OCTOBER 1991
COMMISSION DECISIONS
10-31-91

Utah Power & Light Company

WEST 90-285-R

Pg. 1617

WEST 91-196-CM
EAJ 91-1
CENT 90-146-M
KENT 89-242-R
WEST 90-201-M
PENN 91-1488-R
SE
91-95-D
WEVA 91-142
WEVA 91-1993-D
CENT 90-110
WEST 91-143-DM

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1629
1634
1635
1641
1649
165 7
1665
1679
1687
1688
1707

WEVA 90-266
KENT 89-186
SE
92-1-DM
WEST 90-262
WEST 91-57-M

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17'09
1710
1714
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ADMINISTRATIVE LAW JUDGE DECISIONS
10-07-91
10-07-91
10-10-91
10-10-91
10-11-91
10-16-91
10-16-91
10-16-91
10-16-91
10-21-91
10-21-91
10-21-91
10-24-91
10-24-91
10-28-91
10-28-91

Steven Brown, USWA v. Sunshine Mining Company
Beco Construction Company, Inc.
Carroll Frank Bluemel/South Texas Aggregates
Gatliff Coal Company, Inc.
JCAL Incorporated
Air Products and Chemicals, Inc.
Willie Williams, Jr. v. Jim Walter Resources
Mack Energy Company
J. Mike Plevich v. _Consolidation Coal Co.
San Juan Coal Company
Sec. Labor for Martin L. Richardson v.
F.K.C. Incorporated
Pigeon Branch Coal Company
Lanham Coal Company
Sec. Labor for Jimmie L. Callan v. S&S Material
Mountain Coal Company
Asamera Minerals (US) Inc.

ADMINISTRATIVE LAW JUDGE ORDERS
09-30-91
10-04-91
10-07-91
10-18-91

Order relating to Master Docket No. 91-1,
Contests of Respirable Dust Sample Alteration Citations
see above - Plan and Schedule of Discovery
see above - Order to Produce Documents
Dotson & Rife Coal Co., et al.

Pg. 1727
Pg. 1729
Pg. 1750
Pg. 1762

OCTOBER 1991
Review was sranted in the following cases during the month of October:
Peabody Coal Company v. Secretary of Labor, MSHA, Docket No. KENT 91-179-R,
KENT 91-185-R. (Judge Melick, August 30, 1991)
Secretary of Labor, MSHA v. U.S. Steel Mining Company, Docket No. WEVA 91-73.
(Judge Koutras, September 16, 1991)
Secretary of Labor, MSHA v. LJ's Coal Corporation, Docket No. VA 90-7.
(Judge Weisberger, September 18, 1991)
The following list of miners filed for review of the decision of Chief Judge
Merlin issued on September 4 and 5, 1991. Review was granted on October 15.
Larry Flynn, SE 91-538-R Donald Case, WEVA 91-1614-R
Everette Ballard, WEVA 91-1385-R
Benny Johnson, KENT 91-934-R thru 955-R
Brent Roberts, KENT 91-896-R
Paul Cotton, KENT 91-897-R
Steve Little, KENT 91-898-R
Sydney Pie, KENT 91-992-R
Robert Bennett, LAKE 91-478-R
Sharell Clark, WEVA 91-1331-R
James Matics, WEVA 91-1332-R
Robert Persinger, WEVA 91-1333-R
Jimmy Hayworth, WEVA 91-1525-R
Reggie Philyaw, WEVA 91-1926-R
James Jack, LAKE 91-503-R thru 529-R
John S. Biby, LAKE 91-530-R thru 605-R
Kimmie Noah, SE 91-544-R thru 655-R
Sandra Eastham, WEVA 91-1414-R thru 1435-R
Kevin Tustin, WEVA 91-1436-R thru 1493-R
Daniel Serge, WEVA 91-1386-R, WEVA 91-1494-R thru 1509-R
Steven Perkins? WEVA 91-1510-R thru 1524-R
There were no cases filed where review was denied.

COMMISSION DECISIONS

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

October 31, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEST 90-285-R

UTAH POWER & LIGHT COMPANY,
MINING DIVISION
BEFORE:

Backley, Doyle, Holen and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This review proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1988) (the "Mine Act" or "Act"). It
involves the validity of a withdrawal order issued by the Secretary of Labor
to Utah Power & Light Company, Mining Division ("UP&L"), alleging that the
limited visibility of operators of EIMCO 915 diesel scoops ("scoops") created
an imminent danger. The imminent danger withdrawal order was issued by an
inspector of the Department of Labor's Mine Safety and Health Administration
("MSHA") under section 107(a) of the Mine Act, 30 U.S.C. § 817(a), at UP&L's
Cottonwood Mine. 1 The withdrawal order did not charge UP&L with violation
of any of the safety standards promulgated by the Secretary and no citations
or orders were issued under section 104 of the Act, 30 U.S.C. § 814, in
conjunction with the section 107(a) withdrawal order.

1

Section 107(a) of the Mine Act provides, in pertinent part:
If, upon any inspection or investigation of a coal
or other mine which is subject to this [Act], an
authorized representative of the Secretary finds that an
imminent danger exists, such representative shall
determine the extent of the area of such mine throughout
which the danger exists, and issue an order requiring
the operator of such mine to cause all persons, except
those referred to in section [104(c)], to be withdrawn
from, and to be prohibited from entering, such area
until an authorized representative of the Secretary
determines that such imminent danger and the conditions
or practices which caused such imminent danger no longer
exist.

30 U.S.C. § 817(a).

1617

Following an expedited evidentiary hearing, Commission Administrative
Law Judge Michael A. Lasher affirmed the section 107(a) withdrawal order.
Utah Power and Light Co., 12 FMSHR.C 1706 (August 1990)(AIJ). The Commission
granted UP&L's Petition for Discretionary Review challenging the judge's
determination that an imminent danger existed. For the reasons that follow,
we reverse the judge's decision.
I.

Factual and Procedural Background
UP&L operates the Cottonwood Mine in Emery County, Utah. UP&L uses the
scoops at issue in the main haulageways to haul material into and out of the
mine and to move equipment around in the mine. The scoops 2 weigh about 20
tons each and are about 30 feet long, eight feet wide and six feet high. They
travel at an average speed of five miles per hour with a top speed of seven
miles per hour. When loaded with heavy material, such as gravel, they travel
as slowly as one to two miles per hour. Tr. 251. The two scoops were
purchased in 1985 and have been in almost continuous use, three shifts a day,
since that time. Tr. 152-53. The operator's cab on each scoop is located on
one side of the scoop rather than in.the center, and the operator sits
sideways facing the opposite side of the scoop. Since their introduction into
the mine, the scoops have been involved iµ about 15 accidents, none of which
resulted in a lost time injury to a miner or required a report to be filed
with MSHA under 30 C.F.R. Part 50 (reporting of accidents, injuries and
illnesses). As discussed further below, UP&L does not dispute that scoop
operators cannot directly see all areas around the scoop due to blind spots on
the side of the scoop opposite the operators cab (the "offside").
A.

Events preceding the issuance of the order

On April 9, 1990, a parked Isuzu pickup truck ("pickup") used by Nick
Manning was struck by a scoop. The pickup was parked in a haulage entry and
was unoccupied at the time of the collision.
On May 13, 1990, Steven
Thornton, President of the UM.WA local, wrote to Randy Tatton, UP&L's safety
director for the mine, concerning safety problems in the haulageways. The
letter summarized the safety concerns of heavy equipment operators and
suggested several improvements. Exh. A-6. UP&L responded with a letter dated
May 16, 1990, that set forth changes being made to resolve the union's safety
concerns. Exh. A-5. These changes included, for example, installing quartz
halogen lights on the scoops, realigning the fenders on the scoops to improve
visibility, and improving haulage operating procedures. On May 20, 1990, MSHA
received a request for an inspection under section 103(g) of the Act. 3
The
2

Al though UP&L uses two scoops at the mine, which are essentially the
same, the MSHA inspector issued the order of withdrawal based on his examination
of one of the scoops.
3

Section 103(g) of the Mine Act provides, in pertinent part:
Whenever a representative of the miners has
reasonable grounds to believe that a violation of a

1618

section 103(g) complaint alleged that visibility limitations on the scoops
created an imminent danger.
On May 22, 1990, MSHA Inspector Fred Marietti was sent to investigate
the complaint. Inspector Marietti determined that safe operation of the
scoops depended upon the adoption of safe working procedures in the
haulageways. He noted that traffic rules needed to be followed and other
precautions needed to be taken to operate the scoops safety. He concluded by
stating that "(a]t the time of this investigation, the problems addressed have
been implemented or are being worked on." Exh. A- 7. He issued no citations,
withdrawal orders or safeguards.
B.

Order of withdrawal

Subsequently, MSHA Inspector Jerry Lemon was instructed by the MSHA
District Manager to take a "second look" into the complaint. Tr. 29.
Inspector Lemon inspected the mine on July 12, 1990, and issued the section
107(a) order of withdrawal that is the subject of this proceeding, requiring
UP&L to withdraw both scoops from the mine. The order states that "[s]afe
operation of the EIMCO 915 diesel scoop .•• could not be done in that ...
serious vis[i]bility problems existed ... 11 Exh. G-1.
Inspector Lemon performed his inspection in two parts. First, he asked
UP&L for permission to examine a scoop on the surface, where he performed a
number of visibility tests. In one test a miner was placed four feet from the
side of the scoop opposite the operator's cab and was asked to walk parallel
to the scoop towards the radiator end of the scoop. Exh. G-1; 12 FMSHRC at
1714. During this test, the scoop operator could not see this miner for a
distance of approximately 24 feet as he walked parallel to the scoop.
Id.
The inspector also performed a number of tests underground. In one
test, the scoop was parked in an offside turning position (as if making a left
turn into a crosscut) and a pickup located in the crosscut was backed away
mandatory heal th or safety standard exists, or an
imminent danger exists, such representative shall have
a right to obtain an immediate inspection by giving
notice to the Secretary or his authorized representative
of such violation or danger. Any such notice shall be
reduced to writing, signed by the representative of the
miners, and a copy shall be provided the operator or his
agent no later than at the time of inspection, except
that, upon the request of the person giving such notice,
his name and the names of individual miners referred to
therein shall not appear in such copy. Upon receipt of
such notification, a special inspection shall be made as
soon as possible to determine if such violation or
danger exists in accordance with the provisions of this
title.

30 u.s.c. § 813(g).

1619

from the scoop. Exh. G-1; 12 .FMSHRC at 1715. The operator could not see the
pickup during this test but could see the glare of the pickup's lights on the
mine roof. Id. After performing these tests, Inspector Lemon issued the
order of withdrawal later that day. The following day the inspector modified
the order to describe accidents that the inspector believed were caused by the
visibility limitations of the scoopa and to correct a portion of the original
order. Exh. G-1.
UP&L contested the order and an expedited hearing was held. on July 19,
1990. On September 7, 1990, after the judge's decision was issued, the order
was terminated when certain modifications were made to the scoops.
In concluding that the visibility limitations associated with the scoops
presented an imminent danger, the judge relied on the Commission's decision in
Rochester & Pittsburgh Coal Company, 11 FMSHRC 2159 (November 1989). The
judge first concluded that.an "emergency" situation is not a prerequisite to
the existence of an imminent danger. 12 FMSHRC at 1722. Based on his reading
of Rochester & Pittsburgh, the judge then evaluated the potential risk of the
scoops causing serious physical harm at any time. Id. The judge credited
Inspector Lemon's testimony that a miner could be killed or seriously injured
if the condition was allow~d to continue.· 12 FMSHRC 1722-23. After rejecting
the arguments made by UP&I,., the judge held that he could "find no basis for
concluding that Inspector.Lemon abused his discretion or authority in the
issuance of an imminent danger withdrawal order in this matter." 12 FMSHRC at
1725. The judge then stated:
It is concluded that the conditions observed by the
Inspector and described in the record could reasonably have been
expected to cause death or serious physical harm to a miner if
normal mining operations were permitted to proceed, and that the
use of the [scoops] with the severe visibility limitations
described herein above created a significant potential of causing
serious physical harm at any time.

II.

Disposition of Issues
The issue in this case is whether the visibility limitations of the
scoops created an imminent danger requiring their immediate removal from
service. UP&L disputes that the danger presented by the visibility
limitations of the scoops was imminent at the time the order of withdrawal was
issued and argues that the alleged hazard was not so serious or imminent that
immediate withdrawal of miners was required. 4
We hold that the Secretary
4

UP&L also argues that Inspector Lemon's alleged hesitation and delay in
issuing the imminent danger order supports its view that the order is not valid.
The judge rejected UP&L's argument .. 12 FMSHRC at 1723-25. We agree with the
judge that "[f]orcing a hasty decision may not always be consistent with either

1620

failed to prove that the visibility limitation presented a danger that was
imminent.
A.

Requirement of imminence

The word "imminent" is defined as "ready to take place: near at hand:
impending ... : hanging threateningly over one's head: menacingly near."
Webster's Tbird New International Dictionary (Unabridged) at 1130 (1986). The
language of the Act and its legislative history make clear that Congress
intended that there must be some degree of imminence to support a section
107(a) order.
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). This
definition was not changed from the definition contained in the Coal Mine
Health and Safety Act of 1969 30 u.s.c. § 801 et seq. (1976)(amended l977)(the
"Coal Act 11 ) . The Senate Report for the Coal Act states that an imminent
danger is present when "the situation is so serious that the miners must be
removed from the danger forthwith when the danger is discovered without
waiting for any formal proceeding or notice." S. Rep. No. 411, 9lst Cong.,
1st Sess 89 (1969) reprinted in Senate Subcommittee on Labor, Committee on
Labor and Public Welfare, 94th Cong., 1st Sess. Part 1 Le&islatiye History of
the Fed@ral Coal Mine Health and Safety Act of 1969 at 215 (1975)("Coal Act
Leds. Hist. 11 ) It further states that the "seriousness of the situation
demands such immediate action" because "[d]elays, even of a few minutes, may
be critical or disastrous." The Conference Report for the Coal Act states
that imminent danger orders are concerned with 11 any condition or
practice ... which may lead to sudden death or injury ;efore the danger can be
abated." Coal Act Le&is. Hist. at 1599 (emphasis added). Finally, the Senate
Report for the Mine Act states that imminent danger orders deal with
"situations where there is an immediate danger of death or serious physical
harm." 5 s. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977) reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd
Sess., Le&islatiye History of the Federal Mine Safety and Health Act of 1977
at 626 (1978)("Mine Act Le&is. Hist.")(emphasis added). Thus, the hazard to be
protected against by the withdrawal order must be impending so as to require
the immediate withdrawal of miners.
The role of section lO?(a) orders in the statutory scheme of enforcement
sound mine safety enforcement or justice." 12 FMSHRC at 1725. In any event,
Inspector Lemon reasonably believed that the scoops were out of service during
the time he was deciding what action to take.
5

Several courts have rejected the arguments of mine operators that
imminent dangers orders can be issued only for conditions that create an
immediate danger of death or serious injury. See, e.g. Old Ben Coal Corp. v.
IBMA, 523 F. 2d 25 at 32-33 (?th Cir. 1975). Nevertheless, the Senate Report
makes clear that imminence is required.

1621

is based on a requirement of imminence. Imminent danger orders permit an
inspector to remove miners immediately from a dangerous situation, without
affording the operator the right of prior review, even where the mine operator
did not create the danger and where the danger does not violate the Mine Act
or the Secretary's regulations. This is an extraordinary power that is
available only when the. "seriousness of the situation demands such immediate
action." Coal Act I.egis. Hist. at 215. As a consequence, an inspector does
not have the authority to issue a section 107(a) order in situations where the
danger does not necessitate the immediate removal of miners.
Thus, the
inspector must determine whether the ~azardous condition presents a danger of
death or serious injury that is imminent. Without considering the "percentage
of probability that an accident will happen," the inspector must determine
whether the condition presents an impending threat to life and limb. Mine Act
Legis. Hist. at 626. Only by limiting section 107(a) withdrawal orders to
such impending threats does the imminent danger provision assume its proper
function under the Mine Act.
If the imminent danger provisions of the Act are interpreted to include
any hazard that has the potential to cause a serious accident at some future
time, the distinction is lost between a hazard that creates an imminent danger
and a violative condition that "is of s.uch nature as could significantly and
substantially contribute to the cause and.effect" of a mine safety hazard.
Section l04(d)(l); 30 U.S.C. § 814(d)(l). A violation is of a significant and
substantial ("S&S") nature if "there exists a reasonable likelihood that the
hazard.contributed to will result in an injury or illness of a reasonably
serious nature." Cyent Division. National Gypsum Company, 3 FMSHRC 822, 825
(April 1981). In that case, the Commission held that to be of an S&S nature,
a cited condition "need not be so grave as to constitute an imminent danger.n
3 FMSHRC at 828.
In Rochester & Pittsburgh, the Commission referenced Congress's
intention that the focus should be on an examination of the "potential of the
risk to cause serious physical. harm at any time." 11 FMSHRC at 2164. The
judge appeared to base his decision on his interpretation of the phrase "at
any time,'' The Commission used the phrase "potential of the risk to cause
injury" to make clear that the percentage of probability of an injury is not
the focus of the inquiry. It appears that Judge Lasher interpreted the phrase
"at any time" to mean "at any time in the future," thereby eliminating any
requirement that the.danger be imminent or impending. The Commission used the
phrase "at any time" in the sense of "at any moment." Where an injury is
likely to occur at any moment, and an abatement period, even of a brief
duration, would expose miners to risk of death or serious injury, the
immediate withdrawal of miners is required.
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, albeit acting in good
faith, abuses his discretion in the sense of making a decision that is not in
accordance with law when he orders the immediate withdrawal of miners under
section 107(a) in circumstances where there is not an imminent threat to

1622

miners. 6
B.

Analysis of the record

A review of the record as a whole demonstrates that the Secretary failed
to prove that the visibility limitation of the scoops presented a danger that
was imminent.
1.

Visibility measJU.'einents

UP&L does not dispute the results of the visibility tests, but contends
that the tests do not demonstrate the presence of an imminent danger.
Substantial evidence supports the judge's finding that, during the surface
test, the scoop operator could not see a miner who was walking parallel to and
four feet from the side of the scoop opposite the operator's cab, for a
distance of approximately 24 feet. 12 FMSHR.C at 1714. Substantial evidence
also supports the judge's finding that, during an underground test, while the
scoop was parked in an off-side turning position, the operator of the scoop
could not see a pickup as it backed away from the scoop. 12 FMSHRC at 1715.
The judge relied on these tests, along with the history of prior
accidents, in concluding that an imminent danger existed. While he noted that
UP&L's operating practices and procedures were designed to address the hazard
associated with the scoop's visibility limitations, he concluded that they
"did not change the testing and measuring results." 12 FMSHRC at 1719. UP&L
argues that because these tests did not take actual mining conditions or
practices into account, the tests were incapable of proving that the scoops
presented an imminent danger. UP&L contends that no imminent danger existed
because scoop operators could identify the presence of miners and other
vehicles during actual mining operations and could mitigate the danger through
the use of safe operating procedures.
The tests performed by the inspector do not, by themselves, establish
existence of an imminent danger because they did not take into account
actual working conditions. For example, the underground test described above
did not duplicate actual operating conditions. The scoop was stationary
during the entire test and was parked so that the blind spot was in the
~he

6

Abuse of discretion may be broadly defined to include errors of law,
See generally, Butz v. Glover Liyestock Commission Co., 411 U.S. 182, 185-86
(1973); NL Industries. Inc. v. Department of Transportation, 901F.2d141, 144
(D.C. Cir. 1990); U.S. v. U.S. Currency. in the Amount of $103.387.27, 863 F.2d
555, 561 (7th Cir. 1988); Bothyo v. Moyer, 772 F.2d 353, 355 (7th Cir.
1985)("abuse of discretion may be found only if there is no evidence to support
the decision or if the decision is based on an improper understanding of the
law"); Bosma v. United States Dept. of Agriculture, 754 F.2d 804, 810 (9th Cir.
1984) (the choice of sanction is largely within an agency's discretion; the
reviewing court may overturn it only if it is unwarranted in law or unjustified
in fact); Taylor y. United States Pa:i;ole Commission, 734 F.2d 1152, 1155 (6th
Cir. 1984)("'Abuse of discretion' is a phrase which sounds worse than it really
is."); Beck v. Wings Field, 122 F.2d 114 (3rd Cir. 1941).

1623

direction of the crosscut. Exh. G-5. As a result, the pickup was not visible
for a considerable distance. In an operating situation, however, the scoop
would complete the turn and the crosscut would become visible because it would
no longer be in the operator's blind spot. Tr. 189. An analysis of the
operating procedures used by scoop operators is therefore required.

2.

Haulaae operatin& procedures

UP&L's argument is that at the time the order was issued, no imminent
danger existed because physical conditions and operating procedures in the
haulageways greatly reduced any visibility problems presented by the scoops.
In particular, UP&L relies on the fact that it strengthened its haulage safety
procedures in response to the UMWA's letter of May 13, 1990 and Inspector
Marietti's investigation of May 22 . .ii§. Exhs. A-5, A-6, A-7 & A-8. It is
undisputed that UP&L made a number of improvements in the operating procedures
prior to Inspector Lemon's July 12, 1990 inspection. In May and June 1990,
UP&L: (1) installed brighter lighting systems on scoops (quartz halogen
lights), (2) modified the fenders, cab and engine cowling on scoops to improve
visibility, (3) required pickups and other small vehicles to use other
roadway• where feasible, (4) installed strobe lights on pickups to be used
when parked, 7 (5) required.all piclaips and other small vehicles to yield
right·of-way to scoops by pulling into crosscuts whenever a scoop approaches,
(6) required all vehicles, especially pickups, to maintain a safe rate of
speed, (7) required the flashing of lights and the sounding of horns at all
corners and intersections, (8) required that pickups be ·parked in crosscuts
and prohibited the parking of vehicles in the haulage entries, and (9)
eliminated the visibility limitations at one of the most severe dips in the
mine by cutting back the roof. Exh. A-8. These procedures were communicated
to all affected miners. Tr. 172-73.
Scoop operators, aware of the scoop's visibility limitations, testified
about the operating procedures they use to reduce the risk of collisions and
accidents. Tr. 235-36. They stated that the improved haulage procedures
introduced in May and June 1990 reduced the risk of accidents and collisions,
For example, pickups had frequently been parked in the haulage entries or at
!:he intersections of crosscuts and entries where they could not be seen. As a
result, several collisions had occurred. Under the procedures in effect at
the time of the withdrawal order, parking in such locations was prohibited
and, more importantly, strobe lights or flashers were used on the pickups.
Tr. 125-26, The operators testified that, as a result of the strobe light
policy, they are now aware of the presence of such vehicles and can stop the
scoop, get out and move the pickup if it is in the way. Tr. 126; 131-33; 23233; 243; 279. They may not always be able to see the parked pickup from the
1

At the time of Lemon's inspection, strobe lights had been installed
on about 75% of pickups. Pickup drivers were required to use yellow flashers
until strobe lights were installed. The strobe lights, similar to the blue
lights on the top of police cars, are permanently mounted on top of the pickups'
cabs. The yellow flashers, similar to yellow flashers used on road construction
barricades, are placed on top of the cab by the driver using the attached suction
cup.

1624

cab of the scoop, but the flashing light alerts them to its presence so that
they can take preventive action. Id. They stated that they can detect a
moving pickup from the glare of its lights. Tr. 231-32; 272.
Scoop operators testified further that the new halogen lights made it
easier to see and be seen. Tr. 230-32, 285-87. Scoop operators flash their
lights and blow their air horns when making turns and at dips in the entry.
Tr. 236-37. They also testified that pedestrians are rarely in the
haulageways where scoops travel and that such pedestrians are easily spotted
because of the cap light and reflective tape on their hard hat, and the
reflective tape on their clothing. Tr. 252~56; 273; 280; 285-86; 296; 309.
The scoop operators acknowledged that visibility from a scoop is limited, but
testified that that visibility is often restricted when operating mining
equipment. They are of the opinion that the scoops can be operated without
incident as long as safe operating procedures are followed. Tr. 135-36; 22829; 231; 243-44; 274-75; 279-80.
Inspector Lemon was aware of UP&L's work rules but he did not believe
that those work rules solved the visibility problems. Tr. 385. He went on to
state that "[t]hey were adding safety precautions to take, but they were not
solving this [visibility] problem-.·" Tr. 386. Judge Lasher also recognized
that these changes had been made, but concluded that these changes "did not
change the testing and measuring results ... nor the opinions of various
credible witnesses ... as to the visibility problem." 12 FMSHRC at 1719. In
essence, both the inspector and the judge determined that no matter what work
rules were adopted or how strictly they were enforced, the visibility problems
of the scoops created an imminent danger.
The inspector testified that he was concerned with three situations in
which there might be an injury-producing accident: (1) when the scoop is
making an offside turn, (2) when a dip in the haulageway limits the scoop
operator's line of vision, and (3) when pedestrians are present. The issue in
this case is not whether the visibility limitations of the scoops presented
some degree of hazard in these situations but whether the scoops created an
imminent danger.
As noted above, when a scoop operator makes· an offside turn, his
visibility is reduced during that turn. The scoop operators testified that
they were aware of this limitation and regularly take steps to reduce the
hazard. Tr. 230-31. Some of these steps were included in the new operating
nrocedures. Operators regularly slow down, sound their air horns and flash
their lights when turning. Tr. 188; 236-37. They look for light reflections
on the roof and ribs to detect the presence of vehicles. Tr. 231-32.
, if they are uncertain as to what may be in the area, they stop, get
out of the scoop and look around before turning. Tr. 121-22; 231.
When scoop operators and operators of pickups and other small vehicles
approach a dip in the mine, their visibility is reduced because they cannot
see as far down the entry. UP&L instituted a number of changes to reduce this
hazard. First, it eliminated the line of sight problem at one of the biggest
dips by cutting back the roof in the dip. Second, operators of vehicles sound
their horns and flash their lights before entering a dip. Tr. 236. Third,

1625

pickups and other small vehicles use alternate roadways rather than the main
haulageway when traveling in the mine. Tr. 161-62. Finally, scoops are given
the right of way and pickups are to pull into a crosscut whenever they see an
approaching scoop. Tr. 163; 230; 253. The brighter halogen lights, which are
unique to scoops, alert pickup drivers that a scoop is approaching. While
these practices do not eliminate the hazard, they reduce significantly the
danger associated with dips.
There has never been a scoop acci.dent in this mine involving
pedestrians. There are very few pedestrians in the main haulageways in which
the scoops travel. Tr. 253; 280. Pedestrians are most likely to be
encountered when repairs are being made along the haulageway and at the places
where the scoops are delivering supplies. Tr. 253; 280. Flashing lights are
set up in areas where repair work is being done. Tr. 280. Miners also wear
cap lights and reflective tape on their hard hats and on their clothing.
Tr. 252, 284; 286. At locations where supplies are to be delivered, a miner
on the ground often directs the scoop operator or, if no one is available, the
scoop operator gets out and looks around before proceeding into the area.
Tr. 122; 245-46. The scoop operators testified that they have no difficulty
detecting the presence of pedestriat_li;i because of the reflective tape and cap
lights. Tr. 124; 252; 255; 273; 288-90. A scoop operator testified that
miners on foot generally make their presence known to machine operators by
flashing their cap lights at the operators. Tr. 308-09.
3.

Accident history

It is not disputed that there have been approximately 15 accidents
involving the scoops in the five years that they have been used. None of
these accidents resulted in an occupational injury as that term is defined in
30 C.F.R. § 50.2(e); 8 one accident required the application of first aid,
30 C.F.R. § 50.2(g). All of these accidents occurred before UP&L changed its
haulage operating procedures. Eight of the 14 accidents discussed in the
record involved scoops hitting unoccupied pickups that were parked in a
haulageway, a crosscut, or in an intersection. The scoop operators testified
that they cannot always see a pickup when it is parked offside the scoop but
that they can determine its location when it is equipped with a strobe light
and can move i t if necessary. Tr. 126; 131-33; 232-33; 243; 279.
Judge Lasher emphasized in his decision an accident involving Robert
Phelps and Larry Hunsaker. 12 FMSHRC at 1716. Scoop operator Phelps was
t=aveling along the main haulageway with a load of gravel in his bucket.
Tr. 100. He had the bucket in a raised position in front of him. Hunsaker
was driving a pickup in the opposite direction. Tr. 100-01; 111. They
collided head on at a dip in the haulageway. Id. Phelps said he could not
see very well over the raised, fully loaded bucket. Tr. 101. The bucket hit
the cab of the pickup. Tr. 102; 111. Hunsaker did not see the scoop because
8
30 C.F.R. § 50.2(e) defines "occupational injury" as "any injury to
a miner which occurs at a mine for which medical treatment is administered, or
which results in death or loss of consciousness, inability to perform all job
duties on any day after an injury .... "

1626

he was reaching down for his radio. Tr. 103. He testified that he could not
see the lights of the scoop because they were behind the bucket. Tr. 113;
116. Phelps stated that he saw the pickup before he entered the dip. Tr.
104. Hunsaker testified that if Phelps had been driving the scoop so that the
bucket was at the back and the radiator was at the front, Hunsaker would "have
had a lot better chance of seeing the [scoop's] headlights." Tr. 118.
The record discloses that at least four factors contributed to this
accident: the dip in the roadway; the fact that Phelps was driving the scoop
with a loaded bucket in a raised position in front of him, blocking bis vision
and obscuring the scoop's lights; the fact that Hunsaker reached down for his
radio; and the speed of the pickup. Phelps was unable to see the pickup
because the position of his bucket restricted his vision. Two scoop operators
testified that they drive the scoop with the radiator in the front and the
bucket in the back when the bucket is loaded with bulky materials.
Tr. 235; 298. The measures UP&L has taken since this accident, as discussed
above, are aimed at eliminating the risk of similar accidents.
The evidence demonstrates that haulage operating procedures used at the
time the imminent danger order was,;i.ssued significantly reduced the risk of
accidents. Scoop operators testified that most of these accidents would not
have occurred if these procedures had been in place. See, e.g., Tr. 237-238.
The history of accidents provides little support for the imminent danger
finding.
III.

Conclusions
The evidence of record fails to establish that the scoops presented a
danger to miners that posed an imminent or impending threat to their safety.
The withdrawal of miners under section 107(a) is authorized only where the
danger is imminent. Thus, we conclude that MSHA issued a withdrawal order
under section 107(a) under circumstances where an imminent.threat to the
safety and health of miners was not present. 9
We reaffirm our holding in Rochester & Pittsburgh that an inspector must
have considerable discretion in determining whether an imminent danger exists.
This is because an inspector must act immediately to eliminate conditions that
create an imminent danger. We also reiterate here that the hazardous
condition or practice creating an imminent danger need not be restricted to a
threat that is in the nature of an emergency, and that section 107(a)
withdrawal orders are "not limited to just disastrous type accidents. 11 Coal
9

We note that the inspector in this case was not limited to the
provisions of section 107(a) in addressing hazards presented by the scoops. For
example, he might have utilized the safeguard provision of section 314(b) of the
Act, 30 U.S.C. § 874(b), which was designed to address mine-specific
transportation hazards, to tailor a notice to provide safeguard. If the operator
failed to comply with the safeguard, he could have issued a citation or order
under section 104 with an appropriate abatement time.

1627

Act Legis. Hist. at 1599.
For the foregoing reasons, we reverse the judge's decision holding that
the two EIMCO scoops presented an imminent danger to miners and we vacate the
section 107(a) order of withdrawal. 10

oyceA: Doyle, Commissi;her

&~~
L. Clair Nelson, Commissioner
Distribution:
Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, DC 20004
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Mary Lu Jordan, Esq.
United Mine Workers of America
900 15th Street, N.W.
Washington, DC 20005
Administrative Law Judge Michael A. Lasher, Jr.
Federal Mine Safety & Health Review Commission
1244 Speer Blvd., Room 280
Denver, CO 80204

10

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

1628

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

OCT 7 1991

COMPENSATION PROCEEDING

STEVEN BROWN for UNITED
STEELWORKERS OF AMERICA,
District 38, Subdistrict 7,
Applicants

.:
..
.

v.

Docket No. WEST 91-196-CM
Sunshine Mine

SUNSHINE MINING COMPANY,
Respondent
DECISION
Before:

Judge Morris

Complainants seek relief· under the Federal Mine Safety and
Health Act of 1977, 3,0 u.s·.c. § 801 et.~ (the "Act").
The complaint states as follows:
Contract miners at the Kellogg operation are
paid on an agreed to incentive basis in relation to the work done. This rate usually exceeds the hourly rate of a grade 7 miner. In
completing the required MSHA safety training,
these miners are deprived of the ogportunity
to earn contract rate. The employer insists
that they are only required to pay these miners the days pay rate of grade 7 for time
spent in MSHA safety training. The Union does
not agree. Since the normal rate of pay for
the miners in question is based on their contract, they should receive compensation at
that rate when training.
In support of their position Complainants submitted (Exhibit
B) 0 an employment agreement between the United Steel Workers of
America and Sunshine.
Complainants state that "Gypo" miners at Sunshine are paid
by a complicated incentive system. Basically the system is based
on the amount of work done by the individual miner. "Gypo miners
are disciplined by the Company for failure to meet what the Company considers the reasonable incentive production level."
The crux of Complainants' case is that the normal rate of
pay for a 11 Gypo" miner is his incentive rate of pay. Therefore,
the miners should be paid at the incentive rate when undergoing
mandatory health and safety training.

