks generated from the cutting bits of
the continuous mining machine striking a sandstone roll." Id. Sandstone,
including laminated sandstone, contains quartz crystals. 8 Thus, substantial
evidence supports the judge's finding that frictional heat was a potential
ignition source in the gob. 9

VP-5 also argues that the Secr~~ary failed to establish that any
existing hazard presented a danger that was imminent. It argues that the
Secretary did not prove that the hazardous condition had a "reasonable
potential to cause death or serious injury within a short period of time."
VP-5 Br. 17, quoting Utah Power & Light Co., 13 FMSHRC 1617, 1622 (October
1991). The Secretary met his burden of demonstrating that the hazard present
in the gob was imminent. The Secretary's evidence makes clear that the
inspector reasonably concluded that the conditions in the fringe area of the
gob presented an impending hazard requiring that the longwall be shut down
immediately. Tr. 41-43, 196-97. We conclude that substantial evidence
supports the judge's imminent danger findings. 10
B.

Citations

VP-5 contends that it fully complied with the Mine Act and the
Secretaryis safety standards because, pursuant to its ventilation plan, it
provided sufficient ventilation in the gob to carry the methane away from the
working areas of the mine through the bleeder entries. It maintains that the
8

Sandstone is defined as a "cemented or otherwise compacted detrital
sediment composed predominantly of quartz grains .... " DMMRT at 961.
9

With regard to the order issued on March 26, the judge also concluded
that miners working in the bleeders could have ignited the methane. Because we
conclude that substantial evidence supports the judge's finding that frictional
heat from a roof fall could have ignited the methane, we do not reach this issue.
10

In Island Creek Coal Co., 15 FMSHRC 339 (March 1993), the Commission
affirmed an administrative law judge's decision that vacated imminent danger
orders issued as a result of methane measurements taken adjacent to a gob. The
evidence offered by the Secretary in support of the imminent danger orders
differed in Island Creek and the instant case. We have based our decision in
each case on the evidence presented to the judge.

1537

presence of methane in the bleeder entries at a level of less than 3%
demonstrates that its ventilation controls were working. VP-5 argues that
explosive mixtures of methane are to be expected in the gob because large
quantities of methane are liberated at the longwall face but that the presence
of methane in the gob does not, by itself, violate its ventilation plan.
The Secretary contends that levels of methane of 4% or more in the
connectors establishes that the mine's ventilation system was not adequately
controlling the level of methane in the gob. The Secretary argues that the
presence of explosive levels of methane in the gob demonstrated that VP-5 was
not complying with its ventilation plan.
The ventilation plan provision alleged to have been violated states:
"Bleeder entries, bleeder systems, or equivalent means will be used in all
active pillaring areas to ventilate the mined areas from which pillars have
been . . . extracted so as to control the methane content in such areas." Gov.
In reaching his conclusion that VP-5 violated
Ex. 12 (emphasis added). 11
its ventilation plan, the judge relied on VP-5's internal policies. The judge
found that "when methane levels re"!-c:.h 4 percent in the bleeder connectors
there has been recognition in VP-5 company policy and practice that the
methane in the gob is not adequately controlled." 14 FMSHRC at 1038. He
determined that this "policy and practice is entirely consistent with the
Secretary's" interpretation of the ventilation plan. Id. The judge found
that this evidence "establishes the meaning intended by the parties" and he
concluded that VP-5 violated its ventilation plan. Id.
The Commission has held that, in plan violation cases, "the Secretary
must establish that the provision allegedly violated is part of the approved
and adopted plan and that the cited condition or practice violates the
provision." Jim Walter Resources, 9 FMSHRC 903, 907 (May 1987). VP-S's
witnesses explained, without contradiction, that, under its policy, the
longwall is shut down when the level of methane entering the bleeders is
greater than 4% in order to stop the liberation of additional methane at the
longwall face. VP-5 established this policy because of a concern that, if
high levels of methane enter the bleeders, the methane might not be
sufficiently diluted in the bleeders to meet the requirement that air coursed
through the gob contain no more than 2% methane at the point where it enters
the main returns. 30 U.S.C. § 863(z)(2). 12 On March 25, Inspector Duty
measured about 1.8% methane at that location.
Section 303(z)(2) of the Mine Act requires gob areas to be ventilated by
bleeder entries. This provision states that "such ventilation shall be
11

This prov1.s1.on was taken directly from 30 C.F.R. 75.316-2(e), which was
promulgated by the Secretary of the Interior on November 20, 1970. 35 Fed Reg.
17890. Under the Secretary's new ventilation standards, bleeder systems are
covered by section 75.334.
12

At the time the citations were issued, this requirement was set forth
in the Secretary's safety standards at 30 C.F.R. § 75.329. Under the Secretary's
new standards, this requirement is set forth at 30 C.F.R. § 75.323(e).

1538

maintained so as continuously to dilute, render harmless, and carry away
methane and other explosive gases within such areas and to protect the active
workings of the mine from the hazaJ.ds of such methane and other explosive
gases." 30 U.S.C. § 863(z)(2). The provision of the ventilation plan taken
from section 75.316-2(e) is designed, in large measure, to implement this
language in the statute. The clear intent is to ensure that methane in the
gob is forced into the bleeders and away from active workings. The Secretary
admitted in his brief that the "purpose of bleeder entries is to dilute and
carry away methane liberated by the gob so that the methane level is less than
2.0% before it goes into the main return." S. Br. 2. Nothing in the Mine
Act, the Secretary's regulations or the ventilation plan indicates that
methane must be diluted to a specific level before the air ventilating the gob
enters the connectors.
VP-5 presented evidence that the gob was being ventilated in accordance
with the mine's ventilation plan. Richard Ray, VP-5's ventilation expert,
testified that the disputed plan provision requires that methane in the gob be
moved into the bleeders so that it can be diluted and carried away. VP-5
conducted a pressure quantity ventil,a.tion survey, which it believes
established that a satisfactory quantity of air was moving through the gob and
adjacent bleeders on March 25 and 26. Tr. 285-90. Inspector Duty could not
state what concentration of methane in the connectors would indicate that
methane in the gob is being controlled as required by the plan, saying only
that "[t]here's no set number" but 4% was too high. Tr. 45-47. The Secretary
does not dispute that explosive levels of methane are often present in a gob.
Tr. 203-04. The methane readings obtained by the inspector indicate low
levels of methane in the connectors closest to the longwall face, the Nos. 7
and 8 development entries (Gov. Exs. 2 and 13), indicating that the methane
was moving away from the face into the bleeders, as expected, and was not
backing up to the face as feared by the Inspector. 13
Paragraph 10 of the ventilation plan cannot be fairly read to include a
requirement that methane be diluted to a concentration of less than 4% before
it: leaves the gob.
The company's longwall shutdown policy does not introduce
such a requirement into the ventilation plan. We conclude that substantial
evidence is lacking for the judge's finding that VP-5's policy established
that methane was not being adequately controlled if a concentration of more
than 4% is detected in the connectors and that the Secretary failed to prove
that the company violated its ventilation plan.
If the Secretary believes that air flowing through a gob should contain
no more than 4% methane as it enters bleeder entries, he should consider
promulgating a safety standard containing such a requirement. If the
Secretary believes that this particular mine requires special provisions
13

The record indicates that Inspector Duty took his methane readings in
a different location than the operator does in implementing this policy. The
inspector measured the methane about 2 feet from the stoppings while the company
measures for methane at the mouth of the connectors, where the connectors
intersect with the bleeder entries, some 50 to 60 feet away. Tr. 33, 108-09,
274-76. The methane concentrations may be different at these locations.

1539

concerning methane in the gob, he should seek amendment of the mine's
ventilation plan to address that issue.

III.
Conclusion
For the foregoing reasons, we affirm the judge's imminent danger
findings, reverse his conclusion that VP-5 violated its ventilation plan and
vacate citation Nos. 3800173 and 3800175.

Arlene Holen, Chairman

/

- Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner

Distribution
Timothy M. Biddle Esq.
Thomas A. Stock, Esq.
Crmvell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Tina Gorman, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd
Arlington, VA 22203
Administrative Law Judge Gary Melick
Federal l1ine Safety & Health Revie'\v Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1540

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

August 27, 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION
Docket No. WEVA 91-1607

v.

U.S. STEEL MINING COMPANY, INC.

BEFORE:

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

BY:

Backley and Nelson, Commissioners

In this civil penalty proceeding ar1s1ng under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act" or
"Act"), the issue is whether U.S. Steel Mining Company, Inc. ("U.S. Steel")
violated 30 C.F.R. § 75.512-2, a mandatory safety standard applicable to
underground coal mines, requiring the examination and testing of electric
equipment on at least a weekly basis. 1 Following an evidentiary hearing,
Commission Administrative Law Judge Roy J. Maurer found that U.S. Steel

1

Section 75.512-2, entitled "Frequency of examinations, 11 provides:
The examinations and tests required by § 75.512 shall be
made at least weekly. Permissible equipment shall be
examined to see that it is in permissible condition.

Section 75.512, entitled "Electric equipment; examination, testing and
maintenance," which repeats section 305(g) of the Mine Act, 30 U.S.C. 865(g),
provides:
All electric equipment shall be frequently examined,
tested, and properly maintained by a qualified person to
assure safe operating conditions. When a potentially
dangerous condition is found on electric equipment, such
equipment shall be removed from service until such
condition is corrected. A record of such examinations
shall be kept and made available to an authorized
representative of the Secretary and to the miners in
such mine.

1541

violated the standard. 14 FMSHRC 330 (February 1992)(ALJ).
that follow, the judge's decision is affirmed. 2

For the reasons

I.

Factual and Procedural Background
U.S. Steel owns and operates the Gary No. 50 Mine located in West
Virginia. On March 27, 1991, Larry Cook, an inspector from the Department of
Labor's Mine Safety and Health Administration ("MSHA") conducted an inspection
of the mine. Cook inspected the records of U.S. Steel's examinations of
underground electric equipment, which are required to be maintained by U.S.
Steel. Cook determined from the records that high voltage disconnects, vacuum
circuit breakers, transformers, and rectifiers were being examined on a
monthly basis. Cook issued Citation No. 3741045, alleging that U.S. Steel
violated section 75.512-2, because the above items had not been examined
weekly.
Citation No. 3741045, as modj,fied, states:
All underground electric equipment was not being
examined weekly as required. Records of examinations
for high voltage disconnects, vacuum circuit breakers,
transformers and rectifiers show that weekly
examinations were made for a three month period from
October through December 1990. Beginning in January
1991 through this date (3/27/91) only monthly
examinations were made and recorded.
Cook also found that the violation resulted from U.S. Steel's moderate
negligence, because on July 18, 1990, another MSHA inspector issued a similar
citation to U.S. Steel for failure to examine electric equipment on a weekly
basis.
The SecretaDJ subsequently proposed a civil penalty for the alleged
violation and the matter proceeded to an evidentiary hearing before Judge
Maurer. The judge held that U.S. Steel violated section 75.512-2 by failing
to examine the items cited by Inspector Cook on a weekly basis. 14 FMSHRC at
333. Tne judge determined that the cited items were electric equipment within
·the meaning of the standard. Id. He also held that the Secretaryq s
interpretation of the term "electric equipment" to include the items cited by
the inspector is "reasonable and consistent with the objectives of the Mine
Act."
Accordingly, the judge affirmed the citation and assessed a civil

2

The Commission's vote in this case is evenly split.
Commissioners
Backley and Nelson would affirm the judge's decision.
Chairman Holen and
Commissioner Doyle would reverse.
For the reasons set forth in Pennsylvania
Electric Co., 12 FMSHRC 1562, 1563-65 (August 1990), aff'd, 969 F.2d 1501 (3d
Cir. 1992), we conclude that the effect of the split decision is to affirm the
judge's decision.

1542

penalty of $20.
The Commission subsequently granted U.S. Steel's
petition for discretionary review, which challenges the judge's decision.
II.

Disposition of the Issues
The issue in this case is whether high voltage disconnects, vacuum
circuit breakers, transformers, and rectifiers (the "cited items 11 ) are
"electric equipment" as that term is used in section 75.512, which requires
that "[a]ll electric equipment ... be frequently examined, tested, and
properly maintained." If the cited items are "electric equipment," then they
must be examined and tested at least weekly under section 75.512-2. Section
75.512 specifies what must be examined and tested ("all electric equipment")
while section 75.512-2 sets forth the frequency ("at least weekly 11 ) .
U.S. Steel contends that the judge erred in disregarding the testimony
of its expert witness, Randolph Slone, that the cited items are not "electric
equipment" but, rather, are components.of electrical circuits. Slone
testified that electric equipment, for purposes of section 75.512, means
"electrical equipment that does a physical task by converting electrical
energy to mechanical energy." Tr. 53. U.S. Steel argues that because the
cited items are components of electrical circuits that do not perform a
physical task, such as propelling machinery or pumping water, they are not
electric equipment and are not required to be examined weekly under the
standard. In support of its position, U.S. Steel points to proposed
electrical regulations issued by MSHA that would require weekly examinations
only of low-voltage "mobile and portable electric equipment and circuits" and
less frequent examinations of "stationary equipment and circuits." See 54
Fed. Reg. 50062, 50123 (December 4, 1989).
The term "electric equipment" is not defined in the Mine Act or in
MSHA's regulations. In reaching his conclusion that the cited items are
electric equipment, the judge relied, in part, upon the definition of
"equipment (electrical engineering)" offered by the Secretary that is set
forth in the IEEE Standard Dictiona~ of Electrical and Electronic Terms,
published by the Institute of Electrical and Electronics Engineers (2d ed.
1977)("IEEE Dictiona~"). 14 FMSHRC at 332. That definition states, in
pertinent part, that "equipment" is a general term that includes "materials,
fittings, devices, appliances, fixtures, apparatus ... used as a part of, or
in connection with, an electrical installation." IEEE Dictiona~ at 236. The
cited items are undoubtedly included within this definition. In addition,
Inspector Cook, who is an electrical engineer, testified that "electric
equipment" is a broad term that applies to "any piece of equipment or
installation associated with electrical energy underground." Tr. 17. He
further stated that the term is broadly interpreted by the Secretary "to
assure that there are no hazards associated with [an electrical]
installation." Tr. 19. He testified that the items he cited are pieces of
electric equipment notwithstanding the fact that they are also components of
an electrical circuit. Tr. 27-28.

1543

The judge reviewed the conflicting evidence presented by the parties and
determined that the definition of "electric equipment" offered by MSHA is
"reasonable and consistent with the objective of the Mine Act." 14 FMSHRC at
333. The judge adopted MSHA's broad definition in part because he concluded
that a regulation should be interpreted to "harmonize with ... rather than
conflict with the objective of the statute it implements." Id. quoting Emery
Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1414 (lOth Cir. 1984).
The Commission is bound by the terms of the Mine Act to apply the
substantial evidence test when reviewing an administrative law judge's
decision. 30 U.S.C. § 823(d)(2)(A)(ii)(I). See also Consolidation Coal Co.,
11 FMSHRC 966, 973 (June 1989). "Substantial evidence" means "such evidence
as a reasonable mind might accept as adequate to support a conclusion." See
~··Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989),
quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). We
conclude that the record contains substantial evidence to support the judge's
finding that the cited items are "electric equipment" as that term is used in
the standard. MSHA's interpretation of electric equipment is supported by the
definition in the IEEE Dictionary, a recogJ:lized electrical dictionary that has
been approved as a standard by the American National Standards Institute. The
judge credited the testimony of Inspector Cook over that offered by Mr. Slone.
Both witnesses are electrical engineers and, in general, the weight given to
the testimony of an expert is committed to the broad discretion of the judge.
Ludlow Corp. v. Textile Rubber Chemical Co., 636 F.2d 1057, 1060 (5th Cir.
1981). The testimony of Inspector Cook together with the definition in the
IEEE Dictionary constitutes "such relevant evidence as a reasonable mind might
accept" to support a conclusion that the cited items are electric equipment.
We also agree with the judge that interpreting the standard to include
the four cited items is "reasonable and consistent with the objectives of the
Mine Act." 14 FMSHRC at 333. Frequent examination and testing of electric
equipment is required by section 305(g) of the Mine Act, 30 U.S.C. § 865(g).
Sections 75.512 and 75.512-2 implement this statutory requirement "to ensure
that operators observe and detect any potential electrical hazards and
immediately correct any hazardous conditions on electric equipment." Sec. Br.
6. If the cited items are not electric equipment under section 75.512, then
they would not be subject to any examination and testing requirement, because
no other safety standard would require U.S. Steel to periodically examine and
test the cited items for safety defects. 3 We give weight to the Secretary's
interpretation of the section 75.512 in this case because it is reasonable,
consistent with the purposes of the Mine Act and is supported by substantial
evidence. 4
3

The cited vacuum circuit breakers, however, apparently would be subject
to monthly examination and testing under either section 75.800-3, for highvoltage breakers or section 75.900-3, for low-voltage breakers.
4

The legislative history of the Mine Act provides that "the Secretary's
interpretations of the law and regulations shall be given weight by both the
Commission and the courts." S. Rep. No. 181, 95th Cong., 1st Sess. 49 (1977),
(continued ... )

1544

U.S. Steel's argument that the cited items. would be subject to less
frequent examination and testing under new electrical standards proposed by
the Secretary does not support its position in this proceeding. First, the
proposed rulemaking was withdrawn by the Secretary on March 1, 1991, before
Inspector Cook issued the citation at issue in this proceeding. See 56 Fed.
Reg. 17561 (April 22, 1991). Second, the proposed rulemaking establishes that
MSHA was considering changing the existing requirement for weekly safety
examinations of all electric equipment to a less frequent examination
requirement for certain types of electric equipment. Consequently, the
Secretary's actions actually support his position that he has consistently
viewed the scope of the safety standard to be inclusive and that the cited
items are electric equipment subject to weekly examination.
U.S. Steel's second argument is that the judge "disregarded the
undisputed testimony" that the citation issued by Inspector Cook was
inconsistent with MSHA's interpretation of the safety standard, as evidenced
by MSHA's prior enforcement actions and its interpretive manuals. Pet. for
Disc. Rev. at 5-6. 5 U.S. Steel argues that the evidence establishes that it
has examined the cited items on a monthly basis since at least 1970, and kept
records of these electrical examinations as required by MSHA. U.S. Steel
submits that MSHA has never cited U.S. Steel for failing to conduct weekly
examinations despite the fact that MSHA's inspectors have regularly inspected
these electrical examination records. U.S. Steel further alleges that MSHA
has never interpreted this safety standard to require weekly examinations of
the cited items and that MSHA has not changed the safety standard nor its
interpretation of the standard. U.S. Steel characterizes the weekly
examination requirement for the cited items as "a decision by a single
inspector" rather than a valid interpretation of the standard or a change in
MSHA policy. Id. In support of this argument, U.S. Steel asserts that MSHA's
official interpretation of the standard in its Coal Mine Inspection Manual:
Underground Electrical Inspections, Vol. IV, at 29 (June 1, 1983)("Manual") is
inconsistent with Inspector Cook's citation. As a consequence, U.S. Steel
maintains that the Commission should not accept Inspector Cook's
interpretation of the safety standard because it is inconsistent with MSHA's
and its prior enforcement of the safety standard at this mine and at
other mines. In sum, U.S. Steel appears to be arguing, by implication, that
because it relied to its detriment on MSHA's past enforcement actions and
MSHA's Manual, the Secretary should be estopped from citing it for the alleged
violation.
The record reveals that U.S. Steel had actual notice of the Secretary's
interpretation of sections 75.512 and 75.512-2 at the time Inspector Cook
4

( ••• continued)
reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th
Gong., 2d Sess., Legislative HistohY of the Federal Mine Safety and Health Act
of 1977, at 637 (1978). See also Secretary of Labor v. Cannelton Industries.
Inc., 867 F.2d 1432, 1435 (D.C. Cir. 1989).
5

U.S. Steel's Petition for Discretionary Review also constitutes its brief
in this proceeding.

1545

issued the subject citation. On July 18, 1990, more than eight months before
Inspector Cook issued his citation, MSHA Inspector Randall Wooten, an
authorized representative of the Secretary, issued a citation to U.S. Steel's
Gary No. 50 Mine alleging a violation of section 75.512-2 for its failure to
conduct weekly examinations of vacuum breakers, transformers and rectifiers.
U.S. Steel did not contest the citation, paid the penalty proposed by MSHA,
and began examining the cited equipment on a weekly basis. U.S. Steel's
general maintenance foreman at the mine, Tom Bailey, testified in the present
proceeding that U.S. Steel stopped complying with the July 1990 citation
because it believed that the "violation was in error." Tr. 41. He testified
that "we [were] fully aware that when we went back from the weekly to the
monthly [examinations], that we probably would get another citation." Id.
Inspector Cook testified that U.S. Steel conducted weekly examinations of the
cited items following Inspector Wooten's citation, but that after December 28,
1990, it began examining them on a monthly basis again. Thus, U.S. Steel did
not violate the safety standard in this case because it was unaware that MSHA
required weekly inspections of the cited items under the safety standard, but
rather because it intended to challenge MSHA's interpretation of the standard.
The Commission has held that,a.safety standard cannot be "so incomplete,
vague, indefinite or uncertain that [persons] of common intelligence must
necessarily guess at its meaning and differ as to its application." Alabama
By-Products Corp., 4 FMSHRC 2128, 2129 (December 1982)(citation omitted). In
this case, however, U.S. Steel knew, as a result of Inspector Wooten's
citation, that MSHA required it to examine and test the cited items weekly in
order to conform with the standard. Although an operator is free to challenge
MSHA's interpretation of a safety standard in a proceeding brought before the
Commission, it cannot legitimately contend that it did not have notice of the
conduct required if it has been cited previously by an authorized
representative of the Secretary for a similar violation of the same standard.
In addition, the Commission has determined that adequate notice of the
requirements of a broadly worded standard is provided if a reasonably prudent
person familiar with the mining industry and the protective purposes of the
standard would have recognized the specific requirement of the standard.
Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 1990). As stated above, if
the cited items are not subject to weekly safety examinations under section
75.512, they are not subject to any examination requirement under the
Secretary's safety standards. U.S. Steel recognizes that it is important to
regularly examine and test the cited items because it has been doing so on at
least a monthly basis since at least 1970. With the exception of circuit
breakers, however, monthly examinations are neither authorized nor required
under the Secretary's safety standards. As a consequence, we conclude that a
reasonably prudent person would have recognized that the cited items are
covered by the Secretary's only applicable examination and testing standard,
section 75.512, and that weekly examinations are therefore required pursuant
to section 75.512-2.
The Commission has long held that evidence of prior inconsistent
enforcement of a safety standard does not constitute a viable defense to a
violation and that equitable estoppel does not generally apply against the
Secretary. King Knob Coal Co., 3 FMSHRC 1417, 1421-22 (June 1981); Bulk

1546

Transportation Services, Inc., 13 FMSHRC 1354, 1361 n. 3 (September 1991). An
inconsistent enforcement pattern does not estop MSHA from proceeding under the
interpretation of the standard that it concludes is correct. U.S. Steel
Mining Co .. Inc., 10 FMSHRC 1138, 1142 (September 1988). Thus, the fact that
U.S. Steel was not cited prior to July 1990 for failing to conduct weekly
examinations of the items cited by Inspector Cook is not a viable defense to
liability.
Warren Steen Construction. Inc,, 14 FMSHRC 1125, 1131 (July
1992). Finally, equitable estoppel would not be applicable under the facts of
this case because, as stated above, U.S. Steel became aware that MSHA
considered the cited items to be electric equipment at the time it received
the first citation in July 1990. See
744 F.2d at 1417.
We conclude that the language in the Manual does not support the
position of U.S. Steel. The
provides, in pertinent part, that section
75.512 "requires that each individual piece of electric equipment, including
locomotives, personnel carriers, electric track switches and derails,
compressors, car hauls, conveyor units, pumps, rock-dusting machines, batterypowered equipment and permissible equipment, be examined and tested." Manual
at 29. We agree with the Secretary that the examples of electric equipment
provided in the Manual "are not intended tobe an all-inclusive list of the
types of electrical equipment covered by the mandatory standard." Sec. Br. 67. We believe that the general words in the safety standard can be fairly
read to include the cited items, in spite of the specific examples used in the
Manual. Compare Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (November
1989). In addition, the Commission has declined to give legal effect to MSHA
interpretive manuals that are inconsistent with the plain language of a safety
standard. King Knob, 3 FMSHRC at 1420; See also Brock v. Cathedral Bluffs
Shale Oil Co., 796 F.2d 533, 537-38 (D.C. Cir. 1986). In any event, the
Commission has held that an MSHA interpretation of a safety standard that
interferes with an operator's ability to ascertain the true standard of care
"will not serve to negate liability for violative conduct" but is "properly
considered in mitigation of penalty." U.S. Steel Mining Co., Inc., 6 FMSHRC
2305, 2310 (October 1984); Mettiki Coal Corp., 13 FMSHRC 760, 771 (May 1991).
In this case, the judge assessed a civil penalty of $20, a minimal penalty.
Finally, the record in this case does not contain sufficient proof to
establish U.S. Steel's contention that MSHA has cited only the Gary No. 50
Mine for failure to examine and test the cited items on a weekly basis. U.S.
Steel's witnesses Bailey and Slone testified that they know of no other
instances in which an operator has been cited for failing to weekly examine
and test electric equipment similar to the cited items. Slone testified that
he called an unspecified number of mine operators about their experience under
section 75.512 and was told that such operators had not been cited for failing
to examine and test similar electric equipment on a weekly basis. This
evidence does not establish U.S. Steel's allegation that the subject citation
was an ad hoc "decision by a single inspector" to interpret the standard to
require weekly examinations of the cited items at this mine only. 6
6

U.S. Steel also argues that the judge improperly disregarded two
decisions that support its position in this case: Leckie Smokeless Coal Co., 5
(continued ... )

1547

III.
Conclusion
For the foregoing reasons, we would affirm the judge's decision.

/

Richard V. Backley,

Co~~

L. Clair Nelson, Commissioner

6 ( •.• continued)

IBMA 65 (1975); and Mettiki Coal Co., 11 FMSHRC 2435 (December 1989) (ALJ).
cases do not address the issues raised in this case.

1548

These

Chairman Holen and Commissioner Doyle, dissenting:

We respectfully dissent because, in our view, the reasonably prudent person
familiar with the mining industry and the protective purposes of the Mine Act
could not be expected to know that the cited items, as components of an
electrical circuit, are subject to the requirements of weekly inspection of
electric equipment set forth in section 75.512-2. We disagree that the failure
of U.S. Steel Mining Company, Inc. ("U.S. Steel") to challenge an earlier
citation estops it forever from challenging whether section 75.512-2 applies to
the cited equipment. We do not share our colleagues' view that this case hinges
on whether or not "the record contains substantial evidence to support the
judge's finding that the cited items are 'electric equipment' as that term is
used in the standard." Slip op. at 4.
A.

Background

U.S. Steel was cited by the Secretary of Labor because it was exam1.n1.ng and
testing certain electrical apparatus on a monthly, rather than weekly, basis.
The particular items were high voltage disconnects, vacuum circuit breakers,
transformers and rectifiers.
The Secretary has taken the position that those
items are electrical equipment and, thus, governed by the weekly examination and
testing requirements of section 75.512-2 as well as, in the case of the circuit
breakers, by the requirements set forth in section 75.800-3. 1
U.S. Steel
concedes that weekly examinations were not being done but asserts that, because
the cited items were components of electrical circuits, they were subject only
to monthly examination and testing.
The term "electric equipment" is not defined in the Mine Act or in the
regulations. At hearing, the Secretary proffered a definition, not of "electric
equipment" but of "equipment (electrical engineering)," set forth in the
dictionary published by the Institute of Electrical and Electronic Engineers
("IEEE Dictionary").
Citing Bowles v. Seminole Rock Co., 325 U.S. 410, 414
(1945), for the proposition that the Secretary's interpretation of his own
regulation is "of controlling weight unless it is plainly erroneous or
inconsistent with the regulation," the judge found the Secretary's interpretation
to be reasonable and consistent with the Mine Act. 14 FMSHRC at 333.
He also
found the requirements of section 75.800-3 to be in addition to the testing and
examination requirements of section 75.512-2 and sustained the violation.

1

Section 75.800-3 reads, in relevant part:
(a) Circuit breakers and their auxiliary devices
protecting underground high-voltage circuits shall be
tested and examined at least once each month by a person
qualified as provided in§ 75.153;

1549

Our colleagues affirm the judge's decision on the basis that the definition
of "equipment" set forth in the IEEE Dictionary and the inspector's testimony
constituted substantial evidence to support the judge's determination that the
cited items were electric equipment. Slip op. at 4. They also find that U.S.
Steel had notice of this requirement (a finding not made by the judge) because
of an earlier citation by this same inspector for a similar violation. Slip op.
at 5 6. They also assert that, with the exception of the circuit breakers, the
cited equipment is suhject to no other inspection requirements and, thus, the
reasonably prudent person would have recognized that they are subject to weekly
examination pursuant to section 75.512-2. Slip op. at 4-6.
B.

Reasonably Prudent Person Test

Although the judge did not state that he found the regulation to be
ambiguous, his deference to the Secretary's interpretation of the regulation
implies that the he did not find it clear on its face. Ford Motor Credit Co. v.
Milhollin, 444 U.S. 555, 566 (1980); Bowles v. Seminole Rock Co., 325 U.S. at
414.
The Secretary effectively conceded that the regulation is ambiguous by
arguing that deference is owed to his interpretation. Sec. Br. at 4. Apparently,
our colleagues also find the reguLation to be ambiguous. They have based their
decision on the reasonableness of the Secretary's interpretation of the standard
and on his interpretation of the term "electrical equipment." 2 Slip op. at 4.
While deference may be owed to the Secretary's reasonable interpretation
of his regulations, "the due process clause prevents that deference from
validating the application of a regulation that fails to give fair warning of the
conduct it prohibits or requires."
Gates & Fox Co .. Inc. v. OSHRC, 790 F.2d
154, 156 (D.C. Cir. 1986). Accord Phelps Dodge Corp. v. FMSHRC, 681 F.2d. 1189,
1193 (9th Cir. 1982). Those governed by regulations have fair warning only when
they can reasonably discern a regulation's meaning. Western Fuels-Utah, 900 F.2d
318, 327 (D.C. Cir. 1990) (Edwards, J., dissenting). A regulation "cannot be
construed to mean what an agency intended but did not adequately express."
Phelps Dodge Corp., 681 F. 2d at 1193, guoting Diamond Roofing Co .. Inc. v. OSHRC,
528 F.2d 645, 649 (5th Cir. 1976). "[I]n order to afford adequate notice and
pass constitutional muster, a mandatory safety standard cannot be 'so
uncertain that [persons] of common intelligence must necessarily guess at its
meaning and differ as to its application.'" Ideal Cement Company, 12 FMSHRC
2409, 2416 (November 1990), guoting Alabama By-Products Corp., 4 FMSHRC 2128,
2129 (December 1982).
In determining whether a regulation gives notice of what is required, the
Commission has applied an objective standard, i.e., the reasonably prudent person
test. The Commission has summarized this test as "whether a reasonably prudent
person familiar >vith the mining industry and the protective purposes of the
standard would have recognized the specific prohibition or requirement of the
standard." Ideal Cement, 12 FMSHRC at 2416.
2

Nevertheless, citing King Knob, 3 FMSHRC 1417, 1420 (June 1981), our
colleagues note that the Commission has "declined to give legal effect to MSHA
interpretive manuals that are inconsistent with the plain language of a safety
standard." Slip op. at 7.

1550

C.

Regulatory Language and Manual Add to the Confusion

In order to determine whether the regulations would have put the reasonably
prudent person familiar with the mining industry on notice that weekly rather
than monthly inspections are required, one must read not only Subpart FElectrical Equipment-General (section 75.500 et seq.) but also Subpart IUnderground High-Voltage Distribution (section 75.800 et seq.), Subpart JUnderground Low- and Medium-Voltage Alternating Current Circuits (section 75.900
et seq.) and MSHA' s Coal Mine Inspection Manual: Underground Electrical
Inspections, Vol. IV, (June l, 1983) (
). After so doing, we can only
conclude that the reasonably prudent operator familiar with the mining industry
could not be expected to recognize that high voltage disconnects, circuit
breakers, transformers and rectifiers, all undisputedly components of an electric
power circuit (Sec. Br. at 5-6), must be inspected weekly. 3
1.

Regulatory Language

Sections 75.500-.507 set forth permissibility and filing requirements with
respect to "electric face equipment." Section 75.508 requires the operator to
show on a map the location and electrical rating of "all stationary electric
apparatus ... including permanent cables, switchgear, rectifying substations,
transformers ... and settings of all direct-current circuit breakers ... " Section
75.508-2 requires that any changes in the "electrical system" be recorded. If
an operator is by now confused as to whether the cited items are "electic
apparatus" or part of the "electrical system," section 75.509 indicates that the
items are not "electric equipment," because that section is entitled "Electric
power circuit
electric equipment; deenergization." It reads, in part: "All
power circuits
electric equipment shall be deenergized before work is done
on such circuits
equipment ... " (Emphases added.)
The language in subsequent sections continues to draw the distinction
between electric circuits and electric equipment.
Section 75.511 deals with
repair of "low-, medium-, or high-voltage distribution circuits and equipment."
Section 75.518 covers "electric equipment and circuits" and requires that circuit
breakers be installed so as to protect "all electric equipment and circuits."
Section 75.518-l again refers to "electric equipment and circuits." (Emphases
added.)
Sections 75.519 and 75.519-1 require that disconnecting devices be
installed in all main "power circuits," while a separate section, 75.520,
requires that switches or other controls be provided in all "electric equipment."

3

Our colleagues assert that, if the cited items are not subject to the
weekly examination and testing requirements of section 75.512-2, then there is
no requirement for examination and testing. Slip op. at 4. On this basis, they
conclude that the reasonably prudent person would have recognized that the items
were covered by section 75.512-2. Slip op. at 6. It is undisputed that a number
of operators, as well as U.S. Steel, were examining items of this type on a
monthly basis, pursuant to sections 75.800-3 and 75.900-3. 14 FMSHRC at 332, Tr.
at 56-57.

1551

In Subpart !-Underground High-Voltage Distribution, the Secretary has set
forth requirements for high-voltage circuits and circuit breakers.
The
requirements of section 75.800-3, "Testing, examination and maintenance of
circuit breakers; procedures" are more comprehensive than section 75.512.
Section 75.800-3 sets forth monthly testing and examination requirements for high
voltage circuit breakers and their auxilliary devices. Similarly, Subpart J sets
forth the requirements for low and medium voltage circuits and circuit breakers,
and also provides for monthly testing under section 75.900-3.
2.

Manual

The relevant discussion in the Manual does not erase the distinction
frequently drawn in the regulations between fixed electric circuits and electric
equipment. It provides that:
each individual piece of electric equipment, including locomotives,
personnel
carriers,
electric
track
switches
and
derails,
compressors,
car hauls,
conveyor units,
pumps,
rock-dusting
machines, battery-powered equipment and permissible equipment, be
examined and tested. · ··
Manual at 29.
These examples are dissimilar to the cited fixed equipment and
support the operator's view that the regulation is limited to "electrical
equipment that does a physical task by converting electrical energy to mechanical
energy."
Tr. 53.
The affirming commissioners recognize that the Manual
"interferes with an operator's ability to ascertain the true standard of care."
Slip op. at 7.
They "agree with the Secretary that the examples of electric
equipment provided in the Manual 'are not intended to be an all-inclusive list
of the types of electrical equipment covered by the mandatory standard,'" and
believe that the "standard can be fairly read to include the cited items, in
spite of the specific examples used in the Manual." Slip op. at 7.
(Emphasis
added.)
Further instructions in the Manual suggest that the regulation does not
address fixed electric equipment like the items cited. The Manual states that
examination records required by section 75.512 "shall list separately each
individual piece of electric equipment in the mine."
Manual at 29.
No
explanation is provided as to how the operator is to identify separately each
individual disconnect, circuit breaker, transformer, rectifier, or other
component of the mine's electric system.
The record contains no evidence of interpretive bulletins, program policy
letters, or other documents from the Secretary that would clarify for the
operator what constitutes electrical equipment, electric apparatus, electrical
installations, and electric power circuits.
Nor does it contain evidence of
documents that would put the operator on notice that a high voltage disconnect
is more akin to a locomotive or personnel carrier than to a high voltage circuit
breaker or that the items addressed under sections 75.512-2 and 75.800-3 are not
mutually exclusive.

1552

D.

Definition Proposed in Litigation Is Not Relevant

At hearing,
the Secretary proffered the definition of "equipment
(electrical engineering)" set forth in the IEEE Dictionary in support of his
position.
The definition provides that equipment is "a general term that
includes materials, fittings, devices, appliances, fixtures, apparatus, machines,
etcetera, used as a part of, or in connection with, an electrical installation."
IEEE Dictionary at 236. That definition, covering fixed installations, appears
to include the cited items, but it is at variance with the examples in the
Manual, which cover mobile equipment. The IEEE definition addresses the work of
electrical engineers, not the work of miners.
Its applicability to Section
75.512-2 is questionable because it fails to include many items listed among the
examples in the Manual and usually considered by miners to be electric equipment,
such as locomotives, rock dusting machines and personnel carriers.
Further,
there is no evidence in the record that the Secretary has formally or informally
adopted the IEEE definition or that the reasonably prudent person familiar with
the mining industry would also be familiar with the field of electrical
engineering or its dictionary.
E.

Previous Citation Does Not Estop Challenge

The judge did not address whether U.S. Steel had notice of a weekly
inspection requirement. Our colleagues assert that a previous citation provided
actual notice to U.S. Steel and, by implication, that its failure to challenge
the earlier citation estops it forever from challenging what it now believes to
be erroneous interpretation and enforcement by the Secretary.
If the regulation itself does not give notice to the reasonably prudent
operator that weekly as well as monthly inspections are required, presumably
there are many operators who are unaware of a weekly inspection requirement.
Varying interpretations of the regulation might arise, depending on the
enforcement actions of particular inspectors. Operators who chose to challenge
a first, rather than a subsequent, citation might well escape liability for that
citation.
Opera·tors who had been previously cited would be on notice of the
Secretary's interpretation, but other operators would not be on notice.
Arguably, notice to the entire mining industry could be provided by way of
individual citations, but safety is ill-served by such an approach.
It is the
language of a
and not piecemeal enforcement action that should make
clear to operators what is required of them.

1553

F.

Conclusion

The regulations at issue would, in our view, fail to put the reasonably
prudent person on notice that electric circuits and their components, circuit
breakers and their auxiliary devices, and electric apparatus (all terms used by
the Secretary) are all really "electric equipment" and are thus subject to weekly
examination. We would reverse the judge and vacate the citation.

Arlene Holen
Chairman

Commissioner

Distribution
M. Tennant, Esq.
U.S. Steel Mining Company
600 Grant Street, Room 1580
Pittsburgh, PA 15219
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Roy J. Maurer
Federal Mine
& Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1554

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

August 31, 1993

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

v.

Docket Nos. WEVA 91-1964
WEVA 91-1965

CONSOLIDATION COAL COMPANY

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners

DECISION
BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"),
involves a dispute between the Secretary of Labor and Consolidation Coal
Company ("Consol") regarding whether Consol violated 30 C.F.R. § 75.1707
because a hole existed in a stopping between an intake escapeway and a track
and trolley entry at its Blacksville No. 1 Mine. 1 Administrative Law Judge
Avram Weisberger determined that Consol had not violated the standard and,
accordingly, he vacated the citation. 14 FMSHRC 1450 (August 1992)(ALJ). The
Secretary filed a petition for discretionary review challenging the judge's
decision, which the Commission granted. For the reasons discussed below, we
reverse the judge's decision and remand to the judge to determine whether the
1

30 C.F.R. § 75.1707 is entitled "Escapeways; intake air; separation from
belt and trolley haulage entries," and provides in part:

[T]he escapeway required by this section to be
ventilated with intake air shall be separated from the
belt and trolley haulage entries of the mine for the
entire length of such entries to the beginning of each
working section, except that the Secretary or his
authorized representative may permit such separation to
be extended for a greater or lesser distance so long as
such extension does not pose a hazard to the miners.
Section 75.1707 repeats the language of section 317(f)(4) of the Mine Act, 30

u.s.c. § 877(f)(4).
1555

violation was significant and substantial ("S&S") and to assess a civil
penalty.
I.

Factual and Procedural Background
Consol operates the Blacksville No. 1 Mine, an underground coal mine in
West Virginia. On March 5, 1991, during an inspection of the longwall section
of the mine, Gene Jones, an inspector from the Department of Labor's Mine
Safety and Health Administration ("MSHA"), observed an 8-by-16 inch hole in
the No. 3 stopping. Tr. 18-19, 39-40. Constructed of 8-by-16 inch concrete
blocks, the stopping was placed in a crosscut between an intake escapeway and
an adjoining track entry. Tr. 22, 40, 42. The track entry was used to
transport miners and materials into and out of the mine. Tr. 22. Inspector
Jones placed an anemometer into the hole in the stopping and determined that
air was coursing from the track entry to the intake escapeway at a rate of 344
feet per minute. Tr. 51, 53. The inspector testified that, if a fire
occurred in the track entry, the smoke infiltrating the intake escapeway
through the hole could be sufficient to cause carbon monoxide poisoning and
visibility problems. Tr. 52-53. Accordingly, he issued Citation No. 3315803,
alleging an S&S violation of section 75.1707. 2 The citation was terminated
after the hole was sealed. G. Exh. 3. Consol subsequently challenged the
citation, and the matter was heard by Judge Weisberger.
The judge found that, although there was a hole in the stopping, Consol
had not violated the standard. 14 FMSHRC at 1456. The judge determined that
section 75.1707 and its underlying statutory language do not set forth the
"type or degree" of separation required, and that the legislative history of
the standard provides no further clarification. 14 FMSHRC at 1455-56.
Defining ~separation" in accordance with its dictionary meaning, "to set or
keep apart ... to block off: BAR, SEGREGATE ... ," the judge concluded that the
No. 3 stopping adequately separated the intake escapeway from the track entry
because it was placed across the crosscut between the two entries. 14 FMSHRC
at 1456, quoting, Webster's Third New International Dictionary. Unabridged
2069 (1986). Accordingly, the judge vacated Citation Nos. 3315803 and
3315865. 14 FMSHRC at 1459 (n.2 supra).
II.

Disposition of Issues
The Secretary argues that the judge erred in finding that Consol had not
violated section 75.1707 because the judge failed to construe the standard in
accordance with its purpose, and did not consider testimony regarding the
hazards associated with the hole. S. Br. at 3-4, 6-7. Consol responds that
2
The parties stipulated that the decision on this citation would also
apply to Citation No. 3315865, which also alleges a violation of section 75.1707.
14 FMSHRC at 1455. Citation No. 3315803 is included in Docket No. WEVA 91-1964,
and Citation No. 3315865 is included in Docket No. WEVA 91-1965.

1556

the judge correctly interpreted the standard because neither section 75.1707
nor its underlying statutory language require that an intake escapeway be
reasonably airtight in order to be separated from a track entry. C. Br.
at 4-5.
Section 75.1707 provides, in pertinent part, that "the escapeway
required by this section to be ventilated with intake air shall be separated
from the belt and trolley haulage entries of the mine .... " 30 C.F.R.
§ 75.1707.
It reiterates the language of section 317(f)(4) of the Mine Act,
which was carried over without change from section 317(f)(4) of the Federal
Coal Mine Health and Safety Act of 1969 ("Coal Act"). The legislative history
of the Coal Act clarifies the intended meaning of section 75.1707. The Senate
Report reveals Congress's recognition of the importance of maintaining safe
escapeways, stating that the Coal Act "[r]equire[s] at least two separate and
distinct travelable passageways clearly marked as escapeways which shall be
maintained in safe condition." S. Rep. No. 411, 9lst Cong., 1st Sess. 35
(1969), reprinted in Senate Subcommittee on Labor, Committee on Labor and
Public Welfare, 94th Congress, 1st Sess., Part I Legislative HistotY of the
Federal Coal Mine Health and Safety Act of 1969, at 161 ("Legis. Hist.").
Congress also recognized that, in order to .. increase the safety of escapeways,
they should be separated from areas in which fires often occur. The Senate
Report explains that the Coal Act requires "that every underground mine
furnish at a minimum two separate escapeways adequately ventilated and marked,
one of which must be separated from haulage entries where many mine fires
start." Legis. Hist. at 129. In addition, the Senate Report states that
section 317(f)(4) "requires that all new mines separate the escapeway which is
on intake air from the belt or trolley haulageway because mine fires often
originate in these haulageways and within a relatively short time the air
current is completely filled with smoke, and harmful matter." Legis, Hist. at
209. Thus, the express purpose of section 317(f)(4) is to ensure that intake
air in escapeways remains uncontaminated by separating the escapeways from
other entries, thus preventing smoke or other harmful matter from circulating
to an adjoining escapeway in the event of a fire.
A standard must be construed in accordance with the intended purpose of
the statutory language upon which it is based. We agree with the Secretary
that, in order to effectuate its purpose, section 75.1707 must be interpreted
to require separation of the intake air ventilating an escapeway from the
airways ventilating haulage entries. The judge's construction of the
standard, which requires some separation of the entries but allows free
movement of air currents, thwarts the standard's purpose of maintaining only
intake air in escapeways. Such a construction could lead to absurd results in
that an intake escapeway could be considered "separated" from a haulage entry
merely with a railing or chain link fence. We conclude, therefore, that the
judge misconstrued section 75.1707.

We need not address Consol's argument that there is no requirement that
an intake escapeway be reasonably airtight. The judge found that there was an
8-by-16 inch hole in the stopping separating the intake escapeway from the
track entry. It is undisputed that in the event of a mine fire, such a hole
could permit contaminated air to enter the escapeway, resulting in the risk of
carbon monoxide poisoning and impaired visibility. Tr. 52-53. Thus, the air

1557

course ventilating the intake escapeway was not separated from the track entry
airway. Accordingly, we affirm Citation No. 3315803.

III.
Conclusion
For the reasons discussed above, we reverse the judge's determination
that Consol did not violate section 75.1707. Ye remand this proceeding to the
judge to determine whether the violation was S&S and to assess a civil
penalty. The judge should take such further action with respect to Citation
No. 3315865 as is consistent with this decision.

Arlene Holen, Chairman

Richard V. Backley, Co~

~!?~

Joyce A. Doyle, Commissioner

L. Clair Nelson.

Distribution:
Susan E. Long,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Daniel E. Rogers,
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Administrative Law Judge Avram I.Jeisberger
& Health Review Commission
Federal Mine
5203 Leesburg Pike. Suite 1000
22041
Falls Church,

1558

Cnmmi~~innPr

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 92-204
A.C. No. 42-01697-03637
Bear Canyon No. 1

Vo

C.W. MINING COMPANY
Respondent

DECISION
Appearances~

Robert J. Murphy, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner;
Carl E. Kingston, Esq., Salt Lake City, Utah,
for Respondent.

Before:

Judqe cetti

This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., (1988}
0
00
' Mine Act oo or
Act 11 ) •
The Secretary of Labor issued a citation
·::o
.vL
Company (C.W. Mining) alleging a violation of 30
.F.R. § 5.220(a) (1) (1991)
for operating a mine without an
approved roof control plan.
It
C.W. Mining's contention that there was no violation
of 30 C.P.R. § 75.220(a) (l)r that the mine's old roof control
was improperly revoked, that MSHA did not negotiate in.good
, that the mine's old roof control plan was adequate, more
and a safer roof control plan than the new current plan,
that. t:h.e current roof control plan was submitted by the operator
·co ~che llliSHA district manager for approval under protest and for
'::hese reasons the citation charging the operator for operating
~he mine without an approved roof control plan should be vacated.

30 C.F.R. § 75.220(a)(1)

(1991), provides as follows:

Each mine operator shall develop and follow a roof
control plan, approved by the District Manager, that is
suitable to the prevailing geological conditions, and
the mining system to be used at the mine.
Additional
measures shall be taken to protect persons if unusual
hazards are encountered.

1559

SYNOPSIS
With the safety of the miners, my evaluation of the evidence
and the established applicable law in mind, I find on careful
review of the record that within the framework of the evidence
presented, MSHA has carried its burden of proof on the critical
central issues in this case and conclude the violation of 30
c.F.R. § 75.220(a) (1) was established.
STIPULATIONS
At the hearing the parties entered into the following
stipulations, which I accept.
1. C.W. Mining Company is engaged in mining and selling of
bituminous coal in the United States and its mining operations
affect interstate commerce.
2.
C.W. Mining Company is the owner and operator of Bear
Canyon No. 1 Mine, MSHA I.D. No. 42-01697 an underground coal
mine.
3. c.w. Mining Company is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §§ 801
et ~ ("the Act").
4.
matter.

The Administrative Law Judge has jurisdiction in this

5. The subject citations and orders were properly served by
duly authorized representatives of the Secretary upon agents of
c.w. Mining Company on the dates and places stated thereinv and
may be admitted into evidence for the purpose of establishing
their issuance 1 and not for the truthfulness or relevancy of any
statements asserted therein.
6.
The exhibits to be offered by c.w. Mining Company and
Secretary are stipulated to be authentic but no stipulation
is made as to their relevance or the truth of the matters
asserted therein.
~ne

7. The proposed penalty will not affect c.w. Mining
Company 1 s ability to continue business.
8.
C.W. Mining Company is a medium size mine operator with
551,084 tons of production in 1990.
9.
The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the two
years prior to the date of the citation.

1560

I

C.W. Mining is the owner and operator of the Bear Canyon No.
1 Mine 2 in Huntington, Utah. The Bear canyon Mine is an underground coal mine required by the Mine Act to operate under an
approved roof control plan. At all times prior to October 23,
1991, the date the citation in question was issued, c.w. Mining
operated the Bear Canyon Mine under a roof control plan approved
by the Secretary of Labor.
In June 1991, when its roof control
plan came up for its six-month review as provided by 30 C.F.R.
§ 75.223(d), 3 MSHA proposed certain revisions of the plan that
c.w. Mining found unacceptable. The parties communicated for
several months particularly with respect to the two primary
differences in the old plan and the new current plan. The two
primary differences between the old plan and the new or current
approved roof control plan are (1) the distance that the miners
can mine before permanent roof bolts are installed and (2) the
manner and sequence of the st~ps taken in pulling {extracting}
pillars.
·
Under the old plan the operator was allowed to advance 120
feet where adequate top coal was available to provide temporary
roof support between 120 foot bolting cycles. Only where adverse
roof conditions were encountered or where insufficient top coal
existed, was the operator required by the old plan to roof bolt
every 20 feet and not allow miners inby the last row of roof
bolts.
Under the new current plan, top coal irrespective of its
thickness and strength cannot be used as temporary roof support
and Respondent must be on a 20 foot bolting cycle at all times 1
regardless of the condition or the amount of the top coalo
With
respect to extracting pillars under the old plan, roof bolting
·the splits was not required when adequate top coal was available
for supporto
Under the current plan, all pillar splits are
required to be roof boltedv regardless of good or bad roof
conditions and the required fender cut sequence is different than
·the sequence under the old plan"
('rro 54v 88-89 531v 601-602v
604
0

2

This mine is also referred to by its former name the "Coop Mine" in
the exhibits and the transcript of testimony.
3

30 C.F.R. § 75.223{d) provides:
(d) The roof control plan for each mine shall be
reviewed every six months by an authorized representative of the Secretary.
This review shall take into
consideration any falls of the roof, face and ribs and
the adequacy of the support systems used at the time.

1561

Under the new current plan miners always work under a fully
bolted roof. This follows from the fact that c.w. Mining under
the current plan is limited to 20 foot cuts with a 20 foot roof
bolting cycle.
It is undisputed that 20 feet is the maximum
distance Respondents' continuous miners is able to travel under
remote control.
II

BRIEF PROCEDURAL AND FACTUAL HISTORY OF
NEGOTIATIONS LEADING TO APPROVAL
OF CURRENT ROOF CONTROL PLAN

In 1988 the regulations concerning roof support in 30
c.F.R., subpart c were revised. Section 30 C.F.R. 75.220(f) as
revised mandated that existing roof control plans that conflict
with the revised regulations meet the requirements of the revised
roof regulations by September 28, 1988. C.W. Mining's president,
superintendent and engineering·consultant met with District 9
roof control specialist in early January 1989 and the roof control plan was reviewed and revised. This old plan was approved
by the district manager on January 26, 1989. Thereafter, the
roof control plan was reviewed by MSHA every six months and on
each review was found to be adequate until August 9, 1991, when
MSHA informed the operator that the roof control plan was inadequate.
(Tr. 522-524). This is the same plan that was later
rescinded by MSHA on October 23, 1991. The citation in question
was issued the same day the plan was revoked when mining operations continued without an approved roof control plan. MSHA gave
the operator several extensions to abate the citation to permit
uninterrupted production until the citation was abated on
November 4u 1991
Abatement was accomplished by c.w. Mining submitting under
protest the current plan which was approved November 4, 1991 by
the MSHA district manager.
The sequence of the Bishop type negotiations in this case
for a suitable roof control plan can be summarized as follows~
June 29 0 1991 1 C.W. Mining sent to the MSHA District 9
Manager for the six months review its 22 page roof control plan
for Bear Canyon #1 Mine last approved March 5, 1990.
In the
letter transmitting the plan C.W. Mining stated that it did not
feel any changes were needed at that time.
(Govt. Ex. 2).
August 9~ 1991, MSHA sent a five page letter to c.w. Mining
stating that on review by MSHA personnel the plan was found to be
inadequate. The letter listed 30 "necessary" changes in the
pillar section of the roof control plan and 10 "necessary"
changes in the development section of the roof control plan.
(Govt. Ex. 3). MSHA requested c.w. Mining to submit a new plan

1562

by August 26, 1991 addressing the 40 concerns MSHA set forth in
the letter.
August 22, 1991, c.w. Mining sent a letter to MSHA stating
that the roof control systems set forth in the plan submitted for
review had been used at the mine for 30 years and there had been
no uncontrolled roof falls during that time.
c.w. Mining once
again asked that the submitted plan be approved with no change.
The letter did not otherwise respond to the 40 concerns MSHA
listed in its letter of August 9, 1991.
September 9, 1991, MSHA sent a second letter to MSHA (Govt.
Ex. 6) requesting that c.w. Mining respond to and comply with
MSHA's letter of August 9, 1991. This letter also informed c.w.
Mining that if an acceptable plan was not received by the due
date, September 30, 1991, that the plan may be rescinded and that
any further mining activity would result in the issuance of a
citation charging a violation of 30 C.F.R. § 75.220.
It is the Secretary's contention that as of September 9,
1991, all the requirements of the Bishop decision were fulfilled.
MSHA nevertheless agreed to extend the deadline so that a faceto-face discussion could be held with c.w. Mining concerning the
reasons that the roof control plan had to be revised.
The due
date was extended to September 24, 1991.
On September 24, 1991, a face-to-face meeting of mine management and MSHA was held in Price, Utah. Present at the meeting
in Price included the following:
Bill Stoddard - President of c.w. Mining
Ken Defa
Superintendent of Bear Canyon No" 1
Mine
Taylor - MSHA District Engineering Coordinator
{Acting District Manager
William Ponceroff - MSHA District Roof Control
supervisor
Tony Gabossi
MSHA Acting Subdistrict Manager
Bill Ledford
MSHA Field Office Supervisor
At the meeting the need for full roof bolting was discussed
detail as well as other requested changes addressed in MSHA's
second disapproval letter dated September 9 1 1991.
On October 4u 1991, the district manager sent a follow-up
letter to c.w. Mining recapping the discussion and agreement
reached at the September 24, 1991, face-to-face meeting.
The
letter concludes as follows:
During a phone conversation with William
Ponceroff, District Roof Control Supervisor,
on September 30, 1991, Mr. Bill Stoddard,

1563

President, C.W. Mining Co., agreed to submit
an acceptable plan within two weeks.
It is
agreeable to extend the deadline for the
submittal of an acceptable roof control plan
to October 11, 1991.
As discussed in the meeting held on September 24, 1991, deadlines for ending the
review process have been extended too many
times.
c.w. Mining Co. must make the necessary revisions and submit an acceptable
roof control plan by October 11, 1991, or the
currently approved roof control plan will be
rescinded. Any further mining activities
without an approved plan would be a violation
of 30 CFR 75.220.
Be advised that the requirements for the
Bishop decision and 'Program Policy Letter No.
P89-V3 (copy attached) have been fulfilled.
c.w. Mining Co. must have an acceptable roof
control plan ready for submittal in order to
prevent loss of production. The company may
then contest the provisions of the roof
control plan on the basis of a technical
citation.
If you have any questions. please contact
this office at (303) 231-5462.
Sincerely~

I

William Ao Holgate

October 12, 1991, c.w. Mining submitted a "new revised" roof
control plan {Govt. Ex. 12) which MSHA found unacceptable and
ected.
October 22p 1991r MSHA faxed to c.w. Mining 16 reasons why
found the gunew revised" roof control plan unacceptable.
(Govt. Ex. 13). The hard copy of the same date, October 22,
1991, in addition to specifying the reason the plan was
unacceptable again recapped the history of negotiation and
concluded as follows~
This requested revision is necessary to
formulate a plan suitable to the present
conditions and mining systems at the mine,
and to ensure the health and safety of the
miners when future mining occurs. Since all
negotiations concerning the development of an
acceptable roof control plan, in accordance

1564

with 30 CFR 75.220, remain at an impasse, the
currently approved roof control plan is rescinded. Any further mining activities without an approved plan is a violation of 30 CFR
75.220.
If you have any questions, pl~ase contact
this office at (303) 231-5462.
On october 23, 1991, the date that the old roof plan was
revoked and the citation issued for violation of 30 C.F.R.
§ 75.220, c.w. Mining submitted another revised roof control plan
that was similar to the current approved plan.
In its transmitted letter, c.w. Mining stated as follows:
Under protest we do agree to the enclosed
plan as dictated by your office. We still
believe the original roof control plan is
just as safe, and in pillar extraction your
system is less safe because it puts our
people in the pillar splits where they are
exposed to sloughing ribs and possible injury
while bolting. It also forces us to extract
more than one pillar at a time and will cause
the pillars to load up and be more apt to
cause out bursts.
We also feel more comfortable with the
pillar extraction sequence we have used for
over 30 yrs. with no serious accidents or
injures (sic) related to roof problems. We
found
works better and has proven to be
safer than other systems we have tried, including the system Mro Ponceroff is forcing
us to useo
In rebuttal to the C.W. Mining claim that MSHA dictated the
new plan, counsel for the Secretary points to Mr. Ponceroffvs
<testimony at the hearing as follows:
We did not dictate this plan. We approve
plans, we don't say what goes in them. As
long as they comply with statutory provisions
and good mining principle as determined by
the district and the representative of techs
and the mining industry as a whole in relation to site specific instances in that mine,
we approve them.
[TR 95]
on October 29, 1991, the Mine Superintendent, Ken Defa,
after a telephone conversation with Mr. Ponceroff, MSHA Supervisory Roof Control Specialist, sent MSHA revised plans concern-

1565

ing the pillar extraction sequence that Mr. Ponceroff had
requested.
(Govt. Ex. 16).
October 30, 1991, the District Manager sent the mine operator, Mr. Stoddard, six detailed specific reasons the submitted
roof control plan remained unacceptable.
In response to the
District Manager's letter, c.w. Mining that same day (October 30,
1991), faxed the six revisions to the plan that were specifically
requested by the District Manager.
(Govt. Ex. 19).
November 4, 1991, the MSHA District Manager approved the
revised c.w. Mining roof control plan.
November 25, 1991, the District Manager corrected an inadvertent error on page 15 of the approved plan and reissued a new
copy of the entire approved plan consisting of 18 pages. The
approved plan included the disputed 20 foot roof bolting cycle
and the new disputed pillar extraction procedure and fender cut
sequence.
(Govt. Ex. 35-A). ·
III

DISCUSSION AND FINDINGS
Preliminarily it should be noted that in Dole, 870 F.2d 662
at 667 the court stated "[t]he specific contents of any individual mine [roof control] plan are determined through consultation
between the mine operator and the [MSHA] district manager." In
Peabody Cole company, 15 FMSHRC 389 (March 1993) the Commission
held that "both the Secretary and the operator are required to
enter into good faith discussions and consultation over mine
~lans~ 0 '
The Commission in Peabody 1 suprau further explained this
process and quoted their decision in Carlson Countvu 7 FMSHRC 137
as follows~
The requirement that the Secretary approve
an operator's mine ventilation plan does not
mean that an operator has no option but to
acquiesce to the Secretary•s desires regarding the contents of the plano Legitimate
disagreements as to the proper course of
action are bound to occur.
In attempting to
resolve such differencesv the Secretary and
an operator must negotiate in good faith and
for a reasonable period concerning a disputed
provision. Where such good faith negotiation
has taken place, and the operator and the
Secretary remain at odds over a plan provision, review of the dispute may be obtained
by the operator's refusal to adopt the disputed provision, thus triggering litigation

1566

before ·the Commission. 7 FMSHRC at 1371
(citation omitted) (emphasis added).
Section 302(a) of the Mine Act mandates each operator to
carry out on a continuing basis a program to improve the roof
control system of each mine as follows:
Sec. 302. (a) 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 within sixty days after the
operative date of this title. The plan shall
show the type of support and spacing approved
by the Secretary.
(Emphasis added).
30 u.s.c. § 862(a)
Upon review of the exhibits referenced above, the testimony
of the witnesses and the records as a whole I find that both the
operator and the Secretary negotiated in good faith and for a
reasonable period of time over their legitimate differences.
Nevertheless, the
were unable to resolve their differenceso
Consequently
order to continue production after
revocation of the old plan the operator under protest submitted
the revised current approved plan.
Although the opera/cor and the Secretary in an attempt to
resolve their legitimate differences negotiated
good faith and
for a reasonable oeriod of ·i:ime t.hev remained at odds. In Dole
supra the Court of Appeals at page 669 footnote 10 4 states tha·t

Dole supra a·t footnote 10. We note that while the mine
operator had a role to play in developing plan contents,
MSHA always retained final responsibility for deciding
what had to be included in the plan. In 1977 Congress
"caution(ed} that while the operator proposes a plan and
is entitled, as are the miners and representatives of
miners to further consultation with the Secretary over
revisions, the Secretary must independently exercise his
judgment with respect to the content of such plans in
connection with his final approval of the plan."
s.
Rep. No. 95-181, 95th Cong., 1st Seas. 25 (1977),

1567

while the mine operator had a role to play in developing plan
contents, MSHA always retained final responsibility for deciding
what had to be included in the plan.

IV
MSBA'S REASONS FOR REVOCATION OF OLD PLAN
The reasons why the MSHA District Manager revoked the old
roof control plan are summarized by MSHA in its Post-Hearing
Brief, page 6 and 7, as follows:
The roof control plan was revoked for several
reasons:
1.
Under the old plan, men were allowed to
work and travel under unsupported roof.
Mining experience has shown that traveling
under unsupported 'roof is the most hazardous
conduct in mining. Roof falls are the
largest cause of fatalities in underground
mines today.
Statistics show that persons
are killed by going under unsupported roof.
[TR 34-37; 126-127].

