JULY 1990
COMMISSION DECISIONS
07-24-90
07-26-90
07-27-90

D.Thomas & G. Isaacs v. Ampak Mining, Inc.
Beech Fork Processing, Inc.
Midwest Minerals, Inc.

KENT 89-13-D
KENT 90-87
CENT 89-67-M

Pg. 1367
Pg. 1371
Pg. 1375

PENN 90-21-D
CENT 90-39-M
SE
89-17-R
SE
89-113
PENN 90-47-R
WEST 90-25
WEST 90-52
WEVA 90-78-D

Pg. 1381
Pg. 1382
Pg. 1384
Pg. 1390
Pg. 1423
Pg. 1429
Pg. 1431
Pg. 1433

ADMINISTRATIVE LAW JUDGE DECISIONS
07-05-90
07-06-90
07-06-90
07-06-90
07-06-90
07-06-90
07-06-90
07-06-90
07-06-90
07-09-90
07-11-90
07-12-90
07-13-90
07-17-90
07-20:--90
07-20-90
07-24-90
01-27-90
07-27-90
07-31-90

John Etheridge v. Valley Coal Company
Homestake Mining Company
Jim Walter Resources, Inc.
U.S. Steel Mining Company, Inc.
Consolidation Coal Company
Energy Fuels Coal Inc.
Energy Fuels Coal Inc.
Sec. Labor for David Hollis v. Consolidation
Coal Company
Sec. Labor for David Hollis v. Consolidation
Rick Stevenson v. Beaver Creek Coal Company
Sec. Labor for Gilbert Wisdom v. F&W Mines, Inc.
Randy Cunningham v. Consolidation Coal Co.
Bentley Coal Company
Jim Walter Resources(Supplemental Decision)
B.eaver Creek Coal Company
Energy Fuels Mining Company
Joseph Wietholter v. Quality Ready Mix, Inc.
Southern Ohio Coal Company
FMC Wyoming Corporation
Energy Fuels Mining Company

WEVA 90-110-D
Pg. 1435
WEST 89-130-D
Pg. 1436
SE
90-102-DM . Pg. 1438
PENN 90-46-D
Pg. 1440
WEVA 90-36
Pg. 1450
SE
89-42
Pg. 1451
WEST 89-23-R
Pg. 1452
WEST 89-440
Pg. 1468
LAKE 90-17-DM
Pg. 1470
LAKE 90-37-R
Pg. 1474
WEST 86-43-RM
Pg. 1478
WEST 90-211-R
Pg. 1484

ADMINISTRATIVE LAW JUDGE ORDERS
07-06-90
07-23-90

UMWA on behalf of Gilbert Roybal v.
Wyoming Fuel Company
Canyon Country Enterprises d/b/a Curtis
and & Gravel

WEST 90-118-D

Pg. 1488

WEST 90-165-DM Pg. 1490

JULY 1990
Review was granted in the following cases during the month of July:
Consolidation Coal Company v. Secretary of Labor, MSHA, Docket Nos. WEVA 90-3,
WEVA 89-234-R, etc. (Chief JudgeMerlin, May 24, 1990)
Review was denied in the following cases during the month of July:
Secretary of Labor, MSHA v. Mountain Parkway Stone, Inc., Docket No. KENT
89-27-M. (Judge Weisberger, May 30, 1990)
Arnold Sharp v. Big Elk Creek Coal Company, Docket No. KENT 89-147-D.
(Reconsideration of Commission order dated June 13, 1990)
Kathleen I. Tarmann v. International Salt Company, Docket No. LAKE 89-56-DM.
(Interlocutory Review of Judge Melick's Order)

CO!v'T..MISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, &TH FLOOR
WASH1NGTON, D.C. 20006

July 24, 1990

DAVID THOMAS AND
GEORGE ISAACS
Docket Nos. KENT 89-13-D
KENT 89-14-D

v.

AMPAK MINING, INC.

BEFORE:

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

DECISION

BY THE COMMISSION:
In this discrimination proceeding ar1s1ng under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1988) ("Mine
Act" or "Act"), complainants David Thomas and George Isaacs have sought
discretionary review of that portion of the supplemental remedial
decision of Commission Administrative Law Judge Gary Melick in which the
judge denied their post-trial motion to proceed individually, on the
basis of an alter ego theory, against Geary Burns and Peggy A. Kretzer,
the alleged owners of respondent Ampak Mining, Inc. ("Ampak").
12 FMSHRC 428 (March 1990)(ALJ). In addition, the complainants have
moved the Commission, in light of its decision in Ronald Tolbert v.
Chaney Creek Coal Co., 12 FMSHRC 615 (April 1990) ("Tolbert II"), to
remand this matter to the judge for reconsideration of his denial of
their post-trial motion. By previous orders, we granted the
complainants' petition for review and suspended briefing. Ampak has not
responded to the complainants' motion to remand. For the reasons that
follow, we grant the complainants' motion, vacate that portion of the
judge's decision denying the complainants' post-trial motion, and remand
this matter to the judge for further appropriate proceedings.
The relevant procedural history may be summarized briefly. Thomas
and Isaacs filed with the Commission, pursuant to section 105(c)(3) of
the Mine Act, 30 U.S.C. § 815(c)(3), discrimination complaints against
Ampak, and the proceedings were consolidated for hearing and disposition
before Judge Melick. In his decision on the merits, the judge concluded
that Ampak had discriminated against the complainants in violation of
section 105(c)(l) of the Act by laying off the complainants as a result
of their protected activities. 11 FMSHRC 2552 (December 1989)(ALJ). At

1367

the direction of the judge, the parties stipulated to the amount of back
pay, attorney's fees and expenses to be awarded the complainants.
Subsequently, the complainants moved the judge for leave to proceed
individually against Ampak's asserted owners, Geary Burns and Peggy A.
Kretzer, on an alter ego theory. The complainants have asserted that
Ampak will be unable to provide them the stipulated relief because the
company is no longer in.business, has no assets, and is burdened with
substantial debt. The complainants have argued that the owners and the
corporation share a unity of interest and are not, in fact, separate
legal personalities.
In his remedial decision, the judge awarded complainants the
stipulated damages but denied their motion to proceed individually
against the owners. 12 FMSHRC at 430. The judge relied upon the
Commission's decision in Ronald Tolbert v. Chaney Creek Coal Corp.,
9 FMSHRC 1847 (November 1987)("Tolbert I"). There, the Commission
denied a discrimination complainant's motion, proffered after the
decisions in question had become final, to proceed against an individual
owner on an alter ego theory. The Commission held that the course of
action was for the complainant to seek the Secretary of Labor's
enforcement of the final Commission decisions.
After issuance of the judge's remedial decision in this matter,
the Commission issued its decision in Tolbert II. Tolbert II arose
after the complainant had heeded the Commission's directions in Tolbert
!, and had invoked the Secretary's representation to secure summary
enforcement of the Commission's final orders in the United States Court
of Appeals for the Sixth Circuit. See 12 FMSHRC at 617. Nevertheless,
th~ respondent had still failed to comply with the enforced orders.
Among other things, the Commission concluded in Tolbert II that "[i]n
light of the remedial purposes of section 105(c) [of the Mine Act], ...
the Commission, in appropriate cases and on such terms as are just, may
reopen a discrimination case for reasonable supplemental [Commission]
proceedings in aid of compliance." 12 FMSHRC at 618. Pursuant to that
principle, the Commission reopened Tolbert to consider the complainant's
request for a determination as to the individual corporate owner's
possible alter ego status. 12 FMSHRC at 619.
The Commission noted that the individual corporate owner had never
been a party to the proceeding. 12 FMSHRC at 619. Accordingly, in
remanding the matter to the judge, the Commission directed him to decide
whether the complainant should have determined the alleged alter ego's
status at a more timely juncture of the litigation and to rule on the
precise legal theory and authority upon which any joinder might now be
justified. 12 FMSHRC at 619. The Commission further required that the
alleged alter ego be afforded the opportunity to be specially heard on
the issues affecting his status and, if made a party, be heard on any
and all liability or remedial issues affecting him. 12 FMSHRC at 61920.
Here, the motion to join the alleged individual owners was made
before Judge Melick's final decision in this matter. As in Tolbert II,
the complainants hav~ raised an alter ego issue that may bear on their
ability to recover the stipulated damages. In light of Tolbert II, we

1368

conclude that the complainants• claims of liabil~ty on the part of
Ampak 1 s owners, based on an alter ego theory, should be considered by
the judge. As in Tolbert II, we remand this proceeding to the judge for
needed factual findings and legal analysis as to whether Burns and
Kretzer may be brought into this proceeding at this stage, whether the
complainants should have determined the owners' alleged alter ego status
at a more timely juncture, and to determine the precise legal theory and
authority upon which such joinder may now be justified. See Tolbert II,
12 FMSHRC at 619. Ampak's owners shall be specially heard on these
issues. If the judge concludes that they may properly be made parties
to these supplemental compliance proceedings, they shall 11 continue to be
afforded full opportunity to participate on any and all liability or
remedial issues affecting them. 11 Tolbert II, 12 FMSHRC at 619-20.
For the foregoing reasons, we vacate that portion of the judge's
remedial order denying complainants' motion to proceed against Burns and
Kretzer, and we remand this matter to the judge for proceedings
consistent with this opinion.

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· Richard V. Backley, Commissioner V
./"l

,.~~ d'.
A. Doyle,

1369

•

Distribution
Tony Oppegard, Esq.
Appalachian Research & Defense
Fund of Kentucky, Inc.
P.O. Box 360
Hazard, Kentucky 41701
Geary Burns
P. 0. Box 1183
Paintsville, Kentucky

41240

Peggy A. Kretzer
HC 83, Box 173
River, Kentucky 41254
C. Graham Martin, Esq.
P.O. Box 1375
Prestonsburg, Kentucky

41653

Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1370

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

July 26, 1990

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. KENT 90-87
KENT 90-88
KENT 90-89

v.

BEECH FORK PROCESSING, INC.

BEFORE:

Backley, Doyle and Nelson, Commissioners

ORDER

BY Backley, Doyle and Nelson, Commissioners
In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1988)("Mine
Act"), Commission Chief Administrative Law Judge Paul Merlin issued an
Order of Default on June 18, 1990, finding Beech Fork Processing, Inc.
("Beech Fork") in default for failure to answer the Secretary of Labor's
civil penalty petitions and the judge's show cause orders in the subject
cases. The judge assessed for all three cases the Secretary's proposed
civil penalties of $10,123. By letter dated July 12, 1990, addressed to
Judge Merlin, Beech Fork petitioned the Commission for an opportunity to
continue its contest of MSHA's proposed penalties in the subject cases.
Attached to Beech Fork's July 12 letter is a letter dated June 11, 1990,
from Beech Fork to the Department of Labor's Mine Safety and Health
Administration ("MSHA") that appears to be Beech Fork's answer to the
Secretary of Labor's civil penalty proposal filed in Docket No. KENT 9089. We deem Beech Fork's July 12 letter and attached letter to
constitute a timely petition for discretionary review of the judge's
default order. For the reasons that follow, we grant the petition,
vacate the default order, and remand for further proceedings.
The judge's jurisdiction over this case terminated when his
default order was issued on June 18, 1990. 29 C.F.R. § 2700.65(c).
Under the Mine Act and the Commission's procedural rules, once a judge's
decision has issued, relief from the decision may be sought by filing
with the Commission a petition for discretionary review within 30 days
of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). In its
July 12 letter, Beech Fork seeks relief from the default order and
explains that it did not timely respond to the show cause orders due to
certain changes in its personnel. Beech Fork's letter was received by

1371

the Commission on July 17, 1990. Under the circumstance'", we will treat
Beech Fork'.s July 12 letter as a timely filed petition for discretionary
review. ~, Patriot Coal Co., 9 FMSHRC 382, 383 (March 1987).
Beech Fork alleges that because of personnel changes, it was
unable to timely respond to the judge's show cause orders. The
Commission has generally afforded relief from default upon a showing of
inadvertence, mistake, or excusable neglect. ~, Blue Circle
Atlantic, Inc., 11 FMSHRC 2144, 2145 (November 1989). We are unable, on
the basis of the present record, to evaluate the merits of Beech Fork's
assertions, but. in the interest of justice we will permit Beech Fork to
present its position to the judge, who shall determine whether
appropriate grounds exist for excusing its failure to timely respond.
See, ~, A.H. Smith Stone Company, 11 FMSHRC 2146, 2147 (November
1989).

1372

For the foregoing reasons, we grant Beech Fork's petition for
discretionary review, vacate the judge's default order, and remand this
matter to the judge for appropriate proceedings. Beech Fork is reminded
to file documents connected with this proceeding with the judge and to
serve counsel for the Secretary with copies of any of its filings.
29 C.F.R. §§ 2700.S(b), 2700.7. 2/

f![;LLL //,~ .,£~"-,
.Z ;!'

Richard V. Backley, Commissioner ;--

0(~ t!,~Lc,

J6yce A. Doyle, )[Commissioner

£tg
~~I

.,

UJ&--n_/

L. Clair Nelson, Commissioner

~/

Pursuant to 30 U.S.C. § 823(c), we have constituted ourselves as a
panel of three members to exercise the powers of the Commission in this
matter.

1373

Distribution
James H. ~ooth, President
Beech Fork Processing, Inc.
P.O. Box 190
Lovely, Kentucky 41231
Joseph B. Luckett, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd.
Suite B-201
Nashville, Tennessee 37215
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1374

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

July 27, 1990
SECRETARY OF LABOR,
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 89-67-M

v.
MIDWEST MINERALS, INC.
Before:

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

BY THE COMMISSION:
At issue in this civil penalty proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (1988) ("Mine
Act" or "Act"), is whether there is support for certain findings of the
trial judge. This case arose in the wake of four citations issued to
:Midwest Minerals Inc. (Midwest) on August 11, 1988, pursuant to section
104(a) of the 11ine Act. 30 U.S.C. §814(a). Each citation charges a violation of 30 C.F.R. §56.9002 which stated that: "Equipment defects affecting
safety shall be corrected before the equipment is used." 1/ The equipment
defect cited was an inoperative grade retarder on each of-four haul trucks.
A hearing in this matter was held on September 28, 1989, before
Administrative Law Judge Gary Melick. Midwest appeared pro se through its
safety director, who was also Midwest's sole witness. The Secretary also
presented only one witness, Robert Earl, the MSHA inspector who issued the
subject citations.
In his decision, Judge Melick upheld the violations and found that they
were significant and substantial, that Midwest had consciously avoided abating
the violations and that Midwest was highly negligent. The judge assessed a
$300.00 penalty for each of the four violations. (The Secretary had proposed
a $20.00 penalty for each violation). Midwest's petition for discretionary
review of the judge's decision was filed pro~ through the company's

l../

Shortly after these citations were issued, 30 C.F.R. 56.9002 was
replaced by a new standard, 30 C.F.R. 56.14100(b), which provides:
"Defects on any equipment, machinery, and tools that affect safety
shall be corrected in a timely manner to prevent the creation of a
hazard to persons."

1375

president, Richard Atkinson. After the Commission granted Midwest's petition
for review. Midwest retained legal counsel who filed a brief in support of the
petition for discretionary review and a motion to have the matter remanded to
the administrative law judge and reopened for the taking of additional evidence.
In seeking a remand and a reopening of the record, Midwest relies on Fed.
R. Civ. P. 60(b)(l) and (6)("Rule 60(b)"). 2/ The essence of Midwest's claim
for relief is that its p~o se representative at the hearing before the judge
failed to introduce materiar-evidence relevant to Midwest's defense against
the Secretary's allegation of violation, failed to interpose objections
during the presentation of the Secretary's case, and failed to cross-examine
the Secretary's witness or file a post-hearing brief.
Thus, Midwest asserts that its representative failed to properly present
its position at the hearing. Further, Midwes"t links this failure to emotional
and medical problems allegedly suffered by its representative, and purportedly
manifesting themselves and coming to Midwest's attention subsequent to the
hearing.
The Secretary opposes Midwest's motion to remand and reopen. The Secretary essentially argues that Midwest consciously chose a non-lawyer as its
representative at the hearing and cannot now belatedly invoke Rule 60(b) to
avoid the consequences of the adverse decision Midwest received from the
administrative law judge. The Secretary asserts that to grant Midwest's
request to reopen this proceeding for the taking of additional evidence would
be tantamount to giving Midwest a "second turn at bat." Sec. Br. at 5.
We agree with the Secretary that, under the circumstances presented, a reopening of the record pursuant to Fed. R. Civ. P 60(b) is not warranted. Under
the Mine Act, proceedings before this independent adjudicatory agency are adversarial proceedings conducted in conformity with the procedural dictates of
the Act, applicable provisions of the Administrative Procedure Act, and the
Commission's Rules of Procedure, 29 C.F.R. Part 2700. Although these proceedings are legal in nature, the Commission's rules permit parties appearing
before the Commission to be represented by non-attorney representatives.
29 C.F.R. § 2700.3. In fact, it is not uncommon for parties to choose to
appear before the Commission without the assistance of an attorney, to
diligently present their evidence and arguments, and to prevail on the merits.
2/

Rule 60(b) provides in pertinent part:
On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;

*****
(6) any other reason justifying relief from the operation
of the judgment.

1376

On the other hand, it is also not uncommon for a party choosing to appear

without l•;,,al counsel to fail to present its case in a manner which best preserves all available legal rights that could contribute to the successful
advancement of the party's cause. This consequence, which should not be
entirely unexpected, directly flows from the party's choice of its
representative.
Because the adequacy of a party's representation at a hearing is linked
to the party's choice of its representative, we must look askance at any
request that Rule 60(b) relief be granted because the party's chosen
representative is claimed to have performed ineffectually at the hearing
before the judge resulting in an adverse decision. Routinely granting such
relief would, as the Secretary has suggested, unfairly provide a losing party
"a second turn at bat". Here Midwest is pursuing a claim that a medical
condition manifesting itself subsequent to a representative's appearance at
a hearing should excuse his "poor" performance at the hearing. Such a claim
would necessitate a collateral inquiry into such person's medical fitness at
the time of the hearing, a diversion we find unnecessary in this case.
Instead, we find more pertinent a review of the proceedings as conducted
before the administrative law judge. Our review of the transcript in this
proceeding does indeed reveal, from a trained legal point of view, a rather
passive participation by Midwest's lay representative. We cannot say, however,
that his representation was totally ineffectual or markedly different from the
caliber of pro se representation frequently demonstrated in proceedings before
the Commission.~More importantly, we find nothing suggestive of the type of
mistake or excusable neglect that is contemplated by Rule 60(b) as grounds for
obtaining relief from a judgment. It is also important to note that even
after the judge's adverse decision was rendered, Midwest nevertheless chose
to file its appeal of the judge's decision through a different lay
representative, whose pro se petition might also be viewed as failing to
preserve all legal arguments that otherwise may have been available to Midwest
in this appeal
For these reasons, in the exercise of our discretion, we conclude that a
reopening of this proceeding on the theory advanced here is unwarranted and
would set an unwise precedent for proceedings conducted before this Commission.
Accordingly, Midwest's motion to reopen and remand this proceeding for the
taking of additional evidence is denied. 2,./
In its petition for discretionary review Midwest makes several challenges
which can be addressed summarily. Midwest challenges the judge's finding that,
3/
The Secretary's motion to strike an attachment to Midwest's petition for
discretionary review, and attachments to its brief and portions of the brief
itself, has been considered, as has Midwest's opposition thereto. Upon consideration we grant the motion to strike the attachment to the petition for
discretionary review. We deny the motion to strike the attachments to the
brief insofar as they were submitted in connection with Midwest's motion to
reopen. We grant the motion to strike those portions of the brief addressing
the merits of the case which refer to the attachments and other evidence not
entered into the record before the judge.

1377

during a compliance assistance visit (C.A.V.), it did not dispute MSHA's
position that inoperative grade retarders affect safety. Mid.,""?st also
asserts that: the inspector who issued the citations did so out of animus
towards it; the cited trucks were all purchased as used vehicles; the
trucks came with disconnected grade retarders; Midwest employees misuse
the retarders; grade retarders can be a hazard in themselves; and that it
is common mining practice to have the devices disconnected.
There is no evidentiary support in the record for any of these
contentions. 4/ Furthermore, all of these matters were raised for the first
time in Midwest's petition for review and therefore cannot be considered by
the Commission. Ozark-Mahoning Co., 12 FMSHRC 376, 379 (March 1990); Union
Oil Co. 11 FMSHRC 289, 301 (March 1989).
Midwest also challenges the judge's finding that the cited trucks were
moved out of the MSHA district in which they were cited in order to avoid
repairing the retarders. In his decision the judge states: "Moreover
apparently to avoid making the repairs the cited trucks were moved out of
the MSHA district in which they had been cited." 11 FMSHRC at 2172. Midwest
asserts that the judge's finding that the operator moved its trucks in order
to avoid abatement is not supported by substantial evidence. We agree. The
record contains no evidence that Midwest's movement of its equipment subsequent
to the issuance of the citations at issue was an attempt to avoid compliance
with the Mine Act. At the hearing the Secretary did not assert that Midwest
was engaging in intentional avoidance of abatement. Rather, Inspector Earl
testified that the period between the C.A.V. and the date the citations were
issued was insufficient time for Midwest to repair the retarders. Tr. 27-28.
Also, Earl extended the time for abatement of the citations because Midwest
informed him that they intended to cont~st the citations. Tr. 28. Further,
Earl explained that while the trucks had been moved to another MSHA District,
they were moved because Midwest's operation was a portable one that moved
among various locations. Tr. 30. In short, the record establishes that
Midwest's movement of its equipment was not an attempt to avoid compliance,
but was consistent with the very nature of the operation. ~/
In her brief on review, the Secretary asserts that the judge's finding
that Midwest was attempting to avoid repair of the retarders was a permissible
inference. Although inferences may be relied on where appropriate, "any such
inference ••• must be inherently reasonable and there must be a rational
connection between the evidentiary facts and the ultimate fact inferred."
Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2153 (November 1989). Measured
Midwest's safety director did testify that it had been Midwest's practice
over a fifteen year period to disconnect the devices and that in so doing the
operator had not been previously cited. Such testimony, however, cannot be
extrapolated to indicate a widespread industry practice.

!!_/.

5/
Midwest's assertion at the hearing that a different MSHA district did not
subsequently cite the trucks for the disconnected retarders was intended to
show inconsistent MSHA enforcement, not that the trucks had been moved for
the purpose of obtaining a different enforcement result.

1378

against this standard, we find that the facts of record regarding the reasons
for nonabatement militate against utilization of the infE.:ence sought by the
Secretary.
On review Midwest vigorously argues that the judge's erroneous conclusion
as to intentional avoidance of compliance had a serious impact upon the judge's
evaluation of the negligence criterion relevant to assessment of the civil
penalty. 30 U.S.C. § 820(i). We agree.

In arriving at his conclusion with respect to negligence the judge states,
"In any event the failure of Midwest to have repaired the defective grade retarders before the inspection at bar and the continued use of the trucks without grade retarders therefore constitutes high negligence." 11 FMSHRC at 2172.
That conclusion ignores, however, the testimony by Inspector Earl (noted earlier)
that there was insufficient time between the C.A.V. and the enforcement inspection for Midwest to have completed the repairs, Tr. 28, and that he had granted
a 39 day extension of the time for abatement because Midwest intended to request
a conference with the agency to discuss the matter of the grade retarders and
the citations. Id.
Also, Midwest's safety director testified that Midwest had not been cited
previously for a lack of grade retarders and that, in the week before the
hearing, he was informed by MSHA Inspector Ramirez that the trucks had not
been cited by MSHA for lack of grade retarders during their operation in Kansas.
Tr. 34. Inspector Earl stated that he considered Midwest's negligence "moderate"
since, while in the Kansas area, the trucks "apparently have been allowed to go
ahead with the retarders unhooked." Tr. 27. 6/ As we have recently observed
in a similar context, "[t]he fact that seemingly conflicting MSHA policies
left [the operator] in doubt as to what was required for compliance with [a
standard] is a factor which militates against finding that [the operator's]
conduct" was of an aggravated nature. Utah Power & Light Co., 12 FMSHRC 972,
(May 1990).
In the circumstances presented, we conclude that substantial evidence
does not support the judge's finding of high negligence and that the inspector's finding of moderate negligence was appropriate.

6/
The judge also recognized the inconsistency in enforcement, as reflected
by his statement that "[rn]aybe MSHA ought to get together and decide what they
ought to do." Tr. 36.

1379

Therefore we vacate the judge's finding ,of high negl~gence. We find
the penalty amount proposed by the Secretary to be appropriate and we
accordingly assess a penalty of $20.00 for each violation. See Southern
Ohio Coal Company, 4 FMSHRC 1459 (August 1982).

Richard V. Backley, Commissioner
/"")

~l.~~/~

tlr~k
7:J

Joyce A.' Doyle, Commissioner

~7f:i::_~
L. Clair Nelson, Commissioner

Distribution
Jerald Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
David J. Hardy, Esq.
Henry Chajet, Esq.
Jackson and Kelly
1701 Pennsylvania Ave., N.W.
Suite 650
Washington, D.C. 20006
Administrative Law Judge Gary Melick
Federal Nine Safety and Health
Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1380

ADMINISTRATIVE LAW JUDGE DECISIONS

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

~JUL 5

JOHN ETHERIDGE,

1990

Complainant

DISCRIMINATION PROCEEDING
Docket No. PENN 90-21-D
PITT-CD-89-26

v.

Valley No. 11 Mine

VALLEY COAL COMPANY,
Respondent

ORDER OF DISMISSAL
Before:

Judge Merlin

On November 13, 1989, you filed with this Commission a
complaint of discrimination under section 105(c) of the
Federal Mine Safety and Health Act 1977. On March 22, 1990,
a show cause order was issued directing you to provide information
regarding your complaint or show good reason for your failure
to do so. The show cause was mailed to you certified mail,
return receipt requested. You have however, not responded
and complied with the show cause order.

-

Accordingly, this case is DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
John Etheridge, P.O. Box 241, Twin Rocks, PA 15960 (Certified Mail)
Valley Coal Company, Valley No. 11 Mine, P.O. Box 86, Alverda, PA
15710 (Certified Mail)
/ss

1381

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 CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 90-39-M
A.C. No. 29-00775-05506

v.
HOMESTAKE MINING COMPANY,
Respondent

JUL 6 1990

..

Docket No. CENT 90-58-M
A.C. No. 29-00775-05507
Homestake Mill

DECISION
Appearances:

Janice L. Holmes, Esq., Office of the Solicitor
U.S. Department of Labor, Dallas, Texas,
for Petitioner;
Wayne E. Bingham, Esq., Crider, Calvert & Bingham,
Albuquerque, New Mexico,
for Respondent.

