SEP1'EMBER 1993

COMMISSION DECISIONS AND ORDERS

09-08-93
09-13-93
09-13-93
09-17-93
09-22-93
09-24-93
09-27-93

Texas Gravel, Inc.
Pittsburg & Midway Coal Mining Co.
Sec. Labor on behalf of Cletis Wamsley
and Robert Lewis v. Mutual Mining
Dow Sand and Gravel
Aluminum Company of America
American Mine Services, Inc.
Energy West Mining Company

CENT 93-104-M
CENT 92-142

Pg. 1811
Pg. 1813

WEVA 93-375-D
YORK 93-14-M
CENT 92-362-M
WEST 91-563
WEST 91-251

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1836

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1966
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ADMINISTRATIVE LAW JUDGE DECISIONS

09-03-93
09-07-93
09-08-93
09-09-93
09-10-93
09-10-93
09-10-93
09-13-93
09-15-93
09-15-93
09-15-93
09-16-93
09-16-93
09-17-93
09-20-93
09-20-93
09-23-93
09-23-93
09-23-93
09-24-93
09-24-93
09-27-93
09-27-93
09-27-93
09-29-93
09-29-93
09-29-93
09-30-93

Sec. Labor on behalf of Dennis R. Burress
v. Garden creek Pocahontas co.,·etc.
VA
93-52-D
SE
92-493-M
Abyss Sand & Gravel, Inc.
Davis Trucking Company
LAKE 92-421-M
KENT 93-662-D
Ricky Darrell Ealy v. R B Mining Company
s & H Mining, Incorporated
SE
92-455
SE
Jim Walter Resources, Inc.
93-335-R
WEVA 91-1964
Consolidation Coal Company
Bell County Coal Corporation
KENT 93-376
KENT 93-227
Ash Trucking Company, Inc.
KENT 92-577
Bobby Lee Price emp. by Crockett Coal
KENT 93-295
Peabody Coal Company
Consolidation Coal Company
WEVA 92-1012
Sec. Labor on behalf of Jerry Lee Dotson
v. Lad Mining Inc., etc.
SE
92-181-D
UMWA Local 5922 v. Bear Run Coal co., etc. WEVA 93-358-C
CENT 92-128-M
Americold Corporation
A-1 Grit Company
WEST 92-527-M
Drillex Incorporated
SE
92-130-M
Pyramid Mining Incorporated
KENT 93-184
Moline Consumers Company
LAKE 92-368-M
Calmat of Central California
WEST 93-362-M
Bobby Johnson v. Bohica Inc./Shiloh Mining WEVA 93-105-D
Lonnie D. Ross and Charles E. Gilbert
v. Shamrock Coal Company, Inc.
KENT 91-76-D
Wyoming Fuel Company
WEST 92-340
Kanitz Contracting, Inc.
WEST 92-607-M
Melvin Fultz v. Harriman Coal Corporation PENN 93-198-D
Sec. Labor on behalf of Donald B. Carson
v, Jim Walter Resources, Inc.
SE
93-109-D
Barrett Paving Materials, Inc.
YORK 92-10-RM
United Energy Services, Inc.
WEVA 92-916

Pg. 1992
Pg. 1999
Pg. 2022

SEPTEMBER 1993
Review was granted in the following cases during the month of September:
Secretary of Labor, MSHA v. Texas Gravel, Inc., Docket No. CENT 93-104-M.
(Chief Judge Merlin, Default Decision of August 9, 1993- unpublished).
Secretary of Labor on behalf of Cletis Wamsley and Robert Lewis v. Mutual
Mining, Inc., Docket Nos. WEVA 93-375-D, WEVA 93-376-D.
(Judge Amchan, Order
of Temporary Reinstatement of August 16, 1993).
Secretary of Labor, MSHA v. Dolese Brothers Company, Docket No. CENT
(Judge Fauver, August 9, 1993).

92-110-~.

Energy West Mining Company v. Secretary of Labor, MSHA, Docket Nos.
WEST 92-819-R, WEST 93-168.
(Judge Lasher, August 10, 1993)
Secretary of Labor, MSHA v. Dow Sand & Gravel, Docket Nos. YORK 93-14-M, etc.
(Chief Judge Merlin, Default Decisions of August 9, 1993- unpublished).
Secretary of Labor, MSHA v. Peabody Coal Company, Docket No. LAKE 93-23.
(Judge Melick, August 12, 1993).
Secretary of Labor, MSHA v. Buffalo Crushed Stone, Inc., Docket Nos.
YORK 92-117-M, YORK 92-128-M.
(Judge Weisberger, August 11, 1993).
Secretary of Labor, MSHA v. Steele Branch Mining, Docket No. WEVA 92-953.
(Judge Koutras, August 13, 1993).
Peabody Coal Company v. Secretary of Labor, MSHA, Docket No. KENT 91-179-R.
(Judge Melick 1 August 16, 1993).s
Secretary of Labor, MSHA v. Cyprus Plateau Mining Corporation, Docket No. WEST
92-371-R, WEST 92-485.
(Judge Morris, August 24, 1993).
Review was denied in the following case during the month of September:
Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No.
SE 92-246-M.
(Judge Barbour, August 19, 1993).

COMMISSION DECISIONS AND ORDERS

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

September 8. 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 93-104-M

v.

TEXAS GRAVEL, INC.
BEFORE:

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

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 August 9,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
Texas Gravel, Inc. ("Texas Gravel") for failing to answer the proposal for
assessment of civil penalties filed by the Secretary of Labor or the judge's
May 19, 1993, Order to Show Cause. 1 The judge assessed civil penalties in
the sum of $2,100. For the reasons that follow, we vacate the default order
and remand this case for further proceedings.
On August 30, 1993, the Commission received from Toribio Palacios, Texas
Gravel's counsel, a motion to set aside the default order. Mr. Palacios
explained that Texas Gravel had inadvertently failed to file an answer and,
because negotiations with the Secretary's Office of the Solicitor had already
begun, the Secretary was on notice .that Texas Gravel wanted a hearing in this
case.
The judge's jurisdiction over this case terminated when his decision was
issued on August 9, 1993. Commission Procedural Rule 69(b), 58 Fed. Reg.
12171 (March 3, 1993), to be codified at 29 C.F.R. § 2700.69(b) (1993). 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 Texas Gravel's motion to be a timely filed Petition for

1

As noted by the judge in his Order of Default, the file contains a signed
return receipt card for the Order to Show Cause.

1811

Discretionary Review, which we grant. See, ~. Middle States Resources,
10 FMSHRC 1130 (September 1988). On the basis of the present record, we
are unable to evaluate the merits of Texas Gravel's position.
In the interest
of justice, we remand this matter to the judge, who shall determine whether
default is warranted.
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

/

/J
/

c;;:_-L ~~~c/L A~

~

~

Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner

Distribution

Toribio Palacios, Esq.
Garcia, Quintanilla & Palacios
5528 N. lOtn Street
McAllen, TX 78504
B. Carpentier,
Office of the Solicitor
U. S. Department of Labor
525 Griffin St., Suite 501
Dallas, TX 75202
Chief Admini.strative Law Judge Paul Merlin
Federal Hine Safety & Health RevieH Commission
1730 K Street, N.W., Suite 600
Washington, D.C.
20006
1812

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

20006

September 13, 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 92-142

v.
PITTSBURG AND MIDWAY COAL
MINING COMPANY

BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners

BY THE COMMISSION:
In this civil penalty proceeding ar~s~ng under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"), the
Secretary of Labor and Pittsburg and Midway Coal Mining Company ("P&M") have
filed with the Commission a joint motion to approve settlement of this case.
For the following reasons, the parties' settlement motion is granted, and this
matter is dismissed.
On June 16, 1993, we granted P&M's petition for discretionary review of
a decision of Administrative Law Judge Michael A. Lasher, Jr. In their
motion, filed August 16, 1993, the parties explain that P&M stipulated, before
the judge, that it violated 30 C.F.R. § 75.302-4 by allowing exhaust air to
recirculate into the intake entry through a three-inch diameter ventilation
tube, but that it had contested the S&S designation. The judge concluded that
the violation was S&S. 15 FMSHRC 1039, 1041-46 (May 1993) (ALJ)(published
June 1993). The only issue raised by P&M on review is whether substantial
evidence supports the judge's S&S finding. After further evaluation by the
Secretary, he now agrees with P&M that substantial evidence of record does not
support the judge's finding that P&M's violation of section 75.302-4 was S&S.
The parties ask the Commission to grant their motion, vacate the S&S finding,
reduce the civil penalty to $50, and dismiss this proceeding.
Oversight of proposed settlements of contested cases is among the
Commission's adjudicative responsibilities under the Mine Act (30 U.S.C.
§ 820(k)) and is, in general, committed to the Commission's sound discretion.
See,~. Pontiki Coal Corp., 8 FMSHRC 668, 674-75 (May 1986); Medusa Cement
Co., 10 FMSHRC 1913, 1914 (October 1990). We conclude that adequate reasons
exist to approve the parties' settlement in this case. No reason appears on
this record to warrant disapproval of the settlement.

