NOVEMBER 1991
COMMISSION ORDERS
11-13-91

Contests of Respirable Dust Sample Alteration
Citations

Master Docket 91-1 Pg. 1781

ADMINISTRATIVE LAW JUDGE DECISIONS
11-04-91
11-04-91
11-05-91
11-05-91
11-07-91
11-08-91
11-08-91
11-08-91
11-15-91
11-18-91
11-18-91
11-18-91
11-19-91
11-20-91
11-20-91
11-20-91
11-27-91

Southern Ohio Coal Company
Sec. Labor for Joseph Culp v. Mid-Continent
Resources, Inc.
Kocher Coal Company
Sec. Labor for Joseph A. Smith v. Helen
Mining Company
Consolidation Coal Company
James N. Boyd v. Trojan Mining Company
Keith Sturgill v. South East Coal Company
Drummond Company
Consolidation Coal Company
Pittsburg & Midway Coal Mining Company
Asarco, Incorporated
Mendisco Mining
Consolidation Coal Company
Lambert Coal Company
Wyoming Fuel Company
Koch Carbon, Inc. - Koch Raven Division
Consolidation Coal Company

WEVA 91-337-R
WEST 91-160-D

Pg. 1783
Pg. 1803

PENN 91-160
PENN 92-15-D

Pg. 1806
Pg. 1808

WEVA 91-178
Pg. 1811
KENT 91-239-D Pg. 1821
KENT 91-973-D Pg. 1822
SE
91-10-R
Pg. 1823
WEVA 91-145-R Pg. 1826
CENT 91-12
Pg. 1828
WEST 91-113-M Pg. 1831
WEST 91-230-M Pg. 1833
WEVA 91-109
Pg. 1835
VA
91-565
Pg. 1843
WEST 91-365-R Pg. 1845
VA
91-564
Pg. 1847
WEVA 91-292
Pg. 1849

ADMINISTRATIVE LAW JUDGE ORDERS
11-18-91

El Dorado Chemical Company

WEVA 91-1988

Pg. 1850

NOVEMBER 1991
Review was granted in the following cases during the month of November:
Secretary of Labor, MSHA v. Cyprus Tonopah Mining Corporation, Docket No.
WEST 90-202-M, etc. (Judge Lasher, September 23, 1991).
Roy Farmer and Others v. Island Creek Coal Company, Docket No. VA 91-31-C.
(Judge Melick, Interlocutory Review of September 27, 1991 Order).
Contests of Respirable Dust Sample Alteration Citations, Docket No. 91-1.
(Interlocutory review of Judge Broderick's October 7, 1991 Order).
Gatliff Coal Company, Inc., v. Secretary of Labor, MSHA, Docket No.
KENT 89-242-R. (Judge Melick, October 10, 1991).
Air Products and Chemicals, Inc •. v. Secretary of Labor, MSHA, Docket No.
PENN 91-1488-R. (Judge Melick, ,Qctober. 16, 1991).

Review was denied in the following cases during the month of November:
Secretary of Labor, MSHA v. JVAL Incorporated, Docket No. WEST 90-201-M,
etc. (Judge Morris, October 11, 1991).
Willie Williams, Jr. v. Jim Walter Resources, Inc., Docket No. SE 91-95-D.
(Judge Koutras, October 16, 1991)

COMMISSION ORDERS

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

November 13, 1991

IN RE:

CONTESTS OF RESPIRABLE DUST
SAMPLE ALTERATION CITATIONS

MASTER DOCKET NO. 91-1

DIRECTION FOR REVIEW
ORDER GRANTING STAY
On October 21, 1991 the Secretary of Labor filed a Petition for
Interlocutory Review of the October 7, 1991 Order of the administrative law
judge, insofar as it orders the Secretaryto produce six specific documents
sought by respondents in.discovery.
On October 25, 1991 contestants represented by Jackson & Kelly filed a
Petition for Interlocutory Review of the September 13, 27 and October 7, 1991
Orders of the administrative law judge, insofar as the Orders upheld the
Secretary's claim of privilege wiLh respect to forty-eight documents sought in
discovery.
·
Both parties assert that their respective petitions raise issues that
satisfy the requirements of Commission Rule 74, 29 C.F.R. § 2700.74. Upon
inspection of the petitions, we conclude that the parties have raised
controlling questions of law, and that our review of the relevant orders may
materially advance the final disposition of the proceeding.
Accordingly, the petitions for interlocutory review are hereby granted.
The parties are directed to comply with the briefing requirements set forth in
Rule 74, 29 C.F.R. § 2700.74 with the exception that the filing time available
to each petitioner shall be ten days after service of this order. In all
other respects the requirements of Rule 74 obtain.

1781

For good cause shown, the judge's Order to produce the six documents for
which the Secretary has sought protection is hereby stayed pending further
notice.

~~

~
Richard V. Backley, Commissioner

Arlene Holen? Co~~oner

···~/~'--'
L. Clair Nelson, Commissioner

ADMINISTRATIVE LAW JUDGE DECISIONS

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

NOV 4 1991
CONTEST PROCEEDING

SOUTHERN OHIO COAL CO.,
Contestant

v.

Docket No. WEVA 91-337-R
Order No. 3116688; 3/18/91

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

Martinka No. 1 Mine

DECISION
Appearances:

David M. Cohen, Esq., American Electric Power
Service Corporation, Lancaster, Ohio, for the
Contestant;
Glenn M. Loos, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the
Respondent.

Before:

Judge Koutras
Statement of the case

This proceeding concerns a Notice of Contest filed by the
contestant pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, challenging the legality and propriety of a
section 103(k) order issued at the mineo A hearing was held in
Morgantown, West Virginia, and the parties appeared and participated fully therein. They waived the filing of posthearing
briefs, but they presented oral argument at the c+ose of the
hearing, and I have considered their arguments in the course of
my adjudication of this mattero
Issues
The principal issue in this case is whether or not the
contested order was justified and properly issued, or whether the
inspectors acted unreasonably and arbitrarily in issuing the
order. 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.

1783

2.

Section 103(k) of the Act, 30 U.S. § 813(k).

3.

Commission Rules, 29 C.F.R. § 2700.1, et seq.
Stipulations

The parties stipulated to the following (Tr. 7).
1.

The contestant is the owner of the Martinka
No. 1 Mine, and it is subject to the Act.

2.

MSHA Inspectors Tom May and David Workman are
authorized representatives of the Secretary
of Labor.

3.

The contested section l03(k) order was issued
on March 18, 1991, and a copy was served on
the contestant.
Discussion

The contested section 103(k) Order No. 3116688, issued at
11:50 p.m., on March 18, 1991, states as follows:
A roof fall has occurred in front of the Nos. 1-2-3-4
and 5 shields located at the head gate of the B-12
longwall section. The roof fell above the bolts and
impedes passage from the stageloader area to the face.
This order is issued for the safety of the miners. The
following persons are allowed to enter the area; state
mine inspectors, U.M.W.A. reps, and company reps.
The "area or equipment" affected by the order is shown on
the face of the order as the "B-12 longwall section", and the
order reflects that it was terminated at 3:00 a.m., March 19,
199le after the completion of an investigation.
MSHA's Testimony and Evidence
MSHA Inspector David E. Workman testified that he conducted
a regular AAA inspection of the mine on Mondayu March 18u 1991,
and that he arrived at 7~30 a.m., and left at 5:30 p.m. He
confirmed that he received no reports of any roof falls on that
day except that at approximately 4:00 p.m., while in the safety
department office with Inspector May, and a company and union
representative, company safety representative Dan Coneway
informed him that a roof fall had been reported to him but that
he did not know whether it was a "reportable fall". Mr. Coneway
told him that he was not aware that anyone was injured and that
he was going underground to investigate the matter. Mr. Workman
informed Mr. Coneway that if he determined that the fall occurred
above the anchorage zone and was impeding passage to call out and

1784

let him know and that he would go in and investigate the matter
if it was a reportable fall.
(Tr. 22).
Mr. Workman stated that state inspector Albert Lacara was
also present when Mr. Coneway informed him of the fall, and
Mr. Lacara informed him that he would go in and look the area
over. Mr. Workman stayed at the mine until 5:30 p.m., and no one
provided him with further information about the fall. He left
the mine to return to his off ice and no one from management
called him there or at home to report any fall. However, at
approximately nine or ten p.m. that evening he received an
anonymous call at home informing him of "a massive roof fall" on
the B-12 longwall headgate area. He called his supervisor and
informed him of the call, and then proceeded to the mine. He
also contacted Mr. May and invited him to the mine to help him
investigate the fall (Tr. 23-25).
Mr. Workman arrived at the mine at approximately 11:30 p.m.
on Monday, March 18, 1991, and spoke with shift foreman Jim
Keener. Mr. Keener confirmed that a fall had occurred on the
longwall headgate but that he... had not seen it, and that it was
reportably 20 to 30 feet high. Mr. Keener also confirmed that
the longwall was not in operation and that debris was being
removed so that the face could be advanced to pull the shields in
under the fall area. Mr. Workman then proceeded to interview
three miners who had worked on the previous 12:00 a.m. to
8:00 a.m. shift on Monday morning.
Mr. Workman stated that stage loader operator Duke Willard
told him that the roof was working throughout most of his shift
in front of the No. 1 through 3 shields and that it fell toward
the stage loader sometime between 7:30 and 8:00 a.m. on Monday
morning, and that 2 roof bolts and fallen roof materials were
laying in the stage loader" General laborer Roger Hutchinson
informed him that the fall occurred in front of the shields on
the headgate side, and that he saw roof bolts still hanging. He
placed the fall at approximately 7:45 a.m. Mechanic Robbie
Robinson informed him that the fall occurred in front of the
No. 1 through 5 shields outby the stage loader at approximately
8~00 a.m, and that roof bolts and roof material fell into the
stage loader conveyor chains. Foreman Ed Lane instructed him to
call out and report the fall, and he did. He also reported it to
the longwall superintendent (Tr. 26-28).
Mr. Workman was of the view that the roof fall as described
to him by the three miners should have been reported to him or to
Mr. May during the day of their inspection on Monday, March 18,
and that someone on the shift should have known whether or not
the roof fell above the anchorage and impeded passage and
reported it as a reportable unplanned fall. Under the
circumstances, he notified Mr. Keener at 11:50 p.m. that he was
under a section 103(k) order and that he would be making an

1785

investigation. Mr. Workman explained that he issued the order in
order to withdraw people from the area until an investigation was
completed to evaluate the conditions and determine the corrective
action needed (Tr. 29). In this instance, he also found an order
necessary to insure the safety of miners because the information
he received from the three miners that the roof bolts came down
would indicate that the fall was above the roof bolts and that
the adverse roof conditions could cause injury if anyone were hit
by the falling roof. The roof bolts laying in the stage loader
would indicate a fall above the roof bolt anchorage zone and a
potential hazard to miners. He confirmed that he was upset
because the roof fall had not been reported (Tr. 30-31).
Mr. Workman confirmed that after issuing the order he did
not immediately go underground to the area where the fall had
occurred. He spent time reviewing records and speaking to
others, and management personnel were on their way to the mine.
After Mr~ May, the company safety manager, and the mine
superintendent arrived, they all went underground and arrived at
the section at 2:30 a.m., Tuesday morning, March 19. All work
had ceased and people had been.withdrawn because of the order.
He looked over the area and observed that a fall had occurred
rib-to-rib and approximately 20 feet to the top of the roof
cavity. He described what he saw, confirmed a sketch of the
scene, and indicated that the fall should have been reported as a
reportable roof fall (Tr. 36). He discussed with management the
corrective action required, including installing bars across the
brow at the edge of the fall to prevent it from falling out, and
the fall was still present (Tr. 38). The fall had existed for
approximately 14 hours without being corrected, and the order was
terminated at 3:00 a.m., after the area was supported and cleared
out (Tr. 39).
Mr. Workman confirmed that management was doing a good job
of recovering the fallu and it was directing the work force
properlyo Everyone was aware of the conditions and proper
planning procedures were in place. He terminated the order after
concluding his investigation and determining that. the health and
safety of the miners was no longer in danger (Tr. 41).
On cross-examination, Mr. Workman confirmed that at the time
Mr. Conoway informed him about the fall he stated that he was
unsure as to whether it was reportable or not, but that he was
letting him know that a fall had occurred. Mr. Workman further
confirmed that inspector May and the state inspector were also
present at that time, but that he and Mr. May did not go to the
section to look into the matter because "I didn't know that it
was a reportable fall under Part 50, as to whether it would
require an investigation under 103(k) of the Act" (Tr. 42}. The
state inspector informed him that he would go to the area, but he
did not call the inspector to determine what he may have found,
and he did not know whether any state violations were issued

1786

(Tr. 41-45). Mr. Workman confirmed that when there is a fall
above the anchorage area it must be reported to MSHA as a
reportable roof fall and MSHA will then inform the operator that
it will investigate the matter (Tr. 46). He indicated that not
all reportable falls require the closing of a portion of the mine
to insure the safety of miners, nor do they require the immediate
attention of MSHA (Tr. 48).
Mr. Workman stated that he based his order on the
information he received from foreman Keener that a roof fall had
occurred, and the interviews with the three miners on the
12:00 a.m. to 8:00 a.m. Monday morning shift. He acknowledged
that Mr. Keener told him "he didn't know that much about what was
going on up there", and that he would not know what happened
between 8:00 a.m. and the time he issued the order at 11:50 p.m.
Mr. Workman confirmed that management was working during the day
to remove the fallen roof material and was following proper
cleanup procedures (Tr. 51). He also confirmed that the
information from the anonymous caller that there had been "a
massive roof fall" was exaggerated.
Mr. Workman stated that it was necessary to issue the order
in order to determine whether the fallen roof area was properly
supported to prevent the fall from continuing to fall down the
entry, whether the edge of the fall was properly supported, the
type of supports which were present in the area, and the
maintenance of the equipment (Tr. 57). He also considered the
fact that the fall was still present after 14 hours after it
happened and that it was reported to be 20 to 30 feet high, and
11 that gives me a
lot of reason to go in and look at it for the
health and safety of the people 11 {Tr. 59).
Mr. Workman confirmed that other than speaking to shift
foreman Keener, he did not inform the safety department that he
was going to conduct interviews with the three miners in
questiono However, Mr. Keener and another foreman were present
during the interviews. Mr Workman also confirmed that he told
the company safety representative that it was ba~ically his
investigation and that he was not to ask any questions while he
was interviewing the miners (Tr. 63-64)0 Mr. Workman conceded
that he could have gone underground immediately after issuing the
order at 11:50 p.m., and that a union and company safety
representative were present at that time. He explained that he
did not do so because "I didn't feel there was an imminent danger
situationnv but that based on the information he received during
the three interviews "I felt that a policy order, such as a
103(k)u is issued to make an investigation, which is what I done"
(Tr. 67). He further explained as follows at (Tr. 68):

Q.

But you didn't look at the conditions and then issue
the order. You issued the order, then waited a few

1787

hours and then looked at the conditions.
correct?

Is that

A.

Yes, it is.

Q.

It appears to me that the reason why a order was issued
was largely due to you being upset about not being told
about the roof fall.
Is that a fair statement?

A.

That is a very fair statement.

Q.

So then if the roof fall would have been reported, you
may not have issued the (k) order?

A.

I would have investigated and may not have issued a (k)
order. That is exactly right.

Yes, sir, it is.

