JUNE
Commission Decisions
06-20-86
06-20-86
06-25-86

Z.B. Houser v. Northwestern Resources Co.
Consolidation Coal Company
Sec./Donald Hale v. 4-A Coal Company

WEST 83-101-D
WEVA 82-209-R
VA
85-19-D

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890
905

Administrative Law Judge Decisions
06-02-86
06-05-86
06-05-86
06-05-86
06-09-86
06-10-86
06-10-86
06-11-86
06-12-86
06-13-86
06-13-86
06-16-86
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06-20-86
06-20-86
06-20-86
06-23-86
06-25-86
06-30-86
06-30-86
06-30-86
06-30-86

Joline, Inc.
Karst Robbins Coal Co., Inc.
Emerald Mines Company
Pittsburg & Midway Coal Mining Co.
White County Coal Corporation
Bon Trucking Company, Inc.
Emery Mining Corporation
Greenwich Collieries
Greenwich Collieries
Youghiogheny & Ohio Coal Co.
Ronald McKinney v. Eastern Assoc. Coal
Quarto Mining Company
Odell Maggard v. Chaney Creek Coal Corp.
Drummond Company, Inc.
Pollard Sand Company
Youghiogheny & Ohio Coal Co.
Ann Riley Owens v. Monterey Coal Co.
Consolidation Coal Company
Sec./Earl Kennedy, Larry Collins v. Raven
Red Ash Coal Corporation
Cobblestone, Ltd.
Cobblestone, Ltd.
Thompson Coal & Construction Inc.
William Shell, et al. v. Harlan-Bell Coal,
and Reece Lemar
Johnnie Lee Jackson v. Turner Brothers, Inc.
White County Coal Corporation
Coal Company
C. D. Livingston
Climax Molybdenum Company

KENT 85-82
KENT 85-190
PENN 86-133-R
WEST 86-11
LAKE 86-58-R
KENT 85-34-R
WEST 86-35-R
PENN 85-307
PENN 86-51
LAKE 86-56
WEVA 86-92-D
LAKE 85-72-R
KENT 86-1-D
SE
86-24
SE
85-1-M
LAKE 86-4-R
LAKE 86-33-D
WEVA 86-80-R
VA
85-32-D
WEST 86-52-M
WEST 86-55-M
WEVA 85-119
KENT 85-144-D
CENT 86-36-D
LAKE 86-58-R
PENN 85-260
WEST 85-55-M
WEST 85-96-RM

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JUNE
Review was granted in the following case during the month of June:
Gary Goff v. Youghiogheny & Ohio Coal Company, Docket No. LAKE 84-86-D.
(Judge Melick, May 6, 1986)
Review was denied in the following cases during the month of June:
Secretary of Labor, MSHA v. D & D Coal Company, Docket No. PENN 85-55.
(Default Decision of Judge Merlin, April 29, 1986)
Kerr-McGee Chemical Corporation v. Secretary of Labor, MSHA, Docket No.
CENT 81-134-RM. (Interlocutory Review of Judge Morris' May 21, 1986 Order)

COMMISSION DECISIONS

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

June 20, 1986

Z.B. HOUSER

v.

Docket No. WEST 83-101-D

NORTHWESTERN RESOURCES COMPANY

BEFORE:

Hackley, Doyle, Lastowka and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This proceeding involves a discrimination complaint brought by the
Secretary of Labor on behalf of Zimmie B. Houser. The complaint alleges
that Northwestern Resources Company ("Northwestern") violated section
lOS(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815(c)(l982), when it failed to recall Houser to work after he had
been laid off due to a production shutdown of the mine. Northwestern
contends that Houser was not recalled because of his unsatisfactory work
performance. Following a hearing on the merits, a Commission administrative law judge concluded that Northwestern did not violate section
lOS(c) of the Mine Act, and the judge dismissed the discrimination
complaint. 6 FMSHRC 1798 (July 1984)(ALJ). For the reasons stated
below, we affirm this result.
On October 1, 1981, Northwestern hired Mr. Houser to work as a
crusher operator at its Grass Creek Mine, a surface coal mine located at
Grass Creek, Wyoming. The Grass Creek Mine was managed for Northwestern
by Monte Steffans. Roger Sprague was employed as the working foreman.
Effective January 1, 1982, Houser was transferred from Grass Creek
to Northwestern's small load-out facility at Kirby, Wyoming, approximately
60 miles from Grass Creek. (Only one employee worked at the Kirby
facility.) Coal from the mine was trucked to the load-out facility
where it was dumped, stockpiled, and loaded into railroad cars. The
facility was located about 400 yards from Rouser's home. At Kirby,
Houser was responsible for keeping the dump area clean so that trucks
could unload. Houser was responsible also for loading the coal into
waiting railroad cars for shipment to Northwestern's customers.

883

In March 1982, Houser was transferred back to the Grass Creek Mine.
He was replaced at Kirby by another miner from Grass Creek who needed
the lighter work available at the load-out facility. Prior to the
transfer, Sprague had received complaints about Rouser's job performance
at Kirby. Sprague testified that several truckers complained that they
had to wait for Houser to come to the load-out site in order to unload
their coal. Sprague also testified that Houser overloaded the railroad
cars and did not maintain satisfactorily the front-end loader that he
operated. When Houser returned to Grass Creek, he was assigned to the
night shift. Approximately one month later, the night shift was suspended
and Houser was transferred to the day shift. With this transfer, the
day shift consisted of Houser, four other miners, and the foreman,
Sprague.
During the spring of 1982, Houser made various complaints to Sprague
about the health and safety conditions at Grass Creek. Houser complained
about the amount of dust in the pit, that the windows on the front-end
loader that he operated were too small, and that coal dust was entering
the cab through a broken windshield. Houser told Sprague that he was
afraid of contracting pneumoconiosis or some other disease because of
the amount of dust that he was inhaling. He testified that on some days
there was as much dust inside the cab as there was outside the cab.
Houser also complained to Sprague about the safety of the steering
mechanism on the front-end loader. Sprague agreed that the steering
mechanism was defective and he had it repaired.
In May 1982, as a result of dust samples taken during the course of
a regular inspection, Northwestern was issued a citation alleging that
respirable dust in Rouser's designated occupation exceeded the applicable
limits.
During June 1982, as a result of losing one of its major customers,
Northwestern laid-off miners at Grass Creek and Kirby. On June 11,
1982, Mine Manager Steffans announced that four miners, including Houser,
would be laid off. In ranking the four miners who were laid off Steffans
determined that Houser was third best. The four miners were given their
final pay checks and termination notices signed by Steffans and Sprague.
Rouser's notice stated that his job knowledge exceeded requirements and
that the quality and quantity of his work, and Rouser's personal relationships on the job, met requirements. However, it also noted that Rouser's
initiative could show improvement. Finally, the notice stated that
Houser was recomm~nded for rehire.
Approximately two weeks after he was laid off, Houser met Steffans
and during the course of their conversation, Steffans indicated that the
Grass Creek Mine would soon reopen. On July 19, 1982, the two miners
whom Steffans had rated higher than Houser were recalled to work at
Grass Creek.. Near the end of July 1982, when Houser found out about
their recall, he telephoned Steffans and asked why he had not been
recalled. Steffans explained that he was not recalled because Sprague
did not want him back.

884

During August 1982, the miner whom Steffans had rated below Houser
was recalled. Houser contacted his union representative and complained
that he had been by-passed. The representative's inquiry as to why
Houser had not been recalled was referred to Steffans. In a memorandum
dated August 23, 1982, Steffans stated that Houser was not recalled
because during the course of his employment: (1) he did not maintain
his equipment properly; (2) he was frequently absent from the job site
at Kirby; (3) he did not keep the Kirby facility clean; and (4) he did
not obey Sprague's orders concerning the manner in which he loaded coal.
The Secretary of Labor filed a discrimination complaint with the
Commission on Rouser's behalf. After an evidentiary hearing, the judge
found that Rouser's complaints regarding the coal dust in the pit and
the steering mechanism on the front-end loader were protected by the
Mine Act. 6 FMSHRC at 1806. The judge further concluded that Houser
was not recalled to work in part because of his protected activities.
Id. at 1809. Turning to Northwestern's argument that it did not recall
Houser because of his overall poor job performance, the judge stated
that when an operator produces evidence that a failure to rehire is
based upon a legitimate business purpose, the burden is upon the complainant to establish that he would have been rehired "but for" his
protected activity. 6 FMSHRC at 1809-10, quoting text from Wayne
Boich d.b.a. W.B. Coal Co. v. FMSHRC, 704 F.2d 275, 284 (6th Cir. 1983).
The judge found that Houser did not establish that he would have been
rehired "but for" his protected activity because Rouser's job performance was, in fact, unsatisfactory. 6 FMSHRC at 1810.

On review, Houser argues that the judge did not apply the proper
legal test to determine whether he was the victim of unlawful discrimination. He also argues that the judge's findings of fact and the judge's
conclusions are not supported by substantial evidence.
Upon reviewing the analytical framework of the judge 1 s decision, we
conclude that it is deficient in some respects. Nevertheless, we have
reviewed the record as a whole carefully, and conclude that, with certain
clarifications, the judge 1 s ultimate determination that Northwestern 1 s
failure to recall Houser did not violate the Mine Act is supported by
substantial evidence and consistent with properly applied precedent.
See Secretary of Labor on behalf of Sedgmer et al. v. Consolidation Coal Co.,
8 FMSHRC 303, 306 (March 1986); Gravely v. Ranger Fuel Corp., 6 FMSHRC
799 (April 1984), aff'd sub. nom. Gravely v. Ranger Fuel Corp. & FMSHRC,
765 F.2d 138 (4th Cir. 1985).
To establish a prima facie case of discrimination a complaining
miner bears the burden of production and proof to show (1) that he
engaged in protected activity, and (2) that the adverse action complained
of was motivated in any part by that activity. Secretary on behalf of Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980),
rev'd on other grounds sub. nom. Consolidated Coal Co. v. Marshall, 663
F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may

885

rebut the prima facie case by showing either that no protected activity
occurred or that the adverse action was not motivated in any part by
protected activity. If the operator cannot rebut the prima facie case
in this manner, it nevertheless may defend affirmatively by proving (1)
that it was also motivated by the miner's unprotected activity, and (2)
that it would have taken the adverse action in any event for the unprotected activity alone. The operator bears the burden of proof with
regard to this affirmative defense, Haro v. Magma Copper Co., 4 FMHRC
1935, 1936-38 (November 19&2), but the ultimate burden of persuasion
does not shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20.
See also Donovan v. Stafford Construction Co., 732 F.2d 954, 958-59
(D.C. Cir. 1984) and Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir.
1983)(both cases specifically approving the Commission's Pasula-Robinette
test).
With respect to the first element of the prima facie case, the
judge's finding that during the spring of 1982 Houser made several
complaints to Sprague about the dust at Grass Creek, the condition of
the windows and the windshield of the cab of the front-end loader, and
the steering mechanism of the front-end loader are supported by substantial
evidence. We agree with the judge that these complaints constitute
protected activity under the Mine Act. 6 FMSHRC at 1807.
The judge's finding that the second element of the prima facie case
was established is also supported by substantial evidence. The record
indicates that Houser was the most vocal of the miners concerning health
and safety matters. Also, MSHA's citation of Northwestern for excessive
respirable dust came at about the same time as Rouser's complaints to
mine management about the dust. Further, there is testimony that after
failing to recall Houser, Sprague told one of the other miners that
Houser was a "troublemaker." As the judge correctly noted, inferences
of an operator's motivation may be drawn from such circumstantial evidence.
6 FMSHRC at 1809.
However, a crucial issue remains -- the adequacy of Northwestern's
affirmativP. defense. In reciting the test to be applied for determining
whether a violation of section 105(c) of the Mine Act occurs when an
operator is motivated in any part by the exercise of protected activity,
the judge stated the law incorrectly. The judge quoted and appeared to
in part rely upon the Sixth Circuit's decision in Wayne Boich d.h.a. W.B.
Coal Co., v. FMSHRC, 704 F.2d 275 (6th Cir. 1983), in which the Court
had declined to approve the Commission's test regarding the manner in
which an operator may affirmatively defend against a prima facie case.
The judge, however, apparently was unaware that on reconsideration, the
Sixth Circuit reversed itself and approved the Commission's test.
Boich, 719 F.2d at 195-96. Thus, the correct inquiry is whether Northwestern would have refused to rehire Houser, in any event, for his
unprotected activity alone. The judge's decision also provides his
answer to this question. In his conclusion of law number 3 the judge
stated: 11 Northwestern proved by a preponderance of the evidence that
Houser was not rehired for reasons of unsatisfactory job performance."
6 FMSHRC at 1814. This finding is supported by substantial evidence as
discussed below.

886

It is clear that Sprague and others had numerous problems with
Hauser's work. Sprague testified that Houser was absent frequently from
the Kirby load-out facility. He testified that in response to complaints
from the truckers he had gone to Kirby on several occasions to check on
Rouser's attendance and that on some occasions he had to wait at least
45 minutes during normal work hours for Houser to arrive. Further,
Houser was insubordinate from time to time. Sprague testified that
during January 1982 the front-end loader that Houser usually operated at
Kirby was not working and that a smaller substitute loader had to be
used. Although Houser did not question the safety of using the smaller
loader, he nonetheless refused to load the stockpiled coal into the
waiting railroad cars. Because of his work refusal on that occasion,
Houser was sent home and Sprague was forced to load the coal himself.
Sprague testified that the next day he informed Steffans that Houser had
refused to load the railroad cars and recommended that he be discharged.
Sprague had received other complaints about Hauser's work at Kirby. He
testified that Houser frequently overloaded railroad cars and, as a
result, the company was forced to expend funds to send two men 80 miles
to the railroad yard to shovel excess coal out of the cars. After
Houser was replaced at Kirby, Sprague testified that the railroad cars
were seldom overloaded and that complaints about the work at Kirby were
"almost nonexistent."
Two coal truck drivers who were familiar with Hauser's work at
Kirby also testified as to his poor job performance. Carl Bechtold
testified that Houser did not keep the load-out facility clear so that
coal could be dumped from his truck. Bechtold stated that frequently he
had to wait for the area to be cleared; in fact, he said, this happened
about twice a week during December 1982. He also complained that
frequently Houser was not present at the load-out facility when he
arrived to dump his coaL Bechtold testified that he brought Rouser's
absences to the attention of Sprague and Steffans. Thomas Anderson,
whose trucks transported coal from Grass Creek to Kirby, estimated that
he had contact with Houser on a daily basis. He testified that he and
his men often had to wait for Houser to arrive at the facility in order
to unload their trucks, even though Rouser's home was only 400 yards
away. Anderson also testified that Houser did not maintain properly the
load-out facility. On some occasions the trucks could not be unloaded
because the area was not levelled off and there was no room to dump the
coal. Mr. Anderson testified further that he complained about Houser to
Sprague and Steffans.
Moreover, Sprague testified that Houser did not properly maintain
the equipment that he operated. Sprague testified that Northwestern
instructs each employee to monitor equipment constantly for missing or
broken parts and that each employee is also responsible for the routine
maintenance .of equipment. Sprague testified that Houser was lax in
replacing fittings and headlights and in maintaining pins on the frontend loader. Further, Sprague testified that the
windows on the
equipment that Houser operated had to be repeatedly replaced due to
Rouser's failure to latch the door.

887

The judge found the foregoing testimony of Northwestern's witnesses
with respect to the multiple instances of Rouser's unsatisfactory job
performance to be credible. 6 FMSHRC at 1812. The judge acknowledged
that several of Hauser's fellow employees testified that he was a good
worker. The judge, however, found that the statements of these witnesses
were general in nature, as opposed to the more detailed and specific
testimony of Steffans and the truckers. Moreover, none of the miners
who testified on Hauser's behalf had immediate knowledge of Hauser's job
performance at Kirby. Given the particularized nature of the testimony
of Northwestern's witnesses and the judge's first-hand observation of
the witnesses at the hearing, we find no reason for overturning the
judge's credibility determinations and his resolutions of conflicting
testimony. See, e.g., Ribel v. Eastern Associated Coal Corp., 7 FMSHRC
2015, 2021 (December 1985), petitions for review filed, Nos. 86-3832(L)
& 86-3833 (4th Cir. March 31, 1986). ];_/
Accordingly, we conclude that the record and the judge's findings
establish that Northwestern would not have recalled Houser to work in
any event due to his poor work performance. Thus, we hold that the
discrimination complaint was properly dismissed and affirm the judge's
decision on the bases discussed above. 2/

ames A.

~

L. Clair Nelson, Commissioner

1/
Rouser's termination notice, which indicated that he was recommended
for rehire, was accorded little weight by the judge and is contrary to
the substantial evidence recited above concerning his job performance.
2/
Chairman Ford did not participate in the consideration or disposition
of this case.

888

Distribution
George G. Christiansen, Esq.
Christiansen, Kavanaugh & Sanford
1535 Grant St., Suite 280
Denver, Colorado 80203
Edward F. Bartlett, Esq.
Northwestern Resources, Co.
40 East Broadway
Butte, Montana 59701

889

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

June 20, 1986

CONSOLIDATION COAL COMPANY
v.

Docket No. WEVA 82-209-R

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 82-245
v.

CONSOLIDATION COAL COMPAI'l1,
UNITED MINE WORKERS OF AMERICA,
Intervenor
BEFORE:

Backley, Doyle, Lastowka and Nelson, Commissioners

DECISION
BY THE COMl~ISSION:
This case presents a question of major importance in the enforcement of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et~· (1982), concerning overexposure to respirable dust in coal
mines: What are the appropriate criteria for determining whether a
violation of 30 C.F.R. § 70.lOO(a), based upon designated occupation
sampling results obtained pursuant to 30 C.F.R. § 70.207, is of such
nature as could significantly and substantially contribute to the cause

890

and effect of a mine health hazard. l/ In the hearing on the merits
before Commission Administrative Law Judge James A. Broderick, Consolidation Coal Company ("Consol") admitted that it violated the
standard, but denied that the violation was significant and substantial
within the meaning of section 104(d)(l) of the Mine Act. 30 U.S.C.
§ 814(d)(l).
Seen. 3, infra. Judge Broderick determined that the
violation was properly designated as significant and substantial, and
assessed a civil penalty of $150. 5 FMSHRC 378 (March 1983)(ALJ). We
granted Consol's petition for discretionary review, permitted the
participation of several amici curiae, and heard oral argument. ];_/
We conclude that the test first set forth in Cement Division, National
Gypsum Co., 3 FMSHRC 822 (April 1981), with certain adaptations appropriate
in the context of this exposure-related health standard, is applicable in
determining whether a violation of section 70.lOO(a), based upon designated

l/

30 C.F.R. § 70.lOO(a) provides:
Each operator shall continuously maintain the average
concentration of respirable dust in the mine atmosphere
during each shift to which each miner in the active
workings of each mine is exposed at or below 2.0 milligrams of respirable dust per cubic meter of air as
measured with an approved sampling device and in terms
of an equivalent concentration determined in accordance
with § 70.206 (Approved sampling devices; equivalent
concentrations).
30 C.F.R. § 70.207 provides in part:
(a) Each operator shall take five valid respirable dust
samples from the designated occupation in each mechanized
mining unit during each bimonthly period beginning with
the bimonthly period of November 1, 1980. Designated
occupation samples shall be collected on consecutive normal
production shifts or normal production shifts each of which
is worked on consecutive days. The bimonthly periods are:
January 1
March 1

February 28 (29)
April 30
June 30
August 31
October 31
December 31.

May 1

July 1
September 1
November 1

]:_/
The following amici curiae participated in review proceedings
before the Commission: the American Mining Congress, Emery Mining
Corporation, the United Steelworkers of America, the International
Chemical Workers Union, and the Council for the Southern Mountains.

891

occupation sampling results in excess of the specified limit, is significant
and substantial. On the bases discussed below, we affirm the judge's
finding of a significant and substantial violation.
I.

Consol operates the Blacksville No. 1 Mine, in Monongalia County,
West Virginia. On January 20-24, 1982, pursuant to the designated
occupation sampling requirements of the Department of Labor's Mine
Safety and Health Administration ("MSHA"), Consol collected five respirable dust samples for the continuous miner occupation in section 026-0,
a mechanized mining unit. The samples were collected with an approved
sampling device operated by a certified person. As required by 30 C.F.R.
§ 70.209(a), Consol submitted the samples to MSHA for analysis.
The
operator included a request that MSHA check the samples for contamination,
rock dust, and oversized particles. MSHA's weight analysis of the
samples revealed respirable dust concentrations of 8.1, 0.4, 5.1, 6.3
and 0.7 milligrams of respirable dust per cubic meter of air (mg/m3).
The average concentration for the five samples was 4.1 mg/m3. MSHA did
not microscopically examine the samples for contamination, rock dust, or
oversized particles.
On the basis of these test results, an MSHA inspector issued a citation to Consol under§ 104(a) of the Mine Act, 30 U.S.C. § 814(a),
alleging that miners had been exposed to an average respirable dust
concentration of 4.1 mg/m3 in violation of section 70.lOO(a). The
inspector, following MSHA enforcement policy guidelines, designated the
violation as significant and substantial. ]_/ The citation was terminated
]_/

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

30 U.S.C. § 814(d)(l)(emphasis added).

892

when five valid samples collected on five consecutive production shifts
revealed an average respirable dust concentration equal to or less than
the 2.0 mg/m3 permissible exposure level of section 70.lOO(a). Consol
contested the citation and a hearing was held.
Before the administrative law judge, Consol conceded a violation of
30 C.F.R. § 70.lOO(a). The primary focus of Consol's argument and the
judge's decision was on whether the violation was of such nature as
could
and substantially contribute to the cause and effect
of a coal mine health hazard. In upholding the MSHA inspector's finding,
the judge relied in part on the CoTIIlllission's National Gypsum test for
determining the existence of a significant and substantial violation of
a safety standard and on the detailed medical evidence presented by the
parties. 5 FMSHRC at 388-90. !±_/
The
found that chronic bronchitis and black lung disease,
technically known as coal workers' pneumoconiosis ("pneumoconiosis"),
can result from cumulative exposure to respirable dust in coal mines.
5 FMSHRC at 381-382. Chronic bronchitis, which can be disabling, is an
inflammation of the bronchial tubes that results in a chronic productive
cough and loss of lung function. 5 FMSHRC at 381. Pneumoconiosis, as
the judge stated, is:
a
disease caused by the deposition of coal dust
on the human lung and the body's reaction to it. The
dust accumulates in the small airways and the macrophagia
of the lungs are unable to clear it. Continuous exposure
to coal dust may cause the condition to spread and to
involve most parts of the lung. In some individuals
the condition may progress to progressive massive fibrosis
which involves the destruction of alveoli and distortion
of the remaining lung tissue.
Id.
the medical evidence, the judge found that the overexposure in this case to an average respirable dust concentration of 4.1
mg/m3, in and of itself, would not cause or significantly contribute to
chronic bronchitis or pneumoconiosis. 5 FMSHRC at 389. However, he
also concluded that, in appropriate instances, an
a significant and substantial finding in a section 104(a)
FMSHRC at 388. The Commission resolved this issue subsequently in Consolidation Coal Co., 6 FMSHRC 189 (February 1984). The
judge's conclusion is consistent with the Commission's holding in
and, therefore, we affirm the judge's decision in
1 i mi t our discussion to the remaining issues raised on
review.
tor

-'--"'--~~~~~~~--

!jj
Simple pneumoconiosis is asymptomatic and diagnosed by X-ray
examination. Complicated pneumoconiosis, or progressive massive
fibrosis, is roore severe and typically causes symptoms of chronic cough
and shortness of breath. 5 FMSHRC at 381.

893

also found that cumulative instances of exposure to a 4.1 mglm3 concentration
of respirable dust could cause or significantly contribute to development
of these diseases.
The judge reasoned that each unit of overexposure
is an important factor in contributing to either disease. 5 FMSHRC at
389-90. He also noted that the overexposure in this case was more than
twice the allowable maximum dust level--a "substantial overexposureu in
his view. 5 FMSHRC at 389 n. 4. The judge concluded that each episode
of overexposure significantly and substantially contributes to the
health hazard of contracting chronic bronchitis or pneumoconiosis,
diseases of a reasonably serious nature. 5 FMSHRC at 389-90.
II.

We first discuss the proper test for determining whether a violation of section 70.lOO(a) is significant and substantial, evaluate
Consol's assertions that MSHA's dust sampling methods are fatally flawed,
and then apply our test to the facts of the present case.
In National Gypsum, the Commission held:
[A] violation is of such nature as could significantly and substantially contribute to the cause
and effect of a mine safety or health hazard if,
based upon 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.
3 FMSHRC at 825. Consonant with the Mine Act's significant and substantial phraseology and the Act's overall enforcement scheme, we stated:
[A] violation "signifiCantly and substantially"
contributes to the cause and effect of a hazard
if the violation could be a major cause of a danger
to safety or health. In other words, the contribution to cause and effect must be significant and
substantial.
3 FMSHRC at 827 (footnote omitted). See also U.S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984); Consolidation Coal Co., 6 FMSHRC 34,
37 (January 1984); Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).
Thus, the violation must be a major cause of a danger to safety or
health. !ii

!i_I

Although the language of National Gypsum speaks to the hazards
created by violations of both mandatory safety and health standards, it
is important to note that until now the Commission has had occasion to
review application of the test only in cases involving violations of
mandatory safety standards. Se~, .£.:..g_., Mathies Coal Co., 6 FMSHRC at 3
n. 4. In applying and interpreting the test as it here relates to a
violation of 70.lOO(a), a health standard, we imply no change in the
test as applied to violations of mandatory safety standards.

894

Prior to the Commission's National Gypsum decision, the Secretary
of Labor's enforcement policy was to regard all violations of mandatory
standards as significant and substantial, except violations that were
technical in nature or that posed only a remote risk of injury. Subsequent to National Gypsum, the Secretary altered his enforcement policy
with regard to significant and substantial violations. MSHA, Policy
Memorandum (May 6, 1981). The revised policy recapitulates the Commission's
National Gypsum test regarding safety standard violations. With respect
to violations involving health standards, however, the Policy Memorandum
provides:
[V]iolations involving mandatory health standards
which limit exposure to or require protection from
harmful airborne contaminants, toxic substances or
harmful physical agents should be designated as
"significant and substantial. 11 MSHA believes that
noncompliance with this type of health standard
involves a reasonable likelihood of injury or
illness which will be reasonably serious. The use
of personal protective equipment (PPE), however,
should be taken into account. Although the use
of PPE may not constitute compliance with health
standards that set an exposure limit, the use of
PPE by miners affected by the violation is relevant to determining whether any injury or illness
is reasonably likely to occur.
MSHA's Policy Memorandum makes clear that the use of personal protective equipment by miners affected
the violation is relevant to its
determination of whether any injury or illness is likely to occur.
MSHA's Policy Memorandum also states that violations of mandatory health
standards that do not involve an exposure-related standard, or are only
technical, will not be treated by MSHA as significant and substantial
violations.
As the above-quoted portions of MSHA's Policy Memorandum indicate,
the Secretary's enforcement approach does not precisely parallel
Gypsum with respect to an exposure-related health hazard. As explained
below, however, in the particular context of the control of respiruble
dust in coal mines some departure is justified because of fundamental
differences between a typical safety hazard and the respirable dust
exposure-related health hazard at issue.
An examination of the statutory text and the legislative history of
the Mine Act reveals a clear congressional understanding of the unique
nature of the exposure-related health hazards of respirable dust and the
control of those hazards. Indeed, prevention of pneumoconiosis and
other occupational illnesses is a fundamental purpose underlying the
Mine Act. Congress' concern is first expressed in section 2 of the Act:

895

[T]here is an urgent need to provide more effective
means and measures for improving the working conditions
and practices in the Nation's coal or other mines in
order to
death and serious physical harm, and
in order to prevent occupational diseases originating
in such mines [.]
30 U.S.C. § 80l(c)(emphasis added). Section 20l(b) of the Act, 30 U.S.C.
§ 84l(b), describes the coverage and intent of the interim mandatory
health standard regarding respirable dust concentrations. That section
stresses the prevention of any disability from pneumoconiosis or any
other occupation-related disease:
Among other things, it is the purpose of this subchapter
to provide, to the greatest extent possible, that the
working conditions in each underground coal mine are
sufficiently free from respirable dust concentrations
in the mine atmosphere to permit each miner the
opportunity to work underground during the period
of his entire adult working life without incurring
any disability from pneumoconiosis or any other
occupation-related disease during or at the end
of such period.
30 u.s.c. § 84l(b).
The respirable dust standard involved in the present case, section
70.lOO(a), is taken directly from section 202 of the Mine Act, 30 U.S.C.
§ 842, which, in turn, was carried over without significant change from
the 1969 Coal Act. These statutory sections set interim mandatory
health standards, which the Secretary has adopted. When these standards
limiting miners' exposure to respirable dust in coal mines were drafted
in 1969, Congress recognized a direct relationship between reductions of
respirable dust in the mine atmosphere and corresponding reductions in
the incidence of disabling respiratory disease in coal miners. See,
~·· S. Rep. No. 411, 9lst Cong., 1st Sess. 14-17 (1969), reprinted in
Senate Subcommittee on Labor, Committee on Labor and Public Welfare,
94th Cong., 1st Sess., 1 Legislative History of the Federal Coal Mine
Health and Safety Act of 1969, at 141-43 (1975)("1969 Legis. Hist.").
See also 1969 Legis. Hist. 355-58; H. Rep. No. 563, 9lst Cong., 1st
Sess. 15-20 (1969), reprinted in 1969 Legis. Hist. 1045-50; 1969 Legis.
Hist. 1195-99. With regard to its ultimate decision to adopt a 2.0
mg/m3 respirable dust standard, Congress recognized that in a dust
environment below approximately 2.2 mg/m3, there would be virtually no
probability of a miner's contracting complicated coal workers' pneumoconiosis,
even after 35 years of exposure at that level. H. Rep. No. 563, supra,
at 18, reprinted in 1969 Legis. Hist. 1048; 1969 Legis. Hist. 1197-98.
The legislative history also reflects awareness that a standard at or
below 2.2 mg/m3 would produce no danger of miners developing disabling
disease. Id.; 1969 Legis~ Hist. 1277.

896

Thus, we find in the Mine Act an unambiguous legislative declaration
in favor of preventing any disability from pneumoconiosis or any other
occupation-related disease. We also find repeated observations in the
legislative history that a respirable dust standard at or below 2.2
mg/m3 would produce no danger of miners developing disabling disease.
To emphasize Congress' desire for a fixed ceiling on exposure levels,
the section-by-section summary of the Conference Report states:
In all cases, the standard is keyed to each individual miner. 'The air he breathes, wherever he
works in the mine, must not contain more respirable dust during any working shift than the
standard permits.
1969 Legis. Hist. 1606 (emphasis added). Congress plainly intended the
2.0 mg/m3 standard it adopted to be the maximum permissible exposure
level in order to achieve its goal of preventing disabling respiratory
disease. Also, Congress clearly intended the full use of the panoply of
the Act's enforcement mechanisms to effectuate this congressional goal,
including the designation of a violation as a significant and substantial
violation. It is against the background of Congress' firm intent to
prevent respiratory disease by setting permissible levels of miners'
exposure to respirable dust that we turn to the question of the proper
test for determining whether a violation of section 70.lOO(a), based
upon excessive designated occupation samples, is a significant and
substantial violation.
In Mathies Coal Co., supra, the Commission further discussed the
elements that establish, under National Gypsum, whether a violation of a
mandatory safety standard is significant and substantial:
[T]he Secretary .•. must prove: (1) the underlying
violation of a mandatory safety standard; (2) a
discrete safety hazard--that is, a measure of danger
to safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
6 FMSHRC at 3-4 (footnote omitted).
Adapting this test to a violation of a mandatory health standard,
such as section 70.lOO(a), results in the following formulation of the
necessary elements to support a significant and substantial finding:
(1) the underlying violation of a mandatory health standard; (2) a
discrete health hazard--a measure of danger to health--contributed to by
the violation; (3) a reasonable likelihood that the health hazard contributed to will result in an illness; and (4) a reasonable likelihood
that the illness in question will be of a reasonably serious nature.