2.
Under the old plan, c.w. Mining was only
required to bolt when it believed that i t was
necessary, yet it is too difficult to know
when it might be necessary to fully bolt.
The transitional areas between good roof and
bad roof can only be determined under the old
by human judgment. Offset in the roof
observed by Mr. Ponceroff indicates that the
company was not successful in determining
when the conditions were bad. They must be
aware of the conditions, before someone goes
them~ not after.
The only way to avoid
is to
bolt. [TR 40-44; 83-84] •

. Transi·tional areas between good roof and
bad roof can only be determined under the old
by human judgment and the violation
at this mine shows that numerous
citations and orders existed for failure to
follow the roof control plan. Also preshift,
and on shift violations were issued for
failure to properly examine the mine roof,
and an imminent danger order for a bad roof
has been issued at this mine, further indiU.S.Code Cong.&Admin. News 1977, p.3425.

1568

eating the unwillingness of the operator to
keep the roof in good condition.
4. The operator maintained that 1 to 3 feet
of top coal was the primary roof support at
this mine. However, roof bolts were being
installed systematically throughout all
development sections. Hence the mine has
agreed that the roof is bad in many
locations.
5. Conditions of the mine observed by
inspectors, District 9 specialists and MSHA
technical support indicate that it is an
extremely unsafe practice for the miners to
work under roof that is not supported, since
it is uncertain what a miner may encounter.
All sections of the roof must be bolted
before anyone goes under the roof.
6. History of Violations - roof falls at this
mine.
(Exhibit Nos. 1 and 4).
7.
C.W. Mining had a particularized history
of violations of its own Roof Control Plan.
(Exhibit 25} .
Based upon all of the information provided by
the on site inspectors, the visits made by
Technology Center experts, the history of
this mine and the newly revised roof control
regulations& Mr. Ponceroff recommended that
changes be made
the old roof control plan.
Those changes primarily related to a system
of full-bolting. That is a system where the
area is bolted before any miner is required
to work or travel under the roof. The result
of the recommendation was that C.W. Mining
would be limited to 20 foot cuts with its
continuous miner, since that is the distance
that the equipment can travel under remote
control. Under the old system~ the miner
operator could go under the roof in areas
just cut, without supportingQ and could
develop a distance of more than 100 feet.
Under the new plan with full bolting, the
distance is reduced to 20 feet.

* * * * *
The Commission has taken note of the fact
that mine roofs are inherently dangerous and

1569

that even a good roof can fall without
warning.
Consolidation Coal Company, 6
FMSHRC 34, 37 (January 1984). It has also
stressed the fact that roof falls remain the
leading cause of death in underground mines,
Eastover Mining co., 4 FMSHRC 1207, 1211
(July 1982), Halfway Incorporated,
8 FMSHRC 8, 13 (January 1986).

v
Respondent presented considerable evidence to support its
contention that its old roof control plan last approved by the
District Manager on March 5, 1990, was adequate and appropriate
for the particular conditions at the mine and therefore should
not have been revoked. Respondent presented the testimony not
only of its officials and employees but also the testimony of
three federal coal mine inspectors to this effect. These MSHA
coal mine inspectors were quite familiar with the particular
conditions at the mine. Their testimony supports Respondent's
contention that in most areas of the mine top coal was of adequate thickness and strength to be used as temporary roof support
for the 120 foot cuts and bolting cycles used under the old plan.
Evidence was also presented that a 20 foot full roof bolting
cycle was used by c.w. Mining under the old plan when adverse
roof conditions were encountered. The mine inspectors called by
Respondent also testified that the pillar extraction procedure
under the old roof control plan was safe and even safer than the
pillar extraction procedure under the current approved roof
control plano
WI
RespondentPs expert witness Dro Krishma Sinha, a geological
engineeru based upon the tests he performed and his computer analysis of the results he obtained, testified that there was no
added safety benefit in requiring roof bolts to be installed in
20
cycles over 120 foot cycles. Dro Sinha's testimony was
not persuasive.
He did not take or supervise the taking of samused in his analysis. He did not know who took the samples
or even what part of the mine from where the samples were allegedly taken.
(Tro 993). He took neither tensile nor sheer
strength tests.
(Tr. 995). He assumed the material to be homogeneous.
(Tr. 999). Mro Ropchan the mining engineer employed by
the MSHA Technology Center testified this assumption was a fatal
miscalculation. Mr. Ropchan stated that Mr. Sinha's computer
analysis failed to consider the joints and fractures of the coal.
(Tr. 996-998, 1091).
The Secretary in support of his position presented the testimony of M. Terry Hoch, the mining engineer who heads the Roof
Control Division of the MSHA Safety and Health Technology Center

1570

in Pittsburg (Tr. 381, Govt. Ex. 27); Jerry Davidson, a geologist
employed by the MSHA Safety and Health Technology Center and
David Ropchan, a mining engineer for the MSHA Safety and Health
Technology Center since 1971.
(Tr. 315). All of these experts
visited the mine in question and made visual observations of the
mine conditions.
David Ropchan testified that the method of pillar extraction
used under the old plan was more dangerous than pillar extraction
under the current plan since the old plan opened up more ground
and thus exposed the miners to more unsupported roof. He stated
that stress on the roof increases with the square of the span of
the roof and when the roof span increases, tensil stress is
greatly increased.
(Tr. 1088-1089).
Jerry Davidson, the MSHA geologist, testified he did not
consider pillar extraction under the old plan a safe way to
extract pillars "because under.the old plan a lot of ground (is)
opened up" and practically no ground support was installed. Thus
under the old plan the continuous miner operator, his helper and
the shuttle car operator and possibly the section foreman would
be exposed to a greater hazard of roof falls than under the
current plan which involves 11 opening up" less ground.
Mr. Hoch who heads the MSHA Technology Roof Control Division
testified that District 9, where the mine in question is located,
was the only district that still has a roof control plan that
permitted miners to travel under an unsupported coal roof or a
roof supported only by head (top) coal.
(Tr. 393-394). He explained that a coal roof cannot be a sole means of support
because as a materialf
inconsistentr it is jointed, has
;::!eats and, most importantly, can and
fall.
(Tr. 448-449).
Mr. Hoch stated that the primary thrust of the 1988 revised
roof control regulations was to "incorporate new technologies so
that miners would not be required to work or travel in areas
\vhere roof was not supported. He stated that head or top coal
can uGmasJ\:uu roof problems so you can't see hazards such as joints
and fractures.
He also stated that coal left on the roof can
enhance the resistance to absorption of humidity increasing the
dangers of roof falls.
Based on the testimony of the experts from the Safety and
Health Technology Center and the undisputed fact that the operator was encountering changing adverse roof conditions in the mine
that all parties agree required a 20 foot roof bolting cycle, I
find that the new current roof control plan is suitable for the
mine in question and is mine specific. It is not necessary or
appropriate in this case to reach the question of whether the use
of top coal alone to support the roof is proscribed by the present roof control regulations.

1571

Respondent argues that its witness should be credited since
its witnesses were more familiar over a longer period of time
with the particular conditions at the mine and spent more time
observing the mine in operation rather than MSHA's witnesses who
were less familiar with the mine and who spent less time observing and examining the conditions of the mine. The Commission in
Cyprus Tonopah Mining Corp., 15 FMSHRC 367 at 372 (March 1993)
quotes from its earlier decision Asarco, Inc., 14 FMSHRC 941, at
949 (June 1992) as follows:
The Commission has recognized that:
[e]xpert witnesses testify to offer their
scientific opinions on technical matters to
the trier of fact.
If the opinions of expert
witnesses conflict in a proceeding, the judge
must determine which opinion to credit, based
on such factors as ,.the credentials of the
expert and the scientific bases for the
expert's opinion.
Based upon their superior credentials I credit the opinion
of the Secretary's Safety and Health Technology Center experts.
Based upon their testimony and the undisputed fact that there
were changing adverse roof conditions in the mine that required
full roof bolting on 20 foot cycles, I find that the old roof
plan was no longer suitable to the conditions of the mine in
question and was properly revoked. On the same basis I also find
the current approved roof control plan is suitable to the
conditions of the Bear Canyon No. 1 Mine as contemplated by 30
CoFoRo § 75o220(a) (1) and section 302(a) of the Mine Acto
Consistent with the above findings and conclusions I find
the violation of 30 C.F.Ro § 75.220(a) (1) as charged in the
citation was established. The violation is technical nature.
Consequently the $20 penalty MSHA proposes is appropriate.
ORDER

lo Citation No. 3582718 and the MSHA proposed $20 penalty
are affirmedo
2o Respondent shall pay a civil penalty of $20 to the
Secretary of Labor within 30 days of this decision and upon
receipt of payment, this proceeding is dismissed.

A ust F. Cetti
Administrative Law Judge

1572

Distribution:
Robert J. Murphy, Esq., Office of the Solicitor, u. s. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294
(Certified Mail)
Carl E. Kingston, Esq., 3212 South state Street, P.O. Box 15809,
Salt Lake City, Utah 84115
(Certified Mail)

sh

1573

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 21993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ON BEHALF OF BRIAN MOORE,
Applicant
and

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 93-650-D

.

PIKE-CD 93-07

0

BRIAN K. MOORE,

Mine No. 3
Intervenor

v.
TOLER CREEK ENERGY, INC.,
Respondent
ORDER OF DISMISSAL
Before~

Judge Maurer

All the parties to this proceeding have reached an amicable
settlement and counsel have therefore jointly moved to dismiss
this proceeding, with prejudice, on the basis of their settlement
agreement.
Accordingly; and for good cause showno the proposed settlement is approvedv the motion to dismiss is GRANTED and the
captioned proceeding
~ISMISSEDv with prejudice"

Judge
Distribution~

Gretchen No Lucken 0 Esqo 0 Office of the Solicitor 0
4015 Wilson Boulevard, Suite 400v
Arlingtonu VA 22203 (Certified Mail)
Uo So Department of Laborv

Tony Oppegard, Esq., Mine Safety Project of the Appalachian
Research & Defense Fund of Kentucky, Inc., 630 Maxwelton court,
Lexington, KY 40508 (Certified Mail)
Mark M. Lawson, Esq., White, Elliott & Bundy, P.
Bristol, VA 24203-8400 (Certified Mail)
dcp
1574

o. Box 8400,

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ON BEHALF OF JOSEPH A SMITH,
Complainant
v.

31993

. DISCRIMINATION PROCEEDING
0

Docket No. PENN 93-179-D

... MSHA Case No. PITT CD 92-8
Homer City Mine

HELEN MINING COMPANY,
Respondent

.
0

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ON BEHALF OF
PAUL FORNEY,
RICK BUTLER,
LAWRENCE STOSSEL,
JOSEPH A. SMITH,
Complainants

DISCRIMINATION PROCEEDING
Docket No. PENN 93-180-D

0
0

v.

MSHA Case Nos. PITT CD 92-09
PITT CD 92-10
PITT CD 92-11
PITT CD 92-12

. Homer City Mine

HELEN MINING COMPANY,
· Respondent

DECISION APPROVING SETTLEMENT
Before~

Judge Melick

These. cases are before me upon Complaints of Discrimination
and Petitions for Assessment of civil Penalty under the Federal
Mine Safety and Health Act of 1977 (the Act). The parties have
agreed to settle the cases on the following terms:
l.
Respondent admits that a violation of Section 105(c)
occurred as alleged in the Secretary 1 s Complaints of Discrimi=
nation filed separately in each case. The admission that a
violation occurred is solely for purposes of settlement of
these proceedings under the Mine Actv and does not constitute
an admission by Respondent that it violated any other law 1 rule 1
~rocedure or contractual provision.

2.
Respondent has agreed to pay a civil penalty in the
amount of $500 for each case, totalling $1,000. The fact that
the Homer City Mine has been closed was considered a mitigating
factor with respect to the amount of civil penalty.

1575

3.
Superintendent Thomas Hofrichter agrees to attend a
training session (not to exceed eight (8) hours of training),
with MSHA to discuss the anti-discrimination provisions of
the Mine Act, specifically walkaround rights and work refusals
based on safety concerns. (The date, time and location of
the meeting will be arranged by MSHA.)
I have considered the representations and documentation
submitted in these cases, and I conclude that the proffered
settlement is appropriate. It is also noted that none of the
individual complainants have objected to th~s settlement.

s~·

WHEREFORE, the motion for approval of
tlement is
GRANTED, and it is ORDERED that Re ondent pa a penalty
of $1,0000 within 30 days of this
der.
\

\

Gary Me ick
Adminis rative
Distribution:
Gretchen M. Lucken, Esq., Office of the Solicitor,
u.s. Department of Labor, 4015 Wilson Boulevard,
Suite 400, Arlington, VA 22203 (Certified Mail)
Michael Klutch, Esq., Polito and smock, Four Gateway
Center 0 Suite 480 0 Pittsburgh 9 PA 15222 (Certified Mail)
}oiJr.

Joseph bL Smithu RD #3 9 Box 266 0 Homer Cityu PA

15758 (Certified Mail)

Mr. Paul Forney, 430 Market Street, Saltsburg, PA
15681 (Certified Mail)
Lawrence Stossel RD #5 0 Box 27lu Indiana 9 PA
15701 (Certified Mail)

~rro

Mro Rick Butler 0 P.O. Box 785 0 New Apollou PA 15673

(Certified Mail)

\lh

1576

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

31993
CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 92-992
A.C. No. 46-01453-04013

Vo

CONSOLIDATION COAL COMPANY,
Respondent

Docket No. WEVA 92-993
A.C. No. 46-01453-04014

..

Docket No. WEVA 92-1042
A.C. No. 46-01453-04020
Humphrey No. 7 Mine

PINAL DECISION
Appearances:

Charles M. Jackson, Esq., Office of the Solicitor,

u.s. Department of Labor, Arlington, Virginia,

for Petitioner;
Daniel E. Rogers, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania,
for Respondent.
Before:

Judge Barbour
STATEMENT OF THE CASE

On June 30u 1993u I issued a Partial Decision Pending
Final Order in these matters in which I retained jurisdiction
pending resolution by the parties of all issues pertaining
~o Citation No. 3108613u Docket No. WEVA 92-992, a citation

issued pursuant to Section 104(a) of the Mine Act, 30 u.s.c.
814(a). I did so upon the oral assurance of counsels that the
parties fully expected to settle the matter based upon the then
forthcoming decision of another Administrative Law Judge.
Consolidation Coal Co. 1 15 FMSHRC
Docket No.
WEVA 92-992u etc.
(June 30, 1993) slip op. 3, 32.
§

li

The parties now have reached a settlement and the Secretary
has filed a motion pursuant to Commission Rule 30, 29 C.F.R.
§ 2700.30u seeking approval of the proposed settlement.
The
citationu initial assessment, and the proposed settlement amount
is as follows:

WEVA 92-992

Citation No.
3108613

Date
1/28/92

30 C.F.R.
section
75.1003(c)

1577

Assessment
$206

settlement
$124

The Partial Decision Pending Final Order contains findings
applicable civil penalty criteria. Consolidation Coal
co., supra, slip op. 30-31. Citation No. 3548397, which was
issued because the trolley wire at a mantrip station was not
adequately guarded over one of two personnel carriers, which
contains the inspector's finding that the violation of section
75.1003(c) constituted a significant and substantial contribution
to a mine safety hazard {"S&S" violation). counsel for the
Secretary states that no evidence is available as to the height
between the exposed personnel carrier and the unguarded wire, and
therefore the Secretary does not believe he will be able to prove
the S&S nature of the violation -- i.e, that a serious injury was
reasonably likely to have resulted from the condition.
rega~ding

CONCLUSION

After review and consideration of the pleadings, arguments,
and submissions in support of the motion to approve the proposed
~ettlement.
I find that approval of the suggested reduction in
the penalty assessed for thesubject violation is warranted and
proposed settlement disposition is reasonable and in the
public interest. Pursuant to 29 C.F.R. § 2700.30, the motion IS
GRANTED, and the settlement is APPROVED.
ORDER

Respondent IS ORDERED to pay a civil penalty in the
settlement amount shown above in satisfaction of the violation in
question and the Secretary IS ORDERED to modify Citation
No. 3108613 by deleting the S&S designation and by changing the
inspector 1 s assessment of gravity in box lO.A. to "unlikely."
::~ay:ment is to be made to MSHA within
(30) days of the date
proceeding and the modifications are
be made within
(30} days as well.
In addition~ the payment of the
~ssessed civil penalties set forth
the Partial Decision and
~he modifications therein ordered are to be made within
thirty (30) days of this proceeding. Consolidation Coal Co,,
supra slip op. 32.
Upon receipt of payment and completion of
modificationsp these proceedings are ~ISMISSED.

!;

- "_t?£;;/.
/
{)'~~-/,:_~

DavJ.d F. Barbour
Administrative Law Judge
(703) 756-5232

1578

Distribution:
Charles M. Jackson, Esq., Office of the Solicitor,
UoS. Department of Labor, 4015 Wilson Boulevard, Suite 516,
Arlington, VA 22203 (Certified Mail)
Daniel E. Rogers, Esq., Consolidation Coal Company, Legal
Department, 1800 Washington Road, Pittsburgh, PA 15241
(Certified Mail)
fepy

1579

I'BDBRAL JUJIB SU'BH DD BBALTB RBVJ:BW COJDO:SSI:OII

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
PALLS CHURCH, VIRGINIA 22041

AUG
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), ON
BEHALF OF EARL SHACKLEFORD,
Complainant

4 1993
TEMPORARY REINSTATEMENT

.

Docket No. KENT 93-620-D

:

BARB CD 93-14

v.

Mine No. 2
HOT ROD COAL COMPANY, INC.,
a corporation; LITTLE BUDDY
CORPORATION, a corporation;
ROBERT HICKS, an individual.;
AND EARL RAMEY, JR., an
individual,
Respondents

:

DECISION
Appearances:

Stephen D. Turow, Esq., Office of the Solicitor,

u. s. Department of Labor, Arlington, Virginia,

Tony Oppegard, Esq., Mine Safety Project of the
Appalachian Research & Defense Fund of Kentucky,
Inc., Lexington, Kentucky, for Complainant;
CharlieR. Jessee, Esq.u Jessee & Read, P.C.,
Abingdon, Virginia, for Respondents.
Before~

Judge Feldman

This expedited case is before me upon the request for
hearing filed on behalf of the above named respondents under
Section 105(c) (2} of the Federal Mine Safety and Health Act of
~977r 30 U.~LC.
801 et seg.u the g1 Actuiju and under Commission
Rules 45(
and (d)u 29 C.F.R. § 2700.45(c) and (d), to contest
Secretary of Labor 9 s Application for Temporary Reinstatement
on behalf of Earl Shackleford. 1 Commission Rule 45(d) provides:
1

Mr. Oppegard filed a Notice of Intervention in this
proceeding pursuant to Commission Rule 4, 29 C.F.R. § 2700.4,
seeking intervention on behalf of Shackleford as "the affected
minerwu in this proceeding. Rule 4 (a) provides:
"Party status. A person, including the Secretary or an
operator, who is named as a party or who is permitted to
intervene, is a party. In a proceeding instituted by the
Secretary under section 105Ccl (2) of the Act, 30 u.s.c.
815(c) (2), the complainant on whose behalf the Secretary has
filed the complaint is a party and may present additional
1580

The scope of a hearing on an application for
temporary reinstatement is limited to a determination
as to whether the miner's complaint was frivolously
brought. The burden of proof shall be upon the
Secretary to establish that the complaint was not
frivolously brought.
This matter was called for hearing on July 27, 1993, in
Pikeville, Kentucky. Prior to the commencement of trial, the
parties engaged in extensive prehearing negotiations. As a
result of these negotiations, the parties advised me that they
had reached settlement of all matters in dispute. The parties
requested that the terms of the settlement remain confidential.
The terms of this agreement are reflected in the transcript of
this proceeding which is incorporated by referenceo The parties'
motion for approval of settlement was granted on the record.
Without disclosing the precise terms of the agreement, the
Secretary and Shackleford have agreed to withdraw the subject
Application for Temporary Reinstatement and the underlying
discrimination complaint with respect to Shackleford's employment
at the No. 2 Mine. Shackleford has also agreed not to pursue any
relief under Section 105(c) of the Act against any other operator

fn. 1 (Continued)
evidence on his own behalf. A miner, applicant for employmentv
or representative of a miner who has filed a complaint with the
Commission under sections 105(c) (3) or 111 of the Actu 30 u.s.c.
815(c) (3) and 821, and an affected miner or his representative
who has become a party in accordance with paragraph (b) [the
intervention provisions] of this section, are parties."
(Emphasis added).
The plain meaning of Rule 4(a) does not provide for
intervention by the complaining miner in an action brought under
section 105(c) (2) of the Act as the complaining miner is already
a party, In additionu Shackleford does not qualify as "an
affected miner" under this rule section (as distinguished from
the term nthe affected minervv used as a basis for this
intervention request) since it is clear that this designation
refers to an individual other than the complaining miner who is
already a party.
Consequently, Oppegard's intervention request was denied on
the record. However, consistent with Rule 4(a), Oppegard was
permit.ted to serve as Shackleford's representative for the
purpose of presenting additional evidence not provided by the
Secretary on Shackleford's behalf. (Tr. 3-4).

1581

or business entity in which any of the named respondents have a
business interest. Finally, the parties have agreed that the
terms of their agreement will be performed within 14 days from
the date of my written decision approving this settlement.
ORDER
Accordingly, IT IS ORDERED that the parties shall take
appropriate action within 14 days of the date of this decision to
fulfill the terms of their settlement agreement. As noted above,
the terms of the settlement agreement approved herein are set
forth in the transcript of this proceeding and are incorporated
by reference. IT IS FURTHER ORDERED that, upon satisfaction of
this agreement, the complainant's Application for Temporary
Reinstatement IS DISMISSED WITH PREJUDICE.

V' Jerold Feldman

Administrative Law Judge

Distribution:
Stephen D. Turow, Esq., Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(Certified Mail)
ie R. Jesseeu Esq., Jessee & Readp P. c., 200 W. Valley
Streetu Abingdonu VA 24210 (Certified Mail)
Tony Oppegard, Esq., Mine Safety Project of the Appalachian
Research & Defense Fund of Kentucky, Inc., 630 Maxwelton Court,
Lexingtonu KY 40508 (Certified Mail)

1582

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

AUG

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

v.

M A G INCORPORATED,
Respondent

51993.

. CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 92-1021
... A.C.
No. 46-08007-03523
Docket No. WEVA 92-1046
. A.C.
No. 46-08007-03524
Docket No. WEVA 92-1047
A.C. No. 46-08007-03525

.. Docket No. WEVA 92-1048

A.C. No. 46-08007-03526

Docket No. WEVA 92-1072
.. A.C.
No. 46-08007-03529
. Docket No. WEVA 92-1073
A.C. No. 46-08007-03528

.
0
0

Docket No. WEVA 92-1133
A.C. No. 46-08007-03530
Docket Noo WEVA 92-1273
A.C. No. 46-08007-03531

.. Docket No. WEVA 92-1274
0

0

A.C. No. 46-08007-03532

Docket No. WEVA 93-113
A.C. No. 46-08007-03539
0
0

g

Docket No. WEVA 93-126
A.Co No. 46-08007-03544
Docket No. WEVA 93-127
A.C. No. 46-08007-03545
Docket No. WEVA 93-167
A.C. No. 46-08007-03548

:

Docket No. WEVA 93-176
A.C. No. 46-08007~03549

.: Alloy Deep Mine #2
1583

DECISIONS APPROVING SETTLEMENTS
Before:

Judge Koutras
statement of the Proceedings

These proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a}, seeking civil penalty assessments for
fifty-four (54) alleged violations of certain mandatory safety
and health standards found in Parts 70, 75, and 77, Title 30,
Code of Federal Regulations. The respondent filed timely answers
contesting the alleged violations, and in response to my
prehearing orders, the parties advised me that they agreed to
settle all of the violations. The petitioner has now filed a
motion pursuant to Commission Rule 31, 29 C.F.R. § 2700.31,
seeking approval of the propo.sec:i settlements. The citations,
initial assessments, and the proposed settlement amounts are as
follows:
Docket No. WEVA 92-1021
Citation No.

Date

30 C.F.R.
Section

Assessment

Settlement

3728176
3728177

4/1/92
4/1/92

75.1714(a)
75.1714-3

$1,700
$1,700

$950
$950

Docket No. WEVA 92-1046
30 C.F.Ro

3728656

Date

Section

Assessment

Settlement

5/29/92

75.321

$431

$250

Docket No. WEVA 92-1047
30 C.F.R.

3728051

Date

Section

Assessment

Settlement

5/12/92

75.303

$595

$350

Assessment

Settlement

$1,600
$1,000

$950
$950

Docket No. WEVA 92-1048
Citation No.

Date

3728046
3728047

5/12/92
5/12/92

30 C.F.R.
Section
75.400
75.402

1584

3728048
3728049
3728050

5/12/92
5/12/92
5/12/92

75.301
75.316
75.301

$600
$700
$700

$360
$420
$420

Assessment

Settlement

$3,300

$1,600

Assessment

Settlement

Docket No. WEVA 92-1072
Citation No.

Date

30 C.F.R.
Section

3728923

6/2/92

75.400

Docket No. WEVA 92-1073
Citation No.

Date

3728561
3728655
3728921
3728928
3728936
3728937
3728938

4/21/92
5/29/92
6/02/92
6/07/92
6/17/92
6/17/92
6/17/92

30 C.F.R.
Section

70.101
75.316
75 .·202 (a)
75.220(a)
75.1101-23(c)
75.220(a)
75.220(a)

$189
$252
$252
$252
$595
$252
$252

$110
$150
$150
$150
$350
$150
$150

Assessment

Settlement

$1,500
$50
$900

$850
$30
$530

Docket No. WEVA 92-1133
Citation No.

Date

3728924
3728934
7289

6/2/92
6/16/92

~

92

30 C.F.R.
Section
75.316
77.1710(i)
5.316

Doc1{e'i:. N·o. WEVA 92=1273

Citation No.

Date

30 C.F.R.
section

Assessment

Settlement

31442

/21/92
7/21/92
1/92
21/92
/23/92
24/92

5.202(a)
75.400
75.1107
75.1105
75.301
77.404(a)

$252
$50
$168
$157
$288
$252

$150
$30
$100
$90
$170
$150

37 1445

31446
3731447

1585

Docket No. WEVA 92-1274
Citation No.

Date

30 C.F.R.
Section

Assessment

Settlement

3728939
3731441

7/15/92
7/21/92

75.1702
75.1103

$50
$595

$30
$350

Citation No.

Date

30 C.F.R.
Section

Assessment

settlement

3731448
3731452
3731451
3731459

7/24/92
7/24/92
7/27/92
8/02/92

75.601
75.902
75.512
75.301

$1,500
$3,000
$800
$1,500

$850
$1,500
$460
$850

30 C.F.R.
Section

Assessment

Settlement

Docket No. WEVA 93-113

Docket No. WEVA 93-126
Citation No.

Date

3731860
3732401
3732402
3732403

11/19/92
11/19/92
11/19/92
11/19/92

75.202(a)
75.208
75.220(a} (1)
75.1704

$267
$252
$252
$50

$160
$150
$150
$30

Assessment

Settlement

$252
$252
$204
$157
$157
$204
$252
$178
$147

$150
$150
$120
$90
$90
120
$150
$100
$80

Assessment

Settlement

Docket No. WEVA 92-127
30 C.F.R.
Section

e-ntation No.
'?l 2407
732408
3732409
3732410
3732411

732416
3732417

1 24/92
11/25/92
11/25/92
11/25/92
11/25/92
11/25/92
11/29/92
11/29/92
11/30/92

Citation No.

Date

3732404
3732405
3732406
3732425

11/20/92
11/24/92
11/24/92
12/03/92

732412
~732414

75.202(a}
75.1725(a)
75.503
75.400
77.400
77.205(a)
75.517
77.523
77.400(a)

30 C.F.R
Section

70.101
75.220(a) (1)
75.360(a)
75.203(a)

1586

$235
$1,300
$1,300
$2,000

$140
$750
$750
$1,000

3732427
3732428
3732429
3732438

12/07/92
12/07/92
12/07/92
12/30/92

75.400
75.202{a)
75.362(b)
75.333 (b) (1)

$900
$900
$900
$50

$530
$530
$530
$30

Docket No. WEVA 93-176
Citation No.

Date

30 C.P.R.
Section

Assessment

Settlement

3732439

12/30/92

75.220(a) (1)

$1,100

$650

Discussion
The pleadings filed by the petitioner contain information
concerning the six statutory civil penalty criteria found in
section llO(i) of the Act. In response to my prehearing orders,
and in the course of a prehearing conference, the parties
confirmed that the respondent·is a small mine operator, and the
petitioner agrees that in view of the respondent's poor financial
condition, as confirmed by the respondent's financial records,
payment of the full amount of the initial proposed penalty
assessments, in the aggregate, will adversely affect the
respondent s ability to continue in business. The parties
confirmed that no accidents or injuries resulted from the cited
conditions or practices, and that all of the cited conditions
were timely abated by the respondent.
In further support of the proposed settlements, the
petitioner's counsel has confirmed that the mitigating
circumstances advanced by the respondent in its answers in these
are accurate and have been confirmed by the MSHA
that has enforcement jurisdiction over the
~:espondent c s mining operation.
In this regard, petitioner us
counsel further confirmed that the respondentRs management has
acted
good faith and has taken remedial action by reorganizing
its management and supervisory staff to insure continued
MSHA's safety and health standards. Under
circumstancesu the parties believe that the proposed
are reasonable and in the public interestv and should

Conclusion
After careful review and consideration of the pleadings and
arguments in support of the proposed settlement of these cases, I
conclude and find that the proposed settlement dispositions are
reasonable and in the public interest. Accordingly, pursuant to
Commission Rule 31 1 29 C.P.R. § 2700.31, the motion filed by the
petitioner IS GRANTED, and the proposed settlements agreed to by
the parties ARE APPROVED.

1587

ORDER

The total amount of the initial proposed civil penalty
assessments is $36,000, and the settlement amounts which have
been approved total $21,000. The respondent IS ORDERED to pay
$21,000, in satisfaction of the enumerated citations which have
been settled in each of these cases. Payment is to be made to
the petitioner (MSHA) in accordance with the following schedule
which has been agreed to by the parties:
The respondent shall pay seven-thousand dollars
($7,000), within thirty (30) days of the date of these
decisions and Order. Payment shall be by check or
money order made payable to the Mine Safety and Health
Administration.
Within thirty (30) days after the initial payment of
$7,000, the respondent shall make a second payment of
five-thousand dollars ($5,000) to MSHA. Within thirty
(30) days thereafter the respondent shall make a third
payment of five-thousand dollars ($5,000) to MSHA. A
final payment of four-thousand dollars ($4,000), shall
be made by the respondent within thirty (30) days after
the third payment is made.
The payments made by the respondent shall include a
reference to the date of these decisions and Order approving the
settlements and requiring payment.
These decisions will not become final until such time as
full payment of the $21~000 9 is made by the respondent to MSHA,
I retain jurisdiction in these proceedings until payment of
all installments are remitted and received by MSHA.
In the event
the respondent fails to comply with the terms of the settlementv
the petitioner may file a motion seeking appropriate sanctions or
further action against the respondent, including a reopening of
the cases. Upon receipt of all of the required payments, these
proceedings are dismissed"

~~Ki~
Administrative Law Judge

1588

Distribution:
Glenn M. Loos, Esq., Office of the Solicitor, u.s. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Mr. Michael Stanley, M.A.G. Inc., P.O. Box 445, Boomer, WV
(Certified Mail)
jml

1589

25031

J'BDBRAL laD SUBTY DD IIBALTB JlBVXBW COIIKZSSXOII

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

v.

91993
CIVIL PENALTY PROCEEDING
:
0

0

..

Docket No. CENT 92-110-M
A.C. No. 34-00015-05509
Hartshorne Rock Quarry

DOLESE BROTHERS COMPANY,
AKA DO LESE BROS. , A
CORPORATION,
Respondent
Appearances:

Ernest A. Burford, Esq., Office of the
Solicitor, u.s. Department of Labor, Dallas,
Texas, for the Petitioner;
Peter T. Van Dyke, Esq., Lytle, Soule & Curlee,
Oklahoma City, Oklahoma, for the Respondent

Before:

Judge Fauver
JDECISION

This is a civil penalty action under § 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq. At
the hearing the caption was amended to add to Respondent's name:
ou AK.A. Do lese Bros. f a Corporation. uu
Having considered the hearing evidence and the record as a
whole; I find that a preponderance of the substantial, reliable;
and probative evidence establishes the following Findings of Fact
and further findings in the Discussion below~
FINDINGS OF FACT
1.
On January 12, 1991, employee Terry Allen was stringing
cable above an overhead conveyor at Dolese's Hartshorne Rock
Quarry, which is subject to the Act.

1590

2.
To hang the cable, Mr. Allen was hoisted in a manbasket
connected to the load line of an 18 ton Lorain crane.
It was
not otherwise connected to the boom or crane. The crane was
equipped with check valves and flow-restrictors, so that the boom
would not fall if the hydraulic system failed. However, the
crane was not equipped with a safety device, such as an anti-twoblock device, that would prevent the load line from breaking in
a "two block" 1 predicament. Without such a device, if the load
line block were pulled up to the boom block ("two-blocking"), the
load line could break in two, causing the manbasket to fall to
the ground.
3.
The boom was telescopic and could extend to 72 feet.
When Mr. Allen finished one part of the conveyor and the boom was
being extended, the hook block on the load line was pulled up
against the boom block, creating a "two block" predicament. The
pressure on the load line snapped the load line in two.
Mr. Allen and the manbasket immediately fell about 19 feet to the
ground. He sustained serious injuries involving multiple broken
bones in both feet and a broken rib. The line would not have
broken had the crane been equipped with an anti-two-block safety
device.
4.
Mr. Allen, a regular truck driver, was assigned for the
day to help the plant electrician install cables above an
overhead conveyor. Cable was to be strung from a two-story
crusher building to a screening tower, about 23 feet above the
ground.

5o
Mro Allen was wearing a safety belt secured to the
manbasket. He also wore a hard hat and safety protective
footwear.
The crane 1 s load line was a 1/2 inch steel cable breaktested to 25,200 pounds.
6o

The crane operator had an unobstructed line of sight to
the manbasket and was in a position to see whether the load line
was approaching a two-block predicament.
So
When the line holding the manbasket "two-blocked,"
Mr. Allen felt the basket rise a few inches, heard loud squeaking
noises, looked up, and saw the line break. He immediately fell
with the basket.

1

A "two-block" predicament occurs when the load line block
is pulled against the boom block. With an anti-two-block device,
pressure on the load line is stopped immediately. Without such a
device, continued pressure on the line can snap it in two.

1591

9.
MSHA investigated the accident and issued Citation
No. 3628634, charging a violation of 30 C.F.R. § 56.14211(d) as
follows:
A serious accident occurred on January 12, 1991. There
was no anti-two block device with automatic shutdown
capabilities to prevent breaking the load line on the
company No. 122071, Lorain LRT-18U hydraulic crane.
The load hook and block was drawn into the boom-block,
when the boom was extended, breaking the load line. An
employee was working (standing) in a work basket
attached to the load block. He and the basket fell
about 19 feet to the ground causing severe injuries to
both feet and his rib cage. MSHA Policy Letter
No. P90-IV-4 explains that the aforementioned anti-two
block device is necessary to achieve compliance with
30 C.F.R. § 56.14211(d).
DISCUSSION WITH FURTHER FINDINGS

This was a serious accident, involving serious 1n]uries.
Also, the accident could have resulted in death, grave neck or
spinal injuries causing paralysis, or other permanent
disability. The manbasket was suspended from the load line by a
hook, and was not otherwise attached to the boom or crane. As
the boom was extended, the load line block was pulled into the
boom block and the pressure snapped the load line. The manbasket
and Mr. Allen fell nearly twenty feet to the ground.
The Secretary has cited Respondent with a violation of
30 C.F.R. § 56.142ll(d)u which explains a requirement provided in
subsection 56.1421l(a) and other parts of § 56.14211. The
applicable standard here
subsection 56.14211(a) as qualified
by subsection 56.142ll(d).
Section 56.14211 provides:

Blocking equipment in a raised position.
56.14211
(a) Persons shall not work on top of, underu or work
from mobile equipment in a raised position until the
equipment has been blocked or mechanically secured to
prevent it from rolling or falling accidentally.

1592

(b) Persons shall not work on top of, under, or work
from a raised component of mobile equipment until the
component has been blocked or mechanically secured to
prevent accidental lowering. The equipment must also be
blocked or secured to prevent rolling.
(c) A raised component must be secured to prevent
accidental lowering when persons are working on or around
mobile equipment and are exposed to the hazard of accidental
lowering of the component.
(d) Under this section, a raised component of mobile
equipment is considered to be blocked or mechanically
secured if provided with a functional load-locking device or
a device which prevents free and uncontrolled descent.
(e) Blocking or mechanical securing of the raised
component is required during repair or maintenance of
elevated mobile work platforms.
MSHA Program Policy Letter No. P90-IV-2 (June 4, 1990),
provided that a "work platform shall not be suspended from the
load line or whip line when a crane is used to hoist, lower, or
suspend persons." A few months later, this policy was changed by
MSHA Policy Letter P90-IV-4 (September 5, 1990), superseding
Policy Letter P90-IV-2. The new policy permits the practice of
suspending a work basket from the load line of a crane if the
equipment has a safety device such as an "anti-two-block device"
to prevent the load line from breaking in a "two block"
situation. The policy letter also recognizes an alternative
compliance method~ attaching the work basket directly to the
boom (not the load line or whip line) provided the crane has
00 flow restrictions or check valves .
. . [that] will prevent a
free and uncontrolled descent of the boom and attached work
platform
n
0

0

0

0

I

Respondent contends that § 56.14211 does not give clear and
sufficient notice that supporting a manbasket solely by a load
line requires an anti-two-block deviceu and that Policy Letter
P90-IV-4 leaves '8 the clear impression that compliance could be
achieved if a hydraulic crane was being used and the crane had
flow restrictors or check valves."
Respondent thus argues that there was no violation of
30 C.F.R. § 56.14211 because the boom was protected against "free
and uncontrolled descent" and § 56.14211(d) and MSHA Policy
Letter P90-IV-4 do not specify how a manbasket is to be attached
to the boom or crane.

1593

I find that a manbasket is reasonably and logically a
"raised component of mobile equipment" within the meaning of
§ 56.14211(d) 2 and "mobile equipment in a raised position" as
used in§ 56.14211(a). It therefore must be protected against
accidental falling. Policy Letter No. IV-4-2 is a reasonable
application of § 56.14211(d) in prescribing alternative methods
of protecting a manbasket from free and uncontrolled descent,
i.e., (1) attach the manbasket directly to the boom (which is
required to have flow restrictions or check valves to prevent
the boom from falling accidentally) or (2) if the manbasket is
attached to the load line or a whip line, and not attached
directly to the boom, equip the system with a safety device,
such as an anti-two-block device, that will prevent breaking the
load line in a two-block situation.
The Policy Letter is therefore a reasonable interpretation
and application of the combined provisions of §§ 56.1421l{a) and
(d) and, being published by the promulgating agency, is entitled
to deference.
Respondent violated § 56.14211(a) as qualified by
56.14211(d) by suspending a manbasket solely from a load line
without providing a safety device to prevent the line from
breaking in a "two block" situation.
§

II
Respondent contends that § 56.14211(d) and Policy Letter
P90-IV-4 are unconstitutional as being "sufficiently vague to
allow for official arbitrariness and discrimination in their
~nforcementouu
I find that §§ 56.14211(a) and (d) are a
~easonable and clear safety standard requiring raised platforms;
including manbasketsu to be protected against free and
uncontrolled descent (accidental falling). Policy Letter
P90-IV-4 is a reasonable interpretation and application of
§ 56.14211(d)v showing alternative ways in which an operator may
comply with § 56ol4211 when using a crane to hoist a manbasketo
Neither the regulation nor the Pol
Letter
unconstitutionally vague.
III

Respondent contends that the Secretary did not comply with
n1s own regulations in proposing a special assessment against
Respondent.
2 Under§

56.14211(d), a "raised component of mobile
equipment" is considered in compliance with § 56.14211 if
protected by a "load-locking device or a device which prevents
free and uncontrolled descent."

1594

The Act establishes a two-step civil penalty system. The
Secretary proposes and the Commission assesses all civil
penalties under the Act. 30 u.s.c. §§ 815(a) and (3) and
§§ 820(a) and (i).
When the Secretary issues a citation or
withdrawal order to a mine operator, the Secretary must notify
the operator of a proposed civil penalty for the violation cited.
If the operator does not contest the proposed penalty, it becomes
a final order of the Commission, not subject to review by any
court or agency. Id.
If the operator contests the proposed penalty, the Secretary
must file a petition for assessment of penalty with the
Commission. The Commission then affords an opportunity for a
hearing, subject to the due process requirements of the
Administrative Procedure Act, and thereafter issues an order,
based on findings of fact, affirming, modifying, or vacating the
Secretary's citation, order, or-proposed penalty or "directing
other appropriate relief. ui Id.

Section llO(i) of the Act provides: "The Commission shall
have authority to assess all civil penalties provided in this
[Act] .ua 30 u.s.c. § 820(i). Penalty cases are de novo before the
Commission, which is governed only by the criteria in § llO(i) of
the Act. It may assess a penalty higher or lower than the
penalty proposed by the Secretary. Once filed before the
Commission, a penalty case may not be settled without approval of
the Commission or presiding judge.
The Secretaryu through MSHAv has promulgated regulations for
calculating
penalties on the basis of a formula
derived from the
,.
§ llO(i) of the Act.
See~ 30 C.P.R.
100
Under § 100.5 0 MSHA may waive its regular assessment formula
it ndetermines that conditions surrounding the
violation t-.rarrant. ~,
Rssessment. 00
(§ 100.3)

In Drummond Company 1 lnco (uuoru:m:mond I 11 ) u 14 FMSHRC 661
(1992)u the Commission held that it has jurisdiction in a civil
penalty case to review
question whether the Secretary has
complied with
Part 100 regulations in proposing a civil
penaltyo If
finds that a proposed civil penalty is
inconsistent with the Part 100 regulations, it may remand the
proposed penalty to the Secretary for recalculation.

1595

In this case, after reinvestigating the accident MSHA
elected to waive the regular formula in § 100.3 and to propose a
special assessment under § 100.5. In its Narrative Findings for
a Special Assessment, MSHA found that there was a violation of
the cited safety standard, that the gravity of the violation was
serious, and that the employee suffered severe injuries because
of the safety violation. It proposes a
civil penalty of $5,000.00.
Section 100.5 provides that certain categories of violation
may be considered for special assessment in MSHA's proposal of a
civil penalty. one of these is: "Violations involving fatalities
and serious injuries. 91 § 100.5(a).
Respondent contends that
MSHA 1 s special assessment is not appropriate because "the
accident did not involve a fatality, nor did it involve a serious
injury likely to result in a fatality." I find that MSHA met the
requirements of§ 100.5(a).
The employee was in a metal work
basket that suddenly fell 19.feet to the ground, causing multiple
fractures in both feet and a broken rib. These were serious
1nJuries. Also, mental anguish should be considered when an
employee is jerked by a manbasket, hears threatening sounds,
looks up, and sees his one support (the cable) snap in two, and
then immediately crashes to the ground. It is clear from the
nature of this accident that the employee could have been killed
or suffered grave neck or spinal injuries causing permanent
disabilities. Finally, I observe that it was only the height of
the particular job that limited the fall to about 20 feet. The
working height could have been 50 or 60 feet, depending on the
job. Respondent 0 s practice of suspending a manbasket solely from
a load line without anti=two-block protection subjected workers
~o
of
or severe disabilities.
contends that a special assessment
because Respondent reasonably believed that it
was complying with § 56.14211, and did not know that MSHA
interpreted that section as requiring an anti-two-block device
when a manbasket
suspended on a load line. However~ Policy
)':1 90<Cv~t!,
operators on notice that MSHA interpreted
§ 56.14211 as requiring a safety device, such as an anti-twoblock device 9 to prevent the load line from breaking in a case
such as
instant case" I find that Respondent had actual or
constructive 1cnowledge
Policy Letter P90-IV-4. Apart from
such knowledgeu Respondent was put on notice by §§ 56.142ll(a)
and (d) that it must provide a load-locking device or other
safety device to prevent Vifree and uncontrolled" descent
(accidental.falling) of any "raised component of mobile
equipment. 01 This reasonably and clearly applied to manbaskets
supported solely by a load line on a crane.

1596

Considering all of the criteria for a civil penalty in
llO(i) of the Act, I find that a penalty of $8,000.00 is
appropriate for this violation. In assessing a penalty higher
than the Secretary's proposal, I have considered the high gravity
of this violation. "Two blocking" predicaments are highly
hazardous, foreseeable, and can be observed by the crane
operator. They are also mechanically preventable, by installing
an effective safety device to prevent the line from breaking.
Respondent's position that it was permitted by law to suspend a
manbasket solely on a load line without a safety device to
prevent the line from snapping in two, reflects a serious
disregard for employee safety and the purpose of § 56.14211,
which requires that "equipment in a raised position •
[must
be] o • • mechanically secured to prevent it from • • • falling
accidentally." §56.14211(a). The Secretary also put Respondent
on notice of this requirement in Policy Letter P90-IV-4, which
plainly states that compliance can be achieved by: "[U]se of an
anti-two-block device with automatic shutdown capabilities that
will prevent breaking of the load or whip line in a two-block
condition. * * *"
§

o

•

CONCLUSIONS OF LAW

1.

The judge has jurisdiction.

2o
Respondent violated 30 C.F.R. § 56.14211(a), as
qualified by§ 56.14211(d), by suspending a manbasket solely from
the load line of a crane without a safety device to prevent the
line from breaking in a "two-block" predicament.
ORDER
m!EREFORE

1.

dl:~

X~

ORDERED

that~

Citation No. 3628634 is AFFIRMED.
Respondent shall pay a civil penalty of $8pOOO.OO
30 days of the date of-this Decision. -

~~"1-~~~
William Fauver
Administrative Law Judge

1597

Distribution:
Ernest A. Burford, Esq., Office of the Solicitor, u.s. Department
of Labor, Suite 501, 525 Griffin Street, Dallas, Texas 75203
(Certified Mail)
Peter T. Van Dyke, Esq., Lytle, Soule & Curlee, Suite 1200,
119 North Robinson, Oklahoma City, Oklahoma 73102 (Certified
Mail)
jefw

1598

FEDERAL MINE SAFETY AND HEAL"fH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1 Oth FlOOR
5203 LEESBURG PIKE
FAllS CHURCH, VIRGINIA 22041

AUG

91993
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 92-854
A.C. No. 36-04281-03801

v.

Dilworth Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
~ '".

"

Appearances:

Theresa c. Timlin, Esquire, Office of the
Solicitor, u.s. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner;
Daniel Rogers, Esquire, Consolidation Coal
Company~ Pittsburgh, Pennsylvania, for
Respondent

Before:

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105(d) of
the Federal Mine Safety and Health Act of 1977u 30 U.S.C. § 801,
seg. r t.he 00 Ac·tG9 charging ·the Consolidation Coal Company
;:consolj
on.e
of the mandatory standard at
The citation at bar, No. 3699508, alleges a "significant
and substantial" violation of the noted standard and, as amended,
charges as follows
550 Volt, . c.
wire was not supported
on well-insulated insulators and was in contact
with combustible material in that the insulators
led to insulate the trolley wire 1 s electrical
current from ·the mine roof. The insulators that
were installed for the J Mains Haulage at Mouth
1-D u just outby 73~~ crosscut and just inby
75 crosscut failed allowing heat and sparks to
track across the insulating material and to start
heating the area where the hanger was supported.
The hanger at 1-D had a small flame, at 73" crosscut the mine roof was heated up and a lot of smoke
put out and at 75 crosscut there were sparks
observed. This citation is issued in conjunction
with 107-A order No. 3699507.
1599

The cited standard reads as follows:
All power wires (except trailing cables
on mobile equipment, specially designed cable
conducting high-voltage power to underground
rectifying equipment or transformers, or bare
or insulated ground and return wires) shall be
supported on well-insulated insulators and shall
not contact combustible material, roof, or ribs.
The essential facts in this case are not in dispute. On
July 2, 1992, an inspection party consisting of MSHA Inspector
Ron Hixson, Union Representative Marlon Whoolery, and Company
Representative Pat Wise found "hot" trolley wire hangers at
three locations in the Dilworth Mine. The 600-volt DC trolley
wire at the Dilworth Mine is suspended from the mine roof by
pipes inserted into the roof upon which insulated hangers are
hung with "bull-dog" clamps. The trolley wires are attached
to the hangers, which are designed to act as insulators (see
Government Exhibit Nos. 1 and 2). These hangers have been
installed approximately every ten feet for the five miles of
trolley line throughout the mine.
As the inspection party approached J Mains air shaft
6 area they saw a one to three inch flame at the base of one
of the hangers. Whoolery observed that the yellow plastic
covering the trolley wire was on fire. The trolley wire was
immediately deenergized and the hanger replaced. According
to Whoolery, who actually removed and replaced the hanger,
the insulation inside the hanger had completely burned out.
The inspection party found a second hot hanger at
73=1/2 crosscut. Hixson first smelled smoke some 500 to
560 feet before observing black billowing smoke coming from
the mine roof above the hanger. The hot area of mine roof,
about 2 feet in diameter, was picked-out and the area cooled
with water before the old hanger was replaced. Whoolery,
who also removed this hangeru observed that the insulation
inside had become chalky white.
third hot hanger was found at the No. 75 crosscut.
According to Hixson the hanger was arcing with electrical
currentv like static electricityu along .the base of the hanger.
The power was again removed from the trolley wire and this
insulator was also replaced. According to Whoolery 6 the
insulated hanger was not in itself involved, but rather there
was arcing from the bull-dog across the dirigo. Accordingly,
Whoolery replaced only the dirigo.
According to Inspector Hixson, the hangers cited in
this case were not performing as insulators. Carol Boring,
electrical engineer for the MSHA Division of Safety, agreed,

1600

concluding that the first two hangers cited in this case had
already failed as insulators when they were discovered. She
defined the term "insulator" as a material that provides
protection by separating conducting surfaces by a dielectric
substance or air space permanently offering a high resistance to
the passage of current and to disruptive discharge through the
substance of space (See Government Exhibit No. 4). With respect
to the third cited hanger, Ms. Boring opined that the arcing
across the dirigo showed initiation of a breakdown of both
insulators. She concluded, therefore, that in all three
instances the hanger systems were not providing insulation and
thus were not "insulators" and were in violation of the cited
standard.
The Secretary argues that there was a violation of the cited
standard under either of two theories. First, that while there
was no physical contact between the energized power wires and the
combustible roof there was electrical "contact" in violation of
the cited standard when electrical current tracked across the
hangers and, second, that the 'hangers, when cited, were not in
fact "insulators" as required by the cited standard.
In a recent decision involving the same standard at
issue herein, Judge Weisberger, in Consolidation Coal Company
Vo Secretary, 15 FMSHRC 392 (March 1, 1993), cogently analyzed
the relevant law as follows:
Section 85.516 supra requires that wires such
as the trolley wires in issue shall be supported
on 'well-insulated insulators and shall not contact
combustible materials roof or ribs'. Hence, the
plain language of Section 75.516 supra indicates
that this Section is violated only ifu (1) the insulators are not uwell-insulatedu or (2) the trolley
wires contact combustible materialu roofu or ribs.
lo

Well-insulated insulators

Section 75o516-1 defines well insulated insulators as meaning uwell-installed insulatorsno At
bestp the evidence herein tends to establish that
the insulators did not serve their intended purpose
due perhaps to moisture. However, there is a lack
of evidence to base a conclusion that the insulators
were not 1 well-installed 9 • There is no evidence in
the record to base a conclusion as to the manner
in which the insulators were installed. Indeed,
the parties stipulated that the insulators at issue
were 'well installed•. (Tr. 115) Thus, I conclude
that the trolley wires were well insulated.

1601

2.

Trolley wires in contact with combustible
material

Also, Section 75.516 supra is violated if the
trolley wire comes in 'contact' with combustible
material, roof or ribs. Section 75.516 supra
contains the identical language that was set forth
in Section 305(k) supra of the 1969 Act and which
was incorporated in the 1977 Act. Neither the
1969 Act nor the regulations clarify as to whether
section 305(k) (Section 75.516 supra) intended to
prohibit physical or electrical contact between
trolley wire and combustible material. However,
enlightenment as to as to Congressional intent is
found in the legislative history of the 9169 Act.
The Senate Report, in its section by section analysis,
indicates that section 206(g} of the Senate Bill,
whose language was reiterated in Section 305(k) of
the 1969 Act, requires that all power conductors be
'not allowed to touch, ·combustible material, roof, or
ribs. 0 (Legislative History, supra at 193). To the
same affect, the House Report in its analysis of
Section 305(1) of the House Bill whose language was
reiterated in Section 305(k) of the 1969 Act, states
that Section 305(1) requires that all underground
power conductors be 1 not allowed to touch combustible
materials, roof, or ribs.' (Legislative History,
supra, at 1079). Thus, I conclude that Congress
intended that trolley wires not touch combustible
material i.e. not come in physical contact with these
materials.
I agree with Judge Weisberger's analysis that the Congress
intended that trolley wires not touch combustible materials
the sense that they not come in physical contact with these
materials. I therefore reject the Secretary's first theory of a
violation. I note that the Secretary did not seek review of
Judge Weisbergerus decision.
In regard to the Secretary's alternate theory of a violation
note that rather than amend the convoluted definition in
30 C.F.R. § 75.516-1 that "well-insulated" insulators does not
mean what it says u but rather means 11 well installedn insulators r
the Secretaryu with creditable creativity, now argues that the
cited hangers, though admittedly obtained and originally
installed as 11 insulators, Gl were not in fact "insulators" at all
because they failed to perform the insulating function of
"insulators.n Indeed, there is no dispute with the expert
testimony of MSHA Electrical Engineer Carol Boring that the
cited hangers had in fact become conductors of electrical
current and were no longer performing the function of insulators.
Since, according to the Secretary's regulations, "well insulated"

1602

does not mean what it says but rather means "well installed," it
is not redundant to read Section 75.516 as requiring well
installed "insulators" that in fact are sufficiently well
insulated to be considered "insulators." Since the hangers cited
herein were in fact not performing the function of "insulators"
they were not in fact "insulators" and accordingly did not meet
the requirements of the cited standard.
The facts clearly support the Secretary's undisputed
finding that the violations were "significant and substantial"
and of high gravity. I accept the inspector's assessment of
low negligence under the circumstances. There is no dispute
that consol had been running frequent infra-red scans of the
hangers throughout the Dilworth Mine and that any of the
hangers could fail at any time, particularly in this especially
damp mine. Considering all available evidence under the
Section 110(i) criteria, I find that the Secretary's proposed
penalty of $240 is indeed appropriate.
'ORDER

Citation No. 3699508 is AFFIRMED as amended and the
consolidation Coal Company is directed to pay a civi1 penalty for
the violation charged therein of $24 within 30 days/of the dat
of this decision.

Distrib~iono

oft~

J

,

Theresa c. Timlin, Esq., Office
Solicitor: u.s. Department
of Laboru Room 14480 Gateway Building, 3535 Market Street 1
ladelphia 1 PA 19104 {Certified Mail)
Daniel Rogersu Esq. 9 Consolidation Coal Company, Consol Plaza,
1800 Washington Road 1 Pittsburgh, PA 15241-1421
(Certified Mail)
Robert H. Stropp, Esq.u United Mine Workers of America,
900 Fifteenth Street, N.W., Washington, D.C. 20005
(Certified Mail)
/lh

1603

FEDERAL KXNE SAFETY AND HEALTH REVXBW COMXXSSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

91993

AUG
LLOYD A. PARTIN,
Complainant

DISCRIMINATION PROCEEDING

.
0

v.
AMAX

Docket No. WEST 93-198-D
DENV CD 92-14

COAL COMPANYH
Respondent
ORDER OF DXSKISSAL

Before~

Judge Lasher

By letter mistakenly da.ted April 16, 1993 (the date should
be July 16, 1993), counsel for Complainant, in confirming a telephone conversation held among him, Respondent's counsel, and me
on July 13, 1993, had reiterated that a settlement has been
reached between the parties in this matter. Complainant's attarindicates in the subject correspondence that such "constitutes
Mro Partinvs official request that his claims be withdrawn."
§

Pursuant to the Commission Procedural Rule 11 (29 C.F.R.
2700.11) a party may withdraw such pleading at any stage of a

proceeding with the approval of the Commission or a Judge. Since
it appears the withdrawal is voluntary and based on appropriate
grounds 1 approval is here GRANTED. Accordingly, this proceeding
is ~ISMISSED WITH PREJUDICE.

-9;?J~,.ff~'- t

.:1~ ~xde-t fj ,

Michael A. Lasher, Jr.
Administrative Law Judge
Distribution~

Certified Mail

Stephen H. Kline, Esq., KLINE & JENKINS, Equality State Bank
Building, 19th and Pioneer, Suite 306, P.O. Box 1938, Cheyenne,
WY 82003

Byron L. Myers, Esq., ICE, MILLER, DONADIO & Ryan, One American
Square, Box 82001, Indianapolis, IN 46282-0002 {Certified Mail)
ek

1604

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 91993
DIABLO COAL COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. WEVA 93-307-R
citation No. 4001352; 4/9/93

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

.
0

Q

0

Docket No. WEVA 93-308-R
Order No. 4001353; 4/9/93
Docket No. WEVA 93-309-R
Order No. 4001354; 4/9/93

.

Docket No. WEVA 93-310-R
Order No. 4001355; 4/9/93

:

Docket No. WEVA 93-311-R
citation No. 4001356; 4/9/93

:

Mine No. 2

DISMISSAL OF PROCEEDINGS

on July 23, 1993, the Secretary served upon the Respondent
and the Commission a motion to dismiss asserting the subject
Notice of Contest was not timely filed. The motion states the
contested citations and orders were issued to the operator on
April 9 0 1993 9 and that the Notice of Contest was served upon the
Secretary and the Commission on May 12f 1993"
As the Secretary notesu Commission Procedural Rule 20(1)
requires the operator to file a contest of a citation or order
issued under section 104 "within thirty (3) days of receipt by
the operator of the contested citation, order 9 or modification."
30 C.F.R. § 2700.20(b).
Commission Procedural Rule 5(d) states~
00
When filing is by mailu filing
complete upon mailing
• °0
29 C.F.R. § 2700.5(d). ThUS 1 in this instance 9 the operator
filed its contest thirty-three (33) days after the contested
orders and citations were received by the operatoro
0

The Secretary argues that late filing of the contest has
deprived the Commission of jurisdiction and that these matters
must therefore be dismissed. The Secretary quotes Chief
Administrative Law Judge Merlin's statement that "a long line of
decisions going back to the Interior Board of Mine Operation
Appeals has held that cases contesting the issuance of a citation
must be brought within the statutory prescribed 30 days or be
dismissed." Prestige Coal Co., 13 FMSHRC 93, 94-95, citing to
Freeman Coal Mining Corporation, 1 MSHRC 1001 (1970);

1605

Consolidation Coal Co., 1 MSHRC 1029 (1972}v Island Creek Coal
co. v. Mine Workers, 1 MSHRC 1029 (1979); aff'd by the
commission, 1 FMSHRC 989 (August 1979); Amax Chemical Corp., 4
FMSHRC 1161 (June 1982); Rivco Dredging Corp., 10 FMSHRC 889
(July 1988) Peabody Coal Co., 11 FMSHRC 2068 (October 1989); Big
Horn Calcium Company, 12 FMSHRC, 2068 (October 1989); Big Horn
Calcium Company, 12 FMSHRC 463 (March 1990); Energy Fuels Mining
Company, 12 FMSHRC 1484 {July 1990).
The Secretary correctly has stated the law. Even though
Diablo Coal Company was but three (3) days out-of-time in filing
its Notice of Contest, it's late filing has deprived me of
jurisdiction and I must grant the Secretaryis motion. 1
Although, the Secretary 0 s motion is granted, the issues
Diablo Coal Company seeks to raise may be litigated in the civil
penalty proceedings when the Secretary proposed civil penalty
assessments for the violations alleged.
ACCORDINGLY, it is ORDERED that these cases be, and are
hereby DISMISSED and the hearing previously scheduled in these
matters is CANCELED.

~df~~
Administrative Law Judge
(703) 756-5232

Distribution~

Pa'tr ick DePace u JEsq. u Off ice
the Solici t.or u U oso Department of
Labor, 4015 Wilson Boulevardu Suite 516u Arlington, VA 22203
(Certified Mail)
Donna Co Kelly Smith, Heenan l£r Althenu 1380 One Valley Squareu
oO. IBex 2549v Charlestonu WV 25329
{Certified Mail)
spy

The Secretary further supports his motion by arguing the
operator's use of first class mail rather than registered or certified mail,
return receipt requested to file its Notice of Contest likewise deprives me of
jurisdiction. Citing to 29 C.F.R. S 2700.7(c). I need not and do not base
the dismissal of these matters upon this part of the Secretary's argument.

1606

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

2CXY.h

AUG 1 U 1993
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 92-802-M
A. C. No. 45-02961-05553
cannon Mine

v.
ASAMERA MINERAL (US), INC.,
Respondent

0

0

ORDER ACCEPTING RESPONSE
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

This case is before me upon a petition for assessment of a
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977. On April 26, 1993, the parties filed a
motion to approve settlement of the one violation involved in
this case. The parties sought approval of a reduction in the
penalty amount from the original assessment of $100 to $50.
On June 11, 1993, an Order Disapproving Settlement and Order to
Submit Information was issued directing the parties to file
additional information to support their motion. on July 12,
1993 the Solicitor submitted a letter to the undersigned
accompanied by a detailed and comprehensive letter dated
June 24 9 1993 from the operator. Both letters further explain
the circumstances of the cited violation.
The Solicitor points out that, as noted in the Disapproval
of Settlement, the inspector's initial finding of high negligence
was changed to ordinary negligence by the narrative findings of
the Special Assessment.
Information contained in the operator's
letter justifies a finding of ordinary negligence. Thus, with
respect to the alteration of the accident scene the operator
advises that it contacted MSHA prior to altering the site and was
given approval to move the piece of equipment in question from
the accident scene. The operator's manager made a contemporaneous notation of this approval in his diary, a copy of which
notation was attached to the letter to the Solicitor. In addition, the operator's assertion that there was only minimal change
to the accident site, is uncontradicted. The Solicitor represents that the operator's contemplated testimony will undermine
the credibility of the investigative report and that under the
circumstances the recommended reduction in penalty amount is
appropriate.
In view of the explanations now in the record, I
agree that negligence and gravity are less than originally
1607

thought. Therefore, I accept the parties' representations and I
conclude that the settlement
appropriate under the six criteria set forth in section 110(i) of the Act.
In light of the foregoing, it is ORDERED that the information filed July 12 is ACCEPTED as a response to the
June 11 order.
It is further ORDERED that the recommended settlement be
APPROVED and the operator PAY $50 within 30 days of the date of
this decision.

