FEBRUARY 1994

CCM(tSSIQN DECI SION$ AND ORDERS
02-08-94
02-09-94
02-14-94
02-22-94
02-23-94
02-23°-94
02-24-94

Martin Marietta Aggregates
Mullins and Sons Coal Company, Inc.
Larry E. Swift, et al. v. Consolidation
Coal Company
Tug Valley Coal Processing
Wagner Sand & Stone, Inc.
T & F Sand & Gravel, Inc., et al.
Hickory Coal Company

YORK 93-126-M
KENT 92-669

Pg. 189
Pg. 192

PENN 91-1038-D
WEVA 94-26
SE
93-114-M

Pg.
Pg.
Pg.
Pg.
Pg.

201
216
219
222
226

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

229
267
291
295
308
319
327
335
337

Pg.
Pg.
Pg.
Pg.

363
368
373
375

SE

93-356-M
CENT 93-237-RM
PENN 93-15
93-370
SE
92-408
SE

Pg.
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Pg.
Pg.
Pg.
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376
378
387
400
405
417
424
452
456

KENT 93-735 - D
KENT 92-702
WEVA 94-157-R
KENT 94-294

Pg.
Pg.
Pg.
Pg.

487
489
495
499

CENT 91-215-M
PENN 93-86

AI:MINISTRATIVE LAW JUDGE DECISIONS
02-02-94
02-03-94
02-04-94
02-04-94
02-08-94
02-08-94
02-09-94
02-14-94
02-16-94
02-16-94
02-16-94
02-16-94
02-17-94
02-18-94
02-22:..94
02-22-94
02-23-94
02-23-94
02-24-94
02-24-94
02-25-94
02-25-94

Consolidation Coal Company
BethEnergy Mines, Inc.
Rhone-Poulenc of Wyoming Co.
Western Fuels-Utah, Inc.
Webster County Coal Corporation
John J. Stack v. Echo Bay Minerals
Magma Gopper Company
Cobra Mining Incorporated
Walker Stone Company, Inc.
Larry D. Irvin employed by New Horizons
Coal, Incorporated
Island Creek Coal Company
Roxcoal Incorporated
Texas Gravel Incorporated
Sec. Labor on behalf of Robert Buelke v.
Santa Fe Pacific Gold Corp.
W.A. Schemmer Limestone Quarry
Huntington Piping Incorporated
Mountaintop Restoration, Inc.
G & c Mining Company, Inc.
Morton International, Inc./Morton Salt
L & J Energy Company, Inc.
Brown Brothers Sand Company
Jim Walter Resources, Inc.

WEVA 93-102
PENN 92-511-R
WEST 92-519-M
WEST 94 - 95-M
KENT 93-201-R

WEST 94-4-DM
WEST 94-161-RM
KENT 93-895
CENT 93-97-M
KENT 93 - 467
KENT 92-1030

PENN 93-225
CENT 93-103-M
WEST 92-545-DM
CENT 92-206-M

WEVA 93-57
KENT 93-505

AtldlNISTRATIVE LAW JUDGE ORDERS
02-03-94
02-08-94
02-14-94
02-24-94

Bryan Wimsatt v. Green Coal ~ompany
Pecks Branch Mining Co., et al.
Consolidation Coal Company
KYN Coal Company, Inc.

i

FEBRUARY 1994

Review was granted in the fo1lowins cases during the month of February:
Secretary of Labor, MSHA v. Peabody Coal Company, Docket No. KENT 93-369.
(Judge Amchan, December 30, 1993)
Secretary of Labor on behalf of carroll Johnson and UMWA v. Jim Walter
Resources, Inc., et al., Docket No. SE 93-182-D, SE 93-104. (Judge
Weisberger, December 30, 1993)
Secretary of Labor, MSHA v. Martin Marietta Asgregates, Docket No.
YORK 93- 126-M. (Judge Melick, Settlement Decision issued November 4, 1993 unpublished)
Peabody Coal Corrpany v. Secretary of Labor, MSHA, Docket No. KENT 93-318-R,
etc. (Judge Amchan, January 5, 1994)
Secretary of Labor, MS.HA v. Buck Creek Coal Company, Docket No. LAKE 93-241.
(Judge Hodgdon,·. January 10, 1994)
Secretary of Labor, MSHA v. Tug Valley Coal Processing, Docket No . WEVA 94-26 .
(Chief Judge Merlin, unpublised Settlement issued January 13, 1994)
Secretary of Labor, MS.HA v. Wagner Sand & Sonte, Inc . , Docket No. SE 93-114-M.
(Chief Judge Merlin, unpublished Default issued October 22, 1993)
Secret~ of Labor, MSHA v. T & F Sand and Gravel, Inc. , and others, Docket
No. CENT 91-215, etc. (Chief Judge Merlin, Unpublished Order of Dismissal
issued June 5, 1992)

Secretary of Labor, MSHA v. Hickory Coal Company, Docket No . PENN 93-86.
(Judge Maurer, unpbulished Settlement issued January 24, 1994)

'I'here were no cases filed in wbicb review was denied:

ii

COMMISSION DECISIONS AND ORDERS

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

February 8, 1994

SECRETARY OF IABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 93-126-M

v.

MARTIN MARIETTA AGGREGATES

BEFORE:

Holen, Chairman; Backley and Doyle, Commissioners 1
ORDER

BY THE COMMISSION:
In this civil penalty proceeding, arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"), the
Secretary of Labor proposed penalties for eight citations issued to Martin
Marietta Aggregates ("Martin Marietta"). On November 3, 1993, the Secretary
filed with Administrative Law Judge Gary Melick, on behalf of the parties, a
Motion to Approve Settlement. The Secretary's motion stated that Martin
Marietta had agreed to pay proposed penalties in the amount of $50 for each
violation and that the total sum due was $350. The judge approved the
settlement motion by decision dated November 4, 1993.
On January 11, 1994, the Secretary filed with the judge a Motion to
Amend Decision Approving Settlement ("Motion to Amend") . Judge Melick
forwarded the Motion to Amend to the Commission. As grounds for the motion,
the Secretary asserts that, due to clerical error, the parties' settlement
agreement incorrectly set forth the total amount of the settlement for the
eight violations as $350 rather thap $400. The Secretary states that Martin
Marietta has no objection to his Motion to Amend.
The judge's jurisdiction in this matter terminated when his Decision
Approving Settlement was issued on November 4, 1993 . Commission Procedural
Rule 69(b), 58 Fed. Reg . 12158, 12171 (March 3, 1993), to be codified at 29
C.F.R. § 2700.69(b) (1993). Under the Mine Act and the Commission's
1

Commissioner Nelson participated in the disposition of this case. He
passed away before the order was issued. Pursuant to section 113(c) of the Mine
Act, 30 U.S.C. § 823(c), we have designated ourselves as a panel of three members
to exercise the powers of the Commission .

. 189

procedural rules, relief from a judge's decision may be sought by filing a
petition for discretionary review within 30 days of its issuance. 30 U. S.C. §
823(d)(2); 29 C.F.R. § 2700 . 70(a). The Secretary did not file a timely
petition for discretionary review within the 30-day period and the Commission
did not sua sponte direct this case for review. Thus, the judge's decision
became a final decision of the Commission 40 days after its issuance. 30
U.S.C. § 823(d)(l). Under these circumstances, we deem the Motion to Amend to
be a request for relief from a final Commission decision incorporating a latefiled petition for discretionary review. See,~. Island Creek Coal Co., 15
FMSHRC 962, 963 (June 1993).
Under Fed. R. Civ. P. 60(b)(l) & (6), the Commission has afforded relief
from final judgements on the basis of inadvertence, mistake, and other reasons
justifying relief. See, ~. Klamath Pacific Corp., 14 FMSHR.C 535, 536
(April 1992). The record reveals that, due to a calculation error, the
Secretary's settlement motion mistakenly proposed a total penalty of $350.
The Secretary seeks to correct this error and asks that the judge's decision
be amended to assess a penalty of $400; Martin Marietta does not oppose the
motion. Accordingly, we conclude that the Secretary's motion should be
granted.
For the reasons set forth above, we reopen this proceeding, grant the
Motion to Amend and modify the judge's decision to assess Martin Marietta a
total penalty of $400·.

Arlene Holen, Chairman

~Ii~
iceA:DOYie:
CommissiOt\er

190

Distribution
Pamela W. McKee, Esq .
Office of the Solicitor
U.S . Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104
Christopher Bryan, Safe t y Mgr .
Mar tin Marietta Aggregates
P.O. Box 30013
Raleigh , NC 27622
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church , VA 22041

191

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

20006

February 9, 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 92-669

v.

MULLINS AND SONS COAL COMPANY, INC.
BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 1
DECISION
BY:

Holen, Chairman; and Doyle Commissioner:

This civil penalty proceeding, arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"),
raises the question of whether violations of 30 C.F.R. §§ 75.400 and 75.402 by
Mullins and Sons Coal Company, Inc. ("Mullins") were caused by its
unwarrantable failure to comply with the standards. 2 Administrative Law
1

Commissioner Nelson participated in the disposition of this case. He
passed away before the decision was issued. Pursuant to section 113(c) of the
Mine Act, 30 U.S ~ C. § 823(c), we have designated ourselves as a panel of three
members to exercise the powers of the Commission.
2
30 C.F.R. § 75.400, "Accumulations of combustible materials,"
provides:

Coal dust, including float coal dust deposited
on rock-dusted surfaces, loose coal, and other
combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on
electric equipment therein.
30 C. F. R. § 7 5 . 402, "Rock dusting, " provides:
All underground areas of a coal mine, except
those areas in which the dust is too wet or too high
in incombustible content to propagate an explosion,
shall be rock dusted to within 40 feet of all working
faces, unless such areas are inaccessible or unsafe to
enter or unless the Secretary or his authorized
representative permits an exception upon his finding

192

Judge Jerold Feldman determined that both violations had not been caused by
Mullins' unwarrantable failure. 15 FMSHRC 1061 (June 1993)(ALJ). The
Commission granted the Secretary's petition for discretionary review
challenging these findings. For the reasons discussed below, we vacate the
judge's decision and remand for further proceedings.
I.

Factual and Procedural Background
Mullins operates the No. 6 mine, an underground coal mine in Pike
County, Kentucky .. On Monday, June 17, 1991, Inspector Donald Milburn of the
Department of Labor's Mine Safety and Health Administration ("MSHA") inspected
the mine and reviewed the preshift examination book. A notation stated that
accumulations of coal and coal dust existed in the Nos. 1 through 6 entries in
the No. 2 section and that the area needed rock dusting. He inspected the six
entries and observed accumulations that were between three and six inches in
depth and extended inby the No. 2 belt feeder approximately 180 feet in each
entry . The accumulations, which were dry and black, consisted of loose coal,
coal dust and float coal dust. The inspector also observed that the mine
roof, floor and ribs in the six entries and the connecting crosscuts were
black. At the time of the inspection, the battery-operated scoop usually used
to r emove accumulations and to rock dust was being charged.
Inspector Milburn issued a citation to Mullins under section 104(d)(l)
of the Mine Act, ·30 U.S.C. § 814(d)(l), alleging a significant and substantial
("S&S") violation of section 75.400, and an order of withdrawal under section
104(d)(l) of the Act, alleging an S&S violation of section 75.402. 3 The
citation and order were terminated the following day after the accumulations
were removed and the area was rock dusted.
The Secretary proposed that a civil penalty of $1,000 be assessed
against Mullins for each violation and Mullins challenged the proposals. At
the hearing, Mullins conceded that it had violated the standards and that the
violations were S&S, but contended that the violations were not caused by its
unwarrant able failure.
The judge found that Mullins' violatLon of section 75.400 was not caused
by its unwarrantable failure because the accumulations had existed for only
three hours, they had been noted in the preshift examination book, the scoop
usually used to remove accumulations was inoperable, and no alternative means
of clean-up existed. 14 FMSHRC at 1064. The judge found that Mullins'
violation of section 75.402 was not caused by its unwarrantable failure
that such exception will not pose a hazard to the
miners. All crosscuts that are less than 40 feet from
a working face shall also be rock dusted.
3

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 .... "

193

because Mullins intended to remove, rather than ~ock dust, the accumulations
as soon as the scoop became operable. 14 FMSHRC at 1065 . Accordingly, the
judge assessed civil .penalties for the violations of sections 75.400 and
75.402 in the amounts of $600 and $400, respectively . lf!....
II .
~isposition

A.

Legal stand,;n·d

In Emery Mining Corp . , g FMSHRC :1997 , 2004 (t>ece®er 1987), the
Commission determined that unwar~antable failure is aggravated conduct
constituting more than ordinary negligence. ·This determinatian was derived,
in part, from the plain meaning of "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 . " 14.... at
2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC .189, 193-94 (February
1991).
The Secretary argues that, as to both violations, the judge applied an
incorrect legal standard by equating unwarrantable failure with gross
negligence. 4 We disagree. Although the judge stated that unwarrantable
failure is a phrase "used to connote gross negligence," relying upon Emery and
Youghiogheny & qhio Coal Co., 9 FMSHRC 2007 (Dec·el!lber l987), he also
distingui sh~d unwarrantable failure from ordinary negligence, stating ~hat
"ordinary negligence is manifested by inadvertence, thoughtlessness or
inattention, whereas unwarrantable failure is conduct that is not justifiable,
or, conduct that is inexcusable." 15 FMSHRC at 1063. The judge applied the
correct legal standard in determining whether Mullins' behavior reflected
unwarrantable failure.
B.

Section 75.400 violation

The Secretary argues that the judge erred in concluding that Mullins'
notation of the violation in the preshift log insulated it from an
unwarrantable failure finding . He contends that Mullins' failure to commence
removal of the accumulations after they were discovered demonstrates its
unwarrantable failure to comply with the standard. The Secretary requests
that the Commission vacate the judge's determination to the contrary and
remand to him for reconsideration.
The judge stated that "a notation in the pre-shift examination book ...
insulates, to a certain degree , the operator from an unwarrantable failure
charge because it shows a recognition of the hazard created by the
accumulations." 15 FMSHRC at 1064 . The judge further stated that, if the
4

Mullins did not file a brief on review .

·194 .

operator "proceeds to ignore the accumulations, such conduct would constitute
an unwarrantable failure." Id. H~ determined that the violation was not
unwarrantable failur~ based on his finding that Mullins' failure to remove the
accumulations, after the preshift examination, was not the result of its
"inexcusable neglect." Id.
We agree with the ·secretary that the notation of coal accumulations in a
preshift examination book does not insulate an operator from an unwarrantable
.f ailure find~ng. The Commission has recognized that a number of factors are
'relevant iri determining whether a violation is -the result of an operator's
unwarrantable failure, such as the extensiveness of the violation, the length
of time tha~ · the ·violative · condition has existed, the operator's efforts to
eliminate· the viol_a tive condition, and whether an operator has been placed on
notice that greater efforts are necessary for compliance. See, ~. Peabody
Coal Co., 14 FMSHRC 1258, 1261 (August 1992). Although the judge correctly
sta:ted .that the operator's efforts to eliminate the hazard must be examined
when determining whether a violation resulted from an unwarrantable failure,
we conclude that the judge did not adequately consider such fa~tors in his
analys.is. More·o ver, the findings relied upon by the judge in reaching his
conclusion th~t Mullins' violation of section 75.400 was not an unwarrantable
failute are not supported by substantial evidence.
The record indicates that, at the time of the inspection, Mullins had
taken no steps to remove the accumulations, except to begin charging the
scoop. The judge found that Mullins' lack of abatement activity did not
constitute aggravated conduct b~cause the sc.oop used for cleaning
accumulations was being charged and no other scoops were available. 15 FMSHRC
at 1Q64. He further found that, "given the length of [the accumulations] in
each entry (180-feet), cleaning the accumulations by manual shoveling was not
feasible.
15 FMSHRC at 1,063 n.3 (citation omitted). He concluded that "no
alternative means of cleaning up the accumulations" existed. 15 FMSHRC at
1064.
0

:

The judge's finding that Mullins had no alternative means to remove the
accumulations is not supported by substantial evidence. 5 Inspector Milburn
testified that Mullins could have used shovels to remove the accumulations or
refrained from producing coal until the area had been cleaned . Tr. 33-34, 39,
146. 6 The judge's finding that shoveling was not feasible was not based on
evidence, but rather on a question asked by Dale Mullins, vice president of
Mullins, who represented it, during cross-examination of Inspector Milburn.
Tr. 87-8. Mr. Mullins asked whether the inspector would agree that the
5

The Commission is bound by the substantial evidence test when
reviewing an administrative law judge's factual determinations. 30 U.S.C. §
823(d)(2)(A)(ii)(I). ••substantial evidence" means "such relevant evidence as
a reasonable mind ndght accept as adequate to support [the judge's]
conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November
1989), guoting Consolidated Edison Co. v, NLRB, 305 U.S. 19.7, 229 (1938).
.

6

Dale Mullins testified that production had not been ceased because
Mullins did not think ·conditions were "~11 that bad." Tr. 192.

195

accumulations "would have been quite a bit for a man to have to do by hand."

.IsL..7 This question was not answered by the inspector and Mr. Mullins offered
no testimony that the accumulations could not have been, removed by hand. In
fact, Mr. Mµllins stated, in an exchange with the judge, that to remove the
accumulations "with a shovel, ... would have [taken] several shovels." Tr .
88-89.
Substantial evidence is also lacking for the judge's finding that the
accumulations had existed for only three hours. Inspector Milburn testified
that the accumulations had existed for at least three hours based upon the
fact that, at the time of his 10:00 a.m. inspection, coal had been in
production since 7:00 a.m. that morning. Tr. 69, 133-34. He also testified,
however, that he believed the accumulations had existed since the previous
Friday, because of the quantity and nature of the accumulations and based on
his conversations with the operator, in which he was informed that the section
had been behind in cleaning and rock dusting since the previous Friday because
the scoop used for such purposes had been "down. 118 Tr. 24-25, 69-72. Dale
Mullins also testified that they were not able to "catch up " during the
maintenance shift on Saturday because the scoop was "down." Tr. 176-77, 184.
More importantly, the parties stipulated that the preshift entry noting the
accumulations had been entered in the preshi ft book at approximately 6:00 a.m.
on Monday, June 17. Tr. 11. Since production had not commenced until
approximately 7:00 a.m. on that day and no coal had been produced over the
weekend, all or a large portion of the accumulations must have existed since
the previous Friday. Tr. 194-95.
Accordingly, we vacate the judge's finding of no unwarrantable failure
and remand the proceeding for further consideration consistent with our
decision. The judge should review the record evidence and consider it in
light of the factors set forth in Peabody, including the extensiveness of the
accumulations, the length of time that they had existed and Mullins' efforts
to eliminate them. If he determines that the violation was the result of
Mullins' unwarrantable failure, he should reassess the civil penalty.

7

In his question, Mr. Mullins indicated that the six entries contained
about 20,000 square feet of accumulations. Tr. 87. Based on his estimate
that the accumulations were 180 feet long and 6 inches wide in each of the 6
entries, it would appear that they were closer to 540 square feet. See Id.
8

The inspector documented this conversation in the contemporaneous
notes that he took during his inspection:
I held a mini close-out [conference] with Dale Mullins
Both ... remarked that they were
behind on permanent stoppings, that [the] scoop was
down on Saturday and that they were behind on cleaning
& rock dusting also since · Friday ' s shift.

& Tony Mullins.

G. Ex. 1, pp. 40-41.

196

C.

Violation of section 75.402

The Secretary argues that the judge erred in concluding that Mullins'
violation of section 75.402 was not unwarrantable because Mullins intended to
remove the accumulations rather than rock dust as soon as the scoop used for
such purposes was o_p erable. The Secretary requests that the Commission vacate
the judge ' s determination and remand for reconsideration. We agree that such
action is appropriate.
The judge determined that, because Mullins intended to clean up the
accumulations as soon as the scoop was placed in service , Mul lins' failure to
rock dust them was not an unwarrantable failure. 15 FMSHRC at 1065. The
judge held that "rock dusting is an alternative method of neutralizing
combustible accumulations that are not removed with a scoop .... " Id. He
based this conclusion, in part, on Inspector Milburn's testimony that "it
would serve no purpose to rock dust accumulations that were going to be
cleaned." Id.
Section 75.402 does not exclude from its rock dusting requirement areas
containing accumulations that will be cleaned up. The safety standard states
that "[a]ll underground areas of a coal mine ... shall be rock dusted to .
within 40 feet of all working faces .... " The only exception is for "areas in
which the dust is too wet or too high in incombustible content to propagate an
explosion." Dust. samples taken by the inspector indicate that the
accumulations did not fall within this exception. Tr. 111-12.
The judge erred to the extent that h e concluded that rock dusting is an
alternative method of complying with the clean-up requirements of section
75.400. Although the inspector acknowledged that rock dusting the
accumulations would serve no purpose if the operator were going to immediately
remove them, he c l arified that operators are required by the safety standards
to clean up accumulations and then to rock dust the area. Tr. 150-51, 152 -53 .
In any event, it would appear that Mullins was not planning to remove the
accumulations immediately, but, instead, intended to remove them at an
indefinite time in the future when the scoop became operable.
Moreover, the rock dusting citation was not limited to the area of the
accumulations but included the roof, ribs and other floor areas in the entries
and the connecting crosscuts. Joint Ex. 2. Thus, the fact that Mullins was
planning to remove the accumulations does not excuse its failure to rock dust
the roof, ribs and floor in those areas.
Accordingly, we vacate the judge's finding that Mullins' violation of
section 75.402 was not caused by its unwarrantable failure and remand for
reconsideration in ligh t our decision . In determining whether the violation
was the result of unwarrantable failure, the judge should review the record
and consider such factors as the extensiveness of the area that was not rock
dusted, the length of time that the violation had existed and Mullins ' efforts
to comply with t h e safety standard. If he determines that the violation was
the result of Mullins' unwarrantabl e failure, he should reassess the civil
penalty.

197

III.

Conclusion
For the reasons discussed above, we vacate the judge's determination
that Mullins' violations of sections 75.400 and 75.402 were not caused by its
unwarrantable failure. We remand for reconsideration on this record
consistent with this decision, and for the reassessment of civil penalties, if
appropriate.

Arlene Holen, Chairman

198

Commissioner Backley, concurring in part, and dissenting in part.
I am in complete agreement with the analysis of this case as set forth by my colleagues.
However, in view of the referenced ~/ compelling record evidence regarding the issue of
unwarrantable failure as to both violations, I have concluded that no useful purpose is served
by remanding that issue to the administrative law judge. In my opinion both violations resulted
from an unwarrantable failure by the operator. Therefore, I would reverse the judge on the
unwarrantable failure issue as to both violations, and remand the case only for the purpose of
reassessment of civil penalties, as appropriate.

/

.-,

/ '

~·~::-- -·---t.--·~A--1'~/~<.- t.~

<'

Richard V. Backley, CommissionerV

~/

Additionally and significantly, I note that, as to the violation of § 75.402, Inspector
Milburn testified that the entries and crosscuts were black and appeared never to have ·been rock
dusted. Tr. 75, 110-111, 118, 123-24, 146-48.

199

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington , VA 22203
Dale Mullins, Vice President
Mullins and Sons Coal Co ., Inc .
Box 4028 , Upper John's Creek Rd.
Kimper, KY 41539
Adminis t rative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike , Suite 1000
Fal ls Church , VA 22041

200

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0.C. 20006

February 14, 1994
LARRY E. SWIFT, MARK SNYDER, and
RANDY CUNNINGHAM

v.

Dock.No. PENN 91-1038-D

CONSOLIDATION COAL COMPANY

BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners 1
DECISION

BY:

Holen, Chairman; and Backley, Commissioner

In this discrimination proceeding arising under the ·Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"),
larry E. Swift, Mark Snyder and Randy Cunningham, miners who were employed by
Consolidation Coal Company ("Consol"), charged that Consol's Program for High
Risk Employees ("the Program") violated section lOS(c)(l) of the Mine Act . 30
U.S.C. § 815(c)(l). Administrative Law Judge Gary Melick concluded that the
Program was facially discriminatory under the Act and ordered Consol to cease
implementation of the Program. 14 FMSHRC 361 (February 1992)(ALJ) .
The case raises four issues: (1) whether the reporting of injuries under
the Program constitutes protected activity under section lOS(c)(l) ;
(2) whether the Program is facially, or per se, discriminatory in violation of
section lOS(c)(l); (3) whether the Program was instituted for discriminatory
reasons; and (4) whether the Program was applied to miners in violation of
section lOS(c)(l). For the following reasons, we affirm the judge's
conclusion that injury reporting constitutes protected activity; we reverse
the judge's finding that the Program was facially discriminatory; ·and we
remand for consideration of the third and fourth issues, which the judge did
not reach.

1

Commissioner Nelson participated in the disposition of this case. He
passed away before the decision was issued. Pursuant to section 113(c) of the
Mine Act, 30 U.S.C. § 823(c), we have designated ourselves as a panel of three
members to exercise the powers of t he Commission.

201

I.
Factual Background and Procedural History
Consol operates the Dilworth Mine, an underground coal mine in Greene
County, Pennsylvania. On January 1, 1990, the Dilworth Mine initiated the
Program, which is attached as an appendix to the judge's decision. 14 FMSHRC
at 365-67, App . A. The Program directs that each employee report to
management any incident resulting in personal injury. 2 The Mine's previously
adopted safety rules also require employees to report all injuries. 3
Step I of the Program consists of designating as "High Risk" any
employee who experiences four injuries in 18 working months. Such an employee
receives counseling from Consol 's management. If the employee at Step I works
12 months without experiencing an additional inj ury, he clears his record and
leaves the Program; the employee reaches Step II if he incurs an additional
injury within the 12 months. The employee at Step II is counseled, suspended
from work for two days without pay, and required to attend a special awareness
session. That employee leaves the Program if he works 12 months without
experiencing further injury; if the employee experiences an inj ury within t he
12 months , he reaches Step III. At Step III, the employee is suspended with
intent to discharge. 14 FMSHRC at 365-66, App . A !! 3-5.
On January 23, i990, Dilworth employees Larry Swift, Randy Cunningham
and Mark Snyder, who were members of the United Mine Workers of America
("UMWA") and safety committeemen at the mine, filed a discrimination complaint
with the Department ·of Labor's Mine Safety and Health Administration ("MSHA")
alleging that implementation of the Program penalized miners and restricted
them from reporting all accidents. See 30 U.S.C. § 815(c)(2). Following its
investigation, MSHA determined that Consol had not violated the Mine Act and
the Secretary of Labor declined to prosecute. Swift, Snyder and Cunningham
pursued their claim with private counsel. They filed a discrimination
complaint on behalf of themselves and all Dilworth employees with the
Commission on July 20, 1990, pursuant to section 105(c)(3) of the Mine Act .
30 U.S.C. § 815(c)(3). At the hearing before Judge Melick, the miners argued
that the Program violated section 105(c)(l) of the Mine Act on its face, in
its motivation, and as it was applied.

2

The Program provides at paragraph 2:
Each employee continues to be obligated to report to Management any
work related incident which results in personal injury to the
employee and to complete a Report of Personal Injury (RPI) for each
such injury.

14 FMSHRC at 365, App. A ! 2.
3

The Dilworth Mine safety rules provide at paragraph 28: "All
employees must report to management, each day, any injury that has occurred on
mine property." Ex. R-2.

202

The judge found that reporting mine injuries is a protected right under
the Mine Act. 14 FMSHRC at 363. The judge concluded that the Program was
discriminatory on its face. He determined that, by subjecting Consol's
employees to suspension and discharge based upon the filing of reports of
personal injury, the Program inhibited the reporting of mine injuries and, in
so doing, constituted illegal interference with such protected activity. lJl.
Given this ruling, the judge did not consider complainants' alternate theor1. . ·
of violation. He ordered Consol to "cease and desist from implementation of
any disciplinary action" under the Program and to expunge from all recorda any
references to disciplinary action taken under the Program. Id. at 364.
The Commission granted Consol's petition for discretionary review,
permitted Peabody Coal Company ("Peabody") to participate as amicus curiae,
and heard oral argument in the matter .
II.

Disposition of Issues
A.

Parti~s'

Ar&UI!lents

On review, Consol .argues that the Program is consistent with the aafaty..
purposes of the Mine Act. Consol asserts ·that the judge erred in findi1'g a
violation in the absence of any discriminatory motivation. Consol cont.en&.
that, even if it could have violated the Act absent unlawful intent, the jud19
failed to consider legitimate safety interests in accident prevention t!Ml~ ·
motivated Consol to adopt the Program. Consol argues that the judge failed t~
consider its affirmative defense -- that it would have taken the action• at
issue for reasons unrelated to protected activity . Consol also asserts that ·
the judge made no finding that any of the accident reports under the Program
involved protected activity under section lOS(c)(l) of the Mine Act .

Amicus Peabody argues that the judge's decision is contrary to the
purposes of the Mine Act, which makes safety a primary concern and impo•es the
responsibility to abate unsafe conditions on both operators and miners.
Peabody contends that the judge's analysis is inconsistent with the
Commission's case law, under which a showing of improper motivation is
required to sustain a discrimination complaint. 4
The complainants argue generally in support of the judge's decision.
They argue that the Program violates section lOS(c)(l) because it interfe;"e&
with accident reporting. They further assert that the Program was
discriminatorily motivat'ed to inhibit reporting of accidents and that it was
instituted in response to the safety committee's complaints.
4

In discussing the arguments of Consol and Peabody on review, we refer
to them collectively as "the operators." Amicus Peabody contends in its
supplemental memorandum that the judge's decision conflicts with state laws
that decertify unsafe miners. We do not reach this issue because it is
outside the scope of Consol's petition for review and was not first presented
before the judge. 30 U.S.C. § 823(d)(2)(A)(iii).

20 3

B.

Overview

We first consider whether a miner's reporting of injuries to an operator
constitutes protected activity and whether the Program is faci~lly ·
discriminatory, apart from its motivation. Next, we address the issues of
motivation for establishing the Program and the Program's application to
individual miners.
C.

Protected Activity

The Mine Act prohibits discrimination against miners for exercising any
protected right including filing a complaint, testifying in a Mine Act
proceeding and instituting a proceeding under the Act. 5 The general
principles applicable to analysis of discrimination under section lOS(c) of
the Mine Act, formulated primarily for analysis of particular acts of
discrimination against individuals, are well settled and have become known as
the "Fasula-Robinette" test. See Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHR.C 2786, 2797 -800 (October 1980), rev'd on otber
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHR.C
803, 817-18 (April 1981). In order to establish a prima facie case of
discrimination under that analysis, 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
s

Section 105(c)(l) of the Mine Act provides:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to this
Act because such miner, representative of miners or
applicant for employment has filed or made a complaint
under or related to this [Act], including a complaint
notifying the operator or the operator's agent, or the
representative of the miners at the coal or other mine
of an alleged danger or s~fety 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 this [Act) .

204

protected activity.

~.

We affirm the judge's conclusion that a miner's reporting of injuries to
an operator constitutes protected activity. Section 2(e) of the Act provides
that "operators of ... mines with the assistance of the miners have the
primary responsibility to prevent the existence of [unsafe and unhealthful]
conditions and practices in such mines. " 30 U.S.C. § 801(e) . In order to
carry out this responsibility, mine operators need to know about unsafe
conditions that cause accidents and injuries. Further, accurate information
must be gathered by operators in order to comply with the Secretary's
regulations at 30 C.F.R. Part 50 (1993), requiring operators to file with MSHA
reports of all accidents and injuries that occur at mines. Operators can be
fully informed about accidents and injuries only with the cooperation of
miners. Therefore, taking adverse actions against miners for their reporting
of injuries would restrict the free flow of information and compromise
accurate reporting and mine safety.
We reject the operators' contention that the act of reporting a personal
injury would qualify as protected activity only if the report contains a
safety complaint; this approach takes too narrow a view of such reports. The
legislative history of the Act makes clear the intent of Congress that
protected rights are to be construed expansively. See S. Rep. No. 181, 95th
Cong . , 1st Sess ·' 36 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 624 (1978) ("Legis.
Hist.").
The right to report injuries, however, carries with it a corresponding
responsibility that miners report injuries and accidents. The legislative
history of the Act shows that Congress provided protection to miners against
discrimination in order to encourage their active role in enhancing mine
safety:
If our national mine safety and health program
is to be truly effective, miners will have to play an
active part in the enforcement of the Act . ... [I]f
miners are to be encouraged to be active in matters of
safety and health, they must be protected against any
possible discrimination which they might suffer as a
result of their participation.
Legis . Hist. at 623. Moreover, the right to report injuries does not include
a protected right to incur or cause injury.
D.

Whether the Program is Facially Discriminatory
1.

Introduction

Central to proving a case of discrimination under section lOS(c)(l) is
the determination of unlawful motive. The Mine Act prohibits retaliatory
conduct or discrimination that is motivated by a miner's exercising any
protected right . Nevertheless, rare situations have arisen in which proof.

205

that adverse action was improperly motivated has not been required. The
Supreme Court has permitted a showing of facial discrimination under .section
8(a)(3) of the National Labor Relations Act ("NI.RA"), 29 U.S.C. § 158(a)(3):
"Some conduct ... is so 'inherently destructive of employee interests' that it
may be deemed proscribed without need for proof of an underlying improper
motive." NLRB v. Great Dane Trailers, 388 U.S. 26, 33 (1967)(citations
omitted). The Commission found in UMWA and Carney y. Consolidation Coal Co.,
1 FMSHRC 338, 341 (May 1979), that an operator's business policy was facially
discriminatory. There, the Commission found that, under section llO(b) of the
Coal Act (30 U.S.C. § 820(b)(l976)(amended 1977)), the predecessor to section
105(c), a company policy requiring union safety committeemen to obtain
permission from management before leaving work to perform safety duties was
unlawful because it impeded a miner's ability to inform the Secretary of
alleged safety violations. See also Simpson y. FMSHR.C, 842 F.2d 453, 462-63
(D.C. Cir. 1988)(when mine conditions intolerable, 'o perator motive need not be
proven to establish constructive discharge). Cf. Secretary on behalf of Price
and Vacha v. Jim Walter Resources. Inc .• 12 FMSHRC 1521, 1532-33 (August
1990)(held that operator's policy was not facially discriminatory).
To establish that a business policy is discriminatory on its face, a
complainant must show that the explicit terms of the policy, apart from
motivation or any particular application, plainly interfere with Mine Act
rights or discriminate against a protected class. See Price and vacha, 12
FMSHRC at 1532 . One~ a policy is found to be discriminatory on its face, an
operator may not raise as a defense lack of discriminatory motivation or valid
business purpose in instituting the policy. Compare Price and Vacba, 12
FMSHRC at 1532-33 with Price and Vacha, 10 FMSHRC 896, 907-08 (July
1988)(ALJ) .
When reviewing a claim of facial discrimination, the Commission has
stated:
"The Commission does not sit as a super grievance
board to judge the industrial merits, fairness,
reasonableness, or wisdom of [a challenged business
program or policy) apart from the scope and focus
appropriate to analysis under section .105(c) of the
Mine Act." Our limited purpose is to focus simply on
whether the [program] or enforcement of some component
thereof conflicts with rights protected by the Mine
Act.
Price and Vacha, 12 FMSHRC at 1532 (citation omitted) .
2.

Facial Analysis of the Program

We address the issue of whether the Program, as alleged by the
complainants, was "facially discriminatory to themselves and to all other
miners" (14 FMSHRC at 362), and therefore interfered with Mine Act rights.
The Program explicitly requires the reporting of personal injuries and the
Dilworth Mine safety rules additionally require employees to report all
injuries. These requirements, on their face, are consistent with the Mine

206

Act's goals of encouraging miners to report accidents and injuries. Under the
legislative history of the Act, the reporting of an injury is equally the
miner's responsibility as it is his right. The Program does not, as asserted
by complainants, impose or threaten discipline for reporting injuries.
Rather, it imposes discipline for incurring a number of injuries. Further,
all miners at Dilworth are subject to the Program; it does not single out for
special treatment particular workers or classes of workers. Thus, the
Program's terms on their face do not discriminate against miners who report
injuries, nor do they interfere with miners' rights to report injuries.
The judge concluded that the Program interferes with Mine Act rights by
"creat[ing] an obvious and persuasive disincentive to report injuries." 14
FMSHRC at 364. The judge reasoned that "[s]ustaining an injury and the
reporting of the injury are ... inextricably interrelated." Id. As a matter
of law, we reject the judge's legal inference and ultimate conclusion. 6
Reporting and sustaining injuries, in general and under the Program, are
distinct events and can involve different individuals. Indeed, the judge
recognized that sustaining injuries is not protected activity under the Mine
Act. Id. As noted earlier, the Program continued the requirement under the
company's rules that all injuries be reported.
Under the judge's reasoning, any program that penalizes injuries
sustained, even a program that is based on fault, would chill accident
reporting. See 14 FMSHRC at 363-64. 7 The complainants, however, effectively
concede that, absent inclusion of blameless accidents, the Program may be
facially lawful. See Oral Arg. Tr. 52-53. Nevertheless, the complainants
have not shown that the inclusion of no-fault injuries in the Program
specifically contravenes t~e Mine Act. 8
6
The judge's analysis is based on the express terms of the Program; he
did not base his conclusion that the Program interfered with Mine Act rights
on any factual findings nor discuss any evidence in the record as to whether
reporting was encouraged or discouraged under the Program. The judge,
consistent with Commission precedent (~Price and Vacha, 12 FMSHRC at 1533;
Carney, 1 FMSHRC at 341), did not consider the subjective testimony of
individual miners to determine whether the allegedly discriminatory employment
action interfered with Mine Act rights.

7

The Program is virtually no-fault, i.e., a miner is charged with an
inJury even if blameless in the causation of the accident. In paragraph No.
8, however, management reserves the right to exclude injuries in the "rare
situation" when management determines that there was "absolutely no
cuipability on the part of the injured employee" and when such exclusion
appears "to be in the best. interest of attaining a safe working environment
for all employees at the mine." . 14 FMSHRC at 367, App. A~ 8.
8

The parties disagree on the merits of a no-fault injury reduction
program. This issue is appropriately .resolved in collective bargaining and
the grievance/arbitration process. See, ~. UMWA on behalf of James Rowe v.
Peabody Coal Co., 7 FMSHRC 1357, 1364 (September 1985), aff'd sub nom. Brock
on behalf of Williams v. Peabody Coal Co., 822 F.2d 1134 (D.C. Cir. 1987).

207

In Secretary on behalf of Pack v . Maynard Branch Dredging Co., 11 EMSHRC
168, 172 (February 1989), aff'd, 896 F.2d 599 (D.C . Cir. 1990), the Commission
rejected a similar argument as to the chilling of r eporting, raised against a
company policy that required employees to report dangerous conditions to the
company. The Secretary asserted that such a policy would intimidate miners
from exercising their rights under sections 103(g) or 105(c) of the Act . Id.
at 172-73. The Commission. held that the operator was· entitled to initiate
such a policy that called for miner participation in the maintenance of
safety. .I.!1. As Commissioner Backley stated in Pack, a "fundamental goal of
the Act [is) to ensure that every miner does all that he can to make the work
environment safe . " .I.!1. at 174 (concurring in part and dissenting in part).
Making the work environment safe requires the accurate reporting of injuries.
For the reasons set forth above, we hold that Consol's Program , on its
face, does not violate the Mine Act.
E.

Issues Remanded

The foregoing conclusion does not dispose of the case . Because the
judge did not reach the issues of whether the initiation of the Program was
discriminatorily motivated and whether the Program was subsequently applied in
a discriminatory manner,
we remand for his consideration of these issues. We
\
provide the followirtg guidance for the judge and parties.
1.

Motivation for Instituting the Program

In Price and Vacha, the Commission indicated that discriminatory motive
would invalidate a policy that is otherwise facially lawful. 12 FMSHRC at
1532-33. The Pasula -Robinette test provides the appropriate framework for
analyzing the reasons for Consol's adoption of the Program. See Pasula, 2
FMSHRC at 2797-800; Robinette, 3 FMSHRC at 817-18 .
Under the Pasula-Robinette test, an operator may rebut a prima facie
case of discrimination by showing either that no protected activity occurred
or that an adverse a ction was not motivated in any part 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 . Id . See also, ~. Eastern Assoc .
Coal Corp. v. F'MSHRC, 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, 195-96 (6th Cir. 1983)(specifically approving the Commission's
Fasula-Robinette test) . Cf. NLRB v. Transportation Management Cor:p., 462 U.S.
393, 398-403 (1983) (approving nearly identical test under National Labor
Relations Act) .
The judge did not make express findings as to Consol's motivation for

20 8

initiating the Program - - whether it was to reduce the high injury rate, to
discourage accident reporting, or to retaliate against the mine safety
committeemen's filing of safety complaints. We direct the judge to make
findings and conclusions as to whether the initiation of the Program was, even
in part, discriminatorily motivated.
If the judge finds unlawful motivation, he shall further analyze whether
Consol, nevertheless, presented a successful Pasula-Robinette affirmative
defense -- i.e., showed that it also initiated the Program to help reduce
accidents and would have done so in any event for safety purposes alone. 9
If Consol fails to sustain its affirmative defense, a violation is
proven. If the judge finds no evidence of discriminatory motivation in the
establishment of the Program or if Consol sustains its affirmative defense, he
shall proceed to address whether the Program was applied in a discriminatory
manner.
2.

Application of the Program

The question before the judge will be whether the Program was specifically applied in a disparate way to individual miners or classes of miners in
contravention of the Mine Act. See Price and Vacha, 12 FMSHRC at 1533-36.
(An example of such treatment would be exclusion from the Program of an injury
to one miner and inclusion of similar injuries to another miner.) We note
that, by itself, hostility of miners to the Program is not sufficient to prove
the existence of a violation. Id. at 1533 . The judge shall make all findings
necessary to dispose of application issues within the Pasula-Robinette
framework.

9

We note the judge's finding that, during the 1980's, before the
adoption of the Program, the Dilworth Mine had the worst safety record of
Consol's Eastern Division. 14 FMSHRC at 362. Consol refers to evidence in
the record that it asserts represents a decline in the frequency and severity
of injuries at Dilworth. C. Br. at 10-11. To the extent that the judge can
infer motivation from the effect of the Program, he should consider this
evidence. Counsel for complainants at oral argument attributed the improved
safety record, in part, to extra care taken by employees as a result of the
Program. Oral Arg . Tr . 47-48.

209

III.

Conclusion
For the reasons set forth above, we reverse the judge 's determination
that the Program was facially unlawful. We remand for his consideration of
'"'-ther Consol was improperly motivated in instituting the Program and, if so,
whether it &ustained its affirmative defense. If the judge finds no
di•criminatory motivation or if Consol sustains its affirmative defense, he
ahall addre&s whether Consol applied the Program in a discriminatory manner .
Accordingly, this matter is remanded for further proceedings on this record
coru11stent with this opinion .,
·

Arlene Holen, Chairman

c--~·---·
. . -·

210

Commissioner Doyle, concurring in part and dissenting in part:
I concur with my colleagues in affirming the administrative law judge's
determination that the complainants engaged in activity protected under the
Mine Act when they reported injuries to their employer, Consolidation Coal
Company ("Consol"). Slip op. at 4-5. I must, however, respectfully dissent
from their determination that Consol's Program for High Risk Employees (the
"Program") is not discriminatory on its face. I would also affirm the judge's
decision on the basis that the Program inhibits the exercise of Mine Act
rights in violation of section 105(c).
Under the Mine Act, operators are required to report all accidents and
occupational injuries, as those terms are defined at 30 C.F.R. §50.2, to the
Mine Safety and Health Administration ("MSHA") . To fulfill that obligation,
operators rely, to a great extent, on reports from their employees of such
occurrences. It is that reporting to Consol of miners' injuries that is the
"protected activity" underlying this complaint of discrimination.
Consol's Program requires each employee to report to management each
work related incident that results in his injury and to also file a "Report of
Personal Injury." 14 FMSHRC 365-66, App. A~ 2. An employee experiencing four
injuries in eighteen months is designated a "High Risk Employee" and is
enrolled in the Program. Id. at , 3. Another injury within twelve months
subjects the employee to suspension. Id. at , 4. If an additional injury is
suffered within the following twelve months, the employee is subject to
suspension with intent to discharge. Id. at ! 5. Those causing accidents or
inJuries are not placed in the program unless they, t oo, are injured. Oral
Arg. Tr. at 9 - 12, 67.
The Complainants, filing on their own behalf and on behalf of all miners
subject to the Program, claimed, among other things, that the Program was
initiated to inhibit the accident reporting required by 30 C.F.R. Part 50 and
that it was per se violative of section 105(c). Complainants' Post Hearing Br.
at 5 . 1 The judge found that the Program, by subjecting miners to suspension
and discharge, created an obvious disincentive to report injuries and
inhibited and interfered with that reporting. 14 FMSHRC at 363-64. Further,
he found that the Program was discriminatory on its face in violation of
section 105(c). Id. at 364.
As noted by the majority, a program or policy is discriminatory on its
face if its explicit terms, apart from motivation or particular application,
interfere with Mine Act rights or discriminate against a protected class. Slip
op. at 6. Thus, if the Program provided that those engaged in the protected
activity of reporting their injuries were subject to adverse action, it would
be, without question, discriminatory on its face. The Program, albeit less
1

Their other claims were: (1) that the Program was initiated in
retaliation for, and to counteract the effects of, actions by the mine safety
committee to force proper accident and injury reporting to MSHA by Consol; and
(2) that each application of the Program created an individual violation of
section 105(C). The judge did not reach these issues.

211

blatantly, achieves the very same result by requiring each employee to report
his injuries and, on the basis of those injuries, designates him a "High Risk
Employee." He is then placed in the Program.
The judge found that sustaining and reporting injuries were so
"inextricably interrelated" that the two activities could not be separated. 14
FMSHRC at 364. My colleagues , in reversing the judge, characterize this
finding as a "legal inference and ultimate conclusion," which, "[a]s a matter
of law, [they] reject." Slip op. at 7. They state that "[r]eporting and
sustaining injuries, in general and under the Program, are distinct events and
can involve different individuals." Id. While others may also report
accidents, that does not diminish the fact that the Program itself, at
paragraph. 2, states that each individual sustain ing an injury must report that
injury to management and "complete a Report of Personal Injury." 14 FMSHRC at
365, App. , 2. Thus, the Program itself, on its face, inextricably links the
sus't aining and reporting of injuries. That being the case, I agree with the
judge that, on its face, the Program violates section 105(c) of the Mine
Act. 2
Not only is the Program discriminatory on its face in that it provides
for adverse action against those engaged in protected activity but, as the
judge found, its effect is to inhibit the exercise of reporting rights. 3
Congress, in passing .the Mine Act, recognized in section 2(c) the need for
more effective means of preventing death and serious injuries in the nation's
mines. 30 U.S.C. § 801(c). In furtherance of that goal, and to encourage a
more active role by miners, it provided the anti-discrimination provisions of
section 105(c), which protect miners from adverse actions as a result of the
exercise of rights provided under the Mine Act. S. Rep. No. 181, 95th Cong.,
1st Sess. 36 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legis lative History of the Federal
Mine Safety and Health Act of 1977 (1978) ("Le gis. Hist.") at 623. The Senate
report stressed that the anti-discrimination section should be construed
"expansively to assure that miners will not be inhibited in any way in
exercising any rights afforded by the legislation." Legis. Hist. at 624.

2

Citing Oral Arg. Tr. at 52-53, the majority states that Complainants
"effectively concede t hat, absent inclusion of blameless accidents, the
Program may be facially lawfu l. " Slip op at 7. A review of those pages
indicates that Complainants made no such concession. They stated they would
not be troubled by a program that dealt with those engaged in unsafe acts.
Oral Arg. Tr. at 52-53. In any event, the Program does include blameless
accidents.
3
My colleagues note, but do not follow, the factually similar UMWA &
Carney v. Consolidation Coal Co., 1 FMSHRC 338 (May 1979), in which the
Commission found discriminatory the operator's policy of requiring miners to
obtain company permission to perform union safety duties. In reaching its
conclusion, the Commission reasoned that the operator's policy effectively
impeded a miner's ability to exercise his Mine Ac.t rights. Id. at 341.

212

The majority, in reversing the judge, dismisses out of hand his finding
that the Program inhibits and interferes with the exercise of Mine Act
rights. 4 14 FMSHRC 363; Slip op. at 6-7. That finding is, however, supported
by substantial evidence and, under the terms of the Mine Act, must be
affirmed. 30 U.S.C . § 823(d)(2)(A)(ii)(I). Complainant Swift testified that
numerous employees had told him that, because of the Program, they would not
report accidents if they could avoid it. Tr. at 230, 231. He testified
further that he knew of four accidents that had not been reported because of
the Program . Tr. at 232. One employee who injured his back was afraid to
report it for fear of losing his job . Tr. at 224-25. Another employee who
required stitches had to be convinced by Swift to report the accident because
he feared going into the Program. Tr. at 231. Complainant Cunningham
testified that, because he has experienced four accidents, 5 he is now in the
Program, although he lost no time as a result of the incidents. Tr. at 22, 29.
He now feels inhibited about filing accident reports for fear of losing his
job and, i f he sustains another inj ury, he intends to leave the mine without
reporting the accident and see his own doctor. Tr. 28, 31-32. 6
The Program's inhibiti ng effect on injury reporting is uncontradicted in
this record. Thus, because the Program interferes with protected activity,
precisely what section 105(c) was designed to prevent, it is discriminatory.
4

Contrary to the majority's assertion, the Commission did not reject a
similar argument in Pack v. Maynard Branch Dredging Co., 11 FMSHR.C 168
(February 1989). Slip op. at 8. Rather, it found that the record evidence did
not support the argument. 11 FMSHRC at 1 73. In Pack, the company policy
required employees to report all unsafe conditions to their supervisors.
There was no discipline or other adverse action taken against those who
followed the policy. It was Pack's failure to report that caused his
dismissal. The Commission found that "miners being intimidated from
exercising their rights under ... the Mine Act simply is not presented by this
case." Id . Here, the judge found that miners were inhibited from exercising
their Mine Act right to report (14 FMSHR.C at 363 - 64) and adverse action was
taken ~gainst those who did report.
5

In one instance, Cunningham was struck by an elevator door as he
attempted to exit the elevator. His foreman was operating the controls at the
time. Tr . at 23-24. In a second accident, Cunningham was told to enter a
scoop car to assist in locating an oil leak. After pulling levers as
instructed, he was hit in the face by spraying oil and, although he was
wearing safety glasses, oil had to be flushed from his eye. Tr . at 24-25.
6 In Price & Vacha v. Jim Walter Resources. Inc., 12 FMSHR.C 1521 (August
1990), miners opposed an operator's drug testing program because they believed
it cast suspicion of drug use on those being tested and because they saw it as
an invasion of their privacy and an affront to their dignity. Id. at 1526.
The Commission found that "a miner's opposition or hostility" was not
determinative of a program's validity and that adverse action was "not simply
any operator action that a miner does not like." Id. at 1533 . Here, the
Program is not simply one that miners oppose or dislike. The Program
interferes with and punishes their exercise of Mine Act rights.

il.3

In the majority's opinion, the inhibiting effect on Mine Act reporting rights
is apparently irrelevant. Under their analysis, Complainants must prove
either that the Program was discriminatorily motivated or was discriminatorily
applied to individual miners or classes of miners. Slip op. at 7-9. "Some
conduct, however, is so 'inherently destructive of employee interests' that it
may be deemed proscribed without need for proof of an underlying improper
motive." NLRB v. Great Dane Trailers. Inc., 388 U.S. 26, 33 (1967) (citations
omitted). 7
Thus, on the basis that the Program is discriminatory on its face, as
well as on the basis that, on the undisputed record, it has inhibited Consol's
employees in the exercise of their protected right to report injuries, I would
affirm the administrative law judge.

7

The majority states that "under the judge's reasoning, any program that
penalizes injuries sustained, even a program based on fault, would chill
accident reporting." Slip op. at 7. They misconstrue the judge's decision.
Applying his reasoning, only programs that require a miner to report his
injuries, and also provide for adverse action against him based on that report
alone , would be found to inhibit reporting. Fault-based programs focusing on
those causing accidents and injuries, rather than on those sustaining or
reporting them, would not be proscribed. This would be true even if, in some
instances, the individual causing an injury were also the one reporting it,
because the driving force of such a program would be unsafe conduct, not
injury reporting. Apparently the program of Amicus Curiae, Peabody Coal
Company, is based on unsafe conduct, not on injuries sustained. Oral Arg. Tr.
at 27-29, 33, 36, Peabody Reply Br~ at 3. Under the judge's reasoning, SUfh · a
program would not chill reporting nor would it be discriminatory on its face.

214

Distribution
Daniel E. Rogers, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
William B. Manion, Esq.
United Mine Workers of America
Region I
321 Washington Trust Bldg .
Washington , PA 15381
for Miners
Ronald E. Meisburg, Esq .
Smith, Heenan & Althen
1110 Vermont Avenue, NW
Suite 400
Washington , D.C. 20005
for Amicus, Peabody Coal
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

21 5

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0 .C. 20006

Febr ua ry 22, 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
Docket No. WEVA 94-26
v.
TUG VALLEY COAL PROCESSING,
Respondent

BEFORE:

Holen, Chairman; Backley and Doyle, Convnissioners 1

BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. S 801 et seq. (1988)(the "Mine Act"), Chief
Administrative Law Judge Paul Merlin issued a Decision Approving Penalty and
Order of Dismissal on January 13, 1994. Noting that Tug Valley Coal
Processing ("Tug Valley") had paid the proposed penalty, the judge reviewed
the appropriateness of the penalty in relation to the statutory criteria in
section llO(i) of the Act, 30 u.s.c. § 820(i), and dismissed the proceeding.
Tug Valley timely filed a petition for discretionary review of the
judge's dismissal. Tug Valley asserts, inter alia, that, because it paid the
penalty th~ough "genuine mistake," it should not be precluded from maintaining
a civil penalty proceeding. Pet. at 7 . Tug Valley further contends that the
judge committed a prejudicial error of procedure in dismissing the proceeding
based upon the "ex parte representations of the Mine Safety and Health
Administration ("MSHA")." Pet. at 1-2, 10.
"[T]he Commission has held that an operator's payment of a civil penalty
proposed for a violation extinguishes the operator's right to contest the fact
of violation." Westmoreland Coal Co., 11 FMSHRC 275, 276 (March 1989), citing
Old Ben Coal Co., 7 FMSHRC 205, 209 (February 1985). However, "where a civil
penalty was paid by genuine mistake, the operator's right to contest the
violation may not be lost." Id., citing Old Ben Coal Co., 7 FMSHRC at 210
n.6 .

1Pursuant to section 113(c) of the Mine Act, 30 u.s.c. S 823(c), we have
designated ourselves as a panel of three members to exercise "all of the
powers of the Commission."

216

The record in this proceeding does not contain sufficient information
for the Commission to determine whether Tug Valley's payment of the penalty
was a "genuine mistake" as it contends in its petition. Further proceedings
are necessary to add.r ess Tug Valley's assertion and to determine what relief,
if any, is appropriate.
Accordingly, Tug Valley's petition is granted, the judge's dec ision is
vacated, and the matter is remanded for further proceedings consistent with
this order. 2

Arlene Holen, Chairma n

Richard v . Backl e y, Commis sion~

2Tug Valley has not offered any support for its allegation that the judge
dismissed the case based on an ex parte communication from MSHA. Pet. at 8-10.
It is evident from the record that he based his dismissal on Tug Valley's
payment of the penalty assessment, which is a matter of public record. see
Commission Procedural Rule 82, 58 Fed. Reg. 12158, 12173-74 (March 3, 1993),
to be codified at 29 c.F.R. S 2700.82.

21 7

;,

Distribution
Thomas L. Clarke, Esq.
Tug Valley Coal Processing Co.
50 Jerome Lane
Fiarview Heights, IL 62208
Pamela S. Silverman, Esq .
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd . , #516
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W . , Suite 600
Washington, D.C. 20006

218

J

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0.C. 20006

February 23, 1994

SECRETARY OF LABOR,
MINE .SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 93-114-M

v.
YAGNER SAND & STONE, INC.
BEFORE :

Holen, Chairman; Backley and Doyle, Commissioners 1
ORDER

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988). On October 22, 1993,
Chief Administrative Law Judge Paul Merlin issued an Order of Default to
Wagner Sand & Stone, Inc. ("Wagner Sand"), for failing to answer the Secretary
of Labor's proposal for assessment of civil penalty or the judge's August 20,
1993, Order to Show Cause . The judge ordered the payment of a civil penalty
of $294. For the reasons that follow, we vacate the default order and remand
this case for further proceedings.
In a letter to the judge dated January 14, 1994, William Wagner,
President of Wagner Sand, asserts that the parties had agreed to settle this
proceeding. Wagner attached a copy of a Joint Motion to Approve Settlement
and to Dismiss (•Joint Motion•) , dated October 7, 1993. 2
Wagner further asserts that after the October 22, 1993, default order
was issued, the Secretary's counsel conceded that a mistake had been made and
advised him that it would be corrected. Wagner states that no· correction has
been made and he seeks relief from default.

1 Pursuant to section 113(c) of the Mine Act, 30 U. S.C. § 823(c), we have
designated ourselves as a panel of three members to exercise the powers of the
Commission.
2

The Joint Motion, however, references two citation numbers in another
proceeding involving Wagner Sand (Docket No. SE 93-115-M); the judge subsequently
issued an order approving settlement of the citations in that docket. The Joint
Motion is silent as to the citations in this proceeding.

219

The judge's jurisdiction over this case terminated when bis decision ·was
issued on October 22, 1993. Commission Procedural Rule 69(b), 58 Fed. Reg.
12158, 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 filing a petition for discretionary review
within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). Wagner Sand did not file a timely petition for discretionary
review within the 30-day period and the Commission did not .fil:Yl sponte direct
this C!Se for review. Thus, the judge's decision became a final decision of
the Commission 40 days after its issuance. 30 U.S.C; § 823(d)(l). Under
these circumstances, we deem the January 14, 1994, letter to be a request for
relief from a final Commission decision incorporating a late-filed petition
for discretionary review. See,~. Island Creek Coal Co., 15 FMSHRC 962,
963 (June 1993).
Under Fed. R. Civ. P. 60(b)(l) & (6), the Commission has afforded relief
from final judgments on the basis of inadvertence , mistake, and other reasons
justifying relief. See, L&,._, Klamath Pacific Corp,, 14 FMSHR.C 535, 536
(April 1992). It appears from the record that Wagner Sand and the Secretary
may have attempted to settle the citations in this proceeding, as well as
those in another, and that confusion may have arisen over the citation a~d
docket numbers. On the basis of the present record, however, we are unable to
evaluate the merits-. of Wagner Sand's position. In the interest of Justice, we
remand the matter to the judge, who ·shall determine whether default is
warranted . See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990) .
For the reasons set forth above, we reopen this matter, vacate the
judge's default order, and remand this matter for further proceedings.

Arlene Hole~~rman

~/
Richard V. Backley,

Commissio~er

~~t1.~

Joyce A. Doyle, CommiSSiOtl

220

Distribution
William S. Wagner
Wagner Sand & Stone, Inc.
213 Mountain Circle Drive
Lenoir, North Carolina 28645
Rafael Batine, Esq.
Office of the Solicitor
U.S . Department of Labor
1373 Peachtree St., N.E.
Room 339
Atlanta, GA 30367
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N. W., Suite 600
Washington, D.C. 20006

221

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

20006

February 23, 1994

SECRETARY OF LABOR
MINE ,SAFETY AND HEALTH
ADMINISTRATION
V.

T & F SAND & GRAVEL, INC.

Docket Nos . CENT 91-215-M

REEDY COAL COMPANY, INC.

KENT 92 - 303

KINKAID STONE CO.

l.AKE 92-199-M

KEYSTONE COAL MINING CORP.

PENN 91 -960

PENNSYLVANIA ELECTRIC CO.

PENN 91-1011

KEYSTONE COAL MINING. CORP .

PENN 91-1015

KEYSTONE COAL MINING CORP.

PENN 91 - 1017

KEYSTONE COAL MINING CORP.

PENN 91-1340

SHANNOPIN MINING CO.

PENN 92-385

JIM WALTER RESOURCES, INC.

SE 92 -7 9

JIM WALTER RESOURCES, INC .

SE 92-208

MID -CONTINENT RESOURCES, INC.

WEST 90-383

TARMAC CALIFORNIA, INC.

WEST 91 -498 -M

EASTSIDE ROCK PRODUCTS

WEST 92-318-M

CONSOLIDATION COAL CO.

WEVA 91-139

ISLAND CREEK COAL CO.

WEVA 91-1231

CONSOLIDATION COAL CO.

WEVA 92-325

222

BEFORE:

Holen, Chairman; Backley and Doyle, Commissioners 1
ORDER

BY THE COMMISSION:
!n these civil penalty proceedings arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C . § 801 et seq. (1988)("Mine Act"), the
Secretary of Labor proposed penalties for citations issued to the mine
operators listed above ("Operators"). In each proceeding, the presiding
administrative law judge, in accordance with the Commission's decision in
Drummond Co .. Inc., 14 FMSHR.C 661(May1992), remanded the proposed penalties
to the Secretary for recalculation. Under Drummond, penalties were to be
recalculated in accordance with the Secretary's regulations at 30 C.F.R. Part
100 without reference to or use of the "excessive history" provisions
contained in his Program Policy Letter No. P90-III - 4 (May 29, 1990).
On January 14, 1994, the Secretary filed with the Com.mission an Amended
Motion to Reinstate Civil Penalty Proceeding ("Motion to Reinstate") in each
proceeding. The Secretary asserts that each proceeding was "incorrectly
remanded back to the Secretary since the case did not involve the issue of
excessive history." The Secretary asks that these cases be reinstated to the
Commission's active docket and that the Operators be granted the right to
request hearings. No opposition has been received.

The judges' jurisdiction in these matters terminated when their Orders
of Remand and Dismissal were issued. Com.mission Procedural Rule 69(b), 58
Fed. Reg. 12158, 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 within 30 days of a decision's issuance. 30 U.S.C. §
823(d)(2); 29 C.F.R. § 2700.70(a). The Secretary did not file timely
petitions for discretionary review within the 30-day period and the Commission
did not sua sponte direct review of these cases. Thus, the judges' orders
dismissing these proceedings became final decisions of the Commission 40 days
after their issuance. 30 U.S.C. § 823(d)(l). Under these circumstances, we
deem the Motions to Reinstate to be requests for relief from final Commission
decisions incorporating late-filed petitions for discretionary review. See,
~. Island Creek Coal Co., 15 FMSHR.C 962, 963 (June 1993).
Guided by Fed. R. Civ. P. 60(b)(l) & (6), the Commission has afforded
relief from final judgments on the basis of inadvertence, mistake, and other
reasons justifying relief. See, .!L..&a-· Klamath Pacific Corp., 14 FMSHR.C 535,
536 (April 1992). It appears that the penalties proposed by the Secretary in
these matters may not have been computed in accordance with the Secretary's
1

Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have deslgnated ourselves as a panel of three members to exercise the powers
of the Commission.

223

excessive history policy and, therefore, may have been improperly remanded to
the Secretary under Drummond.
Accordingly, we reopen these proceedings and remand them to the Chief
Administrative Law Judge . He shall reinstate them if he determines that they
were improperly remanded to the Secretary .

Arlene ·Holen ,. Chairman

224

Distribution
Richard Schroeder, Owner - WEST 92-318-M
Eastside Rock Products
P.O. Box 1324
Issaquah, WA 98027

Robert A. Cohen, Esq .
Office of the Solicitor
U.S . Department of Labor
4015 Wilson Blvd., 4th Floor
Arlington , VA 22203

Elizabeth Chamerlain, Esq. - WEVA 91-139
Consolidation Coal Company
1800 Washington Road
Pittsburgh , PA 15241

Mr . Rick Follmer
CENT 91-215-M
T & F Sand & Gravel, Inc.
Rt. 1, Box 106
Elm Creek, NE 68836

Marshall S. Peace, Esq. - . WEVA 91-1231
Island Creek Coal Company
P.O. Box 11430
Lexington, KY 40575

Willis Ring
KENT 92-303
Reedy Coal Company, Inc .
P.O. Box 7
Coeburn, VA 24230
Mr. William Pautler, Mgr . - LAKE 92-199
Kinkaid Stone Company
RR 2, Box 102
Ava, IL 62907
William M. Darr, Esq. - PENN 91-960, et al.
Keystone Coal Mining Corp.
655 Church Street
Indiana, PA 15701
Kelly A. Tomblin, Esq. - PENN 91- 1011
Pennsylvania Electric Company
1001 Broad Street
Johnstown, PA 15907
Joseph A. Yuhas, Esq. - PEHN 92-385
Shannopin Mining Company
RD Ill, Box 40
Barnesboro , PA 15714
R. Stanley Morrow , Esq. - SE 92- 79 ,. et al.
Jim Walter Resources , Inc.
P.O. Box 133
Brookwood, AL 35444
Edward Mulhall, Jr., Esq. - WEST 90- 383
Delaney & Balcomb
Drawer 790
Glenwood Springs, CO 81602

Mr . Jack L. Cork.hill, V.P. - WEST 91- 498- M
Tarmac California, Inc .
77-564 Country Club Drive, Suite 200
Palm Desert, CA 92260
225

Chief Administrative Law Judge
Paul Merlin
Federal Mine Safety & Health
Review Conunission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

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

20006

February 24, 1994

SECRETARY OF LABOR,
MINE . SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 93-86

v.

HICKORY COAL COMPANY

BEFORE:

Holen, Chairman; Backley and Doyle, Commissioners 1
ORDER

BY THE COMMISSION:
In this civil penalty proceeding, arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seg. (1988)("Mine Act"), the
Secretary of Labor proposed penalties for three citations issued to Hickory
Coal Company ("Hickory"). On January 18, 1993, the Secretary filed with
Administrative Law Judge Roy J. Maurer a Motion for Decision and Order
Approving Settlement, on behalf of the parties. The Secretary's motion stated
that he had originally proposed penalties totaling $112. It stated further
that the Secretary had agreed to vacate one citation and that Hickory had
agreed to pay civil penalties totaling $40 for the remaining two citations.
The judge approved the settlement motion by decision dated January 24, 1994.
Also on January 24, 1994, apparently after he issued the decision, the
judge received from Hickory a Statement in Opposition to the proposed
settlement. Hickory's opposition did not dispute the amount of the proposed
settlement, but stated that it was "far from agreement [with] statements made
by the Secretary's attorney in the motion .... " Hickory contended that the
motion incorrectly states that it was negligent with respect to the
violations.

1

Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves as a panel of three members to exercise the powers
of the Commission.

226

The judge's j urisdic ti on in this matter terminated when his Dec is.ion
Approving Settlement was issued on January 24, 1993. 2 Commission Procedural
Rule 69(b), 58 Fed. Reg. 12158, 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 within 30 days of the decision's issuance.
30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem Hickory's Statement in
Opposition to be a timely filed Petition for Discretionary Review, which we
grant . .
"Settlement of contested issues is an integral part of dispute
resolution under the Mine Act." Pontiki Coal Coro., 8 FMSHR.C 668, 674 (May
1986). Section llO(k) of the Mine Act provides that no contested proposed
penalty "shall be compromised, mitigated, or settled except with the approval
of the Commission." 30 U.S.C. § 820(k). "[T]he record must reflect and the
Commission must be assured that a motion for settlement, in fact, represents a
genuine agreement between the parties, a true meeting of the minds as to its
provisions." Peabody Coal Co., 8 FMSHR.C 1265, 1266 (September 1986) .
Apparently, Hickory does not dispute that it agreed to settle the
proposed penaltie~ for the amount approved by the judge. There is
disagreement between the parties, however, as to the terms upon which the
settlement is acceptable to each. Because Hickory was not a signatory to the
settlement agreement, further consideration by the judge is necessary. See
Peabody, 8 FMSHRC at 1267.
For the reasons set forth above, we vacate the judge's decision
approving the settlement. We remand this matter to the judge for appropriate
further proceedings.

Arlene Holen, Chairman

2

By letter dated January 26, 1994, the judge advised Hickory that his
jurisdiction had terminated.

227

Distribution
William A. Kutsey
Hickory Coal Company
RD #1 , Box 479
Pine Grove, PA 17963
Pedro P. Forment , Esq .
Office of the Solicitor
U.S . Department of Labor
14480 Gateway Bldg .
3535 Market St.
Philadelphia, PA 19104
Administrative Law Judge Roy J. Maurer
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

.

228

ADMINISTRATIVE LAW JUDGE DECISIONS

PBDBRAL JallB SUB'l'Y Alm BBAL'1'B unn CoQTSSXO•
OFFICE OF ADMINISTRATIVE LAY JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

'FEB 2 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

v.

CONSOLIDATION COAL COMPANY,
Respondent

CIVIL PENALTY PROCEEDING
:

Docket No. WEVA 93-102
A.C. 46-01455-03966

.. Osage No. 3 Mine '
:

DECISION
Appearances:

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

Before:

Judge Koutras
Statement of the Proceeding

This proceeding concerns proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section llO{a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820{a), seeking civil penalty assessments for
four (4) alleged violations of certain safety standards found in
Part 75, Title 30, Code of Federal Regulations. The respondent
filed a timely answer and a hearing was conducted in Morgantown,
West Virginia. The petitioner filed a posthearing brief, but the
respondent did not. However, I have also considered the oral
arguments made by both parties on the record during the hearing
in this matter.
Issues
The issues presented in this case are (1) whether the
conditions or practices cited by the inspectors constitute
violations of the cited mandatory safety standards, (2) whether
the alleged violations were "Significant and Substantial" (S&S),
(3) whether the alleged violations were the result of an
unwarrantable failure by the respondent to comply with the cited
standards, and (4) the appropriate civil penalties to be assessed
for the violations, taking into account the civil penalty
assessment criteria found in section llO(i) of the Act.

229

Stipulations
The parties stipulated in relevant part to the following
(Exhibit AIJ-1; Tr. 11-12):
1.

The Commission and the presiding Judge have
jurisdiction to hear and decide this matter.

2.

The respondent is the owner and operator of
the subject mine and the operations of the
mine are subject to the jurisdiction of the
Mine Act.

3.

The respondent is a large mine operator and
payment of the maximum civil penalty
assessments for the violations will not
adversely affect its ability to remain in
business.

4.

The inspectors who issued the contested
orders were acting in their official
capacity.

5.

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

6.

MSHA's penalty assessment information
(Exhibit G-1), and violation history reports
(Exhibits G-2 and G-3), may be used in
determining appropriate civil penalty
assessments for the alleged violations.

7.

The subject mine has received prior
section 104(d) (2) orders and remains on the
"d" chain.
Discussion

This case concerns four (4) section 104(d) (2) "S&S" orders
issued by MSHA inspectors at the mine. One of the orders,
No. 3122087, issued on August 6, 1992, by Inspector Richard E.
McDorman, alleging a violation of 30 C.F.R. § 75.316, was settled
by the parties and the respondent agreed to pay the full amount
of the proposed penalty assessment of $3,000. The settlement was
approved from the bench, and my decision in this regard is herein
reaffirmed (Tr. 445-446).
Section 104Cdl (2) "S&S" Order No. 3122095, issued on
August 31, 1992, by MSHA Inspector Richard E. McDorman, cites an
alleged violation of 30 C.F.R. § 75.400, and the inspector

230

described and cited accumulations of coal, coal dust, and float
coal dust, at the following locations:
1.