1629

In addition to the captioned case, Complainants have also
filed a grievance under the terms of their employment contract
with Sunshine.
In support of their position, Complainants further rely on
Section 115(b) 1 of the Mine Act as well as 30 C.F.R. Part 48, 2
relating to the training and retraining of miners.

1

The cited portion of the Act reads as follows:
"(b) Any health and safety training provided
under subsection (a}· shall be provided during
normal working hours. Miners shall be paid at
their norrna 1 rate of compensation while they
take such training, and new miners shal-1 be
paid at their starting wage rate when they
take the new miner training. If such training
shall be given at a location other than the normal place of work, miners shall also be compensated for the additional costs they may incur
in attending such training sessions.

2

Complainants rely on the following regulations:

Training shall be conducted during normal working hours~ miners attending such training shall receive the rate of pay as provided in 48.2(d) (Definition of normal working hours> of this subpart A&
30 C.F.R. § 48.2(d)

(d) 11 Normal working hours" means a period of
time during which a miner is otherwise scheduled
to work. This definition does not preclude scheduling training classes on the sixth or seventh
working day if such a work schedule has been established for a sufficient period of time to be
accepted as the operator's common practice. Miners shall be paid at a rate of pay which shall
correspond to the rate of pay they would have
received had they been performing their normal
work tasks.

1630

Sunshine asserts miners are paid their normal rate of pay
for mandatory health and safety training.
The operator claims no
incentive pay is earned or due for time spent in such training.
Specifically, Sunshine claims there is only one rate of pay
which is the rate set by the labor management agreement.
The
agreement states as follows:
ARTICLE IV

Classification and Rates of Pay

4.1 All job classifications of work coming
under the jurisdiction of the Union and the
rates of pay applicable thereto shall be
set forth in schedule "A" which is attached
hereto and by reference made a part hereof.
The said sbhedule "A" shall set forth all
classifications coming under the terms of
this Agreement and explains other forms of
compensation such as profit sharing and common stock distribution.
(emphasis added).
Schedule "A" to the agreement states:
The "wage rates" for classifications of employees represented by the United Steelworkers of America at the Kellogg Operations will
be the rates shown on the Wage Table.
(emphasis added)o
Sunshine further relies on the Grievance and Arbitration
portion of collective bargaining agreement which provides as
follows:
ARTICLE XV
Grievance and Arbitration
Any question or dispute concerning compl
ance by the Company withu or interpretation or
application of this Agreement, memoranda or supplemental agreements concerning wages, hours
and other terms and conditions of employment,
shall be treated as a claimed grievance in the
sequence outlined as grievance procedure until
settled. Should an agreed settlement be lacking

1631

at the final stage of the grievance procedure,
said claimed grievance may then be referred by
the grievant's representative to arbitration.
The arbitrator's decisions made within the
scope of the submission and authority of the
arbitrator shall be final and binding on all
parties.
Inasmuch as no issue of fact was involved, the Judge
requested the parties to submit authorities in support of their
positions. After review, the Judge indicated he would enter a
decision in the matter.
Discussion
There are no MSHA enforcement documents involved in this
case. Further, I am unable to find. any portion of the Mine Act
that vests jurisdiction in the Commission to determine the issues
presented here.
Further, it appears the Union seems to have a determination
of what constitutes the "normal rate of compensation" under the
collective bargaining agreement.
The Union's claim is over "wages, hours and other terms and
conditions of employment." Under those circumstances, the
parties must honor the arbitration provisions. Such provisions
will be enforced by the courts. Sams v. United Food & Commercial
Workers Union 835 F.2d 848 (11th Cir. 1988); Hillard Vo Dobelman,
774 Fo2d 886 (8th Ciro 1985)0
The Judge raised the issue of the Commission's jurisdiction
and Complainants state they don~t know how the issue arrived
before the Commissiono In particular, Complainants state they
filed a complaint with the MSHA Field Office in Coeur d'Alene,
Idahoo

Complainants position may be well takeno Section 48.32 outlines an appeals procedure from a decision by MSHA's District
Managero
Since the Mine Act fails to vest jurisdiction in the Commission v this case is DISMISSED.

Law Judge

1632

Distribution:
Mr. Steve Brown, Staff Representative, Uni.tea Steelworkers of
America, Post Office Box 726, Kellogg, ID 83837 (Certified Mail)
Fred M. Gibler, Esq., EVANS, KEANE, KOONTZ, BOYD, SIMKO & RIPLEY,
Post Office Box 659, Kellogg, ID 83837 (Certified Mail)

sh

1633

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

OCT 7 1991
EQUAL ACCESS TO JUSTICE ACT

BECO CONSTRUCTION CO., INC.,
Contestant

Docket No. EAJ 91-1

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

.

DECISION APPROVING SETTLEMENT
Before:

Judge Morris

This case is an application under the Equal Access Justice
Actu 5 u.s.c. § 504 (1988) as implemented by Commission Rules at
29 C.F.R. Part 2704.
This matter arises from Beco Construction Co., Inc. Docket
Nos. WEST 91-25-RM and WEST 91-26-RM.
Prior to a hearing, the parties reached an amicable settlemento

In view
the settlement between the partiesv the caption
case should be and is hereby DISMISSEDc

Law Judge

Distribution~

Merrily Munther, Esq., PENLAND & MUNTHER, Jefferson Place, Post
Office Box 199, Boise, Idaho 83701
(Certified Mail)
Rochelle Kleinberg, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third Avenue, Suite 945, Seattle, Washington
98101
{Certified Mail)

sh
1634

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

OCT 1 0 1991
CIVIL PENALTY PROCEEDING

SECRETARY OF I;ABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. CENT 90-146-M
A. C. No. 41-02976-05526-A

v.

Helotes Mine

CARROLL FRANK BLUEMEL, EMPLOYED
BY SOUTH TEXAS AGGREGATES,
INCORPORATED,
Respondent
DECISION

Appearances:

J. Philip Smith, Esq. / Arlington,
VA, for Petitioner;
Mr. Carl Strating, San Antonio, TX,
for Respondent.

Before:

Judge Fauver

This is a petition for a civil penalty under § llO(c) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq., charging Carroll Frank Bluemel, as an agent of a corporate
mine operator, with knowingly authorizing, ordering or carrying out
a violation by the mine operator. 1
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
1

Section llO(c) of the Act provides~

Whenever a corporate operator violates a mandatory heal th
or safety standard or knowingly violates or fails or
refuses to comply with any order issued under this Act or
any order incorporated in a final decision issued under
this Act, except an order incorporated in a decision
issued under subsection (a) or section 105(c), any
director, officer, or agent of such corporation who
knowingly authorized, ordered, or carried out such
violation, failure, or refusal shall be subject to the
same civil penalties, fines, and imprisonment that may be
imposed upon a person under subsections (a) and (d).

1635

and further findings in the Discussion below:
FINDINGS OF FACT

1.
South Texas Aggregates, Inc., a corporation, operates an
open pit mine, known as Helotes Mine, where it produces limestone
for use and sales substantially affecting interstate commerce.
December, 1988, Fire
2.
On December 14, 1988, Gary Tucker drove a 275 B Michigan
front loader to the south Pit to load haulage trucks. On one load,
as he started to hoist the bucket, he noticed a bright glow
reflecting in his windshield and heard a swooshing sound.
He
turned and saw flames erupting from the engine compartment.
He
opened the left door of the operator's compartment, but flames
immediately enveloped the doorway. He shut the door and tried the
right door.
There were flames on the right side, too, but he
pushed the door open and start.ed to . exit. As he was trying to get
out, the door swung· back and struck him, but he grabbed the
handrail, pushed himself out and jumped about 7 1/2 feet to the
rocky floor of the quarry. He broke both ankles, and lay near the
flaming vehicle, unable to escape farther.
Someone saw his
predicament, and helped him get away from the fire and a possible
fuel tank explosion.
3.
The fire damage was so extensive that the MSHA accident
investigators could not determine the precise cause of the fire,
"except that there was an unplanned release of hydraulic oil in the
engine compartment due to damaged and leaking hydraulic lines"
(Exhibit G-8).
.
4o
On December 20v 1988, MSHA issued Citation No~ 3278307,
charging South Texas Aggregates, Inc. u with a violation of 30
c.F.R. § 56.14100(c), 2 as follows~

Excessive hydraulic
(sic]
leaks due to
chaffing [sic] high pressure, (2500 psi} lines
in the engine compartment of the 275B Michigan
front loader and the subsequent rupture of one
of these lines caused the unit to explode in
2 Section

56.14100(c) provides:

When defects make continued operation hazardous to
persons, the ·defective items including self-propelled
mobile equipment shall be taken out of service and placed
in a designated area posted for that purpose, or a tag or
other effective method of marking the defective items
shall be used to prohibit further use until the defects
are corrected.

1636

flames on December 14th, 1988. Flames rapidly
engulfed the operator's cab due in part to
missing protective panels.
The operator
jumped 7 1/2 feed to_ escape the flames
breaking both ankles.
The hydraulic [sic]
leaks had been reported repeatedly on preshift inspection reports.
This is an
unwarrantable failure.
5.
The citation was served on Respondent, Frank Bluemel, as
mine superintendent.
Inspection on January 5. 1989
6.
MSHA Inspector James .s. Smiser inspected the mine on
January 5, 1989, and found safety defects in a Hough 560 front-end
loader, which was operating in the pit.
He issued § 104 (d} (l}
Order No. 3063887, charging a violation of 30 C.F.R. § 56.l400(c).
The order, as modified, alle~~s the following condition:
,

Defects on the Hough 560·front end loader were
not corrected prior to continued operation
which were hazardous to persons.
The
equipment was taken out of service for repairs
to be completed but put back into service
prior to completion. Defects are: Leaks in
Hydraulic system, leaks in bucket cylinderright side,
leak in steering cylinder,
hydraulic tank leaking, oil filter leaking,
fuel system leak, brake fluid storage tank
both left and right rear wheel cylinders
leaking, inspection plates missing, both left
and right hoist cylinder pressure hoses rubbed
threw
[sic]
to inside metal covering,
fuel/stop linkage disabled which required
operator to dismount loader, walk to opposite
side of machine and manually cut off engine.
7o
Shortly after the fire on December 14u 1988, Respondent
Bluemel had taken the Hough 560 out of service to have extensive
repairs madev including the brakes, back-up alarm, fuel-linkage
stopping mechanism, and hydraulic lines.

8
As of January 5, 1989, some of the repairs had been made,
but repair work was. far from complete. on that date, pit foreman
Billy Tucker told Respondent Bluemel that the "shovel" operating in
the pit had broken down, and asked for permission to use the Hough
560 loader while the shovel was being repaired. Bluemel asked
Tucker whether the brakes and back-up alarm had been repaired, and
Tucker said, "Yes."
Bluemel authorized him to use the Hough
loader. At that time, the loader was still in the repair shop, and
Bluemel knew or had reason to know that the fuel-linkage stopping
o

mechanism was not working and the machine had a number of hydraulic
leaks.
9.
Before he authorized Tucker to use the Hough 560 loader,
Bluemel did not ask the mechanic or anyone else to troubleshoot the
machine to be sure that necessary repairs had been made on the
fuel-linkage stopping mechanism and the hydraulic system.
10. Citation No. 3278307 and Order No. 3063887 were the bases
of § llO(c) charges against corporate officers in Secretary of
Labor v. Strating and Coleman. 13 FMSHRC 425,430(1991).
Judge
Melick dismissed the charges for insufficient proof.

DISCUSSION WITH FUBTHBR FINDINGS
§

The Commission has defined the term "knowingly," as used in
llO{c) of the Act, as follows:
"Knowingly", as usedin the Act, does not have
any meaning, of bad faith or evil purpose or
criminal intent. Its meaning is rather that
used in contract law, where it means knowing
or having reason to know. A person has reason
to know when he has such information as would
lead a person exercising reasonable care to
acquire knowledge of the fact in question or
to infer its existence.... We believe this
interpretation is consistent with both the
statutory language and the remedial intent of
the Coal Act.
If a person in a position to
protect employee safety and health fails to
act on the basis of information that gives him
knowledge or reason to know of the existence
of a violative condition, he has acted
knowingly and in a manner contrary to the
remedial nature of the statute.
[Kenny
Richardson v. Secretary of Labor. 3 FMSHRC s,
16 (1981), 689 F.2d 632 (6th Ciro 1982), cert.
denied, 461 Uo So 928 (1983)0]

Inspector Smiser testified that he alleged oil "leaks" in
Order Noo 3063887u rather than hazardous "accumulations," because
he observed fresh pools of oil in locations where oil would not be
expected unless there was a leak. On this basis, he testified that
the oil he observed.on the bucket cylinder, the steering cylinder,
the oil filter, and the rear wheel cylinders was due to leaks and
not to possible spillage in filling tanks. He acknowledged that
the oil he observed on the hydraulic oil tank and the petroleum
fluid he observed on the brake fluid storage tank may have been due
to spillage in filling the tanks. He observed diesel fuel dripping
from the rear of the equipment, but acknowledged that, since a
source of a fuel leak could not be found after issuance of his

1638

order, the dripping fuel may have been due to normal overflow after
filling the fuel tank.
Oil leaks presented two main hazards~ First, they indicated
a risk of leaks that could ~urn into sprays of misting oil which
could be ignited into a fire·: Secondly, they created accumulations
sufficient to propagate a fire or noxious smoke.
Substantial
accumulations of petroleum fluids, e. g., lubrication oil,
hydraulic oil, brake fluid and transmission fluid, sufficient to
propagate a fire or noxious smoke are hazardous conditions within
the meaning of§ 56~14100(c). ·
I credit the inspector's ;testimony,_ and find that there werer
a number of hazardous hydraulic leaks that required repair before
the machine could be operated under§ 56.14100(c).
The defect in the fuel-linkage stopping mechanism was itself
a safety hazard that required repair before the machine could be
operated under § 56.l:4100(c):
This device, known as a "kill
switch," is in the operator's compartment and is used to stop the
engine in an emergency. This could save the operator's life or
prevent crippling burns or injury from fire or smoke inhalation.
For example, if a hydraulic line ruptured, and ignited into fire,
unless the "kill switch" was used, the engine would keep pumping
hydraulic oil to feed the fire, and the external fan would keep
blowing across the engine, to intensify the fire into a likely
inferno threatening the operator's life, including the possibility
of a fuel tank explosion. Bluemel knew that the"kill switch" was
defective when he authorized Tucker to use the Hough loader.
I find that Respondent knowingly authorized the violation of
56.14100(c) alleged in Order No. 306~887.
The violation was due to aggravated conduct beyond ordinary
negligence because Bluemel had been put on notice of the danger of
hydraulic leaks and the importance of an operable "kill switch."
It was therefore an unwarrantable violation.
The violation
presented a "significant and substantial" risk of igniting or
propagating a hydraulic oil fire with serious injury to the
equipment operator" It was therefore an S&S violation within the
meaning of § 104(d) (1) of the Acto
Considering the civil penalty assessments previously assessed
against the corporation ($700) and the pit foreman, Billy Tucker
($400) / for their part in the ·violation alleged in Order No.
3063887, and the criteria for a civil penalty in § llO(i) of the
Act, I find that a civil penalty of $500 is appropriate for the
violation found in this case.

1639

CONCLUSIONS OF LAW
L

1.

The judge has jurisdiction in this proceeding.

2.
Respondent, Carroll Frank Bluemel, knowingly authorized
the violation of 30 C.F.R~~ § 56.14100(c) alleged in Order No.
3063887.
ORDER

Respondent, Carroll Frank Bluemel, shall pay to the Secretary
of Labor a civil penalty of $500 within 30 days of the date of this
decision.

{Jift~ --:::r-0vu,veri.

William Fauver
Administrative Law Judge

Distribution:
J. Philip Smith, Esq., Office of the Solicitor, u. s. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Mr. Carl Strating,
(Certified Mail)

8926

Wexford,

/fas

1640

San

Antonio,

Texas

78217

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

OCT 10 1991

GATLIFF COAL COMPANY, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. KENT 89-242-R
Citation No. 3178703; 8/3/89

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

Docket No. KENT 89-243-R
Citation No. 3178704; 8/3/89
:

Docket No. KENT 89-244-R
Citation No. 3178706; 8/3/89
Docket No. KENT 89-245-R
Citation No. 3178707; 8/3/89
Docket No. KENT 89-246-R
Citation No. 3178708; 8/3/89
Docket No. KENT 89-247-R
Citation No. 3178709; 8/3/89
Docket No. KENT 89-248-R
Citation No. 3178710; 8/3/89
Docket No. KENT 89-249-R
Citation No. 3178711; 8/3/89
Docket No. KENT 89-250-R
Citation No. 317B712; 8/3/89
Docket No. KENT 89-251-R
Citation No. 3178713; 8/3/89
Docket No. KENT 89-252-R
Citation No. 3178714; 8/3/89
Gatliff No. 1 Mine
Mine ID No. 15-04322

1641

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

v.

GATLIFF COAL COMPANY, INC.,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 90-100
A.C. No. 15-04322-30530
Docket No. KENT 90-215
A.C. No. 15-04322-30531
Gatliff No. 1 Mine
DECISION

Before:

Judge Melick

These cases are before me upon remand by the Commission on
September 25, 1991, following a determination that a violation of
the standard at 30 C.F.R. § 77.1701 was indeed committed by the
Gatliff Coal Company, Inc., (Gatliff). In particular, the matter
has been remanded for resolution of "any remaining issues,
including whether the violation resulted from the operator's
unwarrantable failure, whether it was significant and
substantial, and for the assessment of an appropriate civil
penalty."
Order No. 3178705, issued pursuant to section 104(d)(l) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq., the "Act," charges as follows: I
1 ; Section 104(d)(l) of the Act provides as follows:
"If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standardr and
if he also finds thatu while the conditions created by such
violation do not cause imminent danger; such violation is of such
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or pealth hazard,
and if he finds such violation to be caused by an unwarrantable
rai
of such operator to comply with such mandatory health or
safety standards 9 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
so 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."

1642

Emergency communications were not available at the
Colonel Hollow Job Number 75. Communications with the
services that provide emergency medical assistance and
transportation were discontinued when the company
vehicle with the compagy radio left the mine property.
On 8/1/89, following a serious accident which occurred
at approximately 3:20 a.m., employees were required to
travel approximately 2-1/2 miles to a public telephone
to summons an ambulance.
The cited standard, 30 C.F.R.
follows:

§

77.1701, provides as

(a) Each operator of a surface coal mine shall
establish and maintain a communication system from the
mine to the nearest point of medical assistance for use
in an emergency.
(b) The emergency communication system required to be
maintained under'paragraph (a) of this section may be
established by telephone or radio transmission or by
any other means of prompt communication to any facility
(for example, the local sheriff, the State highway
patrol, or local hospital) which has available the
means of communication with the person or persons
providing emergency medical assistance or
transportation in accordance with the provisions of
paragraph (a) of this section.
The facts in this case were summarized by the Commission in
its decision as follows:
The facts of this case are largely undisputed.
Gatliff Coal Companyu Inc. ("Gatliff') owns and
operates a surface strip coal mine located in Whitley
County, Kentucky known as Gatliff No. 1, Job 75. At
about 3:20 a.m. on August 1, 1989 a truck driven by
Gatliff employee Boyd Fuson went off an elevated
roadway on the mine property and tumbled down a
120 foot embankment. In response to the accident, two
Gatliff employees, Donald Hopkins and Richard Gibbs,
drove from the mine property to the nearest telephone,
which was about two miles away, in order to summon
help. There was no telephone at Job 75. Fuson died as
a consequence of the accident.
In.the investigation that followed, MSHA inspector
James Payne issued a 104(d)(l) order charging a
violation of 30 C.F.R. § 77.1701, because there was no
company radio at Job 75 at the time of the accident.
According to James Meadors, Gatliff's day shift foreman·
at the time of the accident, each mine site typically

1643

has three company radios. The company radios are
two-way 40 watt radios with sufficient range to reach
the Gatliff mine off ice and are located in the
foreman's truck, the mechanic's truck and the lube
truck. On the night o:t;. the accident, however, there
was no company radio on site at Job 75. Meadors
testified that he had taken the foreman's truck off the
Job 75 site, that the lube truck was at another Gatliff
mine site "roughly three miles away, maybe a little
more," and that the mechanic's truck had been taken
home. At the time of the accident, there was, however,
a citizen band radio ("CB radio" or "CB") belonging to
the day shift operator of the bulldozer being operated
by Mark Hopkins.
John Blankenship, Gatliff 's safety director,
testified about the operator's emergency notification
procedures. He acknowlegged that under normal
circumstances those procedures consisted of
communication via one of the two-way radios back to the
mine office, where there was a telephone.
Blankenship's signed statement of Gatliff's company
policy regarding emergency communications was read into
the record:
. . . Gatliff Coal Company, Inc. has a
standard operating procedures (sic) of the
company's radio communication to be provided
on the job in case of emergency. This
provides for the job to contact base and base
then calls for assistancep base being the
guard shack. And this has always been our
standard operating procedure.
Thus, Gatliff conceded that its standard emergency
communication procedure involved using 40 watt two-way
radios and that there were no such two-way radios at
Job 75 on the night of the accident. However, before
the administrative law judge Gatliff took the position
that, although no 40 watt two-way radio was present at
Job 75 at the time of the accident, CB radios were
presentp which would have enabled the miners to link up
with a different, but nearby, Gatliff mine site (Job
74) that did have such a two-way radio on the lube
truck. Foreman Meadors testified that miners routinely
communicated by CB radios between the two sites.
Safety Director Blankenship stated that the miners
at Job 75 could have reached the lube truck at Job 74
by using the CB, but he acknowledged that the miners
were never told to use the CBs. In response to

1644

que.stions from the court, Blankenship testified as
follows:
Q.

Well, how do you get in touch with the
lube truck i~you're 3 miles away?

A.

With the CB.

Q.

Do you understand why these people did
not use it?

A.

No, I don't.

Q.

Were they told to use the CBs?

A.

They were never per se told to use the
CBs except, you know, they would have
radio communication there and someone
would get on the company radio and call.
Now, how they got ahold of one another
to use the company radio to call the
guard that was pretty much left to their
own discretion.

Blankenship testified that, since the accident,
miners have been told to communicate for help the
"fastest possible way" and that they have been told to
use CBs. Prior to the accident, however, the miners
had not been specifically told to use a CB radio or to
walk to the mechanic's truck. Blankenship assumed that
in an emergency the miners would find the quickest way
to get helpo
Mark Hopkins testified that 6 although there was a
CB radio on the bulldozer he was operating the night of
the accident, it never entered his mine to use it to
summon helpo ALJ decision at 13 FMSHRC 373. The CBs
were used by the miners to give directionsv to keep
each other companyv to communicate with other job
sites, and to use if there was something wrong. When
asked why he did not use the CB to reach another
Gatliff job site the night of the accident, Hopkins
stated he was "just scared." He testified further
stated [sic} that he was trained, in the event of an
emergenc~to use either the foreman's truck or the
lube truck to make a call for help.
Inspector Payne testified that a CB radio could be
used for emergency communication under the standard if
there were someone monitoring it on the other end. He
noted that the CBs were owned by the employees and that

1645

during his investigation no one told him that there was
an alternate emergency communication system.
In his decision the judge noted the undisputed
testimony of Inspector,J?ayne that the only radio at Job
75 at the time of the accident was the CB in Hopkins'
bulldozer and that this radio had insufficient range to
reach either the mine office or medical or police
assistance. 13 FMSHRC at 373. The judge further found
that the CB at Job 75 could have reached the lube truck
at Job 74 and that the lube truck had a radio
sufficiently powerful to reach the mine office. On
this basis, the judge concluded that ~he Secretary had
failed to prove a violation because the CB radio on the
bulldozer at Job 75 was capable of reaching the lube
truck radio, which in turn could communicate with the
mine office, where a telephone was located. 13 FMSHRC
at 374.
In evaluating whe'ther a violation is "significant and
substantial" the commission in Mathies Coal Co., 6 FMSHRC 1
(1984), explained as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard
-- that is, a measure of danger to safety-contributed
to by the violation; (3) a reasonable likelihood that
the hazard contributed to will result in an injury; and
{4) a reasonable likelihood that the injury in question
will be of a reasonably serious natureo
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129r the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula 11 requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injuryo" U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(l), it
ls 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

1646

surrounding the violation. Secretary of Labor v. Texasgulf,
Inc., 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal Company,
9 FMSHRC 1007 (1987).
The third element of tqe formula requires that the Secretary
establish 11 a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury" and that the
likelihood of injury must be evaluated in terms of continued
normal mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573
(1984); Monterey Coal Co., 7 FMSHRC 996 (1985). The time frame
for determining if a reasonable likelihood exists includes the
time that a violative condition existed or would have existed if
normal mining operations continued. Rushton Mining Co.,
11 FMSHRC 1432 (1989). In this case the hazard which the instant
standard is designed to protect against is the aggravation of a
pre-existing injury or of death due to the lack of prompt medical
attention. While this case does not therefore fit neatly within
the cited definitions analogies can appropriately be made.
In any event, I conclude, 'that the violation herein was
neither "significant and substantial" nor serious. Ordinarily,
according to the undisputed evidence, Gatliff maintains as its
standard operating procedures, three 40-watt two way radios at
each mine site sufficient to call the mine office where there is
a telephone. It is further undisputed that these communication
systems would meet the cited regulatory requirements. On the
night at issue however, for reasons not fully explained, none of
the three vehicles having such radios was at this particular
location at the mine. It may reasonably be inferred, therefore,
that the absence of such a radio was an aberrant situation and
would not ordinarily have existed under normal mining operations.
It is also undisputed that alternative means of
communication was
lable at the time at issue from the mine to
the nearest point
medical assistance in the event of an
emergency" This system was provided by CB radio and two-way
radio on the lube truck to the mine office. Under all the
circumstances, I do not find that the violation was·"significant
and substantial" or
high gravity"
In addition, in light of the evidence that ordinarily three
two-way radios are present at the mine and that the absence of a
radio on the night at
sue was anything other than the result of
inattention or inadvertencev and that the miners were not left
without a means of emergency radio communication, I cannot find
that the violation was the result of "unwarrantable failure," or
more than simple negligence. Emery Mining Corporation, 9 FMSHRC
1997 (1987) and Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(1987). The order must accordingly be modified to a citation

1647

under section 104(a) of the Act. In addition, considering all of
the criteria under section llO(i) of the Act, I find that a civil
penalty of $50 is appropriate.
ORDER

Order No. 3178705 is modified to a citation under section
104(a) of the Act. Gatliff Coal Com ny, Inc., is ordered to pay
a civil penalty of $50 within 30 days of the date of this
decision.

Distribution:
Robert I. Cusick, Esq., David B. Wicker, Esq., Wyatt, Tarrant &
Combs, Citizens Plaza, Louisville, KY 40202 (Certified Mail)
Jerald s. Feingold, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 400, Arlington,
VA 22203 (Certified Mail)
/fb

1648

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

OCT- 111991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
JVAL INCORPORATED,
Respondent

.

CIVIL PENALTY PROCEEDING

:

Docket No. WEST 90-201-M
A.C. No. 04-05077-05501

.
..:

Docket No. WEST 90-261-M
A.C. No. 04-05077-05502
Stewart Mine

DECISION
Appearances:

Before:

Susan Gillett, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
Califoqlia,
,
for Petitioner;
Charles H. Schultz, Superintendent, Pro Se
for Respondent.

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration ("MSHA 11 ) charges Respondent JVAL, Incorporated ("JVAL") with violating safety regulation promulgated under
the Federal Mine Safety and Health Act, 30 u.s.c. § 801 et~
<th e "Act 11 ) o
A hearing on the merits was held in Sacramentov Californiav
on June 18 19910 The Secretary of Labor filed a post-trial
iefo
STIPULATION
At the commencement of the hearingv the parties stipulated
as followsg
lo
The Stewart Mine located at 10323 Adam Avenue, Grass
Valley 0 California, is a mine within the meaning and interpretation of the Federal Mine Safety and Health Review Commission at
30 UoSoCo Section 802(h)o

2. The Mine is subject to the coverage of the act within
the meaning and interpretation of the Act at 30 u.s.c. 802(b).
3. The size of the respondent operator is approximately 488
man-hours per year.

1649

4.
There has not been previous history of a violation at
the Stewart Mine.
Citation No. 3464304
In this citationi the Secretary charges JVAL with violating
30 C.F.R. § 57.3360.
The citation reads as follows:
There were no timbered sets, nor sets of any
kind at the portal "collar" of the underground
drift to keep loose or thawing ground from releasing cracked ground or the cemented placer
rock, or anything to keep the back from falling
in when it (the face of the drift), is being
blasted. The face of the drift being blasted &
worked was less than''l50 feet from the outside
surface ground of the portal of the mine.
FRANK B. SEALE, an MSHA inspector experienced in mining,
conducted a courtesy inspection (CAV) of the Stewart Mine on
February 7-8, 1990. Mr. Schultz, Superintendent, and others were
present. The inspector gave Mr. Schultz a copy of the CAV nonpenalty violations.
(Tr. 12).
The 8-foot by 10-foot portal with a Roman arch lacked
structural support. The inspector believed support was necessary
as the ground was thawing. The inspector also saw a small rock
tumble out of the side of the hill and almost strike miner Lee.

l

The cited regulation reads as follows:
§

57.3360 Ground support use.

Ground support shall be used where ground conditions u or mining experience in similar ground
conditions in the mine 1 indicate that it is necessaryo When ground support is necessary, the
support system shall be designed, installed, and
maintained to control the ground in places where
persons work or travel in performing their assigned tasks
Damaged, loosened, or dislodged
timber use for ground support which creates a
hazard to persons shall be repaired or replaced
prior to any work or travel in the affected area.
G

1650

The entry went 135 feet into the mountain without structural
support. There could be a total and complete collapse. (Tr. 15).
The condition was pointed out to Mr. Schultz. On March 6-7,
1990, at a regular MSHA inspection, the inspector did not see any
change in the condition of the portal but they had dug an additional 12 or 14 feet into the shaft. Usually 7 or 8 sets would
have been installed for 50 feet or so. (Tr. 16-18). Miner Jed
Lee was present and they were blasting at the bottom of the drift
CTr. 17) at the time the moist earth was drying out. CTr. 19).
If a collapse of the ground occurred it was reasonably likely
that a fatality would occur.
During the penalty inspection in March, Mr. Seale was accompanied by Messrs. Schultz, Lee and Morey. {Tr. 21). The inspector again pointed out the need for timbered sets. In the inspector's opinion, Mr. Schultz is very conscientious and had been an
MSHA inspector. {Tr. 54). The company had two miners at the
site. (Tr. 38). The inspec~or agrees that Mr. Schultz had ordered steel sets before the penalty inspection but they had not
arrived. (Tr. 35). The tunnel, to a depth of 135 to 150 feet,
had been there since the 1800s. JVAL had advanced it 12 feet.
When the mine was shut down the total advance was 36 feet.
(Tr.
37)o
CHARLES H. SCHULTZ, a consulting engineer and experienced in
mining and tunneling, testified for JVAL.
C Tr. 45).
When the inspector arrived in February, the mining had progressed about 50 feet underground.
CTr. 46). All the CAV notices were correct and Mr. Schultz intended to comply. (Tr.
<\16-48)

0

After the CAV inspectionv Mro Schultz attempted to secure
the necessary Douglas fir from three lumber companies.
(Tr. 48)o
He believes timbered sets were necessary. (Tr. 57). All the
companies indicated they would be cutting Douglas fir in a week
or twoo But in view of the delay in securing the timberu he ordered two steel setso On March 6v employee Dwayne Davis bought
some timber and steel setso From March 6u the miners worked on
the portal until completion. (Tr. 49; Exe R-1, R-2v R-3u R-4)o
Discussion
The evidence is uncontroverted that ground support was needed due to the thawing conditions in the area. No such ground
support was provided.