Paul Merlin
Chief Administrative Law Judge

Distribution:
Douglas White, Esq., Counsel, Trial Litigation, Office of the
Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
(Certified Mail)
Robert A, Friel, Esq, Office of the Solicitor, U. S. Department
1111 Third Avenue! Suite 945, Seattle, WA
98101-3212
(Certi
Ma )
Mr. Melvin J. Wattula, Manager, Asamera Minerals (US), Inc., P.O.
Box 398, Wenatchee, WA 98801
(Certified Mail)
jgl

1608

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

20006

A.u:![.:() -'\J. 0 1993
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 93-105-M
A. C. No. 45-02961-05557
Cannon Mine

v.
ASAMERA MINERAL (US), INC.,
Respondent

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

An Order Disapproving Settlement and Order to Submit
Information was issued in this matter on June 11 1 1993.
The violation was cited for failure to report a methane
ignition. The recommended settlement is $20. The Solicitor and
the operator have submitted additional information to support the
settlement. According to this new information, the operator was
unaware of the ignition at the time and as soon as it became
aware of itu disciplinary action was taken against the supervisor
who failed to report it. These factors decrease negligence.
In
addit~on, there do not appear to be any factors which would
render this a significant and substantial violation under
criteria adopted by the Commission. Consolidation Coal Company,
11 FMSHRC 1935 (October 1989). The parties are advised however,
that reporting violations may be serious depending upon the
circumstances.
In light of the foregoingu it is ORDERED that a settlement
in the amount of $20 be Approved.
It is further ORDERED that the operator PAY $20 within 30
days of the date of this decision.

Paul Merlin
Chief Administrative Law Judge

1609

Distribution:
Douglas White, Esq., Counsel, Trial Litigation, Office of the
Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
(Certified Mail)
Robert A. Friel, Esq., Office of the Solicitor, U. S. Department
of Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212
(Certified Mail)
Mr. Melvin J. Wattula, Manager, Asamera Minerals (US), Inc.,
P. o. Box 398, Wenatchee, WA 98801 (Certified Mail)
/gl

1610

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 1 01993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 92-345-M
A.C. No. 20-02621-05505

v.

Docket No. LAKE 92-357-M
A.C. No. 20-02621-05507

CARL SCHLEGEL, INC.,
Respondent

.

Docket No. LAKE 92-389-M
A.C. No. 20-02621-05506

.: Allis Chalmers Plant No. 1
: Docket No. LAKE 93-77-M
A.C. No. 20-02833-05504
Docket No. LAKE 93-78-M
A.C. No. 20-02833-05505
Howe Road Plant
DECISION
Appearances~

Rafael Alvarez, Esq.u Office of the Solicitor,
U.So Department of Laboru Chicago, Illinois, for
Petitioner9
James L. Winckler, Esq., Moran, Bladen and
Winckler, P.C., Lansing, Michigan, for Respondent.

Before~

Judge Amchan

These cases are before me upon petitions for civil penalty
filed by the Secretary pursuant to section 105(d} of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801, et. seg.,
for eight alleged violations of mine safety standards. This
matter was heard in Lansing, Michigan on June 8, 1993.
After considering the record before me, I have assessed
civil penalties of $1,297 1 • Two of the citations allege
violations due to Respondent's unwarrantable failure to comply
with a mandatory safety standard pursuant to section 104(d} (1} of
1

A total of $1,648 in penalties was proposed by the
Secretary of Labor.
1611

the Act. I have affirmed this allegation with respect to one of
the violations but not the other. several violations were
alleged to be "significant and substantial" and, while I have
affirmed that characterization with respect to some violations, I
have vacated it with regard to others.
The penalties at issue are the result of citations issued by
MSHA Inspector Gerald Holeman during two inspections of sites at
which Respondent was working. The first inspection was conducted
in Shiawassee County, Michigan, where Respondent had set up a
portable crushing plant to produce gravel (Jt. Exhibit 1).
Four
of the citations allege violations of 30 C.F.R. § 56.14107(a),
which provides: "Moving machine parts shall be guarded to
protect persons from contacting gears, sprockets, chains, drive,
head, tail and takeup pulleys, flywheels, couplings, shafts, fan
blades, and similar moving parts that can cause injury."
Citation No. 3887301 was issued for the absence of a guard
on the back, top and right side of the self-cleaning tail pulley
to the crusher feed conveyor,-and the absence of a guard on the
drive belts and headpulley of the same conveyor {Tr. 17-30). A
$50 penalty was proposed for this violation. Respondent does not
contest the fact that these areas had no guard until after the
citation was issued. However, it contends that there was no
hazard to employees because the sides of the pulleys were
protected by solid steel components of the machinery and the ends
were protected by cross-bracing (Tr. 129-133). Similarly the
company contends that two !-beams blocked access to the top of
the pulleys (Tr. 132).
Respondent disagrees with Inspector Holeman's opinion that
employees might contact the unguarded pulleys when shoveling
debris that might fall underneath the pulleys or when lubricating
t:he pulleys. Respondentus superintendent~ John Warvel,
convincingly testified that Carl Schlegel, Inc., by digging a
hole next to its crusher for spillage, had eliminated any need
for employees to get near the pulleys to shovel debris
(Tr. 130-131). Howeveru I am not persuaded that potential
exposure while lubricating the machinery had been eliminated
sufficiently t.o obviate the need for a guard.
Although Warvel testified that all lubrication is done by
the company while its machinery is shutdown (Tr. 130-131), he did
not convince me that this must always be the case. Given the
unpredictability of human behavior, it is quite possible that an
employee might attempt to save time and lubricate the machinery
while it was operating, rather than shutting the equipment down;
2This

portable crushing plant was manufactured by Allis
Chalmers Company, hence the references to "the Allis Chalmers
plant" throughout the record.

1612

therefore, I credit Inspector Holeman's testimony and find
sufficient exposure to the pulleys to affirm the citation. See
Thompson Brothers Coal Company. Inc., 6 FMSHRC 2094 (September
1984).
Citation No. 3887302 was issued for the absence of a guard
for the self-cleaning tail pulley on the crusher rlant belt and
the head pulley of the same conveyor (Tr. 30-36).
This
violation was cited as a "significant and substantial" violation
because Inspector Holeman believed that an injury was reasonably
likely in that the unguarded hazardous areas on this conveyor
were more accessible to employees than in other locations
(Tr. 40-41). The unguarded self-cleaning tail pulley jutted out
1 foot beyond the equipment above it (Tr. 39, 135-136).
Respondent's Superintendent Warvel conceded that the tail
pulley is this location needed a guard. In fact, he testified
that the pulley had been guarded when used in another location a
few days prior to the inspection. He had instructed his foreman,
Roger Howard, to install a better guard (Tr. 135-136, 153-154).
The company contends that this citation and the other
guarding violations should be vacated because inspector Holeman
did not observe the machinery operate without proper guarding
(Tr. 13, 104-105). The plant was shutdown the day of the
inspection due to complaints from neighboring residents regarding
dust. However, Holeman testified that respondent's foreman,
Roger Howard, had told him that the equipment had been operated
the day before the inspection (Tr. 15, 123).
I find that
Holeman was justified in inferring that the equipment had been
run without proper guarding and I draw the same inference.
Superintendent Warvel testified that he assumed the guard
had been on the equipment at this location the day before when
the company had performed 01 test runs 19 of its machinery
(Tr. 153-154) 4 • However, Mr. Warvel was not present at this
worksite on the day in question (Tr. 155), and, thus, has no
first-hand knowledge on this issue. I, therefore, credit
Mr. Holeman°s testimony, which is based upon a reasonable
inference drawn from an admission from Respondentgs foreman.
This citation was issued as a nsignificant and substantial"
violation. Pursuant to Commission precedent, the Secretary, in
3

Each citation for lack of guarding pertains to a different
conveyor. Failure to guard different locations on the same
conveyor were grouped into one citation.
~. Warvel's testimony on this issue is somewhat
contradictory. He also stated that he did not know if the
equipment had been operated without a guard (Tr. 136}.

1613

order to establish a "significant and substantial" violation,
must prove: (1) the underlying violation of a mandatory safety
standard; (2} a discrete safety hazard 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 Mathies Coal Company, 6 FMSHRC 1 (January 1984).
The only one of the above criteria at issue here is the
likelihood of injury. There is no question that if an employee
contacts an unguarded belt or pulley it is reasonably likely that
he or she will sustain serious injury. Inspector Holeman
differentiated this citation from the other guarding citations on
the basis that the unguarded tail pulley was a foot outside of
the superstructure of the equipment and, therefore, presented an
opportunity for accidental contact without any unusual behavior
on the part of an employee (Tr. 40-41). I find that this
distinction is sufficient to warrant the conclusion that injury
was reasonably likely and I find this citation to be a
"significant and substantial", ,violation. 5
Citation No. 3887303 alleges that the left side of the selfcleaning pulley to the crusher transfer conveyor was unguarded
(Tr. 42-47). Respondent's superintendent, John Warvel, conceded
that the area required a guard (Tr. 136-137). Inspector Holeman
testified that injury was unlikely in that it would require an
affirmative act to contact the unguarded pulley (Tr. 46). I
affirm this citation.
Citation No. 3887304 alleges that the top of the selfcleaning tail pulley to the dust conveyor was unguarded
(Tr. 49-53). An employee would have to get behind the bracing
supporting the feed hopper to contact this pulley (Tr. 50).
Inspector Holeman testified that there is a possibility that this
5

I declined to allow Respondent to introduce evidence that
other firms in its industry had received citations for similar or
identical violationsv but that none of these citations had been
characterized as ~significant and substantial" (Tr. 71- 76). I
find such evidence irrelevant to the issues before me. Just as
the Secretary is not estopped from issuing a citation because he
has failed to cite an identical condition previously, he is not
estopped from characterizing a violation as "significant and
substantial" because he has not done so in the past. See
Lancashire Coal Co., 12 FMSHRC 272 (ALJ Koutras, February 1990),
and the cases cited therein.
Moreover, to allow such testimony would oblige me to
determine whether the prior violations were distinguishable from
the instant case. The appropriate manner to decide the
"significant and substantial" issue in this case is to consider
the facts of this case, rather than the facts of other cases.

1614

could occur (Tr. 51-52). Although injury in this instance is
clearly unlikely, it is sufficiently possible to warrant
affirmation of the citation--given the possibility that an
employee might try to lubricate the equipment or check the
bearings while the equipment was operating.
The Front-End Loader
During his inspection of May 21, 1992, Inspector Holeman
observed Foreman Roger Howard and another employee standing in
front of an unoccupied front end loader (Tr. 53-59). The bucket
of the loader was raised approximately one and a half feet above
the ground and the two men were using it as a bench on which to
work on a piece of metal (Tr. 54). Holeman issued citation
No. 3887305 on the basis of these observations alleging a
violation of 30 C.F.R. § 56.14206(b). The standard requires
that: "When mobile equipment is unattended or not in use,
dippers, buckets and scraper blades shall be lowered to the
ground . • • • "
This citation included a notation that the violation met the
criteria set forth in section 104(d) (1) of the Act, implying that
the violation was significant and substantial and was due to the
operator's unwarrantable failure to comply with the standard
(Exhibit P-5, block 12). Inspector Holeman opined that the
bucket could suddenly drop and seriously injure an employee's
foot (Tr. 55, 111-113). On balance, I find that an injury was
not reasonably likely in that I am not persuaded that a sudden
drop of the bucket was likely. Moreover, the only evidence
supporting the finding of an unwarrantable failure to comply, or
a high degree of negligence, as testified to by the inspector
(Tro 59-6l)q is Foreman Howard's statement to the inspector that
knew he shouldnut have been using the bucket in this manner.
The fact that Foreman Howard recognized a hazard after
having it called to his attention does not establish an
unwarrantable failure to comply with the regulation or a high
degree of negligence. There is no evidence that he knew prior to
conversation with the inspector that this condition either
violated the law or presented a danger. The record, at best,
supports a finding of ordinary negligence which is insufficient
for a finding of 09 unwarrantable failure". Emery Mining Corp.,
9 FMSHRC 1997 (December 1987); Youghiogheny & Ohio Coal Co.,
FMSHRC 2007 (December 1987). This citation is affirmed as a
"non significant and substantial" violation of section 104(a).
Inspector Holeman also determined that the parking brake of
the front-end loader being used by the employees in reference to
Citation No. 3887305 was not fully effective (Tr. 62-65). On
May 4, 1992, Foreman Howard had reported to higher management
that the parking brake was not working properly (Exh. P-7).
It
had not been repaired between May 4 and the May 21 inspection

1615

(Tr. 69, 142-143). When Mr. Holeman observed the loader it was
parked on relatively level ground, straddling a hump (Tr. 76).
The inspector asked that the parking brake be tested on a slope
that he described as a 3 percent grade (Tr. 63-64). The brake
failed to hold the vehicle, which rolled down the ramp (Tr. 64).
Mr. Holeman issued Order No. 3887306 alleging a violation of
30 C.F.R. § 56.14101(a) (2), which provides: "If equipped on
self-propelled mobile equipment, parking brakes shall be capable
of holding the equipment with its typical load on the maximum
grade it travels."
Mr. Holeman further found that the violation was due to the
Respondent's unwarrantable failure to comply with the standard
and that it was "significant and substantial" 6 • The
unwarrantable failure finding was based on the fact that the
defective condition of the parking brake had been reported to
Respondent and that employees had been allowed to use the loader
even though the defect had not been corrected.
Respondent's superintendent, Warvel, conceded that the
parking brake had lost some, but not all of its effectiveness,
due to grease on its linings (Tr. 141). He testified that he
determined that the grade on which Inspector Holeman had the
brake tested was 45 degrees, rather than 3 degrees (Tr. 141). He
also testified that the front-end loader used the inclined
roadway on which the brake was tested once or twice daily and
that it was capable of holding in the areas in which Carl
Schlegel employees were working (Tr. 140-143).
I find that the violation was both significant and
substantial and due to Respondent's unwarrantable failure to
comply with the standard. It is not necessary to resolve the
conflict in testimony with regard to the slope of the ramp on
which the brake was tested. 7 What is important is that
Respondent was on notice that the parking brake was defective and
continued to use it without objectively determining how much of
the brake's effectiveness was lost.
I find that once Respondent
knew the brake was defective its conduct was "aggravated" in that
was taking a grave risk with the lives of its employees in
6 Inspector

Holemanis testimony is not couched in terms of
unwarrantable failure"; however u Inspector Holeman clearly
concluded that this violation met the criteria of "unwarrantable
failurei 1 (Tr. 69, Exhibit P-6, page 2).
09

7Nevertheless,

I credit Inspector Holeman's testimony over
that of Mr. Warvel. Mr. Warvel did not observe the test of the
parking brake and Respondent has not clearly established that the
ramp about which Mr. Warvel testified was the ramp on which the
parking brake was tested. Testimony from Mr. Howard, who was
present, would have been much more persuasive.

1616

continuing to use the front-end loader without an objective
determination of the extent of the defect. I, therefore,
conclude that the violation herein was due to Respondent's
unwarrantable failure to comply with the standard Peabody Coal
Company, 14 FMSHRC 1258 (August 1992). Allowing Respondent to
rely on a seat-of-the-pants determination that the defect would
not endanger its workers is completely contrary to spirit of the
Act. I find the higher penalties called for, when a violation
meets the criteria of section 104(d) (1), are justified in this
instance.
With regard to whether the violation was "significant and
substantial", an accident resulting from the failure of the
parking brake would clearly be likely to result in death or
serious injury. Moreover, as the equipment was clearly defective
and operated on steep inclines at least daily, I find the chance
of an accident occurring was also reasonably likely.

On August 21, 1992, Mr. Holeman inspected another site at
which Respondent was engaged in a dredging operation. This
worksite was located on Howe Road in Clinton County, Michigan.
As during his previous inspection, the site was not actually
producing on the day of his arrival due to a malfunction of the
dredge (Tr. 119, 123).
Inspector Holeman observed a stacking conveyor with an
elevated walkway next to, and parallel to it. Although the
conveyor had a handrail along its sides, the end of the conveyor
was open and Mr. Holeman concluded that the absence of a handrail
exposed employees to a hazard of falling ten feet to a stockpile
of sand (Tro 81-90 118).
Mro Warvel testified that while he agreed that the end of
the walkway should have been guarded, it was rarely used and that
the potential fall distance was only seven feet (Tr. 143-144). I
credit the testimony of Mr. Warvel in this regard, noting that
Mr. Holeman did not measure the distance (Tr. 89).
I find that an accident was very unlikely in this instance
due to the fact that the walkway was used infrequently and
because the sides of the walkway were guarded. Moreover, given
the fact that a fall would be onto a pile of sand, I find it
unlikely that serious injury would result from this violation. I
affirm the citation as a non "significant and substantial"
violation.
During his inspection of the Howe Road plant, Inspector
Holeman observed a 13-foot wide bridge constructed of culvert
pipe and earthen material which did not have a berm on either
side. The bridge was used by Respondent's equipment, including a

1617

9-foot wide caterpillar scraper, to cross a stream 10 feet below
it (Tr. 95-101). The inspector issued Citation No. 4095665 which
alleged a violation of 30 C.F.R. § 56.9300(a). That standard
requires that: "Berms or guardrails shall be provided and
maintained on the banks of roadways where a drop-off exists of
sufficient grade or depth to cause a vehicle to overturn or
endanger persons in equipment."
Respondent is apparently most concerned with the
"significant and substantial" characterization of the violation
(Tr. 145). I find that all four elements of a "significant and
substantial" violation have been established by the Secretary.
Given the width of the bridge and the width of Respondent's
equipment, I find that an accident was reasonably likely and that
an injury, if one occurred, would likely be fatal or very
serious.
ORDER

conclusions and Penalty Assessment
Section 110(i) of the Act requires the Commission to
consider six factors in assessing civil penalties: the operator's
history of previous violations, the appropriateness of such
penalty to the size of Respondent's business, the negligence of
the mine operator, the effect of the penalties on the operator's
ability to remain in business, the gravity of the violations and
the good faith of respondent in attempting to achieve rapid
compliance with the Act.
The penalties for the violations alleged in this matter are
relatively low to start with--all under $1,000; four of the eight
under $100o Respondent has conceded that payment of the
penalties would not put it out of business and objects primarily
t.o the ogsignificant and substantial" characterization of the
violations (Tr. 168-169). 8 The size of Respondent's business,
its history of previous violations, and its good faith in rapidly
correcting the violations indicate that relatively low penalties,
such as those proposed by the Secretaryu are warranted in those
instances in which the Secretary has established all the facts it
8

While Respondent lost over $300,000 in 1988 and 1989, it is
not the only business venture of David R. Schlegel, the President
and sole officer. Despite losses in some years, the undersigned
is left with the impression that the operation of Respondent
company is economically advantageous for Mr. Schlegel and that
the economic .benefit derived from its operations would not be
significantly compromised by payment of the penalties assessed in
this matter. Mr. Schlegel draws a weekly salary of $1200 from
Respondent. In 1990 Respondent showed a profit of $146,594 (Tr.
166-177).

1618

alleges. The gravity and negligence issues must be addressed on
a violation by violation basis.
Citation No. 3887301 - A $25 penalty is assessed in light of
the low gravity. A $50 penalty was proposed.
Citation No. 3887302 - The $147 penalty proposed by the
Secretary is assessed in light of the likelihood of injury and
obviousness of the hazard. This citation is affirmed as a
"significant and substantial" violation.
citation No. 3887303 - A $25 penalty is assessed in light of
the low gravity. A $50 penalty was proposed.
Citation No. 3887304 - A $25 penalty is assessed in light of
the low gravity.
Citation No. 3887305 - A $50 penalty is assessed. A $300
penalty was proposed. This citation is affirmed as a violation
of section 104(a) of the Act. The characterizations of
"unwarrantable failure" and "significant and substantial" are
vacated.
Citation No. 3887306 - An $800 penalty is assessed, as
proposed. This citation is affirmed as "significant and
substantial" and as due to the unwarrantable failure to comply
with a mandatory safety standard, pursuant to section 104(d) (1)
of the Act. 9
Citation No. 4095664 - A $25 penalty is assessed due to the
unlikelihood of an accident or serious injury. This is affirmed
as a non ~significant and substantial" violation.
citation No. 4095665 = A $200 penalty is assessed. Although
a $157 penalty was proposedu the likelihood of an accident and
likely consequences of an accident warrant a higher penalty.
This is affirmed as a "significant and substantial" violation.

9

This Citation was issued as a section 104(d) {1) order,
predicated on the findings of "significant and substantial" and
unwarrantable failure made with regard to Citation No. 3887305
(Exhibit P-6, pages 1 and 3, block 14). Since I have vacated
those characterizations with regard to Citation Nos. 3887305,
3887306 is a citation rather than an order issued pursuant to
section 104(d) (1) of the Act.

1619

Respondent is hereby directed to pay civil penalties in the
amount of $1,297 within 30 days of the date of this decision.

~~

Arthur J. Amchan
Administrative Law Judge
Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, u.s. Department of
Labor, 230 s. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail}
James L. Winckler, Esq., Moran, Bladen and Winckler, P.C.,
603 South Washington, suite 300, Lansing, MI 48933-2303
(Certified Mail)
jjf

1620

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 1 0 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 92-587
A.C. No. 36-00840-03814

v.

Mine No. 33

BETH ENERGY MINES INC.,
Respondent
DECISION
Appearances:

Pamela W. McKee, Esq., Office of the Solicitor,
U.S. Department-of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Steven c. Smith, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Barbour

In this case the Secretary of Labor, pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801, et seg. ("Mine Act" or "Act"), charges Beth
Energy Mines, Incorporated {"Beth Energy") with four violations
of mandatory safety standards for underground coal mines found at
30 C.F.R. Part 75 and proposes the assessment of civil penalties
for the violations. Two of the alleged violations are contained
citations issued by the Secretary pursuant to section 104(a)
of the Act. 30 u.s.c. § 814(a). One is contained in a citation
issued pursuant to section 104(d) (1) of the Act and one is
contained in an order of withdrawal issued pursuant to section
104(d) (1) of the Act. 30 U.S.C.§ 814(d) (1). In addition to
alleging violations of the standards, the section 104(d) (1)
citation and order also allege that the violations constituted
significant and substantial contributions to mine safety hazards
(an °9 S&S' 0 violation) and were caused by Beth Energy 9 s
unwarrantable failure to comply with the cited standards (an
00
unwarrantable 01 violation) .
Beth Energy denied the alleged violations and the S&S and
unwarrantable allegations, and a hearing on the merits was held
in Pittsburgh, Pennsylvania. The general issues to be tried were
whether Beth Energy violated the cited standards and, if so,
whether the Secretary could prove the special findings of s&s and
unwarrantable failure. In addition, and in accordance with
Section llO(i) of the Act, if violations were established
appropriate civil penalties would have to be assessed.

1621

SETTLEMENTS
Shortly before the commencement of the hearing the parties
advised me that they had agreed to settle three of the four
alleged violations. It was decided that counsel for the
Secretary would state on the record the nature of the settlements
and I indicated if I found the settlements to be appropriate I
would approve them and order payment of the settlement amounts in
my decision on the remaining contested violation.
Section
Citation No.
Date
30 C.P.R.
Assessment
settlement
75.316
03705551
$400
11/4/91
$98
The citation alleged that the approved ventilation system
and methane and dust control plan for the mine was not complied
with in that a check curtain had been installed in an entry where
the plan indicated a wall with a hole in it should have been.
Counsel for the Secretary stated that the inspector who issued
the violation believed that it was unlikely that an illness or
injury would have occurred as( a result of the violation and that
no miners were affected by the violation. Counsel further stated
that Beth Energy demonstrated its good faith by removing the
check curtain upon the request of the inspector. Finally,
counsel stated if the violation had been assessed on the basis of
these facts the proposed penalty would have been $98 rather than
$400. Tr. 14-15.
Section
Citation No.
03705552

Date
11/4/91

30 C.P.R.

75.1202

Assessment
$400

Settlement
$98

The citation alleged that the mine map was not kept
up-to-date in that the aforementioned check curtain was not shown
on the map" Counsel for the Secretary again noted that the
inspector believed an injury or illness resulting from the
violation was unlikely and that no miners were affected by the
violation. She further stated that the check curtain was not
shown on the map because it was viewed by Beth Energy as a
temporary feature. Finallyu counsel stated if the violation had
been assessed on the basis of these facts the proposed penalty
would have been $98 rather than $400. Tr. 15-16.
Section
Order Noo
03705422

Date
12/12/91

30 C.F.Re

75.400

Assessment
$700

settlement
$700

The order alleged that hydraulic oil 3/4 inch deep had
accumulated in the right rear area of a roof bolting machine
adjacent to an hydraulic pump. The machine was energized and
there also was an accumulation of oil in the machine's rear
tramming compartment, as well as an accumulation of coal and coal

1622

dust mixed with oil on the machines's right and left front
bolting arms and an accumulation of coal and coal dust mixed with
oil under the machine's right rear corner. Counsel for the
Secretary noted the inspector's finding that the violation was
S&S and that the operator's negligence was "high". (Indeed, as
previously stated, the inspector cited the violation in a section
l04(d} (1) order, thus finding that the violation was the result
of Beth Energy's unwarrantable failure.) Counsel also noted that
Beth Energy had agreed to pay in full the proposed civil penalty
of $700.
In addition to addressing the above recited facts pertaining
to the settled violations, counsel for the Secretary stated on
the record information pertaining to the size of Beth Energy, the
relevant history of previous violations at the Cambria Slope Mine
No. 33 ("Mine No. 33") and the agreed fact that payment of
assessed amounts would not affect Beth Energy's ability to
continue in business. Tr. 17-18.
Having considered the Secretary's representations, I find
that approval of the proposed settlements is reasonable and in
the public interest, and pursuant to 30 C.F.R. § 2700.30 counsel
for the Secretary's motion to approve the settlements is GRANTED.
I will order payment of the settlement amounts at the close of
this decision.
CONTESTED VIOLATION

Section
citation No.
03705626

Date
12/9/91

30 C.P.R.

75.1722(b)

Assessment
$600

Section 104(d) (1) citation Noo 3705626 states in pertinent~
The guard provided on the inby
end tight side of the #2 E East
belt drive was not adequate to keep
person [sic] from traveling along
this tight side w[h]ere exposed
drive rollers existed [.] This was
a fence type guard and consisted of
one turnbuckle and one strut leg in
a cross manner that any person
traveling along the tight side
could step over. This area was wet
and slippery. The belt was
operating at the time observed.
Gov. Exh. B. As previously mentioned, the citation contains the
inspector's S&S and unwarrantable findings. Finally, the
citation states that it was issued at 9:45 a.m. on

1623

December 9, 1991, and was abated at 11:30 a.m. on the same day
when "A wire fence was installed to guard this location." Id.
On December 9, 1991, at 11:45 p.m. the citation was modified
to state:
Due to information received in a
discussion with Jim Pablic (Shift Foreman)
Citation No. 3705626 is hereby modified
• • • [add]ing the statement[:] This
inadequate guard was installed by Jim Pablic
(Shift Foreman) and would be very easy to
recognize as a violation of the Health and
Safety standards.
Gov. Exh. B 2. In addition, the assessment of negligence was
modified from "low" to "high" and the section of the Act under
which the citation issued was modified from section 104(a) to
section 104(d) (1). Id.
PARTIES' CONTENTIONS

In her opening statement, counsel for the Secretary asserted
she would establish the belt was inadequately guarded as charged,
that a miner was reasonably likely to have been seriously or
fatally injured due to the inadequate guard and that the foreman
who erected the inadequate guard knew it did not meet the
standard's requirements yet nonetheless decided to wait until his
next shift -- some 16 hours later -- to install an adequate
guard. Tr. 20-21.
Counsel for Beth Energy responded that Beth Energy did not
deny it had violated section 75.1722(b). Tr. 21. Rather, he
argued that a miner was not reasonably likely to be injured due
~o the violation because the guard in place was adequate to deter
miners from traveling down the tight side of the belt and a sign
warning miners of the dangers posed by a sump located in the
vicinity of the guard would have deterred miners from trying to
pass the area. 1 Moreover, counsel stated he would establish that
the foreman had noticed the unguarded area on an idle day (a
Sunday) 1 had installed a temporary guard to apprise miners that
the area was not guarded and, knowing that he would be returning
on the third shift on Monday reasonably concluded it would be
appropriate to install a permanent guard then. Tr. 21-22.

"Sump" is defined generally as "[a)ny excavation in a mine for
collecting or storing water." u.s. Department of the Interior, A Dictionary of
Mining, Mineral, and Related Terms ( 1968) at 1102 ( "DMMRT").

1624

SECRETARY'S WITNESSES
GENE RAY

Federal Coal Miner Inspector Gene Ray was the Secretary's
first witness. Ray stated that he had been inspecting mines for
the Secretary's Mining Enforcement and Safety Administration
("MSHA") for 14 years. Prior to working for MSHA, Ray had worked
as an underground contract coal miner and as a salaried section
foreman. Tr. 26-27.
on December 9, 1991, Ray conducted an inspection of Mine
No. 33. Ray identified Citation No. 3705626 as a citation he
issued during that inspection. Tr. 29-30. Ray stated that on
December 9, he inspected the E East Belts, beginning with an
inspection of the number one belt and concluding with an
inspector of the number two belt and its drive (the No. E-2 belt
drive) . 2 To reach the belt drive Ray had traveled down the
clearance side (wide side) of the number one belt. Thus he
arrived at the No. E-2 belt drive from the clearance side.
Tr. 33-37.
Ray explained that the clearance side of the No. E-2 belt
drive was guarded by a chain link-type guard that screened the
entire side of the belt drive and prevented miners from falling
into or otherwise contacting the belt drive rollers. Tr. 37.
(The rollers are depicted on R. Exh. 1 and include a discharge or
tail roller on the outby end of the drive, a movable take up
roller in the middle of the drive and a stationary takeup roller
on the left of the drive. Tr. 38.) The clearance side fence
measured 4 feet from the floor to the top of the guard, and it
was hung perpendicular to the belt and extended from the
discharge roller at one end to the takeup roller at the other
endo Id. The sump was immediately adjacent to the stationary
takeup roller andu according to Rayu at the time of the
inspection the clearance side guard extended "a few feet" past
the takeup roller toward the sump. Tr. 39.
Ray concluded that the clearance side of the No. E-2 belt
drive was properly guarded and, as was his usual practiceu he
crossed to the other side of the belt drive (the "tight side") to
continue the inspection. Because there was no crossover at the
the belt driveu Ray pulled a stopjstart cord and crossed the

2

According to Ray, a new longwall had been installed on the section
and Pablic was examining the belts to make certain everything was "O.K."
before production started at midnight, December 9. Tr. 75, 99-100.

1625

belt inby the belt drive and after the belt had stopped.
Once across, he restarted the belt by pulling the cord. 3

Tr. 40.

As Ray proceeded outby toward the belt drive, he encountered
a metal strut approximately 5 feet in length. The strut was
crossed by a turnbuckle of approximately the same length. The
strut and turnbuckle crisscrossed each other each other on the
diagonal (a st. Andrew's cross) between the rib and the belt
drive structure. Tr. 40-41.
Ray believed that the height of the entry was approximately
6 feet and that the crux of the cross was approximately 2 feet
from the mine floor. Tr. 49. Although Ray did not recall the

distance from the rib to the belt, he testified it was normally
42 to 48 inches.
Tr. 50. (Ray admitted that he had taken no
measurements and that his estimates were just that. Tr. 81.)
Ray stated that he stepped over the cross, and took a few paces
outby. Tr. 41. Ray maintained that the floor of the tight side
walkway outby the crossed pie;!ces was wet, muddy and slippery, and
that he had to watch his footing so that he would not fall.
Tr. 43, 54. When he looked up, he realized that he was standing
next to the exposed stationary tail roller at the inby end of the
belt drive. The roller was not guarded. Tr. 43.
Ray was taken by surprise to find himself at the tail
roller. At Mine No. 33, the tight side of a belt drive usually
was guarded by an area guard -- a fence or a piece of belt that
blocked the approach to the belt drive in the tight side entry.
Ray had expected to come across such a fence prior to reaching
the belt drive.
Tr. 54, 124. Realizing where he was, Ray
maintained that he was "a little concerned for himself" so he
turnedv moved back inby the roller and stepped back over the
crossed strut and turnbuckle. Tr. 43u 55.
Once over the strut and turnbuckle, Ray examined them again.
He described

what he saw~ "To the best of my recollection it was
a cross~ and it was tied. One side was tied to the belt rope on
the top . .
and I don't believe it was tied on the bottom . • .
They was just laying on the bottom in a crossed fashion.
Tr. 44, 109. According to Rayu the cross was 5 to 10 feet inby
the stationary tail roller. Tr. 45; See also Resp. Exh. 1
(blue X ~)
QQ

00

0

0

When Ray found that the crossed pieces were tied he
concluded that they were being used as a nguard" of some sort,
although he had never seen such a guard before and did not
believe miners would have recognized the pieces as a guard.
Tr. 51, 62, 82. Usually, according to Ray, belt drives are
3

Ray testified that when he arrived in the area the belt was
running and continued to run when he left. Tr. 111.

1626

guarded by wiring or nailing a piece of at least 4 feet high
chain link fence, between the rib and the belt. Tr. 51. He
stated, "They fence that side off so you can't get in beyond
there and get in where the exposed rollers are at." Tr. 52. 4
To pass by a fence type guard, miners loosened the wire, folded
the fence up and moved it out of the entry. Tr. 53. In
addition, the miners were trained to de-energize and stop the
belt when in the vicinity of a belt drive. Tr. 62-63, 66.
In Ray's opinion, at Mine No. 33 a fence would have alerted
miners not to enter the belt drive area before de-energizing the
belt. Tr. 122. In Ray's opinion, miners could not go under,
over or around a fence type guard.
Ray believed that the crossed strut and turnbuckle did not
adequately guard the exposed tail roller and that this
constituted a violation of section 75.1722(b). 5 Tr. 56. He
noted the standard required a guard at a conveyor-drive pulley to
extend a distance sufficient to prevent a person from reaching
behind and becoming caught bet~een the belt and the pulley. The
strut and turnbuckle did not fulfill this purpose because "you
could step right over [them) and that would put you right in
where • • . your whole body could come in contact with a roller."
Tr. 57.
Ray identified a portion of MSHA's Program Policy Manual
{"PPM") that he stated set forth MSHA's policy regarding
acceptable guards. Gov. Exh. c. He recited the policy's
requirement that guards "[b]e of such construction that openings
in the guard are too small to admit a person's hand;" and stated
that the crossed pieces did not meet this requirement because a
miner could have stepped over the strut and turnbuckle and have
gotten not only his hand but his entire body in the roller.
Tro 57-58o He also noted the policy~s statement that a guard
uu[b]e of sufficient size
enclose the moving parts and exclude
the possibility of any part of a personis body contacting the
moving parts while the equipment is in motion;" and he testified
that the strut and turnbuckle did not enclose any moving parts.
GOVo Exh. C; Tr
59o
FurtherP Ray pointed out the policy 1 s
09
statement that [i]nspector 1 s should carefully examine each belt
conveyor drive to determine whether all rollers are sufficiently
Ray testified Beth Energy abated the subject violation by
installing such a fence across the entry. Tr. 70.
5

Section 75.1722(b) states:
Gears at conveyor-drive, conveyor-head,
and conveyor-tail pulleys shall extend a
distance sufficient to present a person
from reaching behind the guard and
becoming caught between the belt and the
pulley.

1627

guarded to prevent persons from becoming entangled between the
rollers and the conveyor belt;" and explained that was what he
had done. Id.
With respect to why a miner would have been in the area of
the roller in the first place, Ray noted that operation of the
conveyor belt produced coal dust that had to be cleaned up, that
coal carried on the belt spilled from the belt and had to be
cleaned up and that conveyor belts had to be replaced or
repaired, as did supports for the roof above the belt drive or
adjacent to it. Tr. 65. Miners would have had to enter the area
to do these things. In addition, because of the amount of coal
dust created at the drive, it frequently was necessary to spread
rock dust and to hose the dust down. The sump was there to catch
the residual when water was applied to the dust. Tr. 69. More
important, on the same day Ray issued the subject citation, Ray
also issued a citation for an accumulation of float coal dust in
the belt drive area (or, as Ray put it, "at this very location")
and miners would have had to enter the area to clean up the dust.
Id. 6
When he wrote the subject section 104(d) (1) citation, Ray
believed that either a miner who was cleaning the belt or one who
was examining it would likely have been injured due to the
violation. Tr. 99. Ray understood it was a policy at the mine
for belt examiners normally to travel the wide side but to cross
to the tight side whenever it was necessary to check on
something. Tr. 119-120. Ray indicated the presence of a
hazardous loose rib, defective roof supports and hanging roof, or
hot rollers would cause a belt examiner to cross to the tight
side and be adjacent to the belt drive. Tr. 120-121.
Ray also acknowledged tha·t if a miner crossed from the wide
of the belt to the tight side to clean the beltu he or she
would stop the belt to cross and would restart it once on the
tight side. In addition, it was a policy at the mine to stop the
belt whenever a miner was adjacent to the belt drive. Tr. 96.
~ide

Ray believed that in order for a miner to be injured due to
the cited conditionu the miner would have had to step over the
crossed pieces and walk through the wet area to bring himself or
herself adjacent to the roller. In addition, the belt drive
would have had to be energized so that the belt was moving and
the roller was turning" Tr. 91-92. Ray acknowledged that if a
miner was next to the tail roller, the belt should have been
de-energized. Howeveru he maintained that without an adequate
guard (a fence) a person intent on what he or she was doing and
6
According to Ray, the accumulation existed on both the tight and
wide sides of the belt and covered a distance 50 feet outby the belt drive and
400 feet inby the belt drive. Tr. 69-70.

1628

therefore not concentrating on what lay ahead could "very easily
"get into the area next to the roller, slip and become entangled
in the turning roller. Tr. 67, 97, 124. If a miner slipped or
fell, Ray believed it reasonably likely the miner would have been
fatally injured.
Although the floor was slippery under and inby the pieces,
there was no standing water immediately adjacent to the roller.
Ray believed the sump did not cover the walkway on the tight side
but was under the bottom belt. Tr. 84-85. Ray could not recall
whether or not a sign stating "Danger Sump" was hung immediately
inby the crossed pieces. Tr. 109. In any event, in Ray's view
danger signs were not acceptable as guards because they did not
prevent a person from contacting exposed rollers. Tr. 60.
After Ray observed the condition, he continued walking outby
along the belt until he reached the end of the belt. There he
met John Pauley, the assistant shift foreman. He told Pauley
about the condition and stated . that . he was going to issue a
citation. Tr. 68.
Later in the day, about 11:45 p.m., Ray was entering the
mine as Jim Pablic, the shift foreman on the second shift (the
4:00 p.m. - 12:00 a.m. shift) was leaving. Ray stated that
Pablic stopped him and asked if Ray had written the citation and,
if so, why? Ray stated when he told Pablic crossed pieces were
inadequate as a guard, a "pretty hefty discussion" ensued.
Tr.72.
During the discussion Pablic told Ray that he, Pablic, had
installed the crossed pieces the day before (Sunday, December 8)
and that he had planed to install a fence on the just finishing
second shift. Tr. 72. 01 [B]utu 00 Ray quoted him as saying 11 you
got there before I did. 00 Id. Because Pablic was the one
responsible for erecting the crossed pieces and because Pablic
had planned to leave them in place on December 9 on the midnight
to 8:00 a.m. shift and the 8:00 a.m. to 4:00 p.m. shift, Ray told
Pablic he was going to modify the citation to one issued pursuant
~o section 104(d) (1) of the Act.
Tr. 72-73.
Ray stated, ~[T]hat's what upset me the most because if you
find something on a sunday and there is no production going on
and the belt is not in operation . . • there's no excuse to leave
a condition half abated or half fixed . . • and have a hazard
like that when the belts are in operation [on Monday] . • . I just
can't understand why anybody would do something like that."

1629

Tr. 73-74. In Ray's opinion the maximum amount of time needed to
fix the condition would have been one half hour. Tr. 77.
ROBERT NOVAK
Robert Novak, a shuttle car operator, union safety
representative and a miner with approximately twenty years of
experience at Mine No. 33 was the Secretary's final witness.
Novak stated that he had occasion to travel various belt lines
throughout the mine and was familiar with "tight side guarding."
He testified that in his experience all of such guarding
consisted of chain-link fencing, approximately 4 feet high and
running from the rib to the belt drive. Tr. 131-132. The
purpose of such fencing was to prevent inadvertent entrance to
the belt drive area. Novak stated that he had never seen any
other type of guarding used on the tight side. Tr. 133. Novak
had not seen the crossed pieces erected by Pablic, but had he
done so he would have thought "[i]t could have been a strut or
something just laying there."' Tr. 146.
Novak did not believe that the crossed pieces would have
prevented him from entering the area.
("I would probably just
step right over it." Tr. 134.) Nor would a "Danger sump" sign
have warned him of anything other than to look out for the sump.
Tr. 136. Novak stated if miners were cleaning a coal spill on
the tight side and they came to a fence and they wanted to go
beyond the fence, the miners would have to take the fence down.
If they wanted to go into the belt drive area they would then
de-energize the belt drive. If a fence were not there, the
miners "would probably continue on" and not de-energize the belt
drive. Tr. 139.
On cross-examination, Novak was asked to look at a picture
Beth Energy had taken of
strut and turnbuckle and the nearby
roller. Resp. Exh. 3.
(Beth Energy left the crossed pieces in
place for some time after the citations was terminated and the
picture was taken during this period.) Novak was then asked
whether, in his opinion,
a miner had seen the crossed pieces
and roller as depicted in
nicture the miner would have
realized he or she was approaching a belt drive? Novak responded
he believed the miner would. Tr. 141. He also agreed that if a
miner knew he or she was approaching a belt drive and stepped
over the crossed pieces the miner would have known to turn off
the belt drive. Tr. 142. Moreover 9 at Mine No. 33 the belt
drives were lit by mercury-vapor lights. However, because the
lights were located on the wide side, the tight side belt drive
area would not have been as well lit as depicted in the picture.
Tr. 144.

1630

BETH ENERGY'S WITNESSES
JIM PABLIC
Jim Pablic, the shift foreman at Mine No. 33, was Beth
Energy's first witness. He stated that he had started to work
for Beth Energy in 1973 as a salaried employee. Subsequently, he
earned his mine examiner's papers and began making underground
examinations for the company. He then earned mine foreman's
papers. Tr. 148-151.
Turning to the events of December a, 1991, Pablic stated
that on that date he was working the 12~00 a.m. to 8:00 a.m.
shift as a foreman/mine examiner. Because is was Sunday, no coal
was being produced and no other miners were working except
another foreman and a miner who were supposed to check the pumps
at the mine. Tr. 157. Three hours before the next shift, at
approximately 5:00a.m., Pablic began conducting a preshift
examination for the oncoming shift. As part of that examination
he examine the No. E-2 belt drive area. The belt drive was
located in an area that he normally did not examine. However, he
had been informed that he would be responsible for supervising
the area the next day (Monday) so he stopped by the area to
become familiar with it and to see if there was anything in need
of correction. Tr. 158-159. The belt was not running. Tr. 163.
Pablic stated that he was on the wide side of the belt drive
and that when he got to the sump he stooped and looked underneath
the belt. He could not see a guard on the tight side. Tr. 162.
Therefore, Pablic walked inby and crossed the belt about 30 feet
from the belt drive. Pablic proceeded toward the belt drive
expecting to find that the guard had been taken off and was
somewhere
the area.
was not there and Pablic had no idea
where it was. Tr. 163.
stated that he looked for
something he could use as a guard, but he found "absolutely
nothing in the area."
Because it was Sunday he claimed that
there was no way he could obtain a piece of chain link fence or a
piece
belt to serve as ~ guard. Tr. 185. Thereforeu he used
materials he found on hand to bui
a u1 barricade. ui Tr. 164. The
materials consisted of ·the strut and turnbuckle.
Pablic installed the pieces just inby the tail roller.
Pablic testified that he secured both the top and bottom of the
turnbuckle by hooking and wiring the top over steel rope and by
tying the bottom with heavy gauge steel wire. He also tied the
top of the strut to existing wire that was holding metal sheeting
against the ribs. The bottom of the strut rested on the mine
floor. Tr. 165-166, 170-171, 215. The distance from the floor
to the roof in the entry was 5 1/2 feet, but steel beam roof
supports extended down approximately 6 or 7 inches, so actual
clearance was approximately 5 feet. Tr. 171-172.

1631

Pablic maintained that he could not climb over the crossed
pieces and because he wanted to check the guard at the other end
of the belt drive he untied the strut and walk up the tight side.
(Pablic stated that he is 6-feet-2-inches tall and has a 34 inch
instep. Tr. 198.) Pablic retied the strut after examining the
front guard and finding that it was in place. Tr. 184. Knowing
that he could not step over the crossed pieces and had to untie
the strut to go past, Pablic believed that anyone else coming up
the tight side would have realized, since the pieces were wired
in place, that the crossed pieces were "a barricade-type thing to
keep somebody from physically going up through there." Tr. 184,
194-195.
According to Pablic, a plastic sign stating "Danger Sump"
hung approximately 5 feet inby the crossed pieces. Tr. 173.
(Pablic was certain it was there because he remembered cleaning
float coal dust from it on Sunday. Id.) Pablic stated that as a
practice Beth Energy did not install such signs at all sumps but
that he had the sign installedwhen,a previous belt drive was in
the same area because he "felt that somebody coming up there
could slip in that sump not realizing that there was a
sump." Tr.183, 213-214.
Pablic believed that Ray remembered the crossed pieces to
have been 5 feet further away from the tail roller than they
actually were located. (In other words, Ray located them where
the sign was hanging.) Pablic was sure Ray was wrong about the
location of the pieces because he distinctly recalled wiring the
top of the strut to the roof support leg inby the sign.
Tr. 173-174. Pablic stated that approximately one week after the
citation was issue he measured from the crossed pieces to the
pinch point of the roller and found that the distance was over 36
inches. Tr" 175u 208. At that distance a miner could not reach
through the crossed pieces and become caught in the roller.
Tro 174-175, 179. In addition, there was a metal pipe that was a
part of the belt drive structure and that in combination with the
crossed pieces would have inhibited a miner from contacting the
rollero Tro 175-176u 182o In Pablicvs opinion, the roller was
visible to anyone standing at the crossed pieces. Tr. 198.
Also, the noise from the belt drive would have alerted someone
that they were at a belt drive location. Tr. 198-199. The noise
was different than the 8'humn of belt rollers. Tr. 219.
Pablic was asked to describe the sump. He stated that it
extended from rib to rib across the width of the entry. On the
tight side the walkway was normally covered with "black, pasty,
heavy, muddy material" from the sump. Tr. 177. In his opinion
no person would have wanted to walk through the material.
Tr. 200. In fact, a plank extended along the rib and when Pablic
reached the sump he walked on the plank so as not to get his
boots muddy. Tr. 230. However, the sump ceased at the belt
roller and adjacent to the belt the tight side floor was cement.

1632

(The belt drive mechanism rested on cement to facilitate cleaning
it and the cement extended to the end roller and perhaps a bit
beyond.
Tr. 229.)
Pablic did not recall "slipping or sliding or
anything" when he walked adjacent to the tail roller. Id.
Pablic testified he intended to return on Monday and install a
permanent guard.
After erecting the crossed pieces, Pablic still had to
finish this preshift examination, which he estimated required
approximately one-half hour.
201. He acknowledged that there
would have been two shifts loading coal before he had an
opportunity to return. Tr. 185. Since the belts on E East
Section would be his responsibility starting Monday, he knew that
belt examiners and belt cleaners would be in the area.
Each
shift would have had one examiner in the area before he would
have gotten back to the belt drive on Monday. Tr. 188-189.
Belt examinations were conducted from the clearance side and if
the examiners had to cross the belt to the tight side they would
have stopped the belt, done what they had to do, go back to the
wide side and restarted the belt. Tr. 189. The start-stop wires
ran the length of the belt on the clearance side. They could
have been used from the tight side as well, but it would be "a
little tougher." Tr. 190.
The belt was cleaned from the clearance side with hoses.
Tr. 191.
Belt cleaners hosed everything down toward the sump.
They shoveled as little as possible, but there were times when
shoveling had to be done.
If miners had to cross to the tight
side to shovel a heavy spill at the belt drive they would have
shut down the belt, although in any area other then the belt
drive the belt cleaners would have let the belt run.
Tr. 192~193.
Pablic acknowledged that he did not leave a message for
the oncoming shifts concerning the lack of an adequate guard.
Tr. 203. He also stated when the citation was abated by
installation of a chain link fence, the fence was put up
immediately inby the crossed pieces. Tr. 209.
ROBERT ROLAND
Robert Roland, a mine inspector for Beth Energy, was the
company 1 s second and final witness. Roland, who taught MSHA
approved safety courses and who was familiar with Beth Energy's
policies and procedures, stated that belts were cleaned by water
hose directed from the wide side with the residue being washed
into a sump and pumped out. Tr. 239.
In addition, belts were
examined from the wide side. Tr. 240.
Beth Energy trained its
miners to de-energize the belt if they had to go guarding for any
reason.
Id.

1633

Roland testified that after the citation was issued he saw
the crossed pieces erected by Pablic. Roland believed miners
would have recognized them as a barricade and concluded that
someone was trying to block their entrance to the area.
If
someone had to travel beyond the crossed pieces for some reason,
company policy required them to de-energize the belt. Tr. 242.
The crossed pieces were left in place following issuance of
the citation so that Beth Energy could obtain measurements of the
pieces and the distances involved and prepare the drawings the
company introduced as exhibits. Tr. 244.
THE VIOLATION

Section 75.1722(b) requires guards at conveyor-drive pulleys
sufficient to prevent a person from reaching behind the guard and
becoming caught between the belt and the pulley. 7 Beth Energy
does not contest the violation (Tr. 21) and I find that it
existed as charged.
Indeed, there was no guard at the tail
roller and whether or not a f'ence-'-type guard or "area guard"
alone would have met the requirements of the standard, the
crossed strut and turnbuckle were not acceptable. They could
have been gotten over and a person could have become entangled in
the roller's pinch point. 8
S&S and GRAVITY

The Commission has held that a violation is "significant and
substantial" if, based on the particular facts surrounding the
violation, there exists a "reasonable likelihood that the hazard

7
A "pulley" is defined as, "A cylinder with a shaft for mounting so
·that it may rotate, used to change the direction or plane of belt travel."
DMMRT at 875. Here, although the equipment requiring guarding was
consistently referred to during the proceeding as a "roller" or "belt roller"
or "tail roller " it is clear that its function was to change the direction
of travel of the belt. Resp. Exh. 1.

Previously, I have expressed the view that area guarding is
incompatible with section 75.1722(b). Consolidation Coal Co., 15 FMSHRC
Docket No. WEVA 92-992, etc. (June 30, 1993) slip op. at 22-23.
In that case
MSHA's policy concerning whether or not area guarding was allowed had varied
within the same MSHA administrative district depending upon the MSHA office
responsible for inspecting the mine. The company had been advised first that
such guarding was permissible and then, when jurisdiction over its mine
changed to a different office, was told such guarding violated the standard.
Here, in a case; arising in another MSHA administrative district, area
guarding is permitted. While Emerson may have been right that foolish
consistency is the hobgoblin of little minds, there is nothing foolish about
uniform enforcement of government mandated regulations. Not only is such
enforcement wise policy, it is required by the Act, a lav1 that is, afterall,
applicable to the nation as a whole.

1634

contributed to will result in an injury or illness of a
reasonably serious nature. Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (Ap[ril 1981). Further the Commission has
offered guidance upon the interpretation of its National Gypsum
definition by explaining four factors the Secretary must prove in
order to establish that a violation is S&S. 9
In this case, there is an admitted violation of section
75.1722(b). Further, the violation posed a discrete safety
hazard in that failure to adequately guard the tail roller
subjected any person who worked or traveled adjacent to the
roller to the danger of coming into contact with the roller and
of being caught in its pinch point. It is also clear that if
such an accident occurred death or dismemberment reasonably could
have been expected. Thus, the record establishes three of the
four factors the Secretary must prove.
As ·is frequently the case when the alleged S&S nature of a
violation is challenged, the question is whether the Secretary
also has established a reasonable likelihood that the hazard
contributed to will result in an injury?
Or, as the Commission
has put it, whether the Secretary has established that the
hazard contributed to will result in an event in which there is
an injury." u.s. Steel Mining Co., Inc. 6 FMSHRC 1573, 1574 (July
1984); see also Halfway. Inc., 8 FMSHRC 12 (January 1986). The
relevant time frame for determining whether a reasonable
likelihood of injury exists includes both the time that the
violative condition existed prior to citation and the time that
it would have existed if normal mining operations had continued.
Halfway, Inc., 8 FMSHRC at 12; U.S. Steel Mining Co., 7 FMSHRC
1125, 1130 {August 1985).
Beth Energy argues the Secretary has failed to prove that
miners would have been exposed to injury by the violation had
normal mining operations continued in that the evidence
establishes that miners would have been unlikely to travel the
tight side of the belt drive beyond the crossed pieces while the
drive was operating. Beth Energy Br. 9o

9

In Mathies the Commission stated~
[T]o establish that a violation of a mandatory
standard is significant and substantial under
National Gypsum, the Secretary of Labor must prove:
(1) the violation of a mandatory safety standard;
(2) a discrete safety hazard 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.

Mathies, 6 FMSHRC at 3-4.

1635

The Secretary counters he has established that miners worked
on the tight side of the belt to do various tasks that could have
been required at any time had mining continued, that miners would
not have recognized the crossed pieces as a guard and that,
expecting a fence before coming to the belt drive, miners would
have stepped over the crossed pieces and found themselves
adjacent to the tail roller. Sec. Br. 8-11. Then, given the
condition of the floor, they would have been reasonably likely to
slip or fall and to have become entangled in the pinch point.
I find the Secretary has the better part of the argument.
The Secretary is right in asserting the testimony establishes
miners were required to work on the tight side of the belt. This
is particularly true of those miners who had to clean up
accumulated coal dust or coal spillage. Tr. 65. I note in this
regard Ray's unrefuted testimony that he had cited Beth Energy
for an accumulation of float coal dust in the area of the belt
drive, including the tight side adjacent to the tail roller, on
the same day and minutes prior to the time the subject violation
was cited. Tr. 69, 139. While it is not clear from the record
whether this accumulation could have been cleaned up by being
hosed down from the wide side, it is certain, as Pablic admitted,
that there were instances when clean up had to be done by shovel
from both sides of the belt and I conclude that had normal mining
operations continued, it would have been reasonably likely for a
miner to have been assigned to work on the tight side of the belt
drive to clean up accumulated coal dust or loose coal. Tr. 192193
I also note that although the practice at the mine was for
miners to shut off the belt while crossing, the belt was
restarted once crossed and continued to operate while miners
cleaned up accumulations and spills. Thus, I find that a miner
assigned to clean up an accumulation or spill on the tight side
cf the belt would have done so while the belt was in operation.
I further note that it was a practice at the mine to guard
belt drives with a fence-type guard. This being the case, I find
persuasive Ray 0 s and Novak 0 s suggestion that miners would not
have recognized the crossed pieces as a guard for the belt drive.
I agree with Ray that miners would have been looking for a fence
not a strut and turnbuckle. Further, I find entirely credible
Ray 0 s testimony that he was able to step over the crossed pieces,
and whatever Pablicvs problem that prevented him from doing so, I
so no reason why other miners would have been impeded from
following (almost literally) in Ray's footsteps. Thus, I conclude
that any miner assigned to clean up an accumulation or a spill
existing on the tight side both inby and outby the crossed pieces
would have come to the crossed pieces and simply have gone over 1
them just as Ray did, placing himself or herself adjacent to the
tail roller.

1636

While it is true that Novak, when shown a photograph of the
crossed pieces and the roller behind them (Resp. Exh. 3), agreed
that a miner seeing them would have realized he or she was coming
to the belt drive, it is not at all clear that the photograph
depicts what a miner moving up the entry and assigned to a task
would in fact have seen. Tr. 141. For one thing, the photograph
was not established to have been taken in the same light as would
have been available to a miner. Lights for the belt drive were
positioned on the other side of the drive, and it is not certain
that a miner on the tight side would have been able to discern
the roller beyond the crossed pieces from the actual light
available on the tight side. In addition, I believe it
reasonable to assume that a miner assigned to clean up an
accumulation or spill on the tight side would have been intent on
his or her task and would not have been looking for components of
the belt drive in the absence of a fence.
Nor do I find persuasive Pablic's testimony that the noise
from the belt drive would have·alerted an approaching miner to
its presence. Rather, for me Ray's testimony that he did not
realize the drive was there until he was virtually on top of it
is more convincing -- and Ray had 22 years of underground mining
experience. Ray was intent on watching his footing and I believe
it reasonable to assume that a miner assigned to clean up duty
would have been similarly intent on not slipping rather then on
distinguishing the noise of the belt rollers from that of the
belt drive.
Thus, I conclude that had normal mining operations continued
it was reasonably likely that the miner would have been assigned
to work on the tight side in the vicinity of the belt drive and
in carrying out his or her assignment would have proceeded
over the crossed pieces and inadvertently placed himself or
herself adjacent to the moving tail roller.
I also credit Ray's testimony that the floor in the vicinity
the roller was slippery and that a person could have fallen.
Tr. 67. Pablic did not remember slipping or sliding, but
whatever the condition
the floor immediately adjacent to the
1 roller when the crossed pieces were erected and when the
violation was citedv given the presence of the sump at the end of
the tail roller and the fact that most accumulations were hosed
to the sump, I conclude that had normal mining operations
continued water from this clean up process would have made the
footing next to the tail roller hazardous. In addition, a miner
assigned to clean up an accumulation or spill and approaching the
belt drive would have been concentrating on traversing the water,
mud and muck of the sump area in addition to concentrating on his
or her clean up duties. In other words, the condition of the
floor would have contributed to the likelihood of a miner

1637

becoming caught in the pinch point of the tail roller in two
ways -- by distracting the miner so as to be unlikely to realize
he or she was in the vicinity of the roller and by causing the
miner to slip and to fall into the roller.
I therefore conclude the Secretary has established a
reasonable likelihood that in the context of ongoing m~n~ng
operations, a miner would have become caught in the pinch point
of the tail roller.
In determining the gravity of the violation I must consider
both the potential hazard to the safety of miners and the
likelihood of the hazard occurring. As has been noted, the
violation subjected the miners to possible death or
dismemberment. In addition, the crossed pieces did not bar entry
to the area adjacent to the tail roller and did not signal that
the belt drive and tail roller lay beyond. Given the fact that
miners were likely to be assigned to clean up accumulations and
spillage on the tight side of,the belt and that the floor
adjacent to the tail roller was likely to be slippery, it was
likely a miner could slip and become caught in the tail roller's
pinch point. Therefore, I conclude the violation was serious.
UNWARRANTABLE FAILURE AND NEGLIGENCE

The Commission has held that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence by
a mine operator in relation to a violation of the Act. Emery
Mining Corp. 9. FMSHRC 1997, 2004 (December 1987); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987). The
Commission has explained that this determination is derived, in
part, from the ordinary meaning of the term "unwarrantable
failure~ ("not justifiable" or "inexcusable"), "failure"
( ijQneglect of an assignedu expected or appropriate action") , and
01 negligencen
( nthe failure to use such care as a reasonably
prudent careful person would use, characterized by
"inadvertence," "thoughtlessness," and "inattention"). Eastern
Associated Coal Corporationv 13 FMSHRC 178, 185 (February 1991);
citing Emery, 9 FMSHRC at 200lo
Pablic testified that he intended to return and have a
fence-type guard installed the following day. Tr. 185.
Beth Energy describes Pablicis actions as "excusable neglect," at
most. Id.
The Secretary counters that Pablic recognized the condition
violated section 75.1722(b), that he did not inform the oncoming
shifts about the presence of the condition and that he planned to
leave the condition for over two working shifts until he
returned. According to the Secretary, Pablic's failure to notify
the oncoming shifts of the lack of an adequate guard and his

1638

decision to allow the violation to exist until he returned
constituted more than mere negligence and "enter[ed] the realm of
aggravated conduct." Sec. Br. 16.
I agree with the Secretary and conclude the record fully
establishes his contentions. Pablic purposefully left the tail
roller without the guard required by section 75.1722(b). He knew
the device he installed was inadequate, as shown by his decision
to return and to install a fence-type guard. Pablic testified
that because fencing materials to block off the tight side entry
were unavailable in the vicinity of the belt drive and because it
was a Sunday, he was unable to obtain the materials needed to
correct the condition. Tr. 185. This may be, but it is no
excuse for failing to advise responsible officials on the
oncoming shift of the inadequate guard so they could give warning
to miners and install an adequate guard before miners were
exposed to the potential hazard. Pablic knew that coal would be
produced on two shifts before he planned to return. He also
knew, or should have know, tha~ accumulations of coal dust, loose
coal or spilled coal were reasonably likely to occur during those
shifts in the vicinity of the belt drive and that such
accumulations could well require the presence of miners to clean
them up. Such miners would have been exposed to the danger of
the unguarded tail roller and Pablic's failure to communicate
left them to their peril.
Thus, the record contains no indication that Pablic gave
appropriate priority to.the violative condition. Rather, he
allowed it to continue despite the fact that he knew or should
have known miners were likely to be exposed to the risk of
serious injury. Pablic's failure to advise oncoming management
personnel of the inadequately guarded tail roller was not
inadvertent. He acknowledged that although he had not seen the
oncoming shift foreman there were other ways he could have
advised him of the situation. Tr. 203. Subjecting miners on the
next two shifts to the hazards created by the violation was
inexcusable conduct on Pablic's part and establishes Beth
Energy~s unwarrantable failure to comply with the standard.
clearu as well, that in failing to take measures to
assure that the violative condition was corrected Pablic failed
to use such care as a reasonably prudent and careful person in
his situation and with his background would have used. Pablic
was Beth Energy 1 s foreman and his negligence is attributable to
the company. Therefore, I conclude also that Beth Energy was
negligent in allowing the violation to exist.
OTHER CIVIL PENALTY CRITERIA
The parties have stipulated that Beth Energy was assessed a
total of 672 violations at Mine No. 33 in the two years preceding
issuance of the subject citation. In addition, it is worth

1639

noting that 25 violations of section 75.1722 were cited during
this period. This is a large history of previous violations,
both in total number and in the number of violations of the
guarding standard. In addition, Beth Energy is a large operator
with a stipulated annual production of 5,740,168 tons of coal and
the mine has a large stipulated annual production of 1,699,856
tons of coal. The parties have also agreed that any civil
penalty assessed will not affect Beth Energy's ability to
continue in business. Further, I find that once the citation was
issued Beth Energy exhibited good faith in installing the fence
used to abate the violation.
ASSESSMENT OF CIVIL PENALTY

The Secretary has proposed a civil penalty of six hundred
dollars ($600) for the violation of section 75.1722(b). Given
the S&S nature of the violation and the unwarrantable failure of
Beth Energy in allowing the violation to exist, as well as
Beth Energy's large size and ,large history of previous
violations, I find an increased amount to be appropriate, and I
assess a civil penalty of eight hundred dollars ($800.)
ORDER

Beth Energy IS ORDERED to pay civil penalties in the settled
amounts set forth above. In addition, Section 104(d) (1) citation
No. 3705626, 12/9/91, is AFFIRMED and Beth Energy IS ORDERED to
pay a civil penalty of eight hundred dollars ($800) for the
violation of section 75.1722(b) alleged therein. Payment of the
settled and assessed amounts is to be made to MSHA within thirty
(30) days of the date of this decision.
This proceeding IS DISMISSED.

