APRIL 1989
COMMISSION DECISIONS
04-04-89
04-07-89
04-07-89
04-07-89
04-24-89

Sec. Labor for Roger Lee Wayne, Sr. v. Consolidation
Coal Company
Camp Fork Fuel Company
Kenneth Howard v. B & M Trucking
Coal Junction Coal Company
Mid-Continent Resources, Inc.

WEVA 87-89-D

Pg. 483

KENT 88-178
KENT 89-2-D
PENN 88-260
WEST 85-19

Pg. 496
Pg. 499
Pg. 502
Pg. 505

ADMINISTRATIVE LAW JUDGE DECISIONS
04-04-89
04-05-89
04-06-89
04-06-89
04-06-89
04-06-89
04-07-89
04-07-89
04-'07~89

04-11-89
04-12-89
04-12-89
04-12-89
04-14-89
04-14-89
04-14-89
04-17-89
04-17-89
04-17-89
04-20-89
04-21-89
04-24-89
04-24-89
04-24-89
04-24-89
04-26-89

Urralburu Mining Company
George H. Adkins v. Bob & Tom Coal, Inc.
Rushton Mining Company
Roger L. Stillion v. Quarto Mining Company
Rodney Chaney v. Johnny Tackett(Gillette Coal Co.)
Local 1570, Dist. 31, UMWA v. Eastern Associated
Coal Corporation (not final)
Donald F. Denu v. Amax Coal Company
Super Block Coal Corporation
Pomerleau Brothers, Inc.
Sterling Energy, Inc.
Utah Power & Light Company
Sec. Labor for William J. Keller v. Consolidation
Coal Company
Paula L. Price v. Monterey Coal Company
Martin Marietta Aggregates
Herbert M. King v. Shamrock Coal Company
Shamrock Coal Company
Robert Young v. Lehigh Portland Cement Co.
B and D Coal Company, Inc.
Energy Fuels Coal, Inc.
Moniteau County Commission
Local 9909, Dist. 31, UMWA v. Cdnsolidation Coal Co.
LeBlanc's Concrete & Mortar Sand Co.
Green River Coal Company
IMC Fertilizer, Inc.
Utah Power & Light Company
Associated Electric Cooperative Inc.

WEST 88-254-M Pg. 515
KENT 88-180-D Pg. 518
PENN 89-82-R
Pg. 519
LAKE 88-91-D
Pg. 523
KENT 88-82.-D
Pg. 529
WEVA 88-227-C Pg. 531
LAKE 88-123-D Pg. 563
Pg. 564
LAKE 88-79
YORK 89-8-M
Pg. 569
KENT 88-103
Pg. 571
WEST 89-160-R Pg. 586
WEVA 88-202-D Pg. 607
LAKE 86-45-D
SE
88-87-M
KENT 88-179-D
KENT 88-11
YORK 88-9-DM
SE
88-·53
WEST 88-168
CENT 88-148-M
WEVA 89-65-C
CENT 88-106-M
KENT 88-152
SE
88-94-M
WEST 89-161-R
CENT 88-89

Pg. 614
Pg. 633
Pg. 638
Pg. 639
Pg. 644
Pg. 651
Pg. 653
Pg. 657
Pg. 659
Pg. 660
Pg. 685
Pg. 706
Pg. 710
Pg. 731

WEST 88-347-M

Pg. 743

ADMINISTRATIVE LAW JUDGE ORDER
04-21-89

Calspar Division, Steelhead Resources, Inc.

APRIL 1989
Review was granted in the following cases during the month of April:
Kenneth Howard v. B & M Trucking Co., Docket No. KENT 89-2-D.
Dismissal of February 27, 1989)

(Judge Melick,

Secretary of Labor, MSHA v. Coal Junction Coal Co., Docket No. PENN 88-260.
(Chief Judge Merlin, Dismissal of February 27, 1989)
Secretary of Labor, MSHA v. Camp Fork Fuel Company, Docket No. KENT 88-178.
(Chief Judge Merlin, Settlement of March 15, 1989)
Cyprus Empire Corporation v. Secretary of Labor, MSHA, Docket No.
WEST 88-250-R, etc. (Judge Morris, March 20, 1989)
Review was denied in the following case during the month of April:
Arnold Sharp v. Big Elk Creek Coal Company, Docket No. KENT 88-165-D.
Koutras, March 20, 1989)

(Judge

COMMISSION DECISIONS

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

April 4, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of ROGER LEE
WAYNE, SR.
Docket No. WEVA 87-89-D

v.

CONSOLIDATION COAL COMPANY

BEFORE:

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

DECISION

BY:

Backley, Doyle, Lastowka and Nelson, Commissioners

This proceeding concerns a discrimination complaint filed by the
Secretary of Labor on behalf of Roger Lee Wayne, Sr., pursuant to the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1982)(the "Mine Act" or 11Act 11 ) . The complaint alleges that
Consolidation Coal Company ("Consol") violated section 105(c)(l) of the
Mine Act, 30 U.S.C. § 815(c), when it denied Wayne the opportunity to
participate in a post-inspection conference without a loss of pay. l/

ll

Section 105(c)(l) provides:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to this
[Act] because such miner, representative of miners
or applicant for employment has filed or made a
complaint under or related to this [Act], 'including
a complaint notifying the operator or the operator's

4S3

Commission Administrative Law Judge Avram Weisberger found that Consol
discriminated against Wayne in violation of section 105(c)(l) and
ordered Consol to reimburse Wayne for pay that Wayne lost as a result of
Consol's action. The judge also assessed Consol a civil penalty of $300
for the violation. 9 FMSHRC 1958 (November 1987)(ALJ). The Commission
granted Consol's petition for discretionary review. For the reasons
that follow, we reverse the judge's decision.
The essential facts are not in dispute. Wayne is a first class
mechanic employed on the day shift at Consol's Ireland Mine, an
underground coal mine located in Moundsville, West Virginia; he is a
member of the United Mine Workers of America ("UMWA" or "union"). At
the time of the events herein he was a member of the union safety
committee at the Ireland mine.
A mandatory safety standard requires that the Secretary approve
and the operator adopt a ventilation system and methane and dust control
plan suitable to the conditions and mining system of each underground
coal mine. 30 C.F.R. § 75.316 specifies that such plan "be reviewed by
the operator and the Secretary at least every 6 months." In preparation
for this mandated review, David Wolfe, an inspector and mine ventilation
specialist of the Department of Labor's Mine Safety and Health
Administration ("MSHA"), conducted a ventilation inspection at the mine
from March 3 through March 6, 1986, in order to determine whether the
mine's approved ventilation system and methane and dust control plan was
adequate and suitable under existing mining conditions. Following the
inspection, Wolfe arranged with Consol's superintendent of mines for a
ventilation plan review meeting to take place at the mine on March 25,
1986.
On March 24, 1986, Hestel Riggle, Consol's safety engineer, told
Wayne that the ventilation plan review meeting would be held on the
following day. Wayne responded that he would probably go with Riggle to
the meeting "because it was my shift." Tr. 84. According to Riggle,
the next day and prior to the commencement of the day shift at 8:00
a.m., Wayne informed Riggle that he was to be the representative of the
agent, or the representative of the miners at the
coal or other mine of an alleged danger or safety or
health violation in a coal or other mine, or because
such miner, representative of miners or applicant
for employment is the subject of medical evaluations
and potential transfer under a standard published
pursuant to section (101] of this [Act] or because
such miner, representative of miners or applicant
for employment has instituted or caused to be
instituted any proceeding under or related to this
[Act] or has testified or is about to testify in any
such proceeding, or because of the exercise by such
miner, representative of miners or applicant for
e~ployment on behalf of himself or others of any
statutory right afforded by this [Act].
30 U.S.C. § 815(c)(l)~

484

miners at the meeting. Riggle told Wayne that if he was needed as a
walkaround, he would be called to the meeting. Tr. 138; 9 FMSHRC at
1960.
On March 25, Inspector Wolfe arrived at the meeting site at
8:40 a.m. Wolfe noted that among those present from Consol in addition
to Riggle were Ray Temley, Mine Foreman; Kye Yavlak, Mine Engineer;
Steve Perkins, Environmental Control Specialist; Albert Aloio, Assistant
Mine Superintendent; and George Carter, Supervisor of Industrial and
Employee Relations. Among those present for the miners were: David
Shreve, UMWA International Safety Representative, and Bill Wise, Leo
Conner, and David Miller, members of the union safety connnittee.
Riggle asked Inspector Wolfe if a walkaround representative was
needed at the meeting. 1/ Wolfe responded that one was not needed as
the miners already had sufficient representatives. 9 FMSHRC at 1960.
2/
The term "walkaround" is used for convenience in reference to the
;ights granted miners' representatives under section 103(f) of the Mine
Act, which provides:
Subject to regulations issued by the Secretary, a
representative of the operator and a representative
authorized by his miners shall be given an
opportunity to accompany the Secretary or his
authorized representative during the physical
inspection of any coal or other mine made pursuant
to the provisions of subsection (a) of this section,
for the purpose of aiding such inspection and to
participate in pre- or post-inspection conferences
held at the mine. Where there is no authorized
representative, the Secretary or his authorized
representative shall consult with a reasonable
number of miners concerning matters of health and
safety in such mine. Such representative of miners
who is also an employee of the operator shall suffer
no loss of pay during the period of his
participation in the inspection made under this
subsection. To the extent that the Secretary or
authorized representative of the Secretary
determines that more than one representative from
each party would further aid the inspection, he can
permit each party to have an equal number of such
additional representatives. However, only one such
representative of miners who is an employee of the
operator shall be entitled to suffer no loss of pay
during the period of such participation under the
provisions of this subsection. Compliance with this
subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of
this [Act].
30 u.s.c. § 813(f).

485

Miller then requested of Carter that Wayne attend the meeting as the
designated representative of the miners. }/ Wolfe said that a
walkaround was not necessary at the meeting because the meeting was not
an inspection. Id. Carter then told Miller that Wayne could be brought
out of the mine but only on "union business."!!_/ Miller then insisted
that Wayne be notified to attend the meeting and Wayne was so notified.
Before he could arrive at the meeting site, however, both sides had
requested and obtained from Wolfe a postponement of the meeting. When
Wayne arrived at the meeting site, he was told by Carter that because he
had been called out of the mine on union business, he could not return
to work.
When Consol refused to pay Wayne for the remainder of his shift,
Wayne filed a complaint with the Secretary alleging discrimination under
section 105(c)(l) of the Act. Following an investigation by MSHA, the
Secretary filed with the Commission the discrimination complaint on
Wayne's behalf that is the subject of the present proceeding. The UMWA
intervened in support of Wayne and after an evidentiary hearing on the
merits, the judge issued his decision finding a violation by Consol of
section 105(c).
The administrative law judge concluded that the ventilation plan
review meeting was a "post-inspection conference" within the purview of
section 103(f) of the Act. 9 FMSHRC at 1962. The judge further
concluded that Wayne was the "authorized representative" of the miners
for participation in the March 25 conference and that his participation
in the conference was protected under section 105(c) of the Mine Act.
The judge noted the parties' stipulation that the safety committeeman
who was on the shift at the time of the post-inspection conference would
be the first choice as the authorized representative of the miners on
that shift; that Wayne, a safety committeeman, was working on the shift
during which the meeting occurred; and that Miller had requested that
Wayne be present at the meeting as the designated representative of the
miners. The judge concluded that although three other safety
committeeman were already at the meeting, Wayne was the "authorized"
representative of miners within the purview of section 103(f) of the
Act. 9 FMSHRC at 1962.
The judge also found that Wayne's loss of pay constituted an
adverse action and that Carter's refusal to allow Wayne to return to
work after the meeting had been postponed was an attempt to punish Wayne
for attempting to exercise his protected right to attend the meeting.
Therefore, the judge held that Consol unlawfully discriminated against
Wayne in violation of section 105(c)(l) of the Act when it refused to

11

At the hearing, the parties stipulated that a safety committeeman
working on the shift during which an inspection or conference occurred
would be the miners' f.irst choice as the authorized representative of
the miners on that shift. See 9 FMSHRC at 1959. Wise, Conner and
Miller worked on shifts other than the day shift.

!!_/
The term "union business" refers to a contractual right to an
excused, unpaid leave of absence to participate in union activities.

486

allow Wayne to return to work or to pay him.

9 FMSHRC at 1962-63.

On review, Consol raises a number of arguments in support of its
contention that the judge erred in finding that it unlawfully
discriminated against Wayne. Consol argues that the March 25 ~eeting
was not a "post-inspection conference" within the meaning of section
103(f) and, therefore, Wayne's participation in the meeting was not
protected activity. Consol also asserts that section 103(f) confers
upon the Secretary and her authorized representative wide authority and
discretion in interpreting and implementing walkaround rights, and that
Inspectcr Wolfe, acting within that authority, excluded Wayne from
walkaround status when he determined that the miners were already
adequately represented at the meeting. In this regard, Consol contends
that its stipulation that an on-shift safety committeeman is the miners'
first choice as the walkaround representative on that shift does not
guarantee walkaround status to the on-shift safety committeeman.
Because Wayne's presence was determined by the inspector to be
superfluous to the other miner representatives who were also present to
aid and participate in the six-month ventilation meeting, Wayne was not
entitled to be paid by Consol for the remainder of the shift after he
exited the mine on union business. Finally, Consol argues that Wayne's
right to go on union business and Consol's right to refuse to allow him
to return to work or to pay him for the remainder of the shift are
controlled by the 1984 Wage Agreement (the "contract").
In response, the Secretary and the UHWA contend that the
ventilation review meeting was a "post-inspection conference" under
section 103(f), Wayne was the miners' choice as their authorized
representative for participating in the conference, the presence at the
conference of other members of the union safety committee did not negate
Wayne's right to participate in the March 25 meeting without a loss in
pay, and that none of Inspector Wolfe's actions can properly deprive
Wayne or the miners of their rights.
We conclude the judge erred in finding, under the facts of this
case, that Consol discriminated against Wayne· in violation of section
105(c)(l). In reaching this conclusion, we need not resolve whether the
meeting at issue is a compensable post-inspection conference. Rather,
assuming the applicability of section 103(f) to a ventilation review
meeting, we find that, given Inspector Wolfe's exercise of his authority
under section 103(f), Consol cannot be found to have violated the Act.
Under the Mine Act, a complaining miner establishes a prima facie
case of discrimination by proving he engaged in protected activity and
that the adverse action complained of was motivated in any part by that
activity. Secretary on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds sub.
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981);
Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC
803, 817-818 (April 1981). The operator may rebut the prima facie case
by showing either that no protected activity occurred or that the
adverse action was not motivated in any part by protected activity.
Robinette, 3 FMSHRC at 818 n. 20. Thus, to prevail bn his complaint,
Wayne must first show that he had a protected right to attend the

487

March 25 meeting.
Section 103(f) affords both representatives of operators and
representatives of miners the right to accompany an MSHA inspector
during a "physical inspection of .[the] ••• mine" and to "participate in
pre- or post-inspection conferences held at the mine." 30 U.S.C.
§ 813(f). We have previously emphasized the important function served
by these rights in enhancing miners' understanding and awareness of the
health and safety requirements of the Act. Emery Mining Corp.,
10 FMSHRC 276, 289 (March 1988), petition for review filed Nos. 88-1655
and 1659 (10th Cir. April 27, 1988); Secretary on behalf of Truex v.
Consolidation Coal Co., 8 FMSHRC 1293 (September 1986); see also Magma
Copper Co., 1 FMSHRC 1948, 1951-52 (December 1979), aff'd, Magma Copper
Co. v. FMSHRC, 645 F.2d 694 (9th Cir. 1981), cert. denied, 454 U.S. 940
(1981). We have further recognized that section 103(f) provides miners,
rather than mine operators, the right to designate a representative for
section 103(f) inspections and conferences. Truex, 8 FMSHRC at 1298 .•
Unlike Truex, however, the controlling question here is not whether the
operator has a role to play in the selection of a miners' representati~e
but the extent of the role played by the Secretary's Inspector.
The right of a miners' representative to accompany an inspector is
not an unqualified right. Emery, 10 FMSHRC at 289. Section 103(f)
itself expressly provides that the exercise o~ the right is "[s]ubject
to regulations issued by the Secretary," requires that a representative
"be given an opportunity to accompany" the inspector, and grants the
inspector discretion to permit additional representatives where he
determines that more than one walkaround representative would aid his
inspection. 30 U.S.C. § 813(f). See Emery, 10 FMSHRC at 289.
In exercising the authority granted by section 103(f), the
Secretary has recognized that the exercise of the walkaround right by
miners' representatives must be the subject of appropriate qualification
and she has expressly invested MSHA inspectors with the authority to
limit the number of miners' representatives participating in an
inspection, consistent with the primary obligation to carry out
inspections in a thorough, detailed, and orderly manner. Interpretftive
Bulletin, 43 Fed. Reg. 17546 (1978). Emery at 289 n. 13. ~/
~/

The Secretary's Interpretative Bulletin setting forth guidelines
for the inspector's interpretation and application of section 113(f),
provides:
Considerable discretion must be vested in inspectors
in dealing with the different situations that can
occur during an inspection. While every reasonable
effort will be made in a given situation to provide
opportunity for full participation in an inspection
by a representative of miners, it must be borne in
mind that the inspection itself always takes
precedence. The inspector's primary duty is to
carry out a thorough, detailed, and orderly
inspection. The inspector cannot allow inordinate

488

Here, .it is clear that Inspector Wolfe believed that Wayne's
presence as a walkaround was not required at the meeting because the
miners already were adequately represented by the three union safety
committeemen then present. It is undisputed that Wolfe informed the
representatives of the miners already in attendance, as well as Consol's
representative, of his position. Consol's safety engineer Riggle
testified that had Wolfe stated that he required a walkaround for the
meeting, Consol would have made certain that a walkaround was available
to the inspector, and the parties do not dispute that Consol's practice
is to defer to the MSHA inspector's determination regarding walkaround.
Tr. 144, 154.
In view of the central role that inspectors play under the statute
and the Secretary's own guidelines with respect to walkaround representation, we hold that the judge erred when he found "no relevance" in
Wolfe's "comments" that "a 'walkaround' was not required ••• and that
the miners were already represented by the three safety committeemen who
were present." 9 FMSHRC at 1962. In stating to the representatives·of
the miners and of Consol already present at the meeting that Wayne's
additional presence was not required, Wolfe exercised the discretionary
authority accorded him by the Act to determine the composition of the
group participating in an inspection. Since three other members of the
union safety committee and one representative of the International UMWA
were present at the meeting, we cannot say that the inspector acted
arbitrarily or capriciously in excluding Wayne.
We have considered the parties' stipulation that the safety
committeeman working the shift during which an inspection takes place
would be the "first choice" as miners' representative for an inspection
occurring during that shift. The statute, however, does not limit
walkaround participation to only "on-shift" miners. Instead, the
statute requires only that, if an "on-shift" representative participates

delays in commencing or conducting an inspection
because of the unavailability of or confusion
surrounding the identification or selection of a
representative of miners. Where necessary in order
to assure a proper inspection, the inspector may
limit the number of representatives of the operator
and miners participating in an inspection. The
inspector can also require individuals asserting
conflicting claims regarding their status as
representatives of miners to reconcile their
differences among themselves and to select a
representative. If there is inordinate delay, or if
the parties cannot resolve conflicting claims, the
inspector is not required to resolve the conflict
for the miners and may proceed with the inspection
without the presence of a representative.
43 Fed. Reg. at 17546 (emphasis added).

489

as the autherized representative, such representative is to be
compensated by the operator: Here, several representatives of miners
were present to participate at the meeting and the inspector, acting
within his authority, determined that an additional miners'
representative was not needed. In the circumstances of this case, the
inspector's decision controls.
Accordingly, we find that the inspector acted within the
discretion granted him under section 103(f) and the Secretarial
guidelines in determining that Wayne's presence was not required at the
meeting. We further find that in relying upon the inspector's
determination Consol did not violate section 105(c). Therefore, the
judge's decision is reversed, the discrimination complaint is dismissed,
and the penalty assessed by the judge is vacated •

~·

.

<2~d.~

Joyce A. Doyle, CommiSSiOr

490

Chairman Ford concurring in result:
I agree with my colleagu~ in the majority that the decision of the
judge should be reversed, but I would base the reversal on a more fundamental ground: Mr. Wayne's participation in the ventilation plan review
meeting of March 25, 1986 was not a statutorily protected activity, the
denial of which would constitute a violation of section 105(c) of tl:te
Mine Act. 30 u.s.c. 815(c). To the extent that my colleagues decline
to reach the issue of whether a miner or miner representative's.participation in such a review meeting lies within the "walkaround" righ~ set forth
in section 103(f) of the Mine Act, 30 U.S.C. 813(f), I am obliged to file
this separate opinion.
It is appropriate to begin an analysis of how this dispute arose by
recalling what Inspector Wolfe was doing at the Ireiand Mine in March of
1986. He was there to carry out the Secretary's responsibilities under
30 C.F.R. 75.316, which requires that coal mine ventilation plans "be
reviewed by the operator and the Secretary at least every six months"
(emphasis added). The regulation is drawn verbatim from the Mine Act
itself. 30 U.S.C. 863(0). There is simply no regulatory or statutory
authority for participation by miners or their representatives in the
development, review and approval of mine ventilation plans, however
appropriate such participation might be. 1./
The question then becomes whether, despite this lack of authority for
miner participation in the plan review and approval process, there exists
an overriding right of participation derived from section 103(f) of the
Mine Act. That section provides the miners' representative "an opportunity
to accompany" the inspector during the physical inspection of the mine and
"to participate in pre- or post- inspection conferences held at the mine."
The Secretary argues that Inspector Wolfe's ventilation survey conducted on
March 3-6, 1986 and the follow-up review meeting held on March 25, 1986 both
invoke the "walkaround" right of section 103(f). The Secretary's position on
review, however, conflicts with the delineation of section 103(f) rights set
forth in the Department of Labor's Interpretative Bulletin (Bulletin) issued
April 25, 1978, which is the only official Secretarial pronouncement on the
scope of walkaround participation. 43 Fed. Reg. 17546. ]:_/

1./

The standard also provides that plans be initially "adopted" by the
operator and "approved" by the Secretary. Numerous ventilation standards
within Part 75, however, do require that records and reports of ventilation examinations conducted to evaluate the effectiveness of the ventilation plan must be made available to "interested persons" which would of
course include miners. See, e.g., 30 C.F.R. 75.300-4, 75.303, 75.305 and
75.306. Additionally, 30 C.F.R. 75.1203 requires that a mine map setting
forth the ventilation system be kept current and made available to miners
and their representatives.
2/
The Bulletin does not address a miners' representative's participation in pre-and post-inspection conferences; rather, it deals with various
mine site "activities" giving rise to miners' participation rights. For
purposes of analysis here, however, I am assuming that if a right to participate in a particular activity exists, that right extends to any subsequent
conference held on mine property to discuss specifically the consequences
of that activity.

491

Stating that "the types of activities which give rise to the [miner's]
participation right under section 103(f) are numerous, but pot unlimited,"
the Bulletin proceeds to distinguish those situations where walkaround
participation is warranted from those where it is not. Those activities
giving rise to the right of participation are: (1) "regular inspections",
i.e., the four underground and two surface mine inspections required
annually by the Mine Act; (2) "spot inspections", described as inspections
made for purposes of determining if an imminent danger or a violation
exists; (3) inspections in response to requests from miners or their representatives, i.e., section 103(g) inspections; (4) inspections at mines
liberating excessive quantities of methane or other explosive gases, i.e.,
section 103(i) inspections; and (5) inspections in conjunction with accident investigations. 43 Fed. Reg. 17547-48.
Conversely, activities that do not invoke the right to participation
include: (1) technical consultations; (2) demonstration of prototype
equipment; (3) education and training services; (4) safety and health
research; (5) general information gathering; (6) criminal investigations;
(7) investigations of discrimination complaints; (8) investigations into
petitions for variances under section lOl(c); and (9) field certification
of permissible equipment. 43 Fed. Reg. 17548.
Viewed against the backdrop provided by these distinctions, I conclude that the activity engaged in by Inspector Wolfe during his visits
to the mine on March 3-6, 1986 was more in the nature of consultation
and information gathering in conjunction with the plan review and approval
process than in the nature of "direct enforcement activity" described by
the Bulletin as "carried out for the purpose of determining if an imminent
danger or a violation exists." 43 Fed. Reg., 17547-48. l_/
This is not to say that "direct enforcement activity" could not arise
in the course of an activity that would not otherwise invoke a miner representative's right to participate. In fact, Inspector Wolfe issued two
3/
Indeed, the inspector's activities throughout March of 1986 are most
analogous to those carried out during investigations into petitions for
variance under section lOl(c) (number 8 among the list of activities, supra,
that do not give rise to miner participation rights). In both cases, the
ope-rator""S"""past compliance record is reviewed, whether that review covers
compliance with the current plan or compliance with the standard from which
a variance is sought. Likewise, in both cases the review covers proposed
changes in the operator's compliance responsibilities, whether through
revisions to the plan or through the variance being sought. If, as the
Secretary argues and the judge found, the discussion of past compliance
and changes in future compliance responsibilities are the criteria for
determining whether an activity, i.e., the ventilation review meeting,
comes within the "purview of section 103(f)", 9 FMSHRC 1962, I fail to
see why section lOl(c) investigations would not also require walkaround
participation.

492

citations during the March 3-6 survey though neither one related to the
ventilation standards or the ventilation plan (nor were the two citations
reviewed at the March 25 meeting). The Bulletin, however, anticipates such
circumstances by stating that while "enforcement action could result from
some of those [non-participation] activities ••• [t]he continuing presence
of a representative of the miners in all phases of the activities "Would not
necessarily aid the activity" 43 Fed. Reg. 17548.
Granting appropriate deference to the Secretary as an interpreter of
the enabling statute, I find no basis in her Interpretive Bulletin for
considering the mine plan review and approval process as an activity
giving rise to section 103(f) participation rights for miners or their
representatives. Indeed, the Bulletin taken as a whole supports an
opposite view. Nor am I persuaded by the case law advanced by the Secretary in support of her position. In Southern Ohio Coal Co., 8 FMSHRC
295 (March 1986) miner participation at a post-inspection conference was
specifically authorized by 30 C.F.R. 100.6 which granted "all parties"
the opportunity to review each citation and order issued during a regular
quarterly inspection. Id. 296. In Secretary on behalf of Truex v.
Consolidation Coal Co., 8 FMSHRC 1293 (March 1988) the operator stipulated
that a miner representative's attendance at a conference called to discuss
a hearing conservation program was subject to the walkaround requirements
of section 103(f). Here, there is neither regulatory authority nor an
admission by the operator establishing that the ventilation plan review
meeting of March 25, 1986 was subject to the walkaround rights of section
103(f).
In the final analysis the dispute in this case appears to have arisen
from the inevitable blurring of miner's rights set forth separately in the
Mine Act and in the National Bituminous Coal Agreement of 1984 and in their
respective predecessors. Custom and practice at the Ireland Mine have
obviously led to some confusion as to where statutory rights terminate and
wage agreement rights commence. 4/ As this Commission has often stated,
however, "the Mine Act is not an-employment statute." United Mine Workers
of America on behalf of James Rowe et al. v. Peabody Coal Co., 7 FMSHRC
1357, 1364 (1985) aff'd 822 F.2d 1134 (D.C. Cir. 1987). Great care must
therefore be taken by the Secretary and the Commission to keep statutory
and contractual rights separate and distinct. Here, regardless of what
rights of participation may or may not lie in contract, it is clear to me
that neither the Mine Act nor, in particular, standard 30 C.F.R. 75.316
grants miners or their representatives rights to participate in the review
and approval of mine ventilation plans. If the Secretary believes that
4/
See, for instance, Article III, section (d)(7) of the wage agreement
guaranteeing pay for certain safety committee activities and Article III,
section (h) setting forth miners' rights to receive in advance and to comment
upon various plans required to be developed and approved under the Mine Act.
In fact, the latter provision was invoked by safety committeeman Miller when
he requested a 10 day postponement of the March 25, 1986 meeting to allow the
union to consider an MSHA-proposed change in the ventilation plan. Tr. 107,
109. Although the plan was ultimately approved, the rescheduled meeting was
never held. Tr. 55.

493

such participation is both vital and appropriate (and sound arguments can
be marshalled ·to support that belief) her recourse is to the rulemaking
provisions of section 101 of the Act, not to the discrimination provisions
of section 105(c). ii
For the reasons set forth above I would reverse the decision of the
judge and dismiss the complaint.

~~
Chairman

5/
In fact, it should be noted that the scope of miner participation in
the development, approval and periodic review of mine plans is a specific
consideration in the Secretary's ongoing rulemaking activities. The
Secretary's relatively recent revision of her roof control standards does
not provide for the participation of miners or their representatives in
the development of roof control plans nor in the approval and review
process. Plans are to be "developed" by the operators, "approved" by
the MSHA District Managers, and "reviewed" every six months by the
Secretary's authorized representatives. 30 C.F.R. 75.220, 75.222 and
75.223. See 53 F.R. 2375, 2378-80 (January 27, 1988). Miner involvement is limited to access to approved plans and instruction in their
provisions prior to implementation. Id. In her preamble to the
standards, however, the Secretary deferred the issue of miner participation in the plan approval process to her pending rulemaking proceedings
on ventilation standards. 53 F.R. 2370. In turn, the Secretary's proposed rule on ventilation provides the miners' representative an opportunity
to provide written comments on the mine operator's proposed plan and to
meet with the District Manager to discuss the plan. The proposal is
silent, however, with respect to walkaround rights. 53 F.R. 2354, 2404,
2421 (January 27, 1988).

494

Distribution
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Thomas M. Myers, Esq.
United Mine Workers of America
56000 Dilles Bottom
Shadyside, Ohio 43947
Michael Peelish, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

495

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

April 7, 1989

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

v.

Docket No. KENT 88-178

CAMP FORK FUEL COMPANY

BEFORE:

Ford, Chairman; Doyle and Lastowka, Commissioners
DIRECTION FOR REVIEW AND ORDER

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, JO U.S.C. § 801 et seq. (1982)("Mine Act").
Commission Chief Administrative Law Judge Paul Merlin issued a Decision
Approving Penalty and Order of Dismissal on March 15, 1989, approving
the proposed civil penalty in this matter, stating that it had been paid
by the operator, and dismissing the proceeding. The judge previously
received a letter from the operator, filed in response to the judge's
earlier show cause order, in which the operator asserts that it had paid
the proposed civil penalty in issue. Counsel for the Secretary of Labor
has filed with the Commission a Motion for Reconsideration, stating that
the Secretary has been unable to locate any record indicating that the
civil penalty has, in fact, been paid and requesting reopening of the
proceeding. For the reasons discussed below, we deem the Secretary's
motion to constitute a timely petition for discretionary review, which
we grant. We vacate the dismissal order and remand to the judge for
appropriate proceedings.
On May 3, 1988, an inspector of the Department Labor's Mine Safety
and Health Administration issued to Camp Fork Fuel Company ("Camp
Fork"), at its No. 4 Shelby Gap mine, a citation pursuant to section
104(a) of the Mine Act, 30 U.S.C. 814(a), alleging a violation of 30
C.F.R. § 75.206 for excessive width of mining entries. The citation was
not contested by the operator. Subsequently, the Secretary notified
Camp Fork of a proposed civil penalty of $295 for the alleged violation,
and the operator filed a "Blue Card" request for a hearing.

496

On August 22, 1988, the Secretary filed a Proposal for Assessment
of Civil Penalty. Camp Fork did not file an answer to the proposal, as
it was required to do in order to maintain its contest. See 29 C.F.R.
§ 2700.28. Accord~ngly, on December 22, 1988, Judge Merlin issued an
Order to Respondent to Show Cause, explaining the requirements for
filing an answer and directing the operator to file its answer or show
good reason for not doing so within 30 days of the order. By
handwritten letter dated January 23, 1989, from Camp Fork's bookkeeper,
the operator stated that it disagreed with the citation but felt that it
was cheaper to pay the proposed penalty than to litigate over it. Camp
Fork asserted that it had paid the penalty by check #12087 on October 9,
1988. There is no indication in the record that a copy of this letter
was served upon the Secretary as required, and no response to it from
the Secretary appears in the record.
On March 15, 1989, Judge Merlin issued his dismissal order. He
approved the $295 proposed penalty assessment as. being consistent with
the Mine Act, noted that the operator had paid the proposed penalty, and
dismissed the proceeding. On March 24, 1989, counsel for the Secretary
filed with the Commission a Motion for Reconsideration, in which counsel
states that the Secretary cannot locate any record reflecting payment of
the civil penalty. The Secretary seeks reopening of the proceeding and
requests that the judge issue an order directing payment of the penalty
or submission of proof of payment.
··
Judge Merlin's jurisdiction in this matter terminated when his
dismissal order issued on March 15, 1989. 29 C.F.R. § 2700.65(c).
Under the Mine Act and the Commission's procedural rules, once a judge's
decision has issued, relief from the decision may be sought by filing
with the Commission a petition for discretionary review within 30 days
of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70. Here, the
Secretary's motion is a request for relief from the judge's decision and
we will treat it as a timely petition for discretionary review. ~'
~' Secretary on behalf of DeLisio v. Mathies Coal Co., 9 FMSHRC 193,
194 (February 1987).
An operator's payment of a civil penalty extinguishes its right to
contest the penalty and the underlying alleged violation, except where
payment has been made by genuine mistake. Old Ben Coal Co., 7 FMSHRC
205, 207-10 (February 1985). Such payment would afford a proper basis
for dismissal of this proceeding. The Secretary's motion, however,
questions the basis upon which the judge's dismissal order rests.

497

Accordingly, we grant the Secretary's petition for discretionary
review, vacate the dismissal order, and remand this matter to the judge
for further appropriate proceedings. ll

R.-~
FordB. ~

ll

Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves a panel of three members to exercise the
powers of the Commission in this matter.

498

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

April 7, 1989
KENNETH HOWARD
Docket No. KENT 89-2-D

v.
B & M TRUCKING

BEFORE:

Ford, Chairman; Doyle and Lastowka, Commissioners

DIRECTION FOR REVIEW AND ORDER
BY THE COMMISSION:
In this discrimination proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine
Act"), Commission Administrative Law Judge Gary Melick issued an Order
of Dismissal on February 27, 1989, finding that complainant Kenneth
Howard had failed to respond to an earlier Order to Show Cause and
dismissing Howard's discrimination complaint. Subsequently, the
Commission received from the attorney representing Howard a Motion to
Reinstate, asserting that the failure to respond to the show cause order
was due to counsel's misunderstanding of that order. Under the
circumstances presented, we deem this motion to constitute a timely
petition for discretionary review, which we grant. We vacate the
judge's dismissal order, and remand for further proceedings.
On October 3, 1988, Howard, by counsel, filed with the Commission
a discrimination complaint alleging that he had been discriminatorily
discharged by B&M Trucking ("B&M") in violation of section lOS(c) of the
Mine Act. 30 U.S.C. § 815(c). 1/ The complaint, as supplemented on
October 7, 1988, alleges that Howard, a truck driver, was discharged
because he had objected on safety grounds to operating a front end
loader that he had not been trained to operate. The complaint requests
backpay, reinstatement, punitive damages, and attorney's fees and costs.
1/
Under Commission Procedural Rule 40(b), 29 C.F.R. § 2700.40(b), as
amended (52 Fed. Reg. 44882 (November 23, 1987)), a miner may file his
own section 105(c)(3) complaint of discrimination for alleged violation
of section 105(c) of the Mine Act only if the Secretary of Labor has
made a prior determination that no violation of the Act has occurred.
See also 30 U.S.C. §§ 815(c)(2) & (3).

499

In an Order to Show Cause dated December 2, 1988, Commission Chief
Administrative Law Judge Paul Merlin observed that Howard had not shown
compliance with the Commission's requirements for filing a
discrimination complaint pursuant to section 105(c)(3) of the Mine Act
and ordered the complainant to file with the Commission a copy of a
certified mail return receipt showing delivery of the discrimination
complaint to the operator and a copy of the determination letter from
the Department of Labor's Mine Safety and Health Administration ("MSHA")
finding that a violation of the Mine Act had not occurred. The order
directed Howard to send the complaint to the operator, if he had not
already done so, along with a note to the operator stating that
complainant disagreed with MSHA's determination and was requesting
review and relief by the Commission. Howard was ordered to comply with
the above requirements within 30 days of the date of the order or to
show good reason for failure to do so.
On February 27, 1989, Judge Melick, to whom the matter had been
assigned, issued an Order of Dismissal in which he found that
complainant had failed to respond to the show cause order. Accordingly,
the judge dismissed the discrimination complaint. On March 13, 1989,
the attorney for Howard filed with Judge Melick ~ Motion to Reinstate
the discrimination complaint.
Because Judge Melick's jurisdiction in this matter terminated when
his dismissal order issued on February 27, 1989, 29 C.F.R. § 2700.65(c),
he forwarded the Motion to Reinstate to the Commission's Docket Office,
where it was received on March 14, 1989. B&M has not filed a response
to this motion. Under the Mine Act and the Commission's procedural
rules, once a judge's decision has issued, relief from the decision may
be sought by filing with the Commission a petition for discretionary
review within 30 days of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70.
Here, the Motion to Reinstate is a request fot relief from
the judge's decision and, under the circumstances presented, we will
treat it as a timely-filed petition for discretionary review. See,
~' Middle States Resources, Inc., 10 FMSHRC 1130 (September 1988).
Judge Melick's dismissal of the complaint was based on
complainant's default in not responding to the show cause order. The
Commission has stated that "in general, if a defaulting party can make a
showing of adequate or good cause for the failure to respond to an
order, the failure may be excused and appropriate proceedings on the
merits permitted." M.M. Sundt Construction Co., 8 FMSHRC 1269, 1271
(September 1986), citing Valley Camp Coal Co., 1 FMSHRC 791, 792 (July
1979). In assessing the existence of adequate cause, explanatory
factors akin to those mentioned in Fed. R. Civ. P. 60(b)(l) -- mistake,
inadvertence, surprise, or excusable neglect -- may be relevant. Valley
Camp, supra, 1 FMSHRC at 792 & n. 3. The absence of bad faith on the
part of the defaulting party is also a relevant concern. Easton Constr.
Co., 3 FMSHRC 314, 315 (February 1981). An attempt to comply at least
partially with the order in question may be a mitigating factor as well.
Sigler Mining Co., 3 FMSHRC 30 (January 1981).
In this case, Howard's counsel states that the failure to comply
with the show cause order was due to her own misunderstanding of the

500

judge's ord~r. The Motion to Reinstate alleges that the complaint was
served on B&M within the period required by the show cause order, and
the certified mail return receipt is attached to the motion. The
complaint also outlines the relief requested. Thus, there is some
indication on the record of complainant's attempts to comply with
requisite filing requirements and with the show cause order. We are
reluctant to impose default by attributing to a party the non-willful
errors of its counsel. See, ~· Jackson v. Beech, 636 F.2d 831, 83537 (D.C. Cir. 1980).
Although there is not sufficient information on the record to
permit us to rule finally on the substantive merits of Howard's motion
at this time, we conclude that in the interest of justice, complainant
should have the opportunity to present his position to the judge, who
shall determine whether final relief from the default order is
warranted. See Kelley Trucking Co., 8 FMSHRC 1867, 1869 (December
1986). In connection with further proceedings before the judge, we note
that Howard's attorney has not furnished the Commission with a copy of
the letter from MSHA indicating its determination that no violation of
the Act occurred, or with proof that Howard's supplemental statement
filed on October 7, 1988, has been served on the operator.
Accordingly, review of the judge's order of dismissal is hereby
.granted, the order is vacated, and this matter is remanded for further
appropriate proceedings. ~/

'?~
tl ~7.Lc_
1QYce:DOY1e, CommissiQitier
James A. Lastowka, Commissioner

~/

Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves a panel of three members to exercise the
powers of the Commission in this matter.