16.51

The Secretary further asserts the lack of ground support in
the portal and tunnel was a significant and substantial violation.
I agree. It has been noted that mine roofs are inherently dangerous and even a good roof can fall without warning. Consolidated Coal Co., 6 FMSHRC 3A, 37-38~ Halfway, Inc. 6 FMSHRC 8, 13.
The above cited cases involved underground coal mines and the
requirements of 30 C.F.R. 75.200 but the reasoning is equally
applicable here.
The testimony is clear that the roof could fall at any time.
Further, if it fell a fatality could occur.
Citation No. 3464304 should be affirmed and a civil penalty
should be assessed.
Citation No. 3464305
In this citation, the Secretary charges Respondent with
violating 30 C.F.R. § _57.1105'8. 2 ··
The citation reads as follows:
A mine, check-in check-out system had not been
provided, so a person checking the shift attendance could tell whether a given miner was underground or out on the surface.
At the time of the CAV visit, Inspector Seale concluded
there was no check-in, check-out tags, called "brass tags". Such
a system is used by potential rescuers of any individual who may
be in the mine. (Tr. 22-24). Such systems are usually located
at the portal of the mineo The inspector told Mro Schultz that
he needed to develop such a system,

2

The cited regulation reads as followsg
§

57.11058

Check-in~

check-out system.

Each operator of an underground mine shall
establish a check-in and check-out system
which shall provide an accurate record of persons in the mine. These records shall be kept
on the surface in a place chosen to minimize the
danger of destruction by fire or other hazards.
Every person underground shall carry a positive
means of being identified.

1652

On his penalty inspection the following month, the inspector
did not see any kind of a check-in, check-out system. Messrs.
Schultz, P.D. Morey, President, and Joel Lee were there. (Tr.
24). When the lack of brass tags was pointed out to Mr. Schultz,
he said he was working on it. Mr. Schultz didn't tell the inspector where the system could be found. The failure to have
such a system presents a danger to the men underground. (Tr.
2 5) •

At the regular MSHA inspection, the inspector agrees he
didn't know if he discussed the check-in, check-out system with
Mr. Schultz.
(Tr. 38-43). The citations issued in March came by
mail a week later. (Tr. 40). When he sees a violation, it is
the inspector's normal practice to point it out to the operator.
(Tr. 43). Witness Schultz indicated the check-in, check-out
board was known by the two miners to be located in the pickup
truck (Tr. 47) but he and the inspector did not discuss the
check-in, check-out system during the March inspection. (Tr. 47).
Mr. Schultz believed he was i·n compliance and the inspector
didn't know the check-out board was in the pickup and he automatically wrote the citations. (Tr. 48). According to Mr. Schultz
it was very convenient to keep the check-out system in the truck
because there are no buildings in the area. After the portal was
rebuilt~ the check-in, check-out system was hung at the portal.
(Tr. 66).
Discussion
A credibility issue arises concerning this situation. I
credit Mr. Schultz's testimony that the check-in, check-out system was available at the time of the penalty inspection in March.
The inspector admits he didn't discuss the system with
Mrc Schultz at the time of the penalty inspection. Mr. Schultzv
who was described as a conscientious superintendentu should have
been aware of the system and its location on the premises.
Citation No. 3464305 should be vacated.

1653

Citation No. 3464306
In this citation, the Secretary charges JVAL with violating
30 C.F.R. § 57.15001. 3
The citation reads as follows:
Neither a stretcher nor blankets or first-aid
supplies of any kind were available at the mine
site for use in the event of a mine emergency.
At the CAV inspection, the inspector did not see a stretcher
or any first-aid material. (Tr. 26). Such materials are usually
kept in a small nearby off ice or an old truck or in something
immobile. (Tr. 26). The materials shouldn't be in a location
where they could be removed at the end of the shift. They had
one or two trucks present during the CAV. There were no small
buildings. A trailer was up J::,h~ road about a mile. (Tr. 27).
There were no first-aid materials around the mine. (Tr. 28).
In March, at the penalty inspection, the inspector did not
see any first-aid supplies in the truck. Messrs. Schultz, Morey
and Lee were also present. (Tr. 28). The company representatives stated the materials would be provided. During the termination of the citation on March 7th, they stated they were in a
nearby trailer. The trailer must have been in the watchman's
house up the road. The inspector would not have written the citation if the material had been there on March 6. (Tr. 29).
When he returned for the March inspection, he remembered discussing the first-aid materials.
CTr 40).
Witness Schultz indicated the inspector didn°t leave the
tation with JVALo Before they were received he had produced a
~tretcher and blankets.
The first-aid kit itself was always in

~

The cited regulation reads as followsg
§

57015001

First aid materials"

Adequate first-aid materials, including
stretchers and blankets shall be provided at
places convenient to all working areas. Water
or neutralizing agents shall be available where
corrosive chemicals or other harmful substances
are stored, handled, or used.

1654

the pickup truck.
(Tr. 46). At the end of the shift, the truck
goes "home" but it is returned the next day.
(Tr. 4 7). Witness
Schultz testified that during the March inspection he and the
inspector did not discuss the first-aid supplies. Miner Davis
brought the stretcher and blanket in the pickup truck.
(Tr. 47).
Mr. Schultz believes he was in compliance because the inspector
didn't know a stretcher and blanket were in the pickup and he
automatically wrote the citation.
(Tr. 48). Mr. Schultz did not
tell the inspector that the first-aid materials were in the truck.
(Tr. 65).
Discussion
A credibility issue arises in connection with this citationo
I credit Inspector Beale's testimony to the effect that he would
not have written this citation if the first-aid supplies had been
present. Mr. Schultz agrees he did not advise the inspector that
the materials were in the tr:µck.
In view of the previous CAV
notice he had received, one would anticipate Mr. Schultz would
discuss this matter with the inspector.
Citation No. 3464306 should be affirmed and a penalty
assessed.
CIVIL PENALTIES
Section llO(i} of the Act, 30 U.S.C. 820(i) mandates the
criteria for assessing civil penalties.
JVAL does not have an adverse prior history (Stipulation).
The proposed penalties appear appropriate since the operatorus
size s small 9 only 488 rnanhours per year (Stipulation)" The
lad::. of ground support at the portal was open and obvious"
Furtherv the lack of first-aid supplies should have been known to
JVAL personnel. These factors establish the company 1 s negligence
was moderate"
In the absence
any
to the contraryv I find that the
payment of the proposed penalties will not cause JVAL to discontinue its business. Buffalo Mining Co.v 2 IBMA 226 (1973);
Associated Drillingu Inc. 1 3 IBMA 164 (1974)0 The gravity for
the lack of ground support at the portal is high but the gravity
due to lack of first-aid supplies is moderateo JVAL demonstrated
good
ith in abating the violative condition. On balance, I
deem that the penalties affirmed in the order of this decision
are appropriate.

1655

For the foregoing reasons, I enter the following:
ORDER

In WEST 90-261:
1. Citation No. 3464304 is AFFIRMED and a penalty of
$50 is ASSESSED.
2.

Citation No. 3464305 and all penalties therefor are

VACATED.

In WEST 90-201:
3. Citation No. 3464306 is AFFIRMED and a penalty of
$40 is ASSESSED.

Law Judge

Distributiong

Susan Gillettv Esq.u Office of the Solicitor, U.S. Department of
Laboru 71 Stevenson Streetu Suite lllOu San Francisco, CA 94105
Certifi
Mail)
Mro Charles H. Schultzu Superintendent 0 JVAL, INC.v 10323 Adam
Avenueu Grass Valleyu CA 95945 (Certified Mail)

sh

1656

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

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

OCli 61991
AIR PRODUCTS AND CHEMICALS,
INC.,
Contestant

v.

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

CONTEST PROCEEDING
Docket No. PENN 91-1488-R
Citation No. 3486528; 9/5/91
Cambria Co-Generation Facility
Mine ID 36-99999

DECISION
Appearances:

R. Henry Moore, Esq., Buchanan Ingersoll
Professional Corporation, Pittsburgh,
Pennsylvania, for the Contestant;
Robert Cohen, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the
Respondent.

Before:

Judge Melick

These expedited contest proceedings were filed by Air
Products and Chemicalsu Inc.p (Air Products); pursuant to section
105(d} of the Federal Mine Safety and Health Act of 1977u
30 UoS.Co § 801 et seq.u the "Mine Act," to challenge a citation
issued by the Secretary of Labor for Air Products' refusal to
permit an inspector of the Federal Mine Safety and Health
Administration (MSHA), to enter its Cambria Cogene~ation Facility
Cambria C£Gen) in alleged violation of section 103(a) of the
Mine Acto I The preliminary issues before me are whether those
areas of the Cambria CoGen facility at issue in this case are a
11
coal mine 11 within the meaning of the Mine Act and therefore
subject to MSHA jurisdiction, and if so, whether MSHA has
exercised its authority in a manner sufficient to displace
enforcement authority by the Occupational Safety and Health
1 Section 103(a) of the Mine Act provides in part that
"[f]or the purpose of making any inspection or investigation
under this Act, the Secretary.[of Labor] or the secretary of
Health, Education, and Welfare, with respect to fulfilling his
res~onsibilities under this Act, or any authorized representative
of the Secretary or the Secretary of Health, Education, and
Welfare, shall have a right of entry to, upon, or through any
coal or other mine."
·

1657

Administration (OSHA) under section 4(b)(l) of the Occu~ational
Safety and Health Act, 29 u.s.c. § 653{b)(l) (OSHAct). / For
the reasons that follow, I find that while the cited areas of the
Cambria CoGen facility herein come_ within Mine Act jurisdiction,
MSHA has failed to exercis~its authority in a manner sufficient
to displace OSHA enforcement authority and that, accordingly, the
citation at bar must be vacated.
Cambria CoGen is an electrical generating facility utilizing
two combustion boilers with bituminous coal refuse as its primary
energy source to power a steam turbine-generator. Its primary
business is to produce and sell electricity to the Pennsylvania
Electric Company but it also produces steam for a local nursing
home.
The fuel is obtained from bituminous coal refuse piles
located at a mine owned by RNS Services, Inc. (RNS), and supplied
by RNS. The coal refuse is delivered by truck to the Cambria
CoGen facility and dumped into a, hopper at the refuse receiving
building. The product then passes through a grizzly which
screens out large objects, including rock, slate, timbers, roof
bolts, and large pieces of coal. The product is then transported
to a refuse storage building and then conveyed as needed to the
Bradford breaker building. It is there fed onto a rotating
Bradford drum breaker which further screens and sizes the
material for easier handling and to prevent damage to other
equipment in the facility.
The remaining minus-6 inch material then proceeds onto the
C-1 belt to a refuse storage dome. A stacker distributes the
piles and a reclaim machine places coal on another conveyor as
neededo The C-2 belt then transports coal to the crusher
building where screens separate minus-2 inch material. That
material is then further crushed to one-quarter inch to zero-inch
size with a roll crusher. This product is then conveyed to the
boiler building storage facility, where it is stored until
conveyed to the boilers by way of the boiler plant feed belt.
The Secretary acknowledges that MSHA jurisdiction would not
extend beyond the point where the coal product is dumped onto the
plant feed belto
In addition to refuse coal, run-of-mine coal is used in the
boilers to maintain a proper mix of combustibility. This coal is
delivered by truck and transported by belt to the run-of-mine
coal storage tepee. That material then proceeds to the crusher
2 ; Section 4(b)(l) of the OSHAct provides in part that
"[n]othing in this Act shall·apply to working conditions of
employees with respect to which other Federal agencies . . .
exercise statutory authority to prescribe or enforce standards or
regulations affecting occupational safety or health. 11

1658

building where it is screened down to one-quarter inch by
zero-inch size. The material is then fed to the boiler building
but stored separate and apart from the refuse coal for later
mixing as needed for the boilers. -~he general areas over which
MSHA claims inspection jurisf;liction and authority are depicted in
Government Exhibit No. 2 attached hereto as Appendix Af in the
lower portion of the schematic marked with the letter "M".
The evidence is in essential respects not disputed. On
August 2, 1989, shortly after construction of the facility began,
officials of Cambria CoGen met with MSHA subdistrict manager
Timothy Thompson to discuss the plant's coal handling systems for
determination of Mine Act authority. It was represented at these
discussions that RNS would perform onsite processing of the coal
refuse before delivering it to the Cambria CoGen facility and
that upon arrival at the facility, the coal would only be
customized by crushing and sizing to meet the one-quarter-inch
size specification. Based on this information, Thompson
concluded, and.advised the Cogen representatives, that the
operation would not come within MSHA inspection authority.
According to Thompson, MSHA later learned, upon examination
of an RNS ground control plan, that RNS would in fact not be
performing any onsite processing and that Cambria CoGen would be
purchasing unprocessed coal refuse. That coal would then require
additional processing at the Cambria CoGen facility and the
addition of a Bradford breaker. Thompson thereupon changed his
opinion and advised Cambria CoGen in an October 31, 1990, meeting
that under these changed circumstances, MSHA would assume
inspection authority.
Thompson testif ieq that he was aware of the OSHA-MSHA
rnteragency Agreement ~; but concluded that it did not need to
be invoked because he felt there was no interagency conflict. In
this regard, just before the October Jl, 1990, meeting with
Cambria CoGen, he called Terry Lane, an OSHA regional
administratorv and explained the basis for his belief regarding
MSHA jurisdiction at the coal preparation and cleaning facility.
According to Thompson, Lane stated that he would not attend the
meeting and in fact no one from OSHA showed up at that meeting.
Thompson acknowledges that he has had no further contact with any
OSHA official regarding this matter. He further indicated that
Lane never stated whether he agreed or disagreed with his
position regarding MSHA's assertion of inspection authority at
the facilityc
According to the undisputed testimony of Cambria CoGen plant
manager Mark Reed, the Cambria CoGen plant was built with OSHA
specifications in mind and the training of employees was
3;

44 Fed. Reg. 22,827 (1979) and 48 Fed. Reg. 7521 (1983).

1659

performed with OSHA training regulations in mind. In addition,
according to the undisputed testimony of James Stango, project
manager for the Cambria CoGen facility, OSHA conducted a 3 day
inspection in August, 1990, with three to five-person-teams of
inspectors and issued citations in areas over which MSHA now
claims inspection authority, including the Bradford breaker
building, the tepee building, and the BMR building.
Plant manager Reed testified that he expects OSHA will
return for further inspections of the entire Cambria CoGen
facility. Reed and Stango both noted a number of potential
conflicts between MSHA and OSHA including training requirements,
guardrail and berm requirements and fire extinguisher examination
requirements. They noted that additional conflicts were also
likely since some of their subcontractors perform maintenance
work in both the areas over which MSHA now maintains it has
inspection authority and in areas of the plant MSHA has not yet
claimed such authority.
It was also noted that at.. least one conveyor belt performs
two functions -- to remove ash from the boilers and to carry
reject coal refuse material from the crushers. According to
supervisory MSHA coal mine inspector James Biesinger, when the
conveyors bring ash from the boiler plant, they would not be
under MSHA inspection authority. However, when the same conveyor
carries reject material from the coal processing presumably it
would be under MSHA inspection authority. It is further noted
that even as of the date of hearing, MSHA was not certain as to
the full extent of the processes or areas over which it intends
to assume inspection authority. The apparent arbitrary
delineation of particular parts of roadways, over which MSHA now
claims inspection authority (See Government Exhibit No. 2,
Appendix A)u also highlights the uncertain and ambiguous
boundaries between the claimed MSHA inspection areas and those
presumably left to OSHAo
Section 3(h) of the Mine Act provides in part .as follows:
(1) 11 coal or other mine" means (A) an area of land
from which minerals are extracted in nonliquid form orv
if in liquid form, are extracted with workers
undergroundv (B) private ways and roads appurtenant to
such area, and (C) lands, excavations, underground
passagewaysv shafts, slopes, tunnels and workings,
structures, facilities, equipment, machines, tools, or
other property including impoundments, retention dams,
and tailings ponds, on the surface or underground, used
in, or to be used in, or resulting from, the work of
extracting such minerals.from their natural deposits in
nonliquid form, or if in liquid form, with workers
underground, or used in, or to be used in, the milling
of such minerals, or·the work of preparing coal or

1660

other minerals, and includes custom coal preparation
facilities • • • •
(2) For purposes of subchapte~s [titles] II, III, and
IV of this chapter [Actj, "coal mine" means an area of
land and all structures, facilities, machinery, tools,
equipment, shafts, slopes, tunnels, excavations, and
other property, real or personal, placed upon, under,
or above the surface of such land by any person, used
in, or to be used in, or resulting from, the work of
extracting in such area bituminous coal, lignite, or
anthracite from its natural deposits in the earth by
any means or method, and t~e work of preparing the coal
so extracted, and includes custom coal preparation
facilities.
Section 3(h) of the Mine Act thus defines a "coal or other
mine" and "coal mine" to include the "work of preparing the
coal." Section 3(i) of the Mine Act defines the "work of
preparing the coal" as "the breaking, crushing, sizing, cleaning,
washing, drying, mixing, storing, and loading of bituminous coal,
lignite, or anthracite, and such other work of preparing such
coal as is usually done by the operator of the coal mine."
Within this framework, it is clear that in at least a
portion of the Cambria CoGen facility cited by MSHA in this case,
coal refuse is broken, crushed, sized, and/or cleaned in
preparation for consumption in the generating facility. These
activities are all within the scope of "work of preparing coal"
within the meaning of section 3(i) of the Mine Act. It is also
clear that the area at issue includes "structures," "equipment,"
and "machinery" that are "used in or to be used in" the "work of
preparing the coaL 11 It is therefore clear that the areas cited
in this case were indeed subject to Mine Act jurisdiction. In
regard it is also noted that Air Products acknowledges that
the nature of the facility herein is essentially
indistinguishable from the nature of the facility f_ound by the
Commission in Westwood Energy Properties, 11 FMSHRC 2408 (1989),
to be within Mine Act jurisdiction.
The problem in this case arises, however, from the failure
the Secretary to have clearly designated whether OSHA or MSHA
should exercise regulatory authority over the working conditions
herein. In Westwood Energy Properties the Commission discussed
the issue as follows~
As in Pennsylvania Electric, [11 FMSHRC 1875
(1989)] a brief overview of the statutory interplay
between the Mine Act and.the OSHAct is necessary to a
proper analysis of the issue. The OSHAct is the most
broadly applicable statute regulating the safety and
health aspects of the working conditions of American

1661

workers. The OSHAct, like the Mine Act, is enforced by
the Secretary of Labor. Although broadly applicable,
section 4(b)(l) of the OSHAct provides:
Nothing in this Act shall apply to
working conditions of employees with respect
to which other Federal agencies . . .
exercise statutory authority to prescribe or
enforce standards or regulations affecting
occupational safety or health.
29 u.s.c. § 653(b)(l). Therefore, OSHA standards
pertaining to the working conditions at the culm bank
would be applicable unless another federal agency, with
a proper grant of jurisdiction over such working
conditions, exercises its authority in a manner
displacing OSHA coverage. See, ~.g., Southern Pacific
Transportation Co. v. Usery, 539 F.2d 386, 389
(5th Cir. 1976), cert. denied, 434 U.S. 874, 98 s.ct.
221, 54 L.Ed.2d 154(1977); Southern RV. Co v. OSHRC,
539 F.2d 335, 336 (4th Cir. 1976), cert. denied,
429 U.S. 999, 97 s.ct. 525, 50 L.Ed.2d 609 (1976).
It is undisputed in this case , however, that both OSHA and
MSHA have asserted inspection authority at the cited facility.
Indeed OSHA has cited violations of its regulations in the same
areas over which MSHA also claims inspection authority, and there
is no reason to believe OSHA will not return for further
inspections in these areas. Moreover, neither the MSHA
representatives nor the Secretary's counsel at hearing could
provide assurances that OSHA would not continue its inspections
in these areaso
The record also shows that there has been but one
communication between MSHA and OSHA officials regarding the
Cambria CoGen facility, and that conversation by telephone as
reported at hearing was ambiguous and lacking in detail.
Accordinglyv there is no evidence that a clear delineation of
OSHA/MSHA inspection authority has been made at the facility and
:H: is likely under the circumstances that both OSHA and MSHA will
continue to perform duplicative inspections over the same areas
now claimed in this case by M$HA. Significantly, MSHA
subdistrict manager Thompson has expressed the belief that there
is no need in this case to utilize the OSHA-MSHA Interagency
Agreement" This Agreement was promulgated in 1979 by the
agencies to prescribe the appropriate interagency procedure for
resolving general jurisdictional questions between the two
agencies and provides in part as follows:
When any question of jurisdiction between MSHA and OSHA
arises, the appropriate MSHA District Manager and OSHA
Regional Administrator or OSHA State Designee in those

1662

states with approved plans shall attempt to resolve it
at the local level in accordance with this Memorandum
and existing law and policy. Jurisdictional questions
that can not be decided at th~ local level shall be
promptly transmitted to._ the respective National Offices
which will attempt to resolve the matter. If
unresolved, the matter shall be referred to the
Secretary of Labor for decision.
44 Fed. Reg. 22827, 22828 (1979).
In sum, there is no evidence in this record that the MSHA
inspection of the Air Products' facility "reflects a reasoned
resolution of the jurisdictional question by the Secretary and
her agencies" but rather the evidence suggests that the
inspection "simply resulted from an ad hoc unilateral assertion
of jurisdiction by MSHA." Westwood Energy, 11 FMSHRC at 2417.
See also Pennsylvania Electric Company, 12 FMSHRC 1562 (1990),
and 11 FMSHRC 1875 (1989). Under the circumstances, Citation
No. 3486528 must be vacated. ,
ORDER

Citation No. 3486528 is

Judge
Distributiong
Ro Henry Moore, Esqou Buchanan Ingersoll Professional

Corporation, 58th Floor, USX Tower, 600 Grant Street, Pittsburgh,
PA 15219 (Certified Mail)
Robert Cohen, Esq"v Office of the Solicitor, UoSo Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington 1 VA 22203
(Certified Mail)
/fb

1663

APPENDIX A

~

'i~!I

01

:I>\

1664

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

OCT 1 6 1991
DISCRIMINATION PROCEEDING

WILLIE WILLIAMS, JR.,
Complainant

v.

Docket No. SE 91-95-D
BARB CD 88-32

JIM WALTER RESOURCES, INC.,
Respondent

ORDER OF DISMISSAL
Before:

Judge Koutras
Statement of the Case

This proceeding concerns a complaint of discrimination filed
by the complainant (Willie Williams, Jr.), against the respondent
(JWR) pursuant to section 105(c) of the Federal Mine Safety and
Health Act of 1977. By letter dated January 25, 1991, and
received by the Commission on January 29, 1991, Mr. Williams
stated as follows:
I recently received a determination letter from the
Mine Safety and Health Administration (MSHA) concerning
a discrimination complaint that I filed. MSHA has
determined that no violation occurred and reference is
made to the time delay in this caseo At the time I was
contacted by the MSHA Special Investigator, I was
hospitalized with a stress related condition which was
caused by my employment. I was never interviewed by
the special investigator and to my knowledge my
complaint was never investigated. To the best of my
recollection, my complaint was filed in early 1988. I
do not recall receiving a reply from MSHA in 19880
I had previously filed a number of complaints with MSHA
involving my former employer Jim Walter Resources,
Incorporatedo I was discharged from employment
numerous times because of my reporting unsafe
conditions at the mine.
I was injured while employed
with Jim Walter Resources and I continue to suffer from
that injury.
I am requesting that you consider these
conditions that I have rAised and allow my case to be
heard under the private provision of the law or if
necessary an investigation be initiated to collect the
necessary facts.
If you desire that I provide medical

1665

evidence to substantiate my condition, I can provide
that evidence.
In an undated letter addressed to the Commission's Chief
Judge Paul Merlin, and received on-May 22, 1991, Mr. Williams
stated as follows:
"I feel'"that the company violated several
rules under our contract and that they breached the contract in
several ways 11 •
A copy of an MSHA complaint form filed by Mr. Williams with
MSHA's District 7 Field, Hueytown, Alabama, on May 10, 1988,
reflects that he was employed by the respondent as a longwall
helper at a salary of $14.41 an hour.
The information on the
form further reflects the date of the alleged "discriminatory
action 11 as October 9, 1987, and the "persons responsible" as
Personnel Director Steve Dickerson and Longwall Coordinator Trent
Trachor.
In a handwritten statement signed by Mr. Williams on May 10,
1988, and attached to the complaint form, he stated that he was
discharged from his job, and that "they discharged me because of
the legal action that I have filed against the company and the
union.
I also feel that the company and union got together and
arranged my discharge".
A copy of a June 30, 1988, letter addressed to Mr. Williams
from MSHA's Chief, Office of Technical Compliance and
Investigation, Arlington, Virginia, informed Mr. Williams that
after a review of the information gathered during the
investigation of his complaint, MSHA made a determination that
JWR did not violate section 105(c} of the Act. The letter
further advised Mr. Williams of his right to file a complaint on
own behalf with the Commission within 30 days. Mr. Williams
not pursue his complaint further until January 25p 199lp when
he filed his instant complaint with the Commission.
JWR filed an answer to the complaint denying any
discrimination, and as part of its answer moved for a dismissal
the complaint on the following grounds~
The Complaint should be dismissed for failure
to state a claim upon which relief may be
granted under Section 105(c) of the Mine
Safety and Health Act.
The complaint is barred by the statute of
limitations and by laches.
3.

The complainant has failed to exhaust
contractual remedie~.

1666

4.

The complainant's claims are preempted under
§ 301 of the National Labor Relations Act.

5.

The complaint should be dismissed in its
entirety because it is frivolous and designed
to harass the respondent.

6.

The complainant has filed several other
complaints under § 105(c) and all such claims
have been dismissed in favor of the
respondent.

In further support of its motion, JWR points out that the
alleged act of discrimination appears to be a discharge which
allegedly occurred on October 9, 1987, nearly four years ago, and
that if the complainant had timely filed his complaint JWR would
have been in a much better position to investigate and defend
against the allegations made in the complaint. However, as a
result of the untimely filing_,., JWR believes it has been
prejudiced, and as an,example, it cites the fact that Steve
Dickerson, the personnel director who is named in the complaint,
and who was responsible for enforcing company procedures, is no
longer employed by JWR.
Discussion
It would appear that Mr. Williams wrote to the Secretary of
Labor in July and September 1990, concerning his complaints
against JWR. As a result of his letters, MSHA reviewed its files
and conducted a personal interview with Mr. Williams at his home
in October, 1990. Subsequently, by letter dated December 24,
1990r the Labor Department's Assistant Secretary for Mine Safety
and Health, William Jo Tattersall, advised Mro Williams that
based on MSHA 0 s review of the matter, 11 the issues you have raised
appear to be the same as those identified in the complaints you
previously filed with MSHA under the miner discrimination
provisions of the Federal Mine Safety and Health Act of 1977 11
With regard to the disposition of his prior complaintsv
Mro Tattersall advised Mro Williams as follows~
0

Each of those complaints have previously been acted
upon by MSHA. The last complaint, filed in May 1988,
concerned your discharge from Jim Walter Resourceso
By
letter dated June 30, 1988, MSHA responded advising you
that your complaint had been investigated to the extent
possible and that there was no violation of the Mine
Act's discrimination provisions. Throughout the
investigation, we found no facts to support a claim of
discrimination under the Mine Act.
During our most
recent contacts with you~ no additional information was
provided. Accordingly, our previous finding of no
discrimination remains unchanged.

1667

As you know, you have the right as a complainant to
file a complaint on your own behalf with the Federal
Mine Safety and Health Review Commission (Commission).
However, as you were advised in our letter of June 30,
1988, this right must be exercised within 30 days of
notification that MSHA-~has found no act of discrimination. While this filing period has clearly passed,
you advised us in our meeting with you in October that
you were either hospitalized or medically
incapacitated, or your medical condition may have
diminished your capability to fully participate in the
exercise of your rights.
If you believe that there is sufficient medical
evidence to support your incapacity at that time, you
might consider presenting this evidence and any other
evidence of extenuating circumstances directly to the
Commission, requesting that your complaint be accepted
by them under Section 105.( c) (3) •
As a result of the Tattersall letter, Mr. Williams
apparently obtained copies of his prior May 10, 1988, MSHA
complaint, and MSHA's June 30, 1988, adverse determination letter
through a Freedom of Information Act request made to MSHA's
Arlington, Virginia office, and his Commission complaint of
January 25, 1991, followed. In his complaint, Mr. Williams
asserted that he did not recall receiving MSHA's June 30, 1988,
determination letter, which states in part that his complaint was
investigated "to the extent possible" without his cooperation.
Mr. Williams further asserted that "at the time I was contacted
by the special investigator, I was hospitalized with a stress
related condition which was caused by my employment. I was never
interviewed by the special investigator and to my knowledge my
complaint was never investigated"o
In view of Mr. Williams 1 assertions that he had no knowledge
of the disposition of his May 10, 1988, complaint, I issued an
Order to Show Cause on August 8, 1991, affording the parties an
opportunity to submit information explaining the circumstances of
that complaint, the timeliness of Mr. Williams 0 appeal to the
Commission, and any documentation concerning any prior
complaints. Based on the information filed by the parties in
response to my order, it would appear that Mr. Williams filed the
following prior complaints~
Case No. BARB-CD-82-11
This case concerned a complaint by Mr. Williams that his
foreman, mine foreman, and others "have threatened me in a way
that I feel they will try and"' knock me off". Mr. Williams stated
that he was a belt repairman, and he alleged that he complained
about the tying up of large cables with small wire, and working

1668

under unguarded belts. He further alleged that "since this time
I have been fired out of the mine", and that mine management
tried to remove him from his job "because I complain about too
many things".
By letter dated March g, 1982, MSHA advised Mr. Williams
that after investigation of his complaint and a review of the
information gathered during the investigation, MSHA determined
that a violation of section 105(c) of the Act did not occur. The
letter also advised Mr. Williams of his right to further pursue
this determination by filing a complaint on his own behalf with
the Commission within 30 days. There is no information that
Mr. Williams filed any further complaint with the Commission.
Case No. BARB-CD-82-39
This case concerned a complaint filed by Mr. Williams with
MSHA on September 8, 1982. Mr. Williams had received a written
reprimand on September 2, 1982, for violating a company rule by
operating a track jeep at an unsafe rate of speed, and a copy of
an accident report reflects that an employee was injured when the
jeep collided with a manbus.
Mr. Williams characterized his complaint as a
section 105 (g)" complaint, and he alleged that he was
reprimanded because he had previously filed another "section
105(g)" complaint against the driver of the manbus involved in
the accident (the driver was identified as a foreman).
Mr. Williams further alleged that other union personnel had been
involved in accidents with management personnel, but only he was
singled out for a reprimand. He claimed disparate treatment
because only he and not the rnanbus driver was reprimanded, and he
also claimed that management 11 would like to get back" at him
because of
prior n105(g) 11 complaint, and that the union did
not come to his defense.
'1

MSHA investigated the complaint, and by letter dated
25 9 1983, Mr Williams was advised of MSHA 1 s determination
that a violation of section 105(c) had not occurred. The letter
also advised Mr. Williams of his right to appeal that
determination by filing a complaint with the Commission within
30 days"
There is no information that Mro Williams filed any
complaint with the Commissiono

l~pril

o

Case No. BARB-CD-84-34
This case concerned a complaint filed by Mr. Williams with
MSHA on July 9, 1984. Mr. Williams invoked his individual safety
grievance rights by filing the complaint against the general mine
foreman, his shift foreman, and two union co-workers who worked
on his shift. Mr. Williams alleged that the two co-workers were
trying to injure him on the job by engaging in unsafe acts, and

16'69

that one of them had cursed him and threatened to beat him up.
He further alleged that his request to be transferred to another
work area under a different foreman was denied, and that his
foreman had threatened to fire him_ if he complained to the
"safety men"o He also alleged that the two co-workers engaged in
horseplay, that they conspired to have him moved to another job,
and otherwise threatened and harassed him without intervention by
the foreman.
Mr. Williams stated that he did not feel that he
could continue to work under these conditions and he requested to
be paid for all lost time while he was off work.
On July 25, 1984, Mr. Williams filed a regular union
grievance u1 demanding that management make every effort to work me
in my classification that I bidded on 11 • The grievance was
settled by the union and management after management agreed "to
work the grievant in his bid classification to the extent that it
is practicable to do so".

On August 6, 1984, Mr. Williams amended his July 9, 1984,
MSHA complaint and he, alleged, 'ttiat after working four years on
the same job, management disqualified him from the job, cut his
pay from Class 4 to Class 1, and placed him in jobs which were
unsafe and hazardous.
He claimed that his union contractual
rights were
ated.

In a letter dated August 30, 1984, from JWR to MSHA's
special investigator, JWR supplied the investigator with a
doctor 1 s statement of August 8, 1984, reflecting that
Mr. Williams was hospitalized under the care of Birmingham
Psychiatry 1 P.A. 1 on August 7, 1984. JWR also supplied the
investigator with copies of the July 25, 1984, grievance
reflecting a settlement of the dispute.
eptember 11, 1984 from JWR to MSHA 1 s
: JWR informed the special investigator that
Mr. Williams was having problems working with other union coworkers on the belt crew and that on July 5, 1984, after further
arguments
th his crew 7 and at his request, Mr. Williams was
:::eass
:-:iowever 11e ·was absent from work about two weeks for
medical ~easons, and
s ~ime, management decided that it
would be best to separate Mr.
lliams from the belt crew with
whom h·e was
trouble.
JWR further stated to the investigator that upon
Mr.
liams! return to work a
his hospitalization he
informed
foreman that he did not want to be reassigned and
filed the grievance stating his desire to work in the
classification he bid on, which was belt repairman.
JWR pointed
out that pursuant to the grievance settlement, Mr. Williams was
reassigned to the belt repairman position, and although he
suffered a loss of pay amounting to $15.90, for three shifts,
that issue was also settled through the grievance procedure.