1813

Therefore, upon full consideration of the motion, the settlement is
approved. Citation No. 3244895 is modified to delete the significant and
substantial designation and P&M is ordered to pay a civil penalty of $50
within 30 days of the date of this decision. Our direction for review is also
vacated and this proceeding is dismissed.

~~~.___/c-/~~~~L
Richard V. Backley, Commissioner

Joyce A. Doyle, Commissio

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I

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)
·(,
r 1 . G .l .(l..,_A_N .; "-~ -\i <.--,'-'
L.vClair Nelson, Commissioner
I

1814

'

--

~

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
, VA 22203
John W. Paul, Esq.
Pittsburg & Midway Coal Hining Co.
6400 S. Fiddler's Green Circle
' co 80111
Administrative Law Judge Michael A. Lasher, Jr.
Federal l1ine Safety & Health Review Commission
1244 Speer Boulevard, Suite 280
Denver, Colorado 80204

1815

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

20006

September 13, 1993

SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION (MSHA),
on behalf of CLETIS R. WAMSLEY
and ROBERT A. LEWIS, APPLICANT
TEMPORARY REINSTATEMENT
PROCEEDING

v.
DOCKET NO.

WEVA 93-375-D

DOCKET NO.

WEVA 93 376-D

MUTUAL MINING, INC. , RESPONDENT

BEFORE:

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

BY THE COMMISSION:
In this discrimination proceeding, ar1s1ng under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §801 et seq. (1988)("Mine Act"), respondent
Hutual Mining, Inc., has filed a petition for review of Administrative Law Judge
Arthur Amchan' s August 16, 1993, Order of Temporary Reinstatement issued pursuant
to Commission Procedural Rule 45, 58 F.R. 12158 (March 3,1993), to be codified
at 29 C.F.R. §2700.45 (1993). We grant respondent's petition for review and, for
the reasons that follow, affirm the judge's order requiring the temporary
reinstatement of Cletis Warns
and Robert Lewis.
Complainants Warns
~nd Lewis were miners employed by Mutual Hining, Inc.
and active union safety committeemen until their layoff on December 21, 1992.
On December 22,
filed discrimination complaints with the Secretary of
Labor's Mine Safe
and Health Administration ("MSHA").
Following an
investigation, the Secretary determined that the discrimination complaints filed
by wamsley and Lewis were not frivolous.
On July 6, 1993, the Secretary filed
an application for temporary reinstatement of the two miners.
On August 5, an
evidentiary hearing on the application was held. On August 16, the j
issued
his decision in which he concluded that the complaints were not frivolous.
The Secretary alleges that Wamsley and Lewis were laid off because of their
activities as union safety committeemen, including their participation in fil
a complaint, pursuant to section l03(g) of the Mine Act, 30 U.S.C. § 803(g), and
their involvement in a "safety run." Subsequently, MSHA responded to the section
103(g) complaint and issued 20 citations and orders. On the day of the MSHA
inspection, respondent laid off Warns
and Lewis, along with ten other miners.
Respondent contends that the miners were laid off for economic reasons and that
the layoff had been planned long before the safety complaints and the MSHA
inspection.

1816

As the Commission has previously stated, "The scope of a temporary
reinstatement hearing is narrow, being limited to a determination by the judge
as to whether a miner's discrimination complaint is frivolously brought."
Secretary of Labor o.b.o. Price and Vacha v. Jim walter Resources, Inc., 9 FMSHRC
1305, 1306 (August 1987), aff'd, Jim walter Resources. Inc. v. FMSHRC, 920 F.2d
738 (11th Cir. 1990).
The judge held an evidentiary hearing and considered the testimony of five
witnesses in addition to the two complainants. He determined:
The Secretary of Labor has the burden of
proving that the complaints were not frivolous ....
I ... find that the record as a whole establishes
that the complaints were not frivolous.
Sl

op. at 1-2.

The only issue before us is whether wamsley's and Lewis' discrimination
complaints were frivolously brought: After careful review of the evidence and
, we conclude that the judge • s determination that the complaints are not
frivolous is supported by the record and is consistent with applicable law. we
intimate no view as to the ultimate merits of this case.
Respondent has also moved the Commission to stay the order of the judge.
In support of its motion, respondent asserts that reinstatement of the
complainants would contravene its collective bargaining agreement and that the
complainants are currently employed. To the extent that respondent sought relief
pending our consideration of the instant matter, such relief was considered and
denied.
To the extent that respondent seeks a stay of the temporary
reinstatement order pending a final determination of whether a violation of
section 105 (c)(l) of the Mine Act has occurred, its motion is denied.
Accordingly, the judge's order
Cletis wamsley and Robert Lewis is affirmed.

the temporary reinstatement of

F/1-~~LG~,
Richard V. Backley, Cornrnissioner

, Commissioner

L.

1817

9

Distribution

W. Jef
Scott, !~sq.
Mutual Mining l.nc.
P.O. Box 608
Grayson, Kentucky 41143
Tana M. Addc, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Jud~e Arthur Amchan
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1818

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

20006

September 17, 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. YORK 93-14-M
YORK 93-19-M
YORK 93-20-M
YORK 93-28-M

v.

DOW SAND & GRAVEL
BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners

BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On August 9,
1993, Chief Administrative Law Judge Paul Merlin issued four Orders of Default
to Dow Sand & Gravel ("DS&G") for failing to answer the civil penalty
proposals filed by the Secretary of Labor ("Secretary") and the judge's April
19, 1993 Orders to Show Gause. The judge assessed civil penalties of $1,490
as proposed by the Secretary. For the reasons that follow, we vacate the
default orders and remand the cases for further proceedings.
On September 7, 1993, E. Milton Dow filed a letter with the Commission
requesting that the default orders be set aside. Dow submits that DS&G
responded to the show cause orders. Dow also attached a copy of an undated
motion by the Secretary for approval of settlement in Dow Sand & Gravel,
Docket No. [92]-161-M, in which the Secretary has apparently agreed to a
substantial reduction of civil penalties because of DS&G's operating losses
and improved attitude toward compliance.
The judge's jurisdiction over these cases terminated when his decision
was issued on August 9, 1993. Commission Procedural Rule 69(b), 58 Fed. Reg.
12171 (March 3, 1993), to be codified at 29 C.F.R. § 2700.69(b)(l993). Under
the Mine Act and the Commission's procedural rules, relief from a judge's
decision may be sought by
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 DS&G's request 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 DS&G's position. In the interest of
justice, we remand these matters to the judge, who shall determine whether
default is warranted.
Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).

1819

For the reasons set forth above we vacate the judge's default orders
and remand these matters for further ~roceedings.

Arlene Holen, Chairman

-~~.~
L. Clair Nelson, Commissioner

Distribution

Milton IJow
Dow Sand & Gravel
RR l, Box 181
Ossipee, New Hampsili re

03864

David L. Baskin, Esq.
Office of the Solicitor
U.S. Department of Labor
One Congress St., llth Floor
P.O. Box 8396
Boston, MA 02114
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1820

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

22, 1993

ALUMINUM COMPANY OF AMERICA

v.

Docket No. CENT 92-362-RM

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

Holen, Chairman; Backley, Doyle and Nelson, Commissioners

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 issue
is whether an accident control withdrawal order ("control order") was properly
issued to Aluminum Company of America ("Alcoa") pursuant to section 103(k) of
the Mine Act by an inspector of the Department of Labor's Mine Safety and
Health Administration ("MSHA") . 1 The inspector issued the control order to
Alcoa after he determined that an area in Alcoa's Point Comfort Alumina Plant
had been contaminated by mercury. Administrative Law Judge Roy J. Maurer
vacated the control order after determining that the Secretary failed to
establish that an "accident," as that term is defined in the Mine Act, had
occurred. 14 FMSHRC 1721, 1723 (October 1992)(ALJ). For the reasons set
forth below, we affirm the judge's decision.

Section 103(k) of the Mine Act states:
In the event of any accident occurring in a coal
or other mine, an authorized representative of the
Secretary, when present, may issue such orders as he
deems appropriate to insure the safety of any person in
the coal or other mine, and the operator of suet. mine
shall obtain the approval of such representative, in
consultation with appropriate State representatives,
when feasible, of any plan to recover any person in such
mine or to recover the coal or other mine or return
affected areas of such mine to normal.
30 u.s.c. § 813(k).

1821

I.
Factual and Procedural Background

Alcoa operates an alumina hydrate production facility in Point Comfort,
Texas. On August 5, 1992, MSHA Inspector Ralph Rodriguez inspected the plant
in response to a miner's complaint filed under section 103(g) of the Mine
Act, 2 which alleged that workers were being exposed to mercury and other
hazardous substances. George Weems, an MSHA industrial hygienist, conducted a
health survey of the plant on August 25-26, 1992. As part of his survey,
Weems inspected and sampled an area known as R-300, where, according to Alcoa
and miner representatives, mercury had previously been used, most probably in
the production of chlorine between approximately 1965 and 1979. Tr. 94, 200,
206. Apparently, mercury has not been used at the site since that time.
Rodriguez and Weems observed beads of mercury, each measuring two to
three millimeters in size, at several locations inside and outside the R-300
building, including in cracks in foundations that had served as pump mounts
and along the exterior wall of the building. Tr. 148-49. MSHA also sampled
for and detected mercury vapor in several places in the R-300 area including
in the pump foundations. No mercury vapor was detected in the breathing zone
or higher than knee level. Soil samples were also taken in the area adjacent
to the R-300 building. Inspector Rodriguez cited Alcoa, alleging a violation
of 30 C.F.R. § 56.20011 for failure to barricade or post signs at the R-300
building. 3
Rodriguez returned on September 4, 1992, and determined that Alcoa had
abated the previous citation by posting signs and barricades at the building.
He also observed six people working in an area adjacent to the R-300 building.
These workers, who were Alcoa's environmental consultants, were using a
backhoe to remove a manhole cover from an underground pipe. They were not
2

Section 103(g) provides, in pertinent part:
Whenever a representative of the miners ... has
reasonable grounds to believe that a violation of this
Act or a mandatory health or safety standard exists ...
such ... representative shall have a right to obtain an
immediate inspection by giving notice to the Secretary
or his authorized representative of such violation ....

30 u.s.c. § 813(g).
3

Section 56.20011 provides:
Areas where health or safety hazards exist that
are not immediately obvious to employees shall be
barricaded, or warning signs shall be posted at all
approaches.
Warning signs shall be readily visible,
legible, and display the nature of the hazard and any
protective action required.

1822

wearing protective equipment. Consequently, Rodriguez issued Alcoa a citation
alleging a violation of 30 C.F.R. § 56.15006 for failure to wear protective
equipment when encountering chemical hazards. 4
MSHA issued a report on its health survey of Point Comfort on September
9. Gov. Ex. 7. The report concluded that mercury vapor and metallic (liquid)
mercury were present at R-300, but that, according to MSHA's readings, mercury
vapor was not present at breathing zone heights. The report also concluded
that the ground west of the R-300 building was heavily contaminated with
mercury. The report recommended that people entering the area wear protective
clothing and equipment and that Environmental Protection Agency ("EPA")
procedures be followed in disposing of or cleaning contaminated clothing or
equipment.
On September 11, 1992, MSHA Supervisory Inspector Doyle Fink issued the
subject control order, which stated:
Mercury contamination has occurred at all the R-300
facility and area approximately 70 feet west extending
to the paved roadway parallel to the R-300 facility to
be covered by this 103(k) order. In order to protect
the health and safety, all persons are prohibited from
entering this area, except with the approval of the
District Manager or his representative pending further
investigation of the extent of the hazard.
Gov. Ex. 6.
Alcoa filed a notice of contest of the control order and an expedited
hearing was held before Judge Maurer on October 6, 1992. At the conclusion of
the Secretary's case, the judge entered a decision from the bench granting
Alcoa's motion to dismiss. The judge subsequently issued a written decision
confirming his bench decision. While the judge credited the testimony of the
Secretary's witnesses, including expert testimony as to the hazardous nature
of mercury (14 FMSHRC at 1721.-22), he held that the Mine Act gives the
Secretary the authority to issue a section 103(k) order only if there has been
an "accident," as that term is defined by section 3(k) of the Mine Act.

4

Section 56.15006 provides:
Special
protective
equipment
and
special
protective clothing shall be provided, maintained in a
sanitary and reliable condition and used whenever
hazards of process or environment, chemical hazards,
radiological hazards, or mechanical irritants are
encountered in a manner capable of causing injury or
impairment.

1823

14 FMSHRC at 1722. 5 The judge concluded that the Secretary did not prove
that the mercury contamination detected in the R-300 area was the result of an
accident and, accordingly, he vacated the section 103(k) order.
14 FMSHRC at
1723. He noted that the Secretary could have protected the safety and health
of miners through use of the enforcement mechanisms contained in section 104
of the Mine Act, 30 U.S.C. § 814. Id.
The Commission granted the Secretary's Petition for Discretionary Review
of the judge's decision.

II.
Disposition of the Issues
The Secretary argues that the judge's interpretation of the definition
of the term "accident" in section 3(k) of the Act is contrary to its plain
language and the Act's protective purposes. The Secretary maintains that an
unplanned and uncontrolled release of mercury, including a gradual release
that creates a long-term hazard, is an accident under the Mine Act. The
Secretary also maintains that the judge erred in vacating the order on the
basis that MSHA could have corrected the hazard using the enforcement
mechanisms of section 104 of the Act·.
Alcoa argues that the judge correctly concluded that the order was
defective because no accident had occurred.
It contends that no one was
injured as a result of the alleged mercury contamination and that the
contamination was otherwise outside the scope of accident in section 3(k).
In
addition, the Secretary failed to present any evidence that there had been a
sudden spill of mercury or an increase in the level of mercury before the
issuance of the order. Alcoa argues that, in the absence of an accident, the
Secretary is not authorized to issue orders to take control of an area to
prevent future injuries.
We agree with the judge that an accident is "a necessary precondition to
the issuance of a section 103(k) order." 14 FMSHRC at 1722. The judge
dismissed the case because he found that the Secretary did not prove that an
accident had occurred in the R-300 area. Thus, the primary issue in this case
is evidentiary in nature: whether the Secretary established that the mercury
contamination was the result of an accident.
The Secretary maintains that the mercury release qualifies as an
accident as that term is defined in section 3(k) of the Mine Act. The
Secretary correctly asserts that "a mercury release that involves 'injury to,
or death of, any person' is an accident" under section 3(k) of the Act.

5

Section 3(k) provides:
"accident"
includes a mine explosion,
mine
ignition, mine fire, or mine inundation, or injury to,
or death of, any person ....

30 u.s.c. § 802(k).

1824

S. Br. 8. The Secretary further argues that the "fact that the extent of
injury to miners cannot yet be determined does not mean that the kind of
exposure that can produce injury has not already occurred." S. Reply Br. 5.
He argues that it would be inconsistent with the protective purpose of section
103(k) to hold that "MSHA could not issue a Section 103(k) order protecting
miners from continued exposure until exposure had manifested itself in
diagnosable injury."
In the evidentiary context of this case, the
Secretary's argument is misplaced.
The Secretary established that mercury vapor was present at ground
level, but not in a miner's normal breathing zone. The Secretary also
established that approximately 10 to 20 small beads of mercury were found in
cracks around the foundations and motor mounts. Tr. 174-75, 206. The
Secretary did not, however, offer any evidence that miners had been exposed to
mercury vapor in violation of the applicable threshold limit value ("TLV") 6
or that miners had come in contact with the liquid mercury. The Secretary's
position that an injury had occurred, but that the extent of the injury had
not yet been determined, has no foundation in the record. The Secretary
established neither overexposure to mercury vapor or harmful contact with
liquid mercury, nor resulting il,lness or injury. 7
The Secretary points out that the definition of accident in section 3(k)
of the Mine Act "includes a mine explosion, mine ignition, mine fire or mine
inundation" even if no injury results. 8 S. Br. 7-8. The Secretary does not
contend that the events specified in the definition encompass this mercury
contamination. Rather, the Secretary argues that the word "includes" in the
definition is a term of enlargement. S. Br. 9, n.5. He maintains that an
event not specifically listed in the definition falls within the definition of
"accident" if it is "similar in nature or present[s] a similar potential for
6

30 C.F.R. § 56.5001 provides that exposure to airborne contaminants (such
as mercury vapor) shall not exceed the TLV' s established by the American
Conference of Governmental Industrial Hygienists.
7

Supervisory Inspector Fink testified that the order was issued because
of "perceived concern[s] about the mercury ... to make sure that the employees
working there were first in priority .... " Tr. 93. He stated that the section
103(k) order was issued to force Alcoa to sample the area, post and barricade it,
and make sure that employees entering the area wore protective equipment. Tr.
127. He issued the order to keep "everybody out until we've got time to look at
this thing and decide where we're going .... " Tr. 134-35, 137. Margie Zalesak,
a senior l'1SHA industrial hygienist, stated that the control order was issued
because "the [environmental] contractor did not appear ... knowledgeable in the
handling of mercury" to make sure that "anyone going into the area would be
protected .... " Tr. 204.
8

"Inundation" is defined as an "inrush of water on a large scale which
floods the entire mine or a large section of the workings." Bureau of Mines,
U.S. Department of the Interior, Die tionary of. Mining. Mineral, and Related Terms
587 (1968). "Inundation," as used in section 3(k) of the Mine Act, may include
the inrush of any liquid or gas. See 30 C.F.R. § 50.2(h)(4).

1825

~nJury or death as a mine explosion, ignition, fire, or inundation."
S. Reply
Br. 3-4. In general, the Secretary is correct. Whether a specific event is
similar in nature must, however, be determined on a case-by-case basis. 9

The Secretary contends that the mercury contamination at Alcoa's
facility was similar in nature to the events specifically listed in the
definition. The Secretary presented no evidence, however, that the mercury
contamination involved in this case was similar in nature or presented a
potential for injury similar to that of a mine explosion, ignition, fire or
inundation. 10 Mine explosions, ignitions, fires and inundations typically
are sudden events that pose an immediate hazard to miners and require
emergency action. If there is a sudden spill of mercury or other hazardous
chemical in an active area of a mine, it may be reasonable for the Secretary
to conclude that an accident has occurred. However, the Secretary did not
establish such an occurrence at Point Comfort.
The Secretary has issued regulations at 30 C.F.R. Part 50, implementing
the accident reporting provisions of section 103 of the Mine Act, 30 U.S.C.
§ 813.
In Part 50, the Secretary sets forth the meaning of the term
"accident" for reporting purposes. The Secretary has listed at 30 C.F.R.
§ 50.2(h) events that he considers to·be similar in nature and severity to a
mine explosion, ignition, fire or inundation. Although the list is not
exhaustive, it is noteworthy that neither chemical spills nor chemical
contamination are included. Moreover, the events listed require quick action.
They include an entrapment of an individual for more than 30 minutes; an
unplanned inundation of a mine by a liquid or a gas; certain unplanned roof
falls; unstable impoundments, refuse piles and culm banks that require
emergency action; and damage to hoisting equipment that endangers an
individual.

9 The Secretary argues that the judge concluded that the release of mercury
was not an accident because mercury contamination is not included in the list of
events in the statutory definition.
S. Br. 11 12; S. Reply Br. 6 n.l.
We
believe that the Secretary has misconstrued the judge's decision.
The judge
recognized that the events listed in the definition were "not meant to be
exclusive or exhaustive." 14 FMSHRC at 1722. The critical determination by the
judge, however, was his finding that, short of "torturing the terminology," no
accident was shown. 14 FMSHRC at 1723.
10

The Secretary's witnesses stated that they were not sure of the source
of the mercury or quantity present in the R-300 area but that they assumed that
the mercury had contaminated the area when chlorine was being produced there.
See,~. Tr. 94.
Industrial hygienist Zalesak described the situation as being
very unusual because the contaminated area was not in active production. Tr.
200. She stated that it was unlikely that these beads had been "sitting [on the
surface] for 13 years" because mercury "vaporizes off." Id. She assumed that
the mercury had been deposited in the area when chlorine was produced and that
the mercury was seeping up through cracks in the concrete and around the
foundation. Tr. 200, 203, 206.

1826

Finally, the Secretary argues that section 103(k) should not be limited
to sudden occurrences that create immediate hazards but should equally apply
to "gradual occurrences that create more long-term hazards" because they
create a similar potential for injury. S. Br. 13-14. He contends that,
because "gradual occurrences and long-standing conditions" can produce serious
injuries, they are "no less amenable than sudden events to the remedial scheme
authorized by section 103(k)." S. Br. 14. The Secretary maintains that,
since there had been "an unplanned and uncontrolled release of a known toxic
chemical," MSHA was authorized to issue the accident control order to prevent
injury to any person and to insure that the operator has a plan to return the
affected area to normal. Id.
The Secretary may be authorized to issue a control order in the event of
a gradual unplanned release of a toxic chemical, but only if there has been an
accident as that term is defined by the Mine Act. The Secretary's witnesses
did not attempt to relate the hazards associated with the conditions in the
area to an event similar to a mine explosion, fire or inundation. While we
agree with the Secretary that an accident need not necessarily involve a
sudden occurrence that creates an immediate hazard, the evidence in this case
fails to support the Secretary's argument that this particular gradual release
of a toxic chemical was similar in nature or presented the same potential for
injury as the events set forth in the statutory definition of accident. 11
We disagree with the Secretary's argument that the judge vacated the
section 103(k) order because MSHA could have achieved the same results through
the more usual remedial mechanisms in the Mine Act and that he thereby
improperly intruded on the Secretary's enforcement discretion. S. Br. 15-16.
The judge's reasoning is based on his determination that the occurrence of an
accident had not been proven. 14 FMSHRC at 1722-23.
As the judge noted, however, the Secretary was not without a remedy in
this case. As discussed above, the Secretary has standards requiring
operators to post or barricade hazardous areas and requiring that protective
clothing be worn in areas where chemical hazards are present. 30 C.F.R.
§§ 56.20011 & 56.15006; ~notes 3 & 4, supra.
In addition, the Secretary
has standards that limit the exposure of workers to airborne contaminants.
See note 6, supra. If Alcoa failed to abate a citation alleging a violation
of these standards, MSHA could issue a withdrawal order pursuant to section
11
Industrial hygienist Weems testified that the conditions at R-300
presented a potential mercury vapor problem because workers could get mercury on
their work boots, track the mercury into confined spaces and expose workers to
harmful concentrations of mercury vapor. Tr. 154, 164.
Industrial hygienist
Zalesak testified that mercury can be absorbed through inhalation and through the
skin. Tr. 198. At the time the order was issued, however, warning signs and
barricades had been posted in the R-300 area in accordance with 30 C.F.R. §
56.20011. In addition, it appears that workers did not regularly enter the area
because, as Supervisory Inspector Fink testified, the R-300 area was only used
"occasionally for storage." Tr. 106. Moreover, MSHA's investigation revealed
that there was no detectable mercury vapor in the breathing zone of workers who
might enter the. area.

1827

104(b) of the Mine Act, 30 U.S.C. § 814(b). If Alcoa continued to violate
these standards, it would be subject to the sanctions set forth irt sections
104(d) and (e) of the Act, 30 U.S.C. § 814(d) & {e).
Neither the judge's nor our decision in this case interferes with the
Secretary's general authority under section 103 of the Act, 30 U.S.C. § 813,
to continue his investigation of the mercury release at Point Comfort. We do
not disagree with the Secretary's broad interpretation of section 103(k) of
the Act. Our conclusion in this case is based solely on the record developed
before the judge and we do not suggest that the gradual release of a toxic
substance can never qualify as an accident subject to the provisions of
section 103 (k) . 12

12

On August 4, 1993, the Secretary asked the Commission to take official
notice of a document published by the EPA in the Federal Register on June 23,
1993, which indicates that the Point Comfort facility has been included in a list
of potential hazardous waste sites warranting further investigation by the EPA.
In response, Alcoa asked the Commission to deny the Secretary's request as
"improper, irrelevant and untimely." As a general matter, the record on review
before the Commission is limited to the record developed before the judge. See
~. Twentymile Goal Co., 15 FMSHRC 941, 946-47 (June 1993); Union Oil Co. of
California, 11 FMSHRC 289, 300-01 (March 1989).
The Secretary has not
demonstrated the relevance of the EPA document to this proceeding or set forth
a compelling reason why the Commission should take official notice of it.
Accordingly, the Secretary's request is denied.

1828

III.
Conclusion
For the foregoing reasons, the judge's decision is affirmed.

Arlene Holen, Chairman

. Ne l son, Comm1ss1oner
.
.
L . Cl a1r

Distribution

Colleen A. Geraghty, Esq.
Office of t~e Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Timothy P. Ryan, Esq.
Eckert, Seamans, Cherin & Mellott
600 Grant Street, 42nd Floor
Pittsburgh, PA 15219
Administrative Law Judge Roy J. Maurer
Federal Hine Safety & Health RevieH Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1829

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

20006

September 24, 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSr~)
Docket Nos. WEST 91 563
WEST 91 624

v.
AMERICAN MINE SERVICES, INC.

BEFORE:

Holen, Chairman; Back1ey, Doyle, and Nelson, Commissioners

BY THE COMMISSION:

This civil
ty proceeding
under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (l988)("Mine Act" or "Act"),
presents the issue of whether a violation by American Mine Services, Inc.
("AMS") of 30 C.F.R. § 75.1400-3 1 was caused by AMS's unwarrantable failure
to comply with the standard. Administrative Law Judge John J. Morris
concluded that the violation was not a result of the operator's unwarrantable
failure.
14 FMSHRC 2123 (December 1992)(ALJ). The Commission granted the

1

Section 75.1400-3,
provides:

~ntit1ed

"Daily examination of ho

equipment,"

Hoists and elevators shall be examined daily and
such examinations shall include, but not be limited
to, the following:

*

*

*

(b)
(l) An examination
of the rope fastenings for defects;
(2) An examination of the safety catches;
(3) An examination of the cages, platforms,
elevators, or other devices for loose, missing or
defective parts;
(4) An examination of the head sheaves to check
for broken flanges, defective bearings, rope
alignment, and proper lubrication; and
(5) An observation of the lining and all other
equipment and appurtenances installed in the shaft.

1830

Secretary's petition for discretionary review, which challenges the judge's
finding on unwarrantable failure. For the reasons that follow, we affirm.

I.
Factual and Procedural Background
AMS operates the west Elk Mine, otherwise known as the Mount Gunnison
No. l Mine, an underground coal mine in Somerset, Colorado. On January 23,
1991, a hoist malfunctioned, trapping three miners in the ventilation shaft
for two and a half hours. The malfunction was caused by a collar door jam.
' The hoist operator had not examined and checked the hoisting equipment
prior to transporting the three miners. Inspector Cosme Gutierrez of the
Department of Labor's Mine Safety and Health Administration ("MSHA")
investigated the incident. Inspector Gutierrez issued a citation to AMS under
section l04(d)(l) of the Mine Act, 30 U.S.G. § 814(d)(l), for failure to make·
a daily inspection of the hoisting equipment as required under section
75.1400-3.
AMS contested the citation, and a hearing was held before Judge Morris.
The operator argued that there had-been no violation of section 75.1400-3
because AMS inspected the hoist on a daily basis, as required by the standard.
The judge concluded that AMS violated section 75.1400-3 by failing to check
the hoisting equipment "at the commencement of the shift or at least prior to
[the] beginning of any hoist functions." 14 FMSHRC at 2128. The judge also
concluded that the violation was significant and substantial ("S&S") 2 in
nature. 14 FMSHRG 2128-29. He determined, however, that AMS's conduct did
not constitute an unwarrantable failure to comply with the safety standard.
14 FMSHRC at 2129. with respect to assessment of a civil penalty, the judge
concluded that AMS was moderately negligent. Id.
The Secretary appealed the judge's finding on unwarrantable failure.
AMS did not seek review of the judge's determinations as to violation or S&S
designation.

II.
Disposition
On review, the Secretary asserts that the judge failed to consider two
evidentiary factors presented below, which, he asserts, establish unwarrantable failure. The Secretary had introduced evidence that the mine operator
knew of recent malfunctions in the upper limit switch3 of the hoist, which
2

The S&S terminology is taken from section 104(d)(l) of the Act, which
distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a . . . mine safety or
health hazard .... "
3

A "limit switch" is a "device fitted to an electrically driven hoist or
winding engine which becomes effective at the end of a wind to prevent the cage
overwinding or underwinding."
Bureau of Mines, U.S. Department of Interior,

1831

should have put him on notice of a need for heightened scrutiny of the hoist.
In addition, the hoist operator's explanation to the inspector, that he was
too busy to perform the test, showed that the operator knew the hoist should
have been inspected before the miners were lowered. The Secretary argues that
the judge's decision, which overlooks these factors, is not supported by
substantial evidence. The Secret4ry seeks a remand for further consideration
of the record.
In finding the Secretary's evidence inadequate to establish unwarran~
table failure, the judge discussed and discounted the fact that AMS was cited
for a violation of 30 C.F.R. § 75.1400~4 a few minutes before issuance of the
contested citation.
The judge did not discuss the evidence referenced by the
Secretary on appeal.
Nevertheless, we conclude, based on the record before
us, that AMS's actions do not constitute unwarrantable failure.
In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), the
Commission determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence.
This determination was derived,
in part, from the plain meaning oL."unwarrantable" ("not justifiable" or
"inexcusable"), "failure" ("neglect of an assigned, expected, or appropriate
action"), and "negligence" ("the failure to use such care as a reasonably
prudent and careful person would use ... characterized by 'inadvertence,'
'thoughtlessness,' and 'inattention'").
Id. at 2001. Unwarrantable, failure
is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference" or a "serious lack of reasonable care." Id. at
2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February
1991). The Commission's determination was also based on the purpose of
unwarrantable failure sanctions in the Mine Act, the Act's legislative
history, and on judicial precedent.
Emery, 9 FMSHRC at 2002-03.
The Secretary and AMS stipulated that AMS inspected the hoist three
times daily, once each shift. Tr. 164-65. The standard requires that hoists
and elevators "shall be examined daily .... " 30 C.F.R. § 75.1400-3. AMS had
inspected the hoist on the night shift of January 21, which was the last
working day and shift before the hoist malfunction. Tr. 177-79. The record
also contains undisputed evidence that the hoist was generally maintained in
good working order and that the hoisting apparatus exceeded MSHA's safety
standards. Tr. 170; Tr. II 230.
In
9 FMSHRC at 2004-05, the Commission determined that the
operator's failure to detect four popped roof bolts was not aggravated conduct
where Emery had otherwise taken additional measures to provide support and was
not indifferent to roof support.
Rushton Mining Co., 10 FMSHRC 249,
253 (March 1988). Here, AMS had taken extra measures with respect to the
hoist apparatus itself and the frequency of inspections and, in general, was
not indifferent to hoisting safety measures.

Dictionary of Mining. Minerals and Related Terms 643 (1968). Inspector Gutierrez
testified that "limit switches or safety valves would cause that cage to shut off
before it hits the top of the chutes." Tr. 57.

1832

The Secretary contends that the required daily inspection must be
performed prior to use of the hoist.. At the hearing, the MSHA witnesses
testified as to that timing requirement but said they knew of no written
document .specifying such a
Tr. 155-56. The regulation at issue
does not expressly set forth when, during a day or during a shift, a hoist
inspection is to be made. A potential f9r confusion arises from the
difference between the language of the regulation and MSHA's unwritten
enforcement policies.
In King Knob Coal Co., Inc., 3 FMSHRC 1417, 1422 (June
1981), the Commission held that confusing or unclear MSHA policies are a
factor mitigating operator
We conclude that the absence of
specific guidance by MSHA
its view of the meaning of "daily"
examination under section 75.1400 3 mitigates against a finding of aggravated
conduct on the part of AMS.
As to prior malfunction of the limit switch, the operator's master
mechanic, Tony Bowac, testified that he had adjusted and checked the limit
switch the day before the incident. The log book contained the notation of
"check and adjust" on January 22. Tr. II 203-04. The Commission has
explained that a defective condition may place an operator on notice of the
need for heightened scrutiny to ensure compliance with Mine Act
See Eastern Associated Coal Corp., 13 FMSHRC 178, 187 (February 1991)
(continuing leakage problem
the operator on notice of the need for
heightened scrutiny of the leaks); Youghiogheny & Ohio Coal Co., 9 FMSHRC
2007, 2011 (December l987)(history of roof falls at mine placed operator on
notice that heightened scrutiny of roof conditions was vital). There is no
evidence, however, to suggest that a limit switch malfunction should have
alerted the operator to a possible problem with the collar door. AMS acted
appropriately by inspecting and adjusting the limit switch prior to us
the
hoist.
The Secretary also relies on the inspector's testimony that the hoist
operator told him that he had "neglected" to examine the hoist prior to its
use due to a "hectic morning." Tr. 61. This statement, even taken at face
value, neither constitutes a defense nor, under the circumstances, indicates
the aggravated conduct of unwarrantable failure.
Emery, 9 FMSHRC at 2003 04.
Cf., ~. Rochester & Pittsburgh, 13 FMSHRC at 193-94 (aggravated conduct
shown where operator failed to make the required weekly examination, but
certified that he had);
9 FMSHRC at 2011 (aggravated
conduct presented when foreman demonstrated serious lack of reasonable care by
violating clear terms of roof control plan).
\.Je conclude that substantial evidence 4 supports the judge's
determination that the failure to check the hoist before lowering the miners
did not amount to aggravated conduct.
14 FMSHRC at 2129. Although the

4

The Commission is bound by the substantial evidence test when
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 [the judge's] conclusion."
& Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989),
Consolidation Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

1833

judge failed to address some of the Secretary's evidence, the evidence
presented on this record, including that on which the Secretary relies,
supports no other conclusion than that the conduct of AMS was not
unwarrantable failure. In such circumstances, a remand to the judge for
reconsideration would serve no purpose. See Donovan v. Stafford Construction
Co., 732 F.2d 954, 961 (D.C. Cir; l984) (remand unnecessary because evidence
could justify only one conclusion).

1834

III.

For the foregoing reasons, we affirm in result: the judge's determination
that t:he conduct of ANS was not unwarrantable failure.

Arlene Holen, Chainnan

Richard V.

L. Clair Nelson, Commissioner

Distribution

Susan E. Long, Esq.
Office o
the So-icitor
U.S. Department of Labor

40LS wilson Blvd.
Arlington, VA
2203
Hr. Hichael Schutlz
American Mine Services, Inc.
14160 East Evans Avenue
Aurora, Colorado 80014

Administrative Law Judge John J. Horris
& Health Rev ie\·l Commission
Federal Mine Safet
280 Federal Bldf.
1244 Speer Boulevard
Denver, CO 80204

1835

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

20006

Se;;ternber 27. l.993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 91-251

v.

ENERGY WEST MINING 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.l977, 30 U.S.C. § 801 et seq. (l988)("Mine Act" or "Act"),
presents the issue of whether a violation by Energy West Mining Company
("Energy West") of 30 C.F.R. § 75.503 (1992) 1 was significant and substantial
("S&S") in nature. 2
Administrative Law Judge Michael Lasher concluded that
the violation was S&S and assessed a $750 civil penalty. 14 FMSHRC 1595
(September 1992)(ALJ). For the reasons discussed below, we remand for further
proceedings.

l
30 C. F .R. § 75.503, entitled "Permissible electric face equipment;
maintenance," provides in pertinent part:

The operator of each coal mine shall maintain in
permissible condition all electric face equipment ...
which is taken into or used inby the last open crosscut
of any such mine.
2

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.

§ 814(d)(l), which distinguishes as more serious in nature any violation that

"could significantly and substantially contribute to the cause and effect of a
... mine safety or health hazard .... "

1836

I.

Factual and Procedural Back~round
Energy West operates the Cottonwood Mine, an underground coal mine in
Huntington, Utah. On October 24, 1990, Donald Gibson, an inspector of the
Department of Labor's Mine Safety and Health Administration ("MSHA"),
conducted an examination of the electrical equipment at the longwall mining
unit in the 16 West Section. At one longwall shield, the inspector discovered
an impermissible opening between the ballast box 3 and its cover. The
inspector inserted a measuring gauge into the plane flange joint and
determined that the opening was .005 of an inch, exceeding the permissibility
standard set forth at 30 C.F.R. § 18.3l(a)(6). 4 The inspector, together with
Energy West's foreman, Tom Kerns, removed the box's cover and discovered that
rust had caused the opening. He issued a citation to Energy West alleging an
S&S violation of section 75.503.
MSHA subsequently proposed a civil penalty of $350 for the alleged
violation and Energy West contested it. At the hearing before Judge Lasher,
Energy West conceded the violation but contested its S&S designation.
The judge concluded that the violation was S&S. 14 FMSHRC at 1623.
Because of the gravity of the ignition hazard contributed to by the violation,
the presence of miners, and Energy West's negligence, the judge assessed a
civil penalty of $750. Id.
We granted Energy West's petition for discretionary review, which
challenges the judge's S&S determination and his civil penalty assessment.
II.

Disposition of Issues
A violation is properly designated as being S&S "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 an
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:

3

Steel ballast boxes, located on the longwall shields, provide power for
auxiliary lighting.
Each box is approximately 8~-by-ll inches in size and 2
inches thick. A 120-volt cable enters one side of the box, passes through a
power supply module encased in rubber, and is connected to the next ballast box.
An aluminum cover about 3/8 of an inch thick is bolted onto each box. The "plane
flange joint," formed where the cover meets the box, prevents sparks or
explosions from escaping the box. Tr. II 117, 143-44, 150; Exs. G-4, G-5.
4

The regulation requires that the opening for the cited ballast box not
exceed .004 inch. 30 C.F.R. § l8.3l(a)(6).

1837

In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety
standard; ... (2) a discrete safety hazard - that is,
a measure of danger to safety -- contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988),
9 FMSHRC 2015, 2021 (December l987)(approving Mathies criteria). The
Commission has held 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 l984)(emphasis in original).
When examining whether an explosion or ignition is reasonably likely to occur,
"it is appropriate to consider whether a 'confluence of factors' exists to
create such a likelihood."
15 FMSHRG 949, 953 (June 1993)
~~oo.Texas~ulf, Inc., 10 FMSHRC 49'8, 501 (April1988).
aff'~

The judge noted that the first element of the
test, violation of
a safety standard, was conceded. 14 FMSHRC at 1621. The judge determined
that the second element, a discrete safety hazard contributed to by the
violation, was present because the permissibility violation posed the danger
of a methane or coal dust explosion.
14 FMSHRG at 1621-22.
With respect to the third element, which is the subject of dispute on
review, the judge concluded that a reasonable likelihood of an injury was also
present. 14 FMSHRC at 1622. The judge analyzed the evidence from the
standpoint of a "substantial possibility" of injury standard. See 14 FMSHRC
at 1607-1609, 1622. As to the fourth element, a reasonable likelihood that
any injury would be of a reasonably serious nature, the judge found that,
because miners worked near th0 area of the violation, serious injuries would
result if an explosion occu::::red.
14 FMSHRG at 1622.
On review, Energy West challenges only the judge's findings as to the
third element of
It contends that the judge's conclusion is not
supported by substantial evidence 5 in the record and that the judge relied on
an improper
standard. The judge found no "specific evidence" of prior
levels of methane in the mine, but he deemed "credible and convincing"
the inspector's testimony that a methane explosion was always possible. 14
FMSHRC at 1622. He noted that the violation occurred within 150 feet of

5
The Commission is bound by the substantial evidence test when reviewing
an administrative law judge's factual determinations.
30 U.S.G. § 823(d)(2)
(A) (ii) (I). "Substantial evidence" means "such relevant evidence as a re:asonable
mind might accept as adequate to support [the judge's] a conclusion." fochester
& Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989), quoting
Consolidation Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

1838

extraction and that the longwall shearing machine generates and
coal dust.
Id. The judge credited the inspector's testimony that
the opening in the plane
joint was large enough either to permit
electrical sparking to the outside or to admit methane or coal dust into the
opening to cause an explosion. 14 FMSHRC at 1619, 1622. The judge concluded
"that there existed a substantial possibility that the hazard contributed to
by the violation would have resulted in an injury or fatality occurring," and
that, therefore, the third
element was established. 14 FMSHRC at
1622.
The Commission has uniformly applied the Mathies test to analyze S&S
violations since 1984. The judge expressed his view that his finding of a
substantial possibility of a resulting injury satisfied the
reasonable
likelihood element. 14 FMSHRC at 1622. We disagree with the judge that a
substantial possibility formulation is the equivalent of reasonable
likelihood. Such a formulation is at variance with the Commission's criteria
for determining S&S. We acknowledge the judge's effort to
the Mathies
test, but we decline to alter that test. Accordingly, we conclude that the
judge erred in applying a substantial possibility concept in place of
reasonable likelihood.
The judge's substantial possibility analysis does not lend itself to
review under the third
standard. Therefore, we remand this case to
the judge for application of the third Mathies element, i.e., whether there
was a reasonable likelihood that the hazard contributed to would result in an
ury.
We note two additional issues to be resolved. The judge made unclear
findings as to ignitable levels of methane in the past and we request the
judge to clarify his findings on that subject. 6 The j
referred to the
mine as "gassy" (14 FMSHRC at 1622) and, on review, the parties have disagreed
as to whether the mine is subject to spot inspections under section 103(i) of
the Act, 30 U.S.C. § 813(i). The Mine Act does not
employ "gassy"
or "nongassy" classifications. We ask the judge on remand to clarify whether
the Cottonwood Mine was
ect to section 103(i)

6

The judge found that there was no evidence of prior detection of high
levels of methane, although he noted testimony by Inspector Gibson that the mine
had experienced ignitable levels of methane. 14 FMSHRC at 1620, 1622. The judge
also found, in his analysis of another citation decided in this consolidated
proceeding, that ignitable levels of methane have never been detected in this
mine.
14 FMSHRC at 1606 n.9.

1839

III.
Conclusion
For the foregoing reasons, we vacate the judge's S&S determinations and
remand for analysis pursuant to the
standard. We do not reach the
civil penalty issues raised by Energy West.

~JUk

Arlene Holen, Chairman~

z},uy~ d~

~ A? Doyle Commissioner

~~

L. Clair Nelson, Commissioner

Distribution

Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Tana Adde, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Administrative Law Judge Michael Lasher, Jr.
Federal Mine Safety & Health Review Corrunission

280 Federal Building
1244 Speer Boulevard
Denver, Colorado 80204

1840

ADMINISTRATIVE LAW JUDGE DECISIONS

J'BDBRAL J[[J!IB SAFETY UJD BBAL'1'B RE'VIBW COXI!I.I:SS:IOJI
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SEP 3 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ex rel. , ON BEHALF OF
DENNIS RAY BURRESS,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No.

VA 93-52-D

NORT CD 92-05
V. P. No. 6

GARDEN CREEK POCAHONTAS
COMPANY, WILLIAM FIX &
CLIFTON HUCKLEBERRY,
Respondents

DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

This is a discrimination proceeding under § 105(c)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq.
The parties have moved for an order approving a proposed
settlement and dismissing the case.
FOR GOOD CAUSE SHOWN, the motion is GRANTED.

ORDER
WHEREFORE IT IS ORDERED that:
1.

The settlement is approved, and the parties are
directed to comply with all of its terms.

2.

Subject to compliance with the settlement, this
proceeding is DISMISSED.

(J)dt.~ 1-lt#l v ~

William Fauver
Administrative Law Judge

1841

Distribution:
Caryl L. Casden, Esq., Office of the Solicitor, u.s. Oepartment
of Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
(Certified Mail)
Marshalls. Peace, Esq., 201 W. Vine Street, Lexington, KY
(Certified Mail)
jefw

1842

40507

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

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

71993
CIVIL PENALTY PROCEEDING
Docket No. SE 92-493-M
A.C. No. 01-02915-05505
Baker Mann Mine

ABYSS SAND & GRAVEL, INC.,
Respondent
'DECISION
Appearances:

Kathleen G. Henderson, Esq., Office of the
Solicitor, u.s. Department of Labor, Birmingham,
Alabama, for the Petitioner.

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 110(a) of the Federal Mine Safety and Health Act of
1977v 30 u.s.c. § 820(a), seeking civil penalty assessments for
two alleged violations of certain mandatory safety standards
found in Part 56, Title 30, Code of Federal Regulations. The
respondent contested the alleged violations and a hearing was
convened in Montgomery, Alabama, pursuant to notice. The
petitioner appeared, but the respondent did not, and the hearing
proceeded as scheduled. For reasons discussed later in this
decision, the respondent is held to be in default, and is deemed
to have waived its opportunity to be further heard in this
matter.
Applicable Statutory and Regulatory Provisions
1.

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

2.

Section 110(i) of the 1977 Act, 30 u.s.c.

3.

Commission Rules, 29 C.F.R.

1843

§

§

820(i).

2700.1, et seq.

Issues
The issues presented in this case are (1) whether the
petitioner has established the violations as cited in the
contested citations, and (2) the appropriate civil penalties
that should be assessed for the violations.
Discussion
section 104(a) non-"S&S" Citation No. 3426449, July 21,
1992, cites an alleged violation of mandatory safety standard
30 c.F.R. § 56.1413l(a), and the cited condition or practice
states as follows (Exhibit P-4):
A seat belt was not provided for the Euclid Model R-22
haul truck and was operating in the pit area. However,
the ground was level and was not operating on elevated
roads.
Section 104(a) "S&S" Ci~ition No. 3426448, July 21, 1992,
cites an alleged violation of mandatory safety standard 30 C.F.R.
§ 56.14132(a), and the cited condition or practice states as
follows (Exhibit P-5):
The back alarm was not working on the 980 Cat end
loader and was operating in the plant and stock pile
areas.
The respondent failed to appear at the hearing in this
matter. The notices of hearing were mailed to the respondent's
business address of record by regular mail and certified mail.
The certified mailings were returned from the post office as
~ undeliverable p 11 unclaimedn
and "no mail receptacle".
9

§

99

The applicable Commission default Rule 66, 29 C.F.R.
2700.66p provides as follows:
(b) Failure to attend hearing. If a party fails to
attend a scheduled hearing, the Judge, where
appropriater may find the party in default or dismiss
the proceeding without issuing an order to show cause.
c)

Penalty Proceedings. When the Judge finds a party
default in a civil penalty proceeding, the Judge
shall also enter an order assessing appropriate
penalties and directing that such penalties be paid.
William Wilkie, MSHA Inspector and field supervisor,
confirmed that he sent an inspector to the respondent's mine site
in an attempt to contact the respondent, but found the entrance
gate closed, and he could not gain entry. Telephone calls were
also placed to the mine phone number listed on MSHA's Legal

1844

Identity form, as well as the respondent's home, but no one
answered the phone (Tr. 54). Mr. Wilkie confirmed that MSHA
permanently closed the mine on March 29, 1993, and he did not
know the whereabouts of the respondent mine operator {Tr. 54).
The Birmingham, Alabama solicitor's office advised me that
several prehearing attempts to contact the respondent by
telephone at his last known business and residence telephone
numbers were to no avail (Tr. 55-56).
In view of the foregoing, the petitioner's counsel moved
that a default judgment be entered against the respondent
pursuant to commission Rule 66(b), 29 C.F.R. § 2700.66(b), and
that both of the citations be affirmed (Tr. 5-6). The motion was
granted from the bench (Tr. 6), and my ruling in this regard is
herein reaffirmed, and I find the respondent to be in default.
Petitioner's Testimony and Evidence
''•·

The evidence presented by the petitioner in the course of
the hearing establishes that the respondent is subject to the
jurisdiction of the Act, and that the petitioner correctly
exercised its enforcement jurisdiction in inspecting the mine and
issuing the citations in this case (Tr. 8-12).
MSHA Inspector Jose o. Garcia testified that he inspected
the mine in July, 1992, and issued the citations in question. He
confirmed that a seat belt was not provided for the cited truck
which he observed being operated. He stopped the truck and
observed that it did not have a seat belt for the operator to use
while driving the truck (Tr. 13-16). He also confirmed that he
inspected the cited loader and asked the operator to back it up.
When he did 9 the backup alarm did not work (Tr. 22).
Inspector Garcia testified to the hazards presented in
operating the truck without a seat belt, and operating the loader
with an inoperative backup alarm {Tr. 16-17; 22-26). He also
explained the basis for his 11 5&5 11 finding with respect to the
backup alarm violation, and he confirmed that he considered the
seat belt violation to be non-"S&S" (Tr. 27-29; 41-47).
Mr. Garcia testified that the plant area in question was a
rather confined area and that the stockpiles are close to the
conveyor belts where the truck drivers come into in the area. He
observed people on foot in the area, and he indicated that most
loader accidents occur when the loader is backing up in the
direction of someone walking nearby. He confirmed that the shift
started at 7:00a.m., and that he observed the loader shortly
-

1845

after noon and concluded that it had been operating that morning
moving materials around the plant area and loading trucks
(Tr. 49-52).
Findings and Conclusions
Fact of Violations
As previously noted, the respondent failed to appear at the
hearing and it has been defaulted. Based on the evidence and
testimony presented by the petitioner, I conclude and find that
the violations have been established, and the contested citations
ARE AFFIRMED as issued.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to continue in Business
Inspector Garcia confirmed that the respondent is no longer
in business and that the mine has been closed. He characterized
the respondent as a small operator employing six or seven people
when it was in operation. The mine had an annual production of
1,600 tons or hours worked as a sand and gravel operation
(Tr. 32-34) .
I conclude and find that the respondent is a small mine
operator, and in the absence of any evidence to the contrary, and
notwithstanding the fact that the respondent has apparently
closed its mining operation, I cannot conclude that payment of
the penalty assessments for the violations which have been
affirmed will adversely affect the respondent's ability to
continue
business.
History of Prior Violations
The inspector confirmed that the respondent has a history of
prior violations (Tr. 35). However, the petitioner did not
produce a computer print-out detailing any prior violations or
assessments, and the inspector had no knowledge of any prior
backup alarm or seat belt violations (Tr. 39-40). The pleadings,
which include certain information concerning the penalty criteria
found in section llO{i) of the Act, reflect 16 prior assessed
violations but no further information is provided (Tr. 39).
I take note of the fact that in a prior civil penalty
proceeding involving these same parties, Docket No. SE 92-10-M,
I issued a settlement decision on June 24, 1992, concerning
fourteen (14) prior violations, including a violation of
section 56.14131, issued on July 18, 1991, and a violation of
section 56.14132(b) (1), issued that same date. The first
citation was assessed at $20, and the respondent agreed to settle
it by paying the full amount. The second citation was assessed
at $68, and it was settled for $30.

1846

Negligence
The inspector testified that the seat belt violation
resulted from a moderate degree of negligence on the part of the
respondent (Tr. 17-19). He confirmed that he discussed the
citations with Mr. Mann, the mine operator, and that he offered
no explanations for the violations other than to point out that
the truck was an old truck which was not equipped with a seat
belt (Tr. 48}. The inspector also found a moderate degree of
negligence associated with the backup alarm violation. I agree
with the inspector's negligence findings and adopt them as my
findings and conclusions.
Gravity
I conclude and find that the seat belt violation was
nonserious, and that the violation for the inoperative backup
was a serious violation.
Good Faith Abatement
The inspector confirmed that the seat belt violation was
abated the day after the citation was issued (Tr. 17). He also
confirmed that the backup alarm violation was abated and that the
respondent acknowledged both of the violative conditions that
were cited (Tr. 29). He confirmed that a new switch was
installed to repair the backup alarm (Tr. 47-48). I conclude and
find that the cited conditions were timely abated by the
respondent in good faith.
Civil Penalty Assessments
Although the respondent failed to appear at the hearing and
has been defaultedu I nonetheless take note of its answer in this
case contesting the amount of the proposed civil penalty
assessmentsQ The respondent asserted that its sand and gravel
operation has been closed due to the lack of operating funds and
its "struggle to pay bills". The respondent characterized the
proposed civil penalty assessment of $595 for the "S&S"
inoperative backup alarm violation, and $204 for the non-"S&S"
seat belt violation as waamazing. 10 The petitioner"s oral motion
that I affirm the amounts of the proposed penalty assessments was
taken under advisement (Tr. 52).
It is well settled that the presiding judge is not bound
by the proposed civil penalty assessments and may make his own
de novo penalty determinations based on the civil penalty
criteria found in section 110(i) of the Act. Further, Commission
Rule 66(c) authorizes the judge to enter an order assessing
"appropriate penalties" in the case of a defaulting mine
operator. Under the circumstances, and based on my consideration

1847

of all of the facts in this case, I conclude and find that the
following civil penalty assessments are reasonable and
appropriate in this case:
Citation No.
3426448
3426449

7/21/92
7/21/92

30 C.F.R. Section

Assessment

56.14132(a)
56.1413l(a)

$125
$75

ORDER
The respondent IS ORDERED to pay the civil penalty
assessments made by me for the enumerated violations which have
been affirmed by me in this matter. Payment is to be made to the
petitioner (MSHA) within thirty (30) days of the date of this
decision and order, and upon receipt of payment, this matter is
dismissed.

George A. Koutras
Administrative Law Judge
Distribution:
Kathleen G. Henderson, William Lawson, Esqs., u.s. Department of
Labor, Office of the Solicitor, suite 201, 2015 Second Avenue
North, Birmingham, Alabama 35203 (Certified Mail)
Mr. Henry Mann, President, Abyss Sand & Gravel, P.O. Box 96,
Tallasseep AL 36078 (Certified Mail}

1848

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

.?OYJE

SEP 8 l99J
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 92-421-M
A. C. No. 33-00058-05502GTJ
Diamond Stone Mine

v.
DAVIS TRUCKING COMPANY,
Respondent

DECif?ION APPROVING SETTLEMENT
Before:

Judge Merlin

This case is before me upon a petition for assessment of the
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977. The Solicitor has filed a motion to
ap~rove settlement.
A reduction in the penalty from $2,000 to
$1,000 is proposed.
The one violation in this case was issued
for failing to require the use of seat belts by the operator's
truck drivers. The Solicitor represents that the reduction is
warranted because the operator immediately instructed its drivers
to wear seat belts after receiving the violation.
In addition,
the Solicitor advises that the operator
small in size, has a
modest history of prior violations and is experiencing financial
difficulties.
I have considered the representations and documentation
submitted in this case, and I conclude that the proffered
settlement amount which remains substantial is appropriate under
the criteria set forth in section llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that the operator pay a penalty of $1,000
within 30 days of this order.

Paul Merlin
Chief Administrative Law Judge

1849

Distribution:

(Certified Mail)

Kenneth Walton, Esq., Office of the Solicitor, U. s. Department
of Labor, 881 Federal Office Building, 1240 East Ninth Street,
Cleveland, OH 44199
Marshall B. Douthett, Esq., 239 Main Street, Jackson, OH

45640

Mr. Lou Barker, Davis Trucking Company, P. 0. Box 109, Jackson,
OH 45640
/gl

1850

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

SEP
RICKY DARRELL EALY,
Contestant
v.

91993

. DISCRIMINATION PROCEEDING
: Docket No. KENT 93-662-D
:

R B MINING COMPANY, INC.,
Respondent

BARB CD 93-15
RB #4 Mine

SUMMARY DECISION AND ORDER OP DISMISSAL

On March 9, 1993, Contestant, Ricky Darrell Ealy, filed a
discrimination complainant with MSHA alleging that he had been
fired on June 10, 1992, due to an injury to his knee and the need
for surgery. On May 17, 1993, MSHA informed Contestant that it
had determined that a violation of § 105{c) of the Act had not
occurred. Thereupon, Mr. Ealy filed a complaint with the
Commission.
Respondent, in its Answer, requested dismissal of the
Complaint on the grounds that it was not timely filed and that it
failed to state a cause of action upon which relief could be
granted. On August 5, 1993, I issued an Order To Show Cause
requiring Mr. Ealy to show why the Complaint should not be
dismissed on the grounds raised in the Answer.
Contestant responded to this Order on August 20, 1993. With
regard to the timeliness issue, he states that he filed his
discrimination case nine months after he was fired because he was
unaware of the requirement that discrimination complaints be
filed within 60 days. 1 As to the issue of whether his complaint
states a claim upon which relief can be granted, Contestant
responded:
I do feel I was discriminated against due to the injury
to my knee and that I had to have surgery. I feel the
only reason I was fired was so that the mines (sic)
would not have to pay me compensation.

1

In light of my disposition of the issue of whether
contestant has stated a claim upon which relief can be granted, I
need not reach the question as to whether his response is
sufficient to avoid dismissal on timeliness grounds.

1851

Contestant also alleges that he was threatened with discharge if
he filed for Black Lung Benefits.

Mr. Ealy, in responding to the Show cause Order, attached a
June 18, 1992, letter he filed with an agency of the State of
Kentucky. on page 4 of that letter there is an account of
conversation with one Steve Brock on June 13, 1992, in which Mr.
Brock apparently told Contestant that Federal Mine Inspectors
were on Respondent's property and that Respondent "was saying
that (Contestant] had called them, which [Contestant] had not."
Contestant does not allege, however, that Respondent was under
the impression that he had contacted MSHA prior to discharging
him on June 10, 1992.
The record in this matter contains no allegation that
Contestant engaged in activity protected by section 105(c) of the
Federal Mine Safety and Health Act. See Randy J. Collier v.
Great Western Coal. Inc., 1-2 FMSHRC 35 (Judge Broderick, January
1990). Even if Mr. Ealy were to establish that Respondent
discriminated against him due to his physical condition or his
need of surgery, I would be unable to afford him any relief.
I construe Respondent's Answer as a motion for summary
decision pursuant to the Commission's Rules of Procedure, 29 c.
F. R. 2700.67. Missouri Gravel Company, 3 FMSHRC 2470 (November
1981). I find that there is no genuine issue as to any material
fact; and that Respondent is entitled to summary decision as a
matter of law. I, therefore, grant this motion and dismiss
Contestantts discrimination complaint.

ili~

Administrative Law Judge
703-756-4572

Distribution~

Ricky Darrell Ealy, P.O. Box 65 9 Hulen, KY 40845 (Certified Mail)
Susan C. Lawsonu Esq., Buttermore, Turner, Lawson & Boggs, P.O.
Box 935 0 Harlanu KY 40831 (Certified Mail)
/jf

1852

I'BDBRAL JIIBB SUBTY UD JIBALTB RBVJ:D COIDD:SSIOB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SEP 101993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. SE 92-455
A. C. No. 40-02045-03577
:

Docket No. SE 92-456
A. C. No. 40-02045-03578

S & H MINING, INC.,
Respondent

s & H Mine No. 2
DECISION

Appearances:

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

u. s. Department of Labor, Nashville, Tennessee,

for the Secretary;
Imogene A. King, Esq., Frantz, McConnell & Seymour,
Knoxville, Tennessee, for Respondent.

Before:

Judge Feldman

The above proceedings are before me as a result of petitions
filed by the Secretary of Labor, pursuant to section 105(d) of
the Federal Mine Safety and Health Act of 1977q 30 u.s.c. § 801
et seq.p (the Act). These cases were heard on June 17u 1993, in
Knoxvilleu Tennessee.. The pertinent jurisdictional stipulations
and stipulations concerning the civil penalty criteria contained
in section 110(i) of the Act are of record.
The parties moved to settle the citation in issue in Docket
No. SE 92-456 after presentation of the Secretary's direct case.
The terms of the settlement agreement concerning this case were
approved at the hearing and will be incorporated as part of this
decision.
Remaining Docket No. SE 92-455 was tried in its entirety.
This docket involves two 104(a) citations, designated as
significant and substantial, associated with alleged operational
violations of the respondent's No. 1 and No. 4 conveyor belt
mantrips. Specifically, the respondent has been cited for
violation of the mandatory safety standard specified in
section 75.1403-5(a), 30 C.F.R. § 75.1403-5(a). This mandatory
safety standard provides:

1853

Positive-acting stop controls should be installed
along all belt conveyors used to transport men, and
such controls should be readily accessible and
maintained so that the belt can be stopped or started
at any location. (Emphasis added).
The threshold issue for determination is whether the
positive-acting stop controls (the stop cords) were "readily
accessible" as contemplated by the applicable mandatory safety
standard. Inspector M. J. Hughett and Supervisor Harrison R.
Boston testified on behalf of the Secretary. The respondent
called Paul G. Smith, President of S & H Mining, Inc., and
Lonnie P. Carden, an employee of the corporate respondent. The
parties 1 have also filed post hearing and reply briefs which I
have considered in my disposition of this case. 1
PRELIMINARY FINDINGS OF FACT

On the morning of Aprill6, 1992, MSHA Inspector
M. J. Hughett arrived at the respondent's No. 2 Mine for the
purpose of performing a routine inspection. Hughett was
accompanied by Jacksboro Field Office Supervisor Harrison R.
Boston. Boston was accompanying Hughett to evaluate Hughett's
performance as a coal inspector. (Tr. 58). Hughett and Boston,
accompanied by the respondent's Superintendent Charles White,
proceeded to travel inby to inspect the mine's conveyor belt
system.
The No. 2 Mine utilizes four conveyor belt mantrips for the
purpose of transporting miners from the surface to the working
face. These four belts are numbered consecutively starting with
originating at the surface. Each belt is approximately
28
wide and travels at speeds between 200 and 250 feet per
minute. To ride the belts to the faceu personnel must lie flat
on their chests in a prone position. There is a shutoff switch
at the head and tail end of each conveyor belt and at the middle
of each
In between each of these switches is a positiveacting stop cord that is hung to enable miners to stop or start
the belt at any location. The stop cord
installed along the
belt line on the mineris left side as the miner is facing inby.
Boston testified that the mandatory safety standard requires the
stop cord to be readily accessible by positioning it where the

1 The respondent filed proposed findings on August 5, 1993.
Due to a delay in obtaining the transcript of this proceeding,
the Secretary was permitted to file his proposed findings, which
also served as reply findings, on August 30, 1993. The
respondent filed reply findings on September 7, 1993.

1854

cord can be seen and reached by "just sticking [one's] arm
straight out." (Tr. 66). As a result of his inspection, Hughett
issued citations alleging violations concerning the condition of
the stop cord for all four conveyor belts. 2
Citation No. 3382643 - No. 1 Conveyor Belt
The No. 1 belt entry is a comparatively old entry with
numerous timbers and cribs on each side of the belt to support
the roof which has sloughed and fallen over the years. (Tr. 23,
88). This belt line is approximately 250 feet long. The height
of the belt entry from floor to ceiling is between 28 and 34
inches. (Tr. 26, 52, 59, 104). Clearance from the level of the
belt line to the roof, however, is only 24 inches. (Tr. 52, 104,
152). Approximately 25 feet inby from the portal is an area with
diminished clearance which is approximately 45 feet long.
(Tr. 148). In this area, the ceiling is approximately 6 inches
lower than the remainder of the roof along the No. 1 belt entry
due to additional collars that have been installed to support an
area of draw rock. (Tr. 130}. In this cross-timbered area,
clearance from the belt line to the roof decreases from
approximately 24 inches to 18 inches. (Tr. 152).
The weight of the miner causes the No. 1 belt to operate in
a cupped or concave manner analogous to the shape of a hammock.
(Tr. 120). Thus, the edges of the belt are higher than the
middle of the belt. The bottom rollers that move the belt are
set into holes dug in the floor. The top rollers which are
2 inches wider than the belt are slightly higher than the edge of
the belt line. (Tr. 136-137).
Upon inspecting the No. 1 conveyor, Hughett concluded that
the stop cord was not readily accessible along the entire length
of the belt. His conclusion was based on excessive slack in the
line which caused it to hang lower than the belt line so that it
could not be reached. (Tr. 18). Hughett described the inaccessible slack areas as existing "all the way" along the belt line.
(Tr. 23)o He also testified that the cords "swagged" down below
the belt line between each timber to which the cord was attached 0

2

Citation Nos. 3382644 and 3382645 were issued for
violations in connection with the stop cord controls along the
No. 2 and No. 3 conveyor belts. (Gov. Ex. 5, 6). The violative
conditions cited in these citations are different from those
cited in the citations in issue concerning the No. 1 and No. 4
belt lines. (Tr. 34). The citations issued for the No.2 and 3
belt lines were uncontested by the respondent and the proposed
civil penalties for these citations were paid. (Tr. 26).

1855

although he could not recall the distance between the timbers.
(Tr. 35, 41). Boston testified that the cord was not clearly
visible for approximately 50 percent of the distance along the
belt. (Tr. 118).
In rebuttal, Smith testified that the stop cord was hung
from 6 to 8 inches above the belt at all locations along the
No. 1 belt line except for the 45 foot area that was crosstimbered. (Tr. 132, 149). Smith further testified that in this
cross-timbered area, the stop cord was intentionally installed at
a lower level than the timbers so that it would be easier to
reach because the miners tend to duck under this low clearance
area. (Tr. 130, 152). Smith described the location of the stop
cord in this area as approximately 2 to 3 inches beneath the top
level of the top roller. (Tr. 156).
Citation No. 3382643 was terminated by Hughett on April 22,
1992, wherein Hughett concluded that the "· •• stop control
along the No. 1 belt line was installed to a properly [sic]
working condition." Smith testified that the only action taken
to abate this citation was to raise the stop cord 6 inches on the
lateral timbers in the 45 foot cross-timbered area. (Tr. 139).
Citation No. 3382646 - No. 4 Conveyor Belt
The No. 4 conveyor belt, which advances as the working face
advances, was approximately 1800 feet long from the belt drive to
the tail piece when inspected by Hughett on April 16, 1992.
Although the width of the No. 4 belt is the same as that of the
No. 1 belt, the clearance from floor to roof is considerably
greater along the No. 4 conveyor belt. (Tr. 146).
Hughett testified that the stop cord was inaccessible at a
distance of aa3 or 4 feetn from the belt line in three or four
different places. (Tr. 28, 48). Other than these three or four
places, Hughett testified that the placement of the stop cord
complied with the regulations. (Tr. 48). Boston testified that
the
1 cord was inaccessible at distances from 11 3, 5 or 6 feet
from the belt~~ in six, possibly eight locations. (Tr. 117,
118}. Hughett noted no problem with the installation height of
the stop cord. {Tr. 46). Boston testified that the stop cord
was unreachable for approximately 20 percent of length of the
No. 4 conveyor belt. (Tr. 117). Boston further testified that
w'the [cord for the] No. 4 belt was definitely more accessible
than the No. 1 [belt].n (Tr. 119). Finally, Boston testified
that he determined the cord's accessibility by sticking his arm
straight out to see if the cord could be reached.
(Tr. 66, 67).
Lonnie Carden, an employee of the respondent, is a certified
beltman with foreman's papers. (Tr. 190, 191). At the time of
the inspection, Carden's responsibilities included performing the
preshift examinations on the No. 1 through No. 4 conveyor belts.

1856

(Tr. 179, 180). Carden was also responsible for the maintenance
of the No. 4 belt, including operation of the pull cords and belt
switches. (Tr. 191). Carden stated that on April 16, 1992, at
approximately lunch time, he rode the No. 4 belt outby behind
Hughett and Boston. (Tr. 195, 200). Carden observed Boston
reach his hand out to evaluate the stop cord distance. (Tr. 192,
193). Carden admitted that Boston could not reach the cord at
certain locations. However, Carden testified that, at these
locations, Boston remained in the middle of the belt extending
his arm directly from that point without making any effort to
shift his body which would have brought him into contact with the
cord. (Tr. 198). Carden, who was familiar with the No. 4
conveyor belt, stated that in order to reach the cord at those
locations it was only necessary for Boston to slide or move his
body slightly toward the cord. (Tr. 198).
On April 22, 1992, Hughett terminated Citation No. 3382646
on the basis of his conclusion that the positive-acting start and
stop control along the No. ·4 belt was installed "properly. 11
(Gov. Ex. 3). However, both Smith and Carden testified that they
took no action to abate this citation because they could not find
an area where the stop cord was inaccessible. (Tr. 181, 182).
FURTHER FINDINGS AND CONCLUSIONS

Fact of occurrence
As noted above, the question for resolution is whether the
stop cords on the No. 1 and No. 4 belts were readily accessible
as required by section 75.1403-5(a). Webster's Third New
International Dictionary, (1986 Edition) (l'Webster's 11 ) defines
01
readily" as 11 with fairly quick efficiency• without needless loss
time< reasonably fast; with a fair degree of ease; without
:much difficulty; with facility; easily. 11
No. 1 conveyor Belt
With respect to the Noo 1 belt line, it is uncontroverted
that the stop cord was obscured for a significant distance
(approximately 45 feet). Both Hughett and Boston testified that
the stop cord was swagged and the cord was not visible because it
was hanging below the belt.
Significantly, Smith's testimony tended to support the
observations of Hughett and Boston. Smith conceded that the stop
cord was "an inch at the most" below the belt line. (Tr. 131).
Smith also described the swag in the cord as "maybe a half an
inch below the rollers." (Tr. 131). Although Smith characterized the cord in this 45 foot area as "visible, .. he stated that
you "couldn't see the cord if you were looking at the roller, but
you could see between the rollers, and the belt is down between
the rollers, and you can see between them and see the cord there

1857

if it were swagging below that." (Tr. 132-133). In a further
acknowledgement that the cord was obscured, Smith testified that
81
you can put your head up to the edge and see out over the
belt
.if you hang your head out over the belt you could stick
it into a timber also. But you've got to know what you are
doing, and you can come to the edge and you can look down."
(Tr. 135).
e

0

Applying the operative term "readily" accessible, it is
clear that an object that cannot be easily visualized cannot be
construed to be readily accessible as contemplated by
section 75.1403-S(a). Thus, I conclude that the Secretary has
met his burden of establishing that a violation of the applicable
mandatory safety standard did in fact occur at the No. 1 conveyor
belt.
No. 4 Conveyor Belt

Turning to the No. 4 belt line, the issue is whether the
stop cord was a lateral distance of 3 to 6 feet from the edge of
the belt at several locations as the Secretary alleges, or,
within reach by shifting the position of one's body on the belt
as the respondent argues. The Secretary must bear the burden of
establishing the fact of a violation. In this case, Hughett and
Boston have provided contradictory and inconsistent testimony
concerning the number of locations where the cord was allegedly
unreachable and the distances at these locations from the cord to
the edge of the belt. (See Tr. 28, 117, 118).
Moreover, the Secretary has failed to rebut Smith's claim
that no remedial action was taken to abate Citation No. 3382646
because the stop cord was accessible along the entire length of
'the Noc 4
Significantly, Hughett@s April 22, 1992,
~ermination of Citation No. 3382646 fails to specify what action
was taken to abate the alleged violation. Nor does Hughett's
contemporaneous notes taken on April 22, 1992, which were
described by the Secretary's counsel as nsketchy,n specify what
actiong if any, was taken to abate the citation. (Tr. 219).
Hughettgs recollection concerning the respondent's abatement
efforts was vague and faultyo
(See Tr. 214-222). Finally,
Hughett testified that he may have been over-zealous in the
presence of Boston who was evaluating his performance as an
inspectoro (Trc 44-45).
Bostonws testimony also does not effectively rebut the
respondent 1 s assertion that no corrective action was taken.
Boston testified that he does not have any reason to believe that
the conditions were not corrected. However, he indicated that he
does not have an independent recollection of what was done to
terminate the citation. (Tr. 111). Later in Boston's testimony
during cross-examination as a rebuttal witness, Boston testified
that his recollection concerning the respondent's abatement had

1858

been refreshed by reading Hughett's notes. (Tr. 235-236).
However, these notes are silent concerning abatement at the No. 4
conveyor belt. (Tr. 220-222; Gov. Ex. 12).
In an effort to overcome the inconsistencies in the testimony of Hughett and Boston, the Secretary faults the respondent
for its failure to call its Superintendent, Charles White, to
corroborate Hughett's and Boston's account. (Petitioner's Brief,
13-14). However, the Secretary has the burden of proving the
fact of a violation. The respondent is under no obligation to
assist the Secretary in this endeavor. If the Secretary
considered White's testimony to be crucial, he was free to
subpoena him as an adverse witness. See Brown v. United States,
414 F.2d 1165, 1167 (D.C. Cir. 1969). Having failed to do so,
the Secretary is not entitled to a beneficial inference that
White, if called, would have buttressed the Secretary's case.
Significantly, White does not possess the requisite unique or
special knowledge with regard to Hughett's or Boston's