»vv/'clf"'
LJ~ 6ol/rLoavid F. Barbour
Administrative Law Judge
(703) 756-5232
Distribution~

Pam McKee, Esq.u Office of the Solicitor, U.s. Department of
Laboru 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
Steve Smith, Esq., Buchanan Ingersoll, USX Tower, 57th Floor,
600 Grant Street, Pittsburgh, PA 15219 (Certified Mail)
fepy

1640

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

AUG 111993

CIVIL PENALTY PROCEEDINGS

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

Docket No. YORK 92-117-M
A.C. No. 30-00012-05516

v.

Docket No. YORK 92-128-M
A.C. No. 30-00012-05517

BUFFALO CRUSHED STONE, INC.,
Respondent

Wehrle Quarry
DEC:IS:ION

Appearances:

Beforeg

James A. Magenheimer, Esq., u.s. Department of
Labor, New York, New York, for Petitioner;
Mr. Salvatore Castro, Safety Director,
Mr. Gary Blum, Executive Vice-President,
Mr. Jamie Hypnarowski, Senior Vice-President,
Buffalo Crushed Stone, Inc., Buffalo, New York
for Respondento

Judge Weisberger

These cases are before me based upon Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor
(Petitioner) alleging violations of various mandatory safety
standardso Subsequent to notice, the cases were scheduled and
heard in Buffalo, New Yorkv on May 5v 1993o Joseph Michael Denkv
and Richard Leon Duncan, testified for Petitioner. Thomas
Rashford, and Russel Price testified for Respondent. Posthearing briefs were filed by Petitioner and Respondent, on May
24v and May 25v 1993, respectivelyo
Findings of Fact and Discussion
I.

Citation No. 3869974

At the hearing, Petitioner made a motion to approve a
settlement that the parties had agreed to regarding Citation
No. 3869974, which alleges a violation of 30 C.F.R. § 56.1001. A
penalty of $50 was proposed initially by Petitioner. According
to the parties' agreement, Respondent has agreed to pay the
proposed penalty in full. Based upon the representations

1641

presented at the hearing, including the statements made by the
inspector who issued the citation, I find that the settlement is
appropriate, considering the terms of the Federal Mine Safety and
Health Act of 1977 ("the Act"). Accordingly, the motion is
granted, and Respondent is ORDERED to pay $50 for this violation.
II. Citations Nos. 3869950, 3869955, 3869956, 3869957, 3869958,
and 3869959
A.

Citation No. 3869950
1.

Findings of Fact

(a) Respondent operates a stone quarry, known as
the Wherle Quarry, which is an open pit.
(b) on May 5, 1992, Respondent was mining the
second cut of the north face.
(c) Euclid R-50 haul trucks traversed a haul road
from the plant to the north face where a Komatsu WA-800 front-end
loader ("WA-800 loader") loaded crushed and broken limestone onto
the trucks. The trucks then traveled the haul road back to the
plant. This process was repeated continuously throughout the
day. In addition, the WA-800 loader also traveled the haul road
from the plant to the face at the beginning of the shift. At the
end of the shift it traveled from the face back to the plant.
(d) A 300 foot single-lane section of the haul
road was approximately 20 feet wide.
(e) The bucket of the WA-800 loader is
approximately 16 to 18 feet wide.
(f) The Euclid R-50 haul trucks are approximately
15 feet wideo
(g) A vertical highwallu approximately 30 feet
high 0 was on the right side of the haul road going from the face
the plant. On the left side there was a drop off of
approximately 30 feet.
(h) on May 5, 1992, a berm on the left side of
the road extended approximately 2 feet from the edge of the road.
The berm consisted of large quarry stone approximately 1 foot· in
diameteru and loose material.
2.

Further Findings of Fact and Discussion
(a)

Violation of 30 C.F.R.

§

56.9300Cb)

At approximately 9:00a.m., May 5, 1992, the subject site
was inspected by MSHA inspector Joseph Michael Denk, in the
company of his supervisor, ·Richard Leon Duncan, along with Russel
Price, the miners• representative, and Thomas Rashford, the
superintendent at the site.
According to Denk, the height of the berm on the haul road
varied between 1 foot and 2 feet. Duncan indicated that in

1642

limited areas the berm could have been more than 2 feet high, but
that in most areas it was less than 2 feet. According to both
Duncan and Denk, the berms were not as high as the mid-axle of
the Euclid R-50 haul trucks, 1 and were much lower than the midaxle point of the WA-800 loader which was approximately 50
inches. Neither Denk nor Duncan measured either the height of
the berm, the mid-axle point of the Euclid trucks, or the WA-800
loader.
Denk issued a citation alleging a violation of 30 C.F.R. §
56.9300(b) which provides as follows: "Berms or guardrails shall
be at least mid-axle height of the largest self-propelled mobile
equipment which usually travels the roadway." Rashford and
Price, in essence, opined that the berm was adequate.
Rashford
indicated that the berm was up to the mid-axle height of the haul
trucks "through the majority of the area". (Tr.lOO) However, he
conceded that "the berms" may not be as high as "mid-axle height"
in "spots", due to water run off. (Tr.96)
Based on all the above, I find that in the 300 foot section
of the haul road that was limited to one lane of traffic, the
berm did not reach the mid-point of the axle of the WA-800 loader
which travels the road twice a day. 2 I thus find that the
evidence establishes that Respondent herein did violate Section
56.9300(b) as alleged.
(b) Significant and Substantial
In essence, according to Duncan, who was with Denk on May 5,
1992u he had investigated two fatal accidents and numerous other
accidentsu resulting in injuries, wherein trucks had fallen down
~he edge of a road.
He indicated that the narrow width of the
one-lane portion
road
questionu increases the hazard that a
truck would not have been impeded by the berm that was in place.
According to Duncan, driver inattentionu or mechanical
malfunction, could cause a truck to swerve off the road. on the
other hand, Rashford testified that in the past 14 years that he
has been employed at the quarry in questionu no trucks have
~ccidentally gone off the haul road.

1

Subsequent to the issuance of the citation in issue,
measurements taken indicated a mid-axle height of approximately
31 inches.
2

Denk testified that he was told that the WA-800 loader
travels the haul road at the beginning of the shift, and at the
end of the shift. Neither Rashford nor Price nor any other
witness contradicted or impeached this testimony, therefore I
accept it.

1643

I conclude, based on the above, that the hazard of a vehicle
going off the haul road was contributed to by the violation
herein, i.e., a berm that was not as high as the mid-axle height
of the WA-800 loader. Also, considering the width of the
vehicles in question, and the narrowness of the single-lane
section of the haul road, I conclude that an injury producing
event, i.e. a vehicle going off the haul road as consequence of
the low berm, was reasonably likely to have occurred. I thus
find that the violation herein was significant and substantial,
(See, Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984) ~ u.s. Steel Mining
Co., 6 FMSHRC 1834, 3826 (1984)).
(c)

Penalty

Rashford testified, in essence, that in the last 14 years
there have not been any accidents involving trucks that fell off
the haul road. The MSHA Mars Field Office was first given
responsibility over the subject quarry on October 1, 1991. The
first inspection by an inspector from this field office, was that
performed by Denk on May 1992. According to Rashford, when the
quarry was subject to the responsibility of the previous MSHA
field office, he had always had been informed that the berm on
the haul road had to be "adequate". He said that no one had told
him that it had to be a specific height. Rashford indicated that
it is Respondent's policy that employees are instructed to
maintain the berm daily. Rashford 1 s testimony in these regards
was not contradicted. I thus find that Respondent's level of
negligence herein was only "moderate". Taking this into account,
as well as the remaining factors set forth in Section llO(i) of
the Act, I conclude that a penalty of $100 is appropriate for the
violation of Section 56.9300(l)u supra.
Bo

Citation Noso 3869955v 3869956v 3869957v 3869958, and
3869959
1.

Violation of 30 c.F.R.

§

56.9301

In May 1992 9 five stockpiles of stone were located in the
north quarry portion of Respondentgs mine. These stockpiles were
conical
shapeu approximately 25 feet high, and accessed by way
of a rampc The top surfaces of the stockpiles were approximately
50 feet wideu and 50 to 60 feet long, and were flat on top. A
vertical highwall abutted each stockpile on one side. A berm was
located around the outer perimeter of each of the stockpiles.
The berm consisted of stone from the stockpiles.
A WA-500 loader was used daily to maintain the berms. The
mid-axle height of the WA-500 loader is approximately 36 inches.
Denk estimated the height of the berm in question, in the highest
areas, as approximately 1 foot. He did not measure the height of
the berms.

1644

On May 5, Denk observed a Mack 30 haulage truck dumping
material over the edge of the stockpile. He did not measure the
mid-axle point of this truck. Duncan observed the berms from a
truck. At some point he was about 5 to 10 feet from the berms.
According to Duncan, the stockpile berms were only about 12
inches high.
According to Rashford, the berms were 2 to 3 feet high along
the "majority" of the perimeter of the stockpiles (Tr.llO) (sic).
Both Rashford and Price termed the berms "adequate", and Price
said that he thought the berms were high enough for haul trucks.
Denk issued five citations alleging violations at each
stockpile of 30 c.F.R. § 56.9301 which, as pertinent, provides
that berms, " ••• shall be provided at dumping locations where
there is a hazard of overtravel or overturning."
Both Duncan and Denk testified regarding the hazards of a
vehicle going over the edge of'a·stockpile, and causing serious
injuries to the driver of the vehicle. In this connection,
Duncan indicated, in essence, that in backing up, it is very easy
to misjudge the location of the edge of the top of the stockpile.
Taking into account the height of the stockpiles, and the
fact that vehicles were observed dumping at the edge of a
stockpile, I find that there was a hazard of overtravel or
overturning. Section 56.9301, supra, provides, that in this
situation a "berm" shall be provided. In order to evaluate
whether the berms that were in place complied with Section
56.9301, reference is made to 30 C.F.R. § 56.9000 which defines a
uvbermn as 01 A pile or mound of material along an elevated roadway
capable of moderating or limiting the force of a vehicle in order
impede the vehicle 0 s passage over the bank of the roadway" vv
Section 56o9300(b) supra, provides that a berm shall be at least
mid-axle height of the largest equipment that usually travels the
roadway. According to the testimony of Denk, the berms in issue
were not more than 12 inches high along the perimeter of the
etockpileso Duncan corroborated this estimate. In essenceu
Duncan opined that a berm less than the height of the mid-axle
point of ~ vehicle used at the dump, would be insufficient to
impede the progress of the vehicle.
Price opined that the berms were adequate, but did not
specifically contradict Denkvs estimate of the berms• height.
Rashford's estimate that the berms were 2 to 3 feet high along
the nmajority" of the perimeter of the stockpiles, does not
specifically contradict Denk's testimony, that in some area the
berms were only 1 foot high. Further, even if the berms were
between 24 and 36 inches high, they still were still less than
the mid-axle point of the WA-500 loader, which is 36 inches.
Accordingly, I conclude that the berms were inadequate as they
were less than the mid-axle point of the vehicles that travel on

1645

the stockpiles. Hence, I find that Respondent did violate
Section 56.9301. 3
2.

Significant and Substantial

A WA-500 loader maintains the berms once a day. Also, in
the normal operation of Respondent's quarry, haul trucks back up
to the edge of the stockpiles. There is a 25 foot drop-off from
outer edge of the stockpiles. Hence, the lack of adequate berms
contributed to the hazard of a vehicle going beyond the edge of
the stockpiles and turning over. Such an injury producing event
certainly could have occurred. However, the top of the surface
of each of the stockpiles was flat. There is no evidence that
any of the vehicles in use on the stockpiles had any breaking or
steering problem. Also, there is no direct testimony in the
record, from anyone having personal knowledge based on
observation, as to how close the various vehicles in use
actually, in the normal course of operation, travel to the edge
of the berms. FUrther, there is no evidence in the record that
any vehicles have gone beyond the berms and dropped off the
stockpiles. Within this framework, I conclude that it has not
been established that there was a reasonable likelihood of an
injury producing event. Hence, I conclude that it has not been
established that the violations were significant and substantial.
I find that a penalty of $50 is appropriate for each of the
violations cited herein.
IV.

Citation Nos. 3869961, 3869962, 3869963, and 389965
A.

Citation No. 3869961
lo

Violation of 30 C.F.R.

§

56.14107(a)

As observed by Denku the pinch point of the selfcleaning tail pulley for the C-11 conveyor and its hub were
exposed on both sides, because there was a gap of approximately 4
feet by 6-inches in the guard for the pulley. The opening was
waist high and, according to Denk, a person greasing the pulley 9
©r cleaning under the conveyor with a high pressure hose, would
be within inches of contact with the pinch-point. Also, there
was exposure to the protrusions on the wings of the self-cleaning
belt which 6 according to Denk, can cause injury by sucking a
3

In essence, it is Respondent's argument, inter alia, that
the failure of Denk to take measurements of the berms should
provide the basis for finding no violation. Although I took this
fact into consideration, I reject Respondent's argument since the
weight of the evidence before me, as set forth above, establishes
the height of the berms relative to the mid-axle point of the WA500 loader (See, BethEnergy Mines, Inc., 15 FMSHRC 981, (June 29,
1993)).

1646

person into the pulley, or tearing an extremity. He estimated
the distance of the wing from the guard face as approximately
6 inches. Denk indicated that a walkway was within inches of the
opening.
Denk issued a citation alleging a violation of 30 C.F.R. §
56.14107(a), which, as pertinent, provides that moving machine
parts shall be guarded to protect persons from contacting gears,
pulleys, and similar moving parts that can cause injury.
Rashford, in essence, testified that, normally, repairs and
greasing are performed when the belt is shut down. Rashford
opined that a person would have to intentionally reach into the
opening 6 inches past the guard to be injured, and that a person
falling accidentally against the conveyor would be protected from
injury by the guard. He also testified that in the 14 years that
he had worked at the quarry, no one was injured as a result of
coming in contact with a pulley. Price testified that he was not
aware of any accidents resulting from the opening in the guards.
Based upon the testimony of Denk, I conclude that
inadvertent contact with the exposed pulleys can occur due to the
proximity of the walkway, the large gap in the guarding which
exposed the pulleys, and the location of this gap at waist level.
Based on Denk's testimony, I conclude that an injury can result
from inadvertent contact with the exposed pulleys. Accordingly,
I conclude that Respondent violated 30 C.F.R. § 56.14107(a) as
alleged.
2. Significant and Substantial
In the Citation at issue, Denk alleged that the violation
was significant and substantialo At the hearing, Petitioner did
not adduce evidence specifically addressed to this point.
Although the record herein does establish the violation of a
mandatory safety standardu and that this violation contributed to
hazard of inadvertent contact with the exposed pulleys, the
record fails to establish the reasonable likelihood of the
occurrence of an injury producing event, i.e., inadvertent
contact with the pulleys. 4 In this connection, I note
RashfordPs testimony that those most likely to come in contact
with the exposed pulleys i.e., the persons who grease and repair
the pulleys, perform their duties while the conveyor is not
running. Also, the exposed pulleys are located six inches beyond
the gap in the guarding. Further, there have not been any
accidents at the conveyor resulting from inadvertent contact with
the pulleys through openings in the guarding material. Thus,
4Denk

testified as follows on cross-examination regarding
the likelihood of an injury producing event, i.e., a portion of a
person's body inadvertently going through the hole in the
guarding: "I can't even guess of the likelihood". (Tr.202).

1647

considering these factors I conclude that the record as a whole
fails to establish that an injury producing event was reasonably
likely to have occurred. Accordingly I conclude that it has not
been established that the violation herein was significant and
substantial. (See u.s. Steel, supra, and Mathies, supra)
The record establishes the following: (1) there have not
been any injuries in the past 14 years as a result of inadvertent
contact with the pulleys through the exposed portion of the
guarding; (2) employees who would be most likely to contact the
pulley while applying grease or performing repairs perform these
functions when the belt is not running; and (3) according to the
uncontradicted testimony of Respondent's witnesses, the guards
with openings have been in place for many years, and no citations
had been issued on previous MSHA inspections. Taking these facts
into account, I conclude that Respondent herein exhibited only a
moderate degree of negligence regarding the violation herein.
Also, considering the remaining factors set forth in Section
llO(i) of the Act, I conclude.that a penalty herein of $50 is
appropriate.
,
B.

Citation No. 3869962

This Citation alleges a violation of Section 56.14107(a) in
that there was a hole in a guarding approximate 6 inches by 6
inches on both sides of the guarding of a self-cleaning tail
pulley, and that a pinch point was exposed. Respondent did not
rebut the testimony of Denk with regard to the particulars of the
Citation. Accordingly, for the reasons set forth above,
(IV(A) (2), infra), I conclude that Respondent herein did violate
Section 56.14104(a) as alleged.
Denk alleged this violation to be significant and
substantial. For the reasons set forth aboveu (IV(A) (2)u infra)v
r conclude that it has not been established that the violation
was significant and substantial. A penalty of $50 is appropriate
for this violation.
Citation No. 3869963
As observed by Denk on the date of his inspection, a pulley
for the No. 3 conveyor belt was located on the top level of the
~-E 2-W towero
Access to the tower was by way of a ladder.
According to Denku when a person gets off the ladder at the top
of the tower, he is then approximately three feet from the
guarding for the pulley. When observed by Denk, a half of the
pulley was exposed i.e., there was a gap in the guarding
approximately 4 feet by 6 feet. The pinch point of the pulley
was exposed.
For the reasons set forth above, (IV (A) (1)(2) infra), I
conclude that Respondent herein did violate section 56.14107(a),

1648

supra, as alleged, but that the violation was not significant and
substantial. Also for the reasons set forth above (IV (A) (2),
infra), I conclude that a penalty of $50 is appropriate.
D.

Citation No. 3869964

In essence, Denk testified that he saw two openings in the
quarding of the self-cleaning tail pulley on the 4-X conveyor
belt which exposed the pinch-point. He said one opening was
approximately 6 inches by 1 1/2 feet, and another was 6 inches by
a foot. Respondent did not specifically contradict this
testimony. Essentially, for the reasons set forth above, (IV
(A) (1) (2) infra), I conclude that Respondent did violate Section
56.14107(a), supra, as alleged, but that the violation was not
significant and substantial. I find that a penalty of $50 is
appropriate.
E.

Citation No. 3869965

In essence, Denk testified that a guarding on the c-10 dust
conveyor self-cleaning tail pulley had an opening of
approximately 6 inches by 2 feet on both sides of the guarding,
leaving the pinch-point of the pulley exposed. For the reasons
set forth above, (IV (A) (1)(2) infra), I conclude that Respondent
did violate Section 56.14107(a), supra, as alleged but that the
violation was not significant and substantial. I find that a
penalty of $50 is appropriate.
Vo

Citation Nos. 3869966, 3869969. 3869970, 3869972 and 3869973
A.

Citation No. 3869966

Denk indicated that the drive for the ~ 1/2 foot long shaft
the fan on the dust collector was unquardedu and completely
exoosedo The fan was not in the normal route of travel.
~oweveru according to Denk 0 it was located on a working surface
i.e., the deck, and that persons work there to repair, grease, or
service the fan. Hence, according to Denk, these persons could
be exposed to the hazard of being caught between the rotating
~haitu and the support members of the fanu located 4 or 5 inches
awayu inasmuch as the shaft was located J to 4 inches beyond the
opening. Essentially 0 Respondent did not contradict these
~tatements of Denk. 5
Accordinglyu I find for the reasons set
5

It appears to be Respondent's position regarding citation
Nos. 3869966 0 3869969, 3869970u 3869972u and 3869973, that
inasmuch as Respondent's policy prohibits servicing this
equipment during operation, and the area in question is not
regularly traveled, the likelihood of contact with exposed
hazards is very low. Even though contact might not be likely, it
(continued ••• )

1649

forth above, (IV (A) (1), infra) that Respondent did violate
Section 56.14107(a), supra, as alleged. I find that a penalty of
$50 is appropriate.
B.

Citation No. 3869969

Denk indicated that the No. l belt conveyor head-pulley
drive shaft was unguarded. According to Denk, the shaft is
located within inches of the main travelway alonq the belt.
Hence, persons could be exposed to the hazard of inadvertent
contact with the shaft, and could be hit by protrusions on the
shaft and be injured. Essentially, Respondent did not contradict
these statements of Denk. Accordingly I find, based upon Denk's
testimony, that Respondent did violate Section 56.14107(a),
supra. I find that a penalty of $50 is appropriate.

c.

Citation No. 3869970

Denk indicated that as,ob$erved by him, the stacker belt
conveyor head pulley drive shaft was not guarded. He explained
that persons walking on the walkway would be exposed to the
hazard of contact with moving parts. In the main, his testimony
was not contradicted or rebutted. I thus conclude that it has
been established that Respondent violated Section 56.14107{a),
supra, as alleged. A penalty of $50 is appropriate.
D.

Citation No. 3869972

Essentially it was Denk's testimony that the radial stacker
conveyor head pulley drive shaft was not guarded. Essentially,
Respondent did not rebut this testimony. Thus, I conclude that
Respondent did violate Section 56.14107(a)u supra, as allegedu
and that a penalty of $50 ia appropriateo
E.

Citation No. 3869973

According to the uncontradicted testimony of Denk, there was
a 6 foot by 4 inch gap on both sides of the guarding on the
bottom of a self-cleaning tail pulley 8 exposing the pinch point
of the pulley. The pulley was out of the normal path of travelu
as it was above the actual travelway. It also contained an
extended grease fitting. However, due to the size of the gap,
and the exposure of the pinch-pointu it is conceivable, though
not likelyu that this violation could have led to inadvertent
contact with the pulley. Hence, essentially for the reasons set
forth above, I conclude that Respondent did violate Section
5

( • • • continued)
is clear that such contact can occur. Hence, Respondent's
argument is rejected in deciding the issue of the violation of
Section 56.14107(a), supra.

1650

56.14107(a), supra, as alleged. In mitigation of Respondent's
negligence I note Rashford's uncontradicted testimony that the
guarding came from the manufacturer with the gap as observed by
Denk. A penalty of $20 is appropriate.
ORDER
It is hereby ORDERED that Respondent pay a total penalty of
$820, and it is ORDERED that the following Citations be amended
to reflect the finding that the violations alleged therein are
not significant and substantial: Citation Nos. 3869955, 3869956,
3869957, 3869958, 3869959, 3869961, 3869962, 3869963, and
3869965.

Avr~ber~

Distribution:

Administrative Law Judge

James A. Magenheimer, Esq., Office of the Solicitor, u.s.
Department of Labor, 201 Varick Street, New York, NY 10014
(Certified Mail)
Mr. Salvatore Castro, Safety Director, Buffalo Crushed Stone,
Inc., 2544 Clinton Street, P.O. Box 710, Buffalo, NY 14224
(Certified Mail)
nb

1651

FEDERAL 11I11.E SAFE'l'Y AIID RRAI.TII REVIEW COJUIISS::IOH
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 1 21993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.
0

CIVIL PENALTY PROCEEDING
Docket No. LAKE 93-23
A.C. No. 11-02440-03673

v.

Marissa Mine

PEABODY COAL COMPANY 1
Respondent

SUMMARY DECISION

Before:

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801,
et seg., the "Act," charging the Peabody Coal Company (Peabody)
with one violation of its approved dust control plan under the
standard at 30 C.F.R. § 75.316. 1
The citation at bar, No. 4051293, charges as follows:
The approved dust control plan for this mine was
not being followed at the 202-0 designated area
sample location located at the transfer point
where the 1st Sub Main north belt dumps onto the
main east belto This transfer point is located
59 crosscut. in 'i:.he main east belt entry" The
designated area sample location for this transfer
point is on the south side of the main east belt
an approx. 15 feet west of the transfer point. A
dust pump was observed gathering a sample for this
location with the pump positioned on the north side
of the main east belt and on the east side of the
1st Sub Main north belt approx. 10 feet north of
head roller" With the pump in this location an
accurate sample would not be possible. The air
movement in this area is in the outby direction
in both the 1st Sub Main North and the main east.
This air movement would carry airborne dust away

1

These prov1s1ons, in effect when the charges at issue
were brought, were subsequently repealed November 16, 1992, and
replaced by 30 C.F.R. § 75.307.

1652

from the dust pump. The concentration of respirable
dust from this designated area was 1.8 milligrams
and 1.1 milligrams on last two sampling cycles.
In conjunction with motions for summary decision, the
parties agreed and stipulated to certain facts. These stipulations are attached hereto as Appendix A. It is undisputed
that on September 21, 1992, an authorized representative of
the Secretary issued Citation No. 4051293 at Peabody's Marissa
Mine alleging that Peabody failed to comply with its approved
dust control plan in violation of 30 C.P.R. § 75.316. During
his September 21, 1992, inspection of the Marissa Mine, the
inspector found a dust collection pump collecting a sample
at a transfer point between two conveyor belts. This was a
designated area for dust sampling, but the pump was located
at the wrong position for sampling this area in that the pump
was upwind of the transfer point instead of downwind as required
by the plan and at a less dusty location than the proper sampling
point. When the pump was discovered in the wrong location it
was shut down prior to the end of the shift. However, it is
undisputed that Peabody intended to take a sample for the designated area in question at the improper location. It is also
undisputed that under 30 C.F.R. § 70.208(a), Peabody had until
September 30, 1992, to take a sample for the designated area in
question.
It is well-established law that an operator can be cited
for failure to comply with its approved dust control plan.
Zeigler Coal Company v. Kleppe, 536 F.2d 398, 409 (D.C. Cir.
1976). The plan in this case sets forth the locations for taking
dust samples for designated areas. The requirements to take dust
samples in designated areas is governed by 30 C.P.R. § 70.208(a),
which requires 9 in essence, that the operator take one valid
sample
each bimonthly period.
In addition, 30 C.F.R.

§

75.209(d) provides that:

all respirable dust samples collected by the
operator shall be considered taken to fulfill
the sampling requirements of part 70 8 71 or 90
of this titleu unless the sample has been identified in writing by the operator to the District
Manager, prior to the intended sampling shift,
as a sample to be used for purposes other than
required by part 70, 71 or 90 of this title.
Since it is undisputed that Peabody did not identify
in writing to the MSHA District Manager, prior to the
intended sampling shift at issue, that the dust sample at
issue was intended for purposes other than those required
by Part 70, 71 or 90 of the Secretary's regulations, it is
clear that the dust sampling in this case, which had begun

1653

in a location other than that specified in the approved
dust control plan and was intended to be submitted for the
designated area, was in violation of the plan as charged.
Peabody contends that the dust control plan is violated
only if, and when, a dust sample collected at an improper
location or in an improper manner is actually submitted to
MSHA for analysis or if no proper ~ample is collected and
submitted within the allowed sampling time period. However,
the essence of this violation is the improper location of the
dust sampling with the intent to submit the sample for the
designated area under 30 C.F.R. § 70.208(a), contrary to the
dust control plan and not within the exception provided by
30 c.F.R. § 75.209(d) --not the submission of a defective
sample.
Based upon the information available, I find a civil
penalty of $100 to be appropriate. It is not disputed that
the incorrect placement of the dust pump in this case was
unintentional, though the proper sampling location was clearly
marked. Since the dust conditions would have been underreported
at the cited location, the violation could have had serious
consequences for exposed miners.
ORPER
Citation No. 4051293 is AFFIRMED and the Peabody Coal
Company is directed to pay a civil penalty of $100 within
30 days of this decision.

e Law Judge
Distribution~

Christine Kassaku Esq.u Office of the Solicitor,

u.s. Department of Labor, 230 South Dearborn Street,
Sth Floor 1 Chicago, IL 60604 (Certified Mail)
David R. Joest, Division Counsel, Peabody Coal Company,
1951 Barrett Court, P.o. Box 1990, Henderson, KY 42420-1990
(Certified Mail)
lh

1654

APPENDIX A
1.
on September 21, 1992, Ronald G. Zara (the "inspector")
an authorized representative of the Secretary of Labor, issued
citation number 4051293 at Respondent, Peabody Coal Company's
Marissa Mine, Randolph County, Illinois, alleging a violation of
30 C.F.R. 75.316 in that Respondent had failed to comply with its
approved dust control plan.
2.

[Omitted]

3.
During his inspection of Marissa Mine on September 21,
1992, the inspector observed that a dust collection pump at the
transfer point at which the 1st North Submain conveyor belt
discharges coal onto the Main East belt and the east side of the
1st North Submain belt approximately 10 feet north of the head
roller. The pump was gathering a sample.
4.
Under the approved dust control plan in effect for
Marissa Mine on September 21~'1992, the designated sampling
location for the 1st North Submain-East transfer point was on
the south side of the Main East belt approximately 15 feet
west of the transfer point. The dust pump was collecting a
sample in the wrong location and was upwind from the transfer
point. The proper location of the designated area is downwind
from this same dust generating source and was clearly marked
on September 21, 1992. No sample was being collected in the
proper location.
5.
The inspector found the dust pump in the wrong
location and the dust pump was shut off prior to the end of
the shift for which the sample was being collected.
6.
Under 30 c F.R. § 70.208(a)v Respondent was required
to take a respirable dust sample at each designated area within
a bi-monthly period, but not on specified days. September 21,
1992 was not the last day available for sampling at this
location under the terms of the plan.

1.
Under 30 C.F.R. § 70.209(d)v all respirable dust
samples collected by the operator shall be considered taken to
fulfill the sampling requirements of Part 70, 71 or 90 unless
the sample has been identified in writing by the operator to
the District Manager, prior to the intended sampling shift, as
a sample to be used for purposes other than required by Part 70,
71 or 90.

8.
Respondent did not identify in writing to the
District Manager, prior to the intended sampling shift, that
the sample that was cited on September 21, 1992 was intended
for purposes other than those required by Part 70, 71 and 90.

1655

9.
The Secretary contends that, pursuant to 30 C.F.R.
§70.209(d), a violation of the requirements of an operator's
approved dust control plan occurs if a dust pump is set in a
location other than that specified in the plan and begins
collecting a respirable dust sample at that location when the
operator did not identify, in writing, to the District Manager,
prior to the sampling shift, that the sample was to be used
for purposes other than those required by Part 70, 71 or 90.
10. Respondent, Peabody Coal Company, contends that the
requirements of the approved dust control plan are violated
only if a dust sample collected at an improper location or in
an improper manner is actually submitted to the Mine Safety
and Health Administration for analysis or if no proper sample
is collected and submitted within the sampling time allowed
under the plan.
11. Collection of the dust sample described in citation
had commenced but had not been completed at the time the
inspector issued the citation.
12. At the time the dust collection pump referred to
in the citation was set out and switched on, and up until
the time the pump was discovered in the wrong location, it
was Respondent's intent to collect a respirable dust sample
for submission pursuant to Respondent's Bi-monthly dust
sampling obligations under 30 C.F.R. Part 70.
13.

[Omitted]

14. The Federal Mine Safety and Health Review Commission
has jurisdiction over these proceedingso
l5o
Respondent~ Peabody Coal Companyv owns and operates
the Marissa Mine, a bituminous coal mine located in st. Clair
County, Illinois.
16o

Respondent's operations affect interstate commerce.

l7o The Marissa Mine produced 1,972,612 tons of bituminous
coal from January 1, 1991 through December 31, 199lo
l8o
Respondentu Peabody Coal Company, produced over
10 0 000 0 000 tons of bituminous coal at all of its mines from
January lu 1991 through December 31, 1991.

19. The payment of the $50 single penalty assessment
will not affect Respondent's ability to continue in business.

1656

20. The location whe:re the dust-sampling pump was found
on September 21, 1992, which was the subject of Citation
No. 4051293, was upwind from the transfer point, in a less
dusty location than the proper location for designated area
202-0, which was downwind from the transfer point, and·
therefore was at a more favorable location for Respondent.
21. The attached mine "stick map" is a true and accurate
depiction (not drawn to scale) of the locations where the
dust-sampling pump, which is the subject of citation No. 4051293,
was found on september 21, 1992, and for where it should have
been located according to Respondent's approved dust control
plan.
22. The bimonthly dust-sampling period required by
30 C.F.R. § 70.208 for a designated area for the period in
which Citation No. 4051293 was issued on September 21, 1992
through September 30, 1992.
(Copies of the citation and the approved dust control plan,
Exhibits A and B to the Joint Stipulation, have been omitted
from the stipulations.)

1657

003-0

006-0

--

~-~
...

D.A. 205-0

001-0
D.A. '200-0
EXHAUST

0 AIRSHAFT :
EXHAUST
AIRSHAFT

0
--

--~~-·~-

MINE OPENING

0

!

...,__

X 'il-""'P .;""'

...

INTAKE
AIR SHAFT

0

TRANSFER POINT •

LOADING POINT A
DIRECTION OF AIR
AIR REGULA TOR
R
DESIGNATED AREA X
DA REMOVED BY MSHA ®

PI
M~

I.l
N[

DE

I'BDBIU\L JaD SUBTY UD BBAL'l'B RBVJ:BW COJOaSSl:OB
OFFl:CB OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 131993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,
Petitioner

CIVIL PENALTY PROCEEDINGS
:

:

Docket No. PENN 92-814-A
A.C. No. 36-04281-03790

0

Vo

0

Dilworth Mine
CONSOLIDATION COAL COMPANY,
Respondent

:

.
:

Docket No. WEVA 92-1207-A
A.C. No. 46-01968-04027 R
Blacksville No. 2 Mine

DECISION
Appearances:

Roberts. Wilson, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia for
Petitioner;
Daniel E. Rogers, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Feldman

The above captioned proceedings are before me as a result of
petitions for civil penalty filed by the Secretary of Labor
pursuant to section lOS(d) of the Federal Mine Safety and Health
Act of 1977u 30 u.s.c. § 801, et seq., (the Act). These cases
were called for hearing on June 22, 1993, in Washington,
Pennsylvania. The parties' stipulations concerning my jurisdiction to hear these matters and the pertinent facts associated
with the civil penalty criteria contained in section 110(i) of
the Act are of record. At the hearing, the parties moved to
settle Citation No. 3702203 which is the subject of Docket No.
PENN 92-814-A. The parties~ motion was granted on the record and
the approved settlement agreement is incorporated in this
decision. The parties' post-hearing briefs with respect to
remaining Docket No. WEVA 92-1207-A have been considered in my
disposition of this proceeding.

1659

Docket No. WEVA 92-1207-A

Docket No. WEVA 92-1207-A concerns Citation No. 3315474
issued by Inspector John Baniak on March 11, 1991, for violation
of the mandatory health and safety standard contained in
section 75.1405, 30 C.F.R. § 75.1405, 1 based upon his observations of inoperable uncoupling devices on ten mine cars observed
at the rotary dump at the respondent's Blacksville No. 2 Mine. 2
Inspector Baniak attributed this violation to a moderate degree
of negligence on the part of the respondent. The Secretary
initially proposed a civil penalty assessment of $259.00.
At trial, the respondent stipulated to the fact of
occurrence of this violation. (Tr. 11-13). The Secretary now
argues that the degree of the respondent's culpability,
manifested by the numerous mine cars cited for violation and a
history of similar violations, warrants the imposition of a
larger penalty than that initially proposed. The respondent
asserts that the subject violation should not be designated as
significant and substantial as inoperable decouplers have not
resulted in any recent serious injuries.
In view of the respondent's stipulation to the fact of the
violation, the pertinent facts can be briefly stated. The
Blacksville No. 2 Mine is a shaft mine. Coal extracted from the
face is loaded on a belt and transported to the tipple. There
the coal is loaded into mine cars that are coupled together for
transportation over the loaded track to the rotary dump where the
cars are inverted and unloaded. {TR. 105)o The unloaded cars
then proceed to the empty track where groups of cars are

Section 75.1405 provides~ in pertinent part 8 that "[a]ll
haulage equipment
shall be equipped with automatic couplers
which couple by impact and uncouple without the necessity of
persons goina between the ends of such eguipment.'1 (Emphasis
added).
1

ooo

2 Docket

No. WEVA 92-1207-A was reassigned to me from Judge
Melick on Jun~ 8, 1993. Prior to this reassignment, in an Order
released April 20, 1993, Judge Melick denied the Secretary's
Motion for Summary Decision. At the commencement of trial, the
Secretary presented oral argument in support of his request to
renew his Motion for Summary Decision. (Tr. 17). The motion was
denied. (Tr. 32-33).

1660

uncoupled and transported back to the tipple by the motorman.
(Tr. 36-42). The cars are uncoupled by mine personnel using a
handle located at the end of each car. The handle is attached to
a chain which goes through a metal eye. Pressing down on the
handle raises the chain disengaging the cars. (Tr. 46-47).
Inspector Baniak testified that of the ten cars cited in
Citation No. 3315474, eight had broken chains and two had broken
eyes. The handles on these cars were inoperable and in the down
position. (Tr. 48). Baniak stated that in order to decouple
these cars, a miner would have to go between the cars, which
weigh approximately 15 tons when loaded, to manually raise the
metal eye or use a bar to raise the eye to separate the cars. 3
This could subject the miner to serious foot or hand injuries if
an extremity was caught in the eye or lever. (Tr. 50). A miner
could also sustain critical or fatal crushing injuries if the
motorman started the train of cars without being aware that a
miner was in between cars in the process of manually decoupling.
(Tr. 50-51). Baniak referred to two previous fatal accidents
associated with miners positioned between mine cars. (TR. 57-58}.
Significant and substantial
It is well settled that a violation is properly designated
as significant and substantial "if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature.n Cement Division,
National Gypsum COoe 3 FMSHRC 822~ 825 (April 1981). In Mathis
Coal Co.u 6 FMSHRC 1 9 3-4 (January 1984) 9 the Commission further
explained~

In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary
of Labor must prove~ {1) the underlying violation
of a mandatory safety standard; (2) a discrete
safety hazard -- that is, a measure of danger to
safety -- contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed
5

Baniak referred to these safety bars as "sissy bars."
(Tr. 62). He .stated: that these bars were not always readily
available (tr. 60); that using these bars sometimes required the
miner to go between cars to position the bar in the eye (tr. 52);
that use of these bars is more time consuming than manual
decoupling (tr.62); and that these bars cannot be used if the eye
is broken (tr.53, 60). (See fn. 6, infra).

1661

to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
In evaluating the potential for serious injury, the hazard
created by the violation must be viewed in the context of
continued mining operations, i.e., the frequent necessity to
decouple mine cars. Halfway. Inc., 8 FMSHRC 8, 12 (January
1986). In this case, the hazard contributed to by the violation
is, in essence, the attractive nuisance created by defective
decoupling devices. Consequently, miners are tempted to go
between coal cars to attempt manual decoupling. Decoupling
occurs routinely at the tipple and at the rotary dump.
(Tr. 102-103). Disengaging mine cars is also necessary in the
event of a derailment. Jeffrey Todd Moore, the respondent's
safety supervisor, testif±ed that such derailments occur
approximately once each month. (Tr. 167). Baniak testified that
he has observed miners between cars attempting to uncouple them.
(Tr. 56).
The significant and substantial issue as it pertains to this
violation is not a matter of first impression. In addressing
similar violations committed by this respondent, Commission
Judges have consistently concluded that defective decoupling
devices pose a discrete safety hazard that is likely to
contribute to serious or fatal injuries. See Consolidation Coal
Company, 14 FMSHRC 1450 (August 1992): Consolidation Coal
Companyv 13 FMSHRC 1314 (August 1991).
Moreover 0 the potential fatal consequences of the violation
in issue are not speculative,, On k\pril llq 1974 u an employee of
the respondentus Monitor Noo 4 Mine was fatally injured
attempting to uncouple haulage cars. The fatal injuries were
sustained when the victim reached between cars to manually
disconnect them because of inoperable decoupling devices.
Pittsburgh Coal Company (Division of Consolidation Coal Company)q
1 FMSHRC 1468 (October 1979)o In Pittsburgh, the Commission
concluded that 08 all uncoupling devices [must] be maintained in
operable condition 1e so as not to induce a miner to go between
haulage equipmento 1 FMSHRC at 1469.
Despite the inoperable decoupling devices that contributed
to the April 1974 fatality of an employee, the respondent
contends that ~he passage of time, purportedly without the
reoccurrence of serious injury under similar circumstances,

1662

transforms this violation into a less serious transgression. 4
such an interpretation gives new meaning to the term "remedial
nature" of the Mine Act and cannot be reconciled with the
legislative intent. The fact that a serious injury associated
with inoperable decouplers may not have recently occurred at the
respondent's Blacksville No~ 2 Mine is fortuitous and must not be
considered as a mitigating factor. 5 See Ozark-Mahoning Company,
8 FMSHRC 190 (February 1986). Significantly 6 the history of a
relevant fatality is a testament to the serious risk posed by
this violation.
I am similarly unconvinced by the respondent's assertion
that the training provided to mine personnel and the warning
"CAUTION -- STAY OUT" stenciled between the mine cars (as
depicted in Gov. Ex. 2) are appropriate mitigating
circumstances. 6 (Tr. 104). As·the Commission has stated,
4

In his opening statement, counsel for the Secretary
presented uncontroverted evidence of 66 mine cars cited for
defective decoupling devices at the respondent's Blacksville No.
2 Mine from March 1990 to March 1991 6 the 12 month period
preceding the issuance of Citation No. 3315474. The respondent
argues that the absence of injuries despite the frequency of
violations is evidence that an injury is not likely to occur.
5 The

respondent contends that there has not been a relevant
in H:s Blacksville No.
E!Iine during the past seven years.
(Respondent 0 s post-hearing brief pages 2-3.) This argument is
specious in that
fails to consider whether relevant injuries
have occurred in other mines that illustrate the serious hazards
associated with defective decouplers. In addition, I reject the
notion that a showing
an actual relevant serious injury is a
prerequisite to establishing
and substantial
violation.
:!.llilJ

6

The respondent also referred to '"sissy barswu that are
located
various locations throughout the mine that can be used
to raise the metal eye to decouple cars. Moore testified that
these bars enable miners to decouple without extending themselves
between mine cars.
(Tro 165-166). The effectiveness of these
bars as a substitute for operable automatic decoupling devices is
questionable. Moreover, I suspect that a miner tempted to go
between cars despite caution signs may be disinclined to use a
"sissy bar" if one were available. Thus, this alternative method
of decoupling does not offset the significant and substantial
nature of the violation in issue.

1663

"[w]hile miners should, of course, work cautiously, that
admonition does not lessen the responsibility of operators, under
the Mine Act, to prevent unsafe conditions." Eagle Nest, Inc.,
14 FMSHRC 1119, 1123 (July 1992}. Therefore, the significant and
substantial designation in Citation No. 3315474 shall be
affirmed.
Meg1igence
The Secretary, citing several factors, seeks to increase the
respondent's underlying degree of negligence associated with
Citation No. 3315474 from moderate to high. In this regard, the
Secretary points to the respondent's history of previous violations as evidence that the respondent had notice of the violative
condition. Significantly, despite testimony that the respondent
has a policy of marking and removing from service cars with
defective decouplers (tr. 169), the cited cars remained in
service at the time of Baniak's inspection. (Tr. 28-29).
Moreover, as noted above, the respondent's reliance on training
to discourage miners from positioning themselves between cars
does not overcome the apparent absence of an effective
maintenance program for the decouplers given the history of
violations. 7 (Tr. 27). Accordingly, I find that the Secretary
has established by a preponderance of the evidence that the
respondent's continued operation of the subject mine cars
manifested a high degree of negligence.
civil Penalty
In considering the statutory criteria for assessing civil
penalties contained in section llO(i) of the Acto I note that the
respondent is a large operator with a history of similar
violations. The fact that these violations have persisted
despite the imposition of previous penalties and the high degree
of negligence and serious gravity associated with this violation
warrant a civil penalty in excess of the minimal penalty
initially proposedo I also note that the initial proposed
penalty was cumulatively assessed in that the subject citation
noted ten mine cars in violationo However, applying the facts of
this case to the statutory criteriau I conclude that an
individual assessment for each violative decoupling device is the

7 The

respondent conceded that it is obliged to provide
proper training to all personnel and that such training is not
exculpatory with regard to liability imposed under the Mine Act.
(Tr. 173-174).

1664

appropriate sanction. 8 Therefore, I am imposing a civil penalty
of $3,000 for the numerous violative conditions noted in Citation
No. 3315474.
Docket No. PENN 92-814-A
Finally, as noted above, the parties moved to settle
Citation No. 3702203, the only citation in issue in Docket No.
PENN 92-814-A. The terms of the proffered agreement call for the
Secretary to modify the subject citation from a 104(d) (1)
citation to a 104(a) citationu thus reducing the respondent's
underlying degree of negligence. The significant and substantial
designation for this citation remains. The respondent has agreed
to pay a civil penalty of $500. This settlement agreement is
consistent with the criteria in Section llO(i} of the Act and was
approved on the record.
ORDER

Accordingly, Citation No. 3315474 is modified to reflect a
high degree of negligence and is AFFIRMED as modified. The
settlement agreement modifying citation No. 3702203 from a
104(d) (1) citation to a 104(a) citation is APPROVED. Consequently, the respondent is ORDERED to pay a total civil penalty
in the amount of $3,500 in satisfaction of the two violations in
issue. Payment is to be made within 30 days of the date of this
Decision, and, upon receipt of payment, these docket proceedings
are DISMISSED.

!1~.

~erold
{!

(]")

-------5-an----

Feldman
Administrative Law Judge

8

This result is consistent with Judge Weisberger's
assessment of $200 for each car cited for defective decouplers in
Consolidation Coal CompanY, 14 FMSHRC at 1455.

1665

Distribution:
Roberts. Wilson, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, Virginia
22203 (Certified Mail)
Daniel E. Rogers, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, Pennsylvania 15241-1421
(Certified Mail)
dcp

1666

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

AUG 131993
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 92-953
A.C. No. 46-00506-03527

v.

STEELE BRANCH MINING,
Respondent

.
.

Surface Mine No. 927

DECISION
Appearances:

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

u.s. Department of Labor, Arlington, Virginia, for
the Petitioner;
Roger L. Sabo, Esq., Schottenstein, Zox & Dunn,
Columbus, Ohio, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil
penalty filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977[ 30 U.SoC. § 820(a}v seeking a civil penalty assessment of
$9v500 for an alleged violation of mandatory safety standard
30 C.F.R. § 77.404(a). The respondent filed an answer contesting
the alleged violation and a hearing was held in Charleston, West
Virginia. The parties filed posthearing briefsg and I have
considered their arguments in the course of my adjudication
this matter.
Issues
The issues presented in this case are (1) whether the
conditions or practices cited by the inspector constitute a
violation of the cited mandatory safety standard, (2) whether
the violation was "significant and substantial", and {3) the
appropriate civil penalty to be assessed for the violation,
'taking into account the statutory civil penalty criteria found
in section llO(i) of the Act. Additional issues raised by the
parties are identified and disposed of in the course of this
decision.

1667

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seg.
2.

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

3.

Commission Rules, 29 C.F.R.

§

§

820(i).

2700.1 et seg.

Discussion
This matter concerns an accident that occurred at the
respondent's mine site on April 23, 1991, when the operator of a
Model 16 caterpillar Road Grader, (Rayburn Browning}, suffered
fatal injuries when he jumped from the machine and was run over
by the right front tire. According to the information developed
during the course of the accident investigations, Mr. Browning
had completed his grading duties and was driving the grader, with
the blade in the raised position, up a haulage road toward the
equipment parking area. The grader engine stopped for some
unknown reason while he was travelling up the roadway and it
began traveling backward down the grade. Mr. Browning jumped
from the machine and was run over, and the machine continued in
the reverse direction down the roadway and it came to rest
against the highwall in an upright position. After the
conclusion of the MSHA investigation, MSHA Inspectors Donald R.
Mills and James E. Davis issued the contested section 104(a)
"S&S" Citation No. 2956461, on April 29, 1991, and the cited
condition or practice states as follows:
The investigation of a fatal surface machinery (Grader)
accident at this mine revealed that the Caterpillar
grader involved 9 Model No. 16u Serial No. 49G915, was
not maintained in a safe operating condition, in that
based on the specifications of the manufacturer the
fully charged accumulator provides for approximately
five brake applications after the diesel engine had
been shut off. The investigation revealed through
testing that only one brake application was provided
after the diesel engine was shut off. Also, the brake
pressure gauge, located on the instrument panel in the
cab of the grader (Company No. 03309) was found to be
inoperative. The operator removed the grader from
service for repair.
Stipulations
The parties stipulated to the following (Tr. 8-10):
1. The respondent owns and operates the subject mine,
and the mine is subject to the Act.

1668

2. The presiding Administrative Law Judge has
jurisdiction to hear and decide the matter.
3. The inspectors who issued the contested citation
are duly authorized representatives of the Secretary of
Labor, and a true and authentic copy of the citation
was served on the respondent.
4. The imposition of the proposed civil penalty
assessment will not affect the ability of the
respondent to continue in business.
5. Although the mine may no longer be in operation, at
the time of the events in issue in this proceeding, the
respondent's mining operation was a small-to-medium
size operation.
Petitioner's Testimony and Evidence
Donald R. Mills, retired former MSHA inspector, testified
that he was employed as an electrical inspector before retiring
and that he also served as an accident investigator. He stated
that he was trained to inspect heavy equipment, including braking
systems and steering systems, and that the training took place at
the Beckley Academy and in the field offices (Tr. 22-23).
Mr. Mills confirmed that he visited the mine on April 25,
1991, to assist in the investigation of a fatality involving a
road grader. He was part of an accident team that included MSHA
inspectors, the UMWA, and company representatives. He explained
how the investigation was conducted, and he confirmed that the
grader was moved from the area where it had come to rest against
the highwall and moved to another location where it was restarted
and the brakes examined (Tro 24-26)o He confirmed that the
brakes held the machine on a grade with the engine running when
it was tested (Tr. 26). He identified a copy of the citation
that he issued, including the extensions and modifications
(Exhibit P-2u Tro 28-3l)o
Mro Mills stated that after the grader was tested on a grade
where the accident occurred, it was taken to a larger level area
for further testingo He stated that he directed the investigation and that a mechanic from Walker Machinery Company provided
the tools and gauges used to test the grader. Mr. Mills stated
that the investigation revealed that with the engine in the off
position there was only "one brake application" on the machine.
He explained that "when you hit the brake pedal one time with
your foot, you only had the one. On the second, third, fourth
application, you had no braking ability whatsoever" (Tr. 32). He
further explained that "the manual states if the accumulator is
fully charged, it has approximately five brake applications"

1669

(Tr. 33). He reiterated that with the engine running, one brake
application would hold the machine and that as long as the engine
is running, a pump provided hydraulic pressure for brake application (Tr. 34). However, when the engine quits, there is a loss
of hydraulic brake pressure, but the braking system is supposed
to continue functioning when the engine quits (Tr. 35).
Mr. Mills identified a copy of a portion of the grader
equipment manual which was faxed to his office, and he quoted the
manual portion which states that "Fully charged, the accumulator
provides for approximately five brake applications after the
diesel engine has been shut off" (Exhibit P-3; Tr. 37).
Mr. Mills confirmed that he cited a violation of
section 77.404(a), which requires that machinery be in safe
operating condition, and he believed that the failure to provide
approximately five brake applications once the engine had been
shut off rendered the machine unsafe "because you can never tell
when the engine is going to shut down for any reason; contaminants in the fuel, dirt, water. When you have an engine shut
down, if a brake don't work, you're in trouble. It's as simple
as that" (Tr. 41).
Mr. Mills determined that the violation was significant and
substantial "because this grader is operated uphill, downhill,
ten percent grades, on the level, around curves. Any terrain
they encounter at the job, this machine is used on it" (Tr. 42).
The cited condition would affect the performance of the grader
"by simply not providing brake application in the event of an
emergency", such as a loss of power if the engine shuts down
going uphill, downhill, or around curves (Tr. 42). Mr. Mills
confirmed that the grader is equipped with a park brake,and he
stated that the park brake is designed to secure the machine once
it has been brought to a stop and that its primary function is to
secure the machine in place once the operator has stopped it.
The park brake will operate with the engine off because it is a
mechanical device activated by a lever within reach of the
operatoro He believed that a park brake could possibly stop the
machine while it was moving but did not know whether it was
designed to stop the weight of the machine in question
(Tro 43-45).
Mr. Mills stated that he based his finding that the
violation caused the fatality on the fact that the machine was
operating on a 9.6 or 10 percent grade, and a statement made in
the course of the investigation that the accident victim
(Browning) had stated that the engine shut off on the hill and he
could not hold his brakes (Tr. 46). Mr. Mills identified a copy
.of the accident report of investigation, and he confirmed that he

1670

was familiar with it (Exhibit P-5; Tr. 48). He confirmed that he
did not write the report, but that he assisted in the investigation, has read the report, and he agreed with it (Tr. 49-51).
Mr. Mills confirmed that the report indicates that "the
service brake was not maintained in a safe operating condition"
(Tr. 52). He explained that the accumulator, along with other
component parts, make up the machine braking system. In his
opinion, "the cause of this accident I believe to be the
accumulator not being fully charged" (Tr. 52). He stated that
"if you're driving up a hill and your engine stalls and your
brakes doesn't hold, you've got a problem" (Tr. 53). He
explained that with the engine shut off, only one brake
. application was left, and if the operator pumped the brake pedal
after the first application, there was nothing to provide further
brake application with the engine shut off (Tr. 53). He also
indicated that the brake pressure gauge, which has red and green
light signals, was inoperative, and he conceded that a defective
gauge could give false signals as to the condition of the brakes
(Tr. 55). He stated that after the machine was removed from the
initial testing area at the scene of the accident and taken "to
the top", the brake gauge did not work because "it should have
been in the green" (Tr. 56).
Mr. Mills confirmed that he made a negligence finding of
"moderate" (Tr. 57-58). He stated that he discussed the machine
manufacturer's specifications with the respondent's master
mechanic, Wiley Queen, and that Mr. Queen told him he did not
know about the manual requirement for five brake applications
(Tr. 59). Mr. Mills did not believe that the accident caused the
violation because there was no damage to the braking system and
it. held the machine on the hill where the accident occurred
• 59)
He confirmed that the citation was abated after a
new brake gaugev accumulatorv and four braking assemblies were
installed on the machine (Tr. 61).
c

On cross-examination, Mr. Mills confirmed that he did not
conduct the employee interviews during the accident investigationu and that MSHA Inspector James Davis conducted the
interviews and summarized what the employees told him (Tr. 63).
Mr. Mills explained that he heard some of the statements made by
employees intermittently and that he was "in and out" of the
interview room (Tr. 64-65). Mr. Mills stated that it was his job
inspect the grader, and that other individuals were present
when this was done (Tr. 66).
Mr. Mills identified a copy of a Caterpillar/Walker
.Machinery Incident Report (Exhibits P-5 and R-5), and confirmed
that he had seen it (Tr. 67). He confirmed that the respondent's
report was an attempt to recreate what took place at the time of
the accident. He stated that the "skid marks'' shown in MSHA's

1671

report is an indication that they were caused by "tires sliding"
similar to "when a car hits it's brakes and it will skid"
(Tr. 70).
Mr. Mills stated that on the afternoon of April 24, 1991, he
checked the grader hydraulic oil level and found that it was
five-and-one-half inches above the bottom of the tank, that the
fuel level was ten inches from the top of the tank, the engine
oil was full, the transmission was full, and the differential oil
was full. He also determined that the front wheels were turned
approximately twenty to thirty degrees to the left, the transmission selector was in second speed forward, the hydraulic
control levers were in the "hold" position, and the machine blade
was approximately 16 inches above ground level, indicating that
the machine was not actually doing any grading work at the time
of the accident. The park brake was in the "off" position, and
the engine governor, which is the accelerator/decelerator pedal
located on the floor of the operator's cab, was in the "shut off"
position (Tr. 71-74).
Continuing with his explanation of the tests on April 24,
Mr. Mills confirmed that the report states that "The grader was
started and brief initial system function tests performed" and
that the "systems appeared to be functioning properly" and that
the park brake was set and held the machine at the grade location
which was approximately 10 degrees. The report also reflects
that the machine was moved under its own power to another
location with safety tractors attached. The following day,
additional tests were made, and the pressure on the wheels was
determined to be 650 psi with the engine running. When the
engine was shut off, the pressure was again 650 psi on the first
applicationp and avafter thatv we got zero pressuren (Tro 75).
Mr. Mills also indicated that the nitrogen precharge in the brake
accumulator was testedv and it indicated 600 psi, and that the
~ark brake held the machine while it was moving (Tr. 76).
Mr. Mills confirmed that he is an electrical inspector and
is not a certified mechanic, but that he does a lot of work with
electrical power equipment in connection with heavy equipment
accident investigations (Tr. 77). Referring to the grader manual
in questionu Mr. Mills stated that a fully charged accumulator
should provide approximately five brake applications, and in his
opinion aeapproximately 11 includes a range of six to three applications, but not less than three (Tr. 78). He stated that a
Walker Machinery representative informed him that an accumulator
which provided three brake applications needed to be repaired
(Tr. 79).
Mr. Mills stated that the Caterpillar grader in question has
an operator's manual, a service manual, and a parts manual. He
confirmed that he has his own operator's manual, and that he was
also familiar with the lubrication maintenance guide (Tr. 79-80).

1672

He confirmed that in the course of his investigation he did not
consult the operator's manual or the parts and lubrication
manual, and he did not know whether the same phrase "approximately five applications" is found in those manuals (Tr. 8l)o
Mr. Mills stated that he would not expect mine management to test
the machine on a grade by starting the engine and then shutting
it off to ascertain the number of applications provided by the
accumulator (Tr. 83).
Mr. Mills explained that the accumulator's function is to
build up pressure for the application of the brakes, and it
stores energy and may assist in putting the brakes in a quicker
mode so that the machine can stop quicker. A further function of
the accumulator is to store energy and provide braking application when the engine isn't building up enough pressure to apply
the brakes with the oil pressure (Tr. 84-85). He confirmed that
the grader braking system is located on the four rear wheels, and
that the front wheels have no braking system, but he was not
familiar with the industry standards or requirements for graders
(Tr. 92) .
Mr. Mills reviewed some of the conclusions found in the
accident report prepared by Inspector Davis. Mr. Mills confirmed
that once the grader was started during his investigation, it did
not stall again. He also confirmed that his investigation determined that the accident victim was an experienced and safe grader
operator who conducted daily checks of his equipment (Tr. 98).
Mr. Mills was also told that the grader operator would report any
problems to one of the mechanics and that the grader involved in
the accident was one that was normally not used (Tr. 98). He
confirmed that the report reflects that Mr. Browning shut down
~he grader that he normally operated because of a problem
"TJ::o 99-100) o

Mr. Mil
confirmed that he did not check the grader
maintenance records as part of his accident investigation
(Tr. 116-117). He also confirmed that he did not advise the
?espondent as to what needed to be done to abate the violation
and only pointed out what was wrong with the braking system.
The decision to replace all of the brake pads was made by the
respondent, and neither Mr. Mills or any of the other MSHA
inspectors told the respondent what needed to be done before
they would certify the grader as operable (Tr. 123-124).
In response to further questions, Mr. Mills stated that he
a little bit" of some of the interrogation of people
during MSHA's investigation, and that he also heard about certain
statements by the accident victim that the brakes had failed
while he was operating the machine. He could not recall when he
heard this, and he thought that a foreman may have made the
statement (Tr. 125-126). Referring to the sketch and skid marks
shown in MSHA's accident report, Mr. Mills stated that the marks
~heard

3

could have been caused by something other than braking, but that
he did not see the marks and was not looking for them because he
concentrated on the machine (Tr. 131).
Respondent's Testimony and Evidence
William Roberts, equipment manager, Geupel Construction
Company, testified that this company is a construction and mining
company engaged in highway construction, coal mining, and grading
and drainage projects, and it was the operator of the mine
involved in this proceeding. His duties included "overseeing the
equipment, repairs, and purchasing and selling of equipment"
(Tr. 136). He confirmed that there were two motor graders on the
property, that he "has been involved" with graders since 1964,
and he explained what the grader was used for and how it is
operated (Tr& 137-140). He also confirmed that there are three
manuals for the Model 16 Caterpillar grader (Tr. 141).
Mr. Roberts identified exhibit R-6, as the operating and
maintenance manual for the grader, and it contains information
concerning the functions of the machine, the grease points, and
instructions for its safe operation. Referring to page 92, of
the manual, he described the brake accumulator and how it
operates (Tr. 141-143).
Mr. Roberts identified exhibit R-8, as the grader
lubrication guide and maintenance manual, which is used by the
equipment operator and mechanics for routine and normal
maintenance and minor repairs (Tr. 144-145). He stated that a
mechanic or lubrication man would service the machine and that
the operator would keep the mechanic or foreman advised as to any
problems with the equipment (Tr. 145
Mr. Roberts referred to
page 9 and 45
the manual in quest
and quoted from the
information pertaining to the brake accumulator (Tr. 145-146).
o

Mr. Roberts identified exhibit R-9r as a portion of the
grader service manual titled "Hydraulic System and Brakes
Specifications 0uu and he stated that the manual is used by
mechanics who are making major repairs on the machine (Tr. 147).
Referring to page four of the manual,and in particular the
sentence that reads v1 Fully charged, the accumulator provides for
approximately five brake applications after the diesel engine has
been shut ofDi u Mr. Roberts stated that he has not been able to
find any manual instruction that states that one is supposed to
test the brake accumulation system for five applications after
the engine has been shut off (Tr. 148). In response to a question
as to how one would test the grader, Mr. Roberts responded as
follows at (Tr. 149-150):
THE WITNESS: The way you would make this test is that,
of course, you would normally have your machine at

1674

operating temperature, your oil warm, and what have
you. You would start the engine and assume that
everything is working properly. Then you shut the
engine off and you make a brake application, let off of
it, make another brake application, let off of it.
JUDGE KOUTRAS:
experience?
THE WITNESS:
JUDGE KOUTRAS:

Have you ever done such a test in your
Yes.
All right, Mr. Sabo.

BY MR. SABO.

Q. When you make that application, does it matter what
shape or form the grader is in?
A.

You mean the rest of the grader?

Q. Yes.
or slope

I mean, does it matter whether it's on an incline

A.

It has no bearing on that.

No.

Q. Does the operator in the field know that he would
test this way or test an accumulator? How would he
know what to do?

A.

I don't really know whether he would or not.

Q.
There is nothing within the manual that you found
·that talks about a testing procedure after the engine
is shut off.

A.

That is correct.