1670

JWR denied that Mr. Williams was ever assigned to any jobs that
were unsafe, and it pointed out that Mr. Williams was aware of
the fact that he had a contractual right to remove himself from
any condition he believed to be unsafe, but did not do so.
Finally, JWR pointed out that Mr. Williams believed that the
company had violated his unfon-management contractual rights.
Citing Lane v. Eastern Associated Coal Corporation, 2 MSHC 1082
(1980), and Harry P. Gilpin v. Bethlehem Mines Corporation, 6
FMSHRC 47 (January 1984), JWR took the position that such
contractual matters are not within the jurisdiction of the
Commission.
MSHA investigated the complaint, and by letter dated
October 10, 1984, Mr. Williams was advised of MSHA's
determination that a violation of section 105{c) had not
occurred. The letter also advised Mr. Williams of his right to
appeal that determination by filing a complaint with the
Commission within 30 days. There is no information that
Mr. Williams filed any complat!lt with the Commission.
Case NO. BARB-CD-86-38
This case concerned a complaint filed by Mr. Williams with
MSHA on April 17, 1986. Mr. Williams alleged that coal was being
cut with the methane monitor showing 1.7 and 1.8 percent methane,
that he complained about this to the longwall coordinator, and
that he withdrew himself from the mine on several occasions. He
also alleged that his foreman tried to injure him by activating a
longwall shearer valve while he (Williams) was near the pan line.
A copy of a disciplinary action dated April 16, 1986,
supplied by JWR, reflects that Mr. Williams was suspended for
~ive days with intent to discharge; for the following reason~
0
'Violation of work rule #1 and work rule #7, cursing,
intimidating and insubordinate conduct toward his supervisor in
front of entire crew and failure to obey a direct order".
In a letter dated May 28, 1986, to MSHA 1 s special
investigatorr JWR disputed Mr. Williams 1 allegations, and after
investigationv MSHA advised Mr. Williams by letter dated June 12,
1986v that the information received during its investigation did
not establish a violation of section 105(c) of the Aet. The
letter also advised Mr. Williams of his right to appeal this
determination by filing a complaint with the Commission within
thirty days" There is no information that Mr. Williams filed any
further complaint.
NLRB Complaint
In addition to the aforementioned MSHA complaints,
Mr. Williams filed a complaint on July 3, 1986, with the National
Labor Relations Board against the United Mine Workers of America,

1671

· and the basis for his charge is stated as follows in the
complaint form which he signed:
On or about April 17, 1986, tne above-named labor
organization through its officers, agents and
representatives failed'"to properly process Willie
Williams grievance because of his race and internal
union political activities.
The medical information supplied by Mr. Williams reflects
the following:
1.

A statement of August a, 1984, addressed to
JWR by Doctor James M. Lee, Birmingham,
Psychiatry, P.A., Birmingham, Alabama,
confirming that Mr. Williams was admitted to
Baptist Medical Center, Birmingham, Alabama,
on August 7, 1984, and that he was currently
hospitalized.

2.

A Physical and History Report prepared by
Doctor Lee on August 7, 1984, in which
Dr. Lee recorded his "impression" of
Mr. Williams' condition as "Adjustment
reaction with depression and anxiety.
Chronic low back syndrome". The doctor noted
that Mr. Williams would undergo physical and
psychiatric evaluation, and that appropriate
medication would be prescribed. The report
reflects that Mr. Williams reported that he
strained his back in August, 1983, was seen
at a hospital emergency room, and that he has
taken medication in the past for his back
complaintso

3o

A consultation report prepared by Dr. Sue
Trant, PHO, on August 20, 1984, in which the
following diagnostic impressions are
recorded: 11 1. Adjustment disorder with mixed
emotional features including anxiety,
depression, anger and hypersensitivityo
2. Personality disorder with dependent and
passive aggressive features".

4.

A consultation report prepared by Dr. Trant
on June 21, 1987, in which the following
diagnostic impressions are recorded:
11
1. Rule out major depression.
2. Rule out
melancholia with significant anxiety.
Psychological factors affecting physical
condition. 4. Mixed personality disorder".

1672

5.

A July l, 1987, statement addressed to
Dr. Lee by the respondent's insurance
benefits claims department (Aetna Life and
Casualty) certifying Mr.~Williams for
admission to the Birmingham Baptist Medical
Center.
~

6.

A September 14, 1987, statement addressed to
JWR by Dr. Tyree J. Barefield-Pendleton,
Bessemer, Alabama, stating that Mr. Williams
was under the doctor's care for low back pain
and was unable to report for work because of
his illness. The doctor stated that Mr.
William "has been disabled since 5/14/87, and
he is still disabled".

7o

A November 15, 1989, statement addressed to
the United Mine Workers of America by Dr. Lee
stating that Mr. Williams has been a patient
under his care beginning August 7, 1984, and
that he was_ last seen·· in the doctor 1 s off ice
on November 15, 1989. The statement reflects
the doctor's opinion that Mr. Williams is
disabled and unable to be gainfully employed,
and that "an integral part of his health
problems stem from his job conflicts 11 •
The
statement also reflects that Mr. Williams was
drawing social security disability benefits
since 1987.

8.

An October 15, 1987, letter from Dr. Lee to
an attorney summarizing Mr. Williams'
hospitalization and treatment. With respect
his 1987 hospitalization, Dro Lee states
Mr. Williams was hospitalized from June
15, 1987 through June 30, 1987. Dro Lee
noted several follow-up office visits, and
the summary includes a statement by Dr. Lee
that Mr. Wiliams "reported that he was
feeling extremely frustrated in his attempts
to deal with his company concerning his
benefitsn.
Findings and Conclusions

Mro Williamsi Prior 1982-1986 Complaints.
After careful review of all of the information submitted by
the parties, I find no reasonable basis for revisiting any of the
prior 1982 through 1986 complaints filed by Mr. Williams with
MSHA. It seems clear to me from the information provided that
MSHA investigated each of those complaints and concluded that JWR

1673

had not violated section 105(c) of the Act. Further, the
information submitted by the parties, including Mr. Williams,
includes copies of MSHA's determination letters advising
Mr. Williams of the results of its_ investigations and informing
him of his right to file fu;ther complaints with the Commission
if he so desired. There is-"'no evidence that Mr. Williams filed
any such complaints, and he does not claim that his complaints
were not investigated or that he_was not advised of MSHA's
dispositions of those complaints. I take note of the fact that
in his statement filed September 12, 1991, in response to my show
cause order, at page 5, Mr. Williams acknowledges that in each
instance where he alleged he was terminated prior to July 1987,
he was restored to duty through the grievance procedure. Under
the circumstances, I conclude and find that Mr. Williams'
attempts to reassert these prior complaints and incorporate them
by reference with his most recently filed complaint with the
Commission are clearly untimely and they are rejected.
Mr. Williams has submitted a copy of a November 15, 1990,
internal MSHA memorandum authored by- MSHA headquarter special
investigator Wilbert B. Forbes, the investigator who personally
contacted and interviewed Mr. Williams in response to his July
and September 1990, letters to the Secretary of Labor.
Mr. Forbes is critical of the "lack of thoroughness" with respect
to MSHA's field investigations of some of Mr. Williams prior
complaints, but he concludes that "due to the passage of time
little if anything can be done". I conclude and find that the
personal opinions of Mr. Forbes with respect to MSHA's prior
investigations provide no basis for allowing these prior
complaints to be reasserted in the instant proceeding, and any
suggestion to the contrary by Mr. Williams is rejected.

Mro Williamsu Present Complaint
In his present Commission complaint, Mr. Williams seeks an
opportunity to pursue his discharge of October 9, 1987, by JWR.
As noted earlier, at the time he filed his complaint with MSHA,
he claimed that he had been discharged "because of 'the legal
action that I have filed against the company and union. I also
feel that the company and union get together and arranged my
dischargeui, He named company personnel director Steve Dickenson
and longwall coordinator Trent Trachor as the company officials
responsible for this discharge. As part of his Commission
complaint, Mr. Williams stated as follows: "I feel that the
company violated several rules under our contract and that they
breached the contract in several ways".
I take note of the fact that in his prior MSHA complaint, as
well as the instant Commission complaint, Mr. Wililams never
alleged that his discharge was in any way connected with any
safety complaints or protected activity on his part. In view of
the untimely filing of the complaint with the Commission (three

1674

years after it was filed with MSHA, and four years after the
discharge), and the absence of any allegation that the discharge
was safety related, JWR moved for a summary dismissal of the
complaint.
In addressing the question of the timeliness of his
complaint, Mr. Williams seeks to excuse his untimely filing by
asserting that he was hospitalized with a stress condition in
1987, when he was contacted by MSHA's special investigator, that
he was never interviewed by the investigator, and that he could
not recall ever receiving a copy of MSHA's determination letter
advising him of the results of the investigation of his
complaint. In fairness to Mr. Williams, he was afforded an
opportunity to document these claims, and in response to my
orders both he and the respondent have submitted information
relative to his condition at the time of his complaint, as well
as an assortment of additional matters.
With regard to any protected safety rights, Mr. Williams,
through his counsel, suggests that his discharge during a longterm disability "might be a pretext and a sham". In addition,
Mr. Williams takes issue with MSHA's investigation of his
complaint, and the manner in which his union represented him
during an arbitration related to his discharge. Mr. Williams
alleges that the union failed to reschedule his arbitration
hearing despite being told that he was medically disabled. He
also alleges that he was unable to appear at the Arbitration
hearing.
With regard to his discharge, based on the information
supplied by Mr. Williams, it would appear that the October 9,
1987 9 date of termination is in fat the day that the arbitrator
who presided over his discharge grievance decided the grievance
JWR 1 s favoro The information supplied by Mr. Williams
reflects that JWR sent him a letter on August 28, 1987,
suspending him with intent to discharge for a violation of the
labor-management contract of 1984 and a company wol;"k rule
relating to unsatisfactory work attendance. The arbitration
decision reflects that the proposed discharge proceeded to the
24-48 hour meeting stage, and then went to arbitration by the
uniono Contrary to Mr. Williams' assertion that the union failed
to reschedule the arbitration hearing, the arbitration decision,
on its face, reflects that the hearing was originally set for
September 14v 1987, and although Mr. Williams did not appear at
that time, the union asked for a continuance, and it was granted
over the objection of JWR. The hearing was rescheduled and held
on October 1, 1987, and the grievance decision reflects that
Mr. Williams appeared and participated in the hearing.
I have reviewed the arbitration decision sustaining
Mr. Williams' discharge, and nowhere is there any mention of any
safety complaints or protected activity by Mr. Williams as the

1675

reason for the discharge. The sole issue in that case was
whether or not the work absences which prompted JWR to suspend
and discharge Mr. Williams were justified because of his asserted
work-related illnesses and injuries. I take note of the fact
that the arbitrator was the same individual who had previously
ordered Mr. Williams reinsta'°'ted after a previous discharge in
October, 1986, for absenteeism. In that previous proceeding,
although Mr. Williams was ·reinstated, the arbitrator observed
that Mr. Williams "appears to be a chronic absentee".
With regard to MSHA's investigation of his complaint,
Mr. Williams states that he did not meet with MSHA's special
investigator Dennis Ryan because "he was simply unable to do so".
In an undated affidavit, Mr. Williams suggests that he never met
with Mr. Ryan because he was under a doctor's care and was
dysfunctional as the result of treatment for depression.
However, the aforementioned Forbes Memorandum reflects that
during a personal interview with Mr. Forbes, Mr. Williams
acknowledged that he was contacted by Mr. Ryan, but refused to
speak with him because he wa,sd not· sure of his identity and
whether or not Mr. Ryan would be fair in the conduct of his
investigation. Mr. Ryan confirmed to Mr. Forbes that
Mr. Williams refused to talk to him. This information is
corroborated by a July a, 1990, memorandum by Mr. Ryan, a copy of
which was supplied by Mr. Williams, in which Mr. Ryan confirms
that Mr. Williams would not meet with him and that he provided no
witnesses or information concerning his complaint.
I take further note of the fact that in the October, 1987,
grievance proceeding, the arbitrator expressed some credibility
reservations with respect to some of the medical evidence
submitted by Mr. Williams in defense of his absences from worku
a.nd noted that Mr. Williams stated that he "had no intention of
ever returning to work and that he had filed for total
disability 1i . With regard to the initial continuation of the
grievance hearing, the arbitrator observed that Mr. Williams was
given the benefit of the doubt when the continuance was granted.
The arbitrator also made reference to the fact that while he was
attempting to obtain doctor's excuses to justify a continuance,
Mro Williams was at the same time making court appearances and
testifying on September 8, and 16, 1987, in connection with
certain workers 1 compensation claims he had filed against JWR.
The arbitrator observed that "it seems clear that Mr. Williams
was able to attend to all his business except to appear" at the
initial grievance hearing.
After careful review of all of the information submitted by
Mr. Williams, I am.not convinced that his treatment and
hospitalization for stress and his chronic back ailments mitigate
or excuse his failure to timely pursue his complaint further
before this Commission. Mr. Williams makes no claim that he was
ignorant of his rights and remedies under the Mine Act. His

1676

claim is that he was being treated for stress and could not
recall receiving MSHA's determination letter which included
information concerning his right to file a further complaint with
the Commission. However, given the number of complaints and
grievances Mr. Williams has filed over the years, I cannot
conclude that he was unawar' of his rights and remedies. Indeed,
Mr. Williams makes no claim that he never received any of the
prior MSHA adverse determination letters in which he was
specifically informed of his right to file further complaints on
his own behalf with the commission within 30 days if he disagreed
with MSHA's determination.
In David Hollis v. consolidation Coal Company, 6 FMSHRC 21
(January 9, 1984), aff'd mem., 750 F.2d 1093 {D.c. Cir. 1984)
(table), the Commission affirmed a dismissal of a miner's
discrimination complaint filed six months after his alleged
discriminatory discharge. In that case, the commission stated
that "Tardiness questions must be resolved on a case-by-case
basis, taking into account the unique circumstances of each
situation", 6 FMSHRC _24.
In Ernie L. Bruno v. Cyprus Plateau Mining Company,
10 FMSHRC 1649 (November 1988), Commission Review Denied January,
1989, aff'd, No. 89-9509 (10th Cir., June 5, 1989) (unpublished),
Commission Judge John Morris found that a complaint filed more
than four and one-half years after the alleged act of
discrimination was untimely. He concluded that the company
officials who investigated and made the termination decision no
longer worked for the company, and that it was questionable
whether these individuals would have a present recollection of
the events in question.
In Joseph Wo Herman Vo IMCO Services, 4 FMSHRC 2135Q 21389, (December 1982), _the Commission observed that the placement
limitations on the time-periods during which a plaintiff may
institute legal proceedings is primarily designed to assure
fairness to the opposing party by:

2

preventing surprises through the revival of claims
that have been allowed to slumber until evidence has
been lostp memories have faded, and witnesses have disappearedo The theory is that even if one has a just
claim it is unjust not to put the adversary on notice
to defend within the period of limitation and that the
right to be free of stale claims in time comes to
prevail over the right to prosecute them.
ooo

Mr. Williams suggests that allowing him to proceed with his
complaint would only result in minimal prejudice to the
respondent "because the business records still exist, and the
issues are narrow". The respondent, however, points out that
personnel director Steve Dickerson, the individual responsible

1677

for enforcing the company rules at the time of Mr. Williams'
discharge, is no longer employed by JWR. Further, JWR maintains
that if the filing deadline had been met by Mr. Williams, it
would have been in a much better position to investigate and
defend against the allegations made in the complaint. JWR
believes that it would be prejudiced if it is now required to
def end against an untimely claim based upon a discharge which
occurred four years ago. I agree.
After careful examination of all of the available
information, and aside from the fact that the complaint is
untimely, I believe that Mr. Williams' complaint against JWR is
the result of a longstanding contractual dispute connected with
his asserted job-related injuries, disability compensation, and
workers' compensation claims. Under the circumstances, I reject
Mr. Williams' attempts to "bootstrap" these disputes into a
viable discrimination complaint pursuant to section 105(c) of the
Mine Act. Accordingly, I conclude and find that the complaint
should be dismissed.
ORDER
In view of the foregoing findings and conclusions, the
complaint filed by Mr. Williams IS DISMISSED, and his claims for
relief pursuant to section lOS(c) of the Mine Act ARE DENIED.

~A.t?o~
Administrative Law Judge

Distribution~

Gregory T. Bailey, Esq., 434 Flat Shoals Avenue, S.E., Atlanta,
GA 30316
(Certified Mail)
David Mo Smith 1 Mark Strength, Esqs., Maynard, Cooperv Frierson &
Gale 1 PoCou 1901 Sixth Avenue North, 2400 AmSouth/Harbert Plaza,

Birmingham, AL

35203-2602

(Certified Mail)

Harold Rice, Esq., Jim Walter Resources, Inc., No. 7 Mine, Rt. 1,
Box 9750, Brookwood, AL 35444 (Certified Mail)
/ml

1678

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

OCT 16 1991
CIVIL PENALTY PROCEEDING

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

v.
MACK ENERGY COMPANY,
Respondent

Docket No. WEVA 91-142
A. C. No. 46-06887-03522

.

Montague Mine

DECISION
Appearance:

Pamela s. Silverman, Esq., Office of the Solicitor,
u. s. Department of Labor, Arlington, Virginia, for
the Secretary;
Gerald P. Duff, Esq., Hanlon, Duff & Paleudis
co., LPA, St. Clairsville, Ohio, for the Respondent.

Before:

Judge Maurer

This civil penalty proceeding concerns proposals for the
assessment of civil penalties against the respondent, Mack Energy
Company (Mack) pursuant to section llO(a) of the Federal Mine
Safety and Health Act of 1977v 30 U.S.C. § 820(a), for four
alleged violations of certain mandatory safety standards found in
Part 77s Title 30 Code of Federal Regulations. At hearing, the
parties proposed a settlement concerning three of these
section 104(d) (2) orders.
Concerning Order No. 3476017, the
~ecretary proposes to modify it to a section l04(a) citation and
reduce the civil penalty from $850 to $395. With regard to Order
No. 3476019, the Secretary proposes to also modify that order to
a section 104(a) citation and likewise reduce the proposed
penalty from $850 to $395.
Finally, the Secretary also proposes
to modify Order No. 3476030 to a section l04(a) citation and
reduce the proposed civil penalty from $1000 to $395. Taking
into account the six statutory criteria for civil penalty
assessment contained in section llO(i) of the Act, I conclude
that the proposed settlements are reasonable, proper and in the
public interest. They are therefore approved and will be
incorporated into my final decision and order herein.
The issues contained in one section 104(d) (2) Order~
Order No. 3476018 were tried before me on May 30, 1991, in
Wheeling, West Virginia.
Both parties have filed posthearing
briefs, which I have duly considered in making the following
decision.

1679

STIPULATIONS
The parties stipulated to the following, which I accepted
(Tr. 10-11):
1. Mack Energy Company is the operator of the Montague Mine
which is the subject of this proceeding.
2. Operations at the Montague Mine are subject to the Mine
Safety and Health Act.
3. The undersigned Administrative Law Judge has
jurisdiction to decide this case.
4. MSHA Inspector Sherman Slaughter was acting in an
official capacity as a duly authorized representative of the
Secretary of Labor when he issued Order No. 3476018 on July 12,
1990.

5o A true copy of Order No. 3476018 was properly served on
the operator or its agent.
6. The violation history constitutes 57 assessed violations
on 49 inspection days which is an average of 1.165 violations per
inspection day.
7. The violation was abated within the time set for
abatement.

8. The operator is a moderate sized operator, and the mine
is a moderate sized mine. The operator produced 222,000 tons and
this mine produced 209,000 tons in 1989.
DISCUSSION
Section 104(d) (2) Order Noo 3476018.was issued by MSHA
Inspector Sherman Slaughter on July 12, 1990. The inspector
cited a violation. of the mandatory safety standard found at
30 C.F.R. § 77.1004(b) 1/ and the cited condition or practice is
described as follows:
Loose, cracked, unconsolidated, overhanging rocks
existed in the approxo 35 foot highwall of the
Pittsburgh 8 pit where an end loader and two rock
trucks were loading spoil directly under the rocks and
hauling it back along the highwall. The rocks existed
in the wall approximately 20 feet above the floor of
1/

This section of the standards requires that overhanging
highwalls and banks be taken down or in the alternative, the area
posted.

1680

the pit and extended along the wall approximately
120 feet. The affected area was not posted and this
was an unsafe ground condition with overhanging
highwall. Jack Wilfong, superintendent, examined this
pit area and highwall and directed the end loader and
rock trucks to work in the pit. He knew this condition
existed. It was raining and had rained during the
night previous to this shift.
on July 12, 1990, Inspector Sherman Slaughter conducted an
inspection of the Montague Mine. He arrived at the mine site at
approximately 6:00 a.m., and met with miner safety representative
Larry Curtis, maintenance foreman Bud Conner, and mine
superintendent Jack Wilfong. However, only Larry Curtis
accompanied Inspector Slaughter on the ensuing inspection.
During that inspection, the inspector examined the highwall
in the Pittsburgh Eight Pit and found what he described as loose,
cracked rock and twc:;> areas of'..overhanging rock extending out from
the wall a distance of approximately 6 and 8 feet, respectively.
The overhangs and cracked rock encompassed a distance of
approximately 120 feet along the wall.
The 8 foot overhang was supported by a rock which was
cracked on both sides and was identified by the inspector as the
"No. 1" rock. [The rock the inspector was most concerned with see Govt. Ex. Nos. 3 and 4]. On one side of the "No. l" rock,
the crack had widened into an 8 to 10 inch vertical gap filled
with loose rock. The cracked gap extended up the wall and curved
around toward the overhang where it intersected with another
vertical crack. This crack had also widened into a gap of
approximately 6 inches and extended up the overhang from where
the overhang met the highwall" In additionv another crack
extended down the wall behind the 91 Noo 1uu rock and the cap rock
on top of the overhang consisted of layered or fractured
sandstone which was not consolidated with the wall.
Significantlyp neither of the aforementioned overhangs were
posted as required by 30 CoFoR § 77.1004(b). That fact alonev
without morev substantiates a violation of the cited standard.
That settled, the next issue to consider is whether the failure
to take down the overhangs or post the area is a nsignificant and
substantial 10 violation of the cited mandatory standard.
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

1681

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 Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U. s. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantialo Uo So Steel Mining Company, Inco,
6 FMSHRC 1866 9 1868 (August 1984); Uo S.Steel Mining
Company, Inc. 8 6 FMSHRC 1573 1 1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violationv including the nature of the mine
involved, Secretary of Labor Vo Texasgulf, Inc.v 10 FMSHRC 498
(April 1988) p Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
December 1987)"
Inspector Slaughter testified that due to the condition of
the highwall and the fact that he observed an end loader and two
rock trucks working in the area around the highwall, he believed
there to be a significant rock fall hazard if the condition was
not abated.
Furthermore, I believe the inspector properly

1682

considered the effect of continuing mining operations on the
gravity of the situation. The overhanging rocks were large and
because of the existing cracks in the wall, reasonably likely to
fall if the overhanging conditions were allowed to persist.
Respondent Mack raises two substantive issues in defense of
this point. First, they contend that the highwall was safe.
They know this because they tried to scale the entire highwall a
day or two prior to the citation being issued and no loose
material could be brought down. .But this defense fails to take
into account the dynamics of the environment the highwall exists
in. Changes in the weather occur for instance. It was raining
at the time the citation was issued and it certainly is in the
realm of possibility that it could rain for several days running.
A lot of running water could loosen a rock that just a few days
before could not be scaled down. The inspector testified from
his experience that he has observed many occasions where a rock
could not be scaled down off a highwall only to have it fall out
of the wall at some later time because of changing pressures in
the highwall or because of weather-related deterioration of the
highwall.
Secondly, Mack contends that the inspector must be mistaken
or even lying about seeing the end loader and rock trucks
operating at ll:OO a.m., underneath the overhanging rocks. Upon
reflection, it is my view that it is not necessary to belabor the
issue of exactly what time the equipment was in service or out of
service. Nor is it essential to prove that the equipment was
operating directly underneath the overhanging rocks. What is
clearly in the record is the inspector's sworn testimony, which I
do credit, that he personally observed the equipment working in
the area of the overhanging highwall that morning between 10:00
and 11~00 a.mo He testified that he saw the situation at
approximately 10g30 a.m. and issued the order at ll:OO a.mo More
specificallYv he observed the two rock trucks working within
12 to 15 feet of the highwall at that time. Given the condition
of the highwall that morning, that was too close in his opinion,
and a serious or even fatal injury could reasonably have resulted
if any of this overhanging rock material had fallen down on them.
The important features at this stage of the proceeding are
that the overhanging highwall had not been taken down or posted
and men were working in that area that morning. It is not so
important exactly what time it was, or if the equipment that was
operating was ever observed directly underneath the overhangs.
The rock trucks passing 12 to 15 feet from the wall as they
backed in front of the overhang is close enough to make this an
"S & S" violation and I so find.
I fully realize that there is a conflict in the evidence.
The respondent's witnesses state that the end loader broke down
between 9:00 and lO:OO a.m. on the morning in question, whereas

1683

the inspector insists that the two rock trucks were still
operating at 10:30 a.m. Since there would be no use for the rock
trucks without the end loader to load them, by implication, the
respondent's evidence is that they also were not operating at
that time. on the other hand, the inspector was at the mine site
since 6:00 a.m. that morning. Maybe he saw the rock trucks in
operation before 10:30 or even before 10:00 a.m. In any event,
he was a very credible witness with no demonstrable bias against
this operator. He testified very clearly on direct that he saw
the rock trucks operating in the close vicinity of a potentially
dangerous overhanging highwall. He was unshakable on crossexamination and I simply believe him. He has no reason to lie
about it and I believe the trucks were operating where he says
they were that morning at approximately 10:30 a.m., give or take
30 minutes.
The Secretary also urges that I find this violation to be an
"unwarrantable failure."
It should be pointed out-here that Order No. 3476018 was
issued by Inspector Slaughter as a section 104(d) (2) order on
July 12, 1990, relying on section 104(d) (l) Order No. 3334014 in
the section l04(d) "chain" for its procedural validity. However,
on March 15, 1991, Commission Judge George A. Koutras modified
that (d) (1) order which had been issued on January 4, 1990, to a
section 104(d) (1) citation. Mack Energy company, 13 FMSHRC 432,
468 (March 1991).
Section 104(d) (l) authorizes the inspector to issue an
unwarrantable failure order if, during the same inspection, or
any subsequent inspection conducted within 90 days after the
issuance of the initial unwarrantable failure citation, he finds
another violation of any mandatory safety standard which he
believes was also caused by an unwarrantable failure by the
operator to complyo
In this case, however, since more than 90 days elapsed
between the issuance of section 104(d) (1) Citation No. 3334014 on
January 4u 1990, and the purported order issued by Inspector
Slaughter on July 12, 1990, it cannot stand as a section 104(d)
ordero It must therefore necessarily be modified to either a
section 104(a) citation or a section 104(d) (1) citation,
depending on the unwarrantable failure finding which I make
Jllereino
The Commission has held that an "unwarrantable failure" to
comply with a mandatory standard means "aggravated conduct,
constituting more than ordinary negligence, by a mine operator in
relation to a violation of the Act." Emery Mining corporation,
9 FMSHRC 1997 (December 1987); Youghiogheny & Ohio coal company,

1684

9 FMSHRC 2007 (December 1987); Secretary of Labor v. Rushton
Mining Company, 10 FMSHRC 249 (March 1988). Referring to its
prior holding in the Emery Mining case, the Commission stated as
follows in Youghiogheny & Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is
conduct that is "inadvertent," "thoughtless"
or "inattentive," unwarrantable conduct is
conduct that is described as "not
justifiable" or Hinexcusable. 11 Only by
construing unwarrantable failure by a mine
operator as aggravated conduct constituting
more than ordinary negligence, do
unwarrantable failure sanctions assume their
intended distinct place in the Act's
enforcement scheme.
Superintendent Wilfong was aware of the condition of the
highwall, knew it was not posted or "dangered off," and knew men
(rock truck drivers) were to-be working in the immediate area of
the highwall on the morning of July 12, 1990. I therefore find
that the failure of Wilfong to either promptly take down the
overhanging portions of the highwall or post the dangerous area
exposed miners to a falling rock hazard and constitutes
negligence of such an aggravated nature so as to establish an
"unwarrantable failure" in this case. Under these circumstances,
the inspector's "unwarrantable failure" findings will be affirmed
herein.
With regard to the assessment of a civil penalty for the
violation, the parties have stipulated to the operator's
violation history 1 good faith abatement, and moderate size and I
concur in the inspector 1 s high negligence and "S & S" findings.
also find the violation to be a serious one.
On the basis of the foregoing findings and conclusions, and
taking into account the six statutory civil penalty assessment
criteria found in. section llO(i) of the Act, I conclude and find
that a civil penalty of $700 is reasonable and appropriate.

ORDER
lo Order Nos. 3476017, 3476019, and 3476030 ARE MODIFIED to
section 104(a) citations, with "S & S" findings, and as modified,
they ARE AFFIRMED.

2. Order No. 3476018 IS MODIFIED to a section 104{d} (l)
citation, with an "S & S" finding, and as modified, it IS
AFFIRMED.

1685

3. Mack Energy Company is ORDERED TO PAY the sum of $1885
within 30 days of the date of this decision as a civil penalty
for the violations found herein.

Law Judge
Distribution:
Pamela s. Silverman, Esq., Office of the Solicitor, u. s.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)
Gerald P. Duff, Esq., Hanlon, Duff & Paleudis co., LPA,
46457 National Road West, St. Clairsville, OH 43950 (Certified
Mail)
dcp

1686

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, &n:I FLOOR
WASHINGTON, D.C. 20006

October 16, 1991
J. MIKE PLEVICH,
Complainant

.
.

v.

DISCRIMINATION PROCEEDING
Docket No. WEVA 91-1993-D
MORG CD 91-03
Humphrey No. 7 Mine

CONSOLIDATION COAL COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Merlin

On August 14, 1991, .the,.complainant filed with the Commission a discrimination complaint pursuant to section 105(c) of the
Mine Act. 30 u.s.c. § 815(c). On August 19, 1991, the Commission sent a letter to the Complainant requesting him to send
additional information in order to process his complaint. On
October 2, 1991, the Complaint filed a letter stating that he was
withdrawing his complaint because he had received favorable
results through a grievance procedure.
In light of the foregoing, the Complainant's request to
withdraw his complaint is GRANTED.
It is ORDERED thaf this case be and is hereby DISMISSED.

--

Paul Merlin
Chief Administrative Law Judge
Dist'ributiong
Mro Jo Mike Plevich, Chairman Safety Committee, Local 1058,
District 31, UMWA, 444 Western Avenue, Morgantown, WV 26505
(Certified Mail)

Mr. John Higgins, Consolidation Coal Company, P.
Osage, WV 26505 (Certified Mail)
/gl

1687

o. Box 100,

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

OCT 211991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.. CIVIL PENALTY PROCEEDING
Docket No. CENT 90-110
A.C. No. 29-01168-03532

Docket No. CENT 90-143
A.C. No. 29-01168-03533

v.

Docket No. CENT 90-144
A.C. No. 29-01168-03534
SAN JUAN COAL COMPANY,
Respondent
.

San Juan Mine & Plant
.. Docket
No. CENT 90-166
A.C. No. 29-01825-03513
La Plata Mine

DECISION
Appearances:

Michael H. Olvera, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
:tor Petitioner u
Donald Lo Jumphreysu Esqo 0 San Juan Coal Companyu
San FranciSCOe california 0
:tor Respondent"

Before~

Judge Lasher

In these four proceedings the Secretary of Labor (MSHA)
seeks assessment of penalties tor a total of 26 alleged violations {described in 26 Citations) pursuant to Section llO(a) of
the Federal Mine Safety and Health Act of 1977 0 30 U.S.Co
§ 820(a) (1977)0
Atter the commencement ot hearing in Durango, Colorado, on
May 13 0 1991, the parties concluded settlements ot 22 of the 26
enforcement documents, which accord as reflected below was approved from the bench and is here affirmed.
The remaining four
Citations (three involving so-called "grounding" charges and one
"highwall" matter involving an alleged infraction ot Respondent's
Ground Control Plan) were tully litigated. As result of the settlement, the only Citation involved in Docket No. CENT 90-110 was
fully disposed of.