observations that warrants anadverse inference against the
respondent. Cf. NLRB v. Laredo Coca-Cola Bottling Co., 613 F.2d
1338 (5th Cir. 1980); NLRB v. Dorn's Transportation Co., 405 F.2d
706 (2d Cir. 1969) (cases permitting an adverse inference
concerning missing witnesses• statements or motivations).
Thus, on balance, I credit the testimony of Carden and Smith
that the cord was reachable in the areas in question by simply
sliding or moving the body toward the edge of the belt and
reaching for the cord. (Tr. 166, 181, 184-185, 198). Having
concluded that the cord was reachable by leaning and reaching out
over the edge of the belt, I find that the Secretary has failed
to demonstrate that the stop cord was not readily accessible.
Therefore, Citation No. 3382646 shall be vacated.
~ignificant

and Substantial

The remaining issue is whether Citation No. 3382643 issued
for the No. 1 conveyor belt was properly designated as
significant and substantial. A violation is deemed to be
•usignificant and substantial" if there 11 a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." u. s. steel Mining
Company. Inc., 7 FMSHRC 327, 328 (1985)1 Cement Division,
National Gypsum Company, 3 FMSHRC 822, 825 (1981); Mathies Coal
Company, 6 FMSHRC 1, 3-4 (1984). This evaluation is made in
terms of 11 continued normal mining operations." u. s. steel
Mining Company. Inc., 6 FMSHRC 1573, 1574 (1984). The question
of whether a particular violation is significant and substantial
must be based on the particular facts surrounding the violation.
1exas Gulf, Inc., 10 FMSHRC 498 (1988); Youghioghney & Ohio Coal
Company, 9 FMSHRC 2007 (1987).

1859

Hughett testified that the function of the stop cord is to
enable a miner to deenergize the belt in case o.f an emergency.
(Tr. 12). Hughett and Boston testified that an ever present
hazard is roof material falling on the belt. In such an event,
given the concavity of the belt, it is possible that a miner
could sustain serious injury by being carried on the belt
underneath fallen roof material. In this regard, the testimony
reflects that the No. 1 belt line is located in an area that is
prone to roof fall.
(Tr. 23, 87, 88). Moreover, in view of the
number of timbers and cribs required to support the roof, Boston
testified that it would be almost impossible to jump off the
No. 1 belt because of the lack of lateral clearance along the
belt line. (Tr. 122).
Boston characterized the hazard contributed to by this
violation as twofold. The first hazard, as noted above, is that
a miner could not stop the belt in case of an emergency because
he could not locate the stop c.ord. . .The second hazard is the risk
associated with injury to the hand or arm if a miner extended his
upper extremities beneath the belt. In such an event, the
rollers, which are spaced 8 to 10 feet apart, can cause a serious
crushing injury to the hand. There are also wood supports
installed against the belt itself which can cause serious
injuries to the head or hand as the miner maneuvers for the cord.
Thus, it is apparent that this violation exposes the miner to
significant injuries by virtue of his inability to deenergize the
belt as well as by the act of blindly reaching for the cord. As
such, the Secretary has established that there is a reasonable
likelihood that the hazards contributed to by this violation will
result in a serious injury given continued mining operations.
Consequently, Citation No. 3382643 was properly designated as
significant and substantial.

Citation No. 3382643 notes a moderate degree of negligence
with regard to the violation associated with the No. 1 belt.
Negligence is commonly referred to as a measure of one 1 s carelessness. In this regardu Smith testified that the stop cord was
intentionally hung lower in this 45 foot cross-timbered area
because it was an area of lower clearance where miners tend to
duck their heads down.
(Tr. 153}. Therefore, the respondent was
of the opinion that hanging the cord in a lower position made it
easier for miners to reach.
(Tr. 130-140). While I find that
this concern is outweighed by the risk of hand injury associated
with placing the hand under the belt and rollers, the
respondent 1 s rationale for the placement of the cord is an

1860

appropriate mitigating factor. Therefore, the underlying degree
of negligence associated with Citation No. 3382643 shall be
reduced to low. The gravity, however, in view of the risk of
significant injury, remains serious. Consequently, I am
assessing a civil penalty of $200 for this citation.
Qocket No. SE 92-456

As previously noted, the parties moved to settle citation
No. 3382587 which is the subject of Docket No. SE 92-456. The
respondent has agreed to pay a civil penalty of $75 in return for
the Secretary's agreement to remove the significant and
substantial designation. The motion to approve settlement was
granted on the record and is incorporated herein.
ORDER
Based on the above findi.ngs of fact and conclusion of law,
it IS ORDERED that:
1.

Citation No. 3382646 IS VACATED.

2. Citation No. 3382643 IS AFFIRMED although the underlying
negligence is reduced from moderate to low.
3. The settlement motion concerning Citation No. 3382587
IS APPROVED and the significant and substantial designation
XS DELETED.
4. The respondent SHALL PAY a total civil penalty of $275
within 30 days of the date of this decision. Upon receipt of
paymentr these cases ARE DISMISSED.

.

Jerold Feldman
Administrative Law Judge
Distribution:
Thomas A. Groomso Esq.u Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Imogene A. King, Esq., Frantz, McConnell & Seymour, P.
Knoxville, TN 37901 (Certified Mail)
dcp

1861

o. Box 39,

nDBIU\L Kl:D 8U'B'1'Y UD BBALD UVJ:ft COIIIlXSSI:OB

OPPICE OP ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th PLOOR
5203 LEESBURG PIKB
FALLS CHURCH, VIRGINIA 22041

SEP 1 01993
JIM WALTER RESOURCES, INC.,
Contestant

:

v.

.
..
0

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

e

.

CONTEST PROCEEDINGS
Docket No. SE 93-335-R
Citation No. 3007642;
6/2/93
Docket No. SE 93-336-R
Citation No. 3007641:
6/2/93
Mine No. 3

Q

:

Mine ID 01-00758

DECISION
Appearances:

R. Stanley Morrow, Esq, Jim Walter Resources, Inc.,
and David M. Smith, Esq., Maynard, Cooper, Frierson
& Gale, Birmingham, Alabama, for Contestant;
William Lawson, Esq., Office of the Solicitor,
U. s. Department of Labor, Birmingham, Alabama, for
Respondent.

These contest proceedings were initially heard on June 18,
in Hoover, Alabama. On July 6 6 1993, I issued a Partial
Pecision formalizing my bench decision in this proceeding.
Partial Decision in Jim Walter Resources, Inc., 15 FMSHRC 1447.
The Partial Decision identified the following two central issues:
~1) whether a citation issued for
violative dust concentration
condition; which
promptly corrected, in the absence of any
recurrenceu provides a basis for recision and modification of the
dust control plan under section 303(o) of the Mine Safety and
Health Act of 1977 0 30 U~S.C. § 863(o)u or section 75.370(a) (1)
of the regulationsu 30 C.F.R. § 75.370(a)(l): and (2) in the
absence of any evidence of repeated or continuing dust concentration violations, whether an operator's unilateral decision to
increase the air velocity at the working face and the water
pressure of the sprays in excess of the minimum requirements in
the existing dust control plan, in view of increased production
output, provides a basis for modifying the existing dust control
plan to reflect higher minimum air velocity and water pressure
standards.
1993u

1862

The Partial Decision granted the contestant's contest with
respect to the first issue and temporarily reinstated the
existing dust control plans. In the Partial pecision, citing
feabody Coal company, 15 FMSHRC 381, 386 (March 1993): Carbon
County Coal Company, 7 FMSHRC 1367 (September 1985): and Zeigler
Coal Co. y. Kleppe, 536 F.2d 398, 404-407 (D.C. Cir. 1976), I
noted that it is well established that the statutory language in
aection 30J(o) of the Mine Act requires mine ventilation or dust
control plan provisions to address specific conditions at a
particular mine. Partial Pecision, 15 FMSHRC at 1449. Thus, the
Secretary is precluded from imposing general rules applicable to
all mines in the plan approval process. ~ I concluded,
therefore, that the Secretary lacks the statutory authority to
routinely rescind dust control plans whenever a violation of the
respirable dust concentration standard in section 70.100(a), 30
C.F.R. § 70.100(a) is detected. ~ at 1450.
At the hearing, the parties expressed a willingness to
pursue settlement of the remaining issue. Resolution of this
issue depends upon whether the minimum air velocity and water
pressure standards contained in the existing dust control plans
are adequate dust suppression measures for the continuous mining
or longwall operations at the individual mine in question. The
Secretary bears the burden of proof concerning the suitability of
minimum dust control plan provisions. Peabody, 15 FMSHRC at 388.
However, it is incumbent on the operator to explain why these
minimum provisions are sufficient if, as in the instant case, the
operator operates with air velocity and/or water pressure levels
that are considerably greater than the minimum standards. In
attempting to resolve these issues, it is fundamental that the
parties must engage in good faith negotiations. ~
In ~ letter dated August 25 8 1993 8 the Secretary now moves
vacate the two contested citationsu thus, reinstating the
rescinded dust control plans. Counsel for the contestant has
informed me, albeit reluctantly, that he interposes no objection
to the Secretary's motion to vacate.
~o

I also note 8 parentheticallyu that declaratory relief in
this instance is inappropriate. The conditions noted at the
respondent 8 s No. 3 Mine during the March 10, 1993e inspection
which provided the basis for this proceeding are not static and
are subject to change. Therefore, there is no substantial
likelihood of recurrence of this alleged enforcement harm as dust
control plans are mine specific and relate to current mine
operations and conditions. See Mid-continent Resources. Inc ••
and QMWA, 12 FMSHRC 949, 956 (May 1990). Consequently, the
Secretary's motion shall be granted.

1863

ORDBR
Accordingly, the Secretary's motion to vacate the subject
Citation Nos. 3007641 and 3007642 ZS GRANTED and IT IS ORDERED
that these contest proceedings as they relate to these citations
aaB DISMISSED WITH PREJUDICE against the Secretary.

cJ!c. Q;) § }

=::,.

Jerold Feldman
Administrative Law Judge
Distribution:
R. Stanley Morrow, Esq., Jim Walter Resources, P.
Brookwood, AL 3~444 (Certifi~~ Mail}

o. Box 133,

David M. Smith, Esq., Maynard, Cooper, & Gale,
2400 AmSouthjHarbert Plaza, 1901 6th Avenue North, Birmingham, AL
35203 (Certified Mail)
William Lawson, Esq., Office of the Solicitor, U. s. Department
of Labor, 2015 2nd Avenue North, Suite 201, Birmingham, AL 35203
(Certified Mail)
dcp

1864

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

SEP 1 01993
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 91-1964
A.C. No. 46-01867-03904

v.

Docket No. WEVA 91-1965
A.C. No. 46-01867-03905

CONSOLIDATION COAL COMPANY,
Respondent

Blacksville No. 1 Mine

DECISION ON REMAND

Before:

Judge Weisberger

The Commission, in its decision in this case, (Consolidation
Coal Company, 15 FMSHRC 1555 {August 21, 1993)), remanded this
proceeding to me to determine whether the violation of 30 C.F.R.
§ 75.1707, set forth in Citation No. 3315803 was significant and
substantial, and to a~sess a civil penalty.
I.

Significant and Substantial

According to MSHA Inspector Richard Gene Jones, the
violation herein is significant and substantial in that¥ in the
event of a fire in the track entry, with no air-tight separation
between the intake and track entries, smoke and carbon monoxide
would enter the intake entry. Workers inby would thus be exposed
to the hazard of smoke inhalation and carbon monoxide poisoning.
He also indicated that a decrease in visibility caused by smoke
could cause lack of orientation, which could result in
contusions. Jones noted the existence of fire sources such as a
high voltage cable, the liberation of methane which would
accumulate in a roof cavity, 1 and the fact that the gauge of the
trolley track is incorrect which causes the trolley pole to jump
off the wire, and hit the trolley which causes arcing.
The Commission has set forth in Mathies Coal Company
6 FMSHRC 1 (1984) the elements that must be established to prove
a violation is significant and substantial as follows:

1

The mine is classified by MSHA as one that liberates more
than one million cubic feet of methane in a 24 hour period.

1865

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. (6 FMSHRC, supra, at 3-4.)
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 inan event in which there
is an injury. 11 u.s. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984}. We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. u.s. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984).
In analyzing whether it has been established that the
violation was significant and substantial, I note the finding by
the Commission of the violation by Respondent of Section 75.1707.
Further I find that the violation contributed to the hazard of
miners
the intake entry being exposed to the dangers of smoke,
should a fire occur in the track entry. Also, the hazards of
smoke exposure could certainly result in serious injury as set
forth in Jones' uncontradicted testimony.
The issue for resolution, is the likelihood of a fire
causing smoke to course from the track entry, through the hole in
the stopping at issue, to the intake entry.
(See, BethEnergy
Mines, Inc.~ 14 FMSHRC 1232~ (August 4, 1992)). In other words,
since the hole in the stopping contributed to a hazard only in
the event of a fire,
must be established that the event of the
fire was reasonably likely to have occurred.
(See, BethEnergy,
supra) .
The mere existence of various ~tential fire sources cannot
support a conclusion that the event of a fire was reasonably
likely to have occurred in the normal course of mining
operations. There is no evidence of the existence of any fault
in the condition of the high voltage cable. Further, on crossexamination, Jones indicated that the portion of the track where
the gauge is not correct is not within the P8 Panel, i.e., the

1866

panel at issue. 2 He conceded that, accordingly, a fire started
by arcing caused by the incorrect track gauge should not affect
the P8 panel in issue, unless the fire gets out of control.
There is no evidence that this would be reasonably likely to
occur. Also, contrary to Petitioner's assertion in his brief
that the mine in question has a history of mine fires, the only
evidence on this point is the testimony of Jones that there was a
fire causing fatalities in 1972. I thus conclude that, inasmuch
as the record fails to establish the likelihood of a hazard
producing event i.e., a fire, it must be concluded that the
violation herein was not significant and substantial (See,
Mathies Coal Co., supra).
II.

Civil Penalty

In evaluating the negligence, if any, of the Respondent with
regard to the specific violation cited herein, not much weight is
placed on the fact that on various dates in January and February,
1991, Jones issued citations to Respondent alleging violations of
Section 75.1707, supra, with regard to stoppings located at other
longwall panels. The issuance of these citations is accorded
little weight in evaluating whether Respondent knew or reasonably
should have known of the existence of the specific hole in the
stopping in question.
Jones indicated that the hole in the stopping was "very
obvious" (Tr. 48) and the stopping was approximately 20 to 25
feet from where a person would get off the mantrip. However,
there was no evidence as to how long the hole existed prior to
the inspection, nor is there any evidence to indicate what caused
the hole.
I find, for the above reasons, that there is insufficient
evidence to base a conclusion that the Respondent's negligence
herein was more than a slight degree. Taking into account the
remaining factors in Section 110(i) as stipulated to by the
parties, I conclude that a penalty of $100 is appropriate for the
violation cited in Citation No. 3315803.
The parties stipulated that the decision regarding Citation
No. 3315803 would apply to Citation No. 3315865 (Tr.7).
Accordingly, consistent with my decision regarding Citation No.
3315803, I find that the violation cited in Citation No. 3315865
was not significant and substantial, and that a penalty of $100
is appropriate.

2

The parties stipulated that the site of the incorrectly
gauged trolley track is between the P7 and P8 Panels.

1867

ORDER

It is ORDERED that, within 30 days of this decision,
Respondent shall pay $200 as a civil penalty for the violations
found herein.
It is further ORDERED that Citation Nos. 3315803 and 3315865
be amended to reflect the fact that the violations cited therein
are not significant and substantial.

((L_~

Avram Weisberger
Administrative Law Judge

Distribution:
Susan E. Long, Esq., Roberts. Wilson, Esq., Office of the
Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Room
516, Arlington, VA 22203 (Certified Mail)
Daniel E. Rogers, Esq., Consol Inc., Consol Plaza, 1800
Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail)
nb

1868

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

SEP 13 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

PENALTY PROCEEDING
.. CIVIL
Docket No. KENT 93-376
A.C. No. 15-09568-03607

v.

Stone Mine No. 2

BELL COUNTY COAL CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Thomas A. Grooms, Esquire, Office of the
Solicitor, u.s. Department of Labor, Nashville,
Tennessee, for Petitioner;
Gary G. Thompsen, Safety Coordinator, Bell County
Coal Corporation, Middlesboro, Kentucky, for
Respondent

Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act). At hearing, Petitioner filed
a motion to approve a settlement agreement and to dismiss the
case. Respondent has agreed to pay the proposed penalty of
$1,400 in full. I have considered the representations and
documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in Section llO(i) of the Act.
WHEREFORE, the motion for a approval of settlem nt is
and it is ORDERED that Respondent pay a pen ty of
$1,400 within 30 days of this order.

GRANTED

I

I

Distribution~

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

icitor,
nes Road,
Suite B-201, Nashville, TN 37215 (Certi ied Mail)

u.s. Department of Labor, 2002 Richard

Gary G. Thompson, Safety Coordinator, Bell County Coal
Corp., P.O. Box 758, Middlesboro, KY 40965 (Certified Mail)
\lh
1869

I'BDBDJ\L IUD SUETY UD llBAL'l'B J1BVXB1f COHK:ISSXOII
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 S(YLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SEP 151993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

. CIVIL PENALTY PROCEEDING
Docket No. KENT 93-227
A.C. No. 15-06702-03554

v.

:

M-2 Mine

ASH TRUCKING COMPANY, INC.,
Respondent
DECISION
Appearances:

Donna E. Sonner, Esquire, Office of the
Solicitor, u.s. Department of Labor, Nashville,
Tennessee, for Petitioner;
Rodney E. Buttermore, Jr., Esquire, Buttermore,
Turner, Lawson and Boggs, Harlan, Kentucky,
for Respondent

Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act). At hearing, Petitioner filed
a motion to approve a settlement agreement and to dismiss the
case. A reduction in penalty from $16,800 to $12,200 was proposed. I have considered the representations and documentation
submitted in this case, and I conclude that the proffered
settlement is appropriate under the criteria set forth in
Section llO(i) of the Acto
WHEREFORE, the motion for approval of settlement is
GRANTEDu and it is ORDERED that Respondent pay a penalty of
12~200 in three equal installments -- the first insta lment
90 days from the date of this order ~nd the
'ng
lments 30 days and 60 days,! therea/rer.

;vt'1;t ~A~'-'-Gary Mel ck
Administ ative

1870

Distribution:
Donna E. Sonner, Esq., Office of the Solicitor,
u.s. Depart~ent of Labor, 2002 Richard Jones Road,
suite B-201, Nashville, TN 37215-2862 (Certified Mail)
Rodney E. Buttermore, Jr., Esq., Buttermore, Turner,
.
Lawson and Boggs, P.O. Box 935, Harlan, KY 40831 (Certified Mail)
\lh

1871

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

SEP 1 51993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
. Docket No. KENT 92-577
A.C. No. 15-11986-03552 A

Vo

Mine No. 211
BOBBY LEE PRICE, Employed by
CROCKETT COAL COMPANY,
Respondent
DECISION
Appearances:

J. Philip Smith, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia, for
the Petitioner;
Bobby Lee Price, Elkhorn City, Kentucky, pro se,
for the Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding filed by the petitioner
against the respondent pursuant to section 110{c) of the Federal
Mine Safety and Health Act of 1977 0 30 u.s.c. 820(c), charging
the respondent with an alleged nknowing" violation of mandatory
safety standard 30 C.F.R. § 75.220. At the time of the alleged
violation, the respondent was employed by the Crockett Coal
Company as a section foreman.
The respondent contested the alleged violation and filed an
answer to the petitioner;s proposal for assessment of a civil
penalty
the amount of $600. A hearing was held in Pikeville,
Kentuckyv and the parties appeared and participated fully
therein. The parties waived the filing of posthearing briefs,
but I have considered their arguments made on the record in the
course of the hearing in my adjudication of this matter.
Issues
The principal issue presented in this case is whether or not
the respondent knowingly authorized, ordered, or carried out the
alleged violation. If he did, the next question presented is the
appropriate civil penalty which should be assessed against the
respondent taking into account the civil penalty criteria found

1872

in Section 110(i) of the Act. Additional issues raised by the
parties are disposed of in the course of this decision.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of
1977, P.L. 95-164.

2.

Section 110(c) of the 1977 Act, 30 u.s.c.
§ 820(c).

3.

commission Rules, 29 C.F.R.

§

2700.1 et seq.

Discussion
Section 104(a) "S&S" Citation No. 3519163, issued on
January 14, 1991, by MSHA Inspector Ronald Hayes, cites a
violation of 30 C.F.R. § 75.220, and the cited condition or
practice is described as follows:
The approved roof control plan is not being complied
with on the MMU 001-0, which is in the process of
extracting pillars, because the pillar block which was
located between the No's 6 and 7 entries was almost
entirely extracted. The cuts taken from this coal
block were approximately 30 feet wide and from
(approximately) 25 to 30 feet deep. The block of coal
was approximately 50 feet by 50 feet, and after the
extraction only 5 small coal blocks were left ranging
from approximately 2 to 4 feet wide and from
(approximately) 6 to 8 feet long. All the cuts were
intersected with one another, leaving nothing in the
center of the block on the outby side of it.
The approved roof control states that the extraction of
pillars shall be a 3 cut plan. The cuts shall be
20 feet wide and 20 feet deep. Also, a butt off was
driven to the right of the No. 8 entry approximately
60 feet outby the last open crosscuts~ where advance
mining was stopped for the extraction of pillars. This
butt off was approximately 60 to 70 feet deep and the
left side of the butt off was extracted beginning at
the end of the but off and continuing back to within
10 feet of the No. 8 entry. This extraction was from
50 to 60 feet wide and the cuts were from 20 to 25 feet
deep and only 8 wooden roof supports were installed in
the center of the extraction. Also, the No.'s 3 thru 8
headings were advanced approximately 60 to 70 feet inby
the last open crosscut. These entries also had coal
extracted from the left and right side of the entries.
The extraction began in the face of the entries and
continued outby to within approximately 10 feet of the

1873

last open crosscut. The cuts taken from them were
approximately 25 to 30 feet deep and only a few wooden
roof supports were installed.
The approved roof control plan does not have any kind
of provisions included in it that shows this kind of
extraction of coal. This citation is in conjunction
with 107-a order No. 3519162, and therefore no abate
time is set and will not be abated until the provisions
written in the 107-a Order No. 3519162 are mete
Petitioner's Testimony and Evidence
MSHA Inspector Ronald Hayes identified a copy of an MSHA
Mine Legal Identify Form concerning the Crockett Coal Company,
and he confirmed that this company was in fact a corporation
(Exhibit P-1, Tr. 10). Mr. Hayes also identified a copy of the
section 104(a) citation that he issued on January 14, 1991, as 11 a
contributing factor" to a s.~.ction 107 (a) order that he issued on
that same day (Exhibits P-2 and P-3; Tr. 1-18). He also
identified copies of the approved mine roof control plan which
was in effect at the time he issued the citation, and a copy of a
map and sketch that he made documenting his observations of the
pillar area that had been extracted {Exhibits P-4 and P-5;
Tr. 20-22).
The respondent Bobby Lee Price agreed that the Crockett Coal
Company was a corporation, but he stated that the company has
been sold and that he was no longer in its employ. However, he
confirmed that he was employed by crockett Coal at the time the
citation was issued by Mr. Hayes (Tr. 10). He also confirmed
that he was familiar with the conditions or practices cited by
Mr.
as a violation 9 as well as the roof control plan relied
on
cited by the inspector (Tr. l9p 22).
Inspector Hayes ·testified that MSHA Inspector James Osborne,
who was regularly assigned to the mine in question, was not in
the office at the time "a tip" was received from a Kentucky
Department of Mines inspector that he had 19 observed a mining
practice that wasn"t right 90 and had withdrawn miners& Since
Mr" Osborne was not available, the acting office supervisor asked
Mro Hayes to go to the mine for an inspection. After making a
copy of the mine pillar plan, Mro Hayes went to the mine and met
with the state inspector. Mro Hayes then informed mine manager
Robert Jessee that he was going underground to conduct an
inspection. He also met with Mr. Price, and proceeded
underground in the company of Mr. Jessee, Mr. Price, and the
state inspector (Tr. 23-26).
Mr. Hayes explained the observations he made during his
inspection, and he stated that the coal pillar between the No. 6
and No. 7 entry had been extracted and that the remaining blocks

1874

of coal were two to four feet wide and approximately six to seven
feet long. He also observed that very few timbers had been set
and that there were "hill seams" in the roof. Based on his
observations, he informed Mr. Jessee and Mr. Price that he was
issuing a section 107(a) order (Tr. 27). Mr. Hayes stated that
he discussed the size of the remaining pillar stumps that were
left after the coal was extracted, and that Mr. Jessee and
Mr. Price agreed with his calculations. Mr. Hayes stated that he
did not go into the stump areas to measure them because "all the
coal was gone, it was dangerous up there", and that he was not
going inby roof support (Tr. 28).
Mr. Hayes stated that the three-cut pillar roof control plan
required that eight-foot corners be left when a pillar is mined,
and that the blocks on the bottom part of the pillar are to be
eight-foot square. He stated that Mr. Price was supervising the
work when the pillar was cut and when he asked Mr. Price about
it, "he said he had instructed those men to cut that pillar block
that way". Mr. Hayes identified a copy of an MSHA "Possible
Knowing and Willful Violation Review Form" that he filled out and
submitted documenting the admission made to him by Mr. Price
{Exhibit P-6; Tr. 30-31). Mr. Hayes stated that he also recorded
in his notes Mr. Price's statement that "he instructed his miner
man to extract the pillar between six and seven entries"
(Tr. 31) •
Mr. Hayes testified that Mr. Price had a copy of the roof
control plan in his pocket and admitted that he was familiar with
it and knew the roof control requirements (Tr. 32). Mr. Hayes
explained how the pillar block should have been cut under. the
approved plan, and he stated that all of the cuts had intersected
together, and there was no eight foot block left on the corner as
required (Tr. 34). He also believed that the roof cracks and
hill seams, standing alonev constituted adverse roof conditions,
and that coupled with the smaller blocks that were left, he
believed there was a possibility of "a major roof fall and
multiple deaths" from these conditions {Tr. 35). He explained
that the pillar blocks are designed to hold up the roof, and the
more that is taken out, the more weight will likely cause a roof
fall (Tro 37).
Mr. Hayes stated that he could not prove that men went inby
roof support, and he confirmed that a remote controlled miner was
used and
could take a 35-foot cut without exposing anyone past
the roof bolts. Howeveru men were in the entry, and if the roof
fails above the anchorage and falls out, it will crack all the
way to the pillar. The potential for a roof fall, and the
presence of the miner operator and shuttle cars in the area
prompted him to issue the imminent danger order {Tr. 38-39). He
also explained several additional conditions that contributed to
that order (Tr. 39-40).

1875

Mr. Hayes stated that Mr. Price gave him the following
explanation as to why the pillars were mined the way he found
them (Tr. 42):
A.

They stopped mining here and they had
projections to go on. According to Mr. Price
when I had -- that is why they stopped this
and did this. And according to Mr. Price -- I
asked him why they did cut this pillar this
way and that was to get a good roof fall,
because they needed to get quick coal,
because they were getting out of this mine.
They were pulling out of it to possibly sell
or trade, or whatever to another company or
corporation that was to come in. But they
were shutting down.

Q.

They were trying to get out all of the coal
they could?

A.

Trying to get all the coal the could at that time.

Mr. Hayes stated he based his "high negligence" finding on
the fact that Mr. Price "told them to cut the pillar that waytt,
and since he was the foreman, "he was responsible" (Tr. 45).
On cross-examination, Mr. Hayes confirmed that he did not
measure the pillar cuts and just estimated them (Tr. 46).
Mr. Price stated that "we set back and looked at the pillars
where they had been cutting them and we agreed that the blocks
were smaller than eight foot" (Tr. 46). Inspector Hayes agreed
that this was true (Tr. 46). Mr. Price also stated that he told
MSHA'S special investigator that the blocks "were approximately
from three to six foot and maybe bigger in behind, where we
couldn°t see them" (Tr. 47). Mr. Hayes stated that "we had no
idea what the backside looked like", and that "we were talking
about these front two and this one in the center" (Tr. 47).
Mr. Hayes explained the timbering that he observed, and he
confirmed that some of the timbers were properly in place, but
that others that were required were missing and not set
(Tr. 50-51).
Mr. Hayes explained the dangers in leaving only two to four
foot pillar corners, instead of the required roof control plan
eight square foot corners as follows at (Tr. 62-63):
A.

My opinion, the way this block was pulled
with these stress cracks in the roof which is
making adverse conditions, which makes a roof
fall potential larger than what it would

1876

normally be, it would have been an imminent
danger to those people setting those timbers
or mining the next block of coal right here.
Because if this had failed, with the stress
cracks in that mine, there is a very great
possibility it would have overrode these
breaker timbers and come in on those people
that was over here mining this area right
here, this block which had to be mined next.
Q.

So there was a potential there for rock
falling on people.

A.

Yes, there was.

Q.

Inby unsupported roof.

A.

Inby -- If they were under supported roof, it was a
potential they woql,d fall in on them. Yes, it was.
And, at (Tr.

The potential was there.

68):

Q.

These stress cracks were in the area that
we're concerned with here.

A.

Yes, they were all over the place.

Q.

And what your point is, is that leaving these
pillars this small with those added stress
cracks there created --

A.

And going by the minimum plan and not doing
anything else to help that adverse condition
of the stress cracksp yesu it caused an
imminent danger.

Charlie D. Bryant, testified that on January 14, 1991, he
was employed at the mine as a continuous miner helper. He
identified a copy of a statement that he made to MSHA Special
Investigator James Frazier when Mr. Frazier intreviewed him on
April 9, 1991 (Exhibit P-7: Tr. 70-72). Mr. Bryant confirmed
that he was present when Mr. Hayes inspected the mine on
January 14, 1991, and he confirmed that he made the following
statement to Mr. Frazier (Tr. 72-73)~
Q.

"We pulled one block before the inspector got
to the section. We took the cuts two sumps
wide (twenty-two feet). All of the cuts in the
block cut together. Bobby Price told us to
leave a three to four-foot stump on the
corner." Is that correct?

1877

An

Yes, Sir.

Q.

Is that the correct statement of --

A.

Yes.

Q.

Did he give these instructions to you, and who
else, sir?

A.

Me and the continuous miner operator which was
-- Darrell Caudill, I think, was the day that
it was started. Darrell Caudill or Thomas
Wright was there. But it was given
specifically, yes.

Q.

And is that how you all cut them?

A.

Yes, Sir.

Q.

You just left three or four-foot stumps?

A.

Yes, Sir.

Q.

And do you know, in fact, that it's supposed to
be eight foot square?

A.

I was told by Thomas Wright it was, yes, sir.

Q.

So you knew this was supposed to be eight foot
square, but you cut it the way you were told to
by Mr. --

Mr. Bryant explained how the pillar cuts were madep and he
confirmed :c.ha·t he made no measurements of the cuts because "I
wasnit going to go in there and measure it, but they told us to
leave a three to four-foot stump on the end" (Tr. 74-76).
MSHA Inspector James E. FrazierG testified that he conducted
special investigation
Mr. Priceus case. He stated that the
produced at the mine
quesiton was transported to the
company that leased the coal to the Crockett Coal Company, and it
was then shipped out of state. At the time of his investigation,
approximately 15 employees worked at the mine, and it produced
800 tons a shift, and Mr. Price worked as a section foreman
• 77-79).

Mr. Frazier identified a copy of a statement made to him by
Mr. Price when he interviewed him on April 3, 1991 (Exhibit P-8),
and he confirmed that Mr. Price signed the statement, and that he
gave him an opportunity to review the statement and to make any

1878

corrections. Petitioner's counsel quoted the following relevant
portions of Mr. Price's statement (Tr. 80-81):
Q.

I direct your attention to page two there.
Near the top of the page there or somewhere
near the top, it says, 11 I came back to work on
January 9, 1991. I had been off since
January 3, 1991. When I came back to work on
January 9, 1991, the headings had been winged
from right to left over to number two, I think.
I worked on the left side developing x-cut ••• 11
I take it that means crosscuts. Is that right?

A.

Yes, Sir.

Q.

" ••• And entries and on the right side doing the
same. The shift of January 3, 1991, our
section had not started retreat work. On
Monday, January 14, 1991, my crew started
retreat mining the pillars.

"I knew the pillar plan ••. this mine had for a
continuous miner. They had a three-cut plan.
We were supposed to cut twenty two wide. I
followed the cut sequence according to the
plan. All of the timbers were set, plus five
more additional timbers than the plan required.
I stayed with the miner during the entire
extraction of this pillar. This pillar block
was supposed to be forty feet times forty feet.
This area was developed on sixty-foot centers.
The miner was operated with remote control.
11

We cut this block the same way we had for
years. No emphasis had ever been placed on
leaving eight-foot stumps on the bottom end of
the blocks. It was always hard to turn a place
and maintain the eight-foot stumps. This stump
we had left was in a triangular slope. It was
probably only two feet in some place, but I'm
sure it was thicker in some of it."
01

Mro Frazier confirmed the accuracy of the statements made by
Mr. Price, and confirmed that Mr. Price admitted that the stumps
were not eight foot, that he knew the roof control plan, and that
the stumps were only two feet in some places (Tr. 82).
Mr. Frazier was of the opinion that this was a violation of the
roof control plan, that Mr. Price 11 virtually admitted" a
violation of the plan, and was highly negligent because "he knew
the plan and he knew the bottom stumps were less than eight feet"
(Tr. 84). Based on all of his interviews and his mining

1879

experience, Mr. Frazier was of the op1n1.on that "the stress hill
seams and the small blocks of coal being left, it was a dangerous
situation" (Tro 84).

Mr. Price acknowledged that he made the statement to
Mr. Frazier (Tr. 84), but stated as follows at (Tr. 85):
Mr. Price: On these blocks here, and stumps and things
we were talking about here, and where it says I told
the miner man, you know, to cut them this way, I told
the miner operator to go to that area where we were
going to start extracting pillars that morning. I did
not tell him to cut them and leave two or three-foot
stumpsv which these stumps were bigger. But I did make
this statement to Mr. Frazier.
Respondent 8 s Testimony and Evidence
Respondent Bobby Lee Price., confirmed that a state mine
inspector was at the mine prior to the inspection by Mr. Hayes
and when the upper area of the section was extracted. Mr. Price
stated that mine superintendent Jessee told him that after the
state inspector left the mine, the remaining two blocks of coal
would be mined. Mr. Price denied that he instructed Mr. Bryant
to cut the blocks and leave two and three foot stumps. Mr. Price
stated that he informed his crew that "we're going to start
pillaring this morning. This is the block over here we cut"
(Tr. 92).
Mr. Price stated that in the three-and-one-half years that
he mined pillars in the mine, he always installed extra roof
support around the pillars. He also stated that "I never left a
pillar in that mine that my miner man was cutting on that I
didn il t. stay right with himi1 • He denied ever putting any of his
men ou·c from under roof support and stated that he has
"threatened to fire people over it" (Tr. 92-94).
Mr. Price stated that the mine roof was composed of
sandstone: and that nthose little cracks 11 needed to be
continually strapped. He conceded that the cracks "were from
fingernails to some of them was a foot and a half, two feet
wide' 0 • However, he indicated that each time a bolt was
installed, a strap was also installed across the crack. He
confirmed the presence of stress cracks in the roof at the pillar
extraction locations in question, but stated that extra timbers
were always installed and that "we always tried to protect my
men'' (Tr. 95). He stated that timbers were installed in the
pillar extraction areas in question according to the roof plan
(Tr. 96~97) •
Mr. Price stated that in the three-and-one-half years he has
pulled pillars in the mine, the citation issued by Mr. Hayes was

1880

the first one he ever received (Tr. 98). He stated that after
the citation was issued, he reviewed the roof control plan with
his men to the satisfaction of the inspectors, and the men were
allowed to return to work (Tr. 99). He explained that it was
difficult not to cut through when the miner is cutting an angle
and that the miner operator cannot tell when the miner head will
cut through a place (Tr. 101). When the miner ripper head
continued to cut through the blocks, Mr. Price said he quit the
mine nbecause the superintendent, he just wanted so much stuffcrazy stuff done. I wouldn't do it" (Tr. 101). He confirmed that
after the citation was issued and terminated, the remaining
blocks of coal were cut in essentially the same manner as they
were when Inspector Hayes was there, and although some blocks
avwere not cut through as bad 81 , some of them fell through when
they were penetrated by the miner head (Tr. 102).
Mr. Price disagreed with the sketch of the cited area
prepared by Inspector Hayes and stated that timbers were placed
in several areas where the sketch shows none installed,
and several of the entries on, ·the sketch "had not been pushed up"
(Tr. 103-104).
On cross-examination, Mr. Price stated that he was currently
employed by the Husky Coal Company as a foreman and electrician
at a salary of $125 a day. He denied that he instructed
Mr. Bryant and the miner operator to cut the corner of the block
so there was only three or four feet left. He stated that "It's
like I told Mr. Frazier. I told them to go cut the block. You
know, I didn't tell them to steal every bit of coal that was in
the block" (Tr. 104-105). Mr. Price further stated that
Mr. Bryant "lied about me telling him to go over there and cut
and leave two to three-foot blocks" (Tr. 105). He further stated
that Mr. Bryant was an unsafe worker and that "I had to ride him
from daylight to dark 19 and "rode charlie pretty hard on safetyn
for not setting timbers or exposing his feet and legs while
operating the miner machine (Tr. 106).
Mr. Price denied telling Mr. Hayes that he told his men to
cut the block the way it was cut. He stated that "I told them to
go and cut the pillars 1v. I said "Boys, we're going to start
pillar extraction this morning. Take the miner over there and
start on that pillar. That is what I told them" (Tr. 106).
Mr. Price confirmed that he was present when the pillars
cited by Mr. Hayes were cut. He admitted that the pillars were
cut together "not only this time, but other times. But maybe it
was, just like I said, maybe not, as bad as this one" (Tr. 113).
He further stated that "when the miner went in those pillars, you
could not keep it from cutting one way or the other into the
other blocks. And this is the first time that I was ever wrote
anything on those pillars like that" (Tr. 113).

1881

Mr. Price conceded that he told Mr. Frazier that some of the
blocks could have been cut only two feet wide "where you was
looking into the end of them" (Tr. 114). Inspector Hayes did not
disagree that cutting the block at an angle would leave the
corner less than eight feet, but he did not believe that it would
result in a five foot corner or a corner from two to four feet
(Tr. 116).
Findings and Conclusions
Fact of Violation
The respondent Bobby Lee Price is charged with a "knowing"
violation of mandatory safety standard 30 C.F.R. § 75.220, for
failing to follow the approved mine roof control plan with
respect to the extraction of certain pillar areas described in
detail in the citation issued by Inspector Hayes. The inspector
cited the conditions after going to the mine and conducting an
inspection in response to information given to MSHA by a state
mine inspector with respect to certain pillar extraction that was
taking place at the upper end of the section. Although the
petitioner does not dispute Mr. Price's assertion that he was not
at the mine when the state inspector stopped this activity and
withdrew miners from the mine, the petitioner pointed out that
the Crockett Coal Company and three of its "agents" (two foremen
and the mine manager) were charged with violations of section
75.220, for mining the entries cited by the state inspectors in
violation of the roof control plan, and that the corporate
respondent (Crockett Coal Company), and its cited agents did not
contest the violations and paid the proposed penalty assessments.
Counsel further pointed out that in this case Mr. Price is only
charged with a violation in connection with the mining of the
lar blocks cited by Inspector Hayes (Tr" 45, 58-59, 86-87).
The petitionervs counsel stated that the essence of the
violation in this case is the fact that the cited coal pillar
blocks were cut too small, leaving corners that were less than
eight foot for roof support as required by the approved mine roof
control plan (Tr. 52). Mr. Price has not rebutted the credible
testimony of Inspector Hayes with respect to the existence of the
cited violative conditions. Indeed, Mr. Price did not deny that
the pillar blocks which were extracted during his supervisory
work shift left corners less than the eight feet required by the
roof control plan (Tr. 52). Further, Mr. Price acknowledged that
he told Inspector Frazier that the pillar blocks had been cut in
such a manner leaving stumps or corners less than eight feet
as required by the plan, and only two feet in some places
(Tr. 84-85). Under all of these circumstances, I conclude and
find that the petitioner has established a violation of section
77.220, by a clear preponderance of all of the credible evidence
and testimony adduced in this matter, and the citation IS
AFFIRMED.

1882

The next question presented is whether or not the petitioner
has proved that Mr. Price "knowingly" authorized, ordered or
carried out the violation. section 110(c) of the Act, 30 U.s.c.
§ 820(c), provides in relevant part as follows:
Whenever a corporate operator violates a mandatory
health or safety standard • • • , any director, officer,
or agent of such corporation who knowingly authorized,
ordered, or carried out such violation, • • • shall be
subject to the same civil penalties, fines, and
imprisonment that may be imposed upon a person under
subsections (a) and (d) of this section.
The Commission has defined the term "knowingly" as used in
the statutory predecessor to section 110(c), in Kenny Richardson
v. Secretary of Labor, 3 FMSHRC 8 (January 1981), aff'd 669 F.2d
632 (6th Cir. 1982), cert denied, 461 u.s. 928 (1983), as
follows:
"Knowingly," as used in·the Act, does not have any
meaning of bad faith or evil purpose or criminal
intent. Its meaning is rather that 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 . • • • We believe
this interpretation is consistent with both the
statutory language and the remedial intent of the Coal
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 condition, he has acted
knowingly and in a manner contrary to the remedial
nature of the statute. 3 FMSHRC 16.
In Secretary of Labor CMSHAl v. Bethenergy Mines, Inc., et
al., 14 FMSHRC 1232 (August 1992), the Commission reaffirmed its·
prior holding in Kenny Richardson, supra, and stated that "the
proper legal inquiry for purposes of determining liability under
section 110(c) of the Act is whether the corporate agent "knew or
had reason to know" of a violative condition, and that the
Secretary must prove only that the cited individual knowingly
acted and not that he knowingly violated the law, 14 FMSHRC 1245.
Inspector Hayes testified that when he spoke with Mr. Price
on the day of his inspection after issuing the citation,
Mr. Price admitted that he had instructed his men to cut the
pillar the way Mr. Hayes found it, and that he (Price) was aware
of the roof control plan when this work was done. Inspector
Hayes confirmed that he noted Mr. Price's admissions in an MSHA
form that is used by an inspector to recommend a 11 possible

1883

knowing/willful violation" investigation (Exhibit P-6), and that
he also noted in his notes that Mr. Price instructed his miner
man to extract the pillar between the No. 6 and 7 entries
(Tro 30-31).

Continuous Miner Helper Charlie Bryant who was present
during Mr. Hayes' inspection of January 14, 1991, confirmed a
prior statement that he had made to special investigator Frazier
that Mr. Price instructed him and the continuous miner helper to
cut the pillar blocks and to leave a three to four-foot stump on
the corner. Mr. Bryant testified that he was told that an eightfoot square corner was required but that the stump in question
was cut the way he was instructed.
Special Investigator Frazier produced a copy of a signed
statement by Mr. Price in which he admits that he was aware of
the roof control plan and that the block that was cut on
January 14, 1991, was cut "the way we had for years", that no
emphasis had ever been placed.on leaving eight-foot stumps, and
that the cited stump "was probably only two feet in some place"
(Exhibit P-7).
Mr. Price vehemently denied that he ever instructed
Mr. Bryant and the miner operator to specifically leave two or
three-foot blocks when mining the pillars in question. Mr. Price
also denied telling Inspector Hayes that he instructed his men
"to cut the block the way it was cut". Howt:!vt::u::, i•Ir. Price
acknowledged the accuracy of the statements that he made to
Special Investigator Frazier. Mr. Price also confirmed that he
assigned his crew the task of cutting the pillars in question on
January l4p 1991, and that he was present when they were cut the
way that Inspector Hayes found them. Mr. Price also admitted
that he told Mr. Frazier that some of the blocks could have been
two feet wide, and he admitted that the cited coal
were cut together on January 14, 1991, as well as on
previous occasions.
Mr. Priceus principal defense in this case is his concern
over the gravity findings made by MSHA's office of assessments
that "the violation could have contributed to the cause of a roof
fall accident" (Tr. 52). Mr. Price denied that he ever
knowinglyu on January 14, 1991, or at any other time in his
mining career, exposed members of his crew to any hazardous roof
fallso Mro Price also denied that any of the miners on his crew
worked inby roof support on January 14, 1991, as stated in MSHA's
gravity findings (Tr. 54). Inspector Hayes confirmed that he
made no such findings, and that his citation does not include any
allegations .of miners working inby roof support (Tr. 54-55).
I conclude and find that Mr. Price's concerns about MSHA's
gravity findings in connection with the proposed penalty
assessment are irrelevant to the issue of whether he "knowingly"

1884

violated the cited standard section 75.220. Further, after
careful consideration of all of the testimony and evidence in
this case, including the aforementioned admissions by Mr. Price,
and the unrebutted testimony of the credible witnesses presented
by the petitioner in support of its case, I conclude and find
that Mr. Price knew that the pillars cited by Inspector Hayes
were being cut in such a manner on January 14, 1991, as to leave
less than the eight-foot corners required by the approved roof
control plan. I further conclude and find that Mr. Price had
knowledge of the roof control plan requirements for leaving
eight-foot wide corners as the pillar blocks were being
extracted, and that notwithstanding this knowledge on his part,
Mr. Price permitted the cited pillars to be cut and extracted in
a manner contrary to the approved plan. Under all of these
circumstances, I conclude and find that the petitioner has
established a "knowing" violation on the part of Mr. Price within.
the meaning of section 110(c) of the Act, and the Commission's
precedent decisions.
Gravity
Inspector Hayes testified that the roof cracks and "hill
seams" that were present in the cited area where Mr. Price and
his crew were working constituted adverse roof conditions, and
that coupled with the small corner blocks that were left during
the extraction of the pillars, Mr. Hayes believed that there was
a possibility of a major roof fall exposing the miners to fatal
injuries as a result of the cited conditions. Mr. Hayes
determined that serious and permanently disabling injuries were
highly likely as a result of the cited conditions, and he
concluded that the violation was "significant and substantial".
Furtheru given the presence of miners and equipment in the cited
area, and his concern about a potential roof fallu Mr. Hayes
issued a section 107(a) imminent danger order in conjunction with
the citationo The petitioner's counsel stated that the imminent
danger order is not at issue in this case, but that it was
relevant to any gravity determination (Tr. 33). I conclude and
find that the violation was serious. I also conclude and find
that the inspector~'s "S&S 11 finding was justified, and it is
affirmedo
Negligence

r conclude and find that Mr. Price's knowing violation
supports the inspector 8 s determination that the violation
resulted from a high degree of negligence.
History of Prior Violations
The petitioner's counsel confirmed that Mr. Price has not
previously been charged with any other section llO(c) violations
(Tr. 87) .

1885

Good Faith Abatement
The record reflects that the violation was abated on
January 15, 1991, a day after the citation was issued, and that
all underground employees were retrained on the approved roof
control plan before resuming work underground. Petitioner's
counsel confirmed that the mine was subsequently abandoned in
1991.
Civil Penalty Assessment
Mr. Price confirmed that he is gainfully employed, and in
the absence of any evidence to the contrary, I cannot conclude
that the payment of the civil penalty that I have assessed for
the violation will adversely jeopardize Mr. Price's financial
situation.
The petitioner's counsel requested that the initial proposed
civil penalty assessment of ,$600 against Mr. Price be increased
to $1,000, because "this evidence shows that this was an
extremely reckless thing on his part that could have endangered
a lot of men" (Tr. 86). After further consideration of this
request, IT IS DENIED.
on the basis of the aforementioned findings and conclusions,
and taking into account the civil penalty assessment criteria
found in section llO(i) of the Act, I conclude and find that the
initial proposed civil penalty assessment of $600 is reasonable
and appropriate for the violation which has been affirmed.
ORDER
The respondent Bobby Lee Price IS ORDERED to pay a civil
penalty assessment of six-hundred dollars ($600) for the
violation which has been affirmed in this matter. Payment is to
be lade to MSHA within thirty (30) days of the date of this
decision and order, and upon receipt of payment, this matter is
dismissed.

~K{ia~
Administrative Law Judge

Distribution:
J. Philip Smith, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203

(Certified Mail)
Mr. Bobby Price, P.O. Box 1014, Elkhorn City, KY
(Certified Mail)
/ml

1886

41522

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

SEP 1 51993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
:

Docket No. KENT 93-295
A.C. No. 15-14074-03630

:

Docket No. KENT 93-296
A.C. No. 15-14074-03631

v.

PEABODY COAL COMPANY,

MARTWICK UNDERGROUND

Respondent

DECISION
Appearances:

MaryBeth Bernui, Esq., Office of the Solicitor,
u.s. Department of Labor, Nashville, Tennessee,
for Petitioner;
David R. Joest, Esq., Peabody Coal
Company, Henderson, Kentucky, for Respondent.

Before:

Judge Amchan

These cases are before me upon petitions for the assessment
of civil penalties pursuant to § 105 and 110 of the Federal Mine
Safety and Health Act of 1977. Docket Kent 93-295 concerns one
citation, number 3417307, which alleges a violation of
30 C.F.R. 75.316 for Respondent's failure to comply with its
approved ventilation plan. More specifically, the citation
alleges that when the continuous miner and its scrubber were not
operating, air circulation at the inby end of the line brattice
near the continuous miner was significantly less than what was
required by Respondent's approved ventilation plan. A $267 civil
penalty was proposed.
As discussed herein, I affirm the
citation as a "non-significant and substantial" violation of the
Act and assess a $267 penalty.
Docket Kent 93-296 concerns citation 3546915 alleging a
violation of 30 C.F.R. 75.1105 1 in that air ventilating a battery
charging station was vented to the surface of the mine rather
than to the return air shaft. An order, numbered 3546916, was
issued pursuant to § 104(b) of the Act for Respondent's alleged
failure to timely abate citation 3546915.
A $1,855 penalty was
proposed for these alleged violations. I affirm citation number
1

The requirements of this standard have been modified by the
provisions of 30 C.F.R. 75.340(a)(1) since the inspection.
1887

3546915 as a "non-significant and substantial" violation and
assess a $10 penalty. I vacate order number 3546916 on the
grounds that it was unreasonable for MSHA to require abatement
before the effective date of its new ventilation standards given
the unique circumstances of this case.
Docket Kent 93-296

On october 22, 1992, Louis w. Stanley, an MSHA supervisory
ventilation specialist inspected the Martwick mine as part of a
review of Respondent's ventilation plan. During this inspection
he determined that the air ventilating a battery charging station
located 300 feet inby from the bottom of the slope of the mine
was vented to the surface rather than to the return air shaft, as
required by 30 C.F.R. 75.1105 (Tr. 11- 18). 2 That standard
provided:
Underground transformer stations, battery-charging
stations, substations, compressor stations, shops, and
permanent pumps shall be housed in fire-proof.
structures or areas. Air currents used to ventilate
structures or areas enclosing electrical installations
shall be coursed directly into the return ... (emphasis
added)
Mr. Stanley issued Respondent citation 3546915, which
required that the violation be terminated by 8:00 a.m. on October
24, 1992 (Tr. 15). The danger presented by this violation in
Mr. Stanley's view is that, if a fire were to break out at the
battery charging station, the smoke would travel up the slope to
the entry of the mine. Miners going in and out of the mine,
particularly during a shift change, could be exposed to a hazard
(Tr. 46 9 57= 58)c

Upon receiving the citation, Respondent installed curtains
and a 4-inch diameter pipe to direct the air current into the
return (Tr. 65- 71). After this proved unsuccessful, Respondent
installed a four inch exhaust fan to draw the air from the
battery charging station into the pipe (Tr. 73- 79). However,
when Mr. Stanley returned on October 26, 1992, he tested the air
flow with smoke and it still vented up the slope towards the
surface of the mine {Tr. 16- 18). As a result of this test,
Mr. Stanley issued order number 3546916 pursuant to § 104(b) of
the Act, alleging a failure to timely abate his original
citation. Afterwards, Respondent abated the alleged violation by
moving the battery charging station (Tr. 18).
2

There were 5 battery chargers at this station, which was
one of approximately 15 battery charging stations in the mine.
The chargers are electrically powered and are used to charge the
batteries on equipment such as man trips (Tr. 25- 26).

1888

on November 16, 1992, less than a month after the inspection
in this case, new MSHA ventilation standards for underground coal
mines went into effect. Among these standards was one at
30 C.F.R. 75.340(a) (1), which provides that battery charging
stations shall be "[v]entilated by intake air that is coursed
into a return air course or to the surface and that is not used
to ventilate working places • • • (emphasis added)." Petitioner
concedes that Respondent would not have been in violation of the
Act with regard to the instant citation and order after
November 16, 1992 (Tr. 38- 39).
The new standard was promulgated as a final rule on May 15,
1992, with an effective date of August 16, 1992. on August 6,
1992, MSHA delayed the effective date of the new ventilation
standards until November 16, 1992, due primarily to difficulties
some mine operators were having coming into compliance with some
of the new regulations by August 16. No specific reference to
30 C.F.R. 75.340(a) (1) was made in regard to the delay.
57 FR 34683-4 (August 6, 1992J .•
When promulgating the final rule in May 1992, MSHA provided
the following explanation for revising the requirements of
§ 75.1105:
Unlike the existing rule, however, the final rule does
not require that the intake air be coursed "directly"
to the return. This existing requirement has caused
much confusion under the existing rule. The final rule
clarifies that the intake air installation may not also
be used to ventilate active working places. Thus, the
air may be coursed into other entries before being
coursed into a return, if the air is never used to
ventilate a working place. Since this air will not be
used to ventilate face areas, the final rule provides
the same level of protection as the existing rule.
57 FR 20888-9 (May 15, 1992).
Inspector Stanley believes the revision allowing the venting
of battery charging stations to the surface to be ill-advised
(Tr" 40)o Howeveru MSHA has made a finding that this practice
poses no threat to employee safety and health. MSHA and
Inspector Stanley are bound by this determination, which was made
prior to the issuance of the citations in this case.
Respondent clearly violated the requirements of the Mine Act
as they existed on October 22 and 26, 1992. However, this
violation was of a purely technical nature--given the agency~s
formal determination that the venting of battery charging
stations to the surface is an acceptable practice. In assessing
a civil penalty, the Commission is required to consider the
operator's history of previous violations, the size of its
business, its negligence, the effect on its ability to stay in

1889

business, the gravity of the violation and the operator's good
faith in achieving rapid compliance after being notified of the
violation.
In view of MSHA's prior determination that the violation was
of no consequence to employee safety, I find a minimal penalty of
$10 is appropriate for this violation. 3 I also find that
Respondent's negligence was extremely low in view of the fact
that MSHA had already determined that venting to the surface was
a safe practice when this violation occurred.
Section 104 (a) of the Act provides that a citation shall
fix a reasonable time for the abatement of a violation. I hereby
vacate order 3546916 because I do not think it was reasonable to
require abatement of citation 3546915 prior to the effective date
of the new MSHA ventilation regulations. It is important to note
that the new regulations were final rules, not proposed rules at
the time of the inspection in this case, and MSHA had published
its rationale for the change'in the specific regulation under
which Respondent had been cited.
Although, the effective date of the new regulations had been
postponed, MSHA's rationale for the delay had nothing to do with
the propriety of§ 75.340(a) (1). Moreover, there was no
indication, as of October 22, 1992, that § 75.340 was the subject
of any legal challenge or that it was being reconsidered by the
Agency. Given the unique circumstances of this case, the
reasonable course for MSHA would have been to allow Respondent
three weeks to abate the original violation in order to determine
whether it still was under a legal obligation to do so.
Docket KENT 93-295

On November 19u 1992u MSHA Inspector Darold Gamblin
conducted a regular quarterly inspection of the Martwick mine.
During this inspection he encountered a employee working with a
continuous mining machine in the number 2 entry of the number 1
working sectiono Inspector Gamblin sampled the air flow at a
point 25 feet behind the cutting edge of the machine, at the end
of the line curtainf near where the employee was working. When
the continuous miner was not operating the air flow was 2,340
cubic feet per minute (cfm) (Tr. 86- 87). Respondent's approved
ventilation plan (Exh. G-4) required an air flow of 5,000 cfm,
before the continuous miner was turned on, at the inby end of the
line brattice. (Exh. G-4, page 4, paragraph# 2).
As a result of this air flow reading, Inspector Gamblin
issued Respondent citation 3417307, alleging a significant and
3
The statute requires that a penalty be assessed for each
violation. Tazco, Inc., 3 FMSHRC 1895 (August 1981).

1890

substantial violation of 30 C.F.R. 75.316. This regulation,
which requires operator compliance with approved ventilation
plans4 ,was superseded by 30 C.F.R. 75.370, just three days before
the inspection in this matter. Since the requirements of §
75.370 are essentially the same as the former 75.316, I will~
sponte amend the pleadings to conform to the evidence. See
cyprus Empire Corporation, 12 FMSHRC 911,916 (May 1990); Rule
15(b) of the Federal Rules of Civil Procedure. Section 75.370
(a)(1) requires that "[t]he operator shall develop and follow a
ventilation plan approved by the district manager ••• "
Respondent has conceded that it was in violation of the Act
but takes issue with the characterization of the violation as
"significant and substantial" (Respondent's Answer, paragraph 5,
Respondent's Response to the Prehearing Order, paragraph 2). Th~
elements of a "significant and substantial" violation have been
set forth by the Commission as follows:
(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. Mathies Coal Co., 6
FMSHRC 1, 3-4 (January 1984).
There is no question that the evidence in this case
satisfies the first and fourth elements of the Mathies test.
Respondent has conceded the violation and there is no question
that injuries, to which the violated requirement is directed,
inhalation of excessive amounts of respirable coal dust and fires
and explosions due to excessive concentrations of methane, are of
a serious nature (Tr" 93).
What is at issue are the second and third elements of the
Mathies test. Respondent's evidence suggests that, due to the
air flow capacity of the scrubber on the continuous miner, the
inadequate ventilation prior to the scrubber's operation either
presents no hazard, or that injury or illness is sufficiently
unlikely that the violation cannot be properly considered
09
significant and substantial 10 See Cement Division , National
Gypsum Co .• 3 FMSHRC 822 (April 1981).
The Commission in National Gypsum has held that a
nsignificant and substantial" violation is not established by
merely showing that the chance of an injury or illness resulting
4

Zeigler Coal co. v. Kleppe, 536 F.2d 398 (D.C. Cir., 1976);
Secretary v. Mid-Continent Coal and Coke co., 3 FMSHRC 2502
(1981).

1891

from the violation is more than remote or speculative. In this
case the Secretary has simply not established how likely an
accident would be when the inby end of the line brattice is
ventilated by 2,340 cfm of air prior to operation of the
scrubber 1 rather than 5,000 cfm.
Assuming that the provision for 5,000 cfm is important,
the Secretary's evidence leaves unanswered the question of what
degree of noncompliance makes an accident or injury "reasonably
likely". To rule in favor of the Secretary, I would have to
infer that any amount of ventilation less than 5,000 cfm creates
a substantial likelihood of injury or illness. I find no basis
for such an inference. It would seem likely that a small
deviation from the 5,000 cfm requirement would not create a
reasonable likelihood of injury or illness. If I were to credit
the Secretary's witnesses, I might infer that at some point
inadequate ventilation prior to operation of the scrubber would
create such a reasonable likelihood. However, there is simply no
evidence in this record tying the 2,340 cfm measured by Inspector
Gamblin to the likelihood of injury or illness.
Inspector Gamblin testified that he believed injury or
illness "reasonably likely" (Tr. 93- 98). However, this
testimony is purely conclusory and I have no idea what underlies
Gamblin's opinion. There is also testimony by MSHA ventilation
supervisor Louis Stanley that he would not approve a ventilation
plan in a deep cut mine such as Martwick unless it contained a
requirement for 5,000 cfm of air before the scrubber is activated
(Tr. 191). From this testimony, it appears that Mr. Stanley
believes that without that quantity of air flow, injury from a
fire or explosion, or inhalation of excessive respirable dust is
oossible. Howeveru there is an insufficient rationale in this
record for me t.o conclude from his testimony that there is a
reasonable likelihood of injury or illness when the ventilation
at the end of the line curtain is 2,340 cfm, rather than 5,000
cfm.
The Secretaryu at pages 9 and 10 of its Post-Trial Brief,
relies on U. s. Steel Mining Co.u 7 FMSHRC 1125 (August 1985), a
case
which the Commission reversed an ALJ decision that 2,400
cfm of air at a working face was not a "significant and
substantial~' violation.
In that case the operator's ventilation
plan also required 5uOOO cfm. I find the u. s. Steel decision
easily distinguishable from the instant case and not particularly
helpful in meeting the Secretary's evidentiary burden. The
requirement of u.s. Steel's ventilation plan was for 5,000 cfm
once mining commenced and the commission decision relies heavily
on its conclusion that ignition of methane was reasonably likely
given the ignition source provided by the arcing and sparking of
the continuous miner. In the instant case where the requirement
of 5,000 cfm applied before the operation of the continuous miner
and the evidence indicates that ventilation of the working face

1892

would have been much greater than 2,340 cfm when cutting
operations began, I find no basis for relying on the U. s. Steel
decision to conclude that an accident was reasonably likely on
the record before me.
Controverting the Secretary's evidence is the testimony of
Respondent's witness, Randy Wolfe. Mr. Wolfe, a supervisory
safety engineer employed by Respondent, testified that the
scrubber on the continuous miner will adequately eliminate any
hazard from dust or methane without any other source of
ventilation. He concluded that there is no reasonable likelihood
of injury or illness resulting the fact that the air flow prior
to operation of the scrubber was less than s,ooo cfm--assuming
that conditions remained the same as they were on the
November 19, 1992 (Tr. 171- 172). Mr. Wolfe also testified that
2,340 cfm airflow to the inby end of the line brattice was
adequate to eliminate any hazard of methane ignition prior to the
activation of the continuous miner (Tr. 161- 162).
''••·

The preponderance of the evidence suggests that the lack of
5,000 cfm of air prior to operation of the scrubber increased the
likelihood of serious injury or illness to some extent. In this
regard, I consider it significant that Mr. Wolfe's opinion with
regard to the absence of a reasonable likelihood of injury and
illness was qualified by the proviso that conditions remain the
same. The Hartwick mine is a one that is subject to spot
inspections by MSHA due to its propensity for methane release. I
infer from this fact, and the requirements of Respondent's plan,
that maintaining s,ooo cfm prior to operation of the scrubber is
necessary to insure employee safety.s However, these facts alone
do not warrant the conclusion that when the airflow is 2,340 cfm,
prior to the operation of the scrubber 9 injury or illness is
reasonably likelyo
I assess the $267 penalty proposed by the Secretary. I note
first that this penalty is very low--particularly considering the
Respondentws size. Peabody has stipulated that it is a large
operator and a reasonable penalty will not affect its ability to
5I do not accord great weight to Mr. Wolfe's testimony
regarding the adequacy of the 2,340 cfm. Mr. Wolfe's highest
level of education is an Associates degree in Applied Science
from Madisonvilleu Kentucky Community College. His testimony was
largely based on a paper prepared by Dr. John Campbell. Little
information was provided regarding Dr. Campbell's qualifications
other than that he had worked for Respondent in the past.
Indeed, it is not even clear in what field Dr. Campbell holds his
doctorate. There is also no indication as to whether Dr.
Campbell's conclusions are widely held in the scientific
community or whether his paper was ever subjected to an impartial
peer review.

1893

remain in business.
I believe that the gravity of the
violation, particularly the seriousness of an injury if one
occurred, warrants a $267 penalty. On the other hand, I find
that no higher penalty is warranted given the low to moderate
negligence that caused the violation and Respondent's prompt
abatement of the violation by extending and tightening its line
curtains to increase the air flow (Tr. 98- 99). I see no reason
to either raise or lower the penalty on the basis of Respondent's
history of previous violations.
ORDER

citation No. 3417307 (Docket Kent 93-295) is affirmed as a
"non-significant and substantial" violation and a $267 civil
penalty is assessed. Citation No. 3546915 is affirmed as a "nonsignificant and substantial" violation and a ten ($10) penalty is
assessed. Order No. 3546916 is vacated. Within thirty (30) days
of the date of this decision, Respondent is ordered to pay a
civil penalty of $277 for th&violations found herein.

~~

Administrative Law Judge
703-756-4572

Distribution:
MaryBeth Bernui, Esq., Office of the Solicitor, u.s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
David Ro Joestu Esqou Peabody Coal Companyu 1951 Barrett Courtu
PoOo Box 199Du Henderson, KY 42420 (Certified Mail)
/jf

1894

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

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

SEP 161993

.

CIVIL PENALTY PROCEEDING

..

Docket No. WEVA 92-1012
A.C. No. 46-01455-03895

v.

Osage No. 3 Mine

CONSOLIDATION COAL COMPANY,
Respondent

.
DECISION

Appearances:

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

u.s. Department of Labor, Arlington, Virginia
for Petitioner;
Daniel E. Rogers, Esq., Consol Incorporated,
Pittsburgh, Pennsylvania for Respondent.

Before:

Judge Barbour
STATEMENT 01' THE CASE

This case is before me upon the petition for assessment of
civil penalties filed by the Secretary of Labor ("Secretary")
against Consolidation Coal Company ("Consol"} pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of
1977 (the "Mine Act" or "Act"). 30 U.S.C. 815 and 820. The
petition alleges two violations of certain mandatory safety
standards for underground coal mines found in Part 75 of
Volume 30 of the Code of Federal Regulations ("C.F.R."). The
alleged violations are set forth in orders of withdrawal issued
pursuant to section 104(d) (2) of the Act. 30 u.s.c. § 814(d) (2).
In addition to the allegations of violation, the orders assert
the violations each constituted significant and substantial
contributions to mine safety hazards ("S&S" violations) resulting
from Consol 1 s unwarrantable failure to comply with the cited
standards. Consol answered, denying the Secretary 1 s allegations,
and hearings were held in Morgantown, West Virginia. 1
The issues for decision are whether the violations existed
as charged and, if so, whether they were S&S in nature and the
result of Consol's unwarrantable failure to comply. In addition,

1

Because the case could not be heard in full during the time available,
the initial hearing was adjourned short of completion. It was reconvened
about one month later. Citations to the transcript of the first hearing are
signaled "Tr. I". Citations to the transcript of the second are signaled
•Tr. II".

1895

if violations are found, appropriate civil penalties must be
assessed.
At the close of the hearing counsels presented oral
summaries of their positions.
STIPULATIONS
Pertinent to this decision, the parties agreed as follows:

Tro

1.

Consol is the owner and operator of the Osage No. 3
Mine.

2.

Operations of Consol are subject to the
jurisdiction of Act.

3.

This proceeding is under the jurisdiction of the
Federal Mine Safety and Health Review Commission
("Commission") and its designated Administrative
Law Judge.

4.

Mine Safety and Health Administration ("MSHA")
Inspector Lynn Workley was acting in his official
capacity and as an authorized representative of the
Secretary when the orders at issue were served.

5.

True copies of each of the orders were served on
Consol or its agent as required by the Act.

6.

The total proposed penalty for the orders contested
by Consol in this proceeding will not affect
Consol's ability to continue in business.

8o

ORDER NO.

DATE

30 C.F.R. §

3718491

2/10/92

75.323

The order states~
The 7 butt intake escapeway was examined by
Ron Wyatt (certified foreman) on 1/23/92 and
he entered in the approved book that added
roof support is needed at 55 block from the
intake door to the return door. The report
was countersigned by Joe Statler[,] mine
foreman[,] and by Aaron Cage[,) assistant
super[intendent]; however no action has been
taken to correct this hazard.
Gov. Exh. 4.

1896

THE EVIDENCE
THE SECRETARY'S WJ:TIESS
LYD WORKLEY

MSHA Inspector Workley testified that on January 23, 1992,
during the course of an inspection of the Osage No. 3 Mine, he
traveled the 7 butt intake escapeway with Consol inspection
escort, Norman Hill, and UMWA representative, Ronald Schriver.
At No. 55 break {a crosscut) Workley saw that the roof was
sagging. In the crosscut Workley observed a diagonal crack from
the outby right hand rib of the escapeway to the inby left hand
rib.
(In other words, the crack extended across the entire
intersection of the escapeway entry and the crosscut. See Exh.
Gov. 7.) The crack was opened about a 1/2 inch. According to
Workley, the mine roof was deteriorating in the right and left
crosscut and coal had fallen from the roof at the corner where
the rib and roof met. Tr. I 22. Workley testified that he
believed the roof could have fallen at any time. Tr. I 45.
There were stoppings in the right and left crosscut and the
distance between the stoppings was approximately 100 feet. Id.;
Gov. Exh. 7. The intake entry and crosscut were each 15 feet
wide. Tr. I 52. 2
Workley believed that the condition of the
roof at the intersection was such that the miner who weekly
examined for hazardous conditions should have observed and
reported it.
Workley stated that at the time he saw the
condition he was not aware if the condition had been reported
and, at the suggestion of Hill, he decided to wait until he got
to the surface in order to check the weekly examination book (the
book wherein hazardous conditions noted during the weekly
examination are recorded)
Tr. I 23.
o

Upon checking, Workley found an entry in the book regarding
the condition had been made that day by Ronald Wyatt, the
midnight shift foreman who had examined the escapeway. Wyatt had
indicated that additional r.oof support was needed between the
stoppings in the No. 55 break. Tr. I 24.
Workley identified a copy of a page from the book. The page
is titled Emergency Escape Facilities and Escapeways Examined
(Weekly) and it states in pertinent part "1-23-93[,] 7 Butt Face
to 6 Butt Split[,] 55 Block From Track Door to Return Door Needs

2

Although Workley's sketch of the area shows the crosscut as intersecting
the entry at a 90 degree angle, Workley acknowledged that the crosscut
actually intersects at a 60 degree angle. When asked whether cutting
crosscuts on a 60 degree angle can reduce the danger of roof fall, he replied,
"It can." Tr. I 56; ~also Gov. Exh. 7.

1897

Additional Support[,] R. Wyatt [signature]" Gov. Exh. 6 at 2.
The page was countersigned by Joseph Statler, the mine foreman,
and by Aaron Gage, the assistant mine superintendent.
Workley testified that when he viewed the intersection he
noticed that two posts had been set at its outby right corner,
one on either side of the crack. Tr. I 25, 52.
(The posts are
depicted by small circles on Gov. Exh. 7.)
Workley believed the
posts were insufficient to properly support the roof. However,
he did not issue a citation at that time because Consol was
following the "correct procedure" in that Wyatt had traveled the
area as required, had noted the hazardous condition and had
recorded the condition in the book. Tr. I 24-25. Further,
Workley stated that when additional roof support is needed it
normally takes at least one shift to transport roof support
materials such as cribs and posts to an area and to arrange for
miners to come t~ the area and do the work. Tr. I 26. Workley
testified that after he reviewed the "Weekly Examination" book he
explained to Hill and Schriver his reasons for not writing a
citation and he left the mine.
Workley returned to the mine during the afternoon shift of
February 10 to conduct another inspection. This time Workley was
accompanied during his inspection by Consol representative Art
Jordan and miners' representative Eddie Cheslik. Workley
returned to the No. 55 break of the No. 7 butt intake escapeway.
Workley stated that he found conditions to be "almost exactly the
same" as they had been on January 23. Tr. I 27.
Workley told
Jordan and Chesl.ik lhal:. ht:! was issuing a section 104(a) citation
requiring installation of additional roof support and a section
104(d} (2) order of withdrawal for an unwarrantable failure to
c:~orrect the hazardous condition that had been recorded in the
\.:teel<ly examination book on January 23. Id.
After issuing the order, Workley checked the weekly
examination book and found an entry for January 30, 1991,
indicating that additional roof support was needed in the area of
the intersection. Workley identified a copy of the page bearing
\che entry. Gov. Exh. 6 at 4. (Workley read it into the record,
30/92 9 seven butt face to Moorsville, 55 block, track door to
I:eturn, needs added support." Tr. I 29.)
Workley believed the
entry indicated that between January 23 and 30 Consol had done
essentially nothing to correct the condition, even though Statler
had told him that a miner had been assigned to take corrective
action and that a couple of posts had been set at No. 55 block.
Tr

o

I 29 u 43.

Workley acknowledged there were still two posts present on
February 10, one set on each side of the crack at the outby right
corner. In addition, he acknowledged that there may have been
some posts in the crosscut on both January 23 and February 10.
Tr.I 30, 54. He indicated, however, that even if some posts had

1898

been set between January 23 and February 10, they did not correct
the hazardous condition, for he noted that to abate the condition
Consol had to install six cribs and twenty seven additional posts
in addition to whatever posts may have been there. Tr. I 31;
Gov. Exh. 6 at 5. In Workley's opinion the failure to correct
the condition of the roof in the intersection between January 23
and February 10 violated section 75. 323 because that standard
required reported hazardous conditions be corrected promptly.
Tr. I 32.
