OCTOBER 1994
COMMISSICN DECISIONS AND ORDERS
10-25-94
10- 27-94
10-28-94
10-31-94
10- 31-94

Manalapan Mining Company
Peabody Coal Company
The Pit
Pyramid Mining I ncorporated
Buffalo Crushed Stone, Inc.

KENT 93-614
WEVA 94-392
WEST 94-516-M
KENT 93-184
YORK 92-117-M

Pg.
Pg .
Pg.
Pg.
Pg.

2027
2030
2033
2037
2043

SE
94-92-M
WEST 94-76-M
KENT 94-347-R
VA
94-53-M
WEST 90 - 383
PENN 94-238-R
WEVA 94 - 155
PENN 94-323-DM

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

2049
2061
2072
2082
2101
2103
2108
2118

WEVA 93-343-D

Pg. 2119

VA

93_-100-D

Pg . 2120

CENT 94-61 -D

Pg. 2121

WEST 94-390-D
WEST 92-371-R
WEST 93-313-M
KENT 94-128
WEST 93-184-M

Pg.
Pg.
Pg.
Pg.
Pg.

2122
2124
2126
2130
2139

KENT 94-1327-D
WEVA 94-176
YORK 94-51-M
SE
94-326-R
LAKE 94-615-R

Pg.
Pg.
Pg.
Pg.
Pg.

2146
2148
2154
2163
2172

WEST 94-711-D
WEVA 94-237
WEVA 94-284-C

Pg. 2178
Pg. 2179
Pg. 2184

PENN 94-281-D

Pg. 2185

CENT 94-239-RM
KENT 94-294
WEVA 94-236
WEVA 93-36-R
WEST 94-623 - M

Pg.
Pg.
Pg.
Pg.
Pg.

ADMINISTRATIVE LAW JUDGE DECISIONS
10-05-94
10-06-94
10-11-94
10-12-94
10-13-94
10 - 14-94
10-14-94
10-17-94
10-17-94
10-17-94
10-17-94
10-17-94
10-17-94
10-17-94
10-18-94
10-19-94
10-20-94
10-20-94
10-24-94
10-25-94
10-26-94
10-27-94
10-27-94
10-31-94
10-31-94

Fluor Daniel Incorporated
Konitz Contracting Inc.
Peabody Coal Company
Riverton Corporation
Mid-Continent Resources, Inc.
Laura D Coal, Inc.
David Reed, John Miller, etc.
Kenneth Vogt, Sr. v. Bradys Bend Corp.
Sec. Labor on behalf of Link Smith, etc.
v. Consolidation Coal Company
Sec. Labor on behalf of Ronald Rose v.
Clinchf ield Coal Company
Kenneth J.Garrett v. Basin
Cooperative Services
Sec. Labor on behalf of William C.
Young v. F & E Erection Co.
Cyprus Plateau Mini ng Corp.
John Heter, George Hal uska, etc.
Southfork Coal Company
John Kemp and Brad Nicolay
Sec. Labor on behalf of Robert Harlow
v. Narrows Branch Coal, Inc.
Consolidation Coal Company
Buffalo Crushed Stone
Jim Walter Resources, Inc.
Old Ben Coal Company
Sec. Labor on behalf of Robbie A.
Smith v. Centralia Mining Co.
Catenary Coal Company
Local 5817, UMWA v. Mutual Mining Inc.
Sec. Labor on behalf of Dale Beers, etc.
v. Keystone Coal Mining Corporation

ADMINISTRAII VE LAW JUDGE ORDERS
10-04-94
10-04-94
10-05-94
10-11-94
10-20-94

Southwestern Portla nd Cement Co.
KYN Coal Company, Inc.
Long Branch Energy
Mingo Logan Coal Company
Eugene Russell, Ervin Nichols, etc.
i

2187
2189
2192
2194
2197

OCTOBER

1994

Review was granted in the following cases during the month of October:

Secretary of Labor, MSHA v. Peabody Coal Company, Docket No. WEVA 94-392.
(Request for Relief from Final Order)
Review was denied in the following case during October;

Secretary of Labor, MSHA v. The Pit, Docket No. WEST 94-516-M.
(Request for Relief from Final Order)

ii

-

COMMISSION DECISIONS AND ORDERS

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

20006

October 25, 1994

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

Docket Nos. KENT 93-614
KENT 93-615
KENT93-646
KENT93-884

v.

MANALAPAN MINING COMPANY,
INC.

ORDER
In this consolidated civil penalty proceeding arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et~. (1988)("Mine Act"), the Secretary of Labor
("Secretary") and Manalapan Mining Company, Inc. ("Manalapan") have filed with the
Commission a joint motion to approve settlement of all matters contained in Docket Nos. KENT
93-614 and 615. Petitioner Manalapan has also filed a motion to voluntarily dismiss its appeal of
these cases.
On September 14, 1994, the Commission granted Manalapan's petition for discretionary
review of the August 8, 1994, decision of Administrative Law Judge Avram Weisberger in
Docket Nos. KENT 93-614 and 615. 1 In their joint motion to approve settlement, the parties
have agreed to civil penalties lower than those assessed by the judge. The parties have further
noted that, in assessing the civil penalties, "the judge did not discuss the six statutory penalty
criteria with respect to each violation." Motion at 3.

1

The Commission granted the Secretary's petition for discretionary review of the judge's
decision in Docket Nos. KENT 93-646 and 884. These cases remain on review with the
Commission.

2027

Docket Nos. KENT 93-614 and 615 are remanded to the judge, who shall rule on the joint
motion to approve settlement. If the joint motion is denied and Manalapan wishes to pursue its
appeal, it shall so advise the Commission within 30 days of the judge's decision.

2028

Distribution

Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Susan C. lawson, Esq.
Buttermore, Turner, Lawson & Boggs
111 South First Street
Harlan, KY 40831
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

2029

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

20006

October 27 , 199 4

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEV A 94-392
A.C. # 46-07908-03547

v.

PEABODY COAL COMPANY

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners-

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U .S.C.
§ 801 et seq. (1988) ("Mine Act" or "Act"). On September 6, 1994, the Commission received
from Peabody Coal Company ("Peabody") a request to reopen an uncontested civil penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, '30 U.S,C. § 815(a). The Secretary of Labor ("Secretary") has not opposed
Peabody' s request.
Section 105(a) of the Mine Act requires the Secretary to notify the operator of "the
civil penalty proposed to be assessed" after issuing a citation or order for an alleged violation.
30 U.S.C. § 815(a). Section 105(a) allows the operator 30 days to contest a proposed penalty
and further provides that, if the operator fails to contest it, the assessment "shall be deemed a
final order of the Commission and not subject to review by any court or agency." Id.
Peabody failed to contest a proposed assessment within 30 days and, accordingly, it has
become a final order of the Commission.
Peabody's counsel states that Peabody failed to file with the Department of Labor's
Mine Safety and Health Administration ("MSHA") a "Green Card" notice of contest

2030

challenging MSHA's proposed civil penalty within the 30-day period set forth in section
105(a), due to confusion among temporary employees in its legal department regarding
procedures for contesting proposed civil penalties. The Commission has held that in
appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b) ("Rule 60(b)"), it possesses
jurisdiction to reopen uncontested assessments that have become final under section 105(a).
Jim Walter Resources. Inc., 15 FMSHRC 782, 786-89 (May 1993); see also, Jim Walter
Resources. Inc., 16 FMSHRC 1209, 1210 (June 1994). Relief from a final order is available
in circumstances such as a party's mistake, inadvertence, or excusable neglect.
On the basis of the present record, we are unable to evaluate the merits of Peabody's
position. In the interest of justice, we reopen the matter and remand it for assignment to a
judge to determine whether Peabody has met the criteria for relief under Rule 60(b). If the
judge determines that relief under Rule 60(b) is appropriate and permits Peabody to file its
notice of contest, this case shall proceed pursuant to the Mine Act and the Commission· s
Procedural Rules, 29 C.F.R. Part 2700.
For the foregoing reasons, Peabody's request is granted in part and this matter is
remanded for assignment.

~tty
cyceA:DO;tie, CommiSSiOilef

2031

Distribution

Caroline A. Henrich, Esq.
Peabody Coal Company
P.O. Box 1233
Charleston, WV 25324
C. Bryan Don, Chief
Civil Penalty Assessment Office
U.S. Department of Labor
4015 Wilson Blvd., 9th Floor
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

2032

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

20006

October 28 , 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
DocketNo. WEST94-516-M
A.C. No. 24-0 1958-05503

V.

THE PIT

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners

ORDER

BY THE COMMISSION:
In this matter arising Wlder the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1988) ("Mine Act"), The Pit ("Pit") filed with the Commission a request
seeking to reopen an uncontested civil penalty assessment that had become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary of
Labor ("Secretary") filed a response opposing the granting of Rule 60(b) relief.
Section 105(a) of the Mine Act requires that, after issuing a citation or withdrawal order
for an alleged violation, the Secretary notify the operator of "the civil penalty proposed to be
assessed." 30 U.S.C. § 815(a). Section 105(a) allows the operator 30 days to contest the
proposed penalty and further provides that, if the operator fails to contest it, the assessment "shall
be deemed a final order of the Commission and not subject to review by any court or agency."
Id.
Pit failed to timely file a "Green Card" notice of contest challenging the proposed civil
penalty assessment by the Department of Labor's Mine Safety and Health Administration
("MSHA"). Pit states that it first became aware ofthis matter when it received a letter dated
March 30, 1994, from MSHA's Office of Assessments requesting payment of the penalty. Pit
asserts that this letter arrived after the time for contesting the proposed civil penalty assessment
had passed, that MSHA had not sent the notice of violation to Pit's current address, that
confusion resulted because of another MSHA proceeding involving Pit, and that Pit's
representative was out of the coWltry during the time for contest. Pit essentially asks the
Commission to reopen this matter pursuant to Fed. R. Civ. P. 60(b) ("Rule 60(b)") so that it may
file its notice of contest. The proposed penalty has not been paid.

2033

The Conunission has held that, in appropriate circumstances and pursuant to Rule 60(b),
it possesses jurisdiction to reopen uncontested assessments that have become final under section
105(a). Jim Walter Resources. Inc., 15 FMSHRC 782, 787-90 (May 1993). Rule 60(b) relief
from a final order is available in circumstances such as a party's mistake, inadvertence, or
excusable neglect. Requests to reopen under Rule 60(b) must be made within a reasonable time
and are conunitted to the sound discretion of the judicial tribunal in which relief is sought. See.
M,., Randall v. Merrill Lynch, 820 F.2d 1317, 1320-21 (D.C. Cir. 1987), cert. denied, 484 U.S.
1027 (1988). The Court stated in Randall: "Rule 60(b) is the mechanism by which courts
temper the finality of judgments with the necessity to distribute justice. It is a tool which ...
courts are to use sparingly .... " 820 F.2d at 1322. See also Tolbert v. Chaney Creek Coal Com.,
12 FMSHRC 615, 619 n.l (April 1990).
Because Pit failed to contest the proposed assessment within 30 days, it became a final
order of the Commission on February 12, 1994. Pit claims that it had no notice of the instant
penalty assessment until it received MSHA's March 30, 1994, letter and complains that the
Secretary served the notice at an incorrect address. Under 30 C.F .R. § 41.12, it is Pit's
responsibility to inform MSHA of its correct address and Pit must bear the consequences of its
failure to do so. The Secretary notes that receipt of the proposed assessment was acknowledged
on January 13, 1994, by an individual who is listed on Pit's Legal Identity Report as Pit's
bookkeeper. Thus, service at the address Pit had registered with MSHA provided Pit with notice
of the proposed penalty assessment on January 13, 1994.
Similarly, we are not persuaded that the absence of Pit's owner from December 20, 1993,
through March 15, 1994, excuses Pit's failure to challenge the Secretary's penalty assessment. Pit
states that, during this period, it requested and received an extension of time to respond to a
proposed penalty assessment in another case. Thus, the owner's absence was no impediment to a
timely response from Pit to the proposed penalty assessment in this case.
We also find Pit's assertion that confusion resulted from the Secretary's proposal of civil
penalties in another case during the same time period to be lacking in merit . Even if confusion
may have existed at the start of these proceedings, Pit explicitly acknowledged, in a letter to
MSHA dated April 5, 1994, the existence of two separate cases. Although MSHA declined, by
letter dated April 25, 1994, to process Pit's untimely penalty contest, Pit failed to request relief
from the Conunission until June '2:7, 1994, more than two months later. Accordingly, we
conclude that Pit's request does not justify relief under Rule 60(b).

2034

For the foregoing reasons, Pit's request is denied.

2035

Distribution

Alfred J. Luciano
The Pit
P.O. Box 1050
Eureka, MT 59917
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Kristi Floyd, Esq.
Office of the Solicitor
U.S. Department of Labor
1999 Broadway, Suite 1600
Denver, CO 80202-5716
C. Bryan Don, Chief
Civil Penalty Compliance Office
U.S. Department of Labor
4015 Wilson Blvd., 9th Floor
Arlington, VA 22203

2036

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

20006

October 31. 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 93-184

V.

PYRAMID MINING INCORPORATED

BEFORE: Jordan, Chairman; Doyle and Holen, Cornmissioners 1

DECISION
BY THE COMMISSION:

This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act"), presents the issue of whether Pyramid
Mining Incorporated ("Pyramid") violated 30 C.F.R. § 77.1505 by failing to block auger
holes. 2 Administrative Law Judge Avram Weisberger determined that Pyramid was not
required to block the holes because they had not been "abandoned" within the meaning of the
standard. 15 FMSHRC 1950 (September 1993) (ALJ). For the reasons that follow, we vacate
the judge's decision and remand.
I.

Factual and Procedural Background
Pyramid owns the Hall No. 2 Mine, a surface coal mine in Ohio County, Kentucky.

1

Commissioner Marks assumed office after this case had been q :msidered at a decisional
meeting and a decision drafted. In light of these circumstances, Commissioner Marks elects
not to participate in this case.
2

30 C.F.R. § 77.1505 provides that, "[a]uger holes shall be blocked with highwall spoil
or other suitable material before they are abandoned."
2037

The mine is "L"-shaped, with sections A and Cat the ends and section B between the two. A
haul road is located around the perimeter of the pit and a ramp in section A is used to
transport coal by truck from the pit to a preparation plant.

In November 1991, Pyramid's contractor began mining the highwall in Section A: A
continuous highwall miner, or auger, approximately 55 feet wide and 28 feet high, extracted
coal by drilling holes into the highwall, approximately 4 feet high, 10 to 11 feet wide, and up
to 420 feet long. Although Pyramid had instructed its contractor to fully penetrate the auger
holes, maximum penetration was not reached if adverse geological conditions were
encountered or mechanical problems developed. 15 FMSHRC at 1952; Tr. 48-49.
On March 20, 1992, when Darold Gamblin, an inspector from the Department of
Labor's Mine Safety and Health Administration ("MSHA"), inspected the mine, the auger
was mining section C and moving along the highwall toward section B. Inspector Gamblin
observed 35 to 40 unsealed auger holes in section A and concluded that they had been
abandoned because section A was no longer being mined. 15 FMSHRC at 1951; Tr. 30-31.
He believed that the auger holes presented hazards associated with high methane and low
oxygen levels and with unsupported roof and that such hazards could be fatal to anyone
entering the holes. Id. Inspector Gamblin also believed that, because the pit was unguarded
and there were no barriers or warnings around the holes , a possibility existed that someone
could enter the pit and the auger holes. Tr. 20, 30. He had seen children playing in a
residential area approximately one-quarter mile from the mine. Tr. 30. Accordingly, he
issued a citation pursuant to section 104(a) of the Act, 30 U.S.C. § 814(a), alleging a
significant and substantial (" S&S ") violation of section 77 .1505.
A few days later, Pyramid's safety and reclamation supervisor, James Michael Hollis,
informed MSHA that Pyramid did not consider the cited auger holes to be abandoned and that
it intended to redrill them to "full penetration." Tr. 75-76. Nonetheless, in order to abate the
citation, Pyramid filled the mouths of the holes with spoil. Pyramid contested the citation and
the matter was heard by Judge Weisberger.
The judge concluded that Pyramid had not violated section 77 .1505 by failing to block
the auger holes because the holes had not been "abandoned" within the meaning of the
standard. The judge relied on the dictionary definition of "abandoned," i.e. , "to cease to
assert or exercise an interest, right or title to esp[ecially] with intent of never again resuming
or [re]asserting it. " 15 FMSHRC at 1952 (citations omitted). He reasoned that the record did
not establish when Pyramid had ceased working on the cited holes and credited the testimony
of Pyramid witnesses that Pyramid intended to resume drilling them. Id. Accordingly, the
judge concluded that the Secretary had not established a violation and vacated the citation. Id.
at 1953.
The Secretary filed a petition for discretionary review challenging the judge's decision,
which the Commission granted.

2038

IL
Disposition
The Secretary argues that auger holes are "abandoned" within the meaning of section
77 .1505 when "the evidence shows that the operator is no longer present at the site, and does
not show that the operator intends to return to the site in the near future." S. Br. at 5. He
contends that Pyramid was required to block the holes because they had been left unmined for
three to five months, there was no operator activity in section A, that section was not visible
from the nearest mining activity, there were no warning signs placed around the holes, and
Pyramid had no identifiable intent to return to section A in the near future. S. Br. at 8. The
Secretary asserts that his interpretation of the standard is entitled to deference and that the
judge's interpretation renders the safety purpose of the standard meaningless.
Pyramid responds that the judge correctly considered the plain meaning of section
77.1505 and that an operator's intent is the governing factor in determining abandonment.
Pyramid contends that it had not intended to abandon the holes but, rather, intended to redrill
them to obtain full penetration.
The term "abandoned" is not defined in Part 77, nor does the regillatory history of the
standard elucidate its intended meaning. See. e.g., 36 Fed. Reg . 9364 (May 22, 1971). It is
recognized that, in the absence of express definitions, terms in regulations should be defined
according to their "commonly understood definitions." See. e.g., Tenneco Oil Co. v. Federal
Energy Admin., 613 F.2d 298, 302 (Temp. Erner. Ct. App. 1979); Colorado Dep't of Labor
& Emp. v. U .S. Dep't of Labor, 875 F.2d 791, 797 (10th Cir. 1989). In interpreting such
terms, however, reviewing bodies "cannot concentrate on individual terms and ignore a
consideration of the context in which the term appears." Colorado Dep 't of Labor & Emp.,
875 F.2d at 797 (citations omitted). A safety standard must be interpreted to effectuate its
purpose and to further the objectives of the statute it implements. See Dolese Bros. Co., 16
FMSHRC 689, 693 (April 1994), quoting Emery Mining Co. v. Secretary of Labor, 744 F.2d
1411, 1414 (10th Cir. 1984); Arch of Kentucky. Inc., 13 FMSHRC 753, 756 (May 1991).
The legislative histories of the Mine Act and the Federal Coal Mine Health and Safety
Act of 1969 recognize the hazards presented by abandoned mining ar~as and address the health
and safety of non-miners as well as miners. See 123 Cong. Rec. 19,960 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal ¥ine Safety and Health Act of 1977, at 997 (1978); S. Rep.
No. 411, 91st Cong., 1st Sess. 85 (1969), reprinted in Senate Subcommittee on Labor,
Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History of
the Federal Coal Mine Health and Safety Act of 1969, at 211 (1975). The conditions giving
rise to the subject citation, unblocked holes, could have posed a significant hazard to anyone
entering them.

2039

The judge, relying on a dictionary definition, determined that the holes had not been
"abandoned" because Pyramid asserted an intent to resume drilling them. We agree with the
Secretary that the judge's reliance on a narrow meaning of "abandoned·~ thwarts the standard's
protective purpose and does not serve the safety objectives recognized in the legislatiVe
history. U Consolidation Coal Co., 15 FMSHRC 1555, 1557 (August 1993). Under the
judge's interpretation, auger holes may remain unblocked based entirely on an operator's
asserted intent to resume mining them at an unspecified future time . Holes could remain
unsealed indefinitely if an operator expressed an intent to attempt extraction of the additional
coal an auger were capable of extracting.3
Moreover, the judge failed to give adequate consideration to the context in which the
term "abandoned" appears. Section 77.1505 expressly requires that auger holes shall be
blocked before, rather than after, they are abandoned. Accordingly, we conclude that the
judge misconstrued section 77. 1505.
The standard suggests that auger holes be blocked at the earliest reasonable time, taking
into account the hazards associated with open holes as well as an operator's mining intentions.
A determination of whether an operator has violated section 77 .1505 requires consideration of
the following factors, in addition to the operator's statement of intent: the existence of any
active mining in the area in question, the period of time that had passed ·since holes were
created in the initial coal extraction, whether the operator has taken action to resume drilling,
and the hazards presented by the holes.

3

Although Pyramid initially planned to mine lengths of 420 feet, it had begun considering
the possibility of mining up to 1,000 feet. Tr. 70.

2040

m.
Conclusion
For the reasons set forth, we vacate the judge's determination that Pyramid did not
violate section 77 .1505 and remand for reconsideration consistent with this decision. On
remand, the judge should consider whether Pyramid violated the standard by failing to block
the cited holes at the earliest reasonable ti.me, taking into consideration the factors set forth
above. He may take such additional evidence as he deems necessary. If the judge determines
that Pyramid violated the standard, he should also consider whether the violation was
significant and substantial and assess an appropriate civil penalty.

Arlene Holen, Commissioner

2041

Distribution

Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Carl B.Boyd, Jr., Esq.
Meyer, Hutchinson, Haynes & Boyd
120 North Ingram Street
Henderson, KY 42420
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite I 000
Falls Church, VA 22041

2042

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

20006

October 31, 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. YORK 92-117-M
YORK 92-128-M

v.

BUFFALO CRUSHED STONE, INC.

BEFORE: Jordan, Chairman; Doyle and Holen, Commissioners 1
DECISION
BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"), presents the issue of whether five
similar violations of 30 C.F.R. § 56.9301 by Buffalo Crushed Stone, Inc. ("Buffalo") were
significant and substantial ("S&S").2 Administrative Law Judge Avram Weisberger determined
that the violations were not S&S. 15 FMSHRC 1641 (August 1993)(ALJ). For the reasons that
follow, we reverse and remand.

I.
Factual and Procedural Background
Buffalo operates the Wehrle Quarry, an open pit limestone quarry in New York State. On
May 5, 1992, Joseph Denk, an inspector fn;>m the Department of Labor's Mine Safety and Health

1

Commissioner Marks assumed office after this case had been considered at a decisional
meeting and a decision drafted. In light of these circumstances, Commissioner Marks elects
not to participate in this case.
2

30 C.F.R. § 56.9301, entitled "Dump site restraints," provides:
Berms, bumper blocks, safety hooks, or similar impeding
devices shall be provided at dumping locations where there is a
hazard of overtravel or overturning.
2043

Administration ("MSHA"), along with his supervisor, Richard Duncan, inspected five stockpiles
of finished stone in the quarry. The stockpiles, which abutted a highwall, were approximately 25
feet high and 60 feet in diameter and were flattened to accommodate travel. Stone from the
stockpiles was placed around the top perimeters of the stockpiles to create berms.
Inspector Denk observed that the berms were approximately one foot high and did not
reach the three-foot, mid-axle height of the WA-500 front-end loader, the largest piece of
equipment operated on the stockpiles, as required by 30 C.F.R. § 56.9300(b).3 Tr. 59, 68. The
inspector also observed a Mack M-30 haul truck dumping stone over a stockpile's edge and
concluded that overtravel could occur because of the low berm. Tr. 65-68. Accordingly, the
inspector issued citations, pursuant to section 104(a) of the Act, 30 U.S.C. § 814(a), alleging
S&S violations of section 56.9301 for each of the five stockpiles. Buffalo contested the
citations.
Following an evidentiary hearing, Judge Weisberger concluded that Buffalo had violated
section 56.9301 in all five instances, but that the violations were not S&S. 15 FMSHRC at 164546. The judge based his liability determination on his findings that a hazard of overtravel
existed, that a vehicle had been observed dumping at the edge of a stockpile, and that the berms
did not reach the height required by section 56.9300(b). Id. With respect to the S&S issues, the
judge found that, although "an injury-producing event ... could have occurred" because of the
height of the stockpiles and the low berms, the Secretary had not established a reasonable
likelihood that such an event would occur. Id. at 1646 (emphasis in original). The judge
assessed a civil penalty of $50 for each violation. Id..
The Commission granted the Secretary's petition for discretionary review, which
challenged the judge's determination that the violations were not S&S.4

II.
Disposition
The Secretary argues that substantial evidence does not support the judge's finding that
Buffalo's violations of section 56.9301 were not S&S. He asserts that the judge erred when he

3

30 C.F.R . § 56.9300, entitled "Berms or guardrails," provides in part:
(b) B.e nns or guardrails shall be at least mid-axle height of the

largest self-propelled mobile equipment which usually travels
the roadway.
4

The Secretary designated his petition for discretionary review as his brief; Buffalo did
not file a response brief.

2044

determined that the reasonable likelihood of an injury had not been established because there was
no direct testimony based on personal knowledge as to how close trucks were driven to the cited
berms. According to the Secretary, the judge failed to consider evidence that Buffalo's trucks
routinely backed up to the edges of the berms, a practice that has caused accidents at other mines.
The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),
and refers to a more serious type of violation. A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. Cement Div.. Nat'l Gypsum Co.,
3 FMSHRC 822, 825-26 (April 1981). In Mathies Coal Co., 6 FMSHRC 1(January1984), the
Commission further 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: (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.
Id. at 3-4. See also Austin Power. Inc. v. Secretazy of Labor, 861F.2d99, 103-04 (5th Cir.
1988), affg 9 FMSHRC 2015, 2021(December1987)(approving Mathies criteria).
The first and second Mathies elements have been established. The issue on review is
whether the judge erred in finding that there was not a reasonable likelihood that the hazard of
overtravel contributed to by the low berms would result in an injury.
The Commission is bound by the terms of the Mine Act to apply the substantial evidence
test when reviewing an administrative law judge's factual determinations. 30 U.S.C.
§ 823(d)(2)(ii)(I). The term "substantial evidence" means "such relevant evidence as a
reasonable mind might accept as adequate to support (the judge's] conclusion." Rochester &
Pittsburgh Coal Co., 11FMSHRC2159, 2163 (November 1989), quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938). While we do not lightly overturn a judge's factual
findings and resolutions, neither are we bound to affirm such determinations if only slight or
dubious evidence is present to support them. See. e.g., KriSl?Y Kreme Doughnut Cor_p. v. NLRB,
732 F.2d 1288, 1293 (6th Cir. 1984); Midwest Stock Exchange. Inc. v. NLRB, 635 F.2d 1255,
1263 (7th Cir. 1980). We are guided by the settled principle that, in reviewing the whole record,
an appellate tribunal must also consider anything in the record that "fairly detracts" from the
weight of the evidence that supports a challenged finding. Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951). We conclude that substantial evidence does not support the judge's
determination.

2045

In determining that the Secretary failed to establish the third Mathies element, the judge
reasoned that the stockpiles were flat, there was no evidence of overtravel, the stockpile vehicles
had no braking or steering problems and there was "no direct testimony in the record, from
anyone having personal knowledge based on observation, as to how close the various vehicles in
use actually, in the normal course of operation, travel to the edge of the berms." 15 FMSHRC at
1646 (emphasis in original).
The overwhelming weight of the evidence detracts from the judge's finding. Inspector
Denk testified that a truck backing up or driving near the edge of a stockpile could travel through
the berm, falling 25 feet. Tr. 65. Duncan testified that the low berms created a "significant
hazard" because they were not high enough to prevent overtravel, which could result in serious
accidents. Tr. 135-37. He testified that the drivers were "backing these trucks up using mirrors,
and [were] not ... people [who] do this on a daily basis." Tr. 136. He further testified that "[i]t's
very easy to misjudge in a rear view mirror backing [sic]." Id. Duncan also explained that, as a
truck dwnps its load, a "tremendous" amount of weight is shifted toward the rear of the truck and
the outside edge of a stockpile. Id. In one fatal accident that Duncan investigated, a truck was
backing up to a stockpile similar to those cited when a wheel of the truck "went in at an angle"
and "caught the edge." Tr. 137. As the truck dwnped its load, its weight shifted, a wheel
dropped, and the truck flipped over, crushing the cab. Id. Duncan stated that, on account of their
inadequate height, the berms would not restrain overtravel but would function only as "speed
bwnp[s]." Tr. 135.
Contrary to the judge's finding, there is evidence in the record as to how close vehicles
travelled to the berms' edges during normal operations. Inspector Denk testified that, when he
observed a Mack M-30 haul truck back up to the berm and dump a load of material, the truck's
"wheels were actually touching the berm." Tr. 67. He also testified that he observed tire tracks
on the stockpiles that were "[a]lmost actually on the berm." Tr. 66. Inspector Denk's testimony
was based on his personal observations at the mine. Denk was not required to observe the mine's
operations for an extended period oftime for his observations to have probative value.
Moreover, there is no requirement that the Secretary's case be based exclusively on testimony
founded on personal knowledge. In making factual determinations, a judge may consider all
"[r]elevant evidence, including hearsay evidence." 29 C.F.R. § 2700.63(a) (1993). See MidContinent Resources. Inc., 6 FMSHRC 1132, 1135-37 (May 1984).
Furthermore, the judge focused on factors that, in this case, the Secretary need not prove
to establish the third Mathies element. Under the circwnstances, the fact that the stockpiles were
flat and that there were no equipment problems at the time does not establish that an accident
was not reasonably likely to occur. The hazard of overtravel presented here did not arise from
the contour of the top of the stockpiles or the condition of the vehicles, but from the fact that
trucks backing up to the edge experienced great shifts in weight as they dumped their loads.
Likewise, the absence of previous instances of overtravel does not establish that an accident
would not be reasonably likely to occur, given the nature of the hazards presented. As noted,
serious accidents resulting from overtravel had occurred at stockpiles similar to those cited. Tr.

2046

136-37. Accordingly, we reverse the judge's determination that the Secretary failed to establish
the reasonable likelihood of an injury-producing event.
Although the judge did not expressly consider the fourth Mathies factor, he recognized in
determining liability that "[b]oth Duncan and Denk testified regarding the hazards of a vehicle
going over the edge of a stockpile and causing serious injuries to the driver of the vehicle." 15
FMSHRC at 1645; Tr. 65-66, 135-37. Given this uncontroverted evidence, the fourth Mathies
element was established.

III.
Conclusion
For the reasons set forth above, we conclude that the judge's determination that the
violations of section 56.9301 were not S&S is not supported by substantial evidence and we
reverse the judge's conclusion. We remand for reassessment of civil penalties in light of our
determination. See. e.g., Gatliff Coal Co .. Inc., 14 FMSHRC 1982, 1989 (December 1992).

Arlene Holen, Commissioner

2047

Distribution

Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Mr. Salvatore Castro

Safety Director
Buffalo Crushed Stone
2544 Clinton St.
P.O. Box 710
Buffalo, NY 14224
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

2048

ADMINISTRATIVE LAW JUDGE DECISIONS

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

OCT 5

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

199{

:

CIVIL PENALTY PROCEEDING
Docket No. SE 94-92-M
A.C. No. 38-00626-05502 S4 5

. Ridgeway Mine

FLUOR DANIEL INCORPORATED,
Respondent

DECISION

Appearances:

Leslie John Rodriguez, Esq., Office of the
Solicitor, U.S. Department of Labor, Atlanta,
Georgia, for the Petitioner;
Carl B. Carruth, Esq., McNair & Sanford, P.A.,
Columbia, South Carolina, for the Respondent.

Before :

Judge Feldman

This matter i s before me as a result of a petition for civil
p enal t y filed by the Secretary of Labor pursuant to section
1 05(d ) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. S 801 et seq., (the Act). This proceeding concerns
three citations issued to the respondent, Fluor Daniel
I ncorporated (Fluor Daniel) , as an independent contractor
performing services at the Ridgeway Mine. The Secretary has
proposed a total civil penalty of $15,000.00 in this matter.
Fluor Daniel has stipulated that it is subject to the
j urisdiction of the Mine Act in that it is a "mine operator" as
contemplated by section 3(d) of the Act, 30 u.s.c. S 802(d).
The hearing in this case was conducted on June 2, 1994, in
Charlotte, North Carolina. Mine Safety and Health Administration
(MSHA) Inspector Ronald Lee Lilly and Robert M. Friend,
Supervisory Mine Inspector of MSHA's North Carolina Field Office,
testified on behalf of the Secretary. The respondent called
former employees Steven Crapps, William A. Reynolds and Roland c.
Caldwell. The respondent also called Bruce E. Sellars, its
regional safety manager for the southeast region, as well as
George M. Canady III, its site superintendent at the Ridgeway
Mine.
(Tr. 24). The parties' posthearing briefs are of record.