Butt Conveyor Belt Line take up No. 4 block.
Fine coal, coal dust, & float coal dust 48" x
14" x 14" allowed to accumulate and a bottom
belt roller has turned in these accumulations
until it would not turn in thi~ dry to damp
coal.

2.

Just inby this location, accumulations
measuring 6 ft x 50" x 12 in deep are packed
in under the bottom belt. These
accumulations, fine coal and float coal dust,
are layered, 2 11 to 6" of coal, with a thin
layer of rock dust. This proves that the
accumulations have existed for some time,
they have not been removed, just hidden by
thin 1/ 4" layers of rock dust. The bottom
belt has been hitting and rubbing these
accumulations turning the coal into fine coal
and float coal dust, damp to dry .

3.

Just inby this location fine wet coal and
coal dust 6" x 3 ft x 1 ft and being rubbed
by a bottom belt roller .

4.

The next roller is rubbing accumulations,
damp to dry, 6" x 4 ft x l ft.

5.

The next inby roller is turning float coal
dust, fine and coal that has been dried by
friction, 6" x 3 ft x 1 ft.

6.

The next inby roller is rubbing fine coal
48" x 3 ft x 8".

7.

The next inby roller is frozen and the bottom
belt is rubbing in damp to dry coal dust 4 ft
x 4 ft x 8".

8.

Inby 5 block dry fine coal and float coal
dust under the stationary dolly measures 3 ft
x 6 ft x 4 in.

9.

At 7 block 3 bottom belt rollers in a row
have been turning in damp fine coal, turning
it into coal dust and float coal dust
measuring 3 ft x 2 ft x 4, 6, 10 .
Approximately half of this area does not have
fire suppression over the conveyor belt line.
This presents a fire hazard. Air from this

231

belt line travels to the 7 Butt longwall
section where at least six miners are
working. Persons can receive burns, smoke
inhalation and/or carbon monoxide poisoning
fighting fires. This condition is obvious
and has been allowed to exist for some time.
Mine management could not give an excuse for,
or justify the existence of all the areas of
the accumulations. All of these
accumulations are in a distance of
approximately 350 feet. Ignition sources in
this area include cables, motors, frozen belt
rollers , and the conveyor belt .
Petitioner's Testimony and Evidence
MSHA Inspector Richard McDorman confirmed that he issued the
order after finding accumulations of fine coal, coal dust and
float coal dust at the mine locations cited in the order. He
stated that he made notes and a sketch detailing and describing
the cited conditions, and that he measured the depth of the
accumulations with a three-foot long roof sounding rod. He
confirmed that he\ did not take samples of the coal accumulations,
and he described them as "black, shiny coal dust, float coal
dust" (Tr. 15-24). He also stated that the dampness of the
accumulations ranged "from dry to damp, some of the area was even
wet", and these areas are noted in his notes (Tr. 25).
Mr. McDorman confirmed his "S&S" finding, and he believed
that the accumulations presented a fire hazard. He stated that
the accumulations would contribute to the hazard because "They
were the fuel. You have the air there. You have an ignition
source in the area, and the loose coal, fine coal and float coal
dust is the fuel for the fire" (Tr. 25).
·
Mr. McDorman stated that six men were working on the
section and that the belt was running. If a fire were to occur,
he believed the men would be exposed to smoke inhalation, carbon
monoxide poisoning, possible entrapment, and possible burns
fighting the fire (Tr. 26 ) . He believed an injury was reasonably
likely to occur because of the ignition sources that were
present. He described these sources as the starter box,
electrical motors, cables, and the fact that the belt was rubbing
frozen rollers and turning in coal dust and float coal dust
(Tr. 26-27). He stated that the rollers were "fouled and would
not turn" because the accumulations were packed against them, and
they presented a potential ignition source because the rubbing
action produces heat and "fires have occurred because of a belt
rubbing rollers, belt rubbing the sides of stands" (Tr. 27).
Mr. McDorman confirmed that fire suppression was available
over approximately half of the areas he cited, but it would not

2 32

be available if the accumulations had caught fire at a location
where there was no fire suppression (Tr. 28-33).
Mr. McDorman stated that he based his "high negligence"
finding on the existence of the accumulations and the fact that
they "were extensive and had been allowed to accumulate over some
period of time and had not been adequately cleaned up"
(Tr. 36). He considered the fact that the preshift examiner
should have found the accumulations on the preceding shifts,
reported it, and had them removed. He also considered the fact
that he had previously put the respondent on notice about the
need to address the accumulations problems and had discussed it
with a company representative (Tr. 37).
Mr. McDorman stated that he also based his negligence
finding on the fact that some of the accumulations were
"layered," and this would indic ate that they had existed for some
time. However, he confirmed that he only determined the layering
at one location (No. 2), and did not check for layering at the
other cited locations (Tr. 3 8-40).
Mr. McDorman identified and explained several prior
citations for violations of section 75.400, including one that he
issued on August 11, 1992, three weeks prior to the contested
order in this case (Exhibits G-8 through G-17: Tr. 41-43). He
stated that he discussed the August 11, 1992, violation with
company representative and foreman Dennis Mitchell, and advised
him about the "ongoing problems" with coal accumulations
(Tr. 44, 49-50).
Mr. McDorman stated that no one was cleaning up when he
issued the order and that it took approximately five and one-half
hours to clean up the accumulati ons, and he explained what was
done to abate the order (Tr. 50-58 ) . Mr. McDorman stated that
assistant shift foreman Schrack, who was with him during the
inspection, stated that "he does not see why some of these areas
were not seen and reported. He could not justify the condition".
Mr. McDorman stated that he recorded this statement in his notes
(Tr. 58).
Mr. McDorman believed that the accumulations had existed for
several days because of the layering and depths that he found and
the fact that the accumulati ons consisted of fine coal and coal
dust (Tr. 58-59). He confirmed that he checked the preshift and
onshift books for the belt and found that accumulations had been
recorded for the previous days and had been removed (Tr. 60).
On cross-examination, Mr. McDorman explained the procedures
he followed for measuring the accumulations, and he confirmed
that he did not know how far the face was from the accumulations,
and that it was "at least thirty or forty blocks" away

233

(Tr. 62-67). He confirmed that the existence of any iqnition
sources at the face was of no consequence with respect to his
"S&S" finding (Tr. 67).
Mr. McDorman stated that the accumulations occurred as a
result of coal coming back on the bottom belt. He explained that
"fine coal" sticks to the belt and that scraper boards are placed
at the dumping points to scape the fines off the belt, but they
do not always work properly. The fine coal that sticks to the
belt dries out and falls off and accumulates. The accumulations
that he observed were not the result of a recent spill, and there
were very few lumps of coal (Tr. 68-71).
Mr. McDorman confirmed that he checked for methane and found
none, and carbon monoxide sensors may have been present with the
fire sensors. He confirmed that the belt was runninq and that
the belt bottom rollers that he described were frozen and not
turning and they were in contact with the coal. He did not touch
the rollers to determine if they were hot because the belt was
running (Tr. 73). He observed no smoke and smelled nothing
burning, and he observed no red or reddish brown dust in the
areas (Tr. 74-77).
Mr. McDorman stated that ten percent of the violations he
issued in the past year were unwarrantable failure violations.
In response to a hypothetical question, he stated that if he
found coal accumulations on three successive days he would find
it unwarrantable even though the accumulations had been cleaned
up at the end of each day. He would consider this to be an
existing problem and he would expect the operator to determine
the source of the problem. He would also consider issuing a
section 75.1725(a), violation because of an unsafe condition
{Tr. 81, 84-89).
Respondent's Testimony and Evidence
Irvina L. Schrack, assistant shift foreman, confirmed that
he escorted Inspector McDorman during his inspection. He stated
that the inspector first observed a small coal accumulation at
the belt drive and informed him that the would issue a section
104(a) citation, but after finding heavier accumulations and
rollers turning in coal, he informed him that he was issuing a
section 104(d) (2) order {Tr. 92).
Mr. Schrack estimated that the belt drive was 6,500 feet
from the working lonqwall face. He explained that as the entry
is developed, the belt drive remains at one permanent location as
the belt is extended, and it may remain in place for two and a
half years until the lonqwall is completed and mined out
{Tr. 94).

234

Mr. Schrack agreed that the accumulations were the result of
materials clinging to the bottom belt and being knocked off by
the belt drive, as well as by spills at the belt drive, and coal
being crushed by belt takeup rollers (Tr. 95-97). He explained
the cleanup process and confirmed that five men were used. He
stated that it took a long time because the belt was close to the
roof and presented tight clearances (Tr. 97-98).
Mr. Schrack confirmed that he observed the inspector
measuring the depth of a pile of accumulations by · pushing a stick
into the pile, and he also observed "a couple of rollers I can
recall that were frozen due to haystacks underneath of them". He
could not recall that any rollers needed to be replaced, and he
observed none that were worn. He confirmed that this was the
first time he had escorted Mr. McDorman, and he did not view the
belt during the two days prior to the inspection (Tr. 100-101).
On cross-examination, Mr. Schrack stated that he did not
know how long the accumulations had existed, and he could not
recall making the comment attributed to him by the inspector, but
sated that it'. was possible that he made the statement (Tr. 102).
He confirmed that he was not with the inspector all of the time
because he left to make a telephone call to call people in to
take corrective action (tr. 109). He estimated the total amount
of accumulations as "under a ton" (Tr. 110).
William A. Kun, safety supervisor, stated that the cited
belt line and belt drive areas had last been inspected by a
preshift examiner that same day during the day ·shift between 1:00
and 4:00 p.m., and that no accumulation had been reported at that
location during that shift. However, accumulations around the
belt drive had been reported on the previous midnight shift and
on the prior Friday shift of the weekend of August 28, and
spillage was reported in different locations on the belt line. In
response to these reports, four different shifts of people were
sent to these particular areas to clean up the accumulations, and
each day the areas were cleared in the fire boss books
(Tr. 111-113).
Mr. Kun confirmed that he did not go to the cited area in
this case to observe that cleanup had taken place, and he
explained the different ways the accumulations may have· occurred,
including belt misalignment that causes the scrapers to miss the
materials on the belt (Tr. 112-119). He could not state that the
cited accumulations were caused by a misaligned belt, and he did
not know why they occurred in this case (Tr. 120).

Mr. Kun stated that based on his review of the fire boss
records for the two or three days prior to the violation,
accumulations were reported at different locations, including the
belt drive area, and they were cleaned up. He confirmed that he
knows the individuals who made the record entries, and he did not

235

believe that the cited accumulations were there a week prior to
the inspection by Mr. McDorman (Tr. 120-125).
on cross-examination, Mr. Kun confirmed that he did not
make the book entries he referred to, did not observe the cited
accumulations, or the cleanup (Tr. 125-126). He also confirmed
that he did not ask anyone if the tailpiece in question was out
of alignment (Tr. 128). He further explained the book entries,
and confirmed that no one walked the cited areas before coal
production started because they had been preshifted
(Tr. 129-133).
Mr. Kun stated that it was very possible that all of the
cited accumulations occurred the very same day that the inspector
was there, and that four of five of the locations cited by the
inspector were noted on the prior reports as being cleaned up
(Tr. 141-145) •
Inspector McDorman was recalled and stated that he arrived
at the mine at\ 2:45 p.m., and that the shift started work at
5:00 p.m. He c~nfirmed that he observed the cited conditions at
8:00 p.m. He did not . believe that the accumulations occurred
from 8:00 a.m. that morning, or the previous Thursday and Friday,
and were cleaned up (Tr. 147). He did not speak to the mine
foreman, and Mr. Schrack was his only "management" contact
(Tr. 148).
Section 104Cdl C2l "S&S" Order No. 3121656, issued on
July 21, 1992, by MSHA Inspector Michael Kalich, cites an alleged
violation of 30 C.F.R. § 75.701-5, and the cited condition or
practice states as follows:
At the 8 West ITE at 5 block on 8 West Supply track the
metal ITE box was not properly grounded. The frame
ground and electrical return were attached to a single
bond that was attached to the rail on only one end. If
this single bond were broken the ITE frame would become
energized to 300 volts DC and pose a shock hazard. The
track cleaner or the equipment had hooked the ground
feed wire at this location and pulled it apart.
100 feet of ground feed wire was rolled up into the
cross cut behind the ITE box. This ground feed wire
was also attached at the single bond but provided no
other point of attachment to the track or ground. Area
is fire bossed each shift and examined for electrical
hazards weekly. Four other citations have been issued
since 7-6-92 for similar conditions, No. 3121645,
3121648, 3121650, and 3121651.

236

This condition shows a high degree of negligence.
Condition could cause an electric shock or burn injury.
Separate clamps or connections to the mine track or
other grounded feed conductor are needed to provide a
solid connection.
On July 22, 1992, the order was modified to include the
following:
Citation No. 3121638 was issued on 6-29-92 for a
similar condition.
MSHA Electrical Inspector Michael Kalich, testified as to
his mining experience, and he stated that he holds a degree in
mining engineering from the West Virginia University and was
enrolled in its electrical engineering program. He is a certified
electrician and mine foreman, and has taught several electrical
training courses, and taken correspondence courses in electrical
theory and design. He has inspected the subject mine
periodically for the past six and one-half years, including
occasional electrical inspections (Tr. 175-176) .
Mr . Kalich confirmed that he issued the order and he
identified a sketch that he made depicting what he found at the
time of his inspection (Exhibit P-19). He explained that an ITE
box is a box approximately 42 inches high, 38 inches long, and 30
inches wide, and that it contains a circuit beaker which allows
for energizing and deenergizing the trolley wire (Tr. 181). He
further explained the mine power system, including the use of the
box, and the trolley wire (Tr. 183-189).
Mr . Kalich explained that the cited condition that
constituted a violation of section 75.701-5, was that the frame
ground conductor attached to the frame of the ITE box and the
No. 16 power conductor were both clamped together under a single
"crosby clamp" attached to a si~gle bond that was in turn
attached to the track rail in one single spot (Exhibit P-19;
Tr . 189-190). The specific violation of section 75.701-5, lies
in the fact that it requires the use of separate clamps to make
the connection in question, and he explained the connection
options that would be in compliance (Tr . 191-198) .
Referring to the demonstration model produced by the
respondent, Mr. Kalich stated that even though it is not an
acceptable connection method, as long as it is attached to the
mine track, there is no hazard to anyone touching the ITE box
frame, pump, or other piece of o.c. equipment (Tr. 199).
However, he considered it to be a potential hazard, and he
explained the hazard associated with the cited condition as
follows at (Tr. 200-203):
·

237

Q.

What is the hazard?
allowed?

A.

The hazard is that if this bond becomes
severed from the mine track, the power will
feed through the box, out this white wire to
the bond. And now it has nowhere to go to
complete a circuit, so it feeds back on the
green wire and energizes the frame of the
pump or frame of the I.T.E. box.

*

*

*

Why is this method not

*

*

*

Q.

Now, you have this setup here and the track
bond is severed, assuming a hypothetical, and
the equipment is working properly and someone
goes and touches it, is there a danger?

A.

Most definitely.
o.c. and .--

*

It's three-hundred-volt

JUDGE KOUTRAS: And the guy would be the
ground. The person touching it would be the
grounding medium, correct?
THE WITNESS: Correct. The current would flow
through the person that touched the frame of
the pump and the person would complete the
circuit.
·
Mr. Kalich explained the abatement method, and he confirmed
that the proper method for making the connections required by
section 75.701-5, are shown in a sketch (Exhibit G-21). He
explained that .the frame ground is connected to the ground feeder
conductor and the No . 16 return power conductor is connected to
the single bond, and these connections are made by separate
clamps and connectors. With this method of grounding,
if the single track bond is ·severed, the frame will not become
energized (Tr. 210-211). Mr. Kalich confirmed that the abatement
method depicted in the sketch is one of several ways to achieve
compliance, and it is the method presently used at the mine
{Tr. 213).
Mr. Kalich stated that in order for a person to receive a
shock from the violative connection method used at the time of
his inspection the track bond would have to be severed. The bond
could be severed by a derailment, and electrical shock and burns,
and a fatal shock could result. He further explained as follows
at (Tr. 214):

238

Q.

Why did you feel or why do you feel now that
it's reasonably likely that this track bond
could become severed?
·

A.

I think it's reasonably likely because, as
shown in my diagram, it's on a curve. The
track is not in the best of condition in that
area. There are kinks in the rail. You know,
the track leans to one side. There is
evidence of the single bond being run over,
because it is frayed ·or was frayed.
Approximately half of these single conductors
were broken in the bond in question that I
cited in that violation from pieces of
equipment, the track cleaner.
or
derailments of supply cars or jeeps or
motors that occurred in this area.

Q.

Are you aware of track bonds ever being
severed from the track like that?

A.

Yes . In my experience in the mining
industry, I've seen it myself, when I worked
for U.S. Steel. And it has also been cited
by other inspectors.

Mr. Kalich identified copies· of two citations issued at two
of the respondent's other mines for improper grounding due to the
return and frame ground being connected to a single bond which
had been cut loose from the track (Exhibits G-22 and G-23), and
the petitioner's counsel asserted that these were offered to show
that track bonds can become severed and are relevant to the "S&S"
finding made by Mr. Kalich (Tr. 216).
Mr. Kalich stated that he based his "high negligence" and
"unwarrantable failure" findings on other violations that he had
issued two weeks prior to his inspection of July 21, 1992, for
making connections on pumps and ITE boxes in the same fashion
(Exhibits P-24 through P-28), and his belief that the ground
feeder conductor had been clearly pulled apart and had to have
been hooked or hit by a piece of equipment. It appeared that
someone had rolled up the conductor and place it in the crosscut,
and he concluded that someone had knowledge that the conductor
had been broken (Tr. 216-218).
Mr. Kalich stated that the prior citations he relied on
involved grounding methods that were not approve·d pursuant to
section 75.701, and they "may have" involved the use of separate
clamps pursuant to section 75.701-5 (Tr. 220). Petitioner's
counsel conceded that the prior citations did not involve that
section (Tr. 222). Mr. Kalich confirmed that the prior citations

239

were all section 104(a) citations, but that he relied on them in
part to support the order that the issued in this case (Tr. 225).
Mr. Kalich identified two prior citations issued in 1983 and
1989, citing the same ITE box that he cited, and the petitioner's
counsel stated that these further support the inspector's
unwarr~ntable failure findings (Exhibits P-29 and P-30;
Tr. 228-230) •
Mr. Kalich stated that mine management knew that the cited
method of grounding was not approved by MSHA, and this was known
through ten years of conferences with MSHA, and the fact that
after being cited, the respondent would take corrective action by
installing two separate bonds and providing separate connections
(Tr. 231-234) .
Mr. Kalich believed that the cited condition "was obvious to
anyone riding along the haulage", but it was not recorded in the
preshift book. He believed the condition had existed for ten
days because he was told that a track cleaner had been used in
the area, and he surmized that it pulled the feed wire loose and
someone simply rolled it up and placed it in the crosscut behind
the ITE box. He could not determine who may have done all of
this (Tr. 237-242).
On cross-examination, Mr. Kalich stated that he has cited
the respondent several times for failure to use separate
clamps on a grounded power conductor, and that he has used
sections 75.701 and 75.701-5 interchangeably. However, he could
not state that these prior violations represent citations for
clamping both the frame ground and the power return in the same
clamp (Tr. 252-254) .
Mr. Kalich stated that when he spoke with mine management he
discussed the grounding of the boxes, pumps, and other electrical
equipment to railbonds, and the "tack welding" of both ends of
the rail bond to the rail. He denied that he did not discuss the
use of separate clamps and stated that he also discussed this.
He stated that he did not k~ow how many ·times he has cited the
respondent for violating section 75 .701-5 (Tr. 256-257). He
confirmed that the broken trolley feeder wire rolled up ·in the
crosscut is not a violation and that trolley feeder wire is not
required (Tr. 260).
Carl Blaney , supply motorman, testified that he escorted
Mr. Kalich during his inspection and observed the cited
condition. He agreed that the condition cited is accurately
depicted in the sketch admitted as Exhibit P-19, and he agreed
with the inspector that the frame ground wire and return power
wire going out of the ITE box were both hooked or clamped to the
track bond under one "crosby" clamp (Tr. 267). He also confirmed
that the ground feeder wire was rolled up behind the box, and

240

that the track bond "was frayed, like something had run over it,
or caught in a machine or something" (Tr. 268).
Mr . Blaney stated that he has observed mine cars derail in
the mine and that this occurs "maybe once a week". He has
experience a derailment, and has seen track bonds severed by
derailed coal cars. He has also seen track bonds torn off by a
track cleaner and if a bond or wire is torn he reports it to
management at the end of his shift (Tr. 268-269).
On cross-examination, Mr. Blaney confirmed that he observed
the two wires with the one clamp and that Mr. Kalich explained
where the wires were going or where they came from. Mr. Blaney
confirmed that he has no electrical training, but was positive he
saw only one clamp on the rail bond.
He also confirmed that he
observed the frayed conductor wires (Tr. 273-277).
Respondent's Testimony and Evi dence
Ryan N. Eddy, electrical foreman, testified that the order
was served on him and that he looked at the piece of track bond
cited in this case . He confirmed that there was one clamp on the
track bond and ·that the frame ground was connected to the mine
feeder wire that was connected to the track through the bond. He
stated that the ITE box frame ground was attached with a clamp as
shown in the inspector's sketch and he believed that the other
conductor was attached to a butt connector. He further confirmed
that two clamps were used to connect · "the grounds to the track
bond or the ground feeder (Tr. 279-281).
On cross-examination, Mr. Eddy stated that assuming the
return wire and the frame ground had separate connections to the
track bond, he would consider that to be an acceptable method of
grounding . He was aware that Mr. Kalich did not consider this to
be an acceptable method. He confirmed that he had received three
citations on July 13, 1992, and that they were issued because
equipment was grounded by attaching both the return and frame
ground with track bond which wa$ attached to the rail at one
point (Tr . 283). He also confirmed that he knew it was possible
that other equipment would be grounded by this method (Tr. 287).
Mr . Eddy stated that electrical equipment is checked weekly.
He confirmed that the order was abated by using two separate
clamps but he and his supervisors did not believe there was a
violation for using the method cited by Mr . Kalich (Tr. 290).
Mr. Eddy did not dispute the fact that a track bond can be
severed by derailments that do occur, and he agreed that if the
track bond is severed the power will go to the frame of the
equipment (Tr. 300-301). He also agreed that with the grounding
method that was cited, as depicted in Exhibit G-19, where two
wires are attached at one end to a single track bond, if the

241

track bond is severed, the equipment will become energized at
300 volts (Tr. 302).
Mr. Eddy stated that he holds a degree from Fairmont State
College in electrical engineering technology and that he is a
certified underground and surface electrician and certified mine
foreman (Tr. 303-304). He confirmed that none of the three prior
citations issued by Mr. Kalich had anything to do with section
75.701-5, or with how many clamps were used to attach grounds to
the grounded power conductor. The citations concerned the single
bond, the tacking of the other end of the rail bond (Tr. 309).

William J. Helfrich, was called in rebuttal by the
petitioner and he was accepted as an e)cpert witness in electrical
matters (Exhibit G-31). Mr. Helfrich holds a B.S. degree in
electrical engineering from the Pennsylvania State University and
is employed by MSHA as Chief of the Mine Electrical Systems
Division. His experience includes membership on committees
rewriting MSHA's electrical regulations, teaching electrical
courses, and publishing a number of technical reports.
Mr. Helfrich stated that he was familiar with the cited
regulation and the issues presented in this case, and has over
the past ten years "poured over these regulations and I've
rewrote several or many times these regulations" (Tr. 312).
Referring to the track bond demonstration model referred to in
this case, he stated that it was not in compliance with the
intent of section 75.701-5. He stated that the regulation
requires that the frame grounding wire be attached to the track
by a separate completely independent connection, and that in this
case it was tied to a conductor. He further explained why the
connection cited was a violation, and why he believed it did not
constitute a grounded power conductor (Tr. 312-315).
on cross-examination, Mr. Helfrich stated that the
connections shown in Exhibit G-19, show only one connection to
the rail, and other wire conductors are all tied together with
one clamp rather than two separate ones (Tr. 319).
Section 104Cdl (2) "S&S" Order No. 3717744, issued on
July 22, 1992, by MSHA Inspector Joseph A. Migaiolo, cites an
alleged violation of 30 C.F.R. § 75.1403. The order states that
the 5,800 foot supply track on the two (2) left section was not
being maintained, and the relevant cited conditions are described
as follows:
The track has deteriorated at numerous track joints due
to inadequate blocking of the track. The bottom
irregularities and poor to no blocking causes the rails
to fan up and down, flexing at the joints. This action
causes the nuts on the bolts to gradually loosen, fall
off and the bolts to become dislodged. Several stages

242

of this deterioration were observed to a point where
two (2) bolts out of four had become dislodged and the
remaining two (2) bolts had nuts nearly totally screwed
off. This would have left the rails separated and
subject to collision with oncoming traffic. This
causes a sudden stop which throws persons about and
sometimes out of the jitneys. This action can also
place pressure on the f ishplates causing them to break
producing derailment and sudden stops.
The inspector noted defects in ninety-one (91) track joints
along the cited supply track, and he described the deterioration
as follows:
46 had one bolt loose, 24 had two bolts loose, 3 had
three bolts loose, 6 had 4 bolts loose, 3 had 1 bolt
missing, 2 had 2 bolts missing, 1 bolt loose with one
bolt missing, 4 with a loose bolt and 4 with a nut
missing, 1 with 2 loose nuts and a nut missing.

The inspector modified the order on July 23, 1992, to
include the locations of the defective track joints by references
to the specific block numbers enumerated in the modified order.
Petitioner's Testimony and Evidence
MSHA Inspector Joseph A. Migaiolo, testified that he
regularly inspects the mine and he confirmed that he conducted an
inspection on July 22, · 1992, and issued the order in question.
He confirmed that the order was issued under the statutory and
regulatory scheme for issuing safeguard notices. The
respondent's counsel did riot dispute this, and he agreed that
once a safeguard notice is issued it becomes mine specific for
the mine. The inspector identified a copy of the initial
underlying safeguard -notice number 33097 34, issued by MSHA
Inspector Dale R. Denning on December 7, 1989. The safeguard
cited the rail aligi:imen~ and· loose and low joints (Exhibit G-33;
Tr. 325-329).
The inspector stated that hazards associated with the
safeguard involved the derailment of mine cars, locomotives, and
jitneys caused by the joints becoming loose and the rails
breaking or coming apart. A .derailment can cause serious
injuries to miners if the vehicles were to come to a sudden stop
and they were thrown .about or out of the vehicle. The safeguard
requires· the respondent to maintain the joints secure and to
maintain the track safe throughout the mine (Tr. 329-330).
The inspector stated that the 1989 safeguard was issued
after a previously issued safeguard in 1972, which put the
respondent on notice that it had several broken rails and loose

243

and unsecured joints. The 1989 safeguard further explained what
needed to be done to maintain the track (Tr. 331). He believed
that the safeguard he issued was still needed and that the
derailment hazard still existed (Tr. 332).
The inspector described the conditions that he found during
his inspection and he confirmed that he recorded them in his
notes and diagrams, and he explained the use of fishplates
to secure the rails (Tr. 333-337). In his opinion, the
deteriorated rail joints were caused by the vibrations of the
equipment passing over them, and the methods used to install the
rails accelerates their deterioration. He explained that the
crosscut intersections where most of the conditions existed are
lower than the entryways and they are not properly blocked to
keep them level with the entry track. As a result, the track
"fans up and down when you begin to go across it". He further
explained as follows at (Tr. 340):
When you go down into the crosscut; the track on the
other side pops up. It fans upward. And of course,
when you come up out of the ·crosscut, the track behind
you pops up \behind
you.
\
The joints in these approaching areas and in these
crosscuts become loose. And the bolts deteri orate,
meaning they back off, they unscrew. And this is where
your fishplates -- then you get a loose joint.
The fishplate can break or the bolts can become
dislodged and the rails become dislodged from each
other. This causes · the rail, then, to either pop up or
become misaligned and a derailment occurs.
The inspector stated that the jitneys travel at a speed of
five to fifteen miles an hour (Tr. 343). He explained his "S&S"
finding as follows at (Tr. 344-345):
A.

Well, with just one bolt loose, not very
likely anything is going to occur. But what
does occur is that when you have one bolt
loose, is that it causes additional stress to
the other bolts that are in the plate. And
then this causes those bolts to become loose,
also. This, in turn, then causes the plate
to become so loose that you get a derailment.

Q.

Why don't you explain why you thought that it
was reasonably likely that this condition
would result in an injury?

A.

It's highly likely that the joint is going to
come loose and that there is going to be a

244

derailment when the bolts actually come loose
from the joint. The situations we have where
you have one bolt missing and two loose on
the other side, you're just a whisper away
from the joint coming apart.
So it's highly likely that the event is going
to occur . As I indicted, the type of
injuries that can occur, striking various
parts of the body, and even being thrown from
the vehicle will occur and cause very serious
bodily injury.
Q.

You're saying that it's highly likely, but
you checked them in the order reasonably
likely.

A.

It's reasonably likely that it will occur,
Yes, if conditions continue as they are
normally, right now, with the equipment
running over these type of joints, that they
continually get loose, more loose .and more
loose.
You have all different phases of the joints
being present in the area, from one bolt
being loose to one bolt on each side being
loose, to two bolts loose on a side, one bolt
on the other side, one bolt being loose or
two bolts loose and one bolt missing. You
have all the phases . And the next step is
for the other bolt to fall out of the joint
or get loose and fall out of the joint and
cause a derailment.

With regard to his "high negligence" and unwarrantable
failure findings, the inspector stated as follows at (Tr. 34634 7):
A.

As I indicated, the operator was placed on
notice as far back as 1972, then placed back
on notice -- continued on notice in 1989. · He
knew at that time that the had a specific
mine hazard that he had to watch for and take
care of and that he should then take specific
care when he made his examinations of the
area to assure that this mine hazard didn't
reexist or exist in a large volume.

The inspector stated that he had spoken to company safety
supervisor Wiiliam Kun over a n\11\lber of years ab.out the blocking
of the track, and that Mr. Kun seldom disagreed that the track

245

did not need blocking because he recognized that it is a good
method to maintain a level track to prevent it from fanning up
and down and causing the joints to loosen. The inspector further
indicated that he has spoken to the superintendent and to other
safety representatives about blocking the track (Tr. 351-352).
The inspector confirmed that he has issued citations in the
past at the mine for conditions similar to those cited in his
order (Exhibits G-35 through G-39). He also indicated that four
additional citations were issued under the same safeguard
(Exhibits G-40 - G-43). All of these are section 104(a)
citations, rather than (d) orders, and he explained that there
are differences in the extent of the deteriorated track
conditions noted (Tr. 355-363).
The inspector believed that the cited conditions had existed
for several weeks and that the area was preshifted three times a
day, and that this contributed to his unwarrantable failure
finding in addition to the respondent's knowledge of the
conditions, the prior safeguards which put it on notice, and his
prior conversations wi th management (Tr. 363-365).
On cross-examination, the inspector confirmed that he cited
the supply track from the mouth up .'t o the working section for a
distance of approximately 58 blocks, or 5,400 feet. He read from
the 1989 safeguard which states that it is notice that "all track
haulage at this mine shall be well maintained where men or
supplies or coal is transported" (Tr. 369). There is no
limitation with respect to the amount· of vertical movement that
is allowed, and the safeguard only required that the track be
"well maintained" (Tr. 370).
The inspector explained that a "f ishplate" is a securing
plate that is applied to both si~es of the track joint and
secured by bolts inserted into the fishplate holes. He stated
that all of the holes should ~ave a secured bolt through them to
hold the fishplate in place, and if any bolts are missing, he
would consider this to be a violation (Tr. 376). He confirmed
that missing bolts are usually initially in place but become
dislodged over time, and if they are found by the track they are
replaced and tightened up (Tr. 380-382). He also confirmed that
the cited track was not coal haulage track, and that it is used
to haul supplies an? people to and from the sections (Tr. 383).
Respondent's Testimony and Evidence
William Kun, safety supervisor, testified that he traveled
the two left supply track area approximately eight days prior to
the issuance of the order. At that time the inspector was with
him and told him that he had observed a couple of places where
the track "was fanning a little bit" and he asked him to get it
taken care of and did not issue a citation. Mr. Kun discussed

24 6

the matter with the mine foreman and superintendent, and it was
decided to establish a maintenance schedule, beginning with the
ballasting of the two left supply track. Two carloads of gravel
were bought in starting at the mouth of the section, and the
dumping of the gravel was a slow process. The day shift was ·
assigned to do the rehabilitation work under the supervision of
shift foreman Dennis Mitchell. At the time of the inspection,
the work had progressed to the number 9 or 10 block and the
gravel was used to ballast and block the rails and "getting it
leveled out". He believed that bolts were being replaced as the
gravel work progressed, and while he examined that work he did
not check each rail joint for loose or missing bolts
(Tr. 391-393).
On cross-examination, Mr. Kun confirmed that the track
rehabilitation work was done on only one shift, and he did not
believe it was a high priority item because he saw no joints out
of alignment when he traveled the area. He confirmed that he was
not with the inspector when he issued the order and he was
surprised that he did so. He expressed his surprise to the
inspector, and the inspector commented that "they should have
taken care of it" (Tr. 394-397).
Mr. Kun stated that it was possible that the loose and
missing bolts were caused by the equipment fanning up and down
over the tracks. It was also possible that the condition would
progressively worsen, but other than movement, he did not observe
the track "raise up where you could see it seven hundred feet"
(Tr. 397). Since work was in progress to upgrade the track,
Mr. Kun did not believe that the conditions would have
deteriorated further if normal mining operations were to
continue, but that it was possible that a derailment could occur
(Tr. 398) •
Mr. Kun described the abatement work and stated that it was
possible that it took approximately six hours, but indicated that
it took a month or more to complete the ballasting of the entire
track and to complete the rest of the work (Tr. 399-400).
Dennis Mitchell, day shift foreman, confirmed th~t he
traveled with the inspector during his inspection. Mr. Mitchell
did not believe it unusua.l · to see loose track bolts and he
indicated that they are initially tight when installed but loosen
up by the vibration of the traffic. He believed that the track
was well maintained and he did not observe that any of the
f ishplates were going to come off because they are seated under
the 85 pound rail. He agreed that some bolts were missing and
that others were visibly loose because the nut was missing.
However, a preshift examiner would not have otherwise detected
loose bolts unless he used a wrench. The missing bolts that
could be found were repl.aced (Tr. 402-406). Mr. Mitchell did not

247

believe that any of the conditions cited constituted a hazard,
and he did not consider the conditions to be a violation
(Tr. 407).
On cross-examination, Mr. Mitchell was of the opinion that
if a bolt is holding the fishplate on it is not a hazard, but if
he observed one with only one bolt, he would make an attempt to
have someone install additional bolts. He confirmed that there
are four bolts for each of the rail joints, and if there is only
one bolt and the fishplate falls off, it was possible that the
rail would come apart (Tr. 410). He stated that depending on the
traffic, the amount of loose bolts at the 91 joints cited by the
inspector could have taken several weeks to loosen. He could not
state when the bolts were last checked prior to the reinspection
(Tr. 412-413) •
Mr. Mitchell was not aware of any supply track injuries
occurring at the mine as a result of poor track maintenance or
otherwise (Tr. 414-415). He confirmed that the track upgrading
work began before the inspector issued the order (Tr. 417).
Earl Kennedy, respondent's Chief safety inspector, stated
that he was travelling the supply track with the superintendent
the day the inspector issued his order. He stated that he checks
the supply track every time he rides it and he listens for
rattles in the joints when he crosses them in the vehicle. A
loose fishplate will rattle, and he heard none rattling on the
day in question. He stated that the fishplate joints are tight
and secured with a steel armored tie that holds both rails on
each side of the joint. He did not discuss the order with the
inspector but he did check all of the track from the No. 55 block
up to the No. 21 block where he found track people working. He
checked every . fishplate and every bolt and joint with a pry bar
and he noted seven missing bolts and four missing nuts, none of
which were at the same location. He saw no fishplate that was
about to separate and none that were loose (Tr. 421-425). Mr.
Kennedy was of the opinion that the track in question was well
maintained and free of hazards (Tr. 425-426).
on cross-examination, Mr. Kennedy stated that it is common
for one bolt and nut out of four to be missing from a fishplate,
but if it is tight, there is no problem (Tr. 428). He agreed
that loose bolts should be taken care of and this is the job of
the main~enance people (Tr. 432). He confirmed that he was not
with the inspector when he issued the order, but that he walked
the same track less than an hour after the inspector and did not
find all of the conditions that he did (Tr. 434).
Inspector Migaiolo was recalled by the presiding judge and
he stated that when the miner's representative who accompanied
him finds loose bolts he "finger tights" the thread so it doesn't
come completely off, and when bolts and nuts were found by the

24 8

track they were replaced as they walked the track. However, the
locations are still recorded and cited and abatement is not
completed until a wrench is used to tighten the bolts and fish
plates. He could not recall at how many locations that he cited
this occurred and he believed it would account for the low number
of missing bolts found by Mr. Kennedy (Tr. 445).
Findings and Conclusions
Fact of Violations
Order No. 3122095.

30· C.F.R.

§

75.400

The credible and unrebutted testimony of the inspector
establishes the existence of the cited coal and float coal
accumulations that he observed in the course of his inspection on
August 31, 1992. Indeed·, the testimony of assistant shift
foreman Schrack supports the inspector's observations and I have
given little weight to the testimony of safety supervisor Kun,
who admitted that he did not observe the cited conditions or the
abatement work, and whose knowledge of the matter was limited to
his review of certain shift records. The existence of the coal
accumulations in question constitutes a violation of the cited
section 75.400. See: Old Ben Coal Company, 2 FMSHRC 2806
{October 1980); c.c.c.-Pompey coal Company. Inc., 2 FMSHRC 1195
(June 1980); Utah Power & Light Company, 12 FMSHRC 965, 968 (May
1990). I conclude and find that the violation has been
established, and IT IS AFFIRMED.
Order No. 3121656.

30 C.F.R.

§

75.701-5.

The inspector issued the violation after finding that the
frame ground wire for the ITE box containing a circuit breaker
for energizing and de-energizing the supply track trolley wire
and the return power conductor were both attached to a single
piece of track bond by one single clamp (Diagram, Exhibit G-19).
The cited section 75.701-5, provid~s as follows:
The attachment of grounding wire· to a mine track or
other grounded power condu·c tor will be approved if
separate clamps, suitable for such purpose, are used
and installed to provide a solid connection.
In the course of the hearing, the respondent ' ·s · counsel
asserted that the language "will be approved" found in section
75.701-5, does not impose any mand~tory requirement that separate
clamps be used for the grounding wires and power conductor in
question (Tr. 245-246). The respondent's position is rejectd. I
agree with the petitioner's position that section ~5.701-5, must
be considered in context, and in conjunction with section 75.701,
requires the grounding of metallic frames by methods approved by
MSHA, and section 75.701-3, which contains the approved grounding

249

methods. Under the circumstances, I conclude and find that
section 75.701-5, does impose a mandatory requirement for the use
of separate clamps pursuant to that section.
I conclude and find that the credible testimony and
documentation presented by the inspector, as corroborated by
inspector escort Blaney and electrical expert Helfrich,
establishes that the failure to use separate clamps for attaching
or connecting the return power conductor and the frame ground
wire to the single piece of track bond was a violation of
.
section 75.705-5. Although electrical foreman Eddy agreed that
there was one clamp on the track bond, and that the frame ground
was attached with a clamp as shown in Exhibit G-19, he maintained
that two clamps were used to connect the grounds to the track
bond or the ground feeder. However, I find the inspector's
testimony more credible than Mr. Eddy's, and take note of the
fact that on cross~examination, Mr. Eddy seemingly agreed that
the grounding method cited and documented by the inspector
consisted of two wires attached at one end to a single track
bond.
I conclude and find that the petitioner has established a
violation by a preponderance of the credible evidence adduced in
this matter. The failure to use separate clamps for attaching
the ground wire and power conductor constituted a clear violation
of section 75.701-5. See: U.S. Steel Mining Company. Inc.,
6 FMSHRC 1369 (May 1984); U.S. Steel Mining Company, Inc.,
6 FMSHRC 1510 (June 1984); U.S. Steel Mining Company. Inc.,
6 FMSHRC 2058 (August 1984). Under all of these circumstances,
the violation IS AFFIRMED.
Order No. 3717744.

30 C.F.R.

§

75.1403

In this instance, the respondent is charged with a violation
of the safeguard requirements found in section 75.1403, which
provides as follows:
Other safeguards adequate, in the judgment of an
authorized representative of the Secretary, to minimize
hazards with respect to transportation of men an
materials shall be provided.
The general criteria for issuing safeguards provides for
notification in writing by an inspector to the mine operator of
the specific safeguard requirements for the specific mine to
which they are addressed, and once a safeguard notice is issued,
the operator is obliged to c omply with the safeguards and to
maintain them for the particular mine in question. The
respondent agreed that once a safeguard notice is issued, it
becomes mine specific for the mine, and it does not dispute the
fact that the order was issued pursuant to the statutory and
regulatory safeguard notice scheme.

250

In this case, the inspector cited ·a violation Of
section 75.1403, because of the failure by the respondent to
maintain the cited supply. track. The inspector's narrative
description of the cited conditions, as well as his credible
testimony, provided a detailed and thorough description of
ninety-one haulage track joints where there were missing or loose
nuts and bolts in the fishplates that held the track rails
together. The inspector concluded these deteriorated track
conditions covering a rather extensive distance of 5,800 feet of
track established that the tracks were not being maintained as
required by a previously issued safeguard notice covering the
track haulage at the mine.
The safeguard notice relfed on by the inspector in issuing
the violation was issued at the mine on December 7, 1989,
'
(No. 3309734); and it was issued because of loose or missing
track bolts along the mine track haulage. The notice
specifically informed the respondent that all mine track haulage
used to transport men, supplies, or coal shall be well
maintained.
I conclude and find that the credible testimony of the
inspector, which is supported by his detailed notes and orders,
establishes the conditions that he cited and described. I
further conclude and find that these conditions reasonably
support the inspector's conclusi9ns that the cited haulage tracks
were not being well maintained as required by the applicable
underlying safeguard notice.
Although respondent's safety inspector Kennedy testified
that he found far less missing bolts and nuts, and no signs of
loose fishplates, he was not with the inspector when he made his
observations and notations and he walked the track after the
order was issued. I find credible the inspector's explanation
that when he and the miners' representative walked the track and
found nuts and bolts by the tracks, they were replaced, but that
abatement would not be achieved until they were secured in place
with a wrench.
Respondent's safety supervisor· Kun, who was not with the
inspector when he issued the order, nonetheless confirmed that it
was possible that the equipment "fanning" up and down over the
tracks caused the bolts to loosen and came off the fishplates.
Shift foreman Mitchell, who accompanied the inspector, agreed
that loose track bolts caused by traffic vibrations were not
unusual, and he confirmed that some bolts were missing and others
were loose because of missing bolts, and he could not state when
the bolts were last checked prior to the inspection in question.
I conclude and find that the cited haulage track condition
existed as initially found and observed by the inspector, and
that such conditions support the inspector's conclusions that the

251

tracks were in a deteriorated condition and were not well
maintained as required by the previous safeguard issued pursuant
to section 75.1403. Under the circumstances, I further conclude
and find that the petitioner has established a violation by a
preponderance of the credible evidence adduced in this matter,
and the violation IS AFFIRMED.
Significant and Substant~al 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
significan~ 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 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 Commiss.i on stated further as follows: ·
We have explained further that the third element qf 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); ~
Steel Mining Company. Inc., 6 FMSHRC 1573, 1574-75
(July 1984).

252

The question of whether any particular violation is
significant and substantial must be· based on the particular facts
surrounding the 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).
Order No. 3122095.

30 C.F.R. § 75.400

The inspector's credible and unrebutted testimony
establishes that several belt rollers were frozen, and turning in
the coal, and rubbing against the belt that was running and
turning in the accumulations of coal and coal dust. Indeed, the
assistant shift foreman Schrack, _ who was with the inspector,
confirmed that belt rollers were turning in the spillage and that
a couple of the rollers were frozen in the accumulated coal .
Although the evidence reflects that fire _suppression devi ces
were installed along a portion of the belt, they were not
installed along all of the 350 foot area that was cited.
Further, even though the accumulations were found at some
distance from the working face, the inspector did not believe
that this affected the fire hazard that existed in the belt areas
that he cited, and he noted the. fact that the air ventilation
travelled from the belt line to the longwall section where at
least six miners were working.
The inspector believed ·that the dry and black shiny coal
dust and float coal dust accumulations were combustible and
presented a fire hazard, particularly since the belt was running
and the frozen belt rollers were turning in the coal
accumulations and rubbing the belt. He considered the frozen
rollers and the belt rubbing the coal as a source of heat and
ignition, and he also considered the other ignition sources such
as a starter box, electrical motors, and cables.
The inspector believed that the coal accumulations and ready
ignition sources presented a serious fire hazard, and that in the
event of a fire, the accumulations would contribute to the hazard
because they would constitute the fuel for feeding the fire. He
further beiieved that it was reasonably likely that the six men
working on the section would suffer injuries ranging from smoke
inhalation to entrapment and burns as a result of any fire.
I agree with the inspector's "S&S" finding. I conclude and
find that the cited coal accumulations presented a discrete fire
hazard on the cited beltline in question and that given the
existing ready sources of ignition in those· cited areas where the
dry coal and coal dust were turning in the moving belt and stuck
rollers, I conclude and find that it was reasonably likely that a
belt fire would occur if normal mining operations were continued.
I further conclude and find that in the event of a belt fire, it

25 3

would be reasonably likely that the men . on the section would
suffer smoke inhalation and fire related injuries of .a reasonably
serious nature. Under the circumstances, I conclude and find
that the violation was significant and substantial (S&S), and the
inspector's finding in this regard IS AFFIRMED.
Order No. 3121656.

30 C.F.R.

§

75.7Ql-5.

The electrical inspector's credible and unrebutted testimony
establishes that in the event of an equipment derailment, the
single grounding bond to the track rail could be severed, and if
this occurred the ITE box frame would be energized and present an
electrical shock or electrocution hazard to anyone contacting the
frame which would be energized at 300 volts D.C.
Any touching
of the en&rgized frame would serve as the ground and would
complete the circuit.
The inspector confirmed that he was aware of track bonds
being severed by derailments, and he believed that it was
reasonably likely to occur in this instance because the area
where the violation occurred was on a curve and the rail tracks
were not in the b.e st condition and contained "kinks" and "leaned
to one side" (Tr. 214). He also observed that the single track
bond was frayed, contained broken conductors, and showed evidence
of being run over.
·
Motorman Blaney, who also observed the cited condition,
confirmed that the track bond was in poor condition. He also
confirmed that derailments occurred at least once a week, and he
has observed track bonds that have been severed by derailed mine
cars or torn off by track cleaners.
Respondent's electrical foreman Eddy did not dispute the
fact that derailments occur, and he agreed that a track bond can
be se~ered by a derailment, and if it were severed the power will
go to the frame of the equipment and will energize it at
300 volts.
, I agree with the inspector's "S&S" finding. I conclude and
find that the violation presented a discrete electrical shock
hazard, and in the likely event that the track bond were severed
by being run over by a piece of track equipment, or through an
equipment derailment, which I find was reasonably likely to
occur in the normal course of mining operations, the ITE box
frame would become energized and expose anyone touching it to 300
volts of D.C. current. If anyone were to contact the energized
frame, it would be reasonably likely that they would suffer
electrical shock injuries of a reasonably serious nature. Under
all of these circumstances, I conclude and find that the
violation was significant and substantial (S&S), and the
inspector's finding in this regard IS AFFIRMED.

254

Order No. 3717744.

30 C. F.R. § 75.1403.

The inspector believed that the deteriorated track
conditions, which he documented in great detail, would result in
the failure and breaking of the fishplates, which in turn would
result in the separation of the track rails and a derailment. He
further believed that a derailment was reasonably likely to occur
if normal mining operations were to continue and the equipment
continued to travel over the tracks with loosened or missing
fishplate nuts and bolts. Although he did not observe · any
separated track joints or fishplates, given the extent of the
conditions, the inspector believed that a track separation was
"just a whisper away" (Tr. 345). If a derailment were to occur,
the inspector believed that serious injuries to the miners riding
the track haulage would result.
_Respondent's safety supervisor Kun agreed that the cited
track conditions would progressively worsen if not attended to.
Although he believed that the conditions would have been
corrected as the track upgrading work continued, and disagreed
that a derailment was likely to occur, he conceded that a
derailment was possible (Tr. 398). Shift foreman Mitchell agreed
that if a fishplate that is secured by only one bolt falls off,
it was poss·ibl.e that the track rail would come apart (Tr. 410) •
He also confirmed that it was not unusual for track bolts to
loosen, and he agreed that ~ derailment at a point where the rail
joint is no longer secured could result in serious injuries (Tr.
411, 414).
I agree with the inspector's "S&S"" finding . In view of the
extent of the track deterioration observed by the inspector who
credibly documented 46 track joints with one bolt missing, 24
joints with two loose bolts, three joints with four loose bolts,
and the remaining joints with loose and missing nuts and bolts, I
cannot disagree with the inspector's conclusion that a track
derailment was reasonably likely and "just a whisper away" if
normal. mining operations were to continue. In the likely event
of a derailment, I believe it was reasonably likely that miners
would suffer injuries of a reasonably serious nature. Under the
circumstances, I conclude and find that the violation was
significant and Substantial (S&S), and the inspector's finding in
this regard IS AFFIRMED.
Unwarrantable Failure Violations
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

255

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
Youqhioqheny & 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
"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 "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of the phrase
"unwarrantable failure." "Unwarrantable" is defined as
"not justifiable" or "inexcusable." "Failure" is
defined as "neglect of an assigned, expected, or
appropriate action." Webster's Third New International
Dictionary (Unabridged) 2514, 814 (1971) ("Webster's"}.
Comparatively, negligence is the failure to use such
care as a reasonably prudent and careful person would
use and .is characterized by "inadvertence,"
"thoughtlessness," and "inattention." Black's r.aw
Dictionary 930-31 (~th ed. 1979}. Conduct that is not
justifiable and inexcusable is the result of more than
inadvertence, thoughtlessness, or inattention. * * •
Order No. 3122095.

30 C.F.R.

§

75.400.

The inspector testified tha1;. he based his "high negligence"
order on the existence of the accumulations at all of the nine
(9} locations that he described in the order, the fact that they

256

were extensive and had been allowed to accumulate over some
period of time, his belief that they should have been discovered
during the preceding shifts, and prior citations for violations
of section 75.400, including a citation on August 11, 1992, three
weeks prior to his order, which he had discussed with foreman ·
Dennis Mitchell, and which put him on notice about the problem
with accumulations along conveyor belt drives (Tr. 36-37).
Although the inspector conceded that his conclusion that the
cited accumulations had existed "for some time" was based on his
testing and observation that the 12 inches of coal accumulations
at cited . location No . 2, was "layered", indicating that it had
been there for some time, and that he did not make an effort to
determine whether "layering" existed at the other cited
locations, I conclude and find that his credible and unrebutted
testimony, as corroborated by his notes, establishes the
existence of rather extensive accumulations of coal at the cited
locations. Given the extent of the accumulations, including the
measurements detailed and recorded by the inspector, I cannot
conclude that they were the result of recent spills or belt
malfunctions .
The accumulations cited by the inspector covered a rather
extensive area of approximately 350 feet along the cited
beltline. The inspector documented mine (9) locations where he
found fine coal and float coal accumulations ranging in depths of
four to twelve inches. Shift foreman · shrack did not dispute the
existence of the accumulations, and he estimated that they
amounted to "under a ton" (Tr . 110). The inspector testified
that Mr. Schrack made a statement that "he does not see why some
of these areas were not seen and· reported", and that he recorded
this in his notes (Tr. 58). Mr. Schrack could not recall making
the statement, but stated that it was possible that he did
(Tr. 102). I find the inspector's testimony to be credible and
believable, and I conclude that Mr . Shrack made the statement.
Although the inspector confirmed that he checked the
preshift and onshift books and found that coal accumulations had
been reported and cleaned up for the days prior to his inspection
on Monday, August 31, 1992, ·he did to believe that the
accumulations that he found occurred on Monday, and that they had
existed at least since the prior Saturday. No coal was produced
on Sunday, and if any clean up was done on Saturday, the
inspector believed that it was a "cosmetic job where they removed
the coal down below the belt rollers and throw rock dust under
it" (Tr. 6 0-61 ) •
The inspector confirmed that when he issued the order no
effort was being made to clean up the accumulations, and had he
found such an effort taking place he would not have issued the
violation as an order and would have found moderate negligence
(Tr. 50).

257

The inspector testified credibly that after issuing the
order, he was notified later that day by the respondent that · the
cited accumulations had been cleaned up, and he was requested to
return to the mine to terminate the order so that the belt could
be placed back into operation so that coal production could
continue. Upon his return to the mine, .the inspector found that
the cited accumulations had been cleaned up to the extent that
they were below the belt rollers and not in contact with the belt
or the belt rollers, but they had not been completely removed
from the mine and had only been rockdusted to address some of the
hazards. He subsequently terminated the order after additional
people, or a total or ten, were brought in to clean up and remove
all of the accumulations (Tr. 51-54). In explaining the
respondent's abatement efforts, the inspector suggested that the
cited accumulations were the result of similar cleanup efforts,
and he stated as follows in this regard (Tr . 52):
A.

It's a situation where what they had done in
the past -- What they had done in the past
was to remove the coal down below the
rollers, throw rock dust onto it and consider
that to be clean. But the accumulations were
not all removed. There were still
accumulations there. There were several
inches of coal that had not been removed.

Respondent's safety supervisor Kun confirmed that
accumulations around the belt drive had been reported on the -·
previous midnight shift, which would have been on Saturday, two
days before Mr. McDorman's inspection on Monday, as well as the
prior Friday . Although Mr. Kun stated that people were sent to
these areas to clean up and that the fire boss books showed that
these areas had been "cleared", Mr. Kun acknowledged that he had
not visited these areas personally to confirm that they had been
cleaned up and that he simply relied on his review of the mine
books . ·Mr. Kun also acknowledged that he did not visit the area
cited by Mr. McDorman to observe any clean up activity, and I
find his explanations as to how the accumulations may have
occurred, including a suggested belt misalignment, to be .
speculative, less then credible, and that they do not rebut
the inspector's credible testimony in this case .
Although there is no direct evidence to establish precisely
how long the cited accumulations may have existed before the
inspector found them, I conclude and find that they had existed,
as a minimum, as early as the previous Friday, and Saturday,
August 28, and 29, 1992, and more than likely longer than that.
Further, I accept as credible and probative the inspector's
explanation that the "layering" that he discovered indicated that
the existing coal were accumulations were simply covered over
with rock dust and "cosmetically" cleaned up enough to keep them
from contacting belts, but were not totally removed from the

2 58

mine. I also accept as credible and probative the inspector's
explanation .that this was precisely what occurred when he was
called back prematurely to abate his order, and I find his
suggestion that this "cl~anup" practice has contributed to the
respondent's accumulations problems in the mine has a credible
ring of truth about it.
Based on the foregoing findings and conclusions, and
considering the rather extensive accumulations in question, and
my belief that they had existed over a long period of time
without being completely cleaned up and totally removed from the
mine, I conclude and find that the inspector's "high negligence"
finding was warranted. I further conclude and find that
management's failure to promptly act to insure that the
accumulations were cleaned up and removed from the mine before
the inspector found them constitutes aggravated conduct
supporting the unwarrantable failure order in question, and IT IS
AFFIRMED as issued.
Order No. 3717744.

30 C.F.R. § 1403.

In support of the inspector's belief that the violation was
an unwarrantable failure resulting from the respondent's
aggravated conduct, the petitioner argues that the conditions had
existed for several weeks and the area was subject to three daily
preshift examinations, that the respondent had been put on notice
by the safeguard, prior citations, and discussions with the
inspector about the need to properly block and maintain the
track . Under all of these circumstances, the petitioner
concludes that the respondent knew or should have known of the
cited condition but took no action to prevent or correct it
(Posthearing Brief, pg. 40).
I find no credible evidence to support a conclusion that all
of the track conditions had existed for "several weeks". The
inspector confirmed that some of the conditions may have occurred
over a two-day period of time~ When asked how he determined that
the conditions had existed "for previous days or weeks", he
responded that it was his experience from working in the mines
and inspecting the respondent's mines "that these type of
conditions take several weeks to develop" (Tr. 379-380).
Further, I find no evidence that the inspector checked the
preshift mine examiner's books for the prior working shifts to
determine whether the conditions had been reported .
Insofar as the prior safeguard notice relied on by the
inspector is concerned, I find nothing particularly aggravating
or unusual about the fact that it placed the respondent on notice
that it needed to maintain its track system. .That is precisely
why a safe guard is issued. · The fact that subsequent inspections
reveal tracks that are not well maintained and result . in
citations does not, standing alone, indicate aggravated conduct,

259

particular on the facts of this case where the safeguard notice
is framed in rather general and subjective lanquage .such as
"shall be well maintained", without a specific requirement for
blocking, ballasting, or levelling the tracks.
Insofar as the prior citations are concerned (Exhibits G-35
through G-43), I note that they were all issued as section 104
(a) citations, with low to medium negligence findings, and one
was issued as a non-"S&S" citation. Two of the citations cited
improper track gauging, and six citations cited single track
joints with loose or broken fishplates or bolts. Two of the
citations were abated within 15 minutes, one was abated within
2 hours, and the rest were all timely abated within the time
fixed by the inspector. None of these violations appear to have
been issued at the same supply track locations cited by the
inspector in this case.
The prior citations in question must be taken in context,
and I cannot conclude that they are indicative of aggravated
conduct. Considering the size and scope of the respondent's
mining operation, including the extensive underground haulage
system, track deterioration obviously will occur, and when it is
cited as a violation, the respondent is obligated to timely
correct the conditions. Indeed, the inspector himself
acknowledged that given the 55 miles of track at the mine,
"sooner or later you're going to come across a condition where
things are extensive" (Tr. 3 58).
The inspector testified that he had previously discussed the
matter of track blocking with Mr. Kun, and that he seldom
disagreed with him and recognized ehe need to maintain a level
track to prevent it from "fanning" and causing the joints to
loosen. Mr. Kun did not dispute this, and he confirmed that
eight days before issuing his order, the inspector pointed out to
him a track area that needed attention, asked him to take care of
it, and did not issue a violation.
The inspector confirmed that the track system in the mine is
rather extensive and covers an area of 55 miles (Tr. 358). It
would appear to me from the record in this case that maintaining
the tracks level at all times to prevent "fanning" is not an easy
task. Although the inspector issued the violation for loose and
missing track fishplate nuts and bolts, it seems obvious to me
that his principal concern was that the irregular mine floor at
the crosscut intersections caused by mining equipment during the
mining and cleanup cycles presented track blocking and levelling
problems, which in turn, and over time, resulted in the loosening
of the nuts and bolts holding the track rails together
(Tr. 338-341).
Mr. Kun's unrebutted and credible testimony reflects that as
a result of his conversation with the inspector, Mr. Kun

260

discussed the matter with the mine superintendent and foreman,
and a maintenance schedule was established to rehabilitate the
tracks, beginning with the ballasting of the cited two left
track. Work was begun at the mouth of the section, and it
included bringing in and spreading carloads of gravel. At the
time of the inspection on July 22, 1992, the work of blocking and
levelling the track to address the "fanning" problem had
progressed at least 9 or 10 blocks, which included some of the
areas cited by.the inspector (Tr. 366-367). Under the
circumstances, I cannot conclude that the respondent was ignoring
the problem brought to its attention by the inspector. Quite the
contrary is true. The respondent had undertaken a major step in
rehabilitating its erack system at the problem intersections, and
was engaged in this work at the time of the inspection. The fact
that it may not have been working at the pace suitable to the
inspector, does not in my view constitute aggravated conduct.
Based on the foregoing findings and conclusions, and after
careful consideration of all of the testimony and evidence in
this case, I conclude and find that the petitioner has failed to
prove that the·· violation in question constituted an unwarrantable
failure to comply with section 75.1403. Under the circumstances,
the inspector's finding in this regard IS VACATED, and the
section 104(d)(2) "S&S" Order IS MODIFIED to a section 104(a)
"S&S" citation.
Order No. 3121656.

30 C.F.R.

§

75.701-5.

In support of the inspector's unwarrantable failure
determination, the petitioner asserts that management knew that
the cited grounding method was improper and either knew or should
have known that the cited box was so grounded (Posthearing Brief,
pg. 30). The petitioner further relies on the fact that several
prior citations had been issued at the mine for similar
conditions (Exhibits G-24 through G-28), the ground feeder wire
had been torn loose from the clamp and rolled up and stored in
the cross-cut behind the cited box for as long as ten days, the
cited box had been cited on two prior occasions for improper
grounding in that the return power conductor and the frame ground
were attached to a single piece of track bond (Exhibits G-29 and
(G-30), and the fact that the inspector had discussed the
practice of improperly grounding electrical equipment with mine
management.
In this case, the respondent was charged with a violation of
the specific requirements found in section 75.701-5, namely, the
use of separate clamps for attaching grounding wires to the mine
track or other grounded powers· conductors. It has not been
changed with a failure to connect both ends of the track bond to
the track. As correctly noted by the respondent in the course of
the trial, the track bonding issue has been a matter of continued
litigation -between the parties, and a recent settlement of that

261

issue in connection with a section 104(a) non-"S&S" citation with
an assessment of $20, has apparently laid that matter to rest
(Tr. 166). The parties also confirmed that in several other
track bonding cases, the inspectors have cited violations of
section 75.703-1, and 75.701-3 (Tr. 167-168). In this case, the
inspector confirmed that the violation concerns the specific
requirements for separate clamps as stated in section 75.701-5
(Tr. 191).
I take note of the fact that the two prior citations issued
for violations at the same 8 West ADO breaker box were issued in
December, 1989, and March, 1983. Aside from the age of those
violations, they would appear to concern the respondent's track
bonding methods rather than the use of separate clamping devices.
The 1998 citation cites a violation of Section 75.701, and not
75.701-5.
With regard to the five citations issued approximately two
weeks before the contested order in this case, I . note that they
were all issued by Inspector Kalich and they all cited violations
of section 75. 1·01, and not 75. 701-5. When asked to state the
number of times . he cited the respondent with violations of
section 75.701-5, the inspector responded "I don't know"
(Tr. 256). When asked if his prior citations concerned the lack
of double clamps, the inspector responded that it was his view
that sections 75.701 and 75.705-5 "would be interchangeable"
(Tr. 219). The petitioner's counsel conceded that none of these
prior citations cited violations of section 75.701-5, for failure
to use separate clamps (Tr. 222). I find the inspector's
responses to be rather evasive, and based on the petitioner's
admission that none of these prior citations concerned section
75.701-5, I have given them little weight and find that they do
not support ' the inspector's unwarrantable failure finding.
With regard to the petitioner's assertion that the rolled up
conductor wire had been placed in the crosscut prior to the
citation, the inspector's belief in this regard was based on a
purported statement by the foreman that track cleaners were in
the area. From this statement, the inspector assumed that the
wire had been pulled loose and rolled up and left by the track
cleaners. None of these individuals are identified, none were
contacted by the inspector, and none testified in this case
(Tr. 237-241). Under the circumstances, I find no credible or
probative testimony supporting the inspector's belief, and his
hearsay testimony on this point is rejected and given little
weight. As a matter of fact, the .inspector conceded that the
rolled up feeder wire had nothing to do with the failure to use
separate clamps (Tr. 260).
The inspector asserted that management knew that the cited
"grounding method" was not . approved by MSHA because of "various
discussion that we've had with mine management in the past ten

262

years" and that whenever it has been cited, "its always been
corrected by installing separate bonds and providing separate
connections" (Tr. 231-232). When asked to explain why no section
(d) orders have been issued over the past ten years if in fact
the respondent has been in violation that long, the inspector
could not answer (Tr. 232).
With regard to his asserted discussions with mine management
concerning his prior citations of July 6, and 13, 1992, Inspector
Kalish stated that he conducts conferences on every violation
that he issues and speaks to the individual who receives the
citation. He testified that he "more than likely" discussed them
with the mine superintendent and with safety director Kun
(Tr. 225). When asked if he not~d the discussions in his
inspection notes, Mr. Kalich stated that he did not ·h ave his
notes with him, and when asked why, he responded that he did not
believe they were relevant (Tr. 225-226). He later contended
that his discussions included the use of separate clamps
(Tr. 225).
Inspector .Kalich stated that his prior citations were served
on foremen Eddy· and Coker, and that he discussed them with these
individuals (Tr. 226). Mr. Coker did not testify in this case.
Foreman Eddy confirmed that three of the prior citations issued
by Mr. Kalich were served on him and that he was aware that
Mr. Kalich did not approve of the use of a single track bond
attached to the track as a suitable grounding device, but he was
not asked if Mr. Kalich had ever discussed the use of separate
clamps as stated in section 75. 701-5. (Tr. 282-283).
Mr. Eddy took the position that the prior citations served
on him had nothing to do with the number of clamps used to attach
grounds to the grounded power conductor and that they all
concerned the use of a single track bond and the failure to tack
the other end of the bond to the track, and did not ·concern
violations 6f section 75.701-5 (Tr . 309) . Mr. Eddy also
confirmed that although he and his supervisors disagreed that the
prior cited conditions were violations, they were abated and he
began checkipg the equipment to comply with the· inspector's
abatement requirements (Tr. 290-291).
The unidentified mine superintendent referred to by the
inspector did not testify in this case. Although Mr . Kun
testified in regard to other violations, he was not called to
testify about this citation. I find no credible evidence to
support the petitioner's assertion that the inspector discussed
the specific requirements of section 75.701-5, with mine
management prior to the issuance of his order. I also find that
he did ·not discuss the matter with foreman Eddy either.
The petitioner's assertions that the prior citations issued
by the inspector, and his asserted discussions with mine

263

management, clearly support a finding of aggravated conduct are
rejected. I conclude and find that the prior citations
concerning ·a different regulatory standard are irrelevant,
and I have concluded that there is no credible evidence that
the inspector discussed the specific requirements of
section 75.701-5, with mine management.
It would appear to me from the record in this case that the
issue of separate clamps found in section 75.701-5, has been
clouded by the interjection of the single track bond issue raised
by the prior citations, as well as the inspector's order. Adding
to the confusion, in my view, is the "will be approved" language
found in section 75.702-5, which suggests that some sort of
approval process 'is available to .a mine operator seeking
alternative methods of grounding (Tr. 245-249). counsel for the
parties confirmed that prior litigation and discussions have
taken place, that MSHA has "informally approved" a type of track
bond not specified in the regulation, and the respondent's
counsel stated that a written request made to MSHA's district
manager in this regard has not been answered (Tr. 250-251).
There also appea~s to be a difference of opinion among the
parties as to precisely what is required to maintain compliance
with the cited standard.
Based on the foregoing findings and conclusions, and after
careful consideration of all of the evidence in this case, I
conclude and find that the petitioner has failed to prove that
the violation in question was the result of the respondent's
aggravated conduct amounting to an unwarrantable failure to
comply with section 75.701-5. Under the circumstances, the
inspector's finding in this regard IS VACATED, and the
section 104(d) (2) "S&S" Order IS MODIFIED to a section 104(a)
"S&S" citation.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
I conclude and find that the respondent is a large mine
operator and the parties have stipulated that payment of the
civil penalty assessments for the violations in question will not
adversely affect the respondent's ability to continue in
business.
·
History of Prior violations
The petitioner's computer print-outs for the Osage No. 3
mine for the period August 1, 1990, through August 30, 1992,
reflect that the respondent paid .civil penalty assessments for
fifty-two (52) violations of section 75.400, fifteen (15) of
which were "single penalty" non-s&s citations; four (4)
violations of section 75.701-5, and fifty-seven (57) violations
of section 75.1403, seventeen (17) of which were non-s&s, "single

264

penalty" assessments. For an operation of its size, I cannot
conclude that this is a particularly egregious compliance record
warranting additional civil penalty assessments for the
violations which have been affirmed.
Good Faith Abatement
In the absence of any evidence to the contrary, I conclude
and find that the respondent timely abated the violations in good
faith.
Gravity
Based on 'my "S&S" findings and conclusions, I conclude and
find that the violations affirmed as "S&S" violations were
serious violations.
Negligence
I conclude and find that the violation of section 75.400,
resulted form a high degree of negligence, amounting to
aggravated conduct. I further conclude and find that the
violation of section 75.1403, and section 75.701-5, were the
result of the respondent's failure to exercise reasonable care
amounting to a moderate degree of negligence on the part of the
respondent.
ORDER
Section 104(d) (2) "S&S" Order No. 3122087, August 6, 1992,
citing a violation of 30 C.F.R. § 75.316, has been settled, and
the respondent has agreed to pay a civil penalty assessment of
$3,000, in settlement of the violation. The respondent IS
ORDERED to pay this amount to MSHA in settlement of the
violation.
In view of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section llO(i) of the Act, IT IS FURTHER ORDERED AS FOLLOWS:
1.

Section 104(d) (2) "S&S" Order No. 3122095,
August 31, 1992, 30 C.F.R. § 75.400 , IS
AFFIRMED AS ISSUED, and the respondent shall
pay a civil penalty assessment of $3 ,000, for
the violation.

2.

Section 104(d) (2) "S&S" Order No. 3717744,
July 22, 1992, 30 C. F. R. § 75 . 1403, IS
MODIFIED to a section 104(a) 11 s&s 11 citation,
and as modified , IT IS AFFIRMED . The
respondent shall pay a civil penalty
assessment of $1,000, for the violation.

26 5

3.

Section 104(d) (2) "S&S" Order No. 3121656,
July 21, 1992, 30 C.F.R. § 75.701-5, IS
.
MODIFIED to a section 104(a) "S&S" citation,
and as modified, IT IS AFFIRMED.The
respondent shall pay a civil penalty
assessment of $1,000, for the violation.