Workley believed failure to install the required roof
support had subjected persons traveling through the intersection
to the danger of injuries from roof fall and that such injuries
could range from quite serious to fatal. Tr. I 33. He also
believed it reasonably likely that a reasonably serious injury
would have occurred had mining continued. He noted some blocks
of head coal adjacent to the crack and measuring approximately
6 to 8 inches wide had fallen from the roof and that he had asked
Jordan and Cheslik not to go..under the area. Workley stated,
"I felt extremely uncomfortable getting under far enough to see
the crack and what more deterioration had taken place • • • "
Tr. I 41. Because of the sag in the roof, the amount of loose
rock and coal adjacent to the crack and the sloughage from the
top part of the ribs in the crosscuts, Workley believed parts of
the roof could have fallen at any time. Tr. I 42.
According to Workley, those miners likely to have been
injured were the miner who was required to travel the entry
weekly to examine the escapeway, the one or more section workers
who usually accompanied the examiner and persons using the
crosscut to travel from the return entry to the track entry.
Tr. I 43o Moreoveru if a section crew had to use the escapeway
to evacuate the mine~ the entire crew of up to six or seven
miners would have been subject to injury because they would have
had to pass under the defective roof on their way out of the
mine. Tr. I 35.
With regard to Consol's negligence in failing to correct the
conditionu Workley believed that because the mine foreman 5
Statlerv and the assistant superintendent, Gage, had
countersigned the page containing the report of the condition,
they were aware of it. Tr. I 35. Moreover, because the
condition was the same or worse on February 10 than it had been
on January 23, Workley believed that mine management had taken no
apparent action to correct the condition. This belief was
confirmed by the fact that there were no entries in the book to
show that any action had been taken, only an entry on January 30,
to indicate that the same condition still existed. Tr. I 37.
Mining had been taking place while the condition existed and
Workley concluded Consol had given priority to production, not to
maintenance of the roof in the escapeway. Tr. I 37-38.

1899

When asked whether he would have considered it a violation
if eight posts had been set in the area of the crack, Workley
replied that Consol would still have been in violation because it
took more than eight posts to eliminate the hazard. (He
specifically noted six cribs had been build for abatement
purposes and stated that the roof support given by one crib is
equal to that of a dozen posts. Tr. I 39.)
The condition was abated by the midnight crew on
February 11o Workley described the abatement as timely.
Tr.I 40.
CONSOL'S WITNESS
JOSEPH STATLER

statler is the general mine foreman at the Osage No. 3 Mine
and he held that position during Workley's inspections of January
and February 1992. Statler was asked what was done in response
to wyatt's entry of January 23, 1992, in the preshift examination
book -- the entry that indicated the subject area needed roof
support? He responded that immediately after the inspection on
January 23, Hill had told him that posts would have to be set in
the area. statler stated that he then told the foreman of the
next shift, the afternoon shift, to send people into the area, to
see what needed to be done and to do it. Tr. I 59-60. Statler
also stated that "as a backup" he left a note for the foreman of
the midnight shift -- the shift following the afternoon shift -to "make sure that • . • area was taken care of." Tr. I 60.
According to statler, the midnight shift foreman found that no
work had been done in the area during the afternoon shift, and he
therefore took two men into the area and the crew set eight
posts. Tr. ! 60-61.
statler identified a copy of a page from the mine work
book -- a book that is kept at the mine and referred to by
statler to determine what work has been done. Op. Exh. 1,
Tr. ! 61-62* Statler identified an entry for the midnight shift
on January 24, 1992. The entry states that miners Nabors and
Coburn had "picked up empty flat put in 6 Butt spur. Went to 8
west tailpiece replaced skirts. Changed rollers on 8 west belt.
Set 8 posts 7 Butt intake 55 block." Op. Exh. 1 (emphasis added};
see Tr. I 62. Statler also stated that he never went to the 55
block to see the posts the work book indicated had been set.
Tr. I 63.
Statler was then referred to the entry of January 30, 1992,
in the book used to record the results of the weekly examination
of escapeways. Gov. Exh. 6 at 4. The entry contains two
illegible, marked through words. Statler was of the opinion that
the weekly examiner, Parker, had written the words "none found"
in the column titled "Hazards Noted" and that these words had

1900

been scratched out subsequently. Statler noted that above the
scratched out words examiner William Varner had written the
phrase "55 block track door to Ret needs add support," which
Statler deciphered as "55 block track door to return needs
additional support." Gov. Exh 6 at 4; Tr. I 67. In Statler's
opinion, Varner had walked the entry with Parker, they had not
noticed the area as having been in need of any support but when
they came out of the mine and reviewed the book and saw that a
week earlier the area had been indicate as being in need of
support, they could not recall if roof supports had been
installed or not. Therefore, they erred on the side of safety
and marked out "none found" in the hazards column and added the
entry indicating additional support was needed. Statler was
candid that this was only speculation on his part. He had not
discussed the situation with either man. Tr. I 68-69.
Continuing his testimony regarding the weekly examination
book, statler noted that on February 6, 1992, Lee Wolf had
examined the 7 Butt face to the 6 Butt split -- an examination
that would have required him to walk through the subject
intersection -- and that he had indicated no hazards had been
found. Tr. I 70; Gov. Exh 6 at 3.
THE VIOLATION
Section 75.323 stated in part:
The mine foreman shall read and
countersign promptly • • • the weekly report
covering the examinations for hazardous
conditions. Where such reports disclose
hazardous conditions, they shall be corrected
promptly 3 ]
o [

Counsel for the Secretary argues the evidence establishes
the condition of the crosscut was hazardous, that it was observed
by Wyatt on January 23 and was recorded as a hazardous condition,
that it was not corrected until February 10, 1992, and that the
fifteen day delay in correcting the condition violated the
standardijs mandate that reported hazardous conditions be
corrected 81 promptly. ~~ Counsel further asserts that even if eight
posts were placed in the crosscut, as Consol alleges, the eight
posts did not abate the condition and constitute prompt
correctiono Tro I 76-79o
Counsel for Consol argues that within a day after the crack
in the roof was noted additional roof support (i.e., the eight
3
Section 75.323 was one of the ventilation regulations revised
effective August 15, 1992. 57 FR 20914 (March 15,1992). The requirements
of section 75.323 now are subsumed in section 75.364.

1901

posts) had been set and that this roof support was sufficient to
take care of the situation as it existed at the time, even though
it may have deteriorated subsequently and have required
additional work at a later date. Tr. I 84.
I conclude the violation existed as charged. I am persuaded
of this by the testimony as well as the fact that Consol chose
not to call witnesses whose testimony would have presumably
supported -- and strongly supported -- its argument.
There is no dispute about the condition found by Workley on
January 23. The roof in the intersection of the escapeway and
the crosscut was sagging and a 1/2 inch wide crack in the roof
ran diagonally across the intersection. In addition, the roof in
the crosscuts had deteriorated and coal had fallen at corners of
the intersection. There were two posts set at the outby corner
of the intersection of the escapeway and the crosscut, but they
were totally inadequate to support the roof. I credit Workley's
opinion that the condition of''the roof was such that it could it
presented a danger of falling, and I conclude therefore that the
condition in the escapeway was hazardous.
There is likewise no dispute that the condition was observed
and recorded and that the weekly report was read and
countersigned by mine foreman statler, as was then required by
section 75.323. Statler 's signature appears on the page bearing
Wyatt's January 23, 1992 report of the condition. Gov. Exh 6
at 2. Up to this point, Consol complied with section 75.323.
The problem, of course, is that the section also required
the hazardous condition to be "correctly promptly." I agree with
~ne Secretary that this was not done.
In my view, prompt
correction means that the hazardous condition must be corrected
~s quickly as
reasonably possible under all of the relevant
circumstances. Here, as Statler recognized, that would have
required the foreman on the shift after the hazardous condition
was reported on January 23 -- the afternoon shift -- to make
certain the roof was adequately supported. I credit statler's
testimony that he told the afternoon shift foreman to take care
of the situation. I also credit his testimony that the foreman
did nothingu and I conclude from this that the hazardous
condition was not corrected promptly and that the standard was
violated.
In addition, I conclude the violation was ongoing. Even if,
as Consol maintains, eight posts were set on the midnight shift,
the preponderance of the evidence is that they did not adequately
correct the condition. I am persuaded the entry in the weekly
examination book for January 30 that additional roof support was
needed accurately reflects that fact, and I do not believe that
the roof was deteriorating fast enough that whatever support was
installed on the midnight shift of January 23-24 was made

1902

obsolete. Rather, it seems clear to me that the condition of the
roof as it existed on January 23 was never fully corrected until
the violation was abated on February 11.
I especially note that
Consol did not call either Parker or Varner as witnesses,
although both had observed the condition of the roof on
January 30. Rather Consol relied solely upon the testimony of
Statler, a witness who never saw the condition at issue.
In reaching the conclusion the violation was continuing, I
discount the February 6 entry of mine examiner Wolf to the effect
that no hazards were found in the subject intersection. Without
actual testimony from Wolf, I cannot find that his written
comment outweighs the opinion of Workley, that Consol never
corrected the ongoing problem with the roof. Afterall, Workley
twice viewed the area. Moreover, the significant amount of roof
support that was necessary to eliminate the hazard adds credence
to Workley's opinion that the hazardous roof existed from
January 23 until February 11. I believe it extremely unlikely
that the roof would have been adequately supported and then
rapidly deteriorated to the point where such massive additional
roof support was needed.
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
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). 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. 4
Hereu I have found a violation of the cited safety standard.
Furtherv the violation posed a discrete safety hazard in that
failure to promptly correct the condition of the roof subjected
miners passing beneath it to the danger of injuries due to a roof
Mathies Coal co. 6 FMSHRC 1, 3-4 (January 1984), the
Commission stated:
[T)o establish that a violation of a mandatory
standard is significant and substantial under National
Gypsum the Secretary . • • 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 1nJury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.

1903

fall.
If such an accident had happened, the resulting injuries
were reasonably likely to be serious or even fatal.
Roof fall
is 9 afterall, a leading cause of serious injury and death in the
nation's underground coal mines.
As is frequently the case when the alleged S&S nature of a
violation is challenged, the question is whether the Secretary
has established a reasonable likelihood that the hazard
contributed to will result in an injury? Or, as the Commission
has put
whether the Secretary has established that "the
1
hazard contributed to will result in an event in which there is
an injury? 9' u.s. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984);
Halfway, Inc. 8 FMSHRC 12 (January 1984).
The relevant
frame for determining whether a reasonable
likelihood of injury existed includes both the time that the
violative condition existed prior to citation and the time that
it would have
sted if normal mining operations had continued.
Halfway, 8 FMSHRC at 12; U.S. Steel Mining Co., 7 FMSHRC 1125,
1130 (August 1985).
Counsel for the Secretary,maintains the testimony
establishes the area in ·which the violation existed was traveled
regularly by the weekly examiner and by other miners as well.
He argues that the area was not adequately supported from
January 23 through February 10 and that the condition was not
focused upon and corrected and thus would have been a continuing,
ongoing hazard had Workley not forced the issue. Therefore, he
views it as highly likely that the roof would have fallen and
injured someone had normal mining operations continued.
Tro I 79-80.
Counsel for Consol argues that miners "very, very rare[ly]"
affected roof and therefore that it was not
t.hat someone vJould have been injured.
'T:::::, :::: 85
}lfloreover,
observes that between January 23 and
10 nothing serious happened and that this speaks for
establishing that the probability of something
occurring was "ni
" Tr. I 86.
o

Consol 1 s arguments and conclude that Workley
the violation was S&S. The Secretary is right in
area in which the bad roof occurred was regularly
<;r~veled and
was traveled not only by the weekly examiner and
c,;homever accompanied him but by other miners as well.
under the roof on a regular basis in
the requirement that the area be examined for
haze.rdous conditions.
He was accompanied usually by at least one
of;:.her miner.
~1:oreover, as Workley noted, miners used the area to
between the track and return entries, as attested by the
man doors in the stoppings at both ends of the crosscut.
Fur~herf
the escapeway ever had to be used for its intended

1904

purpose, an entire section crew would have had to pass under the
area.
I have already found that the inadequately supported roof
existed between January 23 and February 10. Workley was
uncertain whether, as Statler maintained, up to eight posts had
been installed to support the roof, but I have agreed with
Workley that whether or not they were installed the hazard was
not alleviated.
I further conclude that the unsupported roof
would have continued to exist had normal mining operations
continued.
I accept counsel for the Secretary's argument that
the testimony fully supports the conclusion the condition was
only corrected because Workley cited the violation.
Workley, the
only witness to testify who had first hand knowledge of the
condition, stated that on February 10 the cited area was about
the same as it had been on January 23.
It was clear to Workley,
and it is clear to me, that Consol's correctional efforts were at
most woefully inadequate.
In this regard, Statler's testimony
and Consol's own records afford a compelling basis from which to
infer its indifference to the situation. The first foreman sent
by Statler to correct the condition did nothing, and Consol's
record of the weekly examination for hazardous conditions that
was conducted after the January 23 examination (the January 30
examination) indicates that additional support was still needed.
The implication Consol was indifferent to the condition is
inescapable. Given these factors, I fully agree with counsel for
the Secretary it was reasonably likely that "someone would have
gotten struck by rock from a roof fall." Tr. I 80.
The violation
was S&S.
In determining the gravity of the violation I must consider
both the potential hazard to the safety of the miners and the
likelihood of the hazard occurring. As has been noted, the
violation subjected miners to serious injury or death from a fall
of the roof.
In additionv given the extensive roof support that
had to be installed to correct the condition and the fact that
miners unquestionable traveled under the inadequately supported
roof, it was likely that a miner would have been involved in a
roof fall accident. 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. 1 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny &
Ohio Coal Corp., 9 FMSRHC 2007, 2010 (December 1987). The
Commission has explained that this determination is derived, in
part, from the ordinary meaning of "unwarrantable " ("not
justifiable" or "inexcusable"), "failure" ("neglect of an
assigned, expected or appropriate action 91 ) , and "negligence" (the

1905

failure to use such care as a reasonably prudent and careful
person would use, characterized by "inadvertence,"
"thoughtlessness," and "inattention"). Emery, 9 FMSHRC at 2001.
Counsel for the Secretary argues that Statler's failure to
go to the affected area and make certain the condition of the
roof was corrected was aggravated conduct on Consol's part.
Tr. I 81. Counsel for Consol counters that within a day after the
condition was first noted by Workley, the eight posts were set
and that this was sufficient to take care of the situation as it
existed at the time, even though it may have deteriorated later.
By promptly attending to the situation, consol did not exhibit
the kind of aggravated conduct that constitutes unwarrantable
failure. Tr. I 84-85.
In my view, Counsel for Consol is wrong. As I have found,
even if the eight po~ts w~rP set, they did not correct the
hazard. The roof in the area continued to be inadequately
supported until the violation was correctedr and Consol was well
aware of this in that the repQrt of the January 30 examination
for hazardous conditions specifically called for more roof
support. Still, nothing was done and ten days later, when
Workley again viewed the area it was in no better condition than
it had been on January 23. In knowing that the area had poor
roof and that its examiner had called for additional support, not
once but twice within a period of slightly more than two weeks,
and in failing to ensure the support was present even after it
had received a second "wakeup call," Consol exhibited the type of
heightened and inexcusable neglect that constitutes unwarrantable
failure.
It is likewise clear to me that Consol's failure to
adequately support the roof by February 10 was the result of its
lure to meet the standard of care required of it under the
circumstances and that its failure represented a high degree of
negligence.
ORDER NO.

DATE

30 CoFeR. S

3717961

2/20/92

75.301-4(a)

The order states:
The mean entry air velocity was calculated to
be 41.6 feet per minute in the crosscut 3 to
2 where the 7 butt continuous mining machine
was operated. A mean entry air velocity of
60 feet per minute is the minimum required to
dilute -- render harmless --and carry away
methane and respirable dust.
Gov. Exh. 9.

1906

THE EVIDENCE
THE SECRETARY'S WITNESSES
LYNN WORKLEY
Workley stated that he conducted another inspection at the
mine on February 20, 1992. During this inspection he was
accompanied by Bill Kun, a Consol safety escort and head of the
mine's safety department and by miners' representative, Larry
Numeric.
Tr. II 9-10. Workley arrived at the mine at
approximately 7:45 a.m. Before proceeding underground he met a
roof bolting machine operator who asked Workley to go the 7 butt
section and check the ventilation tubes because there was no
ventilation on the section. The miner's face was black with coal
dust.
Tr. II 10.
Workley went to the 7 butt section, a section where mining
was performed by a continuous mining machine ("continuous
miner"). Tr. II 11. Workley arrived on the section at
approximately 9: oo a.m.
Tr. '!I 42. · Mining was not taking place
when Workley arrived and none took place while he was there.
Tr. II 11, 39, 42.
Some miners were moving supplies and some
were in the process of completing a belt move that had been
started the previous shift. Tr. II 11, 51. Workley stated he
walked to the face of the section and had a conversation with the
section foreman, Louis Parker, and the continuous miner operator,
Joseph Jimmy. Workley asked Parker if he was ready to being
mining coal, and, according to Workley, Parker said, "yes."
Tr. II 11. 5 Workley stated that he then took an air reading in
the last ventilation tube in place in the face area. Workley
described the type of air reading he conducted as one as one in
which he used a magnehelic and Pitot tube. Id. 6

6
Later, Workley changed and supplemented his testimony regarding the place
where the conversation occurred. He stated that he and Parker spoke in the
intersection of the crosscut and the entry leading to the face ("E" on Gov.
Exh. 10). Because this area was near the auxiliary fan, most in the area,
himself included, were wearing ear protection at the time. Nonetheless,
Workley maintained that he and Parker were near enough easily to hear one
another. Tr. II 129-130.

"Pitot tube" is defined as a device that:
[C]onsists of two concentric tubes bent in an L shape.
In operation, the instrument is pointed in the
direction of air flow: the inner tube, open at the end
directed upstream, measures total head, and the outer
tube, perforated with small openings transverse to the
air flow, records static head. Each tube is connected
to a leg of a manometer, when reading velocity head.
(cent inued •.• )

1907

As a result of the air reading Workley determined the
of air in the last tube was far less than required.
testified h
test established a velocity of 3,574 cubic
minute ("cfm"). Since the area of the entry was 86
feet, Workley calculated the mean entry air velocity of
to be 41.6 feet per minute. 7 According to Workley,
75.301-4(a) of the regulations, which was in effect at
, required a mean entry air velocity of at least 60 feet
Tr . I I 12 , 14 .
Workley decided to issue an order of withdrawal after Parker
he was ready to mine coal. Had Parker stated that he
was not ready to mine, Workley would have issued a citation for a
of section 75.301-4(a) on the previous shift, the
shift, because in his opinion the mean entry a
\clas no more than 41 feet per minute toward the end of
ight shift. Tr. II 145. Workley issued the subject
::.04 (d.) (2) order of withdrawal to Kun at approximately
9~40 a.m."
Tr. II 13, 42; Gov. Exh. 9.
Workley identified a drawing he had made depicting the
subject area as it had existed on February 20, 1992.
Gov. Exh. 10.
Workley explained that the section was ventilated
by an exhaust system, in that air ventilating the face was sucked
by an
liary fan through tubing and away from the face.
In
other words, air coursed up the entry into the face area, crossed
the face and was exhausted out of the face area and through the
Tr. II 16. Workley testified that the tubing was
damaged and Workley was of the opinion that the
caused the insufficient ventilation. Tr. II 15.
The tubing, which was hung from the miner roof with steel
spads, was made of fiberglass and was assembled in a
::line regular sections. Each section tvas 10 feet long.
The regular sections of tubing were approximately
ll
wide. The section nearest the face

ooCOntinued)
of the Interior, A Dictionary of Mining, Mineral, and Related
6En at 828. Horkley explained that because there was low air
o~' ·::he section a magnehelic and Pitot tube reading \<Jas the only way
.:oL~ld determine the quantity of air drawn to the working face and
figure could calculate the mean entry air velocity coming up into
place.
Tr. II 12.
If the velocity of air on the working face had
:.:.e could have used an anemometer. Tr. II 40. Or, if another
been present to help conduct the inspection, he could have used a
nmoh:e c;loud6
Ido
described the "mean entry air velocity" as "[t]he average velocity
entire cross-sectional area of the entry." Workley took only one
th the Pitot tubes and he maintained that it was not necessary to
take more than one reading to calculate the mean entry air velocity.
~cro~s

~he

TJ:. E

t~0-4L

1908

was called the "peewee section" because it 1 s height and width
were smaller than the regular tubing. The peewee section was
17 1/2 inches high by 9 inches wide.
It slid into and out of the
larger tubing, making its length easily adjustable.
Tr. II 17.
An auxiliary fan was located in a crosscut outby the face.
Tubing extended from the fan up the entry leading to the face and
into the face area. At the corner of the crosscut in which the
fan was located and at the corner of the entry leading to the
face area the tubing made approximately 90 degree turns.
Workley measured the air volume by inserting the Pitot tube
into the peewee tube about five feet back from the end of the
peewee tube and about 14 feet outby the face. Tr. II 19, 65; "B"
on Gov. Exh. 10. Workley stated that he measured at this point
rather than at the end of the peewee tube because it was as close
as he could get to UH~ end of the tube and still get an accurate
air reading. Tr. II 63-65.
In WorkleyRs opinion, because the peewee tube slid into the
angle tube it was not possible for the peewee tube to be adjusted
as it normally would have been. Tr. II 18. Consequently, there
was a gap between the peewee tube and the regular size angle tube
and Workley maintained that there was loss of air where the
peewee tube slid into the angle tube and the loss diminished the
velocity of air that he measured, as did every other damaged
place in the tubing were air leaked into the tubing. As Workley
stated, "Each leak between the fan and [the] point [where he
measured the air] reduces the amount of air that•s shown in the
reading that 9 s being provided at the end of the ventilation
tube.~~
Tr. II 19. In Work ley 1 s opinion, he obtained an accurate
reading of the air at the end of the tube because there were no
leak between where he took the reading and the end of the peewee
tube. Tr. II 19-20.
Workley was asked about notations he had made on
Gov. Exh. lOg notations that indicated places where the tubing
was 91 mashed io or had 99 holes. 51 He stated that they depicted places
where his notes indicated the tubing had been "busted" during
frequent use and also where it had small multiple holes. At the
joint between the peewee tube and the angle tube Workley found a
gap at the top of the peewee tube that measured approximately
6 inches high by 2 inches wide" Wcrkley believed air that was
being sucked in·to the gap 'l.'lould have gotten no further than the
gap.
In other words, that air would not first have swept the
face as
was supposed to do. Tr" II 134-138i 140. At other
places Workley found a hole 3 inches high by 9 inches wide, as
well as two other holes large enough to stick a hand into.
Tr. II 21=22.
Workley stated that Parker told him mining had been done
during the midnight shift. Tr. II 68. Because, as the tubing

1909

was extended the velocity of air at the end of the tubing
dropped, Workley concluded that on some part of the midnight
shift, possibly the last hour and a half, the mean entry air
velocity dropped to the level he found it. Tr. II 22. However,
given the amount of coal dust he had seen on the miner's face,
the velocity may have been below 60 cfm for a longer period
because "short duration exposition would not cause that quantity
of float coal dust to stick to you." Tr. II 26. 8
Workley believed that due to the lack of a sufficient mean
entry air velocity excessive quantities of float coal dust were
likely to be generated in the face area, especially in the
working environment of the roof bolting machine and continuous
miner operators. Workley stated that breathing excessive
quantities of such dust can lead to pneumoconiosis, a potentially
fatal disease. Tr. II 26.
(Workley checked the continuous miner
and found the sp!"ay system 'I.<Tas operational. He could not think
of any other cause for excessive coal dust in the face area
beside inadequate ventilation. Tr. II 80.) Moreover, if mining
continued with an insufficient velocity of air, the contraction
of pneumoconiosis by such miners was reasonably likely.
Tr. II 27.
Further, Parker had told Workley he had been trying to get
mine management to furnish better tubing for two weeks, Workley
therefore believed it reasonably likely the condition would have
continued and that repeated shifts would have had to mine without
adequate ventilation. Tr. II 59-60.
In addition to the health hazard created by the violation
Workley feared the lack of adequate ventilation could result in a
fire or explosion. Because excessive quantities of float coal
dust were likely in the face area and because such dust could be
ignited f it. was Work ley 1 s opinion that miners in the face area
were exposed to the danger of burns and possible concussions,
especially miners roof bolting or operating the continuous miner.
Tr. II 27. An ignition source could have been the bits of the
continuous miner striking stone or hard rock at the face and
producing sparks. Tr. II 60. If such ignitions occurred,
injuries could have ranged from minor (burned eyebrows and facial
hair) to fatalr but under the conditions he observedp Workley
believed the ignitions would have caused sever burns.
Tr, !! 27-28.
He based his opinion on the fact that the auxiliary fan and
tubing had been left exactly as it been on the midnight shift,

3

0n cross examination Workley admitted he did not know how the miner had
gotten so dirty. He stated the miner might have been elsewhere on the section
than the face area. Tr. II 43.

1910

and the roof bolting machine operator's face indicated the
operator had been working in excessive quantities of float coal
dust for most of the midnight shift, and mining was about to
continue with no change in the ventilation system. Tr. II 29.
Moreover, Workley was of the view that an ignition was reasonably
likely because he had investigated such ignitions in face areas
at other mines in the area. Id.
Further, although Workley
only found .4 percent methane at the end of the tubing, if mining
had continued at some point it would have been reasonably likely
for methane to have reached the minimum explosive level of 5
percent. Tr. II 60, 73-74.
Turning to his belief the lack of adequate air velocity was
the result of unwarrantable failure on Consol's part, Workley
again noted that after the violation was cited Parker stated he
had been trying to get better tubing for two weeks.
Tr. II 30-31, 78-79.
(Workley maintained that Jimmy was present
when Parker told him this. Tr. II 52, 78. Workley could not
recall if Kun or Numeric were also present. Tr. 'II 52.) Further,
the miner with the black face told Workley he had complained to
people in mine management that the crew could not maintain
adequate ventilation. Tr. II 31. Moreover, Workley thought that
a person actually could feel the difference between a mean entry
air velocity of 60 cfm and one of 41 cfm.
Finally, Workley
maintained that when mining was in process the foreman would have
seen "dust rolling back over the roof bolters and to the
[continuous] miner operator," and this should have alerted the
foreman to the inadequate air velocity. Tr. II 32.
Workley was also of the opinion that Parker was negligent in
that he was going to begin mining and he was going to do so in a
situation where he clearly knew or should have known that the
lation was inadequate. Tr. II 61.
order to abate the cited violation the foreman and
continuous miner operator cut up brattice cloth and wrapped the
cloth around the tubing to cover the leaks. Tr. II 33-35.
Workley could not recall where they had obtained the cloth, and
Workley did not see the cloth in the vicinity of the face prior
~c citing the violation.
Tr. II 33. This indicated to Workley
the tubing would not have been wrapped before mining started
that the tubing had not been wrapped on the midnight shift.
Tro II 34o
Section 75.301-4(a) provided an exception from the 60 cfm
requirement for working places where a blowing system was the
primary means of face ventilation or where a lower mean entry air
velocity had been determined by the MSHA district manager to have
been adequate. Workley stated that neither exception applied in
this instance. Tr. II 36.

1911

The question of whether a check curtain had been hung in the
crosscut immediately inby the auxiliary fan was raised on cross

examination by Consol's counsel. Workley maintained that
although he was not certain, he did not believe that such a
curtain was in place. However, if it had been so hung, it would
not have increased ventilation at the face.
This was because the
air in the crosscut where the fan was located was 26,500 cfm,
which would have blown out the bottom of any curtain.
Tr. II 54-55.
CONSOL'S WITNESSES
DANNY SERGE
Consol inspection escort Danny Serge was Consol's initial
witness"
He was not with Workley during the inspection of
20,
Serge testified that he is in charge of control of
respirable dust at the mine. Tr. II 83. According to Serge,
when mining is in progress a '·check curtain normally is in place
immediately inby the auxiliary fan. With the curtain in place
all air in the crosscut where the fan is located is directed up
the entry to the face. Tr. II 85-56.
Serge, who testified he regularly toolt Pitot tube readings
determine air velocity, stated that he normally took them not
in the peewee tube but in the tube next to it. Serge maintained
that until the reading taken by Workley he had never heard of any
person from either MSHA or Consol taking a Pitot tube reading in
the peewee tube. Tr. II 97. Readings taken in the peewee tube
could result in significantly different results than those taken
regular tubing further away from the face.
A reading taken in
~:.}:'-""' ·::.ube L:~ext t.o the peewee tube would have been higher than the
·cube result because of the gain of air through the joint
where the peewee tube fit into the next tube. Tr. II 89-91.
speculated that the air reading would have been increased
much as 50 percent if it had been taken further back from
where Workley took it. Tr. II 93.
believed that the air going up the entry swept the
before being sucked into the gap between the peewee tube and
tube and thus that a reading taken in the regular
~ould represent the air present at the face.
Q}.=104o

WILLIAM KUN
William Kun 1 safety supervisor at the Osage No. 3 mine, was
Conso1's last witness. Kun accompanied Workley and was served
Order No. 3717961. Kun stated that at the commencement of the
inspection he and Workley went directly to the 7 butt section.

1912

(Kun was unaware at the time of any prior conversation Workley
may have had with a miner.) They arrived on the section around
8:40 a.m.
They observed three or four miners at the tailpiece
who were installing rollers on the tailpiece. Coal was not being
mined and it could not be mined until the tailpiece was
completed. Kun had "no knowledge" of how long it would have been
before work at the tail piece was finished.
Tr. II 107-108.
The inspection party proceeded up the entry toward the face
area. Along the way Kun recalled Workley looking "at a couple of
tubes." Tr. II 125. At the face area, the continuous miner was
located adjacent to the peewee tube. Tr. II 109. Kun was not
certain whether or not Jimmy was present at the continuous miner.
Tr. II 122.
With regard to the condition of the tubing, Kun agreed that
there were some holes in it. Tr. II 112. Kun also believed that
Serge was correct to believe that taking a reading in the next
tube back from the peewee tube would have given a· true
representation of the air passing the face.
He stated, "[Y)ou•re
finally getting all the air that swept the face because the air
that goes through the end of the slider tube, which is closest to
the face, plus what goes in at that joint is now giving you a
true representation of what is being passed by the face."
Tr. II 112-113.
After the face area had been inspected the inspection party
moved down the entry and met Parker at the intersection of the
crosscu.t and the entry. Prior to that, Parker had been working
with the miners who were moving the belt and he had completed
checking for methane at three idle faces on the section. Tr. II
115.
It was at this point that Parker and Workley had a
conversation 8 but Kun maintained that he did not hear Parker
mention anything about the tubing to Workley. Tr. II 110, 114. 9
However~ Kun did hear Workley ask Parker if Parker was ready to
start mining and, according to Kun 1 Parker replied, "I'm about
ready.'~
Tr. II 116. Kun believed that Parker could not have
meant mining was going to start immediately because only the
continuous miner operator was at the face and various checks
would have had to be made by other miners before mining could
commence. Tr. II 117. In addition, the roof bolter operator and
the loader operator were at the tailpiece and they would have had
to be in the face area for mining to begin.
Tr. II 119.

9

In fact, Kun was standing several feet away from the two men.
Tr. II 116. In addition, as previously mentioned, the auxiliary fan was
running and Kun believed the inspection party was wearing ear protection.
Tr. II 127.

1913

THE VIOLATION

Section 75.301-4(a) stated in pertinent part:
[E]xcept in working places using a
blowing system as a primary means of face
ventilation or in working places where a
lower mean entry air velocity has been
determined to be adequate to render harmless
and carry away methane and to reduce the
level of respirable dust to the lowest
attainable level by the . • • [MSHA] District
Manager, the minimum mean entry air velocity
shall be 60 feet a minute in (1} all working
places where coal is being cut, mined or
loaded from the working face with mechanical
mining equipment . . . [to)
Counsel for the Secretary argues that Workley's air
measurement, by which he det~rmined the air quantity (volume),
was validly taken and produced a true result. Consequently,
Workley's calculation of the mean entry air velocity was likewise
accurate. Counsel terms as "irrelevant" the fact that no mining
was taking place because Parker told Workley he was going to
start. Moreover, Consol was mining on the midnight shift and by
inference the violation occurred on that shift as well.
Tr. II 150-152.
Counsel for Consol notes the regulation applies where coal
is being "cut, mined or loaded" and argues that coal was not
being cut, mined or loaded when the alleged violation occurred.
Tr. II 157-158. In the alternative, Counsel argues that if the
standard is applicable despite the lack of actual mining,
Workley 0 s air reading cannot establish the violation because by
taking the reading as he did 1 Workley missed a 90 significant
quantity of air.u Tr. II 158.
I conclude that on the morning of February 20v 1993, the
violation existed as charged. 11
Consol' s argument that the
standard should be interpreted to mean what it saids ~- that is,
10
Like section 75.323, section 75.301-4(a) was revised effective
August 15, 1992.
57 F.R. 20914 (May 15, 1992). Its requirements now are
included in section 75.326.

11

Because I conclude a violation of section 75.301-4(a) existed when cited
I need not decide whether such a violation also existed on the
midnight shift.
I note, however, that although Workley stated he believed a
violation of section 75.301-4(a) had taken place on the midnight shift, it is
clear that he chose not to cite Consol for such a violation and the
Secretary's attempt to belatedly bring that "violation" within the parameters
of Order No. 3717961 is dubious at best.
by Workley,

1914

it should be applied in all working places where coal is being
cut mined or loaded -- usually would carry the day, for
regulatory interpretation would normally stop where the wording
is clear. However, a reading of the entire standard convinces me
it presented one of the rare instances where seemingly
unambiguous language must be subjected to further interpretation.
I reach this conclusion because of the directive of section
75.301-4(c) that "[t]he determination of mean entry air velocity
may be made either immediately before mining equipment enters a
working place or during its presence in such working place."
Obviously, if the determination upon which a violation of the
standard hinges could have been made "immediately before mining
equipment enters a working place,~ then an operator could have
been in violation of the standard even before coal actually was
cutr mined or loaded.
In my view, the standard thus contemplated
the presence of the required mean entry air velocity beginning at
a point "immediately prior" to actual cutting, mining or loading.
Moreover, it is perhaps obvious, but nonetheless worth
observing, that when regulatory interpretation is undertaken the
law prefers reasonable consequences. Given the purpose of the
standard to have protected miners from the hazards of methane and
respirable dust, it was reasonable and furthered that purpose to
have allowed an inspector to take preemptive action when the
catalyst for such hazards -- the actual mining of coal -- was
immediately at hand.
In sum, I agree with counsel for the
Secretary that the inspector "should not [have] be[en] required
to permit [an unsafe condition] . . . to go on . • • when he had
been given every . . • inaication from the operator • . . that
such activity [was] imminent." Tr. 152.
Here, I fully credit Workley's testimony that Parker stated
coal was ready to be mined. Kun testified that Parker said he
':Yas "about ready" u but Kun was not standing with Workley and
q
the noise from the auxiliary fan, Kun agreed he, Kun, might
nave been wearing ear muffs. on the other hand, Workley, was
certain he and Parker could hear one another and certain about
what had been said. More telling yet, is the fact that Consol
did not call Parker as a witness. This speaks almost as loudly
e;:s ~\lorkley and Parker must have been.
Workley knew the continuous miner was in the face area.
been told by the foreman that the foreman was ready to
mine, I believe Workley was justified in taking Parker at his
word.
In my view it would be unreasonable to hold that Workley
should have questioned Parker further about the "readiness" of
~he roof bolters or loader operator.
An inspector may assume a
foreman knows whereof he speaks.
Further, it was reasonable for Workley to conclude that
mining would have been conducted under the circumstances he had
observed on the section. There was, as Workley testified, no

1915

visual indicated that efforts had been made to patch or repair
the tubing nor any evidence that such repair work was planned.
I realize that Workley took the air reading upon which the
violation is based prior to his discussion with Parker.
Nonetheless, nothing had occurred between the taking of the
reading and the discussion to change the result Workley obtained,
and I therefore hold that Workley properly understood the mining
coal was immediately at hand in a working place with a mean
entry air velocity of less than 60 cfm.
This conclusion is also based upon the fact that I reject
challenge to the manner in which Workley measured the
mean entry air velocity. In particular, I am not persuaded by
Consol's contention that the air entering the gap between the
peewee tube and the main tube (the angle tube) would of necessity
have ventilated t~e face area and thus that Workley failed to
measure a 8 significant" amount of air. Rather, I credit the
essence of Workley 1 s testimony in this regard -- that much of the
entering the gap would have been sucked directly into it
rather than going to the face ..first. This represents an
elementary principle of physics and thus, while it is true that
had he taken a reading outby the gap Workley would probably have
obtained a higher reading, it would not have been a reading
relevant to determine the quantity of air necessary for
ca
of the mean entry air velocity. 12 I therefore
conclude the Secretary has established a violation on
sect
75.301-4(a).
Consol~s

S&S AND

GRAVITY

Counsel for the Secretary argues that the S&S nature of the
fully established by Workley's testimony. He states
normal mining operations had continued, excessive
of methane and respirable coal dust could have been
t.he face area" He further argues that Workley
vely tesccified the cutter heads on the continuous miner
an ignition source and that if mining had continued the
deterioration of the ventilation would have been reasonably
to result
an ignitiono Further, according to counsel,

:i:;.v::ther find on the face of this record that Workley correctly
<.:he mean entry air velocity based on one measurement of the
of air. Although Consol challenged the point at which Workley made
measurement, it did not offered any testimony to refute Workley's
nssertian that he had calculated the mean entry air velocity properly based
c;.pon t.he resuh: of his single measurement. Nor did Consol point to any
or MSHA guidelines that prohibited such a practice. Nevertheless,
i'c !!leems incongruous indeed to find the "mean" on the basis of one
,,iaasu:rement, and the issue might well have been decided differently had other
ovidence been offered.
~·

c',~t.erz,>ined

1916

Workley credibly testified pneumoconiosis was reasonably likely
given the coal dust.
Tr. II 153-154.
Counsel for Consol argues that at the time Workley inspected
the section no respirable coal dust was present, methane was low
and there was no ignition source.
Further, if mining had
continued there was no reasonable likelihood of injury because
adequate air was moving up the entry to remove the methane and
coal dust, and the fact that Workley saw one miner with a dirty
face was no indication pneumoconiosis was reasonably likely.
Tr. II 159-161.
I conclude the testimony supports Workley's S&S finding.
A
violation of the cited standard existed.
In the context of
continued normal mining operations the violation posed the safety
hazard of an explosion and fire due to methane or coal dust and
the health hazard of pneumoconiosis due to excessive
concentrations of respirable dust. These hazards could have
resulted in serious, even fatal, consequences to miners.
Moreoverf I conclude there was a reasonable likelihood the
hazards would have resulted in injury or illness. There is no
indication Consol was going to repair the tubing, thus there is
no indication the inadequate ventilation would have improved.
Methane is liberated at the mine and it is common knowledge that
methane liberation increases during mining. Without the required
mean entry air velocity liberated methane was less likely to have
been swept from the face area.
Further, Consol does not dispute
Workley's testimony that the bits of the continuous miner could
cause sparks, thus providing an ignition source for accumulated
methane. Given these factors and in the context of ongoing
mining operations an ignition was reasonably likely.
In addition, I conclude the contraction of pneumoconiosis in
the context of normal continued mining operations was reasonably
likely given the fact that the continuous miner creates
respirable dust when mining is taking place and the violation
made adequate removal of that dust unlikely. While I agree with
Consol that the miner with the dirty face does not prove
reasonable likelihood (afterall, Workley admitted he did not know
for certain where the miner had been working or what he had been
doing on the midnight shift) , I do not believe a physical indicia
of the presence of coal dust is necessary to uphold an S&S
finding.
Pneumoconiosis is a cumulative disease.
Illness
results from repeated exposure.
It is not possible to state that
any one exposure is more "likely" to bring on the disease than
any other and I therefore believe all to be equally hazardous.
Thus, in my view, a condition such as this violation, that is
reasonably likely to lead to exposure to excessive respirable
coal dust is reasonably likely to result in an illness.

1917

As I have noted, the violation subjected miners in the face
area to serious or even fatal injury and illness. Further, as
mining continued it was likely miners would have been injured or
been made ill by the conditions created by the violation.
Therefore, I also conclude the violation was serious.
UNWARRANTABLE FAILURE AND NEGLIGENCE
The issue of unwarrantable failure can be decided
by answering the question of whether the violation of
section 75.301-4(a) was due to Consol's aggravated conduct
constituting more than ordinary negligence? The Secretary's
counsel emphasizes Workley's testimony that the problem with the
tubing was ongoing, that Parker told him he had been unable to
secure replacement tubing and that there was nothing noticeably
present on the section with which to make on-the-site repairs of
the tubing (e.g., materials to wrap the tubing). Further,
counsel points to the miner with the black face and asserts the
inadequate ventilation had to be apparent to management.
Tr. II 154-155.
Counsel for Consol counters that although the tubing was in
"rather dilapidated condition" this does not establish
unwarrantable failure to comply with the cited ventilation
standard. Tr. II 162. Section 75.301-4(a) requires a specified
amount of ventilation, not maintenance of the ventilation system.
Tr. II 160-161.
I find for the Secretary. The condition of the tubing was
visually obvious. As even consol's counsel admits, the tubing
was badly damaged. The damage was so extensive I conclude it
must have occurred over several shifts, and this conclusion is
supported by Workley~s entirely credible account of the
conversation in which Parker told Workley he had been trying for
two weeks to get mine management to provide better tubing.
(As I
have previously noted, Consol did not call Parker as a witness.)
The unexplained, long term failure of mine management to have
provided its foreman with the means to comply with something so
elementary to safety as the cited ventilation standard was indeed
inexcusable
a

Nor does the inexcusable fault rest solely with nameless
management officials. Parker also must share in the blame. He
knew the tubing was damaged and he must have known the
consequences of that damage upon the ability of the tubing to
maintain adequate ventilation at the face. Yet, on February 20,
he was ready to begin mining without making repairs to the tubing
-- repairs that would have permitted compliance with the
standard, as the abatement of the order shows. While he may not
have been able to obtain better tubing, it is not too much to
expect he could have obtained brattice cloth or other materials

1918

to wrap the tubing, and I conclude .that his failure to do so was
inexcusable.
Finally, Consol's failure to adequately maintain the mean
entry air velocity of February 20 was the result of management's
and the foreman's failure to meet the standard of care required
of them under the circumstances and their failure represents a
high degree of negligence.
OTHER CIVIL PENALTY CRITERIA
Gov. Exh. 1 is a computer print-out listing assessed and
paid violations at the Osage No. 3 Mine in the twenty four months
preceding the first violation alleged in this case. The printout lists a total of 1,180 paid violations. Of these, there
was one violation of section 75.323 and no violations of
section 75.301-4(a). Counsel for the Secretary •rgues that this
is an "average history" of previous violations.
I find the
history is large and while there is no evidence of a pattern of
noncompliance with the standards at issue, the total history
warrants commensurately large'·civil penalties.
In addition, I find the mine is large in size and Consol is
a large company. The parties have agreed that any penalties
assessed will not affect Consol's ability to continue in
business.
Finally, I find that once the violations were cited, Consol
exhibited good faith in rapidly abating them.
CIVIL PENALTY ASSESSMENTS
The Secretary has proposed a civil penalty of $900 for the
violation of section 75.323 and a civil penalty of $1300 for the
violation of section 75.301-4(a). With regard to the violation
of section 75.323u given its S&S nature, the unwarrantable
failure of Consol in allowing it to exist, the mine's large
history of previous violations and Consol's status as a large
operator, I find an increase in the proposed amount to be
appropriatev and I assess a civil penalty of $1200.
With regard to the violation of section 75.301-4(a),
considering the same factors, and noting especially what I
believe to have been the particularly egregious lack of care of
Consol in allowing the violation to exist, I find an increase in
the proposed amount to $1800 to be appropriate.

1919

ORDER

Section 104(d) (2) Order No. 3718491 is AFFIRMED and Consol
IS ORDERED to pay a civil penalty in the amount of twelve hundred
dollars ($1200) for the violation of section 75.323 alleged
therein.
Section 104(d) (2) ORDER No. 3717961 is AFFIRMED and Consol
is ORDERED to pay a civil penalty in the amount of eighteen
hundred dollars ($1800) for the violation of section 75.301~4(a)
alleged therein.
Payment is to be made to MSHA within thirty (30) days of the
date of this decision.
This proceeding is DISMISSED.

David F. Barbour
Administrative Law Judge
Distribution:
Charles M. Jackson, Esq., Office of the Soli9itor,

u.s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)
Daniel E. Rogers, Esq., consol, Incorporated, Consol Plaza, 1800
Washington Road 0 Pittsburgh, PA 15241-1421 (Certified Mail)
/epy

1920

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

-.

-'II

DISCRIMINATION PROCEEDING

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
on behalf of
JERRY LEE DOTSON,

Docket No. SE 92-181-D
Mine No. 50

v.
LAD MINING INC., LARRY FLYNN,
AND RONALD CALHOUN,
Respondent
FINAL DECISION
APPROVING SETTLEMENT
Appearances:

Before:

Gretchen M. Lucken, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia,
for Petitioner;
Michael W. Boehm, Esq., and Thomas s. Kale, Esq.,
Spears, Moore, Rebman and Williams, Chattanooga,
Tennessee, for Respondent.

Judge Barbour
STATEMENT OF THE CASE

This case is before me upon the complaint of the Secretary
of Labor ("Secretary") on behalf of Jerry Lee Dotson, pursuant
to Section 105(c) (2) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 815(c) (2) ("Act"). The Respondents are Lad
Mining, Incorporated ("Lad"), Larry Flynn and Ronald Calhoun.
The essence of the Secretary's complaint is as follows:
(1) that
Dotson was working at Mine No. 50; (2) that the operator for whom
Dotson was working went out of business and closed the mine; (3)
that shortly, thereafter 1 the mine reopened under a new operator,
Lad, and that Larry Flynn, the owner of Lad, and Ronald Calhoun,
the president of the company that leased coal rights to Lad,
refused to hire Dotson to continue working at the mine because of
Dotson 1 s protected activity and in violation of Section 105(c) (1)
of the Act.
A hearing on the merits of the complaint was held in
Chattanooga, Tennessee. Following the submission of post-hearing
briefs by counsels for the Secretary and the Respondents, I
issued a Partial Decision Pending Final Order in which I found
the Secretary had proved that Dotson engaged in protected
activity, that Respondent Calhoun knew of his activities and was
motivated by them to take adverse action against Dotson and that

1921

Respondent's Flynn and Calhoun likewise were motivated by the
protected activity to take adverse action against Dotson.
I
further found that the Respondent's failed to rebut the
Secretary's case or to establish an affirmative defense to his
allegations. Therefore, I concluded the Respondent's had
violated Section 105(c) (1) of the Act.
Secretary of Labor on
behalf of Dotson v. Lad Mining Incorporated, 15 FMSHRC 634, 659
(April 1993).
Having found the Respondent's in violation of the Act, I
ordered the parties to confer with respect to the remedies due
Dotson and to advise me regarding the results of their
discussions.
I stated that if the parties were not able to agree
regarding the remedial aspects of the matter, a further hearing
would be convened.
15 FMSHRC at 660.
DISCUSSION

Subsequently, the parties engaged in extensive discussions
and negotiation; and the parties efforts have resulted in a
settlement agreement (the "Agreement") between the Complainant
and the Respondents.
Counsel for the Respondents has submitted a
copy of the Agreement for my review. The Agreement is signed by
counsel for the Respondents and counsel for the Secretary. The
Complainant also has signed it. The Agreement sets forth the
terms of the settlement with respect to the remedial aspects of
this matter.
In addition Lu lh~ AgLeeruent the parties have filed a Joint
Motion to Dismiss this matter on the basis that the Agreement
resolves all outstanding issues to the parties' mutual
satisfaction.
CONCLUSION

I have reviewed the Agreement and considered the motion.
I
conclude and find the settlement disposition is reasonable and in
the public interest. Accordingly, the settlement is APPROVED.
The parties' joint motion to dismiss with full prejudice is
GRANTED.
ORDER

The parties are ORDERED to comply with all provisions of the
Agreement.
In view of the settlement disposition of this case,
this matter is DISMISSED.

J)vt/,,

r/ -{ 6 V/76o '--' /'(__

David F. Barbour
Administrative Law Judge

1922

Distribution:
Gretchen M. Lucken, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, 4th Floor, Atlington,
VA 22203 (Certified Mail)
Michael W. Boehm, Esq., Thomas s. Kale, Esq., Spears, Moore,
Rebman & Williams, 801 Pine Street,·sth Floor, Blue Cross
Building, P.O. Box 1749, Chattanooga, TN 37401-11749
(Certified Mail)
jepy

1923

PBDBRAL JD:IIB SAFETY AND BBAL'l'B RBVJ:BW COJIXXSSIOB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

S£P 1 71993
INTERNATIONAL UNION,
UNITED MINE WORKERS OF
AMERICA, LOCAL 5922,
Complainants

COMPENSATION PROCEEDING
Docket No. WEVA 93-358-C

v.

No. 21 Mine

BEAR RUN COAL COiviPANY, AND
W. P. COAL COMPANY,
Respondents
ORDER OF DISMISSAL
Before: Judge Hodgdon
This case is before me on a complaint for compensation under
Section 111 of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 821. The parties have filed a motion to approve
withdrawal of the complaint and to dismiss the case. The motion
states that the Complainants have been paid by respondent the
compensation claimed and that the issue in this case is,
therefore, moot.
Accordinglyu the joint motion to withdraw the complaint is
GRANTED and the case is DISMISSED with prejudice.

'!~~
Administrat~ve

Law Judge

(703) 756-4570
Distribution:
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th
Street, N.W., Washington, DC 20005 {Certified Mail)
E. Forrest Jones, Jr., Esq., Albertson and Jones, Number 12
Kanawha Boulevard, West, P.O. Box 1989, Charleston, WV 25327
(Certified Mail)
Mr. Vernon Cornette, w. P. coal Company, P.O. Box 570, omar, WV
25638 (Certified Mail)
jefw
1924

FEDERAL KillE SAFETY ABD HEALTH REVIEW COIIJUSSIOH
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

SEP 2 01993
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 92-128-M
A.C. No. 14-00159-05528
Inland Quarries

v.
AMERICOLD CORPORATION,
Respondent

DECISION

Appearances:

susan J. Eckert, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner;
Bohn A. Frazer, Quarry Manager, Kansas City,
Kansas,
for Respondent.

Before:

Judge Morris

The Secretary of Laboru on behalf of the Mine Safety and
Health Administration (MSHA), charges Americold Corporation
("Americold") with violating two safety regulations promulgated
under the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
Section 801, et seq. (the "Act")o
A hearing on the merits was held in Kansas city 8 Missouri,
on May 1lq 1993o The parties waived post-trial briefs and submitted the case on oral argument.
STIPULATION

The parties stipulated as follows:
1. Americold Corporation is engaged in m1n1ng and selling
of limestone in the United States, and its mining operations affect interstate commerce.

1925

2. Americold Corporation is the owner and operator of the
Inland Quarries, MSHA I.D. No. 14-00159.
3. Americold Corporation is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. Section
801 et seg. ("the Act").
4.
matter.

The Administrative Law Judge has jurisdiction in this

5. ·The subject citations were properly served by a duly
authorized representative of the Secretary upon an agent of
respondent on the dates and places stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
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
therein.
7. The proposed penalties will not affect respondent's
ability to continue in business.
8. The operator demonstrated good faith in abating the
violations.
9. Americold Corporation is a small mine operator with
45,327 annual hours worked in 1990.
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 citations.
citation No. 3907226

The above citation describes .the following violative
condition~

Ventilation control measures were not provided for the underground shop area to confine or prevent the spread of toxic
gases originating from a shop fire.
Smoke from a shop fire would
most likely travel directly to the active mine face areas.
The shop was located approximately 2,500 feet in the main
mine portal entry. The present primary and secondary escape
routes, as indicated on the escape and evacuation plan, were
located just north of the shop area.

1926

The citation further alleges that the described condition
violates 30 C.F.R. § 57.4761. The cited regulation provides as
follows:
Section 57.4761

Underground shops.

To confine or prevent the spread of toxic gases from a fire
originating in an underground shop where maintenance work is
routinely done on mobile equ.ipment, one of the following measures
shall be taken: use of control doors or bulkheads, routing of the
mine shop air directly to an exhaust system, reversal of mechanical ventilation, or use of an automatic fire suppression system
in conjunction with an alternate escape route.
The alternative
used shall at all times provide at least the same degree of safety
as control doors or bulkheads.
(a)

Control doors or bulkheads

If used as an alternative, control doors or bulkheads
shall meet the following requirements:
(1) Each control door or bulkhead shall be constructed to
serve as a barrier to fi·re, the effects of fire, and air leakage
at each opening to the shop.
(2)

Each control door shall be--

(i) Constructed so that, once closed, it
will not reopen as a result of a differential in air
pressure;
(ii) Constructed so that it can be opened
from either side by one person or can be provided with
a personnel door that can be opened from either side;
(iii)

Clear of obstructions; and

(iv) Provided with a means of remote or
automatic closure unless a person specifically designated to close the door in the event of a fire can
reach the door within three minutes.
(3)
If located 20 feet or more from exposed timber or other
combustible material, the control doors or bulkheads shall provide
protection at least equivalent to a door constructed of no less
than one-quarter inch of plate steel with channel or angle-iron
reinforcement to minimize warpage. The framework assembly of the
door and the surrounding bulkhead, if any, shall be at least
equivalent to the door in fire and air-leakage resistance, and in
physical strength.
(4)
If located less than 30 feet from exposed timber or
other combustibles, the control door or bulkhead shall provide
protection at least equivalent to a door constructed of two layers
of wood, each a minimum of three-quarters of an inch in thickness.
The wood-grain of one layer shall be of the other layer. The wood
construction shall be covered on all sides and edges with no less
than 24 gauge sheet steel. The framework assembly of the door and
the surrounding bulkhead, if any, shall be at least equivalent to

1927

than 24 gauge sheet steel. The framework assembly of
the door and the surrounding bulkhead, if any, shall
be at least equivalent to the door in fire and airleakage resistance, and in physical strength. Rolldown steel doors with a fire-resistance rating of 1.5
hours or greater, but without an insulation core, are
acceptable provided that an automatic sprinkler or
deluge system is installed that provides even coverage
of the door on both sides.
(b) Routing air to exhaust system. If used as an alternative, routing the mine shop exhaust air directly to an exhaust
system shall be done so that no person would be exposed to toxic
gases in the event of a fire.
(c)

Mechanical ventilation reversal.

If used as an alternative, reversal of mechanical ventilation shall-(l) Be accomplished by a main fan.
is located underground:

If the main fan

(i) The cab~~ or conductors supplying power to the
fan shall be routed through areas free of fire hazards; or
(ii) The main fan shall be equipped with a
second, independent power cable or set of conductors
from the surface. The power cable or conductors shall
be located so that an underground fire disrupting
power in one cable or set of conductors will not
affect the other; or
(iii) A second fan capable of accomplishing
ventilation reversal shall be available for use in the event
of failure of the main fan;
(2) Provide rapid air reversal that allows persons
underground time to exit in fresh air by the second escapeway or
find a place of refuge; and
(3)
procedures.

Be done according to predetermined conditions and

(d) Automatic fire suppression system and escape route. If
used as an alternative, the automatic fire suppression system and
alternate escape route shall meet the following requirements:
(1)

The suppression system shall be-{i)

Located in the shop area;

(ii) The appropriate size and type for the particular
fire hazards involved;
and;
(iii)

Inspected at weekly intervals and properly

maintained.
(2) The escape route shall bypass the shop area so that
the route will not be affected by a fire in the shop area.

1928

EVIDENCE
The evidence in connection with Citation No. 3907226 is
essentially uncontroverted.
RICHARD LAUFENBERG is a federal mine inspector as well as a
mining engineer.
He is familiar with Inland Quarries Mine, which is an underground limestone mine.
It is mined by room and pillar method.
On April 2, 1991, Mr. Laufenberg inspected the Inland Quarries to assist Jerry Fuller of MSHA's Denver Technical Support.
A ventilation survey was being conducted because in February 1991
a trash fire occurred in the vicinity of the underground shop and
MSHA's district manager was concerned. Mr. Gomez, then district
manager, instructed Technical Support to do the ventilation survey. This was a Code 36, or "miscellaneous inspection."
Messrs. Fuller and Laufenberg met with Bohn Frazer and they
went underground.
Exhibit P-4 is an underground map that shows the main air
flow of the ventilation system.
The map is marked in green to indicate the main haulway
system in the escapeways. Red arrows show the evacuation route
and pink arrows show the primary flow of fresh air.
The shop itself is marked with an"A" in the L-shaped darkened area. Limestone is mined in the places marked "B-1" and
ooB-2 no.

The storage area, which is under OSHA 1 s jurisdiction, has
been marked with a "C".
The mine portal is marked with a "D". The mine itself and
the storage area are not completely separated.
Mr. Laufenberg issued citation No. 3907226 because this
underground facility with an underground shop. Routine and
typical shop work was being done and this included work with
toolsu torches, grinders, and compressors. They were also
working on equipment in the shop.
The shop did not control the spread of toxic gases. The
area is well lit and about seven to eight times the size of the
courtroom.
(The courtroom is approximately 120 to 150 feet by 80
feet • Tr. 3 7) .

1929

The shop is enclosed by pillars, with one opening on the
east side and one large opening on the south side. The two
openings are 15 to 20 foot wide.
A fire could occur in the shop from the use of torches, as
well as grinding and electrical equipment. There was also grease
and oil stored in the area. MSHA's regulation required adequate
control measures to prevent the spread of toxic gases. The toxic
gas most likely to occur was carbon monoxide.
In the event the
oils and greases caught fire, they would produce carbon monoxide
which would flow through the mine.
The shop, which was 5,000 to 7,000 feet from the face area,
was also adjacent to the primary and secondary escape routes.
Mr. Laufenberg did not see any control measures.
Specifically, there were no control doors or bulkheads nor had the company tried to route the air.
In addition, there was no reversal
mechanical ventilation possible nor was there any automatic fire
suppression system.
Sixteen workers were affected by this condition.
It was the
inspector's opinion that the violation was significant and substantial.
If a fire occurred, the miners would be exposed to
carbon monoxide gas and the existing ventilation would carry the
gas into the face area. Carbon monoxide can overcome miners.
It
would be easy for someone to be injured.

Mr. Laufenberg considered the company's negligence to be
moderate, as MSHA has regulated underground shops and the company
should have recognized the violative condition. The company
abated the violation by installing fire control doors.
Mr. Laufenberg identified the operator's ventilationv escape
and evacuation plan submitted to MSHA by date of December 2u
1985.
JERRY LEE FULLER serves as a senior m~n~ng engineer for MSHA
with Denver Technical Support. He is a mining engineer with
special training in ventilation. Mr. Fuller provides support for
the Metal and Non-Metal Division in MSHA.
After a trash fire occurred at the quarry, he was asked to
do a ventilation inspection. The inspection took place April 2
and April 3 0 1991.
Attached to Mr. Fuller's report (Exhibit P-5) is a clear
overlay map. Exhibit P-5 differs from Exhibit P-4 as it shows
the warehouse area more clearly. The map is basically an overlay
of P-4.

1930

The inspection group traveled the ventilation circuit and
measured the air quantity. They took measurements throughout the
underground operation. The air quantity was calculated per minute and then converted into the total air volume. His partner in
the inspection ran the anometer. All of the measurements that
were taken are noted on Exhibit P-5.
In this mine most of the air comes in the portal and up past
the shop. The air then goes through the openings in the wall and
is exhausted out of the mine as shown by the pink arrows on
Exhibit P-4.
As a result of his survey, Mr. Fuller concluded the mine was
well ventilated.
Mr. Fuller further agrees with Mr. Laufenberg that the violation was S&S. There is an S&S problem if the smoke was not
controlled. The basic problem would be toxic gas (carbon monoxide) which would go directly to the face.
Mr. Fuller did not know how long it would take the gas to
get to the face.
It was entirely likely that the carbon monoxide
could get there before any smoke.
In his opinion, it was not
likely that a miner at the face could see any fire in the shop.

Inland Quarries' Evidence
EARL HUFFMAN is a mechanic at Inland Quarries and he has
performed various jobs for the company.

Mro Huffman indicated that MSHA has never made an issue
about a barrier between the pillars or the fire doors for the
shop" Mr. Bohn FrazerQ the quarry manager, said MSHA wanted to
check the warehouse. In addition, he told the employees that
MSHA would not issue a citation. Nevertheless, the company
received a citation.
The company has always had good ventilation.
WALT KNIGHT is the general manager for the Americold Kansas
The warehouse system was developed in 1988. In
l989 the Occupational Safety and Health Administration (OSHA)
changed the carbon monoxide exposure threshold limit value from
50 PPM to 35 PPM. The company knew they could not meet the new
requirements and they secured the services of a ventilation engineer who made recommendations. Eventually fans were installed at
all of the places on Exhibit P-4. The ventilation changes cost
approximately $300,000.00.

ty operation.

1931

During Mr. Knight's tenure, MSHA did not inspect the warehouse nor the ventilation system. Mr. Knight permitted entry by
MSHA into the warehouse area to inspect the fans.
Before the
inspection Mr. Laufenberg said MSHA would not issue any citations
if the company granted MSHA permission to enter the warehouse
area.
It is not possible to physically inspect the fans shown as
No. 2, 3, and 4 in Exhibit P-5 because the area is locked and
quarry personnel could not enter the area. MSHA previously had
never requested permission to enter.
The trash fire that resulted in the inspection occurred on a
Sunday morning. However, there was no one working and there was
no damage or injuries. The fire was extinguished about noon on
Sunday. MSHA had never expressed concern about lack of fire
doors.
BORN FRAZER has been the quarry manager since December
1987.

He received a call from MSHA's representative Laufenberg who
indicated MSHA desired to inspect the ventilation in the mine.
He further stated that, if they would grant permission, no citations would be issued. Permission was then granted. When
Mr. Laufenberg came back to the office with the citation, Mr.
Frazer was aghast.
The company takes particular pride in safety and they try
and cooperate with the authorities.
When they were told to install a one and a half hour fire
doorr they obtained a three hour rated door and MSHA said they
had to apply for a variance~
It took six months to install the
door"
These things are a mystery to the company and Mr. Frazer
felt the company was not being treated fairly.

Mro Frazer personally heard Mr. Laufenberg state that, if
the company allowed the inspections, they would not write any
citations in the mine area. This was agreed during a telephone
conversation.
DISCUSSION and FURTHER FINDINGS
The uncontroverted evidence establishes a violation of 30
C.F.R. S 57.4761. The underground shop was not equipped with any
of the control measures deemed necessary by MSHA's regulation to
confine or prevent the spread of toxic gases from a fire originating in the underground shop.

1932

SIGNIFICANT 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:
{l) 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 ~eason
ably serious nature.

also Austin Power Co. v. Secretary, 861 F.2d 99, 103-104 (5th
cir. 1988), aff'q 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);
Youghioqheny and Ohio Coal Co., 9 FMSHRC 2007, 20011-1012
(December 1987).
Following the Mathies formulation, I conclude there was an
underlying violation of a 30 C.F.R. § 57.4761. A clear measure
of danger to safety was contributed to by the violation. Furtheru I credit the testimony of Inspectors Laufenberg and mining
engineer Fuller that the violation was S&S. A reasonable likelihood that the hazard contributed to will result in an injury was
established by MSHA's expert witnesses.
(Tr. 58, 112-114}. Specifically, Mr. Laufenberg testified the violation was S&S because
the electrical circuits, oil and greases present made a fire reasonably likely.
(Tr. 39-47). The lack of controls would carry
carbon monoxide to the active face.
Such toxic gases are likely
to cause a fatality.
{Tr. 46).
Mr. Fuller agreed the violation was S&S. He stated 11 4761"
[30 C.F.R. S 57.4761] presupposes that a fire would originate in
the shop and at that point, addressing the standard correctly,
means that you have to be able to control that smoke.
So the
presumption of a fire already existing in the shop, to me, indicates that it's a significant and substantial problem if you are
not controlling it." Compare Bethenergy Mines, Inc., 14 FMSHRC
1232, 1243.

1933

Citation No. 3907227

The above citation describes the following violative
condition:
The underground limestone mine did not have two
or more totally separate escapeways to the surface.
The primary escape route was designated in the escape
and evacuation plan as the main haulage road from the
mine portal to the active mine faces.
The secondary
escape route, indicated as the paved underground roadway, was located in the warehouse area and did not
extend to the face.
From a ventilation stand point,
the escape routes were not separated. There were no
stoppings constructed between the two escape routes
for ventilation control.

It was further alleged the described condition violated 30
C.F.R. § 57.11050(a). The cited regulation provides as follows:
Section 57.11050

Escapeways and refuges.

(a) Every mine shall have two or more separate, properly
maintained escapeways to the surface from the lowest levels which
are so positioned that damage to one shall not lessen the effectiveness of the others. A method of refuge shall be provided
while a second opening to the surface is being developed. A
second escapeway is recommended, but not required, during the
exploration or development of an ore body.

Evidence

Mr. Laufenberg issued this citation.

The area marked in green on Exhibit P-4 is the primary
escape route and the escapeways are nothing more than the haul
roads.
The two roads are separated by a pillar line. There is a
40-foot open space between the pillars. If there was a toxic
gasu it would migrate into both of the escapeways.
sixteen miners were exposed to the violation and the exposure was continuous. There were always ignition sources present,
such as trucks.
It was likely that someone would be injured or killed in an
underground fire.
MSHA requires two separate escapeways.

1934

It was a distance 3,200 feet in which the pillars were separated by the 40-foot openings.
To abate this condition the company constructed ventilation
stoppings between the pillars and curtains were hung.
The effectiveness of the abatement was established when a
December 1991 fire occurred and the entire mine remained clear of
carbon monoxide. This was after the curtains had been installed.
Mr. Laufenberg identified Exhibit R-1 as the company's
ventilation plan dated December 2, 1985.
Mr. Laufenberg agreed that it would be obvious to anyone
entering the mine that there was no ventilation barrier between
the pillars and he did not know why he had not previously cited
the company. He did not see it.
Mr. Laufenberg agreed MSHA has no jurisdiction to inspect in
the area where the fans are located inside the warehouse. This
particular area is under OSHA ''s jurisdiction.
Jerry Fuller agreed with Mr. Laufenberg that a violation of
the regulation occurred.
He indicated the regulation requires that damage to one
escapeway does not affect the other. In this case, if a fire
occurred, you could not use the escapeways to get out and it
would be like driving through a black cloud.
Mr. Fuller believed this violation was S&S. The object of
the regulation is to provide two separate escapeways and, in
effectv the openings between the pillars resulted in only one
escapewayo

In order to complete the ventilation survey, it would be
necessary for Mr. Fuller to look at the fans.
If permission was
required, he would get it; however, he did not know who had
granted permission to inspect the warehouse, which is under OSHA
jurisdictiono
Mro Fuller acknowledged that, after four inspections a year
(for a total of 56 inspections), he was unable to explain why
MSHA had not detected the lack of proper ventilation and the lack
of fire doors in the shop area.

DISCUSSION AND FURTHER FINDINGS
The uncontroverted evidence establishes that the "escapeways" were simply two paved haul-roads separated by a pillar
line.
Since a 40-foot open space separate each pillars any toxic
gas would migrate into both the "escapeways. 11
(See Ex. P-4). As

1935

a result there were not "two or more escapeways" as required by
57.11050.
SIGNIFICANT AND SUBSTANTIAL

The case law framework for S&S allegations are set forth in
connection with the previous citation. However, in connection
with this citation, no expert testimony supports paragraph 3 of
the Mathies formulation.
Specifically, Mr. Laufenberg did not
testify as to any S&S allegations concerning the escapeways.
Mr. Fuller, a ventilation expert, hedged his opinion that the
escapeway violation was S&S, based "on his ventilation survey."
(Tr. 118; Ex. P-5}. The ventilation survey and the testimony
does not support paragraph 3 of the Mathies formulation.
The S&S allegations should be stricken as to Citation No.
3907227.
AMERICOLD'S CONTENTIONS

Americold's arguments address a number of issues: the
operator urges the Commission to consider MSHA's failure to
detect that no ventilation barriers existed between the primary
and secondary escape routes for many years.
Further, the company was assured no citations would be
issued as a result of MSHA's inspecting the warehouse area.
(Mr. Laufenberg denies he entered into such an agreement.)
Americold's arguments basically embody the legal doctrine of
estoppel.

It is clear that the mine is subject to inspection as required by the Mine Act, and likewise a penalty is required to be
assessed for any violation. There is no support from a purely
equitable standpoint for Americold's arguments that the Inspector's "no citation" promise, even if true, would bind the Secretary of Laboru and excuse Americold from the requirements of the
Acto
In Secretary of Labor v. King Knob Coal Company. Inc.,
3 FMSHRC 1417 (1981), the Commission refused to invoke the
doctrine of equitable estoppel. It also viewed the erroneous
action of the Secretary (mistaken interpretation of the law
leading to prior non-enforcement} as a factor which can be
considered in mitigation of penalty, stating:
The Supreme Court has held that equitable estoppel
generally does not apply against the federal government. Federal Crop Insurance Corp. v. Merrill, 332

1936

u.s. 380, 383-386 (1947); Utah Power and Light Co. v.
United States, 243 u.s. 389, 408-411 (1917). The
Court has not expressly overruled these opinions,
although in recent years lower federal courts have
undermined the Merrill/UtAh Power doctrine by permitting estoppel against the government in some circumstances. See, for example, United States v. GeorgiaPacific Co., 421 F.2d 92, 95-103 (9th Cir. 1970).
Absent the Supreme Court's expressed approval of that
decisional trend, we think that fidelity to precedent
requires us to deal conservatively with this area of
the law. This restrained approach is buttressed by