501

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

20006

April 7, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. PENN 88-260

COAL JUNCTION COAL COMPANY

BEFORE:

Ford, Chairman; Doyle and Lastowka, Commissioners

DIRECTION FOR REVIEW AND ORDER

BY THE COMMISSION:

In this civil penalty proceeding arising under the .Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg.=(1982)("Mine
Act"), Commission Chief Administrative Law Judge Paul Merlin issued an
Order of Dismissal on February 27, 1989, stating that the Commission has
been informed by the Secretary of Labor that the proposed civil
penalties had been paid by Coal Junction Coal Company ("Coal Junction").·
However, in a letter to Judge Merlin dated March 3, 1989, and received
by the Commission on March 6, 1989, Coal Junction submitted an Answer to
the Secretary's Petition for Assessment of Civil Penalty, which had been
filed in August 1988. The Answer indicates that Coal Junction wishes to
pursue its contest in this matter. Under the circumstances presented,
we deem Coal Junction's Answer to constitute, in effect, a petition for
discretionary review, which we grant. The judge's dismissal order is
vacated and this matter is remanded for further proceedings.
On April 25 and 26, 1988, an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA") issued to Coal
Junction, at its surface. coal mine in Pennsylvania, a number of
citations for alleged violations of mandatory standards. Coal Junction
did not immediately contest the citations. In June 1988, MSHA notified
Coal Junction that it proposed civil penalties of $407 for the alleged
violations. In response to this notification, Coal Junction filed with
the Commission a "Blue Card" request for a hearing. On August 22, 1988,

502

the Secretary filed with the Commission a Petition for Assessment of
Civil Penalty, and certified that a copy of the petition had been mailed
to Coal Junction.
Coal Junction did not file an answer to the Secretary's petition
within 30 days, as it was required to do in order to maintain its
contest. See 29 C.F.R. § 2700.28. Accordingly, on December 5, 1988,
Judge Merlin issued to Coal Junction an Order to Show Cause explaining
the requirements for filing an answer to a civil penalty proposal and
ordering the operator to file its answer within 30 days or be found in
default. No answer or other response to the show cause order was
received by the Commission within that time.
On February 9, 1989, MSHA transmitted to the Commission's Docket
Off ice a memorandum indicating, in relevant part, that the proposed
civil penalties in this proceeding had been paid by the operator. On
February 27, 1989, Judge Merlin issued his dismissal order, based on the
information that the civil penalties had been paid. By letter dated
March 3, 1989, the attorney for Coal Junction transmitted to the
Commission an answer stating that Coal Junction wishes to contest the
alleged violations. (The operator's papers do not refer to Judge
Merlin's show cause or dismissal orders, do not mention the apparent
payment of proposed civil penalties, and do not explain the late filing
of the answer.)
The judge's jurisdiction in this matter terminated upon issuance
of his dismissal order. 29 C.F.R. § 2700.65(c). Under the Mine Act and
the Commission's procedural rules, relief from a judge's decision may be
sought by filing with the Commission a petition for discretionary review
within 30 days of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70. Here, we deem Coal Junction's answer to constitute, in
effect, a timely petition for discretionary review of the judge's
dismissal order. See,~' Middle States Resources, Inc., 10 FMSHRC
1130 (September 1988).
An operator's payment of a civil penalty extinguishes its right to
contest the penalty and the underlying violation, except where payment
has been made by genuine mistake. Old Ben Coal Co., 7 FMSHRC 205, 20710 (February 1985). The filing of Coal Junction's answer, albeit late,
suggests that, in the interest of justice, the operator should be heard
with respect to MSHA's assertion that the penalties have been paid.

503

Accordingly, we grant the operator's petition for discretionary
review, vacate the dismissal order, and remand this matter to the
judge for further appropriate proceedings. l_/

~.#
·/

/j°
/(
/
Ve~/r-<-- t( , ~-~L<:_
Joy~ A. IfOYle: Commissioner

!/

Pursuant to section 113(c) of the Mine Act, 30 U.S.C.
823 (c) ,. we have designated ourselves a panel of three members to
exercise the powers of the Commission in this matter.
§

504

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

April 24, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEST 85-19

MID-CONTINENT RESOURCES, INC.

BEFORE:

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

DECISION

BY:

Ford, Backley, Lastowka and Nelson

The issue in this proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982){"Mine Act"), is
whether the Secretary of Labor ("Secretary") proved the validity of a
withdrawal order issued pursuant to section 104(b) of the Mine Act,
30 U.S.C. § 814(b). l/ The withdrawal order alleges that Mid-Continent

ll

Section 104(b) states:
If, upon any follow-up inspection of a •.. mine,
an authorized representative of the Secretary finds
(1) that a violation described in a citation issued
pursuant to [section 104) ••• has not been totally
abated within the period of time as originally fixed
therein or as subsequently extended, and (2) that
the period of time for the abatement should not be
further extended, he shall determine the extent of
the area affected by the violation and shall
promptly issue an order requiring the operator of
such mine or his agent to immediately cause all
persons, except those persons referred to in
subsection (c) of this section, to be withdrawn
from, and to be prohibited from entering, such area
until an authorized representative of the Secretary

505

Resources, Inc. ("Mid-Continent") failed to abate a violation of
30 C.F.R. § 75.1704 within the prescribed period of time. 2/ Commission
Administrative Law Judge Michael A. Lasher found that the Secretary did
not prove that.Mid-Continent failed to abate the violation, and he
vacated the section 104(b) withdrawal order. 9 FMSHRC 1757 (October
1987)(ALJ). We granted the Secretary's petition for discretionary
review challenging the judge's finding. For the reasons that follow, we
affirm.
The events leading to the issuance of the contested withdrawal
order occurred in the designated return air escapeway of the 102 Long
Wall Panel at Mid-Continent's Dutch Creek No. 1 Mine, an underground
coal mine, located at Carbondale, Pitkin County, Colorado. The mine
lies under 2000 to 3000 feet of overburden. As a result of pressure
from the overburden, the mine has an ongoing problem with floor heave
and deterioration of the ribs of mine entries. Man-made pack walls,
composed of cement and crushed rock or a crushed limestone mixture,
provide support in the entries, including entries serving as
escapeways. 11 Pressure from the overburden causes the pack walls to
deteriorate and to buckle. Also, water continually seeps into the mine.
As a result, impoundments of water in the escapeways can occur.
On June 20, 1984, Mine Safety and Health Administration ("MSHA")
Inspector Louis Villegas inspected the designated return air escapeway
of the 102 Long Wall Panel. As Villegas walked the escapeway he saw
that the floor had heaved and that a dam composed of rock and mud mixed
determines that such violation has been abated.
30 u.s.c. § 814(b).
~/

30 C.F.R. § 75.1704, the mandatory underground coal mine
escapeways standard, provides in part:
[A]t least two separate and distinct travelable
passageways which are maintained to insure passage
at all times of any person, including disabled
persons, and which are to be designated as
escapeways, at least one of which is ventilated with
intake air, shall be provided from each working
section continuous to the surf ace escape drift
opening, or continuous to the escape shaft or slope
facilities to the surf ace, as appropriate, and shall
be maintained in safe condition and properly
marked ••••

Section 75.1704 essentially restates section 317(f)(l) of the Mine Act,
30 u.s.c. § 877(f)(l).

11

A "pack wall" is "a dry-stone wall built along the edge of a
roadway of a coal ••• mine. The wall helps to support the roof and also
to retain the packing material and prevent it spreading onto the
roadway." Bureau of Mines, U.S. Department of Interior, A Dictionary of
Mining, Mineral, and Related Terms 787 (1968).

506

with coal had built up to a height of 15 inches. The dam was impounding
water at a point approximately 450 feet from the .face. The water was up
to 12 inches deep and covered the width of the entry. 9 FMSHRC 1760-61.
Because the inspector believed that the impoundment obstructed the
escapeway to the extent that passage through the escapeway could not be
insured at all times, he issued a citation pursuant to section 104(a) of
the Act alleging a violation of section 75.1704, supra. The citation
states:
The designated return escapeway from the 102
longwall section was not maintained to insure
passage at all times due to the following conditions
being present. At a location 450 feet outby the 102
Longwall face, floor material had been pushed up to
within 4 feet of the roof forming a bank and a[n]
impoundment of water and rock up to 15 inches deep,
6 feet wide and 75 feet in length. No one was
observed in the area to correct the condition.· Men
were at work at the Longwall face.
Exh. P-1.

(emphasis added).

Inspector Villegos issued the citation at 5:15 p.m. on June 20.
In the citation he fixed the time for abatement of the violation as
9:00 p.m. the same day. Villegos subsequently twice extended the time
for abatement, to July 11, 1984, and to July 20, .1984.
Between June 20 and July 25 mining had advanced in the 102 Long
Wall Panel. On July 25, 1984, MSHA Inspector Lee H. Smith inspected the
same escapeway with MSHA Supervisory Inspector Clarence Daniels and Mine
Superintendent Allyn Davis.
Smith had discussed the section 104(a)
citation with Villegos. Tr. 126-127. Smith was aware that the time had
passed for abatement of the violation but had not previously seen the
conditions for which the citation was issued.
During inspection of the escapeway Smith observed an impoundment
backing up water. In addition, portions of the pack walls in the area
of this impoundment had fallen into the escapeway and the mine floor had
heaved to within four feet of the roof. Water and mud had accumulated
in the impoundment, which was approximately 50 to 70 feet in length by
six to 8 feet in width. Smith testified that the water was about 12
inches deep for a distance of at least 20 feet and the heaving problem
existed from the water and mud accumulation to within 100 to 150 feet of
the ~ace~~ Tr. 119, 120-22, 154-55. Smith believed that the obstruction
in the escapeway represented '"'an ongoing condition in the area," and
that afte~-two extensions of the period of time fixed to abate the
violation that the area "was not being cleaned fast enough." Tr. 151.
Smith, after discussions with Daniels and Davis, believed that the
obstructed area of the escapeway was the :same area cited by Villegos on
June 20. Tr. 126. However, at the hearing on the matter, Smith
unequivocally testified that in fact the area was not the same.

507

Tr. 122-23, 140-141, 150-151, 154. ~/
Smith issued to Mid-Continent a section 104(b) withdrawal order
stating in part:
The designated return air escapeway from the 102
longwall active working section is still not being
maintained to insure passage at all times of any
person, including disabled persons. Citation
No. 2212848 was issued on 06-20-84 because of this
condition •••.
Exh. P-4. On July 30, 1984, Mid-Continent abated the condition leading
to issuance of the withdrawal order by grading the entire escapeway to a
height of at least 6 feet and a width of 8 feet.
At the hearing, Mid-Continent conceded that the conditions cited
by Villegas violated section 75.1704. Mid~Continent argued, however,
that because the obstruction cited by Smith in the withdrawal order was
different from the obstruction cited in the citation, the section 104(b)
order was improperly issued on the basis of its failure to abate the
violation alleged in the citation. The Secretary argued that because the
escapeway was obstructed on July 25, Mid-Continent had not abated the
violation within the period of time as subsequently extended.
Alternatively, the Secretary argued that the conditions observed by
Smith constituted a separate violation of section 75.1704 and that the
contested withdrawal order should be modified to a section 104(a)
citation. ~/ 9 FMSHRC 1759-60 (Tr. 114, 274-75).
In his decision the judge followed the alternative course argued
for by the Secretary. He found that the Secretary had proved two
separate violations of section 75.1704 -- one on June 20, 1984, and one
on July 25, 1984 -- but concluded that the Secretary had not proved that
Mid-Continent failed to abate the first cited violation. Therefore, the
judge held that the order of withdrawal was invalid, and he modified it
to a section 104(a) citation. 9 FMSHRC at 1766-67.
In considering the validity of the withdrawal order the judge
stated:

~/
The judge found that "[t]he area described in the withdrawal order
was closer to the face than the area described by Inspector Villegas in
the citat:ion •••. " 9 FMSHRC at 1763. On review it is undisputed that
the· sites of the violation cit"ed in the citation and the withdrawal
order were-:-Oif ferent.
~/

Although Mid-Continent did not file a notice of contest pursuant
to section 105(d) of the Act, 30 U.S.C. § 815(d), challenging the
issuance of the section 104(b) withdrawai: order, the propriety of its
first time challenge to the merits of the withdrawal order in this civil
penalty proceeding was not argued to the judge or raised on review and
therefore is not at issue.

508

I .;. find insufficient evidence of [the
Secretary's] "failure to abate" allegation, not
simply because the second (July 25) violation
occurred in a different area, but because there
(a) is no reliable evidence as to the condition of
the original (June 20) violation situs after July
11, coupled with the fact (b) that there is
insufficient evidentiary basis to draw the inference
that the return escapeway, for one reason or
another, at one location or another, was not cleaned
up, or maintained adequately during the period July
11 - July 25 to constitute an abatement at some
point in time of the original violation.
Accordingly, it is concluded that the 104(b)
Withdrawal Order was improperly issued.
9 FMSHRC at 1766-67.

On review, the Secretary argues that the judge erred in finding
that the section 104(b) order was invalid because the Secretary had not
proved that the violative condition existed continuously from the time
the condition was originally cited until the time the order was issued.
In the Secretary's view, if, during a follow-up inspection, an inspector
finds that the operator is not in compliance with the standard cited in
a prior section 104(a) citation, a section 104(b) order may validly
issue. Because on July 24 Mid-Continent was not in compliance with
section 75.1704, the Secretary contends that the section 104(b)
withdrawal order was valid.
We conclude that to the extent the ju~ge's decision can be read as
holding that to establish the validity of a: section 104(b) withdrawal
order the Secretary must prove the violative condition continuously
existed from the time when the condition was cited until the order was
issued, the judge erred. Requiring the Secretary to prove the
violation's continuous existence would compel the Secretary to
constantly monitor the operator's abatement activities, an unrealistic
burden not contemplated by the Act. Moreover, it is the operator who is
in the best position to know and prove precisely what has been done to
abate the underlying violation.
Nonetheless, when the validity of a section 104(b) order is
challenged by an operator, it is the Secretary, as the proponent of the
order, who bears the burden of proving that the violation described in
the underlying citation has not been abated within the time period
origi_nalLy fixed or as subsequently extended. We hold, therefore, that
the-Secretary establishes a prima facie case that a section 104(b) order
is valid by.proving by a preponderance of the evidence that the
violation described in the underlying section 104(a) citation existed at
the time the section. 104(b) withdrawal order was issued. The operator
may rebut the prima facie case by showing, for example, that the
violative condition described in the sect:ion 104(a) citation had been
abated within the time period fixed iri the citation, but had recurred.
We now turn to the merits of the failure to abate order at issue.

509

Under section 104(b) of the Act it is the operator's duty to abate the
"violation described in [the] citation issued pursuant to [section
104(a)]. 11 When issuing a section 104(a) citation the inspector must
"describe with particularity the nature of the violation 11 as well as
"fix a reasonable time for the abatement of the violation." 30 U.S.C.
§ 814(a). £/ Section 104(a) thus mandates that the operator be given
fair notice in the citation of the violation that it is required to
correct. See Eastern Associated Coal Corp., 1 IBMA 233, 235 (December
1972). Furthermore, in fixing a reasonable time for abatement, the
inspector necessarily must specify the violative conditions found and
determine the time reasonably required for abatement of the specified
conditions. Subsequent violative conditions, not described in the
original citation, may be subject to separate enforcement actions by the
Secretary, but are not properly grandfathered into the abatement duties
imposed upon the operator as a result of the original citation.
Therefore, the initial question before us in considering the
validity of the section 104(b) withdrawal order at issue is whether the
Secretary proved that the violative conditions identified in the
underlying section 104(a) citation were present at the time of issuance
of the section 104(b) withdrawal order. Accordingly, we must look to
the underlying section 104(a) citation issued by Inspector Villegos and
relevant testimony to determine the conditions that Mid-Continent was
required to correct in order to abate the cited violation of section
75.1704. The specific conditions in the escapeway for which Villegos
cited Mid-Continent were conditions 11 450 feet outby the 102 longwall
face" where "floor material had been pushed up to within 4 feet of the
roof forming a bank and an impoundment of water and rock up to 15 inches
deep and 75 feet in length. 11 Exh. P-1. The fact that these were the
violative conditions for which Mid-Continent was cited is underscored by
the fact that Villegas initially fixed only 3 hours and 45 minutes for
abatement of the conditions.
The Secretary did not prove that the same violative conditions
cited by Inspector Villegos were present on July 25, 1984. Inspector
Smith could not state that the specific conditions cited in the June 20
section 104(a) citation had not been remedied. Tr. 155; 9 FMSHRC at
1764. While on both June 20 and July 25 a dam and an impoundment of
water were found to obstruct the escapeway, it was not proven to the
judge that the obstructions were the same. In fact, as the judge noted,
Smith's testimony established that the situs of the obstructive
conditions on July 25 was different from the situs of the obstructive

£/

Section 104(a) of the Mine Act states in part:
-Each citation shall be in writing and shall describe
with particularity the nature of the violation,
including a reference to the provision of the Act,
standard, rule, regulation, or order alleged to have
been violated. In addition, ·the citation shall fix
a reasonable time for abatement of the violation.

30 U.S.C. § 814(a).

510

conditions cited by Villegas on June 20. 9 FMSHRC at 1763, 1767.
July 25, Mid-Continent had graded the area of the escapeway where
Villegas observed the obstruction. See Exh. R-1.

By

The floor heave, deterioration of the pack walls, and obstruction
in the mine's escapeways is the result of a continuous, natural process
at the Dutch Creek No. 1 mine. The record establishes that such
problems can occur quickly when, as here, mining has proceeded and the
face has advanced. Tr. 34-35, 170, 184-185. Given these natural
geologic propensities, the conditions found by Smith on July 25 may have
been "similar" to those found by Villegas on June 20. Sec. Br. 8. The
mere subsequent existence of similar conditions, however, is an
inadequate basis for concluding that the section 104(a) citation issued
to Mid-Continent had not been abated. We therefore find that
substantial evidence supports the judge's finding that the Secretary has
not established that Mid-Continent failed to abate the violation
originally cited.
Because the Secretary did not prove that the violative conditions
identified by the inspector in the underlying section 104(a) citation
were still extant when the subject section 104(b) withdrawal order was
issued, we conclude that the Secretary failed to establish a prima facie
case that the failure to abate withdrawal order was validly issued.
Accordingly, we affirm the judge's decision finding, in accordance with
the Secretary's alternative argument before the judge, that the
conditions described in the section 104(b) order constituted an
additional, discrete violation of 30 C.F.R. § 75.1704. ZI

A~

~ rd,Chairman

4

c-::~ AAA/'<A«'/~---..-

.Richard V. Backley, Commissioner

ames A.
', . .

/)

Last~ka,
'\

Commissioner
'

··~L1-.~·~·-v . &__{_"1-f1"7\.J
L. Clair Nelson, Commissioner

ZI

On review, Mid-Continent has moved to traverse what it views as a
material mischaracterization of its position by the Secretary. In
response, the Secretary states that she never intended her position to
have the meaning that Mid-Continent suggests. In view of the
Secretary's disclaimer and our conclusion that the Secretary did not
prove the validity of the contested order, we find Mid-Continent's
motion to be moot.

511

Commissioner Doyle, concurring in part and dissenting in part:
I concur with the majority's holding that in order to sustain a
104(b) withdrawal order, the Secretary need not prove that the violation continued uninterrupted from the time it was cited until the withdrawal order was issued. The law provides a presumption of continuance
with respect to conditions proven to exist at a given time and I see no
reason that it should not be applied to the existence of conditions that
violate the Mine Act. 31A C.J.S. Evidence §124(1), 29 Am. Jur. 2d
Evidence §237. To find otherwise would impose an imposstble burden
on the Secretary.
I dissent, however, from the majority's affirmance of the judge's
finding of insufficient evidence to support the "failure to abate"
violation, a finding that was based on the judge's incorrect assumption
that it was necessary for the Secretary to prove that the violation continued uninterrupted from the time it was originally cited until the
section 104(b) order was issued.
The majority affirms the judge but on the different basis that the
Secretary failed to prove that the July 25 obstruction was the same as
the June 20 obstruction. Slip op. at 6. In contrast, the judge found
that "the essence of the standard is the having of two escapeways as
contrasted to a focus on the presence of a particular condition, obstruction or impediment to passage at a given place in the escapeway."
9 FMSHRC at 1767. I agree with the judge and am of the opinion that
the record supports his finding.
The regulation in issue, 30 C.F.R. §75.1704, (1984), requires that
at least two separate and distinct travelable passageways be maintained
to insure passage at all times. The passageway in issue was not so maintained on June 20, 1984, when it was originally cited. It was not so
maintained when the inspector returned to the mine on July 5, 1984, and
July 11, 1984. Nor was it so maintained when a second inspector visited
the mine on July 25, 1984, and issued a section 104(b) withdrawal order.
The evidence indicates that, at the time of the original citation
"floor material had been pushed up to within four feet of the roof
forming a bank and an inpoundment of water and rock •.. " at a location "450 feet outby the 102 longwall face." Exh. P-1. The testimony
of Mid-Continent's mine superintendent, Allyn Davis, who is also a
geological engineer, reveals that Mid-Continent recognized that,
in.order to abate the violation, it would have to grade the entire tailgate, ·not just the particular area in question, "[b]ecause that area, you
know --""Ehat would just propogate itself. If I cleaned that area up,
then, we·would find the same thing ahead." Tr. 208. Even if the in-

512

spector did not immediately recognize the extent of the work that would
be required for abatement, he soon became aware that abatement would
require grading of the entire tailgate. The inspector who issued the
original citation based his extensions of time for abatement upon the
extent of grading that had been accomplished. Tr. 93, 94. Similarly
the inspector who issued the order did so because the grading was not
being done in a diligent manner. Tr. 123.

As Mid-Continent attempted to abate the violation by grading the
escapeway, "this mess kept following [them] in or kept preceding [them]
in." Tr. 191. The fact that "this mess" had been advanced by the
grading and was now at a different location does not, to me, indicate a
separate violation but rather that the same violation, a failure to maintain the escapeway to insure passage, was still in existence.
Accordingly, I would reverse the judge and reinstate the section
104(b) withdrawal order.

513

Distribution
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
·Arlington, VA
22203.
Edward Mulhall, Esq.
Delaney & Balcomb
P.O. Drawer 790
Glenwood Springs, CO

81602

Administrative Law Judge Michael Lasher
Federal Mine Safety & Health Review Commission
280 Colonnade Center
1244 Speer Blvd.
Denver, Colorado 80204

514

ADMINISTRATIVE LAW JUDGE DECISIONS

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

APR 4 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-254-M
A.C. No. 05-03211-05501

v.

Breezy Mine

URRALBURU MINING COMPANY,
Respondent
DECISION
Appearances:

Robert J. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner.

Before:

Judge Lasher

This matter arises upon the filing of a proposa.l for penalty
by the Secretary of Labor on August 11, 1988, seeking assessment
of civil penalties against Respondent for the violations alleged
in two Citations numbered 2640413 and 2640414; such Citations
issued pursuant to the provisions of Section 104(a) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 815(d)
(1977), and charged infractions of 30 C.F.R. § 57.1000, and 30
C.F.R. § 41.20, respectively.
As above indicated, Petitioner was represented at this
hearing by counsel but Respondent, which the record shows
received actual and legal notice of the hearing held on February
13, 1989, neither appeared nor advised the Presiding Judge or
counsel for Petitioner of its intent not to appear.
In such
circumstances the testimony of the issuing inspector, Dennis J.
Tobin, was submitted on the record under oath in support of the
Petitioner's position together with certain documentary evidence.
Based thereon, at the close of the hearing, this bench decision
was issued.
Findings with respect to Citation No. 2640413:
This Citation was issued by Inspector Tobin on March 16,
1988, when he discovered, while enroute to inspect another mine,
tire tracks leading to the subject mine, i.e., Respondent's
Breezy Mine.
Inspector Tobin parked his vehicle at the mine
entrance and waited until the mine operator, Ben Urralburu, came

515

out of the mine portal in the company of two other miners, one of
whom was recognized by the Inspector as a longtime employee of
Mr. Urralburu.
At this time Mr. Urralburu advised the inspector that he had
just started mining, and the Inspector advised Mr. Urralburu of
the requirement of 30 C.F.R. § 51.1000 for a mine operator to
notify MSHA before commencement of mining operations.
30 C.F.R. § 57.1000 states, "The owner, operator, or person
in charge of any metal and nonmetal mine shall notify the nearest
Mine Safety and Health Administration Metal and Nonmetal Mine
Safety and Health Subdistrict Office before starting operations
of the approximate or actual date mine operations will commence."
Other provisions of this regulation require that the
notification include the name of the mine, its location, the name
of the person in charge and other pertinent data.
Mr. Urralburu indicated, as his justification for failure to
provide such notification, that Union Carbide had filed such
papers for him in the past. The Inspector apparently did not
recognize this as legal justification sufficient to excuse the
violation, nor do I.
The violation consists, without more, of
the failure to notify MSHA of the contemplated commencement of
mining operations. The importance of such notification to
implementation of the safety program created by Congress is
obvious. It is therefore concluded that a violation of 30 C.F.R.
§ 57.1000 occurred as charged and an appropriate penalty therefor
will be subsequently assessed herein.
Findings with respect to Citation No. 2640414:
This Citation, actually issued on March_ 17, 1988, but back
dated to March 16, 1988, by Inspector Tobin, charges the
Respondent with failing to file a legal identity report in
accordance with 30 C.F.R. § 41.20. Without belaboring the point,
the record clearly establishes that Respondent did in fact fail
to file such report, and such failure in and of itself
constitutes the violation.
Accordingly, the Inspector's judgment in connection with the
issuance of this Citation is affirmed, and the violation charged
is found to have occurred.
Assessment of Penalties
At the hearing Petitioner presented documentary evidence
(Exhibit P-1) indicating that during the two-year period
preceding the issuance of the subject Citations Respondent had a
history of two prior violations.