Before:

Judge Lasher

This proceeding was initiated by the filing of Complaints
Proposing Penalty in the captioned dockets pursuant to Section
llO(a) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et seq.
At the outset of the hearing on June 5, 1990, the parties
consummated negotiations resulting in the amicable resolution
of the issues arising out of the three Citations involved in
the above two dockets. Their settlement agreement was proposed
and considered on the record of the hearing and my bench decision
approving such is here affirmed.
ORDER
In Docket No. CENT 90-39-M, Citation No. 3277887 is
MODIFIED to delete the "Significant and Substantial" designation thereon, is otherwise affirmed, and the penalty of $20
agreed to by the parties and assessed at hearing CT. 9), shall
be paid by Respondent to the Secretary of Labor within 30 days
from the date of the issuance of this decision.
In Docket No. CENT 90-58-M, Citations numbered 3277890
and 3277990, the prosecution of which having been withdrawn
by Petitioner, are VACATED.

/'/'" . ~-k.,, "'"
C.A . P"l!Cc·;.-v..._ ·<· A ,
Michael A. Lasher, Jr.
Administrative Law Judge

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,/,, /
/2'tif_.-µ.c~·c

1382

Distribution:
Janice L. Holmes, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 S. Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Wayne E. Bingham, Esq., Crider, Calvert & Bingham, 3908 Carlisle,
N.E., Albuquerque, NM 87107 (Certified Mail)

/ek

1383

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

JUL 6 1990
JIM WALTER RESOURCES, INC.,
Contestant

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

.
.

.

.
.
.

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

CONTEST PROCEEDING
Docket No. SE 89-17-R
Citation No. 3012076; 10/25/88
No. 5 Mine
Mine I.D. # 01-01322
CIVIL PENALTY PROCEEDING

.

v.

Docket No. SE 89-47
A.C. No. 01-01322-03727
No. 5 Mine

JIM WALTER RESOURCES, INC.,
Respondent
DECISION
Appearances:

Before:

William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama
for the Secretary of Labor;
H. Thomas Wells, Jr., Esq., Maynard, Cooper,
Frierson, and Gale, P.C., Birmingham, Alabama
for Jim Walter Resources, Inc.

Judge Melick

These consolidated cases are before me under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seg., the "Act," to contest Citation No.
3012076 issued by the Secretary of Labor pursuant to Section
104(a) of the Act against Jim Walter Resources, Inc., (Jim
Walter) and for review of civil penalties proposed by the
Secretary of the violation alleged therein. More
particularly Jim Walter seeks review in this case of a
citation issued for its refusal to acquiesce in the
Secretary's demand that its Ventilation and Methane and Dust
Control Plan (Plan) contain a provision stating as follows:
When methane content in any bleeder entry or any
return except a section return exceeds 1.0 volume
percentum, mine management shall submit a plan and
obtain approval by the district manager. This plan

1384

shall detail additional procedures and safeguards
which will be utilized to insure safety.
The citation as amended alleges a violation of· the
standard at 30 C.F.R. § 75.316 and charges as follows:
A citation is hereby issued in that the mine
operator adopted proposed changes in their approved
Ventilation System and Methane and Dust Control
plan dated Sept. 27, 1988, which has not been
approved by the District Manager. Refer to cover
Letter 9-lV-52 dated September 28, 1988, and
response cover letter dated October 25, 1988.
The September 28, 1988, letter from Jim Walter Mine
Manager James Beasley and referenced in the above citation
reads as follows:
I request that the cover letter for the No. 5
Mine Ventilation System and Methane and dust
Control Plan signed by me on September 27, 1988, be
revoked and that the last paragraph of that letter
that reads as follows be deleted.

"When methane content in any bleeder entry
or any return except a section return
exceeds 1.0 volume percentum, mine
management shall submit a plan and obtain
approval by the District Manager. This
plan shall detail additional procedures and
safeguards which will be utilized to insure
safety."
We shall comply with part 75.305.
The response from Acting MSHA District Manager Boone to
Mine Manager Beasley dated October 25, 1988, referenced in
the citation, reads as follows:
The request dated September 28, 1988, which deletes
a statement on the approved Ventilation System and
Methane and dust Control Plan dated September 27,
1988, has been received, and cannot be approved.
Additional procedures and safeguards are required
to insure safety in the return areas of the above
mine because of the potential of the methane
content in the return to change very rapidly. A
daily inspection of the return entries will assure
that a continuing evaluation will be conducted and
immediate corrective measures can be undertaken.

1385

The Commission discussed the underlying legal authority
for the litigation of disputed Ventilation Plans in Secretary
v. Carbon County Coal Co., 7 FMSHRC 1367 (1985}.
It stated
in this regard as follows:
The requirement that the Secretary approve an
operator's mine ventilation plan does not mean that
an operator has no option but to acquiesce to the
Secretary's desires regarding the contents of the
plan. Legitimate disagreements as to the proper
course of action are bound to occur.
In attempting
to resolve such differences, the Secretary and an
operator must negotiate in good faith and for a
reasonable period concerning a disputed provision.
Where such good faith negotiation has ta~en place,
and the operator and the Secretary remain at odds
over a plan, review of the dispute may be obtained
by the operator's refusal to adopt the disputed
provision, thus triggering litigation before the
Commission. Penn Allegh Coal Co., 3 FMSHRC 2767,
2773 {December 1981}. Carbon County proceeded
accordingly in this case. The company negotiated
in good faith and for a reasonable period
concerning the volume of air to be supplied the
auxiliary fans.
Carbon County's refusal to
acquiesce in the Secretary's demand that the plan
contain a free discharge capacity provision led to
this civil penalty proceeding.
It is not disputed in this case that Jim Walter
negotiated in good faith and for a reasonable period
concerning the disputed provision and it was Jim Walter's
refusal to acquiesce in the Secretary's demand that the plan
contain the cited provision that led to this contest and
civil penalty proceeding. While the Commission did not
designate in the Carbon County decision the party having the
burden of proof nor did it set forth the standard of proof to
be applied, the parties hereto have agreed that the
Secretary, as the moving party attempting to include the
disputed provision in the Ventilation Plan has the burden of
proof.
See 5 u.s.c. § 556 Cd}. I have determined that the
Secretary must prove by a preponderance of the evidence that,
without the Secretary's proposed change, the mine operator's
Ventilation Plan does not provide an adequate measure of
protection to the miners in the subject mine.~/
I; The Secretary argues that whatever decision is made
by the MSHA District .Manager, whether to impose a new plan
provision over the operator's objection or whether to refuse
to include a provision the operator desires, is to be
reviewed under an "arbitrary and capricious" standard. The
"arbitrary and capricious" standard is however only
applicable under the Administrative Procedure Act to judicial
review of final administrative action following the
administrative hearing. See 5 u.s.c.
§ 706{2}(A}.

1386

On the merits, Wi lli:...ms Meadows, a supervisory mining
engineer for·MSHA and a graduate mining engineer with
extensive engineering and supervisory experience in the
mining industry, testified that all mine ventilation plans in
his sub-district i.e. the Birmingham Sub-District of MSHA
District 7, are examined by him for approval or disapproval.
It was Meadows' recommendation that Jim Walter's proposed
Ventilation Plan not be approved without the disputed
provisions and, in addition, that the following provisions be
included:

A plan shall be submitted by the operator, in
detail, showing the proposed procedures and
safeguards which will be utilized to insure the
safety of all persons underground. This plan shall
include, but is not necessarily limited to, the
following information:
1.
The entire area shall be examined by
a certified person, at intervals not to
exceed 24 hours. During this examination
this main return and bleeder splits shall
be examined, including the area
immediately before the air enters the
return shaft. Just prior to entering a
return shaft, the methane content of this
air shall be less than 1.0 volume per
centum. Records must be made of all
these examinations.
Electrical equipment shall not be
operated in an area where the methane
content in the air is 1.0 volume per
centum or more.
It was Meadow's expert opinion that since the Mary Lee
Coal Bed in which the subject mine was operating is the
highest methane liberating coal bed in the United States and
because of the fluctuation of methane levels in this mine,
additional precautions were necessary for safe mining
operations.
According to Meadows, fluctuations in methane
levels are caused by, among other things, the rate of mining
advancement, the mine design and differences in
degassification efforts.

1387

Robert Keykendall, an experienced MSHA Coal Mine
inspector, testified· that he issued a section 107(a) imminent
danger withdrawal Order on March 8, 1990, for methane in the
return air. course in excess of 2 percent.
Bottles samples
taken at that time showed methane levels of 2.64 and 2.26
percent.
It is not disputed that the cited area was subject
to "fire boss" examinations and that according to the
examination books the area had been "fire bossed" and no
methane found only three days before the withdrawal order was
issued.
It may reasonably be inferred from this evidence
that indeed in this coal seam of high methane, examinations
more frequently than once weekly, are warranted.
In support of its position Jim Walter called as its
witness Charles Stewart, General Manager for safety and
training.
According to Jim Walter records, during calendar
years 1987, 1988, and 1989, there were only two citations
issued for violations of the standards at 30 C.F.R. § 75.308,
309, 310, 316 and 329. While this evidence of course tends
to rebut the testimony of Meadows that MSHA had relied upon
the issuance of prior citations in determining that the
levels of methane fluctuated within the subject mine, it
nevertheless does not negate the Secretary's case.
The credible expert evidence in this case clearly
supports the position of the Secretary that in this
admittedly highly gassy mine more specific precautions are
warranted in the Ventilation Plan than are required by the
general provisions of law. The Secretary has met her burden
of proving that operation of the subject mine without. the
disputed provisions would indeed be unsafe.
Accordingly I find that Jim Walter violated 30 C.F'.R. §
75.316 in at least technically operating its No. 5 Mine
without the disputed provisions in its Ventilation Plan.
Inasmuch as the citation was issued pursuant to a Secretarial
policy providing for the challenge for disputed ventilation
plan provisions and the violation was of limited duration and
not hazardous I find the proposed civil penalty of $20 to be
appropriate.
ORDER
Jim Walter Resources, Inc., is directed o pay a civil
penalty of $20 within 30 days of t~ date of t\\is decision.
7

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I

Gary Me~ k
\
Administrative L w Judge

~

1388

\I

.

~istribution:

William Lawson, Esq., Office of the Solicitor, U.S.
Department of Labor, 2015 Second Avenue, North, Birmingham,
AL 35203 (Certified Mail)
H. Thomas Wells, Esq., Maynard, Cooper, Frierson, & Gale,
P.C., 12th Floor, Watts Building, Birmingham, AL 35203
(Certified Mail)
nt

1389

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

JUL 6 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. SE 89-113
A.C. No. 01-00851-03718

v.
Oak Grove Mine
U.S. STEEL MINING COMPANY,
INC.,
Respondent
DECISION
Appearances:

William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor,
Birmingham, Alabama,
for the Petitioner;
Billy M. Tennant, Esq., U.S. Steel Mining Company,
Inc., Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a).
Petitioner seeks a civil penalty assessment in the amount of
$1,000 for an alleged violation of mandatory safety standard
30 C.F.R. § 75.316. The respondent filed a timely answer contesting the alleged violation, and a hearing was held in
Birmingham, Alabama. The parties filed posthearing arguments,
and I have considered them in my adjudication of this matter.
Issues
The issues presented in this proceeding include the
following:
(1)
Whether the respondent violated the cited
mandatory safety standard; (2) whether the alleged violation was
significant and substantial (S&S); and (3) whether the alleged

1390

violation cited in the contested section 104(d) (2) order resulted
from an unwarrantable failure by the respondent to comply with
the cited standard.
Assuming the violation is established, the question next
presented is the appropriate civil penalty to be assessed pursuant to the civil penalty assessment criteria found in section
llO(i) of the Act. Additional issues raised by the parties are
identified and disposed of in the course of this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301, et seq.
2.

Sections llO(a), llO(i), 104(d), and 105(d) of the Act.

3.

Mandatory safety standard 30 C.F.R.

4.

Commission Rules, 29 C.F.R.

§

§

75.316.

2700.1, et seq.

Stipulations
The parties stipulated to the following (Tr. 8-9):
1. The respondent is a large mine operator subject to the jurisdiction of the Act.
2. Payment of the civil penalty assessed for the
alleged violation in question will not adversely affect
the respondent's ability to continue in business.
3. The respondent timely abated the alleged
violative condition in good faith.
Discussion
The contested section 104(d) (2) S&S Order No. 3188462,
issued by MSHA Inspector Judy A. McCormick on February 1, 1989,
cites an alleged violation of mandatory safety standard 30 C.F.R.
§ 75.316, and the condition or practice cited is described as
follows:
The current approved ventilation Methane and Dust
Control Plan was not being complied with in the face of
the No. 2 entry. The roof bolting machine was in the
face and the blowing curtain was not being used.
It
was laying on the machine. The extendable line curtain
(Bo Strip) had been taken down back to the permanent
curtain which was 24 feet from the deepest point of

1391

penetration of the face. This is the third such violation in·3 inspection shifts. The crosscut to the right
was being turned in on the third cut.
Petitioner's Testimony and Evidence
MSHA Inspector Judy A. McCormick confirmed that she
inspected the number two entry of the number 10 section on
February 1, 1989. She stated that she found two roof bolters
standing by an energized roof-bolting machine, and the ventilation extending exhausting line curtain was 24 feet from the face
of the number two crosscut. This condition was a violation of
the respondent's ventilation plan because the plan required the
curtain to be maintained to within 10 feet of the deepest point
of penetration of all working places except during the extraction
of pillars (Tr. 13-15).
Ms. McCormick identified exhibit P-3 as the respondent's
approved ventilation plan, and she stated that the provision
which was violated appears at page 10, item H-1. She stated that
this provision has been in effect for several years. She confirmed that the number two entry was a working face, and that
pillars were not being mined because it was an advancing section
(Tr. 16).
Ms. McCormick stated that the curtain must be maintained to
within 10 feet of the face in order to provide ventilation to the
face and to control methane and carry away dust, and if this is
not done, there is a potential for methane build-up. The mine is
a gassy mine and it is subject to weekly spot inspections. The
average annual methane liberation through the five mine fans was
in excess of 11 million cubic feet every 24 hours, and in the
event the curtain is not maintained to within 10 feet of the face
it is very likely that methane will accumulate at the face (Tr.
17-18).
Ms. McCormick believed that methane accumulations presented
an ignition, fire, and explosion hazard, and that "bad burn"
injuries would be highly likely in the event of a fire, explosion, or ignition. She confirmed that prior to her inspection
MSHA conducted an investigation of a methane face ignition which
occurred when a line curtain was not maintained within 10 feet of
the face, and this resulted in burns to two people (Tr. 19-21,
exhibit P-4) .
Ms. McCormick identified exhibit P-5, as copies of two prior
citations which she issued on the number 10 section during the
day shift for failure to maintain the line curtain to within
10 feet of the face (Tr. 23-24). She also confirmed the issuance
of a prior section 104(d) (2) order on the number 9 section where
another order was still outstanding, and another occasion on that
section when 1.4 percent methane accumulated at the face when a

1392

curtain was taken down and the respondent was not aware of it
because there was no methane detector available and the foreman
had not tested for methane. She confirmed that she issued an
imminent danger order in that instance (Tr. 26, Exhibits P-6
through P-8).
Ms. McCormick explained that she issued the unwarrantable
failure order in this case for the following reasons (Tr. 27):
A.
I felt that it could have been a particularly
hazardous situation and since this was true, the operator had a heightened duty to be aware of what electrical equipment was doing in the face.
Also it was
repetitious of previous violations on this section as
well as in the mine.
Ms. McCormick further explained that the roof-bolting
machine was an ignition source because it generates heat capable
of igniting methane. Machine permissibility violations and
friction from the drill bits would also be sources of ignition,
and she considered these factors in the context of continued roof
bolting work. She also considered -the prior unwarrantable failure and imminent danger orders (Tr. 28-29).
Ms. McCormick confirmed that she determined the distance the
extendable curtain was back from the face by measuring it with a
tape, and she confirmed that she took a methane reading of
0.2 percent approximately 20 to 22 ,feet from the face.
She would
expect the methane reading to be higher at the face because of
poor ventilation due to the distance of the curtain from the face
(Tr. 30-33).
On cross-examination, Ms. McCormick confirmed that when she
arrived at the area in question the roof bolters were not bolting
and were performing no work. She stated that they told her that
they had pulled the extendable curtain back and were preparing to
start roof bolting after installing the blowing curtain.
Ms. McCormick confirmed that the installation of the blowing
curtain is a normal practice during roof bolting (Tr. 37).
However, she stated that the extendable curtain should not have
been pulled back prior to the installation of the blowing curtain, and that the roof bolters admitted that they were aware of
this, but offered no explanation as to why they had done it out
of sequence (Tr. 38). She stated that the roof-bolting machine
was positioned to begin roof bolting (Tr. 42).
Ms. McCormick stated that the area in question was a working
place, that coal had previously been extracted, and the place was
being prepared to be roof bolted (Tr. 45-46). She reiterated
that she· based her unwarrantable failure finding on the fact that

1393

the respondent had a heightened duty to insure that the cited
practice was not occurring in the face area, particularly in
light of the hazardous situation caused by the failure to maintain the curtain to within 10 feet of the face (Tr. 48).
Ms. McCormick stated that the section foreman-was not with
the roof bolters when she arrived on the section and she met him
while leaving the section, but could not recall speaking with him
(Tr. 50). She agreed that the owl shift and day shift were
changing places, _that a miner had just finished cutting coal and
was going to another entry, and that the two roof bolters had
just entered the area to begin bolting, but had not actually
commenced bolting (Tr. 52-53).
Ms. McCormick agreed that the two roof bolters had been
present in the area for a very short time, and that they would
normally install the blowing curtain, withdraw the extendable
curtain, and begin bolting. She confirmed that when she arrived
in the area, the roof bolters had moved the extendable curtain
back and had not put up the blowing curtain (Tr. 54). All that
was required to abate and terminate the order was the installation of the blowing curtain. She confirmed that the blowing
curtain was laying on the roof-bolting machine (Tr. 56).
Ms. McCormick stated that a ventilation curtain was up at
the last row of permanent roof supports where she took the
methane reading, and that the roof-bolting machine was being
ventilated. She confirmed that she did not check the machine for
any permissibility violations, assumed that it was permissible,
and that no machine tramming or roof bolting was taking place
(Tr. 59). She stated that any "S&S" finding would be based on
continuing normal mining operations, and that she would have
expected the roof bolters to start bolting (Tr. 59). She
believed they would have installed the blowing curtain if they
had intended to do so before commencing bolting, but conceded
that she did not ask the bolters what they intended to do next or
whether they intended to install the blowing curtain before they
began bolting (Tr. 60).
Ms. McCormick did not know if the two roof bolters were
involved in any of the previous citations, but she confirmed that
Foreman Rollins was involved in the two prior citations on the
number 10 section. There was no equipment in place in those
instances, and the curtain had simply not been kept up after the
bolting and servicing of the equipment had been completed, and no
mining activity was taking place (Tr. 61-62).
Ms. McCormick agreed that the narrative statements supporting the "special" civil penalty assessment for the contested

1394

order which .indicate that roof bolting was taking place without
the blowing curtain up, and that the blowing system of ventilation was not being used during roof bolting are incorrect (Tr.
67-69) .
Ms. McCormick agreed that the roof bolters were present for
5 to 10 minutes at most ·before she arrived at the place in question, and she would not have expected the fire boss to see the
condition and take corrective action. With regard to the section
foreman, she believed that in light of the prior history of
citations, the foreman "should check when equipment operators go
into a place to make sure that they are legal before they start"
(Tr. 73) .
Ms. McCormick stated that even if the roof bolters had
pulled back the extended curtain with the intention of putting up
the blowing curtain they would still be in violation because one
type of ventilation may not be removed in preparation of installing another type and the face ventilation must be maintained
10 feet from the face at all times (Tr. 77-78). In view of the
fact that the blowing curtain was on the machine, Ms. McCormick
concluded that no attempt was made to install the blowing ventilation system prior to moving back the exhaust system. The
proper sequence would have been to put up the blowing curtain
first before pulling the extendable curtain back. It may not be
done in reverse order because the face would be left unventilated.
In this case, the blowing curtain was simply laying on
the machine. She explained that the curtain normally is stored
on the machine, but that in this case it was there because it had
not been installed to within 10 feet of the face (Tr. 79-81).
Ms. McCormick confirmed that the roof bolters told her that
they had pulled back the blowing curtain, and even if they had
told her they were going to install it, it would not have made
any difference because there was no ventilation at the face (Tr.
85). She confirmed that the two roof bolters were from the "owl
shift" and had not been replaced by the day shift, and that the
shifts were just changing. She confirmed that the machines are
not usually shutdown between shifts and they are usually in use
between shifts. The midnight shift foreman, Mr. Rollins, was
still in charge of the bolters (Tr. 87).
Ms. McCormick confirmed that the blowing curtain should have
been installed on the last row of permanent roof supports and
that this would have placed the curtain 22 to 24 feet from the
face until the last two rows of bolts are installed and miners
are pulling out (Tr. 88). She confirmed that the face area was
not being ventilated by either the blowing ventilation system or
the exhaust system. However, there would still be some air at
part of the face, but not the amount which would normally be
distributed if the line curtain were closer to the face.
She

1395

agreed that there was no activity within 24 feet of the face at
the time the order w~s issued (Tr. 92).
Ms. McCormick confirmed that ventilation plan item 2 on
page 10 was partially complied with in that the regular line
brattice was installed to within 30 feet of the face, but the
extended line curtain was not within 10 feet of the face as
required by the plan provision at the top of page 11 which states
"an extended line curtain to within 10 feet of the face as left
by the continuous mining crew" (Tr. 93).
Respondent's Testimony and Evidence
Joseph Nogosky, Safety Manager, U.S. Steel, Southern
Division, testified that he was aware of the circumstances
surrounding the issuance of the contested order because he conducted an investigation immediately after the midnight shift came
out of the mine. He spoke with the shift foreman Glen Rollins,
and Mr. Rollins informed him that the inspector issued the order
for not having the blowing curtain up while the roof bolter was
operating. Mr. Rollins told him that he did not know what
occurred because he spent most of the shift 500 feet from the
face working on a problem at the feeder and was not aware that
the inspector was on the section until she told him that she had
issued the order (Tr. 107).
Mr. Nogosky stated that the two roof bolters in question
were experienced, and he confirmed that during the course of his
investigation regarding the contested order, the roof bolters
informed him that while the roof-bolting machine was being
trammed into the face area, it was turned toward the right corner
of the entry at an angle and the ATRS at the front of the machine
became entangled in the extendable line curtain. The machine was
stopped, and the extendable curtain was retracted so that it
could be disentangled from the machine. The roof bolter operator
got out of the machine and was preparing to hang up the blowing
curtain when Ms. McCormick appeared on the scene. The bolters
tried to explain that the machine had hooked up on the curtain,
but the inspector said it did not matter, left to make a methane
check, and told the bolters to put the curtain up (Tr. 108-111).
Mr. Nogosky stated that the use of the blowing curtain is a
ventilation plan provision imposed by MSHA as part of the
approved mine ventilation plan, and he explained that the roof
bolters would first position the roof-bolting machine where they
were going to put up their first row of bolts. They would then
extend the extendable curtain to within 10 feet of the face and
then put up the blowing curtain and slide the extendable curtain
back.
In this case, in view of the fact that the extendable
curtain got caught in the machine, they retracted it before
putting up the blowing curtain. He stated that he would probably
have done the same thing under the circumstances (Tr. 116). He

1396

also stated that the roof bolters told him that they had just
pulled the machine in "no more than a couple of minutes" before
Ms. McCormick arrived, and that they intended to put up the
blowing curtain and start bolting (Tr. 117-118).
In response to bench questions as to why the roof bolters in
question were not called to testify in this case, Mr. Nogosky
explained that they expressed a willingness to testify at the
time the order was issued because they were upset that it was
issued and they were afraid that they would be disciplined by the
company.
In view of their work records, and his belief that they
were telling the truth about the curtain being entangled in the
machine, Mr. Nogosky decided not to discipline the roof bolters.
However, when he contacted them to testify in this case, they
stated that they had changed their minds and did not wish to
testify. Respondent's counsel indicated that it was then too
late to subpoena the bolters for testimony (Tr. 120-123).
Mr. Nogosky did not believe that the violation was an unwarrantable failure because the foreman was not present, and the two
roof bolters were trying to do the right thing when the curtain
became entangled in the machine when it was operating in a narrow
space. He stated that it is not unusual for ventilation to be
interrupted by a rock fall, or a piece of equipment running into
a curtain, and as long as such a situation is recognized and
steps are taken to correct it, he did not believe that such an
occurrence would constitute a violation of the ventilation
standard (Tr. 126).
On cross-examination, Mr. Nogosky confirmed that he did not
accompany Ms. McCormick during the inspection, and that section
foreman Rollins was not aware that she was on the section. He
confirmed that he conducted his investigation of the order the
same day it was issued, and he confirmed that the chairman of the
safety committee, the general mine foreman, and the acting mine
superintendent were present during his inquiry. He confirmed
that Ms. McCormick did not participate in his inquiry, and that
he made no effort to contact her because on prior occasions when
he has asked her to participate in such investigations she has
declined (Tr. 129-133). Mr. Nogosky confirmed that he simply
made notes of the investigation, which lasted "maybe a couple of
hours," but that he prepared no formal report, and had nothing in
writing to support his testimony concerning what the roof bolters
told him (Tr. 134).
Mr. Nogosky conceded that the approved ventilation plan
required the blowing curtain to be put up first before the
extendable curtain was put up, and that in this case the blowing
curtain was not up when the inspector was there. He disagreed

1397

that this situation warranted an order, but that "if you go
strictly by ·the letter of the plan without taking in any mitigating circumstances," he agreed that a section 104(a) citation
would have been in order (Tr. 141).
Mr. Nogosky stated that one of the roof bolters told him
that he had a hook which is used for hanging the blowing curtain
in his hand when Ms. McCormick appeared, and Mr. Nogosky believed
that one could assume that the roof bolter was going to put up
the curtain (Tr. 143). Mr. Nogosky stated if the blowing curtain
was not long enough to reach, it was possible that this prevented
the roof bolters from putting it up. However, he conceded that
this would depend on the prevailing situation, and that he was
not present when the conditions were observed and cited by the
inspector (Tr. 144-145).
Mr. Nogosky stated that he was not aware whether the two
roof bolters in question were ever disciplined in the past by the
respondent, and according to his review of their records, they
were not. He conceded that they may have received verbal warnings which may not appear in their records. He confirmed that
Milton Presley was the day shift foreman on the day the order was
issued, but that he was not responsible for the two roof bolters.
Since the violation did not occur on his shift, he did not interview him during his investigation. He stated that Mr. Presley
normally would not have been at the location of the violation
because his shift starts at 7:00 a.m., and it takes 35 to
45 minutes to get to the number 10 section (Tr. 145-148).
Mr. Nogosky confirmed that U.S. Steel has disciplined foreman Paul Boyd within the past 6 months for failing to have the
line curtains within 10 feet of the face, and that this was in
connection with the violation issued in October, 1988 (Tr. 149).
Mr. Nogosky explained that a "hot seat change out" is when
the owl shift and day shift are exchanging places, and the owl
shift does not leave until the day shift arrives and immediately
takes over the work. He explained that the two roof bolters in
question had not as yet ended their work, and at the time the
order was issued, they would have been in the process of bolting
since the day crew had not as yet arrived to change out with them
(Tr. 151).
Mr. Nogosky stated that he prepared no formal written report
of his investigation because everyone who would receive a copy
was in the room during his inquiry, and no disciplinary action
was ever taken against the roof bolters. He also confirmed that
he did not participate in any MSHA civil penalty conference in
this case because he has never prevailed and believes that it is
a waste of time (Tr. 154). Mr. Nogosky conceded that even though
the extendable curtain may have been torn down by the machine,
the blowing curtain was not installed, and the roof bolters moved

1398

the extendable curtain back just before the inspector arrived.
He conceded that if they had installed the blowing curtain before
withdrawing the damaged extendable curtain, there would have been
no problem. He explained that the bolters did not put up the
blowing curtain because they were concerned about positioning the
machine so that they could put up the blowing curtain first and
getting it untangled from the other curtain (Tr. 157).
Inspector McCormick was called in rebuttal by the petitioner, and she confirmed that she arrived on the section before
day shift foreman Milton Presley, but that she met him when she
was leaving the section after she issued the order. She could
not recall seeing any other management personnel at that time,
and did not recall speaking with Mr. Rollins. She confirmed that
the two roof bolters in question gave her n~ explanation as to
why the curtain was not up, and she saw no visible evidence that
the curtain had been caught or ripped up in the machine. She
further confirmed that after observing the violative condition,
she did not leave the area immediately, and stayed for some
minutes to allow the bolters sufficient time to install the
blowing curtain. She stated that she observed them install the
curtain and that it took approximately 5 minutes (Tr. 161).
Ms. McCormick stated that if the roof bolters had mentioned
tearing down the curtain she would have taken this into consideration, but she did not know that it would have made any difference because any entangled curtain would not prevent them from
installing the blowing curtain prior to pulling back any entangled extendable curtain (Tr. 166).
On cross-examination, Ms. McCormick stated that union safety
committeeman Jerry Jones was with her during her inspection. She
stated that on the morning of the hearing in this case, Mr. Jones
told her that one of the roof bolters had "recently changed his
story" and agreed with Mr. Nogosky's testimony regarding the torn
curtain, but that the other roof bolter disagreed with this
contention. She also stated that "originally they both disagreed
with Mr. Nogosky" (Tr. 173). In response to further questions,
Ms. McCormick stated that she personally observed the two roof
bolters putting up the blowing curtain, but she could not recall
seeing any hooks in their hands (Tr. 174).
Jerry Jones, electrician, and chairman of the UMWA mine
safety committee, testified that he participated on "the tail
end" of the investigation conducted by Mr. Nogosky. He stated
that he met roof bolter Harvell after he had been interviewed,
and that when he arrived at the meeting roof bolter Smith was at
the end of his interview, and he could not recall what he said.
Mr. Jones stated that he did not speak with the roof bolters
until after the investigation was over. He stated that
Mr. Harvell told him that they had not knocked the curtain down
and "just actually got caught with the curtain down" (Tr. 177).