897

In the present case, as in all cases in which the "significant and
substantial" issue is being addressed, the underlying violation of a
mandatory standard (element one), is established. Here, Consol conceded
the violation. We find that the second element, a measure of danger to
health posed by the violation, is established also. The miner in the
sampled designated occupation was exposed to an excessive average concentration of respirable dust, i.e., 4.1 mg/m3, more than twice the
maximum permissible level set by Congress to eliminate the probability
of miners contracting disabling respiratory diseases. Indeed, any
exposure above the 2.0 mg/m3 level, based upon designated occupation
sampling results, giving rise to a section 70.lOO(a) violation will
satisfy this element.
The third element, a reasonable likelihood that the health hazard
contributed to will result in an illness, presents a more difficult
conceptual issue. In addressing this element we are mindful that, as
discussed previously, Congress recognized that miner exposure in excess
of the maximum level set in the respirable dust standard would produce
disabling pneumoconiosis and other occupation-related diseases in a
statistically significant portion of the coal mining workforce. Congress
established the 2.0 mg/m3 respirable dust standard, which the Secretary
has adopted, as the best available means of preventing disabling respiratory
diseases. In adopting this standard, Congress chose not to distinguish
between susceptible and non-susceptible individuals, choosing instead
a universal prophylactic approach to the problem of causation. This
approach reflected Congress' attempt to assure that all miners, regardless of their physical predisposition or the length of time that they
have worked in coal mines, would be uniformly protected from the incremental health hazards presented by repeated overexposures to respirable
dust in coal mines.
We recognize that the development and progress of respiratory
disease is due to the cumulative dosage of dust a miner inhales, which
in turn depends upon the concentration and duration of each exposure,
and that proof of a single incident of overexposure does not, in and of
itself, conclusively establish a reasonable likelihood that respirable
disease will result. There is no dispute, however, that overexposure to
respirable dust can result in chronic bronchitis and pneumoconiosis. The
effects of the health hazards associated with overexposure to respirable
dust usually do not cause immediate symptoms--as noted, simple pneumoconiosis
is asymptomatic. This factor makes precise prediction of whether or when
respiratory disease will develop impossible. Likewise, it is not possible
to assess the precise contribution that a particular overexposure will
make to the development of respiratory disease. In sum, the present
state of scientific and medical knowledge, as exemplified by the present
record, do not make it possible to determine the precise point at which
the development of chronic bronchitis or pneumoconiosis will occur or is
reasonably likely to occur.
Thus, the development of respirable dust induced disease is insidious,
furtive and incapable of precise prediction. Yet, as set forth above,
reduction in the incidence of such diseases is one of the fundamental

898

purposes of the Mine Act. Accordingly, given the nature of the health
hazard at issue, the potentially devastating consequences for affected
miners, and strong concern expressed by Congress for eliminating respiratory illnesses in miners, we hold that if the Secretary proves that an
overexposure to respirable dust in violation of section 70.lOO(a), based
upon designated occupation samples, has occurred, a presumption arises
that the third element of the significant and substantial test--a reasonable likelihood that the health hazard contributed to will result in an
illness--has been established.
The fourth element of the significant and substantial test, a
reasonable likelihood that the illness in question will be of a reasonably serious nature, is not seriously disputed. Congress noted not only
the economic losses to the nation caused by respirable dust induced
diseases, but also the "immeasurable cost of human pain and suffering."
S. Rep. No. 411, supra, at 17, reprinted in 1969 Legis. Hist. 143.
Further, the judge found that complicated pneumoconiosis entails the
destruction of the lungs' air exchange capabilities and distortion of
the remaining lung tissue. Progressive massive fibrosis also significantly
impairs the functional capacity of the lungs through extensive internal
scarring, contracture of the lungs with compensatory emphysema, and loss
of the vascalature. Progressive massive fibrosis commonly causes shortness
of breath and cough, and can cause progressive pulmonary impairment and
early death. The above facts support a conclusion that there is a
reasonable likelihood that illness resulting from overexposure to respirable dust will be of a reasonably .serious nature.
We recognize that the essence of the above discussion of each of
the four elements of the significant and substantial test would be the
same in all instances where the Secretary proves a violation of section
70.lOO(a) based upon designated occupation samples. Therefore, rather
than requiring the Secretary to prove anew all four elements in each
case, we hold that when the Secretary proves that a violation of 30 C.F.R.
§ 70.lOO(a), based upon excessive designated occupation samples, has
occurred, a presumption that the violation is a significant and substantial
violation is appropriate. We further hold that this presumption that
the violation is significant and substantial may be rebutted by the
operator by establishing that miners in the designated occupation in
fact were not exposed to the hazard posed by the excessive concentration
of respirable dust, e.g., through the use of personal protective equipment. II
Thus, with these adaptations, we extend the application of the
National Gypsum test to the determination of whether a violation of
section 70.lOO(a), based upon excessive designated occupation samples,
is significant and substantial.

II

MSHA's policy memorandum, quoted supra, recognizes that the use of
personal protective equipment will ordinarily preclude a significant and
substantial finding in connection with violations of 30 C.F.R. § 70.lOO(a).

899

III.
We next address Consol's contention that, in general, MSHA's
sampling and testing procedures for respirable dust are not sufficiently
accurate to warrant designating violations of section 70.lOO(a) as
significant and substantial. Consol argues that the judge was incorrect
in assuming that the 4.1 mg/m3 average concentration of the five respirable
dust samples existed for the entire bimonthly reporting period. We do
not agree. MSHA's designated occupation respirable dust sampling regulation,
section 70.207 (n. 1, supra), divides the calendar year into six distinct bimonthly periods. By establishing a series of fixed periods for
sampling, as opposed to providing for a series of periodic samples, the
standard evidences an intent that the five respirable dust samples taken
during each bimonthly period will be viewed as representative of the
mine atmosphere for that particular period. Perhaps other sampling
methodology could be devised, but we cannot conclude that the bimonthly
method chosen by the Secretary is unreasonable or otherwise impermissible.
The judge correctly interpreted the standard and properly held that the
4.1 mg/m3 average concentration of the five
dust samples
exemplified the mine atmosphere over the course of the entire bimonthly
sampling period.
Consol also argues that the variability encountered in the sampling
procedure produces results that are not representative of the mine
atmosphere; that mistreatment or malfunction of sampling devices may
lead to collection of more dust than intended; that sampling devices
collect materials other than respirable coal dust; that sampling devices
may collect non-respirable, oversized dust particles; and that the dust
samples that are collected do not reflect individual miner exposures.
In American Mining Congress v. Marshall, 671 F.2d 1215 (10th Cir.
1982), the Tenth Circuit considered MSHA's designated area sampling
, substantially the same regulations at issue here. There,
the American Mining Congress challenged the Secretary's regulations on
both substantive and procedural grounds, alleging that the Secretary had
acted in an arbitrary and capricious fashion in promulgating the regulations.
The Tenth Circuit dismissed the petition for review, holding that the
Secretary's promulgation of the respirable dust sampling program was not
arbitrary and capricious. On review, Consol offers variations of the
arguments advanced and rejected in the standards promulgation case. It
to distinguish those arguments challenging the test results for
purposes of issuing a citation from those designating the violation as
significant and substantial.
We adopt the initial perspective that all sampling methods fall
short o+ perfection and are designed to provide best estimates of actual
conditions. As the Tenth Circuit aptly observed:
Since measurement error is inherent in all sampling,
the very fact that Congress authorized a sampling
program indicates that it intended some error to be
tolerated in enforcement of the dust standard.
v. Marshall, 671 F.2d at 1256.

900

The Mine Act does not require the Secretary to ensure the accuracy
of respirable dust samples collected by the operator. That responsibility rests with the operator. 30 U.S.C. § 842(a). By prescribing the
manner in which samples shall be collected and transmitted, the Secretary
has attempted to minimize the errors inherent in the sampling process.
30 C.F.R. Part 70, Subpart B. Among other things, these safeguards
include multiple shift sampling, 30 U.S.C. § 70.207; certification of
persons collecting samples, 30 C.F.R. §§ 70.202 and 70.203; periodic
recalibration of sampling devices, 30 C.F.R. § 204; and periodic
examination, testing, and maintenance of sampling devices, id. The
results obtained under MSHA's respirable dust sampling program may not
perfectly represent atmospheric conditions encountered in the mine.
However, if the operator complies with the mandated collection procedures, the result obtained should be reasonably representative of the
mine atmosphere. At the hearing there was considerable testimony offered
to show that mistreatment and malfunction can affect a sampling device's
ability to produce accurate results. The judge recognized this fact,
but found that there was no evidence in the record indicating that
either of these deficiencies had occurred. 5 FMSHRC at 380. The judge's
finding is supported by substantial evidence. In the absence of the
necessary showing of actual deficiencies, further consideration of this
challenge is unwarranted.
In the Mine Act, Congress deferred to the Secretary's expertise and
granted him authority to designate approved sampling devices and to
define what constitutes concentrations of respirable dust. 30 U.S.C.
§ 842(a).
The Secretary has followed the wording of the Mine Act in his
regulations, referring to "respirable dust" and "respirable coal mine
dust." See 30 U.S.C. § 842; 30 C.F.R. Part 70. It is argued that the
Secretary's use of these terms does not draw a distinction between
respirable coal dust and other benign types of respirable dust.
Apparently, this wording was used because Congress relied on studies
based on the Mine Research Establishment ("MRE") instrument in establishing the 2.0 mg/m3 respirable dust standard. The MRE device was not
designed to differentiate among different dust types and an amalgamated
approach is therefore reflected in the 2.0 mg/m3 respirable dust standard.
It is also noteworthy that the respirable dust standard addresses any
disability from any other occupation-related disease, and that some of
these diseases, chronic bronchitis for instance, can be caused by any
type of respirable dust.
A similar rationale applies to the argument concerning oversized
particles. Some particles
than 10 microns behave aerodynamically
like smaller particles and are subject to collection by the sampling
device. Tr. 275-80. This action occurs in the MRE instrument as well
as other devices approved by the Secretary. Thus, owing to its genesis,
the 2.0 mg/m3 standard reflects a certain number of these oversized
particles in that limit.
The Secretary's respirable dust analysis procedures provide for a
visual check for oversized particles when a sample reveals a weight gain
of greater than 6 mg (an MRE equivalent result of 8.6 mg/m3). This

901

examination cutoff point was established on the basis of studies showing
that samples with less than a 6 mg weight gain have a low statistical
probability of having enough oversized particles present to affect that
sample's validity. Tr. 281-86. Thus, we find a reasonable relationship
between the weight gain cutoff point and the validity of the sample.
Whether this policy always should prevail over an operator's specific
request that a suspect sample be inspected visually for oversized particles remains an open question. In this case, however, Consol failed
to articulate to MSHA, or _later to prove, other sufficient grounds to
bring the accuracy of the samples into question.
On the basis of the foregoing, particularly the strength of the
Tenth Circuit's decision in AMC v. Marshall, we reject Consol's sampling
procedure challenges and conclude that MSHA's general sampling and
testing procedures for respirable dust are sufficiently accurate to
designate violations of section 70.lOO(a) as significant and substantial.
In addition, an operator is not precluded from proving that the accuracy
of the sampling or testing results in a particular instance was compromised,
thereby defeating the allegation of a violation as well as a significant
and substantial finding. Consol presented no persuasive evidence in
this regard in this case.
IV.
Finally, we analyze under the criteria approved earlier in this
decision whether Consol's violation of the respirable dust standard was
significant and substantial.
Consol has admitted that it violated section 70.lOO(a) based upon
the excessive designated occupation sampling results at issue. Accordingly,
a prima facie case that this violation was significant and substantial
was established by the Secretary. Consol did not assert or prove that
no miners were exposed to the hazard~ We note that the record is devoid
of any references to the use of personal protective equipment by the
miners involved here. Accordingly, the significant and substantial
nature of the violation is established.

902

v.
Based on the facts presented by this case, we conclude that Consol's
violation of the mandatory respirable dust standard at issue was of such
nature that it could contribute significantly and substantially to the
cause and effect of a mine health hazard and affirm the judge's holding
to that effect.
On the foregoing bases, the judge's decision is affirmed.§_/

ames A. Lastowka, Commissioner

~~

Chairman
of this matter.

did not participate in the consideration or disposition

903

Distribution
Robert M. Vukas, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Anna Wolgast, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Timothy Biddle,
Adrienne J. Davis, Esq.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington, D.C. 20036
Henry Chajet, Esq.
Michael Duffy, Esq.
American Mining Congress
1920 N Street, N.W.
Suite 300
Washington, D.C. 20036
J. Davitt McAteer, Esq.
Center for Law & Social Policy
1751 N Street, N.W.
Washington, D.C. 20036
Mary-Win O'Brien,
United Steelworkers of America
Five Gateway Center
Pittsburgh, PA 15241
Mary Lu Jordan, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005'
Salvatore J. Falletta, Esq.
International Chemical Workers Union
1655 West Market St.
Akron, Ohio 44313
Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, VA 22041

904

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

June 25, 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of DONALD R. HALE

v.

Docket No. VA 85-29-D

4-A COAL COMPANY, INC.

BEFORE:

Backley, Doyle, Lastowka, and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This discrimination proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), presents
the question of whether the administrative law judge properly granted
the operator's motion to dismiss the Secretary of Labor's discrimination
complaint alleging that Donald R. Hale's discharge by 4-A Coal Company
("4-A") was in violation of the Mine Act. Mr. Hale had filed a timely
discrimination complaint with the Department of Labor's Mine Safety and
Health Administration ("MSHA"), but the Secretary did not file his
complaint before the Commission until more than two years later. Respondent 4-A moved to dismiss the Secretary's complaint as untimely. The
presiding judge, Commission Administrative Law Judge Joseph B. Kennedy,
granted 4-A's motion and dismissed the complaint. 7 FMSHRC 1552 (October
1985)(ALJ). For the reasons that follow, we reverse and remand for
further proceedings.
4-A operated the No. 4 Mine, an underground coal mine located in
Buchanan County, Virginia. The Secretary's complaint alleges that 4-A
discriminated against Hale when it discharged him on June 16, 1983, for
making safety complaints to management about the lack of a methane
monitor on his scoop. 1/ Five days after his discharge, Hale filed a
timely discrimination complaint with MSHA. The Secretary notified 4-A
of Hale's complaint and commenced an investigation to determine whether
1/
A scoop is a mechanized vehicle used primarily to transport coal
from the face to the dumping point.

905

a violation of the Mine Act had occurred. On August 14, 1985, more than
two years after Hale's initial complaint to MSHA, the Secretary filed a
discrimination complaint with the Commission on Hale's behalf after
determining that 4-A had violated the Mine Act.
On September 3, 1985, in response to the Secretary's complaint, 4-A
filed with the Commission an answer and a motion to dismiss the proceeding.
As grounds for its motion to dismiss, 4-A contended that the Secretary
had failed to file his complaint "immediately" with the Commission
pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2), as
evidenced by the two-year delay in filing. Counsel for the Secretary
did not file a response to 4-A's motion to dismiss. The administrative
law judge subsequently granted 4-A's unopposed motion and dismissed the
Secretary's complaint. 7 FMSHRC at 1552. The Secretary then filed a
motion for reconsideration, which 4-A opposed. The judge had issued a
dispositive order in the case and therefore denied the Secretary's
motion on both legal and jurisdictional grounds. Order dated October
25, 1985. 2/ The Secretary petitioned the Commission for discretionary
review of the judge's order of dismissal, and we directed the case for
review.
At the outset we reject the Secretary's argument that the Commission's
procedural rules obligated the judge to issue an order to show cause
before he dismissed this case. Commission Procedural Rule 63(a) provides:
When a party fails to comply with
of a judge or these rules, an order to
show cause shall be directed to the party before
the entry of any order of default or dismissal.
29 C.F.R. § 2700.63(a)(emphasis added). While Rule 63 addresses the
subject of summary disposition of proceedings, it applies only under the
specified circumstances. Neither a failure to comply with an order of a
judge nor a rule of procedure was involved here. Rather, the Secretary
decided not to file a statement in opposition to 4-A's motion to dismiss
as permitted by our rules. 29 C,F.R. § 2700.lO(b). The judge was under
no procedural obligation to issue an order to show cause prior to granting
4-A's motion to dismiss. Cf. 29 C.F.R. § 2700.64(c); Fed. R. Civ. P.
56(e) (if a party does not----respond to a summary judgment motion, judgment,
if appropriate, may be entered against him).
We also find no merit in the Secretary's argument that the judge's
dismissal of the complaint was intended as a sanction for the
's
27
Commission Procedural Rule 65(c) in part provides, "The jurisdiction
of the Judge terminates when his decision has been issued by the Executive
Director.n 29 C.F.R. § 2700.65(c). Inasmuch as the judge no longer had
jurisdiction over the case, his discussion of the merits of the Secretary's
motion for reconsideration has no legal effect.

906

failure to respond to 4-A's motion to dismiss.
the judge stated:

In his order of dismissal,

[T]he operator filed and served a motion to dismiss
the captioned wrongful discharge case on the
grounds it was untimely. Under the Commission
Rules, the Secretary had 10 days to respond. The
Secretary having failed to respond or otherwise
oppose the operator's motion or to seasonably move
for an enlargement of time, it is ORDERED that the
operator's motion be, and hereby, is GRANTED and
the case DISMISSED. See Rules 9, 10, and 41.
7 FMSHRC at 1552. We find nothing in the text of the judge's decision
compelling the conclusion that the dismissal was intended as a sanction
for the Secretary's failure to respond. Furthermore, the Commission
rules cited by the judge are logically relevant to his decision. We
also find unpersuasive the Secretary's statement that 4-A's dismissal
motion, "given its legal and factual deficiencies, did not appear to
warrant a response." Any motion to dismiss a complaint is a serious
matter not to be ignored, particularly where, as here, an innocent party
is dependent upon the Secretary's prosecution of his claim. We expect
that in the future the Secretary will not treat motions to dismiss
discrimination complaints so cavalierly.
Turning to the substantive ground advanced in the motion to dismiss,
and therefore the ground controlling the judge's dismissal order, 4-A
summarily contended that the Secretary failed to file his complaint
"immediately" with the Commission pursuant to section 105(c)(2) of the
Mine Act, as evidenced by his two-year delay in filing. We find this
bare ground, without more, to be legally insufficient to sustain the
motion and therefore conclude that the judge erred in granting it.
The Mine Act requires the Secretary to proceed with expedition in
investigating and prosecuting a miner's discrimination complaint. The
Secretary is required to act within the following time frames: (1) The
investigation of a miner's complaint "shall commence within 15 days" of
receipt of the miner's complaint (30 U.S.C. § 815(c)(2)); (2) the Secretary
"shall notify" the miner, in writing, of his determination as to whether
a violation of section 105(c)(l) of the Mine Act has occurred "[wJithin
90 days" of receipt of the m~ner's complaint (30 U.S.C. § 815(c)(3));
and (3) if the Secretary determines that there has been a violation of
the Act, "he shall immediately file a complaint with the Commission."
30 U.S.C. § 815(c)(2). (Emphasis added throughout.) 1/ Finally, section
3/
The Commission's rules of procedure implement these provisions.
Commission Procedural Rule 4l(a) addresses the Secretary's obligation
under 30 U.S.C. § 815(c)(2) to file his complaint "immediately" with the
Commission by requiring that the filing be accomplished within 30 days
of the Secretary's written determination that a violation has occurred.
29 C.F.R. § 2700.4l(a). Similarly, Commission Procedural Rule 40(b)
protects miners from investigative delays by permitting them to file
complaints with the Commission on their own behalf, pursuant to 30 U.S.C.
§ 815(c)(3), if the Secretary fails to make his written determination of
violation within the 90-day period prescribed in 30 U.S.C. § 815(c)(2).
29 C.F.R. § 2700.40(b).

907

105(c)(3) of the Act specifically states, "Proceedings under this section
shall be expedited by the Secretary and the Commission." 30 U.S.C.
§ 815 (c) (3).
While the language of section lOS(c) leaves no doubt that Congress
intended these directives to be followed by the Secretary, the pertinent
legislative history nevertheless indicates that these time frames are
not jurisdictional:
The Secretary must initiate his investigation
within 15 days of receipt of the complaint, and
immediately file a complaint with the Commission,
if he determines that a violation has occurred.
The Secretary is also required under section
10[5](c)(3) to notify the complainant within 90
days whether a violation has occurred. It should
be emphasized, however, that these time-frames are
not intended to be jurisdictional. The failure
to meet any of them should not result in the
dismissal of the discrimination proceedings; the
complainant should not be prejudiced because of
the failure of the Government to meet its time
obligations.
S. Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd
Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977 at 624 (1978) ("Legis. Hist."). Plainly, Congress clearly
intended to protect innocent miners from losing their causes of action
because of delay by the Secretary.
Related passages of legislative history make equally clear, however,
that Congress was well aware of the due process problems that may be
caused by the prosecution of stale claims. See Legis. Hist. at 624
(discussion of 60-day time limit for the filing of miner:-rs-discrimination
complaint with the Secretary). The fair hearing process envisioned by
the Mine Act does not allow us to ignore serious delay by the Secretary
in filing a discrimination complaint if such delay prejudicially deprives
a respondent of a meaningful opportunity to defend against the claim.
Accordingly, we hold that the Secretary is to make his determination
of whether a violation occurred within 90 days of the filing of the
miner's complaint and is to file his complaint on the miner's behalf
with the Commission "immediately" thereafter -- i.e., within 30 days of
his determination that a violation of section lOS(c)(l) occurred. If
the Secretary's complaint is late-filed, it is subject to dismissal if
the operator demonstrates material
prejudice attributable to the
delay. Cf. David Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 23-25
(January-Y984), aff'd mem., 750 F.2d 1093 (D.C. Cir. 1984)(table);
Walter A. Schulte v.
Industries, Inc., 6 FMSHRC 8, 12-14 (January
1984).

908

Applying these principles to the present record, there is no question
that the Secretary seriously delayed in filing the complaint. 4/ Nevertheless,
the record before the judge did not establish that the Secretary's delay
prejudiced 4-A. In the absence of this requisite foundation, the judge
erred in granting 4-A's motion to dismiss.