516

Petitioner does not contend that either of the violative
conditions reflected in the two Citations was not promptly abated
in good faith by Respondent upon notification of such.
The record reflects, and Respondent has not established of
course at the hearing, or for that matter in pretrial submissions
prior to the hearing, that assessment of penalties at the level
sought by Petitioner would jeopardize its ability to continue in
business.
Based on information provided by the inspector on the face
of both Citations with respect to the likelihood of occurrence of
injuries and the contemplated severity of any such, neither
violation is found to be serious.
This operator, who is found to be a small mine operator, had
approximately 20 years of prior mining experience. Based
thereon, and the content of conversations with the issuing
Inspector at the time of the issuance of the Citations, it is
both found and inf erred that the Respondent had knowledge of the
requirements of the two regulations infracted and accordingly
Respondent is found to be negligent in the commission of both
violations.
Petitioner seeks assessment of $20 for each of the two
violations. Such is found appropriate and is here assessed.
ORDER
Citations numbered 2640413 and 2640414 are both affirmed.
Respondent, if it has not previously done so, is ordered to
pay the total sum of $40 to the Secretary of Labor within 30 days
as and for the civil penalties here assessed.

~~~!
/ Y:,tt1 ~ Michael A. Lasher, Jr.
Administrative Law Judge
Distribution:
Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Mr. Ben Urralburu, Urralburu Mining, P.O. Box 310, Nucla, CO
81424 (Certified Mail)
/bls

517

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

APR 5 1989
GEORGE H. ADKINS,
Complainant
v.
.

BOB & TOM COAL, INC.
Respondent

.
.
.
.
.

DISCRIMINATION PROCEEDING
Docket No. KENT 88-180-D
BARB CO 88-23
No. 5 Mine

ORDER OF DISMISSAL
Before:

Judge Maurer

The parties, by counsel, have jointly moved to dismiss the
captioned case on the grounds that they have reached a mutually
agreeable settlement. Under the circumstances herein, permission
to withdraw the complaint is granted. 29 C.F.R. § 2700.11. The
case is therefore dismissed, with prejudice, as requested by the
parties~ and the hearing set for April 13, 1989, in London,
Kentucky is cancelled.

urer
ative Law Judge
Distribution:
Margaret R. Barr, Esq., Tony Oppegard, Esq., Appalachian Research
and Defense Fund of Kentucky, Inc., P.O. Box 919, Barbourville,
KY 40906
(Certified Mail)
Otis Doan, Jr., Esq., P.s.c., 119-A First St., Harlan, KY
(Certified Mail)
/ml

518

40831

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

22041

APR 6 1989
RUSHTON MINING COMPANY,
Contestant
v.

CONTEST PROCEEDING
Docket No. PENN 89-82-R
Citation No. 2889823; 1/17/89

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

Rushton Mine

DECISION
Before:

Judge Broderick

STATEMENT OF THE CASE
Contestant Rushton Mining Company {Rushton) filed a Notice
of Contest on February 8, 1989, contesting the validity of
Citation 28809823 issued on January 17, 1989. The citation
charged a violation of 30 C.F.R. § 70.501 because an MSHAconducted noise survey showed that the noise standard was
exceeded in the environment of a roof bolter operator. The
citation fixed March 20, 1989 for termination of the violation.
The Secretary of Labor {Secretary) filed an answer and a motion
for continuance on February 27, 1989. On March 3, 1989, Rushton
filed a Motion for Summary Decision and a Motion for expedited
consideration. Following a conference with counsel, the
Secretary agreed to extend the time for abatement to April 3,
1989. On March 24, 1989, the secretary filed a cross-motion for
Summary Decision. I was orally informed by counsel for Rushton
that the hearing conservation plan referred to in the citation
has been submitted by Rushton to MSHA. The Secretary's
cross-motion states that the citation did not require the
submission of a hearing conservation plan in order to abate the
citation. It further states that abatement was achieved by
Rushton by lowering the noise levels in the affected area. On
March 31, 1989, Rushton filed a response to the Secretary's
cross-motion. The notice of contest challenged the designation
of the violation as significant and substantial. However,
neither motion has referred to this as an issue, and I have no
factual basis to make a finding whether, if a violation is
established, it was significant and substantial. Therefore, I
will not make a ruling on this question.

519

FINDINGS OF FACT
The parties agree that there is no dispute as to any
material fact in this proceeding. On January 10, 1989, Federal
Coal Mine Inspector Donald Klemick conducted a noise survey in
the 4th East 002 section of the subject mine. As a result of the
survey, he determined that the noise standard had been exceeded
in the environment of the roof bolter operator. Rushton does not
contest the inspector's determination. Therefore, I find as a
fact that the noise levels in the cited area exceeded the levels
permitted by the regulation. The inspector issued a citation
charging a violation of 30 C.F.R. § 70.501. He directed that the
violation be abated by March 20, 1989. The citation also states
that "a hearing conservation plan, as required by section 70.510,
shall be submitted to MSHA within 60 days from the date of this
citation." As I mentioned above, the Secretary states in her
motion that this language does not require submission of such a
plan in order to abate the citation, but was only "a reminder"
that the issuance of a citation under § 70.501 "triggers"
§ 70.510 which requires that such a plan be submitted within 60
days of the issuance of a citation. Therefore, I assume for the
purposes of this decision that the citation has been abated.
Rushton argues that the requirement to file a hearing
conservation plan is triggered not by a violation of § 70.501,
but by excessive noise levels disclosed in a supplemental noise
survey under § 70.509. This issue is not presented in this case:
MSHA concedes that the citation contested herein has been abated;
the submission of a hearing conservation plan was not required to
abate the citation. I am not ruling on the question whether 30
C.F.R. § 70.510 requires the submission of an effective hearing
conservation plan following the issuance of a citation under
§ 70.501 because of excessive noise levels found on an MSHA
conducted noise survey.
REGULATIONS
30 C.F.R. § 70.501 provides:
~very operator of an underground coal mine shall
maintain the noise levels during each shift to which
each miner in the active workings of the mine is
exposed at or below the permissible noise levels set
forth in Table I of this subpart.

Section 70.502 sets forth a formula for computation of
multiple noise exposure. Section 70.503 requires mine operators
to measure noise exposures of each miner in the active workings
of the mine. Section 70.504 directs that the measurement of
noise exposure be made by qualified persons certified by MSHA as
qualified. Sections 70.505 and 75.506 describe the necessary

520

equipment and procedures for measuring noise exposure. Section
70.507 requires an initial noise survey be performed before
June 30, 1971, and section 70.508 requires periodic noise surveys
with the results reported to MSHA. Section 70.509 provides that
if a noise exposure survey under § 70.507 or § 70.508 shows
excessive noise levels, a supplemental survey shall be conducted
by the operator within 15 days after notification by MSHA, and
the results reported to MSHA. Section 70.510 provides that if
the supplemental survey shows excessive noise, a citation shall
be issued, and the operator shall promptly institute measures to
assure compliance. The operator is also required by this
subsection to submit within 60 days of the date of the issuance
of the citation, a hearing conservation plan.
ISSUE
Whether a citation may be issued under section 104(a) of the
Act for a violation of 30 C.F.R. § 70.501 based on the results of
a noise survey conducted by an MSHA inspector showing an
excessive noise level?
CONCLUSIONS OF LAW
Rushton concedes that 30 C.F.R. § 70.501 "seems to indicate
that a noise survey indicating an excessive noise level is a
violation of the regulations." It argues, however, that
Subpart F of Part 70, 30 C.F.R. when read as a whole, indicates
that noise surveys are to be conducted by mine oerators. When an
operator's survey shows excessive noise levels, it is required
under § 70.509 to conduct a supplemental noise survey. Only if
the supplemental survey shows excessive noise, Rushton asserts,
is a citation to be issued.
Section 103 of the Act requires authorized representatives
of the Secretary to make frequent inspections of coal mines for
the purpose, inter alia, of determining whether there is
compliance with the mandatory health or safety standards.
Section 104 directs the Secretary or her authorized
representatives to issue a citation to the mine operator if she
believes the operator has violated any mandatory health or safety
standard. Section 206 of the act directs the Secretary to
publish proposed mandatory health standards establishing maximum
noise exposure levels for all underground coal mines.
It also
directs mine ooerators to conduct tests of the noise levels at
their mines. ~his provision was originally enacted as part of
the Federal Coal Mine Health and Safety Act of 1969. 30 C.F.R.
§ 70.500-70.511 (Subpart F) contains the noise standard
regulations. They were promulgated July 7, 1971, and amended
September 12, 1978, September 11, 1979, and June 29, 1982. The
regulations do not specifically provide that the Secretary's

521

representative may issue a citation for excessive noise disclosed
in an MSHA noise survey; neither do they forbid the issuance of
such a citation. In view of the responsibility placed on the
Secretary's representatives by § 103 and § 104 of the Act, to
imply such a limitation on the Secretary's authority because the
9perator is also required to take noise samples, would be an
extreme and unreasonable interpretation of the regulations.
Furthermore, the Secretary has, in her Program Policy Manual
issued July 1, 1988, specifically referred to MSHA-conducted
noise surveys and the issuance of citations under 30 C.F.R.
§ 70.501 for excessive noise exposures found in such surveys.
This constitutes an official interpretation of the regulation
which must be given deference.
Therefore, I conclude that the Secretary is authorized to
issue a citation for the violation of 30 C.F.R •. § 70.501 based on
the results of an MSHA-conducted noise survey showing an
excessive noise level.
ORDER
Basd on the above findings of fact and conclusions of law,
IT IS ORDERED:
1.

Citation No. 2889823 as modified is AFFIRMED.

2.

The Notice of Contest is DENIED.
~

-~/ i ~1<-C~

,)

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i. •t.'

./f-·,,,./·
/_ t'Z.·L. {. " r - .__.
A

1,,,,-~,~,:1

James A. Broderick
Administrative Law Judge

Distribution:
Joseph Yuhas, Esq., Rushton Mining Company, P.O. Box 367,
Ebensburg, PA 15931 (Certified Mail)
Therese I. Salus, Esq., u.s. Department of Labor, Office of the
Solicitor, 3535 Market St., Philadelphia, PA 19104 (Certified
Mail)
slk

522

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

APR 6 1989
ROGER L. STILLION,
Complainant
v.
QUARTO MINING COMPANY,
Respondent

.
.:

DISCRIMINATION PROCEEDING
Docket No. LAKE 88-91-D
MORG CD 88-3
Powhattan No. 4 Mine

DECISION
Appearances:

Thomas M. Myers, Esq., United Mine workers of
America, Shadyside, OH, for Complainant;
Michael Peelish, Esq., Consolidation Coal
Company, Pittsburgh, PA for the Respondent

Before:

Judge Fauver

Complainant brought this proceeding under § 105(c) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq, to recover compensation for his time spent as a
"walkaround representative" of miners during a federal mine
inspection.
Having considered the hearing evidence and the record as
a whole, I find that a preponderance of the ~,µbstantial,
reliable, and probative evidence establishes the following
Findings of Fact and additional findings in the discussion
that follows.
FINDINGS OF FACT
1. Around August 1987, the Quarto Mining Company
entered into a. contract with A&C Construction Company, for
the hauling of top soil and the removal of trees and brush
at its Powhattan No. 4 Mine.
2. A&C Construction Company had about 12 to 15 employees
performing contract work, and Quarto Mining Company had about 12
of its employees working in and about the same area as the A&C
employees. Quarto employees were hauling rocks and stones from
stone bins to the top of the hill where A&C Construction
employees were working.
3. Shortly after A&C commenced its project on the
Quarto Mining property, rank-and-file Quarto employees began

523

complaining to Ron Winkler, the outside safety committeeman,
and to other union officials, with respect to the manner in
which A&C employees were driving their trucks, and also with
regard to a dust problem on the haul road and the lack of
backup alarms on A&C equipment. Several Quarto employees
raised similar complaints about A&C Construction employees
and their equipment at the September, 1987, union meeting of
Local Union 1785. Complainant, a union member, had also
observed several of the complained-of conditions himself.
4. After the local union meeting at which the various
complaints had been raised, safety committeeman Ted Hunt
placed a Code-a-Phone call to MSHA, requesting that an
inspection be conducted concerning A&C's equipment.
5. The haul road from the top of the hill, where the
gob pile was located, to the bottom near ~oute 7 was a
winding road and had areas cut out for the purpose of
yielding the right-of-way.
One of the complaints of Quarto
employees was that A&C employees were not yielding the
right-of-way. Quarto employees, as a part of their training,
knew that the wide areas were designed to allow empty trucks
going downhill to yield the way to loaded trucks which were
going up the hill.
6.
In response to the Code-a-Phone complaint by the
union, MSHA Inspector Homko came to the Quarto property on
October 2, 1987, and began an inspection of the A&C equipment.
During that inspection, a walkaround representative for Local
Union 1785, a Quarto employee, was paid for his participation
as a walkaround, and was joined by Quarto safety
representative Percy Hawkins.
7.
During the inspection, one Quarto employee told the
inspector that the A&C Construction employees were not
yielding the right-of-way.
8. The inspection continued into the following week.
In that week, Complainant Stillion was asked by mine safety
committeeman Ted Hunt to accompany the federal inspector as a
union walkaround on the remainder of the inspection of A&C's
equipment.
On October 6, Complainant met Inspector Gary
Gaines to tell him that he was going to accompany Gaines as
the walkaround for the remainder of the inspection, and
Respondent's representative told Complainant that he would
not be paid for his time spent with Inspector Gaines.
9. Quarto's refusal to pay Complainant reflected a
change of policy.
For about 16 years before this inspection,
union representatives had accompanied federal inspectors on

524

both regular general mine inspections and specific
inspections which were aimed at the inspection of
contractors' equipment only, and were compensated by Quarto
in both cases.
10. On October 6, 7 and 8, 1987, Complainant Stillion
traveled with Inspector Gaines but was not paid for any of
his time spent on the inspection. As a result of the
inspections conducted by Inspectors Homko and Gaines, several
citations were issued to the A&C Construction Company.
11. The reason for the Code-a-Phone call to MSHA was
the concern of safety committeeman Hunt for the safety of
Quarto employees, based upon by the various complaints
which Quarto employees had made concerning the safety of A&C
equipment and the manner in which the equipment was being
operated by A&C employees.
DISCUSSION WITH FURTHER FINDINGS
The basic issue is whether Complainant, a walkaround
representative of Quarto's miners, was entitled to be paid
under§ 103(f) of the Act
for the time he participated in a
federal inspection of A&C's equipment at Quarto's mine. The
inspection was at the request of the Quarto employees through
their miners' representative. The request was transmitted by
Code-a-Phone to MSHA and, for the purpose of this Decision,is
treated as an inspection request made under§ 103Cg}(l} of
the Act.
Section 103Cg>Cl> provides in part:
Whenever a representative of miners • • • has
reasonable grounds to believe that a violation of
this Act or a mandatory health or safety standard
exists, or an imminent danger exists, such • • •
representative shall have a right to obtain an
immediate inspection by giving notice to the
Secretary or his authorized representative of such
violation or danger. * * *
Section 103(f} provides in part:
Subject to regulations issued by the
Secretary, a representative of the operator
and a representative authorized by the miners
shall be given an opportunity to accompany
the Secretary or his authorized representative
during the physical inspection of any coal or
other mine made pursuant to the provisions of

525

subsection {a), for the purpose of aiding such
inspection and to participate in pre- or postinspection conferences held at the mine.
* * *
Such representative of miners who is also an
employee of the operator shall suffer no loss of
pay during the period of his participation in the
inspection made under this subsection. * * *
In United Mine Workers of America v. FMSHRC, 671 F. 2d
615 CD.C. Cir. 1982), cert. denied, 459 U.S. 927, the D.C.
Circuit Court of Appeals examined§ 103{f) in depth to
determine whether Congress intended to grant walkaround
rights to miner representatives for spot or specific hazard
inspections, in addition to "regular" inspections required by
§ 103(a) of the Act. The court held that "spot" inspections
are authorized by and made pursuant to§ 103{a) of the Act
and are therefore covered by the walkaround compensation
rights granted by§ 103(f). In reaching this holding, the
court gave weight to the Secretary's Interpretative Bulletin
of April 19, 1978 (43 Fed. Reg. 1754-47 (1978)), observing
that the Secretary's interpretation is entitled to deference
and that the Act, as safety legislation, is to be liberally
construed to effectuate the Congressional purpose. The court
stated further:
We agree with the Secretary that under
Section 103Cf) miner representatives are entitled
to walkaround pay rights with respect to any
physical inspection of a mine carried out under
Department of Labor auspices for the purpose of
determining "whether an imminent danger
exists," or "whether there is compliance with the
mandatory health or safety standards or with any
citation, order, or decision issued under this
subchapter or other requirements of this chapter."
The Secretary's interpretative bulletin also interprets
§ 103(f) as applying to inspections made at the request of a

representative of the miners. Indeed, no significant
distinction could be made in applying§ 103{f) to spot
inspections as well as§ 103(g)(l) inspections because the
authority for both kinds of inspections ultimately derives
from§ 103(a) of the Act. Section 103Cg) inspections are
therefore subject to the walkaround pay requirements of §
103(f).
CONCLUSIONS OF LAW
1.

The judge has jurisdiction over this proceeding.

526

2. Respondent violated§ 103(f) of the Act by refusing
to pay Complainant his regular rate of pay for his time spent
accompanying a federal mine inspector on October 6, 7, and 8,
1987.
ORDER
1. The parties are directed to confer within 15 days of
this Decision in an effort to stipulate the amount of
Complainant's back pay (with accrued interest computed
according to the Commission's decision in Local Union 2274,
UMWA v. Clinchfield Coal Co., 10 FMSHRC 1443 (1988), pet. for
review Filed; No. 88-1873 CD.C. Cir. Dec. 16, 1988)) and
Complainant's litigation expenses, including a reasonable
attorney's fee.

2. Within 30 days of this Decision, Complainant shall
file either a stipulated proposed order awarding monetary
relief signed by both parties i i or, if there is no
stipulation, Complaint's proposed order awarding monetary
relief.
If there is no stipulation, Respondent shall have 10
days after the proposed order is filed to file a response.
If appropriate, an additional hearing will be scheduled to
resolve any issues of fact as to monetary relief.
3. The above Decision will not become final until an
order is entered awarding monetary relief and declaring the
above Decision to be final. The judge will retain
jurisdiction of this proceeding until such an order is
entered.

-u}~
~~.,tl'LWilliam Fauver
Administrative Law Judge

1/ Respondent's stipulation of a proposed order awarding
monetary relief will not limit its right to seek review of a
final Decision and Order entered in this proceeding.

527

Distribution:
Thomas M. Myers, Esq., General Counsel, UMWA, District 6,
56000 Dilles Bottom, Shady side, OH 43947 (Certified Mail)
Michael R. Peelish, Esq., Quarto Mining Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)

iz

528

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

22041

APR 6 1989
RODNEY CHANEY,

DISCRIMINATION PROCEEDING
Complainant

v.
JOHNNY TACKETT,
(GILLETTE COAL COMPANY)
Respondent

Docket No. KENT 88-82-D
PIKE-CD-88-03

.
.

ORDER OF DISMISSAL
Before:

Judge Maurer

Respondent, by counsel, has moved to dismiss the subject
complaint because of the complainant's continued failure and
refusal to abide by the Commission's Rules of Practice or
otherwise cooperate with the respondent to facilitate the trial
of this case.
More specifically, on August 30, 1988, a Notice to take the
deposition of the complainant and a request for production of
documents was served upon the complainant. The complainant did
not appear for the deposition or produce the documents, even
though the deposition was once postponed at the request of the
complainant and rescheduled at his convenience. Again, on
February 14, 1989, a notice to take the deposition of the
complainant and a request for production of documents was served
upon the Complainant. Once again, the complainant failed to
appear for his deposition or produce the requested documents.
Additionally, I note that I have scheduled this case and
noticed it for hearing on three occasions. Once before, I have
continued it at the request of the complainant and this last time
because the complainant has failed and refused to cooperate with
the normal discovery processes available to the parties to
prepare their cases. I further note that complainant has never
complied with the prehearing order issued by the undersigned on
any of the three occasions that the case has been set down for
hearing.
On March 7, 1989, an ORDER TO SHOW CAUSE was issued by the
undersigned, wherein the complainant was ordered to show cause
within ten (10) days as to why this proceeding should not be
dismissed for "failure to prosecute his complaint or otherwise

529

cooperate with the respondent to facilitate the trial of this
case. There has been no response received to date with regard to
this order or the respondent's motion to dismiss.
Accordingly, respondent's motion to dismiss IS GRANTED and
this case IS DISMISSED.

Distribution:
Robert J. Breimann, Esq., Street, Street, Street, Scott, &
Bowman, P.O. Box 2100, Grundy, VA 24614
(Certified Mail)
Mr. Rodney Chaney, Rt. 1, Box 105A, Kingston, TN
(Certified Mail)
/ml

530

37763

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

22041 .

APR 6 1989

LOCAL UNION 1570, DISTRICT 31,:
UNITED MINE WORKERS
OF AMERICA CUMWA),
Complainants

COMPENSATION PROCEEDING
Docket No. WEVA 88-227-C

. Federal No. 2 Mine

v.
ASSOCIATED COAL
CORPORATION,
Respondent

E~STERN

DECISION
Appearances:

Joyce A. Hanula, Legal Assistant, United Mine
Workers of America, Washington, D.C., for the
Complainants;
Eugene P. Schmittgens, Jr., Esq., Eastern
Associated Coal Corporation, Pittsburgh,
Pennsylvania, for the Respondent.

Before:

Judge Koutras
Statement of the Proceeding

This proceeding concerns a claim for compensation filed
by the UMWA against the respondent pursuant to the third

sentence of section 111 of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 621, seeking compensation for miners
employed at the captioned mine who were idled for 3-1/2 shifts,
from 8:00 p.m., on February 9, 1988, to midnight on
'February 10, 1988. The UMWA contends that the mine was idled
as a direct result of two section 104(d)(2) orders issued at
the mine by an MSHA inspector, and the respondent maintains
that the mine was idled because of a legitimate business
decision by mine managa~ent. A hearing was held in Morgantown,
West Virginia, and the parties filed posthearing arguments in
support of their respective positions. I have considered these
arguments in the course of my adjudication of this matter.

531

Issues
The issues presented are (1) whether or not the orders in
question were final orders within the meaning of the Act:
(2) whether the mine or miners .were idled by those orders: and
(3) whether the miners are entitled to compensation.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

Commission Rules, 29 C.F.R. § 2700.l et ~·

Stipulations
The parties stipulated to the following:
1. The members of Local Union 1570 are
employed at Eastern's Federal No. 2 Mine.
2. The UMWA is the authorized representative of the members of the Local Union 1570.
3. The Federal No. 2 Mine is a mine whose
operations and products affect interstate
commerce.
4. On February 8, 1988, at 6:25 p.m.,
MSHA Inspector Michael G. Kalich issued Order
No. 2943582 pursuant to Section 104(d)(2).
Order No. 2943582 applied to the Federal No. 2
Mine. A copy of said order was attached and
marked as Exhibit A to the joint stipulations
of fact.
5. On February 10, 1988, at 12:00 noon,
Order No. 2943582 was vacated. A copy of the
document vacating said order was attached and
marked as Exhibit B to the joint stipulation of
fact.

6. On February 8, 1988, at 6:30 p.m.,
MSHA Inspector Michael G. Kalich issued Order
~o. 2943583 pursuant to Section 104(d)(2).
Order ~o. 2943583 applied to the Federal ~o. 2
Mine. A copy of said order was attached and
1narked as Exhibit C to the joint stipulation of
fact.

532

7. On February 10, 1988, at 12:00 p.m., .
Order No. 2943583 was modified. A copy 0£ said
modification was attached to the joint stipulation of fact and marked as Exhibit D.

8. Order ~o. 2943583 was termin~ted at
3:05 p.m., on February 10, 1988. A copy of
said termination was attached to the joint
stipulati6n of fact and marked as Exhibit ~.
9. The above referenced orders restricted
Eastern from operating the 14 Right 3 South
Longwall section.
10. After the issuance of the above
referenced orders, the Federal ~o. 2 Mine
continued to operate 2-1/2 shifts.
11. The Federal No. 2 Mine was idle from
8:00 p.m., on February 9, to midnight
February 10, 1988.
12. Miners returned to work on the
12:00 a.m. shift on February 11, 1988.
13. The names of the miners idled, their
idle time, rate of pay, and alleged lost wages
was attached to the joint stipulation of fact
and marked as Exhibit F.
14. The aforementioned Ordec Nos. 2943582
and 2943583 were not contested under Section
105{d) of the Federal Mine Safety and Health
Act of 1977.
15.
It is the position of the UMWA that
the Federal ~o. 2 Mine was idled as a direct
result of the above referenced orders.
16.
It is the position of Eastern that
the mine was idled as the sole result of a
business decision made by management at the
Federal No. 2 Mine.
Complainant's Testimony and Evidence
MSHA Inspector Michael G. Kalich testified that he visited
the mine on February 8, 1988, after being instructed to do so

533

by his field supervisor who had received a call that the respondent was operating its longwall section. Mr. Kalich stated
that at the time of his inspection of the longwall section a
pr~viously filed petition for modification seeking relief from
the requirements of mandatory safety standard 75.1002, was
still pending for decision by MSHA. He confirmed that he
issued section 104(d)(2) Order No. 2943582, on February 8,
1988, at 6:25 p.m., citing a violation of section 75.1002, and
that he did so because of the respondent's failure to comply
with one of the conditions of the petition, namely paragraph 7,
which required the respondent to provide overtemperature protection for the high-voltage neutral grounding resistor used in
the high-voltage circuit supplying the longwall power center
(exhibit R-2, Petition for Modification filed December 1, 1987).
Mr. Kalich issued the order because he found that the longwall
power center was energized, that some amount of coal had been
produced, and the overtemperature device required by
paragraph 7 of the petition had not been installed (Tr. 6-8).
Mr. Kalich confirmed that he subsequently vacated Order
No. 2943582 after being informed by his supervisor that he
could not issue a violation based on a pending petition for
modification which had not been granted. He also confirmed
that he could not have issued the order citing a violation of
section 75.1002 independent of the modification petition
because the power center was outby the area, and the vacated
order in question was based on paragraph 7 of the pending
modification petition rather than on section 75.1002. He
explained that he cited a violation of section 75.1002
"because that is what the petition is based on, relief of that
standard," but he confirmed that the cited condition was not
in violation of section 75.1002 (Tr. 9-11).
Mr. Kalich confirmed that he issued the second section
104(d)(2) Order No. 2943583, at 6:30 p.m., on February 8, 1988,
on the longwall section citing a second violation of section
75.1002, because he found that the high voltage cables on the
section were located inby the last open crosscut and were
withi~ 150 of the pillar workings.
These conditions were independently in violation of the requirements of section 75.1002,
and he based the order on that section rather than on paragraph 7 of the pending modification petition. Since he could
not base the order on the petition, he simply included the
language referencing the petition from the prior vacated order
as part of the subsequent Oeder No. 2943583, by modifying it
on February 10, 1988 (Tr. 8, 11-12; Exhibits C & D, stipulations). Mr. Kalich confirmed that the order was terminated on
February 10, 1988, by another inspector who was reyularly
assigned to the mine (Tr. 12; Bxhibit E, stipulations).

534

On cross-examination, Mr. Kalich stated that he never
closed the mine or required that any miners be withdrawn, and
that "I just required that the power center be de-energized"
(Tr. 13). With regard to the cited overtemperature device
mentioned in Order No. 2943582, he confirmed that "it was
repaired after I issued the order," and a copy of the order
reflects that it was terminated at 7:35 p.m. the same evening
that it was issued (Tr. 13; Exhibit A, stipulations). He
confirmed that with respect to both orders, he simply required
the power to be deenergized, and that by doing this, no coal
could be mined but that "they could do any kind of setup work
they wanted to do" (Tr. 18). Although he did not remain at
the mine after he issued the first order, he "heard that men
were laid off" (Tr. 18).
Terry Osborne UMWA District #31, International Safety
Representative, testified that he was familiar with the modification petition in question and that prior to its filing and
the issuance of the orders by Inspector Kalich, representatives of the UMWA and mine management were meeting to discuss
the conditions to be included in the petition for its approval.
The last meeting was held on January 29, 1988, and as of that
date, the UM.WA had not agreed upon the terms for approval of
the petition. When he learned from the local union president
that the respondent intended to operate the longwall while the
petition was still pending, he placed a call to MSHA and
requested an investigation into the possibility of the longwall being operated with high voltage at the face without the
petit~on being granted.
As a result of this call, MSHA
inspectors were sent to the mine on the afternoon shift when
the orders were issued. The petition was subsequently granted
on February 10, 1988, 2 days after the orders were issued (Tr.
19-22) •
On cross-examination, Mr. Osborne confirmed that in the
course of the meetings with mine management with respect to
the petition, the future of the mine was discussed, and mine
management expressed the view that in the event the petition
were not granted the mine would "suffer severe consequences"
(Tr. 23). Mr. Osborne stated that mine management advised the
union that if the petition were not granted the mine would be
shut down and that "This mines will not operate unless the
petition is granted and this longwall is running" (Tr. 24).
Mr. Osborne agreed that longwalls produce more coal more
efEiciently than continuous miners, and that unless coal is
mined economically the mine will not make ~oney. He also

535

agreed that the mine operator may decide ~hich method of mining to .use in its mine, and that layoffs occur in the mining
industry for mines which do not make ~oney (Tr. 25). He
stated that the mine had in the past operated for years with a
longwall without the necessity.for filing a petition and
without high voltage at the face of the longwall, and that
"they did excellent" (Tr. 28).
Larry ~nis~ll, president of the local union and member of
the mine safety and health committee, testified that he was
familiar with the modification petition in question and the
ocd~rs issued by Inspector Kalich.
He confirmed that he took
part in the meetings with mine management with regard to the
petition and that the local union did everything it could to
"help it along," and he realized that management needed the
high voltage at the longwall (Tr. 30).
Mr~ Knisell stated that he learned that the longwall had
been running on February 8, 1988, the day the order was issued.
He confirmed that when the order was issued, the miners worked
the rest of that day, and that on February 9, the four to
twelve shift was idle for 4 hours, and that on February 10,
"there was some work done in the mines." The 15 longwall
development section was being "driven up one side to set the
longwall on," and that coal was being produced on the 15 ~ight
3 South Section. He did not know whether any other sections
were producing coal at this time (Tr~ 32). He confirmed that
it was common knowledge at the mine that if the petition were
not ultimately approved there would be "serious economic
consequences," and that he became aware of this sometime in
January, 1988 (Tr. 32).

Respondent's Testimony and Evidence
General Mine Superintendent Mick Toth testified that the
February 8, 1988, order issued by tnspector Kalich was of "no
importance" because the reason for not operating the longwall
was the fact that the petition for modification had not been
granted. Mr. Toth confi.r..:ned that he was never told that the
inspector had closed the ~ine or reqgired the withdrawal of
any miners at the longwall or any other section of the mine.
He explained that meetings and discussions were neld with
union representatives, MSHA personnel, and mine management as
early as 3-weeks prior to the granting of the petition, and he
advised everyone concerned that "there would be some economic
.impact to the mines" .if the petition were not granted (Tr. 43).
Mr. Toth identified a copy of a memorandum dated January 13,
1988, addressed to the resoondent's law deoartment, ~hich he
sent at their request, makln3 it =.tware of the economic impact

536

resulting from the unavailability of the longwall (Tr. 45-46;
Exhibit R-1). He also identified a copy of a letter dated
January 13, 1988, from the respondent's attorney to MSHA
requesting expedited consideration of the modification petition, and advising MSHA of the-adverse economic impact on the
mine if the petition were not granted (Tr. 47; Exhibit R-2).
Mr. Toth stated that the mine is a profitable mine, and
he confirmed that it produces coal on a longwall section and
four belt and continuous miner sections. He explained the
coal production figures, and confirmed that by February 3,
1988, all of the available coal on the longwall panel had been
mined, and that no coal production took place on that longwall
.from February 3 to February 8, 1988 CTr. 49-52). He produced
copies of the mine production records for January and
February, 1988, and confirmed that for the period January 29
to February 3, 1988, coal production on the longwall was
reduced by 110,000 tons (Tr. 55; Exhibits R-3 and R-4).
Mr. Toth stated that during the period from February 3 to
the afternoon shift on February 9, no miners were idled, and
he confirmed that if the petition for modification had been
granted prior to February 9, the mine would not have been
closed (Tr. 56). He explained that the power was on the
longwall section on February 8, in order to make the necessary
startup "trim pass" adjustments in anticipation of the granting of the modification petition. Mr. Toth stated further
that power was on the section a week earlier, and none of the
union representatives or MSHA inspectors who were at the face
objected. He confirmed that he had no intention of mining
coal on the longwall until the petition was granted, and that
the section 104(d)(2) orders had nothing to do with his
decision to idle the mine on February 9 (Tr. 57-58).
On cross-examination, Mr. Toth confirmed that the modification petition was filed on December 1, 1987, and that the
approval process is time consuming. tn instances of previously
.filed petitions, "interim relief" was available to a mine operator pending final approval by MSHA, but this procedure is no
longer available. ~!though he believed that the union did
everything it could to support the petition, delays and
disagreements with respect to the conditions upon which the
petition could be approved were encountered (Tr. 60).
Mr. Toth confirmed that the longwall section in question
was energized on February 4 or 5, and the cables were energized
so that equipment could be moved. He stated that he made
several calls to MSHA personnel and they informed him that if
the petition had not been granted they could not advise him to

537

put the long-wall into production, and apart from any "tri,n
pass," no coal production was started on the longwall until
final approval of the petition was received (Tr. 63-64).
Mr. Toth also explained that the power was on so that the MSHA
inspectors could check all electrical connections and startups
to confirm that the conditions under which the petition were to
be granted were being followed, and that this was taking place
on or about February 4 (Tr. 67).
Mr. Toth explained that during the day shift on
February 8, a "trim pass" was made on the longwall section,
and this process included necessary adjustments to the
shearing machine cable and chain. He stated that this process
did not involve the normal production cutting and mining of
the coal, and that the "trim" only cut away 2 inches of coal,
rather than the usual 30 inch cut taken during normal production. The longwall shields were not advanced, there were no
roof falls behind the shields, and there was no gob. The
section was "active," the power was on, miners were working,
and he believed that the belt was running to take out the
trimmed coal (Tr. 73-74). Mr. Toth confirmed that all of the
miners who were subsequently idled were working and involved
in this process on February 8, and that the petition had not
been approved as of that date. He stated that everyone at the
mine was aware of the fact that the petition had not as yet
been approved at that time (Tr. 79-80). Mr. Toth could not
recall speaking with union president Knisell after the orders
were issued (Tr. 81).
In response to a question as to why the miners were idled
on February 9, Mr. Toth responded as follows (Tr. 81-82):
The reason for the idlement on
February 9th, you have to realize that
throughout this whole period it was always
getting right on the edge, yeah, we'll have it,
or already been sent by FAX, the MSHA off ice,
as soon as you get there in the morning, it'll
be there at your mine.
That had gone on for several days. ! went
along with that. I didn't want to idle any
miners.
I want to make every dime I can make
and mine every ton of coal I can mine. But the
fact was that on February 9th I just got
completely fed up hearing all I was going to
hear about being there in the next hour or two.
It dealt -- there were some pretty big losses
throughout this period.

538

I felt from the period January 28th until
the time they granted the petition which was
the 10th of February, I just couldn't take no
more losses. Economic factors, that was my
sole reason for doing what I did, and it was
something I didn't want to do, but had to do.
Mr. Toth stated that the four continuous miner sections
which were in operation on February 8, accounted for approximately 25 percent of the mine production, and that he had full
crews working that day. Only one of these developing sections
was working on February 10, and the only miners working on
this day were those who he believed were necessary to start up
the longwall in order to bring the other miners back to work.
The longwall started into production on February 11 (Tr.
86-87).
Frank Peduti, Respondent's chief maintenance supervisor,
testified that he is responsible for all mine electrical
activities. He confirmed that he was at the 14 ~ight Longwall
section on February 8, 1988, making certain adjustments in
preparation "to set up the new longwall section" (Tr. 111).
He discussed the modification petition with Inspector Kalich,
and whether or not an additional overtemperature device had
been installed in the load center. Mr. Peduti stated that "I
had the part in hand" and that it took 15 minutes to install
it (Tr. 112).
On cross-examination, Mr. Peduti stated that at the time
he spoke with the inspector and installed the overtemperature
device, as well as before going underground that day, he did
not "assume one way or the other" that the modification
petition had not as yet been granted (Tr. 113).
Mick Toth was recalled and explained that the drop in
coal production after the modification petition was granted,
as shown by his production records, was due to the fact that
after mining for 100 feet with the longwall startup, rock
displacement was encountered, and throughout the end of
February and the first 2 weeks of March "we encountered some
difficult problems on .that particular longwall panel" <Tr.
120). He reiterated that the order issued by Inspector Kalich
had nothing to do with his decision to idle the mine, and he
explained that he was aggravated and frustrated over the
promises and assurances that the modification petition
approval was imminent, and when it did not materialize "I just
couldn't wait no longer.
I got myself where I had no longwall
production. I was in some big losses and I had no other

539

choice but to do what I did. That order had nothing to do
with that" (Tr. 12lt 124). Mr. Toth further explained as
follows at (Tr. 121-125):

Q. Could you have used these men on anything
else?
A.

Not and make money.

Q. Could you have used them on anything else?
What do you mean "not make money?" Couldn't
you .have used them on the other section, the
continuous mining section?
A. No-- Yeah, I could have used them. I
could have. I've got 580 people at that coal·
mine and what justified that employment of 580
people is the amount of tons and amount of
p~cif it :to be made.
If those profits and tons
aren't made,. ther·e' s a reasoning for that. The
reasoning for that p_eriod of time was the lack
6f the granted Petition for Modification that
had been filed for.

*

·*

*

*

*

*

*

A.

There were other people that worked in the_
Like I say, there were other people that
worked throughout that period that the mine was
idled on a development s·ection. We had a
crucial situation at that coal mine on our
developments keeping up with retrieve. And the
development that I had 9reat concerns about was
one immediately outby the longwall.

mine~

*

*

*

*

*

*

Q. I'm not going to put myself in the position
to cross-examine you, but this next question.
What better way of getting someone's attention
to shut the whole mine down? I mean, if I were
the superintendent and being frustrated, I'd
·say, well, the heck with it, I'm just going to
shut her down and let's see if we can't get
some action on that petition. Is that what
.happened?
~.
That's basically what happened. We had no
petition and we just -- what we didn't need,

540

you know -- I can't employ 500 people if I
don't have any work for them. I worked what I
could and I worked areas I thought were crucial
to the future of that coal mine. What I didn't
work I didn't need or I'd.have worked thein.
Complainant's Arguments
In its posthearing brief, the UMWA asserts that since the
respondent did not contest the section 104(d)(2) Order
~o. 2943583, issued by Inspector Kalich at 6:30 p.m., on
February 8, 1988, it waived its right to challenge the order
pursuant to section lOSCd) of the Act, and that in the circumstances, the order has become final. Since the third sentence
of section 111 of the Act provides that compensation is due
after an order upon which it is based is "final," the UMWA
states that the next critical issue to be resolved is whether
a nexus existed between the order and the miners being idled.
Local Union 781, District 17, UMWA v. Eastern Associated Coal
Coro., 3 Fr'1SHRC 1175 (May 19 81); Local Union 1889, District 17,
UMWA v. Westmoreland Coal Co .. , 8 FMSHRC 1317 (September 1986)
and Local Union 2333, District 29, UMWA v. Ranger Fuel Corp.,
10 FMSHRC 612 (May 1988).
The UMWA asserts that the order in question restricted
the longwall section from operating until the pending petition
for modification was granted, and that this in turn forced the
respondent to idle the entire mine because it would not be
economically feasible to operate it at a reduced productivity
level. Under these circumstances, the UMWA concludes that a
"nexus" existed between the issuance of the order and the
idlernent of the miners. In support of its position, the UMWA
maintains that the evidence presented clearly demonstrates
that the mine would have continued to work through the period
of idlement "but for" the issuance of the order. The TJMWA
asserts that the evidence shows that the respondent was "fed
up" with MSHA's delay in acting on the petition for modification and that Mine Superintendent Mick Toth believed that the
economic situation required him to start up the high-voltage
longwall, even though he did not have the necessary modif ication from the requirements of 30 C.F.R. § 75.1002. The UMWA
concludes that it is ~vident that the respondent intended to
mine coal without the necessary modification and would have
continued to do so had the inspector not issued the withdrawal
order.
Citing the Commission's decisions in Local Union 5869,
District 18, UMWA v. Youngstown Mines Corp., 1 FMSHRC 990
U\.ugust 1979), Local Union 3453, District 17, UMWA v. Kanawha

541

Coal Co., 1 FMSHRC 1315 (September 1979 >, and Local Union 1670.,
District 12, UMWA v. Peabody Coal Co., 1 FMSHRC 1785 (November
1979), the UMWA argues that the fact that the mine continued to
work two and one-half shifts after the order was issued does
not preclude the miners from receiving compensation because the
order was still outstanding when the miners were idled. Citing
the Local Union 5869, District 17, UMWA v. Youngstown Mines
Corp., case, the UMWi\ points out that a withdrawal order was
issued on the afternoon shift and miners on that shift were
withdrawn from production work and detailed to work abating the
violation. Every miner who worked on the afternoon shift was
paid for the entire shift, but the evening shift employees who
were also assigned to abatement work worked only 4 hours and
were then sent home. The evening shift employees were paid for
the first 4 hours they worked but not for the remaining 4 hours
of the shift.
In response to a compensation claim filed
seeking compensation for the 4 hours of the evening shift that
did not work, the Commission granted them compensation for the
4 hours and stated as follows at 1 FMSHRC 992:
[Alt the time the miners were sent home the
withdrawal order was still outstanding. But
for the withdrawal order, the miners would have
worked and received compensation for the final
hours of their shift.
Respondent's Arguments
In its posthearing brief, the respondent concedes that it
did not contest the order in question within the required
30 days. However, citing Secretary of Labor v. Quinland Coals,
Inc., 9 ~MSHRC 1614, 1620 (Seotember 1987), the respondent
points out that while it has the opportunity to contest the
validity of the order at the civil penalty phase, MSHA has indicated there has been no civil penalty assessment proposed for
the violation cited in the order, and that no assessment will
be made. Furthec, citing Local Union 1810 v. Nacco Mining
Company, 9 FMSHRC 1349 (August 1987), holding that a mine operator's rights under section lOSCd) of the Act must be either
exhausted or waived before the Commission may order compensation pursuant to section 111, the respondent suggests that it
has not been given its full ~ights to contest the order and
that the Commission does not yet have jurisdiction in this case.
Tn the alternative, respondent points out that since MSHA has
indicated that it would not be issuing a civil penalty assessment in this matter, and in light of the approval of its petition for modification, it appears that the order in question
has been de facto vacated.
If this is the case, respondent

542

further suggests that the Commission may proceed to decide this
case.
With regard to the merits of the compensation claim, the
respondent maintain~ that the idled miners are not entitled to
compensation pursuant to section 111 of the Act because they
were not idled by the order in question and the evidence fails
to establish any nexus between the issuance of the order and
the idlement and closure of the mine some two and one-half
shifts after it was issued. Respondent points out that the
UMWA has conceded that if the mine had been idled on
January 29, 1988, until the modification petition was ultimately granted on February 11, 1988, there would be no case
(Tr. 76-77), and that presumably, the local union membership
would then have been without recourse for approximately
2 weeks of lost wages.
Respondent suggests that the union
would have the Commission "punish" the respondent for keeping
its membership working through significant economic losses
notwithstanding the fact that section 111 of the Act was not
designed for this purpose.
In support of its position, the respondent asserts that
in the absence of a nexus between a designated withdrawal
order and the miners' idlement and loss of pay, or between the
underlying reasons for the idlement and pay loss and the
reason for the order, compensation pursuant to section 111 of
the Act is not available. Respondent argues that section 111
is not intended to be punitive, but recognizes that miners
should not lose pay because of the operator's violations, or
because of an imminent danger which was totally outsid~ of
theic control. Quoting from Local Union No. 781 v. Eastern
Associated Coal Coro., supra, respondent states that "mere
occurrence, alone of withdrawal or idlement and issuance of an
order does not, by itself, justify compensation," and that
miners are considered to be idled by a withdrawal order whenever the order prevents the:n f com working / Local Union 3454 v.
Kanawha Coal, supra.
The respondent maintains that the overwhelming evidence
in this case clearly shows that the cause of the idlement of
the miners was due to the severe econoffiiC losses suffered by
the mine from January 28, until February 9, 1988, and that as
eacly as January 13, 1988, mine superintendent Toth advised
the respondent's legal counsel that it would not b~ economically feasible to operate the mine at reduced producti~ity
without the longwall, and that drastic workforce reductions
would be i nevi t:i.ble.
A.t approximately the saine tiine, represent3. ti '1es of the UMW.A union local and international were
advised of the possibility of layoffs without the approval of

543

the modification petition. Since this occurred approximately