IT IS FURTHER ORDERED that payment of the aforementioned
civil penalty assessments, including the settlement amount, shall
be made to .the petitioner (MSHA) within thirty (30) days of the
date of this decisions and Order. Upon receipt of payment, this
case is dismissed.

~~~~

Administrative Law Judge

Distri}?ution:
Roberts. Wilson, · Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203
(Certified Mail)
Daniel E. Rogers, Esq., Joan W. Yoho, MSHA Specialist, Consol
Inc., 1800 Washington Road, Pittsburgh, PA 15241-1421
(Certified Mail) .
/ ml

266

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
6203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

BETHENERGY MINES, INCORPORATED, :
Contestant

.

v.

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

1994

CONTEST PROCEEDINGS
Doc~et No. PENN 92-511-R
Citation No. 3705954; 4/10/92

Docket No. PENN 92-512-R
citation No. 3705227; 4/21/92
Docket No. PENN 92-514-R
Citation No . 3705229; 4/22/92
Docket No. PENN 92-515-R
citation No . 3705230; 4/23/92
Docket No. PENN 92-516-R
Citation No. 3705231; 4/23/92

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

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 92-595
A.C. No. 36-00840-03815

v.

BETHENERGY MINES, INCORPORATED,
Respondent

Docket No. PENN 92-643
A. C. No. 36-00840-03818
Docket No. PENN 92-652
A.C. No. 36-00840-03817
Cambria Slope Mine #33
Mine ID 36-00840

DECISION
Appearances:

John Strawn, Esq., Office of the Solicitor,
Philadelphia, Pennsylvania, for the
Respondent/Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for the
contestant/Respondent.

Before:

Judge Barbour

These consolidated contest and civil penalty proceedings
arise respectively under Sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977 ("Mine Act" or "Act"), 30 u.s . c .
SS 815, 820, and involve the interpretation and application of
certain of the Secretary of Labor's ("Secretary") mandatory
safety standards regulating the ventilation of underground coal

26 7

mines. Citations charging the violations were issued by the
Secretary's Mining Enforcement and Safety Administration ("MSHA")
to BethEnergy Mines, Inc. ("BethEnergy"), at its Cambria Slope
No. 33 Mine ("Mine No. 33"). BethEnergy contested the citations
and the proposals of the secretary for the assessment of civil
penalties and the cases were the subject of a duly noticed
hearing in Indiana, Pennsylvania, at which R. Henry Moore
represented BethEnergy and John Strawn represented the Secretary.
STIPULATIONS
At the commencement of the hearing the parties stipulated as
follows:
1. Mine No. 33 is owned and operated by
BethEnergy.
2. Mine No. 33 is subject to the
jurisdiction of the Act.
3. The Administrative Law Judge has
jurisdiction over these proceedings.
4. The subject citations were properly
served by duly authorized representatives of
the Secretary on agents of BethEnergy on the
dates and at the places stated therein and
may be admitted into evidence for the purpose
of establishing their issuance and not for
the truthfulness or relevance of any
statements asserted therein.
5 . The assessment of civil penalties
for any violations found to have occurred
will not affect BethEnergy•s ability to
continue in business.
6. BethEnergy is a large company and
Mine No. 33 is a large mine.
7. Mine No. 33 was assessed a total of
624 violations between April 1990 and April
1992. These assessed violations were cited
during 1,324 inspection days.
8. The exhibits of the parties are
authentic.
9. All citations at issue were abated
in a timely fashion.
See Tr. 16-17.

268

The parties also concurred as follows:
1. In Docket No. PENN 92-512-R
BethEnergy is contesting Citation
No. 3705227. This same citation is one of
two at issue in penalty proceeding Docket No.
PENN 92-652. The parties agree that the
decision concerning this citation will
control that portion of Docket No.
PENN 92-595 in which the Secretary is seeking
a civil penalty assessment for Ci tation
No. 3705986, an alleged violation involving
circumstances similar to Citation No.
3705227.
2. In Docket No. PENN 92-514-R
BethEnergy is contesting Citation No.
37095229, the second citation at issue in
penalty proceeding Docket No. PENN 92-595.
The parties agree that the decision
concerning this citation will control the
outbome of Docket No. 92-515-R in which
Beth.Energy contests Citation No. 3705230, a
citation involving circumstances similar to
citation No. 3705229.
See Tr. 17-19.
MOTIONS TO WITHDRAW

Prior to the taking of testimony, counsel for the Secretary
stated MSHA agreed to vacate Citation No. 3705954. The citation
is the subject of contest proceeding Docket No. PENN 92-511-R and
civil penalty proceeding Docket No. PENN 92-643. As a result,
counsel for BethEnergy moved to withdrawn BethEnergy•s contest of
the citation and counsel for the Secretary moved to withdraw the
Secretary's civil penalty petition. Tr. 20-21. In addition, ·
counsel for BethEnergy announced that Citation No. 3705231, the
subject of contest proceeding Docket No. PENN 92-516-R, had been
vacated by MSHA and counsel for BethEnergy moved to withdraw its
contest. Tr. 13, 21.
I orally granted the motions. Tr. 21. The agreements and
motions to withdraw left three citations to be tried.
DOCKET NO. PENN 92-595

Citation No.

Date

30 C.P.R. S

Proposed Penalty

3705944

3/19/92

75.309(a)

$506

269

Citation No. 3705944 states in part:
The split of air returning from the 026
No. 1 longwall thru the No. 2 entry of 7 left
& east main contained 1.3% of methane when
tested at a point between the two
regulators[,] [n]ot less than 12 inches from
the roof and rib. A[n] air sample bottle has
been collected at this location.
P. Exh. 2.

30 C.F.R. § 75.309(a), which reiterated Section 303(i) (1) of
the Act, 30 U.S.C. § 863(i) (1), stated:
If, when tested, a split of air
returning from any working section contains.
1.0 volume per centum or more of methane,
changes or adjustments shall be made at once
in the ventilation in the mine so that such
returnipg air shall contain less than 1.0
volume per centum of methane. Tests under
this (section] shall be made at 4-hour
intervals during each shift by a qualified
person designated by the operator of ~he
mine. In making such tests, such person
shall use means approved by the Secretary for
detecting methane.
Section 309(a) has been replaced by 30 C.F.R. § 75.323(c),
as part of the Secretary's general revision of the standards for
underground coal mine ventilation. 57 F.R. 20914 (May 15, 1992).
RELEVANT TESTIMONY
THE SECRETARY'S WITNiSSES
SAMUEL J. BRUHATTI
Samuel J. Brunatti, an MSHA inspector, testified that Mine
No. 33 liberates more than a million cubic feet of methane every
24 hours and therefore, pursuant to Section 103(i) of the Act,
30 u.s.c. § 813(i), all or part of the mine must be inspected
every 5 working days at irregular intervals.
(Such inspections
are known to as section 103(i) "spot inspections.") On
March 19, 1992, Brunatti went to the mine to conduct such an
inspection.

270

Brunatti traveled first to the longwall section where he
detected methane in a split of air returning from the longwall
face (the "split return"). The methane was in the No. 2 entry on
the headgate side of the longwall. Brunatti stated that the
No. 2 entry not only returned air from the longwall face, in
addition, some air traveled from the gob into the No. 2 entry.
Therefore, he described the No. 2 entry as having a dual
ventilation purpose. Tr. 61, 64.
Prior to reaching the point at which he tested for
methane, Brunatti stated he was told by BethEnergy's foreman,
Michael Baker, that methane was present on the longwall.
Tr. 35-36. Baker also told Brunatti that because of the methane,
Baker had shut down the longwall and de-energized the longwall .
face equipment during the previous shift. The equipment had not
been restarted. Tr. 52
Following the conversation with Baker, Brunatti traveled to
Evaluation Point No. 62 ("EP-62") where he tested for methane in
the split return between two regulators. The test revealed a
methane content of 1.3 percent. Tr. 38, 52. Brunatti waited for
approximately ~wo hours and when the methane level did not drop,
he issued Citation No. 3705944. Tr. 38-40, 69. Brunatti stated
he understood that an inspector was supposed to wait a
"reasonable time" to determine if the methane level would fall
below 1.0 percent before citing a violation of section 75.309(a).
Tr. 56-57. He testified:
If I would find the methane or one of
[the operator's] foremen [would find it],
[the operator] is, according to our program
policy manual, to make changes or adjustments
in the ventilation system itself at once. If
he's doing this, [and] that methane goes
down, we don't issue the violation. However,
if he makes ventilation changes at once and
after a reasonable amount of time, then that
ventilation isn't going down, we can issue
the violation.
Tr. 71. Brunatti maintained that when he issued Citation
No. 3705944, he knew only that Baker had de-energized and shut
down the longwall.
Brunatti acknowledged that section 75.309 had been revised
and superseded by section 75.323 and he read from MSHA's preamble
to the revision that "limiting the rate of production of coal to
permit the existing ventilation system to' maintain the level of
methane below 1.0 percent constitutes a reasonable action to
control the rate of methane and is acceptable." Tr. 68. He
maintained, however, that stopping longwall production was not
the type of "change or adjustment" that had to be made "at once"

27 1

under section 75.309. Tr. 65. He noted that the mine liberated
high quantities of methane, most of it coming from the longwall
gob. Tr. 44, 54. If longwall production was stopped, the gob
would not cease to liberate .methane. The roof would continue to
fracture in the gob and methane emissions would continue.
Tr. 68.
Brunatti testified he was told later by the mine foreman
that the foreman had instructed Baker to try to induce more air
into the return split from the 8-left side, the headgate side, of
the longwall. Tr. 39. Brunatti believed there were other things
BethEnergy could and should have tried to dilute the methane -things such as routing additional air from the drill site to the
No. 2 entry, opening fully the regulators at EP-62 and
redirecting ventilation so as to add to air at the longwall face.
Tr. 40-42, 54. He acknowledged, however, that such redirection
of the air probably would have involved major ventilation changes
and therefore would have required MSHA approval. Tr. 55.
To abate the citation BethEnergy reversed the direction of
airflow in the No. 2 entry and what Brunatti and MSHA had
regarded as a split return became a bleeder entry. Tr. 51.
Methane i~ not r~quired to be maintained at or below 1.0 percent
in a bleeder entry. Tr. 57.
BETBINERGY'S WITNESSES
ROBERT PUBREUCQ
There are two seams from which coal is extracted at Mine
No. 33, the B seam and the C seam. The B seam is the lower of
the two seams . . Tr. 78. BethEnergy has been mining the B seam
since 1964 approximately and its underground workings are among
the most extensive in the industry. Tr. 81. Robert DuBreucq is
superintendent of the B seam.
DuBreucq testified that at approximately 6:30 a.m., on
March 19, 1992, at the end of the midnight shift, 1.3 percent
methane was discovered by the section foreman in the No. 2 entry
off of 7-left. Upon detecting the methane, the section foreman
shut off the electric power to the face area and ceased · longwall
operations. Tr. 82. The midnight shift ended at 7:30 a.m., and
Brunatti arrived in the area shortly after the day shift had
begun. Brunatti was informed of the shutdown. Id.
According to DuBreucq, in addition to shutting down the
longwall, changes were made in the ventilation in that a
regulator at EP-62 was opened fully and the air at the drill site
was decreased from 12,000 cfm to 9,ooo cfm, the minimum allowed
by the ventilation plan. Less air at the drill site meant
increased air on 7-left. Tr. 84, 119. Finally, all of the bore
holes were checked to make certain they were functioning at full

2 72

capacity. OuBreucq did not know if these steps to alter the
ventilation had been brought to Brunatti's attention.
Tr. 84, 111-112, 119.
.
DuBreucq maintained that BethEnergy did all it could to
bring down the level of methane short of making major changes in
ventilation, that would have required MSHA's approval. DuBreucq
stated that by 2:30 p.m., methane readings were below 1 percent
and mining was resumed. Tr. 97.
DuBreucq described the No. 2 entry off 7-left as a bleeder
entry which was designed to move methane-air mixtures away from
active workings, out of the gob and into the return air course.
Dubreucq acknowledged that the No . 2 entry also moved air that
had crossed the longwall face, and that because of this MSHA
believed the entry was a split return, that is an entry that
carried air away from a working section. However, because the
air that crossed the longwall f ace and entered the No. 2 entry
also mixed with air coming off the gob through bleeder
connectors, the No. 2 entry, in Dubreucq's opinion, became a
bleeder entry after the air from the face and gob had mixed.
Tr. 87. (DuBreucq stated " [ T]he fact is, a split return cannot
be influenced by air: from another split or air coming out of the
bleeder connector. " Tr. 8 7. )
DuBreucq described a bleeder connector as a crosscut
connecting the gob to the bleeder entry. He also identified a
crosscut immediately adjacent to the tailgate end of the
longwall. The crosscut connected the No. 1 entry with the No. 2
entry. The stopping in the crosscut had been holed through so
that air passed freely through the crosscut. Tr. 98. ("B" on
Exh. R-1.)
Several other such crosscuts with holed through
stoppings also served as bleeder connectors.
DuBreucq described how air that had crossed the longwall
face passed through "B" and into the No. 2 entry. In addition,
he described how some of the air at the face did not reach the
end of the longwall but rather traveled over the gob and out the
other bleeder connectors into the No. 2 entry. Tr. 94. In
OuBreucq's view, the function of the No. 2 entry was .to carry gas
coming off the longwall and gas coming out of the gob back to
EP-62 and thence into the main return air course. Tr. 91. Thus,
when Brunatti tested for methane at the EP-62, he tested air that
had ventilated the longwall gob as well as air that had crossed
the longwall face. Tr. 91-92, 96.
Because the gob was not part of the working section,
DuBreucq believed that under section 75.309 when a test for
methane was made of "a split of air returning from any working
section" it should be made before the air mixed with air that had
ventilated the gob. Tr. 102; Exh. R-1 at "C".

273

DuBreucq stated that even though BethEnergy considered the
No. 2 entry to be a bleeder entry, the company was well aware
MSHA regarded it to be a split return entry -- that is as a split
of air returning from a working section -- which is why
BethEnergy shut down the longwall when 1.3 percent methane was
detected. Tr. 89-90.
To abate the violation BethEnergy revised its ventilation
plan. Under the revised plan, air traveled from the tailgate end
of the No. 2 entry outby to 7-left, rather than from the tailgate
end of 7-left inby to EP-62 and what had been intake air became
return air. In addition, some of the air that formerly had come
up the tailgate entry from 7-left was diverted to the headgate
side from 8-left and crossed the face from the headgate to the
tailgate side.
PARTIES' CONTENTIONS

Brunatti found that the split of air returning from the
longwall through the No. 2 entry contained 1.3 percent methane
when tested at EP-62. The longwall had been shut down on the
previous shift, but simply shutting down the longwall and waiting
was not sufficient for compliance with the regulation. Other
steps could and should have been taken.
Sec. Br. 12-14.
Because it is undisputed that the No. 2 entry contained air from
the longwall face, the air tested at EP-62 was from a split of
air returning from a working section. The presence of 1.3
percent methane required BethEnergy to make immediate changes or
adjustments in the ventilation other than shutting down the
equipment which it did not do. Therefore, the violation existed
as charged. Sec. Br. 15.
The Secretary dismisses BethEnergy's argument that the entry
was a bleeder entry. The Secretary notes that BethEnergy shut
down production because of the 1.3 percent level of methane. If
BethEnergy really believed the entry was a bleeder entry it would
not have taken this drastic step. It could have resolved the
issue easily by negotiating a change in its ventilation plan with
MSHA prior to being cited. Sec. Br. 14-15.
BethEnergy argues section 75.309(a) did not apply to the
cited entry. It notes that section 75.309-2 specified where the
methane content was to be measured for a split of air returning
from a working section -- 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." Thus, according
to BethEnergy, the purpose of section 75.309(a) was to regulate
the amount of methane coming from the working section before any
methane from other areas mingled with it. BethEnergy Br. 7-10.
Brunatti did not find methane in excess of 1.0 percent in a
location uninfluenced by air from another air current. Rather,

2 74

the air he tested already had mixed with the .air from the gob.
Since the air measured by Brunatti included air from the gob,
which was an abandoned area, the air was not covered by the
standard. BethEnergy Br. 9-10.
In the alternative, BethEnergy argues it complied with the
standard, in that the record supports finding it made the
required changes or adjustments in ventilation upon discovery of
excessive methane by ceasing mining, de-energizing face
equipment, fully opening a regulator at EP-62, increasing the air
flowing from the drill site and by determining whether the bore
hole fans were operating properly. BethEnergy Br. 11-15.
THE VIOLATION

Because it is agreed the air tested by Brunatti contained
more than 1.0 percent methane, the initial question is whether
the air at EP-62 -- "the air returning from the No. 2 entry of
7-left & east main" -- was "a split of air returning from any
working section." If not, the Secretary has failed to prove the
violation and the question of whether BethEnergy undertook
"changes or adjustments ..• at once in the ventilation in the
mine" need not be addressed.
The No. 2 entry was the middle of three entries that made up
the tailgate side of the longwall. Intake air was brought up the
headgate entries and across the longwall face. In what may have
been a somewhat unusual configuration for longwall ventilation,
intake air also was brought up the tailgate entries. Intake air
from the headgate side crossed the face and at the tailgate end
of the longwall mixed with intake air from the tailgate side
before passing through the open crosscut into the No. 2 entry.
As the testimony of both Brunatti and DuBreucq establish headgate
intake air also moved from the face over the gob and traveled to
the No. 2 entry through the series of bleeder connectors that had
been created as the longwall advanced.
(This ventilation system
is best depicted on Resp. Exh. 1.) Thus, the air that traveled
the No. 2 entry inby the longwall and that passed through EP 62,
was a mixture of headgate air that had crossed the longwall face,
headgate air that had passed over the gob and traveled through
the bleeder connectors into the No. 2 entry, and tailgate air
that had traveled up the tailgate side of the longwall.
A "split" is defined as "[a] current of air which has been
separated from the main intake to ventilate a district in a
mine." U.S. Department of the Interior, A Dictionary of Mining,
Mineral. and Related Terms (1968} at 1056. The intake air
ventilating the longwall constituted a split, but was the air
tested by Brunatti "returning from any working section?"
Regulation 30 C.F.R. S 75.2(g} (3) defines "working section"
as "all areas of the coal mine from the loading point of the

275

section to and including the working faces. certainly, the air
tested by Brunatti contained air that had ventilated areas to and
including the working face, i.e., the longwall. "The problem is
that the air tested also contained air that had ventilated the
gob, an area not a part of the "working section." Did this mixed
air qualify as "air returning from any working section" within
the meaning of section 75.309(a)?
The standard could be read to include such air. Strictly
speaking, some of the air had traveled inby the loading point and
crossed the working face. In this instance, I am persuaded,
however, that construing the standard to exclude such mixed air
from the gob is more in tune with its intent.
Under the ventilation standards then in effect permissible
methane levels varied with respect to air returning from a
working section and air returning from the gob, as the criteria
for the approval of ventilation system and methane and dust
control plans made clear. 30 C.F.R. § 75.316-2(d) set as a
minimum level of protection that all such plans insure the
methane content in any return aircourse other than an aircourse
returning from th~ split air from a working section not exceed
2.0 percent. Presumably, the reason for the different levels of
methane allowed in the different types of returns was the desire
to assure miners in working sections of enhanced protection
against methane related ignitions and explosions, a protection
afforded by a strict 1.0 percent level in air that had ventilated
a working section. This made sense given the usual presence of
miners in working sections and the number of potential ignition
sources therein. Presumably, as well, the level of protection
was not as stringent in other types of returns because miners
were not usually working or traveling in such returns.
Because under the particular circumstances of this case, the
air tested by Brunatti did not indicate the methane content of
air returning from the working section, but rather indicated the
methane content of air returning from the working section and
from a part of the mine other than the working section, I find
that it did not come within section 75.309(a).
This is not to say that such mixed air always would have
been outside the confines of the standard. There might have been
situations in which such air only could have been tested after it .
mixed with air that had ventilated an area other than a working
section, and in such a case, application of the standard might
well have been necessary to assure miners in the working section
the level of protection afforded by the standard. However, here
the return air that had ventilated the working section could have
been tested at the tailgate end of the longwall before it mixed
with the air that had ventilated the gob. The result of such a
test that would have indicated the methane connect of the split
of air returning from the No. 1 longwall working section and

2 76

would have indicated with certainty whether or not BethEnergy was
in compliance with section 75.309{a).
While I conclude, the Secretary has not proven a violation
of section 75.309(a), my decision in no way implies a criticism
of Brunatti. As I have indicated, the manner of ventilating the
longwall apparently was unusual. The practical effect was the
creation of a return aircourse that did not clearly come within
the then existing regulations. The inspector, acting in good
faith, tried to fit the system into the regulations and to do so
in the face of an acknowledged disagreement between MSHA and the
company as to the nature of the return air. In hindsight, the
matter might have been handled better through the ventilation
system and methane and dust control plan provision of the
regulations -- a provision to which the parties ultimately
resorted in carrying out abatement of the alleged violation .
DOCKET NO. PENN 92-512-R
DOCKET NO. PENN 92-652

CitatiOD \ No.
3705227.

Date
4/21/92

30 C.F.R. S
75.316

Proposed Penalty
$204

Citation No. 3705227 states in part:
The air current flow exiting from
the approved bleeder evaluation point
{Co. No. 62) contained methane readings of
2.6% thereby exceeding the maximum allowable
level of 2.0%. This bleeder evaluation point
is approved in lieu of traveling the bleeder
entry for the active 8 left E-East No. 1 L.W.
(026) working section's gob line. Two (2)
air samples were collected at the inby end of
this bleeder evaluation point w(h]ere 2.6%
methane was detected with an air quantity of
47,988 cubic feet per minute passing thru.
P. Exh. 4.
Section 75.316, which restated Section 303(0) of the Act,
30 u.s.c. S 863(0), required the operator to adopt and MSHA to
approve a ventilation system and methane and dust control plan
suitable to the mining system of the coal mine involved. Like
section 75.309, section 75 . 316 also was revised, subsequent to
the issuance of the contested citation. 57 F.R. 20868, 20914
(May 15, 1992). The ventilation methane and dust control plan
provisions now are found at 30 C.F.R. S 75.370.

277

RELEVANT TESTIMONY ·
THE SECRETARY'S WITNESSES
NEVIN JOHN DAVIS
Nevin John Davis, an MSHA inspector, testified that on
April 21, 1992, he conducted an inspection at the mine in the
company of Mike Baker, company longwall general assistant, during
which the inspection party proceeded to EP-62.
(Although the
phrase "BP-62 11 was used by Davis to refer to the bleeder
evaluation point, the location is the same as that previously
described as EP-62 and for the sake of consistency, I will use
the latter term. Tr. 144.) Davis explained that a bleeder
evaluation point is an agreed upon place at which to evaluate air
to assure the gob is properly ventilated. such points are used
when gob areas can not be traveled due to roof conditions.
Tr. 129.
The air at EP-62 was checked weekly by a company
examiner. Tr. 137.
Davis took an air reading using a smoke tube in order to
determine the direction in which air was traveling and then took
a methane reading using a methane detector. Tr. 125-126.
Davis found a methane level of 2.6 percent. Davis identified a
copy of the ventilation system and methane and dust control plan
then in effect for the mine. P. Exh. 7. He noted that on
page 4, the plan stated bleeder entries were to be examined at
least weekly to determine whether they were functioning as
required by 30 C.F.R. § 75.316-2{e) (1). Reading section
75.316-2(e) and section 75.316-2{e) (1) together, Davis believed
the approved ventilation plan required compliance with all of the
requirements of section 75.316-2, including section 75.316-2(h),
which stated that "[t]he methane content of the air current in
the bleeder split at the point where such split enters any
other air split should not exceed 2.0[%]." Tr. 148-150. In
Davis' opinion, a methane reading in excess of 2.0 percent
could indicate a methane buildup in the longwall gob area.
Tr. 130. Davis agreed, however, that there was no language in
section 75.316-2(e) (1) that specifically limited methane to
2 percent at an evaluation point. Tr. 140.
Davis took contemporaneous notes to document the conditions
he found during the inspection. He also made a sketch to depict
the conditions. P. Exh. 5 at 24. Referring to that sketch,
Davis explained that EP-62 was located at a crosscut that
intersected with a main return entry coming from A left east.
The return air from A left east and the return air from the
bleeder mixed at the mouth of the crosscut and the main return.
Davis referred to this as the "mixing point." Tr. 131.

27 8

(The mixing point is indicated by the "squiggly" line on the
sketch. See P.Exh. 5 at 24.) Davis determined where the two air
currents mixed with the smoke tube. Davis then went into the
crosscut to measure the quality of air at the evaluation point.
Tr. 132. He calculated an air volume of 47,000 cfm. Tr. 137.
Davis stated that when measuring methane at EP-62 he
believed it important to measure inby the mixing point in order
to get a "true" reading of the methane content of the air coming
off of the gob. If the reading were taken outby, in the area of
mixed air, the result would have indicated the methane content of
air coming off the gob and methane from the A left east return.
Tr. 132. Davis believed the mixed air would have had a lower
methane content than the gob air. Therefore, Davis moved 17 feet
into the crosscut (i.e., the bleeder connector) to test the air
before it mixed. Tr. 137.
JOSEPH D. HADDEN
Joseph D. Hadden is the ventilation supervisor of MSHA
District 2, the district in which Mine No. 33 is located.
Hadden has been the district ventilation supervisor since 1986.
As such, one of his duties is to review the ventilation plans
operators submit and to recommend whether or not MSHA approve
them. (The plans are submitted to MSHA on an annual basis and are
reviewed every six months.) He estimated that since 1986, he has
reviewed more than 800 such plans, none of which allowed methane
levels at bleeder evaluation points to exceed 2.0 percent, and in
fact, he would not recommend for approval a plan containing such
a provision. Tr. 155 .
Once MSHA approves a plan, an approval letter is sent to the
operator. Hadden identified an approval letter for a six month
review of the plan for No. 33 Mine. Tr. 157; P. Exh. 8. The
letter is dated October 28, · 1991, and is from the district
manager of District 2 to R. E. Stickler, manager of operations
for BethEnergy. The letter states in part, "These plans and all
criteria listed under Section 75.316 ... shall be complied with."
P. Exh. 8.
Until 1993, the sentence was included in all
approval letters as a matter of district policy. Tr. 157,
164-165. Hadden maintained the statement conveyed to BethEnergy
that no more than 2 percent methane in the air at bleeder
evaluation points was allowed because that was what one of the
criteria -- section 75.316-2(h) -- required. Tr. 157, 159.
Hadden acknowledged, however, that the plan for Mine No. 33
lacked a specific statement that the methane content of air at a
bleeder evaluation ·point could not exceed 2.0 percent. Tr. 161.
He further agreed that when section 75.316-2(h) stated that the
methane content of air should not exceed 2.0 percent "at the
point where
[the bleeder) split enters any other split,"
the "point" had been interpreted to mean the mixing point and

279

that the bleeder evaluation point was not necessarily always the
same as the mixing point. Tr. 161. Nonetheless, he believed the
measurement of air at the bleeder evaluation point should have
been made "[i]nby the mixing point" and "anywhere in that air
course where another air split hasn't entered into that air."
Tr. 162.
BETHENERGY'S WITNESSES
ROBERT DUBREUCO

DuBreucq indicated that the question of the percentage of
methane allowe.d in a . bleeder split had been a subject of
controversy between the company and MSHA for some time.
Tr. 178-179. DuBreucq testified that in his opinion, section
75.316-2(h) was not a part of the approved ventilation plan for
the mine. Tr. 175. However, if it applied he believed that
Davis had not taken the methane measurement where the· criterion
required. He explained that when section 75.316-2(h) specified a
2.0 percent limit for the methane content "of the air current in
the bleeder split at the point where such split enters any other
air split," it i~plied that the measurement of the air current
should be made at the mixing point. Tr. 173, 184. DuBreucq
testified he asked Davis what the methane content of the air was
at the mixing point and that Davis told him it was "probably
below 2 percent." Tr. 175.
JOHN GALLICK

John Gallick, is the former director of safety and
environmental health for BethEnergy. During the time he worked
for the company he interacted with MSHA personnel regarding the
agency's approval of mine ventilation plans. Gallick was asked
about MSHA's assertion that the criterion of section 75.316-2(h)
had been incorporated into the plan by the statement in the
approval letter that the company was to comply with "all criteria
listed under (s]ection 75.316." He stated that BethEnergy's
position was if MSHA wanted something in a ventilation plan the
item should have been specifically stated. In his opinion,
incorporation by reference was unwise from both a safety and
legal viewpoint. Tr. 204-205.
PARTIES' ARGQMENTS

According to the Secretary, the essence of the alleged
violation is that BethEnergy violated its ventilation plan by
having in excess of 2.0 percent of methane inby the mixing point
where the bleeder entry air current entered a return air split.
There were two ways in which the 2.0 percent limit was incl~ded
in BethEnergy's plan for the mine. First, BethEnergy's plan
specifically stated that bleeder entries were to be examined or

280

evaluated at least weekly to determine, inter alia, whether the
bleeders were functioning per section 75.316-2{e) {l).
The specific reference to section 75.316-2{e) (1) meant that
section 75.316-2{e) was incorporated into the plan as well.
Section 75.316-2(e) stated, in part, that bleeder entries or
bleeder systems should conform with the requirements of section
75.316-2 and section 75.316-2{h) provided that the methane
content of the air current in a bleeder split at the point
where it entered any other air split should not exceed
2.0 percent. Sec. Br. 17-18. Because, "BethEnergy's ventilation
plan in the section on bleeders specifically incorporate[d]
[section) 75.316-2{e) (1)" and "[t]hat section provide[d] ••• all
bleeders must meet the requirements of (section] 75.316-2 ••• the
2[.0]% limit [wa]s incorporated in (BethEnergy's ] plan." Id. 18.
Second, the plan approval letter from MSHA to BethEnergy
specifically stated that the company must comply with the
criteria contained in section 75.316-2. Id.
Acknowledging
that Commission Administrative Law Judge Avram Weisberger had
ruled in BethEnergy Mines, Inc., 12 FMSHRC 975 (May 199 0 ),
review vacated; 12 FMSHRC 1751 {September 1990), that the
criteria of section 75.316-2 could not be incorporated through a
plan approval letter, the Secretary nonetheless argues Judge
Weisberger's decision does not operate as res judicata. Judge
Weisberger did not rule whether the incorporation of section
75.316-2(e) (1) under the bleeder section of a plan could make
applicable the 2.0 percent limit of section 75.316-2{h), and in
any event, under UMWA v. Dole, 870 F.2d 662 {D.C.Cir. 1989),
incorporation of regulatory criteria in ventilation plans is
permissible. Id. 26.
With regard to the location of the methane tests, the
Secretary asserts that Davis located a point where the bleeder
air would not be affected by the air from the main return and
correctly tested for methane there. Sec. Br. 19.
According to BethEnergy, the principal question at issue is
whether the Secretary has properly imposed, through the plan
approval letter, a limit on the amount of methane at a bleeder
evaluation point. This was precisely the issue Judge .Weisberger
decided in BethEnergy Mines, and the Secretary, who did not seek
review of this portion of Judge Weisberger's decision, should be
barred from attempting to relitigate it. BethEnergy Br. 19-21.
If the secretary is not so barred, his attempt to
incorporate the criterion of section 75.316-2(h) through stating
in the plan approval letter that "all criteria listed under
section 75.316 shall be complied with" is the type of all
inclusive, across-the-board imposition of requirements rejected
by the Commission in Carbon County Coal Company, 7 FMSHRC 1367
(September 1985). At most, the Secretary established that MSHA

281

sought unilaterally to impose all of the criteria in section
75.316-2 without regard to mine specific conditions -an improper basis upon which to allege a violation of
section 75.316. BethEnergy Br. 22-26.
Moreover, there was no such specific language in the plan
limiting the methane content to 2.0 percent or below. The only
language addressing bleeders and evaluation points require that
BethEnergy determine the bleeders were "free from explosive
mixtures of methane," i.e., 5.0 percent to 15 percent.
Attentively, if the criterion of section 75.316-2(h) ·was
properly included by reference in the ventilation plan, the
Secretary still did not prove a violation. Davis took the
methane reading 17 feet from the mixing point rather than at that
point, as required. BethEnergy Br. 26.
'l'BE VIOLATION

To sort through the arguments regarding whether the
Secretary has proven a violation, it is helpful to review the
basic principles underlying section 75.316. They have been
repeatedly explained by the Commission, most recently in Peabody
Coal Company, 15 FMSHRC 381 (March 1993). There the Commission,
citing decisional law beginning with Zeigler Coal Co. v. Kleppe,
4 IBMA 30, aff'd 536 F. 2d 398 (D.C.Cir. 1976), reiterated that
once a plan has been adopted and approved its provisions are
enforceable as mandatory safety standards. The Commission
emphasized, however, the individual nature of a plan and the
limits on MSHA's authority to impose general rules applicable to
all mines through the plan approval process. 15 FMSHRC at 385386. After summarizing the law with respect to the process, the
Commission stated:
[M]ine ventilation ..• provisions must
address the specific conditions of a
particular mine. such conditions, however,
need not be unique to the mine. Indeed, a
general plan provisions addressing conditions
that exist at a number of mines may be
permissible providing those conditions are
present at the mine in question.
Peabody Coal Company, 15 FMSHRC at 386.
Keeping these principles in mind, I must determine
whether the Secretary has established that · the criterion of
section 75.316-2(h) -- that the methane content of air in
the bleeder split should not exceed 2.0 percent -- applied to

282

Mine No. 33.
following:

I conclude that he has not, for the reasons

First, I reject the Secretary's suggestion that section
75.316-2(h) was made applicable through the requirement in the
plan that bleeders be examined or evaluated weekly to determine
whether they "are functioning per 75.316-2(e){l)." P . Exh. 7
at 4. The specific reference in the plan was to subsection {l)
of · section 75.316-2(e) and subsection (1) described how bleeders
are supposed to function -- that is, how they are "to
continuously move air-methane mixtures from the gob, away from
active workings and deliver such mixtures to the mine return
aircourses." If the plan was meant to impose a requirement that
there be compliance with all of the criteria of section 75.316-2,
it would have so stated; or it would have stated that there be
compliance with section 75.316-2(e). It would have not couched
the compliance requirement in terms of bleeder "function," that
is, in terms of section 75-316-2(e) {1).
Second, I reject the Secretary's suggestion that the
requirement of section 75.316-2{h) was made applicable through
the statement in the approval letter that "[A]ll criteria listed
under section 7·5 . 316 . . . shall be complied with." I am persuaded
the Secretary's attempt to impose the requirement through the
blanket statement in the approval letter was in this instance
unavailing. While the result I reach is consistent with that
reached by Judge Weisberger in BethEnergy Mines , 12 FMSHRC at
975, it is not based upon the preclusive nature of his decision,
but rather upon the conclusion the Secretary has not established
section 75.316-2{h) was made applicable on a mine specific basis.
BethEnergy's res judicata argument is not well taken. The
nature of the ventilation plan approval and adoption process is
such that I would be unwilling to hold MSHA forever barred at
Mine No. 33 from establishing the applicability of a particular
criterion, based on a 1990 ALJ decision involving an approval
lette~ written in 1989.
The process calls for flexibility and
requires both the operator and MSHA to adjust to the changing
ventilation dynamics of the ongoing mining situation.
Conceivably, circumstances could arise in which MSHA would insist
upon a criterion applying to the mine and MSHA would be able to
establish that the criterion was specifically suited to the mine
for the courts and the Commission have emphasized that if the
Secretary insists upon a particular provision in a plan, his
insistence must be based upon consideration of the particular
conditions of the mine involved.
Here, however, he has not done so. Hadden was specific in
describing MSHA's policy in District 2 regarding the criteria in
section 75.316-2. "In our approval letters that go out with the
plans, it's stated that all of the criteria under 75.316 shall be
complied with." Tr. 157. He acknowledged the statement was

283

included in plan approval letters as a matter of district-wide
policy in 1989, 1990 and 1991. He believed the policy only
changed in 1993. Further, Hadden had no knowledge of any
discussions between BethEnergy and MSHA regarding the 2.0 percent
limit. He knew only that MSHA never would have approved a plan
that indicated the company was not going to comply with such a
limit. Tr. 160.
Missing from Hadden's testimony, as from Davis', was any
consideration given by MSHA as to why Mine No. 33 required such a
limit at bleeder evaluation points when the plan was approved in
April 1991, or when it was reviewed and approved again in October
of that year. There was testimony by Gal-lick that the
applicability of the 2.0 percent limit to the mine was the
subject of discussion between MSHA and BethEnergy in the spring
of 1992, but there was nothing to show that such discussions had
any effect upon the plan as approved or that they resulted in a
revision of the plan. Tr. 206-211.
Thus, the Secretary did not establish that the provision he
sought to enforce was included in the adopted and approved
ventilation plari, because of characteristics individual to Mine
No. 33 or because of characteristics shared by many mines in the
district, including Mine No. 33. Compare Peabody Coal Co.,
15 FMSHRC at 387. Rather, the record suggests rote inclusion by
MSHA of the pertinent catch-all sentence in all plan approval
letters. Judge Weisberger cautioned MSHA about relying upon such
a practice, yet from all that appears on the face of this record,
the agency persisted.
As a result, I conclude a requirement that the methane
content of air was limited to 2.0 percent or less at EP-62 was
not included in the approved and adopted ventilation plan for
Mine No. 33, and I hold the Secretary has failed to establish a
violation of section 75.316.
DOCKET NO. PENN 92-514-R
DOCKET NO. PENN 92-652

Citation No.
3705229

Date
4/22 / 92

30 C.F.R. S
75.316

Proposed Penalty
$229

citation No. 3705229 states in part:
The air current flow exiting .from the
approved bleeder evaluation point {Co. No.
57) off the abandoned L.W. gob area between 6
right and 7 right off D-East Mains could not
be fully evaluated at this time. This marked
bleeder evaluation point as indicated by a

284

barricade device (wire mesh screen), date
board, and chalk markings, was being directly
influenced by a return air current flowing
across the face of the wire mesh screen
barricade. The air current direction of this
return air current was indicated by smoketube
clouds at this time.
P. Exh. 11.

On May 8, 1992, the citation was modified to state:

"The air current flow exiting from the
approved bleeder evaluation point (Co. No.
57) contained methane readings of 2.5%
thereby exceeding the maximum allowable level
of 2.0%. This bleeder evaluation point is
approved for evaluation of the abandoned L.W.
gob area between 6 right and 7 right of
D.East Mains." Id. at 2.
RELEVANT TESTIMONJ
THE SECRETARY'S WITNESSES
NEVIN DAVIS
Davis testified that on April 22, 1992, during the course of
an inspection at the mine, he traveled to a bleeder evaluation
point, EP-57, where he evaluated the direction of the air
current. Davis found that the air from the main return was
flowed directly across a fenced area of EP-57. At the fence the
air from the main return was mixed with air coming off the gob
and through the evaluation point. Because BethEnergy employees
could not proceed inby the fence and into an area where air off
the gob was not mixed, Davis believed there was no way they could
evaluate properly the return air coming off the gob at the
evaluation point. Tr. 248. The return air blowing across the
bleeder entry made evaluation of the bleeder air at the
evaluation point impossible. In Davis' opinion, this constituted
a violation of one of the criteria found at section 75.316-2,
which, as with the previous citation, was incorporate~ by
reference into the approved and adopted mine ventilation plan.
Tr • . 260-264.
Upon further examining the screen Davis noted a bent area
and he was able to reach over and inby the bent area and to
conduct a valid test of unmixed air which showed methane in
excess of 2.0 percent. Tr. 248. (Bottle samples taken to
substantiate the readings Davis obtained with his methane
detector produced results of 2.1 percent and 2.16 percent
methane. Tr. 259.)

285

Davis initially issued two separate citations.
Subsequently, at the insistence of the district manager, Davis
combined both allegations into Citation No. 3705229. Tr. 249.
Thus, as ultimately modified, citation No. 3705229, alleged two
violations -of section 75.316: (1) methane in excess of 2.0
percent at EP-57 and (2) inability to evaluate air coming off the
gob at EP-57 due to the screen. See Sec. Br. 23.
BETBENERGY'S WITNESSES
GEORGE MOYER
Moyer, the mine foreman for the B seam for the last .two to
three years, stated he was familiar with the citation and the
facts surrounding it. He also stated that the screen was erected
to prevent miners from entering the bleeder and the unsupported,
unsafe gob area adjacent thereto. Tr. 267-268. Moyer believed
that the bleeder was functioning properly and that the qob was
being adequately ventilated. In his opinion, there was no
violation. Tr. 271-272.
JOHN GALLICJ{

Gallick believed the effectiveness of gob ventilation could
have been evaluated even if air readings were taken in the mixing
point because the air readings would have revealed whether the
bleeder system was moving air from the gob. The amount of
methane detected, whether 2.0 percent or some other number, was
not critical from an overall ventilation standpoint. What was
critical was whether the bleeder system was working as it should.
Tr. 288-289, 291-292.
PARTIES' ARGUMENTS
Regarding the purported violative presence of over
2.0 percent methane the Secretary restates arguments made
concerning the previous alleged violation. With respect to the
alleged inability to determine the methane content of air coming
off of the gob, the Secretary argues that having to take readings
of mixed air vitiated the plan's requirement. Sec. Br. · 24.
BethEnergy responds to the first part of the alleged
violation by referencing the arguments it made with respect to
Citation No. 3705227, to the effect that the presence of methane
in excess of 2.0 percent at the evaluation point was not a
violation of its ventilation plan.
With respect to the second part of the alleged violation,
since the approved plan required the bleeder entries be evaluated
to determine "whether bleeder entries are functioning per section
75.316-2(e) (l)" (P. Exh. 7 at 4 emphasis added) and since this
meant that they were to be evaluated in order to determine

286

whether they were moving air-methane mixtures away from the gob
and in a controlled fashion were preventing methane inundation of
the returns, the Secretary failed to establish the. alleged
violation because a determination was made that air was moving in
the proper direction out of the bleeders. BethEnergy Br. 35.
THE VIOLATION
To the extent, Citation No. 3705229 alleges a violation of
the adopted and approved ventilation plan for Mine No. 33 because
the methane content of air exiting from EP-57 exceeded 2.0
percent, I hold, for reasons previously stated with respect to
Citation No. 3705227, that a violation of the plan has not been
established. To the extent, Citation No. 3705229 alleges a
violation of the adopted and approved ventilation plan because
the screen at EP-57 prevented an evaluation of the methane
content of the air at that evaluation point, I also conclude that
a violation of the plan has not been est~blished.
The plan stated that "bleeder entries .•• are to be
examined and date marked, so far as safe, or evaluated at
least weekly to determine whether they are free from explosive
mixtures of methane ••• and whether they are functioning per
(section] 75.316-2(e) (1). 11 P. Exh. 7 at 4. As I have previously
noted, in describing how bleeder entries are to function, section
75.316-2(e) (1). required in part that bleeder entries be designed
so as to continuously move air-methane mixtures from the gob,
away from active workings and deliver such mixtures to the mine
return aircourses. I therefore interpret the plan to mean that
when a bleeder evaluation point was approved by the district
manager, the operator was required to evaluate the bleeder at the
evaluation point to determine whether the air at the point was
free from explosive mixtures of methane and whether the bleeder
was moving methane mixtures from the gob and to the return air
courses. In other words, whether the bleeder was "functioning
per (section] 75.316-2(e) (1). 11 The question, therefore, is
whether the Secretary has established that on April 22, 1992,
this evaluation could not be made.
I accept as fact that an evaluation of mixed air would not
have yielded an accurate determination of the methane content of
bleeder air. Therefore, to determine whether the bleeder air was
free of explosive mixtures of methane, it made sense to test the
air at the evaluation point before it mixed with air from the
main return. I also find, however, that the screen did not
prevent Davis, and · presumably BethEnergy personnel as well, from
testing for methane before the air mixe~.
I credit Davis' testimony that he was able to reach over and
inby the bent area of the screen and determine the methane
content of the unmixed bleeder air. Tr. 247. I also note his
speculation that the screen was bent because others might have

28 7

reached over at the same spot. Tr. 248. Since it is clear that
the screen did not prevent Davis from determining the methane
content of the bleeder air, and since what Davis did, BethEnergy
personnel also could have done, I conclude that BethEnergy was in
compliance with that portion of its plan requiring it to be able
to determine whether air exiting at the evaluation point was free
from explosive mixtures of methane.
Davis also testified that by reaching over the screen he was
able to determine the air current direction with a smoke cloud.
Tr. 245-246. From this I conclude that on April 22, BethEnergy
personnel also were able to determine whether the bleeder was
moving methane mixtures from the gob to the return in compliance
with the approved plan. I especially note the following colloquy
between BethEnergy's counsel and Davis:
Q. And on April 22, was there air moving out
of this bleeder connector into the return?

A. Yes, if you went inby the fenced area.
Q. [W)hen you brought the smoke tube to test
and you ·saw that the air evaluation point was
influenced by the return, that air
nonetheless moved out into the return, did it
not, when you tested it with the smoke tube?

A. Yes. When it mixed, yes.
Q. And did you bring a smoke tube at the wire
mesh to see what the air was doing there?

A. Yes, I [brought] it inby.
Q. And it was moving out toward the return;
was it not?

A. Uh-huh (yes).
Q. so the bleeder was functioning properly,

as far as you could determine?
A. Yes, as far as I could determine.
Tr. 256-257. Because the plan did not limit the methane content
of the air at the evaluation point to no more than 2.0 percent
and because the Secretary failed to prove that on April 22,
BethEnergy was unable to determine whether at EP-57 the bleeder
entr[y] "[was) free from explosive mixtures of methane ••• and
whether (it was] functioning per (section] 75.316-2) (e) (1)"
I hold the Secretary has not established a violation of
section 75.316.

288

ORDER
DOCKET NO. PENN 92-511-R

The Secretary, having agreed to vacate Citation No. 3705954,
is ORDERED to do so. BethEnergy's motion to withdraw its contest
of the citation is GRANTED. This proceeding is DISMISSED.
DOCKET NO. PENN 92-512-R

Citation No. 3705227, is VACATED. BethEnergy's contest of
the citation is GRANTED . This proceeding is DISMISSED.
DOCKET NO. PENN 92-514-R

Citation No . 3705229, is VACATED. BethEnergy•s contest of
the citation is GRANTED. This proceeding is DISMISSED.
DOCKET NO. PENN 92-515-R

The parties having stipulated that the outcome of
BethEnergy's contest of Citation No. 3705229 will determine the
outcome of BethEnergy's contest of Citation No. 3705230 and
citation No. 3705229 having been vacated, Citation No. 3705230 is
VACATED. BethEnergy's contest of the citation is GRANTED. This
proceeding is DISMISSED.
DOCKET NO. PENN 92-516-R

The Secretary having stated Citation No. 3705231 has be~n
VACATED, BethEnergy's motion to withdraw its contest of the
citation is GRANTED. This proceeding is DISMISSED.
DOCKET NO. PENN 92-595

The parties having stipulated that the outcome of
BethEnergy's contest of Citation No . 3705227 will determine the
outcome of the Secretary's penalty proposal for the violation
alleged in Citation No. 3705986 and Citation No. 3705227 having
been vacated, Citation No. 3705986 also is VACATED. Gitation
No. 3705944 having been found not to allege properly a violation
of section 75.309{a) likewise is VACATED. This proceeding is
DISMISSED.
DOCKET NO. PENN 92-643

The Secretary having agreed to vacate Citation No. 3705954
and the citation being the only one at issue in this case, the
Secretary's motion to withdraw its proposal for assessment of
civil penalty is GRANTED. This proceeding is DISMISSED.

2 89

DOCKET NO. PINN 92-652

Citation No . 3705227 and Citation No. 3705229 having
been vacated, this proceeding is DISMISSED.

David F. Barbour
Administrative Law Judge
Distribution:
John Strawn, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, 600 Grant street, 57th
Floor, USX Tower, Pittsburgh, PA 15219 (Certified Mail)
Steven c. Smith, " Esq., Buchanan Ingersoll, 600 Grant street, 57th
Floor, USX Tower, Pittsburgh, PA 15219 (Certified Mail)
Robert H. Stropp, Esq., UMWA, 900 15th Street, NW, Washington, DC
20005 (Certified Mail)
/epy

290

PEDER.AL MINE SUETY AJfD HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5267/FAX (303) 844-5268

FEB

4 1994

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 92-519-M
A.C . No . 48-00154-05549

v.

Big Island Mine and
Refinery

RHONE-POULENC OF WYOMING CO.,
Respondent
DECISION APTER REMAHD
Before:

Judqe Morris

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" or "Act"), on October 13, 1993, the Commission remanded the case for further proceedings, consistent with its
decision.
Pending herein is the Secretary's motion for summary decision . filed pursuant to Commission Rule 67, 29 C; F.R. § 2700.67.
In support of the motion, the Secretary relies on the stipulation of the parties filed December 27, 1993, the subject citation incorporated by reference and on the grounds set forth
herein.
Respondent did not reply to Secretary's motion for summary
decision.
The motion for summary decision states:
1.
There is no issue as to jurisdiction in this matter as
set forth in the Stipulation. Rhone-Poulence of Wyoming Company
("Rhone-Poulenc") is engaged in the mining . and selling of trona
in the United States, and its mining operations affect interstate
commerce.
(Stip. 1). In additi on, Rhone-Poulenc is the owner
and operator of the Big Island Mine and Refinery, MSHA I.D. No.
48-00154 .
(Stip. 2) . As a mine operator, Rhone-Poulence is subject to the jurisdiction of the Federal Mine Safety and Health

291

Act of 1977, 30 u.s.c. § 801 et seq . ("the Act"), and the Administrative Law Judge has jurisdiction in this matter.
(Stip. 3,
4). Finally, the subject citation was p+operly served by a duly
authorized representative of the Secretary upon an agent of Respondent on the date and place stated therein.
(Stip. 5).
2.
This case arises out of the Respondent's contest of
citation No. 3634635 issued on October 2, 1991, by MSHA Inspector
Gerry Ferrin. The subject citation alleged that an electrical
foreman Willie Bramwell, employed by the Respondent, received an
electrical shock-type injury while performing mechanical work
inside an electrical control compartment at the Big Island Mine
and Refinery. The electrical foreman failed to lock out or take
other effective means to prevent the likelihood of being shocked
while performing the mechanical work on the compartment.
(Citation No. 3634635). As such, the company's actions through its
electrical foreman were alleged to be in violation of 30 C. F.R.
§ 57 .12016.
(Stip. 7).
3.
The condition cited in Citation No. 3634635 was determined by the ~ nspector to be a significant and substantial
violation of the 'Act as the failure to comply with 30 C. F.R.
§ 57.12016 was deemed to have contributed to a reasonably serious
injury that resulted in lost workdays for the affected electrical
foreman.
(Stip. 8). Thus, given the reasonably serious injury
that occurred, the violation was a significant and substantial
violation as set forth in Section 104(d) of the Act.
4.
MSHA determined that the operator's negligence was high
as to the occurrence of this violation. Bramwell was an experienced and well-trained electrical foreman, and as a supervisor,
was an agent of· the operator as defined in Section 3(e) of the
Act. MSHA determined that Bramwell knew or should have known
that he violated the Act when he failed to lock out or take other
effective means to. prevent the likelihood of being shocked while
performing the mechanical work on the compartment at the mine.
(Stip. 9}.
5.
Moreover, MSHA determined that the operator's conduct
was aggravated and therefore, constituted an unwarrantable failure as set forth in Section 104(d} (1) of the Act. MSHA based its
determination of unwarrantability on the following factors:
l} the electrical foreman was a superviso~ of other employees;
2) the electrical foreman was an agent of the operator; and
3} the electrical foreman was knowledgeable about MSHA regulations. (Stip 10).
6.
MSHA agreed to stipulate to a proposed penalty of $800
for Citation No. 3634635. (Stip. 11). The proposed penalty will
not affect Respondent's ability to continue in business and takes
into account the relevant penalty criteria pursuant to 30 C.F.R.
Part 100. (Stip. 12). As such, the operator demonstrated good

292

faith in quickly abating the violation. (Stip. 13). In addition, Rhone-Poulenc is a large mine operator with 1,176,624 hours
worked at the controlling company and 994,463 hours worked at the
mine.
(Stip 14). In the 24 months prior to the inspection,
Respondent was inspected a total of 278 days and received 73 assessed violations only 3 of which were significant and substantial and none of which were unwarrantable failures.
(Stip. 15).
The negligence criteria are discussed above in paragraph 4.
7.
For purposes of a summary decision, the "adverse party
may not rest upon the mere allegations or denials of his pleadings . . . . If the party does not respond, summary decision, if
appropriate, shall be entered against him." 29 C.F.~. § 2700.67.
In the instant matter, Respondent stipulated that it will not
challenge the facts as set forth in the attached stipulation.
(Stip. 16). As such, given the lack of challenge by the operator, the attached stipulation and the citation establish without
a genuine issue of fact, the elements of the violation, the significant and substantial nature of the violation, unwarrantability, and the penalty criteria. Thus, it is appropriate for this
case to be de.,c ided by summary decision.
\

8.
The ·procedural history of this · case is as follows: on
December 28, 1992, Administrative Law Judge John J. Morri s issued
an Order of Dismissal denying Respondent's Motion to Dismiss
under Section 105(a) of the Act, denying the Secretary's motion
to accept late filing of Proposal for Penalty, and granting
Respondent's Motion to Dismiss on the issue of timeliness of the
Proposal for Penalty. on October 13, 1993, the Federal Mine
Safety Review Commission (hereinafter the "Commission") issued
its Decision vacating the Judge's order dismissing this proceeding and remanding the case to the judge for further proceedings.
(Stip . 17).
9.
With relation· to the Commission's decision of October
13, 1993, the parties expressly reserve the right to appeal the
issues raised and decided in the decision, once the remaining
merits of the case have been resolved by the issuance of a decision and order by the Administrative Law Judge . A final decision
and order on the merits is needed prior to any further appeals on
the issue of the timeliness of the Proposal for Penalty .
(Stip. 18).
.
10. The parties have agreed that the Secretary shall not
attempt to collect the penalty ordered herein until Respondent's
appeal is finally resolved, provided that Respondent timely commences and prosecutes said appeal.
In summary, the Secretary moved, unchallenged by Respondent,
for a summary decision in this matter pursuant to 29 C.F.R.
S 2700.67. Such a decision would resolve all pending issues on
the merits of the citation and the penalty and would preserve the

293

right ·of. any fu~ther appeals on the procedural issue of timeliness of the Proposal for Penalty.
Based on the stipulation of the parties, I enter the
following:
ORDER

1.

The Secretary's motion for summary decision is GRANTED.

2.

Citation No. 3634635 is AFFIRMED.

3.

A civil penalty of $800 is ASSESSED.

Law Judge

Distribution:
Susan J. Eckert, Esq., Office of the Solicitor, u.s. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, Colorado 80294 (Certified Mail)
Daniel A. Jensen, Esq., KIMBALL, PARR, WADDOUPS, BROWN & GEE,
P.O. Box 11019, Salt Lake City, UT 84147 ·(Certified Mail)
ek

294

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

FEB 41994
CONTEST PROCEEDINGS

WESTERN FUELS-UTAH, INC.,
Contestant

Docket No. WEST 94-95-R
citation No. 3850092; 10/19/93

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

Docket No. WEST 94-96-R
Citation No. 3850087; 10/05/93
Deserado Mine
Mine I.D. 05-03505

:

DECISION
Appearances:

Karl F. Anuta, Esq., Boulder, Colorado,
for Contestant;
Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Respondent.

Before:

Judge Morris

These contest proceedings arose under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801, et seg. {the
"Act") •
Contestant, Western Fuels Utah {"Western Fuels") requested
an expedited hearing, which was held in Glenwood Springs, Colorado, on November 30, 1993.
Contestant filed briefs in support of its position and the
Secretary submitted her views in oral argument.
In these cases Western Fuels requests that the Commission
vacate citation Nos. 3850087 and 3850092.
citation No. 3850087, issued under Section 104(a) of the
Act, alleges Western Fuels violated 30 C~F.R. § 75.516-2{c).
The citation reads as folLows:
295

Additional insulation was not provided for the conununication wire (cable) where i t passed under a 480.
V.A.C. power conductor for the belt take-up winch of
the 9th East belt drive between No. 1 and No. 2
crosscuts. The phone cable was hung approximately
3 inches under the power cable for the winch.

citation No. 3850092, issued under Section 104(a), alleges
the operator violated the same regulation.
The citation reads as follows:
Additional insulation was not provided for the mine
phone cable where it was hung with the 480 V.A.C.
power cable for the East Main No. 1 belt drive motor.
The phone cable did not contact the power cable;
however, both were supported by the same messinger
wire.

The regulation relating to power wires (30 C.F.R. § 75.516)
provides as follows:
S 75.516

Power wires; support.

All power wires (except trailing cables on mobile
equipment, specially designed cables conducting highvoltage power to underground rectifying equipment or
transformers, or bare or insulated ground and return
wires shall be supported on well-insulated insulators
and shall not contact combustible material, roof, or
ribs.
S 75.516-1

Installed insulators.

Well-insulated insulators is interpreted to mean
well-installed insulators. Insulated J-hooks may be
used to suspend insulated power cables for temporary
installation not exceeding 6 months and for permanent
installation of control cables such as may be used
along belt conveyors.

s 75.516-2 Communication wires and in cables;
installation; insulation; support.
(a)
All communicati.o n wires · shall be supported on
insulated hangers or insulated J-hooks.
(b) All communication cables shall be insulated as
required by S 75.517-1, and shall either be supported
on insulated or uninsulated hangers or J-hooks, or
securely attached to messenger wires, or buried, or
otherwise protected against mechanical damage in a
manner approved by the Secretary or his authorized
representative.
(c) All communication wires and cables installed in
track entries shall, except when a communication cable
is buried in accordance with paragraph (b) of this
section, be installed on the side of the entry opposite to trolley wires and trolley feeder wires. Additional insulation shall be provided for communication

296

circuits at points where they pass over or under any
power conductor.
(d) For purposes of this section, communication
cable means two or more insulated conductors covered
by an additional abrasion-resistant covering.

§

The Secretary relies solely on the underlined portion of
75.516-2{c).
STIPULATION

The parties stipulated:
1.
That Contestant's Deserado Mine is an underground coal
mine in Rio Blanco County, Colorado;
2.
The operator is subject to the jurisdiction of the Act
a nd the Commission; and
3.
The citations were issued and duly served on
Contestant.
THE EVIDENCE

The evidence is essentially uncontroverted.
Art Gore and James E. Kirk testified for the Secretary.
Robert Daniels and Anthony Lauriska testified for Western Fuels.
Both contested citations allege a violation of 30 C.F.R.
75.516(2) (c).
{Tr. 9). The areas cited involve a communication cable (phone cable} and a power conductor cable. There are
no trolley wires in the area.
(Tr . 9).
§

The Deserado Mine, a gassy mine, was inspected by Mr. Gore
in October 1993. The mine was an underground coal mine with a
longwall .mining system.
(Tr. 18).
Both of the citations involve a voice communication circuit,
namely, a telephone.
(Tr. 19). The communication cable is the
wiring that connects the telephones. There could be literally
miles of cable in the mine connecting the telephones.
{Tr. 19,
20) •

The telephone cable was insulated. The cable loops lineinsulated conductors with another wrapping of insulation. This
makes it a cable instead of a wire.

297

Usual ly, there are two conductors for the telephone system
and one for the ground. The wires are wrapped within one cable.
(Tr. 20) .
The insulated communication cable normally carries about 600
volts . The cable serves the telephone system only.
(Tr. 20,
21} .
The telephone box in itself is a permissible unit when connected to a permissible telephone system. It becomes a part of
it .
(Tr . 21 } .
In the two cited areas, a 350-MCM power cable provided
voltage to the belt motor which powered the conveyor belt. The
power cable was a large 480-volt three-phase cable, which was
insulated .
(Tr. 23) .
The power cable was not intrinsically safe .

( Tr . 2 3 , 2 4 ) .

Citation No. 3850087 was issued because the telephone cable
was hung three inches beneath and crossed a power cable .
In
Mr. Gore's opinion, the regulation requires additional insulation
where the cables cross . This is because the last sentence of
§ 75.516(2) (c) stands alone.
(Tr. 25). Also Part 18.68(d) and
.68(c) state that intrinsically safe systems cannot be mingled
with power conductors .
At the crossover there was a three-inch space between the
two cables . . (Tr. 25, 26) . This air gap is additional insulation
but this could change if the gap closed.
(Tr. 32, 33).
Additional insulation is required regardless of the i n sulation provided . The " additional insulation" must be in addition
to the insulation already present.
(Tr . 26, 29).
The telephone cable could be rendered unsafe by physical
contact with a power cable or by induced voltage. If one compo~ent is rendered non-intrinsically safe, all components could be
non-intrinsically safe.
(Tr . 27).
MSHA standards require certain types of insulation on the
cables.
(Tr. 28). At other mines, Mr. Gore has seen a flameresistant rubber hose where the cables intersect. Also, electrician's tape has been used.
(Tr. 29).
In view of the three-inch air gap (Citation No. 3850087),
the hazard potential is very low. However, hangers or cables
break and scaling could occur and there could be contact between
the cables.
(Tr. 30). In addition, a hanger could break in a
crosscut and cause the cables to touch.
(Tr. 31) . This condition has been cited in numerous other mines.
(Tr. 32) . The
operator's cable was in good condition .
(Tr. 34).
298

Citation No. 3850087 was abated by putting electrician's
tape around the telephone cable where they intersected.
(Tr. 34,
35) .
citation No. 3850092 involved a power cable and a communications cable hung on the same messinger wire.
[A messinger wire
is a steel cable strung and tensioned between two anchors.] The
telephone cable was over the power cable for a distance of 10 to
12 feet , but the cables did not cross.
(Tr. 35, 36) . There was
no additional insulation provided where the two cables ran in a
parallel manner.
(Tr. 37).
Mr. Gore has seen hooks fall; cables also become tense.
(Tr. 38). The Deserado Mine was cited for a violation of
§ 7 5 . ? 16 ( 2) ( c) in February 19 9 2 •
(Tr . 3 9 ) •
Mr. Gore agreed that the Communications Circuits involved in
these two citations were voice communication (telephone) circuits
and not CONSPEC circuits involving mine monitoring systems.
{Tr. 43) .
However, a · data communication circuit would be a power
conductor.
(Tr. 43).
A belt control cable is 12 volts and is considered to be a
control cable rather than a power conductor.
(Tr. 44). A power
cable supplies power or current to a device for the purpose of
running i t , not controlling it.
(Tr. 45) .
ROBERT DANIELS, a company representative and an MSHA certified underground electrician, accompanied Inspector Gore. He
terminated Citation 3850087 by applying additional insulation.
(Tr. 83). The insulation went all the way around the cable.
There were no abrasions or breaks in the insulation of the
communications cable.
(Tr. 86, 87). There is no room for mobile
equipment to travel in these four- to five-foot areas. The belt
line goes down the entry.
(Tr. 87).
In the area of Citation No. 3850092 there is fencing around
the drive motors. To reach the cables, you have to go over the
fencing.
(Tr. 88) •
The witness was not aware of any faulty maintenance . The
cables are checked weekly.
(Tr. 87). Further, the witness was
not aware of the failure of any hooks or cables, nor have any
rock falls occurred in the areas where the citations were
written.
(Tr. 89, 90).
There is induced RF voltage for the STOLAR radio system.
The RF flows along the antenna itself .
(Tr. 91).

299

Mr. Daniels agreed that he has always been trained to keep
power and communication cables from touching.
{Tr. 93}.
In
weekly examinations, he has found cables that needed repair.
He has also found fallen J-hooks.
{Tr. 94).
ANTHONY LAURISKI, experienced in mining, is Western Fuels'
maintenance superintendent.
(Tr. 95, 96}.
The witness is familiar with the insulation rating on the
data communication line. The manufacturer's suggested working
voltage is 400 volts.
(Tr. 97}. The line carries 24 volts. The
power cable carries 480 volts phase-to-phase. The insulation on
the power cable is rated at 600/2000 volts. This means it can be
used on a 600-volt system up to 2000 vo lts . If not shielded in
an underground coal mine, voltage above 480 needs a shielded
cable. The communications cable was shielded.
(Tr. 98).
The witness identified three exhibits: R-1 is a specification sheet for a power cable used in the mine. One of the citations involved "~ 350-MCM cable. The voltage rating on the insulation is shown ~s 600/2000 volts.
(Tr. 100).
Exhibit R-2 lists the specific telephone cable used at the
mine. The cable is shielded and the voltage rating is 400; that
means it will carry up to 400 volts, but it carries 24 volts D.C .
at the Deserado Mine.
(Tr. 101).
Exhibit 3 is a 3-M data sheet on vinyl electrical tape. It
is one of the electrical tapes used at the mine.
(Tr. 101, 102}.
Mr. Lauriska supervises electricians and mechanics at the
mine.
The National Electric Code considers this to be a Class 2
circuit. At any place where a class 2 circuit crosses a power or
a lighting circuit, a two-inch minimum separation between insulated conductors is recommended.
{Tr. 103, 104).
Te·lephone lines were installed right after the mining was
completed.
(Tr. 104). The belts are also inspected every day by
belt inspectors. Electrical inspections are done once a week .
. Power cables and telephone lines are inspected and repaired (or
reported for repair} if a break is found.
(Tr. 104, 105) . Generally, a special c6balt jacketing material is used.
(Tr. l05i.
There are no bare electrical wires or telephone· wires in the
Deserado Mine.
(Tr. 104, 105). There are no trolley wires in
the Deserado Mine.
(Tr. 105}.
In the Kaiser Mine in Sunnyside, Utah, a rubber conduit
material is placed where communication wires cross the trolley

300

line wires.
feet apart.

(Tr. 106). The lines were six inche.s to a couple of
(Tr . 1o6 , 1o7 ) .

The signal wires carried 24 to 30 volts, about the same as
the Deserado Mine.
(Tr. 107). If a telephone wire fell against
a power wire in the Kaiser Mine, it would probably cause an arc.
(Tr. 107). If the 480-volt power line comes in contact with the
telephone line at the place where the two citations were written,
nothing would happen.
(Tr. 110). Mr. Lauriska explained what
might occur if bare conductors were touching.
(Tr. 110-112).
Mr. Lauriska is familiar with the data line that operates
the CONSPEC System. The line, a four conductor, sends two D.C.
power signals and there are two D.C. power sources. It also has
two data communication lines. The line carries 12 volts and the
digital communication carries three volts.
(Tr. 113). The line
is used to connect the computer to sensors at various places
throughout the mine.
It monitors all the belt drives underground and all the gas monitoring, including carbon dioxide and
methane.
There are about 13 belt drives underground. Each has 15 to
22 monitoring points. There are about 52 carbon dioxide and
methane monitors underground.
(Tr. 113). There are easily over
100 monitoring points. The witness was sure the data line
crossed over or under the power line.
(Tr. 114).
The Inspector and Mr. Lauriska disagree over whether cables
should be run together.
(Tr. 117).
Mr. Lauriska believes the cables are rated for protection.
As a result, their rating protects the cable from whatever comes
in contact with it.
(Tr. 118).
Mr. Lauriska has never received from MSHA a definition of
what constitutes "additional insulation." (Tr. 118). At a point
where the cables were touching, some insulation was needed. An
air gap could be the additional insulation.
(Tr. 119).
There is a potential for the two cables to come in contact.
A hazard would exist if both wires were bare and there was a potential for the current to flow back to the transformer ground.
(Tr. 120). In the case of a power cable, several safeguards
would be the circuit breakers and the ground fault interrupter.
These safety devices come into play when necessary.
Mr. Lauriska considered air but not a piece of conduit to be
additional insulation.
(Tr. 121). It is Mr. Lauriska's opinion
that the power cable and the telephone cable can touch.
(Tr.
122). Mr. Lauriska agrees that power cables and intrinsically
safe circuits should not touch.
(Tr. 123).

301

The law requires the high voltage and low voltage to be separated. The communication cable is shielded to keep other induction like noise from interfering with the cable.
(Tr. 127).
A data line is a hybrid, since it is both a power cable and
a digital communication cable.
(Tr. 127).
JAMES E. KIRK, an MSHA inspector as well as an electrical
specialist, is qualified in all vo ltages for surface and underground.
(Tr. 131-133). He has cited § 75.516 (2) (c) numerous
times. Mr. Kirk has always considered the second part of the
regulation separate from the first portion dealing with communication cables and trolley wires.
(Tr. 133). Basically, MSHA
contends that communication cables should be kept separate from
other power circuits.
(Tr. 134). The regulation prohibits
communication cables from passing over or under power cables.
(Tr. 135). Operators sometime use conduit called CANOFLEX or
electrical tape. Air is also considered an insulator but cables
and h ooks could fall or tighten up.
(Tr. 136, 137).
The purpose. of the regulation is to keep the communication
circuit separate from the power cable.
(Tr. 13 8) .
If a low voltage system (12 to 24 volts) intermingles with a
high volt~ge system, it is possible that the high voltage system
can be induced or transmitted to the low voltage.
(Tr. 138).
In connection with this particular regulation, we look at
the condition of both cables, the voltages, the shielding, and
any damage. All of these things would not prevent a citation
from being used but would make any hazard nearly non-existent.
(Tr. 140) .
If an induced or transmitted voltage enters a conµnunication
line it would travel throughout the line.
(Tr. 141). Section
18.62(2) prohibits intermix of intrinsically safe circuits with
power circuits.
(Tr. 143). In a mine environment cables are
damaged all the time. They are still damaged and can blow up.
(Tr. 143) .
Section 57.108(12) is the metal/non-metal regulation dealing
with communication/power cables. The regulation requires the
cables be kept separate.
(Tr. 144).
If a 24-volt power cable came in contact with a high voltage
cable or line that was not a communication line, a chain of
events would occur.
(Tr. 145, 146). A communication line is not
considered to be a power cable since you don't find power cable
voltages on a communication cable.
(Tr. 147). The communication cable in the Deserado Mine is 24 volts.
(Tr. 147, 148).

302

If a power cable came in contact with a communication cable,
the latter could become energized. Under such circumstances, an
intrinsically safe communication cable could be rendered unsafe.
There is no intrinsically safe data cable at this time.
(Tr.
148) .
CONSPECT systems sense carbon dioxide and methane gas. The
sensors themselves are intrinsically safe and they are attached
to the CONSPEC line through a barrier box.
(Tr. 150). Going
through the barrier box is considered to be intrinsically safe
because it goes through a protective barrier.
(Tr. 152).
Today MSHA defines a data line to be a power cable (Tr. 152)
but a communication line is not considered to be a power cable.
(Tr. 152). A 480-volt power line is certainly a power cable.
Low voltage power lines can cross each other without any
additional requirement. High voltage power circuits and low
voltage power circuits must have additional protection where they
cross. See 30 "C.F.R. § 75.80(7).
(Tr. 153).
Low voltage is zero to 600, intermediate is 600 to 999
volts, 999 volts up to 13,700 volts is considered to be high
voltage by MSHA.
(Tr. 153, 154).
A 400-volt line without additional protection could erase a
data line because they are both low voltage lines. Additional
insulation can be a piece of tape wrapped around a cable or a
piece of conduit or anything rated as a dielectric that is flame
resistant or an insulator.
In Mr. Kirk's opinion, whatever the manufacturer provides
is essentially irrelevant when one cable crosses a communication
line. The regulation requires additional protection where the
cables pass over or under.
(Tr. 156).
If the communication line were a bare wire, the operator
would comply with the regulation by putting a piece o~ tape on
the wire.
(Tr. 156-157). However, he would try to discourage
that procedure.
(Tr. 157-158). The regulation requires some
additional insulation to be ~dded regardless of what comes from
the manufacturer.
(Tr. 158).
A communication cable can be a telephone cable. Signal
devices are also communication cables. Data cable is not a
communication cable.
(Tr. 160, 161). Communications are transmitted in a telephone cable through voltage signals. Communications are transmitted in a data cable in the same manner.
(Tr. 162) •

3 03

The citations involved in this case have nothing to do with
the CONSPEC system. MSHA is now attempting to deal with the new
concept of computer or data lines.
(Tr. 168, 169).
In Mr. Kirk's opinion, Section 18.68(c) (3) can stand alone.
(Tr. 169).
Mr. Kirk didn't know if the telephones at the Deserado Mines are permissible telephones.
(Tr. 170).
DISCUSSION AND FURTHER FINDINGS
As threshold issues, Western Fuels assets the "over" and
"under" requirements of § 75.516-2(c) are vague, unclear, and
undefined. Therefore, they are subject to selective and unequal
enforcement.
I disagree. The commission has previously recognized that,
in order to afford adequate notice, a mandatory safety standard
cannot be "so in~omplete, vague, indefinite, or uncertain that
(persons) of conuhon intelligence must necessarily guess at its
meaning and differ as to its application." Ideal Cement Co., 12
FMSHRC 2409, 2416 (November 1990); cvprus Tonopah Mining Corporation, 15 FMSHRC 367, 375 (March 1993).
The term "over" is defined in Webster's as "used as a function word to indicate motion or situation higher than or above
another." 1 "Under" is defined as "in or into a position below
or beneath something. 11 2
Western Fuels further asserts that the above underlined portion of § 75.516-2(c) cannot "stand alone" as an MSHA requirement. In particular, Western Fuels argues the "additional insulation" requirement is limited to wires and cables installed in
track entries as provided in the first sentence of§ 75.516-2(c).
I disagree. The plain text does not support this view.
Local Union 1261, District 22, United Mine Workers of America v.
FMSHBC, 917 F.2d 42.45 (D.C. Cir.) is not inopposite to the view
expressed here. Local union 1261 involved the same nexus, i.e.,
the construction of Section 111 of the Mine Act. In the instant
case, no such nexus exists. In fact, there are few if any "Track
entries" in coal mines in the Western United States.

Webster's New Collegiate Dictionary (1979) at 810.
2

Webster's New Collegiate Dictionary (1979) at 1265.

304

The pivotal issue is whether the Secretary may impose "additional insulation" where a conllnunication cable passes "over/
under " a power cable . This requirement is sought to be imposed
although it is uncontroverted that the MSHA-approved cables were
in good condition and without breaks or abrasions .
In enforcing this regulation requiring "additional insulation, " an inspector merely has to visually determine whether
extra insulation has been added where power cables and communication cables meet. However, in considering a parallel regulation (30 C.F .R. § 57.12-82], the Commission found such enforcement to be inadequate.
In Homestake Mining Company, 4 FMSHRC 146 (February 1982) '·
the Commission stated, in part, that
.•. the interpretive memorandum imposes a blanket requirement that additional insulation be placed between
power cables and metal pipelines, regardless of the
cable's existing insulation, dielectric strength, the
conditions under which the cable is to be used, or the
composition or design of the cable and its insulation.
We recognize that enforcement of the standard would be
simpler if an inspector merely has to visually determine whether extra insulation has been added where
power cables and pipelines meet. We fail to see, however, how this superficial examination bears any relationship to the purpose of the standard. Rather, in
order to make a bona fide determination that insulation adequate to prevent the transmission of current
to adjacent pipelines is present, the adequacy of the
added insulation must be evaluated, and this determination must be based on the objectively determinable
character of the powerline and the existing insulation.
In order to achieve the purpose of the standard, enforcement should not turn on the subjective
evaluation of an inspector , without the objective
revaluation of whether a hazard is or may be present.
Further, section 57.12-82 does not state that "additional insulation" must be placeq between powerlines
and pipelines ; it merely requires separation or
insulation. 4 FMSHRC at 148, 149 (Feb. 1982).

Further,
(t]he purpose of the standard, as written, can
more accurately be achieved by an examination of the
suitability of the insulation that is present at
crossover points where water, telephone or air lines
are in proximity to powerlines. 4 FMSHRC at 149. To
like effect, see Climax Molybdenum, 4 FMSHRC 159
(February 1982).

In Cyprus Emerald Resources Corporation, 11 FMSHRC 2329
(November 1989), Commission Judge George A. Koutras, relying on

305

Homestake and Climax, supra, vacated an alleged p~wer cable vioolation 30 c.F.R. § 75.517. In Cyprus Emerald, the Secretary
alleged that "the light switch block indicator was not protected
at the point where the power cable crossed over the trolley
wire."
(11 FMSHRC at 2330).
Judge Koutras, in vacating this citation, ruled:
That in order to support any finding that a power
cable is not fully protected in violation of Section
75.517, an inspector must, on a case-by-case basis,
make an objective evaluation of all of the circumstances presented, including the use to which the
power cable is being put, its condition, the location
and distance from equipment or' other physical objects
which may reasonably expose it to physical damage, its
proximity to miners who are required to work or travel
in the area, and any other relevant factors which may
support a reasonable conclusion that the cable is located and utilized in such a manner as to expose it to
physical damage. Reliance by an inspector on the mere
location of the cable listed among unexplained policy
"loc"tion examples" is insufficient, in my view, to
estabiish a violation.
If an inspector followed the
literal language of MSHA's policy, as the inspector·
did in this case, without any evaluation of all of the
circumstances presented, he could issue a citation
simply because the power cable crossed over a trolley
wire, even thought the cable passed any number of feet
over the trolley wire and could never conceivably come
into contact with the trolley wire. Such an interpretation and application does little to foster mine
safety, and simply encourage litigation. 11 FMSHRC at
2345.

In the instant cases, the Secretary does not seek to impose
a blanket requirement that additional insulation be installed at
all crossover points. Rather, the Secretary's citations deal
with specific conditions at particular locations.
In connection with the regulation, Inspector Kirk aptly
stated that we (MSHA) look at the condition of both cables, the
voltages, the shielding, and any damage.
(Tr. 140). such an
approach is on a case by case basis.
It is, accordingly, appropriate to review certain evidence ·
as to the citations.
citation No. 3850087 was issued because the communication
cable was beneath the power cable. A~ the point where they ·
crossed there was a three-inch gap.
In Mr. Gore's opinion, "additional insulation" was required
at that crossover. The Judge has considerable difficulty in
finding that the installation of mere electrician's tape remedies

306

a problem. However, an insulation could include a flame-resistant rubber hqse or canoflex.
In any event, the method of abatement is generally within MSHA's discretion.
Based on the uncontroverted evidence, I conclude that Citation No. 3850087 was properly issued. It accordingly follows
that the contest should be dismissed.
Citation No. 3850092 involved a situation where the communication cable was above the power cable for a distance of 10 to 12
feet. However, the cables did not cross.
In Mr. Gore's opinion,
additional insulation was required in the 10- to 12-foot distance
where the cables ran parallel to each other.
It is uncontroverted that the cables did not cross.
(Tr . 3 5 , 3 6 ) .
Additional insulation is required where the cables pass
"over or under" any power conductor. Since there was not "over
or under" passage in connection with this particular location,
Citation No. 3850087 should be vacated.
For the foregoing reasons, I enter the following:
ORDER
1.

The contest of Citation No. 3850087 is DISMISSED.

2.

The contest of Citation No. 3850092 is SUSTAINED •

.~

~tive

J

Morris

LaW Judge

Distribution:
Karl F. Anuta, Esq., 1720 - 14th Street, P.O. Box 1001, Boulder,
co 80306 (Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout street,
Denver, co 80294 (Certified Mail)
ek

307

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

FEB 8 1994
WEBSTER COUNTY COAL CORP.,
Contestant

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

v.
WEBSTER COUNTY COAL CORP.,
Respondent

.. CONTEST PROCEEDING
.. Docket No. KENT 93-201-R
. Citation No. 3549595: 12/3/92
.:• Retiki Mine
I.D. No. 15-00672

.:.

.
.: CIVIL PENALTY PROCEEDING
. Docket No. KENT 93-341
. A.C. No. 15-00672-03644

. Retiki Mine
.

DECISION GRANTING TBB CON'rESTANT'S
MOTION POR SYMMARY DECISION
Appearances:

Timothy M. Biddle, Esq. Crowell and
Moring, Washington, D.C., for
Contestant/ Respondent;
Edward H. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia for
Respondent/Petitioner

Before:

Judge Feldman

This consolidated contest and civil penalty proceeding is
before me as a result of Citation No. 3549595 issued on December
3, 1992, pursuant to Section 104(a) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 814(a). The subject
citation, designated as non-significant and substantial, alleged
a violation of the mandatory safety standard contained in

308

section 75.333(e)(l), 30 C.F.R. § 75.333(e)(l), a standard
promulgated in May 1992 1 which requires, in pertinent part, that
permanent stoppings shall be constructed of "durable" material.
Specifically, Section 75.333(e) (1) provides:
••• permanent stoppings, and regulators
installed after November 15, 1992, shall be
constructed of durable and noncombustible
material. such as concrete, concrete block,
brick, cinder block, tile, or steel.
(Emphasis added).
The term "durable" is defined in Section 75 . 333(a),
30 C.F.R. § 75.333(a). The provisions of this rule section
state:
For purposes of this section: ••• "durable"
describes a material and construction method
that when used to construct a ventilation
control results in a control that is
structurally equivalent to an 8-inch hollow
core concrete block stopping with mortared
joints as described in ASTM E72-80 Section
12-Transverse Load-Specimen Vertical. load
only. (Emphasis added).
The "structural equivalency" standard in Section 75.333 is
quantified in the rulemaking proceeding that promulgated this new
mandatory safety standard. The rulemaking specified that
"structurally sound material" must withstand the same or greater
static pressure as 8-inch hollow core concrete block with
mortared joints (39 pounds per square foot) when pressure is
applied according to ASTM E72-80 testing methods. 57 Fed . Reg.
20868, 20885 (1992). ASTM is the acronym for the American
Society for Testing and Materials, an organization that has
standardized sophisticated laboratory test methods to ensure
sound engineering design of structures. (Contestant's Motion for
Summary Decision, Attachment 4). The citation in question
charged that the use of concrete block stoppings, plastered on
one side only, by the contestant/respondent (hereinafter referred
to as contestant) did not satisfy the structural equivalency
standard in Section 75.333(e) (1).
This matter was stayed .on July 20, 1993, at the parties•
request in order to permit the parties to confer with their
expert witnesses in an attempt to reach settlement. The parties
agreed that if settlement was not reached, the contestant would
file a Motion for Summary Decision (contestant's Motion). The
contestant's Motion was filed on August 16, 1993. The Secretary

1

The mandatory safety standard in Section 75.333 was
promulgated at 57 Fed . Reg. 20868, May 15, 1992, and amended at
57 Fed. Reg. 53858, November 13, 1992.
309

filed his opposition on September 14, 1993, and the contestant
replied to the Secretary's Opposition on September 21; 1993. As
a result of the parties' inability to reach settlement, by Order
dated December 1, 1993, I lifted the stay in this matter and
scheduled the contestant's Motion for oral argument. The parties
participated in oral arqument on December 8, 1993, at which time
they addressed the issues designated in the December 1, 1993,
Order.
The parties have stipulated that the permanent stopping in
issue consists of 8"x6"xl6" solid concrete blocks .w hich are
plastered with "Rite-Wall" bonding adhesive on the pressure side
only. The parties also stipulated to language in a Mine Safety
and Health Administration (MSHA) guidance document issued on
November 9, 1992, which is entitled "Ventilation Questions and
Answers" (VQA) which addresses dry stacked stoppings which are
plastered on one· side. (Secretary's Opposition, Attachment 2).
The stipulated language states,
The law does not preclude Cdry stacked
stoppirigs plastered on one side], but so far
no produ.c t has demonstrated adequate strength
when applied to only one side. However, if
the stopping, when tested under Section 12 of
the American Society for Testing and
Materials (ASTM) E72-80, passes the test, the
stopping will be acceptable~
(Emphasis
added).
It is unclear whether the contestant was aware of MSHA's
November 9, 1992, VQA when the subject citation was issued on
December 3, 1992. However, in view of the equivocal nature of
this VQA with respect to the permissibility of concrete block
stoppings plastered on one side, the issue of actual or
constructive notice of the VQA on the part of the contestant is
not dispositive.
FINDINGS OP PACT
On the basis of "the parties' pleadings, their submissions in
support thereof, their presentations at oral arqument and their
post-oral argument briefs, I have reached the following findings
of fact:
1. The purpose of "durable" stoppings is to withstand
pressure during fire or explosion in oraer to maintain the
integrity of escapeways to protect miners from the harmful
effects of combustion contamination. (Tr. 26-27: 57 Fed. Reg.
at 20868, 20885).
2. Prior to the promulgation of Section 75.333, Section
75.316-2(b), 30 C.F.R. § 75.316-2(b), governed the structural

310

standard for permanent stoppings. That mandatory standard
required that "permanent stoppings ••• should be constructed of
substantial, incombustible material, such as • • • concrete
blocks, ••• having sufficient strength to serve the purpose for
which the stopping or partition is intended . "
3. The stoppings in issue were constructed of 8"x6"xl6"
solid concrete blocks which were plastered with "Rite-Wall" on
the pressured side only.
4 . 8"x6"xl6" solid concrete blocks plastered with Rite-Wall
bonding adhesive on the pressure side only satisfied the fitness
for purpose requirements of Section 75.316-2(b).
5. Section 75.333 was promulgated by rulemaking on
May 15, 1992. Section 75.333 superseded Section 75 . 316-2(b)
effective November 16, 1992.
6. The new "durable" standard specified in Section 75.333
does not preclude the use of concrete block plastered on one side
if it is structurally equivalent (can withstand pressure of 39
pounds per square foot) to an 8-inch hollow core concrete block
stopping with mortared joints.
7 . Citation No. 3549595 was issued on December 3, 1992,
citing a violation of the new mandatory standard in Section
75.333(a) because the cited stoppings were plastered on the
pressure side only. The citation was issued approximately two
weeks after the new regulatory standard became effective.
8. Citation No . 3549595 was modified on December 14, 1992,
to change the cited violated mandatory standard from Section
75.333(a) to Section 75.333(b) (1).
9. Citation No. 3549595 was modified on December 30, 1992,
to change the cited violated mandatory safety standard from
Section 75.333(b) (1) to Section 75.333(e) (1).
10 . On July 2, 1993, approximately seven months after the
issuance of Citation No. 3549595, MSHA issued
Report No. 07-183-93 on Sealants for General pµrpose and for
Application on Dry stacked Stoppings which concluded that in
order to reach the 39 pounds per square foot structural
equivalency requirement of section 75.333, " • •• dry-stacked
concrete block stoppings require strength-improving sealants to
be applied in suitable thickness to both sides of the stopping."
(Secretary's Opposition, Attachment 3, p. 2).
11 . On August 13, 1993, more than eight months after the
issuance of Citation No. 3549595, MSHA issued
Report No. 09-225-93 on Small-Scale Testing of Concrete Masonry
Unit Wall Sections. The report noted that "the Mine Safety and

31 1

Health Administration (MSHA) accepts a-inch hollow-core concrete
block stoppings, coated on both sides with a suitable strengthenhancing sealant (surface bonding product), at least 1/8 inch in
thickness as meeting 30 C.F.R. 75.333(e)(l). 0 (Secretary's
Opposition, Attachment 4).
12. on September 1, 1993, approximately nine months after
the issuance of Citation No. 3549595, MSHA's Pittsburgh Safety
and Health Technology Center (PSHTC) had a facsimile of the
permanent stopping in issue tested using ASTM E72-80
Section 12-Transverse Load-Specimen Vertical Methods by the
Pittsburgh Testing Laboratory Division of PSI, Inc., under
contract with the Mine Safety and Health Administration. Three
48"x96°xs 0 thick solid concrete block walls coated with a
1/4 inch thick coating of Rite-Wall on one side only were tested.
The sample stopping walls were loaded on the coated side and
exhibited an average strength of 22.1 pounds per square foot as
per the subject ASTM testing methods. The specific test results
on the three sample stopping walls were 21.7 pounds per square
foot, 16.l poun~s per square foot, and 28.5 pounds per square
foot. (Letter ~rom Edward H. Fitch, Esq., to Timothy M. Biddle,
Esq., dated September 2, 1993.).
FUBTBER FINPINGS AND CONCLUSION OF I.AW

As noted ·above, Section 75.333 the cited mandatory safety
standard, became effective on November 16, 1992, only two weeks
prior to the issuance of the subject citation. Consequently,
this case presents questions of law concerning the
interpretation, application and enforcement of this new
regulatory provision that are matters of first impression. These
questions of law are:
1. Whether Section 75.333(e) (1) requires the
operator to utilize durable construction
methods as well as durable construction
materials;
2. whether the Secretary or the operator has
the burden of proof with respect to whether a
violation of Section 75.333 in fact occurred;
3. whether the subject citation was issued in
accordance with the requirements of Section
104(a) of the Mine Act;
4. and, whether the operator had adequate
notice of the requirements of Section 75.333
on December 3, 1992, the date the subject
citation was issued.

312

J:ssue one - The ••ourabili tytt Requirement as J:t Pertains to
Construction Methods and Materials
The contestant argues that the durable construction method
component of the term "durable" as defined in Section 75.333(a)
should not be incorporated into Section 75.333(e) (1) which only
references a requirement of durable construction material . Thus,
the contestant questions the relevance of its application method
of adhesive compound on one side only in that it utilized
concrete block which is admittedly a "durable material."
At the culmination of oral argument on this issue, I
rendered a bench decision that the definition of "durable" in
Section 75.333(a), which describes a construction method as well
as a construction material, must be incorporated in the
interpretation of Section 75.333(e) (1). I noted that a
regulatory safety standard should be interpreted harmoniously
with the hazard it seeks to avoid. See Emery Mining Corp. v.
Secretary of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984). In
this regard, the contestant has conceded, consistent with the
language in th~ implementing rulemaking proceeding, that the
purpose of Section 75.333 is to ensure proper underground coal
mine ventilation by requiring stoppings that can withstand
pressure from fire or explosion. It is clear, therefore, that
this mandatory standard seeks to achieve a certain minimal
structural strength. Thus, the contestant's proffered
interpretation, which ignores construction methods and simply
requires durable construction materials, regardless of their
effectiveness, is inconsistent with the regulatory purpose and
must be rejected. (Tr. 26-27, 34-35, 38-40; 57 Fed. Reg. at
20868, 20885).
.

Issue 'l'Wo - The Burden of Proof
The subject citation alleges that the contestant's concrete
block stoppings, plastered on one side, are not structurally
equivalent to an 8-inch hollow-core concrete block stopping with
mortared joints. Mortared joint stoppings are capable of
withstanding flexural loading of 39 pounds per square foot as
determined by application of ASTM E72-80 Section 12-TransverseSpecimen Vertical. (Secretary's Opposition, Attachment 3, p. 2;
57 Fed. Reg. at 20885). This ASTM testing method is an expensive
and sophisticated procedure which must be performed in a
controlled laboratory setting. (Contestant's Motion,
Attachment 4). MSHA has estimated that conducting 11 • • • an ASTM
E72-80 [test] on a candidate alternate ventilation control can
cost over $1,000. 11 (Secretary's Opposition, Attachment 4,).
At oral argument, tbe Secretary argued that "the pragmatic
reality" is that the Secretary does not have the facilities or
the budgetary wherewithal to perform the requisite ASTM test to
determine structural equivalency. (Tr. 57-58). In fact, the

313

September 1, 1993, ASTM test using Rite-Wall adhesive conducted
by PSI, Inc., was performed under contract with MSHA for the sole
purpose of preparation for a hearing in this proceeding as
distinguished from testing to support the citation when written.
(Tr. 63-64). Thus, apparently relying on "pragmatic realities,"
the Secretary asserts that it is the burden of the operator to
prove that its stoppings are structurally equivalent to a-inch
hollow-core concrete block with mortared joints if it chooses to
use an alternative method of stopping. · (Tr. 57-58).
At the oral argument, I issued a bench decision noting that
I was not persuaded by the Secretary's attempt to shift the
burden of proof. (Tr. 58-60). As a threshold matter, there is
nothing in the rulemaking proceeding that reflects that the
operator has the burden of proving structural equivalency.
Moreover, the Commission has consistently held that the Secretary
bears the burden of proving alleged violations. See ASABCO
Mining Company, 15 FMSHRC 1303, 1306-1307 (July 19,1993) citing
Jim Walter Resources. Inc., 9 FMSHRC 903, 907 (May 1987) and
Wyoming Fuel co., 14 FMSHRC 1282, 1294 (August 1992).
While the burden may shift to the operator if the Secretary
presents evidence that the pertinent ASTM structural equivalency
test was failed, the mere allegation of such failure by the
Secretary is not sufficient to shift the burden of proof. Simply
put, the accuser must present evidence to support the accusation.
Moreover, the burden of proof remains with the Secretary
even in instances where the operator must operate with the prior
approval of MSHA. For example, the Secretary must e·s tablish that
a ventilation plan provision sought to be enforced by MSHA is
suitable to the mine in question. Peabody Coal Company, 15
FMSHRC 381, 388; Jim Walter Resources, Inc., 9 FMSHRC at 907.
The Secretary must also establish that an operator is violating
an approved ventilation plan provision. Thus, the Secretary's
,assertion that the contestant bears the burden of proof in this
matter is lacking in merit.
At oral argument, I indicated that ·even if it were
appropriate to shift the burden of proof, it is not a pragmatic
solution because the validity of the purported ASTM testing
method used by the operator would remain at issue. In such an
event, it would be the Secretary's burden to prove that the
operator's ASTM testing results were unreliable. (Tr. 59).
Thus, in the final analysis, the burden of proof must always
remain with the Secretary.

314

Issue Three - section 104Ca> statutory Requirements
for Issuance of a Citation
Section 104(a) of the Mine Act requires that,
••• if, upon inspection or investigation, (an inspector]
believes that an operator ••• has vioiated ••• any
mandatory health or safety standard ••• he shall, with
reasonable promptness, issue a citation to the
operator. Each citation shall be in writing and shall
describe with particularity the nature of the
violation, including a reference to the provision of
the Act, standard, rule, regulation, or order alleged
to have been violated. (Emphasis added).
In this case it is appropriate to focus on two of the
requirements of Section 104(a). Namely, the inspector's belief
and the specificity of the violation cited.

a. Inspector•s Belief
Turning to the issue of the inspector's belief, such belief
must be based on the inspector's consideration, upon inspection
or investigation, of past events and circumstances, or upon his
analysis of current circumstances and conditions. NACCO Mining
Company, 9 FMSHRC 1541, 1549 (September, 1987)s A citation may
not be issued based upon a future analysis in the hope that the
inspector was correct when, as in this case, past events or
current observation does not support the fact of a violation.
It is of fundamental significance that, according to the
position taken by MSHA in its November 9, 1992, VQA, the
contestant's use of concrete block, plastered on one side only,
was not a per se violation of Section 75.333. Therefore, we must
focus on the inspector's December 3, 1992, inspection
observations and findings. In Consolidation Coal Company, 15
FMSHRC 130, 138 (January 1993), I concluded that an inspector's
observations of widespread sealant cracking on Kennedy stoppings
established that the stoppings were not an adequate ventilation
control. However, in the current case, the Secretary does not
contend that the issuing inspector's observations revealed a
stopping in such poor condition that it was readily apparent that
the structural equivalency test was not met. On the contrary,
September 1, 1993, laboratory testing, performed approximately
nine months after the issuance of the citation, revealed flexural
strength of 22.1 pounds per square ~oot. (Letter from Edward A.
Fitch, Esq., to Timothy M. Biddle, Esq., dated September 2,
1993). As these test results were not available on December 3,
1992, when the citation was issued, they cannot be used to
support the inspector's belief at the time of his investigation.

31 5

b. Specificity of Citation
With regard to specificity, the Commission has stated that
this requirement of Section 104(a) of the Mine Act serves the
dual purpose of permitting the operator to determine what
conditions require abatement and to adequately prepare for a
hearing. See Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 379
(March 1993) and citations therein. The December 3, 1992,
citation failed to serve· these purposes.
The December 3, 1992, citation charged that the contestant's
stoppings could not withstand 39 pounds per square foot pressure.
The Secretary mailed his proposed assessment of $50.00 to the
contestant on February 2, 1993. The contestant, pursuant to
section 100.7, 30 C.F.R. § 100.7, had 30 days from the receipt of
the proposed assessment to either pay the assessment or notify
MSHA that it desired a hearing before this Commission. On
February 8, 1993, the contestant requested a hearing which gave
rise to my jurisdiction in this matter. However, at the time of
the proposed penalty and the contestant's subsequent hearing
request, the contestant could not intelligently determine whether
to request a hearing, let alone prepare for a hearing, as it was
not advised, nor did the Secretary know, the alleged flexural
strength of the stoppings in question. Thus, the operator was
prejudiced by the Secretary's admitted reticence to perform the
requisite ASTM testing to support the alleged 75.333(e) (1)
violation. (See tr. 57-58).
It is incumbent on the Secretary to inform the contestant
what the alleged deficient structural strength is. Pertinent
citation specific ASTM testing using Rite-Wall adhesive on one
side of dry-stacked concrete block was not performed by PSI,
Inc., under contract with MSHA, until September 1, 1993,
approximately nine months after issuance of the subject citation.
This situation is analogous to citations for alleged excessive
respirable dust concentrations under 30 C.F.R. § 70.100, or
inadequate rock dusting under 3 0 C.F~R. § 75.403, without
quantification through supporting laboratory analysis. Thus,
even if the issuing inspector had the requisite belief. required
under Section 104(a) of the Mine Ac t, the instant citation is
fatally flawed because it was lacking in specificity. Therefore,
Citation No. 3549595 must be vacated on this basis alone.
Issue Pour - The Prudent Person Test
Although I have conciuded that the citation in question was
defective when issued, I will address the issue of whether
Section 75.333 afforded adequate notice to the. contestant. This
issue must be resolved based upon the information available to
the contestant as of the December 3, 1992, citation date. The
commission has stated that adequate notice requires that a
mandatory safety standard cannot be "so incomplete, vague,

31 6

indefinite or uncertain that [persons] of common intelligence
must necessarily guess at its meaning and differ as to its
application." Ideal Cement Company, 12 FMSHRC 2409 (November
1990). The appropriate test in applying this standard:
•• • is not whether the operator had prior
notice of a specific prohibition or
requirement, but whether a reasonably prudent
person familiar with the mining industry and
the protective purposes of the standard would
have recognized the specific prohibition or
requirement of the standard . Id at 2416.
As noted above, the reasonably prudent person test must be
viewed in the context of what the operator knew or should have
known on the date the citation was issued. Significantly,
concrete block plastered on one side was not prohibited by
Section 75.316-2(b), the predecessor of Section 75.333. When
viewed prospectively from the December 3, 1992, citation date, it
is clear that MSHA has concluded that concrete stoppings
plastered on one side do not satisfy the structural equivalency
test in Section 75.333. This P.~ospective analysis consists of
the results of MSHA's July 2, 1993, report on sealants for drystacked stoppings, which concluded that adhesive compound must be
applied to both sides; MSHA's August 13, 1993, report on smallscale testing of concrete masonry walls which enumerated three
alternative methods of construction consisting of a surface
bonding product applied to both sides of block stoppings that
would satisfy the structurally equivalency test; and, finally,
the September l, 1993, laboratory test of PSI Inc., which
determined that Rite-Wall plaster applied to one side of concrete
block resulted in structural strength of 22.1 pounds per square
foot. All of these facts were not known to the contestant on
December 3, 1992. Thus, the contestant did not have an adequate
basis for anticipating that its stoppings were structurally
deficient and in violation of the new regulatory standard.
Moreover, MSHA's initial citation with its two modifications
changing the alleged cited subsections of 75 . 333 further supports
the conclusion that there were significant uncertainties
associated with the application of this new regulatory standard .
Thus, I conclude that the contestant was not afforded
adequate notice as a matter of law and is, therefore, not liable
for the alleged violation in issue . I reach this conclusion
based solely upon the undisputed evidence of record. The
contestant asserts that ASTM laboratory test results on simulated
stoppings do not accurately reflect the flexural strength of
actual stoppings that are subject to mine conditions such as roof
weight. The propriety and validity of ASTM testing methods as
they pertain to structural equivalency findings require expert
testimony and are beyond the scope of this proceeding.

317

I also wish to note that this holding should be narrowly
construed. I have not addressed whether the industry has been
adequately notified of MSHA's p~rtinent findings ~n its July and
August 1993 reports and whether a citation issued after such
notification would alter my conclusions in this matter.
ORDER

In view of the above, I conclude that there are no
unresolved issues of material fact that require a hearing in this
proceeding. Accordingly, the contestant's Motion for Summary
Decision IS GRANTED. Consequently, Webster County Corporation's
contest of Citation 3549595 IS GRANTED and this citation IS
HEREBY VACATED.

/J-.£Ci 52--...:...:..'

c:?::~old
Feldman
Administrative Law Judge
>

Distribution:
Edward Fitch, Esq., Office of the Solicitor, U. s. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Timothy M. Biddle, Esq., Crowell and Moring, 1001 Pennsylvania
Ave., N.W. Washington, o.c. 2004-2595 (Certified Mail)

318

l'BDBDL JUJIB SAl'Bft DD llBALTll uvxn CODISSJ:OB
OFFICE OF ADMINISTRATIVE LAW Jll>GES
2 SKYLINE, 10th FLCX>R
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

.FEB 8 1994
JOHN J. STACK,

DISCRIMINATION PROCEEDING
Complainant

v.
ECHO BAY MINERALS,
Respondent

. Docket No. WEST 94-4-DM
.
:

. WE MD 93-12
McCoy Cove

DECISION

Appearances:

Mr. John J. Stack, · Ms. Terri Lynn Stack,
Winchester, Idaho, pro se;
.
Stephen M. Long, John F. Van De Beuken, Echo Bay