1688

As to the four Citations litigated, Respondent challenges
the occurrence ot violation on all and the "Significant and Substantial" designations in two of the three "grounding" Citations
(Nos. 3414864 and 3413540) and the highwall Citation, and as to
the grounding Citations mal~es a serious challenge to the standard involved on the basis that it is unconstitutionally vague
with respect to its application to the three electrical appliances cited, pointing out that MSHA's Program Policy Manual (Ex.
P-7, II-T. 27-28, 40-42) and personnel have apparently exempted
the type ot appliances involved here trom coverage.
DOCKET NO. CENT 90-110
This docket contains one Citation, No. 9996512, which was
settled at the hearing. Pursuant to their agreement, the parties
concur that this Citation should be modified

C1) to change paragraph 10 A thereof to reduce the "Gravity"
ot the violation from 11 Reasonably Likely" to "No
Likelihoodn~

( 2)

to change paragraph 10 B thereof trom "Lost Workdays or
Restricted Duty" to "No Lost Workdays";

(3)

to delete the "Significant and Substantial" designation
contained in paragraph 10 C thereof; and

( 4)

to change the 11 Negl igence" designation in paragraph 11 A
from "Moderate" to "Low."

the parties stipulated that $147 is an appropriate
penalty for this violation.
Such penalty is here assessed and
the settlement reachedu having been approved tram the bench, such
is here AFFIRMED.

2=\s rnodi.tiedv

ORDER (CENT 90-110)
Citation Noo 9996512 is MODIFIED as agreed to by the parties
as set forth above. Respondent, if it has not previously done so,
SHALL PAY to the Secretary of Labor within 30 days from the date
ot this decision the sum ot $147 as stipulated.
DOCKET NO. CENT 90-166
This docket contains one Citation, No. 5414864, a so-called
grounding" allegation which was not settled. Discussion and
decision thereof appears below under the heading "Three Grounding
Citations."
11

1689

DOCKET NO. CENT 90-143
This docket contains to Cl.tatiops, 18 of which were settled
at hearing. Of the remaining two Citations, No. 3413540 involves
an alleged infraction of 3'0 c. F.R.~ S 77. 701 and is discussed in
the subsequent section '."Three Grounding Citations." The last
Citationt No. 3414683, ref~rred to ~n th~· transcript as the
"highwall" Citation, is likewise disc·ussed and decided
subsequently.
THE. PARTIAL

SETTLEMENT

As noted, .LS ot the Ci drtions· were ~ettled at the hearing.
Respondent agreed to pay in full MSHA's initially proposed penalties as to 11 of these lli, 6 were modified, and
as to one, Citation Np·. 3413538, the "excessive history" upgrading was waived by Petitioner and th~ proposed penalty reduced
trom $649 to $413. The agreement reached as set forth below was
approved trom the bench at hearing Cl.nd that approval is here
AFFIRMED.
. .
CI-T. 98-104).

Citation
Number

Agreed Penalty

Modification

413
350
350
350
350

None
None
None
None
None
None
None
None
See "Order" be.Low
None
None
None
See "Order
See "Order"
See "Order
See 0rder
None
See Order"

3413538
3413539
3414668
3414669
3414670
3414671
3414672
3414673
3414674
J414675
3414676
3414671
3414686
3414687
3414688
3414689
3414690
3414691

$

TOTAL

~5,890

350

350
350
264
350

350
350
264
214
264
264
350
357

1690

ii

11

11

11

11

Order Ettectua ting Partial Settlement. (CENT 90-143)
Citation No. 3414674 is modif~edto change paragraph 11
thereo:t pertainng to "Negligence"· from "Moderate" to None.
Ci c.a tion No. 3414686 is modi tied. to change p~ragra.ph 11 t,hereof
pertaining to "Negligence" from "Moderate"·· to "None.
Ci ta ti on
'No. 3414687 is moditied to chang.e paragraph 10 A thereo.t pertaining to "Gravity" from "Reasonably Likel,Y". to "Unlikely"; to
change paragraph 11 thereof pertaining to "Neg.Ligence" trom "Moderate" to "None"; and to ~elete the "Significant and Substantial"
designation contained in paragraph 10 C . thereof.
11

11

11

Citation No. 3414688 is modified to change paragraph 11
thereof pertaining to "Negligence" from "Moderate" to "None."
Citation No. 3414689 is modified to change paragraph 11
thereof pertaining to "Negligence" froin "Moderate" to "None."
Citation No. 3414691 is,·modified to change paragraph 11
thereof pertaining to "Negligence" from "Moderate" to "Low."
Respondent, if it bas not previously done so, within :rn days
trom the date hereof, SHALL PAY to the Secretary of Labor the
total sum ot $5,890.00 as and for the civil penalties above
assessed in this docket pursuant to their settlemen,t agreement.
Penalties for the two remaining Citations .in this docket, Nos.
3413540 and 3414683 will be determined separately and subsequently herein.
·
DOCKET NO. CENT 90-144
This docket contains four Citations~· three of which were
settled at the hearing as reflected belowe The remaining Citation, No 3414692, involves an alleged intraction of 30 C.F.R.
§ 770701 and is discussed in the subsequent section entitled
11
Three Grounding Citations. 11

The Partial Settlement

As noted/i' three ot the four Citations in this docket were
settled at hearing. (I-Te lOS)o Pursuant thereto, Citation No.
3414693 and Citation No. 3414694 are both to be modified to
change paragraph 11 to show the degree ot negligence involved in
the viola ti on to be nLow" rather than "Moderate" and the penalty
for each is to be reduced from $350 to $192. As to Citation No.
3414698, there are no mod1t1cations and the penalty concurred in
by both parties is $259.
This agreement was approved from the
bench and such approval is here. AJrFIRMBD.

1691

Order Effectuating Partial Settlement (CENT 90-144)
Citations numbered 3414693 and 3414694 are modified as
agreed to by the parties and reflected above, and Respondent
SHALL PAY to the Secretary of Labor within 30 days from the
date of this decision the total sum ot $E>43.UO as and tor the
civil penalties agreed to. The penalty for Citation No. 3414692
will be assessed separately subsequently herein.
THREE "GROUNDING" CITATIONS

These three Citations, each in a different docket as noted
above, all originally involved alleged "Significant and Substantial" infractions of the standard contained in 3U C.F.R. § 77.701
pertaining to "Grounding" which provides:
Grounding metaliic trames, casings, and other
enclosures of electric equipment.

Metallic frames, casings, and other enclosures of electric equipment. that can become
"alive" through tailure of insulation or by
cont.act with energized parts shall be grounded
by methods app~oved by an authorized representative of the Secretary.
Evidence tor these three Citations was received separately
and appears in different parts of the transcripto The parties
tipulated that the evidence introduced with respect to the Citation in Docket No. CENT 9U-l6& (Which was tried first), insofar
as relevant, is to be incorporated by re~erence into the record
for the other two Citations in dockets numbered CENT 90-143 and
CENT 90-144, respectivelyv and vice versao (I-To 107-lOBu
!I=T.29)c 1

~~

l

The hearing was held on two days, May 13 and May 14,
1991 o For each of the two days of hearing there is a separate
transcript beginning with page 1. Accordingly, transcript
citations will be prefaced with "I and "II" ±or May 13 and 14,
respectively.
11

1692

Citation No. 3414864 (Docket No. CENT 90-166)
This Citation, issued by MSHA Inspector Larry w. Ramey during an AAA (regular) inspection on May 16, 1990, charges Respondent as follows:
A ground was not provided tor the energized
General Electric Toast-Oven located in the
warehouse. This toaster was 110 ~c. The
outer housing ot the toaster was constructed
ot Metallic. There was no external ground
observed for the toaster. This toaster was
equipped with a 16/2 cable.
This appliance (I-T. 33) was located on a tormica-topped
metal table sitting in an eating area in a warehouse with a
concrete floor. As charged in the Citation, it had no external
ground, had a metal housing,,.and was equipped with a size 16 cord
(tour feet long> with two conductors. <I-T. 24-26, 33, 46).
Inspector Ramey felt that, in terms of the "hazard" involved, the warehouse was unlike a residential dwelling since it
was constructed ot steel and had concrete tloors, which he said
was "a good conductor of electricity." CI-T. 21:n. The Inspector
believed that the toaster would have been used on every shift,
five to seven days a week, by miners wearing steel-toed shoes.
He felt that people could become the "ground" themselves, it
"something happened to the internal wiring" and the insulation
tailed and a person walked up and touched it. He knew of no specific instance where such toasters were involved in such an occurrenceo (I-To 28-29)0 In his opinion, a shock injury occur;;: ing :trom such event could reasonably be expected to result in
ost worJ{ days 0 and he pointed out that electrical shock could
cause even electrocution and heart attacks. (I-T. 29, 3U). He
was of the opinion that Respondent was "moderately negligent"
since the forenan should have been aware of the toaster and because he felt the toaster was "electrical equipment" which was
subject to a monthly 11 electrical equipment" check. He believed
t.he area in question would not have .been "hosed down" for cleaning purposes 0 but would have been mopped. He also speculated
l:ha t the toaster would have been used more frequently than one in
the average household." (I-T. 38).
Like the other two appliances (Proctor-Silex Toaster and
portable heater> involved in the related grounding Citations,
this G.E. toaster was U.L. approved. It was not in any way
damaged. (I-T. 45). According to Terrance D. Dinkel, an electrical engineer with MSHA's Safety and Health Technology Center

1693

in Denver, Colorado, in order tor a toaster to become hazardous
it would "have to develop a fault in it."
(I-T. 55).
He was
unable to express an opinion as to the likelihood of an accident
occurring. , (I-T. 58, 61). He knew of one fatality trom a miner
using a power tool, but none involving a toaster.
(I-T. 64-65).
The National Electrical Code (NEC) provides that such a
toaster can be used in areas which are not damp or wet.
CI-T.
54-55).
Contrary to the somewhat speculative tenor of Petitioner's
witnesses, Respondent established that ,only three warehousemen
used the toaster.
(I-T. 70).
Respondent also established that
(1) from its inquiry to Black & Decker, G.E.'s small appliance
division, there had been no instances of product liability for
toaster ovens (I-T. 70-71) and (2) it had not had, in the prior
13 years, any employee injuries tram an appliance.
Respondent's expert witness, Lynn Byers, a master electrician, testified that the fact of U.L. approval indicates an appliance complies with the N.E.C.
CI-T. 73-77). He also indicated, contrary to Mr. Dinkel, that there is a significant ditf erence between a power tool, which is motor driven and can be
overloaded, and kitchen 11 fixed resistance" appliances which are
not subject to overload abuse.
CI-T. 77). Also, contrary to
Petitioner's witnesses, he convincingly testified concerning the
significance of any differences between residential environments and the warehouse environment:
Qo

Much was made ot the differences between the
residential environment and warehouse environment in a surface coal mine"
Do you see any
basis for such a distinction?

Ao

I think two of them are alike in some respects
and different in others. As far as National
Electric Code is concerned# indoor locations
are the same whether they're in a coal mine or
residenceo
They're not damp or wet locations.
Furtherv I believe at the strip mine, you
know, we're talking about certified electricians
under direct supervision of management performing
the different tasks and work. We're talking
about adults in the mine rather than kids and
e~derly people, and maybe people that are incapacitated using these appliances.
The people at
the mine are also trained in electrical hazards
and avoidance as well. We're not--I think it's

1694

unfair to compare general public with qualified
trained miners who are in good health, and so
torth.
CI-T. 77-78).
(Emphasis supplied).
Respondent also established that the G.E. toaster oven in.
question sits on a credenza on the exterior portion of a small
ottice (of drywall construction) in the southeast corner of the
two 50- by 100-±oot warehouse.
(I-T. 69-70).
In response to an inquiry from Respondent (Ex. P-3; II-T.
405), concerning grounding ot the toasters, Paul Duke, Assistant
to the Vice President, Electrical Division, Underwriters Laboratories, Inc., gave an incisive and probative analysis of the situation (Ex. R-5; I-T. 80-82), which is in part quoted here:
Underwriters Laboratories Listed electrical
equipment tor ordinary locations has been evaluated for use in a~~ordance with the National
Electrical Code and to determine that the design ot such equipment provides for the reduction of the risk of injury to life and property.
Grounding of equipment connected by cord-andplug is covered in Section ~50-45 ot the NEC
and is retlected in our Standards.
Electric toasters are not among the appliances
in residential occupancies required to be
grounded by Section 250-45(c). Additionally,
in other than residential occupancies, cordand-plug connected appliances not used in damp
or wet locations or by persons standing on the
ground or on metal floors or working inside metal tanks are not required to be grounded.
Please
refer to Section 250-45(d), item (5). UL considers Listed electric toasters, although not
grounded, to comply with the NEC whether used in
residential occupancy or the type of premises
you described which I understand is a dry location o
Modifications to toasters to replace the power
cord with a grounding type cord, which you indicate is required by the inspector, can introduce risks ot electric shock or fire . . . •

*

*

1695

*

All ot the foregoing and possibly other concerns,
depending on the toaster construction, lead to the
conclusion that risks of fire or electric shock
may be introduced when field moditications are
made to a Listed product.

UL cannot comment on MSHA regulations other than
it appears subparagraph 77.701 is intended to
apply to mining equipment, tools, and appliances
used in the mining operation and not to appliances used in an office-type dry location.
(Emphasis added).
Citation No. 3413540 (Docket No. CENT 90-143)
This Citation, issued on April 2, 1990, by Inspector Ramey,
charges tl1e following violative condition:
The 110 AC electrical wall heater located in the
Radio Repair shop was not provided with a ground.
The heater was equipped with a 16/2 electrical
cable. No external ground was provided.
This
heater was energized when this condition was
observed.
The outer frame was metal.
Petitioner points out with respect to this Citation 2 that
the fact situation and expert testimony is essentially the same
as that in Docket CENT 90-166 p with the exception tl1a t this Ci taion refers to a 110 AoCo electrical wall heater located in the
:radio repair shop Ca small room) in close proximity to one radio
repairman (I-To 109)" Petitioner's evidence indicates that the
repairman works at a metal desk and the 8 x 10 room has a concrete flooro
The ungrounded heater was about one toot by four
teet in size and the inspector thought it was mounted on a wallo
I-T" 113-114)
Inspector Ramey thought that electrical shock
would result in a 0'lost work 0ays 11 type ot injury a
(I-T. 115) o
The general conclusion ot Mro Dinkel was that if the heater was
used in an area with a 0' conductive" concrete floor, it was
required to be groundedo
{I-Ta 116v 119) o

2

Petitioner's Brief, page 3.

1696

Respondent's evidence diifered from Petitioner's--and is
credited--in that it was shown that the repairman sat at a workbench with a formica top and that the U.L. approved heater sat on
a stool about three feet high and was not mounted on the wall.
Merrit D. Redick, Chief Electrical Engineer tor BHP-Utah
International, testifying for Respondent, gave the following
testimony which was convincing and also is credited:
Q.

Mr. Redick .•• is there any reason to draw a distinction between this portable heater and the
toaster oven ••• ?

A.

I think it would be similar in the sense as long
as it was a U.L. approved appliance.
There's now
been a lot of research done before it was given
approval, and I think very minimal chance of picking up a shock off of it. We all have the same
type heaters_ arounct'·our kids at home.

*

*

*

*

*

A• • • • I think U.L. agrees that U.L. approved equipment loses its approval when you tear into it and
modify it. Unless you're very careful and knowledgeable about what you're doing, you can increase
the risk of being shocked off that piece of
equipment.
Qo

o•• How would you characterize the chances of getting seriously injured by shock from o o o this
portable heater ooo ?

It s very renoteu in my opiniono Anything thatus
been researched by U.L. and put out to the general
public in the United States, is really no risk at
all.
CI-To 123-124)0
~itation

Noo 3414692 (Docket Noe CENT 90-144}

Inspector Ramey issued this citation on April 16u 1990u
charging as followsg
The energized 110-volt AC Proctor-Silex toaster oven located in the control room of the new
plant was not provided with a ground.
This
toaster was equipped with a 16/2 electical
cable.
There was no external ground wire
provided.
The outer housing of the toaster
was constructed of metallic.

1697

It is noted that Petitioner MSHA has moditied this citation
to delete the "Significant and Substantial" designation thereon,
and also that Petitioner agrees that the tact situation and expert testimony with respect to this Citation is essentially the
same as that in Docket No. CENT 90-166 except that a "ProctorSilex toaster resting on a formica table on a tiled floor" is
involved in this Citation~ 3
Petitioner's evidence (which is not entirely accurate) was
to the eft ect that this undamaged ( II-T. 7) toaster oven was sitting on a metal table in an 8- x 24-foot control room having a
concrete floor near a metal retrigerator. 4 The floor, according
to Inspector Ra.mey, would not have been cleaned by washing down
with a hose, but rather it would have been "dry" mopped.
(I I-T.
7-8, 16). The inspector again "speculated" that the toaster oven
would have been used on every shift to warm food.
CII-T. 8-9).
The area the toaster oven was in was essentially a dry environment.
(II-T. l6) 5
Respondent established--in some contradiction to Petitioner's showing--that the table in question had a formica top and
that the floor of the control room was overlaid.with green asphalt commercial tile.
6
DISCUSSION, ADDITIONAL FINDINGS, AND CONCLUSIONS
THREE GROUNDING CITATIONS
Respondent's fundamental position with respect to these
three Citations is found meritoriouso

3

Petitioner's Briefu page 3o

According to MSHA 9 s expert, Mr. Dinkel, the presence of
the refrigerator would nprobablyn not add to the situation.
There was no sinku and attendant waterv in the areao
(II-To 8)0
5
MSHA did not establish that any of the three areas involved in the three Citations were "damp" or "wet."

6
At this juncture in evidence-taking, Petitioner modified
the Citation on the record to delete the "Significant and Substantial" designation.
CII-T. 22-23).

1698

A safety standard must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and it
"cannot be so incomplete, vague, indefinite, or uncertain that
men of common intelligence must necessarily guess at its mean-.
ing and differ as to its application." (Emphasis added). 7
30 C.F.R. § 77.701, as Respondent contends, is sufficiently
indefinite and unclear in its application here as to cause disagreement among Petitioner's own hierarchy CI-T. 82-83; Exs.
R-lA, R-7), as well as failing to communicate that it could be
intended to apply to small toaster-ovens and a small portable
heater manufactured for use without a grounding conductor in the
cord and plug. 8
MSHA's own Program Policy Manual, at Section 77.702 thereof
(Ex. R-7), appears to exempt U.L. approved cord-and-plug appliances such as the toaster ovens and heater involved here. It
states:
Portable tools and appliances that are protected
by approved systems ot double insulation 9, or
its equivalent, 10 need not be grounded.
(Emphasis supplied)&

7

Alabama By-Products Corporation, 4 FMSHRC 2128 (December

1982)0
8
Petitioner did not establish that the toaster-ovens and
the heater were used for any mining-related purpose, or for any
purpose other than what one might expect them to be used for in
the domestic market and, as noted elsewhere in this decision,
while showing the three appliances were in areas with concrete
floorsq Petitioner did not establish that such areas were damp or
wet or that there was really much of a difference between these
areas and places in homes where such appliances would be used to
prepare food or to heat a room.
9

Although a portion of the record (II-T. 27-29p 39-41)
was devoted to discussion of this subject, Respondent does not
con tend that any of the three subject appliances are covered by
this "double insulation" exemption. (I I-T. 41) •
10 Respondent does however contend and I conclude that U.L.
approval is tantamount to "equivalent" protection.
CII-T.
41-42).

1699

As argued by Respondent, I conclude trom reliable evidence
record that the U.L. listing is in effect a certificate that
the three listed appliances have means of shock protection equivalent to double insulation. CI-T. 90-92, 961 II-T. 27-28, 42,
~f

4 4 ~ Ex • R- 5 ) •

Further, MSHA's Program Policy Manual Cat Section 701 thereof, Ex. R-lA) appears to give some idea of the type o:t "electric
equipment" 30 C.F.R. § 77.701 is intended to encompass, i.e.,
"Certain movable electrical equipment, e.g., rail-mounted and
pivoting coal stackers, traveling shop cranes on track rails,
small traveling hoists on I beams, etc. 11 The types of clear-cut
mining equipment mentioned as examples by MSHA as a minimum
delivers considerable weight to Respondent's contention that the
subject standard is unenforceably vague when applied to the three
appliances in question.
Conclusions
1. The safety standard, 30 C.F.R. § 77.701, in its application to the three subject appliances, is unenforceably vague in
that a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would not have
recognized the specific prohibition or requirement of the
standard. 11

2. Applying the "reasonably prudent person" test to the
subject standard, such a person would not consider the term
"electric equipment" used in 30 C.F.R. § 77.701 to apply to the
three U.Lo approved appliances in question and have recognized a
I'."equirement to modify each appliance by grounding it externally o
3
The three appliances involved--the two toasters and the
portable heater--are not "electric equipment" as that term is
used in 30 C.F.R. § 77.701.
o

ORDER

Citations numbered 3414864u 3413540u and 3414692 are
VACATEDo

11 See Canon Coal Co., 9 FMSHRC 667, 668 (April 1987)1
Lanham Coal Company, Inc., 13 FMSHRC ~~(September 3, 1991).

1700

THE nHIGHWALL" CITATION (DOCKET NO. CENT 90-1431
CITATION NO. 3414683
This Citation, issued by MSH~ Inspector Larry w. Ramey at
9:10 a.m. on April 11, 1990, charges Respondent with a violation
of 30 C.F.R. § 77.1000 as follows:
Ttle operator was not complying with the approved
ground control plan. Loose hazardous material
was observed, loose and hanging over the top of
the higbwall. This condition was located at
North Pinon Marker 600 East of Pinon 3. The
loose overhanging material revealed large cracks
on both sides ot the material. ~he cracks appeared to be from 1 to l 1; 2 feet in width.
The loose overhanging mass appeared to be 20
teet in height by 18 feet in width. Void could
be observed behind the overhanging material.
The roadway ieading to the DRE 82 dragline was
located under this overhanging material. Tire
marks showed that traffic vehicles traveled to
within 10 feet of the highwall. This overhanging material appeared to hang out. from the highwall bank-slope approximately 4 to 6 feet thick.
The Citation (paragraphs 16, 17, and 18) indicates that the
condition was timely abated by 10:20 a.m. by the following action g 11 The opera tor installed a 3:G-inch high dirt barrier in the
travel road to prevent tra.E:Eic from driving through this area o 11
77.1000 pertaining to "Ground Control" provides:
Each operator shall establish and follow a
ground plan for the safe control of all highwalls, pits, and spoil banks to be developed
after June 30, 1971 5 which shall be consistent
with prudent engineering design and will insure
safe working conditions.
The mining methods
employed by the opera tor shall be selected to
insure highwall and spoil bank stabilityo
Petitioner contends that·Respondent did not comply with paragraph 6 b of its Ground Control Plan (Ex. P-4) which requires
that "Unstable highwall and banks shall be taken down and other
recognized unsafe ground conditions shall be corrected promptly,
or such area shall be P.osted. 11

1701

In his testimony, after confirming the description of the
violative conditions contained in the Citation, Inspector Ramey
described such as "overnanging roe~" Cil-T",. 51) "rock that was
leaning out" (II-T. 4~) and "outcropping" (II-T. 53) separated
trom the highwall by a void (II-T. 49). He said there were large
cracks around this rock, which he estimated to be 20 teet in
height ai1d 18 teet in width CII•T. 52-53, 61). He also described
the iristability thereof:
••• wnen you look at the other section, the highwa.11, then it• s stable. It's all bonded together.
This one section here has pulled loose from the
main highwall and my opinion of it, it was ready
to fall.
( II-T. 54).

The loose overhanging material, i.e., rock outcropping, was
created after blastinq a month before the Citation was issued.
CII-T. 66-67, 68). The area was not posted. Below the loose
rock material was a bench approximateJ.y 120 feet wide. Tire
marks on the roadway below the unstable outcropping indicated
that vehicles had been traveling in the exposed area and several
miners were exposed to tl1e hazard that the rock would fall.
CII-T. 54-55). The tiremarks were within 10 feet of the hi9hwa11. <II-T. 54). The outcropping (depicted in Exs. P-5 and
P-6) was approximately 50 teet high (II-T. 55) and it was vividly
described by the Inspector as having "pulled loose from the main
highwall" and as being "a large chunk of rock ••• that is cracked
on both sides, behind even. the bottom." (II-T. 58-59).
Respon.dent 9 S stripping foreman 11 George Francisv was ot the
opinion that the condition was not a hazard since (a) it had been
there a month and had not fallen or crumbled, (b) the material
was •1 1aid back"--not at a vertical angle--and (c) it was sitting
on solid rock. (II-T. 67, 68, 6!:1-71). However, there had previously been a failure at a San Juan mine of a highwall which
Respondent also considered stable. CII-To 72u 75-76)0
The Inspector;s description of the violative conditionQ and
his opinion that the outcropping was unstable and ready to fall
because of the cracks and void, are corroborated by photographic
evidence submitted by Petitioner in Exhibits P-5 and P-6. There
is no reason to discount his testimony and opinion in this matter
It is concluded that the infraction of Respondent's ground control plan did occur in that an unstable area of highwail did
exist and had not been taken down tor one month and the area was
not posted. Infraction of such a plan is enforceable as a safety
standard. Jim Walters Resources, Inc., 9 FMSHRC 903 (May 1987).

1702

0

Since the violative condition existed for a month in an area
where the foreman would have' travelecf and been aware of such
CII-T. 55), it is conciuded that the violation resulted trom
Respondent's negligence:
·
The issuing inspect.or's opiniqn' that this was a "Significant
and Substantial 11 violation i's borne out b':l the reliable evidence
of record. A violation is properly designated"Significant and
Substantial 11 < "S&S") 11 if, based upon the particular facts surrounding the viola ti on there exists a reasonable likelihood that
the hazard contributed to will result i~ an injury or illness of
a reasonably serious nature. 11 Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (April l98lf •..
In Mathies Coal Co., 6 FMSHRC 1 (1984), the Commission
listed four elements of proof for S&S vio~at~ons:
In order to establish that a violation of a mandatory standard is signi.:f icant ·and substantial
under Nationl Gy:i;)'sum the Secretary of Labor must
prove:
Cl} The underlying violation of a mandatory safety standard: ( 2) a ·discrete safety hazard--tha t is, a measure of danger to safety-contributed to by the vi:o1a.tion; ( 3 > a reasonable likelihood that the hazard contributed to
will result in an injuryi and (4) a· reasonable
likelihood that the irtjuty in question wfll be
of a reasonably serious nature. ·
·

In United States Steel Mining :Company, Inc., 7 FMSHRC 1125 11
1129 \1985) 8 the Commission expounded thereon as follows:
We have explained further that the thir'd element

of the Mathies formula 11 requires that the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in
which there is an inj~ry." U.S. Steel Mining Co.,
6 FMSHRC 1834 Q 1836 (August 1984}. We have e:nphasi zed that, in accordance with the language
of Section 104Cd) Cl)/} it is the .contribution of
a viola ti on to the cause and effect of a hazard
that must be signifi'cant and substantial. U.S.
Steel Mining Company, Inc., 6 .FMSHRC 1573, 15741575 (July 1~84).

1703

It has been previously found that a violation occurred.
On
the basis of prior findings, I also conclude that a measure ot
danger to satety was contributed to by the violation and there
existed a reasonable likelihood that the hazard contributed to
would result in a serious injury or .tatality.
Thus, not only was
the Inspector's opinion as to the "significant and substantial"
nature of the violation CT. 54-55) left largely unrebutted, but
the evidence demonstrates that there was exposure of several
miners to the hazardous conditions present which would have
resulted in serious injury.
CII-T. 54-55).
Thus, the Inspector testified:
I telt if the rock did fall that there's definitely going to be an injury because of that
mass of rock fallin,g . . on C1 vehicle. .A.nd if you-in the body,of the Citatipn, now, I estimate
the rock to be 20 feet in length, so it it's
driving within ten foot ot the highwall.
It
the rock fell, it's going to come in contact
with the vehicle, and/or person, or persons,
that could be working in the highwall area.
CII-T. 55). 12
The Inspector's opii'lion that the relatively large rock outcropping could fall "at any time" CII-T. 62); coupled with the
visible cracks and looseness ot the rock and the height it would
fall are all factors which confirm that the element of reasonable
likelihood of such events occurring was established by MSHAo
This combined with the exposure of miners (not denied by Respondent) and the seriousness of injuries which reasonably would ensue
trom such occurrence is sufficient to establish Petitioner's burden of proof as to the four prerequisite elements of the Mathies
formulau suprao
Consequentlyv it is concluded that the violation
in question was ~significant and substantial," as well as other
wise serious in nature. Citation No. 3414683 is AFFIRMED in
all respects,,

12

See also II-T. 62-63.

1704

Penalty Assessment for Citation No. 3414683
Respondent San Juan Coal Company is a Delaware corporation
and is the owner-opera tor of the San Juan Mine and Pit ( 60 employees) and the La Plata mine (18 employees) which respectively
mine 2 million tons and between 1.1 million and 2 million tons
annually.
(I-T. 5). The controlling entity produces over 10
million tons of coal annually and is found to be a large mine
operator. During the 24-month period preceding the occurrence of
the violation, 68 prior violations occurred at the San Juan Mine
and Pit and 20 occurred at the La Plata mine.
(See I-T. S-61
Exs. P-1 and P-2). 13 Assessment of penalties will not adversely
affect Respondent's ability to continue in business. Upon notification of the violation, Respondent proceeded in good faith to
achieve rapid compliance with the standards cited.
The remaining
statutory penalty assessment criteria of negligence and gravity
have been previously determined. A penalty of $600 is found
appropriate and is here ASSESSED.
ORDER

(Citation No. 3414683)

Respondent SHALL PAY to tl1e Secretary of Labor the sum
of $600 within 30 days from the date of this decision.
FINAL ORDER
The modifications of various Citations are reflected in the
separate sections for each docket herein
In the section of this
decision entitled 01 Three Grounding Citations, 01 Citations numbered
3414864, 3413540r and 3414692 have been VACATEDo Citation
Noo 3414683 has been AFFIRMEDo
o

13 The transcript incorrectly shows the figures for number
employees as being the number of previous violationso
The
11
u• employee
numbers indicated were taken trom my notes taken at
hearing.
The figures for history of previous violations were
taken from Exhibits P-1 and P-2.
The figures for the two categories are similar and the changes have no bearing on penalty
assessment.

1705

Likewise, all penalties assessed tor Citations involved in
the tour subject dockets are directed for payment at the end of
each of the various sections.
The total amount for all penalties
in these four dockets is ~7,280.00, and Respondent should make
payment as indicated.

,J7.· .,.

__,, .
1-,-.,-.

.

. Y,...:·· ;r.<•
.-:::-. ./
I' •. 'c.
• ?<',... ~
. . (..,,,.?"
/ . ~T,._
'

i'

~. ;; ..
7Michael A. Lasher, Jr.
Administrative Law Judge
.r'

,;"

•

"'

Distribution~

Michael Ho OlveraP Esqop Office of the SolicitorQ UoSo Department
of Labor 525 Griffin Streetu Suite 50lu Dallasu TX 75202
iCertified Mail)
Donald Lo Hurnphreysu Esq.u SAN JUAN COAL COMPANYu 550 California
Street, San Francisco, CA 94104
(Certified Mail)

ek

1706

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

OCT 211991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
M~RTIN L. RICH~RDSON,
Complainant

.

DISCRIMINATION PROCEEDING
Docket No. WEST 91-143-DM
MD 90-19
Mine I.D. No. 26-02161

v.

Docket No. WEST 91-262-DM
WE ME 90-19
F.K.C. Portable

F.K.C., INCORPORATED,
Respondent

(Consolidated)
ORDER OF DISMISSAL

Beforeg

Judge Morris

These cases arose under the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801, et~

On Dece~ber 26, 1990p the Secretary of Labor filed an apication for reinstatement on behalf of Complainantv pursuant
to Section 105(c) and Commission Rule 44.,29 C.F.F.L § 2700.44u
s amended.
On January 15, 1991, an order of temporary reinstatement was
issued.