2 049

Preliminary Pin4inqa o~ Pact

This case involves an April 21, 1993, fata-1 forklift
accident that occurred at the Ridgeway Mine, an open pit gold
mine located near the town of Ridgeway in· Fairfield County,
South Carolina. The Ridgeway Mine is operated by the Kennecott
Ridgeway Mining company (Kennecott}. Fluor Daniel is a publicly
held corporation based in Irvine, California. (Tr. 25-26}. At
the time of the accident, Fluor Daniel was an independent
contractor of Kennecott engaged in the performance of surface
construction work at the Ridgeway mine site. (Tr. 68-69).
The cause of the accident was brake failure on a Komatsu
Model No. FD135-5 forklift truck owned by Kennecott and operated
on April 21, 1993, by Fluor Daniel. The forklift was routinely
used by Kennecott and all of Kennecott's on site contractors,
including Fluor Daniel. (Tr. 191). Kennecott contracted with
the Edwards Warren Company to perform on site forklift
maintenance and repair. Work that could not be performed by
Edwards Warren was performed by a local Komatsu dealer. (Tr.
174}. Fluor Daniel had authority to "tag out" (remove from
service) the forklift if it failed to operate properly. The
accident occurred when the brakes failed immediately after the
engine on the Komatsu forklift had been turned off.
The basic facts surrounding the accident are not in dispute
and can be briefly stated. on April 21, 1993, William Reynolds,
an employee of the respondent, operated the subject forklift
intermittently during the period from 9:00 a.m. until
approximately 2:00 p.m. Reynolds testified that, prior to
operating the forklift that morning, he tested the service and
p arking brake systems with the engine running a.n d found them to
be working properly . (Tr . 75-81} . Reynolds testified that the
respondent had a policy of pre-operation inspections of the
forklift by each oper~tor although the policy was not always
enforced. (Tr . 86-87 ) . The respondent's site superintendent
George Canady also testified about the company's pre-operation
i nspection policy . (Tr. 291 , 293} . Bruce Sellars, the
respondent's reg i onal safety director testified about the
company's safety program. (Tr. 285-288).
Reynolds turned the forklift over to respondent employee
Steven Crapps at approximately 2:00 p.m. (Tr. 81, 92}. Crapps
testified the forklift was on "a very little" incline when he
took it from Reynolds. (Tr. 49). Crapps could not remember the
degree of incline and did not recall thinking the size of the
incline was pertinent to the accident investigation. (Tr. 50).
Crapps stated he conducted a walk-around inspection but did not
perform any specific test on the brakes. Crapps intended to use
the forklift to install 500 feet of electrical cable, which was
coiled around a reel or spool, from the top of the south pit to
the bottom. The spool of cable was to be loaded onto a pickup

20 50

truck in the laydown yard with the forklift. After the
electrical cable was transported to the top of the pit by the
pickup, the cable was to be unloaded with the forklift. Crapps
drove the forklift to the laydown yard where he loaded the
pickup. He then followed the pickup with the forklift to the top
of the pit where he unloaded the cable. The total trip was
approximately one mile or more. Crapps testified that he did not
notice any problem with the brakes. (Tr. 62-63).
Upon arriving at the top of the highwall at approximately
2:30 p.m., Crapps unloaded the cable from the back of the pickup
truck and positioned it near the edge of the pit. Crew member
Johnny Ray was positioned in front of the forklift between the
forks attempting to guide the cable to the edge of the berm.
(Tr. 38-39). As Crapps positioned the cable, he put the forklift
in neutral and set the parking brake. He then shut off the
engine and the forklift started to roll forward. Crapps applied
the brakes and put the forklift in gear to try to stop it, but to
no avail.
(Tr. 39-40). The forklift traveled approximately
15 feet down a 5 to 6 per cent grade pushing Ray over the berm to
the second bench about 86 feet below. The forklift was prevented
from going over the highwall by the berm. Ray was evacuated by
helicopter to a local hospital but he did not sur~ive. (Ex.
P-6).
An accident investigation was initiated by MSHA beginning on
the morning of April 22, 199~. During the period April 22
through April 23, 1993, three citations were issued to Fluor
Daniel. Combined Citation/Imminent Danger Order No. 4094231 was
i ssued for an alleged defect of the forklift service brakes;
Citation No . 4094232 cited an alleged failure of the forklift's
parking brake system; and Citation No. 4094234 specified an
a lleged failure to inspect mobile equipment prior to placing such
equipment in service .
The forklift was removed from mine property by MSHA on
April 24 , 1993 . The forklift ' s brake system was thoroughly
i nspected on May 26 , 1993 , at Industrial Truck Company,
I ncorporated, in Greensboro, North Carolina. Generally speaking,
when the engine of a Komatsu forklift truck is running, the
service brake system relies on a brake pump to maintain the
requisite hydraulic pressure. An examination of the service
brake system with the subject forklift's engine operating
revealed the warning alarm was functioning properly, there was an
adequate supply of brake fluid, and there was hydraulic pressure
of 1500 p.s.i., which was within the manufacturer's
specifications.
When the engine on a Komatsu forklift is turned off the
brake pump no longer operates. The accumulator serves as an
alternative brake system when the engine is not running. An
accumulator is a container that holds approximately 300 cubic

2051

centimeters of brake fluid. When the brake is depressed when the
forklift engine is off, a valve opens forcing brake fluid into
the brake system . (Tr. 98) . The accumulator permits the brakes
to be depressed approximately 5 to 10 times with the engine off .
(Tr . 129) .
During the course of the May 26, 1993, tests, a pressure
qauge was connected to the accumulator on the subject forklift.
When the brake pedal was depressed with the engine off the gauge
indicated zero pressure. The brakes failed to perform as
designed with the engine off due to a malfunction of the
accumulator .
The May 26 inspection of the forklift's parking brake
revealed it was ineffective due to a combination of three
factors. There was no adjustment left at the top of the park
brake lever. In addition, an oil seal between the park brake
assembly and the differential was leaking, which allowed oil to
enter the drum, saturating the shoes . Finally , the thickness of
the shoe pad ranged from 0.150 inch to only 0.125 inch. The
manufacturer's recommended replacement specification was
0.130 inch.
At the hearing, the parties entered into the following
fundamental stipulations of material issues of fact:
1. The service brakes functioned adequately with the
engine running on the forklift but did not function
adequately with the engine off. (Tr. 357) .
2o
Although the respondent is not responsible for
ma i ntenance of the equipment [owned by Kennecott ], it
was authorized to tag out equipment if it was not
functioning properly . (Tr. 198, 358) .
3 o Failure to have operational emergency [parking]
brakes or operational service brakes when the vehicle
i s not running are conditions involving violations that
are properly characterized as significant and
substantial in nature. (Tr. 223 , 358).

fµrtber Pindings and conclusions
citation/Order No. 4094231
Combined 104(a) Citation and 107(a) Imminent Danger Order
No. 4094231 was issued to the respondent by MSHA Inspector Ronald
Lilly on April 22, 1993, for a cited violation of the mandatory
safety standard in section 56.14101(a)(l), 30 C.F.R.
S 56.1410l(a)(l). In considering whether the facts support a
section 56.14101(a) (1) violation it is helpful to examine the

2052

provisions of sections 56.1410l(a) and 56.1410l(b).
sections provide:

These

s 56.14101
(a) Kini.mum requir. .enta. (1) Self-propelled mobile
equipment shall be equipped with a service brake system
capable of stopping and holding the equipment with its
typical load on the maximum grade it travels. This
standard does not apply to equipment which is not
originally equipped with brakes unless the manner in
which the equipment is being operated requires the use
of brakes for safe operation. This standard does not
apply to rail equipment.
(2) If equipped on self-propelled mobile equipment,
parking brakes shall be capable of holding the
equipment with its typical load on the maximum grade it
travels.
(3) All braking systems installed on the equipment
shall be maintained in functional condition.
(b) Testing. (1) Service brake tests shall be
conducted when an MSHA inspector has reasonable cause
to believe that the service brake system does not
function as .required, unless the mine operator removes
the equipment from service for the appropriate repair;
(2) The performance of the service brakes shall be
evaluated according to Table M-1 .
. <tr

(5) Where there is not an appropriate test site at the
mine or the equipment is not capable [of] traveling at
l east 10 miles per hour , service brake tests will not
be conducted. In such cases, the inspector will rely
upon other available evidence to determine whether the
service brake system meets the performance requirement
of this standard.
Table M-1 sets forth the maximum allowable stopping distances for
vehicles of different gross weights traveling at speeds varying
from 10 to 20 miles per hour.
The term "service brake system" in section 56.1410l(a) (1)
must be read in the context of the service brake test provisions
of section 56.1410l(b). In so doing, it is evident that the
requisite condition of service brakes contemplated by section
56.1410l(a) (1) relates to the service brakes' effectiveness in
stopping moving (in service) vehicles in that tests to support

2053

violations of this mandatory standard are conducted on moving
vehicles in accordance with the standards contained in Table M-1 .
In fact, section 56.1410l(b)(5) provides that where equipment is
not capable of traveling at least 10 miles per hour, service
brake tests will not be conducted.
In this case , combined Citation/Order No . 4094231 was issued
by Inspector Lilly on April 22, 1993, following his on-site
inspection . Lilly testified that his April 22, 1993 , testing of
the subject forklift revealed that the service brake pedal was
low and that the service brake would not stop the machine with
the engine running . (Tr. 138-139, 144-145) . However, Lilly ' s
preliminary conclusion with respect to the service brakes was not
supported by the subsequent May 26, 1993, tests performed under
MSHA's direction. In this regard, MSHA supervisory Inspector
Friend testified the service brakes could pass the Table M-1 test
with the engine running and that there was no evidence of any
significant hazard posed by the condition of the service brakes.
(Tr. 251-254 }. Moreover, the Secretary's stipulation that the
service brakes functioned adequately with the engine running is
dispositive of this issue . (Tr. 357).
Under these circumstances, section 56.1410l{a) (3) , which
refers to brake systems in general, is the applicable mandatory
safety standard for the accumulator malfunction . While I am
mindful that Inspector Lilly's April 22, 1993, inspection
revealed the brake system was defective with the engine off (Tr.
147), Lilly did not cite the respondent for a violation of
section 56 . 14101(a) (3). Moreover, at trial, the Secretary
expressly withdrew any allegations of a section 56.14101(a)(3 )
v i o l at i on . (Tr . 17-21 ) . Accordingly , the Secretary has f a iled
t o establish that there was a violation of the cited mandatory
safety standard i n section 56.14101(a ) {l} as the service brakes
performed with the engine running. Consequently, Citation
No . 4094231 must be vacated .
With respect t o the remaining 107(a) imminent danger
order , imminent danger orders permit an inspector to remove
mi ners immediately from a dangerous situation.

See 30 u.s.c.

817(a). Here, the gravity of the hazard posed by the
inoperable accumulator and defective parking brake is
i ndisputable. Therefore , the forklift clearly constituted an
imminent danger . An imminent danger order requiring the
immediate removal of hazardous equipment is appropriate even if
the withdrawal order is not caused by a violation of the Act or
of the Secretary ' s mandatory safety standards. Utah Power and
Light Company, 13 FMSHRC 1617, 1622 {October 1991). Thus,
severing and vacating the 104(a) citation from combined 104(a)
Citation/107(a) Order No. 4094231 where the cited section
56.14101(a){l) violation has been vacated does not, alone,
invalidate the 107(a) imminent danger order.
§

2054

The final issue for resolution is whether the imminent danger
order was properly issued to the respondent, the operator of the
defective forklift, rather than to the forklift's owner Kennecott
Ridgeway Mining Company. The testimony reflects that the
respondent had exclusive control of the forklift from 9:00 a.m.
on April 21, 1993, until approximately 2:30 p.m. when the fatal
accident occurred. It is conceivable that employees of the
respondent could have continued to be exposed to the risk caused
by this defective equipment. Therefore, Lilly's issuance of
107(a) Order No. 4094231 was appropriate and shall be affirmed.
Citation No. 4094232

Inspector Lill y issued 104(a) Citation No. 4094232 on
April 22, 1993, for a violation of section 56.1410l(a) (2) after
he determined that the parking brake was incapable of holding the
forklift on grades it was called upon to travel. At the time of
the accident, Crapps testified that he engaged the parking brake
but it failed to prevent the forklift from rolling down the six
per cent grade. (Tr. 139). Lilly and Friend's on-site tests on
April 22, 1993, confirmed that the parking brake had no
resistance and was ineffective. (Tr. 138, 182, 219, 237,
Ex. p-2). Repeat tests by Kennecott Ridgeway Mining Company on
April 23, 1993, also revealed the parking brake could not hold
the forklift.
(Tr. 148-149, 344-348, Ex. P-10). Finally, the
MSHA supervised May 26, 1993, extensive inspection and testing
demonstrated that the parking brake was defective.
(Tr. 171-172,
200, 202, 204, 210, 219, Ex P-6).
In the face of this record evidence, the respondent "· • •
does not dispute that at the time of the accident the parking
lbrake was not capable of holding the forklift as required."
(Resp. posthearing brief at p.26). Rather, the respondent argues
that immediately "· •• prior to the accident the parking brake
worked fine and the sudden and unexpected failure of the parking
brake could not have been anticipated or prevented by the
Respondent .ee ~
The respondent ' s assertion of a sudden brake failure without
any opportunity for prior warning is unconvincing and unsupported
by the record . As a threshold matter, Reynolds' testimony
regarding the nature and extent of his pre-operation inspection
of the forklift and Canady's testimony concerning the
respondent's rigid enforcement of its . pre-operation inspection
program are exculpatory statements that are afforded little
evidentiary value. Moreover, Crapps testified that although he
noted the brakes to be "o.k." on the company walk-around
inspection checklist, he performed no specific tests on the
brakes because he assumed they were working as the forklift had
been previously driven. (Tr. 53-54). crapps' testimony that the
parking brake apparently held on a "very little" dip in the road
does not evidence that it was functioning properly shortly before

2055

the accident. (Tr. 49). Significantly, while Crapps testified
that it was the respondent's policy to require completion of a
pre-operation walk-around inspection sheet, he also testified,
"[i]t was never really enforced, though." (Tr. 58).
Although
Reynolds testified that the respondent's walk-around inspection
policy "was supposed to be" enforced, he stated "[he] couldn't
say it was enforced" rigorously. (Tr. 86-87).
Thus, the evidence reflects that the purported pre-operation
inspections were, at best, perfunctory in nature. Therefore
these inspections provide little support for the respondent's
contention that the parking bra.k e was determined to be functional
shortly before the accident.
Finally, the respondent's assertion of a sudden parking
brake malfunction is belied by the May 26, 1993, inspection of
the forklift. The inspection findings included leaking oil seals
saturating the brake shoe and drum as well as worn parking brake
linings. These conditions are not indicative of an acute
mechanical failure.
In view of the above, it is apparent that the Secretary has
established the fact of occurrence of the cited violation of
section 56.1410l(a) (2}. The respondent has stipulated to the
significant and substantial nature of this violation. (Tr. 223,
358}. With respect to the appropriate civil penalty to be
imposed, the respondent's attempted mitigation, i.e., sudden
unanticipated brake failure, is unsupportable. In applying the
penalty criteria in section llO(i) of the Act, 30 u.s.c.
§ 820(i) , I note ·the degree of negligence manifested by the
r espondent in this matter is high given the fact that the preoperation inspection procedure was ineffective in view of the
l ongstanding nature of the parking brake defects. In addition, I
credit the testimony of Crapps that the respondent's pre-shift
inspection policy was not enforced. Considering the gravity of
the violation and its contribution to a fatality, and, the fact
the respondent i s a large publicly held corporation , I am
assessing a civil penalty of $7,500 for citation No. 4094232 .
Citation No. 4094234
104(a} Citation No . 4094234 was issued by Inspector Lilly on
April 23, 1993, for an alleged violation of section 56.14100(a).
This mandatory safety standard provides: "Self-propelled mobile
equipment to be used during a shift shall be inspected by the
equipment operator before being placed in operation on that
shift."
As noted above, the evidence manifested by the testimony of
Reynolds and Crapps reflects that the respondent's pre-operation
inspection program was perfunctory and deficient. As this
mandatory standard only requires one inspection per shift, the

2056

failure of Reynolds, who took control of the forklift at
9:00 a.m., to detect any parking brake or accumulator
malfunctions at the beginning of the April 21, 1993, morning
shift constitutes a violation without regard to the adequacy of
Crapps' pre-operation walk-around inspection. My conclusion, as
noted above, is based on the longstanding nature of the defective
parking brake and accumulator which should have been discovered
if an adequate pre-shift inspection had been performed.
Although the inadequacy of the preshift inspection provides
a sufficient basis for establishing the violation, there is an
independent justification for finding that section 56.14100(a)
has been violated. A primary cause of this fatal accident was
the defective and inoperable accumulator. The function of an
accumulator which permits a multi-ton construction vehicle to be
stopped or to be prevented from rolling when the engine is turned
off is not an obscure mechanical concept. Inspectors Lilly and
Friend testified that it is "standard procedure" to test
accumulators and that all equipment manufactured in the last
several years have functional brake systems when the engine is
off. (Tr . 95-99, 162, 182, 236). Such a malfunction could
easily result in a runaway construction vehicle in the event of
an engine stall.
Industry recognition of the importance of this auxiliary
brake system is demonstrated by the Komatsu Operation &
Maintenance Manual for its forklift truck Model Nos. FOl00/115-5
and F0135/150E-5 wherein detailed instructions are provided for a
pre-operation testing procedure to ensure that the brake
accumulator is properly functioning. (Ex. P-1, p.25). 1 It is a
s impl e two step test. The operator pumps the brake repeatedly
~ith the engine off until the hydraulic brake fluid in the
accumulator is depl eted and a buzzer sounds. The engine is then
started. If the buzzer goes off after a few seconds it indicates
the accumulator has been refilled and the reservoir is not
defective . If the buzzer does not go off it means the
a ccumul ator i s malfunctioning and cannot be refilled.
The respondent has admitted that the Komatsu accumulator
t est was not performed because the procedure was unknown .
1

The Komatsu forklift in issue was Model No. FD135-5 . The
Komatsu mai ntenance manual identified and admitted in evidence as
Petitioner's Exhibit No. 1 was received despite the respondent's
objection . It is clear on its face that this manual relates to
forklift Model No. FD135-5, the model in question, as well Model
Nos. FD150E-5, FDl00-5 and FD115-5. Moreover, Komatsu furnished
the manual in response to the Secretary's request for the
pertinent manual for the subject Model No. F0135-5 forklift truck
that was tested under MSHA's supervision on May 26, 1993, in
Greensboro, North Carolina. (Tr. 121-128, Ex. P-1) .

2057

Reynolds and Crapps knew nothing about testing the brakes with
the engine off. (Tr. 43-44, 84-86). George M. Canady III, the
respondent's superintendent at the Ridgeway Mine· site, testified
that neither he nor Phil Baughtman, the supervisor responsible
for training forklift operators, was familiar with Komatsu•s
accumulator test procedure. (Tr. 47, 299-302).
The explanation given for the respondent's lack of knowledge
with respect to the accumulator's function and testing was that
Fluor Daniel had requested the Komatsu forklift maintenance
manual from the Kennecott Ridgeway Mining Corporation but it had
not been provided. (Tr. 291). In essence, the respondent
continued to operate this heavy piece of construction equipment
despite the fact that it had never read the operational
instruction manual. For example, Crapps testified that he had
driven the Komatsu forklift "off and on for five years."
(Tr. 63). Kennecott's reported failure to provide the forklift's
operational manual does not absolve the respondent from its
responsibility to read it. As evidenced in this case, the
respondent's failure to acquaint itself with the manufacturer's
operational and testing instructions for the forklift prior to
its continued use is inexcusable and highly negligent.
Finally, the respondent, in its posthearing brief, maintains
that the standard in section 56.14100(a) is unconstitutionally
vague. The Commission in Ideal Cement Company, 12 FMSHRC 2409
· (November 1990), addressed a similar issue. In Ideal, the
Commission considered whether the standard in section 56.9002,
30 C.F.R. S 56.9002 (1987), was overly broad. Section 59.9002
provided: "Equipment defects affecting safety shall be corrected
before the equipment is used. " 2 The Commission stated:
Section 56.9002 must be construed in light of its
underlying purpose -- the protection of miners
operating the equipment or exposed to the equipment's
use. That purpose was plainly set forth in the
Secretary's statement of purpose and scope of the
Part 56 standards, which provided: "The purpose of
these standards is the protection of life, the
promotion of health and safety, and the prevention of
accidents." 30 u.s.c. S 56.1 (1987) . (Section 56.1
has been carried forward unchanged in the Secretary's
present Part 56 regulations.) AnY overly narrow or
restrictive reading of the scope of section 56.9002
cannot be reconciled with that statement of purpose or
with the fundamental protective ends of the Mine Act
itself, as set forth in section 2 of the Mine Act. See
30 u.s.c. S 80l(a), (d), & (e).
2

The provisions of section 56.9002 are currently contained
in section 56.7002, 30 C.F.R. S 56.7002.

2058

Thus, section 56.9002, which relates to the
performance of equipment used in mines, must be
interpreted and applied in a manner fostering the basic
aim of protecting the health and safety of miners.
(Emphasis added). 12 FMSHRC at 2414.
The Commission further stated:
However, in interpreting and applying broadly worded
standards, the appropriate test is not whether the
operator had explicit prior notice of a specific
prohibition or requirement, but whether· a reasonably
prudent person familiar with the mining industry and
the protective purposes of the standard would have
recognized the specific prohibition or requirement of
the standard. (Emphasis added). 12 FMSHRC at 2416.
The requirement of familiarizing oneself with the
instruction manual for potentially dangerous self-propelled
mobile equipment so that an adequate preshift brake system test
can be performed, and, the requirement of performing meaningful
preshift brake system tests, are readily discernible from the
lanquage of section 56.14100(a}. Consequently, the respondent's
contention that this standard is overly broad is rejected.
As a final matter, at trial, and in its posthearing brief,
the respondent relies on the fact that it was not responsible for
the forklift's maintenance and repair in an attempt to escape or
mitigate liability. While I recognize that the respondent was
not responsible for the forklift's maintenance and repair, it had
a duty to ensure the safe operation of this potentially dangerous
v ehicle . While l ongstanding maintenance problems may have been a
contributing factor, the respondent, who had possession and
control of this vehicle on April 21, 1993, from 9:00 a.m. until
the brake failure at approximately 2:30 p.m., had the opportunity
to prevent this accident if proper unsophisticated preshift brake
i nspections had been performed. Having failed to perform such
tests, the respondent must be held accountable. It should be
noted that , while not the subject of this proceeding, Kennecott,
as the forklift owner , was also cited by MSHA for its culpability
i n this matter. (Ex. P-6 ) .
Thus, the evidence establishes a violation of the cited
mandatory standard. As discussed above, the violation is
attributable to a high degree of negligence by the respondent in
that inadequately trained individuals were required to perform
preshift inspections of mobile equipment. This lack of training
contributed to ineffective preshift inspections and the resultant
serious gravity of the violation. Given the penalty criteria of
section llO(i} of the Act, which include consideration of the
size of the respondent corporation, a publicly held company
listed on the New York Stock Exchange, I conclude that $20,000 is
2059

the appropriate civil penalty to be assessed for citation
No. 4094234.
ORDER
Accordingly, consistent with this decision, IT %8 ORDBRBD
that Citation No. 4094231 IS SBVBRBD from Order No. 4094231 and
%8 JIBREBY VACATED. IT IS l'URTKER ORDERED that Order No . 4094231
and Citation Nos. 4094232 and 4094234 ARB APPIRKBD. The
respondent, Fluor Daniel Incorporated, SHALL PAY, within 30 days
of the date of this decision, a total civil penalty of $27,500.00
in satisfaction of Citation Nos. 4094232 and 4094234 affirmed
herein. Upon receipt of payment, this matter IS DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution :
Leslie John Rodriquez, Esq., Office of the Solicitor, U. s .
Department of Labor, 1371 Peachtree Street, N.E., Room 339,
Atlanta, GA 30367 (Certified Mail}
Carl B. Carruth, Esq., McNair & Sanford, P.A., 1301 Gervais
Street, Suite 1800, Nations Bank Tower, Columbia, SC 29201
(Certified Mail }
/ fb

2060

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

OCT 6

199{

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 94-76-M
A.C. No. 24-02023-05501

v.

Docket No. WEST 94-279-M
A.C. No. 23-02023-05503
KONITZ CONTRACTING, INC.,
Respondent

.: Mine: Konitz #3

Docket No. WEST 94-277-M
A.C. No. 24-01450-05501 QYQ

Mine:

Zortman

Docket No. WEST 94-278-M
A.C. No. 24-01813-05509
:

Mine: Portable Crusher #2

DECISION
.Appearances :

Kristi Floyd , Esq. , Office of the Solicitor,
Department of Labor , Denver , Colorado, for
Petitioner ;
Tom Konitz, President, Konitz Contracting,
Lewistown, Montana, Pro Se.

u. s .

Overview
These cases arise out of three inspections of Respondent's
worksites by the Mine Safety and Health Administration (MSHA) .
The first (Docket WEST 94-278-M) involves a citation for
excessive noise exposure issued during an inspection of Konitz's
portable crusher # 2. The second inspection (Dockets WEST 94-76M and 94-279-M) occurred at a "rip-rap" operation in Fergus
County, Montana, over which Respondent claims MSHA had no
jurisdiction . The third inspection (Docket WEST 94-277-M)

2061

involves a citation alleging an improper splice in an electrical
cable, and was issued at a time when portable crusher #2 was
operating near Zortman, Montana 1 •
Docket WEST 94-278-M
On April 29, 1993, MSHA Inspector Seibert Smith inspected a
mine site at which Respondent was engaged in crushing rock to be
used in road construction (Tr. 27-28). Smith sampled the noise
exposure of the operator of Respondent's DBL Caterpillar
bulldozer with a dosimeter (Tr. 27-45). The results of this
sampling showed that the employee was exposed to 635% of the
permissible exposure limit for noise (Exh. G-6, Tr. 36-44). This
correlates to an 8-hour time weighted average of 103.5 dba,
compared with the permissible limit of 90 dba set forth in
30 C.F.R. S 56.5050. Periodic Sound Level Meter readings showed
instantaneous noise levels of between 94-104 dba (Exh. P-6,
Tr. 37).
The bulldozer operator was wearing earplugs which had a
noise reduction rating (NRR) of 33 dba (Exh. P-6) 2 • Therefore,
Inspector Smith issued Respondent citation 4331385 alleging a
non-significant and substantial violation of secti9n 56.SOSO(b),
which requires a mine operator whose employee(s) are exposed to
noise levels in excess of the permissible exposure limit to
reduce these levels to below the permissible limit through the
implementation of feasible engineering or administrative
controls. A $50 civil penalty was proposed for this citation.
Respondent abated this citation by installing a cab on its
bul l dozer at a cost of approximately $4,000 (Tr . 183) .
Mr. Konitz 's reason for contesting the civil penalty for this
citation is that "I disagree that when operators can wear ear
protection, and they do, that this kind of money should be spent
for a cab (Tr. 183)." Respondent's disagreement is also due to
the denouement of a prior citation he received in May, 1990,
al leging excessive noise exposure for the operator of the same
bulldozer ( Exh . P-5).
In May, 1990, Mr. Konitz wrote MSHA asking for technical
assistance in abating the prior citation (Exh. P-3). An MSHA
technical advisor performed what Mr. Konitz believes was a
cursory inspection of his equipment and them wrote a report
1
Apparently other citations, for which the penalty was
contested, were issued during this inspection. However, they are
not included in any of these dockets and are not before me.

2

The noise reduction rating (NRR) of ear muffs and ear
plugs is determined by the u. s. Environmental Protection Agency
through laboratory tests, Appendix B to 29 C.F.R. S 1910.95.

2062

recommending that a cab be installed on the bulldozer (Exh. P-4,
Tr. 182). The report recommended that, if the cab failed to
bring the employee's noise exposure below 90 dba, that acoustic
foam be installed on the walls and roof of the cab, plus belting
and an acoustic mat on the floor (Exh. P-4, page 4).
Mr. Konitz did not install the cab in 1990. He did put
rubber conveyor belting on the floor and side of tanks of the
bulldozer (Tr. 203), and asked MSHA to resample for noise.
Inspector Fran Maulding sampled the bulldozer operator's exposu.r e
in May, 1991, and measured it at 126% of the permissible exposure
limit (Exh P-5, page 3). Since this measurement was within the
33% error factor for such sampling, Respondent was considered to
be in compliance with the standard and the citation was
terminated.
The Secretary's burden of proving a violation of 56.5050 is
set forth in the Review commission's decision in Callahan
Industries, 5 FMSHRC 1900 at 1909 (November 1983). The Secretary
must prove: l) a miner's exposure to noise levels in excess of
the limits specified in the standard; 2) sufficient credible
evidence of a technologically achievable engineering control;
3) sufficient credible evidence of the reduction in noise level
that would be obtained through implementation of the engineering
control; 4) sufficient evidence of the expected economic costs of
the control; and 5) a reasoned demonstration that, in view of
elements 1-4 above, the costs of the control are not wholly out
of proportion to the expected benefits.
The Secretary has easily met his burden of proof for the
f irst 4 elements of the Callahan standard. Inspector Smith ' s
dosimeter readings establish the bulldozer operator's
overexposure to noise . The report of MSHA's technical expert
(P-4 ), which followed the 1990 noise citation and the
installation of the cab by Mr. Konitz, establishes that a
technologically achievable engineering control was available.
Mr. Konitz provided the evidence regarding the cost of this
control--$4,000 . Finally , the evidence of noise reduction is
provided at page 4 of the instant citation {numbered 4331385-1 in
the upper right hand corner). On November 17, 1993, the noise
exposure of the bulldozer operator was sampled at 74% of the
permissible exposure limit, after the cab had been installed.
The fifth element of the Callahan test requires some
discussion because Respondent has at least a facially appealing
arqument as to whether the $4,000 he spent to abate the citation
was not wholly out of proportion to the benefits to his employee.
That employee was wearing ear plugs with a noise reduction rating
of 33 clba. If the employee actually obtained the 33 clba
reduction, only 80 dba of noise reached his inner ·ear.

2063

MSHA and its counterpart for non-mining industries, the
Occupational Safety and Health Administration (OSHA), have long
wrestled with this issue, See Commissioner Lawson's dissent in
Callahan. Both agencies have generally assumed that personal
protective equipment often does not provide the noise attenuation
in the workplace that it does in the laboratory where the noise
reduction ratings are determined. Indeed, the agencies have
assumed that, unless ear protection is worn properly and its use
is closely monitored, it may provide little protection.
OSHA's response to this problem, with regard to general
industry (manufacturing) only, was to promulgate a detailed
hearing conservation standard, which requires, for example,
regular audiometric testing for employees who must wear ear plugs
or ear muffs, 29 c.F.R. § 1910.95(c). In light of this
regulation, OSHA has also modified its noise enforcement policy
in general industry. The OSHA Field Operations Manual provides
in Chapter IV, paragraph c. 3, BNA Occupational Safety and Health
Reporter paragraph 77:2513-2514:
Current enforcement policy regarding 29 CFR
1910.95(b) (1) allows employers to rely on personal
protective equipment and a hearing conservation program
rather than engineering and/or administrative controls
when hearing protectors will effectively attenuate the
noise to which the employee is exposed to acceptable
levels as specified in Table G-16 or G-16a of the
standard. Professional judgment is necessary to
supplement the general guidelines provided here.
a. citations for violations of 29 CFR 1910.95(b) (1)
shall be issued when engineering and/or administrative
controls are feasible , both technically and
economically ; and
(1) Employee exposure levels are so high that hearing
protectors alone may not reliably reduce noise levels
received by the employee's ear to the levels specified
in Tables G-16 or G-16a of the standard. Given the
present state of the art, hearing protectors, which
offer the greatest attenuation, may not reliably be
used when employee exposure levels border on 100
OBA .. • , or

(2) The costs of engineering and/or administrative
controls are less than the cost of an effective hearing
conservation program.

***
b. A control is not reasonably necessary when an
employer has an ongoing hearing conservation program

2064

and the results of audiometric testing indicate that
existing controls and hearing protectors are adequately
protecting employees ...
I take judicial notice of the OSHA Field Operations Manual
and conclude that ear plugs and/or ear muffs in the absence of
the kind of hearing conservation program that complies with the
OSHA standard does not reliably protect employees from noise
levels in excess of the permissible exposure limits in 30 C.F.R.
S 56.5050. I, therefore, conclude that on this record, the
$4,000 cost of a cab for Respondent's bulldozer is not wholly out
of proportion to benefits to Respondent's employees.
I, thus,
affirm citation 4331385.
I assess a $20 civil penalty for this citation, rather than
the $50 penalty proposed by MSHA. Respondent had been cited for
a noise violation previously on the same piece of equipment and
had not implemented MSHA's suggested engineering solution.
However, I regard Respondent's negligence very low since MSHA's
noise sampling in 1991 indicated to Mr. Konitz that he could
comply with the standard by merely installing rubber conveyor
belting on the machine.
Respondent obviously demonstrated good faith -in abating the
violation by spending $4,000 to install the cab. Finally, given
the fact that the exposed employee wore ear plugs, the gravity of
the violation does not warrant a higher penalty. The other
section llO(i) penalty criteria; size, prior history, and
Respondent's ability to stay in business, do not warrant either a
higher or lower penalty .
Dockets WEST 94-76-M and WEST 94-279-M
On August 25 , 1994, Inspector Smith visited a worksite west
of Utica, Montana, at which Respondent was engaged in producing
"rip-rap" , large rocks used in road building or to reinforce
riverbanks (Tr . 14-16) . When Smith arrived at the site there
were two employees of Konitz Contracting present and a
subcontractor who was engaged in drilling and blasting rock
(Tr . 14-16) . · One of Respondent's employees was operating a
front-end loader . With this loader he drove up a ramp and
deposited rock into a hopper, which was covered with a "grizzly."
The function of the grizzly is to separate the larger rocks, the
rip-rap, from smaller materials not suitable for use as rip-rap.
Respondent contends that this worksite, designated as Konitz
# 3, was not subject to MSHA jurisdiction because no rockcrushing was performed at the site. For this reason he neither
notified MSHA before starting work at this site, nor filed a
legal identity report for the site, MSHA form 2000-1.

2065

Inspector Smith issued Respondent citation 4331469 for failure to
notify MSHA, alleging a violation of 30 C.F.R. S 56.1000. He
also issued citation 4331470, alleging a violation of 30 C.F.R.
S 41.20, for failure to file the identification form.
I conclude that Konitz # 3 was operating as a "mine" as that
term is defined in section 3(h) of the Federal Mine Safety and
Health Act, 3.0 u.s.c. 802 (h). "Mine" is defined in that section
as, " •.• (A) an area of land from which minerals are extracted in
nonliquid form •••• " The site, at which Respondent was operating
on August 25, 1993, was an area of land from which minerals
(rock) was being extracted in nonliquid form (by drilling and
blasting).
Furthermore, Congress in section 3(h) delegated to the
Secretary of Labor some degree of discretion in making
determinations which worksites are subject to the Mine Safety Act
or to the OSH Act. The Secretary exercised this discretion in an
interagency agreement between MSHA and OSHA in 1983, BNA
Occupational Safety and Health Reporter paragraph 21:7071. This
agreement is entitled to deference from the Commission, Donovan
v. Carolina Stalite Company, 734 F.2d 1547 (D.C. Cir. 1984).
Appendix A of the Interagency Agreement sets forth specific
areas of MSHA authority. It provides:
Following is a list with general definitions of milling
processes for which MSHA has authority to regulate
subject to paragraph B6 of the Agreement. Milling
consists of one or more of the following processes:
crushing , grinding , pulverizing, sizing, concentrating ,
washing , drying. oo {emphasis added)
Sizing is defined as:
oo othe process of separating particles of mixed sizes
i nto groups of particles of all the same size , or into
groups in which particles range between maximum and
minimum sizes.
BNA Occupational Safety and Health Reporter , at page 21:7073.
I find that Konitz Contracting's plant number 3 was engaged
in sizing, an activity that is within MSHA jurisdiction. A
similar operation previously found to be within MSHA jurisdiction
was the passing of sand through a screen for use on icy roads,
New York State Department of Transportation, 2 FMSHRC 1749 (ALJ
July 1980); Also see, Cyprus Industrial Minerals Co. v. fMSHRC,
664 F.2d 1116 (9th Cir. 1981) [driving an exploratory shaft in
search of commercially exploitable material found to be subject
to MSHA].

2066

Having found Respondent's I 3 plant subject to the Act, I
affirm citations 4331469 and 4331470. The Secretary proposed a
$50 civil penalty for each of these citations. As Respondent's
delict is essentially the same for both citations--failing to
inform MSHA of a new operation, I conclude that a single penalty
is appropriate for the two citations. Considering the six
statutory criteria, I assess a $50 penalty.
As Mr. Konitz points out, Respondent has diligently reported
the commencement of his various operations to MSHA in the past.
Nevertheless, I believe he had a duty to check with MSHA as to
whether the "rip-rap" operation had to be reported, rather than
unilaterally assuming that it was not subject to the Act. Given
the fact that the rip-rap operation could expose employees to
hazards indistinguishable from hazards in his other operations,
such as elevated ramps, inadequately protected pulleys and drive
shafts, and electrical hazards, the assumption that the rip-rap
operation was exempt from MSHA jurisdiction, was not reasonable.
The degree of negligence in not contacting MSHA is sufficient to
warrant a $50 civil penalty.
The Berm Citation
Inspector Smith observed Respondent's front end loader
operator drive his vehicle up a ramp which had no guardrails or
berms on either side (Tr. 20-21). The ramp was relatively short
in length, possibly less than ten feet long (Tr. 112-13, Exhibits
2a & b). However, there was only one foot clearance on each side
of the ramp for the loader (Tr. 26, 113). The ramp was elevated
4-5 feet on one side and about 6-8 feet on the other (Tr. 23-25).
Smith issued Respondent citation 4331471 alleging a
significant and substantial violation of 30 C.F.R. S 56.9300 .
The inspector concluded that an accident was reasonably likely
due to the narrow width of the ramp, and that it was reasonably
likely that such an accident would result in death or serious
injury--particularly since the loader driver was not wearing a
seat bel t (Tr o 25 8 108 , 205 } 0
Given the short length of the ramp and the fact that the
operator would normally not turn the steering wheel, I conclude
that, in the normal course of mining operations, it is not
reasonably likely that an accident would occur. Mathies coal
~, 6 FMSHRC 1, 3-4 (January 1984).
However, given the extreme
seriousness of an accident if one did occur, I find the six
penalty criteria (particularly gravity) warrant the assessment of
a $100 civil penalty.
The Unguarded Tail Pulley
During the August 25, 1993 inspection of Respondent's riprap operation, Smith observed a self-cleaning, or fin-type tail

pulley on a conveyor under the hopper that was unguarded (Tr . 5253, Exh. G-7). He observed an employee walk across the steel
frame behind this pulley on two occasions (Tr. 55-56). Smith
issued Respondent citation 4331474 alleging a significant and
substantial violation of 30 C.F.R. 56.14107(a). Given the
obvious hazard of the exposed pulley and equally obvious exposure
of a miner to the pinch-point of the unguarded pulley, this
violation clearly meets the criteria of Mathies Coal Co. for a
significant and substantial violation.
I assess an $80 penalty. Both the gravity of the v i olatio.n
and Respondent's negligence in not protecting the pulley warrant
at least an $80 penalty.
Unguarded Belt and Pulley on Generator
Inspector Smith also observed an employee turn a generator
either on or off on three different occasions (Tr. 57-61, 121-23 ,
Exh. G-8 ) . Two feet below the on/off button manipulated by the
miner was an unguarded pulley and drive belt (Tr. 63). The area
in front of the generator was slick and muddy, which led the
inspector to conclude that it was reasonably likely that an
employee could fall and contact the unguarded pulley or belt
(Tr . 121-26).
Smith issued Respondent citation 4331475 alleging an "S&S"
violation with regard to the generator. Although as the
inspector admitted, an employee who slipped might grab the top of
a pump or fuel filter before contacting the pulley or belt
(Tr . 124-126 ) , I conclude that in the course of continued mi n i ng
operati ons , it i s reasonably l ikely for a miner to come i n
c ontact with t he hazard . Theref ore , I affirm the citation as a
s i gnificant and substanti a l vi ol ati on.
The Secretary proposed an $81 civil penalty for this
citation; I assess a $60 penalty. I consider the gravity of this
v iolation t o be less than that of the unguarded tail pulley s ince
c ontact was much l ess l ikely t o occur .
Fire -fighti ng Equi pment and Records Vi olations
The inspector asked Respondent's employees where their firef ighting equipment was located; they could not tell him
(Tr . 63-64) . Respondent has not asserted that fire-fighting
equipment was at the site. Therefore, I affirm citation 4331477,
which alleges~ violati on of 30 C.F.R. S 56.4200(a), and assess a
$50 civil penalty.
Smith asked Respondent for records of continuity and
resistance tests on its electrical grounding systems. No such
records were provided and Respondent has not contended in this
proceeding either that the records were kept or that the tests

2068

were made (Tr. 64-68). I, therefore, affirm citation 4331478
which alleges a non-significant and substantial violation of
30 C.F.R. § 56.12028 and assess a civil penalty of $40.
Inspector Smith also asked to see records of the workplace
examinations required by 30 C.F.R. S 56.18002 (Tr. 68-71).
Although Smith did not recall whether he asked Mr. Konitz for
these records, Respondent did not come forth at hearing with any
evidence that it either performed the required examinations or
kept the records of such examinations that must be maintained and
provided to the Secretary by section 56.18002(b). I, therefore,
affirm citation 4331479 and assess a $25 civil penalty.
Prior Arrangements for Medical Assistance
Section 56.18014 provides that:
Arrangements shall be made in advance for obtaining
emergency medical assistance and transportation for
injured persons.
During the inspection, Smith determined that the only
arrangements made by Respondent for obtaining emergency medical
assistance were directing employees to go to the riearest ranch
house and call 911 (Tr. 74, 143-45, 151). Inspector Smith
concluded that this did not satisfy the requirements of the
regulation because the standard requires that emergency personnel
be informed before an emergency as to the exact location of a
worksite and how to reach it (Tr. 127-33).
I agree with the inspector and affirm citation 4331581 .
When the standard requires that arrangements be made in advance,
it is obvi ous ly not satisfied by a 911 call after an accident has
occurred . The standard can only be satisfied by arrangements
made before work commences that emergency assistance and
transportation will be available to a specific worksite, whose
l ocation is known to emergency personnel . I assess a $25 civil
penalty for this viol ation.
Toilet Facilities
I t is uncontroverted that there were no toilet facilities at
the rip-rap site (Tr . 75-77) 0 Inspector Smith visited the site
on its third day of operation and employees either had to relieve
themselves outside or travel to a nearby ranch house (Tr. 75-77 ,
196). Respondent was issued citation 4331583 alleging a
violation of 30 C.F.R. S 56.20008(a) . That regulation requires,
at a minimum, that clean and sanitary portable toilets be
provided on the mine site. I, therefore, affirm the citation and
assess a $30 civil penalty.