·. Minerals Company, Battle Mountain, Nevada for
Respondent.

Before:

Judge Hodgdon

This case is before me on a complaint of discrimination
brought by John J. Stack against Echo Bay Minerals Company under
Section lOS(c) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 815(c). For the reasons set forth below, I find that
while Mr. Stack may have engaged in activities protected under
the Act, the evidence does not support his claim that he was
discriminated against by Echo Bay as a result of having engaged
in such activities.
Mr. Stack filed a discrimination complaint with the
Secretary of Labor pursuant to Section 105(c)(2) of the Act,
30 u.s.c. § 815(c) (2). The Secretary concluded that the facts
disclosed during its investigation did not constitute a violation
of Section 105(c). Mr. Stack then instituted this prQceeding
before the Commission pursuant to Section 105(c) (3), 30 u.s.c.
§815(c)(3).
The case was heard on December 16, 1993, in Winnemucca,
Nevada. Ricky Cordova, Lawrence Spring, Nick Chavez and
Dan Howard, all employees of Echo Bay, testified on behalf of
Mr. Stack, as did the complainant himself. Manuel Barella,
John Van De Beuken, Antonio J. Lanzone, Stephen M. Long and
William B. Francom testified on behalf of the company.

319

PINDINGS OP PACT

Mr. Stack began working for Echo Bay as an underground miner
on August 8, 1988. On January 7, 1991, he was promoted to "Miner
B." On January 6, 1992, he was demoted retroactively to
December 30, 1991, to the job of "Pumpman/ Nipper." On April 26,
1993, he was transferred from the Underground Department to
Surface Maintenance as a "Mechanic Helper." On April 27 ,· 1993, .
Mr. stack submitted his resignation, effective May 7, 1993. His
last day of work was May 7.
Echo Bay operates two underground projects in the same area,
the Cove mine and the McCoy mine. Both projects are mined with
the same people. Depending on the work going on, miners are
moved back and forth from one mine to the other. Thus, at times
a crew may be in one mine or the other, or split between the two
(Tr. 163).
According t ·o Mr. Stack, he did not have any problems at Echo
Bay until 1991, when he complained to his supervisors that crews
were "drilling and loading at the same time" (Tr. 42-3). 1 After
that, he testified that he was sent from cove to Mccoy to "muck,"
that is, to remove broken rock and ore from the mine and that his
foreman, Manny Barella, began "harassing" him by calling him
"dirty names" and "threatening to terminate" his employment
(Tr. 43-5). The Complainant averred that· he took the position as
Pumpman/Nipper because it "was the only way I could get out of
being harassed practically every day" (Tr. 45).
Mr. Stack testified that when Echo Bay began its reduction
in force in 1993, he was offered a utility job on the surface.
He considered that he was being "railroaded" out of the
underground, so he refused the utility job (Tr. 46-7). Some time
later, after thinking it over, he informed management that he
would take the utility job, however, he was informed that the job
was no longer · available (Tr. 47).

1

That is, drilling holes for charges at the same time
previously drilled holes in the same heading were being loaded with
charges. The proper method would be to drill all of the holes in
the heading, then move the drill to another heading and then load
the rounds (Resp. Ex. M, p. 2).
320

Mr. stack stated that he was then told that he would be working
in the surface shop, but while he was filling out the paperwork
for that position, he decided that he could not do it (Tr. 48).
He then submitted his resignation (Tr. 48-51).
According to Echo Bay, Mr. Stack was not harassed for
complaining about loading and drilling at the same time (Tr. 95,
97, 103). He was not transferred to McCoy for engaging in
protected activities (Tr. 96, 166-67). He voluntarily
transferred to Pumpman/Nipper because he thought it was a less
hazardous job (Tr. 97, 160, 186). Finally, he was not treated
any differently than the rest of the miners in being reassigned
due to the reduction in force, and after refusing to accept two
reassignments, voluntarily resigned (Tr. 181-82).
To sum up, it is Mr. Stack's contention that as a result of
his complaining about loading and drilling at the same time he
was discriminated against by Echo Bay in that he was harassed
into taking a lower paying job as Pumpman/Nipper and then
subsequently forced into resigning. On the other hand, Echo Bay
asserts that Mr. stack suffered no discrimination from the
company for making safety complaints, that he voluntarily
transferred to the position of Pumpman/Nipper as a less hazardous
position and that he resigned on his own after they made several
attempts to reassign him.
PURTBER FINDINGS OF FACT
AND

CONCLUSIONS OF LAW

In order to establish a prima facie case of discrimination
under Section 105(c) of the Act, a complaining miner bears the
burden of establishing (1) that he engaged in protected activity
and (2) that the adverse action complained of was motivated in
any part by that activity . Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2768 (1980), rev'd on other
grounds sub nom. Consolidation Coal Company v . Marshall, 663 F2d .
1211 (2d Cir. 1981); Secretary on behalf of Robinette v. United
Castle coal Company, 3 FMSHRC 803 (1981); Secretary on behalf of
Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984);
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC

321

2508 (1981), rey'd on other grounds sub nom. Donovan y. Pbelps
Dodge Corp •• 709 F.2d 86 CD.C. Cir. 1983),
The operator mat' rebut the prima f acie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by the protected activity.
Pasula, 2 FMSHRC at 2799-soo; If the operator cannot rebut the
prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it was also motivated by the
miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone . Id. at 2800;
Robinette, 3 FMSHRC at 917-18.
It is undisputed that the Complainant engaged in protected
activity by complaining about possible loading and drilling at
the same time and I so find. However, the evidence does not
support Mr. Stack's claim that the adverse actions which he
complains about were motivated in any part by Echo Bay as a
result of his engaging in protected activity.
There is no doubt that the Complainant and Manny Barella had
a personality conflict {Tr. 45, 93-4). Nevertheless, there is no
evidence that their animosity toward one another was anything
other than that, i. e. a personality conflict rather than an
effort by Echo Bay to harass against Mr. stack because of his
complaints. For instance, Mr. Stack received five negative
actions, four daily reviews and one six month performance
evaluation, from Barella {Resp. Exs. E and L).
Three of those
negative daily reviews were given before the safety complaints in
question had been made. Nor are the negative evaluations limited
to Manny Barella, the complainant received three negative reviews
for poor work performance and one warning before he began on a
Barella's crew, a time when even Mr. Stack does not claim that he
was being discriminated against (Resp. Exs. A and L).

2

Respondent's Exhibit L consists of most of the papers from
Mr. Stack's personnel file at Echo Bay. The top three sheets of
the exhibit are a chronological listing of the documents in his
file. Some of the documents in the file were offered and admitted
as separate exhibits.
In those instances, I have noted on the
listing what e~ibit those documents are.

322

The record also does not support Mr. Stack's claim that he
was transferred to the other mine as a form of harassment. In
the first place, it is clear that all miners worked back in forth
between the mines (Tr.96-7, 163). In the second place, it is
obvious that Mr. stack was frequently used to perform mucking
because he was very good at it (Tr . 97, 167). Even he admitted
as much:
Oh. Did you believe that's why you were
transferred?

Q.

A. Well, I don't really know. I know that they needed
to get the muck out, but it didn't -- there was times
that I wasn't comfortable being over there all by
myself. (Tr . 44).
Q. Okay. In your opinion, would your ability to run
equipment .effectively, very productively, been a reason
why you were assigned to work at McCoy when we were
mining stope ore out of the stopes there?

A.

Probably, yes.

(Tr . 70) .

Mr. Stack also claimed that Manny Barella gave orders in
Spanish. Mr . Barella denied that he gave instructions to Stack
in Spanish, but admitted he sometimes d i d give orders in Spanish
to Hispanic employees (Tr. 92-3) . I have no doubt that
Mr. Barella frequently spoke in Spanish with his fellow Hispanics
or that this may have irritated some of the non-Hispanics
(Tr. 93, 188) . I do doubt that Mr . Barella gave direct orders to
the complainant only in Spanish, since, as the foreman testified,
he generally only gave orders to the lead miners, and because
Mr . Stack does not claim that there were times when he did not
know what jobs to perform as a result of his orders being given
only in Spanish.
Therefore, I conclude that any problems that Mr. Stack had
with Mr. Barella resulted from their inability to get along . If
Mr. Barella did, in fact, harass Mr. Stack, and there is little
in the way of specifics to support this allegation, it was
because of this an.imosity and not because Mr. Stack had
complained about safety violations.

323

The evidence also supports Echo Bay's assertion that
Mr. Stack's transfer to Pumpman/Nipper was the result of his
actions, not theirs. The best evidence on this issue is the
December 26, 1991, request for transfer signed by Mr. Stack. It
states that "I voluntarily request to be transferred." It also
indicates that the new position has a lower rate of pay.
Finally, it states as the reason for the request, "development of
skills for an employment alternative which has less risk than
underground miner" (Resp. Ex. C). This evidence is consistent
with the frequently reported statements by Mr. Stack that Echo
Bay did not pay enough money to warrant the hazards to which
miners were exposed (Tr. 165).
Lastly, I conclude that Mr. Stack was not forced to resign
from Echo Bay. It is uncontested that Echo Bay was, and is,
undergoing a reduction in force because the ore reserves were
running out in the underground mines (Tr. 63, 178). They had a
rational basis for determining what miners would remain
underground and\ they did not treat the Complainant any different
from other miners (Tr. 180-82). He was offered a job on the
surface and turned it down. It was not unreasonable on Echo
Bay's part to have already given the job to someone else when
Mr. stack informed them three weeks later that he had
reconsidered and would take the position.
Even then, Echo Bay did not terminate the Complainant but
attempted to place him again. It was only after he turned down
that job and stated that he wanted to resign that his resignation
was accepted. Since this was a voluntary resignation on
Mr. stack's part (Comp. Ex. l, Resp. Ex. F) it can hardly be
considered an adverse action on Echo Bay's part. There is no
evidence to support the claim that Mr. Stack was forced to
resign. On the contrary, it appears that Echo Bay went out of
its way to retain him.
In reaching these conclusions, it is not necessary to decide
that Mr. Stack is not credible. Most of the matters that he
testified to are corroborated by the company's evidence. It is
in the inferences that he draws from the evidence that Mr. Stack
is mistaken. To successfully show discrimination under the Act,
there must be a connection between the protected activity and the

324

resulting adverse actions. The lack of connection in this case
is perhaps most starkly illustrated by the Complainant's
allegations that as a result of his complaints about safety
violations his life was threatened and his car was damaged
(Tr. 7-8, 123-24).
With regard to the threat, if there was one, it clearly came
from a fellow miner and management apparently did not even know
about until the hearing (Tr. 123). With respect to the
complainant's car being scratched in the parking lot, it was
never determined who the culprit was, even though the incident
was investigated (Tr. 123). These are two incidents in which
there is no evidence in the record that would tie them to
management. Yet, in Mr. Stack's mind they provide part of the
basis for his claim of discrimination.
In short Mr. Stack has taken his complaint of loading and
drilling at the same time and attributed everything else that
happened to him at the mines, that he consi dered adverse, to
discrimination on the part of Echo Bay. However, there is no
evidence to support his claimed inferences. 3 Echo Bay, on the
other hand, has provided a logical explanation for what happened
to Mr . Stack and, further, has shown that what he claims would be
out of character for the company .
ORDER

I conclude that the adverse actions which Mr. Stack
about did not result from his engaging in protected
activity. Accordingly, his complaint of discrimination is
co~plains

DISMISSED.

d~~
T. Todd Hodgdon

Administrative Law Judge

3

I have considered the testimony of Ricky Cordova, the only
witness whose evidence comes close to supporting Mr. Stack's
claims. However, the accuracy of his testimony is lessened by the
fact that he made only generalized assertions, that he did not work
with Mr. Stack for more than a short while, and that he also filed
a discrimination complaint against Echo Bay apparently for some of
the same reasons.

325

Distribution:
John J. Stack, P.O. Box 422, Winchester, Idaho (Certified Mail)
John F. Van De Beuken, General Manager, Echo Bay Minerals
Company, Inc., P.O. Box 1658 , Battler Mountain, Nevada 89820
(Certified Mail)
/ lbk

326

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

February 9, 1994
CONTEST PROCEEDINGS

MAGMA COPPER COMPANY,
Contestant

v.

Docket No. WEST 94-161-RM
Citation 4332116; 12/6/93

SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION,
Respondent

Docket No. WEST 94-175-RM
citation 433579 0 ; 12/1/ 93
Superior Mine 02-00152

DECISION

Appearances:

Mark N. Savit, Esq., Washington, D.C. for
Contestant;
Marshall P. Salzman, Esq., Office of the
Solicitor, U.S. Department of Labor,
San Francisco, CA for Respondent.

Before:

Judge Weisberger
Statement of the Case

These cases are before me based upon Notices of Contest
filed by Magma Copper Company ( "Magma" or "Contestant")
challenging the issuance by the Secretary ("Respondent") of two
citations alleging violations by Contestant of 30 C.F.R.
§ 57.11050(a).
Contestant also filed a Motion for Expedited
Proceedings. At the initiative of the undersigned, conference
calls were held with counsel for both parties on January 5, 7,
and 10, 1994. The parties agreed that these cases be
consolidated and heard on January 19 and 20, 1994.
Subsequent
to the hearing, Respondent agreed to extend the time set for
abatement of the alleged v iolative conditions pending a decision
in these cases. It also was agreed that Respondent would file a
brief by February 4, and contestant would file its ·brief by
February 11. on January 26, 1994, Respondent filed a statement
waiving his right to file a brief.
I.

Findings of Fact

Ore was mined at Contestant's Superior Mine, an underground
copper mine, between 1905 and 1982. The mine closed in 1982 due
to economic conditions and, reopened in the fall of 1990. At
that time, the older workings were sealed off, and only those
areas used for current production were left open.

327

The deepest elevation at the mine is at 4100 feet.
Initially, this elevation consisted of a 22 foot diameter
vertical shaft ("No. 9 shaft") which provided intake air from the
surface. Horizontal drifts extended for more than 1500 feet from
the No. 9 shaft. In November, 1992 a dam was built to the
northeast of the No. 9 shaft blocking off access to the drifts
north of the dam.
In addition, presently, a barrier at the south end of the
drift, south of the No. 9 shaft, is "impassable to men but not to
air" 1 (sic)
(Tr. 108). Also, a sign just east of the cave
states "do not enter" (Tr. 261).
The area of the drifts at the 4100 elevation that is
presently accessible to miners, is only approximately 1/ 10 of the
area of the drifts that where accessible when this elevation was
used for exploration (See Exhibit C-3).
In addition to the No. 9 shaft, the following items are
located at the 4.10 0 elevation in the area that is presently
accessible: a fan to ventilate the loading pocket, a 98 borehole,
a slusher to clea·n under the conveyor belt, electrical switches,
a skip tender station, and a sub-station. A service cage which
is raised and lowered by way of a surface hoist to transport men
and materials from the surface to the 4100 elevation, is located
in a passageway within the No. 9 shaft. Also skips are raised
through the No. 9 shaft by way of a surface hoist to transport
ore from the 4100 elevation to the 500 foot elevation where the
ore is dumped and transported out of the mine.
An operator spends approximately 6 hours a day in the
accessible portion of the 4100 elevation were materials are
loaded on skips, and hoisted up the No. 9 shaft. In addition,
water is gathered in the area and pumped up the No. 9 shaft which
requires a person to visit the pump station daily, for 15 to 30
minutes. Also, miners enter the area to maintain the ore loading
facility, and perform general maintenance. This work averaged 25
hours a month over the last three months. These are the only
activities that take place at the 4100 elevation.

The record does not establish when this barrier was
installed. According to the uncontradicted testimony of
Steven D. Lautenschlaeger, the mine manager at the mine in
question, the sign was in place prior to the date the citation at
issue was issued, i.e., December 6, 1993. Also Lautenschlaeger
testified that there is a pile of rocks ("cave") in this area
making the area not passable. He indicated that the cave was in
place when he started to work for Contestant, in January 1992.
1

328

Air from the 4100 elevation is not used to ventilate any
other area of the mine. 2
The 3200 elevation was previously used for production. When
used for production, drifts extended over 8000 feet to the west
and north off of the No. 9 shaft. (See Exhibit C-3). Sometime
prior to January 1992, a concrete dam was installed blocking
access from the No. 9 shaft to the drifts west of the dam. Also,
a bulkhead was installed blocking off access from the No. 9 shaft
to the drift east of the bulkhead. In the accessible area that
remained, drifts extended less than 1,000 feet (See Exhibit C-3).
Air from the 3200 elevation does not ventilate any other
area of the mine.
The accessible area at the 3200 elevation at the date cited
contains, in addition to the No. 9 shaft, a shortage shed, two
seal dump pockets, a controlled ventilation door, an electrical
substation, a refuge chamber, electrical switch equipment, and a
small amount of flammable equipment in a semi-mobile storage
container.
'
A chippy hoist operator ("hoister") spends, on a average, at
least 8 hours a day in this area. Also, a person enters the area
every week to inspect a wheel in the shaft, and every other week
to inspect the hoist rope. Maintenance activities averaged, over
the last 3 months of 1993, 10 hours per month. P~rsons do not
regularly wait at levels 3200 to change from the chippy hoist to
the service cage.
II.

DISCUSSION
A.

Citations

Both the 3200 elevation and the 4100 elevation have only one
escapeway. On December 6, 1993, MSHA inspector, Seibert L.
Smith, issued a citation alleging a violation of 30 C.F.R.
§ 57.11050 regarding the 4100 elevation.
On December 1, 1993

2

Roderick M. Breland, the MSHA District Manager for the
Rocky Mountain District, testified regarding the flow of air at
the 4100 elevation, and opined that this elevation is used for
ventilation and is the main passageway for air flow. I do not
place much weight on his testimony, as he has not been in the
area in question since 1976. I accord more weight to the
detailed testimony of Lautenschlaeger, as it was based on his
personal knowledge.

329

MSHA inspector, Ronald s. Goldade, issued a citation alleging a
violation of Section 57.ll050(a) supra regarding the 3200
elevation.
Section 57.ll050(a) supra, as pertinent, provides that a
mine shall have two separate escapeway to the surface "· •• from
the lowest levels . • • ." The parties have stipulated that the
issue before me is whether the elevations at issue are "levels"
within the purview Section 57.11050 supra, and if so, whether
Contestant had adequate notice that these elevations are
considered to be "levels."
B.

Respondent's Evidence

Roderick M. Breland, an MSHA District Manager whose
jurisdiction covers nine states, previously worked as an
assistant district manager, and field office supervisor. He has
approximately 10 years experience as an MSHA inspector, and also
worked as approximately 10 years as a miner for Magma. He stated
that based upon his experience he considered both of the
elevations at issue to be "levels." However, on crossexamination he conceded that not all areas where maintenance is
performed in a mine are on a "level." He also conceded that
there are places in a mine that are used to transfer ore ("skip
pockets") that are not "levels." He also indicated that neither
the location of pumps, nor the presence of an electrical
substation, substation, nor the fact that an area is ventilated,
are determinative of whether an area is a level.
Siebert L. Smith who has been an inspector since 1978,
opined that the 4100 elevation is a "level", as the area consists
of drafts that come off the No. 9 shaft, and contains working
places, electrical substations, a pump station and a skip pocket
conveyor. Also, he based his conclusion upon fact that there was
ventilation throughout the area. On cross-examination, he
indicated that the skip pocket by itself was not a level, but was
part of a level.
Larry James Aubuchon, an MSHA supervisory inspector for the
last 10 months had been an MSHA inspector since 1975. He
indicated that he considers the 4100 elevation to be a "level" as
it is a passageway leading to a work area, and it provides access
from the No. 9 shaft. He has never been to the 4100 elevation.
Ronald s. Goldade, has been an MSHA inspector for the last 3
years. He worked for over 24 years as a miner. He opined, based
upon his experience as a miner, that the 3200 elevation is
"level," as it is a flat excavated area coming off a shaft. He
also noted that the area is ventilated, and serves as a
passageway,· as it is traversed by the hoist operator to go to his
work station from the No. 9 shaft.

3 30

Contestant's MINE EVACUATION PROCEDURES refers to the 3200
elevation, and the 4100 elevation each as a "level". The bell
system, which is posted in the cage that transports miners, lists
all elevations including those where nothing is located. The
bell system uses the term "level" for each listed elevation,
including the 3200 and 4100 elevations.

c.

Contestant's Evidence

Frederick D. Owsley, who has been involved in the mining
industry for 44 years as a miner, manager, and supervisor,
examined the 3200 elevation the week prior to the hearing. He
opined that previously it was a "level" but subsequently it had
been closed off and its use was changed. He said that "normally"
a "level" is comprised of drifts, crosscuts, raises, (Tr. 312313) and is "normally" a production area, and "is maj or haulage"
(Tr. 313). He said that on a "level" there is usually "major"
ventilation because men are working there. (Tr. 312-313 ) .
Owsley also visited the 4100 elevation. He described
it as a pump station, and skip loading facility. He indicated
that based on his experience at other mines, "···we never
referred to that as a level ••. " (Tr. 314).
He stated that in
his experience, it is "common" to have loading pockets below the
lowest level. (Tr. 315).
Lautenschlaeger opined that the 3200 and 4100 elevations are
not "levels." His opinion was based on the amount of activity at
these areas, the extent of the workings, and the absence of any
production, breaking, drilling, or blasting of rock . He opined
that, in contrast, elevations 500, 3000, 3400, 3500, 36 00, 3700,
3800, (Exhibit R-9), are all levels, because the drifts at these
elevations are used for production or development, or serve as a
secondary escapeway, main haulageway, or primary ventilation
conduit. He also noted that each of these elevations extends at
least 1,000 feet. He stated that at elevations 3400, 3500, 3600,
3700, and 3800, ore is currently being extracted.
D.

Analysis

The term "level" is not defined in the Title 30 , of the Code
of Federal Regulations. There is no regulatory or legislative
history to shed any light on the legislative or regulatory intent
regarding the scope to be accorded this term. Accordingly, the
inquiry must focus on whether a reasonably prudent person
familiar with the mining industry would have considered the cited
areas to be "levels." (See, Ideal Cement Co. 12 FMSHRC 2409
(1990)); Cannon Coal Co., 9 FMSHRC 667, 668 (1987); Ouinland Coal
Co., 9 FMSHRC 1614, 1618 (1987).

33 1

A Dictionary of Mining, Mineral and Related Terms (U.S.
Dept. of the Interior, 1968 ) ("DMMRT" ) is a generally accepted
text. The DMMRT defines a "level," as pertinent, as follows:
"A main underground roadway or passage driven along the
level course t o afford access to the stopes or workings and
to provide ventilation and haulageways for the removal of
coal or ore. See also level interval. Nelson. b. Mines are
customarily worked from shafts through horizontal passages
or drifts called levels. These are commonly spaced at
regular intervals in depth and are either numbered from the
surface in regular order or des i gnated by their actual
elevation below the top of a shaft. Lewis p. 21
"
Thus, as defined in the DMMRT, a level serves as a "main"
passage, and provides both access to workings, and ventilation
and haulage ways.
I accord ve~y little weight to the testimony of Breland, and
Aubuchon, regarding the present use of the elevations at issue,
as they never saw these areas. I place most weight upon the
testimony of Lautenschlaeger due to his personal knowledge of the
areas in question. His testimony establishes that on the dates
cited, the areas in question at the 3200 and 4100 elevation were
no longer providing ventilation and access to the workings or
stopes.
The Underground Mining Methods Handbook (Society of Mining
Engineers, 1982 ) , ("UMMH" ) relied on by Respondent's witnesses
Breland, Smith, and Goldade, defines "level", as"··· a system of
horizontal underground workings that are connected to the shaft.
A level forms the basis for excavation of the ore above or
below." (emphasis added ) . 3 The unde·r ground mining method
handbook does not define "workings." In the DMMRT, supra,
"workings" is defined, as pertinent, as follows. "b. the system
of openings in an mine f or the purpose of exploration. Normally,
usage tends to restrict the term to the area where coal; ore, or
mineral is actually worked." "Work" is defined in the DMMRT
supra, as pertinent, as "a. The process of mining coal." on the
dates cited the elevations in question were no longer being used
as workings, as no exploration or mining of coal was taking place
at those elevations. The accessible areas at each elevation at
issue had been significantly reduced and only maintenance,
service, or loading work was being performed in these areas.

3
This definition is set forth in an article entitled
"Choosing an Underground Mining Method" (UMMH supra, at 88).

332

Respondent does not have a written policy setting forth the
scope to be accorded the term "level", and whether or not that
term is to be applied to the cited elevations. In this
connection, I take cognizance of the testimony of
Lautenschlaeger, that in the numerous inspections Respondent
conducted of the elevations at issue since January 1992 4 , these
areas where never cited for not having two escapeways, except on
April 14, 1992 and April 16, 1992 when the 3200 and 4100
elevations were cited, respectively. However, it was most
significant that Lawrence E. Nelson, who is presently an MSHA
supervisory inspector5 , vacated the citation issued on April 16
for the 4100 elevation because he was of opinion that this
elevation did not meet the requirements of a "level". He
indicated that a "level" pertains to an area of major activity
involving mining, haulage, and the delivery of supplies. He
indicated that these activities are not present at the 4100
elevation. 6 He also indicated that a "level" should supply
ventilation to active areas. He said that the meaning that he
accorded the term "level", is consistent with MSHA policy.
Also, significant is the fact that in September 1993, MSHA
inspector James E. Eubanks, inspected the 4100 elevation, but did
not cite it for not having two escapeways. (Tr. 221-222 ) .
Within the above framework, I conclude that it has not been
established that a reasonably prudent person familiar with the
mining industry would apply the term "level" to the areas cited
in the citations at issue. Hence, inasmuch as it has not been
established that the cited areas were "levels", there was no
requirement for Contestant to provide two escapeways.
Accordingly, Contestant did not violate Section 57.11050(a), as
alleged. Therefore, the citations at issue are to be dismissed.

4

The usage and physical condition of the cited areas,
remained the same from January 1992 through December 1993, when
cited by Smith and Goldade.
Nelson served in this position for 14 years.
He
previously served a s an MSHA inspector for 6 years. In addition,
he had worked as an miner for Contestant for 17 years.
5

6

Nelson also vacated the citation issued on April 14, 1992
for the 3200 elevation, on _the ground that he did not believe
this elevation met the requirements of a "level". The condition
and use of this elevation in April 1992 remained the same through
December 1993, when cited in the citation at issue.

333

ORDER

It is ORDERED that these cases be dismissed.

~~

Avram Weisberger
Administrative Law Judge
(703) 756-6215

Distribution:
Mark N. Savit, Esq., Jackson & Kelly, 2401 Pennsylvania Avenue,
N.W., Suite 40 0 , Washington, o.c. 20 037 (Certified Mail)
Marshall P. Salzman, Esq . , Office of the Solicitor,
U.S. Department of Labor, 71 Stevenson Street, Suite 1110,
San Francisco, CA 94105 (Certified Mail)
/ efw

334

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

FEB 1 4 1994.
SECRETARY OF LABOR,
' MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 93-895
A.C. No. 15-17018-03510

v.

No. 1 Surface Mine
COBRA MINING INCORPORATED,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge .Amchan

This case. is before me upon petition for assessment of a
civil penalty under § 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seg. At the commencement
of the hearing in this matter on January 11, 1994, the parties
moved for approval of a settlement and to dismiss the case. The
terms of the settlement are as follows:
The parties agree that the penalty for Citation/Order
9978535/4228205 , alleging violation of 30 C.F.R. § 71.803, is
reduced from the proposed $382 to $240, which is to be paid in 12
$20 monthly installments, beginning February 1, 1994.
I have considered the representations and documentation
submitted and I conclude that the proffered settlement is
consistent with the criteria in § llO(i) of the Act.
ORDER
WHEREFORE IT IS ORDERED that the motion for approval of
settlement is GRANTED and Respondent shall pay the approved
penalty of $240 in 12 $20 installments beginning February 1,
1994. Upon such payment this case is DISMISSED.

!'

~

~r

J. Amchan
Administrative Law Judge
703-756-6210

335

Distribution:
MaryBeth Bernui, Esq., Office of the Solicitor, U. s. Department
of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville,
Tennessee 37215 (Certified Mail)
Mr. Barry Johns, President, Cobra Mining Inc., P.
Robinson creek, Kentucky 41560 (Certified Mail)
/jf

336

o. Box 1400,

:nn>BDL JaD SUftY AllD BB&L'l'JI uvxn CQDTSSXOB
OFFICE OF ADMINISTRATIVE LAW Jl.A)GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

.FEB 1 6 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

WALKER STONE COMPANY, INC.,
Respondent

.• CIVIL PENALTY PROCEEDING
Docket No. CENT 93-97-M
A.C. No. 14-00164-05515
..
Kansas Falls Quarry
.• & Mill
DECI.SION

Appearances:

Tambra Leonard, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
the Petitioner:
Keith R. Henry, Esq., Weary, Davis, Henry,
Struebing and Troup, Junction City, Kansas, for
the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

This proceeding concerns proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health act of
1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for
two (2) alleged violations of mandatory safety standard 30 c.F.R.
§ 56.14107(a).
The respondent filed a timely answer and a
hearing was held in Manhattan, Kansas. The parties filed
posthearing briefs, and I have considered their arguments in
the course of my adjudication of this matter.
Issues
The issues presented are (1) whether the conditions or
practices cited by the inspector constitute violations of the
cited mandatory safety standards, and if so, (2) the appropriate
civil penalties to be assessed for the violations, taking into
account the civil penalty assessment criteria found in
section llO(i) of the Act. Additional issues raised by the
parties are identified and disposed of in the course of this
decision.

337

Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of
1977, Pub. L. 95-164, 30 U.S.C. § 801, ~
§.@g.

2.

30 C.F.R.

3.

Commission rules, 29 c.F.R.

§

56.14107(a).
§

2700.l ~ ~·

Stipulations
The parties stipulated in relevant part as follows
(Exhibit AIJ-1):
l.

The respondent, is engaged in the mining and
selling of limestone (crushed and broken) in
the United States, and its mining operations
affect interstate commerce.

2.

The respondent is the owner and operator of
Kansas Falls Quarry and Mill Mine, MSHA I.D.
No. 14-00164.

3.

The respondent is subject to the jurisdiction
of the Federal Mine Safety and health Act of
1977, 30 u.s.c. §§ 801 et~ ("the Act").

4.

The Administrative Law Judge has jurisdiction
in this matter.

s.

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 proposed penalties will not affect the
respondent's ability to continue in business.

7.

The respondent is a small mine operator with
81,602 hours worked in 1991.

8.

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.

3 38

Discussions
The citations issued in this case were both issued on
March 19, 1992, by MSHA Inspector Richard Laufenberg, and they
both cite alleged violations of mandatory safety standard
30 C.F.R. § 56.14107(a).
Section 104(a) non-"S&S" Citation No. 4123442, states as
follows:
The V-belt drive unit on the #1 screen was not guarded.
A locked gate at the bottom of the stairs to the #1
screen was being used as a means to guard the V-belt
unit. current MSHA policy does not allow for a gate to
be used as a means to guard moving machine parts.
Section 104(a) non-"S&S" citation No. 4123553, states as
follows:
The V-belt drive units on the #2 and #3 screens were
not guarded. A locked gate at the bottom of the stairs
to the #2 and #3 screens was being used as a means to
guard the V-belt units. current MSHA policy does not
allow for a gate to be used as a means to guard moving
machine parts.
Inspector Laufenberg confirmed that he modified citation
No. 4123553, in November, 1992, to delete any reference to the
No. 3 screen, because he saw no point in issuing a separate
citation and he considered both screens to be in the same area
(Exhibit P-5; Tr. 13, 19, 53).
Petitioner's Testimony and Evidence
MSHA Inspector Richard Laufenberg confirmed that he
inspected the respondent's surface limestone mine quarry
operation on March 19, 1992. He stated that he issued citation
No. 4123552, on the No. 1 screen V-belt drive unit because it was
not guarded in that it was not totally enclosed at the actual
drive unit. The screen was elevated off the ground and rested on
four legs. The drive unit was approximately two to four feet
above an adjacent walkway that was on the south side of the
screen. The walkway was approximately three-feet wide, with an
outside handrail . Mr. Laufenberg identified Exhibit P-6, as a
diagram of the screen unit that he drew from his field notes. He
prepared the diagram when he returned to the mine for a
compliance follow-up inspection (Tr. 10-19).
Mr. Laufenberg identified the cited V-belt drive and walkway
in question and marked his diagram accordingly (Tr. 19-20). He
stated that the pinch points were "right at the walkway", and
they consisted of the shive on the screen drive which served to

339

shake the screen, and the motor drive. The turning shive was a
moving machine parts, and the V-belt itself was approximately an
inch to a couple of inches wide and moved "very fast, maybe as
fast as a thousand RPM's", and was also a moving machine part
which was not guarded all around the structure (Tr. 21-22).
Mr. Laufenberg stated that the pinch points that he
described could be contacted by someone, and be believed that
such contact would result in lacerations, and if someone's hand
was pulled through the pulleys, it would result in broken bones
or permanent disability such as a loss of a finger "if it went
through the shive" (Tr. 22). He also believed that an injury
would result if someone caught their clothing in the pinch points
(Tr. 23). He was also concerned that someone would suffer
injuries if he slipped and fell into the running V-belt drive,
and would suffer non-fatal injuries resulting in lost work days
or restricted duty (Tr. 23).
Mr. Laufenberg stated that it was unlikely that an injury
would occur because a gate restricted access to the cited area,
and it was unlikely that anyone would be there while the
equipment was running (Tr. 24). The gate was located at the
bottom of the stairs connecting the ground level to the elevated
deck area, and he was informed that the gate was normally kept
locked when the plant was in operation, and that the key to the
locked gate was kept by the quarry supervisor Clifford Moenning
(Tr. 24-25). Mr. Laufenberg confirmed that the gate was locked
when he was at the plant, but he did not enter the area because
he did not believe it was safe to do so while the equipment was
in operation (Tr. 26).
Mr. Laufenberg identified Exhibit P-3, as a photograph of
the locked gate leading to the No. 1 screen (Tr. 27). He did
not measure the gate, but estimated that it was approximately
40 inches high and that there was wire mesh material around the
gate access area (Tr. 29-30). He believed that it was possible
for someone to climb over the fence (Tr. 31).
Mr. Laufenberg stated that someone would have occasion to
be on the walkway for maintenance if there was a problem such as
holes in the screens, which would affect the sizing of the
materials, and he would possibly go there to check on the problem
(Tr. 31-32). Mr. Laufenberg also believed that someone would be
in the area for preventive, routine maintenance, such as lubrication of the machine parts, and that "most operations" do this
on a daily basis. He did not know that the respondent performed
such maintenance, was not aware of its maintenance schedule, and
only generally knew from his experience that such equipment is
greased. He did not know if the specific equipment in question
was a greaseless or maintenance free operation
(Tr. 33).

340

Mr. Laufenberg stated that depending on production, the
respondent had 20 to 30 employees at its operation, and that
one plant operator would be at the screening plant while it was
running, and he would be located in a small control room. He
stated that Mr. Moenning informed him that no one would be in
the walkway area when the equipment was operating, and that the
respondent's procedure was to shut the equipment down when
maintenance was performed (Tr. 35). Mr. Laufenberg was not
aware of any accidents at the respondent's operation as a result
of unguarded equipment (Tr. 37).
Mr. Laufenberg confirmed that one person, namely the plant
operator, would be affected by the unguarded equipment "if he
was to go up there with the equipment running" (Tr. 37). He
confirmed that he did not speak with the plant operator, and
only spoke to Mr. Moenning (Tr. 38).
Mr . Laufenberg stated that his testimony with respect to the
second citation he issued on the No. 2 screen would be the same
as his testimony regarding the No. 1 screen, and the parties
agreed that this was true {Tr. 39-40). He did not know for sure
that it was possible to shut off one of the screens without
shutting off the· others, but stated "no" {Tr. 41).
Mr. Laufenberg confirmed his "moderate negligence" finding,
and explained that he based this on the fact that MSHA had
previously informed the respondent during a prior inspection in
August, 1991, that the V-belt drive needed to be guarded, and
that the gate at the No. 1 screen would no longer be considered a
guard {Tr. 42). He stated that the respondent was informed of
this by Inspector Joe Quartaro, and that he (Laufenberg)
discussed this prior inspection with Mr. Moenning during his
March, 1992, inspection (Tr. 42). He stated that Mr . Moenning
informed him that it was his understanding when he discussed the
matter with Mr. Quartaro in August, 1991, that the respondent
would be allowed to provide guards for the equipment during the
shutdown (Tr. 43) . Mr. Laufenberg characterized a "shutdown" as
"routine maintenance, shutdown for inclement weather during the
winter" {Tr. 44) •
Mr. Laufenberg further explained that Mr. Moenning told him
that Mr . Quartero indicated that the repairs could he made "at
their convenience, or when they shut down" because the guards
needed to be built and no production would be lost during the
shut down {Tr. 45).
Mr. Laufenberg confirmed that he issued the second citation
No. 413553, on the No . 2 screen V-belt drive unit five minutes
after the first citation, and that the No. 2 unit was the same as
the No . 1 unit, and it was not guarded at all with a physical
guard around the pinch points. He believed that a person could
contact the unguarded No. 2 unit moving parts, and that the

341

conditions and hazard exposure for both screens was the same,
that the relative location of both screens was the same, that
both walkways were of the same width, and that access to the
No. 2 screen was by a stairway and walkway (Tr. 51).
Mr. Laufenberg confirmed that his gravity findings for the
No. 2 screen were the same as the No. l screen, and that an
injury was u.n likely because he believed the company has a policy
that no one is to go up to that area when the equipment is
running, and that a gate was located at the bottom of the stairs
(Tr. 52). However, he believed that it was possible for someone
to climb over the gate, and that his testimony regarding his
belief that someone would be on the No. 2 screen walkway would be
the same as his testimony regarding the No. l screen (Tr. 53).
Mr. Laufenberg stated that the citations were not abated by
the termination date of April 14, 1992, and he learned of this
when he returned to the mine site during his second fiscal year
1992, inspection. Mr. Moenning informed him at that time that
the V-belt guards had not been built because of the prior
agreement that this would be done after a shut down and at the
respondent's convenience, and that twelve months had passed from
August, 1991, until his second inspection in 1992, and the guards
had not been installed (Tr. 56). Mr. Laufenberg concluded that
there was no justification for extending the abatement time
further, and he proceeded to issue section 104(b) orders for both
screens on September 21, 1992, when he returned to the site
(Tr. 56-57). He confirmed that Mr. Moenning informed him at that
time that the screens were guarded by two locked gates that were
kept locked all of the time and that he had the key (Tr. 58). He
also stated that Mr. Moenning informed him that the screens were
not physically guarded because MSHA had accepted the gates in the
past (Tr. 58-59).
Mr. Laufenberg stated that during his first inspection,
Mr. Moenning's main objection to guarding the screens was the
agreement that this could be done during the shut down,
and that during his second inspection Mr. Moenning took the
position that the gates were in place, that "we had accepted
them in the past", and "also brought up the fact that, you know,
we had that agreement, that they were going to do it" (Tr. 59).
Mr. Laufenferg confirmed that he recommended that the citations
be "specially assessed" because the respondent had been cited
for not having the guards built, and did not do so (Tr. 60-61).
Mr. Laufenberg stated that he was not aware of any MSHA
written policy approving a locked gate as an acceptable means of
guarding moving machine parts. However, he explained that he was
aware of the fact that MSHA supervisor McGee, of the Topeka
Office, had attended a meeting in Denver, where an April,
1991, inspector's manual policy was discussed, (Exhibit P-11),
and he explained the manual policy as follows at (Tr. 66-67; 72):

342

THE WITNESS: The April, '91 policy basically says
we'll not accept it, that is what we are talking about
here, the chain lock, chain restricted access. When
Mr. McGee came back, we discussed this at a staff
meeting.
THE COURT:

What happened then?

THE WITNESS: He basically informed us that the
district manager at that time was aware that he had
knowledge that there were using chains, gates, as a
guard to block access to certain pinch points. He
informed the supervisors that if they were aware of the
condition, that they were to instruct the inspectors to
tell the mine operators that they were no longer going
to be able to use a gate, that they could leave the
gate, but they would also have to build the guards .

*

*

*

*

*

*

*

The inspectors were
if they had any of those, that
we were supposed to notify the mine operators they
needed to follow the intent of new 1988 regulation,
that the equipment itself be enclosed and guarded .
That was the reason for the new policy. The inspectors
were told if we had any of those, to give the operators
an opportunity to guard them, and not cite them, but
when we went back to evaluate the situation, to take
whatever appropriate action we thought was necessary to
get the equipment guarded.
Q.

Do you know whether or not Walker Stone was
informed of this change in policy?

A.

Yes, I do.

Q.

And I think it's been -- you have already
testified to it, when did· they receive this
notification?

A.

I was informed in September -- the last week
in September of 1991, the meeting with Joe
Quartaro and Jim McGee, and Jim McGee said
that Walker Stone was informed in August, a
month . before our meeting, that they were
informed that they were going to have to
build these guards.

Mr. Laufenberg did not believe that the respondent exercised
good faith compliance in this case because it took over twelve

343

months to complete the guarding and the guards were built only
after the section 104(b) orders were issued (Tr. 76-77). He
confirmed that the respondent was using the gates with the
knowledge of MSHA inspectors, and that someone had accepted the
gates as compliance in the past. Although there was no formal
MSHA gate policy in the past approving their use, Mr. Laufenberg
confirmed that the respondent had been cited in the past for not
having gates, and after installing them, the citation was
terminated (Tr. 78).
On cross-examination, Mr. Laufenberg stated that the
guarding regulatory section 56.14107, has been in effect since
the effective updated version effective August, 1988 (Tr. 79). He
confirmed that the citations he issued in this case stated that
"current MSHA policy does not allow for a gate to be used as a
means to guard moving machine parts" (Tr. 79-80). He confirmed
that the previously referred to provision cited as Exhibit P-11~
refers to the use of chains as non-complying guards for moving
machine parts, and that a chain is not a gate, and that this
prior policy does not directly address locked gates (Tr. 80).
Mr. Laufenberg confirmed that it was his understanding that
the respondent was cited on September 1, 1985, for having chains
across walkways (Tr. 80-81). He confirmed that he inspected the
respondent's operation in August, 1989, but did not cite the
gates at that time became they were installed at that time to
terminate a citation issued by another inspector (Tr. 82). He
agreed that he would feel "comfortable" if he had abated such a
citation by installing a gate, and that he would discuss such a
situation with an inspector who wanted to cite him for the same
condition at some future time (Tr. 82).
Mr. Laufenberg confirmed that he issued the citations in
March, 1992, fixed the abatement time as April 14, 1992, and did
not return to the mine until September, 1992. He did not believe
that the cited conditions were serious because access to the
cited areas was restricted by the locked gates (Tr. 83). He
further confirmed that when he returned in September, 1992,
Mr. Moenning told him that pursuant to the agreement the prior
twelve months, the guards would be installed during the. winter
shutdown, but that there was no shutdown that year (Tr. 84).
Conceding that there was no opportunity for the respondent to
install the guards pursuant to the agreement because there was no
shutdown, Mr. Laufenberg stated that he issued the citations
because "I feel that there was an opportunity in that six-month
period for them to fix it", and that this was a reasonable time
to build the guards because they were ultimately built in four to
five hours to abate the orders (Tr. 84-85).

344

Respondent's Testimony and Evidence
Clifford Moenning, respondent's plant manager, confirmed
that he was served with the citations issued by the inspector.
He stated that he informed the inspector that the guards would be
installed when there was a winter shut down, but that no
shutdowns occurred in 1991 or 1992, because the weather permitted
the plant to remain in operation (Tr. 92). He confirmed that the
respondent had previously received a citation No. 2392412, on
September 11, 1985, for the same screen V-belt drives cited in
this case, and at that time chains were installed across those
areas with a sign prohibiting entry while the equipment was in
operation (Exhibit R-A, Tr. 93). He further confirmed that this
citation was abated by installing locked gates and screens over
the stair rails so people could not climb over them (Tr. 94).
These gates are higher than 40 feet, and they have not been
changed since 1985 (Tr. 95).
Mr. Moenning confirmed that Inspector Laufenberg inspected
the plant in 1989, but did not cite the gates, and he could not
remember discussing the gates with the inspector (Tr. 97). He
stated that there are three other similar screens at other
locations that. he supervises. Two of the screens are guarded
similar to the ones cited in this case and they are reached by a
ladder which is removed to block access when work is performed on
the screen. The third screen is a dry screen that is "guarded up
above", and none of these screens have ever been physically
guarded (Tr. 97-98).
Mr. Moenning explained how the guards were constructed on
site and installed to abate the section 104(b) orders issued by
the inspector, and he stated that it took six or seven hours to
do this work with some difficulty because the guards had to be
constructed to withstand the vibrations of the screens (Tr. 100).
on cross-examination, Mr. Moenning stated that he has a key
to the locked gates in question, and that the operator who
controls the screening machinery also has a key. If the operator
has reason to go to those areas, he can unlock the gates, and go
to the machinery areas. He confirmed that he or the operator is
there at all times. The machinery is turned on and off by
electrical buttons in the operator's control house, and the
screens and parts can be turned off separately (Tr. 102).
Mr. Moenning confirmed that he was at the plant in August,
1991, when Inspector Quartaro conducted an inspection, and he
confirmed that the inspector informed him that MSHA's Denver
regional manager sent him a personal message stating that MSHA no
longer considered gates as adequate guards for the screens.
Mr. Moenning stated that he informed Mr. Walker that gates were
no longer acceptable and they discussed providing the quards when
there was a shut down (Tr. 103).

345

Mr. Moenning stated that he informed Mr. Walker about the
citations issued by Inspector Laufenberg in March, 1992, and they
discussed taking care of it during the shutdown time, and
Mr. Walker "said we would take care of it in shutdown time"
(Tr. 105). Mr. Moenning stated that he told Mr. Laufenberg that
he had "already changed the same thing three times, I didn't know
whether the law had changed or not", and that Mr. Laufenberg
informed him that "they interpret the law different now than they
did before" (Tr. 105). When asked for an explanation as to why
the guards had not been provided from August, 1991, through
March 19, 1992, Mr. Moenning stated as follows at (Tr. 105-106):
A.

We felt that we had abated slips on that, and
-- from the prior time, and we felt it wasn't
a danger area. There's no one works up there
while that operation is in -- while the
machine is in operation, and we didn't have
any shutdown time, and we didn't feel it was
an emergency time thing.

Mr. Moenning stated that when the inspector visited the site
in August, 1991, he did not issue a citation, and the gates had
remained in place from 1985 to 1991, and were there when
Mr. Quartero came to the site (Tr. 108).
Mr. Moenning stated that in September, 1992, the plant
operated six days a week, from 7:30 or 8:00 A.M. to 4:30 or
5:30 P.M. daily, including the winter, but depending on the
workload and weather (Tr. 110). He confirmed that the equipment
did not operate between closing time in the afternoon and the
next morning, and he could not recall any shutdowns "that would
tak~ me down long enough to guard the screens" (Tr. 112).
He
confirmed that· materials were on hand for building the guards and
stated that "we build guards all the . time" (Tr. 112). He stated
that he never had any maintenance that would have required a shut
down for several hours (Tr. 113).
Mr. Moening stated that Mr. Laufenberg never told him that
he could wait until a shut down to fix the guards, that he had no
agreement with Mr. Laufenberg, and that Mr. Laufenberg . told him
to "Fix it" (Tr. 114). Mr. Moenning further stated that when
Mr. Laufenberg issued the March, 13, 1992, citations, he
(Moenning) did not believe that he had the next seven months
until winter to install the guards, but he did not believe that
it was an emergency, and that "this was the third time that I had
redid this for MSHA, without any law changing or anything else
• • • We'd fixed it and like, they were satisfied with it for
years" (Tr. 114-115).
Mr. Moenning stated that his workload was heavy after the
citations were issued, and although he could not recall if
Mr. Laufenberg told him that he would issue a section 104(b)

346

order when he returned if the citations were not abated, he
stated that "he might have told me that" (Tr. 117).
David Walker, the respondent's owner-operator, stated that
the plant was purchased in 1970, and when the Mine Act became
effective in 1977, chains were in place to guard the screens in
question, and he was cited for this and it was corrected.
Subsequently, in August, 1991, Mr. Quartaro came to the mine,
but did not issue a citation, and Mr. Moenning told him that
Mr. Quartaro informed him that the gates on the stairs that
accessed the screens were no longer acceptable and that every
moving part on the screening tower had to be guarded
(Tr. 119-120). The regulation had not changed at that time,
and Mr. Moenning informed him that he agreed to guard each
V-belt on the screening tower during the winter shutdown
(Tr. 121). Mr. Walker stated that "I said fine • • • I didn't
feel like we had to, because we already had an abated citation on
the same guarding citation, but to get along with them we would
do it" (Tr. 121). However, there was no winter shutdown and "we
wanted to operate right through the winter," but that this was
not common (Tr. 121).
Mr. Walker confirmed that Mr. Laufenberg inspected the plant
in 1989, but did not cite the gates, and that no citations were
issued for the gates since 1985, until Mr. Laufenberg cited
them in March 1992 (Tr. 122). Mr. Walker stated that when
Mr. Moenning informed him of the citations, he informed
Mr. Moenning that "we have an agreement with them, that we'll
fix them when we shut down. We haven't shut down, so I felt like
our agreement was still good" (Tr. 123). Mr. Walker agreed that
he had no agreement with Mr. Laufenberg, but believed that he had
one with MSHA. When asked who he had the agreement with,
Mr. Walker responded "I think the inspectors all speak for MSHA"
(Tr. 123).
Mr. Walker stated that he decided to comply in December,
1992, when he ordinarily shut down, and that he did so after
calling the local MSHA district manager in Topeka, who informed
him that "he was ordered by the district manager to write it"
(Tr. 124). Mr. Walker explained his understanding of .the
agreement as follows at (Tr. 125):
THE WITNESS: We had agreed to comply with their
request. I felt like we already had it guarded, we
already have an abated citation that says it's okay.
They said, "Okay, we do it when we have time," because
this has been okay for five or six years, or whatever.
Mr. Walker stated that "I don't think regulation by policy
is legal", and when reminded that "policy is not the law",
he responded "I understand that, they changed the policy"
(Tr. 125-126). Respondent's counsel stated that "The MSHA

347

allowed compliance, that is the whole issue", but he agreed that
this is not a legal defense, and Mr. Walker believed that it was
(Tr. 126).
Mr. Walker believed that he had a verbal agreement with the
inspector (Quartaro) "to fix it when we shut down" and to change
the method of guarding during the shutdown. He stated that he
never received any written notification that gates were not
acceptable and that "all I had was the word of an inspector, that
they weren't going to accept it any more, and we agreed to fix
it" (Tr. 127).
on cross-examination, Mr. Walker reviewed the language of
section 56.14107(a), and he believed that it allows for the use
of gate guarding because "the machine part is not accessible, it
doesn't have to be guarded" (Tr. 130). He mentioned a guarding
exception if the equipment is seven feet off the ground and
inaccessible, but conceded that the two cited pinch points were
not seven feet from the walkways (Tr. 131). He stated that he
has never attempted to file a petition for modification of the
standard, and did not know about this provision (Tr. 131).
Mr. Walker confirmed that he was aware of the fact that in
August, 1991, Inspector Quartaro informed Mr. Moenning that the
use of gates were no longer sufficient to guard the equipment in
question, and that he discussed this with Mr. Moenning. It was
Mr. Walker's recollection that Mr. Moenning told him about his
conversation with Mr. Quartaro, and it was his understanding that
he could wait until the winter shutdown to install the guards,
and he guessed that Mr. Quartaro assumed the winter shutdown time
frame {Tr. 134-135). He denied knowing that Mr. Quartaro had
stated that the next time an inspector came to the mine he would
be cited if the equipment was not guarded (Tr. 135) .
Mr. Walker confirmed that he was aware of the citations
issued by Inspector Laufenberg in March, 1992, and he stated "I
felt comfortable with our abated citation. I didn't think you
could come change the rules in the middle of the game and get
fined for it" (Tr. 136). He further explained that he relied on
the agreement and that he would abate the citations and .change
the guarding when the operation shut down. He believed that he
could do this at his convenience, and that it was very possible
that if he did not shut down for the winter, he would have waited
until the next year to install the guards. He further relied on
his belief that no changes in the regulation had occurred since
1985, and his view that the gates constituted compliance because
they restricted access to the area and meet the purpose of the
regulation (Tr. 136-138).
Mr. Walker stated that after the citations were issued by
Mr. Laufenberg, he instructed Mr. Moenning to make the repairs
"if he had time at any time, even if it was before the winter

34 8

shutdown" (Tr. 138). Mr. Walker did not believe he had to guard
the screens by the scheduled abatement time because "You get
extensions all the time" (Tr. 139). Mr. Walker did· not believe
that the section 104(b) orders should have been issued, and he
stated that he tried to protest them (Tr. 139). He further
stated that if he had not received the orders he would not have
installed the guards and would have waited to do this during the
next shutdown because he believed that the gates were in
compliance, and his belief in this regard is based on the fact
that the initial citation he received was abated after the gates
were installed (Tr. 139-141). He further explained as follows at
(Tr. 144-145):
Q.

A.

You are saying you feel comfortable with the
abated citation in the face of an inspector
coming and telling you that the policy has
changed, that you need to guard it, you still
feel comfortable with the abated citation?
It's true that I felt protected, but I also
to change it.

agre~d

Q.

But did you agree to change it as soon as you
could?

A.

As soon as it was convenient for us to do
that.

Q.

wasn't this convenience rather loose? I
mean, you said earlier that you didn't really
know what MSHA assumed, but did you realize
that your idea of convenience would not being
line with what MSHA's idea of convenience
was?

A.

That's very possible.

Q.

In other words, you know by not abating the
citation that you were not doing what MSHA .
asked you to doJ

A.

That's correct. I also felt like it was not
regulation, it was policy.

Q.

And that was prior to the citation being
issued, is that correct?

A.

That's right.

Q.

After the citation was issued, you still
didn't abate the citation?

3 49

A.

No, because I still felt like it was policy,
not regulation.

Q.

All of this time were not these two V-belt
pinch points -- I should say the two V-belts
still unguarded?

A.

They were still unguarded by those guards,
they were guarded by a locked gate.

MSHA Inspector Joseph Quartaro was called in rebuttal by the
petitioner and he confirmed that he inspected the mine in August,
1991, and that he spoke with Mr. Koenning and informed him that
he was relaying a message from his supervisor and district
manager that gates were no longer acceptable and that the
equipment itself would have to be guarded. Mr. Quartaro stated
that Mr. Koenning became upset and alluded to "some sort of an
agreement that the gate was supposed to be all right" (Tr. 148).
Mr. Quartaro informed Mr. Moenning that he would be cited on
the next inspection if the equipment was not guarded, and
Mr. Moenning reiterated "that it was always all right before, and
now they are changing it again, and that he didn't think that
they should have to do it" (Tr. 149). Mr. Quartaro further
explained as follows at (Tr. 149-150):
Q.

Okay. · What else did he say?
he would change them?

A.

Well, I think it came up, you know, when he
had to change them, and I think I said
something to the effect he didn't have to
stop right now and do it, he could do it when
they were down.

Q.

When you said they could do it when they were
down

A.

Uh-huh.

Q.

-- what did that mean to you?

A.

To me, that meant when they were not
producing, at -- you know, perhaps after work
or on weekends, during breakdowns, or
whatever, you know. I think he understood
what I meant by down. You know, we've worked
together many times, and he's been inspected
many times, and I felt that he understood
what I mean by that.

350

Did he say when

Q.

So would you say -- did you come to any
agreement that he did not have to fix the
guards until a winter shutdown?
·

A.

I don't remember any such agreement as that,
no. I said, as I remember, that they can do
it when they were down. Now, if he wants to
say that mean, you know, during winter
shutdown, I -- you know, I don't know as that
necessarily is correct.

Mr. Quartaro did not believe that it was reasonable for
Mr. Moenning to assume that he could wait until the following
spring to install the guards. In response to a question as to
what he would have done if Mr. Moenning had asked if he could
wait until the winter shutdown to install the guards,
Mr. Quartaro responded that he would have told Mr. Moenning
that "you ought to get it done by the first available down
time that you had" (Tr. 154). Mr. Quartaro further explained
as follows at (Tr. 156):

Q.

Okay. When you had the conversation in
August, did you have an understanding with
Mr. Moenning that they, Walker stone, could
wait to put the guards on until their
shutdown, even if they didn't shut down for
two years?

A.

No.

Q.

Did you have any understanding that they
would not get cited because you had told them
that they did not have to fix the guards
until they shut down, even if that time
even if there was no definite time of
shutdown?

A.

No, because as I stated earlier, I think what
I said was that it had to be done prior to
the next inspection . You know, the next
inspection, done any time.

Mr. Quartaro believed that the "next inspection" after his
visit could have been anytime after October l, 1991, through
December (Tr. 157-158).
On cross-examination, Mr. Quartaro stated that "the message
he conveyed" in August, 1991, to Mr . Moenning was oral and there
was nothing in writing, and that neither he or Mr. Moenning
explained what was meant by "when the mine was down" (Tr. 159) .

351

Mr. Quartaro could not recall that any specific time or date when
the guarding had to be in place was mentioned, and he did not
state any specific time for compliance (Tr . 160).
With regard to his instructions concerning the discontinued
acceptance of gates as compliance with the guarding requirements
of the regulation in question, Mr. Quartaro stated that the
decision was apparently made at the MSHA Denver district meeting,
and he explained further as follows at (Tr. 164):
THE WITNESS: That information was brought back to us
by our supervisor and told to us. You know, when they
do that, .well, then if you go to someplace and they
have a gate there, and then it becomes our job to tell
him . And at that time, by the way, we were also told
that because it was a change in policy, that you
weren't to issue a citation at that time, you were only
to tell them, and give them this fair amount of time to
comply before a citation would be issued.
Mr. Quartaro could not recall that any written instructions
followed the verbal communication to him. He confirmed that he
was aware at that time that gates were being used as guards and
that this was acceptable because of MSHA'S policy or
"understanding", and he would not cite an operator for using
a gate at that time (Tr. 165-166).
Petitioner's Arguments
The petitioner argues that the evidence establishes that the
cited moving machine parts were not guarded by an enclosure to
prevent persons from coming in contact with the machine pinch
points . The petitioner takes note of the fact that the
respondent does not claim that section 56.14107(a), does not
apply to the cited equipment. In response to the respondent's
defense that it complied with the regulation by installing a
locked gate, the petitioner asserts that while the gate may have
restricted access to the equipment, it was not an adequate guard
and did not physically prevent anyone from coming into contact
with the moving machine parts .
The petitioner concedes that while the presence of a gate
may affect the likelihood of an injury, it cannot satisfy the
requirements of section 56 . 14107(a), because nothing will prevent
a person from coming in contact with the moving machine parts
once a person gains access to the area. The petitioner cites
inspector Laufenberg's testimony that it was possible for someone
to climb over the gate, that someone could be at the equipment
checking it for routine maintenance, and that two employees had
keys to the 9ate and could have gained access to the equipment.

352

Citing the "unpredictability of human behavior", the petitioner
concludes that an employee might attempt to save time and
lubricate the machinery while it was operating, rather than
shutting the machine down.
The petitioner points out that Mr. Walker and Mr. Moenning
were aware of the fact that Inspector Quartaro had notified them
in August, 1991, that using gates as guards would no longer be
acceptable. The petitioner acknowledges that Mr. Quartaro
informed them that they did not need to immediately shut down the
equipment, and could unit until the plant shut down, but also
stated that the equipment would have to be guarded by the next
inspection or a citation would be issued. The petitioner further
points out that Mr. Quartaro did not state that the respondent
could install the guards at its convenience, and that he meant
that the guards could be installed after work, on week-ends, or
when there was a break-down, and that Mr. Quartaro believed that
the respondent knew what he meant. Further, the petitioner cites
Mr. Walker's testimony that by interpreting Mr. Quartaro's words
to mean that he could install the guards when he thought it was
convenient, he was not doing what MSHA requested.
The petitioner concludes that once faced with a citation and
a time for abatement, the respondent was required to abate the
condition within the allotted time, and if it disagreed with the
citation, it had a right to a hearing on whether the citations
were properly issued. By refusing to cooperate with the
inspectors and to reject MSHA's determination that the cited
conditions constituted violations, the petitioner concludes that
the respondent acted in bad faith. The petitioner further
concludes that the respondent could have taken the approximately
four hours to construct and install the guards, and points out
that it had six months to build and install the guards on the
screens, not counting the six months that it was aware that it
was not in compliance, and that Mr. Walker testified that he
would not have complied with the citations without the issuance
of the Section 104(b) orders. Under these circumstances, the
petitioner believes that the section 104(b) orders were
justified, and that the special penalty assessments were
warranted.
Respondent's Arguments
The respondent does not dispute the fact that the cited
screen v-belt drives were not individually physically guarded
from contact. It contends that the drives were "guarded" by
locked gates at the bottom of the access stairs leading to the
equipment, and relies on the fact that this method of guarding
had been inspected by MSHA for a number of years without any
citation being issued.

353

The respondent acknowledges that during an MSHA inspection
in August, 1991, it was advised that the use of locked gates as a
guarding method for the equipment in question was no longer
acceptable to MSHA. Respondent asserts that it agreed that it
would change the method of guarding when the plant shut down for
the winter. However, the plant did not shut down for the winter,
and during a subsequent inspection on March 19, 1992, the
respondent was cited for failure to properly guard the cited belt
drive units. Subsequently, on September 21, 1992, the inspector
who issued the citations returned to the mine, and after finding
that the conditions had not been abated and the guards were not
installed, he issued section 104(b) orders shutting down the
cited equipment. The guards were provided and the orders were
terminated the next day.
The respondent takes the position that based on more than
three years of MSHA inspections without citation for the use of
locked gates, and without a change in the regulation, its method
of guarding the cited equipment with gates was in compliance with
the regulation. In further support of this position, the
respondent cites , Inspector Laufenberg's testimony that there had
been no change in. the regulation since 1988, and that locked
gates to prevent access had been acceptable and passed
inspection.
The respondent cites the testimony of Inspector Quartaro
confirming the fact that MSHA supervisors informed inspectors of
the change in the interpretation of the regulation which led to
the citations in this case, but it takes the position that a
change in interpretation without notice and opportunity for
hearing is not a lawful change in the regulation.
The respondent asserts that all of the witnesses testified
to the conversation between Mr. Moenning and the inspectors
"which resulted in an agreement" that it could change the method
of guarding "to meet this new interpretation" when the plant shut
down for the winter. However, between August, 1991, "when this
new interpretation was first announced", and March, 1992, when
the citations were issued, the plant had not shut down for the
winter and continued to operate.
The respondent asserts that Inspectors Quartaro and
Laufenberg did not deny that the respondent had been told it
could change the method of guarding during the winter shutdown,
and that the only evidence in support of the citations is that
"their supervisors" felt that sufficient time had past to enable
the respondent to change the method of guarding. Respondent
contends that this ignored MSHA's concurrence that the change
could be made during a shutdown even though no plant shut down
occurred, and that Mr. Walker believed that that inspectors
intended that the change in the guarding method be made when the
plant shut down. Under all of these circumstances, the

354

respondent suggests that no violations occurred. However, if the
citations are affirmed, and relying on the purported MSHA
"agreement", and the decision in Moline Consumers company,
15 FMSHRC 1954 (September 1993), the respondent further suggests
that minimum assessments be made for the violations.
Find~ngs

and Conclusions

The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 56.14107(a), which provides as
follows:
§

56.14107 Moving machine parts.

(a) Moving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains,
drive, head, tail and takeup pulleys, flywheels,
couplings, shafts, fan blades, and similar moving parts
that can cause injury .
MSHA's Program Policy Manual, June 18, 1991, with respect to
the interpretation and appli cation of section 56.14107(a), states
in relevant part as follows (Exhibit P-11):
All moving parts identified under this standard are to
be guarded with adequately constructed, installed and
maintained guards to provide the required protection.
The use of chains to rail off walkways and travelways
near moving machine parts, with or without the posting
of warning signs in lieu of guards, is not in
compliance with this standard.
In Yaple Creek Sand & Gravel, 11 FMSHRC 1471 (August 1989),
Judge Morris found that a gate 4 to 5 feet from an unguarded
chain drive assembly on a hopper feeder conveyor belt did not
satisfy the guarding requirements of section 56 . 14001
(redesignated 56.14107).
In Moline Consumers Company, 12 FMSHRC 1953 (October 1990),
I affirmed a citation issued on June 21, 1989, for a violation of
the guarding requirements of section 56.14107, because of the
mine operator's failure to physically guard a crusher V-belt
drive motor. The cited equipment was being "guarded" by a gate
normally equipped with a padlock, but the gate was partially
opened and unlocked at the time the inspector observed the
condition.
In the Moline Consumers case, although the operator conceded
that the cited equipment was not individu~lly physically guarded
and constituted a violation of section 56.14107, it relied on the
fact that the MSHA district that inspected its operation accepted
a gate as compliance with the regulation, and it challenged

355

MSHA's position that the gate must be kept secured with a bolt
and nut rather than a padlock and key. The operator also relied
on the fact that in another MSHA district where it operated, it
had not been cited for guarding equipment with padlocks rather
than bolts. The inspector who issued the initial citation, the
inspector who issued the follow-up section 104(b) order, and
their supervisor all confirmed that at that point in time their
district accepted gates secured by bolts as compliance with
section 56.14107, but did not accept gates secured only by
padlocks. Indeed, after the section 104(b) order was issued, the
operator installed a physical guard over the cited belt drive to
abate the order, but was subsequently permitted to remove the
guard and allowed to continue to use the bolted gate as a means
of guarding. out of an apparent abundance of caution, the
operator also used a padlock to secure the gate and posted
warning signs.
In Moline Consumers, I noted that MSHA's Program Policy
Manual, July 1, 1988, contained no reference to the use of locked
or bolted gates as a means of complying with the guarding
requirements of former section 56.14001, but did mention the fact
that the use of chains at walkways and travelways near moving
machine parts was unacceptable. I also noted that an MSHA
publication guide relating to equipment guarding relied on in
part by the operator also stated that moving machine parts must
be individually guarded rather than restricting access by
installing railings.
In a subsequent Moline Consumers Company case, 15 FMSHRC
1954 (September 1993), Commission Judge Gerold Feldman rejected
the operator's use of perimeter fencing to guard a jaw crusher
with drive assembly pinch points, as compliance with the guarding
requirements of section 56.14107(a). The fencing in question was
similar to that used at the Moline Consumers operation that was
the subject of my case. Judge Feldman ruled that it was clear
from the plain and unambiguous words of the regulation, that
moving machines parts must be individually physically guarded and
that the use of area guarding, such as fencing, does not meet the
standard. Judge Feldman also concluded that it was clear that
the intent of the standard is to protect individuals f~om moving
machine parts rather than the machine itself, and he cited two
U.S. Labor Department Petition for Modification decisions
concerning section 56.14107, concluding that area guarding is
only an alternative to the required guarding of moving parts
found in that regulation.
In Highlands County Board of Commissioners, 14 FMSHRC 270,
291 (February 1992), I affirmed a violation of section
56.14107{a), after concluding that the specific and unequivocal
language of the regulation requires guarding for any of the
enumerated moving machine parts, and that the obvious intent of
the regulation is to prevent contact with a moving part.

356

In Qyerland Sand and Gravel, 14 FMSHRC 1337, 1341 (August
1992), Commission Judge David Barbour affirmed a violation of
section 56.14107(a), after concluding that a padlocked chain
stretched across an access stairway leading to an unguarded
screening device used to screen gravel did not constitute
adequate guarding within the meaning of the regulation.
I conclude and find that the clear and unambiguous language
found in section 56.14107(a), which states in relevant part that
"moving machine parts shall be guarded to protect persons from
contacting" the enumerated and "similar moving parts" requires
that such parts be individually physically guarded, and that the
use of perimeter or area guarding, such as fences or locked
gates, as a means of preventing or impeding access to the
equipment, does not comply with the standard. Since the obvious
intent of the standard is to prevent injuries to anyone who may,
for whatever reason, come in contact with an exposed moving
machine part, I cannot conclude that requiring a guard at the
specific location of the moving machine part to prevent contact
by anyone who may have gained authorized or unauthorized access
to the equipment, is unreasonable. The respondent does not
dispute the fact that the cited screen V-belt drives were not
individually physically guarded from contact.
In the course of the hearing, the respondent's counsel
stated that the respondent decided to litigate the citations "as
a matter of principle" because locked gates had been accepted as
compliance in the past as a matter of policy (Tr. 63-64). In
this regard, the respondent asserted that MSHA's policy change in
the interpretation and application o·f section 57 .14107 (a), with
respect to the use of locked gates as a means of compliance, was
unlawful because it was accomplished without notice and hearing.
The respondent's arguments are rejected. The respondent has
acknowledged that it was advised in August, 1991, seven months
before the citations were issued, that the use of locked gates as
a guarding method were no longer acceptable, and the fact that
MSHA's office may have made that decision without formal notice
and hearing does not warrant the vacation of the citations. I
conclude and find that normal APA rulemaking was not required
because no mandatory safety regulation was involved. ·
I find no evidence that MSHA's past acceptance of locked
gates as a means of compliance with the standard was in writing,
or incorporated as part of its official policy manual. The
written policy of record simply states that the use of chains
across a walkway or travelway was not acceptable and no mention
is made of locked gates. The evidence establishes that the
respondent was cited for a guarding violation on September 11,
1985 (exhibit R-A), because it had "guarded" its V-belt screen
drives with a chain and a sign placed across the walkway leading
to those areas. The citation was abated after the respondent
removed the chain and installed a locked gate as a means of

357

blocking access to the cited equipment. The respondent obviously
views the abatement as MSHA's "policy" acceptance of locked gates
as a means of compliance, particularly since the use of the gates
were not challenged during subsequent MSHA inspections. However,
in the context of a litigated case, the question of whether or
not the use of a gate complies with section 57.14107{a), is a
matter for adjudication by the Commission and its trial judges.
Local MSHA policy directives, or policy manual guidelines, are
not officially promulgated regulatory standards or rules of law
binding on the Commission or the trial judge. See: Old Ben Coal
Company, 2 FMSHRC 2806, 2809 (October 1980); Alabama By-Products
Corporation, 4 FMSHRC 2128 (December 1982); King Knob Coal co.,
3 FMSHRC 1417 (June 1981). However, any confusion resulting from
inconsistent policy interpretations and applications may mitigate
the respondent's level of negligence and the civil penalty
assessment for the violation.
The respondent's suggestion that the citations should be
vacated because it had an "agreement" with MSHA that it could
construct and install the required guarding at its convenience
during any winter shutdown after August, 1991, when it was first
informed that MSHA would no longer accept locked gates as
equipment guarding is rejected. I find no credible probative
evidence of any binding agreement between MSHA and the respondent
that permitted the respondent to wait indefinitely for a winter
season severe enough to cause it to shut down its operation,
thereby providing a "convenient" time for it to comply with the
requirements of section 56.14107(a). I conclude and find that
the respondent was obliged to abate the citations issued by
Inspector Laufenberg within the time fixed for abatement, and
there is no evidence that Mr. Laufenberg was a party to any
"agreement". Indeed, Mr. Moenning admitted that no such
agreement existed, and that Mr. Laufenberg did not tell him that
he could unit until a shut down occurred before guarding the
equipment. Mr. Moenning also confirmed that at the time the
citations were issued, he did not believe that he had the next
seven months until winter to install the guards (Tr. 114-115).
Insofar as any "agreement" with Inspector Quartaro is
concerned, I find no credible evidence to support any reasonable
conclusion that Mr. Quartaro agreed to any "open ended" time
frame within which the respondent could comply and install the
guards at the time he visited the mine in August, 1991, and
informed the respondent that locked gates were no longer
acceptable. Although Mr. Quartaro may not have informed
Mr. Koenning of any specific time for compliance, and simply
advised him that the guards could be installed during "the first
available down time", I find credible Mr. Quartaro's testimony
that the guards would have to be installed by the next inspection
which would have occurred during the last quarter of 1991. I
find incredible the respondent's suggestion that in the absence

of any winter shut downs, it could have waited indefinitely to

358

comply and install the guards . I also find incredible
Mr. Walker's reliance on the prior abatement of the September 11,
1985, citation as an excuse for not complyinq with ·t he citations
issued by Inspector Laufenberq on March 19, 1992.
The respondent's assertion that the citations should not
have been issued because its method of guardinq the cited
equipment had not been previously cited by MSHA inspectors
is rejected . I conclude and find that the fact that
Inspector Quartaro did not issue a citation when he inspected
the mine in August, 1991, or that other inspectors did not cite
the use of qates as guardinq devices in the past, did not estop
Inspector Laufenberq from issuing the citations during his
March 19, 1992, inspection. While the absence of prior citations
may be relevant to the issue of neqligence, it is not controlling
on the issue as to whether or not there was a violation.
It is clear that the lack of previous enforcement does not
support a claim of estoppel. Commission Judqes have consistently
held that the lack of prior inspections and the lack of prior
citations does not estop an inspector from issuing citations
during subsequ~nt inspections. See: Midwest Minerals Coal
Company. Inc., ·3 FMSHRC 1417 (January 1981); Missouri Gravel Co . ,
3 FMSHRC 1465 (June 1981); Sevtex Materials Company, 5 FMSHRC 520
(April 1986); Southway Construction Co., 6 FMSHRC 2426 (October
1984). Further, in the case of E1Uerv Mining Corporation v .
Secretary of Labor, 3 MSHC 1585, the Court of Appeals for
the Tenth Circuit, in affirming the Commission's decision at
5 FMSHRC 1400 (August 1983), stated in relevant part as follows
at 3 MSHC 1588:
As this court has observed, "courts invoke the doctrine
of estoppel against the government with qreat
reluctance" • • . • Application of the doctrine is
justified only where "it does not interfere with
underlying government policies or unduly undermine the
correct enforcement of a particular law or regulation"
• • • . Equitable estoppel "may not be used to
contradict a clear Congressional mandate," • • • as
undoubtedly would be the case were we to apply it
here • • • •
Althouqh the record reflects some confusion surroundinq
MSHA's approval of Emery's training plan, as a qeneral
rule "those who deal with the Government are expected
to know the law and may not rely on the conduct of
qovernment aqents contrary to law" • • • •
on the basis of the foreqoinq findinqs and conclusions, I
conclude and find that the petitioner has established the
violations by a clear preponderance of the evidence adduced in
this case. Accordinqly, the disputed citations ARE AFFIRMED.

359

The Section 104Cbl Orders
Although Mr. Walker stated that he attempted to contest the
two section 104(b) orders that were issued because of the
respondent's failure to timely abate the cited conditions, there
is no evidence that he did in fact timely contest the orders
pursuant to section 105(d) of the Act and Commission Rule 20,
29 C.F.R. § 2100.20. Consequently, the two section 104(b) orders
are not in issue in this civil penalty proceeding except to the
extent that they may be relevant to the respondent's good faith
compliance ·and the civil penalties assessed for the violations.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business
The parties stipulated that the respondent is a small
operator and that payment of the proposed civil penalty
assessments will not adversely affect its ability to continue
in business.
History of Prio~ violations
\

An MSHA computer print-out reflects that for the period of
March 19, 1990, to March 18, 1992, the respondent paid civil
penalty assessments of $192 for five (5) citations, four (4) of
which were "single-penalty" citations. It was not cited for any
violations of section 56.14107 (exhibit 1). The print-out
further reflects that prior to March 19, 1990, the respondent
paid $1,235, for thirty-three (33) citations, eight (8) of which
were "single penalty" citations. Six (6) prior citations of
section 56.14107, are noted, but no further information was
forthcoming from the petitioner with respect to these citations.
I conclude and find that the respondent has a good compliance
record and that additional increases in the assessments on the
basis of this record are not warranted.

Gravity
The inspector found that the violations were not significant
and substantial (S&S). I take note of the fact that access to
the unguarded equipment in question was restricted by the locked
gates in question, and the inspector found it unlikely that
anyone would be in the immediate equipment area while the
equipment was in operation. Under the circumstances, I agree
with the inspector's non-S&S findings, and I conclude and find
that the violations were non-serious.
Negligence
Inspector Laufenberg determined that the violations were the
result of moderate negligence on the part of the respondent, and
he based his findings on the fact that the respondent was advised

360

as early as Auqust, 1991, by Inspector Quataro that the equipment
needed to be quarded and that locked gates would no longer be
acceptable to MSHA. On the facts of this case, I agree with the
inspector's negligence finding and I conclude and find that the
violations were the result of the respondent's failure to
exercise reasonable care.
Good Faith Compliance
After careful consideration of all of the evidence and
testimony in this case I conclude and find that the respondent
failed to exercise good faith compliance in timely abating the
citations. Although I can sympathize with the respondent's
frustration with respect to MSHA's prior enforcement
interpretations regarding to the use of gates as a guarding
method, the fact remains that the respondent was notified in
Auqust, 1991, that gates were no longer acceptable.
I can further understand the respondent's subsequent
reliance on the fact that MSHA may have taken a rather benign
interest in citing the respondent for using a locked gate, and
the respondent's belief that Inspector Quartaro "agreed" that the
quards could be installed during a shut down time which may not
have been clearly defined. However, once the citations were
issued by Inspector Laufenberg on March 13, 1992, and he
instructed Mr. Moenning to "fix it", without any reference to any
shutdown time frame, the respondent was compelled to quard the
equipment within the abatement time fixed by Mr. Laufenberg.
Mr. Moenning admitted that he did not believe he could unit
until a winter shut down to abate the citations, but no further
action was taken even though four or five additional months past
beyond the April 14, 1992, abatement time fixed by the inspector.
Mr. Moenning admitted that materials were on hand to construct
the quards, and he confirmed that they were routinely
constructed. However, compliance was finally achieved only after
Inspector Laufenberg issued the section l04(b) orders, taking the
equipment out of service, and they were terminated the following
day after the equipment was guarded.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section llO(i) of the Act, I conclude a.n d find that the
following civil penalty assessments are reasonable and
appropriate for the violations that have been affirmed.
Citation No.
4123442
4123553

3/19/92
3/19/92

30 C.F.R. Section

Assessment

56.14107(a)
56.1410(a)

$350
$350

361

QROER

The respondent IS ORDERED to pay the aforementioned civil
penalty assessments, and payment shall be made to the petitioner
(MSHA) within thirty (30) days of the date of this decision and
order. Upon receipt of payment, this matter is dismissed.

~.~o~

Administrative Law Judge

Distribution:
Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Office Building, 1961 Stout Street, Denver,
co 90294 (Certified Mail)
Keith R. Henry, Esq., Weary, Davis, Henry, Struebing, and Troup,
819 N. Washington, P.O. Box 187, Junction City, KS 66441
(Certified Mail)
/ ml

362

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

fEB_16 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

:

CIVIL PENALTY PROCEEDING
Docket No. KENT 93-467
A.C. No. 15-17202-03508M

v.

LARRY D. IRVIN
EMPLOYED BY
NEW HORIZONS COAL, INC.,
Respondent

. Dulcimer # 7 Mine
.

DECISION

Appearances:

J. Philip Smith, Esq., Office of the Solicitor,
U. s. Department of Labor, Arlington, Virginia,
for Petitioner;
Sidney B. Douglass, Esq., Harlan, Kentucky,
for Respondent.

Before:

Judge Amchan
Statement of the case

On January 26, 1993, Adron Wilson conducted an MSHA
inspection of the Dulcimer # 7 Mine in Harlan county, Kentucky
(Tr. 9, Exh. G-1). This mine was operated by the Great Western
Coal Company, which has since changed its name to New Horizons
Coal, Inc. (Tr. 8-9) • During the inspection, Wilson,
accompanied by Stanley Sturgill, Great Western's walkaround
representative, was walking from one section of the mine to
another when he saw miner Larry D. Irvin (Tr. 12 - 13, 17, 22,
36-37. 67 - 69, 101-106).
According to Inspector Wilson, his cap light was shining
directly on Mr. Irvin's face (Tr. 15). He observed a lighted
cigarette hanging from Irvin's mouth and he saw and smelled
cigarette smoke (Tr. 13, 15, 153). The inspector testified at
the hearing that Irvin quickly moved away from him, removed his
hard hat and made a motion which led Wilson to believe he was
putting out a cigarette in the hard hat (Tr. 17).
Wilson turned to Sturgill and asked him if he saw a miner
smoking (Tr. 67); Sturgill said he had not. Wilson and Sturgill
walked somewhere between 25 to 70 feet to the location at which
363

Wilson had observed Mr. Irvin (Tr. 13, 66, 70). 1 At this
location, Sturgill saw and smelled cigarette smoke (Tr. 67 - 68,
157, 164).
Almost immediately, Mr. Irvin's foreman, Danny Bruce,
appeared on the scene (Tr. 46). At Mr. Wilson's request, he
searched Mr. Irvin and his partner, roof bolt machine operator
Douglas Howard. Mr. Bruce had the two men take off their hard
hats, pull their pants legs out of their boots and turn all their
pockets inside out. Mr. Sturgill searched their lunch buckets
(Tr. 38, 41, 106 - 107, 140 - 142). Bruce and Sturgill found no
cigarettes, matches or any other smoking materials (Tr. 18 - 19,
140 - 142). No cigarette butt or other physical evidence that
any employee had been smoking was found by inspector Wilson {Tr.
17). The inspector also found no physical evidence that Mr.
Irvin had extinguished a cigarette inside his hard hat {Tr. 47 50)
on January 28, 1993, Inspector Wilson served upon Mr. Irvin
Citation No. 4241505 alleging that Irvin violated section 317 of
the Mine Safety\ and Health Act, 30 u.s.c. § 877{c) {Exh. G-3).
That provision, 'which is also found at 30 C.F.R. S 75.1702,
provides that: "No person shall smoke, carry smoking materials,
matches or lighters underground .•• "
Section llO(g) of the Act, 30 u.s.c. § 820{g), provides that
any miner who willfully violates the standard prohibiting smoking
shall be subject to a maximum penalty of $250 for each
occurrence. MSHA proposed the maximum $250 penalty for the
violation alleged in citation No. 4241505.
The allegation of willful conduct on the part of Mr. Irvin
is based upon a lecture given by Wilson at the beginning of his
inspection to all the employees at Dulcimer# 7 mine {Tr. 19-22).
Due to a fatal mine accident in Norton, Virginia a month and half
before the inspection, Mr. Wilson was making a special point of
advising miners about the dangers of smoking underground
{Tr • 3 2 - 3 4 ) • 2
Mr. Wilson concludes that Mr. Irvin was present at his
lecture because he asked Great Western management if any
employees were not present {Tr. 21 - 22). He was not advised
that Mr. Irvin was not in attendance. As there is no evidence

1

Wilson was about 25 feet closer to Mr. Irvin than was
Sturgill {Tr. 66 - 67).
2

Approximately 9 miners died in the explosion at the south
Mountain mine in early December, 1992. MSHA believes the
explosion was caused by someone smoking underground {Tr. 167).

364

indicating that Mr. Irvin was absent, I conclude that he was
present when Mr. Wilson lectured miners about the dangers of
smoking underground prior to January 26, 1993.
Mr. Irvin categorically denies that he was smoking when
approached by Inspector Wilson on January 26, 1993, or that he
had any smoking materials {Tr. 111-112, 107)~ He contends that
just prior to seeing Mr. Wilson, his partner's roof bolt machine
was stuck. He also states that the roof bolter's wheels spun for
five to ten minutes in an attempt to get free, thereby creating a
lot of smoke (Tr. 101 - 102). When observed by Mr. Wilson, Irvin
contends he was assisting his partner with the roof bolt machine.
He rushed around a corner to prevent part of the roof bolter from
dragging on the floor (Tr. 101-106).
Respondent denies that he removed his hard hat until asked
to by Mr. Bruce when he was searched {Tr. 108). He also stated
that he was using smokeless tobacco, some of which he had in his
jaw when searched {Tr. 116-117). Mr. Bruce states he found a can
of smokeless tobacco on Mr. Irvin and that Irvin did have some in
his mouth (Tr. 140 - 141).
Mr. Irvin's account is supported by the testimony of his
partner, Douglas Howard, who stated he was· in a position to see
if Mr. Irvin was smoking and that he was not smoking (Tr. 126).
Mr. Howard also explains the presence of smoke by reference to
the spinning of the roof bolter's tires or the possibility of the
machine's cable having passed through some rock dust (Tr. 126127). Sylice McDaniel, who was working near Respondent on
January 26, 1993, also testified that the roof bolter produced a
lot of smoke, and that he did not smell cigarette smoke (Tr. 136137).
Discussion
The instant case is one which must be decided simply by
determining whose testimony is more credible, Mr. Wilson's or
Mr. Irvin's. Mr. Irvin testified under oath that he was not
smoking and his testimony is supported by that of Mr. Howard and
the fact that immediately after being observed by Mr~ Wilson
absolutely no physical evidence was found that indicated Irvin
was smoking or possessed smoking materials.
on the other hand, there is nothing to suggest that
Mr. Wilson had any reason to accuse Mr. Irvin with smoking
underground if he was not doing so. That, however, does not rule
out ~he possibility that Mr. Wilson did not see what he thinks he
saw. On balance, I credit the testimony of Mr. Wilson and find
that Mr. Irvin had a lighted cigarette in his mouth when
Mr. Wilson observed him. It is the corroborative testimony of
Mr. Sturgill that persuades me that Mr. Wilson's testimony is
more credible than that of Mr. Irvin.

365

Mr. Sturgill had no reason to testify that he smelled
cigarette smoke if he did not. I do not believe it is likely
that Sturgill confused smoke from the roof bolter's wheels with
that from a cigarette. Crediting Mr. sturgill's testimony
logically leads me to the conclusion that somebody was smoking at
the time and place that Mr. Wilson saw Mr. Irvin. There is
nothing in this record to suggest that, if anyone was smoking,
that the person could have been anyone other than Mr. Irvin.
Therefore, I credit the testimony of Wilson and Sturgill and
conclude that Mr. Irvin was smoking underground in violation of
the Act.
The fact that an almost immediate search of Mr. Irvin and
his belongings yielded no evidence of his having smoked or even
having smoking materials is troubling.
While Mr. Wilson and
Mr. Sturgill explained how Mr. Irvin could easily have disposed
of the cigarette {Tr. 18, 36 - 37, 161), one would expect that a
pack of cigarettes or other smoking materials would have been
found.
Nevertheless, the standard of proof to be applied in this
case is whether the Secretary has established a violation of the
Act by the preponderance of the evidence Kenny Richardson 3
FMSHRC 8, 12 n. 7 (January 1981). This means that the
Secretary's evidence, when weighed against that opposing it, must
have more convincing force that it is more likely that Mr. Irvin
was smoking than it is that he was not Hopkins v. Price
Waterhouse, 737 F. Supp. 1202, 1204 n. 3 (O.o.c. 1990). I
conclude that on this record that it was more likely that
Mr. Irvin was smoking underground when observed by
Inspector Wilson on January 26, 1993, than it is that he was not
smoking. 3
3

Reported cases involving citations issued to miners for
smoking underground are extremely rare. I do note, however, that
one is remarkably similar to the instant case MSHA y. Frank J.
Bough, employed by Peabody Coal Company, 2 FMSHRC 1331 (ALJ
June 1980). In that case, the inspector saw a miner smoking but
could find no physical evidence to support his observations
afterwards. As in the instant case, a second inspector also
reported smelling cigarette smoke, although he didn't observe the
cited employee smoking. The citation was affirmed by the
Commission's judge and apparently became a final order.
In deciding this case, I give no weight to the fact that
Mr. Irvin's employer conducted an investigation in which it
concluded that he was smoking {Tr. 69 - 70, 81 - 87). Mr. Irvin
was terminated from his employment as a result of that
investigation. However, this record does not indicate the basis
on which the company reached its conclusions, or what procedural
protections were provided to Mr. Irvin.

36 6

Willfulness
To violate section 317(c) of the Act, the Secretary must
show, not only that a miner was smoking underground, but that he
did so willfully. To establish a willful violation of the no
smoking requirement, the Secretary must establish that Mr. Irvin
knew he was violating the law when he smoked underground, or that
he was indifferent to either the legality of his actions, or the
safety of his fellow miners and himself . Empire-Detroit Steel v .
OSHRC, 579 F. 2d 378, 384-86 (6th Cir. 1975).
I find that the Secretary has established a willful
violation. The preponderance of the evidence establishes that
Mr. Irvin attended a lecture given by Inspector Wilson in which
Wilson discussed the dangers of smoking underground and that
Irvin smoked underground soon after attending that lecture
(Tr. 20-22). I find such conduct constitutes indifference to the
requirements of law and indifference to the safety of himself and
his fellow miners.
Given the\ notice provided to Mr . Irvin regarding the
potentially catastrophic consequences of smoking underground , I
assess the maximum $250 penalty provided for in section ·11o(g) of
the Act.
ORDER
Citation No. 4241505 is affirmed and a $250 penalty is
assessed. Respondent is hereby ordered to pay the assessed
penalty within 30 days of this decision .

~~

Administrative Law Judge

Distribution:
J. Philip Smith, Esq., Office of the Solicitor, U. s. Department
of Labor, 4015 Wilson Blvd., 4th Floor, Arlington, VA 22203
(Certified Mail)
Sidney B. Douglass, Esq., P.
(Certified Mail)

o. Box 839, Harlan, KY 40831

/jf

367

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

~.fEB_1 6 1994

. CIVIL PENALTY PROCEEDING
.: Docket No. KENT 92-1030
.. A.C. No. 15-03178-03722-R
.: Ohio No. 11 Mine
.

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

v.

ISLAND CREEK COAL COMPANY,
Respondent

DECISION
Appearances:

Anne T. Knauff, Esquire, Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Marshall s. Peace, Esquire, Lexington, Kentucky,
for the Respondent.

Before:

Judge Melick

This case is before me upon the petition for assessment
of civil penalty filed by the Secretary of Labor pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. §801 et seg., the "Act," charging the Island
Creek Coal Company (Island Creek) with violations of mandatory
standards. The general issue before me is whether Island Creek
violated the cited standards and, if so, what is the appropriate
civil penalty to be assessed. Additional specific issues are
addressed as noted.
Before and following the hearing the parties moved to
settle Citation Nos. 3548709, 3549133, 3548691 a.n d 3548694 and
Order Nos. 3168531, 3548864 and 3548698 proposing a reduction
in total penalties for the violations charged therein . from
$3,433 to $1,497. In addition, the parties have proposed to
modify Order Nos. 3168531 and 3548864 to citations under
Section 104(a) of the Act and to delete the "significant and
substantial" findings from Citation/Order Nos. 3548709, 3548864,
3549133 and 3548694. 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. An order directing payment of
these penalties will be incorporated in the order accompanying
this decision.

368

Order No. 3548870 is the only charging document remaining
for disposition. The Order was modified at hearing to an order
issued pursuant to Section 104(d)(l) of the Act 1 and alleges a
violation of the mandatory standard at 30 c.F.R. §75.400. It
charges as follows:
Loose coal and fine coal was left along both
ribs of the No. 1 Unit supply road, for approx.
25 X cuts, 1500 feet. The lo~se coal and fine
coal was more prevalent along the left rib. The
coal ranged in depth from 2 inches up to 1 foot in
depth and 18 inches to 36 inches wide. Coal was
pushed up in a left X cut approx. 12 X cuts from
air lock. The coal was 3 feet deep, 6 feet long
and approx. 3 feet wide. The loose coal had been
rock dusted over along the supply entry.
The cited standard, 30 C.F.R. §75.400, provides that
"[c]oal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials,
shall be cleaned up and not be permitted to accumulate in
active workings, or on electrical equipment therein."

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

369

According to Inspector Ted Smith of the Mine Safety and
Health Administration (MSHA), on Auqust 20, 1990, during the
course of an ongoing inspection of the subject mine, he discovered an accumulation of loose ·coal and coal ·dust along the
ribs of the No. 1 Unit supply road. According to smith, the
coal ranged in depth from two inches to 12 inches and was more
prevalent along the left rib. Smith measured the size of the
accumulations at a number of locations with a steel tape. They
were from 18 to 36 inches wide. In addition, coal was found
pushed into a crosscut approximately 12 crosscuts from the air
lock. This coal was three feet deep, six feet long and about
three feet wide. Upon close visual and physical examination
Smith concluded that the material in each accumulation was in
fact coal and coal dust with some mixture of fine clay near the
bottom of each accumulation examined. He concluded, however,
that because the accumulations had been rock-dusted and were
wet the violation was not "significant and substantial." It
was in fact noted on the face of the order that injuries were
"unlikely."
General Mine Foreman Tommy Gatlin acknowledged that there
were two inch to three inch lumps of loose coal mixed with fine
clay along the '·left rib but he believed that the coal came from
rib sloughage. According to Gatlin the material was continually
falling off the ribs. Gatlin further testified that it took
only about one hour to clean up the entire area cited.
The credible testimony of Inspector Smith alone amply
supports a finding of the violation as charged. Moreover,
based on the admissions of Gatlin regarding the presence of
loose coal in the cited area, the existence of the violation
is amply corroborated. The fact that the cited accumulations
had admittedly been rock dusted also tends to corroborate the
evidence that the material beneath consisted of, at the very
least, combustible loose coal.
The Secretary further arques that the violation was the
result of "unwarrantable failure." Unwarrantable failure is
aggravated conduct constituting more than ordinary negligence.
Emerv Mining corp., 9 FMSHRC 1997,·2004 (1987). It is characterized by such conduct as reckless disregard, intentional
misconduct, indifference, or a serious lack of reasonable care.
Bmery, supra, at 2003-04. In this case the Secretary relies in
its findings of "unwarrantable failure" in part on Inspector
Smith's opinion that the cited condition had existed for about
30 days (i.e., from the time the entry was first cut until
cited), and his opinion that the condition was "obvious"
because of its size and height.
While Respondent is clearly chargeable with negligence
in this case to have permitted combustible materials to have

remained in its mine for at least some period of time, I

370

find several factors that mitigate against a finding of the
high level of qross negligence necessary for an "unwarrantable failure" finding. First, it does not appear that the
condition was as "obvious" as alleged by the Secretary. If
the Secretary's theory that the cited condition had existed
for 30 days is accepted, it is evident that the same condition
was overlooked during at least three other inspections
(consisting of six trips past the cited condition) by state
and Federal inspectors.
In addition, it is apparent that confusion regarding
enforcement of the cited standard had been generated by MSHA
inspectors during previous inspections. According to Mine
Foreman Gatlin, MSHA Inspector Wilburn Vaughn told him in 1988
not to clean up rib sloughage and that it would not be cited.
Indeed Gatlin raised this contention underground when Smith
first cited the accumulations at issue. Moreover, Inspector
Smith acknowledged at trial that there were indeed circumstances under which MSHA permitted rib sloughage not to be
cleaned although he maintained that those circumstances did
not exist on the facts of this case. According to Smith only
when the mine roof is high and large chunks of coal have
sloughed off the rib is the exception granted.
The potential for confusion and, in fact, the existence
of confusion resulting from MSHA's enforcement policies has
accordingly arisen. In King l{nob Coal Company. Inc.,
3 FMSHRC 1417, 1422 (1981), the commission held that confusing
or unclear MSHA policies are a factor mitigating operator
negligence. See also Secretary v. American Mine services,
~, 15 FMSHRC 1830 (1993).
Under the circumstances it is
apparent that the confusion engendered by certain unwritten
·..MSHA enforcement policies regarding the cleanup of rib
sloughage mitigates against a finding of aggravated conduct
on the part of Island Creek on the facts of this case.
Finally, there is credible evidence of many possible
sources for the accumulations found in this case, including
rib sloughage and loose material scraped and scoopeq from the
roadway. I do not therefore find that the secretary has met
his burden of proving that the cited accumulations were solely
the result of original mining activity initiated some 30 days
before discovery by the inspector. The undisputed evidence
that other inspections were conducted in the cited area within
the preceding JO days without citation, further suggests that
the accumulations had not existed for such a period.
The Secretary also cited a large number of prior violations
of the same standard at this mine over the preceding two years.
While such evidence might ordinary .. be a factor in evaluating
unwarrantability, under the unique facts of this case, I do not
give that evidence decisive . weight. Considering the above

371

factors I do not find that the Secretary has met his burden of
proving that the violation was the result of "unwarrantable
failure" and accordingly the order herein must fail.

ORDER
Order No. 3548870 is hereby modified to a citation
pursuant to section 104(a) of the Act. The additional
modifications proposed in the settlement agreements are
hereby adopted and Island Creek Coal Company is directed
to pay a civil penalty of $1,897 within 30 days f the date
of this decision.
'

Gary
Admin

Judge

Distribution:
Anne T. Knauff, Esq., Office of the ~olicitor,
u.s. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215 (Certified Mail)
Marshall s. Peace, Attorney at Law, 157 W. Short Street,
P.O. Box 670, Lexington, KY 40568 (Certified Mail)
lh

372

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

FEB 1 6 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
:

Docket No. PENN 93-225
A. C. No. 36-07045-03598

v.
Barbara No. 1
ROXCOAL INCORPORATED,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Hodgdon

This case is before me on a petition for assessment of civil
penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 815(d). A hearing was scheduled
for January 14, 1994, in Somerset, Pennsylvania. However, since
the parties advised me that the case had been settled, the
hearing was held on January 13, in Somerset.
The agreed on settlement provides that Citation No. 3706730
will be modified to delete the "significant and substantial"
designation and the penalty will be reduced from $169.00 to
$50.00, and that the Respondent will pay the proposed penalty of
$189.00 for citation No. 3706729 (Tr. 5-6). Having considered
the representations submitted, I conclude that the proffered
settlement is appropriate under the criteria set forth in Section
llO(i) of the Act, 30 u.s.c. § 820(i).
Accordingly, the settlement is APPROVED, Citation
No. 3706730 is MODIFIED as indicated above and it is ORDERED that
Respondent pay a penalty of $239.00 within 30 days of. this order.
On receipt of payment, this case is DISMISSED.