the consideration that approving an estoppel defense
would be inconsistent with the liability without fault
structure of the 1977 Mine Act. See El Paso Rock
Quarries, Inc., 3 FMSHRC 35, 38-39 (1981). Such a
defense is really a claim that although a violation
occurred, the operator was not to blame for it.
Furthermore, under the 1977 Mine Act, an equitable
consideration, such as the confusion engendered by
conflicting MSHA pronouncements, can be appropriately
weighted in determining the appropriate penalty.
The Supreme Court of the United States in a recent decision
again refused to invoke estoppel against the government and the
Court has reversed every lower court decision granting estoppel
that it has reviewed.
(Office of Personnel Management v. Richmond, 110 s.ct. 2465 (1990), decided June 11, 1990). Insofar as
it may be pertinent to this case, the Court held that erroneous
oral and written information given by a Government employee to a
benefit claimant who relied, to his detriment, on the misinformation cannot estop the Government from denying benefits not
otherwise permitted by law.
The Court also stated:
It ignores reality to expect that the Government
will be able to "secure perfect performance from its
hundreds of thousands of employees scattered throughout the continent." Hansen v. Harris, 619 F.2d 942,
954 (CA2 1980) (Friendly, J., dissenting), rev'd sub
nom., Schweitker v. Hansen, 450 u.s. 785, 101 s. Ct.
1468, 67 L.Ed.2d 685 (1981). To open the door to
estoppel claims would only invite endless litigation
over both real and imagined claims of misinformation
by disgruntled citizens, imposing an unpredictable
drain on the public fisc. Even if most claims were
rejected in the end, the burden of defending such
estoppel claims would itself be substantial.

For the foregoing reasons, Americold's defense is REJECTED
and the citations herein, as modified, are AFFIRMED.

1937

CIVIL PENALTIES
In determining the amount of penalty to be assessed, Section
110{i) of the Act requires consideration of certain criteria.
In the instant case, Americold's favorable history shows it
was assessed 14 violations for the two year-period ending April
1, 1991.
(Ex. P-1).
Americold is a small operator with 45,327 annual hours
worked in 1990.
(Stipulation}.
Americold was negligent. It should have known of the MSHA
requirements.
The proposed penalties will not affect the company's ability
to continue in business.
(Stipulation).
The gravity of each violation should be considered as high.
A possible fire, the spread of. toxic gases, and the lack of two
separate escapeways present hazardous conditions to underground
miners.
Americold rapidly abated the violations, so it is entitled
to statutory good faith.
Further, the company, in abating those
two citations, demonstrated extreme good faith.
The Judge believes the penalties set for in the order of
this decision are appropriate.
For the foregoing reasons, I enter the following:
L
Citation No. 3907226 is AFFIRMED and a civil penalty of
$150 is ASSESSED.

:L
Citation No. 3907227 is AFFIRMED and a civil penalty of
$100 is ASSESSED.

Law Judge
Distribution~

Susan J. Eckert, Esq., Office of the Solicitor, u.s. Department
of Laboru 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294
(Certified Mail}

Mr. Bohn A. Frazer, Quarry Manager, AMERICOLD CORPORATION, P.O.
Box 2926, Kansas City, KS 66110
ek

1938

(Certified Mail)

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

r"(~'"l
201993
;;~:t

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 92-527-M
A.C. No. 04-04963-05521

v.
A-1 Grit Irwindale
A-1 GRIT COMPANY,
Respondent
DECISION APPROVING SETTLEMENT ·
Before:

Judge Morris

This case is before me upon a petition for assessment of the
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801, et ~(the "Act").
The Secretary filed a motion seeking to settle the four
citations, originally assessed for $942.00 for the sum of
$754.00.
In support of the motion, the secretary further submitted
information relating to the statutory criteria for assessing
civil penalties as contained in 30 U.S.C. S 820(i).
I have reviewed the settlement and I find it is reasonable
and in the public interest.
It should be approved.

Accordinglyu I enter the following:
ORDER
1.

The settlement is APPROVED.

2.

The citations and the amended penalties are AFFIRMED.

3.
Respondent is ORDERED TO PAY to the Secretary of Labor
the sum of $754.00 within 30 days of the date of this decision.

Law Judge

1939

Distribution:

u.s. Department of
Labor, 3247 Federal Building, 300 North Los Angeles Street, Los
Angeles, CA 90012
(Certified Mail)

J. Mark Ogden, Esq., Office of the Solicitor,

Mr. Samuel Newman, A-1 GRIT COMPANY, Newman Brothers of California, Inc., P.O. Box 12, Redlands, CA 92373-0012
(Certified Mail)

ek

1940

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

SEP ~ :3 ;9q3
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 92-130-M
A.C. No. 54-00340-05501

v.

Proyecto Montehiedra

DRILLEX INCORPORATED,
Respondent
DECISION

Appearances:

Jane Snell Brunner, Esq., Office of the Solicitor,
U.S. Department of Labor, New York, New York for
the Petitioner;
Doris Quinones-Tridas, Esq. and Miquel E.
Bonilla-Sierra, Esq., for Respondent.

Before: Judge Barbour:
STATEMENT OF THE CASE

In this civil p~~~J.ty proceeding, brought by the Secretary
of Labor ("Secretary") against Drillex Incorporated ("Drillex")
pursuant to sections 105(d) and 110(a) of the Federal Mine Safety
and Health Act of 1977 ("Mine Act" or "Act"), 30 u.s.c. §§ 815(d)
820(a)~ the Secretary charges Drillex with 13 violations of
mandatory safety standards for surface metal and nonmetal mines
found in Part 56, Title 30, Code of Federal Regulations
("C.F.R."), and with one violation of the legal identity
reporting requirements found at Part 41, 30 C.F.R.
In addition,
the Secretary asserts that several of the alleged violations were
significant and substantial contributions to mine safety hazards.
("S&S" violations).
The alleged violations were cited on August 17, 1992, by
inspectors of the Secretary's Mining Enforcement and Safety
Administration ("MSHA") during an inspection of Drillex•s
Montehiedra Project (the "Project").
In answer to the
Secretary's subsequent proposal for the assessment of civil
penalties, Drillex did not deny the existence of the violations
or that they were S&S, but rather raised a more fundamental issue
by asserting the Project was not a "mine" within the meaning of
the Act and therefore that MSHA was without jurisdiction to issue
the citations in question.
The matter was one of a series of cases involving different
operators that was called for hearing in San Juan, Puerto Rico.

1941

At the commencement of the hearing, counsels for the parties
stated that they had reached stipulations regarding all factual
issues, thus obviating the need for the taking of testimony.
Tr. 4-5. They further agreed the controlling issue of law was
"whether Respondent's operation was a mine, conducting activities
covered by the Act." Tr. 4.
The stipulations were read into the record by counsel for
the Secretary and in written form were entered into the record as
a joint exhibit. Tr. 5-8; Jt. Exh. 1. In addition, I questioned
counsels in order to clarify my understanding of the
stipulations, and I requested the submission of briefs, which
were duly submitted.
STIPULATIONS
The parties stipulated in pertinent part as follows:
1.
That on February 1, 1993, the u.s. Department of
Labor filed a proposed Assessment of Civil Penalty with
the Federal Mine Safety and Health Review commission
against Drillex • ~ . for alleged violations of the
[Mine Act] at the • •
Project.
0

2.
That [Drillex] contested the proposed assessment
of civil penalties on the grounds that the operation
conducted by Drillex . • • at the • . • Project does
not fall within the jurisdictional scope of the
foregoing statute, arguing that • .
[Drillex] is not
a mine performing operations covered by the Act.
Whether • • . [Drillex] has engaged in [i]nterstate
commerce is not a contested issue in the instant case.
o

3.
That the following stipulation of facts is
submitted by the parties in order to resolve the
jurisdictional issue presented by . . . [Drillex]:
a.
That on or about July 10, 1992 • . •
Drillex . •
entered into an agreement with
A.H. Development Corporation under which
Drillex was to preform drilling, blasting,
rock excavation and crushing of a minimum of
20,000 cubic meters of stone to be used as
fill for embankment and road base at the
Project. [ 1 ] The specified work was
o

•

o

•

1

In response to my question why the Project should not be considered as
coming within Mine Act jurisdiction if drilling, blasting, rock excavation and
crushing was conducted at the site, co-counsel for Drillex emphasized that the
crushing of stone was undertaken only for the building of roads at the
construction site. Tr. 12.

1942

the only work preformed by Drillex at the
. Project and the material was processed
an average of three .
. times a week.
b.
The [Project]
. is a privately owned.
construction project wherein over two-hundred
. residential units are being built.
c.

The material processed by Drillex
. was extracted from the project site and
hauled to the crusher area located within the
project.
d.
The extracted material was to be reduced
to gabion size by one .
. employee using a
hydraulic hammer.[ 2 ] The remaining stone was
reduce~ t~ t~rcc .
. inches down in size
with the use of a portable jaw crusher.
plant.[ 3 ) Two.
. employees were retained
for this purpose including the project
supervisor.
e.
Drillex • . • removed six trucks of
contaminated material (stone mixed with clay)
from the project site. Said material was
deposited in a property adjacent to Canteras
de Puerto Rico in Guaynabo, which is in the
process to be acquired by Drillex.[ 4 ]
Said
material. WJ.ll. .oe used to provide temporary
access road for trucks and equipment in the
property.
fo
None of the referred material was
marketed or soldo

2I inquired regarding the meaning of "gabion size"? Counsel for Drillex
replied, hGabion size is stones of about one-foot big, 12 inches in size."
Tr. 8.
She further explained, "Those were broken down with a hydraulic hammer
and not with a crusher." Id.
3counsel for Drillex further explained, "We have two sizes, we have the
gabion size, which is done with a hammer, and not with the crusher, and then
we have the three inches down in size, which is processed with a crusher."
Tr. 8.
4
counsel for Drillex stated Canteras de Puerto Rico is a quarry located
in Guanynabo. According to counsel, the stone mixed with clay that was
removed from the Project was not deposited at the quarry but rather was put in
the ground at property adjacent to the quarry, property that is being acquired
by Drillex.
It takes about ten to fifteen minutes to drive from the Project
to the property where the material was deposited. Tr. 9-11.

1943

4.
The parties further stipulate that the only legal
matter to be determined will be limited to whether
[Drillex's] operations at the . . • Project constitute
a mine under the provisions of the . . . [Mine Act.]
[Drillex] is not contesting the existence of the
violations underlying the citations issued by MSHA.
Jt. Exh. 1.
THE ISSUE

Was the Montehiedra Project subject to the jurisdiction of
the Mine Act on August 17, 1992.
PARTIES 1 ARGUMENTS
THE SECRETARY

The Secretary's counsel argues that the stipulations compel
the conclusion the Project was 'SUbject to Mine Act jurisdiction.
She bases her argument on both commission precedent and the 1979
agreement between MSHA and the Secretary's Occupational Safety
and Health Administration ("OSHA") (the "Agreement"). 5
Counsel focuses initially upon the nature of the activities
undertaken at the Project -- the drilling, blasting, excavation
and crushing of rock to be used as fill for embankment and road
base and the separation of waste from the rock and the removal of
waste from the site. Counsel states that two Commission cases,
Mineral Coal Sales, Inc., 7 FMSHRC 615 (May 1985), and Alexander
Brothers, Inc., 4 FMSHRC 541 (April 1982), have held that the
process of excavation and separation of minerals for a particular
use causes Mine Act jurisdiction to vest. Since these processes
were undertaken by Drillex, the Project came within the
jurisdiction of the Act. Sec. Br. 4-7. Further, under the
Agreement the specific activities which Drillex carried out at
the Project are allotted to MSHA's authority and thus were
covered by the Act. Sec. Br. 7-9.
DRILLEX

Counsel for Drillex counters that there is no precedent for
finding MSHA jurisdiction at construction sites in which the
extraction of minerals is not performed for their intrinsic
qualities as minerals, but rather is an incidental operation
needed for the construction of roads in the construction project.
Drx. Br. 3. Counsel notes the Act's definition of "mine"
5The Agreement was published in the Federal Register, 44 F.R. 2287
(April 17, 1979) and was subsequently amended, 48 F.R. 7521 (February 22,
1983). The Agreement is reprinted in the BNA Mine Safety and Health Reporter
and notations herein referencing the Agreement are cited to the Reporter.

1944

includes the milling of minerals and that milling may consist of
crushing.
She asserts, however, that for the Mine Act to apply,
the crushing of minerals must be associated with a process in
which, as the Agreement states, "one or more valuable desired
constituents of the crude is separated from the undesirable
contaminants with which it is associated," something counsel
argues Drillex did not do.
Id. 3-4. At the Project the stone
was reduced in size but it was not separated from any valuable
desired constituent.
Id. 5. Rather, the activities at the
Project were similar to a "borrow pit," an operation the
Agreement reserves for OSHA jurisdiction.
Counsel asserts that:
[A] jurisdictional line should be drawn
between crushing as part of a milling process
and crushi~g as a~ incidental operation to
extraction. Classification as the former
will undoubtedly carry with it Mine Act
coverage; classificatTon as the latter
results in [OSHAct] regulation.
Drx. Br. 5.
JURISDICTION

I conclude the Secretary's exercise of Mine Act jurisdiction
at the Project was permissible. I reach this conclusion despite
the fact the Project ~s tar from what is viewed traditionally as
a "mine." More than fifteen years have passed since the
effective date of the Act, yet it has been clear, almost from the
inception of enforcement, that the Act's pervasive regulation is
intended to apply not only to conventional mines, but also to
entities that are not engaged in "mining" in the classic sense.
Thus, while it may be true, as Drillex maintains, that there is
no precedent for the imposition of Mine Act jurisdiction at a
construction project where minerals are extracted solely for road
construction at the project -- a purpose incidental to the main
objective of the project -- that does not signal a prohibition of
the exercise of Mine Act jurisdiction.
The Act states that "[e]ach coal or other mine, the products
of which enter commerce . • . shall be subject to the provisions
of this Act.
30 U.S.C. § 803. Section 3(h) (1) of the Act
defines the facilities and processes that constitute a "coal or
other mine." 30 u.s.c. § 802(h) {1).
If what was done at the
Project came within this definition, Mine Act jurisdiction
applied.

1945

The statutory definition of "coal or other mine" states in
part:
(A)an area of land from which minerals are
extracted in nonliquid form . . . and (C)
lands, excavations . • . workings,
structures, facilities, equipment, machines,
tools or other property . • • used in, or to
be used in, or resulting from, the work of
extracting such minerals from their natural
deposits . . . or to be used in the milling
of such minerals,
or the work of preparing
,
. . . m~nera-~.s.

.

30 u.s.c. §802(h) (1). Thus, the Act classifies as mining and
subjects to its coverage, the extraction, milling and preparation
of minerals. The Act does not further define the terms "milling
of minerals" or "work of preparing . . • minerals." However, the
Commission has expressed its opinion that use of the terms
"signals an expansive reading--is to be given to mineral processes
covered by the Mine Act," Carolina Stalite Company,
4 FMSHRC 423, 424 (March 1982) n.3, rev'd sub nom. Donovan v.
Caroline Stalite Company, 734 F.2d 1547 (D.C. Cir. 1984}, a view
consistent with the Commission's recognition that a "broad
interpretation is to be applied to the Act's expansive definition
of a mine." Oliver M. Elam. Jr., Co., 4 FMSHRC 5, 6 (January
1982); see also Cyprus Industrial Minerals Co. v. FMSHRC, 664
F.2d 1116, 1117 (9th Cir. 1981); Marshall v. Stoudt's Ferry
Preparation Co., 602 F.2d 589, 592. (3rd Cir. 1979).
The dispositive question here is whether mineral extraction,
preparation or milling was engaged in at the Project? In mining,
t.he word "extraction" connotes the process of removing a mineral
from its natural deposit in the earth. See u.s. Department of
Interioru A Dictionary of Mining, Mineral and Related Terms
(1968) at 404. Mineral preparation and milling while not
specifically defined in the Act, are terms whose meanings involve
the processes by which a mineral is made ready for use. As the
parties have emphasized, MSHA and OSHA have entered into the
Agreement in order to delineate their respective areas of
authority with regard to mineral milling. Under the Agreement,
01
milling" is defined as "the art of treating the crude crust of
the earth to produce therefrom the primary consumer derivatives.
The essential operation in all such processes is separation of
one or more valuable desired constituents of the crude from the
undesired contaminants with which it is associated. 01 MSHA -OSHA
Interagency Agreement, Mine Safety & Health Reporter (BNA) ~
21:1101 (1983).

1946

The Agreement gives examples of milling processes that MSHA
has authority to regulate.
It states that milling consists of
one or more of various processes, including crushing and sizing,
and it defines "crushing" as "the process used to reduce the size
of mined materials into smaller, relatively coarse particles" and
"sizing" as consisting of "the process of separating particles of
mixed sizes into groups of particles of all the same size, or
into groups in which parties range between maximum and minimum
size." Id. ! 21.1103.
Given the meaning of the terms extraction and milling, I
find these activities were carried out at the Project and,
consequently, that the Project was a mine subject to Mine Act
jurisdiction. The parties have stipulated that Drillex, pursuant
to its agreement with A.H. Development Corporation performed
drilling, blasting and rock excavation at the Project. Rock is a
mineral or a COilip06it~ of minerals and drilling, blasting and
excavation were conducted to remove the rock from· the earth.
They were a part of the extraction process.
The parties have stipulated further that once the rock was
extracted it was reduced to gabion size by an employee using a
jack hammer and that what remained was further reduced to 3 inch
size or less by a crusher. The stipulations also reflect that
the rock was separated from the "contaminated material," stone
mixed with clay. Despite Drillex counsel's argument to the
contrary, I conclude these activities constituted milling.
In
this instance the rock itself was the "valuable desired
constituent of the crude" and it was separated from the waste
material, the stone mixed with clay.
It was then reduced into
"smaller relatively coarse particles" in two stages and was
separated into groups according to size. In other words, the
rock was crushed and sized.
Moreover 9 because the Secretary 1 s decision to exercise MSHA
authority at the Project was based on the statutory definition of
"mine," I must accord it deference. Carolina Stalite Co., 734
F.2d at 1552. In doing so, I am mindful of the admonition from
the Act's legislative history that "what is considered to be a
mine and to be regulated under [the] Act be given the broadest
possible interpretation, and . . • that doubts be resolved in
favor of inclusion of a facility within the coverage of the Act."
s. Rep. 95-181, 95th Cong., 1st Sess., 14 {1977), reprinted in
Legislative History of the Federal Mine Safety and Health Act of
1977 9 at 602.
It is true, as Counsel for Drillex points out, that the
Secretary has allotted jurisdiction over barrow pits to OSHA.

1947

The Agreement states:
"Barrow Pits" are subject to OSHA
jurisdiction except those borrow pits located
on mine property or related to mining
• • . "Barrow pit" means an area of land
where the overburden consisting of
unconsolidated rock, glacial debris, or other
earth material overlaying bedrock is
extracted from the surface. Extraction
occurs on a one-time only basis or only
intermittently as need occurs, for use as
fill materials by the extracting party in the
form in which it is extracted. No milling is
involved except for the use of a scalping
screen to remove large rocks, wood and trash.
The m~tarial is used by the extracting party
more for its bulk than its intrinsic
quantities on land which is relatively near
the borrow pit.
Mine Safety & Health Reporter, (BNA)! 21:1102 (1983). While the
stipulated operations at the Project were in some respects
similar to a barrow pit as defined in the Agreement, there are
crucial differences. At the Project extraction was not on a
one-time only basis or intermittent but was undertaken pursuant
to an agreement to produce a total of 20,000 cubic meters of
stone and was carried out approximately three times a week. More
important, mill1ng, in the form of separation, crushing and
sizing, was carried out following extraction. Further, it was
the particularly sized stone that was used primarily for a
specific purpose -- for road base and embankment fill -- and not
the bulk material originally extracted. When these factors are
added to the fact that the Secretary, who drafted and administers
the Agreement~ has concluded MSHA jurisdiction is appropriate
under the Agreement, I am compelled to reject the barrow pit
analogy. See New York State Department of Transportation, 2
FMSHRC 1749 (July 1980) (ALJ Laurenson).
For the foregoing reasons I hold the Secretary properly
exercised Mine Act jurisdiction when inspecting the Project.

THE VIOLATIONS AND CIVIL PENALTIES
Drillex does not contest the existence of the alleged
violations, and I find they occurred. I further find that in
proposing civil penalties for the violations the Secretary
properly considered all applicable civil penalty criteria and
that the proposed penalties are appropriate. Therefore, I assess
the penalties as proposed.

1948

CITATION/ORDER NO.

DATE

3611057
3611058
3611059
3611060
3611221
3611222
3611223
3611224
3611225
3611227
3611228
3611229
3611230
3611231

8/17/92
8/17/92
8/17/92
8/17/92
8/17/92
8/17/92
8/17/92
8/17/92
8/19/92
8/17/92
8/17/92
8/17/92
8/17/92
8/17/92

30 C.P.R.

s

56.1000
41.20
56.15001
56.12028
56.18012
56.15002
56.15003
56.11002
56.14132(a)
56.14130(g)
56.11001
56.14200
56.4203
56.18002(b)

PENALTY
$ 50
$ 50
$ 50
$108
$ 50
$189
$157
$119
$119
$119
$119
$337
$ 50
$ 50

ORDER
The citations/orders referenced above are AFFIRMED. Drillex
is ORDERED to pay the civil penalties for the violations as
assessed totalling one thousand five hundred and sixty-seven
dollars ($1,567) within thirty (30) days of the date of this
decision.
This proceeding is DISMISSED.

flvVtc/~~~
David F. Barbour
Administrative Law Judge
Distribution~

Jane Snell Brunner, Esq., Office of the Solicitor, u.s.
Department of Labor, 201 Varick Street, New York, NY 10014
(Certified Mail)
Doris Quinones-Tridas and Miguel E. Bonilla-Sierra, Gonzalez,
Bonilla and Quifiones-Tridas, 14 O'Neil Street, Suite c,
Hato Rey 0 PR 00918 (Certified Mail)
fepy

1949

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

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 93-184
A.C. No. 15-11620-03533

v.

No. 2 Hall

PYRAMID MINING INCORPORATED,
Respondent
DECISION

Appearances:

Before:

Darren L. Courtney, Esq., u.s. Department of
Labor( Office of the Solicitor, Nashville,
Tennessee for Petitioner;
Carl B. Boyd, Jr., Esq., Henderson, Kentucky.

Judge Weisberger
Statement of the Case

This case is before me based on a Petition for Assessment of
a civil Penalty filed by the Secretary (Petitioner) alleging a
violation by the Operator (Respondent} of 30 C.F.R. § 77.1505.
Pursuant to Notice, the case was heard in Evansville, Indiana, on
July 8v 1993. At the hearing, Darold Gamblin testified for
Petitioner. Joe Clark, and James Michael Hollis, testified for
Respondent. The parties filed Briefs on August 23, 1993.
Findings of Fact and Discussion
Respondent operates a coal mine known as Hall No. 2.
Respondent arranged for a.contractor to extract coal from an
above ground seam by use of a continuous miner, or auger. The
seam was developed in sections commencing November 1991. 1 In
normal operations the miner excavated a hole 10 to 11 feet wide,
approximately 4 feet, high and 420 feet in length. Once a hole
was excavated the miner was moved 3 to 4 feet, and another hole
was excavated. This cycle continued as the section was
1

The sequence in which the sections were developed, the
month and year in which they were developed, and their relative
locations, are depicted on Respondent's Exhibit No. 2.

1950

developed. In November 1992, 4 Sections had been excavated, and
one was being mined.
on March 20, 1992, the subject site was inspected by MSHA
Inspector Darold Gamblin. Approximately 35 to 40 hole~ were not
blocked. These were located in an area 2,000 feet from the area
that was being mined. In the normal course of mining, no one
enters unblocked auger holes. However, according to Gamblin,
children from a nearby residential area might enter these
unblocked holes. A person entering an auger hole would be
exposed to the hazards of unsupported roof, methane, or
insufficient oxygen. Exposure to these hazards could result in a
serious injury or fatality.
Gamblin issued a citation alleging a violation of 30 C.F.R.
77.1505, which provides as follows: "Auger holes shall be
blocked with highwall spoil or other suitable material before
they are abandoned."
§

Respondent did not impe~ch or contradict Gamblin's testimony
regarding the existence of auger holes that were not blocked.
The issue for resolution is whether the holes were abandoned.
Gamblin determined that the holes were abandoned because no
mining was taking place in the sections at issue. The only area
being mined was located 2,000 feet away from the cited holes. In
this connection, Gamblin opined that it would take the miner 2 to
3 days to travel from the area where it was mining on March 20,
to return to the he!~= th~t h~d not been blocked. He indicated
that he had seen the same holes in January 1992 2 , during a
previous examination. 3 Gamblin noted that he does not know of
any reason why an operator would leave an area where they were
drilling auger holes, and go to a different section of the mine,
and then return later to the original area.
According to Joe Clark, Respondent's ground manager, in the
normal course of mining, auger holes are developed to a length of
2

There is no clear convincing evidence to establish when
the open holes cited in March 1992 had been augered. Joe Clark,
Respondent's ground manager, when asked when they were originally
drilled answered as follows: "They would have been drilled
between November and March." (Tr. 58)
(Emphasis added).
1

3

In response to questions from counsel, Gamblin indicated
that, to his "knowledge" Respondent did not ever go back and
~'redrill" those holes (Tr. 35) (sic).
The record does not
establish the basis for Gambin's "knowledge". Also, there is no
evidence in the record from anyone who had personal knowledge as
to whether Respondent returned to further excavate the holes in
issue after they had been initially augered.

1951

420 feet. However, according to Clark, at times, either due to
geological conditions, or more commonly due to mechanical
problems with the miner, an auger hole was not drilled to the
full length of 420 feet. He indicated that the miner at issue
had lots of mechanical problems. He indicated "we" (T~.49) were
not satisfied with the performance of the contractor, who did not
want to re-enter holes that had not been completed. He said that
11 we were going to insist that they go back and get full
penetration" (Tr. 55). He said that Respondent did not consider
the holes to be abandoned.
James Michael Hollis, Respondent's safety and reclamation
supervisor testified that as far as Respondent was concerned the
holes were not abandoned, and it was the "intent" of Respondent
to get full penetration (Tr.70). He said that " ... we were going
to go back and try to go back to those holes to get full
penetration". (Tr. 75-76) (sic)
There is no definition in Part 77 of volume 30 of the Code
of Federal Reg·u.:J.ations, of the word "abandoned. 114 Hence,
reference is made to the common meaning of the word "abandoned."
In Webster's Third New International Dictionary, (1986 ed.)
("Webster's"), "abandon" and the transitive verb "abandoned", are
defined as 11 1: to cease to assert or exercise an interest, right
or title to esp. with intent of never again resuming or asserting
it; 2: to give up (as a position, a ship) by leaving,
withdrawing, ceasing to inhabit, to keep, or to operate often
because unable to withstand threatening dangers or encroachments
•••• " "abanado~ed 11 1 when used as an adjective, is defined in
Webster's, supra as "1: given up: DESERTED, FORSAKEN •••• 11
The record does not convencingly establish.the exact dates
when the contractor stopped the initial drilling of the holes in
issue. Hence, I cannot make a finding as to the specific length
of time Respondent had ceased working on these holes when cited
by Gamblin on March 20, 1992.
On the other hand, I find the
testimony of Gamblin insufficient to rebut the testimony of
Respondent's witnesses, whom I found credible, regarding
Respondent's intent to go back and get full penetration of the
holes in question. In this connection I note that on March 20,
1992 1 when the unblocked holes were cited, the mine site at issue
was still being minded.
4

Petitioner cited the definition of "abandoned areas" as
set forth in 30 C.F.R. § 75.2(h). This definition is not
relevant to the case at bar. Part 75 of 30 C.F.R. supra,
pertains to underground mines only. In contrast Part 77, which
governs this proceeding, pertains to surface mines, and surface
areas of underground mines. There is no evidence of any
regulatory intent that definitions set forth in Part 75 supra,
are to be applied to Part 77 supra.

1952

Within the above framework, I conclude that Respondent, on
March 20, 1992, had not "abandoned" the cited holes as that term
is commonly defined. Accordingly, Respondent was not in
violation of Section 77.1505, supra, and the Citation issued by
Gamblin is ordered to be VACATED.
ORDER
It is ORDERED that

Distribution:

thi~D:::_
Avram Weisberger
Administrative Law Judge

Darren L. Courtney, Esq., Office of the Solicitor, u. s.
Department of Labor, 2002 RichardJones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail) ·
Carl B. Boyd, Jr., Esq., 223 First Street, Henderson, KY
(Certified Mail)
nb

1953

42420

I'BDERAL IUD SAFETY DD BEAL'l'B REVJ:BW COJOUSSIOH
OFFICE OF ADMINISTRATIVE LA~ JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 92-368-M
A. C. No. 11-00134-05512

v.

Midway Stone
MOLINE CONSUMERS COMPANY,
Respondent
DECISION
Appearances:

Before:

Christine M. Kassak, Esq., Office of the Solicitor,
U. s. Department of Labor, Chicago, IL, for the
Petitioner:
Robert P. Boeye, Esq., Califf & Harper, P.C.,
Moline, Illinois, for Respondent.

Judge Feldman

This case is before me as a result of a petition for civil
penalty filed by the Secretary of Labor pursuant to section
105(d) of the Feder~l Mine Safety and Health Act of 1977, 30
u.s.c. § 801, et seg., (the Act}. This matter was heard on July
13, 1993, in Peoria, Illinois. Mine Safety and Health
Administration Inspector {MSHA) John E. Guthrie and Assistant
District Manager John Waxvik testified for the Secretary. The
respondent called Oscar Ellis, the respondentws President, James
Chevillev a union steward at the Midway Stone Quarry, James
Papenhausenv the Safety Director, and Scott Hanson, a mine
consultant. The parties' post-hearing briefs are of record.
STATEMENT OF THE CASE
This single citation proceeding concerns Citation No.
4099296 issued on May 6, 1992, by Inspector John E. Guthrie for
an alleged violation of the mandatory safety standard contained
in section 56.14107(a) 9 30 C.F.R. § 56.14107(a) with respect to
the respondentws primary jaw crusher at its Midway Stone Mine
(Midway). Section 56.14107(a) provides:

1954

Moving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains,
drive, head, tail, and take-up pulleys, flywheels,
couplings, shafts, fan blades, and similar moving parts
that can cause injury (emphasis added). 1
·
The citation was designated as nonsignificant and substantial in
apparent recognition of the perimeter fencing of the subject
primary crusher. However, the Secretary seeks to impose a civil
penalty of $700.00 under the special penalty assessment
provisions in section 100.5, 30 C.F.R. § 100.5.
The issues for determination are whether the respondent's
perimeter fencing of the moving parts in issue satisfies the
guarding requirements of Section 56.14107(a), and, if not, the
propriety of the Secretary's imposition of a special assessment
in this case. As noted below and at the hearing, the question of
whether the respondent's perimeter fencing provides an equal or
greater level of protection than that afforded by the safety
standard in Section 56.14107(~1 is fibt in issue and is beyond the
scope of this proceeding. This question must be resolved in
accordance with the petition for modification procedures
promulgated in section 101(c) of the Act, 30 u.s.c. § 811(c).
STIPULATIONS

At the hearing, the parties entered the following
stipulations in th~ ~~c0~d (tr. 9-13):
1.
The Federal Mine Safety and Health Review Commission
has jurisdiction over these proceedings.
2o
Respondent, Moline Consumers Company, owns and operates
the Midway Stone Mineo

3.
The Midway Stone Mine extracts dolomite which is
crushed and broken.

4o
The Midway Stone Mine is located in Rock Island County,
Illinois"
5o

Respondent's operations affect interstate commerce.

1

Subsection (b) of section 56.14107 specifies that
guarding of exposed moving parts is not required where the parts
are at least .seven feet away from walking or working surfaces.
The parties have stipulated that the primary crusher parts in
question are less than the requisite distance of seven feet.
(Stipulation No. 19). Therefore the guarding requirements of
section 56.14107(a) are applicable in this matter.

1955

6.
The Midway Stone Mine worked 25,008 production hours
from January 1, 1991 through December 31, 1991.
7.
Respondent, worked less than 700,000 production hours
at all of its mines from January 1, 1991 through December 31,
1991.
8.
Respondent had 12 violations during the preceding 24
months ending on July 15, 1992.
9.
The payment of the $700 special penalty assessment will
not affect Respondent's ability to continue in business.
10. On May 6, 1992, John E. Guthrie,(the "inspector") an
authorized representative of the Secretary of Labor, issued
citation No. 4099296 at Respondent's, Moline Consumers Company's,
Midway Stone Mlne, ln Rock Island County, Illinois, alleging a
violation of 30 C.F.R. § 56.14107 in that Respondent had failed
to provide guarding for its primary jaw crusher drive sheaves and
belts and flywheel.
11. A complete and accurate copy of Citation No. 4099296 is
attached hereto as Exhibit A.
12. The correct Mine Identification Number for the Midway
Stone Mine is 11-00134.
13. On May 6, 1992, Respondent did not have pending a
Petition for Modification for this mine identification number.
14. Respondent has not, to date, filed a Petition for
Modification for this mine identification number.
15. Respondent was aware that MSHA required the primary
crusher to be guarded"
16. On May 6, 1992, the primary jaw crusher, which is the
subject of Citation Number 4099296, was guarded by a fence and a
gate which was locked, bolted, and had a starter wire connection
at the gate.

l7o Respondent's workers leave the gate unlocked at night
so that greasing can be performed prior to start up.
18. On may 6, 1992, the electric motor, drive sheave and
belts and the flywheel on the primary jaw crusher, which are the
subject of Citation No. 4099296, did not have individual guarding
inside the fenced enclosure.
19. The exposed moving parts on the primary jaw crusher,
which are the subject of Citation No. 4099296, are less than
seven feet above walking or working surfaces.

1956

20. Contact with the moving parts on the primary jaw
crusher, which are the subject of Citation No. 4099296, could
result in entanglement, crushing andjor death.
PRELIMINARY FINDINGS

The essential facts are not in dispute and can be briefly
stated. The respondent operates the Midway Stone Quarry in Rock
Island County, Illinois. The primary crusher machine at this
facility has drive assemblies which include drive belts which run
between sheaves andjor flywheels.
Pinch points occur when the
belts pass over the flywheels.
The respondent has erected a
chain link fence approximately 12 feet wide by 17 feet long by
6 1/2 feet high around the perimeter of the crusher blocking
access to the area where the belts and drives are located. The
only entrance into the area is through a gate. The gate is
secured by a stLap and bolt locking system and, in addition, the
gate is locked with a padlock. The key to the padlock is located
in a separate structure approximately 250 feet from the crusher.
As a further measure of protection, the respondent has installed
an interlock electrical system at the gate. This system requires
the unplugging of an electrical cord whenever the gate is opened
which automatically shuts down the crusher.
Finally, the respondent has established a "lock-out"
procedure which requires all employees to first shut off the main
power source to the primary crusher before entering the fenced in
area.
In order to shut off the main power source, it is
necessary to go to a separate structure located approximately 250
feet from the machinery. This procedure prevents exposure of
personnel to parts that continue to move for a short period of
time even though power has been turned off.
(Tr. 210, 211, 216,
219-221)o
The respondent utilizes a similar method of area fencing of
its primary crusher at its Valley Plant No. 7 (Valley) facility.
(Tr. 34). On October 17, 1990, Administrative Law Judge George
A. Koutras issued a decision wherein he concluded that the
respondentvs perimeter fencing of its primary crusher at Valley
did not satisfy the guarding requirements of Section 56.14107.
Moline Consumers Company, 12 FMSHRC 1953 (October 1990). Judge
Koutras 1 decision was based on the fact that the crusher "· • •
belt drive was not individually physically guarded at the time of
the inspection, and the gate which served as guard was unlocked
and opened, thereby allowing free access to the crusher belt
drive area immediately inside the gate." Id. at 1965. MSHA
Supervisory Inspector Ralph D. Christensen permitted the
respondent to abate the citation in Judge Koutras• case by
replacing the padlock with the installation of a nut and bolt to
secure the gate. Judge Koutras questioned the effectiveness of

1957

this solution. Id. at 1967. Consequently, Judge Koutras, noting
that "[t]he belt drive itself continues to be unguarded," urged
the respondent to initiate modification proceedings under section
101(c) of the Act.
On November 30, 1990, in response to Judge Koutras• decision
and the nut and bolt use allowed by Christensen, MSHA
specifically addressed the issue of remote barriers and issued a
memorandum to North Central District enforcement personnel
informing them that perimeter guarding, regardless of how gates
are secured, does not comply with the guarding requirements of
section 56.14107. {P's Ex. C). The memorandum noted that
affected operators should be given an opportunity to comply
before being cited. Christensen is a Field Office Supervisor in
Peru, Illinois and does not have the authority to establish MSHA
policy. (Tr. 132-134, 169, 170-173).
By petition dated July 12, 1991 (amended July 26, 1991), the
respondent sought to be relieved of it obligations under section
56.14107 for its crushers at'its Valley and Allied Stone (Allied)
plants. The respondent.requested a variance from the standard in
order to use perimeter or area guarding by fence, gate and
padlock. The respondent's petition was initially denied by
MSHA's district manager on October 2, 1991 and was denied on
reconsideration on November 20, 1991. Thereafter, on December
17, 1991, the respondent filed a notice of appeal. The hearing
on the respondent's petition for modification was ultimately
scheduled for June 3, 1992, before Department of Labor
Administrative Law Judge Robert s. Amery. 2
In the interim, on or about April 30, 1992, Inspector
Guthrie inspected the respondent's Midway facility. At that
time 1 the primary crusher was not in operation. Guthrie noted
that the pinch points of the primary crusher were not
individually guarded. (Tr. 50-51). Guthrie advised Spud
Reiling, the plant supervisor, that the respondent must "·
guard the moving parts at the point of contact rather than area
guarding," once production resumed.
(Tr. 60).
Guthrie returned to Midway on May 6, 1992, and determined
that individual guarding had not been installed at the crusher's
moving parts despite his earlier warning that point of contact
guarding was required. Consequently, Guthrie issued Citation No.
4099296 and concluded that the respondent's underlying negligence
associated with the violation was high. (Tr. 56-57).

2 A hearing

on a petition for modification is held before a
Department of Labor Administrative Law Judge. 30 C.F.R. §§
44.20-44.35 (hearings).

1958

The modification hearing for the Valley and Allied crushers
was held on June 3, 1992, before Judge Amery. On September 28,
1992, Judge Amery decided that the respondent's alternative
method of guarding, which consists of a fence with a gate
equipped with a padlock, plus a bolt and nut to form a barrier,
as well as an electrical interlock system, warning signs and the
respondent's lockout procedure, assures at least the same measure
of protection as that afforded under the provisions of section
56.14107. Judge Amery imposed the additional requirement that
the respondent place a box or cage over the rotating motor shaft
during annual vibration tests to check the bearings when the
drive belts are removed. Petition for Modification Hearing,
Moline Consumer's Company v. MSHA, {Amery Decision) DOL No. 92MSA-10 (September 28, 1992); Joint Ex. No. 3.
FURTHER FINDINGS AND CONCLUSIONS
Fact of Occurrence of violation
As noted above, the only .. dispositive issue is whether the
respondent's system of area guarding satisfies, not equals, the
mandatory safety standard in section 56.14107.
In this regard,
the respondent has acknowledged, in its petition for modification
proceeding before Judge Amery, that its system of area guarding
is an alternative to the MSHA approved point of contact guards of
the primary crusher's moving parts. Amery Decision, Joint Ex. 3,
pp. 4-5, 7. Having argued that its area guarding affords equal,
if not better, protection than the mandatory standard at Valley
and Allied, the respondent is estopped from asserting that its
area ~uarding at Midway meets the mandatory standard.
(Tr. 107108).
However, the respondent asserts that it reluctantly
participated in the modification proceeding to avoid further
enforcement action although it firmly believes that its area
guarding meets the mandatory standard.
{Tr. 99-103). Therefore,
estoppel notwithstanding, I shall address this issue on the
merits.

In resolving this question, it is fundamental that we look
to the language and purpose of the standard. Where the terms of
a statutory or regulatory provision are clear, such terms must be
given effect unless the legislative or regulatory body clearly
3

Although I noted that I was inclined to conclude that the
respondent was estopped from asserting that its area guarding
meets the mandatory safety standard contained in section
56.14107, I withheld final judgment on this issue and permitted
the respondent to present its entire case concerning whether area
guarding satisfies the mandatory standard.
(Tr. 107-108, 114115).

19 59

intended the words to have a different meaning. See Utah Power
and Light Company, 11 FMSHRC 1926, 1930 (October 1989) citing
Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842-843 {1984); United
States v. Baldridge, 677 F.2d 940, 944 (D.C. Cir. 1982); Phelps
Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1192-1193 (9th Cir. 1982).
Turning to the language of section 56.14107, it is noteworthy
that this section is entitled "Moving Machine Parts 11 • This
mandatory standard is obviously intended to protect individuals
from moving component parts rather than the machine itself. This
standard protects individuals who perform maintenance. It also
protects against injury from parts that continue to move even
after equipment is de-energized. Significantly, Judge Amery
recognized this distinction by imposing the requirement to shield
(guard) the motor shaft as a component part during annual
vibration testing in addition to the respondent's system of area
guarding the entire piece of equipment.
Moreover, Scott Hanson, the respondent's consultant witness,
recognized that section 56.14107 is intended as a safety standard
to be applied to moving parts' 'rather than an entire machine.
(Tr. 286-287). Therefore, the plain and unambiguous language of
section 56.14107 fails to support the respondent's contention
that its area guarding meets the standard.
Consistent with the plain meaning of this mandatory safety
standard, Commission Administrative Law Judge Morris has also
concluded that a gate 4 to 5 feet from an unguarded chain drive
assembly on a hopper feen~r conveyor belt does not satisfy the
standard in 56.14107. See Yaple creek Sand & Gravel, 11 FMSHRC
1471 (August 1989). Similarly, Department of Labor modification
proceedings have recognized that area guarding is an alternative
to the required guarding of moving parts contained in section
56.14107. See Petition for Modification Hearing, Richem
Construction Co., Inc. v. MSHA, DOL No. 92-MSA-18, (March 10,
1993) (ALJ Vittone}; Amery Decision, Joint Ex. 3.
While I am cognizant of the respondent's sincere and
apparently effective efforts to protect its employees from
exposure to the crusher's moving parts, it is the respondent's
responsibility to pursue alternative safety measures through the
petition for modification procedure contained in section 101(c)
of the Act. If an operator fails to do so it must be subject to
civil penalty sanctions. Any other approach would permit the
operator, rather than the Secretary, to unilaterally determine
whether alternatives to mandatory safety standards are effective.
Otis Elevator Company, 11 FMSHRC 1918, 1923 (October 1989).
Thus, the respondent's area guarding of its primary crusher at
its Midway facility, for which it has not filed a petition for

1960

modification, constitutes a violation of the mandatory standard
contained in section 56.14107. Accordingly, Citation No. 4099296
shall be affirmed.
Special Assessment
Having determined the fact of the violation, the rema1n1ng
issue is whether a waiver of the regular assessment formula and
the imposition of a special assessment is appropriate in this
case. The Secretary proposes a civil penalty of $700.00 for this
non-significant and substantial violation under the special
assessment criteria in section 100.5(h) which permits special
assessments for "[v)iolations involving an extraordinarily high
degree of negligence or gravity or other unique aggravating
circumstances."
A special assessment was imposed by MSHA on May 22, 1992,
because "[t]he company continues to use a fence and gate system
of guarding on primary crushel.".s. A petition for variance was
denied on November 21, 1991. Therefore, Citation 4099296 should
be special assessed." (Tr. 138-139; Petitioner's Ex. D).
However, the respondent»s hearing before Judge Amery was not
heard until June 3, 1992. The respondent is entitled to exhaust
its administrative remedies in an effort to prevail on the merits
of its modification petition. The respondent's failure to comply
with MSHA's directive to install pinch point guarding during the
pendency of its modification petition under circumstances where
there is no likelihood of serious injury is not indicative of
high negligence.
However, the respondent acts at its own peril with respect
to the imposition of civil penalties if it fails to seek
modification authority for a particular mine. 4 Had the
respondent included Midway in its Valley and Allied modification
petition prior to the issuance of Citation No. 4099296, section
44.4(c~ would provide a basis for vacating the citation in
issue.
The respondent's failure to a seek a pertinent
modification in this case does not constitute the requisite gross
4 Although

the respondent filed a petition for modification
for its area guarding at Valley and Allied, section 44.11, 30
C.F.R. § 44.11, requires that all mines affected must be
identified in the petition. For reasons best known to the
respondent, it failed to include the Midway primary crusher in
its petition for modification.
5

Section 44.4(c), 30 C.F.R. § 44.4(c), provides that the
granting of a modification shall be considered as a factor in the
resolution of any enforcement action previously initiated for
claimed violation of the subsequently modified mandatory safety
standard.

1961

negligence or other aggravating conduct necessary for a special
assessment. Significantly, the Secretary has conceded that the
respondent's failure to install site-specific guarding at pinch
points, in view of the respondent's alternative measures, did not
expose personnel to any significant risk of injury.
(T~. 180).
Consequently, Waxvik's characterization of high negligence as
"[t]he mine operator's flagrant disregard for the mandatory
safety standard by substituting area guarding for point of
contact guarding" is not supported by the evidence.
(Tr. 149).
The respondent cannot be charged with a "flagrant disregard" of a
mandatory standard when it has acted to provide its employees
with equivalent protection. Therefore, the Secretary has failed
to demonstrate that the facts of this case warrant the imposition
of a special assessment. Accordingly, considering the criteria
of section 110(i) of the Act, including the low degrees of
gravity and negligence associated with the subject violation, I
am assessing a c
1 penalty of $20.00 in this matter.
Finally, the respondent must file a pertinent petition for
modification for its Midway p_:rimarycrusher within 45 days from
the date of this decision.
If a petition for modification is
timely filed, MSHA should defer enforcement of the provisions of
section 56.14107 pending the outcome of the petition.
ORDER
Accordingly, Citation No. 4099296 IS AFFIRMED. IT IS
ORDERED that the respondent pay a civil penalty of $20.00 within
30 days of the date of this decision and, upon receipt of
payment, this proceeding IS DISMISSED. IT IS FURTHER ORDERED
that the respondent shall file, within 45 days of the date of
this decision, a petition for modification of the provisions of
section 56.14107 as they apply to its primary crusher at its
Midway Stone Quarry.

Vq,~ ~
c . : o l d Feldman
Administrative Law Judge
(703) 756-5233
Distribution~

Christine M. Kassak, Esq., u.s. Department of Labor, 230 South
Dearborn St., 8th Floor, Chicago, IL 60604 (Certified Mail)
Robert P. Boeye, Esq., Califf & Harper, P.C., 600 First Midwest
Bank Building, 506 15th Street, Moline, IL 61265 (Certified Mail)
dcp

1962

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

SEP 2 4 i993
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.
CALMAT OF CENTRAL
CALIFORNIA,
Respondent

Docket No. WEST 93-362-M
A. C. No. 04-01711-05522

..

River Rock Plant

«

DECISION APPROVING SETTLEMENT
ORDER TO PAY

Before:

Judge Merlin

This case
before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977. On June 18, 1993, the Solicitor filed a
motion to approve settlement of the one violation involved in
this case. The Solicitor sought approval of a 50% reduction in
the penalty amount. On August 3, 1993, an order was issued
disapproving the settlement because the Solicitor gave no reasons
to support the proposed reduction. The Solicitor was ordered to
file additional information to support his motion.
On August 24, 1993, the Solicitor filed an amended motion to
approve settlement and on September 17, 1993, a second amended
settlement motion.
In the second amended settlement motion the Solicitor
furnishes reasons for the suggested reduction from $1019 to $509.
The citation was issued for an inoperative back-up alarm on a
crane. According to the Solicitor, gravity and negligence were
less than originally thought because the crane was out of service
when the citation was issued and the faulty alarm would have been
discovered during the mandatory pre-operation inspection. As a
resultQ the Solicitor has agreed to delete the significant and
substantial designation.
I accept the Solicitor's representations and I conclude that the settlement is appropriate under the
six criteria set forth in section llO(i) of the Act. The file
contains a memorandum from the Civil Penalty compliance Office
for MSHA indicating that the operator has paid $451.50 1 for this
case.

$451.50 was the amount specified in the original
settlement motion but the Solicitor has advised my law clerk that
the figure was erroneous.
1963

In light of the foregoing, it is ORDERED that the settlement
motion filed September 17, 1993, is ACCEPTED as a response to the
August 3 order.
It is further ORDERED that the recommended settlement be
APPROVED and the operator having paid $451.50, is ORDERED TO PAY
$57.50 within 30 days of the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Steven R. DeSmith, Esq.~ Office of the Solicitor, U. s.
Department of Labor, 71 Stevenson street, Room 1110, San
Francisco, CA 94105-2999
(Certified Mail)
Mr. Frank D'Orsi, Calmat of Central California, 11599 Noah Friant
Road, Fresno, CA 93710 (Certified Mail)
/gl

1964

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

<'£ 1.": ·:.:t. ,~r •L0..-. 93
.)

i""

DISCRIMINATION PROCEEDING

BOBBY L. JOHNSON,
Complainant

Docket No. WEVA 93-105-D

v.
MORG CD 92-09

BOHICA, INCORPORATED,
and/or
SHILOH MINING,
Respondent

Cove Run Deep Mine No. 1

ORDER OF DISMISSAL

Before:

Judge Weisberger

on August 31, 1993 an Order was issued wherein Complainant
was ORDERED as follows, " ..• within 10 days of this Order,
Complainant Johnson shall file either a statement withdrawing
this complaint or a statement setting forth good cause why such a
statement was not filed. It is further ordered, that if
Complainant fails to comply with this order, this case will be
DISMISSED."
To date, Complainant has not compiled with the Order.
Accordingly, it is ORDERED that thi c se be DISMISSED.

Judge
Distribution:
Bobby L. Johnsonu Route l, Box 157-A, Tunnelton, WV
(Certified Mail)

26444

Mr. Robert J. Bailey, President, Bohica, Inc., Rt. 3, Box 39,
Philippi, WV 24614 (Certified Mail)
Mr. Wayne Stanley, Shiloh Ming, Route 3, Box 40, Bridegeport, WV
26370 (Certified Mail)
nb

1965

PBDBRAL
XIBB SAFETY MID BBALTB RBVJ:EW COIOUSSIOH
..
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SEP 2 71993
DISCRIMINATION PROCEEDINGS

LONNIE DARRELL ROSS,
Complainant

v.

Docket No. KENT 91-76- D
MSHA No . BARB-CD-90-40

SHAMROCK COAL COMPANY, INC .
Respondent
CHARLES EDWARD GILBERT,
Complainant

:

Docket No . KENT 91-77 -D
MSHA No . BARB-CD-90- 41

v.
:

SHAMROCK COAL COMPANY, INC.,
Respondent

.

Mine No. 10

DECISION ON REMAND

Appearances :

Phyllis L. Robinson, Esq., Hyden, KY, for
Complainants;
Tony Oppegard, Esq., Lexington, KY, for
Mine Safety Project of the Appalachian Research &
Defense Fund of Kentucky, Inc .; and
Timothy Wells, Esq . , Manchester, KY, for the
Respondent.

Before:

Judge Fauver

on June 24, 1993, the Commission remanded these consolidated
cases for clarification of interest awards and recalculation of
the back pay awards ~Y deducting unemployment compensation
received during the backpay periods.
After extensive conferences and negotiations, the parties
have moved for approval of a settlement agreement proposing the
terms of an order on remand . I have reviewed the proposal and
accompanying documents, and conclude that the proposed order i s
appropriate .
The parties have submitted to the judge the determination of
an appropriate attorney fee . Having considered the documentation
submitted regarding an attorney fee, I conclude that Attorney
Phyllis L. Robinson is entitled to an attorney fee of $150 . 00 per
hour for 69.50 hours ($10,425 . 00) plus reimbursable expenses of
$95 . 34, for a total attorney fee of $10,520 . 34.

1966

ORDER

WHEREFORE ~T IS ORDERED that:
1.
The parties' settlement agreement is APPROVED as a full
and final settlement of all claims and issues raised in these
p r oceedings .

2.
Within 30 days of the date of this Decision, the
parties shall comply fully with paragraphs 1 and 2 of the agreed
proposed order on remand.
3.
Within 30 days of the date of this Decision .
Respondent shall pay Complainants' Attorney, Phyllis L. Robinson,
an attorney fee of $10,520 . 34 .

w~~~/WV~
William Fauver

Administrative Law Judge

Distribution:
Phyllis L. Robinson, Esq., P.O. Box 952, Hyden, KY
(Certified Mail)

41749

Tony Oppegard, Esq., Mine Safety Project of the Appalachian
Research & Defense Fund, 630 Maxwelton Court, Lexington, KY
40508 (Certified Mail)
Timothy Wells, Esq . , P.O . Box 447, Manchester, KY
(Certified Mail)
jefw

19 6 7

40962

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

SEP 2 7 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 92-340
A.C. No. 05-02820-03621
Docket No. WEST 92-384
A.C. No. 05-02820-03627

WYOMING FUEL COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH.
ADMINISTRATION (MSHA),
Petitioner

v.

Golden Eagle Mine
CIVIL PENALTY PROCEEDING
Docket No. WEST 93-186
A.C. No. 05-02820-03657A
Golden Eagle Mine

EARL WHITE, employed by
BASIN RESOURCES, INC.,
Respondent
DECISION
Appearances~

Margaret A. Miller, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner;
Charles w. Newcom, Esq. 0 Denver, Colorado,
for Respondentso

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges Respondent Wyoming Fuel
Company with violating safety regulations promulgated under the
Federal Mine Safety and Health Act, 30 u.s.c. section 801 et seg.
(the "Act"). The Secretary further charges Respondent White with
violating section 110(c) of the Act.
A hearing was held on the merits in Denver, Colorado on
May 26, 1993, and concluded on June 21, 1993. The parties filed
post-trial briefs.
The orders/citations in Docket Nos. WEST 92-340 and
1968

WEST 92-384 were issued to Wyoming Fuel Company as the mine
operator for events that occurred on Sunday, June 23, 1991.
However, it is uncontroverted that the Golden Eagle Mine was
purchased by the owner of Basin Resources, Inc. from the owner of
Wyoming Fuel Company on June 1, 1991.
(Tr. 205-206).
No issue
was raised as to this facet of the case.
In Docket No. WEST 93-186 the Secretary seeks a civil penalty, under section 110(c) of the Act, against Earl White employed by Basin Resources, Inc.
In view of the above, references in this decision may be to
Wyoming Fuel Company ("WFC") or Basin Resources, Inc. ("Basin")
or Earl White ("White").
DOCKET NO. WEST 92-384
CITATION NO. 3905711

This citation, issued under Section 104(d) (2) of the Act,
alleges a violation of 30 C.F.R. § 75.316. 1 The citation reads
as follows:
The methane, ventilation and dust control plan,
approved April 16, 1991, was not in compliance in the
northwest #1 longwall, MMU 009-0, in that page 3 of
this addendum shows #3 headgate entry as a return air
course. The air was redirected on 6-23-91 in this
entry and it is now on intake and, in turn, the air is
coursed through #1 and #2 bleeder entries toward the
new proposed exhaust shaft. At the shaft, the air is
coursed to #58 crosscut of the tailgate return.

The regulation, Section 75.316, provides as follows:
Section 75.316 Ventilation System and Methane and Dust
Control Plan.
(Statutory Provisions)
A ventilation system and methane and dust control plan
and revisions thereof suitable to the conditions and
the mining system of the coal mine and approved by the
Secretary shall be adopted by the operator and set out
in printed form on or before June 28, 1970. The plan
shall show the type and location of mechanical
ventilation equipment installed and operated in the
mine, such additional or improved equipment as the
Secretary may require, the quantity and velocity of
air reaching each working face, and such other
information as the Secretary may require. Such plan
shall be reviewed by the operator and the Secretary at
least every 6 months.

This section is now recodified at 30 C.F.R. S 75.370-372.

1969

DOCKET NO. WEST 93-340
CITATION NO. 3244408
This citation, issued under Section 104(a) of the Act,
alleges a violation of 30 C.P.R. S 75.316 {cited above). The
citation reads as follows:
Methane in excess of 4.0\ and 5.0\ was present out by
the Kennedy stoppings in crosscuts #62 and #63 between
#3 and #4 entries on the #3 side of the northwest
longwall tailgate area. Also, oxygen in amounts of
17.1\ was measured with hand-held detectors at least
four feet out by the stopping in #62 crosscut. Bottle
samples were collected to substantiate this citation
and order.
This was the main contributing factor to the issuance
of imminent danger order #3244407. Therefore, an
abatement date was not set.

Imminent Danger order No. 3244407
This imminent danger orderwas issued immediately before
citation No. 3244408. The order, issued under Section 107(a) of
the Act, was not contested and it has become a final order of the
Commission.
The order itself reads as follows:
An imminent danger existed in the tailgate area of the

northwest longwall section in that methane (CH4) in
amounts exceeding 4.0\ and 5.0\ were detected with a
permissible methane detector out by the Kennedy
stoppings in crosscuts #62 and #63 between #3 and #4
entries of the tailgate. A violation of 75.329 C.F.R.
30.

DOCKET NO. WEST 93-196
Secretary Vo Earl White
Employed by Basin Resources, Inc.
In this case the Secretary, pursuant to Section llO(c) of
the Actu seeks civil penalties against Earl White, Respondentu
for knowingly authorizing, ordering, or carrying out, as an agent
of the corporate mine operator, the violations alleged herein.
CITATION NO. 3905711
DISCUSSION AND FINDINGS
The critical issue in this citation is whether Basin and its
manager, Earl White, were required to obtain approval from MSHA
before implementing any ventilation changes.
It is uncontroverted that no prior approval was obtained.

1970

On its face 30 C.F.R. § 75.316 does not require an operator
to comply with a ventilation plan nor does it require prior
approval before ventilation changes are made. However, the
Commission has determined that "once the plan is approved and
adopted, its provisions are enforceable as mandatory standards."
Jim Walter Resources. Inc. 9 FMSHRC 903, 907 (May 1987); see also
Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir~ 1976);
Carbon County Coal Co., 7 FMSHRC 1367, 1371 (September 1985);
Penn Allegh Coal Co., 3 FMSHRC 2767, 2771 (December 1981). In an
enforcement action before the Commission, the Secretary must
establish that the provision allegedly violated is part of the
approved and adopted plan and that the cited condition violated
the provision. Jim Walter, 9 FMSHRC at 907.
The pertinent portion of the ventilation plan is a letter
dated November 15, 1990 addressed to Charles W. McGlothlin then
Vice-President and General Manager of Wyoming Fuel Company. The
letter reads, in part, as follows:
RE:

G,olden Eagle Mine
ID No. 05-02820
Ventilation System and Methane
and Dust Control Plan

Dear Mr. McGlothlin:
The ventilation system and methane and dust control
plan, dated September 10, 1990, october 3, 1990 and
November 7, 1990, consisting of three cover letters, a
48-page plan, and mine map, is approved in accordance
with 30 CFR 75.316. The plan is subject to revision
at any time and shall be reviewed by the operator and
MSHA at least once every six months. Before any
changes are made in the approved ventilation system,
they shall be submitted to and approved by the
District Manager prior to implementation.
(Emphasis
added)
o

The following amendment to the previously approved
plan is also included in the approval:
The Slope and Shaft Sinking Plan Amendment
dated September 21, 1990.
The map approval applies specifically to the
provisions of 30 CFR Sections 75.316-1(a), 75.3162(!)(1), 75.330, 75.1200 and 75.1200-1. Evaluation of
escapeways will be accomplished by an on-site
inspection of the mine by an authorized representative
of the Secretary. The escapeways shall be the most
direct and practical route out of the mine and shall
comply with the criteria in 30 CFR 75.1704.1.
This plan supersedes the previously approved plan with
an approval date of May 10, 1989 and all incorporated
amendments, except as noted above. This approval,
also, supersedes the conditional approval dated
November 8, 1990.

1971

It is apparent that the underlined portion requires prior
approval from MSHA before implementing any changes in the
ventilation system.
It is further uncontroverted that White made changes in the
ventilation system without seeking prior approval.
These changes were substantiated and best illustrated by two
drawings made by witness Denning, prepared as ttbefore and after"
illustrations (see Exhibits M-7 and M-8). Basically White
changed a return aircourse in the No. 1 headgate to an intake
aircourse. As a result of the change there was no return aircourse in the headgate.
The Judge recognizes that White stated he was accustomed in
his previous work to making ventilation changes and then submitting such changes to MSHA for approval. However, although he was
only at the Golden Eagle Mine a short time he should have been
familiar with the ventilation plan requirements.
If the Commission accepts White's theory then the ventilation regulations would be meaningless.
The Secretary established a prima facie violation of the
ventilation plan because the prior notice requirement was a part
of the plan and White, Basin's Vice-President and General Manager, failed to obtain approval from MSHA before implementing such
changes.
WFC argues the plan approval "cover letter" cannot be considered part of the plan for a number of reasons.
WFC initially contends the letter addressed to Mr. McGlothlin is merely a 01 cover letter" and not part of the actual plan.
I disagree.
The letter itself identified the document as
the Golden Eagle Mine ventilation plan. An amendment is specifically included in the "cover letter", "Escapeways" are also incorporated: "they shall comply with the criteria in 30 C.F.Ro
7!5o1704ola 00 There appears to be no reason to conclude that "page
2 of 46" is not part of the ventilation plan for the Golden Eagle
Mine. However, I recognize that MSHA's use of a cover letter to
impose ventilation amendments on an operator has been criticized.

Basin further asserts that MSHA witnesses testified as to
three alternatives to trigger the prior approval requirement.
Some MSHA witnesses draw a distinction between "major" and
"minor" changes. (Tr. 176-178, 189-190}. Inspector Jordan
contended that prior approval was required for "all changes."
(Tr. 28, 45).

1972

I decline to support any argument that requires prior MSHA
approval only for "major", but not for minor changes.
Commission Judges have routinely ruled that any deviation
from the ventilation plan, even temporary or inadvertent, is a
violation of 75.316.
In Consolidation Coal Company, 3 FMSHRC 2207 (September
1981), Judge Melick affirmed a violation of§ 75.316, for the
failure by the operator to ventilate an entry with a line curtain. Although the evidence established that the curtain had
been in place 2 1/2 hours prior to the issuance of the citation,
but had been taken down for some unexplained reason, the judge
found that the absence of the curtain at the time the citation
was issued was a violation. See also: Windsor Power House Coal
Company, 2 FMSHRC 671 (March 1980~ommission review denied
April 21, 1980 (Judge Melick affirmed a violation of S 75.316
because of the operator's failure to maintain adequate ventilation at a working face as required by its ventilation plan); Coop
Mining Company, 5 FMSHRC 2004 (November 1993) (affirmed a violation of § 75.316, because of an operator's failure to install a
line curtain as required by its ventilation plan. Although the
judge considered the fact that the curtain may have been down fo~
only a short time due to possible rib sloughage, he ~ound that
such an unusual occurrence was no defense); Mid-Continent Coke
and Coal, 3 FMSHRC 2502 (November 1981) (a temporary halt in
mining to permit other activities does not interrupt ventilation
requirements) and U.S. Steel Mining Company, 12 FMSHRC 1390 (July
1990) (violation found where curtain was not required distance
from face).
Basin further claims that MSHA cannot unilaterally establish
plan provisions by adding requirements to transmittal letters
because plans are the subject of negotiation between MSHA and the
operator.
I agree that the approval and adoption process is bilateral
involving consultation, discussion and negotiation between the
parties mutually agreeing to ventilation plans suitable to specific conditions at particular mines. Jim Walter Resources Inc.
9 FMSHRC at 907. However, in the instant cases there is no evidence the parties ever engaged in any such negotiations.
In
short 0 evidence is necessary to support these bare allegations by
Basin.
Basin also contends it had no notice of the plan requirements because it could not locate the cover letter in its file
and it was not produced in discovery.
(Tr. 362-363, 405-406).
The prior notice requirement was contained in MSHA's letter
of November 15, 1990, addressed to Charles W. McGlothlin (Ex.

1973

M-1, page "2 of 46"}. A subsequent letter dated April 3, 1991,
states in part "This amendment will be incorporated into the
current ventilation plan originally approved on November 15, 1990
"
The subsequent letter indicates that the letter of November 15, 1990, was sent to WFC. Approvals of this type are transmitted in the regular course of business to the operator and
various MSHA offices.
(Tr. 130). In this situation Basin adopted the previous owner's plans.
(Tr. 131).
Basin further observes that the new ventilation regulations,
which were adopted after the events in this case, expressly
require prior approval. 2 As a result Basin argues the elementary rules of statutory construction compel a conclusion that the
regulation as it existed did not require prior approval by MSHA.
I agree that the regulation itself, 30 C.F.R. § 75.316, does
not require prior approval by MSHA. However, the plan itself
requires such prior approval. As a result the rules of statutory
construction are not controlling.
Finally, Basin argues that MSHA's position is undercut when
its other regulations provide for immediate changes especially
when methane reaches certain levels e.g., see 30 C.F.R.
§ 75.308; 309(a); 316-2(d).
Basin's arguments are rejected. MSHA may properly address
particular hazards (such as methane) with specific detailed regulations. Such particularized regulations do not prevent the
enforcement of ventilation plans.
SIGNIFICANT AND SUBSTANTIAL
A "significant and substantial" violation is described in
section l.04(d){1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." A
violation is properly designated significant and substantial "if,
based upon the particular facts surrounding the violation there

2

The new regulation, 30 C.F.R. S 75.370, provides as follows:
(c) No proposed ventilation plan shall be
implemented before it is approved by the
district manager.
Any intentional change
to the ventilation system that alters the
main air current or any split of the main
air current in a manner that could materially affect the safety and health of the
miners, or any change to the information
required in S 75.371 shall be submitted to
and approved by the district manager before
implementation.

1974

exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
(April 1981) .
In Mathies Coal Co. 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
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: (l) the underlying violation of a
mandatory safety standard, (2) a discrete safety
hazard--that is, a measure of danger to safety-contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.

In United states Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element of
the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." u.s. Steel Mining co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(1}, it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. u.s. steel Mining Company, Inc., 6
FMSHRC 1866, 1868 (August 1984); u.s. steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

MSHAus principal and most knowledgeable witnesses were
Messrso Jordan and Denning.
Mr. Jordan testified this citation was an "S&S" violation.
He did so because "anything that has the potential for serious
injury or bodily harm is automatically significant and substant:ialo 00
{Tr. 40). Mr. Jordan further stated it had the potential
00
•
o
o
and it is only a "guesstimate" of what can occur when it
[air reversal] is done in this manner." (Tr. 40). It is apparent that Mr. Jordan's definition of "S&S" conflicts with the
Commissionfs view.
Mr. Denning, MSHA's ventilation expert, testified that
reversing the air without approval could cause "unknown changes"
in the ventilation and cause methane to accumulate "in unknown
areas." {Tr. 141).

1975

However, Mr. Denning elaborated on this condition as
follows:
A.
It's apparent that the change caused the
ventilation pressures to be redistributed so that the
methane accumulates at the tailgate entries and not
only the change of the direction of air in the air
course, but the removal of the stoppings that were
cited in the imminent danger order at crosscuts 62 and
63.
(Tr. 142).

As noted above the Secretary's experts failed to testify
there was "a reasonable likelihood that the hazard contributed to
will result in an injury." In short, the third facet of the
Mathies formulation was not established.
However, it is necessary to consider imminent danger Order
No. 3244407. 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). In Rochester & Pittsburgh Coal
Co., 11 FMSHRC 2159 (November 1989) {"R&P"), the Commission
reviewed the precedent analyzing this definition and 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." 11 FMSHRC at 2163
(citations omitted). It 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 1 278 (4th Cir. 1974).
See also Wyoming Fuel Company, 14 FMSHRC 1296 (August 1992) ; Utah
Power & Light Co.v 13 FMSHRC 1617 (October 1991).
Imminent danger Order No. 3244407 was issued immediately
before Citation No. 3244408 and that became a final order of the
Commission. The order establishes the reasonable likelihood that
the methane concentration will result in an injury.
The S&S allegations as to Citation No. 3905711 should be
affirmed.
UNWARRANTABLE FAILURE

In Emery Mining Corp., 9 FMSHRC 1997, 2000-2004 (December
1987), and Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010
(December 1987), the Commission held that "unwarrantable failure
means aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of the Act."
This conclusion was based on the ordinary meaning of the term

1976

"unwarrantable failure," the purpose of unwarrantable failure
sanctions in the Mine Act, the Act's legislative history, and
judicial precedent. The Commission stated that while negligence
is conduct that is "inadvertent", "thoughtless," or "inattentive," conduct constituting an unwarrantable failure is conduct
that is "not justifiable" or "inexcusable." Emery, supra, 9
FMSHRC at 2001.
The Commission has held that there cannot be an unwarrantable failure resulting from a good faith, although mistaken
belief that its actions were in compliance with regulations.
Utah Power & Light Company 12 FMSHRC 965, 972 (May 1990), aff'd
951 F.2d 292 (lOth Cir, 1991}, Cyprus Tonopah Mining Corporation
15 FMSHRC 367, 375-377 (March 1993).
Mr. White did not believe that 30 C.F.R. § 75.316 required
that he obtain prior approval from MSHA before implementing
changes in the ventilation system. This belief, shared by
Thompson, was based on the language in the regulations and his
previous experience.
(Tr. 416-417).
I conclude this evidence is credible. Mr. White and his
crew changed the ventilation system on Sunday, June 23, 1991.
called Mr. Jordan the next day to advise him of the change.

He

Further, White felt he could have been cited for failing to
correct the problems in the ventilation system.
(For apparent
problems in the system, see Exhibit BR-1). Several recent
decisions find that insufficient air velocity violated the
operator's ventilation plan support White's concerns in this
regard. Bethenergy Mines, Inc., 15 FMSHRC 1200 June 23, 1993,
(Weisberger, ALJ); Energy West Mining Company, 15 FMSHRC 1185
June 21 0 1993 (Lasher 0 ALJ).
The Secretary asserts the unwarrantable failure allegations
should be sustained because White ignored statements by his two
deputies (Salazar and Huey) that MSHA should be notified.
Further, witness Gossard advised company representatives of the
necessity of prior notification as it related to an explosion in
the Golden Eagle Mine in 1991.
It is true that Salazar and Huey told White 'prior notification was necessary. But at this point White sent Perko (Safety
Department) for a copy of Part 75. White read Part 75 and stated
(according to both Salazar and Huey) 11 Show me in the book where
it says I have to notify MSHA of this change" (Salazar at 64;
Huey at 81). Huey also confirmed that White read Part 316
[30 C.F.R. S 75.316]. He indicated there wasn't anything there
saying he couldn't make the ventilation changes (Huey at 81).
The evidence also shows that Ronald J. Gossard was assigned
to head up an MSHA team to investigate the MSHA Golden Eagle mine

1977

explosion that occurred in February 1991. At the close out
conference, ventilation changes were discussed.
I give Mr. Gossard's testimony zero weight because Basin had
not yet acquired the Golden Eagle Mine. Mr. Gossard's last trip
to the mine was in March 1991 and he had no knowledge of the
practices followed by Basin (Tr. 203). White took over his current position on June 1, 1991 when Entech (Basin) acquired the
Golden Eagle Mine.
(Tr. 206).
There was no unwarrantable failure because the operator
through its manager had a good faith honest belief that he was
complying with the regulations.
The allegations of unwarrantable failure should be stricken.
CITATION NO. 3244408
DISCUSSION AND FURTHER FINDINGS

At issue here, separate from the dispute involving Mr.
White's changes in the ventil'ation ··system, is whether the methane
levels that were detected by Inspectors Jordan and Phelps, when
they went underground on the afternoon of Tuesday, June 25 constitute a violation.
It is uncontroverted that Inspector Jordan took his readings
four feet outby the stoppings at Crosscut 62 and 63. (Tr. 47).
The methane averaged 4 to 5 percent and above.
(Tr. 35). The
measurement location was supported by the test results which also
reflect that they were taken four feet from the stoppings.
(Ex.
M-5) • Although Jordan could not tell how far he was from the
entry, White testified the stoppings are 60 feet from the
entries.
(Tr. 350).
Basin asserts that the mixing point where the measurement
should take place is at the intersection of the bleeder taps and
the return air entries, not the stoppings in the bleeder taps.
As White explained, methane levels in the bleeder taps are
naturally going to be higher as the methane coming off the gob is
diluted on its way to the return air entries in the bleeder
system.
(Tr. 350). Air is traveling up the entry and the
bleeder taps are at 90 degrees. As the methane comes off the
gob, the air mixes with it and dilutes it below 2 percent. {Tr.
350Q 351). There is no hazard in the reduction at that point and
all the coal mines in the world work in that fashion.
(Tr. 351).

1978

The ventilation plan provides as follows:
The methane content in the air in active workings
(except those active work areas specifically addressed
elsewhere in the plan or in 30 CFR 75) shall be less
th~n 1.0 volume per centum.
If at any time the air in
any of these active workings contains 1.0 volume per
centum or more of methane, changes or adjustments
shall be made at o~ce in the ventilation in the mine
so that air shall contain less than 1.0 volume per
centum of methane.
(Ex. M-1, page "14 of 46").
The methane content in any return aircourse, other
than an aircourse returning the split of air from a
working section, shall not exceed 2.0 volume per
centum.
(Ex. M-1, page "15 of 46").

The Secretary's regulations 30 C.F.R. § 75.309-2 Location of
Methane Test provides as follows:
The methane content in a split of air
returning from any working section shall
be measured at sueh point or points where
methane may be present in the air current
in such split between the last working
place of the working section ventilated by
the split and the junction of such split
with another air split or the location at
which such split is used to ventilate
seals or abandoned areas. Tests to
determine the methane content of such
split shall be made at a point not less
than 12 inches from the roof or ribs."
Similarly, 30 C.F.R. S 75.316-2,
Criteria for approval of ventilation
system and methane and dust control plan,
states in subpart (i), "When the return
aircourses from all or part of the bleeder
entries of a gob area and air other than
that used to ventilate the gob area is
passing through the return aircourses, the
bleeder connectors between the return
aircourses and the gob shall be considered
as bleeder entries and the concentration