2069

Docket WEST 94-277-M
On November 4, 1993, MSHA Electrical Inspector
Richard Ferreira visited the Zortman surface gold mine in
Phillips County, Montana, at which Respondent was working as a
contractor with portable crusher #2 (Tr. 158-159). At this site
he observed a power cable with an inadequate splice. The outer
jacket bonding was not sufficient to cover the individual
conductors and, therefore, might not exclude moisture from
infiltrating the conductors (Tr. 160-173, Exh. G-10)
Ferreira issued Respondent citation 4331678, alleging a
non-significant and substantial violation of 30 C.F.R.
§ 56.12013(c) 3 •
That standard requires that permanent splices
and repairs in power cables be provided with damage protection as
near as possible to that of the original, including good bonding
to the outer jacket.
Inspector Ferreira cited the violation as non-significant
and substantial because the improper splice was behind an I-beam
and not particularly accessible to employees. This violation is
uncontroverted and, thus, I affirm the citation. I assess a $30
civil penalty, noting that the record is devoid of evidence
regarding the degree of Respondent's negligence as to this
violation.
Other Contentions
Respondent contends that the citations in these cases,
particularly those involving his rip-rap operations, are the
r esult of retaliation on the part of MSHA for letters he wrote to
h is congressmen regarding the agency (Tr . 184-86 ) . I find no
e vidence to support this belief .
I do not construe Mr. Konitz's objections to the rip-rap
citations as contending that the operation was not subject to
commerce clause of the Constitution. In any event, the rip-rap
was sold to the Federal Highway Administration for use of roads
leading to an Air Force missile site (Tr . 198-99) and was mined
in part with equipment produced outside the state of Montana
(Tr . 197 ) . Therefore , the rip-rap operation was clearly
affecting interstate commerce.

3

As noted previously, Inspector Ferreira issued other
citations which are not before me.

2070

ORDER
The citations are affirmed as discussed above and the
following civil penalties are assessed:
4331385
4331469
4331470
4331474
4331475
4331477
4331478
4331479
4331481
4331483
4331678

$ 20
$100
$ so in conjunction with 4331471
$ 80
$ 60
$ 50
$ 40
$ 25
$ 25
$ 30
$ 30

Total:

$510

These penalties shall be paid within 30 days of this
decision.

r?A/l~
~t'6r J. Amchan

Administrative Law Judge
703-756-6210

Di stribution :
Kristi Floyd, Esq. , Office of the Solicitor, u. s. Department of
Labor , 1999 Broadway, Suite # 1600, Denver, co 80202-5716
(Certified Mail)
Tom Konitz v President , Konitz Contracting Inc. , P .
Lewistown , MT 59457 (Certified Mail)
/jf

207 1

o. Box 585,

OfFJCE OF ADMINISTRATIVE LM1 JUDGES

2 SKYLINE, 10th FLOOR
5203 LEES8URG PIKE
FALLS CMURCH, VIRGINIA 22041

OCT 1 1 1994
PEABODY COAL COMPANY,
contestant

v.

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

PEABODY COAL COMPANY,
Respondent

.. CONTEST PROCEEDING

.
. Docket No. KENT 94-347-R
. Citation No. 3861905 ; 1/ 6/ 94
... Camp No. 11 Mine

. I.D. No. 15-08357
.
. CIVIL PENALTY PROCEEDING
.
.. Docket No. KENT 93-813
... A.C. No. 15-08357-03743
.. Camp No. 11 Mine
.
.

.

DECISION

Appearances:

David Joest, Esq . , Henderson, Kentucky, for
Peabody Coal Company;
Anne T. Knauff , Esq. , Office of the Solicitor ,
U. S o Department of Labor u Nashville 6 Tennessee ,
for the Secretary of Labor o

Before :

J udge Melick

These cases are before me pursuant to Section lOS(d) of
the Federal Mine Safety and Health Act of 1977 0 30 u.s.c . § 801 ,
~ ~· u the "Act 6 " t o challenge two c i tations issued by the
Secretary of Labor to the Peabody Coal Company (Peabody) for
operating i ts Camp No. 11 Mine without approved ventilation
p lans and therefore in violation of 30 C.F.R. § 75.370(a)(l) .
Citation No. 3547687 was issued May 14, 1993, by
Supervisory Ventilation Specialist Louis Stanley of the
Kine Safety and Health Administration (MSHA) for the failure
of Peabody to have included in its April 26, 1993, ventilation
plan, provisions for a four-cut mining sequence (Joint Exhibit
Ho. 5). It was Stanley's conclusion that the two-cut aining
sequence provided in the Peabody plan (Appendix A, Figure 1)
was not suitable to the Camp No. 11 Mine and that it could not
therefore be approved. The citation was abated when Peabody
thereafter submitted a ventilation plan providing for a four-cut
mining sequence (Exhibit 7-A, page 3, Appendix A, Figure 2).

20 7 2

Section 303(0) of the Act requires a coal mine operator
to adopt "a ventilation system and methane and dust control
plan and revisions thereof suitable to the conditions and
the mining system of the coal mine ••• ·" The plan llUSt be
approved by the Secretary, who has delegated this responsibility to the appropriate MSHA District Manager. 30 C.F.R.
I 75.370. The Secretary's standards require that the plan be
•designed to control methane and respirable dust and shall be
suitable to the conditions and mining system at the mine."
30 C.F.R. § 75.370(a)(1).
If the operator and MSHA are unable to agree on the suitability of a plan provision after good faith negotiations over
a reasonable period, then the operator may refuse to include
the disputed provision in its ventilation plan, whereupon MSHA
may revoke its previous approval of the mine's plan and cite
the operator for failing to have an approved ventilation plan. 1
The operator may obtain review of the disputed requirement in
proceedi ngs arising out of the citation. Peabody Coal Co.,
15 FMSHRC 381, 387-388 (1993). The Secretary bears the burden of
proof in such proceedings as to the suitability of the disputed
plan provision, Peabody Coal Co., at p.388, and the Secretary
has previously acknowledged that in cases in which he seeks to
require changes to previously approved plans, he does not object
to "bearing the burden of proving the non-suitability of those
plans. " 2
While the Commission has never specifically articulated a
formula to apply the standard "suitable to the conditions and
mining system" of the mine, the undersigned previously held
i n Peabody Coal Co. , 15 FMSHRC 1703 , 1705 (1993) , that the
1

There is no claim in these cases that good faith
negotiations did not precede this action.
2

I n his posthearing brief the Secretary , contrary to
n is previous position, now argues that because a ventilation
p lan , once approved, has the legal force and effect of a mandatory safety standard, his decision to impose a requirement
in a ventilation plan should be reviewed by the administrative
l aw judge under the "arbitrary and capricious" standard of
review employed by the courts of appeal in judicial review of
the Secretary's regulations. This position is inconsistent
however with the role Congress has provided for the Commission
and with the ·nature of the plan approval process itself. See
Old Ben Coal co., 1 FMSBRC 1480, 1484 (1979) and Zeigler Coal
~ v. Kleppe, 536 F.2d 398, 405-406 (D.C. Cir. 1976).
Kore
specifically as noted above, in Peab9dv Coal Co., 15 PMSHRC
381, 388 (1993), the Commission held that the Secretary has
the burden of proving the suitability of a ventilation plan
requirement he seeks to impose.

2 0 73

Secretary could meet his burden of proof if he has "objectively
identified a measurable safety hazard that is not addressed in
the previously approved ventilation plan" and that he can establish the suitability of the disputed plan provision by ahowing
that "his proposed modifications address the above a~ety
hazard."
Within this framework the underlying issues before me in
case Docket No. KENT 93-813 are {1) whether the previously
approved ventilation plan for the Peabody Camp No. 11 Mine
providing a two-cut mining sequence was no longer suitable to
the conditions of that mine as of May 14, 1993, and {2) whether
the ventilation plan provisions {incorporating a four-cut mining
sequence) advocated by the Secretary were suitable to the Camp
No. 11 Mine as of that date.
According to MSHA Supervisory Ventilation Specialist
Stanley, the Secretary's proposed ventilation plan changes
were warranted by evidence of increasing methane liberation.
He testified that the objective measurable safety hazard to
be addressed by the four-cut mining sequence was the hazard
of methane ignition. rn this regard, he cited as a basis for
the proposed plan changes, "the fact that we did some in-mine
inspections and we observed that methane was being liberated
from the face at a higher rate than I had seen before at
Camp No. 11."
Rather than present evidence of increased face methane
liberation , however, Stanley cited evidence of increased
t otal mine methane liberation. 3 That evidence shows that the
t otal methane liberated from the mine for the 24 hour period
on February 10 8 1992 , was 258,896 cubic feet , on June 11, 1992 ,
was 436,462 cubic feet , on December 15, 1992, was 491,674 cubic
feet , during the period January 21 through February 5, 1993
was 499 , 392 cubic feet, and on April 6, 1993 was 387,508 cubic
feet. 4 Based on this information Stanley opined that the twoc ut sequence of mining at the Camp No. 11 Mine was no longer
suitable and that a four-cut sequence was required .

l
Stanley's reference to an in-mine evaluation lacks
record support {See May 17 Tr. 145). Moreover, I do not find
that Stanley's reference to the observations of his assistant,
Troy Davis, that he (Davis) once noted methane levels briefly
exceeding one percent, constitutes sufficient evidence of
increased face methane concentrations.

4

While the evidence also shows that 410,003 cubic feet
of -.ethane was liberated over the 24 hour period on June 21,
1993, Stanley obviously did not have this information when he
issued the citation on May 14, 1993.

2074

It is clear, however, from the testimony of highly
qualified expert Donald Mitchell, 5 as well as the expert
testimony of James Wolfe, that total mine methane liberation
is not a valid measure of face methane liberation. Indeed,
both Mitchell and Wolfe unequivocally reject the use of total
aine methane liberation as a valid measure of face .ethane
liberation in this case.
Both of these experts noted, in explaining why total mine
methane liberation is not relevant to the issue of face methane
liberation, that total mine methane liberation increases as the
number of active working sections increases. In particular,
they noted that from February 1992 to June 1992 the number of
working sections at the Camp No. 11 Mine increased from three
to five. They also observed that overall mine methane liberation
increases as mining progresses because there are more inactive
sections and more rib lines to produce methane. Indeed, Mitchell
concluded that the increases in total mine methane liberation at
the subject mine between February 1992 and December 1992 were low
considering the increased number of worked-out areas, increased
rib lines and increased production. Finally, Mitchell noted that
in order to determine face methane liberation you must examine
the records of each working section. Be did so and found no
changes in face methane liberation.
In light of Mitchell's extraordinary credentials and the
inherent logic of his presentation I give his testimony
particular weight. I therefore conclude that the Secretary's
reliance upon total mine methane liberation to determine the
need for the proposed changes is misplaced and indeed does
not support the proposed changes in Peabody's ventilation plan
f rom a two-cut mining sequence to a four-cut mining sequence.
I n addition, the unchallenged evidence from the section records
that face methane liberation has in fact not changed, completely
undermines the Secretary's position herein. The Secretary has
accordingly failed in his burden of proving that Peabody's
pre-existing plan setting forth a two-cut mining sequence was
not suitable to the Camp No. 11 Mine as of May 14, 1993, and
has failed in his burden of proving that the four-cut sequence
5

Mitchell has a Masters Degree in Mining Engineering
from Columbia University, is a registered professional engineer
in Pennsylvania, and is presently a consultant for unions, mine
operators and governments throughout the world specializing in
aine ventilation, mine fires and mine explosions. Be was
~or11erly MSHA's principle mining engineer in technical support
and, in that capacity, was chief of its approval certification
center, chief of miner emergency operations and chief of the
electrical laboratories. Mitchell was also assistant coordinator
in the development of regulations under the Federal Coal Mine
Health and Safety Act of 1969.

2075

should be substituted as suitable to the conditions at the
camp No. 11 Mine as of that date. Accordingly, Citation
No. 3547687 must fail and civil penalty proceeding Docket
No. KENT 93-813 must be dismissed.
In reaching the above conclusions, I have not disregarded
Kr. Stanley's testimony that in finding the pre-existing plan

unsuitable, he also considered a •draft" from "headquarters"
that included language recommending that cuts be limited to
twenty feet "unless it can be proven that a deeper cut is all
right to take." I have also not disregarded Stanley's testimony that be also relied upon reports from "other people" in
MSHA that bis MSHA district, District 10, was the only district
in the country that permitted a two-cut sequence and did not
require a four-cut sequence. However, such statements, without
any underlying foundation or analysis, can be given but little
weight. 6
The Secretary also argues, in essence, that even if the
citation was issued without sufficient grounds, results of a
face ventilation investigation by MSHA's Pittsburgh Safety and
Health Technology Center (Tech Center) obtained subsequent to
the citation at issue justifies his prior conclusion that the
pre-existing plan calling for a two-cut mining sequence was
not suitable and that the four-cut mining sequence should be
substituted at the Camp No. 11 Mine. The investigative report
(Report) resulting from a May 11 through 13, 1993 study directed
by MSHA mining engineer Michael Snyder, appears, however, to
have been seriously flawed for several reasons.
First, the underlying data may have been seriously comproaised by the presence during the study of eight to ten people
between the line brattice and the rib thereby obstructing the
face ventilation. James Wolfe the Peabody supervisor of
ventilation at Camp No. 11, who was present during the subject
investigation, testified that he frequently observed persons
in the area between the brattice and the rib, including
two working miners and up to eight participants in ~e study
group.
Wolfe later performed a test in this ·area in January 1994,
and found that, on average, one person within the area between
the brattice and the rib produced a ten percent reduction in the
6

This evidence suggests, moreover, that the
Secretary has been attempting to enforce a provision that
is not aine specific, but should have been implemented
through the Act's notice and comnent rulemaking procedures
aet forth in section 101 of the Act. See Zeigler Coal Co.
v. glep,pe, 536 F.2d 398 (D.C. Cir. 1976), and Secretary v.
Pelbody Coal Co., 15 FMSHRC 381 (1993).

2076

volume of air and two persons caused a fifteen percent reduction.
According to Wolfe, the actual air flow during the testing period
would therefore have been somewhat less than the actual readings
observed during the MSBA investigation. Under the circumstances,
it aay reasonably be inferred that the face ventilation was in
fact restricted during the MSHA investigation thereby causing
.are frequent and higher methane readings then otherwise would
bave resulted. on this basis alone, the face ventilation
investigation must be viewed with caution.
In any event, even assuming the accuracy of the investigation data, I nevertheless give significant weight to the
expert testimony of Donald Mitchell who, even when assumi.n g
the validity of the investigative results, rejected each of
the conclusions in the Report based on those results. Mitchell
also rejected the underlying premise of the Report, i.e., that
relatively brief peak periods (averaging 10 seconds) of methane
of one percent or slightly higher provided a basis for the
proposed ventilation plan modifications.
Mitchell testified that the regulatory requirement for
corrective measures to be taken upon reaching one percent
methane was developed to create a margin of safety. He noted
that it was established as the last point before which you
must take action. Mitchell further noted that since the peak
methane readings ta.ken in the investigation were essentially
instantaneous and since no action was necessary to actually
reduce the methane concentration, no modifications to face
ventilation were needed. Mitchell concluded that nothing in
the Report showed any reason for concern for the existing face
ventilation at the Camp Ho. 11 Mine. He maintains that there is
no statutory or regulatory basis or actual need based on safety
for the ventilation plan to guarantee that methane be less than
one percent at all times.
Mitchell testified, in summary, that the two-cut system
is a safe and efficient method of mining and that it was a
"suitable" method for the subject mine. Mitchell further
observed that the four-cut system may indeed create an even
greater hazard to ·Jlliners because it requires more frequent
aovement of the continuous miner and shuttle cars. According
to Kitchell, this aovement exposes the miner helper to more
back injuries and slipping injuries in handling the trailing
cable and exposes the miner helper to the danger of moving
abuttle cars.
Citation Ho. 3861905 (Docket No. KENT 94-347-R) was
iaaued by Stanley on January 6, 1994, for Peabody's refusal
to incorporate two further provisions in its ventilation plan
in addition to the requirement for a four-cut mininq sequence,
i.e., (1) that at least 8,000 cubic feet per minute (cfm) of
air be delivered to the inby end of the line brattice when the

2 077

wet bed scrubber is operating and (2) that a second methane
sensor be installed on the line brattice side of the continuous
ainer between the cutting head and the scrubber inlet (Joint
Exhibit No. 20, 4th and 5th pages, paragraphs 3 and 6).
As before, the issues regarding this citation are similarly
whether the previously approved ventilation plan for the
Peabody Camp No. 11 Mine was no longer suitable to the conditions
of that mine as of January 6, 1994, and (2) whether the ventilation plan amendments advocated by the Secretary were suitable to
the Camp No. 11 Mine a.s of that date. As previously noted, the
Secretary bears the burden of proof on these issues. Peabody
Coal Co., 15 FMSHRC 381 (1993) and Peabody Coal co., 15 FMSHRC
628 (1993).
(1)

As the basis for the Secretary's insistence on these
two additional requirements, Stanley testified that he relied
upon the same evidence of an increase in overall mi.n e methane
liberation previously discussed in reference to Citation
No. 3547687. For the reasons already noted, however, I find
such reliance to have been misplaced and that such data is
invalid for determining face ventilation re.q uirements.
Stanley testified that he also relied upon the MSHA Report
(Joint Exhibit No. 12) and, in particular, upon the following
suggestions in the Report:

3.
Based on the data collected during the
investigation, a quantity of 12,200 cfm (5.76 rr/ s)
would have been necessary to maintain a peak face
area methane concentrations below 1.0 volume percent
97 . 5 percent of the time . This indicates that an
i ncrease in the available air quantity or other
modifications to the face ventilation system may
be necessaryo
4.
Since 20 of 26 peaks detected on the right
side of the miner were not detected on the left side
of the miner , an additional sensor located on the
right side of the miner would improve the detection
of methane in the face area.
The Report itself may not be relevant however since
the study on which it was based was conducted while the
Camp No. 11 Kine was following the two-cut mining sequence.
When the Report was prepared, MSHA had already required
Peabody to switch to the four-cut sequence. No additional
•tudy was conducted under the four-cut sequence and no
in-aine investigation was performed before MSHA illposed
the new requirements.

207 8

In any event, Stanley's decision to require the subject
modifications in the ventilation plan was bottomed on his
belief that a ventilation plan must be such that it "guarantees
that (in all areas being mined] methane can be kept to a
one percent or less than one percent value." However, neither
the Secretary nor his representatives can simply and arbitrarily
decide through the ventilation approval process that ventilation
plans should be required to maintain methane at such levels at
all times. Zeigler Coal Co. v. Kleppe, 536 F.2d 398 (D.C. Cir.
1976); Carbon County Coal Co., 7 FMSHRC 1367 (1985), and Peabody
Coal Co . , 15 FMSHRC 381, 186-387 (1993).
For the reasons previously noted, however, and giving
decisive weight to the testimony of Peabody's highly qualified
expert, Donald Mitchell, that neither the "8,000 cfm" nor the
"second methane monitor" proposed requirements were necessary
for proper ventilation at the Camp No. 11 Mine, I do not find
that the Secretary has met his burden of proving that the
pre-existing plan was "not suitable" to the Camp No. 11 Mine,
or that the proposed modifications were "suitable" or necessary
to that mine. Under the circumstances Citation No. 3861905,
issued January 6, 1994, must also be vacated.
ORDER

Citation Nos. 3861905 and 3547687 are h eby vacate
Civil Penalty Proceeding Docket No. KENT 93-8 3 is dism'
and Contest Proceeding Docket
94-347 R

Law Judge
Distribution :
David Joest , Esq. , Peabody Coal Company, 1951 Ba.r rett
Court , P . O. Box 1990 , Henderson, KY 42420 (Certified Mail)
Anne T . Knauff, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)

\lh

2079

APPENDIX A

-,-- ;
iI I
4 0'

CUT ttl

I

I.
CUT tt2 I CUT

CUT •2

T

tt l

4 0'

l·
\

\

\

.

\

..

\
\
\
\

\

\
\

~

\
\

\ .

/

.

\

\

--

LEGEND
/

'

--/

CURTAIN
LINE 'BRAT TICE
A!RFLO'w'

Figure 1

2 0 80

APPENDIX A

---,---

I

1

ANY SINGLE CUT CAN BE A
MAXlMUH ·Or 20 rEET .

CUT

•4 1 CUT t13

--- I --1

40'

_J_

CUT •2 I CUT •1

I
- - - t __ _

\
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-

LEGEND
'

/

'

--/

CURTAIN
LINE BRATTICE
AJRFLO\rl

Figure 2

2031

PBDBRAL KDiB SUETY DD HBAL'l'JI RBVXBW COJDllSSXOlf
OFFICE OF ADMINISTRATIVE LA~ JUDGES
2 SKYLINE, 10th FLCX>R
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

rocr 1 2 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
:

Docket No. VA 94-53-M
A.C. No. 44-00101-05539
Docket No. VA 94-55-M
A.C. No. 00101-05540

RIVERTON CORPORATION,
Respondent

Quarry #1
DECISIONS
Appearances:

Glenn M. Loos, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the petitioner/respondent;
Dana L. Rust, Esq., McGuire, Woods, Battle and
Boothe, Richmond, Virginia, for the
contestant/respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern civil penalty proposals filed by
t he petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
820{c) , seeking civil penalty assessments for thirty-four (34)
alleged violations of certain mandatory safety standards found in
Part 56 , Title 30 , Code of Federal Regulations . A hearing was
held in Charlottesville , Virginia, and the parties appeared and
participated fully therein .
Issues
The issues presented in these proceedings include the fact
of violation, whether some of the violations were "significant
and substantial", and the appropriate civil penalty assessments
to be made for the violations. Additional issues raised by the
parties are identified and disposed of in the course of these
decisions.

2082

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301 et seq.
2.

Sections llO{a) and llO{i) of the Act.

3.

Commission Rules, 29 C.F.R.

§

2700.1, et seq.

Admissions
The respondent has admitted that it is the owner and
operator of the mine at which the citations in these proceedings
were issued, and that its mining operations are subject to the
jurisdiction of the Mine Act, as well as the Commission and the
presiding judge in these proceedings.
Discussion
In the course of the hearings the parties were afforded an
opportunity to discuss settlements of all of the contested
violations in these proceedings, and evidence was presented with
respect to the six· statutory civil penalty assessment criteria
found in section llO(i). In addition to trial counsel, the MSHA
inspector who issued all of the disputed citations, and the
respondent's manager of operations were present in the courtroom
and actively participated in the settlement negotiations.
Arguments in support of the proposed settlement disposition of
thirty {30) of the citations were presented on the record, and I
issued bench decisions approving those dispositions pursuant to
Commission Rule 31 , 29 C.F.R. § 2700.31. My bench decisions are
herein reaffirmed .
John E. Gray , the respondent's Manager of Operations,
confirmed that the respondent's mining operation at the No. 1
Quarry consists of a limestone quarry that produces material for
use in its masonry plant for the production of masonry products,
agricultural lime, and pre-mix cement products. He characterized
the operation as an "old" quarry and plant that has been in
operation for many years. He stated that the operation has an
annual production of approximately 400,000 to 600,00 tons.
Petitioner's counsel asserted that MSHA's records reflect a
production of 431,797 tons for the year 1992 (Tr. 53-54) .
MSHA Inspector James E. Goodale, who issued all of the
citations in these proceedings, agreed to the age, size, and
scope of the respondent's mining operations, and he stated that
mine management was cooperative and timely abated all of the
citations in good faith (Tr. 31-32).

2.08 3

Docket No. VA 94-53-M
The respondent conceded the fact of violations with respect
to citation Nos. 4288839, 4288843, 4288849, 4288711, 4288715,
4288842, and 4288848, and agreed to accept the citations as
issued and to pay the proposed penalty assessments.
The petitioner agreed to delete the "S&S" designations with
respect to Citation Nos. 4288845, 4288714, and 4288844 and to
modify the citations to non-"S&S". The petitioner amended its
proposed penalty assessments to reflect proposed penalties of
fifty-dollars ($50) for each of the citations. The respondent
agreed to accept the amended citations and to pay the amended
proposed penalty assessments.
The petitioner agreed to vacate citation Nos. 4288853,
4288846, and 4288708 {Tr. 34-36; 61-62).
The remaining Citation No. 4288838, issued on December 8,
1993, citing an alleged violation of 30 C.F.R. § 56.14107{a), was
submitted to me for summary decision by agreement and
stipulations by the parties.
Docket No. VA 94-55-M
The respondent conceded the fact of violations with respect
to Citation Nos. 4288824, 4288825, 4288826, 4288830, 4288831,
4288835, 4288836, 4288841, 4288847, 4288850, and 4288851, and
agreed to accept the citations as issued and to pay the proposed
penalty assessments.
The petiti oner agreed to delete the "S&S" designations with
respect to citation Nos . 4288832 and 4288852, and to modify the
citations to non-"S&S" . The petitioner amended its proposed
penalty assessments to reflect proposed penalties of fiftydollars ($50), for each of the citations. The respondent agreed
to accept the amended citations and to pay the amended proposed
penalty assessments . The parties agreed that citation No.
4288852 , should be amended to reflect a violation of 30 C.F .R.
§ 56.2003(a) , rather than 30 C.F.R. § 56.4102, as initially
cited .
The petitioner agreed to vacate Citation Nos. 4288823 and
4288834 . The petitioner further agreed that the negligence
finding of the inspector with respect to Citation No. 4288827
should be modified from "moderate" to "low", and that the initial
proposed penalty of $50 should be amended to reflect a proposed
penalty assessment of $25. The respondent agreed to accept the
amended citation and to pay the penalty assessment of $25
(Tr. 36-40; 62).

io s4

The remaining Citation Nos. 4288828, 4288829, and 4288840,
issued on December 7 and 8, 1993 , citing alleged violations of
30 C.F.R. § 56.14107(a), were submitted to me for summary
decision by agreeme nt and stipulations by the parties.
With regard to the four outstanding citations concerning the
interpretation and application of guarding standard 30 C.F.R.
§ 56.14107 (Citation Nos. 4288838, 4288828, 4288829, and
4288840), the parties submitted posthearing briefs in support of
their respective motions for summary decision, and they have
stipulated to the following:
1. Inspector James Goodale was acting in his official
capacity when he issued Citation Nos. 4288838, 4288828,
4288829 and 4288840, and true copies of the citations were
served on the respondent.
2. The respondent owns the Euclid diesel haul trucks, Co.
#T-12, Co. #T-16 and co. #T-14, and the Cat 920 front end
loader which were cited in Citation Nos. 4288838, 4288828,
4288829 and 4288840, and all of this equipment was
operational at the time the citations were issued.
3 . The cited V-belts are part of the diesel -engine assembly
of each piece of equipment in question. The engine
compartment is covered by a hood on the top and by a
radiator grill on the front. The side compartment fac ing
the tires is partially open and a gap exists between the
engine compartment and the wheels.
(Photographs of each
cited vehicle are included as joint exhibits with the
motions filed by the parti es) .
4. The open sides of the engine compartment together with
t he gap between the engi ne compartment and the wheels allows
access to and contact with the engine assembly.
5 . The gaps in the sides of the engine compartments of the
vehi cles were not guarded by the vehi c l e manufacturers.
All of the citations were issued as non-"S&S" violations,
with "moderate" negligence findings, and the cited conditions are
described as follows:
The V-belts on the diesel engine of the Euclid haul truck
co. #12 were not guarded to prevent contact with pinch
points or moving parts. The belts were approx. 4 1/ 2 feet
above ground level. No exposure in this area while
machinery is being operated (No. 42 88838).
The V-belts on the diesel engine of the Euclid haul truck
co. #Tl6 were not guarded to prevent accidental contact with
pinch points or moving parts. The belts were approx.

208 5

4 1/2 feet above ground level. No exposure in this area
while machinery is operating (No. 4288828).
The V-belts on the diesel engine of the Euclid haul truck
Co. tT14 were not guarded to prevent accidental contact with
pinch points or moving parts. The belts were approx.
4 1/ 2 feet above ground level. No exposure in this
area during operations of this equipment (No. 4288829).
The V-belts on the diesel engine of the Cat 920 front end
loader were not guarded to prevent contact with pinch points
or moving parts. The belts were approx. 4 feet above ground
level. No exposure in this area during operations of
equipment (No. 4288840).
The legal issue presented with respect to the citations is
whether the guarding requirement of 30 C.F.R. § 56.14107(a),
applies to mobile machinery -- trucks and a front end loader in
particular -- or only to stationary machinery. Section
56.14107(a) states as follows:
Moving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains,
drive, head, tail, and takeup pulleys, flywheels,
couplings, shafts, fan blades, and similar moving parts
that can cause injury.
Section (b) of section 56.14107, provides as follows:
Guards shall not be required where the exposed moving
parts are at l east s even feet away from walki ng or
working surfaces .
Peti tioner's Arguments
In response to the r e spondent's argument that moving parts
of mobile machi nery such as the cited trucks and loader are not
r equired to be guarded pursuant to section 56.14107 (a) , the
petitioner asserts that the general safety purpose of the mi ne
Act , together with the history , language and purpose of the
regulation and the existing case law supports a finding that the
moving parts of mobile machinery are subject to the guarding
requi rement of § 56.14107( a) .
In support o f its argument, the petitioner states that the
Mine Act is remedia l safety legislation with a primary purpose of
protecting miners, and as such, it should be liberally construed
and not interpreted in a limited or narrow fashion.
The petitioner argues that its interpretations of the Act
and its regulations are entitled to deference and that when
Congress has spoken directly to an issue in a statute so that its

2086

intent is clear, that intent must be given effect. If the Act is
silent or ambiguous on a specific issue, the petitioner believes
that the trial judge must defer to the petitioner's interpretation, so long as it is reasonable and consistent with the
purpose of the Act, and not in conflict with its plain language,
and that this deference must be shown especially when the
petitioner and the Commission agree on an interpretation of the
regulation in issue.
The petitioner asserts that the history of section
56.14107(a), makes clear that the purpose in promulgating this
regulation was to insure that all hazardous moving machine parts
be guarded to protect persons from coming into contact with those
parts, and that the regulation was intended to apply to the
moving machine parts of mobile machinery such as vans, pickup
trucks, and larger, off-road vehicles, 53 Fed. Reg. 32509
(August 25, 1988). The petitioner further believes that the
objective of the regulation is to prevent contact, and that
guards must enclose moving parts to the extent necessary to
achieve this goal.
The petitioner further argues that since it has consistently
interpreted section 56.14017(a), as covering the moving parts of
mobile equipment, its interpretation is entitled to deference
because it is consistent with, and promotes, the remedial safety
purpose of the Act. Further, the petitioner believes that the
fact that the regulation does not explicitly refer to mobile
machinery is irrelevant because such regulations are often
written in a brief and simple manner "in order to be broadly
adaptable to myriad circumstances", Kerr-McGee Corporation,
3 FMSHRC 2128 , 2130 (December 1982) .
The petitioner asserts that in Thompson Brothers Coal Co.,
Inc. , 6 FMSHRC (September 1984), an identical case under the
analogous safety standard found in 30 C.F.R. § 77.400(a), the
Commission considered the question of whether that regulation was
v iolated when the mine operator failed to guard the cooling fan
blades and air compressor belts and pulleys on the engines of two
Euclid R-50 dump trucks. The petitioner asserts that the
Commission set forth the test for proving a violation of
§ 77 . 400(a) , and required that the Secretary, "prove: (1) that
the cited machine part is one specifically listed in the standard
or is 'similar' to those listed; (2) that the part was not
guarded; and (3) that the unguarded part' may be contacted by
persons' and 'may cause injury to persons.'" Thompson Brothers
Coal Co .. Inc., supra at 2096.
The petitioner points out that working with facts
indistinguishable from those in the present cases, the Commission
found that the Secretary had proven all three factors and
affirmed the Administrative Law Judge's finding that a violation
of § 77.400(a) existed, and affirmed findings that the cooling

2087

fan and the air compressor belts and pulleys were "similar moving
machine parts," that these parts were accessible and unguarded
and that contact, however unlikely, with these parts could cause
injury. Therefore, the commission found a "reasonable
possibility of contact and injury."
The petitioner concludes that the Thompson Brothers decision
provides persuasive precedent in support of the citations issued
in the instant cases. Although Thompson Brothers interpreted a
Part 77 regulation, rather than a Part 56 regulation, the
petitioner points out that the language of section 77.400(a), is
virtually identical to the language of section 56.14107(a). The
petitioner further points out that the purpose of the two
regulations is identical in that they are both designed to
protect miners from being injured or killed by contacting the
moving parts of machinery. Finally, the petitioner asserts that
identical fact patterns exist in both cases so that the reasoning
of Thompson Brothers is equally applicable to the facts of the
present cases.
The petitioner asserts that the argument that the Commission
did not consider the question of whether section 77.400(a),
applies to trucks is not persuasive. The petitioner believes
that when the Commission affirmed the judge's decision finding a
violation of section 77.400(a), it implicitly decided that the
regulation required guards over all types of moving machine
parts, whether they were located on stationary equipment or not,
that the only real concern of the Commission was whether the
citation concerned the type of moving machine part listed in the
regulation or other similar exposed moving machine parts, and
t hat the question of whether these parts were located on
s tationary or mobile equipment was not deemed relevant . The
petitioner concludes that the Commission did not explicitly
address the question because it is obvious, given the history and
text of the regulation, together with the above-stated legal
standards for construction and interpretation under the Act,
that moving machine parts of trucks are subject to the
guarding requirements of 30 C. F.R. § 77 . 400(a) and 30 C. F . R.
§ 56 . 14107(a) .
The petitioner states that Inspector Goodale determined that
the guarding requirement of 30 C.F.R. § 56.14017(a), was being
v iolated on three Euclid haul trucks and one front end loader at
the respondent's No. 1 Quarry. He observed that the V-belts on
the engine assemblies of the trucks were not guarded to prevent
contact with p~nch points or moving parts of the engines. The
trucks each had a hood covering the top of the engine and a grill
covering the front of the engine, but the sides of the engine
compartment were open and allowed contact with the moving parts
of the engine. While the inspector realized that it was unlikely
that a person would come in contact with the V-belts of the
engines when the trucks were running, the petitioner believes

2088

that he correctly determined that some potential for an injury
existed and issued the citations in question.
In view of the foregoing arguments, the petitioner believes
that it is entitled to a finding that the guarding requirements
of section 56.l4107(a), apply to the cited mobile machinery in
these cases, and not only to statio~ary equipment, and that as a
matter of law, it is entitled to a summary decision in its favor.
The Respondent's Arguments
The respondent states that like most vehicles, the cited
haul truck engines are guarded by a hood on top and a radiator
grill on the front. Further, the trucks are not large enough for
a person to stand underneath them, and that only a mechanic who
intended to perform maintenance on the truck could access the
engine assembly from underneath. Although there are small gaps
on the sides of the truck engine compartment that are not guarded
by the manufacturer, a person would have to climb over or around
the wheels and the wheel assembly to access the engine
compartment from the side.
With regard to the front-end loader, the respondent states
that the engine assembly is also covered on the top, front, and
back, and partially covered on the sides. To access the engine
compartment from the side, a person would have to climb over or
around the vehicle's wheels, and these areas were not guarded by
the vehicle's manufacturer.
The respondent states that the petitioner has a fundamental
obligation to give mine operators fair warning of the conduct it
p rohibits or requires. Respondent asserts that a regulation must
g ive "a reasonably prudent person notice that it prohibits the
c ited conduct" , Pontiki Coal Coro., 15 FMSHRC 48 (January 1993),
and that "even a broad standard cannot be applied in a manner
that fails to inform a reasonably prudent person that the
condition at issue was prohibited by the standard", Mathies Coal
Co ., 5 FMSHRC 300 (March 1983 ).
The respondent points out that section 56.14107(a) , is found
i n Subpart M of Part 56 , Title 30, Code of Federal Regulations,
entitled "Maintenance and Equipment", and that while some of the
regulations found in this subpart expressly cover mobile
equipment, section 5 6 .14107(a) does not state that it applies to
haul trucks, front end l oaders , or any other form of mobile
equipment. The respondent believes that this omission is
significant because the term "mobile equipment" is expressly
defined in 56.14000, and used in other regulations contained in
Subpart M, including 56.14100, 56.14101, 56.14103 and 56.14132,
while other regulations contained in Subpart M go even further
and specify with particularity the exact types of vehicles which
are covered, e.g., 56.14106 expressly covers only "fork-lift

2089

trucks, front-end loaders and bulldozers"; 56.14131 covers only
"haulage trucks." Section 56.14107(a), provides no such
guidance.
The respondent states that other regulations found in
Subpart Mare clearly not intended to cover vehicles, (56.14109,
conveyors adjacent to travelways; 56.14116, hand held power
tools). The respondent asserts that all of the Commission's
reported cases decided under section 56.14107, reported on
Westlaw, and where the machinery or equipment involved in the
citation is actually identified, involved stationary equipment
(19 case citations omitted).
The respondent asserts that the petitioner's official
comments published in the Federal Regi ster when section 56.14107,
was promulgated in 1988, represent its only statement regarding
the scope and intent of this regulation, and that nothing in
these comments indicates that the petitioner intended the
regulation to cover haul trucks or front end loaders. To the
contrary, respondent believes that the comments establish that
the petitioner intended the regulation to cover, at most,
vehicles which were so large that a person could actually walk
underneath them. The respondent believes that these vehicles
presented "special hazards" because there was a realistic
possibility that someone walking underneath one could
accidentally contact moving machine parts. In contrast, the
respondent asserts that ordinary vehicles were not within the
scope of the rule because the engine hood and vehicle size would,
in most cases, provide adequate protection, and it cites MSHA's
comments as follows at 53 Fed . Reg. 32509 (1988):
I n those situa t i ons , the vehicle size and engine hood
would act t o prevent a c cess and contact with the
exposed moving parts, and no additional guard would be
required. However, larger, off-road vehicles present
special hazards because of the greater accessibility to
their moving machine parts. In some instances, persons
can walk direc tly under the vehicle to inspect the
engi ne and b e exposed to i ts moving parts.
The respondent points out further that MSHA also indicated
i n its comments that it did not expect operators to install new
guards on the large, off-road vehicles which were covered by the
regulation, and operators using these vehicles could rely on
manufacturer-install ed guarding . The respondent cites the
following MSHA comments at 53 Fed. Reg. 32509, in support of its
conclusion:
In most instances, these parts are already guarded by
the manufacturer, but guards are sometimes removed
during repair work and not replaced. MSHA's objective
is to ensure that these guards remain in place.