Mr. Roberts explained that after the citation was issued the
accumulator was inspected by a Walker Machinery representative
and 09 the accumulator was working properly.
It still had a
nitrogen charge in it, the proper amount.
But for some reason,
they thought we ought to replace it and so we put the new
accumulator on 99 • He further explained that the new accumulator
"did not help the situation any as far as increasing the amount
of the applications that you would take . . you know, the
applications of the brake system with the engine shut off. And
then from that point, on, we took and changed all four brake
assemblies on 'the machine.
I'm assuming that they come up to the
five applications.
I don't even know this" (Tr. 151). He
further explained as follows at (Tr. 152-153):

1675

so the only thing it could possibly be that changes the
amount of applications is the wear in the disk which
controls -- as the disk wears a little more, the
piston, the hydraulic piston, has to travel farther to
make the application, which, in turn, reduces the
amount of applications that you get out of the
accumulator.
The accumulator, itself, is not -- you know, is not a
very big thing. The accumulator basically was not put
on the machine for excess applications. There is other
manufacturers's that make -- have a similar setup to
this that don't even mention how many applications that
you should have after the engine is shut off. It's
strictly -- they're put on there as a function to make
the brakes work.
There is always, with the engine running, there is
always a preach (phonetic)· amount of oil to apply the
brakes, to give some\lhere for the pump, when it builds
up the pressure, to relieve itself.
Againp I'll go back to the water tank business. If you
had a water tank, you know how your water pump kicks on
and kicks off. If you didn't have a chamber like this
to hold a surge of oil, you would be getting into the
same thing on the brakes.
And it's just strictly a reserve amount of oil for a
brake application, more than it is -- it says
approximately five applications. So whatever
approximately is just depends on -- as the brakes wear 1
it. doesnft mean theyfre inoperable 7 but this amount of
applications you have you lose
the -- well, it can
get to the point that you could -- Well, you just
wouldn 8 t even have any brakes with one application. I
meanu if the brakes are wore outu they 8 re wore out.
It 0 s not the case on this machineo
Mro Roberts did not know how long the condition existed, and
he stated that the machine had previously been inspected by
Federal and state inspectors in February, 1991 7 and that it had
been operated only 18 hours since those inspections. He did not
know if the prior inspections included the accumulator or the
braking system. Other than a daily walkaround inspection by the
machine operator, Mr. Roberts was not aware of any inspection
records for the machine, and he has never seen any daily
walkaround inspection reports (Tr. 155). He confirmed that the
machine operator is not required to be familiar with the service
manual, but that a mechanic and an operator would be exp~cted to
comply with any applicable manual instructions and to correct any
problems (Tr. 156). He did not know if the accumulator precharge

1676

pressure check required every 500 service meter hours by the
manual, at page 92, and a "recharge if necessary" was ever done
for the grader in question (Tr. 157).
In response to questions concerning the need for brake
applications after the machine engine is off, Mr. Roberts
responded as follows at (Tr. 157):
A. I have no idea. Like I say, there is other
manufacturers that make the same system that do not
even mention this part of it.
Q. on those other pieces of equipment, do the brakes
work with the engine off?

I don't know this. They would have the same -they would have the same tendency to work as this does.
It would depend on, strictly, how big an accumulator
they put on and this, that and the other thing, you
know.

A.

Well, in your experience with heavy equipment, do
the brakes usually work with the engine off?

Q.

A.

To be truthful with you, I never tried.

And, at (Tr. 160-161):
Am I to understand that you don't know whether or
not the brakes can stop this equipment or the
accumulator -- am I to understand if the engine quits,
that you donPt know whether or not the accumulator and
brakes together will stop it?

Q.

Ao
Ohu it will stop it, but that is not what he asked
me. He asked me if I had ever tried to stop one. I've
never tried to stop one without the motor running.
Qo
DidnPt he also ask you a question, if the
accumulator would not function, would it stop the
equipment after the engine quit?

Ao

Noo

If he did, I didnRt understand it that way.

Qo

Wellu let me ask you that question.

A. If the accumulator is not functioning and the
engine is stopped, the machine would not stop.
Q.

It would not stop.

1677

A. No. You have no brake pressure. You would have no
pressure to apply the brakes, and it would not stop.
Thomas Goodney, self employed consulting engineer with his
own company, Forensic Engineering Services, was admitted as an
expert witness, and he confirmed that his work includes
conducting accident investigations, testifying at trials as an
engineering expert, and doing road grader design work. He
confirmed that he is a licensed engineer in the State of
Wisconsin, and his biographical data, including his education and
experience, is a part of the discovery responses submitted in
this case (Tr. 162-164).
Mr. Goodney confirmed that he is a member if the Society of
Automotive Engineers (SAE) and that he served on a committee that
drafted industry brake standards for off highway machines such as
scrapers and graders, and he explained the standards and the
three braking systems for a grader (Exhibit R-11: Tr. 164-167).
He confirmed that he participated in the accident investigation
and reviewed the MSHA investigation report, the Walker machinery
report, and the grader manuals, including the information
regarding the brake accumulator (Tr. 168).
Mr. Goodney explained that the brake accumulator is a device
for storing oil under pressure so that when the brakes are
applied, there is an immediate source of oil to apply the brakes.
The accumulator also serves as a "cushion" that allows the
accumulator charging valve to function in that the pressure is
allowed to vary between 850 and 1200 pounds per square inch,
thereby allowing the oil to be stored for future use. He
explained how the accumulator is charged through a continuous
pumping systemv and he stated that with a normal operating
systemu the oil pressure at any one time with the engine running
will be between 850 and 1200 psi (Tr. 169).
Mr. Goodney stated that the grader service brake does not
function as an emergency braking system, and he explained that
the emergency brake is a completely separate device that is
applied by a separate handle similar to a car emergency brake.
The emergency brake also serves as a park brake (Tr. 170-171).
With regard to the service manual reference that states that a
fully charged accumulator should provide approximately five brake
applications after the engine has been shut off, Mr. Goodney
stated as follows (Tr. 172)~
A. That is really a very loose number, because at any
moment in time, the accumulator may be charged at
twelve hundred psi, or at another moment in time, if
it's toward the lower end, it may be eight hundred
fifty psi. And with all of the variables of the system
concerning pressure, brake wear, and so forth, the

number of applications is very much different.

1678

So it's

not specified with any degree of thoroughness in the
manual, because it is something that is very difficult
to measure and to have a direct handle on.
Mr. Goodney explained that the greatest factor that would
cause an accumulator not to provide five braking applications
would be a lack of precharge pressure because "the accumulator
will not function at all. It will not provide any oil
whatsoever" (Tr. 173). He stated that the proper method for
testing an accumulator to determine whether it is functioning
properly is to attach a gauge to the charging port at the top of
the accumulator to measure the pressure (Tr. 173). He confirmed
that the Walker Machinery report reflects that the accumulator
was tested more than once (Tr. 174). He further explained the
testing information found in the grader manuals (Tr. 174-176}.
Mr. Goodney stated that an accumulator is not unique to the
Caterpillar grader in question, and that other manufacturers use
it. He explained the function of the nitrogen in an accumulator
and stated that "it is the medium that allows compression by the
oil to store a given amount of oil" (Tr. 176). He further stated
that the accumulator provides a quick response when the brake
pedal is applied by instantly making oil available to fill the
voids in each wheel piston assembly and allows for immediate
brake application without the valve cycling that directs oil to
the accumulator (Tr. 177).
On cross-examination, Mr. Goodney confirmed that he was
being compensated at an hourly rate by the respondent for his
hearing appearance. He stated that a piece of equipment should
be operated as directed by the manufacturer's manual, and that it
is important that braking function in general is available when
the machine engine is off. He confirmed that the grader in
question has three different braking systems, and that in
addition to the complex service brakes, the emergency brake and
park brake are combined together into a simple mechanically
applied system. He believed that it was possible to use the park
brake while the grader is rolling downhill, and that this was
done when the grader was tested and it stops the machine
(Tr. 184). Although one function of a park brake on a car is to
secure it while it is in place, a secondary function "is your
emergency brake in the event of complete loss of your hydraulic
brake on your car" (Tr. 185).
Mr. Goodney confirmed that he has never operated a grader
such as the one in question, but he has operated similar and
slightly smaller ones. If he were operating a grader which was
rolling downhill with the engine off his first reaction would be
to apply the foot service brake pedal. He confirmed that the
service brakes on other equipment will operate with the engine
off, but only "for a limited number of applications". When asked
if he would consider the cited grader to be in a safe operating

1679

condition if he tested it and found only one brake application,
he responded as follows (Tr. 186-187):
A. I wouldn't consider it unsafe. As long as the park
brake, emergency brake, was working, in good working
· order it's still a safe machine to operate. If you
take the SAE document as the minimum performance
standard for a machine, in my opinion, if this machine
meets the requirements of the SAE document, the minimum
performance, then you can't say it's an unsafe machine.
You may say it's something I should have repaired or I
should fix if you know it should have five
applications, but I certainly wouldn't call it an
unsafe machine.
Q. If you were operating this machine on a nine degree
grade regularly, every day, would you be willing to say
it was safe to operate it even if only one brake
application would work.~ith the engine off?

A. I think the record shows that you have one brake
application with this machine. And, also, the record
shows that the park brake was capable of stopping this
machine on that grade.
Mark Potnick, Director of Human Resources, Geupel
Construction Company, testified that his duties include
"overall safety programs, loss control, labor relations,
benefits, and personnel". He stated that the respondent coal
company was in operation for approximately two years, and that
the mining was completed and terminated and the mine is no longer
operational (Tro 192) o He confirmed that the company had a mine
safety programu and that he was the company;s primary representative during the accident investigationo He identified Exhibit
R-4, as a copy of the company accident investigation report that
he prepared, and he explained his participation in the
investigation (Tr. 194-197).
Mro Potnick stated that the grader was examined as it rested
against the highwall on the day of the accident, April 23, 1991,
and the decelerator switch was in the off position, and the fluid
levels were checked. The grader was examined again the next day,
April 24u 1991, at the accident area under operating conditions,
and the service brakes, and emergency and park brakes were tested
and the wheels locked and stopped the machine on the steepest
grade where it was tested (Tr. 198)o
Mr. Potnick stated that during the investigation he
interviewed foreman Jim sword, who was Mr. Browning's supervisor,
and Mr. Sword told him that Mr. Browning stated that "the engine
quit and I jumped off and the wheels ran over me" (Tr. 199).
Mr. sword said nothing about Mr. Browning mentioning the braking

1680

system, but a truck driver who was in the area listening to the
conversation between Mr. sword and Mr. Browning mentioned to MSHA
Inspector Davis that he overheard Mr. Browning mention the brakes
(Tr. 199-200).
Mr. Potnick stated that Inspector Davis informed him that
in order to abate the citation the accumulator had to be replaced
and the brakes needed to be repaired to comply with the number
of brake applications mentioned in the manual (Tr. 200).
Mr. Potnick identified Exhibit R-7, as an MSHA inspection report
dated March 12, 1991, reflecting the results of an inspection
conducted by Inspector Noel Keith of all of the mine equipment,
and the grader in question was not cited at that time for any
violations, and it had only been operated for two shifts, or
16 hours, subsequent to the prior inspection, and before the
accident involving Mr. Browning (Tr. 203).
Mr. Potnick stated that he received a copy of MSHA's
accident report (Exhibit P-5) 1 approximately a year ago in
another proceeding concerning additional citations that were
issued as a result of the accident in issue in this case
(Tr. 203-205) •
on cross-examination, Mr. Potnick confirmed that when the
grader braking systems were tested during his investigation with
the engine running they were fully operational. He also
confirmed that at the time of the accident, the grader engine
quit for some unknown reason. Although he believed that the
emergency brake would have stopped the grader, when the grader
was inspected after the accident the emergency brake was not
applied and it does not appear that Mr. Browning attempted to
use that brake (Tr. 210)o
In response to further questionsu Mro Potnick stated that
the accumulator was not checked with the grader under power

during his investigation immediately after the accident "because
if you have brakes and it stops, then your accumulator is
Norking 6g (Tro 211). He stated that the accumulator was checked a
day or two
after the grader had been tested under operating
conditions and that 01 everything workedn (Tr. 211).

Mr. Potnick stated that during the joint testing of the
grader 9 the engine was shut off and the service brakes were
applied with one application, and they locked the wheel and
stopped the machine (Tr. 213). The machine was then taken to
the top of the hill, and when asked how the hydraulic pressure
testing of the accumulator was conducted, he replied as follows
at (Tr. 214-215):
A. Okay. After this operational check, the grader was
then taken to the top of the hill and was placed in the

1681

yard area. A day or so later, MSHA came back. Walker
equipment people came back. Our personnel were there.
The grader was then checked.
It was at that time, as the grader sat still, that the
various components were again checked for pressures.
This was the first check they had done for various
spec's. They checked pressures at the wheels. They
checked pressure on the accumulator tank and the
pressure on the accumulator tank was right up to spec.
It was when the investigators or mechanics applied the
brake pedal after power was shut off, they found that
they had one application at that point in time, one
brake application. It was let up. It was applied
again and there was no brake resistance.
And it was at that time that they then attempted to
state that the one application, as opposed to the five
or approximately five that is listed in the manual,
made the machine unsafe.
Petitioner's Arguments
The petitioner asserts that mandatory safety standard
30 C.F.R. § 77.404(a), imposes liability upon the respondent
regardless of its knowledge of unsafe conditions. Peabody Coal
Company v. Secretary of Labor, 1 FMSHRC 1494, 1495 (October
1979). Citing Secretary of Labor v. Southern Ohio Coal Company,
13 FMSHRC 912, 916 fn.2 (June 1991), quoting Secretary of Labor
v. Alabama By-Products Corp.p 4 FMSHRC 2128, 2129 (December
1982) v the petitioner relies on the Commissionvs ruling that a
violation of section 77 404 (a) v
based upon 9gwhether a
reasonably prudent person familiar with the factual circumstances
surrounding the allegedly hazardous condition, including any
facts peculiar to the mining industry, would recognize a hazard
warranting corrective action. • °1
o

0

The petitioner argues that the respondent violated mandatory
safety standard 30 C.F.R. § 77.404(a), by allowing the cited road
grader in question to be operated while failing to maintain it in
safe condition in that the accumulator provided for only one
application of the brakes with the grader engine off. In support
of its position, the petitioner asserts that the respondent
presented no evidence to contradict the testimony of Inspector
Mills that only one brake application was provided for after the
grader engine ,was shut off, and that the inspector's observation
is corroborated by a statement made by an equipment serviceman
-(James Trent) in a report he prepared upon inspecting the grader
on April 24, 1991, as part of MSHA's accident investigation
(Exhibit R-5) .

1682

The petitioner further asserts that the service manual for
the grader specifically indicates that when in proper operating
condition, the braking system should provide for approximately
five brake applications after the engine has been shut off
(Exhibit P-3). The petitioner points out that Inspector Mills
was informed by Walker Machinery that if only three applications
were provided for, repairs would be necessary, and that
Mr. Mills, who has received extensive training on heavy
equipment braking systems, determined that the conditions
which he found were not in compliance with the service manual.
The petitioner cites the testimony of equipment manager
William Roberts, who is employed by the respondent's parent
company, Geupel Construction, that a mechanic charged with
maintaining the grader should be familiar with, and is expected
to comply with, the service manual and is expected to correct
conditions which are out of compliance with the service manual.
The petitioner also cites the testimony of respondent's braking
system expert, Thomas Goodney,,. that equipment should be operated
according to the service manual specifications, and his acknowledgment that similar equipment made by other manufacturers
provided for a number of braking applications with the engine
off. Acknowledging the fact that the service manual does not
indicate that exactly five brake applications must be provided
for the system to be working properly, the petitioner concludes
that the fact that only one application was provided for must be
considered out of compliance with the service manual.
The petitioner asserts that although the fact that the
grader was not in compliance with the service manual is not
definitive evidence that it was not in safe operating condition,
Commission has
ected the attempt to distinguish between
defective and unsafe equipmentf citing Secretary of Labor, Vo
Propst and Stemplev
FMSHRC 304 (February 198l)o Accordinglyu
the petitioner concludes that it must be presumed that any
equipment which is defective is unsafe, and that the uncontradicted evidence in this case clearly establishes that the grader
was defective in
only one brake application was provided
~:Ji th the engine
Even without acknowledging that defective equipment is
presumed to be unsafeu the petitioner concludes that the evidence
clearly establishes that the condition cited by Inspector Mills
rendered the grader unsafe to operate. In support of this
conclusionu the petitioner asserts that while the brakes operated
properly with the engine on, brake function remained necessary in
The petitioner cites the facts in
1the event the ,engine failed.
1this case that show that it is possible for the grader engine to
go off without warning, and that with the accumulator not
functioning properly, the operator would be unable to stop the
grader with the service brakes when the engine was off. The
petitioner cites the testimony of equipment manager Roberts who

1683

testified that "if the accumulator is not functioning and the
engine is stopped, the machine would not stop. You have no brake
pressure. You would have no pressure to apply the brakes, and it
would not stop" (Tr. 161).
Acknowledging the fact that the grader parking, or emergency
brake, which is an alternative braking system, was not found to
be in unsafe or defective condition, the petitioner maintains
that the parking or emergency brake is not designed to stop the
grader in an emergency. Further, although expert witness Goodney
testified that the parking brake would have stopped the grader if
it had been applied, the petitioner points out that Mr. Goodney
acknowledged that an operator's initial reaction would be to
attempt to activate the service brakes, and that Mark Potnick,
who conducted an accident investigation for the respondent,
concluded that the park brake had not been applied at the time of
the accidento
The petitioner conclude.s.. that. given the fact that the grader
was operated on a curvy, steep road, that the engine could shut
off at any time without warning, that the parking brake is not
designed to stop the grader in an emergency, and that an
operator's first reaction in an emergency will be to attempt to
activate the service brakes, it is apparent that the failure of
the service brakes to provide for more than one application with
the engine off was a hazard which warranted corrective action
according to the standard delineated in Alabama By-Products,
supra, and served to make the grader unsafe to operate.
In response to the respondent's suggestion that the force of
the accident may have actually damaged the braking system such
that the accumulator could no longer provide for more than one
application of the brakes with the engine shut offu the peti·;:ioner cites the inspector 17 s testimony that the accident did not
cause extensive damage to the grader, and could not have caused
the condition which he cited. The petitioner also cites the
respondent's own accident investigation report that the only
damage to the grader was a cracked rear cab glass and two broken
~ngine :mountso
In conclusionu the petitioner argues that considering the
fact that equipment which is not maintained as specified in the
manufacturerPs service manual is defective and therefore presumed
be unsafe, and the clear evidence that the conditions observed
by Inspector Mills did create a hazard which rendered the grader
unsafe to operatorv and that the accident which occurred reveals
precisely why ~his condition was unsafe, it has established that
~he condition of the braking system rendered the road grader
hnsafe, and therefore, in violation of 30 C.F.R. § 77.404(a).

1684

Respondent's Arguments
The respondent argues that the petitioner has failed to
carry its burden of proving that the cited grader in question was
operating in an unsafe condition. The respondent takes the
position that Inspector Mills issued the citation after
concluding that the failure of the accumulator to provide
approximately five brake applications once the engine had been
shut off rendered the grader in an unsafe condition in violation
of section 77.404(a). However, the respondent points out that
this standard requires machinery and equipment to be maintained
in safe operating condition, and it suggests that the basis for
the citation was that the equipment was unsafe when it was not
operating. In support of this conclusion, the respondent cites
the testimony of Inspector Mills that the braking system is
supposed to work with the engine off, and that it did not provide
the approximate five brake applications once the engine had been
shut off.
The respondent points out that after the accident, the
grader brakes were tested and found to be at the appropriate psi
pressure. Further, after the grader was started on the steepest
part of the grade, the service brake held the grader after it was
stopped, and that the "park brake" was then set and also held the
grader at that grade.
The respondent cites the testimony of braking expert Thomas
Goodney explaining the Society of Automated Engineers (SAE) brake
standards for graders, and his explanation of the three-part
grader braking system consisting of the service brake, which is
the primary system for stopping the vehicle, the emergency
stopping system used to stop a vehicle in the event of any single
failure in the service brake system, and the parking system which
used to hold the stopped vehicle in a stationary position.
The respondent cites the SAE reports describing the
emergency brake application, and Mr. Goodney's explanation that
it is desirable to have the emergency braking system separate
from the service braking system. Respondent cites Mr. GoodneyRs
testimony that the SAE does not accept the accumulator as an
emergency braking system because in the event of any single part
failure there must be a separate emergency brake system, and for
this reason, the separate system is used. Respondent also cites
Mro Goodney 1 s testimony that the approximate number of five
accumulator applications has nothing to do with any industry
standard for an emergency braking system, nor does it have
anything to d~ with an emergency application.
The respondent asserts that although there are three
Caterpillar grader manuals, only one, not used by the operator or
mechanic, refers to approximately "five" applications, and that
there is nothing in the service manual used by the shop mechanic

1685

that deals with testing the accumulator five times after engine
shut off. The respondent further notes that there is nothing in
the service manual stating that the accumulator has to be capable
of operating five times after the engine is off, let alone to
test for this. The respondent also notes that the operator's
manual advises that a "slight amount of nitrogen leakage is
normal" and that "low accumulator precharge will reduce the
number of reserve brake applications but may not noticeably
affect the brake performance during its normal operation".
Conceding that the manual advises the operator to check the
accumulator precharge pressure every five hundred service hours
and to recharge if necessary, the respondent points out that
nowhere is the operator advised that the accumulator should
function for a period of five times, or be tested to see that it
does, or to start the engine and check the accumulator five
times.
The respondent maintains that if the accumulator is fully
charged, as it claims it wa.§., the. manual provides that the
accumulator will have approximately five braking operations.
Since the accumulator was fully charged, the respondent concludes
that it did what was required. The respondent further concludes
that merely because the accumulator does not work "approximately"
five times in the off position does not mean the vehicle is in an
unsafe operating condition. In support of this conclusion, the
respondent maintains that the accumulator has nothing to do with
the safe operation of the grader at all, and it cites the
testimony of equipment manager Roberts that the installation of a
new accumulator on the grader did not change the situation as far
as the number of applications were concerned. The respondent
points out that as confirmed by Mr. Goodney and Mr. Roberts,
other manufacturers make similar graders and mention nothing
about the applications of the accumulatoru and it cites the
testimony of Mrc Goodney that 91 so long as the emergency brake was
workingu this grader was a safe machine and not in an unsafe
operating condition "(Tr. 186).
Although the citation makes reference to an inoperative
brake pressure gauge 9 the respondent asserts that there was no
contention at the hearing or in any MSHA reports that the
pressure system gauge in any way contributed to any fatality, and
that all tests reflected that the system was fully charged and
under pressureo Further 9 since the grader struck the highwallu
the respondent believes there is no way to tell whether the
pressure braking system was damaged by the accident. However,
the respondent concludes that this would appear to be the case
since the graqer had only been run sixteen operating hours since
it was inspected by MSHA in February, 1991, and the operator
(Rayburn Browning) made daily vehicle checks and there was no
indication that the gauge in question was not working.

1686

Finally, the respondent argues that the negligence of the
employee grader operator Rayburn Browning, cannot be imputed to
the respondent, that a special "Commission" assessment is not
appropriate in this case, that the penalty was not assessed
within a reasonable time, and that since the respondent has
ceased its operations, it is inappropriate to impose any penalty.
Findings and Conclusions
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 77.404(a), for not maintaining the
cited Caterpillar grader in a safe operator condition.
Section 77.404(a), provides as follows: "(a) mobile and
stationary machinery and equipment shall be maintained in safe
operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately".
In Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (December
1982), the Commission held that equipment is "unsafe" under
30 c.F.R. § 75.1725(a), which is identical to section 77.404(a),
when a "reasonably prudent person familiar with the factual
circumstances surrounding the allegedly hazardous condition,
including any facts peculiar to the mining industry, would
recognize a hazard warranting corrective action within the
purview of the applicable regulation".
In Southern Ohio Coal Company, 12 FMSHRC 1627 (August 1990),
I affirmed a violation of section 77.404(a), after finding that
two broken metal plates, or track pads, on a D-7 caterpillar
bulldozer crawler track which was used by the operator as a means
of mounting, dismounting, and servicing the machine, rendered the
machine unsafe to operate and required its immediate removal from
serviceo I rejected SOCCO's argument that the broken condition
the cat pads did not render the machine inoperable or unsafe
to operate because the primary purpose of the track pads was to
provide ma.chine traction which was not affected by the broken
pads, and that section 77.404(a) did not apply to a stumbling or
tripping hazard created by the broken pads. I also concluded
that notwithstanding the fact that the purpose of the track was
to provide machine traction, the tracks, including the pads,
were an integral and functional part of the machine used by the
operators to mount, dismount, and service the machine, and could
not be divorced from the safety requirements found in
section 77.404(a).
On appeal, the Commission affirmed my decision, Southern
Ohio Coal Com~any, 13 FMSHRC 912 (June 1991), and rejected
SOCCO's contention that in order for section 77.404(a) to apply,
xhe unsafe condition must render the equipment unsafe to operate,
and that since the use of the dozer tracks as a walkway did not

1687

involve the "operating condition" of the dozer, any stumbling or
tripping hazard created by the broken pads was not within the
scope of section 77.404{a).
Citing its holding in Ideal Cement Co., 12 FMSHRC 2409,
2414-15, (November 1990), that "the integrity of a machine is not
defined solely by its proper functional performance but must also
be related to the protection of miners' health and safety", the
Commission stated as follows in Southern Ohio coal Company,
13 FMSHRC 915:
If a machine cannot be used safely by miners, the
machine is not in "safe operating condition". Thus, a
dozer is not in "safe operating condition" if miners
are unable to enter and exit the dozer's cab without
risking injury. Because the dozer's tracks serve as
the only walkway for the operator to mount and dismount
the dozer and to check the fuel, oil, transmission
fluid and water level ,, ... we conclude that the dozer's
track pads were within the scope of section 77.404(a)
and that the dozer was not in "safe operating
condition". In so concluding we find that a "stumbling
and tripping hazard" is covered by the standard.
In a prior case involving the same loader which was cited
in the instant case, Commission Judge Weisberger affirmed a
violation of section 77.404(a), based on a determination made by
Inspector Mills during his accident investigation, that the
grader steering wheel had between 270 to 300 degrees of slack in
that the wheel had to be turned to that extent in order for it to
respond and that a delay in steering could cause an accident
should this occur while the vehicle was being driven around a
blind curve. Steel Branch Miningv 14 FMSHRC 871 (May 1992).
making his determinationv Inspector Mills did not drive the
graderu and did not start the engine. He simply turned the wheel
and observed between 270 to 300 degrees of slack through which
the steering wheel had to be turned before the wheels responded.
On Appeal of the decisionr Steel Branch asserted that since
the grader was equipped with nhydraulic steeringn, slack is
always present when its engine was off and that such slack is
eliminated when the grader was running. Since the grader was not
operated during the inspection by Mr. Mills, Steel Branch
contended that the inspection of the Steering wheel was deficient
and that section 77.404(a) addresses only "the condition of the •
• • • • vehicle while it is operating". Steele Branch also relied
on the fact that its head mechanic who drove the grader sometime
lprior to the accident did not perceive excess slack, and that
¥hen he replaced all loose parts after the accident, he believed
''it wasn't that loose . • •• to cause it to be unsafe to
operate".

1688

In affirming the judge's decision, the Commission concluded
that substantial evidence supported his determination that the
excessive play exhibited by the steering wheel rendered the
grader unsafe to operate, and it pointed out that there was no
dispute that the grader was operating at the time of the accident
and that Steel Branch did not assert that the steering wheel
slack was caused by the accident. Steel Branch Mining,
15 FMSHRC 597, 600 (April 1993).
In the instant case, it is undisputed that the grader engine
quit for some unknown reason while it was being operated by
Mr. Browning. When the engine quit, the loader was being driven
up an inclined haulage road in the direction of an equipment
parking area. Respondent's witness, Mark Potnick, who participated in the investigation, confirmed that the loader engine
quit for some unknown reason, and that when he interviewed
Mr. Browning's supervisor, foreman Jim Sword, Mr. Sword told him
that Mr. Browning stated to him that the engine quit and he
jumped off the loader and was run over by the wheels.
At the conclusion of the investigation, which included an
examination and testing of the other grader brakes, MSHA
Inspector Mills concluded that the grader was not being
maintained in a safe operating condition. Mr. Mills relied on
the provisions of the grader manufacturer's equipment manual that
indicated that the grader's fully charged brake accumulator
should provide approximately five brake applications after the
loader engine has been shut off.
The grader service manual provides a schematic drawing of
the grader brake system components, including the accumulator,
and it states as follows at page "Group 70, Page 1" (Exhibits P-3
and R-9) ~

Accumulator (5) is the pressure source or brake
actuation. Its accumulation of oil, under nitrogen
pressure it released to apply the brakes whenever the
brake pedal is depressed. The accumulator is
maintained in the charged condition by accumulator
charging valve (7). After the accumulator is fully
charged, accumulator charging valve (7) directs all
pressure oil from the large section of hydraulic oil
pump (2) into the power control hydraulic circuit.
Fully charged, the accumulator provides for approximately five brake applications after the diesel engine
has been shut off. {Emphasis added).
The brakes (4) are actuated by pressure oil directed
from brake control valve (6). When brake control valve
(6) pedal is depressed, pressure oil from the
accumulator is directed to the oil actuate wheel
brakes (4).

1689

The service manual also contains detailed information
explaining the operation, removal, installation, assembly and
disassembly of the brake accumulator, as well as the procedures
for checking and charging the dry nitrogen gas used in the
accumulator. I take note of the fact that the service manual
information concerning the grader hydraulic system and brakes
refers to the parking brake and the wheel brakes, and it does not
use the term "emergency" brake. The parking brake is described
as follows at page "Group 170, Page 1" (Exhibit R-9):
The parking brake is a mechanically operated,
internally expanding shoe brake mounted on the front of
the range transmission. The brake is manually applied
by a hand lever located to the left of the power
control levers. Expanding shoes act against a brake
drum, which is bolted to the range transmission output
shaft.
The parking brake lever-is connected by mechanical
linkage to a lever on the brake cam. When the hand
lever is operated,the linkage moves, actuating the
brake lever and, through action of a brake cam, forces
the brake shoes out against the brake drum.
The grader operation maintenance guide, at page 41, states
"To stop the motor grader apply the foot brake" (Exhibit R-6).
The guide also contains detailed information concerning the
parking brake but does not use the term "emergency" brake. The
brake accumulator cylinder is mentioned at page 93, and it states
as follows:
The brake accumulator cylinder is lubricated with oil
and charged with dry nitrogen gas under pressure when
assembledo
A slight amount of nitrogen leakage is normal. Low
accumulator precharge reduces the number of reserve
nrake applications but may not noticeably affect brake
performance during normal operationo Check the
accumulator precharge pressure every 500 service meter
hours and recharge if necessaryo
The grader lubrication and maintenance guide, at pages 9 and
mentions the brake accumulator and reflects that the nitrogen
precharge pressure should be checked (Exhibit R-S)o
~5u

According, to the evidence and testimony in this case, the
is a device whose primary function is to provide an
immediate source of oil under pressure for a quick and immediate
responsive brake application to quickly stop the machine when the
brake pedal is applied. A secondary function of the accumulator
is to provide a margin of safety by facilitating the storing of

~ccumulator

1690

oil for future brake applications. The accumulator, along with
the foot brakes, and the emergency, or park brake, and other
component parts, constitute the grader braking systems.
Respondent's equipment manager William Roberts stated that the
accumulator is installed on the loader "As a function to make the
brakes work 11 •
During the inspection and testing of the brakes in the
course of the investigation, Mr. Mills found that the foot brake
held the machine in place on a grade with the engine running with
only one application of the foot pedal. However, when further
brake testing was conducted with the grader engine shut off,
Mr. Mills found that only one brake application was provided when
the pedal was applied, and that upon a second, third, and fourth
application, or pumping of the foot brake pedal, there was "no
braking ability whatsoever" and that there was nothing to provide
further brake application with the engine shut off. Since the
grader equipment manual indicated that a fully charged
accumulator should provide for approximately five brake
applications after the engine was hut of, Mr. Mills concluded
that the lack of more than one braking application when the brake
pedal was applied during the testing rendered the loader unsafe
to operate and constituted a violation of section 77.404(a).
Although Mr. Potnick testified that during the initial
testing of the grader brakes during the investigation, one
application of the foot service locked the brakes and stopped the
machine, he confirmed that no further applications of the brakes
were attempted or made at that time (Tr. 214). However, upon
further investigation a day or so later, in the presence of the
MSHA inspectors, the Walker Equipment Company personnel,and the
respondentPs personnelu Mro Potnick confirmed that when the
~rakes were tested with the engine shut ofu only one brake
ication was available 9 and when the brakes were applied a
second time ••there was no brake resistancev 1 "
The respondent's assertion that the accumulator "has nothing
to do with the safe operation of the grader at all" is not well
~aKen and
is rejected" Although Mro Roberts indicated that
the installation of a new accumulator did not change the situation with respect to the number of braking applications with the
engine shut ofu he went on to explain that all four brake
assembl
were also changed on the machiner and he assumed 1
but did not ltnow u that five braking applications were provided
after this post-accident abatement work was completed.
;
As noted earlier, Mr. Roberts confirmed that the purpose of
!the accumulator was "to make the brakes work". He also confirmed
~hat the had no idea about the need for brake applications after
the machine engine is off, and he conceded that in his experience
with heavy equipment he never tried the brakes with the engine
shut off to determine whether the brakes worked.
He also

1691

conceded that if the accumulator is not functioning and the
engine is stopped, the machine would not stop because of the lack
of brake pressure to apply the brakes.
Inspector Mills was of the opinion that the accident
occurred because the accumulator was not being fully charged, and
he indicated that when it was tested, the accumulator nitrogen
precharge indicated 600 psi, and when the engine was shut off,
the pressure was 650 psi on the first brake application, and
"after that we got zero pressure". Respondent's expert engineer
Thomas Goodney testified that the number of braking applications
provided by a fully charged accumulator with the engine shut of
would depend on a number of variables, including pressure and
brake wear. He also indicated that an accumulator may be charged
at any moment in time at 1,200 psi, and at another time, "if it's
toward the lower end, it may be 850 psi". Mr. Mills found
600 psi during the accumulator nitrogen precharge test, which is
below "the lower end", and with the engine off, he found 650 psi
on the first brake application, and zero pressure after that,
Mr. Goodney agreed that the'qreatest factor that would cause an
accumulator not to provide fine braking applications would be a
lack of precharge pressure because the accumulator "will not
function at all" and 11 will not provide an oil whatsoever". It
would appear to me that Mr. Goodney's testimony lends support to
Mr. Millus conclusion that the accumulator was not fully charged.
Mr. Goodney further testified that if one were aware of the
fact that the brake accumulator should provide for five brake
applications, and it only provided for one such application, he
would have the accumulator repaired. Inspector Mills testified
that a representative of the Walker Machinery company informed
him that an accumulator that provided three braking applications
needed to be repairedo A report of April 25v 1991, prepared by
Walker Machinery mechanic James Trentf who assisted in the
<\Casting of t.he grader during the investigation, states in
relevant part follows (Exhibit R-5, attachment)~
.Checked number of applications readily
available from the accumulator with the engine off.
Pressing and releasing the brake pedal with the engine
offu supplied oil to the brake packs only once.
Pressure at that ·time was approx. 620 psi. Thereafter
the pressure was zero" The number of braking
applications that
normally supplied by the
accumulator with the engine off is five applications.
o

o

o

o

Inspector Mills confirmed that the tools and gauges used to
test the grader during the investigation were provided by the
Walker Machinery Company mechanic. Mr. Goodney explained that
'the proper testing method of the accumulator to determine if it
is functioning properly is to attach a gauge to the charging port
at the top of the accumulator to measure the pressure, and he

1692

confirmed that his review of the Walker Machinery Company report
reflects that the accumulator was tested more than once. I
find no evidence to support any conclusion that the accumulator
testing by Mr. Mills was faulty or improper. Indeed, Mr. Robert
indicated that the way to test the grader would be to turn on the
engineu let it warm up, then shut it of and "make a brake applicationu let off of it, make another brake application, let off of
itG1 • It would appear to me that this is precisely how Mr. Mills
tested the grader. I conclude and find that the testing of the
loader braking system with the engine off was a reasonable and
logical method for determining whether the machine service
braking system, which included the critical accumulator, would
stop the machine in the event of engine stoppage.
The respondent 8 s suggestion that the loader pressure braking
system may have been damaged in the accident when the loader
drifted back and came to rest after it struck the highwall is
rejected. The credible and unrebutted testimony of Inspector
I'iills reflects that there was . no collision damage to the loader
braking system as a result of the accident, and as noted by the
petitioneru the respondent's accident report reflected that the
only damage to the grader was a cracked rear cab glass and two
broken engine mounts.
The respondent suggests that the citation cannot stand
because section 77.404(a) only required the loader to be
maintained in a safe condition while it was in operation, and
that Mr. Mills determined that it was unsafe because of the
failure of the accumulator to provide approximately five braking
applications with the engine off, and believed that the braking
system
supposed to worl{ when the engine is of. The
:c:espondlent:
argument:
It.
undisputed in this
clt: ~:he
, the grader was in
anct ·;:lJ.a·t t.he
subsequently quit for some unknown
reaSOilo

The

respondent advanced a similar argument in the prior
ing the same loader when it took the position
Inspector
lls to test the loader steering
·tns grader 't"ias
operation rendered the
to establish that the loader was
~:ras being opera:ted
The respondent 1 s argument was
commission in its decision affirming a violation
o

7ot104(a

o

A similar defense was also raised in the Southern Ohio Coal
Company caseu supra, where
was argued that stumbling and
tripping hazards created by broken bulldozer track pads did not
involve the unsafe operating condition of the dozer and did not
fall within the scope of section 77.404(a). The Commission
rejected this argument in affirming my finding of a violation of
section 77.404(a).

1693

I find little merit in the respondent's arguments concerning
the absence of any information provided in one of the three
grader manuals with respect to the testing of the accumulator.
As correctly pointed out by the petitioner, equipment manager
Roberts confirmed that the mechanic charged with maintaining the
grader should be familiar with and is expected to comply with the
service manual and is expected to correct conditions which are
out of compliance with the manual, and Mr. Goodney agreed that
equipment should be operated according to the manual specifications. Inspector Mills confirmed that the respondent's master
mechanic was unaware of the manual provision concerning the five
braking applications provided by the accumulator (Tr. 59). While
it is true that the manual uses the term "approximately" five
braking applications, I cannot conclude that the inspector's
interpretation of that term to include a range of six to three
braking applications is unreasonable. Further, notwithstanding
the absence of any specific testing information in the manual,
equipment manager Roberts described how he has tested the machine
for proper braking applicat.;L.ons with the engine off, and that
test is similar to the one used by the inspectors.
The respondent's assertion that the accumulator was found to
be fully charged, and therefore functioned properly and provided
what was required in terms of braking applications is not well
taken. Although the Walker Machinery report of April 26, 1991,
reflects that the accumulator nitrogen charge without any oil
pressure was within the 600 psi specification, the report for the
previous day on April 25, 1991, indicates that with the engine
off, the initial 620 psi pressure made available to the brakes by
the accumulator on the first braking application had reduced to
zero pressure after the first application. Mr. Potnick confirmed
that the accumulator was not checked with the grader under power
during his investigation immediately after the accident because
the brakes worked and stopped the machine and he concluded that
the accumulator was functioning properly. However, since the
primary purpose of the accumulator is to provide additional
braking capability beyond the first application of the service
brake after the engine shuts down, the fact that the first
application of the service brake stopped the machine under
power is not particularly significant, nor does it support any
conclusion that the accumulator was functioning properly. It
seems clear to me that in this case the accumulator provided
only one brake application with the engine off, rather than the
uwapproximately" five called for by the service manual.
Mr. Goodney described the grader emergency braking system as
"a simple drum-type brake with simple mechanical linkage to the
brake" that aiso functions as a park brake. H~ further indicated
·that the emergency brake is similar to that on a car in "which
you apply a separate handle which puts a separate brake on"
(Tr. 170). He was of the opinion that as long as the park brake
was in good working order, the machine would not be unsafe to

1694

operate even though the service brakes had only one available
braking application. Although Mr. Goodney believed that it was
possible to use the grader emergency brake while the machine is
rolling downhill, and that this was done when it was tested,
Inspector Mills indicated that the park brake is designed to
secure the machine in place after it has come to a stop. He
confirmed that the park brake was set during the initial testing
of the grader on a grade and that it held the machine. Mr. Mills
did not indicate that the park brake was applied while the
machine was actually rolling downhill, as suggested by
Mr. Goodney, and I find no evidence that the testing included
allowing the grader to roll free on a grade and then bringing it
to a stop while it was rolling by activating the park brake. The
respondent's accident investigation report reflects that the
parking brake was operative and stopped the grader on a grade,
and an "incident report" explaining some of the testing reflects
that after the grader was started, the "park brake was set and
held at that grade location" (Exhibit R-4 and R-5).
The SAE ground vehicle standards for braking
performance for graders reflects that the service braking system
is the primary system for stopping and holding the machine. The
emergency stopping system is described as the system used for
stopping in the event of single failure in the service braking
system, and the parking system is described as the system
to hold stopped machinery stationary (Exhibit R-10). Although
Mr. Goodney believed that the grader park brake would stop the
machine while it were rolling downhill, he agreed that if he were
operating the machine while rolling downhill, his first reaction
would be to apply the foot service brakes. Inspector Mills
confirmed that the grader park brake was in the "off" position
when he inspected the machine after the accident, and this was
confirmed by Mro Potnick who indicated that the park brake was
not applied and that it did not appear that Mr. Browning
attempted to use that brake.
The respondent's assertion that the operative grader park
brake rendered the grader safe to operate pursuant to
section 77o404(a)v notwithstanding the failure of the service
braking system accumulator to provide for more than one service
brake application with the engine turned off, is rejected. I
conclude and find that the purpose of the park brake is to hold
t.he grader in place after it has been brought to a stop by
activating the foot service brakes which served as the primary
braking method for stopping the machine. The fact that the park
brake was operative, and held the machine in place on a grade
during the post-accident testing, is not relevant to the issue of
whether or not the failure of the brake accumulator, which is an
integral and critical component of the primary service braking
system, provided for more than one braking application of the

1695

service brakes after the grader engine quit while it was being
operated by Mr. Browning, rendered the grader unsafe pursuant to
section 77.404(a).
I believe that one can reasonably conclude that in the event
of unexpected engine failureQ the first instinct of the operator
would be to attempt to stop the grader by depressing the foot
service brakes, the primary braking system designed to stop the
loader under operating conditions. Although the service brakes
may have functioned properly with the engine running, it seems
clear to me that continued and quickly available braking function
becomes critical and necessary in the event of unexpected engine
failure or stoppage, particularly when the equipment is being
operated on a steep roadway. The evidence in this case
establishes that with the engine offQ the brake accumulator only
provided for one application of the brake. According to the
service manual, a fully charged accumulator should provide
approximately five braking applications after the engine is shut
off. This was corroborated by·the mechanic who participated in
the testing of the grader during the investigation, and his
report concluded that five braking applications are normally
supplied by an accumulator with the engine shut off. Further,
braking expert witness Goodney agreed that an accumulator that
provided for only one braking application should be repaired, and
Inspector Mills indicated that an accumulator that provided or
only three braking applications should be repaired.
I conclude and find that the grader brake accumulator is a
critical and integral component of the machine's braking system
and that it was intended to function and provide more than one
braking application in the event of an unforeseen or unexpected
engine stoppage. Based on all af the credible evidence and
t:.estimonv adduced
my previously made
findings .. and conclusions u ::I
t.he grader
brake accumulator
question 11.ras defective and not
proper
operating condition in that it failed to fully function and
provide the necessary braking capabili
\Jhen the machine engine
quitu thereby rendering the
meaning
section 77o404 a
conclude
and find that a violation of
77. 04(a), has been
established~ and the contested
::IS AFFIRMEDo

Significant and Substantial Violations
A uusignificant and substant
" <Fiolation
described in
section 104(d) (1) of the Mine Act. as a violation nof such nature
,as could significantly and substantially contribute to the cause
and effect of 'a coal or other mine safety or health hazard. ijY
,30 C.F.R. § 814(d) (1). A violation
properly designated
significant and substantial utifr based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or

1696

illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc.¥ 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." u.s. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantialo U.S. Steel Mining Company« Inca, 6 FMSHRC
1866r 1868 {August 1984) u U.S. Steel Mining Company«
Inc., 6 FMSHRC 1573 9 1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violationr including the nature of the mine
involvedu Secretary of Labor v. Texasgulf, Inc. 9 10 FMSHRC 498
{April 1988)' Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987). Furtheru any determination of the significant
nature of a violation must be made in the context of continued
normal mining operations. National Gypsum, supra 1 3 FMSHRC 327,
329 (March 1985). Halfway" Incorporatedu 8 FMSHRC 8, (January
1986)
0

The respondent's posthearing brief does not specifically
the "significant and substantial" (S&S) violation issue
presented in this case. Inspector Mills believed that the cited
condition caused the fatal accident in question, and he concluded
that the violation was S&S because the grader was operated over
curved and hilly roadway grades and that the failure of the

~address

1697

accumulator to provide for more than one braking application
would affect the operation of the loader by not providing it with
critical braking capability in the event of engine failure while
it was traveling over such roadways.
Citing the appropriate "S&S" precedent Commission case
decisions, the petitioner takes the position that all of the
required elements for a significant and substantial violation of
section 77.404(a), have been shown in this case. In support of
its position, the petitioner asserts that a violation of
section 77.404(a), occurred because the respondent allowed a
machine in an unsafe operating condition to remain in use. The
petitioner further asserts that the violative grader condition
was such that it contributed to a discrete safety hazard in that
the failure of the accumulator to provide more than one braking
application resulted in the grader having no adequate primary
braking system with the engine off. Notwithstanding the fact
that the grader brakes worked properly with the engine on, the
petitioner believes that the,accicient itself shows why it was
important to have some braking capability with the engine off.
Agreeing that no one determined why the engine quit, the
petitioner asserts that given the fact that the grader was
operated on a road with many curves and grades, all braking
systems must be maintained in order to prevent a situation in
which the grader cannot be controlled.
The petitioner further asserts that there is a reasonable
likelihood that the hazard contributed to by the violation will
result in an injury, and points out that the inspector concluded
that the violation resulted in the fatality. Conceding the fact
that none of the investigations unequivocally stated the cause of
the fatalityu the petitioner nonetheless believes that the facts
case suggest that the inspectorPs conclusion is correct
::J.nd t:hat
loader engine failure resulted in a chain of events
which led to the fatalityo
In support of this conclusion, the
petitioner advances what
believes to be a plausible scenario
after the loader engine quit which culminated in Mr. Browning's
jumping
the loader and being run over by the machineo
Apart from the fatality which occurred in this case, the
petitioner concludes that the discrete hazard created by the
failure of the accumulator to provide for more than one braking
application with the engine off; particularly when the grader is
operated over an inclined roadway with many curves, presented a
reasonable likelihood that the hazard created would result in an
injury. Since the grader is a large mobile vehicle, the
petitioner further concludes that any accident or brake failure
involving such a large machine would reasonably likely result in
~n injury of a reasonable serious nature.
After careful consideration of all of the evidence and
testimony adduced in this case, including the arguments advanced

1698

by the petitioner, which I find persuasive and adopt as my
findings and conclusions with respect to the "significant and
substantial" nature of the violation, I conclude and find that
the violation which has been affirmed was significant and
substantial, and the inspector's finding in this regard IS
AFFIRMED.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
The parties stipulated that the respondent was a small-tomedium sized mine operator when the violation was issued in this
case, and that the payment of the proposed civil penalty
assessment would not affect its ability to continue in business.
In the absence of any evidence to the contrary, I adopt these
stipulations as my findings and conclusions on these issues.
History of Prior Violations
An MSHA computer print-out reflects that for a two-year
period beginning November 20, 1989, and ending April 28, 1991,
the respondent was assessed for thirty-seven (37) violations, and
paid civil penalty assessments totalling $6,122. Included in
this history are seven (7) prior violations of section 77.404(a),
the details of which are not known or documented in this case.
For an operation of its size, I cannot conclude that the
respondent's compliance record is such as to warrant any
additional increase in the civil penalty assessment that I
have made for the violation which has been affirmed.
Good Faith Compliance
The record reflects that the cited grader was removed from
service
the respondent and repaired. I conclude and find that
the violation was timely abated by the respondent in good faith.
Gravity
In view
my findings and conclusions affirming the
violation as a "significant and substantial" violation, I
conclude and find that the violation was serious.
Negligence
The respondent"s assertion that any negligence on the part
of grader operator Browning cannot be imputed to the respondent
is rejected. As noted by the Commission in the prior Steel
Branch Mining 'case, supra, at 15 FMSHRC 600, fn. 5, the
~ommission has held repeatedly that an operator is liable for
violations of mandatory standards committed by its employees.

1699

It would appear from the evidence developed by the inspector
in the course of his investigation that Mr. Browning was an
experienced and safe grader operator who conducted daily checks
of his equipment. The inspector indicated that Mr. Browning shut
down the grader which he normally operated because of some
problem, and proceeded to operate the grader involved in the
accident, a grader that he normally did not operate.
In support of the inspector's moderate negligence finding,
the petitioner asserts that the respondent is liable for
maintaining machinery in safe operating condition regardless of
its knowledge of unsafe conditions, but agrees that what the
respondent knew or should have known is relevant in determining
the appropriate penalty. In this case, the inspector believed
that the respondent was responsible for maintaining its equipment
in safe operating condition and in compliance with the manufacturer's specifications. The inspector's unrebutted testimony
indicated that the respondent's master mechanic admitted that he
was unaware of the service manual recommendation that the accumulator should provide approximately five brake applications with
the grader engine off, and equipment manager Roberts testified
that he was unaware of any accumulator pressure checks ever being
made for the grader, and had no knowledge that the grader
accumulator had ever been tested.
The petitioner concludes that since Mr. Roberts believed
that the only cause for the failure of the accumulator was wear
in the brake disc, it was incumbent on the respondent to check
this out, and that the respondent's failure to present any
evidence that the accumulator had ever been tested reflects that
it had no method of prevention maintenance which could have
detected the condition prior to the accident. Under the
circumstances, the petitioner further concludes that the cited
condition supports a finding of moderate negligence.
I agree with the petitioner's arguments, and I conclude and
find that the violation was the result of a moderate degree of
negligence on the part
the respondent. The respondent;s
reliance on MSHAPs prior inspection of the grader, which did not
result in violations, as a defense to the violation, or to
support a finding of no negligence on its part 9 is rejected.
The inspector 0 s moderate negligence finding is affirmed.
Civil Penalty Assessment
The respondent's assertion that the Commission imposed the
u•special" civil penalty assessment for the violation in question
is erroneous. · The assessment was proposed by the u.s. Department
of Labor, Mine Safety and Health Administration (MSHA), an agency
separate from the independent Commission. The proposed assessment was calculated by MSHA following its assessment procedures
found in Part 100, Title 30, Code of Federal Regulation. It is

1700

well settled that the presiding judges is not bound by those
assessments regulations, and is free to impose a penalty on a de
novo basis, taking into account the civil penalty criteria found
in section llO(i) of the Act.
The respondent's assertion that since it has ceased
operations, it is inappropriate to impose any civil penalty
assessment for the violation this case is rejected. The Act
mandates the imposition of a civil penalty assessment when a
violation of any mandatory safety or health standard has
occurred. Further, the fact that an operator ceases any mining
operation at one location does not necessarily mean that it does
not intend to continue mining at some future time, either at the
same location using the same equipment, or at some other location
using the existing equipment.
The respondent's suggestion that no civil penalty should be
assessed in this case because ()f the inordinate delay between the
time the citation was issued and the date of the issuance of the
proposed penalty assessment is rejected. The record reflects
that the respondent informed MSHA of its assessment contest and
request for a hearing on May 28, 1992, and that the petitioner's
filing of the proposed civil penalty assessment with the
Commission followed on July 16, 1992. In any event, the
respondent presented no evidence to establish that it was
prejudiced by any delays in this matter, or that it was in any
way prevented or adversely affected in presenting its defense to
the citation, including calling its own witnesses and crossexamining the inspector.
On the basis of the foregoing findings and conclusions, the
facts presented in this caseff and taking into account the civil
penalty assessment criteria found
section llO(i) of the Act,
I conclude and find that a civil penalty assessment of $4,500 is
reasonable and appropriate for the violation.

ORDER
The respondent IS ORDERED to pay a civil penalty assessment
of
ff500" for the violation which has been affirmed. Payment
shall be made to the petitioner (MSHA) within thirty (30) days of
the date of this decision and orderu and upon receipt of payment,
this matter is dismissed.

~.g:~
Admin1strative Law Judge

1701

Distribution:
Patrick L. DePace, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Boulevard, Room 517, Arlington, VA 22203
(Certified Mail)
Roger L. Sabo, Esq., Schottenstein, Zox & Dunn, Huntington
Center, 41 South High Street, Columbus, OH 43215 (Certified
Mail)
jml

1702

FEDERAL lilliE

COJIIIISSIOH
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 161993
PEABODY COAL COMPANY,
Contestant
v.

CONTEST PROCEEDING
Docket No. KENT 91-179-R
Citation No. 3419830; 2/11/90

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

Martwick Underground Mine
Mine I.D. No. 15-14074
DECISION

Appearances:

David R. Joest, Esq., Peabody Coal Company,
Henderson, Kentucky, for contestant;
William F. Taylor, Esq., Office of the
Solicitor, u.s. Department of Labor,
Nashville, Tennessee, for Respondent

Before:

Judge Melick

This case is before me upon remand by the Commission
by orders dated Md.b..;h 25 and April 30, 1993, to determine
(1) whether the previously approved ventilation plan for
the Peabody Coal Company (Peabody) Martwick Mine is not now
suitable to the conditions of that mine and (2) whether the
ventilation plan provision now advocated by the Secretary
is suitable to the Martwick Mineo In this proceeding the
Secretary bears the burden of proof on these issues. See,
Secretary Vo Peabody Coal Co., 15 FMSHRC 381, 389 (1993);
Secretary Vo Peabody Coal Co., 15 FMSHRC 628 (1993).
Under the previously approved ventilation plan Peabody
was permitted to conduct roof bolting in its deep cut entries
without line curtain and without any prescribed minimum
ventilating air in the entryo Under the Secretary's proposed
modificationu as amended at hearings on June 17u 1993, without
objection to the amendment itself, Peabody would be required
to extend the line curtain into deep cut entries during the
roof bolting phase of the mining cycle to within 4 rows of
bolts outby the row being installed and would be required to
maintain 3,000 cubic feet per minute (cfm) ventilating air at
the inby end of the line curtain.
There is no dispute that the Martwick Mine, a medium-

sized mine, liberates large volumes of methane and, as a
result, is subject to the 15-day spot inspections applicable

1703

under Section 103(i) of the Act to mines liberating more than
200,000 cubic feet of methane during a 24 hour period. It is
further undisputed that methane is liberated from the working
units of this mine and recent tests performed by Peabody showed
liberation of 11,131 cubic feet of methane per 24 hours from
the face of the No. 7 entry of the No. 1 Unit. In addition,
the methane concentrations during the testing period on May 27,
1993, reached a maximum of .3 percent. These tests were performed, however, with partial line curtain in place and
approximately 648 cubic feet per minute of ventilating air at
the end of the line curtain 32 feet from the face. 1 The samples
were obtained approximately 12 inches from the face and 12 inches
from the roof of the No. 7 entry. A similar test performed in
the No. 2 Unit No. 6 entry under similar conditions resulted in
a similar maximum concentration of .3 percent methane.
Additional tests performed under the direction of Mine
Safety and Health Administration (MSHA) senior Mining Engineer
Charles D. Campbell demonstrated, through the use of a tracer
gas, the air flow patterns in' ·a. typical entry at the Martwick
Mine under the previously approved ventilation plan and under
the proposed MSHA modification (see Government Exhibit Nos. SA,
6A and 9A). Campbell is a graduate civil engineer and registered professional mining engineer with significant experience
in mine ventilation. He conducted the tracer gas tests at the
Martwick Mine along with two other MSHA ventilation specialists,
Mark Shultz and Louis Stanley. In summary, under conditions
permitted by the preexisting ventilation plan the studies show
virtually no air movement within approximately 25 feet of the
face (Government Exhibit No. 9A). The studies show that even
with a modified deflector curtain (which was not required under
the previous plan) there was virtually no air movement within
approximately 20 feet of the face~ On the other hand, with
the changes in the ventilation plan now proposed by MSHA, the
ventilating air clearly sweeps the face area. 2 It may reasonably be inferred from these tests that, under conditions
permitted by the previously approved plan, methane liberated
at the face would not be diluted, removed, or rendered harmless$

Under the previously approved ventilation plan roof
bolting would have been permitted without any line curtain in
the entry (See Government Exhibit No. SA)o
2

At hearing the Secretary represented that subsequent
to the initial hearings, he has further liberalized his proposed
requirements by permitting the line curtain to be extended to
within four rows of roof bolts outby the row being installed by
the roof bolting machine. Under the original proposal the
curtain was required to have been extended to within two rows
of bolts outby the row being installed.

1704

but would be left in an unventilated area to accumulate in
increasing concentrations while the roof bolting machine
operated in its phase of the mining cycle.
It is undisputed that an electrically operated roof
bolting machine, such as used in the Martwick Mine, could
provide a source of methane ignition if it were in an impermissible condition, should the drill strike rock and cause
sparking or should the roof bolt strike rock or the face
place while being inserted. The extreme potential hazard is,
of course, the presence of explosive concentrations of methane
with oxygen and an ignition source.
In summary, the evidence shows that the Martwick Mine
liberates large volumes of methane, that methane is indeed
liberated from face areas particularly in newly cut faces and
that such methane could reasonably be expected to be liberated
during the roof bolting phase of the mining cycle. Further, it
is reasonable to infer from th~ tests performed by the Secretary
that under conditions permitted to exist under the previously
approved ventilation plan, little or no methane present in the
area 20-to-25 feet outby the face area would be diluted, removed
or rendered harmless, that the roof bolting machine would be
permitted to operate in the vicinity of such unventilated areas
and that the roof bolting machine could at any time become an
ignition source.
Under these circumstances wherein the Secretary has
objectively identified a measurable safety hazard that is not
addressed by the previously approved ventilation plan I find
that the Secretary has met her burden of proving that such plan
not now suitable for the Martwick Mineo The Secretary hasQ
also met her burden of proving that
proposed
ications address the above safety hazard by requiring
ventilation adequate to dilutev remove and render harmless the
subject hazard of methane gas and therefore such modifications
are indeed suitable to the Martwick Mine.
p

While it is not necessary
the decision
this case
Peabody has waived the opportunity to present cost
estimates towards a cost-benefit analysisv I note that the
Secretaryus proposed modifications are essentially without
cost or of only minimal cost to Peabody. Under either the
previously approved ventilation plan or the proposed modification the brattice curtain must be in place to within 10 feet
the continuous miner during the cutting cycle. Since that
curtain would ordinarily remain in place until the next phase
of the mining·cycle, the roof bolting phase, three to four rows
of roof bolts could be inserted before any additional line
curtain need be hung. That curtain would, in any event,
ordinarily have to be extended again when the continuous miner
returns for its next cutting cycle. Thus, in any event, the

1705

cost of implementing the Secretary's proposed modifications
to Peabody's ventilation plan are minimal or nonexistent
while the benefit toward the safety of miners is significant.
In any event, I find that the Secretary 's proposed
modification to the Martwick Mine ventilation plan is indeed
"suitable" to the mine and the previously approved lan is
no longer suitable. Citation No. 3419830 is accor 'ngly
AFFIRMED and Contest Docket No. KENT 91-179-R is D IED.

Distribution:
David R. Joest, Esq., Peabody Coal Company,
1951 Barrett Court, P.O. Box 1990, Henderson,
KY 41420-1990 (Certified Mail)
William F. Taylor, Esq., Office of the Solicitor,
u.s. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215 (Certified Mail)
/lh

06

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG l 61993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
ON BEHALF OF
CLETIS R. WAMSLEY, AND
ROBERT A. LEWIS,
Applicant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEVA 93-375-D
MSHA Case No. HOPE CD 93-01
MSHA Case No. HOPE CD 93-05
Docket No. WEVA 93-376-D
MSHA Case No. HOPE CD 93-02

v.
MUTUAL MINING, INC.,
Respondent

Mutual Mine I

ORDER OF TEMPORARY REINSTATEMENT
Appearances:

Before:

Patrick L. DePace, Esq., Office of the Solicitor,
U. s. Department of Labor, Arlington, Virginia,
for the Applicant;
W. Jeffrey Scott, Esq., Grayson, Kentucky, for the
Respondent.

Judge Amchan

On December 22v 1992v Cletis R. Wamsley and Robert A. Lewis
::iled discrimination complaints with the Mine Safety and Health
Administration (MSHA) alleging that they were discharged from
~heir employment in retaliation for safety activity in violation
of section 105(c) of the Act. On July 6v 1993, MSHA filed an
Application for Temporary Reinstatement on behalf of the two
employeesv which was received by the Commission on July 7. On
July 19v Respondent requested a hearing on the MSHA applicationv
which was conducted in Charlestonv West Virginiav on August 5v
1993 1
0

Pursuant to the procedural rules of the Commission,
29 C.F.R. § 2700.45(d)v the issue in a temporary reinstatement
hearing is limited to whether the minersQ complaints were
frivolously brought. The Secretary of Labor has the burden of
proving that the complaints were not frivolous.
In the instant
case it is clear that the Applicant has established a prima facie
case of discrimination.
I also find that despite some evidence

1
Commission rules specify that a hearing on a temporary reinstatement
application should be held within ten days of the request for a hearing.
However, due to scheduling conflicts, August 5 was the first day on which it
was feasible to conduct the hearing in this matter.

1707

rebutting the prima facie case, the record as a whole establishes
that the complaints were not frivolous.
On Thursday, December 17, 1992, the United Mine Workers
safety committeemen, Cletis Wamsley and John Taylor, conducted an
inspection, or "safety run" of Respondent's surface mine in
Holden, Logan County, West Virginia (Tr.14-15). At the end of
their inspection Mr. Wamsley and Mr. Taylor presented a list of
safety defects to Respondent (Tr. 15). The next day, Friday,
December 18, 1992, the committee submitted the same list to the
Mine Safety and Health Administration and requested an inspection
of their employer's facility, pursuant to section 103(g) of the
Act (Tr. 15, Exh. G-1).
on Monday morning, December 21, 1993, MSHA began its
inspection of Mutual Mining's worksite (Tr. 18, Exh. G-3). That
afternoon twelve of Respondent's twenty-four employees were laid
off (Tr. 20). Among those laid-off were all three members of the
Union Safety Committee, Cletis Wamsley, Robert Lewis, and John
Taylor2 (Exh. G-2).
·
The Applicant has established a prima facie case of
discrimination with regard to the discharge of Mr. Wamsley and
Mr. Lewis. There is no question that complainants engaged in
protected activity. Both men were members of the Union safety
committee. Mr. Lewis informed his foreman on December 16, that
he was going to participate in the Union safety inspection on
December 17 (Tr. 66). Although he did not participate in the
physical inspection due to illness, he did assist in planning for
the inspection and was obviously identified with the inspection
by Respondent (Tr. 61-66).
Moreover, as a member of the
committee, he participated in the decision to present the union
request for a section 103(g) inspection to MSHA (Tr. 63).
Mr. Wamsley participated in the union inspection as well as the
request for inspection to MSHA (Tr. 14-15). He, as well as a
management representativev also accompanied the government
inspector during the course of the MSHA inspection on
December 21, 1992 (Tr. 18-19v 95-97) • 3
Respondent was aware of t.he safety activity. When MSHA
began its inspection on December 21, it provided company
officials with the list of alleged safety defects prepared by the
Union. Allan Roe, the job superintendent for Respondent
commented that the list was the same one presented to him by the

2

Mr. Taylor bas been reinstated by Respondent (Tr. 37-38).