1 months before the mine was idled, the respondent concludes
that the idlement of the mine was contemplated well in advance
of the issuance of the order, and that the evidence shows a
consistent approach by the respondent to the economic realities
it faced.
Respondent states that the evidence establishes that mine
management attempted to keep the mine open, and that when the
operational longwall was mined out some 2 weeks before the
order was issued, management opted to extend the panel some
300 feet so that the mine would not have to be idled. Although
this action by management resulted in a 50 percent reduction of
production capacity, and ended on February 3, 1988, when the
coal could no longer be mined safely, the mine still remained
open for approximately 1 week even with no longwall production.
~espondent points out that when the order was issued on
February 8, 19 88, the mine re;nained opened, and Inspector
Kalich testified that he was neither withdrawing miners from
the mine, nor was he withdrawing them from the 14 Rt. 3 South
Longwall section. Contrary to the UMWA's contention that the
order caused the mine to be idled, respondent maintains that
the evidence shows that only a few miners assigned to the longwall section ever were idled, and that the obvious implication
is that t~ven after the mine was closed the workers at the
affected section were never idled, and that the order did not
prevent the miners from working.

The respondent views the UMWA's assertion that the sole
reason f::>r the idlement of the mine was the order issued by
Inspector Kalich, as implausible in that "it would be a quantum leap in logic to presume" that the information communicated to the union by mine management relative to the economic
implications of the failure to obtain the modification petition was somehow created by management to "jack with the
union."
If anything, the respondent concludes that management
took a consistent approach to keep the mine open and to keep
the union local's membership working. Since the UMWA has
acknowledged the respondent's authority to close a mine if it
is not profitable, respondent concludes that this authority
presumably also applies to a section of the mine as well.
Since the logical implication of the evidence is that the
order did not requir2 the mine to be closed, respondent maintains that other factors were involved, namely the economic
conditions expressed in its January 13, 1988, correspondence,
as ·.vell as the meetinJs held with UM"wA :;nembers.

544

Applying the Commission's observations in Local Union
No. 781 v. Eastern Associated Coal Corp., supra, that it would
"examine the relationship bet\'leen the underlying reasons for
the withdrawal and for the order, and will give balanced
consideration both to the limited and purely compensatory
character of section 111 and to the overall safety purposes of
the 1977 Mine Act and section 111 itself," Id at pg. 1178, the
respondent concludes that it is clear that the "safety"
aspects of the Act, as well as section lll's mandate to pay
compensation, are not at issue in this case because the order
clearly never required the miners to be withdrawn and the
alleged "safety" violation was remedied by shutting down the
power.
Respondent concludes that the UMWA's evidence simply
establishes that an order was issued, and, at some point, the
mine was idled. Given the fact that the UMWA has conceded
that if the mine were shut down on January 28, there would be
no case, and assuming the mine were idled on February 3 or 8,
or even the 9th, and no order had been issued, "then too there
would be no case," respondent suggests that it would appear
that the UMWA has conceded the central issue in this case,
i.e., the mine without the modification petition could not
operate profitably, and thus the order did not cause it to be
idled. Since the respondent is under no obligation to
continue to operate a mine which loses money, respondent
believes that the UMWA's assertion that everyone at the mine
should have been kept on, even though production was down some
75 percent, is contrary to the testimony of its witnesses and
contrary to accepted practices in not only the coal industry,
but in business in general, and must be rejected.
The respondent asserts that even if the implication that
the decision to idle the mine was made to spur MSHA to act on
the petition, there still would be no right to compensation
because it may only be awarded when a miner is idled due to
the issuance of a withdrawal order. Absent a nexus between
the idlement and the order, there can be no compensation.
Even assuming arguendo that the mine was idled to Eorce MSHA
to act on the petition for modification, respondent concludes
that the order did not factor into the idlement decision.
Even though mine management 1nay have caused its economic
concerns to become a self-fulfilling prophesy, the order ~ould
not be a factor which caused the mine to close. Respondent
maintains that this case reflects a consistent approach on its
part to keep the mine open, and that it communicated to all
persons involveu the economic consequences which would follow
if the modification petition were not granted. When production declined, management kept its employees on, and even kept

545

them on after longwall production stopped even though it had
no obligation to do so. Respondent concludes that mine management alone idled the mine after it determined that the losses
were too great to continue to operate.
Findings and Conclusions
Section 111 of the Act is intended to provide limited
compensation to miners who lose pay because of a withdrawal
order. The first two sentences of section 111 state as
follows:
If a coal or other mine or area of such
mine is closed by an order issued under section
103, section 104, or section 107, all miners
working during the shift when such order was
issued who are idled by such order shall be
entitled, regardless of the result of any
review of such order, to full compensation by
the operator at their rates of pay for the
period they are idled, but for not more than
the balance of such shift. If such order is
not terminated prior to the next working shift,
all miners on that shift who are idled by such
order shall be entitled to full compensation by
the operator at their regular rates of pay for
the period they are idled, but for not more
than four hours of such shift.
The compensation claims filed in this proceeding arise
under the third sentence of section 111, which states as
follows:
[I]f a coal or other mine or area of such mine
is closed by an order issued under section 104
or section 107 of this title for a failure of
the operator to comply with any mandatory
health or safety standards, all miners who are
idled due to such order shall be fully compensated after all interested parties are given an
opportunity for a public hearing, which shall
be expedited in such cases, and after such
order is final, by the operator for lost time
at their regular rates of pay for such time as
the miners are idled by such closing, or for
one week, whichever is the lesser.
(Emphasis
added).
The fourth sentence of section 111, provides as follows:

546

[WJhenever an operator violates or fails or

i~fuses to comply with any order issued under

section 103, section 104, or section 107 of
this ~ct, all miners employed at the affected
mine who would have been withdrawn from, or
prevented from entering, such mine or area
thereof as a result of such order shall be
entitled to full compensation by the operator
at their regular rates of pay, in addition to
pay received for work performed after such
order was issued, for the period beginning when
such order was issued and ending when such
order is complied with, vacated, or terminated.
The evidence in this case establishes that the first section 104(d)(2) Order No. 2943582, was issued by Inspector
Kalich at 6:25 p.m., on February 8, 1988, and the "area"
affected by this order was the "14th Right 3 South Longwall
Power Center." The order cited an alleged violation of mandatory safety standard 30 C.F.R. § 75.1002, and on its face
stated that it was issued because of the respondent's failure
to comply with one of the conditions stated in its then pending petition for modification, namely, item No. 7, which
required overtemperature protection for a high-voltage neutral
grounding resistor used in connection with a high-voltage
circuit supplying the longwall power center. The cited condition was abated by the installation of the overtemperature
device in question, and the order was terminated at 7:30 p.m.,
the same day it was issued. The order was subsequently
vacated by Mr. Kalich on February 10, 1988, after his supervisor informed him that he could not support a violation based
on the respondent's alleged failure to comply with one of the
conditions associated with its then pending petition to modify
the requirements of section 75.1002. Mr. Kalich confirmed
this fact, and he also confirmed that he could not support a
violation of section 75.1002, independent of the modification
petition, and that t~e cited condition was not in violation of
that standard.
With regard to the second section 104(d)(2) Order
2943583, issued by Inspector Kalich, the evidence establishes that it was issued at 6:30 p.m. on February 8, 1988,
5 minutes after the first one, and the "area" affected by this
order ~as "the 2400 volt power circuits of the 14 Rt. 3 South
Longwall." 1nspector Kalich again cited an alleged violation
of section 75.1002, and he confir~ed that he issued the violation because he found some energized 2400 high voltage cables
located inby the last open crosscut and within 150 feet of the
~o.

547

pillar workings. Although the order issued by Mr. Kalich
makes reference to the outstanding modification petition, and
Mr. Kalich later incorporated the language of the first order
as part of the second one when he subsequently modified it on
February 10, he confirmed that.he based his second order on an
alleged violation of section 75.1002, which prohibits locating
high voltage cables inby the last open crosscut and less than
150 feet from pillar workings, cather than on the pending
modification petition. The second order was subsequently
terminated at 3:05 p.m., February 10, 1988, by another inspector who was regularly assigned to the mine. The justification
for terminating the order simply states that "the petition for
modification of the application of 30 C.F.R. § 75.1002 is
granted, for the 14 aight through 17 Right, 3 South Longwall
Panels only."
Inspector Kalich confirmed that the effect of both orders
was to de-energize the power from the longwall power center,
and with the power down, no coal could be mined on the longwall. He also confirmed that the miners could continue to
work on "setup work," but he did not remain at the mine and
simply "heard that men were laid off." Mr. Kalich conceded
that he did not order any area of the mine closed, and that he
never required the withdrawal of any miners. Mine Superintendent Toth confirmed that he was never advised that Mr. Kalich
had closed the mine or ordered the withdrawal of any miners.
The parties stipulated that the two orders restricted the
respondent from operating the 14 Right 3 South Longwall panel,
but that the rest of the mine continued to operate for
2-1/2 shifts and all of the affected miners were kept working
without interruption performing longwall maintenance work and
working on the other continuous mining sections after the
orders were issued, until the mine was idled by Mr. Toth at
8:00 p.m., on February 9, 1988. The mine remained idle until
midnight February 10, 1988, when the miners returned to work
for the shift beginning at 12:00 a.m., February 11, 1988. The
claimed compensation is for the 3-1/2 shifts which were idled
by Mr. Toth.
The Finality Issue
Unlike the first two sentences of section 111 of the Act,
which entitles idled miners to compensation for lost wages
resulting from an order regardless of any review of the idling
order, the third sentence of section 111 contains two conditions which must be met before compensation attaches. The
Eicst condition requires a showing that the order was issued
because of the mine operator's failure to comply with a mandatory health or safety standard, and the second condition

548

limits the availability of any compensation to an order which
has become final after an "opport•.rnity for a public heacing."
The parties have stipulated that the respondent did not
avail itself of its right pursuant to section 105(d) of the
Act to contest the orders issued by Inspector Kalich.
Addressing itself to the second order issued by Mr. Kalich
(No. 2943583), the UMWA maintains that since the respondent
did not contest the order within 30 days of its issuance, it
has waived its right to further challenge it, and the order
has become final.
Since it is final, the UMWA concludes that
jurisdiction attaches, compensation is due, and that the next
critical issue to be resolved is whether or not a nexus
existed between the order and the miners who were idled.
(I
take note of the fact that the UMWA's posthearing arguments
are limited only to the second order issued by Mr. Kalich).
The respondent's posthearing arguments are also limited
to the second order issued by Inspector Kalich. Conceding
that it did not contest this order within the required
30 days, respondent maintains that since it had not exhausted
its right to a review of the order in a civil penalty
proceeding pursuant to the Commission's Quinland Coals, Inc.,
decision, the order is not final and jurisdiction to consider
the compensation claims is lacking. Altern~tively, given the
fact fhat its petition for modification of the cited section
75.1002 has now been granted, and the fact that MSHA will not
initiate a civil penalty proceedin3, respondent suggests that
the order has been de facto vacated, and that the Commission
may proceed to decide this matter.
The section 104{d){2) unwarrantable failure orders issued
by the inspector in this case alleged violations of mandatory
safety standard 30 C.F.R. § 75.1002. Pursuant to the third
sentence of section 111, miners idled as a result of an order
issued for the unwarrantable failure of an operator to comply
with any mandatory health or safety standacd are entitled to
compensation for such time as they are idled, or for 1 week,
whichever is the lesser, and jurisdiction to hear and decide
such claims attaches after the order has become final.
Commission review o.f such an order is governed by the
procedures found in section 105 of the Act, and the Commission
~ules, and not by section 111.
Section 105 of the Act provides an operator with two
opportunities to contest an order issued pursuant to section
104, and to request a hearing concerning any alleged violation
which pro;npted the issuance of the order. S11bsection ( d) of
section 105 affords an operator with an opportuni~y to

549

immediately contest an order within 30 days of its receipt.
Subsection (a) of section 105 allows the operator to initiate
a contest with respect to any civil penalty proposal filed by
MSHA for the alleged violation stated in the order, and this
may be done within 30 days of MSHA's notification of the
proposed civil penalty assessment.
In the Quinland Coals,
Inc. case, supra, 9 FMSHRC at 1621-22, the Commission held
that an operator may challenge the fact of violation and any
special findings made in a section 104 order regardless of
whether it availed itself of the opportunity to contest the
order in which the allegation of violation is contained. See
also: Local Union 2333, District 29, UMWA v. Ranger Fuel
CQrPoration, 10 FMSHRC 612, 618 (May 1988).
The Ranger Fuel case involved a compensation claim filed
by the union pursuant to the third sentence of section 111 of
the Act. The Commission held that in a compensation proceeding, an opecator may not challenge the validity of a violation
after it has paid the civil penalty assessmeht because it
would improperly place the miners and their representatives in
a prosecutorial role to prove the violation, and would require
them to perform functions properly resting within MSHA's
domain, 10 FMSHRC, at pg. 619. The Commission went on to
state that the issue of causal nexus in a compensation case is
independent of the allegation of a violation and must be determined separately in order to determine entitlement to compensation under the third sentence of section 111. It concluded
that an operator may litigate in a compensation proceeding the
issue of the causal relationship between the order and the
idlement of miners, but not the fact of violation.
The parties have stipulated that the respondent did not
contest the orders pursuant to the available review procedures
found in section 105(d) of the Act, and the Commission's Rules.
Insofar as its available rights under section 105(d) are concerned, I agree with the UMWA's assertion that the respondent
has waived its rights under this section, and to this extent,
the orders are final. With regard to the respondent's contest
rights in a civil penalty proceeding pursu~nt to se~tion
105(a) of the Act, I recognize the fact that it has not yet
had an opportunity to avail itself of an opportunity to
challenge the orders in any civil penalty proceeding pur~uant
to the Co@nission's decision in Quinland Coals, supra. However, on the facts of this case, it ~oes not appear that the
respondent will ever have an opportunity to challenge the
ordecs in any civil penalty proceeding because no such proceeding will be initi:i.ted by MSHA. The UM.WA's counsel confirmed
that she ~as informed by MSHA's district office that MSHA does
not intend to file any civil penalty proposal with respect to

550

Order No. 2943583, because of the fact that the modification
petition which was pending at the time the order was issued
was subsequently granted (Tr. 101). Since MSHA was not a
party to this proceeding, no further information or explanation was forthcoming with respect to MSHA's apparent
reluctance or refusal to initiate a civil penalty proceeding
with respect to the order and the alleged violation.
With regard to the first order (No. 2943582), the record
reflects that it was terminated within an hour of its issuance,
and subsequently vacated. The inspector candidly conceded that
the conditions cited in the order, including an alleged violation of mandatory standard 30 C.F.R. § 75.1002, could not be
supported, and that no violation existed, notwithstanding the
respondent's immediate abatement of the cited condition. Since
the order was obviously invalid, and no violation ever existed,
one can reasonably conclude that no civil penalty assessment
will be forthcoming, and the respondent would have no reason to
challenge it further.
Further, given the fact that the mine
continued to operate for 2-1/2 shifts after the order was
issued, and since the order was irrunediately terminated, it did
not exist and was no longer in effect at the time the miners
were idled.
With respect to the s~cond order (No. 2943583), the
inspector confirmed that he~ssued it because he believed that
the cited conditions constitttt~d a violation of mandatory standard ~O .c.F.R. § 75.1002, inde~endent of any reference to the
pending modification petition. Although the record reflects
that the order was subsequently terminated on February 10,
1988, upon approval of the modification petition, it was still
outstanding and in effect when the miners were idled, and
there is no evidence that MSHA has ever vacated it. The
respondent's suggestion that the approval of the modification
petition has resulted in a de facto vacation of the order is
rejected.
If the responden"t:believed that this was the case,
it was incumbent on the respondent to present credible and
probative evidence or facts to support such a conclusion, and
none were forthcoming during the course of the hearing.
I
find nothing in the record to support any conclusion that MSHA
aver vacated the order or made any finding that no violation
ever existed.
Although an MSHA inspector terminated the
order, and "justified" it by a reference to the fact that the
modification petition had been granted, he was not the same
inspector who issued the order and violation, and the issuin~
inspector's credible testimony that a violation had occurred
and that he cited a violation of section 75.1002 independently
of the modification petition stands unrebutted.
I take note
oE the respondent's further suggestion that n.ssuming the oi:-der

551

were de facto vacated, the Commission could proceed to adjudicate the compensation claim.
The respondent's reliance on the Quinland Coals decision
as the basis for its argument that the Commission lacks jurisdiction to decide the compensation claim because it has not
been afforded its full rights to contest the order in any civil
penalty proceeding IS REJ.ECTED.
In my view, the Quinland Coals
decision simply expanded the appeal rights afforded a mine
operator to challenge the validity of special findings made by
an inspector in a contested order. The Commission rejected a
iestrictive interpretation of the review provisions of section
105 of the Act, and concluded that since a special finding was
a critical consideration in evaluating the nature of ari alleged
violation and its impact upon the appropriate civil penalty to
be assessed, an operator should have an opportunity to seek
review of an order in any subsequent civil penalty proceeding
pursuant to section 105(a) of the Act, notwithstanding the fact
that it failed to seek review pursuant to section 105(d). The
focus of the Commission's decision in Quinland Coals was on the
interrelationship between a contest proceeding and a civil
penalty proceeding, and not on section 111 of the Act.

On the facts.of this case, I believe it would be unjust
to deny the miners an opportunity to have their cqmpensation
claims adjudicated because of MSHA's reluctance to initiate a
civil penalty proceeding which may afford the respondent a
forum to litigate the validity of.the order or the fact of
violation. The respondent's liability for the compensation
claims are to be adjudicated pursuant to the remedial purposes
of section 111, and not the punitive enforcement statutory and
regulatory schemes connected with the issuance of citations,
orders, and civil penalty assessments. Further, the fact that
a withdrawal order is subsequently vacated does not deprive
miners of their right to compensation, CF&I Steel Corp. v.
Morton, 516 F.2d 868 (10th Cir. 1975).
Section 111 is remedial in nature and was not intended by
Congress to be interpreted and applied narrowly. Local
Union 1889, District 17, UMWA v. Westmoreland Coal Company,
8 FMSHRC.1317 (September 1986). In a l'."ecently decided compensation case before the United States Court of Appeals for the
District of Colu~bia Circuit, International Union, UMW~ v.
FMSHRC, 840 F.2d 77, 82 (D.C. Ci!'.". 1988), the court observed
that the legislative history of section 111 makes it clear
that its purpose was to make .miners whole for wages lost due
to a closure order or for wages lost through no fault of their
own. ~he court pointed out that section 111 was not intended
to be a part of the Act's civil penalty assessment scheme, and

552

that the statutory language accords the Secretary CMSHA) no
role in determining section 111 liability. The court further
concluded that section 111 is self-executing, and that once a
section 104Cd)(2) order based on a violation of a mandatory
health or safety standard is issued and causes the miners to
be idled, the miners have a right to seek compensation, and
that such a right may be vindicated through recourse to the
Commission.
In this case, the issuance of the unwarrantable failure
orders came about through no fault of the miners.
Both orders
were issued because of the conduct of the respondent in
energizing the longwall section and exposing the area to
certain conditions which the inspector believed were in violation of mandatory section 75.1200 and/or contrary to the modification petition which had not been granted at the time of
the inspection which prompted the action taken by th2 inspector. Further, MSHA's inaction in failing to initiate a civil
penalty proceeding likewise came about through no fault of the
miners.
On the facts of this case, and in light of the foregoing
findings and conclusions, I conclude and find that for
purposes of the instant section 111 proceeding, the orders in
question have become final, and that I have jurisdiction to
adjudicate the compensation claims.
The Nexus Issue
The prerequisites for entitlement to compensation for
section 104 orders which result in the idling of miners are
found in section 111 of the Act, and the conditions precedent
for the awarding of compensation is that the mine is idled by
the issuance of an order which cites a violation. In short,
section 111 of the Act creates a graduated scheme of compensation ranging from the limited shift compensation described in
the fi.cst two sentences, to the more generous 1-week compensation provided by the third sentence, all of which are dependent on the mine operator's conduct relating to the conditions
in the mine. Shift compensation is awardable for an idlement
attributable to an order issued under section 104 of the Act,
and up to 1-weeks's compensation is available if the idlement
is attributable to a section 104Cd)(2) order issued for an
unwarrantable failure by the operator to comply with a cited
mandatory standard, Westmoreland Coal Company, supra, 9 FMSHRC
1325.

In order to establish its claim to compensation, the U.MWA
must establish that a nexus e~isted between the orders and the

553

idling of the miners. As stated by the Commission in Local
Union No. 781, District 17, UMWA v. Eastern Associated Coal
~., 3 FMSHRC 1175, 1178:
[S]ection 111 compensation is awardable only if
there is a nexus between a designated withdrawal order and the miners' idlement and loss
of pay, or between the underlying reasons for
the idlement and pay loss and the reasons for
the order. Mere occurrence alone of withdrawal
or idlement and issuance of an order does not,
by itself, justify compensation • • • • Where
an order precedes and plainly causes a withdrawal leading to loss of pay, compensation
9rdinarily will be awarded; conversely, • • •
where the order has nothing to do with the withdrawal • • • compensation will not be awarded.
However, withdrawal situations can arise
involving more complicated sequences of events
or concurrent operation of causative factors.
In resolving the latter class of cases, we
think it wiser to develop the nexus rule on a
case-by-case basis.
In such cases, we will
examine the relationship between the underlying
reasons for the withdrawal and for the order,
and will give balanced consideration both to
the limited and purely compensatory character
of section 111 and to the overall safety
purposes of the 1977 Mine Act and section 111
itself.
(Emphasis added).
It is well-settled that the voluntary closure of a mine
by an operator, and the withdrawal of miners prior to the
issuance of an order does not preclude the miners from
receiving compensation based on the order.
UMWA, District 31
v. Clinchfield Coal Company, 1 MSHC 1010 (1971); Mine Workers,
Local 2244 v. Consolidation Coal Company, 1 MSHC 1674 (1978);
Mine workers, Local 1993 v. Consolidation Coal Company, 1 MS~C
1668. (1978).
In the Clinchf ield Coal Company case, supra, in rejecting
the operator's contention that its voluntary closure of the
mine prior to the issuance of the closure order preempted the
order, the Eormer Interior Board of Mine Operations Appeals
noted that a withdrawal order is more extensive in scope than
a voluntary ~ithdrawal of miners by the operator, in that it
prohibits reentry until the Secretary determines that the
danger no longer eKists, and the illine or particular section
thereof is ofEicially closed upon the issuance oE an order,

554

and the effected miners are officially idled by such an order.
See also: Mine Workers, Local 1993 v. Consolidation Coal
supra, where Judge Broderick followed the Clinchfield
Coal Company decision in concluding that the mine operator's
voluntary closure of the mine in advance of the issuance of
the order was strongly motivated by the increasing probability
that a closure order would be issued. The instant case presents a unique situation in that the orders issued by the
inspector did not directly order any withdrawal of miners or
the closing of the mine, and the miners continued to work for
2-1/2 shifts after the orders were issued until the mine
superintendent subsequently closed the mine.

company;

Order No. 2943582
Inspector Kalich issued Order No. 2943582, at 6:25 p.m.,
on February 8, and terminated it at 7:35 p.m. that same day
after the respondent installed a ground check circuit overtemperature device. The inspector subsequently vacated the order
on February 10, on the instructions of his supervisor who
advised him that he could not support a violation based on a
pending modification petition. During the course of the hearing, the UMWA' s represent.:itive asserted that the inspector
"messed up" when he issued the order (Tr. 102).
While it is true that a subsequently vacated order may
not deny miners their right to claim compensation, in this
instance the mine continued to operate for two and one-half
shifts after the order was terminated, all of the miners continued to work, and no one was ordered to be withdrawn or
idled. Further, the inspector conceded that the cited condition did not constitute a violation of the cited mandatory
safety standard, section 75.1002, and any possible hazard to
which the miners assigned to the longwall panel may have been
exposed was effectively eliminated when the respondent took
immediate action to install the overtemperature device as
required by the inspector.
In addition, at the time of the
subsequent idlement of the entire mine by the mine superintendent on February 9, the order was no longer in effect or in
existence.
Under all of these circumstances, I cannot conclude that any nexus has been established between Order
No. 2943582, and the .idlement of the miners on February 9,
1988.
Order No. 2943583
Section 111 of the Act provides for compensation for
miners when a mine or mine area is closed by a section 104

555

order. The evidence in this case establishes that the inspector did not order the closure of the entire mine or the longwall area of the mine, nor did he order the withdrawal of any
miners. The parties have stipulated that the mine continued
to operate for 2-1/2 shifts after the order was issued until
it was idled by superintendent Toth on February 9. Superintendent Toth's unrebutted and credible testimony establishes that
notwithstanding the unavailability of power on the longwall
panel, all miners assigned to the longwall were kept working,
and the UMWA agreed that all mine shifts continued to work
without interruption for 2-1/2 shifts after the order issued,
and that the miners assigned to the longwall continued doing
"dead work" (Tr. 92).
During the course of oral argQment on the record, the
UMWA's representative asserted that as a result of Insoector
Kalich's order, some miners were idled from work (Tr. 33).
Wh.en asked to identify these miners, she confirmed that they
were the miners listed on "Exhibit F" to the prehearing Joint
Stipulation of facts which were filed and received on
October 11, 1988, "which we've all agreed to" (Tr. 34). The
list contains the names of 432 individuals assigned to work in
the plant and the mine from February 9, through February 10,
1988. Eleven Cll) of those listed were assigned to the
longwall on February 9, 1988 (Tr. 88). Having reviewed the
stipulation, and contrary to any inference by the UMW~'s reprasentative that the parties stipulated that the miners listed
were idled by the order, my conclusion is that the parties
stipulated that these miners were idled from 8:00 p.m., on
February 9, 1988 to midnight February 10, 1988, as a result of
Mr. Toth's decision to idle the mine, rather than the order
issued by the inspector.
Superintendent Toth testified that the mine is equipped
to operate one longwall installation, and four belt and continllous miner sections, and that in order to maintain its profitability, 12,000 to 14,000 tons of coal a day must be produced
CTr. 49).
He confir~ed that by January 28, 1988, one longwall
panel had been completed and ready for production, but that no
coal could be produced because the pending modification petition had not as yet been approved. However, work continued,
and extra manpower was used to extend the panel an additional
300 feet in anticipation of the approval of the petition (Tr.
51). He confirmed that during this time, production levels
were at "50 percent efficiency," and that on February 3, in
view of safety considerations, further coal production ceased
on the longwall, and from February 3 to February 9, when he
idled the mine, there was no further longwall production (Tr.
52). Referring to his longwall coal production records,

556

Mr. Toth confirmed that from January 29 to February 3, coal
production was reduced by 70,000 tons a day, and that from
February 3, until February 9, production was reduced by 40,000
tons a day (Tr. 55). He also confirmed that the four continuous miner sections accounted for 25 percent of total coal
production (Tr. 86).
Mr. Toth.confirmed that from February 3, until the afternoon shift of February 9, no miners were idled, and "preparation and setup" work continued on the longwall, as well as in
all of the other available developments (Tr. 56). He confirmed
that those longwall miners who were subsequently idled by his
decision to idle the mine were involved in the "set-up and
adjustment work" which was going on (Tr. 80). Mr. Toth
explained that the high voltage power was on the longwall panel
in question on February 8, in order to make necessary adjustments to the power cables and "trim passes" in anticipation of
starting up the longwall once the petition was granted, but
that he had no intention of starting any coal production on the
panel without the petition being granted (Tr. 57-58; 62).
Mr. Toth also confirmed that the power was also on the longwall
panel on February 4 and 5, even though the modification petition was still pending, and he explained that it was on while
MSHA inspectors were present evaluating the modification
petition (Tr. 65-66).
The petition of modification in question was filed to
permit the respondent to use high voltage power on the longwall
panel. When the order was issued, the petition had not been
granted, and the use of high voltage power was not permitted.
Inspector Kalich testified that while this was true, he issued
the order because he believed the use of high voltage cables on
the longwall ~as a violation of mandatory safety standard
section 75.1002, independent of the then pending petition. The
merits of the alleged violation were not litigated in this
compensation proceeding, and the parties differ as to whether
or not the cited conditions constituted a violation of section
75.1002 (Tr. 103, 106-107). ·rhe UMWA takes the position that
the failure by the respondent to timely contest the alleged
violation constitutes a tacit admission of a violation. This
contention is ~ejected.
I find no basis for such a conclusion,
and given the Co~nission's decision in the Quinland Coals,
Inc., case, supra, I believe that the resoondent's belief that
it could still litigate the merits of the~alleged violation in
any subsequently filed civil penalty proceeding, notwithstanding its failure to ti~ely contest the violation, is reasonable
and plausible.

557

Aside from the merits of the alleged violation, and from
a safety point of view, the decision by the respondent to
introduce high voltage on the longwall without approval by
MSHA, exposed the miners assigned to the longwall to a potential hazard. Indeed, the inspector who issued the order
believed that the use of high voltage cables on the longwall
was contrary to mandatory safety standard 75.1200, and ·he concluded that the alleged violation was "significant and substantial" and presented a reasonable likelihood of an injury.
The parties do not dispute the fact that while the order
did not directly require the withdrawal of any miners or the
closure of the longwall area of the mine, it did result in the
shat down of the 2400 volt power circuits supplying power to
the longwall area. In the absence of available power, normal
longwall production could not continue, and miners normally
assigned to their normal longwall production duties could not
continue performing those duties and were assigned "dead work."
Any attempt by the respondent to continue full production on
the longwall with use of high voltage power in defiance of the
order would have placed the respondent at risk to pay the
increased compensation to the affected miners working in the
longwall area as provided for in the fourth sentence of
Section 111. Thus, the net effect of the order was to curtail
further coal production in the longwall area.
Under all of
these circumstances, including the fact that the ocder was
still in effect and had not been terminated or vacated at the
time superintendent Toth decided to idle the entire mine on
February 9, I conclude and find that a causal relationship did
exist between the order and the idling of the longwall area,
and that the proximate and priinary cause of the idling of that
area was the order issued by the inspector.
I conclude and find that the evidence in this case establishes a reasonable nexus between the order and the idling of
the longwall area, notwithstanding the respondent's "economic
considerations" arguments to the contrary. Accordingly, I
further conclude and find that the miners normally assigned
full production work duties on the 14 ~ight 3 South Longwall
Section, and who would have continued performing these duties
but for the issuance of the order in question, are entitled to
be compensated for the time the longwall area was idle from
8:00 p.m. on February 9, to midnight February 10, 1988.
With regard to the mine areas other than the longwall,
while it ia true that the order affecting the longwall was
still outstanding and in ef Eect when superintendent ~oth

558

decided to idle the entire mine on February 9, the facts establish, and the UMWA concedes, that the continuous mining sections continued to operate for 2-1/2 shifts after the order
was issued. Miners continued to work in these areas, and coal
production continued, albeit at reduced efficiency, but still
unaffected by the order. Unlike the longwall area, where coal
production was substantially reduced because of the unavailability of high voltage power which came about as a result of
the order, the continuing mining sections continued to operate
for 2-1/2 shifts, and no miners were idled.
With regard to any safety connection between the order
and the remaining mine areas other than the longwall, the evidence establishes that any potential hazards to miners through
exposure to the cited high voltage cables was limited to the
longwall area, and I find no evidence to support any conclusion
that any of the miners who continued to work in these other
mine areas were at risk or exposed to any potential hazard
because of the alleged violation which prompted the inspector
to issue the order on the longwall.
Although I have concluded that the order issued on the
longwall was safety related, and that a reasonable nexus has
been established between the order and the idling of the
longwall area of the mine, I cannot reach the same conclusion
with respect to the remaining mine areas which were unaffected
by the order. On the facts of this case, I conclude that the
respondent has made a credible, plausible, and reasonable
showing with respect to the adverse economic impact on the
mine which resulted from its failure to gain timely approval
of its modification petition.
The evidence in this case establishes that the adverse
economic impact on the continued viable operation of the mine
as a result of the respondent's failure to obtain timely
approval of its longwall modification petition was clearly
communic3.ted to the union well in advance of the issuance of
the order, and it came to fruition at a time when the respondent was attempting to continue mining by extending the
longwall in anticipatidn of MSHA's approval of the petition,
which the respondent believed was imminent, and at a time when
there was little or no ongoing production on the longwall,
even before the order was issued.
While it is true that the respondent precipitated the
issuance of the order by advancing high voltage cables into
the longwall ~rea, given the remedial nature of section 111 of
the ~ct, and the fact that no miners working in areas other
than the longwall were exposed to ~ny hazard as a result of

559

the alleged violation, and notwithstanding the fact that the
order was still in effect at the time Mr. Toth decided to idle
the entire mine on February 9, I conclude and find that the
order was incidental to, and not the immediate cause of the
idling of the rest of the mine-by Mr. Toth. To the contrary,
I conclude and find that Mr. Toth's decision to idle the mine
was primarily the result of his managerial decision that he
could not continue to economically operate the mine, and his
obvious frustration and aggravation over the failure to gain
timely approval of the then pending modification petition.
The respondent's credible evidence clearly supports its
contention that for a period of approximately !-month prior to
the issuance of the order on February 8, and Mr. Toth's decision of February 9, to idle the entire mine, representatives
of the UMWA were on notice by the respondent that drastic
workforce reductions were inevitable in the event the pending
modification petition was not timely approved by MSHA. Respondent's credible evidence also establishes that at the time the
longwall panel in question was mined out approximately 2 weeks
before the order was issued, coal production on the longwall
showed a marked decrease. The reasons for this was the fact
that all of the longwall coal had been mined up that point,
and the respondent had not as yet had approval f rorn MSHA to
iritroduce high voltage on the panel which would have allowed
it to continue mining at a high production capacity. Notwithstanding these factors, the respondent decided to extend the
panel an additional 300 feet in anticipation of the approval
of its petition, and miners were kept working at reduced productivity levels until superintendent Toth decided that he
could no longer justify operating the mine with a full employment complement in the face of decreased production and the
lack of high voltage capability on the longwall.
Under all of the aforementioned circumstances, I cannot
conclude that a reasonable nexus existed between the issuance
of the order and Mr. Toth's decision to idle the entire mine.
~ccordingly, I further conclude and find that those miners
assigned to and working in mine areas other than the longwall
area are not entitled to any compensation as a cesult of
Mr. Toth's idlement of the mine.
ORDER

In view of the forgoing findings and concl'J.sions, IT IS

ORDE:RED ·raA.·r:

1. The affected miners assigned to the 14 Right 3 South
Longwall Section of tha mine as of February 9, 1988, as shown

560

in Exhibit· "F" to the Joint Stipulation of Facts filed by the
parties in this proceeding, are entitled to compensation at
their regular rates of pay for wages lost during the idletnent
0£ the mine, from 8:00 p.m. on February 9, 1988 .to midnight
February 10, 19 88, t;.,i th interest computed from February 9,
1988, until the date payment is made, and to this extent the
compensation claims filed in this proceeding ARE GRAN·rED.
All interest due with respect to the claims which have
been allowed shall be calculated in accordance with the
Commission's decision in Arkansas-Carbona, 5 FMSHRC 2042
(December 1983), as modified by Local Union 2274, District 28,
UMWA v. Clinchfieid Coal Company, 10 FMSHRC 1493 (November
1988). See: 54 Fed. Reg. 2226-2227, January 19, 1989.

2. All other miners working ih areas other than the.
14 Right 3 South r. . ongwall Section of the mine during the aforementioned idlement period of the mine are not entitled to compensation, and to this extent, the compensation claims filed
in this proceeding ARE DENIED.

3. Within twenty (20) days of the date of this decision,
and without prejudice to the right of the parties to seek
further review of this decision, the parties shall confer i~
an effort to stipulate to the amounts of compensation and
interest due the aforementioned longwall .miners, and within
ten (10) days thereafter, the parties shall file their joint
stipulation or agreement in this regard with me so that a
supplemental decision and final order may be entered.
4.

The UMWA's request for payment of attorney's fees IS
Section 111 of the Act does not provide for an award
of attorney's fees and costs in compensation proceedings. ·
See: Local Union 2274, District 28, United Mine Workers cf
America v. Clinchfield Coal Company, 10 FMSHRC 1493, 1499
(November 1988), and the cases cited therein~
D~NIBD.

5. This decision shall not be made final until the
parties have submitted their joint stipulation and agreement,
and a supplemental decision and final order is issued.

u //~

~A. Koutras

Administrative Law Judge

561

Distribution:
Joyce A. Hanula, Legal Assistant, United Mine Workers of
America, CUMWA), 900 15th Street, N.W., Washington, DC 20005
(Certified Mail)
Eugene P. Schmittgens, Jr., Esq., Eastern Associated Coal
Corporation, 301 N. Memorial Drive, Post Office Box 373,
St. Louis, Mo· 63166 (Certified Mail)
/fb

562

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

APR 7 1989
DONALD F. DENU,
Complainant

.

DISCRIMINATION PROCEEDING
Docket No. LAKE 88-123-D
VINC - CD 88-08

v.
AMAX COAL COMPANY
Respondent

:

Ayrshire Mine

ORDER
Appearances:

Before:

Donald F. Denu, Rockport, Indiana,
pro se1
D. c. Ewigleben, Esq., Amax Coal Company,
Indianapolis, Indiana for Respondent

Judge Melick

By Qecision dated March 3, 1989, the Discrimination
Complaint of Donald F. Denu was granted. The parties
subsequently reached agreement as to costs and damages at
$1,000. Accordingly Amax Coal Company is irected to pay to
Donald F. Denu the amount of $1,000 within 0 days of the
date of this order.

Distribution:
Donald F. Denu, R.R. #1, Box 333, Rockport, IN
(Certified Mail)

47635

D. C. Ewigleben, Esq., Amax Coal Company, P.O. Box 967,
Indianapolis, IN 46206-0967 (Certified Mail)
nt

563

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

APR 7 1989

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

CIVIL PENALTY PROCEEDING

.

Docket No. LAKE 88-79
A.C. No. 12-01986-03504
Hunley Creek

SUPER BLOCK COAL CORPORATION,
Respondent
DECISION
Appearances:

Miguel J. Carmona, Esq., Office of the
Solicitor, U.S. Department of Labor, Chicago,
Illinois, for the Petitioner.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820(a), seeking a civil penalty assessment in the amount of
$20 for an alleged violation of mandatory safety standard
30 C.F.R. § 77.1109(c)(l). The respondent filed a timely
answer and contest and a hearing was convened in Evansville,
Indiana. However, the respondent failed to appear, and the
hearing proceeded in his absence, and testimony and evidence
was submitted by the petitioner in support of the alleged violation. A show cause was subsequently served on the respondent affording it an opportunity to explain its failure to
appear at the hearing, but no response was received. Under
the circu.~stances, pursuant to Commission Rule 63, 29 C.F.R.
§ 2700.63, the respondent is deemed to be in default.
Issues
The issues presented in this case are Cl> whether the
condition or practice cited by the inspector constitutes a
violation of the cited mandatory safety standard, and (2) the
appropriate civil penalty to be assessed for the violation,

564

taking into account the statutory 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;
Pub. L. 95-164, 30 u.s.c. § 801 et seg.

u.s.c. § 820(i).

2.

Secti~n

3.

Commission Rules, 29 C.F.R. § 2700.l et seg.

llO(i) of the 1977 Act, 30

Discussion
Section 104(a) non-"S&S" Citation No. 3038275, issued on
January 19, 1988, cites a violation of mandatory safety standard 30 C.F.R. § 77.1109(c)(l), and the cited condition or
practice states as follows:
"A portable fire extinguisher was
not provided for the Ingersoll-Rand T-4 highwall drill. work
area I.D. No. 900-0."
MSHA Inspector Keith L. Stoner testified as to his background and experience, and he confirmed that he issued the
citation in question during the course of a regular inspection
which he conducted at the mine on January 19, 1988. He stated
that the coal stripping superintendent, Danny Jasper, was present at the mine and was aware of his inspection. Mr. Stoner
confirmed that he issued the citation after finding that a
rubber-tired drill truck was not equipped with a portable fire
extinguisher as required by the cited standard. He stated
that the drill apparatus is an integral part of the truck, and
he considered it to be a mobile piece of equipment within the
meaning of the standard.
Mr. Stoner confirmed that the truck was parked approximately 100 feet from the repair garage, but that it was not
tagged out. Other pieces of equipment parked near the garage
were equipped with fire extinguishers, and the cited drill was
the only piece of equipment which was not provided with one.
Except for the lack of a fire extinguisher, the drill truck
appeared to be in normal and good operating condition. The
truck was equipped with a bracket which normally is used to
hold an extinguisher in place. Mr. Stoner confirmed that he
spoke with Mr. Jasper about the matter, and Mr. Jasper
informed him that he did not believe that an extinguisher was
required because the drill truck was not in use when the
inspector observed it.
Mr. Stoner stated that the violation was not significant
and substantial, and he believed that an injury was unlikely

565

because the drill was not in use and no one was around it at
the area where it was parked. He made a negligence finding of
"moderate" because the other equipment was provided with fire
extinguishers, and abatement was achieved within 5 minutes
when a spare extinguisher located in the repair garage was
placed on the drill truck in the bracket which was provided
for this purpose.
Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 77.1109(c)(l), for failure to
provide a portal fire extinguisher for the highwall drill in
question.
Section 77.1109(c)(l) provides as follows:
"Mobile
equipment, including trucks, front-end loaders, bulldozers,
portable welding units, and augers, shall be equipped with at
least one portable fire extinguisher."
As noted earlier, the respondent failed to appear at the
hearing in this matter, and failed to respond to my show cause
order of March 14, 1989. The returned postal service certified mail receipts of record reflect that the respondent
received the initial hearing notice, the amended hearing
notice, and the show cause order. However, it has not further
responded or explained its absence and failure to respond.
Under all of these circumstances, I conclude and find that the
respondent is in default and has waived its right to be heard
further in this matter.
On the basis of the credible testimony of the inspector
who issued the citation, I further conclude and find that the
petitioner has established a violation of section
77.1109(c)(l), and the citation is therefore AFFIRMED.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
The respondent appears to be a small mine operator, and
absent any information to the contrary, I conclude and find
that the $20 civil penalty assessment for the violation in
question will not adversely affect its ability to continue in
business.
History of Prior Violations
A computer printout submitted by the petitioner reflects
that for for the period March 21, 1986 to March 20, 1988, the

566

respondent paid civil penalty assessments in the amount of
$960 for 17 section 104(a) citations, none of which include
prior violations of mandatory safety standard section
77.1109(c)(l). I cannot conclude that the respondent's compliance history is such as to warrant any additional increase
in the civil penalty assessment made for the violation which
has been affirmed in this case.
Good Faith Compliance
I conclude and find that the respondent immediately abated
the violation in good faith by providing a fire extinguisher