Mr. Workman stated that after he and Mr. May went to the
fall area, he found that the crosscuts had been supported
properly and that cribs were installed in the entry. However,
the brow at the edge of the fall needed to be supported, and
after discussing it with management, it was supported and he was
then able to terminate the order within a half an hour (Tr. 74).
He agreed that the best course of action to take when there is a
roof fall at the headgate longwall area is to mine through the
area as quickly as possible. He conceded that his order stopped
all mining, but since 14 hours had already been wasted, "I didn't
think a couple more hours was going to hurt that much" (Tr. 76).
Mr. Workman confirmed that roof falls above the anchorage
zone have occurred in the past at the mine, and they have been
reported by management. He did not believe that the mine has a
history of trying to hide them from MSHA (Tr. 77). He further
justified his order with the following explanation at (Tr. 9091) ~

After I gained the knowledge and the aspects of the
particular occurrence of that fall on the B~12
longwall 1 I made the determination at that time as a
Federal Coal Mine Inspector that I needed to issue a
103(
order because of the length of time that the
condition existed; because of the lack of
communication 1 of properly reporting; not knowing
whether any injuries had occurred or were reported to
me to have occurred1 or a potential of other conditions
existing that could have caused injuries to
individuals.
Mr. Workman confirmed that the fact that 14 hours had passed
did not indicate that management was not trying to do anything
about the roof conditions, and he explained what was being done
(Tr. 98).

1788

MSHA Inspector Thomas W. May confirmed that he inspected the
mine on March 18, 1991, with Mr. Workman and that they were there
from 7:30 a.m. until 5:30 p.m. He stated that at approximately
4:15 p.m., he received a report from Mr. Conoway who informed him
and Mr. Workman that there was a roof fall at the longwall
headgate but that he did not know whether it was reportable or
not and that he was going to investigate. Mr. Workman informed
Mr. Conaway to notify him if the roof fall was reportable, and if
it was, he and Mr. May would go back underground. Mr. May stated
that he and Mr. Workman left the mine at 5:30 p.m., and no one
called them further about the fall (Tr. 107-111).
Mr. May stated that Mr. Workman called him late on the
evening of March 18, and informed him of the fall. Mr. Workman
advised him that someone had called him and reported that the
fall was above the anchorage level. Mr. May then went to the
mine and arrived there shortly after l:OO a.m., Tuesday,
March 19. Mr. Workman had already issued the section 103(k) by
the time he arrived at the mine (Tr. 112). Workman told him he
issued the order "for the health and safety of the miners" and
that he had been informed that.t~e headgate had fallen in above
the anchorage level and that there was a problem with the
passageway to the longwall face. Mr. May confirmed that he
signed the order and agreed with it (Tr. 113).
Mr. May stated that upon investigation of the fall area, he
found that the roof had fallen above the roof bolt anchorage in
the headgate entry, and that cribs and posts were set in response
to the fall.
He stated that the operator was trying to mine out
from under the fall, and discussions and recommendations took
place with management in order to find a way to get the shields
under the supports in order to mine out of the area (Tr. 113114). Mr. May confirmed that he spoke with the headgate operator
(Duke Willard) who informed him that the fall occurred at
approximately 7~00 a.m. on his previous midnight shift and that
bolts had fallen out and were in the pan (Tr. 115).
Mr. May believed that the order was justified to protect the
health and safety of miners because of the roof conditions and
impeded headgate passageway, and the fact that he and Mr. Workman
were not modified of the fall in a timely manner so they could
investigate it. He believed that miners faced a danger of
additional fall of roof while going to and from the face.
He
believed that Mr. Workman had acted properly in issuing the order
to insure that the recovery procedures were adequate to insure
that no one was injured (Tr. 117). Mr. May stated that the
purpose of the investigation was to find out what was going on
underground in the section (Tr. 118). He confirmed that the
order was in effect from approximately midnight, March 18, to
3:00 a.m., March 19, and he did not believe that this was a long
time for an accident investigation (Tr. 119).

1789

on cross-examination, Mr. May confirmed that he did not
believe it was necessary to go back into the mine after
Mr. Coneway initially reported the fall because a state inspector
was there and he indicated that he would look at the fall.
However, Mr. May did not follow up and speak with the inspector
because he "felt no need" to do so. Mr. May also considered the
fact that two other MSHA inspectors were in the mine and that "If
they had a reportable fall and there was a hazard, they would
surely have reported it to someone during the day" (Tr. 122).
Mr. May further confirmed that if the fall were reportable under
Part 50 of MSHA's regulations, he would have gone back into the
mine. However, absent other circumstances, if the fall is not
reportable, there would be no need to go back in (Tr. 122).
Mr. May stated that he first learned that Mr. Workman had
issued the order when he arrived at the mine, and that they did
not previously discuss the order. Mr. May confirmed that the
order was initially verbally issued and it was issued in writing
"after everything was taken care of" •. Mr. May explained why the
order was issued, and he indicated that the fall area had not
been moved through and was not,·supported to facilitate passage.
The area must be properly supported before it is mined through
(Tr. 13 0-132) •
Mr. May confirmed that he was involved in the examination
and investigation of the fall area, including some discussions
with miners who were working on the shift when the fall occurred
(Tr. 137-138). MSHA's counsel pointed out that Mr. Workman
issued the section 103(k) order verbally at 11:50 p.m., as noted
on the face of the written order. Counsel confirmed that Mr. May
did not participate in the miner interviews conducted by
Mr. Workman, and that Mr. Workman made his own decision to issue
the order based on his interviews with the miners (Tr. 137-139).
Mr. May conceded that he did nothing about the fall from the
time it was initially reported at 4:00 p.m, March 18, by
Mro Conaway, and the time he went to the fall scene on the
morning of March 19, because "it had not been reported as a
reportable roof fall" (Tr. 139). However, he indicated that one
of the purposes of a section 103(k) order is to "preserve the
site 11 • He denied that doing nothing was contrary to the safety
interests of miners. He explained that work continued for 16
hours before the order was issued and the area still had not been
mined through. Under the circumstances, he believed "there is
something wrong with the procedure that they're using" (Tr. 141).
Mr. May explained his reasons for not going to the fall area
when it was initially reported at 4:00 p.m., March 18, by
Mr. Coneway, and he relied on the fact that there was no report
of any safety problem and management had not reported that the
roof fall was in fact a reportable fall pursuant to MSHA's Part 50

1790

regulations (Tr. 143). He confirmed that he does not always go
to an area first to check it out before issuing a section 103(k)
order. He did not do so in this case because "we wanted to
investigate the area before further work was done" (Tr. 144).
Mr. May confirmed that within a half hour or more after he
and Mr. Workman reached the site of the fall, "a good bit of
work" was done so that the area could be immediately mined
through. He also confirmed that upon reaching the scene, the
roof had not as yet been adequately supported enough to mine
through (Tr. 146).
Roger D. Vandergrift, general laborer, testified that he
worked the midnight shift which ended at s:oo a.m., on March 18,
1991, but he did not hear any reports of any roof falls until he
returned to work on the midnight shift on March 19. He arrived
at work at 10:30 p.m. that evening and served as the miners•
walkaround representative accompanying Inspectors Workman and
May. He confirmed that Mr. Workman interviewed three miners who
were working at the time of the roof fall trying to find out what
had occurred. Referring to ,.hi~ notes which he made during the
interviews (exhibit R-5), Mr. Vandergrift indicated that one of
the miners told Mr. Workman that the top was "dripping and
working a little bit most of the shift," and that after the roof
fell roof bolts were observed in the pan line (Tr. 149-152).
Mr. Vandergrift stated that a second miner told Mr. Workman
that he wasn't sure how high the fall was and did not go under it
to look, and that the third miner, mechanic Robbie Robinson,
called out and reported the fall to Joe Verges, the communication
man. Foreman Ed Lane had instructed Mr. Robinson to report the
fall (Tr. 153). Mr. Workman also spoke with management personnel
about the fall, but superintendent Wes Hoag was the only
individual to say anything about the fall. Mr. Workman then
informed shift foreman Jim Keener that he was issuing a section
103(k) order and that there was not to be any work done until he
arrived" Mr. Workman stated that he was issuing the order "for
the safety of the miners" (Tr. 154-155).
Mro Vandergrift believed that an investigation was justified
after Mro Workman interviewed the miners because the fall
occurred above the anchorage point and "it had to be checked to
find out what happen" (Tr. 155). A fall above the anchorage is a
reportable fall pursuant to the roof control plan, and "You have
no support to hold the top" (Tr. 155).
Mro Vandergrift confirmed that he travelled to the fall site
with the inspectors after Mr. Workman issued his verbal order and
he described what he observed. He stated that the area had not
been mined through and that the only work which had been done was
to run the pan line and clean out the rock. Mr. Workman and
company personnel then discussed what was needed to correct the

1791

fall and to help work their way out of the fall area, including
work to support the brow with crossbars and boards (Tr. 157).
On cross-examination, Mr. Vandergrift confirmed that
Mr. Workman did not tell him that the roof fall was an urgent
matter, but that he did issue the order for the safety of the
miners who were going to be in the fall area. Mr. Vandergrift
agreed that based on the miner interviews conducted by
Mr. Workman, the order was justified (Tr. 160). He confirmed
that Mr. Hoag had stated that "not much work had been done since
the midnight shift on March 18 11 (Tr. 164). Mr. Vandergrift
stated that the additional brow supports were significant in
allowing mining to continue and to prevent the fall from
continuing outby (Tr. 165).
Respondent's Testimony and Evidence
Daniel Conaway, safety and health manager, and former
afternoon shift foreman, stated that he first learned of the roof
fall at 4:15 p.m., on March 18, 1991, but that superintendent
Wesley Hoag informed him at 10:00 a.m. that morning that "we had
some bad conditions on the B-12.headgate". Mr. Hoag also
informed him that the fall was not reportable but that he would
send some people in to evaluate the situation and report back to
him. During the shift change, general superintendent John Metz
informed Mr. Coneway that "conditions had deteriorated on the
B-12 face and that I should report· to MSHA that we have had a
fall" (Tr. 169). Prior to this time, Mr. Coneway knew that "we
had some bad top conditions", but he did no know the extent of
the fall. As soon as he received this information, Mr. Coneway
informed MSHA Inspectors Workman, May, and state inspector Albert
Lacara that he had received conflicting information about the
fall, and that he was first informed in the morning about "some
had top"u but was then notified "that we do have a reportable
fa11uu. Mro Coneway stated that he had no knowledge of any of the
details of the fallu but informed the inspectors that "for the
sake of argumentu Ium reporting to you that we have a fa11n
(Tr 172) •
o

Mr. Coneway stated that after informing the inspectors of
the fallu Mr. Workman asked him to let him know when he found out
more of the details, and state inspector Lacara stated that he
would inspect the area and asked Mr. Workman if he wished to be
called. Mr. Workman stated that he did not. Mr. Coneway then
informed Mr. Workman that "we're going in and look at it", and
Mr. Conaway stated that his intent was to learn the details of
the fall and to make measurements so that he could submit the
information on an MSHA Form 70001. Mr. Conaway confirmed that
there was a question in his mind as to whether or not the fall
was reportable "because I had not seen it or no one in the safety
department had seen it", but that "for the sake of argument, I

1792

wanted to report it" (Tr. 173). Mr. Conoway explained the work
that is generally done to take care of a roof fall (Tr. 174-175).
Mr. Conoway stated that he returned to the mine at
approximately 12:30 a.m., March 19, and Mr. Workman informed him
that he had conducted an investigation of the fall with some of
the people who were there and determined that it had occurred at
7:30 or 8:00 a.m., the previous morning and that he had issued a
section 103(k) order (Tr. 176). Mr. Coneway stated that he was
concerned that the order was issued because "you're just setting
there basically letting the conditions worsen and not taking any
corrective measures" (Tr. 178). When he and the inspectors
reached the longwall face, Mr. Coneway and the group observed the
top from under supported roof, and Mr. Conaway believed that
sufficient cribs had been set at the headgate entry where the
fall had occurred. He also indicated that the fall was somewhere
in the neighborhood of twenty feet above the mine floor, which
made it "seven, maybe eight feet from the roof". He further
confirmed that the fall was "from rib to rib", and that some
shields and the pontoons were covered with "quite a bit of loose
rock and material". No one WPS. voicing any safety concerns about
the cleanup work, and Mr Workman made some recommendations to
support the brow and reposition some cribs, and this was done.
Mr. Conaway believed that the place was adequately supported
without the additional work which was done, but he could not
state that the additional work did not enhance safety (Tr. 181).
Mr. Conoway stated that the operator had never been cited
for not reporting a longwall roof fall, and that if the roof is
broken above the bolts, it is reported. He confirmed that
Mr. Workman's order was the first time the mine had received a
section 103{k) order for a roof fall, and that on prior occasions
inspectors have asked to review the operator's report of a fall,
and that depending on the location of the fallv they would not go
to the fall area (Tr. 182).
On cross-examination, Mr. Coneway confirmed that he first
learned of "bad top" at 9:30 or 10:00 a.m, March ··18, 1991, and
that he spoke with Mr. Metz at 4:00 p.m. He stated that he did
not know why it took six hours to determine the extent of the
fall v and he explained that 11 part of the problem was to make sure
the conditions were such that people could work, that we had a
plan of attack developed" (Tr. 184). He confirmed that
telephones are located in the underground section, and when asked
how difficult it would be for someone underground to determine
the extent of the fall, he stated "if they were there, it would
not be that difficult" (Tr. 185). He confirmed that he did not
go underground at 4:00 p.m., on March 18, but that he did go to
the fall area with the inspectors after 11:00 p.m. {Tr. 186).
Mr. Coneway stated that he informed the inspectors at
4:00 p.m., March 18, that "I do not have any facts, but for the

1793

sake of argument, I'm telling you it's a reportable roof fall"
(Tr. 187). He confirmed that he did not ask the inspectors to go
to the section, that he did not definitely tell them "there is a
reportable falln, and that he did not formally report it under
section 50.10 of MSHA's regulations (Tr. 187). However, by
reporting it and stating "for the sake of argument", he believed
that he was in technical compliance with the law (Tr. 188).
Mr. Coneway stated that he did not exactly know what
measures were being taken during the period after the fall, and
that he could "just speculate". He explained that the cleaning
up of the fallen rocks and debris was a slow process, c.~1d he
confirmed that he never informed Inspectors Workman or May at
4: 00 p.m., about any corrective work that was being donn.
{Tr. 190). Mr Conaway stated that "sometimes the roof begins to
drip or work or rip down one side; conditions deteriorate rather
slowly. However, there are other times when it drops to the
roots" (Tr. 191).
Ernest L. Weaver, longwall supervisor, confirmed that he was
the supervisor on the B-12 longwall.section on March 18, 1991, on
the 8:00 a.m. to 4:00 p.m. day shift. He stated that when he
arrived on the section that morning the midnight shift foreman
advised him that "the top on the headgate was getting worse", and
that when they went to look, they observed that the top was
deteriorating and that "parts of the roof bolts were showing
where rock had fell out" (Tr. 200). Mr. Weaver then informed his
crew to set additional timbers and cribs if needed to insure
their safety to and from the face. Mr. Weaver identified certain
"call-out sheets" (exhibits c-1 though C-3), reflecting some of
the work done with respect to the roof fall. One of the reports
was his call-out which reflected that "we tried to advance the
headgate as many times as we could possible, but due to the rock
and the bad top conditionsp we weren't able to advance like we
wantedto 10 (Tr. 204).
Mro Weaver confirmed that after the call-outs, production
stopped, and the section was idled. He explained the ensuing
work to address the fall conditions (Tr. 204-205). He confirmed
that during the attempts to advance and drop the roof support
shieldsf Dlthe top deteriorated to the point where it fell in nn
and as attempts were made to move the shields forward, more roof
materials were falling between the shields. When asked if he saw
any hazards associated with not doing anything, he responded "the
rule of thumb is you do not let a longwall set in bad top"
(Tr. 206).
On cross-examination, Mr. Weaver confirmed that during the
time measures were taken to clean out the fall area, the brow of
the fall was not supported with bars or boards. He also
confirmed that he did not inform any MSHA personnel of the
measures being taken to address the fall. He stated that he