On the foregoing bases, we therefore reverse the decision of the
administrative law judge, reinstate the Secretary's complaint and remand
the case for further proceedings consistent with this opinion. 1/

~~~

Commissioner

~tl-~
oyceA:DOYie, Commissione

ames A. Lastow a,

~(;2

Cooonissioner

4/
We reject the Secretary's contention that because he filed his
complaint within 30 days of determining that _a violation had occurred,
he acted in a timely fashion. This contention ignores the 90-day time
frame specified in section 105(c)(3) and the possibly prejudicial effect
of the considerable delay involved here.
5/
Chairman Ford did not participate in the consideration or disposition
of this matter.

909

Distribution
Linda L. Leasure, Esquire
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Boulevard
Suite 400
Arlington, Virginia
22203
Donald R. Hale
P.O. Box 1075
Raven, Virginia

24639

C.R. Bolling, Esquire
1600 Front Street
P.O. Drawer L
Richlands, Virginia
24641
Administrative Law Judge Joseph B. Kennedy
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia
22041

910

ADMINISTRATIVE LA\.\T JUDGE DECISIONS

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

(703)

22041

756-6210

June 2, 1986

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

CIVIL PENALTY PROCEEDING
.Docket No. KENT 85-82
A. C. No. 15-14382-03510

v.
No. 3 Mine
JOLINE I

INC. ,
Respondent
ORDER OF DEFAULT

The operator having failed to comply with the Pretrial
Order or to respond to the Order to Show Cause of May 6, 1986,
it is ORDERED that the operator be, and hereby is, deemed in
DEFAULT. It is FURTHER ORDERED that pursuant to Rule 63(b) the
proposed penalties are assessed a
inal and the operator
directed to pay said penalties
he amount of $654 on or
before Friday, June 20, 1986.

Joseph B. K nnedy
Administrative Law
Distribution:
Mary Sue Ray, Esq., Office of the Solicitor, u. s. Department
of Labor, 280 u. s. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Robert J. Greene, Esq., Box 432, Betsy Layne, KY 41605
(Certified Mail)
dcp

911

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

22041

JUN 5 1996
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENTALTY PROCEEDINGS
Docket No. KENT 85-190
A. C. No. 15-10904-03534

v.
Noo 6 Mine
KARST ROBBINS COAL COMPANY,
INC.,
Respondent
DECISION
Appearances:

Charles F. Merz, Esq., Office of the Solicitor,
U. S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Mr. Edward W. Karst, Operator, Louellen,
Kentucky, for Respondent

Before:

Judge Kennedy

These matters came on for a decision after hearing in
Hazard, Kentucky, on May 22, 1986. At that time, the parties
proposed settlement of the two violations charged as follows:
CITATION/ORDER

ACTION/PENALTY

2476390
2476391

Vacate
$600.00

Based on an independent evaluation and de novo review of
the circumstances, as proffered in the parties' prehearing
submissions and in the evidence adduced at the hearing, the
trial judge found the settlement proposed was in accord with
the purposes and policy of the Act.

912

Distribution:
Charles F. Merz, Esq., Office of the Solicitor, u. S. Department of Labor, 280 u. S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
.Mr. Edward w. Karst, President, Karst Robbins Coal Co., Inc.,
P. O. Box 493, Louellen, KY 40853 (Certified Mail)
dcp

913

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

JUN 5 1986
EMERALD MINES COMPANY,
Contestant

v.

.
.:

CONTEST PROCEEDINGS

:

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
UNITED MINE WORKERS OF
AMERICA (UMWA),
Intervenor

Docket No. PENN 86-133-R
Order No. 2536796; 4/8/86
Emerald Mine No. 1

.
.
DECISION

Appearances:

R. Henry Moore, Esq., Rose, Schmidt, Chapman,
Duff & Hasley, Pittsburgh, Pennsylvania, for
Contestant;
James B. Crawford, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Respondent;
Tom Shumaker and Larry Steinhoff, United Mine
Workers of America, Local 2258, Waynesburg,
Pennsylvania, for Intervenor.

Before:

Judge Melick

This case is before me under section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et. ~' the "Act," to challenge a withdrawal order issued
to Emerald Mines Company (Emerald) by the Secretary of Labor
under section 104Cd)(l) of the Act.l/ Hearings held May
1986, and this decision were expedited pursuant to Emerald's
request. See Commission Rule 52, 29 C.F.R. § 2700.52.
1/ Section 104(d)(l) provides as follows:
"If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory healtft or safety
standards, he shall include such finding in any citation
given to the operator under this Act."
914

The general issues before me are whether there was a
violation of the cited standard and if so whether that violation was "significant and substantial" and caused by the
"unwarrantable failure" of the mine operator to comply with
that standard.
The order at bar, No. 2536796, alleges a violation of
the mine operator's fan stoppa~e plan under the regulatory
standard at 30 C.F.R. § 75.321_/ and charges as follows:
The fan stoppage plan was not followed on 4/5/86
in that the No. 4 Mine fan was down more than 15
minutes and the persons underground were not
removed from the mine. The fan went down approximately 13:51 and restarted approximately 14:18.
As relevent hereto the fan stoppage plan provides that
"if the fan is down for more than 15 minutes, all personnel
will be withdrawn from the mine in an orderly manner."
During relevant. times the Emerald No. 1 Mine was
equipped with an alarm system which, when properly functioning, would trigger an alarm on the surface in the
computer room and in the lamp room when any of the mine
ventilation fans failed to function.
It was the established
procedure for the lampman to make a written notation of the
time such an alarm would sound and to alert responsible mine
officials of a fan stoppage and the precise time of stoppage.
Prompt corrective action could then be taken and, upon the
lapse of the 15 minute time period set forth in the plan,
evacuation effected.
On April 6, 1986, however, the No. 4 fan stopped but
the alarm system failed to function.
Based on computer
records it is not disputed that the .fan stopped operating at
1:50 and 50 seconds "computer time." There is no computer
record of the time the fan resumed operation. The specific
issue before me is whether or not that fan resumed operation
prior to the expiration of the 15 minute time period set
forth in the fan stoppage plan. If it did not then there was
a violation of the plan since a timely evacuation of the mine
was not made.

2; The cited standard is construed to require the operator
to comply with the fan stoppage plan approved by the Secretary, i.e., the provisions of the plan are enforceable as
though they were a mandatory standard. See Zeigler Coal Co.
v. Kleppe, 536 F.2d 398 CD.C. Cir. 1976); Secretary v. Carbon
County Coal Co., 7 FMSHRC 1367 (1985).

915

The Secretary urges as the best evidence of this time
interval the testimony of maintenance foreman Charlie
Buttermore. Buttermore testified that according to his watch
the power went off at 1:59 p.m.~/ It is not disputed that
the subject fan stopped at the same time the power went off.
Buttermore further testified that he restarted the No. 4 fan
at 2:14 p.m. according to his watch. Buttermore later
compared his watch to the computer clock and found his watch
to be 7 minutes £aster than the computer clock.
In sum the Secretary argues that the fan must have gone
off at 1:57 and 50 seconds (i.e. 1:50 and 50 seconds plus the
7 minute correction to Buttermore's watch). Implicit in the
Secretary's argument is t.hat Buttermore' s testimony that the
power (and thus also the fan) went down at 1:59 p.m. was
erroneous. According to the Secretary, therefore, the fan
was down for 16 minutes and 10 seconds, exceeding the 15
minute time frame set forth in the fan stoppage plan by 1
minute and 10 seconds.
Emerald argues on the other hand that Mr. Buttermore's
testimony of his time recordation standing alone is the best
evidence of the elapsed time. According to this view the fan
was down from 1:59 p.m. to 2:14 p.m., and was within compliance of the 15 minute time frame in the fan stoppage plan.
Buttermore's testimony is not however consistent. It is not
disputed that the fan went down at 1:50 p.m. and 50 seconds
"computer time" and that Buttermore's watch was 7 minutes
faster than that. Accordingly Buttermore's estimate that the
power went off (and the fan went down) at 1:59 p.m. was
clearly erroneous. Since the time recordation was within the
complete control of the mine operator the proffered times
should also be contrued strictly against the operator. Under
the circumstances I accept the Secretary's reconstruction of
the time interval and find that there was a violation of the
fan stoppage plan by 1 minute and 10 seconds.
I cannot however find on the facts of this case that
exceeding the 15 minute time period by 1 minute and 10
seconds was a "significant and substantial" violation of the
plan. See Secretary v. Mathies Coal Co., 6 FMSHRC 1 (1984).
3/ The MSHA Investigators also relied upon markings on the
fan charts (Exhibits G-3 and G-4) to conclude that the No. 4
fan had actually been stopped for 30 minutes. Other witnesses examining the same records with a magnifying glass
concluded however that the No. 4 fan had been down for less
than 15 minutes. From my own examination of those charts
with a magnifying glass I am unable to ascertain, with any
degree of C'ertainty, the time interval during which the fan
was stopped. Under the circumstances I accord but little
weight to this evidence.
916

The reasoning and conclusions of the MSHA inspectors that the
violation was "significant and substantial" were based on
their assumption that the plan had been violated by 12 to 15
minutes not 1 minute and 10 seconds. Clearly the potential
hazard of methane being drawn from the gob area would be
greatly reduced by this significant factual change. Under
the circumstances there is simply insufficient evidence to
find that the violation was "significant and substantial."
I further find that the violation was not caused by
"unwarrantable failure." In Zeigler Coal Company, 7 IBMA 280
(1977). The Interior Board of Mine Operations Appeals
interpreted the term "unwarrantable failure" as follows:
An inspector should find that a violation of any
mandatory standard was caused by an unwarrantable
failure to comply with such standard if he
determines that the operator has failed to abate
the conditions or practices constituting such
violation, conditions or practices the operator
knew or should have known existed or which it
failed to abate because of lack of due diligence,
or because of indifference or lack of reasonable
care.
The Commission has concurred with this definition to
the extent that an unwarrantable failure to comply may be
proven by a showing that the violative condition or practice
was not corrected or remedied prior to the issuance of a
citation or order, because of indifference~ willful intent,
or serious lack of reasonable care. United States Steel
v. Secretary of Labor, 6 FMSHRC 1423 at 1437 (1984).
It is clear in this case that the
ilure to precise
record the time of the fan stoppage was the result of an
unanticipated failure in the alarm system.4/ The designated
employee, the lampman, was therefore unable to precisely
record the time the fan went down. Since this time wasu due
to this unexpected failure, erroneously recorded and that
erroneous information was conveyed to mine management it
cannot be said that management knew or even should have known
of the violation.
In addition, I find that the manager having what was
then the best available information, Charlie Buttermore,
determined in good faith that he restarted the subject fan
within the 15 minute time frame. Furthermore as soon as
higher managers realized that the 15 minute time frame might
have been exceeded they promptly evacuated the mine and
4; I note in this regard that MSHA does not contend that the
alarm failure was the result of operator negligence and
acknowleges that the alarm had been inspected in compliance
with the regulatory requirements.
917

performed a special inspection in accordance with the fan
stoppage plan. These actions are not consistent with an
"unwarrantable failure" determination.~/
Under the circumstances Order
to a citation under section 104( )

is modified

Distribution:
R. Henry Moore, Esq., Rose, Schmidt, Chapman, Duff & Hasley,
900 Oliver Bldg., Pittsburgh, PA 15222 (Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Tom Shumaker and Larry Steinhoff, United Mine Workers of
America, Local 2258, Box 95 R.D. #2, Prosperity, PA 15329
(Certified Mail)

5/ Since I have found on the facts of this case t~at an
"unwarrantable failure" did not exist it is not necessary to
consider Emerald's objections to such findings on the grounds
that the findings were based on an "investigation" rather
than an "inspection" and that the alleged violation was
abated before the order was issued.
rbg

918

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE lAW JUDGES
333 W. COLFAX AVENU~, SUITE 400
DENVER, COlORADO 80204

JUN 5 1986

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 86-11
A.C. No. 05-00303-03508
Edna Mine

v.
THE PITTSBURG & MIDWAY
COAL MINING CO. ,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
John A. Bachmann, Esq., The Pittsburg & Midway
Coal Mining Co., Denver, Colorado,
for Respondent.

Before:

Judge Carlson

This civil penalty proceeding came regularly on for
hearing at Denver, Colorado on May 16, 1986. The case involved two citations charging that pins in the steering
mechanism of two large coal-hauling trucks were loose. The
inspector cited this alleged condition as a violation of the
mandatory safety standard published at 30 C.F.R. § 77.404(a)
which requires that mobile equipment be maintained in safe
operating condition.
'rhe Secretary put on his evidence and rested. As
respondent proceeded with its evidence i t became ever more
apparent that witnesses for the two parties were not only
in disagreement about the design characteristics of the
steering mechanisms, but that there were divergent notions
as to which parts of the trucks were actually the subject
of the citations. During a recess this judge suggested to
counsel that they con£er with a view to resolving the
differences about which parts were involved. The parties
did so.
When the hearing reconvened, counsel for the Secretary
announced that there had been a good faith mistake-of-fact
on the part of the enforcement authorities, and that the
Secretary therefore moved to vacate both citations. Counsel
for respondent agreed with that disposition, and moved for

919

leave to withdraw respondent's plea for attorney
costs {Tr. 98-99) .

and

Having heard the evidence to that point in the case,
this judge believed that the motions of the parties were
highly appropriate and announced his intention to grant them.
Accordingly, both citations in the case are hereby
ORDERED vacated with prejudice, together with the proposed
pena.l ties; and respondent's plea for attorney fees and costs
is ORDERED withdrawn and stricken. This proceeding is dismissed.

/'

J§,,r

L._ ~ -

'~-w

A. Carlson
nistrative Law Judge

Distribution:
J.::rn1es H. Barkley 9
• ,
Off ice of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street,
Denver, Colorado 80294
(Certified Mail)
Bachmann,
•,
Pittsburg & Midway Coal Mining Co.,
1720 South Bellaire Street, Denver, Colorado 80222
(Certified
Mail)
John A.

/ot

920

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

June 9, 1986
WHITE COUNTY COAL CORPORATION,:
contestant
:

CONTEST PROCEEDINGS

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

Docket No. LAKE 86-58-R
Order No. 28173731 2/6/86
Docket No. LAKE 86-59-R
Order No. 2817375; 2/21/86

.

Pattiki Mine

DECISION
Before:

Judge Melick

These cases are before me upon the contests filed by the
White County Coal Corporation (White County) under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq., the "Act, 11 to challenge the issuance by
the Secretary of Labor of two orders of withdrawal under
section 104(d) of the Act.~/

1/

Order No. 2817373 was issued under section 104Cd)(l) of
the Act. That section reads as follows:

"If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation
given to the operator under this Act."
Order No. 2817375 was issued under section 104(d)(2) of
the Act. That section provides as follows:
"If a withdrawal order with respect to any area in a
coal or other mine has been issued pursuant to paragraph Cl),
a withdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar
to those that resulted in the issuance of the withdrawal
order under paragraph Cl) until such time as an inspection of
such mine discloses no similar violations. Following an
inspection of such mine which discloses no similar violations, the provisions of paragr~ph Cl) shall again be applicable to that mine."
921

White County subsequently filed a motion for partial
summary decision pursuant to Commission Rule 64, 29 C.F.R. §
2700.64 seeking modification of the orders to citations under
section 104(a) of the Act. White County maintains that the
section 104(d) orders at issue are invalid because they are
not based on existing practices or conditions actually perceived during an inspection by an inspector as purportedly
required by that section of the Act. The essential underlying facts indeed do not appear to be in dispute and I find
that White County is entitled to partial summary decision as
a matter of law. Commission Rule 64, supra.
On February 6, 1986, an inspector for the Federal Mine
Safety and Health Administration (MSHA), Wolfgang Kaak, was
conducting an inspection of the White County Pattiki Mine
when he discovered that a chalk centerline had been drawn
under the unsupported roof of room No. 6 from the last row of
permanent supports inby to the face for a distance of 13 feet.
It is clear that the inspector was not present when the chalk
line was drawn and that he did not observe anyone under the
unsupported roof.
The coal drill operator, Darrell Marshall, admitted to
Inspector Kaak however that he had drawn the chalk line in
question because the mining sequence was behind schedule and
he was being pressed to keep his coal drilling process going.
Marshall also admitted that he had walked under the unsupported area even though he had seen the red flag warning of
the danger.
Based upon these observations and admissions
Kaak thereupon issued section 104(d)(l) Withdrawal Order No.
2817373 alleging an unwarrantable violation of the standard
at 30 C.F.Ro § 75.200. That standard provides in pertinent
part that "no person shall proceed beyond the last permanent
support o o " • n
The order reads as follows:
A chalk centerline was observed on the roof of
room No. 6 running from the last row of permanent
supports, roof bolts, inby to the face.
This
area was and had not been supported when the coal
drill operator, (D. Marshall), made the centerline on the roof. The distance from the last row
of bolts to the face was 13 feet. Working
section I.D. 003-0.
The order was terminated 25 minutes later following crew
reinstruction on the roof control plan.

922

During a subsequent inspection at the Pattiki Mine on
February 12, 1986, Inspector Kaak observed foot prints
beneath an area of unsupported roof. Again Kaak did not
observe anyone under the unsupported roof. Moreover he was
unable to obtain any further information about the incident
upon questioning the foreman and miners in the area. Kaak
nevertheless then issued section 104(d)(2) Order No. 2817375
alleging an unwarrantable violation of 30 C.F.R. § 75.200.
The order reads as follows:
Physical evidence, footprints, were observed
going through an area of unsupported roof in the
X-cut between Entry No. 6 and Entry No. 7 at
curve Y spad No. 1773. The opening averaged
about 10 feet long by 10 feet wide. The height
average was 6 feet. The area was rock dusted and
foot prints were clearly visible. Work section
I.D. 002-0.
This order was terminated about 1 hour later after the crew
was again reinstructed on the roof control plan and the area
had been permanently supported.
Citing the decisions of 5 Commission Administrative Law
Judges (Westmoreland Coal Company, Docket Nos. WEVA 82-34-R
et al, May 4, 1983, Judge Steffey; Emery Mining Corporation,
7 FMSHRC 1908, 1919 (1985), Judge Lasher; Southwestern
Portland Cement Company, 7 FMSHRC 2283, 2292 (1985), Judge
Morris; Nacco Mining Company, 8 FMSHRC 59 (1986), Chief Judge
Merlin, review pending; Emerald Mines Corporation, 8 FMSHRC
324 (1986), Judge Melick, review pending) White County maintains that the section 104(d) orders herein are invalid
because they were not issued based upon a finding by an MSHA
inspector of an existing violation of the Act or a mandatory
standard.
It is not necessary to here restate the supportive
rational of the cited decisions. It is sufficient to state
that I am in agreement with the rational of those decisions
and the principles stated therein that section 104(d) orders
cannot be issued based upon a finding by the inspector of a
violation that has occurred in the past but no longer then
exists. It is undisputed in this case that the inspector did
not observe any violations being committed but that he based
his issuance of the 104(d) orders before me upon evidence of
past violations. Accordingly White County's motion for
partial summary decision is granted and the orders at bar are
accordingly modified to citations under section 104(a) of the
Act.

923

In light of this decision the parties are directed to
confer and advise the undersigned on or bef
June 20, 1986
regarding further proceedings in this mattei •

Distribution:
Timothy M. Biddle, Esq., and Barbara Myers, Esq., Crowell &
Moring, 1100 Connecticut Ave., N.W., Washington, DC 200036
(Certified Mail)
James B. Crawford, Esq., Office of the Solic-itor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
rbg

924

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

22041

June 10, 1986

CONTEST PROCEEDINGS

BON TRUCKING COMPANY, INC.,
Contestant

Docket No. KENT 85-34-R
Order No. 2472775; 9/25/84

v.

Docket No. KENT 85-35-R
Order No. 2472776; 9/25/84

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Respondent

.
:
:

Docket No. KENT 85-151-R
Citation No. 2595441; 6/6/85
Docket No. KENT 85-152-R
Citation No. 2594993; 6/6/85
Docket No. KENT 85-153-R
Citation No. 2594994; 6/6/85
Docket No. KENT 85-154-R
Citation No. 2594996; 6/6/85
Docket No. KENT 85-155-R
Citation No. 2594997; 6/6/85
Berger No. 2 Mine
CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 86-104
A.C. No. 15-13202-03544

v.
Berger No. 2 Mine
BON TRUCKING COMPANY, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Melick

These consolidated cases are before me under section
105(d) of the Federal Mine Safety and Health Act of 1977 the
"Act. 11 Proceedings had been stayed in these cases at the
specific request of the mine operator and the Secretary to
await the decision of the United States Attorney as to
whether to present criminal charges. Because of the age of
these cases and the lack of specific information as to when the

925

United Stat~s Attorney might reach a decision in the matter,
the stay was subsequently dissolved and these cases set for
hearings on the merits.
The Secretary thereafter filed a motion to approve a
settlement agreement and to dismiss the cases. The motion
reads in part as follows:
"These citations and orders were issued during
the investigation of the multiple fatal roof fall of
September 12, 1984 at the Berger No. 2 mine operated
by Bon Trucking Company, Incorporated (Bon Trucking).
They are specially assessed penalties totalling
$55,000.00. Bon Trucking has offered to settle these
matters by the voluntary penalty payment of $50,000,
to be allocated by the Secretary amoung [sic] the
various violations. The Secretary has agreed, at the
request of Bon Trucking counsel, to accept payment of
the agreed amount in five monthly installments, the
first of which is to be $10,000 due on the last day
of the month in which the administrative law judge
approves the settlement, with the remainder being
paid $10,000 per month for the following four months
on the last day of each month. It is also understood
that the total balance will be due together with
interest and costs as provided by the Federal Mine
Safety and Health Act of 1977 (Mine Act) and federal
debt collection laws if Bon Trucking fails to make
these installment payments as agreed.
The Secretary submits that the following allocation of the settlement is consistent with the
remedial purposes of the Mine Act in particular
Section llO(i), and is in the public interest:
Citation/Order No.
2272775
2472776
2594994
2594996
2594993
2594995
2594997
2594998
TOTAL

30 C.F.R.
75.200
75.200
75.200
75.201
75.200
75.200
75.303
75.1200

Pro:eosed
$10,000
$10,000
$10,000
$10,000
$ 5,000
$ 3,000
$ 5,000
$ 2,000
$55,000

Settlement
$10,000
$10,000
$10,000
$10,000
$ 5,000
$ 1,000
$ 2,000
$ 2,000
$50,000

The roof fall collapsed on six miners, killing
four and injuring two, as indicated in the Secretary's investigation report. The massive roof fall
occurred in the second set of entries off 1st right
of the Berger No. 2 Mine, Harlan County, Kentucky.
The fall occurred while the miners were repairing a
bridge conveyor, used with the auger-type continuous
926

mining machine. A large portion of the roof, about
100 feet long, 30 feet or more wide, and 10 feet or
less in thickness, fell and covered one bridge conveyor and part of the mining machine. The Secretary's investigation further revealed that entry and
cross-cut widths exceeded the allowable widths as
required by the roof control plan and that mining of
pillars (second mining) inby the accident area had
occurred.
The Secretary's allocation of penalties appropriately places the maximum penalty on those four
violations which were the greatest contributing
factors in the roof fall.
This allocation properly
requires full payment of the maximum civil penalty
proposed for these four roof-control and mining
method violations.
In these violations, Bon Trucking
was cited for not following the major provisions of
its approved roof-control plan and for practicing
mining methods which resulted in faulty pillar
recovery.
In a fifth violation, a $5,000 penalty is
assessed for the violation citing Bon Trucking for
mining pillars (second mining) when it did not
include procedures for such activity or supporting
the roof during second mining in the roof control
plan submitted for MSHA's approval.
Failure to provide supplementary roof support
materials and failure to conduct a pre-shift examination are violations cited which the Secretary also
has included in this settlement. These violations,
in the Secretary's view, contributed to a substantially lesser degree to the cause of the roof fall
but were issued during the investigation and are
discussed in the Secretary's report. This lesser and
indirect relationship to the accident supports the
reduction of these proposals as indicated. The
penalty proposal for the up-dated mine map violation
remains unchanged, since maps provided by the
operator at the time of the roof fall bore very
slight resemblance, to the actual mining structure
and conditions underground. A higher penalty was not
proposed for this clear violation since, it too, was
not directly related to the cause of the roof fall.
The settlement amounts are consistent with what the
Secretary would expect had the cases been litigated.
All the violations in these proceedings were
very serious.
The Secretary maintains that these violations
involved negligence ranging from a high degree to
reckless disregard as described in the copies of the

927

citations and orders previously submitted, and
further maintains that the penalty assessments
accurately reflect these levels of negligence. Bon
Trucking denies that any negligent or other tortious
act or omission on its part caused the roof fall and
takes the position that for purposes of actions other
than actions or proceedings under the Mine Act,
nothing contained herein shall be deemed an admission
by Bon Trucking that it violated the Mine Act or its
standards. Therefore, the issue of Bon Trucking's
negligence is in dispute between the parties.
The violations were abated in good faith and the
operator's history of prior violations is not considered a factor in their occurrence. The operator
is medium in size and the payment of these penalties
will not adversely effect its ability to remain in
business.
(However, the operator is not presently
engaged in active operation of a mine.)
This settlement agreement is the complete
written agreement between the Secretary and Bon
Trucking. While the Secretary agrees that this
settlement is not an adjudication of the issues
herein in dispute, it is understood by Bon Trucking
that these citations and orders are final dispositions under the Mine Act and will be considered a
part of Bon Trucking's history for purposes of the
Mine Act."
Based on the representations and documentation submitted
in these cases I conclude that the proffered settlement is
appropriate under the criteria set forth in section llO(i) of
the Act and is consistent with this Commissions decision in
Secretary v. Amax Lead Company of Missouri, 4 FMSHRC 975
(1982).
WHEREFORE, the motion for approval of settlement is
GRANTED, and it is ORDERED that Bon Trucking Co., Inc., pay a
penalty of $50,000 in accordance with the pa ment schedule
provided in the settlement agreement. The
ntest proceedings
are dismissed.

928

Distribution:
Karls. Forester, Esq., Forester, Forester, Buttermore &
Turner, P.S.C., P.O. Box 935, Harlan, KY 40831-0935 (Certified
Mail)
James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
rbg

929

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

EMERY MINING CORPORATION,
Contestant

JUN 101986

CONTEST PROCEEDINGS
Docket No. WEST 86-35-R
Citation No. 2503818; 10/22/85

v.

Docket No. WEST 86-36-R
Order No. 2503819; 10/22/85

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA'I'ION

Deer Creek Mine

( MSHA) ,

Respondent
DECISION
Appearances:

Timothy Biddle, Esq., and Peter K. Levine, Esq.,
Crowell & Moring, Washington, D.C.,
for Contestant;
James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Respondent.

Before:

Judge Morris

These consolidated cases, heard under the provisions of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., (the Act), arose from a regular inspection of contestant's
Deer Creek coal mine on October 22, 1985. On that date a federal
mine inspector issued citations under section i04(d)(l) of the
Act.
Emery contests the citations and denies that a violation
occurred; further, Emery asserts that if a violation occurred it
was not caused by Emery's unwarrantable failure to comply with
the regulation.
The cases were expedited and heard in Salt Lake City, Utah
on March 5, 1986. Emery submitted two Commission decisions in
support of its position. The Secretary did not submit any posthearing submissions.
General Background
The parties stipulated that Emery is subject to the Act and
the administrative law judge has jurisdiction over the dispute.
The citation and order attached to the notices of contest are
authentic copies of the ones served on Emery. Further, the
inspector was a duly authorized representative of the Secretary
of Labor when the citation and order were issued. Finally, the
citation and order at issue were properly served on Emery CTr. 5,
6) •

930

WEST 86-35-R
In this case Emery contests Citation No. 2503818. MSHA's
citation alleges Emery violated 30 C.F.R. § 75.200. The citation
reads as follows:
Bad top is present along the First South track haulage
for approximately 55 feet between the #65 and #66 crosscuts, through this area the roof is broken up and
and [sic] sagging between the roofbolts, several steel
roof matts have buckled and several roofbolts have pulled
through the bearing plates, the chain link has loaded up
with broken top between the matts causing it to sage
[sic] on to the trolley gard [sic] compressing it against
the energized trolley, loaded trips of material have
rubed [sic] against the top tearing the chain link at
two locations.
The cited regulation provides as follows:
§

75.200 Roof control programs and plans.
[STATUTORY PROVISIONS]

Each operator shall undertake to carry out on a continuing basis a program to improve the roof control
system of each coal mine and the means and measures to
accomplish such system. The roof and ribs of all active
underground roadways, travelways, and working places
shall be supported or otherwise controlled adequately to
protect persons from falls of the roof or ribs. A roof
control plan and revisions thereof suitable to the roof
conditions and mining system of each coal mine and approved by the Secretary shall be adopted and set out in
printed form on or before May 29, 1970. The plan shall
show the type of support and spacing approved by the
Secretary. Such plan shall be reviewed periodically, at
least every 6 months by the Secretary, taking into consideration any falls of roof or ribs or inadequacy of
support of roof or ribs. No person shall proceed beyond
the last permanent support unless adequate temporary support is provided or unless such temporary support is not
required under the approved roof control plan and the
absence of such support will not pose a hazard to the
miners. A copy of the plan shall be furnished to the
Secretary or his authorized representative and shall be
available to the miners and their representatives.
Summary of the Evidence
MSHA's Evidence
MSHA inspector Dick Courtney Jones, a person experienced in
mining, issued a citation and order in the First South switch
area of the Emery Deer Creek Mine on October 22, 1985 (Tr.
14-24).

931

At the time the inspector had been travelirig through the
area with Gary Christensen, the company safety engineer (Tr.
24-26). They were traveling in a Scout vehicle operating on a
rail. This particular entry was used daily by over 200 miners,
including shift foremen and supervisors (Tr. 25-29).
The coal seam underneath the entry was also being developed.
As a result there was a lot of caving and settling in the area
(Tr. 26). A portion of the roof was also secured with chain link
fencing (Tr. 35).
The inspector indicated (referring to an area shown on
exhibl.t Pl) that some of the roof bolts had failed and in turn
fractured coal was causing the chain link to sag. Four of the
roof bolts had failed.
Also pressure on the bolts had forced the
six by six metal plates over the head of the bolts CTr. 33-38).
Such bolts are no longer effective when the roof pressure pushes
the plates over the end of the bolts (Tr. 34, 35). This is not
an uncommon occurrence and it indicates "real pressure" in the
area CTr. 39) •
During an inspection the roof and rib areas are always
checked. In a location where the top had been secured with chain
link fencing the coal had sagged down to a point where the chain
link was pressing across the trolley (Tr. 35). One of the two
trolley guards had already worn through. The clearance of a
trolley wire should be six to eight inches (Tr. 35, 36, 46). The
trolley wire carries 250 to 300 volts of DC power. If contact
occurs between the energized trolley and the chain link the
resulting sparking and heat could cause a serious and hazardous
fire in a short time (Tr. 37, 38, 44). In the inspector's
opinion about 65 feet of roof in this area had deteriorated (Tr.
43) .
The inspector considered this to be an S & S violation. The
company should have known of the condition because supervisors
travel through the area CTr. 50, 51). They could have seen the
condition of the trolley wire as well as the failed bolts (Tr.
51, 52}. The loss of bearing plates indicated the bolts were no
longer sustaining their weight. The leaning timbers in the area
also confirmed this view. It would take at least a week,
possibly months before a bearing plate becomes separated from the
bolt. There are always physical signs before a plate falls off.
In the area there was no indication of the plates that had been
forced over bolts (Tr. 40-42, 56). This particular area was also
subject to a preshift examination (Tr.' 52). The preshift examiner should have checked for any such problems (Tr. 53). The
inspector found that no entry had been made concerning this condition in the preshift and onshift examinations book (Tr. 53).
In abating the violation extensive work was required to
support the roof. This also indicated to the inspector that it
took a month for the condition to develop (Tr. 44).

932

Inspector Jones (in rebuttal) testified that the four popped
roof bolts were the last ones installed. He concluded this
because the bolts had been sucked [sic) up against the chain link
fence. You could also see the plate imprint of the 6 x 6 plate
on the chain link (Tr. 223, 224). The inspector called this
condition to the attention of Tucker and Christensen (Tr. 224).
In addition, there was no evidence of any ~lates laying between
the chain link fence and the roof (Tr. 224).
Witness Tucker confirmed inspector Jones' testimony about
his statement to Christensen (Tr. 226).
If the trolley wears through the guarding and comes in
contact with the chain link fence, a fire could result. Also
there was a possibility of chain link fence striking the miner as
he was riding through the area. Fire and roof fall hazards
existed in this area of bad top (Tr. 90, 91). The fracturing of
the roof and its settlement onto the chain link took one or two
weeks to occur (Tr. 92-93).
In Tucker's opinion this condition was apparent and should
have been known to management on the day of the inspection.
In
addition, in Tucker's view, the condition existed for a week or
more before the inspection (Tr. 101). But he had no scientific
background to support his opinion (Tr. 111).
Emery's Evidence
Kenneth D. Calihan, Emery's shift foreman, oversees the
production of coal and is responsible for safety at the Deer
Creek coal mine (Tr. 140-142).
The First South track haulage runs from No. 1 crosscut to
approximately No. 120 crosscut. The area of roof discussed by
the inspector was approximately from 58 crosscut to 80 crosscut
(Tr. 143). At the time of the inspection, between crosscut 62
and 78, there was a row of cribs installed on five-foot centers
the full length of the area. The mining activities created a
roof condition known as a squeeze or a roll (Tr. 143, 144). The
cribs on one side and timber on the other in the 65-66 crosscut
area provided additional roof support (Tr. 144-146). It was not
feasible to place timber and cribs any closer (Tr. 147). The
area cited by the inspector, between crosscuts 65 and 66, was
developed with 6 foot conventional roof bolts. At various times
the bottom and top were cut and the area was matted (Tr. 145).
The mats had some bulges in it from catching the fractured top
between the gaps in the mats (Tr. 150).
Calihan returned to the area with Inspector Jones and Max
Tucker (Tr. 151). The bulging in the chain link did not indicate
any serious long term problem (Tr. 152). Calihan described how

933

the mats were placed parallel to the track and pinned with a
second set of 6 foot resin roof bolts (Tr. 145, 146). The chain
link meshing was installed with a trolley drill. Three sets of
roof bolts were in place. At the time of the inspection the
roofbolts were spotted on 5 foot centers and they were as close
as one or two feet (Tr. 146).
The Emery safety department, as well as its safety committee, monitors this area. Calihan had not had any reports
about problems in the area in the year before the issuance of the
citation (Tr. 147). Three fire bosses, who are certified mine
inspectors and part of the union work force, walk the area once
each shift (Tr. 148, 149). Caliban could not recall any reports
of problems in this area (Tr. 149).
When Caliban was called to 65-66 crosscut he saw that the
trolley wire was close to chain link mesh in spots (Tr. 152, 153).
The condition was not obvious (Tr. 153). The wear on the trolley
wire might have been caused by clearance in the area (Tr. 154).
In this area some roof bolts had been bent and some were
missing plates (Tr. 156). Caliban agreed that it takes awhile
for bearing plates to pop off (Tr. 181, 186). The ones with the
missing plates were above the wire mesh. They looked old.
Conventional roof bolts can be distinguished by their style and
material (Tr. 156). In Calihan's opinion the roof was adequately
supported (Tr. 156, 157) however, he would change his opinion
(that the roof was adequately supported) if it was the last group
of bolts that were losing its bearing plates (Tr. 187). The
inspector and Calihan only discussed the wire mesh, the trolley
guard and the roof bolts (Tr. 157). They shook some coal out of
the wire mesh. There was still a good layer of trolley guard and
t
were ample roof bolts in place (Tr. 157).
Gary W. Christensen, Emery's safety engineer, testified that
he had traveled through the 20-foot wide entry for over six years
(Tr. 188, 189). The entry had been mined to a width of about 10
feet (Tr. 190).
Emery has been aware of the movement in the area an0 has
matted the roof and installed additional roof bolts. On October
22 Christensen was instructed to check the area for material
pushing against the chain link (Tr. 192). Christensen clipped
the chain, dumped out the coal and rewired the chain link (Tr.
194, 212, 220). As he dumped out the coal the inspector looked
at the surrounding top. Jones pointed out to the witness that
the bolts had pulled through some of the bearing plates. The
plate was still on the top side of the chain link. Christensen
could not see any newer bolts that had been popped off (Tr. 196).
Christensen felt that the new bolts that had been installed
provided adequate support in the area (Tr. 215). The men also
discussed that the chain link was down against the trolley guard
(Tr. 196). Jones indicated he wanted immediate action in abating
the condition (Tr. 197).

934

It took 24 hours to abate the condition; further, additional
bolts were required.
In Christensen's view, this additional
activity wasn't necessary to make the area safe (Tr. 221).
Discussion
I credit MSH~'s evidence in resolving the credibility
conflicts in this case.
During the inspecting of this entry Inspector Jones observed
that four roof bolts had "popped" their plates. This indicated
extreme pressure in the area. In add1tion, there is persuasive
evidence that the condition existed for at least a week, probably
longer. This evidence arises from the inspector's opinion. It
is further supported by the absence of any of the popped plates
laying in the area, as well as from the imprint on the chain link
fencing caused by the plates. In short, the most recently installed roof bolt plates were the ones that failed.
Emery's evidence counters the inspector's view: the
operator's witness felt the bulging in the chain link fencing
presented no long term problem. I agree, the bulging in the
chain link was not pivitol to the violative condition. It merely
served to focus attention on this portion of the entry.
Emery's witnesses further claim the roof, although a problem
area, was adequately supported by the three different sets of
roof bolts installed with mats on different occasions. Some
plates were on the top side of the chain link.
I credit Inspector Jones' contrary evidence and expertise in
this case. Jones has been a coal mine inspector for eleven years.
Prior to becoming an inspector he had fifteen years' experience
as an underground miner including section foreman in the Deer
Creek mine. He also served as a fire boss (Tr. 15-18). At the
time of the inspection he was particularly checking the roof and
rib areas. Witness Tucker further supports the testimony of
inspector Jones.
While Emery's witnesses were experienced in underground
mining I do not consider their expertise to be as persuasive.
In support of its· position, Emery relies on the Commission
decision in Westmoreland Coal Company, 7 FMSHRC 1338 (1985) and
United States Steel Corporation, 6 FMSHRC 1423 (1984). These
cases are offered in support of Emery's argument that there was
no violation and, in any event, no unwarrantable failure.
Emery
argues (Tr. 229-230) that it had taken substantial steps to
control the roof in this area. Further, the problem of the loose

935

coal on the chain link was a recent development.
I agree that
this was a problem area. Three sets of roof bolts are not
installed without a purpose. But it is apparent that the most
recently installed bolts had "popped" their plates. Witness
Jones indicated this condition existed for at least a week.
Witness Caliban agrees that the bearing plates took awhile to
"pop" off (Tr. 181, 186). Finally, the evidence fails to
indicate the· presence of any of the popped plates in the area.
The cases relied on by Emery are not factually controlling.
Here, the roof bolts had shed their plates at least a week before
the citation. Emery's inspectors should have detected this condition. No action was taken. In Westmoreland the Conunission
held there was no "unwarrantable failure" because "each and every
miner who observed the formation before it fell, including the
foreman, attempted to bar it down ..• " 7 FMSHRC at 1342. In the
case at bar an unstable roof was permitted to exist in a travelway for at least a week, probably longer. Emery should have
known of this condition.
The Commission decision in United States Steel Corporation
does not support Emery. To restate the holding in the case at
bar: Emery's failure to correct this defective roof for a week
constituted an unwarrantable failure on its part as that term is
defined by the Commission.
For the reasons herein stated the contest of Citation
2503818 should be dismissed.
WEST 86-36-R
In this case Emery contests Order No. 2503819. MSHA's order
alleges Emery violated 30 C.F.R. § 75.200, the same regulation
allegedly violated in the companion case.
The order reads as follows:
A large loose rib is present along the First South
track at the 3rd West switch. This rib is approximately
six feet high and 25 feet long and has seperated [sic]
from the top and main coal seam. The rib is being supported by steel rib bolts and steel matts however the
weight of the rib has caused several bolts to break or
pull through the bearing plates and matts. Haulage
equipment regularly park along this area while switching
out with equipment traveling to the 3rd West area of the
mine.
Summary of the Evidence
MSHA's Evidence
After issuing the prior citation Inspector Jones continued
on in the same entry to the Third West switch area. At this

936

area a telephone may be used to obtain clearance to proceed (Tr.
57, 58; Exhibit P2). The rib adjacent to the switching track was
clearly fractured the length of its middle; it was undercut; and
it was separated from the top.
Some of the fractures were three
inches wide. The rib had been bolted with 3 pins in an attempt
to secure it (Tr. 59, 60, 66). Only two pins were still
affecting it (Tr. 60). The area.was also experiencing some
subtle settling (Tr. 60).
The inspector was concerned that the rib would come off and
anyone adjacent to it would be crushed (Tr. 60).
He has the
authority to close an area but he did not do so (Tr. 76). After
the rib was taken down, Emery installed seven cribs, side to side
(Tr. 61).
Most of the working section, 200 to 300 men, would use this
route (Tr. 62, 63). Between 10 and 15 locomotive man trips per
shift would stop approximately four feet from the rib (Tr. 63-65).
Frequently men stand near the rib stretching their legs or
sitting in the man trips (Tr. 65).
The rib would have come off if this condition had not been
corrected. A fatality could have occurred (Tr. 69). This
obvious condition had been deteriorating over a period of months
(Tr. 69).
This rib should have been examined by a preshift examiner
(Tr. 70).
MSHA's witness Tucker also stated that the bolted 4 to 5-ton
rib was fractured at the top (Tr. 94). One bolt was hanging
loose; this left one bolt to hold most of it CTr. 95). The rib
was undercut about three feet (Tr. 95). On the side of the
pillar, where the telephone was located, there were two to
three-inch wide cracks running the length of the rib (Tr. 95, 96).
The fracture had existed for some time (Tr. 97).
Management should have known about the rib because it was
obvious and it should have been known to Emery.
In addition, the
miners would also comment about it (Tr. 97-98, 101, 103).
About a year before the MSHA inspection a union inspection
team recommended to the mine foreman that the rib be checked (Tr.
98-101). In the close out conference following the union
inspection Emery said some additional support had been placed on
the rib (Tr. 100).
Emery's Evidence
Emery's witness Kenneth Calihan indicated he travels the
Third West Switch area where this order was issued (Tr. 157).

937

In this area only miners between starting and quitting time
stop to request clearance at the "Y" in the track (Tr. 158, 159).
The rib that was the subject of the MSHA order was 6 foot
high and 25 feet long.
It had four horizontal and one vertical
mat. Conventional r6of bolts done about two years before the
order hold the mats in place (Tr. 159, 161). The vertical mats
go from the top to the bottom and they are crossmatted across the
roof (Tr. 159). The purpose of the pinning and matting is to
hold the rib in place (Tr. 160). If you take it down and widen
the area you would have to add cribs or timber later (Tr. 160).
It was observed by almost anyone passing by the area (Tr. 161).
Fire bosses also walk by this area (Tr. 161). But the mine
foreman.had not received any reports of problems with this area
(Tr. 161, 162).
Caliban didn't think it was necessary to take the rib down
nor was it evident to him that the back was fracturing (Tr. 164).
The rib was taken down, but Caliban felt this was more dangerous
than to leave it up because the worker pulling it down would be
in danger (Tr. 165).
Caliban considers that undercutting was deliberately done by
digging but he ag
there were several one to two foot voids
without foundation under the rib (Tr. 165-167). Calihan could
see a crack in the rib at the roof but he did not know its depth
(Tr. 168). He further observed one loose roof bolt (Tr. 170).
Emery's witness, Gary Christensen, indicated that the Third
West Switch area is about 1500 feet from the 65-66 crosscut (Tr.
188, 197). Christensen called his supervisor, Calihan, from this
area CTr. 197).
Inspector Jones, who was present, brought the
condition of the rib to Christensen's attention (Tr. 198). Jones
said it wasn't adequately supported and Christensen could see
that it had pulled away from the rib at the top.
The rib was
batted, pinned and cross matted (Tr. 199). The mat had pulled
away from the top pin (Tr. 200). He didn't see any cracks in the
rib (Tr. 201-206).
The rib is approximately 15 feet from the switch intersection and about the same distance to the telephone booth (Tr.
202) •
There was no indication of any recent movement of the rib
(Tr. 203) .
Discussion
I credit MSHA's evidence in resolving the credibility
conflicts in this case.
Inspector Jones described the conditions related in the
summary of the evidence. Emery's evidence takes a lesser view of
the seriousness of the problem. But Emery's witnesses basically
confirmed certain physical conditions that establish the vio-

938

lative condition. Witness Calihan confirms that the rib was
undercut and there was a one to two foot "void" under the rib.
There was also a loose roof bolt.
Witness Christensen could see that the rib had pulled away
from the top.
Discussion
The obvious physical condition of the rib was essentially
agreed to by all witnesses. These conditions cause m: to conclude that the rib at this switch area was unstable and not
adequately supported. For these reasons I concur in MSHA's
position that a violation occurred.
Emery argues that it had taken substantial measures to
secure the rib with bolts and mats. Further, it had been stable
and solid for over a two-year period (Tr. 229-230). I disagree.
The unstable condition described by the inspector and witness
Tucker had clearly existed for a long period of time. This was
not a "judgment call 11 as contended by Emery. About a year before
the MSHA inspection, witness Tucker's safety committee recommended to the mine foreman that the rib be checked.
The contest of Order No. 2503819 should be dismissed.
Conclusions of Law
Based on the record and the factual findings made in the
narrative portion of this decision, the following conclusions of
law are entered:
lo

The Commission has jurisdiction to decide this case.

2. Contestant failed to meet its burden of proof in WEST
86-35-R and WEST 86-36-R.
3. Contestant's conduct constituted an unwarrantable
failure to comply with the regulation.
4o

The contests filed herein should be dismissed.
ORDER

Based on the foregoing facts and conclusions of law, I
the following order:
1.

The contest filed in WEST 86-35-R is dismissed.

2.

The contest filed in WEST 86-36-R is dismissed.

Law Judge

939

enter

Distribution:
Timothy Biddle, Esq., Peter K. Levine, Esq., Crowell & Moring,
1100 Connecticut Avenue, NW, Washington, D.C. 20036 (Certified
Mail)
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, ·1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)

/blc

940

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

JUN 111986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. PENN 85-307
A.C. No. 36-02404-03595
:

Greenwich No. 2 Mine
GREENWICH COLLIERIES,
Respondent
ORDER OF DISMISSAL
Before:

Judge Koutras

This proceeding concerns a proposal for assessment of
civil penalty filed by the petitioner against the respondent
pursuant to section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. The petitioner
proposed a civil penalty assessment In the amount of $1,000,
for an alleged violation of mandatory safety standard 30 C.F.R.
§ 75.316, as stated in section 104(d) (2) Order No. 2407481,
April 18, 1986.
This case was docketed for hearing with seven other cases
in Indiana, Pennsylvania, during the hear;ng term June 3, 4,
1986. When the case was called for trial, petitioner's counsel
confirmed that the contested order has been vacated. Counsel
moved that the civil penalty proposal be withdrawn, and that
the case be dismissed.
In support of the motion, counsel
asserted that the inspector relied on an incorrect standard and
that the cited "condition or practice" does not constitute a
violation of the respondent's approved ventilation plan.
After due consideration of the petitioner's oral.motion
to dismiss, IT IS GRANTED, and this case IS DISMISSED.

cl~a~~
941

Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Joseph T. Kosek, Esq., Greenwich Collieries, P.O. Box 367,
Ebensburg, PA 15931 (Certified Mail)
/fb

942

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

JUN 121986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 86-51
A.C. No. 36-02404-03608

v.
Greenwich Collieries No. 2 Mine
GREENWICH COLLIERIES,
Respondent
CONTEST PROCEEDINGS

GREENWICH COLLIERIES,
Contestant

v.

Docket No. PENN 86-7-R
Order No. 2549436; 9/3/85

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

Docket No. PENN 86-8-R
Order No. 2549437; 9/3/85
Docket No. PENN 85-314-R
Order No. 2549335; 8/30/85
Greenwich No. 2 Mine

DECISION AND ORDER OF DISMISSAL
Appearances:

Linda M. Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner/Respondent;
Joseph T. Kosek, Esq., Greenwich Collieries,
Ebensburg, Pennsylvania, for the Respondent/
Contestant.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings were scheduled for hearing
in Indiana, Pennsylvania, during the hearing term June 3-5,
1986, along with several other cases involving these same
parties. Docket No. PENN 86-51, is a civil penalty proceeding

943

initiated by MSHA pursuant to section llO(a} of the Federal
Mine
and Health Act of 1977, 30 U.S.C. § 801 et seq.
MSHA
s civil penalty assessments for five allegea-violations
certain mandatory safety standards found in Part 75,
Title 30, Code of Federal Regulations, as charged in five
section 104(d) (2) orders, with special "S&S" findings, served
on the respondent Greenwich Collieries in August and September
1985. Docket Nos. PENN 85-314-R, PENN 86-7-R and PENN 86-8-R,
are
contests filed by Greenwich Collieries challenging
the legality of three of the orders (2548335, 2549436, and
2549437).
Discussion
The conditions or practices cited as alleged violations
in these proceedings are as follows:
Order No. 2549419 - August 22, 1985, 30 C.F.R.
75.516-2(c). Additional insulation was not provided for the communication circuit (twist wires)
where they crossed over and under power cables in
the track entry leading to
M3 tailgate of the