20 9 0

The respondent believes it is entitled to summary decision
because section 56.14107, does not clearly cover haul trucks or
front end loaders, and nothing in the regulation itself suggests
that it applies to such vehicles or any other form of mobile
equipment. Respondent maintains that Subpart M's title,
"Machinery and Equipment," does not indicate that all of the
regulations in the subpart apply to mobile equipment, and that
many of the regulations in the subpart clearly were not intended
to cover vehicles, while other regulations in the same subpart
specify with particularly that they cover mobile equipment such
as front end loaders and haul trucks. The respondent concludes
that MSHA was required to use the same specificity in
section 56.14107, and as a minimum was required to indicate
if the regulation covered mobile equipment. The respondent
further concludes that in its present form, section 56.14107,
fails to give fair notice that mobile equipment is covered, and
that this is confirmed by the fact that every Commission case
decided under the regulation involves stationary equipment.
Because of the critical ambiguities in the regulation, the
respondent believes that the citations should be vacated.
The respondent argues further that MSHA has stated in the
comments accompanying the regulation that ordinary vehicles, like
the respondent's front end loader or haul trucks, -are adequately
protected by their engine hoods and vehicle size, and that the
regulation applies, at most, only to vehicles which are so large
that a person can walk directly underneath them, thus presenting
"special hazards because of the greater accessibility to their
moving machine parts." 53 Fed. Reg. 32509 (1988). The
respondent concludes that the failure of the petitioner to give
notice that the regulation cove red mobile equipment, either in
t he regulation itsel f , or i n its regulatory c omments , preclude i t
f rom now expanding the scope of the regulation.
The respondent states that MSHA commented that mine
operators may rely on guarding s upplied by vehicle manufacturers ,
and that its chief concern was operator's removing such guards.
Respondent emphasi zes that it has not removed any manufactureri nstalled guarding from the c i ted equipment and that it prope r ly
r eli ed on that guarding.
The respondent c oncludes that the petitioner's reliance on
the Commissions decision in Thompson Bros. Coal Co., supra, is
misplaced. Respondent argues that Thompson Brothers was decided
under section 77.4 00 , and while it bears some similarity to
section 56.14107, the petitioner's official comments when
section 56.14107 was promulgated represent its clearest statement
regarding the scope and definition of that regulation. The
respondent does not believe that the petitioner may use a case
decided under section 77.400 to expand that definition.

209 1

The respondent argues that the principle issue in Thompson
Brothers was whether there was substantial evidence to support
the judge's decision, and that the Commission concluded that the
judge's findings were supported by the evidence, and therefore
affirmed his decision after finding no basis for overturning his
credibility determinations and resolution of conflicting
testimony. The respondent concludes that the decision is
inapposite to the facts presented in the cases at hand.
Findings and Conclusions
The present language of section 56.14017(a), was published
in the Federal Register on August 25, 1988, during MSHA's
rulemaking updating, clarifying, and revising its equipment and
machinery standards, and the final rules became effective on
October 24, 1988. 53 Fed. Reg. 32509 (August 25, 1988).
Respondent is correct in its assertion that MSHA's Federal
Register comments with respect to the promulgation of this
standard appears to be the only statement regarding the scope and
intent of section 56.14107(a), and the petitioner has not cited
any additional MSHA comments or statements in this regard.
The petitioner's assertion that it has consistently
interpreted section 56.14107(a), as covering the moving parts of
mobile equipment is not well taken. MSHA's metal and nonmetal
safety and health Guide to Equipment Guarding, published in 1980,
and covering the requirements of mandatory standards 55, 56, and
57 . 14-1, does not mention mobile equipment or vehicles, and all
of the illustrations and information in that publication with
respect to mechanical guarding is limited to stationary
machinery o
During its consi deration of proposed revisions of its
Part 55 , 56 , and 57 machine guarding standards, MSHA commented
that its equipment Guide was "well received by the mining
community" and MSHA believed that the proposed rules' use of the
concepts set forth in that guide will provide a clearer statement
of the requirements for guarding, 49 Fed. Reg. 8377 (March 6 ,
1984 ) 0 However, as noted, that publication is silent on the
application of MSHA's moving machine parts guarding standards to
mobile equipment or vehicles . As far as I can determine, MSHA's
guide to equipment guarding has not been revised or updated to
make it clear that mobile equipment and vehicles are covered by
the standard. Indeed, if one were to rely on that guide as the
clear definitive word on the intent of the guarding standard in
question, one could reasonably conclude that since it does not
even mention mobile equipment or vehicles, the guarding
requirements covered therein are limited to stationary machinery
such as the types discussed and depicted in that publication, and
not to mobile equipment or vehicles such as the trucks and loader
cited in these cases.

2092

MSHA's current policy guidelines with respect to the
application and interpretation of sections 56/57.14107, do not
even mention mobile equipment or vehicles. Under the
circumstances, MSHA's policy and guide, which are intended to
inform and educate the industry with respect to the application
of the regulatory moving machine parts guarding regulations can
hardly be characterized as providing consistent, longstanding,
and clear interpretations by MSHA that section 56.14107(a), is
intended to apply to the moving parts of mobile equipment or
vehicles.
During the 1988, rulemaking and in response to some industry
comments that guards should provide protection against
inadvertent, careless, or accidental contact but not against
deliberate or purposeful actions, MSHA noted that based on
accident statistics in which person suffered serious or fatal
injuries by moving machine parts, in most instances those persons
were performing deliberate or purposeful work-related actions
with the machinery and that the installation of a guard to
enclose the moving machine parts would have prevented most of the
injuries. MSHA stated that the objective in promulgating
section 56.14107, "is to prevent contact with these machine
parts", and that it applies where the moving machine parts can be
contacted and cause injury. 53 Fed. Reg. 32509 (August 25,
1988).
The respondent's assertion that MSHA stated in its
rulemaking comments that "ordinary vehicles" such as its haul
trucks and front end loader are adequately protected by their
engine hoods and vehicle size and that the regulation applies, at
most , only to vehicles which are so large that a person can
d irectly walk underneath them is inaccurate and taken out of
c ontext o
MSHA's 1988 rulemaking comments with respect to the
application of section 56.14107, made reference to small vehicles
such as vans or pickup trucks and they were made in response to
t a question as to whether section 56.14107 , would require
guarding beyond that provided by the manufacturer for the engine
cooling fan on such vehicle. MSHA responded as follows at
53 Fed. Reg. 32509:
In those situations the Vehicle size and the engine
hood would act to prevent access and contact with the
exposed moving parts, and no additional guard would be
required.
With regard to the application of Section 56.14107, to
"larger, off-road vehicles", MSHA commented as follows at 53 Fed.
Reg. 32509:

2 0 93

* * larger, off-road vehicles present special hazards
because of the greater accessibility to their moving
machine parts. In some instances persons can walk
directly under the vehicle to inspect the engine and be
exposed to its moving parts. In most instances, these
parts are already guarded by the manufacturer but
guards are sometimes removed during repair work and not
replaced. MSHA's objective is to ensure that these
guards remain in place.
The respondent's reliance on MSHA's comments that operators
may rely on guarding supplied by vehicle manufacturers, and that
it did not remove any manufacturer installed guarding from the
cited equipment is irrelevant. The respondent stipulated that
none of the cited machine parts were guarded by the vehicle
manufacturer.
The parties have stipulated that the cited v-belts are part
of the engine assembly of the cited haul trucks and loader, and
although the engine compartments are covered by a hood on the top
and by a radiator grill on the front, they further stipulated
that the side engine compartments facing the tires are partially
open and a gap existed between the engine compartment and the
wheels. None of the gaps in the sides of the engine compartments
were guarded by the vehicle manufacturers. The parties further
stipulated that the open sides of the engine compartments,
together with the gaps between the engine compartments and the
wheels, allowed access to, and contact with the engine
assemblies.
Although the respondent argues that the cited trucks are not
l arge enough for a person to stand underneath them , it has
c onfi rmed that a mechanic who intended to perform maintenance on
t he trucks could access the engine assemblies from underneath,
and that a person could access the engine compartment from the
side, but would have to climb over or around the wheels and the
wheel assembly to access the engine from that location.
With regard to the front-end loader, there is no evidence
that it is large enough to allow someone to access the engine
assembly from under the machine. However, the respondent
confirmed that the engine compartment can be accessed from the
side , and a person could do this by climbing over or around the
vehicle's wheels .
The respondent has cited 19 decided cases concerning
section 56.14107, and points out that all of them involved
stationary equipment. One of the cited cases, Overland Sand &
Gravel Company, 14 FMSHRC 1337, 1346 (August 1992), concerned an
affirmed violation of section 56.14107(a), for an unguarded pinch
point of a v-belt drive and alternator pulley of the main diesel
engine of a sand and gravel dredge. Another cited case, GFD

2094

Construction Company. Incorporated, 15 FMSHRC 223, 230 (February
1993), concerned a violation of section 56.14107(a), for an
unguarded drive shaft of a diesel powered sand dredge pump.
In Highlands County Board of Commissioners, 14 FMSHRC
270, 291 (February 1992), I affirmed a violation of
section 56.14107(a), for an unguarded belt drive on a discharge
pump located on a platform on the water in a pit area.
In affirming the violation, I concluded that the cited pump
belt drive was a moving machine part within the meaning of
section 56.14107(a), and that the obvious intent of the standard
is to prevent contact with a moving part. I also concluded that
even though no one was on the platform while the cited pump was
running, and that it was turned off when maintenance was
performed, these preventive measures only mitigated the gravity
and potential hazards against which the standard is directed, and
could not serve as a defense to the violation.
In Walsenburg Sand & Gravel Company, 11 FMSHRC 2233
(November 1989), commission Judge Cetti affirmed a violation of
the guarding requirements of section 56.14001, which was in
effect at that time and required the guarding of moving machine
parts virtually identical to those required to be_guarded by
section 56.14107(a). In that case, the inspector cited a
caterpillar road grader for an inadequately guarded engine fan
blade. The engine had no side panels, and the inspector
indicated that he would not have issued the citation if the
engine had a side panel because he would have considered this
adequate protection for the fan blade. The mine operator
defended on the ground that the grader was manufactured in 1951
without any side panels , the engine had a shroud semi-covering
around the fan blade that guarded half the blade, and the grader
had operated for 27 years without any accident or injury. Judge
Cetti considered all of this in finding that the exposure to
contact with the motor fan blade was very limited, and he
affirmed the citation as a non-"S&S" violation.
In Thompson Brothers Coal Company, 4 FMSHRC 1763 , 1764
( September 1982), Commission Judge James Broderick specifically
found that the unguarded cooling fan blades and air compressor
belts and pulleys in the engine compartment of two Euclid R-50
dump trucks were moving machine parts similar to those listed in
the cited guarding standard section 77.400(a) , and were
accessible and might be contacted by persons examining or working
on the vehicl es. Judge Broderick stated as follows at 4 FMSHRC
1764:
Respondent attempted to show that it was virtually
impossible for a person not suicidally included to
contact the parts in question while moving. On this
issue, I accept the testimony of the inspector, and

2095

conclude that a person working around the engine or
inspecting it while the engine was running, could
inadvertently come in contact with one of the moving
part~.
Should a person come in contact with one of the
moving parts described above, it might cause an injury
to that person.
The Commission affirmed Judge Broderick's decision at 6
FMSHRC 2094 (September 1984), and it adopted a "likelihood of
contact and injury" test after analyzing the "may cause injury"
language found in surface mining standard section 77.400(a). The
Commission noted that while the operator asserted in its petition
for discretionary review that the machine parts in question were
not the kind to which the standard applied, it did not further
develop this issue in its supporting brief. Thus, it would
appear to me that the question of whether the cited standard
applied to mobile mechanical equipment, including vehicles, and
was not limited to stationary machinery, was not specifically
addressed by the Commission because the parties failed to develop
this question on appeal and not, as suggested by the petitioner,
that it was obvious and not deemed relevant by the Commission.
Although the thrust of the Commission's decision focused on the
likelihood of contact and injury within the meaning of the
challenged regulatory language, the Commission specifically ruled
as follows at 6 FMSHRC 2096-2097:
There is no question that the cooling fan blades and
air compressor belts and pulley were not guarded when
the citations were issued. We also find that these
machine parts were the types of machine parts to which
the standard applies. (Emphasis Added) .
There is no dispute that the engines on these trucks
were physically accessible and that on occasion
mechanics could be called on to examine or work on the
engines while the engines were idling. The judge
specifically credited the testimony of the inspector
t hat a miner checking or worki ng on the engine while
t he engine was running could come into contact with any
of the cited machine parts. Thompson's witnesses all
agreed that contact was possible even though they
regarded it as unlikely. At a minimum, contact could
result from such causes as a sudden movement,
stumbling, or momentary distraction or inattention. We
find no basis for overturning the judge's resolution of
conflicting testimony regarding the possibility of
contact. The judge also found that the possibility of
such contact was "minimal . " 4 FMSHRC at 1765. On the
facts of this case, we construe a "minimal" possibility
of contact to be within the realm of reasonable
possibility. Given the physical accessibility of the
engine compartment, the fact that mechanics could check

2096

and work on running engines, and that contact with the
cited machine parts could occur, we conclude that a
reasonable possibility of contact existed. (Emphasis
Added).
In Thompson Brothers there was credible evidence that
mechanics would occasionally be called on to examine or work on
the truck engines while the engines were idling and that a miner
checking or working on the engine while it was running could come
into contact with any of the cited machine parts. In the instant
case, the parties presented no evidence or information as to
whether or not any maintenance, repairs, or visual inspections
are ever performed in the cited trucks or loader while parked
with the engines running.
I note that section 56.14105, requires that repairs or
maintenance of machinery or equipment be performed only after the
power is off and the equipment in machinery is blocked against
hazardous motion. Section 56.14204, prohibits the manual
lubrication of machinery or equipment while it is in motion where
the application of the lubrication may expose persons to injury.
Section 56.14100 (b), requi res timely correction of equipment and
machinery defects to prevent the creation of a hazard to a
person. Section 56 .14100 (d) requires that self-propelled mobile
equipment with defects that make continued operation hazardous to
persons be taken to of service until the defects are corrected.
The citations issued in these cases were all classified as
non-"S&S" and the inspector noted that there was no hazard
exposure while the machinery was in operation and that an injury
was unlikely . He also found that if an injury did occur, it
coul d reasonably be expe.c ted to be permanently disabling . I
conclude and find that all of these facts go to the question of
gravity and may not serve as a defense to the validi ty of the
violation.
Although Thompson Brothers concerned a viol ation of
section 77 . 400(a) , rather than of section 56.14107 (a ), the
guarding requi rement of both standards are v i rtually identical
and they both apply to surface mining areas. I agree with the
petitioner's arguments that the identical purpose of the two
standards is to protect miners from contacting moving machine
parts , that the Commission and its judges have followed case law
established under analogous standards of Parts 56, 75 or 77 of
Title 30 , Code of Federal Regulati ons, and that the Commission's
Thompson Brothers holding is equally applicable to the facts of
the instant cases.
I conclude and find that following its regulatory Federal
Register comments in connection with the revisions of
section 56.11407(a), MSHA has not done a good job in
updating and revising its publications to make it clear that

2097

section 56.14107(a), applies to mobile equipment such as the
types of trucks and loader cited in these cases. However, I
cannot conclude that MSHA's failure in this regard is so
egregious as to warrant the vacation of the citaeions and the
dismissal of these cases.
I further conclude and find that MSHA's Federal Register
' comments in connection with the aforementioned rulemaking,
coupled with the Commission's decision in the Thompson Brothers
Coal Co. Case, supra, which I find controlling, provided adequate
notice that the guarding requirements of section 56.l4107(a),
apply to mobile machinery such as the trucks and loader cited in
these cases, and not only to stationary equipment. Accordingly,
based on the facts and stipulations presented in these cases, I
conclude and find that the violations have been established, and
the contested citations ARE AFFIRMED.
I further conclude and find that the respondent's No. 1
quarry and plant operations constitute a medium~to-large mining
operation. I have also reviewed all of the citations and
abatements issued by Inspector Goodale and I cc,nclude and find
that the respondent timely abated all of the cited conditions in
good faith.
With respect to Riverton's history of prior violations,
MSHA's counsel produced a computer print-out of the mine
compliance record for the period beginning in October, 1983
through March, 1994. Counsel asserted that the respondent's
history of prior violations does not warrant any penalty
as.sessment increases over those which have been made in these
p roceedings , and upon review of the print-out, I agree.
In the absence of any evidence to the contrary, I conclude
and find that the payment of the penalty assessments agreed to by
the parties in settlement of the violations in question, as well
as the proposed penalty assessments for the four contested
guarding citations , will not adversely affect the respondent's
abil i ty to continue in business.
I further conclude and find that the four contested guarding
v iolations were non-serious and were the result of a moderate
degree of negligence on the part of the respondent .
ORDER
In view of the foregoing findings and conclusions, IT IS
ORDERED AS FOLLOWS:

2098

Docket No. VA 94-53-M
The following Section 1 04(a) citations ARE ~FFIRMED, and the
respondent IS ORDERED to pay the civil penalty assessments shown
below.
Citation No.

Date

4288838
4288839
4288843
4288849
4288711
4288715
4288842

12/ 8/ 93
12/8/93
12/8/93
12/ 8 / 93
12/15/ 93
12/15/93
12/ 8/93

30 C.F.R. section
56.14107(a)
56.14132(a)
56.20003(a)
56.11002
56.20003(a)
56.14107(a)
56.20003(a)

Assessment
$50
$50
$157
$50
$157
$204
$50

Section 104(a) Citation Nos. 428885 3 , 4288846, and 4288708
ARE VACATED, and the petitioner's proposed civil penalty
assessments ARE DENIED and DISMISSED.
Section 1 04(a) Citation Nos. 4288845, 4288714, and 4288844
ARE MODIFIED to non-"S&S" citations, and as modified they ARE
AFFIRMED. The respondent IS ORDERED to pay civil penalty
assessments of fifty-dollars ($50 ) for each of the citations
($150 total).
Docket No. VA 94-55-M
The following secti on 1 04(a) citations ARE AFFIRMED, and
t he respondent IS ORDERED to pay the civil penalty assessments
shown below.
Citation No .
4 28882 4
4 288825
4288826
4288828
4288829
4288830
4288831
4288835
4288836
428884 0
4288841
4288847
4288850
4288851

Date
12/7/ 9 3
12/ 7/93
12/ 7/ 9 3
12/7/93
12/7/93
12/ 7/ 93
12/7/ 9 3
12/7/93
12/ 7/93
12/ 8/ 9 3
12/8/ 9 3
12/8/93
12/ 8/93
12/ 8/ 93

30 C.F.R. Section

Assessment

5 6 . 160 05
56.12 0 13
56.12032
56.14107(a)
56.11001
5 6.120 3 0
5 6 .120 3 0
56.110 01
56.4130(b )
56.14107 (a )
56.12032
56.20003(a}
56.12030
56.2003(a}

$50
$50
$50
$50
$157
$5 0
$50
$157
$50
$50
$50
$204
$50
$50

2099

Section 104(a) citation Nos. 4288823 and 4288834 ARE
VACATED, and the petitioner's proposed civil penalty assessments
ARE DENIED AND DISMISSED.
Section 104(a) "S&S" Citation Nos. 4288832 and 4288852 ARE
MODIFIED to non-"S&S" citations and as modified they ARE
AFFIRMED. The respondent IS ORDERED to pay civil penalties of
fifty-dollars ($50 ) for each of the citations ($100 total).
Citation No. 42888852 IS FURTHER MODIFIED to reflect a violation
of mandatory safety standard 30 C.F.R. § 56.20003(a).
The inspector's negligence finding with respect to section
104(a) non-"s&S" citation No. 4288827, IS MODIFIED to reflect a
low, rather than moderate degree of negligence, and as modified,
IT IS AFFIRMED. The respondent IS ORDERED to pay a civil penalty
assessment of twenty-five dollars ($25) for the violation.
Payment of all of the aforesaid civil penalty assessments in
these proceedings shall be made by the respondent to MSHA within
thirty (30) days of the date of these decisions and Orders, and
upon receipt of payment, these cases are dismissed.

k.cf~
Administrative Law Judge

Distribution :
Glenn Mo Loos , Esq. , Office of the Soli citor , U. S. Department
of Labor , 4015 Wilson Blvd o, Suite 516 , Arlington , VA 22203
( Certi fied Mail )
Dana L. Rust, Esq. , McGuire, Woods, Battle & Boothe, one James
Center , 901 East Cary Street , Richmond , VA 23219-4 030
(Certi fied Mail )
/ ml

2100

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

20006

October 13, 1994

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 90-383
A.C. No. 05-0 0301 -03753

v.
Dutch Creek Mine
MID-CONTINENT RESOURCES
INCORPORATED ,
Respondent

:

.
ORDER TO VACATE
ORDER OF DISMISSAL

Before:

Judge Merl in

This case is before me pursuant to Order of the Commission
dated February 23, 19 94 .
On March 8, 1994, I issued an order vacating ~he order of
dismissal previously entered and rei nstating this case .
Upon a
motion from the Secretary I determined that this matter had
been dismissed in error b ecause the penalty assessment did not
involve excessive history.
The parties were ordered to confer
to determine if this case could be settled.
The Solicitor has filed a motion to vacate the o ne violation
in this case and to withdraw the penalty petition. Upon review
of the Solicitor's motion, I have determined that i t should be
granted.
In light of the foregoing, it i s ORDERED that Citation No.
3410440 be VACATED .
It is further ORDERED that this case be DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Margaret A. Miller, Esq. , Office of the Solicitor, U. S.
Department of Labor, 1999 Broadway, Suite 1600, Denver, co
80202-5716

2101

Edward Mulhall, Jr., Esq . , Delaney & Balcomb, PC, P.
Drawer 790, Glenwood Springs, CO 81602

/gl

2102

o. Box

l'BDBRAL JaD SAPBTY DD JIBAL'l'll JlBVXD COIDllSSXOH
OFFICE OF ADMINISTRATIVE LAW Jll>GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

·ocr 1 4 1994
LAURA D COAL, INC.,
Contestant

v.

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

v.

I.AURA D COAL, INCORPORATED,
Respondent

. CONTEST PROCEEDING
. Docket No. PENN 94-238-R

: Citation No. 3711113;
. 2/11/94

stuf ft Mine
Mine ID #36-07661

.: CIVIL PENALTY PROCEEDING
.
. Docket No. PENN 94-384
. A.C. No. 36-07661-03509
.
.: Stufft Mine
.
DECISIONS

Appearances:

John M. Strawn, Esq., Office of the Solicitor,
U.S . Department of Labor, Philadelphia,
Pennsylvania , for the Respondent/Petitioner ;
Joseph A. Yuhas , Esq. , Barnesboro , Pennsylvania ,
for the Contestant/Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern a Notice of Contest
filed by the Laura D Coal Company pursuant to section lOS(d) of
the Federal Mine Safety and Health Act of 1977, challenging the
legality of a section 104(d) (1) "S&S" citation alleging a
violation of mandatory safety standard 30 C.F.R. § 77.1000. The
civil penalty case concerns a proposed civil penalty assessment
of $1,800, for the alleged violation. A hearing was held in
Somerset, Pennsylvania, and the parties appeared and participated
fully therein.
Issues
The issues presented in these proceedings are whether the
cited conditions or practices constituted a violation of the
cited safety standard; whether the alleged violation was

2103

"significant and substantial"; whether the alleged violation
resulted from an "unwarrantable failure" to comply with the cited
standard; and the appropriate civil penalty to be imposed for the
violation, taking into account the civil penalty criteria found
in section llO(i) of the Act.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of
1977; 30 u.s . c § 301 et seg.

2.

Secti on 104(d), and llO(a ) and (i) of the
Act .

3.

Commission Rules, 29 C. F.R .

§

2700.1 et ~·

Stipulations
The parties stipulated to the following (Tr. 9-11).
1 . The Stufft Mine is owned and operated by Laura D Coal,
Inc., and it is subject to the jurisdiction _of the Act.
2.

The presiding judge has jurisdiction in this matter.

3. The citation in question was properly issued and served
by an authorized representative of the Secretary on an agent
of Laura D Coal, Inc., on the date and at the time and place
stated therein, and may be admitted for the purpose of
establishing i ts issuance .
4. The proposed civil penalty assessment will not affect
Laura D Coal ' s ability to continue in business.
5 . Laura D Coal's , annual coal production for 1993 , was
29 , 632 tons , and the stufft Mine production for that year
was 5 , 834 tons .
6. Laura D Coal, Inc. , was assessed for three citations
during six inspection days in the 24-month period preceding
t he issuance of the citation in issue in this case.
7 . Laura D Coal, Inc . , is a small mine operator with a good
compliance record.

s.

Laura D coal, Inc . , demonstrated ordinary good faith in
obtaining compliance after the issuance of the citation.

9. The parties stipulate to the authenticity of their
exhibits but not to the relevance or truth of the matters
asserted therein.

21 04

piscussion
Section l04(d)(l) "S&S" citation No. 3711113, issued at
10:00 a.m., on February 11, 1994, cites an alleged violation of
30 C.F.R. § 77.1000, and the cited condition or practice states
as follow:
The operator did not establish and follow a ground
control plan for the safe control of all highwalls,
pits and spoil banks of the active coal pit. The
operator's ground control plan calls for all loose
material to be removed for a safe distance from the top
of the highwall and for trees to be cleared for a
distance of 50 feet. The plan also calls for benches
to be provided where unstable conditions exist. This
highwall is about 60 feet high and 300 feet long. The
top 20 to 30 feet of this is unconsolidated material
consisting of large rocks, trees, and old spoil
material. on 2/10/94, this material failed and slid
into the 002 pit. No benches were provided and trees
still exist along the top of the highwall. A review of
the daily exam book indicated that slides had also
occurred on 2/3/94 and 1-26-94. No appropriate action
was taken to prevent more slides.
In support of the alleged violation, the Secretary presented
the testimony of MSHA Inspector Mark Ronan, who testified to the
conditions that he observed, the reasons for issuing the
citation, and his special "S&S" and "unwarrantable failure"
zindings (Tr o 15-114 ) 0
Laura D. Coal Company presented the testimony of its owner ,
James w. Stufft, who testified about the mine ground control plan
and its relationship to the sediment pond that was under
construction at the pit area in question. He also testified
about the materials located on the spoil pile and the work being
performed to remove and control this material. Mr. Stufft
believed that the mine ground control plan did not apply to the
pond in question because the coal that was removed from the pit
was for the purpose of lining the pond with clay pursuant to
State environmental guidelines (Tr . 115-147) 0
The parties agreed to submit posthearing briefs, and without
objection, the Secretary proposed to take the posthearing
deposition of an expert witness, Dr. Kelvin WU, Chief of MSHA's
Mine Waste and Technical Unit, Bruceton MSHA Technology Center,
Pittsburgh, Pennsylvania (Tr. 155-156).

2105

The parties subsequently informed me that they proposed to
settle the civil penalty matter, and in view of the settlement,
the respondent agreed to withdraw its contest. ~he petitioner
submitted a motion pursuant to Commission Rule 31, 29 C.F.R.
§ 2700.31, seeking approval of the proposed settlement.
In
support of the settlement, the petitioner has submitted
information pertaining to the six statutory civil penalty
criteria found in section llO(i) of the Act and a full discussion
and disclosure concerning the facts and circumstances surrounding
the issuance of the citation.
The parties are in agreement that the respondent's
negligence was not as high as initially determined. The
petitioner states that it has no evidence to refute the
respondent's assertion that it was not aware that its ground
control plan applied to the pit in question since it was designed
to serve as a pond. Further, the petitioner cannot rebut the
respondent's evidence that it had taken steps to prevent
employees from working under the highwall when conditions were
unfavorable and that it was in the process of undercutting the
spoil bank to reduce the hazard of falling material. Under the
circumstance, the petitioner agrees that the section 104(d) (1)
"S&S" citation should be reclassified to a section 104(a) "S&S"
citation, and that a reduction of the proposed civil penalty
assessment from $1,800 to $175, is warranted.
I take note of the fact that the record reflects that the
respondent is a small mine operator, has a good compliance
record, and demonstrated good faith in abating the violation.
Conclusion
After careful review and consideration of the pleadings, the
testimony and evidence presented at the hearing, as reflected in
the trial transcript, and the arguments presented in support of
the proposed settlement, I conclude and find that the proposed
settlement disposition is reasonable and in the public interest .
Accordingly , pursuant to 29 C.F.R. § 2700.31 , the motion IS
GRANTED, and the settlement IS APPROVED.
ORDER
I n view of the foregoing, IT IS ORDERED AS FOLLOWS:
l. Section 104(d)(l) "S&S" Citation No. 3711113,
February 11, 1994, citing a violation of 30 C.F.R.
§ 77.1000, IS MODIFIED to a section 104(a) "S&S" citation,
and as modified IT IS AFFIRMED.

2106

2. The respondent IS ORDERED to pay a civil penalty
assessment in the amount of $175, in satisfaction of the
violation in question. Payment is to be made to MSHA within
thirty ( 3 o) days of this decision and order·, and upon
receipt of payment, this matter is dismissed.

4~~

Administrative Law Judge

Distribution:
Joseph A. Yuhas, Esq., 1809 Chestnut Ave., P.O. Box 25,
Barnesboro, PA 15714 (Certified Mail)
John M. Strawn, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480-Gateway Bldg., 3535 Market st.,
Philadelphia, PA
19104 (Certified Mail)
/ ml

2107

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

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 94-155
A. C. No. 46-07678-03548-A
Barbara Lynn No. 4

DAVID REED
Formerly Employed by GOLD
RIVER MINING COMPANY, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.
:

CIVIL PENALTY PROCEEDING
Docket No. WEVA 94-156
A. C. No. 46-07678-03549-A

v.
Barbara Lynn No-. 4
JOHN MILLER
Formerly Employed by GOLD
RIVER MINING COMPANY, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
:
:

v.
DONALD SALTSGAVER
Formerly Employed b y GOLD
RIVER MINING COMPANY , INC .,
Respondent

Docket No . WEVA 94-172
A. C. No . 46-07678-03550-A

.. Barbara Lynn No. 4
:
0

0

.
0

DECISION
Appearances :

'

Edward H. Fitch, IV, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia for Petitioner;
David G. Reed, Beckley, West Virginia and
Donald R. Saltsgaver, Cedar Grove, West Virginia,
Pro Se, for Respondents.

Before:

Judge Hodgdon

2108

These cases are before me on petitions for assessment of
civil penalties filed by the Secretary of Labor against David
Reed, John Miller and David Saltsgaver, all formerly employed by
Gold River Mining company, Inc., pursuant to Sections 105 and 110
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
S § 815 and 820. The petitions allege that each of the named
respondents knowingly authorized, ordered or carried out, as an
agent of Gold River, a violation of Section 75.220, 30 C.F.R.
§ 75.220, of the Secretary's Regulations.
For the reasons set
forth below, I find that the Respondents did not knowingly
violate the regulation.
A hearing was held in these cases on August 3, 1994, in
Summersville, West Virginia. Mine Safety and Health Administration
(MSHA) inspectors Michael S . Hess and Charlie M. Meadows testified
for the Secretary. Herbert McKinney, Martin Copley and
David G. Reed testified on behalf of the Respondents. 1
BACKGROUND

on July 1, 1992, Inspector Hess began a AAA (quarterly)
inspection of Gold River's Barbara Lynn No. 4 Mine. On observing
eleven entries which had loose mud and rock at their faces, he
concluded that Gold River's roof control plan had been violated
and issued Citation No. 3731550 to the company alleging a
violation of Section 75.220 of the Regulations.
(Pet. Ex. 1.)
The citation stated :

John c . Miller failed to appear at the hearing. on
August 5, 1994 , an Order to Show Cause was issued to Mr. Miller
ordering him to show cause why a default decision should not be
issued against him . He responded to the order on August 9. His
response was accepted, and on August 25 an order was issued
sending Mr. Miller a copy of the hearing transcript and offering
the Secretary and him an opportunity to request a further hearing
and submit additional evidence. on September 1, Mr. Miller filed
a letter stating that he did not have any additional evidence to
submit. On September 8, counsel for the Secretary submitted
Petitioner's Exhibit 9, Memorandum of Interview of John Miller on
May 11, 1993. No objection has been made to this exhibit and it
is admitted into evidence.