1399

Mr. Jones did not speak with Mr. Smith at that time, but did
speak with both roof bolters recently, and he talked to them
separately. Mr. Harvell again told him that "they just got
caught. They didn't knock the curtain down," and Mr. Smith told
him that he knocked the curtain down and "was in the curtain"
(Tr. 178).
Mr. Jones stated that he attempted to speak with Mr. Harvell
and Mr. Smith together in order to reconcile their stories, but
could not do so. He confirmed that he did not conduct his own
investigation because he found out about the matter late, and
that he did not tell Mr. Nogosky or management about the conflicting stories of Mr. Harvell and Mr. Smith because he was
unaware of any investigation until it was nearly completed.
Since the two men were not disciplined, he believed the matter
was over (Tr. 181).
Mr. Jones stated that Mr. Harvell and Mr. Smith told him
that they would appear at the hearing in this matter, and that he
told them "if you get subpoenaed come and tell it like it
happened" (Tr. 183). He confirmed that he suggested to them that
if they were not subpoenaed they did not have to appear at the
hearing (Tr. 183).
Findings and Conclusions
The Section 104(d) "Chain" Issue
The respondent would not stipulate that the contested order
issued in this case was procedurally correct and met all of the
statutory requirements for the section 104(d) sequence or
"chain." The respondent takes the position that the petitioner
made no showing that there was no intervening clean inspection of
the entire mine since the issuance of the most recent order under
section 104(d). In support of its argument, the respondent
asserts that the contested order was based on an order issued on
April 4, 1983, but that the most recent order of record was
issued on October 11, 1988, and the inspector did not know of an
unwarrantable failure order being issued between October 11,
1988, and February 1, 1989, and did not know whether the entire
mine had been inspected during that same period.
Inspector McCormick explained the procedure that she follows
in determining whether there has been any intervening clean
inspection for purposes of the section 104(d) (1) and (d) (2) order
"chain." She confirmed that each mine has a uniform file which
contains information concerning the "d tracking system," includ~
ing information as to when the initial citations and orders are
issued. She stated that she reviewed the file for the mine in
question, and found no intervening clean inspections prior to the
issuance of the contested order in this case. Since her supervisors maintain the current inspection status of the mine, the

1400

tracking system would not have been in the file if there were a
clean mine inspection during the intervening period of time. She
could not specifically recall whether she had issued any section
104(d) (2) orders between October 11, 1988, and February 1, 1989,
but stated that "there were lost of D-2s issued during that
quarter" (Tr. 98-100).
Respondent's counsel agreed that the mine would have been
completely inspector from April 4, 1983, until the date of the
issuance of the order by Ms. McCormick. Ms. McCormick confirmed
that according to the mine file there were no intervening "clean"
mine inspections during this time frame, and that to her knowledge the mine has been "on a d sequence" since April, 1983 (Tr.
101-102).
In view of the unrebutted testimony by the inspector, which
I find probative and credible, and absent any credible evidence
to the contrary, I conclude and find that the contested order
issued by Inspector McCormick was procedurally correct and met
all of the prerequisite statutory requirements for the existence
of the "section 104(d) chain" of citations and orders.
Fact of Violation
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 75.316, because of its failure to
follow its MSHA approved ventilation and methane and dust-control
plan, in the number 2 entry of the number 10 section. The
inspector found that an extendable ventilation line curtain was
not being maintained to within 10 feet of the face as required by
the plan, and that an available blowing ventilation curtain was
not being used. Section 75.316, requires a mine operator to
follow its approved plan, and it is well settled that the failure
to do so constitutes a violation of this section. See:
Co-op
Mining Co., 3 MSHC 1206 (1984); Zeigler Coal Company, 3 MSHC 1661
(1984); Jim Walter Resources, Inc., 3 MSHC 1983 (1985); Monterey
Coal Co., 3 MSHC 1315 (1984).
The inspector confirmed that the applicable face ventilation
plan provision which was violated appears at page 10, paragraph
H.1, and it states as follows:
"The extendable line curtain or
sliding tube will be maintained to within 10 feet of the face in
all working places except when pillars are being mined" (exhibit
P-3).
Paragraph H.2 of the plan, pgs. 10-11, explains the plan
provisions for the required installation and use of the extendable line curtain and blowing curtain during normal roof bolting
operations.
The credible and unrebutted testimony of the inspector
establishes that the cited location at the number 2 entry was a
working face, and that pillars were not being mined because the
section was an advancing section. The inspector's testimony also

1401

establishes that the extendable ventilation line curtain was
24 feet from the face of the number 2 entry and that the blowing
curtain was not installed and was laying on the roof-bolting
machine. The respondent does not dispute the fact that the
bolters took down the extendable line curtain before installing
the blowing curtain, and that the plan required that the blowing
curtain be installed before the extendable line curtain is
retracted during normal roof bolting operations (page 4, posthearing brief). Respondent's safety manager Nogosky conceded
that the ventilation plan required the blowing curtain to be put
up first before the extendable curtain was put up, and that in
this case the blowing curtain was not up when the inspector
observed the cited conditions. Mr. Nogosky's testimony does not
rebut the inspector's credible testimony that she determined the
distance of the extendable line curtain from the face by means of
a tape measure.
The respondent takes the position that the facts presented
in this case do not establish that it has violated its ventilation plan or section 75.316. In support of this conclusion, the
respondent argues that its approved ventilation plan contains a
provision that allows it to handle "abnormal conditions or situations" on a case-by-case basis, and that in the instant case the
situation found by the inspector was abnormal, and that in the
circumstances, it was handled properly by the bolters without
violating the purpose or intent of the plan.
The respondent points out that the plan requirement for
maintaining the extendable line curtain to within 10 feet of the
face during roof bolting operations is for the purpose of providing adequate ventilation in the face area. The respondent maintains that the plan provision which requires the blowing curtain
to be installed before the extendable curtain is retracted could
not be followed in this case because the bolting machine became
entangled in the extendable line curtain. The respondent concludes that the roof bolters acted wisely by electing to disentangle the extendable curtain and retract it rather than tearing
it down while positioning the machine to begin bolting, and that
the extendable curtain no longer served any ventilation purpose
in its tangled state. Under these circumstances, the respondent
further concludes and argues that the bolters logically were
proceeding to install the blowing curtain when they were interrupted by the inspector. The respondent further points out that
the roof bolting operation had not commenced when the inspector
arrived at the scene, and that but for the inspector's interference, the blowing curtain would have been installed in a
minimum amount of time, and there is no evidence that the bolters
would not have installed the blowing curtain before commencing
bolting.
The respondent asserts that the Commission has recognized
that temporary interruptions in ventilation can occur without a

1402

violation resulting. Citing Freeman United Coal Mining Co.,
11 FMSHRC 161 (February 1989), the respondent argues that in that
case the Commission considered a similar situation where an
inspector directed a miner not to rehang a curtain which had been
torn down by a shuttle car until the inspector could take an air
reading, and found no violation. In Freeman, the Commission
stated in relevant part as follows at 11 FMSHRC 165:
[I]t is clear that in certain circumstances, including
the unique factual circumstances presented here, a
temporary interruption in the minimum air velocity
delivered can occur without a violation of the Act
resulting.
While minimum air quantity or velocity requirements of ventilation plans and mandatory safety standards provide an objective test by which the adequacy
of a mine ventilation system can be evaluated, other
mandatory ventilation standards recognize that the
dynamics of the underground mining environment occasionally interfere with attainment of constant minimum
quantity or velocity levels. The other standards
recognize that disruptions in mine ventilation inevitably occur and that the key to effective compliance lies
in expeditiously taking those steps necessary to
restore air quantity or velocity to the required level.
For example, it is obvious that an unplanned power
outage and the temporary shutdown of the main fan will
reduce the quantity and velocity of air delivered to
the face areas. Such a contingency is anticipated in
the mandatory standards, however, and procedures for
the restoration of air and the steps to be taken if
ventilation cannot be restored within a reasonable time
are outlined accordingly. See 30 C.F.R.
§§ 75.300-3(a) (2), 75.321, and 75.321-1.
Similarly, and directly on point with the situation presented in this case, there are mandatory safety
standards that anticipate the possible diminution in
ventilation caused by damaged or downed line brattice.
30 C.F.R. § 75.302, a standard drawn verbatim from the
statute, 30 u.s.c. § 863(c), requires that "[p]roperly
installed and adequately maintained line brattice . . .
shall be continuously used from the last open crosscut
of an entry or room of each working section to provide
adequate ventilation . . . . When damaged by falls or
otherwise, such brattice . . . shall be repaired immediately."
(Emphasis added.)
Furthermore, 30 C.F.R.
§ 75.302-2 provides that, "[w]hen the line brattice
. . . is damaged to an extent that ventilation of the
working face is inadequate, production activities in

1403

the working place shall cease until necessary repairs
are made and adequate ventilation restored." These
standards recognize that line curtains may be damaged
or torn down and that ventilation at the working face
may, as a result, be diminished. They also make clear,
however, that absent any unusual circumstances, it is
the operator's failure to take immediate steps to
repair or replace the downed line brattice that constitutes a violation.
And, at 11 FMSHRC 166:
(C]ompliance with section 75.302-2 would have been
achieved but for the inspector's order, mistaken as it
may have been, to cease rehanging the line brattice.
Had not the inspector intervened, the minimum air
velocity would have been restored almost immediately.
At the very least, the inspector's unwitting interference with Freeman's abatement skewed the results of
the air measurement so as to render it invalid for
purposes of establishing a violation insofar as the
three-foot gap initially observed by the inspector is
concerned. Under these circumstances we conclude that
Freeman did not violate its ventilation plan.
Relying on the Freeman case decision, the respondent concludes that if the inspector had not interrupted the roof
bolters, there is no reason to believe that they would not have
installed the blowing curtains before they began to install the
bolts, and that under these circumstances, there was no violation
and the contested·order should be vacated.
The petitioner takes the position that the evidence clearly
establishes that the respondent violated the clear and explicit
ventilation plan provision which required that the extendable
line curtain be within 10 feet of the face, and that the plan, in
clear and unambiguous terms, sets forth the sequence of
installing/retracting line curtains during bolting operations.
The petitioner argues that it is undisputed that the extendable
line curtain was 24 feet from the face and not in compliance with
the applicable plan provision, and that the No. 2 entry was a
working place and pillars were not being mined. Under the circumstances, the petitioner concludes that the conditions
described and cited by the inspector on the face of the order
constitutes a violation of the respondent's ventilation plan.
With regard to the respondent's reliance on the Freeman
decision as a defense to the violation, the petitioner concludes
that it is misplaced, and points out that in the instant case
there is no direct evidence of a curtain being torn or any
"unwitting interference" by the inspector. On the contrary, the
petitioner points out that the inspector asked the bolters if

1404

they knew the. proper curtain sequence and "why they didn't do it
that way," and that the bolters offered no defense. The petitioner concludes that the respondent simply "got caught" with the
curtain behind just as it had on six previous occasions.
In Consolidation Coal Company, 3 FMSHRC 2207 (September
1981), Judge Melick affirmed a violation of section 75.316, for
the failure by the operator to ventilate an entry with a line
curtain. Although the evidence established that the curtain had
been in place 2-1/2-hours prior to the issuance of the citation,
but had been taken down for some unexplained reason, the judge
found that the absence of the curtain at the time the citation
was issued was still a violation.
In Windsor Power House Coal Company, 2 FMSHRC 671 (March
1980), Commission review denied April 21, 1980, Judge Melick
affirmed a violation of section 75.316 because of the operator's
failure to maintain adequate ventilation at a working face as
required by its ventilation plan. Even though the evidence
showed that mining was temporarily halted in the cited area
because of a mechanical breakdown, the judge found that the
absence of the required ventilation constituted a violation.
In Co-Op Mining Company, 5 FMSHRC 2004 (November 1983),
former Commission Judge Virgil Vail affirmed a violation of
section 75.316, because of an operator's failure to install a
line curtain as required by its ventilation plan. Although the
judge considered the fact that the curtain may have been down for
only a short time due to possible rib sloughage, he found that
such an unusual occurrence was no defense.
Citing Zeigler Coal
Co., 4 IBMA 30 (1975), aff'd 536 F.2d 398 (D.C. Cir. 1976), and
Consolidation Coal Co., supra, the judge found that when an
operator departs from his ventilation plan, a violation of section 75.316, is established.
In Consolidation Coal Co., 8 FMSHRC 612 (April 1986), Judge
Morris affirmed a violation of section 75.316, because of the
operator's failure to maintain the proper air velocity at a face
as required by its ventilation plan, even though the air reaching
the face may have been interrupted for no more than 30 seconds
because of a ventilation curtain being pushed against a rib by a
shuttle car trailing cable.
In the Freeman case, the mine operator was cited for a
violation of section 75.316, for failing to maintain the proper
air velocity at the end of a the line curtain as required by its
approved ventilation plan. The facts show that the inspector
observed that the curtain which was installed across the intake
entry directing intake air to the face was down in the corner of
the room, causing a gap of approximately 3 feet in the curtain.
When the inspector proceeded to the face to take an air reading,
a trailing cable of a shuttle car became entangled in the line

1405

curtain, te_aring an 18 to 20 foot gap in it. A shuttle car
operator heard the curtain tear, and after seeing the large gap,
immediately prepared to rehang the curtain as he had been
trained. At the same time, while the inspector was preparing to
take his air reading at the end of the curtain at the face, he
was informed that he would not get an accurate reading because
outby in the entry, the line curtain was being rehung. The
inspector then walked back from the face, into the room, and
directed the shuttle car operator not to hang the curtain because
he had to take an air reading at the face before the curtain
could be rehung. The shuttle car operator testified that had he
not been interrupted by the inspector, it would have taken him
about 3 to 4 minutes to rehang the curtain. The inspector proceeded to take an air reading, found an insufficient velocity of
air at the face, and issued the violation.
I find that the facts presented in the Freeman case are
distinguishable from those presented in the instant proceeding.
In Freeman, the evidence established as a fact that the ventilation had been temporarily interrupted by a torn curtain which
occurred while the inspector was on the scene, and the operator
was in the process of restoring the ventilation and abating the
violation shortly before the citation was issued. Since the
inspector had knowledge of these facts, but nonetheless intervened and ordered the operator not to rehang the curtain, which
would have restored the ventilation and cured the problem, the
Commission concluded that the inspector's interference with the
operator's efforts to immediately abate the condition by rehanging the torn curtain could not support a violation.
In the instant case, the evidence establishes that the
inspector had no personal knowledge that the extendable curtain
had been purportedly snagged by the machine and that this may
have caused a temporary interruption in the ventilation or somehow prevented the roof bolters from installing the curtain and
having it in place at the time of her arrival on the scene. The
inspector's unrebutted testimony reflects that when she arrived
at the scene, the roof-bolting machine was positioned to begin
bolting, the exten~able curtain had been moved back and positioned 24 feet from the face, and the blowing curtain was lying
on top of the machine.
Although the inspector conceded that if the bolters were to
follow normal procedures, they would first install the blowing
curtain, withdraw the extendable curtain, and then begin bolting,
she found that the bolters had moved the extendable curtain back
and had not put up the blowing curtain as required by the plan.
Although she also believed that the bolters would have installed
the blowing curtain if they had intended to do so before commencing bolting, she concluded that the bolters had not installed the
blowing curtain before retracting the extendable curtain because
the blowing curtain was lying across the machine and had not been

1406

installed to .within 10 feet of the face as required, and that the
resulting reverse procedure followed by the bolters resulted in
an unventilated face area. Further, while it is true that the
inspector did not ask the bolters about their intentions, or
whether they intended to install the blowing curtain before they
began bolting, she confirmed that it would have made no difference since the removal of one type of ventilation in preparation
for the installation of another type of ventilation would still
constitute a violation because face ventilation was not being
maintained at all times 10 feet from the face.
The inspector confirmed that she saw no evidence of any work
being performed by the bolters, and that they were simply standing by the machine and offered no explanation as to why they had
removed the ventilation curtains out of sequence, or why the
curtains were not installed. She saw no evidence that the
extendable curtain had been caught or ripped by the machine, and
after remaining at the scene to allow the bolters sufficient time
to install the blowing curtain, she observed this being done
within 5 minutes. She confirmed that had the bolters told her
that the curtain was torn down by the machine, she would have
taken this into consideration, but that it would have made no
difference since any entanglement of the extendable curtain would
not have prevented the bolters from installing the blowing curtain before retracting the extendable curtain. The inspector
further confirmed that union safety committeeman Jerry Jones was
with her during the inspection, and that on the morning of the
hearing, he told her that both roof bolters disagreed with
Mr. Nogosky's contention that the curtain had been caught in the
machine, but that one of the bolters had "changed his story". and
confirmed that the curtain had been caught in the machine, but
the other bolter told him that this was not the case.
The respondent's assertion that the extendable curtain had
been caught in the roof-bolting machine is based on the hearsay
testimony of its safety manager Joseph Nogosky.
He testified
that in the course of his investigation concerning the issuance
of the order the roof bolters informed him that the extendable
curtain became entangled in the roof-bolting machine while it was
being trammed in the entry and that the curtain was retracted so
that it could be disentangled from the machine. Mr. Nogosky
stated further that the bolters told him that they retracted the
curtain before putting up the blowing curtain, that they intended
to install the blowing curtain before starting bolting, and were
in the process of doing so when the inspector arrived on the
scene, and that they tried to explain the circumstances to the
inspector, but that she stated that it did not matter and
instructed them to hang the curtain up before leaving. He also
stated that one of the bolters told him that he had a hook in his
hand preparing to hang up the blowing curtain, and that one could
assume from this that the bolter was going to install the
curtain.

1407

Mr. Nogosky was not with the inspector during the inspection
and issuance of the citation, and he confirmed that he made no
formal report of his investigation and had nothing in writing to
support his testimony concerning what the bolters purportedly
told him. Although he indicated that he had made notes, they
were not produced or offered during the hearing. The two roof
bolters in question did not testify, and their pretrial depositions were not taken. Mr. Nogosky stated that the roof bolters
initially expressed their willingness to testify, but later
changed their minds, and it was then too late to subpoena them.
Although Mr. Nogosky indicated that other individuals may have
been present when he interviewed the roof bolters, the respondent
failed to call any other witnesses for testimony. Mr. Nogosky
confirmed that he made no effort to contact the inspector when
the order issued to explain what the roof bolters purportedly
told him, and that he did not seek a conference with MSHA with
respect to the order.
Safety committeeman Jerry Jones testified that he was present at "the tail end" of the investigation conducted by
Mr. Nogosky, and he confirmed that the two roof bolters gave him
conflicting accounts with respect to whether or not the extendable curtain had been caught in the roof-bolting machine.
Mr. Jones stated that one of the bolters told him that the curtain had not been caught in the machine, and the other bolter
told him that he had knocked the curtain down with the machine.
Although relevant and material hearsay testimony is admissible in Mine Act proceedings, Secretary of Labor v. Kenny
Richardson, 3 FMSHRC 8, 12 n. 7 (January 1981), aff'd 689 F.2d
632 (6th Cir. 1982), cert. denied, 77 L.Ed.2d 299 (1983), and
Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1135-1137 (May
1984), Mr. Jones' testimony, which I find credible, concerning
the conflicting accounts given to him by the two roof bolters,
cast serious doubts in my mind with respect to the reliability
and probativeness of the purported statements made by these
bolters to Mr. Nogosky during his investigation, and I have given
little weight to Mr. Nogosky's uncorroborated and undocumented
testimony.
Having viewed the inspector during her testimony, I find her
to be a credible witness and believe her testimony that she saw
no evidence of the curtain being caught in the machine, and that
the roof bolters offered no explanation as to why they had not
installed the ventilation curtains in question.
Further, even if
I were to believe that the curtain had been torn, the evidence
nonetheless establishes a violation because the blowing curtain
was not installed and laying on the machine, and Mr. Nogosky
conceded this was the case. Under all of these circumstances, I
conclude and find that a preponderance of all of the credible and

1408

probative evidence in this case establishes a violation of section 75.316, and the violation issued by the inspector IS
AFFIRMED. The respondent's asserted defense and reliance on the
Freeman case, supra, IS REJECTED.
I cannot conclude that the
circumstances presented were so abnormal as to absolve the
respondent from its responsibility to insure that its ventilation
plan was followed.
Significant and Substantial Violation
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum the Secretary of Labor must
prove:
(1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is,
a measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

1409

The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
The inspector's unrebutted credible testimony reflects that
the respondent's mine is a gassy mine which freely liberates
methane, and because of this, it is subject to weekly spot
inspections by MSHA. She believed that the failure to maintain
the ventilation curtain to within 10 feet of the face to control
methane and carry away hazardous dust presented a potential for a
methane buildup at the face, and that such methane accumulations
presented an ignition, fire, and explosion hazard, and that in
the event of such incidents, it would be highly likely that
miners working in the affected area would likely suffer burn
injuries.
At the time of the inspection, the inspector was aware of
the fact that a methane ignition and fire had previously occurred
on another section of the mine on September 19, 1988, and that
two miners suffered burns as a result of that incident. MSHA's
report of investigation of that incident reflects that the ignition occurred when a flammable methane/air mixture was ignited by
heat and/or sparks generated from the cutting head of a continuous-mining machine while cutting top rock down (exhibit P-4).
The report also reflects that at the time of the ignition, the
ventilation line curtain was approximately 25 feet of the face,
in violation of section 75.316, that the cutting sequence mandated by the approved ventilation system and methane dust-control
plan was not being followed, and that the continuous-mining
machine methane monitor was not properly calibrated.
The inspector also confirmed that she previously issued two
citations on January 18, 1989, for violations of section 75.316,
and the approved ventilation plan, because of the failure by the
respondent to maintain the ventilation curtains to within 10 feet
of the face, and that she also issued a citation and section
104(d) (2) order and imminent danger order on December 6, 1988,
and October 11, 1988, citing violations of section 75.302-l(a),
because of the failure by the respondent to maintain the ventilation curtains to within the required distances from the face
(exhibits P-5 through P-8).
In the instant case, the inspectors testified credibly that
at the time she observed the cited conditions, the roof-bolting
machine was positioned to begin roof bolting, and that the
machine was a source of ignition because it generates heat capable of igniting methane. She also believed that any permissibility violations with respect to the roof bolter, and friction
from the drill bits, would also be potential sources of ignition.