MS longwall working section. This telephone wire
was twisted around 550 volt pump cables at the
stribution box at the M3 #2 crossbelt. This box
was placed in this area on 8-21-85 and the telephone wire should have been seen. This telephone
wire also crossed 550 volt pump cables in the
track entry and certified persons should have seen
this condition.
§

No. 2549335 - August 30, 1985, 30 C.F.R.
An accumulation of combustible material
of paper, rags, and card board boxes
was allowed to exist in the f
crosscut inby
the M-2 track switch, within 8-1/2 feet of the
energized trolley wire 250
D/C power. The
cardboard boxes measured with a standard rule
1-1/2 x 2 foot in width, 3
in length. There
were 8 of them with fiberglass insulation in them.
There were also several smaller cardboard boxes
filled with paper and rags
this area. This area
was preshifted on the 4 to 12 p.m. shift at 10:00
hours, R.B. on the 8/29/85.

944

Order No. 2549436 - September 3, 1985, 30 C.F.R.
75.202. Loose not adequately supported roof was
present along the M-14 track entry beginning at the
return overcast and extending inby 42' to spad 76.36.
The roof in this area was broken in several places
and contained a cutter along the left rib of which
4" to 6 11 of rock fell out. The roof supports in this
area, posts and bolts, showed sign of pressure on them.
This area is examined each shift during the preshift
examination.
§

Order No. 2549437 - September 3, 1985, 30 C.F.R.
75.303(a}. An adequate preshift examination was
not conducted in the M-14 area of the mine in that
an obvious violation and hazardous condition existed
along the M-14 track entry and this condition had
not been reported or recorded in the book provided
for this purpose on the surface. This area was pre~
shifted on the 12:01 a.m. to 8 a.m. shift on 9/3/85
by Donald Schroyer.
It was apparent that this condition existed for a period of time.
§

Order No. 2404348 - September 16, 1985, 30 C.F.R.
75.400. An accumulation of combustible materials
(lunch wrappers and wax paper) were thrown on the
mine bottom in the last open crosscut off of the L-1
entry in the M-5 longwall section ID No. 004. The
crosscut is used for the men eating dinner.
§

When these dockets were called for trial, the parties
advised me that they had reached a settlement of all of the
contested violations, and pursuant to Commission Rule 30,
29 C.F.R. § 2700.30, they jointly moved for approval of the
proposed settlement. The parties were afforded an opportunity
to present their proposals on the record, and the proposed
settlement disposition is as follows:
Order No.

Date

30 C.F.R.
Section

2549419
2549335
2549436
2549437
2404348

8/22/85
8/30/85
9/3/85
9/3/85
9/16/85

75.516-2(c)
75.400
75.202
75.303(a)
75.400

945

Assessment
$

500
800
1,000
1,000
500

Settlement
$

100
400
1,000
1,000
250

The respondent agreed to pay the full amount of the
$1,000 civil penalty assessments for section 104(d) (2) Order
Nos. 2549436 and 2549437, issued on September 3, 1985.
With regard to Order No. 2549335, petitioner's counsel
asserted that the cited accumulations of trash in question
were placed in the entry to be picked up by a tractor and
removed from the mine, but were cited by the inspector before
this could be done. Under the circumstances, counsel suggests
that the degree of negligence is not as high as originally
believed, and that the proposed settlement qf $400 for the
violation is not unreasonable.
With regard to Order No. 2404348, petitioner's counsel
pointed out that the cited accumulations consisted of paper
materials discarded by the miners immediately after eating
their dinner on the shift prior to the inspection. Counsel
believes that the proposed settlement of $250 is reasonable
under the circumstances.
With regard to Order No. 2549419, petitioner's counsel
asserted that the gravity was low and that it was unlikely
that the cited condition would result in an accident or injury.
Under the circumstances, counsel believed that the agreed upon
settlement of $100 is reasonable.
The parties agreed that the respondent is a medium to
large size mine operator employing 700 miners at all of its
operations, and that its annual coal production was approximately two million tons.
They also agreed that the annual
production for the No. 2 Mine is approximately 877,000 tons,
and that the payment of the civil penalties in question will
not adversely affect the respondent's ability to continue in
business.
The parties agreed that all of the violations were abated
in good faith within the times fixed by the inspectors.
Petitioner's counsel confirmed that the respondent's history
.of prior violations consists of 245 paid assessments for the
first 9 months of 1985, 214 in 1984, and 155 in 1983.
Conclusion
After careful review and consideration of the pleadings,
and arguments made in support of the joint oral motion to
approve the proposed settlement disposition of this case, I

946

conclude and find that it is reasonable and in the public
interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, the
motion IS GRANTED, and the settlement IS APPROVED.
ORDER
The respondent IS ORDERED to pay civil penalties in the
settlement amounts shown above within thirty (30) days of the
date of this decision. Upon receipt of payment by MSHA this
matter is dismissed.
In view of the settlement disposition of the civil penalty
case, including the disputed orders in question which were
contested, Contest Docket Nos. PENN 85-314-R, PENN 86-7-R, and
PENN 86-8-R, ARE DISMISSED.

~~g~

~!istrative Law Judge
Distribution:
Linda M. Henry, Esq., Office
of Labor, Room 14480 Gateway
Philadelphia, PA 19104 (

the Solicitor, U.S. Department
lding, 3535 Market Street,
Mail)

Joseph T. Kosek, Esq., Greenwich Collieries, P.O. Box 367,
Ebensburg, PA 15931 (Certified Mail)
/fb

947

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

June 13, 1986

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

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 86-56
A.C. No. 33-00968-03629

v.
YOUGHIOGHENY AND OHIO COAL
COMPANY,
Respondent
YOUGHIOGHENY & OHIO COAL
COMPANY,
Contestant

v.

Docket No. LAKE 86-57
A.C. No. 33-00968-03630

.

Nelms No. 2 Mine
CONTEST PROCEEDINGS

.

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

Docket No. LAKE 86-20-R
Order No. 2823802; 10/17/85
Docket No. LAKE 86-21-R
Order No. 2823806; 10/28/85
Docket No. LAKE 86-30-R
Order No. 2823831; 11/19/85
Nelms No. 2 Mine

DECISION
Appearances:

Patrick M. Zohn, Esq., Office of the Solicitor,
U"S. Department of Labor, Cleveland, Ohio for
the Secretary of Labor;
Robert Co Kota, Esq.~ St. Clairsville, Ohio for
Youghiogheny & Ohio coal Company.

Before:

Judge Melick

These consolidated cases are before me under section
105(d/ of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et. ~, the "Act," to challenge citations and
withdrawal orders issued by the Secretary of Labor to the
Youghiogheny & Ohio Coal Company (Y&O).

948

Withdrawal Order No. 2823806 issued under the provisions
of section 104(d)(l) of the Act,l/ alleges violations of the
mine operator's roof control plan under the regulatory standard at 30 C.F.R. § 75.200. As subsequently modified the
order charges as follows:
The roof control plan was again not complied with
in the 3 section of main East at the following locations:
Cl) "A" Entry - the one row of temporary
roof supports were installed 60 inches, 67 inches,
70 inches and 62 inches from the face and another
row of temporary roof supports was required to be
installed in this area prior to installing the last
row of bolts in this entry at that time.
(2) "D"
Entry - the last temporary roof supports in the
second row of supports which was in the right side
of the entry was [sic] 90 inches from the right rib
leaving unsupported roof 78 inches from the first
row temporary roof support on the right side of the
entry to the face (78 inches X 90 inch area) and
requiring another temporary roof support prior to
bolting.
(3) D - E crosscut - in the second row of
temporary row of roof support, one was 20 inches
from the other, width wise, and the last support on
the right side was 96 inches from the right rib
leaving unsupported roof 22 inches from the first
l;section 104Cd)(l) of the Act reads as followsg
nrf, upon any inspection of a coal or other mine, an
authorized representative of.the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
by such violation do not cause imminent danger, such
violation is of such r:ature as could significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation
given to the operator under this Act.
If, during the same
inspection or any subsequent inspection of such mine within
90 days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of
any mandatory health or s ety standard and finds such violation to be also caused by an unwarrantalbe failure of such
operator to so comply, he shall forthwith issue an order
requiring the operator to cause all persons in the area
affected by such violation, except those persons refered to
in subsection (c) to be withdrawn from, and to
prohibited
from entering such area until an authorized representative of
the Secretary determines that such violation has been abated."

-

949

row temporary roof support to the face (72 inches X 96 inch
area) and requiring another temporary roof support prior to
bolting.
Y&O does not dispute the factual allegations set forth
in the order nor that these facts constitute violations of
its roof control plan page 57 (Appendix A).2/ It argues only
that the violations were not "significant and substantial"
and were not caused by its "unwarrantable failure" to comply
with the roof control plan.
A violation is "significant and substantial" if Cl) there
is an underlying violation of a mandatory safety standard,
(2) there is a discrete safety hazard, (3) there is a reasonable likelihood that the hazard contributed to will result in
injury, and (4) there is a reasonable likelihood that the
injury in question will be of a reasonably serious nature.
Secretary v. Mathies Coal Company, 6 FMSHRC l (1984).
In this regard MSHA coal mine inspector Franklin Homko
testified that there had been 17 roof falls during 1985 at
the Nelms No. 2 Mine and that two of those roof falls had
occurred in the No. 3 section at issue. Based on this
history and the noted deviations from the requirements of the
roof control plan Homko opined that it was reasonably likely
that a partial or complete roof fall could occur in the area
cited. He further opined that should a roof fall occur it
was reasonably likely that miners working beneath the roof
would receive serious or fatal injuries.
Assistant Y&O safety director Lawrence Wehr acknowledged
that the right side of the crosscut between the D and E
Entries and the D Entry itself were not adequately supported
and in· fact were "dangerous". Under the circumstances I find
that the violation was "significant and substantial" and
serious.
Unwarrantable failure is defined as the failure by an
operator to abate a condition that he knew or should have
known existed, or the failure to abate because of indifference or lack of due diligence or reasonable care. Ziegler
Coal Corp., 7 IBMA 280 (1977); United States Steel Corp., 6
FMSHRC 1423 (1984)"
In this regard it is not disputed that
Inspector Homko had, only 3 days before the issuance of the

2; Y&O understandably did not object to the multiplicity of
charges set forth in the orders before me Cl6 separate violations charged in the two orders). To the extent that such
multiple charges prevent separate "significant and substantial" and "unwarrantable failure" findings for each violation
the practice may short circuit several important enforcement
mechanisms created by the Act.
950

order at bar, cited a similar violation of the operator's
roof control plan in the same entries now at issue. The
repetition of the same type of violation within such a short
time shows indifference or lack of due diligence or reasonable care.
In addition Homko observed that the cited violative conditions had not been reported in the required on-shift and
pre-shift reports from October 27, 1985, at 12 p.m. through
the time he issued the order at bar on October 28. It is not
disputed that the cited area was subject· to pre-shift and
on-shift examinations to be performed by state certified
persons such as a section foreman or fire boss and that any
defects in roof control must be documented in these reports.
Homko also observed that notation cards placed in the section
and initialed and dated by the certified inspectors showed
that the inspections had been performed after 4:00 pm on the
27th of October. The failure of these certified inspectors
to have discovered and reported these violative conditions
that from their nature should have been fairly obvious, leads
me to also conclude that the operator should have known of
the cited violations.
Under the circumstances I find that the violation was
caused by the "unwarrantable failure" of the operator to
comply with the standard. Based on the same evidence I find
that the mine operator was negligent. Even though some of
the certified inspectors who failed to detect the violation
may have been union employees they were clearly acting as
agents of the operator while performing these pre-shift and
on-shift inspections. The negligence is in any case therefore attributable to the operator.
Withdrawal Order No. 2823831, issued under section
104(d)(l) of the Act, footnote l supra, alleges 8 other
violations of the operator's roof control plan under 30
C.F.R. § 75.200 and charges as follows:
The roof control plan was not complied with in the
following rooms off "E" Entry of 5 section:
(1) 71
room - the last cut in this room had a cut taken on
the straight and th~n cut to the left and right of
the room for the width of the miner leaving an area
of more than 20 feet wide inby the last row of
bolts (Fan type cut at face}. This type of side
cutting is not supported on either side before work
is done in or inby this area similar to an intersection but not mined to create one.
(2) 72 room same condition or practice as in No. 71 room, but
the right cut holed into unsupported roof fan cut
f rorn the No. 71 room.
There was only one post and
a danger board installed outby the cut.
(3) 73
room - the last cut in this room was also a fan

951

type cut from the straight to the left side leaving
cut over 21-1/2 feet in width. There was only one
post and danger board installed outby the cut. T.
Carter, section foreman, supervised mining of the
No. 73 room and J. Marshall, section forman, mined
the the No. 71 and 72 room.
The Secretary contends that the order charges 8 separate
of the plan, namely:
Cl> in room 71 the cut taken
to the left off the last straight cut1 (2) in room 71 the cut
taken to the right off the last straight cut; C3) in room 72
in referring to the "same condition or practice as in No. 71
room" the order refers to the cut taken to the left off the
last straight cut1 C4) in room 72 the cut taken to the right
off the last straight cut; (5) the right side cut in the 72
room was cut so that it holed into the 71 room into unsupported roof created by the left side cut taken in the 71
room; (6) in the 72 room only one post and a danger board
were installed outby the cut; (7) in room 73 the cut taken to
the left off the last straight cut; and (8) in the 73 room
only one post and a danger board were installed outby the
cut.
violat~ons

It is undisputed that the cited cuts were taken in a
manner depicted on Exhibit GX-8 (Appendix B). Y&O acknowledges that it did not have a sufficient number of posts set
with a danger sign in rooms 72 and 73 but maintains that it
did have the requisite danger sign posted and that therefore
this admitted violation constituted a mere technicality and a
non "significant and substantial" violation. Y&O denies all
other alleged violations of the roof control plan.
The Secretary first alleges that the cut taken to the
t (violation No. 1) and the cut taken to the right (violaon No. 2) in room 71 violated provisions 16 and 19 on pages
5 and 56 of the roof control plan and also violated the 20
foot room width requirments set forth on page 51 of the roof
control plan. Provision 19 on page 56 of the roof control
.,:Jlan as clarified at hearing by agreement of the parties
;,>rranscript 220-224) provides that "the last projected cut in
room or crosscuts not to be used as travelways need not be
supported if the entrance to such areas are [sic] posted off
th one row of supports installed on a maximum of five (5)
foot centers and ~DANGER signs placed." The Secretary
argues in its post hearing brief that since the provision for
the "last projected cut" is expressed in the singular only
cne cut is permitted and that the side cuts to the right and
to the left were therefore in excess of the one allowed by
provision 19.
1

Y&O points out on the other hand that provision No. 16
on page 56 of the roof control plan specifically allows fan
or side cuts (in the plural) and only requires support if

952

work is to be done in or inby. Provision 16 on pa~e 55 of
the plan reads as relevant hereto as follows:
Side cuts will be started only in areas that are
permanently supported. The first side cut on
either side of a room or entry will be supported by
either temporary or permanent supports before any
work is done in or inby the intersection.
Y&O maintains that it complied with provision No. 16 because
the continuous miner operator was under supported roof when
the sidecuts were made and no other work was to be done in or
inby since mining had been completed in that area. Y&O also
points out that the sidecuts were in fact begun in areas that
were permanently supported as required by provision 16 and as
evidenced by roof bolts shown in the diagrams in evidence.
The secretary next maintains that if the operator
intends to take a side cut it must support the roof not only
in accordance with provision 16 but also in accordance with
the instructions and diagram found on page 57 (Appendix A).
Y&O counters however by pointing out that the diagram on page
57 is applicable only to advancing sections and is not applicable under the specific exceptions set forth in provision 16
on page 56 of the plan.
The Secretary argues, finally, that there was nevertheless a violation of the plan because Y&O exceeded the maximum
room width allowance of 20 feet set forth on page 51 of the
roof control plan. Y&O maintains on the other hand that the
cited fan cuts were equivalent to crosscuts and accordingly
the corresponding room size in those locations must necessarily exceed the 20 foot maximum width otherwise required by
the roof control plan.
Upon my own independent examination of the provisions of
the roof control plan I find that the interpretations place
upon it by Y&O are the more rational and convincing.
Accordingly the number 1, 2, 3, 4, and 7 violations have not
been proven as charged.
The Secretary maintains that alleged violation No. 5
i.e., the right sidecut in the 72 room was cut so that it
holed into the 71 room into unsupported roof created by the
left side cut taken in the 71 room, was in violation of
provision 15(a) on page 55 of the roof control plan. That
provision requires that "mine openings will not be cut
through to areas that are not totally supported by either
temporary supports on maximum of five (5) foot centers or
permanent supports installed on pattern as required by the
approved plan.
It is not disputed that the right side cut in room 72

953

had indeed been holed through into the left side cut of room
71 and that the left sidecut of room 71 had not been supported by either temporary or permanent supports.
I do not
find that provision 15Ca) is limited to advancing sections
and accordingly I find that the violation has been proven has
charged. According to the undisputed testimony of Inspector
Homko the greates~ hazard of room falls was presented by this
holed through area because it exposed a much larger area of
unsupported roof. This testimony is not disputed and accordingly I find that the violation was "significant and substantial." Mathies Coal Company, supra.
I also find that this violation was caused by the
"unwarrantable failure" of the operator to comply with the
roof control plan. Indeed the operator's excuses that it was
necessary to hole through to provide ventilation and that it
did not intend to mine any additional coal after holing
through provides no defense or justification for the clear
violation. There are no exceptions for the requirements of
provision 15(a) and the operator clearly should have known of
the violation.
Indeed it is not disputed that two section
foremen were actually cutting the side cuts in the manner
cited. The violation was thus caused by the "unwarrantable
failure" of the operator to comply with the cited provisions
of the roof control plan and was the result of a high degree
of negligence.
Ziegler Coal Corp., supra, United States
steel Corp, supra.
Inasmuch as Y&O has admitted to the number 6 and 8 violations in that it has conceeded that it did not have the "row
of supports installed on a maximum of 5 foot centers and
9
DANGER' signs placed" thereon in the No. 72 and 73 rooms,
those violations are proven as charged. It is conceded however £hat these "supports" are not designed for actual roof
support but are intended only to warn persons from entering a
dangerous area.
It is also acknowledged that in this case
one support had been placed at the center of the entrance to
each of the rooms and that "danger" signs were hung on those
supports warning persons not to enter the rooms. Under the
circumstances I do not find that the violation was "significant and substantial" Mathies Coal Company, supra. Since
the placement of the danger signs was also in substantial
compliance with the requirements of the roof control plan, I
do not find that the violation was caused by the "unwarrantable failure" of the mine operator to comply with the plan.
Since at least one of the eight cited violations (violation No. 5) has been proven as charged with attendant "significant and substantial" and "unwarrantable failure" findings,
section 104(d)(l) order No. 2823821 is affirmed.
In determining the appropriate penalties to be assessed
in this case I have also considered that the mine operator

954

abated the cited conditions in a timely and good faith
manner, that the mine operator is moderate in size and that
it has a substantial history of violations. There is no
evidence that the penalties I am assessing herein would have
any effect on the operators ability to stay in business.
Accordingly I find that a penalty of $800 is appropriate for
the violations found in Order No. 2823806 and a penalty of
$500 for the violations found in Order No. 28238031.
At hearing the parties agreed to ·settle the remaining
citations at issue i.e., Citation Nos. 2023802 and 2825317.
Y&O agreed to pay the penalty of $147 initially proposed by
the Secretary for the former citation and agreed to pay $25
(a reduction of $60) for the violation charged in latter citation. I have considered the documentation and representations presented in support of the settlement and find that
the proposal is appropriate under the criteria set forth in
section llO(i) of the Act.
ORDER
The Youghiogheny and Ohio Coal Company is hereby ordered
to pay civil penalties of $1,472 within 30 days of the date
of this decision. Contest Procee9ings Docket Nos. LAKE 86-20-R
and LAKE 86-21-R are dismissed. Contest Proceeding Docket No.
LAKE 86-30-R is granted in part and denied in art in accordance with the decision herein.

Distribution:
Patrick M. Zohn, Esq., Office of the
licitor.1 U.S. Department of Labor, 881 Federal Office Builaing, 1240 East Ninth
Street, Cleveland, OH 44199 (Certified Mail)
Robert C. Kota, Esq., Youghiogheny & Ohio Coal Company, P.O.
Box 1000, St. Clairsville, OH 43950 (Certified Mail)
rbg

955

... -

g

,...

.. .• ' l ...........

':',

•

A.

APPENDIX A

TEMP.

SUPPORT

+ ROOF BOLT

SKETCH 3
BOLTING SilO'.ffi IS TII E MHIH!UM FOR WORKHiG PLACS::;.

20"

ADDITIONAL BOLTS WILL BE INSTALLED FOR UNUSUAL

CONDITIONS.

TIIE DISTANCE FROM mtE BOLT TO TH~;

NEXT BOLT OR TO THE RIB WILL NE1(ER EXCEED 4 FEST.
~

BREAKTHROl.!:HS WILL NOT BE TIJR.NED OFF ROOMS l.J1iTIL
THE ROOM IS BOLTED, NOR WILL BRE:AKTHRCOCHS BE

SEQUENCE OF BOLTING

WIT!! SINGLE: BOOM BOLTERS
WILL BE FROM LEFT TO RIGHT A5 FOLLOWS: Si::T
TEMPORARY PCSTS OR JACKS A,B,G,D,E, AND F

(5 ri.

l"tAXIMUM DISTANCE FROM BOLTS, :UB O:t OTHEfl PCST).

INSTALL ROOF BOLTS 1,2,J, and 4. (4 FT. 1-L.\XHri.J!·:
DISTANCE FROM LAST RO'..i OF BOLTS, 4 FT. BETtlEEN
BOLTS ANO NOT OVER 4 FT. FROM RIB).

MOVE POSTS

A,B, AND C to LOCATIONS G,H, and I, AND INSTALL

BOLTS

5,6, 7, ~nd 8.

CONTINUE MOVING TEMPORA:IY

POSTS TO NEW LOCATIONS AND IKSTALLING BOL'W lJNTil

BOLTS ARE INSTALLED TO WIT'nIN 4 FEET OF THE FACE.
DRIVING DISTANCE
THE LENGTII OF' CONTINUOUS MINER ADVANCE AFTSR
BOLTING WILL BE LIMITED TO A DISTANCE WHICH WILL
KE:EP THE MINER OPERATOR UNDER THE LAST ROW OF
BOLTS.

l ~s+

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71

-

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Svpfor1~r(

A 11

-&-

X -

Le.9ef\ol

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

JUN 131986
RONALD E. MCKINNEY,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. WEVA 86-92-D
MSHA Case No. HOPE CD 86-3

EASTERN ASSOCIATED COAL
CORPORATION,
Respondent

Keystone No. 2 Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This is a discrimination proceeding initiated by the
complainant Ronald E. McKinney against the respondent pursuant to section lOS(c) of the Federal Mine Safety and Health
Act of 1977, alleging that the respondent discriminated
against him by discharging him for exercising certain rights
afforded him under the Act. Mr. McKinney's initial complaint
was investigated by MSHA, and it declined to file a formal
complaint with this Commission. Mr. McKinney subsequently
retained private counsel who filed this action on his behalf.
This matter was scheduled for a hearing on the merits in
Beckley 1 West Virginia, on June 19, 1986. By motion filed
June 5, 1986, Mr. McKinney's counsel requested leave to withdraw the complaint on the ground that the parties have fully
resolved their differences and have settled the matter. The
terms of the settlement agreement are set forth in a four
page agreement executed by Mr. McKinney and counsel for the
parties, and they all agree that the settlement terms are fair
and proper.
The respondent has agreed to make a lump sum payment to
Mr. McKinney in complete satisfaction of all claims against
the respondent, and to change its employment termination
records from a discharge of McKinney to reflect a voluntary
resignation.
The respondent also agrees that upon receipt of
any future job reference requests on Mr. McKinney's behalf,

958

it will provide information concerning his dates of employment
and job classifications while in the respondent's employ,
safety and attendance ratings of "satisfactory," and information reflecting that he is not eligible for rehire due to his
voluntary resignation.
Conclusion
After careful review and consideration of the settlement
terms and conditions executed by the parties in this proceeding,
including Mr. McKinney, I conclude and find that it reflects a
reasonable resolution of his complaint. Since it seems clear
to me that all parties are in accord with the agreed upon
settlement disposition of the complaint, I see no reason why it
should not be approved.
ORDER
The proposed settlement IS APPROVED. Respondent IS ORDERED
AND DIRECTED to fully comply forthwith with the terms of the
agreement. Upon full and complete compliance with the terms of
the agreement, this matter is dismissed.

1~A.~~
Administrative Law Judge

Distribution:
Kathryn R. Bayless, Esq., Bayless & Wills, 1625 North Walker
Street, Princeton, WV 24740 (Certified Mail)
Sally S. Rock, Esq., Eastern Associated Coal Corporation,
One PPG Place, Pittsburgh, PA 15222 (Certified Mail)

/fb

959

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

JUN 161986

.
.
.

QUARTO MINING COMPANY,
Contestant

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

CONTEST PROCEEDING
Docket No. LAKE 85-72-R
Citation No. 2330910; 4/8/85
Powhatan No. 4 Mine

.
.
..

CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 85-97
A.C. No. 33-01157-03732

v.

Powhatan No. 4 Mine

.
..

QUARTO MINING COMPANY,
Respondent

DECISION
Appearances:

Timothy M. Biddle, Esq., and Thomas C. Means, Esq.~
Crowell & Moring, Washington, D.C. for Contestant/
Respondent Quarto Mining Company (Quarto);
Edward H. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia for
Respondent/Petitioner Secretary of Labor
(Secretary)

Before:

Judge Broderick

STATEMENT OF THE CASE
This is a consolidated contest and civil penalty proceeding,
in which Quarto challenges the validity of a citation alleging a
violation of 30 C.F.R. § 75.1106-2, and the Secretary seeks a
civil penalty for the alleged violation. The parties have
submitted the case on stipulated facts, including joint exhibits,
Following submission of the stipulation, Quarto filed a Motion
for Summary Decision and the Secretary filed a Cross Motion for
Summary Decision. Both parties have submitted legal briefs.
I
accept the stipulation of facts as constituting the facts in the

960

case, and have carefully considered the contentions of the
parties.
FINDINGS OF FACT
Based on the stipulation, I find the following facts:
Quarto is the operator of an underground coal mine in Monroe
County, Ohio, known as the Powhatan No. 4 Mine.
It produces coal
which enters and affects interstate commerce. Quarto is a large
operator and has an average history of prior violations. It has
had no previous violations of the standard involved in these
proceedings. Payment of a civil penalty for the alleged
violation will not adversely affect Quarto's ability to continue
in business.
On April 6, 1985, as it had done previously, Quarto placed a
heavy-duty metal acetylene cylinder and an oxygen gas cylinder on
a longwall chain conveyor to be moved along the conveyor trough
toward the headgate of the longwall. The cylinders were placed
in the confines of a metal chain haul conveyor flight, resting on
the chains. They were not placed in any special devices designed
to hold the cylinders in place during transit. As the acetylene
cylinder travelled along the trough of the chain conveyor, it
caught against a piece of metal protruding from one of the sides
of the stationary trough. The cylinder ruptured causing an
explosion. Seven miners suffered first, second, and/or third
degrees burns to the upper body and were taken to a hospital.
MSHA officials conducted an investigation of the accident on
Saturday, April 6, 1985. A citation was issued at 3:40 p.m. on
Monday, April 8 alleging a violation of 30 C.F.R.
§ 75.1106-2(a)(l).
Issuance of the citation was delayed in part
because of MSHA's ~ncertainty whether the standard applied to
longwall chain conveyors. MSHA had not previously issued a
citation or order to any operator applying the standard to
longwall chain conveyors, and no policy memoranda or other
interpretive document had been issued stating that the standard
applied to longwall chain conveyors.
A chain conveyor, such as was on the longwall here, moves
material by mechanically pushing it across a stationary surface,
the trough. The material is pushed through the trough by a
series of regularly placed flights attached to the moving chains.
In moving coal after it is cut from the face, the chain conveyor
clears the cut coal and deposits it on a belt conveyor by a stage
loader at the end of the chain conveyor. A belt conveyor, as
distinguished from a chain conveyor, provides a moving surface
Cthe belt) on which material is placed and transported.

961

Quarto had rio policy or practice concerning the
transportation of compressed gas cylinders on longwall chain
conveyors, but did not believe that any mandatory standard
prohibited or otherwise regulated the practice. Devices
generally designed to hold a compressed gas cylinder in place
during transit on self-propelled equipment or belt conveyors
would not work on a longwall chain conveyor. After the citation
involved here was issued, Quarto demonstrated good faith in
abating the alleged violation within the time set for abatement.
REGULATION
30 C.F.R. § 75.1106-2(a)(l) provides as follows:
(a) Liquif ied and nonliquified compressed gas cylinders
transported into or through an underground coal mine shall be:
(1) placed securely in devices designed to
hold the cylinder in place during transit on selfpropelled equipment or belt conveyors1
ISSUES
1. Does the mandatory standard apply only to the
transportation of compressed gas cylinders on self-propelled
equipment or belt conveyors?
2. Do the facts establish that the longwall chain conveyor
was self-propelled equipment?
3. Do the facts establish that the longwall chain conveyor
was a belt conveyor?
4"
If a violation of the mandatory standard is established,
what is the appropriate penalty?
CONCLUSIONS OF LAW
JURISDICTION
Quarto was subject to the provisions of the Federal Mine
Safety and Health Act of 1977 (the Act) in the operation of the
Powhatan No. 4 Mine, and I have jurisdiction over the parties and
subject matter of this proceeding.
INTERPRETATION OF REGULATIONS
The Secretary argues that the Act and the regulations
promulgated under it should be liberally construed to promote
their purpose in preserving life and health. Quarto concedes

962

that Court decisions support a liberal construction of the Act to
promote its purpose, but denies that the rule of liberal
construction applies to the Secretary's regulations. It is
clear, and Quarto does not contend otherwise, that
broadly-phrased standards are necessary, and are to be tested by
whether they inform a reasonably prudent person that the
.condition or conduct involved was prohibited by the standard.
Secretary v. Mathies Coal Comapny, 5 FMSHRC 300 (1983); Secretary
v. Alabama By-Products Corp., 4 FMSHRC 2128 (1982). The basic
rule of interpretation of a mandatory standard, however, is "the
plain langauge of the regulation. Absent a clearly expresssed
legislative or regulatory intent to the contrary, that language
ordinarily is conclusive." Secretary v. Freeman United coal
Mining Company, 6 FMSHRC 1577 (1984). As an aid in interpreting
the language of a regulation, it should be read "in the context
.of the preventive purpose of the statute." See Secretary v.
United States Steel Corporation, 5 FMSHRC 3, 5 (1983). When the
violation of a regulation results in the imposition of a penalty,
however, the rule of liberal construction must give way to the
requirement that the regulation give fair notice of the
prohibited conduct. Diamond Roofing Co. v. OSHRC, 528 F.2d 645
(5th Cir. 1976); Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189 (9th
Cir. 1982); Gates & Fox Company v. OSHRC, No. 80-1446 CD •• C. Cir.
May 13, 1986). Therefore, I look first to the language of the
regulation involved here to determine whether it fairly gives
notice that the conduct complained of is prohibited by the
regulation.
BREADTH OF THE REGULATION
The mandatory standard in issue here attempts to regulate
the transportation of compressed gas cylinders:
It requires that
they be disconnected from hoses and gages; that they be labeled
"empty" when the gas has been expended; that they may not be
transported on mantrips; and, Cl) during transit on
self-propelled equipment or belt conveyors, that they be placed
securely in devices designed to hold them in place, (2) during
transit by trolley wire haulage, that they be placed in well
insulated and substantially constructed containers specifically
designed for holding them.
Because the standard specifically refers to certain modes of
transportation: self-propelled equipment, belt conveyors, trolley
haulage, mantrips, I conclude that other forms of transportation
(assuming there are any) of gas cylinders are not regulated by
the standard.
SELF-PROPELLED EQUIPMENT

963

The Secretary asserts that the chain conveyor involved here
is a piece of self-propelled equipment, because "the chain and
flights clearly are self-propelled along the trough," and "the
chain conveyor is an integral part of the longwall mining unit
which is also self-propelled equipment." Quarto argues that the
basis for the citation was the transportation of cylinders on a
conveyor, and the Secretary is precluded from now changing the
basis of the citation.
It also argues that the chain conveyor is
not self-propelled equipment. Addressing the latter issue, it is
clear to me, and I conclude, that a longwall chain conveyor is
not self-propelled equipment.
Part 75 of the regulations (safety
standards in underground coal mines) uses the term self-propelled
in referring to self-propelled electric face equipment such as
cutting machines, shuttle cars, battery powered machines, and
roof drills and bolters (75.523), in referring to a
self-propelled mantrip car C75.1100-2Cd)), in requiring that
operators face in the direction of travel (75.1403-10-(j)), and
that self-propelled rubber tired haulage equipment have adequate
brakes, lights and a warning device (75.1403-lOCe)), in requiring
cabs and canopies for self-propelled electric face equipment
(75.1710-1). The term self-propelled equipment thus refers to
equipment which has its own source of power, which moves from
place to place, and which (ordinarily at least) has an operator.
A conveyor is not such a piece of equipment.
CHAIN CONVEYOR-BELT CONVEYOR
The terms chain conveyor and belt conveyor are not defined
in the Secretary's regulations. They are defined in the
Dictionary of Mining, Mineral and Related Terms (United States
Department of the Interior, 1968) as follows:
Chain conveyor; scraper chain conveyor. A conveyor
comprising one or two endless linked chains with
crossbars or flights at intervals to move the coal or
mineral.
The loaded side of the conveyor runs in a
metal trough while the empty side returns along guides
underneath. The material is transported on the
conveyor partly by riding on the chains and flights and
partly by being scraped along in the trough • • .
Belt conveyor. A moving endless belt that rides on rollers
and on which coal or other materials can be carried for
various distances. The principal parts of a belt conveyor
are (1) a belt to carry the load and transmit the pull, (2)
a driving unit, (3) a supporting structure and idler rollers
between the terminal drums, and (4) accessories . • •
These definitions are consistent with the stipulations (10
and 11) submitted in this proceeding, and very clearly are

964

describing two different things, which operate in quite different
ways. The "plain language" of the regulation would therefore
seem to preclude applying it to a chain conveyor. More
importantly, devices generally designed to hold cylinders in
place during transit on belt conveyors "would not work on a
longwall chain conveyor."
(Stipulation 25). Obviously,
therefore, in promulgating the regulation involved here, the
Secretary did not intend to treat chain conveyors as the same as
or equivalent to belt conveyors.
The Secretary argues that it was clearly hazardous to move a
compressed gas cylinder by mechanically pushing it along a chain
conveyor. And indeed it was hazardous, and caused multiple
·
injuries. It may be that transportation of such cylinders on
chain conveyors should be banned. But that is not the issue
before me. Rather the issue is whether such transportation comes
within the regulation cited, that is, whether the regulation
fairly notifies the operator that it encompasses transportation
by chain conveyor. I conclude that it does not. Therefore, I
conclude that the mandatory standard in 30 C.F.R. §
75.1106-2(a)(l) does not apply to the transportation of
compressed gas cylinders on longwall chain conveyors. The
citation contested here was therefore invalidly issued.
ORDER
Based on the above findings of fact and conclusions of law
IT IS ORDERED that citation 2330910 issued to Quarto on April 8,
1985 is VACATED.
IT IS FURTHER ORDERED that the petition for
assessment of civil penalty is DENIED.

l·tM{
)

~ ;ftv&rz€;i

James A. Broderick
Administrative Law Judge

Distribution:
Timothy M. Biddle, Esq., Thomas c. Means, Esq., Crowell & Moring,
1100 Connecticut Ave., N.W., Washington, o.c. 20036 (Certified
Mail)
Edward H. Fitch, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
slk

965

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

JUN 171986
DISCRIMINATION PROCEEDING

ODELL MAGGARD,
Complainant

v.

.

Docket No. KENT 86-1-D
MSHA Case No. BARB CD 85-48

CHANEY CREEK COAL CORPORATION,:
Respondent
:
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
ODELL MAGGARD,
Complainant

v.

No. 3 Mine
DISCRIMINATION PROCEEDING
Docket No. KENT 86-51-D
MSHA Case No. BARB CD 85-48

..
.
.

No. 3 Mine

DOLLAR BRANCH COAL
CORPORATION,
and
CHANEY CREEK COAL CORPORATION,:
Respondents
:

DECISION
Appearances:

Tony Oppegard, Esq., Appalachian Research &
Defense Fund of Kentucky, Inc., Hazard,
Kentucky, for Odell Maggard;
Joseph B. Luckett, Esq., Office of the
Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for the Secretary of Labor;
Thomas W. Miller, Esq., Miller, Griffin &
Marks, P.S.C., Lexington, Kentucky, for
Respondents.

Before:

Judge Melick

By decision dated May 8, 1986,_ the Chaney Creek Coal
Corporation was found to have discharged Odell Maggard in
violation of section 105(c) of the Federal Mine safetl and
Health Act of 1977, 30 u.s.c. 801 et~, the "Act."_/
Based upon that decision the parties subsequently stipulated

1/ Following Maggard's refusal to perform what was found to
be hazardous work, he was denied alternate work and told to
perform the hazardous task "or else." Maggard's subsequent
departure from the mine and failure to return was, under the
circumstances, a constructive discharge.
966

that Mr. Maggard would be entitled to net back pay through
June 1, 1986, of $31,812.
Interest was thereafter computed
based on the formula set forth in Secretary v. Arkansas
Carbona Co. and Walter, 5 FMSHRC 2042 (1983), at $1,848.19
through June 1, 1986 (excluding 12 days to compensate for an
extention in filing the Complainant's brief). The total back
pay award is therefore $33,660.19.
The Complainant also seeks an award of attorney's fees
and expenses totalling $18,016.22. This request is based
upon a claim of 213.4 hours of legal work at $80 per hour
plus expenses of $944.22. Section 105(c)(3) of the Act
provides that "[w]henever an order is issued sustaining the
complainant's charges under this subsection, a sum equal to
the aggregate amount of all costs and expenses (including
attorney's fees) as determined by the Commission to have been
reasonably incurred by the miner, applicant for employment or
representative of miners for, or in connection with, the
institution and prosecution of such proceedings shall be
assessed against the person committing such violation."
Respondents object to any attorney's fees arguing that
the work performed by the Appalachian Research and Defense
Fund of Kentucky, Inc., (Defense Fund) was "totally unnecessary." They suggest that the Complainant would have been
"more than sufficiently represented by the Secretary "since
the Secretary had also brought action against the Respondents
under section 105Cc)(2) of the Act and argue that the retention of a private attorney under the circumstances was
"totally unreasonable."
While the fees of a true "intervenor" in cases where the
government has a statutory obligation to prosecute may be
reduced as duplicative (See e.g. Donnel v. United States, 682
F.2d 240 (D.C. Cir. 1982) cert. denied, 103 s.ct. 1190 Cl983);
and Rollison v. Local 879, 677 F.2d 741, 748 (9th Cir. 1982))
the fees awarded in Maggard's 105(c)(3) proceeding, which was
parallel in many respects to the Secretary's case but independent of it, should not be reduced. Maggard was not an "intervenor" in these consolidated proceedings and his counsel took
the lead role in their prosecution. Under the circumstances I
find that attorney fees may properly be awarded to counsel for
the Complainant. Such fees were "reasonably incurred by the
miner" within the meaning of section 105(c)(3).
In addition the record shows that the Secretary did not
even decide to bring his section 105(c)(2) case on behalf of
Mr. Maggard and actually did not file his complaint with this
Commission until December 26, 1985, nearly 2 months after the
notice of hearing had been issued in Maggard's section
105(c)(3) case and only 20 days before the hearings commenced.
It is therefore likely that the cases would have been delayed

967

had Maggard's counsel not taken the prosecutive initiative.
The Secretary has also on occasion changed his mind about
bringing section 105(c)(2) cases thereafter leaving the miner
with no ~eptesentation. Thus there is always uncertainty as
to whether the Secretary will actually follow through on any
such decisibn.
The·recognized method of computing the amount of
attorney's fees begins by multiplying a reasonable hourly
rate by ~he' number of hours reasonably expended. Hensley v.
Eckerhart, 103 S.Ct. 1933 (1983); Blum v. Stenson, 104 S.Ct
1541 (198_4); Copeland v. Marshall, 641 F.2d 880 (D.C. Cir.
1980). The resulting figure is called the lodestar. The
lodestar fee may then be adjusted to reflect a variety of
other factors.
Respondents do not object to the proposed hourly rate of
$80. They do object however to what they maintain was time
devoted to unrelated activities involving communications with
the Secretary and litigating issues surrounding the Secretary's motion to dismiss Maggard's section 105Cc)(3) case.
Respondents argue that these matters had nothing to do with
the anti-discrimination purposes of the Act and did not concern any activities of Respondent.
I do not agree.
Consultation with the Secretary's counsel and the litigation of
issues surrounding the Secretary's motion to dismiss are not
unforeseeable consequences of a discriminatory action under
the Act. See 2 Court Awarded Attorney Fees ! 16.02(a) Those
matters were, moreover, clearly "in connection with the institution and prosecution of" proceedings within the context of
section 105(c)(3).
Respondents also maintain that the 44-1/2 hours spent
preparing and writing the post-hearing brief was "totally
excessive, particularly where there were no unique or complicated legal issues and where the attorney is well versed in
the area of t.he law." Counsel for Respondents indicates that
he spent, in comparison," only 15 hours on all aspects of the
brief, research and drafting."
The appropriate measure of an attorney's time for
setting his fees is of course not the actual time spent but
the time that should reasonably have been spent. Spray-Rite
Service Corporation v. Monsanto Co., 684 F.2d 1226 (7th Cir.
1982), Copeland v. Marshall, supra.
In this regard I observe
that the transcript of the proceedings consisted of only 414
pages and the post-hearing issues were factual (credibility)
in nature.
There were no novel or complex legal issues in
the case and counsel is familiar with the relevant law.
Under the circumstances I find that the time proffered as
expended in this areas was excessive and that a reduction to
25 hours is warranted for time reasonably expended in this
regard.

968

Respondents next argue that the amount of time spent by
the Defense Fund was not reasonably related to the amount of
money in controversy. While the request for attorney fees
represents approximately one-half of the damage award in this
case it is erroneous to relate a fee award in a case of this
nature strictly to the monetary results achieved. Copeland,
supra at page 888; Munsey v. Smitty Baker Coal Company, Inc.,
et al., 5 FMSHRC 2085 (1983). Indeed it is well recognized
that market value fee awards in cases such as this take into
account the need to assure that miners with bona fide claims
of discrimination are able to find capable lawyers to represent them. Moreover the success in cases such as this represents a vindication of societal interests incorporated in the
mine safety legislation above and beyond the particular
individual rights in the case. Under the circumstances the
fee award in this case is not in the nature of an inappropriate "windfall."
Respondents argue, finally, that the Defense Fund should
have used paralegals or investigators at a lower billing rate
for much of the work. The time an attorney spends on investigating facts is however clearly compensable. 2 Court Awarded
Attorney Fees t 16.02(b). In any event there is no evidence in
this case concerning the availability of paralegals and/or
investigators.
Under all the circumstances I find that a reduction in
the amount of time reasonably expended of 19-1/2 hours is
appropriate. There is no dispute concerning the related
expenses of $944.22 and accordingly the total amount of
$16,456.22 is awarded as attorney fees.
Wherefore Respondents are hereby ordered jointly and
severally, to pay to Odell Maggard within 30 days of this
decision damages of $33,660.19 and attorney's fees of
$16,456.22.
CIVIL PENALTY
Based upon information available when the initial
decision in this case was rendered a civil penalty of $1,000
was deemed appropriate. At subsequent proceedings on the
issues of damages and costs, however, it was represented that
the Complainant, contrary to that decision, had not been
reinstated.
In addition, as of May 29, 1986, the date the
Complainant's computation of interest was filed, it appears
that the Complainant had still not been reinstated.
Accordingly the violation of section 105(c)(l) is continuing and has not been abated. I am therefore directing
that, in addition to the $1,000 civil penalty previously

969

ordered,
the Chaney Creek Coal Corporation and the Dollar
Branch Corporation jointly and severally pay civil penalties
of $1,000 for each day during which they fail to reinstate
Mr. Odell Maggard to his former position or similar position
(at the same rate of pay) held prior to his discharge on
January 10, 1985, up to a maximum of $9,000.
Such additional
civil penalties shall be incurred commencing on the first day
after the receipt of this decision by counsel for Respondents.
Respondents are accordingly directed to pay, jointly and
severally, a civil penalty of $1,000 and such additional
penalties as specified herein within 30 day of the date of
this decision.

Distribution:
Tony Oppegard, Esq., Appalachian Re
Kentucky, Inc., P.O. Box 360, Hazar
Mail)

ense Fund of
(Certified

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Thomas w. Miller, Esq., Miller, Griffin & Marks, P.S.C., 700
Security Trust Building, Lexington, KY 40507 (Certified Mail)
rbg

970

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

JUN 171986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCFEDING
Docket No. SE 86-24
A.C. No. 01-00323-03557

v.
Chetopa Mine
DRUMMOND COMPANY, INC.,
AS SUCCESSOR BY MERGER TO
ALABAMA BY-PRODUCTS
CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding filed by the petitioner
against the respondent pursuant to section llO(a} of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a)
seeking a civil penalty asses.sment in the amount of $700, for
an alleged violation of mandatory safety standard 30 C.F.R.
§ 75.200, as stated in a section 104(d) (2) Order No. 2603334,
served on the respondent by an MSHA inspector on July 30, 1985.
The respondent filed a timely answer and contest, and the
case was scheduled for hearing in Birmingham, Alabama, on
July 16, 1986. However, the parties have now filed a motion
pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, seeking
approval of a settlement of the case. The respondent agrees
to pay a civil penalty in the settlement amount of $500, and
upon approval, withdraws its request
a hearing in this case.
Discussion
The respondent received the order in question as a result
of a continuous miner being operated in violation of the
roof-control plan.
Specifically, the distance from the machine
controls to the bits of the ripperhead was 20 feet while the
coal had been cut to a depth of 22 feet inby the last row of

971

permanent roof supports.
Consequently, the miner operator was
at least 2 feet beyond the permanent supports.
In support of the proposed settlement reduction of the
initial proposed civil penalty assessment in this case, the
petitioner's counsel asserts that the respondent employs a
progressive disciplinary program for instances of employee
misconduct, and that it was implemented in this case. Counsel
states that the continuous miner operator received a written
reprimand for violating the roof-control plan. Under the circumstances, counsel argues that the respondent's negligence
should be considered as slightly moderate, and that in view of
all of the available evidence, the parties agree that the proposed settlement disposition of this case is proper and in the
public interest.
Conclusion
After careful review and consideration of the pleadings
and arguments made in support of the motion to approve the proposed settlement disposition of this case, I conclude and find
that
is reasonable and in the public interest. Accordingly,
pursuant to 29 C.F.R. § 2700.30, the motion IS GRANTED, and the
settlement IS APPROVED.
ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $500 to the petitioner within thirty (30) days of the
date of this decision. Upon receipt of payment, this matter is
dismissed.

{:/

/PY~

~t:'~I' b!ut/-Ps ~

/t~ini~ative Law Judge
Distribution:

J. Fred McDuff, Esq., Alabama By-Products Corporation, P.O.
Box 10246, Birmingham, AL 35202 (Certified Mail)
David M. Smith, Esq., Maynard, Cooper, Frierson & Gale,
1200 Watts Building, Birmingham, AL 35203 (Certified Mail)
George D. Palmer and William Lawson, Esqs., Office of the
Solicitor, U.S. Department of Labor, 2015 Second Avenue North,
Suite 201, Birmingham, AL 35203 (Certified Mail)

/fb

972

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

June 17, 1986

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

CIVIL PENALTY PROCEEDING
Docket No. SE 85-1-M
A.C. No. 01-02168-05505
Pollard Sand and Gravel Mine

POLLARD SAND COMPANY,
Respondent

:

DEFAULT DECISION
Before:

Judge Koutras
Statement of the Case

This case concerns a proposal for assessment of civil
penalty filed by the petitioner against the respondent pursuant to section llO(a) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 820(a). Petitioner seeks a civil
penalty assessment in the amount of $500 for an alleged violation of mandatory safety standard 30 C.F.R. § 56.9-3, as
stated in a section 104(a) "S&S" Citation No. 2244781, served
on the respondent by an MSHA inspector on June 28, 1984.
The respondent filed a timely answer contesting the
alleged violation, and the case was scheduled for hearing in
Birmingham, Alabama, on July 16, 1986. Subsequent to the
issuance of the hearing notice, the respondent's owner and
operator Ronnie Pollard advised me by letter received May 9,
1986, that he is out of business and no longer in operation,
?nd that all of his business assets have been disbursed to pay
his business obligations. Mr. Pollard further advised that he
did not intend to attend the scheduled hearing because 11 I am
no longer in business and have no connection with any corporation under your jurisdiction."
In view of the respondent's position in this matter, I
issued an Order to Show Cause on May 23, 1986, requiring the
parties to state why the respondent should not be declared in

973

default and a summary order entered pursuant to Commission
Rule 63, 29 C.F.R. § 2700.63, assessing the proposed civil
penalty of $500 as final, and directing that such penalty be
paid. The petitioner responded within the 15 day time limit,
and agreed that the respondent may be declared in default.
The respondent failed to reply to my show cause order.
Conclusion
The respondent has been given an ample opportunity to
refute and defend the alleged violation and proposed civil penalty filed by the petitioner. It seems obvious to me that the
respondent does not wish to litigate this matter further
because he is out of business, and he has failed to respond to
my show cause order. Under the circumstances, I conclude and
find that the respondent is in default, and that a summary
order pursuant to 29 C.F.R. § 2700.63, is appropriate under the
circumstances of this case.
ORDER
Judgment by default is entered in favor of the petitioner,
and I assess the proposed civil penalty assessment of $500 for
the violation in question as the final assessment in this matter.
The respondent IS ORDERED to pay the final civil penalty assessment of $500, to the petitioner within thirty {30) days of the
date of this decision and order. The scheduled hearing is
cancelled.

t2:L'~