~he management representative, Foreman Wayne Thornbury, maintained radio
contact with Superintendent Allan Roe, advising him constantly as to which
pieces of equipment MSHA regarded as violative of the Act and its regulations
(Tr. 99).

1708

Union safety committee a few days earlier (Tr. 25). It was,
therefore, obvious to Respondent that Wamsley and Lewis were
participants in asking for MSHA inspection.
Mr. Lewis and Mr. Wamsley suffered an adverse action. They
were both discharged on the day of the MSHA inspection, hours
after the company became aware of the section 103(g) complaint
{Tr. 20). The timing of the discharges creates an inference that
the lay-offs were related to their protected activities.
The miners' prima facie case is weak with regard to evidence
of anti-safety animus, often a factor in finding a retaliatory
discharge. Mr. Roe, Respondent's job superintendent, allegedly
told Mr. Lewis and Mr. Wamsley that he regarded union safety
complaints as "suggestions" (Tr. 17). A foreman, Wayne
Thornbury, apparently once warned that Union safety complaints
would result in all of Respondent's employees losing their jobs
{Tr. 58). I find neither remark to be an indication of animus
that would indicate a desire toretaliate against the
complainants. On the other hand, Respondent, which was having a
degree of financial problems at the time of the inspection,
clearly was less than happy to experience the section 103(g)
inspection by MSHA. I draw an inference of animus from the
timing of the discharge--despite the fact that Respondent had
experienced section 103(g) inspections in the past and had not
retaliated against any of its employees in those instances. The
fact that an employer has not retaliated in the past for
protected safety activity does not preclude the possibility of
retaliation in the present--particularly given the financial
situation of the Respondent at the time of the instant
inspectiono
There is considerable evidence which supports Respondent's
contention that the December 21v 1992 discharge of Mr. Wamsley
and Mro Lewis was not motivated by a desire to retaliate for
their initiation of the MSHA inspection. The company has
established that it anticipated reduced demand for its coal from
Island Creek Coal Company for whom it is a contract miner (Tro
128 8 171-173, 193) o4 Respondent had also learned on November 30,
1992, that a $486,250 judgment in favor of the United Mine
Workersu Pension Fund had been rendered against it (Tr. 183-187,
Exho R-1)o That month Mutual Mining also received a $240,000
judgment against it in favor of Eastern Kentucky Explosives
Company (Tro 187-188)
However, possibly the most persuasive
0

~espondent, however, has not established that its expectations for a
reduction in coal purchased by Island Creek was realized. The record
indicates that Respondent is producing and selling the same amount of coal
since the lay-offs as it did before the lay-offs (Tr. 213). Under the terms
of its contract.with Island Creek, which has since been purchased by
Consolidation Coal Company, Respondent could sell coal to other customers only
with permission from Island Creek (Tr. 173).

1709

evidence supporting the company's position is the fact that when
Wamsley and Lewis were laid-off, ten other employees were also
laid-off, nine of whom apparently did not engage in safety
activity (Exh. G-2). 5
If one considers only the facts known to Mr. Wamsley and
Mr. Lewis when they filed their discrimination complaints, the
complaints are obviously "not frivolous". The two miners had no
reason to believe that any lay-offs were being planned (Tr. 24,
67) and knew only that as soon as the MSHA inspectors finished
their walkaround inspection on December 21, that they were
discharged. For Wamsley and Lewis to conclude that there was a
relationship between the discharges and their safety activity was
reasonable.
If one considers in addition the evidence adduced at hearing
and asks whether the Secretary has a reasonable basis for
proceeding further with the complaints filed by Wamsley and
Lewis, the issue is a closer.one • . As Respondent contends, it is
not that easy to conclude that a company would discharge half its
workforce, including nine employees who did not engage in
protected activity to get rid of Wamsley and Lewis.
Nevertheless, the Respondent's evidence does not exclude such a
possibility.
"Red" Hatton, Respondent's manager, testified that the
decision to lay-off employees at Mutual's Holden worksite was
made the day of the inspection (Tr. 202-203). Thus, this is not
a case in which the employer has convincingly shown that the layoffs were planned far in advance of the protected activity and
couldn't possibly be related to that activity. Similarly,
Superintendent Allan Roe testified that on December 21, 1992, he

~espondent has also raised two other reasons for the lay-off which the
undersigned finds totally unpersuasive. First is the fact that part of Mutual
Mining's activities at the worksite, designated as "Job #2" had almost been
completed. Respondent's manager, Astor "Red" Hatton conceded that this had
very little, if anything to do with the December 21, 1992 lay-off (Tr. 209).
Superintendent Roe also mentioned the possibility of a strike occurring at the
expiration of th~ wage agreement between the United Mine Workers and the
Bituminous coal Operators in February, 1993. Respondent has provided no
persuasive rationale as to why it would be economically advantageous for it to
lay-off employees in anticipation of a strike. Indeed, it would seem that it
would be more advantageous to mine the maximum amount of coal before the
strike took place, in anticipation of shortages that might occur during the
strike.

1710

made some chan~es to original list of employees to be laid off
(Tr. 149-150).
What stands out in Mr. Roe's testimony is that
while the original list went just far enough to capture Mr. Lewis
and Mr. Wamsley in the lay-offs, he added the names of five
employees with greater seniority because he was advised by
Respondent's labor consultant that the original list "wouldn't
work" (Tr. 136-137). Since these five employees were
subsequently recalled (Tr. 150-151), there is a possibility that
the change was made so that the dismissal of Mr. Lewis and
Mr. Wamsley would not stand out in light of their protected
activity.
Moreover, the fact that Respondent may have had legitimate
motives for laying off some employees, does not rule out the
possibility that it laid off Mr. Lewis and Mr. Wamsley for
retaliatory reasons, or a combination of legitimate and
illegitimate reasons. The undersigned believes that the
Secretary should be allowed to probe further into Respondent's
motivation, if he proceeds further with the discrimination
complaints. Given the fact that Lewis and Wamsley are the two
most senior employees who were not recalled, it is conceivable
that the lay-off and recall was structured to capture these two
employees and that, but for their safety activity, only those
employees hired in 1991 would have been discharged for economic
reasons (See exhibit G-2). Indeed, Mr. Wamsley testified that
this is precisely what he believes occurred. (Tr. 28-29).
Another factor that casts some doubt on Respondent's
position is the fact that its employees have continued to work
ten hour days, Saturdays and through vacations since the lay-offs
(Tr. 47-52, 195). The undersigned believes that the Secretary
should be allowed further opportunity to probe the legitimacy of
'the lay-off of Mr. Wamsley and Mr. Lewis in light of the overtime
being worked by those employees who were retained.
In conclusion, I find that the Applicant has established a
prima facie case of a retaliatory discharge in violation of
section 105(c) of the Act. In a hearing on the merits of this
discrimination casev the burden of proof would thus shift to
Respondent to rebut that prima facie case or affirmatively
establish that Mr. Wamsley and Mr. Lewis would have been laid
off even if they had not engaged in protected activity.
Secretary on behalf of Robinette v. United Castle Coal Co.
3 FMSHRC 803 (April 1981).
Although Respondent has introduced
some evidence tending to rebut the prima facie case, it has not

~he testimony of Mr. Roe is not totally consistent with that of
Mr. Hatton with regard to the planning of the lay-offs. Whereas Roe indicated
that lay-offs had been contemplated by Respondent for several months prior to
December 21, Hatton testified that no decision to lay-off any employee was
made until the morning of December 21, 1992 (Tr. 122-3, 203).

1711

done so in a manner so convincing as to persuade the undersigned
that it would necessarily prevail on the merits in a hearing on
the discrimination complaint. Thus, its evidence in this
proceeding falls far short of persuading me that the Secretary's
case is a frivolous one.
ORDER
Respondent is hereby ordered to reinstate Cletis Wamsley
and Robert Lewis to the positions from which they were discharged
on December 21, 1992, or to an equivalent position, at the same
rate of pay and with equivalent duties.

~

Administrative Law Judge
703-756-4572

Distribution:
Patrick L. DePace, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)
W. Jeffrey Scott, Esq., 311 Main street, P.O. Box 608, Grayson,
KY 41143 (Certified Mail)

1712

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATNE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 1 8 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 92-333-M
A.C. No. 23-02000-05505-A

v.
Stockton Quarry Mine
JJ. M. KARNES, Employed by

J. H. Shears 1 Sons,
Incorporated,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Barbour
Statement of the Proceeding

This proceeding concerns proposals for assessment of civil
penalties filed by the Petitioner against the Respondent pursuant
to Section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820{a), seeking civil penalty assessments for
three alleged violations of certain mandatory safety standards
found in Part 56, Title 30, Code of Federal Regulations.
The parties now have decided to settle the matter,
and the Secretary has filed a motion pursuant to Commission
Rule 30c C.F.R. § 2700.30~ seeking approval of the proposed
settlement.
citations, initial assessments, and the proposed
settlement amounts are as follows~
Citation No.
3901563

3901573A

3901573B

Date

30 C.F.R.
section

10/16/91
10/17/91
10/17/91

56.6001
56.15005
56.11001

Assessment
$150
$150
$100

settlement
$-0-

$75
$50

In support
the proposed settlement disposition of this
case 0 the parties have submitted information pertaining to the
six statutory civil penalty criteria found in Section 110(i) of
the Act, included information regarding Respondent's size,
ability to continue in business and history of previous
violations.
In particular, with regard to Citation No. 3901563,
Petitioner notes that the citation was issued because explosives
were not being stored in a suitable magazine or a safe location.
The Petitioner states on an investigation into the facts
surrounding the alleged violation has revealed: (1) Respondent

1713

did not create the condition and was not employed at the mine
when it came into existence; (2) neither Respondent nor his
miners uses explosives in performing their duties at the mine;
(3) Respondent took appropriate steps to bring the condition to
the attention of his superiors; (4) when his superiors failed
to rectify the problem, Respondent took independent steps
substantially reducing the exposure of the miners to the danger
posed by the condition; and (5) Respondent did not have authority
to remedy the condition. The Petitioner argues given these
circumstances the purposes of the Mine Act are not served by
pursuing a civil penalty against Respondent and the citation
should be vacated.
With respect to Order No. 3901573A and Citation
No. 3901573B, which allege that Respondent was working 18 feet
above ground without a safety belt and line and that safe means
of access was not proved to the work area, Petitioner stated
that: (1) a belt and line was not provided to Respondent,
(2) Respondent made good faith efforts to abate the conditions.
Finally, Petitioner notes that Respondent is not permanently
employed and is working presently on a sporadic basis.
CONCLUSION

After review and consideration of the pleadings, arguments,
and submissions in support of the motion to approve the proposed
settlement of this case, I find that approval of the suggested
vacation of Citation No. 3901563 and the suggested reduction in
the penalties assessed for the remaining subject violations are
warranted and in the public interest. Pursuant to 30 C.F.R.
§ 2700.30 9 the motion IS GRANTEDu and the settlement is APPROVED.
ORDER
Respondent IS ORDERED to pay civil penalties in the
settlement amounts shown above in satisfaction of the violations
in questionf and Petitioner IS ORDERED to vacate Citation No.
3901563. Payment is to be made to MSHA within thirty (30) days
of the date of this proceeding and upon receipt of payment, this
proceeding is DISMISSED.

3tvr·cl r !lo--,/a__,A_
David F. Barbour
Administrative Law Judge
(703)756-5232

1714

Distribution:
Steve Turow, Esq., Office of the Solicitor,
Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)

u.s.

L.M. Karnes, 603 East Poplar, Fort Gibson, OK
(Certified Mail)
fepy

1715

74434

Suite

516,

FEDERAL 11D1E SAFETY ARD BBAI.TH REVIEW COJIIIISSIOH
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 181993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

:

CIVIL PENALTY PROCEEDINGS

:

Docket No. KENT 92-919
A.C. No. 15-10396-03557

:

Docket No. KEN~ 92-920
A.C. No. 15-10396-03558

..

v.

WILGAR LAND COMPANY, INC. ,
Respondent

.
0

No. 3 Mine

DECISION APPROYING SETTLEMENT
Appearances:

Mary Sue Tay,lor, Esquire, Office of the
Solicitor, u.s. Department of Labor,
Nashville, Tennessee 1 for Petitioner;
Barry Johns, Wilgar Land Company, Inc.,
Robinson Creek, Kentucky, for Respondent

Before~

Judge Melick

These cases are before me upon petitions for assessment
of civil penalty under Section 105(d) of the Federal Mine
Safety and Health Act of 1977 (the Act). At hearings, the
parties filed a motion to approve settlement agreement and
to dismiss the cases. A reduction in penalty from $2,755
to $1 9 000 was proposed. I have considered the representations
and documentation submitted in these cases 1 and I conclude
~hat the proffered settlement is consistent with the criteria
section 110 ( i) of t:.he Act.
WHEREFORE, the motion for approval of settlement is
and it is ORDERED that Respondent pay a penalty of
000
in
equal monthly installments commencing on eptember 1,
9
1993 , and continuincr on t.he fir t da of each mon
thereafter
untii fullv
paid.
~
......
""
I
GRANTED 0

/Gacy

Admin

1716

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor,
u.s. Department of Labor, 2002 Richard Jones Road,
suite B-201, Nashville, TN 37215 (Certified Mail)
Barry Johns, Wilgar Land Company, Inc., Box 266,
Robinson creek, KY 41560 (Certified Mail)
Robert Newsome, Wilgar Land Company, Inc.,
P.O. Box 2200, Robinson Creek, KY 41560 (Certified Mail)
\lh

1717

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FAllS CHURCH, VIRGINIA 22041

AUG 1 81993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on Behalf of KIRBY SENTER,
Applicant
Vo

BLACK DRAGON MINING COMPANY,
Respondent

TEMPORARY REINSTATEMENT
PROCEEDING

.
.
.

Docket No. KENT 93-796-D
PIKE CD 93-05
No. 1 Mine

ORDER GRANTING MOTION TO WITHDRAW
REQUEST FOR HEARING
AND

ORDER OF TEMPORARY REINSTATEMENT
On August 13, 1993, RespondentJwho had filed a request for a
hearing on the Secretary's Application for Temporary
Reinstatement of Kirby Senter, orally moved to withdraw its
request for hearing, based on the Secretary's representation that
the complaint in this case would be filed on or before
September 10, 1993.
Premises considered, the motion is GRANTED, and the hearing
scheduled in Pikevilleu Kentucky on August 18u 1993u is CANCELED.
I have considered the Secretaryus application~ including the
affidavit of Lawrence M. Beeman, Chief of Technical Compliance
and Investigation Division, MSHA, and determine that the miner's
complaint to the Secretary was not frivolously brought.
Accordinglyu IT IS ORDERED that Respondent shallu effective
August 12 9 1993u reinstate Kirby Senter to the position of a
continuous miner operator at the Black Dragon No. 1 Mine or to an
equivalent position with the same payu duties and benefits he
would receive had his employment not been terminated, and to
continue him in that position pending action on the Secretary's
complaint for permanent reinstatement.

j~ !a:!:cf:~d
Administrative Law Judge

1718

Distribution:
Stephen D. Turow, Esq., Office of the Solicitor, U. s. Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(Certified Mail)
Mary Sue Taylor, Esq., Office of the Solicitor, U. s. Department
of Labor, 2002 Richard Jones Road, suite B-201, Nashville, TN
37215 (Certified Mail)
Charles J. Baird, Esq., Baird, Baird, Baird & Jones, P.s.c.,
415 Second Street, P. 0. Box 351, Pikeville, KY 41502 (Certified
Mail)
dcp

1719

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1 Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 1 81993
U.S. STEEL GROUP, MINNESOTA
ORE OPERATIONS,
Contestant

CONTEST PROCEEDING
Docket No. LAKE 92-265-RM
Order No. 4097118; 3/23/92

v.

Maintenance Dept. 21-00819
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)u
Respondent
and
UNITED STEELWORKERS OF
AMERICA, LOCAL 1938,
Miners
DECISION
Appearances~

lBeforeg

Miguel J. Carmona, Esq., Office of the Solicitor,
u.s. Department of Labor, Chicago, Illinois;
for Respondent;
William M. Tennant, Esq., General Attorney,
u.s. steel, Pittsburgh, Pennsylvania,
for Contestant;
James Ranta Staff Representative 1 United
Steelworkers of America 0 Virginia, Minnesota,
for Miners.

Judge Barbour

In this proceeding arising under the Federal Mine Safety and
Health Act
1977 (i 1]1Jiine Act 00 or 01 Act") u 30 u.s.c. § 801 et
~u u.s.
Group 7 Minnesota Ore Operations,
contesting
the validity
an imminent danger order of withdrawal issued
pursuant to section 107(a) of the Acto 30 u.s.c. § 817(a}, and an
associated citation issued pursuant to section 104(a) of the Act,
30 u.s.c. § 814(a), for violation of a mandatory safety standard,
30 C.F.R. § 56.14211(b), and designated as a significant and
substantial contribution to a mine safety hazard (an "S&S"
violation). A hearing was held and the parties submitted
posthearing briefs.
FACTUAL AND PROCEDURAL BACKGROUND

on March 25, 1992, Federal Mine Inspector Arthur J. Toscano
and Ronald E. Brendle, a supervisory mine inspector accompanying
Toscano, conducted an inspection at u.s. Steel Group, Minnesota

1720

Ore Operations' ("U.S. Steel") Minntac Plant, a surface taconite
operation, located in st. Louis County, Minnesota. Toscano and
Brendle were driving in an automobile leaving the mine for lunch,
when Brendle observed Michael J. Brohman, a railroad ore car
repairman at the plant, bending under a railroad ore car. The
car was in a half-raised position. Brohman was bent at the waist
near a wheel with his upper torso under the ore car. Brohman
remained in this position for about 10 seconds and then moved to
another wheel where he did the same thing.
Brendle stated to Toscano that Brohman's position looked
"extremely dangerous," so Brendle and Toscano stopped and got out
of the automobile to further observe Brohman. They saw Brohman
lower the ore car, and raise another ore car and start to bend
under the other car. At that point, a train stopped in the
inspectors• line of vision (the inspectors were about 100 feet
from Brohman), and the inspectors walked around the train to the
work site and asked Brohman what job assignment he was doing .
.. .,"

Brohman stated that he was inspecting the ore cars -- a job
that mostly required the inspection of brakes, wheels, air
cylinders, and rocker pivot areas. The inspectors asked Brohman
if he had to lift up the ore cars to do the job, and Brohman
stated that he did. They asked Brohman to show them how he did
it, and Brohman pulled an air control valve handle on a third ore
car. The handle activated a compressed air system that raised
the ore car 5 to 6 feet (in a half-up, pivoted position with all
wheels on the track). Brohman explained he inspected the brakes
and wheels while the ore car was in this position.
Toscano noticed that the ore car's compressed air system had
leaked and that the car was slowly creeping downward. Toscano
asked Brohman if he had the ore car blocked or mechanically
secured to keep it from falling on him. When Brohman answered he
did notu Toscano told Brohman that it was a very unsafe practice
and Toscano issued an imminent danger withdrawal order, pursuant
to section 107(a) of the Mine Act, to prevent him from doing the
job without first blocking the ore car from unintended motion.
Minutes laterp the inspectors spoke with Bill Holmes, a u.s.
Steel supervisor, and Randy Pond, a u.s. Steel safety engineer
for the maintenance and mining departments. Both knew of "a
light-weight aluminum prop which was supposed to have been used
to block these cars when they're out in the field to be inspected
the way that (Brohman] . • . was inspecting them." Tr. 16.
After the order of withdrawal was issued, Holmes instructed the
employees to u.se aluminum props when inspecting railroad ore
cars.
In conjunction with the order of withdrawal, Toscano also
issued a citation, because the ore car was not blocked or
mechanically secured in accordance with 30 C.F.R. § 56.14211, a

1721

mandatory safety standard for surface metal and nonmetal mines.
Section 14211(b} provides, in part: "Persons shall not work on
top of, under, or work from a raised component of mobile
equipment until the component has been blocked or mechanically
secured to prevent accidental lowering." Under 30 C.F.R.
S 56.1421l(d}, "a raised component of mobile equipment is
considered to be blocked or mechanically secured if provided with
a functional load-locking device or a device which prevents free
and uncontrolled descent." In addition, Toscano found that the
violation was S&S.
IMMINENT DANGER
Section 107(a) of the Mine Act, 30 u.s.c. § 817(a), provides
that if, upon inspection or investigation of a mine, an imminent
danger exists, an order shall be issued requiring the operator of
the mine to withdraw persons from the area until the imminent
danger no longer exists. Section 3(j), 30 u.s.c. § 802(j),
defines an imminent danger as "the existence of any condition or
practice in a coal or other mine which could reasonably be
expected to cause death or serious physical harm before such
condition or practice can be abated." The Commission has noted
that "the u.s. Courts of Appeals have eschewed a narrow
construction and have refused to limit the concept of imminent
danger to hazards that pose an immediate danger." Rochester &
Pittsburg coal Co., 11 FMSHRC 2159, 2163 (November 1989)
(citation omitted). The Commission has observed that use of the
word "imminent" means the danger must be "ready to take place(;]
near at hand[;] impending . • • [;]hanging threateningly over
oneus head[;] menacingly near." Utah Power & Light Co.,
13 FMSHRC 1617u 1621 (October 1991) (citation omitted). The
::::ommission also has noted that the courts have held that "an
imminent danger exists when the condition or practice observed
~ould reasonably be expected to cause death or serious physical
harm to a miner if normal mining operations were permitted to
proceed in the area before the dangerous condition is
eliminated. 99 11 FMSHRC at 2163 (emphasis omitted}, quoting
Eastern Associated Coal Corp. v. Interior Bd. of Mine Op. APP•u
491 F.2d 277p 278 (4th Cir. 1974). Finally the Commission has
adopted the seventh circuit 9 s holding that an inspector's finding
t1f an imminent danger must be supported "unless there is evidence
-::hat. he has abused his discretion or authority." Id. at 2164
(emphasis omitted)u quoting Old Ben Coal Corp. v. Interior Bd. of
Mine Op. AoP•u 523 F.2d 25, 31 (7th Cir. 1975); see also Wyoming
Fuel Co.u 14 FMSHRC 1282, 1291 (August 1992) (quoting same).
I conclude Toscano properly found an imminent danger
and properly issued the order of withdrawal pursuant to
section 107(a). The testimony establishes that each ore car is
equipped with two air cylinders and one air control valve on each
side of the car, which operate the dumping mechanism. The air is
supplied by an air compressor on the locomotive and transferred

1722

to the ore cars through metal pipe with rubber hose connections.
Each air control valve has three positions -- charge, lap (which
doesn't allow air in or out), and exhaust. The air cylinders are
activated to the lifting position by pulling a handle attached to
the air control valve. Pushing the handle releases the air and
allows the cylinders to "float" back to the down position. One
valve controls both cylinders. There is no solid, air-tight car
because air always escapes between the seals of the pressurized
piston.
The evidence establishes, and I find, that it takes about 7
to 10 seconds to lower an ore car by pushing the valve handle,
and that without pushing the handle and if an airline ruptures,
it takes approximately 30 seconds for the car to drift down. See
Tr. 57-59. The evidence further establishes, and I find, that
without pushing the handle and without a defective airline, it
takes over one minute for an ore car to gradually lower, leaking
air, from the fully raised position. Finally, I find that the
clearance between the box chassis and the pillow assemblies on
the wheel trucks is 20 inches, with 6 inches of clearance at the
pivot arm assembly. There is no clearance at the perch between
the wheels. I also find that an empty ore car weighs 40 tons.
Toscano testified that the air control valve handle is
positioned near a set of wheels where someone with a tool or part
of his clothing could bump the handle and release the car onto
himself. Toscano noted that Brohman was wearing a long jacket
(below his waist) that could possibly snag on equipment if he
leaned over. In addition, Toscano testified that the ground
conditions surrounding the ore car, i.e., tracks and spillages of
ore 0 constitute tripping hazards that might cause someone to fall
·:cowards the ore car
Toscano also stated that blown components
the air systemf ecg'og a blown valveg a blown air lineu or a
~ad leak in an air receiver tank, could cause the air system to
fail and the car to rapidly descend. Toscano knew of hydraulic
cylinder failures where there had been serious injuries. Toscano
also knew of an accident involving an air cylinder used to
control a chute with ore in it -- a hose, the fittings 0 and the
connections blew and the cylinder failed.
o

Toscano 0 howeveru had no experience working with the rocker
cars and was not familiar with the design of the ore car and its
system. Toscano did not inspect the ore car for problems
tlith air lines or the air system -- he only heard air leaking and
observed the car drifting down.
Brohman, on the other hand, has been a car repairman for
twenty years. He testified that he could hear air leaks when the
ore car was raised and could judge whether or not it was safe to
go underneath the car. He stated that if the ore car had an air
problem, it would not go to the raised position.

1723

Brohman also stated that once the car had been raised, it
was not likely to experience an air problem and drop because the
mechanics of the compressed air system restricted air from
escaping at one time. Brohman testified that no one could
inadvertently activate the valve handle to cause the car to lower
because the handle is located out of the way (one would have to
lean into the car) and he had never known an air line to break,
or a cylinder to fail when it was unloaded. Brohman was aware of
a dump cylinder exploding during repair. However, the cylinder
was under extreme pressure and, in any event, a miner would not
be under an ore car when it was being dumped with a load.
When Brohman made his inspections, the ore cars were empty.
Brohman and another car repairman each inspected about ninety
cars per day. In an inspection, Brohman looked at the wheels,
brakes and the undercarriage, as well as the floor beams, and air
cylinders. Everything could be inspected without raising the
car, but Brohman raised it to look at the undercarriage. Brohman
stated that there was ample time to make minor adjustments when
an ore car was in the raised position. It took Brohman about ten
seconds to change a set of brake shoes
positioning himself
over the side frame. Brohman had done it this way (without
blocking or securing) for twenty years
it was a common,
standard procedure at the plant.
Edward A. Muha, area manager of maintenance at the Minntac
Plant for eleven years, testified regarding the compressed air
system that raises the ore cars. Each car has four dump
cylinders and two dump valves. The valves control the entry and
release of air in the cylinders. The pipes supplying air to the
cylinders are 1-1/4 inch in diameter and the exhaust dump valves
are 1-1 2 inch in diameter. He testified that air would exhaust
faster through the dump valve than through a broken line because
the line
narrower than the valve. Thusu if air lines were
disconnected or otherwise broken,
would be impossible to get a
free and uncontrolled descent of the ore car. Further, if one
dump cylinder failedq the other would still work, and if both
cylinders fa
at once a car still would not fall free and
uncontrolled because the volume of air charging the bottom sides
of the dump cylinder would cushion the drop. Regarding
maintenance performed on ore cars at Minntac, Muha testified that
he was aware of only one dump valve that had been replaced. He
acknowledged that the valve seats had been replaced, but stated
that this was as part of regular maintenance.
The Senate Report for the Mine Act states: "The Committee
disavows any notion that imminent danger can be defined in terms
of a percentage of probability that an accident will happen;
rather the concept of imminent danger requires an examination of
the potential of the risk to cause serious physical harm at any
time." S. Rep. No. 181, 95th Cong., 1st Sess. at 38 (1977),
reprinted in Senate Subcommittee on Labor, Committee on Human

1724

Resources, 95th Cong., 2nd Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977 at 626 (1978).
In challenging the validity of the withdrawal order, u.s.
steel argues that the air system used to raise and lower the ore
car is not subject to such failure or accidental activation that
is likely to cause "free and uncontrolled" descent of the car. I
agree, but I do not conclude this means the order was invalidly
issued.
Based on Brohman's testimony that the valve handle was
located out of the way, I find that it was unlikely that the
valve handle would have been inadvertently activated. Unlike
Toscano, Brohman was totally familiar with the mechanics and
configuration of the ore car, and his testimony in this regard is
credible. Further, I conclude that the failure of a cylinder, a
cylinder valve, or an air line was unlikely given Muha's and
Brohman's testimony and the lack of any evidence offered by the
Secretary of such failings on·empty ore cars while they were
being inspected. I also conclude that the evidence fully
supports finding that given the mechanics of the compressed air
system, free fall of the car was unlikely. Muha's testimony
regarding the effect of the restricted air lines on the descent
of a car if the lines ruptured and the cushioning effect of air
in the cylinders if the cylinders failed was persuasive.
Nevertheless, even assuming everything about the system was
functioning normally, it is clear to me that Brohman had placed
himself in an imminently dangerous position. It is undisputed
that the 40 ton, raised ore car was not blocked before Brohman
went under it to perform the inspection and any quickly
accomplished and necessary repairs. The 11 safety devices"
preventing the raised ore car from an uncontrolled descent were
(1} the width of the air pipe and the exhaust dump valve, which
were too narrow to allow all the air to escape at once, (2) the
second cylinder which would still be working if the other
cylinder failed, and (3) the volume of air charging the bottom
sides of the pistons which would cushion the drop if both
cylinders failed. Howeveru none of these devices prevented the
ore car from descending due to normal leaks in the air system, a
descent that took approximately one minute from the fully raised
position and when Brohman was first observed under the car, the
car was but half raised; and none of these devices prevented the
ore car from a complete descent onto Brohman if for some reason
he had been unable to get out from under the car, e.g., loss of
consciousness, injury restricting movement, snagged clothing,
etc. (I do not accept that there is adequate clearance under the
car to assure safety. As I have found, clearance varied from 20
inches to none.)
When Brohman worked under the unblocked ore car, danger was
quite literally "hanging threateningly over [Brohman's] head,"

1725

creeping nearer with each passing second. No intervening
malfunction of the equipment or outside activation of the
equipment was necessary to initiate the hazard. Compare u.s.
Steel Group. Minnesota Ore Operations, Docket No. LAKE 92-247-RM
(6/16/93) (ALJ Barbour) 11-12. Had Brohman been caught under the
car, he would have been lucky to escape with only serious
injuries, and it bears emphasis that an accident was not just a
speculative possibility, for without any malfunction whatsoever,
the ore car was in the process of lowering toward Brohman. Under
these circumstances, I conclude that Brohman's failure to block
the ore car against motion reasonably could have been expected to
cause him serious physical harm or death.
VIOLATION OF 30 C.P.R. 5 56.14211(b)

To prevent a raised component of mobile equipment from
accidentally lowering, section 14211(b) requires that the
component be blocked or mechanically secured before persons
perform work "on top of," "under," or "from" it. The mandatory
safety standard considers a component blocked or mechanically
secured if a functional load-locking device or a device which
prevents "free and uncontrolled descent" is used. 30 C.F.R.
§ 56.14211(d).
Brohman testified that it is standard policy to use a stand
{prop) as a means of blocking the ore car when making a repair,
but the stand is not required when making an inspection. Brohman
stated that the purpose of the stand is "to do • • • major
repairs." Tr. 77. When making inspections, Brohman stated he
went under the car "[j]ust a little bit, just for a few seconds."
Id. Sometimes Brohman made running repairs on the ore cars,
e.g. 0 changing the brake shoes. Muha testified that "car
repairmen are
sent out to inspect the cars and make minor
repairsu change brake shoes, etcetera." Tr. 91. Muha testified
that the prop is used only for repair and not for inspection
because the man doesn't put himself in a precarious position and
it is not a free and uncontrolled descent. "[B]ut when the man
is putting himself in a position where he needs to be under there
and do some minor repairsu [the prop] is used.vo Tr. 96.
(Brohman and Muha appear to be at odds over whether the stand was
used for "major" repairs only or was also required for "minor"
repairs. In any event, both agreed it was not required for
inspections -- a position I reject when, like Brohman, a miner
puts all or part of his body under a car during the inspection.)
Muha further stated that the inspector is not supposed to go
under the car when he's inspecting. He's supposed to make the
inspection fro~ the outside (Tr. 96-97) because "if there are
leaks, • • • [the cars] come down and that's the only reason."
Tr. 101.
o

o

o

I conclude that Brohman violated section 142ll{b) by not
blocking the ore car before he leaned under it to perform his

1726

inspection. The regulation requires the component to be blocked
or mechanically secured before persons perform work. It is true
that Brohman was not conducting the inspection in an area where
repair work was usually performed and that Brohman did not
anticipate he would be required to perform major repairs to the
car while in the field. However, the regulation does not
distinguish between work performed during a field inspection and
work performed in a maintenance shop, nor does it distinguish
between minor and major repairs. Brohman positioned himself
under the raised and unblocked car to inspect it. Brohman's
testimony makes clear that inspection of the undercarriage was a
preliminary step to any repair work that had to be done and, I
therefore conclude, inspection was a part of the work cycle.
Because section 14211(b) applies to all work performed under a
raised component of mobile equipment, it applies both to
inspection and any subsequent repair that Brohman would have had
to make, and the ore car should have been blocked or secured
against motion.
SIGNIFICANT AND SUBSTANTIAL

Under section 104(d)(1) of the Mine Act, 30 u.s.c.
814(d} (1), a "significant and substantial" violation exists if
the "violation is of such nature as could significantly and
substantially contribute to the cause and effect of a coal or
other mine safety or health hazard." The Commission has held
that a violation is significant and substantial within the
meaning of section 104(d) (1) if, based on the particular facts
surrounding the violation, there exists a "reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co.u 3 FMSHRC 822, 825 (April 1981). The
Commission has stated~
§

Section 104(d) says that to be of a
significant and substantial nature, the
conditions created by the violation need not
be so grave as to constitute an imminent
danger
At the other extreme, there
must be more than just a violation, which
itself presupposes at least a remote
possibility of an injury, because the
inspector is to make significant and
substantial findings in addition to a finding
of violation. Our interpretation of the
significant and substantial language as
applying to violations where there exists a
reasonable likelihood of an injury or illness
of a reasonably serious nature occurring,
falls between these two extremes--mere
existence of a violation, and existence of an
o

o

o

1727

imminent danger, the latter of which contains
elements of both likelihood and gravity.
Id. at 828 (emphasis omitted). In Mathies Coal co.,
6 FMSHRC 1, 3-4 (January 1984), the Commission further 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 Commission also has held that the significant and substantial
nature of a violation must be determined in the context of
continued normal mining operations. u.s. Steel Mining Co.,
6 FMSHRC 1573, 1574 (July 1984). The Commission has emphasized
that "the contribution of the violation to the cause and effect
of a mine safety hazard is what must be significant and
substantial." u.s. steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984) (emphasis omitted).
Because I have concluded that Brohman's conduct constituted
an imminent danger and a violation of a mandatory safety
standardv I conclude that it also constituted a significant and
substantial violation. The evidence establishes that there was a
safety hazard contributed to by the violation in that there was a
possibility of the ore car lowering onto Brohman. Moreover, any
injuries Brohman would have suffered reasonably could have been
expected to be at least of a serious nature. Had normal mining
operations continued there would have been a reasonable
likelihood
an event in which there would have been an injury.
~INDINGS

AND CONCLUSIONS

Based on the foregoing, I hold that Order/Citation
No. 4097118 issued on March 25, 1992, validly states a condition
or practice constituting an imminent danger, and properly sets
forth a violation of section 56.14211, and validly states that
the violation was of a significant and substantial nature.

1728

ORDER

Accordingly, Order/Citation No. 4097118 is AFFIRMED.

J)tv';O f f5t?-16ot;/~
David F. Barbour
Administrative Law Judge
(703)756-5232

Distribution:
Miquel J. Carmona, Esq., Office of the Solicitor,
u.s. Department of Labor, 230 South Dearborn street, Chicago, IL
60604
(Certified Mail)
Billy M. Tennant, Esq., u.s. Steel Corporation, 600 Grant street,
15219 (Certified Mail)

Rm 1580, Pittsburgh, PA

Mr. James Ranta, United Steelworkers of America, Local 1938,
307 First Street, North, Virginia, MN 55792
(Certified Mail)
fepy

1729

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 1 81993
WILLIAM KROH,

DISCRIMINATION PROCEEDING
Complainant
Docket No. PENN 93-181-D
MSHA Case No. WILK CD 93-01

v.
UAE COAL CORPORATION
ASSOCIATES,
Respondent

Harmony Mine

DECISION APPROVING SETTLEMENT
Before Judge Amchan:
This case is before me pursuant to § 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et ~ The
parties have filed a stipulation of settlement.
I have reviewed the stipulation and find that it is
consistent with the public interest.
ORDER

WHEREFORE IT IS ORDERED that the stipulation of settlement
APPROVEDo Upon payment of the amount set forth in paragraph 1
c::n: the stipulation - t.his case
DISMISSED o

0Art~J.
~ ()'~~/\.-Cvv~

Amchan
Administrative Law Judge
703 756-4572

Distribution~

Cynthia Ro Vullo? Esqou Koffp Wendolowskiv Ferguson & Mangan, 22
East Union Streetv Suite 115 1 Wilkes-Barre, PA 18701-2721
John J. smalanskas, Esq.; Nogi, Appleton, Weinberger, & Wren,
PoC., 415 Wyoming Ave., Scranton, PA 18503
/jf

1730

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 191993

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

CIVIL PENALTY PROCEEDING

Docket No. SE 92-246-M
A.C. No. 09-00265-05515

v.

Junction city Mine

BROWN BROTHERS SAND COMPANY,
Respondent
DECISION
Appearances:

Beforeg

Michael K. Hagan, Esq., Office of the Solicitor,
U.S. Department. of Labor, Atlanta, Georgia,
for Petitioner;
Carl Brown, Brown Brothers Sand Company,
Talbotton, Georgia, for Respondent.

Judge Barbour

This civil penalty proceeding was initiated by the Secretary
of Labor ("Secretary") against Brown Brothers Sand Company
("Brown Brothers") pursuant to Sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. §§ 815
and 820. The issues are whether Brown Brothers violated three
mandatory safety standards for surface metal and non-metal mines
and 8 if sou the amount of the civil penalty to be assessed for
each violation" A hearing was held in Talbottonu Georgiao
the commencement of the hearing the parties stipulated to
the following~
lo

Brown Brothers
subject to the Mine Act and the
Commission°s jurisdiction;

2o

Brown Brothers is a small sand mine operator employing
nine to ten persons;

3o

The Secretary's hearing exhibit P-1 is a computer
printout reflecting Brown Brothers' history of prior
violations, which shows five prior citations during
the period from August 12, 1989 to August 11, 1991;

4.

Each of the citations was timely abated by Brown
Brothers in good faith.

See Tr. 3-4.

1731

DISCUSSION

On February 12, 1992, MSHA Inspector Earl Goldsberry issued
three citations to Brown Brothers. On March 13, 1992, the
Secretary proposed civil penalties of $50 for each alleged
violation. Brown Brothers contested the citations. on April 10,
1992, the Secretary amended the proposed civil penalties from $50
to $20. Exhibit R-1; Tr. 48-50.
Kine Act section
104(a)

Citation Number
3601852

Date
02/12/92

30 c.F.R. Section
56.12001

Citation 3601852 alleges that Brown Brothers used an
incorrect type and capacity of fuse in a circuit transmitting
power from a power cable to an air compressor. The citation
states: "The 10/4 AWG power cable suppl[y]ing 220 volts to the
air compressor located beside the employee house was fuse[d] with
200 amp fuses." Exhibit P-2. The citation alleges a violation
of section 56.12001 which sta~~s:
Circuits shall be protected
against excessive overload by fuses
or circuit breakers of the correct
type and capacity.
Inspector Goldsberry testified that he followed the National
Electric Code to determine the correct type and capacity of fuses
or circuit breakers, and that under the code a 30 amp fuse was
required in this instance. Tr. 15, 21. He testified that the
circuit was "over-fused . . . [I]f a fault would occur on that
wire(v the fault] . . . would burn the wire in two, and possibly
energize . . . a piece of metal equipment or create a fire
b.azard ~o Tr 14-15. He further testified that the correct type
and capaci t.y of fuse ~tmuld prevent such an occurrence because 01 a
0 amp fuse would have opened up and not damaged the circuit. 'v
o

Tr"

o

15 o

Goldsberry considered the risk of injury unlikelyu based on
nature
the condition and the amount of limited exposure of
employees to ·the condition§ but if injury had occurred, he
believed a fatality through electrocution; reasonably could have
been expected. Id. He did not find the violation constituted a
significant and substantial contribution to a mine safety hazard
(an ' 0 S&S 00 violation)" He regarded the degree of Brown Brothers 1
negligence as moderate, based on the electrical background of
Brown Brothers 0 employees. Tr. 21-22. Goldsberry stated that if
Brown Brothers employed an electrician, he would have held the
operator to a higher standard. Tr. 22.
~he

Carl Brown, the owner and operator of Brown Brothers,
testifying on behalf of the company, stated that Goldsberry

1732

failed to notice other violations that Brown indicated were in
existence when Goldsberry conducted the inspection. In so doing,
Brown appeared to be attempting to impeach Goldsberry's
competence as an inspector. Tr. 45-46.
There is no dispute, however, about the existence of the
alleged violation, and I therefore find Brown's attack on
Goldsberry's credibility (if that is what it was) to have been
irrelevant. I further find that use of the incorrect fuse
created a potential safety hazard, but I conclude that the
violation was not serious. I agree with Inspector Goldsberry
that an injury was unlikely to occur because of the lack of
employee exposure. I also conclude that Brown Brothers was
negligent in failing to use the correct type and capacity of
fuse.
I find the Secretary's amended proposed assessment of $20
appropriate, based on the non-serious nature of the violation,
Brown Brothers' negligence, B~own Brothers' stipulated small
history of previous violations, its small size, its good faith
abatement of the violation, and the lack of effect of the penalty
on Brown Brothers' ability to continue in business.
Mine Act Section

citation Number

104(a)

3601854

Date
02/12/92

30 C.F.R. Section
56.12008

Citation 3601854 alleges that Brown Brothers used an
improper fitting around a power cable where the cable entered an
air compressor. The citation states: "The 220 volt power cable
to the air compressor located near the employee house did not
enter the metal frame of the switch box through a proper
fitting. uu Exhibit P-3. The citation alleges a violation of
section 56ol2008 which states~
Power wires and cables shall be
insulated adequately where they pass
into or out of electrical compartments.
Cables shall enter metal frames of
motors 1 splice boxesv and electrical
compartments only through proper
fittings. When insulated wiresv other
than cables, pass through metal framesu
the holes shall be substantially bushed
with insulated bushings.
Inspector Goldsberry testified that the standard protects
against strain on electrical connections and prevents mechanical
damage that could occur if the cable moved on sharp edges.
Tr. 26. The fitting causes the cable to be tight through the
hole with no maneuvering room. Id. Goldsberry testified that
here the cable had no fitting whatsoever. He was of the opinion
that regardless of the fact that the cable was not damaged and

1733

was fully protected by insulation, it still should have been
protected by a fitting where it entered the compartment to comply
with the standard. Tr. 30-31.
Goldsberry testified that the air compressor was located in
an open area and there was no evidence of any frequency of
personnel coming in contact with it during the course of a
workday. Tr. 29, 31. Goldsberry was told that the air
compressor was only used occasionally, when a trucker needed air
in a tire. Tr. 31-32. The area surrounding the compressor was
dry. Tr. 31.
Goldsberry determined that injury was unlikely to occur as a
result of the condition because of the limited exposure of
personnel to the condition and because of the dry nature of the
surrounding area. However, if an injury had occurred, he
believed that death by electrocution reasonably could have been
expected. Tr. 27. The violation was not designated as S&S.
Brown Brothers' negligence was rated as moderate, for the same
reason as Citation No. 3601852. Id. The condition was promptly
abated by disconnecting the air compressor from the power cable.
Tr. 27-28.
Again, there is no dispute about the existence of the
violation and I find that it occurred as alleged. I further find
that use of the improper fitting created a potential safety
hazard, but I agree with Goldsberry that the violation was not
serious. As Goldsberry noted, the air compressor was located in
a dry area and there was no evidence of any frequency of
personnel coming in contact with it during the course of a
workday. I also conclude that Brown Brothers was negligent in
failing to use the proper fitting.
I find the Secretary 9 s amended proposed assessment of $20
appropriate for the same reasons as previously set forth for
Citation No. 3601852.

Mine Act Section
104(a)

Citation NUlll):)er
3601853

Date
02/12/92

30 C.P.R. Section
56.12013(b)

Citation 3601853 alleges that Brown Brothers used a power
cable that had an inadequate splice. The citation states: "The
power cable suppl[y]ing 220 volts to the AC Lincoln Welder had a
splice that was not insulated to a degree at least to the
original insulation and will not exclude moisture." Exhibit P-4.
The citation alleges a violation of section 56.12013(b) which
states, in part:
Permanent splices and repairs made
in power cables, including the ground
conductor where provided, shall be:

1734

* * *
(b) Insulated to a degree at least
equal to that of the original, and sealed
to exclude moisture;
Inspector Goldsberry testified that the. splice in the
welder's power cable "wasn't a very well made splice, just some
tape put around it; and the outer jacket hadn't been replaced
around the conductors." Tr. 34. He testified that the danger of
a "sloppy splice" was that someone could possibly step on it and
be electrocuted. Id. Goldsberry testified that MSHA and the
regulation require a splice that will exclude moisture and is
insulated. Tr. 38. In Goldsberry's opinion, the cited splice
would not exclude moisture because the tape around the individual
conductors was not tightly wrapped and the cable's three phase
wires were not wrapped as a unit to simulate the cable's missing
outer jacket.
Brown testified that Brown Brothers' personnel wear rubber
boots. Tr. 47. Goldsberry testified that wearing rubber boots
would reduce the risk of being electrocuted. Tr. 39-40.
Goldsberry guessed that the welder would be used approximately
once a day, and he noted that there was a house over the welder,
but that anyone going inside the house would be subject to
stepping on the splice. Tr. 41-42.
Carl Brown testified that Brown Brothers had done its own
work for ninety years, and that the company could not hire
electricians, except for special assignments. Tr. 47-48.
Goldsberry determined that injury was unlikely because of
limited access to the equipment and the splice. Alsov the area
was kept dry. Tr. 34-35. Goldsberry did not find the violation
was S&S 9 and he rated the degree of Brown Brothers 9 negligence as
moderate. The condition was abated by remaking the splice.
Tr. 35.
As with the previous violationsu there is no dispute about
the existence of the alleged conditions, and I find Brown
Brothers violated the standard as charged. I further find that
the inadequate splice created a potential safety hazard but that
the violation was not serious. Access to the welder and splice
was restricted, the welder and the splice were protected from the
weatheru and Brown Brothers 1 personnel wore rubber boots, all
which decreased the risk of injury. I also conclude that Brown
Brothers was negligent in allowing the violation to exist.
I find the Secretary's amended proposed assessment of $20
appropriate for the same reasons as previously set forth for
Citation Nos. 3601852 and 3601854.

35

ORDER

Brown Brothers IS ORDERED to pay civil penalties of twenty
dollars ($20) each, totaling the sum of sixty dollars ($60) for
the violations cited in sections 56.12001, 56.12013(b), and
56.12008 respectively. Payment of the assessed amounts is to be
made to MSHA within thirty (30) days of the date of this
decision, and upon receipt of payment, this matter is DISMISSED.

_j)tV/C/££:~~
David F. Barbour
Administrative Law Judge
(703)756-5232

Distribution:
Michael K. Hagan, Esq., Office of the Solicitor, u.s. Department
of Labor, Rm 339, 1371 Peachtree street, N.E., Atlanta, GA 30367
(Certified Mail)
Mr. Carl Brown, Brown Brothers sand Company, P.O. Box 22,
Howard, GA 31039 (Certified Mail)

1736

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOTJLEVARD #280
DENVER, C0.80204-3582
(303) 844-5267/FAX (303) 844-5268

AUG 2 31993
DONALD R. HOLDER,
Complainant,

DISCRIMINATION PROCEEDING

v.

Docket No. WEST 93-361-DM
WE MD 93-06

NEVADA GOLD MINING, INC.,
Respondent

Sleeper Mine

ORDER OF DISMISSAL

Before:

Judge Morris

The parties reached an amicable settlement in the above case
and Complainant requested that his complaint be dismissed.
For good cause shown, the motion is GRANTED and the case is
DISMISSED.

Distribution~

Mr. Donald R. Holder, Route 2, Box 352D, Pottsboro; TX 75076
(Certified Mail)
Henry Chajet, Esq., James G. Zissler, Esq., JACKSON & KELLY, 2401
Pennsylvania Avenue, N.W., Washington, DC 20037
(Certified Mail)
ek

1737

FEDERAL KINE SAFETY AND HEALTH RBVIBW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

AUG 2 4 1993
CYPRUS PLATEAU MINING
CORPORATION,
Contestant

v.

.
.
.
0

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

CONTEST PROCEEDINGS

:

:

Docket No. WEST 92-370-R
citation No. 3850267; 3/10/92
Docket No. WEST 92-371-R
Order No. 3588140; 3/12/92
Star Point 'No. 2
Mine I.D. 42-00177

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

v.
CYPRUS PLATEAU MINING
CORPORATION 0
Respondent

.
...
.
..:
:

CIVIL PENALTY PROCEEDING
Docket No. WEST 92-485
A.C. No. 42-00171-03633
Star Point No. 2

0
0

DECISION
1'\ppearances~

R. Henry Mooreu Esq. 9 Pittsburghu Pennsylvania 0
for Contestant/Respondent 0
Margaret A. Milleru Esq. 0 Office of the Solicitor
u.s. Department of Laboru Denver 0 Colorado 0
for Respondent/Petitionero

Before~

Judge Morris

These consolidated cases are contest proceedings and a civil
penalty proceeding arising under the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. S 2801, et seg. (the "Act").
After notice of the parties, a hearing commenced in Salt Lake
City, Utah, on April 13, 1993.

1738

The parties filed post-trial briefs.
WEST 92-371-R

Ventilation Tubing
In this case Cyprus Plateau Mining Corporation ("Cyprus") contests MSHA Order No. 3588140. The order was issued under Section
104(d) (1) of the Act to the Star Point No. 2 Mine on March 12, 1992.
The order, under the heading captioned "Condition or Practice"
alleges the following:
As a result of a 103(g)(l) complaint it was determined
that in the 3rd Right Working Section (two entry system)
a mine opening had been holed into a permanently supported
entry. The Section Foreman told the crew to hang the ventilation tubing. One member of the crew asked him if he
wanted a row of roof bolter· installed first, and another
member of the crew asked if he wanted jacks set. The
foreman said it was quitting time and that they were going
to hang the tube and go home. The unsupported area in the
breakthrough was approximately 15 to 20 feet long. The
approved Roof Control Plan states when a mine opening
holes into a permanently supported entry, no work shall be
done in or inby such intersection until the new opening is
either permanent supported or timbered off with at least 1
row of timbers or jacks.

The order further alleges Cyprus violated 30 C.F.R. Section
75o220(a) (1) which provides:

(a) (l) Each mine operator shall develop and follow a roof
control plan, approved by the District Manager, that is
suitable to the prevailing geological conditions, and the
mining system to be used at the mine. Additional measures
~hall be taken to protect persons if unusual hazards are
encountered"

:ISSUES

issues are whether MSHAVs order described with particularity the nature of the violation as required by Section 104(a) of
the Act. Further issues are whether cyprus violated the regulations. If such violations occurred, were they S&S, unwarrantable,
and what penalties, if any, should be assessed.
Section 104(a) of the Act provides as follows:

1739

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

STIPULATION
At the commencement of the.hearing the parties stipulated as
follows:
1. Cyprus Plateau Mining Corporation is engaged in mining and
selling of bituminous coal in the United States, and its mining
operations affect interstate commerce.
2e
Cyprus Plateau Mining Corporation is the owner and operator
of Star Point No. 2 Mine, MSHA I.D. No. 42-00171.

3. Cyprus Plateau Mining Corporation is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§§ 801 et seq. ("the Act")"

4"

The Administrative ~aw Judge has jurisdiction in this

matter"
5o
The subject citation and order were properly served by duly
authorized representatives of the Secretary upon an agent of respondent and may be admitted into evidence for the purpose of establishing their issuanceq and not for the truthfulness or relevancy of
any statements asserted thereino

6
The exhibits to be offered by Respondent and the Secretary
are stipulated to be authentic but no stipulation is made as to
their relevance or the truth of the matters asserted thereine
7o
The proposed penalties will not affect Respondent's ability
to continue business.

8. The operator demonstrated good faith in abating the
violations.

1740

9. Cyprus Plateau Mining Corporation is a large mine operator
with 1,574,629 tons of production in 1991.
10. The certified copy of the MSHA Assessed Violations History
accurately reflects the history of this mine for the two years prior
to the date of the citation and order.
BVl:DENCE
Wl:LLl:AM M. TAYLOR has been a coal mine inspector since 1982.
He is experienced in underground mining.

On March 12, 1992, with MSHA inspector Dale Smith he visited
the Cyprus Mine in Carbon County, Utah.
The visit was undertaken because he had received a complaint
filed under Section 103(g) of the Act. The complaint did not involve imminent dangere Mr. Taylor removed Complainant's name from
the 103(g} form before giving it to the company.
It was alleged the violation mentioned in the 103(g) had occurred in September 1991.
Mr. Taylor and Mr. smith separately interviewed the five men
who were on the crew. Those interviewed were Eric Chiaretta, Mark
Stevens, Seldon Barker, Sheldon Anderson, and Robert Powell (section
foreman).
Exhibit M-2 is a diagram Mr. Taylor made after his interview
with the miners.
The "Xs" shown on M-2 are the permanent roof supports and the area without roof bolts has been colored in yellow.
About 15 to 22 feet of the entire area was unbolted. on the day of
the alleged violation the Powell crew had mined through the crosscut
into the Noo 2 entry.
Mr. Taylor identified on M-2 with an orange
pen the area where the miners were hanging tubing. In Mr. Taylor's
opinion five miners had undoubtedly worked in the unsupported area
after they had broken through the intersection. In addition, it
would not be possible to hang tubing without being under an unsupported roofo
The companyvs Roof Control Plan as it relates to unsupported
openings at intersections states as follows:
@.

UHSUPPOR!r!:D OPENINGS AT l:HDRSECTIOHS s

When a mine opening holes into a permanently supported
entry, room or crosscut, or when new openings are created
by starting a side cut, no work shall be done in or inby
such intersection until the new opening is either permanently supported, timbered off with at least one (1) row
of temporary support (posts or jacks) or at least one (1)

1741

row of permanent supports are installed across the opening
in the bolting pattern.

In Mr. Taylor's opinion, installation of the tubing itself can
cause miners to be under unsupported roof. Further, exposure to unsupported roof and resulting roof falls cause more fatalities than
any other hazard in coal mines.
The inspector further testified as to accidents involving
unsupported roofs that occurred in the late 1970's in this mine.
Mr. Taylor believes that the situation was due to the operator's unwarrantable failure because in his opinion it meets the
criteria for such a violation.
Further, it was an S&S violation.
In Mr. Taylor's opinion, the failure to use bolts or jacks
supports the unwarrantable failure allegation. Mr. Taylor did not
know who the individual was who stated to the 'foreman that bolts or
jacks should have been installed. However, he believed it was
stated by one of the witnesses he interviewed.
According to Mr.
Taylor's notes, the unsupported area was 15 to 20 feet.
Mr. Taylor agrees the time of the alleged violation of the
Roof Control Plan and the filing of the lOJ(g) complaint was six
months (September to March).
Section 75.222(e) contains criteria for a Roof Control Plan
for unsupported openings at intersections. The plan itself refers
only to the term "work." "Travel" is not included in the plan.
Mr. Taylor further agrees that the place of the violationu
as shown from his notesu was either the 2nd Right or the 3rd Right
section"

SELDON L. BARKER is employed at the Cyprus Mine as a shuttle
car operator. He was involved in hanging the ventilation tubing on
the day of this incident involving the Robert Powell crew. They
were working in the RIGHT section and it could have been 2d Right or
Right. There is about a 500-foot difference. Howeveru there is
no difference in the roof.
This incident occurred toward the end of the graveyard, a
production shift.
Mr. Barker identified the location of the roof bolter in No. 2
entry (marked in blue on Exhibit M-2).

The ventilation tubing itself is two feet in diameter and
about 10 feet long and it takes two tubes to cross a 20-foot-wide
intersection.

1742

The area marked in yellow on Exhibit M-2 is the last cut
between No. 1 and No. 2 entry.
The ventilation tubes insert one into the other, male to
female. A miner holds the first tube and it takes two or three
people to hang it. They were hanging it as fast as they could.
Mr. Barker did not recall any conversation regarding unsupported
roof nor did he hear anyone say anything about installing roof
support.
Mr. Barker was not sure if he was under any unsupported roof
when he was hanging the ventilation tubing but the nature of the job
could possibly put him under such unsupported roof.
'

Mr. Barker knows you don't go out past unsupported roof and

expose yourself to the hazard of having it fall on you.
The weakest part of the roof is the first few feet of the
breakthrough and that portion falls regularly.
It is the supervisor's decision to decide if jacks or roof
bolts should be set.
Mr. Barker was not sure if he was under unsupported roof and
he didn't tell the foreman to install jacks or roof bolts. It took
about five minutes to get the tubing up.

ERIC CHIARETTA was a Cyprus roof bolter in September 1991 and
he was familiar with the incident involving Robert Powell as the
supervisor.
They were working in the 2nd Right or 3rd Right and they were
at the end of the graveyard shifte which is an eight-hour shift.
Mr. Chiaretta was a roof bolter on the Powell crew. He identified the location of the roof bolting machine as being 15 feet
outby the intersection.
Mr. Chiaretta was present when they discussed hanging the
tubing and he agreed with the statements of witnesses Taylor and
Barker.

In September 1991 at the time of the incident, the crew hung
three to four pieces of ventilation tubing and there were five to
six of them involved.
Powell also assisted.
Gary Groom, a member of the group, asked Powell if he wanted
to put in a row of bolts. Groom is no longer in the State of Utah,
and he did not testify at the hearing.
Mr. Chiaretta did not remember being under unsupported roof
but such a possibility exists. You could go into such an area.

1743

If unsupported roof falls it can cause a fatality. The roof
in this mine was fair to poor. The 2nd Right andjor 3rd Right area
consists of a lot of mud and siltstone and it has fair top.
Prior to September 1991, normally the miners would support any
unsupported area and then hang ventilation tubing. There were jacks
available on the roof bolting machine.
Ventilation tubing can obscure your view of any roof hazard as
it is being installed. The roof bolts were four six-inch plates.
SHELDON P. ANDERSON has been a Cyprus mechanic for 13 years
and is familiar with the incident that occurred in September 1991 at
the time they holed through the No.2 entry. ,He had discussed this
incident with Inspector Taylor. About 500 feet separates 2d Right
and 3rd Right.

After they broke through into the No. 2 entry, the area was not
supported. The unsupported area ofthe roof was 12 to 15 feet and
the distance across the intersection was 19 to 20 feet.
The crew hung at least three pieces of tubing. While hanging
the tubing, Mr. Anderson might have had his arm out under the unsupported roof. He recognizes that it is an unsafe practice to work
under unsupported roof.
Mr. Anderson stated that the day after this incident occurred
it was discussed and decided that in the future they would install
jacks or roof bolts before installing ventilation. Mr. Powell was
present and he said they were in a hurry. Mr. Anderson knew it
wasn't right. It took about five to six minutes to hang the tubing.
Mro Anderson was nervous about testifying. Mr. Powell didn't force
him to do anything that was unsafe. There was a possibility that he
was under unsupported roof. The conversation they had about this
matter was at a regular safety meeting.
It may have been the following week. Mr. Powell said, "We were all responsible"; but he
didn't think it was unsafe.
LEE He SMITHu an MSHA field office supervisor is an individual
experienced in underground mining and roof control plans.
Mr. Smith identified Exhibit M-5 which he helped draft. M-5
are the MSHA regulations relating to 30 C.F.R. Part 75 entitled
09
Safety Standards for Roof I Face and Rib Support." It is the final
rule effective January 27, 1983.
It is MSHA's intention, according to Mr. Smith, to prevent
travel under all roof and the agency feels very strongly about any
miners working or traveling under such unsupported roof. M-5
·
requires permanent or temporary supports on five-foot centers before
"any other work or travel in the intersection." On the other hand,
the operator's Roof control Plan only contains the term "work".

1744

According to Mr. Smith, the term "work" means any activity and the
purpose of the Roof Control Plan is to prevent all exposures under
unsupported roof.
CYPRUS EVIDENCE
ROBERT POWELL, section foreman is experienced in underground
mining.
In September 1991 Mr. Powell was supervisor of the 2nd Right
section.
In that section the conditions of the roof were good.
They were taking 40-foot cuts.
Mr. Powell identified the production exhibit for September 13
in the 2d Right section.
(Ex. R-1). He did not know what date the
ventilation tubing incident occurred.
The roof in the 3rd Right section is the same as the 2d Right
section.
But without knowing the exact location, Mr. Powell cannot
search out a production report.
Ventilation tubing is taken down to keep the continuous miner
from chewing it up; then it is restored to ventilate the face.
Mr. Powell vaguely remembers the incident being discussed.
There were no miners under the unsupported roof and it took two to
three minutes to put the tubing back up. The crew was not at risk.
The term "work" as is used in the Roof Control Plans means mining with a continuous miner or roof bolting. Preshift exams are
~lso included as well as rock dusting 0 testing the roofu gas checksu
etco No one from cyprus said that definition was wrong.
Mr. Powell agrees the roof bolter was sitting outside the
entry. If Mr. Groom had come to him in September 1991 and said i t
was unsafe to put up ventilation tubing without putting up jacks 0
they would have set jackso He does not recall any such conversation
with Messrso Groom and/or Chiarettao Setting jacks involves a
greater risk than hanging ventilation tubing.
~0 Powell does not dispute that in September 1991 the incident
as described by Chiaretta occurred. There was only one occasion in
September when the holing through occurred as described by the witnesses. Mro Powell indicated the crew was never under unsupported
roof; it is not a safe mining practice to be under such roof.

ROBERT A. LINDSEY is a Cyprus scoop operator who he has four
years underground experience. He is familiar with this incident and
with the conditions at the time. He recalls that three ventilation
tubing pieces were hung and they had been lying against the ribs to

1745

keep the continuous miner from tearing them up.
down the middle of the crosscut.