On April 9 1991 8 in the case docketed as WEST 91-262-DM,
the Secretary filed a complaint of discrimintation on behalf of
Complainantu pursuant to Section 105(c)(2) of the Mine Act.
Complainant alleged Respondent violated Section l05(C)(l) of the
Actc
In its answer filed on May 13u 1991, Respondent denied the
Commission had jurisdiction in this matter. Further, Respondent
asserted its activities did not render it subject to the Mine Act.
In addition, Respondent asserted Complainant was not a miner
subject to the Act.
On June 5, 1991, Docket Nos. WEST 91-143-DM and WEST
were consolidated and scheduled for a hearing on
July 18, 1991.
~l-262-DM

1707

On June 17, 1991, the hearing date was canceled and the case
was reset to begin on October 16, 1991.
On October 15, 1991, the Secretary moved to dismiss the proceedings. As a grounds therefor, the Secretary stated that "at
the time of the alleged discriminatory act, the Complainant was
not a. 'miner,' as detined by Section 3(9) 11 • • • of the Act.
In her motion the Secretary further alleged that "at the
time ot the alleged discriminatory act, neither F.K.C., Inc., nor
F.K.C. Sand and Gravel Products, Inc., were engaged in the type
of activity that would classity the companies as operators under

Section 3(d), 30 u.s.c. S 802(d) of the Mine Act. In addition,
neither company was engaged in activity as a mine, as defined in
Section 3(h)(l) or Ci>, 30 u.s.c. S 802(h)(l) or (2) ot the Mine
Act.
For good cause shown, tffe motion to dismiss is GRANTED
and the cases are DISMISSED without prejudice •

...,,,,,~~~
orris
rative Law Judge

Distribution:

ot the Solicitoru u.s,, Department of
Laboru 4015 Wilson Boulevard, Arlingtonu VA 22203 (Certified
Mail)

Lisa lL Grayu Esqao O:t:fice

Bill Co Hammeru Esqo 0 2300 Paseo del Prado #B202 9 Las Vegas, NV
8~102
(Certified Mail)
Mro Martin L. Richardson, 2316 Statz Street, North Las Vegas, NV
89030

(Certified Mail)

ek.

1708

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

OCT 211991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

... CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-266
. A.C.
No. 46-05972-03531
No. 8 Mine

PIGEON BRANCH COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT

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 $4,400 to $2,200 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.
and

WHEREFORE, the motion for approval of settlement is GRANTEDu
ORDERED that Respondent
a penalty of $2,200 within

O days of this ordero

~

Avram Weisberger
Administrative Law Judge
Distribution~

Charles M. Jackson, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)
Ms. Ruby H. Cyphers, Bookkeeper, Pigeon Branch Coal Company,
Inc., 106 Suffolk Avenue, Richlands, VA 24641 (Certified Mail)
Mr. William T. Heflin, Pigeon Branch Coal Company, Box 364, North
Tazewell, VA 24630 (Certified Mail}
nb

1709

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

OCT 2 4 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

LANHAM COAL COMPANY, INC.,
Respondent

..
.
.•

CIVIL PENALTY PROCEEDING
Docket No. KENT 89-186
A. C. No. 15-13428-03508
Lanham No. l Mine

DECISION ON REMAND
Before:

Judge Broderick

On September 3, 1991, the Review Commission remanded this
case to me to "determine, through application of the reasonably
prudent person test, whether Lanham had fair notice that
section 77.1710(g) required the use of safety belts or lines
under the circumstances of this case. 11 13 FMSHRC _ _
At my
request, both parties filed briefs addressed to the issue.
Neither wished to submit further evidence.
I

Lanham was the owner and operator of a surf ace coal mine in
Daviess Countyu Kentuckyo It contracted with Caney creek
Trucking company to haul coal from the mine to Lanham's coal
dock. After the coal was loaded into the trucks, Caney's drivers
covered the load with a tarp in a parking lot on mine property.
Safety belts and lines were not provided or worn by the drivers
while tarping their trucks. On December 29 5 1988 5 Charles
Daughertyu the owner of Caney and a truck driveru fell from his
truck approximately 10 feet to the ground while tarping his
truck. He was not wearing a safety belt or line. Daugherty was
taken to the hospital and subsequently died from reasons not
related to the fall. MSHA issued a citation charging a violation
of 30 C.F.R. § 77.1710(g)o

Prior to the accident, neither Lanham nor the MSHA inspector
who issued the citation considered the cited standard applicable
to the tarping of trucks. The inspector had never previously
cited the practice, and had never observed safety belts or line

1710

used in such situations in more than 40 years of mining
experience. MSHA had no standards or guidelines that covered the
practice, and Lanham had no specific notice that the practice
violated the standard.
II

30 C.F.R. § 77.1710 provides in part that surface coal mine
employees shall be required to wear "safety belts and lines where
there is a danger of falling." The regulation is on its face
simple and straightforward. The facts in this case very clearly
show that there was a danger of falling:
in fqct a miner fell.
III

In the Alabama By-Products case, 3 FMSHRC 2.128 (1982), the
Commission considered the regulation requiring ~hat machinery and
equipment be maintained in safe operating condition. It
concluded that a reasonably prudent person familiar with the
factual circumstances_ including facts peculiar to the mining
industry would recognize that the cited equipment.was in an
unsafe condition. In United States Steel Corporation, 5 FMSHRC 3
(1983) the Commission held that the reasonably prudent person
standard applies to the berm regulation: the issue is whether
the operator's berms or guards measure up to the kind that a
reasonably prudent person would provide.· under the circumstances.
In Great Western Electric Company, 5 FMSHRC .840 (1983), the
Commission in considering the same regulation as in the instant
case, held that "the applicability of the standard [should be
determined] in terms of whether an informed, reasonably prudent
person would recognize a danger of falling warranting the wearing
of safety belts and lineso 11 5 FMSHRC 8420 In November, 1990 1
the Commission phrased the test as "whether a reasonably prudent
person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific
prohibition of the standard.vu Ideal Cement Company,
12 FMSHRC 2409, 2410 (1990)- [Emphasis added].
The Great Western Electric Company test seemed to be whether
reasonably prudent person would recognize that the factual
circumstances created the hazard which the regulation attempted
to prevento The Ideal Cement testu as I read it, involved a
subtle change:
it is not whether the reasonably prudent person
would recognize that the facts create the hazard, for example
whether such a person would recognize that tarping a truck by
climbing on the load of coal creates a danger of falling, but
whether that person would recognize the specific prohibition of
the standard,. that is, whether such a person would have
recognized that attaching a tarp to a truck without utilizing
safety belts and lines was prohibited by the regulation. The
~he

1711

change in the test is evident from the terms of the remand: I am
required to determine, through application of the reasonably
prudent person test, whether Lanham had fair notice that
section 77.1710(g) required the use of safety belts or lines
under the circumstances of this case.
IV

The law of Kentucky requires that a loaded coal truck be
covered with a tarp before the truck is operated on State
highways. In order to affix a tarp, the driver is required to
mount the back of the loaded truck, which is approximately 8 feet
wide, and unroll the tarp while walking backwards on the load of
coal. The load is normally uneven and higher in the center than
on the sides. In the instant case, it was about 10 feet from the
ground to the top of the load.
The tarping of trucks is, and has been for many years, a
daily occurrence in the coal industry. The MSHA inspectors who
testified in this case had never previously cited the practice
involved here. Neither had ever observed coal trucks provided
with belts or lines for persons putting on a tarp or removing it
from a loaded coal truck. The inspector who issued the citation
did not consider the cited practice a violation of the standard
before he issued the citation contested here. The evidence
establishes that the practice of using safety belts and lines
while tarping trucks is rarely or never followed in the coal
industry. It also establishes that prior to this case, the
practice was rarely or never cited by MSHA.
I think it is clear that a reasonably prudent person would
recognize that the activity cited here is hazardous, i.e., it
creates a danger of falling. On the other handu in view of the
evidence concerning the practice in the industry and in MSHAvs
enforcement historyu it is equally clear that such a person would
not have recognized the specific requirement of the standard,
i.e., that tarping a truck requires safety belts and lines.

Following Commission precedent in its most recent decision,
Ideal Cement Companyv and the terms of the remand, I conclude
that the evidence does not establish that Lanham violated
30 C.F.R. § 77.1710(g) in failing to require safety belts and
lines for miners engaged in the tarping of loaded coal trucks.

1712

ORDER
Based upon the above findings of fact and conclusions of
law, IT IS ORDERED:
1.

Citation 3297324 is VACATED.

2.

This civil penalty proceeding is DISMISSED.

ltt.A'tL-~.f A4Jvvr_ft4·z ~/l

~-James A. Broderick

Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U. s. Department
of Labor, 2002 Richard Jones Road, Suite B-102, Nashville, TN
37215 (Certified Mail)
Flem Gordon, Esq., Gordon & Gordon, P.S.C., 1500 Frederica
Street, P. o. Box 390, Owensboro, KY 42302 (Certified Mail)
dcp

1713

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

OCT 2 4 1991
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
JIMMIE L. CALLAN
complainant
v.

Docket No. SE 92-1-DM
SE-MD-91-03
Beers Pit

S & S MATERIAL, INC.,
Respondent

ORDER OF DISMISSAL
.1efore:

Judge Weisberger

The Secretary's Motion to Withdraw Appication for Temporary
Reinstatement is GRANTED based on the assertions in the Motion.
It is ORDERED that this

cas/l:SM;::_

Avram Weisberger
Administrative Law Judge
Distribution~

Lisa A. Gray, Esq., Office of the Solicitor, U. s. Department of
Labor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203
(Certified Mail)
John Hargrove, Esq., 2001 Park Place Tower, Suite 1400
Birmingham, AL 35203 (Certified Mail)
Jimmie L. Callan, Route 1, Box 185, Jones, Alabama
(Certified Mail)
nb

1714

36749

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

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

OCT 2 8 1991

.
..:

Petitioner

v.
MOUNTAIN COAL COMPANY,
(Successor to West Elk Coal
Company, Incorporated),
Respondent

CIVIL PENALTY PROCEEDING

Docket No. WEST 90-262
A.C. No~ 05-03672-03591
Mt. Gunnison No. 1 Mine

.

DECISION
Appearances:

Susan J. Eckert1· Esq., Otfice of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner1
David M. Arnolds, Esq., ARCO, Qenver, Colorado,
tor Respondent.

Before:

Judge Cetti

This case is before me on petition for c1vi! penalty filed
by the Secretary of Labor, pursuant to Section 105(d) of the Federal Mine Safety and Hea!th Act of 1!::177,;1 ,.30 u.s.c. S 801 et !.!S.!.r
<the "Act"), charging the Mountain Coal C!o". with 'f'iola ting 30
CeFoRo ~ 75.503(a) a mandatory regulatory stand.a.rd and proposing a civil penalty for the alleged violat~ono Pursuant to notice0 the case was heard on the merits betore me at Glenwood
~prings 0 Colorado"
Helpful post-hearing briefs were filed by
both parties which I have considered a!on9 with the entire record
in making this decision,
The Regulation

The regulation cited reads as follows~
30 C.F.R. § 75.503, Permissible Electrical Face
Equipment; Maintenance

The operator ot each coal mine shall maintain
in permissible condition all electrical tace
equipment required by § 75.500, 75.501 and
75.504 to be permissible which is taken into
or used inby the last open cross-cut of any
such mine.

1715

The Citation
The citation issued to Respondent states the tollowing:
The jeftrey-type ram-car R-9 serial number
38297 and approval number 31-35-5 operating in

the 2W lN/002-0 section was not maintained in
a permissible condition in that there was a
.uus opening between the flame arrestor unit
and exhaust l unit when checked.
ISSUES

1. Whether a preponderance of the evidence established
facts that constitute a violation of 30 C.F.R. S 75.503.

2. If the cited violation is established, was it a "significant and substantial" viol~fi6n. ·
3. If a violation is established, what is the appropriate
penalty.
STIPULATIONS

The parties stipulated (Joint Exhibit l) as follows:
l. West Elk Coal Company, Inc., 2 ·1~ engaged in the mining
and selling of coal in the United States, and its mining operaations affect interstate commerce.
~o

West Elk Coal Companyu Incou

is

the owner and operator

of the Mount Gunnison #1 Mineu MSHA I.Do Noo 05-03672.
3o West Elk Coal Company, Inco, is subject to the jurisdiction ot the Federal Mine Safety and Health Act ot l':J77, 30 u.s.c.
~S 801 et ~ c Hthe Act").

l

Inspector Gutierrez on cross-examination admitted the
citation was in error in stating "exhaust" unit in describing the
location of the feeler gauge penetration in question. The correct location was between the "air intake" unit and the tlame
arrestor unito (Tr. 13)o
2
Now Mountain Coal Company, successor by merger to West
Elk Coal Company, Inc., and Beaver Creek Coal Company.

1716

i. West Elk Coal Company, Inc., is the owner and operator
ot the Mount Gunnison #1 Mine, MSHA I.D. No. 05-03672.
3. West Elk Coal company, Inc., is subject to the jurisdiction ot the Federal Mine Satety and Health Act ot 1Y77, 30 u.s.c.
S§ 801 et !.!S..!. ("the Act"> •.
4.

The Administrative Law Judge has jurisdiction in this

matter.
5.
The subject citations were properly served by a duly authorized representative 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 tor the truthfulness or relevancy ot any statements asserted
therein.
6.
The exhibits to be otf ered by Respondent and the Secretary are stipulated ro be authentic but no stipulation is made as
to their relevance or the truth of the matters asserted therein.

7.
The proposed penalty will not affect Respondent's ability to continue business.
8.
la ti on.

The operator demonstrated good faith in abating the vio-

9. West Elk Coal Company, Inc., is a large operator of a
coal mine with 564,850 tons of production in 1989.

lOo The certified copy of the MSHA Assessed Violations History accurately retlects the history ot this mine tor the two
years prior to the date of the citationo
DISCUSSION
Section 750503 states "[t]he operator of each coal mine
shall maintain in permissible condition all electric face equipment required by SS 75.5UU, 75.504, 75.504 which is taken into or
used inby the last open crosscut of any such mine." According to
the plain language ot this standard, a violation ot Section
750503 is established where 1) there is a piece of electric face
equipment~ i> the equipment is taxen into or used inby the last
crosscut~ and 3) the equipment is not maintained in permissible
condition.

1717

In this case, there is no dispute that this citation involved a piece ot electrical tace equipment being used in the working
section inby the last open crosscut. During a regular inspection, Inspector Cosme Gutierrez examined a Jettrey ram-car (a
piece of hauling equipment with electrical components and a diesel-powered engine) used to haul tresh coal being cut by a miner
from the working face. (Tr. 23-24). Gutierrez explained that
the ram-car is considered both a diesel and an electrical piece
ot tace equipment. (Tr. 25). The ram-car had been located at
the working face inby the last open crosscut before it was removed outby the active section about tour or tive crosscuts tor
inspection purposes. (Tr. 23, 40). The primary issue in this
case is whether this ram-car was being maintained in a permissible condition.
Permissibility requirements for electrical equipment are
contained in Part 18 C.F. R. and tor diesel-powered equipment in
Part 36 C.F.R. Jerry Taylor,·,·the highly qualified expert and
engineering coordinato'r tor District 9, explained permissibility
and the permissibility requirements for this ram-car. Mr. 'laylor
testified that "permissibility means that the whole machine, when
properly maintained, will not ignite a methane air mixture and/or
coal dust and/or cause a tire o± combustibles because ot an energy source contained within one o:t their explosion-proof compartments." (Tr. 117). As defined in Part 18.2, "permissible equipment" means "a completely assembled electrical machine or accessory for which a formal approval has been issued as authorized" by
MSHA. Part 36, states that d1esel-power~a.equ1pme?t must comply
with the requirements of Part 36 and have a certificate of approval to this effect issued. The Je:t::.Erey ram-car in question
was subject to the MSHA approval process and, pursuant to the
permissibllity requirementsu Jetfrey Mining Machinery Division
developed a speciric permissibility checklist for the type of
ram-car in question tor MSHA's.review. (Ex. P-3). Mr. 'laylor
explained the MSHA approval and certitication process in relation
to this type of ram-car. (Tr. 113-115) • In general, MSHA reviews the design and per:tormance o:t the equipment to insure thatq
when tunctioning as designedu the equipment will be explosion
proof within the confines o:t a methane air mixture.
The flame arrestor assembly unit is an enclosed component
attached to the air intake side of the engine. It is designed to
prevent a tlame from the engine escaping to the outside mine atmosphere at the face.
(Tr. 24). The flame arrestor consists of
a flat disc shaped wire mesh screen through which all air in the
engine intake system must pass in order to enter the engine. The
flame arrestor cools any flame from the engine before the flame
reaches the outside air where it could cause an ignition ot combustible material.

1718

The flat disc shaped wire mesh (tlame arrestor) is encircled
with a flat 1.95 inch wide solid metal flange or collar that
keeps the wire screen disc in place.
The flame arrestor collar or tlange is sandwiched between
two other tlat circular metal flanges and the three flanges are
tightly bolted by six bolts. The flange on the engine side being
referred to as the "inby flange", and the flange on the outside
air side being referred to as the "outby flange".
(Ex. P-2).
To check the flame arrestor, the inspector used "feeler
gauges"--tlat metal pieces of varying thicknesses used to measure
any openings.
(Tr. 28). He used the .005 thick gauge inserting
it in between the outby flange and the flame arrestor flange.
Inspector Gutierrez was able to insert a .005" gauge in some limited depth over some limited width at the interface of the flame
arrestor flange and the outby flange. Upon questioning by the
Court, Inspector Gutierrez e~plained that the gauge penetrated
"about" an inch and that an inch was not sutticient to get down
to the enclosed area where the tlame arrestor (the wire screen
mesh disc) was held in place.
(Tr. 51-52).
There was no evidence that the inspector made or even attempted to make an accurate objective measurement ot the depth ot
tt1e feel er gauge penetration.
Respondent's Position and Evidence
Respondent, at the hearing, presented pertinent evidence to
support its position which it stated upon opening of the record
as tallows~
First ot all that there was no violation ot 30
CoFoRo 750503 because the ram-car at issue was
in a permissible condition. The gap that Inspector Gutierrez found did not penetrate all
the way down to the flame arrestor itself and
theretore allowed no pathway for a flame, it
there were one, to escape to the atmosphere.
In addition 1 even if there was a violation,
West Elk objects to the S&S designation because
(tor several reasons) there was no reasonable
likelihood that any injury would occur as the
result of the gap.
It was not likely that the
engine would l::>a.cktire or cause any tlame that
could cause an ignition. Secondly, the loca-

1719

tion of the gap was on the outside or upward
side of the flame arrestor, and so there was
no way that a flame could escape through that
gap.
Thirdly, there are very low levels of
methane or coal dust in this mine, as will be
demonstrated by the record, and therefore,
even if there was flarrte that escaped, it
would be very unlikely there would be any ignition.
(Tr. 11-12).
It was clear from the testimony presented that Inspector
Gutierrez was able to insert the .005" feeler gauge only to a
limited depth and that he failed to measure that depth. When
questioned as to the depth, he was able to penetrate the feeler
gauge on the outby side of the tlame arrestor flange, the best
the inspector could do was give an estimate "about an inch."
Robert Morgan, the Section Mechanic responsible for the
ram-car and who was wi:th Inspector Gutierrez during the inspection, testified that he watched Inspector Gutierrez check the
tlame arrestor with the .UU5 feeler gauge.
He saw him insert the
feeler gauge on the outby, or fresh air side of the flame arrestor flange.
(Tr. 160). The gauge went in only approximately 3/8
to 1/2 inch.
Inspector Gutierrez marked the gauge with a telt
pen to mark the depth of the penetration and showed the mark to
Mr. Morgan and Mr. Walker.
(Tr. 178-179, 199). Before abating
the condition, Mr. Morgan checked the gap in question with his
own feeler gauge, using a .004" thick ga-uge.
The .004 gauge
penetrated only the same distance as Inspector Gutl.errez' gauge
didq which was 3/8 to 1/2 inch.
CTr. 175).
Mr o Dewey Wall(. er v Production Supervisor at the mineu was
also
esent when Inspector Gutierrez checked the gap (Tro 191l92) o
He testitied that the gauge penetrated approximately 1/2"
(Tr. 193) 9 and that circumferentially the gap was approximately
the width ot the teeler gauge.
(Tr. 193).
Inspector Gutierrez testified that the cause of the gap was
that the bolts were loose.
He based this conclusion on the tact
that he saw Mr. Morgan tightening the bolts.
(Tr. 34).
Inspector Gutierrez said that it took Mt. Morgan approximately 20 minutes to abate the citation because it took him about 10 minutes
to find the proper wrench to do the tightening and about 10 minutes to do the actual tightening.
(Tr. 51).
Inspector Gutierrez
also speculated that the flame arrestor could move back and
forthu thereby switching the gap trom the outby side to the inby
side and vice versa.
(Tr. 55). He testified he did not attenpt
to move the flame arrestor back and forth so did not know that it

1720

could move.
He assumed that it could move because he tound a
.005" gap rather than the maximum ot .U04" gap on the outby side.
(Tr. 55).
The inspector's conclusion that the bolts holding the flame
arrestor unit tlanges together were loose was based simply on the
tact he saw Mr. Morgan tightening the bolts and assumed that Mr.
Morgan abated the condition by doing nothing more than tightening
three bolts.
Inspector Gutierrez stated this as follows:
Q.

I believe you testified on redirect that you noticed
loose bolts after checking a gap.
In fact three bolts
were loose; is that correct?

~.

They tightened three bolts.
That showed me that they
were loose.
I didn •'t wiggle them. When they tightened
then, they tightened the three bolts.

Q.

So you are assuming, or concluding, if you will--

A.

Concluding

Q.

--that the bolts were loose because you saw him tighten
them.

A.

Exactly.

(Tr. 98).

Mro Morgan testified on the contra:i;.v that the bolts were not
loose and that he was not able to tighten them at allo
(Tr. 168) o
Mro Morgan tried to tighten the two bolts that were on either
side of the openingv and he couldn't tighten them.
Therefore, he
loosened all of the bolts enough to get a flat file in between
the two surtaces to clean them.
He concluded that because it was
just a small gap there must be something in there, either a burr
on the metal or some foreign objectv so he filed itu tightened
the bolts back up and checked the gap.
(Tr. 166-167) o
Mr. Walkerv who was present there the entire time, confirmed
that Mro Morgan attempted to tighten the bolts and could not
tighten themv so he loosened them up, did some tiling on the inside and then tightened the bolts back up.
(Tr. 192).
With respect to the width of the flame arrestor flange, the
distance trom the outer edge ot the tlame arrestor collar or
tlange to the flame arrestor itself is approximately 2 inches, as
testitied to by Inspector Gutierrez.
(Tr. 72). Mr. Taylor,
MSHA's expert witness and the Engineering Coordinator of MSHA's

1721

District 9, estimated the distance to be just under 2 inches.
(Tr. 141). When he was recalled to the stand by the Court to
make an accurate objective measurement, he determined that the
width of the flame arrestor flange was 1.95 inches.
Further Discussion and Findings
Respondent has the burden of proving by a preponderance of
the evidence that there was a violation of the cited safety standard 30 C.F.R.
75.503.
This section does not detine what constitutes permissibility. However, the Court and the parties were
fortunate to have the assistance and testimony of an experienced
and highly qualified expert, Mr. Jerry Taylor, Engineering Coordinator tor Coal Mine Safety and Health District 9. 3

»

Mr. Taylor testified that for the flame arrestor unit, the
maximum gap allowed is defined in 30 C.F.R. Part 18, specitically
in the Table at 18. 31 entitled "Enclosures-Joints and Fastenings."
(Tr. 182). That chart, according to Mr. Taylor, shows that a
tlame path of a maximum ot .004" must be maintained for at least
1 inch in distance from the tlame arrestor (outer edge of the
wire mesh disc) to the outside of the flame arrestor flange.
(Tro 125-126}. Consequently, in order for there to be a violation ot § 75.503, the tlame arrestor unit must have had less than
l" in depth between the flame arrestor flange and the outby
tlange that was .UU4 ot an inch or less in gap. As stated by the
permissibility expert, Mr. Taylor, the requirament of the safety
standard in question l•is that the tlame path be qt least an inch
wide--not less than an inch wide, and that the gap be not greater
than 0004. 11 Put another wayu in this case there would have been
a violation only it a gap greater than .004" extended more than
o~S ot an inch in depth measured trom the outer circwnterence
edge of the flame arrestor flange since the flange was 1.95
inches wide.
The preponderance of the evidence did not establish that
there was a violation. As discussed abovev the actual distance
trorn the opening for the flame arrestor and the outside edge of
the tlame arrestor tlange was l.95"u as measured very precisely
by Mro Taylor"
(Tr. 208)0 There is no precise measure~ent as to
how tar Inspector Gutierrez inserted the metal gauge.
The best
the inspector could do was to estimate it to be "about" an incho
(Tro 30, 51, 59). Messrs. Morgan and Walker testitied, however,
that the gauge penetrated only about 3/8" to 1/2".
(Tr. 161,

3

Mr. Taylor has a Bachelor of Science degree in Mechanical Engineering and in his present position coordinates all of
the engineering functions in District 9.

1722

193). They were tairly contident about this estimate because
Inspector Gutierrez had marked the teeler gauge with a telt tip
pen and showed Messrs. Morgan and Walker how tar the gauge had
penetrated. (Tr. lb0-161, 199). Further, Mr. Morgan checked the
gap himselt with his .004" feeler gauge and his gauge would go in
no more than 1/ 2". (Tr. 161-162) •
The preponderance of the evidence established that the gauge
penetrated substantially less than .95 ot an inch and, theretore,
the flame arrestor unit was in compliance with ~ 75.18.31 and was
permissible under~ 75.503. Even if Inspector Gutierrez's testimony were to be accepted completely and that ot Messrs Morgan and
Walker rejected, the government would have failed to carry its
burden ot proot. Inspector Gutierrez merely estimated that the
gauge penetrated "about" an inch, and Mr. Taylor measured the
pertinent distance on the flange as being 1.95 inches. Theretore, the Petitioner tailed to carry its burden ot proof that
Mountain Coal Company- did not maintain the gap between the flanges at .UU4" or less tor a distance of at least l". The citation
should be vacated.
On observing the demeanor of the three witnesses who testitied as to the depth of the penetration ot the feeler gauge, I
tind the testimony ot each ot the witnesses credible in the sense
that each ot these witnesses was giving his best estimate or
"guesstimate" as to the depth o:i:: penetration from 3/8 inch to
"about an inch". The Petitioner has the burden ot proof. The
best evidence it could ofter on the depi;h,. of pen~tration was
11
about an inch 11 • The weakness o:t Petitioner's case lies in the
act that the inspector tailed to make an accurate measurement or
any objective measurement at a.Ll in a situation where 1/2Uth of:
an inch could make the dif terence between a violation or no via1a t1on" Without a. measurement nabout an inch" means possibly a
little under l" or a little over 1 11 • This evidence is insufficient tor Petitioner to carry its burden ot proot, particularly
under the facts o:t this case where we have credible testimony
~rom ~wo
witnesses who estimated the depth ot penetration to
be 3/8 to
2 ot an inch.
Again on the question as to1whether the bolts were loose and
imply needed tightening to abate the problem, the testimony of
all three witnesses as to what they observed was credible. The
conclusion ot the inspector dit:tered :tram the other two witnesses
but was based on his limited observation of what was needed to
close whatever gap existed. Certainly Mr. Morgan who closed the
gap was the witness in the best position to observe and testify
what he had to do to close the gap. The testimony of the inspector as to the tightening of the bolts was not necessarily inconsistent with the testimony ot Mr. Morgan and Mr. Walk.er that

1723

Morgan had to loosen the bolts and use a file before he could
tighten the bolts.
I was impressed with Mr. Taylor's expertise in the field of
permissibility. However, his conclusion that there was a violation was based upon two assumed tacts that the preponderance of
the evidence failed to establish. Mr. Taylor's opinion was based
upon the assumption that the .oos feeler gauge penetrated into
the gap a depth of one inch and that these were loose bolts that
only needed to be tightened. The preponderance ot the evidence
presented failed to establish either of these assumptions as fact.
The Petitioner tailed to carry its burden ot proot. Citation No.
3413334 should be vacated.

ORDER
Citation No. 3413334 is vaca·ted and this case is
DISMISSED.

Aug st F. Cetti
Administrative Law Judge

istributiong
Susan J. Eckert, Esq., Office of the Solicitor, U.S. Department
of Laboru 1585 Federal Ottice Buildingu 1~61 Stout Streetr
Denverg CO 80294 (Certified Mail)
David Mo Arnolds 0 Esq. 0 Thomas Fa Linn 0 Esq.u WEST ELK COAL
COMPANYv INC. 0 555 - 17th Streetv 2Utn Floor 0 Denver 0 CO 80202
(Certified Mail)

sh

1724

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

OCT 2. 8 1991
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 91-57-M
A.C. No. 26-00249-05511

v.

Gooseberry Mine
:

ASAMERA MINERALS (US)
INCORPORATED,
Respondent
DECISION
Appearances:

Before:

George B. O'Haver, Esq., Otfice of the Solicitor,
U.S. Department·ot Labor, San Francisco,
California,
for Petitioner;
Charles R. Bush, Esq., Preston, Thorgrimson,
Shidler, Gates & Ellis, Seattle, Washington,
for Respondent.

Judge Cetti

The Secretary of Labor, on behalf of the Mine Safety and
Heal th Adrninistra ti on (MSHA), charged Respondent with viola ting
two safety regulations promulgated under· the Federal Mine Safety
and Health Act 0 30 U.S.Co ~ 801? et~ (the "Act") o
There was a fatal fall-of-person accident at the mineo The
accident occurred while the miner was replacing damaged timber
dividers in the manway for the 1000-7 stope on the 1000 level.
The miner tell approximately 66 teet down a rnanway timber slide.
Following the accident investigation 0 MSHA issued two 104(a)
citations to the Respondent alleging a violation ot 30 C.F.R.
~ 57.15005 and 30 C.F.R. § 57.11012 and proposed penalties
totaling ~6,UUOo
Respondent filed a timely answer denying any
violationo After notice to the parties, the case came on tor
hearing before me. All issues were fully litigated. At the
hearing 0 testimony was taken from the following individuals:

1.

Robert H. Morley, Federal Mines Inspector for MSHA.

2.

Ronald Barri, Federal Mine Inspector tor MSHA.

3.

Paul Belanger, Supervisory Mine Inspector for MSHA.

4.

Richard Karlson, Mine Project Manager.

1725

5.

Melvin J. Wattula, Health, Safety and Security Manager
for Respondent.

At the conclusion of the evidentiary hearing, that matter
was lett open tor post-hearing briets. Atter the rece.ipt of the
transcript, but within the time allowed tor filing of the briets,
the parties negotiated and reached a settlement agreement on both
citations. Under the proposed settlement agreement, the parties
propose to reduce the penalty tor the citations trom $b,OUU to
i? 3, :.:!4U.

Based upon my review and evaluation of the record, including
the evidence presented at the August 2i, 1991 hearing, I tind the
settlement agreement to be reasonable and consistent with the
statutory criteria in' Section 110 ( i) of the Act. The settlement
agreement is APPROVED.
ORDER
After careful consideration of all the evidence and testimony adduced in this case, IT IS ORDERED that Respondent pay
to the Secretary ot Labor a civil penalty ot $3,240 within thirty
(30) days of the date ot this decision.
Upon such payment this
proceeding is DISMISSED.

,,,.,

~.·
st F. Cetti
inistrative Law Judge

Distributioni
George Bo O'Haverv Esq. 0 Otfice of the Solicitor, U.S. Department oi: Laboru 71 Stevenson Street, Suite 1110, San Francisco, CA
94105-~999

(Certified Mail)

Charles R. Bush, Esq., PRESTON, THORGRIMSON, SHIDLER, GATES &
ELLIS, 54UU Columbia Center, 701 Fitth Avenue, Seattle, WA
98104-7078 {Certified Mail)
Mr. Rick Karlson, Mine Manager, ASAMERA MINERALS {US) INC., 6121
Lakeside Drive, Reno, NV 89511 (Certified Mail)
Sh

1726

ADMINISTRATIVE LAW JUDGE ORDERS

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

IN RE:

CONTESTS OF RESPIRABLE DUST
SAMPLE ALTERATION CITATIONS

MASTER DOCKET NO. 91-1

ORDER EXTENDING TIME
on September 17, 1991, I issued an order extending the time
for mine operators to respond to the Secretary's written
discovery requests, to utilize the document depository, to
examine and test filter media, and to serve written discovery
requests on the Secretary.
On Motion of Lambert Coal Company, Inc., and Koch Carbon,
Inc., who were served with the Petition instituting the penalty
proceeding against them on August 19, 1991, and who seek a
further extension of time, and on Motion of Mid-Continent
Resources and National King Coal, Inc., to amend the Plan and
Schedule of Discovery, IT IS ORDERED:
1. Operators who were parties in these proceedings prior to
June 28, 1991, are governed by the time limitations in the Plan
and Schedule of Discovery issued June 28, 1991, as amended
September 10, 1991, and as further extended by the Order
Extending Time issued September 17, 1991.
~D
Operators who became parties in this case between
June 28r 1991 and September 17, 1991, shall serve responses to
the Secretary 0 s written discovery requests within 40 days of
September 17, 1991.

3o
Operators described in numbered paragraph 2 above shall
have the same 40 day period to utilize the document depository
and to serve written discovery requests on the Secretary. The
Secretary shall respond to such written discovery requests within
30 days of service.