~~~

7~Koufr~
Administrative Law Judge

Distribution:
George D. Palmer, Esq., Office of the Solicitor, U.S. Department
of Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL
35203 (Certified Mail)
Pollard Sand Company, Route 2, Box 361-C, Gadsden, AL 35203
(Certified Mail)
Mr. Ronnie Pollard, Dixie Concrete Company, 111 North Harriss
Avenue, Piedmont, AL 35272 (Certified Mail)
/fb

974

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

JUN 181986
CONTEST PROCEEDING

YOUGHIOGHENY AND OHIO COAL
COMPANY,
Contestant

Docket No. LAKE 86-4-R
Order. No. 2495235; 9/10/85

v.
Nelms No. 2 Mine
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Respondent
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 86-26
A.C. No. 33-00968-03621

v.

Nelms No. 2 Mine

YOUGHIOGHENY AND OHIO COAL
COMPANY,
Respondent

··

DECISION APPROVING SETTLEMENT
Before:

Juoge Kennedy

When the parties' motions to withdraw and approve
settlement were before me in February, I denied them unless
the amount of the settlement proposed was increased from
$150 to $250. This was based on my belief that the operator's
alleged failure to install new bolts to abate the condition
cited measurably increased the negligence and gravity of
the violation. A review of the Secretary's prehearing
submissions, however, shows that MSHA is not claiming that
the failure to abate properly changed the character of the
violation from that of non-S&S to that of significant and
substantial.
The premises considered, therefore, it is ORDERED that
the order of February 28, 1986 be, and hereby is, VACATED
and the parties motions to withdraw and settle this matter
by payment of a penalty of $150 be, and hereby are, APPROVED.
It is FURTHER ORDERED that the operator pay the amount of
the settlement agreed upon, $150, on or before Friday,
July 6, 1986 and that subject to payment the captioned
matter be DISMISSED.
Finally, 'it is ORDERED that the hearing
scheduled for Thursday, Ju
26, 1986 be, and hereby is,
CANCELLED.

975

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

JUN 181986
DISCRIMINATION PROCEEDING

ANN RILEY OWENS,
Complainant

Docket No. LAKE 86-33-D
v.
VINC CD 85-21
MONTEREY COAL COMPANY,
Respondent

Monterey No. 2 Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Kennedy

For good cause shown, it is ORDERED that the parties
confidential settlement agreement and stipulation for settlement
and dismissal be received in camera and under seal. It is
FURTHER ORDERED that pursuant to such agreement and the parties'
joint motion to dismiss the settlement be, and hereby is,
APPROVED and subject to payment of the sum agreed upon the
matter DISMISSED.

Distribution:
Ms. Ann Riley Owens, 910 Morrison, St. Louis, MO 63104
(Certified Mail)
Thomas c. Means, Esq., Crowell & Moring, 1100 Connecticut
Avenue, N.W., Washington, D.C. 20036 (Certified Mail)
slk

976

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

JUN 181986
CONTEST PROCEEDINGS

CONSOLIDATION COAL COMPANY,
Contestant
v.