The only tubing was

Mr. Lindsey did not go out under any unsupported roof nor did
he see anyone else do so; there was no adverse roof in the area.
No one suggested that roof bolts or jacks be installed in the unsupported crosscut.
Mr. Lindsey remembers that incident happened at the end of the
shift. He believed it was highly unlikely he would have stepped
out; however, an arm or leg or part of his body could have been
under the unsupported roof. This incident occurred in 2d Right.
It is now the policy of Cyprus not to go beyond the last open
crosscut.
CARL J. DOWNARD is a miner helper. He did not remember hanging
the ventilation tubing. Further, he didn't hear anyone complaining
about installing bolts and jacks.
The crew was in 2d Right with Mr. Powell. At the later safety
meeting, Mr. Groom expressed concern that the activities were unsafe
but he didn't know if Groom or Chiaretta had said anything to
Mro Powell 6 who was also at the safety meeting. Mr. Powell said it
wouldn't happen again in any event.
RiCHARD TUCKER is the senior safety representative for Cyprus.
Mr. Tucker has hung ventilation tubing; it is not difficult to hang.

The adjustments are made by the miner simply swaying with the
tubing.
Mro Tucker believed this violation was not S&S nor was it
unwarrantable
a

After Cyprus received the order in this case, it attempted to
change its Roof Control Plan to establish a different definition of
the term "work""
Mro Tucker admitted that there was no reason to believe that
this incident had not happenedo He initially learned about it when
MSHAus order was issuedo
The Roof Control Plan does not permit
miners to go inby under unsupported roof at intersectionso

The primary responsibility for safety rests with the superinendent. Mro Powell was not disciplined as a result of the incident
in question.
Mr. Tucker further agreed that no part of the body of a miner,
such as an arm or leg can go under unsupported roof under any circumstances. Roof bolts support a six-inch by six-inch area.

1746

Cyprus agrees that hanging tubing inby an unsupported intersection can be safe or unsafe depending on the roof conditions.
The witness introduced a citation issued by an Inspector Ganser
which was neither S&S nor unwarrantable.
(Ex. R-2.) Mr. Tucker was
not able to make an estimate as to whether it was safe for miners to
do what they did in this case because he didn't know the conditions
of the roof. He determined that there was a violation of the Roof
control Plan from what he has been told and this is why he asked
Cyprus to change its definition of "work."
He believed there is reason for disagreement concerning the
definition of "work." He did not believe hanging tubing constituted
work and it's okay to go under unsupported roof to do things that
are not considered to be "work".
According to the Roof Control
Plan, when you go into an area it depends on whether the roof is
safe. However, no miner should ever be exposed to unsupported roof.
Mr. Tucker, who has worked with other MSHA districts, indicated
that miners will go inby unsupported roof for preshift, for ventilation and for rock dusting.
WILLIAM TAYLOR was recalled to testify concerning the "Ganser"
citation. When this citation was issued, the jacks were present
although they were six feet two inches apart (not five feet as
required); also, it was not shown that anyone was working in the
area.
He indicated the difference between the "Ganser" citation and
this citation was that the Powell crew was in a hurry and was tired.
Mro Taylor believed the MSHA office had probably talked to him about
~he correct citationu particularlyu in view of the fact that there
00
were
Ganser 9" citations
o

EVALUATION OF TBE EVIDENCE
As a threshold matteru Cyprus argues the Secretary failed to
comply with the particularity requirements of Section 104(a} of the
Acto In this case it is true that the Secretary failed to establish
the exact date and place of the alleged violation. The violation
may have occurred September 13u 1991u or on some other date in Septembero In additionu it may have occurred on 2d Right or 3rd Right.
The Commission ruled that the primary reasons for the specificity requirements are "for the purpose of enabling the operator to
be properly advised so that corrections can be made to insure safety
and to allow adequate preparations for any potential hearing on the
matter. Jim Walters Resources, Inc., 1 FMSHRC 1827, 1829 (November
1979}. See also Cyprus Tonopah Mining Corporation, 15 FMSHRC 367
(March 1993) wherein the Commission repeated its view that the re-

1747

quirement serves the purpose of allowing the operator to discern
what conditions require abatement and to adequately prepare for a
hearing.
The record shows the witnesses who testified for the Secretary
and Cyprus knew what event was being discussed and what actions were
taken. some witnesses testified the incident took place in 2d Right
and some testified it was 3rd Right. The sections are in the same
area of the mine, about 500 feet apart. (Tr. 97, 105, 152). Everyone agreed it occurred in september 1991. (Tr. 105, 152).
Section foreman Powell acknowledged there was only one "holethrough incident." While he only "vaguely" recalled it, he testified at length concerning the facts.
In this case abatement of the violative condition was not
involved.
Cyprus failed to show any .. prejudice and the spec if ici ty section
does not warrant a dismissal of this case.
In this case there is no direct evidence that any miners were
under unsupported roof when installing the ventilation tubing.
However, it is clear that the work (hanging the tubing) was being
done "inby" 1 the intersection without the new opening being
supported in any manner. such work constitutes a violation of the
roof control plan.
The credible evidence establishes such "inby" work and on the
record I enter the following:
~IKDINGS

OP PACT

1. Sheldon Lo Barker, a shuttle car operator, was involved in
hanging the vent tube. (Tr. 103 9 104).
~"
Mro Barker agreed with Mr. Taylor as to the location of the
roof bolting machine. (Tr. 106).

3o
The crew was hanging at least two vent tubes across the
20-foot intersection. {Tr. 108).

4. The area marked in yellow on M-2 is the last cut between
No. 1 entry and No. 2 entry. (Tr. 108, 109).

1

"Inby" has been defined as "toward the working face, or interior

of the mine."

A Dictionary of Mining, Mineral and Related Terms, at 572.

1748

5. They hung the tubing at the end of the shift and they were
in a hurry to get out of there.
(Tr. 110).
6. Mr. Barker "can't really be sure" if he was out under
unsupported roof when hanging the tubing. (Tr. 112-113).
7.
There is a "good possibility" that from the nature of the
hanging the vent he might be out under the unsupported roof.
(Tr.
113).
8. Eric Chiaretta stated five or six miners were hanging three
or four lines of tubing. Mr. Charietta couldn't recall if he "was
actually out in the intersection or not," but "the possibility was
there to step out." (Tr 136). While hanginq the tubing you are not
standing still.
(Tr. 136). There was 15 to 20 feet of unsupported
roof.
(Tr. 137).
9. Sheldon Anderson hung the tubing. TQ hang the tubing "you
may have an arm sticking out" or you "may move with the tube." (Tr.
151, 154).
Section foreman Powell asserts it was not "work" within the
meaning of the roof control plan to hang the tubing. In addition,
they were never under unsupported roof. [Mr. Powell's views of the
roof control plan are erroneous. Hanging tubing is "work" inby any
unsupported intersection.]
Mr. Tucker seeks to persuade the Judge that the hanging of vent
tubing is relatively "very easy." (Tr 303). I am not persuaded
since it is overhead work, an effort is being made to insert one
sleeve into another,.vision is limited, and miners must move and
sway with the tubingq Those factors cause me to conclude that there
a reasonable likelihood these miners would be under the unsupported roofo
may well be that witnesses Powell and Lindsay did
not go under unsupported roof when hanging the tubeso Howeveru the
likelihood still exists and therein lies the violation.
SIGNIPICART AND SUBSTANTIAL
A violation is properly designated as being S&S "if, based on
the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission
explained:

In order to establish that a violation of a mandatory
standard is significant and substantial under National
Gypsum the Secretary must prove: (1) the underlying

1749

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 a reasonably serious nature.

See also Austin Power Co. v. Secretary. 861 F.2d 99, 103-04 (5th
Cir. 1988), affq. 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria). The question of whether any specific violation is
S&S must be based on the particular facts surrounding the violation.
Texasgulf Inc., 10 FMSHRC 498, 500-501 (April 1988); Youahioqheny
and Ohio coal Co., 9 FMSHRC 2007, 2011-2012 (December 1987).
The evidence establishes factors (1), (2)' and (4) of the
Mathies formulation. In connection with paragraph (3) of Mathies,
Cyprus asserts the S&S allegations fail because the evidence did not
consider the specific roof conditions in the ~ntry and other factors
related to the likelihood of a roof fall.
(Tr. 62-63, 92-93, 95).
I agree. Chiaretta described 'the roof as "fair to poor." However,
the inspector did not discuss the roof conditions with the miners.
Although additional roof support was used, the inspectors were not
present at the time of the hole-through. As a result there was no
evidence of paragraph (3) of Mathies.
A credibility issue arises concerning the two citations issued
by Inspector "Ganser." These two citations were not S&S. However,
I give the Ganser citations zero weight. Basically, the facts in
the Ganser citations were not the same as involved here.
The S&S allegations should be stricken.
UNWAIUU\NTABLE FAILURE

The special finding of unwarrantable failure, as set forth in
section 104(d) of the Mine Act, 30 u.s.c. S 814(d)u may be made by
authorized Secretarial representatives in issuing citations and
withdrawal orders pursuant to Section 104o In Emery Mining Corp. 8
9 FMSHRC 1997 0 2004 (December 1987)u and Youghiogheny and Ohio Coal
Company, 9 FMSHRC 2007u 2010 (December 1987), the Commission defined
unwarrantable failure as "aggravated conduct constituting more than
ordinary negligence by a mine operator in relation to a violation of
the Act." Emery examined the meaning of unwarrantable failure and
referred to it in such terms as "indifference," "willful intent,"
"serious lack of reasonable care," and "knowing violation." 9
FMSHRC at 2003.
In this case, Mr. Powell interpreted the roof control plan to
mean that certain activities including pre-shift examinations establishing ventilation or preparing the mine by rockdusting, scaling

1750

bad rib, sound testing the roof, or gas checks were permitted inby
an unsupported opening. (Tr. 246, 262).
Mr. Powell's interpretation is somewhat supported by the
criteria in 30 c.F.R. S 75.222(e). While the criteria refer to
"work or travel," the Cyprus roof control plan refers only to
"work." (Tr. 90). The absence of "travel" on Cyprus's work plan
suggests that some activity could be permitted inby an unsupported
roof.

As previously stated, Mr. Powell's view is erroneous. In view
of the hazards involved by roof falls I agree with Mr. Smith's
opinion that all exposures to unsupported roof are prohibited. (Ex.
M-5}.
However, a good faith belief (although mistaken) that no violation existed excludes the imposition of an unwarrantable failure
finding, Florence Mining co., 11 FMSHRC 747, 753 (May 1989};
Southern Ohio Coal Co., 11 FMSHRC 138, 143 {February 1988); Utah
Power and Light Co., 12 FMSHRC 965, 972 (May 1990).
For these reasons the unwarrantable failure allegations are
stricken.
A credibility issue arose as to whether some crew members may
have suggested to Mr. Powell, the crew foreman, that roof bolts or
jacks be installed before rehanging the tubing. While these facts
were alleged in Order No. 3588140, Inspector Taylor could not recall
if anyone made such statements during his interviews. In addition,
Mr. Taylor's notes did not reflect such statements. Messrs. Barker,
Anderson, Kindsey, and Downard were not aware of any such conversationo
(Tro 112 9 124, 155u 280-182u 295)o In sum, I credit
Mro Powell 0 s testimony that he did not recall anyone in general or
specifically Mro Chiaretta or Mro Groomu questioning him about setting jacks or bolting the area before installing the tubing.
(Tr.
244, 249u 252, 261)o Mr. Powell has been an underground miner for
20 years.
If anyone had requested him to install temporary or
permanent support, he would have done so. (Tro 251 0 261-262).
CIVIL PENALTIES

Section 110(i) of the Act mandates consideration of six
criteria in assessing appropriate civil penalties.
Cyprus is a large operator with 1,574,629 tons of production
in 1991.

The penalty set forth in this order is appropriate and will
not affect the operator's ability to continue in business.

1751

The prior history is favorable to cyprus as the company had
only ~3 violations assessed for the two-year period ending March 9,
1992.
The operator was negligent in that its section foreman should
have known of the requirements of the roof control plan.
Since miners could have been exposed to the unsupported roof,
the gravity should be considered as high.
In view of the circumstances, abatement was not involved on
this record.
For the above reasons, Order No. 358814~ is MODIFIED to a
104(a) citation, which citation is AFFIRMED.
WEST 92-370-R
Shutt~e

car Brakes

In this case, Cyprus contests Citation No. 3850267 issued
under the provisions contained in Section ~04(d)(~) of the Act.
The citation under the heading captioned
Practice" alleges the following:

"Condition or

As a result of a ~03(g)(1) complaint it was
determined that the #8 off standard Joy shuttle
car was operated on the 3rd South Active Working
Section in an unsafe condition. The foot brakes
on the shuttle car were inoperativeQ An agent
the operator knew the condition existed and
permitted the shuttle car to be operated in an
unsafe condition for the purpose of producing
coal.
The citation further alleged that the above condition or pracconstituted a violation of 30 C.F.R. Section 75.1725(a)~ a
mandatory safety standardo It is further alleged that the violation
was of such ~ nature that it significantly and substantially contributed to the cause and effect of a mine safety and health hazard.
The regulation allegedly violated provides as follows:
~~ce

15. Jl. 725

Machinery and •quipaent; operation
and aaintenance.

(a) Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from service immediately.

1752

The principal actors in the shuttle car/brake incident were
Seldon Barker (car operator), Paul Downard (spell boss), and Bill
Burton (shift foreman).
EVIDENCE
WILLIAM TAYLOR received a 103(g) complaint. It alleged a shuttle car had been operated without brakes. Mr. Taylor traveled to
the mine on March 10 and gave the company a copy of the complaint.
It indicated that on February 12, 1992, thjc:. incident occurred in
Jrd south.
Mr. Taylor met with company representatives Hansen, Gunderson,
and Salerno and they helped him interview company workers in the
foreman's office.
Mr. Taylor interviewed Seldon Barker, Bill Burton and Paul
Downard.
Barker told Mr. Taylor that the brakes on the shuttle car
kept getting worse and within two hours before the end of the shift
the operator could push the brakes all the way down and they did not
respond.
The shuttle car operates from the face to the feeder breaker.
In this distance it travels one crosscut and goes around pillars;
the maximum distance travelled would be 400- to 700 feet. There
were two shuttle cars in use in this section that traveled to the
feeder breaker. [A shuttle car normally carries 8 to 10 tons.]
Mro Barker told Inspector Taylor he almost ran over a man coming out of a crosscuto Howeveru he was able to stopo Mro Barker
complained that there were 61 no brakes" but he agreed to run the
equipment for the last two hours if Mro Downard informed those on
the shift that the brakes were not operating. Mr. Downard agreed to
this arrangement. Mr. Barker also told Supervisor Burton that he
had "brake problemso 00
Mro Taylor believed this was a violation of 30 C.FoRo
15ol725(a) because the service brakes were not operational. The
regulation requires an operator to remove equipment from service
that is in an unsafe conditiona
§

The operator of the shuttle car normally sits in the direction
travel and to tram the equipment he would move it in a reverse
direction.
There are panic bars or emergency brakes provided on the shuttle car. Mr. Barker indicated the emergency brakes worked. In a
normal mining cycle the shuttle car operator used the service brakes
to stop the shuttle car.

1753

on February 12 the area where the shuttle car was operating was
sloped; driving the shuttle car around the corner would present a
hazard. In Mr. Taylor's opinion, if this equipment continued to
operate, it was reasonably likely that an accident would occur.
Supervisors Downard or Burton could have taken this equipment out of
service.
Mr. Taylor issued this citation as an unwarrantable failure
since he felt it was an aggravated situation for the foreman to
allow this equipment to operate. The same reason applied to the
second level supervisor.

There are only three ways to stop a shu~tle car: using a foot
pedal, emergency brake, or the service brakes. The ability to use
an emergency brake did not affect Mr. Taylor's S&S evaluation.
Mro Barker told Mr. Downard he would continue to operate the
shuttle car for the two hours left in the eight-hour shift.
Mr. Downard was filling in as the crew boss but normally he is a
member of the crew.

SELDON BARKER has been a shuttle car operator for 19 years.
on February 12, 1992, he was working in the Jrd South section
developing a main panel for a longwall.
There were seven members
in the crew plus a supervisor. Mr. Downard was acting supervisor
and Billy Burton was his supervisor.
Mr. Barker was operating an off-standard shuttle car. Offstandard means he would be driving on the opposite side that is
normal for driving an automobile.
Mro Barker was hauling coal from the continuous miner to dump
i:c behind the feeder breaker a distance of about 600- to 700 feet.
The shuttle car weighs 33,000 pounds. There were holes in the road.
It takes about a minute to load the shuttle car and a minute to go
from the continuous miner to the feeder breaker, which is uphill.
"&men t.he shuttle car is empty g you drive downhill
It takes about a
~inute
dump at the feeder breaker and a round trip takes about
five minuteso When operating the shuttle car to the feeder breaker
3tDu
not travel in a straight line but you drive around corners.
Q

o

On February 12Q the brakes on the shuttle car became inoperable as there were no brakes at all with two hours remaining in the
shifto Mro Burton advised Mr. Downard that he had no foot brakese
Mr. Downard suggested bleeding the brakes. This took from 15
to 20 minutes to do, but it did not restore braking power. They
discussed the possibility that the master cylinder was not
functioning.

1754

In an eight-hour shift, they move about 100 shuttle cars. If
they shut down this equipment, their goal could not be achieved.
Messrs. Downard and Barker agreed to keep the shuttle car running.
Mr* Barker couldn't tell Mr. Downard to take the shuttle car out of
production. They made their 100 shuttle car quota for that day.
When operating the shuttle car without brakes and when unloading at the feeder breaker, the operator is going uphill. In this
position, the shuttle car is held in position by taking your foot
off of the pedal and changing seats. When Mr. Barker saw Mr. Anderson behind him, he back-trammed the shuttle car. Back-tramming
or feather-tramming is when you put a toe under the tram pedal located on the reverse side. Mr. Barker was not in the proper seat to
operate the tram pedal.
on February 12, Supervisor Burton was on the section for an
hour and Mr. Barker believed Mr. Burton talked to Mr. Downard who
said there was a problem with the brakes. It Mas Mr. Barker who
first suggested that he could operate the shuttle car in a reasonably safe manner.
Mr. Barker did not use the emergency brakes except when he
stopped on a hill. He has more shuttle car experience than anyone
else at the mine. He did not refuse to operate the shuttle car with
the bad brakes. He thought he had a choice in this matter, (i.e.,
to refuse to operate the shuttle car), but he didn't know how far he
could go with it.
SHELDON ANDERSON was the mechanic on February 12 in the 3rd
South section. The 3rd South floor bottom has a grade going downhillo The floor was slick and contained loose coal. In addition~
surface was uneven.

On February 12 9 Mr. Barker was on the feeder dumping a load of
coal and Mr. Anderson was going through the crosscut behind him.
Mr. Anderson flashed his light and as he stepped around the shuttle
came back on him. If he hadn't jumped he would have been
and either
lled or hurt.
Mr. Anderson yelled at Mr. Barker. Mr. Barker did not say
anything. Mr. Anderson did not know the brakes on the shuttle car
were inoperative. The next day" Mr. Downard stated he had made a
mistake and he should have told everyone the shuttle car had no
brakes. In Mro Anderson's opinionu it was not a safe practice to
use emergency brakes.
GEORGE w. MANSON has been a cyprus mechanic for 12 years and
is experienced in mining~ On February 12, he was involved with the
brakes on the No. 8 shuttle car. Generally he serviced and maintained equipment in the section and on February 12 he repaired the
brakes on shuttle car No. 8 in accordance ~ith a maintenance
request.

1755

The brakes were slow in stopping the equipment so the disks
were cleaned and the brakes bled. Thereafter, the equipment was
tested for stopping ability. They found that the reservoir brake
fluid might have been three-eighths of an inch to one-half inch
below normal.
[The shuttle car was equipped with a dry braking
system.]
On the second day the maintenance department received the same
complaint and the brakes were bled. They were also tested and Mr.
Manson felt they were operable.
A third time they were instructed to recheck the equipment
because something was causing the brakes not to function. In
removing the master cylinder they discovered ~hat there was no fluid
coming out of the line. They then went to the upper reservoir and
removed the line. At this point they found a small rock which
stopped the flow of the brake fluid into the master cylinder.
In Mro Manson's opinion, the problem that they found would not
make the equipment unsafe to operate. The brakes would still stop
the equipment but it would take longer to stop it.
ART c. GORE is an MSHA coal mine inspector and experienced in
mining. He identified Exhibit M-8 and discussed the technical aspects of the braking system. He further indicated that MSHA records
show 87 fatalities have occurred from bad brakes and 16 fatalities
have been the result of shuttle car accidents.
PAUL DOWNARD is a person experienced in underground mining. He
has been a member of the Robert Powell crew as an hourly employee
and he occasionally fills in as spell boss. On February 12, 1992q
he was spell boss on the afternoon 10-hour shift. Mr* Barker talked
him abou·t the brakes on the shuttle car and he further indicated
was having problems with the brakeso Mro Downard told him they
should find some brake fluid. Mr. Downard was experienced with Joy
shuttle cars and he felt he could handle the mechanics involved.
Mro Barker added the brake fluid and Mr~ Downard was outside looking
at the brake caliperso He did not touch the brakes. They found
there was some air
the system and vou could see air bubbles in
the leaking fluid. Mr. Downard also looked in the brake fluid reservoir but couldnPt see anythingo The brake pedal felt spongy~
There may have been some air but there was some braking power. The
frame was wet from where the fluid was leaking. Mr. Downard told
Mr. Barker that they would order a master cylinder. Mr. Barker said
there was no way to get it changed before quitting time. Mr. Barker
said he could run the shuttle car safelyo Mr. Barker has 15 years
experience running shuttle cars.
Mr. Downard has the authority to take the equipment out of
service if it is unsafe. If Mr. Barker had not made the suggestion
about safe running, Mr. Downard would have taken the equipment out
of service.

1756

Mr. Downard told some of the men on the crew that Mr. Barker
was having problems with the brakes but he did not tell all of them.
Mr. Downward was hoping to get the master cylinder installed within
15 to 20 minutes.
Mr. Downard observed Messrs. Burtori and Barker talking and
Mr. Burton said to shut it down if there was any problems.
Mr. Downward did not have any discussion with Mr. Burton concerning
the brakes.
During the rest of the shift, Mr. Downard saw Mr. Burton at the
shuttle car. He did not see Barker almost run over Mr. Anderson but
he felt that he had a fail-safe brake system and the emergency
brake; in addition, back-tramming was also available. Back tramming
or feathering a tram pedal will slow down the equipment.
Mr. Downard indicated his relationship with shuttle car operator Barker was not good. Mr. Barker does not .like to take orders
and he was previously suspended . one day when Mr. Downard was the
spell boss.
The company budgets 100 shuttle carloads per shift. Mr. Barker
did not say to him that he wanted to help him make his quota.
The following shift, Mr. Downard and the crew discussed the
Anderson incident. Mr. Downard was concerned that he had not made
it around to everyone to tell them about the brakes on the shuttle
car. Mr. Downard indicated to the crew that if it happened again,
he'd shut it down and fix it. Mr.· Downard should have done it differently and he doesn't feel he should have relied on Mr. Barker.
But as spell boss, Mr. Downard thinks he is entitled to rely on
statements by his equipment operator"
Mro Downard felt that Mro Barkerus desire was for safety and he
felt confident that Barker could safely operate the equipment.
Mr. Barker was confident in this regard but he wanted the crew to
know about it. He agreed that operating a shuttle car without
service brakes would be unsafe. Howeverff there are times when it
depends upon how bad the brakes areo Mro Downard assumed there were
some brakes because Barker could still operate the equipment.
Mro Barker said he had other brakes, however the condition was unsafe if there were no brakes and the equipment was being operated by
tramming and emergency brakes. [The purpose of the reverse tram is
not to stop the shuttle car.]
After Mr. Downard agreed to let Mr. Barker operate the shuttle
car he did not tell Anderson about the brakes. Mr. Downard's responsibility was greater than Mr. Barker's under the circumstances.
ROBERT A. LINDSEY has been employed by cyprus for 11 years and
has operated diesels, shuttle cars, and roof bolters.

1757

ice.

It is company policy to remove any unsafe equipment from servThat authority is set forth on the task training sheet.

Messrs. Barker and Downard did not have a good relationship.
It was, in fact, a "bad" relationship and there was animosity between the two men but Mr. Lindsey did not know why. It bas been
going on for a long time. Additional miners having a bad relationship are Mr. Barker, Ben Brady, and Benny Avhil.

Mr. Lindsey agrees he is not saying someone engineered accidents to make Mr. Downard look bad. He considers Mr. Downard to be
a good supervisor but other individuals do not agree. In Mr. Lindsey's opinion, Mr. Barker is fairly vocal about safety issues and he
wouldn't be shy in this respect with Mr. Downard.
JERRY DOLINSKI is the maintenance foreman for Cyprus. He bas
been employed by the company t.9r 15 years and is experienced in
maintenance and underground coal mining. In February 1992, he was
superintendent for George Manson and on February 13, 1992, they
worked on the No. 8 shuttle car. The complaint was that there were
no brakes. The pedal went to the floor.
Messrs. Dolinski and Manson bled the brakes but they would not
build up. This indicated to Mr. Dolinski that there was no brake
fluid in the master cylinder.
Exhibit R-13 shows that there was no reference to work on the
shuttle car on February 11 nor on February 12. On February 13 it
was indicated the line was plugged and the brake fluid could have
been going through and later plugged. on February 14 no work was
done on the brakeso Even if the master cylinder is one-half or
one-third full the brakes will still continue to operate.
Mr. Dolinski found no brakes at all on shuttle car 8. He
explained in detail the nature of the dry (as distinguished from
wet} brakes. He further explained the cause of the problem was a
small rock that blocked the flow of the brake fluid.

WILLIAM B. BURTON is a shift foreman with 21 years experience.
He has held various positions in the mine. On February 12, 1992, he
was a shift foreman and was making his rounds. He came to Mr. Barker and talked to him while be was in the shuttle car. Mr. Barker
stated the brakes were bad or screwed up but he was running it fine
and the crew had been notified. He said he bad no brakes.
Mr. Burton indicated that any operator can shut down equipment
if it is unsafe and be is expected to notify the foreman when be
does that. On February 12 Mr. Burton said the shuttle car should be
taken out of service. He also checked with Sheldon Anderson and
asked him if be had been almost run over by a shuttle car. He
replied, "No, it wasn't a big deal."

1758

On this particular day there were two or three shuttle cars on
3rd South.
If Barker went out of service they could still continue
to run coal. The shuttle car should be taken out of service if it
is unsafe to operate and Mr. Burton believed they were all partly
responsible.

Mr. Barker received a disciplinary for the matters between him
and Downard; this occurred a couple of weeks ago. This event was
because Mr. Barker was "harassing" Mr. Downard.
DISCUSSION, £VALUATION AND PORTHER PINDINGS
Credibility issues involve the condition'of the shuttle car
brakes and the operator's knowledge as to these unsafe conditions on
February 12, 1992. On these issues I essentially credit the testimony of Sheldon Barker. As the shuttle car OP,erator, he would be
the most knowledgeable person concerning the condition of the shuttle car. The credible evidence established the following:
FINDINGS OF FACT
1.

12' 1992.

Sheldon Barker was the shuttle car operator on February
(Tr. 432).

2.
On that day, the brakes slowly deteriorated until there
were about two hours left in the shift. At that point the foot
brakes would not stop the shuttle car.
(Tr. 442, 443).
3o
Mro Barker advised Supervisor Paul Downard that he had no
brakes o {Tr o 443) o Downard said 1 "We' 11 bleed them." After
bleeding them Mro Downard could not get any brakes.
(Tr. 443u 453)o
4.
problema

The two men believed it could be a master cylinder
(Tr. 444)o

5o
If Barker could operate the shuttle car 8 they could reach
their goal of 100 car production quota.
(Tre 445).
6.
Barker had never operated a shuttle car with complete loss
of service (foot) brakes.
(Tr. 447). He wasn't too sure he had the
option to shut down the shuttle car.
(Tr. 446).
1.
He held the shuttle car (while unloading it) by feathering
the tram pedal.
Feathering means you engage the pedal and then let
off.
(Tr. 447, 448).

8.
While he was dumping one load, Mr. Anderson walked in
front of the shuttle car but jumped out of the way.
(Tr. 448, 449).

1759

9.

On February 12, supervisor Barker was in the section.

Mr. Barker heard Mr. Downard tell Mr. Burton there was trouble with

the brakes.

(Tr. 450).

10. Mr. Barker suggested to Mr. Downard that he could operate
the shuttle car rather than wait for the master cylinder. (Tr.
456).

11. It was agreed by Barker that Downard would advise all
persons in the section that the buggy was in an unsafe condition.
(Tr. 458). Barker did not tell Burton that the shuttle car was
unsafe.
(Tr. 458).
12~

Mr. Barker was operating the shuttl~ car more cautiously

than usual.

(Tr. 462).

13. Mr. Barker was assured everyone in the section knew the
brakes were not operating.
(Tr. 466).
14. There was no refusal to operate the equipment. Barker
felt he was doing a service to Downard to keep the buggy operating.
(Tr. 466).

15. William Burton, shift foreman, encountered Barker late in
the shift. He stated he was having problems with the brakes. They
were "bad" or "screwed up." However, he (Barker) was running it
fine and the crew had been notified. (Tr. 721-722).
16. Mr. Burton didn't hear about the Barker/Anderson near
collision until about a month later. (Tr. 728).
FURTHER FINDINGS
It may well be that Mr. Barker could run this equipment by
using reverse tramming. Howeveru the use of a shuttle car without
service brakes is 01 unsafeij 9 within 75.1725 (a) and the equipment must
be removed from service immediately.
Mr. Dolinski confirmed Mr. Barker's view that there were no
brakes 0 which was the condition Mr. Dolinski found when he examined
the equipment. Mr. Manson 1 s contrary testimony is rejected.
Mr. Dolinskiu Manson's supervisor, would be more knowledgeable than
Manson.

The statements by Superintendent Burton, the shift foreman,
further confirm the lack of brakes on the equipment. Mr. Burton
stated the shuttle car should have been taken out of service because
it was unsafe to operate.

1760

As a defense, Cyprus asserts that the animosity between shuttle
car operator Barker and spell foreman Downard, as noted in the record, establish a situation where Barker was interested in "getting"
the foreman.
Mr. Lindsey testified along these lines.
In addition, Superintendent Burton indicated that Messrs. Downard and Barker did not
like each other. He cites the incident where Barker was suspended
by Downard as a possible motive for their feelings (i.e., Downard
and Barker).
I am not persuaded by Mro Lindsey's testimony. The two men may
not have gotten along 1 but the testimony about a "bad" relationship
is somewhat ambiguous and vague.
Further, t~e Downard/ Barker incident where Barker was suspended and lost five hours' pay only
happened two weeks before the hearing.
In point of time, this would
not be too relevant here. Mr. Barker was suspended by Mr. Downard
for heckling him; Burton did not recall any o~her incidents involving the two men.
From having observed the witnesses, it is apparent that

Mr. Barker would not hesitate to complain about safety matters and
made such a complaint here; however, the equipment was not removed from service.

SIGNIFICANT AND SUBSTANTIAL
The case law as to S&S citations are set forth in connection
th the previous citationo
The record establishes criteria as to paragraphs
the
formulation,

~l)v

(2) and

Paragraph (3) is also established since Barker almost collided
Andersono
cyprus argues s&s was not established because the Secretary
led to prove there was a reasonable likelihood that an injury
would occuro
I conclude a reasonable likelihood existedo
In connection with
aQnear miss 8w between the shuttle car and Anderson, if the :miner
helper had not jumped, he would have been struck by the shuttle car.
Inspector Taylor further confirmed that it was reasonably
likely that a serious injury or a fatality could occure His opinion
was based in part on the shuttle car operator's limited visibility,
the area in which it was operating, the size of the equipment, the
slope and undulating floor.
(Tr. 382-385).

1761

UNWARRANTABLE FAILURE
I consider Paul Downard, the spell boss, to have been negligent. Mr. Downard had an opportunity to more thoroughly investigate
the shuttle car problem. Further, an upper level supervisor also
failed to follow up on the problem. I consider such conduct constitutes high negligence which establishes a statutory unwarrantable
failure.
cyprus argues unwarrantable failure does not apply here because
there are no specific guidelines or tests that can be performed
under the cited standard to determine the adequacy of the brakes.
Compare 30 C.F.R. SS 56.14101 and 75.523-3.
I am not persuaded.
"No brakes" as matter of law are "unsafe"
within the meaning of S 75.1725(a). The unwarrantable failure
arises here in the continued use of the shuttle car without brakes
and the failure of two supervisors to investigate and remedy the
situation.

Cyprus argues Mr. Barker found some braking power because he
bled the brakes and observed pressure on the brake calipers.
Mro Downard also found some braking power.
I am not persuaded.
Mr. Barker said he had "no brakes." His
testimony was confirmed by the maintenance foreman Mr. Dolinski. on
February 13, he "pushed on the brake pedal and the pedal went all
the way to the floor" (Tr. 665) and in his investigation he "didn't
have any brakes at allo 11
(Tr. 685).
Fo~

the above reasons 0 Citation No. 3850267 should be affirmed.
CIVIL PENALTIES

The size of t:.he operator 0 the appropriateness of the penalty
the companyvs prior history have been previously discussed.

The operator was negligent in that it failed to thoroughly
investigate and remedy this situation.
Gravity is high since miners could have been struck by the
shuttle car.
Abatement was not involved in this situation.
For the foregoing reasons, I enter the following:

1762

ORDER

1. In Docket No. WEST 92-485, Order No. 3588140, is modified
to a 104(a) citation and the citation, as modified, is AFFIRMED and
a penalty of $200.00 is ASSESSED.
2. In Docket No. WEST 92-485, Citation No. 3850267 is AFFIRMED
and a penalty of $600.00 is ASSESSED.
3.
The contest cases in WEST 92-370-R and WEST 92-371-R,
pending herein, are DISMISSED.

Law Judge

Distribution~

Ro Henry Mooreu EsqQu BUCHANAN INGERSOLL, 600 Grant Street 0 58th
Floorf Pittsburgh 0 PA 15219-2887 (Certified Mail}
Margaret Ao Miller 0 Esq. 0 Office of the Solicitoru U.S. Department
of Laboro 1585 Federal Office Building, 1961 Stout Street, Denver 0
co 80294 (Certified Mail)

ek

1763

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

v.
HENRY B. SALYERS
DARRYL KEENE
STEVE VINSON
JIMMY D. WYATT Employed by
MIDDLE CREEK ENERGY
INCORPORATED,
Respondents

..
."
..
..
.
.
0

:

AUG 2 71993

CIVIL PENALTY PROCEEDINGS
Docket No. VA 92-83
A.C. No. 44-05772-03557-A
Docket No. VA 92-84
A.C. No. 44-05772-03558-A
Docket No. VA 92-89
A.C. No. 44-05772-03559-A
Docket No. VA 92-93
A.C. No. 44-05772-03555-A
No. 1 Mine

DECISION
Appearances:

Stephen Turow, Esq., Office of the Solicitor,
Department of Labor, Arlington, Virginia,
for Petitioner;
Henry B. Salyers, Pounding Mill, Virginia,
for himself;
Darryl Keene, Cedar Bluff, Virginia,
for himself;
Steve Vinson, Richlands, Virginia,
for himself;
Jimmmy D. Wyatt, Cedar Bluffu Virginia,
for himselfo

Before~

Judge Barbour

u.s.

STATEMENT OF THE PROCEEDINGS
These are civil penalty proceedings initiated by Petitioner,
'the Secretary of Labor ( n Secretaryi1 ) Q against the Respondents 0
Henry ~. Salyers, Darryl Keeneu Steve Vinson and Jimmy D. Wyatt,
pursuant to section llO(c) of the Federal Mine Safety and Health
Act of 1977 ("Mine Act 19 or Q'Act") u 30 u.s.c. § 801 et seg. 1 The

]Section llO(c) of the Act states in pertinent part:
Whenever a corporate operator violates a mandatory
health or safety standard or knowingly violates or
fails or refuses to comply with any order issued under
this [Act) or any order incorporated in a final
decision issued under this {Act] except an order
incorporated in a decision issued under subsection (a)
or section lOS(c), any director, officer, or agent of
such corporation who knowingly authorized, ordered or
(continued .•• )

1764

Secretary asserts that Wyatt, as superintendent of the No. 1
Mine, a mine owned and operated by Middle Creek Energy, Inc.
("Middle Creek"), knowingly authorized ordered or carried out
violations of mandatory safety standards 30 C.F.R. S 75.400 and
30 C.F.R. S 75.517. He further asserts that Salyers, Keene and
Vinson, as section foremen at the No. 1 Mine, each knowingly
ordered, authorized or carried out the same violation of
section 75.400 as Wyatt. The Secretary seeks the assessment of
civil penalties against the individual Respondents for the
alleged violations.
An evidentiary hearing was conducted in Tazewell, Virginia,
at which the Secretary was represented by Steven Turow and the
individual Respondents represented themselves. 2

STIPULATIONS

The parties stipulated as follows:
1.
On February 14, 1991, Steven May, an inspector of
the Secretary's Mine Safety and Health Administration
("MSHA") conducted an inspection of the No. 1 Mine, a mine
owned and operated by Middle Creek.
2.
As a result of the inspection May issued three
citations: Citation No. 3507924, a citation issued pursuant
to section 104(a) of the Act and alleging a violation of
section 75.517; Citation No. 3507925, a citation issued
pursuant to section 104(a) of the Act and alleging a
violation of section 75.400; and citation No. 3507926. 3
3.
On February 13 and 14, 1991, Wyatt was the mine
superintendent at the No. 1 Mine and Salyers, Keene and
Vinson were section foremen,
Middle Creek is a corporationo

l~oooCOntinued)

such corporation who knowingly authorized, ordered or
carried out such violation, failure, or refusal shall
be subject to the same civil penalties, fines, and
imprisonment that may be imposed upon a person under
subsections (a) and (d)o
lO u.s.c.

z 820(c).

2 At

the commencement of the second day of the proceeding, counsel for
the Secretary moved to withdraw the petitions against Keene and Vinson and to
dismiss the cases in which they were named as parties. Tr. 315. I granted the
motion. ~ However, since the allegations against the two remaining
Respondents are intertwined with those previously pending against Keene and
Vinson, I will reference all of the allegations in discussing and ruling on
the remaining cases.
3citation No.

3507926 is not at issue in these proceedings.

1765

CON'.l'EN'.l'IONS OF TIE PARTIES

counsel for the Secretary stated the evidence would show
that on February 14, 1991, May found conditions at the mine that
cumulatively resulted in an imminent danger and in the issuance
of an order of withdrawal pursuant to section 107(a) of the Act.
In addition, and pertinent to these proceedings, the conditions
individually constituted violations of the alleged mandatory
safety standards. The violation of section 75.400 concerned
accumulations of loose coal and coal dust and the violation of
section 75.517 concerned tears in the jacket of a trailing cable
for a continuous mining machine ("continuous miner"). As a
result, in conjunction with the imminent danger order of
withdrawal, citations alleging the violations were issued by May.
According to counsel, all of the Respondents were aware of
the existence of the coal and coal dust, all were in a position
to correct the violation and all failed to do so. Tr. 8-9.
Moreover, Wyatt was aware of the condition of the trailing cable
and was in a position to have'the cable repaired andjor replaced
and failed to do so. Tr. 9.
Wyatt, responding on behalf of the Respondents, maintained
the government could not substantiate that an imminent danger had
existed and that the order and alleged violations did not convey
"the true picture of the conditions." Tr. 10. In Wyatt's view,
none of the Respondents "willfully violate[d] any standards of
the Act. 11 Id.
TIE SECRETARY'S WITNESSES
STEVEN KAY

May was the Secretary 0 s first witness. Prior to being
employed by MSHAu May had a total of eight years experience as a
mine electrician. In addition, May was certified as an
electrical repairman, a maintenance foreman and a chief
electrician. Tr. 15.
May described Middle Creek 0 s No. 1 Mine as an underground
mine where coal was mined by continuous miners, hauled to
underground transfer points by ram cars and transferred to the
surface by conveyor belts. Tr. 16. May stated that the mine
produced approximately J,OOO tons of coal per day and that there
were two production shifts. 4 Tr. 17Q 170. With a labor force of
4 It

was stipulated during the course of May's testimony, that there were
three shifts at the mine: 11:00 p.m. to 7:00a.m., a maintenance shift of
which Vinson was the foreman; 7:00a.m. to 2:30p.m., a production shit~ of
which Salyers was the foreman; and 2:30p.m. to 10:30 p.m., a production shift
(continued ••• )

1766

approximately 35 miners, May described the mine as of a medium
size. Tr. 170-171.
May identified a drawing of part of the section of the mine
where the violations were alleged to have occurred (the 001
section) and stated that the drawing represented the area as it
had existed on February 14. P. Exh. 3; Tr. 18. The drawing
depicts five advancing faces. (They are numbered 1 through 5 from
left to right.) Directly outby the No. 5 face is a crosscut and
May stated that a continuous miner was located in the crosscut,
to the right of the face when looking inby. The No. 4 face was
further advanced than the No. 5 face and a roof bolting machine
was parked outby the face.
A trailing cable ran from the continuous miner to the power
center located in the third crosscut outby the No. 4 face. The
transfer point was in the No. 4 entry between the third and
fourth crosscut outby the No. 4 face. Tr. 20.
May stated that he arrived at the mine at approximately
2:00 p.m. on February 14. It was the first day of a regular
quarterly inspection of the entire mine. May and Wyatt proceeded
to the 001 section. Tr. 24. May and Wyatt passed the power
center, the electrical installation where a transformer lowered
incoming electrical current to 480 volts. Tr. 26. May and Wyatt
walked past the power center and up the No. 5 entry. Tr. 54.
The trailing cable for the continuous miner was lying on the
floor of the entry. Id. May believed he could hear machines
running on the section and he assumed that mining was in
progress. Tr. 50, 94-95. May began to examine the cable and the
~oise stopped.
Tr. 50. May believed the cable was energized.
T&. 51. May stated he could see the light on the continuous
miner. T&. 150.
May described the cable. It was approximately 2 inches
thick.
Inside there were three power conductors and a ground
monitor and ground wire. Electricity ran through the conductors.
The monitor and ground wire were safety devices and if either
~ere broken or came in contact with a conductor, the continuous
miner was supposed to de-energize. Tr. 29.

4( ••• continued)
of which Keene was the foreman. Tr. 179-180.

1767

The entire trailing cable for the continuous miner measured
approximately 500 feet in length. The continuous miner was
located about 150 feet from the power center. The excess cable
was lying in loops in the No. 5 entry, one side of each loop
being approximately 30 feet long. Tr. 30. The loops were lying
along the rib. Tr. 54. The loops extended inby the No. 5 entry
to the corner of the entry in which the continuous miner was
located {crosscut Bon P. Exh 3).
May inspected the looped cable and initially observed 17
places where it was torn and ripped. May stated that after the
cable was totally unlooped, he counted 18 such places. Tr. 31.
May did not recall if the tears were at places in the cable that
had been taped previously, but he described the cable as being
"as bad as I've seen." Tr. 37. In each of the 18 places May
maintained that he could see through the tears to the interior of
the cable. Tr. 55.
The longest tear was approximately 25 inches long. (May
measured the tear with a folding ruler. Tr. 31-32.) At another
tear where the cable's outer insulation was missing for
approximately 8 to 10 inches, May found that the three
conductors had been rolled together and the ground monitor had
been rolled around the conductors. Tr. 32. In addition, one of
the conductors was bare and a wooden wedge was driven between the
bare conductor and the ground wire. Tr.33. May believed the
conductor and the ground wire had burned together and had been
separated subsequently by the wedge. Tr. 79-80. May speculated
the wedge had been driven between the conductor and the ground
wire so the wires would not touch and de-energize the continuous
minero Tr. 34. (On cross-examination May stated that he could
~ot recall pointing out the bare wires and wedge to Wyatt 9 and he
confirmed that he did not mention the condition in his notes.
TE'o

81-S;'L y

May explained that a ground wire does not have to be
insulated but that a conductor requires insulation. Tr. 60-61,
16o The insulation keeps the current from traveling from one
conductor to another. According to May, when he first saw the
cable he could not believe it was being used. Ratheru he thought
was @@some old cable that was discarded." Tr. 16lo
May concluded the condition of the cable constituted a
violation of section 75.517. The violation was based upon the
torn and exposed areas in the cable. Tr. 148-149. May stated
that in his opinion any unrepaired break or tear in the cable
cover was a violation of the standard and it did not matter how
many of the interior wires were exposed. Tr. 149. May described
what be regarded as the essence of the violation: the cable "had
18 places that were not properly insulated that were open, .and
even one with a bare phase wire." Tr. 89.
·

1768

May was especially concerned about the tear that exposed the
bare conductor. He believed it posed a dual hazard in that
miners who touched the conductor could be shocked and if the
conductor touched the ground wire, the resulting arc could ignite
a fire. Tr. 33. Although the average miner wore rubber boots,
some miners wore leather boots and if they stepped on the bare
conductor they could be shocked. Tr. 35. They also could be
shocked if they crawled and put their hands on the bare
conductor. Tr. 35. However, crawling by the miners was not
likely since the entry was approximately 48 inches high. Tr. 83.
Because the cable carried 480 volts of electricity any miner
contacting it could be critically injured or killed. IQ.
May also believed the tears exposing insulated conductors
created a shock hazard because without the protection of the
cablets out jacket a miner who touched an insulated conductor
could be shocked. In short, the potential for injury was
increased by the fact that the outer jacket of the cable was not
providing the protection it was designed to ensure. Tr. 63, 73.
Moreover, if the conductor and ground wire contacted one
another and arced, coal dust or loose coal in the vicinity of the
arc could ignite, and May stated that he had observed coal and
coal dust and loose coal measuring about 2 inches deep lying on
and around the cable. Tr. 36, 38, 42. May believed it was
9
~highly likely" such an ignition could happen.
Tr. so.
After examining the cable, May walked to the continuous
miner. Wyatt did not accompany him. While walking from the
power center to the coiled cable and from the cable to the miner
~ay had observed coal and coal dust on the mine floor.
Lateru
when May had an opportunity to inspect the entries and face
~reasJ
also noted the presence of coal and coal dust in all 5
®ntries from the transfer point inbyu although the accumulations
were located mainly in entries No. 3 and No. 4. Tr. 43, 46. The
coal and coal dust had accumulated in even greater amounts in the
face areas than it had between the power center and the miner.
As May explainedu loose coal and coal dust will occur
where mining has taken place. Thereforeu May did not
believe that the coal and coal dust that was present in each
entry from the face to 40 feet outby the face was in violation of
~ection 75.400.
Tr.43-44. Nonethelessg the accumulations that
~xisted from 40 feet outby the faces to the transfer point did
~iolate the standard, and May estimated that the distance the
~iolative accumulations existed in each entry was 200 feet or
more. Tr. 44.
In describing the accumulations in the crosscuts, May stated
that the accumulation in the crosscut furthest outby (crosscut E
on Exh. P. 3) gradually built up to a depth of 51 inches ~t the
feeder. Tr. 136. Crosscut D was not "too awful bad" although
there was some accumulation. Id. In crosscuts E, D and c there

1769

was some rock dust, but in crosscuts A and B there was none. May
also stated that where the coal in the entries had been run over
by mining equipment, coal dust in depths of approximately 2
inches existed. ~, 51. The coal and coal dust in the entries
was dry and black and May described the section in general as
being "very dry". Tr. 46, 83. May did not see any evidence that
a clean up was in progress on the section. Tr. 96.
May admitted, however, that rock dusting would have been
done after the section had been cleaned and that the
accumulations he observed could have been from the production
shifts that followed Vinson's maintenance shift. He stated he
had "no idea" how much cleaning Vinson bad done on the 11:00 p.m.
to 7:00 a.m. shift. Tr. 132, 134, 138. He agreed it was
possible Vinson might have made certain that everything was
cleaned, but May added, "Wyatt told me the reason the section was
dirty was that • . • (Vinson's crew had] worked maintenance on
the • • • [other production section] and had not got down . • •
[to the section where the accumulations existed] to clean it up."
Tr. 132. May further agreed that before he reached the section
where the accumulations existed, Keene, foreman of the 2:30 p.m.
to 10:30 p.m. shift, could have been in the process of getting
ready to clean the entries. Tr. 145.
In addition to the entries and crosscuts, May found that at
the feeder coal dust had accumulated from the floor to the roof,
a distance of 51 inches. Tr. 47, 119. The hazard from coal dust
adjacent to the feeder was that there were potential ignition
sources present at the feeder -- bearings, electric motors, gears
and pulleys, all of which created heat through friction. Tr. 48.
May agreedu howeverg that be had not tested the dust to determine
its combustible content~ and he further agreed that it could have
contained incombustible material. However 0 he did not believe
~he incombustible content could have been as much as 50 percent
because W[the dust] would not have been black if it had been so
percent incombustible." Tr. 102.
May stated that after viewing the condition of the cable he
had intended to issue an imminent danger order of withdrawal.
Howeverv by the time he next saw Wyattu May had an opportunity
also to view the accumulations. Thereforeu he based the imminent
danger order on both the cable and the accumulations. May
~tatedu vo[w]ith the bare phase lead and with the coal . • • as it
~as ! felt that if they continued to run [coal] then you would
have had a disaster on the section.~~ Tr. 157" In conjunction
with the withdrawal order May issued citations for violations of
sections 75.517 and 75.400.
The citations were abated by 9:30
a.m., the following morning. Tr. 126-127.
With regard to the allegations that Wyatt, Vinson, Keene and
Salyers knowingly violated the cited standards, May testified he

1770

recommend that MSHA conduct an investigation to determine if they
had acted contrary to section 110(c). He made the recommendation
because of the seriousness of the cited conditions. Tr. 176.
RICKEY LAWSON

Lawson, who on February 14, 1991, was a mechanic/electrician
for Middle Creek at the No. 1 Mine, was the Secretary's next
witness.
(At the time he testified he no longer worked for
Middle Creek.) Lawson worked on the 11:00 p.m. to 7:00 a.m.
shift and he was supervised by Vinson. He described the nature
of his job as servicing equipment and repairing anything that
broke down during the day shifts. Tr. 183.
On February 14, 1991, Lawson had worked for approximately
three to five months at the mine, and Lawson stated that the
trailing cable May cited as being in violation of section 75.517
was in use when he started work. Tr. 184-185. Lawson's job
included repairing the cable, ,.:Which usually involved applying
rubber tape to the outer jacket and covering the rubber tape with
wide, plastic masking tape. Tr. 185. He testified that prior to
February 14, he had repaired the cable "quite a few times."
Tr. 191. However, he had worked with many cables that were in
worse condition than the cited cable. Tr. 186. He acknowledged
that the cited cable had to be taped daily because as the
continuous miner moved, the cable rubbed against the ribs and the
tape from previous repairs wore off. Tr. 187.
Lawson stated that Wyatt told him and all other electricians
Wto seek an eye on the cable." Tr. 187. At one point Wyatt had
also directed the cable be turned around -- that is, reversed -~o that ~orn parts would get less wear.
Tr. 188-189.
(Lawson
~escribed the turning of cables as a common mining practice.
Tr. 194op lHe further stated that he had told Wyatt the cable had
00
<E.t lot of
busted" places in it and he suggested it be replaced.
Wyatt"s response was to tell Lawson to continue taping it and to
£1llkeep an eye on it." Tr. 189.
Lawson described a. 00 game plan° 0 for the cable -- to keep
aatching
to keep it taped and to retape it every night if
0
~ecessary.
Tr 191-192. The continuing problem necessitating
the wgame plan~ was the cable 0 s outer jacket burst as it was
pulled around corners. Tr. 192. Lawson recalled Middle Creek
contacting the manufacturer of the cable and requesting that the
company send a representative to determine why Middle Creek was
having so much difficulty with the cable. Tr. 195.
BERNARD SALYERS

Bernard Salyers, cousin of the Respondent, Henry Sal~~rs,
had worked at the mine as an electrician since 1987.

1771

In February 1991, he was the chief electrician and he worked part
time above ground and part time underground. Tr. 202.
In his opinion the trailing cable had a manufacturing
defect in that "for no apparent reason its outer jacket would
just burst open." Tr. 201. The jacket would separate along a
straight line and the insulated inner wires would be revealed.
Tr. 203-204. The splits were so straight that initially he
suspected the cable had been cut. Tr. 207. Upon observing the
cable closely, he found that at first a small groove would appear
on the cable jacket and the cable would start to separate along
the groove. Tr. 209. He believed the problem with the cable
began two or three months before it was cited. Tr. 205.
According to Bernard Salyers, Middle Creek contacted the
company from whom it had purchased the cable (not, as Lawson
testified, the manufacturer) and the company advised Middle Creek
to cut a piece from the cable and the company would send it to
the manufacturer for analysis; Tr.;·204. This was done, a few
days before May's inspection. Tr. 205. Thus, on February 14,
Middle Creek was waiting for advice from the company whether to
purchase a new cable. Tr. 208. Middle Creek purchased a new
cable from a different manufacturer a month or two after the
citation was issued. Tr. 214.
STEVE VINSON
Vinson began working for Middle Creek in July 1989. On
February 14, 1991, he was a shift foreman at the mine. Vinson
explained that the purpose of his shift, the 11:00 p.m.
to 7~00 a.m. shiftv was to make it possible for the day shifts
~o function as production shifts.
Tr. 221. The only type of
maintenance the production shifts would do was to clean up and to
zock dust. Tr. 222. !n Vinson°s opinionv there was no way a
production shift could clean up all of the coal that had
accumulated during a shift and the maintenance shift therefore
cleaned up what was left. Tr. 222-223u 243.
Wyatt 0 as superintendent 9 always listed for Vinson the jobs
to be done on the maintenance shift. At the end of the list 0
cleaning and rock dusting were invariably included and this was
true for the 11~00 p.m. to 7~00 a.m. shift of February 13-14.
Tr • 2 4 3 o 2 53 •

On that shift Vinson was told to move the belt on the 002
section (the section that was "down") and to clean and rock dust
both sections. Tr. 225. The belt move took about 4 hours and
involved all of the crew. Tr. 226o After the move was
completed, Vinson directed a miner to go to the 001 section (the
production section) to clean, rock dust and work on ventilation.
Cleaning was done with a scoop. Tr. 227. Vinson and three
members of the crew remained at work on the 002 section. ~

1772

Ron Joyce was the miner Vinson sent to the 001 section.
Vinson stated that he went to the 001 section around 6:40 a.m. on
February 14. As best Vinson could recall, he met Joyce at the
feeder. Joyce was cleaning and because the shift was ending,
Vinson stopped Joyce, and Joyce and Vinson left the mine.
Tr. 230, 231.
Although Vinson believed the area in front of the feeder had
been cleaned, he did not think procedures that were required to
move the feeder had been instituted, and it was necessary to move
the feeder to clean immediately adjacent to it. Tr. 230-231. In
any event, the sides of the feeder were not cleaned because the
only way that could have been done was to pull the feeder out of
position, which would have taken 3 hours. Therefore,
accumulations directly in front of the feeder were cleaned but
those at its sides were not. Tr. 246-247. Vinson agreed that
the area around the feeder including the sides of the feeder
could have been cleaned by shovel, but he estimated it would have
taken one man four or five hours. Tr. 252.
At about 3:30a.m., prior to sending Joyce to clean in 001
section, Vinson had inspected the section (including the area
involved in the citations) and he again inspected it at
6:30a.m., shortly before meeting Joyce. Tr. 232-234. Vinson
stated that although the section was a little dirty in the face
of No. 4 and No. 5 entries, it was "nothing that wouldn't pass
inspection that morning," and, indeed, Vinson believed that
Joyce's clean up efforts had been adequate. Tr. 234-235, 256.
Vinson stated that he disagreed with May regarding the
of the alleged accumulations. In Vinson's opinion a
of the areas that May regarded as containing float coal dust
and as being black in color (the entries and cross cuts outby the
continuous miner) really were old rock dusted areas and were
9iwhitish" in coloru not black.
Tr. 238, 246, 249. In Vinson's
opinion "the only places that were really dirty was in the face"
and he added "I done my best to get them cleaned up that night."
~xistence

238.

Vinson added that the fact that May testified he saw rock
dust showed that some cleaning had been done because rock dust is
applied after cleaning. Tr. 240. Vinson believed that the
Nos. lu 2 and 3 entries had been rock dusted -- although he had
not seen Joyce rock dusting and he could not recall if he asked
Joyce if he had done any rock dusting. Tr. 241. He also
believed that rock dusting had been done by hand because, as he
stated, "We just didn't have the manpower there that night with
all the work we had to do." Tr. 251. Vinson explained that one
man was sent to clean up because in his experience one man,
working for three hours, could accomplish all the clean up.that
was usually needed. Tr. 252. Vinson stated that Wyatt wou.ld

1773

have had no prior knowledge of the condition of the section
before Vinson had his crew begin cleaning it. Tr. 248.
With regard to the cited trailing cable, Vinson testified
that two days before the inspection he had helped Lawson tape 2
tears in the cable. Tr. 239.

DARRYL JtBBNB
Darryl Keene testified next. At the time of the hearing he
was working as a ram car operator for another coal company.
However, on February 14, 1991, he was shift foreman for Middle
Creek on the 2:30 p.m. to 10:30 p.m. production shift. Tr. 251.
He had been the foreman for only two or three days and he had
worked for Middle Creek for only three or four months.
Keene stated that as shift foreman he was responsible for
making sure the face areas were cleaned and that cleaning was
usually done with a scoop. Tr. 261. Keene was also responsible
for seeing to it that the face areas were rock dusted. In fact,
Keene, himself did the cleaning and rock dusting. Areas that he
was not able to clean before the shift ended would be reported to
the oncoming shift foreman, Vinson. Tr. 262.
On February 14, Keene entered the mine at 2:10 p.m.
Contrary to his usual practice, he did not get an oral preshift
report from Henry Salyers, the foreman on the 7:00 a.m. to 2:30
p.m. shift. 5 Rather, the preshift report was brought out of the
mine in written form and Keene did not see it before going on the
section and thus had no prior knowledge of whether or not
accumulations were present on the section. Tr. 264-265.
Once on the sectionu Keene inspected all of the headings.
believed that he walked from the power center up the No. 4
entry toward the face. Keene did not believe the No. 4 entry had
an excessive amount of accumulated coal dust, although he stated
that probably there was some present. Tr. 266. Keene described
the entire section as being in need of "some cleaningu 91 except
~e

5

Keene explained:
The preshift is called out to me. The way we done
that is • • • Salyers • • • would call his preshift
report out to me and I would write in a book what he
called out to me what was [done] and what was left.
And then I would come on and do my shift, do my
production. Then two or three hours before Steve
(Vinson) came on I would do the same thing for him.

Tr. 264.

1774

for crosscuts A and B between entries No. 1 and No. 2, areas
which had just been cut and had not yet been roof bolted.
Tr. 269, 290. Regarding the feeder, Keene recalled an area of
perhaps 12 feet where coal had accumulated. Tr. 267.
Keene testified that during his shift there was very little,
if any, production because the continuous miner had been rendered
inoperative by a problem with its methane monitor. Tr. 270, 279,
283. Keene did not check the continuous miner's cable and he was
unaware if it was in need of taping, but he agreed it was general
knowledge at the mine that the cable had a problem that caused it
to split. Tr. 271, 259-260. He also did not know if the cable
was energized but it could have been. Tr. 284.
JIMMY WYATT

Jimmy Wyatt last worked for Middle creek at the No. 1 Mine
in August or September 1991. At that time he had been working at
the mine for approximately two years as the superintendent. He
described his job as being in charge of day-to-day operations at
the mine. Tr. 293. Wyatt stated that prior to February 14,
1991, no orders of withdrawal of any kind had been issued at the
mine while he was the superintendent. Tr. 294. He estimated
that as the superintendent he was required to spend between 25
percent and 35 percent of his time underground. Tr. 296.
On February 14, Wyatt arrived at the mine at approximately
6:15a.m. By the time May arrived at 2:00p.m., Wyatt estimated
that he had spent at least two hours underground. Tr. 298. Wyatt
first went to the 001 section because the continuous miner was
not operable. A ripper jack had broken and needed to be
&epaired. Tr. 298. The jack was fixed around 11:00 a.m., and
Wyatt believed that some mining had been done after it was
repaired. Tro 299.
Wyatt stated that he could not recall when first he had
become aware of the condition of the cable. He described its
propensity to split as a slowly progressive condition, and he
speculated that the first few times it split miners were not
overly concerned. about it. Tr. 299. Wyatt also did not recall
when the piece was cut from the cable and sent to the
manufacturer¥s representative. He believed that Bernard Salyers
had been responsible primarily for doing it. Tr. 300. wyatt did
recall, however, that the cable was not a constant source of
discussion during the daily morning safety discussions at the
mine. While it was true that it was at times discussed, a week
to ten days might pass between such discussions. ~. Middle
creek purchased the cable in approximately September 1990, and it
was put into use upon purchase. Because it required continual
taping the cable was replaced approximately a month or tw~ after
February 14, 1991. In Wyatt's opinion the cable had a
·
manufacturing defect. Tr. 303.