1410

Although she conceded that the two roof bolters had not actually
commenced bolting when she observed the condition, and that no
roof bolting was taking place, and she found no permissibility
violations, since the mining machine had just finished cutting
coal and would be moved to another entry, the two roof bolters
were there to begin bolting, and she considered all of these
factors in the context of continued mining operations, including
her expectation that the roof bolters would normally have started
bolting operations. Given her prior experience with previous
citations which she had issued for not maintaining the ventilation curtains, I.cannot conclude that the inspector's belief that
the bolters would commence bolting operations without the
required ventilation curtains in place was unreasonable.
The respondent asserts that while there was a momentary
interruption to ventilation, little if any hazard resulted, and
that the regular line brattice was in place within 24 feet of the
face, no mining was taking place, and that 0.2 percent methane
was present at the last permanent support 20-22 feet from the
face.
The respondent acknowledges that the roof-bolting machine
was energized, and that the bolters told the inspector that they
had pulled the extendable curtain back to prepare for bolting
before installing the blowing curtain, and that they knew that
the respondent's ventilation and dust-control plan required the
blowing curtain to be installed before pulling back the extendable curtain.
The section foreman did not testify in this case. The
respondent's safety manager Joseph Nogosky, who did not accompany
the inspector and did not observe the cited conditions, conceded
that the roof bolters had not as yet completed their work shift
at the time the order was issued by the inspector, and that they
would have been in the process of bolting since the day crew had
not as yet arrived to "change out" with them. Mr. Nogosky also
conceded that the ventilation plan required the blowing curtain
to be installed first before the extendable curtain was
installed, and that the blowing curtain was not up when the
inspector observed the cited condition.
After careful review of all of the evidence and testimony, I
conclude and find that the credible testimony of the inspector
establishes that the violation was significant and substantial.
The respondent's assertion that the "momentary lapse" of ventilation did not present a hazard is rejected. The respondent's
assertions that no hazard existed because the roof bolter was not
in operation and that only .2 percent methane was detected
20-22 feet the face is likewise rejected.
In my view, it is
highly likely that methane can rapidly accumulate at the face
during "momentary lapses" of ventilation, and the inspector
explained that higher methane readings may be expected in the
face, particularly when a line curtain is not in place.

1411

In United States Steel Mining Co., 3 MSHC 1282 (1984), the
judge upheld a violation of section 75.316, and found that it was
a significant and substantial violation because the reduced
amount of ventilation air reaching the face as a result of a
reversal in the air course made concentrations of methane more
likely.
In the instant case, the mine liberates methane freely
and is on a weekly spot inspection cycle. A methane ignition and
fire had previously occurred less than 5-months prior to the
inspection in question, with resulting burn injuries to two
miners. The prior failure by the respondent to maintain the
ventilation curtains as required by its plan is evidenced by the
prior violations issued by this same inspector.
In view of all
of this information which was available to the inspector, I
conclude and find that her belief that roof bolting would have
proceeded in the normal course of mining operations, and that it
was reasonably likely that another methane ignition would have
occurred because of the failure to properly maintain the ventilation curtains cited in this case, was reasonable in the circumstances. Accordingly, I agree with the inspector's significant
and substantial finding, and IT IS AFFIRMED.
The Unwarrantable Failure Issue
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:
In light of the foregoing, we hold that an inspector should find that a violation of any mandatory
standard was caused by an unwarrantable failure to
comply with such standard if he determines that the
operator involved has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of a lack
of due diligence, or because of indifference or lack of
reasonable care.
In several recent decisions concerning the interpretation
and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded
that it means "aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of
the Act." Energy Mining Corporation, 9 FMSHRC 1997 (December
1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December
1987); Secretary of Labor v. Rushton Mining Company, 10 FMSHRC
249 (March 1988). Referring to its prior holding in the Emery
Mining case, the Commission stated as follows in Youghiogheny &
Ohio, at 9 FMSHRC 2010:

1412

we·stated that whereas negligence is conduct that
is "inadvertent," "thoughtless" or "inattentive,"
unwarrantable conduct is conduct that is described as
"not justifiable" or "inexcusable." Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more that ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.
In Emerv Mining, the Commission explained the meaning of the
phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of the
phrase "unwarrantable failure."
"Unwarrantable" is
defined as "not justifiable" or "inexcusable." "Failure" is defined as "neglect of an assigned, expected,
or appropriate action." Webster's Third New International Dictionary (Unabridged) 2514, 814 (1971)
("Webster's").
Comparatively, negligence is the failure to use such care as a reasonably prudent and careful person would use and is characterized by
"inadvertence," "thoughtlessness," and "inattention."
Black's Law Dictionary 930-31 (5th ed. 1979). Conduct
that is not justifiable and inexcusable is the result
of more than inadvertence, thoughtlessness, or
inattention. * * *
The Petitioner's Arguments
In support of the inspector's unwarrantable failure finding
in this case, the petitioner does not contend that violations are
unwarrantable per se, when there exists prior violations of the
same standard. The petitioner takes the position that "the
unique factual history in this case, especially management's
involvement," compels the conclusion that the respondent demonstrated "indifference" or "total lack of interest" regarding
ventilation curtain violations, and that such indifference is
demonstrated by management's condoning of the curtain violation
in question.
In support of its argument, the petitioner asserts that
Inspector McCormick was assigned to the subject mine in
September, 1988, and that her initial involvement with curtain
violations occurred when she terminated two section 104(d) (2)
orders which had been issued on September 20, 1988, on the No. 9
section for violations of section 75.316, and the same ventilation plan at issue in the instant case (exhibit P-4). The petitioner points out that one of the orders was issued for a
violation of the identical plan provision which was violated in
this case (failure to maintain an extendable line curtain to
within 10 feet of the face), that the violation contributed to a

1413

methane ignition, that burned two miners, and that the respondent's section coordinator, Paul Boyd, was present during MSHA's
investigation of that incident.
·
The petitioner asserts that 3 weeks after the aforesaid
methane ignition, Inspector McCormick issued a section 104(d) (2)
order on October 1, 1988, on the No. 9 section, for a violation
of section 75.302-l(a), for failure to maintain a line curtain to
within 10 feet of a face where a continuous-mining machine was in
operation (exhibit P-6).
Petitioner points out that the respondent's section coordinator Paul Boyd was in the working place at
the time of the violation, and since Mr. Boyd had been involved
in the previous MSHA investigation of the September, 1988,
methane ignition, it concludes that Mr. Boyd condoned the violation issued by Inspector McCormick.
The petitioner asserts that the next experience Inspector
McCormick had with line curtain violations was on December 6,
1988, when she issued a section 104(a) citation for a violation
of section 75.302(a), after finding that a line curtain on the
No. 9 section had bene partially removed by a scoop crew, and
that this condition contributed to an imminent danger which she
issued in connection with the citation in that 1.4 percent
methane was detected at the face (exhibits P-7, P-8).
The petitioner states that the final line curtain violation
detected by Inspector McCormick prior to the issuance of the
contested order in this case occurred on January 18, 1989, when
she issued two section 104(a) citations for violations of section
75.316, for the failure to install line curtains to within
10 feet of the face in the No. 3 and No. 4 entries of the No. 10
section.
The petitioner asserts that these violations were not
particularly hazardous because no equipment was in either place
at the time. However, the petitioner views these citations as
significant because Glenn Rollins, the owl shift foreman
responsible for the two roof bolters in the instant case, was
also "involved" with the two prior citations. Under the circumstances, the petitioner believes that the issuance of these
citations had no deterrent effect because the order issued by the
inspector in the instant case came 2 weeks later for a violation
of the same regulation on the same mine secti~n.
The petitioner believes that after the September ignition in
which two miners were burned, "one would think that line curtain
violations would be non-existent at the Oak Grove Mine." Yet
3 weeks after the ignition, the section coordinator condoned the
same violative practice on the same section, and notwithstanding
these two events, line curtain violations continued, and the
inspector found three identical violations on the same section
within three inspection shifts. The petitioner concludes that
the serious nature of these violations and their recurring frequency demonstrates an "indifferent" attitude and a "total or

1414

nearly total. lack of interest" by the respondent and that it
appears that the respondent considered the violations of "little
consequence" as evidenced by their recurring frequency.
The Respondent's Arguments
The respondent argues that only a mine operator can commit
an unwarrantable failure violation, and that under section 3(d)
of the Act, an operator includes a person who operates, controls
or supervises a mine but does not include a rank-and-file miner.
Citing Rochester & Pittsburgh Coal Co., ·11 FMSHRC 1978, 1983
(October 1989), the respondent takes the position that the conduct of a rank-and-file miner cannot be imputed to a mine operator for purposes of an unwarrantable failure finding and that
the action of the two roof bolters in this case are immaterial in
determining whether an unwarrantable failure occurred since the
actions of the respondent's management personnel alone are
relevant.
The respondent asserts that the inspector's belief that an
unwarrantable failure occurred because "a particularly hazardous
situation" existed that imposed a "heightened duty" upon the
respondent "to be aware of what electrical equipment was doing in
the face," and that she considered the fact that the line curtain
was further than 10 feet from the face to be a particularly
hazardous condition is impossible to reconcile with the ventilation plan which requires the extendable line curtain to be
retracted before the first row of bolts is installed. Respondent
asserts that as bolting progresses, the curtain is advanced to
the first row of bolts outby the row being set, and that the
curtain is not extended to within 10 feet of the face until
bolting is completed. Under these circumstances, the respondent
concludes that the "particularly hazardous situation" is an
approved practice under its ventilation plan.
The respondent argues that the inspector's perception that
the respondent had a "heightened duty" to be aware of what the
equipment was doing in the face is based on an erroneous assertion that the day shift section foreman Milton Presley should
have checked on the roof bolter operators (Tr. 48-51). Respondent points out that the cited incident occurred at 7:14 a.m.,
before the "hot seat" crew change took place and that the roof
bolters were owl shift crew members who were supervised by that
shift's section foreman Glen Rollins, and that Mr. Presley and
his day shift crew had not yet arrived on the section (Tr. 51,
164-165).
With regard to the inspector's reliance on the respondent's
history of prior violations, the respondent asserts that the fact
that a similar violation occurred in the past does not establish
inexcusable neglect if such a violation reoccurs. The respondent
points out that the previously cited conditions in the No. 10

1415

section were not similar to the conditions cited in the instant
case and there was no equipment in the place where the curtain
had not been maintained within 10 feet of the face.
Further,
there is no evidence that the two bolters in this case were
involved in the prior incident. Under the circumstances, the
respondent concludes that foreman Rollins had no reason to
closely supervise two experienced bolters in the performance of
routine work when they had exhibited no carelessness or neglect
in the past, and he had no obligation to be present while they
moved the roof-bolting machine into place to commence bolting,
and that his failure to supervise their every move is not aggravated conduct amounting to an unwarrantable failure.
The evidence establishes that during a "hot seat" change
between working shifts there is little or no interruption in the
production cycle and the equipment is not shutdown and is
generally in use between shifts.
The inspector conceded that
when she arrived at the scene, the shifts were in the process of
changing, and that the two roof bolters were from the "owl shift"
and were only present for 5 or 10 minutes prior to her arrival.
Although the inspector also conceded that she would not have
expected the fire boss to observe that the ventilation curtains
were not in place and take appropriate action, she believed that
in light of the prior history of citations, the section foreman
should have checked on the roof bolters when they were in the
cited area to insure that they complied with the ventilation
plan.
The evidence further establishes that Inspector McCormick
was on the section during the day shift.
She testified that the
section foreman was not on the section when she arrived and that
he was "outby." She stated that she met him as she was leaving
the working place, but she could not recall speaking with him,
and she conceded that she made no inquiries to determine when the
foreman had last been with the roof bolters.
She identified the
foreman as the day shift foreman Milton Presley, but she admitted
that the owl shift section foreman who was responsible for the
supervision of the roof bolters in question was Glen Rollins and
that he was leaving the section as she was coming in (Tr. 48-52).
Although the inspector testified on direct that she spoke with
Mr. Rollins (Tr. 51), she later testified that she could not
recall speaking with him (Tr. 160). She also confirmed that she
encountered Mr. Presley after she had issued the violation (Tr.
159) .
I find the inspector's expectation that day shift foreman
Presley should have been present to observe the roof bolters to
insure the proper placement of the ventilation curtains to be
unreasonable. As the day shift foreman, Mr. Presley had no
supervisory responsibility for the roof bolters who were under
the supervision of Mr. Rollins, and at the time the inspector met
Mr. Presley she had already issued the violation. With regard to

1416

Mr. Rollins, .al though the inspector indicated that she was leaving the scene to find him (Tr. 61), her testimony that she may
have spoken with him is contradictory, and there is no evidence
that she ever discussed the matter with him or that she had any
evidence that he was never present when the roof bolters may have
been working on the section, or that he was aware of the fact
that the ventilation curtains were not in place.
I find no support for the inspector's belief or suggestion
that foreman Rollins should have been present when the roof
bolters were performing their work to insure that the ventilation
curtains were properly in place. There is no evidence that the
roof bolters were other than experienced miners, nor is there any
evidence that they were ever involved in any of the other previously issued citations relied on by the inspector as part of
her unwarrantable failure finding.
The inspector testified that
the roof bolters would normally go about their business and
install the ventilation curtains before beginning their roof
bolting duties.
In the absence of any evidence that the roof
bolters were not properly trained, were ignorant of the requirements of the ventilation plan, or had engaged in previous acts of
carelessness or neglect, I find no basis for concluding that
Mr. Rollins should have been expected to be present when they
were preparing to roof bolt in order to insure that the ventilation curtains were properly in place. Notwithstanding the issuance of the prior citations, and the fact that Mr. Rollins may
have been aware of these citations, I find no reason why he
should be required or expected to be present in each and every
working place on the section to personally supervise his crew
while they go about their work. If the petitioner believes that
such a requirement may be necessary as part of the respondent's
ventilation plan, it may wish to explore this further as part of
the regulatory ventilation plan approval process.
With regard to Mr. Rollins' "involvement" with the previous
citations issued by the inspector on January 18, 1989, no further
testimony or explanation was forthcoming from the inspector as to
the extent of Mr. Rollins' involvement other than that the citations were issued on the number 10 section.
I take note of the
fact that the citations were served on J. c. Simms, and that they
were issued during the day shift at 9:30 and 9:35 a.m. (exhibit
P-5). The inspector confirmed that these previously issued
citations did not involve any roof-bolting machine in place in
the face area, and in fact, the inspector conceded that no mining
activity was taking place, and no equipment was in place in the
cited areas, and the petitioner conceded that the violations were
not particularly hazardous.
With regard to the petitioner's arguments concerning the
respondent's section coordinator Paul Boyd, and his "involvement"
with the prior citations in September, 1988, and October, 1988,
the record reflects that Mr. Boyd's "involvement" with the

1417

September, 1988 citations which resulted from the methane ignition, was limited to his participation in the MSHA investigation
of that incident (exhibit P-4). Mr. Boyd's "involvement" in the
October, 1988, was more direct in that Inspector McCormick served
the violation on him, indicated in the face of the order that
"the section coordinator" was.in the place at the time the violative conditions were observed, and she testified that this was in
fact the case (Exhibit P-6, Tr. 25, 33).
I take note of the fact that the prior citations concerning
Mr. Boyd were issued on the No. 9 section, and not the No. 10
section where the violation in the instant case occurred. The
October, 1988, citation concerned a violation of section
75.302-l(a), and a continuous-mining machine, rather than a roof
bolter, was operating in the section. MSHA's report of investigation reflects that the September, 1988, citations concerned a
methane ignition which occurred when a continuous-mining machine
was cutting down top rock.
Although Inspector McCormick testified that a section
coordinator, such as Mr. Boyd, had supervisory authority over all
of the section foremen, she confirmed that his supervisory
authority was limited to the foremen on the No. 9 section, and
not to foremen on the No. 10 section, or foremen in general (Tr.
33). There is no evidence that Mr. Boyd exercised any supervisory authority over section foremen Rollins or Presley, the
foremen on the No. 10 section at the time the violation in the
instant case was issued.
I find no evidence to support the petitioner's conclusion
that the respondent's section coordinator Paul Boyd condoned
violations of the respondent's ventilation plan or violations of
the previously cited safety standards. Such a conclusion concerns possible criminal conduct and should not be made or taken
lightly.
If the Secretary truly believes that a culpable section
foreman or other member of mine management has engaged in any
such egregious conduct with respect to violations of the law she
should seriously consider instituting a section llO(c) proceeding
against the offending party rather than "bootstrapping" such an
unsupported conclusion as part of an unwarrantable failure argument. Further, if the Secretary also believes that a mine operator's mine management has exhibited "indifference" or a "total
lack of interest" regarding repetitious violations, she should
seriously consider the timely implementation of the "pattern of
violations" provisions found in section 104(e) (1) of the Act.
In
my view, the use of these available statutory sanctions would
provide a more direct and effective means of insuring compliance
in an appropriate situation.
In the instant case, the unrebutted testimony of safety
manager Joseph Nogosky reflects that the respondent took disciplinary action against Mr. Boyd as a result of the October,

1418

1988, citation issued by the inspector (Tr. 149). The record
also reflects that Mr. Nogosky conducted an investigation of the
contested order in this case, and that the mine safety committee,
the general mine foreman, and the mine superintendent were present during the inquiry. Mr. Nogosky confirmed that he spoke with
foreman Rollins and the roof bolters in an effort to ascertain
why the order had issued, and he stated that it is a common
practice at the mine for management to investigate all unwarrantable failure orders (Tr. 109). Mr. Nogosky further confirmed
that the roof bolters were not disciplined because he believed
they reacted properly to an "abnormal situation" (Tr. 121).
In view of the foregoing, I cannot conclude that mine
management was indifferent or "lacked interest" in the order
issued by the inspector in this case. The record establishes
that management disciplined section coordinator Boyd, and following its customary procedure, investigated the circumstances
surrounding the issuance of the contested order by the inspector
in this case.
Further, the UMWA chairman of the mine safety
committee Jerry Jones testified that he conducted no investigation of the incident, failed to tell mine management about the
conflicting "stories" related to him by the two roof bolters, and
no testimony was forthcoming from Mr. Jones about any of the
prior citations or the asserted general neglect of ventilation
curtain requirements on the part of mine management.
I also take
note of the fact that the cited conditions in this case were
abated within 6 minutes, that the two prior citations issued by
the inspector in January, 1989, were terminated within 10 and
20 minutes, and that the citation of December, 1988, was terminated within 13 minutes.
The petitioner in this case does not contend that repetitious violations of a mandatory standard may per se serve as the
basis for an unwarrantable failure finding.
Inspector McCormick
testified that part of her unwarrantable failure finding was
based on the respondent's prior violations (Tr. 27, 29, 61), but
that this was but one factor that she considered (Tr. 29).
The
other factor which she considered was her belief that the respondent had a "heightened duty to be aware of what the electrical
equipment was doing in the face" because in her view, the violative conditions presented a "particularly hazardous situation''
which the respondent should have been aware of (Tr. 27, 47-48).
In my view, the inspector's concern about any hazards associated
with the cited conditions is relevant in the context of a gravity
or "S&S" finding, rather than the unwarrantable nature of the
violation.
The thrust of the petitioner's unwarrantable failure argument is its belief that mine management has engaged in a course
of conduct which establishes that it condones violations of its
ventilation plan and has clearly demonstrated an "indifferent"
attitude and "lack of interest" in insuring compliance with the

1419

mine ventil.ation plan. However, in view of the above findings
and conclusions, and. after careful consideration of the entire
record in this case, I find no evidentiary support for the petitioner's arguments and conclusions concerning the conduct of mine
management in this case. I cannot conclude that the petitioner
has established any aggravated conduct on the part.of the respondent with respect to the contested order issued by the inspector
in this case. Under the circumstances, the inspector's finding
in this regard IS VACATED, and the order IS MODIFIED to a section
104(a) citation, with "S&S" findings.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
The parties stipulated that the respondent is a large mine
operator and that the payment of the civil penalty assessment for
the violation will not adversely affect its ability to continue
in business.
I adopt these stipulations as my findings and
conclusions on these issues.
Good Faith Abatement
The parties stipulated that the violation in question was
timely abated by the respondent. The record establishes that
abatement was completed within 5 or 6 minutes when the roof
bolters installed the required ventilation curtains.
I conclude
and find that the cited conditions were timely abated in good
faith by the respondent.
Gravity
In view of my "S&S" findings, I conclude and find that the
violation was serious.
Negligence
I conclude and find that the violation resulted from the
respondent's failure to exercise reasonable care to insure that
the required ventilation curtains were installed and in place at
the time the inspector observed the cited conditions, and that
this failure on the respondent's part was the result of ordinary
negligence.
History of Prior Violations
The petitioner did not produce or offer a computer print-out
listing the respondent's prior compliance record. The pleadings
include an MSHA Form 1000-179, which is a part of the proposed
assessment "papers" served on the respondent, and the information
contained therein reflects that the respondent was cited for 518
assessed violations during the 24-month period preceding the
issuance of the contested order. However, in the absence of any

1420

computer print-out or further information concerning the total
number of section 75.316 violations, I am unable to make any
specific conclusions or findings other than to take note of the
total number of prior assessed violations attributable to the
respondent. However, I have taken this information into consideration, including copies of the prior citations which are of
record in this case; which reflect four prior violations of
section 75.316.
Civil Penalty Assessment
The respondent took issue with the narrative findings of
MSHA's "Special Assessment" office which indicates that the roof
bolters were actually installing roof bolts at the time the
inspector observed the cited conditions. The inspector agreed
that these "assumptions" are incorrect and that the bolters were
not installing roof bolts when she observed the violative conditions. The respondent also took issue with several other
"assumptions" and "conclusions" which appear in the narrative
findings, and he inspector agreed that some of these are
incorrect (Tr. 67-73). It is clear that I am not bound by any
"special assessment" made in this case, nor am I bound by the
narrative statements made in support of the proposed civil penalty assessment made in this case. In any event, I find merit in
the respondent's objections to the accuracy of these statements
and have considered its arguments in connection with the civil
penalty assessment which I have made in this case.
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section llO(i) of the Act, I conclude and find that a civil
penalty assessment in the amount of $500 is reasonable and appropriate in this case.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
in the amount of $500 for the violation which has been affirmed
in this case.
Payment is to be made to the petitioner within
thirty (30) days of the date of this decision and order, and upon
receipt of payment, this matter is dismissed.

1421

Distribution:
William Lawson, Esq., Office of the Solicitor, U.S. Department of
Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL 35203
(Certified Mail)
Billy M. Tennant, Esq., Employee Relations, U.S. Steel Mining
Co., Inc., 600 Grant street, Room 1580, Pittsburgh, PA 15219-4776
(Certified Mail)
/fb

1422

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

JUL 6 1990
CONSOLIDATION COAL COMPANY,
Contestant
v.

.
.

CONTEST PROCEEDINGS

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

Docket No. PENN 90-47-R
Order No. 3098641: 12/14/89
Dilworth Mine
Docket No. WEVA 90-50-R
Order No. 3311391: 12/6/89
Blacksville No. 2 Mine

DECISION
Appearances:

Walter J. Scheller, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Contestant:
Page H. Jackson, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, Virginia, for
the Respondent.

Before:

Judge Maurer

These cases are before me under section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
~., hereinafter the "Act".
Pursuant to notice, these cases were called for hearing in
Morgantown, West Virginia on March 21, 1990, and were heard at
that time. On June 1, 1990, the parties filed post-hearing briefs
which I have considered along with the entire record in making
this decision.
At the hearing, the contestant moved to withdraw the
application for review in Docket No. PENN 90-47-R based on the
fact that section 107(a) Order No. 3098641 had been vacated. The
Secretary had no objection and I granted that motion on the
record and therefore dismissed the contest proceeding.
Docket No. WEVA 90-50-R; Order No. 3311391
Order No. 3311391, issued pursuant to section 107(a) of the
Act, was issued on December 6, 1989, by MHSA Inspector Lynn

1423

Workley at the Blacksville No. 2 Mine operated by the contestant.
That order charges as follows:
Information gathered from miners and site inspection
indicates that it is a practice at this mine for
wiremen to install wire above rail placed on unsecured
ties over low and irregular areas. Dan Meyers and Pete
Yost both stated that they have slipped and fallen
while attempting to install wire in such areas.
On December 6, 1989, Inspector Workley was told by a
Mr. Michael Ayers, who is the President of the union local and a
safety committeeman, that a hazardous condition existed in that
wiremen were working off unsafe platforms while hanging wire in
the Six South grade job area. He reported that there had been
several instances where the wiremen had nearly fallen.
Inspector Workley went into the mine to have a look for
himself. He was accompanied by Jay Simes, the miners'
representative and Todd Moore, the Company safety representative.
When he arrived in the Six South area, he also met Mr. Daniel
Myers, one of the wiremen.
They proceeded to the Six South supply track. The bottom in
this area had been graded, but was irregular with bumps and dips
which had loose unconsolidated lumps and small pieces of rock
strewn along it. The wooden ties had been laid down, but the
rails were not spiked to these cross-ties. Since the bottom was
irregular, the rails laid along the entry were six inches to a
foot and a half above the cross-ties in places. The wooden
cross-ties on the mine floor were on loose, unconsolidated
material and were tipped in various directions. The rails
themselves had been joined together at 10 to 12 foot intervals
with steel ties. The mine roof in this area varied from six and
one-half to nine feet above the mine floor.
The trolley wire was
already installed approximately 72 inches above where the top of
the rails would eventually be when the rails were installed and
ballasted with crushed limestone. The wire would also be
approximately six inches outside the gauge of the rail.
Inspector Workley stepped up on a rail in an area where it
did not rest on the wooden cross-ties and found that the rail
bounced up and down under his weight. Mr. Moore stated to the
inspector that the company didn't want the wiremen to install
wire that way. They wanted them to lay down boards on the
cross-ties for a platform to work on. However, in the considered
opinion of the inspector, that would not have provided a stable
work platform either. The inspector testified that he told
Mr. Moore that he (the inspector) didn't think that you could lay
boards on ties which tip from one side to the other and roll

1424

forward and back as well and make a stable work platform out of
it.
Mr. Daniel Myers has been employed by Consolidation Coal
Company at the Blacksville No. 2 Mina since 1971 and has been a
wireman for the past five years. As such, he installs trolley
wire in construction and development areas of the mine.
Installation of the trolley wire involves drilling holes in
the roof, making up wire hangers, installing them, including
lining them up and tightening them, placing the trolley wire
on the hangers and pulling it tight with come-alongs and placing
the trolley wire into the trolley clamp of each hanger and
tightening up that clamp.
The established practice at the Blacksville No. 2 Mine was
to install the trolley wire prior to spiking the rails to the
cross-ties at least in those areas of the mine where the bottom
was low and irregular. Mr. Myers testified that to tighten the
wire hangers, a wireman stood on a five-gallon bucket resting on
the loose and unsecured cross-ties. When he tightened the
trolley wire in the trolley clamp, he stood on the rail suspended
between high areas of the mine floor. Mr. Myers further
testified that when tightening the hangers and trolley clamps
"[y]ou put your whole body into it because you [sic] got to get
that thing tight because you got motors and stuff." If the
wrench slips during this tightening process '[y]ou're going off
of whatever your standing on."(Tr. 74j_ Myers also testified
that he has fallen a number of times while tightening wire
hangers and trolley clamps where the cross-ties were loose and
unsecured and believed that he could be seriously injured from
such a fall.
He opined that when the rails are spiked to the
cross-ties, a wireman has a more secure footing since the
cross-ties don't wobble.
On December 6, 1989, Myers related to Inspector Workley that
the wiremen were installing trolley wire in the above fashion,
i.e., standing on five-gallon buckets or on top of the steel
rails.
Inspector Workley considered what he had been told by Moore,
Ayers, and Myers and his own direct observation in the Six South
supply track and determined that an imminent danger existed and
so issued the order at bar. He believed that the practice of
installing trolley wire over unsecured cross-ties in low and
irregular areas of the mine posed several hazards to miners. One
was that a cross-tie would tip or roll under a wireman causing
him to be thrown to the mine floor or to strike parts of his body
against the rail, cross-ties, or the mine floor. Another was
that a wireman standing on the rail could easily slip off and