~~~-

T. Todd~~~
Administrative Law Judge
(703) 756-4570

373

Distribution:
Pamela w. McKee, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, Gateway Building, Rm 14480,
Philadelphia, PA 19104 (Certified Mail)
Joseph A. Yuhas, Esq., 1809 Chestnut Avenue, Barnesboro, PA
15714 (Certified Mail)
John Kosic, Miner Representative, R.D. #1, Box 99, Glenco, PA
15543 (Certified Mail)
/lbk

374

OPPICB OP ADKIBISTRATIVB LAW JUDGBS
2 SKYLIBB, 10th PLOOR
5203 LBBSBURG PiltB
PALLS CHURCH, VIRGIBIA 220C1

FEB 17 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

.: CIVIL PENALTY PROCEEDINGS
: Docket No . CENT 93-103-M
:

A. C. No . 41-03595-05510

... Docket No. CENT 93-104-M
.. A. C. No. 41-03595-05511
Texas Gravel, Inc •
:

. TEXAS GRAVEL INCORPORATED,
Respondent

DECISION APPROVING SBTTLBKBNT
Before:

Judge Weisberger

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). Petitioner has filed a Motion to
approve a settlement agreement and to dismiss the case. A
reduction in penalty from $2,372 to $1,100 is proposed. I have
considered the representations and documentation submitted in
this case, and I conclude that the proffered settlement is
appropriate under the criteria set forth in Section llO(i) of the
Act.
WHBRBPORE, the Motion for Approval of Settlement is GRANTED,
and it is ORDERED that Respondent pay a penalty of $1,100 within
30 days of this order.

a.L
~eisberger

Administrative Law Judge

Distribution:
o. Tanyel Harrison, Esq., Office of the Solicitor, U.S.
Department of Labor, 515 South Griffin street, Suite 501, Dallas,
TX 75202 (Certified Mail)
Toribio "Terry" Palacios, Esq., Garcia, Quintanilla & Palacios,
5528 N. 10th street, McAllen, TX 78504 (Certified Mail)
/lbk

375

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

FEB 1 8 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION on behalf
of ROBERT W. BOELKE,
complainant

v.
SANTA FE PACIFIC GOLD CORP.,
Respondent

..

.
.
.

DISCRIMINATION PROCEEDING
Docket No. WEST 92-243-A-DM
WE MD 91-15
Docket No. WEST 92-545-DM
WE MD 92-28
Rabbit Creek Mine

DECISION
ORDER OJ' DISMISSAL
Appearances:

Gretchen M. Lucken, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia,
for Complainant;
Charles w. Newcom, Esq., Stephen E. Hosford, Esq.,
Sherman & Howard, Denver, Colorado,
for Respondent.

Before:

Judge cetti

These c onsolidated discrimination cases are before me on the
two complaints of discrimination filed by the Secretary on behalf
of Mr. Buelke alleging that he was twice discharged by Santa Fe
Pacific Gold Corporation in retaliation for protected safety
activity in violation of section 105(c) of the Mine Act. Pursuant to notice a hearing on the merits was held before me. Both
parties were represented by very competent counsel. The record
includes over 1,300 pages of' transcript of the testimony of 10
witnesses and over 100 exhibits. Both parties filed comprehensive post-hearing and reply briefs.
Just prior to my reviewing my final draft of my decision on
liability the parties jointly requested a few more days to complete their final effort to resolve all issues and disputes by an
amicable comprehensive settlement of all issues arising out of
the facts concerning the discharges.
Although the document filed by the parties is labeled Joint
Motion to Approve Settlement it appears from its content that it
should properly be construed to be a motion by the Secretary to
376

withdraw the discrimination complaints and to dismiss the cases.
The motion is based upon Mr. Buelke's agreement to settle these
discrimination proceedings, and all other claims against Santa
Fe, including a pending civil lawsuit which is resolved in a
separate settlement agreement, and to waive his right to permanent reinstatement in exchange for payment of a lump sum which
the parties represent fully compensates Mr. Buelke.
I am advised that Mr. Buelke has moved and is presently
working in another state. He agrees to officially resign his
position wit~ Respondent.
Under the terms of the agreement Respondent Santa Fe agrees
to expunge Mr. Buelke's personal records of any reference to
events giving rise to these proceedings and to provide Mr. Buelke
with a letter stating that he is in good standing with Santa Fe
an as employee.
Respondent Santa Fe also agrees to post a notice for 60 days
stating that Santa Fe recognizes the rights of miners to make
safety complaints to mine management or to MSHA, and that miners
who do so will not be punished in any way.
Upon due consideration of this matter I find that the proposed resolution and disposition of these cases is in the public
interest and consistent with the remedial purposes of the Mine
Act. Accordingly the motion to withdraw the discrimination c omplaints and to dismiss the c ases is GRANTED and the abovecaptioned cases are DISMISSED with prejudice.

-

st F. Cetti
inistrative Law Judge

Distribution:
Gretchen M. Lucken, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 2.2203
(Certified Mail)
Mr. · Robert W. Buelke, Unit 33, Box 1, stratus, Winnemucca, NV
89445
(Certified Mail)
Charles W. Newcom, Esq., SHERMAN & HOWARD, 633 17th Street #3000,
Denver, co 80202 (Certified Mail)
sh

3 77

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

"EEB 2 2 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 92-206-M
A.C. No. 13-00203-05521

v.

W. A. SCHEMMER LIMESTONE QUARRY:
INCORPORATED,
:
Respondent

Docket No. CENT 92-255-M
A.C. No. 13-00203-05522

w. A. Schemmer Limestone
Quarry

DECISION
Appearances:

Robert J. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Carman Schemmer, Pro Se, W. A. Schemmer Limestone
Quarry, Incorporated, Logan, Iowa, for Respondent.

Before:

Judge Barbour:

These civil penalty proceedings were initiated by the
Secretary of Labor (Secretary) on behalf of his Mining
Enforcement and Safety Administration (MSHA) against w. A.
Schemmer Limestone Quarry, Incorporated (Schemmer Limestone),
pursuant to Sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977 (Mine Act or Act), 30 u.s.c. §§ 815 and 820.
The Secretary alleges that Schemmer Limestone was responsible for
five violations of mandatory safety standards for metal and
nonmetal mines found in Part 56 of the Code of Federal
Regulations. The proceedings were consolidated and a duly
noticed hearing was convened in Logan, Iowa, at which Robert J.
Murphy represented the Secretary and the company• s pre.s ident,
Carman A. Schemmer, represented Schemmer Limestone.
STIPQLATIONS
At the commencement of the hearing the parties stipulated as
follows:
1. [Schemmer Limestone] is engaged in
mining and selling limestone in the United
States, and its mining operations affect
interstate commerce.

37 8

2. [Schemmer Limestone] is the owner
and operator of W.A. Schemmer Limestone
Quarry Mine, MSHA I.D. No. 13-00203.
3. (Schemmer Limestone] is subject to
the jurisdiction of the [Mine Act].
4. The Administrative Law Judge has
jurisdiction in this matter.
5. The subject citations and orders
were properly served by duly authorized
representatives of the Secretary upon an
agent of Respondent on the date and place
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 •••
authentic but no stipulation is made as to
their relevance or the truth of the matters
asserted therein.
[7.] The operator demonstrated good
faith in abating the violation(s].
[8.] [Schemmer Limestone] is a medium
[sized] mine operator with 28,975 hours of
work in 1991.
[9.] The certified copy of the MSHA
Assessed Violations History accurately
reflects the history of this mine for the two
years prior to the date of the citation.[ 1 ]
Tr. 6-7; Joint Exh. 1.

1

The Secretary offered into evidence an exhibit representing the
company's history of assessed and paid violations for the two years proceeding
the first violation at issue in these matters. It revealed eight assessed and
paid violations during those years, which counsel for the Secretary
characterized as a "low" history. Tr. 8.

379

SBTTL£MENTS
DOCKET NO. CBNT 92-206-M
Citation No.
3886105
3886106

Date
4/7/92
4/7/92

30 C.F.R. S
56.16005
56.16006

Assessment
$506
$506

Settlement
$50
$50

DOCKET NO. CENT 92-255-M
Citation No.
3886107

Date
4/7/92

30 C.F.R. §
56.20003(a)

Assessment
$235

Settlement
$50

Prior to the taking of testimony, counsel for the Secretary
stated the parties agreed to settle the referenced citations.
Counsel noted that Citations No. 3886105 and 3886106 were issued
for Schemmer Limestone's failure to secure properly a compressed
gas cylinder and to protect its valve with a safety cap. counsel
further noted that Citation No. 3886107 was issued for the
company's failure to keep clean and orderly the floor of the
shop. In all three instances the inspector found the violations
were not significant and substantial contributions to mine safety
hazards {S&S violations), and were due to moderate negligence on
Schemmer Limestone's part and were unlikely to cause injuries.
Nonetheless, MSHA's Assessment Office inexplicably proposed civil
penalties far in excess of those usually proposed for violations
with such findings. Counsel stated the settlements reflected the
amounts normally proposed for non-s&s violations caused by
ordinary negligence and presenting little likelihood of injury.
Tr. 9-11.
I approved the settlements on the record and in view of the
inspector's findings, Schemmer Limestone's size and its small
history of previous violations, I hereby affirm that approval.
Tr. 12. I will order payment of the settlement amounts at the
close of this decision.
THE CONTESTS
DOCKET NO. CENT 92-255-M
Order/Citation No.
3885143
3885146

Date
4/7/92
4/7/92

30 C.F.R. §
56.1410l{a) (1)
56.1410l(a) (1)

Assessment
$5,000
$5,000

Section 56.14101(a) (1) requires self-propelled mobile .
equipment to be "equipped with a service brake system capable of
holding the equipment with its typical load on the maximum grade
that it travels." The section 107(a), 30 u.s.c. S817(a), orders
of withdrawal and associated section 104(a), 30 u.s.c. S 814(a),
citations were issued during an inspection of the quarry when
MSHA Inspector Ken Harris found two haulage trucks whose service

380

brakes were not capable of holding the equipment with their
typical loads on the maximum grades they traveled. Indeed, the
brakes were not capable of stopping or holding the trucks if
empty on level ground. Harris also found the alleged violations
S&S and were caused by high negligence on the company's part and
were highly likely to cause fatalities. In its answer and again
at the hearing, Schemmer Limestone did not deny that the
conditions of the brakes constituted violations of the cited
standards, but rather noted the violations were corrected
immediately and argued the financial distress of the company
warranted reduced civil penalties. Tr. 13.
THE SECRETARY'S WXTNESS

Ken Barris
Harris, a MSHA inspector assigned to the Fort Dodge, Iowa,
field office was the Secretary's sole witness. On April 7, 1992,
Harris conducted an inspection of Schemmer Limestone's surface
quarry facility located in Harrison County, Iowa. Harris was
accompanied by MSHA Inspector Clarence Thilen. Tr. 17.
Harris stated that at the quarry stockpile· he and Thilen
observed two trucks that were used to haul limestone from the
quarry pit to the stockpile. Not one of the brakes on the trucks
worked, including the emergency brakes. Harris stated that in
order to drive down into the quarry pit the trucks had to descend
for 275 feet on a grade of 5 to 8 percent. In addition, they had
to negotiate a switchback at the bottom of the descent. There
was no runaway ramp at the bottom of the grade and if a truck had
gone out of control the only way for it to stop would have been
to hit the quarry wall. Tr . 19. In addition, each truck hauled
approximately 15 tons of rock when fully loaded. If either
stalled on the grade on the way out of the pit there would have
been no way to prevent it from rolling back into the wall except
to try to downshift, and Harris stated he later discovered that
both trucks had bad clutches. Tr. 20.
Because of the lack of functioning brakes and the route and
grade the trucks had to travel, Harris believed an accident was
reasonably likely. Tr. 22. Further, he believed if either one
of the trucks hit the quarry highwall its driver would have been
severely injured or killed. Tr. 21-22, 30.
Harris issued orders and citations for both conditions. The
brakes of the first cited truck were repaired in less than 24
hours. The . brakes of the second were repaired two days later.
Tr. 23-24.

381

SCBIMMER LIMESTONE'S WITNESS

Carman ScbeJDDler
The company's sole witness was its president and
representative, Carman Schemmer. Schemmer agreed the trucks'
brakes did not function -- "[t]he brakes were not operable, plain
and simple." Tr. 35. In abating the violation it was discovered
that one of the trucks simply needed to have its brakes adjusted,
while the other one needed to have fluid added and a brake
diaphragm repaired. Tr. 36.
Schemmer maintained the negligence, if any, was his. He
inf erred he could not rely on company personnel to make the kinds
of repairs necessary to keep the trucks safe. ("Even though I
have people working for me and I may instruct them to do certain
things, if I don't follow up it doesn't get done." Tr. 37.)
Schemmer testified that since the issuance of the orders and
citations he.- has changed procedures at the quarry so that he is
solely responsible for safety. Under the new procedures he
questions the employees about the condition of specific pieces of
equipment and if . the employees have safety complaints,
corrections are made at once. Tr. 38, 58-59.
Turning to the fiscal condition of the company, Schemmer
produced a copy of a company financial statement. The statement,
dated October s, 1992, reflects the company's balance sheet as of
June 30, 1992. Resp. Exh. 1. Schemmer testified the company's
fiscal year always ends on June 30, and that he could not have a
statement for 1993 ready in time for the hearing. He noted,
however, that in 1992, the company showed a retained earnings
balance of $128,000 and he stated that 1993 had been a worse year
than 1992. Tr. 40, Resp. Exh. l at 5. Schemmer also stated that
the company had considerable liabilities, chief among them being
notes payable in the amount of $451,448 to the First National
Bank of Missouri Valley. Schemmer was uncertain if the bank
would renew the notes. Tr. 42, 44; Resp. Exh. l at 3.
on cross examination, Schemmer was asked about the. statement
of the CPA who prepared the financial report and who wrote in a
cover letter to the report:
Management has elected to omit substantially
all of the disclosures required by generally
accepted accounting principles. If the
omitted disclosures were included in the
financial statements, they might influence
the user's conclusions about the Company's
financial position, results of operations and
cash flows. Accordingly, these financial
statements are not designed for those who are
not informed about such matters.

382

Resp. Exh. 1. Schemmer explained that he understood the
statement to be a standard one included by CPA firms in all
financial statements and that Schemmer Limestone had not failed
to give its accountant all information necessary for a complete
accounting. Tr . 43.
Schemmer confirmed that Schemmer Limestone is a corporation .
The stockholders include Schemmer, his father, and his wife.
Tr. 59. Schemmer is paid $850 per week. Tr. 44. The company
employs approximately 13 persons at the quarry. Tr. 60. The
company has limestone reserves of approximately 1,500,000 tons.
If the area it is leasing currently were mined totally the area
would yield l,Ooo,ooo tons. Tr. 49-50. The average price of
limestone is $6 per ton and it is mostly sold to county highway
dep·a rtments for road surfacing. Tr. 50.
Schemmer also offered into evidence a copy of the
corporation's tax return for 1991, which showed a loss of
$606,572, as well as an accountant's statement for the first
quarter of 1993, which showed a net loss of $41,612.
Resp. Exh. 2 a~d 3.
\

DISCUSSION

The Violations
There is no disagreement about the facts. It is agreed that
the trucks were used at the quarry to haul rock from the pit to
the stockpile . As such, I find that both trucks had to travel in
and out of the pit, descending and ascending a road approximately
278 feet long and with a grade of approximately 5 percent to 8
percent. I credit the Inspector's unrefuted testimony that near
the bottom of the road the trucks had to negotiate a switchback
and that a highwall was at the bottom of the road. I further
credit his testimony that when loaded the trucks each carried up
to 15 tons of rock.
It is further agreed that both trucks did not have
functioning brakes. Harris feared if the drivers lost control of
the trucks either on entering or exiting the pit, the : trucks
would roll down the grade and crash into the highwall, killing or
severely injuring their drivers. This was not an unreasonable
fear given the grade, and the position of the highwall and the
total inability of the trucks to slow except by downshifting.
Obviously, the braking system of the trucks was not capable
of holding them with their typical load on the maximum grade they
traveled and I conclude the violations existed as charged .