1794

called outside at noon during his shift on March 18, and told Pat
Zuchowski that "it was a reportable fall" (Tr. 207). Mr. Weaver
confirmed that he was not present with the inspectors when the
brow was supported, and that the shields in the fall area were
never up under supported roof during his shift (Tr. 208).
Mr. Weaver further explained as follows at (Tr. 209):
Now, Ed Lane encountered a bad top during this shift,
and by us going in there and trying to advance it, we
more or less, in a sense, made it worse. But you had
to make it worse in order to make it better, if you can
understand what I mean.
simply by loading the shields up and down, that makes
it worse, but you have to do that to try to advance
them forward. And if you have a lot of loose material
up above you, naturally, when you keep doing this, it's
going to fall. And that is what happened.
It finally
did all fall in.
Randolph K. Ice, accident prevention officer, stated that he
worked the midnight shift of March 18, 1991, which ended at
8:00 a.m. that morning, and that he had learned nothing about any
roof fall on that shift by the time he left the mine at 9:00 or
9:30 a.m. He next returned to the mine at 10:45 p.m. that same
evening in preparation for going to work on the midnight shift of
March 19. Upon arrival at his office he learned that Inspector
Workman had issued a section 103(k) order. He then proceeded to
the longwall office and found Mr. Workman interviewing a miner
who worked on the midnight shift, and Mr. Workman confirmed to
him that he had issued the order and was conducting an
investigation. Mr. Workman informed him that he could stay in
the room during the interviews, but that it was his investigationv and that miners would have to stay outside as long as he
needed them (Tro 214-215)0 Mro Ice did not believe the order was
justified, and it was his opinion that Mro Workman issued
because "he was mad, very upset". Mr. Ice further stated that he
assumed that someone had called Mr. Workman and f.iled a
complaint.
Contestant's Arguments
The contestant argues that it is undisputed that the roof
fall in question was reported to the MSHA inspectors at the end
of the day shift at approximately 4:00 p.m., on March 18, 1991"
However, the inspectors chose not to view the location of the
fall, and issued the section 103(k) order at 11:50 p.m., that
same evening without the benefit of first viewing or inspecting
the fall location. Contestant maintains that the order forced it
to discontinue work to alleviate the dangers associated with the
roof fall and that it was not necessary to insure the safety of
the miners, and in fact did not promote the safety of the miners.

1795

Under these circumstances, contestant concludes that the issuance
of the order was unreasonable and an abuse of the inpsectors'
discretion, and that it should be vacated.
The contestant concedes that it would be appropriate to
close down a section of the mine by issuing a section 103(k}
order for an accident investigation when it is necessary to
insure the safety of the miners. However, the contestant takes
the position that the inspectors should have understood that it
was not necessary to close the section down to insure the safety
of miners, and that based upon what inspector Workman should have
reasonably known at the time he issued the order, the order
should not have been issued. The contestant points out that at
the time the state inspector indicated that he would go to the
fall location to determine the ·existing conditions, the MSHA
inspectors declined to go with him. The state inspector issued
no violations, and management was attempting to support the roof
as necessary and to mine through the area, which everyone
concedes is the proper procedure in the circumstances. This was
a time consuming process, and the contestant's efforts continued
throughout the day on March 18,....
The contestant asserts that upon his return to the mine on
the evening of March 18, Inspector Workman did not speak with the
state inspector, and spoke to one who was really knowledgeable
about the fall conditions, and there is no evidence that the
three miners who he interviewed considered the conditions in the
fall area particularly dangerous. Contestant further points out
that Inspector Workman testified that he saw no urgency with
regard to the roof and indicated that it had been that way for 14
hours and that "a few more hours wouldn't hurt".
Yet, he still
issued the order without first going to the fall location to
observe the conditions, and that by doing so, the order resulted
an increaser rather than a decrease, of any danger resulting
::rem the fall
o

The contestant further points out that even after he issued
the order, Mr. Workman waited several hours before going to the
fall locationo Contestant suggests that the obvious inference
from this is that the inspectors knew there were no dangerous
conditions at the fall location, and that any irritation by the
inspectors because they were not notified earlier about the fall
does not justify the issuance of the order.
MSHAus Arguments
MSHA asserts that the inspectors were first informed of bad
top or a possible reportable roof fall at the end of the day
shift on March 18, at approximately 4:15 p.m. The inspectors
informed management officials that they would be at the mine for
another hour, and invited them to inform them if further details
were known or if the fall was a reportable fall pursuant to

1796

MSHA's reporting requirements. Since no further reports were
forthcoming, the inspectors left the mine, but returned later
that evening after Mr. Workman received an anonymous phone call
informing him of a reportable fall. After interviewing three
miners who had knowledge of the fall, Inspector Workman verbally
issued the section 103(k) order and subsequently put it in
writing, and it was co-signed by Inspector May who concurred in
its issuance. The inspectors subsequently went to the location
of the fall to conduct an investigation.
MSHA agrees that the issue presented in this case is whether
or not the inspectors abused their discretion and acted
unreasonably in issuing the order. Rochester and Pittsburgh Coal
company, 11 FMSHRC 2159 (November 1989). MSHA's position is that
in determining whether or not the inspector acted reasonably, the
only relevant fact is the knowledge available to him when he
decided to issue the order, and not what he subsequently learned
when he went underground to actually view and inspect the
location of the fall.
In support of this argument, MSHA cites a
decision by former Commission Judge Virgil Vail in a compensation
proceeding resulting from the issuance of a section 103(k) order.
Homestake Mining Company, 4 FMSHRC 1829 (October 1982). In that
case, in upholding the order, Judge Vail stated in part as
follows at 11 FMSHRC 1839-1840:
A reasonable assessment of the facts known by Homestake
at 6:30 a.m. prompted management to withdraw the miners
from the Ross shaft that morning.
Further, as late as
10:00 a.m. when the inspectors arrived, Homestake
management had not made a positive determination as to
the cause of the co and smell of wood smoke in the
shaft.
Based on these facts, it is reasonable for the
inspectors to believe there were grounds to issue the
103(k) order for the health and safety of the minerso
If subsequent investigation revealed that the condition
causing the co and smoke in the shaft had abated, this
would not make the original decision wrong.

*

*

*

*

*

i~
clear to me that section 103(k) of the Act
clearly authorized the inspectors to issue the order of
withdrawal on June 21, 19790 The plain language of
this provision of the Act and related regulations
authorizes representatives of the Secretary to issue
such orders as they deem necessary to protect the
health and safety of the miners. As the conditions
existed at the time of the inspectors arrival at the
mine, a prudent reading of the potential perils
warranted the action taken in issuing the order and
conducting the subsequent inspection of the affected
area. Until the inspectors could be assured there was

1797

*

no further danger to the miners from a fire or co, the
issuance of the 103(k) order was valid and proper.
MSHA asserts that the situation presented on March 18,
indicated that a roof fall occurred in the morning, or as late as
the afternoon on that day, and that there was confusion among
mine management as to what was going on. Given the variety of
the reports communicated to the inspectors, including the lack of
any definitive information from management regarding the fall,
and the miscommunication as to whether or not management was
going to investigate the fall after 4:00 p.m. when it was
reported to the inspectors, MSHA concludes that it is difficult
to say what the inspectors should have done at that time.
However, after receiving the anonymous call and returning to the
mine, the inspector spoke to miners who were working on the
section when the fall occurred and a supervisor, and he learned
that roof bolts were down. The inspector also knew that the fall
had occurred 16 hours earlier, and except for the anonymous call,
no one told him anything about the fall.
In these circumstances,
MSHA concludes that it was natural for the inspector to be
suspicious, and at that point i:ntime, he issued the order and
went underground to the fall location. Simply because mine
management believes that the inspector should have done something
else and disagrees with his decision to issue the order does not
support any conclusion that the inspector abused his discretion.
Findings and Conclusions
Section 103(k) of the Mine Act authorizes a mine inspector,
in the event of an accident which occurs in a coal or other mine,
to 11 issue such orders as he deems appropriate to insure the
safety of any persons" in the mine. MSHA's regulations at
30 CoF.Ro Part 50 provides several definitions of an "accident".
'~he relevant def ini ti on for purposes of this case is the
found
section 50.2{h) (8)v which defines an accident
unplanned roof fall at or above the anchorage zone in
workings where roof bolts are in use; or, an unplanned
roof or rib fall in active workings that impairs .ventilation or
impedes passage~.
Section 103(k) orders are typically issued by MSHA
_nspectors to secure the scenes of accidents, to insure the
continued safety of mine personnel, to preserve evidence, and to
facilitate the investigation of accidents. See: Miller Mining
company Co., Inc., 4 FMSHRC 1509 (August 1982), aff'd at
MSHC 1017 (9th Cir. 1983); Itmann Coal Company, 1 FMSHRC 1573
(October 1979) ; Harman Mining Corporation, 3 FMSHRC 45 (January
1981); Lancashire Coal Company, 12 FMSHRC 272 (February 1990;
Homestake Mining Company, Supra.
section 103(k) authorizes an inspector to issue such orders
as he deems appropriate to insure the safety of miners. Thus,

1798

the issuance of such an order by an inspector is discretionary.
If an inspector believes that an operator has the situation well
in hand, and that the safety of miners is insured, he need not
issue any orders at all. On the other hand, if the inspector is
in doubt, or has insufficient information to enable him to make a
judgment as to the severity of the situation, or the hazard
exposure to miners, I believe he must be afforded the latitude to
act according to the wisdom of his discretion and experience,
particularly in accident situations involving an unplanned roof
fall.
In my view, in order to successfully respond to such
situations, an inspector must be able to do what he believes is
appropriate according the to the facts as they are known to him,
or as they appear to exist, at the time he makes the decision to
act. Viewed in this context, I believe that the issue in this
case is whether the facts and circumstances known to Inspector
Workman at the time he decided to act warranted the issuance of
the section 103(k) order. If the order was routinely issued,
without regard to the safety or health or miners, then I believe
it should be vacated. If, on the other hand, it was issued in
order to insure the safety or health of the miners, it should be
affirmed.
In this case, Inspector Workman testified that he issued the
order out of consideration for the health and safety of the
miners working in the location of the fall. He also testified
that he decided to issue the order after he learned more about
the fall through interviews with three miners who gave him
information about the roof fall and roof conditions. Mr. Workman
also took into consideration the length of time the roof
conditions had existed, the lack of communication and more
detailed information from mine management in properly and
promptly reporting the fall, and his lack of any specific
knowledge as to the existence of potentially hazardous conditions
which could have resulted injuries to miners (Tr. 90-91)
0

Inspector Mayv who arrived at the mine after Mro Workman had
issued the oral order, countersigned the order when it was
reduced to writing and he expressed agreement wi~h the order and
Mr" Workman's reason for issuing it. Mr. May confirmed that
Mro Workman told him that he issued the order out of concern for
the health and safety of the miners, and that he had been
informed that the roof had fallen above the roof bolt anchorage
and that there was a problem with the passageway to the longwall
faceo Mr. May believed the order was properly issued in order to
facilitate the investigation, and to insure that proper recovery
procedures were being followed to preclude any injuries.
The miner 1 s walkaround representative, Rodger Vandergrift,
testified that one of the miners who Mr. Workman interviewed
shortly before he issued the order told Mr. Workman that the roof
had been "dripping and working" most of the shift, and that after
the roof fell, roof bolts were observed in the longwall pan line.

1799

Mr. Vandergrift indicated that when there is a roof fall above
the roof bolt anchorage there is no support to hold the top, and
he believed that the order and investigation which followed
Mr. Workman's interviews with the miners was justified in order
to check out the situation. Mr. Vandergrift also indicated that
Mr. Workman informed shift foreman Keener that he was issuing the
order for the safety of the miners. Mr. Keener was not called to
testify, and Mr. Vandergrift's testimony, which I find credible,
stands unrebutted.
Foreman Coneway, who admitted that he knew about the bad top
conditions early on Monday morning, March 18, but who disclaimed
any knowledge of any of the details, nonetheless indicated that
the roof conditions were continually deteriorating as the day
went on before the inspectors return to the mine. He also
indicated that a "working or dripping" roof may sometimes
deteriorate slowly, but at other times it may "drop to the
roots". Under the circumstances, it would appear that all of
these potential hazards were present prior to the issuance of the
verbal order by Inspector Workman, and the fact that the order
may have resulted in tp.e cessation· of further work to mine
through the area is irrelevant. Indeed, the existence of those
hazards lends support to the action taken by the inspector.
I am not persuaded by the contestant's arguments that the
work stoppage which resulted from·Mr. Workman's verbal order at
11:50 p.m. increased the level of potential hazards to miners.
The work to clear the fall was apparently taking place throughout
the day shift of March 18, after the fall was initially reported
out, and it apparently continued during part of the evening
before the inspectors returned to the mine. Longwall supervisor
Weaver testified that difficulties were encountered in advancing
through the fall area because of the bad top conditions, and that
during the attempts to advance and drop the shields, roof
materials were falling between the shields, and that the top
deteriorated further to the point where it fell in.
I take note of the fact that Mr. Coneway, who initially
reported the fall to the inspectors at the end of the March 18,
day shiftv could only speculate as to the measures being taken to
address the fall. He, like the inspectors, did not go to the
fall location after he reported it to them. I quite frankly have
difficulty comprehending why the inspectors, a shift foreman,
union walkaround representative, and company safety representatives, all of whom apparently had some knowledge at the end of
the shift that a roof fall occurred, chose not to go to the fall
area to investigate. Although I understand the lack of knowledge
as to whether or not the fall was "reportable" under MSHA's
regulatory definition of a "reportable accident", as I stated
during the course of the hearing, a roof fall, technically
"reportable" or not, can injure and kill people. Under the
circumstances, I believe that the inspectors, and mine management

1800

as well, had an obligation to timely follow up on the fall and to
communicate with each other to ascertain the extent of the fall
and the necessary corrective action. Since they failed to do so,
I am not persuaded by their respective "finger pointing" and
attempts to lay blame.
The contestant's assertions that the inspectors should have
reasonably known that closing down the section by a section
103(k) order was not necessary to protect the health and safety
of miners, and in fact exacerbated the situation because it
delayed the mining through of the area are rejected. While it is
true that Inspector Workman did not immediately go to the fall
area upon his return to the mine on Monday evening before he
issued his verbal order, I find nothing in section l03(k), or in
MSHA's policy, that requires him to do so. While I agree that a
view of the scene before the issuance of the order may have
enabled the inspector to make a more precise and informed
judgement with respect to the prevailing conditions, the fact
that he relied on the information supplied by the three miners
does not warrant a conclusion that the order was improperly
issued. Further, I believe that mine management had more than
ample time and opportunity to communicate with the inspectors and
to inform them of the measures being taken to address the fall.
If they had promptly done so, the order may not have issued.
Since management failed to communicate further with the
inspectors after the 4:00 p.m. informal and rather equivocal
notice by shift foreman Conaway, it is in no position to
complain.
After careful consideration of all of the testimony and
evidence in this case, I conclude and find that the facts and
circumstances concerning the roof fall, as known to the inspector
at the time he verbally issued the order, warranted the action
which he took and reasonably support his judgment that the order
was necessary to insure the health and safety of the miners until
he was able to go to the fall location and complete his investigation of the roof fall incident. I further conclude and find
that the inspector acted properly and that the issuance of the
order was not an unreasonable or arbitrary abuse of his authority
and discretiono Accordingly, the contested order IS AFFIRMED.
ORDER
In view of the foregoing findings and conclusions, the
contested section 103(k) Order No. 3116688, issued on March 18,
199lv IS AFFIRMED, and the Notice of Contest filed by the
contestant IS DENIED and DISMISSED.