of methane should not exceed 2.0 volume
per centum at the intersection of the
bleeder connectors and the return
aircourses.

The Secretary has several regulations dealing with location
of methane tests.
However, the Judge believes the above provisions should be
read in conjunction with 30 C.F.R. § 75.310-3 which provides as
follows:

1979

S 75.310-3

Location of methane tests.

The methane content in a split of air returning from
any active workings of a mine shall be measured at
such point or points where methane may be present in
the air current in such split between the last working
place ventilated by the split and the junction of such
split with another air split or at a point where such
split is used to ventilate seals or abandoned areas.
Tests to determine the methane content of such split
shall be made at a point not less than l2 inches from
the roof or ribs.

Stripped of its surplusage, 30 C.F.R. S 75.310-3 reads:
"The methane content shall be measured
at a point where such
split is used to ventilate seals."
The cited section indicates Inspector Jordan measured the
methane at the proper location and manner.
Basin's reliance on Island Creek Coal company 15 FMSHRC 339
(March 1993) is misplaced. In,Island Creek Coal Company the
Commission affirmed the Judge's order vacating the citation because there was no evidence that an explosive concentration of
methane was entering the mine. In the instant case a 4 to 5
percent concentration of methane existed outby the stoppings.
Citation No. 3244408 should be affirmed.
SIGNIFICANT AND SUBSTANTIAL
The S&S factors as established by the case law are set forth
above.
The evidence shows that the methane was found while the mine
was deenergizedu no workers were present and it occurred in a
non-working area of the mine. There was no evidence of any
ignition sources.
In view of these facts the S&S allegations should be
stricken.
UNWARRANTABLE FAILURE

The case law as to unwarrantable failure is set forth in
connection with the prior citation.
The evidence does not support unwarrantable failure and said
allegations are stricken.

1980

DOCKET NO. WEST 93-186
SECRETARY V. EARL WHITE

In this case the Secretary seeks a civil penalty against
Earl White, Basin Manager and Vice-President, under Section
110(c) of the Act.
Section 110(c) provides:
(c) 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 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).
·

In Bethenergy Mines, Inc. et al., 14 FMSHRC 1232 the Commission restated its views that a corporate agent "who knowingly
authorized, ordered, or carried out •.• [a] violation" committed
by a corporate operator may be subject to individual liability
under section llO(c) of the Mine Act. The proper legal inquiry
for purposes of determining liability under section 110(c) of the
Act is whether the corporate agent "knew or had reason to know"
of a violative condition. Secretary v. Roy Glenn, 6 FMSHRC 1583,
1586 (July 1984), citing Kenny Richardson, 3 FMSHRC 8, 16 (January 1981). In Kenny Richardson, the Commission stated:
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 condition, he has acted
knowingly and in a manner contrary to the remedial
nature of the statute.

3 FMSHRC at 16.
In order to establish section 110(c) liability,
the Secretary must prove only that the individuals knowingly
acted not that the individuals knowingly violated the law. Cf.g
~~ United States v. International Minerals & Chemical Corp.,
402 U.S. 558 9 563 (1971).

Further, the Commission reaffirmed its previous holding that
a 01 knowing" violation under section 110(c) involves aggravated
conduct, not ordinary negligence, Bethenergy, 14 FMSHRC at 1245.
The evidence as to White has been previously reviewed.
conduct was not "aggravated."
Accordingly the llO{c) is DISMISSED.

1931

His

CIVIL PENALTIES
The statutory criteria to assess civil penalties is
contained in section 110(i) of the Act.
The proposed assessment indicates the Golden Eagle Mine
produced 591,944 tons.
Further, the penalties assessed should not affect the
operator's ability to continue in business.
As to its history, the operator, Basin Resources, was
assessed eight violations for the period from June 1, 1991 to
June 24, 1991.
(Ex. M-6).
The operator was negligent as to both citations. The
company should have known prior MSHA approval was required to
change ventilation. It should also have ant~cipated the methane
concentrations would accumulate in the mine.
The gravity of the violations should be considered as high.
The change in the ventilation caused the methane to locate in a
different location.
The operator demonstrated good faith in promptly abating the
violative condition.
The penalties set forth in this order are appropriate.
For the reasons herein I enter the following:
ORDER
1()

WEST

92-384~

Citation No. 3905711, as modified, is affirmed and a
civil penalty of $300 is assessed.
2.

WEST 93-340:
Citation No. 3244408 0 as modified, is affirmed and a
civil penalty of $400 is assessed.

3.

WEST 93-196:
The llO(c) case is dismissed.

Law Judge

1982

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U~S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
Colorado 80294 (Certified Mail)
Charles w. Newcom, Esq., SHERMAN & HOWARD, 3000 First Interstate
Tower North, 633 17th street, Denver, co 80202 (Certified Mail)

sh

1983

PEDERAL KINE SAFETY AND HEALTH REVIEW COKKISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

SEP 2 71993
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 92-607-M
A.C. No. 24-01813-05508

v.

Portable Crusher #2

KONITZ CONTRACTING, INC.,
Respondent
DECISION

Appearances:

Susan J. Eckert, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner;
William E. Berger, Esq., Lewistown, Montana,
for Respondent.

Before:

Judge cetti

The Secretary of Labor (Secretary) in this civil penalty
proceeding charges the Respondent, Kanitz Contracting Inc.
(Konitz)u the owner and operator of two portable crushers, with
the violation of ten (10) mandatory safety regulations promulgated under the Federal Mine Safety Act of 1977, 30 U.S.Ce § 801 et
sego {the Act)
o

Respondent filed a timely answer contesting the existence of
eight (8} of the alleged violations. Pursuant to notice a hearing was held before this Judge at Livingston, Montana on July 20 0
1993o Oral and documentary evidence was introduced by the
partiesu oral closing arguments were presented and filing of
briefs were waived by both parties. This matter was submitted
for decision with the filing of the transcript of the hearing on
July 28 0 1993o
STIPULATIONS

At the hearing the parties entered into the record stipulations as follows:
1. Kanitz Contracting, Inc. is engaged in mining and selling of sand and gravel in the United states, and its mining operations affect interstate commerce.

1984

2. Konitz Contracting, Inc. is the owner and operator of
the Portable Crusher #2, MSHA I.D. No. 24-01813.
3. Konitz Contracting, Inc. is subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
SS 801 et ~ ("the Act").
4.
matter.

The Administrative Law Judge has jurisdiction in this

5. The subject citations were properly served by a duly
authorized representative of the Secretary upon an agent of Respondent on the dates and places stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
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 therein.
7. The proposed penalties will not affect Respondent's
ability to continue in business.
B.
The operator demonstrated good faith in timely abating
the violations.
9. Konitz Contracting, Inc. is a small mine operator with
5657 hours worked in 1991.
10. Respondent's history of previous violations is average
for an operator of its size.
lo
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 citations.

Citation No. 3631657
This citation charges Konitz with the violation of 30 C.F.R.
§ 56.18014 which is a mandatory safety standard requiring the

operator to make advance arrangements for emergency medical
assistance and emergency transportation for injured persons.
cited safety regulation reads as follows:
30 C.F.R. § 56.18014
Arrangements shall be made in advance for
obtaining emergency medical assistance and
transportation for injured persons.
{Emphasis added).

1985

The

The narrative allegation of Citation ~o. 3631657 reads as
follows:
Advance arrangements were not made to
assure that emergency medical assistance and
transportation would be provided at the mine
site in the event of an injury of an
employee.
Ronald S. Goldade, a federal Mine Safety and Health
Inspector, working out of the Helena, Montana MSHA field office
testified substantially as follows:
The field office in Helena makes inspections throughout the
entire state of Montana. Approximately 70 to 80 percent of his
inspection duties consist of inspecting portable rock crushers
operating in Montana. Portable crushers are very mobile. Parts
of the conveyor systems .are on wheels or can be picked up and put
on flatbed semi-trailers and transported to different locations
in a minimal amount of time. .. Often. people in the area are
unaware of the presence of a portable crusher operating in their
area. Typically most portable crushing units stay in one place
in remote areas for only a week or two.
Under the provision of the cited safety standard it is
expected that an operator of a portable crusher located in a
remote area will have his foreman or whoever's in charge, prior
to start up, contact the nearest town with ambulance service to
make sure that the sheriff's department or whoever's responsible
for the emergency medical assistance in the area knows the
location of the site of the crusher operation.
The inspector stated that a lot of these small towns in
Montana don't have full staff ambulance service and many are
dispatched .through the sheriff's department. By advance contact
the operator is assured of learning the procedure and the method
of communication needed to obtain emergency medical service and
transportation when it is needed.
Turning from the general to the specifics in this case~
Inspector Goldade testified he was instructed by his field office
supervisor in April of 1992 to travel to Red Lodge, Montana area
and make a regular inspection of the crushing Plant Number 2
which has a mine I.D. No. 24-01813.
The inspector drove to Red Lodge, a small town with a
population of 2,000 located in the southwest corner of Montana,
approximately 50 miles south of Billings which is the largest
nearby city. ·
The inspector located Portable crusher No. 2 about 7 miles
from Red Lodge. The crusher was set up in the middle of a field

1986

on a private ranch about 1/2 to one mile off a county road. On
arriving at the site the inspector made a regular inspection. He
found a number of violations and based on his inspection issued
the 10 citations involved in this docket.
Inspector Goldade talked to the foreman, Ken Bowser, who was
present and in charge of the operation at the site. It is undisputed that Ken Bowser had been the operator's foreman in charge
of crusher operations for the past 14 years. Foreman Bowser told
the inspector that no advance arrangements had been made for
obtaining emergency medical assistance and transportation at the
mine site in the event of an injury requiring such assistance.
Mr. Torn Kanitz, called by Respondent's counsel, testified
that he was the owner and president of Kanitz Contracting, Inc.
He has been in the business of operating portable rock crushers
since he bought Portable Rock crushers No. 1 and No. 2 in 1979.
Mr. Kanitz stated that he is aware of the cited regulation 30
C.F.R. § 56.18014 and believed he had complied with it by posting
on the bulletin board inside the crusher van the phone number of
the sheriff's department and all other emergency phone numbers
required by 30 C.F.R. § 56. 18012.
(It is undisputed that Kanitz
was not cited for this latter safety standard.)
Kanitz stated that the portable crusher is moved frequently
over long distances in Montana, most of the time in rural,
sparsely populated areas. At the time of the inspection the
crusher was set up in a field on a private ranch. The crusher
was set up and operating about half a mile off Highway 99 and
could be seen from the highway. In the event a need for
emergency medical service arose, it was Kanitz's policy to have
the foreman go to the closest farmhouse with a phone and dial the
sheriff's office or 911. Konitz stated he has never done more
than this the past 14 years before this citation was issued and
had never been previously cited for violation of the safety
standard in question. Evidence was presented that the closest
phone to the crusher site was at a farmhouse across the road
91
approximately a mile or two at the most 11 from the crusher site.
Konitz stated he assumed the farmhouse was not locked but did not
know whether it was locked or not or whether anyone would be at
the farmhouse in the event emergency use of the phone was needed.
Konitz stated that since the issuance of the citation he has
contacted ambulance service and hospitals with unimpressive
results. He stated sometimes they'll listen and "take the
information down 11 and "sometimes they'll not show much.interest."
He stated "they advertise throughout the state (Montana) that the
911 and .the sheriff's office 11 is the correct way to.obtain
emergency assistance in the rural areas of Montana.
Inspector Goldade stated he has no problem with Mr. Kanitz
calling the sheriff's office as his 11 first avenue of contact"

1987

before operating the crusher in a remote area, giving the
location of the crusher site and determining in advance of
starting operations at the new site the procedures needed to
obtain the emergency medical services specified in the cited
safety standard.
DISCUSSION AND CONCLUSION
It is Respondent's position that he was complying with the
cited safety standard by posting on the bulletin board that is
kept in the crusher van the appropriate sheriff's department and
other emergency phone numbers. This may well have satisfied the
requirements of C.F.R. S 56.18012 but not the clear mandate of
the cited standard 30 C.F.R. S 56.18014 that arrangements must be
"made in advance" for obtaining emergency medical assistance and
transportation for an injured person. A crusher operator must
comply with both safety standards. Compliance with one safety
standard is not a defense to the violation of the other safety
standard. A reasonably prudent person would have recognized this
in view of the clear, plain language of both of these safety
standards.
The safety standardcited clearly requires that the
arrangements for emergency medical assistance and transportation
for an injured person must be 11 made in advance" of starting
operations at a new mine site.
The evidence presented establishes a violation of the clear
mandate of the 30 C.F.R. S 56.18014. The citation is affirmed.
PENALTY
Respondent is a small mine operator.
I concur in the
inspector's evaluation of the operator's negligence as moderate
since the operator should have been aware of the requirements of
the cited safety standard. on consideration of all the statutory
criteria in section 110(i) of the Act I conclude that the appropriate penalty in this case for Respondent's failure to make the
required arrangements in advance, is the $50 penalty proposed by
MSHA.
DISPOSITION OF THE REMAINING CITATIONS
On the record the parties at the hearing advised that they
had reached an amicable settlement of the remaining nine citations in this docket and jointly offered for approval an agreement covering these citations.
Under the proposal offered for approval the Respondent
agrees to pay in full the MSHA proposed penalties of $50 for each
of the violations alleged in Citation Nos. 3631649, 3631652,
3631654, 3631655 and 3631656 totaling $250. At least two of the
$50 penalties in the sum of $100 have already been paid.

1988

In addition, the Petitioner moves for leave to vacate four
of the citations on the grounds of insufficient evidence. These
citations are Citation Nos. 3631648, 3631650, 3631651 and
3631653.
I have considered the evidence, the representations and the
stipulations received at the hearing and I conclude that the
proffered settlement of the remaining nine citations referenced
above is appropriate under the criteria set forth in section
110(i) of the Act and it is approved.
ORDER
1. Citation Nos. 3631648, 3631650, 3631651 and 3631653 are
VACATED.
2. Citation Nos. 3631649, 3631652, 3631654, 3631655,
3631656 and 3631657 are AFFIRMED and a civil penalty of $50 is
assessed for each of these violations.
3. RESPONDENT SHALL PAY a civil penalty in the sum of $300
to the Secretary of Labor within 40 days of this decision and
order with full credit for all payments that have been previously
made.

st F. Cetti
inistrative Law Judge

Distribution:
Susan J. Eckert, Esq., Office of the Solicitor, u.s. Department
of Labor~ 1585 Federal Building, 1961 Stout street 8 Denver, co
80294 (Certified Mail)
William E. Berger, Esq., P.O. Box 506, Lewistown, MT 59457
(Certified Mail)

sh

1989

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

StP 2 91993
MELVIN.FULTZ,

v.

DISCRIMINATION PROCEEDING

Complainant
:

HARRIMAN COAL CORPORATION,
Respondent

.

Docket No. PENN 93-198-D
MSHA Case No. WILK CD 93-03

DECISION
Appearances:

Melvin Fultz, 30 Spring Street, Tremont,
Pcnncylva~ia,

pro se;

Mark Semanchik, Esq., Lipkin, Marshall,
Boharad and Thornburg, Pottsville,·
Pennsylvania, .for Harriman Coal Corporation
Before:

Judge Melick

At hearings, the Complainant herein, Melvin Fultz, failed
to present any evidence that he had any employment or other
relationship to the Respondent, Harriman Coal Corporation, or
that such corporation caused any damages cognizable under
Section 105{c)(1) of the Federal Mine Safety and Health Act
of 1977, the "Act. '' 1 . In a\lelition, while Mr. Fultz testified
section 105(c)(1) of the Act provides as follows~
person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant
for employment in any coal or other mine subject to this Act
because such miner 0 representative of miners or applicant for
employment has filed or made a complaint under or related to
this Act 0 including a complaint notifying the operator or the
operator 1 s agent, or the representative of the miners at the
coal or other mine of an alleged danger or safety or health
violation in a coal or other mine, or because such miner,
representative of miners or applicant for employment is the
subject of medical evaluations and potential transfer under
a standard published pursuant to section 101 or because such
miner, representative of miners or applicant for employment
has instituted or caused to be instituted any proceeding under
or related to this Act or has testified or is about to testify
in any such proceeding, or because of the exercise by such
miner, representative of miners or applicant for employment
on behalf of himself or others of any statutory right afforded
by the Act."
e'No

1990

at hearing that the Rausche Creek Contracting Company (though
not served as a party to this proceeding) failed to compensate
him for time lost due to injuries sustained while working for
said company he has not alleged any precipitating activity
protected under Section 105(c)(1) of the Act. Accordingly,
for the above reasons, this case is DISMISSED.
ORDER

Discrimination Proceeding Docket No. PENN 9 -198-D is
hereby DISMISSED.

G'ry Mel~~

Administ ... \five
Distribution:
Melvin Fultz, 30 Spring Street, Tremont, PA 17981 (Certified
Mail)
Mark Semanchik, Esq., Lipkin, Marshall, Boharad and Thornburg,
One Norwegian Plaza, P.O. Drawer K, Pottsville, PA 17901
(Certified Mail)
/lh

1991

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

SEP 2 91993
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), ON
BEHALF OF DONALD B. CARSON,
Complainant
v.

Docket No. SE 93-109-D
BARB CD 92-38
No. 4 Mine

JIM WALTER RESOURCES, INC.,
Respondent
DECISION
Appearances:

Before:

William Lawson, Esq., Office of the Solicitor,
u. s. Department of Labor, Birmingham, Alabama, for
the Secretary;
R. Stanley Morrow, Jim Walter Resources, Inc.,
Brookwood 1 Alabama, for Respondent.

Judge Maurer
STATEMENT OF THE CASE

The Secretary brings this case on behalf of Donald B. Carson
and claims that Carson was unlawfully discriminated against in
violation of section 105(c) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et seg. (the Act), in that he was at
least impliedly threatened with the loss of his job for engaging
in protected safety-related activity.
Pursuant to notice, a hearing was held on the merits of this
case on May 25, 1993, in Hoover, Alabama. Subsequently, the
parties have both filed posthearing arguments which I have
considered in the course of my adjudication of this matter. I
make the following decision.
FINDINGS OF FACT
1. At all times relevant to this complaint, Carson was
employed by respondent at their No. 4 Mine; he has been employed
at the respondent's No. 4 Mine for approximately 17 years and has
served on both the safety committee and grievance committee
during that period of time, although he no longer does so.

1992

2. on June 3, 1992, carson was assigned to work in a
relatively remote section of the mine (Southwest bleeders)
repairing seals. He spent the entire shift in that area
rebuilding a seal, and at times experienced some lightheadedness
and nausea of unknown etiology. Prior to leaving this area at
the end of his shift, he walked down to where the next sealed
area was to be built, thinking that the next shift would probably
finish-up the seal he had been working on and start on the next
one. In that area, he observed adverse roof conditions in that
there were roof channels or mats broken and the roof was sagging.
Upon leaving the mine, Carson went to the safety office and
informed David Millwood and Ronnie Smith, who are UMWA Safety
committeemen, of the unsafe roof conditions he had found in the
mine.
3. At the same time as Carson was relating his tale about
the adverse roof conditions to·the safety committeemen, MSHA Coal
Mine Inspector Bill Deason was also in the mine's safety office.
He overheard the conversation and became concerned about miners
being in the area, not only because of the roof conditions he was.
hearing about, but because he knew that he had previously issued
a citation in that area for low oxygen. 1
Deason queried Carson
about who, if anyone, had preshifted the area and about whether
he had had a co monitor or a methane detector with him while he
was working in that area. As far as Carson knew, no one had
preshifted the area and he had none of the aforementioned
equipment with him. After inspecting the area himself and
discussing the situation with management, Inspector Deason issued
two section 104(d) (2) orders; one for failure to conduct a
preshift examination and a second for failure to comply with the
mine 1 s ventilation plan.
4o
Carson returned to work the next night and found out
that the two aforementioned orders had been issued by Inspector
Deason after he left the previous morning. Towards the end of
his shift, he was approached by Bob O'Malley, the owlshift mine
foreman, who purportedly told him that what he did was 11 low-down
and dirty" and that he no longer respected him. Carson then
asked O'Malley what he was talking about and O'Malley replied
01
you know what I'm talking about, its about the seals." Carson

Inspector Deason issued section 104(a) Citation
No. 3016975 on May 7, 1992, for a purported violation of
30 C.F.R. S 75.301. Subsequently, it was determined that no
violation existed and the citation was vacated by MSHA.

1993

then attempted, without success, to explain to O'Malley that he
hadn't had anything to do with the inspector issuing the (d) (2)
orders. 2
5. Upon returning to the surface after finishing his shift,
Carson went straight away to the safety office to see the
UMWA Safety Committeemen and Inspector Deason about what he
perceived to be intimidation and/or harassment concerning the
(d) (2) orders Inspector Deason had issued. It was about this
time that Mr. Oliver, the general mine foreman, told Carson that
Mr. Cooley, the mine manager, wanted to talk to him. Carson in
turn asked his UMWA Safety Committeeman, Millwood, to accompany
him into the meeting. Carson testified that because of his
earlier confrontation ";:ith 0 'M~lley, he was concerned about being
threatened and wanted a union representative with him when he met
with the mine manager.
6. Carson and Millwood met with General Mine Foreman
Oliver, Mine Manager Cooley, and Fred Kozel, the deputy mine
manager, in Mr. Oliver's office. There is a dispute about
precisely what was said at that meeting, but the clear
preponderance of the evidence made the impression on me that the
mine management was upset over receiving the two (d) (2) orders
from Deason and they were operating under the assumption that
Carson was somehow responsible for their issuance. The meeting
was described by Millwooa as a "tongue lashing, at the least."
Millwood further opined that it was a "heated conversation" in a
"threatening" atmosphere. Carson also credibly testified in my
opinion, that he personally felt threatened. I find as a fact
that there was an implied threat made by Cooley against carson's
future employmentv or at the least, a reasonable basis for Carson
to believe there had beeno
7. In April of 1992, 2 months before the incident at bar
took place, there was a reduction in the work force at this mine.
At that time, carson was "rolled back" from a more desirable

2

It is important to note that the only evidence of this
entire conversation comes from the testimony of Mr. carson. It
is nowhere refuted in the record and is therefore uncontroverted.
That does not mean, however, that it is undisputed. Respondent
does dispute it, but unfortunately, Mr. O'Malley, the foreman who
is credited with making these remarks, was killed in a boating
accident and was therefore unavailable to testify in this
proceeding.
·

1994

outside position to a less desirable one inside the mine. At the
same time, his wife was laid off. Both were unhappy with the
company as a result.
DISCUSSION, FURTHER FINDINGS AND CONCLUSIONS

Respondent ascribes "revenge" as Carson's motive for filing
this discrimination complaint. This because of the alleged
mistreatment that he and his wife feel they suffered at the hands
of the company as more fully set out in Finding of Fact No. 7,
supra.
Be that as it may, the general principles governing analysis
of discriminati~~ c=ses u~der the Mine Act are well settled.
In
order to establish a prima facie case of discrimination under
section 105(c) of the Act, a complaining miner bears the burden
of production and proof in establishing that (1) he engaged in
protected activity and (2) the adverse action complained of was
motivated in any part by that protected activity. Secretary on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 27972800 (October 1980), rev'd on other grounds sub nom.
Consolidation Coal co. v. Marshall, 663 F.2d 1211 (3rd Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 817-18 (April 1981). The operator may rebut the
prima facie case by showing either that no protected activity
occurred or that the aciverse act:ion was in no part motivated by
protected activity. If an operator cannot rebut the prima facie
case in this manner, it nevertheless may defend affirmatively by
proving that it also was motivated by the miner's unprotected
activity and would have taken the adverse action in any event for
the unprotected activity alone. Pasula, supra; Robinette, supra.
See also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642
(4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d
954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 19596 (6th Cir. 1983) (specifically approving the Commission's
Pasula-Robinette test). Cf. NLRB v. Transportation Management
Corp., 462 U.S. 393q 397-413 (1983) (approving nearly identical
test under National Labor Relations Act).
It is undisputed that Carson did engage in protected
activity when he made the safety-related complaint or report of
unsafe conditions to his safety committeemen and unwittingly, to
the MSHA Inspector who overheard the conversation. See Findings
of Fact Nos. 2 and 3, supra.
Therefore, the only remaining issue in complainant's prima
facie submission is adverse action. That is, did mine management
threaten andjor intimidate carson as a result of his engaging in
the aforesaid protected activity. And if they did, does a verbal

1995

threat, or what in this case is more properly denominated an
implied threat, constitute 11 adverse action" within the meaning of
the Act.
I find generally credible that testimony of carson and
Millwood that the meeting described in Finding of Fact No. 6,
supra, emphasized management's distress over the issuance of the
two (d) (2) orders, the cost that would be attributable to them
and the assignment of blame for their issuance squarely onto
Carson. It was also clearly intimated at that meeting, if not
stated outright, that it was just exactly this type of activity
that could result in further layoffs or even a shutdown of the
mine. In my mind, this is an implied threat to his job, designed
to have a chilling effect en not only Carson, but on anyone else
who knew of the situation, and management's quick response.
Respondent's attempt to explain this meeting away by their
concern over Carson not coming to mine management first to report
the unsafe conditions he found or their hunger for more knowledge
about those conditions is not well taken and is rejected. There
is plenty of testimony in this record that Carson's chosen
procedure to notify his UMWA Safety Committeeman of the unsafe
conditions he found is normal and routine in this mine.
Furthermore, by the time of the meeting, management knew a lot
more about the "safety violations" described in the two orders
than carson did. It must be remembered that carson did not write
the (d) (2} orders; Inspector Deason did. carson was not even on
the premises by the time Deason got around to inspecting the area
and issuing the two orders. Also, Carson did not intentionally
report the condition to the inspector prior to first notifying
the company. As I have stated earlier, the usual procedure for
notifying the company is to inform the safety committeeman who in
turn notifies the appropriate company management and/or safety
personnel.
Accordingly, to the extent that respondent argues that the
adverse action complained of herein was not motivated in any part
by the complainant's protected activity; that argument is
rejected.
I also believe that the implied threat to his job is
Qiadverse action" within the meaning of the Act in this instance.
The threat itself is adverse action. There is no need to wait
until the threat is carried out.

1996

The Commission has previously stated in Moses v. Whitley
Development Corp., 4 FMSHRC 1475, 1479 (August 1982) that:
"[C]oercive interrogation and harassment over the exercise of
protected rights is prohibited by section 105(c) (1) of the Mine
Act." Section 105(c) (1) states that "no person shall discharge
or in any manner discriminate against. • • or otherwise interfere
with the exercise of the statutory right of any miner." (Emphasis
added).
In making these broad statements, the Commission was guided
by the legislative history of the Mine Act which referred to "the
more subtle forms of interference, such as promises of benefit or
threats of reprisal. Moses, supra, at 1478, citing Legislative
History at 624.
(Erc.phasis added) . The Commission observed that
a "natural result" of such subtle forms of interference "may be
to instill in the minds of employees fear of reprisal or
discrimination." Moses, supra,
1478.

at

An illustrative ALJ decision which is clearly on point is
Denu v. Amax Coal Company, 11 FMSHRC 317 (March 1989) (ALJ).
In
that case, a supervisor repeatedly asked a miner if he knew the
consequences of his actions and told him that those consequences
included discharge. Although the miner was later told at that
same meeting that he would receive no disciplinary action, Judge
Melick nonetheless concluded that the questioning itself
constituted unlawful interference. The Judge stated in the
conclusion to his decision that:
I find however that threats of disciplinary action and
discharge directed to a miner exercising a protected
right clearly constitute unlawful interference under
section 105(c) (1}, whether or not those threats are
later carried out. Such threats place the miner under
a cloud of fear of losing his job. In addition, while
under such threats, a miner would be even less likely
to exercise his protected rights when future situations
might clearly warrant such an exercise.
Denu v. Amax Coal Company, 11 FMSHRC 317, 322 (March 1989)

(ALJ).

I concur that this type of behavior engaged in by highranking management personnel in a coercive, hostile atmosphere is
a violation of the Mine Act whose primary purpose can only be to
cause miners to refrain from asserting their rights under the
Mine Act.
It unquestionably has a chilling effect on the miners.
Even though Carson was not discharged, suspended, or
demoted, nor did he suffer any pecuniary loss as a result of
engaging in protected activity in this instance, he nevertheless

1997

did undergo discrimination, within the meaning of the Mine Act.
Accordingly, I find and conclude that the evidence supports a
finding that respondent unlawfully retaliated against carson for
engaging in protected safety-related activity in violation of
section 105(c) of the Mine Act.
I further conclude and find that mine management knew or
should have known that they were in serious violation of the Mine
Act at the time they engaged in the June 5, 1992, meeting with
Carson. And considering all the circumstances in this case, I
find a penalty of $1000 to be appropriate for the violation of
the Mine Act found herein.
ORDER

THEREFORE, IT IS ORDERED:
1. Respondent shall post a copy of this Decision on a
bulletin board at the subject mine which is available to all
employees, and it shall remain there for a period of at least
60 days.
2. Respondent shall pay to the Department of Labor a civil
penalty of $1000 within 30 days of the date of this Decision.
This Decision constitutes my final disposition of this
proceeding.

Law Judge
Distribution:
William Lawson, Esq. 9 Office of the Solicitor, u. s. Department
of Laboru 2015 Second Avenue North, Suite 201 6 Birmingham, AL
35203 (Certified Mail)
Ro Stanley Morrow, Esq. 9 Jim Walter Resources, Inc.,
Po Oo Box 133, Brookwood, AL 35444 (Certified Mail)

Mr. Donald B. carson, 7166 Ridge Road, Bessemer, AL 35203
(Certified Mail)

dcp

1998

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

~tP ~ 81993
BARRETT PAVING MATERIALS,
INCORPORATED,
Contestant

'

.. CONTEST PROCEEDINGS

Docket No. YORK 92-10-RM
Citation No. 3866158; 9/17/91

v.

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

Docket No. YORK 92-11-RM
Citation No. 3866159; 9/17/91
Docket No. YORK 92-12-RM
Citation No. '3866160; 9/17/91
: . Docket No. YORK 92-13-RM
Citation No. 3866161; 9/17/91
Docket No. YORK 92-14-RM
Citation No. 3866162; 9/17/91
Docket No. YORK 92-15-RM
Citation No. 3866163; 9/17/91
Docket No. YORK 92-16-RM
Citation No. 3866164; 9/17/91
Docket No. YORK 92-17-RM
Citation No. 3866165; 9/17/91
Docket No. YORK 92~18-RM
Citation No~ 38661~6; 9/17/91

. Docket
No. YORK 92-19-RM
Citation
3866167: 9/17/91
4

No~

Docket No. YORK 92-20-RM
Citation No. 3866168; 9/17/91
Docket No. YORK 92-21-RM
citation No. 3866169; 9/17/91
Docket No. YORK 92-22-RM
Citation No. 3866170; 9/17/91
Docket No. YORK 92-23-RM
Citation No. 3866171; 9/17/91

1999

Docket No. YORK 92-24-RM
Citation No. 3866172; 9/17/91
Docket No. YORK 92-25-RM
citation No. 3866173; 9/17/91
Docket No. YORK 92-26-RM
Citation No. 3866174; 9/17/91
:

Docket No. YORK 92-27-RM
Citation No. 3866175: 9/17/91
Docket No. YORK 92-28-RM
Citation No. 3866176; 9/17/91
Docket No. YORK 92-29-RM
Citation No. 3866177; 9/18/91

No. YORK 92-30-RM
..• Docket
Citation No. 3866178; 9/18/91
Docket No. YORK 92-31-RM
Citation No. 3866179; 9/18/91
:

Docket No. YORK 92-32-RM
Citation No. 3866180; 9/18/91
Docket No. YORK 92-33-RM
Citation No. 3867541; 9/19/91
:
SECRETARY OF LABORu
MINE SAFETY AND HEALTH
ADMINISTRATIONu (MSHA)u
Petitioner

v.

Docket No. YORK 92-34-RM
Citation No. 3867542; 9/19/91
CIVIL PENALTY PROCEEDING

:

Docket No. YORK 92-119-M
A.C. No. 30-02869-05509
Jamesville Quarry

BARRETT PAVING MATERIALSu
Respondent

Docket No. YORK 92-71-M
A.C. No. 30-00009-05509
Docket No. YORK 92-72-M
A.C. No. 30-00009-05510
Docket No. YORK 92-96-M
A.C. No. 30-00009-05511

.• Norwood Quarry

2000

PECISION
Appearances:

Before:

Anthony J. Colucci III, Esq., Block and Colucci,
P.C., Buffalo, New York for Barrett Paving
Materials;
William Staton, Esq., u.s. Department of Labor,
Office of the Solicitor, New York, New York for
u.s. Department of Labor.

Judge Weisberger

These consolidated cases are before me based upon Petitions
for Assessment of Civil Penalty filed by the Secretary
(Petitioner) alleging violations by the Operator (Respondent) of
various mandatory safety standards set forth in Volume 30 of the
Code of Federal Regulations. Pursuant to notice, the cases were
heard in Syr;:;rnc:.::., N.::.,,r York on June 8, 9 and 10, 1993.
stephen w. Field, testified for Petitioner, and·Phillip A. Royce
and Kurt F. Fleury testified for Respondent. Respondent filed a
Closing Statement on September 9, 1993. on September 13, 1993, a
statement was received from Petitioner indicating that he elected
not to file a post-hearing memorandum.
pocket Nos. YORK 92-119-M, YORK 92-71-M, and YORK 92-72-M
At the hearing, Petitioner indicated that Citation No.
3866158, one of the citations contained in Docket No.
YORK 92-71-M and Citation No. 3869498 the subject of Docket No.
YORK 92-119-M, -:,;::;..::.~ !:.;:;. ·,;.:..::::,:.:t..;d e-n the ground that Petitioner is
unable to sustain its burden of proof of establishing the
violations alleged therein. Based on the representations of
counsel, I conclude that the vacation of these citations is
appropriateu and hence order that Docket No. YORK 92-119-M be
DISMISSEDu and Citation Nco 3866158 be DISMISSED.
At the hearing, the parties represented that Respondent is
no longer contesting the following Citations in Docket No.
YORK 92-71-M: Citation Nos. 3866166, 3866168, 3866169, 3866176,
3866177, 3866178, and 3866179. Also it was represented, with
regard to Docket No. YORK 92-72-M, that Respondent was no longer
contesting Citation No. 3867542. It was further represented that
Respondent has agreed to pay the assessed amounts in all these
citations. I have considered the representations of counsel, as
well as all the documentation in the record, and I conclude that
the settlement the parties have arrived at is proper under the
Federal Mine Safety and Health Act of 1977, ("the Act,").
Accordingly it is ORDERED that Respondent pay the full assessed
amount of $471.
Findings of Fact and Discussion
I.

Docket No. YORK 92-96

2001

A.

Citation No. 3866162
1.

Violation of 30 C.F.R.
(a)

§

56.15004

Testimony

On September 17, 1991, Stephen W. Field, an MSHA Inspector,
inspected Respondent's Norwood Quarry operation. According to
Field, he drove up to the area of the crusher in the company of
the quarry superintendent, Kurt F. Fleury. According to Field,
he and Fleury exited the vehicle. Field indicated that he walked
towards the north side of the crusher, and Fleury followed him.
According to Field, when he passed between the crusher and the
conveyor, he observed dust and rock chips in the air and on the
ground. According to Field, when he was approximately within 10
feet of the portable crusher he began to "constantlyu feel rock
chips hitting hi= face and arms (Tr. 19,24). He did not feel the
chips until he was under the conveyor. When Field felt the rock
chips hitting his face and arms, he turned around, and noticed
that Fleury was not wearing,~afety glasses. According to Field,
he asked Fleury to put on safety glasses, and Fleury indicated
that he (Fleury) did not have them with him, and Fleury left the
area. Field indicated that he did not recall Fleury asking
permission to leave. Field testified that when Fleury returned
with his glasses he told him that he was going to issue a
citation.
That evening, Field wrote and subsequently issued to
Respondent a citation under Section l04(d) (l) of the Act,
alleging a violation of 30 C.F.R. § 56.15004, which, as pertinent
requires that persons wear safety glasses " ••• when in or around
an area of a mine or plant where a hazard exists which could
cause injury to unprotected eyes." In this connection, Field
explained that because of the amount of dust and rock chips that
were in the air, there was a hazard of an injury to a person's
eyeso
Fleury testified, in essence, that he exited the pick up
truck with Field in the vicinity of the primary portable crusher.
He said that he stood approximately 2 to 3 feet in front of the
truck, and asked Field if he could be excused to get his safety
glasses from the truck. Fleury testified that Field agreed to
this request. According to Fleury, he checked the glove
compartment of the truck for his glasses, and when he did not
find them, he got into the truck and drove to the office to
obtain his glasses. Fleury testified that when he had been in
front of the vehicle with Field, there was no discussion
regarding glasses. According to Fleury, upon his return to the
area of the crusher, Field told him that he was going issue a
citation because an "employee" was not wearing safety glasses in
a hazardous area. (Tr.l6B) Fleury testified that earlier that
morning, he had seen an employee without glasses near the
portable crusher. Field testified that he had not seen this
employee. On rebuttal, Field testified that subsequent to the

2002

testimony that he gave under direct and cross-examination, he
recalled that Fleury had requested him not to put in the citation
that the supervisor was without glasses, as it would have
embarrassed him, and therefore he (Field) used the word
"employee" in the citation.
(b)

Analysis

Although there are differences in the versions testified to
by Field and Fleury, the record tends to establish the following
set of facts:
(1) On September 17, 1991, Field and Fleury were
on their way to inspect the area of the crusher and the conveyor;
(2) in the area under the conveyor, and in the area between the
crusher and the conveyor, there was a definite hazard of an eye
injury; (3) Fleury did not have any safety glasses in his
possession when he and Field exited the vehicle on the way to.the
conveyor and cr....::::::~cr: ~:i:l (4) the vehicle was parked 60 or 80
feet from the primary portable crusher. Within .the context of
these facts, I find that it has been established that Respondent
did violate Section 56 .l5004.. supra, because Fleury was not
wearing safety glasses 11 around an·area of a mine ••• where a
hazard can exist which could cause injury to unprotected eyes."
(Emphasis added).
2.

Significant and Substantial

According to Field, he concluded that the violation was
"significant and substantial" because he ltfelt the violation was
more serious." ~~~- ~~.
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,
lJ FMSHRC 912, (1991) 1 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 uif, 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 lu 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

2003

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, 183~ (~~;~~t 1~8~}), 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., B
FMSHRC 8, 12 (January 1986).
Southern Ohio, supra at 916-917.
I have found that, as cited, there was a violation of a
mandatory safety standard herein which contributed to a hazard of
an eye injury. It thus becomes incumbent upon the Secretary to
establish that there was a reasonable likelihood of an injuryproducing eve;,:.. .:. . t;;::. , "'"· "'i ~.::. injury, contributed to by the fact
that Respondent's employee was not wearing safety glasses. Field
indicated that there was a large amount of dust and rock chips
that were airborne. He said that he."constantly" felt these
items on his face and arms. He was asked: "What were the size of
the chips?" and he responded as follows: "Small chips, sixteenth
by an eighth inch, eighth inch by an eighth inch" (Tr.24)o
The evidence does not establish that an employee of
Respondent was in the immediate area where these hazardous
conditions existed i.e., between the crusher and the conveyor,
and under the conveyor. 1 There is no evidence that Fleury
sntered this immediate area. According to the version testified
to by Field, Fleury was behind him. It is conjecture that Fleury
would have entered the immediate area where rock chips and dust
were airborne, without having obtained his safety glasses. Also
Fleury indicated that he reviewed accident records for a five
year period, and found that none of Respondent's employees had
1

Fleury testified that he had seen an employee the morning
of the 17th without glasses near the portable crusher, but there
was no evidence as to whether this employee was in the immediate
area of the hazard.

2004

been injured as a consequence of having had a foreign object
enter their eyes, although three truck drivers had been so
injured. Further, employee records going back to 1953 did not
indicate any lost time as a consequence of an eye injury.
Within the framework of this record, I conclude that it has
not been established that there was a reasonable likelihood of an
injury producing event. Accordingly I find that it has not been
established that the violation herein was significant and
substantial.
3.

Unwarrantable Failure

According to Field, he asked Fleury if there was any company
policy concerning the wearing safety glasses, and Field indicated
that there was not. He said that Fleury said that glasses were
available, bu~ that th~~e is no company policy for employees to
wear them. Also, according to Field, Fleury told him that he
does not tell employees the locations on the site where glasses
should be worn. According to ~~eld, at the close out conference
on September 18, Fleury told him that he would make a poor
example for employees, as he seldom wears safety glasses. Fleury
denied making this statement, and indicated that when Field asked
him if he was aware of any company policy concerning the wearinq
of safety glasses, he indicated yes, but that no specific areas
were posted. According to the uncontradicted testimony of
Fleury, the following Notice is provided to all employees, and is
also posted in the scale room, which is where employees punch in:

* * *be worn when welding,
(4) Eye protection must
grinding, cutting, chipping, or any other operation
causing hazard to the eyes.
* * *

Any violation of the above rules will result in
disciplinary actionv including discharge. (Exhibit R-1)
~

* *

I observed the demeanor of the witnesses during their
testimonyu and found Fleury more credible on these points.
In order to establish that a violation results from an
operator's unwarrantable failure it must be established that an
operator has engaged in aggravated conduct which is more than
ordinary negligence (See, Emery Mining Corp., 9 FMSHRC 1997
(1987)). Within the framework of the above evidence I conclude
that Petitioner has not met its burden in this regard.
I find that as a consequence of the violation herein an eye
injury could have resulted. Hence, the violation is of a high
level of gravity. Considering the remaining factors set forth in
Section llO(i) of the Act, I find that a penalty of $150 is

2005

appropriate for this violation.
B.

Order No. 3866175
1.

Violation of Section 56.15004, supra

on September 17, approximately three hours after Field
orally issued Citation No. 3666162, he observed an employee 2 who
was not wearing safety glasses. According to Field, at some
point he noticed the employee (Jack Price) was approximately two
feet from the 4 1/4 inch screen. Field said he also observed
dust in the air, and small rock chips "in the area alongside the
screen" (Tr. 29). He said that the walkway had a "buildup" of
rock chips that was 4 to 6 inches deep (Tr. 29), and extended for
about 5 feet on the east side of the walkway facing north.
According to Field, Price was not wearing safety glasses. Field
said he asked Price wnere his glasses were, and the latter said
they were in the pick-up truck, and that he had just taken them
off.
Fleury indicated that when he went to speak to Price when he
and Field had first observed him, he told him to leave the area,
and to go to where it was safe. Fleury also observed dust and
rock chips airborne when he spoke to Price, but indicated that
they were coming from the crusher below the walkway, and were not
falling on the walkway.
After Field spoke to Price, he informed Fleury that he was
going to issue~ ~n O~dc~ alleging a violation of 30 C.F.R. §
56.15004, supra.
Based upon the above, I conclude that inasmuch as an
employee (Price) was observed around an area where there were
airborne particles that could cause injuries to unprotected eyes,
and the employee was not wearing safety glasses, Respondent did
violate Section 56.15004 supra.
2.

Unwarrantable Failure

According to Field, he asked Price if Fleury had told him to
get his glasses and he answered 11 no" (Tr. 102). Fleury did not
contradict this statement.
As discussed above, I(A) (3) infra, there is no evidence that
Respondent had any policy not to advise employees to wear safety
glasses. Nor is there any evidence that Fleury was aware that
Price was not wearing glasses until he approached him, as Fleury
had been with Field for the entire time'between when he issued
2

The employee was subsequently identified by Fleury as
Jack Price.

2006

Citation No. 3866162 and Order No. 3866175. When Fleury noted
that Price was not wearing glasses, although he did not order him
to get safety glasses, he asked him to leave the area to get to a
safe area. Within this framework, I find that it has not been
established that the violation herein resulted from any
aggravated conduct on the part of Respondent. Hence, it has not
been established that the violation was a result of Respondent's
unwarrantable failure.
(See Emery, supra).
3.

Significant and Substantial

The record establishes that Price was, at the time he was
cited by Field, within a few feet of airborne rock chips, and was
not wearing safety glasses. However, then is no evidence as to
the duties he had to perform which would have required him to
remain in the immediate area of exposure to airborne particles.
There is no evidence reaardina the amount of time Price would
have been exposed to airborne-particles in the subject area, in
the normal course of his duties. For these reasons, and for the
reasons set fe;:r:i:h above, I(A) (2) infra, I find that it has not
been established that there was a·reasonable likelihood of an
injury producing event i.e., an eye injury. Hence it has not
been established that the violation was significant and
substantial. I find that a penalty of $150 is appropriate.
II.

pocket No. YORK 92-71-M
A.

Citation No. 3866159

On Septembar 17, at about 10:30 a.m., Field required an
operator of a 35 ton Euclid haul truck to test the brake lights
by applying the brake pedal. The brake light did not work.
According to Field, the operator told him that he did not realize
or know that the brake light did not work.
The vehicle in question travels from the plant to the Quarry
and back. Part of this route goes down an incline which Field
estimated.to be 15 percent. In addition, two other haul trueks,
a water truck, and a maintenance vehicle, travel the same route.
There are no obstacles, or stop signs between the plant and the
quarry
a

Field issued a citation alleging a violation of 30 C.F.R. §
56.l4100(b)q which provides that: "Defects on any equipment,
machinery, and tools that affect safety shall be corrected in a
timely manner to prevent a creation of a hazard to persons."
Clearly the lack of a functioning brake light was a defect.
Since other vehicles travel the same route, it is conceivable
that should the subject vehicle have stopped without warning due
to a break-down of equipment, a vehicle following it might have
collided with it. Hence, this defect is one that affects safety.

2007

In order for there to be a violation of section 56.14100(b),
supra, it must be established that a defect that affects safety
was not corrected "in a timely manner". The operator of the
vehicle had informed Field that he did not know that the brake
light did not work. There is no evidence as to how long this
safety defect had existed before it was noted and cited by Field.
Under these circumstances, I conclude that it has not been
established that Section 56.14100(b), supra, was violated.
B.

Citation No. 3866160

At approximately 10:40 a.m. on September 17, Field observed
that a brake light was not working on another 35 ton Euclid haul
truck. According to Field, the operator told him that he had not
noticed that the brake light was not working. There is no
evidence as to how long the brake light had not been working
prior to the time it was noted by Field. There is also no
evidence as to when the vehicle was last examined, and what was
noted upon that examination. Accordingly, for the reasons
discussed above regardiDg Citation No. 3866159 it is concluded
that Petitioner has not established a violation of Section
56.14100{b), supra.
c.

Citation No. 3866161
1.

Violation of 30 C.F.R.

§

56.14112Cbl

Field indicated that when he and Fleury were at the primary
portable crusher on SeptP.mber 17, they observed a guard on the
ground. This guard was approximately 4 to 5 feet long, 3 feet
high, and 26 inches wide. Fleury indicated that he did not know
why it was not in place, and that he had not previously noticed
that it was not in its usual place. According to Field, the
lower drive pulley of the belt was exposed. He also indicated
that the pinch-point of the pulley was 5 1/2 feet above the
ground. The unguarded pulley was in operation. Field opined
that although it would have been impossible to reach in and touch
the unguarded pulley intentionally, a person could have tripped
and then touched it accidentally.
Fleury did not contradict the observations of Field that the
guard was not in place over the tail pulley, and that the pulley
was in operation.
Field issued a Citation alleging a violation of 30 c.F.R. fi
56.14112(b). Section 56.l4112(b) supra, provides that guards
shall be securely in place while machinery is being operated,
except when testing or making adjustments which cannot be
performed without removal of the guard.
Inasmuch as when observed by Field, the belt and the pulley
were in operation, and a guard was not in place, I find that

2008

Section 56.14ll2(b), supra, was violated. 3
2.

Significant and Substantial

According to Field, he observed a loader operator walking
within 4 feet of the unguarded pulley while it was in operation.
He indicated that a person in close proximity to the unguarded
pulley could have tripped and touched it, and a serious injury
could have resulted such as loss of an arm or fingers, as the
pulley was rotating at a high rpm. However, the pinch-point was
5 l/2 feet off the ground. There is no evidence that there were
any significant slipping or tripping hazards present. Within
this framework I find that although inadvertent contact with the
pulley could have occurred, it has not been established that this
event was reasonably likely to have occurred. Accordingly, I
conclude that it has not been established that the violation was
significant and gub~tent~~1According to the uncontradicted testimony of Fleury, a
foreman, Dennis Keily, told him that the guards had been taken
off the night before in order to facilitate the checking of the
tension of a new belt that had been installed on September 16. I
find this factor to mitigate Respondent's negligence herein
somewhat. I find that a penalty of $75 is appropriate.
D.

Citation No. 3866163

According to Field, the tail pulley of the portable stacking
conveyor belt lc=~t~! ~t t~~ discharge end of the portable
crusher, was missing a top guard and two side guards. Field said
that the top of the tail pulley was 6 feet above the ground, the
tail pulley was 16 inches in diameter, and the pinch-point was at
the bottom of the tail pulley. The pulley was in operation.
Fleury indicated that the top guard was on the ground. He
said that he was told that the guard had been removed to allow
the belt to be cleaned. According to Fleury, the conveyor was
resting on a rock that he estimated at being almost 6 feet above
the ground. He said that the opening on each side of the pulley
began 6 inches above the rock, and that the tail pulley was
recessed 6 inches inside the frame. I find that the testimony of
Fleury indicated that the guard had been removed the
evening of September 16, as a new belt had been put on the
conveyor the end of the shift of September 16, and its tension
had to be adjusted. Fleury indicated that the belt had to be
tested after it ran, and that it is not possible to check the
tension in the belt without removing the guard. However, there
is no evidence that, when cited, testing or adjusting were being
performed. To the contrary, the evidence establishes that the
belt was in operation when cited by Field.
3

2009

Fleury is insufficient to establish, as argued by Respondent,
that since exposed moving parts were more than 7 feet from
walking surfaces, guards were not necessary.
I find that Respondent did violate Section 56.14112{b),
supra as alleged by Field in the Citation he issued, as the tailpulley was being operated, and the quard was not securely in
place.
The pulley at issue was a self-cleaning pulley with fins
that protruded from the pulley, and provided an additional source
of potential injury. Field testified in essence, that he
observed an employee within 3 feet of the pinch-point. He opined
that. it was reasonably likely that someone would contact the
pinch-point sooner or later, and should this occur a serious
injury would result.
Field did not measure the distance from the path taken by
employees to the pinch-point, nor did he provide the basis for
his opinion that the top of the tail pulley was 6 feet above the
ground, and the diameter of the pulley was 16 inches. In
contrast, Fleury indicated that he is 6 feet tall, and the bottom
of the pulley was at eye level. According to Fleury, the pulley
was set back 6 inches from the frame. He also stated that no one
is assigned to work at the location in issue on a regular or
irregular basis. There is no evidence of any walking or
stumbling hazards in the area in question. Within this framework
I conclude that it has not been established that the violation
was significant Qnd substantial. (See u.s.steel, supra,)
According to Field, the lack of the guard was easily seen.
He said that when he asked Fleury why the guard was not in place,
Fleury said that he had not noticed it, and did not know why it
was not in placeo According to FleuryQ he was told that the
guard was taken off so that the belt could be cleaned. I find
Fleuryvs testimony credible. I find that a penalty of $75 is
appropriate.
Eo

Citation No. 3866164

On September 17u on the west side of the walkway, Field
observed a spoked balance wheel at the east end of the crusher,
moving at a high revolution per minute (rpm). According to
Field, the wheel, which was 4 feet in diameter, was approximately
l foot from the edge of the walkway in a lateral direction.
Field indicated that, about 2 feet above the walkway rail, the
top of the balance wheel was unguarded.
According to Field, the walkway was 30 inches wide. He said
he observed the loader operator walk on the walkway "right by"
the unguarded balance wheel in question. (Tr. 474).

2010

on cross-examination, Field indicated that there were no
pinch-points in the spokes of the wheel, and that the outside
surface of the wheel is smooth. Field also indicated that
diagonal straps between the walkway and the rotating wheel, could
prevent a person from falling onto the balance wheel. He opined
that the pinch-point still can be contacted by a person on the
walkway by reaching between the crusher and the balance wheel.
However, he could not recall the distance between these items.
Field 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 ••• flywheels ••• and similar moving parts that can cause injury.".
§

Due to the position of the wheel in relation to the walkway,
I find that the exposed wheel can be contacted. Should one come
in contact with the moving balance wheel, an injury can result.
Accordingly, it has been established that Respondent herein did
violate Section 56.14107(a), supra.
Field expressed his concern that since the wheel was not
guardedf a person could contact the wheel by reaching around from
the walkway between the crusher and the balance wheel. Field
indicated that this movement could be done "very easily" over the
bars (Tr. 496}. However, he could not recall the distance
between the crusher and the balance wheel. There is no evidence
of the presence of any tripping, stumbling, or slipping hazards
in the area in question. There is no evidence that persons
regularly travel en the ;.:z:.lkway. Two diagonal straps between the
walkway and the exposed fly wheel could prevent a person from
falling onto the balance wheel. Within this context, I conclude
that although inadvertent contact with the unguarded wheel could
have occurred 1 such an event was not reasonably likely to have
©ccurredo Hence, it has not been established that the violation
~as significant and substantial (See, u.s. Steel, supra).
According to Field, the lack of the guard was "easily
(Tr. 476). The cited condition was 1 foot above
the flooru and was along the walkway. Considering this fact
along with the other factors set forth in Section llO(i) of the
Actu I find that a penalty of $125 is appropriate.
~ecognizable"

Fo

Citation No. 3866165
lo

Violation of 30 C.F.R.

§

56.3131

According to Field, on September 17, there were several
loose objects at the top of the 75 foot high highwall to the left
and the right of the loader operator who was loading muck from a
pile on the ground at the base of the highwall. He said that the
loader operator was 30 feet to the left of a "chimney" (a series
of stacked layers of limestone). He said the chimney was 6 to a

2011

inches wide at the top of the highwall, and had separated from
the highwall. He said the separation narrowed towards the bottom
of the highwall. He also described a chunk of loose material 6
feet by B feet by 2 l/2 feet on the top edge of the highwall in
front of the loader. He indicated that, from the floor of the
quarry, a gap could be seen around this chunk. Field opined that
if the loader operator continued working to the left picking up
muck from the pile, he then would be under this chunk. Field
also observed several smaller chunks between this large chunk and
the chimney. He said he also saw smaller chunks on the floor.
Field opined that if the chimney would fall it could go
through the windows of the loader. He said, in essence, that the
loader has roll-over, and "fall-object protective structures",
but a large object falling from the highwall could knock the
loader over, causing a serious injury to the operator inside the
loader.
§

Field issued a Cit~tion alleging a violation of 30 C.F.R.
56.3131 which provides as pert·inent, as follows:
In places where persons work or travel in
performing their assigned tasks, loose or
unconsolidated material shall be sloped to the angle of
repose or stripped back for at least 10 feet from the
top of the pit or quarry wall. Other conditions at or
near the perimeter of the pit or quarry wall which
create a fall-of-material hazard to persons shall be
corrected.

Field was asked if he knows how long it took Fleury to
remove the large chunk that he cited. Field answered as follows:
"I believe he said he just touched it with the dozer blade or
loader and it fell. 11 (Tr.528) In contrast, Fleury indicated that
he operated a 50 ton hydraulic jack between the rock and the
highwall to remove the rock, and it took two hours to push it 3
feet away from the highwall when it fell. He said that it fell
50 or 60 feet to the left of where the loader operator was
operating. I observed Fleury's demeanor in this regard, and
found his testimony on this point credible. Fleury said that, in
additionu in order to abate the Citation 6 he pushed loose
material with his feet from the top of the highwall. He
estimated this material as being between 6 inches and a foot
square. Fleury indicated that he went to the bottom and top of
the highwall with Field, and did not see any chimney. He said
that Field did not tell him that he observed a condition that he
described as a chimney. He said he did not see any crack in the
wall that went down to the toe as described by Field.
Although the evidence is in conflict with regard to the
existence on the highwall of a chimney or a layer of limestone to
the right of the operator, I find that there was ~ loose

2012

material at the top of the highwall. Also, there was a large
chuck of material on the top of the highwall, as described by
Field and not contradicted by Fleury. The presence of the loose
material, and the chunk created ~ degree of "fall-of-materialhazard" to persons. It also is clear that following the normal
course of mining, the loader operator would have been placed
below the chunk of material. Hence, I find that Respondent did
violate Section 56.3131, supra.
.
I find Fleury's testimony credible that it took the SO ton
hydraulic jack two hours to remove the chunk of material from the
top of the highwall. Also, there is no evidence to predicate a
finding that it was reasonably likely for the smaller pieces of
loose material at the top the highwall and for the chimney
condition to have fallen. I thus conclude that it has not been
established that the violation was significant and substantial.
For the same reasons~ I conclude that the violation was of a low
level of gravity. According to Field the loader operator told
him that he had pointed out to his supervisor the existence of
the large chunk on the highwall, small·chunks, and the chimney.
However, there is no evidence establishing when he pointed this
out to his supervisor. Field said he asked Fleury why the
conditions existed, and Fleury told him that he did not realize
the conditions still existed, as he thought they had been taken
care of the previous week. According to Fleury, the highwall had
been blasted 3 or 4 days prior to the inspection, and he had
inspected the perimeter of the highwall for loose material.
Loose material was removed by an excavator. He also indicated
that he reinspe::".:e~ t!':.c !':.i;::.·.~·~ll on September 17, and loose
material was removed. I thus find that Respondent's negligence
herein was only of a moderate level. I find that a penalty of
$50 is appropriate.
Go

Citation No. 3866167

On September 17 0 Field inspected a site at the subject mine
that contained six dump piles. The total area of the piles was
approximately 125 feet long 4 and so to 60 feet wide. Access to
the site was by way of a ramp, and the site was 10 feet higher
than the lower level. There were no berms on the left and right
side of the piles. Field indicated that Fleury told him that up
until two weeks prior to September 17, dump trucks drove up the
ramp, and backed up on top of the piles to dump their load.
Field further indicated that Fleury told him that a bulldozer was
used to push material off the piles. Field did not go to see the
back side of the piles.

4

On cross examination Field said that total length of the
piles was so to 60 feet, and that each pile was 8 to 10 feet
wide.

2013

Fleury testified that between March 1, 1991, and
September l, 1991, he was usually at the subject site 3 to 4
times a week, and observed operations on the dump piles.
According to Fleury, in normal operations before a truck backs up
to dump, a bulldozer is placed towards the edge of the pile. The
truck then backs up alongside the bulldozer, which is approximately the same length as the truck, and which is used as a
reference point to "spot" the trucks.
Field issued a Citation, which, as modified, alleges a
violation of 30 C.F.R. § 56.9301 which provides that berms
..... shall be provided at dumping locations where there is a
hazard of overtravel or overturning". Since the site in question
was approximately 10 feet higher than the ground below it, and
since the dump trucks in their normal operation back up on the
piles to unload, there clearly was a hazard of overtravel or
overturning, jn ~pite of Respondent's practice for bulldozers to
"spot" dump trucks. I therefore conclude that Respondent did
violate Section 56.9301. 5
According to Field, if a truck would go over the edge of a
pile, it would overturn. In that event bruises, sprains,
fractures or even a fatal injury were reasonably likely to have
resulted. However, although the record establishes that there
was a hazard that a truck could have backed over the edge of the
dumping site, there is no evidence in the record to base a
finding that the conditions were such that this accident was
reasonably likely to have occurred. Accordingly it must be
concluded that the violation was not significant and substantial.
I find that a penalty of $75 is appropriate for this
violation.
He

Citation No. 3866170

Respondent 0 s Case 580-C backhoe ("backhoe") is equipped with
a right brake, and a left brake. These two brakes can be
operated independently by two separate pedals. In the
alternative, if a bar is placed over both pedals, the two brakes
can be operated at the same time. According to Field, on
September 17 0 when the vehicle in question was in reverse, he had
the operator apply the two brakes by stepping on the bar that
applied pressure to both pedals. According to Field, the left
rear wheel locked-up, and the front of the vehicle pivoted to the
5

I reject Respondent's argument that the Citation should
be dismissed as the sites at issue were not being used at the
date of the inspection. In normal operations there was a hazard
of over-travel or overturning. Hence, the lack of berms
constituted a violation of Section 56.9301, supra as set forth
above.

2014

right. When the backhoe was examined after Field noted the
above, the left brake fluid reservoir was empty. Field said he
believed that he asked Fleury where the backhoe is used and said
"its throughout the plant" (Tr. 654) Field said that the backhoe
goes down ramps. Fleury did not contradict this testimony.
Field issued a Citation alleging a violation of 30 C.F.R. i
56.1410l(a) (3) which provides that: "All braking systems
installed on the equipment shall be maintained in functional
condition."
Fleury testified that after the Citation was orally issued
he had only the right brake pedal applied, and the vehicle
stopped.
Essentially, at the hearing, it was Respondent's position
that, inasmuc~ ~~ ~~~ =~=~~=c is designed to be stopped with
either brake, and does stop when either brake is applied
independently, the brakes were functional.
Respondent argued
that there is not any regulation requiring that there be no
differential between the right and left side brakes. Respondent
also argues that there is no requirement for the vehicle to stop
in a straight line.
According to Section 56.l4l0l(a) (3) supra the braking
systems are to maintained in "functional condition". Subsection
(a) of section 56.14101 is headed 11 minimum requirements", and
provides that " ••• equipment shall be equipped with a service
brake system cQ.t:-.;:.1..::...; c..r ~~:~LvJ:J,~:.~.ing and holding the equipment with
its typical load on the maximum grade it travels."
I find that the backhoe can be stopped by either the right
brake or the left brake operating independently. However, I
further find, based on the uncontradicted testimony of Field,
~hat when both brakes were depressed at the same time by use of a
~arv the backhoe did not stop right away, but the left wheel
locked-up causing the vehicle to pivot. Accordingly, since the
backhoe did not stop when both brakes were applied
simultaneously, the braking system was not being maintained in
functional condition. I thus conclude that the Respondent did
violate Section 56.14101(a) (3}u supra as alleged.
Field opined that if the brakes were to be applied "hard"
641), an operator would loose control, the vehicle would
~pin.
He said it then could pivot and strike machinery, or a
support beam, and could overturn causing serious injuries.
Certainly this series of event can occur. However due to the
lack of evidence in the record as to the specific distances of
this vehicle to structures and other vehicles in the area it
travels, I conclude that it has not been established that an
injury producing event was reasonably likely to have occurred.
Accordingly it is concluded that the violation was not
~Tr.

2015

significant and substantial.
According to Field, he believed the backhoe operator told
him he did not notice the condition of the brakes. Further,
Field said that Fleury indicated that he was not aware of the
condition of the brakes. I find Respondent's negligence to have
been more than moderate as an operator of the backhoe should have
been aware of the condition of the brakes. I find that a penalty
of $100 is appropriate.
I.

Citation No. 3866171

According to Field, the upper pulley of the No. l conveyor
belt was approximately a few inches laterally removed from the
walkway. He said the pinch-point of the pulley was 27 inches
above the walkway. Field said that the diameter of the pulley
was a to 10 ii.~~eS 1 half of the diameter was not guarded, and the
pinch-point was exposed. According to Field, Fleury, who was
with him, said that he could see the pinch-point was exposed.
Field indicated that Fleury to~d him that no persons are required
to be in the area when the belt is in operation, but someone
could go there to investigate should the belt in that area emit
any noise. Field issued a Citation alleging a violation of 30
C.F.R. § 56.14107(a).
Fleury testified that, when cited by Field, the pulley in
question and its pinch-point were covered by a guard as depicted
in photographs taken later on that day, and before any work had
been undertaken to aba~e ~he violative condition (Exhibits R-9
and R-10). Further, according to Fleury, the distance between
the pinch-point and the outer edge of the guard that was in place
when cited, was l foot 7 l/2 inches. He said that to abate the
Citation, the guard that was in place was removed, and another
guard was installed which was one inch longer. In rebuttal,
Field testified that the pictures that Fleury referred to did not
depict what he had observed. He said that the guard that he had
a observed extended only to the center of the diameter of the
pulley, was a few inches short of the pinch-point, and did not
cover the pinch-point.
I closely observed the demeanor of the witnesses when they
testified, and I found Fleury to be the more credible witness. I
thus find based upon the testimony of the Fleury, that the pinchpoint was guarded, and hence there was no violation of Section
56.14107(a) supra.
Ja

Citation No. 3866172

According to Field, at approximately 2:00 p.m. on
September 17, he observed the No. 2 belt, and saw that there was
no guard around the bottom of the take-up self-cleaning pulley to
prevent contact with the nip-points. Field said that the pulley

2016

was a couple inches above an eye level. He said that his height
is 6 feet 2 inches, and he was 4 to 6 feet away when he made his
estimates that the bottom of the pulley was six feet off the
ground, and the pinch-point was 6 feet 8 inches off the ground.
Field did not measure the diameter of the pulley. Field said
that Fleury told that an employee is required to go to the area
to shovel at the base of the conveyor. Field indicated that he
also observed footprints in the area.
According to Field, on September 18, when he returned to the
subject site, Fleury told him that he had the pulley guarded.
Field observed two side guards in place. He asked Fleury 11 ••• to
extend the guard." (Tr.765)
In contrast, Fleury testified that on September 18, he was
with Field at the tail pulley about noon, and at that time four
guards were in place, and Field had said that the violative
condition was properly abated. Also, Fleury indicated that at
the time the citation was issued there two guards in place as
depicted in a photograph (Exhibit R-19) taken later on that day
before anything had been done to correct the violative condition.
Fleury said that these guards had been installed two months prior
to the date Respondent was cited. Also, according to Fleury,
.
after the Citation was issued, two more screens were added in the
front and in the back of the pulley. He said that pictures taken
on September 17, measure the height of the guard and the pinchpoint. (See, Exhibits R-11 and R-12 indicating the height of the
pinch-point as a few inches above 7 feet).
Field cited Respondent for violating 30 C.F.R. 1 56.14107(a)
which, in essence, requires moving machinery parts to be guarded.
I find that Section 56.14107(a), supra, must be read along with
subsection (b) of Section 56.14107, supra, which unequivocally
provides that guards shall not be required where the exposed
moving parts are at least 7 feet away from walking or working
surfaces~
I place more weight upon the ruler measurement of the
distance to the pinch-point taken by Fleury, as opposed to the
estimate testified to by Field which was not based upon any
actual measurement. I thus find that the pinch-point was more
than 7 feet from the ground. Thus there was no requirement to
guard the pinch-point.
Howeverq since the pinch-point was only a few inches more
than 7 feet above the ground, I find that the bottom of the
pulley, which is below the pinch-point, was less than seven feet
from the ground. Footprints were observed in the area by Field.
Hence, I conclude that there were moving parts of the pulley less
than 7 feet from a walking surface. Hence a guard was required
to protect the bottom of the pulley. I observed the witnesses'
demeanor, and found Fleury more credible regarding his testimony
that on the date cited the pulley in question was protected by
guards on 2 sides. However, even according to Fleury•s testimony

2017

2 sides were unguarded, with the moving part of the bottom of the
pulley less than 7 feet off the ground. Thus Respondent did
violate Section 56.14107 supra.
Taking into account the fact that the pinch-point was more
than 7 feet above the ground, and the fact that exposed moving
parts were close to 7 feet above the ground, I find that it has
not been established that an injury producing event, i.e.,
contact with unguarded moving parts, was reasonably likely to
have occurred. Thus it has not been established that the
violation was significant and substantial. I find that a penalty
of $50 is appropriate.
K.

Citation No. 3866173

According to Field the c-s belt conveyor take-up pulley, a
self-cleaning pull=Y: was 4 feet above the ground. Although
there were guards on the sides and on top, a back guard panel
was missing, and the pinch-point was exposed. 6 Field said that
the pinch-point was about 3 J,/2 to 4 feet above the ground.
Field issued a Citation alleging a violation of 30 C.F.R.
56.14112(b), which provides as follows: "Guards shall be
securely in place while machinery is being operated, except when
testing or making adjustments which cannot be performed without
removal of the guard."
§

Section 56.14112(b) is violated if guards are not securely
in place "while !!'.a-:=hine!"y is being operated". The only evidence
of record on this point is Field's testimony regarding the
conveyor as follows: "It was delivering material to the upper
level." (Tr.BOB) This statement was provided by Field as a
response to the following question: "And were you able to
observe the purpose of this c-e conveyor? 11 (Tr. BOB)o In this
contextv I find Field 1 s testimony ambiguous as to whether the
conveyor was actually observed in operation delivering material,
or as to whether in Field's opinion such is the purpose of the
conveyor9 I thus find that the record is inadequate to establish
that when observed by Field, the unguarded pulley was being
operatedo Hence 0 I conclude that it has not established that
Respondent violated Section 56.14112(b) supra.
L.

Citation No. 3866174

According to Field, on September 17 1 he observed the balance

6

I accept Field's testimony that the side parallel to the
back did not have to be guarded as there was no access to that
side.

2018

wheel 7 of the 01 five and a half screen" (Tr. 624). Field said
that the lower half of the balance wheel was exposed. According
to Field, the bottom of the wheel was 4 1/2 feet above the edge
of a walkway and adjacent to it, although he could not recall
the lateral distance between the two. On cross-examination Field
testified that the distance between the balance wheel and the
walkway was a few inches. He approximated the diameter of the
wheel as 16 inches. He said that the wheel was operating at a
high "rpm". He was asked the location of the pinch-point and he
indicated that " ••• To get your hand in between these spokes while
this balance wheel is rotating, get your hand in the spokes and
then there was a housing above it where your hand would get
pinched" (sic) (Tr. 825).
Field opined that due to the protrusion of bolts on the face
of the wheel, a hand coming in contact with the wheel could be
lacerated or brok~n vpon contacting the bolts.
Field issued a Citation alleging a violation of
Section 56.14107(a), supra.
According to Fleury, a guard did cover most of the wheel
leaving only a small segment, less than half the area of the
wheel exposed, as illustrated on a photograph (Exhibit No. R-15)
taken on September 17, after the area was cited and before
anything had been done to cure the violative condition. He also
testified that, as illustrated by Exhibit R-16, the measured
distance between the subject wheel and the guard was 13 inches. 8
Also Fleury t~~tifi~d t~at ~wployees worked only in assigned
areas, and that no one was assigned to work in the cited area,
and no one is required to be in the area when the conveyor is
operating and the wheel is turning.
Although the evidence is in conflict regarding the extent of
the unguarded portion of the wheel the record is clear that at a
minimum, a section of the wheel that extended down from the top
guard approximately 2 1/2 inches, was not guarded; that the wheel