Docket No. WEVA 86-80-R
Citation No. 2714701; 12//11/85

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

Docket No. WEVA 86-103-R
Order No. 2566327; 1/9/86
Docket No. WEVA 85-209-R
Citation No. 2422888; 5/30/85
Docket No. WEVA 85-210-R
Citation No. 2422889; 5/30/85
Docket No. WEVA 85-230-R
Order No. 2422891; 6/19/85
Docket No. WEVA 85-231-R
Order No. 2422892; 6/19/85
Docket No. WEVA 85-232-R
Order No. 2422893; 6/19/85
Docket No. WEVA 85-234-R
Order No. 2423426; 6/25/85
Docket No. WEVA 85-235-R
Order No. 2423427; 6/25/85
Buckeye Prep Plant

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 85-277
A.C. No. 46-03243-03505

v.
Docket No. WEVA 86-237
A.C. No. 46-03242-03506

CONSOLIDATION COAL COMPANY,
Respondent

Buckeye Prep Plant

977

DECISIONS APPROVING SETTLEMENTS
AND

ORDER OF DISMISSAL
Before:

Judge Koutras
Statement of the Proceedings

·These consolidated proceedings concern proposals for
assessment of civil penalties filed by MSHA against the
Consolidation Coal Company (hereinafter Consol) pursuant to
section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking civil penalty assessments
for six alleged violations of certain mandatory safety standards found in Part 77, Title 30, Code of Federal Regulations.
The contests concern Notices of Contests filed by Consol
challenging the legality of three of the citations, and six
section 104(b} orders which were issued for Consol's alleged
failure to timely abate the citations in question. The citations and orders were issued during mine safety inspections
of a refuse pile associated with the Buckeye Preparation Plant
located in Stephenson, West Virginia.
These cases were scheduled for hearings in Charleston,
West Virginia, during the hearing term June 17 through 19,
1986. However, by motion filed with me on June 5, 1986, pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, the parties
seek approval of a proposed settlement of the civil penalty
proceedings. Upon approval of the settlement, MSHA requests
that the contests be dismissed. The citations, initial assessments, and the proposed settlement amounts are as follows:
Docket No. WEVA 85-277
Citation No.

Date

30 C.F.R.
Section

Assessment

Settlement

2022955
2022956
2123823
2422888
2422889

9/06/83
9/06/83
10/24/83
5/30/85
5/30/85

77. 215 (a)
77. 215 (h)
77.215(j)
75.215-2(c)
77.215-3(b)

$ 78.00
$ 78.00
$ 78.00
$180.00
$180.00

$ 78.00
$ 78.00
$ 78.00
$ 85.00
$ 85.00

Docket No. WEVA 86-237
Citation No.

Date

30 C.F.R.
Section

Assessment

Settlement

27114701

12/11/85

77.215(f)

$395.00

$275.00

978

Discussion
In support of the proposed settlement disposition of the
citations in question, MSHA's counsel has submitted a full
discussion and disclosure with respect to the facts and circumstances concerning the violations, including arguments in
support of the proposed reduction of the initial civil penalty
assessments for three of the citations. Counsel has also provided a full discussion of the six statutory criteria found in
section llO(i)
the Act.
With regard to Citation Nos. 2422888 and 2422889, MSHA's
counsel states that they were issued for failure by Consol
to file reports and certifications pursuant to 30 C.F.R.
§ 77.215.
Counsel asserts that these violations are of low
gravity, are not significant and substantial violations, and
would not, in themselves, cause injury or lost work days.
Counsel concludes that the proposed settlement reduction~ are
justified.
With regard to Citation No. 27114701, coun
states that
it was issued for a violation of 30 C.F.R. § 77.215(f), because
an erosion gulley in excess of 12 feet deep was causing refuse
at the pile to shift and slide material down a hi
ide towards
adjacent residences. However, counsel points out that the
violation has
abated in that the erosion gulley has been
filled and the
se rediverted away from the residences and
nearby stream, and that this was accomplished after a bi-party
conference and visitation to the site in February 1986.
Counsel also points out that Consol has agreed to develop and
submit to MSHA a schedule of a plan to permanently reclaim and
site"
In view of Consol 1 s good faith efforts
believes that the proposed
1 penalty
is justif
MSHA recognizes that Consol delayed the abatement of the
violations because of its litigation position denying ownership
and operation of the refuse
le in question.
Consol's position in this
was rejected by former Commission Judge
Richard Co Stef
in his decision of March 1, 1985, in
Consolidation Coal Company v. S
of Labor, 7 FMSHRC 322
(March 1985). On March 13, 1
,
court of
Appeals denied Consol's appeal and affirmed Judge Steffey's
decision.
MSHA estimates that approximately one million dollars
will be needed to properly rehabilitate the refuse pile in
accordance with Federal safety standards, and it recognizes

979

that available financial resources are best spent on such
rehabilitation efforts and that the proposed civil penalty
settlement amounts are consistent with the remedial purposes
of the Act.
In this regard, MSHA asserts that the violations
are being abated in good faith and that Consol's history of
prior violations shows no related violations.
Conclusion
After careful review and consideration of the pleadings
and arguments made in support of the proposed settlement disposition of the civil penalty cases, I conclude and find that
they are reasonable and in the public interest. Accordingly,
pursuant to 29 C.F.R. § 2700.30, the settlements ARE APPROVED.
ORDER
Consol IS ORDERED to pay civil penalties in the set~le
ment amounts shown above to MSHA within thirty (30) days of
the date of these decisions. Upon receipt of payment, the
civil penalty cases are dismissed.
Consol has filed a motion to withdraw Contest Docket No.
WEVA 86-80-R, upon approval of the civil penalty which is the
subject of Docket No. WEVA 86-237. The motion IS GRANTED, and
the contest IS DISMISSED.
With regard to the remaining contest dockets, in view of
the approval of the companion civil penalty Docket No.
WEVA 85-277, I see no reason why these contests should not now
be dismissed. Accordingly, the remaining contests ARE DISMISSED.

/~

Administrative Law Judge

Distribution:
Robert M. Vukas, Esq., Consolidation Coal Company, 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
/fb

980

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

JUN 191986
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
EARL KENNEDY,
LARRY COLLINS,
Complainants

Docket No. VA 85-32-D
MSHA Case No. NORT CD 84-7
Mine No. 1

v.
RAVEN RED ASH COAL
CORPORATION,
Respondent
AMENDED DECISION
Appearances:

Sheila K. Cronan, Esq., Off
of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Complainants;
Daniel R. Bieger, Esq., Copeland, Molinary &
Bieger, Abingdon, Virginia, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed
by the complainants against the respondent pursuant to section
105(c) of the Federal Mine Safety and Health Act of 1977. The
complainants contended that they were discharged from their
employment with the respondent because of
refusal to work
under unsupported roof.
On April 7, 1986, I issued my decision in
s case.
I
concluded and found that the complainants were fired by the
respondent because of their
sal to work under unsupported
roof.
I further concluded and found that the work refusal was
protected activity under the Act, and
their discharge by
the respondent for this reason constituted a violation of
section 105(c} (1) of the Act. The respondent was ordered to pay

981

complainant Earl Kennedy the sum of $2,170 in backpay, less any
amounts normally withheld pursuant to state and Federal law,
with interest at 9 percent until paid.
The respondent was
ordered to pay complainant Larry Collins the sum of $10,600,
ss any amounts normally withheld pursuant to state and Federal
law, with interest at 9 percent until paid.
I also assessed a
civil penalty in the amount of $1,000, for the violations in
question, and entered an order requiring the respondent to remit
payment of same to MSHA within 30 days.
By motion filed with me on April 23, 1986, MSHA requested
reconsideration of my decision of April 7, 1986, to delete the
reference to the 9 percent interest rate, and to require the
respondent to pay interest on the backpay awards in accordance
with the Commission-approved formula in Secretary ex rel. Bailey
v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2050-2054 (Dec. 1983).
MSHA also requested further leave to submit a statement stating
the total amount of interest due on the back wage award to each
complainant, and suggested that the respondent be given 10 days
within which to file a reply. MSHA's motion was granted, and
on May 2, 1986, I issued an Amended Decision affording MSHA an
opportunity to file its requested monetary relief on behalf of
the complainants, and the respondent was afforded an opportunity
to file a reply.
By letter and enclosures filed with me on June 2, 1986,
MSHA submitted its backpay and interest summaries supported by
detailed computations for both complainants. According to
these computations, complainant Larry Collins is due backpay in
the amount of $10,600, with interest computed through June 2,
1986, in the amount of $1,640.57, for a total of $12,240.57.
Complainant Earl Kennedy is due backpay in the amount of $2,170,
with interest computed through June 2, 1986, in the amount of
$403.29 for a total of $2,573.29. MSHA's computations also
reflect that interest will continue to accrue to Mr. Collins
through June 30, 1986, in the amount of $2.94 daily, and to
Mr. Kennedy in the amount of .60 daily.
The respondent f
led to respond to MSHA's motion of
April 23, 1986, for an amended decision, and it also failed to
reply to MSHA's submissions concerning the
due the
complainants.
ORDER
1. My decision of April 7, 1986, as amended on May 2,
1986, is further amended to incorporate the aforementioned
monetary relief requested by MSHA on behalf of complainants
Earl Kennedy and Larry Collins.

982

2.
Respondent IS ORDERED to pay to the complainant
Earl Kennedy the sum of $2,170, less any amounts normally withheld pursuant to state and Federal law, with interest computed
through June 2, 1986, in the amount of $403.29, for a total of
$2,573.29.
Interest will continue to accrue to Mr. Kennedy in
the amount of .60 daily, through June 30, 1986, and thereafter
in any amount computed in accordance with the Arkansas-Carbona
Co. formula.
3. Respondent IS ORDERED to pay to the complainant Larry
Collins the sum of $10,600, less any amounts normally withheld
pursuant to state and Federal law, with interest computed
through June 2, 1986, in the amount of $1,640.57, for a total
of $12,240.57.
Interest will continue to accrue to Mr. Collins
in the amount of $2.94 daily, through June 30, 1986, and thereafter in any amount computed in accordance with the ArkansasCarbona Co. formula.
4. Respondent IS ORDERED to pay a civil penalty assessment
in the amount of $1,000 for the violations in question.
5. All payments required to be made by the respondent in
accordance with my decision, as amended, shall be made within
thirty (30) days of the date of this amended decision.

~~K~~
Administrative Law Judge

stribution:
Sheila K. Cronan, Esq.
Office of the Solicitor, U.S. Department
of Labor~ 4015 Wilson Boulevard, Room 1237A, Arlington, VA 22203
(Certified Mail)

1 R.
, Esq., Copeland, Molinary & Bieger, P.O.
Box 1296, Abingdon, VA 24210 (Certified Mail)

/fb

983

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COlFAX AVENUE, SUITE 400
DENVER, COlORADO 80204

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

v.
COBBLESTONE, LTD.,
Respondent

JUN 201986

CIVIL PENALTY PROCEEDING
Docket No. WEST 86-52-M
A.C. No. 05-03950-05501

.. Cobblestone Pit Mine
DECISION

Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Respondent was absent.

Before:

Judge Carlson

This civil penalty proceeding came regularly on for hearing
at Grand Junction, Colorado on May 2, 1986. At the outset of the
hearing, counsel for the Secretary of Labor announced that he had
reached a settlement with the respondent on the previous evening
which, if approved, would resolve all matters in dispute. He
also announced that respondent's representative had elected not
to attend the hearing in view of the settlement, but had authorized him to recite the substance of the agreement for the record.
Mr. Lloyd, respondent's representative, has since confirmed the
par culars of the agreement by letter.
The terms of the settlement are as follows:
The Secretary moves to withdraw citations 2376695 arid
2376699 for lack of sufficient evidence.
Of the remaining 18 citations, the penalties for all are to
be $20.00 and those which were originally classified as
"significant and substantial" are to be classified as "nonsignif icant and substantial."
Based upon the representations of the Secretary at the
hearing and the contents of the file, I conclude that the
settlement agreement should be approved in all respects.

984

Accordingly, the settlement provisions set forth above are
ORDERED approved. Citations 2376695 and 2376699 are vacated. A
total civil penalty of $360.00 is assessed for the remaining 18
citations, which sum shall be paid within 50 days of the date of
this decision.

John A. Carlson
Administrative Law Judge
Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Cobblestone, Ltd, Mr. Leonard W. Lloyd, P.O. Box 173, Pagosa
Springs, CO 81147 (Certified Mail)

/blc

985

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

JUN 201986

CIVIL PENALTY PROCEEDING
Docket No. WEST 86-55-M
A.C. No. 05-03950-05502

v.

Cobblestone Pit Mine

COBBLESTONE, LTD.,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor
u.s$ Department of Labor, Denver, Colorado,
for Petitioner;
Respondent was absent.

Before:

Judge Carlson

This civil penalty proceeding came regularly on for hearing
at Grand Junction, Colorado on May 2, 1986. At the outset of
the hearing, counsel for the Secretary of Labor announced that
he had reached a settlement with the respondent on the previous
evening which, if approved, would resolve all matters in dispute.
He also announced that respondent's representative had elected
not to attend the hearing in view of the settlement, but had
authorized him to recite the substance of the agreement for the
record. Mr. Lloyd, respondent's representative, has since confirmed the particulars of the agreement by lettero
terms of the proposed settlement are as

follows~

The .;enalty for citation 2376711 is reduced from $79.00 to
$29o00o
The penalty for combined citation/order 2376712 and 2376742
is reduced from $225000 to $125.00o
Conditioned upon these reductions, respondent agrees to withdraw its notices of contest.
Based upon the representations of the Secretary made upon the
record and the contents of the file, I conclude that the settlement agreement is appropriate and should be approved.

986

Accordingly, the settlement agreement is ORDERED
approved in all respects. A total civil penalty of $154.00
is assessed, to be paid to the Secretary of Labor within
50 days of the date of this decision.

'

John A. Carlson
Administrative Law Judge

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street,
Denver, Colorado 80294 (Certified Mail)
Mr. Leonard W. Lloyd, Cobblestone, Ltd., P.O. Box 173,
Pagosa Springs, Colorado 81147

/ot

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

June 20, 1986

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 85-119
A. C. No. 46-06646-03502

v.
Docket No. WEVA 85-124
A. C. No. 46-06646-03503

THOMPSON COAL & CONSTRUCTION,
INC.,
Respondent

River Mine

ORDER DENYING MOTIONS TO SET ASIDE ORDERS OF DEFAULT
Before:

Judge Broderick

On June 13, 1986, the operator filed motions to set aside
orders of default and permit filing of answer.
Orders of default
in these cases were entered on April 27 and April 28 for failure
of the operator to submit answers.
Pursuant to section 113 of
the Federal Mine Safety and Health Act of 1977, these orders
became final Commission decisions on June 6 and June 7. No
sufficient reason has been offered which would justify relief
from the judgment as provided by Rule 60(b) of the Federal Rules
of Civil Procedure, as referenced by Commission Rule l(b),
29 C.F.R. § 2700.l(b).
Accordingly, the motions to set aside the default orders in
these cases are DENIED.

{j{/f1LU'.~ d

v

J

;,/ / dvvt~d(

, James A. Broderick
Acting Chief Administrative Law Judge

Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philaaelphia, PA 19104
(Certified Mail)
Charles G. Johnson, Esq., Johnson & Johnson, Thompson Coal &
Construction, Inc., 222 Goff Building, P. O. Box 2332,
Clarksburg, W-V 26301
(Certified Mail)

Mr. James w. Thompson, President, Thompson Coal & Construction,
Inc., P. O. Box 228, Clarksburg, WV
/gl

988

26301

(Certified Mail)

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

22041

JUN 2 31986

DISCRIMINATION PROCEEDING

WILLIAM D. SHELL,
RALPH CORNETT,
JACK FARLEY,
JIM ENGLE,
Complainants

Docket Nos. KENT 8 144-D
KENT 85-145-D
KENT 85-146-D
KENT 85-147-D

v.
HARLAN-BELL COAL, INC., AND
REECE LEMAR,
Respondents
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
WILLIAM D. SHELL,
RALPH CORNETT,
JACK FARLEY,
JIM ENGLE,
RAYMOND HALCOMB,
CHARLES ROBBINS,
Complainants

DISCRIMINATION PROCEEDING
Docket Nos. KENT 85-210-D
KENT 85-211-D
KENT 85-212-D
KENT 85-213-D
KENT 85-176-D
KENT 85-177-D

v.
HARLAN-BELL COAL, INC., AND
SHAUNA DAREASE COAL CO.,
Respondents
DECISION APPROVING SETTLEMENT
Before:

Judge Maurer
Statement of the Case

This is a discrimination proceeding initiated by the
complainants against the respondents pursuant to section
105(c) of the Federal Mine Safety and Health Act of 1977,
(the Act) charging the respondents with unlawful discrimination against the complainants for exercising certain rights
afforded them under the Act. The matter was scheduled for
hearing in Berea, Kentucky, on May 21, 1986, but was continued when the parties advised me
a proposed settlement
disposition of the dispute.

989

On June 3, 1986, the parties filed joint settlement
agreements proposing to dispose of this matter.
Included
as part of the negotiated settlement is an agreement by the
respondents to pay certain sums to each complainant as
follows in three equal installments on May 21, 1986,
June 20, 1986, and July 21, 1986:
William D. Shell
Ralph Cornett
Jack Farley
Jim Engle
Raymond Halcomb
Charles D. Robbins

$6,000.00
$6,088.25
$7,678.13
$6,542.50
$6,000.00
$6,542.50

Likewise, the respondents agreed to pay the Appalachian
Research and Defense Fund of Kentucky, Inc. the total sum
of $6,500.00 for attorney's fees and expenses.
In addition, respondents agreed to expunge the personnel files
of the complainants concerning their discharge from employment on or about January 3, 1985, and substitute therefor
the agreed upon particular language applicable to each case.
In the case of William D. Shell, his personnel file shall
also reflect that he was returned to an active work status
in September 1985, but due to low coal demands, his employment has again been temporarily suspended. He shall be
immediately reinstated to a permanent full-time position
at his regular rate of pay when economic conditions improve.
In the case of Raymond Halcomb, respondents agreed that his
temporary reinstatement is converted to permanent full-time
reinstatement at his current hourly wage.
The Secretary waived the assessment of a civil penalty
for violations of § lOS(c) of the Act in order to facilitate the agreement and thereby provide speedy economic relief to the complainants.
Conclusion
After careful review and consideration of the settlement terms and conditions executed by the parties in this
proceeding, including the individual complainants, I conclude and find that it reflects a reasonable resolution of
the complaints.
Since it seems clear to me that all parties
are in accord with the agreed upon disposition of the
complaint, I see no reason why it should not be approved.
ORDER
The proposed settlement IS APPROVED.
Respondents ARE
ORDERED AND DIRECTED to fully comply forthwith with the

990

terms of the agreement. Upon full and complete compliance
with the terms of the agreement, these matters are dismissed.

aurer
istrative Law Judge

Distribution:
W. F. Taylor, Esq., Office of the Solicitor, U. S. Department
of Labor, 801 Broadway, Room 280, Nashville, TN 37203
(Certified Mail)
Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., P. o. Box 360, Hazard, KY 41701 (Certified
Mail)
Rudy Yessin, Esq., 411 W. Broadway, P. 0. Drawer B, Frankfort
KY 40602 (Certified Mail)
Steve Cundra, Esq., Thompson, Hyde & Flory, 1920 N St., NW,
Washington, DC 20036 (Certified Mail}
Sidney Douglass, Esq., 101 Court St., Harlan, KY
(Certified Mail)

yh

991

40831

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

22041

JUN 2 51986
DISCRIMINATION PROCEEDING

JOHNNIE LEE JACKSON,
Complainant

v.

Docket No. CENT 86-36-D
MSHA Case No. MADI 8

TURNER BROTHERS, INC.,
Respondent

Rogers No. 2 Mine

ORDER OF DISMISSAL
Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint initially filed by MSHA on behalf of the complainant Johnnie Lee
Jackson against the respondent pursuant to section 105(c} of
the
Mine Safety and Health Act of 1977. Mr. Jackson
claimed that he was discharged by the respondent because he
made safety complaints concerning an unsafe bulldozer which
he operated while in the respondent's employ. Mr. Jackson was
involved in an accident while operating the bulldozer, and the
respondent claimed that he was fired for causing the accident,
and that his discharge was in accord with company pol
regarding accidents caused by its employees.
On January 22, 1986, MSHA filed an Application for Temporary Reinstatement on Mr. Jackson's behalf, and a hearing on
the application was conducted in Muskogee, Oklahoma, on
February 5, 1986. Subsequently, on March 18, 1986, I issued
a decision denying Mr. Jackson's temporary reinstate~ent, and
a hearing on the merits of the complaint was scheduled for
June 25, 1986, in Muskogee, Oklahoma.
On May 5, 1986, MSHA filed a motion to withdraw its representation of Mr. Jackson. As grounds for its motion, MSHA
stated that it had "discovered information which would have
caused the Secretary to reject Mr. Jackson's complaint had that
information been available when the investiqation report was
reviewed.". MSHA stated further that 11 under-these circumstances,
the Secretary is obligated not to pursue the matter on behalf
of Mr. Jackson and not to compel respondent to defend an action
that should not have been filed. 11

992

On May 7, 1986, I issued an order granting MSHA's motion
to withdraw its representation of Mr. Jackson. Mr. Jackson
was directed to file a complaint within 30 days on his own
behalf or through counsel of his own choosing. Mr. Jackson
failed to file such a complaint, and on June 10, 1986, I
issued an Order to Show Cause as to why this matter should not
be dismissed because of Mr. Jackson's failure to file a complaint on his own behalf. Mr. Jackson has failed to respond
to my order. Under the circumstances, I conclude and find that
this matter should now be dismissed because of Mr. Jackson's
failure to pursue his complaint.
ORDER
In view of the foregoing, this matter IS DISMISSED. The
hearing previously scheduled in Muskogee, Oklahoma, IS CANCELLED.

_,

(r/
• .
., A.

A'~
uf

..

1..Georg~ ~<"Kout as ,~
.

//// t:..·.,...z·

·Administrative Law Judge

Distribution:
Johnnie Lee Jackson, Rt. 1, Box 5 {57 Lot 21), Talala, OK 74080
{Certified Mail)
Robert Petrick, Esq., North Highway 69, P.O. Box 447,
Muskogee, OK 74402 {Certified Mail)
/fb

993

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

WHITE C_Q~JiTY COAL CORPORATION,:
Contestant

v.

JUN 301986

CONTEST PROCEEDINGS
Docket No. LAKE 86-sa~R
Order No. 281-7373; 2/6/86

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

.

Docket No. LAKE 86-59-R
Ordei No. 28173751 2/21/86
Pattiki- Mine

ORDER OF DISMISSAL

.

By interlocutory decision dated June 9, 1986, (Appendix
A) the Motions for Summary Decision filed by the Contestant
were granted in the captioned cases and the.withdrawal orders
therein were accordingly modified to citations under section
104(a) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 814(a). By letter dated June 24, 1986, Contestant
states that it does not dispute either the existence of the
violations alleged in these citations or the "significant and
substantial" findings associated therewith. Accordingly
section 104(a) Citation Nos. 2817373 and 2817375 are affirmed
with "significant and substantial" findings. These Contest
Proceedings have accordingly been rendered mootl '.and ar

P·\.

therefore dismissed.

\
'I

\ .

''

\1lv

Gary Meli_l ck
Administ.'ative
Distribution:
Timothy M. Biddle, Esq., and Barbara M ers, Esq., Crowell &
Moring, 1100 Connecticut Ave., N.W.,
shington, DC 20036
(Certified Mail)
James Bo Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
rbg

994

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

APPENDIX A

JUN 9 1986
WHITE COUNTY COAL CORPORATION,:
Contestant
:

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

CONTEST PROCEEDINGS

.
.

Docket No. LAKE 86-58-.R
Order No. 2817373; 2/6/86
Docket No. LAKE 86-59-R
Ordei No. 2817375; 2/21/86
Pattiki·Mine

DECISION
Before:

Judge Melick

These cases are before me upon the contests filed by the
White County Coal Corporation (White County) under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et seq., the "Act," to challenge the issuance by
the Secretary of Labor of two orders of withdrawal under
section 104(d) of the Act.l/

1/

Order No. 2817373 was issued under section 104(d)(l) of
the Act. That section reads as follows:

"If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent qanger, such
violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation
given to the operator under this Act."
Order No. 2817375 was issued under section 104Cd)(2) of
the Act. That section provides as follows:
"If a withdrawal order with respect to any area in a
coal or other mine has been issued pursuant to paragraph (1),
a wlthdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar
to those that resulted in the issuance of the withdrawal
order under paragraph (1) until such time as an- inspection of
such mine discloses no similar violations. Following an
inspection of such mine which discloses no similar violations, the provisions of paragraph Cl) shall again be applicable to that mine."
995

White County subsequently filed a motion for partial
summary decision pursuant to Commission Rule 64, 29 C.F.R. §
2700.64 seeking modification of the orders to citations under
section 104Ca) of the Act. White County maintains that the
section 104Cd) orders at issue are invalid because they are
not based on existing practices or conditions actually per~
ceived during an inspection by an inspector as purportedly
required by that section of the Act. The essential underlying facts indeed do not appear to be in dispute and I find
that White County is entitled to partial summary decision as
a matter of law. Commission Rule 64, supra.
On February 6, 1986, an inspector for the Federal Mine
Safety and Health Administration CMSHA}, Wolfgang Kaak, was
conducting an inspection of the White County Pattiki Mine
when he discovered that a chalk centerline had been drawn
under the unsupported roof of room No. 6 from the last row of
permanent supports inby to the face for a distance of 13 feet.
It is clear that the inspector was not present when the chalk
line was drawn and that he did not observe anyone under the
unsupported roof.
The coal drill operator, Darrell Marshall, admitted to
Inspector Kaak however that he had drawn the chalk line in
question because the mining sequence was behind schedule and
he was being pressed to keep his coal drilling process going.
Marshall also admitted that he had walked under the unsupported area even though he had seen the red flag warning of
the danger. Based upon these observations and admissions
Kaak thereupon issued section 104(d)(l) Withdrawal Order No.
2817373 alleging an unwarrantable violation of the standard
at 30 C.F.R. § 75.200. That standard provides in pertinent
part that "no person shall proceed beyond the last permanent
support • • • • "
The order reads as follows:
A chalk centerline was observed on the roof of
room No. 6 running from the last row of permanent
supports, roof bolts, inby to the face. This
area was and had not_ been supported when the coal
drill operator, CD. Marshall), made the centerline on the roof. The distance from the last row
of bolts to the face was 13 feet. working
section I.D. 003-0.
The order was terminated 25 minutes later following crew
reinstructibn on the roof control plan.

996

During a subsequent inspection at the Pattiki Mine on
February 12, 1986, Inspector Kaak observed foot prints
beneath an area of unsupported roof. Again Kaak did not
observe anyone under the unsupported roof. Moreover he was
unable to obtain any further information about the incident
upon questioning the foreman and miners in the area. Kaak
nevertheless then issued section 104(d)(2) Order No. 2817375
alleging an unwarrantable violation of 30 C.F.R. § 75.200.
The order reads as follows:
Physical evidence, footprints, were observed
going through an area of unsupported roof in the
X-cut between Entry No. 6 and Entry No. 7 at
curve Y spad No. 1773. The opening averaged
about 10 feet long by 10 feet wide. The height
average was 6 feet. The area was rock dusted and
foot prints were olearly visible. Work section
I.D. 002-0.
This order was terminated about 1 hour later after the crew
was again reinstructed on the roof control plan and the area
had been permanently supported.
Citing the decisions of 5 Commission Administrative Law
Judges (Westmoreland coal Company, Docket Nos. WEVA 82-34-R
et al, May 4, 1983, Judge Steffey; Emery Mining Corporation,
7 FMSHRC 1908, 1919 (1985), Judge Lasher; Southwestern
Portland cement Company, 7 FMSHRC 2283, 2292 (1985), Judge
Morris; Nacco Mining Company, 8 FMSHRC 59 (1986), Chief Judge
Merlin, review pending; Emerald Mines Corporation, 8 FMSHRC
324 (1986), Judge Melick, review pending) White County maintains that the section 104(d) orders herein are invalid
because they were not issued based upon a finding by an MSHA
inspector of an existing violation of the Act or a mandatory
standard.
It is not necessary to here restate the supportive
rational of the cited decisions. It is sufficient to state
that I am in agreement with the rational of those decisions
and the principles stated therein that section 104(d) orders
cannot be issued based upon a finding by the inspector of a
violation that has occurred in the past but no longer then
exists. It is undisputed in this case that the inspector did
not observe any violations being committed but that he based
his issuance of the 104Cd) orders before me upon evidence of
past violations. Accordingly White County's motion for
partial summary decision is granted and the orders at bar are
accordingly modified to citations under section 104Ca) of the
Act.

997

In light of this decision the parties are directed to
confer and advise the undersigned on or bef re June 20, 1986
regarding further proceedings in this matte •
I

\
..-L_.-----...\
'

Distribution:
Timothy M. Biddle, Esq., and Barbara Myers, Esq., Crowell &
Moring, 1100 Connecticut Ave., N.W., Washington, DC 200036
(C~rtified Mail)
James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
rbg

998

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 301986

CIVIL PENALTY PROCEEDING

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

Docket No. PENN 85-260
A. C. No. 36-00906-03584

v.

Gateway Mine

GATEWAY COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Linda M. Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Penn~
sylvania, for Petitioner;
George S. Brooks, Esq., Lexington, Kentucky,
for Respondent.

Judge Maurer
Statement of the Case

This case is before me upon a petition for assessment
of civil penalties under section lOS(d} of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. section 801, et seq.,
the "Act," in which the Secretary initially had chargedthe
Gateway Coal Company with five (5) violations of the mandatory safety standards. However, prior to the commencement
of taking testimony in this case, the Secretary vacated
§ 104{a) Citation Nos. 2398789 and 2398784 and also withdrew
the civil penalty assessment concerning Citation No. 2397333.
I approved the vacation and withdrawal of the above three
(3) citations on the record.
The remaining two alleged violations were tried before
me at a scheduled hearing on 'April 23, 1986, at Pittsburgh,
Pennsylvania.
The general issues before me are whether the company
has violated the regulatory standards as alleged in the
petition and, if so, the appropriate civil penalty to be
assessed for the violation(s).
Since the respondent readily admits the regulatory violations of 30 C.F.R. § 75.1725(a) alleged in Citation No.
2399220 (GX-1) and 30 C.F.R. § 75.1403 alleged in Citation

999

No. 2397217 (GX-2), the specific issues before me for resolution concerning these violations are whether they are
"significant and substantial" (S&S) violations and what the
proper penalty should be.
Stipulations
At the hearing, the parties agreed to the following
stipulations which were accepted (Tr. 7-8):
1. The Gateway Mine is owned and operated by the
Gateway Coal Company.
2. The Gateway Mine is subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977.
3. The .undersigned administrative law judge has
jurisdiction over these proceedings.
4. The subject citations were properly served by a
duly authorized representative of the Secretary of Labor,
upon an agent of the respondent, at the dates, times, and
places stated in the citations, and may be admitted into
evidence for the purpose of establishing their
suance,
but not necessarily for the truthfulness or relevance,
or any of the statements contained therein.
5.
The assessment of the civil penalties in this
proceeding will not affect the respondent's ability to
stay in business.
6. The appropriateness of the penalties, if any,
to the size of the coal operator's business should be based
on the fact that the Gateway Mine's annual production tonnage, as of the time of the issuance of the citations,
was nine hundred and sixty-one thousand, one hundred and
sixty-six (961,166).
7.
The respondent demonstrated ordinary good faith
in attaining compliance after the issuance of each citation.
8.
The Gateway Mine was issued three hundred and
thirty seven (337) citations in the twenty-four months
immediately preceding the issuance of these citations
involved in this case.
9. The parties stipulate to the authenticity of
the exhibits to be entered.