38 3

I also conclude that Harris properly found the violations to
be S&S. As is now well known, a violation is properly desiqned
S&S if based upon the particular facts surroundinq it 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 set forth a four-part formula for
determininq whether a particular violation meets the National
Gypsum definition of S&S. In the instance of both of the
violations at issue here the formula has been satisfied.
As I have found, the violations existed. They posed the
hazard of a serious, even fatal crash. Given the constant use of
the road into and out of the pit, the qrade of the road, t~e
position of the hiqhwall and the lack of any breakinq system, it
was reasonably likely such a crash would have occurred had mininq
operations continued.
·
CIVIL PENALTY CRITERIA

Gravity and Negligence
Further, · in view of the gravity of the injury that could
have been expected an~ the likelihood of the injury occurring, I
conclude the violations were very serious.
In addition, the operator was highly negligent. I infer
from Schemmer's testimony that prior to the citation of the
violations no effective procedure existed at the quarry to ensure
mobile equipment complied with the mandatory standards.
Schemmer's description of the company's inspection and reporting
procedures initiated post-violation confirmed as much.
Previous Violations, Size and Rapid Abatement
MSHA's ·computer generated history of previous violations
indicates that in the 24 months prior to citation of the
violations in question a total of eight violations were assessed
for the quarry. As counsel agrees, this is a small history of
previous violations. It should not increase any civil penalties
otherwise assessed. Joint. Exh. 1. The parties have stipulated
that Schemmer Limestone is a medium size operator. Also, they .
have stipulated that the company demonstrated qood faith in
attempting to achieve rapid compliance after being cited for the
violations. Stipulations 7-8.
However, there is more than the stipulation to be noted
about Schemmer Limestone's qood faith in achievinq rapid
compliance, for I credit Schemmer's testimony that the company

384

went further than simply abating the violations at issue.
Following issuance of the citations and orders Schemmer
instituted a new system for checking equipment to lllake certain
there was compliance with the mandatory standards and Schemmer
assumed personal responsibility for safety at the quarry. Under
this new system, Schemmer questions his employees about the
condition of equipment and whether it is safe. He personally
orders defects repaired and he makes certain the repairs are
made. I admire Schemmer's candid willingness to assume
responsibility for past mistakes, but I am even more impressed by
his initiatives to prevent their recurrence. His positive
attitude toward compliance is one that should be encouraged.
A))ility To Continue In Business
The effect of assessed penalties on the ability of the
operator to continue in business is a matter to be proved by the
operator. Considering both Schemmer's testimony and the
documents the company offered into evidence, I conclude that full
imposition of the proposed penalties will adversely effect
Schemmer Limestone's ongoing operations . Both the company's
income tax return for the last year available and the company's
financial statement for the same year reveal a company in
potentially precarious fiscal straits. While it is true the
company has significant limestone reserves upon which to rely, it
must have available adequate financial resources to continue in
the industry. To a large extent its financial resources are
dependent upon the status of its short term obligations. In this
regard, I observe that the company's notes to First National Bank
of Missouri Valley are subject to call on a yearly basis despite
the company's efforts to negotiate longer terms . There is no
question if they are called, the company will find it difficult
if not impossible to survive . Although the company is not yet on
the financial ropes, its large negative ratio of current
liabilities to current assents signals that the pecuniary ice
upon which it skates is thin indeed. In such a situation, every
added liability is important.
CIVIL PENALTIES
While I recognize that both violations of section
56.14101(a) (1) were very serious and the result of high
negligence on the company's part, I believe that the company's
financial condition and Schemmer•s post-violation attitude toward
safety and compliance fully warrant a reduction in the penalties
proposed by the Secretary. I therefore assess a civil penalty of
$1,000 for each violation and, as ordered below, . I permit
Schemmer Limestone to pay the assessments on a structured basis.
I make the assessment in the expectation that Schemmer Limestone
and its president will persevere in their determination to assure
safe working conditions for all miners in their employ.

385

ORJ)IR
Schemmer Limestone is ORDERED to pay a civil penalties of
$50 each for the violation of section 56.16005 cited in Citation
No. 3886105, 4/7/92, the violation of section 56.16006 cited in
citation No. 3886106, 4/7/92, and the violation of 56.20003(a)
cited in Citation No. 3886107, 4/7/92. The penalties shall be
paid within thirty (30) days of the date of this decision.
Schemmer Limestone IS ORDERED also to pay a civil penalty of
$1,000 for the violation of section 56.14101(a) (1) cited in
Order/Citation No. 3885143, 4/7 /92 and a civil penalty of $1,000
for the violation of section 56.14101(a) (1) cited in
Order/Citation No. 3885146, 4/7/92. Payment shall be made to
MSHA in quarterly installments as follows:
1 . $500 due and payable on or before April 1, 1994;
2. $500 due and payable on or before July 1, 1994;
3. $500 due and payable on or before October 1, 1994;
4. $500 due and payable on or before January 1, 1995.
Upon receipt of· full payment this proceeding is DISMISSED.

,·-) .-/.'. £' ·/

/ >

,_!/vi--<4 · /;.-o{)it--i{;;~

David F. Barbour ·
Administrative Law Judge

Distribution:
Robert J. Murphy, Esq., Office of the Solicitor,
U. S. Department of Labor, 1585 Federal Office Building,
1961 Stout Street, Denver, co 80294 (Certified Mail)

Mr. Carman A. Schemmer, w. A. Schemmer Limestone Quarry, Inc.,
Box 127, Logan, IA 51546 (Certified Mail)
/epy

38 6

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

~FEB 2 2 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

..
.

v.

HUNTINGTON PIPING
INCORPORATED,
Respondent

Docket No. WEVA 93-57
A.C . No . 46-01602-03502
Mine: Kermit Coal Company
Mine No. 1

..
DECISION

Appearances:

Heather Bupp-Habuda, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia for Petitioner;
S.M. Hood, President, Huntington Piping,
Incorporated, for Respondent.

Before:

Judge Barbour

In this proceeding, arising under Sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §§ 815
and 820, the Secretary of Labor (Secretary) on behalf of his Mine
Safety and Health Administration (MSHA) petitions for the
assessment of civil penalties against Huntington Piping,
Incorporated (Huntington), for two alleged violations of certain
mandatory safety standards for surface coal mines found at
3 o C. F·. R. Part 7 7 • In addition, the Secretary asserts the
violations were significant and substantial contributions to mine
safety hazards (S&S violations) and were the result of
Huntington's unwarrantable failure to comply with the cited
standards. The proceeding was the subject of an evidentiary
hearing in Huntington, West Virginia, at which Heather
Bupp-Habuda represented as counsel for the Secretary and S . M.
Hood, president of Huntington, represented the company.
STIPULATIONS

At the commencement of the hearing, counsel for the
Secretary read into the record the following stipulatiQns:
1. The Administrative Law Judge and the
Federal Mine Safety and Health Review
Commission have jurisdiction to hear and
decide [this] penalty proceeding • • ••

387

2. Huntington •.• is not the owner or
operator of Mine No. 1 which [was] operated
by the Kermit Coal Company at the time the
(c]itation [and] [o]rder at issue in this
case [were] written.
3. Huntington ••• is an independent
contractor pursuant to [Section] 3[d],
(30 u.s.c. S 802(d)] of the Mine Act.
4. The actions of Huntington .•. on
August 4, 1992 at .•• Mine No. 1 are subject
to the jurisdiction of the Mine Act.
5. Huntington ••• may be considered a
small [,] independent contractor· as defined
by 30 C.F.R. [ §] 100.3(b), Table Five, as the
number of hours worked at all mines per year
(was) 2,158.
6.

[MSHA] Inspector Billy R. Sloan was
an official capacity as an
authorized representative of the Secretary
••. when he issued Order [No.] 3729920 and
Citation [No.) 3725795.
actinef~ in

7. MSHA Inspector Birkie Allen was
acting in his official capacity as an
authorized representative of the Secretary
when he issued Citation [No.) 3729927.
8. True copies of Order [No.] 3729920
and Citation [Nos.] 3729927 and 3725795 were
served on Huntington .•• [as] required by
[the] Mine Act.
9. Order [No.) 3729920, marked [Gov.
Exh. 1), is authentic and needs to be
admitted into evidence for the purpose of
establishing its issuance and not for the
purpose of establishing the accuracy of any
statements therein.
10. citation [No.] 3729927, marked
(Gov. Exh. 2], is authentic and may be
admitted into evidence for (the] purpose of
establishing the issuance and not ••• the
accuracy of any statements therein.
11. Huntington ••• abated Citation (No]
3729227 and Order (No.] 3729920 in a timely
manner.

388

12. citation (No.] 3725759, marked
[Gov. Exh. No. 4], is authentic and may be
admitted into evidence for the purpose of
establishing its issuance and not ••• the
accuracy of any statements asserted therein.
13. The only issues before the
[Administrative Law Judge] are(:] (A] whether
the condition described in the body of Order
(No.] 3729920 .•• is accurate and
constitute[d] a violation of ••• (s]ection
75.205(a); •.• [BJ whe[ther] the conditions
described in the body of Citation [No.]
3729927 ••. (are] accurate and constituted a
a violation of ••. (s]ection 77.1710(g); •••
[C] what degree of gravity is associated with
the (alleged] violations found in the abovereferenced (o]rder [and] ••• [c]itation,
including whether the (alleged] violations
were [S&S); •.• [D] what degree of negligence
is associated with the violations found the
••• · (o]rder and the [citation]; • . • [E]
whether the (alleged] violation in Order
[No.] 3729920 was the result of an
unwarrantable failure by ••. [Huntington] and
the amount of civil penalties for the [o]rder
and [c]itation.
14. MSHA's proposed assessment data
sheet, marked [Gov. Exh. 7] accurately sets
forth three as the number of assessed •••
violations charged to Huntington ••• from the
period January 1989 through May 1992 .
~,

15. MSHA's narrative findings for
assessment, marked [Gov. Exh. 8 ] set forth
(the] formula pursuant to 30 C.F.R. [§]
100;5, for assessing the proposed penalties
for Order (NO.] 3729920 and Citation [No.]
3729927 • .
16. MSHA's assessed violations history
report: and R-17, marked [Gov. Exh. 9], may be
used in determining the appropriate civil
penalty assessments for the alleged
violations.
Tr. 7-12.

389

RELEVANT TESTIMONY
THE SECRITABY'S WITNESSES
Birkie Allen
Birkie Allen, a MSHA inspector for the past 23 years,
inspects construction sites at coal mines. on August 4, 1992,
Allen, along with MSHA inspector Billie Sloan, conducted such an
inspection at the No. 1 Mi ne of Kermit Coal Company, an
underground coal mine located in Mingo country, West Virginia.
Huntington was constructing a bathhouse at the mine.
At approximately 9:00 a.m., Allen and Sloan parked their car
facing the bathhouse and as they looked through the windshield
observed Fred Crockett, Huntington's project foreman, and Kenny
Walters and Jimmy Bantam, two Huntington employees under
Crockett's supervision, on the bathhouse roof. Tr. 20, 53, 64.
Allen estimated he and Sloan were from 50 feet to 75 feet away
from the employees. Tr. 21.53. Crockett and the other men were
on the right side of the roof as the inspectors faced the
building. All were within 6 to 8 feet of one another. They were
about 3 feet from the edge of the roof. Tr. 24-25, 48.
The men were in the process of installing metal roofing on
the steel frame of the bathhouse. Allen testified he could see
that none of the employees was wearing a safety belt. Tr. 20-21.
When the men saw the government car in which the inspectors
were riding they scrambled down from the roof. Crockett climbed
down an I beam on the front side of the building. Tr. 22.
Walters and Bantam came down in back of the building, out of the
inspectors' sight. Tr. 21.
Allen and Sloan got out of the car, spoke with Crockett and
walked around the bathhouse. They did not notice a ladder or
other device for gaining access to the roof. They assumed,
therefore, the two employees that they could not see getting down
from the roof had come down on I beams. Tr. 23.
Allen maintained that once down from the roof, Walters and
Bantum put on their safety belts. Tr. 55. Crockett did not put
on his safety belt. Id.
Allen identified a drawing he made of the bathhouse.
Gov. Exh. 10. He testified that he and Sloan measured the
bathhouse with a 50 foot tape and determined that on the side of
the building where the men had been working the roof line started
21 feet 7 3/8 inches above the ground. Tr. 24; Gov. Exh. 10.
The peak of the roof was 23 feet 9 inches above the bathhouse
floor. Id. (Huntington's representative stated that Huntington
agreed the distance was "somewhere around 20 feet." Tr. 32.)

390

According to Allen, he and Sloan orally issued the subject
citation and order of withdrawal to Crockett. Tr! 21. They also
asked Crockett to convene a meeting of all of the employees.
At the meeting, Allen and Sloan discussed the hazards of working
without safety belts and lines and reviewed with the employees a
memorandum issued by MSHA on August 14, 1978, regarding the
requirements of section 77.1710(g), the mandatory safety standard
requiring the wearing of safety belts and lines where there is
a danger of falling. Tr. 38; Gov. Exh. 5. Allen stated
Crockett had been given a copy of the memorandum on May 28, 1992,
during an inspection, when Sloan had issued a previous citation
to Huntington for a violation of section 77.1710(g).
Tr. 40, 50, 52.
Allen believed that if Crockett or one of the other
employees had suffered a muscle cramp or a dizzy spell or had
slipped, he could have fallen from the roof and been fatally
injured. Tr. 43. The men were not working close enough to grab
one another, so it was most likely that only one would .have
fallen. Tr. 48.
Allen believed further that the violation was the result of
unwarrantable failure on Huntington's part because Crockett was
involved, and Crockett was on notice regarding the need for
safety belts and lines. Tr. 49. According to Allen, Crockett
explained the lack of safety belts and lines by stating it was
"just a stupid mistake." Tr. 52. Allen agreed, however, that
Huntington was not habitually unsafe or habitually in violation
of the mandatory standards and he stated that he continued to
have a good working relationship with Crockett. Tr. 58.
Billy R. Sloan
Sloan, who also is a MSHA inspector, testified that on
May 28, 1992, he conducted an inspection of another Huntington
construction project at Mine No. 1. During that inspection he
observed an employee walking on a metal beam about 30 feet above
the ground. While he was walking on the beam the employee was
"snapping and unsnapping his safety belt." Tr. 71. Sloan
stated, "any time ••• (persons] are moving from one place to
another and they have any kind of an obstacle in their path if
they're not using two lanyards then they unsnap." Tr. 101.
Thus, Sloan believed that although the person had on a safety
belt and lines, he was not using them properly because at times
the lines were unattached. Tr. 102, 107. As a result,
Sloan served Crockett with a citation for a violation of
section 77.1710(g) • .I!L,., Gov. Exh. 4. To abate the citation,
Sloan discussed with Crockett and the employees, under
Crockett's supervision, MSHA's policy regarding the use of
safety belts. In addition, he gave Crockett a copy of the
MSHA memorandum regarding section 77.1710(g). Tr. 72.

391

Turning to August 4, 1992, Sloan stated that even though
there was a manlift in the bathhouse that could have been used
to get the men down from the roof, Crockett, Walters and Bantam
reached the ground by descending on the I beams. Tr. 76, 81.
He speculated the men came down because they recognized him
and Allen as inspectors. Tr. 77. He explained that
section 77.205(a) requires a safe means of access to be
provided to all work areas and that climbing down on the frame
of the building subjected the men to the danger of falling to
the concrete floor of the building or to the surrounding ground.
Tr. 86. He considered it highly likely that a fall would have
resulted in an injury. Id.
Because Crockett was one of the persons who had climbed down
and in so doing had violated the regulation, Sloan believed there
was "high" negligence on Huntington's part. Tr. 88.
JIUNTINGTON'S WITlflSS
Pred Crockett
Crockett wa·s asked about the August 4 incident and he
admitted that he . was not wearing a safety belt. He stated,
however, he believed Walters and Bantam were wearing such belts,
but he agreed that they were not using them, they were not tied
off. Tr. 123. Crockett explained that on August 4, 1992, he and
the men were putting steel sheets over the building's structure
in order to finish the roof. The sheets were 38 inches wide and
30 to 31 feet long. Tr. 124. The area being roofed was
advancing across steel roof support beams. The area ahead of the
sheets was open to the floor, but Crockett maintained that
workers did not approach the open area and always laid the
sheets of metal ahead of them. Tr. 147-148, 155. (On
cross-examination, however, he agreed that when a sheet of steel
was laid, those doing the task stood "close to the edge."
Tr. 158.) The slope of the roof was 2 inches per foot. Tr. 149.
Crockett stated that safety belts were not used because he
did not think they were required. Tr. 125, 127. Use of the belts
would have resulted in the lanyard trailing behind and would have
created a tripping hazard. Tr. 126. However, since receiving the
citation Crockett stated he had come to believe that failure to
use safety belts under the subject circumstances "definitely
[was] a violation." Id.
When asked why he and Walters and Bantam had hurried off the
roof when they saw the inspectors, Crockett responded that
"everybody on the job .•• [ is] scared of the federal inspectors."
Tr. 127. He also stated that he told Walters and Bantam to get
off of the roof because he was nervous about having the
inspectors visit the site. Tr. 127-128. As for himself, he
admitted, "I did come down wrong." Tr. 138.

392

Crockett testified he and the employees reached the roof by
going up in the manlift and they planned to use it to come down ·
but they had "panicked" when they saw the inspectors.
Tr. 128-129, 131.
He stated that after the May 28 citation he was present at
a meeting with the MSHA inspectors who explained how and when to
wear safety belts and lines so as to comply with the requlations.
Tr. 151. He also was told by his supervisor he should make
certain all employees wore safety belts in similar situations and
that he had done so, except on August 4. Tr. 145.
Following the incident of Auqust 4, he was told by mine
management that he was wrong, that safety belts and lines, as
well as a safe means of access, should have been used, but he was
not disciplined. Tr. 137.
DISCUSSION AND FINDINGS

CITATION NO.
3729927

DATE
8/4/92

30 C.F.R. §
77.1710(g)

PROPOSED PENALTY
$300

TBE VIOLATION

Citation No. 3729927 states:
A foreman and two workmen were observed
working on top of the bathhouse being
constructed without being pr9tected from a
fall of about 20 feet. The equipment and
materials to stay tied off were present on
the job site.
The foreman was Fred Crockett and the
workmen were Kenny Walters and Jimmy Bantam.
Gov. Exh. 2. Section 77.1710(g) requires in pertinent part that
"Each employee working in a surface mine ••• shall be required to
wear protective ••• devices [including] [s]afety belts and lines .
where there is danger of falling."
All of the witnesses agree that Crockett, Walters and Bantam
were working on the roof of the bathhouse when they were observed
by Sloan and Allen. Further, there is no real disagreement about
the distance from the edge of the roof to the ground being
approximately 20 feet. Also, it is agreed that Crockett was not
wearing a safety belt or lifeline and that if Walters and Bantam
were wearing safety belts, they were not tied off.
Thus, the question is whether there was a danger of falling,
and I conclude there was. Admittedly, the roof had but a slight
slope to it. Nonetheless, I infer from the testimony that laying

393

the steel plates over the beams supporting the roof required
Crockett, Walters and Bantum not only to occasionally
be near the side edge of the roof, but as the roof advanced, to
also be near the edge of the plates already laid. In particular,
I note Crockett's testimony that this part of the job required
the workers to stand "close· to the edge." Tr. 158.
A number of things, including a slip, stumble or a simple
inattentive misstep, could have caused any one of the three to
lose his balance. Had this happened at the roof's side edge or
at the edge of the plates there was nothing to have prevented
Crockett, Walters or Bantum falling to the rock or concrete
below. Therefore, I find that on August 4, 1992, the three men
were in danger of falling and their failure to wear and use
saf°ety belts and lines violated the standard.

The test set forth by the Commission in Mathies Coal co. for
determining whether a violation is S&S is by now well known:
In orqer to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum (3 FMSHRC
822, 825 (April 1981), the Secretary ••• must
prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete
safety hazard -- that is, a measure of danger
to safety -- contributed to by the violation;
(3) a reasonable likelihood that the hazard
contributed to will result in an injury; and
(4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
6 FMSHRC 1, 3-4 (January 1984). I have concluded the violation
of mandatory safety standard 77.1710(g) existed as charged.
Moreover, the evidence establishes a discrete safety hazard
contributed to by the violation in that there was a possibility
of one or more of the three employees falling a distance of
approximately 20 feet to the hard surfaces below the roof. Any
such fall could have caused a serious injury or death.
The remaining question is whether the secretary established
the reasonable likelihood of a fall. In other words, if normal
rooting operations had continued, would there have been a
reasonable likelihood of "an event in which there (would have
been] an injury?" U.S. Steel Mining Co., 6 FMSHRC 1834, 1864
(Auqust 1984).
I conclude, the answer is yes. I recognize that the day the
violation was cited the circumstances were not unduly conducive

394

to one of the employees stumbling or tripping and falling from
the roof. It was not windy and the roof was dry. Nonetheless, I
must view the violation in the context of continued. normal
roofing operations and certainly, in that regard, I must consider
the effects of sudden and unexpected wind gusts and/or rain, both
of which would increase the likelihood of a . fall. I do not doubt,
as Huntington maintains, that it is a fundamental construction
practice never to lay sheet steel on a breezy day, but I also
recognize that weather conditions are not fully predictable and
are subject to sudden and unexpected change. I conclude that
sooner or later an employee would have slipped on a wet and slick
roof, lost his or her balance due to the wind or taken a misstep
and that the result would have been a disabling or fatal fall.
· Moreover, I take judicial notice of the recent report of
the National Institute for Occupational Safety and Health
that 26 percent of all construction deaths are fall-related.
23 O.S.H. Rep. (BNA) 216 (July 28, 1993). Obviously, full
compliance with section 77.1710(g) will go far to eliminate the
cause of such deaths in the mining industry.
Given the fact that in the context of continued normal
construction an errant slip, stumble or misstep was almost bound
to occur at some time and given the statistical prevalence of
falls as a cause of death, I cannot help but find the failure of
Huntington's three employees to wear safety belts and/or use of
safety lines made it reasonably likely a serious injury or
fatality would have resulted and therefore that Allen properly
found the violation to be s&s.
QNWARRANTABLE FAILURE
The Commission has held that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence by
a mine operator in relation to a violation of the Act. Emery
Mining corp., 9 FMSHRC 1997, December 1987); Youghiogheny & Ohio
Coal co., 9 FMSHRC 2007 (December 1987). The Commission has
explained that this determination is derived, in part, from the
ordinary meaning of the term "unwarrantable failure" ("not
justifiable" or "inexcusable"), "failure" ("neglect of an
assigned, expected or appropriate action"), and "negl·igence"
("the failure to use such care as a reasonably prudent, careful
person would use, characterized by 'inadvertence,'
'thoughtlessness,' and 'inattention'"). Eastern Associated Coal
Corporation, 13 FMSHRC 178, 185 (February 1991), citing Emery,
9 FMSHRC at 2001.
I conclude the violation was the result of conduct that was
not justifiable or inexcusable and was properly found by Allen to
have been caused by Huntington's unwarrantable failure to comply.
The violation not only occurred in the presence of the foreman,
he participated in it. A foreman is held to a high standard of

395

care. It is the foreman who gives on-site direction to the
workforce. It is the foreman's duty to assure compliance with
mandatory safety standards and his is the initial responsibility
for safety. Any breach of his duty is attributable to the
operator.
While situations may exist in which a foreman and miners
under his direction violate a standard and the foreman's conduct
is justifiable or excusable, this is not one. I credit Allen's
and Sloan's testimony, and indeed Crockett's corroborating
testimony, that the use of safety belts and lines was discussed
with the foreman on May 28, 1992.
Further, I find that the MSHA
Memorandum of August 14, 1978, regarding the use of safety belts
and lines at all times where there is a danger of falling, was
brought to Crockett's attention. While Crockett, by virtue of
his position already was on notice of the requirements of the
standard, these events should have reinforced in his mind the
necessity for its observance.
It may be true, as Crockett maintains, that because the May
citation concerned a miner working on an elevated steel structure
Crockett did not \ think the standard applicable to miners working
on a relatively flat roof, but if such was his interpretation of
the standard, it was woefully inadequate. As the MSHA memorandum
makes clear, the standard applies where there is a danger of
falling and Crockett and the others were working under that very
condition. Allen testified that Crockett stated the failure to
wear safety belts and lines was "just a stupid mistake." Tr. 58.
It also was an unwarrantable failure to comply.
Order No.
3729920

Date
8/4/92

30 C.F.R. §
77.205(a)

Proposed Penalty
$300

THE VIOLATION
Order No. 3729920 states:
Safe means of access to the roof top of
the new building being constructed at ·the
shaft site was not provided for the two
workers and foreman observed working about 20
feet off the ground. These workers were
observed climbing on and around the support
beams to get to the work area.

396

The necessary equipment and materials
needed to provide safe access were on the job
site but were not being used when this
condition was observed.
Foreman - Fred Crockett
Workers - Kenny Walters, Jimmy Bantam
Gov. Exh. 1. Section 77.205(a) states: "Safe means of access
shall be provided and maintained to all working places."
Despite the fact that the citation states that the workers
were observed climbing on and around the support beams to get to
the work area, the testimony makes clear that if there was a
violation it consisted of the lack of a safe means to leave the
work area, for I fully credit Crockett's testimony that the
manlift was used by the men to reach the roof. While Sloan could
have been more precise in describing the alleged violation,
there is no doubt that Huntington understood the allegation
underlying the order. All witnesses agreed that Crockett and the
employees hurriedly left the roof by climbing down the steel I
beams of the building upon seeing the inspectors and Huntington
at no time expressed objection or surprise at MSHA's assertion
that their exit from the roof violated section 77.205(a).
While the standard is written in terms of access, which
connotes a way by which a work area may be approached or reached,
to be effectively implemented, the standard also must be
interpreted to include the way by which the work area is left.
Thus, the issue is whether .use of the I beams was safe, and I
agree with Sloan that it was not. The beams did not contain hand
or toe holes and, as Sloan testified, climbing down on the metal
framework in itself created the hazard of a fall to the floor or
ground below. Tr. 86. The manlift had provided a safe means of
access to the roof. In failing to maintain the manlift in a
position where it could have been used and in failing to provide
other safe means to leave the roof, Huntington violated section
77.205(a).

I further conclude that Sloan properly found the violation
to be S&S. The evidence supports the Mathies criteria in that
there was a violation of a mandatory safety standard which
greatly contributed to the danger of one or more of the three .
employees falling from heights of up to 20 feet to the concrete
floor of the unfinished building or to the rock surrounding it.
Had such a fall occurred there was a reasonable likelihood the
resulting injuries would have been serious, indeed, even fatal.
In addition, in the context of continued mining operations it was
reasonably likely such a fall or falls would have occurred. As I
have noted, there were no hand or toe holes on the beams and the

397

very reason such beams are not acceptable as a means of access is
because they are conducive to falls. It is just common sense.
Further, as referenced above, I again note the prominence of
falls as a cause of death in the construction industry.
UNWAR.RANTMLE PAILORE

I also conclude that Sloan was correct in citing Huntington
for an unwarrantable violation. Crockett was on the scene. The
manlift was in the unfinished building. As I have observed,
Crockett was responsible for assuring compliance with all
applicable safety standards and his lapses in this regard are
attributable to Huntington. Crockett told the employees to get
off the roof when he knew their only way to coming down was via
the beams. Tr. 127. (The manlift was in a folded position and
was not ready for use.) His "excuse" that "everyone on the job
(is) scared of the federal inspectors" is no excuse. If true, it
indicates a dangerous failure of communication at the mine. It
certainly does not warrant putting in danger himself and others
for whom he is responsible. The violation of section 77.205(a),
like the violation of section 77.1710(g), was not justifiable.
OTHER CIYIL PENALTY CRITERIA

Gravity and Negligence
The potential injuries to miners that could have resulted
from falls off of the roof or the beams and the likelihood of the
falls occurring made both violations serious.
Crockett's failure to use the care required of him as
foreman to assurance he and his men complied with the cited
standards was negligence on his part and thus on that of his
employer, Huntington.

AJ:>atement, Size, Ability to continue in Business
The parties have stipulated that Huntington abated the
citation and order in a timely manner and I therefore find that
Huntington exhibited good faith in abatement. Stipulation 11.
They have further stipulated that Huntington is a small,·
independent contractor with a small history of previous
violations. Stipulations 5 and 14. Finally, the record lacks
any evidence to indicate that the assessment of civil penalties
for the violations will have an effect on Huntington's ability to
continue in business and I find they will not.

398

CIVIL PINALTY ASSISSMIN'l'S

The Secretary has proposed civil penalties which I conclude
are appropriate. I therefore assess a civil penalty of $300 for
the violation of section 77.1710(g) and a civil penalty of $300
for the violation of section 77.205(a).
I will add that while I have found the violations to have
been caused by Crockett's unwarrantable failure to ensure
compliance with the cited standards, I do not believe he sought
deliberately to act and to have the other miners act in defiance
of the law. Rather, the violations represent Crockett's
impulsive and unthinking disregard of his and his mens' safety.
Allen emphasized that he has a good working relationship with
Crockett and that Huntington is not an habitually unsafe employer
or in repeated violation of the standards, as the company's
history of previous violations establishes. Crockett must be
more mindful of his responsibilities as a person on the front
line of safety and of his obligation under the Mine Act to ensure
compliance with the regulations both by his man and by himself.
The assessments, which are approximately three times larger than
the highest penalty assessed previously for Huntington, are
imposed with that goal in mind.

ORDER

Huntington IS ORDERED to pay civil penalties of three
hundred dollars ($300) for the violation of section 77.1710(g) as
cited in Citation No.3729927 and three hundred dollars ($300) for
the violation on section 77.205(a) as cited in Order No. 3729920.
Payment is to be made within thirty (30) days of the date of this
proceeding and upon receipt of payment, this proceeding is
DISMISSED.

~~uE~~--David F. Barbour
Administrative Law Jud9e
Distribution:
Heather Bupp-Habuda , Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Suite 516,
Arlington, VA 22203 (Certified Mail)
S.M. Hood, Huntington Piping Incorporated, P.O. Box 1568,
Huntington, WV 25716 (Certified Mail)
\epy

399

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

..fEB 2.3 1994

.. CIVIL PENALTY PROCEEDINGS
.:• Docket No. KENT 93-505
... A. c . No. 15-17241-03501
v.
.. Docket No. KENT 93-638
MOUNTAINTOP RESTORATION, INC.,
. A. c. No. 15-17236-03505
Respondent
. Docket No. KENT 93-961
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner

. A. c. No • 15-17236-03508

DECISION

Appearances:

Darren L. Courtney, Esq., Office of the
Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for Petitioner;
Danny Patton, Safety Director, Mountaintop
Restoration, Inc., Paintsville, Kentucky, for
Respondent.

Before:

Judge Hodgdon

These cases are before me on petitions for assessment of
civil penalties filed by the Secretary of Labor against
Mountaintop Restoration, Inc. pursuant to Sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §§ 815
and 820. The petitions allege 24 violations of the Secretary's
mandatory health and safety standards. For the reasons set forth
below, I find that Mountaintop committed all of the violations as
alleged.
The cases were heard on December 22, 1993, in Paintsville,
Kentucky. Inspector Danny Tackett testified on behalf of the
Petitioner. Mountaintop's Safety Director, Danny Patton,
testified on behalf of the Respondent.
Pil!J)INGS or FACT

With respect to Docket Nos. KENT 93-505 and KENT 93-638, the
Respondent admitted that the violations had occurred as alleged,
i.e. that the violations were committed by Mountaintop and that
they were of the gravity and degree of negligence indicated on
the citations (Tr. 8-9) . Therefore, the only issue at the
hearing with regard to the 23 citations in those two dockets was
the assessment of appropriate civil penalties for the violations.

400

The evidence concerning Citation 4029809 in Docket No.
KENT 93-961 was undisputed . Inspector Tackett testified that he
went to Mountaintop's Deep Mine No. 1 during the midnight shift _
on April 8, 1993, to perform a quarterly inspection. The mine•s
check-in/check-out board indicated that two people were in the
mine. In fact, there were six people in the mine, none of whom
were the two listed on the board . The two listed on the board
worked on the day shift .
. As a result, Inspector Tackett issued Citation 4029809 which
stated that:
The operators (sic) established check in - check out
system was not kept in an accurate condition because
(6) employees of the owl shift were underground and not
checked in [,] (2) day shift employees were check in
(sic) but were not on mine property.
The violatiori\ was promptly abated by placing the employees• tags
on the proper ·place on the check-in/check-out board.
Mr. Patton testified that all employees are instructed on
the proper use of the check-in/check-out board, but that it is
hard to get them to use it. He said that the mine is wet, muddy
and sloppy so that the first thing a miner thinks about coming
out of the mine is getting out of his muddy clothes and going
home. He also -said that because of the condition of the mine
they had a hard time keeping employees.
·
PURTBER PIHDINGS OP PACT
AND

CONCLUSIONS OP LAW

Section 75.1715 of the Secretary's Regulations, 30 C.F.R.
75.1715, is taken verbatim from Section 317(p) of the Act, 30
u.s.c. § 877(p), and requires, in pertinent part, t~at:
§

Each operator of a coal mine shall establish a check-in
and check-out system which will provide positive
identification of every person underground, and will
provide an accurate record of the persons in the mine
kept on the surface in a place chosen to minimize the
danger of destruction by fire or other hazard.

401

Obviously, Mountaintop's check-in/check-out system did not
provide positive identification of the six men underground on the
midnight shift on April 8, 1993. Nor did it provide an accurate
record of the persons in the mine. Accordingly, I conclude that
the Respondent violated Section 75.1715 of the Regulations.
The inspector determined that this violation was the result
of high negligence on Mountaintop's part. He based this on the
fact that the company had been cited for the same violation at
the same mine just three months earlier (Gov. Ex. 2). In fact,
the current violation involved some, if not all, of the same
employees as the previous one (Tr. 18). Based on this evidence,
I agree that this violation resulted from the Respondent's high
negligence.
CIVIL PENALTY ASSESSMJ!lNT

The Secretary has proposed a total of $3,150.00 in penalties
for the 24 citations in these three cases. With respect to the
statutory criteria to be considered in assessing civil monetary
penalties, which is set out in Section llO(i) of the Act, 30
u.s.c. § SlO(i), the parties have stipulated that: (a) Deep Mine
No. 1 is a small mine with an average annual production of 62,832
tons, (b) all of the mines owned by B. w. McDonald (the owner of
Mountaintop Restoration) have an average annual production of
between 1,500,000 and 2,000,000 tons and (c) the Respondent
demonstrated good faith in abating the violations (Tr. 4-5).
The Respondent asserts that payment of the proposed
forfeitures will adversely affect its ability to continue in
business. It further specifically challenges the appropriateness
of the special assessment for Citation 4029809.
The burden of establishing that payment of civil penalties
would adversely affect a company's ability to stay in business is
on the company. See Sellersburg Stone Co. v. Fed. Mine Safety
and Health, 736 F.2d 1147, 1153 n.14 (7th Cir. 1984). To meet
this burden, Mountaintop has offered an income statement for the
period ending December 31, 1992 (Resp. Ex. A), a balance sheet
and income statements for the period ending August 31, 1993
(Resp. Ex. B), and three Payment Default Notices from Caterpillar
Financial Services Corporation dated December 2, 1993 (Resp. Exs.
c, D and E). In addition, Mr. Patton testified that Mountaintop
is no longer operating Deep Mine No. 1 (Tr. 29).
Mountaintop's evidence fails to demonstrate that it's
ability to continue in business would be adversely affected by
imposition of the propo~ed forfeitures. The financial statements

402

are unaudited. Although Mr. Patton stated that th~y had been
prepared by "[t]he company's CPA" (Tr. 28), they are not only not
certified, they are not even signed by the "CPA." In fact,
Mountaintop and it's owner, B. W. McDonald, have steadfastly
refused to provide any meaningful information concerning it's or
it's owners financial situation (Tr. 30-33, Gov. Exs. 3 and 4).
Consequently, I conclude that imposition of the proposed
forfeitures would not adversely affect the company's ability to
remain in business.
Mountaintop argues that the proposed $500.00 penalty for
Citation 4029809 is unwarranted for what is essentially a
technical violation (Tr.23-24, 38). Section 100 . 5 of the
Regulations, 30 C.F.R. § 100.5, permits the special assessment of
civil penalties when any of eight special circumstances are
present. Of those eight circumstances, this case could only come
within the purview of Section 100.5(h), "[v]iolations involving
an extraordinarily high degree of negligence or gravity or other
unique aggravating circumstances."
I conclude that the special assessment was appropriate in
this case. Mountaintop committed the same violation at least
twice within four months. As Mr. Patton stated: "It's a
Government law. You have to abide by the Government laws. And
it's a common notice issued at every underground coal mine"
(Tr. 25) . He further acknowledged that most mines made sure the
check-in, check-out procedure was followed by having someone
monitor the shifts entering and leaving the mine (Tr. 25). Yet
Mountaintop's concern for this common problem was so lacking that
not one miner had properly checked in · for the midnight shift, the
exact same shift that had previously been cited. In the event of
a disaster, there was no way that Mountaintop could be sure who
was, or was not, in the mine.
Mountaintop has not demonstrated that the proposed civil
penalties would adversely affect it's ability to remain in
business, nor has it shown that the proposed $500.00 penalty for
Citation 4029809 was unmerited or excessive.
Taking into
consideration all of the criteria in Section llO(i) of the Act,
I conclude that the $3,150.00 in civil penalties which the
Secretary has proposed in these cases is condign .

ORDER

Citation Nos. 4029511, 4029513, 4027026, 4027027, 4027028,
4027029, 4027030, 4027031, 4027032, 4027034, 4027036, 4027037,
4027040, 4030222, 4030223, 4030224 and 4030225 in Docket No.
KENT 93-505; Citation Nos. 4030256, 4030257, 4030258, 4030259,

403

4030401 and 4030403 in Docket No. KENT 93-638; and Citation
No. 402809 in Docket No. KENT 93-961 are Al'PIJUIBD as written.
Mountaintop Restoration, Inc. is ORDBRBD to pay civil penalties
in the amount of $3,150.00 for these violations within 30 days of
the date of this decision. On receipt of payment, these
proceedings are DISMISSBD.

d.4~~-

T. Todd H;;~"
Administrative Law Judge

Distribution:
Darren Courtney, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Mr. Danny Patton, Mountaintop Restoration, Inc., P.O. Box 940,
Paintsville, KY 41240 (Certified Mail)
/ lbk

404

P.'BDBDL ~ SUBft AJID BBAL'.l'll uvxn COMMT88%0B
OFFICE OF ADMINISTRATIVE LAW Jll>GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

LEEB 2 3 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

G & C MINING COMPANY, INC.,
Respondent

... CIVIL PENALTY PROCEEDINGS
.. Docket No. SE 93-356-M
.. A.C. No. 38-00344-05509
:
:

Docket No. SE 93-384-M
A.C. No. 38-00344-05510

..
G and c Quarry
DECISIONS

Appearances:

Stanley E. Keen, Esq., Office of the Solicitor,
U.S. Depart~ent of Labor, Atlanta, Georgia, for
the Petitioner;
· Walden B. Graham, President, G & C Mining
Company, Aynor, South Carolina, pro se, for
the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for
six (6) alleged violations of certain mandatory safety standards
found in Part 56, Title 30, Code of Federal Regulations. The
respondent filed timely answers and contests and hearings were
conducted in Florence, South Carolina. The parties waived the
filing of posthearing briefs, but I have considered their oral
arguments at the hearing in the course of my adjudication of
these matters.
Issues
The issues presented in these cases are (1) whether the
conditions or practices cited by the inspector constitute
violations of the cited mandatory safety standards, (2) whether
one of he alleged violations was "significant and substantial"
(S&S), and (3) the appropriate civil penalties to be assessed for
the violations, taking into account the civil penalty assessment
criteria found in section llO(i) of the Act.

405

Applicable Statutory and Begulato:r::y Proyisions
1.

The Federal Mine Safety and Health Act of
1977; Pub. L. 95-164, 30 U.S.C. § 801 ~ ~·

2.

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

3.

Commission Rules, 29 C.F.R.

§

§

2700.1 et seq.

stipulations
The parties stipulated to the following (Tr. 3):
1.

The respondent is a small limestone mine
operator and its mining operation· is subject
to the jurisdiction of the Mine Act.

2.

The presiding Commission judge has
jurisdiction to hear and decide these
matters.

3.

Payment by the respondent of the proposed
civil penalty assessments for the violations
in question in these proceedings will not
adversely affect its ability to continue in
business.

4.

All of the cited conditions were timely
abated by the respondent in good faith.

5.

The MSHA computer violations history print
out covering the period April 12, 1991,
through April 11, 1993, reflects the
respondent's relevant compliance record
(Exhibit AIJ-1).
Discussion

Docket No. SE 93-356-M
Section 104Cal non-"S&S" Citation No. 3881004, ~pril 12,
1993, cites an alleged violation of 30 C.F.R. § 56.9100(a), and
the cited condition or practice states that "the mine site was
not provided with traffic control rules governing speed".
Section 104(a) non-"S&S" Citation No. 3881005, April 12,
1993, cites an alleged violation of 30 C.F.R. § 56.12018, and the
cited condition or practice states that "5 circuit breakers
located in the mine shop building were not labeled to show which
units they control".

406

section 104Cal non-"S&S" Citation No. 3881006, April 12,
1993, cites an alleged viol.a tion of 30 c.F.R. § 56.14132(b) (1),
and the cited condition or practice states as follows:
The service truck at the mine site was not provided
with a backup alarm system, and the operator has an
obstructed view to the rear. The service truck was
parked at the shop, and was not tagged out, and was
ready for use.
Docket No. SE 93-384-M
Section 104Ca) non-"S&S" Citation No. 3881007, April 12,
1993, cites an alleged violation of 30 C.F.R. § 56.14101(a) (2),
and the cited condition or practice states as follows:
The parking brake on the cat road plow at the mine site
was not capabl e of holding the road plow with its
typical load on the maximum grade it travels. The road
plow was parked at the time, and was not tagged out,
and was ready for use.
Section 104Ca> "S&S" Citation No. 3881008, April 12, 1993,
cites an alleged violation of 30 C.F . R. § 56 . 14101(a) (1), and the
cited condition or practice states as follows:
The service brakes on the cat road plow were not
capable of stopping and holding the road plow with its
typical load on the maximum grade it travels. The road
plow was parked at the time, not tagged out, and was
ready for use. The road plow was also taken out of
service, and was tagged out.
Section 104(a) non-"S&S" Citation No. 3881009, April 12,
1993, cites an alleged violation of 30 C.F.R. § 56.14132(a), and
the cited condition or practice states as follows:
The backup alarm on the cat road plow was not properly
maintained as an automatic reverse activated alarm .
The backup alarm was being manually operated . The road
plow was parked at the time, was not tagged out,· and
was ready for use. The road plow also was removed from
service and was tagged out.
Petitioner's Testimony and Evidence
Docket No. SE 93-356-M
MSHA Inspector Salvador Iturralde confirmed that he
inspected the respondent's mining operation on April 12, 1993,
and that he was accompanied by foreman Mike Graham, the mine
operator's son (Tr . 8) . The inspector stated that as he drove up

40 7

to the mine entrance he observed two loaded dump trucks traveling
out of the mine "stirring up quite a bit of dust", and he got out
of the way to allow them room. He then proceeded to the shop and
did not observe any posted speed limit signs and found none
posted on the property. Under the circumstances, he issued
citation No. 3881004, because the respondent had no posted speed
limit sign (Tr. 8-9).
The inspector confirmed that during his inspection of the
mine shop he found that certain circuit breakers were not
labeled, and when he asked Mr. Mike Graham to identify the
electrical units controlled by the circuit switches, Mr. Graham
stated that he did not know. The inspector issued the citation
for failure to label the circuits (Tr. 10).
The inspector stated that he next inspected a long bed
pickup truck and found that the brakes were fine. However, the
truck was not equipped with a backup alarm, and the inspector
determined that the view directly to the rear of the truck was
obstructed by a square fuel tank mounted in the truck bed behind
the operator's ,cab (Tr. 11-12). He cited the truck because it
had no backup a~arm.
On cross-examination, the inspector stated that he did not
observe a master disconnect switch on the ground circuit breaker
box in question (Tr. 14-16). He was informed that the breakers
controlled a water pump, the shop lights, and other shop
equipment, and he believed that there were six unlabeled swi~ches
(Tr. 18) •
The inspector stated that the cited truck was used for
fueling equipment at the mine. He confirmed that he got into the
truck and determined that there was an obstructed view directly
to the rear because of the full tank mounted behind the cab. The
inspector confirmed that the truck had side view mirrors, but the
fuel tank obstructed the driver's view directly to the rear of
the truck, and he confirmed this by sitting in the truck and
turning and looking to the rear (Tr. 25-26).
The inspector estimated that the trucks he observed leaving
the mine were traveling about 30 to 35 miles an hour, and he did
not stop the trucks or speak with the drivers (Tr. 38-39).
Docket No. SE 93-384-M
Inspector Iturralde stated that he observed the cited cat
road plow parked at the shop area, and Mike Graham confirmed that
he had used it during the past week or weekend. The machine was
not tagged out, and he informed Mr. Graham that he wanted to

408

inspect the machine. Mr. Graham started the machine and tested
the parking and service brakes, and they would not hol~ the
machine. The inspector found that two of the hydraulic brake
lines had been "pinched off" at the two rear wheels (Tr. 42-45).
The inspector believed that the lack of operable service
brakes made it reasonably likely that an accident would occur if
the vehicle were placed in service and operated· on mine property
and that "permanently disabling" bodily injuries would result
from the lack of operable service brakes (Tr. 46-47). He
confirmed that customer trucks travel in and out of the mine
property, but he did not observe the grader in operation at the
time of the inspection. However, given .the layout of the mine,
he believed that in the absence of any brakes, it was reasonably
likely the machine in question would encounter another vehicle
and that an accident would occur at one time or another
(Tr . 59-60).
The inspector confirmed that the road plow was equipped with
a backup alarm, but he did not believe it was properly maintained
because it was operated manually and was not automatic. He
confirmed that. he observed Mr. Graham activate the alarm manually
(Tr. 47).
The inspector confirmed that the parking brake was tested on
a slope and would not hold the plow which was described as a
"regular" sized motor grader with a blade mounted on the front
(Tr. 54-56). He confirmed that the machine was taken out of
service after all three of the citations were issued. He also
confirmed that the machine had no brakes and "was free wheeling"
when the brake pedal was applied (Tr. 57-58).
Respondent's Testimony and Evidence
The respondent opted not to call any witnesses in defense of
the citations (Tr . 64). However, mine operator Walden Graham
asserted that he is a safety minded operator and he was afforded
an opportunity to state his case and explain the circumstances
under which the citations were issued with respect to the lack of
circuit breaker labels. Mr. Graham asserted that his personnel
are trained to disconnect the main power switch located on the
breaker box if there is a problem. He also believed that a
backup alarm on a vehicle "doesn'.t make it safe" (Tr. 16-17).
Mr. Graham did not deny the absence of the labels, but he took
the position that his employees are trained to use test equipment
and to disconnect the main power switch rather than relying on
labels, but he did not disagree that a breaker may be mislabeled
(Tr. 23-24) •

409

Mr. Graham produced photoqraphs of the cited truck, and he
pointed out the side view mirrors (Exhibits R-1 throuqh R-3;
Tr. 28-29). Mr. Graham stated that the mirrors were installed as
a safety measure for a view to the rear beyond the view
obstructed by the fuel tank. He also indicated that he wanted
his drivers to be able to see to the rear for themselves rather
than to depend on a backup alarm for safety, particularly when
the noise level of other equipment is such that the alarm cannot
be heard (Tr. 31).
Mr. Graham stated that all of the drivers and operators that
come on his property are qiven safety traininq and are advised of
the mine safety rules. He stated that the roads are such that
drivers maintain a prudent speed, and trespassinq signs are
posted (Tr. 33-36; Exhibits R-5 throuqh R-7).
With reqard to the citations concerning the road plow,
Mr. Walden Graham did not dispute the· inspector's findings with
respect to the cited brake and backup alarm conditions that he
observed (Tr. 52). Mr. Graham stated that the machine was a 1963
model, and he apmitted that the brake lines were blocked off, but
he denied that he did it, or that they were intentionally pinched
off. He explained that certain adjustments were made to the
lines to provide better braking, and that moisture affects the
brakes (Tr. 52-54).
Mr. Graham stated that the cited road grader was repaired
and returned to service, and he confirmed that there have been no
road grader accidents at the mine (Tr. 61). He also indicated
that his operators are trained to keep the scraper blade down,
and he did not believe that graders and plows should he treated
like trucks because "they don't move as fast" (Tr. 63).
Mr. Graham stated that he was concerned about the citations
that were issued in these proceedings because he believes that he
conducts a safe mining operation and has always complied with
MSHA's regulations and taken ·the necessary corrective action
(Tr. 65).
Mr. Graham's son, Kenneth, confirmed that the motor grader
backup alarm was operational and that it was activated manually
by "a little switch" (Tr. 68). With reqard to the lack of
circuit breaking labeling, Mr. Graham stated that nothing was
hooked up to the breakers, but he admitted that they were not
tagged or labeled. He suggested that the breakers were labeied
at one time, but that the labels fell off (Tr. 69). He did not
dispute the other cited conditions and stated that "they were
like he (the inspector) said" and that had he known the brakes
did not work, he would not have started up the engine for the

41 0

inspector and would have tagged it out (Tr. 69-70). He stated
that he or his brother operated the grader "once every two
months" to grade off the road and that he "felt comfortable"
operating it with no brakes, and that "all you got to do is mash
the clutch for it to stop" (Tr. 70).
Findings and Conclusions
· All of the citations in these proceedings were issued by
Inspector Iturralde in the course ·of an inspection on April 12,
1993. With the exception of Citation No. 3881006, citing an
alleged violation of section 56.14132(b)(l), for failure to
provide a backup alarm for the service truck which purportedly
had an obstructed view to the rear, the respondent did not
dispute the remaining existing conditions (Tr. 4-5; 67-69).
With regard to the cited fuel service pickup truck, the
respondent took the position that the two side view mirrors
installed on either side of the driver's cab (photographic
Exhibits R-1 through R-3) provided an unobstructed view to the
rear of the tDµck. However, the credible testimony of the
inspector, who · got into the truck and turned to the rear,
establishes that he had no clear view directly to the rear of the
truck because of the presence of a large full tank that was
installed in the bed of the truck directly behind the driver's
rear window compartment. The photographs, particularly R-2 and
R-3, corroborate the inspector's testimony, and having viewed
them, I agree with the inspector. Although the side view mirrors
may have provided the driver with a "line of sight" view directly
to the rear of the mirrors, I cannot conclude that the driver had
a clear and unobstructed view directly to the rear of the truck
bed because of the large fuel tank which obviously blocked the
driver's view through the rear cab window. Under the
circumstances, I conclude and find that a violation has been
established and the citation IS AFFIRMED.
Citation No. 3881004.

30 C. F.R .

§

56.9100(a).

The respondent here is charged with a violation .for not
providing the traffic control rules governing speed at the mine.
Section 56.9100, provides as follows:
To provide for the safe movement of self-propelled
mobile equipment( a) Rules governing speed, right-of-way, direction of
movement, and the use of headlights to assure
appropriate visibility, shall be established and
followed at each mine; and
(b) Signs or signals that warn of hazardous conditions
shall be placed at appropriate locations at each mine.

411

The inspector testified that he cited the respondent with a
violation of subsection (a), of section 56.9100, because he found
no posted speed limit sign at the mine (Tr. 8-9). The citation
was abated after "a sign governing speed was posted at the mine
site".

Mr. Walden Graham testified credibly that all drivers on
mine property are given safety training, which includes written
notice of the mine speed limit of 25 miles per hour, and he
produced a file which contained a company memorandum dated
August 3, 1992, advising truck drivers of the hazard training
required by MSHA (Exhibit R-7). He also produced two signed
hazard training forms dated August 10, and October 13, 1992,
signed by drivers who apparently received the training
(Exhibits R-5 and R-6). The form specifically states that the
mine speed limit is 25 miles per hour, and it contains a list of
safety procedures and rules applicable to vehicles and other
mobile equipment operating on mine property. Mr. Graham
confirmed that these hazard training forms are given to all
drivers and customers (Tr. 37). The inspector did not dispute
the fact that the respondent had such a training program
(Tr. 35).
Mr. Graham explained that speed limit signs have been p~sted
at the mine but that "we've had a hurricane or two and our mine
hasn't been as active as it was before we had the recession"
(Tr. 34). He also confirmed that trespassing signs are posted,
that there are a limited amount of visitors to the mine site, and
that it is difficult to speed on the mine roads because of their
configuration (Tr. 34-35).
I find nothing in the cited section 56.9100(a), that
requires the posting of a speed limit sign. The only requirement
for posting signs is found in subsection (b), and that only
requires signs warning of hazardous conditions.
The respondent's credible and unrebutted evidence
establishes that it had a safety hazard training program at the
mine, and it included notice of the mine speed limit and other
"rules of the road". Although the copies produced by Mr. Graham,
who represented himself in this case, are dated in 1992, they
stand unrebutted, and the petitioner has not proved that this
training program was not in effect at the time the citation was
issued. Under the circumstances, and after careful evaluation of
all of the available evidence, I conclude and find that the
·
respondent was in compliance with the cited standard, and that
the petitioner has failed to prove a violation. Accordingly, the
citation IS VACATED.

412

Citation No. 3881009.

30 C.F.R.

§

56.14132Ca)

In this instance, the respondent is charged with an alleged
violation of section 56.14132(a), for failing to properly
maintain the manually operated backup alarm on the cited road
grader "as an automatic reverse activated alarm". The cited
standard section 56.14132(a), provides as follows:
(a) Manually-operated horns or other audible warning
devices provided on self-propelled mobile equipment as
a safety feature shall be maintained in functional
condition.
The inspector confirmed that he issued the citation because
the backup alarm that was on the grader in question was not
properly maintained in that it had to be operated manually rather
than automatically (Tr. 47). He confirmed that he interpreted
the cited standard to require an automatic reverse alarm, and
suggested that the grader operator had an obstructed view to the
rear because "the machine engine is in the back and they can't
see directly l:)ehind them" (Tr. 51-52).
I find no credible evidence to establish that the grader
operator had an obstructed view to the rear of the machine that
would require an automatic reverse-activated signal alarm
pursuant to section 56.14132(b)((i). However, in this case, it
would appear to me that the grader was equipped with a reverseactivitated automatic alarm that was being operated manually
rather than automatically . The cited section 56.14132(a),
requires that such an audible warning device be maintained in
functional condition. Since the evidence shows that the alarm
had to be manually operated, I conclude and find that it was not
maintained in a functional condition in that it did not function
as an automatic "other audible warning device" as required by the
standard. Accordingly, the citation IS AFFIRMED .
Citation Nos . 3881005, 3881007, and 3881008 .
I conclude and find that the credible and unrebutted
testimony of the inspector supports each of these citations, and
THEY ARE AFFIRMED.
Significant and Substantial Violation.

Ci tation No. 3881008.

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

413

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 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 the violation, including the nature of the mine
involved, Secretary of Labor v. Texasaulf. Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987). Further, any determination of the sig~ificant
nature of a violation must be made in the context of continued
normal mining operations. National Gypsum, 3 FMSHRC 327, 329
(March). Halfway. Incorporated, 8 FMSHRC 8 1 (January 1986).
Citation No. 3881008
Based on the inspector's credible and unrebutted testimony
concerning the lack of service brakes on the cited road grader, I
conclude and find that his "S&S" finding was warranted. The
evidence establishes that the grader was "free wheeling" because
it had no brakes, and I agree with the inspector's belief that an

414

accident was reasonably likely if the machine were placed in
service and operated on the roadways that were used by vehicular
traffic. If an accident had occurred, I believe it would be
reasonably likely that injuries of a reasonable serious nature
would result. Under the circumstances, the inspector's "S&S"
finding IS AFFIRMED.
Size of Business and Effect of Civil Penalty Assessments on the
Respondents Ability to Continue in Business
The parties stipulated that the respondent is a small mine
operator and that payment of the proposed civil penalty
assessments will not adversely affect its ability to continue in
business. I adopt these stipulations as my findings and
conclusions.
History of Prior Violations
The MSHA computer printout concerning the respondent's
compliance record reflects that for the period April 12, 1991
through April 11, 1993, the respondent paid a civil penalty
assessment of $·s o, for one ( 1) section 104 (a) non-"S&S" citation
for a violation of mandatory safety standard 30 C.F.R.
§ 56.12025.
I conclude and find that the respondent has an
excellent compliance record and I have taken this into account in
these proceedings.
Good Faith Compliance
The parties stipulated that the respondent timely abated all
of the cited conditions in good faith, and I adopt this
stipulation as my finding and conclusion on this issue.
Gravity
I conclude and find that all of the non-"S&S" violations
were nonserious, and that the "S&S" violation concerning the lack
of brakes on the cited road grader was serious.
Negligence
I agree with the inspector's "moderate" negligence findings,
and I conclude and find that all of the violations were the
result of the respondent's failure to exercise reasonable care.
Penalty Assessments
In view of the foregoing findings and conclusions, and
taking into account the civil penalty criteria found in
section llO(i) of the act, I conclude and find that the following
civil penalty assessments for the violations which have been
affirmed are reasonable.

415

Docket No. SE 93-356-M
Citation No.

~

30 C.F.R. Section

Assessment

3881005
3881006

4/12/93
4/12/93

56.12018
56.14132(b) (1)

$25
$35

Docket No. SE 93-384-M
Citation No.

~

30 C.F.R. Section

Assessment

'3881007
3881008
3881009

4/12/93
4/12/93
4/12/93

56.14101(a)(2)
56.1410l(a)(l)
56.14132(a)

$25
$75
$25

ORDER
The respondent IS ORDERED to pay the aforesaid civil penalty
assessments within thirty (30) days of these decisions and Order.
Payment is to be made to MSHA, and upon receipt of payment, these
matters are dismissed.
Section 104(a) non "S&S" Citation No. 3881004, April 12,
1993, citing an alleged violation of 30 C.F.R. § 56.9100(a), in
Docket No. SE 93-356-M, IS VACATED, and the proposed civil
penalty assessment is DENIED AND DISMISSED.

k-At!~

Administrative Law Judge

Distribution:
Stanley E. Keen, Esq., Office of the Solicitor, U.S. Department
of Labor, 1371 Peachtree Street, N.E., Room 339, Atlanta, GA
30367 (Certified Mail)
Mr. Walden B. Graham, President, G & c Mining Company, Inc.,
P.O. Box 275, Aynor, SC 29511 (Certified Mail)
/ml

416

PBDERAL EllB SAFB"l'Y AJll) RRATIJ'll REVIEW como:ss:IOJf
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB 2 4 1994
MORTON INTERNATIONAL, INC.,
MORTON SALT,
Contestant

v.

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

CONTEST PROCEEDINGS

.. Docket No. CENT 93-237-RM
No. 3897764; 6/15/93
.: Citation
Docket No. CENT 94-49-RM
:

Citation No. 3897982; 6/15/93
Weeks Island Mine

:

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

v.

MORTON INTERNATIONAL, INC.,
MORTON SALT,
Respondent

. I.D. No. 16-00970
. CIVIL PENALTY PROCEEPING

.
: Docket No. CENT 93-259-M
. A.C. No. 16-00970-05660
.: Weeks Island Mine
.

.

DECISION
Appearances:

Edward H. Fitch, Esquire, Office of the
Solicitor, u.s. Department of Labor, Arlington,
Virginia, for the Secretary of Labor;
Henry Chajet, Esquire, Jackson and Kelly,
Washington, D.C., for Morton International,
Inc., Morton Salt.

Before:

Judge Melick

These consolidated cases are before me pursuant .to
Section 105(d) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. §801 et seg., the "Act," to challenge
two citations issued by the Secretary of Labor against
Morton International, Inc., Morton Salt (Morton) at its
Weeks Island domal salt mine. It is undisputed that this
mine is a Subcategory II-A Mine under 30 C.F.R.
§ 57.22003(a)(2)(i).

417

Citation No. 3897764 alleges a violation of the
mandatory standard -at 30 C.F.R. § 57.22235 and charges
as follows:
Methane readings were taken on top of a berm
which was positioned across the entrance to 10 EWN.
The berm was about 9' high and readings at about
15' were l %. A extended pole was used to reach
to heights of about 24 feet. As the pole with the
methane detector was extended upward the readings
continued to climb. The methane detector was shut
off at 3.25 % but readings would've read higher.
This is a II A mine that was a potential for
outburst when methane reaches explosive limits.
The cited standard, applicable to Subcategory II-A mines,
provides, in relevant part, as follows:
(a) If methane reaches 1.0 percent in the mine
atmosphere, all persons other than competent
persons necessary to make ventilation changes
shall be withdrawn from affected areas until
methane is reduced to less than 0.5 percent.
Citation No. 3897892 alleges a violation of the standard
at 30 C.F.R. § 57.22232 based upon the same methane readings.
This citation charges as follows:
Ventilation changes had not been made to reduce
the level of methane to below 0.5 % in the mine
atmosphere on June 15, 1993. Methane was detected
at the entrance to 10 EWN heading and upon advancement into the abandoned area where a large outburst
cavity was located at the face, the detector readings
began to rise. A reading was again taken while
standing upon an approximate 9 feet high berm being
used to close off the room and the detector was
extended upwards while positioned in the right hand.
It indicated a concentration of 1 % methane. The
approximate distance from the floor would be 16 feet.
A second reading was taken using an extension pole
and it indicated 3.25 % methane.
30 C.F.R. § 57.22232, also applicable to Subcategory II-A ·
mines, provides as follows:
If methane reaches 0.5 percent in the mine
atmosphere, ventilation changes shall be made
to reduce the level of methane. Until methane
is reduced to less than 0.5 percent, electrical
power shall be ·deenergized in affected areas,
except power to monitoring equipment determined by

418

MSHA to be intrinsically safe under 30 CFR part 18.
Diesel equipment shall be shut off or immediately
removed from the area and no other work shall be
permitted in affected areas.
There is no dispute that the Mine Safety and Health
Administration (MSHA) inspector in this case in fact obtained
the cited one percent and 3.25 percent methane readings and
that he obtained those readings within an abandoned area of
the subject Weeks Island Mine. 1 It is further undisputed
that the berm noted in the citation properly identified a
boundary of that abandoned area of the mine and that miners
were prohibited in accordance with law from entering that
abandoned area. It has been stipulated that the "affected
area" in these cases was entirely within this abandoned
area so that no withdrawal of miners or deenergization of
equipment was required.
Morton denies both violations arguing that the cited
standards were never intended to apply to abandoned areas
of mines and that the Secretary's contrary interpretation is,
in essence, inconsistent with the regulations and plainly
erroneous. The Secretary argues, on the other hand, that
the applicable definition of "mine atmosphere" referenced in
the cited standards does not distinguish between active and
abandoned areas, but rather sets forth the locations where
methane readings are to be taken in both active and abandoned
areas of a mine. The term "mine atmosphere" is defined, for
purposes of this part of the regulations, as "any point at
least 12 inches away from the back, face, rib, and floor in
any mine •••• " 30 C.F.R. § 57.22002.
It is well-settled that an agency's interpretation of
its own regulations is "of controlling weight unless it is
plainly erroneous or inconsistent with the regulation." Udall
v. Tallman, 380 u.s. l, 15 L.Ed. 2d 616, 85 s.ct. 792 (1965);
Bowles v. Seminole Rock Co., 325 U.S. 410, 414, 65 S. Ct. 1215,
1217, 89 L.Ed. 1700 (1945); Secretary v. Western Fuels-Utah,
900 F.2d 318, 321 (D.C. Cir. 1990). For the reasons set forth
herein, I find that the Secretary's present interpretation in
these cases that the cited standards apply to "abandoned areas"
of mines is indeed inconsistent with those standards and the
applicable definition of "mine atmosphere" incorporated in
those standards and is plainly erroneous.

1

The term "abandoned areas" is defined as relevant
hereto in § 57.22002 as "areas in which work has been completed,
no further work is planned, and travel is not permitted."

419

That the Secretary's proferred interpretation is both
inconsistent with the regulations and plainly erroneous is
apparent in the first instance from the use of the term "face"
in the applicable definition of "mine atmosphere." Common
usage in the mining industry clearly limits the term to only
active workings of a mine. In A Dictionary of Mining. Mineral
and Related Terms. U.S. Dept. of Interior. 1968, the term "face"
is variously defined as "a working place from which coal or
mineral is extracted," "the exposed surface of coal or other
mineral deposit in the working place where mining, winning, or
getting is proceeding," and "the point at which material is
being mined."
The use of the term "face" in defining the "mine atmosphere" where specified levels of methane trigger withdrawal
and remedial action under the cited standards is therefore
clearly inconsistent with the application of the standards to
abandoned areas (i.e., areas in which work has been completed,
no further work is planned and travel is not permitted) and
where there is accordingly no "face." The Secretary's attempt
to extend application of these standards to abandoned areas is
therefore both inconsistent with the regulations and plainly
erroneous.
In addition, all of the actions required by the cited
standards upon the specified levels of methane, except ventilation changes, i.e., deenergization of equipment, cessation
of work and removal of personnel, are clearly relevant only
to active workings where miners and functioning equipment are
present. These actions are meaningless in abandoned areas
where work and travel have already been prohibited. Moreover,
in order to make ventilation changes, miners would no doubt,
as in this case, be required to enter the dangerous environment
of abandoned areas. For this additional reason the Secretary's
present interpretation appears to be both inconsistent with
the regulations and plainly erroneous.
That the Secretary never intended the cited standard.s to
apply to abandoned areas is also supported by circumstantial
evidence. For example, while the Secretary does in fact
permit unsealed abandoned areas to exist in Subcategory II-A
mines he does not in the regulations require that such unsealed,
abandoned areas be tested for methane or specifically ventilated (Stipulation No. 40, Tr. 163). Indeed, the regulations
governing the locations where methane testing must be performed
in such mines specify only locations in active areas. See,
e.g., 30 C.F.R. § 57.22228 and§ 57.22230. In addition, the
methane monitors required by § 57.22301 to test the "mine
atmosphere" are to be located only in active areas. See
30 C.F.R. § 57.22301 (Tr. 67). Significantly, the Secretary's
regulations do require the ventilation of unsealed abandoned
areas but only in Subcategory III mines.

420

Furthermore, under the maxim expressio unius est exclusio
alterius, where a form of conduct, the manner of its performance
and operation, and the persons a~d things to which it refers
are designated in a regulation, there is an inference that all
omissions should be understood as exclusions. See Sutherland
Stat Const§ 47.23 (5th Ed.). 2
The Secretary's present interpretation of the cited
standards is inconsistent with this rule of construction.
The regulations specifically list areas where methane testing
is required to determine methane action levels in the mine
atmosphere. MSHA mandates preshift methan~ testing at all
work places (30 C.F.R. § 57.22229), as well as weekly methane
testing at the following locations: (1) active mining faces
and benches; (2) main returns; (3) returns from idle workings;
(4) returns from abandoned workings; and (5) seals. 30 C.F.R.
§ 57.22230.
Only active working areas are tested to determine
the methane content of the mine atmosphere by atmospheric
monitoring systems under 30 C.F.R. § 57.22301 (Tr. 67).
on the other hand, there are no testing requirements for
the "mine atmosphere" in abandoned areas and MSHA acknowledges
this fact (Stipulation .No. 40). Accordingly, under the maxim
expressio unius est exclusio alterus, since the Secretary has
listed specific locations for methane testing in Subcategory II-A
mines and concedes that abandoned areas are not required to be
tested for methane, it is apparent the Secretary did not intend
to apply the cited standards to abandoned areas and that his
present interpretation is inconsistent with these standards and
plainly erroneous.
·
The Secretary's attempted application of the cited
standards to abandoned areas is also contrary to the regulatory history. As noted in Morton's Brief, from 1969 until
1987, the Secretary's regulations required abandoned areas of
gassy mines to be sealed or ventilated. An MSHA proposed rule
would have instituted this requirement for Subcategory II-A
mines, but was rejected by the Secretary (Stipulation No. 39;
52 Fed. Reg. 24924, 24926 (1987)). In the case of Subcategory
II-A mines, the Secretary expressly found that the proposed rule
was unnecessary and duplicative of the protection provided by
existing 30 C.F.R. § 57.8528, which permits abandoned areas
without ventilation. In contrast, MSHA did promulgate a rule,
§ 57.22223, requiring the ventilation of unsea~ed, abandoned
areas of Subcategory III mines under certain conditions. There
is no such requirement applicable to Subcategory II-A mines.

2

When a regulation is legislative in character,
rules of interpretation applicable to statutes should be
used in determining its meaning • .IQ.. § 31.06.

421

Significantly, MSHA acknowledges in essence that the
result of enforcement of the citations in these cases is the
imposition of the rejected regulatory requirement, i.e., the
ventilation of unsealed abandoned areas in Subcategory II-A
mines (Stipulation No. 38; Exh. C-4 at page 27). The Secretary's atte~pt to enforce a provision which he previously
proposed but rejected is inconsistent with the principle that
the consideration and rejection of a provision is clear evidence
of the intent to exclude its requirement. Sutberland, supra,
§ 48.04 at 325; § 48.18 at 369. The adoption by the Secretary
of a provision applicable only to one class of regulated
entities, i.e., Subcategory III mines, also strongly suggests
his intent not to apply such provisions to excluded classes,
i.e., Subcategory II-A mines. Id. § 31.06. Thus, for these
additional reasons, it is apparent that the Secretary's present
interpretation of the cited standards is inconsistent and plainly
erroneous.
In this regard, it is also significant to note the history
of non-enforcement of the Secretary's present interpretation
both before and after the issuance of the citations at bar. It
is undisputed that MSHA had never previously attempted to enforce
the cited standards in the manner now taken. Since promulgation
of the gassy mine standards in 1987, and prior to the issuance
of Citation No. 3897764 on June 15, 1993, MSHA inspectors always
tested for methane in the active areas of the mine. More
particularly, the MSHA inspectors in this case acknowledged
that they had inspected the mine at issue dozens of times and
had never previously tested for methane in an abandoned area.
In addition, the instant citations were abated without
requiring ventilation changes to reduce the amount of methane
in the abandoned areas to below the prescribed 0.5 percent
action level set forth in § 57.22232. When the corresponding
citation was terminated, MSHA Inspector Olivier found 0.6 percent
methane in the cited abandoned area (Stipulation No. 12).
Indeed, Olivier maintains that he expected he would find higher
readings for methane as he traveled further into the abandoned
area (Stipulation No. 12).
Finally, it should be reemphasized that, as a matter of
safety, the Secretary himself has acknowledged that the ·
ventilation of abandoned areas of Subcategory II-A mines is
not necessary. See 52 Fed. Reg. at 24926 (1987). It is
further acknowledged that methane emanating from those areas
is subject to present regulatory controls.
For the above reasons, I find that the Secretary's present
· interpretation of the cited standards is both inconsistent with
the regulations and plainly erroneous. In the alternative, if
the language of the cited standards and the related regulatory

422

definition of "mine atmosphere" should not be considered plain
(and plainly inconsistent with the Secretary's present interpretation of that lanquage), a Chevron II analysis demonstrates that
the Secretary's interpretation is not reasonable. 'l'he preceding
discussion applies as well for this demonstration. See Chevron
U.S.A •. Inc. v. Natural · Resources Defense Council. Inc., 467 u.s.
837, 842 (1984); Secretarv v. Keystone coal Mining Cor,p.,
16 FMSHRC 6 (1994);
Accordingly, under either theory, since the methane readings
cited as a basis for the instant charges were taken within an
abandoned area of the Weeks Island Mine, an area I find to be
outside the ambit of the cited standards, there could be no
violation of the standards and the citations must accordingly
be vacated.
·
QRDER

Citation Nos. 389764 and 3897982 are hereby vacated.
Contest Proceedings Docket Nos. CENT 93-237-RM and
CENT 94-49-RM. are GRANTEd and Civil Penalty Proceeding
Docket No. CENT 93-259-M is DISMISSED.