4Kt;~
Administrative Law Judge

1801

Distribution:
Glenn M. Loos, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203
(Certified Mail)
David M. Cohen, Esq., American Electric Power, Fuel Supply
Department, P.O. Box 7000, Lancaster, OH 43130-0700 (Certified
Mail)
/ml

1802

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

NOV 4 1991

DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION on behalf of
JOSEPH CULP,
Complainant

Docket No. WEST 91-160-D

.

v.

Dutch Creek Mine

MID-CONTINENT RESOURCES, INC.
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Cetti

This is a proceeding ba.sed on a complaint of discrimination
filed under Section 105(c) of the Federal Mine Safety and Health
Act of 1977 (Mine Act}.
The complaint was ba.sed upon Complainant's employment termination resulting from Complainant's refusal to work underground
at the Dutch Creek Mine because of his fear of a prolonged methane fire in the 211 Longwall tailgate return.
In an earlier litigated proceeding before meu the Complainantff Joseph Co Culpv was temporarily reinstated to his former
position by my order of December 18, 1990. Subsequently, on
January 25, 1991, substantially all miners including Mr. Culp
were laid off at the Dutch Creek Mine. Mr. Culp accepted new
employment for a different mining company in Western Pennsylvania
on August 26v 199lu and no longer seeks permanent reinstatement
at Mid-Continent Resources, Inc. (Mid-Continent) but does claim
back pay from the time he was suspended without pay allegedly in
violation of Section 105(c) on August 23, 1990, to the time he
was temporarily reinstated pursuant to my order at the Dutch
Creek Mine on December 19, 1990. Mr. Culp's monthly salary was
$3,4680 During the time period of his discharge from late August
1990 until mid-December 1990, Mr. Culp received state employment
benefits amounting to $2,522.
The total amount of back pay
claimed by Mr. Culp in this proceeding was $11,332.92 plus the
legal rate of interest on such back pay.

1803

Mid-Continent asserts, in part, the following:
1. That Complainant's actions of August 22 and 23, 1990,
constitute a voluntary termination of his employment status with
Mid-Continent and that his work refusal was not made in good
faith.
2. That the work refusal justification of Complainant was
not reasonably predicated. None of the nearly 100 Mid-Continent
employees active during the 211 longwall gob fire nor any MSHA
inspectors or employees refused to enter the Dutch Creek Mine and
perform tasks assigned to them during the course of the 211 longwall gob fire.
3. That given the occupational duties of Complainant and
the tasks assigned and performed by him during the initial stages
of the 211 longwall gob fire, outby pumping duties several hundred feet removed from the actual fire site, the work refusal of
Complainant was not reasonably predicated.
4. That Complainant's concerns, if any and if in fact held
in good faith, were no-t adequately communicated to invoke protection of the Federal Mine Safety and Health Act of 1977.
5. That the conditions surrounding the methane fire in the
211 longwall gob did not constitute what could be genuinely and
in good faith regarded as a hazardous conqition, p~rticularly to
persons engaged in outby occupations which placed them a significant distance from the fire location and the firefighting activities. Every underground activity conducted by Mid-Continent
from and after August 16, 1990, and during the entire course of
the 211 longwall gob fire, including the duties assigned Complainant, was specifically approved by MSHA and subject to its
direct supervision and controlo
6
That it is legally impossible for an unsafe activity to
be conducted at a mine while under the control of MSHA such as
this mine was by virtue of Section 103(k) and 107Ca) orders and
the massive physical presence of MSHA official inspectors and
technicianso
The Secretary on behalf of the Complainant states that preparation for trial has revealed that since the time of my reinstatement order, Mid-Continent has ceased operation and is preparing to file bankruptcy, Mid-Continent is unable to pay the
amounts due to Mr. Culp as calculated by the Secretary, and MidContinent has a very large secured debt that will leave nothing
for unsecured creditors.

1804

Accordingly, Complainant and Respondent have agreed that the
Secretary will reduce its request for monetary relief to the
amount of $2,000.00, contingent on Mid-Continent paying that sum
prior to a final order in this case.
Under the facts and circumstances in this case, the Secretary upon payment of the $2,000.00
to Complainant withdraws its request for a civil penalty.
After careful review and consideration of the entire record
including the arguments and submissions in support of the proposed settlement of this case, I conclude and find that the proposed settlement disposition is reasonable, appropriate and in
the public interest.
I am advised by the Secretary that the approved amount of $2,000.00 has been paid to the Complainant. Accordingly, the settlement is APPROVED and Respondent having
paid it, this proceeding is DISMISSED.

t F. Cetti
nistrative Law Judge

Distribution:
Margaret Ao Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denverr CO 80294
(Certified Mail)
Edward Mulhall, Esqov DELANEY & BALCOMBv Drawer 790; Glenwood
Springsr CO 81602
(Certified Mail)
Mro Joseph Culpu
(Certified Mail)

RD #lu Box 195-Tv Clarksville, PA 15322

sh

1805

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

NOV 5 1991
CIVIL PENALTY PROCEEDINGS

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

Docket No. PENN 91-160
A.C. No. 36-01892-03515

v.
Porter Tunnel
KOCHER COAL COMPANY,
Respondent

Docket No. PENN 91-1349
A.C. No. 36-01891-03505
"'.,.':

Kocher Breaker
Docket No. PENN 91-1032
A.C. No. 36-03304-03501
Lincoln Stripping Mine
DECISION APPROVING SE'rl'LEMENT

Appearances:

Joseph T. Crawford, Esq., Anthony G. O'Malley,
Jr., Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania,
for the Petitioner;
Allen Shaffer, Esq., Millersburg, Pennsylvania,
and Mr. Steven D. Shrawder, Valley View,
Pennsylvania, for the Respondent.

Before~

Judge Melick

These cases are before me upon petitions for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). Petitioner's initial motions to
approve settlement agreements were denied. At hearings, amended
motions were filed and supportive evidence submitted. In
particular with respect to Citation No. 2934266, charging
Respondent with failing to notify the Secretary that it had
reopened a mine, the proposed penalty in settlement of $20 can
now be approved. There is a reasonable question as to whether,
in its reclamation work, Respondent was engaged in activity
subject to MSHA inspection authority.
A reduction in penalty from $1221.00 to $665.50 has now been
proposed with respect to the remaining citations. I have

1806

considered the representations and documentation submitted in
these cases, and I conclude that the proffered settlement is
appropriate under the criteria set forth in Section llO(i) of the
Act.
WHEREFORE, the motion for approval of serlement is G~,
and it is ORDERED that Respondent pay a penal
of $685.50 Within
3 O days of this order.
/
j
f

l /
J

I

\ '

! .•. .~·

/!j---- '-'\.___
:.I:

(

~eliciJ.

Gary
/
Administrative Law Jud~e
Distribution:

/

Joseph T. Crawford, Esq., Anthony G. O'Malley, Jr., Esq., Office
of the Solicitor, U.S. Department of Labor, Room 14480 Gateway
Building, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Mr. Allen Shaffer, Esq., 129 Market Street, P.O. Box 335,
Millersburg, PA 17061 (Certified Mail)
Mr. Steven D. Shrawder, Kocher Coal-Company, P.O. Box 127,
Valley View, PA 17983 (Certified Mail)
/fb

1807

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

NOV 5 1991
APPLICATION FOR TEMPORARY
REINSTATEMENT

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

Docket No. PENN 92-15-D

v.

PITT-CD 91-11
Homer city Mine

HELEN MINING COMPANY,
Respondent

ORDER OF TEMPORARY REINSTATEMENT

Appearances:

Before:

Gretchen M. Lucken, Esq., Tana M. Adde, Esq.,
Office of the Solicitor, u. s. Department of Labor,
Arlington, Virginia, for the Secretary;
Michael Klutch, Esq., Thomas A. Smock, Esq.,
Polito & Smock, P.C., Pittsburgh, Pennsylvania,
for the Respondent.

Judge Maurer

on October 7, 1991, the Secretary of Labor (Secretary) filed
an application for an order requiring Respondent Helen Mining
Company (Helen) to reinstate Joseph A. Smith to the position
which he held immediately prior to his July 2, 1991u discharge,
or a similar position at the same rate of pay, and with the same
or equivalent duties assigned to him. The application was
supported by an affidavit of Lawrence M. Beeman, who is the
Chief, Office of Technical Compliance and Investigations, Coal
Mine Safety and Health, Mine Safety and Health Administration
(MSHA) and by a copy of the original complaint filed by Smith
with MSHA.
On October 11, 1991, Helen filed a responsive pleading,
denying that the Secretary is entitled to the requested Order of
Temporary Reinstatement and denying that it violated the Mine Act
in discharging Smith. Helen proposed to economically reinstate
Smith as of the date on which a temporary reinstatement hearing
would otherwise be held and until such time as a decision on the
merits of the discrimination complaint is subsequently rendered.
Alternatively, Helen requested a hearing on the Secretary's
application.

180 8

Smith, as is his right to do, rejected the offer of economic
reinstatement. Therefore, the requested hearing was held
pursuant to notice on October 31, 1991, in Indiana, Pennsylvania.
The relevant scope of this hearing, at this preliminary
stage of the proceedings, is limited to a determination of
whether the miner's complaint is being frivolously brought.
I
stated on the record at the hearing and will reiterate here that
I am not at this time determining the merits of Smith's
discrimination complaint, but only whether that complaint is
frivolous, as that word is commonly used.
The Secretary has produced evidence to the effect that Smith
was Chairman of the UMWA Safety Committee at the Homer City Mine
at the time of his discharge and was actively so engaged.
Furthermore, between June 18, 1991, and the first of July, he
filed three section 103(g) complaints with MSHA. MSHA
investigated those complaints and as a direct result issued
several section, 104(a) citations as well as a section 107(a)
Imminent Danger Order. Mine management was aware that it was
Smith who was filing the 103 ('g) complaints according to the
inspector who investigated them. Additionally, Smith has filed
four section 105(c) discrimination complaints against Helen in
the last 12 months, two of which are still active files that are
reportedly at the complaint stage of pleading, wherein he is also
being represented by the Secretary.
With regard to the immediate sequelae that led to smith's
discharge, the Secretary sponsored evidence that Smith was sick
with flu-like symptoms on June 30, 1991, and had taken a "sick
day". Then on Monday night, July 1, 1991, Smith went to work
intending to perform his normal job as a shearer operator on the
longwall. He testified that he still felt "sick, 11 but he thought
he could perform that function for his shift. Howeverv upon
at the mine 9 he was told that his work assignment that
night would be to vvfireboss. ua The shift supervisor informed him
that if he was still there at the start of the shift at
12:01 a.m., he would be given a direct order to "fireboss."
Smith testified that he did not feel that he was physically
up to firebossing that night because of the extensive walking
that would be required. The company attributes other motives to
Smith 1 s reluctance and apparently there has been a long-standing
dispute over whether or not the company can order a rank and file
miner who has the papers to fireboss against his will.
Smith then in rapid succession stated to his supervisor
(1) he was going home sick or taking a sick day; (2) he
would firebos.s if the shift supervisor would write out the
assignment and finally (3) he would take an "illegal day,"
intending to get a medical excuse the next day, thus converting
the unexcused absence to an unpaid sick day. There is also a
that~

1809

substantial dispute between the parties as to whether this latter
is a viable option under the union contracto
The next dayv Smith did in fact go to the hospital emergency
room and was diagnosed as having 10 gastroenteritis" and advised to
take a couple of days off by the treating physician.
However,
Smith was overtaken by events in this regard in that
Superintendent Hofrichter called him at home on July 2, 1991, to
advise that he was suspended with intent to discharge for
insubordination because he refused the firebossing assignment.
It is the respondent 0 s position that this insubordination
was the only reason for Smith 9 s dischargeo
Respondent goes on to
point out numerous prior instances of disciplinary action taken
by it against Smith for various and sundry transgressions, most,
if not all of which appear to be grounded in fact.
I note that the record contains a great deal more relevant
evidence than is recited or dealt with herein, including some
evidence that tends t~ rebut or refute portions of the
Secretary's evidenceo Howeverv at this stage of the proceedings
I do not need to weigh the evidence or make findings on the
ultimate issueso
At this time I am only required to determine if
Smith 1 s complaint was frivolously brought"

I have carefully considered the entire record of this
proceeding in that light and I conclude that Smith's complaint is
not clearly without meritv fraudulent or pretextual in nature.
Therefore, I conclude that Smith 1 s complaint is not frivolously
broughto

to ·the posrc:'..::J:r'c :::~om
~1e was discharged on or about
July 2v 1991 or "Co an equivalent position 1 at the same rate of
pay and with the same or equivalent dutieso

Distribut
Gretchen l.VL Luck:enu Esq" r Tana Mo Adde, Esq., Office of the
Solicitorv Uo So Department of Laboru 4015 Wilson Boulevard,
Arlingtonu VA 22203 (Certified Mail}
Michael Klutch, Esqo 9 Thomas A. Smock, Esq., Polito & Smock,
P.c., Four Gateway Center, Suite 400 1 Pittsburgh, PA 15222
(Certified Mail)

1810

FEDERAL MINE SAFETY ANB:» HEA.lTIHJ RlEVU:W COMMiSSBOIN
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG Pll\E
FALLS CHURCH, VIRGINIA 22041

CIVIL PENALTY PROCEEDINGS

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

Docket No. WEVA 91-178
AoC• NO.

46~01453-03946

v.
CONSOLIDATION COAL COMPANY,
Respondent

Docket No. WEVA 91-193
A.C. No. 46-01455-03821
Osage No. 3 Mine
DECISION

Appearances~

Before:

Charles M. Jackson, Esq.r Caryl Casden, Esq.u
and Tana Adde, Esq., U.S. Department of
Labor, Arlington, Virginia for Petitioner;
Walter J. Scheller, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania for
Respondent.

Judge Weisberger

These cases are before me
=:er assessment of
civil penalty filed
the
Petitioner).
Subsequent to notice, the cases were heard in Morgantown,
West Virginia on July 31, 1991.
H. Phillips, Merven
for
Knotts, Dale R. Dinning r and John "R.n '·'20X,
Petitioner.
Samuel O. Statler,
Jr.
f
testified for Respondent.
on
23, 1991, the parties
each filed proposed findings of fact and c. brief.

I.

Docket No. WEVA 9l-193v
A.
Citation No. 3308030
1.
Alleged Violation

On October 16, 1990, Respondent was engaged in the
extraction of coal in the No. 5 Butt section by a longwall mining
system. According to Respondentis roof control plan, upon
completion of mining in the No. 5 Butt section, a longwall mining
would commence in the adjacent No. 6 Butt section.
The roof

1811

control plan provides, in essence, that as the No. 5 panel is
being mined, cribs should be maintained in the headgate (neutral)
entry, which will become the tailgate entry once mining commences
in the adjacent No. 6 section.
Respondent does not contest the o?s~rvations of MSHA
Inspector George A. Phillips that, on October 16, 1990, cribs had
not been placed in an approximately 100 foot long section in the
future a longwall tailgate entry (i.e. the tailgate entry of the
No. 6 Butt section) in violation of the roof control plan.
Accordingly I find that Respondent did violate its roof control
plan, and hence did violate 30 C.F.R. § 75.220 as alleged in the
citation issued by Phillips.
2.