for the cited drill in question.

Negligence
The inspector's "moderate" negligence finding is affirmed.
Gravity
The inspector's credible testimony establishes that the
violation was not serious, and I adopt his finding as my finding and conclusion on this issue.
Civil Penalty Assessment
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llOCi) of
the Act, I conclude and find that the petitioner's proposed
civil penalty assessment in the amount of $20 for the violation in question is reasonable and appropriate, and IT IS
APPROVED.
ORDER
The respondent IS ORDERED to pay to the petitioner a
civil penalty assessment in the amount of $20 tor a violation
of mandatory safety standard 30 C.F.R. § 77.1109Cc>Cl), as
stated in section 104Ca) "non-S&S" Citation No. 3038275,
January 19, 1988. Payment is to be made to the petitioner
within thirty (30) days of the date of this decision and
order, and upon receipt of payment, this case is dismissed.

567

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S.
Department of Labor, 230 South Dearborn Street, 8th Floor,
Chicago, IL 60604 (Certified Mail)
Mr. Larry Wallace, President, Super Block Coal Corporation,
Post Office Box 234, Crestwood, KY 40014 (Certified Mail)

/f b

568

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

april 7, 1989

CIVIL PENALTY PROCEEDING

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

Docket No. YORK 89-8-M
A. C. No. 19-00970-05501
Chelmsford Mill

v.
POMERLEAU BROTHERS, INC.,
Respondent

DECISION
ORDER TO PAY
Appearances:

David L. Baskin, Esq., Office of the Solicitor,

u. s. Department of Labor, Boston, Massachusetts,
for Petitioner.

Before:

Judge Merlin

This case is a petition for the assessment of three civil
penalties filed by the Secretary of Labor against Pomerleau
Brothers, Inc. At the hearing, the Solicitor advised that the
parties had agreed upon settlement recommendations of all items
for the originally assessed amounts. The Solicitor placed the
recommendations on the record. The hearing in this matter took
place at the same time as another case which was heard on the
merits.
Citation Nos. 2853598 and 2853599 were issued for violations
of 30 C.F.R. § 56.9087 and § 56.9011, respectively. Upon a
review of the record, I am satisfied that the proposed single
penalty assessments which are the original amounts are
appropriate for these items.
Order No. 2853597 was issued for a violation of 30 C.F.R.
35 Euclid truck had not been equipped
with adequate brakes. The proposed settlement is for the $500
originally assessed penalty. MSHA found that the gravity of the
violation was serious, because it created the danger of a haulage
accident. The service brakes on the rear wheels did not function
and the hand brake could not hold the empty truck on the ramp at
the primary crusher. Under such circumstances the machine could
have run out of control.
In addition, the operator was negligent
since a routine examination of the machine would have revealed
this condition. The operator is small with no prior history.
However, in view of the substantial degree of gravity and the
§ 56.9003 because the No.

569

existence of negligence, I conclude $500 is an appropriate
penalty amount for this violation.
In light of the foregoing, the recommended settlements are
APPROVED and the operator is ORDERED TO PAY $540 within 30 days
from the date of this decision.

-

\~
\

•

Paul Merlin
Chief Administrative Law Judge

Distribution:
David L. Baskin, Esq., Office of the Solicitor, u. s. Department
of Labor, John F. Kennedy Federal Building, Government Center,
Room 1803, Boston, MA 02203 (Certified Mail)
Pomerleau Brothers, Inc., Box 236, North Chelmsford, MA
<Certified Mail)
/gl

570

01863

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

APR 111989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
STERLING ENERGY, INC.,
Respondent

CIVIL PENALTY PROCEEDINGS

.

Docket No. KENT 88-103
A.C. No. 15-14587-03536

.

Docket No. KENT 88-169
A.C. No. 15-14587-03540
Docket No. KENT 88-208
A.C. No. 15-14587-03544

.

Sterling No. 5 Mine

DECISION
Appearances:

Before:

Mary Sue Ray, Esq., and William F. Taylor, Esq.,
Office of the Solicitor, U.S. Department of
Labor, Nashville, Tennessee, for Petitioner1
Mr. Ralph Ball, President, Sterling Energy, Inc.
LaFollette, Tennessee, for the Respondent.

Judge Maurer

These cases are before me under section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., the "Act", to challenge two citations, one issued under
section 104Ca) of the ~ct, the other under section 104(d)(l) of
the Act, one imminent danger withdrawal order, seven section
104Cd)(l) orders and a single section 104Cd) (2) order. The
respondent also seeks review of the civil penalties proposed by
the Secretary of Labor for the related violations.
Pursuant to notice, the cases were heard in Knoxville,
Tennessee on February 21, 1989.
STIPULATIONS
The parties have agreed to the following stipulations, which
I accept:
1. Sterling Energy, Inc., owns and operates the No. 5 Mine,
which produces coal for resale in interstate commerce and is
subject to the jurisdiction of the Act.

571

2. The undersigned administrative law judge has
jurisdiction over this proceeding pursuant to Section 105 cf the
Act.
3. The subject. citations and orders were properly served on
the respondent by a duly authorized representative of the
Secretary.
4.
Copies of the subject citations and orders entered into
this record as petitioner's exhibits are authentic copies of the
originals~

I.

Docket No. KENT 88-103

Citation No. 3001604, issued on September 11, 1987, pursuant
to Section 104(a) of the Act, alleges a "significant and
substantial" violation of the standard at 30 C.F.R. § 75.200 and
charges as follows:
The roof on 002~0 pillaring section was loose and had
sJoughed out around the roof bolts as much as 12" from
the plates, where the employees had cleaned up and had
trammed the miner part of the way to start producing
coal.
The cited standard, 30 C.F.R. § 75.200, provides in
pertinent part as follows:
The roof and ribs of all active underground roadways,
travelways, and working places shall be supported or
otherwise controlled adequately to protect persons from
falls of the roof or ribs.
According to Inspector Osborne, an MSHA coal mine inspector,
the roof in the cited area was loose and 12-14 inches of material
had sloughed out around one full row of bolts on one side. At
the time he observed this condition, the operator was engaged in
moving equipment through this area and one man was observed
directly underneath where this roof had sloughed out. It was
stipulated that there were four people on the section, that there
was robbing work going on, taking the pillars out, and that the
operator was planning on using this as a haulage road.
The inspector assessed the gravity of the violation as
highly likely to produce or result in a lost work days or
restricted duty accident involving four persons because, in his
words, "it's a real tender top" and they were doing robbing work
at the time.

572

Mr. Ball, testifying on behalf of the respondent, agreed
that action should have been taken in this area, but that he
didn't see anything particularly serious about it. He believes
that if he would have put up three or four timbers, he could have
went ahead and used it as a roadway. His rationale for that
position is that they were using 60-inch resin bolts in this area
as opposed to 42~inch "traditional bolts".
The Secretary also presented the testimony of Mr. Roger
Dingess, a roof control and ventilation specialist, employed as
such by MSHA for the last seven years.
Mr. Dingess, after hearing the prior testimony of both
Inspector Osborne and Mr. Ball, testified that based on the
inspector's description of the affected area and the roof
conditions he found there, including the fact that 60-inch resin
bolts were used in this area, it was his opinion that the
occurrence of a roof fall was highly likely. He went on to state
that when you have sloughing out around the roof bolts,
continuing bolt after bolt in a line, it weakens the roof and
lets it swing on the remaining bolts on the other side. This
creates an i1n."'llinent danger, in his opinion, which when they are
taking the pillars out, as they were here, makes it highly likely
that a roof fall would occur.
To abate this condition, the area was re-supported with
timbers and dangered-off and a new roadway was established.
In view of the foregoing, I conclude and find that MSHA has
established a violation of section 75.200, by a preponderance of
the credible evidence adduced in this case, and also find that
the violation was of such a nature as could significantly and
substantially contribute to the cause of a coal mine safety
hazard.
I accept the testimony of Messrs. Osborne and Dingess
that there was a reasonable likelihood that the cited hazard
could have resulted in at least serious, if not fatal, injury to
a person or persons. I therefore conclude that the violation was
significant and substantial and serious. Mathies Coal Company, 6
FMSHRC 1 (1984). The citation, accordingly, will be affirmed.
Related Order of Withdrawal No. 3001603, issued pursuant to
section 107(a) of the Act reads as follows:
The roof on the 002-0 pillaring section was loose and
had sloughed out around the roof bolts as much as 12"
from the plates, where the employees had cleaned up and
had trammed the miner part of the way to start
producing coal.

573

Section 107(a) of the Act provides in part as follows:
If, upon any inspection or investigation of a coal or
other mine which is subject to this Act, an authorized
representative of the Secretary finds that an imminent·
danger exists, such representative shall determine the
extent of the area of such mine throughout which the
danger exists, and issue an order requiring the
operator of such mine to cause all persons except those
referred to in section 104Cc), to be withdrawn from,
and to be prohibited from entering, such area until an
authorized representative of the Secretary determines
that such imminent danger and the conditions or
practices which caused the imminent danger no longer
exist.
Section 3Cj) of the Act defines "imminent danger" as "the
existence of any condition or practice in a coal or other
mine which could reasonably be expected to cause death or
serious physical harm before such condition or practice can
be abated."
The limited issue herein is whether such a condition or
practice existed at the time this order was issued. According to
Inspector Osborne, the imminent danger order was issued because
of a "condition" in which he observed a miner proceed beneath an
area of dangerous roof. Inspector Osborne maintained that this
"condition" constituted an "imminent danger" because the
inadequately supported roof might fall and kill or seriously
injure the miner. I find that the hazard was such that the cited
condition "could reasonably be expected to cause seriou~ physical
injury". Accordingly, I find that there was an imminent danger
and will affirm Order No. 3001603.
II.

Docket No. KENT 88-169

Citation No. 3166112, issued on April 5, 1988, pursuant to
section 104(d)(l) of the Act, alleges a "significant and
substantial" violation of the mandatory standard found at
30 C.F.R. § 75.303 and charges as follows:
An adequate preshift examination was not being made for
the above mentioned mine. The seals located on the
first right panel off the main intake cannot be
examined because of loose roof and water. This
condition has been recorded in the preshi£t record
book and in the mine foreman's report of hazardous
conditions, February 2, 1988.

574

The cited standard, 30 C.F.R. § 75.303, requires that
operators examine seals and doors to determine whether they are
functioning properly prior to each shift.
Roger Dingess issued this citation because the seals on the
first right panel on the intake side had not been inspected by
the operator during pre-shift examinations of this area between
February 2, 1988, and the date the citation was issued, April 5,
1988. This is a period in excess of two months that these seals
were not inspected allegedly due to a build-up of water and poor
roof conditions extant in that area. Mr. Dingess is of the
opinion that the loose roof could have been scaled down and the
water could have been pumped out, which would have allowed them
to examine those seals.
A request to relocate these seals was made to MSHA by the
operator on February 24, 1988. But because the mine's
ventilation plan expired on March 1, 1988, this request was not
approved until March 28, 1988. I note here that as of
April 5, 1988, when the citation was issued there was no
indication that the operator was moving the seals or even
preparing to move the seals. Nor was the operator examining the
existent seals. Apparently, the material necessary to construct
the new seals was present on the surf ace, but the respondent had
made no effort to begin construction prior to the issuance of the
citation.
The required preshift examinations of these seals were
particularly important in order to detect any weakness or
deterioration which might allow the seals to crush out and
possibly expose the miners to black damp, which is a lack of
oxygen in the air, and which very likely could have been built-up
behind the old permanent ventilation seals. Furthermore, the
poor roof conditions could significantly enhance the possibility
of the seals crushing out in the first instance.
Mr. Dingess opined that it was "highly likely" that a fata1
accident could occur involving fourteen (14) miners because of
the poor roof conditions which existed in the area and the length
of time for which the seals had not been examined. He also
testified that in his experience there was black damp behind
every seal that he has ever seen, if it had been there for
awhile.
In my opinion, the record in this case concerning this
citation will not support a gravity finding of "highly likely"
because there is no evidence of what the actual physical
condition of the seals was on the date the citation was issued.

575

The more appropriate finding, which I believe the record will
support, is "reasonably likely".
A violation is properly designated as being of a significant
and substantial nature 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 Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies
Coal co., 6 FMSHRC 1, 3-4 (January 1984), the Commission
explained:
In order to establish that a violation of a mandatory
standard is significant and substantial under National
Gypsum the Secretary must prove:
(1) the underlying
violation of a mandatory safety standard; (2) a discrete
safety hazard -- that is, a measure of danger to safety -contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.
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," and that the likelihood of injury must be evaluated in
terms of continued normal mining operations. U.S. Steel Mining
Co., 6 FMSHRC 1573-74 (July 1984); see also, Halfway, Inc.,
8 FMSHRC 8, 12 (January 1986).
I find the violation is proven as charged. When Mr. Dingess
discussed this situation with Harley Wilder, the Mine
Superintendent, Mr. Wilder admitted that they had not been
inspecting the seals. Mr. Ball also admitted at the hearing that
the mine supervision got a little relaxed on the seals once they
put in for the relocation. They let the water build-up in that
area aftec that.
The second, third and fourth prongs of the test are
adequately met by the unrebutted and really unopposed testimony
of Mr. Dingess to the effect that the operator's failure to
inspect these seals for two months left the miners in the
unenviable position of not knowing the condition of the subject
ventilation seals. Given the poor roof conditions in that area
as well, it was reasonably likely that one or more of these seals
could fail in that amount of time and release black damp which
certainly could lead to serious or even fatal injuries.
Accordingly, I also find that the violation was "significant and
substantial" and serious.

576

I further find that the violation was the result of
inexcusable aggravated conduct, constituting more than ordinary
negligence, on the part of the operator's superintendent, Harley
Wilder, which conduct is clearly imputable to the operator. The
violation was therefore cau~ed by the operator's unwarrantable
failure to comply with the cited mandatory standard. Emery
Mining Corp., 9 FMSHRC 1997, 2002 (December 1987>; Youghiogheny &
Ohio Coal Co., 9.FMSHRC 2007, 2010 (December 1987).
Based on the foregoing, the high degree of negligence
exhibited, if not reckless disregard for the consequences, and
the seriousness of the violation, section 104(d)(l) Citation No.
3166112 was properly issued and will be affirmed herein.
III.

Docket No. KENT 88-208

There are seven section 104Cd)(l) Orders and a single
section 104(d)(2) Order included in this docket. Mr. Ball, on
behalf of the respondent, admits all eight of the violations that
are cited in this docket, has no particular objection to those
being found to be "significant and substantial" but strenuously
denies the unwarrantable nature of these eight orders.
Order No. 3175428
Order No. 3175428, issued pursuant to section 104Cd>Cl) of
the Act, alleges a violation of the regulatory standard at
30 C.F.R. § 75.1722(b) and charges as follows:
The No. 2 belt conveyer head drive was not guarded to
prevent persons from being caught between the belt and
pulley.
Section 75.1722(b) provides that:
"Guards at conveyordrive, conveyor-head, and conveyor-tail pulleys shall extend a
distance sufficient to prevent a person from reaching behind the
guard and becoming caught between the belt and the pulley".
Mr. Dingess issued this order on April 18, 1988, when he
found that the ~o. 2 belt conveyor head drive was not guarded.
He observed a miner greasing this belt drive unit at that time
while the belt was in operation without the guard. The miner
stated that the guard for this head drive had been removed for
several days.
The respondent admits the violation and I further find it to
be a significant and substantial violation. The head drive unit
was not guarded as to prevent a miner from becoming caught

577

between the belt and the pulley. Furthermore, the miner
stationed there must grease the belt while exposed to the moving
parts, open gears and rollers. Therefore, I find it to be
reasonably likely that this violation could result in a
permanently disabling injury involving one miner. Mathies,
supra.
I also find it to be a serious violation and caused by the
unwarrantable failure of the operator to comply with the cited
mandatory standard. The operator's superintendent who was in
charge of performing the preshift examination in this area had
actual personal knowledge the guard was missing and yet took no
action to replace it. This amounts to aggravated conduct on the
part of the operator because this condition was allowed to exist
for several days while a miner was assigned to this duty station.

Order No. 3175428 will be affirmed.
Order No 3175429
Order No. 3175429, issued pursuant to section 104(d)(l) of
the Act, alleges a violation of the regulatory standard at
30 C.F.R. S 75.1722Cb) and charges as follows:

A guard was not provided for the No. 1 belt conveyor
tail roller.
Mr. Dingess found that a guard was also not provided for the
No. 1 belt conveyor tail piece, which was located in the same
general area as the missing guard cited in Order No. 3175428,
supra.
The respondent admits the violation and the same rationale
applies to my finding that this violation was also significant
and substantial and occurred as a result of the operator's
unwarrantable failure to comply with the cited standard.
Accordingly, Order No. 3175429 will be af~irmed herein.
Order No. 3175430
Like the previous two orders in this docket, Order
3175430 was issued on April 18, 1988, pursuant to section
104(d)(l) of the Act, and alleges a violation of the regulatory
standard at 30 C.F.R. § 75.1722Cb), charging as follows:

~o.

The 002 Section belt conveyer head drive was not
guarded to prevent persons from becoming caught between
the belt and the pulley.

578

Herein, Mr. Dingess found that a guard was not provided for
the 002 section belt conveyor head drive unit. This particular
head drive unit had never been guarded, even though the belt had
been in place for approximately a month.
Once again, the respondent admits the violation and my
rationale for finding the violation to be significant and
substantial, serious, and an "unwarrantable failure" is the same
as for the previous two orders in this docket.
Accordingly, Order No. 3175430 will also be affirmed.
Order No. 3175435
Order No. 3175435, issued pursuant to section 104(d)(l) of
the Act, alleges a non-"S&S" violation of the regulatory standard
at 30 C.F.R. § 75.302 and charges that line brattice was not
installed as raquired to provide adequate ventilation to the
working faces.
Mr. Dingess issued this order on April 19, 1988, when he
observed that a line brattice or other approved device was not
being used to provide air to the face while active mining was
going on in the Number 3 entry. There was no detectable movement
of air in this entry.
The operator admits the violation.
The Secretary also charges that the violation was caused by
an unwarrantable failure to comply with the standard in question.
However, as stated earlier in this decision, in order to
establish "unwarrantable failure," the Secretary must establish
by a preponderance of the reliable and probative evidence that
the operator has engaged in "aggravated conduct constituting more
than ordinary negligence". Emery Mining Corp., supra. Rather
than evidence of aggravated conduct, what this record reflects,
at least as of April 19, 1988, is at best the educated guess of
the inspector and at worst, speculation on the part of the
inspector. I simply cannot find any hard evidence of aggravated
conduct or gross negligence on the part of the operator with
respect to this violation. The Secretary urges that the
operator's failure to install this line brattice was a "practice"
at this mine and for this reason the violation should be found to
have occurred as a result of the operator's "high" negligence.
However, there is no evidence of when this "practice" began, for
how long it continued or who knew about it, ordered it or
condoned it. Indeed, I don't find any evidence in the record
that such a "practice" existed on or before April 19, 1988,
although I concede it cectainly may very well have. Therefore, I
find that the instant order iu1p.roperly concluded that the

579

admitted violation resulted from Sterling's unwarrantable failure
to comply with the mandatory standard. Accordingly, Order ~o.
3175435 will be modified to a citation issued under section
104Ca) of the Act, and affirmed as such.
Order Nos. 3175436, 3175438 and 2995460
These three orders, all issued pursuant to section 104(d)(l)
of the Act, all allege a violation of the mandatory standard
found at 30 C.F.R. § 75.301 and essentially charge that the
quantity of air reaching the last open crosscut for the section
mentioned therein was less than the 9000 cfm required. The
operator admits all three violations.
Order No. 3175436 was issued by Mr. Dingess on April 19,
1988, when he measured the quantity of ai:;: reaching the last open
crosscut on the 001 section at 7,488 cfm. Because less than
9000 cfm were reaching the last open crosscut, this was a
violation of the cited standard.
The respondent admits the violation, but challenges the
alleged unwarrantability. I must concur with Sterling on this
one. As of this date, April 19, 1988, there was no direct
evidence of aggravated conduct on the part of the operator with
respect to this violation. The basis for issuing this order was
Dingess suspected that they were "short-circuiting" the air,
manipulating it from one section to the other, depending on where
an inspector was in the mine. He also saw a curtain laying down
in the return and believes that he knows what the company used it
for, i.e., "short-circuiting" the ~ir and sending it to whatever
section the inspector was on. The operator, however, has several
potential alternative explanations for that curtain being down
and flatly denies manipulating the air from section to section.
The issue of unwarrantability concerning this particular
order must be settled with the evidence that was either in
existence at the time the inspector issued the order or at least
that relates back to the time the order issued. He testified he
issued the instant order on the basis of his suspicion that the
operator was improperly regulating the air from one section to
another on April 19. In my opinion, a suspicion that the
operator is willfully violating a standard does not equate to
evidence of aggravated conduct on the part of the operator, at
the particular instant of time the order is issued, even if
subsequent investigation a day, a week or a month later
establishes that the operator is knowingly and willfully
violating the standard at that subsequent point in time. Herein,
evidence of subsequent violations of the same nature and of the
same standard to prove the degree of negligence that existed on

580

April 19 is not of sufficient weight to establish that the
instant voiolation was an "unwarrantable failure" to comply.
Therefore, Order No. 3175436 will be modified to a citation
issued under section 104(a) of the Act and affirmed.
The other two orders, issued the next day, on April 20,.
1988, by Mr. Dingess and Inspector Blume present an entirely
different situation. To confirm his suspicions of the previous
day, on April 20, Mr. Dingess brought another inspector with him
to Sterling's No. 5 mine. They synchronized their watches and he
proceeded to the 001 section while Inspector Blume went to the
002 section. At exactly high noon, they both took anemometer
readings of the quantity of air reaching the last open crosscut
on their respective sections. Inspector Blume measured only
1,512 cfm reaching the last open crosscut on the 002 section and
so issued section 104(d)(l) Ord~r No. 2995460 for an "S&S"
violation of 30 C.F.R. § 75.301. Mr. Dingess meanwhile measured
7,704 cfm in the last open crosscut on the 001 section and issued
Order No. 3175438 for a "non-S&S" violation of the same section.
This was an excellent investigative technique and makes an
iron-clad case for an "unwarrantable" violation on both sections.
On April 19th, the operator was put on actual notice that there
was a ventilation problem at the very least on the OOl'section
and perhaps on both sections, one being related to the other,
ventilation-wise. Furthermore, the-operator ~bated the violative
condition on the 001 section on the 19th by making adjustments
that the operator knew would adversely effect the air on the 002
section. Therefore, the two ventilation violations found on the
20th were without a doubt the result of the operator's aggravated
conduct and existed with the operator's actual knowledge and
disregard for the mandatory standard involved.
Additionally, I find the extremely low air Inspector Blume
found at the last open crosscut on the 002 section to be a
significant and substantial violation of the standard as well, as
his testimony concerning the reasonable liklihood of a signif icantly increased health hazard to the miners working there is
unrebutted and credible, and I do credit i t in making this
finding.
Accordingly, Order Nos. 3175438 and 2995460 will be affirmed
in their entirety.

581

Order No. 3172666
Order No. 3172666, issued on June 27, 1988, pursuant to
section 104Cd)(2) of the Act, alleges a "significant and
substantial" violation of the mandatory standard found at
30 -C.F.R. § 75.303 and charges as follows:
During a discrimination complaint investigation the
investigator determined through review of the preshift
examination books and statements from the operator that
the miners worked from April 19th to May 3, 1988,
without a preshift examination being conducted of the
areas worked on the second shift (maintenance shift).
Inspector Blume issued this order because the operator had
failed to have a certified person perforw a preshift examination
of the mine prior to the second shift between April 19 and May 3
of 1988. The second shift was a maintenance shift employing
three miners and a foreman.
Before April 19, one Danny Elliot
was the second shift foreman and the person certified to perform
the preshift examination. He was fired on April 19, 1988, and
not replaced until May 3, 1988. In the meantime, no preshift
examination was performed prior to the start of the second shift.
The operator contends the preshift examinations were being
done, but just not recorded.
I specifically reject that·
contention as incredible. As far as I am concerned, the preshift
examination bobk for the mine for the period between April 19,
1988 and May 3, 1988, establishes by a preponderance of the
credible evidence available that preshift examinations were not
being performed for the second shift during that entire time
period.
There is additional evidence to that effect. Mr. Ronnie
Brock, a special investigator for MSHA, had occasion to
investigate this allegation concerning preshif t examinations as
part of a discrimination complaint investigation involving two
discharged miners at Sterling's No. 5 Mine. It was reported to
him by the other two miners who continued to work the second
shift that from April 19, 1988, until May 3rd there was no
preshift examination performed prior to the second shift.
Furthermore, they told him that complaints were made to Harley
Wilder, the Mine Superintendent about the lack of a forem·an and
the lack of a preshift examination on the 19th of April. The
next night, the 20th of April, the same complaints were voiced to
Mr. Ralph Ball, the President of Sterling. Reportedly, Mr. Ball
indicated that he would try to have them a foreman by the
following week, which would have been around the first part of
May. I recognize the hearsay nature of this testimony, but it is
corroborated by the documentary evidence of the preshift

582

examination book itself and I do give it weight, particularly on
the issue of "unwarrantability".
I also recognize that the Commission recently rejected the
notion that any violation of section 75.303 is per se significant
and substantial in nature. Birchfield Mining Co., 11 FMSHRC 31,
35 (January 1989). The Mathies test is still the proper test to
apply in making the "S&S" finding and applying it here, I find
that the respondent's failure to preshift this mine on the second
shift for some two weeks running is a significant and substantial
violation of the mandatory standard. There is a violation of the
mandatory standard established, if not admitted. There is also a
discrete safety hazard presented in my opinion in that two miners
worked the second shift for some two weeks without a foreman
present and without a preshift examination being conducted
approximately a mile underground while a myriad of other
violations and hazards existed, as demonstrated earlier in this
decision. At least some of the other violations that existed at
that time were themselves significant and substantial and some
violations, particularly ventilation-related ones were repetitive
in nature as well. I believe the mining conditions and lack of
supervision were such during this period of time that the failure
to inspect and report any violative or hazardous conditions prior
to these two men going into the mine constituted an "S&S"
violation of the preshift standard because in my opinion there
was a reasonable liklihood that the hazard contributed to would
have resulted in an event in which there very well could have
been a serious injury.
Order No. 3172666 will be affirmed in its entirety.
Civil Penalty Assessments
A computer printout entered into evidence as Petitioner's
Exhibit ~o. 16, indicates to me that this operato~ has a
relatively lengthy history of roof control and ventilation
violations in the two year period prior to ~pril 17, 1989. This
is not a good sign~ to say the least.
There is some question raised as to the operator's financial
ability to pay these assess~ents and remain in business. At the
hearing the respondent put into evidence a document that purports
to be a financial statement. However, this statement is
unaudited and the CPA firm that submitted it attached a very big
disclaimer to it that renders it all but worthless for its
intended use, i.e., to prove the respondent's inability to pay.
Mr. Ball also testified that the No. 5 Mine is now closed, but
the ~o. 8 Mine was opened in latter 1988. The record really does
not contain any substantial evidence in a usable form concerning
the operator's financial condition. Therefore, I find that the

583

civil penalties ordered herein, infra, are appropriate
considering the size of the operator and such penalties will not
cause the company to discontinue in· business •.
Upon consideration of the entire record in this case and the
foregoing findings of fact and conclusions of law, I find that
the assessment of civil penalties is warranted as follows:
Citation/Order No.
3001604
3166112
3175428
3175429
3175430
3175435
3175436
3175438
2995460
31 72666

Date
9/11/87
4/5/88
4/18/88
4/18/88
4/18/88
4/19/88
4/19/88
4/20/88
4/20/88
6/27/88

Standard

Penalty

75.200
75.303
75.1722{b)
75.1722{b)
75.1722{b)
75.302
75.301
75.301
75.301
75.303

$ 1100
1200
500
500
500
200
200
400
500
750

ORDER
1.

Citation Nos. 3001604 and 3166112 ARE AFFIRMED.

2.

Order Nos. 3001603, 3175428, 3175429, 3175430, 3175438,
2995460, and 3172666 .ARE AFFIRMED.

3.

Order Nos. 3175435 and 3175436 ARE HEREBY MODIFIED to
citations issued under section 104{a) of the Act, AND
AFFIR..\1ED.

4.

Respondent, Sterling Energy, Inc., IS ORDERED TO PAY
civil penalties totaling $5850 within 30 days of the
date of this decision.

584

Distribution:
Mary Sue Ray, Esq., William F. Taylor, Esq., U.S. Department of
Labor, Office of the Solicitor, 2002 Richard Jones Road, Suite
B-201, Nashville, TN 37215 (Certified Mail>
Mr. Ralph Ball, President, Sterling Energy, Inc., P.O.
Box 1528, LaFollette, TN (Certified Mail)
/ml

585

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

UTAH POWER & LIGHT COMPANY,
Contestant

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

APR 12 1989

CONTEST PROCEEDING

.

Docket No. WEST 89-160-R
Citation No. 2876485; 3/16/89

.

Cottonwood Mine
Mine ID 42-01944

DECISION
Appearances:

Before:

Timothy M. Biddle, Esq., Susan E. Chetlin, Esq.
Crowell & Moring, Washington, D.C.,
for Contestant;
Robert Cohen, Esq., Office of the Solicitor
U.S. Department of Labor, Arlington, Virginia,
for Respondent.

Judge Morris

This case is before me under Section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq.,
(the "Act"), to challenge the issuance by the Secretary of Labor
of a citation charging Utah Power & Light Company C"UP&L"), with
a violation of the regulatory standard published at 30 C.F.R.
§ 75.1105.
After notice to the parties a hearing on the merits was held
in Denver, Colorado on April 5, 1989. The parties relied on oral
arguments, waived the filing of post-trial briefs and further
requested a decision without receiving the transcript of the proceedings.
Summary of the Case
Citation No. 2876485, issued on March 16, 1989, charged
contestant with violating 30 C.F.R. § 75.1105, which provides as
follows:
§ 75.1105

Housing of underground transformer
stations, battery-charging stations, substations, compressor stations, shops, and
permanent pumps.

586

[Statutory Provisions]
Underground transformer stations, batterycharging stations, substations, compressor
stations, shops, and permanent pumps shall be
housed in fireproof structures or areas. Air
currents used to ventilate structures or areas
enclosing electrical installations shall be
coursed directly into the return.
Other underground structures installed in a coal mine as
the Secretary may prescribe shall be of fireproof construction.
Citation No. 2876485 alleges the following violative
condition:
The transformer being used to supply 480VAC
to the 12th West belt drive located at
crosscut #2 12th West was not being vented
directly to the return.
When tested with chemical smoke, the smoke
was observed entering the intake entry for
the 12th West working section through holes
in the stopping being used to isolate the
tr an sf ormer. .A power cable was observed
exiting through one of the holes.
This hole
measured 3! inches wide x 8 inches high.
When tested in front of Coutby end), over,
at the sides of the transformer, smoke was
observed moving toward the intake stopping
that was located 18 feet 4 inches (measured)
away from the transformer.
A 12 inch vent tube was located on the left
rib inby the transformer.
The vent tube was
28 inches (measured) from the left corner of
the transformer and back 3 feet from the end
of the transformer and ran 150 feet to the
return.
There were no check curtains across
the cross cut to enclose the transformer.
The cross cut was open to the belt drive.

587

1) The transformer had been at this location
since Aug. 1988.
2) Approximately 2 weeks ago, a major air
change was done to increase the amount of
air to the newly installed longwall section.
3) The hole was made in the stopping 1 or 2
days earlier to supply power via the cable.
4) Management was aware the air change and
should have re-evaluated this transformer
for proper ventilation.
The above 4 items are contributing factors
concerning this condition.
Issues
The issues are whether a violation of 30 C.F.R. § 75.1105
occurred; if it occurred, should the violation be designated as
S & S and if a violation occurred was it due to the unwarrantable
failure of the operator to comply with the regulation.
Stipulation
At the commencement of the hearing the parties stipulated as
follows:
1. The Commission and the Administrative Law Judge hearing
the dispute have jurisdiction to determine this case.
2. Donald E. Gibson, an MSHA Inspector, was an authorized
representative of the Secretary at the time of the inspection.
3.

The Cottonwood Mine is a large coal mine.

4. Various exhibits can be admitted into evidence without
further authentication. These include Exhibits C-1, C-2, C-3, as
well as R-1 and R-2.

588

Secretary's Evidence
Donald E. Gibson is a federal coal mine inspector. He
is also an electrical specialist and he has been employed by
MSHA since May 26, 1987. The witness has extensive background
experience in mining as well as in his specialty. He is assigned
to the Orangeville, Utah office.
He is familiar with the Cottonwood Mine and on March 14,
1989, he began an electrical inspection at the mine. During
his pre-inspection conference with management, he advised the
operator why they were inspecting the mine. At that time he
also reviewed with management previous Triple-A inspections.
Those in attendance at the conference included maintenance
and safety representatives as well as the superintendent, mine
foreman and the miner representative. At the meeting they
also discussed the national sales policy manual, that is, the
inspector's manual which states the intent of. certain laws
and regulations relating to safety and health.
At this meeting it was indicated that certain District 9
policy had been rescinded.
On December 30 there was another inspection at the mine and
Inspector Gibson indicated to the company they would have to vent
transformers directly to the return. This was discussed with
representatives of the safety department including Tatton,
Norton and a miner representative. In the witness' opinion
"directly to the return" means the venting shall be without any
deviation. The Bureau of Mines recommends a 3,000 cfm flow of
air over transformers.
The company can use tubing to vent its transformers to the
return. If the area is vented without being enclosed it would
not be vented directly to the return.
After the pre-inspection on March 14 he started this
inspection and it continued on March 16, 1989. On that date
Inspector Gibson went underground at approximately 8:05 a.m.
to 8:15 a.m. He was accompanied by the superintendent of
maintenance, safety department representatives, and a miner
representative.
During the course of the inspection they went to the 12 West
Belt Area where he intended to observe the longwall where miners

589

were working. After leaving the longwall face they were on
their way outside. While traveling in a vehicle the inspector
noticed a power center in an open crosscut.
The power center was in crosscut 6.
(Crosscut 6 was marked
on Exhibit R-1.)
The equipment in the XC was a 480 VAC rectifier.
The rectifier was neither housed nor plugged. He then followed
tne electrical cable of the rectifier 400 feet to a stopping in
the main intake airway, which was also a primary escapeway. At
crosscut 2 the inspector observed that the cable went through
a hole in the stopping. Beyond the stopping was an energized
transformer. A person could pass through the stopping by using
a 5-foot high by 6-foot wide steel door.
(See Exhibit C-2
showing equipment in CX2.)
Also located in crosscut 2 were electrical belt starters
and belt drive electric motors. The belt entry also serves as
a secondary escapeway. ~/
Inspector Gibson believed the transformer was not being
vented directly to the return. To verify this he took 9
different smoke samples at various places close to the transformer.
(Marked as red X on Exhibit C-2.)
The long and short of his 9 samples were that the smoke was
not moving directly to the return.
Some of the smoke hung in
place and in the last 3 tests (closest to the stopping) the smoke
moved through the 3i" x 8" hole in the stopping.
It is permissible to knock a hole in the stopping but it
must be resealed.
The inspector opened the door in the stopping and saw smoke
in the air intake. He also repeated these tests for his supervisors who were present. In addition, the company representative
agreed they saw smoke in the air intake.
He then told company representative Peacock that the company
had a Cd)(2) order. He issued such an order because 15 miners
inby were subjected to the hazard of a fire occurring at the
transformer. The belt air was not isolated and there was no
isolation because of the hole in the stopping. In addition, the
secondary escapeway was not separated from the primary escapeway.
(The witness marked the intake air course with red arrows on
Exhibit C-2.)

1/ The inspector later conceded that the belt entry shown in
Exhibit C-2 was not an escapeway.

590

In addition there was a CO center inby the transformer. If
the inby crews came out the secondary return escapeway, that area
would already be contaminated by any smoke.
The vent pipe would also pick up the smoke if there was a
fire in the transformer area.
After Inspector Gibson orally issued his (d}(2} order,
company representatives claimed the company was no longer subject
to the Cd> series. Inspector Gibson believed otherwise but he
checked with William Ponceroff, his supervisor. Mr. Ponceroff
confirmed that Inspector Jones had just completed an inspection
and, in fact, the company was off the Cd) series.
For this reason Inspector Gibson issued a (d)(l) citation.
A company representative indicated that the hole in the
stopping had been made by a diamond drilling crew in the last
day or two. But the hole was not more than three days old.
The
inspector did not recall the name of the person he was given but
he didn't feel he was being too harsh on the operator in issuing
the (d)(2) order. He felt the company met the unwarrantability
feature.
In fact, the inspector previously had three conversations with management about venting directly into the return.
To be in compliance, the company would have had to erect a
fire wall check curtain to enclose the transformer and the air
would have to be channeled into the vent tube. Without the installation of a stopping, the smoke could go into the belt entry.
(See Exhibit C-2 to locate belt entry.)
When the inspector saw smoke enter the intake entry, he
concluded there was a violation of § 75.1105.
He then told company representative Tatton that if the
Jones' inspection was completed, the company could put up a check
curtain inby the transformer and plug up the hole in the stopping
with cinder block and plaster.
Additional smoke tests by Inspector Gibson showed the smoke
merely hanging in the area of the transformer: it was not being
drawn into the vent tubing.
Abatement was accomplished by a combination of steps.
Initially, a check curtain was hung (and rehung) outby the
transformer.
(See blue dots on C-2 for location of curtain.>
Further, the 12-inch metal corrugated vent pipe was extended
10 feet toward the transformer and an additional 5 feet to the
side.
(See green lines on Exhibit C-2 showing route of vent
piping from the transformer some 135 to 140 feet to the return
air in 3rd South entry.)

591

It took an hour and fifteen minutes to abate the violation.
Abatement was confirmed when smoke flowed directly into the tube.
Prior to abatement the transformer had not been vented
directly to the return.
Crosscut 2, where the transformer was located, is a work
area that must be pre-shifted and the hole in the stopping
was obvious. Someone told the drilling crew to do this work
and there had been three weekly examinations and two or three
electrical examinations of the area.
Some person must have
observed these conditions.
The inspector observed a beltman in the belt entry downwind from the belt drive. Any smoke would come down to him.
The safety and health of the beltman and the 15 miners in the
longwall would be affected by the hazard.
Any fire in the transformer or belt drive would generate
thick heavy smoke from the neoprene, rubber and transformer
insulation cables. Such smoke could take away your breath.
A W-65 self-rescuer would not filter such smoke.
It would only
take a small amount of it to overcome a miner.
Exhibit C-2 shows various fire-suppression devices in the
crosscut.
The installed heat sensors would detect any heat~
however, there are times when the solenoids will stick.
The inspector wrote a three-page citation describing the
conditions he observed. He also wrote four items which contributed to the citation.
These items, as testified by Inspector Gibson and as listed
on the citation, were as follows:
1. The company indicated that the transformer had been at
this location since August 1988.
2. Although he was told that there had been a major air
change two weeks ago, such a change should have caused the air
to draw better.
3. The hole had been made in the stopping 1 or 2 days
earlier to supply power to the cable.
4. When a major air change is made, the company should have
re-evaluated this transformer for proper violation.

592

The witness is aware of the definition of unwarrantable
failure. Basically, unwarrantable failure means aggravated
conduct by the operator, that the operator knew and was aware
of the concerns. He had talked to the operator repeatedly
and if after such discussions the company goes in the direction
of non-compliance then such conduct constitutes aggravated
negligence.
The company had experienced a major mine fire.
The company
has 24 belt drives and probably a transformer for each belt
drive.
None of the areas were enclosed before the citation was
issued and the inspector had only looked at two other belt
drives.
The inspector considered the violation to be serious because
the primary and secondary escapeway could be contaminated with
smoke. The 15 miners at the longwall and the beltman would be
affected.
The inspector concluded that the conditions here involved
unwarrantable failure on the part of the company for several
reasons.
Initially, the drill foreman had been told to knock
a hole in the stopping. The area was pre-shifted and in fact
some 18 to 27 pre-shifts had been done as well as 6 to 9 onshift checks. But no one reported the hole in the stopping.
In addition, Section 75.512 requires weekly examinations of
electrical equipment and this should have been discovered.
In addition, the inspector personally discussed venting
the transformer with upper management and they had 2 or 3 days
to re-evaluate their position after he was on the company's
property. In addition, he was astounded when he saw the
ventilation tubing and he concluded that the company could not
reasonably think that it could ventilate the transformer in
thls fashion.
Further, all pre-shifters have smoke tubes.
In addition,
the four items he listed on the citation indicated to him that
the operator was indifferent and did not seal or enclose the
transformer area so the ventilation pipe could accomplish its
desired result.
The inspector believed it was an S & S violation for a
number of reasons:
1.

Section 75.1105 was violated.

2. A strong safety hazard was involved as miners could be
overcome by smoke.

593

3. It was likely that an injury could result and it would
be serious; being overcome by smoke could result in disability
or a fatality.
Concerning gravity, the inspector concluded it was reasonably likely that an injury could result from the violative
condition.
It would be possible to have smoke in the entry
without being detected by a monitor. This occurred in a previous
26-minute fire where the surface did not receive a signal from
the monitors.
On cross-examination the inspector admitted that the transformer was enclosed in a metal container and so there was no
violation in the first sentence of the regulation. He believed
the second sentence had been violated. 2/
The revoked District 9 policy in essence stated that an
operator was in compliance if it vented a transformer into a
return entry "eventually". The District 9 policy which was
revoked did not address transformers as such.
On December 20, the Manager of District 9 rescinded previous District 9 policy and a memorandum to this effect went to
the inspection force.
Inspector Gibson did not give the company
anything in writing nor did they ask for it.
(Exhibit C-4
revokes prior policy.)
On December 30, he discussed the new policy with UP&L and
told the company they would have to ventilate directly into the
return, use an air lock, 3/ further, all enforcement would be
guided by Part 75.
The reason for ventilating is to keep the
heat down on the equipment by keeping the transformer cool.
The inspector was aware that § 75.1105 is part of a series
of fire regulations and is not a ventilation regulation.

11

The second sentence of the cited regulation reads:
Air currents used to ventilate structures or areas
enclosing electrical installations shall be coursed
directly into the return.

ll

Air locks are not involved in this case.

594

The rectifier in crosscut 6 was not energized nor housed,
nor was it vented directly to the return.
Walking down the intake air, the flow of it was in the
inspector's face at about 62,000 - 63,000 cfm.
The CO sensor was a block away from the transformer.
The
sensor will activate at 15 parts per million. He did not test
the sensor and he supposed it was operable.
He was tracing cable that went to the crosscut 2 area.
The hole in the stopping was at the upper left side. The
stopping was 18 to 20 feet wide, the hole in it was 3i" x 8"
It is not unusual for cable to go through a stopping. The
rectifier cable is ll inches in diameter and it took up that
much of the 3l" x 8" hole in the stopping. Sufficient room
remained for a person to reach his hand through the opening.
There were other problems and other potential violations
in the area but the inspector did not issue citations from these
other conditions because he wanted to be fair with the operator.
It seemed to him that issuing additional citations would be
unfair.
It was 18 feet from the transformer to the stopping.
transformer was in a metal box and it was free standing.

The

The mine roof was above the transformer.
It rested on
gravel. The vent was corrugated metal and located by the left
corner.
It was two feet back from the transformer and located
to the side.
The cable from the rectifier was connected to the transformer.
He was not sure if the belt entry at this location was a
secondary escapeway. The witness agrees that the belt entry
was not a secondary escapeway because the secondary escapeway
makes a bend and it goes into the main return before it reaches
this area.
The inspector knew the vent tube was not venting as a result
of smoke tests. Vent tubing attempts to ventilate an area and to
go into the main return.
The transformer must be close to the belt drive and the
company attempted to comply with the regulation by putting in
ventilation tubing.

595

A transformer fire could affect workers.