1425

fall onto the steel rail.
Inspector Workley characterized these
hazards as "[s]lip or trip and fall, stumble and fall." (Tr. 33).
He further testified that such an accident could result in
strains, sprains, broken bones, dislocations of bones, or if a
wireman struck his head on the steel .·rail, even fatal injuries.
There was much testimony from the operator's management
personnel to the effect that the wiremen had been instructed to
build platforms to make their job function safe. More
specifically, Myers in particular, was told not to stand on a
five-gallon bucket to reach over his head to install trolley wire.
I find credible that testimony that the wiremen had been
instructed to build the necessary platforms to make their work
area safe prior to the issuance of the imminent danger order at
bar. Furthermore, Myers admits that on at least one occasion he
was told to build a platform or to spike the rails to the ties
before hanging the trolley wire. He also admits to having stood
on a five-gallon bucket to perform his work both before and after
he was specifically instructed by mine management not to do so.
Nevertheless, the practice existed whereby wiremen stood on
five-gallon buckets placed on the top of teetering wooden ties
that were loose and unsecured while they worked off-balance over
their heads. They also stood on the unsecured moving rails to
work over their head on the trolley wire. The major point here
is that these practices in fact existed whether Consolidation
Coal Company management wanted them to or not.
Section 3(j) of the Act defines an imminent danger as:
The existence of any condition or practice in a coal or
other mine which could reasonably be expected to cause
death or serious physical harm before such condition or
practice can be abated.
The test of validity of an imminent danger order is whether
a reasonable person given a qualified inspector's education and
experience would conclude that the facts indicated an imminent
danger.
Freeman Coal Mining Co. v. Interior Board of Mine
Operations Appeals, 804 F.2d 741 (7th Cir. 1974). See also C.D.
Livingston, 8 FMSHRC 1006 (1986); and United States Steel, 4
FMSHRC 163 (1982).
In Roche.ster & Pittsburgh Coal Company v. Secretary of
Labor, 11 FMSHRC 2159, 2163 (November 1989), the Commission
adopted the position of the Fourth and Seventh Circuits in
Eastern Associated Coal Corporation v. Interior Board of Mine
Operation Appeals, 491 F.2d 277, 278 (4th Cir. 1974), and Old Ben
Coal Corp. v. Interior Board of Mine Operation Appeals, 523 F.2d
25, 33 (7th Cir. 1975), holding that "an imminent danger exists

1426

when the condition or practice observed could reasonably be
expected to cause death or serious physical harm if normal mining
operations were permitted to proceed in the area before the
dangerous condition is eliminated." In the Old Ben Corp. case,
the court stated as follows at 523 F.2d at 31:
Clearly, the inspector is in a precarious position. He
is entrusted with the safety of miners' lives, and he
must ensure that the statute is enforced for the
protection of these lives. His total concern is the
safety of life and limb •••• We must support the
findings and the decisions of the inspector unless
there is evidence that he has abused his discretion or
authority.
(Emphasis added).
The Commission stated as follows at 11 FMSHRC 2164:
In addition, R&P's focus on the relative likelihood of Coy
being injured while under the moving belt ignores the admonition
in the Senate Committee Report for the Mine Act that an imminent
danger is not to be defined "in terms of a percentage of
probability that an accident will happen." s. Rep. No. 181, 95th
Cong., 1st Sess. 38 (1977), reprinted in Senate Subcommittee on
Labor of the Committee on Human Resources, 95th Cong., 2nd Sess,
Legislative History of the Federal Mine Safety and Health Act of
1977 at 626 (1978).
Instead, the focus is on the "potential of
the risk to cause serious physical harm at any time." Id. The
Committee stated its intention to give inspectors "the necessary
authority for the taking of action to remove miners from risk."
Id.
According to MSHA Inspector Workley, the imminent danger
order was issued because of a "practice" which existed in this
mine as set out above.
Inspector Workley maintained that this
"practice" constituted an "imminent danger" because of the
injuries which might reasonably result from an unabated
continuation of this practice. I concur with the inspector that
the cited practice could reasonably be expected to cause serious
physical harm" if not discontinued.
I further find that the operator had at least permitted a
dangerous practice to exist by allowing these wiremen to install
trolley wire in the manner described earlier in this decision.
The fact that company management instructed the miners to install
the wire in some other safer fashion is not persuasive because it
is obvious to me that they have not taken adequate measures to
assure compliance with their directives in this regard. One
miner testified at the hearing that he is still standing on five
gallon buckets to install this wire.

1427

I conclude from .the entire record herein that the inspector
could not have been reasonably assured thai this practice would
be abated before a serious injury accident occurred. Under these
circumstances, I further conclude that the inspector as well as
the record herein provides a cogent ahd compelling- rationale for
issuing the order at bar and the facts presented in this record
fully support and meet the legal standard for the aff irmance of
this order. Accordingly, I find that there was an imminent
danger and affirm Order No. 3311391.
ORDER
Order No. 3311391 is affirmed and Contest Proceeding Docket
No. WEVA 90-50-R is dismissed.
Order No. 3098641 has been vacated by the Secretary and
therefore the contestant's motion to withdraw the application for
review docketed at PENN 90-47-R is granted and the proceeding
dismissed.

urer
ative Law Judge
Distribution:
Walter J. Scheller, III, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241
Page H. Jackson, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22303
(Certified Mail)
/ml

1428

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

JUL 6 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING

.

Docket No. WEST 90-25
A.C. No. 05-03455-03576

v.
ENERGY FUELS COAL
INCORPORATED,
Respondent

Southfield Mine

DECISION
Appearances:

Margaret A. Miller, Esq., Robert J. Murphy, Esq.
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Petitioner;
Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Respondent.

Before:

Judge Lasher

This proceeding was initiated by the filing of a petition
for assessment of penalties by the Secretary of Labor pursuant to
Section 110 of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 820 (1977) (herein the "Act").
This matter was consolidated and scheduled for hearing with
two other penalty dockets, WEST 89-440 and WEST 90-52. At the
commencement of the hearing on June 12, 1990, an overall settlement had been concluded and was announced covering all three
citations involved in this docket.
Such settlement agreement was
considered and approved from the bench and is here affirmed. The
prosecution of Citation No. 3077006 is to be dropped on the basis
of insufficient evidence. As to Citations numbered 3077007 and
3077008, the "Significant and Substantial" designations thereon
are to be deleted and penalties of $50 each are to be paid by the
Respondent.

1429

ORDER
1.

Citation numbered 3077006 is VACATED.

2. Citations numbered 3077007 and 3077008 are MODIFIED to
delete the "Significant and Substantial" designations thereon and
are otherwise AFFIRMED.
3. Respondent, if it has not previously done so, shall pay
to the Secretary of Labor, the total sum of $100 as and for the
civil penalties above specified and here assessed.

..
_,.· -"/ ~~ y"~
".
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,
.
,
.
. /-~
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,

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/

Michael A. Lasher, Jr.
Adminstrative Law Judge
Distribution:
Margaret A. Miller, Esq., Robert J. Murphy, Esq., Office of the
Solicitor, U.S Department of Labor, 1585 Federal Building, 1961
Stout Street, Denver, CO 80294 (Certified Mail)
Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700
Broadway, Suite 1700, Denver, CO 80290-1199 (Certified Mail)
/ek

1430

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

JUL 6 1990
SECRETARY OF LABOR,
.
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING

.

Docket No. WEST 90-52
A.C. No. 05-03455-03577

Southfield Mine

ENERGY FUELS COAL
INCORPORATED,
Respondent

DECISION
Appearances:

Margaret A. Miller, Esq., Robert J. Murphy, Esq.
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Petitioner;
Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Respondent.

Before:

Judge Lasher

This proceeding was initiated by the filing of a petition
for assessment of penalties by the Secretary of Labor pursuant to
Section 110 of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 820 (1977) (herein the "Act").
This matter was consolidated and scheduled for hearing with
two other penalty dockets, West 89-440 and WEST 90-25. At the
commencement of the hearing on June 12, 1990, a settlement had
been concluded and was announced covering all five citations
involved.
Such settlement agreement was considered and approved
from the bench and is here affirmed.
Petitioner's original administrative penalty assessments for
the five citations was $79 each. Pursuant to the settlement,
Respondent agrees to pay in full the $79 assessments for Citations numbered 3077014, 3077065, and 3240478. As to Citations
numbered 3077061 and 3077067, Petitioner agrees that the "Significant and Substantial" designations thereon should be deleted
and the parties concur as to assessment of $50 penalty for each.

1431

ORDER
1. Citations numbered 3077014, 3077065, and 3240478 are
AFFIRMED.
2. Citations numbered 3077061 and 3077067 are MODIFIED to
delete the "Significant and Substantial" designations thereon and
are otherwise AFFIRMED.
3. Respondent, if it has not previously done so, shall pay
to the Secretary of Labor, the total sum of $337 as and for the
civil penalties above specified and here assessed for the five
subject citations.

'2li-;~L(-;q~. ~Jd1 /J

Michael A. Lasher, Jr.'
Adminstrative Law Judge

Distribution:
Margaret A. Miller, Esq., Robert J. Murphy, Esq., Office of the
Solicitor, u.s Department of Labor, 1585 Federal Building, 1961
Stout Street, Denver, CO 80294 (Certified Mail)
Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700
Broadway, Suite 1700, Denver, CO 80290-1199 (Certified Mail)
/ek

1432

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

JUL 6 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF DAVID HOLLIS,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEVA 90-78-D
MORG CD 89-07

v.
Osage No. 3 Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
On June 28, 1990, the Secretary filed a Motion to Approve
Settlement. Counsel for David Hollis and Counsel for Consolidation
Coal Company signed the Motion indicating they agreed and consented
to it.
I approve the settlement as set forth in paragraph 8 of the
Motion, as it constitutes a fair disposition of the issues raised
by the Complaint.
Accordingly, the Motion is GRANTED, and pursuant
to the settlement, I her3by make all the specific findings as set
forth in paragraph 8.Ca>Cb) and (cf.
It is ORDERED that the findings and the terms of the Settlement, as set forth in paragraph 8 of the Secretary's Motion and
incorporated herein, are approved.
It is further ORDERED that Respondent shall:
a. Execute and mail an original copy of the notice attached
as Exhibit 1 to this Motion to David Hollis and to post a copy of
the notice at the Osage No. 3 Mine for a period of not less than
30 days:
b.
Expunge any reference to the events of the morning of
August 28, 1989, from all records maintained by Consolidation
Coal·Company which are searchable by the Complainant's name,
including but not limited to, the personnel records of Consolidation
Coal Company:
c. Give the training program, attached as Exhibit 2 to the
Motion, to the superintendent, the mine foreman, all mine safety
department personnel at the Osage No. 3 Mine, and to the Regional
Safety Manager of Consolidation Coal Company's Northern West
Virginia Division within 90 days of the date of this Decision:

1433

d.
Provide at least 48 hour written notification of the
time and location of all sessions of the training program to
MSHA's Morgantown, West Virginia Field Office and that representatives of MSHA have the right to be present at all such training
sessions;
e. Pay a civil penalty of $100;

f. Post a copy of the Motion to Approve Settlement and the
Decision ~pproving Settlament at the Osage No. 3 Mine for a
period of not less than 30 days.

~~

Avram Weisberger
Administrative Law Judge
Distribution:
Page H. Jackson, Esq., Office of the Solicitor, U. s. Department
of Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
CCertif ied Mail)
Walter J. Scheller, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified
~ail)

Steven P. McGowan, Esq., Steptoe & Johnson, 715 Charleston
National Plaza, P. O. Box 1588, Charleston, WV 25326 (Certified
Mail)
Allan N. Karlin, Esq., 174 Chancery Row, Morgantown, WV 26505
(Certified Mail)
dcp

1434

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

JUL 6 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF DAVID HOLLIS,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. WEVA 90-110-D
MORG CD 90-03
Osage No. 3 Mine

CONSOLIDATION COAL COMPANY,
Respondent
ORDER OF DISMISSAL
The Secretary filed a Motion to Withdraw Amended Complaint
and to Dismiss based on a statement by David Hollis, on whose
behalf the original Complaint of Discrimination had been filed,
that he is withdrawing his complaint in this matter. Complainant
filed a Response on which he indicated that he joins in the
Motion. Accordingly, pursuant to 29 C.F.R. § 2700.11, the Motion
is GRANTED.
It is ORDERED that this case be DISMISSED.

A~

Avram Weisberger
Administrative Law Judge

Distribution:
Page H. Jackson, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
(Certified Mail)
Walter J. Scheller, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified
Mail)
Steven P. McGowan, Esq., Steptoe & Johnson, 715 Charleston
National Plaza, P. O. Box 1588, Charleston, w-V 25326 (Certified
Mail)
Allan N. Karlin, Esq., 174 Chancery Row, Morgantown, WV 26505
(Certified Mail)
dcp
1435

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

JUL 9 1990
RICK STEVENSON,

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEST 89-130-D

v.
DENV CD 89-02
BEAVER CREEK COAL COMPANY,
Respondent

Trail Mountain No. 9 Mine
DECISION

Appearances:

Jonathan Wilderman, Esq., Wilderman & Linnet,
Denver, Colorado,
for Complainant;
Thomas F. Linn, Esq., David M. Arnolds, Esq.
Denver, Colorado,
for Respondent.

Before:

Judge Morris

This discrimination case,brought by complainant on his own
behalf, arises under Section 105(c) of the Federal Mine Safety
and Health Act, 30 u.s.c. § 801 et~ (the "Act").
After notice to the parties, a trial on the merits commenced
in Price, Utah, on April 4, 1990.
On the second day of the hearing, the parties reached an
amicable settlement. The consent of all parties to the agreement
was expressed on the record and the parties have filed confirming
documents.
The Judge, having heard the testimony for a full day,
believes the proposed settlement is reasonable.
At the hearing, the parties further requested that the Judge
place the terms of the settlement agreement, as well as the
transcript of the April 5, 1990, under the seal of the
Commission.
The joint motion to seal said documents is proper and was
granted and formalized by an order dated July 5, 1990.
For the foregoing reasons, I enter the following:

1436

ORDER
1. The settlement agreement of the parties herein is
APPROVED.
2.

The case is DISMISSED.

Law Judge
Distribution:
Jonathan Wilderman, Esq., Wilderman & Linnet, 4155 East Jewell
Avenue #500, Denver, CO 80222 (Certified Mail)
Thomas F. Linn, Esq., David M. Arnolds, Esq., ARCO, 555 - 17th
Street, 20th Floor, Denver, Co 80222 (Certified Mail)

/ek

1437

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

JUL 111990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF
GILBERT WISDOM,
Complainant

v.
F & W MINES, INC.,
Respondent

DISCRIMINATION PROCEEDING
Docket No. SE 89-102-DM
MD 88-60

.

State Road 520 Plant

SUPPLEMENTAL DECISION
Appearances:

Glenn M. Embree, Esq., U.S. Department of Labor,
Office of the Solicitor, Atlanta, Georgia, for the
Complainant;
James E. Foster, Esq., Foster & Kelly, Orlando,
Florida, for the Respondent.

Before:

Judge Maurer

Subsequent to a hearing on the merits in this case, a
Decision was issued on April 30, 1990, finding that the
respondent discriminated against the named complainant in
violation of section 105(c) of the Federal Mine Safety and Health
Act of 1977. The Decision further ordered as follows:
Complainant shall file a detailed statement within
fifteen Cl5) days of this Decision, indicating the
specific relief requested. The statement shall be
served on the respondent who shall have fifteen Cl5)
days from the date service is attempted to reply
thereto.
On May 22, 1990, the Secretary filed a statement pursuant to
this order. On May 31, 1990, in a telephone conference call,
both parties indicated that a settlement had been arrived at, and
that a signed stipulation and joint motion for approval of their
settlement would be submitted anon.

1438

The attorney for the Secretary filed the stipulation and
joint motion on July 5, 1990, and it provides as follows:
1. Respondent will pay to Mr. Gilbert Wisdom, as the full
and complete relief hereunder, back wages in the gross amount of
$5,000, less deductions required by law within 60 days of the
date of this stipulation.
2. Mr. Gilbert Wisdom and complainant hereby withdraw the
statement of relief, including any and all claims for
reinstatement, filed with the Commission on or about May 19,
1990.
3. The Secretary agrees to withdraw her prayer for
assessment of a civil money penalty.
I find the above settlement provides a fair resolution of
the case and I note that Mr. Gilbert Wisdom, personally, has
signed the stipulation and motion.
Therefore, IT IS ORDERED that:
1. The findings and conclusions of my decision issued on
April 30, 1990, are REAFFIRMED.
2. Respondent shall on or before the 3rd day of September,
1990, pay to Complainant, Gilbert Wisdom, the sum of $5000, less
applicable deductions as back wages.
3. The rights and obligations of all the parties to this
proceeding are set forth in the stipulation and joint motion for
relief filed on July 5, 1990, and all the parties shall abide by
all its terms.
4.

This decision is Final.

Law Judge
Distribution:
Glenn M. Embree, Esq., Office of the Solicitor, U.S. Department
of Labor, 1371 Peachtree Street, N.E., Room 339, Atlanta, GA
30367
(Certified Mail)
James E. Foster, Esq., Foster & Kelly, 20 North Orange Avenue,
Suite 600, Orlando, Florida 32801
(Certified Mail)
/ml

1439

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

JUL 12 1990
DISCRIMINATION PROCEEDING

RANDY CUNNINGHAM,
· Complainant

v.

Docket No. PENN 90-46-D
MSHA Case No. PITT-CD-90-3

CONSOLIDATION COAL COMPANY,
Respondent

Dilworth Mine
DECISION

Appearances:

Paul H. Girdany, Esq., Healey Whitehill,
Pittsburgh, Pennsylvania, for the Complainant;
David J. Laurent, Esq., Polito & Smock, P.C.,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Weisberger

Statement of the Case
This case is before me based on a complaint filed by Randy
Cunningham, alleging a violation of Section 105(c) (1) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c) (1)
(the Act).
Respondent filed an answer, and pursuant to notice,
the case was heard in Pittsburgh, Pennsylvania, on March 7, 1990.
At the hearing, Larry E. swift, and Randy Cunningham, testified
for.Complainant, and Louis Barletta, Dan Jones and Richard J.
Werth, testified for the Respondent. The parties filed briefs
containing proposed findings of fact on April 30, 1990. On
May 10, Respondent filed a reply brief; none was filed by
Complainant.
Findings of Fact
1. At all relevant times Complainant, Randy Cunningham, a
miner, worked as a roof bolter at Respondent's Dilworth Mine.
2.
Complainant at all relevant times was an elected safety
committeeman for Local Union 1980 of the United Mine Workers of
America (hereinafter "UMWA") at Respondent's Dilworth Mine,
having been elected to that position in May 1987.
3. Cunningham was the only safety committeeman at Respondent's Dilworth Mine who was working inside the mine.

1440

4.
Prior to August 3, 1989, safety committeemen were
allowed to leave their work stations early before their scheduled
quitting times to investigate safety problems, without seeking
approval from Respondent's management.
5.
Cunningham's production crew was again assigned to
change at the· face beginning in July, 1989, and within the first
2 weeks he left early four times on union business.
6. On August 3, 1989, Louis Barletta, Respondent's Superintendent, counselled Cunningham with regard to leaving work early
on union business and told him that henceforth he would not be
permitted to leave his work station before his scheduled quitting
time on a safety issue unless someone else invoked their safety
right.
7. On or about August 31, 1989 at a communications committee meeting between officials of the local union and the company,
Barletta announced that henceforth no one was allowed to leave
work before their scheduled quitting time for any reason except
to exercise their individual safety rights.
Barletta at that
meeting stated that it would be his sole decision as to whether
an employee/safety representative could leave work to pursue a
safety problem.
Complainant and Barletta argued at this meeting
about the rights of safety committeemen to pursue safety issues
on company time and Complainant again informed Barletta that, if
necessary, he would pursue safety issues on company time.
Barletta warned Complainant and others that failure to comply
with this newly announced policy could lead to disciplinary
action.
8. Around the beginning of the midnight shift, October 3,
Russell Camilli asked Cunningham if pushing wagons along the
haulage with one motor (locomotive) was allowed.
Camilli told
Cunningham that another employee, Russ Goodwin, was supposed to
be working with him, and that foreman Greg Alexander had told
them both to use only one motor. At approximately 1:10 a.m.,
Cunningham asked Jones if he had made such an assignment, and
informed him that it is contrary to a safeguard to push wagons
with a locomotive. According to Cunningham, Jones indicated that
his supervisor had told him that such an activity is allowed.
Jones explained that it was his understanding that it was permitted to push with a locomotive from switch to switch.
(I
accept Jones' version as it is not inconsistent with Cunningham's
version. Also, Complainant did not offer any rebuttal by
Cunningham to contradict Jones' version).
Cunningham then
indicated that he would seek the MSHA inspector, as a safeguard
would be violated if the assignment were to be effectuated.
9.
If a locomotive pushes a wagon, the vision of the miner
operating the locomotive can be obstructed, causing hazards such
as difficulty seeing trailing wires or persons on the tracks.

1441

10. On October 3, 1989, at approximately 8:00 a.m., MSHA
Inspector Koscho was present at Respondent's mine to perform a
spot inspection. He generally handled safety hazards at Respondent's mine by gathering oral information, investigating, and
writing citations or orders if appropriate, without basing his
actions on written 103(g) complaints.
11. At approximately 8:00 a.m., on October 3, Cunningham
approached Koscho and asked him whether he had written a safeguard concerning pushing a wagon with a locomotive. Koscho
indicated that he thought he had. Cunningham then told Koscho
that he thought an incident occurred during the midnight shift.
Cunningham asked Koscho if he wanted him to file a 103(g) complaint, but the latter indicated he'd rather have Cunningham find
out if the incident occurred. Cunningham said that Robert
Camilli was assigned to push a wagon with a locomotive. However,
when Camilli was asked by Cunningham in the presence of Koscho,
the former indicated he did not perform the task. Cunningham
also indicated at that time that Russell Goodwin was also
involved in the incident. However, Cunningham told Koscho that
Goodwin does not shower in the mine but takes his coveralls and
goes home. Koscho asked Cunningham to find out if Goodwin pushed
the wagon with a locomotive. He also asked Richard Werth,
Respondent's safety director, to talk to Jones and see if the
incident occurred. Koscho indicated he would probably be back
the next day.
12. Cunningham did not attempt to contact Goodwin at any
time subsequent to 8:00 a.m. October 3, until he spoke to him
shortly after the start of the midnight shift on October 4. At
that time, Goodwin informed Cunningham that he had performed the
task of pushing a wagon with a locomotive.
1

I reject the argument set forth by Respondent in its
brief (pg. 6-8), that it was unlikely that Koscho planned to
return the next day.
In evaluating whether Cunningham's activities are protected, the key issue is not Koscho's subjective
intention, but rather what he told Cunningham.
I accept the
testimony of Cunningham that Koscho told him he probably would
return the next day, as it was essentially corroborated by Swift.
The narrative statement by Cunningham on cross-examination, that
he was sure Koscho was going to be there, does not negate his
previous testimony on direct examination, that Koscho either said
he would or probably would return the next day. Also, Werth, who
also was present, did not rebut or contradict the testimony of
Swift and Cunningham that Koscho said he would return.
In this
regard, Werth's statement that he did not know when Koscho would
return, is inadequate to contradict the specific testimony of
Cunningham as to what Koscho said.

1442

13. on October 4, 1989, shortly after the start of the
12:01 a.m. shift, Cunningham told his immediate supervisor, Mel
Robinson, that he would be leaving at the end of the regular
shift (before the completion of scheduled mandatory overtime) to
speak to an MSHA inspector about a safety violation. Cunningham
also asked Robinson to get in touch with Dan Jones, the shift
foreman, so that he could talk to Jones.
14. Shortly after 5:30 a.m., during the midnight shift of
October 4, Cunningham reiterated to Jones that pushing one wagon
with a locomotive is against the law. Jo~es indicated that his
foreman Bob Burgh told him it was allowed. According to
Cunningham, Jones said specifically that he did not agree with
the safeguard, and indicated that he was not going to obey it.
In essence, Cunningham told Jones that if the foreman had indicated that the safeguard did not have to be followed, then a
violation could also occur on the day shift. He indicated that
he therefore felt there was an ongoing safety problem, and wanted
to leave his work station to see Swift and Koscho.
According to
Jones, he told Cunningham that the shift foreman, Mark Watkins,
had explained to him, with regard to the safeguard, that it was
permissible to go from switch to switch. Jones denied saying to
Cunningham that he did not feel he had to follow the safeguard.
He was asked whether he ever said he did not agree with the
safeguard and answered as follows:
"I said that I felt that what
I had done that night was not in violation of the safeguard" (Tr.
284-285).
I accept the version testified to by Jones as it is
essentially consistent with what he had told Cunningham the
previous night (See Finding 8, infra).
15.
During the midnight shift, October 4, Jones told
Cunningham that the incident in which a motor pushed a car
occurred the previous night and "· • . that we weren't doing that
type of action that night" (i.g. October 4), Tr. 288. He no
longer had any intention of clearing tracks by pushing cars with
a motor, but did not tell this to Cunningham.