Significant and Substantial

Petitioner alleges that the violation herein is significant
and substantial.
For the reasons that follows I conclude that
the record fails to establish that the violation was significant
and substantial.
Phillips noted that in the area in question, at Spad 9223,
the roof was good and he was not concerned about any danger.
According to Phillips the No. 5 Butt is bolted and supported
properly.
In the same fashion, Mervin Knotts an MSHA Geologist
testified that there was no danger of a roof fall in the cited
area.
Essentially, the record does not establish that, in the
normal mining cycle of the No. 5 Butt section, there was created
any hazard of a roof fall in the cited area. However, according
to Phillips, once mining has been completed in the No. 5 Butt
section and mining has commenced in the No. 6 Butt section,
abutement pressure increases as the face advances. According to
Mervin Knotts a geologist who works in an MSHA roof control
sectionp abutement pressures have been measured 1,000 outby the
face.
According Phillips and Knotts, if the area in question is
not cribbed, assuming the continuation of the normal mining
process, a point would be reached in the No. 6 Butt section where
the advancing face would create sufficient pressure on the area
in question to cause a roof fall.
Further, according to Phillips
and Knotts, such an event is reasonably likely to occur given the
normal mining cycle of the advancing face in the No. 6 Butt
section. According to Phillips, it becomes "critical'' (Tr. 65,
83) to support the cited area, when the longwall panel approaches
within 200 feet.
Knotts testified that the face would have to be
within 25 feet of the cited area for there to be a reasonable
likelihood of a roof fall occasioned by frontal abutment
pressures.
Due to Knotts' expertise I accept his testimony.

1812

Phillips opined that should a roof fall occur, it would be
reasonably likely for miners to be seriously injured if they
would be in the area of the roof fall. Also, according to
Phillips, in the event of a mine fire, which he indicated was
always a possibility, miners might have to use the entry in
question as an emergency escapeway, should the two regular
escapeways not be passable. Phillips opined that in such an
event, miners could be seriously injured should there be a roof
fall of such a nature as to block or impede ventilation in the
entry in question.
In analyzing whether the facts herein establish whether the
violation is significant and substantial, I take note of the
recent decision of the Commission in Southern Ohio Coal Company,
13 FMSHRC 912, (1991), wherein the Commission reiterated the
elements required to establish a significant and substantial
violation as follows:
We also affirm the judge's conclusion that the
violation was of a significant and substantial nature.
A violation is p_roperly'designated as significant and
substantial "if, based on the particular facts
surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6
FMSHRC 1, 3-4 (January 1984), the Commission explained:
In order to establish that a violation
of a mandatory standard is significant and
substantial under National Gypsum the
Secretary must prove:
(1) the underlying
violation of a mandatory safety standard;
(2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to
by the violation: (3) a reasonable likelihood
that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood
that the injury in question will be of a
reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria) . the
third element of the Mathies formula "requires that the
Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which
there is an injury" (U.S. Steel Mining Co., 6 FMSHRC
1834, 1836 (August 1984)), and also that the likelihood
of injury be evaluated in terms of continued normal
mining operations (U.S. Steel Mining Co., Inc. 6 FMSHRC

1813

1573, 1574 (July 1984}; see also Halfway, Inc., 8
FMSHRC s, 12 (January 1986)." (Southern Ohio, supra at
916-917)
In the instant case the first element set forth in Mathies,
supra has been met, in that it has been established that
Respondent herein did violate a mandatory standard. Also, the
evidence establishes that the lack of the cribs in the cited area
did contribute to the hazard of a fall occurring at a future date
when the No. 6 Butt section would be developed to the point where
the face would advance close enough to the area in question to
create sufficient pressure so as to create a hazard of a roof
fall.
The key element for resolution is thus whether it has
been established that there was a reasonable likelihood that the
hazard of an unsupported roof, contributed to by the lack of
cribs in the future tail gate return entry will result in a roof
fall causing an injury (See U.S. Steel Mining Co., supra, 1836}.
Phillips indicated on cross-examination that it would take
approximately 13 months from the date the citation herein was
issued, (October 16, 1990) for-the £ace in the No. 6 Butt section
to advance to the point where the roof conditions in the cited
area would be critical. In this connection, Samuel o. Statler,
Respondent's longwall coordinator, whose responsibilities include
maintaining the longwall panel and setting up the next panel,
testified that, at the date of the hearing, 15 months subsequent
to the date of the citation was issued, the longwall face in the
No. 6 Butt section had not yet advanced to within 200 feet of the
cited area.
According to Statler, cribs to build blocks were placed in
the neutral entry of the No. 5 Butt section (the future tailgate
return entry for the No. 6 Butt section) the weekend prior to the
issuance of the citation on Tuesday, October 16. Statler
indicated that Respondent commenced to install cribs. That
weekend it was subsequently noted that there were insufficient
crib blocks to fill in the approximately 100 foot void that was
subsequently cited by Phillips on October 16. Statler testified
that, on Saturday, cribs were brought up the No. 2 entry (intake)
to the crosscut near spad 9224, in order to fill in the voido
According to Statler, it was intended to build cribs as soon as
there would be down time, which he thought was going to occur
within the next week. Statler stated specifically that he would
not have allowed the No. 5 Butt section to be mined out and
retreated beyond the area of the void in the cribbing, without
having first placed cribs in that area.
In rebuttal, Phillips testified that it would take about 6
or 7 bundles of cribs to fill the uncribbed cited area. He said
that each bundle is 11 • • • at least 4 feet by probably four feet
three, 3 1/2 feet high" (Tr. 144-145), and accordingly, the
bundles should have been seen by him on October 16, if they were

1814

in the area. He testified on cross-examination that he does not
have any image of seeing these bundles, and does not remember
having seen them.
I find Statler's testimony more persuasive, and conclude
that the testimony of Phillips on rebuttal is not sufficient to
have impeached it. Hence, based on the testimony of Statler, I
conclude that, had the void (i.e. the uncribbed area) not been
cited by Phillips, it would have been filled in with cribbing
within a week or so. Further, there was no hazard to miners when
the area was cited. Any hazard would have occurred only if the
area would have remained unsupported by cribs, at the time when
the face had approached within 200 feet as testified to by
Phillips, or 25 feet as testified to by Knotts.
It was estimated
by Phillips that it would have-taken approximately 13 months
subsequent to October 16, for the face to have reached that
point. I find, that had the area not been cited, the void would
have filled in by Respondent long before there would have been
any hazard of a roof fall due to the advancing of the face.
Accordingly, for all the.above reasons I find that it has
not been established that the violation herein was significant
and substantial.
Although Respondent was aware of the violation I find the
degree of its negligence to have been low, inasmuch as it
intended to have the situation cured as soon as it was feasible,
and long before the creation of a hazard of a roof fall.
Considering the remaining statutory factors set forth in Section
llO(i) of the Act, I find that a penalty of $100 is appropriate
for the violation found herein.
Bo

Citation Nos. 3307218, 3308021, 3308022, 3308037, and

3307804

Subsequent to th~ hearing, on October 4, 1991, Petitioner
filed a motion to approve a settlement agreement with regard to
Citation Nos. 3307218, 3308021, 3308022, 3308037,. and 3307804. A
reduction in penalty from $1,124 to $774 is proposed.
I have
considered the representations and documentation submitted in
this Motion, and I conclude that the proffered settlement is
appropriate under the criteria set forth in Section llO(i) of the
Act. Accordingly the motion for approval of settlement is
granted.

II.

Docket No. WEVA 91-178
A.

Citation No. 3314318
1.

Alleged Violation
On October 4, 1990, Dale Dinning an MSHA

1815

inspector, inspected Respondent's Humphrey No. 7 mine.
He noted
that in the 13 east main return, at 4 overcasts a ladder was
placed leaning up against the sides of the overcast, to enable a
person to climb up to the overcast, cross over, and then climb
down. None of these ladders were secured to the overcast. He
issued a citation alleging a violation of 30 C.F.R. § 75.305.
In
that "a safe means of travel across the 4 overcasts in the main
return to Kirby shaft just outby 13 East Regulator is not being
provided".
It is Petitioner's position that, in essence, there is an
"implied duty to provide safe passage" under section 75.305
supra. 1 In essence, according to Petitioner this duty is
breached where the means of conducting an examination pursuant to
section 75.305, supra, is hazardous, i.e., the hazardous
conditions of the 8 ladders in issue which were placed on each
side of the 4 overcasts in the main return. 2
I do not find
merit in Petitioner's argument for the reasons that follow.

1

In its brief the Petitioner cites 30 C.F.R. § 75.1704l(c) (2) (which requires ladders in underground mine escapeways to
be anchored securely) and 30 C.F.R. § 77.206, (which requires
that in surface mines ladders shall be anchored securely), for
the proposition that the "Mine Act recognizes that unsecured
ladders are hazardous. 11 However the issue presented herein is
not whether ladders that are unsecured are hazardous per se, but
rather whether the condition of the ladders herein violated
section 75.305 supra for which Respondent was cited. As such,
the other standards cited by Petitioner are not relevant in
disposing of the issues herein presented"
2

Respondent has not contradicted or impeached the testimony
of Dinning that at least once a week an examiner would be in the
area in question. Neither did it contradict or impeach the
testimony of John Cox a union walkaround who, when asked who is
required to cross the laddersF answered as follows~
A.

Anybody that would be walking that area. We have a
it has to be traveled at least once a week. And
any work that would be done in that areau people would
have to travel across them in order to go and do the
work. (Tr. 53)

However no evidence in the record sets out in any deta
any
facts which tend to establish that, in making an examination
pursuant to section 75.305 supra it is necessary to traverse the
overcasts in the main return.

1816

2.

Discussion
a.

Condition of the ladders

According to Joseph Frank Mlinarchik, Jr., Respondent's
safety inspector the ladders were purchased from a carpenter who
made them, and they are of substantial construction. The ladders
are 10 feet high, 24 inches wide. They were leaning against the
overcast and resting between two metal rails approximately 36
inches apart. The rails protruded horizontally from the tops of
the overcast between 6 to 8 inches.
Dinning described the hazard posed by the unsecured ladders
as follows:
Without these ladders being secured and with the
equipment you got to carry over top of them, you always
have a chance of this ladder sliding along the wall.
You're going down the other side, the ladder could kick
out on the bottom and cause you to fall." [sic]
(Tr. 29)
In the same fashion, John Cox, a walkaround who accompanied
Dinning, described the hazard as follows:
The hazard is that the person can go ahead and
lose their balance. And the ladder gives you the
sense, if the ladder's secured, if you lose your
balance you grab something secured it's going to at
least protect you from your fall or curtail you from a
free fall. [sic] (Tr. 58)
Cox also indicated that the unsecured ladders"··· may rock
back or slip when an individual would be climbing up or down the
ladders because of them being able to get hurt or an accident to
occur. ui

[ s

]

(Tr. 4 4)

Essentially, according to Dinning and Cox, the hazard posed
by the unsecured ladders is contributed to by the use of

metatarsal boots, metacarpal gloves, and various equipment worn
by a miner.
Also according to Petitioner 1 s witnesses, the lack
of hand rails on the ladders, and the fact that the area in
question is illuminated only by cap lights contribute to the
hazard.
According to Cox when he climbed the ladder at the first
overcast and reached the top it was "wobbly" (Tr.57).
He said
that in climbing down he had to swivel around, and reach out with
his leg to go around a protruding rail. He indicated that he
then had to bend down to hold on to the ladder, inasmuch as it
protruded over the top of the overcast only 6 to 8 inches. He
testified that some of the rails protruded from the overcast up

1817

to 18 inches, which would make it more difficult swivel around
from the top of the overcast to reach the ladder to climb down.
According to Dinning, the base of the ladders were not as
far away from the bottom of the overcasts, as they should have
been, and he indicated that the ladders were positioned "pretty
well straight up and down" (Tr.20). Cox testified that the
ladders were two to three feet back from the base of the
overcasts, and extended 6 to 8 inches over the top of the first 2
overcasts that were approximately 8 feet high. However, neither
Dinning nor cox measured the horizontal distance between the
bottoms of the ladders and the bottom of the overcasts. In
contrast, Mlinarchik measured that distance and indicated that
the bottom of one ladder was 4 feet in a horizontal distance from
the base of an overcasts that was 8 feet high, and that the
horizontal distance of a ladder from the bottom of a 6 foot high
overcast was 3 feet.
I accept Mlinarchik's testimony with regard
to the distance the base of the ladders extended from the
overcasts inasmuch as it was based upon actual measurement.
Dinning was asked to describe "the ground conditions
surrounding the overcast" (Tr.20), and he responded as follows:
"Well, in any underground coal mine you have uneven pavement or
bottom. You're going to have coal sluffage, rock, other debris
laying around. So, it's uneven bottom. 11 (Tr. 20-21) He did not
specifically describe the ground conditions in the areas at
issue.
Cox indicated on direct examination that, in essence, there
were old cement blocks around and under the ladders, and "there
were several large rocks at the bottom" (Tr.51). However on
cross-examination, it was elicited from Cox that the walkways
were clear, and that the blocks that he referred to on direct
examination were at the base of the overcasts, and the ladders
were not set on blocks and crushed wood.
Cox on rebuttal testified that only the edge points of the
bases of the ladders were dug in the ground, and that the ground
was not smooth. However, earlier he was asked by me whether, in
his opinion the surfaces that the ladders rested on were evenv
and he said 00 I believe so 11 (Tr.63).
Mlinarchikv indicated that he climbed all the ladders in
question. He testified that he weighs "probably 250 pounds"
(Tr.77), and that he did not detect any motion in the ladders,
and that the bases of the ladders were even, and on solid ground.
He opined that if a ladder would slide, the protruding rails
would prevent it from sliding further.
I accept Milanarchiks testimony with regard to the stability
by the ladders, as Cox indicated that the ground was even, a fact
not rebutted by Dinning. Also there is no evidence that the

1818

surface that the ladders rested on was not flat, or that it
contained objects the would upset the balance of the ladders.
Further, neither Dinning nor Cox, indicated that the ladders were
not sturdy. Nor did they indicate there were any defects in the
construction of the ladders.
b.

Applicability of Section 75.205 supra

Section 75.305 supra provides as follows:
In addition to the preshift and daily examinations
required by this subpart D, examinations for hazardous
conditions, including tests for methane, and for
compliance with the mandatory health or safety
standards, shall be made at least once each week by a
certified person designated by the operator in the
return of each split of air where it enters the main
return, on pillar falls, at seals, in the main return,
at least one entry of each intake and return aircourse
in its entity, idle workings, and, insofar as safety
considerations permit, -abandoned areas. Such weekly
examinations shall be made before any other miner
returns to the mine. The person making such
examinations and tests need not be made during any week
in which the mine is idle for the enti're week, except
that such examination shall place his initials and the
date and time at the places examined, and if any
hazardous condition is found, such condition shall be
reported to the operator promptly. Any hazardous
condition shall be corrected immediately. If such
condition creates an imminent danger, the operator
shall withdraw all persons from the area affected by
such condition to a safe area, except those persons
referred to in section 104(d) of the Act, until such
danger is abated. A record of these examinations,
testsu and actions taken shall be recorded in ink or
indelible pencil in a book approved by the secretary
kept for such purpose in an area on the surface of the
mine chosen by the mine operator to minimize the danger
of destruction by fire or other hazard, and the record
shall be open for inspection by interested persons.
A plain reading of the words of Section 75.305 supra.
reveals that there is no explicit provision for safe travel
across overcasts. Nor does Section 75.305 supra contain any
language mandating the manner in which ladders are to be used.
Such a requirement, which goes beyond the scope of the explicit
plain language of Section 75.305, may accordingly not be imposed
based only on an implied duty to provide safe access (see,
Consolidation Coal co., 2 FMSHRC 1809, 1817 (1980) (ALJ Merlin);
Riverside cement co., 1 FMSHRC 2057, 2059 (1979) (ALJ Merlin).
Further there is nothing in the legislative history of the

1819

statutory provisions of Section 303(f) of the Federal Mine Safety
and Health Act of 1977, 3 and the parallel language in the 1969
Act (Public Law 91-173) indicative of a legislative intent that
this section shall encompass a duty to provide safe access.
Hence, for all the above reasons, I conclude that it has not
been established that Respondent violated Section 75.305, supra.
B.
Citations 3307246, 3307836, 3307837, 3307251 and
3307255.