The belt was not
isolated and the secondary escapeway was not separated from the
primary but this is based on the inspector's misapprehension
that this area was a secondary escapeway. The power pack is
also protected by sprinklers.
It is the Secretary's scenario
that there could be a failure of the water system or the CO
system or that the belt attendant would not react to a fire.
In his scenario some things could go wrong.
A two-man diamond driller team made a hole in the stopping
as the inspector was told by company representative Tatton.
Inspector Gibson did not talk to the diamond drillers. He
also ask.ed the company but they could not identify the drillers.
Inspector Gibson discussed venting directly into the return
with the company officials. He thought they were ignoring his
earlier warning but he didn't think the vent tube could vent
the transformer directly into the return. They said the tube had
been there for a month.
It would be reasonable for the company
to check to see how the tube was drawing.
The hole in the
stopping served to accommodate the cable and was not for ventilation purposes.
The witness issued the citation because the air was not
being pushed over the transformer.
The violation existed before
the hole was put in the stopping. In sum, the hole in the
stopping only contributed to the violation.
The violation would still have been a unwarrantable failure
even if there had been no hole in the stopping.
On December 20, 1988, venting directly to the return became
a requirement by virtue of a national MSHA directive.
The inspector assumed that the major air change undertaken
by the operator was an increase of 40,000 cfm.
Such an increase
would permit the air to draw better.
Concerning unwarrantability, the inspector was told that the
foreman received a directive to put the 3!" x 8" hole in the
stopping. The hole was a catalyst and a contributing factor in
the unwarrantable failure designation.
The inspector was "astounded" when he saw an open area
where the transformer was located was not enclosed as by a check
curtain or omega wall.

596

In his citation the inspector stated that 15 miners could be
impacted by a transformer fire but this does not include the belt
attendant. He did not know if the beltman was always in the area
of the transformer. However, the beltman would be one to recognize the smoke conditions.
When the inspector advised the operator of the change in
policy, he recognized that UP&L needed time to comply, and he
personally afforded them such an opportunity. They could comply
in 15 to 30 days. They could comply by evaluating the transformer and they might relocate it, and they could re-evaluate the
system. The company should have re-evaluated its transformer.
Section 75.1105 has never been changed nor has there been
a change since the 1969 Coal Act regarding venting directly into
the return.
The 3l" x 8" hole in the stopping was obvious.
Sufficient smoke could get through the 3l" x 8" hole to
contaminate the adjoining airway.
The inspector took no air readings as he did not think it
was necessary. He didn't see any company personnel taking air
readings and the air was going directly to the return.
If the inspector had found fire suppressor devices in that
area not functioning he would have issued a § 107 imminent danger
order.
He has recently seen a movie where all fire suppression
devices failed during a mine fire.
Fifteen to thirty days is a reasonable time to comply. The
vent tube had been there for one month before March 16, 1989.
The smoke through the 3l" x 8" inch hole went into the
intake. There was 60,000 cfm in the intake.
In the event of a raging fire the stopping would quickly
burn.
JEFFREY A. RACHETTI is a miner mechanic at the Cottonwood
mine as the Safety and Health Representative for the UMWA.
He accompanied Inspector Gibson on walk-arounds and he was
with him when this citation was issued.

597

Mr. Rachetti agrees the (d)(l) order stated a violation of
the regulation. He also agrees that it was a unwarrantable
failure violation because every day people travel that area and
they should have noticed it in their travels.
Mr. Rachetti was with Inspector Gibson during the smoke tube
test and he believed Gibson's testing was adequate.
Concerning seriousness, he observed a real hazard in the
smoke leaving the area via the hole in the stopping and going
into the airway.
There was a possibility of a fire and the company has had
a few fires.
One of them killed 27 people, and this could happen
again.
The witness was familiar with the CO monitoring intakes and
there was no problem with the monitoring systems within a week
of the order. However, during that previous week there had been
electrical problems. The operator has a back-up electrical
system.
There is a beltman assigned to the 12 West Belt Drive. He
walks to the tailpiece, which would be 150 to 200 feet from the
working face.
The area where the transformer is located would be
2,000 to 3,000 feet away from the face.
In the witness' opinion Gibson is a very consistent inspector, that is, he does his job and explains things to the
miner representatives. Mr. Rachetti has a high opinion of
Mr. Gibson's skill.
The witness travels with other federal inspectors. Section
75.1105 is a violation and the transformer was not properly
vented.
The tube was not over the transformer and it would not draw
smoke. The company should have noticed the hole.
The vent tubing was in place 30 days before the citation and
he learned this from someone in the safety department.
The CO system is activated at 30 PPM (parts per million).
The vent was physically in view when he was in the area with
Inspector Gibson.

598

UP&L's Evidence
GLENN JOHNSON has been UP&L's general belt supervisor for
a year; prior thereto he was the belt maintenance foreman.
Previously he was a coal miner and also a hard rock miner.
He works the day shift supervising maintenance and all
conveyor belt lines in the mine.
The witness is familiar with the 12 West Section.
(Witness shows the 12 West Belt Drive on Exhibit C-1)
A belt drive is a mechanism that moves the belt and
transports coal.
In 12 West there is one belt drive which is 3200 feet long.
Coal is dumped at crosscut 32, the headgate of the longwall.
From that point it is transported by belt to the outside.
Electricity comes to the belt via a high voltage cable
through a transformer to a starter box in a belt drive. There
is a step-down unit for the transformer and the electricity is
stepped down to 480 volts. The starter box itself is 15 feet
from the transformer.
(The witness marks starter box as "SB"
on Exhibit C-2.)
SB is metally enclosed; 6 foot long, 3 foot high and sits
on legs.
The witness also identified the power pack (pp) which is a
metal tank 3 foot square.
This is all in the No. 2 crosscut in
12 West Section. The height of the area is 9 feet.
The block stopping in crosscut 2 consists of 1 inch by 16
inch cinder blocks. The company mortars the joints on the cinder
blocks.
The stopping contains a 6 foot by 5 foot steel door and the
stopping is coated on the intake side to retard air movement.
The beltman inspects and maintains the area.
Water sprinklers are installed over the belt drive and over
the power pack.

599

A fire hydrant is located at the side of the drive and heat
and sensors are connected to the fire detection systems located
at 50 foot intervals. There is also 500 feet of hose stored
within 50 feet of the fire hydrant.
A foam adductor mechanism attaches to the end of the fire
hose and this creates suction which introduces foam into the
water. The foam is a fire-fighting device that removes oxygen
from the atmosphere.
On March 16, the foamer was 15 feet from the south end of
the transformer.
In addition, there were 40 to 50 pound sacks of rock dust on
the east side of the transformer and within 10 feet of it on the
intake side of No. 2 stopping. This was approximately 250 pounds
of rock dust, which covers coal on the floor and is used_ for fire
fighting purposes.
There are.3 No. 10 fire extinguishers in the area. Two
are on the south side of the transformer and one is adjacent to
the starter box.
There are also 3 SCSRs in the adjacent area, one CO sensor
in the belt entry and one in the adjacent entry.
The equipment the witness described was in place on March 16
and witness Johnson is in the 12 West Belt area four times a
shift.
Seventy-five percent of the operator's coal comes from this
section.
On March 16 he saw Inspector Gibson at 10:00 a.m. when he
walked into the area. Inspector Gibson was looking at the
equipment and he obs.erved him use a smoke tube.
Inspector Gibson proceeded to inspect the stopping.
looking at the cables that went through the stopping.

He was

The inspector told the company representative Peacock that
there was a problem with a hole in the stopping and he then
proceeded to test with smoke between the transformer and the
stopping.
The smoke tube is a chemical and when it is released into
the air it produces smoke. The purpose is to detect air flow.
Johnson observed three tests at the transformer and two tests at
the stopping.

600

On one of the tests he could see no smoke movement. The
equipment entering the 3!" x 8 11 hole in the stopping was 1-inch
cable and a smaller telephone cable.
The third smoke test that Johnson observed was in the transformer area and the fourth test was in the center of the
transformer and then at the north end of the transformer.
The witness saw most of the smoke go into the vent tube.
The vent tube had been there for about a month and that was the
only airflow through the entry.
The belt attendant checks the transformer and he is required
to check with the power center of the transformer. He keeps a
record of this check. He physically goes into the area.
The beltman marks his cards to show checks made on one hour
intervals.
On the 16th Witness Johnson did not make any notes.
He had seen the citation issued by Inspector Gibson concerning conditions and practices.
He agrees some smoke went through the hole in the stopping
and ventilation was going through the tube when he put his hand
up to it. It is possible that all the air was not going into the
tube.
The witness saw no smoke from the test on the transformer
and didn't know if there was a violation.
Part of the smoke hung suspended on the north side but most
of it went into the tube.
On the test on the south side of the
transformer the smoke simply hung there. He saw smoke from two
tests going toward the tube.
He did not attempt to show Inspector Gibson if the fire
suppressant equipment was working in the area.
Mr. Johnson did not know who made the hole in the stopping
and did not know the name of the foreman.
The holes were not
sealed and it appeared that the workers had knocked out an entire
cinder block.
No protection was provided for the trailing cables or
through the stopping and he did not know if the cable was ever
energized.

601

Mr. Johnson concedes he is not an expert in ventilation
nor in ventilating transformers. However, he was satisfied that
the tube was ventilating the transformer.
The stopping hole should have been observed by mine management and the hole existed for one or two days.
The hole put
there was to get the cable to the power supply.
Mr. Johnson was involved in abating the citation. They
plugged the hole and hung curtain on the north end of the transformer.
Gibson rechecked and it was still inadequate. The tube
was changed in length and direction.
During the test the inspector said the effort was still
inadequate; they were not getting airflow at the south end of the
transformer.
The witness agreed that you could see smoke drifting into
the belt entry.
Gibson asked Peacock and another individual to go to the
intake side of the stopping. In this test, within 16 feet of
the stopping, smoke went through the hole in the stopping.
The airflow would go over the belt drive and course to
No. 4 crosscut and vent directly into the return.
(On R-1 the
witness marked directional flow of the smoke with red arrows.)
Smoke will activate the CO monitors.
Discussion
The initial issue to be considered is whether or not the
violation of Section 75.1105 occurred.
On this issue the credibility determination must be made
between the testimony of Inspector Gibson and UP&L's witness
Johnson.
I credit the testimony of the inspector for several
reasons.
The inspector is clearly a knowledgeable expert concerning ventilation. In comparison, Witness Johnson readily
admitted that he was not a ventilation expert.
I further credit
the inspector's testimony because it was forthright and positive
as compared with Mr. Johnson's testimony which at times hedged
as to whether or not the vent pipe was in fact ventilating the
transformer.

602

On Inspector Gibson's testimony it is clear that the
transformer was not in fact vented directly into the return
and a violation of the regulation occurred.
A further issue presented is whether the occurrence should
be designated as significant and substantial within the meaning
of the Act.
Section 75.1105 embodies the statutory provisions and it was
originally enacted by the Federal Coal Mine Health and Safety Act
of 1969. It has essentially ranained intact until this time.
The Secretary, relying on the legislative history of the
1969 Coal Act, argues that any violations of § 75.1105 are per se
significant and substantial. The legislative history of the 1969
Act 4/ expresses the Congressional view as follows:
Section 212(c)
This section provides for certain underground equipment that could cause fires if not
functioning properly to be placed in fireproof
structures. Air that is used to ventilate the
structure and which might contain noxious fumes
must be passed directly to the return air.
Experience has shown that such a requirement will reduce the possible mine fire hazards
with accompanying inherent dangers to human life
and property. In the event a fire should occur
in one of these installations the type of equipment enclosed is of such a nature that considerable smoke and fumes are emitted and therefore
should be coursed directly into the return aircourse before endangering human life.

4/ 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 204 (1975)
C"Legis. Hist.")

603

In Birchfield Mining Company, 11 FMSHRC 31 (1989) the
Commission rejected a per se argument as it related to the
violation of a different regulation. I likewise reject the
per se argument. However, the credible evidence as recited in
the summary of the evidence establishes the violation was s & s
as outlined by Commission doctrine expressed in Mathies Coal
Company, 6 FMSHRC 1 (1984) and U.S. Steel Mining Co., 6 FMSHRC
1573-74 (1984).
For the foregoing reasons the circumstances here constitute
an S & S violation of the regulation as contained in Section
104(d)(l), 30 u.s.c. § 814(d)(l) of the Act.
The final issue concerned is whether the circumstances
involved here are due to the unwarrantable failure of the
operator to comply with the regulation.
The Commission has clearly delineated its views of the
meaning of unwarrantable failure.
It means "aggravated conduct,
constituting more than ordinary negligence, by a mine operator in
relation to a violation of the Act." Emery Mining Corporation,
9 FMSHRC 1997-2004 (1987). See also, Quinland Coals, Inc.,
10 FMSHRC 705 (1988), and Helen Mining Company, 10 FMSHRC 1672
(1988).
It is uncontroverted in this case that the policy in MSHA
District 9 for many years was to the effect that transformers
did not have to be ventilated directly to a return air course.
On December 30, 1988, there was a meeting where the company was
advised that previous District 9 policy had been rescinded.
Thereafter, the company would have to vent transformers and
similar installations directly to the return.
It is further
uncontroverted in the record that the company did, in fact,
install a 12" corrugated metal vent pipe, one end of which was
in close proximity to the end of the transformer.
It extended
from that point toward the belt drive entry, a distance of
25 feet, and then extended down the belt entry to the 3rd South
air return, a distance of approximately 90 feet (See directions
and scale in Exhibit C-2). The record is further uncontroverted
that the installation was completed by the operator about 30 days
before this citation was issuedi namely, about mid-February 1989.
Such an installation contradicts any view that the operator's
actions constituted "aggravated conduct". To the writer it
establishes that there was an attempt to comply with the regulation on the basis of the advice the operator had received from
the inspector on December 30, 1988.

604

For the foregoing reasons I conclude that the operator's
conduct was not aggravated within the meaning of the Emery
Mining Company, et al case precedent.
I would rule differently if I concluded the metal corrugated vent tubing was merely a charade to comply with the
regulation, but I find it was not. The inspector testified he
was "astounded" to observe this venting. Further, he could not
believe that the company would think that this would ventilate
the transformer. I concede the inspector may well have been
astounded because what he saw conflicted with his expertise.
However, the uncontroverted facts again are that when abatement
was accomplished the transformer was vented by using the tubing.
The tubing itself was extended about 10 feet toward the end of
the transfo~mer and about 5 feet to the side, and a curtain was
hung to enclose the area in the crosscut. I accordingly conclude
that the operator did not ignore the inspector's advice, nor did
they ignore the new MSHA policy, but they acted in a responsible
manner. The fact that its effort did not accomplish the desired
result cannot work to its detriment. In sum, the operator's
conduct was not aggravated within the meaning of the Commission
decisions and the factual circumstances cannot be described as a
result of the company's unwarrantable failure to comply. The'
designation of unwarrantable failure in the citation should be
stricken.
Consolidation Coal Company, 9 FMSHRC 782 (1987) (Melick, J),
relied on by the Secretary, is not inapposite the views expressed.
here.
In Consolidation the operator did nothing and, in fact,
relied on the previous interpretation that no violation occurred
so long as the power center was "eventually" ventilated to the
return.
9 FMSHRC at 785. But this was the prior policy that had
been revoked in December, 1988.
Summary
To summarize the action to be taken:
I conclude the
104Cd)Cl> Citation No. 2876485 should be affirmed under Section
104(a) of the Act and not under Section 104Cd)(l) of the Act.
For the reasons previously stated the citation should be
designated as significant and substan~iali further, the
designation of unwarrantable failure should be stricken.
For the foregoing reasons I enter the following:

605

ORDER
1. Citation No. 2876485 is affirmed as a violation
under Section 104(a) of the Act.
The allegations that contestant violated section 104(d) of
the Act are stricken.
2. The allegations that the violation of the citation are
significant and substantial are affirmed.
3. The allegations that the contestant's unwarrantably
failed to comply with the regulation are stricken.

Law Judge

Distribution:
Timothy M. Biddle, Esq., Susan E. Chetlin, Esq., Crowell &
Moring, 1001 Pennsylvania Ave., N.W., Washington, D.C. 20004
<Certified Mail)
Robert Cohen, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified
Mail)
/ot

606

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

APR 12 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF
WILLIAM J. KELLER
Petitioner

DISCRIMINATION PROCEEDING
:

.
.
:
.
..

v.
CONSOLIDATION COAL COMPANY,
Respondent

Docket No. WEVA 88-202-D
MORG CD 87-22
Ireland Mine

DECISION
Appearances:

Before:

Linda M. Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, PA,
for Complainant:
Michael R. Peelish, Esq., Pittsburgh, PA, for
Respondent

Judge Fauver

This proceeding was brought by the secretary of Labor under
§ 105Cc> of the· Federal Mine Safety and aealth Act of 1977,
30 u.s.c. § 801 et seq. The Secretary contends that Respondent

violated§ 105(c)(l) by reprimanding and threatening William J.
Keller for engaging in protected activities and by applying a
company policy requiring employees to report safety complaints
first to a foreman or mine management before reporting them to a
government inspector or a mine safety committee member. The
Secretary seeks injunctive relief and a civil penalty.

Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
and additional findings in the discu~sion that follows.
FINDINGS OF FACT
1. On July 3, 1987, William J. Keller was working as a
precision.mason in the Three North Section of Respondent's
Ireland Mine. The mine produces coal for sale or use in or
affecting interstate commerce.

607

2. Keller and Harry Gallagher were building an overcast, a
job that required about eight bags of block bond. Only one bag
of block bond was at the construction site.
3. Following a common practice at the mine, after they
applied the bag of block bond they searched for block bond in
other parts of the mine. Keller looked in the belt entry and
Gallagher searc.hed the supply track. Both miners considered the
places in which they were searching to be part of their work area
for the purposes of the construction job.
4. The two miners had previouly searched areas of the mine
to look for work materials, without asking permission of a
foreman and without being reprimanded for such practice. Local
union president Jerald Stephens could not recall any case in
which a miner was disciplined (before the instant case) for
leaving his work area to search for materials. Witnesses Keller,
Gallagher, Stephens, and Wise testified that it was a common
practice for miners to looK for work materials in the mine.
Keller's foreman had instructed him on previous occasions that if
he needed supplies, he should look for them. Gallagher
had never been instructed that he should first contact a foreman
before looking for supplies.
5. While looking for block bond, Keller came upon an
inspection party in the belt entry: state mine inspector Colin
Simmons, company mine safety representative Chris Alloway, and
union safety committeeman Billy Wise.
Inspector Simmons
cautioned Keller by telling him that he (Keller) had just walked
under an unguarded trolly wire. After walking a bit farther,
Keller stopped, turned, and told Billy Wise that there was tight
clearance and an upguarded high line in the supply track. This
statement was audible to Inspector Simmons as well as to Wise and
others present. It was, in effect, a complaint of two alleged
safety violations or dangers.
6. The inspection party went to the supply track area
mentioned by Keller, and there Inspector Simmons issued two state
citations for the conditions Keller had mentioned. After the
issuanc~ of the citations, the company mine safety
representative, Alloway, asked Wise,
"Does Mr. Keller always
cause trouble like this?" (Tr. 77.)
7. After Keller finished his shift Con Friday, July 3,
1987), the shift foreman met him outside and told him that the
mine superintendent, John Snyder, wanted to see him the following
Monday.
8. Over the weekend, Keller told the local union president,
Stephens, that Snyder wanted to see him on Monday. Stephens said
he would accompany Keller to the meeting with Snyder.

608

9. That Monday, at a meeting in Snyder's office, Snyder
reprimanded Keller for reporting safety violations to a state
inspector and a safety committee member, and threatened him with
discharge if he reported safety complaints to a federal or state
mine inspector or to a union safety committeeman in the future.
Keller testified that Snyder stated, "I cost him a lot of money
on July 3rd by turning in those violations and he told me if I
ever talked to a safety committeeman or a state or federal mine
safety inspector that he would discharge me." (Tr. 12.) Stephens
confirmed that Snyder reprimanded and threatened Keller, and that
the threat was serious.
(Tr. 136, 139.) I credit Keller's and
Stephens' testimony on this matter.
10. Harry Gallaher was not reprimanded or threatened for
walking up the supply track to look for block bond.
11. Respondent has a policy that mine employees must first
report safety hazards or violations to a supervisor or mine
managenent before they report them to a government inspector or
safety committee member.
DISCUSSION WITH FURTHER FINDINGS
In order to establish a prima facie case of discrimination
under § 105(c) of the Act, a miner must prove that Cl) he engaged
in protected activity and (2) the adverse action complained of
was motivated in any part by that activity. In order to rebut a
prima facie case, an operator must show that no protected
activity occurred or that the adverse action was in no part
motivated by protected activity. If the operator cannot rebut
the prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it also was motivated by the
miner's unprotected activity alone and would have taken the
adverse action in any event for the unprotected activity.
Secretary on behalf of Robinette v. United Castle Co., 3 FMSHRC
803 (1981).
Keller was engaged in a protected activity when he reported
alleged safety hazards or violations to his safety committeeman,
Billy D. Wise, in the presence of a state mine inspector, on July
3, 1987.
Respondent has demonstrated a hostile attitude towards its
miners' exercise of complaint rights protected by§ 105(c)(l) of
the Act.
Billy Wise, who has served as a member of the mine
safety committee and grievance committee and as vice president of
the local union, testified that Respondent did not like to have
employees turn in violations to federal or state inspectors and
that many employees did not report violations because they were
afraid of reprisal.
(Tr. 101-102.) Harry Gallagher t~stified
that an assistant mine superintendent had told him not to tell
government inspectors or safety committee members about
violations.
(Tr. 124-127, 132.) Jerald Stephens, president of

609

the local union, testified that some miners were hesitant to
report conditions to inspectors "because they don't want to put
their jobs in jeopardy." (Tr. 139.) I credit the testimony of
the above witnesses.
I do not accept Respondent's contention that it was
motivated to reprimand Keller because he left his work area
without permission. Gallagher was not reprimanded for searching
for bond block at the same time Keller searched a different entry
for bond block. The evidence showed that Keller and Gallagher
were simply following a mine custom and practice in looking for
bond block away from the immediate construction site. Employees
in the past had followed this practice and there was no evidence
of any other ~nployee being reprimanded for searching for work
materials without permission of a foreman.
I find that
Respondent's contention that Keller was reprimanded because he
left the work area without permission was a mere pretext.
Respondent, through its mine superintendent, John Snyder,
reprimanded Keller because he had reported safety violations to a
safety committeeman and to a state inspector, and threatened
Keller with discharge if he ever reported safety violations to a
federal or state inspector or to a safety committee member in the
future. This reprimand and threat interfered with Keller's right
to engage in protected activities under § 105(c) of the Act and
therefore violated that section. Considering all of the criteria
for a civil penalty in§ llOCi) of the Act, a civil penalty of
$1,200 is assessed against Respondent for this violation.
Respondent has a policy that mine employees must first
report safety h~zards or violations to a supervisor or mine
management before they report them to a government mine inspector
or a safety committee member. The local union president, Jerald
J. Stephens, who has been employed at this mine for 19 years,
described the policy as follows: "the practice is report things
to your immediate for~~an first and then if you get no
satisfaction, then you are to go on to your steps, which you see
your safety corruni tteeman or the state or federal agency" (Tr.
147). This same policy is illustrated by the mine superintendent's answers to the following questions (Tr. 183-184):
JUDGE FAUVER: When you talked to Keller and Stephens,
the thrust of what you were saying to Keller seems to
have been that he was causing unnecessary citations
for this mine.
THE WITNESS:
I think the thrust of the conversation
was that he needlessly got us two citations because
he left his immediate work area to go out there and
tell Simmons. He could have very well got on the
phone and called his immediate suoervisor and had
them corrected the same way.
~

610

JUDGE FAUVER: This is something that could have
been done kind of in the family without involving
the state inspector?
THE WITNESS:

Correct.

JUDGE FAUVER: Had the inspector gone down the belt
entry and had Keller been mixing the block bond and
working on the overcast and if he had told the
inspector about these two violations at that point,
would you have reprimanded or cautioned him?
THE WITNESS:
I don't know if I would have personally
said anything but I would have maybe had his frontline supervisor again go over the important step they
should bring their problems to mine management and then
we don't have to receive a citation to get every little
thing that they think is wrong corrected.
JUDGE FAUVER: Do you believe that that kind of
communication to Keller would be a discouragement of
his exercise of a right to talk to an inspector who
is in his work place?
THE WITNESS:

No, sir.

Respondent's policy inhibits miners from reporting alleged
violations or dangers to inspectors or safety committee members~
it is an unjustified interference with their exercise of rights
under§ 105Cc)Cl> of the Act, and therefore violates that
section.
In Local Union No. 1110 and Carney v. Consolidation Coal
Company, 1 FMSHRC 338 (1979), the Commission held that a
reprimand of a safety committee member for leaving his assigned
duties to report an alleged safety violation or danger to MESA,
the predecessor to MSHA, violated§ llO(b) {the
anti-discrimination section) of the 1969 Mine Safety Act, which
is the predecessor to§ 105{c)(l) of the 1977 Act. It also held
that the company's "permission policy" -- requiring the company's
permission before a member of the safety committee could leave
his assigned duties to report safety complaints to federal
inspectors or their agency -- violated the 1969 Act's
anti-discrimination provision. The Comn1ission affirmed Judge
Broderick's order to Consolidation Coal Company to "cease and
desist from enforcing a policy requiring [the Colnpany's]
permission before a member of the Mine Health and Safety
Committee can leave his assigned duties to bring safety
complaints to the Secretary "{id., at 340).
In the instant case, the Secretary is similarly entitled to
a cease and desist order regarding ~espondent's violative policy
of requiring employees to report alleged violations or dangers

611

first to a supervisor before reporting them to a government
inspector or a safety committee member. This ruling does not
relieve or affect a miner's obligation to report a violation or
hazard to his supervisor where special circumstances, e.g., a
work refusal, create such a duty. For example, in a work refusal
case, the following legal principles apply (quoted from the
Commission's decision in S & M Coal Company, Inc., et al (Slip
Op. p. 6; Sept 26, 1988)):
A miner has the right under section 105Cc) of the
Mine Act to ref use to work if the miner has a good
faith, reasonable belief that continued work
involves a hazardous condition. Pasula, supra,
2 FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at
807-12. See also, e.g., Metric Constructors, supra.
Where reasonably possible, a miner ref using to work
ordinarily must communicate or attempt to communicate
to some representative of the operator his belief
that a hazardous condition exists. Reco, suora, 9
FMSHRC at 955; Dunmire & Estle, supra;-4 FMSHRC at
133-35. See also Miller v. Consolidation Coal Co.,
687 F.2d 194, 195-97 (7th Cir. 1982) (approving
Dunmire & Estle communication requirement).
CONCLUSIONS OF LAW
1.

The judge has jurisdiction over this proceeding.

2. Respondent violated§ 105(c)(l) of the Act on July 6,
1987, by reprimanding and threatening William J. Keller for
engaging in activities protected by that section.
3. Respondent's policy of requiring employees to report
alleged mine safety or health violations or dangers first to a
supervisor or mine management before reporting them to a
government inspector or a mine safety committee member violates §
105(c)(l) of the Act.
ORDER
WHEREFORE IT IS ORDERED that:
1. Respondent shall pay a civil penalty of $1,200 within 30
days of this Decision.
2. Respondent shall cease and desist from reprimanding
threatening, or otherwise discriminating against employees for
engaging in protected activities under§ 105(c)(l) of the Act.
3. Respondent shall cease and desist from enforcing a
policy of requiring employees to report alleged mine safety or
health violations or dangers first to a supervisor or mine

612

management before reporting them to a federal or state inspector
or a mine safety committee member.

~~::rw.....-

William Fauver
Administrative Law Judge

Oistibution:
Linda M. Henry, Esq., Office of the Solicitor, u. S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19.104 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, Legal
Department, 1800 Washington Road, Pittsburgh, PA 15241 (Certified
Mail)

iz

613

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

22041

APR 12 1989
PAULA L. PRICE,
Complainant

.

v.

DISCRIMINATION PROCEEDING
Docket No. LAKE 86-45-D
VINC CD 85-18
Monterey No. 2 Mine

MONTEREY COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Linda Krueger MacLachlan, Esq., 314 North
Broadway, St. Louis, Missouri for the Complainant:
Thomas c. Means, Esq., Crowell & Moring,
Washington, D.C. for the Respondent.
Judge Melick

This case is before me upon the Complaint by
Paula L. Price under section 105(c}(3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seg.,, the
"Act," alleging discrimination by the Monterey Coal Company
(Monterey) in violation of section 105(c)(l) of the Act.l/
I/section 105(c}(l) of the Act provides as follows;
No person shall discharge or in any manner
·
discriminate against or cause to be dlscharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to
this Act because such miner, representative of
miners or applicant for employment, has filed or
made a complaint under or related to this Act,
including a complaint notifying the operator or the
operator's agent, or the representative of the
miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or
other mine or because such miner, representative of
miners or applicant for employment is the subject
of medical evaluations and potential transfer under
a standard published pursuant to section 101 or
because such representative of miners or applicant
for employment has instituted or caused to be
instituted any proceedings under or related to this
Act or has testified or is about to testify in any
such proceeding, or because of the exercise by such
miner, representative of miners or applicant for
employment on behalf of himself or others of any
statutory right afforded by this Act.
614

In her Complaint to the Secretary of Labor and to the F8deral
Mine Safety and Health Administration CMSHA} on July 15,
1985, pursuant to section l05(c)(2} of the Act2/ Ms. Price
alleged as follows:
-

~/Section 105(c}(2} of the Act provides as follows:

Any miner or applicant for employment or
representative of miners who believes that he has
been discharged, interfered with, or otherwise
discriminated against by any person in violation of
this subsection may, within 60 days after such
violation occurs, file a complaint with the
Secretary alleging such discrimination. Upon
receipt of such complaint, the Secretary shall
forward a copy of the complaint to the respondent
and shall cause such investigation to be made as he
deems appropriate. Such investigation shall
commence within 15 days of the Secretary's receipt
the complaint, and if the Secretary finds that
such complaint was not frivolously brought, the
Commi$sion, on an expedited basis upon application
of the Secretary, shall order the iffi!'llediate
reinstatement of the miner pending final order on
the complaint. If upon such investigation, the
Secretary determines that the provisions of this
subsection have been violated, he shall immediately
file a complaint with the Commission, with service
upon the alleged violator and the miner, applicant
for employment, or representative of miners,
alleging such discrimination or interference and
propose an order granting appropriate relief. The
Commission shall afford an opportunity for a
hearing Cin accordance with section 554 of title 5,
United States Code, but without regard to
subsection (a)(3) of such section} and thereafter
shall issue an order, based upon findings of fact,
affirming, modifying, or vacating the Secretary's
proposed order, or directing order appropriate
relief. Such order shall become final 30 days

oe

615

On July 15 1985, Monterey Coal implemented the
policy of Mandatory Metatarsal footgear, to cut
down on foot injuries in the mine. The Company
provided us with the first pair of boots, but I
have been having problems with the fit of the boot
I chose from the very limited selection they
offered. The women were offered 4 styles while the
men were offered between 12 to 20 styles. Monterey
says if the shoes we were provided do not fit, we
must find ones that do, dictating also the type of
metatarsal we are allowed to wear.
(no clip on
type) I feel if Monterey makes this requirement,
then the expense of providing a sufficient
selection of boots that are fitted properly and
comfortably should fall on them.
If this is not
possible or practical to provide, the rule should
be revoked for everyone. The boots I had to wear
caused blisters and severe feet and leg cramps.
They hindered my ability to walk and were a safety
hazard. Also the cramps in my feet and legs
stopped me from getting adequate rest. After··
wearing their boots two days, I went to the safety
department and tried to get some temporary approved
clip on type because I could hardly walk. Only
after having to leave the mine early in my shift on
July 19, 1985, and seeking medical treatment from
my doctor, then Monterey allowed me the clip on
metatarsals. Monterey refuses to acknowledge this
as a work related injury even though they required
me to wear their boots or the alternative of not
work.
cont'd fn.2
after its issuance. The Commission shall have
authority in such proceedings to require a person
committing a violation of this subsection to take
such affirmative action to abate the violation as
the Commission deems appropriate, including, but
not limited to, the rehiring or reinstatement of
the miner to his former position with back pay and
interest. The complaining miner, applicant, or
representative of miners may present additional
evidence on his own behalf during any hearing held
pursuant to this paragraph.

616

In a letter apparently accompanying the above Complaint
to MSHA Ms. Price further stated as follows:
I hereby file a complaint of 105(c)(2)
discrimination by my employer in retaliation for my
safety and health efforts for myself and other
employees. My actions occurred on 7-19-1985 at
approximately 2:30 AM. I could no longer tolerate
the pain in my legs and feet caused by the now
mandatory metatarsal safety boots I am now required
to wear by Monterey Coal Company. They do not fit
properly and comfortably, and are a safety hazard
because they hinder my ability to walk comfortably
and would prevent a safe and expedient exit from
the mine, should it become necessary because of an
emergency at the mine. Leg & foot cramps are a
hinderance to my getting adequate and essential
rest. The company actions of discrimination
occurred on July 15, 1985, by requiring all workers
to wear metatarsal protection then dictating what
type of metatarsal we are allowed to wear, while
refusing to permit an approved add on type of
metatarsal, without furnishing adequate and proper
fit for all workers. The person responsible for
the company action is Gordon Roberts,
superintendent of the *2 Mine. Witnesses with
similar problems are listed below.
Ms. Price subsequently, on August 26, 1985, submitted an
additional statement to MSHA further expanding on her
Complaint. The statement reads as follows:
On Monday, August 12, 1985, I received my second
pair of work boots ~ith metatarsal guards from
Monterey. These were replacement boots sent rrom
Hy-Test because my iirst pair was sent in to them
to check for defects. The first pair was size 7E
and the replacement pair they sent was size 7D. I
can't wear a size 7D because of my wide feet.
I
took then home and wore them at home and tried to
break them in for several days but I couldn't keep
them on my feet for more than an hour. When I went
to on Thursday Ben Chauvin, Mine Manager,

617

questioned me as to where my new boots were and I
told him they were at home and that I was trying to
break them in because they hurt my feet.
I was
wearing the clip-on type metatarsal guards which
had been provided by Monterey to wear until my
boots were sent by Hy-Test. Several other
employees had been given these Hy-Test type to wear
while their boots came in (Special ordered sizes).
Monterey routinely gives out these clip-on type
guards to visitors and inspectors when they come to
the mine. Chauvin then told me that on Monday,
August 19, 1985, I had to turn in the clip-on
guards and be wearing integral metatarsal guard
boots or he would not let me go to work.
On Monday, August 19, 1985, I reported to work
and turn in the clip-on guards but I wore another
set of clip-ons that belonged to me on my boots. I
still could no~ wear the boots provided by Monterey
because they were not the right size for my feet.
Chauvin stopped me prior to entering the mine and
told me that I could not work because I did not
have my boots on, I then leit tne mine.
I returned
on Tuesday, got dressed to go below still wearing
the clip-on guards. I then met with Dave Longe,
Head Mine Manager, and Chauvin and Longe advised me to
turn my new boots in to the workhouse as suggested by a
Hy-Test representative I had talked to if they were not
the right size. Chauvin again told me that I could not
go to work with just the clip-on guards on. I then left
the mine. Longe stated that the two days I missed would
be considered AWOL or unexcused absence days. On
Wednesday, August 21, 1985, I went to work again and met
with D. Longe and Chauvin and was read a letter of
suspension, suspending me until August 26, 1985, because
I had failed to follow Chauvin's directions to wear my
boots with integral metatarsal guards. If I failed to
do so there would be further disciplinary action which
may include suspension with intent to discharge.
I
returned to the mine on Thursday to see if Monterey
would accept the clip-on type guards if they were
permanently attached to my regular work boots. I had
found a cobbler that told me he could attach them to my
boots if I provided the metatarsal guard. After about
1 1/2 hours I was told that Gordon Roberts, Supt., had
decided that the guards would satisfy the company
metatarsal policy with certain stipulations; the altered
metatarsal would overlap the steel toe, the work would

618

have to be done by a certified cobbler and done in a
workmanlike manner, and that it be done by
August 26, 1985. Larry Krupnik, Safety, gave me the
stipulations. I was led to believe that if I did all
this I could return to work on August 26, 1985. However
it will be Chauvin's decision to let me work or not.
I
then took my boots to the cobbler and had the work done.
I feel that I have been discriminated against because I
was not allowed to work on August 19 and 20, and was
then suspended for the 21, 22, and 23.
I did not have
proper boots to wear but I was willing to wear the
clip-on guards on these days until I got boots that I
could wear. Other employees had been allowed to work
with the clip-on types until their boot problems were
resolved. Monterey then changed their position and is
willing to let me work with clip on types if I get them
permanently attached. I am requesting the pay for the
days I was not allowed to work because I could not
comply with Monterey's request to wear integral
metatarsal boots even though I was willing to work with
clip on guards which Monterey accepts for visitors and
inspector to comply with their metatarsal protection
policy.
Subsequently by letter dated December 16, 1985, the
Complainant notified the MSHA attorney then handling her case
that she had achieved a partial remedy to her Complaint.
The letter reads as follows:
After your phone call today, I'm writing to confirm
that Monterey paid me 4 of the 5 days pay I asked
for.
I still feel they owe me the 5th day. The
5th day they still owe me should have been my idle
Friday to work. Eight hours at 14.42 per hours
plus 30 cents per hour shift differential which
totals to $117.76. I would also like any and all
reference due to this policy, concerning any
disciplinary action taken by Monterey, and any
derogatory inferences concerning my performance as
an employee, to be removed from my file.
Thereafter by letter dated January 7, 1986, Ms. Price
waa notified by MSHA as follows:
Your complaint of discrimination under
section 105{c) of the Federal Mine Safety and
Health Act of 1977 has been investigated by a

619

special investigator of the Mine Safety and Health
Administration {MSHA).
A review of the information gathered during the
investigation has been made. On basis of that
review, MSHA has determined that your complaint of
discrimination has been satisfied and that no
further pursuit of the complaint is required.
If you should disagree with MSHA's determination,
you have the right to pursue your action and file a
complaint on your own behalf with the Federal Mine
Safety and Health Review Commission at the
following address:
Federal Mine Safety and Health Review Commission
1730 K Street, N.W.
Washington, D.C. 20006 (202) 653-5629
Section 105{c) provides that you have the right,
within 30 days of this notice to file your own
action with the Commission.
In her Complaint to this Commission pursuant to
Section 105{c){3) of the Act~/
~/Section 105{c){3) provides in part as follows:

Within 90 days of the receipt of a complaint filed
under paragraph (2), the Secretary shall notify, in
writing, the miner, applicant for employment, or
representative of miners of his determination
whether a violation has occurred. If the
Secretary, upon investigation, determines that the
provisions of this subsection have not been
violated, the complainant shall have the right,
within 30 days of notice of the Secretary's
determination, to file an action in his own behalf
before the Commiasion, charging discrimination or
interference in violation of paragraph (1). The
Commission shall afford an opportunity for a
hearing {in accordance with section 554 of title 5,
United States Code, but without regard to
subsection {a){3) of such section), and thereafter
shall issue an order based upon findings of fact
dismissing or sustaining the complainanc's charges

620

Ms. Price stated as follows:
My complaint of discrimination, I do not feel has
been satisfied. I am requesting relief of $117.76
for the idle day of 8-23-85. I have been paid
[sic] for the preceding four days {Mon thru Fri) of
that week in which Monterey refused me the right to
work and then suspended me.
I would also like, for
my relief, any and all reference due to this policy
concerning any disciplinary action taken by
Monterey, and any derogatory inferences concerning
my performance as an employee, to be removed from
my file.
At a subsequent preliminary hearing held in response to
Moterey's Motion for a More Definite Statement and in an
attempt to clarify the nature of the complaint and the relief
sought, Ms. Price stated that she waa seeking as damages, pay
for one eight hour shift for the "idle" day on August 23,
1985, expenses (postage and phone calls) related to the
litigation of her complaint {presumably including expenses
relating to the pursuit of her grievance resulting in the
recovery of four days pay for August 19 - 22, 1985) and ~a
pair of boots that fit".
Based on my best understanding of her somewhat rambling
and ambigious complaints I conclude that in substance
Ms. Price's Complaint of Discrimination as it is now before
me is that she was suspended from work by Monterey because
she in essence ref used to perform work under a work rule that
cont'd fn. 3
and, if the charges are sustained, granting such
relief as it deems appropriate, including, but not
limited to, and order requiring the rehiring or ~
reinstatement of the miner to his former position
with back pay and interest or such remedy as may be
appropriate. Such order shall become final 30 days
after its issuance. Whenever an order is issued
sustaining the complainant's charges under this
subsection a sum equal to the aggregate amount of
all costs and expenses {including attorney's fees)
as determined by the Commission to have been
reasonably incurred by the miner, applicant for
employment or representative of miners for, or in
connection with, the institution and prosecution of
such proceedings shall be assessed against the
person committing such violation .•.•

621

was unhealthful and unsafe as applied to her.4/ It is
undisputed that Monterey refused to allow Ms.-Price to work
on August 19 and 20, 1985, and that she was suspended on
August 21 and August 22, 1985, because of her refusal to wear
intregrated metatarsal work boots which she maintains did not
fit, caused foot injuries and created an unsafe and
unhealthful condition. While Ms. Price also claims she was
denied the opportunity to work an "idle" workday on
August 23, 1985, there is a separate dispute as to whether
she was in any event scheduled to work that day and therefore
entitled in any event to be paid for such work.
Within this framework it is apparent that the legal
analysis applicable to "work refusals" must be applied to
this case. Under that analysis a miner's "work refusal" is
protected under section 105(c) of the Act if the miner has a
good faith, reasonable belief in the existence of a
hazardous condition. Simpson v. FMSHRC, 842 F.2d 453 CD.C.
Cir. 1988); Miller v. FMSHRC, 687 F.2d 1994 (7th Cir. 1982)~
Secretary on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803 (1981).
By way of background, it is not disputed that sometime
before the incident at issue Monterey had conducted studies
of foot injuries leading to the conclusion that its
underground miners should be required to wear protection for
the metatarsus. Monterey was apparently also aware of a
decision by the West Virginia State Board of Coal Mine Safety
and Health that many foot injuries might have been prevented
4/rn her post-hearing brief Ms. Price has alleged other
acts of discrimination. To the extent however that these
allegations were not first preaented to the Secretary under
the procedures set forth in section 105(c)(2) of the Act she
has neither exhausted her administrative remedias nor met a
statutory condition precedent~ The merits of these
allegations are accordingly not properly before me. Moreover
the complaint in this proceeding has never been properly
amended to incorporate these new allegations, the allegations
cannot be considered as having been timely tiled and the
allegations do not in any event comport with the .cequirements
of Commission Rule 42(a), 29 C.F.R. § 2700.42(a}.
In
addition as noted, infra, sha has obtained all of the
remedies requested in her complaint herein except those to
which she is not otherwise entitled.

622

or might have been less severe if the injured person had been
required to wear metatarsal protective boots. Monterey also
concluded that an intregrated metatarsal guard rather than a
temporary clip-on guard was preferable. Studies showed
problems with clip-ons including evidence they tended to come
loose. It also appears that the clip-on type of metatar~al
guards had not passed ANSI standards unlike the integrated
metatarsal type boot.
In implementing its new policy Monterey agreed to pay
for an initial pair of intregrated metatarsal boots for each
miner and contracted with two companies to bring "shoemobiles"
to the mine. The miners were not prohibited from obtaining