1000

Discussion and Analysis
Section 104(a) Citation No. 2399220 was issued to the
operator because a personnel
(jeep) that was equipped
with a dead man switch had that switch wired into the "closed"
position.
It had in effect been rendered inoperative. This
is a violation of 30 C.F.R. § 75.
25(a) and is admitted by
the operator.
Section 104(a) Citation No. 2397217 was issued to the
company because another personnel carrier (jeep) did not
have the required reflectors on one side. The company had
previously been issued a notice to provide safeguards requiring that all self-propelled personnel carriers (jeeps)
be equipped with reflectors on both ends and both sides
(GX-4).
This is a violation of 30 C.F.R § 75.1403 and again
is readily admitted by the operator.
Inspector Francis E. Wehr testified that he issued
104(a) Citation No. 2397217 on February 1, 1985, during
an inspection of the Gateway Mine.
In his opinion, since
the jeep was missing reflectors on the tight side, the
hazard created was that if it was coming on to a piece of
track haulage at a particular angle and if an oncoming
piece of equipment was coming, there could be a collision
and individuals could be injured. He assessed the likelihood of such an event occurring as "reasonably likely" and
he would expect injuries ranging from bruises to broken
bones as a result of the collision. He therefore assessed
this violation as a "significant and substantial" (S&S) one.
§

During cross-examination of Inspector Wehr, Citation
No. 2397139, which was originally a notice to provide safeguards, was introduced (RX-1). This document was issued
to the Gateway Coal Company on January 4, 1985, by, Inspector
Wehr because he had observed a jeep being operated without
any
at all, on either ends or sides. On this
occasion, the inspector did not mark the "S&S" box. His
first explanation of that was that he made a mistake, that
it should have been marked "S&S." He later amended his
response to state that this document had originally been
issued as a safeguard under section 314(b) of the Act and
when issuing a safeguard you are not concerned with the
determining whether a violation would be
cant and substantial." However, I note that he
that the penalty criteria do not apply when
issuing a safeguard. That for purposes of issuing a safeguard, whether there would be an injury, the likelihood of
that
ury or what the negligence would be are not considered. Yet, when he issued Citation No. 2397139, as a

1001

notice to provide safeguards, he checked the boxes for "low"
negligence, "no likelihood" of occurrence and "no lost workdays" as the type of injury that would result from occurrence
of the event.
As it turns out, this citation should not have been
issued as a safeguard at all because a safeguard for the same
thing had previously been issued by Inspector Light on May 29,
1984 (GX-4).
Inspector Light issued Citation No. 2253769 as
a safeguard and likewise did not markthe "S&S" box. He did,
however, mark the penalty criteria. He checked the boxes
for "none" pertaining to negligence, "unlikely" occurrence
and "lost workdays or restricted duty" as type of injury.
When it was subsequently discovered that there was an
existing safeguard issued concerning jeep reflectors, Inspector Wehr modified Citation No. 2397139 from a safeguard
to a § 104(a) citation on January 23, 1985. However, even
though he concedes he could have, he did not at that time'
modify this citation to reflect an 11 S&S" violation.
Although Inspector Wehr testified on direct that the
lack of a reflector on the tight side of the jeep would be
reasonably likely to cause an accident, it is apparent to
me that he changed his mind sometime between issuing Citation No. 2397139 on January 4, 1985, and February 1, 1985,
when he issued the citation at bar. Further, he has no
knowledge of any statistics concerning accidents caused by
missing reflectors nor was he able to cite a single example
of an accident caused by a missing reflector. This last
observation also applies to the opinion testimony of the
two miner wi tnesse,s concerning gravity.
The Commission in Cement Division, National Gypsum
Company, 3 FMSHRC 822 (1981} set out th~ test for,determining whether a violation, in the words of the statute, " ••.
could significantly and substantially contribute to the
cause and effect ••• of a mine safety or health hazard."
s.uch a violation, the ·commission held, is one where there
exists" ... a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature."
Later, in Mathies Coal Co., 6 FMSHRC 1 (1984}, the
Commission applied the definition of "significant and substantial11 in four steps. The first step was whether a
violation occurred.
In this case that much is admitted by
the respondent. The second step is whether the violation
contributed a measure of danger to a discrete safety hazard.

1002

Relying on the testimony of the inspector and the two miner
witnesses, I conclude that there was a discrete safety
hazard and the violation did contribute some additional
measure of danger.
The third step in applying the definition is whether there is a reasonable likelihood that the
hazard contributed to will result in injury, and the fourth
step is whether there is a reasonable likelihood that the
injury in question will be of a reasonably serious nature.
I think we would all agree that if a collision accident
occurred involving two of these ]eeps, traveling at anything
more than a minimal rate of speed that injuries of a reasonably serious nature would likely occur.
Therefore, the
ultimate issue is whether the absence of reflectors on the
jeep would be reasonably likely to cause such an accident.
At the hearing,and within the four corners of the citation
at bar, Inspector Wehr was of the opinion that such an
occurrence was "reasonably likely." However, less than a
month before, in the same mine, for the same violation,
involving the same type of vehicle, he was of the opinion
that there was "no likelihood" of such an occurrence (RX-1) .
Therefore, I conclude that the respondent has effectively
impeached the inspector by his own prior inconsistent
statement on the ultimate issue of this case.
Further, a
second inspector, Mr. Light, also had occasion to write a
safeguard for this identical violation of the same standard,
in the same mine and involving the same type of equipment
(GX-4). His opinion was that the occurrence of the event
against which the cited standard is directed was "unlikely."
Additionally, I note that an inspector could change his mind
over a period of time about the seriousness of a particular
regulatory violation but here there is less than a month
between Inspector Wehr's "writings" on this identical
subject and in any case, there is no evidence in this record
of any empirical substantiation of his current opinion that
this violation was "S&S." I therefore aonclude that the
cited violation was non "S&S."
Turning now to the matter of the inoperative dead man
switch cited in§ 104(a) Citation No. 2399220, the issue
is once again whether this admitted violation is a •significant and substantial" one.
I have some problem with what I perceive to be an inconsistent position taken by the Secretary with regard to
the importance of the dead man switch as a safety item on
jeeps used in the mines.
To begin with, the Act directs

1003

the Secretary of Labor to develop mandatory safety standards
to protect the nation's miners. The Secretary, in his
wisdom, has so far not seen fit to require the installation of dead man switches on personnel carriers. Therefore,
the inoperative dead man switch complained of herein was
not required to be installed on the jeep to begin with, and
could in fact have been completely removed by the operator
at any time. The only violation herein involved leaving the
switch on the jeep in an inoperable condition.
In this one case, the Secretary takes the position that
this is a "significant and substantial" violation of the
mandatory standards "reasonably likely" to cause a "fatal"
injury. Yet, at the same time, the Secretary admits that
the dead man switch is not a required piece of equipment on
this jeep and in fact other jeeps are operating without one
in the same mine, apparently with the Secretary's blessing.
I conclude that if it truly is a "significant and
substantial" safety hazard to operate a personnel carrier
with an inoperable dead man switch, the Secretary, by regulation, would require such a switch in the first instance.
At the hearing, the Secretary's counsel argued that a
jeep that has an inoperable dead man switch is not the
equivalent of a jeep without such a switch at all, because
of the potential for reliance on the availability of the
switch and the assumption that it works. A case for this
position possibly could be made. However, the evidence
adduced at the hearing was to the effect that the only
accident that any witness could recall involving a throttle
sticking open was on a vehicle that didn't have a dead man
switch installed, and there
was presumably not in violation of anything. The only other evidence on the significance of this violation was an opinion which was not
factually supported in the record.
The test is whether this violation has a reasonable
likelihood of resulting in serious injury.
I do not find
any evidentiary support for that in
s record and therefore I do not find that the violation was "significant and
substantial." Mathies Coal Company, supra.
Civil Penalty Assessment
On the basis of the foregoing findings and conclusions,
and considering the criteria contained in section llO{i) of
the Act, respondent is assessed a civil penalty in the

1004

amount of $20 for section 104(a) Citation No. 2397217,
issued on February 1, 1985, for a violation of 30 C.F.R.
§ 75.1403 and $20 for section 104(a) Citation No. 2399220,
issued on March 19, 1985, for a violation of 30 C.F.R.
§ 75.1725(a).
ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $40 within thirty (30) ·days of the date of this
decision.
Payment is to be made to MSHA, and upon receipt
of same, this proceeding is dismissed.

Roy J:.
aurer
Admi istrative Law Judge

Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market St., Rm. 14480, Philadelphia, PA
19104 (Certified Mail)
George S. Brooks, Esq., 1200 First Security Plaza, Lexington,
KY 40507 (Certified Mail)

yh

1005

FEDERAL MINE SAFETY AND HEALTH REV!EW COMMISSION
OFFICE OF AOMINISTRA TIVE LAW JUDGES
333 W. COtFAX AVENUE. SUITE 400
DENVER, COlORADO 80204

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

JUN 30 \986

CIVIL PENALTY PROCEEDING
Docket No. WEST 85-55-M
A.C. No. 04-04700-05502

v.

Digmor Placer Mine

C. D. LIVINGSTON,
Respondent
DECISION
Appearances: Carol A. Fickenscher, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco, California,
for Petitioner;
Mr. C. D. Livingston, Iowa Hill, California,
pro
, for Respondent.
Before:

Judge Lasher

This proceeding was initiated by the filing of a petition
for assessment of a civil penalty by the Secretary of Labor
(herein the Secretary} on April 1, 1985, pursuant to Section
llO(a) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. Section 820(a)(l977) (herein the Act). A hearing on the
merits was held in Sacramento, California on ~pril 9, 1986, at
which the Secretary was represented by counsel and the Respondent, Mr. C.D. Livingston, represented himself.
The Secretary seeks assessment of a penalty against
Respondent for violation of 30 C.F.R. § 57.4-52 l; which was
described in combination Citation (Section 104(a)) Order (Section
107(a)) Noo 2363585 issued May 17, 1984, as follows:
"A 4-cylinder gasoline powered front-end loader is
being used underground to muck out the sand and gravel
and hawl [sic] the material to the surface.

CO Drager gas detector measurements at the face 50 ppm
one stokeo"

1/

"Gasoline shall not be stored underground, but may be used
only to power internal combustion engines in nongassy mines that
have multiple horizontal or inclined roadways from the surface
large enough to accommodate vehicular traffic. Roadways and
other openings shall not be supported or lined with combustible
material. All roadways and other openings shall be conected with
another opening every 100 feet by a passage large enough to accommodate any vehicle in the mine ...
1006

The Citation/Order also charged that the violation was
"significant and substantial" (herein "S & S") ~/ and that an
imminent danger existed.
The preponderant reliable and probative evidence of record
established the following sequence of events and factual
conformation.
The subject gold mine, owned and operated by Respondent and
referred to in this matter as the Digmor Placer Mine, is not a
gassy mine (Tr. 51-53). However, it has but one horizontal or
inclined roadway from the surf ace large enough to accommodate
vehicular traffic, in this case, a tunnel (Tr. 28).
On May 17, 1984, MSHA Inspector Nicholas Esteban, having
been assigned to inspect another mine, a surface mine, located on
the same Digmor Placer property, observed the subject underground
gold mine and undertook to inspect the same (Tr. 14-15, 39-41,
46-49, 71). Respondent Livingston owns the 80-acre Digmor Placer
property, and leases the surface mine to others (Tr. 71, 72, 77).
Inspector Esteban came upon the Respondent (Tr. 15) who at
first refused to allow his mine to be inspected on the basis that
his was a "one-man" operation (Tr. 15) but subsequently acceded
to the Inspector's request and signed a CAV (compliance
assistance visit} request after the Inspector indicated to him
that the inspection was to be a "courtesy" inspection and after
the Inspector told him that no penalties would derive from the
issuance of any notices of violation 3; (Tr. 15, 16, 18, 21, 22,
42, 43, 60). The Inspector and Mr. LTvingston then walked into
the mine (Tr. 23).
The Inspector took a Drager gas detector measurement which
indicated the air inside the mine was contaminated with carbon
monoxide (50 parts per million> (Tr. 23). The Inspector informed
Mr. Livingston of this result and advised him a Citation/Order
rather than a CAV "notice" would be issued for this violation
(Tr. 24). Mr. Livingston became upset at this point, but ad-

~j

In Secretary v. Consolidation Coal Company, 6 FMSHRC 189
(1984), the Commission held that S & S findings may be made in
connection with a citation issued under. Section 104(a) of the Act.
Considering this ruling in conjunction~with U.S. Steel Mining
Company, 6 FMSHRC 1834 (1984), where tne mine operator was allowed to contest s & s findings entered on Section 104(d}(l)
citations in a penalty case, it is concluded that S & s findings
contained in a Section 104(a) Citation similarly are properly reviewable in this penalty proceeding.
3/ Notices of violation, which are issued on CAVs instead of
Citations, are on a form approximately 1/3 the size of a regular
Citation form (Tr. 20).

1007

mitted he had been using the gasoline-powered front-end loader in
question that morning and also the previous day to muck around a
fan (Tr. 23-24, 30, 70). Mr. Livingston also admitted he had
been using the loader underground 2 or 3 days a week for a period
of approximately 2 months (Tr. 72) and that at times other miners
were present (Tr. 73).
The gasoline-powered engine emitted carbon monoxide and it
did not have a water scrubber or a catalytic converter "to help
burn off the carbon monoxide." (Tr. 26).
Inspector Esteban advised Mr. Livingston that he could not
leave the property without issuing the imminent danger order (Tr.
24, 31) because'someone could be killed using a gasoline-powered
engine underground. The mine did not meet the regulation's
criteria for using gasoline powered equipment (Tr. 27, 28) since
it did not have multiple roadways from the surface, but only a
single tunnel (Tr. 28, 52, 54). There existed a serious hazard
from carbon monoxide poisoning (Tr. 26, 30, 32, 34, 72-73, 75),
which could result in a fatality (Tr. 30, 34). As many as 4
persons had worked in the mine in the past (Tr. 28, 44-46, 66,
67, 76), and Mr. Livingston and his "partner" were currently
working in the mine (Tr. 28, 72-73).
The lethal nature of carbon monoxide poisoning was described
by the Inspector as follows:
"Because if he gets a high concentration of carbon
monoxide, you can't smell the gas, you can't detect it.
All of a sudden you're down, and you're dead."
(Tr. 34).
Mr. Livingston had been using the gasoline-powered loader
two or three times a week for 4 or 5 years (Tr. 66). He intended
to dispose of the loader at the time of the inspection and so
advised the inspector (Tr. 61-62). Mr. Livingston thereafter
sold the loader to one Douglas Mead, who he first characterized
as a "junk dealer" {Tr. 64), but subsequently in his testimony,
it also turned out that Douglas Mead was one of those who worked
in the mine (Tr. 67) and the same person Mr. Livingst~n said was
his "partner" (Tr. 73). Mr. Livingston closed the mine 2 or 3
weeks after the CAV inspection (Tr. 62, 76).
Following the inspection, Inspector Esteban issued 4
CAV-type notices of violation CTr. 22) in addition to the
Citation/Order which is the subject of this proceeding.
At the hearing, Mr. Livingston who, it should again be
mentioned, was not represented by counsel, offered an undated
letter (Ex. R-1) which he had sent to the Secretary's counsel
subsequent to the issuance of the Citation/Order. In the first
paragraph of this letter he sets f.orth what appears to be his
primary contention (Tr. 75) in this matter, i.e., t.hat a
"one-man" operation is not subject to the Act:

1008

"Please be advised that I do indeed protest the proposal
for assessment of a civil penalty against me for an
alleged violation of the Mine Safety and Health Act of
1969. Since I am a private citizen, work alone and hire
no employees, I declare myself to be exempt from any
rules and regulations of the Dept. of Labor. You, nor
anyone else has shown proof that it was the intent of
Congress to subject the one-man mine operator to the
burden of these rules and regulations. Neither you, nor
anyone in your off ice has ever quoted a court case that
pertained to a one-man operation. Every case you cite
has had paid employees or several people working."
However, at the hearing, Mr. Livingston testified under oath
as to a somewhat contrary picture of the employment situation at
his mine.
Q.
Do you have friends or acquaintances or relatives that
have worked at the Digmor Placer with you, and when I use
the term "Digmor Placer", I'm referring to the specific mine
that Mr. Esteban inspected?
The Witness:

Do I ever have someone with me?

Q.

During the time that you were working it?

A.

Okay.

Q.

Who were those people that helped you?

A.

My son.

Q.

Anyone else?

Occasionally I

have had people help me.

Ao
Yeah.
There was a Ron Stockman. He helped me for just
a few days is all, but that didn't last long.
Q.

Anyone else?

A.

Yeah, Douglas Mead.

Q.

So, you really weren't working that by yourself?

A.

I was working it alone by myself most of the time.

Q.

But you had other people there?

A.

I had, occasionally, some people there, yes.
CTr. 66, 67).

He helped me for a while.

Based on his sworn testimony, Mr. Livingston's contention
that his was a "one-man" operation is rejected. Regardless, his
Digmor Placer mine is covered by the 1977 Mine Safety Act.
Secretary of Labor v. C.D. Livingston, 7 FMSHRC 1485 (1985).
1009

Mr. Livingston also complains of the Inspector's action in
first telling him there would be no penalties assessed and then
finding a violation and issuing the Citation/Order in question
for which a penalty is sought herein:
"The point I'm trying to make is that he told me there
would be no finable, assessable violations per se; and
you won't have to pay a fine and this and that, and then
he writes me up one for a loader which I already told
him I was getting rid of."
(Tr. 63)
It is first noted that the "compliance assistance visit"
process is not provided for in the Act. The Secretary, although
requested (Tr. 81), has not furnished the source of MSHA's CAV
policies. On the other hand, the gold mine in question is subject to the Act and inspections thereof are mandated by the Act.
Section 103Ca), 30 U.S.C. § 815. Regardless of the Inspector's
promises, the Act requires that a penalty be assessed when a
violation occurs. Old Ben Coal Co., 7 MSHRC 205, 208 (1985);
Section llO(a), 30 U.S.C. § 820. The record is not absolutely
clear that the Inspector utilized the CAV policy to overcome
Respondent's refusal of entry, but it strongly appears such was
the case (Tr. 10, 15, 16, 42, 43, 60) and I do so infer and
find.
A preliminary question is thus posed: whether Respondent,
had any right to deny entry to begin with.
In the circumstances established in this record, I find that Respondent had no
right to deny the Inspector entry to the mine to conduct an
inspection.
In Secretary of Labor v. Calvin Black Enterprises, 7
MSHRC, 1151 (1985), the Commission succinctly enunciated the
principles relating to such denial of entry:
The law on denial of entry under the mandatory inspection provisions of section 103(a) of the Act is
clear. Section 103(a) expressly requires that no advance notice be given an operator prior to an inspection
and gives authorized representatives of the Secretary an
explicit right of entry to all mines for the purpose of
performing inspections authorized by the Act. The
Supreme Court has upheld the constitutionality of thses
provisions. Donovan v. Dewey, 452 U.S. 594, 598-608
(1981). Consistent with that decision, we have held that
an operator's failure to permit such inspections constitutes a violation of section 103(a). Waukesha Lime
& Stone Co., Inc., 3 FMSHRC 1702, 1703-04 (July 1981)~
United States Steel Corp., 6 FMSHRC 1423, 1430-31 (June
1984)."
(emphasis supplied).
11

1010

It is clear that regardless of Respondent's stand to the
contrary, his mine was subject to inspection as required by the
Act and that likewise a penalty is required to be assessed for a
violation.
In view thereof, there is no support from a purely
equitable standpoint for Respondent's argument that the Inspector's "no penalty" promise should bind the Secretary and
excuse Respondent from the requirements of the Act. Certainly
the Inspector's promise does not in these circumstances-where Mr.
Livingston's refusal to permit an inspection is itself a violation-work a serious injustice to Mr. Livingston,
See U.S. v.
Lazy F.C. Ranch, 481 F.2d 985 (9th Cir, 1973). Similarly, since
several miners were endangered by Respondent's intransigence, the
public interest as reflected in the purposes behind the safety
standard infracted would not be served by estopping the enforcement agency from disavowing the misstatement of its agent.
In any event, in Secretary of Labor v. King Knob Coal
Company, Inc., 3 FMSHRC 1417 (1981), the Commission has rejected
the doctrine of equitable estoppel. It also viewed the erroneous
action of the Secretary (mistaken interpretation of the law leading to prior non-enforcement) as a factor which can be considered
in mitigation of penalty, stating:
"The Supreme Court has held that equitable estoppel
generally does not apply against the federal government.
Federal Crop Insurance Corp v. Merrill, 332 U.S. 380,
383-386 (1947); Utah Power & Light Co. v. United States,
243 U.S. 389, 408-411 (1917). The Court has not expressly overruled these opinions, although in recent years
lower federal courts have undermined the Merrill/Utah
Power doctrine by permitting estoppel against the government in some circumstances. See, for example, United
States v. Georgia-Pacific Co., 421 F.2d 92, 95-103 (9th
Cir. 1970). Absent the Supreme Court 1 s expressed approval of that decisional trend, we think that fidelity
to precedent requires us to deal conservatively with
this area of the law. This restrained approach is
buttressed by the consideration that approving an estoppel defense would be inconsistent with the liability
without fault structure of the 1977 Mine Act. See El
Paso Rock Quarries, Inc., 3 FMSHRC 35, 38-39 (1981).
Such a defense is really a claim that although a violation occurred, the operator was not to blame for it.
Furthermore, under the 1977 Mine Act. an equitable consideration, such as the confusion engendered by conflicting MSHA pronouncments, can be appropriately weighed in
determining the appropriate penalty (as the judge did
here)."
But here, in contrast to the situation in King Knob, the
Inspector's inpropriety did not induce or otherwise result in the
commission of the violation itself Cthe Respondent was solely to
blame for this violation), and there being no legal or equitable

1011

justification for Respondent's opposition to the inspection, no
basis exists for reduction of the penalty amount otherwise
warranted.
The Respondent does not challenge the occurrence of the
violation. Although Respondent did not challenge that it was a
significant and substantial (S & S) violation or that it resulted in an imminent danger, it should be mentioned with regard to
the S & S charge in the Citation that the Commission has held
that a violation is properly designated S & S "if, based on the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or'illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FSMHRC 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
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove: Cl)
the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard--that is, a measure of
danger to safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious
nature."
The Commission has 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). The Commission has
emphasized that, in accordance with the language of section
104(d)(l), it is the contribution of a violation to the cause and
effect of a hazard that must be S & S. See 6 FMSHRC at 1836.
On this record, and in view of the findings heretofore made,
there is no question but that a violation of 30 C.F.R. § 57.4-52
occurred and that a 11 measure 11 of danger to safety was contributed
to by such.
Based on the prior findings as to the absence of multiple
roadways into the mine, the lethal nature of carbon monoxide
poisoning, the results of Inspector Esteban's gas detector
measurements, (Tr. 23, 28-32), the lack of a water scrubber and
catalytic converter on the engine, and the number of miners
(including Mr. Livingston when he was working alone) who were
exposed to the danger (Tr. 71-73), it is clear that there was a
reasonable likelihood that the hazard (carbon monoxide poisoning)
contributed to by the violation would result in an injury of a
reasonably serious nature, including a fatal injury. The Secretary is thus found to have impressively established his burden of
proof that the violation was S & S.
1012

Turning now to the question of whether the imminent danger
aspect of the Citation/Order is supported in the record, it is
first noted that there is some similarity in the factual foundation required for the special "S & S" finding and that sufficient
to support a reasonable belief on the part of an inspector that
an imminent danger exists.
It would seem that in all cases a
violation which results in an imminent danger would also be S &S
while the reverse would not necessarily be true. Determining
whether the factors constituting the instant violation, taken in
combination with evidence relating to S & S (similar to imminent
danger except in degree and immediacy) as well as other
evidence-which is not necessarily relevant to the violation or
the S & S determ1nation - meets the level of proof required to
justify the "imminent danger" order is aided by a brief
consideration of the evolution of this term.
The term "imminent danger" is found in both the Federal Coal
Mine Health and Safety Act of 1969 and the Amendments thereto
which comprise the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 801, et seq., and the definition thereof currently
found in section 3(j) of the 1977 Act is for all intents and
purposes identical in both Acts, to wit:
"the existence of any condition or practice in a coal
or other mine 4; which could reasonably be expected to
cause death or-serious physical harm before such condition or practice can be abated."
Historically, the first tests for determining whether an
imminent danger exists or not were set forth in Freeman Coal
Mining Corp., 2 IBMA 197, 212 (1973), and Eastern Associated Coal
Corp., 2 IBMA 128, 80 I.D. 400 (1973), aff 'd Eastern Associated
Coal Corp. v. Interior Board of Mine Operations Appeals et al.,
491 F.2d 277 (4th Cir.v 1974). In Eastern, supra, the Board of
Mine Operations Appeals, formerly a division of the Interior
Department 1 s Office of Hearings and Appeals, herein "BMOA", held
that:

* * * an imminent danger exists when the condition or
practice observed could reasonably be expected to cause
death or serious physical harm to a miner if normal mining
operations were permitted to proceed in the area before the
dangerous condition is eliminated. The dangerous condition

4/

By virture of Section 102(b)(4) of the 1977 Mine Act the

~hrase "or other" was added after the word «coal" to expand the

Act's coverage to all mines.

1013

cannot be divorced from the normal work activity. The
question must be asked - could normal operations proceed
prior to or during abatement without risk of death or
serious physical injury? If the answer to this question is
"no,' then an imminently dangerous situation exists and the
issuance of a 104(a) withdrawal order is not only proper but
mandatory under the Act.
In Freeman, supra, the BMOA elaborated on its decision in
Eastern and held that the word "reasonably" as used in the definition of imminent danger necessarily means that the test of
imminence is objective and that the inspector's subjective
opinion is not necessarily to be taken at face value. The Board
also gave this 2-sentence test of "imminent danger:"

* * * would a reasonable man, given a qualified inspector's
education and experience, conclude that the facts indicate
an impending accident or disaster, threatening to kill or
to cause serious physical harm, likely to occur at any
moment, but not necessarily immediately? The uncertainty
must of of a nature that would induce a reasonable man to
estimate that, if normal operations designed to extract coal
in the disputed area proceeded, it is at least just as
probable as not that the feared accident or disaster would
occur before elimination of the danger. (Emphasis added)
The United States Court of Appeals for the 7th Circuit in Freeman
Coal Mining Company v. Interior Board of Mine Operations Appeals,
et al., 504 F.2d 741 (1974), while quoting with surface approval
the BMOA's definition of "imminent danger," went on to add its
own:
An imminent threat is one which does not necessarily come
to fruition but the reasonable likelihood that it may,
particularly when the result could well be disastrous, is
sufficient to make the impending threat virtually an
immediate one" (Emphasis supplied)
In Canterbury Coal Corporation v. Mining Enforcement and
Safety Administration (MESA), Docket No. PITT 74-57 (January 24,
1975, ALJ Decisioni unreported), the extreme but plain meaning of
the second sentence of the BMOA's imminent danger test was
questioned:
var conclude, after reviewing the Board's decisions in Freeman and Eastern, the decisions from the 4th and 7th Circuits
on appeal therefrom, and subsequent Board decisions, that
the Board, by its use of the phrase "at least just as probable as not" in the Freeman case, did not set up a pure
mathematical equation for determining whether it is reason-

1014

able for an inspector to find imminent danger. More directly, I do not believe the Board intended to require that the
odds be even that if normal operations continued the danger
would come to fruition, or to hold that there must appear to
be a 50/50 chance ••• that the tragedy or disaster would
occur, to justify the issuance of a closure order.
It
most certainly is clear from factual analysis of the Board's
numerous "imminent danger" decisions that the lives and
well-being of miners are not to ride on the same law of
statistical probabilities found in the toss of a coin. Accordingly, I reject any such interpretation of the Freeman
test."
Thereafter, during the process of the enactment of the 1977
Act, the Senate Committee on Human Resources, made this
statement:
"The Committee disavows any notion that imminent danger can
be defined in terms of a percentage of probability that an
accident will happen; rather the concept of imminent danger
requires an examination of the potential of the risk to
cause serious physical harm at any time. It is the Committee's view that the authority under this section is essential to the protection of miners and should be construed
expansively by inspectors and the commission."
(Leg. Hist.
of the Federal Mine Safety & Health Act of 1977, 95th Cong.,
1st Sess. (hereinafter Leg. Hist. 1977 Act) at 38.)
The Commission, in Pittsburg & Midway Coal Mining Company v.
Secretary of Labor, (2 MSHRC 787, 788~ 1980) also set a different
course for approaching imminent danger questions:
"
o
o
we note that whether the question of imminent danger
is decided with the "as probable as not" gloss upon the
language of section 3{j), or with the language of section
3(j) alone, the outcome here would be the same. We therefore need not, and do not, adopt or in any way approve the
"as probable as not" standard that the judge applied. With
respect to cases that arise under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq., we wi
examine anew the question of what conditions or practices
constitute an imminent danger."
(emphasis added}

Research of this question leads one to believe that the
literal meaning of the "at least just as probable as
not 11 (emphasis supplied) language, has for the most part been
expressly discarded or otherwise ignored.
In studying the past
difficulties of various tribunals to describe what constitutes an
imminent danger, one is reminded of the recent answer of a
Supreme Court Justice when asked what pornography was: "While I
can't put it into words, I know it when I see it." But also, it
is well established that the Mine Act and the standards

1015

promulgated thereunder are to be interpreted to ensure, insofar
as possible, safe and healthful working conditions for miners.
Westmoreland Coal Co., v. FMSHRC, 606 F.2d 417, 419-420 (4th Cir.
1979); Old Ben Coal Co., 1 FMSHRC 1954, 1957-58 (1979); Secretary
of Labor v. Pittsburg & Midway Coal Mining Company, 8 FMSHRC 4
(1986). Accordingly, the "at least just as probable as not"
formula contained in the BMOA's Freeman decision, supra, will not
be used here as the sounding board for determining the existence
of imminent danger.
Since the Commission's Pittsburg & Midway decision, there
have been relatively few imminent danger matters in litigation
before the Commission. Under the 1977 Act, decisional emphasis
seems to be on the individual factual configurations involved
rather than on discrete tests and formulas for determining
imminent danger. See, for example, Secretary of Labor Vo U.S.
Steel Corporation, 4 FMSHRC 163 (1982). At this time, the Act's
section 3(j) definition appears to be the primary legal touchstone. Evaluating the dangerous condition or practice - whether
or not a violation-in the perspective of continued mining
operations also appears to be a prerequisite in determining the
validity of an imminent danger order. There also is a case for
treating these as prerequisites: (1) that the hazard (risk) foreseen must be one reasonably likely to induce fatalities or injuries of a reasonably serious nature, and (2) that such hazard
or risk have an immediacy to it, that is, it could come to realization "at any time."
In adopting the above concepts, a review of the factual
underpinnings for the Inspector's conclusions is required.
It is
found therefrom that the Inspector properly issued an imminent
danger order based on (a) those findings previously made in
connection with the S & S issue and (b) these additional probative evidentiary factors:
1. Carbon monoxide is undetectable, as the Inspector
testified:
if he gets a high concentration of carbon monoxide,
you can 1 t smell the gas, you can't detect it. All of a
sudden you're down, and you're dead." (Tr. 34)
11

2. Respondent's admission that he used the front-end loader
"two or three days a week" over a period of four or five years
{Tr. 66, 72>, and underground for a period of 2 months (Tr.
70-72) on occasions when other miners were present (Tr. 73}.
3. Respondent's admission that he knew that operating the
gasoline-powered loader was dangerous CTr. 75) coupled with the
extent of his prior use of the same compels the inference of the
probability that the loader would have continued to be used under
improper and dangerous conditions.