At the hearing Petitioner indicated that the parties had
reached a settlement with regard to Citation Nos. 3307246,
3307836, 3307837, 3307251 and 3307255. on October 2, 1991,
Petitioner filed a Motion to Approve a settlement agreement with
regard to this Citations and proposed a reduction and in penalty
from $1,295 to $1,059. I have considered the representations and
documentation submitted in the motion, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in section llO(i) of the Act. Therefore, the Motion to Approve
settlement is granted. _
·
·

ORDER
It is ORDERED that:
(1) Citation Nos. 3307804, and 3307836
be modified to allege a violation that is not significant and
substantial; (2) Citation No. 3314318 be vacated, and (3)
Respondent pay within 30 days of this decision $1,933 as a civil
penalty.

Avram Weisberger
Administrative Law Judge
Distribution:
Charles Mo Jacksonu Esq., Caryl Casden, Esq., Tana Adde, Esq.,
Office of the Solicitor, U. S. Department of Labor, 4015 Wilson
Boulevard, Room 516, Arlington, VA 22203 (Certified Mail)
Walter J. Scheller III, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
nb

3

section 75.305, supra repeats the language of
Section 303(f), supra

1820

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

NOV 8

22041

1991

JAMES N. BOYD,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 91-239-D
MSHA Case No. PIKE CD 91-08

TROJAN MINING COMPANY,
Respondent

Trojan Mine

ORDER OF DISMISSAL

Before:

Judge Melick

Complainant requests approval to withdraw his complaint in
the captioned case. Under the c.ircumstances herein, permission
to withdraw is granted. 29 C.F.R. § 2700.1. This pase is
therefore dismissed, and the hea. rin~ previously sc~eduled for
November 8, 1991, are accordinity J'a\celled.
j
1

0
;

/

I

1

I

l' I'

I ./ /\.;v~
I

1

:j~"f\
A

/

/Gary M~li6-k
•
Administrative L~w Judge
i

l,

i

Distribution:
J·ames N, Boyd,
(Certified Mail)

Mr.

I
P, o. Box

596, Elkhbrn City,

·

,

\ ~

\,

KY

41522

Mr. Roger L. Kirk, Mine Manager, Trojan Mining Company, Box 280,
State Route 197, Ashcamp, KY 41512 (Certified Mail)
/fb

1821

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

22041

NOV 8 1991
KEITH STURGILL,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 91-973-D
MSHA Case No. PIKE CD 91-10

SOUTH EAST COAL COMPANY,
Respondent

No. 404 Mine

ORDER OF DISMISSAL
Before:

Judge Melick

Complainant requests approval to withdraw his complaint in
the captioned case. TTnder the circumstatjces herein, permission
to withdraw is grantea.
29 C.F.R. § 270Q.ll.
This case

j

therefore dismissed.

1 /

I•

!\

1i-

I. ._ . \,'"' \ . /\ \ ,{ .;

,jI

:. !

I'\ . ,1

' ."'-' .. \. •.·
:\ ~...

t

!

Gary\ Melic~
Admihistrapive Law Judge
\
·1
I

Mr. Keith Sturgill, P.O. Box 313, Ermine KY 41815
(Certified Mail)
J. Miller, Esq.r Wyatt, Tarrant & Combs Lexington
Financial Center, 250 West Main Street, Lexington, KY 40507
(Certified Mail)

I

1822

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

22041

NOV 8 199l
DRUMMOND COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. SE 91-10-R
Citation No. 3020151; 10/4/90

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

Docket No. SE 91-11-R
Citation No. 3020153; 10/4/90
Mine I.D. 01-00821

DECISION ON REMAND

Before:

Judge Weisberger

On January 14, 1991, I issued a Decision with regard to
these consolidated cases and, with regard to Docket 91-10-R,
found inter alia that the violation cited therein was not the
result of Drummond's unwarrantable failure.
On
September 20, 1991, the Commission vacated the finding of no
unwarrantable failure, and remanded the matter for
reconsideration of the issue of Drummond's unwarrantable failure.
(Drummond Company Incorporated, 13 FMSHRC
, Docket Nos.
SE 91-10-R and SE 91-11-R, slip op., September 21, 1991). on
September 25 1991, arrangements were made by the undersigned to
convene a telephone conference call with counsel of both parties
on October 2; 1991. On October 2, 1991, the telephone conference
call was held, and the parties were given an opportunity to
submit a brief with regard to the issues raise by the
Commission's remand. Time was allowed until October 21, 1991,
for the parties to submit their briefso Each party filed its
submission on October 21? 1991, and these were received by the
Commission on October 24, 19910
In vacating the finding of no unwarrantable ,failure that I
made in my initial Decision, and remanding for reconsideration,
the Commission provided as follows:
On remand, the judge, in determining whether the
violation arose as a result of Drummond's unwarrantable
failure, should weigh the evidence in light of
Drummond's actions in the context that it had reason to
know of the accumulations, not in the context of actual
knowledge.

On remand the judge should also consider whether
Drummond's mitigation efforts were sufficient to deal
effectively with the accumulation problems given the
undisputed evidence that the belt was actually running
in contact with the accumulations and over a portion of
the metal frame where a roller was missing, and whether
the miner could have completed the necessary abatement
in an expeditious manner. He should consider these
efforts in light of his pervious findings that Drummond
lacked due diligence in inspecting for accumulations
that accumulations remained during preshift
examinations. (Drummond, supra, slip op., at 8)
In compliance with the directives of the Commission to
reconsider Drummond's actions with regard to the issue of its
unwarrantable failure, I note the Commission's finding, "··· that
Drummond knew or had reason to know of the accumulations."
(Drummond, supra, slip op., at 7). Also, I take cognizance that
in its directive to consider the sufficiency of Drummond's
mitigation efforts to deal effectively with the accumulation
problems, the Commission place'd emphasis upon ". . • the undisputed
evidence that the belt-was actually running in contact with the
accumulations and over a portion of the metal frame where a
roller was missing, •••• " (Drummond, supra at 8)
Further, the
Commission directed consideration of "whether the miner could
have completed the necessary abatement in an expeditious manner."
(Drummond 9 s supra slip op., at 8). Evidence adduced at the
hearing, summarized in my initial Decision (13 FMSHRC at 74),
established that Drummond made "some efforts to clean up the
accumulation." (13 FMSHRC 74). In this connection Capps who was
present at the time, indicated that a miner who had been assigned
by Don Clark, the evening foreman, to shovel on the beltline
started to do this work at the beginning of the shift on
October
Capps also indicated that he (Capps) was involved in
'::he accumulations, and that it took approximately 20
to completely remove them. However, I note that the
miner assigned to shovel cleaned areas under the belt, (Tr.234)
but there is no evidence that any cleaning was performed under
the
and take-up rollers.
In order to clean these area it
necessary first to shut off the belt, and remove certain
Neither of these actions had been taken prior to the
issuance
Deason of the citation at issue. Furtherv Busby
test.if
in essence, that although Clark informed him that he
1
fClark) assigned a miner to shovel in the area, Clark told him
that he 11 • • • turned him (the miner doing the shovelling) loose and
let him go off the beltline to another area.'°
(Tr. 328) Also,
Busby, who was the evening shift safety inspector and was
responsible for making daily inspections, indicated that normally
he would have had the accumulation inside the guarded area
corrected a few hours later during the owl shift (Tr. 377-378).
Hence, the evidence indicates that it is doubtful that the miner
could have completed the necessary abatement in an "expeditious

1824

manner". Also, as directed by the Commission, upon
reconsideration the mitigation efforts by Drummond are
reconsidered in light of my previous findings that"··· Drummond
lacked diligence in inspecting for accumulations and that
accumulations remained during preshift examinations". {Drummond
supra, slip op., at 8).
Therefore for all the above reasons, upon reconsideration,
and following the directives of the Commission, I conclude that
it has been established that the violation herein resulted from
Drummond's unwarrantable failure.
/

/?
.

_ff~,,

(.. __,-

Avram Weisberger
Administrative Law Judge
Distribution:
William Lawson, Esq.,. Office.of th~ Solicitor, U.S. Department of
Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 35203
(Certified Mail)
David M. smith, Esq., Maynard, Cooper, Frierson and Gale, 1901
6th Avenue North, 2400 AmSouth/Harbert Plaza, Birmingham, AL
35203-2602 (Certified Mail)
nb

1825

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

NOV 1 5 1991
CONSOLIDATION COAL COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WEVA 91-145-R
Citation No. 3315925; 1/22/91

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

v.
CONSOLIDATION COAL COMPANY,
Respondent

Arkwright No. 1 Mine
Mine ID 46-01452
CIVIL PENALTY PROCEEDING
Docket No. WEVA 91-1597
A.C. No. 46-01452-03783

. Arkwright No. 1 Mine
DECISION

Appearances:

Before:

Walter J. Scheller III, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania for
Consolidation Coal Company;
Charles M. Jackson, Esq., U.S. Department of
Laboru Office of the Solicitor, Arlington,
Virginia for U.S. Department of Labor.

Judge Weisberger
..

These cases are before me based on a petition for assessment
of civil penalty filed by the Secretary (Petitioner) alleging
violations by the operator (Respondent) of various mandatory
safety standards set forth in volume 30 of the Code of Federal
Regulations.
Pursuant to notice the cases were scheduled for a
hearing, and were subsequently heard in Morgantown, West Virginia
on October 9, 1991. At the commencement of the hearing counsel
indicated that the issues raised by Citation Nos. 3315924,
3308078, and 3307876 were resolved by a settlement that had been
agreed to by the parties.
On October 25, 1991, Petitioner filed a Motion to Approve
Settlement with regard to these citations.
In its motion,
Petitioner indicates that Respondent has agreed to pay $667, the
full amount which had been proposed by Petitioner as a penalty
for the violations alleged in these citations.
I have considered

1826

the representations set forth in Petitioner's Motion to Approve
settlement, and I conclude that the proffered settlement is
appropriate under the criteria set forth in Section llO(i) of the
Federal Mine Safety and Health Act of 1977 (the Act) •
On October 9, 1991, at .the hearing concerning Citation
No. 3315925, subsequent to the conclusion of Respondent's case,
Petitioner requested a continuance in order to respond to certain
aspects of the testimony adduced by certain of Respondent's
witness. The motion was granted, and the parties were granted
until November 6, 1991, to engage in discovery and to present
additional testimony. In its motion to approve settlement,
Petitioner indicates that a settlement has been reached between
the parties with regard to Citation No. 3315925.
In essence,
Petitioner represents that subsequent to an investigation into
the facts of the violation, the evidence is not likely to show "a
reasonable likelihood of serious injury existed if normal mining
operations had continued", and accordingly it agrees that the
facts do not set forth a conclusion that the violation cited was
significant and substantial. This agreement is consistent with
the evidence presented at the·hearing on October 9, 1991. In
addition, Petitioner 1ndicates that the degree of Respondent's
negligence is only low because of the existence of considerable
mitigating circumstances. The representations in the Motion are
consistent with the evidence presented at the hearing on
October 9.
In its motion, Petitioner indicates that the parties
proposed a reduction in penalty from $213 to $150 for this
violation.
I have considered the representations submitted in this
motion, along with the evidence adduced at the hearing on October
9, 1991 and I conclude that the proffered settlement is
appropriate under the criteria set forth in section llO(i) of the
Acto

Wherefore it is ORDERED that the motion for approval of
settlement is granted. It is further ORDERED that:
(1)
Citation No. 3315925 is modified to allege a violation that it is
not significant and substantial, and which reflects a low degree
of negligence on the part of Respondent;
(2) Respondent is to
abide by the terms and conditions agreed to by the parties, and
defined in the motion to approve settlement; (3) Respondent shall
pay a total penalty of $817 within 30 days of the date of this
decision"

.(;_-

Avram Weisberger
Administrative Law Judge

1827

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

NOV 18 1991
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 91-12
A.C. No. 29-00845-03537

v.

York Canyon Surface Mine

PITTSBURG & MIDWAY COAL
MINING COMPANY,
Respondent
DECISION
Appearances:

Ernest Burford, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
for Petitioner;
John w. Paul, Esq., Englewood, Colorado,
for Respondent.

Before:

Judge Cetti

This case is before me upon a petition for assessment of
civil penalties under Section 105(d) of the Federal Mine Safety
and Health Act of 1977 0 30 u.s.c. § 801 et-~ the "Act".
The
Secretary of Laborf on behalf of the Mine Safety and Health Administrationv (MSHA), charges the operator
the York canyon
Surface Mine with two violations of mandatory regulatory standards, 30 C.F.R. § 77.2058 and 30 C.F.R. § 71.101.
The operator filed a timely answer contesting the alleged
violationsu and the appropriateness of the proposed penalties.
Pursuant to noticeu a hearing on the merits was set before
me on September 19u l99lu along with other cases involving the
same parties and attorneys"
Stipulations
At the hearing, the parties negotiated and read into the
record the following stipulations:
1. The Pittsburg and Midway Coal Company is engaged in the
mining and selling of coal in the United States and its mining
operations affect interstate commerce.

1828

2. Pittsburg and Midway Coal Company is the owner and
operator of York Canyon surface mine, MSHA ID No. 29-00845.
3. Pittsburg and Midway Coal Company is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30
U .s.c. § 801 et .~

4.
matter.

The administrative law judge has jurisdiction in this

5. The subject citation was properly served by a duly authorized representative of the Secretary upon an agent of Respondent on the date and place stated therein and may be admitted into evidence for the purpose of establishing its issuance, and not
for the truthfulness or relevancy of any statements asserted
therein.
6. The exhibits to be offered by Respondent and the Secretary are stipulated to be authentic, but no stipulation is made
as to their relevance or truth of the matters asserted therein.
7. The proposed penalty will not affect the operator's
abilities to remain in business.
8. The operator demonstrated good faith in abating the
violations.
9. Pittsburg and Midway Coal Company is a large operator of
a coal mine with 600,000 tons of production in 1990. A certified
copy of the MSHA assessed violation history accurately reflects
the history of this mine for the two years prior to the date of
the ci ta ti on.
After entering the stipulations in the record, the parties
while off the record negotiated and reached a settlsnent of all
issues.
The parties on the record stated that upon the basis of
the new evidence received the day of the hearing, the Petitioner
agreed and moved to delete the S&S designation in Citation No.
3241483 and to reduce the proposed penalty to $80.
With respect to Citation No. 3241318, the S&S characterization of the citation had previously been removed at conference
and the parties agreed to reduce the penalty to $317.25.
After careful review and consideration of the pleadings,
arguments, and submissions in support of the proposed settlement

1829

of this case, I conclude and find that the proposed settlement
disposition is reasonable, appropriate, and in the public interest. Accordingly, the settlement agreement is approved.
ORDER

1. Citation Nos. 3241483 and 3241318 are modified to allege
violations that are not significant and substantial and, as so
modified both citations are AFFIRMED.
2.
Respondent SHALL PAY TO MSHA a civil penalty of
$397.25 within thirty C30) days of this decision.