their integrated metatarsal boots from other sources but were
told that the company would pay only for the cost of the
initial pair of boots selected from one of these two vendors.
According to Monterey the selection and fit were to be the
employee's responsibility. Both of the selected shoe
companies reported however that they could make any size as a
special order and employees were apparently advised to place
orders with the vendors if a special size was required.
Monterey apparently also anticipated that some miners
might nevertheless be unable to obtain pcoper fitting boots
by the July 15, 1985, deadline when the policy would take
effect. Those who anticipated difficulty locating
appropriate boots were advised to see Safety Supervisor Larry
Krupnick for assistance. A list of miners who were unable to
obtain proper boots due to circumstances beyond their control
was provided to shift managers so that these miners would be
permitted to work with only the temporary clip-ons until they
obtained their shoes. It was Monterey's policy that
ordinarily other miners would not be permitted to start work
without integrated metatarsal protection except for unusual
situations to be dealt with on a case-by-case basis.
Monterey anticipated rigid enforcement of the new policy and
managers were apparently advised that exceptions from the
policy would be closely monitored for abuse.
Ms. Price was one of the listed miners. She advised
Monterey that the boot she had selected from the Hy-Test
company was not in stock and had to be special ordered. She
thereafter reported to work in her new integrated metatarsal
boots on July 16, 1985. It is not disputed that she began
experiencing discomfort with the new boots and complained to
various individuals including her foreman Don Overturf. Ms.
Price maintains that she also complained around that time to

623

an unidentified clerk in ·the Safety Department and
purportedly requested permission to use temporary clip-on
guards so she could alternate wearing her new boots with her
old boots. This person apparently told Ms. Price that he did
not have the authority to allow her to do so.
Ms. Price described her injuries at this time as:
More like a bruise rather than--across the toes
rather than a bubbly blister. I didn't have what I
would call a raised blister until Wednesday
[July 18).
As she continued to work with her new boots the problems
increased. She described the problems as follows:
The marks on the front of the toes became deeper.
And the heels started--they still felt very, very
bruised on the back part of my heel. There was no
[sic] marks on the back part of my heels. It just
hurt inside of my heel. And before the end of the
day I--I was having cramps from below the knee
down, in the calves of my legs, causing cramps in
those. And it just--it's indescribable. (Laughs)
It felt like I had a toothache from the knee down.
It ached inside your muscles from walking. Well,
you walk funny so you don't rub your foot any more
and walk--well, you walk slow so--so your not going
to rub anything else any more to make anything in
your toes hurt. (Laughs) And then you walk funny,
well, it pulls on muscles that you haven't used in
that way for a while and it creates tension in your
muscles and causes them to ache."
(Tr. 486-487)
Price described the condition of her feet from the new
boots after completion of her shift on Tuesday, July 17 as
follows:
"[t)hey were much, much redder and the top layer of
skin on both feet, across the top of the toe was not
blistered with liquid behind it but like the top layer the
skin was loose, like it is chaffed, chapped." CTr. 490).
She then described how she sought relief when she returned
home from work:
Get out the old wash bucket and put your feet in it.
(Laugh~.)
By then I was having very severe cramps
in my arches of my feet that were coming and going.
But my problem, biggest problem, was when you lay

624

down to go to bed and you'd start to relax you'd be
laying flat of [sic] your back and my toes were
curling down with both feet going into a charley
horse.
Maybe not both feet at one time but maybe
my right foot and then later my left foot and maybe
both feet. But this was going on all day. And you
couldn't even sleep because every time you started
to relax your feet went .••• (Laughs.) (Tr. 490)
Other employees were having similar problems with their
new integrated metatarsal boots. Ms. Price recalled
conversing with her foreman Don Overturf about the problems
of another employee who had open blisters on both heels. She
also discussed her own problem with Overtuf f and purportedly
told him as follows:
I thought these boots were pretty silly because
they were seeming to create a bigger safety hazard
by wearing them than they were •••• you know, the
metatarsal was supposed to be an extra safety
factor for us and I wasn't arguing against that
because it would protect the top of your foot. But
to criple-up all the rest of your foot--.
(Tr. 49 3) •
Overturf acknowledged in his testimony that he "had
heard some complaints about her boots a time or two" (Tr.
1358). He recalled that she complained of leg cramps and
"she felt that her shoes were causing her not to be able to
perform her job properly" (Tr. 1359).
Price testified as follows concerning the condition
of her feet after working on July 18.
By then I had small raised portions on the top of
my toes close to the foot, not at the bottom of my
toe. My heels were very painful, very, very tender.
There were no obvious marks on my heels. I didn't
have any blisters or large red heels, nothing like
that.
It was--the visible marks were on my toes
and they were raising the layers of skin to have
small little bubbles, you know, not a big one but
with large red marks in the whole area, pressure
marks like.*** My legs were aching below the knee
on down. It was very, very miserable. And when I
would take my boots off in the locker room, then
the cramps in the arches would get worse. When I

625

would sit down ·~fnd take--like my body weight
pressure off of them, when my feet would relax they
would cramp up. (Tr. 578).
Price also testified that she had trouble sleeping
because of the cramps, had "charley horses" in the arches of
her feet and was awakened 2 or 3 times because of this
(Tr. 578-579).
Price further testified that at the beginning of her
shift on July 19, her feet continued to be "very painful" and
"it was very hard to walk anywhere" (Tr. 582). She again
complained to Overturf that the boots were unsafe because of
the crippling effect (Tr. 583). She nevertheless began
working in her job as a continuous miner operator and rotated
duties as a continuous miner helper keeping the power cable
from being run over. Price testified that during this time
her "feet hurt so bad I also felt sick, I just--I was in
misery" (Tr. 587).
Because of the "aching, the blisters, the very painful
heels that felt very, very bruised" she returned to the shop
area to see Overturf and to arrange for a ride out of the
mine {Tr. 588). She removed her shoes and socks and showed
Overturf her feet. She then left the mine and reported to
the nurse's station where she showed "the blisters, the red
marks, all the pressure rnark.s on the top of my toes" to the
nurse on duty (Tr. 592). Price maintains that she had three
blisters on each foot located on top of her toes (Tr. 592).
Overturf reported the redness but did not report observing
blisters and, apparently consistent with Monterey's policy
that blisters from ill-fitting clothes were not work related,
classified the condition has non-work-related. On July 20,
1985, Ms. Price visited a doctor who prepared a note
indicating that she should not wear the boots and that she
then had vesicles~/ on her feet.

5/ "Vesicles" are defined as a circumscribed, elevated,
fluid=containing lesion of the skin, 5 mm or less in diameter.
Dorland's Pocket Medical Dictionary, 21st edition, W.B.
Saunders Co.

626

On her return to work on July 22, 1985, Price presented
the doctor's note to Ben Chauvin, the Shift Mine Manager, and
filed a safety grievance under the collective bargaining
agreement. She was given temporary clip-on metatarsal guards
to use with her old boots and a one-week exemption from the
policy.
Price continued to have cramps in her feet and sought
additional medical care on July 24, 1985. She apparently
also sought advice from this specialist concerning how to
find boots meeting the Monterey policy. She filed another
grievance under the collective bargaining agreement on
July 24, 1985, over the company's denial to excuse her shift
and to treat her injury as work-related. The grievance was
settled on July 26, with a written agreement that states as
follows:
The appropriate manufacturing representative shall
be contacted regarding this employee's shoes.
After such contact is made and a determination
given by the manufacturer, the employee shall make
necessary arrangement for providing footwear that
meets management standards for metatarsal shoes.
Ms. Price was also then given an extended exemption and
was allowed to wear temporary clip-ons until her boots were
returned or she obtained new boots. The Hy-Test manufacturer
was contacted and the boots were returned for evaluation.
Hy-Test later told Safety Supervisor Larry Krupnick that it
had not found the boots defective but would nevertheless
replace them with a smaller size at no charge. According to
Krupnick Hy-Test advised Price that she should be sure the
replacement boots fit before she wore theffi in the mine.
Ms. Price received the new boots on August 12, 1985.
She attempted to break them in at home over several days.
She had already tried the same size boot (Size 7-D) at the
shoemobile and found that they cut into her toes. On August
18, 1985, shift manager Chauvin told Price that she would
be expected to report to work with these boots on the next
working day or she would not be allowed co work. Price
purportedly told Chauvin that the replacements were the wrong
size, that they hurt her feet and that she had tried without
success to breax them in. She told him that she planned to
discuss the problem with Hy-Test the next time the shoemobile
was on the premises. Chauvin then apparently told Price that
her "time was up" and that she would have to turn in the
temporary clip-ens the next working day (Monday, August 19,
1985) and comply with the policy.

627

It is not disputed that, in an apparent effort to comply
with the policy, Price then visited the "London Bootery" and
was told that the replacement boot might no longer comply
with Federal regulations governing steel-toe boots if the
steel toe was stretched and that they had no integrated
metatarsal guard boots in her size in stock except other
Hy-Test boots. ·She also inquired if they would attach a
metatarsal to one of the Red-Wing brand boots that she had
been buying for the previous eight years but they apparently
declined for "liability reasons". Price also contacted the
MSHA investigator who was handling her complaint and
purportedly was told that Monterey's threat was so
unreasonable that it would not implemented on August 19.
Price maintains that uniou representatives including an
attorney also agreed with this assessment of the situation.
On August 19, 1985, the Complainant turned in her
company issued clip-ens and reported for work in her old
boots with another pair oi temporary clip-ons. Chauvin
refused to permit her to work in these clip-ons and she was
marked "AWOL". Price explained to Krupnick that the
replacement boots did not fit and that she had tried
everything she could think of to come up with another pair of
boots but had been unsuccessful. When she nevertheless
attempted again to go to work she was refused entry to the
elevator. She then filed another grievance under the
collective bargaining agreement stating that there was "no
reason whatsoever for them to be denying me work, it was
unsafe to require me to wear something that didn't fit my
feet".
It was around this time that Krupnick also told Price
that the company had fulfilled its responsibility by having
furnished her a pair of boots. According to Price she was
told that it was her responsibility to deal with the vendor
directly.
Before reporting to work on the night shift of
August 20, 1985, Price obtained a note from her doctor
indicating that she needed special-made boots to be able to
comply with the policy. This note was given to Monterey the
same day. She also called the Hy-Test shoe company before
reporting to work and was told to return the boots to the
warehouse. She returned the boots and then reported to work
in her old boots with temporary clip-ons. She told Chauvin
that she no longer had the boots and that she had returned
the replacements for the "correct" size at Hy-Test's
direction. She was again denied permission to work and was
suspended for failure to follow orders to wear integrated

628

metatarsal safety boots. She was also warned that failure to
wear the proper shoes the following morning could result in
discharge.
Price apparently continued in her efforts to resolve the
problem when she and Safety Committeemen Burkholder went to
the office of Mine Superintendent Lange. They informed Lange
that Price's doctor had submitted a note stating that she was
not to work in the replacement boots, that at Hy-Test's
direction replacement boots had been turned in for exchange
and that Ms. Price had been unable to locate any integrated
metatarsal boots that fit her feet.
Lange apparently told
Price to retrieve her boots from the warehouse and to wear
them. Before her shift on August 21, Price again called
various shoe stores and confirmed that no store had any other
brands in stock other than the brands already tried. She
determined that any other integrated metatarsal boots would
have to be special ordered taking at least two weeks. She
again reported to work in her old boots with clip-ons on
August 21. She was again denied work and when she and
Burkholder again went to Lange's office to complain, they
were told she was suspended until August 26, 1985. She was
also told to report to work at that time in boots with
integrated metatarsal work shoes.
On the following day, August 22, Richard Morlegan
another employee, reported to Mine Superintendent Roberts
that the boots which the Company had been special-ordered for
him did not fit properly. He asked if he could cut the
integrated metatarsal off the new boots and have it
reintegrated by a cobbler onto another pair of boots that did
fit.
Roberts approved this procedure. Later that same
afternoon Price asked Roberts if she could have a metal
clip-on guard attached to her existing boots by a cobbler.
After conferring with other officials Roberts granted Price's
request. The boot policy was according revised and posted
the following Friday, August 23. Price thereafter returned
to work and apparently has continued to work wearing her old
boots with a metatarsal guard permanently attached.
On August 28, 1985, the union filed a grievance under
the collective bargaining agreement for the days Price was
marlced "AWOL" and suspended and demanded payment for an
"idle" day and for her out-of-pocket expenses. The grievance
was settled by the union for four days pay in return for the
withdrawal of her other demands. The Complainant was not
present at the settlement meeting. She maintains that she

629

did not consent to the settlement and was not even told about
it until several days later. According to Price she was not
compensated for the loss of pay for an "idle" work day on
August 23, for a free pair of integrated metatarsal boots
that fit and for her expenses.
The above narration of evidence is essentially
undisputed and I find it to be credible. Within this
framework I find that the Complainant has met her burden of
proving that her refusal to comply with Monterey's work rule
requiring the wearing of an integrated metatarsal boot on
August 19, 20, 21, and 22, 1985, was a protected work refusal
based on a good faith, reasonable belief that it would have
been hazardous to comply with. The credible evidence
supports a
finding that Ms. Price made good faith and
reasonable efforts to obtain properly fitting integrated
metatarsal boots comporting with Monterey's policy prior to
August 19, 1985, and continued with such efforts through
August 22, 1985. Based on her prior experience with ill
fitting boots the month before and her unsuccessful efforts
to break in another pair of boots and obtain properly fitting
boots at the time of her suspension it is also clear that she
then entertained a good faith, reasonable belief that it
would have been hazardous to have worked in ill-filling
boots.
Indeed Monterey does not appear to challenge Ms. Price's
complaint that the boots she had obtained did not fit
properly and caused injuries to her feet. Not only would the
wearing of such boots in itself present a hazard of possible
infection from abrasions and blisters but, as Ms. Price
points out, could present a stumbling hazard and interfere
with the safe evacuation of the underground mine should an
emergency develop. Since it is undisputed that Monterey
refused to allow Ms. Price to work based on her refusal to
wear the integrated metatarsal boots on August 19 through 22,
1985, it is clear that the denial of such work was motivated
solely by her refusal to wear such boots.
It is also apparent from the history of the problem that
Ms. Price had communicated to various company officiais,
including Don Overturf and Ben Chauvin, the hazardous nature
of wearing ill-fitting integrated metatarsal boots. The
"co~nunication" requirement has accordingly been met.
See
Simpson supra.; Secretary on behalf of Dunmire and Estle v.
Northern Coal Co., 4 FMSHRC 126 (1982).

630

Accordingly Ms. Price is entitled to lost pay for the
period she was denied opportunity to work i.e. four days pay
for August 19 through 22, 1985, as well as those costs
directly related to the prosecution of this claim in the
grievance proceeding below.
She is also entitled to recover
her costs in these proceedings necessary to recover the costs
related to the grievance proceedings.
I do not find however
that Ms. Price is entitled to a company-paid pair of
integrated metatarsal boots. She has of course, consistently
maintained that she cannot find any such boots that fit her.
In any event the Monterey policy was changed at her request
to permit her to wear her old boots with a professionally
attached metatarsal guard. Ms. Price then elected this
alternative thereby waiving any claim to the company paid
integrated metatarsal boots.
Ms. Price also makes the bald assertion that she is
entitled to one day "idle" day pay for August 23, 1985. I do
not however find that she has sustained her burden of proving
that she would have been entitled to such pay in any event.
Indeed the Complainant's own evidence through the testimony
of the union local president Jim Kimball, is that she was not
entitled to "idle" day pay on August 23rd (Tr. 732-733).
Another of Complainant's witnesses, union committeeman
Ron Burkholder, also failed to support her claim (Tr.
2468-2469).
ORDER
Based on the foregoing decision I find that the
Complainant is entitled to reimbursement for her initial
costs (alleged to be postage and phone calls) in prosecuting
her grievance leading to her retrieval of four days pay
(August 19, through August 22, 1985) and her subsequent costs
in the instant proceedings to recover those costs. Any
petition for such costs as well as any petition by Respondent
must be filed with the undersigned on or before May 1, 1989.
The parties are directed to file any response-to such
petitionCs) on or before May 12, 1989. Monterey Coal Company
is further directed to delete from its records any reference
to disciplinary action taken against Ms. Price for her
refusal to wear integrated metatarsal boots in August 1985.

631

Monterey Coal Company has also alleged "nonfeasance and
malfeasance" by Complainant's trial counsel. Any such
allegations must be directed to the Commission under its
Rule 80, 29 C.F.R. § 2700.80. This decision is not a final
disposition of these proceedings and no final disposition can
be made until the issue of costs is determined.

·\.

~~/ _'C\f'w~
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.

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i

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i

it

i

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~

qary Mklick ~\
Adminis.trative \Law Judge
( 703) ·7J6-6261

l

Distribution:
Michael J. Hoare, Esq., 314 North Broadway, St. Louis, MO
63120 (Certified Mail)
Thomas c. Means, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue., NW, Washington, DC 20004-2505 (Certified Mail)
nt

632

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

22041

APR 14 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. SE 88-87-M
A.C. No. 31-00064-05515
Belgrade Quarry

MARTIN MARIETTA AGGREGATES,
Respondent

Docket No. SE 88-97-M
A.C. No. 31-00048-05511
New Bern Quarry
DECISION

Appearances:

Before:

Michael K. Hagan, Esq~, Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia, for
Petitioner (Secretary); w. Scott Hunt, Safety
Engineer, Martin Marietta Aggregates, Rocky Point,
North Carolina, for Respondent (Martin Marietta).

Judge Broderick

STATEMENT OF THE CASE
Each docket involves a single citation charging a violation
of 30 C.F.R. § 56.16006 because stored oxygen and acetylene tanks
were not provided with covers over the valves. The first
citation involved tanks at Respondent's Belgrade Quarry, the
second involved tanks at the New Bern Quarry. Respondent denies
that it violated the standard, and asserts that the tanks were
not stored, but were in use. The cases were consolidated for the
purposes of hearing and decision. Pursuant to notice, they were
heard on March 14, 1989, in Jacksonville, North Carolina.
Inspector Ronald D. Lilly testified on ~half of the Secretary;
William Fennell and Lynwood Yates testified on behalf of Martin
Marietta. At the conclusion of the hearing, each party orally
argued its position on the record, and waived its right to file a
post hearing brief. I have reviewed the entire record and
considered the contentions of the parties, and make the following
decision.

633

FINDINGS OF FACT
Respondent Martin Marietta Aggregates is the owner and
operator of aggregate mines in Onslow County and Craven County,
North Carolina, known as the Belgrade Quarry and the New Bern
Quarry. The mines produce stone which enters interstate commerce.
There is no evidence in the record as to the size of the
operator or either of the mines. The Belgrade Quarry has a
history of ten violations during the 24 month period prior to the
violation at issue here. The New Bern Quarry has a history of
six violations during the 24 month period prior to the violation
charged in these proceedings. The history is not such that
penalties otherwise appropriate should be increased because of
it.
CITATION 2859521 BELGRADE QUARRY
On June 26, 1988, an oxygen and an acetylene gas cylinder
were located in the shop area of the Belgrade Quarry. They were
located under a tin-roofed canopy and were securely chained to
the steel leg of the canopy. The valves were turned off; the
regulators and hoses were attached, and the valves were not
covered. No workers were in the immediate area; a mechanic was
seen in a truck across a small creek. Ronald Lilly issued a
citation alleging a violation of 30 C.F.R. § 56.16006. At the
time the citation was issued Cll:OO a.m.), the Inspector did not
observe any apparent tasks to be performed with the gas cylinders.
The violation was abated and the citation terminated the
following day, when Martin Marietta had placed the original
covers on the cylinders. Later Martin Marietta constructed metal
boxes over the top of the cylinders; the inspector considered the
metal boxes as compliance with the requirement of a cover on gas
cylinder valves even if the original covers were not in place.
CITATION 2859530 NEW BERN QUARRY
On July 6, 1988, an oxygen and an acetylene gas cylinder
were standing upright at the shop of the New Bern Quarry. They
were attached to the leg of the shop. The regulators and hoses
were attached but the valves were not covered. There was no
equipment in the shop. A mechanic was present in the shop, but
there were no apparent tasks to be performed with the cylinders.
The mechanic told the inspector that the cylinders "were used •••
mostly every day." Inspector Lilly issued a citation for a
violation of 30 C.F.R. § 56.16006. The violation was abated and
the citation terminated the following day when the tanks were
placed in a metal cage.

634

REGULATION
30 C.F.R. § 56.16006 provides:
Valves on compressed gas cylinders shall be protected
by covers when being transported or stored, and by a
safe location when the cylinders are in use.
ISSUES
1. Whether the cylinders at the Belgrade Quarry were stored
or in use when the subject citation was issued?
2. Whether the cylinders at the New Bern Quarry were stored
or in use when the subject citation was issued?
3. If violations are established, what are the appropriate
penalties?
CONCLUSIONS OF LAW
Respondent is subject to the provisions of the Mine Safety
Act in the operation of its Belgrade and New Bern Quarries. I
have jurisdiction over the parties and subject matter of these
proceedings.
The crucial issue on which the parties disagree in this case
is whether the cited compressed gas cylinders were "being stored"
and thus required to have their valves protected by covers, or
were "in use" and thus merely required to be protected by a safe
location. It is not disputed that the gauges and hoses were
attached, and therefore the cylinders were available for use,
when the citations were issued. Neither is it disputed that the
cylinders were not actually being operated at the time.
Respondent argues that the cylinders are in use whenever the
regulators, gauges and hoses are attached. Therefore, they are
in use throughout the working day even between shifts. The
Secretary takes the position that if the cylinders are not
actually being used, and there are no apparent "tasks to be
performed," i.e., there is no equipment in the area to be
repaired or otherwise worked on, the cylinders are being stored.
In the case of Secretary v. Phelps Dodge Corporation,
6 FMSHRC 1930 (1984), Chief Judge Merlin concluded that gas
cylinders which had not been used for two hours or more were
"being stored temporarily or semi-permanently." He upheld a
citation alleging a violation of 30 C.F.R. § 55.16-6.
Judge Merlin relied in part on the Commission decision in FMC
Corporation, 6 FMSHRC 1566 (1984) in which the temporary
placement of explosives in a supply yard for more than an hour,

635

and some-for more than six hours was found to constitute storage.
The term storage, the Commission held, "is sufficiently broad to
include short-term, long-term and semi-permanent storage ••• "
The standard in § 56.16006 has two facets: Cl> valves on gas
cylinders shall be covered when being transported or stored; (2)
the cylinders shall be in a safe location when in use. By a
separate standard, namely § 56.16005, compressed gas cylinders
are required to be secured in a safe manner.
In the Belgrade Quarry, there was no equipment at the site
to be worked on, and there was no mechanic or other worker at the
site to operate the gas cylinders. Full time welders, however,
were employed at the quarry. Part of the time they worked with
the cylinders involved here, and part of the time on welder
trucks. There is no evidence in the record as to when the gas
cylinders involved here were last used, or when they might next
be used. The quarry is in operation from 7:00 a.m. to 5:00 p.m.
The Martin Marietta official to whom the citation was served did
not testify.
I conclude that the evidence clearly establishes
that the cylinders were not in use, but were in temporary storage
under the Com.~ission's definition of the term. Therefore,
failure to cover the valves constituted a violation of the
standard.
The facts surrounding the New Bern Quarry cylinders differ
somewhat: the New Bern Quarry operated "[m]ost of the time
around ••• the clock," (Tr. 73-74), ten hours on production and
fourteen on a maintenance shift. At the New Bern Quarry a
mechanic was present in the shop area when the citation was
issued. He was not called to testify. The Plant Manager
testified that the tanks (cylinders) were "used all during the
day."
(Tr. 61> However, he also stated that he could not say
whether they were used on the day the citation was issued, "but
there's very seldom a day goes by when it's not used off and on
during the day."
(Tr. 67) Nor could he say whether they had
been used the previous day, or how often they are used. Although
the question is closer with respect to the New Bern Quarry than
with respect to Belgrade, I conclude that the cylinders were not
in use when the citation was issued but were in temporary storage.
Therefore, failure to cover the valves constituted a violation of
the standard.
PENALTIES
Each of the violations involved herein was assessed at $20.
The parties have agreed that if violations are established, the
amount assessed is appropriate. The Secretary does not contend
that the violations were serious or the result of more than
moderate negligence. However, I cannot ignore the fact that the

636

violation cited at the New Bern Quarry was the same as that cited
more than a week previously at Belgrade. Therefore, I conclude
that Respondent was guilty of greater negligence in permitting
the violation to occur at New Bern. The violations were not
serious because they were unlikely to cause injury. The
conditions were abated promptly in good faith. The violations
resulted from Respondent's negigence~ the violation at New Bern
resulted from a high degree of negligence. Based on the criteria
in section llO(i) of the Act, I conclude that penalties of $30
and $70 are appropriate for the violations found.
ORDER
Based on the above findings of fact and conclusions of law
Respondent is ORDERED to pay within 30 days of the date of this
decision the following civil penalties.
Citation

Penalty

2859521
2859530

$ 30
70
$100

TOTAL

~ .•. µ3 /,Vd£.1,1~~/£

es A. Broderick
Administrative Law Judge
Distribution:
Michael K. Hagan, Esq., U.S. Department of Labor, Office of the
Solicitor, 1371 Peachtree St., N.W., Atlanta, GA 30367 (Certified
Mail)
Mr. w. Scott Hunt, Safety Engineer, Martin Marietta Aggregates,
P.O. Box 347, Rocky Point, NC 28457 (Certified Mail)
slk

637

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

22041

APR 14 1989
HERBERT M. KING,
Complainant

v.
SHAMROCK COAL COMPANY,
Respondent

DISCRIMINATION PROCEEDING

.
..

Docket No. KENT 88-179-D
MSHA Case No. BARB CD 88-27

:

No. 10 Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

The parties have moved for approval of a settlement and
a dismissal of this case. I have considered the
representations and documentation submitted and I conclude
that the proffered settlement is consistent ~ith the purposes
of the Act.
ORDER
WHEREFORE IT IS ORDERED that the motion for approval of
settlement is GRANTED and this proceeding is DISMISSED.

~ ':l__.~

William F~ ~
Administrative Law Judge

Distribution:
Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified
Mail)
Neville Smith, Esq., Smith and Smith, 110 Lawyer Street,
Manchester, KY 40962 (Certified Mail)
iz

638

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

APR 14 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

:

.
.
.:
.

v.
SHAMROCK COAL COMPANY,
Respondent

Docket No. KENT 88-11
A.C. No. 15-16109-03501
Greenwood No. 12 Mine

DECISION
Appearances:

Anne T. Knauff, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, TN, for
Petition;
Neville Smith, Esq., Smith & Smith, Manchester,
KY, for Respondent;

Before:

Judge Fauver

This civil penalty proceeding was brought by the
Secretary of Labor under § llO(a) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seq.
Based upon the hearing evidence and the record as a
whole, I find that a preponderance of the substantial,
reliable, and probative evidence establishes the following:
FINDINGS OF FACT
1. Shamrock Coal Company's Greenwood #11 and #12 Mines,
located in MSHA's District 7, are physically separate,
underground coal mines. They are one mile apart, and access
into the mines is gained through separate entries. There are
no innerconnections between the mines and one cannot travel
underground from one mine to the other. The mines have separate
MSHA identification numbers.
2. Before 1985, Shamrock had operated a different mine
with several sections that were five or six miles apart,
under one MSHA identification number. Under the policy in
force in District 7 at that time, one set of mine plans would
suffice for the entire mine.

639

3. Since 1985, however, MSHA District 7 has required a.
separate mine identification and separate mine plans for each
physically separate and distinct mine.
4. On May 13, 1987, Gordon Couch, Safety Director of
Shamrock, submitted one set of plans seeking to cover Mines
#11 and #12 as one mine, called the "Clinton Mine." The
plans called for Mines #11 and #12 to be identified as
sections 001 and 002 of the Clinton Mine. H. R. Boston,
an MSHA Supervisory inspector, advised Shamrock's
representative that the proposed "Sections 001 and 002 would
have.to be treated as two separate mines" (Tr. 50).
5. About the same date, May 13, 1987, Jimmy Sams, an
engineering assistant in Shamrock's Manchester office,
advised Mr. Couch that MSHA required two separate ventilation
plan& for Mines #11 and #12.
6. · Also on May 13, 1987, John Pyles, an MSHA staff
assistant in District 7, advised Mr. Couch that two separate
sets of plans .were required for Mines #11 and #12.
7. Respondent started developing the Mine #11 coalbed
in late June, 1987, with approved plans for that mine. It
started developing the coalbed in Mine #12 during the first
or second week of July, 1987, without approved plans for Mine
#12.
8. On July 23, 1987, MSHA received an undated legal
identity form from Shamrock for Mine #12.
9. On July 27, 1987, Inspector Elmer G. Keen inspected
Mine #12 and found that Shamrock was developing the coalbed
without approved mine plans. The approved plans for Mine #11
did not cover Mine #12 either as a section of Mine #11 or as
a separate mine.
10. At 11:00 a.m. (first shift) on July 27, 1987,
Inspector Keen issued Citation 2797706 at Mine #12, charging
a violation of 30 c. F. R. § 75.1721, for developing the
coalbed without approved plans for the mine.
11. The inspector terminated the citation on the same
shift on July 27, 1987, based upon the company's
representations that the miners would be pulled from the
mine, production would stop and would not resume until the
required plans for Mine #12 were submitted and approved.
12. Shamrock employees left Mine #12 on July 27, 1987,
as observed by Inspector Keen, but they stayed out only for

640

the remainder of the first shift.
operations that night.

The mine resumed

13. A few days later, on July 30, 1987, MSHA Inspector
Don McDaniel discovered that Mine #12 was still operating
without approved plans and issued Citation 3004642, charging
a violation of 30 C.F.R. § 75.1721Ca), which states in
relevant part: "[T]he operator shall not develop any part of
the coalbed in such mine unless and until all preliminary
plans have been approved." The required preliminary plans
are identified in subsection Cb> of that section.
14. Inspector McDaniel set an abatement time of one hour
for Respondent to produce approved plans for Mine #12 if they
existed. Inspector McDaniel decided that if Shamrock had the
plans, one hour was a reasonable time for the plans to be
produced. Respondent's representative, Mr. Hacker,
contacted Elmer "Rick" Couch, the Mine Superintendent. When
Mr. Couch could not produce the plans for Mine #12, he told
Inspector McDaniel, "they just messed up at the (Shamrock)
main office by not submitting them" (Tr. 45). Based on a
failure to abate the violation, Inspector McDaniel issued
Order 3004643 at 11:45 a.m. on July 30, 1987, to stop coal
production until all required preliminary plans were approved
for Mine #12.
15. On July 31, 1987, MSHA approved the Mine #12 program
for searching miners for smoking materials required by 30
C.F.R. 75.172l(b)(9). On August 3, 1987, MSHA approved the
Mine #12 roof control and training plans required by 30
C.F.R. § 75.1721Cb)(6) and (c)(l) and (2), respectively.
These were the last of the plans required by 30 C.F.R. §
75.1721.
DISCUSSION WITH FURTHER FINDINGS
Citation 3004642
MSHA advised Respondent on many occasions before July
30, 1987, that it would have to have separate approved plans
for Mines #11 and #12 before it could start developing their
coalbeds, under 30 C.F.R. § 1721. On July 27, 1987, an MSHA
inspector had issued a citation because Respondent was
developing the coalbed at Mine #12 without approved plans for
that mine. The inspector could have issued a follow-up §
104(b) withdrawal order on that date, but, instead, he
terminated the citation based upon Respondent's
representations that it was withdrawing the miners and would
not resume development work until all the required plans were
submitted and approved for Mine #12. Respondent did not

641

abide by that agreement, but later resumed mining without the
approved plans.
The new violation was discovered on July 30, 1987, when
another inspector found that Respondent was still mining
without approved plans. He therefore issued the citation and
order that are the subject of this proceeding.
I find that Respondent violated 30 C.F.R. § 172l(a) on
July 30, 1987, as alleged in Citation 3004642, and that this
violation was due to gross negligence on the part of the
operator.
I also find that this violation was "significant and
substantial" within.the meaning of§ 104 of the Act. The
plans required by § 1721 are crucial to the safety and health
protection of miners.
Considering all of the criteria for a civil penalty in
of the Act, I assess a civil penalty of $500 for the
above violation.
§ llOCi)

Order 3004643
The Secretary charges a separate violation of
§ 75.172l(a) based upon Order 30fr4643, which alleges that
"approved plans could not be provided at the mine site" (Jt.
Exh. 4). That section does not state that the required plans
must be available at the mine site. It does not imply such a
duty with sufficient clarity to hold an operator liable for a
civil penalty for a separate violation of§ 172l(a). The
focus of § 172l(a) is the duty to have "all preliminary plans
• • • approved" before the operator begins to develop the
coalbed. Although some of the plans may be required by other
sections of Title 30, C.F.R., to be available at the mine,
§ 1721Ca) does not in itself impose such a duty.
Order 3004643 therefore does not support a charge of
violating § 172l(a) by failure to have the required plans
available at the mine site. The order, nonetheless, is a
valid exercise of the Secretary's authority under§ 104(b) of
the Act because the violation cited in Citation 3004642 had
not been abated in the time allowed.
CONCLUSIONS OF LAW
1.

The judge has jurisdiction over this proceeding.

2. Respondent violated 30 C.F.R. § 172l(a) as charged
in Citation 3004642.

642

3. The allegation in Order 3004643 that "appro~ed plarts
c6uld not be provided at the mine site" does not state a
violation of 30 C.F.R. § 172l(a), but the order is valid as
an exercise of the Secretary's authority under § 104(b) of
the Act.
ORDER
WHEREFORE IT IS ORDERED that:
1.

Citation 3004642 and Order 3004643 are AFFIRMED.

2. Respondent shall pay a civil penalty of $500 within
30 days of this Decision for the violation of 30 C.F.R. §
1721 (a) alleged in Citation 3004642 and found above.
3. The Secretary's petition for an additional civil
penalty for a violation of 30 C.F.R. § 172l(a) based upon
Order 3004643 is DISMISSED.

~hi~~~
~am Fauver
Administrative Law Judge
Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215
Neville Smith, Esq., Smith & Smith, 110 Lawyer Street,
Manchester, KY 40962
iz

643

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

22041

APR 171989
ROBERT YOUNG,

DISCRIMINATION PROCEEDING

:

Complainant

v.
LEHIGH PORTLAND CEMENT
COMPANY,
Respondent

..

Docket No. YORK 88-9-DM
MD 88-05

..

Cement Plant and Quarry

DECISION
Appearances:

Before:

Dennis B. Schlenker, Esq., and Zachary Wellman,
Esq., Albany, NY, for Complainant~
Christopher s. Flanagan, Esq., for Respondent.

Judge Fauver

This proceeding was brought by Robert Young under §
105(c) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et seq., alleging a discriminatory discharge.
Respondent contends Mr. Young was discharged for
insubordination and not for any activity protected by §
105(c).
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of
Fact and additional findings in the Discussion that follows.
FINDINGS OF FACT
1. Based upon the parties' stipulated facts (Jt. Exh.
1), the following facts are incorporated as findings of fact:
a. Complainant, Robert Young, was hired by Lehigh
Portland Cement Company on August 10, 1978, and discharged on
October 2, 1987, by John Jones, Plant Manager of Lehigh
Portland Cement Company's plant and quarry in Cementon, New
York.
b. At the time of his discharge, Complainant was a yard
foreman.

644

c. Complainant was directed by Ed Moran, his
supervisor, to issue a verbal warning to B. Buley, brakeman,
following a locomotive accident on September 29, 1987.
d.
Complainant was also directed by John Jones to issue
a verbal warning to B. Buley, arising from the same incident.
e. Complainant refused to issue a verbal warning to Mr.
Buley despite the direction of Messrs. Moran and Jones.
f.
Complainant's job responsibility included the
supervision of those employees performing the tasks of
locomotive operator and brakeman.
2. Respondent's letter of termination, October 2, 1987,
from the plant manager, John J. Jones, to Complainant stated:
Your employment with Lehigh Portland Cement
Company is terminated as of October 2, 1987 due
to your insubordination when you refused to
follow my specific instructions regarding an
employee's disciplinary matter on September
30, 19 87.
3. The employee disciplinary matter involved a railroad
collision and derailment at Respondent's cement plant. A
locomotive was pushing a string of cars when the cars
collided with a line of standing railroad cars at a switching
junction, resulting in a derailment and damage to two
railroad c~rs. The cause of the accident was an error by the
brakeman, Bruce Buley, who failed to position himself
properly to observe the movement of the front of the train
when he signaled the engineer to move the train forward.
4. Mr. Buley was· near the mid-point of the train when
he signaled the locomotive operator to move the train forward.
He could not see the track ahead when he signaled the
engineer, and he admitted to Mr. Jones that he did not
position himself properly to observe the movement of the
train, and that he had taken a short cut in performing his
brakeman duties. Mr. Buley also acknowledged at the hearing
that the purpose of walking the cars is to make sure they fit
on the track and do not hit anything, and that had he
followed the procedure of walking the cars, the collision and
derailment would not have occurred.
5. By custom and practice, and the exercise of ordinary
care, the brakeman is required to be in the lead car or
alongside the front of the train when the train is being
moved forward, so he can see the track ahead. After the

645

accident, Complainant orally reprimanded Mr. Buley because he
had not been in the proper position to observe the movement
of the train at the time of the accident.

6. Mr. Jones, the plant manager, personally
investigated the train accident before he discharged the
Complainant. He also consulted and sought the approval of
his superior at corporate headquarters before discharging
Complainant. The action of discharging a foreman for
insubordination was not without precedent~ Mr. Jones had
terminated Andrew Jasiewski, process foreman, in 1985, for
refusing to come to work in time to relieve another
supervisor.
7. On September 30, 1987, 1/ Complainant was instructed
by Ed Moran, his supervisor, to Issue a verbal warning to B.
Buley, brakeman, following the locomotive accident on the
previous day. Mr. Jones also directed Complainant to issue a
verbal warning to B. Buley on September 30, 1987.
8. A "verbal warning" as used by Respondent is an oral
warning that is recorded in the employee's file.
An example
is the verbal warning given to Mr. Buley by supervisor Moran
on September 30, 1987 (after Complainant refused to give such
a warning), and entered in Mr. Buley's file as a "Record of
Employee Verbal Warning" (Jt. Exh. 2). The verbal warning
was for improper work performance, not misconduct, and
cautioned Mr. Buley in the future to make sure that he walked
the cars while moving trains in the yard. A verbai warning
is not designed to be punitive, but is viewed by Reppondent
as a training tool, used to modify and correct improper work
performance. The first official step of Respondent's
progressive disciplinary program is a written warning. A
verbal warning may support the later imposition of a written
warning for a repetition of the original improper
performance, but it is not intended to have any punitive
impact per se.
9. Complainant refused to issue a verbal warning to Mr.
Buley despite the direction of his supervisors Moran and
Jones. Complainant's stated reasons f6~ his refusal to issue
a verbal warning to Mr. Buley were the absence of an
established disciplinary policy for safety incidents and the

1/ The September 30 date cor~ects a conflicting date in the
Iestimony of Mr. Jones and in Stipulated Facts #3 and #4 in
Jt. Exh. 1. I find that a preponderance of the evidence
shows the correct date was September 30, 1987.

646

fact that the employee or his union had previously requested
a written job safety analysis for the brakeman position and
it had not been made as of September 29, 1987.
DISCUSSION WITH FURTHER FINDINGS
In order to establish a prima facie case of
discrimination under§ 105Cc)(l) 1/ of the Act, a miner has
the burden of proving that Cl) he-engaged in a protected
activity, and (2) an adverse action against him was motivated
in any part by the protected activity.
In order to rebut a
prima facie case an operator must show that no protected
activity occurred or that the adverse action was in no part
motivated by protected activity. If the operator cannot
rebut the prima facie case in this manner, it may
nevertheless affirmatively defend by proving that Cl> it was
also motivated by the miner's unprotected activity and (2) it
would have taken the adverse action in any event for the
unprotected activity alone. The operator bears the burden of
proof with regard to the affirmative defense; the ultimate
burden of persuasion that discrimination has in fact occurred
does not shift from the miner. Secretary on behalf of
Robinette v. United Castle Co., 3 FMSHRC 803 (1981).

1/ Section 105Cc)(l) provides: "No person shall discharge or
Tn any manner discriminate against or cause to be discharged
or cause discrimination against or otherwise interfere with
the exercise of the statutory rights of any miner,
representative of miners or applicant for employment in any
coal or other mine subject to this Act because such miner,
representative of miners or applicant for employment has
filed or made a complaint under or related to this Act,
including a complaint notifying the operator or the
operator's agent, or the representative of the miners at the
coal or other mine of an alleged danger or safety or health
violation in a coal or other mine, or because such miner,
representative of miners or applicant for employment is the
subject of medical evaluation and potential transfer under a
standard published pursuant to section 101 or because such
miner, representative of miners or applicant for employment
has instituted or caused to be instituted any proceeding
under or related to this Act or has testified or is about to
testify in any such proceeding, or because of the exercise by
such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory
right afforded by this Act."

647

Complainant has failed to prove that he was engaged in a
protected activity at the time of the Buley matter, or that
his discharge was motivated in any part by an asserted prior
protected activity.
Complainant was discharged on October 2, 1987, for
insubordination relating to an employee disciplinary matter.
Specifically, he was terminated because he refused to obey a
directive of the plant manager to issue a verbal performance
warning to an employee under his supervision, one Bruce
Buley, following a locomotive accident.
The Buley disciplinary matter involved a railroad
collision and derailment on September 29. After a
thorough investigation of the matter, the plant manager,
Jones, decided that Buley was at fault and directed
Complainant to issue a verbal warning to Buley for improper
job performance.
A verbal warning to Buley would not have involved a
threat of danger to any one, including Complainant, or a
violation of a safety or health standard. Complainant's
refusal to comply with Mr. Jones' order was therefore not
protected as a work refusal under§ 105(c)(l).
Nor was Complainant's expression of concern about the
fairness of a warning to Buley a protected activity under tbe
Act. Complainant may have held sincere reservations about
the fairness of a verbal warning to Buley, and for his own
reasons he may have disagreed in good faith with Jones'
judgment on the matter. However, disagreements of this kind
are not protected by§ 105Cc> of the Act. The plant manager
was justified in interpreting Complainant's refusal as an act
of insubordination that warranted discharge. From his
viewpoint, Complainant's refusal threatened to undermine
management's decision to give safety direction and training
to a brakeman who had just endangered a locomotive engineer,·
a trainee and himself and caused substantial property damage
in an avoidable train collision and derailment. The facts do
not point to a discriminatory motive. Indeed, the verbal
warning Jones directed Complainant to give to Buley was
essentially the same as the warning Complainant had already
given to Buley. Complainant's opinion that, "I figured what
I gave him [Buley] was enough - - sufficient telling him
about what he should do" (Tr. 206), was simply Complainant's
opinion that Jones' managerial decision was wrong. However,
as stated, manager/subordinate disputes or disagreements of
this kind are not protected activities under§ 105Cc)(l).

648

The prior request for a job safety analysis of the
brakeman position does not support Complainant's claim of
discrimination. It was well within Jones' authority as plant
manager to order a verbal warning of Buley regardless of the
status of a request for a job safety analysis of the brakeman
job. Even if Buley had decided not to walk the cars because
he perceived it dangerous to do so (and I do not find such a
concern was his actual reason for staying at the midpoint of
the train), he would not have been justified in playing
"Russian Roulette" with the safety of the engineer and others
by signaling the engineer to move the train forward when he
(Buley) could not see the track ahead. Jones was therefore
justified as plant manager in deciding to have Complainant
issue a verbal warning to Buley. There has been no showing
that Jones' decision and his enforcement of it were in any
part motivated by discrimination against Complainant.
At the hearing Complainant testified that Jones and
Moran did not give him a direct order to issue a verbal
warning to Buley, and that, had he realized that they meant
to give him such an order, he would have given the verbal
warning to Buley in order to save his job. I do not find
this testimony either convincing or relevant. First, it is
contrary to the parties' stipulation that Moran and Jones
directed Complainant to issue a verbal warning to Buley and
he refused to do so. Also, Jones testified that he gave
Complainant a direct order to issue a verbal warning to
Buley and Complainant refused. I credit Jones' testimony on
this point. Considering the record as a whole, I hold the
parties bound by their factual stipulations. Secondly, even
if Complainant interpreted Moran's and Jones' statements as
mere opinions of management, and not orders, Complainant
assumed the risk of miscalculating Jones' managerial
intention. The risk was not insured by§ 105(c) of the Act.