contained exposed bolts protruding from the surface; and that the
~heel was moving.
Due to its location in proximity to a walkway,
it is conceivable that a person traversing the walkway could have
7

He testified that the wheel was spoked. However he
observed the wheel only when it was spinning, and concluded that
it was spoked based on the blurs that he saw at that time. A
photograph of the wheel indicates that it was not spoked.
(Exhibit R-15 and R-16)
8

On cross-examination, it was elicited that he measured
the distance between the wheel and a point on the guard that
protruded approximately 5 inches from the surrounding surface.

2019

fallen and come in contact with the exposed moving wheel and
bolts, and could have sustained an injury. The fact that persons
are not assigned to work in the area does not negate the
possibility that at sometime a person could traverse the walkway,
and stumble or trip in the area in question. Hence, I find that
the Respondent herein did violate Section 56.14107(a).
Field opined that the lack of a quard herein was easily
recognizable. However, no persons are assigned to work in the
area in question. Also, Petitioner did not rebut or contradict
Fleury's testimony that Respondent had not been cited in the past
for inadequate guarding in this area. I conclude that
Respondent's negligence was only moderate. A penalty of $20 is
appropriate.
III. pocket No. YORK 92-72-M

A.

Citation No. 3866180

On September 19, 1991, Field observed that when the operator

of a 580-C backhoe turned on the motor for the windshield wiper,
it did not work. He also noted that a wiper blade and a wiper
arm were also missing. According to Field, the operator of the

backhoe informed him that he had been at the quarry cleaning
spillage. Field noted that there was dust on the windshield, the
windshield was wet, and light rain was falling. Field said that
vision through the windshield was obscured. However, he did not
observe the windshield from looking at it from inside the
vehicle.
~ield

56

100

issued a Citation alleging a violation of Section
supra.
0

The testimony of Field establishes that, as observed by him
on September 19 1 the vehicle in question was missing a wiper
blade and arm, and the wiping mechanism did not work. The
~indshield had dust on it and also light rain was falling.
Under
'these circumstances, I find that the conditions observed by Field
were defects that created a hazard inasmuch as the view of the
operator would certainly be obscured given the continuation of
normal mining operations.
Field had previously observed and partially inspected the
same vehicle on September 17, when he cited it in connection with
Citation No. 3866170. He also reexaminated it again on September
l8u in connection with the abatement of Citation No. 3866170. On
neither of these occasions did he observe that the wiper arm and
blade were missing. Also Field indicated that on September 17,
the operator of the vehicle in question did not complain to him
about the lack of wiper blades. According to Field, Fleury told
him that no one had reported to him (Fleury) that the wiper blade
and arm were missing, and he had no knowledge of these conditions.

2020

According to Field, on September 19, 1991, the backhoe
operator asked him if he could obtain a windshield wiper. Field
asked the operator if he had reported the lack of a wiper to his
supervisor after the pre-shift examination. Field said that the
operator indicated that he had not because he and others had
reported, "the condition" in the past and had not been able to
get a wiper. (Tr.B66) Field did not know when these reports were
made. Neither the operator of the backhoe nor any other
individual who allegedly made these reports testified in this
matter. There is no indication whether the lack of this specific
wiper and wiper blades had been reported to Respondent. Based on
all these facts, I conclude that although there were defects
observed by Field on September 19, there is insufficient evidence
to establish that Respondent did not timely cure the defects, as
it has not been established the length of time that Respondent
had been aware of the conditions on the backhoe at issue.
Accordingly, this Citr.t;o~ is DISMISSED.
B.

Citation No. 3867541

At the hearing Petitioner indicated in its decision to
vacate this Citation. Petitioner's request in this regard is
granted.
ORDER

It is ORDERED that:
(1) Doc:::k::.t U;,;,.. YORK 92-119 be DISMISSED; (2) The
following Citation Nos. be DISMISSED: Nos. 386615Bu 3866159 0
3866l60u 3866171, 3866173, 3866180, 3866754; (3) Respondent
~hall pay a total civil penalty of $1,15
wi hin 30 days of this
Decision
a

-··
Distribution~

Anthony Jo Colucci III, Esq., Black & Colucci,
Towers 0 Buffalo, NY 14202 (Certified Mail)

P.c., 1250 Statler

William Staton, Esq., Office of the Solicitor, u. s. Department
of Laboru 201 Varick Street, New York, NY 10014 (Certified Mail)

2021

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

22041

SEP 3 01993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
UNITED ENERGY SERVICES, INC. I
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 92-916
A.C. No. 46-01309-03501 KYC
Docket No. WEVA 92-961
A. C. No. 46-01309-03502 KYC
Docket No. WEVA 92-1045

: ... A. C. No. 46-01309-03503 KYC

Docket No. WEVA 93-97
A. C. No. 46-01309-03504 KYC
North Branch Power Plant
SUMMARY DECISIONS
Before:

Judge Koutras
statement of the Proceedings

These proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
'CO section llO{a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for
seven (7) 1 alleged violations of certain mandatory safety and
training standards found in Parts 48 and 77, Title 30, Code of
Federal Regulations. The respondent filed timely contests and
answers, contending that it is an electrical utility subject to
regulation by the Occupational Safety and Health Administration
(OSHA) , and that MSHA has no inspection or enforcement
jurisdiction over its operations. The petitioner takes the
position that the respondent is an independent contractor
performing services at a mine. It also takes the position that
the respondent's operations, except for the cogeneration plant
building itself, is "a coal or other mine" pursuant to the Mine
Act because its operations includes the "work of preparing the
coal" pursuant to the Act.
Issues
The principal issues presented in these proceedings are
(1) whether the respondent is an independent contractor mine
"operator" subject to the Act; and (2) whether the respondent's

2022

cogeneration plant operations (except for the plant building
itself), is "a coal or other mine" subject to the Act. Assuming
that jurisdiction attaches, the additional issues presented
include the alleged fact of violations, the special findings made
by the inspectors who issued the violations, and the appropriate
civil penalty assessments to be assessed for the violations
taking into account the penalty criteria found in section 110(i)
of the Act. Additional issues raised by the parties are
identified and disposed of in the course of these decisions.
Applicable statutory and Regulatory Provisions
1.

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

2.

Sections 110{a) and (i) of the 1977 Act, 30 u.s.c.
§ 820(a) and (d).

3.

MSHA's Independent Contractor regulations, Part 45,
Title 30, Code of Federal Regulations.
Background

The North Branch Cogeneration Plant, also referred to as the
"North Branch Power Plant" or "North Branch Power Project", is
located on an approximately 370 acre site near the City of Bayard
in Grant County, West Virginia. The plant converts coal wastes
contained in a gob pile as fuel to generate electric power. The
plant was built by North Branch Partners, Limited (NB Partners
Ltd.), a partnership comprised of three individuals. NB Partners
Ltd., manages the plant. Approximately ninety eight percent
(98%) of the plant rests on the property secured by the Bank of
America, and approximately two percent (2%) of the plant,
including a belt system and related equipment, is located on land
owned by the Island Creek Coal Company. There is no fence
separating the two properties.
In addition to the portion of the
conveyor belt system located on Island Creek's property, that
property also contains the North Branch Mine, the North Branch
Preparation Plant, and the North Branch refuse area and gob pileu
all of which are operated by the Laurel Run Mining Company. The
respondent asserts that the North Branch Mine and Preparation
Plant are no longer in operation.
The respondent has been described by the parties as a
corporation principally owned by Gilbert and Associates, a
publicly traded corporation. Pursuant to a continuing services
agreement with NB Partners Ltd., the respondent provides labor to
operate and maintain the power plant, the conveyor system to and
from the plant, and the related facilities. The respondent
employs sixty-five (65) people at the plant, including plant
manager Robert E. Seavy, whose deposition reflects that the

2023

respondent has approximately 150 other similar service contracts
throughout the world. Mr. Seavy stated that the respondent
provides "all of the labor to operate and maintain the facility.
We purchase all of the material, parts, consumables, as a service
to them. They pay the bills. We just do the purchasing. We
provide consulting in engineering" (Tr. 12).
Mr. Seavy stated that the respondent's presence at the site
began in the fall of 1988, when it signed a services agreement
contract with the plant managing company, NB Partners Ltd., but
that no personnel were placed at the site until the fall of 1989.
The plant and conveyor belt system were not completed at the time
the service contract was signed, and substantial completion of
the plant was accomplished in the late spring of 1991, when the
conveyor belt system began carrying coal refuse from the gob pile
to the plant (Tr. 15). The respondent's material handling
supervisor, Jim Bowman, testified by deposition that his task is
"to operate and maintain the movement of gob to the power plant",
and that he supervises sixteen,(16) material handlers to do this
(Tr. 8, 11).
·
Mr. Seavy stated that the Wylie Construction Company had a
contract with Energy America to design and install the overlaying
conveyor belt system used to transport the gob to the power plant
and to remove the ash after the gob is burned. He described
Energy America as "the developers of the plant", and indicated
that Energy America had a contract with Security National Bank
(Tr. 15-16). He confirmed that with some modification, the
respondent is maintaining and servicing the belt conveyor system
designed and installed by the Wylie Construction Company.
Although the respondent's service contract and the contract
awarded Wylie Construction overlapped, Mr. Seavy confirmed that
the respondent never had any contractual relationship with Wylie
Construction (Tr. 16)
o

In its response and opposition to the petitioner's summary
judgment motion, the respondent agreed to the following:
The commission and the presiding
Administrative Law Judge have jurisdiction to
hear and decide these docketed proceedings
based on MSHA's issuance of the subject
citations and orders and the respondent's
objections thereto based primarily on its
assertion that MSHA has no jurisdiction over
its operations.
2.

True copies of the citation and orders were
served on the ~espondent.

3.

The citation and orders attached to the
petitioner's proposals for assessment o.f

2024

civil penalties in these proceedings are
authentic copies of the citation and orders
in issue, with all appropriate modifications
or abatements.
4.

At all times relevant to these proceedings,
the respondent has been providing labor to
operate and maintain the power plant conveyor
system pursuant to a continuing service
agreement with North Branch Partners Ltd.

In addition to the aforementioned "Background" information,
the following facts are not in dispute:
1.

Under the terms of the continuing services
agreement with North Branch Partners,
Limited, the respondent has, at all times
relevant herein, been providing the labor to
operate and maintain-the plant, the conveyor
system to and from the plant, and their
related facilities.

2.

The North Branch refuse area contains the
remainder of the material mined over the
years from the North Branch Mine after the
marketable coal was extracted, with this
remainder, or gob, having been transported to
the North Branch refuse area from the North
Branch Mine and the plant. The gob pile
extends at least one (1) mile in length.

3"

The plant uses the circulating fluidized bed
process as the combustion method powering its
electric generating facility.

4.

The plant uses the gob from the North Branch
refuse area by burning it in boilers to
generate electricity.

5.

In order for the electric generating facility
at the plant to use the gob from the North
Branch refuse Area as fuel the gob must
contain no piece that measures larger than
one-quarter (1/4) inch in any direction.

6.

The gob from the North Branch refuse area is
supplied to NB Partners under a contract with
Laurel Run Mining Company, an affiliate of
Island Creek, whereby gob containing at least
3,500 BTU per pound with less than ten (10)
percent moisture content, is supplied, with
Laurel Run providing disposal of the ash.

2025

7.

The gob received from the North Branch refuse
area must contain at least seven (7) to ten
(10) percent carbon to burn in the plant.

a.

At all times relevant to these proceedings,
the portion of the conveyor system resting on
the property owned by Island Creek extends
approximately three hundred (300) to five
hundred (500} feet onto the Island Creek
property and terminates at the North Branch
Mine refuse area.

9.

The respondent is authorized to operate the
conveyor system on the property owned by
Island Creek under the continuing services
agreement with North Branch Partners.

10.

There are no fences separating the conveyor
system from the remainder of the property
owned by Island Creek.

11.

The conveyor system uses two (2) conveyor
belt systems, with the first used to
transport the gob to the power plant, and
with the second used to transport the ash
created from the burning of the gob back to
the North Branch refuse area.

12.

Bulldozers push the gob into a dozer trap
(also referred to as the dozer feeder).

l3o

The bulldozers that push the gob into the
dozer trap are owned by either Island Creek
or Laurel Run, and the bulldozer operators
are employees of Laurel Run.

14.

At all times relevant to these proceedings,
the dozer trap has been resting approximately
three hundred (300) to five hundred (500)
feet from the plant property line and is on
the North Branch refuse area property.

l5o

As the gob is depleted, the dozer trap will
be moved closer to the property line in
increments, and it is expected to reach the
property line in approximately ten (10)
years.

16.

The gob is pushed by the dozers through a
hole in the end plate of the dozer trap.

2026

17.

The end plate of the dozer trap measures
approximately ten (10) feet high and twelve
(12) feet wide, with the hole in the end
plate measuring approximately three (3) feet
by three (3) feet.

18.

Although the hole in the end plate of the
dozer trap measures approximately three (3)
feet by three (3) feet, it has, at all times
relevant to these proceedings, been partially
obstructed by an isolation gate, a sheet of
metal that drops down over the hole so that
the size of the opening can be changed.

19.

At all times relevant to these proceedings 1
the size of the opening in the end plate of
the dozer trap has been no more than two (2)
feet high due to the presence of the
isolation gate.

20.

Items that cannot fit through the opening in
the end plate of the dozer trap are pulled to
the side by employees of either Island Creek
or Laurel Run.

21.

All gob that reaches the plant must pass
through this opening in the end plate of the
plate of the dozer trap.

22.

The gob pushed through the opening in the end
plate of the dozer trap comes to rest on an
oscillating plate that measures approximately
three (3) feet by three (3) feet, and which
moves forward and backward through the
opening~

23.

The movement of the oscillating plate forces
the gob to fall onto a conveyor belt.

24.

As the gob is being transported up the
conveyor belt described in Paragraph 23, an
electrically powered magnet picks up any
metal pieces that may be in the gob, such as
mining bits, pieces of steel, and old
wrenches.

25.

The gob is deposited by the conveyor belt
described in Paragraph 23 onto a grizzly
feeder.

26.

The grizzly feeder contains eight {8) inch bars
which, when the gob falls onto the grizzly feeder,

2027

permits only those gob pieces smaller than eight
(8) inches to pass through, with those pieces
larger than eight (8) inches falling out over the
end, where they are put back onto the gob pile by
employees of either Island Creek or Laurel Run.
27.

The smaller pieces of gob that pass through
the bars of the grizzly feeder fall onto a
conveyor belt called Gob Moveable One, (also
called Gob Mobile one (1) conveyor belt), a
fifty (50) foot transportable conveyor belt,
which caries the gob to the main conveyor
belt, also called the No. 2 Gob Conveyor
Belt.

28.

The dozer trap, the conveyor belt in the
dozer trap, the magnet, the grizzly, and Gob
Moveable One are all owned by NB Partners,
with any repairs tc thes.e items being
performed by the respondent.

29.

At all times relevant to these proceedings,
the dozer trap, the conveyor belt in the
dozer trap, the magnet, the grizzly, and Gob
Moveable One have been located on Island
Creek property, in the North Branch refuse
area.

30.

The main conveyor belt transports the gob
across the property line shared with the
Island Creek property on to the plant
property.

3lo

Title to the gob passes to NB Partners when
the gob is dumped into the dozer trap located
in the North Branch refuse area, but payment
is made by the ton based on the weight at a
scale on the main conveyor belt located on
the plant property.

32.

The main conveyor belt carries the gob and
deposits it into a cone-type hopper called a
truck dump.

33.

The truck dump is approximately forty (40)
feet square and forty (40) feet deep, and can
hold approximately five hundred (500) tons of
gob, which represents approximately seven (7)
hours of fuel.

34.

The gob feeds out of the truck dump through a
vibratory feeder onto another conveyor belt

2028

called Conveyor A, which carries the gob into
the Screening Building, located on the plant
property.
35.

As the gob is being transported by Conveyor A
inside the screening building, another
electrically powered magnet picks up any
remaining metal pieces that may be in the
gob, such as mining bits, pieces of steel,
and old wrenches.

36.

Inside the Screening Building, Conveyor A
deposits the gob onto a Tabor Screen, which
separates the gob larger than three (3)
inches square from the finer gob.

37.

The gob smaller than three (3) inches square
falls through the Tabor screen onto Con~eyor

c.

38.

The gob larger than three (3) inches square
is further separated, with the gob larger
than six (6) inches square being directed
into a reject hopper.

39.

The gob larger than three (3) inches square
but smaller than six (6) inches square rides
along the top of the Tabor Screen and is
directed into an impactor, which crushes the
gob into particles no larger than three (3)
inches square.

40.

After being crushed by the impactor, the gob
referred to in Paragraph 38 is directed back
onto Conveyor C, where it is reunited with
the gob smaller than three (3) inches square.
At this point, all of the gob being
transported is no larger than three (3)
inches square.

41.

Conveyor c carries the gob from the Tabor
Screen in the Screening building to the
Crusher Building, where it goes into another
hopper, which holds a couple of hours worth
of fuel.

42.

The hopper in the Crusher Building drops the
gob into a Pennsylvania Crusher, which
reduces the material down in size to onequarter (1/4) inch.

2029

43.

Upon exiting the Pennsylvania crusher, the
gob drops directly onto G Conveyor, where it
is transported out of the Crusher Building
and carried into the plant building.

44.

The ash created by the boiler in the plant
building is transported out of the building
by screwcoolers and by a NUVA feeder system,
which releases the ash into blowers, which in
turn blow the ash into the Ash Storage Silo.

45.

The ash in the Ash Storage Silo, which has a
capacity of eight thousand (8,000) tons,
falls through the bottom of the silo into a
pug mill, which mixes the ash with water and
transports the mixture to the No. 1 Ash
Conveyor.

46.

No. 1 Ash Conveyor carries the mixture
approximately two hundred fifty (250) feet to
the No. 2 Ash Conveyor, which then transports
the mixture approximately five hundred (500)
feet to the No. 3 Ash Conveyor.

47.

The No. 3 Ash conveyor transports the mixture
to approximately the property line shared
with the Island Creek property, where it
transfers the mixture to Ash Conveyor No. 4.

48.

Ash Conveyor No. 4 transports the mixture
across the property line shared with the
Island Creek property onto the North Branch
refuse area, where it transfers the mixture
onto an elevated conveyor called Ash conveyor
No. 5.

49.

Ash Conveyor No. 5 deposits the mixture into
an ash hopper, which is used to load the
mixture onto trucks to be spread onto the
area near the hopper.

50.

Although NB Partners owns the five ash
conveyors and the respondent operates and
maintains them, neither the ash hopper nor
the trucks that carry the ash are owned or
operated by either NB Partners or the
respondent.

2030

MSHA's Enforcement Activity
MSHA's initial enforcement interest at the plant site began
during the spring of 1991, after MSHA's Oakland, Maryland field
office learned through conversations with Island Creek's
personnel, that a power plant was being constructed at the site,
and that the plant planned to burn the refuse (gob) that was to
be trucked to the plant site from the North Branch mine. The
planned trucking of the gob was apparently abandoned, and a
conveyor belt system was constructed to facilitate the
transportation of the gob from the North Branch refuse area on
Island Creek's property to the plant. The refuse area contains
the remainder of the material mined over the years from the North
Branch mine after the marketable coal was extracted. · That
material, or "gob", was transported to the gob pile located at
the refuse area from the North Branch mine and preparation plant,
and the pile extends for a distance of approximately one mile in
length.
On July 30, 1991, MSHA Inspector Phillip M. Wilt went to the
North Branch refuse area and observed the loading operations
taking place at that location, including the conveyor system
carrying gob to the power plant. Mr. Wilt issued citations to
Island creek coal Company for violations he observed at the
refuse area on Island Creek's property. Mr. Wilt returned the
next day, July 31, to terminate the citations, and he made
additional observations of the area. He next returned to the
area on August 5, 1991, with his supervisor, Barry Ryan, and
after meeting with another MSHA inspector, Edwin Fetty, at the
site, they inspected the refuse area, including the first
conveyor belt which was 80 to 100 feet in length. Mr. Wilt and
Mr. Fetty both issued citations to Wiley Construction Company, a
contractoru for violations found on the North Branch mine
property"
MSHA's next inspection and enforcement activity took place
between February 26, 1992, and August 27, 1992, resulting in the
issuance of the following citations which are the subject of the
instant civil penalty proceedings.
Docket No. WEVA 92-916
This case concerns one section 104(d) (1) citation and three
section 104(d) (1) orders issued on February 26, 1992, by MSHA
Inspector Joseph W. Darios. The citations as initially issued by
Mr. Darios reflect that they were served on Jim Gilkey, at the
North Branch Mine, and the mine operator is identified as the
Island Creek Coal Company. Mr. Darios subsequently modified the
citations by mail on March 3, 1992, to show that they were served
on Bob Seavy rather than Jim Gilkey, and the identification of
the mine operator was changed to reflect United Energy services 1
Inc., rather than Island Creek Coal Company.
The mine

2031

identification number was modified to add the letter "KYC" to ID
Number 46-01309. The citations issued by Mr. Darios are as
follows:
Section 104(d) (1) "S&S" Citation No. 3120276 cites an alleged
violation of 30 C.F.R. § 77.400(d), and the cited condition or
practice is described as follows:
Three employees were observed shoveling the No. 2 Gob
Conveyor Belt tailpiece at the North Branch Refuge
(sic) Project with the guarding removed from the
tailpiece along the roadside.
Jim Bowman, supervisor, is the person responsible.
This citation will be modified to show the operator
name to be United Services Corporation upon issuance of
a contractor identification number.
Section 104(d) {1) "S&S 11 Order No. 3120277, cites an alleged
violation of 30 C.F.R. § 77.400(a), and the cited condition or
practice is described as follows:
The rear tailpiece guard of the grizzly belt tail
pulley was removed and a side guard for the grizzly
belt tail pulley was not provided. The rear tail
pulley guard was simply laying on the ground behind the
belt assembly exposing the roller or pulley at one side
and the rear which could cause injury to persons.
Section 104Cdl{1) 11 S&S" Order No. 3120278, cites an alleged
violation of 30 C.P.R. § 77.400(d), and the cited condition or
practice is described as follows:
The grizzly gob feeder chain drive sprockets and drive
chain located at the rear side of the grizzly belt
assembly near the tailpiece was not guarded because the
cover guard was simply laying on the ground beside the
belt assembly and the exposure may cause injury to
persons.
Section 104(d) (1) "S&S" Order No 3120279, February 26, 1992,
cites an alleged violation of 30 C.P.R. § 77.400(c), and the
cited condition or practice.is described as follows:
The Gob Mobile 1 gob conveyor belt take-up pulley
guarding did not extend a distance sufficient enough to
prevent contact by andjor injury to persons because the
rear side of the tail pulley was exposed approximately
6 inches past the guarding provided and which could
permit contact at the pinch point of the roller and
belt.

2032

Docket No. WEVA 92-961
Section 104(g} {1) 11 S&S 11 Order No. 3120293, was issued on
February 27, 1992, by MSHA Inspector Phillip M. Wilt, and he
cited an alleged violation of mandatory training standard
30 C.F.R. § 48.25(a). The citation, as initially issued,
reflects that it was served on Bruce Hamrick, at the North Branch
Mine, and the mine operator is identified as the Island Creek
Coal Company. The citation was subsequently modified by MSHA
Inspector Frank B. Johnson on March 13, 1992, to show the mine
operator as United Energy Services Inc., and to add the letters
11 KYC" to the previous ID No.
46-01309. The cited condition or
practice is described as follows:
Three employees employed by the United Energy Services
Corporation, Craig w. Knotts, Randy Rohrbaugh, and
Homer Fletcher, were observed working near moving
conveyor belt on the Island Creek Coal Company mine
property during an MSHA inspection on 2-26-92 without
first receiving the requfred training of no less than
24 hrs. of comprehensive training.
The three employees are considered a hazard to
themselves and others, and are removed from the mine
area as required under section 115 of the 1977 coal
Mine Health and Safety Act. Jim Gilkey, manager of
construction at this North Branch fuel supply as the
responsible person.
Docket No. WEVA 92-1045
Section 104{d) {2) "S&S" Order No. 3720850, was issued on May 12,
1992v by MSHA Inspector Kerry L. George, and he cited an alleged
violation of mandatory safety standard 30 C.F.R. § 77.502. The
order was served on Jim Bowman at the North Branch Mine, and the
mine operator is identified as the United Energy Services
Corporation, with Mine ID No. 46-01309-KYC. The cited condition
or practice is described as follows:
A monthly electrical examination was not being
conducted on any electrical components of the beltlines
at the Co-Gen (sic) refuse site. The beltlines were on
mine property and were the responsibility of the
contractor. The area was under the supervision of Jim
Bowman, Foreman.
Docket No. WEVA 93-97
Section 104(g) {1) "S&S" Order No. 3115366, was issued on
August 27, 1992, by MSHA Inspector Kerry L. George, and he cited
an alleged violation of mandatory training standard 30 C.F.R.
§ 48.25(a).
The order was served on Jim Bowman at the North

2033

Branch Mine, and the mine operator is identified as the United
Energy Services Corporation, with Mine ID No. 46-01309-KYC. The
cited condition or practice is described as follows:
Stanley Dragovich, material handler, was determined to
be a new surface miner who had not been given training.
The miner had been employed by the contractor since
April 1991. Dragovich was maintaining beltlines at the
Co-Gen (sic) construction site of North Branch Mine.
The area was under the supervision of Jim Bowman,
Foreman.
Decisions Involving Power Plants
Old Dominion Power Company v. Donovan, 772 F.2 92 (4th Cir.
1985), concerned an electric substation erected on land owned by
Penn-Virginia Resources, and leased to Westmoreland coal Company.
Westmoreland built and owned the substation, and contracted with
Elro Coal company to operate the mine on the property.
Westmoreland purchased high-voltage power from Old Dominion, an
electrical utility, and transmitted it to the substation for
conversion to voltage suitable for use by Elro in its mining
operation. The only facilities owned by Old Dominion at the
substation was a metering device and other equipment used to
determine how much power was purchased by Westmoreland for use
through the substation. In the course of checking the meter
which had reportedly malfunctioned, an employee of Old Dominion
was electrocuted when he touched an energized transformer which
he believed had been de-energized.
MSHA and OSHA conducted an investigation and Old Dominion
was not cited by OSHA. However 1 MSHA concluded that Old
JDominion 8 s employees violated 30 C.F.R. § 77.704 1 a mandatory
st.andard promulgated pursuant to the Mine Act, by working on
high-voltage lines without de-energizing and grounding them.
Confusion then arose as to who should be the recipient of the
citation because Elro was using the power received at the
substation, Westmoreland owned and operated the substation, and
Dominionus employees performed the work that resulted in the
fatality. MSHA initially served the citation on Elro, and then
reissued it to Westmoreland. Approximately one year after the
accidentu the citation was modified to cite Old Dominion as the
responsible mine operator instead of Westmoreland. Old Dominion
contested the citation claiming it was neither an "independent
contractor 91 or an "operator" under the Mine Act.
Former Commission Judge Richard Steffey initially
adjudicated Old Dominion's claim, and he concluded that Old
Dominion was an independent contractor subject to the Mine Act.
Old Dominion Power Company, 3 FMSHRC 2721 {November 1981). In
support of his decision, Judge Steffey cited the legislative
history reflecting Congressional intent for broad coverage of the

2034

Act, and he relied on the fact that Old Dominion had contracted
to construct an electrical facility on mine property, and that
the facility was essential to coal extraction taking place at the
mine because the mining equipment would only operate when it was
connected to electrical power.
Old Dominion appealed Judge Steffey's decision, and the
Commission affirmed the decision. Old Dominion Power Company,
6 FMSHRC 1886 (August 1984). The Commission rejected Old
Dominion's attempts to separate "mine" from "non-mine" work
areas, and held that it was properly cited as an independent
contractor performing services or construction on mine property~
The Commission noted Old Dominion's longstanding relationship
with Westmoreland, including the fact that its employees were at
the mine at the request of Westmoreland. The Commission
concluded that citing the party responsible for violations
committed by its employees effectuated the purposes of the Mine
Act.
(Then Commission Chairman Collyer dissented, and she
concluded that Old Dominion was onlya vendor with limited
presence at the mine).
On appeal of the Commission's decision to the Fourth
Circuit, the court reversed the commission and held that Old
Dominion had no continuing presence at the mine and that its only
relationship with the mine was the sale of electricity. The
court took note of the inconsistent regulations adopted by MSHA
and OSHA with respect to electric utilities, and it stated as
follows at 772 F.2d 99:
Requiring electric utility employees suddenly to adhere
to conflicting standards depending on their job
locations can only lead to danger, especially where
work around high voltage is involved. o o In additionu
other MSHA standards, when applied to electric
utilities, lead to irrational results.

*

*

*

*

*

OSHA had adopted strict and comprehensive safety
standards which include standards specifically designed
to apply to electric utilities. MSHA has adopted
contradictory regulations. The Secretary of Labor has
not articulated any reasons why the standards
applicable to electric utilities under OSHA should be
different from standards which he says are applicable
to electric utilities under MSHA. We conclude that
MSHA regulations do not apply, and were not intended to
apply, to electric utilities such as Old Dominion whose
sole relationship to the mine is the sale of
electricity.

2035

*

Pennsylvania Electric Company v. FMSHRC, 969 F.2 1501 (3rd
Cir. 1992), concerned an electric generating station located in
Homer City, Indiana County, Pennsylvania, owned by Penelec and
the New York State Electric and Gas Corporation. The station
burned approximately 4.5 million tons of coal a year producing
electricity generated by coal combustion. The coal purchased by
Penelec entered the station from a conveyor running from an
adjacent mine operated by Helen Mining Company: from another
conveyor running from an adjacent mine operated by the Helvetia
Mining Company; and from a truck-dump facility receiving coal
brought from various other Pennsylvania mines. The coal was
delivered to the generating station facility by conveyor belts
from the two adjacent mines to scales where it was weighed and
sampled. The coal then moved by conveyor to a bin where it was
combined and again sampled. It was then transported to a second
bin on two conveyors, and then to an on-site coal cleaning plant
where it was broken, crushed, sized, washed, cleaned, dried, and
blended for the electric generation facility. The cleaning plant
was located entirely at the generating station and was owned by
Penelec and New York State Electric and Gas. However, the
cleaning plant was operated under contract with the Iselin
Preparation Company, a subsidiary of Rochester and Pittsburgh
Coal company. MSHA had previously inspected and otherwise
exercised jurisdiction over the cleaning plant since 1977, but it
had never regulated the conveyors used to move the processed coal
leaving the cleaning plant and going to the generating
facilities.
The dispute in Penelec concerned citations issued to Penelec
by an MSHA inspector for failure to adequately guard the head

drives of the conveyors in question to protect persons who might
come in contact with the head rollers. Penelec did not dispute
the fact that the cited guards were inadequate. It disputed the
authority of the MSHA inspector to issue the citations claiming
that it should be inspected and regulated by OHSA. Based on a
joint stipulation of facts submitted by the parties to Judge
Melick 1 he affirmed the citations and concluded that the conveyor
head drives were a part of a facility that constituted a "coal or
other mine 01 as defined by the Mine Act. Judge Melick also
concluded that the coal processed at the cleaning plant for
consumption in the Penelec generating station fell within the
scope of 99 work of preparing coal" within the meaning of the Actq
and that the head drives over which the coal passed on its way to
the plant were "structures", "equipment", and "machinery" that
was i'used or to be used in" the 11 work of preparing the coal".
Under all of these circumstances, Judge Melick concluded that "it
is clear that the head drives of the 5A and 5B conveyor belts are
indeed subject to the Secretary's jurisdiction under the Act."
Secretary of Labor (MSHA) v. Pennsylvania Electric Company,
10 FMSHRC 1780, 1782 (December 1988).

2036

On appeal of Judge Melick's decision, the Commission took
note of the fact that MSHA's regulation of the working conditions
inside Penelec's on-site cleaning plant, as well as the mines
adjacent to the generating station that delivered coal directly
to the station by means of the conveyor systems, were not
challenged by Penelec. Although the Commission found that Mine
Act jurisdiction attached to the two cited conveyor head drives
in question, it found that "Because of the pervasive ambiguity in
the record", it was unclear as to whether or not the cited
working condition was enforced under the Mine Act, as argued by
MSHA, or by regulations enforced by OSHA, as argued by Penelec,
and it vacated Judge Melick's decision and remanded the case to
him for further proceedings on the jurisdictional question
presented and the entry of a new decision. ·Secretary v.
Pennsylvania Electric Company, 11 FMSHRC 1875, (October 1989).
In remanding the case, the Commission observed as follows at
11 FMSHRC 1884, 1885:
At oral argument before us, counsel for the Secretary
asserted that the MSHA district manager's letter reflects
MSHA's policy of inspecting those areas of a power plant
that involve the handling and processing of run-of-mine coal
and of leaving to OSHA the inspection of those areas that ·
involve the handling of previously processed coal. O.A.
Tr. 28, 29-30, 33. We note, however, that in a prior case
involving a coal handling power plant, the Commission was
advised, by different secretarial counsel, that:
MSHA traditionally has not inspected power plants.
Although the Secretary is not able to cite to a
particular memorandum incorporating this policy, MSHA
and its predecessors have consistently found the
production of power to be outside the jurisdiction of
the agency. MSHA has taken into account that a portion
of the process utilized to produce electric power from
coal requires handling and processing coal but has
determined that those activities are subsumed in the
specialized process utilized to produce electric power,
and that the overall power plant process is more
feasibly regulated by OSHA.
Utility Fuels, Inc., Docket No. CENT 85-59 (Sec. Motion
to Dismiss (November 29, 1985).

*

*

*

*

*

*

*

The importance of, and confusion concerning, the
jurisdictional question presented in this case is further
heightened by the fact that subsequent to the issuance of
the citations in question, the Secretary through OSHA,
proposed new, comprehensive safety standards applicable to
the operation and maintenance of electrical power generation

2037

facilities.
54 Fed. Reg. 4974-5024 (1989). On their face,
and as explained in the accompanying explanatory materials,
these regulations would appear to directly apply to
operations such as Penelec's including the coal handling
aspects of such operations.

*

*

*

*

*

*

*

These conflicting indications of Secretarial intent raise
serious questions as to which agency in the Department of
Labor exercises safety and health authority over power
generating stations such as Penelec's. The answer is of
great consequence to Penelec and its employees. It is also
of importance to similarly situated operators of coal
burning electric utilities who, along with Penelec,
must know which safety and health standards must be
complied with and which statute prescribes the rights
and duties to which they and their employees must
conform their conduct.

*
* * *

*

*

*

*

*

*

Because of the pervasive ambiguity in the record on
the question of whether the Secretary of Labor, through
MSHA, has properly exercised her authority to regulate the
cited working conditions at Penelec's Generating Station,
and the importance of this question, we find it appropriate
to order further proceedings. We encourage the Secretary to
give serious consideration to the questions raised by this
case and to follow the procedures in the OSHA-MSHA
Interagency Agreement to resolve the conflicting positions
taken on her behalf. To do otherwise would be to ignore the
potential whipsaw effects to which an employer can be
subjected when important jurisdictional issues appear to be
resolved with no assurance that potentially competing
agencies have reached a mutual and definitive determination
as to their respective roles.
On remand to Judge Melick, the Secretary of Labor took
vigorous exception to the Commission's comments concerning the
QU internal decision-making prOCeSSeS and intrUSiOn
intO her
reasons and motives for such decisions . . . • " 12 FMSHRC 123
(January 1990) • The Secretary believed that she had sole
discretion pursuant to the Mine Act to decide whether OSHA or
MSHA should inspect the subject area of the mine based on
9
'administrative convenience". Although Judge Melick found no
basis for sanctions against the Secretary, he stated that "this
does to mean that the Secretary's practices disclosed at hearings
should be condoned or be found to be acceptable.
Indeed the
Secretary's past practice of determining MSHA inspection
authority over the subject area • • . • is quite bizarre and
a

2038

o

o

clearly unacceptable". 12 FMSHRC 123. Judge Melick found that
once Penelec raised the issued of MSHA/OSHA jurisdiction, nthe
matter was resolved at the local level".
Upon reconsideration of the case, and in an evenly split
decision, the Commission allowed Judge Melick's decision on
remand to stand as if affirmed. 12 FMSHRC 152, 1563
(August 1990). The Commission reaffirmed its previous finding
concerning Mine Act jurisdiction over the cited conveyor head
drives. With respect to MSHA/OSHA jurisdiction, the Commission
observed as follows at 12 FMSHRC 567-1568:
The evidence produced by the Secretary on remand makes
clear that the particular area in question has been
inspected by MSHA since at least 1982 and no evidence
was produced to show that OSHA has ever inspected it.
As a consequence, the Interagency Agreement has no
bearing on this case because no question or conflict
between OSHA and MSHA existed. We now know 'that the
Secretary has consistently inspected the head drives
under the Mine Act rather than the OSHA Act. As
discussed above, Penelec had notice of this fact.
Penelec filed an appeal with the Third Circuit, and the
Court affirmed the Commission's decision. Pennsylvania Electric
Company v. FMSHRC, 969 F.2D 1501 (3rd Cir. 1992). The court
upheld MSHA's authority to regulate coal handling and processing
areas at an electric power generating station, and it further
held that the cited work activity was clearly antecedent to and
separate from the process of producing electric power, and
instead, constituted coal preparation. The court observed that
Gait is clear that Penelec 1s head drives come under the Mine Act
jurisdiction, regardless of whether the facility receiving the
coal for processing is also under Mine Act jurisdiction. We need
only look to MSHAus regulation of the conveyors leading to the
coal cleaning facilities to reach the proper decision in this
case" 969 F.2d 1504.
Westwood Energy Properties v. Secretary of Labor {MSHA},
11 FMSHRC 105 (January 1989)u concerned a large culm bank refuse
pile located in Tremont, Pennsylvania on property owned by
Westwood Energy, the operator of a power generating plant located
on the premises. The plant was built on the site of an
anthracite mine that ceased operations in 1947, and the culm pile
was created as the refuse product of the previously operated mine
and preparation plant. The pile contained coal mine refuse,
including rock, slate, shale, wood, metal, both ferrous and
nonferrous, granite, quartz, pyrite, and a small percentage of
coal and other carbonaceous material. Westwood used the material
in the culm pile as fuel to generate electrical power which was
sold to the Metropolitan Edison Company. Westwood engaged a

2039

contractor to remove the material from the Culm bank and load it
into hoppers where wood and other materials larger than 12 by
12 inches were removed. Metal was removed by means of a magnet
and a metal detector. The culm material was then transported to
a silo and crushed in two steps to a particle size of one-eighth
of an inch. It was then transported to the combuster where it
was burned in a process called a circulating fluidized bed
process of combustion. This process resulted in steam which
drove turbines and created electrical power.
On october 27, 1987, MSHA inspectors appeared at the
Westwood site seeking entry to conduct an inspection. Westwood
took the position that it was a power generation facility not
subject to MSHA's jurisdiction, and it denied entry to the
inspectors. MSHA obtained a restraining order permitting the
inspection, and the inspectors returned on November 14, 1987,
conducted an inspection, and issued several citations. At the
time of the inspection, the work was being done by Westwood's
contractor and its 30 to 35 employees, but Westwood was in
overall charge, and except for the question of jurisdiction, it
did not dispute the violations.
Commission Judge James Broderick found that Westwood's
activities were subject to the Mine Act and to MSHA's
jurisdiction, and he affirmed the citations. Judge Broderick
reasoned as follows at 11 FMSHRC 111, 115-116:
The Secretary of Labor is given the initial
responsibility for determining whether a facility is
subject to the Mine Act. She is in a unique position
to determine the dividing line between MSHA and OSHA
jurisdiction? since both programs are administered by
hero I assume that the issuance of citations by MSHA
to Westwood reflects the Secretary's determination that
the subject facility is a mine and therefore is subject
to the Mine Act. Although such a determination is not
binding on the Commission, it must be accorded great
weight in our consideration of the jurisdictional
questiono

*

*

*

Westwood argues that "it is a power plant, pure and
simple"; that it utilizes a stockpile of fuel as a
conventional power plant would use a stockpile of coal.
It consumes fuel and does not produce a marketable
mineral. Westwood's argument emphasizes the latter
distinction as if the marketing of coal or other
mineral is essential to the idea of mining or coal
preparation. But it is not uncommon for mine operators
to themselves consume the products of their mines. And
Westwood does more than burn the culm material; it

2040

*

prepares it ''for a particular use." Elam, supra:
it
extracts the culm from the bank and loads it into
hoppers, where certain waste materials are removed; it
then transports it on a conveyor belt where ferrous
metals are removed by a magnet; thereafter a metal
detector seeks other metals which are rejected. The
residual fuel is then crushed or sized to particles
approximately one quarter inch in size. All this takes
place prior to the fuel being introduced into the
boiler building. These activities closely resemble the
"work of preparing the coal" as defined in the Act.
I am persuaded that the sweeping definition of a coal
or other mine in the Act, and the admonition in the
Legislative History that the term be given the broadest
possible interpretation brings Westwood's facility
within its terms. Any doubt that the culm bank is or
includes "lands . • • • structures, facilities, . • .
or other property including impoundments, • . . on the
surface or underground, used in, • . . or resulting
from the work of extracting such minerals from their
natural deposits . • . 11 must be resolved in favor of
coverage.
am further persuaded that Westwood's use of the culm
includes the work of preparing the coal, since it
breaks, crushes, sizes, stores and loads anthracite,
and does other work of preparing coal usually done by
the operator of a coal mine.
I

In both of these conclusions, I am giving deference to
the determination by the Secretary of Labor that
Westwood's facility and operation are subject to the
Mine Act.
Westwood appealed Judge Broderick's decision to the
Commission. Westwood Energy Properties v. Secretary of Labor
(MSHA>v 11 FMSHRC 2408 (December 1989)Q Westwood contended that
its operations at the culm bank were but one component of an
operation of an electric generating facility subject to the OSHA
Actu rather than the Mine Act. The Secretary asserted mine Act
jurisdiction in connection with Westwood's culm bank activities,
but did not assert Mine Act jurisdiction with respect to the
working conditions inside the power generating facility itself,
and it took the position that those activities were subject to
OSHA jurisdiction. Westwood maintained that the entire facility,
including the culm bank, was properly regulated by OSHA.
The Commission found that Westwood's activities fell within
the Mine Act's definitions of "mine" or "work of preparing the
coal", and it concluded that the Secretary had statutory
authority to make safety standards applicable to the disputed

2041

area. However, the Commission was unable to conclude from the
record whether the Secretary chose to exercise her authority to
regulate Westwood's operation under the Mine Act or the OHSA Act,
and it remanded the matter to Judge Broderick for the taking of
further evidence and the entry of a new decision. In remanding
the matter to Judge Broderick, the Commission stated as follows
at 11 FMSHRC 2414-2415:
We conclude that Westwood literally engages in the
"work of preparing the coal" in that the processes
undertaken by Westwood on the mine waste material,
including coal, are among those specified in the
statutory definition. We further conclude that
although Westwood does not undertake to prepare the
coal contained in the mine refuse to meet market
specifications, it does engage in the enumerated
processes, as does the normal coal mine operator, for
the purpose of making the mined material suitable for a
particular use; here, as ,a fuel to be consumed at an
electric generating facility.
Although Westwood further argues that it is exempt from
Mine Act jurisdiction because it does not prepare the
culm for resale but rather is the ultimate consumer of
the culm, we rejected a similar "ultimate consumer"
argument in Pennsylvania Electric. 11 FMSHRC at 1881.
We noted that under the Mine Act consumers of coal who
otherwise meet the applicable definition of "mine" or
"work of preparing the coal" are not provided any per
se exclusion from the Act's jurisdiction. We held
instead that the determination of Mine Act jurisdiction
is governed by the two part analysis first set forth in
Elam and followed in subsequent caseso
(footnote
omitted).
Andq further at 11 FMSHRC 2419:

* * * *As we did in Pennsvlvania Electric, we encourage
the Secretary to give serious consideration to the
questions raised by this case and to follow the
procedures in the OHSA-MSHA Interagency Agreement to
resolve the conflicting positions taken on her behalf.
on August 3, 1990, Judge Broderick issued his decision on
remand, 12 FMSHRC 1625 (August 1990), when he approved a
settlement submitted by the parties. Westwood agreed to pay
civil penalty assessments in settlement of the contested
citations, and Judge Broderick dismissed the case subject to
payment by Westwood. The decision summarizes the settlement as
follows at 12 FMSHRC 1625:

2042

The settlement agreement provides that Westwood will
withdraw its contest proceedings and pay the $900 in
civil penalties assessed in my decision of January 26,
1989. It further provides that MSHA will not assert
jurisdiction over Westwood's facility in the future, so
long as Westwood does not materially change the manner
in which it processes culm as described in the
Commission decision. If MSHA determines that a
material change has occurred and decides to reassert
its jurisdiction, it will so notify Westwood. Westwood
does not admit MSHA's jurisdiction over any portion of
the Westwood facility and its withdrawal of the notices
of contest is without prejudice to its right to contest
any future assertion of jurisdiction by MSHA.
Air Products and Chemicals, Inc. v. Secretary of Labor
CMSHAl, 13 FMSHRC 1657 (October 1991), concerned an electric
generating facility (Cambria CoGen) utilizing two combustion
boilers with bituminous coal refuse as its primary energy source
to power a steam turbine generator. Air Products operated the
facility, and its primary business was the production and sale of
electricity to the Pennsylvania Electric Company, and the
production of steam for a local nursing home. Air Products was
cited with a violation of section 103(a) of the Mine Act for
refusing to allow an MSHA inspector to enter its facility for an
inspection. The matter was adjudicated by Commission Judge Gary
Melick, and the issues included whether or not the facility areas
in issue were a "coal mine" within the meaning of the Act and
therefore subject to MSHA jurisdiction, and if so, whether MSHA
exercised its authority in a manner sufficient to displace OSHA's
enforcement authority.
Judge Melick described the process taking place at the
facility as follows at 13 FMSHRC 1658:
The fuel is obtained from bituminous coal refuse piles
located at a mine owned by RNS Services, Inc. (RNS)u
and supplied by RNS. The coal refuse is delivered by
truck to the Cambria CoGen facility and dumped into a
hopper at the refuse receiving building. The product
then passes through a grizzly which screens out large
objects, including rock, slate, timbers, roof bolts,
and large pieces of coal. The product is then
transported to a refuse storage building and then
conveyed as need to the Bradford breaker building. It
is there fed onto a rotating Bradford drum breaker
which further screens and sizes the material for easier
handling and to prevent damage to other equipment in
the facility.

2043

The rema~n~ng minus-6 inch material then proceeds onto
the c-1 belt to a refuse storage dome. A stacker
distributes the piles and a reclaim machine places coal
on another conveyor as needed. The c-2 belt then
transports coal to the crusher building where screens
separate minus-2 inch material. That material is then
further crushed to one-quarter inch to zero-inch size
with a roll crusher. This product is then conveyed to
the boiler building storage facility, where it is
stored until conveyed to the boilers by way of the
boiler plant feed belt. The Secretary acknowledges
that MSHA jurisdiction would not extend beyond the
point where the coal product is dumped onto the plant
feed belt. (Emphasis added).
In addition to refuse coal, run-of-mine coal is used in
the boilers to maintain a proper mix of combustibility.
This coal is delivered by_ truck and transported by belt
to the run-of-mine coal storage tepee. That material
then proceeds to the crusher building where it is
screened down to one-quarter inch by zero-inch size.
The material is then fed to the boiler building but
stored separate and apart form the refuse coal for
later mixing as needed for the boilers.
Citing the statutory definitions of a "coal or other mine",
Judge Melick concluded that the cited areas came within Mine Act
jurisdiction, and he stated as follows at 13 FMSHRC 1661:
Within this framework, it is clear that in at least a
portion of the Cambria CoGen facility cited by MSHA in
this caseu coal refuse is brokenu crushed, sizedu
andjor cleaned in preparation for consumption in the
generating facilityo These activities are all within
the scope of "work of preparing coal" within the
meaning of section 3(i) of the Mine Act. It is also
clear that the area at issue includes "structures,"
00 equipmentu 81 and machinery" that are "used in or to be
used in 11 the nwork of preparing the coal. 10 It is
therefore clear that the areas cited in this case were
indeed subject to Mine Act jurisdiction. In this
regard it is also noted that Air Products acknowledges
that the nature of the facility herein is essentially
indistinguishable from the nature of the facility found
by the Commission in Westwood Energy Properties, 11
FMSHRC 2408 (1989), to be within Mine Act jurisdiction.
Notwithstanding his jurisdictional finding, Judge Melick
further concluded that the Secretary failed to clearly designate
whether OSHA or MSHA should exercise regulatory authority over
the working conditions at the Air Products facility, and he cited
the Commission's prior discussions in the Westwood Energy and

2044

Pennsylvania Electric cases. Judge Melick concluded that the
record before him failed to reflect "a reasoned resolution of the
jurisdictional questions by the Secretary and her agencies", and
that MSHA's inspection of the facility "simply resulted from an
ad hoe unilateral assertion of jurisdiction by MSHA". 13 FMSHRC
1663. Under all of these circumstances, Judge Melick vacated the
contested citation issued to Air Products, and both parties
appealed the matter to the Commission. The Commission granted
review on November 15, 1991, 13 FMSHRC (November 1991), and the
matter is still pending.
Petitioner's Arguments
In support of its motion for summary judgment in the instant
cases, the petitioner maintains that the respondent's operations
are subject to Mine Act jurisdiction under two separate statutory
provisions. First, petitioner asserts that the respondent is an
"operator" under section 3(d) of the Act because ~t is an
"independent contractor • • • 'performing services" at a mine.
Second, petitioner believes that the respondent is subject to the
Act because an analysis of the functions it performs requires the
conclusion that its entire operations preceding the entry of the
gob into the plant building must be considered a "coal or other
mine" under section 3(h) of the Act because its operations
perform the "work of preparing the coal" under section 3(i) of
the Act.
Petitioner points out that all of the contested citations
and orders that are the subject of these proceedings were issued
for violative conditions found on the North Branch Mine property.
MSHA concludes that the operations taking place on North Branch's
property clearly constitute "a coal or other mine" as that term
is defined in section 3(h) of the Act, citing Secretary of Labor,
MSHAu v. Westwood Energy Properties, 11 FMSHRC 2408 (1991} (culm
bank is a 11 mine"); Consolidation Coal Co. v. FMSHRC, 3 BNA
MSHC 2135 (4th Cir. 1986) (coal refuse pile is a "mine").
Citing Secretary of Labor, MSHA v. Otis Elevator co. 0
11 FMSHRC 1896 (October 1989)u aff'd, 921 F.2d 1285 (D.C. Cir.
1990); National Indus, Sand Ass'n. v. Marshall, 601 F.2d 289 (3rd
Cir. 1979); and Old Dominion Power Co., v. Secretary of Laboru
772 F.2d 92 (4th Cir. 1985), petitioner asserts that an
independent contractor's proximity to the mining process 8 and
the extent of its presence at the mine, are critical factors in
determining whether an independent contractor is an "operator"
under the Act. Petitioner further relies on the Commission's
decision in Secretary of Labor, MSHA v. Bulk Transportation
Services, Inc., 13 FMSHRC 1354, 1357 (September 1991), holding
that an independent trucking company hauling a substantial amount
of coal from a mine to an electric generating station was the
exclusive coal hauler between the mine and the station, and that
these services constituted essential services closely related to

2045

the coal extraction process subjecting the trucking company to
jurisdiction under the Act and to MSHA's enforcement
jurisdiction.
Petitioner points out that the conveyor system operated and
maintained by the respondent is the exclusive means of
transportation for substantial amounts of gob from the mine
refuse area to the plant which is the only customer for the gob.
Under the circumstances, the petitioner concludes that the
respondent's operations on the North Branch Mine property clearly
perform an essential service for the mine. Petitioner further
concludes that the extent of the presence of the respondent on
the mine property must also be held to be clearly sufficient. In
support of this conclusion, petitioner points out that the
conveyor and related equipment have been continually present at
the mine refuse area since their construction, and they are
expected to continue their presence there for the next ten years.
Further, the petitioner asserts that the respondent's employees
must frequently and regularly,enter.on the mine property in order
to clean the grizzly conveyor magnet each day, adjust the
isolation gate in the end plate of the dozer trap, inspect,
maintain, and repair the conveyor belt system, and clean up
spills around the conveyor belts.
In support of its argument that the respondent is an
operator" because it operates, controls and supervises the coal
mine operations of the power plant at that property, the
petitioner asserts that the respondent's work activities
preceding the entry of the gob into the power plant building are
the same as those found by the Commission to constitute the "work
of preparing the coal" in Westwood Energy Properties, supra. In
support of this conclusionq the petitioner relies on the fact
that the gob is excavated by bulldozers, then subjected to a
series of filters to remove the larger particles. Because the
plant uses the same circulating fluidized bed process as in
Westwood to burn the gob, the gob is broken and crushed to a
small uniform size no greater than one-quarter (1/4) of an inch.
After the gob is cleaned through the use of magnets which removes
the metal 0 it is stored in hoppers at the truck dump and in the
crusher building, where it is gradually released into crushers.
Under all of these circumstances, the petitioner asserts that the
Westwood decision demands the conclusion that the processes
undertaken by the respondent on the mine gob waste material,
including coal waste, constitutes the "work of preparing the
coal" because they are among the processes specified in the
statutory definition.
81

The petitioner also relies on the Third circuit's holdings
in Pennsylvania Electric Co., supra, that the delivery of coal
from a mine to a processing station via a conveyor constitutes
coal preparation "usually done by the operator of a coal mine",
969 F.2d·at 1503, and that this was true "regardless of whether

2046

the facility receiving the coal for processing is also under Mine
Act jurisdiction", 969 F.2d at 1504. Petitioner concludes that
the Court's holding demands that the entire conveyor system
outside of the power plant building be found to be a "coal or
other mine", including the portion of the conveyor belt system
operated and maintained by the respondent in the instant
proceedings on mine property. Since the entire operations of the
respondent, preceding the entry of the gob into the plant
building, constitute the "work of preparing the coal" as defined
in Section J(i) of the Mine Act, petitioner concludes that these
operations are a "coal or other mine" under Section J(h) of the
Act, and that it had jurisdiction under the Act to issue the
citation and orders for the conditions found at the respondent's
operations being conducted on the North Branch Mine property.
Respondent's Arguments
Citing the Mine Act statutory definitions of "coal or other
mine" and the"work of preparing coal", the respondent asserts
that it is clear from the definitions and the scope of the Act
that a two (2) step analysis is applicable in determining whether
its activities fall within the Act; namely, (1) which if any, of
the enumerated processes apply to the respondent's operations,
and (2) whether the enumerated processes are undertaken nas is
usually done by the operator of a coal mine". The respondent
believes the relevant issue is whether the coal is being prepared
for commercial purposes. Citing the Commission's decision in
MSHA v. Oliver M. Elam, Jr., 4 FMSHRC 5 (January 7, 1982), the
respondent points out that the Commission recognized that the
generally broad interpretation of the Act has certain limits, and
that simply because an operator in some manner handles coal does
not mean that its operations constitute a "mine" subject to the
Act. The respondent further points out that the commission has
acknowledged that it is not sufficient to check-off whether the
enumerated processes are being performed, and that the nature of
the processes must also be considered.
The respondent asserts that the Commission followed the
aforementioned two-step process in Alexander Brothers, Inc.,
4 FMSHRC 541 (April 1982), and Donovan v. Inland Terminals, Inc.,
3 MSHC (BNA) 1893 (DC SD Ind., March 28, 1985), in determining
whether the enumerated coal processes were being performed in
order to release the coal into the chain of commerce. Respondent
also cites the Pennsylvania Electric Company decision, supra, in
support of its argument that the performance of listed work
activities and the nature of the operation performing those
activities are relevant in determining whether "coal preparation"
is taking place.
Acknowledging the fact that the legislative history of the
Act reflects that the statutory definitions should be given the
broadest possible interpretation, the respondent concludes that

2047

Congress never intended for ultimate consumers of coal, like the
plant in question, to be regulated by the Act, and that the
Congressional intent was to regulate only traditional mines, and
to establish a single mine safety and health law applicable to
all mining activity. Citing and quoting Commissioner Doyle's
dissent in Pennsylvania Electric Company, 11 FMSHRC 2t 1889-1890,
the respondent argues that there is no indication of any
Congressional intent to "follow the coal wherever it may go" and
to regulate other industries such as electric utilities or steel
mills. The respondent maintains that coal-fired power plants
have historically been regulated by OSHA rather than MSHA, even
though the plants engage in many of the enumerated processes
defined as the "work of preparing coal" under the Mine Act.
Accordingly, the respondent concludes that the Act has
consistently been construed as less than all-encompassing, and
that Congressional acquiescence in this interpretation is
conclusive evidence that MSHA's insistence that it has
jurisdiction over the power plant in the instant proceedings
is inconsistent with years of-prior policy.
The respondent asserts that the applicable definitions of
"coal mine" and "work of preparing the coal" at issue in these
proceedings also apply to cases decided under the Black Lung
Benefits Act, 30 u.s.c. § 901-945, a subchapter of the Mine Act.
Citing several cases decided in the context of black lung
disability claims, the respondent argues that unless a commercial
purpose is involved, the phrase "preparation of coal" has no
application. The respondent cites the case of Wisor v. Director.
OCWP, 748 f.2d 176, 179 (3rd Cir. 1980), as a holding by this
Commission that the definition of a coal mine "includes a
commercial purpose requirement".
The respondent asserts that the Court majority in the
Pennsylvania Electric Company case misconstrued the two black
lung cases it relied on in reaching its decision. The respondent
maintains that if the Commission accepts MSHA's contention that
its operations constitute "the work of preparing coal" based upon
the occurrence of the previously discussed enumerated processes,
then the Commission must totally disregard any exception for the
ultimate consumer of coal, a result that the respondent believes
would extend Mine Act jurisdiction far beyond the point intended
(quoting from the dissenting judge in the Pennsylvania Electric
Company case) .
The respondent further argues that reliance on an evaluation
of the presence of enumerated processes without an assessment of
the nature of the operation in terms of whether it is the
ultimate consumer of the coal would require that at least that
portion of any business which uses coal would be subject to the
Act. The respondent concludes that an abandonment of the
"ultimate consumer stream of commerce" test would not provide any
reasonable guidance in future cases on the issue of where milling

2048

preparation ends and manufacturing begins. Citing Old Dominion
Power Company, supra, at 772 F.2d 99, the respondent further
concludes that accepting the position of the petitioner with
respect to MSHA's enforcement jurisdiction would also have
potentially serious safety consequences. For all of the reasons
noted, the respondent believes it is evident that its activities
do not constitute the "work of preparing coal" as contemplated by
the Mine Act, and that the Act is not applicable.
MSHA vs. OSHA Enforcement Jurisdiction
As an alternative argument, the respondent maintains that
MSHA has failed to exert its regulatory authority in such a
manner as would preempt OSHA jurisdiction. Citing Columbia Gas
of Pennsylvania, Inc., v. Marshall, 636 F.2d 913, 915-16 (3rd
Cir. 1980), the respondent maintains that in order to preempt
OSHA's jurisdiction, MSHA must specifically show that it has
exercised its authority by promulgating regulatio'ns in the
disputed area, and that these 'Concurrent regulations cover
specific "working conditions" purportedly within OSHA's
jurisdiction.
The respondent asserts that a review of the regulatory
history regarding the power plant in question fails to
demonstrate that the Secretary of Labor has consistently and
unequivocally exercised authority under MSHA. The respondent
points out that even if one were to presume that MSHA has
promulgated regulations which apply to its operations, in the
totality of the circumstances existing at the time the subject
citations and orders were issued, it could not reasonably have
been known that it was subject to regulation under MSHA. In
support of its positionu the respondent cites the following:
~0

The April 17, 1979u MSHA OSHA Interagency
Agreementr drawn up to apprise facilities of
the limits of MSHA jurisdiction, cited .
facilities closely related to traditional
mining activities as examples of facilities
included within MSHA jurisdiction, and the
issue of jurisdiction over coal handling at
electric plants was not specifically
addressed.

2.

In a November 29, 1985, Motion to Dismiss
filed with the Commission in Utility Fuels,
Inc., Docket No. CENT 85-89, Counsel for the
Secretary represented that:
"MSHA traditionally has not inspected power
plants.
Although the Secretary is not able
to cite a particular memorandum incorporating
this policy, MSHA and its predecessors have

2049

consistently found the production of power to
be outside the jurisdiction of the agency.
MSHA has taken into account that a portion of
the process utilized to produce electric
power from coal requires handling and
processing coal but has determined that those
activities are subsumed in the specialized
process utilized to produce electric power
and that the power plant process is more
feasibility regulated by OSHA." 969 F.2d
1501, 1515 (3d. Cir. 1992).
3.

on January 31, 1989, OSHA issued proposed
Rule 29 C.F.R.1910, relating to Electric
Power Generation, Transmission, Distribution
and Electric Protective Equipment. In the
proposed Rule, OSHA stated that the rule was
intended to cover work practices at "[f)uel
and ash handling and.processing installations
such as coal conveyors and crushers." 54 Fed.
Reg. 4973-5024. (Jan. 31, 1989).

4.

on January 28, 1989, at oral argument in
Westwood Energy Properties v. Secretary of
Labor, MSHA, 11 FMSHRC 2408 (Dec. 1989},
counsel for the Secretary stated that coal
consumers such as steel mills and aluminum
plants may be subject to the Mine Act
jurisdiction if they engage in coal
processing activities. However, even though
Westwood did engage in such activities, MSHA
settled the case and declined to assert
jurisdiction. (MSHA has refused to settle
the present dispute in a similar manner.)

5.

During construction of the plant in question
in these proceedings, plant officials met
with OSHA representatives to discuss the
functions of plant and compliance with
applicable OSHA regulations.

6.

The plant in question in these proceedings
was constructed in compliance with OHSA
standards and specifications, and OSHA
asserted jurisdiction over the plant by
conducting inspections.

7.

In August, 1991, MSHA inspected the dozer
trap and portion of the conveyor system which
is located on Island creek Coal Company's
property for the first time. At that time,
the dozer and the conveyor system were being

2050

operated by Wiley Construction Incorporated.
This inspection was the result of an
individual inspector's decision to carry out
the inspection after having being asked about
it while inspecting the North Branch Mine,
and it was not the result of any Secretarial
policy decision, nor the result of any
MSHA/OSHA agreement at the District Manager
level pursuant to the Interagency Agreement,
nor the result of any decision by the MSHA
District Manager that such an inspection was
within MSHA's jurisdiction.
8.

on September 5, 1991, counsel for North
Branch Partners wrote to OSHA's Area Director
requesting that a jurisdictional
determination be made pursuant to the
MSHA/OSHA Agreement that OSHA had inspection
and enforcement jurisdiction over the power
plant in question. A response was received
on April 8, 1992, indicating that both MSHA
and OSHA would have jurisdiction over the
power plant and that MSHA's jurisdiction
would stop at the property line. The
respondent does not believe that the OSHA
response was a definitive response to
counsel's inquiry as contemplated by the
OSHA/MSHA Interagency Agreement.

9.

In between the time of the requested OSHA
determination noted in paragraph eight (8),
and the response thereto, MSHA again
inspected the power plant's dozer hopper and
the portion of the conveyor system located on
Island Creek property, and one citation and
four orders were issued by MSHA on February
26, and 27, 1992.

lOo

At the time the subject citations and orders
were issued by MSHA, no official Department
of Labor policy existed which assigned coal
handling and processing activities undertaken
by an electric utility to MSHA's
jurisdictiono In fact, the inspectors who
actually issued the citations and orders were
and are themselves unsure of the limits of
their jurisdiction, as evidence by the fact
that their inspections stopped at what they
perceived to be the property line even though
the coal handling and processing activities
undertaken above the property line were

2051

essentially the same as those undertaken
below the property line.
11.

Before the last two orders which are at issue
in these proceedings were issued on May 12,
1992, and August 27, 1992, respondent's
counsel specifically requested counsel for
the Secretary to apprise it of the status of
interagency negotiations regarding whether
MSHA or OSHA would have jurisdiction over the
operations conducted by the respondent •
Such information was sought through the
discovery process in this case, and the
Secretary objected, based on a "interagency
predecisional deliberative process
privilege." The respondent concludes that
the Department of Labor had not (and still
has not) made up its own mind which agency,
MSHA or OSHA, should.regulate the activities
of the respondent.

12.

The respondent points out that while
insisting that it has jurisdiction over the
coal handling processes and the conveyance of
coal at the plant in question, MSHA has not
asserted jurisdiction over similar operations
which are regulated by OSHA. As an example,
the respondent asserts that similar coal
handling and conveyor processes and
procedures at the AES Beaver Valley Power
Plant (as documented by a videotape, Exhibit
F)u are regulated entirely by OSHA and not
MSHA.

The respondent also cites the following relevant deposition
testimony of MSHA'S inspectors: (1) Inspector Darios' admission
that MSHA does not inspect power plants but does inspect the
conveyance system that transport coal to some power plants; (2)
Inspector Ryanvs admission that MSHA inspects coal delivery
processes going to the Mt. Storm Power Plant, but asserts no
jurisdiction once the coal is delivered; (3) Inspector George's
admission that he had never been in a power plant until the day
prior to his deposition when he toured the plant in question in
these proceedings, and his belief that MSHA has a duty to inspect
any coal handling or conveyance procedures that are similar to
those at the plant; and (4) Inspector Fetty's admission that he
had never inspected any power plant previous to his inspections
in these cases, and that his prior power plant inspections were
of the systems that delivered the coal to the plant.
The respondent believes that it has been given conflicting
signals about its obligations under the Mine Act, and it

2052

concludes that the evidence does not demonstrate that it knew
when the citations and orders were issued that its operations
were subject to MSHA citation. Further, since the Secretary has
failed to issue the findings of his interagency negotiations with
respect to MSHA/OSHA jurisdiction, the respondent concludes that
"the regulatory confusion highlighted by this case has yet to be
resolved". The respondent further concludes that the Secretary's
position in these proceedings is unreasonable in that it leaves
the plant operator in the position of being required to guess
what the Secretary's regulatory position will be on any given
day, and that position, may, in fact, vary in different areas of
its operation.
The respondent further contends that overlapping authority
by MSHA and OSHA at the plant would result in inconsistent
standards mandating significant differences in the design of
equipment, and employee work safety rules and training. Under
the circumstances, and assuming that MSHA has jurisdiction, the
respondent suggests that before any citations andjor orders can
be upheld, the Secretary must provide a clear statement regarding
the jurisdictional limits for prospective enforcement. In
support of this position, the respondent cites Air Products and
Chemicals, Inc., supra, where Judge Melick vacated a citation
because the Secretary failed to clearly designate whether MSHA or
OSHA should exercise regulatory authority.
In conclusion, the respondent acknowledges that deference is
to be accorded interpretations by the agency charged with
enforcing a law. However, in the instant proceedings, the
respondent takes the position that the Secretary is not entitled
to such deference because his attempts to assert jurisdiction
over electric power generating plants, or to put the operators of
such facilities on notice of liability under the Mine Act, did
not occur until the late 198Qis, well after the 1978 effective
date of the Act. Further, the respondent believes that it is
clear from the record in these proceedings that the first efforts
toward inspecting its facilities came from a single inspector,
and subsequently his District Manager in 1991, and there is no
indication that their efforts represent the Secretary of Labor 6 s
interpretation of the Act. Because the Secretary of Labor's
interpretations are both late in coming and inconsistent, the
respondent asserts that any deference that would ordinarily be
due the Secretary in interpreting the Act is not appropriate in
this instance. Accordingly, the respondent suggests that even
assuming that Mine Act jurisdiction attaches, the citations and
orders should nonetheless be vacated.

2053

Findings and Conclusions
The Jurisdictional Question
These proceedings are the result of MSHA's inspection of
that portion of the gob conveyor belt that extends approximately
300 to 500 feet on to the North Branch Mine and preparation plant
owned by Island Creek Coal Company and operated by its affiliate,
the Laurel Run Mining Company. Although the respondent asserts
that the mine and preparation plant are no longer in operation,
it is undisputed that the mine was operational at the time the
MSHA inspectors conducted their inspections and issued the
violations. The mining operation included the aforesaid portion
of the belt, a preparation plant, and the refuse and gob pile,
all of which were within the confines of the mine, and not on
property owned by the respondent or the owners and operators of
the power plant.
It does not appear from the record before me that the
respondent has any ownership interest in the power plant, plant
equipment, the conveyor belt, or the gob that is transported from
the North Branch Mine gob pile to the power plant site. Based on
the available information, including the undisputed facts, the
respondent has a continuing services agreement with NB Partners
Ltd., the partnership entity that constructed and manages the
power plant, to provide the labor and material for operating the
plant and servicing and maintaining the belt conveyor system.
The respondent has approximately 150 similar service contracts
worldwide. The Island creek Coal Company, the Laurel Run Mining
Company, and NB Partners Ltd., are not parties in these
proceedings, and the civil penalty proceedings were initiated
against the respondent United Energy Services, Inc.
Section 4 of the Mine Act provides as follows:
Each coal or
other mine, the products of which enter commerce, or the
operations or products of which affect commerce, and each
operator of such mine, and every miner in such mine shall be
subject to the provisions of this Act.
Section 3(d) of the Act defines 11 operator 11 as "any owner,
lessee, or other person who operates, controls, or superv1sors a
coal or other mine or any independent contractor performing
services or construction at such mine."
(Emphasis added).
MSHA's Independent Contractor regulations, which provide
certain requirements and procedures for contractors to obtain
MSHA identification numbers, Part 45, Title 30, Code of Federal
Regulations, section 45.1 et seq., defines an "independent
contractor" as follows at section 45.2(c):
"'Independent
Contractor' means any person, partnership, corporation,

2054

subsidiary of a corporation, firm, association or other
organization that contracts to perform services or construction
at a mine; * * *"
The Commission's decision in Secretary of Labor, MSHA, v.