Distribution:
Henry Chajet, Esq., Jackson and Kelly, 2401 Pennsylvania Ave.,
N.W., suite 400, Washington, D.C. 20037 (Certified Mail)
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(Certified Mail)
Arnold Gregoire, Miners' Representative, 1525 Montagne Street,
No. l3B, New Iberia, LA 70560 (Certified Mail)
\lb

42 3

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

FEB 2 4 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
. v.

.

CIVIL PENALTY PROCEEDING
Docket No. PENN 93-15
A. C. No. 36-07270-03526
L & J Energy Company

L & J ENERGY COMPANY, INC.,
Respondent

DECISION
Appearances:

Linda M. Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania for Petitioner;
Laurance B. Seaman, Esq., Gates & Seaman,
Clearfield, Pennsylvania, and Henry Chajet, Esq.,
Jackson & Kelly, Washington, DC for Respondent.

Before:

Judge Weisberger
statement of the case

This case is before me based upon a Petition for
Assessment of Civil Penalty filed by the Secretary of Labor
("Secretary" or "Petitioner") seeking civil penalties and
alleging violations by L & J Energy Company, Inc. ("L & J" or
"Respondent") of volume of the Code of Federal Regulations. The
orders and citations for which penalties are sought were issued
by MSHA inspectors subsequent to an investigation of a rock fall
at Respondent's Garmantown Mine, (No. 3 Pit), in which one miner
was killed, and another was seriously injured. An Answer was
duly filed, and pursuant to notice, and subsequent to discovery
engaged in by the parties, the case was heard in Johnstown,
Pennsylvania on May 17 - 20, 1993, and August 24 and 25, 1993.
The parties filed Post Hearing Briefs and Proposed Findings of Fact on November 19, 1993.

424

I. FINDINGS OF FACTS

A.

Hiqhwall Development and Auger Operation

1.
On February 5, 1991, L & J operated the Garmantown
Mine, (No. 3 Pit) in Cambria County, Pennsylvania. This mine
consisted of a surface pit area and a highwall.
2.
In developing the highwall, a bulldozer removed the
surface trees, grass, and ground cover. As each layer of the
highwall was developed by removal of ground cover, it was scaled
by the teeth on the bucket of a front-end loader. 1 John Woods,
an employee of L & J at the No. 3 Pit in February 1991 and a
certified highwall examiner, examined the h i ghwall daily for
loose material during its development.
3.
On December 6 , 199 0 , 60 holes we re blasted i nto the
highwall at the No. 3 Pit. At that location, the highwall was
34-40 feet high, plus two feet of c oal seam. The highwall f aced
west and had a slope of 15 degrees.
4.
L & J Energy completed strip mining at the No. 3 Pit on
January 15, 1991.
5.
On January 25, C.B. Holms, Inc. ( "Holms") commenced ,
under contract with L & J, an auger operation to remove c oal from
the seam at the bottom of the highwall. In this process, holes
were bored into the coal seam, and coal was extracted.
6.
Shad Spencer, L & J's superintendent and a certified
highwall examiner, examined the highwall at least two times a
day, and sometimes three times a day, between January 25 and
February 4. During this period, Spencer did not observe any
hazards.

7.
On January 28, John DeHaas and Ronald McCracken,
Pennsylvania Department of Environmental Resources ("DER"} Mine
Inspectors, inspected the highwall and determined that it
appeared to be safe.

1

MSHA Inspectors Charles Lauver and John Kopsic testified
that the highwall did not contain any scratches or teeth marks
when observed on February 6, and opined that the highwall had not
been scaled. I place more weight on the testimony of John Woods,
an L&J employee certified to examine highwalls, who stated that
L&J developed the highwall with a bulldozer and that, in fact,
the hiqhwall was scaled with a loader bucket as it was developed
layer by layer.

425

a.
on February 4, Donald warner, L & J's head mechanic,
was at the No. 3 Pit to repair some equipment. Warner did not
make an examination, but he looked at the highwall to see if he
could work under it. Warner testified that there was no loose
material on the pit floor or loose rocks in the highwall.
9.
Doug Todd, the auger operator for Holms, and supervisor
of the auger crew, inspected the highwall regularly since January
25. Todd examined it hourly between his activity of loading
trucks. He ·l ooked up to the top of the highwall for 25 feet on
each side of the auger. While augering, Todd continued to
observe the highwall in the area immediately above where he
worked for 1 to 2 minutes at a time. Todd did not observe any
hazardous conditions in the highwall prior to the incident that
occurred on February 5.
B.

February 5, 1991

10. on February 5, Spencer examined the highwall three
times between 7:00 a.m. and 12:30 p.m., looking for loose
material. Spencer did not see any loose material, nor did he see
any rocks on the floor of the pit. Spencer, referring to 25 feet
on each side of the auger up to the top of the wall, said that he
"really looked it over good" (Tr. 100, May 19, 1993).
11. Todd made an examination in the afternoon of
February 5. While standing on the platform of the auger. Todd
did not see any hazardous conditions, .and did not see any
dribbling, i.e., falling of small stone and debris, warning that
a heavy fall may be imminent.
12. At approximately 4:50 p.m., two rocks fell from the
highwall--one, 28 inches by 30 inches by 11 inches, struck and
killed Donald Lawton, and the other struck Lawrence Fulmer,
seriously injuring him. The rocks hit the men simultaneously and
then some additional rocks fell--one the size of a gallon paint
can, another the size of a fist, and some that were the size of
gravel.
13. None "DER" inspectors or any of the MSHA inspectors who
arrived on the scene that evening were able to observe the
condition of the highwall due to nightfall.

426

c.

February 6, 1991

14. On February 6, MSHA Inspector Charles Lauver arrived at
the site at 7:30 a.m., and he observed loose material along the
entire length and height of the highwall. He testified that
there were rocks in the highwall that did not have any support.
He noted cracks, one of which was 2 to 3 feet long, over the
auger hole and at other areas of the highwall. According to
Lauver, there was an overburden to the left of the auger area
leaving an undercut 5 feet deep and 20 feet long. He stated that
at some point in time this overburden would fall. He also
observed mud slips in several areas. Lauver observed rocks
falling for the entire length of the highwal l. He said there was
a "constant rain of material," consisting of rocks, dirt, and
shale. (Tr. 96, May 28, 1993) Photographs were taken of some of
these conditions between 10:0 0 a.m. and noon.

15. MSHA Inspector John Kopsic testified that there was
loose material in areas of the highwall not shown in these
photographs. K6psic observed dribbling , cracks, crevices, and
some rock "hanging" near the auger (Tr. 63, May 18, 1993). He .
also noted dribbling, and opined that half of the highwall needed
scaling. Ronald Gresh, an MSHA inspector and supervisor,
observed "loosened" and "fractured" areas, and "broken pieces of
rock" (Tr. 108, May 19, 1993 ) . MSHA inspector Ronald Miller
observed rock, dirt and loose material along the face and sides
of the highwall.
16. DER Inspector John DeHaas observed loose rocks and
cracks in the highwall face, and DER Inspector Donald Mccracken
observed cracks. DeHaas and McCracken also observed falling
rocks.
17. According to Lauver's observations, the loose material
was scattered along the full length of the highwall; 30 percent
of the highwall was comprised of loose material. He estimated
that loose material covered 75 percent of the highwall, at a
minimum. Lauver estimated that more than 100 pounds of material
was sticking out on the highwall.

18. The inspectors also observed an undercut overhang. The
overhang was not barricaded or dangered off. Lauver stated that
if the overhang fell, rocks above it will fall out into the pit.
Lauver testified that rocks which were unsupported by this
overhang could likely bounce and hit a truck parked nearby.

427

19. Lauver, accompanied by Miller, took photographs of the
pit between 10:00 a.m. and 12:00 p.m.on February 6. See Exhibits
G-2a through G-2n and G-2aa through G-2nn. 2 The photographs do
not show all the loose material on the highwall.
20. According to Lauver, the photographs show unsupported
rock (photographs 2aa, 2dd, circles "A" and "B"), and cracks
developed behind the rocks and shale on the highwall.
(Photographs 2A, circle D).
Lauver pointed out a large crack extending diagonally from
left to right (Exhibits 2b, 2e, 2n, circle "J"), and loose rock
(Exhibits 2, circles "M" and "N", Exhibits 2h, 21, circle "O",
circle "C", and circle "J"). He opined that photograph 2A shows
non-scaled material pushed away from the highwall (circle A), and
unsupported rock (circle C).
21. On February 6, 1991, issued a Section 107(a) Withdrawal
Order citing an imminent danger covering the entire highwall, and
also issued a Section 103(k) Order.
D.

DID THE HIGHWALL DETERIORATE OVERNIGHT?

22. Respondents• witnesses were not present at the site on
February 6 when it was examined and photographed by MSHA
Inspectors, and observed by Pennsylvania Inspectors. However,
they examined the photograph taken on February 5, (Exhibit G-2).
a.

Testi mony of Lay Wi tne sses

John Woods, who was employed by L & J on February 5, and who
was certified to examine highwalls, and Todd, testified that the
crack depicted was "A" in the photographs that comprise Exhibit
G-2 as not present on February 5. With regard to the loose
material that Lauver explained existed in the area marked "B",
(Exhibit G-2), Woods and Todd opined that what is shown is not
loose material.
23. Spencer testified that in his examination on February
5, he did not notice hazardous material in the area circled as
"C" (Exhibit G-2).

2

Exhibits G-2a through G-2n were enlarged for use at the
continued hearing on August 24 and 25. The enlargements were
admitted as Exhibits G-2aa through G-nn. Collectively, these
photographs are referred to as Exhibit G-2.

4 28

24. Todd stated that this material is loose rock, but it
was not present on February 5.
25. Woods stated that the material marked as "l" in
"C" (Exhibit G-2) looked loose, but it was not present on
February 5. Woods could not say if the gap "E" was in existence
on February 5. woods did not see any mud slip at "F".
(Ex G-2)
Woods opined that the material depicted at "H" (Exhibit G-2) and
identified by Lauver as loose did not constitute a hazard. Woods
conceded that the crack "G" was unsafe. (Ex. G-2) However, Todd
explained that there was no intention to auger in that area due
to the unsafe condition. He indicated that there were not any
trucks or conveyor belts located under that point.
26. Todd stated that the crack depicted at "J" (Exhibit G2) was not in existence on February 5. Also, Todd stated that
the crack depicted at "K" (Exhibit G-2) was not present on
February 5, and that he was certain that this crack (Exhibit G-2)
was not present prior to the accident. He indicated that if the
crack was present he would not have allowed miners to work until
the condition .was fixed . or taken care of.
27. Woods opined that the rocks depicted at "L" (Exhibit
G-2) were not loose as testified to by Lauver, but only were
chipped. Both Woods and Todd agreed that the material depicted
at "M" (Exhibit G-2) was loose rock, but maintained that this
condition was not present prior to February 6.
28. Todd could not remember the existence of loose material
as depicted at "N". (Exhibit G-2) Woods testified that the
material depicted could be loose rock, but that he could not tell
from looking at the photograph. He indicated that there were no
loose rocks in the area of "N" and "O" (Exhibits G-2) when he
made his examination on February 5.
29. Woods testified that those rocks marked in circle
"C" noted by MSHA Inspector Ronald Miller, as being loose and looked loose, but "it wasn't there the. day I inspected the high
wall they were not there on February 5."
(sic) (Tr. 219, May 18,
1993).
30. The undercut in G-2d "G" was in the far left side of
the pit, and it was 30' to 35' from nearest piece of equipment.
The auger crew never intended to mine under the overhang, and did
not do so.
31. Dr. Kelvin Wu, a professional b expert testimony
regarding the photographs (Exhibit G-2) engineer employed by
MSHA, examined the photographs (Exhibit G-2), and opined that

429

loose material was depicted in 2aa, circles 1, 2, 3 and 4, which
he termed unstable. He also opined that a crack was depicted in
2(g) as well as material without support depicted in 2ff.
32. Respondent's expert, Vincent Scovazzo, a professional
engineer, opined that the material depicted in circles 1 and 2 in
2aa, when depicted from a different angle in 2cc appeared stable
and well supported. He also opined that as depicted in 2cc there
appeared to be sufficient material below the items within circle
4 to prevent these items from sliding. He indicated that he
could not comment on the stability of the material within circl e
3 in 2aa as the picture was hazy. However, he said that as
depicted in 211 the material appeared to be a loose r o ck. He
also indicated that 2m depicted loose r ock, and 2h showed a
crack. He agreed that the pictures depicted more loose rocks
than those that were circ led.
E. ·

Weathe r Conditions

33. In essence, the parties stipulated to accept the
weather data cQmpiled by J. Donald Krise with the exception of
his data on pre'cipitation. 3 The data collected by Krise is
based upon his contemporaneous readings of meteorological
instruments. located at a site 12 miles from the subject mine.
34. In summary, in the days immediately preceding
January 25, 1991 and the start of auger mining in the No. 3 Pit,
the temperature did not rise above the freezing mark. From
January 26, 1991 to· January 30, 1991, a period of freezing
and thawing took place: the low temperatures were below
freezing, while the high temperatures were above freezing. Then,
2 days of below-freezing temperatures on January 31, 1991 and
February 1, 1991, were followed by temperatures "which beginning
on February 3, 1991, were consistently well above freezing.
35. The detailed temperature data compiled by J. Donald
Krise, is as follows:

The parties did not stipulate to be bound of Krise's data
regarding precipitation. However, I accept Krise's records
regarding precipitation, as they are based upon contemporaneous
empirically based data. In contrast, the testimony proffered by
the witnesses for both parties is not accorded much weight as the
testimony was subjective, not based upon empirical data, and
related to events that occurred two years prior to the hearing.
3

4 30

Temperature

Temperature
1/21

low: 6
hi: 32

1/26

low:
hi:

33

1/22

low: -1
hi: 22

1/ 27

low:
hi:

13

1/23

low: - l
hi: 34

1/28

low:
hi:

27
37

1/24

low: 9
hi: 26

1/29

low:
hi:

44

low:
hi:

o

1/30

low:
hi:

15
32

2/ 4

low:
hi:

13
28

low:
hi:

28
46

low:
hi:

50

1/25

1/31
2/ 1

2/2
2/3

20

low:
hi:

2

35

12
32
45

low:
hi:

56

2/ 5

low:
hi:

34
58

2/6

low:
hi:

44

37

48

37

36. As compiled by Krise, the rainfall for February 5 was
.01, and for February 6, up to a:oo a.m. the rainfall was .03.
F.

Expert testimony

37. The parties stipulated that in analyzing the issue of
whether the conditions that were observed on February 6 had
existed the day before and the testimony of the expert witnesses,
Wu and Scovazzo, is to be relied on exclusively.
38.
Kelvin Wu testified as an expert witness for MSHA.
Wu holds a doctorate in mine engineering from the University of
Wisconsin, awarded in 1971.

Wu taught mining, geology, advan'c ed strata control,
longwall mining, mine evaluation, surface mining equipment, and
safety and health laws. To university undergraduates and
qraduate students, Dr. Wu has published articles on slope
stability analysis and material instability hazards.

431

39. Vincent Scovazzo testified as an expert witness for
respondent. Scovazzo is a professional engineer. He estimated
that 25 percent of his billings involve highwall work. He has
completed his course work towards his doctorate, but has not
completed his dissertation.
40. Wu and Scovazzo agreed that a freeze/thaw effect could
lead to a rapid deterioration of a highwall. A freeze/thaw
occurs when either rain or ground water is present in the cracks
and crevices of a highwall and freezing temperatures transform
the liquid water to ice. As the water hardens into ice, it
expands, pushing particles and rocks in the highwall away from
each and away from the highwall. While the highwall remains
frozen, the ice holds loosened particles and rocks in place
However, once the temperatures have been above freezing long
enough to melt the ice holding a rock to the highwall, the rock
will fall.
41. Wu identified in Exhibit 2aa loose material which he
circled l, 2, 3 and 4. He opined that these materials were
unstable and constituted a safety hazard. He opined that these
conditions could not have developed in a 24 hours time period
based upon his review of Krise's temperature and precipitation
data. He explained that cracks and loose materials develop
naturally and continuously during the mining operation. In
addition, removal of the overburden and blasting can cause these
conditions. He indicated, however, that although the depicted
conditions "probably" could not have been produced by one day of
freezing and thawing temperatures, their production was
"possible" depending of how extreme the change were between
thawing and freezing. (Tr. 61, August 24, 1993).
42. Wu stated that the rock that struck the miners could
not have fallen without being preceded by fall of other
materials. He indicated that it was possible, but not probable
that the supporting materials came out only a few seconds before.
43. The inability to predict when rock or loose material is
going to come down makes dealing with this kind of material
uncertain and dangerous. Not all readjustment in the strata is
visible on the highwall; a great deal of deterioration would not
be immediately visible.
44. Dr. Wu opined that the eroded conditions were visible
on the day of the accident, because the thawing in the two to
three days prior to the accident impacted the highwall.

432

Dr. Wu testified that under such conditions, "All those
loose material on the face have much higher chance to become
loose." (sic) (Tr. at 89, August 24, 1993). As Wu explained,
the gradual thawing of the ice in the highwall contributed t o
its dangerous state. "When you have water • • . it loosens
anything ready to fall down. The [highwall] is already cracked
and when gets in there, they expand and freeze. They push the
material out a little bit, but the ice will be holding the
material together. Once the ice melted, there was nothing to
hold them, gravity takes over • • • [they] fall." (sic) (Tr. 8990, August 24, 1993).
45. Wu testified that augering causes the rock strata to
readjust itself continuously to reach equilibrium. As a result,
these loose materials are developed. Once these materials lose
support, they will fall from the face.
46. Wu described the highwall depicted in exhibi ts G-2 as a
very "jagged" .a nd "rugged" (Tr. 67, August 24, 199 3 ) . " He
testified that.even more precaution is necessary with such loose
material than during normal mining operations.
47. Wu opined that, from his review of the photographs, the
area had not been adequately scaled.
48. Wu . testified that the highest reach of a front-end
loader is twenty feet. He opined that a front-end loader could
not have reached the top of a highwall in the 30 to so foot range
for scaling purposes.
49. According to Scovazzo, the amount of precipitation
recorded in Krise's weather logs would have had a negligible
effect on highwall erosion. Only "heavy" rain would have
substantially added to the erosion caused by thawi ng. (Tr. at
166, August 24, 1993).

so. Scovazzo also agreed that, in general, it was probable
that a highwall which was 75 percent covered with loose
materials, did not develop that condition in 24 hours.
51. According to Scovazzo "[f]or a highwall to deteriorate
quickly, you would have to have a weather event that would thaw
the highwall after deep freezing". (Tr. 148, August 24, 1993).
He opined that two or three days of high temperature are needed
to significantly thaw the highwall. He testified that the night
of February s, 1991, was a very warm night which could have
caused dramatic thawing.

4 33

52. According to Scovazzo, for the deterioration of the
highwall to have occurred between February 5, and February 6, the
~ighwall would have to have been partially frozen followed by a
increase in temperature above freezing. He explained that for
overnight deterioration to have occurred, the highwall had to
have been partially frozen on February 5, 1992, along with
thawing after the accident and before the photographs were taken.
53.
According to Scovazzo, the whether conditions could
have caused the deterioration between February 5, and February 6.
He explained that prior to February 3, there was a period of .
freezing and thawing. Between January 21 and January 27, since
temperatures were below freezing, the highwall was deeply frozen.
After January 28 and before February 3, since daytime
temperatures were about freezing, but nighttime temperatures were
below freezing, a thaw occurred that extended only a few inches
into the highwall, but whatever melted was refrozen at night. He
said that commencing February 3, the daily high and low
temperatures were above freezing during the day and night. He
said that during that time the few inches of thaw did not
refreeze and the highwall continued to thaw. Scovazzo opined
that by February 5, the partially frozen wall had thawed
approximately a few inches to a foot depending upon how much
ground water was delivered to the face, the amount of rainfall,
the amount of sun on the face, and the roughness of the surface
of the face. He explained that if material sticks out of the
face it thaws faster. He said that the night of February 5,
was warm and as a result there was a deeper thaw i.e., to a
greater depth of the highwall. He said that all these conditions
led him to the conclusion that possibly during the night of
February 5, there was enough of a thaw to explain the difference
between the observations of the highwall on February 5, and the
observations on February 6, of the highwall by the MSHA
inspectors. In reaching this conclusion, Scovazzo, also took
into account Krise•s notation for the date of February 6, as
follows: "snow 99% gone." (Exhibit G-22) Scovazzo concluded,
based upon this notation, that there had been no substantial
ground thaw until..February 6, and therefore there could have been
a substantial thaw the night of February 5. He said that, in
general, snow thaws easier than the ice in a highwall, as snow is
usually only a few inches deep whereas ice penetrates a highwall
to a greater depth. He opined that contributing to the thaw, the
night of February 5 was the constant drizzle in the evening.
However, he said that the effect on the thawing of the amount of
precipitation reported by Krise is insignificant.

434

54. According to Scovazzo, since the temperature was above
freezing from February 3, until February 7, significant thawing
occurred in that period.
55 . Scovazzo opined that on February s, the wall was
partially frozen. He said that it takes a long time for a thaw
to penetrate and unfreeze the wall. Hence, a deep thaw is needed
to cause deterioration.
G.

Ground Control Plan

56. The ground control plan in effect for the No. J ' Pit at
the time of the accident states as follows: "Any loose material
observed is taken down. If unable to remove loose material, the
area next to the highwall is barricaded to protect the workmen."
(Exhibit G-32, p. 2}.
H.

Training and Examinations

57. C.B. ·H olms, Inc., ("Holms"} had performed auger mining
at the Garmantown Mine for both the current and former owners of
L & J, during the four years prior to the accident at issue.
58. Holms'employees who were in the No. 3 Pit on the day of
the accident were Don Lawton, an auger miner with 16 years
experience; Doug Todd, a coal auger operator with 14 years
experience and the son-in-law of Lawton; Larry Fulmer, an auger
miner with 14 to 15 years experience; Alan Cessna, an auger miner
employed on a part-time basis by Holms during the prior two
years; and Gary Pershing, who was working his first day with
Holms.
59. Todd told Lauver that he did not have a card
authorizing him to perform pre-shift examinations. Lauver
testified that Todd admitted, "no he did not [perform exams];
because he did not have the certification for it." (Tr. 149,
May 17, 1993). Lauver testified that Todd told him that he
depended on the company to perform the examinations. ·ia.
60. The Holms auger crew worked eight to eleven hour days
during auger operations. The crew with the exception of Cessna,
worked in the No. 3 Pit for at least five consecutive days prior
to the accident, that is, on January 25, 28, 29, 30, 31, and
February l, 1991. Holms and its employees had performed auger
mining at the L & J Garmantown Mine for at least 4 years prior to
the day of the accident.

435

61. Lauver reviewed Respondents' record books for records
of hazard training. According to Lauver, both Spencer and Woods
stated that they were aware of the requirements of hazard
training.
62. Spencer admitted that he knew MSHA's training
requirements, but "I assumed they [the auger employees) had their
training." (Tr. at 101, May 19, 1993).
63. None of the auger crew members had received valid MSHA
refresher training and the new auger crew member had no training.
According to Todd, the auger crew knew that they needed training,
but Lawton instructed them to wait until after the job was
finished.
64. Spencer did not record his examinations, because he did
not know the results were to be recorded. However, he told
Inspector Lauver that he had inspected the highwall three times
before 12:30 p.m. on February 5, 1991, and found it to be safe.
I.

Citations and Orders

65. Lauver issued imminent danger Order No. 3490035, under
Section 107(a) of the Mine Safety and Health Act ("the Act") and
accompanying Citation No. 3490036, under Section 104(a) of the ·
Act. He issued the order based on the dangerous condition of the
highwall at the No. 3 Pit on February 6, 1991. He issued the
citation for violations of 30 C.F.R. § 77.1005.
66. Inspector issued Citation No. 2892100, under Section
l04(a) of the Act, on February 13, 1991, citing a violation of
30 C.F.R. § 77.1000. He issued this citation for the operator's
failure to follow the ground control plan.
67. Lauver issued Citation No. 3490202, under Section
104(a) supra, on February 13, 1991 citing a violation of 30
C.F.R. § 77.1000-1. He issued the citation for the operator's
failure to note hazardous conditions on the highwall during its
pre-shift inspection.
68. Lauver issued Citation No. 3490201, under Section
l04(d) (1) supra on February 13, 1991 for violations of 30 C.F.R.
§ 48.3l(a).
He issued the citation for the operator's failure
to provide hazard training to the employee of C.B. Holms.
69. Miller issued Citation No. 3486001, under Section
104(a) supra, on February 13, 1991 for violations of 30 c.F.R.
§ 77.1000-1.
He issued the citation for failure to file a
ground control plan with MSHA showing auger mining taking place.
Lauver issued Citation No. 3490203, under Section 104(a) supra,

436

on February 13, 1991, for violations of 30 C.F.R. § 77.l50l(a).
He issued the citation for a lack of records showing examination
of the highwall for a distance of 25 feet where augering was
taking place.
70. Lauver issued Citation No. 34902 04, under Section
104(a) supra, on February 13, 1991, for violations of 30 C.F.R. §
77.150l(b). He issued the citation for a lack of records showing
frequent examinations of the highwall during periods of freezing
and thawing.
71. Douglas c. Shimmel, a licensed CPA prepared a pro forma
review of L & J's financial statements, based on L & J's cash
receipts and distributions. He did not review the actual bills,
nor did he determine if there statements given to him by L & J
employees were accurate nor did he test L & J internal control.
J.

L

& J ability to continue in business

72. L & J · Energy has assets of over $1,600,000.00 in mining
equipment. These assets have risen by $200,000.00 in the past
two years.
73. The pro forma statement prepared by Shimmel shows, as
of December 31, 1992, current liabilities of $417,812. 00, and
current assets of $89,408. Also shown is net income of
$161,063.00, and net cash provided by operating activities of
$366,435.0 0 .
74. L & J showed total income on its IRS return for 1992 of
$687,421.00 and $595,696.00 for 1991.
75. L & J had sales of nearly 2 million dollars in 1992.
L & J's sales increased by $100,000.00 from 1991 to 1992.
76.

L & J incurred notes payable of $195,000.00 in 1992.

77. L & J incurred nearly $400,000.00 of loans to purchase
new equipment in 1992.
78. L & J has at least two affiliates - Cloe Mining and
Hepburne Mining - owned by shareholder Robert Spencer.
Respondent has provided no information on the financial condition
of these companies.
79. L & J is owned by one shareholder, Robert Spencer.
Respondent supplied no information on the financial status of
Spencer and has not established that it will be a personal
hardship for Spencer to pay a civil penalty.

437

80. Robert Spencer received $300,000.00 in distributions in
1991, and $260,000.00 in distributions in 1992. These
distributions are used to pay the former shareholder for L & J.
81. According to Shimmel of the reclamation liabilities of
L & J are taken to account, along with -current liabilities,
current liabilities would exceed assets by $1,028,422.00 4
II. DISCUSSION
A.

Order No . 3490 035

on February 6, 1991, MSHA Inspector Charles Lauver issued a
withdrawal order under Section 107(a) of the Act. This
withdrawal order prohibited persons from entering L & J Energy
No. 3 Pit due to an imminent danger posed by erosion of the
highwall.
No witness seriously contests the state of the highwall
on this date. 5 All the witnesses who saw the highwall of
February 6 - the MSHA inspectors and the Pennsylvania DER
inspectors - said that loose rocks covered the highwall, cracks
and "slips" ran throughout the highwall, and an unbarricaded
overhang existed in the highwall. The testimony of MSHA

~
According to William E. Maines, a professional
engineer, who prepared an estimate of reclamation liability,
(Respondent's Exhibit No. 4) as of December 31, 1992, some
reclamation costs are incurred when mining starts. However, the
costs that he calculated were based upon the reclamation costs to
all Respondent's mines, assuming they would be shut down.
However, as of December 31, 1992, only at the Garmantown No. 2
was mining completed, Respondents other mines, including an
active pit at Garmantown No. 2 were still considered active.
Hence, it has not been established that the figures set forth by
Maines for reclamation, are obligations in full for L & J in the
category of current liabilities as there is no proof that the
full amount of the reclamation or indeed of any specific amount
is to be satisfied within the next year of December 31, 1992.

5

As counsel for MSJiA stated in the conference call, the
imminent danger order was issued for February 6, 1991. All other
citations concern the state of the highwall prior to the accident
on February 5, 1991.

4 38

Inspectors Lauver, Miller, and Kopsic that they saw rocks and
stones falling from the highwall on that date was uncontradicted.
Lauver•s, Miller's and Kopsic's testimony that on February 6,
1993, the entire highwall face was covered with loose materials,
and that 75 percent of the highwall face on February 6, 1993 was
covered by loose rocks is uncontradicted.
Section 107(a) of the Act provides as follows:
If, upon any inspection or investigation of a
coal or other mine which is subject to this
[Act ] , an authorized representative of the
Secretary finds that an imminent danger
exists, such representative shall determine
the extent of the area of such mine
throughout which the danger exists , and issue
an order requiring the operator of such mine
to cause all persons, except those referred
to in Section [104(c)), to be withdrawn from,
and to be prohibited from entering, such area
until an authorized representative of the
Secretary determines that such imminent
danger and the conditions or practices which
caused such imminent danger no longer exists.
The term "imminent danger" is defined in Section 3(j) of the
Act to mean "· •• 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).
To support a finding of imminent danger, the inspector must
find that the hazardous condition has a reasonable potential to
cause death or serious injury within a short period of time. An
inspector abuses his discretion when he orders the immediate
~ithdrawal of a mine under Section 107{a) in circumstances where
there is not an imminent threat to miners. Utah Power & Light
Co., 13 FMSHRC 1617 (1991).
As the Commission has recently stated :
[A]n inspector must be accorded considerable
discretion in determining whether an imminent
danger exists because an inspector must act
with dispatch to eliminate conditions that
create an imminent danger.

43 9

Clearly, the inspector is in a precarious
position. He is entrusted with the safety of
miners' lives, and he must ensure that the
statue is enforced for the protection of
these lives. His total concern is the safety
of life and limb . . . . We must support
the findings and the decisions of the
inspector unless there is evidence that he
has abused his discretion or authority.
(Citation omitted.] Wyoming Fuel Co., 14
FMSHRC 1282, 1291.
The conditions observed on February 6 constituted an
imminent danger to persons entering the pit. Rocks and stones
were falling from the highwall. Loose materials covered the
highwall. Inspector Lauver had Inspector Miller watch the wall
while he entered the pit to make sure rocks did not fall on him,
and Lauver stayed at least 15 feet away from the highwall.
The
day before, falling rocks had already killed one miner, and
seriously injured a second miner. I find that the threat of
serious injury was clear at the time this order was issued.
Accordingly, it is concluded Lauver did not abuse his discretion,
and the withdrawal order under Section 107(a) was properly
issued.
B.

Citation Numbers 3490036, 2892100, 3490202, 3490203

Citation No. 3490036 alleges a violation of 30 C.F.R.
l05(a) which, as pertinent, requires that hazardous areas of a
highwall shall be scaled before work is performed. Citation No.
2892100 alleges a violation of 30 C.F.R. § 77.1000 in that the
operator failed to follow at its ground control plan ("Plan") ·.
The plan requires the operator to remove loose material, or to
barricade the area next to the highwall if unable to remove loose
material. Citation No. 3490202 alleges a violation of 30 C.F.R.
§ 77.1713 which, in essence, requires the examination of the
highwall for hazardous conditions. Section 77.1713, supra,
further provides that any hazardous condition noted shall be
reported and corrected. Citation No. 3490203 alleges a violation
of 30 C.F.R. § 77.1501, which, as pertinent, requires the
inspection of a highwall 25 feet on both sides of each the
drilling site, at least once a shift, and the removal of loose
material. Hence, in deciding whether these violations have been
established, it must first be evaluated whether, on February 5,
1991, the highwall contained a hazardous area or loose material.
§

In essence, the testimony of MSHA and DER inspectors that on
February 6, 1991, there were numerous loose materials on the
highwall, materials were falling from the highwall, and the

44 0

highwall contained cracks and mud slips, was not contradicted or
impeached. 6 Specifically, Lauver estimated that loose material
covered, at a minimum, 75 percent of the highwall. He estimated
that more than an 100 pounds of material was sticking out of the
highwall. I conclude, based upon this ·uncontradicted testimony
that on the morning of February 6, the highwall contained loose
material, and was hazardous.
In order for Citation Numbers 3490036, 2892100, 34906202,
3490203 to be sustained, it must be initially determined whether
it is more likely than not that these conditions existed the
previous day. In analyzing this issue, pursuant to the parties'
stipulation, I rely exclusively on an analysis of the opinions
proffered by Wu and Scovazzo.
1.

Freeze/Thaw Effect

Both Wu and Scovazzo agreed, in essence, that hazardous
conditions are, created by a freeze/thaw effect. Essentially,
they explained \~hat as result of a freeze the water present in
the cracks and crevices of a highwall is transformed to ice. As
the water changes into ice, it expands, and rocks in the highwall
are pushed away from each other, and from the highwall. While
the highwall remains frozen, the ice holds these particles and
rocks in place. However, once the temperatures have been above
freezing long enough melt the ice holding the rocks to the
highwall, the rocks then lose their support and will fall. Wu
and Scovazzo also agreed that 2 to 3 days of temperatures above
freezing would be unnecessary to cause rapid deterioration of a
highwall that had been previously been frozen. They also agreed
that there is no linear relationship between changes in
temperatures from below to above freezing, and changes in the
conditions of a highwall.

6

None of Respondent's witnesses observed the conditions of
the highwall on February 6. Although Respondent's witnesses
Scovazzo, Todd and Woods, opined that, in essence some of the
materials depicted in the photographs (Exhibit G2) were not
hazardous or loose, it is significant to note that Scovazzo
conceded that circle, 11 3 11 in photograph Exhibits 211, and 2mm
depicts loose rock, and Exhibit 2h depicts a crack. He also
admitted that the pictures contain more loose rock than those
that are circled. Todd recognized the existence of cracks, and
opined that the material circled as "C" was loose rock. In the
same fashion, Woods indicated that the item depicted as 11 1"
within circle "C" looked loose. Both Todd and Woods conceded
that the material depicted as "M" looked loose.

44 1

2.

Scovazzo's Analysis

In essence, according to Scovazzo, based on the weather data
recorded by Krise, it is probable that the conditions observed on
February 6 had developed overnight. In this connection Scovazzo
noted the period between January 21 and January 27, in which the
temperature remained below freezing, followed by ~ five day
period between January 28 and February 2 when the temperature
fluctuated between above and below freezing. He opined that by
February 5, the highwall had only thawed from ·a few inches to a
foot depending upon exposure to sun and the roughness of the
surface. He said that the night of February 5 was "very
warm" (Tr. 162, August 24, 1993) which could have caused a
dramatic thaw on the highwall.
He noted that by the morning of
February 6, the temperatures had been above freezing for at least
3 days.
In reaching his conclusion that there was no substantial
thaw on the highwall until February 6, Scovazzo took into account
the following notation by Krise relating to February 6: "snow 99
percent gone." (Ex G-22). Scovazzo indicated that, in general,
if loose material covered 75 percent of a highwall it is probable
that these conditions developed in 24 hours. However, he
indicated that, assuming the observers were truthful regarding
the lack of any hazardous conditions February 5, on the highwall
at issue, he could not say that it was not probable that these
conditions developed in 24 hours.
3.

Wu's Analysis

Wu explained that cracks in rocks develop naturally, and are
revealed when the highwall is developed. He also said that
exposure to weather elements causes deterioration of materials on
the highwall. Also, with the development of a highwall,
additional cracks are developed as a consequences of the auger
mining which causes the strata to readjust itself. Wu also said
that it impossible to predict when a loose rock will fail out of
the highwall. None of this testimony has been impeached or
contradicted, and I accept it.
Wu opined that a 2 to 3 day thaw made visible erosion that
had previously occurred. In essence, he further opined that the
conditions depicted in Exhibit 2 possibly developed in one day,
depending upon how extreme th~ change was between a thaw and
freeze, but that it was not probable. In this connection, Wu
reviewed the weather data recorded by Krise. He opined that the
data did not indicate a sudden frost or dramatic rise in
temperatures prior to February 6.

442

4.

Evaluation of the Experts' Analyses

Scovazzo's opinion that the conditions observed on
February 6 developed overnight, is predicated, inter alia,
upon the presence of a significant thaw resulting from a 2 to 3
days of high temperatures prior to February 6, "a very warm"
night on February 5, (Tr. 162, August 24, 1993) and a notation by
Krise on February 6 as follows: "snow 99% gone." (Ex. G-22)
This latter notation led him to conclude that there was no
substantial thaw until February 6. However, Krises' records do
not indicate how much snow had melted during the day of February
2, or on February 3, 4 and 5 all of which days the temperatures
were above freezing. 7 Thus, in the absence of such data,
Scovazzo's reliance upon the notation of February 6 that the
snow was 99 percent gone, to establish that a significant thaw
had occurred overnight on February 5 is not well founded. Thus
the probative weight of his conclusions are diminished. Further,
the weather d~ta does not specifically, convincingly, establish
any dramatic cpange in the 24 hours preceding February 6.
Indeed, on February 5, the temperature remained above freezing,
and fluctuated between 34 and 58 degrees. Also, Krises' weather
data does not indicate any dramatic rainfall on February 5. The
measured rainfall of .01 inches was described by Scovazzo as
having an insignificant effect on the highwall conditions. 8
Since Scovazzo•s testimony has some diminished probative
value, I assign more weight to the analysis and opinions of Wu.

7

On February 5 the temperature had reached an high of 58
degrees. However, the day before it had reached 56 degrees, and
the day before that it was 50 degrees . Also, Krises' data
indicated that although in the 24 hour period of February 2, the
low was 28 degrees, at 8:00 a.m. the temperature was 33 degrees
and it reached a high of 46 degrees at 6:20 p.m . At 11:03 p.m.
the temperature was 38 degrees. The temperatures on February 3,
4 and 5 were all above freezing. Thus, by the morning of
February 5 the temperature had been above freezing for at least
two 24 hour periods, i.e. February 3, and 4. In addition, it is
likely the thaw had extended back to 8:00 a.m., February 2.
8

In this connection, I accord considerable weight to the
precipitation data . recorded by Krise, as it is based upon
contemporaneous measurements.
I accord not much probative value
to the subjective recollection of various witnesses of the
quality or quantity of rainfall that occurred more than two years
prior to their testimony.

443

5.

The phvsical condition of the highwall on February 5.

The testimony of the inspectors that, on February 6, at a
minimum, loose materials covered 75 percent of the highwall, was
not contradicted or impeached. The photographs in evidence
(Exhibit G-2) do not depict all of the loose material. Scovazzo
agreed that the two of the items noted by Wu in the photographs
depict loose rock. He also recognized a crack. In the same
connection, Todd recognized the existence of loose material in
the area circled "C". Woods indicated that the area marked "l"
in circle "C" looked loose. Both Woods and Todd recognized loose
rock in area marked "M" in the photographs. Also recognized were
cracks. Todd and Woods both maintained to indicated that the
loose rocks and cracks that they saw depicted on the photographs
were not in existence on February 5.
Based upon all the above, I conclude that it is more likely
than not, that at least some of the hazardous and loose material
observed on the highwall on February 6 were in existence and
evident the day ~efore on February 5.
6.
Citation Number 3490036 {violation Section 77.lOOSCa)
supra Citation Number 2892100 (violation of Section 77.1000
supra) . 9
I accept the testimony of Respondents• witnesses, based upon
observations of their demeanor, that the highwall had been scaled
as it was being developed. Essentially, it appears to be the
position of Respondent that the highwall had been scaled when
needed, and that scaling was not required if no loose or
hazardous materials were observed in the days prior to accident.
In this connection,· it is Respondent's position that the highwall
was stable prior to the accident. Inasmuch, as I have concluded
that, prior to the fall of the rock at issue on February S, the
highwall did contain loose and hazardous materials, and since
there is no evidence that these materials had been scaled, or
that the area in question had been barricaded, I conclude that
Respondent herein did violate it's ground control plan, · section
77.1000 supra, and Section 77.lOOS(a) supra.

9

Section 77.1000 supra, provides, in essence, that the
operator shall follow its Ground Control Plan ("Plan").
Respondent's Plan provides, as pertinent, that any loose observed
material is to be taken down. If it is unable to remove loose
material the area next to the highwall is to be barricaded.

444

a.

Significant and Substantial

The Commission has set forth the elements required to
establish a significant and substantial violation in Cement
Division, National Gypsum Co., 3 FMSHRC 822, (April, 1981). A
violation is properly designated as significant and substantial
"if, based on the particular facts surrounding that violation,
there exists a reasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonably serious
nature." Id. at 825.
In Mathies Coal Co., 6 FMSHRC 1, 3-4
(January, 1984), the Commission explained:
In order to establish t hat a violation of a
mandatory standard is significant and
substantial under National Gypsum the
Secretary must prove: (1) the· underlying
violation of mandatory safety standard; (2) a
discrete safety hazard -- that is, a measure
of danger to safety -- contributed by the
violation; (3) a reasonable likelihood that
the hazard contributed to will result in an ·
injury; and (4) a reasonable likelihood that
the injury in question will be of a
reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021 (December,
1987) (approving Mathies criteria). The third element of the
Mathies formula "requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result
in an event in which there is an injury". (U.S. Steel Mining co . ,
6 FMSHRC 1834, 1836 (August, 1984)).
Some rocks fell from the highwall at issue on February s,
1991, killing one miner and permanently disabling a second miner.
These injuries occurred as result of loose material falling from
the highwall. An auger crew worked eight hours a day· underneath
this highwall. If the area had been adequately scaled, such
loose material would have been removed in the scaling process.
If the area had been barricaded, no miner would have been
standing below the highwall when loose materials fell. The
failure to scale the highwall left loose materials, cracks and
other unstable features on the highwall. The failure to
barricade allowed persons to work near these unstable features.
The violation allowed the exposure of miners to the discrete

44 5

safety hazard of falli~g materials. Miners were exposed to these
hazards for an entire working shift. Since a fatal accident
occurred, I conclude that the reasonable likelihood of an injury
from these falling materials, and a resulting serious injury have
been demonstrated.
For essentially the same reasons, the violation of the
ground control plan is also to be found to be significant and
substantial.
7.

Citation No. 3490202 <violation of Section 77.1713(a))

section 77.1713(a) requires that a certified person inspect
a surface coal mine daily, and that hazardous conditions be
reported and corrected as a result of this inspection.
John Woods, a machine operator, was the certified examiner
for L & J. He w~s the only certified person examining the mine,
as no certified person worked for C.B. Holms. Woods had the
responsibility to report hazardous violations at this highwall,
and to correct them. Woods and Spencer testified that they
examined the area in question.
The credible evidence established that hazardous loose
unconsolidated materials existed on the highwall on the morning
when Woods made his examination (II(B), infra). Woods did not
note these hazardous conditions in the examination book, and did
not have them corrected. Instead, his entry in the examination
book states the highwall was "OK". Therefore, the operator
violated Section 17.1713.
significant and Substantial

Essentially for the reasons set forth above (II(B) (b) (a)
infra)), I conclude that the violation was significant and
substantial. Specifically, I find that failure to note and
correct the loose materials contributed to the hazards caused by
presence of these materials in an area where persons were
permitted to work, and in the ordinary course of mining would
continue to work. ·
8.
Citation Numbers 3490203 (violation of Section
77.lSOlCal and Citation 3490204 (violation of Section
77.lSOlCb)).
Lauver issued Citation Number 3490203 alleging a violation
of Section 77.lSOl(a) supra, which requires that a certified
person shall inspect a surface coal mine for an distance of 25

44 6 .

feet on both sides of each drilling site, at least once during
each coal producing shift, and all loose material shall be
removed, and the results recorded.
Woods testified that he made an examination of the highwall
on February 5 . He was not certain of the time of the day when he
made his inspection. He said that in his opinion the condition
of the highwall was safe, and he did not see any dangerous loose
material, or cracks. Woods said that he recorded the examination
in the "job book." (Tr. 208, May 18, 1993).
Spencer testified that he examined the highwall "at least
two times, sometim~s three times, maybe even more than that."
(Tr. 95, May 19, 1993). He indicated that on February 5, he
examined the highwall where the accident o~curred at least three
times . He said that his examination would have been from 7:00
a.m. to 12:30 p.m. He said that he did not observe ioose
material or roc~s, and did not record his examination .
As set forth above, (II(B) infra)), I have found that it was
more likely thari not that the hazardous conditions observed on
February 6 existed on February 5. I also have found these should
have been noted in an examination. Also, as discussed above,
II(B) infra, the weather records show a period of thawing and
freezing for a week prior to February 5, 1991. Section
77.150l(b) supra requires in essence that a certified person
"frequently" inspect the face of the highwall in a period of
freezing and thawing. Neither Woods nor Spencer testified to any
examination made on the basis of the thawing and freezing that
occurred a week prior to February s, 1991. Nor was any such
examination entered and recorded during this time period.
For these reasons, I conclude that Respondent did violate
Section 77.150l(a) and Section 77.l50l(b).
9.

Citation No. 38406001.

Citation No. 3846001 alleges a violation of 30 C.F.R.
77.1001-1 which requires that an operator shall file revisions
to its ground control plan. The last ground control plan that
the operator filed with MSHA did not indicate any auger mining
taking place at the No. 3 Pit at issue. There is no evidence
that any revised plan was filed with MSHA. I, therefore,
conclude that Respondent did violate Section 77.1000-1 as
alleged.
§

447

10.

Order No. 38490201

None of the auger crew who had been employed by Holms prior
to February s, had received any hazard training within the
immediate preceding 12 month period. Gary Pershing, who had
started to work for Holms on February s, was spoken to only by
Todd, who was not an MSHA certified trainer, for about 15 to 20
minutes, and was told to watch the highwall and specific
equipment. Pershing did not receive any training from any MSHA
certified trainer. Lauver issued an order alleging a violation
of 30 C.F.R. § 48.31. Section 48.3l(a) provides, as pertinent,
as follows: "Operators shall provide to those miners, as defined
in § 48.22(a) (2). (Definition of miner) of this subpart B, a
training program, before such miners commence their work duties."
The training program includes hazard recognition and avoidance.
The obligation of an operator to train under Section 48.31
supra, pertains ·;to the limited class of miners "as defined in
Section 48.22(a) (2}." section 48.22(a} (2} provides, as
pertinent, that the term "miner", for purposes of Section 48.31
supra means a person working in a surface mine "· •• excluding a
person covered under paragraph (a} (1) of this section • . •
"
Hence, the obligation of an operator to train a miner under
Section 48.31 excludes the class of persons covered under
paragraph (a) (l) of Section 48.22. Section 48.22(a} (l}, after
stating that a "miner" means "for purposes of Section 48.22
through Section 48.30" a person working in a surface mine who is
engaged in the extraction and production process provides as
follows "short-term specialized contract workers·, such as
drillers and blasters, who are engaged in the extraction and
production process . • • may in lieu of subsequent training for
each new employment, receive-training under Section 48.31 (Hazard
training.}" Since all members of the auger crew were working in
a surface mine, and were engaged in the extraction and production
process, they fell within the meaning of the term "miner" as
forth in Section 48.22(a)(l}, for purposes of training as
provided in Section 48.23-48.30. As such, they were "covered"
under paragraph (a) (l} of Section 48.22 and hence, pursuant to
Section 48.22(a} (2), were excluded from the class of miners for
whom Section 48.31 hazard training is required to be provided by
operator.
Petitioner argues, in essence, that since the auger members
crew were short-term specialized contractors, they were
"eligible" for hazard training under Section 48.31. However,
applying the clear language of Section 48.22, since these
individuals were engaged in the extraction and production
process, they were within the class of miners to whom, training
should be provided in Section 48.23-48.30, but they "may in lieu

448

of subsequent training for each new employment receive retraining
under hazard training." (Emphasis added.) As such, an option is
provided for these individuals, to "receive" training under
Section 48.• 31 "in lieu of" training under Section 48.23-48.30.
There is no obligation for operators to train these persons under
Section 48.31. Hence, since the auger crew members were not in
the class of miners to whom L & J was required under Section
48.31 to train regarding hazards, L & J did not violate Section
48.31, and accordingly Order No. 3490201 shall be dismissed.
11.

Penalty

l.
The effect of a penalty on the L & J's ability to
continue in business.
Douglas Shimmel, a licensed, CPA, prepared a review of
L & Js financial statements based on L & Js cash recei pts, and
distributions. This report is not an audit, and it is not based
upon a review of L & Js actual bills. Nor did Shimmel probe the
accuracy of statements provided him by L & J employees, nor did
he test L & Js internal control. Shimmel indicated that, in
general his report is substantially less in scope than an
examination in accordance with generally accepted accounting
standards.
Shimmel noted that, as of December 1992, the difference
between current liabilities and current assess was $328,000.00.
He said that this constituted an increase over the difference
that had resulted in 1991. This led him to conclude that the
company may be unable to continue as a going concern.
Shimmel indicated that in 1992 the net cash flow from
operating expenses was $366,435.00. He was concerned that this
amount does not reflect the decreasing working capital based on
the difference between current liabilities .and current asset
which is based in part, on a increase in accounts payable in
1992, compared to 1991, and a correspondent decrease in accounts
receivable in those years. 10

According to Shimmel, L & J's financial condition would
be even worse if the liability for land reclamation is taken into
account, and included its current liabilities . I do not consider
this obligation to be a part of L & J financial picture.
According to William Maines, a professional engineer who prepared
an estimate of reclamation liability, (Exhibit R4), some
reclamation cost are incurred when mining starts. The costs that
he calculated were based on the cost to all of L & Js mines,
assuming that they would be shut down. As of December 31, 1992,
10

449

In general, the operator bears the burden of establishing
that payment of civil penalty would adversely effect its ability
to continue in business (See, Sellerburg Stone Company v. FMSHRC
736 F2d 1147, 1153, n.14 (7th cir. 1984) citing, Buffalo Mining
Company, 2 IBMA 226, 247-48-251-252 (1973)). In the instant
case, it significant to note that the evidence adduced by L & J
consists of a report prepared by its' accountant. The report is
not an audit, and does not comply with general accounting
principles. Further, this report indicates that income and net
profit have risen in the last two years. Also, the tax returns
filed by L & J show a profit. Further, L & J's revenue is in
excess of a million dollars. In view of these facts, I conclude
that it has not been established that the imposition of penalties
would significantly impair L & J ability to continue in busi ness.
2.

Other Factors set f orth in Section llOCil of the Act.

I find that the violations herein contributed to a fatality,
and to serious 'injuries suffered by another miner. Hence, I
conclude that tne v iolations were of a very high level of
gravity. Also, above I have concluded that it is more likely
than not that some of the conditions that were observed as being
hazardous on February 6, had existed on February 5. Hence, they
should have been observed and reported. As such; . I conclude that
Respondent's negligence was of more than a moderate degree.
Taking all of these factors into account, I conclude that the

only at the Garmantown No. 2 Mine was mining completed. L & J's
other mines, were .considered active. Hence, it has not been
established that the figures set forth by Maines for reclamation
are obligations in full in the category of a current liability,
as there is not adequate evidence of the full amount of a
reclamation, or indeed any specific amount, to be satisfied
within the year after December 31, 1992.

45 0

following penalties for the following citations and orders are
appropriate: Number 3490036-$50,000; Number 2892100-$25,000;
Number 3486001-$500; Number 3490202-$11,000; Number 3490203-$500;
and 3490204-$500. 11
ORDER
It is ORDERED as follows:
1.

Order No. 3490035 be sustained.

2.

Order No. 3490201 be dismissed.

3.
Respondent shall within 30 days of this Deci sion,
pay a civil penalty of $87,500.00.

~isb~

Administrative Law Judge

Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of
Labor, 1448 0 Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)
Laurance B. Seaman, Esq., Gates & Seaman, North Front Street,
P.O. Box 846, Clearfield, PA 16830 (Certified Mail )
Henry Chajet, Esq., Jackson & Kelly, 2401 Pennsylvania Avenue,
N.W., Suite 400, Washington, DC 20037 {Certified Mail)
/efw

11

The facts supporting these violations, Citation Numbers
3490203 and 3490204, are the same as those that support the
violations cited in Citation Numbers 3490036 and 2892100. The
high level of gravity, and Respondents negligence have been
considered by me in jinding a significant penalty to be
appropriate for the violations set forth in citation numbers
3490036 and 2892100. Accordingly, I find that, to avoid imposing
a double penalty for essentially the same violations, it is
appropriate to set a substantially lower penalty for the
violations alleged in citation numbers 3490203 and 3490204.

4 51

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

FEB 2 51994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 93-370-M
A. C. No. 09-00265-05516

v.

Junction City Mine
BROWN BROTHERS SAND COMPANY,
Respondent
DECISION
Appearances:

Michael K. Hagan, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia~ for
Petitioner;
Carl Brown, Steve Brown and Greg Brown, Brown
Brothers sand Company, Howard, . Georgia, RI:Q se,
·for Respondent.

Before:

Judge Hodgdon

This case is before me on a petition for assessment of civil
penalty filed by the Secretary of Labor against Brown Brothers
Sand Company pursuant to Sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § § 815 and 820. The
petition alleges a violation of the Secretary's mandatory safety
standards. For the reasons set forth below, I find that Brown
Brothers committed the . violation as alleged.
The case was heard on February 1, 1994, in Butler, Georgia.
Inspector Steve Manis testified on behalf of the Petitioner.
Mr. Jessie J. Lucas testified for the Respondent.
FINDINGS OF PACT
Inspector Manis inspected Brown Brothers Sand Company on
March 25, 1993. During his inspection, he observed that the
guard on the tail pulley for the railroad car conveyor belt was
not in place, but was lying on the ground. As a result, he
issued Citation No. 3603315 which stated that: "The guard for
the R R car belt conveyor tail pulley was left off. R R car
loading area of the tunnel" (P.Ex. 2). Inspector Manis issued
the citation as a violation of Section 56.14112(b) of the
Secretary's Regulations, 30 C.F.R. § 56.14112(b).

452

Inspector Manis returned to Brown Brothers on . April 15,
1993. At that time, he saw that the tail pulley guard had been
replaced and terminated the citation.
FURTHER PilfDINGS OP PACT
AND

CONCLUSIONS OP LAW

Section 56.14112(b) 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." In this case, there is no doubt that the
tail pulley guard was not securely in place (Tr. 14, 50) and that
testing or making adjustments were not being performed (Tr. 17,
37, 50). However, there was a question raised at the hearing as
to whether the belt was in operation.
Inspector Manis testified that the belt was in operation and
loading sand into a railroad car when he observed the violation
(Tr. 21-22, 3i). Mr. Lucas testified that the belt was not
running while Inspector Manis was in the area of the conveyor
(Tr. 34-36). On the other hand, Mr. Lucas also testified that he
did not see Mr. Manis inspect the conveyor belt because he
(Lucas) was not in the area of the belt while Mr. Manis was
inspecting and that sand may have been loaded on that day
(Tr. 34-37) .
Pact of Violation

I conclude that the conveyor belt was in operation when
Inspector Manis observed the missing guard. The inspector's
testimony is unequivocal on this point and was not tested or
challenged at the hearing. Conversely, Mr. Lucas' assertion that
the belt was not running is diminished by the fact that he did
not see the inspector examine the belt and by the fact that sand
had probably been loaded that day. Consequently, he does not
know exactly when the citation was issued and he does not
directly contradict Manis' testimony or make what the inspector
said that he saw impossible to have occurred.
I find that on March 25, 1993, the tail pulley on the
railroad car conveyor belt was not securely in place; that the
belt was in operation; and that no testing or adjusting of the
belt or tail pulley, requiring removal of the guard, was being
performed. Accordingly, I conclude that Brown Brothers violated
Section 56.14112(b) of the Regulations as alleged.

453

Negligence
The inspector found that this violation resulted from Brown
Brothers' moderate negligence. In view of the fact that Brown
Brothers had previously been cited and penalized for this exact
same violation [Secretary v. Brown Brothers Sand Company, 9
FMSHRC 636 (March 1987, Judge Koutras)] and the fact that the
guard could have been off for as long as two days (Tr. 50), this
would seem to be a generous assessment of the degree of Brown
Brothers' negligence. However, it does not appear that anything
would be gained by changing the degree of negligence at this
stage, so I conclude that the violation in this case resulted
from Brown Brothers' moderate negligence.
CIVIL PENALTY ASSBSSKIN'l'
With regard to the criteria to be considered when assessing
a civil penalty, which are set out in Section llO(i) of the Act,
30 u.s.c. § 820(i), the parties have stipulated that: (1) Brown
Brothers is a small operator employing nine to ten people;
(2) the payment of the proposed civil penalty will not adversely
affect Brown Brothers' ability to continue in business; (3) Brown
Brothers has a history of nine prior citations during the period
between September 25, 1990, and September 24, 1992; and (4) the
citation in this proceeding was time abated in good faith by
Brown Brothers (Tr. 4).
The Secretary has proposed a penalty of $50.00 for the
violation in this case. In view of the information above, as
well as the fact that the inspector found that an injury was
unlikely to result from this violation and that Respondent's
negligence was moderate, I conclude that the proposed penalty
of $50.00 is appropriate.
ORDER
Citation No. 3603315 is APPIRMED as written. Brown Brothers
Sand Company is ORDERED to pay a civil penalty of $50.00 for this
violation within 30 days of the date of this decision. On
rec~ipt of payment, this case is DISMISSED.

\/.~~
T. Todd Hodgdon
Administrative Law Judge

454

Distribution:
Michael K. Hagan, Esq., Office of the Solicitor, U. S. Department
of Labor, 1371 Peachtree st., N~E., Room 339, Atlanta, GA 30367
(Certified Mail)
Carl Brown, Brown Brothers Sand Company, Highway 90, Box 82,
Howard, GA- 31039 (Certified Mail)
/ lbk

455

nDBJtAL IUD smn &Jn) BBALTll JtBVZBW COJOITSSIO•
OFFICE OF ADMINISTRATIVE LAW J\llGES
2 SKYLINE, 10th FLOCllt
5203 LEESBUltG PIKE
FALLS CHURCH . VIRGINIA 22041

~FEB 2 5 1994
SECRETARY OF LABOR,
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

JIM WALTER RESOURCES, INC.,
Respondent

. CIVIL PENALTY PROCEEDING
Docket No. SE 92-408
... A.C.
No. Ol-01401-03905R
.
:

No. 7 Mine

.
DECISION

Appearances:

William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama, for
the Petitioner;
R. Stanley Morrow, Esq., Jim Walter Resources,
Inc., Brookwood, Alabama, for the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

This proceeding initialy concerned proposals for assessment
of civil penalties filed by the petitioner against the respondent
pursuant to section llO(a) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 820(a), seeking civil penalty
assessments for twenty (20) violations of certain safety
standards found in Parts 75 and 77, Title 30, Code of Federal
Regulations. The parties settled nineteen (19) of the
violations, and I issued a Partial Settlement Decision on June 3,
1993, approving the settlement. The parties were unable to
settle the remaining violation, section 104(d) (1) "S&S" Citation
No. 3013115, May 20, 1991, alleging a violation of mandatory
safety standard 30 C.F.R. § 75.202, and a hearing was held in
Birmingham, Alabama. The parties filed posthearing briefs, and I
have considered their arguments in the course of my adjudication
of this matter.
Issues
The issues presented in this case are (1) whether the
condition or practice cited by the inspector constitutes a
violation of the cited mandatory safety standard, (2) whether
the alleged violation was "Significant and Substantial" (S&S),
(3) whether the alleged violation was the result of an
unwarrantable failure by the respondent to comply with the cited
4 56

standard, and (4) the appropriate civil penalty to 'be assessed
for the violation, taking into account the civil penalty
assessment criteria found in section llO(i) of the Act.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of
1977, Pub. L. 95-164, 30 U.S.C. § 801, §t
~·

2.

30 C.F.R.

3.

Commission Rules, 29 C.F.R.

§

75.202.
§ ~ ~·

Stipulations
The parties stipulated as follows (Tr. 39-40):
1.

The .respondent is subject to the jurisdiction
of t~e Act, and the presiding judge has
jurisdiction to hear and decide this matter.

2.

The respondent is a large mine operator and
the payment of a civil penalty assessment for
the violation will not adversely affect the
respondent's ability to continue in business.

3.

The issuance of the section 104(d)(l)
citation was procedurally correct in that the
mine was on a "(d)" chain.

4.

The respondent has an "average" history of
prior violations for an operation of its
size.
Discussion

The section 104(d) (1) "S&S" citation No. 3013115, issued on
May 20, 1991, by MSHA Inspector Terry Gaither, citing a violation
of 30 c.F.R. § 75.202, states as follows:
People on the No. 2 longwall, including managers, were
traveling in the cross-cut between No. 3 and No. 4
entry inby the shields and the gob line. The longwall
face was approximately 10 feet outby the outby corner
of the intersection.
The cross-cut was inby spad
No. 7677, 1 cross-cut. The traveled area was not
provided with additional supports and or otherwise
controlled to protect persons from the hazard related
to falls from roof or ribs.

457

Petitioner's Testimony and EVidence
MSHA Inspector Terry Gaither, testified as to his prior
mining industry experience of 22 years, including his experience
as an MSHA inspector. He confirmed that he is currently employed
as a health specialist conducting underground respirable dust and
noise surveys, and has engaged in this work for the past four
years (Tr. 45). He confirmed that he had previously inspected
all of the respondent's lonqwall sections during reqular
inspections~ as well as lonqwalls in other areas (Tr. 46-47).
Mr. Gaither stated that he was at the mine on May 20, 1991,
conducting a respirable dust technical investigation in
connection with a dust plan submitted by the respondent (Tr. 48).
Referring to a "representative" sketch of the number 2 lonqwall
area (Exhibit G-1), Mr. Gaither explained the basic operation of
the lonqwall, including the mining of the coal, the advancement
of the face, and the operation of the shields as the face is
advanced (Tr. 49-52). He confirmed that when the roof falls
behind the shields as they are advanced, it will always fall all
the way to the yield pillars inby and outby the area identified
. as crosscut A on Exhibit G-1 (Tr. 52). The yield pillars
themselves remain intact depending on the yield and pressures,
but they become "sloughed and oval shaped". He confirmed that
many times, the roof fall will "ride over into the crosscut", and
on many occasions he has observed it "fall plumb into the
intersection". He further explained as follows at (Tr. 53-54):
You know, the question here is not if the roof is going
to fall, but when is it going to fall in relationship
to where the face and the shields are at because this
thing is moving.
You wouldn't have any danger if the shield tips -- this
tip right here and right here, you wouldn't have any
problem using Crosscut A. But as that thing comes on
out, the roof behind the shields is continuously
falling.
I think when I read my notes the face was approximately
ten feet outby, the outby corner on this yield pillar.
The flat surf ace of this shield is approximately
13 foot the part that goes against the roof.
After that the shield breaks down in the back and the
down to the base. Usually your roof at that break line
-- I consider that the break line of a temporary
support, and anything beyond that break line on that
shield is subject to fall into the intersection. And

4 58

when that break line of this shield qets into this
intersection there's no additional support. And that
intersection is hazardous to anybody walkinq throuqh
there to roof bolting and the roof falls.
Mr. Gaither confirmed that he has observed a roof fall in
between the face and the tip of the shields, and he explained
what occurs during a "squeeze" when the roof falls between the
coal seam and shields (Tr. 58). He confirmed that the entry is
been bolted as it is driven and advanced, and that the roof falls
behind the anchorage of the roof bolts as the roof begins to fall
behind the shields (Tr. 59).
Mr. Gaither stated that he reached the lonqwall face by
traveling up the number 3 entry and into intersection B, but did
not go into crosscut A. He could see the gob in back of the
shields that had advanced into the intersection, and he did not
enter crosscut A "because it was hazardous due to roof rib rolls
and subject to ,fall" (Tr. 61). He could see from intersection B
that the roof had fallen behind the shields, and he observed no
additional roof ·support or cribs in crosscut A. From his
position at intersection B, he observed an electrician, the
shear operator, the longwall manager, and the deputy mine manager
travelling in crosscut A. After coming through the intersection
he instructed the miners to block it off and quit using the
crosscut. He then proceeded up the number 4 entry and observed
that the roof had fallen in behind the shields, but he could not
see "how tight behind" the shields it had fallen, and did not go
into the area (Tr. 62).
Mr. Gaither stated that he has "pulled pillars" for years
and knows what a "break line" is. He stated that once the shield
advanced "out that far", crosscut A would be inby the break line
and the roof would be subject to fall, and the crosscut would be
hazardous for people to travel through due to rib rolls or
fallinq roof. The potential rib rolls would be caused by the
inby or outby ribs of the yield pillars sloughing off, and large
lumps of coal or rock can roll off into the walkway. He stated
that the pillar corners are usually oval shaped because of
sloughage due to the weight of the soft coal seam that cannot
support itself (Tr. 64).
Mr. Gaither confirmed that the miners in question were
traveling in the crosscut between the Number 3 and 4 entries inby
the shields and the gob line, which is the same as the break
line. He explained that a break line is the point at which the
roof is falling, and it could be over the shields or behind the
shields (Tr. 65). Since he did not go into crosscut A, he could
not state the exact loc~tion of the break line. He only knew

459

that the roof had fallen "tight in behind the shields". He
believed that a break line is predictable, arid that it is
normally behind ·the shields where ·the roof has normally fallen
(Tr. 66).
Mr. Gaither confirmed that the miners were not performing
any work inby the shields, were not removing any equipment
through crosscut A, and were simply walking through the area
(Tr. 67). He confirmed that he had recently observed (two weeks
before the hearing), that crosscut A and intersection B had
fallen in (Tr. 67). He also confirmed that he had observed roof
falls in "typical" crosscut A's many times (Tr. 68).
Mr. Gaither confirmed that he did not rely on any MSHA
policy in issuing the citation (Tr. 70). He believed that the
violation was an "unwarrantable failure" because "management
directing the work force, setting an example for the work force,
knew or should have know that the crosscut, once the shields were
advanced out that far, was hazardous to travel through, the
hazard being rib rolls falls from the roof" (Tr. 69-70). He
believed that cribs should have been ·installed as additional roof
support in crosscut A, and that this was "typically" done on a
longwall section.
on cross-examination, Mr. Gaither stated that crosscut A was
approximately 20 feet wide when it was driven, but was probably
25 feet wide due to mining of the longwall and rib sloughage
(Tr. 72). The face was approximately ten feet past the edge of
the rib. He did not observe that the miners were directly behind
the shield, but they were inby the break line in crosscut A
behind the cave part of the shield and inby the shields going
through crosscut A, and he marked their route of travel by a
green dash-line on exhibit G-1 (Tr. 76). He also identified what
he believed to be the location of the shield break line (Tr. 78).
Since he did not go into crosscut A, he could not determine the
actual crosscut roof conditions (Tr. 81).
Mr. Gaither considered the roof "break line" to be the cave
area at the back of the shield, and it was his opinion that when
the shield cave area, or backside of the shield, is in the
crosscut, it would be hazardous to travel in the crosscut without
additional support (Tr. 81-83). Assuming that cribs were
installed at each corner of the crosscut, if the shield break
line was outby the inby crib, he would still consider it
hazardous to travel the crosscut and would issue a citation, and
the respondent would have to submit a plan to use the travelway
under emergency conditions (Tr. 84-85).
Mr. Gaither confirmed .that his testimony concerning his
recent observation of crosscut A and intersection B pertained to
"typical and similar" longwalls, and that the existing areas as

460

of the time the citation was issued have been mined through and
are now inaccessible (Tr. 86-87).
In response to further questions, Mr. Gaither stated that
when he observed the miners travelling through crosscut A, they
were walking down the middle of the crosscut, inby the breakline
identified on exhibit G-1 (Tr. 94-95). Mr. Gaither reiterated
that he was not aware of any MSHA unwritten policy when he issued
the citation and never discussed with anyone that he should cite
a violation of 75.202 (Tr. 102). He explained his theory of the
violation as follows at (Tr. 103-104):
Q.

Okay. Let me understand your theory here
now. If I'm to follow your testimony,
whenever that shield gets into that crosscut
into the cave line -- the break line into the
crosscut, you would require them to take
additional roof support precautions, correct?

A.

If they wanted to travel through there.

Q.

If they wanted to travel through there?

A.

Yes, sir

Q.

Now, my question always assumes that
someone's going to travel through there. so,
theoretically, as that break line advances
through the crosscut, you would have them put
a series of cribs up there?

A.

would do my best to try to get them not to
-- to quit using it. Just go around the
other way.

Q.

To quit using it. All right. Fine. so,
this sentence in 75.202 that says that the
roof, face and ribs of areas where persons
work or travel shall be supported or
otherwise controlled
now, let me ask you
this:

\

I

Notwithstanding the extent of support, you
would interpret "otherwise controlled" to
mean that thou shall not pass?
A.

True.

Q.

So, the other means of controlling then would
be -- of controlling that area would be to
prohibit anyone from going through there
under any circumstances; is that correct?

461

A.

That's correct.