1016

4. A fan in the mine which Respondent thought would clear
the air when the loader was running was actually insufficient for
this purpose (Tr. 31, 32).
Based on the foregoing substantial evidence it is concluded
that the Inspector exercised correct and reasonable judgment in
determining that an imminent danger existed on May 17, 1984,
since there existed both Cl) a practice and (2) conditions in the
subject mine which reasonably could be expected to cause death or
serious physical harm at any time had normal mining operations
been permitted to continue and before such condition and practice
could have been abated. The imminent danger withdrawal order is
thus affirmed.
RULING ON SECRETARY'S MOTION
The Secretary, at the end of his post-hearing brief received
May 23, 1986, and in the 11th hour of the Judge's jurisdiction in
this matter, states that in keeping with the Secretary's "policy
of conducting Compliance Assistance visits, a penalty should not
have been assessed", going on to add:
"Since the inception of the CAV program in 1979, MSHA
policy has been to not propose penalties for violations
observed during the course of a CAV reopening inspection
(Metal - Nonmetal Assistance Program) or § 303(x) reopening inspection (Coal Mine Assistance Program). This violation was not identified as observed during a CAV inspection, hence, trial counsel is now advised that it inadvertently received a proposed penalty."
(emphasis added)
The last sentence of the Secretary 1 s brief more clearly
indicates what the Secretary intended:
"Plaintiff therefore withdraws the penalty assessment
and respectfully requests that the citation/order be
upheld."
The requests therein for both (a) withdrawal, and (b) review
of the Citation/Order are contradictory. Thereafter, in response
to my Order to Show Cause, the Secretary clarified this motion to
show that he wa~ moving to withdraw the petition and that indeed
such should result in dismissal of the entire proceeding and
preclude review of the Citation/Order.
Commission Rule 11 provides that a party may withdraw a
pleading at any stage of a proceeding with the approval of the
Commission or the Judge". (emphasis supplied). Both the form and
timing of the attempted withdrawal here are of some concern since
the unsupported motion comes after the matter has proceeded
through an adversary hearing. Nevertheless, since it is clear
that the Secretary does not wish that a penalty be assessed in
this de nova proceeding before the Commission for the violation
1017

found and since the Commission's Rule 11 requires the judge's
approval before such can be accomplished, an exercise of discretion and a ruling thereon is required. Here, at the
Secretary's instigation, this matter was fully litigated on the
record in an adversary proceeding provided for in the Act, and
of more importance, the Secretary clearly established that a
violation occurred (admitted by Respondent). The Secretary has
not shown-or alleged-any basis why or how Section llO(a) of the
Act can be ignored. The impropriety of the Inspector's CAV
promises not to issue citations was litigated. As above noted,
Section llO(a) r,equires that a penalty be assessed when a
violation occurs and this also is a principle of mine safety law.
See U.S. Steel Mining Co., Inc.! 6 FMSHRC 1148 (1984)~ Tazco,
Inc., 3 FMSHRC 1895 (1981). Whatever the Secretary's CAV
procedures are - again the Secretary, although requested (Tr.
81), has not submitted any written documentation reflecting what
his CAV procedures or policies are - the Secretary has not shown
how a mandatory provision of the Mine Act can be waived in this
matter or why it should be. I am unaware of any basis upon which
such can be waived. Even the Secretary's "policy" as articulated
in his brief - applicable only where a mine is being reopened isn't clearly relevant. Also, and as previously found, the
Secretary should not be estopped from enforcing the Act and the
publicus interest in this matter.
Some situations where the Secretary, after Commission
jurisdiction attaches, might be permitted to drop its prosecution
are usefully compared:

1. where the parties, before entry of a final agency
decision, reach an appropriate settlement;
2. where the Secretary, after further investigation on or
f the record of a formal adversary hearing, concludes that a
olation was not committedj
3. where some late-discovered jurisdictional defect is
d:Lscovered1
As best I divine it, if it is not self-application of the
estoppel defenseF the Secretary 1 s purpose here is simply to
protect the credibility of its CAV process. But this is both an
~nusual and isolated case where such is not significantly
threatened. As previously discussed, there certainly is no
inequity or unfairness which would result from not dismissing
this matter. Mine safety clearly is best served by not aborting
~he proceeding at this juncture; where the public interest rests
is well demonstrated on this record. Dismissal of this de novo
proceeding where the Commissionis jurisdiction has been locked in
and cl record developed would more likely bring in to question the
proper discharge of the administrative-judicial responsibility
than the enforcement process. Accordingly, in the exercise of my

1018

discretion under Rule 11, the motion of the Secretary to withdraw
the petition for penalty assessment herein is denied. ~/
ASSESSMENT OF PENALTY
It has previously been shown that the violation occurred as
charged in Citation/Order No. 2363585 and that both the Inspector's special S & S findings and finding that an imminent
danger existed are supported in the record. There remains the
determination of an appropriate penalty. The mine in question is
a very small one which is now out of business (Tr. 62). Since
there were no previous inspections (Tr. 63) Respondent has no
history of previous violations. Respondent makes no claim that
payment of a penalty to use the words of the Act, will jeopardize
"his ability to,continue in business", or, more appropriately
here, that he is unable to pay a penalty. 6; Since Respondent
never used the front-end loader in question after the Citation/Order was issued, it is concluded that Respondent, after
notification of the violation, proceeded in good faith to
promptly achieve compliance with the safety standard violated.
The record is clear that this was a serious violation which
created an imminent danger and that Respondent was highly
negligent in its commission (Tr. 34, 75). The Inspector's
indecorous preliminaries, as previously noted, do not call for a
downward penalty adjustment. After weighing these various
penalty assessment criteria mandated by the Act, a penalty of
$150.00 is found appropriate.
ORDER
1.

Citation/Order No. 2363585 is affirmed in all respects.

2o
Respondent, if he has not previously done so, shall pay
the Secretary
Labor within 30 days from the date hereof the
sum of $150.00 as and for a civil penalty.

~d.~p{_
Michael A. Lasher, Jr.
Administrative Law Judge
c~/

It may be that as a matter of supporting enforcement policy
the Secretary should have the absolute right to withdraw his
initial pleading at any time before final decision by (a) the
trial level judge or (b) the Commission. I am, however, unable
to draw such a line absent clarifying Commission policy or
distinguishing precedent. The Secretary has not cited, nor do I
know of, any basis for such proposition. The facts of this
particular matter do not provide an illustration for removing
Commission review of withdrawal requests.
~/
In the absence of proof that the imposition of otherwise appropriate penalties would adversely affect a mine operator's
ability to continue in business, there is a presumption that no
such adverse affect would occur. Sellersburg Stone Company, 5
FMSHRC 287 (1983), aff'd 736 F.2d 1147 (7th Cir., 1984).
1019

Distribution:
Carol A. Fickenscher, Esq., Office of the Solicitor, U.S. Department of Labor, 11071 Federal Building, 450 Golden Gate Avenue,
San Francisco, CA 94102 (Certified Mail)
Mr. C.D. Livingston, P.O. Box 661, Iowa Hill, CA
(Certified Mail)

/blc

1020

95713

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

CLIMAX MOLYBDENUM COMPANY,
Contestant

JUN 3 0 1986

CONTEST PROCEEDING
Docket No. WEST 85-96-RM
Citation No. 2358524; 3/20/85

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

Docket No. WEST 85-97-RM
Citation No. 2358525; 3/21/85
Docket No. WEST 85-99-RM
Citation No. 2356413; 3/21/85
Docket No. WEST 85-100-RM
Citation No. 2356414; 3/21/85
Climax Mine

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 85-120-M
A.C. No. 05-00354-05510
Climax Mine

v.
CLIMAX MOLYBDENUM COMPANY,
Respondent
DECISION
Appearances:

Before:

Richard w. Manning, Esq., Climax Molybdenum Company,
Greenwich, Connecticut,
for Contestant/Respondent;
Robert J. Lesnick, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Respondent/Petitioner.

Judge Carlson

These consolidated proceedings arose out of inspections conducted by representatives of the Secretary of Labor (hereafter
"the Secretary") at the underground molybdenum mine operated by
Climax Molybdenum Company (hereafter "Climax") at Climax, Coloradq.
The inspections took place on March 20 and 21, 1985. The
specters issued five citations for violations of mandatory safety
standards promulgated by the Secretary. Each of these citations
was timely contested by Climax. Later, the Secretary proposed
penalties for the alleged violations. These proposals appear in

1021

the single civil penalty proceeding docketed as WEST 85-120-M,
which was consolidated for hearing with the individual contest
cases. y
The consolidated proceedings were tried under the provisions of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (hereafter "the Act"). Both parties
filed post-hearing briefs.
WEST 85-96-RM, Citation No. 2358524
Inspector Jake DeHerrara issued this citation on March 20,
1985, because openings in a flume board constituted an alleged
falling hazard under 30 C.F.R. § 57.11-12. 2/ That standard
provides:
Openings above, below, or near
travelways through which persons
or materials may fall shall be protected by railings, barriers, or
covers. Where it is impractical
to install such protective devices,
adequate warning signals shall be
installed.
The evidence shows that the cited condition existed at or
near a switch-point on the railroad which runs through an underground haulage drift. The flume is a shallow ditch-like drain
which parallels the track and drains water from the mine. The
top of the flume is covered by boards (two adjacent 2 by 12 1 s)
to keep debris from entering the flume and clogging it.
The evidence also shows that the haulage drift is approximately 12 feet wide with the track running down the center.
The track is 3 feet in width, measured between the rails, which
leaves about 4 feet of open drift floor on the side of the tracks
opposite the side where the flume is located.
Witnesses for both parties agreed that the miners walking
through the haulage drift frequently use the flume boards as a
walkway because they generally offer the smoothest surface. On
the other hand, miners may also walk on the opposite side of the
rails, or between the rails. The drift floor is often wet and
muddy, and isu by its nature, rough and uneven.

1/ Originally, Docket No. WEST 85-98-RM was included in the
consolidation. That contest was withdrawn by Climax at the
hearing, however, and was severed for disposition by separate
order issued on January 21, 1986.
2/

The standard is now re-codified as 30 C.F.R. § 57.11012.

1022

According to the inspector, the opening was 14 inches long,
14 inches deep, and 10 inches wide. Measurements provided by
Climax were not significantly different. This opening lay between the two railroad ties on either side of the metal throw
rod which opens and closes the switch. The opening also accommodates the bridle bar mechanism of the switch.
While Climax concedes that the opening existed, it adduced
testimony through one of its own safety inspectors, Mr. Kenneth
Johnston, that the switch openings were necessary to furnish
access to the switches to clean out debris. Storke level railroad switches number about 100, according to Johnston, and only
a small number o these are covered. About half, however, do
not cross flume boards as does the one cited. Those which are
covered, Climax's safety and health manager Dan Larkin testified,
are generally on curves or at other points where debris from the
loads of passing cars is likely to sift into the openings and
interfere with the switches' operation (Tr. 85). Larkin maintained that it was 11 possible 11 but not "practical" to cover the
part of the switch openings between the tracks because the cover
would interfere with operation of the switches (Tr. 51-52). He
acknowledged, however, that the part of the opening outside the
rails (between the throw lever and the nearer track) could be
covered (Tr. 68).
The undisputed evidence showed that a second and somewhat
smaller opening existed in the flume boards near the opening for
the throw rod. This opening was also about 14 inches long and
width varied between 7 and 4 inches. It, too, was 14 inches
deep. Here it appeared that the flume board had simply been
broken (Tr. 36). 'l'he relative location of the two openings is
shown plainly in the photograph received as government exhibit 1
and the sketch received as Climax's exhibit 2.
The inspector believed that the openings in the boards
presented a clear falling haz~rd to miners walking the flume
boards. He testified that a walker's foot could easily enter
the opening causing a broken or sprained leg or foot (Tr. 18, 26).
He emphasized that the haulageway was not lighted except by the
miners' cap lights. The uneven illumination source increased
the danger, he believed. That the haulageway was not otherwise
lighted is not disputed.
Climax disagrees with the entire thrust of the inspector's
presentation insofar as the hazard was concerned. Mr. Johnston
expressed great doubt that any part of a miner's body would
actually drop through one of the openings causing an injury. 3/

3/ The standard does appear to be aimed at hazards where a
worker may fall through (or partly through) a hole. It does
not, that is to say, encompass mere tripping over objects or
at uneven spots.
1023

He admitted such an accident was "possible" (Tr. 71-72}, but
deemed it highly unlikely. He stressed that the opening at the
switch itself> was at least partly blocked by the throw rod itself, which would support a part of the foot if a miner should
step into the opening. The opening on one side of the rod was
1-1/2 inches, and on the other was 8 inches, he testified.
Johnston, also suggested that the inspector's focus on
flume-board openings was unrealistic since the haulageway floor
was inherently uneven, and obstacles were common. He mentioned
standing water in depressions, rocks, and openings between the
railroad ties. The Secretary has not denied that these features
were present.
In framing its legal argument on this matter,
Climax states in,its post-hearing brief:
In determining whether a particular opening
constitutes a violation of 57.11-12, it is crucial
to consider the location of the opening. An opening of 8 by 14 inches in the floor of a 5-foot wide
elevated walkway may constitute a violation, while
another opening of the same dimensions at a different location would not.
(Climax's brief at 4.)
Further, Climax contends that the openings were not a
citable hazard because in its safety meetings the company routinely warned miners to exercise care in walking the drift,
particularly around switches (Tr. 40-42). Referring to the
miners, Mr. Johnston stated:
"They're told to be very observant
and keep your [sic) eyes open where you're going" (Tr. 41).
Finally, Climax contends that its history of falling accidents in haulage drifts showed that the openings were not a
hazard.
In this regard, Dan Larkin, the company's manager of
safety and health, testified that approximately 28 to 25 percent
of all accidents at the mine since 1979 had been slip-and-fall
incidents. In the same period, however, only about 5 percent of
these occurred in haulage drifts. None involved falls through
openings around track switches (Tr. 87-88).
I must conclude that the preponderant evidence establishes
a minor violation of the cited standard. Climax's argument
that the hazard presented by the openings in the flume boards
constitutes no greater danger than the uneven floor of the drift
generally, or the danger of walking the railroad ties - conditions
which the inspector doubtless saw but did not cite - deserves some
consideration. It would be naive, certainly, to expect a drift
of the sort we deal with here to be as smooth and obstacle-free
as an office~building corridor. The chief difficulty with
Climax's position is that the flume boards presented themselves
as an inviting walkway. The evidence convinces me that, overall,
they offered the smoothest walking surface in the drift. That
miners often choose to walk on them with the operator's approval
is not disputed.
I find that because of the openings, however,
the boards held out a deceptive sense of safety to walkers who

1024

chose that route, a sense not provided by the drift floor or
the railroad ties which tended to be uniformly uneven. Moreover, the 14-inch drops at the flume-board openings are not
inherent in the design and purpose of either the flume or the
track switches; they may be remedied. Climax acknowledges
that some of the switch openings were covered at the time of
citation. This greatly weakens its argument that use of covers
was "impractical." Rather, it appears that it was practical to cover the openings where accumulation of debris was
a problem, and impractical to do so where it was not. The
question appears more one of mere convenience than practicality.
It must also be noted that the smaller opening complained
of in the citation had nothing to do with a switch.
Instead,
the boards had apparently simply been broken off and not repaired or replaced.
Where flume boards are offered as a travelway, it is incumbent on the mine operator to keep them in decent
repair.
We now turn directly to the question of whether either of
the two openings was large enough to represent a realistic possibility that a miner's foot could fall through, thus violating the
standard.
I must agree with Climax that the chances of this
happening are not great.
I further agree that even
a miner's
foot did encounter one of the openings, the openings were narrow
enough that the foot might not fall through. On the other hand,
Climax acknowledges that it is possible that a foot could drop
into the openings and that injury could ensue. From simply looking
at the openings as depicted in the photographs and sketches in
evidence, I must conclude that there is a realistic possibility
that a foot, or a part of one, could drop through. That is sufficient to establish violation.
Climax's argument concerning safety education and the miners'
familiarity with switch openings and other walking hazards in the
drift does not constitute a defense. Where a standard prescribes
certain protective measures to eliminate hazards, a cautious state
of mind cannot be substituted for those measures.
The operator's favorable injury record of falling incidents
in the haulage drifts is commendable, but again is no defense.
It
bears instead upon the-severity of the violation.
The Secretary's citation classifies the violation as 11 significant and substantial" under section 104(d) of the Act.
In Cement
Division, National Gypsum Company, 3 FMSHRC 822 (1981), the Commission defined such a violation as where " ••• there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Although
I am satisfied by the evidence that the falling hazard contributed
to by the openings creates a reasonable likelihood of injury, I am

1025

not satisfied that the likely injury would be of a reasonably
serious nature. On the contrary, I must agree with Climax's
position that where injuries did occur they would be non-serious,
in the nature of scrapes, bruises or minor sprains rather than
the broken bones, or severe sprains envisioned by the inspector.
The violation cannot, therefore, qualify as significant and substantial.
The Secretary proposes a penalty sum of $91.00 for this
citation. The parties have stipulated, however, that should the
violation be found non-significant and substantial, the appropriate penalty would be $20.00.
The record contains evidentiary facts or stipulations regarding the six elements to be considered under section llO(i) of
the Act in assessing penalties. These need not be detailed here.
It is enough to say that nothing in the record shows the stipulated amount
inappropriate. A civil penalty of $20.00 will
therefore be assessed.
WEST 85-97-RM, Citation No. 2358525
This citation nearly duplicates that discussed immediately
above.
Inspector Jake DeHerrera issued it on March 21, 1985, for
another opening in haulage drift flume boards. This, too, was an
alleged violation of 30 C.F.R. § 57.11-12.
The evidence shows that this opening measured 14 inches deep
by 31 inches long and up to 5 inches wide. The only significant
difference between the circumstances here and those in the previous
citation may be summarized as follows:
the opening is not at or
near a railway switch; the opening had a cover, but it had been dislodged and was leaning against the rib, rather than being in place;
the longest dimension of the opening ran the.length of the flume
boards, rather than across them; and the foot traffic could be expected to be less, consisting primarily of six electricians headquartered in a nearby shop area.
In terms of the existence of a violation, none of these differences would alter the result reached for the earlier citation. The
defenses are essentially the same (except for those relating exclusively to switch openings), and are insufficient for the reasons
discussed in connection with that citation.
If anything, the circumstances here are slightly more favorable
to the Secretary. This is so because the opening had previously
been covered.
Nevertheless, this violation does not rise to the "significant
and substantial" level. The credible evidence shows that while
injuries are reasonably likely to occur, they are not reasonably
likely to be serious.
I agree with Climax that slight bruises, mild
sprains, etc., would be the common result of accidents involving this
small opening.
1026

The penalty for this violation will be assessed at $20.00.
This is in conformance with the parties' stipulation regarding
non-significant and substantial violations.
WEST 85-99-RM, Citation No. 2356413
On March 21, 1985, Inspector Elmer Nichols, acting on behalf
of the Secretary, issued a citation charging that Climax was in
violation of the mandatory safety standard published at 30 C.F.R.
§ 57.3-22. !/
That standard provides:
Miners shall examine and test the back,
face, and rib of their working places
at the beginning of each shift and frequently thereafter. Supervisors shall
examine the ground conditions during
daily visits to insure that proper
testing and ground control practices
are being followed.
Loose ground shall
be taken down or adequately supported
before any other work is done. Ground
conditions along haulageways and travelways shall be examined periodically
and scaled or supported as necessary.
The alleged violation took place in one of the fingers rising
from a slusher drift. (See joint exhibits 4 and 5.} The finger
was not in use at the time. A concrete safety plug had been in
place at the upper end. On the day prior to the inspection, miners
had set and shot one round of explosives in the plug, bringing part
of it down. Their purpose was to remove the plug in order to bring
the finger back into production. Miners were continuing the removal work when the inspector arrived at about 10:00 a.m. on the
morning of his inspection. These background facts were not in dispute.
According to Inspector Nichols, when he and Inspector DeHerrera
arrived at the base of the finger, a miner, Kelly Kramp, had just descended a set of ladders after having drilled the face of the finger
preparatory to setting a second round of charges.
At about that time a "handful" of small bits of rock dribbled
down from somewhere, convincing him that the finger was beginning
to "work." He then noticed a piece of concrete in the face which
appeared to him "quite loose." He described it as about the size of
a basketball, and estimated its weight at between 50 to 60 pounds.

4/

Now published, without change, as 30 C.F.R. § 57.3022.

1027

He viewed the concrete {referred to most often in all the testimony as "the rock") from the third step of the bottom ladder in
a set of two six-foot stepladders. This put him about seven or
eight feet from the face. The rock was to the left of the top
step of the upper ladder. The only illumination present was his
cap lamp.
He was immediately concerned that the rock could come down.
DeHerrera and he left very briefly and went to a nearby lunchroom where he wrote out the citation for violation of 30 C.F.R.
57.3-22. He advised that Kramp and the other miner in the crew,
Nick Doran, should not go back up to load holes until the offending
piece of cement was barred down.
The inspector explained that because of the location of the
loose cement he was not concerned that it would fall directly on
the miner or the ladder. Rather, he testified, it would likely
fall on the 4 by 4 wooden brace upon which the upper ladder rested.
This, in turn, would cause the miner and his equipment to fall to
the concrete base of the finger.
Inspector Nichols maintained that when he returned from the
slusher drift (or dash) at about 10:10 a.m. the piece of concrete
had been brought down. He made it clear that the single piece of
concrete (a part of the plug which did not come down in the original
blasting of the plug) was the only part of the face which he deemed
a hazard.
Mr. Kelly Kramp was called as a witness by both the Secretary
and Climax. His assessment of the stability of the piece of concrete
differed markedly from the inspector's. Kramp testified that when
he reached the finger on the morning in question he first checked
for misfires from the previous round. He then barred down until he
was certain any loose material had been removed. Then, he testified,
he proceeded to drill for the second round. Kramp agreed that the
inspectors appeared just after he had completed the drilling. He
denied that he had seen any materials fall while the inspector was
there, but conceded that the "handful" could have fallen and escaped
his notice. He did acknowledge that some dribbling of "fines" or
11
sands" had occurred earlier when he was drilling. This he insisted,
was common when drilling a safety plug after a first round had been
fired.
In this case he suggested it was caused by movement in the
finger attributable to a combination of drill water, drill vibration,
and drill air. He believed that most of it was small bits of muck
loosened by the first blast which had come to rest on a narrow
bench he had created just below the face to facilitate preparation
for the setting of the first charge.
All in all, Kramp was certain that although dribbling of
materials could sometimes presage a major movement in muck or ore
in a finger, what he saw on March 21 was not of that sort. Rather,
it was no more than what was to be anticipated from a stable face
during removal of a safety plug (Tr. 291-292).

1028

Mr. Kramp maintained that his later effort to dislodge the
piece of cement confirmed his view. He testified that it took
five minutes of vigorous barring and prying by his partner and
him to loosen it. They were forced to get in behind it to destabilize it.
Some of the difficulty stemmed from the fact that
the piece of concrete was partly supported by the concrete forming
the walls or ribs of the finger itself.
Mr. Ken Johnston, the Climax safety inspector who accompanied the federal inspectors, testified briefly for the operator.
He agreed with Kramp's assessment. He could see nothing indicating that the piece
concrete was loose or unstable. He also
asserted that the few "pebbles" coming down seemed "inconsequential."
The Secretary presented no evidence tending to show that
Climax failed to bar down at the beginning of the shift. The
inspector did suggest at one point that there had been a failure
to examine and test "frequently thereafter." There is no evidence, however, to support that assertion. Similarly, Inspector
Nichols acknowledged that there was no question of supervisory
dereliction in performing daily visits. Thus, the only relevant
part of the standard is that which declares:
Loose ground shall be taken down
or adequately supported before any
work is done.
The parties' versions of the facts are not greatly divergent.
The question of violation actually turns on the validity of their
witnesses' opinions. Whose judgment, Inspector Nichols's or Mr.
Kramp's, is entitled to acceptance? One claims the cement appeared
loose; the other insisted it was not. That determination is dif
cult because both men are highly experienced hardrock miners, wellqualified to make such judgments.
Having weighed the matter, I conclude that the Secretary has
failed to carry his ultimate burden of proof.
I reach this conclusion for several reasons. Although Inspector Nichols had great
familiarity with work in raises, he had no prior specific experience with the reopening of fingers which had been safety-plugged
for repair. Kramp, by contrast, had 10 years of experience working
in fingers, five of which involved removing safety plugs. Beyond
that, the inspector reached his judgment after seeing the allegedly
loose piece of concrete briefly and from a distance. Kramp not
only looked at i t at close range, but ultimately barred it down.
Finally, the fact that it took two miners, Kramp and Doran, at
least five minutes to bar down the relatively small piece of cement
tends to show that it was stable. None of this would be persuasive,
of course, if the truth of Kramp's testimony were somehow suspect.
In this regard, I note that at the time of the hearing Kramp had not
been employed by Climax for five months.
If he had any reason to

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slant his testimony in favor of the operator, it was not apparent
on the record.
I accept Mr. Kramp's view that the cement was stable.
The citation will be vacated.
WEST 85-100-RM, Citation No. 2356414
This citation concerns the ladder arrangement used by Mr.
Kramp to reach the concrete plug in the finger discussed in the
previous citation.
Inspector Nichols observed that miners had
used two six-foot folding stepladders. These ladders remained
in the closed or folded position. Mr. Kramp had leaned them
against the concrete side of the finger, which rose from the
floor at a 45-degree angle. The feet of the rear legs of the
lower ladder rested on the floor.
The feet of the upper ladder
were spaced 46 inches above the top step of the lower ladder.
They rested on a 4 by 4 inch wooden brace. Neither ladder was
fastened to the finger by any means.
(See sketch, government
exhibit 8.)
Inspector Nichols believed this arrangement violated the
standard published at 30 C.F.R. § 57.11-1. ~ That standard
provides:
Safe means of access shall be
provided and maintained to all
working places.
In his testimony, Nichols expressed a number of concerns about
the safety of the ladders. Chief among these were the following:
that the ladders were designed to be self-standing, not to be
leaned; that unsecured, the ladders were unstable and, under loading,
could slip to one side or the other, causing a climbing miner to fall;
that the top step of the lower ladder was cracked; and that the
46-inch gap between ladders, where no steps were provided, created
a separate and significant hazard.
He also maintained that the necessity for Mr. Kramp to carry
a 125-pound drill up the ladder increased the overall hazards. The
proper practice, the inspector claimed, was to use a single "miner's
ladder" to reach the workplace. He contended that the folded stepladder, resting on its back legs alone, was inherently less stable
than the miner's ladder. This was so, he testified, because the
steps at 12-inch intervals between the heavy side rails of the
single ladder lent those rails more rigidity than the slender back
legs of the stepladder. Only the front legs of the stepladder were
meant to bear the weight of a climber, while the back legs were designed merely to support the ladder itself.

5/

Now re-codified as 30 C.F.R. § 57.11001.

1030

The witnesses for Climax disagreed with nearly all of the
inspector's contentions. Mr. Kramp, who was using the ladders,
believed they were safer than a miner's ladder.
He pointed out
that they were wider at the base than a miner's ladder and should
therefore be steadier. He also testified that the steps on the
ladders used were wider and angled differently from those on miners'
ladders. This, he said, gave the stepladders a superior footing
when the ladder had to be leaned at a 45-degree angle, and allowed
the climber more toe space because of the offset provided by the
rear legs. He further insisted that the top step was sound when
he ascended the ladder; it cracked, he said, when he dropped the
drill leg on it as he started to descend.
The Climax safety manager, Mr. Larkin, testified that he could
see no problem with the ladder arrangement.
Counsel for Climax points out that since the standard prescribes no specific measures to achieve "safe access," safe compliance must be gauged by whether the access used by the company
would inspire corrective action in a " ••• reasonably prudent person
familiar with the factual circumstances surrounding the allegedly
hazardous condition, including any facts peculiar to the mining
industry •••• " Alabama By-Products Corporation, 4 FMSHRC 2128, 2129
(December, 1982).
The test is the correct one.
I must conclude, however, that
a reasonably prudent person confronted with the ladder arrangement used by Climax would judge it unsafe. I do not reach this
conclusion based upon the inspector's concerns about the inherent
design differences between folding stepladders and miners' ladders.
The inspector's testimony in that regard was weakened by his admission that had the safety of the lower ladder been the only issue,
he would have found it satisfactory except for the broken top step.
(Tro 307-308 8 321, 324.)
The hazard revealed by the evidence was the use of the two
ladders with a 46-inch gap between the two. Mr. Kramp maintained
that he could easily and safely climb the lower ladder with a
125-pound jackleg drill over his shoulder, sling the drill off his
shoulder and onto the 4 by 4 brace supporting the second ladder,
and then somehow pull himself up onto the brace where he would
stand to drill. This testimony is simply not credible. One way
or another, he had to climb the last 46 inches of a 45-degree concrete wall without steps and without ladder rails to grasp to
balance himself. The manuever would be hazardous without a heavy
drill being carried. With the drill, i t was even more dangerous.
Because of the gap between the upper and lower ladders, the standard
was clearly violated.

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Further, I conclude that the violation was "significant and
substantial," as alleged. Had a miner, particularly one burdened
with a 125-pound drill, fallen while ascending or descending the
makeshift ladder arrangement, the possibility of a reasonably
serious injury was all too apparent. The reasonable possibility
of such an injury's occurring is likewise manifest.
The parties have stipulated that for those violations which
are found to exist, and which are also found to be "significant
and substantial," the civil penalties proposed by the Secretary are
appropriate and should be imposed. The stipulation appears reasonable. Consequently, a civil penalty of $98.00 will be assessed.
CONCLUSIONS OF LAW

Based upon the entire record herein, and in accordance with
the determinations of fact contained in the narrative portions of
this decision, the following conclusions of law are made:
(1) The Commission has jurisdiction to decide this consolidated matter.
(2) Climax violated the mandatory safety standard published
at 30 C.F.R. § 57.11-12 as alleged in citation number 2358524.
(3) The violation was not "significant and substantial"
within the meaning of the Act.

(4) The reasonable and appropriate penalty for the violation
is $20.00.
(5) Climax violated the mandatory safety standard published
at 30 C.F.R. § 57.11-12 as alleged in citation number 2358525.
(6) The violation was not "significant and substantial"
within the meaning of the Act.
(7) The reasonable and appropriate penalty for the violation
is $20.00.

(8) Climax did not violate the mandatory safety standard
published at 30 C.F.R. § 57.3-22 as alleged in citation number
2356413.
(9)
Climax violated the mandatory safety standard published
at 30 C.F.R. § 57.11-1 as alleged in citation number 2356414.

(10} The violation was "significant and substantial" within
the meaning of the Act.
(11) The reasonable and appropriate penalty for the violation
is $98.00.

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ORDER
Accordingly, citations numbered 2358524 and 2358525 are
ORDERED affirmed as non-significant and substantial; citation
number 2356413 is ORDERED vacated; citation number 2356414 is
ORDERED affirmed as significant and substantial; and Climax is
ORDERED to pay total civil penalties of $138.00 to the Secretary
within 30 days of the date of this decision.

Distribution:
Richard W. Manning, Esq., Climax Molybdenum Company, One Greenwich
Plaza, Greenwich, Connecticut 06836-1700
(Certified Hail)
Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado
80294
(Certified Mail}

/ot

1033
U. S, GOVERNMENT PRINTING OFFICE 1986; 491-223/53104