Bulk Transportation Services, Inc., 13 FMSHRC 1354, 1357
(September 1991), summarizes the basis for coverage of
independent contractors under the Act.
Section J(d) of the Mine Act expanded the definition of
"operator" previously contained in the Federal coal
Mine Health and Safety Act of 1969, 30 u.s.c. § 801 et
seq.
(1976)
("Coal Act"), to include "any independent
contractor performing services or construction at such
mine." The legislative history of the Mine Act
demonstrates that the goal of Congress in expanding the
definition of "operator" was to broaden the enforcement
power of the Secretary to reach a wide range of
independent contractors,-not just owners and leases.
The Report of the Senate Human Resources Committee
explained that the definition of operator was expanded
in order to "include individuals of firms who are • • •
engaged in construction at such mine, or who may be,
under contract or otherwise, engaged in the extraction
process • • • • " S. Rep. No. 181, 95th Cong., 1st Sess.
14 (1977), reprinted in Senate Subcommittee on Labor of
the Committee on Human Resources, 95th Cong., 2nd Sess.
Legislative History of the Federal Mine Safety and
Health Acto 1977, at 602 (1978) (Legis. History.")
The Conference Report likewise explained that the
expanded definition "was intended to permit
enforcement 11 of the [Mine] Act against independent
contractors q1 performing services or construction and
ogwho may have a continuing presence at the mine. "
s. Conf. Rep. No. 461, 95th Cong. 1st Sess. 37 (1977),
reprinted in Legis. Hist. at 1315. The Commission has
consistently recognized that the inclusion of
independent contractors in the statutory definition
reflects a Congressional purpose to subject such
contractors to direct MSHA enforcement under the Mine
Act.
[Citation omitted].
In otis Elevator Company, (Otis I), 11 FMSHRC 1896 (October
1989), and Otis Elevator Company, (Otis II), 11 FMSHRC 1918
(October 1989) 1 aff'd, 921 F.2d 1285 (D.C. Cir. 1990), the
Commission affirmed two decisions by the presiding Judges holding
that an elevator service company that inspected, serviced, and
maintained a mine elevator under a contract with the mine
operator was an independent contractor "operator" subject to the
Act and to MSHA's enforcement jurisdiction. The Commission

2055

affirmed the Judges' findings that otis had a continuing,
regular, and substantial presence at the mine site performing
services on an elevator which was a key facility and essential
ingredient involved in the coal extraction process. In making
its determination, the Commission reviewed the case laws
regarding independent contractors, including National Indus, Sand
Ass'n v. Marshall, 601 F.2d 289 (3rd Cir. 1979), and Old Dominion
Power Co. v. Secretary of Labor, 772 F.2d 92 (4th Cir.), relied
on the expanded definition of "operator" found in the Act, and
examined the independent contractor's proximity to the extraction
process and the extent of its presence at the mine to determine
whether the independent contractor was an operator under the Act.
This same analysis is relevant and appropriate in these
proceedings.
I conclude and find that the operations taking place at the
North Branch Mine property, when the violations were issued,
including the mine preparation plant and refuse or gob pile,
constitute a "coal or other mine" as that term is defined in
section 3(h) of the Act. Secretary of Labor, MSHA v. Westwood
Energy Properties, supra; Consolidation Coal Co. v. FMSHRC, 3 BNA
MSHC 2135 (4th Cir. 1986). Respondent's material handling
supervisor James Bowman, confirmed that the gob that is
transported to the power plant over the conveyor belt system is a
waste product from the coal (Deposition, Tr. 91). Plant Manager
Robert Seavey, who is employed by the respondent, acknowledged
that the "mine extraction" process takes place at the North
Branch mining facility, and that the gob, or refuse, is the byproduct of the mined coal after it has been processed through the
mine preparation plant, and that the respondent accepts the gob
or refuse material, from Island Creek Coal Company (Deposition,
Tr. 44P 54u 59)

o

The undisputed facts reflect that the gob that is
transported by the conveyor belt system to the power plant is the
product of coal mining which has taken place at the North Branch
Mine. After the sale of the marketable mined coal, the remainder
transported to the mine refuse pile from the mine preparation
plant. The gob is sold to NB Partners Ltd. by Laurel Creek
Mining Company, and it must meet certain essential contract
specifications. The bulldozers used at the gob pile to
facilitate the loading of the gob onto the conveyor belt for
transportation to the power plant are owned by either island
Creek or Laurel Run, and the bulldozer operators are employees of
Laurel Run.
According to Mr. Seavy, the respondent entered into the
services agreement in the fall of 1988, had employees in place at
the facility in the fall of 1989, and that substantial completion
of the plant took place in late spring of 1991, when the conveyor
belt system began transporting the gob from the pile to the
plant.
The gob pile extends for a distance of one mile, and it

2056

is estimated that the conveyor belt system will supply the power
plant for at least the next ten years. The gob is provided
exclusively to the power plant for its use in generating
electricity, and the exclusive means of transporting the gob is
by the conveyor system in question.
Mr. Seavy's deposition testimony confirms that the
respondent maintains and services the conveyor belt system
pursuant to the continuing services agreement with NB Partners
Ltd. {Tr. 16-17). Although Mr. Seavey denied an contractual
relationship between the respondent and owners and operators of
the North Branch Mine (Island Creek and Laurel Run), he testified
that the respondent is authorized to operate the conveyor belt on
Island Creek's property as part of the continuing services
agreement. Although "he's been told 11 that an easement has been
granted, he has never seen it in writing (Tr. 21-22).
The deposition testimony of respondent's material handling
supervisor, James Bowman, whose duties include the supervision of
sixteen (16) material handlers employed by the respondent,
establishes that these employees perform maintenance on the belt
conveyor and associated equipment, such as the dozer trap, on a
regular basis, and that the work includes the greasing of
bearings and belt conveyor rollers, and making repairs to the
belt as necessary (Tr. 23, 60, 62, 90). Mr. Bowman testified
that he visually observes the dozer trap door once every two
weeks, that at least one or two employees work in that area, and
they would observe the trap door every day, and that all of the
16 employees working for him take turns working at the dozer
feeder and trap areas (Tr. 28-30). He confirmed that the
respondent's employees clean up the spills from the conveyor belt
at the refuse pile area (Tr. 64). He also confirmed that as the
gob material is used up as gob feeding is taking place at the
bottom of the gob pile, the dozer trap will be moved up the
conveyor line, and it will eventually reach the power plant
property line in approximately 10 years (Tr. 88-98}.
In view of the foregoing, I conclude and find that at the
time the violations were issued in these cases, the respondent
had a continuing presence on the North Branch Mine property
performing services at that mine. Although the respondent's
presence at the mine was by virtue of its service contract with
NB Partners, Ltd., rather than Island Creek or Laurel Run Mining
Companies, the owners and operators of the mine, I find nothing
to rebut the strong inference that the respondent's presence on
mine property had the approval of Island Creek and Laurel Run.
Indeed, the additional posthearing discovery by the parties
reflected the existence of an unsigned easement agreement between
Laurel Run and NB Partners, LTD., which was apparently not
adopted in lieu of the services agreement. In any event,
notwithstanding the absence of any contractual relationship
between the respondent and Laurel Run or Island Creek, I still

2057

conclude and find that the respondent had a continuing presence
at the North Branch Mine performing services at that mine within
the meaning of section J(d) of the Act, at the time the
violations were issued.
In addition to the respondent's continuing presence at the
North Branch Mine, I conclude and find that there is a sufficient
nexus between the work and services performed by the respondent
with respect to the operation of the conveyor belt system,
including the servicing, repairing, cleaning, and maintaining the
belt system, and the coal extraction and coal processing and
stockpiling that have taken place at the mine preparation plant,
and the gob refuse pile. The services performed by the
respondent are essential, not only to the power plant that
depends on a steady supply of gob to fuel its boilers, but they
are also essential to, and closely connected with, the extraction
of the coal that is processed through the mine preparation plant
and rendered into a saleable product that produced income for
Island Creek and Laurel Run. Since the power plant is the only
customer for the gob, and is dependent on delivery by the
conveyor belt system in question, the exclusive means of
transporting the gob from the mine refuse pile to the power
plant, it is essential that the conveyor belt system be
maintained in serviceable condition in order to insure a regular
supply of fuel for the power plant. Without the delivery of a
steady supply of fuel over a dependable and well-maintained belt
conveyor system, it seems obvious to me that the power plant will
not stay in business very long, and Island Creek and Laurel Run
could conceivably lose its sole customer to whom it sells its
gob.
On the basis of the foregoing findings and conclusions, and
after careful consideration of the arguments advanced by the
partiesu I conclude and find that at the time the violations were
issued to the respondent at the North Branch Mine property, the
respondent was an independent contractor performing services at
that mine pursuant to section 3(d) of the Act, and it was
accordingly subject to the jurisdiction of the Act as well as the
inspection and enforcement jurisdiction of MSHA while performing
these services on mine property.
The respondent's suggestion that MSHA is confused and has
not yet made up its mind as to where its jurisdiction lies is not
well taken, and it is rejected.
I take note of the fact that in
response to an inquiry of June 25, 1992, from the respondent's
plant manager Robert E. Seavey, MSHA's District Manager,
Ronald L. Keaton, advised Mr. Seavey by letter dated July 13,
1992, that nMSHA's position is that you are under our
jurisdiction any time that you are working on coal mine
property".

2058

I have carefully reviewed the depositions of MSHA Inspectors
Darios, Fetty, Wilt, and George, and I find no evidence of any
confusion on their part with respect to the areas they were to
inspect while at the North Branch Mine. Although Inspector
Dartos mentioned some confusion created by information supplied
by an Island Creek employee as to whether or not the conveyor
belt was on mine property, and Inspector Fetty mentioned a
"controversy" generated by his inability to obtain any definitive
information from Island Creek as to who was in charge of the
refuse pile, all of the inspectors apparently knew that their
inspections were to be confined to mine property and that they
were not to venture beyond a certain property ''boundary line"
delineated by a foot bridge which marked the dividing line
between mine property and power plant property. Further, the
depositions of Supervisory Inspector Barry Ryan and Inspector
Wilt, the individual who initially inspected the refuse area,
reflects that they were not confused as to the metes and bounds
of their inspection and enforcement jurisdiction ~n mine
property. There may have been some confusion as to where mine
property may have begun and ended, who owned the equipment, or
whether a piece of equipment was on or off mine property, but I
find no confusion about the fact that MSHA's inspection
jurisdiction terminated at the power plant property line and that
this was clear to the inspectors, as well as to the respondent.
The respondent's position seems to be that the entire belt
conveyor system, as one self-contained piece of equipment, is
part and parcel of the power plant and not subject to MSHA's
inspection and enforcement jurisdiction. Such a notion is
rejected. Although MSHA's inspectors have inspected the North
Branch Mining operations, as well as that portion of the conveyor
belt located on mine property, the inspections have stopped short
of the point where the belt bisects the property line separating
mine property and the power plant property. Furtheru the issue
as I view itu is whether or not the respondent, as an independent
contractor 11 operator" pursuant to the act, may be held
accountable and liable or violations and penalty assessments for
violations occurring in the course of its contractor work
performed on mine property. I have concluded that the answer to
this question is "Yes 11 •
The respondent's assertion that MSHA has not established
that it has preempted OSHA's jurisdiction is not well taken and
it is rejected.
It seems clear to me that MSHA has always
exercised its inspection and enforcement jurisdiction over all
mining activities taking place at the North Branch Mine, and has
issued violations to Island Creek Coal Company as well as a
previous contractor (Wiley Construction Co.) for violations on
mine property. It also seems clear to me that MSHA exercised its
inspection and enforcement jurisdiction in these proceedings when
it issued the violations for conditions observed by the
inspectors on mine property and that it is seeking civil penalty

2059

assessments for those violations, rather than any violative
conditions observed and cited on power plant property.
Insofar as the power plant property is concerned,
particularly with respect to whether MSHA or OSHA will exercise
jurisdiction, the record reflects that negotiations are still
taking place pursuant to the OSHA-MSHA Interagency Agreement, and
the petitioner asserts that it has specifically refrained from
exercising jurisdiction over any power plant facilities on plant
property until a decision is reached pursuant to the Agreement.
Pending that determination, the petitioner concludes that the
facts presented in these proceedings establish that the cited
violative conditions were and are under MSHA's jurisdiction, and
that the respondent should be held accountable and liable for the
violations and the proposed civil penalty assessments for those
violations.
The petitioner asserts that in addition to being an
independent contractor performing services at a mine, the
respondent is also a mine operator in its own right pursuant to
the Act because it operates, controls, and supervises the coal
mine operations of the power plant at the North Branch Mine
Property. The petitioner views that portion of the conveyor belt
located on the North Branch Mine property, together with the
remainder of the belt conveyor system transporting the gob to the
power plant, and the associated equipment used to process the gob
as it moves on its way to the power plant along the conveyor belt
system, to be a coal mine operation that provided the
jurisdictional basis for the issuance of the violations.
It would appear from the facts in these proceedings that the
processing and treatment of the gob material that is transported
from the North Branch mining operation over the conveyor belt
system to the power plant is subjected to the same type of preburning processes as were presented in the Westwood Energy
Properties and Pennsylvania Electric Company cases, supra.
However, unlike those cases, where the civil penalty proceedings
were initiated against the power plant owners and operators for
violations on plant property, MSHA, in the instant proceedings,
issued the violations for conditions found off power plant
propertyu and has instituted penalty proceedings against the
respondent as an independent contractor and not against
NB Partners Ltd., the power plant owner. Further, although the
respondent suggests that it is an electric utility, I find no
evidence that it has any ownership interest in the power plant or
its equipment, and it would appear that the true ownership of the
utility lies with NB Partner Ltd., or the bank that apparently
holds the mortgage, none of whom are named as parties in these
proceedings. Under these circumstances, I do not find it
appropriate or necessary to expand my jurisdictional finding

2060

beyond my conclusion that the respondent is an independent
contractor subject to the Act and to MSHA's enforcement
jurisdiction.
The Alleged Violations
Docket No. WEVA 92-916
This case concerns a section 104{d) (1) citation and three
section 104(d) (1) orders issued on February 26, 1992, alleging
violations of the e~1ipment guarding requirements found in
mandatory safety standards 30 C.F.R. § 77.400(a), (c), and (d).
In its answer of August 17, 1992, to the petitioner's civil
penalty proposals, the respondent stated that it did not contest
the violations but did contest MSHA's jurisdiction over its
operations. The respondent made the same responses in its
August 17, 1992, replies to the-petitioner's interrogatories.
In its response of August 31, 1992, to the petitioner's
request for an admission that the description of the conditions
or practice upon which the citation and orders are based, as
stated in sections 8 and 15 of the citation and orders
("Condition or Practice" and "Area or Equipment"), are true and
accurate, the respondent replied that it did not contest the
citation or orders and only contested MSHA's enforcement
jurisdiction (Admission No. 12). In response to several requests
for admissions with respect to the inspectors gravity,
negligence, "S&S", and unwarrantable failure findings (Admission
Nos. 13 through 18), the respondent simply incorporated by
reference its response to Admission No. 12, which states that
"United Energy does not contest the citation andjor orders.
United Energy contests MSHA 6 s assertion of jurisdiction."
In a facsimile letter of September 1, 1992, to the
petitioner's counsel regarding the consolidation of Docket
Nos. WEVA 92-916, WEVA 92-961,, and WEVA 92-1045, respondent 1 s
counsel stated part as follows:
This is to memorialize our recent telephone
conversations regarding consolidation of the abovereferenced petitions. You and I have agreed that it is
logical to consolidate the three (3) petitions because
United Energy is contesting jurisdiction rather than
the underlying citations and/or orders. Therefore, I
will file a motion to consolidate as soon as possible.
Also, because the discovery responses in case 961 would
be essentially identical to the responses already made
in case 916, I do not plan to file responses to the
Secretary's First Request for Admissions, Second
Request. for Production or Secretary's Second Set of

2061

Interrogatories in case 961. If you have any
objections to the foregoing, please notify me as soon
as possible.
(emphasis added).
In its April 1, 1993, opposition to the petitioner's summary
judgment motion, the respondent states as follows with respect to
each of the violations:
United Energy does not dispute that on February 26,
1992, three employees of United Energy were shoveling
at the number two gob conveyor belt tailpiece while the
guarding was removed from the tailpiece along the
roadside. Further, United Energy does not dispute MSHA
Inspector Joseph W. Oarios' evaluations as set forth in
blocks 10.A, 10.B and 10.0 and of said citation.
(Citation No. 3120276).
United Energy does not dispute that on February 26,
1992, the rear tailpiece guard of the grizzly tail
pulley operated by United Energy, was not in place and
was exposing the roller or pulley at the rear, with the
rear tailpiece guard lying on the ground behind the
belt assembly.
(Order No. 3120277).
United Energy does not dispute that on February 26,
1992, a side guard of the grizzly belt tail pulley
operated by United Energy was not provided, and was
exposing the roller or pulley at the side. (Order
No. 3120277).
United Energy does not dispute the evaluations of
Inspector Joseph w. Oarios' contained in blocks 10.A,
lO.B, and 10.0 of Order No. 3120277.
United Energy does not dispute that the cover guard for
the grizzly gob feeder chain drive operated by United
Energy was not in place and was exposing the chain
drive sprockets and chain drive located at the rear
side of the grizzly belt assembly near the tailpiece
with the rear tailpiece guard lying on the ground
behind the belt and assembly as set forth in Order
No. 3120278.
United Energy does not dispute the evaluations of MSHA
Inspector Joseph w. Oarios contained in blocks 10.A,
lO.B and 10.0 of Order No. 3120278.
United Energy does not dispute that on February 26,
1992, guarding for Gob Movable 1 conveyor belt take-up
pulley operated by United Energy did not extend a
sufficient distance sufficient to prevent contact by
and/or injury to persons, with the rear side of the

2062

tail pulley at the side being exposed approximately six
(6) inches past the guarding provided and permitting
contact at the pinch point of the roller and belt, as
set forth in Order No. 3120279.
United Energy does not dispute the evaluations of MSHA
Inspector w. Darios contained in blocks 10.A, 10.B and
10.0 of Order No. 3120279.
Despite its statements that it does not dispute the
inspector's gravity findings that there was a reasonable
likelihood of permanently disabling injuries affecting one to
three miners as a result of the cited conditions or practices,
the respondent states that it still disputes the inspector's
"S&S" determinations associated with each of the violations on
the ground that its activities do not constitute "work of
preparing the coal" as contemplated by the Act. The respondent
also disputes the inspector's determinations that· each of the
violations resulted from the respondent's unwarrantable failure
to comply with the cited standards.
Docket No. WEVA 93-97
In this case the respondent is charged with a violation of
MSHA's mandatory training regulation at 30 c.F.R. § 48.25(a),
after MSHA Inspector Kerry L. George determined that material
handler stanley Dragovich, "a new surface miner employed by the
contractor since April 1991 11 , and who was maintaining the
beltlines at the mine site, had not been given training. Citing
section 104(g) (1) of the Act, the inspector ordered the removal
of the cited employee from the mine. The inspector's gravity
findings reflect that an injury was "reasonably likely", that the
injury could reasonably be expected to be "permanently disabling"
and that one (1} person was affected. The inspector concluded
that the cited violation was "significant and substantial" (S&S),
and that it was the result of "high negligence.
In its answer of January 27, 1993, to the petitioner's
proposal for assessment of civil penalty, the respondent admitted
that the cited individual did not have MSHA training, and it
admitted that the order was issued. However, the respondent
specifically stated that it contested the order in its entirety,
as well as the findings and determination of the inspectoro
In a January 27, 1993, motion to consolidate this docket
with Docket Nos. WEVA 92-916, WEVA 92-961, and WEVA 92-1045, the
respondent stated that it did not contest the fact that the order
in question was issued, but that it did contest jurisdiction as
well as the determinations and findings of the inspector.

2063

On March a, 1993, the respondent filed its responses to
certain discovery requests for admissions served by the
petitioner. Requested admission No. a, stated as follows:
The descriptions of the conditions or practices upon
which each of the citation(s) andjor order(s) that are
at issue in this case are based, as set forth in each
of the citation(s) andjor order(s) under Section a,
"Condition or Practice", and Section 15, "Area or
Equipment", are true and accurate.
In its response, the respondent stated as follows:
United Energy admits that Stanley Dragovich was not
given MSHA training. However, United Energy believes
that Mr. Dragovich was adequately trained for his job
at a power plant employee. Further, because United
Energy does not believe that MSHA's assertion of
jurisdiction over this f~~ility is proper, it does not
believe Mr. Dragovitch needed MSHA training. Further,
United Energy states that the facility was built and
has been operated in compliance with OSHA requirements.
Moreover, United Energy asked for an interagency
determination of whether MSHA or OSHA has jurisdiction
over this facility in a September 5, 1991, letter from
its counsel, Ricklin Brown, to Stanley Elliot. (This
letter has previously been provided to the Court an to
counsel MSHA). No definitive response has ever been
received.
In response to certain requests for admissions concerning
the inspector's gravity, "S&S 11 , and "high" negligence findings,
the respondent replied "Denied. See response to Request No. a".
The respondent gave the same answer with respect to Admission
Request No. 14, requesting the respondent to confirm that the
order was the result of an unwarrantable failure. However, I
take note of the fact that the order in question was issued as
a section 104(g) {1) order rather than a section l04(d)
unwarrantable failure order.
In its April 1, 1993, opposition to the petitioner's summary
judgment motion, the respondent does not dispute that the cited
employee, Stanley Dragovich, a material handler in its employ
since Aprilu 1991, was maintaining the belt lines at its
operation without receiving the required MSHA training. However,
the respondent does dispute the inspector's gravity and
negligence findings on the ground that it has consistently
maintained that it is not subject to MSHA's jurisdiction, and
that the cited employee was adequately trained for his job and
has not been injured or suffered any work-related illness.
Further,;notwithstanding the fact that the orderwas not issued
as a section 104(d) unwarrantable failure order, the respondent

2064

denies any unwarrantable failure violation and maintains that it
is insulated from such a finding because of its consistent and
good faith jurisdictional arguments.
In a footnote at page two of it summary judgment motion, the
petitioner asserts that it served its request for admissions on
the respondent within 20 days of the filing of its penalty
assessment proposal as provided for in Commission Rule 29 C.P.R.
§ 2700.55(A), but that the respondent did not respond within the
15 days provided for in Rule 57, 29 C.P.R. § 2700.57. Under the
circumstances, the petitioner asserts that the admissions are
admitted and conclusively established. In support of this
position, the petitioner relies on the procedural regulations at
29 C.P.R. § 18.20(b) and l8.20(e).
The petitioner's reliance on the cited regulations found in
29 C.P.R. § 18.20(b) and 18.20(e), are without merit. Those
regulations apply to matters before that Department of Labor's
Administrative Law Judges and,they are not binding on this
Commission's Judges. Commission Rule 57, which has since been
replaced by Rule 58, 29 C.P.R. § 2700.58(b), effective May 3,
1993, did not provide for adoption of proposed admissions where
the responses are untimely filed. The present Rule 58(b),
authorizes the presiding Judge to order a longer or shorter time
for responding to admissions, and any matter that is in fact
admitted is conclusively established for the purpose of the
pending case unless the Judge, on motion, permits a withdrawal or
amendment of the admission. However, since I find no evidence of
any prejudice to the petitioner because of the late responses by
the respondent, the petitioner's arguments ARE REJECTED, and its
suggestion that its proposed gravity and negligence admissions
should be .deemed to be conclusively established are likewise
REJECTED.
WEVA 92-961
In this case, the respondent was charged with a violation of
MSHA's mandatory training regulation at 30 C.P.R. § 48.25(a), on
February 27, 1992, after MSHA Inspector Phillip Wilt observed
three of the respondent's employees the previous day working near
moving conveyor belts on Island Creek Coal Company property
without first receiving "no less than 24 hours of comprehensive
training"o The inspector considered the cited employees to be "a
hazard to themselves and others", and citing the training
requirements of section 115 of the Act, and section 104(g) (1) of
the Act, he ordered the withdrawal of the three employees (Craig
W. Knotts, Randy Rohrbaugh, and Homer Fletcher). The inspector's
gravity findings reflect that an injury was "reasonably likely",
that the injury could reasonably be expected to be "permanently
disabling", and that three (3) persons were affected. The
inspector also concluded that the cited violation was

"significant and substantial" (S&S), and that it was the result
of "high" negligence.
In its initial answer of August 21, 1992, to the
petitioner's civil penalty proposal, the respondent took the
position that it was an electric utility subject to OSHA, rather
than MSHA, jurisdiction, and stated that "it does not contest the
violation".
In its responses of August 21, 1992, to the petitioner's
initial interrogatories, the respondent stated it intended to
contest MSHA's jurisdiction and did not intend to contest the
citation or order. In response to certain questions concerning
the special "significant and substantial" (S&S) finding
associated with the citation, the respondent answered "N/A". In
responding to the petitioner's discovery requests, the respondent
made the following general statement that is included in all of
its responses in these proceedings:
By responding to the discovery requests, United Energy
does not concede the relevance of any matter at issue
in any of the Secretary's Interrogatories, does not
agree to the admissibility in evidence of any
information or document provided, and expressly
reserves all evidentiary objections to the time of
hearing in this proceeding.
On September 14, 1992, the respondent filed a motion to
consolidate Docket Nos. WEVA 92-916, WEVA 92-961, and
WEVA 92-1045, and stated that although it contested MSHA's
jurisdiction, it did not contest the violations which gave rise
to the proposals for assessment of civil penalties. This
statement was repeated again by the respondent when it filed a
motion on January 8u 1993, to compel the petitioner to answer its
discovery requests and to continue the scheduled hearings.
In its April 1, 1993, opposition to the petitioner's motion
for summary judgment, the respondent states that it does not
dispute that three of its employees, Craig W. Knotts, Randy
Rohrbaugh, and Homer Fletcher, were working near moving belts
which were part of its opertation without receiving MSHA
training.
The respondent disputes the inspector's gravity findings,
and it takes the position that the cited employees have always
been adequately trained for their jobs with the respondent and
have not suffered any job related accidents or injuries despite
working in the cited area for some time before MSHA's inspection.
For these same reasons, the respondent also disputes the
inspector's "high negligence" finding. In addition to its claim
that the employees were trained, the respondent asserts that
since it'believed in good faith that MSHA lacked jurisdiction

2066

over its operations and that MSHA training was not required, it
was not negligent in failing to provide MSHA training for the
cited employees.
The respondent also disputes "the Secretary's assertion that
the violation cited in Order No. 3120293 issued under
section 104(d) of the Mine Act was caused by the unwarrantable
failure" of the respondent to comply with the cited standard.
The Secretary's assertion is erroneous. The disputed order was
not issued pursuant to section 104(d) of the Act, and it is not
an "unwarrantable failure order". The order simply served as the
statutory mechanism for removing the untrained personnel from the
cited mine area, and the petitioner's civil penalty proposal is
based on the alleged violation of the training requirements found
in the cited mandatory regulation at 30 C.P.R. § 48.25(a).
WEVA 92-1045
In this case the respondent is charged with a violation of
mandatory safety standard 30 C.P.R. § 77.502, for failing to
conduct monthly electrical examination of the electrical
components of the belt lines at the refuse pile located on mine
property. The inspector's gravity finding reflects that an
injury was "reasonably likely", that the injury could reasonably
be expected to result in "lost workdays or restricted duty", and
that one (1) person was affected. The inspector concluded that
the violation was "significant and substantial" (S&S}, and that
it was the result of "high" negligence,"unwarrantable failure" by
the respondent.
At page 33 of its Motion for Summary Judgment, the
petitioner states as follows:
As for the question of the validity of the citations
and orders and the correct civil penalty to be applied,
all facts relating to these questions, except for those
arising from Docket No. WEVA 92-1045, were admitted by
the respondent. As for the facts arising from Docket
No. WEVA 92-1045 1 the Respondent's Answer acquiesces in
the facts underlying the order contained therein, with
the motion to consolidate and other documentation
reiterating this agreement. No motion to Amend Answer
having been filed, no facts have been disputed in
Docket No. WEVA 92-1045 other than those regarding
jurisdiction.
In its answer of September 10, 1992, the respondent stated
that it did not contest the violation. However, it challenged
MSHA's jurisdiction, and claimed that it was an electric utility
subject to OSHA jurisdiction. In its subsequently filed motions
for consolidation and enforcement of its discovery requests, the

2067

respondent again stated that it did not dispute the violation
which gave rise to the civil penalty proposal filed by the
petitioner.
In its opposition of April 1, 1993, to the petitioner's
motion for summary judgment, the respondent stated that it does
not dispute that it had not conducted the required MSHA monthly
electrical examination of the electrical components of the belt
lines at its operation. I take note of the fact that the
respondent's statement does not specifically address that portion
of the order which states that the cited belt lines "were on mine
property and were the responsibility of the contractor".
The respondent disputes the inspector's gravity findings.
It also disputes the inspector's "high" negligence and
unwarrantable failure finding on the ground that its consistent
jurisdictional position and good faith belief that it was not
subject to Mine Act jurisdiction insulates it from such findings.
In support of summary judgment in its favor, the petitioner
asserts that except for Docket No. WEVA 92-1045, the respondent
has admitted to all of the facts relating to the validity of the
citations and orders that are in issue in Docket Nos,
WEVA 92-916; WEVA 92-961, and WEVA 93-97. With respect to
WEVA 92-1045, the petitioner maintains that the respondent's
answer and other documentation reflects the respondent's
acquiescence in the facts underlying the order, and that the
respondent has disputed no facts other than those regarding
jurisdiction. The petitioner concludes that there are no genuine
issues of any material facts in any of these cases, except for
disputes regarding the application of the law to these facts, and
that summary judgement is appropriate.
I agree with the petitionerRs position that the respondent
has opted not to contest the conditions or practices cited as
violations of each of the cited mandatory safety standards.
Indeed, it seems clear to me from the pleadings filed in these
matters, including the answers and the discovery responses filed
by the respondent, as well as its admissions filed as part of its
arguments in opposition to the petitioner's summary judgment
motion, that the respondent does to deny the existence of the
conditions or practices cited by the inspectors as violations.
Apart from the respondent's admissions concerning the cited
conditions and practice, I have reviewed and considered the
deposition testimony of the inspectors who issued the violations
in these proceedings. In Docket No. WEVA 92-916, Inspector
Darios testified as to the facts and circumstances that prompted
him to issue the four guarding violations (No. 3120276,
Tr. 56-57, 72-73, 86-87, 89-91; No. 3120277, Tr. 99-104;

2068

No. 3120278, Tr. 108-109; No. 3120279, Tr. 112-113). The cited
mandatory guarding regulations, sections 75.400(a), (c), and (d),
require that tail pulleys and similar exposed moving machine
parts be guarded, that all guards be securely in place while the
machinery is being operated, and that conveyor drive, head, and
tail pulley guards extend a sufficient distance to prevent a
person from reaching behind the guard and becoming caught between
the belt and the pulley.
In Docket No. WEVA 93-97, Inspector George testified that he
observed Mr. Dragovich arrive at the gob area in a truck owned by
"the power plant", and he determined that Mr. Dragovich came to
the gob area to inspect the conveyor belt that was on mine
property. Mr. Dragovich informed Mr. George that he worked for
the respondent, and when asked about his training, Mr. Dragovich
informed Mr. George that he last received training when he worked
for Island Creek as an underground miner (Tr. 73-74). Since
Mr. George found no evidence that Mr. Dragovich had received any
MSHA surface mining training, he issued the order in question
(Tr. 83-84) .
Supervisory Inspector Ryan, who accompanied Mr. George
during his inspection, testified that contractor personnel who
work in surface areas of underground mines for any period in
excess of five days are required to have MSHA comprehensive
training. If such employees had worked underground, they would
have to receive 40 hours of comprehensive training, or hazard
training (Tr. 35, 86, 89). Mr. Ryan testified that he was with
Inspector George when he issued the training violation concerning
Mr. Dragovich. Mr. Ryan stated that Inspector George observed
Mr. Dragovich at the gob area, and asked him if he had any
training. Mr. Dragovich informed Mr. George that he had
previously worked for Island Creek and had some training in that
jobu but had not received any minersP training e~since
approximately two years ago" (Tr. 107). Island Creek then
summoned Mr. Bowman to the area, and he could produce no training
records for Mr. Dragovich (Tr. 107).
In Docket No. WEVA 92-1045, Inspector George testified that
after conducting an inspection of Island Creek's preparation
plant, its heavy equipment, the railroad, and the gob pile, he
asked to see the electrical examination records, but that the
respondent 1 s representative, Jim Bowman, and Island Creek's
representative, Tom Lobb, could not produce them {Tr. 43).
Mr. George stated that Mr. Bowman contended that MSHA had no
jurisdiction over the respondent, and confirmed that the
electrical examinations were not being conducted (Tr. 51). The
cited mandatory regulation section 77.502, requires frequent
examination of electric equipment, and record keeping of such
examinations.

2069

In Docket No. WEVA 92-961, Inspector Wilt testified that in
the course of an inspection at the mine site on February 27,
1992, he issued citation No. 3120293 after determining that three
of the respondent's employees working near the conveyor belt on
mine property had not received the required MSHA training.
Mr. Wilt confirmed that these were the same three employees cited
by Inspector Darios the previous day, February 26, for shovelling
at the belt tailpiece with the guarding removed {Tr. 33-34).
Mr. Wilt stated that he issued the violation after the
respondent's representative, Mr. Bowman, could not produce any
training records for the employees in question (Tr. 36).
Mr. Wilt also considered the fact MSHA training was required for
any contractor employee doing work on Island Creek's mine
property {Tr. 37).
Inspector George testified that at the time of his May 12,
1992, inspection, he asked Mr. Bowman about the training
violation previously issued by Inspector Wilt, and inquired as to
whether it had been abated. M.r. Bowman informed him that the
respondent's management was of the view that it did not have to
provide MSHA training, and that the prior order issued by Mr.
Wilt had not been abated. (Tr. 54-55). Mr. George then informed
Mr. Bowman that until the cited personnel were trained they could
not work in the area, and Mr. Bowman made no comment other than
to indicate that "he was not complying because there was a
dispute over jurisdiction" (Tr. 56).
In view of the foregoing, I conclude and find that the
evidence and testimony of record in these proceedings establishes
that the cited conditions or practices as described by the
inspectors on the face of the citation and orders in question
constitute violations of the cited MSHA mandatory safety and
training regulations.
Accordingly, the violations ARE AFFIRMED.
With respect to the nsignificant and substantial" (S&S), and
unwarrantable failure" issues presented in these cases, I reject
the petitioner's suggestions that the respondent has capitulated
on all of these issues and that its admissions with respect to
the citation and orders should be adopted as absolute proof that
all of the violations were significant and substantial and
resulted from an unwarrantable failure on the part of the
respondent to comply with the cited mandatory standards.
Having carefully reviewed all of the pleadings filed in these
proceedings, I cannot conclude that the respondent intended to
waive its right to litigate the special findings made by the
inspectors with respect to the violations.
91

2070

The Unwarrantable Failure Issues
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:
In light of the foregoing, we hold that an inspector
should find that a violation of any mandatory standard
was caused by an unwarrantable failure to comply with
such standard if he determines that the operator
involved has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of a lack
of due diligence, or because of indifference or lack of
reasonable care.
In several recent decisions concerning the interpretation
and application of the term ''unwarrantable failure," the
Commission further refined and explained this term, and concluded
that it means "aggravated conduct, constituting more than
ordinary negligence, by a mine operator in relation to a
violation of the Act." Energy Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987); Secretary of Labor v. Rushton Mining Company,
10 FMSHRC 249 (March 1988). Referring to its prior holding in
the Emery Mining case, the Commission stated as follows in
Youghiogheny & Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is conduct that
is "inadvertent," "thoughtless" or "inattentive,"
unwarrantable conduct is conduct that is described as
9
11
' not justifiable" or
inexcusable." Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more that ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.
In Emery Mining, the Commission explained the meaning of the
phrase 9'unwarrantable failuren as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of the
phrase "unwarrantable failure. 11 "Unwarrantable" is
defined as "not justifiable" or "inexcusable."
11
Failure 11 is defined as 11 neglect of an assigned,
expected, or appropriate action." Webster's Third New
International Dictionary !Unabridged) 2514, 814 (1971)
("Webster's"). Comparatively, negligence is the
failure to use such care as a reasonably prudent and
careful person would use and is characterized by
11
inadvertence, 11 "thoughtlessness," and "inattention. 11

2071

Black's Law Dictionary 930-31 (5th ed. 1979). Conduct
that is not justifiable and inexcusable is the result
of more than inadvertence, thoughtlessness, or
inattention. * * *
Docket Nos. WEVA 92-961 and WEVA 93-97
As noted earlier, the orders issued in these cases are not
unwarrantable failure orders pursuant to section 104(d) of the
Act, and the arguments advanced by the parties on this issue are
irrelevant and inapplicable.
Docket No. WEVA 92-916
Inspector Darios testified by deposition that in the course
of his inspection on February 26, 1992, he spoke with fellow
inspector Phillip Wilt who informed him that he had issued
citations and orders for miners shoveling around the belt in
different areas with the guards removed during prior inspections.
Mr. Darios confirmed that the prior citations and orders were
issued to Island Creek Coal Company and that Mr. Wilt had spoken
to Island Creek's management about the matter (Tr. 73).
Mr. Darios also confirmed that no representative of the
respondent accompanied him during his inspection on February 26,
and that the events of that day were "really vague" (Tr. 84-85).
Mr. Darios confirmed that he observed the three cited
employees (3120276) simply drive up and begin shoveling after
removing the side belt guard, and that this activity lasted
approximat~ly five minutes (Tr. 89).
He concluded that this was
a "common practice" because of "the way that it was performed"
and the number of citations and orders previously issued by
Mro Wilt (Tro 92). He explained his "high negligence" and
unwarrantable failure findings as follows at (Tr. 93-96):
A. When management is aware -- been made aware of
hazardous conditions, they are to take action to
correct, prevent, or eliminate those hazardous
conditions or practices from their mining operation.
From the apparent attitude, just perceived, of these
miners just driving up and pulling off a guard and
shoveling, it was like there was nothing wrong with it.
That was part of management's accepted practice.

*

*

*

*

*

*

A. Where serious hazards are involved, and it becomes,
in my opinion, blatant disregard for the safety and
health of miners, then there is a high degree of
negligence. That is strictly my opinion.

2072

*

Mr. Darios did not know whether or not the respondent in
these proceedings had been previously cited by Inspector Wilt.
Mr. Darios stated that it was his understanding that the
management of the Wiley Construction Company and the respondent's
management had changed in name only, but he could not recall who
informed him of this (Tr~ 94}. He confirmed that a meeting was
held with Island Creek's management when the citation was abated,
and that the citation was subsequently changed to reflect that it
was served on the respondent rather than Island Creek.
Mr. Oarios also commented that the contractor management system
was "a mess" and that "I can't understand the whole framework of
this management system (Tr. 97).
With regard to the cited unguarded grizzly tail pulley order
(3120277), Mr. Darios stated that he based his order on the fact
that Mr. Wilt had earlier informed him that people were removing
guards and shovelling the belts and that "it was becoming more
and more evident at that time that people were not having any
regard to guarding belts on this particular belt line, or areas
of the pulleys or drives" (Tr. 100). Mr. Darios did not know
whether or not any management representative of the respondent
was present after he issued his initial citation and continued
his inspection (Tr. 100). Mr. Darios also confirmed that no one
was working in the immediate cited area, and he could nor recall
observing anyone working in that area earlier in the day
(Tr. 102).
Mr. Darios stated that he based his section 104(d) (1) order
on the previously issued section 104(d)(1) citation and his
belief that routine daily safety checks of the belt equipment
were not being made so that conditions such as those he observed
could be discovered and corrected (Tr. 105). When asked to
explain the meaning of vtthe unwarrantable series"u Mr. Darios
responded "Knew, or should-have-known of conditions by the
operator" (Tr. 106). Mr. Darios confirmed that "management"
assigned someone to replace the guards in order to.abate the
order, but he could not recall whether an Island Creek employee
or an employee of the respondent replaced the guards (Tr. 107)"
With regard to the order citing the unguarded grizzly feeder
chain drive sprockets (3120278), Mr. Darios stated that he did
not clearly remember the conditions, but after referring to his
notes, he confirmed that the guard was laying on the ground
beside the chain drive area (Tr. 108). He based his "high
negligence" finding on "repeated findings of guards being removed
or missing, and not in position", and he stated that "this refers
back to the 104(d) (1) citation" (Tr. 110).
With regard to the order citing a conveyor belt pulley that
was not sufficiently extended to prevent contact with persons
(31202279), Mr. Darios stated that "based on the number of
violations that I had already issued previously on guarding that

2073

day, I was almost to the point of frustration and ridiculousness,
as far as I was concerned, to the extent that the guarding was
being let go. And I felt that it was very unwarrantable on
management's part to permit that" (Tr. 113).
Inspector Edwin Fetty's deposition testimony reflects that
he began an electrical inspection at Island Creek's mine site in
August, 1991. Mr. Fetty stated that on August 5, 1991, he was at
the mine with Inspector Wilt and they met with Jim Lemons, Island
Creek's maintenance and electrical supervisor, and that Mr. Wilt
and Mr. Lemons accomp'anied him during his inspection on that day
(Tr. 13). Mr. Fetty stated that he issued a belt citation
(3316749) that day to Island Creek, but that someone mentioned
that Wiley Construction was the responsible party {Tr. 17-19).
Mr. Fetty stated that the citation was issued for failing to
replace a belt drive unit guard that had been removed (Tr. 23}.
Supervisory Inspector Barry Ryan testified by deposition
that Island creek Coal Company had received unwarrantable failure
citations prior to Inspector 'Wilt's encounter with contractors at
Island Creek's gob pile on July 30, 1991 (Tr. 49, 52). Mr. Ryan
alluded to a conference held by Mr. Wilt with Island Creek
concerning MSHA's Repeat Violation Reduction Program (RVRP)
(Tr. 52). Mr. Ryan stated that he and Mr. Wilt met with Island
Creek Coal personnel and "some contract people from Wiley
Construction" at the refuse pile on July 30, 1991, and he
confirmed that they discussed MSHA's jurisdiction of the conveyor
belt line and an imminent danger order that Mr. Wilt had issued
(Tr. 57-60). Mr. Ryan stated that he was informed that Wiley
Construction operated the belt line at that time (Tr. 63).
Mr. Ryan stated that he and Mr. Wilt returned to the site on
August 5, 1991, for additional inspections, and Inspector Fetty
was also there for an electrical inspection (Tr. 77). Mr. Ryan
confirmed that Mro Wilt issued several citations to Island Creek
Coal Company, and that several citations were subsequently
modified to show Wiley Construction as the responsible party
(Tr. 80). Mr. Ryan confirmed that discussions were held on
August 5u 1991, with Wiley Construction's maintenance foreman
concerning the guarding violations issued by Inspector Wilt
(Tro 83-84). Mr. Ryan stated that Island creek repeatedly
maintained that Wiley Construction was responsible for
maintaining the conveyor belts, and that he observed Island creek
and Wiley Construction personnel working together trying to
locate a belt guard that had been removed (Tr. 90).
Inspector Wilt testified that he initially inspected Island
Creek's North Branch mining operations on July 30, 1991, and
issued an imminent danger order and citation to Island Creek
after observing a bulldozer operating too close to a backhoe
while pushing material on the gob pile. Mr. Wilt observed "a
contractor's employee" working in the area where the backhoe was

2074

loading material, but he didn't know the identity of the
contractor. He could not recall any hazards associated with the
work being performed by the contractor employee, and he issued no
violations to the contractor that day. He also observed some
missing conveyor drive and rotor guards but did nothing about
that on July 30 (Tr. 5-12).
Mr. Wilt stated that he continued his inspection on
August 5, 1991, and issued two citations to Island Creek Coal
company for lack of audible backup alarms on a front-end loader
and a refuse truck (Tr. 13-15). He also issued a citation to
Island Creek after determining that the backhoe operator Dale
Miller, an Island Creek employee had not received the 24-hour
surface mining training after being transferred from his
underground job (Tr. 15-17). He issued seven additional
citations to Island Creek, but they were subsequently modified to
show the Wiley Construction Company as the responsible party
after he determined that Wiley Construction had a· contractor ID
number on file in the MSHA Morgantown office (Tr. 17, 20).
Mr. Wilt alluded to several missing conveyor guards, but he
provided no further details concerning these citations, and his
testimony is devoid of any further information concerning these
prior citations, and copies of these violations were not provided
as part of the record in these proceedings.
1

Respondent's plant manager Robert Seavy testified by
deposition that Wylie Construction Company was hired by Energy
America, the plant developers, to design and install the plant
conveyor belt system which .is the same system now maintained and
serviced by the respondent United Energy Services, Inc. However,
Mr. Seavy stated that there have been no relationships in the
past two years between Wylie Services and the respondent, and he
did not know who owned Wylie Construction (Tr" 15-16). He was
not aware of any Wylie Construction directors serving as
directors of the respondent 1 s company, and he indicated that only
one or two of the respondent's employees previously worked for
Wylie Construction (Tr. 17-18).
RespondentPs material handling supervisor James Bowman
testified by deposition that he was hired by the respondent on
September 15, 1990, and that the Wylie Construction Company was
already on-site constructing the conveyor system. He was
responsible for overseeing the construction work at that time
(Tr. 12). He confirmed that the respondent's employees are
responsible for repairs and maintenance of the completed belt
conveyor system, including "any repairs that need to be done - =like the structure, the greasing of the rollers" (Tr. 62). He
also confirmed that the respondent's employees are responsible
for cleaning all main conveyor belt spills "from the refuse area
down to the truck dump" as well as spills on the gob movable one
conveyor belt (Tr. 64) •

20 75

Mr. Bowman testified that he was overseeing the belt
construction work when Wylie Construction was cited by MSHA in
July an August, 1991, and he was aware that the inspectors issued
the violations and that Wylie construction was working on the
belt that time (Tr. 101-102).
After careful review and consideration of all of the
aforementioned evidence and testimony of record in these
proceedings, I conclude and find that it does not support the
unwarrantable failure findings made by the inspector. The
inspector's belief that an unwarrantable failure finding may be
supported by a "Knew, or should-have-known" standard falls far
short of the "aggravated conduct" standard enunciated by the
Commission in its controlling decisions. Further, I find no
credible, reliable, or probative evidence to support the
inspector's unsupported opinions and conclusions that the
respondent United Energy Services, Inc., intentionally engaged in
or condoned a common practice of removing belt guards while the
equipment was in operation. On the contrary, it would appear to
me that any such practice was carried out by Island Creek Coal
Company and Wylie Construction Company. In the absence of any
evidence that Wylie Construction and United Energy Services had
common ownership or management, I cannot conclude that the
respondent here should be held accountable for any aggravated
conduct by another contractor or mine operator who are themselves
subject to the Act and to MSHA's enforcement jurisdiction. Under
all of these circumstances, the section 104(d) (1) citation and
section 104(d) (2) orders issued by Inspector Darios ARE VACATED,
and they all modified to section 104(a) citations.
WEVA 92-1045
With respect to Inspector GeorgeRs unwarrantable failure
finding in connection with the respondent's failure to conduct
the required electrical inspections of the belt conveyor
components that were on mine property, Mr. George stated that
during every prior mine inspection that he conducted in early
1991 or 1992Q he was accompanied by Island Creek personnel. He
confirmed that he did not contact any representative of the
respondent before starting his May 12, 1992, inspection.
However, he did speak with respondent's representative, Jim
Bowmane and Island Creek's representative, Tom Lobb, and they
could not produce any records of any electrical examinations for
his review (Tr. 42-43). Mr. George stated that he informed
Mr. Bowman that Inspector Fetty had previously cited the same
violation and that Island Creek had taken the position that the
contractor was responsible for the belt line. Mr. Bowman
informed Mr. George of his opinion that the respondent's
operations were not under the jurisdiction of MSHA (Tr. 44).
Mr. George confirmed that the violation was abated after Island
Creek 6 s certified electrician performed the required electrical
examination.

2076

Mr. George stated that Mr. Bowman indicated to him that he
did not believe that MSHA should be inspecting the respondent's
operation, and that he informed Mr. Bowman that he did have the
authority to inspect the operation on mine property and issued
the violation to the respondent and to Island Creek (Tr. 45).
He confirmed that Mr. Bowman told him that the electrical
inspections were not being conducted, and Mr. George proceeded to
issue the order.
It was terminated within a half-hour after an
Island Creek Coal Company certified electrician conducted an
electrical examination (Tr. 52) • Mr. George "conferenced" the
order with Mr. Bowman and discussed the fact that other citations
and orders had been issued for the lack of electrical inspections
(Tr. 54).
Mr. George made reference to a previously issued
section 104(d) (2) Order No. 3720849 issued to Island Creek Coal
Company for not conducting electrical examinations on certain
trailers and portable generators (Tr. 49-50). Mr• George's
inspection notes reflect that ,power was established to that
equipment on May 7, 1992, and that the order was issued as a
"non-"S&S" order. However, the order is not a matter of record
in this case.
I take note of the fact that Mr. George's order of
May 12, 1992, cites the previously issued guarding Order
No. 3120277, issued on February 26, 1992, by Inspector Darios,
as the underpinning for his May 12 order.
Mr. George stated that the failure to conduct the required
electrical examinations was previously brought to the attention
of the respondent's personnel and he believed that "it was a
condition that was continuing" (Tr. 60). Under the
circumstances, Mr. George concluded that the violation was the
result of "high 11 negligence by the respondent and warranted a
section 104(d) order (Tr. 61).
I have reviewed the deposition testimony of MSHA electrical
inspector Edwin Fetty, and apart from the previous guarding
citation that he issued on August 5, 1991, I find no testimony
regarding any prior citations or orders that he may have issued
regarding the failure to conduct electrical examinations, and the
petitioner has not submitted any evidence of any such prior
violations being served on the respondent in these proceedings.
After careful review of all of the evidence and deposition
testimony in these proceedings, I cannot conclude that it
supports the inspector's unwarrantable failure finding.
In
short, I cannot conclude that the petitioner has proved that the
violation in question was the result of any "aggravated conduct"
on the part of the respondent in this case. Under the
circumstances, the section 104(d) (2) order issued by Inspector
George IS VACATED, and it is MODIFIED to a section 104(a)
citation.

2077

Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
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
substantial. u.s. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 {August 1984); u.s. Steel Mining Company.
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding t.he violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf. Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).

2078

WEVA 92-916
With regard to guarding Violation No. 3120276, concerning
the three cited employees shoveling at the No. 2 gob conveyor
belt tailpiece with the guarding removed, Inspector Darios
believed that if the unguarded pulley were to contact a shovel it
would "cause the shovel to slip and strike somebody. It is a
tight position, it can cause you to be drug under the belt by
holding onto the shovel handle. If they slip, it could drag them
into the belt and permanently diable, crush, or kill them"
(Tr. 91). In response to a question as to why he believed that
an injury was "reasonably likely". Mr. Darios responded as
follows at (Tr. 91):
If the condition is permitted to continue, and if people
are permitted to continue to shovel the belts without
guards, the probability increases that somebody is going to
get caught into, slip into, or caught by, based upon history
and nature of mining.

A.

In response to a question as to why he found that an injury
could reasonable be expected to be permanently disabling.
Mr. Darios stated as follows at (Tr. 92):
A. Again, that is where the person who gets caught in
it is not going to be able to get himself out. If the
shovel handle flips back and hits him in the eye or
some particular part of the body, it can dismember him.
It can poke his eye out. I he gets caught in it, it
could take his hand, his arm, or his entire body into
it.
In response to a question asking him to explain the basis
for his sas&S 11 determination with respect to the violation,
Mro Darios stated as follows at (Tr. 93)~
A. Any time that a condition exposes a miner to a
degree of hazard that would possibly cause him
permanently disabling injury, and is reasonably likely
to occur then it would be significant and .substantially
hazardous to him.
That is based upon your previous training,
experience 1 and your knowledge of the MSHA
requirements?

Q.

A.

Based on my experience in mining, period, ma'am.

I agree with the inspector's "S&S" finding with respect to
the three employees shovelling at the gob conveyor tailpiece with
the guarding removed. The inspectors's notes, which are a part
of the record in this case, include a sketch which places the

20 79

three employees in close proximity to the unguarded tailpiece,
and they corroborate his testimony that the three employees
simply drove up to the belt, removed the guard, and started
shovelling while the belt was running. Given the fact that there
were three people in what appears to be a relatively small area,
I believe it would be reasonably likely that in the course of
shovelling, and while attempting to stay out of each other's way,
or through inattention, one or more of the shovels would contact
the exposed piece of equipment in question. If this were to
occur, I believe that it would reasonably likely result in an
injury. Under the circumstances, the inspector's "S&S" finding
IS AFFIRMED.
With regard to the unguarded grizzly belt tail pulley,
violation No. 3120277, Mr. Darios testified that his notes
reflected that there was a ten-inch opening, 30 inches long, at
the rear and one side of the grizzly that was not guarded. He
described the area as "a tight area where a person can slip and
get their feet in, or if they are cleaning, be caught in with a
shovel. It is just a tight area where you can really get pinched
or caught" (Tr. 101). He confirmed that he observed no one
shovelling with the belt running, and he observed no one in the
cited area when he observed the condition. However, he did
observe someone cleaning, but could not recall whether it was
earlier or later during the work shift (Tr. 102). Mr. Darios
explained his gravity and "S&S" findings as follows at
(Tr. 104-105}:
A. Based upon what I had seen previously on this
shift, people just removing guards and shovelling, I
would presume that people would walk in there and start
shoveling just like they would in any other belt pulley
or drive in the mine.
Q. So that is why you made the reasonably likely
designation for illness or injury?

A.

Yes ma;am.

Is that also why you made designation B, that
permanently disabling injury or illness was reasonably
expected?

Qo

A. Similar condition, similar expectancy of
occurrence.
Tell me why you said that this was a significant
and substantial situation?

Q.

A. The same. Based on the degree and nature of the
injury that occur.

2080

Q. You indicate under block 10-B that the number of person
affected is one, but your notes indicate that no one was
shoveling in this area at the time. How did you arrive at
the indication for 10-B.

A. One would be - without having anybody exposed, you
would normally suppose that one person would be
assigned to work kin this area because it is tight.
For the reasons stated in my affirmance of the inspector's
"S&S 11 finding with respect to citation No. 3120276, I conclude
and find that the inspector's "S&S" finding with respect to order
No. 3120277, was warranted, and it IS AFFIRMED.

With regard to the unguarded feeder chain drive sprockets
and chain, Violation No. 3120278, Mr. Darios stated that if
anyone working in the area were to slip or fall, the unguarded
sprocket "will drag them in a hurry, and they can't get away from
it" (Tr. 108). He stated that-a bulldozer operator and a backhoe
operator were "in close proximity" to the area earlier, but they
were not in the "immediate area" (Tr. 108). He believed that the
cited condition posed a hazard to these two individuals, as well
as "anybody that would be working in that area to clean the belt
or to do work around the belt'' (Tr. 109). His inspection notes
reflect that the cited area had bottom irregularities, "a close
fit in tight area, approximately 2 feet wide by guard", and
Mr. Darios noted his concern over other employees simply driving
up and removing guards in order to cleanup while the belt was
running.
Although I am not totally convinced that the bulldozer
operator or backhoe operator were close enough to the unguarded
feeder sprocket to pose a hazard to them, Mr. Darios believed
that they were used on several occasions to clean up around that
area. Further, Mr. Bowman testified that the respondent's
employees are responsible for cleaning and maintaining the belt
in question, and it would appear that one or more of these
employees would be in the area. Given the bottom irregularities
in the areaq and the rather confined work area adjacent to the
unguarded sprocket, I believe that it would be reasonably likely
that someone would contact the exposed and unguarded sprockets
and chain with a shovel, or with his hand or other body part if
he were to slip. If this were to occur, I further believe that
it would be reasonably likely that serious injuries would result.
Under the circumstances, the inspector's "S&S" finding IS
AFFIRMED.
With regard to Violation No. 3120279, for an inadequately
guarded gob belt take-up pulley, Mr. Darios explained his gravity
findings.as follows at (Tr. 113, 117-118):

2081

A. The exposure of the pulley, again, without
sufficient length guarding, and based on the number of
violations that I had already issued previously on
guarding that day, it was almost to the point of
frustration and ridiculousness, as far as I was
concerned, to the extent that the guarding was being
let go. And I felt that it was very unwarrantable on
management's part to permit that.
Q. Would your testimony be the same regarding the
gravity designations that you made as the explanations
that you have given earlier?

A.

Yes, ma'am.

I cannot conclude that the evidence in this instance
supports the inspector's "S&S 11 finding. I have reviewed the
inspector's notes with respectto this violation, and I take note
of a notation by the inspector that the unguarded pinch point
that concerned him was six-and-one feet above ground level. In
the absence of further evidence, I cannot conclude that it was
reasonably likely that anyone could have contacted the exposed
area that concerned the inspector. Further, the explanation
offered by the inspector in support of his gravity finding speaks
more to the respondent's negligence rather gravity. Under the
circumstances, the inspector's "S&S" finding IS VACATED, and the
violation IS MODIFIED to a non-"S&S" violation.
WEVA 92-961
Inspector Wilt's deposition is devoid of any relevant
testimony concerning his special "S&S" finding associated with
the three untrained employees who were cited on February 27,
1992o Although Inspector George alluded to the violation, he
simply indicated that three individuals whose names he could not
remember, and who he identified as "maintenance personnel for the
belt line"Q were not provided with training (Tr. 55). Under the
circumstances, I conclude and find that the evidence presented it
this case does not establish that the violation in question was
1
Q S&S" u
and the inspector's finding is this regard IS VACATED.
The violation IS MODIFIED to a non-"S&S" violation.
WEVA 92-1045
Inspector George believed that the failure to conduct the
electrical examinations was an "S&S" violation and would
reasonably likely result in an injury because "any fault could be
there without their realizing it, and an injury could occur"
(Tr. 58). He confirmed that no one was working in the areas
where the electrical belt components were located, and he did not
know whether any examinations had been conducted pursuant to any

2082

OSHA regulations. He further confirmed that he found no problems
with any of the electrical belt components, and he conceded that
he observed no conditions that would result in a fatality or
permanently disabling injury. However, he believed "that there
could be a shock or a burn injury", and that one individual would
normally be working in the cited area. He identified that
individual as "cleanup, maintenance, or whatever" (Tr. 59-60).
I cannot conclude that the inspector's "S&S" finding is
supportable. Although I have found that a violation occurred,
and would agree that it is possible that anyone contacting a
faulty piece of electrical equipment could suffer injuries, there
is no credible or probative evidence to support any reasonable
conclusion that it was reasonably likely that someone would be
injured as a result of the violation in this case. None of the
electrical components are identified or explained, and there is
no evidence that any of the cleanup or maintenance personnel
would be in close proximity to any of the components that may not
have been examined. Further, Mr. George found nothing wrong with
those components, and althoughhe mentioned shock and burn
injuries, I find no evidence to support the reasonable likelihood
of such injuries. Under all of these circumstances, the
inspector's "S&S" finding IS VACATED, and the violations IS
MODIFIED to a non-"S&S" violation.
WEVA 93-97
Inspector George testified that after finishing his
inspection of the Island Creek preparation plant on August 27,
1992, he went to the gob area and observed Mr. Dragovich "working
in that area". Mr. George stated that Mr. Dragovich had come to
the area in a truck owned by "the power plant" to inspect the
beltline at the gob area. Mr. Dragovich informed Mr. George that
he worked for the respondent, and when asked about his training,
Mr. Dragovich informed Mr. George that he last received training
when he worked for Island Creek as an underground miner
(Tr. 73-74) •
Mr. George concluded that Mr. Dragovich's lack of
surface training could reasonably likely result in an injury
because 91 the man had not received any type of surface training.
He could run into a situation that he was not familiar with, and
an accident could occur 11 (Tr. 80). Mr. George confirmed that he
made a gravity finding of "lost work days or restricted duty",
and he observed nothing that would lead him to conclude that
Mr. Dragovich's lack of surface training would result in a
fatality or permanently disabling injury. He also stated that
Mr. Dragovich's lack of knowledge of surface situations could
result in a "minor accident", and he based this opinion on the
fact that he found no other violations at the dozer hopper or
belt area where he observed Mr. Dragovich. Mr. George confirmed
that he was aware of the fact that Mr. Dragovich had previous

2083

underground mining experience, and had worked for the respondent
since April 1991, with no problems, injuries, or accidents
(Tr. 81-84).
I cannot conclude that the evidence of record supports any
conclusion that Mr. Dragovich's lack of MSHA training constituted
a significant and substantial violation. I find no credible or
probative facts to support any conclusion that the lack of
training would reasonably likely result in injuries to
Mr. Dragovich or others. At the time that the inspector observed
Mr. Dragovich he had apparently driven by the conveyor in a truck
visually observing the beltline and that he got out of his truck
when he reached the gob pile area. Given the fact that
Mr. Dragovich had worked for the respondent in surface areas for
over a year, had previous mining experience, and had never
encountered any safety difficulties on the job, I cannot conclude
that his lack of MSHA training would place him or others at risk.
Under the circumstances, the inspector's "S&S" finding IS
VACATED, and the violation IS Z,:ODIFIED to a non-"S&S" violation.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business
The petitioner asserts that during the last few months of
1992, and after the citation and orders in these cases were

issued, the North Branch refuse area was split from the North
Branch Mine I.D. renamed North Branch Fuel Supply, and given I.D.
No. 46-08253. However, it is still operated by the Laurel Run
Mining Company.
The petitioner states that the underground portion of
the North Branch Mine has merged into Potomac Mine, I.D.
No. 46-04190u a mine that it connects with underground, and that
North Branch Mine is now called the North Portal of Potomac Mine,
under the I.D. number of Potomac Mine, and is still operated
by Laurel Run.
Further, the petitioner states that the surface
area of the North Branch Mine and the North Branch Preparation
Plant have remained under the I.D. number of the North Branch
Mineo I.D. No. 46-04190, and are being shut down, with the coal
and refuse from the North Portal of Potomac Mine being sent
elsewhere 9 and that Island Creek Coal Company is the operator for
I.D. No. 46-04190 while the operations are being closed down.
The petitioner concludes that these differences have no effect on
the lssues in these proceedings since the citation and orders
were issued while active operations were taking place at the
North Branch Mine, North Branch Preparation Plant, and the North
Branch Refuse area.
The petitioner states that the respondent has 65 employees
at the plant site and that its operations require approximately
135,200 annual work hours. Petitioner concludes that this
constitutes a medium-sized operation. I agree.

2084

The petitioner takes the position that payment of the
proposed civil penalty assessments of $2,900, for all of the
violations in these proceedings will not adversely affect the
respondent's ability to continue in business. Although the
respondent has conceded as part of its admissions in these cases
that payment of the proposed penalties will not adversely affect
its ability to continue in business, it takes the position that
being subject to MSHA's enforcement jurisdiction could impact on
its ability to continue in business.
In a contested civil penalty case the presiding judge is not
bound by the penalty assessment regulations and practices
followed by MSHA's Office of Assessments in arriving at initial
proposed penalty assessments. Rather, the amount of the penalty
to be assessed is a de novo determination by the judge based on
the six statutory criteria specified in section 110(i) of the
Act, 30 u.s.c. § 820(i), and the information relevant thereto.
Shamrock Coal Co., 1 FMSHRC 469 (June 1979); aff'd, 652 F.2d 59
(6th Cir. 1981); Sellersburg Stone Company; 5 FMSHRC 287, 292
(March 1983). As a general rule, and in the absence of evidence
that the imposition of civil penalty assessments will adversely
affect a mine operator's ability to continue in business, it is
presumed that no such adverse affect would occur. Sellersburg
Stone Company, 5 FMSHRC 287 (March 1983), aff'd 736 F.2d 1147
(7th Cir., 1984).
It seems obvious to me that the respondent would rather be
regulated by OHSA rather than MSHA. However, the fact that an
operator must spend money to bring its operations into compliance
with MSHA's safety and health standards, or fails to budget
money for paying penalties, is no basis for not imposing civil
penalty assessments for proven violations. See: J & c Coal
Corporation, 8 FMSHRC 799 (May 1986); Town of Canandaigua,
2 FMSHRC 2154 (August 1980)o The respondent's suggestion that
subjecting it to MSHA;s enforcement jurisdiction may adversely
affect its ability to continue in business IS REJECTED. This
argument could be raised by any mine operator or contractor who
is not too enchanted with being regulated by MSHA, and who would
prefer to be regulated by OSHA, as "the lesser of two evils"o
The respondent is free to present evidence that payment of any
particular proposed civil penalty assessment may adversely affect
its business. However, in the instant proceedings, I cannot
conclude that the payment of the penalties that I have assessed
for the violations in question will adversely affect the
respondent 8 s ability to continue in business.
History of Previous Violations
The petitioner has confirmed that the respondent has no
history of previous violations.
I adopt this as my finding and
conclusion on this issue.

2035

Good Faith Abatement
The petitioner asserts that the violations were abated in
good faith within the times set for abatement. The abatement
information reflects that the grizzly gob feeder chain guard was
replaced in two hours (Order No. 3120278}; the rear tailpiece
pulley guard was replaced and a new side guard was installed in
two hours (Order No. 3120277) ; the conveyor belt take-up pulley
was expanded a distance sufficient enough to prevent contact by
and/or injury to persons within 1 1/2 hours (Order No. 3120279):
and that the electrical inspection was completed and recorded by
a certified person within 35 minutes.
Gravity
Based on my "S&S" findings and conclusions with respect to
the violations in these proceedings, I conclude and find that the
guarding violations 3120276, 3120277, and 31202778, issued by
Inspector Darios were serious violations. I further conclude and
find that all of the remaining· 'Violations were non-serious.
Negligence
Although I have no reason not to believe the respondent's
assertions that it had a good faith belief that it was not
subject to MSHA's enforcement jurisdiction, based on all of the
evidence and testimony of record in these proceedings, I am not
convinced that the respondent was totally oblivious to the fact
that MSHA was asserting jurisdiction in those mine areas where
contractor work was being performed.
The testimony of the inspectors reflects that Mr. Bowman was
informed prior to the issuance of the violations in these
proceedings that any contractor performing work on mine property
was subject to MSHAus regulatory and enforcement jurisdiction and
would be held accountable for any violations by contractor
employees while working on mine property. Mr. Bowman stated that
the was "overseeing" some of the conveyor construction work as
early as September 1990 (Tr. 94). He also stated that prior to
working for the respondent, he worked for a coal company for ten
yearsf including a job as plant manager. He also worked for
eight years building and operating coal preparation plants
(Tro 9-12). He confirmed that he was aware of the differences
between the OSHA and MSHA conveyor and guarding standards
{Tro 95). He also confirmed that in July and August, 1991, he
was aware of the fact that MSHA was asserting jurisdiction over
the conveyor belt on North Branch property, and that he was aware
that Wylie construction had been cited with violations by MSHA
for violations incident to that conveyor (Tr. 100-104).
Although Mr. Seavey indicated that he had no knowledge of
MSHA when he was first hired at the plant on October 1, 1991, he

2086

stated that "I knew of the interface at the refuse pile, where we
accepted the refuse from Island Creek Coal (Tr. 44).
In view of the foregoing, I conclude and find that all of
the violations in these proceedings were the result of the
respondent's failure to exercise reasonable care to prevent the
violative conditions which it knew or should have known existed
at the time they were observed by the inspectors, and that this
amounts to ordinary or moderate negligence.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section 110(i) of the Act, I conclude and find that the
following civil penalty assessments are reasonable and
appropriate for tne violations which have been affirmed:
citation No.

Date

30 C.F.R. Section

Assessment

3120276
3120277
3120278
3120279
3120293
3720850
3115366

2/26/92
2/26/92
2/26/92
2/26/92
2/27/92
5/12/92
8/27/92

77.400(d)
77.400(a)
77.400(d)
77.400{c)
48.24(a)
77.502
48.25(a)

$200
$95
$95
$75
$60
$80
$75

ORDER
The respondent IS ORDERED to pay the civil penalty
assessments enumerated above within thirty (30) days of the date
of these decisions and order. Payment is to be made to the
petitioner (MSHA), and upon receipt of payment, these proceedings
are dismissed.

k«~
Administrative Law Judge

2087

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

u.s. Department of Labor, 4015 Wilson Boulevard, Rm. 516,
Arlington, VA

22203

(Certified Mail)

Monica K. Schwartz, Esq., Ricklin Brown, Esq., Bowles, Rice,
McDavid, Graff & Love, 16th Floor Commerce Square, Lee Street,
P.O. Box 1386, Charleston, WV 25325-1386 (Certified Mail)

ml

2088