JUDGE KOUTRAS: Is that your understanding of his
position, Mr. Lawson?
MR. LAWSON: Judge, it's thou shalt not pass or thou
shalt install additional support to permit the passage.
Tommy Boyd, union safety person employed by the respondent
as a longwall helper and stage loader, testified that he has
21 years of underground mining experience, including approximately 19 years longwall experience. He confirmed that he works
on the number one longwall, but that in his experience, he has
observed roof falls and overrides caused by roof pressures in
typical areas such as those described in crosscut A and
intersection Bin this case (Tr. 109-114). He confirmed that his
testimony is not based on the conditions that existed on the day
that Inspector Gaither issued his citation (Tr. 115).
Petitioner's counsel conceded that this was the case, and that
Mr. Boyd was not aware of the prevailing conditions at that time,
other than the t~stimony that he has heard in this case, did not
know whether the\ roof would fall that day or not, and that his
testimony was offered to support the petitioner's position "that
this is what usually happens and what might happen", in order to
avoid roof falls by taking additional precautions (Tr. 116).
Mr. Boyd stated that on those occasions when he has observed
crosscut A and intersection B roof falls, the face has been in
the same relative vicinity of the inby corner of the yield as the
face position described by the inspector in this case, and that
depending on the roof conditions and override pressures, the roof
could fall in less than ten feet from the advanced face
(Tr. 119). He confirmed that the shields and pan line on the
longwall where he currently works are advanced one or two times
during the shift, but he has seen them advanced as much as nine
times on the night shift. He has also observed the shields being
lowered to advance the shields, and that the roof is broken and
drops until the shields are raised again (Tr. 121). He confirmed
that the respondent generally installs roof cribs, in addition to
roof bolts, in single seams as required by the roof control plan,
but does not do so in twin seams (Tr. 122).
On cross-examination, Mr. Boyd stated that there have been
two roof fall fatalities in the No. 7 mine, but they did not
occur on any longwall sections (Tr. 122).
Inspector Gaither was recalled by the presiding judge, and
he confirmed that he spoke with the management personnel who
walked through crosscut A and that they offered no explanation
and indicated that they would stop using the crosscut in question
(Tr. 124). He further explained the basis for his unwarrantable
failure finding (Tr. 124-125), and he assumed that mine

462

management knew that traveling through crosscut A was hazardous
(Tr. 136). Mr. Gaither confirmed that he had previously cited
the respondent under similar situations, and the petitioner's
counsel confirmed that the respondent paid the penalties and did
not litigate those citations (Tr. 136). Respondent's counsel
also confirmed that this was the case, but he did not know how
many previous citations have been issued (Tr. 136-137).
l(enneth Ely, MSHA health and safety group supervisor,
Birmingham, Alabama, sub-district office, testified that his
duties include the review of roof control plans submitted by mine
operators and the making of recommendations to the district
manager in connection with those plans (Tr. 141). He has worked
for MSHA since 1971, but had no prior underground mining
experience. He has served as an MSHA mine inspector and is still
an authorized representative of the Secretary.
He has also
inspected longwalls, has investigated roof falls, and has
received training in roof and roof control measures
(Tr. 142-144).
Mr. Ely was of the opinion that as the longwall face is
mined and advances, and the coal is removed, roof stresses are
placed in the area in front of the shields as the coal is
extracted from the number 3 and 4 entries (Tr. 151). Evidence of
these stresses would be cracks in the roof, or heaving of the
floor and sloughing of the ribs between the number 3 and 4
entries (Tr. 152). However, there is no way to predict when the
roof will fall behind the shields as the face is advanced
(Tr. 153). Further, there is no guarantee that the roof will not
"ride over" and fall into crosscut A, and he has witnessed
longwall ride over pressures in front of a longwall face
(Tr. 156). He further explained that the roof bolts in crosscut
A may not be adequate to support the crosscut to prevent it from
falling in because they are placed there during the initial
development and it is difficult to determine when the roof bolts
are subjected to roof pressures nearing their breaking point, and
many times crosscut A and intersection B fall in above the roof
bolt anchorage zone (Tr. 156).
Mr. Ely stated that with the face located. approximately ten
feet outby the inby the corner of the yield pillar, as depicted
in exhibit P-1, it would be an unsafe practice to travel through
crosscut A because of the stresses on the roof and the fact that
unplanned roof falls frequently occur in such areas
(Tr. 157-158).
Mr. Ely stated that he reviewed the respondent's
supplemental roof control plan approved after Judge Fauver's
decision in a prior case, and that MSHA permitted the respondent
to take equipment through crosscut A after additional roof
support was installed (Exhibit P-4, Tr. 159). He was not
familiar with any occasion where MSHA prohibited the respondent

463

from traveling a crosscut as long as it submitted a _plan to
gupport the crosscut (Tr. 161).
on cross-examination, Mr. Ely stated that he would consider
crosscut A to be unsafe to travel when the face line is in direct
line with the inby corner of the yield pillar· (Tr. 163-164). He
was of the opinion that the "break line" was the line that the
roof is expected to break on, and that the roof breaks up on top
of the shields rec;JUlarly (Tr. 166). He confirmed that the subdistrict manager's policy was that unrestricted travel through
crosscut A and intersection B was to be limited when the face
came in line with the inby corner of crosscut A and that no one
should be in the crosscut or the intersection (Tr. 168).
Mr. Ely stated that the gob roof area behind the shields
will always fall, but that with respect to crosscut A, and
whether or not it will always fall in, he stated as follows at
(Tr. 190):
can't--you know, I cant put a mark on it and say, no,
it's not going to fall and, yes, it is· going to fall.
But from our practice it is an unsafe area for travel
because it has a good degree of likelihood to fall.
I

*
Q.

*
Do

*

*

*

*

*

you know if crosscut A is going to fall

in?
A.

No, I don't.
fall.

I

can't testify that it will

Mr. Ely confirmed that pursuant to section 75.202, MSHA
would require additional roof support in crosscut A when such
areas are to be used as travelways and that a mine operator would
be required to submit an additional roof control plan explaining
how it intended to supply additional roof support (Tr. 192-193).
He explained how such a plan would be reviewed by MSHA and rwhat
would be expected of the operator submitting such a plan
(Tr. 199-201).
Respondent's Testimony and Evi dence
Greg Hendon, respondent's roof control manager, has a 1982

B.s . degree i n mining engineering from the University of Alabama,

and has been employed by the respondent since 1982. He was
admitted as a roof control expert without objection (Tr. 221). He
was of the opinion that the only way to determine if a crosscut
such as the one in question is adequately supported is to
visually observe it (Tr. 222). He stated that he is currently
engaged in a study at the mine and recently walked up .the mined
out No. 3 entry adjacent to the one where the violation was
464

issued for a distance in excess of 1,000 feet, and past seven
crosscuts. None of the intersections were caved in, but half of
the crosscuts had caved in, and half had not (Tr. 224).
Mr. Hendon stated that he could not determine from his
examination whether or not the face would cave in and that this
would be determined by the condition of the roof. He stated that he would not travel in those areas where the roof in the crosscut
intersection was bad or thin. In his opinion, the roof break
line is at the back of, the shield canopy which is designed to
break the roof off at the back of the canopy. In his opinion,
people should absolutely not go behind the shields (Tr. 225).

Mr. Hendon stated that the break line at the rib line would
"cave over to the edge of the pillar", and at some point it
possibly comes back into crosscut A (Tr. 226). He explained the
roof pressures that ride over the -shields as follows at
(Tr. 226-227) :
A.

Basically, what you have is as you remove the
coal,, the roof above the coal line bends down
behind you, which forms the gob, and that
bending of the roof is what causes your
pressures.
We've done a good bit of study putting
pressure cells in those -- into this coal
seam that's left and the yield pillar and the
stable pillar, and what we've found is that
as the face comes out at some distance outby
the face, you have a buildup of pressure.

Q.

So, your higher pressure would actually be
down below this face line?

A.

That's right.

Q.

so, there would be less pressure in
Crosscut A than there would be, say, in the
crosscut below Crosscut A?

A.

That's correct. And that is based on the
physical monitoring that we've done. We've
put pressure cells in there looking at the
leg pressures. We aqtually have pressure
gauges on the shields. And three or four
shields at the headgate are historically the
lowest pressurized shield that we have.

That's right.

Mr. Hendon further explained that the yield pillars are
designed and monitored not to accept additional loads and to
redistribute them. He agreed that excessive pressure on the roof

465

at crosscut A would cause it to fall in, and if the roof is still
standing behind the shields and has not fallen in, there is a
greater chance of pressure around the headgate. However, once
the roof caves behind the shields, "we always see a pressure
relief in front of us and beside us" (Tr. 228). In the instant
case, it was his opinion that the fact that the roof had· caved
right behind the shields indicated that there was less pressure
and less chance of a refall in crosscut A (Tr. 229).
Mr. Hendon stated that there was nothing unusual about the
inspector looking through intersection B and crosscut A and
seeing that rocks had fallen in the gob area, and that from his
experience as a longwall foreman, "you see that everyday"
(Tr. 22). He stated that he would be more concerned if he saw no
rocks because this would indicate that crosscut A was subjected
to more pressure than if it was caving behind the shields
(Tr. 229). In response to a question as to when it would be safe
to travel in crosscut A, Mr. Hendon stated as follows (Tr. 230):
A.

As a longwall person, you feel relatively
safe u~der the shields. Any time you come
out fro'm under the shields, you're
immediately looking at the roof and seeing
what the roof conditions are. You'd look for
cracks in the roof, plates bending, evidence
of excessive weighting.

Q.

So, a visual or a hearing inspection would be
the way to --

A.

If I came out from under number one shield, I
would look at the roof and determine whether
it was safe to walk out there or not.

Q.

Depending on what you see, you might travel
through crosscut A or you might not?

A.

That's correct. If the shield was -- if the
face was 100 feet back toward the top and I
looked in there and it wasn't safe, you
wouldn't go in there.

on cross-examination, Mr. Hendon stated that he walked the
No. 3 entry three or four months before the hearing as part of a
study with British Coal to determine if two longwalls could be
mined with only a yield pillar between them, and he explained
where he traveled during the study, the monitoring of the roof,
and the crosscuts that had .fallen. (Tr. 231-234). He confirmed
that the fallen crosscuts were observed from "intersection B",
and he described the fallen areas as "basically rock flushing in
from the gob", and the roof had fallen in from the sides of the
yield pillars into crosscut A (Tr. 235).

466

Mr. Hendon confirmed that lonqwall mining entails the
controlled failure of the mine roof and that it is known that the
roof .will fall behind the shields and that the respondent wants
to supplement the roof control plan to control the roof failure.
Accordingly, the respondent has implemented a stable yield pillar
system of assisting in roof support during lonqwall mining
(Tr. 239). He agreed with inspector Gaither's description of a
"break line" as shown on Exhibit G-1. He also agreed that from
the break line inby, the roof will fall at some point in time,
and that the roof behind the break line will fall over the sides
of the yield pillars, and that given the pressures exerted on the
mine roof, the roof bolts in the number 4 entry will not stop
the fall of the roof behind the break line (Tr. 240).
Mr. Hendon confirmed that when he walked the No. 3 entry and
saw evidence of the roof falling or "flushing" into crosscut A
from the gob, the existing roof bolts did not stop this flushing
into the crosscut (Tr. 241). Mr. Hendon agreed that if a miner
were to enter crosscut A to get to the lonqwall and saw evidence
that the roof was taking pressure, such as "popped off roof
plates" and cracked roof, this should alert him to add more roof
support or not travel the area (Tr. 241). He stated further at
(Tr. 242):
.
Q.

But would you agree, Mr. Hendon, that even
mine roof without a roof bolt plate popped
off or without a visible crack, even socalled good mine roof can fall without
advance warning?

A.

That's correct.

Q.

And if a miner is traveling through Crosscut
A, he does not know at what point in time, if
at all, this flushing of the mine roof will
take place, does he? He can't sit there and
predict when the mine roof will fall, can he?

A.

No, sir.

Mr. Hendon agreed that the yield pillar can slough off
around the corners, and that it is common to see oval shaped
pillars any place, and this could indicate rib sloughing from
pressure or the soft coal sloughing off {Tr. 243). He was of the
opinion that the location of the lonqwall face as shown in
exhibit G-1, would have relieved any roof pressure according to
his studies. However, he conceded that he was not present when
the condition was cited, and that he did not monitor that
particular location {Tr. 244).
Mr. Hendon stated that given the fact that the roof will
fall behind the break line, and the flushing and breaking in

467

crosscut A, a miner stepping out from under the No. 1 shield and
walking through the crosscut inby the break line would have no
assurance that the roof pressure on the roof which has fallen and
is falling is not going to override into the crosscut and flush
out the mine roof and fall (Tr. 244). He agreed that the roof
falls behind the break line, and as the face continues to
advance, it will fall all the way over to the yield pillars
(Tr. 247).
Mr. Hendon stated that given the conditions depicted in
exhibit G-1, he would not ask his crew to venture inby the break
line into crosscut A and sit against the rib to eat dinner, and
that he would be concerned about their safety (Tr. 247-248). He
would not consider traveling inby the break line to be a good
practice (Tr. 249-250).
In response to further questions, Mr. Hendon stated that
during his study he walked inby the roof break line for a
distance of one thousand feet and walked into crosscuts similar
to crosscut A, but not through them (Tr. 253). He further
explained as follows at (Tr. 253-255):
JUDGE KOUTRAS: Well, I thought you said that you
didn't consider it a good mining practice to do that.
My hypothetical was if you saw no visible evidence of a
roof condition, such as cracks, you still wouldn't
think it's a good mining practice for people to be
walking in this area. That seems a little
contradictory.
THE WITNESS: Well, let me base that on -- there would
be -- I can't think of a reason why you would send
anyone back there. In my case, I was looking for
specific roof control, roof conditions, what was
happening at the rib line, was it crushing out the
yield pillar. I had a specific reason to be back
there.
After visualizing it, looking at it, examining it, .and
felt like it was safe, I walked over to get a better
view. There is no reason that I can think of that I
would need to send somebody back there. There's not a
hypothetical that I can think of that I would send my
men back there.

•

•

*

*

•

*

•

JUDGE KOUTRAS: You wouldn't have any idea as to why
these people were walking through there, the people
that the inspector observed?
THE WITNESS:

It would be purely speculation.

468

JUDGE KOUTRAS:
speculate?

What would it be, if you were to

THE WITNESS: If I came off the face, it's much easier
to walk straight through the crosscut. Knowing those
two men personally, they walked out. They probably
walked in that way and didn't see any problems, came up
into Intersection B, just as Mr. Gaither testified he
did, examined the face, walked through there, came back
out and saw no change in the conditions and walked back
out the way they came in.

Mr. Hendon was of the opinion that any hazards associated
with walking through crosscut A would have to be determined by
the existing roof conditions, and he agreed that good roof can
fall without advance notice, including the roof in crosscut A.
However, the question of whether or not crosscut A is more likely
to fall would depend on whether roof pressure has broken the
roof, and if it has, it would more likely fall (Tr. 258-259). He
confirmed that depending on the roof conditions, when he was a
foreman he no~lly used crosscut A to travel in and out of the
longwall area (Tr. 261).
Mr. Hendon stated that the corners of crosscut A would be ·
the most hazardous place and that the respondent routinely
installs two cribs at the corners for · roof support (Tr. 262).
However, based on his pressure surveys, he was of the opinion
that intersection B is no more likely to fall in than the others,
but there is no guarantee that when the roof falls it will do so
evenly and not enter crosscut A (Tr. 265).
Mr. Hendon stated that his roof studies were made at the
No. 4, 5, and 7 mines, and that detailed pressure studies are
ongoing at the No. 7 mine, but he had no written findings with
him. He stated further at (Tr. 268):
Q.

Now, despite any studies you may have
conducted, any trips you went up to the
entry, when you have been a foreman or at any
other time when you've been underground at
Jim Walter in conditions similar to this as
Plaintiff's Exhibit No. 1, you've seen
Crosscut A fall in, haven't you, Mr. Hendon?

A.

Yes.

Q.

And you've seen the roof fall in on top of
the shields, haven't you, when the shields
have been lowered?

A.

Yes, sir.

469

The Petitioner's Arguments
The petitioner states that after the lonqwall face has
advanced outby crosscut A, that crosscut is not used as a regular
travelway, and there is no reason for anyone to go inby the break
line into the crosscut. The petitioner asserts that on two or
three occasions in the past when the respondent has experienced
mechanical breakdowns, and therefore needed to travel through the
crosscut to transport machinery and equipment, it has submitted a
plan setting forth the additional roof supports to be installed
prior to such traveling. However, in the instant case, no such
mechanical breakdown or emergency work existed, and respondent's
management employees apparently decided to take the easiest path
off of the lonqwall face, which was through crosscut A, but inby
the cave break line of the shields. Petitioner concludes that
there was no reason whatsoever for the employees to be going
through crosscut A, because the lonqwall and all work associated
therewith had advanced outby the crosscut, and that such a course
of travel inby the break line is inherently dangerous and
subjects the miners to the hazards related to roof falls and rib
rolls.
Citing the Commission's decisions in Eastover Mining co.,
4 FMSHRC 1207, 1211 n.8 (July 1982); Consolidation Coal Company,
6 FMSHRC 34, 37 n. 4 (January 1984); and the o.c. Circuit Court's
decision in United Mine Workers of A1Derica v. ~, 870 F.2d 662,
664 (D.C. Cir. 1989), the petitioner points out that roof falls
have been recognized by Congress, the Secretary of Labor, the
mining industry, and the Commission as one of the most serious
hazards associated with coal mining.
The petitioner asserts that the respondent's expert mining
engineer Hendon agreed with the inspector's definition of break
line (Tr. 239), agreed that the mine roof falls behind the break
line all the way over into the number 4 entry and over to the
yield pillar (Tr. 246-247), admitted that the area inby the break
line has higher roof fall potential and that he would not send
his men into that area (Tr. 249-251), and admitted that the inby
corner of the crosscut was "The most hazardous", and that the
respondent normally places two cribs in the crosscut as
additional roof support (Tr. 261-262). The petitioner further
asserts that Mr. Hendon acknowledged the inherent dangers of
crosscut A, confirmed that he has observed similar crosscuts fall
in on past occasions, and that there would be no reason why
anyone would send anyone inby the break line through crosscut A.
Finally, the petitioner points out that safety Committeeman Boyd
and inspectors Ely and Gaither confirmed that crosscut A was not
a normal travelway.
The petitioner maintains that the respondent's managers were
merely taking a convenient shortcut off of the lonqwall face and
were caught by inspector Gaither. The petitioner argues that the

470

respondent clearly recognized the hazards of travelling inby the
break line, normally installs two cribs in the crosscut as
additional support, and has no intention of traveling inby the
break line through the crosscut on a regular basis.
The petitioner points out that it has not prohibited travel
through crosscut A as long as the respondent has submitted a
supplemental roof plan showing the additional roof support it
would install prior to any travel therein. Given the inherent
dangers of the crosscut, the petitioner asserts that it merely
wants additional roof support installed prior to any work or
travel in the area.
Citing a recent discrimination decision involving the
hazards associated with crosscut A, Secretary of t,abor on behalf
of James Johnson and VMWA v. Jim Walter Resources. Inc.,
15 FMSHRC 2367 (November 1993), the petitioner argues that the
respondent recognizes the dangers of traveling through such
crosscuts when the longwall face has advanced outby the crosscut,
and that Judge Fauver noted that when the respondent removes an
entire longwall from one section of the mine to another, it
advances the faq e up to a crosscut that is in line with a track
entry, and that its approved roof control plan requires
additional roof supports such as "timbers set out to the track,
cribs set in the No . 3 entry on both sides of the crosscut,
timbers set in Crosscut B, additional roof bolts installed in
Crosscut B, and the entire face meshed all the way to the
tailgate." Petitioner concludes that under such circumstances,
the respondent's roof control plan provides for the installation
of additional support throughout the crosscut to be traveled, and
that in the instant case the respondent failed to even install
the minimum two cribs in the crosscut as was normally done, yet
two managers were observed walking down the middle of the
crosscut .
Citing previous litigation between the parties in Secretary
of Labor v. Jim Walter Resources. Inc., 11 FMSHRC 2364 (November
1989), in connection with a ventilation violation of section
75.312, the petitioner states that Judge Weisberger had little
difficulty in finding "that crosscut A was unsafe for .inspection"
in light of the testimony of the respondent's engineer (Franklin)
that the advancement of the longwall face causes the roof to fall
and transmits pressure on the pillar abutting crosscut A,
11 FMSHRC at 2366 .
The petitioner maintains that the cited regulation
section 75.202, is designed to protect against the hazards
related to roof falls and rib rolls, and that the respondent has
recognized these hazards as evidenced by the testimony of
Mr. Hendon who described how the inby corner of the crosscut
would be the "most hazardous", how the roof falls in from the
sides through a process known as "flushing", and how the roof

4 71

inby the break line had a "higher potential to fall." (Tr. 235,
251, 261). The petitioner further believes that the respondent's
recognition of the hazards of roof falls in crosscut A are
further documented by its engineer's testimony in the case
decided by Judge Weisberger and by the fact that the respondent
routinely installs two cribs in crosscut A for additional roof
support (Tr. 70, 121, 171, 262).
The petitioner concludes that given the fact that inspector
Gaither observed mine management employees walking down the
middle of the crosscut inby the break line without any a~ditional
roof support, a violation of the cited standard has been
established, and that it is undisputed that traveling inby the
break line presents a hazard related to roof falls and/or rib
rolls.
With regard to the gravity of the violation, the petitioner
asserts that the fact that the roof had not yet started to fall
does not minimize the seriousness of the violation. The
petitioner cites secretary of Labor v. consolidation Coal co., 6
FMSHRC 34, 38 (January, 1984), where the Commission was
confronted with a situation where "every miner on every shift for
six months was exposed to the hazard created by the over-wide
bolts along the supply track," and held that "the fact that no
one was injured during that period does not ~ facto establish
that there was not a reasonable likelihood of a roof fall." In
the instant case, the petitioner points out that it is by design
that the mine roof falls in behind the shields inby the break
line, and that it falls in all the way over through the No. 4
entry and up to the yield pillars, despite the presence of roof
bolts in the No. 4 entry.
The petitioner further concludes that the crosscut A area is
prone to fall in as well, and that Mr. Hendon testified that he
examined seven (7) such crosscuts and about half of them had
fallen in, and that the area inby the break line has a higher
potential to fall and that he would not send anyone back there.
Likewise, Messrs. Gaither, Ely and Boyd all testified as to the
roof falls they have observe in such crosscuts. The petitioner
concludes that such factors demonstrate the seriousness of
walking inby the break line and are the same concerns which
prompted Judge Weisberger to deem crosscut A to be "unsafe for
inspection".
The petitioner takes the position that it does not have to
resort to rulemaking to prohibit the respondent's managers from
walking inby a break line, and that the cited standard
section 75.202, is expressed in general terms so that it is
adaptable to myriad roof conditions and roof control situations.
See generally Kerry-McGee Corp., 3 FMSHRC 2496, 2497 (November
1981). Petitioner asserts that a formal rule is not necessary to
tell industry that walking inby a break line that is designed to

472

fall is a hazardous practice. Similarly, petitioner believes
that the decision to walk inby the break line through crosscut A
should not be left to individual decisions, and that "Such a
subjective approach ignores the inherent vagaries of human
behavior." Secretary of Labor v. Great Western Electric Company,
5 FMSHRC 840, 842 (May 1983).
With regard to the inspector's unwarrantable failure
finding, the petitioner asserts that the respondent was aware
that MSHA considers crosscut areas inby the break line to be
"gob" and not routinely travelable, and that for approximately 10
years, the local MSHA office had an enforcement policy of citing
a violation if the forward longwall crosscut was used as a
travelway without additional roof support or safeguards. Citing
the prior cases concerning the location of the break line and
crosscut A, and similar citations issued to the respondent in
connection with travel in the crosscut, the petitioner concludes
that it is clear that advancement of the longwall face exerts
undue pressures on the roof in crosscut A, and the respondent is
well aware of this principle of longwall mining, and that for
mine management to disregard this and travel beyond the break
line into crosscut A constitutes an unwarrantable failure
violation.
The petitioner asserts that the prior litigation and the
local MSHA policy put the respondent on no~ice that traveling
through crosscut A without additional roof support was prohibited
and would result in enforcement action. Citing Drummond Company.
Inc., 13 FMSHRC 1362, 1368 (September 1991), and Eastern
Associated Coal Corporation, 13 FMSHRC 187 (February 1991), the
petitioner concludes that the respondent knew, or '" had reason to
know", or "should have known" that traveling through crosscut A
was prohibited. Petitioner points out that the respondent
implemented the practice of installing two cribs in the crosscut
and the fact that no work is ever performed behind the break line
simply underscores the flagrant conduct of management.
Petitioner concludes that the individuals were simply taking
a "shortcut" for their own convenience and got caught .
The Respondent's Arguments
In its posthearing brief, the respondent argues that the
citation should be vacated because it was based on an MSHA policy
that has no basis in law. Rejecting the petitioner's contention
that the inspector relied on his experience, rather than on any
MSHA policy or manual provision, either written or unwritten, the
respondent maintains that it is impossible for an inspector not
to be influenced by any "informal" policy, and that MSHA's
attempts to enforce its "policy" with respect to the
interpretation and application of the cited section 75.202,
without proper rulemaking notice and hearing, including the

473

promulgation of an appropriate mandatory standard, or an
amendment or modification of the existing standard, -is unlawful.
The respondent further argues that the citation should be
vacated because the standard sought to be imposed on it by MSHA
is unenforceable due to vagueness because it is unwritten and
different MSHA inspectors interpret it in different ways. The
respondent states that "the standard" souqht to be imposed by the
inspector on the longwall in this case is that no miners are
allowed to travel in crosscut A (And other typically similar
crosscuts) when the break line, located where the canopy meets
the cave shield, passes the .i.Jl12:t corner of the crosscut. The
respondent suggests that it is confused, and it cites a decision
by Commission Judge William Fauver on March 10, 1993, affirming a
violation of section 75.202(a), in which it contends that a
different inspector testified that no miners could travel in the
crosscut when the face line passed the outby corner of the
crosscut, and a supervisory inspector testified that a violation
would occur if anyone travelled in the crosscut, or the adjacent
intersection, if the face line had passed the inby corner of the
crosscut. Jim Walter Resources. Inc, 15 FMSHRC 432 (March 1993).
Further, the respondent asserts that another inspector made a
finding that it is not a violation if miners work inby the
imaginary line (Attachment to brief).
The respondent argues that section 75.202, concerns the
condition of the roof and rib~ in question and that its expert
witness Hendon testified that the only way to determine whether
the roof is adequately supported is by visual observation, and
that MSHA's assumptions concerning the pressures associated with
lonqwall mining using yield pillars are erroneous. The
respondent maintains that Mr. Hendon's studies proved that the
areas prohibited to travel by MSHA actually -were under less
pressure than the areas through which MSHA desired for miners to
be travel. Citing additional testimony by Mr. Hendon that he
would not send his crew inby the break line into crosscut A, the
respondent points out that he indicated that placing people at
the critical rib corner would have to determined by the existing
conditions. Respondent also cites Mr. Hendon's testimony that it
was not a good practice to be inby the break line without a
reason, but points out that Mr. Hendon further testified that he
has traveled similar crosscuts inby the break line after visually
examing the roof and determining that it was sate, and that he
would travel through crosscut A as long as he could, depending on
the conditions.
The respondent concludes that Mr. Hendon was of the expert
opinion that there should not be a RJlX a.t rule that crosscut A is
not supported based on the position of the breakline, and that
each instance must be considered on its own merits. The
respondent points out that in the instant case there is evidence
of any adverse roof conditions in the area in question.

474

Assuming that a violation is established, the respondent
takes the position that it was not the result of its
unwarrantable failure to comply with the cited standard. In
support of this conclusion, the respondent relies on its previous
arCJUlllent that the standard sought to be imposed by MSHA is based
on various policies which are vague and differ from inspector to
inspector, and asserts that it is ludicrous for the petitioner to
argue that it knew or should have known which variation of this
policy was going to be enforced at the mine on the day of the
inspection. The respondent further states that the inspector
admitted that he did not question mine management about why they
were in the area or if they knew that they were violating his
policy. The respondent concludes that the inspector's sweeping
statement that "they were aware of the hazards" without further
inquiry is not sufficient to raise their actions to aggravated
conduct constituting more than ordinary negligence, citing E1nery
Mining Corp. v. Secretary of Labor, 9 FMSHRC 1977 (1987),
Secretary of Labor v. Gatliff Coal Co., 14 FMSHRC 1982 (1992).
Summarizing its position, the respondent asserts that the
citation should be vacated because (1) it was based on an
unwritten, unenforceable policy, (2) the standard sought to be
imposed by MSHA is vague, and (3) there is no testimony that the
roof in the cited area was not supported or otherwise controlled
to protect persons from hazards related to falls of the roof,
face, or ribs.
Findings and Conclusions
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R . § 75.202, which provides as follows:
(a) The roof, face and ribs of areas where persons work
or travel shall be supported or otherwise controlled to
protect persons from hazard related to falls of the
roof, face or ribs and coal or rock bursts.
(b) No person shall work or travel under unsupported
roof unless in accordance with this subpart.
The credible and undisputed evidence of the inspector
establishes that he issued the citation after observing four
miners, including the longwall manager, and deputy mine manager,
walking through the cited crosscut inby the longwall roof
support shield break or cave line. Although the roof at the
crosscut had been supported by roof bolts when the entry was
initially driven, it is undisputed that additional roof support
such as cribs, was not installed at the crosscut corners. It is
further undisputed that the inspector did not go into the
crosscut to observe or otherwise determine the immediate roof
conditions in the crosscut, but he did observe from an adjacent

475

entry intersection that the roof had fallen in behind the
longwall roof shields.
The petitioner concedes that there is no evidence in this
case of any adverse roof conditions, such as a cracked roof,
brows, or falling roof around the existing roof bolts. However,
the petitioner takes the position that it is an undisputed fact
that in longwall mining, the mine roof is going to fall behind
the roof shield break line and that there is a real potential for
roof pressures and stresses to ride over into the crosscut and
cause the roof to fall in that area. Under the circumstances,
the petitioner believes that additional roof support must be
installed before the crosscut in question is traveled by miners,
and since no additional roof support was in place when the
inspector observed the miners traveling through the crosscut, the
petitioner concludes that a violation has been established and
that the inspector was entitled to rely on his 21 years of mining
experience in support of his conclusion that traveling through
the crosscut without additional roof support in place was an
extremely hazardous practice in violation of section 75.202.
The respondent takes the position that in the absence of any
observable adverse roof conditions, section 75.202 does not
require any additional roof support, and it suggests that MSHA is
attempting to enforce a "per se" prohibition against traveling
through a crosscut without additional roof support when the
longwall canopy shield break line reaches a · particular position,
namely, just past the inby corner of the crosscut.
·
Although the respondent's assertion that the existing roof
bolts that were installed when the heading was initially driven
were in compliance with section 75.202, and its roof control
plan, may be true, the question of whether additional roof or rib
support was otherwise required pursuant to section 75.202(a), is
a matter to be decided on a case-by-case basis. Indeed, the
parties agreed that Judge Fauver ruled that MSHA policy is not
enforceable, and that any future cases would have to be decided
on the actual roof conditions in any given case (Tr. 173).
Conceding that Inspector Gaither did not observe any deteriorated
roof conditions because he did not travel into Crosscut .A,
petitioner's counsel nonetheless argued that the face that had
advanced ten feet outby the crosscut, in combination with the
roof pressures constantly being exerted on the crosscut,
constituted a potential hazard that needed to be addressed by the
installation of additional roof support if miners intended to
travel the crosscut (Tr. 175).
When asked why the parties have not negotiated some
agreement as to future roof support requirements, including
MSHA's prohibition of any travel through a typical crosscut A on
a mine wide basis, the petitioner's counsel stated that after
Judge Fauver's decision the parties discussed the filing of a
4 76

plan, but that mine manaqement took the position that no plan was
required for travel throuqh the intersection (Tr. 117).
Respondent's counsel stated that MSHA could easily prohibit
travel in the crosscut but that it does not want to do it leqally
throuqh rulemakinq and wants to rely on policy (Tr. 117).
The respondent's assertions that MSHA's insistence on
additional roof support at the cited crosscut A was based on a
locally or nationally applied policy that is unenforceable, and
that Inspector Gaither relied on that policy in issuinq the
violation, are rejected. While it is true that in the prior
litiqation before Judqe Fauver, MSHA did in fact have a local
policy and practice of citinq a violation of section 75.202(a),
if the forward lonqwall crosscut was used as a travelway without
additional roof support or safequards, Judqe Fauver recoqnized
the fact that such a policy was unenforceable as a mandatory
safety standard, and he affirmed the violation based on the
evidence presented with respect to the actual roof and mininq
conditions, irrespective of any such policy. In the instant
case, I find no credible support for the respondent's conclusion
that the inspector relied on any MSHA policy, and his credible
testimony that he was unaware of any such policy and never
discussed with anyone that he should cite a violation of section
75.202, stands unrebutted.
I am not persuaded by the fact that the roof did not fall in
this case, or that the immediate roof in the crosscut showed no
obvious evidence of deterioration . As the U.S. Tenth Circuit has
observed "it is clear that Conqress intended the Mine Act to both
remedy existinq danqerous conditions and prevent danqerous
situations from developinq", Mid Continent Coal & Coke Co. v.
fMSttRC, {10th Cir. September 24, 1981, 2 MSHC 1450). I aqree
with the petitioner's assertion that serious injuries or death
from a roof fall is not a prerequisite to establish a violation
in this case. Further, I do not find it unreasonable or onerous
to expect a mine operator to take reasonable precautions to
protect miners from potentially hazardous roof conditions in a
crosscut area that is in close proximity to a roof area that is
known to cave or fall in behind the lonqwall shields ·as the
lonqwall face is advanced durinq the coal extraction process.
The parties aqree that the roof will fall, but disaqree as to
whether anyone can predict ~ it will fall .
The respondent's assertion that MSHA's "standard"
prohibitinq travel in crosscut A when the shield break line
passes the inby corner of the crosscut is void for vaqueness .iJ!
rejected. As noted earlier, I have concluded and found that no
such requlatory "standard" was in existence a the time the
violation in this case was 'issued . In any event, I conclude and
find that the cited section 75.202, lanquaqe is stated with
sufficient certainty to reasonably inform the respondent as to
what was required to insure compliance . The requlatory lanquaqe
477

clearly requires the respondent to provide adequate ·protection to
protect miners from any roof, face, or rib fall hazards, as well
as hazards associated with coal or rock bursts, in areas where
they may travel, by supportinq or controllinq the roof, face, and
ribs.
As correctly arqued by the petitioner, it is well recoqnized
that roof falls constitute one of the most serious hazards in the
coal mininq industry, United Mine Workers of America v. Dole, 870
F.2d 662, 669 (D.C. Cir. 1989), and the commission has taken note
of the fact that mine roofs are inherently danqerous and that
even good roof can fall without warninq. Consolidation coal
Company, 6 FMSHRC 34, 37 (January 1984). It has also stressed
the fact that roof falls remain the leadinq cause of death in
underqround mines, Eastover Mining Co., 4 FMSHRC 1207, 1211 & n.8
(July 1982); Halfway Inco:cporated, 8 FMSHRC 8, 13 (January 1986);
Consolidation Coal Company, supra.
In Southern Ohio Coal Company, 10 FMSHRC 138, 139 (February
1988), the commission affirmed a violation of the roof control
requirements of 'section 75.200, because of the operator's failure
to adequately support two of four "brows", or edqes, that were
created by the excavation of a "boom hole". Roof bolts had been
placed in the roof of the boom hole after it was excavated, and
the bolts that were in the brows were those that had been placed
in the roof of the intersection prior to the excavation of the
boom hole. The inspector cited the violation because he believed
that the two bolts in question were located too far from the
edqes of the brows as determined by his two-foot standard as the
point at which he considered bolts to be too far from the edqe.
In appealinq the Judge's decision affirminq the violation,
socco contended that the brows were adequately supported, that it
did not violate its roof control plan, that there was no common
industry understanding as to how close to the edge the brows of
a boom hole should be bolted, and that all of the witnesses were
in agreement that the brows were stable at the time the violation
was issued, and that the roof was above average.
The Commissio~ affirmed the violation, and it relied on the
lanquaqe of section 75.200, requirinq that "The roof and ribs of
all active underground roadways, travelways, and working places
shall be supported or otherwise controlled adequately to protect
persons from falls of the roof or ribs." This requlatory
lanquaqe is very similar to the lanquage found in the cited
section 75.202, in the instant case.
The Commission held that the fact that socco did not violate
its roof control plan was not controlling for purpose of
determining the existence of the .violation predicated on the

478

requlatory requirement that the roof and ribs be supported or
otherwise controlled adequately. The Commission stated as
follows at 10 FMSHRC 141:
Liability under this part of the standard is resolved
by reference to whether a reasonabiy prudent person,
familiar with the mining industry and the protective
purpose of the standard, would have recognized that the
roof or ribs were not adequately supported or otherwise
controlled. Specifically, the adequacy of particular
roof support must be measured against what the
reasonably prudent person would have provided in order
to afford the protection intended by the standard.
Ouinland Coals. Inc . , 9 FMSHRC 1614, 1617-18 (September
1987); Canon Coal Co., 9 FMSHRC 667, 668 (April 1987),
~. Ozard-Mahoney Co., 8 FMSHRC 190, 191-92 (February
1986); Great Western Electric co . , 5 FMSHRC 840, 841-42
(May 1983). Measured against this test, we hold that
substant~al evidence supports the judge's conclusion
that two\brows of the boom hole were not supported
adequately.
I conclude and find that the question of whether the
respondent failed to meet the requirements of section 75.202,
must be measured against the standard of whether a reasonably
prudent person familiar with all of the facts, would have
considered the existing roof bolts that were installed when the
entry was initially driven as adequate protection for the miners
who were observed walking through Crosscut A, or whether such a
person would have installed roof cribs, or other additional roof
support, or taken other precautionary measures to protect the
miners from roof or rib falls, including dangering off the area,
or otherwise prohibiting travel through the crosscut. See:
Westmoreland Coal Company, 7 FMSHRC 1338, 1341 (September 1985);
United States Steel Corporation, 5 FMSHRC 3 (January 1983);
Alabama By-Products Corporation, 4 FMSHRC 2128 (Decem.per 1982).
In shor.t , the adequacy of any particular roof support must be
measured against what the reasonably prudent person would have
provided in order to afford the protection intended by the
standard. ouinland Coals. Inc., 9 FMSHRC 1614, 1617-18
(September 1987); Canon Coal Co., 9 FMSHRC 667, 668 (April 1987).
The evidence establishes that the respondent has routinely
installed cribs at the crosscut corners as additional roof
support under circumstances similar to those presented in this .
case, and it has done so as an added safety measure to protect
miners from potential roof falls in the crosscut. Under the
circumstances, there is a strong presumption that the respondent
recognizes the real and potential hazards of roof and rib falls
in those crosscut areas where the longwall face has advanced past
the crosscut intersection and the roof is falling in behind the
advancing shields.
479

Inspector Gaither, who has 22 years of mininq experience,
includinq the inspection of lonqwall mining practices, testified
credibly that when the break line of the lonqwall roof support
shield reaches the crosscut intersection, that area is hazardous
to anyone walking through because no additional roof support is
present. He further credibly testified that when the roof falls
behind the advancinq roof support shield as the coal face is
mined and advanced, the roof will fall all the way to the yield
pillars at the corne~s of the crosscut, and that he has on many
occasions observed the roof fall in the intersection and "ride
over into the crosscut" (Tr. 53-54). He also testified credibly
that any travel inby the shield break line would be hazardous
because of potential rib rolls caused by sloughage that res~lts
from roof pressures on the soft coal seam (Tr. 64).
Lonqwall helper and staqe loader Boyd, who has 21 years of
mining experience, including 19 years working on lonqwalls,
testified credibly that he has observed roof falls and
"overrides" resulting from roof pressures in areas typical to
those described in the crosscut and intersection in question
(Tr. 109-114). '-.While it is true that Mr. Boyd did not observe
the roof conditions at the time of the inspection, I find his
testimony credible and relevant to the issue of the hazards
typically present~d at the crosscut area in question when the
roof is falling behind the advancing lonqwall shields.
MSHA's Safety Supervisor Ely, who has over 20 years of
mining experience, including the review of roof control plans,
the inspection of lonqwalls, and the investigation of roof falls,
testified credibly that roof stresses are present at the front of
the roof shields as the face is advanced and the coal is removed,
and that one cannot predict when the coal will fall beQind the
shields as they are advanced. He further testified credibly that
he has observed roof ''ride over" pressures at the front of a
longwall face, and that it would be an unsafe practice to travel
through the crosscut in question because of the roof stresses and
the fact that unplanned roof falls frequently occur in such areas
(Tr. 156-158).
Although respondent's expert witness Hendon was of the
opinion that any hazards associated with walking through crosscut
A would have to be determined by the existing roof conditions, he
confirmed that good roof can fall at any time without advance
notice, including the roof in crosscut A. He agreed that as the
roof falls behind the shield break line as the face is advanced,
it will fall all the way to the yield pillars, and that anyone
walking inby the break line would have no assurance that the roof
pressure on the roof which has fallen and is falling is not going
to override into the crosscut and fall (Tr. 244-247). Given the
conditions that existed, and as shown in the inspector's sketch,
Exhibit G-1, Mr. Hendon who has worked as a foreman, stated that
he would not ask his crew to travel inby the break line into

· 4 80

crosscut A because he would be concerned for their safety and
would not consider such travel to be a good practice
(Tr. 249-250).
Although Mr. Hendon testified to certain roof pressure
studies that he had participated in, none of them were produced
or introduced for the record, and he conceded that he was not
present when the citation was issued and that he did not monitor
the particular crosscut location cited by the inspector
(Tr. 244). Even so, Mr. Hendon testified that the corners of
crosscut A would be the most hazardous place, and that roof cribs
are routinely installed at those locations for roof support, and
that there was no guarantee that when the roof falls, it will do
so evenly and not enter crosscut A (Tr. 265).
After careful consideration of all of the evidence in this
case, and the arguments advanced by the parties, I agree with the
petitioner's position and conclude and find that it has
established a violation of section 75.202, by a preponderance of
the evidence. Although it is true that there is no evidence of
any objective indications that the immediate roof area at the
cited crosscut· through which the miners were observed traveling
was going to fall, or that the roof had visible signs of
deterioration, I am persuaded by the credible testimony .of the
petitioner's witnesses, corroborated in critical part by the
respondent's expert witness, that clearly demons~rates to me that
in the course of longwall mining, roof pressures are exerted on
the yield pillars as the roof breaks off and falls behind the
shields temporarily supporting the ro~f, and to the edge of the
pillars, and that there is a clear and present danger of a · roof
fall extending out into the crosscut, and that travel through the
crosscut without additional roof support would be inherently
unsafe and hazardous.
I conclude and find that a reasonably prudent person
familiar with longwall mining should recognize that walking
through a crosscut immediately adjacent to the face that is being
mined, and inby the shield cave line, without the installation of
additional roof support, is an unsafe practice that exposes
miners walking through the area to hazards related to falls of
the roof or ribs, and that such conduct constitutes a violation
of section 75.202. Under the circumstances, the citat~on IS
AFFIRMED.
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

481

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 Diyision.
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 f or::xnula "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 Mini ng Company. Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. steel Mining company.
In&., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf. Inc., 10 FMSHRC 498
(April 1988); Youghioqheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987). Further, any determination of the significant
nature of a violation must be made in the context of continued
normal mining operations . National Gypsum, supra, 3 FMSHRC 327,
329 (March 1985). Halfway. Incorporated, 8 FMSHRC 8, (January
1986).
In consolidation Coal Co., 6 FMSHRC 34, 38 (January 1984),
the commission affirmed my "S&S" finding concerning an over-wide
roof bolting pattern which had existed along a supply track for a
period ot 6-months, and stated that "[T)he fact that no one was

48 2

injured during that period does not J.Ra.2 facto establish that
there was not a reasonable likelihood of a roof fall.• The
commission further noted that despite the generally good roof
conditions, the over-wide bolting pattern created "a measure of
danger to safety ~r health".
In the National Gypsum case, 3 FMSHRC 822, 827 (April 1981),
the Commission noted that the word "hazard" denotes a measure of
danger to safety or health, and that a violation "significantly
and substantially" contributes to the cause and effect of a
hazard if it could be a major cause of a danger to safety or
health. "In other words", stated the Commission, "the
contribution to cause and effect must be significant and
substantial".
In Halfway Incoroorated, 8 FMSHRC 8 (January 1986), the
commission upheld a significant and substantial finding
concerning a roof area which had not been supported with
supplemental support, and ruled that a reasonable likelihood of
injury existed \despite the fact that miners were not directly
exposed to the hazard at the precise moment of the inspection.
In that case, the Commission stated as follows at 8 FMSHRC 12:
(T]he fact that a miner may not be directly exposed to
a safety hazard at the precise moment that an inspector
issues a citation is not determinative of whether a
reasonable likelihood for injury existed. The
operative time frame for making that determination must
take into account not only the pendency of the
violative condition prior to the citation, but also
continued normal mining operations. National Gypsum,
supra, 3 FMSHRC at 825; U.S. Steel Mining Co •. Inc.,
6 FMSHRC 1573, 1574 (July 1984).
Although traveling through the crosscut in question may not
have subjected the miners to any immediate hazard, the inspector
observed that the roof had fallen behind the shields, and no
additional roof support had been installed. He also indicated
that in the event of a roof squeeze between the coal seam and the
shield, the roof will fall behind its roof bolt anchorage as the
roof falls behind the shields (Tr. 59). Mr. Ely testified
credibly that the existing roof bolts that were initially
installed when the entry was developed may not be adequate to
support the crosscut that is being subjected to roof pressures,
and that on many occasions the roof falls above the roof bolt
anchorage zone {Tr. 156).
I conclude and find that the failure to provide additional
roof support before traveling through the crosscut in question
contributed to a discrete hazard of roof or rib falls in that
area. In the context of continued mining operations, I further
conclude and find that a fall of roof or ribs was reasonably
483

likely as the shields advanced further, and anyone walkinq
throuqh the crosscut would be exposed to injuries of a reasonably
serious nature. Under all of these circumstances, the
inspector's "S&S" findinq IS AFFIRMED.
Unwarrantable Failure Violation
The qoverninq 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 liqht of the foreqoinq, 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 corooration, 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 holdinq 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
"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 meaninq of the
phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaninq of the
phrase "unwarrantable failure." "Unwarrantable" is
defined as "not justifiable" or "inexcusable."
"Failure" is defined as "neqlect of an assiqned,
expected, or appropriate action." Webster's Tbird New
484

International Dictionary CUnabridqed) 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
"inadvertence," "thoughtlessness," and "inattention."
Black's LaW Dictionary 930-31 (5th ed. 1979). Conduct
that is not justifiable and inexcusable is the result
of more than inadvertence, thoughtlessness, or
inattention. • • •
There is no evidence of any obvious readily observable
adverse roof conditions in the immediate crosscut area in
question, and it would appear that the hazard exposure was rather
brief. Although the inspector alluded to past citations that he
had issued for similar incidents, no further evidence was
forthcoming with respect to the facts and circumstances
surrounding those purported past events. In the absence of any
credible evidence to the contrary, I agree with the petitioner's
assumption that the miner's walked through the crosscut for their
own convenience, and the respondent confirmed that one of the
managers is nb longer in its employ. None of the other
individuals were called to testify in this case.
The inspector testified that he based his unwarrantable
failure finding on his belief that the two "management"
individuals should have set the example for the work force, and
that they knew or should have known that it was .hazardous to
travel through the crosscut . I conclude and find that these are
insufficient grounds for establishing "aggravated conduct" within
the meaning of the Commission's precedent decisions. I further
conclude and find that the petitioner has not established,
through any credible, reliable, or probative evidence, that the
violation was the result of the respondent's unwarrantable
failure to comply with section 75 . 202. Under the circumstances,
the inspector's finding IS VACATED, and the section 104(d)(l)
citation IS MODIFIED to a section 104(a)"S&S" citation.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business.
The parties stipulated that the respondent is a large mine
operator and that the payment of a civil penalty assessment for
the violation will not adversely affect its ability to continue
in business. I adopt these stipulations as my findings and
conclusions.
History of Prior Violations
The parties stipulated that the respondent has an "average"
history of prior violations. In the absence of any evidence to
the contrary, I cannot conclude that the respondent's compliance

485

record warrants any additional increase in the penalty assessment
that I have made for the violation in question.
Good Faith Abatement
The record reflects that the citation was terminated within
two hours after the affected employees were reinstructed about
traveling the crosscut, and the area was dangered off. I
conclude and find that the violation was timely abated in good
faith.
Gravity
Based on my "S&S" findings and conclusions, I conclude and
find that the violation was serious.
Negligence
I conclude and find that the violation resulted from the
respondent's failure to exercise reasonable care amounting to a
moderately high degree of negligence.

Civil Penalty Assessment
Taking into account the civil penalty assessment criteria
found in section llO (i) of the Act, I conclude and find that a
civil penalty assessment of $500, is reasonable appropriate for
the violation that I have affirmed.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
of $500, for the violation. Payment shall be made to the
petitioner (MSHA), within thirty (30) days of this decision and
Order, and upon receipt of payment, this matter is dismissed.

~~.~o~
Administrative Law Judge

Distribution:
William Lawson, Esq., Office of the Solicitor, U.S. Department
of Labor, suite 201, 2015 2nd Avenue North, Birmingham, ·AL 35203
(Certified Mail)
R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O. Box 133
Brookwood, AL 35444 (Certified Mail)

/ml
486

ADMINISTRATIVE LAW JUDGE ORDERS

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

FEB 3

1994 .
DISCRIMINATION PROCEEDING

BRYAN WIMSATT,
Complainant

Docket No. KENT 93-735-D

v.

MADI CD 93-08

GREEN COAL COMPANY, INC.,
Respondent

Henderson county Mine No. 1
ORDER DENYING RESPONDENT'S
MOTION FOR SUMMARY DECISION

This proceeding concerns a complaint of alleged
discrimination filed with the Commission by the· complainant
against the respondent pursuant to section 105(c) (3) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815(c) (3).
Essentially, the complainant asserts that he was
constructively discharged or justifiably refused to work under
unsafe working conditions, due to his safety complaints being
ignored by the respondent.
Respondent has now moved for summary decision on the grounds
that the pleadings, taken together with the complainant's
deposition, show that there is no genuine issue as to any
material fact and that, therefore, respondent is entitled to
summary decision as a matter of law.
Commission Rule 64(b) states that, "A motion for summary
decision shall be granted only if the entire record, including
the pleadings, depositions, answers to interrogatories,
admissions, and affidavits shows: (1) That there is no genuine
issue as to any material fact; and (2) that the moving party is
entitled to summary decision as a matter of law." 29 c.F.R.
§ 2700.64(b).
As the Commission has pointed out, summary
decision is an extraordinary procedure and must be entered with
care, for it has the potential, if erroneously invoked, of
denying a litigant the right to be heard. Thus, it may only be
entered when there is no genuine dispute as to material facts and
when the party in whose favor it is entered is entitled to
summary decision as a matter of l~w. Missouri Gravel Co.,
3 FMSHRC 2470, 2471 (November 1981). Here, the burden is on the
respondent, as the moving party, to establish its right to
sUminary decision, and I conclude that respondent has not met that
burden.

487

In this case, while it would appear that the respondent has
repeatedly offered to reinstate the complainant to his former
position as an oiler on the 1650 shovel, the complainant has just
as steadfastly refused to return to work on that job. Respondent
argues that complainant did not and does not refuse to return to
this job for safety reasons, but rather, because of his 0 fear of
the highwall." However, the great unanswered question so far is:
Was it, in fact, unsafe to work in the pit at the time or times
complainant has refused to? This is still a genuine issue of
material fact at this point in time. In order to carry his
burden of proof on that issue, complainant will have to
establish, by a prepond~rance of the evidence, a reasonable, g ood
faith belief that an unsafe condition existed in the pit that
forced him to refuse to perform. I have no idea whether or not
he can d o that, but he is at least entitled to try.
ORDER
Based on the foregoing findings and conclusions, the
respondent's motion for summary decision is. DENIED. Therefore,
this matter will need to be set down for a hearing on the merits
in the near future. The parties are invited to submit proposed
trial dates.

. Maurer
trative Law Judge
Distribution:
Frank P. Campisano, Esq., First Trust Centre, Suite 10 North,
200 South Fifth Street, Louisville, KY 40202 (Certified Mail)
Mary Lee Franke, Esq., Kahn, Dees, Donovan & Kahn, 305 Union
Federal Building, P. o. Box 3646, Evansville, IN 47738-3646
(Certified Mail)
dcp

4 88

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

FEB 0 B 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
'ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDINGS

.

Docket No. KENT 93-418
A.C. No. 15-12699-03580

PECKS BRANCH MINING COMPANY,
INCORPORATED,
a.n d
JERRY SMITH, Employed by
PECKS BRANCH MINING COMPANY,
INCORPORATED,
and \
TROY HUNT, Employed by
PECKS BRANCH MINING COMPANY,
INCORPORATED,
Respondents

Docket No. KENT 92-702
A.C. No. 15-12699-03570

Docket No. KENT 93-558
A.C. No . .15-12699-03581A

.

Docket No. KENT 93-559
A.C. No. 15-12699-03582A
Mine No. 1

ORDEB DENYING MOTION TO AP.PROVE SETTLEMENT
PROCEDURAL BACKGROUND

These are civil penalty cases in which the Secretary of
Labor on behalf of his Mining Enforcement and Safety
Administration (MSHA) and pursuant to Sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977 (Mine Act), 30 u.s.c.
S§ 815, 820, seeks the assessment of $123,800 in civil penalti~s
for violations of various mandatory safety and health standards
for underground coal mines as set forth in Part 75, Title 3·0,
Code of Federal Regulations. In Docket Nos. KENT 92-702 and
KENT 93-418 the Secretary charges Pecks Branch Mining Company,
Incorporated (Pecks Branch) with two such violations each; in
Docket No. KENT 93-558, the Secretary charges Jerry Smith, as an
agent of Pecks Branch with four knowing violations; and in Docket
No. KENT 93-559, the Secretary charges Troy Hunt, as an agent of
Pecks Branch with two knowing violations. The Secretary's
allegations of violation with respect to Smith and Hunt are the
same as those against Pecks Branch and all appear to have arisen
out of MSHA's investigation of a fatal roof fall accident that
occurred at Pe.c ks Branch's No. l Mine on August 1, 1992. Thomas
A. Grooms represents the Petitioner. William K. Doran represents
the Respondents.
-

489

CBRONOLOGY or £VENTS
These matters were the subject of prehearing orders
directing the parties to confer to determine, inter alia, whether
the cases could be settled. When I was advised a settlement
would not be possible the cases were consolidated for a hearing
that was scheduled to commence in Pikeville, Kentucky, in early
November 1993. At the request of counsels, the hearing was
continued and ultimately was rescheduled for December 7, 1993. 1
In a conference telephone call on December 1, 1993, counsels
orally stated the captioned matters had been settled, that Pecks
Branch, Smith and Hunt had agreed to accept the alleged
violations and to pay the proposed penalties. 2 On the basis of
these assurances, I canceled the scheduled hearing and informed
counsels that motions to approve the settlement would be due in
my off ice within thirty (30) days.
The motions did not arrive. on January 12, 1994, I'
telephoned counsel for the Secretary to determine their
whereabouts. I was told he was out of the office and would not
be back until January 14. I then called counsel for the
Respondents who··. advised me there was no longer a settlement
agreement. In a later conference telephone conversation, counsel
for the Secretary maintained a valid settlement agreement still
existed and that it should be enforced. Counsel for the
Secretary then stated that he intended to file a motion to
approve the settlement, which he has done.
In the meantime, I reset the matters for hearing in
Pikeville, Kentucky, commencing on February 15, 16 and 17, 1994.
Upon counsel for the Secretary's statement that he was committed
to another trial on that date in a different city and upon
counsel for the Respondents agreement, I rescheduled the hearing
to commence March 8. I advised the parties that I intended to
rule on any pending motions, including any motion to approve a
settlement, at the commencement of the March 8 hearing. In a ·
subsequent conference telephone call, counsel for the Secretary
argued, I think correctly, that deferring a ruling until the
hearing could unnecessarily cost the parties considerable time
and expense in trial preparation.
·

1In addition to the captioned cases, another civil penalty case,
Secretary of Labor, Mine Safety and Health Aciministration y.Jimmy Daugherty,
Employed by Pecks Branch Mining co. Inc,, Docket No. KENT 93-506, also was
consolidated for hearing. The facts underlying the Daugherty case appear
essentially to be the same as those underlying the captioned cases. William
Doran does not represent Daugherty, who is proceeding pro se.

2rn addition, counsel for the Secretary stated that he would be able to
negotiate a settlement in Daugherty.

49 0

THE SECRETARY'S MOTION ANJ) Al\GUMENTS
Counsel for the Secretary states the parties agreed that the
violations alleged occurred, that the gravity of the violations
was as characterized on the subject citations and orders and that
the negligence of the Respondents also was as characterized.
Counsel further asserts that the parties agreed regarding the
size of the operator, that although Pecks Branch is no longer in
business the proposed penalties would not, if it were still
operating, affect Pecks Branch's ability to continue in business,
and that the operator demonstrated good faith in attempting to
achieve rapid compliance following citation of the violations.
The motion to approve the settlement was served by counsel for
Secretary on Respondents' counsel on January 19, 1994.
In his memorandum in support of the motion, counsel
argures that the parties reached agreement on the settlement on
December 1, 1993, the essential term being that Respondents would
pay in full the proposed civil penalties. counsel further states
that on December 15, 1993, counsel for Respondents notified him
that the Respondents wished to alter the settlement by paying
less than th~ amount to which they had agreed on December 1 and
that on December 21, 1993, he forwarded a written settlement
agreement setting forth the terms of the settlement as worked out
initially to counsel for the Respondents, but that no response
was received.
Citing Brock v. Scheuner Corp., 841 F.2d 151, 154 (6th Cir.
1988), counsel for the Secretary argures his client is entitled
to an order approving the settlement because there was agreement
between the parties as to the material facts, the essential one
being the amount of the penalties. Not only would it be contrary
to law to disregard the settlement, it would be contrary to sound
policy as well. If the settlement is not enforced "the
[R]espondents will have flaunted the Commission's authority and
procedures and will benefit from their wrongful refusal to comply
with a validly entered settlement agreement." Memorandum 4.
Counsel for the Respondents• position is that a
post-settlement communication by a MSHA inspector altered the
circumstances under which the parties had entered into the
agreement and further that despite the purported settlement the
parties did not agree upon the material facts.
According to counsel, Respondents' approval of the
settlement was "based on its understanding of MSHA's stance on
settlement as communicated by counsel for the Secretary."
Opposition To Sec.•s Motion 2. However, following the agreement
MSHA Inspector James Hager, an inspector who had issued some of
the violations alleged in these proceedings, informed Respondent
Jerry Smith that Respondents understanding of MSHA's bargaining

491

stance was incorrect and the Respondents then withdrew their
approval. Id.
Smith, who is the husband of Phyllis Smith,
co-owner of Pecks Branch, states in an affidavit that subsequent
to the agreement, Hager told him that a 50 percent reduction in
the penalties assessed had never been proposed and Hager implied
that MSHA would have considered such a reduction. Affidavit 1.
The only reason Respondents had agreed to pay the penalties as
assessed was that counsel for the Respondents advised them MSHA
was unwilling to accept any lesser penalty.
Counsel for Respondents further argues that counsels never
envisioned settlement negotiations completed, until the language
of the settlement motion was drafted and agreed upon. A draft
settlement agreement was not forwarded to counsel for the
Respondents until after the Smith/Hager communication. Moreover,
the language of the settlement motion is not consistent with what
the Respondents would have accepted -- specifically the provision
that "the penalties ••• would not affect ••. [the operator's)
ability to continue in business. "Opposition to Sec.'s Motion 5,
citing Motion To Approve Settlement 2.
RULING

counsel for the Secretary has stated the law correctly.
The courts have made clear that a settlement may be enforced even
if it has not been reduced to writing, provided there is an
agreement on all material terms. Scheuner Corp. at 154; Bowater
North American Corp. y. Murray Machinery, Inc., 773 F.2d 71 {6th
Cir. 1985; Odomes y. Nucare, Inc., 653 F.2d. 246, 252 {6th Cir.
1981). counsel, likewise had presented a persuasive argument
that despite the absence of a motion stating the terms of the
settlement and one presented to the undersigned prior to the
initiation of the present dispute, there was a genuine agreement
concerning the material facts. In this regard, I particularly
note there is no dispute that the Respondents and the Secretary
agreed to settle the matters by payment in full of the penalties
proposed.
The settlement negotiations were conducted by counsels who
had full authority to represent and speak for the parties. If I
accept as factual the statements in Smith's affidavit, they
amount to Smith (a party) being told by a person not a party to
the proceedings or to the settlement negotiations that counsels
might have reached a different result had different terms been
proposed and accepted. Such might be said of any settlement
agreement and it has nothing to do with the material terms of the
settlement. The implication of the affidavit is not so much that
MSHA would have accepted a different agreement had it been
offered, but rather that Smith is unhappy his counsel did not
negotiate a different agreement. A party cannot void an
agreement, merely because he or she subsequently believes it

492

insufficient. ~Taylor v. Gordon Flesch Co ..
858, 863 (7th Cir. 1986).

In~.,

793 F.2d

Further, I am not persuaded by counsel for Respondent's
statement that the Respondents did not envision the agreement
completed until the language of the settlement motion had been
drafted and agreed upon. Both counsel were very clear in their
joint telephone conversation with me on December 1, 1993, that
. the matters had been settled. There was no discussion of ongoing
negotiations and, indeed, if there had been I would not have
canceled the December 7 hearing. What seemed certain at the time
was that Respondents had agreed, for whatever reason, to pay the
proposed assessments, even though Pecks Branch was no longer in
the mining business and that by doing so they had alleviated
themselves of further expenses of a trial. There was no mutual
mistake among the parties in reaching the agreement and there was
no fraud inducing them to agree.
Were these the only considerations, I would be inclined to
grant the motion, but they are not. There are interests,
inherent in th'ese matters beyond those of the parties. These
interests affect the credibility of the Commission as. an
impartial adjudicator of Mine Act cases. As I have noted, the
proceedings apparently have arisen as a result of a fatal roof
fall accident and involve significant aggregate , proposed civil
penalties. In such cases, it is especially important that the
record be free of any hint that due process was not completely
afforded. It is equally important that all arguments for and
against any violations found and any penalties ultimately
assessed have been fully raised and considered. The very ability
of the Mine Act to provide "a more effective means ••• for
improving the working conditions and practices in the Nations•s
coal ••• mines ••• (and] to prevent death and serious physical
harm" rests in large part on public confidence that due process
is always available to all litigants and that their concerns can
be always aired publicly. 30 u.s.c. § 801(c).
I conclude that to approve the settlement and order
compliance with its terms could open the door to subsequent
charges -- unfair though they might be -- that Respondents were
denied their day in court and to a resulting diminution of public
confidence in the Commission. The Commission has emphasized that
oversight of proposed settlements is, in general, committed to
its sound discretion. Utah Power and Light Co •. Mining Division,
12 FMSHRC 1548, 1554 (August 1990); Birchfield Mining Co.,
11 FMSHRC 1428 (August 1989). Given the potential for
misunderstanding that would be involved in the granting of
counsel for the Secretary's motion and given the nature of these
cases, I am convinced that sound discretion requires the motion
be DENIED.

49 3

Counsel for the Secretary fears .this result will allow the
Respondents to flaunt "the Commission's authority and procedures
and ••• benefit from their wrongful refusal to comply
with a validly entered settlement agreement." Mem. In Support of
Motion to Approve Settlement 4. It is important to remember,
however, that the Secretary and Respondents now will proceed to
hearing, that the hearing will be de novo and that I will in no
way be bound by the penalties proposed. Any penalties assessed
will fully reflect the evidence adduced at hearing and any may
reach the maximum allowed by the statute. The Respondent's
should bear in mind that in judicial proceedings as in the market
place, shoppers do not always find a better bargain. It is also
important to note that my ruling on the Secretary's motion might
well have been different had counsel submitted a timely motion to
approve the settlement.

Y~:d/,'~~
David F. Barbour
Administrative Law Judge
(703)756-5232

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified)
William K. Doran, Esq., Smith, Heenan & Althen, Suite 400, 1110
Vermont Ave., N.W., Washignton, D.C. 20005-3593 (Certified Mail)
. /epy

494

J'BDBDL 11D1B SUB'l'Y AllD BllU.'1'11 DVJ:D COMMTSSIO•
OFFICE OF ADMINISTRATIVE LAW Jll>GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB I 4 1994
CONSOLIDATION COAL COMPANY,
Contestant

v.
SECRETARY OF LABOR, Mine
Safety and Health
Administration, (MSHA),
Respondent

... CONTEST PROCEEDINGS
Docket No. WEVA 94-157-R
.. Citation
3305270; 12/ 28/ 93
. Humphrey No. 7 46-01453
.. Docket No. WEVA 94-158-R

.. Citation 3305893; 12/ 29/93

.:

Docket No. WEVA 94-159-R
Order No. 3305392; 12/ 30/ 93
Loveridge No. 22

46-01433

ORDER DENYING CONTESTAN'l''S MOTION FOR EXPEDITED BEARING
ORDER DENYING RBSPONDBNT 1 S MOTION FOR CONTINUANCE
NOTICE OP CONSOLIDATED BEARING

These contest proceedings concern two 104(d) (1) citations
and a 104(d) (1) order issued at the above captioned mine
facilities on December 28 through December 30, 1993. The
contestant's January 18, 1994, Notice of Contest regarding the
two citations and one order in issue was accompanied by a Motion
for Expedited Hearing . Not to be outdone, the Secretary
countered on January 27, 1994, by opposing the contestant's
request for expedited proceedings and by moving to delay these
proceedings by seeking to have these matters continued pending
consolidation with the forthcoming civil penalty proceedings.
Both parties have filed responsive pleadings opposing each
other's motions .
The contestant's motion for expedited proceedings is based
on its assertion that the issuance of the instant citations and
order have placed it in a "d" chain, which may subject its mines
to subsequent withdrawal orders and increased civil penalties.
The Secretary, citing the fact that several thousand "d"
citations and orders are issued every year, opposes the
contestant's request noting there are neither extraordinary nor
unique circumstances that warrant the requested relief. In this
regard, the Secretary properly emphasizes that there are no
closure orders at issue as the alleged violations were apparently
promptly abated.

495

While Commission Rule 52, 29 C.F.R. § 2700.52, sets forth
the procedures for requesting an expedited hearing, it is silent
with regard to the prerequisites for granting such a request.
However, this rule contemplates circumstances exigent enough to
permit the scheduling of a hearing on as little as five days
notice. (Commission Rule 52(b)). Consequently, my colleagues,
in denying similar requests for expedited hearings, have
consistently held that for the contestant to prevail, it must
bear the burden of showing extraordinary or unique circumstances
resulting in continuing harm or hardship. ~ Energy West Mine
Company, 15 FMSHRC 2223 (Judge Hodgdon, October 1993); Pittsburg
& Midway Coal Mining Company, 14 FMSHRC 2136 (Judge Fauver,
December 1992); and Medicine Bow Coal Company, 12 FMSHRC 904
(Judge Morris, April 1990). For example, the Commission has
stated that a closure order that remains in effect, a
circumstance which is absent in the current cases, may provide a
basis for an expedited proceeding. Wyoming Fuel Company,
14 FMSHRC 1282, 1287 (August 1992).
As a threshold matter, I note the contestant's claimed need
for expedited resolution is speculative in that subsequent "d"
orders are a condition precedent to any asserted hardship.
Moreover, the Commission has recognized that the threat of a
104(d) chain " ••• provides a powerful incentive for the operator
to exercise special vigilance in health and safety matters ••• "
Nacco Mining Co., 9 FMSHRC 1541, 1546 (September 1987). While I
am cognizant the alleged violations and related unwarrantable
failure conduct are yet to be proven by the Secretary, the
contestant's protestations that it must now exercise "special
vigilance" is, on balance, unmoving.
With respect to the issue of unique circumstances, the
Commission stated there were 3,572 unwarrantable failure
citations issued in 1986. Emery Mining Corp., 9 FMSHRC 1997,
2002 (December 1987). I concur with the Secretary that there is
no reason to believe the rate of alleged unwarrantable failure
violations has materially changed. While I am certain the
contestant finds little comfort in the fact that thousands of "d"
orders are issued every year, it is nonetheless not alone in its
alleged predicament. Consequently, there are no special
circumstances justifying an expedited hearing. Accordingly, the
contestant's motion will be denied.
Although I have concluded that the expedited hearing
process provided in Commission Rule 52 is inappropriate, there is
a statutory basis for providing a hearing forum in these
cases on an expeditious basis. The contestant has availed
itself of this statutory solution by invoking the contest
provisions of Section 105(d) of the Mine Safety and Health Act
of 1977, 30 u.s.c. § 815(d), wherein an operator may elect to
contest a citation without waiting for a civil penalty to be
proposed.

496

The Secretary, relying on ·Energy Fµels Corp., -1 FMSHRC 299
(May 1979) seeks to thwart the contestant's desire for a speedy
hearing by filing a Motion for Continuance. The Secretary notes
that, in Energy, the Commission opined there was no reason why a
contestant that "lacked an urgent need" for a hearing could not
wait for the docketing of a civil penalty proceeding so the
contest and civil penalty proceeding could be consolidated.
~at 308.
(Emphasis added.) However, the Secretary's reliance
on Energy is misplaced. In Energy, the Commission, after
discussing the "d" chain withdrawal order process, stated:
Inasmuch as a citation and related withdrawal orders
may be issued before the Secretary has proposed a
penalty, the operator's interest in immediately
contesting the allegation of violation and the special
findings in a citation may be considerable (emphasis
added). Id. at 308.
In Energy, the Commission concluded that 11 • • • the purposes of the
Act and the interests of the parties are best served by
permitting an operator ( facing a "d" chain] to contest the
citation immediately upon its issuance." ~at 309. Consistent
with Energy, the Secretary's Motion for Continuance shall be
denied.
Having determined that the relief sought by both parties is
inappropriate, I will proceed with routinely setting these cases
for hearing. Accordingly, these proceedings are scheduled for
hearing on the merits on March 30, 1994, in Morgantown,
West Virginia, at a site to be designated by subsequent order.
The issues ·will be whether the contestant has committed the
violations as alleged, and, if so, whether the violations
occurred as a result of the contestant's unwarrantable failure.
The parties shall send to each other and to me no later than
March 16, 1994, synopses of their anticipated legal arguments,
lists of exhibits and any stipulations which may be jointly
introduced at trial.
ORDBR

The contestant's Motion for Expedited Hearing IS DBNIBD.
The Secretary's Motion for Continuance IS DENIED. As noted
above, these cases ARE SCHEDULED for consolidated hearing on
March 30, 1994.
~

LJ:3J;> ~

>

Jerold Feldman
Administrative Law Judge
(703) 756-5233

497

Distribution:
Elizabeth s. Chamberlain, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Robert Stropp, Esq., United Mine Workers of America, 900 15th
Street, Washington, D.C. 20005 (Certified Mail)
/ 11

498

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

20006

fEB 2 4 '994
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 94-294
A. C. No . 15-17134-03514
No. 4 Mine

v.
KYN COAL COMPANY
I NCORPORATED ,
Respondent

ORDER TO ADVI SE

The Secretary has filed a petition for the assessment of
three civil penalties in the above captioned action . The citations allege that respirable dust samples submitted to the
Secretary by the operator were invalid because respirable dust
had been removed from the samples before submission.
There is presently pending for decision before Administrative Law Judge James A. Broderick a case involving alleged
tampering of respirable dust cassettP.s at the Urling No. 1 Mine
of Keystone Coal Corporation (Master Docket No . 91-1). A hearing
on this matter was held November 30, 1993, through January 6,
1994 . Previously, a common issues trial was held which lasted
from December 1, 1992 to February 22, 1993, and a decision on the
common issues was rendered on July 20, 1993 (15 FMSHRC 1456).
It does not appear from the record whether the issues in
the instant case are identical to those in the Master Docket.
However, the Master Docket is a matter of first impression with
respect to alleged tampering of dust cassettes. It appears
therefore, that at the very least, the decision to be issu ed in
that case might be of gen eral assistance in this proceeding.
Accordingly , I propose to place this case on stay pending t h e
decision in the Master Docket.
In light of the foregoing, it is ORDERED that within 21 days
of the date of this order the parties advise me in writin g of
t h eir views with r espect to a stay .

Paul Merlin
Ch ief Admin i strative Law Judge

499

Distribution:

(Certified Mail)

Edward H. Fitch, Esq., Office of the Solicitor, . u. S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, PSC, P.
Box 351 , Pikeville, KY 41502

o.

Mr. Elmer Fuller, KYN Coal Company, Inc ., P.O . Box 35 , Vansant,
VA 24656
/gl

•u.s. GOVEB!IKEJIT PRINTING OFFICE: 1994-301-878/13376

500