4. Operators described in numbered paragraph 2 above shall
be permitted to examine and test their filter media in accordance
with the Plan and Schedule of Discovery within the same 40 day
period. Western operators may request transfer of their dust
filters to the Deriver Health Technology Center within the same 40
day period, for testing in accordance with the Plan and Schedule
of Discovery.
If the filters are transferred to Denver the
testing shall be completed on or before November 30, 1991. All
operators described in paragraph 2 above shall identify their
employees involved in dust sampling in accordance with paragraph

1727

II.D.6 of the Plan and Schedule of Discovery within 40 days of
September 17, 1991.
5. Operators who become par±:ies in this case after
September 17, 1991, shall serve responses to the Secretary's
written discovery requests, shall utilize the document
depository, shall serve written discovery requests on ~he
Secretary, shall be permitted to examine and test their filter
media and shall identify their employees involved in dust
sampling within 40 days of the date they become parties in this
case.
6. All other dates and time limits in the Plan and Schedule
of Discovery as amended September 10, 1991, shall remain the
same.
1

.

'(<..!~ .kf.ivdz/v·tef:
)

James A. Broderick
Administrative Law Judge

Distribution:
Douglas N. White, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)

w. Challen Walling, Esq., Penn, Stuart, Eskridge & Jones, 306
Piedmont Avenue, P.O. Box 2009, Bristol, VA 24203 (Certified
Mail)

Edward Mulhallu Jro, Esq.u Delaney & BalcombQ P.C. 0 Drawer 790 0
Glenwood Springsu CO 81602 (Certified Mail)

Regular Mail to all other counsel and parties
slk

1728

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

22041

OOT 04 1991
IN RE:

CONTESTS OF RESPIRABLE DUST
SAMPLE ALTERATION CITATIONS

MASTER DOCKET NO. 91-1

ORDER GRANTING IN PART THE
SECRETARY'S MOTION TO AMEND
on October 1, 1991, the Secretary filed a motion for an
order amending the Discovery Plan. She submitted with the motion
a proposed Amended Prehearing Order Adopting Plan and Schedule of
Discovery. The motion states,. that it fallowed a meeting between
counsel for· the Secretary and counsel· representing more than
seventy five percent of the contested cases under this master
docket number, and all counsel present agreed that an amendment
was necessary to allow additional time for the taking of
depositions. In addition to seeking an extension of time for the
taking of depositions, the motion proposes to include the
provisions of my Order Extending Time issued September 17, 1991,
into the Plan and Schedule of Discovery. However, I issued on
September 30, 1991, a further order extending time for new
parties' discovery.
I have considered the motion and agree that the requested
extension of time for taking depositions is necessary"
Thereforeu the motion is GRANTED" The third Amended Prehearing
Order Adopting Plan and Schedule of Discoveryu incorporating
therein the provisions for new parties contained in my Order
Extending Time issued September 30, 1991, is issued this date,
and a copy is attached hereto.
411,,i,LJ?-5
;
Distribution~

See Attached List

1729

.//-'/j~'?:' ~~~ ;~

James A. Broderick
Administrative Law Judge

OCT 04 1991
OFFICE OF ADMINISTRATIVE LAW JUDGES
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
FALLS CHURCH, VIRGINIA
IN RE: CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

MASTER DOCKET NO. 91-1

AMENDED PREHEARING ORDER ADOPTING
PLAN AND SCHEDULE OF DISCOVERY
I hereby adopt as an order of the Review Commission the plan
and schedule of discovery submitted by counsel for the Secretary on
June 18, 1991, with the following revisions which resulted from
"-·~·

discussions at a Prehearing Conference on June 19, 1991, and the
Secretary of Labor's Motion to Amend Prehearing Order Adopting Plan
and Schedule of Discovery.
Introduction
The purpose of this plan is to avoid delay by providing a
mechanism to fairly and efficiently conduct discovery regarding the
Secretary of Labor 1 s (hereinafter "the Secretary") allegations of
alterations of coal dust filter media.

This plan and schedule is

intended to apply, to the extent feasible, to discovery in all
cases pending before the Federal Mine Safety and Health Review
Commission (hereinafter
filter media.

v1 the

Commission") involving altered dust

The plan and schedule of discovery provides for

complete and effective discovery while minimizing the duplication
of effort and unnecessary delay to the parties and the Commission.
Adoption of this plan will provide for the economy of scarce
judicial

resources

and

prevent

unnecessary

disruption

of

enforcement functions of the Mine Safety and Health Administration,
United States Department of Labor.

1730

2

The parties submitting this plan have acknowledged that there
-

may be fundamental distinctions in some cases and that there must
be an opportunity for case-specific discovery.

Other than as

provided for in this plan, all case-specific discovery will be
conducted under individual docket numbers.
All parties agree that the approval of this plan does not
constitute a waiver of any party's right to assert any defense or
privilege which is otherwise applicable.
References to "operators!'_ in this document refer to:

l} any

party designated as a contestant in a notice of contest previously
filed with the Commission;

and 2)

any party designated as a

respondent in the civil penalty proceedings filed by the secretary
of Labor.

References to "other parties" includes references to:

1) operators and 2) all intervenors.

References to "dust filter media" mean the filter and the
bacl<ing pad from the coal dust sample cassette identified in each

citationo
summary of the Plan
The plan and schedule of discovery provides for the issuance
of a generic docket number applicable to discovery of facts and
conclusions common to all of the citations at issue before an
administrative law judge.

The plan and schedule also provides for

discovery of facts and conclusions which are not common to all
citations and therefore outside of the scope of the generic docket
number.

Other than as specifically provided for in this plan,

1731

3

case-specific discovery will be conducted under individual docket
numbers.
The plan contemplates that, within five (5) days of the date
of its adoption, or by June 25; 1991 whichever is later, all other
parties

will

be

provided

with

complete

access

to

all

non-

privileged documents possessed by the Secretary that are properly
subject to discovery.

The plan also provides that the other

parties may take the depositions of Robert Thaxton on July 24th
through July 26th and Lewis Raymond on July 29th and 30th in order
to discover generally how the Secretary made her determination that
the weights of the samples at issue were altered.

The plan further

provides that the other parties may examine, pursuant to certain
limitations, the dust filters applicable to their respective cases
and may

subject the

dust

filters

to non-destructive

testing.

Examination of these filters is to be completed by October 30,
199

0

Other

than

the

of

witnesses

depositions

two

depositions
will

begin

mentioned

only

after

above,

all

discovery

by

interrogatory and document production is completed on August 30 1
19910

The depositions of individuals with first-hand knowledge

regarding the dust sampling and the designation of the dust filters
at

issue

as

individuals.

altered

will

precede

the

depositions

of

other

Joint Depositions of fact witnesses will be taken

between October 7, 1991 and November 22, 1991.
All expert witnesses will be required to prepare a written
report summarizing their credentials, all opinions to which they

1732

4

will testify in these matters, and the basis for such opinions.
These reports must be exchanged by December 16, 1991.

The

depositions of expert witnesses will be taken between January 6,
1992 and February 14, 1992.
Upon the completion of the discovery specifically provided for
in this plan, counsel for the Secretary and the other parties will
meet to discuss proposing an order and schedule of trials and a
plan and schedule for case-specific discovery in those matters.

I.

ADOPTION OF A GENERIC CAPTION AND MASTER DOCKET NUMBER
A.

To the extent feasible,

all contest and civil penalty

cases which involve altered dust filter media will carry a generic
caption and master docket number to encompass discovery in all
related litigation.

Parties may serve pleadings,

notices regarding discovery without having to
citation number, and docket number.

motions,

and

list each party,

The generic caption and master

docket number will be used in all pleadings, motions, or notices
issued during the joint round of discovery.

All motions or other

pleadings relating to joint discovery and filed pursuant to the
approved joint discovery plan shall be served on all other parties,
including all operators.
B.

In any civil penalty proceeding in which the Secretary's

allegation regarding altered dust filter media has been previously
contested,

the Secretary of Labor shall

file

the

Petition for

Assessment of Civil Penalty (hereinafter "the Petition") under the
master docket number and the individual docket number assigned by
the Commission.

The Secretary shall serve the Petition, a copy of

1733

5

this Plan and Schedule of Discovery, and a copy of the list of
documents available in the document repository upon each
Respondent.

All proceedings under Petitions so filed shall be

governed, to the extent feasible, by the terms of this Plan and
Schedule of Discovery.

c.

In any civil penalty proceeding arising out of a citation

alleging an alteration of a respirable dust sample issued by the
Secretary on April 4, 1991, the Secretary of Labor shall file the
Petition

for

Assessment

of

Civil

Penalty

(hereinafter

"the

Petition") under the master docket number and the individual docket
number assigned by the Commission.

The Secretary shall serve the

Petition, a copy of this Plan and Schedule of Discovery, and a copy
of the list of documents available in the document repository upon
each Respondent.

All proceedings under Petitions so filed shall be

governed, to the extent feasible, by the terms of this Plan and
Schedule of Discovery.
D.

Contests of citations issued after April 4, 1991 to any of

the other parties which involve allegations of the alteration of
respirable dust samples, as well as all civil penalty proceedings
arising out of such citations, shall be governed, to the exbent
feasible, by the terms of this Plan and Schedule of Discovery.
II. DISCOVERY UNDER THE GENERIC CAPTION AND MASTER DOCKET NUMBER
A.

Creation of a Document Repository

1.

The

Secretary

will

create

a

document

repository

in

Arlington, Virginia, where all documents to be made available by
the Secretary during discovery will be indexed,

1734

described,

and

6

filed in a central location .

The document repository will contain

authenticated copies of all discoverable non-privileged documents
in the Secretary's possession or control relating to altered dust
filter media as well as photographs of each dust filter.

The

document repository will include scientific reports relied upon by
the Secretary in determining to issue the citations involved here .
The document repository will be available for the other parties to
use within five

(5) days of the entry of an order adopting this

plan, or by June 25, 1991, whichever is later.

A copy of the list

of documents available in the document repository will be sent to
all other parties by June 21, 1991.
2.

The other parties will be required to avail themselves of

the documents in the document repository before filing further
requests for production of documents.

The Secretary will arrange

for one copy of each requested document relevant to that party's
citations to be made available to that party, without cost, upon
ten (10) working days written notice.

The other parties may also

request copies of specific documents in the document repository by
mailing a letter which specifically identifies the documents from
the list provided by the Secretary.

Such requests should be

addressed to the Secretary's counsel .

The Secretary will provide

such documents within ten

( 10)

working days of receipt of the

request.
3.
origin,

The Secretary will also compile a list,
date,

recipient,

brief description,

including the

and title,

of

any

document deemed by the Secretary not to be discoverable or which is

1735

7

otherwise privileged.

The Secretary will on or before July 1,

1991, mail to all other parties copies of the list of documents she
deems

privileged

or otherwise not

subject

to discovery

statement of the basis for the claimed privilege.

and a

A copy of this

list will be kept in the repository for examination and copying by
the other parties.
4.

Parties

desiring

physical

access

to

the

document

repository will be expected to consult with the Division of Mine
Safety

and

Health,

Office

of

the

Solicitor

to

insure

that

sufficient space is available to accommodate all interested parties
at the requested time.
twenty-four (24)

Parties should call 703-235-1153, at least

hours in advance of their expected arrival, to

arrange for access to the document repository.
5.

The document repository will be available from June 25,

1991 to August 30, 1991.
B. Testing of Dust Filters
The Secretary will make available for photographing and nondestructive testing the dust filter media which are the basis for
the Section 104(a) citations and associated civil penalties issued
to the other parties.

The production of these dust filters will be

limited as follows:
1.

The dust filter media shall be made available first to the

coal mine operator

(or designated representative)

relevant citation.

The other parties shall have access to each

other 1 s

named in the

dust filter media only upon receipt by the Secretary 1 s

counsel of written permission from the counsel for the operator

1736

8

named in the

relevant citation.

Upon the

refusal

of written

permission by another party, or other inability to obtain the other
party's permission, any party may move the administrative law judge
for an order providing the moving party with access to the dust
filter media-of another party.
2.

All

dust

filter

media

shall

be

made

available

in

Arlington, Virginia, at a location designated by the Secretary for
photographing, examination, and nondestructive testing.
3.

Any party may

request

in writing that the Secretary

transfer its dust filter media to the Denver Heal th Technology
Center,

Denver,

Colorado,

nondestructive testing.

for

photographing,

examination,

and

Such requests must be received by the

Secretary's counsel by July 25, 1991.

The Secretary must complete

the transfer of the dust filter media by August 8, 1991.

All dust

filter media for which no written request to transfer is received
July 25, 1991, shall remain in Arlington, Virginia@
4

Photographing, examination, and nondestructive testing may

o

only be

conducted

Secretary

o

in the presence of

a

representative of the

The Secretary 1 s right to select a representative of her

choice is not limited in any respect.

The operators must provide

their

other

own

equipment,

chemicals

0

and

necessary materials

needed to conduct their nondestructive testing.
also

provide

for

the

safe

removal

The operators must

and disposal

of

all

waste

materials which result from the nondestructive testing.
5.

The request of the operator for the production of the dust

filter media must be made in writing to the Secretary's counsel and

1737

9

be received at least five (5) days in advance of the requested date
for production.

The request must state specifically: 1) the dust

filter media the operator proposes to examine; 2) the names of the
individuals to examine the dust filter media;
examination

procedures

and

the

equipment,

3)

the specific

chemicals,

and/or

processes that the dust filter media will be subject to: 4) the
equipment,
perform

chemicals,

the

and materials the operators will use to

nondestructive

testing;

5)

an

agreement that

the

operator will safely remove and dispose of all waste materials
which result from the- nondestructive testing; and,

6) the date,

time, and anticipated duration of such examination.
60

The request must certify that the procedures, chemicals,

and processes that the dust filter media will be subject to will
not destroy or alter the dust filter in any material respect.

The

parties acknowledge that should the dust filter media be destroyed
or

materially

altered

during

the

operators 1

photographing,

examinationf or testing, the photograph of that dust filter media
previously taken by the Secretary shall be admissible in these
proceedings"
7o

If counsel for the Secretary believes that the examination

or the procedures

chemicals, and processes could result in the

dust filter media being destroyed or altered, the Secretary shall
promptly

notify

the

requesting

party

of

the

basis

for

the

Secretary 1 s belief and the parties shall attempt to resolve the
issue.

Issues which cannot

be resolved expeditiously may be

submitted to the administrative law judge for resolution.

1738

10

8.

The

operators'

right

to

review

and

conduct

non-

destructive testing will be subject to reasonable limitations in
terms of the duration of tests and the number of tests.
operators acknowledge that the Secretary may

The

impose reasonable

limitations, consistent with her obligation to maintain a chain of
custody for each of the dust filter media,

upon the number of

parties conducting examinations or testing at one time.
Secretary

and

the

operators

cannot

expeditiously

If the

resolve

any

disputes regarding th~ duration or number of tests, the matter may
be submitted to the administrative law judge for resolution.
9.

Where the operators desire to conduct testing of the dust

filter media which requires equipment which cannot be utilized at
the location provided by the Secretary, the Secretary will make
reasonable efforts to cooperate in such testing.
and

the

operators

regarding

such

cannot

tests,

the

expeditiously
matter

may

If the Secretary

resolve
be

any

submitted

disputes
to

the

administrative law judge for resolution.
The

lOo

photographing,

examination,

and

nondestructive

testing of the du~t filter media shall be completed by October 30r
1991.

llo

testing

The parties recognize that additional examination and
of

dust

filter

media

may

be

necessary

depositions of the Secretary 1 s expert witnesses.

following

the

The Secretary

agrees to make reasonable efforts to comply with such requests.

If

the Secretary and the operators cannot expeditiously resolve any
disputes regarding such tests, the matter may be submitted to the

1739

11
administrative law judge.

c. Expert Witnesses
The provisions of this Plan and Schedule shall be applicable
to all expert testimony offered by the Secretary or the other
parties

at

any

trial

involving

altered

dust

filter

media.

Testimony of expert witnesses for the Secretary and other parties
will be taken subject to the following limitations:
1.

The Secretary and the other parties will exchange lists of

all experts they anticipate using at trial.
exchanged by December 2, 1991.

These lists are to be

Any additions or deletions in these

lists must be served on opposing counsel within ten (10) days of a
party's decision to add or delete an expert witness.
2.

Expert witnesses will be required to prepare a written

report stating their credentials, all opinions or conclusions to
which the expert expects to testify at trial, and a summary of any
t·est r study, results, or evaluations which form the basis for such
conclusions

or opinions

o

These

reports

shall

be

served upon

opposing counsel by December 16, 1991.
3"

All costs associated with the depositions of experts,

including expert fees for testifying,

shall be controlled by

Rule 26(b) (4) of the Federal Rules of Civil Procedure except when
otherwise agreed to by the parties.
4.

Depositions of experts shall be held where the expert is

located, unless the party on whose behalf the expert will testify
agrees to provide the expert at some other location.
situation,

In this

the costs of having an expert travel to such other

1740

12
location (and any associated travel expenses) shall be borne by the
party on whose behalf the expert will testify.
5.

Depositions of "case specific" expert witnesses may be

noticed during the period for case specific discovery beginning in
March 1992.

Expert witnesses may be retained after and as a result

of case specific discovery.
D. Sequence of Discovery
The First or Joint Phase
1.

No

depositions,

except

those

provided

for

below

in

paragraph D. 2, shall-be taken until such time as discovery through
requests for admissions, interrogatories, the document repository,
and requests for production of documents are completed.

Except for

good cause shown, responses to requests for admissions, answers to
interrogatories,
responses

to

inspection

requests

for

of

document

production

completed by September 13, 19910
October 4,

the

of

repository,

documents

shall

Motions to compel shall be

and
be
led

The pendency of any such motion shall not

19910

delay the implementation of any subsequent provision of this plan
and schedule of discovery"
2o

The Secretary shall make Robert Thaxton, District 4, Coal

Mine Sa

and Health, available for deposition on July 24, 25,

and

26,

1991,

and

Lewis Raymond,

Center,

Mine

Safety

and

Health

Pittsburgh Health Technology
Administration,

deposition on July 29 and 30, 1991.

available

for

These depositions shall be

conducted at a suitable location designated by the Secretary in the

1741

13

Washington,

D. C.

area.

These two depositions sh al 1 be taken

pursuant to the terms of paragraph D. 10 below.
3.

The Secretary will

initiate discovery by admissions,

interrogatories, and request for production of documents and things
of the other parties under the generic docket number within 15 days
of the entry of the order adopting this discovery schedule or
July 15, 1991, whichever is later.
4.
all

The Secretary will, on or before July 1, 1991, identify

persons,

including

empi'oyees

of

the

Secretary,

who

were

involved in the receipt and processing of the dust filter media
which led to the citations at issue.
5.

The Secretary will, on or before July 1, 1991, identify

all persons,

including employees of the Secretary, who made the

determination that the dust filter media at issue each had been
altered.
60

identify v

1

rhe

operators

tr1ill,

on

for

each dust

sample the Secretary has

or

before

August

30v

1991,

alleged was

altered in the contested citations, those employees of the operator
who were responsible

for~

(a)

the dust sampling program at each

mine;

(b)

the identity of the person who signed each dust data

card;

(c) the identity of the person responsible for the custody

and control of each dust cassette after it had been removed from
the miner or the designated sampling area; (d) the identity of the
person responsible for the transferring of each dust cassette from
the operator to MSHA; and, (e) a general description of the process

1742

14

of the dust sampling program at each mine subject to the master
docket.
7.

All parties desiring to take the deposition of potential

fact witnesses as a Joint Deposition shall notify the Secretary and
the other parties in writing of the names of such witnesses by
September

13,

1991.

All

parties

may,

by

October

4,

1991,

supplement their lists of potential fact witnesses identified from
written discovery responses.

With the exception of persons listed

as witnesses by a party, or persons named by the Secretary or the
other parties as required by paragraphs four (4), five (5), and six
(6) above, such notifications shall include a brief recital of the
reasons for the taking of the deposition. on or before October 14,
1991, the Secretary will notify all parties in writing of the names
of any fact witnesses from whom the Secretary desires to take a
deposition as a Joint Deposition.

Joint Depositions will not be

limited only to the witnesses listed in paragraphs II. 0 D. 4 0 5 0
and 6 above.

Additional Joint Depositions will only be allowed if

a party is permitted to amend its list of potenti~l witnesses.
8.

The depositions of the employees of the Secretary shall be

taken in a sequence beginning with the lower level employees and
proceeding up the chain of command.

This is to insure that the

individuals with first-hand knowledge will be deposed first and to
reduce

the

necessity

for

repeatedly

deposing

individuals with

important enforcement responsibilities.
9.

The depositions of witnesses will be taken in two phases.

The first phase of depositions will be taken under the generic

1743

15
caption and master docket number referred to above and will be
limited to Joint Depositions.
witnesses

shall

be taken

The Joint Depositions of fact

prior to

such depositions

of

expert

witnesses.
a.

Depositions of the Secretary's witnesses will be taken as

Joint Depositions if the Secretary names the witness pursuant to
paragraphs four (4) or five (5) above, or otherwise indicates that
the witness is expected to testify in more than one proceeding
pending before the Commission.
Depositions

of

the

The date and locations of Joint

Secretary's

non-expert

witnesses

will

be

proposed in writing by the Secretary within ten (10) days of the
closing of the notice period for Joint Depositions (see paragraph
7 above).

The Secretary will consult with opposing counsel prior

to proposing such dates and locations.

The other parties may file

written objections to the proposed dates and locations with the
administrative law judge.

If written objections to the proposed

.dates and locations are received 1

the administrative law judge

shall set the dates and locations of the depositions by order.
b.

The deposition of a witness for the other parties will

-also be taken as a Joint Deposition if the witness is listed as a
potential witness for more than one party,

or if the witness is

identified as an expert pursuant to paragraph c. 1 above.

The date

and locations of Joint Depositions of the other parties' non-expert
witnesses must be proposed in writing by the parties within ten
(10) days of the closing of the notice period for Joint Depositions
(see paragraph 6 above).

The other parties will consult with each

1744

16

other and the Secretary's counsel prior to proposing such dates and
locations.

The Secretary may file written objections to the

proposed dates and locations with the administrative law judge.

If

written

are

objections

received,

to

the

proposed

dates

and

locations

the administrative law judge shall set the dates and

locations of the depositions by order.
10.

Joint Depositions will be taken pursuant to the following

procedures and limitations.
a.

All Joint Depositions will be recorded by a certified

court reporter and videotaped if requested by a party.

The party

making the request shall bear the cost of videotaping.

The party

noticing the deposition will be responsible for all fees associated
with the certified court reporter.
b.

The Joint Depositions will be limited to testimony that is

common to all of the cases.

In the case of expert witnesses, such

Joint

limited

Depositions

will

be

to

the

witness 1 expertise 1

methodology, data; conclusions, and the basis for such conclusionso
Questions relating to specific citations will not be appropriate,
unless the expert has such knowledgeo
Co

the

At all Joint Depositions of a witness for the Secretary

operatorsu

counsel

shall

determine

in

advance

the

lead

questioner and shall draw lots for the order of questioning by
other

operators 1

counsel.
at

Questioning
the

will

conclusion

permitted

counsel

questioning.

Cumulative and repetitive questions from different

1745

the

by

intervenors 1

counsel and parties will not be allowed.

of

be

operators'

17
d.

At all Joint Depositions of a witness for a party other

than the Secretary, only the Secretary, the parties retaining the
individual as a witness, and the representative of miners in the
subject mine, if the representative of miners at the subject mine
has chosen to intervene pursuant to applicable Review Commission
rules, shall be allowed to participate.

The United Mine Workers of

America (UMWA) filed an intervention on June 24, 1991, for mines in
which it is the representative of the miners.
11.

Subpoenas

shall "not

be

necessary

to

require

the

attendance of any salaried employee of a party or retained expert
to testify at a deposition.

Subpoenas for entities or individuals

requiring

of

the

attendance

witnesses

and

the

production

of

documents at deposition will be available upon the filing of a
notice of depositions and a written request for a subpoena which
specifies the individual and/or the things sought. A copy of such
written request shall be served upon all counsel served with the
notice of deposition.
12.

The Joint Depositions of non-expert witnesses shall be

completed by November 22 v 199L

Additional depositions may be

permitted only for good cause shown.
13.

All parties desiring to take the deposition of an expert

witness as a Joint Deposition shall notify the Secretary and the
other parties,
December 24,

in writing of the identity of the expert by

1991.

The party noticing such a deposition shall

confer with counsel of the party offering the expert testimony for
the purpose of fixing the dates and locations of the depositions.

1746

18

If the parties cannot agree, the administrative law judge shall set
the dates and locations of the depositions by order.
14.

The Joint Depositions of all expert witnesses shall be

completed by February 14,

1992.

Additional depositions may be

permitted only for good cause shown.
15.

Joint

Depositions

may

be used,

consistent

with the

Federal Rules of Evidence and Federal Rules of Civil Procedure, at
the trial of any proceeding subject to the master docket number.
E. Notices
Notices of all proceedings under this plan shall be sent to
all parties.
Fo Filing of Discovery
Pursuant to Rule 5{d) of the Federal Rules of civil Procedure,
discovery

requests

and

responses

will

not

be

filed

with

the

Commission except in connection with a motion seeking a ruling @n
a discovery disputeo

IIIo CASE SPECIFIC DISCOVERY AND ORDER OF TRIALS
Counsel for the Secretary and the other parties shall meet,
within ten

(10)

days

of February 14 ~

1992

for

the purpose

of

discussing and proposing to the administrative law judge a proposed
order

and

schedule

of

trials

and

a

case-specific discovery in such matterso

plan

and

schedule

for

A discovery conference

shall be held on March 2, 1992, at a time and location specified by
the administrative law judge, to discuss the order and schedule of
trials and a schedule for case-specific discovery.

1747

19
IV.

DISCOVERY FOR NEW PARTIES
Operators who were parties in this case prior to June 28,

1.

1991

(the

date

Discovery),

of

shall

the

issuance

of

serve

responses

the
to

Plan

the

and

Schedule

Secretary's

of

written

discovery on or before September 20, 1991.
2.
1991

Operators who become parties in this case between June 28,

and

September

17,

1991,

shall

serve

responses

to

the

Secretary's written discovery within 40 days of September 17, 1991.
3.

Operators described in numbered paragraph 2 above shall

have the same 40 day period to utilize the document repository and
to

serve

written

discovery

requests

on

the

Secretary.

The

Secretary shall respond to such written discovery requests within
30 days of service.
4.

Operators described in numbered paragraph 2 above shall be

permitted to examine and test their filter media in accordance with
the Plan and Schedule of Discovery within the same 40 day period.
Western operators may request transfer of their dust filters to the
Denver Health Technology Center within the same 40 day period, for
testing in accordance with the Plan and Schedule of Discovery.

If

the

be

1 ters

are

transferred

to

Denver,

the

testing

shall

completed on or before November 30, 1991.
5.

Operators described in numbered paragraph 2 above shall

identify their employees involved in dust sampling in accordance
with paragraph II.D.6 of the Plan and Schedule of Discovery within
the above mentioned 40-day period.

1748

20

6.

Operators

September 17,

1991,

who

become

parties

shall

serve

responses

to
to

this
the

case

after

Secretary's

written discovery requests, shall utilize the document depository,
shall serve written discovery requests on the Secretary, shall be
permitted

to

examine

and

test

their

filter

media,

and

shall

identify their employees involved in dust sampling within 40 days
of the date they become parties in this case.
V.

AMENDMENTS TO PLAN

Amendments to this Discovery Pl.an and Schedule may be granted,
for good cause shown, upon the motion of any party.
-,

.

ti,,t iu:.~ .. ~tftvdft i e-A:._

A

James A. Broderick
Administrative Law Judge

Distribution:
See attached list

1749

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

OCT 07 1991
IN RE:

CONTESTS OF RESPIRABLE DUST
SAMPLE ALTERATION CITATIONS

MASTER DOCKET NO. 91-1

ORDER GRANTING MOTION FOR RECONSIDERATION
ORDER UPHOLDING CLAIM OF PRIVILEGE FOR
CERTAIN DOCUMENTS
ORDER TO PRODUCE CERTAIN DOCUMENTS
On October 4, 1991, counsel for Kentucky Carbon Corp., et
al., filed a "renewed" motion to compel production of documents
in accordance with my orders ±ssued September 27, 1991. The
Secretary on October 4, 1991, filed a motion for reconsideration
of my order of September 27, 1991, insofar as that order required
the Secretary to produce Documents Nos. 3, 5, 201, 203, 350, 353,
365, 366, 367, 401 and 424. The Secretary submitted each of
these documents for my in camera inspection.
I have considered the two motions and have reviewed the
documents submitted for in camera inspection. On the basis of
that consideration and review, the Secretary's Motion for
Reconsideration is GRANTED.
In my order issued September 13, 1991, I indicated that
following a determination of the propriety of the Secretaryus
claims of privilege, I would determine whether privileged
documents should be ordered disclosed because Contestants 1 need
for the documents outweighed the Secretary's interest in keeping
them confidential. Order of September 13, 1991 at 8-9, 17. My
order of September 27, 1991, to produce certain documents
concerning which I upheld the claim of privilege was not issued
sua sponte as the Secretary assertsp but pursuant to the motions
to compel production filed July 26, 1991, August 13, 1991 and
August l9p 1991. Contestants have asserted that the documents in
question directly relate to the central issue of this case, that
they are exclusively in the possession of the Government, and
that they consist largely of factual material. The Secretary has
not denied the first two assertions, but has, at least with
respect to certain of the documents, denied that they are largely
factual.
Since I.have now examined all the withheld documents in
camera, I can decide whether they are exclusively factual or are
deliberative.

1750

I

On reconsideration of my order of September 27, 1991, the
following documents need not be produced.
Document No. 5. This ..,,.is a draft report of PHTC dated
June 1991 entitled Investigation of Dust Deposition Patterns on
Respirable Coal Mine Dust Samples, consisting of 102 pages. I
erroneously concluded that this document was a preliminary draft
of a completed study. On review, it is obviously part of a
continuing study.
It is privileged as part of the deliberative
process, and the needs of the Contestants do not outweigh the
Secretary's interest in confidentiality.
Document No. 201. This is a memorandum from the MSHA Chief
Division of Health to District Managers dated May 7, 1991 and, as
the Secretary points out in her argument, involves the current
development of a new investigative program in the dust sampling
area. The document is privileged as part of an investigative
effort which is continuing. ·The operators' need for this
document does not outweigh the Secretary's interest in
confidentiality.
Document No. 203. This is a memorandum of a telephone
instruction March 21, 1990, from Glen Tinney, Arlington Health
Division, entitled "New Void Code AWC--abnormal white center."
The Secretary's motion states that this document, like document
201, involves "the current development of a new investigative
program concerning other potential violations of the dust
sampling program." On the basis of this representation, the
operators' need for the document does not outweigh the
Secretary 1 s interest on confidentiality"
II

On reconsideration of my order of September 27, 1991, the
Secretary is ORDERED to produce the following documents by
placing them in the Document Depository on or before October 15,
199L
Documents 3, 365, 366 and 3670 These documents are a draft
report of investigation by Warren R. Myers, Ph.D. and Allen
Wells, MoS., of the Department of Industrial Engineering, West
Virginia University concerning "Mine Compliance Sampling Filter
Abnormalities" dated February 15, 1990, with handwritten comments
apparently inserted by MSHA personnel (367), letters from Glenn
Tinney (MSHA) to Dr. Myers, March 16, 1990 and May 4, 1990 with
comments on the draft reports of Dr. Myers (365, 366), and a
letter from Dr. Myers to Glenn Tinney, April 11, 1990, with
responses to Tinney's comments on the first draft report (3).
As the Secretary noted in her Motion, I held that all of

these documents fell within the deliberative process privilege.
The question remains whether they are discoverable because the
operators' need for the documents outweighs the Secretary's
interest in keeping them confidential. The litigation before the
Commission involves the Goyernment's charge that the mine
operators tampered with respirable coal mine dust samples. This
contention is based in· part on the study and report prepare~ by
West Virginia University. I conclude that fairness to the
operators (and in the Commission's interest in fairly deciding
these cases) demands that they be apprised not only of the final
report, but also of the delibe.rations, Government suggestions,
changes and revisions that led to the final report. I do not
believe that the disclosure of these documents will compromise
governmental policy deliberations. The operators' need for the
documents outweighs the Secretary's interest in keeping them
confidential.
Documents 350 and 353. Document 350 is a computer printout
showing the number and. percenfii.ge of "tampered" samples from over
six hundred mines. Robert Thaxto~ in an affidavit August 30,
1990, states that this document was prepared at the request of
the U.S. Attorney for the Southern District of West Virginia.
There is nothing in the document that refers to any criminal
investigation and nothing limiting it to such an investigation.
Document 353 is a computer printout of the number of tampered
samples at different mines in different MSHA districts as of
October 13, 1989. Mr. Thaxton's affidavit states that the
content and organization of the document are related to criminal
investigations. But again there is nothing in the document to
show that it is part of, or limited to, a criminal investigation.
The documents are entirely factual. I conclude that the need of
the operators for this information outweighs the Secretary's
interest in confidentialityo
Documents 401 and 424. Document 401 is 74 pages in length
and includes drafts of the 1989 PHTC report. Document 424 is a
draft "List of Tables" with handwritten changes and notations
showing results of dust filter testing as part of ·-the PHTC 1989
report" For the reasons given above with reference to Documents
3r 365v 366 and 367, I conclude that the operators' need for the
documents outweighs the Secretary's interest in keeping them
confidential.