210 9

The roof control plan was not being complied with
on the 001 section. Mining was performed in 9 entries
within 150 feet of outcrop or highwall without having
supplemental support limiting the roadway width to 16
feet. The outcrop was cut in too [sic], some of this
area was pillared and mud and rock was [sic ] present in
the working faces. cracks was [sic] present along the
pillared area and the roof sounded drummy when tested
in faces .
On July 7 , 1992 , the citation was modified to add :
Management showed reckless disregard for the
health and safety for the miners in that after minin g
in one plac e to the highwall or outcrop and observ ing
mud a nd rock in the face, mining continued. The
opera tor knew that this condition existed then
willfully mined eight other face and two pillar splits
in this area without setting additional roof support.
The approved map shows the highwall line. This
condition is highly likely to cause death because of
the hazardous roof conditions while mining near the
outcrop or highwall without additional roof support
added .
Gold River paid the $3,000.00 civil penalty assessed it for
this violation in MSHA case No . 46-07678-03531 on January 19,
1 99 3 .
(Tr . 17 .)
During May 1 993 , Charlie Meadows , an MSHA Special
I nvestigator c onducted a special investigation to determi n e
whether cases should be brought against Reed, the mine' s
Superintendent/General Foreman, and Saltsgaver and Miller,
section f oremen , under Section llO(c) of the Act , 3 0 u.s . c .
§ 8 20 (c ), f or havi ng knowingly v iolated the regulation .
He
(Tr . 72. )
c oncluded that they should .
FINDINGS OF FACT AND CONCLUSIONS OF LAW

Section llO(c)

of the Act provides, in pertinent part:

Whenever a corporate operator violates a mandatory
health or safety standard . • . any director, officer,
or agent of such corporation who knowingly authorized,
ordered, or carried out such violation • • • shall be
subject to the same civil penalties • • • that may be
imposed upon a person under subsection( ] (a) • • • •

2110

Consequently, to prevail in his cases against the corporate
agents, the Secretary must prove (1) that a violation of a
mandatory health or safety standard occurred, and (2) that the
corporate agents "knowing·l y authorized, ordered, or carried out"
the violation. I conclude that the Secretary has failed to prove
either circumstance.
Violation of a Mandatory Health or Safety Standard
Section 75 .220 (a ) (1), 30 C.F.R. § 75 .220(a) {l), requires
that "[e ] ach mine operator shall develop and follow a roof
control plan, approved by the District Manager • • . • " The roof
control plan for the Barbara Lynn No. 4 Mine, which was in effect
on July 1, 1992, was approved by the district manager on December
19 , 1991. {Pet. Ex. 3.) The plan states that:
[r ] oof bolts shall not be used as the sole means of
roof support when underground workings approach and/or
mini ng is being done within 150 feet of the outcrop or
highwall. Supplemental support shall consi st of at
least one row of posts on 4-foot spacing, maintained up
to the loading machine operator, limiting roadway
widths to 16 feet.
{Pet. Ex. 3 , p. 4 • )
Obviously, to show that the roof control plan was not being
f ollowed with respect to this provision , it must be shown that
mini ng was being done wi thin 150 feet of an outcrop2 or
h ighwall . 3 The evi dence i n this case does not support finding
t hat t h ere was e i ther a highwall or an outcrop within 150 of
where the mining i n question was done.

2

outcrop" is defined as " [ t] he part of a rock
f ormation that appears at the surface of the ground" or " [c)oal
which appears at or near the sur~ace; the intersection of a coal
seam with the surface . " However , "[i]t does not necessarily
imply the visible presentation of the mineral on the surface of
the earth, but includes those deposits that are so near to the
surface a s to be found easily by digging." Bureau of Mines, U.S.
Department of Interior, A Dictionary of Mining, Mineral, and
Related Terms 778 (1968).
An

9
'

3

A "highwall" is "[t]he unexcavated face of exposed
overburden and coal or ore in an opencast mine or the face or
bank on the uphill side of a contour strip mine excavation." Id.
at 543.

2111

The citation modification states that "the approved map
shows the highwall line." However, none of the maps offered into
evidence, (Pet. Ex. s, Resp. Exs. A and E}, show a highwall line.
There is an indication on one of the maps that some areas had
been strip mined, but the areas are not near the location of the
alleged violation. (Resp. Ex. E. )
As is apparent from the citation, the inspector was not
positive as to whether this violation involved a highwall or an
outcrop. He was no more specific in his testimony and never
stated what exactly had been cut into. The closest he came was
to imply that it was a highwall since the area looked reclaimed
rather than natural because of the loose rock, mud and dirt.
(Tr. 22.)
Inspector Meadows clearly believed that a highwall had been
mined into. Thus, he stated "the area to the right side of where
you have entry No. 4, that whole area has been stripped,"
{Tr. 82), "Ray Charles could see that that area had been
stripped," (Tr. 107), and "I've took [sic] pictures of it, too,
David, and the pictures I've got plainly show it'~ been strip
mined" (Tr. 108).
On the other hand, Mr. McKinney, who had been an MSHA
inspector at the time of the violation, but had retired about
four months prior to the hearing, testified (referring to Resp.
Ex. C) that "that area looks like there must have been spoil put
i n there 9 for whatever reason. I couldn't say it had been
stri pped u but there 9 s spoil put in there - - it looks like
91
t here 9 s been spoil put i n there and it was resealed.
o

•

o

( Tr o 1 2 9 0)

Mr. McKinney further testified, on cross examination, as
f ollows :

Do you k now the area around the Barbara Lynn No . 4
Mi ne?

Q.

A.

I 'm well acquainted with it .

Q.

Has that area been strip mined to your knowledge?

A. There's been a lot of mining activities took in
there. There's been several mines faced up there, and
for whatever reason, they didn't make a go of it. And

2112

as far as saying that it had been stripped, I guess the
most disturbance that has taken place around the Barbara
Lynn Mine is when they cut that haulageway through that
mountain up there to get to that preparation plant to make a
shorter haulway to the coal, but as far as knowing that
there's a whole lot of stripping going on up there, I'm not
certain . I'm not a surface inspector, and I had no reason
to be in the areas that was (sic] surfaced [sic] mined.
(Tr. 142.)

Mr. Copley, also a retired MSHA inspector who had been
active at the time of the violation, when asked whether, when he
viewed the faces of the eleven entries, it looked like a highwall
had been run into, responded:
I couldn't tell. It was in the dirt, and I
couldn't say it was a highwall. I don't know if there
was ever a highwall there for sure, because there were
four mines faced up in that area, and when we went in
there to do the initial roof control plans for all four
mines, there was no strip mine activity in there, and I
couldn't tell. There's four mines and a cleaning plant
had been put in there and there was a lot of dirt
disturbed, and I don't know if it was all disturbed for
that, or if there had been strip activity in the area.
I don't know; I never saw it.
(Tr . 1 4 8 .)
This evidence is simply insufficient to establish the
existence of a highwall . There is nothing on the mine maps to
indicate the possibility that a highwall was present; in fact,
there is nothing on the maps to indicate that strip mining
occurred in that area . No one testified that strip mining had
occurred in that area, even though several of the witnesses were
well acquainted with the area. The testimony as to what the area
looked like proves only that the area appeared to have been
reclaimed. Indeed, the strongest inference that can be made from
that evidence is that the area was reclaimed to build the haulage
road . consequently, I conclude that the evidence does not show
that the Respondents mined within 150 feet of a "highwall."
Nor does the evidence establish that they mined within 150
of an "outcrop." All of the maps show an outcrop line, although
i t is clearest on page one of Pet. Ex. 5 and on Resp. Ex. A.
However, the undisputed testimony is that based on this line the
mining was over 150 feet from the outcrop.
(Tr. 157, 173.)

2113

The Secretary's case appears to be based on the assumption
that since dirt, rocks and mud were mined into, the Respondents
had to have mined into either a highwall or an outcrop. There is
no direct evidence which establishes that what was mined into was
an outcrop. There is surmise that perhaps the outcrop line on
the map was improperly marked, but nothing to show that it was.
Furthermore, there is no explanation at all as to why the outcrop
line on the map, which had been shown to be correctly marked up
until the day in question, was suddenly out of place.
In Halfway, Inc., 8 FMSHRC 8 (January 1986) the Commission
affirmed a decision which found that Halfway had violated its
roof control plan by mining within 150 of an outcrop without
supplemental roof support. The inspector determined that a
violation had occurred by examining the mine map which "showed
that mining operations had advanced within 150 of the outcrop"
and then going into the mine and observing that only roo~ bolts
were supporting the roof. Id. at 9.
If the Secretary is not going to rely on the mine map, as he
did in Halfway, to show where the outcrop is, then he must have
some other means of proving where the outcrop is. - This is
particularly true in a situation where his case is based on an
assumption that the mine map is wrong. In this case he has
presented nothing other than the nature of the material cut into.
His supposition that this established an outcrop is entitled to
no more weight than the miners conjecture that what they had
mined into was a "washout." {Tr . 160-61, 176.) In fact, based on
t he testimony about washouts throughout the hearing and the
depiction of washouts on the maps , the Respondents ' evidence is
t he more persuasive . Accordingly, I conclude that the Secretary
has failed to prove that the Respondents mined within 150 of an
outcrop.
The Secretary has not proved that the Respondents mined
within 150 feet of either a outcrop or a highwall. Accordingly ,
i t has not been established that the roof ·control plan was not
f ollowed and that Section 75.220 was violated. Since the
v iolation has not been established, the Respondents cannot be
found to have knowingly authorized, ordered or carried i t out.
Knowingly Authorized, Ordered, or Carried Out
Furthermore, even if the violation had been proved, the
evidence does not support a finding that Reed knowingly ordered
that it be committed or that Saltsgaver and Miller knowingly
carried it out. The Commission set out the test for determining

211 4

whether a corporate agent acted "knowingly" in Kenny Richardson,
3 FMSHRC 8, 16 (January 1981), aff'd, 689 F.2d 623 (6th Cir.
1982), cert. denied, 461 u.s. 928, 103 s.ct. 2088, 77 L.Ed.2d 299
(1983) when it stated:
If a person in a position to protect safety and health
fails to act on the basis of information that gives him
knowledge or reason to know of the existence of a
violative condition, he has acted knowingly and in a
manner contrary to the remedial nature of the statute.
In Roy Glenn, 6 FMSHRC 1583 (July 1984), the commission
expanded the test to cover a situation where the violation does
not exist at the time of the agent's failure to act, but occurs
after the failure. It said:
Accordingly, we hold that a corporate agent in a
position to protect employee safety and health has
acted 'knowingly', in violation of section 110(c) when,
based upon facts available to him, he either knew or
had reason to know that a violative condition or
conduct would occur, but he failed to take appropriate
preventative steps.
Id. at 1586.

The Commission has further explained "that a
'knowing' violation under section llO(c) involves aggravated
conduct, not ordinary negligence." BethEnergy Mines, Inc., 14
FMSHRC 1232, 1245 (August 1992)(citation omitted).
I n this case , the Respondents neither failed to act , nor had
r eason to know that a violation had occurred, or would occur .
Reed testified that he had begun his vacation when he received a
telephone call from Saltsgaver advising him that the miners had
"hit rock" and asking Reed what they should do.
Reed looked at his mine map, determined that the mining was
t aking place more than 150 feet from the outcrop marked on the
map, had Saltsgaver check the certified map in the mine office to
see if anything was marked on it that was not on his map and, on
hearing that there was not, told Saltsgaver to continue mining.
He told Saltsgaver that they did not need to start using posts
because they were "not within the required area." (Tr. 173.)
Reed further instructed Saltsgaver "to consult with his roof
control men and make sure that the bolts were anchoring, that the
area was safe • . • • " (Tr. 157.) Reed also advised him "that
if he seen [sic] any roof or rib failure, to cease mining

2115

immediately."
(Tr. 173.) Reed then called Miller, section
foreman on the shift after Saltsgaver's, prior to the beginning
of his shift, and told him "to continue mining; a~y sign of roof
or rib support failure to cease mining at once; if not, continue
mining till we skirted it all the way around."
(Tr. 173.)
It is clear from this evidence that the Respondents did not
cut eleven entries to the dirt without checking to find out what
was happening. The first time that dirt was hit, Saltsgaver ·
called Reed, advised him what bad happened and asked him how to
proceed. Reed looked at the mine map, came to the not
unreasonable conclusion that they were not within 150 feet of the
outcrop, so that what had been hit must have been a "washout",
and instructed his foremen to keep cutting to the dirt until they
had skirted the area, as had been done when other "washouts" were
encountered.
This is certainly not aggravated conduct. 4 The Respondents
acted under a reasonable, good faith belief that they were
dealing with a "washout."
Wyoming Fuel Company/Basin Resources,
Inc., 16 FMSHRC 1618, 1630 (August 1994). They did not fail to
act when the problem was first encountered. Cf. Prabhu Deshetty,
16 FMSHRC 1046 (May 1994) (Deshetty failed to address an ongoing
problem when he had actual knowledge of it). Moreover, Reed
acted to protect the safety of his men with his instructions to
check the roof support and to cease mining if there was any sign
of roof or rib failure. Cf. Michael W. Brunson, 10 FMSHRC 594,
600 (May 1988) (managerial directions not to use a loader if the
brakes were i nadequate in conjunction with ambiguous knowledge on
the part of the agent did not provide a basis for a knowing
v iolation) .

4

I am somewhat troubled by the indications in Saltsgaver ' s
Memorandum of Interview , (Pet . Ex . 8) , that he knew that they
were supposed to use timbers and so advised Reed, who told him to
keep cutting , and by the statement that Reed told him to cover up
the violation. If true this would be extremely aggravated
conduct. However, I give this evidence no weight because it is
not a direct statement, but rather a summary of the interview by
the investigator and, thus, is hearsay filtered through the
recollection of the investigator; it is not consistent with the
Memoranda of Interview of Reed and Miller, (Pet. Exs. 7 and 9),
and the evidence presented at the hearing, including the fact
that there was no evidence that anything was covered up; and, the
Memorandum itself evidences a bias on Saltsgaver's part against
Reed in that he believed Reed wanted him to quit so that Reed
could hire one of his buddies.

2116

ORDER

I conclude that the evidence does not establish that the
Respondents mined within 150 feet of an outcrop or highwall, and
that, even if it did, it does not prove that they knowingly
ordered or carried out the violation. Accordingly, it is ORDERED
that the petitions for assessment of civil penalty filed against
David Reed, John Miller and Donald Saltsgaver are DISMISSED.

J.~~

T. Todd;~~
Administrative Law Judge

Distribution:
Edward H. Fitch, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd, Suite 400, Arlington, VA 22203
(Certified Mail)
Mr. David Reed, 112 Boganville Avenue, Beckley, WV
(Certified Mail)
Mr. John Miller, P.O. Box 564, Bradley, WV
Mail)

25801

25818 (Certified

Mr . Donald Saltsgaver , P . O. Box 201 , Cedar Groove , WV
( Certif i e d Mail )
/ lbk

211 7

25039

OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SICYLJNE, 10th FLOOR
5203 LEESIURG PIKE
FALLS CHURCH, VIRGINIA 22041

OCT 1 7 1994·

.. DISCRIMINATION PROCEEDING
.
. Docket No. PENN 94-323-DM
.. MSHA
case No. NE MW 94-03
.
.. Kaylor Mine No. 3 36-00033

KENNETH E. VOGT, SR. I

Complainant
v.
BRADYS BEND CORPORATION,
Respondent
ORDER OF

Before:

D:ISM:ISSAL

Judge Melick

Complainant, Kenneth E. Vogt, Sr., requests approval
to withdraw his complaint in the captioned case. Under the
circumstances herein, permission to withdraw is granted.
29 C.F.R. § 2700.11. This case is therefore D:ISKrSSED and
the hearing scheduled for October 18, 1994, is canceled.

Judg~
Distributi on :
~

John J. Morgan, Esq . , 115 s. Washington st., Bu
( Certified Mail )

er, PA 16001

Mark No Savit , Esq ., Thad S o Huffman , Esq. , Jae on and Kelly ,
2401 Pennsylvania Ave. , N.W. , Suite 400 , Washington, D.C. 20037
( Certified Mail )
William Hoganmiller , Miners' Representati ve, c / o Bradys Bend
Corp . , 930 Cass St. , New Castle, PA 16101 (Certified Mail)
\lh

2118

PBDERAL llDIE SAFftY AID> BRAI.'1'11 klSVJBW C'WlflSSIOR
OFFICE OF ADMINISTRATIVE LA~ JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

OCT 1 7 1994.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ON BEHALF OF LINK M. SMITH,
JIM ALTIZER AND GARY RITCHIE,
Complainants

v.

. DISCRIMINATION PROCEEDING
..
.

Docket No. WEVA 93-343-D
No. HOPE CD 92-08

MSHA Case

.... Amonate No. 31 Mine and Prep
..
.

CONSOLIDATION COAL COMPANY,
Respondent

ORDER OF DISMISSAL
Before:

Judge Melick

The Secretary requests approval to withdraw his Complaint
in the captioned ca.s e in reliance upon the Commission's decision
in swift et al v. consolidation Coal Co., 16 FMSHRC 201 (1994).
Under the circumstances herein, permission to wi . aw is
granted. 29 c.F.R. § 2700.111 This case is there ore DISMISSED.

I

i

I

I

i

(\ (\ . .: )V\~

I

Gary M1 1kdJ \/\
Admi ni\tative

I

't..iw Judge

Distribution:
Douglas N.. White 11 Counsel , Trial Litigation , Office of
the Solicitor , U.S . Department of Labor , 4015 Wilson Blvd. ,
Suite 400 , Arlington, VA 22203 (Certified Mail)
Laura E. Beverage, Esq., Jackson and Kelly, 1600 Laidley
Tower 0 P . O. Box 553 , Charleston, WV 25322 (Certified Mail)
Laura Mason Eddy, Regional Counsel, consolidation Coal
Company, 1800 Washington Road, Consol Plaza, Pittsburgh,
PA 15241-1421 (Certified Mail)
Warren R. McGraw, II, General Counsel, District 29, UMWA,
Chilson Avenue at Raleigh Road, P.O. Box 511, Beckley,
WV 25802-0511 (Certified Mail)
/ lh

2119

\,.
'

OFFICE Of ADMINISTRATIVE LA\I JUDGES

Z SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA ZZ041

OCT 1 7 199!
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of RONALD ROSE,
Complainant

v.

CLINCHFIELD COAL COMPANY,
Respondent

. DISCRIMINATION PROCEEDING
. Docket No. VA 93-100-D
. MSHA Case No. NORT CD 92-02
.
McClure No. 2 Mine
:
.

ORDER OF DISMISSAL

Before:

Judge Melick

The Secretary requests approval to withdraw his Complaint
i n the captioned case in reliance upon the Commission's decision
in Swi ft et al v. Consol·dat·on c 1 co , 16 FMSHRC 201 (1994).
Under the circumstances here· , permission to with aw is
granted. 29 C.F.R. § 2700.1 • Thi case is ther ore DISMISSED.
i
I

Di stribut i on :
Edward H. Fitch , Esq. , Office of the Solici tor ,
U.S. Department of Labor , 4015 Wilson Blvd. ,
Sui te 400 , Arlington , VA 22203 (Certified Mail )
Hilary K. Johnson, Esq. , Cli nchfield Coal Co.,
P. O. Box 4000 , Lebanon, VA 24266 (Certified Mail )
/lh

2120

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

OCT 1 7 199{
KENNETH J. GARRETT,
Complainant

DISCRIMINATION PROCEEDING
Docket No. CENT 94 - 61-D
DENV CD 93 -13

v.
BASIN COOPERATIVE SERVICES,
Respondent

Glenharold Mine

DECISION DISMISSING PROCEEDING
Before:

Judqe Manning

In a letter dated October 10, 1994, Kenneth J. Garrett stated
that he no longer wishes to pursue his discrimination complaint
because he has been " fully compensated financially for the day of
work missed (wh en] Basin Cooperative Services sena [him] home for
going on the mine inspect ion ." He further stated that he brought
this case , in part, to resolve certain safety issues on the
mistaken belief that the commission a nd the Department of Labor's
Mine Safety and Health Administration (MSHA) are " linked. "
He
stated that he will pursue these issues directly wi th MSHA.
For good cause shown , this proceeding

~U/L/T~~

Richard W. Manning
Administrative Law Judge

Distribution:
Mr. Kenneth J. Garrett, Box 159, Route 2, Pick City, ND 58545
Deborah Levchak , Esq ., Office of the Gen eral Council, BASIN
ELECTRIC POWER COOP, 1717 East Interstate Avenue, Bismarck,
ND 58501
RWM

2121

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

OCT 1 7 1994
TEMPORARY REINSTATEMENT
PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of WILLIAM C.
YOUNG, JR. I
Complainant

Docket No. WEST 94-390-D
DENV CD 93-17

v.

Caballo Rojo Mine

F&E ERECTION COMPANY,
Respondent
:

DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION. (MSHA) ,
on behalf of WILLIAM C.
YOUNG, JR. I
Complainant

Docket No. WEST 94-430-D
DENV CD 93-1~
Caballo Rojo Mine

v.
F&E ERECTION COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY

Before:

Judqe Cetti

The Stay Order of May 13 , 1994, in Docket No . WEST 94 - 390-D
is lifted .
The above-captioned discrimination and reinstatement proceedings are consolidated for evaluation and disposition.
Both
cases were filed by . the Secretary of Labor on behalf of William
c. Young, Jr. , pursuant to Section lOS(c) (2) of the Federal Mine
Safety and Health Act of 1977, against F&E Erection Company.
The Secretary alleges in the complaints that Mr. Young was
engaged in protected activity under the Mine Act, at the Caballo
Rojo Mine when he was wrongfully discharged on July 2, 1993.
F&E
Erection Company filed a timely answer denying that i t violated
Section 105(c) of the Mine Act.

2122

The parties n ow have reached a settlement resolving all
issues in these cases. Unde r the terms of the settlement agreement, F&E Erection has agreed to pay to Mr. Young five -thousand
dollars ($5,000) for back wages , less a ny reductions required by
law to be withheld for taxes. In addition, F&E Er ection will pay
Mr. Young the sum of fifteen'1:housand dollars ($15,000) for his
damages, including pain a n d suffering and emotional distress .
In consideration of the payment of twenty-thousand dollars
($20 , 000) in back wages and damages, Mr. Young waives his right
to reinstatement and reemployment by F&E Erection and has signed
a general release.
F&E Erection agrees to pay a civil penalty of two-thousand
five hundred dollars ($2500) to the Secretary of Labor to settle
the alleged violation of Section 105(c) of the Act.
I have considered the representations and documentation
submitted in this case, and I conclude that the proffered
settlement is appropriate.
WHEREFORE , the motion for approval of settlement is GRANTED.
Accordingly, Respondent is directed to pay the agreed settlement
amounts to William c. Young, Jr. and to pay a civi~ penalty
in Docket No. WEST 94 -430-D of $2,500 to the Secretary of Labor
within 30 days of this decision. Both above-captioned proceedings, upon full compliance with the terms of t h e approved
s ettlement agreement, are DISMISSED.

c£ [Jt;;

Aug t F . Cetti
Administrative Law J udge
Distribution:

Robert A. Cohen , Esq . , Office of the Solicitor , U.S. Department
of Labor , 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
Mr . James Cheslock , Esq . , JEFFERS, BROOK, KREAGER & GREGG , INC .,
Trinity Plaza II, 745 E. Mulberry, Ninth Floor, San Antonio, TX
78212
Mr. William C . Young, Jr ., Route 4, Box 1 58, Pittsburgh, TX 75686
Office of Special Investigation, MSHA, Coal, U.S. Departmen t
Labor, 4015 Wilson Boulevard, Arlington VA 22203
sh

2 123

of

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-5267/FAX 303-844-5268

OCT 1 7 1994·
CONTEST PROCEEDING

CYPRUS PLATEAU MINING
CORPORATION,
Contestant

Docket No. WEST 92- 371-R
Order No. 3588140; 3/12/92

v.
star Point No. 2
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Mine I.D. 42-00177

CIVIL PENALTY- PROCEEDING

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

Docket No. WEST 92 -485(B)
A.C. No. 42-001 7 1-03633

v.

Star Point No. 2

CYPRUS PLATEAU MINING
CORPORATION ,
Respondent

..

DECISION AFTER REMAND

Before ::

Judge Morris

On August 26 , 1994, the· Commission issued its decision in
the above cases reversing the Judge's conclusions on S&S and
.
unwarrantability . The Commission further remanded the cases for
a recalculation of the civil penalty .
On October 5, 1994, the parties filed a stipulation of
appropriate penalty.
The original proposed penalty for the violation of 30 C.F.R.

S 75.220(a) (1) was $2,600.00 and the parties agreed on remand
that , based on the evidence at the hearing, as well as the penalty criteria set forth in the Act, an appropriate penalty would
be $1,820.00.
212 4

The parties further agree that stipulation agreed to by
Cyprus Plateau does not constitute a waiver of Cyprus Plateau's
right to seek review of the commission's decision in the United
states Court of Appeals when the decision becomes final after the
imposit~on of a penalty.

Discussion
I have reviewed the stipulation and I find that is reasonable and in the public interest. It should be approved.
Accordingly, I enter the following:
ORDER AFTER REMAND
1.

The stipulation is APPROVED.

2o

A civil penalty of $1,820.00 is ASSESSED.

Law Judge

Distribution :

R. Henry Moore , Esq ., BUCHANAN INGERSOLL, 600 Grant Street, 58th
Floor , 600 Grant Street, Pittsburgh, PA 15219-2887 (Certified
Mail)
Margaret A. Miller, Esq. , Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Jerald Feingold, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(Certified Mail)
ek

2125

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

OCT 1 7 1994.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 93-313 - M
A. C. No. 04-05134-05505 ABXN
Docket No. WE ST 93-314-M
A.C. No . 04-0513 4 - 05506 ABXN

v.
JOHN HETER, GEORGE HALUSKA,
GERALD MOULIN, and
ELIEZER GONZALES, employed
by EIU OF CALIFORNIA
Respondents

Docket No . WEST 93-329-M
A.C. No . 04-05134-05504 ABXN
Docket No . WEST 93-458-M
A.C. No . 04 -051 34-05502 ABXN
Specialty Sand Plant
DECISION

Appearances:

Edward H. Fitch, IV, Esq . , Office of the Solicitor,
U.S . Department of Labor, Arlington, Virginia ,
for Petitioner;
John Heter , Saugus , California; George Haluska,
Simi Valley, California; Gerald Moulin, Cyprus,
California; Eliezer Gonzales, Bakersfield,
California, all employees of EIU of California and
all appearing pr o se.

Before :

J udge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA) charged Respondents Heter, Haluska,
Moulin and Gonzales with violating Section llO(c) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~ (the
"Act") .
A hearing commenced in Simi Valley, California on August 30,
1994. After evidence was partial ly heard, the Secretary moved
for the following disposition:
1.
The Secretary moved to withdraw his request for civil
penalties against Respondents Heter and Haluska.
(Tr. 120).
2.
The Secretary has further concluded that there is inadequate evidence to establish that Respondent Moulin knowingly
a uthorized, ordered or carried out a violation of 30 C. F . R.

2126

§ 57.12002 and therefore, the Secretary withdraws the request for
a llO(c) civil penalty as to said Respondent.
(Tr. 123).

3.
After considering the testimony of Respondent Gonzales,
the Secretary has agreed to reduce his proposed civil penalty to
$1,000.00 payable in monthly installments of $100.00 per month
with the first payment due October 20, 1994.
Respondent Gonzales accepted this arrangement.

(Tr.

128) .
4.
The Secretary has concluded that there is adequate
evidence to establish that as an independent contractor the OHM
Corporat ion 1 should be charged by MSHA with a llO(a) corporate
violation of 30 C.F.R. § 57.12002 based on the totality of the
events which transpired. These events are the result of the
joint effort between OHM Corporation personnel and czs Corporation personnel relating to an incorrect electrical installation.
(Tr . 123, 124).
5.
It is further agreed that a civil penalty of $2, 5 00.00
will be assessed in any corporate case brought by MSHA against
OHM Corporation for a violation of 30 C.F.R. § 57~12002 .
(Tr.
12 3 -125).
6.
Additional statements by the parties also involve OHM
Corporation and czs Corporation. Such statements are in the
record of the proceedings.
I have r eviewed the settlement and I find i t is reasonable
a nd in the public interest . The settlement was approved at the
h earing a nd the approval is formalized in this decision.
Accordingly, I enter the following:
ORDER

1.

In re : Secretary v . John Heter, WEST 93-31 3 -M.

The Secretary's motion to withdraw his request for
penalties herein is GRANTED and the case is DISMISSED.
2.

In re: Secretary v . George Haluska, WEST 93 - 3 14-M.

The Secretary 's motion to withdraw his request for
penalties herein is GRANTED and the case is DISMISSED.
OHM Corporation is not a party in the captioned cases but
it designed a 16 KV Electrical Power Distribution System for use in
the Specialty Sand Plant operated by czs corporation (Joint
Stipulation of Facts filed August 30, 1994).

2 127

3.

In re: Secretary v. Gerald Moulin, WEST 93-329-M.

The Secretary's motion to withdraw his ~equest for
penalties herein is GRANTED and the case is DISMISSED.
4.

In re: Secretary v. Eliezer Gonzales, WEST 93-458-M.

The Secretary's motion to reduce the proposed civil
penalty to $1,000.00 is GRANTED.
Accordingly, i t is ORDERED that Respondent Gonzales pay a
penalty of $1,000.00 in accordance with the payment schedule set
forth below:
PAYMENT
October 20, 1994
November 20, 1994
December 20, 1994
January 20, 1995
February 20, 1995
March 20, 1995
April 20, 1995
May 20, 1995
June 20, 1995
July 20, 1995

$100
$100
$100
$100
$100
$100
$100
$10-0
$100
$100

Payments shall be made by certified or cashier's check made
payable to "The U.S. Department of Labor - MSHA," and mailed to
Mine Safety and Health Administration, P.O. Box 360250M, Pittsb urgh , PA 15251-6250 .
Each payment instrument shall include the
relevant docket number , WEST 93-458-M , and the Assessment Control
Number , 04-05134-05502-ABXN . Compliance with this payout scheme
requires Respondent to have his monthly payments deposited in the
U.S. Mail by the dates above listed.
In the event of Respondent Gonzales ' default on any of the
a bove recited installments, the total amount of the proposed
penalties as amended, less any monies paid before Respondent's
default, shall become due and payable and interest shall be
assessed against such remaining unpaid balance at a rate provided
b y 28 u.s.c. § 1961 from the .date of default until the total
amount is paid in full.
Furthermore, Respondent shall be liable
for all court costs, attorney fees, and other expenses reasonably
incurred by the U.S. Department of Labor in pursuing the recovery
of the remaining unpaid balance plus any interest assessed
thereon.

21 28

Upon payment of the agreed settlement in full, Docket No.
WEST 93 - 458-M is DISMISSED.

~
ris

~ive
.

Law Judge

Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Mr. John C. Heter, 13910 Lang Station Road, Saugus, CA 91351
(Certified Mail)
Mr. George Haluska , 3018 San Angelo Avenue, Simi Valley, CA 93063
(Certified Mail)
Mr . Gerald Moulin , OHM Corporation , 5951 Lakeshore Drive ,
Cypress , CA 90630 ( Certified Mail)
Mr . Eliezer Gonzales, 3712 Woodbine Avenue, Bakersfield, CA 93307
P.O. Box 1912, Bakersfield, CA 93303 {Certified Mail)
E.I.U. OF CALIFORNIA , INC ., Ms . Donna Moore , 6950 District
Boul evard , P. O. Box 40878 , Bakersfield, CA 93384
( Certified Mail)

sh

2129

OfFJCE Of ADMJNJSTRATJVE LAW .IUOGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIICE
FALLS CHURCH, VIRGINIA 22041

OCT 1 8 1994.

. CIVIL PENALTY PROCEEDING
.
. Docket No . KENT 94-128
. A.C . No. 15-02363-03639
.
. Justus Mine
..

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

DBCISIOH
Appearances:

Brian W. Dougherty, Esq., Office of the Solicitor,
U.S. Department of Labor , Nashville, Tennessee,
for the Petiti oner;
G. E. Chip Barker, Corporate Counsel, sterns Coal
Company, Bristol , Virginia , for the Respondent .

Before:

Judge Barbour
STATEMENT OF THE CASE

In this proceeding the Secretary of Labor (Secretary), on
behalf of the Mine Safety and Health Administration (MSHA) and
pursuant t o section 105 of the Federal Mine Safety and Health Act
of 1 977 (Mine Act or ActJ u f iled a petition for assessment of a
civ i l penalty agai nst Southfork Coal Company (Southfork ) o The
Secretary alleged that Southfork violated 30 C.F.R. §75.1711-3 ,
a mandatory safety standard promulgated pursuant to the Act.
The Secretary further alleqed that the violation occurred at
Southfork's Justus Mi ne and that the violation was a siqnificant and substanti a l ( S&S ) contribution to a mine safety hazard .
Southfork denied that it v i olated the cited standard.
The matter was heard in Somerset, Kentucky. The parties
presented testimony and documentary evidence, and subsequent to
the hearinq counsels submitted helpful statements of position
and briefs.
STIPULATIONS
The parties stipulated as follows:
1.

Southfork is subject to the jurisdiction of the Act.

2.
southfork and the Justus Mine have an effect on
interstate commerce within the meaning of the Act.

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3.
southfork and the Justus Mine are subject to the
jurisdiction of the Federal Mine Safety and Health Review
Commission and the administrative law judge has the authority
to hear and decide this case.
4.
During 1993 the Justus Mine was in active status
but no coal was produced.
5.
A reasonable penalty will not affect Southfork's
ability to remain in business.
6.
During the two years prior to May 20, 1993,
nine violations of mandatory safety standards were cited
and assessed at the Justus Mine during the course of
four inspection days. (See Tr. 11-12) .

THE ATJ.EGATIONS AND THE TESTIMONY
The alleged violation is described in a citation issued
pursuant to section 104(a) of the Act, 30 C.F . R. § 814(a), and
in conjunction with an imminent danger order of withdrawal issued
pursuant to section 107(a) of the Act, 30 u.s.c. §817(a). The
order asserts that an imminent danger existed in that the doors
of the building housing the main mine fan shaft w~re open and
there was no protection against unauthorized persons entering he
building (Gov. Exh. 4). The citation states:
The doors of the main mine fan shaft [were) wide
open. The amount of time this condition existed
was undetermined, however, it appeared that it had
been some time in that there was no evidence that
anyone had checked the fan shaft in awhile .
( Gov o Exh . 5. ) After the citation was issued it was modified
in order to change the standard the Secretary alleged Southf ork
violated (Gov. Exh. 5). Initially, the inspector charged
Southfork with a violation of the mine methane and dust control
plan . Because of apparent uncertainty regarding the status of
the plan , the inspector, at the direction .of the MSHA conference
officer, modified the citation to alleged a violation of section
75.1711-3 (Gov . Exh. 5; Tr. 65-55).
30 C.F.R.

§

75.1711-3 states:

The openings of all mines not declared by the
operatqr, to be inactive, permanently closed, or
abandoned for less than 90 days shall be adequately
fenced or posted with conspicuous signs prohibiting
the entrance of unauthorized persons.
Peggy Langley, an MSHA inspector, testified she inspected
the Justus Mine l:>etween December 1992 and May 1993 (Tr. 16).