1775

DEWEY RIFE
Dewey Rife, a MSHA special investigator, was the Secretary's
last witness. He was apparently called to refute Wyatt's
contention that while he was superintendent no order of
withdrawal had been issued prior to the imminent danger
withdrawal order of February 14, 1991. Rife stated that MSHA 1 s
records indicated a section l07(a) imminent danger order of
withdrawal had been issued at the mine on September 29, 1990.
Rife, whose knowledge of the existence of the order was limited
to a MSHA computer printout of violations issued at the mine, did
not know upon whom the order had been served. Tr. 308.
RESPONDENTS' BYIPENCE
At the close of the Secretary's case the hearing recessed
until the following morning. When it resumed the Respondents
indicated they felt they had been able to present adequately
their cases through their testimony as the Secretary's witnesses
and through cross examination. The Respondents stated that they
had no testimony or documentary evidence to present but would
rely on what had already been stated and on any closing arguments
they might choose to make.
PISMISSAL OF PROCEEDINGS AGAINST VINSON AND KIENE
Prior to closing arguments, the Secretary's counsel moved to
dismiss the Secretary's petitions alleging knowing violations by
Vinson and Keene. Counsel stated: "The purpose of the [Mine
Act], particularly section llO(c) [of the Act], would not be
further served by continuing a prosecution against either."
Tro Jl5o I agreed and granted the motiono Id. I will affirm the
dismissals at the close of this decision.
CLOSING ARGUMENTS
DE SECRETARY
Counsel began by noting the official positions of the two
remaining Respondents -- that Wyatt was the superintendent of the
mine and that Salyers was the foreman of the shift immediately
preceding the inspection. Counsel maintained the testimony
established the presence of significant accumulations of coal and
coal dust in the 001 section in violation of section 75.400. The
Secretary had proven coal dust was present at the feeder to a
depth of 51 inches and that coal and coal dust existed in
several places along the entries for a distance of 200 feet. He
also asserted the evidence established the presence of coal dust
on the ribs. According to counsel, the testimony of the
Respondents established that at the No. 1 Mine, production and
equipment maintenance came before the cleaning up of
·

1776

accumulations, and that Wyatt and Salyers knew of the
accumulations and failed to take steps to eliminate them.
In view of the fact that the mine was fairly small, it was
reasonable to expect the superintendent to know of the conditions
at the mine. Wyatt was in the mine prior to May's inspection and
he should have observed the accumulations. Equally important,
Wyatt managed the mine in such a way that violative accumulations
were almost inevitable in that clean up duties had a low
priority, for example, one person had been given three hours to
clean up the 001 section.
Turning to Salyers, counsel argued that while his shift may
have "inherited" some coal dust from Vinson's shift, the
testimony made clear Salyers was responsible for leaving major
accumulations of combustible materials at the end of his shift.
That the cited accumulations had been left by Salyer's shift was
established by the fact that Salyers' shift ended shortly before
May's inspection.
Counsel further argued May's testimony that the cable
contained 18 tears, some of which revealed the cables interior
wires and at least one of which revealed a fully exposed
conductor, established a violation of section 75.517. The
testimony confirmed the condition of the cable had been an
ongoing problem given the regularity with which it had split.
In addition, Lawson's testimony indicated that Lawson had raised
with Wyatt the problem created by the defective cable 2 or 3
times prior to February 14. Bernard Salyers also testified that
he had raised the problem of the defective cable with Wyatt prior
to February 14. Counsel stated that given the condition of the
cable 0 the cable should have been removed from the mine and
~eplaced ~ather then have been kept in useo
In eounsel 0 s opinion 0 the coal and coal dust was dry and the
exposed cable wires and potential friction from the feeder
provided possible ignition sources in the vicinity of the
accumulations. Thus 0 the accumulations posed a serious fire
1'ilazarcL !n additio:n 0 t.he rcondit.ion of the cable subjected miners
~Tit t.ltu~ ©01 section to <a serious and possibly fatal shock hazardo
THE RESPONDENTS
JIMMY WYATT

Wyatt argued the company had a clean up plan and that it was
trying to do the best it could to keep the mine clean. He cited
to Vinson's testimony that one man had been sent to clean the
section and had been given three hours to do so and argued that
within this time frame the section could have been cleaned.
Referring to Keene's testimony that he did the clean up duties on
his shift, Wyatt stated it was not unusual at times for a section

1777

foreman to clean. Wyatt also argued that May's description of
the alleged accumulations was suspect and he stated that May had
not measured the accumulations at any particular point.
Wyatt maintained that May's testimony that the cable had 18
places where the inner leads were visible also was inaccurate.
In fact, Wyatt believed that May had probably found only one
place that needed taping. The 18 places to which May referred
were places that Wyatt and May retaped, and they were counted
after the cable had been retaped. According to Wyatt, every tear
in the cable had been retaped as discovered. Wyatt also argued
that May's notes and the citation form contained no reference to
a stick being used to separate the exposed conductor and ground
wire in the cable. The bottom line for Wyatt was that the cable
was not in poor condition, as shown by the fact that it was used
during the remainder of May's inspection and, Wyatt asserted, for
a month or two thereafter, until it was replaced.
Moreoveru the cable did not pose the hazard May contended.
For one thing, the continuous miner was shut down due to a
malfunctioning methane monitor which de-energized power to the
machine. Further, even if the ground wire had been energized the
circuit breaker would have tripped and power would have been cut
off.
The cable itself was lying in an entry that had been the
immediate return and as a result all dust in the entry had to be
maintained at 80 percent incombustible content. The reason May
conveniently failed to take any samples was because he knew the
dust consisted mostly of rock dust.
HENRY SALYERS
~lse

Salyers mairrt.aine.cl 'that he was no :more to blame than anyone
for the existence of the accumulations on the 001 section.

His responsibility was to run coal and to clean when he could.
His shift always cleaned in the face, but if there were any
accumulations in the back areasr they were cleaned up by the
11:00 p.m.tc 7gDO s.m. shift.
Salyers was candid~

That day I cleaned what I could clean in the
face.
3y the time the boss man makes a
section all the timeu watches about all the
other men, keeps his centers up, keeps his
curtains up and everything, there ain't no
way -- with what people you've got there
ain't no way you can go back three or four
breaks back down the hallways and clean the
hallways and keep them scraped up and ke[ep]
the dust scraped up back there.

1778

Tr. 357. In addition, Salyers claimed that May had seen the
feeder before with similar amounts of coal around it and had
never previously written a citation for a violation of section
75.400.
'l'BE VIOLATIONS
30 C.F.R. S 75.400

Citation No. 3507925 states in part:
Beginning at the 001-0 section transfer point
and extending inby in all entries and
crosscuts to within 40 feet of the face areas
of the 001-0 section loose[,] dry coal up to
48 (inches) at the transfer point and from o
to 12 (inches) elsewhere with up to 2"
(inches) of float dust present in the
haulways was prese,l}t. The entire section was
very dry with up to 0.3 % methane in the
No. 2 entry.
P. Exh. 2. The cited standard, section 75.400, provides that
ee[c]oal dust, including float coal dust deposited on rock dusted
surfaces, loose coal, and other combustible materials shall be
cleaned up and not be permitted to accumulate in active workings,
or on electric equipment therein."
Wyatt, as superintendent of the No. 1 Mine, and Salyers, as
foreman at the mine, do not deny they were agents of the cited
corporate operator, Middle Creek. Rather, they maintain there
~as no violation
section 75o400 and even if there was that
~hey did not knowing
authorize order or carry out such
violationo
With regard to the existence of the alleged violation, I
find it existed as charged" May was specific, and to my mind
credibler in
testimony describing the accumulations, and if
~e ~as
articulating their parameters in the body
of the citation than in his testimony it is understandable, for
it is clear that the accumulations were extensive in size and
varied
consistency" Wor was May the only witness who noted
the presence
the accumulationso
Keene, who was the foreman
on the shift during which the accumulations were cited, agreed
the section was
need of ~isome cleaning. 81 Tr. 269.
Mayas testimony that the accumulations existed from the face
areas outby to the transfer points for approximately 200 feet was
persuasive. It is true that May for the most part judged the
existence and consistency of the accumulations by "eyeball:ing"
them. But, there was at least one instance (in the vicinity of

1779

the coiled cable) where he sat in the accumulated coal dust and
found it to be about 2 inches thick and dry.
The credibility of May's testimony is further enhanced by
the fact that he recalled the accumulations as varying in their
characteristics -- testimony that is generally reflective of
actual mining conditions. For example, May noticed that in some
places in the entries the coal had been pushed up against the
ribs while in other places machines had run through it, helping
to reduce it to dust and leveling it out.
In addition, May's description of the coal d~tst that had
accumulated at the feeder also was persuasive. He knew the
height of the entry at the feeder was approximately 51 inches and
he observed that coal dust had accumulated to the roof. I am
persuaded that he accurately described the accumulations at the
feeder not only by his specific testimony of their extent, but
also by Vinson's statement that when he viewed the feeder around
6:40 a.m. on February 14, he did not believe procedures had been
undertaken to move the feeder so that areas adjacent to it could
be cleaned. I am further persuaded by Vinson's acknowledgement
that the sides of the feeder could have been cleaned by shovel
but that it would have taken a miner up to five hours to do it,
and by the fact that the testimony does not indicate such a clean
up, or indeed any other kind of clean up, was undertaken at the
feeder between the time Vinson observed the feeder and the time
May arrived on the section. Further, Keene too noted
accumulations at the feeder.
May believed that there had been some attempt to rock dust
and to clean up the entries a~.d crosscuts before he observed the
$ection 0 and the evidence establishes that May was correct in
~hi~ regardo
Boweverr the clean up effort was inadequate.
vinson ~tated ~hat
general the clean up program at the mine
required the llgOO pom. to 1gOO a.m. shift to clean up what was
left from the two production shifts and I believe this to have
lbeen trueo
Because ther~ ~as no testimony to the contrary 8 I also
credit Vinsonas testimony that Wyatt listed the jobs Vinson was
to assign his crew to doe that the cleaning up of accumulations
and rock dusting were always on the list, and that this was so
for the llgOO p.mo ~o 1g00 aom. shift on February 13 and 14.
~ccording to Vinsonv the program followed by the 11:00 p.me to
7gOO a.m. shift generally was to send only one person to work for
approximately three hours to clean up the section. Vinson stated
that usually this was adequate. However, it seems certain that
the usual program was not adequate on February 14, especially
with regard to the accumulations at the feeder, which existed
when Vinson left the section and which I believe were essentially
the same accumulations found by May.
·

1780

I conclude, therefore, that May properly found a violation
of section 75.400. The testimony of May, who eyeballed the
accumulations, and who was able to describe their consistency and
extent was persuasive and, in my opinion, the Respondents did not
present any testimony to overcome it. Moreover, and as I have
stated, the fact that May was unable to describe with precise
specificity the depths of the accumulations in each entry and
crosscut does not, in my opinion, detract from his overall
credibility, for it is clear to me that the accumulations were
extensive.
KNOWING VIOLATION

The violation having been established the question is
whether Wyatt and Salyers "knowingly authorized, ordered or
carried [it] out?" The Commission has defined the term
"knowingly," as used in section llO(c) as having the meaning:
that [is] used in contract law, where it
means knowing or having reason to know. A
person has reason to know when he has such
information as would lead a person exercising
reasonable care to acquire knowledge of the
fact in question or to infer its existence
• • • [T]his interpretation is consistent
with both the statutory language and the
remedial intent of the • • • Act. If a
person in a position to protect employee
safety and health fails to act on the basis
of information that gives him knowledge or
reason to know of the existence of a
violative conditionu he has acted knowingly
and in a manner contrary to the remedial
~ature
the statute.
Kenny Richardson v. Secretary of Labor, 3 FMSHRC 8, 16 (January
198l}u aff'd, 669 F.2d 632 (6th Cir. 1982)q cert. denied, 461
u.s. 928 (1983).
~ay testified that Wyatt told him that Vinson's crew had not
gotten the section cleaned. Tr. 176. May believed that a
conscious decision was made by Wyatt to produce coal in any event
and to put production ahead of safety. Tr. 176-177. However 1
even if Wyatt stated to May that Vinson's crew had not cleaned
the sectionQ it does not follow that Wyatt necessarily knew this
before the conditions were pointed out to Wyatt by May. Rather,
it could be that Wyatt assumed after he and May observed the
accumulations that they were the result of inadequate clean up by
Vinson's crew. Thus, the Secretary's case for a "knowing
violation" must be established, if it is established at all, on
another, less ambiguous basis.

1781

In my view, the chronology of events provides such a
rationale. May arrived at the mine at approximately 2:00 p.m.
At that point Wyatt had been underground for approximately two
hours and by Wyatt's own testimony he had been on the 001 section
where he had inspected the continuous miner. Salyers, who was
the foreman of the shift during which Wyatt was underground, did
not testify. But Keene, the foreman immediately after Salyers'
shift, stated that when he arrived on the section, the entire
section was in need of some cleaning, and there was no testimony
that Keene had the section cleaned prior to May's arrival.
Indeed, common sense dictates that there was not time to have had
this done.
May testified, and I have accepted, that accumulations
existed in each entry for a distance of approximately 200 feet or
more. These accumulations were visually obvious. I believe it
permissible to infer from the presence of accumulations at the
beginning of Keene's shift that during Salyer's shift the same or
substantially similar accumu~ations existed and that they existed
when Wyatt was underground before May arrived. It is not clear
where the continuous miner was positioned when Wyatt was
underground and it may be that it was not where May observed it
because the Secretary and Wyatt agree that at least some mining
may have been done after Wyatt viewed the machine. Nonetheless,
if the presence in the entries of the same or substantially
similar accumulations can be inferred while Wyatt was
underground, it can also be inferred that to reach the continuous
miner Wyatt would have had to pass through areas containing the
accumulations. Since the accumulations were obvious, I find that
Wyatt knew of the existence of the accumulations prior to May
observing them.
It having been established that Wyatt knew of the violationu
question becomes whether Wyatt acted to try to eliminate the
condition? There is no evidence that he did, and the lack of any
such evidence leads me to conclude that Wyatt knowingly violated
section 75.400 and accordingly is liable for a civil penalty
pursuant to section llO(c) of the Act.
~he

I also conclude that Salyers knowingly violated the
standard. As I have found, the violative accumulations found by
May on the 001 section were extensive, and I have concluded that
the same or essentially similar accumulations existed during
Salyers shift. As foreman, Salyers was responsible for the
conditions on the section. The accumulations were visually
obvious and I conclude Salyers knew of their existence.
As with Wyatt, the question becomes whether Salyers acted to
try to eliminate the condition? I have noted that Salyers did
not testify on his own behalf. I note as well that there is
nothing in the record from which to infer that he tried to clean
up the accumulations before Keene's shift took over. Indeed,

1782

because Keene did not get the usual oral preshift report from
Salyers and thus was not alerted to the presence of the
accumulations prior to coming on the section, the implication is
that Salyers did not give elimination of the accumulations the
priority it deserved.
Salyers' argument that his job was to run coal and clean
what he could and that he could not keep the section clean with
the number of people he had on hand, is no excuse for failing to
take steps to try to remove the accumulations. The law may not
in all instances require the agent of a corporation, such as a
foreman, totally to correct an existing violation but it does
require him or her to try. A foreman cannot simply neglect the
problem because there is "no way" to correct it.
I conclude therefore that Salyers also knowingly violated
section 75.400 and accordingly is liable for a civil penalty
pursuant to section llO(c) of the Act.
30 C.P.R. 5 75.517

Citation No. 3507924 states in part:
The 480 three phase continuous mining
machine's trailing cable in use on the 001-0
section has 18 damaged places where the outer
jacket was removed with inner leads visible.
l place was 25" (inches) long [.] Another
place had outer and inner insulation removed
with bare phase and ground wires present.
This was located on dry, float coal dust down
the No. 5 entry to the section transformero
lP Exho lo The cited standardv section 75.517 0 provides, "Power
wires and cables, except trolley wires, trolley feeder wires, and
bare signal wires, shall be insulated adequately and fully
protected."
As previously mentioned, Wyatt does not deny that he is an
agent of Middle Creek. Wyattis attack on the violation
essentially consists of challenging the credibility of May's
testimony regarding the number of places where the outer jacket
of the cable was torn and presence of a piece of wood being used
as a wedge to separate the exposed conductor and the ground wire.
I am persuaded, however, that May's testimony regarding the
condition of the cable is accurate to the extent that there were
18 places requiring taping or retaping due to tears in the
cable's jacket. May counted the places. May helped to tape the
cable. In addition, Lawson, Bernard Salyers, Keene and Wyatt
agreed the cable was defective and subject to repeated splitting,

1783

and I accept that this was true. The propensity of the cable to
split lends further credence to May's version of what he found.
I also conclude that at one of the tears the bare wire of
one of the conductors inside the cable was exposed through the
tear. While I agree with Wyatt that May's failure
contemporaneously to record the existence of the alleged piece of
wood that supposedly separated the conductor and the ground wire
casts doubt upon its existence, I conclude that the question of
whether or not the wood was present is beside the point when
considering the existence of the violation. Section 75.517
requires the cable to be insulated adequately and fully
protected. When the outer jacket is torn, as it was in 18
instances, the cable is not adequately insulated and the standard
has been violated. Artificial separation of a naked conductor
from a ground wire would simply augment the overall gravity of
the violation.
KNOWING VIOLATION

The violation having been established, the question is
whether Wyatt knowingly violated it. There is no doubt that the
generally defective nature of the cable was known to Wyatt.
However, this does not establish a knowing violation, unless in
some fashion Wyatt did nothing to protect against the cable
splitting and his failure to act lead directly to the 18 tears in
the cable. It must be recognized that use of the cable was
acceptable to MSHA, provided it was adequately taped. Afterall,
and as Wyatt points out, once the violation was abated by taping
the tears the cable was left in use for one or two months more.
In my view 1 the Secretary has not established that Wyatt
failed to act to prevent the cited tearso Rather, the testimony
leads me to conclude that Wyatt took some pains to make certain
·the cable was properly tapedo Lawson 1 s testimony that prior to
the violation being cited Wyatt directed Lawson and all other
electricians to 11 keep an eye on the cable" was not refuted.
Similarly; his testimony that Wyatt ordered the cable turned to
reduce the tears was not contradicted. While Lawson also
testified he suggested to Wyatt that the cable be replaced, I do
not draw an inference adverse to Wyatt from the fact that it was
not taken out of service. As I have noted, use of the cable
apparently was acceptable to MSHA provided it was adequately
repaired.
I further recognize that when the violation was cited,
Middle Creek was awaiting an opinion from the company from whom
it had purchased the cable regarding why the cable was prone to
split and what could be done about it. The advice was sought
while Wyatt was superintendent and is additional evidence that
action was being taken in response to the problem.
Given the fact the cable could be used provided it was
properly taped, I do not find persuasive counsel's argument that

1784

Wyatt knew the cable was defective and should have had it
replaced prior to being cited for the violation of section
75.517. Nor do I find that the Secretary has established that on
February 14, Wyatt knew or should have known of the existence of
the tears in the cable.
I have found that on February 14, Wyatt was on the 001
section prior to May's arrival and it is true that Wyatt directed
his attention to the condition of the continuous miner. However,
it is not certain where the continuous miner was located and thus
it is not certain Wyatt had to walk past the area of the cable
where the tears existed in order to reach the miner. Moreover,
even if he did pass the defective area of the cable while he was
on the 001 section, there is no basis from which to infer the
tears (unlike the accumulations) were so visually obvious he
would or should have observed them while passing by. May found
them because he was specifically inspecting the cable and the
evidence does not suggest to me that Wyatt should have made a
special point of examining the.cable. While the splitting of the
cable was admittedly an ongoing problem, from Wyatt's viewpoint
it seems reasonable to have believed that his directives to "keep
and eye on the cable" and to keep it taped were being followed.
He had instructed all of the electricians in this regard, and his
testimony that the cable was not a frequent topic of discussion
at daily safety meetings was not contradicted or challenged.
Therefore, I conclude that Wyatt did not knowingly authorize
or order the violation of section 75.517, and I will dismiss this
portion of the Secretary's penalty petition at the close of this
decision.
GRAVITY OF VIOLATION
UD OTHER
APPLICABLE CIVIL PENALTY CRITERIA

Having found that Wyatt and Salyers knowingly violated
section 75.400, I now turn to the gravity of the violation and to
the other applicable civil penalty criteria. The accumulations
of loose coal and coal dust were extensiveu they were dry and
they existed in the immediate vicinity of potential ignition
sources. I credit Mayis testimony that the feeder mechanism
contained many such sources -- bearingsu electric motors, gears
and pulleys -- the malfunction of any one of which could have
ignited the accumulated coal and coal dust. I also note that the
defective cable was lying in coal dust and that had the
conductors contacted one another the circuit breaker, which was
supposed to de-energize the cable, could have failed and the an
ignition could have resulted. Indeed, even if the circuit
breaker functioned properly an arc or spark would have occurred
first and the coal dust could have ignited. The fact tha~ the
continuous miner may have been "down" at the time the violation
was cited is beside the point, because Middle creek expected to

1785

repair it and resume mining presently. Given the extent and
nature of the accumulations and the presence of numerous
potential ignition sources, I conclude the violation was very
serious.
Because I have found that Wyatt and Salyers actually knew of
the existence of the accumulations and failed to take steps to
eliminate them, I find that both exhibited more than ordinary
negligence in allowing the violation to exist.
I also find that Wyatt exhibited good faith in attempting to
achieve rapid compliant with section 75.400 after the violation
was cited.
There is no evidence that Wyatt and Salyers, acting on
behalf of Middle Creek, had any history of being cited previously
for knowingly violating the Act or the mandatory health and
safety standards promulgated pursuant thereto.
CIVIL PENALTY
The Secretary has proposed that a civil penalty of $700 be
assessed against Wyatt for the violation of section 75.400 and
that a civil penalty of $400 be assessed against Salyers. I find
both these proposals somewhat excessive in view of the fact that
Wyatt and Salyers, especially Salyers, appeared to me to be
persons of limited means.
Still, if section 110(c} is to have a
deterrent effect, penalties assessed pursuant to it must be more
than a slap on the wrist. Those penalized must realize that the
authority of their positions carries a heightened responsibility
to act to eliminate violative unsafe conditions once they are
~{nowno
Accepting the continuing existence of violations by doing
nothing
~liminate them after discovery is to fail to act in
@Ccord with the responsibility the Mine Act places upon those who
iunction on the corporate operator 1 s behalf.
I therefore assess a civil penalty of $400 against Wyatt for
knowing violation of section 75.400 and a civil penalty of
00 against Salyers for his knowing violation of section 75.400.
ORDER
DOCKET NO. VA 92-83
The Secretary 1 s petition to assess a civil penalty against
~enry Salyers for the violation of Section 75.400 is GRANTED.
Henry Salyers is ORDERED to pay a civil penalty of two hundred
dollars ($200) within thirty (30) days of the date of this
decision for the violation of section 75.400 as cited in Citation
No. 3507925 on February 14, 1991, at Middle Creek's No. 1 ·Mine.

1786

POCKET 10. YA 92-84

The Secretary's petition for assessment of civil penalty
against Darryl Keene is DISMISSED.
POCKET 10. VA 92-89

The Secretary's petition for assessment of civil penalty
against steve Vinson is DISMISSED.
pocKET 10. YA 92-93

The portion of the Secretary's petition for assessment of
civil penalty assessment against Jimmy Wyatt for the violation of
section 75.517 as cited in Citation No. 3507924 is DENIED. The
portion of the Secretary's petition for assessment of civil
penalty against Jimmy Wyatt for the violation of section 75.400
is GRANTED. Jimmy Wyatt is ORDERED to pay a civil penalty of
four hundred dollars ($400) within thirty (30) days of the date
of this decision, for the violation of section 75.400 as cited in
Citation No. 3507924 on February 14, 1991, at Middle Creek's
No. 1 Mine.

J) VV, d f' fJ{M batvf'lDavid F. Barbour
Administrative Law Judge
Distribution:
Turow 9 Esqo 0 Office of the Solicitoru U.S. Department
Wilson Boulevard 0 Suite 516 0 Arlingtonu VA 22203
~certified Mail)

Stephen~.

©f Labor 9

~015

Henry B. Salyers, Rt. 1 0 Box 617 0 Pounding Millu VA
«certified Mail)
~arryl
~ail)

Keene 0 Rt 3 0 Box 253-Cu Cedar Bluffu VA

Steve Vinson, Box 18 0 Richlands 0 VA

1787

24609

24637

(Certified

24641 (Certified Mail)

FEDERAL J!IIlf.E SA.F.ETY AliD BEAirTH REVIEW COIIIIISSIOII
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 2 71993
PEABODY COAL COMPANY I
Cont.estant
v.

:

CONTEST PROCEEDINGS

:

Docket No. KENT 91-1370-R
Citation No. 3417022; 8/27/91

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

Docket No. KENT 91-1371-R
Citation No. 3551055; 8/13/91
Martwick Underground Mine
Mine I.D. No. 15-14074

.
CIVIL PENALTY PROCEEDINGS
. Docket No. KENT 92-99

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

A.C. No. 15-14074-03599

:

PEABODY COAL COMPANY 1
Respondent

g

Docket No. KENT 92-185
A.C. No. 15-14074-03600

. Martwick Underground Mine
DECISION

Appearances:

David R. Joest, Esq.v Henderson 8 Kentucky,
for Peabody Coal CompanyF
MaryBeth Bernui, Esq., Office of the Solicitoru
U.So Department of Labor 0 Nashville, Tennessee,
for the Secretary of Laboro

Before:

Judge Melick

These consolidated cases are before me under Section 105(d)
the Federal Mine safety and Health Act of 1977, 30 u.s.c.
§ 801, §.1;. seg., the "Act, qa to contest citations issued by the
Secretary of Labor to the Peabody Coal Company (Peabody) and
for review of civil penalties proposed by the Secretary for
violations of mandatory standards alleged therein.
The Secretary moved to vacate Citation No. 3551060
(Docket No. KENT 92-185) on the grounds that there had been
insufficient time to effectively negotiate the disputed
provisions of the operatorFs ventilation plan. The undisputed motion was granted at hearing and Citation No. 3551060
was accordingly vacated. In addition, the Secretary moved at
hearing for a settlement of citation Nos. 3417027 and 3417031
(Docket No. KENT 92-185) proposing a reduction in penalties

1788

from $419 to $275. I have considered the representations,
documentation, and testimony at hearing in support of the
motion and I conclude that the proffered settlement is appropriate under the criteria set forth in Section llO(i) of
the Act. The order following this decision will incorporate
that settlement.
The two citations remaining at issue, Citation No. 3551055
(Docket No. KENT 92-99) and Citation No. 3417022 (Docket Nos.
KENT 91-1370-R and KENT 92-185) allege violations of the
mandatory safety standard at 30 C.F.R. § 75.507 and, more
specifically, as modified charge respectively as follows:
Citation No. 3551055
Power connection points are in return air outby
the last open x-cut on the No. 4 unit (ID 004-4),
1st E. Panel off s.w. submains. Return air was
being coursed over the non-permissible power
connection points of the conveyor belt motor,
starting box and the belt power center located
outby the 004-0 section at the mouth of the panel.
The intake air reading between No. 1 and No. 2 room
was 23,560 cfm and the return air reading at the
block stopping across from the working section was
14,150 cfm.
Citation No. 3417022
Power connection points are in return air outby
the last pen crosscut on No. 1 unit (ID 001-1)
Second Epst Panel. Return air was being coursed
down the belt and track entries over the pump
stationu belt driveu and other power boxes along
the track entry" The intake air between No. 1
and Noo 2 room was 20,400 cfm and 13,299 cfm
immediate return. Split return 15,162.
The cited standardu 30 C.F.R. § 75.507 1 provides that
uu[e]xcept where permissible power connection units are usedu
all power-connection points outby the last open crosscut
shall be in intake air" ui
The issuing inspector for Citation No. 3551055, Cheryl
McMackin McGill, a coal mine safety and health specialist for
the Mine Safety and Health Administration (MSHA) with 16 years
experience in the mining industry, testified that she measured
the intake air of the cited section (see Joint Exhibit No. 2)
at 23,560 cubic feet per minute (cfm) and the return air at
the combined returns at 14,150 cfm leaving a difference of
about 10,000 cfm. According to Ms. McGill, this amount of
air was accordingly passing through the neutral areas, i.e.,

1789

the belt and track entries, after having ventilated at least
one working face. She explained that the violation existed
because this air then passed over a non-permissible power
connection point. Ms. McGill took bottle samples on the
No. 4 unit on the date the citation was issued and upon testing showed .12 percent methane. Methane readings on that date
with a hand held detector showed .2 percent methane in the
return closer to the section.
According to Ms. McGill the violation was "significant
and substantial" and hazardous because of the existence of
non-permissible power connectors in what she believed to be
return air and the presence of methane from the working face
which could result in fire and/or explosions thereby causing
burns and fatalities from asphyxiation.
MSHA Inspector Lendell Noffsinger issued Citation
No. 3417022 on August 27, 1991. He testified that the
difference between the intake and return air in the neutral
entries was about 6,000 cfmon that date. He measured the
intake air between the No. 1 and No. 2 rooms at 20,400 cfm
and on the return at 13,299 cfm (See Joint Exhibit No. 3).
As a result he felt that return air was passing over nonpermissible power connection points on the belt drives and
pumps. He concluded that the violation was "significant and
substantial" because he believed return air from a working
face, possibly containing explosive levels of methane, was
passing over non-permissible power connecting points. He
concluded that it was reasonably likely to cause injuries
such as burns from an explosion. He also detected .1 percent
methane in the return air and noted that the section belt
was running at the time the citation was issued.
MSHA Ventilation Specialist Lewis Stanley agreed that
ventilating air containing methane gas passing over nonpermissible po~er connection points could be dangerous.
Inspector Stanley has been a ventilation specialist for
12 years, has had additional experience as a regular mine
inspectoru and 14 years experience as a coal minero In his
opinionu the condition could result in explosions resulting
from sparks or an arc emanating from the power connection
pointso
Subsequent to hearings and briefing in these cases, the
Commission, in Secretary v. Zeigler Coal co., 15 FMSHRC 949
(June, 1993), upheld the Secretary's definition of the term
"return air" for the purposes of 30 C.F.R. § 75.507, as air
that has ventilated any working face or place in a coal
producing section. Peabody's argument that under that
standard air does not become "return air" until it has
passed the last working place is accordingly rejected.

1790

Peabody continues to argue, however, that at the time
the instant citations were issued mine operators were not
provided adequate notice of the requirements of the cited
standard to enable them to defend against charges under
that standard. In particular, Peabody argues that the cited
standard does not give adequate notice of its requirements
since the standard does not set forth any definition of
intake or return air and the Secretary's Program Policy
Manual definition of return air as air which has ventilated
any one working face is contrary to what MSHA had previously
recognized to be the accepted meaning of the term in the
industry. Peabody further argues, but without any supporting
evidence, that "a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard"
would have no way of knowing that "return air" is air that has
ventilated any working face or place in a coal producing section.
I note preliminarily that Peabody's claim of inadequate
notice appears to have been presented only in the abstract
and that Peabody did not raise this claim either in its Answer,
in its response to the Prehearing Order, or in opening statement at trial. Indeed, Peabody did not raise the claim that
it did not have adequate notice until it filed its Posthearing
Brief. Even at hearing Peabody failed to present any testimony
that it did not receive adequate notice and produced no
affirmative evidence that a "reasonably prudent person familiar
with the mining industry and the protective purposes of the
standardn would not have recognized the specific requirements
of the standard. See Alabama By-Products corp., 4 FMSHRC 2128
(December 1982); Lanham Coal Co., Inc., 13 FMSHRC 1341
(September, 1991). Under the circumstances, I find that
Peabody has waived any claim to inadequate notice.
In any eventu as each of the Secretaryis expert witnesses
when considering the purpose of the cited standard, i.e.,
preventing air contaminated with methane from passing over
potential ignition sources from non-permissible power connection
points 5 it is clear that ventilating air that has ventilated
working face or place in a coal producing section may be
contaminated with methane and therefore must be considered
09 return airvw within the meaning of the cited standard.
The
Secretary's expert witnesses, Inspectors Lewis Stanley, Lendell
Noffsinger and Cheryl McMacken McGill may be considered to be
00 reasonably prudent persons familiar with the mining industry
and the protective purposes of the standard."
Their recognition
of the requirements of the standard within the framework of the
mining industry and the protective purposes of the standard
confirms the Secretary's interpretation applied herein. See
Lanham coal. Inc., supra; Alabama By-Products, supra. For
this additional reason I reject Peabody's contention.
u

1791

Peabody next argues that the secretary has failed to
prove that return air in fact passed over non-permissible
power points as alleged. Peabody maintains that in this case
the inspectors simply took intake and return air flow readings
and assumed that the difference between the readings represented air which coursed down the neutral entries. Peabody
argues that this assumption suffers from two major defects.
First, it argues that the intake and exhaust air readings
were not taken simultaneously and that no effort was made to
verify that no change in air flow occurred in the interim.
According to Peabody's argument, Inspector McGill simply
assumed that the air flow remained constant based on nothing
occurring in her presence to change air flow even though
changes to mine ventilation could have effected air flow to
the No. 4 Unit. Peabody argues, secondly, that the inspectors
assumed that any air from the face areas which entered the
neutral entries passed over non-permissible power points, even
though the equipment containing such points is located some
distance down the neutral entries and even though there are
return side regulators and vents (for example, for battery
charging stations) through which the "return" air could
re-enter the return entries.
While Peabody speculates, in essence, that the
Secretary's testing methods utilized in this case may have
been less than perfect I find that the tests performed by
the Secretary's agents were clearly sufficient to establish
facts from which it may reasonably be inferred that return air
passed over non-permissible power points and that the violations
therefore were_proven as charged. If indeed Peabody wished to
establish affirmative defenses such as it suggests in its argumentv it was incumbent upon Peabody to present that evidence
hearingo
I agree, however, with PeabodyPs argument that the Secretary has failed to prove that the violations were "significant
and substantial."
A violation is properly designated as significant and substantial if, based on the particular
facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably
serious nature. Cement Division, National Gypsum co.,
3 FMSHRC 822, 825 (April, 1981). In Mathies Coal Co.,
6 FMSHRC 1, 3-4 (January, 1984), the Commission
explained~

In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety

1792

standard; (2) a discrete safety hazard -- that is,
a measure of danger to safety -- contributed to by
the violation, (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria). The
third element of the Mathies formula 'requires that
the Secretary establish a reasonable likelihood that
the hazard contributed to will result in an event
in which there is an injury. (U.s. Steel Mining co.,
6 FMSHRC 1834, 1836 (August, 1984), and also that
in the likelihood of injury be evaluated in terms of
continued normal mining operations (U.s. Steel Mining
Co., Inc., 6 FMSHRC 1573, 1574 (July, 1984}; see also,
Halfway, Inc., 8 FMSHRC,,8, 12 (January, 1986).
Southarn Ohio Coal Co., 13 FMSHRC 912, 916-917 (1991).
As Peabody notes in its Posthearing Brief the Secretary's
witnesses testified that they believed the violations at issue
were "significant and substantiaP' because of the danger of a
methane ignition caused by methane in the 11 return air" coming
into contact with non-permissible power points. However, no
methane readings were taken in the vicinity of the power points
and the levels of methane actually monitored were indeed low -ranging from .03 percent to .2 percent. There is no evidence
that methane levels in the return entries have ever been any\,'<l'here near explosive levels and no evidence of any prior
igni t:.ions
Testimony that 't:.here was a mere wqpossibili ty of
explosiongu
not sufficient:.o Without essential evidence as
-the likelihood of an ignition t.he third element of the
Mathies test is not proven. See U.S. Steel Mining, 6 FMSHRC
at 1834 (August 1 1984) and Secretary v. Zeigler Coal Co.,
supra at page 953o
o

determining an appropriate civil penalty for the
instant citations I find 1 in the absence of evidenceu that
Peabody is chargeable with but lit.tle negligence. Moreover 1
the violation was not proven to be of high gravity. Considering the available evidence under the criteria in Section
llO(i) of the Act I find a civil penalty of $150 for each
violation to be appropriate.

1793

ORDER

Citation No. 3551060 is hereby VACATED and Contest
Docket No. KENT 92-30-R is DISMISSED. Citation Nos. 3417027,
3417031 are AFFIRMED as modified to delete the "significant
and substantial" designations and Peabody Coal company is
hereby directed to pay a civil penalty of $275 for both
violations therein within 30 days of the date of this decision.
Citation Nos. 3417022 and 3551055 are AFFIRMED, as modified
to delete the "significant and substantial" designations and
Peabody Coal Company is hereby directed to pay ci il penalties
of $150 each for the violations therein within 30 days of the
date of this decision.

'

Distribution:
David R. Joest, Esq., Peabody Coal Company,
1951 Barrett Court, P.O. Box 1990, Henderson,
KY 41420-1990 (Certified Mail)
MaryBeth Bernui, Esq., Office of the Solicitor,
u.s. Department of Labor, 2002 Richard Jones Road,
suite B-201, Nashville, TN 37215 (Certified Mail)

1794

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 3 1 1993

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 92-878
A.C. No. 15-17162-03506

v.

No. 4 Mine
COUGAR COAL COMPANY,
INCORPORATED,
Respondent
DECISION APPROVING SETTLEMENT

Before:

Judge Barbour
Statement of the Proceeding

This proceeding concerns proposals for assessment of civil
penalties filed by the Petitioner against the Respondent pursuant
to Section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 820(a), seeking civil penalty assessments for
six alleged violations of certain mandatory safety standards
found in Part 75, Title 30, Code of Federal Regulations. The
Respondent filed a timely answer denying the alleged violations.
The parties now have decided to settle the matter,
and they have filed a motion pursuant to Commission Rule 30;
29 C.F.R. § 2700.30, seeking approval of the proposed settlement.
The citations 7 initial assessments 0 and the proposed settlement
amounts are as
lows~
Citation No.
4020311
4030313
4030314
4030316
4030317
4030318

Date
04/14/92
04/14/92
04/14/93
04/14/93
04/14/92
04/14/92

30 C.F.R.
section
75.1100-3
75.400
75.1100-3
75.1105
75.400
75.1100-3

Assessment
$168
$168
$168
$168
$168
$168

settlement
$ 50
$168
$ 50
$ 50
$168
$ 50

In support of the proposed settlement disposition of this
case, the parties have submitted information pertaining to the
six statutory civil penalty criteria found in section 110(i) of
the Act, included information regarding Respondent's size,
ability to continue in business and history of previous
violations.
In particular, with regard to Citation No. 4030311, which
was issued because the water had been turned off a deluge-type

1795

spray on a conveyor belt drive, the parties note the Respondent
was working on the system when the violation was cited and that
four other systems offering fire protection were operative. In
addition, the mine was wet and no methane was present. The
parties therefore assert the citation should be modified to
reflect the condition was unlikely to result in an accident.
With regard to citation No. 4030313, which was issued for
accumulations of loose ·coal and coal dust at the head drive and
outby, the parties state the Respondent has agreed to pay in full
the proposed civil penalty.
With regard to citation No. 4030314, which was issued
because water would not flow through the deluge-type spray system
for a belt drive, the parties note the water had been turned off
while Respondent worked on the system and that it had been off
for only a short time. In addition, the mine was wet and no
methane was present. The parties, therefore, assert the citation
should be modified to reflect the condition was unlikely to
result in an accident.
With regard to Citation 4030316, which was issued because a
power center was not being ventilated directly into a return
aircourse, the parties note the condition had existed, but one
shift and, more important, under current regulations the
condition would not constitute a violation. The parties
therefore assert the citation should be modified to reflect the
condition was unlikely to cause an accident.
With regard to Citation No. 4030317, which was issued for an
accumulation of float coal dust on a belt conveyor line, the
parties note the Respondent has agreed to pay in full the
proposed
1 penalty.
Finally, with regard to Citation No. 4030318, which was
issued because water would not flow through a deluge-type fire
fighting system or a belt drive, the parties note the Respondent
was working on the system at the time the violation was cited and
that four other fire fighting systems were available at the belt
drive" In addition~ the mine was wet and no methane was present.
Therefore~ the parties assert the citation should be modified to
reflect the condition was unlikely to cause an accident.
CONCLUSION

After review and consideration of the pleadings, arguments,
and submissions in support of the motion to approve the proposed
settlement of this case, I find that approval of the proposed
settlement is warranted in that the proposed settlement
disposition is reasonable and in the public interest. Pursuant
to 30 C.F.R. § 2700.30, the motion IS GRANTED, and the settlement
is APPROVED.

1796

ORDER

Respondent IS ORDERED to pay civil penalties in the
settlement amounts shown above in satisfaction of the violations
in question. Petitioner is ORDERED to modify Citation
Nos. 4030311, 4030314, 4030316, and 4030318 to reflect injury or
illness is unlikely due to the violations. Payment is to be made
to MSHA within thirty (30) days of the date of this proceeding
and upon receipt of payment, this proceeding is DISMISSED.

§Jf?A/rd ££x~

David F. Barbour
Administrative Law Judge
(703) 756-5232

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor,
u.s. Department of Labor, 2002 Richard Jones Road, suite B-201,
Nashville, TN 37215 (Certified Mail)
Mr. Larry Mills, Cougar Coal Company, Inc., Box 301, Warfield, KY
41267 (Certified Mail)
\epy

1797

1798

ADMINISTRATIVE LAW JUDGE ORDERS

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

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

v.
HUSKY COAL COMPANY, INC.,
Respondent

20006

2, 1993
CIVIL PENALTY PROCEEDING

..
...

Docket No. KENT 92-713
A. C. No. 15-16779-03528
Mine No. 3

ORDER TO SUBMIT INFORMATION
In response to the second show cause order the Solicitor has
filed a one line motion to dismiss on the ground that the
operator has paid the "revised" penalty assessment in full. The
Solicitor does not explain what the revised assessment is.
The Solicitor is reminded that under section 110(k) of the
Act Commission judges have the responsibility to approve all
settlements and that this jurisdiction is not defeated merely
because an operator chooses to pay an amount the Solicitor finds
agreeable. The legislative history of the 1977 Mine Safety and
Health Act demonstrates that Congress intended that the
Commission be an active participant in all such matters. The
Solicitor is further reminded that the Commission is not bound by
the Secretary's original assessments because all penalty matters
are before the Commission de novo.
In light of the foregoingi it is Ordered that within 30 days
of the date of this order the Solicitor file a motion explaining
what amount the operator paid and why these amounts satisfy the
requirements of section 110(i) of the Act.

--~=----~. \~\-~

--

__

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Donna E. Sonner, Esq., Office of the Solicitor, U. s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215
Mr. Eddie Holbrooks, Husky Coal Co., Inc., P. 0. Box 3, Ashcamp,
KY 41512
jgl

1799

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUL 8 1993
CIVIL PENALTY PROCEEDINGS

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

:

Docket No. YORK 92-106-M
A.C. No. 30-02790-05512

:

Docket No. YORK 92-107-M
A.C. No. 30-02790-05513

v.
W. J. BOKUS INDUSTRIES, INC.
Respondent

0

0

High Peaks Asphalt
DECISION

Appearances:

Before:

William G. Staton, Esq., u.s. Department of Labor,
Office of the Solicitor, New York, New York,
for Petitioner;
w. J. Bokus, President, w. J. Bokus Industries,
Incorporated, Greenfield Center, New York,
for Respondent.

Judge Weisberger
Statement of the case

In these consolidated cases the Secretary of Labor
{Petitioner) filed petitions for assessment of civil penaltyv
alleging violations by the Operator (Respondent)v of various
mandatory standards set forth in volume 30 of the code of
Federal Regulations. Pursuant to notice, the cases were
scheduled and heard on February 16 and 17, 1993 1 in
Saratoga Springs, New York. At the hearingu Randall Gadway
testified for Petitioner" James E. McGeeu Patrick Durkin 1 Laura
Macev Thomas W. Barssu and William John Bokus testified for
Respondent. Subsequent to the hearingu the parties filed posthearing briefs on June 2lu 1993.
On June 16, l993u the Secretary filed and served Respondent
with a Motion for Leave to supplement Memorandum. Respondent did
not file any reply to this motion and it is granted. The
Secretary 1 s Supplemental Post-Hearing Memorandum was filed
June 30 u 1993. ·

1800

Findings Facts and Discussion
I.

Background

In 1983, William J. Bokus, Respondent's President, purchased
the subject property consisting of 65 acres, "for the sole
purpose of having an asphalt plant there" (Tr. 130). A stream
bisects the property, and a road connects the portion of the
property on the east side of the river, with that located on the
west side.
In 1984, an asphalt plant was erected on the east side of
the river. The asphalt plant is owned by High Peaks Asphalt
("High Peaks") and is leased to Pallette Stone {"Pallette 11 ) .
High Peaks and Pallette are corporate entities separate from W.J.
Bokus Industries. Until 1990, the raw minerals used in the
production of asphalt at the plant were obtained from mines not
located on the subject site.
In October 1991, W. J. Bokus Industries, commenced operating
a mine on the west side of the property mining sand, and gravel.
A screen that is located on the east side of the property
separates gravel from the mine by size. This material is crushed
by a crusher, which is a non-permanent installation, but on the
dates in issue, was located on the east side of the property.
The crusher also crushes material from other mines. Also on the
east side of the property are two stockpiles containing sand,
stone, and "rubble", a by-product of crushed recycled concrete
and asphalt. Some of these materials were previously mined at
the subject mine. Approximately 20 to 50 percent of the material
in these two stockpiles is sold as a final product, and the
balance goes to the asphalt plant on the subject site.
In additionu there are two other stockpiles on the east
side 9 one of which contains piles of old concrete and asphalt
returned by Respondent's customers, and the other contains
processed concrete products. The items in the latter two
stockpiles are sold to customerso
Also on the east side of the property is a garage that
contains electrical servicesr and repair parts for the asphalt
plant. The garage is owned by High Peaks, and is leased to
Pallette. According to Bokus, the garage is used "primarily for
support of the black top (asphalt) plantn (Tr.l33).
(Emphasis Supplied) He said that 0'its primary purpose was for
the repair of trucksn (Tr. 196). However, the garage is also
used as a site for the repair of crusher and screen equipment.
Stored in the garage are some oxygen and acetylene cylinders
owned by Respondent. Also Respondent's employees at times work
in the garage.

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An office staffed by Respondent's employee is also located
on the east side of the property. Truck drivers transporting
material from the subject site weigh their trucks at a weighing
station, and then report the results to Respondent's employee in
the office.

On October 22, 1991 1 MSHA Inspector Randall Gadway inspected
the subject site. He issued a number of orders pursuant to
Section 104(d) (1) of the Federal Mine Safety and Health Act of
1977, ("the Act 11 , ) 1 alleging violative conditions concerning a
loader which loads sand from a stockpile, equipment located in
the garage, and a walkway near the office. Essentially, it
appears to be Respondent's position that the stockpiles and
equipment located in the garage, are not within Petitioner's
jurisdiction.
II. Cylinders in the Garage(Order Nos. 3593041 and 3593042)
Gadway cited a total of seven cylinders 2 in the garage that
were not secured, in violation of 30 C.F.R. § 56.16005. He also
cited the same cylinders as lacking covers in violation of 30
C.F.R. § 56.16006.
In general, oxygen and acetylene cylinders are used in
welding. Cylinders such as those cited are used in the garage by
Respondent's mechanic.
Respondent's other employees as part of
their duties, also work in the garage. Also, repairs to a
crusher and a screen used in the preparation of gravel, are
performed in the garage. Both Respondent and Pallette store
oxygen and acetylene cylinders in the garage.
Section 3(h) (1) of the Act defines a mine asv inter alia
ooclands, structures; facilities! equipmentu machines, toolsp
cooUSed
v or to be used in, or resulting from, the Work of
extracting such minerals from their natural deposits ..• or used
in, or to be used in, the milling of such materials, or the work
of preparing coal or other minerals, . • . . " The legislative
history of the Act 9 as summarized with approval in Donovan Vo
Carolina Stalite Co u 734 F.2d. 1547 {DoCo Ciro 1984), indicates a
clear intent for the Act to be given a broad interpretation.
Nonetheless, it is manifest, based upon the clear language of
Section 3(h) (1), supra, that structures, facilities, machinesu
toolsv or equipment are considered a mine and within the
jurisdiction of Petitioneru only if they are used in, or to be
1Prior to the issuance of these orders, a citation prusuant
to Section 104(d) (1) of the Act, supra, had been issued to
Respondent on October 22, 1991.
24 or 5 of the cylinders contain oxygen, and the rest
contained acetylene.

1802

used in, or resulting from, either the extraction, milling, or
preparation of minerals.
There is no evidence indicating that the specific oxygen and
acetylene cylinders that were cited were used in connection with
the repair or manufacture of tools or equipment specifically used
in the milling or preparation of the minerals mined at the
subject site. Further, even if it is inferred that the cylinders
were so used, and hence were subject to MSHA jurisdiction, there
is insufficient evidence to conclude that Respondent was an
operator vis-a-vis the cited cylinders. In this connection,
Section 3(c) of the Act, defines an operator as an "owner,
lessee, or other person who operates, controls, or supervises a
coal or other mine ..•• 11 Hence, in order for Respondent to be
properly cited for the allegedly violative conditions of the
specific cylinders cited, it must be established that it either
was the owner, or lessee of the cylinders, or in some other
fashion exercised control over,.them. There is no evidence with
regard to the ownership of the cylinders in question. The garage
was used to store cylinders that belong to either Pallette or
Respondent. To further complicate matters, Pallette•s employees
were allowed to use the cylinders owned by Respondent, and
Respondent's employees were allowed to use the cylinders owned by
Pallette.
Since Respondent's employees worked at times in the
garage, and at times used acetylene or oxygen cylinders, it is
possible that they used or would be using these cylinders.
However, due to the lack of evidence, I cannot conclude that it
is more likely than not that the cylinders at issue were either
used by Respondent's employees, or would be used by them in the
ordinary course of Respondent's operation. Hence, Order Nos.
3593041 and 3593042 issued to Respondent concerning violative
cylinders are to be vacatedo
IIIo

Grinding Machines in the Garage (Order No. 3594752)

Gadway also cited a grinding machine located in the garage
that did not have a hoodp in violation of 30 C.F.R. § 56.14115.
In general~ Gadway testified with regard to the hazards relating
to the violative conditiono He also testified that James E.
McGeep an employee of Respondent, told him that he had reported
to William Bokus the lack of a hood, but Bokus did not do
anything about ito
There is no evidence in the record as to the specific use of
the grinder in question, especially as it pertains to the
preparation or milling of stone. Since the grinder was located
in the garage, and Respondent's employees worked there, it is
possible that it might have been used in the milling or preparing
of stone. However, I find that Petitioner failed to adduce
sufficient evidence that would support such a conclusion. In
other words, due to the lack of adequate evidence, I cannot
conclude that it was more likely than not that the grinder was

1803

used in milling or preparing stone or other mine materials. For
these reasons, Order No. 3594752 regarding the grinder is to be
dismissed.
IV.

Metal Stove in the Garage (Order No. 3594756)

Gadway also cited exposed wires connected to a fan that was
mounted on the side of a metal stove in violation of 30 C.F.R. §
56.12030. Gadway testified to the hazards inherent in this
condition, but did not adduce any testimony with regard to the
manner, if any, in which this stove is used in the milling or
preparation of minerals. Thus, I conclude that it has not been
established that the stove was subject to the Act, and
regulations promulgated pursuant to the Act. Accordingly, Order
No. 3594756 is to be dismissed. For the same reasons, the
Section 107(a) order (Order No. 3594756) issued by Gadway for an
alleged imminently dangerous condition regarding the wires
"feeding" the stove, is to be vacated.
V.

Hole in a Walkway (Order No. 3593043)
A.

Violation of 30 C.F.R.

§

56.11012

On October 22, 1991, Gadway indicated that there was a hole
measuring 2 feet by 3 feet in wooden planks located in front of
the scale house (office) entrance. He indicated that the hole
was 3 feet deep. Essentially, he indicated that the hole was
within 3 feet of the walkway traversed by truckers when walking
between the scale where trucks are weighed, and the office where
the weight of the trucks is recorded. Gadway issued a Section
104(d) {1) order alleging a violation of 30 C.F.R. § 56.11012.
As part of its mining operation sand and gravel are loaded
onto its customer 1 s trucks. Thus, I conclude that
the cited area in question is an integral part of Respondentis
mining operation.
Hence, I find that this area is considered
mine property.

by Respondent

Laura Mace, Respondent 1 s employee who works in the office in
question, estimated the size of the hole as 6 inches by 2 1/2
feet. She estimated that it was a distance removed from the
walkway equal to at least her height, which she indicated as 5
feet 4 inches. I accord more weight to Gadwayvs testimony
regarding the dimensions of the hole, inasmuch as it was based
upon actual measurements that he had taken. Also, based upon my
observations of the demeanor of the witnesses, I accord more
weight to the. testimony of Gadway with regard to the distance the
hole was removed from the walkway.
Section 56.11012 supra, provides, that "openings near
travelways through which persons or materials may fall shall be
protected by railings, barriers, or covers. Where it is

1804

impractical to install such protective devices, adequate warning
signals shall be installed." 30 C.F.R. § 56.2 defines a
travelway as " .•• a passage, walk or way regularly used and
designated for persons to go from one place to another." Within
the framework of the above evidence, I find, as cited by Gadway,
that on October 22, 1991, there existed an opening into which a
person might fall that was near a travelway used by truckers
going from the scale to the office. Hence I find that Respondent
herein did violate Section 56.11012, supra.
B.

Unwarrantable Failure

In essence, according to Gadway, he concluded that the
violation herein was as a result of Respondent's unwarrantable
failure, because " ••• by the looks of the board deterioration, it
looked as if it was there for quite a while, •••• " (Tr. 214)
(sic). He also said that the hole was "very obvious" (Tr. 217).
Mace indicated that the hole had been in existence for at least a
week prior to October 22, 1991, when it was cited. Respondent
has not offered any evidence to establish why it had not fixed,
protected, or warned of this violative condition. Considering
these factors, and taking into account the size of the hole, I
conclude that the violation herein was as a result of more than
ordinary negligence, and constituted an unwarrantable failure.
(See, Emery Mining Corporation, 9 FMSHRC 1997, 2004 (December
1987) (construing unwarrantable failure to mean aggravated
conduct constituting more than ordinary negligence}).

c.

Significant and Substantial

According to Gadwayu a truck driver could fall in the hole

by mistakev and suffer a permanently disabling injury such as a

broken leg or hipo Gadway concluded that the violation was
significant and substantialo In this connection, he said that a
violation is significant and substantial if an injury is
reasonably likely to occur, and the injury is of a type that will
result in, at the least, a loss of workdays.
In analyzing whether the facts herein establish that the
violation is significant and substantial, I take note of the
recent decision of the Commission in Southern Ohio Coal Company,
13 FMSHRC 912, (1991), wherein the Commission reiterated the
elements required to establish a significant and substantial
violation as follows:
We also affirm the judge's conclusion that the
violation was of a significant and substantial nature.
A violation is properly designated as significant and
substantial "if, based on the particular facts
surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious

1805

nature." Cement Division, National Gypsum co.,
3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6
FMSHRC 1, 3-4 (January 1984), the Commission explained:
In order to establish that a violation
of a mandatory standard is significant and
substantial under National Gypsum the
Secretary must prove:
(1) the underlying
violation of a mandatory safety standard;
(2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to
by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood
that the injury in question will be of a
reasonably serious nature.
see also Austin Power Co. v. Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria). The
third element of the Mathies formula "requires that the
Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which
there is an injury" (U.S. Steel Mining Co., 6 FMSHRC
1834, 1836 (August 1984)), and also that the likelihood
of injury be evaluated in terms of continued normal
mining operations (U.S. Steel Mining Co., Inc. 6 FMSHRC
1573, 1574 (July 1984); see also Halfway, Inc., a
FMSHRC B, 12 (January 1986).
Southern Ohio, supra at 916-917.
Since Gadwayus opinion that the violation herein was
significant and substantial, was not based upon the proper test
as set forth in Mathies, supra, and u.s. Steel, supra, I have not
accorded it any weight. The only evidence before me on this
issue is Gadway's opinion that a truck driver could fall into the
hole. Clearly this hazard did exist. Howeveru considering the
fact that the hole was not in the travelway 0 but was
approximately three feet away, and considering the lack of any
other evidence on this point~ I conclude that it has not been
established that the hazard contributed to by violation, i.e., a
person falling into the hole or tripping on it, was reasonably
likely to have occurred. Hence, I conclude that the violation
herein was not significant and substantial.
D.

Penalty

Considering the obvious nature of the hazard presented by
the violative condition, the fact that the condition could have
resulted in an injury such as a broken leg or hip, the fact that
the hole had been in existence for at least a week prior to the

1806

time that it was cited, and considering the rema1n1ng factors set
forth in Section 110(i) of the Act, I conclude that a penalty of
$450 is appropriate for this violation.
VI.

Loader Loading from Stockpiles
3594754)

(Order Nos. 3594753 and

On October 22, 1991, a loader was being used by Respondent's
employee, Tom Barss, to remove sand from a stock pile on the east
side of Respondent's property, and load it onto customers'
trucks. The stockpile contained sand and other minerals mined
from the west side of the property in question.
Gadway asked Barss if the horn and back-up alarm were
functioning, and he indicated that they were not. Gadway did not
observe them to be functioning. Gadway issued an order alleging
a violation of 30 C.P.R. § 56.14132, which, as pertinent,
provides that horns or other audible warning devices on selfpropelled mobile equipment nshall be maintained in functional
condition."
Respondent argues that MSHA does not have jurisdiction over
stockpiles. In this connection, Respondent refers to a statement
made by an MSHA engineer, John Montgomery, who was one of the
speakers at an MSHA seminar in Albany, New York, in the fall of
1992. James McGee, Respondent's employee who was at the seminar,
testified that Montgomery, in response to a question from the
audience after he had made his presentation on electrical
matters, stated that MSHA jurisdiction regarding gravel
operations did not extend to stockpiles. Clearly this statement
cannot be considered to be a statement of MSHA policy, but is
rather a statement of an individual not involved with policy.
(Seeu Lancashire Coal C0. 0 13 FMSHRC 875 0 888 8 (199l)o
I find that the use of the loader in question, loading mined
stocks onto customer's trucks, was an integral part of
Respondent's mining operation 9 and hence the loader was within
MSHA jurisdiction. Since the horn and backup alarm were not
working 0 I find Respondent violated Section 56ol4132, supra.
Gadway opined that as a consequence of this violation, an
injury was reasonably likely to have occurred, since truck
drivers in the area could have been hit by the loader when it
backed up. Should this have occurred, a fatality could have
resulted.
Certainly, a person could have been hit and injured by the
loader when it backed up. Gadway indicated that the operator of
the loader would not have known that a person was behind the
loader. However, the record does not indicate the specific
position of the loader operator on the loader, whether the loader
had a rear view mirror, whether the operator would have had good

1807

visibility of the area behind the loader, and whether there were
any blind spots when the operator looked to the rear of the
loader. Within the framework of this record, I conclude that it
has not been established that the hazard contributed to by the
violation herein i.e., the possibility of a person being hit by
the loader, was reasonably likely to have occurred. I thus
conclude that it has not been established that the violation
herein was significant and substantial.
According to Gadway, Barss indicated to him that the horn
and alarm were not functioning, and said that the loader in
question had been brought onto the subject property a week prior
to the date the Order was issued, "in this condition". (Tr.
231). Gadway testified that Barss told him that Bokus operated
the loader, and "he should have known" (Tr. 231). Barss, who
testified later on at the hearing, did not rebut this testimony,
nor did Bokus testify in rebuttal to rebut this testimony.
Hence, since a loader is operated both forward and reverse, and
since Respondent's employees,operated the loader for a week
knowing the horn or backup alarm did not function, I conclude
that the violation herein was as a result of more than ordinary
negligence, and constitued an unwarrantable failure.
(See,
Emery, supra).
Taking into account the statutory factors in Section llO(i),
of the Act, and especially noting the degree of Respondent's
negligence as discussed above, I conclude that a penalty of $500
is appropriate.
VII.

Order No. 3594754

On October 22u 199lu Barss informed Gadway that the parking
brakes on the loader were not working.
Gadway had Barss test
theme and he concluded that the parking brakes were not working.
Gadway issued a Section 104(d) (1) order alleging a violation of
30 C.P.R. § 56.14101 which provides, as pertinent, that
~ • • • parking brakes shall be capable of holding the equipment with
its typical load on the maximum grade it travels." Based on the
testimony before meQ I conclude that this standard has been
violated as alleged by Gadway.
0

Gadway indicated that there was no engine shut-offu and thus
an injuryu as a consequence of the violation hereinu was
reasonably likely to have occurred. He said that the area where
the loader loads the trucks is not completely level, but that
there are ~small ups and downs 19 • (Tr. 240) He said that there
are grades where the loader could roll to the stockpile. There
is no evidence with regard to the specific terrain in the
immediate area where the loader would have stopped, and remained
stopped in its normal operation. Within this framework, I
conclude that it has not been established that the violation was
significant and substantial.

1808

When Barss was asked by Gadway if the alarm horn and parking
brake were functioning, Barss indicated, in essence, that the
loader had been brought on.the property a week ago in this
condition, and everybody had operated it, including Bokus. For
the reasons set forth above, VI, infra, I conclude that the
violation herein resulted from more than ordinary negligence and
constituted an unwarrantable failure.
Taking into account the factors set forth in Section 110(i)
of the Act, and considering the degree of Respondent's
negligence, I find that a penalty of $500 is appropriate.
VIII.

Citation No. 3594758

Gadway indicated that on October 22, 1991, he had explained
to Barss that he was issuing an Order requiring that the loader
not be used until repaired, and that MSHA should be notified by
the Operator (Respondent) that repairs have been done before the
Operator would be allowed to .use it.
Subsequent to the issuance of the 104(d) (1} Orders discussed
above, VI, and VII, infra, Barss ordered parts to repair the
parking brakes, and replaced the fuses for the horn and back-up
alarm on October 22. However, MSHA was not informed.
on October 23, 1991, at approximately 9:00a.m., Gadway
returned to the subject property. He observed the same loader
that had been cited the day before, loading crushed stone from
the stockpile, and transporting it to the asphalt bin. According
to Gadway, he left the premises after Bokus had told him that
MSHA did not have jurisdiction over the asphalt plant, and the
stockpiles" Gadway subsequently returned at approximately
11~40 a.mo
At that time~ he asked Bokus how many trucks had been
loaded"
Gadway indica·ted that Bokus informed him that three
trucks had been loaded with the loader.
Maceu who works in the office, indicated that she heard all
of Bokusv conversation on October 23 with Gadway, and that Bokus
did not say that
loaded three trucks with the loader. In
rebuttal, Gadway explained that upon his arrival at the site at
approximately 11:40 a.m., he spoke to Bokus who informed him that
he had loaded trucks with the loader. Gadway said that this
conversation took place at the right side of the garage, which is
not within the line of sight of the office where Mace works.
Bokus did not contradict this testimony. I therefore accept it.
On October 23, 1991, Gadway issued a Citation alleging a
violation of Section 104(d) (l)i of the Act which, as pertinent,
provides that once an Order has been issued under section
104(d) (1), persons in the affected area shall be withdrawn, and
be prohibited from entering such area until an authorized
representative of the Secretary determines that such violation

1809

has been abated.
Within the framework of the above discussed evidence of
record, I find that the loader in issue was subject to two
Section 104(d) (1) Orders, and yet Respondent operated it prior to
a determination by Gadway that the violative conditions had been
abated. Accordingly, I find that the Citation issued by Gadway
was properly issued and is to be affirmed.
The record indicates that Respondent was made aware that the
loader should not have been operated unti.l it had been repaired,
and MSHA was notified of that fact. Respondent's Lelief that
MSHA had no jurisdiction over the stockpile is insufficient to
mitigate its non-compliance with the Orders at issue. The proper
course was to have complied with the Orders, and then to have
filed a Notice of Contest to challenge the issuance of the
Orders. Thus, the violation herein resulted from a high degree
of Respondent's negligence. I find that a penalty of $1,000 is
appropriate for this violatioff.
ORDER
It is ORDERED that: (1) The following Orders are to be
vacated and dismissed: Orders No. 3593041 1 3593042, 3594752 and
3594756; (2) The following Orders are to be amended to reflect
the fact that the violations alleged therein are not significant
and substantial: Orders No. 3593043, 3594753, and 3594754; and,
(3) Respondent shall pay, within 30 days of this decision, a
civil penalty of $2,450 for the v~ons ~

~vram ~isberger

Administrative Law Judge

Distribution~

William G. Staton 7 Esq.u Office of the Solicitor, Ue s.
Department of Laboru 201 Varick Street, New York, NY 10014
(Certified Mail)
Mro W. J. Bokusu Presidentu W. J. Bokus Industries, Inc.u 30 Mill
Roadu Greenfield Center, NY 12833 (Certified Mail)

1810