Aug st F. Cetti
Administrative Law Judge

Distribution:
Michael Ho Olverau Esq.p Office of the Solicitorv U.So Department
of Laboru 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
John W. Paul, Esq., PITTSBURG & MIDWAY COAL MINING COMPANY, 6400
South Fiddler's Green Circle, Englewood, CO 80111-4991
(Certified Mail)
Mro Robert Butero, International Health and Safety Representative
for UMWA District 13, 228 Lea Street, Trinidad, CO 81082
(Certified Mail)

sh

1830

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

NOV 1 8 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 91-113-M
A.C. No. 05-00516-05545

v.
A SA RCO,

Black Cloud Mine
Leadville Unit

INCORPORATED,
Respondent
DECISION

Appearances:

Robert J. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Earl K. Madsen, Esq., BRADLEY, CAMPBELL, CARNEY &
MADSEN, Golden, Colorado,
for Respondent.

Before:

Judge Lasher

In this proceeding the Secretary of Labor ( MSHA) seeks
assessment of penalties for four violations (described in four
Citations) pursuant to Section llO(a) of the Federal Mine Safety
and Heal th Act of 1977 u 30 US.C. § 820 Ca) (1977).
Upon commencement of hearing in Leadville, Colorado, on
October 22, 1991, the parties concluded settlement of the entire
matter calling for modification and reduction of penalty as to
two of the Citations and payment in full of MSHA's proposed penalties for the remaining two Citations. The settlement was proposed on the record at the hearing and my bench decision approving such appears in the transcript and is here AFFIRMED. The
terms of the agreed resolution (including the two modifications)
and my assessment of penalties appear both on the record and in
the Order effectuating the settlement which follows:
ORDER
1. Citations numbered 2643174 and 2643176 are MODIFIED
to change paragraph 10 B thereof pertaining to "Gravity" from
"Fatal" to "Lost Workdays or Restricted Duty," and are otherwise
AFFIRMED.

1831

2.

Respondent, if it has not previously done so, SHALL

PAY to the Secretary of Labor within 40 days from the date of
this decision the total sum of $270.00 as and for the civil penal ties here assessed as follows:
$115.00 each for Citations numbered 2643174 and 2643176 and $20.00 each for Citations numbered
3450558 and 3452313.

~~:.~,-C ·c:7'- fr,.<!'&:::/' ,,,!f.
Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Robert Ao Murphyv Esq.v Office of the Solicitoru U.S. Department of Laborv 1585 Federal Office Buildingu 1961 Stout Streetv
Denveru CO 80294
(Certified Mail)
Earl K. Madsen, Esq., BRADLEY, CAMPBELL, CARNEY & MADSEN, 1717
Washington Avenueu Golden, CO 80401-1994 (Certified Mail}
Mr. George Zugelu ASARCO, INC.v P.O. Box 936, Leadville 8 CO 80461
(Certified Mail)

ek

1832

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

NOV J 8 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 91-230-M
A.C. No. 05-01780-05503

v.
September Morn
MENDISCO MINING,
Respondent
DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner.

Before:

Judge Lasher

This matter arises upon the filing of a proposal for penalty
by the Petitioner (MSHA) on April 15, 1991, seeking assessment of

civil penalties ($200 each) against Respondent for four violations described in four Citations which were issued pursuant to
Section 104(a) of the Federal Mine Safety and Health Act of 1977,
30 UoSoCo § 815(d) (1977)
o

At the hearing in this matter in Grand Junction, Coloradof
on October 24q 1991 0 Petitioner, as above indicated, was repre-

sented by legal counsel.
Respondent, which the record shows
received actual notice of the hearing (a Postal Service green
card attached to the notice of hearing in the Commission 1 s official case file r
lects its receipt of the notice of hearing by
certified mail on September 17 0 1991), neither appeared nor
advised the presiding Judge or counsel for Petitioner of its
intent not to appear.
Indeed, it clearly appears that Respondent
repeatedly ignored various orders of this tribunal and efforts of
Petitionerijs counsel to communicate with it.
At hearing, a full exposition of Respondent 1 s repeated failures was made and after determination of the facts and examination of the case file, it was determined that:

1.
this

Respondent had abandoned its position and interest in

proceeding~

2.

Respondent had become incommunicado1 and

1833

3.
Respondent had failed to appear at the hearing, even
though it had received more than adequate notice and despite
efforts of counsel (at my direction) to personally contact it
regarding its intentions.
Accordingly, by decision issued from the bench on the record, the default of the Respondent was entered and the penalties
initially proposed by MSHA were ordered assessed as final.
That
decision is here AFFIRMED.
ORDER

Respondent SHALL within 3 0 days from the date of this
decision PAY to the Secretary of Labor the total sum of $800
as and for the civil penalties previously assessed ($200 each for
Citations numbered 3631073, 3631077, 3631078, and 3631075).

.~

·-:

,.,

- ,: . ' , ,£,,..,,'. //, ~'/
i'/!:~4'd:r--·fd, ~.-:~/;;;

Michael 'Ii,. Lasher, Jr.
Administrative Law Judge

Distribution:
Margaret Ao Millerv Esq.v Office of the Solicitorv U.S. Department of Laborv 1585 Federal Office Buildingv 1961 Stout Streetv
Denverv CO 80294
(Certified Mail)
Marcy Mendiscov MENDISCO BROTHERS MINING, P.O. Box 24, Naturita,
CO 81422
(Certified Mail)
ek

1834

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

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

22041

NOV 1 9 l.991
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEVA 91-109
A. C. No. 46-01452-03756

v.
Docket No. WEVA 91-138
A. C. No. 46-01452-03765

CONSOLIDATION COAL COMPANY,
Respondent

Arkwright No. 1 Mine
DECISION

Appearances:

Before:

Charles M. Jackson, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington, Virginia,
for the Secretary;
Walter J. ScheJ:er III, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Judge Maurer

These consolidated cases are before me based upon petitions
for assessment of civil penalty filed by the Secretary alleging
violations of various mandatory standards set forth in Volume 30
of the Code of Federal Regulations.
Pursuant to a notice of hearing, these cases were heard on
June 20, 1991, in Morgantown, West Virginia. At that hearing,
the parties proposed to settle two of the citations at issue in
Docket No. WEVA 91-138. The motion requested approval of the
respondent 1 s agreement to pay $213, the full amount of the
proposed penaltyr for Citation No. 3307843. The motion also
requested approval of the respondent's agreement to pay $128 of
the proposed civil penalty of $213 for Citation No. 3307844, as
well as the issuance of an order modifying this citation to a
non- 11 significant and substantial" violation.
I granted the
motion on the record, based on the Secretary's representations
and the criteria contained in Section llO(i) of the Mine Act.
The terms of this settlement motion will be incorporated into my
order at the end of this decision.
There remained for trial three Section 104(a) citations:
Citation Nos. 3307841 and 3307842 contained in Docket No.
WEVA 91-138 and assessed for $213 each; and Citation No. 3314450,
contested in Docket No. WEVA 91-109 and also assessed for $213.

1835

Both parties have filed post-hearing proposed findings and
conclusions and/or briefs, which I have considered along with the
entire record in making the following decision.
Docket No. WEVA 91-109

citation No. 3314450
This citation alleges a "significant and substantial''
violation of the mandatory standard found at 30 C.F.R.
§ 77.505 1/ and charges as follows:
Insulated bushings were not provided where the power
wires entered the metal fitting of the control box on
the No. 8 jitney operating in the yard area.
The operator does not contest the existence of the violation
of the cited standard in this instance, but rather submits that
the citation was improperly designated as being "significant and
substantial."
The No. 8 jitney is an electrically powered rail car that
runs as a trolley on the 300 volts direct current it receives
from the trolley wire.
The cited control box was located
directly in front of the jitney operator, slightly beyond his
knees and reaching at most to the height of the operator's knees.
Inspector Baniak noted that the operator of the jitney that day
was a mine foreman.
Accordingly, he concluded that management
knew or should have known of the violative condition because the
wires were only 11 a couple of inches away from the man's knee and
his hands," and he therefore found a moderate degree of
negligence on the part of the operator.
A ''significant and substantial" violation is described in
section l04(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantial
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. 11 Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

1
/

30 C.F.R. § 77.505 provides as follows:
Cables shall
enter metal frames of motors, splice boxes, and electric
compartments only through proper fittings.
When insulated wires,
other than cables, pass through metal frames, the holes shall be
substantially bushed with insulated bushings.

1836

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) .
The Secretary contends that the hazards presented by the
violation, i.e., the enhanced measure of danger to safety, are
electrical shock and burn injuries.
Inspector Baniak opined that
there was a 11 great possibility" that such a shock and burn hazard
could occur and that a serious injury could result because the
vibration of the jitney would cause vibration of the wires, which
would in turn wear through the wire at the two metal areas at the
end of the connections or where the wire enters the control box.
He further testified that the insulation on these wires was of
the solid rubber type; which easily becomes bare when rubbed
against metal through vibration.
Basically, he was concerned
that a wire would, or at least could become bare and create an
electric shock or burn hazard that would be reasonably likely to
result in an injury that would in turn result in at least lost
work days or restricted duty.
However, the Secretary must also establish a reasonable
likelihood that the hazardous condition will eventuate in the
first instance.
There is only a shock and or burn hazard
the
wire becomes bare.
It was not bare at the time the inspector
cited it, so the Secretary bears the burden of proving that there

1837

was a reasonable likelihood that it would become so with
continued normal usage in the mining operation. This burden has
not been carried. The inspector's opinion in this regard is
grounded more in speculation than in fact.
He admitted on crossexamination that the two wires in question come straight out of
the bottom of the control box, and that there was a lot of slack
in the wires; they were dangling loose. He also observed that
they were not touching the metal frame. He further admitted that
he has not driven this jeep and does not know how much the
control box vibrates, even through he knows the jitney itself
"vibrates very much." My reading of the inspector's testimony as
a whole is that he moved directly from the vibration occurring on
the jitney generally to the shock hazard of a bare wire without
adequately considering how the wire that was then insulated was
going to get bare in the first place.
I therefore find that the instant violation does not meet
the "S&S" criteria because it is unlikely that any injury to
anyone would occur as a result of this violation, and the
citation will be so modified.
In assessing a civil penalty in this case, I have considered
the foregoing findings and conclusions and the requirements of
section llO(i) of the Act.
I concur with the inspector's
negligence finding of "moderate." Under these circumstances, I
find that a civil penalty of $100 is appropriate.
DOCKET NO. WEVA 91-138

Citation No. 3307841
This citation alleges a "significant and substantial"
violation of the mandatory standard found at 30 C.F.R.
§ 77ol802(a) 2/ and charges as follows:
The energized trolley wire was not guarded for
approximately a 6 foot distance at the first cut-out
switch near the rotary dumps where locomotives are
coupled to empty mine cars.
At 8~55 a.m., on November 27r 1990, Inspector Baniak was in
the area of the rotary dump facility conducting a regular
inspection at respondent's Arkwright No. 1 Mine when he noticed
an area of unguarded trolley wire, approximately 6 feet in
2

/ 30 C.F.R. § 77.1802(a) provides as follows:
Trolley
wires, trolley feeder wires, and bare signal wires should be
adequately grounded:

(a)
At all points where men are required to work
or pass regularly under the wires.

1838

length, and approximately 25 feet from the dump building in the
direction of the mine entrance. Because he observed a motorman
working under the unguarded trolley wire, he issued the subject
citation on the spot.
At the time, the motorman was turning the trolley pole in
preparation to reverse his direction and go back into the mine.
In order to reverse the direction of travel of the trolleys used
at the Arkwright No. 1 Mine, the trolley pole must be reversed so
that the harp at the end of the pole will be at an angle toward
the rear of the trolley.
After conducting a mini-investigation into the subject, the
inspector was able to ascertain that the procedure for bringing
the coal up to the rotary dump. in the trolley cars, dropping off
the cars, and pulling away the empties was repeated by the
motormen from 14 to 20 times per day. Each time, the motormen
passed under and stopped in the same general area where the
trolley wire was unguarded. Because the number of cars pulled by
the trolley locomotive at each point in its daily routine rarely
fluctuated, the motormen regularly turned their trolley poles at
the cited location where the trolley wire was unguarded.
The importance of this fact seems lost on the respondent.
Mr. Smith, who is a mine escort for respondent, sees no
difference between turning the trolley pole in the cited area and
turning the trolley pole in various other areas in the mine where
the wire is unguarded.
But the obvious difference is that the
trolley pole is repeatedly turned in consistently the same area
that was cited day after day, all day long (14 to 20 times per
day) whereas elsewhere in the mine when the wire is unguarded the
trolley pole is only irregularly changed.
It is the frequency
and regularity of the function that the mandatory standard speaks
toe
The inspector also noted on more than one occasion that
while the motor operator turns the pole in the cited area, a
substantial portion of his body is underneath the trolley wire
with only approximately 18 inches of clearance.
The motormen are not the only workers exposed to the
electrical shock and resultant burns from inadvertently
contacting the unguarded trolley wire, although they are clearly
who the inspector had in mind when he issued the citation.
Mr. Donald Keener, a mechanic for respondent and a safety
committeeman, testified that he has personally observed greasers
greasing the mining cars in the same general vicinity as the
cited area for 2 weeks every spring, and another 2 weeks every
fall.
While Mr. Keener did clearly state that the greasers would
not be standing under the unguarded trolley wire while they were

1839

greasing cars, he also testified that he has seen people walking
under the wire in the cited area for reasons unknown to him, but
nevertheless exposing themselves to the hazards presented.
Accordingly, I find that a violation of 30 C.F.R.
77.1802(a) existed as the inspector cited it. Furthermore, I
also believe the violation was "significant and substantial." In
order to make an "S&S" finding, the Secretary must prove a
violation, a discrete safety hazard, a reasonable likelihood that
the hazard will result in injury, and that the injury will be of
a reasonably serious nature. Mathies Coal Co., supra.
§

Herein, I have already found the violation, and I accept as
credible the opinion testimony of Inspector Baniak to the effect
that the respondent's failure to provide a trolley wire guard at
the cited location created an enhanced measure of danger to
safety, i.e., electric shock or serious burns if inadvertent
contact with the unguarded trolley was made.
I also concur with
his opinion that in the normal course of continued mining
operations, it would be reasonably likely that a motorman would
accidently contact the unguarded wire. The cited area is an
active location, with motormen turning their trolley poles
14 to 20 times per day at this particular spot. Finally, I take
administrative notice that a shock or burn from a 300 volt wire
could reasonably result in a serious injury if it in fact
occurred.
I also concur with the inspector that the appropriate level
of negligence established by inference in the record is ordinary
or moderate negligence.
Considering the criteria in section llO(i) of the Act, I
conclude that an appropriate civil penalty for the violation is
$213v as originally proposed by the Secretaryo
Citation Noo 3307842
This citation alleges a "significant and substantial"
violation of the mandatory 'standard found at 30 C.F.R.
§ 770202 3 / and charges as follows~

Dry coal dust (black in color) ranging up to 2 inches
in depth was accumulated on structures throughout the
second floor area under the Rotary Dump Facility.