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Specifically, she inspected the mine in December 1992, March
1993 and May 1993 (Tr. 51). There is a fan house on the mine
property. It encloses the opening of the main mine ventilation
shaft.
Langley inspected the fan house on May 20, 1993. At that
time there were persons working at the mine, but the mine was
not producing coal (Tr. 16). Langley testified she had been
inside the fan house previously, but not during an inspection
ahe was conducting. Rather, she went inside when she was training to become an inspector and when she was accompanying another
inspector {Tr . 51).
She stated that in September 1992, the Blue Diamond Coal
Company, a prior operator of the mine, aqreed to take specific
steps in lieu of capping the shaft. The steps were contained
in an amendment to the company's ventilation system and methane
and dust control plan, which stated:
1. Fan building is locked with explosion doors
left cracked open. No smoking siqns are posted.
2. Elevator shaft has grating over opening,
fence around opening and no smoking siqns posted.
3. Both shafts are checked daily for methane
and unsafe conditions. No methane is being detected
at this time. Security people are on the property
24 hours a day (Gov. Exh. 3: Tr. 19-22).
Southf ork took over the mine following the bankruptcy of
~lue Diamond ( Tro 49 )o
I n addition to the mine , i n MSHA's
v i ew 0 Southfork a l so took over Blue Di amond's commitments
with respect to the fan house.
Langley and her supervisor went to the mine on the morning
o f May 20 0 1993 , and parked their automobile at the gate to the
p roperty o The gate ( a tube-type gate ) was locked, but Langley
and the supervisor walked around it (Tr. 27). There was no fence
surrounding the property . When she was asked whether a chain
l ink fence would have kept unauthorized persons off the property,
Langley stated that , although it would have made it more difficult for persons to get in, she did not know "if they could ever
keep anybody out if they wanted in bad enough" (Tr. 83). To her
knowledge the adequacy of the gate had never been questioned by
llSBA (Tr. 84). Langley could not recall if any siqns were posted at the
qate. However, she stated there might have been a no trespassing
aiqn (Tr. 27, 56-57). About 200 yards down the road Langley
noticed that all of the windows at the mine off ice were broken
(Tr. 27, 57).
(No one was in the office (Tr. 36.)) Langley

2132

and her supervisor then proceeded to the rock dust hole where
Langley sampled for methane and oxygen. Finally, the two walked
to the building housing the main mine fan (Tr. 27).
Langley noticed that the outer and inner doors of the
building were open. A padlock was hanging on one the doors.
It had been pried loose, and where it had been pried, the metal
had rusted (Tr. 28-29). As she stated, "it wasn't like a new
•kimp place" (Tr. 58). Although Langley believed that there
may have been a "no smoking" sign posted on the door, she could
not recall a sign wa~ing of the dangers of the shaft or a no
trespassing sign (Tr. 29, 40). She stated, "That's not to say
they weren't there, but I don't recall them" (Tr. 52-53). During
the course of the inspection Langley did not see any watchmen or
security guards (Tr. 35).
Langley and her supervisor walked into the fan house and
observed the open shaft. The shaft was located about 10 feet
from the doors. Because it was dark in the building, Langley
could only see a few feet into the shaft. However, from looking at the mine map she understood the shaft was approximately
650 feet deep (Tr. 29-30, 32-34). A handrail blocked access
to the shaft (Joint Exh. 7). Langley believed a person who
wanted to get to the edge of the shaft could crawl under, over
or through the handrail (Tr. 30). However, she agreed that as
far as she knew the hand rails never had been found inadequate
by MSHA (Tr. 52).
on the floor of fan house Langley observed 20 to 30 cigarette butts, which indicated to her that people had been in
the fan house (Tr. 32-33). Langley tested for methane and
f ound none . Stillu this was the same fan holise where, in 1989 ,
t wo teenagers had entered and received third degree burns caused
lby a methane ignition ( Tr . 38 ).
Langley believed that the open doors failed to keep
unauthorized persons out of the fan building and away from
the open ventilation shaft. She feared "children, teenagers
or even adults ooo that might be adventurers" would enter the
f an house and encounter the dangers presented by the open shaft
( Tr . 39, see also 40, 55). Those dangers consisted of falling
i nto the shaft or being. burned by ignited methane.
She believed a fall into the shaft was the most likely
thing to happen (Tr. 42). Because only 10 to 15 feet of the
•haft were visible, anyone venturing near the shaft would not
Jcnow how deep it really was (Tr. 39, 44). She also believed it
•reasonably likely that serious physical harm or death could
occur from a fall of 650 feet." ~
Langley understood unauthorized persons came on -.ine
property because she spoke with people who lived near the mine

2133

and they told her people traveled the property to get to a
pond (Tr. 40). The information about the pond was confirmed
when Langley inquired at a business off ice located near the
house (Tr. 42). She also noted a house located approxbaately a
quarter of a mile from the fan house that had small children's
toya in the yard (Tr. 41).
After finding the open door at the fan house, .Langley
and her supervisor returned to their car and drove to the mine
office. When she arrived at the office the only person present
was Sam Blankenship, Soutbfork's manager of operations, who did
not realize there had been possible vandalism on the property
(Tr. 42-43, 45). This, coupled with the fact there were no tire
tracks on the road leading to the fan house, caused Langley to
conclude the company had not been checking the fan house as it
should (Tr. 59). Langley asked Blankenship if he had any records
of when the fan house had been checked and he did not (Tr. 63).
Because of a prior accident when two teenagers who entered
the fan house without authorization were burned, Southfork
management should have realized that heightened surveillance of
the fan house was needed. Indeed, as Langley noted, one of the
provisions to which Blue Diamond and southfork a~eed to in lieu
of capping the shaft was to provide around-the-clock security
(Tr. 42-43). If security personnel had been at the mine, they
might not have prevented a person or persons from prying the lock
open, but they would have quickly observed the open doors and
relocked them (Tr. 43). In Langley's opinion, 24 hour security
meant that the company would check the fan house at least once
an hour, or as often as required to take care of any problems
( Tr o 62 u 76 )o

After being cited for the condition , Southfork bolted the
doors shut ( Tr. 44 )o
Blankenship testified for Southfork. Be stated that in
August 1992 , Blue Diamond Coal Company sold the property on
which the mine -:is located to Stearns Coal Company and that
Southfork operated the mine under a contract with Stearns
( Tr. 68). The property consists of 27,000 acres. There
are parts of the property where people live and Blankenship
described the property by saying that •parts of it [are]
populated and parts of it (are] remote" (Tr. 70) .
There are eight areas on the property that are checked
by •ecurity personnel. They include the operation facility,
tbe pond, the slag dumps, the three office buildings, and the
water tank (Tr. 70, 77). Company Employees are praaent on the
property 24 hours a day (Tr. 70, 75). Security personnel check
tbe eight areas for 11 hours during the day. ~

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"No trespassing signs" are posted throughout the property.
They are posted at all entrances to the property . There is a
qate that stays locked on the road leading to the fan house.
In addition, there is a no trespassing sign posted at the gate
(Tr. 71). Unless a person has a key to the gate, he or she
11USt walk to the fan house, and there is another no trespassing
aign along the road on the way to the fan house. The signs are
of the standard "store bought" variety (Tr. 78).
The fan house is three-tenths of a mile from the gate. The
closest houses to the fan house are located one half mile away
(Tr. 72). The fan house completely encloses the fan shaft. The
door is locked and there is no way to get into the house without
breaking in (Tr. 72). On May 20, 1993, there was a no trespassing sign, a no smoking sign and a danger sign on the fan house
(Tr. 72-73, 79). The trespassing sign was posted on the same
side of the fan house as the doors (Tr. 80).
After receiving Langley's report that the fan house had
been broken into, Southfork bolted the doors to the frame of
the house. rt would have required a hack saw and torch to cut
off the bolts (Tr . 74). (In addition, and subsequent to the
abatement of the alleged violation, the shaft was capped with
concrete (~) ) •
Blankenship stated that the ignition at the fan house that
involved the teenagers occurred when Blue Diamond owned the
property and that he had no knowledge of the accident until
Langley advise him of it (Tr . 75). Further, he had no knowledge
of any current methane dangers at the fan house (Tr . 75-76).

THE VIOLATION
To determi ne whether the Secretary has proven the existence
of the violation, it is first necessary to determine what the
standard requires. on its face the standard seems clear, the
operator must adequately fence or post with conspicuous signs
prohibiting the- entrance of unauthorized person into the openings
of mines not declared permanently closed or abandoned for less
than 90 days. Here, there is no question but that the mine
was not declared permanently closed or abandoned for less an
90 days. Nor is there any question about the ventilation shaft
being an opening of the mine. Thus, the shaft had to be
"adequately fenced or posted."
The determinative question is what is meant by the phrase
•adequately fenced or posted" and specifically what is meant by
the word "or"? In coJllJllon parlance, and as used normally, the
word "or" connotes disjunction. However, this general rule of
construction must yield, when a disjunctive reading frustrates a

2135

clear statement of legislative intent. See ~ v. &meatbers,
884 F.2d 363, 364 (8th cir. 1989). In such a situation, "or" is
read as meaning "and". Wiggins y. Secretary of DHHS, 17 Cl. Ct.
551,557 (1989).
Section 75.1711 restates section 317(k) of the Act,
877(k). The section gives authority to the
Secretary to prescribe how an operator shall seal the openings
of inactive or abandoned mines and how an operator shall protect
the openings of other mines. Section 317(k) was carried over
unchanged from the Federal Coal Mine Safety and Health Act of
1969. In prescribing how the sealing and protection of mine
openings was to be accomplished, the Secretary of the Interior
promulgated, without comment, subsections 75.1711-1 through
75.1711-3. 35 Fed. Reg. 17890, 17926 (November 29, 1970).
The subsections have not been revised since promulgation.
30 u.s.c. §

Initially, the secretary of the Interior's instructions to
his inspectors regarding how to interpret section 75.1711-3
indicated that in the Secretary's view "or" meant "and" and that
both fencing and the posting of signs were required. The 1971
edition of the inspection manual of the Mining Enforcement and
Safety Administration (MSHA's predecessor) stated:
Isolated openings, such as intake or return
airways in remote areas shall be fenced, and conspicuous signs prohibiting entrance of unauthorized
persons shall be posted at all mine openings.
U.S. Dept. of Interior Bureau of Mines Coal Mine Safety
I nspection Manual for Underground Mines 97 (December 1971 )
( "Coal Manual 11 )o This same wording was carried forward
i nto the 1972 u 1973 and 1974 editions. Coal Manual (September
1972 ); Coal Manual (August 1973); Coal Manual (June 1974).
However, the instruction was dropped after the Mine Act
took effect. The Secretary of Labor's first version of the
manual simply restated verbum section 75.1711-3 , thus eliminating
the "and" when referencing fencing. U.S. Dept. of Labor Mine
Safety and Health Administration Coal Mine Health & Safety
Inspection Manual for Underground Coal Mines II-633 (March 9,
1978) ("Manual") . In his most recent version of the Manual,
the Secretary has deleted all reverence to section 75.1711-3
and does not offer any guidance to his inspectors. V Manual 141.
The above history of promulgation and interpretation
hardly provides that clear statement of intent necessary to
override the common meaning of "or." As has been noted, in
prollUl.gating the regulation, the Secretary of the Interior
provided not one clue that the regulation was couched in terms
other than those in which it normally would be understood -that is, in terms of disjunctive choice. While the secretary

2136

of the Interior's initial interpretation of section 75.1711-3
indicated the Secretary envisioned the operator as required to
provide both fencing and siqns to safeguard mine openings, the
deletion of this interpretation, its replacement with the
regulation and the regulation's subsequent deletion •uggest to
118 that either the Secretary of Labor intends the usual disjunctive meaning to apply or that the Secretary is uncertain how
the standard should be interpreted. In any event, I am compelled
by the general rule of statutory and regulatory interpretation to
find that the commonly understood meaning of the words applies,
that is to say, that an operator must either fence .Q1:. post with
conspicuous siqns the openings of mines that are not inactive,
permanently closed or abandoned for less than 90 days.
Southfork did not meet the first of these requirements.
The verb "to fence" is defined as "to keep in or out with or as
if with a fence." Webster's Third New International Dictionary
837 (1986). No fence was present around the opening to keep
unauthorized persons out. The gate at the entrance to the
property did not bar access by pedestrians, as the Langley's
inspection proved . Moreover, even if the fan house itself was
an instrument of fencing in that it could keep out unauthorized
persons "as if with a fence," it was inadequate for that purpose
because the lock was broken and the doors were open .
Thus, the opening was not fenced as required by the
standard. However, the Secretary also must establish that
conspicuous siqns prohibiting the entrance of unauthorized
persons were not posted and this he has not done. Langley
could not recall if a no trespassing sign was posted at or near
the gate , although she acknowledged one might have been present
( Tr o 27 0 5 6-57 ) 0 Blankenship, on the other hand , was certain
a no trespassing siqn was posted at the gate (Tr. 71 ). In
addition , Blankenship stated there was a no trespassing sign
along the roadway leading to the fan house (Tr. 78).
Langley also was uncertain whether there were no trespassing signs in or around the fan building. "[N]o trespassing
siqns[ ,] I don't recall. That's not to say they weren't there ,
but I don't recall them" (Tr. 52-53). Blankenship had no such
doubts. He stated that a no trespassing sign was located on the
same side of the fan house as the· doors (Tr . 80). Despite the
fact that Blankenship was unable to point out the siqn on the
photograph of the back side of the fan house (Joint Exh. 2), I
credit Blankenship's testimony that the sign was in place as he
testified. His certainty outweighs Langley's uncertainty and his
explanation that "You couldn't see the siqn with this picture."
[referring to Joint Exh. 2] was not challenged (Tr. 81).
I therefore conclude that by posting the signs, especially
the siqn on the fan house itself, Southfork complied with
section 75.1711-3. Accordingly,the citation must be vacated.

2137

In reaching this conclusion I am mindful of the Secretary's
argument that "the purpose of the ••• regulation is to protect
the public from the dangers of open mines by requlring operators
to take adequate measures to prohibit entry into such dangerous
areas" and consequently that section 75.1711-3 "should be interpreted broadly" (Sec. Br. 7). However, in light of both the
Secretary's choice of wording of the standard and the Secretary's
history of interpretation, I can, in all fairness, reach no other
conclusion than that the words of the standard mean exactly what
they say. If this is not the case and the Secretary wants the
standard to mean that openings should be adequately fenced and
posted, the Secretary should revisit the standard.
Final ly, this result implies no criticism of Langley.
In the face of conditions that clearly were dangerous, she
took immediate action by issuing an imminent danger order of
withdrawal. (The validity of the order is not before me in
that Southfork did not seek its timely review.) While it is
true the conditions did not constitute a violation of the
standard that MSHA ultimately determined she should cite, it
is equally true that she did not promulgate the standard.
QRDER
Citation No . 4042811 is VACATED. The Secretary's petition
is DENIED and this matter is DISMISSED.

J)(A//~d$~~

David Barbour
Admi n i strative Law Judge

Distribution:
Sr i an Wo Dougherty u Esq . u Office of the Solici tor ,

u.s . Department of Labor, 2002 Richard Jones Road,

Suite B-201 , Nashville , TN 37215-2862 (Certified Mail)

G.E. Chip Barker , corporate Counsel, Stearns Coal company ,
2680 Lee Highway, Bristol, VA 42201 {Certified Mail)
/lb

2138

FEDERAL XDIB SAFETY llD mLTH R.BV:tEW COIOllSS:IOH
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-5267/FAX 303- 844-5268

..OCT 1 9 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No . WEST 93-184-M
A.C. No . 04-04619-05522-A
Docket No . WEST 93-200-M
A.C. No. 04-04619-05523-A

JOHN KEMP & BRAD NICOLAY,
employed by AMERICAN RIVER
AGGREGATES,
Respondents

American Aggregates Mine

DECIS I ON

Appearances :

J. Phillip Smith, Esq., Office of the Solicitor,
U.S. Depart ment of Labor, Denver, Colorado,
for Petitioner;
Dana P. Matthews, Esq., DELANEY & BALCOMB, P.C .
Glenwood Springs, Colorado,
for Respondent .

Before :

J udge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges Respondents with violating
Section llO(c) of the Federal Mine Safety and Health Act of 1977 ,
30 u.sc. § 801, et~ (the "Act" ) .
Respondents Kemp and Nicolay were the two top management
officials at the mine and the i n dividuals who gave work instructions and orders to the miners .
(Tr. 22-23).
Section llO(c) of the Act provides as follows :
Whenever a corporate operator violates a mandatory health or safety standard or knowingly
violates or fails or refuses to comply with
any order issued under this Act or any order
incorporated in a final decision issued under
this Act, except an order i n corporated in a
decision issu ed under subsection (a) or section lOS(c), any director, officer , or agent
of such corporation who knowingly authorized,
2139

ordered, or carried out such violation, failure, or refusal shall be subject to the same
civil penalties, f ines, and imprisonment that
may be imposed upon a person under subsections (a) and (d).
The commission d e fined the term "knowingly," as used in
llO(c) of the Mine Act, as follows:
"Knowingly" as used in the Act, does not have
any meaning of bad faith or evil purpose or
criminal intent.
Its meaning is rather that
used in contract law, where it means "knowing
or having reason to know." A person has r ea son to know whe n he has such information a s
could lead a person exercising reasonable
care to acquire knowledge of the fact in
question or to infer its existence • . . . We
believe this interpretation is consistent
with both the s tatutory language and the remedial intent of the Coal Act. If a person
in a position to protect employee safety and
health fai l s to act on the basis of information that gives him knowledge or reason to
know of the existence of a violative condition, he has acted knowingly and in a manner
contrary to the remedial nature of the statute. Kenny Richardson v. Secretary of Labor,
3 FMSHRC 8, 16 (1981) 689 F.2d 632 (6th Cir.
1982 ) , c ert . d e nie d, 461 U. S . 928 (1983) .
In t he i nstant case, Respondents were charged with v iolati ng 30 C.F.R. § 56 . 1 410 1(a ) (1) . The section in its e ntirety
provides as follows :
(a) Minimum requirements.
(1 )
Selfp ropelled mobile equipment shall b e equipped
with a servi ce brake system capable of stopping and holding the equipment with its typical load on the maximum grade it travels .
This standard does . not apply to equipment
which is not originally equipped with brakes
unless the manner in which the equipment is
being operated requires the use of brakes for
safe operation. This standard does not apply
to rail equipment.
(2)
If equipped on self-propelled mobile
equipment, parking brakes shall be capable of
holding the equipment with its typical load
on the maximum grade it travels.
(3)
All braking systems installed on the
equipment shall be maintained in functional
condition.

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· (b)
Testing.
(1) Service brake tests
shall be conducted when an MSHA inspector has
reasonable cause to believe that the service
brake system does not function as required,
. unless the mine operator removes the equipment from service from the appropriate
repair;
(2)
The performance of the service brakes
shall be evaluated according to Table M-1.
BACKGROUND

The American River Aggregates Mine is a sand and gravel
operation located in Folsom, Sacramento County, California,
operated by American Rive r Aggregates, empl oying 22 miners.
Respondent John Kemp is the mine manager, president, and 2 5
percent owner of the company.
Respondent Brad Nicolay is plant foreman at the mine. At
the hearing, i t was stipulated that American River Aggregates is
a corporation and that each of the Respondents is an agent of the
corporate mine operator within the meaning and scope of Section
llO(c) of the Mine Act.
Further, the Commission lfas jurisdiction
over these proceedings, in that the products of the mine affect
interstate commerce.
(Tr. 5 ).
On October 24, 1991, MSHA Inspector Michael Brooks issued a
Section 197(a) Order, No. 3911980 to American River Aggregates,
citing a violation of 3 0 C.F.R. § 56.1410l(a) (1) .
The o rder stated as f ollows :
The front-end loader that feeds the main
plant did not have service brakes capable of
stopping and holding the equipment. The operator would put the loader into gear the opposite direction it was traveling to stop the
loader . The loader was working on ground
with a slight grade. The operator has been
reporting this hazard since July 10, 1991,
according to company records. There was
mobile traffic moving in the area where the
front-end loader was working. These vehicles
included commercial trucks and company
trucks. With the brakes in this condition,
an injury is highly likely to happen and the
results are likely to be fatal to the operator or someone who may be in the path of the
loader unable to stop. Cat 988 front-end
loader Company #Ll.

2141

The Caterpillar 988, Company L1, front-end loade r, involved
in this case, weighs approximately so,ooo or 60,000 pounds .
(Tr. 63) •
DISCUSSION AND FURTHER FINDINGS

During his inspection on October 24, 1991, Inspector Brooks
observed the loader being operated on a slight grade, backing and
going into gear quickly in both directio ns. Mobile truck traff ic
was moving in the area where the loader was operating.
(Tr. 12;
Ex. P-2). The Inspector approached the loader ope rator a nd asked
him how h e was stopping the vehicle. His a nswer was, "By putting
the machine in gear of the opposite direc tion it was travel ing
be cause it has no brakes." (Tr . 19).
The loader normally traveled to the dump site over a gra de,
going up the grade to the top of the pad, and then back down the
grade to leave the pad. There was usually truck traffic
involving the haul trucks.
(Tr. 55, 60-61) .
Inspector Brooks asked the loa der operator to drive the
l oader off the hill and to apply the service brakes on the grade.
As the operator did this, the service brakes did not hol d the
loader. At this point, Inspector Brooks shut the loader d own.
(Tr. 66, 68, 7 0-71).
Persuasive evidence of defect i ve brakes is the company's
daily equipment checklist (Ex. P-3 ) involving 50 inspections
b etween August 1, 1991, and October 22, 1991 . The inspe ctio n
f orms indi cated there were e ssentially "no brakes" on the loader
a n d t h e ma chi n e was described a s being uns afe t o operate .
In s upport of their position, Respondents argue that the
loader must travel on a grade in order to fall within the prohibition of the regulation. Mr. Nicolay testified the loader was
r outinely operated o n "flat ground" and it c ould be stopped b y
using the gears or lowering the bucket .
(Tr . 33, 61 ). Theref ore Respondents contend no violation occurred.
I am not persuaded by these arguments. As a threshold matt er , Inspector Brooks indicated in MSHA's order that the "loader
was working on ground with a slight grade." (Ex. P-2). In a ny
event, the violation here is the failure to have the loader
equipped with a "service brake system capable of stopping and
holding the equipment." [Section 56.1410(a) (1)). The typi cal
load on the maximum grade it travels is merely a measure of the
efficiency of the braking system. The use of the transmission or
the bucket to stop mobile equipment, instead of using service
brakes, has been rejected by the Commission in numerous cases,
including: Evansville Materials, Inc., 2 FMSHRC 2321, 2326 (Aug.
198 0); Mineral Exploration, 6 FMSHRC 316, 321 (Feb. 1984); Brown
Brothers Sand Co., 9 FMSHRC 636, 656-657 (March 1987); Missouri

2142

Rock, Inc., io FMSHRC 583, 587 (April 1988), aff'd, 11 FMSHRC 136
(Feb. 1989); Brown Brothers Sand Co., 14 FMSHRC 1.90, 199 (Jan.
1992); Missouri Rock, Inc., 16 FMSHRC 624, 629 (March 1994); and
Morris Sand and Gravel, 16 FMSHRC 770, 779 (April 1994).
In Robert Shick, 14 FMSHRC 340, 341 (February 1992) Administrative Law Judge William Fauver stated that "Dropping the bucket
to try to stop a front-end loader is not a safe practice."
Respondents further argue the front-end loader could be
stopped well within the guidelines mandated by Table M-1 because
i t would be pushing a 12- to 20-ton load.
(Tr. 64). Mr. Nicolay
stated that the reversal of gears was in reality a faster method
of stopping the loader than using service brakes.
(Tr. 65).
These views are a re-argument of service brakes versus
transmission or bucket as a stopping method.
These arguments are
again rejected.
Further, 30 C.F.R. § 56.14101(2) particularly
states:
"The performance of the service brakes shall be
evaluated according to Table M-1."
Respondents further contend there was no danger to vehicles
or individuals by operating the loader in the manner in which it
was routinely operated at the time the order was issued.
In connection with this argument, Respondents overlooked the
testimony of Inspector Brooks that the condition cited involved
imminent danger.
It was his opinion, if this condition continued
to exist, it was highly likely that a fatal injury could occur.
(Tr. 14) .
I am persuaded by Mr. Brooks' opinion .
Liability of Agents Kemp and Nicolay under Section llO(c)
During his inspection at the mine on October 24, 1991,
Inspector Brooks was accompanied by Respondent Brad Nicolay.
{Tr. 1 9) .
Before citing the subject violation, Inspector Brooks
a sked Mr . Nicolay if he knew about the brakes being bad on the
l oader before his (Brooks') inspection. Mr. Nicolay admitted
that he knew that the brakes were bad.
(Tr. 20-22, 37) .
Later on, in his signed ·interview statement dated May 5,
1992 , given to MSHA Special Investigator Michael Turner (Ex.
P-4) , Respondent Nicolay admitted that he had reviewed the Daily
Equipment Checklist on the subject loader (Ex. P-3) prior to
October 24, 1991. He also admitted that he knew that the loader
needed brakes and that they needed to take care of the problem.
{Tr. 34; Ex. 4, pp. 5-6)
When asked when he was first aware of the condition cited in
the imminent danger order, Mr. Nicolay replied this occurred
about September 24, 1991.
(Ex. P-4, p. 7; Tr. 35).

21 43

The evidence indicating Respondent Kemp's knowledge of the
defective brakes was established in a slightly different manner.
In Mr. Nicolay's statement to MSHA's investigator he stated
that Mr. Kemp was aware the brakes were bad and that he (Nicolay)
told Kemp that at least once. Although it was known to h im, he
(Kemp) did not think the brakes were an imminent danger and they
could wait another month.
(Tr. 35-36; Ex. P-4, p. 8).
Later on, in MSHA's interview statement, Mr. Nicolay was
asked the name of the individuals who knew of the conditions described in the imminent danger order, and he responded:
"Myself
(Nicolay) , Mark Bradley (mechanic), John Kemp, and Howard Ahner
(the loader operator)" and that "he (Nicolay) had reported the
defective brakes to Kemp. 11
(Tr . 38 ; Ex. P-4, p. 11).
Mr. Kemp testified in these proceedings. He denied having
been told by Mr. Ahner (equipment operator) that the brakes were
defective. However, no evidence was offered (nor sought in
cross-examination) as to what other knowledge he had acquired as
to the condition of the brakes.
The direct testimony of Mr. Nicolay establishes that
Mr. King was also aware of the defective brakes.
corporate Liability
The parties stipulated that American River Aggregates, the
corporate mine operator, did not contest the imminent dange r
order or the violation cited .
Further , on April 27 , 1992, it
p aid a civil penalty for the underlying violation of 30 C.F.R .
§ 56 . 14101(a)(l), pursuant to Section llO(a) of the Mine Act,
3 0 u. s . c . § 820(a) .
(Tr. 39 -40} .
Abatement
The Section 107(a) Order citing the operator for a violation
of 30 C.F.R . § 56.14101(a)(l), was abated when the company rep aired the service brakes on the loa~er so they would hold the
loader with a typical loaded bucket on the maximum grade it
travels.
(Tr . 44-45; Ex. P-2} .
It took about 32 hours for two
men to repair the brakes .
{Tr. 36).
Based on the record, I conclude the Section llO(c) cases
against Respondents John Kemp and Brad Nicolay should be affirmed
and civil penalties should be assessed.
civil Penalties
The penalties in agent cases can be imposed upon a corporate
agent under subsection (a) and (d) of Section 110 of the Act.
Further, the Commission shall have the authority to assess all

2144

civil penalties under the Act. Section llO(i) set forth the
statutory criteria in assessing any penalties.
In the instal)t cases, there is no adverse history of previous violations. Further, the penalty assessed herein is appropriate and will not affect the agent's ability to continue in
business. In addition, I agree with Inspector Brooks that the
agents were negligent. Further, the gravity of the violation was
serious. Finally; the agents demonstrated good faith in attempt- -·
ing to achieve rapid compliance after notification of the violative condition.
For the abov.e reasons, I enter the following:
ORDER

1.
In re West 93-184-M: Secretary of Labor v. John Kemp,
employed by Ameri·can River Aggregates: this llO(c) case is
AFFIRMED and a penalty of $600.00 is ASSESSED.
2.
In re WEST 93-200-M: Brad Nicolay employed by American
River Aggregates: This llO(c) case is AFFIRMED and a penalty of
$500.00 is ASSESSED.

Judge

Distribution:

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department
of Labor , 4015 Wilson Boulevard, Suite 400, Arlington, VA 2.2203
(Certified Mail)
Dana P. Matthews, HUBBERT, SHANLEY & COHEN, 2150 River Plaza
Drive, Suite 290, Sacramento, CA 95833
(Certified Mail)
ek

2145

OFFJC£ Of ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

OCT 2 0 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of ROBERT HARLOW,
Complainant

v.
NARROWS BRANCH COAL, INC.,
Respondent

.
REINSTATEMENT
. TEMPORARY
PROCEEDING
.. DISCRIMINATION PROCEEDING
... CIVIL PENALTY PROCEEDING
. Docket No. KENT 94-1327-D
. MSHA Case No. PIKE CD 94-04
.
.. No. 1 Mine

DECISION APPROVING SETTLEMENT
Appearances:

Susan Foster, Esq., MaryBeth Bernui, Esq.,
Office of the Solicitor, U.S. Department of
Labor, Nashville, Tennessee, for the Complainant;
Billy Shelton, Esq., Baird, Baird, _Baird & Jones,
P.s.c., Pikeville, Kentucky, for the Respondent.

Before:

Judge Melick

These consolidated cases are before me upon an Application
for Temporary Reinstatement, a Complaint of Discrimination and a
Petition for Assessment of Civil Penalty under the Federal Mine
Safety and Health Act of 1977 ( the Act) o At hearing, the parties
f iled a motion to approve a settlement agreement in which
Respondent agreed to reinstate the individual complainant , Robert
Harlow , to pay him back pay and interest for lost work and to pay
a civil penalty of $1,000. The Secretary and Mr. Harlow agreed
to the terms of settlement on the record. I have considered the
representations and dociimentation submitted in these cases , and
I conclude that the proffered settlement is acceptable.
WHEREFORE, the motion for approval of settlement is GRANTED,
and i t is ORDERED that Respondent pay a penalty of $1,000 within
60 days of this order. Respondent is further ordered to
reinstate Robert Harlow and
y H
ow damages, including back
pay and interest, in accord
the terms of the settlement
agreement.

Law Judge

Distribution:
Susan Foster, Esq., MaryBeth Bernui, Esq., Office of the
Solicitor, U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)
Billy Shelton, Esq., Baird, Baird, Baird & Jones, P.s.c.,
P.O. Box 351, Pikeville, KY 41502 (Certified Mail)
lh

2147

l'BDBRAL JllJIB SAPBTY Alm HEALTH uvxn COIDllSSJ:OB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

OCT 2 0 '994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CONSOLIDATION COAL COMPANY,
Respondent

CIVIL PENALTY PROCEEDINGS

..

Docket No. WEVA 94-176
A.C. No. 46-01453-04113
Docket No. WEVA 94-194
A.C. No. 46-01453-04114

Docket No. WEVA 94-225
. A.C.
No. 46-01453-04119
Humphrey No. 7 Mine
Docket No. WEVA 94-195
A.C. No. 46-01455-04013
Osage No. 3 Mine
DECISIONS
Appearances:

Robert S. Wilson, Esq., Elizabeth Lopes, Esq.,
Office of the Solicitor , U.S •. Department of Labor ,
Arlington , Virginia , for the Petitioner;
Elizabeth s . Chamberlin , Esq. , Consolidation coal
Company , Pittsburgh , Pennsylvania, for the
Respondent.

Before :

Judge Koutras
Statement of the Proceedings

These proceedings concern civil penal ty proposals filed
by the petitioner against the respondent pursuant to

section llO( a) of the Federal Mi ne Safety and Health Act of
1977 , 30 u.s.c . 820(c), seeking civil penal ty assessments for
five (5), alleged violations of certain mandatory safety
standards found in Parts 75 and 77, Title 30, Code of Federal
Regulations. Hearings were held in Morgantown, West Virginia,
and the parties appeared and participated fully therein. The
parties informed me that they proposed to settle these matters,
and arguments in support of their proposals were made on the
record.

2148

Issues
The issues presented in these proceedings include the fact
of violation, whether one of the violations was "significant and
substantial", whether the violations were the result of the
respondent's "unwarrantable failure" to comply with the cited
safety standards, and the appropriate civil penalty to be made
for the violations.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of
1977; 30 u.s.c. § 301 et seq .

2.

Section llO(a) and llO(i) of the Act .

3.

Commission Rules, 29 C.F.R.

§

2700 . l et seq.

Discussion
WEVA 94-176
Section l04(d) (2) non-"S&S" Order No. 330571'.7, September 8,
1993, cites a violation of 30 C.F.R. § 75.360(f), and the cited
condition or practice states as follows:
There is not enough initials, date, and time in the
6 nw construction area to show that the entire area has
been examined. There is one set at I.D.J . at the track
and one at the Battery Changer. All work is being done
i nby t his area. The miners working in this area are
Tim Tuttle and Dick Keryneski . The preshift
examinati on was done by Frank Sloevensky between
5:00 a.m. and 7:50 a.m. on 9-8-93.
Section 104(d) (2) non-"S&S" Order No. 3305720, September 9 ,
1993 , cites a violation of 30 C.F.R. § 77.502 , and the cited
c ondition or practice states as follows:
The last examination on the outside shop and supply
house was done on 7-12-93. All the equipment except
the compressors and welders are still energized. The
welders and compressors are not tagged out of service.
WEYA 94-194
Section 104(d) (2) non-"S&S" Order No. 3305555, September 8,
1993, cites a violation of 30 C.F.R. § 75.360(g), and the cited
condition or practice states as follows:

2 1 49

According to the preshift examiner's book for the track
haulage a hazardous condition has existed from o block
to 8 east. This condition was first recorded on
8/17/93, by the day shift and is still recorded in the
preshift examiner's book on 9-8-93 and no immediate
action has been taken by the mine foreman to correct
this condition. The condition recorded in the preshift
examiner's book is spillage in the walkway.
These records are signed daily by the mine foreman and
certified foremen are entering the condition in the
preshift examiner's book.
WEVA 94-195
Section 104(d) (2) "S&S" citation No. 3118845, June 9, 1993,
cites a violation of 30 C.F.R. § 77.502, and the cited condition
or practice states as follows:
Electric equipment is not being frequently examined and
properly maintained by a qualified person at Osage Shop
area. Several electrical violations have been issued
this day for hazards that have existed for some time
and not corrected, as well as items not properly
maintained. Citation 3118838, 6-9-93, exposed
energized parts. Citation 3118839 frayed electrical
card that has existed for several weeks. Citation
No. 318839, 6-9-93, frayed electrical cord that has
existed for several weeks. Citation Nos. 318840 and
318841 on 6-9-93, two hot plates without frame grounds.
Although not being used have not been inspected in
several months . Citation No. 3118842 , 6-9-93 , no frame
qround on the pressure switch for the compressor that
has existed for several months. Citation 3118844 ,
switch cover plate separated. These conditions,
cumulatively, present hazards that constitute a
reasonably likelihood of a lost time electrical injury .
The most recent electrical inspection was on 6-3-93.
There are four violations that, according to workers,
have existed for several weeks, and the monthly
electrical examiner, acting as an agent of the
operator, should have found and corrected. All of
these violations existed in one shop area that is
approximately 50 ft. x 50 ft, four of which, according
to workers existed prior to 6-3-93, and therefor
constitute an inadequate electrical examination.
Additionally, Citation 3118847, 6-9-93, is being issued
for electrical hazards on a welder, exposed energized
parts not guarded, and citation 3118848, 6-9-93, is
being issued for exposed energized parts on a cable
where isolation had broken down due to overcurrent.

2150

WEVA 94-225
Section 104(d) (2) non-"S&S" Order No. 33057~6, September 21,
1993, cites a violation of 30 c.F.R. § 75.360(g), and the cited
condition or practice states as follows:
The preshift of the 7 North empty and load track
indicates that a hazardous condition exists and action
has not been taken in a timely manner to correct the
condition. Starting 7-21-93, spillage was reported and
it has been in the record book each shift, with the
exception of 8-25-93 and 8-26-93 to date. This
condition was dropped these two days for no reason.
The last work recorded in this area was 8-18-93, on the
preshift conducted between 9:00 p.m. and 11:30 p.m.
The record book was countersigned by the mine foreman.
Findings and Conclusions
Petitioner's counsel presented arguments on the record in
support of the proposed settlement of the violations. Counsel
stated that the Humphrey No. 7 mine was on strike at the time
violations were issued, and due to the absence of any hazards to
any miners, all the violations noted at that mine- "were not
deemed to be "significant and substantial", (S&S).
Petitioner's counsel agreed that all of the cited conditions
were timely abated in good faith by the respondent, and that the
respondent's history of prior assessments, as reflected in the
pleadings, do not warrant additional increases in the penalty
assessments made in these cases .
Petitioner 9 s counsel asserted that the facts and evidence as
now known to him will not support any of the "unwarrantable
failure" determinations made by the inspectors who issued the
violations, and that the evidence does not establish that the
v iolations resulted from any "aggravated conduct" on the part
o f the respondent . Under the circumstances , counsel stated
that MSHA has agreed to reclassify and modify all of the
section 104(d) (2) orders and citation to section 104(a)
citations. In addition, MSHA agreed to modify all of the "high"
negligence findings to "moderate" negligence.
As a result of MSHA's reevaluation of these matters, and the
settlements agreed to by the parties, petitioner's counsel stated
that the initial proposed civil penalty assessments, which were
"specially assessed" as a result of the issuance of the
section 104(d) (2) orders and citation, have been reduced and
assessed according to MSHA's Part 100 regulations, and the newly
proposed settlement assessments reflect the modified and amended

2151

section l04(a) citations, with moderate negligence findings, as
well as the six statutory civil penalty criteria found in
section llO(i) of the Act. The initial assessme~ts and proposed
settlement amounts are as follows:
Docket No. WEVA 94-176
Order No.

Date

30 C.F.R.
Section

Assessment

Settlement

3305717
3305720

9/8/ 93
9/ 9/93

75.360(f)
77.502

$1,500
$1,500

$220
$220

Settlement

Docket No. WEVA 94-194
Order No .

Date

30 C.F.R.
Section

Assessment

3305555

9/8/93

75.360(g)

$2~000

$220

Docket No. WEVA 94-195
Citation No.

pate

30 C.F.R
Section

Assessment

Settlement

3118845

6/ 9/93

77 . 502

$4,000

$595

Assessment

Settlement

$1,500

$220

Docket No. WEVA 94-225
Order No .

~

30 C.F . R.
Section

3305766

9/ 21/93

75.360(g)

After careful review of all of the pleadings and arguments
p resented by the parti es in these proceedings , including the six
statutory penalty assessment criteria found in section llO(i) of
the Act , I rendered bench decisions approving the settlement
dispositions pursuant to commission Rule 31, 29 C.F.R . § 2700.31.
My bench decisions are herein reaffirmed and I conclude and find
that they are reasonable and in the public interest.
ORDER
In view of the foregoing, IT IS ORDERED as follows:
1. Section 104(d) (2) non-"S&S" Order Nos. 3305717, 3305720,
3305555, and 3305766 ARE MODIFIED to Section 104(a) non"S&S" citations, with moderate negligence findings, and as
modified, they are affirmed.

2152

2. Section 104(d) (2) "S&S" Citation No. 3118845, IS
MODIFIED to a section 104(a) "S&S" citation with a moderate
negligence finding, and as modified, it is affirmed.
The respondent IS FURTHER ORDERED to pay civil penalites in
the settlement amounts shown above in satisfaction of the
violations in question. Payment is to be made to MSHA within
thirty (30) days of the date of these decisions and order, and
upon receipt of payment, these matters are dismissed.