16.
During the conversation between Cunningham and Jones on
October 4, 1989, at approximately 5:30 a.m., the former told
Jones that he wanted to leave his work station at the end of the
regular shift (before scheduled mandatory overtime) to speak to
Swift and Koscho about the aforementioned violation of the
safeguard. Jones indicated to Cunningham that Cunningham was not
allowed to leave work, and a discussion took place in which
Cunningham stated his rights, as a safety representative, to
leave the mine.
Jones threatened Cunningham with discipline and
gave Cunningham a direct work order to stay at his worksite
through mandatory overtime. Cunningham made it clear that
despite the direct work order, he intended to exercise his rights
as a safety representative, and that he would leave work before

1443

the completion of mandatory overtime to talk to the federal
inspector about the· safeguard violation.
17. On October 4, 1989, at approximately 7:40 a.m., Jones
came back to take Cunningham out of the mine and gave him another
direct order to stay at his work station through mandatory
overtime.
Cunningham again explained his rights as a safety
representative, and indicated he wanted to leave to speak to
Swift and a federal safety inspector.
18. Upon exiting the mine on October 4, 1989, Cunningham
went to the safety office and told MSHA Inspector Rantovich, who
was conducting an investigation on another matter, that he wanted
to speak to him about a safety problem.
Later on, Cunningham
informed him about the problem of pushing cars with only one
motor, and related the previous day's conversation with Koscho.
Rantovich stated that in order to investigate a safeguard violation he needed a written 103(g) complaint.
19. Barletta terminated Complainant from his employment for
failure to follow the orders of shift foreman Jones, on the
midnight shift of October 4, 1989, that he remain in the mine
through mandatory overtime. Barletta was aware that the reason
Cunningham wanted to leave his worksite was to talk to an MSHA
inspector or Swift.
20. Swift filed a Section 103(g) complaint over the
October 3, 1989 incident on October 5, 1989, and a citation was
eventually issued on October 12, 1989.
Discussion
A.

Protected Activity

In order to prevail herein, Complainant must establish first
of all, that he was engaged in a protected activity i.g., that he
was exercising "any statutory right" afforded by the Act.
Essentially, it is Respondent's position that Cunningham's
leaving his work station during mandatory overtime, and contrary
to a direct work order, is not a protected activity.
In support
of this position, Respondent argues that on October 4, there was
no hazard present, and that "Swift and MSHA already knew about
the alleged violation and there is no reason why Cunningham had
to come out of the mine early on October 4, since he could not
provide any additional information that could not have been

1444

obtained through other means,
2
Brief, pg. 23). _I

•.•• "

(Respondent's Posthearing

It is true that a violative action had occurred on
October 3, and was brought to the attention of Koscho at that
time. However, it would be unduly restrictive to conclude that,
from Cunningham's point of view, there was no hazard on October 4
as argued by Respondent. Jones had clearly communicated to
Cunningham his interpretation of the safeguard, as told to him by
his foreman and supervisor, that pushing with a locomotive from
switch to switch was not prohibited. Thus, Cunningham could
reasonably have concluded on October 4, as he did, that another
incident could occur on the day shift, of a similar use of a
locomotive, which might be in violation of the safeguard.
Further, as explained by swift, if a locomotive is used to push
wagons, presumably even from switch to switch, the vision of the
miner operating the locomotive is obstructed, creating a hazard
of hitting a trailing wire or a miner walking on the track.
Further, Cunningham was asked by Koscho to find out if Goodwin in
fact pushed a locomotive with a wagon.
Koscho also told him he
probably would return to the mine on October 4.
Furthermore, Respondent has not cited any Commission decisions which directly and specifically hold that, under the
circumstances herein, Complainant was not engaged in the exercise
of a statutory 3~ght, when he left his worksite to seek out Swift
and/or Koscho. _/
2 1 Respondent also asserts, at page 23 of its brief, supra,

that Cunningham was most likely acting in bad faith i.g., seeking
to avoid mandatory overtime or challenging Respondent's authority
"rather than vindicating a legitimate safety interest which could
not be adequately addressed at the end of his shift or by Swift,
• • . • " However, Respondent does not advance any facts to
support this latter assertion, and it is rejected as being unduly
speculative.
3 /I find the following cases cited by Respondent not to be
relevant to the case at bar.
In Howard v. Martin Marietta corp.,
3 FMSHRC 1599 (1981), Judge Broderick held that a miner who left
his wQrk site to call MSHA to complain about a front-end loader
being unsafe, was protected by Section 105(c) of the Act.
In
Howard, supra, at 1603. Judge Broderick concluded that a miner
has an absolute right to leave the premises to call for an
inspection when he believes that there exists a situation "· . .
requiring an immediate safety and health inspection." This
conclusion fits the facts presented in Howard, supra, but clearly
does not attempt to limit the right to leave the premises to only
those situations requiring an immediate inspection.
Such an
interpretation goes beyond the law of the case in Howard, supra.

1445

In resolving the issues herein presented, I am guided in my
decision by the Legislative History of the Act which embodies
Congress' intent in enacting the Act.
The Senate Report, on the
Senate version of the bill that became the Act, (S. Rep.
No. 95-181, 95th Cong. 2d Sess. 1977, reprinted in the
Legislative History o·f the Federal Mine Safety and Health Act of
1977 at 623 ("Legislative History")), contains the following
language relating to the protection of miners against
discrimination:
If our national mine safety and health program is
to be truly effective, miners will have to play an
active part in the enforcement of the Act.
The
Committee is cognizant that if miners are to be
encouraged to be active in matters of safety and
health, they must be protected against any possible
discrimination which they might suffer as a result of
their participation. * * *
fn. 3 (continued)
In UMWA on behalf of Wise v. Consolidation Coal Co.,
(6 FMSHRC 1447 (1984)), a safety committeeman ignored a safety
board, placed by the operator, in order to observe work being
performed to correct a hazardous condition. The Commission held
that the miner did not have a right, protected by the Mine Act,
to go beyond a dangered-off area contrary to the operators
orders.
The Commission reasoned that an operator may restrict
access to hazardous areas to effectuate correction of a hazard.
The Commission commented in Wise, supra, at 1432, that if a
safety committeeman believes that abatement work presents a
hazard, then the normal statutory procedures are available.
These comments do not per se require a conclusion that the
Complainant herein did not have a right to seek an inspector,
Koscho, or swift, the safety committee chairman.
In Ross v. Monterey Coal Co, 3 FMSHRC 1117 (1981), a miner,
acting as a union safety committeeman, inspected areas other than
the work area of his employer. The Commission found that the
disciplinary letter given him by his employer was nondiscriminatory, and was issued to protect a legitimate interest in controlling the work force.
The mere recognition of a legitimate
managerial interest in the circumstances presented in Ross,
supra, does not compel a finding of a legitimate managerial
interest herein, which would have the effect of destroying
Complainant's right to seek out an inspector.
I do not accord any weight to a decision denying Cunningham
unemployment compensation, as that decision did not adjudicate
any rights of Complainant under Section 105(c), supra, of the
Act, which is the exclusive jurisdiction of the Commission to
adjudicate.

1446

Further-instructive with regard to the construction to be
accorded the scope of activities protected under Section 105(c),
supra, is the following language from the senate Report, supra,
(Legislative History at 623).
The Committee intends that the scope of the protected
activities be broadly interpreted by the Secretary, and
intends it to include not only the filing of complaints
seeking inspection under Section 104(f) or the participation in mine inspections under Section 104(e), but
also the refusal to work in conditions which are
believed to be unsafe or unhealthful and the refusal to
comply with orders which are violative of the Act or
any standard promulgated thereunder, or the participation by a miner or his representative in any administrative and judicial proceeding under the Act.
The Senate Report, supra, (Legislative Histo¥7 at 624)
explicitly indicates that Section 105{c), supra,: was intended
by the Committee:
[T]o be construed expansively to assure that miners
will not be inhibited in any way in exercising any
rights afforded by the legislation. This section is
intended to give miners, their representatives, and
applicants, the right to refuse to work in conditions
they believe to be unsafe or unhealthful and to refuse
to comply if their employers order them to violate a
safety and health standard promulgated under the law.
The Sixth Circuit Court of Appeals in Boich v. Federal Mine
Safety and Health Review Commission, 704 F.2d 275,. 283 (6th Cir.
1983), recognized the principle of broad construction to be
accorded the Act in general, and referred to the Legislative
History as follows:
The Act is remedial in nature and should be broadly
construed.
Phillips v. Interior Board of Mine
Operations Appeals, 500 F.2d 772 (D.C. Cir. 1974); see
Marshall v. Whirlpool Corp., 593 F.2d 715, 721-22
{6th Cir. 1979), aff'd, 445 u.s. 1,100 s.ct. 883,
63 L.Ed.2d 154 (1980). The Senate Report specifically
provides that the section should be "broadly interpreted by the Secretary . . . . "

'.!_! The Senate Report, supra, on the Senate version of the
Act, (S. 717), refers to Section 106(c), which, essentially,
contains the same language as section 105(c) of the Act.

1447

I can not disregard the ~xpression of legislative intent as
referred to above.
Based on these statements, I conclude that it
would be violative of legislative intent to deny that, in the
circumstances presented herein, Cunningham had a right on
October 4 to seek out the inspector and/or the safety committee
chairman. To do so would tend to discourage active participation
in safety matters, and inhibit the exercise of the right to
complain about safety matters, which would contravene the
explicit, expressed, Congressional intent stated in the Senate
Report, supra. For these reasons, I find that Complainant was
engaged in protected activity on October 4, 1989, when he left
his work station to seek out Swift and/or Koscho.
B.

Motivation

Adverse action was taken against Cunningham by Barletta when
he terminated the farmer's employment. Respondent maintains
that, assuming Cunningham engaged in protected activity, he would
have been discharged in any event, because he disobeyed a direct
work order without cause.
Inasmuch as I have found that the
record here establishes that Cunningham had a protected statutory
right to leave his work station, Respondent therefore had a duty
to let him go, and thus did not have a right to order him to
remain at his work station and continue working. Thus, in actuality, the action taken against Cunningham resulted solely from
his exercising a statutory right which of necessity required him
to violate a work order. Hence, he was terminated based on the
exercise of a statutory right. As such, his rights under Section
105(c), supra, were violated.
I thus conclude that Cunningham was discriminated against in
violation of Section 105(c), supra.
ORDER
It is hereby ORDERED that:
1. Respondent shall, within 15 days of the date of this
Decision, post a copy of this Decision at its Dilworth Mine where
notices to miners are normally placed, and shall keep it posted
there for a period of 60 days.
2.
Complainants shall file a statement, within 20 days of
this Decision, indicating the specific relief requested. The
statement shall be served on Respondent, who shall have 20 days
from the date service is attempted, to reply thereto.