;fevt,1U:S ~ ~1_1;/z;cU1:i&L

:;J Administrative
~ames A. Broderick
Law Judge

1752

Distribution List attached:
Douglas N. White, Esq., U.S. Department of Labor, Office of the
Solicitor (Certified Mail)
Laura E. Beverage, Esq., Jackson & Kelly (Certified Mail)
Linda Homerding, Esq., Williams & Connolly (Certified Mail)
Thomas R. Scott, Esq., Street, Street, Street, Scott & Bowman
(Certified ~ail)
All other Counsel and Parties served by Regular Mail

1153

Robert B. Allen, Esq.
John J. Polak, Esq.
King, Betts and Allen
P.O. Box 3394
Charleston, WV 25333
Karl F. Anuta, Esq. (Co-counsel Crowell & Moring)
Western Fuels-Utah, Inc.
P.O. Box 1001
1120 14th street
Boulder, co 80306
Charles J. Baird, Esq.
Baird, Baird, Baird and Jones, P.s.c.
P.O. Box 351
415 Second Street
Pikeville, KY 41502
Brandan G. Baker
Farkus Coal Co., Inc.
107 Linden Avenue
Charlerio, PA 15022
Harold Baldridge, President
Prater & Baldridge coal, Inc.
P.O. Box 167
Garrett, KY 41630
Ralph Ball, President
Sterling Energy, Inc.
Rt. 3, Box 22
Industrial Park Road
Jacksborof TN 37757
Phillip Do Barberu Esqo
Wellbon, Duffordu Brown & Tooley
1700 Broadway
Suite 1700
Denveru CO 80290-1701
George Basarau Esqo
Polito & Smock, P.Co
Suite 400, Four Gateway Center
Pittsburgh, PA 15222-1207
Sheila Becker, Vice President
Jim Dandy Coals, Inc.
P.O. Box 328
Buckhannon, WV 26201

1754

Laura E. Beverage, Esq.
Jackson and Kelly
P.O. Box 553
Charleston, WV 25322
Timothy M. Biddle, Esq.
Crowell and Moring
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
William H. Bland, President
Edward A. Moss, Safety Coordinator
B.S. & s. Coal Co., Inc.
P.O. Box 639
Morgantown, WV 26507
Virgil C. Blankenship
Bear Ridge Mining, Inc.
P.O. Box 255
Tazewell, VA 24651
Michael w. Boehm, Esq.
Spears, Moore, Rebman and Williams
8th Floor, Blue Cross Building
P.O. Box 1749
Chattanooga, TN 34402
Harold D. Bolling, President
Daniel Lee Coal Co., Inc.
135 w. Main Street
Whitesburg, KY 41858
liam Eo Bradshawv Esqo
Keuling, Stout and Bradshaw
P.Oo Box 400
Big Stone Gap, VA 24219
Clifford D. Burden
Pyre Mining Co.
P.O. Box 289
Sturgis, KY 42459
David Burden
Prestige Coal Company
275 A.S. Main street
Madisonville, KY 42431
Harry L. Capadano, III, Esq.
Decker Coal Company
One Thousand Kiewit Plaza
Omaha, NE 68131

(Co-counsel Crowell & Moring)

1755

David E. Cecil, Esq.
Robertson, Cecil, King and Pruitt
237 Main Street
Drawer 1560
Grundy, VA 24614
Harry M. Coven, Esq.
Gould and Ratner
222 North LaSalle Street
8th Floor
Chicago, IL 60601-1086
Michael w. critch, Superintendent
Thor, Inc.
1000 Dupont Road
Building #6
Morgantown, WV 26505
Martin J. Cunningham, Esq.
Reece, Lang & BreedingLondon Bank & Trust Bldg.
400 s. Main Street
P.O. Drawer 5087
London, KY 40745-5087
Robert I. Cusick, Esq.
David B. Wicker, Esq.
Wyatt, Tarrant and Combs
Citizens Plaza
Louisville, KY 40202
Foresteru Buttermore 0 Turner ~ Lawson
PoOo BOX 935

Harlan 0 KY 40831-0935

Denise A. Dragoo, Esq.
Geoffrey P. Griffin~ Esq.
Fabian & Clendenin
215 Soo State Street 0 12th Floor
PoOo Box 510210
Salt Lake Cityu UT 84151
Ge Freeman, President
Estel Crouse 9 Vice President
Doris Coal Company
Box 235
Grundy, VA 24614

H.

Loyal G. Forman, Jr., President
Ringold Mining, Inc.
P.O. Box 433
Kingwood, WV 26537

1756

Ray.D. Gardner, Esq. (Co-counsel Crowell & Moring)
Pittsburg and Midway Coal
, s~,: .
6400 south Fiddler's Green Circle
Englewood, co 80111-4991
Charles B. Hall, President=
H&D Coal Co., Inc.
P.O. Box 480
Whitesburg, KY 41858
James A. Harris, Esq.
Waters, Warner & Harris
701 Goff Building
P.O. Box 1716
Clarksburg, WV 26301
Carl David Harold
Fire Creek, Inc.
P.O. Box 5066
Princeton, WV 24740
Carl H. Hellerstedt, Jr., Esq.
Volk, Frankovitch, Anetakis, Recht, Robertson & Hellerstedt
Three Gateway center
15th Floor East
Pittsburgh, PA 15222
Michael T. Heenan, Esq.
Smith, Heenan and Althen
1110 Vermont Avenue, N.W.
Washington, D.C. 20005
Linda Homerding, Esq.
Williams and Connolly
839 17th streetu N.W.
Washington, o.c. 20006
David Howard
Cumberland Valley Contractors, Inc.
P.O. Box 1329
Middlesboro, KY 40965
John M. Huddler Esq.
Gentry, Locke, Rakes & Moore
P.O. Box 1018
Roanoke, VA 24005
Donald L. Humphreys, Esq.
BHP-Utah International, Inc.
550 California Street
San Francisco, CA 94104

·1757

Morris Issac
Safety Director
Reynolds Branch Coal Company, Inc.
P.O. Box 620
Martin, KY 41649
Mary Lu Jordan, Esq.
Michael Dinnerstein, Esq.
United Mine Workers of America
900 15th Street, N.W.
Washington, D.C. 20005
James R. Justus
Just-Us Coal Corp.
P.O. Box 359
Hurley, VA 24620
D. B. Kazee, Esq.
Francis, Kazee & Francis
111 East Court Street_
P.O. Box 700
Prestonsburg, KY 41653
David A. Laing, Esq. (Co-counsel Crowell & Moring)
Porter, Wright, Morris and Arthur
41 S. High Street
Columbus, OH 43215
Dan Llewellyn
Delta Coal Sales, Inc.
P.O. Box 309
Grantsville 9 MD 21536
Louis Lorenzov President
Lorenzo Mining Co., Inc.
R.R. 1 1 Box 464
Linton, TN 47441
John c. Martin 0 Esq.
V. Heather Sibbison, Esq.
Patton, Boggs & Blow
2550 M Street, N.W.
Washington 7 D.C. 20037
Matthew G. Melvin, Esq.
Barbera and Barbera
146 w. Main Street
P.O. Box 775
Somerset, PA 15501

1758

Marcus P. McGraw, Esq.
Greenbaum, Doll and McDonald
1400 Vine Center Tower
P.O. Box 1808
Lexington, KY 40593
Matthew F. McNulty, III, Esq.
Van Cott, Bagley, Cornwall and McCarthy
50 South Main Street, Suite 1600
Salt Lake City, UT 84145
Dina M. Mohler, Esq.
Kay, Casto, Chaney, Love and Wise
P.O. Box 2031
Charleston, WV 25327
R. Henry Moore, Esq.
Buchanan Ingersoll
600 Grant Street, 58th Floor,
Pittsburgh, PA 15219
Edward Mulhall, Jr., Esq.
Delaney and Balcomb, P.C.
Drawer 790
Glenwood Springs, CO 81602
Randall K. Osborne
Rt. 1, Box 53
Pennington Gap, VA 24277

Jacl<.ie Owens
Pa-Pa Coal Mining COov Inca
146 Wo Main Street
PoOo BOX 775
Somerset 1 PA 15501-0775

John Palmerp Esqo
Robinson and McElwee
PoOo Box 1791
Charlestonv WV 25326
Karl-Hans Rath 1 Vice President
Dunkard Mining Coo
PoOo BOX 8
Dilliner, PA 15327
Michael J. Schmitt, Esq.
Wells, Porter, Schmitt & Walker
327 Main Street
P.O. Box 1179
Paintsville, KY 41240-5179

1759

Randall Scott May, Esq.
Barett, Haynes, May, Carter & Roarck, P.S.C.
P.O. Box 1017
Hazard, KY 41701
Thomas R. Scott, Jr., Esq.,,._
Street, Street, Street, Scott and Bowman
P.O. Box 2100
Grundy, VA 24614
Leo M. Stepanian, Esq.
Stepanian & Muscatello
228 So. Main Street
Butler, PA 16001
David M. Smith, Esq.
Maynard, Cooper, Frierson and Gale
1901 6th Avenue, North
Suite 2400 Amsouth/Harbert Plaza
Birmingham, AL 35203

s. R. Smith, President
Teays Mining, Inc.
P.O. Box 72
Mt. Hope, WV 25880
William D. Stover, Esq.
41 Eagles Road
Beckley, WV 25326
Ora Dwaynne Tennant, superintendent
Gray Stone Mining, Inc.
Route 2
Box 284

Fairview, WV 26570
K. Dale Tolliver
Quality Energy, Inc.
P.O. Box 1740
Princeton, WV 24740
Charles A. Wagner, Esq.
Wagner, Myers and Sanger
P.O. Box 1308
Knoxville, TN 37901
W. Challen Walling, Esq.
Penn, Stuart, Eskridge & Jones
306 Piedmont Avenue
P.O. Box 2009
Bristol, VA 24203

1760

R. Gregory West, Esq.
106 Municipal Drive, Suite 200
Oneida, TN 37841
Douglas N. White, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Blvd.
Arlington, VA 22203
Jacksons. White, Jr., Esq.
Mark R. Graham, Esq.
White, Elliott and Bundy
P.O. Box 429
Abingdon, VA 24210
Robert c. Wilson, Esq.
Wilson & Cape
105 s. Commercial
P.O. Box 544
Harrisburg, IL 62946
Joseph A. Yuhas, Esq.
R.D. #1, Box 40
Barnesboro, PA 15714

Revised 10/3/91

1761

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

OOT 181991
CONTEST PROCEEDINGS

DOTSON & RIFE COAL CO., INC.,
Contestant

v.

Docket No. KENT 91-670-R
through KENT 91-678-R

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

Mine No. 1

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SFETY ANO HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

Docket No. KENT 91-1200
A.C. No. 15-05417-035320
:

Mine No. 1

DOTSON & RIFE COAL CO., INC.,
Respondent

ORDER STAYING PROCEEDINGS
On September 27, 1991, Counsel for Contestant/Respondent
filed a motion to stay further proceedings in these cases. As
grounds for the motion Contestant/Respondent sta~es that it has
entered into an agreement to plead guilty to a charge of
conspiracy to defraud the Mine Safety and Health Administration
connection with~Contestant/Respondent 1 s dust sampling program.
As part of the plea bargain agreement, the Secretary of Labor has
agreed to move to dismiss any pending civil penalty proceedings
for violations of the laws governing the dust sampling program.
The motion states that Counsel for the Secretary consents to
the entry of an order staying these proceedings.
Premises consideredu the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
Contestant/Respondent have been concluded.

j
1762

,I p,1

/

'

11",,lc.CS ,,+1._,·t'c)r:Lz. :'le/'-

James A. Broderick
Administrative Law Judge

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

'

OCT 181991
SECRETARY OF LABOR,
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
BLACK NUGGET MINING, INC.,
Respondent

.•
••
..•••
•
:
.

CIVIL PENALTY PROCEEDING
Docket No. VA 91-466
A.C. No. 44-04559-03565D
Mine No. 1

••

ORDER STQ:ING PROC£EDIN'GS
On September 27, 1991, Counsel for Respondent filed a motion
to stay further proceedings in these cases. As grounds for the
motion Respondent states that it has entered into an agreement to
plead guilty to a charge of conspiracy to defraud the Mine Safety
and Health Administration in connection with Respondent's dust
sampling program. As part of the plea bargain agreement, the
Secretary of Labor has agreed to move to dismiss any pending
civil penalty proceedings for violations of the laws governing
the dust sampling program.
The motion states that Counsel for the Secretary consents to
the entry of an order staying these proceedings.
Premises consideredu the motion is GRANTED. The above
proceedings are STAYED until all crimi~l proceedings concerning
Respondent have been concluded.

/,1-U!~ .A---1~:e::1r4:,,_,·~Z
James A. Broderick
Administrative Law Judge
Distributiong
Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, VA 24614 (Certified Mail)
Douglas N. White, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 {Certified
Mail)
Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd.,
Arlington, VA 22203

1763

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

OCT 181991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
AMERICAN CARBON CORPORATION,
Respondent

.•••
.•
..
.
.
.
.

CIVIL PENALTY PROCEEDING
Docket No. VA 91-468
A.C • No. 46-06547-035140
Mine No. 1

ORDER STAYING PROCEEDINGS
On September 27, 1991, Counsel for Respondent filed a motion
to stay further proceedings in these cases. As grounds for the
motion Respondent states that it has entered into an agreement to
plead guilty to a charge of conspiracy to defraud the Mine Safety
and Health Administration in connection with Respondent's dust
sampling program. As part of the plea bargain agreement, the
Secretary of Labor has agreed to move to dismiss any pending
civil penalty proceedings for violations of the laws governing
the dust sampling program.
The motion states that Counsel for the Secretary consents to
the entry of an order staying these proceedings.
Premises consideredu the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
Respondent have been concluded.
J

Jk!

. '

I

/fd,,,tii.£6 µJvZ) ti£,,z.:4/~

J' James
A. Broderick
Administrative Law Judge
Distributiong
Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, VA 24614 (Certified Mail)
Douglas N. White, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd.,
Arlington, VA 22203

1764

~EDER.AL MINE SAFETY AND HEALTH RE"l.EW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUOG~S
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

OOT 181991 ·
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
GOOD TIMES MINING, INC.,
Respondent

.
.:
.

Docket No. VA 91-462
A.C. No. 44-06333- 035Q8n

:

Mine No. 2

CIVIL PENALTY PROCEEDING

:

ORDER STAYING PROCEEDINGS
On September 27, 1991, Counsel for Respondent filed a motion
to stay further proceedings in these cases. As grounds for the
motion Respondent states that it has entered into an agreement to
plead guilty to a charge of conspiracy to defraud the Mine Safety
and Health Administration in connection with Respondent's .dust
sampling program. As part of the plea bargain agreement, the
Secretary of Labor has agreed to move to dismiss any pending
civil penalty proceedings for violations of the laws governing.
the dust sampling program.
·
The motion states that Counsel for the Secretary consents to
the entry of an order staying these proceedings.
Premises considered, the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
Respondent have been concluded.

t~:..L-s~ /1./'!fi,1}lfb:;ieA_
:/d;
G
I

,

James A. Broderick
Administrative Law Judge

Distribution~

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, VA 24614 (Certified Mail)
'(

•

1

Douglas N. White, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., 'Arlington, VA 22203 (Certified
Mail)
.
Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd.,
Arlington, VA 22203

1765

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

DOT 18 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.
..

CIVIL PENALTY PROCEEDING

:

Mine No. 3

Docket No. KENT 91-1051
A.C. No. 15-16410-035140

Vo

GOOD TIMES MINING, INC.,
Respondent
ORDER STAYING PROCEEDINGS
On September 27, l991, Counsel for Respondent filed a motion
to stay further proceedings in these cases. As grounds for the
motion Respondent states that it has entered into an agreement to
plead guilty to a charge of conspiracy to defraud the Mine Safety
and Health Administration in connection with Respondent's dust
sampling program. As part of the plea bargain agreement, the
Secretary of Labor has agreed to move to dismiss any pending
civil penalty proceedings for violations of the laws governing
the dust sampling program.
The motion states that counsel for the Secretary consents to
the entry of an order staying these proceedings.
Premises considered, the motion is GRANTED.
The above
proceedings are STAYED until all criminal proceedings concerning
Respondent have been concluded.
,,·?

/ft1ik..t!6 ~;z,dut ld....__
(/ ~ames A. Broderick
,.
Administrative Law Judge
Distribution~

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
street, Drawer 1560, Grundy, VA 24614 (Certified Mail)
Douglas N. White, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd.,
Arlington, VA 22203

1766

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

OOT 18 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.
.

CIVIL PENALTY PROCEEDING
Docket No. VA 91-458
A.C. No. 44-02241-03516D

v.

Mine No. 1
LUCKY L & L COAL CO., INC.,
Respondent
ORDER STAYING PROCEEDINGS
On September 27, 1991, Counsel for Respondent filed a motion
to stay further proceedings in these cases. As grounds for the
motion Respondent states that it has entered into an agreement to
plead guilty to a charge of conspiracy to defraud the Mine Safety
and Health Administration in connection with Respondent's dust
sampling program. As part of the plea bargain agreement, the
Secretary of Labor has agreed to move to dismiss any pending
civil penalty proceedings for violations of the laws governing
the dust sampling program.
The motion states that Counsel for the Secretary consents to
an order staying these proceedings •.
Premises consideredv the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
Respondent have been concluded.
l

,f_,/1

./~/)'./

;:/i/A!Ui 5 /H:.JvZJtuV;/iefL(/ James A. Broderick
Administrative Law Judge
Distribution~

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Streetu Draw.er 1560, Grundy, VA 24614 (Certified Mail)
Douglas N. White, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 {Certified
Mail)
Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd.,
Arlington, VA 22203
1767

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

OOT 18 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. VA 91-460
A.C. No. 44-04862-035410

v.

Mine No. 2
L & L ENERGY OF HURLEY, INC.,
Respondent
ORDER STAYING PROCEEDINGS
On September 27, ,1991, Counsel for Respondent filed a motion
to stay further proceedings in these cases. As grounds for the
motion Respondent states that it has entered into an agreement to
plead guilty to a charge of conspiracy to defraud the Mine Safety
and Health Administration in connection with Respondent's dust
sampling program. As part of the plea bargain agreement, the
Secretary of Labor has agreed to move to dismiss any pending
civil penalty proceedings for violations of the laws governing
the dust sampling program.
The motion states that Counsel for the Secretary consents to
the entry of an order staying these proceedings.
Premises consideredu the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
Respondent have been concluded.

,ftuJ;;u-o )-f!l11xk.rvL
,J ~ames A. Broderick

·

Administrative Law Judge

Distribution~

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, VA 24614 (Certified Mail)
Douglas N. White, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd.,
Arlington, VA 22203

1768

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

OOT 18 1991

.
..•
.

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

v.

DELBARTON MINING CORP.,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. VA 91-1638
A.C. No. 44-04839-035530
Mine No. 1

:

ORDER STA:YING PROCEEDINGS
On September 27, 1991, Counsel for Respondent filed a motion
to stay further proceedings in these cases. As grounds for the
motion Respondent states that it has entered into an agreement to
plead guilty to a charge of conspiracy to defraud the Mine Safety
and Health Administration in connection with Respondent's dust
sampling program. As part of the plea bargain agreement, the
Secretary of Labor has agreed to move to dismiss any pending
civil penalty proceedings for violations of the laws governing
the dust sampling program.
The motion states that Counsel for the Secretary consents to
entry of an order staying these proceedings.
Premises consideredv the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
Respondent have been concluded.

P.,.,.} / ,,,,:,,;;,;:._

.d i l ,:' ·"'
/}
/'/, /v11U-6 /~//f:}i/v(JL-,, -v
<

ames A.· Broderick
Administrative Law Judge
Distribution~

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, VA 24614 (Certified Mail)
Douglas N. White, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd.,
Arlington, VA 22203
1769

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

001 1s199l
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

BR D COAL COMPANY, INC.,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. VA 91-482
A.C. No. 44-06030-03546D

:

Mine No. 2

..

ORDER STAYING PROCEEDINGS
on September 27, 1991, Counsel for Respondent filed a motion
to stay further proceedings in these cases. As grounds for the
motion Respondent states that it has entered into an agreement to
plead guilty to a charge of conspiracy to defraud the Mine Safety
and Health Administration in connection with Respondent's dust
sampling program. As part of the plea bargain agreement, the
Secretary of Labor has agreed to move to dismiss any pending
civil penalty proceedings for violations of the laws governing
the dust sampling program.
The motion states that Counsel for the Secretary consents to
the entry of an order staying these proceedings.
Premises consideredv the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
Respondent have been concluded.

!/wtu.L~ .-~€v&z.1,e/_
{) James A. Broderick
Administrative Law Judge
Distribution~

Ronald L. King, Esq. Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, VA 24614 (Certified Mail)
1

Douglas N. White, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd.,
Arlington, VA 22203

1770

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

OCT 18 1991
DOUBLE L COAL COMPANY,
contestant

..:

CONTEST PROCEEDING

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

...

Mine No. 2

v.

Docket No. VA 91-432-R
through VA 91-445-R

ORDER STAYING PROCEEDINGS
On September 27, 1991, counsel for Contestant/Respondent
filed a motion to stay further proceedings in these cases. As
grounds for the motion Contestant/Respondent states that it has
entered into an agreement to plead guilty to a charge of
conspiracy to defraud the Mine Safety and Health Administration
in connection with Contestant/Respondent's dust sampling program.
As part of the plea bargain agreement, the Secretary of Labor has
agreed to move to dismiss any pending civil penalty proceedings
for violations of the laws governing the dust sampling program.
The motion states that Counsel for the Secretary consents to
the entry of an order staying these proceedings.

Premises consideredu the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
Contestant/Respondent have been concluded.
.

11,/)'1

,../

',,1/

tviti.tk:'> /f1 ._/ ;"{}(Jf::",--;.1,~

J

James A. Broderick
Administrative Law Judge

Distributiong
Ronald Lo King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, VA 24614 (Certified Mail)
Douglas N. White, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
slk

1771

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

2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
22041

FALLS CHURCH, VIRGINIA

OCT 18 1991
CONTEST PROCEEDINGS

EDD POTTER COAL COMPANY,
Contestant

v.

Docket No. KENT 91-680-R
through KENT 91-697

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

Mine No. 2

CIVIL PENALTY PROCEEDING

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

Docket. No. KENT 91-1136
A.C. No. 15-05436-03531D

v.
Mine No. 2
EDD POTTER COAL COMPANY,
Respondent
ORDER STAYING PROCEEDINGS
On September 27, 1991, Counsel for Contestant/Respondent
filed a motion to stay further proceedings in these cases. As
grounds for the motion Contestant/Respondent states that it has
entered into an agreement to plead 'guilty to a charge of
conspiracy to defraud the Mine Safety and Health Administration
connection with Contestant/Respondent 1 s dust sampling program.
As part of the plea bargain agreement, the Secretary of Labor has
agreed to move to dismiss any pending civil penalty proceedings
for violations of the laws governing the dust sampling program.
The motion states that Counsel for the Secretary consents to
the entry of an order staying these proceedings.
Premises considered, the motion is GRANTED.
The above
proceedings are STAYED until all criminal proceedings concerning
contestant/Respondent have been concluded.

' .. d: .·rt,;
1

.-v/'I ' . . /' ..-,, ' v·
~· t :u:.5 /tJ/'..J(
,: ?, £, ., "6. (_.

:A

/
'/

1772

James A. Broderick
Administrative Law Judge

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

OCT 18 1991
RUBY HELEN COAL COMPANY,
Contestant

v.

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

••

CONTEST PROCEEDINGS

..

Docket No. WEVA 91-1160-R
through WEVA 91-1161-R

....

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

v.

Mine No. 1

CIVIL PENALTY PROCEEDING
Docket No. WEVA 91-1759
A.C. No. 46-07554-035120
Mine No. 1

RUBY HELEN COAL COMPANY,
Respondent
ORDER STAYING PROCEEDINGS
On September 27, 1991, Counsel for contestant/Respondent
filed a motion to stay further proceedings in these cases. As
grounds for the motion Contestant/Respondent states that it has
entered into an agreement to plead guilty to a charge of
conspiracy to defraud the Mine Safety and Health Administration
in connection with Contestant/Respondentws dust sampling programo
As part of the plea bargain agreement, the Secretary of Labor has
agreed to move to dismiss any pending civil penalty proceedings
for violations of the laws governing the dust sampling program.
The motion states that Counsel for the Secretary consents to
the entry of an order staying these proceedings.
Premises considered, the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
Contestant/Respondent have been concluded.

l

,,.,

,

.!1!~ ~ ,,1-l!JJ~ti~rc~li

1773

James A. Broderick
Administrative Law Judge

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

OOT 18 1991
SHADY LANE COAL COMPANY,
Contestant

:

CONTEST PROCEEDINGS

v.

Docket No. VA 91-367-R
through VA 91-368-R

SECRETARY OF LABOR,
MJ:NE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Mine No. 3

.

SECRETARY OF LABOR,.

CIVIL PENALTY PROCEEDING

.•

MINE SFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. VA 91-491
A.C. No. 44-06549-03507D

v.
Mine No. 3
SHADY' LANE COAL COMPANY,
Respondent

..

ORDER STAYING PROCEEDINGS

on September 27, 1991, Counsel for Contestant/Respondent
filed a motion to stay further proceedings in these cases. As
grounds for the motion Contestant/Respondent states that it has
entered into an agreement to plead guilty to a charge of
conspiracy to defraud the Mine Safety and Health Administration
i~ connection with Contestant/Respondent 1 s dust sampling program.
As part of the plea bargain agreement, the Secretary of Labor has
agreed to move to dismiss any pending civil penalty proceedings
for violations of the laws governing the dust sampling program.
The motion states that Counsel for the Secretary consents to
the entry of an order staying these proceedings.
Premises considered, the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
Contestant/Respondent have been concluded.

-1vi!::l-~~ A--E~?>t~/'{;~~d

/~ James A. Broderick

1

1774

Administrative Law Judge

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

OOT 18 1991
SUNSET LAND & COAL COMPANY,
Contestant

:

CONTEST PROCEEDINGS

v.

Docket No. VA 91-386-R
through VA 91-397-R

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

Mine No. 1

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

CIVIL PENALTY PROCEEDING
Docket No. VA 91-502
A.C. No. 44-06326-03538D

v.

Mine No. 1
SUNSET LAND & COAL COMPANY,
Respondent
ORDER STAYING PROCEEDINGS
On September 27, 1991, Counsel for Contestant/Respondent
filed a motion to stay further proceedings in these cases. As
grounds for the motion Contestant/Respondent states that it has
entered into an agreement to plead guilty to a charge of
conspiracy to defraud the Mine Safety and Health Administration
connection with Contestant/Respondent 1 s dust sampling program.
As part of the plea bargain agreement, the Secretary of Labor has
agreed to move to dismiss any pending civil penalty proceedings
for violations of the laws governing the dust sampling program.
~he

The motion states that Counsel for the Secretary consents to
entry of an order staying these proceedings.

Premises considered, the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
Contestant/Respondent have been concluded.

//7

.

/

~/12,-:/:{.,L''f, /~ J vix:i:.,,z&.!'-/....._
f

tJ

1775

James A. Broderick
Administrative Law Judge

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

OOT 18 1991
CONTEST PROCEEDINGS

SUNRISE MINING, INC.,
Contestant

.
.

v.

Docket No. WEVA 91-1167-R
through WEVA 91-1177-R

.

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

Mine No. l

·crVIL PENALTY PROCEEDING

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

Docket No. WEVA 91-1718
A.C. No. 44-07296-035130

v.
Mine No. 1
SUNRISE MINING, INC.,
Respondent
ORDER STAYING PROCEEDINGS
On September 27, 1991, counsel for Contestant/Respondent
filed a motion to stay further proceedings in these cases. As
grounds for the motion Contestant/Respondent states that it has
entered into an agreement to plead guilty to a charge of
conspiracy to defraud the Mine Safety and Health Administration
in connection with Contestant/Respondent's dust sampling program.
As part of the plea bargain agreement, the Secretary of Labor has
agreed to move to dismiss any pending civil penalty proceedings
for violations of the laws governing the dust sampling program.
The motion states that Counsel for the Secretary consents to
the entry of an order staying these proceedings.
Premises considered, the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
contestant/Respondent have been concluded.
;1

t
1776

f

/'

/1

J

'

q

/

ll~ 'J s ./t1Clr:~ (/J :.,,{/'-

James A. Broderick
Administrative Law Judge

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

OOT 18 1991
CONTEST PROCEEDINGS

RED DOG COAL CORPORATION,
Contestant

Docket No. KENT 91-698-R
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

Mine No. 3-A

ADMINISTRATION (MSHA),

Respondent
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
KINE SFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. KENT 91-1112
A.C. No. 15-15908-035250

v.
Mine No. 3-A
RED DOG COAL CORPORATION,
Respondent
ORDER STAYING PROCEEDINGS

on September 27, 1991, Counsel for Contestant/Respondent
filed a motion to stay further proceedings in these cases. As
grounds for the motion Contestant/Respondent states that it has
entered into an agreement to plead guilty to a charge of
conspiracy to defraud the Mine Safety and Health Administration
i~ connection with Contestant/Respondent 1 s dust sampling program.
As part of the plea bargain agreement, the Secretary of Labor has
agreed to move to dismiss any pending civil penalty proceedings
for violations ot the laws governing the dust sampling program.
The motion states that counsel for the Secretary consents to
t.he entri.J of an order staying these proceedings.
Premises considered, the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
Contestant/Respondent have been concluded.

A
n''
;fa
·'?

l1//,lh~

/.7/ i
11 • 1 ,, /
/'I/~ 1 "..., t.J.!:J,, ._, r.,?-.._

James A. Broderick
Administrative Law Judge

1777

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

OOT 18 1991
RED DOG COAL CORPORATION,
Contestant
v.

.
.

CONTEST PROCEEDINGS
Docket No. VA 91-290-R
through VA 91-292-R

~

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

.

Mine No. 3

CIVIL PENALTY PROCEEDING

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

Docket No. VA 91-524
A.C. No. 44-05547-035380
Mine No. 3

RED DOG COAL CORPORATION,
Respondent

.

ORDER STAYING PROCEEDINGS
On September 27, 1991, Counsel for Contestant/Respondent
filed a motion to stay further proceedings in these cases. As
grounds for the motion Contestant/Respondent states that it has
entered into an agreement to plead guilty to a charge of
conspiracy to defraud the Mine Safety and Health Administration
connection with Contestant/Respondent 1 s dust sampling program.
As part of the plea bargain agreement, the secretary of Labor has
agreed to move to dismiss any pending civil penalty proceedings
for violations of the laws governing the dust sampling program.
The motion states that counsel for the Secretary consents to
the entry of an order staying these proceedings.
Premises considered, the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
Contestant/Respondent have been concluded.

l

I

,"')

'I.

l~'Lrt:5 µ.P/vrJ(U-4./l,{/{_

/

1778

James A. Broderick
Administrative Law Judge

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

OOT 18 1991
CONTEST PROCEEDINGS

CLASSIC COAL CORPORATION,
contestant

v.

Docket No. VA 91-306-R
through VA 91-309-R

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

Mine No. 1

CIVIL PENALTY PROCEEDING

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

Docket No. VA 91-484
A.C. No~ 44-06195-03529D

v.
Mine No. 1
CLASSIC COAL CORPORATION,
Respondent
ORDER STAYING PROCEEDINGS
on September 27, 1991, counsel for Contestant/Respondent
filed a motion to stay further proceedings in these cases. As
grounds for the motion Contestant/Respondent states that it has
entered into an agreement to plead guilty to a charge of
conspiracy to defraud the Mine Safety and Health Administration
in connection with Contestant/Respondent 1 s dust sampling program.
As part of the plea bargain agreement, the Secretary of Labor has
agreed to move to dismiss any pending civil penalty proceedings
for violations of the laws governing the dust sampling program.
The motion states that Counsel for the Secretary consents to
the entry of an order staying these proceedings.
Premises considered, the motion is GRANTED. The above
proceedings are STAYED until all criminal proceedings concerning
contestant/Respondent have been concluded.
,'/

/

ja.A~'..t:f ~1/r-·dt._.1:~1\_
(}

1779

James A. Broderick
Administrative Law Judge

1780