~-?/
4! ~
~~e
X: Koutras
Administrative Law Judge

Distribution:
Roberts. Wilson, Esq., Elizabeth Lopes, Esq., Office of
the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203 (Certified Mail) Elizabeth s. Chamberlin, Esq., Consol Inc., 1800 Washington
Road, Pittsburgh, PA 15241-1421 (Certified Mail)
/ ml

2153

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

.OCT 2 4 1994
SECRETARY OF LABOR,
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

BUFFALO CRUSHED STONE,
Respondent

CIVIL PENALTY PROCEEDING
:

Docket No • .YORK 94-51-M
A. C. No. 30-00012-05522

. Wehrle Quarry
DECISION

Appearances:

William G. Staton, Esq. Office of the Solicitor,
U.S. Department of Labor, New York, New York
for Petitioner;
Salvatore A. Castro, Safety Directo~, Buffalo
Crushed Stone, Inc., Buffalo, New York for
Respondent.

Before:

Judge Weisberger
Statement of the Case

This case i s before. me based upon a Proposal for Assessment
o f Civil Penalty filed by the Secretary of Labor (Petitioner)
alleging violations of various mandatory safety standards.
Subsequent to notice, the case was scheduled and heard in
Amherst , New York on August 2, 1994. Samuel B. Waters testified
f or Petitioner . Dennis T. Sullivan , and Thomas c. Rashford,
testified for Respondent . Petitioner filed a Post-Hearing
Memorandum on September 22 , 1994 . On October 3 , 1994, Respondent
f iled a Post-Hearing Summary .
Findings of Fact and Discussion
Introduction
Respondent operates the Wehrle Quarry, a limestone
operation, wherein rock is blasted, crushed, screened and sized.
Samuel B. waters, an MSHA inspector, .inspected the site on
December 14, 15, and 16, 1993. In the course of this inspection,
he issued Respondent seven citations, which are the subject of
this proceeding.

2154

Citation No. 4289703
On December 14, 1993, Waters inspected a fuel station
building located on the subject site. He observed that a metal
panel or quard, approximately 20 inches by 2 feet, had been
removed from the back of a fuel pump, exposing two pinch-points
inside the fuel pump where a belt went around two pulleys.
Waters indicated that one pinch-point was 19 inches above the
ground, and the other was 16 inches above the ground. According
to Waters, the pinch-points, which were recessed within the pump,
were, approximately, within an arms length distance of the
exposed opening of the pump. In essence, he indicated that a
person going between the back of the pump and the adjacent wall
to repair or service the pump mechanism inside the pump, could be
injured by the exposed pinch-points. In this connection, he
indicated that he had observed accidents wherein a person's pants
leg had gotten caught up in an exposed pinch-point. Waters
indicated that during the three days that he was on the site, he
saw the pump being used . He issued a citation alleging a
violation of 30 C.F.R. S56.14112(b) which provides as follows:
"Guards shall be securely in place while machinery is being
operated, except when testing or making adjustments which cannot
be performed without removal of the quard."
Dennis T. Sullivan, the equipment superintendent at the
site, indicated that prior to Waters' inspection, one of the
mechanics had told him that there was a fuel leak in the pump.
Also, there were some problems with a bearing.
Sullivan told
him to repair the pump. Essentially, according to Sullivan, it
is not possible to observe any fuel leak inside the pump with the
guard panel in place. Sullivan indicated that the mechanic told
h im on the day of the i nspection that he was waiti ng to replace
the panel until fueling time , i. ~ . , 3:30 p . m., so he could check
f or a fuel leak .
Waters indicated that one of the shop mechanics told him
t hat he had been servicing the bearings inside the pump on
December 13 , and had not put the panel back .
I accept the testimony of Waters that the pump was in use when
he was there . Also , his testimony that the guard was not in place
exposing the pinch-points, was not contradicted or impeached. I
thus find that the evidence establishes that Respondent was in
violation of the first clause of Section 56.14112(b), supra. I
also find that Respondent has failed to establish that the
circumstances at issue fit within the exception provided for in the
second clause of Section 56.14112(b), supra. There is no testimony
from any person having personal knowledge that any testing or
adjusting of the equipment recessed in the pump was being performed
when the pump was cited ·by Waters. I find that a penalty of $50 is
appropriate for this violation.

2155

Citation No. 4289704.
According to Waters, on December 14, 1993, he observed a
glass panel in one of the two access doors to the fuel station
building. 1 According to Waters, the glass panel, 17 inches by 27
inches, contained various intersecting fractures. He said that
he could feel several sharp edges on the panel in four different
areas. The bottom of the glass panel was approximately 4 1/2
feet above the ground. The glass panel was reinforced with the
one inch by inch mesh.
Waters issued a citation alleging a violation of
30 C.F.R. S 56.14103(b). On May 27, 1994, Petitioner moved
to amend the citation to change the standard allegedly
violated from 30 C.F.R. S 56.14103(b) to 30 C.F.R. S 56.11001. 2
on June 16, 1994, an Order was entered granting Petitioner's
motion.
Respondent has not contradicted or impeached the testimony
of Waters regarding the existence of broken glass in the panel of
the door at issue. Therefore, I accept his testimony. I find
that the glass panel in an access door was crackeq, and contained
sharp edges of glass. Hence, there was some degree of diminution
of safe access to the fuel station, as the condition of the glass
panel could cause lacerations to persons contacting the panel as
they passed through the doorway. 3 The hazard of possible contact
with the broken glass in the panel exists inspite of the fact
that the glass was reinforced with wire mesh. Hence, I conclude
that Respondent did violate Section 56.11001, supra. I find that
a penalty of $50 is appropriate for this violation .

1

Near the pinch-points, the door at issue led from the fuel
station building to the shop.
2

Section 56.11001 supra, provides as follows: "Safe means
of access shall be provided and maintained to all working
places . "
3

Sullivan testified that normally the door was kept open.
This normal practice does not relieve Respondent from complying
with Section 56.11001, supra. The door can be closed, and miners
can thereby gain access to and from the fuel station by opening
and closing this door, thus, exposing them to the hazard of the
broken glass.

2156

Citation No. 4289705
violation of 30 C.F.R. S 56.12032
According to Waters, on December 15, 1993, the front cover
had come off the electric junction box that was utilized for the
liqhting circuits. Because the cover was off, the conductors
inside the box were exposed. The conductors were part of a 120
volt system. Waters issued a citation alleging a violation of
30 C.F.R. S 56.12032 which provides as follows: "Inspection and
cover plates on electrical equipment and junction boxes shall be
kept in place at all times except during testing or repairs."
Based on the testimony of Waters, I find that the junction
box at issue did not have a cover plate that was in place. There
is no evidence that Respondent was performing any testing or
repairing at the time. I thus find that Respondent did violate
Section 56.120032, supra.
Significant and Substantial
The box was located within inches of an adjacent walkway,
and was one foot above the walkway surface. The surface of the
walkway was composed of metal plates which were not slippery at
the time. Waters opined that "material" gets spilled on the
walkway surface. (Tr. 36).
Waters opined that because of the absence of the f~ont
cover, the conductors within the junction box would be exposed to
ultraviolet rays from the sun which, over t .i me, could deteriorate
the conductors ' insulation, leading to the junction box becoming
energized . He also indicated that a person, in ascending the
walkway , could slip and fall , and inadvertently place his hand
i nside the box. He opined that a person cleaning the walkway
with a shovel, could contact energized parts inside the box with
the shovel. He indicated that contact with energized parts of
the junction box could be fatal, since the majority of
electricity-caused fatalities occur when the voltage is at 120
volts, as is the case herein. Based on these factors he
concluded that an injury was reasonably likely to occur, and that
a fatality could result. For these two reasons, he concluded
that the violation was significant and substantial.
A "significant and substantial 11 violation is described in
Section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard"
30 C.F.R. S 814 (d) (1).

2157

In Mathies coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, ~ measure of danger to safetycontributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
I find that the factors taken into account by Waters could
occur. However, the record before me fails to establish that an
injury producing event i.g., contact with bare wires or other
metal material energized at 120 volts, was reasonably likely to
have occurred. In this connection, I note that the wires inside
the junction box were secured and insulated. I conclude that the
violation was not significant and substantial. ! _find that a
penalty of $50 is appropriate for this violation.
citation No. 4289706
The number 3A conveyor is equipped with an emergency stop
cord which is located along the side of the conveyor belt.
Generally, the cord is supported by metal vertical standards .
Accordi ng to Waters , the purpose of the stop cord is to allow a
p erson to i ntentionally pull the cord in an emergency to stop
t he conveyor belt . Also , the conveyor belt might be stopped i f
the cord is inadvertently hit, and pulled down by a person
accidently falling while walking on the walkway.
On Decemb~r 15 , 1993 , Waters observed that one of the
v ertical support standards was loose for a distance of
approximately 20 feet, and the stop cord was not in its normal
l ocation. He stated that for a distance of a couple of feet, the
cord dropped 2 inches below the level of the conveyor belt.
Waters said that normally the stop cord is located at the level
of the conveyor , or up to several inches above it. Waters opined
that since the cord was not in its normal position, should a
miner slip and not be able to hit the cord to deactivate the
conveyor, an injury could result.

2158

Waters issued a citation alleging a violation of
30 C.F.R. S 56.14109(a) which provides that unguarded conveyor
next to travelways "· •• shall be equipped with-{a) Emergency
stop devices which are located so that a person falling on or
against a conveyor can readily deactivate the conveyor drive
motor; • • • "·
The conveyor in question was equipped with an emergency stop
cord. Waters admitted that he did not check the pull cord to see
if it worked. There is no evidence that, at the location cited,
a person falling could not readily deactivate the conveyor drive
motor by pulling on the stop cord. There is no requirement in
Section 56.14109, supra that the stop cord be at a any specific
height. Within this context, I find that Petitioner has not
established that Respondent violated Section 56.14109, supra.
Accordingly, Citation No. 4289706 is to be dismissed.
Citation No. 4289707
Violation of 30 C.F.R. S 56.11009
According to Waters, the inclined walkway adjacent to the
number cs conveyor, extends approximately 7290 feet. The surface
of the walkway consists of wooden plank boards, and is not
nonskid. In general, the walkway surface is provided with
cleats. Waters described these as wooden boards, l inch square,
which are nailed perpendicular to the edges of the walkway.
Waters indicated these are usually placed every 12 to 18 inches.
He testified that the surface of a 16 foot long section of the
walkway was not cleated, nor was it nonskid. He issued a
citation alleging a violation of 30 C.F.R. S 56.11009, supra
which, as pertinent , provides as follows: "Inclined railed
walkways shall be nonskid or provided with cleats."
Rashford, who accompanied Waters, indicated that, in normal
practice, the distance between the cleats allows for a person
traversing the walkway to hit a cleat with every other step. He
i ndicated that in the walkway at issue the cleats were a stride
apart i .~. , a little less than 3 feet. However , he did not
specifically rebut Waters·• testimony that a 16 foot long section
of the walkway surface was not cleated or nonskid. Nor was
Water's testimony impeached. I thus find that a 16 foot long
section of the walkway was nonskid and there were no cleats
provided. According to Waters, the surface of the walkway
contained compacted material. He said that a miner's
representative who accompanied him on the inspection told him
that this material becomes slippery when wet. Hence, a person

21 59

traversing the 16 foot uncleated portion of the walkway, would
have been deprived of the protection against the risk of slipping
provided for in Section 56.11009, supra. For these reasons, I
find that Respondent did violate Section 56.11009, supra.
Siqnif icant and Substantial
Waters opined that when the walkway becomes slippery, it is
easy to trip and fall and hit the surface of the walkway.
According to Waters, such an accident can result in fractures to
fingers or wrists, or possible head injuries. He concluded that
the violation was significant and substantial, because it was
reasonably likely that a person traversing the area without
cleats would fall, and a resulting injury would cause a loss of
work days.
According to Rashford, there was no debris on the walkway .
The greater portion of the walkway was properly provided with
cleats. I find that in this context, an injury producing event,
i.~., slipping or falling on the uncleated portion of the
walkway, was not reasonably likely to have occurred. I thus find
that violation was not significant and substantial. (See Mathies,
supra). I find that a penalty of $50 is appropriate for this
violation.
Citation No. 4289709
Waters indicated that there was a steep stairway leading
to the tail of the No. l belt. 4 He said that one side of the
s tairway was up against a wall , and the outside of the stairway
was provided with a handrail . He said that handrail was between
18 to 21 i nches high . Waters indicated that when he observed the
handrail, he concluded that it was too low to restrain a person
who might stumble while descending the stairway, and tumble over
the handrail. He indicated that in this situation a person
could fall , and land on the concrete surface 12 feet below
t he stairway . He issued a citation alleging a violation of
30 c.F.R . S 56.11002 which provides, as pertinent, that stairways
shall be "provided with handrails, and maintained in good
condition."
The evidence establishes that the stairway was provided with
a handrail. There is no evidence that the handrail was not in
qood condition. There is no requirement in section 56.11002
supra, that the handrail be of a minimum height. It is clear, as
indicated by Waters on cross-examination, that the optimum height
depends upon the degree of incline of the stairway. I agree with
4

The stairway was at a fifty degree angle.

2160

Petitioner that Section 56.11002 supra, must be construed to
effectuate its remedial purposes. Hence, the handrail required
by Section 56.11002 supra, must be capable of providing effective
protection for miners using the stairway. Waters opined that the
handrail at issue was too low to restrain a person who might fall
using the stairway. Respondent did not impeach or contradict
this opinion. It therefore is accepted. I find that it has been
established that Respondent violated Section 56.11002, supra.
The lack of a proper handrail contributed to the hazard of a
person falling off the stairway. However, there are no specific
facts in the record to predicate a finding that an injuryproducing event, i.~., falling on the stairway, was reasonably
likely to have occurred. I therefore find that the violation was
not significant and substantial. (See, Mathies, supra).
I find that a penalty of $50 is appropriate.
Citation No. 4289712
A seat belt provided on a Caterpillar loader contained a
tear that started at the side edge of the belt, and extended
three quarters of an inch perpendicular to the length of the
belt. The belt was 3 5/16 inches wide. Waters opined that there
was plenty of belt left to hold a person in place; should the
vehicle turn over. He issued a citation alleging a violation of
30 c.F.R. S 56.14130(i) which provides as follows: "Seat belts
shall be maintained in functional condition, and replaced when
necessary to assure proper performance."
Although the seat belt was torn, there is no evidence that
it was not i n functional condition. Nor is there any evidence
t hat t he tear was of sufficient length in relation to the width
of the seat belt , as to dimini sh the proper performance of the
seat belt. Indeed, Waters opined that should the vehicle turn
over there was plenty of belt left to hold a person inside.
Within this framework, I conclude that it has not been
established that Respondent vi olated Section 56.14130 (i ) , supra .
Therefore 0 citation No . 4289712 shall be dismissed .
ORDER

It i s Ordered as follows:
1.

Citation Numbers 4289706 and 4289712 shall be
dismissed.

2.

Citation Number 4289705, 4289707 and 4289709, shall be
amended to indicate violations that are not significant
and substantial.

2161

3.

Respondent shall pay a civil penalty of $250 within 30
days of this decision.

A~e~r

Administrative Law Judge
Distribution:
William G. Staton, Esq., Office of the Solicitor,
u.s. Department of Labor, 201 Varick street, Room 707,
New York, NY 10014 (Certified Mail)
Salvatore A. Castro, Safety Director, Buffalo Crushed Stone,
Inc., 2544 Clinton Street, P.O. Box 710, Buffalo, NY 14224
(Certified Mail)
/efw

2162

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

OCT 2 5 1994

.

.. CONTEST PROCEEDING

JIM WALTER RESOURCES, INC.,
Contestant

Docket No. SE 94-326-R
Order No . 2807385; 3 / 30/94

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

No. 4 Mine
MINE ID 01-01247

DECISION

Appearances:

David M. Smith, Esq., and J. Alan Truitt, Esq . ,
Maynard, Cooper & Gale, P.C., Birmingham, Alabama,
and R. Stanley Morrow, Esq., Jim Walter Resources,
Inc., Brookwood, Alabama, for Contestant;
Patrick K. Nakamura, Esq., Longshore, Nakamura &
Quinn, Birmingham, Alabama, for Intervenors;
William Lawson, Esq . , Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama for
Respondent.

Before:

Judge Hodgdon

This case i s before me on a not i ce of contes t filed by
u i m Walter Resources , I nc . ( JWR) against the Secretary of Labor
pursuant t o Section 105 o f the Federal Mine Safety and Health
Act of 1977 , 30 u.s.c. § 815 . JWR contests the issuance of Order
No. 2807385 to it on March 30, 1994. For the reasons set forth
below , the order is affirmed.
This case was heard on July 26 , 1994 , in Birmingham ,
Alabama . Judy Ann McCormick testified on behalf of the
Secretary . Thomas E. McNider and Edward w. Grygiel testified for
JWR . The parties have also filed briefs which I have considered
i n my disposition of this case .
BACKGROUND

This case is a classic example of what happens when all
terms of an agreement are not reduced to writing. The essential
facts are undisputed, but the conclusions that JWR and the Mine
Safety and Health Administration (MSHA) have drawn from those
facts are widely divergent.

21 6 3

Early in 1992, JWR submitted to MSHA a ventilation control
plan to be implemented for all of its longwall mines, including
the No. 4 Mine. Among other things, the plan proposed an
alternative method for sampling the respirable _dust exposure of
the designated occupation on the longwall section to that set out
in Section 70.207(e) (7) of the Regulations, 30 c.F.R.
S 70.207(e) (7). 1 MSHA had, at least, two objections to this
particular proposal.
First, MSHA did not agree to determining the time that
miners would be permitted to work downwind of the shear to be
based on the weight of the dust collected in the sampling device.
Section K(2) of the plan provided that seven dust pumps would be
operated for one, two, three, four, five, six and seven hour
intervals during standard operating cycles of the longwall and
that the permissible downwind time would correspond to the
interval sample which did not exceed 2 mg. of dust. MSHA wanted
the plan to provide for equivalent concentrations as set out in
Section 70.206 of the Regulations, 30 C.F.R. § 70.206. 2 MSHA
Section 70.207(e) (7) states:
(e) Unless otherwise directed by the District
Manager, the designated occupation samples shall be
taken by placing the sampling devices as follows:

( 7) Longwall section . ·ori the miner who works
nearest the return air side of . the longwall working
f ace or along the working face on the return side
within 48 inches of the corner .
2

Section 70 . 206 explains :

The concentration of respirable dust shall be
determined by dividing the weight of dust in milligrams
collected on the filter of an approved sampling device
by the volume of air in cubic meters passing through
the filter and then converting that concentration to an
equivalent concentration as measured with an MRE
instrument. To convert a concentration of respirable
dust as measured with an approved sampling device to an
equivalent concentration of respirable dust as measured
with an MRE instrument, the concentration of respirable
dust measured with the approve sampling device shall be
multiplied by the constant factor prescribed by the
(continued on next page)

216 4

apparently prevailed on this issue because the approved plan
states that the downwind time will be adjusted to - correspond to
the interval sample that does "not exceed 2mgm3 [sic]."
(Gvt.
Ex . 2.)
Secondly, and what has caused the problem in this case, MSHA
did not agree with JWR's interpretation of what Section K(3) (e}
meant when it said that when dust sampling revealed that dust
exposure levels upwind of the shear were not in compliance with
the permissible level of exposure, that the time that all workers
on the longwall face would be permitted to work would "be
adjusted utilizing the downwind exposure time in place." To JWR,
"downwind exposure time in place" referred to the permissible
downwind time determined under Section K(2) of the plan.
(Tr.
108-09.) To MSHA, "downwind exposure time in place" would be
determined by using a computer formula taking other ingredients,
including upwind exposure levels, into consideration .
(Tr . 49,
98-99.)
The plan for the No. 4 Mine was approved sometime after June
1992. 3 (Gvt. Ex. 2 . ) Although there were many discussions
between JWR and MSHA concerning ·t he interpretation.of K(3) (e},
some of which evidently took place after the plan was approved,
MSHA consistently has held to its interpretation of the plan.
The approved plan, however, contains the original language for
Section K(3}(e) proposed by JWR. There is no evidence that MSHA
communicated its interpretation to JWR in writing, nor is there
any evidence that JWR affirmatively agreed, in writing or
o therwise , to MSHA ' s interpretation o
Nevertheless , JWR h'a d been furnished copies of the computer
p rogram used by MSHA to calculate the downwind time no later than
August 1992, and was aware of what the program involved.
(Cont .
Ex . F . ) By December 1992, JWR was also aware that in calculating
the downwind time , MSHA would not necessarily use all seven

Secretary for the approved sampling device used, and the
product shall be the equivalent concentration as measured
with an MRE instrument.
3

There is no evidence, direct or otherwise, as to when the
plan was actually approved. Gvt. Ex . 2 does not contain the
standard cover letter from the District Manager approving the
plan . No one testified concerning the date the plan was
approved. However, no one disputed that the plan was in fact
approved.

2165

samples provided for in K(2), but would eliminate up to two
samples that were out of "progression." (Cont. Ex. E., Tr. 7479.)
At least once, prior to the order in question, JWR was
issued a citation at the No. 4 Mine for violating its ventilation
control plan with respect the downwind exposure on the longwall.
(Tr. 33-4, 37, 127.) JWR apparently did not challenge MSHA's
interpretation of the plan with respect to any alleged violations
received prior to the instant one. 4
On March 28, 1994, MSHA notified JWR that the March 23 dust
sample results for the shear operator showed noncompliance with
the applicable dust standard and that, therefore, the
corresponding face time for the longwall was "O" hours. In other
words, the longwall could not be operated. That same day, JWR
submitted a supplemental plan to allow the longwall to resume
operations. The plan was approved on March 29.
On March 30, Judy McCormick, an MSHA coal mine inspection
supervisor, while at the No. 4 Mine, was informed -by JWR
employees that the longwall had been operated between the time
JWR was notified of the "O" face time and the time the
supplemental plan was approved. Consequently, Section l04(d) (2) 5
Order No. 2807385 was issued to JWR on March 30. The order cited
a violation of Section 75.370(a) {l) of the Regulations, 30 C.F.R.
§ 75 . 370(a) (1), and stated:

4

JWR's challenge to MSHA's disapproval of this ventilation
plan, particularly Section K{2), with respect to its No. 5 Mine
was denied by another Commission judge, Jim Walter Resources,
I nc o, 16 FMSHRC 851 (Judge Melick , April 1994) 0 That decision is
currently pending before the Commission .
Section 104{d) (2) of the Act , 30 u.s . c .
p rovides , in pertinent part :
5

§

814(d) (2). ,

If a withdrawal order with respect to any area in
a coal or other mine has been issued pursuant to
paragraph (1), 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 (1) until such time as an inspection of such
mine discloses no similar violations.

21 6 6

On 3/28/94, the operator was notified via
telephone and fax that the "K" sample results indicated
that the shear operator was in non-compliance on the
No.#2 Longwall (MMU 0200) and the downwind time was O
hours. As a result, the face time for the longwall was
also O hours. A plan was approved on 3/29/94
approximately mid day-shift which allowed the longwall
to resume operations in order for samples to be
collected. on the morning of 3/30/94, it was
revealed, through interviews with longwall employees,
that at approximately 10:30 PM on 3/28/94, the #2
longwall did resume operation in violation of item
K.3.E. of the approved dust control portion of the
current ventilation plan. The longwall continued to
operate through the owl shift and was then closed on
the day shift on 3/29/94.
( Gvt . Ex . 3 . )
FINDINGS OF FACT AND CONCLUSIONS OF LAW

Section 75.370(a) (1) provides, in pertinent part, that
"[t]he operator shall develop and follow a ventilation plan
approved by the district manager. The plan shall be designed to
control methane and respirable dust and shall be suitable to the
conditions and mining system at the mine. •:
In another case involving JWR, the Commission described how
t he v entilation pla n is supposed to be developed and approved .
l'c said :
The approval and adoption process is bilateral and
results in the Secretary and the operator, through
consultation, discussion, and negotiation, mutually
agreeing to ventilation plans suitable to the specific
conditions at particular mines . Zeigler Vo Kleppe , 536
F. 2d 398 , 406-407 (D.C. Cir. 1976); Carbon County Coal
Co. , 6 FMSHRC 1123 (May 1984). The process is
flexible, contemplates negotiation toward complete
agreements, and is aimed at compliance with mine safety
and health requirements. Under the approval and
adoption process, the operator submits a plan to the
Secretary who may approve it or suggest changes. The
operate~ is not bound to acquiesce in the Secretary's
suggested changes. The operator and the Secretary are
bound, however, to negotiate in good faith over
disputes as to the plan's provisions and if they remain
at odds they may seek resolution of their disputes in
enforcement proceedings before the Commission. Carbon

216 7

county Coal company, 7 FMSHRC 1367, 1371 {September 1985);
Penn Allegh coal Co., 3 FMSHRC 2767, 2771 (December 1981).
The ultimate goal of the approval and adoption process is a
mine-specific plan with provisions understood by both the
Secretary and the operator and with which they are in full
accord. Once the plan is approved and adopted, these
provisions are enforceable at the mine as mandatory safety
standards. Zeigler, supra at 409; Carbon County, 7 FMSHRC
at 1370; Penn Allegh.
Jim Walter Resources, Inc., 9 FMSHRC 903, 907 {May 1987).
Unfortunately, the process did not work as it was supposed to in
this case.
Clearly, if the provisions of JWR's ventilation plan were
understood by both JWR and MSHA and if they were in full accord
in that understanding, this case would not have arisen. Both
parties share the blame for this. If MSHA intended to interpret
Section K(3) (e) of the plan as it has, it should have required
that the section be written in accordance with its
interpretation. If JWR would not agree to that, then MSHA
should not have approved the plan. On the other hand, once JWR
learned how MSHA was interpreting the section, it was incumbent
on them to notify MSHA immediately if they did not agree to that
interpretation, rather than wait a year and a half and at least
one citation later to claim that the interpretation was not part
of their plan.
Based on the facts in this case , I conclude that JWR
violated the provisions of its ventilation plan and , thus ,
v iol ated Section 75.370(a) (1) as alleged. This conclusion is
grounded on a finding that JWR acquiesced in MSHA's
interpretation of the plan. There are two factors which· indicate
that JWR acquiesced in MSHA's interpretation .
First , the method for sampling the dust-exposure of the
designated occupation on the longwall section was not required to
be in the ventilation plan and was, therefore, gratuitous to the
plan . In fact , Section 70.207(e)(7) specifically provides the
method for sampling the longwall section and the only alternative
to that method is as otherwise directed by the District Manager. 6
Consequently, since the method of dust sampling is not an option
with the operator, the district manager could have rejected that
part of the plan out of hand.

6

supra.

The text of Section 70.207{e) (7) is set out in fn. 1,

21 68

Instead, the district manager, apparently as an
accommodation to JWR, considered that section of the plan to
determine if he wanted to "otherwise direct" JWR's proposed
method of sampling. In effect, he directed the method with
MSHA's modifications. While this direction should have been in
writing, at this point, JWR could either have accepted the
modifications, or sampled in accordance with Section
70.207(e) (7). Since they continued to operate under the plan,
JWR apparently accepted the modifications.
The second element that indicates that JWR assented to
MSHA's interpretation is the time factor. JWR knew by August
1992 how MSHA was interpreting Section K( 3 ) (e) and they knew by
at least December 1992 that MSHA was not always using all seven
samples submitted to apply the section, yet they apparently did
nothing about it. For over a year they continued to submit
monthly samples. JWR received at least one citation for
violating the secti on and apparently had other occasions when the
longwall was shut down for a period of time because of the
section, but they did not contest MSHA's interpretati on.
It was only when JWR received a serious 104(d) (2) order that
they suddenly claimed that the plan was being applied improperly.
By the n, it was too late. JWR had acquiesced in MSHA's
interpretation and is bound by that acquiescence.
This violation was determined by the inspector to be
'signif icant and substantial. " 7 In Consolidat:i on Coal Company,
8 FMSHRC 89 0 , 899 (June 1986) , aff'd sub nom. Consolidation Coal
v. FMSHRC , 8 24 F . 2d 1071 (D.C. Cir . 1987) , the Commission held
t hat " when the Secretary proves that a v i olation of 30 C.F.R.
§ 70.lOO(a ) , based upon excessive designated occupation samples ,
0

7

A "significant and substantial" (S&S) violation is
described in Section 104(d) (1) of the Act as a violation "of such
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard." A violation is properly designated S&S "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." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

2169

has occurred, a presumption that the violation is a significant
and substantial violation is appropriate."
Although this case involves a violation of Section
75.370(a) (1), not Section 70.lOO(a) , the same principle is
involved. By violating its ventilation plan, JWR's miners were
exposed to excessive dust concentrations. Thus, the reasoning
behind the presumption applies as well to this case.

JWR has not presented any evidence to rebut the presumption
that the violation in this case was "significant and
substantial." Accordingly, I conclude that it was "significant
and substantial."
MSHA also characterized this v iolation as having occurred as
the result of an 11 unwarrantable failure" o n JWR's part. 8
Ms. McCormick testified that it was characterized this way
because:
first this was not the first time that this has
happened at the No. 4 mine. Second, the operator was
notified by telephone and by fax of the fact-that the
shearer [sic ] operator sample • . . was not in
compliance. When I talked to Mr. Andrews on the
telephone, the safety inspector for the company, we
discussed the fact that the longwall was closed. It
was a convenient opportunity for it to come at that
time because the longwall was down for maintenance
p roblems anyway . So when the .maintenance problems were
o ver and they put the longwall . back to work , we did
f eel that it was reckless disregard on their part
b ecause they were well aware -0f what the plan requ i red
and had been notified that they were in violation .
(Tr . 37- 8 .)
I n addition to this , the evidence indicates that JWR
submitted a supplemental plan to MSHA to permit them to resume
operating the longwall, but started operations before th~ plan
had been approved . Taken all together, I conclude that JWR's
8

The Commission has held that "unwarrantable failure" is
aggravated conduct constituting more than ordinary negligence by
a mine operator in relation to a violation of the Act. Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987).

2170

conduct in committing this violation was inexcusable,
unjustifiable and, therefore, aggravated. Consequently, the
violation resulted from JWR's "unwarrantable failure."
ORDER