1448

3. This Decision is not final until a further Order is
issued with respect to Complainants' relief and the amount of
Complainants' entitlement to back pay if any.

~~~

Avram Weisberger
Administrative Law Judge
Distribution:
Paul H. Girdany, Esq., Healey Whitehill, Law & Finance Building,
5th Floor, Pittsburgh, PA 15219 (Certified Mail)
David J. Laurent, Esq., Polito & Smock, P.C., Four Gateway
Center, Suite 400, Pittsburgh, PA 15222 (Certified Mail)
Walter J. Scheller, III, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241
(Certified Mail)
/fb

1449

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

JUL 13 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-36
A.C. No. 46-05991-03547
Docket No. WEVA 90-52
A.C. No. 46-05991-03548

BENTLEY COAL COMPANY,
Respondent

Docket No. WEVA 90-159
A.C. No. 46-05991-03550
Audra No. 1 Mine
DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

These cases are before me upon a petition for assessment
of civil penalties under section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq.
Petitioner has filed a motion to approve a settlement
agreement and to dismiss these cases.
I have considered the
representations and documentation submitted and I conclude
that the proffered settlement is consistent with the criteria
in § llO(i) of the Act.
ORDER
WHEREFORE IT IS ORDERED that the motion for approval of
settlement is GRANTED and Respondent shall pay the approved
penalties of $2,500 within 30 days of this Decision. Upon
such payment these proceedings are DISMISSED.

fAf4.~
~llMv-tAwi11iam Fauver
Administrative Law Judge
Distribution:
Page H. Jackson, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 (Certified Mail)
Ernest R. Mikles, Vice President of Operations, Bentley Coal
Company, Star Route, Box 44-C, Coalton, WV 26257
iz
1450

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

JUL 171990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
JIM WALTER RESOURCES, INC.,
Respondent

.
.
..
.

CIVIL PENALTY PROCEEDING
Docket No. SE 89-42
A.C. No. 01-00758-03732
No. 3 Mine

SUPPLEMENTAL
DECISION APPROVING SETTLEMENT
Appearances:

Before:

William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama
for the Secretary of Labor.
H. Thomas Wells, Jr., Esq., Maynard, Cooper,
Frierson, and Gale, P.C., Birmingham, Alabama
for Jim Walter Resources, Inc.

Judge Melick

This supplemental decision is issued pursuant to
Commission Rule 65(c). The decision issued in these
proceedings on June 27, 1990, failed to incorporate the
settlement of the noted citations. At hearings on
July 12, 1989, petitioner filed a motion to approve a
settlement agreement as to Citations No. 9984616, 9984623,
and 9984624. A reduction in penalty from $583 to $150 was
proposed.
I have considered the representations and
documentation submitted, and conclude that the proffered
settlement is appropriate under the criteria set forth in
Section 110 ( i) of the Federal Mine Safety and !eal th Act of
.:19 77.
WHEREFORE, the motion for ~proval of sett~ment is
GRANTED, and it is ORDERED that! espondent pay
penalty of
$150 within 30 days of this orde f
the noted ita~ion~.

I~ 1~~ \ -t~J\f'\_

Gdry Mel ck
\
Administ tive Law\Judge

\

\

1451

\

\\
\

\

\,

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

JUL 2 O1990
BEAVER CREEK COAL COMPANY
Contestant

v.

CONTEST PROCEEDINGS
:

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

Docket No. WEST 89-23-R
Citation No. 3224857; 10/18/88
Docket No. WEST 89-24-R
Order No. 3224859; 10/18/88
Trail Mountain No. 9 Mine
Mine ID 42-01211

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 89-182
A.C. No. 42-01211-03557
Docket No. WEST 89-185
A.C. No. 42-01211-03556

v.
BEAVER CREEK COAL COMPANY,
Respondent

:

Trail Mountain No. 9 Mine

DECISION
Appearances:

Robert J. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Respondent;
David M. Arnolds, Esq., ARCO, Denver, Colorado
for Contestant.

Before:

Judge Cetti

These consolidated cases are before me under section 105(d}
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq., the "Act" to challenge two citations and one
imminent danger withdrawal order issued by the Secretary of
Labor's Mine Safety and Health Administration ("MSHA"} against
the Beaver Creek Coal Company (Beaver Creek) and for review of
civil penalties proposed by the Secretary for the related
violations.
Pursuant to notice, these cases were heard in Salt Lake
City, Utah. Both parties have filed post-hearing briefs which
I have considered along with the entire record in making this
decision.

1452

STIPULATIONS
The parties have agreed to the following stipulations, which
I accept:
1. That Beaver Creek is engaged in mining and selling of
coal in the United States and its mining operations affect interstate commerce.
2. That Beaver Creek is the owner and operator of Trail
Mountain Number 9 Mine.
3. That Beaver Creek is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977, 30 U.S. Code 801.
4.
matter.

That the presiding Judge has jurisdiction in this

5. That the proposed penalties will not affect Beaver
Creek's ability to continue in business.
6. That Beaver Creek demonstrated good faith in abating
the alleged violations.
7. That Beaver Creek is a medium-size operator with
approximately 244,097 tons of production in 1988.
8. The certified copy of the Mine Safety and Health Administration's Assessed Violation History (Ex. J) accurately
reflects the history of Beaver Creek's Trail Mountain No. 9 Mine
for the past two years, prior to the date of the citations.
ISSUES

1. Whether there was a violation of 30 C.F.R. § 75.1704
as charged in Citation No. 3224857.
2. Whether there was a violation of 30 C.F.R. § 75.202(a)
as charged in Citation No. 3224858.
3. Whether the violations were "significant and substantial."
4. Whether the violation of 30 C.F.R. § 75.1704 (Citation
No. 3224857) resulted from "unwarrantable failure" on the part
of Beaver Creek.

1453

5. Whether the issuing inspector abused his discretion or
authority in issuing the 107(a) closure Order No. 3224859.
6. The appropriate civil penalties, if any, to be assessed
taking into consideration the statutory civil penalty criteria
in Section llOCi) of the Act.
I

Beaver Creek owns and operates Trail Mountain No. 9 Mine
(the "Mine"), an underground coal mine located near Price, Utah.
These contest and civil penalty proceedings arise out of
MSHA's issuance to Beaver Creek of Section 107Ca) imminent
danger closure Order No. 3224859 and its underlying Citation
No. 3224858, and a 104(d)(l) unwarrantable failure Citation
No. 3224857. Beaver Creek timely contested the imminent danger
closure order and the two citations. The proposal for penalties,
WEST 89-185 (Citation No. 3224857) and WEST 89-182 (Citation
No. 3224858) were served on Beaver Creek a few days before the
hearing and were timely answered.
The two citations and the 107(a) closure order are so
closely related factually, that all proceedings were consolidated and testimony from each witness on both citations and
the order were taken at one time. There are, however, separate
issues between Order No. 3224859, with its related Citation
No. 3224858, and Citation No. 3224857.
Inspector Robert Huggins, accompanied by his supervisor,
William Ponceroff, conducted the inspection of the mine. Supervisor Ponceroff was present, partly for the purpose of observing
Mr. Huggins and evaluating his ability and training.
It was,
nevertheless, Mr. Huggins' inspection. Mr. Jeffrey Cooper, who
at that time was the Safety and Health Supervisor for Beaver
Creek, and Mr. Duane Gilbert, Shift Supervisor for Beaver Creek,
joined the inspection team.
Mr. Cooper is a highly trained and experienced health and
safety professional.
(See transcript C. 203-206 for specifics
on his training and experience). Mr. Gilbert is an experienced
supervisor, holding fire boss and mine foreman certificates since
1978.
Inspector Huggins and his Supervisor Ponceroff are also
highly trained, experienced mine safety professionals.
The inspection party went underground to make the inspection
at approximately 7 a.m. during a non-production shift. While

1454

walking inby the No. 2 belt line, they heard the noise of rushing
air.
The usual belt line noise was absent since the belt was not
running at the time the air noise was heard and investigated.
The noise as descri~ed by Supervisor Ponceroff was "like driving
in the car and you open a wing window • • • it was really noticeable." The noise was characterized by Inspector Huggins, as a
wind speed of 45-60 miles per hour pouring through a car window.
The noise was heard before its source was discovered. The wind
noise source was located.
It was identified as a hole in the
coal rib on the off walkway side of the belt entry between crosscuts Nos. 5 and 6. The hole was approximately eight inches high,
six inches wide, and seven inches thick.
Coal dust which was emitted from this rib opening resulted
in the formation of a conical accumulation at the base of the
rib, indicating to all concerned that the rib hole must have
been there for quite some time.
The inspector and Mr. Cooper looked through the hole in
the rib using their cap lamps but they could see very little in
either direction. They did, however, see some deterioration of
the roof with fallen debris about five feet high and at the far
side saw some roof at an angle.
Although they did not realize it at the time, the inspection
team, in looking through the hole in the rib, were looking into
an old abandoned work out area that was located between the belt
entry and the return entry.
Mr. Huggins and Mr. Cooper went through the man door at -the
No. 5 crosscut stopping between the belt entry and the return
entry to try to see the hole from the return side. They could
not find it even when Supervisor Ponceroff and Mr. Gilbert shone
a light through the hole and put smoke through the hole in their
attempts to locate the hole.
The reason they could not find
the hole from the return side was that the hole through the rib
entered into the abandoned worked-out area that was located
between the belt entry and the return, and this old worked-out
abandoned area was closed off from the return by two stoppings
on the return side.
The men left the mine and went to the mine off ice where
Inspector Huggins and Mr. Cooper looked at the mine map and
found the narrow area in the rib and determined that the hole
was probably in that spot. At that point in time they still
did not realize why they were unable to see the light or smoke
which they put through the hole in the rib.

1455

After some discussions with Supervisor Ponceroff,
Mr. Huggins stated that he thought the hole constituted an
unwarrantable failure and the roof conditions constituted an
imminent danger. Mr. Cooper disagreed.
After several phone calls between the inspectors and the
Denver MSHA off ice, the inspectors proposed that Beaver Creek
build a 50-foot longwall of solid concrete block. Beaver Creek
objected because it believed the cost would have been prohibitive and Mr. Cooper did not believe there was any hazard. Finally, Mr. Gilbert suggested building a crib wall, which he believed
was unnecessary but which he suggested in order to get the closure order lifted.
The inspector approved.
Mr. Cooper then asked what areas of the mine were affected
and the inspector told him the belt line and the return. Therefore, Mr. Cooper withdrew all of the men from the mine inby
crosscuts 5 and 6. The crib wall was promptly constructed at a
cost of about $3,600 in material and $35,000 in lost production.
The closure order was lifted within one and one-half days of the
inspection.
Because he believed there was no major roof problem,
Mr. Cooper took a camera when he returned underground and took
photographs of the area. Within the next two days, he took
additional photographs, took measurements and observations,
and documented his findings on a certified mine map, which was
received into evidence as Beaver Creek's Exhibit 2.
The conditions that existed under which Mr. Huggins issued
the closure order and the unwarrantable failure citation were
as follows:
1. A six-inch by eight-inch hole was in the rib that
separated the belt entry from old workings.
Inspector Huggins
could only guess at the length and thickness of that rib.
Mr. Ponceroff did not check the thickness and therefore he
did not know what it was.
2. Air slack or potting had occurred in the roof along the
rib, the extent of which Supervisor Ponceroff did not measure.
Inspector Huggins did not measure it either but estimated that
it varied from 9 inches to 14 inches deep for the length of the
rib.
Mr. Cooper later measured it to be in two areas, 16 feet
long and 4 feet long respectively, for a depth of generally
4 inches to a maximum of 7 inches.
3. Timbers in the belt entry next to the rib, which had
been present at least ten years, showed no sign of taking weight.

1456

4. Bolts in the belt entry were on four- to five-foot
centers showed no weight stress.
5. There was no evidence of cutting or shearing of the rib
into the roof.
6. There was fallen roof material in the worked-out area
behind the rib; i.e., in this abandoned area between the rib and
the return entry. The roof in that worked out area had been
unsupported and the area had been mined out a long time ago,
variously estimated at 10-15 or more years.
7. The six-inch by eight-inch hole that separated the belt
entry from the old worked out area had existed a long time.
8. The air going through the hole in the rib entered the
old workings, which were stoppinged off from the return entry.
9. All air in the mine was deliberately vented to the
return entry. Belt air is vented to the return by the use of
regulators which an operator can locate anywhere he desires.
Beaver Creek had a regulator close to the portal, about six
crosscuts outby the hole.
10. The return entry was the mine's alternate or secondary
escapeway.
II
Docket Nos. WEST 89-23-R and WEST 89-185
Citation 3224857
Inspector Huggins issued Citation No. 3224857 under Section
104Cd)(l) of the Act for a violation of 30 C.F.R. 75.1704. Section 8, "Condition or Practice" of the citation reads as follows:
The designated return escapeway was not being
maintained to ensure safe passage of persons including
disabled persons. A hole has eroded from the belt entry .i,nto the return entry through the coal rib between
#5 and #6 crosscuts on #2 beltline. The hole was
measured to be 8 inches by 6 inches and the air was
making a rushing noise and going into the return. The
#6 and #7 stoppings used to separate the belt air from
the return air designated escapeway are leaking and the
air rushing into the return could be readily heard.
These conditions have been there for awhile and it
should have been observed by the preshi·ft examiner.

1457

The citation states that the risk of injury was highly likely,
that the gravity was S&S and that Beaver Creek's negligence was
high.
The cited regulation 30 C.F.R. § 75.1704 provides in
relevant part as follows:
Except as provided in Section 75.1705 and 75.1706,
at least two separate and distinct travelable passageways which are maintained to ensure passage at all
times of any person, including disabled persons, and
which are to be designated as escapeways, at least
one of which is ventilated with intake air, shall be
provided from each working section continuous to the
surface escape drift opening, • • • and shall be maintained in safe condition and properly marked.
Discussion and Conclusion
The main facts surrounding Citation No. 3224857, set out
above, are well established and virtually undisputed. A hole
six inches by eight inches was present in the coal rib between
crosscuts 5 and 6 on the offside of the belt entry. The hole
went into a worked out area between the belt entry and the return
entry. The return entry was the alternate escapeway. The old
workings were stoppinged off on the return side of the workings.
Thus, the return escapeway was separate and distinct and was
maintained in a safe condition. The return entry was separate
from the belt entry by stoppings on the return side of the worked
out area.
There was no persuasive evidence of any significant
air leakage at any of the mines stoppings. Cf. Rochester &
Pittsburgh Coal Company, 10 FMSHRC 1576, 1577-1578. The rib,
except for the six-inch by eight-inch hole, constituted a redundant separation. The preponderance of the evidence presented
did not establish a violation of 30 C.F.R. § 75.1704. Citation
No. 3224857 is vacated. Contest proceeding No. WEST 89-23-R is
granted. Civil Penalty proceeding WEST 89-184 is dismissed.
III

Docket Nos. WEST 89-24-R and WEST 89-182
Citation No. 3224858
Citation No. 3224858 alleges a section 104Ca}, S&S violation
of 30 C.F.R. § 75.202(a). The citation reads as follows:
The mine roof was not being supported adequately
by a distance of 60 feet between the #5 and #6 crosscuts and the #2 belt entry. The roof has potted out

1458

next to the rib and the rib is about 2 feet thick for
a distance of about 50 feet next to old entry.
30 C.F.R. Section 75.202Ca) reads as follows:
The roof, face and ribs of
persons work or travel shall be
otherwise controlled to protect
hazards related to falls of the
ribs and coal or rock bursts.

areas where
supported or
persons from
roof, face or

IV
Imminent Danger Closure Order No. 3224859
The 107Ca) imminent danger closure order issued to Beaver
Creek reads as follows:
The following condition constitutes an
imminent danger which was observed between the
#5 and #6 crosscuts in the #2 belt entry of
the left rib going in the mine.
The coal rib
between the belt entry and the return entry is
about 2-foot thick with a hole in the coal rib
into the return. There is a lot of pressure
on the rib because the main fan is about 1,000
feet from this area.
The old entry behind
this rib (return side). The roof has fallen
and the two-foot rib is about 50 feet in length.
The mine roof in the belt entry has potted out
next to this two-foot coal rib.
See Citation
3224858.
The Secretary, based upon the testimony of Inspector
Huggins and Supervisor Ponceroff, contends that the area behind
the six-inch by eight-inch hole in the rib, the old worked-out
area adjacent to the belt entry, was in the process of rapid
deterioration. The fallen roof debris in this worked-out area
was approximately five (5) feet in height.
Supervisor Ponceroff
testified that the thickness of the rib between the belt entry
and the old workings had "whittled down to two foot." He further
testified that he "imagined" that Inspector Huggins assumed
the 2 foot thickness of rib extended for a distance of 50 feet
(Tr. 93). He also testified he observed sloughage on both
sides of the rib line, "potting out" of the roof and fracture
lines running from the "old workings to the belt line roof."
Mr. Ponceroff stated that the "entire area from the return
entry to the belt line entry was showing "signs of change."

1459

When asked what signs of change the area was showing, he replied:
A.

The signs of change at the location of the post
where the hole was -- occurred, had eroded through
the rib.
Sloughage was occurring. Lamination was
occurring. The area was potting out. If you -the area in the cracks had been -- were recent
cracks: there was no rock dust in those cracks.

Huggins testified he did not measure the length of the
thinned-out rib or its thickness but he "guessed" it was about
50 feet in length and averaged 2 feet in thickness.
Beaver Creek's Position
Beaver Creek submits that closure Order No. 3224859 and its
underlying Citation No. 3224858 were without any basis in law or
in fact and that Inspector Huggins' issuance of them was improper
and abusive.
Beaver Creek outlines its position as follows:
1. Inspector Huggins did not believe that an imminent
danger existed.
2.

No danger with respect to the rib or roof existed.

3.

If a danger existed, it was not imminent.

4. The order is defective on its face because it fails to
state the area of the mine throughout which the alleged danger
existed.
Section 107(a) requires that the authorized representative
of the Secretary issue the order if he finds that an imminent
danger exists. Beaver Creek contendS-that if the issuing inspector did not believe that an imminent danger existed, the
order must fall.
Beaver Creek presented some evidence in support of its
assertion that the issuing inspector, Huggins, did not believe
an imminent danger of a roof fall existed. Mr. Cooper testified
that on November 10, 1988, in Salt Lake City, Inspector Huggins,
after his deposition, said to Mr. Cooper, "For your information,
and completely off the record, I want you to know that the
imminent danger was not mine: the unwarrantable was." Mr. Cooper
testified that he documented this statement in his journal on
that day.

1460

Inspector Huggins adopted practically all of Supervisor
Ponceroff 's testimony at the hearing.
Beaver Creek also points out that Inspector Huggins by his
own admission did not remember looking at the condition of the
timbers or bolts .to see if they were taking weight.
He testified
he did not look over his head.
While the evidence presented by Beaver Creek on this issue
has some plausibility, I credit the testimony of Inspector
Huggins and Supervisor Ponceroff that Mr. Huggins did in fact
determine that an imminent danger existed.
Roof Fall Danger
With respect to the issuance of the imminent danger order,
Mr. Huggins testified on direct examination as follows:
Q.

Okay.
And, could you tell us the circumstances
that led to the issuance of that particular citation (sic)?

A.

All the things that was involved in this area
right here, like I said, not knowing what is
overhead, and in the inte~est of safety, and so
forth, that's why it was issued.

On cross-examination Inspector Huggins' reasons for issuing
the imminent danger closure order were summarized as follows:
Q.

I understand your testimony, then, that you
issued the emminent danger (sic) danger order
out of fear of a roof fall, because the roof
had fallen and (sic) the old workings that was
unsupported, and because there was potting
along the rib that you estimated or guessed
at being 2 feet thick, like couldn't really
determine.

A.

And, also, that I could not see straight up.
I did not know what was above.

Q.

Sure, you didn't know what was above --

A.

Right.

Q.

-- because you can't see through the roof?

That's true.

1461

A.

And in the interest of safety, you know --

Q.

Uh-huh.

A.

-- and it was to save somebody's life, the way
I look at it.
CTr. 179 - 180)

Beaver Creek in support of its position points to the uncontroverted fact that the roof bolts and timbers in the belt
entry, which had been in place for at least 10 years, showed
no stress or signs of taking weight~ that Inspector Huggins
seemingly ignored the mine map and only guessed at the length
and thickness of the rib in question.
Inspector Huggins testified that he did not consider whether
the timbers or the bolts showed signs of stress because he was
concerned about the "potting," which he asserted was a real indication of a roof fall.
Inspector Huggins estimated the potting
to be 9 inches to 14 inches deep and ran most of the length of
the rib, but he took no measurements.
There was conflicting
opinion as to whether this condition was due to air slack or
potting.
Supervisor Ponceroff described air slack to be an
eroding of the mine due to moisture, and he described potting
to be the falling away of large pieces in the shape of a kitchen
pot. Supervisor Ponceroff testified that there can be air slack
without a risk of a roof fall and also there can be potting without the risk of a roof fall.
Mr. Cooper testified that what
existed wa& air slack, not potting, and that air slack is a
normal occurrence in mines.
Mr. Cooper measured the air slack to
be generally 4 inches in depth to 7 inches maximum and in two
stretches, 16 feet and 4 feet long, respectively.
The photographs of the area CB.C. Ex. 4.6, 4.8 and 4.9) show the condition
that existed.
It was undisputed that the rib was not cutting or
shearing up into the roof. Mr. Cooper testified that the rib
was not crushing out.
Inspector Huggins' primary concern,
ting, apparently was based on the 6 inch
rib that existed for a long time and his
only 2 feet thick for 50 feet, therefore
the roof.

in addition to the potby 8 inch hole in the
guess that the rib was
insufficient to support

Inspector Huggins also expressed concern about the fallen
roof in the old workings.
However, the old workings were very
old and were unsupported, while the roof in the belt entry was
supported by timbers and closely spaced bolts which appeared to

1462

be in good shape. Mr. Cooper testified the roof in the belt
entry along the rib was in good condition CTr. 250, BC Ex. 4.12,
4.13, and 4.14).
Supervisor Ponceroff asserted that Beaver Creek was using
the rib as a primary support and therefore it should have been
50 to 60 feet thick, and that the rib provided little or no support, creating a 40-foot span which would result in sag that
would finally break. Inspector Ponceroff, like Mr. Huggins, puts
little weight on the facts that the rib h~d been there many years
and that the timbers and bolts show no weight, even though those
bolts and timbers were at least 10 years old.
Beaver Creek contends that, if there was going to be any sag, it would have shown
on the timbers in those 10 years.
Supervisor Ponceroff argued that he could see vertical
cracks in Beaver Creek's pictures received in evidence that could
result in a roof fall. Beaver Creek contends that Supervisor
Ponceroff never explained in any intelligible manner how those
cracks, if they existed, could create a danger when the adjacent
timbers and bolts showed no stress. Beaver Creek also points out
that Supervisor Ponceroff 's testimony about the risk resulting
from the cracks and from the fallen roof in the worked-out area
and the air slack was that the roof could fall, not that a fall
was likely or imminent. This is evident in the following excerpt
from his testimony:
So, the what can happen in a case like this, the
reason why you can have a massive roof fall there,
is the fact that it may be -- the fracture may be
going at an angle, and it'll stay there until something else breaks, and that hole (sic) thing~
come at once.
(Emphasis added).
Mr. Cooper, on the contrary, testified that the cracks were
not vertical or on an angle, but were mere horizontal laminations.
It is undisputed Mr. Cooper did one thing the inspectors failed
to do. After the inspectors left, he tested the area in question
with a scaling bar and found it to be solid. Mr. Cooper testified that "I banged on that thing, and banged on it, and it
was just as solid as ever. You couldn't hear anything there."
Supervisor Ponceroff testified that it is common to do this
"sound and vibration" test but that he did not do it and it is
clear from the record that Inspector Huggins did not do it.
Supervisor Ponceroff also made much of the report of unintentional roof falls in the mine. Beaver Creek, however, presented evidence that all five prior unintentional falls were in
areas where there was either no roof support or only some partial

1463

bolting and all five prior falls were in different areas of the
mine that were quite a ways away from the area in question.
Mr. Robert J. Marshall, a certified mining engineer, was the
last witness to testify.
He is the engineering supervisor for
Beaver Creek. He is a licensed engineer in Utah and Colorado.
After the inspection, Mr. Marshall conducted an extraction ratio
study of the percentage of the coal that had been removed versus
the percentage of coal that remained in place. Mr. Marshall's
analysis showed that the coal in place provided approximately two
times as much support as was required by the roof. The thinned
out stretch of the rib, as perceived by Supervisor Ponceroff and
Inspector Huggins, provided negligible support. However, that
support was unnecessary.
The thinned-out stretch could have been
completely removed without creating a risk of a roof fall.
His testimony was offered as an expert witness with respect
to coal mine roof control issues.
Discussion
Section 107(a) of the Act provides in part as follows:
If upon any inspection or investigation of a
coal or other mine which is subject to this Act,
an authorized representative of the Secretary
finds that an imminent danger exists, such representative shall determine the extent of the area
of such mine throughout which the danger exists,
and issue an order requiring the operator of
such mine to cause all persons except those ref erred 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 the
imminent danger no longer exist.
Section 3(j) of the Mine Act, 30 u.s.c. 802(j), defines an
imminent danger as "the existence of any condition or practice
in a coal or other mine which could reasonably be expected to
cause death or serious physical harm before such condition or
practice can be abated." This definition is unchanged from the
definition contained in the Federal Coal Mine Health and Safety
Act of 1969, 30 U.S.C. § 801 et seq. (1976) (amended 1977) (the
"1969 Coal Act"). The Senate report on the Mine Act explains

1464

that the Secretary's authority to issue imminent danger
orders "should be construed expansively by inspectors and the
Commission." s. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977),
reprinted in Legis. Hist. Mine Act 626.
In discussing the concept of imminent danger, the Commission
has recently stated:
In analyzing [the] definition [of imminent
danger], the U.S. Courts of Appeals have eschewed
a narrow construction and have refused to limit
the concept of imminent danger to hazards that
pose an immediate danger.
See, ~· Freeman
Coal Mining Co. v. Interiorlfcl. of Mine Op. App.,
504 F. 2d 741 (7th Cir. 1974). Also, the Fourth
Circuit has rejected the notion that a danger is
imminent only if there is a reasonable likelihood
that it will result in an injury before it can
be abated. Eastern Associated Coal Corp. v. Interior Bd. of Mine Op. App., 491 F.2d 277, 278
(4th Cir. 1974). The court stated that "an imminent danger exists when the condition or practice
observed could reasonably be expected to cause
death or serious physical harm to a miner if
normal mining operations were permitted to-Proceed in the area before the dangerous condition
is eliminated." 491 F.2d at 278 (emphasis in
original}. The Seventh Circuit adopted this
reasoning in Old Ben Coal Corp. v. Interior Bd.
of Mine Op. App., 523 F.2d 25, 33 (7th Cir. 1975).
Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November
19 89) •
The Seventh Circuit has further recognized the importance of
the inspector's judgment in issuing an imminent danger order:
Clearly, the inspector is in a precarious position. He is entrusted with the safety of miners'
lives, and he must ensure that the statute is enforced for the protection of these lives. His
total concern is the safety of life and limb ••••
We must support the findings and the decisions of
the inspector unless there is evidence that he has
abused his discretion or authority.
(emphasis added)
Old Ben, supra, 523 F.2d at 31; Rochester & Pittsburgh, 11 FMSHRC
at 2164.

1465

The Commission has taken note of the fact that mine roofs
are inherently dangerous and that even good roof can fall without
warning. Consolidation Coal Company, 6 FMSHRC 34, 37 (January
1984). It has also stressed the fact that roof falls remain the
leading cause of death in underground mines, Eastover Mining Co.,
4 FMSHRC 1207, 1211 and n. 8 (July 1982); Halfway Incorporated,
8 FMSHRC 8, 13 (January 1986); Consolidation Coal Company,
supra.
The Commission recently stated in upholding the issuance
of an imminent danger withdrawal order in Rochester & Pittsburgh
Coal Co. v~ Secretary of Labor, supra at 2164; [The operator's]
focus on the relative likelihood of [miners] being injured •••
ignores the admonition .in the Senate Committee Report for the
Mine Act that an imminent danger is not to be defined "in terms
of a percentage of probability that an accident will happen."
S. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977), reprinted in
Senate Subcommittee on Labor of the Committee on Human Resources,
95th Cong., 2nd Session, Legislative History of the Federal Mine
Safety and Health Act of 1977 at 626 Cl978).
Instead, the focus
is on the "potential of the risk to cause serious physical harm
at any time." Id. The Committee stated its intention to give
inspectors "thenecessary authority for the taking of action to
remove miners from risk." Id.
"[Such] argument also fails to recognize the role played
by MSHA inspectors in eliminating imminently dangerous conditions. Since he must act immediately, an inspector must have
considerable discretion in determining whether an imminent
danger exists." Applying this rationale to the case at bar, the
question, in my opinion, is whether Inspector Huggins abused his
discretion or authority when he determined, on the basis of his
observations and the information he had at the time he issued
the order, that an imminent danger existed. Upon review of the
evidence I am unable to find that he abused his discretion or
authority.
I therefore uphold the validity of the imminent
danger order.
The Commission has recently noted that an imminent danger
order need not be based upon a violation of a mandatory standard
in order to be valid. Sees. Rep. No. 461, 95th Cong., 1st Sess.
39 (1977), reprinted in Senate Subcommittee on Labor, Committee
on Human Resources, 95th Cong., 2nd Sess., Legislative History
of the Federal Mine Safety and Health Act of 1977, at 1317 (1978)
("Legis. Hist."); Freeman Coal Mining Co., 1 IBMA 197, 207-08
(1973), aff'd, Freeman Coal Mining Co. v. IBMA, 504 F.2d 741
C7th Cir. 1974>. Accordingly, despite upholding the validity of
the imminent danger order, the question of whether a preponderance of the evidence establishes a violation of 30 C.F.R.
§ 75.202Ca) as alleged in Citation No. 3224858 remains.
1466

After the inspector completed his inspection and left,
Mr. Cooper made further observations, photographs, measurements,
and tests. He used a scaling bar and found the belt entry roof
in question to be solid. Mr. Marshall, a certified mining
engineer, conducted an extraction ratio study. He testified
that the coal in place in the area in question provided approximately two times as much support as was required to support the
roof. This expert testimony was credible and was not rebutted.
I credit the testimony of Messrs. Marshall and Cooper. On the
basis of their testimony and my evaluation of all the evidence
in the record, I find that the preponderance of evidence presented is insufficient to establish a violation of 30 C.F.R.
§ 75.202Ca).
Citation No. 3224858 is therefore vacated.
ORDER
1. Citations Nos. 3224857 and 3224858 are vacated and the
related proposed penalties are set aside.
2. The Section 107Ca) imminent danger Order No. 3224859
is affirmed.

t F. Cetti
istrative Law Judge

Distribution:
David M. Arnolds, Esq., Thomas F. Linn, Esq., Beaver Creek Coal
Company, 555 Seventeenth Street, 20th Floor, Denver, CO 80202
CCertif ied Mail)
Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294
(Certified Mail)
/ek

1467

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

JUL 2 0 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING

.

Docket No. WEST 89-440
A.C. No. 05-03771-03518
Raton Creek Mine No. 1

ENERGY FUELS MINING COMPANY,
Respondent
DECISION
Appearances:

Margaret A. Miller, Esq., Roberts. Murphy, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Petitioner.
Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Respondent.

Before:

Judge Lasher

This proceeding was initiated by the filing of a petition for
assessment of penalties by the Secretary of Labor pursuant to
Section 110 of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 820 (1977) (herein the Act).
This matter was consolidated and scheduled for hearing with two
other penalty dockets, WEST 90-25 and WEST 90-52. At the commencement of the hearing on June 12, 1990, a settlement had been concluded and was announced CT. 2-6) covering all six citations involved.
Such settlement agreement was considered and approved from
the bench and is here affirmed.
Pursuant to their agreement, Respondent is to pay the penalties
originally assessed by Petitioner in full for five of the six citations (as reflected in the Order below), and as to the remaining
Citation No. 2931276, the "Significant and Substantial" designation
thereon is to be deleted and the penalty reduced from $63 to $50.
ORDER
1. Respondent, if it has not previously done so, shall pay the
Secretary within 30 days from the date of this decision the total
sum of $324 as and for civil penalties as reflected below:

1468

Citation Number

Penalty

2930776
2931275
2931277
3077194
3077196
2931276

$ 74
74
42
42
42
50

Total

$324

2. Citation No. 2931276 is MODIFIED to delete the "Significant
and Substantial" designation thereon and is otherwise affirmed.

I

-

.·-

-

,;;.?};;:,
~~-- /./ti:'/,. /./~~/~;,/
_;;-;
/(.'""' '- 'f~P. ._ /.
/ / .
Michael A. Lasher, Jr.
Administrative Law Judge
Distribution:
Margaret A. Miller, Esq., Robert J. Murphy, Esq., Office of the
Solicitor, U.S. Department of Labor, 1585 Federal Office Building,
1961 Stout Street, Denver, CO 80294 (Certified Mail)
Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700
Broadway, Suite 1100, Denver, CO 80203 (Certified Mail)

/ek

1469

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

JUL 2 4 1990
JOSEPH WIETHOLTER,
Complainant

.

DISCRIMINATION PROCEEDING

v.

Docket No. LAKE 90-17-DM

QUALITY READY MIX, INC.,
Respondent

MD 89-69
Quality Pit & Mill
DECISION

Appearances:

Before:

Joseph Wietholter, Celina, Ohio, pro se 1
Robert J. Brown, Esq., Thompson, Hine and
Flory, Dayton, Ohio for Respondent.

Judge Melick

This case is before me upon the Complaint by
Joseph Wietholter under section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., the
"Act," alleging discharge by Quality Ready Mix, Inc., (Ready
Mix) in violation of section 105(c)(l) of the Act.l/ More
particularly the Complainant alleges that he was unlawfully
discharged on July 10, 1989, for the following reasons:
I was fired on July 10, 1989, as the result of an
accident involving a Euclid haul truck that had no
brakes.
I had been informed by another employee at
the mine that the truck had no brakes and that the
trucks [sic] transmission was to be used to control
it. While operating the truck on July 10, 1989,
the engine stalled on a ramp and the truck started
rolling. The trucks [sic] starter was inoperative
and could not be started. From within the trucks
I; Section 105(c)(l) of the Act provides as
follows:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to
this Act because such miner, representative of
miners or applicant for employment, has filed or
made a complaint under or related to this Act,
including a complaint notifying the operator or the
operator's agent, or the representative of the
miners at the coal or other mine of an alleged
1470

[sic] cab I jumped from the truck and the truck
came to rest at the bottom of the steep ditch.
I
subtained [sic] injures [sic] to my neck and I'm
under medical care. A previous incident also
contributed to my firing.
On July 8, 1989 I was
instructed to operate a dragline. After observing
water bleeding from the ground where I had been
instructed to move the dragling [sic] to, I
protested to Robert Hirchfeld [sic], supervisor,
that the ground was unstable.
He replied that it
was stable ground, and ordered [sic] me to operate
the dragline from that site. After moving the
dragline, the ground beneath it failed and the
crain [sic] fail [sic] forward. (Complaint of
Joseph Wietholter filed July 18, 1989 with the
Federal Mine Safety and Health Administration).
Joseph Wietholter testified at hearing that on
July 8, 1989, while he was operating the dragline at the
Ready Mix mine, Superintendent Hirschfield directed him to
pull the dragline into a waterlogged area which Wietholter
considered to be unsafe.
According to Wietholter,
Hirschfield directed him to either get into the dragline and
follow instructions or leave. As he proceeded to move the
dragline into the area it leaned forward and sunk
approximately 3-feet on one side. Wietholter later met
Hirschfield on the job site and Hirschfield "started yelling,
screaming and threw his hat up in the air".
Wietholter
acknowledges that he was not disciplined for the incident
and, indeed, following the meeting did not feel that
Hirschfield blamed him for the dragline sinking.
On July 10, 1989, Wietholter was operating the Euclid truck
hauling gravel. According to Wietholter the union shop steward,
Mark Marshall, showed him how to drive it and warned him that if
it stalled to jump out. Wietholter observed that the truck had
no seat belts, no windshield and no brakes.
He did not
I/cont'd fn.l
danger or safety or health violation in a coal or
other mine or because such miner, representative of
miners or applicant for employment is the subject
of medical evaluations and potential transfer under
a standard published pursuant to section 101 or
because such representative of miners or applicant
for employment has instituted or caused to be
instituted any proceedings under or related to this
Act or has testified or is about to testify in any
such proceeding, or because of the exercise by such
miner, representative of miners or applicant for
employment on behalf of himself or others of any
statutory right afforded by this Act.

1471

complain however about these alleged safety defects nor did
he refuse to drive the truck. Later that day the truck
stalled on a hill and he could not restart it. Apparently
Wietholter could not stop it without power and, as the truck
began to roll he jumped off. The truck went out of control
and into a ditch. When Hirschfield arrived at the scene he
refused to hear Wietholter's explanation and told him he was
fired.
It was then, upon the shop steward's advice, that
Wietholter called the Federal Mine Safety and Health
Administration and reported what he considered to be a number
of safety violations at the mine site and filed his complaint
under section 105(c} of the Act.
Robert Hirschfield, owner and President of Ready Mix,
testified that he hired Wietholter on June 6th or 7th and
that Wietholter worked only about a month before he fired him.
He purportedly fired Wietholter because of Wietholter's
inability to operate the dragline. Hirschfield testified
that Wietholter destroyed 3-lift and 2-pull cables on the
dragline 1 damaged a fuel tank, and proved that he was not
capable of operating the machine. According to Hirschfield
he gave general instructions to Wietholter on July 8, 1989,
to remove overburden in an area 150 feet to 200 feet long and
about 50 feet wide.
At about 12:00 or 1:00 that afternoon he
observed that Wietholter had removed an area 70 feet long by
50 feet wide and had moved the machine into an area where the
machine was not level. Hirschfield maintains that he then
directed Wietholter to stop working that area even though
Wietholter was willing to continue operating the dragline in
that position. Hirschfield denied that Wietholter had
previously complained about the ground conditions.
Hirschfield was not aware of any safety complaints by
Wietholter either to MSHA or to himself but acknowledged that
Wietholter did make routine requests for repairs on the
dragline.
According to Hirschfield, about mid-day on July 10 he
asked Wietholter to haul sand in a truck.
Wietholter
performed this for about 3 1/2 hours before the accident.
Hirschfield did not see the accident but in light of all of
the problems he felt Wietholter was "not the man for the job"
and fired him.
In order to establish a prima f acie violation of section
105(c}(l} of the Act Mr. Wietholter must prove by a
preponderance of the evidence that he engaged in an activity
protected by that section and that his discharge was
motivated in any part by that protected activity. Secretary

1472

on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786
(1980) rev.a on other grounds sub nom Consolidation Coal Co.,
v. Marshall 663 F.2d 1211 (3rd Cir. 1981); Secretary on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803
(1981).
In this regard, in reference to the July 10, 1989,
accident on the Euclid haul truck which Wietholter maintains
was the precipitating incident leading to his discharge,
there is no evidence of any protected activity.
Before the
accident Weitholter admittedly never complained of any safety
defect on the truck nor did he refuse to work on it.
With respect to the dragline sinking incident on
July 8, 1989, Wietholter maintains that he forewarned
superintendent Hirschfield about operating the dragline in
the waterlogged area before it sank. While this warning
might be construed as a safety complaint Wietholter not only
did not refuse to operate tne dragline in the waterlogged
area but indeed went ahead and moved the dragline into that
area.
It is not reasonable to infer therefore that any
anti-safety animus would have resulted from this activity.
Under the circumstances, Wietholter has failed to sustain his
burden of proving that Hirschfield retaliated against him for
his alleged prior warnings about operating the dragline in
the waterlogged area.
Under the circumstances the Complainant herein has
failed to sustain his burden of proving that he was
discharged in violation of Section 105(c)(l) of the Act and
accordingly his Complaint herein must be dismissed.
ORDER
Discrimination case Docket No. LAKE 90-17
DISMISSED.

hereby

Distribution:
Mr. Joe Wietholter, 710 Dvonshire il7, Celina, OH
(Certified Mail)

45822

Robert J. Brown, Esq., Thompson, Hine and Flory, 2000
Courthouse Plaza, N.E., P.O. Box 8801, Dayton, OH 45401-8801
(Certified Mail)
nb

1473

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

JUL 2 71990
SOUTHERN OHIO COAL COMPANY,
Contestant

.
.

CONTEST PROCEEDING
Docket No. LAKE 90-37-R
Order No. 3324186; 2/1/90

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

.

Meigs No. 31 Mine
Mine I.D. # 33-01172

DECISION
Appearances:

Before:

David M. Cohen, Esq., Lancaster, Ohio, for
Contestant;
Patrick M. Zohn, Esq., Office of the Solicitor,
U.S. Department of Labor, Cleveland, Ohio for
Respondent.

Judge Melick

This case is before me under section 107(e)(l) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq., the "Act," to challenge an imminent danger
withdrawal order issued by the Secretary of Labor against the
Southern Ohio Coal Company (Southern Ohio) on February 1, 1990,
pursuant to section 107(a) of the Act. The order reads as follows:
A serious accident has occurred in which a miner
was injured due to the practice of moving equipment
using a wire rope without a guard or barrier or
without persons being in a safety zone of 1 1/2
times the length of exposed wire rope. Safety
contacts will be made of all personnel who
work underground to assure the policy of moving
equipment with the use of wire rope is adhered to.
Section 107(a) of the Act provides in part as follows:
If, upon any inspection or investigation of a coal
or other mine which is subject to this Act, an
authorized representative of the Secretary finds
that an inuninent 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

1474

from e·ntering, such area until an authorized
representative of the Secretary determines that
such imminent danger and the conditions or
practices which caused the imminent danger no
longer exist.
Section 3(j) of the Act defines "imminent danger" as the
existence of any condition or practice in a coal or other
mine which could reasonably be expected to cause death or
serious physical harm before such condition or practice can
be abated.
In this case it is charged ~hat a "practice"
rather than a "condition" existed i.e. "the practice of
moving equipment using a wire rope without a guard or barrier
or without persons being in a safety zone of 1 1/2 times the
length of exposed wire rope. "
In Rochester and Pittsburgh Coal Co. v. Secretary of
Labor, 11 FMSHRC 2159 (1989), the Corrunission considered two
methods for determining the validity of an imminent danger
withdrawal order issued under section 107(a) of the Act.
First the Commission agreed that substantial evidence existed
to support the judge's findings that an "imminent danger"
existed at the time the order was issued. The Commission
also concluded in that decision that apparently even if an
imminent danger had not existed, the findings and the
decisions of the inspector in issuing the order should
nevertheless be upheld "unless there is evidence that he has
abused his discretion or authority". Rochester and
Pittaburgh, supra 2164 quoting from Old Ben Coal Corp. v.
Interior Board of Mine Operation Appeals, 523 F.2d 25 at 31
(7th Cir. 1975).
For the reasons that follow I do not find in this case
that an "imminent danger" existed at the time the order was
issued. Furthermore, I find that the issuing inspector did
indeed abuse his discretion and authority in issuing the
order under the circumstances herein.
The issuing MSHA inspector, Donald Osborne, was
conducting an electrical inspection on February 1, 1990, in
the subject Meigs No. 31 Mine when he learned that an
accident had occurred the day before, injuring miner Bill
Yoho. The facts surrounding the accident are not in dispute.
The evidence shows that on January 31, 1990, at about 1:30 p.m.,
at the 6 Right off the 6 East Mains area at the No. 15 crosscut
several miners were in the process of removing an air compressor
with a 15 ton track mounted locomotive. They had rigged a sheave
block attached to the track to pull the compressor at a right
angle to the direction of the locomotive.
As they were pulling
the compressor toward the track it became stuck, a cnain link
failed and the wire rope snapped back striking Mr. Yoho in the
face and head. The wire rope was 40 feet long and Yoho was
admittedly standing within 1 1/2 lengths of the rope.

1475

Inspector Osborne testified that while no regulatory
violation existed in this case, the use of a wire rope
within a safety zone of 1 1/2 times the length of the rope
constituted an "imminent danger".
In support of his view
Osborne cited a memorandum issued by the corresponding MSHA
district manager on September 3, 1987, setting forth the
safety requirements to be followed when wire ropes are used
to move equipment i.e. a safety zone 1 1/2 times the length
of the wire rope or the use of a cage or barrier. Osborne
testified that the memo was in fact discussed with Southern
Ohio officials, including officials at the Meigs No. 31 Mine,
on January 9, 1988.
Osborne testified that the "practice" about which he was
concerned was of not protecting employees when using wire
ropes.
He acknowledged that since he was citing a "practice"
and not a "condition" he noted in the order that "no area
[was] affected".
Osborne conceded however that he did not
know whether the procedure followed in this instance was
indeed a "practice" at the subject mine. When asked how he
determined that the cited procedure was a "practice", Osborne
stated only that "I didn't know that it was [a practice];
however I did not know that it wasn't" (Tr .47).
The threshold issue in this case is whether the cited
procedures constituted a "practice" within the meaning of
section 3(j) of the Act.
The word "practice" is defined, as relevant hereto, in
Webster's New Collegiate Dictionary, G & C Merriam Company,
1979, as "a repeated or customary action" or "the usual way
of doing something". The issuing inspector clearly did not
have any direct evidence that the cited event was a "repeated
or customary action" or was "the usual way of doing
something" within this meaning. Nor could such findings be
made by inference i.e. an inference could not be drawn from
the observation of one incident that there was a "practice"
of performing the cited procedure.
See Mid-Continent
Resources 6 FMSHRC 1132 (1984); Garden Creek Pocahontas 11
FMSHRC 2148 (1989).
Accordingly the Secretary has failed to
sustain her burden of proving that a "practice" existed at
the time the order was issued.
There was therefore no
"imminent danger" within the meaning of section 3(j) of the
Act.
Moreover by the failure of the issuing inspector to have
conducted further investigation to determine whether the
cited procedures were indeed sufficiently repetitive to
constitute a "practice" I conclude that the inspector abused
his discretion and authority in issuing the order at bar. It
is clearly improper for the inspector to infer that the cited
events were a "practice" from the absence of evidence that

1476

they were not a practice. The Secretary has the burden of
proving each and every element supporting its withdrawal
order and she cannot shift that burden.
For this additional
reason the imminent danger withdrawal order must be vacated.
ORDER

i Gary Melick

·'
Adm;i. istrativefi Law Judge

I;

'

·'

Distribution:
David M. Cohen, Esq., American Electric Power Service Corp.,
161 w. Main Street, Box 700, Lancaster, OH 43130 (Certified
Mail)
Patrick M. Zohn, Esq., Office of the Solicitor, U.S.
Department of Labor, 881 Federal Office Building, 1240 East
Ninth Street, Cleveland, OH 44199 (Certified Mail)
nb

1477

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

JUL 2 71990
FMC WYOMING CORPORATION,
Contestant

.
:

v •.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Respondent
and
UNITED STEELWORKERS OF
AMERICA, DISTRICT 33,
Intervenor

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner
and

.
.
..
.
.

.

CONTEST PROCEEDINGS
Docket No. WEST 86-43-RM
Citation No. 2647693; 11/23/8
Docket No. WEST 86-45-RM
Order No. 2647695; 11/23/85
FMC Trena Mine
Mine ID 48-00152

CIVIL PENALTY PROCEEDING
Docket No. WEST 86-110-M
A.C. No. 48-00152-05535
FMC Trena Mine

UNITED STEELWORKERS OF
AMERICA, DISTRICT 33,
Intervenor

v.
FMC WYOMING CORPORATION,
Respondent

..
.

DECISION AFTER REMAND
Appearances:

James H. Barkley, Esq., Margaret A. Miller, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Respondent/Petitioner;
James Holtcamp, Esq., Vancott, Bagley, Cornwall &
McCarthy, Salt Lake City, Utah,
for Contestant/Respondent;
Stan Loader, Staff Representative, United Steelworkers of America, Rock Springs, Wyoming,
Intervenor.

Before:

Judge Cetti

1478

The Commission's remand involves two (2) violations, one of
30 C.F.R. § 57.5002 and one of 30 C.F.R.·§ 57.18002. The issues
which remained after remand are whether the violation of 30
C.F.R. § 57.5002 by FMC Wyoming Corporation (FMC) was significant
and substantial and the appropriate penalty for each of the two
violations.
I

PROPOSED SETTLEMENT
Prior to this decision on remand, the Secretary of Labor
(Secretary) and the operator, FMC Wyoming Corporation (FMC),
agreed to a settlement resolving all issues remaining before
me after the Commission's remand Decision. This settlement
agreement included a withdrawal of FMC's notice of contest to
both citations and a reduction of the penalties sought by the
Secretary.
Pursuant to this settlement agreement with FMC, the Secretary filed a Motion to Approve Settlement and Order Payment. The
intervenor, United Steelworkers of America, District 33 CUSWA),
which has party status pursuant to its request and my prehearing
Order granting party status, was neither a negotiator nor a participant in the negotiations of the settlement. USWA objected to
approval of the settlement and by my Order dated April 10, 1990.
I disapproved the proposed settlement on the basis of Commission
Procedural Rule 30 (29 C.F.R. § 2700.30Ca). 1/
Thereafter, the Secretary filed a motion, which I now have
before me, requesting I reconsider my Order Disapproving Settlement. The Secretary states in part, "While it is true that the
Secretary did not seek the concurrence of or consult the union
intervenor in this case in reaching a settlement with the operator, the Secretary believes that concurrence of the intervenor is
not a requirement" to an agreed settlement of the case.

1/

§ 2700.30

Penalty settlements.

(a) General. No proposed penalty that has been
contested before the Commission shall be compromised,
mitigated, or settled except with the approval of
the Commission after agreement by all parties to the
proceeding.
(Emphasis added)
~-

1479

Both the Secretary and USWA submitted points and authorities
in support of their position.
Having reconsidered the matter, I
find the position of USWA to be meritorious. Under the facts and
circumstances of this case, Commission Procedural Rule 30 unequivocally requires that the miner's representative CUSWA) be
an agreeing party to the settlement before it can be approved.
Absent Commission precedent changing the impact of this rule, I
am obliged to follow the same, and accordingly my Order Disapproving Settlement is here AFFIRMED.
II
SIGNIFICANT AND SUBSTANTIAL VIOLATIONS
The main issue before me at this time is whether FMC's
unwarrantable failure to comply with the mandate of 30 C.F.R.
§ 57.5002 constitutes a significant and substantial violation.
A "significant and substantial" violation is described in
Section 104(d)(l) 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. § 814Cd))l). A violation is properly designated significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of-the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum the Secretary of Labor must
prove:
Cl) 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:

1480

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 104Cd)(l), it is the
contribution of a violation to the cause and effect of
a hazard that IrD.lst 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, l574-7S (July 1984).
In Consolidation Coal Company v. Secretary of Labor, Mine
Safety and Health Administration, 8 FMSHRC 890, 897-98 (June
1982), aff'd, 824 F.2d 1071 CD.C. Cir. 1987), the Commission
adapted the Mathies f ormul4 to a health standard as follows:
Adapting this test to a violation of a mandatory
health standard, such as section 70.lOOCa), results in
the following formulation of the necessary elements to
support a significant and substantial finding:
Cl) the
underlying violation of a mandatory health standard;
(2) a discrete health hazard -- a measure of danger to
health -- contributed to by the violation; (3) a reasonable likelihood that the health hazard contributed to
will result in an illness; and (4) a reasonable likelihood that the illness in question will be of a reasonably
serious nature.
In applying the Mathies/Consol test to this case, I find, as I
did in my the initial decision, that FMC clearly violated the
provisions of the mandatory health standard 30 C.F.R.
§ 57.5002 2/ by its failure to take dust surveys while the maintenance crew removed insulation containing asbestos from its No.
3 turbine.
This failure eliminated the possibility of an accurate determination of whether or not maintenance crew employees
were overexposed to airborne asbestos. Exposing employees to

~/

30 C.F.R. § 57.5002 provides:
Dust, gas, mist, and fume surveys shall be conducted
as frequently as necessary to determine the adequacy of
control measures.

1481

airborne asbestos in an unknown concentration is a discrete hazard. Thus, the first and second elements of the Mathies/Consol
formula have been established.
Skipping the third element for a
moment, I find there is no significant dispute as to the fourth
element, since the evidence overwhelmingly showed that, if an
illness resulted from the exposure, the illness in question would
be an illness of a reasonably serious nature.
The third element the Secretary must prove is a reasonable
1-ikelihood that the health hazard contributed to will result in
an illness.
It is generally recognized that the development and
progress of respiratory disease is due to the cumulative dosage
of dust a miner inhales which, in turn, depends upon the concentration and duration of each exposure, and that proof of a single
incident of overexposure does not, in and of itself, conclusively
establish a reasonable likelihood that respirable disease will
result.
The exposure in this case was for a relatively short
period of time to an unknown concentration of airborne asbestos.
For this reason, I initially believed that the Secretary had not
proven the violation was S & s.
Now, however, it has been established by the Commission's finding that FMC's failure to take a
dust survey was not due to simple negligence, but was a result of
its unwarranted failure to comply with the mandatory health
standard.
This fact, plus my review of the evidence which indicates a reasonable likelihood that there was an overexposure,
leads me to conclude that FMC's violation of the mandatory health
standard was significant and substantial under the policy, law,
and rationale the Commission set forth in the Consolidation Coal
Company case, supra. Furthermore, it is believed that FMC should
not be allowed to defend on the basis of its unwarrantable failure to comply with the mandatory health standard, i.e., the failure to take the mandated dust surveys. FMC's violation of the
mandatory health standard under the facts and circumstances of
this case, is a significant and substantial violation.
III
PENALTY
The only remaining issue is the assessment of the appropriate civil penalties for FMC's violation of 30 C.F.R. § 57.5002
and 30 C.F.R. § 57.18002. With respect to the latter, the Commission found that FMC violated that portion of the mandatory
safety standard that requires the person making daily workplace
examinations to be a competent person.
In making this finding,
the Commission stated that the person FMC designated "cannot be
said to have had the ability and experience fully qualifying him
to examine the workplace around the turbine for conditions which
might adversely affect safety and health."

1482

It is undisputed that FMC is a large operator, and appropriate penalties will not impair FMC's ability to continue in business. The parties stipulated that the operator's history of
prior violations is average for an operator of its size, and that
the violations were abated within the time period prescribed. The
negligence of FMC and the gravity of the violations are both high.
Taking into consideration the six statutory criteria in Section
llO(i) of the Mine Act, I find that the appropriate civil penalty
for·FMC's violation of 30 C.F.R. § 57.5002 is $2,000 and the
appropriate penalty for its violation 0£ 30 C.F.R. § 57.18002 is
$800. These assessments are considerably higher than MSHA's
initial proposed penalty of $500 for each of the violations, but
these higher penalties are justified and fully supported by the
record.
ORDER
1. Citation No. 2647693 alleging a significant and substantial violation of 30 C.F.R. § 57.5002 caused by FMC's unwarrantable failure to comply with the mandatory safety· standard is
AFFIRMED and a civil penalty of $2000 is assessed.
§

2. Order No. 2647695 alleging a violation of 30 C.F.R.
57.18002 is AFFIRMED and a civil penalty of $800 is assessed.

3.
FMC Wyoming Corporation is directed to pay the Secretary of Labor the above-assessed civil penlaties in the sum of
$2800 within 30 days of the date of this Decision.