3
/

30 C.F.R. § 77.202 provides as follows:
Coal dust in the
air of, or in, or on the surfaces of structures, enclosures, or
other facilities shall not be allowed to exist or accumulate in
dangerous amounts.

1840

At 9:08 a.m., on November 27, 1990, Inspector Baniak entered
the second floor of the rotary dump facility during the course of
a regular "AAA" inspection at respondent's Arkwright No. 1 Mine.
He observed very dusty conditions in the room, which measured
approximately 30 feet by 30 feet, with dry coal dust throughout
the area having accumulated up to 2 inches on the structures in
the room.
He measured the coal dust accumulations with a ruler,
at the least at four locations, noting that it varied from less
than 1 inch to 2 inches in depth and he concluded that, relying
on his experience and demonstrations that he had observed, there
was 20 to 30 times the amount of dust needed to actually cause an
explosion or a flash burn. He also noted that coal dust is
easily ignited if an ignition source is present and the dust is
in suspension, and he testified that the dust was fine, black,
and dry, and could easily be put into suspension by persons
walking in the area.
In this regard, he further noted that all
persons, including management personnel, who desired to enter the
bottom floor of the facility had to pass through the cited area.
Furthermore, due to the placement of the facility, high on a
hill, the coal dust accumulations could be placed in suspension
by breezes and drafts passing.through the open grate ceiling.
The ignition sources which the inspector identified were
inter alia:
lights, electrical components, switches, and welding
that might be done in that ·area.
The inspector opined that, because of the explodability of
the coal dust accumulations and the amount of dust present,
combined with the many potential ignition sources, it was "very
reasonably likely" and "very possible" that the coal dust would
be ignited during the ongoing mining process if the cited
conditions had not been corrected.
I concur in his analysis and
find this violation established and furthermore agree with his
01 s&s uv
special finding o Mathies, supra o
The closer issue in this case that arose in connection with
this citation is that of merger with another citation that was
written 18 minutes earlier in the same dump facility citing the
same section of the standards for accumulation of coal dust.
The
only difference being that the citations were written for two
different floors of the facility¢
Citation Noo 3307540 is
presently being contested in Docket No. WEVA 91-1550.
Importantly, the inspector admitted that the only reason he did
not include the second floor accumulations in Citation
Noo 3307540 was because he found them a short time (18 minutes)
after the accumulations on the top floor.
He testified that
while he would normally have issued only one citation for both
floors, he did not on this occasion because of the lapse of time
between discovery of the accumulations on the two floors.
Even
more importantly however, I find that inasmuch as the instant
citation and its docket are not consoliqated for hearing or

1841

decision with citation No. 3307540 and its Docket No. WEVA 911550, and the penalty for Citation No. 3307540 has not been
adjudicated or paid, Citation No. 3307842 is properly before me
for disposition on its own merits.
Considering the criteria in section llO(i} of the Act, I
conclude and find that an appropriate civil penalty for the
violation is $213, as originally proposed by the Secretary.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:

1. citation Nos. 3307843, 3307841, and 3307842 ARE
AFFIRMED.
2. Citation Nos. 3307844 and 3314450 ARE MODIFIED to delete
the significant and substantial finding and, as modified, ARE
AFFIRMED.
3.
Consolidation-coal Company shall pay a civil penalty in
the amount of $867 within 30 days of the date of this decision.

urer
ative Law Judge
Distribution:
Charles M. Jackson, Esq., Office of the Solicitor, U. s.
Department of Laborv 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)
Walter J. Scheller III, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
dcp

1842

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

22041

NOV 2 0 1991
CIVIL PENALTY PROCEEDINGS

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

Docket No. VA 91-565
A.C. No. 44-01656-03530D

v.
Docket No. VA 91-566
A.C. No. 44-05654-035390

LAMBERT COAL COMPANY,
Respondent

Docket No. VA 91-567
· A.C. No. 44-05210-03543D
Docket No. VA 91-568
A.C. No. 44-05831-035520
Docket No. VA 91-569
A.C. No. 44-06582-035070
Mines 14, 43, 44, 47, 48
DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On November l, 1991, the Secretary and Respondent filed a
motion to approve a seLtlement in the above cases. The above
five dockets contain 10 alleged violations of 30 C.F.R.
§ 70.209(b) in each of which the Secretary alleged that
Respondent altered the weight of a respirable dust sample
submitted by Respondent as part of its sampling requirements.
The Secretary contends that the violations resulted from a
deliberate act; the operator denies that it deliberately tampered
with or altered any of its dust filter media.
Each violation was originally assessed at $1100, for a total
penalty of $11,000. The settlement proposes that each penalty be
reduced to $825, for a total penalty of $8250, the reduction
based on a dispute between the parties as to the degree and
existence of negligence.
I have considered the motion in the light of the criteria in
section llO(i) of the Act, and conclude that it should be
approved.

1843

Accordingly, IT IS ORDERED:
1.

The settlement agreement is APPROVED.

2. Respondent shall within 30 days of the date of this
order pay the sum of $8250 as a civil penalty for the alleged
violation.

)/f-,(,vG:; A-/::;;z,d24/t,, ~;{,

;J

James A. Broderick
Administrative Law Judge

Distribution:
Douglas N. White, Esq., Patrick Zohn, Esq., U.S. Department of
Labor, Office of the Solicitor, 4015 Wilson Blvd., Arlington, VA
22203 (Certified Mail)
W. Challen Walling, Esq., Penn.T Stuart, Eskridge & Jones, P.O.
Box 2009, Bristol, VA 24203 (Certified Mail)
slk

1844

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

22041

NOV 2 0 1991
WYOMING FUEL COMPANY 1
Contestant
v.

CONTEST PROCEEDINGS
Docket No. WEST 91-365-R
Citation No. 9858159; 4/4/91

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) 1
Respondent

Docket No. WEST 91-366-R
Citation No. 9858160; 4/4/91
Docket No. WEST 91-367-R
citation No. 9858161; 4/4/91
Docket No. WEST 91-368-R
Citation No. 9858162; 4/4/91
Golden Eagle Mine
Mine I.D. 05-02820

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 91-519
A.C. No. 05-02820-035890
Golden Eagle Mine

WYOMING FUEL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER OF DISMISSAL

On October 28, 1991, the Secretary of Labor (Secretary) and
Wyoming Fuel Co. (Wyoming) filed a Motion to Approve Settlement
and to Withdraw Notice of Contest. The Secretary asserts that
the violations alleged resulted from a deliberate act of
tampering with dust filter media. Wyoming denies that it
deliberately tampered with or altered any of the dust filter
media. The parties agree to a settlement wherein Wyoming agrees
to pay the amount of the proposed civil penalties, $5200 for 4
alleged violations, within 30 days of the entry of an order
approving settlement. The settlement agreement provides that it
shall not be deemed an admission of or used for any purpose
except for civil matters arising under the Act.
It is not to be
used in any criminal or private civil litigation. However, the

1845

Secretary is not precluded from including the citations in the
operator's history of violations and considering such violations
in proposing civil penalties pursuant to 30 u.s.c. § 820(i).
Wyoming agreed to withdraw its notices of contest.
I have considered the motion in the light of the criteria in
section llO(i) of the Act, and conclude that it should be
approved.
Accordingly, IT IS ORDERED:
1.

The settlement reached between the parties is APPROVED.

2. Wyoming shall, within 30 days of the date of this order,
pay the sum of $5200 as civil penalties for the violations
alleged in the four citations contested herein.
3. The contest proceedings, Docket Nos. WEST 91-365-R
through WEST 91-368-R are DISMISSED.
j

.

.

I

I

t'

.

_f//i/1;1\--i. '.::> . /ff
()
·

,.

dv rf&-ruJ(.,
i

v

..

..,

•

"!

/I

James A. Broderick
Administrative Law Judge

Distribution:
Douglas N. White, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Thomas Means, Esq., Crowell & Moring, 1001 Pennsylvania Ave.,
N.W. Washington, D.C. 20004-2505 (Certified Mail}

slk

1846

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

22041

NOV 2 0 1991
CIVIL PENALTY PROCEEDING

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

Docket No. VA 91-564
A.C. No. 44-01717-035660

v.
Raven No. 1 Mine
KOCH CARBON, INC. - KOCH
RAVEN DIVISION,
Respondent
DECISION APPROVING SETTLEMENT

Before:

Judge Broderick

on November 1, 1991, the Secretary and Respondent filed a
motion to approve a settlement in the above case. The docket
involves a single alleged violation of 30 C.F.R. § 71.209(b) in
which the Secretary alleged that Respondent altered the weight of
a respirable dust sample submitted by Respondent as part of its
sampling requirements. The Secretary states that the violation
resulted from a deliberate act; the operator denies that it
deliberately tampered with or altered any of its dust filter
media.
The motion states that the parties agree to settle the case
by reducing the proposed penalty from $1200 to $960 based on a

dispute between the parties as to the degree and existence of
negligence.
I have considered the motion in the light of the criteria in
section llO(i) of the Act, and conclude that it should be
approved,

1847

Accordingly, IT IS ORDERED:
1.

The settlement agreement is APPROVED.

2. Respondent shall within 30 days of the date of this
order pay the sum of $960 as a civil penalty for the alleged
violation.
//.I ~

~/I

/

!

j t'v-vJt.L~ .· · . .7vvY1J-€-vuk._
'./'-"

/,
l//

"(/

James A. Broderick
Administrative Law Judge

Distribution:
Douglas N. White, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
W. Challen Walling, Esq., Pennr Stuart, Eskridge & Jones, P.O.
Box 2009, Bristol, .VA 24203 (Certified Mail)
slk

1848

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

NOV 2 7 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 91-292
A.C. No. 46-04370-03575

v.

Rowland No. 9 Mine
CONSOLIDATION COAL COMPANY,
Respondent

ORDER OF DISMISSAL
Appearances:

Roberts. Wilson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
Walter J. Scheller III, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Melick

Petitioner in essence requests approval to now withdraw her
Petition in the captioned case for the reason that upon further
analysis she believes no violation of the cited standard has
occurred. Under the circumstances herein, permission to withdraw
is granted.
29 C.F.R. § 2700.11. The citation is accqrdingly
vacated and this case
therefo ~e dismiss~d.
/

1

\\

,/(

\

I.,,_,,

I

I

\

f

~' lA A/\ ~'\j\.;\ / \

Gary M';l:~k \

Administrativ~

\

Distribution~

\

~\_,
Law Judge

\

Roberts. Wilson, Esq., Office of the Solicitor, U.S. Department
Labor, Ballston Towers #3, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 (Certified Mail)
Walter J. Scheller III, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421
(Certified Mail)
/fb

1849

ADMINISTRATIVE LAW JUDGE OHDERS

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

NOV 18 1991
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 91-1988
A. C. No. 46-07178-03501

v.

Red Warrior Mine

EL DORADO CHEMICAL COMPANY,
Respondent
DECISION DENYING MOTION TO
APPROVE SETTLEMENT
Before:

Judge Fauver

This case is a petition for assessment of a civil penalty
under § 105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § et ~
Petitioner has moved for approval of a settlement to reduce
the alleged violation from "significant and substantial" to non-s&s
and to reduce the penalty to $20.

The Meaning of a "Significant
and Substantial" Violation
The Commission has held that a violation is "significant and
substantial" if there is "a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably
serious nature. iu u. s. Steel Mining Co., Inc •• 7 FMSHRC 327 v 32.8
(1985)' Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
1981)~ Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984).
This evaluation
made in terms of "continued normal mining operations." u. s.
Steel Mining Co., Inc .. 6 FMSHRC 1573, 1574 (1984). The question
of whether a particular violation is significant and substantial
must be based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal
Company, 9 FMSHRC 1007 (1987).
Analysis of the statutory language and the Commission's
decisions indicates that the test of an S&S violation is a
practical and realistic question whether, assuming continued mining
operations, the violation presents a substantial possibility of
resulting in injury or disease, not a requirement that the
Secretary of Labor prove that it is more probable than not that

1850

injury or disease will result.

An illustration of this point is

u. s. Steel Mining Co. , Inc. , supra, in which the Commission
affirmed an S&S finding by a Commission judge.
that:

the judge found

* * * [A]n insulated bushing was not provided where the

insulated wires entered the control box for a water pump.
The insulation on the wires was not broken or damaged.
The water pump's electrical system was protected by two
fuses - one a 30 amp fuse on the cable, and one a 10-30
amp control fuse inside the box. When it is operating,
the pump vibrates, and the vibration could cause a cut in
the insulation of the wire in the absence of a bushing.
This could result in the pump to become the ground and,
if the circuit protection failed. anyone touching the
pump could be shocked or electrocuted. * * * [5 FMSHRC at
1791 (1983); emphasis added.]
As found by the judge, inJury from the missing-bushing
violation could result if the insulation wore through to metal and
the circuit protection system 'failed to operate. However, one may
observe that circuit protection devices are not presumed to be
"reasonably likely" to fail unless they are found to be defective.
There was no finding of defective fuses in the u. s. Steel case.
The violation presented a substantial possibility of injury, not
proof that injury was more probable than not.
The effective
meaning of the Commission's term "reasonably likely to occur" as
applied in cases such as U. S. Steel is to find an S&S violation if
the violation presents a substantial and significant possibility of
injury or disease, not a requirement that injury or disease is more
probable than not. This meaning harmonizes with the statute, which
does not use the phrase "reasonably likely to occur" or "reasonable
likelihood" in defining an S&S violation, but states that an S&S
violation exists if the "violation is of such nature as could
significantly and substantially contribute to the cause and effect
of a coal or other mine safety or health hazard" (§ 104(d) (1) of
the Act; emphasis added).
In contrast, the statute defines an
"imminent danger" as "any condition or practice •.•. which could
reasonably be expected to cause death or serious physical harm
1
before [it] can be abated"
and expressly classifies S&S
violations as less than imminent dangers. 2
Proposed Settlement
Citation 3503706 alleges an unsafe steering section on a truck
Section J(j) of the 1969 Mine Act, unchanged by the Federal
Mine Safety and Health Act of 1977.
2

Section 104(d) (l) limits S&S violations to conditions that
"do not cause imminent danger • • • "

1851

used to haul explosives, in violation of 30 C.F.R. § 77.1606(c).
The inspector observed that the steering section was loose and
moving sideways about one-half inch.
He concluded that this
condition could cause the bolts to break, resulting in loss of
steering capability, and that a serious vehicle accident was
reasonably likely.
The motion seeks to reduce the charge to non-S&S and the
penalty to $20 on the grounds that:
Because the driver of the truck regularly performs
routine maintenance on the vehicle which includes
tightening the bolts • • • and because the driver may
have been able to feel the steering coming loose prior to
any effect on the actual steering of the truck, a
reasonable likelihood of serious injury did not exist if
normal mining operations had continued.
The motion misconstrues the term "normal mining conditions."
This term refers to continued mining operations assuming the
violation is not abated.
It_would render the Act and safety and
heal th regulations a- hollow mechanism if violations were to be
redesignated as non-s&s violations on the ground that the operator
might detect and correct the violation before an accident occurs.
The proposed penalty of $20 trivializes the alleged violation,
which the inspector found to be serious based on his on-site
observations.
ORDER

The motion to approve settlement is DENIED.

u)~~~v~

William Fauver
Administrative Law Judge

Distribution~

Patrick Lo Depace, Esq., Office of the Solicitor, U. s. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA
22203
(Certified Mail)
Mr. David Jo Howerton, Field Manager, El Dorado Chemical Company,
Po O. Box 27382, St. Louis, MO 63141 (Certified Mail)
/fas

1852