JWR violated Section 75.370{a) {l) of the Secretary's
Regulations by not complying with its ventilation control plan.
The violation was both "significant and substantial" and the
result of an "unwarrantable failure." Accordingly, it is ORDERED
that Order No. 2804385 is APFXRKED.

~~~
T. Todd Ho~~~- - .
Administrative Law Judge
Distribution:
Davi d M. Smith, Esq., J. Alan Truitt, Esq., Maynard, Cooper &
Gale, P.C., 1901 Sixth Avenue North, 2400 AmSouth/Harbert Plaza,
Birmingham, Al 352 03 {Certified Mail)
R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O. Box
133, Brookwood, AL 35444 {Certified Mail)
William Lawson , Esq. , Office of the Solicitor, U.S. Department of
Labor , Chambers Bldg . , Highpoint Office Center, Suite 150, 100
Centervi ew Drive , Birmingham, AL 35216 (Certified Mail)
Patrick K. Nakamura , Esq., Longshore, Nakamura & Quinn, 2100
First Avenue North, Suite 300, Birmingham, AL 35203 {Certified
Mail )
/ l bk

2171

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

OCT 2 6 1994·
OLD BEN COAL COMPANY,
Contestant

v.

CONTEST PROCEEDING
Docket No. LAKE 94-615-R
citation No. 4050921; 7/29/94

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

Spartan Mine
Mine ID 11-00612
DECISION

Appearances:

Before:

Timothy M. Biddle, Esq., Crowell & Moring,
Washington, D. c., and Thomas L. Clarke, Esq., Old
Ben Coal Co., Fairview Heights, Illinois, for
Contestant;
Miguel J. Carmona, Esq., Office of the Solicitor,
U. s. Department of Labor, Chicago, Illinois, for
Respondent .

J udge Amchan
Procedural Background

This case arises out of Old Ben Coal Company's contest of
citation No . 4050921 , which was issued on July 29, 1994, alleging
that Old Ben was operating without an approved ventilation plan.
Section 75.370(a}(l) of volume 30 of the Code of Federal
Regulations requires a mine operator to develop and follow a
ventilation plan designed to control methane and respirable dust.
That plan must be suitable to the conditions and mining system at
the mine and must be _approved by MSHA .
Ventilation plans must be reviewed by MSHA every 6 months to
assure that they are suitable to the current conditions at the
mine, 30 c.F.R. § 75.370(f). In the spring of 1994, during such
a review of Old Ben's ventilation plan for its Spartan mine in
Randolph County, Illinois, MSHA concluded that the then approved
ventilation plan was deficient. on March 22, 1994, MSHA wrote
Contestant advising them of these perceived deficiencies and
requesting their correction (Exh. R-3, pp. 21-22).
•

2172

All of the alleged deficiencies were changed to MSHA's
satisfaction save one {Exh. R-3, pp. 7-8). After a meeting on
June 7, 1994, Contestant requested that MSHA issue a citation so
that the dispute could be resolved before the Commission
{Tr. 147). The approval for the ventilation plan expired on June
30, 1994 {Exh. R-2). The instant citation was issued shortly
thereafter (Tr. 13-14).
To abate the citation Old Ben submitted a revised plan which
was approved by MSHA on August 1, 1994 (Exh. C-6). On August 2,
1994, Old Ben filed a notice of contest to citation No. 4050921,
claiming that the changes that were forced upon it by MSHA were
not warranted by the conditions at the Spartan mine.
The Disputed Plan Provision
The unresolved issue in Contestant's disapproved plan
concerned the typical sequence of extended face cuts. More
specifically, MSHA was concerned with the ventilation of the
straight (or straight portion of an entry) when a crosscut was
made to the right, (Exh. C-2, p. 18, top sketch).
The same procedure was employed by Old Ben with all three of
the continuing miner units at the Spartan mine. hs depicted on
the right side of exhibit C-4, notch 9 {in purple) and in
exhibit C-5, the continuous miner would advance over 100 feet
inby the last open crosscut and then would back up over 76 feet
to cut a notch to start a crosscut to the right of the entry.
When the mining machine cut this notch, the line curtain, which
had extended to within 38 feet of the working face on the right
s ide of the entry , was removed in the area in which the notch was
c ut {Tr . 23 , 126 ).
The line curtain in this area was not generally replaced
until this notch was bolted. This could occur within a few
minutes or as much as an hour and a half after the notch was cut
{Tr . 131-32 ). The continuous miner would back out of the entry
a fter cutting the right notch and then return at a later time to
cut the crosscut all the way through to the adjacent entry to the
right. The line curtain would also have to be taken down or
curved to the right, to allow completion of the crosscut
{Exh . C-2 , p . 18) .
During its review of Contestant's ventilation plan in the
spring of 1994, MSHA concluded that Old Ben's mining procedure
did not proyide adequate ventilation to the straight, the area
inby the notch {Tr. 33, area C of exhibit C-5). The agency
concluded that, due to this condition, methane which was
liberated from the coal seam would not dilute or dissipate and
could explode (Tr. 35-36, 39, 43).

2173

Under the ventilation plan approved by MSHA in August 1994,
the continuous miner advances only 20 feet beyond the inby rib of
the crosscut which it will start to the right (Exh. C-7, C-8), as
opposed to 76 feet under the disapproved plan (Tr. 154-56,
Exh. C-5). The post-August 1994 procedure requires Contestant to
move its equipment more frequently, which results in a decrease
in coal production of 800 - 1,000 tons per mining cycle
(Tr. 166-67) •
Contestant also alleges that the new procedure is more
hazardous than the old. It submits that the increased number of
equipment moves is likely to result in an increased number of
back injuries (Tr. 158, 180-81). 1 Further, Contestant believes
the new procedure increases the chances of a miner being crushed
by its machinery (Tr. 193 -94), and increases the exposure of its
miners to coal dust (Tr. 203, 210).
Most importantly, Contestant claims that the changes imposed
upon it by MSHA's disapproval of its prior ventilation plan are
unnecessary in protecting the health and safety of its miners
(Tr. 165-67). Thus, it concludes that its old plan was suitable
to the conditions at the Spartan mine and that the MSHA-imposed
plan is unsuitable in that it increases hazards and reduces the
profitability of the mine without legitimate reasons.
The Spartan mine is not a high methane liberation mine
(Tr. 46). In approximate l y 38,000 examinations made at the
working faces of the Spartan mine between December 1992 and
August 1994, no concentrations of methane were found above
four-tenths of one percent (Tr. 186, Exh. C-9) 2 • Four-tenths
was detected on two occasions , three-tenths on another two
o ccasions. Two-tenths of one percent or less was detected on all
other o ccasi ons (Tr . 18 6-87 ) .
There is no indication that there has ever been a methane
explosion at the Spartan mine, or a citation issued for excessive
methane. Similarly , there is no i ndication that a continuous
miner ha s ever .been de-energized at the Spartan mine due to
methane concentrations over one percent (Tr. 132-3 3, 189-90) .
However , in 1986 , 7% methane was detected for a split second when
a roof bolting machine drilled into it (Tr . 197-98) .

Transcript page 158, line 5 erroneously attributes to the
undersigned statements made by Contestant's witness,
William Patterson, regarding these hazards.
2

The Spartan mine experienced a strike between - ~ay 10,
1993 and December 16, 1993 (Tr. 186).

2174

Old Ben also contends, and I find, that methane releases at
the Spartan mine are and will be very rare and will occur in
relatively small pockets (Tr. 227). It is unlikely that methane
liberation will increase at the Spartan mine in the foreseeable
future (Tr. 235-36).
Ninety-five percent of the methane in the Spartan mine is
likely to be released during the cutting of coal (Tr. 229-30).
Very little of the methane at this mine is residual gas which
will be released after cutting is finished (Tr. 232-34).
There are no ignition sources in the straight after the
continuous mining machine backs up until the roof bolting machine
enters the area (Tr. 236). The roof bolting machine operator
must check for methane before entering this area and every twenty
minutes thereafter (Tr. 191-92, 243-44).
Disposition of the Citation
In cases arising out of a dispute over the disapproval of a
ventilation plan, the Secretary of Labor has the burden of
proving that the rejected plan was no longer suitable and that
the new plan is suitable, Peabody Coal Company, 15 FMSHRC 628
(April 1993); 15 FMSHRC 381 (March 1993). In the instant case,
the Secretary has not met either bur~en.
The Secretary has not established that the disapproved plan
created hazards to Contestant's miners that made it unsuitable.
Similarly, in view of his failure to show the unsuitability of
t he old plan , he has failed to establish the suitability of the
new p lan , given the significant increased costs of production ,
which the new plan imposes upon the operator .
Much of MSHA's theory that the old plan is dangerous depends
on conclusions drawn from smoke tests made at the Martwick mine
in Western Kentucky and other mines (Tr. 36, 82-83). From those
tests MSHA concludes that there is no air movement in the
straight under the conditions existing under the disapproved plan
at Contestantvs mine. However, Contestant's expert, Donald
Mitchell, whose opinion I credit, concluded that there is
sufficient air flow into the straight at the Spartan mine under
the old plan to render whatever methane is released harmless
(Tr . 237-38) .
Following the hearing in this matter I requested that the
parties file briefs to address the applicability, if any, of
MSHA's regulations at 30 c.F.R . § 75.330 and § 75.333(g} to this

2175

case. The parties agree that section 75 .333(g) does not have any
relevance to this case (Secretary's brief at page 10). 3
Section 75.330 requires that ventilation control devices be
installed at a distance no greater than 10 feet from the area of
deepest penetration to which any portion of the face has been
advanced unless an alternative distance is specified and approved
in the ventilation plan. Section 75.330(b)(1) (ii) requires that
ventilation control devices be used to ventilate "any other
working places as required by the approved ventilation plan."
I am persuaded by Contestant's brief at pages 3-5 that
section 75.330(b) (1) (i) and 75.330(b) (2) are not applicable to
this case. When the continuous mining machine backs up in the
straight, the area of deepest penetration ceases to be a "working
face." 4 Thus, I conclude that there is no general rule
indicating that it is necessary to maintain ventilation control
devices at any particular distance from the area of deepest
penetrati on when the mining machine is cutting a notch or
cros scut 76 feet outby that location.
The requirements of section 75 . 330(b)(1) (ii) are somewhat
circular as applied to this case. If Contestant had submitted a
plan requiring that ventilation controls be mainta~ned within a
certain distance of a "working place," that requirement would be
binding on Old Ben. However, if such a requirement were forced
upon Contestant through the mechanism of the plan approval
process, the Secretary would have to demonstrate its suitability.

3

Secti on 75. 333(g) provides :
Before mining is discontinued in an entry or room that
is advanced more than 20 feet from the inby rib, a
crosscut shall be made or line brattice shall be
installed and maintained to provide adequate
ventilation . ..

The parties appear to agree that the word "discontinued" means
permanent cessation of mining in an area, not the movement of a
mining machine out of an area temporarily to extract coal at
another location to continue the mining cycle {Contestant's brief
at 10-12, Secretary's brief at 10).
4 "Working

face" is defined in MSHA's regulations as any
place in a coal mine in which the work of extracting coal from
its natural deposit in the earth is performed in the mining
cycle. "Working place" is defined as the area of a c~al mine
inby the last open crosscut, 30 C.F.R. § 75.2 .
~

2 1 76

If the Secretary desires to prohibit the mining practice
represented by Exhibit C-4, he would have to do so through notice
and comment rulemaking. There is nothing about the conditions at
the Spartan mine, or about a number of mines that· are similarly
situated, that would warrant a prohibition of this practice at
the Spartan mine while allowing it at many or all other mines.
Peabody Coal Company, 15 FMSHRC 381, 386 (March 1993).
CONCLUSION AND ORDER
For the reasons stated herein I vacate citation No. 4050921.

ar~~~

Art~;: Amchan
Administrative Law Judge
703-756-6210

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department
of Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)
Timothy Mo Biddle , Esq ., Crowell & Moring, 1001 Pennsylvania
Ave . , N. W., Washington ~ D o C. 20004 - 2595 ( Certified Mail )
Thomas Lo Clarke , Esq ., 50 Jerome Lane , Fairview Heights , IL
62208 (Certified Mail)

/jf

2177

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303- 844-5267/FAX 303- 844- 5268

OCT 2 7 199f
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of
ROBBIE A. SMITH,
Complainant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEST 94-711-D
Centralia Gold Mine

v.

Mine I.D . 45- 00416

CENTRALIA MINING COMPANY, INC .,
Respondent
ORDER OF DISMISSAL
Before:

Judge Morris

The parties filed a joint settlement agreement together with
a joint motion to dismiss.
For good cause shown, the settlement agreement is APPROVED
and the case is DISMISSED .

Qu__

r~~~~

Law Judge

Ll~ stribution:

Jay Williamson, Esq., Office of the Soli citor, U.S . Department of
Labor, 1111 Third Avenue, suite 945, Seattle, WA 98101-3212
Tel. 206- 553 - 0940 FAX 206- 553 - 2768
(Certified Mail)
Thomas c. Means, Esq., CROWELL & MORING, 1001 Pennsylvania
Avenue, N.W., Washington, DC 20004 - 2595 Tel. 202 - 624-2500
FAX 202 - 628- 5116 (Certified Mail)
/ek
2178

OFFICE OF ADMINISTRATIVE L.A\l JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PllC£
FALLS CHURCH, VIRGINIA 22041

OCT 2 7 199f
SECRETARY OF LABOR,
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

:

. CIVIL PENALTY PROCEEDING

CATENARY COAL COMPANY,
Respondent

.

:
:

.

Docket No. WEVA 94-237
A.C. No. 46-08146-03505

... Campbells Creek Surface
... Facilities
DECISION

Appearances:

Patrick L. DePace, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Petitioner;
Frenchette c. Potter, Esq., St. Louis, Missouri,
for the Respondent.

Before:

Judge Melick

This case is before me pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801,
et seq., the "Act," to challenge a citation issued by the
Secretary of Labor against Catenary Coal Company (Catenary)
f or one violation of the standard at 30 C.F.R. § 77.1600(b).
The general i ssue before me is whether there was a violation
as alleged and , i f so , what is the appropriate civil penalty
for that violation. Additional specific issues are addressed
as noted.
The citation at issue 6 No. 3743671 6 alleges a "significant
and substantial" violation of the noted standard and charges as
f ollows:
It was revealed during a fatal powered haulage
accident, that standardized traffic rules and
warning signs had not been posted along the roadways to warn drivers to use lower gears, to travel
at slow speeds, to indicate proper CB channel to
monitor, and to warn that specific locations are
only suitable for one way traffic. This condition
was one of the contributing factors to the issuance
of Imminent Danger Order No. 3743670 therefore no
abatement time is set.

2179

The cited standard provides that "[t]raffic rules, signals
and warning signs shall be standardized at each mine and posted."
Two haul roads at the Campbells Creek Surface Facilities
are at issue. The Point Mine Road runs from the Ca.mpbells
creek No. 3 Mine approximately .4 miles to the ca.mpbells
Creek Preparation Plant over a 12 percent average downgrade.
On April 23, 1993, there were no signals or warning signs anywbere on that road. The Winchester Mine Road runs approximately
2.3 miles from the Campbells Creek No. 2 Mine to the Campbells
Creek Preparation Plant and over an average downgrade of 13.24
percent. on the Winchester Mine Road there was a section
approximately 3,800 feet long, having a maximum downgrade of
17 percent. As of April 23, 1993, there were five signs posted
along this road (identified on Respondent's Exhibit No. 1 with
blue "X"s). The location of the signs and the captions on the
signs are not in dispute. Near the Winchester Mine there was
a sign captioned "speed 25 limit." Approximately two-thirds of
the way down the Winchester Mine Road there was a yield sign and
a sign labeled "one lane traffic loaded trucks have rt. of way"
(Gov't Exhibit No. 3). At the bottom of the Winchester Mine road
and facing uphill was a sign "CB 18 channel" and a "stop" sign.
Mine Safety and Health Administration (MSHA) Coal Mine
Inspector Paul Hess, Jr. conducted an investigation on April 23,
1993, of a fatal accident at the subject complex. He issued the
citation at bar upon his belief that the signage at the mine was
inadequate. The 25-mile-per-hour speed limit was, according to
Hess, too fast for loaded coal trucks and, in particular, much
too fast for loaded trucks in the downgrade area. Truck drivers
interviewed by Hess, reported they ordinarily drove only five to
15 mi les-per-hour on this road.
Hess further opi ned that the s i gn designating "one lane
t raffic loaded trucks have rt of way" was not readily visible
and could be read only if you were close to it. In addition,
Hess found that a sign should have been at the bottom of the
hill where the Winchester Road intersects near the preparation
p lant identifying the proper CB channel to be monitored. He
believed that the existing sign was facing the wrong way on
Winchester Road. Hess also opined that a sign was needed to
warn drivers against shifting gears while proceeding downhill.
He testified that if you are unable to engage a gear in the
shifting process on the "Autocar" haul trucks and your speed
builds up, the service brakes may not be sufficient to stop
on the downgrade. I accept the testimony of Inspector Hess
and find that .t he violation existed as charged.
Hess opined that the violation was also "significant
and substantial."
A violation is properly designated as
"significant and substantial" if, based on the particular
facts surrounding that violation, there exists a rea~onable

2 1 80

likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature. Cement
Division. National Gypsum co., 3 FMSHRC 822, 825 (1981).
In Mathies Coal Co., 6 FMSHRC 1,3-4 (1984), the Commission
explained:
In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety
standard, (2) a discrete safety hazard -- that is,
a measure of danger to safety -- contributed to by
the violation, (3) a reasonable likelihood that the
hazard contributed to will result in an injury, and
(4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(1987) (approving Mathies criteria).
The third element of the Mathies formula requires that
the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an
injury (U.S. Steel Mining Co., 6 FMSHRC 1834, 1830 (1984), and
also that the likelihood of injury be evaluated in terms of continued normal mining operations. U.S. Steel Mining co., Inc.,
6 FMSHRC 1473, 1574 (1984); see also Halfway. Inc., 8 FMSHRC 8,
12 (1986) and Southern Oil coal Co., 13 FMSHRC 912, 916-17
(1991).
I n this regard, Hess testified that without warning
signs and proper reminders, there was a particular danger to
new drivers unfamiliar with the mine property. Bess was
particularly concerned with the sign indicating the rightof-way for loaded trucks. Hess believed that the fatal
haulage accident that occurred on April 23, 1993, was caused
by the driver's attempt to shift gears on the downgrade and
h is inability to engage a gear thereby resulting in a runaway
truck. Bess opined that fatal injuries were indeed highly
l ikely with a resulting run-away truck. More particularly,
Hess testified that the fatality was the result of the truck
out-of-gear and losing control. This conclusion was the result
of examination of the truck's gears, which were neither scorched,
discolored nor chipped and interviews of witnesses that the truck
was moving at 70 to 80 miles per hour when it struck the coal
stockpile . .
Bess acknowledged that he attributed only low negligence
to the operator because of frequent prior inspections by MSHA
at this mine without any indication or citations for inadequate
signage. The operator had not previously been cited·.for any

2181

similar violations and indeed it is stipulated that, while
Respondent is a large operator, it has an "excellent history."
Hess also attributed low negligence to the operator because
of the acknowledged ambiguity and lack of clear g'Uidance in
the cited standard.
I agree with the inspector's assessment that a violation
occurred and that the violation was "significant and
substantial." In particular, a new driver at the mine site
would not on April 23, 1993, have been warned of any hazards
on the Point Mine Road since no signs then existed. On the
Winchester Road, there were seriously deficient signs. The
25-mile-per-hour speed limit sign could easily have lulled a
new driver into exceeding a safe speed. It is undisputed that
this speed well exceeded the safe limits on the downgrade section
of the haul road. In addition, I accept the inspector's credible
testimony corroborated by the photograph in evidence (Exhibit
No. 3), that the sign indicating "one lane traffic loaded trucks
have rt. of way" was too small to be readily observed (Gov't
Exhibit No. 3). Moreover, there were no signs warning new truck
drivers not to change gears in the approaching downgrade of the
Winchester Mine Road. It may reasonably be inferred from the
investigation conducted in part by I~pector Hess that indeed the
fatal haulage accident at that location was caused by an attempt
to change gears while proceeding into that downgrade.
Finally, it may reasonably be inferred that confusion
could have been engendered by the absence of signs to indicate
the appropriate CB channel for drivers to monitor. This
confusion could very well have been furthered by the "hazard
training" program at the subject mine and in particular the
c ontradictory terms of Item No . 16 of that program which
i ndicates as follows : "Citizen band channel 16 is utilized by
o ff-road haulage trucks . Citizen band channel 18 is utilized
by the Prep. Plant and on road haulage trucks while on the
property" (Respondent's Exhibit No. 3).
I n reaching the above conclusions , I have not disregarded
the Respondent's argument that the hazard training document
( Respondent's Exhibit No. 3) would have sufficiently warned
new truck drivers of the hazards on the haulage roads at the
mine prior to April 23, 1993. I simply disagree with this
argument. In particular, the ambiguities, if not contradictions,
in the hazard training document (see Statement Nos. 4, 11 and
16) could easily lead to confusion in the traffic rules further
aggravating the absence of appropriate signs.
In proposing a penalty in this case however I give significant weight to the fact that MSHA had frequently inspected this
mine without any indication or citations for inadequate signage
and to Inspector Hess' admission that the cited regulation was
both ambiguous in its requirements and provided littl-e guidance

2182

to mine operators. In King Knob Coal Co., Inc., 3 FMSHRC 1417,
1422 (1981), the Commission held that unclear or confusing MSHA
policies may be a factor mitigating operator negligence. In the
instant case, the lack of clear guidance and the .ambiguities in
the Secretary's regulation and his lack of prior enforcement
may similarly be considered in mitigating operator negligence.
Within this framework and considering all of the criteria under
section 110(i) of the Act, including the stipulation that this
operator has an "excellent history," I conclude that a civil
penalty of $250 is appropriate for the violation.
ORDER

Citation No. 3743671 is AFFIRMED and catenary Coal Company
is hereby ordered to pay a civil penalty of $2
within 30 days
of the date of this decision.

Distribution:
Patrick L. DePace,

U. S. Department of Labor, 4015 Wilson

Arlington , VA 22203 (Certified Mail)

516,

Frenchette Co Potter , Esq. , CityPlace One , Suite 300 ,
St o Louis , MO 63141 ( Certified Mail)
/ lh

2183

OFFICE OF ADMINISTRATIVE LM1 JUDGES

2 SICYLINE, 10th FLOOll
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

OCT 3 1 1994
UNITED MINE WORKERS OF
AMERICA ON BEHALF OF
LOCAL 5817,
Complainants
v.
MUTUAL MINING INCORPORATED,
Respondent

. COMPENSATION PROCEEDING
.
. Docket No. WEVA 94-284-C
.
.
. Mutual No • 1 Mine
.
..

DEFAULT DECISION

Before:

Judge Melick

on August 1, 1994, Respondent, Mutual Mining Incorporated,
was ordered to file an Answer to the Complaint for Compensation
within 30 days of that date or show good reason for failing to
do so .
To date no response to the above order has been received.
Accordingly, Respondent is in default and is hereby ORDERED
to pay compensation within 30 days of the date of this order
to the miners listed in Exhibit "E" attached to the complaint
for Compensation and in the amounts enumerated, plus interest
to the date of payment, calculated in accordance with the
f ormula set forth by the commission in Secretary on behalf
o f Bailey Vo Arkansas-Carbona co., 5 FMSHRC 2642 1983 ) and
a s applicable , Loe. U. 2274. UMWA v . Cli ch · ld
al Co. ,
10 FMSHRC 1 493 ( 1988 ) u aff' d sub nom. Cl i hfie
Co. V o
FMSHRC, No . 88-1873 (D.c . Cir., Febru
9, 1990 •

ick
ative
Distributi on :
Judith Rivlin, Esq., United Mine Workers of America,
900 Fifteenth st., N.W., Washington, o.c. 20005 (Certified Mail)
Allen Roe, Superintendent, Mutual Mining Inc., Route 1,
Box 695, Sandy Hook, KY 41171 (Certified Mail)
/ lh
2184

J'BDBRAL llDIE SAFETY DD BEAL'l'B RBV:IBW COHlllSS:IOB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

OCT 3 1 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ex rel., DALE BEERS,
ROY HARVEY, HUGH KELLS
AND LARRY ROUGEAUX, ON
BEHALF OF MIDNIGHT AND
DAYSHIFT MINERS,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. PENN 94-281-D
PITT CD 93-18
:

Urling No. 1 Mine

.

KEYSTONE COAL MINING CORP.,
Respondent
DECISION APPROVING SETTLEMENT

Before:

Judge Fauver

This is an action for back pay, based upon an alleged act of
discrimination under § 105(c} of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq.
The parties have moved the judge to approve a settlement
agreement in which the miners named in the settlement shall be
paid the back pay agreed to .
I have considered the reasons and documentation submitted
and I conclude that the proposed- settlement is consistent with
the purpose of § 105(c) of the Act. Accordingly, the settlement
i s approved .
ORDER

1 . The motion to approve a settlement is GRANTED.
2 . The parties shall promptly comply with all of the terms
of · the settlement.
3. Based upon the above, this proceeding is DISMISSED.

w~~v~
William Fauver
Administrative Law Judge
2185

Distribution:
Maureen A. Russo, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, Room 14480-Gateway _Building,
Philadelphia, PA 19104
R. Henry Moore, Esq., Buchanan Ingersoll, PC, usx Tower, 57th
Floor, 600 Grant Street, Pittsburgh, PA 15219
/lt

218 6

ADMINISTRATIVE LAW JUDGE ORDERS

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

20006

October 4, 1994

SOUTHWESTERN PORTLAND
CEMENT COMPANY,
Contestant

CONTEST PROCEEDING

.

Docket No. CENT 94- 239 - RM
Citation No. 4117681; 7/27/94

:

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

Odessa Plant
Mine ID 41-00060

ORDER DENYING MOTION TO STAY
ORDER DENYING MOTI ON TO EXPEDITE
ORDER OF ASSIGNMENT
The above-captioned action is a notice of contest filed by
the operator under section 105{d) of the Federal Mine Safety and
Health Act, 30 U.S.C . § 815{d), challenging the issuance of a
104{d) (1) unwarrantable failure citation .
On September 16, 1994, the Solicitor filed his answer and a
motion for continuance until the related penalty proceeding is
filed.
On September 19, 1994, the operator filed an opposition to
the motion for continuance and a motion for expedited hearing
pursuant to 29 C.F . R. § 27 00 .52 (a) . The operator asserts that
because of the unwarrantable failure finding it is exposed to
e levated enforcement actions under section 104(d) of the Act, it
wil l be subject to a possible special investigation under section
llO{c) of the Act, and the violation will receive a special
assessment which will result in elevated penalties.
Section 2700.52{a) , supra , does not specify the basis upon
which an expedited hearing may be sought and granted.
The
Commission has held that consideration of an expedited hearing
request remains within the discretion of the judge. Wyoming
Fuel, 14 FMSHRC 1282 (August 1992). Commission Judges have held
that in order to be entitled to such consideration, an operator
must show extraordinary or unique circumstances resulting in
continuing harm or hardship . Consolidation Coal Company, 16
FMSHRC 495 (February 1994); En ergy West Min ing Compan y , 15 FMSHRC
2223 {October 1993); Pittsburgh and Midway , 14 FMSHRC 2136
(December 1992) ; Medicine Bow Coal Company, 12 FMSHRC 904 {April
1990) . In the foregoing cases , it was held that the possibility
operators could be subject to withdrawal orders und~r section
104{d) of the Act, 30 u.s .c. § 815{d), did not justify expedited
hearings. I concur with t h ese holdings and note in addition that
so many of the cases that are filed with the Commission involve
104(d) citations and orders, that it would be impossible to hold

21S7

expedited hearings in all of them. The operator in the instant
matter has offered the same arguments that were rejected in the
cases noted above .
However , the operator's assertion that this matter should
not be stayed is well taken. Because of the operator's potential
exposure to a 104(d) chain, this case should not be stayed the
several months i t takes for a penalty to be assessed and a
petition filed.
In light of the foregoing, it is ORDERED that the
Solicitor's motion for continuance be DENIED.
It is further ORDERED that the operator ' s motion for
expedited hearing be DENIED.
It is further ORDERED that this case be assigned to
Administrative Law Judge Manning.
All future communications regarding this case should be
addressed to Judge Richard W. Manning at the following address:
Federal Mine Safety and Health
Review commission
Office of Administrative Law Judges
Colonnade Center
Room 280, 1244 Speer Boulevard
Denver, co 80204
Telephone No . 303 - 844-3577

Paul Merlin
Chief Administrative Law Judge
Distribution :
William K. Doran, Esq., Smith, Heenan & Althen, 1110 Vermont
Avenue, NW, Washington, DC 20005
Jack F. Ostrander, Esq., Office of the Solicitor, U. S. Department
of Labor , 525 Griffin Street, Suite 501, Dallas TX 75202
/gl

2188

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

20006

October 4, 1994

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

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

.
.
:
.
.
.
.

Docket No. KENT 94-294A. C. No. 15-17134-03514
No. 4 Mine

.

.
.
..
.

v.
ENVIRONMENTAL MINE SERVICES,
Respondent

CIVIL PENALTY PROCEEDING

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 94-324
A. C. No. 15-17143-03501 KJS
No. 4 Mine

..
...
.
..

Docket No. VA 9~-32
A. C. No. 44-06596-03501 KJS
Docket No. VA 94-33
A. C. No. 44-06395-03502 KJS
No. 2 Mine

.
:
g

.
g

Docket No. VA 94-34
Ao Co No . 44-06210-03501 KJS
No. 9 Mine

Docket No. VA 94-37
No. 44-04703-03501 KJS

Ao C.

.
0
0
0

No.

1

Mine

Docket No. VA 94-38
A. C. No . 44-03465-03501 KJS

0
0

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

v.
C & S COAL COMPANY,
Respondent

.:
.
.
.
.
.
.
.
.

2189

No. 3 Mine

CIVIL PENALTY PROCEEDING
Docket No. VA 94-27
A. C. No. 44-03465-03534
No. 3 Mine

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

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

..
.
.
.:
.
.
..
.
.
..
..
.

CIVIL PENALTY PROCEEDING
Docket No. VA -94-28
A. C. No. 44-06210-03527

No. 9 Mine

CIVIL PENALTY PROCEEDING
Docket No. VA 94-29
A. C. No .

44-06395-03569

No. 2 Mine

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

v.
BLANKENSHIP AND RIFE
INCORPORATED,
Respondent

.
..
..:
.:
.
.

CIVIL PENALTY PROCEEDING
Docket No. VA 94-30
A. C. No. 44-06596-03579
No. 2 Mine

0

0
0
0

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

0
0

CIVI L PENALTY PROCEEDING

0
0

.
0

Docket No. VA 94-36
A. C. No. 44-04703-03578

:

No o 1 Mine

Vo

HIGHLANDER COAL CORPORATION ,
Respondent

0
0

0
0

ORDER TO SUBMIT INFORMATION
On August 18 , 1994, the Solicitor filed a letter requesting
that the stays in Kyn Coal company, Docket No. Kent 94-294 and
Environmental Mine Seryices, Docket Nos. KENT 94-324, VA 94-32,
VA 94-33, VA 94-34, VA 94-37, and VA 94-38 be lifted, and that
the remaining dockets, c & s Coal company, Docket No. VA 94-27;
Eastern Coal Company, Docket No. VA 94-28; Brent Coal Company,
Docket No. VA 94-29; Blankenship & Rife Inc., Docket No. VA 9430; and Highlander coal Corp., Docket No. VA 94-36, not be

2190

stayed. A copy of the letter was sent to counsels for the
operators.
on April 13, 1994, I issued an order of stay in Kyn Coal
~, pending a decision in the case specific trial in
Keystone
Coal Company, PENN 91-451-R et. al. A decision on the common
issues had been previously rendered. 15 FMSHRC 1456 (July 1993).
It appeared that the decision in Keystone coal would be of some
guidance in these matters. The cases involving Environmental
Mine Services were stayed for the same reason. Thereafter, on
April 20, 1994, a decision was issued in the case specific trial
in Keystone Coal Company. 16 FMSHRC 857. And on May 27, 1994,
the Commission granted review in IN RE: CONTESTS OF RESPIRABLE
DUST SAMPLES ALTERATION CITATIONS, Master Docket No. 91-1 and
Keystone Coal Mining Corporation, Docket Nos. PENN 91-451-R et
al., involving both the common issues and mine-specific decisions. By order dated August 31, 1994, I granted the Secretary's
motion to stay all cases in the master docket except for those on
appeal to the commission.
The Solicitor's letter in the instant cases states that the
ultimate disposition in the cases now before the Commission will
not affect the outcome of these cases because the respirable dust
filters and the abnormal appearances are differen~ than those in
Keystone. I do not believe the specific outcome in these cases
must depend upon the Commission's decision in Keystone in order
for a stay to be appropriate. It is my belief that determinations by the Commission on matters such as burden of proof and
expert testimony would be of assistance in these cases. However,
the operators have not been heard from with respect to a stay.
In light of the foregoing , it is ORDERED that within 30 days
t he operators submit their views on whether or not these cases
s hould be stayed .

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Edward H. Fitch, Esq., Trial Attorney, Stephen D. Turow, Esq.,
Office of the Solicitor, u. s. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
Steven and Yvonne Rife, Environmental Mine Services, P.
567, Hurley, VA 24620

219 1

o. Box

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

20006

October 5, 1994

CIVIL PENALTY PROCEEDING

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

v.
LONG BRANCH ENERGY,
Respondent

Docket No . WEVA 94- 236

A. C. No . 46-07857-03538

..

Mine No. 14

ORDER ACCEPTING LATE FILING
ORDER OF ASSIGNMENT

On July 26, 1994, the Solicitor filed the penalty petition
in the above-captioned case. On August 24, 1994 , the operator
filed its answer to the penalty petition and a motion to dismiss
because the penalty petition was untimely. On September 7 , 1994,
the Solicitor filed a response in opposition to the operator ' s
motion to dismiss~
Commission Rule 28 requires that the Secretary file the
penalty petition within 45 days of the date he receives an
operator ' s notice of contest for the proposed penalty.
29 C . F . R . § 2700 . 28. The Secretary received the operator ' s
notice of contest on April 19, 1994, and the penalty petition
was due June 3 , 1994 . The petition was sent by certified mail
on July 25 , 1994 and received at the Commission on July 26. It
was therefore, 52 days late .
The Commission has not viewed the 45 day r equirement as
jurisdictional or as a statute of limitation. Rather, the
Commission has permitted late filing of the penalty petitions
upon a showing of adequate cause by the Secretary and where there
has been no showing of prejudice by the operator. Salt Lake
County Road Department, 3 FMSHRC 1714, 1716 (July 1981); FbonePoulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1989).
The Solicitor's response to the motion to dismiss represents
that the delay occurred because the case was not sent to his
office until July 22 , 1994 . This was caused by an oversight in
the handling of this case by the Office of Assessments which is
implementing a n ew procedure for handling penalty assessments.
The Office of Assessment s sent its portion of the case file to
the wrong MSHA Field Off ice and the error was not discovered
until July 19, 1994. The Solicitor attached a copy of a memorandum from c. Bryon Don, Chief of the Civil Penalty Compliance
Office of MSHA's Office of Assessment which sets forth in detail
the n e w assessment procedure and the cause for delay in this
2192

case. I find these circumstances constitute adequate cause for
the delay in the filing of the penalty petition.
The operator alleges that it has been prejudiced by the
Secretary's delay in filing because the mine area involved in the
citation was abandoned on June 21, 1994, after the due date for
filing the petition. I do not find this circumstance prejudicial
to the operator's ability to defend itself against the charge of
an unguarded trolley wire. Witnesses can still testify about
conditions on the day the citation was issued.
In light of the foregoing, it is ORDERED that the operator ' s
motion to dismiss be DENIED.
It is further ORDERED that the late filed penalty petition
be ACCEPTED.
This case is hereby assigned to Administrative Law
Judge Gary Melick.
All future communications regarding this case should be
addressed to Judge Melick at the following address:
Federal Mine Safety and Health
Review Commission
Office of Administrative Law Judges
Two Skyline Place, Suite 1000
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-6261

\ \~
-~ ~ ~

Paul Merlin
Chief Administrative Law Judge

Distribution :

(Certified Mail)

Javier I. Romanach, Esq., Office of the Solicitor, U. s. Department of Labor, Suite 516, Ballston Towers #3 , 4015 Wilson Boulevard , Arlington, VA 22203
Mr. Gregory D. Patterson, Long Branch Energy, P.
Danville, WV 25053

/gl

2193

o. Box 776,

PBDBRAL JlDlB SUETY UD BEAL'l'll RBV:IB1f COJllUSSXOB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

OCT 1 1 7~0!
MINGO LOGAN COAL CO.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Respondent

CONTEST PROCEEDING
Docket No. WEVA 93-36-R
Order No. 3350011; 10/2/92
:

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 94-61
A.C. No. 46-06958-03565
:

MINGO LOGAN COAL CO.,
Respondent

Mountaineer Mine

..

DECISION DENYING MOTION
TO APPROVE SETTLEMENT

Before:

Judge Fauver

These cases i nvolve a petition for civil penalties and a
c ontest o f a § 107(a) order under § 105(d) of the Federal Mine
Safety and Health Act of 1977 , 30 u.s . c . § 801 et seq.
The parties have filed a motion for approval of a settlement
agreement to vacate the § 107(a) order, convert § 104(d) (2) Order
No . 3350012 to a § 104(a) citation , vacate § 104(d) (2) Order No o
3350013 , vacate § 104(a ) Citation No. 3350014 , and reduce
p roposed civil penalties of $70,000 to $10,000 .
I have considered the representations and documentation
submitted and conclude that the proposed settlement, with the
exception of the conversion of Order No. 3350012 and reduction of
penalties to $10,000, is consistent with the criteria in § llO(i)
of the Act.
Order No. 3350012
The settlement motion states that on September 4, 1992, a
fatal machinery accident occurred on the surface of the
Mountaineer Mine, operated by Mingo Logan Coal Company. The
victim, David A. White, longwall foreman, was in the process of
manually collapsing longwall shields that had been set up on the
surface for demonstration and training purposes. White attempted
to block one of the canopies with a forklift, and then positioned
himself under the canopy between the linkage bars and hydraulic
jacks. He then removed the hydraulic staple lock and pressure
2194

relief valve capsule from the rear canopy tilt jack.
the canopy collapsed on him, crushing him to death.

The rear of

On October 2, 1992, MSHA Inspector Davis is~ued § 104(d) (2)
Order No. 3350012, charging a violation of 30 C.F.R. § 77.405(b)
for failing to securely block the canopy that crushed Mr. White.
Inspector Davis found that this was a significant and
substantial violation. He also found that the violation was due
to a high degree of negligence and reflected an unwarrantable
failure to comply with a mandatory safety standard. Mingo Logan
abated the violation by retraining all longwall miners in safe
methods for operating and handling longwall shields. A civil
penalty of $35,.000 was proposed for thi s order.
Mingo Logan does not contest the violation. Nor does it
dispute Inspector Davis' determinations that the violation
significantly and substantially affecte d the safety of employees
and that the fatality occurred as a result of this violation.
However, Mingo Logan disputes Inspector Davis' determination that
the violation was the result of a high degree of negligence and
reflected an unwarrantable failure to comply with a mandatory
safety standard. Mingo Logan asserts that the victim was a
longwall foreman who had extensi ve experience manually collapsing
longwall shields from prior employment and had also safely
manually collapsed several other shields on the day of the
fatality. Mingo Logan also asserts that on the day of the
fatality, the victim had collapsed other shields that required
additional effort before they would completely collapse, and he
may have had a reasonable belief that the shield in question
would not collapse completely, particularly when blocked with a
f orklift . Mingo Logan contends that the victim's conduct, while
c learly a mistake i n judgment , did not rise to the level of
aggravated conduct and , therefore , did not reflect a high degree
of negligence or an unwarrantab l e failure to comply with a
mandatory safety standard.
The motion further states that counsel for the Secretary has
c oncluded that the evidence at trial may not establish that the
v i ctim's actions reflected a high degree of negligence or an
unwarrantable failure to comply with a mandatory safety standard.
The parties propose to settle this violation by converting
Order No. 3350012 to a § 104(a) Citation, modifying the
allegation to charge moderate negligence instead of a high degree
of negligence, and reducing the civil penalty from $35,000 to
$10,000.
I find that the motion does not state facts sufficient to
conclude that the attempted use of a forklift to block a longwall
canopy was only ordinary negligence. The forklift did not hold,
and the foreman was killed as a result of his misjudgment that it
would hold. Because of the extreme safety risk involved in
substituting a forklift for proper blocking devices, the facts
point to gross negligence and an unwarrantable violation.
Accordingly, in the absence of adequate evidence to reduce the
2195

charge, I deny the motion to convert Order No. 3350012 to a §
104(a) citation and to reduce the penalty to $10,000. Based upon
the facts indicated, I would approve a settlement of $20,000 for
this violation without modifying the § 104(d) (2) order.
ORDER

1. As presently written, the motion to approve a settlement
is DENIED.

2. The parties may amend the settlement motion consistent
with this decision or the cases will proceed to hearing.

William Fauver
Administrative Law Judge
Distribution:
Patrick L DePace, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)
David J. Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston,
WV 25322 (Certified Mail)
/ lt

2196

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

20006

October 20, 1994
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 94-623-M
A.C. No. 45-03184 - 05528 - A

v.
EUGENE RUSSELL, ERVIN E.
NICHOLS, JAMES M. DODD,
REYNOLD E. CHANNER, AND
SCOTT FURMAN EMPLOYED BY
ECHO BAY MINERA.LS COMPANY,
Respondents

.

Docket No. WEST 94-624-M
A. C. No. 45-03184-05529-A
Docket No. WEST 94-625-M
A. C. No. 45-03184-05530-A

:

Docket No. WEST 94-626-M
A. C. No. 45-03184-05531-A
Docket No. WEST 94-627-M
A. C. No. 45-03184-05532-A
Overlook Mine Site

ORDER
The above captioned cases are petitions for the assessment
of civil penalties filed by the Secretary of Labor against the
named individuals under section llO(c) of the Act. The related
section llO(a) case is presently assigned to Administrative Law
Judge John J . Morris.
On October 12, 1994, Judge Morris issued an order in the
llO(a) case denying the operator 's motion to dismiss the Secretary's penalty petition on the ground that it was untimely .
Counsel for respondents who represents the operator in the llO(a)
matter, has now filed a motion to dismiss the instant cases on
the basis that they were not timely .
In addition, by letter
addressed to me dated October 18, 1994, counsel has requested
that I rule on the merits of the dismissal motion before .assigning the case. Counsel asserts that the findings in Judge Morris'
Order may predispose him to deciding the timeliness issue against
the individuals. On October 20, 1994, the Solicitor filed a
letter objecting to counsel's request.
Respondents' counsel
submitted a further letter on October 20.
The request of counsel cannot be granted. As her brief
demonstrates, the issue of untimeliness in these llO{c) cases
raises matters that are separate and distinct from those that
arose in the llO(a) action. The circumstances and questions
presented with respect to the individuals are not the same as
those previously considered by Judge Morris. Moreover, there is
nothing in the judge's order dated October 12 which would disqualify him from ruling upon the motion in these cases .
He made

2197

no determination regarding the status of the respon dents , but
merely pointed out that for purposes of deciding whether or not
the operator had been prejudiced by delay, person? other than the
deceased general mine foreman would be available to testify .
In light of the foregoing , counsel ' s request is DENIED. A
separate assignment order will be issued .

---Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Stephen D. Turow, Esq., Office of the Solicitor, u. s . Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Laura B. Beverage , Esq . , Jackson & Kelly, Suite 2710, 1660
Lincoln Street, Denver, co 80 2 64
/ gl

o U.S. GOVERNMENT PRINTING OFFICE: t 994-3 8 7 - 7 2 OI 2 3 3 7 9

2198