~~~C!dtz
st F. Cetti
inistrative Law Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
Matthew F. McNulty III, Van Cott, Bagley, Cornwall & McCarthy,
50 South Main Street, Suite 1600, Salt Lake City, UT 84144
(Certified Mail)
Stan Loader, USWA Staff Representative and Miners Representative,
P.O. Box 1315, Rock Springs, WY 82902
(Certified Mail)
Harry Tuggle, Safety and Health Specialist, Safety and Health
Department, United Steelworkers of America, Five Gateway Center,
Pittsburgh, PA 15222 (Certified Mail)
/ek
1483

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

C"uly 31, 1990

CONTEST PROCEEDING

ENERGY FUELS MINING COMPANY,
contestant

Docket No. WEST 90-211-R
Citation No. 3240559; 12/11/89

v.

Raton Creek No. 2

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

Mine ID 05-3817

ORDER OF DISMISSAL

Before:

Judge Merlin

on June 22, 1990, I issued an order stating that it was not
clear from the pleadings then of record whether the operator was
filing a notice of contest challenging the issuance of the
subject withdrawal order or was contesting the penalty assessment. The parties were directed to submit further information
and to set forth their positions with respect to the timeliness
of the operator's filings.
From the statements now filed by the parties, it appears
that the notice of contest filed on May 24, 1990, was directed to
the penalty assessment. 1 The Solicitor advises that the penalty
proposal was sent to the operator on March 7, 1990, and according
to the return receipt card was received on March 15, 1990. The
Solicitor claims the filing is untimely and must be dismissed.
The operator argues the filing should be accepted.
Section 105(a) of the Mine Act, 30 u.s.c. § 815(a), provides
in pertinent part:
If, after an inspection or investigation, the
Secretary issues a citation or order under section 104,
he shall, within a reasonable time after the termination of such inspection or investigation, notify the
operator by certified mail of the civil penalty proposed to be assessed under section llO(a) for the
The notice of contest was filed with Commission's Office
of Administrative Law Judges in Falls Church, Virginia. It
should have been filed at Commission headquarters in Washington,
D.C. 29 C.F.R. § 2700.5.

1484

violation cited and tha- the operator has 30 days
within which to notify the Secretary that he wishes to
contest the citation or proposed assessment of penalty.
A copy of such notification shall be sent by mail to
the representative of miners in such mine.
If, within
30 days from the receipt of the notification issued by
the Secretary, the operator fails to notify the Secretary that he intends to contest the citation or the
proposed assessment of penalty, * * * the citation
and the proposed assessment of penalty shall be deemed
a final order of the Commission and not subject to
review by any court or agency. * * * *
§

Section 2700.25 of Commission regulations, 29 C.F.R.
2700.25, states as follows:
The Secretary, by certified mail, shall notify the
operator or any other person against whom a penalty is
proposed of: (a) The violation alleged; (b) the amount
of the penalty proposed; and (c) that such person shall
have 30 days to notify the Secretary that he wishes to
contest the proposed penalty.
If within 30 days from
the receipt of the Secretary's notification of proposed
assessment of penalty, the operator or other person
fails to notify the Secretary that he intends to contest the proposed penalty, the Secretary's proposed
penalty shall be deemed to be a final order of the
Commission and shall not be subject to review by the
Commission or a court.

And Section 100.7(b) of the Secretary of Labor's regulations, 30 C.F.R. § 100.7(b) reads in relevant portion:
Upon receipt of the notice of proposed penalty,
the party charged shall have 30 days to: (1) Pay the
proposed assessment (acceptance by MSHA of payment
tendered by the party charged will close the case); or,
(2) notify MSHA in writing of the intention to contest
the proposed penalty. The Office of Assessments shall
provide a return mailing card with each notice of
proposed penalty to be used by the party charged to
request a hearing before the Federal Mine Safety and
Health Review Commission under Section 105 of the Act.
Such a request must be sent to the address listed on
such notification. When MSHA receives the notice of
contest, it shall immediately advise the Commission of
such notice, and shall promptly forward the case to the
Office of the Solicitor. No proposed penalty which has
been contested before the Commission, shall be compromised, mitigated or settled except with the approval
of the Commission.

1485

{c) The fa .... lure to pay or to coi.:cest the proposed
penalty within 30 days of receipt of notice thereof
shall result in the proposed penalty being deemed a
final order of the Commission and not subject to review
by any court or agency.
As set forth above, the operator received notice of the
proposed penalty by March 15, 1990. It took no action within
30 days. Indeed, it has never sent back the return mailing card
(commonly calleq the "blue card") provided by MSHA to request a
hearing. The notice of contest which was not filed until May 24,
1990, was 40 days late.
Since the operator failed to file within the statutorily
prescribed time period, this case must be dismissed. The Act
specifically mandates that a penalty not contested within the
allotted period the proposed assessment shall be deemed a final
order of the Commission not subject to review by any court or
agency. Northern Aggregates Inc., 2 FMSHRC 1062 (May 1980)
(Administrative Law Judge Melick). Cf. J. P. Burroughs and Sons,
Inc., 3 FMSHRC 854 (April 1981); Old Ben Coal Company, 7 FMSHRC
205 (February 1985); Local Union 2333, District 29, UMWA v.
Ranger Fuel corporation, 10 FMSHRC 612, 618 (May 1988); Peabody
Coal Company, 11 FMSHRC 2068, 2092, 2093 (October 1989)
(Administrative Law Judge Koutras).
In this connection it must also be noted that a long line of
cases going back to the Interior Board of Mine Operation Appeals
have held that cases contesting the issuance of a citation must
be brought within the statutory prescribed 30 days or be dismissed. Freeman Coal Mining Corporation, 1 MSHC 1001 (1970);
Consolidation Coal Co., 1 MSHC 1029 (1972); Island Creek Coal Co.
v. Mine Workers, 1 MSHC 2143 (1979), aff'd by the Commission, 1
FMSHRC 989 (August 1979); Amax Chemical Corp., 4 FMSHRC 1161
(June 1982) (Administrative Law Judge Steffey); Rivco Dredging
Corp., 10 FMSHRC 889 (July 1988) (Administrative Law Judge
Maurer); See Also, Peabody Coal Co., supra; and Big Horn
Calcium, 12 FMSHRC 463 (March 1990) (Administrative Law Judge
Cetti). Accordingly, the time requirements for contesting the
issuance of a citation and for contesting the penalty assessment
which appear together in section 105(a), must be viewed as
jurisdictional. It is well settled that jurisdiction cannot be
waived and can be raised by the court sua sponte at any stage of
the proceedings. Insurance Corporation of Ireland, LTD,
et al. v. Compagnie des Bauxites, 456 U.S. 694, 701-702 (1982);
Athens Community Hospital, Inc. v. Schweiker, 686 F.2d 989 (D.C.
Cir. 1982).
The only case cited by the operator, Humphrey v. Samples,
1 MSHC 1723 (1979), is distinguishable.
It involved a complaint
of discrimination filed under Section 105(c) of the Act.
30 U.S.C. § 815(c). The legislative history of 105(c) expressly

1486

p~ovides

that the time allowed for filing a discrimination case
should not be construed strictly where the filing of the complaint is delayed under justifiable circumstances. s. Rep. No.
181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd
Sess., Legislative History of the Federal Mine Safety and Health
Act of 1977, p. 624 (1978). Bryant v. Dingess Mine Service, et
al., 9 FMSHRC 336 (February 1987) (Administrative Law Judge
Broderick); Mcintosh v. Flaget Fuels, 12 FMSHRC 1151 (May 1990)
(Administrative Law Judge Koutras).
The foregoing is dispositive. But it is noted that this
operator has appeared before the Commission ~n many other proceedings, is represented by counsel and offers no excuses for its
tardiness.
In light of the foregoing, this case is DISMISSED.

Law Judge
Distribution:
Phillip D. Barber, Esq., Energy Fuels Mining Company, Welborn,
Dufford, Brown & Tooley, P.C., 1700 Broadway, Suite 1700, Denver,
co 80290-1701
(Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, U. s. Department of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294
(Certified Mail)
Richard A. Munson, Esq., One Tabor Center, 1200 17th Street,
Suite 2500, Denver, CO 80202
(Certified Mail)
Mr. Keith Hill, Director, Safety and Training, Energy Fuels coal,
Inc., P. o. Box 449, Florence, co 81226
(Certified Mail)
Lawrence Beeman, Director, Office of Assessments, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Hand Deliver)
/gl

1487

ADMINISTRATIVE LAW JUDGE ORDERS

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

July 6, 1990

UNITED MINE WORKERS OF AMERICA,
ON BEHALF OF
GILBERT ROYBAL,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. WEST 90-118-D
DENV CD 90-01
Golden Eagle Mine

WYOMING FUEL COMPANY,
Respondent
ORDER
On July 5, 1990, the United Mine Workers of America on
behalf of Filbert Roybal, Complainant, filed a motion for my
recusal, stating that Wyoming Fuel Company attorney Lawrence J.
Corte would be a witness in the case and that the credibility of
this local (Denver) attorney "will constitute a crucial issue" in
this case.
Recusal of a Mine Safety and Health Review Commission Judge
is governed by Commissioner Procedural Rule 81 (29 C.F.R.
§ 2700.81, which provides as follows:
§

2700.81 Disqualification

(a) Withdrawal generally. A Commissioner or
Judge may withdraw from a proceeding whenever he
deems himself disqualified.
(b) Request to withdraw. Any party may request
a Commissioner, or the Judge (at any time following
his designation and before the filing of his decision), to withdraw on grounds of personal bias or
disqualification, by filing promptly upon discovery
of the alleged facts an affidavit setting forth in
detail the matters alleged to constitute grounds for
disqualification.
(c) Procedure if Judge does not withdraw. If the
Judge does not disqualify himself and withraw from
the proceeding, he shall so rule upon the record,
stating the grounds for his ruling and shall proceed
with the hearing, or, if the hearing has been completed he shall proceed with the issuance of his
decision, unless the Commission stays the hearing or
further proceedings by granting a petition for interlocutory review.

1488

After consideration of the matter, upon my own motion,
pursuant to the Commission Procedural Rule 81 (29 C.F.R.
§ 2700.81, I hereby disqualify myself and withdraw from this
proceeding.

{2~_,__d;_;;f C?en
~'1g
Ad

-~·. Cett1
nistrative Law Judge

Distribution:
Gerard C. Boyle, Esq., Susan J. Tyburski, Esq., BOYLE &
TYBURSKI, 621 - 17th Street, Suite 2300, Denver, CO 80293
Timothy M. Biddle, Esq., Susan E. Chetlin, Esq., CROWELL &
MORING, 1001 Pennsylvania Avenue, N.W., Washington, D.C.
20004-2505

/ek

1489

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

July 23, 1990

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

v.
CANYON COUNTRY ENTERPRISES,
d/b/a CURTIS SAND & GRAVEL,
CORPORA~ION,

Respondent

DISCRIMINATION PROCEEDING

.

Docket No. WEST 90-165-DM
M9 89-24

..
..
.

Soledad Canyon Mine

ORDER DIRECTING RESPONDENT TO FULLY ANSWER DISCOVERY REQUESTS
On or about June 12, 1990, Complainant served on Respondent
certain Interrogatories and a Request for Production of
Documents.
On July 9, 1990, Complainant filed its Motion for Order
Compelling Responses To Discovery Requests, attaching Respondent's answers thereto, pointing out accurately that Respondent
"hao provided no information whatsoever in response to those
requests, opting instead to object on general and spurious
grounds."
Respondent's counsel may not be familiar with Commission
practice which is traditionally liberal on these matters.
As to
the request for production of documents, Respondent, in its
"General Objections," misconstrued the provisions of Commission
procedural Rule 57 (2900 C.F.R. § 2700.57). 1/ Respondent also
complains that the Complainant's discovery request was 9 days
over the 60-day period provided in Rule 55. Complainant has
shown that Respondent's answer to its Complaint was not received
by it until approximately one month after it was due. Whether or
not this delay was attributable to any tardiness on Respondent's part, it constitutes good cause for Complainant's very
nominal delay in initiating discovery and, accordingly, pursuant
to the authority provided in Rule 55, discovery time is extended
- to be completed by September 28, 1990.

1/
I find no "good cause" for excusing Respondent from answering the discovery requests of Complainant.
There is no claim of
prejudice from Respondent from the delay and I would certainly
inf er none from the short period involved.

1490

Respondent has also raised various "Special Objections" to
the requests for document production and interrogatories, for the
most part, that such are 11 overbroad, 11 "burdensome," protected by
the attorney-client privilege, and irrelevant.
I have studied
both the requests and objections, and find such objections are
either the result of a misunderstanding of the issues in a mine
safety discrimination case, or are simply contentious. Such
objections are couched in broad language. The information sought
by Complainant is clearly within the scope of that permitted by
Procedural Rule 55(c) which provides:
(c)
Scope of discovery. Parties may obtain
discovery of any relevant matter, not privileged, that is admissible evidence or appears
reasonably calculated to lead to the discovery
of admissible evidence.
Accordingly, all such objections are denied and Respondent
is directed to fully, and in good faith, answer such on or before
August 17, 1990. Counsel are requested to attempt to cooperate
in discovery and procedural matters so that this matter can be
brought to focus on major issues. Counsel are also requested to
further explore the amicable resolutio.n of this matter.
The presence of legal counsel in an administrative proceeding--and before this Commission--will be expected to bring with
it a higher degree of professionalism and responsibility to the
tribunal and its purpose. Pro forma objections and obstructions
are not encouraged or countenanced.
The attention of counsel to Commission Procedural Rule 63
C2700 C.F.R. § 63) is invited.

{kr~~J~ ~ ~-( 4

Michael A. Lasher Jr.
Administrative Law Judge

1491

Distribution:
Susanne Lewald, Esq., Office of the Solicitor, U.S. Department of
Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 94105
Scott H. Dunham, .Esq., O'MELVENY & MYERS, 400 South Hope Street,
Los Angeles, CA 90071-2899
Michael G. McGuinness, Esq., O'MELVENY & MYERS, Canyon Country
Enterprises, d/b/a Curtis Sand and Gravel Corporation, 400 South
Hope Street, Los Angeles, CA 90071-2899
Dana R. Corey, Esq., GILL & BALDWIN, 1444 North Brand Boulevard,
Glendale, CA 91203

/ek

1492