Complainant has not shown a nexus between his discharge
and any protected activity before the Buley matter. His
activities before September 29, 1987, were not shown to be
particularly safety-active, and the reliable evidence does
not show a prior safety complaint by Complainant that is any
way connected with his discharge.
Finally, I accept management's evidence that Complainant
was discharged solely because of his insubordination on
September 30 1987.

649

CONCLUSIONS OF LAW
l.·

The ~udge has jurisdiction over this proceeding.

2. Complainant has failed to prove a violation of §
lOSCc){l) of the Act.
ORDER
The Complaint is DISMISSED.

~61 "4 _'

.::r--~

~auver

Administrative Law Judge

Distribution:
Zachary Wellman, Esq., and pennis B. Schlenker, Esq., Felt
and Schlenker, 174 Washington Avenue, Albany, NY 12210
(Certified Mail)
Christopher s. Flanagan, Esq., Lehigh Portland Cement
Company, P.O. Box 1882, 718 Hamilton Mall, Allentown, PA
18105-1882 (Certified Mail)
iz

650

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

APR 1 7 J989
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA'rION CMSHA),
Petitioner

v.
B AND D COAL COMPANY,
INCORPORATED,
Respondent

.

Docket No. SE 88-53
A. C. No. 40-02944-03513

:

No. 7 Mine

.
.
DECISION

Appearances:

Mary Sue Ray, Esq., Office of the Solicitor, u. s.
Department of Labor, Nashville, Tennessee, for the
Secretary~

Bruce Anderson, Esq., Mccampbell & Young, Knoxville,
Tennessee, for the Respondent.
Before:

Judge Weisberger

This case is before me upon a petition for assessment of
civil pehalty under Section 105Cd) of the Federal Mine Safety and
Health Act of 1977 (the Act). Pursuant to Notice, this case was
scheduled for hearing on March 29, 1989, in Knoxville, Tennessee.
At the hearing, the Parties entered into settlement discussion
and made a joint motion to approve settlement. A reduction in
penalty from $8,000 to $4,000 is proposed. Based on the representation set forth in the stipulated facts filed on March 29, 1989,
as well as the testimony and documentary evidence admitted on
March 29, 1989, in support of the joint motion, I conclude that
the proffered settlement is appropriate under the criteria set
forth in Section llOCi> of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that Respondent pay a penalty of $4,000 within
30 days of this order.

?~(A_

Avram Weisberger
Administrative Law Judge

651

Distribution:
Mary Sue ~ay, Esq., Office of the Solicitor, u. s. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
Bruce Anderson, Esq., Mccampbell & Young, 2021 Plaza Tower,
P. o. Box 550, Knoxville, TN 37901-0550 (Certified Mail)
dcp

652

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

APR 171989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS

v.

Docket No. WEST 88-193
A.C. No. 05-03455-03558

Docket No. WEST 88-168
A.C. No. 05-03455-03557

ENERGY FUELS COAL, INC.,
Respondent

Southfield Mine
DECISION

Appearances:

S. Lorrie Ray, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Phillip D. Barber, Esq., Welborn, Dufford, Brown,
and Tooley, Denver, Colorado,
for Respondent.

Before:

Judge Cetti
Statement of the Case

This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seg., (MineAct). The Secretary of Labor on behalf of the Mine Safety and
Health Administration, charges the operator of the Southfield
Mine, a coal mine located near Florence, Colorado, with violating
certain mandatory safety standards set forth in Title 30 Code of
Federal Regulations.
Respondent filed a timely answer contesting the existence of
certain alleged violations, their characterization as "significant and substantial", and the amount of the proposed penalties.
After notice to the parties the matter was set for an
evidentiary hearing on the merits at Denver, Colorado on March
16, 1989. When the matter was called for hearing the parties
offered documentary evidence and made motions amending certain
citations and proposed penalties and pleadings. After due
consideration the motions were granted resolving all issues.
Docket No. WEST 88-168
Order/Citation No. 2839897
The Secretary moved to amend Order No. 2839897 from a 107(a)
order to a 104(a) citation. The Citation alleges a violation of

653

30 C.F.R. § 75.604Cb)(c) because three permanent splices in the
trailing cable of the Joy shuttle car were improperly made. The
Secretary's original $400.00 proposed penalty was not modified.
Respondent in turn moved to withdraw its notice of contest and
agreed to pay the Secretary's original proposed $400.00 civil
penalty.
There was no objection to either motion and the motions
were granted resolving all issued with respect to this citation.
Citation No. 2839894
Citation No. 2839894 alleges a "significant and substantial"
104(a) violation of 30 C.F.R. § 75.1725(a).
The citation alleges
that the audible alarm provi.ded for the Joy shuttle car was
inoperative. The Secretary proposed a $74.00 civil penalty. At
the hearing no modification was proposed for the citation or the
proposed penalty. Respondent moved to withdraw its notice of
contest and agreed to pay the Secretary's original proposed civil
penalty of $74.00. There was no objection to the motion. The
motion permitting respondent to withdraw its notice of contest to
the citation and pay the original proposed penalty was granted.
Citation No. 2839895
Citation No. 2839895 alleges a "significant and
substantial"l04Ca) violation of 30 C.F.R. § 75.400. The citation
alleges that oil, grease, and float coal dust was allowed to
accumulate under the lids and in the pump compartments of the LEE
NORSE Miner. The Se~retary proposed a $74.00 civil penalty. Mo
change was proposed in the citation or the proposed penalty.
Respondent moved to withdraw its notice of contest to the
citation and the proposed civil penalty. There was no objection
to the motion. The motion permitting respondent to withdraw its
notice of contest and to pay the Secretary's original proposed
penalty was granted.
Citation No. 2839896
Citation No. 2839896 alleges that two bushings on the
shuttle car were not insulating the cable guide from the frame of
the shuttle car. It was respondent's position that the bushings
were in place, that the bushings did insulate the cable guide
from the frame of the shuttle car and that there was no violation. The operator nevertheless did comply with the inspectors
"judgment call" and replaced the bushings. The Secretary moved
to vacate the citation. There was no objection to the motion.
The motion was granted resolving all issues with respect to this
citation.

654

Docket No. WEST 88-193
Citation No. 2839893
Citation No. 2839893 alleges a 104(d)(l) violation of 30
C.F.R. § 75.400, in that float coal dust allegedly was allowed to
accumulate. The operator did not dispute the occurrence of the
violation but denied that it was aware of the existence of the
condition which it promptly corrected as soon as the operator
became aware of the condition. The inspector simply speculated
that the operator was aware of the condition. The Secretary
moved to amend the 104(d)(l) order to a 104(a) citation and
accordingly modified the $259.00 proposed penalty to $150.00.
There was no objection to the motion. The motion was granted.
Respondent in turn withdrew its notice of contest to the citation
and to the proposed penalty as amended.
The Secretary's counsel stated in support of its motion,
that on review and preparation for the trial it was found that
the negligence was less than "originally believed". Once the
operator discovered the violative condition, it immediately took
action to correct it. Although the operator admitted.the violation, there was no evidence to support the issuance 104(d)(l)
citation rather than a 104(a) citation.
Conclusion
After careful review and consideration of the pleadings, arguments, and the information placed upon the record at the
hearing, I am satisfied that the proposed disposition made at the
hearing is reasonable, appropriate and in the public interest.
The civil penalties are appropriate under the criteria set forth
in section llOCi) of the Mine Act.
DOCKET NO. WEST 88-168
Citation/Order No. 2839897 as modified to a 104(a) citation
and the Secretary's original proposed civil penalty of $400.00
are affirmed.
Citation No. 2839896 and its proposed civil penalty are
vacated.
Citation Nos. 2839895 and 2839894 and the Secretary's
original proposed civil penalty of $74.00 for each of these
violations are affirmed.
DOCKET NO. WEST 88-193
Citation No. 2839893 as modified to a 104(a) citation and
its amended proposed civil penalty of $150.00 are affirmed.

655

ORDER
The respondent, Energy Fuels Coal Inc., is directed to pay
the civil penalties in the amounts shown above in satisfaction of
the citations and orders in question within 30 days of the date
of this decision and order.

Distribution:

s. Lorrie Ray, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Phillip D. Barber, Esq., Welborn, Dufford, Brown.and Tooley, 1700
Broadway, Suite 1100, Denver, CO 80290-1199 (Certified Mail)
/bls

656

FEDERA.. MINE SAFETY AND HEALTH REVIEW ~~MISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

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

APR 2 0 1989

v.
MONITEAU COUNTY COMMISSION,
Respondent

CIVIL PENALTY PROCEEDING

..
.

Docket No. CENT 88-148-M
A.C. No. 23-01971-05502

.
.

Maintenance Shop

.
DECISION

Appearances:

John J. Matthew, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
John T. Kay, Esq., Prosecuting Attorney, Moniteau
County, California, Missouri,
for Respondent.

Before:

Judge Lasher

This proceeding was initiated by the filing of a proposal
for penalty by Petitioner MSHA pursuant to Section 110 of the·
Federal Mine Safety and Health Amendments Act of 1977, 30 u.s.c.
Section 801 et seq. (1977)(herein the Act). Petitioner sought
assessment of a penalty of $20.00 for an alleged violation of 30
C.F.R. Section 50.30 described in Citation No. 3064674 issued on
March 31, 1988 by MSHA Inspector Dulces N. Mesa as follows:
"The operator has failed to file with the appropriate
MSHA off ice a quarterly mine employment report
(Form 7000-2), after having been advised not to by their
legal representative."
30 C.F.R. § 50.30(a) provides:
Ca) Each operator of a mine in which an individual worked
during any day of a calendar quarter shall complete a
MSHA Form 7000-2 in accordance with the instructions and
criteria in § 50.30-1 and submit the original to the
MSHA Health and Safety Analysis Center, P.O. Box 25367,
Denver Federal Center, Denver, Colo. 80225, within 15
days after the end of each calendar quarter. These forms
may be obtained from MSHA Metal and Nonmetallic Mine
Health and Safety Subdistrict Offices and from MSHA Coal

657

Mine Health and Safety Subdistrict Offices. Each operator
shall retain an operator's copy at the mine office nearest
the mine for 5 years after the submission date.
The matter came on for hearing on February 16, 1989 in
Sedalia, Missouri. Thereafter, by motion to dismiss dated April
14, 1989, the Secretary indicated its determination that
Respondent Moniteau County Commission was operating a "borrow
pit" rather than a mine covered under the Mine Act, that borrow
pits are covered by OSHA except in certain circumstances not
present here, that the Citation in question should be vacated,
and these proceedings dismissed.
The motion to dismiss is for all intents and purposes a
withdrawal by MSHA of its prosecution of this matter. Pursuant
to Commission Rule 11 (29 C.F.R. 2700.11) a party may withdraw a
pleading at any stage of a proceeding with the approval of the
Commission or the Judge. In view thereof, and good cause
appearing for the withdrawal of MSHA's proposal herein, the
motion to dismiss is GRANTED, Citation No. 3064674 is VACATED,
and this proceeding is DISMISSED.

/hk~~?If?. ~~~(h~

"'{~hael A. Lasher, Jr.

Administrative Law Judge
Distribution:
Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
John T. Kay, Esq., 405 North High Street, California, MO
(Certified Mail)
/bls

658

65018

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

22041

APR 211989
COMPENSATION PROCEEDING

LOCAL UNION 9909, DISTRICT 31
UNITED MINE.WORKERS OF
AMERICA,
Complainants

Docket No. WEVA 89-65-C

v.

Loveridge No. 22 Mine

CONSOLIDATION COAL COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Fauver

Pursuant to Complainant's request to withdraw its
complaint in the above case, motioned by the United Mine
Workers of America for the above case is DISMISSED.

~~.,,~
William /:;;;er
Administrative Law Judge
Distribution:
Joyce A. Haula, Legal Assistant, UMWA, 900 15th Street, N.W.,
Washington, D.C. 20005 (Certified Mail}
Michael R. Peelish, Esq., Legal Department, Consolidation
Coal Company, 250 w. Main Street, P.O. Box 11430, Lexington,
KY 40575 (Certified Mail}
iz

659

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

22041

APR 2 4 1989

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 88-106-M
A.C. No. 41-02775-05503

v.
Dudley's Pit Mine
LEBLANC'S CONCRETE & MORTAR
SAND COMPANY,
Respondent
DECISION
Appearances:

Brian L. Pudenz, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
the Petitioner;
Dudley J. LeBlanc, Owner, LeBlanc's Concrete &
Mortar Sand Company, Rosenberg, Texas, Pro Se,
for the Respondent.
~- --

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820Ca), seeking civil penalty assessments for 10 alleged
violations of certain mandatory safety standards found in
Part 56, Title 30, Code of Federal Regulations. The respondent filed a timely answer and notice of contest, and a hearing was held in Houston, Texas. The parties waived the filing
of posthearing briefs, but I have considered all of their oral
arguments made on the record during the hearing in my adjudication of this matter.
Issues
The issues presented in this case are (1) whether the
conditions or practices cited by the inspector constitute violations of the cited mandatory safety standards, (2) the appropriate civil penalties to be assessed for the violations,

660

taking into account the statutory civil .penalty criteria found
in section llOCi) of the Act, and (3) whether several of the
violations were in fact "significant and substantial."
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977i
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

Part 56, Title 30, Code of Federal Regulations.

3.

Commission Rules, 29 C.F.R. § 2700.l et seg.

Stipulations
The parties stipulated in pertinent part to the following
(Exhibit ALJ-1):
1. The name of the respondent company is
LeBlanc's Concrete & Mortar Sand Company with a
place of business near Rosenberg, Texas.
2. Jurisdiction is conferred upon the
Federal Mine Safety and Health Review
Commission under the Federal Mine Safety and
Health .Act, 30 u.s.c. § 801 et seq. The
alleged violations took place in or involve a
mine that has products which affect commerce.
3. The name of the mine is Dudley's Pit,
identification number 41-02775. The mine is
located near Richmond, Texas in Fort Bend
County. The size of the coinpany and mine is
7,480 production tons or hours worked per year.
4. The imposition of any penalty in this
case will not affect the respondent's ability
to continue in business.
5. The total number of assessed violations (including single penalties timely paid)
in the preceding twenty-four months is zero.
6. On March 1, 1988, an inspection was
conducted by .James S. 3miser and Joseph P.
Watson (also known as Jim Watson) authorized·

661

representatives of the Mine Safety and Health
Administration.
7. Ten Section 104(a) citations (numbers
03061705 through 03061714) were issued for
violations of 30 C.F.R. § 56.14006, 56.14001,
56.15020, 56.14001, 56.4102, 56.4230(a)(l),
56.46001, 56.14001, and 56.4100Cb) respectively,
on March 1, 1988.
8. All of the citations were abated within
twenty-four (24) hours by the respondent.
Discussion
When the hearing convened, the parties advised me that
the respondent wished to withdraw its contests with respect to
Citation Nos. 3061705 and 3061708 (photographic exhibits P-4
and P-1). The respondent agreed to pay the full amount of the
proposed civil penalty assessments for the violations, and
after considering the request to withdraw the contests as a
proposed settlement pursuant to Commission Rule 30, 29 C.F.R.
§ 2700.30, the request was granted and the settlement was
approved from the bench. My decision in this regard is herein
reaffirmed, and the citations are affirmed as issued.
The remaining citations in issue in this proceeding are
as follows:
Section 104(a) "S&S" Citation No. 3061706, cites a violation of 30 C.F.R. § 56.14001, and the condition or practice
states as follows:
The guard covering main drive shaft and
couplers on dredge was broken, parts removed,
and loose, exposing employee to moving machine
parts, a fall into dredge sump, and a potential
of being drown (sic) in water/oil bein~ held in
bottoin of dredge-.Section 104(a) "S&S" Citation No. 3061707, cites a violation of 30 C.F.R. § 56.15020, and the condition or practice
5tates as follows:
The dredge operator did not ~ear a life
jacket on dredge ~hile on deck and where there
is a danger froin falling into water, the <lr.edge
deck is not £YCotected by handr.:ii ls.

662

Section 104(a) "S&S" Citation No. 3061709, cites a violation of 30 C.F.R. § 56.4102, and the condition or practice
states as follows:
The flammable or combustible liquid spillage and leakage was not removed in a timely
manner or controlled to prevent a fire hazard
on the dredge. The sump of dredge contained a
large amount of oil, diesel fuel, and water
floating under engine, pump, and other equipment which could be ignited to produce a flash
fire and expose operator to fire hazard.
Section 104(a}"S&S" Citation No. 3061710, cites a violation of 30 C.F.R. § 56.4230{a){l), and the cited condition or
practice states as follows:
A fire extinguisher was not provided on
the dredge where a fire or its effects could
i1npede escape f ram self-propelled equipment.
Operator is exposed to fire hazard from diesel
fuel, oils, and grease used on dredge motor.
Section 104(a} "S&S" Citation No. 3061711, cites a violation of 30 C.F.R. § 56.4600(a){l}, and the cited condition or
practice states as follows:
A fire extinguisher was not provided in
the welding area of shop where electric arc and
cutting torch were in use. Electrical circuits
are also in area which could produce a hazard
by the use of a electrical conductive extinguishing agent. A multi-purpose dry chemical
fire extinguisher or other type with at least a
2-A; 10 B:C rating shall be used.
Combustibles
are stored in area of shop which could be
ignited by welding activity.
Section 104(a} non-"S&S" Citation No. 3061713, cites a
violation of 30 C.F.R. § 56.14001, and the cited condition or
practice states as follows:
The V-belt drive of floating fresh water
pu..rnp was not provided with a guard to protect
ingoing pinch points. Gravity reduced due to
location of pump.

663

Section 104(a) non-"S&S" Citation No. 3061712, cites a
violation of 30 C.F.R. § 56.14001, and the cited condition or
practice states as follows:
The V-belt drive on shop air compressor
was not provided with a guard to protect
employees from ingoing pinch points. Gravity
is reduced due to location of drive.
Section 104Ca) "S&S" Citation No. 3061714, cites a violation of 30 C.F.R. § 56.4100(b), and the cited condition or
practice states as follows:
Welding, which produces open flame and
sparks, was in area of shop which also had bulk
oils stored with open caps and hand pumps.
Employee was exposed to fire hazard. Gravity
is increased due to lack of a fire extinguisher
being available at area.
Petitioner's Testimony and Evidence
MSHA Inspector James R. Smiser, testified as to his
experience and training, and he confirmed that he conducted an
inspection at the respondent's mining operation on March 1,
1988, and issued the citations which are in issue in this
proceeding.
Citation No. 3061706
Inspector Smiser stated that he issued this citation
after observing that the mesh grating guard used to guard the
main drive shaft and coupler on the dredge was loose and
uns~cured.
If one were to step on the grating, it would give
and go down under the weight of anyone walking on it.
Mr. Smiser identified exhibit P-2 as a photograph of the mesh
guard in question.
Mr. Smiser confirmed that he made a gravity finding of
"highly likely," and he did so because the dredge deck was wet
and coated with oil, making it slippery, and he belie~ed that
if anyone stepped on the grating it would give way and expose
the individual to the hazard of falling into the exposed
moving drive shaft and coupler.
Mr. Smiser confirmed that he made a negligence finding of
"moderate" because the dredge operator was required to be on
the dredge, and he should have been aware of the readily
observable condition of the loose grating.

664

On cross-examination, Mr. Smiser confirmed that when he
stepped on the loose grating guard, it gave some, but did not
touch the coupler. He also confirmed that he had no knowledge
that the grating had been in that condition for 2 years, and
that his inspection was the first time he had observed the
condition. He stated that he discussed the condition with
superintendent Jim Davis, and agreed that the loose grating
was probably caused by fatigue resulting from a broken angle
iron which helped support the grating.
Citation No.3061707
Inspector Smiser cohf irmed that he issued the citation
after observing that the dredge operator was not wearing a
life jacket while the dredge was in operation. He stated that
the dredge operator walked around the dredge while inspecting
the equipment, and at the time of the inspection the dredge
deck was wet and slippery due to the presence of water and
oil, and the dredge perimeter was not equipped with handrails.
Under these circumstances, he concluded that the violation was
"significant and substantial" because it was reasonable likely
that the dredge operator could drown if he slipped and fell
off the barge without a life jacket.
Mr. Srniser confirmed that he made a negligence finding of
"moderate" because the respondent had been in the dredging
business for years and should have been aware of the requirement for the wearing of a life jacket.
Mr. Smiser st~ted that he spoke with superintendent Jim
Davis who advised him that life jackets are made available to
the dredge operator and that the operator apparently chose not
to take one with him or to wear it at the time of the
inspection.
On cross-examination, Mr • .Srniser stated that he did not
know the dimensions of the dredge and made n·o measurements.
He described the pilot house where the dredge operator is
stationed when he operates the dredge, and estimated that it
was 5 feet wide. He confirmed that he observed no life jacket
on the dredge, and that Mr. Davis obtained one after the
inspection and provided it to the dredge operator. Mr. Smiser
identified photographic exhibitP-3(a) as the dredge in question, and he estimated that it was anchored approximately 100
to 150 yards off shore, but he did not know the depth of the
water at that location. He also identified photographic
exhibit P-3(b) as a photograph of a portion of the edge of the
dredge deck where no handrails were installed.

665

Mr. Smiser stated that if the water was "knee deep," he
would still require the dredge operator to wear a life jacket
because if he slipped or fell overboard and struck his head,
he would still be exposed to a drowning hazard if he was not
wearing a life jacket.
Mr. Smiser stated that in accordance with MSHA's policy,
if the dredge were equipped with protective hand-rails, a life
jacket would not be required. He confirmed that there is no
mandatory standard requiring hand-rails on a dredge, and that
in the absence of hand-rails, there is a presumption that a
dredge operator without a life jacket would be exposed to the
hazard of falling overboard at any given time while walking
around the dredge performing his duties.
Mr. Smiser confirmed that he spoke with the dredge operator and asked him why he was not wearing a life jacket, but
received no response or explanation.
Citation No. 3061709
Mr. Smiser stated that he issued the citation after
observing an accumulation of combustible and flammable oil and
diesel fuel below the dredge engine and sump pump. The liquid
had spilled or leaked from the engine or swnp and it W"as mixed
with water and was floating on the surface beneath the engine.
He identified the material as the "shiny" material shown
behind the batteries and below the engine in photographic
exhibit P-5.
Mr. Smiser confirmed that he made a gravity finding of
"reasonably likely," and considered the violation as significant and substantial because the combustible materials could
have been ignited and caused a "flash fire" from the heat of
the engine. Although the operator's compartment was located
15 to 2 0 feet from the sump and engine area, the absence. of a
life jacket and a fire extinguisher on the dredge, and the
fact that diesel fuel was stored on the dredge, added to the
hazard in that in the event of a fire, the dredge operator
would be unable to safely remove himself from the dredge and
could suffer fatal injuries.
Mr. Smiser confirmed that he made a negligence finding of
"moderate" because the leakage or spillage was ceadily
observable and the respondent should have been aware of the
requirement to timely remove the accumulated materials.

666

On cross-examination, Mr. Smiser stated that he did not
measure the accumulations, but estimated they were 6 to
8 inches deep. He confirmed that he had no knowledge of the
"flash point" of the accu..rnulated oil or fuel, and did not know
how much heat was generated by the engine, or how hot it had
to be in order to ignite the materials or cause a flash fire.
He assumed that oil and fuel, by their-nature, are combustible
and f la:mmable.
Mr. Smiser stated that the su..mp is located approximately
12 to 15 inches below the deck level of the dredge, and he had
no knowledge of the size and type of the dredge engine.
Citation No. 3061710
Mr. Smiser confirmed that he issued the citation after
finding that no fire extinguisher was provided for the dredge
which was the subject of the previous citations. Given the
potential fire hazard presented by the accumulation of
combustible fuel and oil at the dredge engine and sump area,
as described with respect to Citation No. 3061709, and the
fuel stored on board, he believed that it was reasonable
likely that a fire would occur, and if it did, the absence of
a fire extinguisher would not provide a means for extinguishing
the fire, and the lack of a life jacket for use by the dredge
operator would have impeded his escape from the hazard.
Mr. Smiser confirmed that he considered the dredge to be
self-propelled equipment for which a fire extinguisher was
required. Under these circumstances, he concluded that the
violation was significant and substantial.
Mr. Smiser confirmed that he made a negligence finding of
"moderate" and that he did so because superintendent Davis
advised him that a fire extinguisher had previously been provided for the dredge, and that one was obtained and provided
by Mr. Davis after the inspection.
Under these circumstances,
Mr. Smiser concluded that the respondent was aware of the
requirement for a fire extinguisher and that it knew or should
have known about the requirement.
On cross-examination, Mr. Smiser confirmed that he and
Mr. Davis were transported to the dredge by a small boat, but
he had no knowledge as to whether another boat or barge used
to transport fuel and the dredge operator to the dredge was
also tied up and available for the dredge operator at the time
of the inspection. Mr. Smiser stated further that the pilot
house containing the dredge controls had one door.

667

Citation No. 3061711
Mr. Smiser confirmed that he issued the citation after he
found that a multipurpose dry chemical fire extinguisher was
not provided at the shop area where electrical welding work
was being performed on a dredging bucket. He stated that
fluids and oils were being used and stored in the shop, and he
observed three or four 55-gallon drums of oil stored in one
corner of the shop, and one of the drums was equipped with a
hand pump. He estimated that these drums were located approximately 8 to 10 feet from where the welding or cutting was
taken place.
Mr. Smiser confirmed that he made a gravity finding of
"moderate" and considered the violation to be significant and
substantial because it was reasonably likely that an "air arc"
generated by the type of work going on could spray small
·
pieces of hot metal in the shop and ignite the oil and other
fluids which were present in the shop. However, he believed
that in the event of a fire, the workers in the.shop area
could quickly exit the shop.
Mr. Smiser confirmed that he made a negligence finding of
"moderate" because he believed that the respondent knew or
should have known about the requirement for a fire extinguisher
in the shop.
On cross-examination, Mr. Smiser stated that he had no
knowledge of the size of the shop, but estimated that it was
approximately 100 x 200 feet, and he characterized it as
"pretty good size," with an open entrance.
Mr. Smiser confirmed that the welding truck was parked
inside the shop, and the actual welding work was taking place
outside the shop entrance immediately below the shop roof-line
and approximately 4 to 5 feet outside of the shop.
Mr. Smiser stated that he could not reciall the precise
cutting or welding process which was taking place, but believed
that it was an "air-arc" cutting apparatus which used compressed air.
He did not believe that an open flame process
which utilizes acetylene gas or oxygen, or electric welding,
was being used, but confirmed that both of these processes
were available for use. He confirmed that the bucket in question was on the ground.
Mr. Smiser confirmed that the cited standard, section
56.4600(a)(l), requires that a multipurpose dry chemical fire
extinguisher be available when electrical arc or open flame

668

welding or cutting work is being performe~, and that the
intent of the standard is to insure that an appropriate fire
extinguisher be available in the event the kind of welding
taking place creates an electrical hazard.
Citation No. 3061712
Mr. Smiser confirmed that he issued the citation after
finding that the V-belt drive on a compressor located in the
shop was not guarded. He stated that amployees had access to
the area where the compressor was located, .and that tools and
other materials were located and stored in'the area.
Mr. Smiser described the compressor as a "large tank" located
in the corner of the shop, and he stated that the unguarded
belt was mounted on top of the compressor approximately 5 to
5-1/2 feet above the shop floor, and that it was to the rear
of the compressor facing the outside shop wall.
Mr. Smiser stated that he made a gravity finding of
"unlikely" and did not consider the violation to be significant
and substantial because he believed it was unlikely that an
injury would occur due to the location of the unguarded belt.
He did not believe it was likely that an employee would get
caught in the unguarded belt and suffer an injury. He confirmed that the respondent's negligence was low because it was
probably not aware that the belt was required to be guarded.
On cross-examination, Mr. Smiser stated that if someone
delibecately wanted to get into the unguarded belt, they could
do so by reaching behind the compressor. He also believed
that someone could contact the unguarded belt through inattention, but conceded that there was a "slim chance" of anyone
contacting the belt.
Mr. Smiser stated that he did not believe that the cited
belt in question was guarded "by location," and that MSHA's
informal policy recognizes "guarding by violation" only .in
instances where unguarded pinch points are located 7 feet off
the ground.
Citation No. 3061713
Inspector Smiser confirmed that he issued the citation
after finding that the V-belt drive on the fresh water floating pump motor was not provided with a guard to protect the
exposed pinch points.
Ha identified photographic exhibit P-9
as a photograph of the pump in question.
He confirmed that he
made a gravity finding of "unlikely" and did not consider the
violation to be significant and substantial because it was

669

unlikely that an employee would be at the pump location when
it was started up or in operation. Due to the location of the
pwnp, and the fact that the motor was activated from the
plant, he did not believe that it was likely that an employee
would be exposed to a hazard.
On cross-examination, Mr. Smiser stated that the cited
mandatory standard, section 56.14001, requires that a belt
drive "which may be contacted" be guarded. He confirmed that
Mr. Davis advised him that under normal operating circumstances, no one would be on the pump barge.
Citation No. 3061714
Mr. Smiser confirmed that he issued the citation because
the welding taking place in the shop area as previously
described with respect to Citation No. 3061711 was taking
place at the shop area where flammable or combustible oils and
fluids were stored or handled. Mr. Smiser confirmed that
while both citations were issued for the same welding or
cutting work which was being performed on the bucket outside
the shop, Citation No. 3061714, was issued for performing
welding work in an area where open flame welding was taking
place in an area where combustible or flammable oils and
fluids were stored. Performing such work in such an area is
prohibited by the standard.
Mr. Smiser stated that the coil welding which was taking
place produces open flame sparks, and he determined that an
injury was reasonably likely in that in the event of a fire
someone would probably suffer minor burns. For these reasons,
he determined that the violation was significant and
substantial.
Mr. Smiser confirmed that he made a finding of "low"
negligence, and that he did so because Mr. Davis advised him
that he was in the process of moving the stored materials to
another location.
·
~espondent's

Testimony and Evidence

Dudley J. LeBl(!nc, respondent's owner, testified that bis
concrete and sand dredging operation is a very small business,
and that he employs four individuals at his operation. One
person operates the dredge, one operates the plant, one operates the loaders which load the trucks, and one person works
in the office. He further stated that he is open for business
5 days a week, from 7:00 a.m. to 5:00 p.m.

670

Citation No. 3061706
Mr. LeBlanc conceded that the metal grating provided to
guard the dredge drive shaft and couplers was loose and in
need of repair because of a broken angle iron support. However, he pointed out that most of the drive shaft was located
under the grating which was firmly in place as shown by photographic exhibit P-2. He also stated that the machine gear box
which is shown in the photograph is normally in that raised
position. Although the guarding was loose, Mr. LeBlanc stated
that one could walk on it and it would not give or contact the
drive shaft or coupler.
Citation No. 3061707
Mr. LeBlanc stated that he has instructed the dredge operator to wear a life jacket while working on the dredge, and
that he is provided with a jacket. Although he was not present during the inspection, Mr. LeBlanc believe~ that a life
jacket was provided and located in the pilot house located at
the end of the dredge. After ';Tiewing photographic exhibit
P-3Ca), Mr. LeBlanc estimated that the dredge was located 10
to 15 feet from the bank, and was in 4 or 5 feet deep water on
the day of the inspection. However, he confirmed that during
any given day, the dredge moves from one location to another
during the dredging and pumping operation, and that it does
operate in water which is 30 feet deep.
Mr. LeBlanc stated that the dredge was 16 feet wide and
24 feet long, with two 4 x 20 foot floats.
The dredge contains a pilot house, an 8 x 10 foot pump, four winches, and a
Detroit engine and hydraulic pump. Diesel fuel is used to
drive the dredge, and there is a 900 gallbn fuel tank at the
rear of the dredge.
Citation No. 3061709
Mr. LeBlanc stated that the engine and ·sump leakage in
question was not unusual in that the packing a.round the sump
drive shaft causes leakage. He confirmed that the spillage
and leakage cannot be emptied into the water, and that it is
periodically removed and taken ashore. He has now devised a
method to automatically pump out the spillage and remove it
from the dredge.
Mr. LeBlanc stated that while diesel fuel is combustible,
its ignition point is so high that o~e could throw a lighted
match on the materials and it will not ignite. He confirilted
that the dredge operator is permitted to smoke while in the

671

pilot house, and that a water can is available in the house
for cigarette butts. The operator is not permitted to smoke
while working on the dredge outside of the pilot house.
Citation No. 3061710
Mr. LeBlanc confirmed that since he was not on the dredge
during the inspection, he did not know whether a fire extinguisher was aboard. He stated that an 8 x 20 foot small barge
used for transporting fuel is always tied up at the dredge,
and it can be used by the dredge operator in an emergency. He
stated that the pilot house has two doors, and it contains the
dredge controls and radio and communications equipment.
Citation No. 3061711
Mr. LeBlanc confirmed that he was not present during the
inspection and has no knowiedge as to whether a fire extinguisher was provided for the shop area. However, he did
observe a c.o. five extinguisher in the shop in the evening
after the inspection. He confirmed that the welding operation
was taking place outside of the shop and that the bucket which
was being serviced was on the ground. Since it was on the
ground, he did not believe that any sparks or arcs would reach
the oil stored inside the shop.
In the event welding was
taking place above the stored oil drums, he would concede that
arcs and sparks could fall below and onto the oil drums, but
since this was not the case, he did not believe that any
hazard was present.
Citation No. 3061712
Mr. LeBlanc stated that the cited unguarded compressor
belt was at approximate "eye-level" and that the compressor
was mounted on 4 x 4 blocks in the corner of the shop. He
stated that in order to change out the belt located at the
rear of the compressor, one would have to physically move the
compressor in order to gain access to the belt. He stated
that he abated the citation by installing a bar across the
compressor to provide a physical barrier, and that the V-belt
itself was not required to be guarded.
Citation No. 3061713
Mr. LeBlanc stated that under normal operating procedures,
no one is required to be on the barge on which the fresh water
pump was located. The pump motor is activated from shore in
the plant by means of a switch located 200 to 300 feet from the
barge, and that any engine priming is done from the shore some

672

20 to 30 feet away.
He stated that the pump is located on a
6 x 6 foot barge which rests on floats, and that no one is
permitted to be on the barge while the pump is in operation.
He confirmed that someone is on the barge only once a week for
service before dredging is started, but that all of the
electricity is deenergized and the pump is shut down. When
major repairs are required, the pump is physically lifted
ashore by means of a cherry picker.
Citation No. 3061714
Mr. LeBlanc confirmed that the welding work in question
was taking place outside of the shop at the same location and
on the same piece of equipment where Citation No. 3061711 was
issued.
He conceded that the work was being performed with an
acetylene oxygen cutting torch which produced an open flame,
and although he had available a "plasma cutter that you cut
with electricity," it was inoperative.
Findings and Conclusions
Fact of Violations
Citation No. 3061706, 30 C.F.R. § 56.14001
The inspector issued the citation after finding that the
wire mesh grating guard used to guard the dredge drive shaft
and coupler was loose and unsecured. The inspector confirmed
that the respondent's superintendent agreed that the grating
was loose because of fatigue resulting from a broken angle
iron used to support the guard, and .Mr. LeBlanc conceded that
this was the case and that the guard was in need of repair.
Although Mr. LeBlanc believed that most of the drive shaft was
protected and disagreed with the inspector's belief that the
grating would give and 1nove down if someone were to walk on
it, the fact remains that the guard was not securely in place,
and I believe one can reasona'.'.:>ly conclude that through fatigue
and wear, it would have come completely looie ~ver time and
exposed one to a hazard of falling into the moving drive shaft
and coupler.
I conclude and find that a violation has been
established, and the citation IS AFFIRMED.
Citation No. 3061707, 30 C.F.R. § 56.15020
The evidence establishes that the dredge operator was not
wearing a life jacket while the dredge was in operation and
while he was,walking around a slippery deck performing his
duties. The dredge was not provided with any protective
handrails around its perimeter, and in the event the operator

673

fell into the water, which I believe was reasonably likely
given the slippery deck conditions, he could possibly drown.
Although Mr. LeBlanc stated that the dredge was located in 4
or 5 feet of water, he confirmed that on any given day the
dredge moves around and sometimes operates in water 30 feet
deep. Although the respondent's evidence indicates that a
life jacket may have been provided for the dredge operator's
use, the fact remains that he was not wearing it. Under the
circwnstances, I conclude and find that a violation has been
established, and the citation IS AFFIRMED.
Citation No. 3061709, 30 C.F.R. § 56.4102
The inspector issued the citation after observing a combination of oil, diesel fuel, and water floating under the dredge
sump pump and engine located approximately 12 to 15 inches
below the deck level of the dredge. The inspector did not
measure the accumulated materials, but estimated they were 6 to
8 inches deep. The cited section 56.4102, provides that
"flammable or combustible liquid spillage shall be rei.-noved in a
timely manner or controlled to prevent a fire hazard."
30 C.F.R. § 56.2 defines the term "combustible" as
"capable of being ignited and consumed by fire." The term
"flammable" is defined as "capable of being easily ignited and
of burning rapidly." The term "Flash Point" is defined as
"the minimum temperature at which sufficient vapor is released
by a liquid or solid to form a flammable vapor-air mixture at
atmospheric pressure."
Mr. LeBlanc testified that due to the packing around the
shell of the water pump, it is impossible to prevent water
from leaking and mixing with oil and hydraulic fluid which may
be present when the hoses break. He confirmed that any such
spillage is periodically cleaned up and contained within the
dredge, and then taken to shore and disposed of. Although he
conceded that the material may be considered combustible, he
stated that the ignition point is so high tnat it would not
burn even if one were to throw a lighted match on it.
Mr. LeBlanc's testimony in this regard is unrebutted.
The evidence here establishes that the accumulated
materials were a mixture of water, which one may reasonably
assume was leaking from the water pump, and oil and diesel
fuel.
Section 56.4102, requires the removal or control of
"flammable or combustible spillilge.
In my view, in order to
est3.blish a violation, a determination must be made by the
inspector as to whether the accumulations he observed were in
£act combustible or flammable. Given the mixture of water

674

·which was present, and Mr. r... eBlanc' s unrebut ted testimony with
respect to the absence of an ignition point high enough to
ignite the materials in question, I cannot conclude that the
petitioner has presented any credible probative evidence to
establish the combustibility or flammability of the materials
cited by the inspector. Although the inspector was of the
opinion that a "flash fire" could have resulted from the heat
generated by the engine, he conceded that he had no knowledge
as to the flash point of the accumulated oil and fuel, how
much heat was generated by the engine, or whether the engine
was hot enough to generate a flash fire.
Under the circumstances, I conclude and find that the petitioner has failed to
establish that the accumulated materials were in fact combustible or flammable. Accordingly, I conclude and find that a
violation has not been established, and the citation IS
VACATED.
Citation No. 3061710, 30 C.F.R. § 56.4230(a)(l)
The inspector issued the citation after finding that a
fire extinguisher was not provided for the self-propelled
dredge. The cited section 56.4230(a)(l), provides ihat
"whenever a fire or its effects could impede escape from
self-propelled equipment, a fire extinguisher shall be on the
equipment."
The inspector believed that an accumulation of fuel and
oil at the sump pump area presented a potential Eire hazard,
and that in the event of a fire, and in the absence of a fire
extinguisher, there would be no available means to fight the
fire.
The accumulations noted by the inspector were the same
accumulations previously cited in Citation No. 3061709. That
citation was vacated for a lack of any credible evidence to
establish that the accumulations were combustible or flammable.
I find no problem with a safety standard which directly
and clearly requires that a fire extinguisher be available on
a dredge in the event of a fire.
However, 1 do have a problem
with the language of the particular standard cited in this
instance. The standard requires a fire extinguisher only if
it can be shown that "a fire or its effects" could impede an
escape from self-propelled equipment.
I find no evidence in
this case to establish that any fire or its effects could have
impeded the escape of the dredge operator f roin the dredge.
Although the absence of a life jacket may have ef Eectively
impeded his escape, the respondent here has already been
charged with a violation for the failure of the dredge oparator to wear a life jacket. 'l'he intent of the standard is
fire protection, and it is not a life jacket requirement.

675

On the facts of this case, the dredge was located 10 to
15 feet from shore in water 4 to 5 feet deep, and Mr. LeBlanc's
unrebutted credible testimony reflects that a small barge is
always tied up to the dredge for use in any emergency. In the
event of any fire, the dredge operator could readily jump
overboard, or use the barge as a means of leaving the dredge.
Under all of these circumstances, including the lack of any
evidence to establish that a fire, or its effects, would have
impeded the escape of the dredge operator, I conclude and find
a violation has not been established. Accordingly, the citation IS VACATED.
Citation No. 3061711, 30 C.F.R. § 56.4600(a)(lt
In this instance, the respondent is charged with an
alleged violation of mandatory standard 30 C.F.R.
§ 56.4600(a)(l), which provides as follows:
Extinguishing Equipment.
(a) When welding, cutting, soldering,
thawing, or bending-(!) With an electric arc or with an open
flame where an electrically conductive extinguishing agent could create an electrical
hazard, a multipurpose dry-chemical extinguisher
or other. extinguisher with at least a 2-A:lO-B:C
rating shall be at the worksite.

The inspector confirmed that he issued the citation
because a multi-purpose dry chemical fire extinguisher was not
provided at the location where welding work was being performed
on a dredging bucket outside of the shop. The citation states
that an electric arc and cutting torch were in use during the
welding process, that electrical circuits we.re present, and
that these circuits could produce a hazard by the use of an
electrically conductive extinguishing agent.
The inspector testified that electrical welding work was
being performed on the bucket in question, and that he was
concerned that an "air arc" generated by the type of welding
work taking place could have sprayed small pieces of hot metal
into the shop and ignited some oil and othet::' fluids which were
stored in drums inside the shop. In short, the testilriony of
the inspector reflects that he was concerned about a Eire
hazard, rather than an electrical hazard. Although the citation alluded to the presence of certain electrical circuits,

676

the inspector's testimony is devoid of any reference to any
such electrical circuits or electrical hazards.
In my view, the intent of the standard is to preclude the
use of an extinguishing agent or apparatus capable of conducting electricity, thereby introducing an electrical hazard if
the proper type of extinguisher is not available when work is
being performed with an electric arc or open flame. As an
example, the inspector stated that if a water fire extinguisher
were being used, it could create an electrical hazard (Tr. 60).
The inspector testified that electrical welding was taking
place, and that the work included the use of an "air arc
process" which is a cutting method that uses compressed air to
remove molten metal. He confirmed that he could not recall
whether an electric or gas process was being used, nor could he
recall whether an electrical welding device or a torch open
flame device using oxygen acetylene or propane was being used.
In any event, he confirmed that the term "air arc" could apply
to either a torch welding system or an electric system, and
that the respondent was using one or the other, and no other
type of syst~n (Tr. 59).
Mr. LeBlanc confirmed that he was not present during the
inspection and he had no knowledge as to whether or not any
fire extinguisher was provided at the location where the
welding work in question was being performed. He conceded
that the work was being performed with an acetylene cutting
torch which produced an open flame.
On the facts presented here, although the inspector could
not recall which of the two welding systems were being used
(electric arc or open flame), Mr. LeBlanc confirmed that it
was the latter. The inspector's credible testimony establishes
that no fire extinguishing agent or device was available at the
loca.tion where the work was being performed. Although one may
argue that in the absence of any fire extinguisher, an electrically conductive extinguishing agent was not· present to create
an electrical hazard, my construction 6f the intent of the
standard l2rtds me to conclude and find that a multipurpose
dry-chemical extinguisher was required to be available at the
work location in question. Since it was not, I further conclude and find that a violation has been established, and the
citation IS AFFIR.\1ED.
Citation No. 3061712, 30 C.F.R. § 56.14001
The evidence establishes that the compressor drive unit
was not guarded to prevent contact with an ex:posed moving

677

machine part. Although the evidence establishes that the
unguarded unit was facing the wall, and that it had to be
moved in order for one to gain access to it, I cannot conclude
that it was "guarded by location." The inspector stated that
the unguarded drive was approximately 5 to 5-1/2 feet above
ground level, and Mr. LeBlanc confirmed that it was at "eye
level." The inspector also testified that the compressor was
located in a shop area where tools and other materials were
located and stored, and that employees had ready access to the
area. Although the inspector agreed that it was unlikely that
anyone would get caught in the unguarded drive unit and suffer
an injury, the intent of the guarding standard is to preclude
the possibility of anyone contacting an exposed and unguarded
pinch-point through inattention, inadvertence, or ordinary
human carelessness. See: Secretary of Labor v. Thompson
Brot~~~~-~oal Company, Inc., 6 FMSHRC 2094 (September 1984).
I conclude and find that a violation has been established, and
the citation IS APFIRMED.
Citation No. 3061713, 30 C.F.R. § -~6.14001
The inspector issued the citation after finding that a
belt drive unit on a floating fresh water pump was not guarded
over i'ts "ingoing pinch points." The pump was in.stalled on a
6 x 6 foot barge which is supported by floats, arid it was
located on the water 20 x 30 feet off shore (photographic
exhibit P-9)~ The inspector believed that it would be
unlikely that anyone would be on the barge when the pump was
started from the plant, and due to the location of the pump,
he did not believe that it was likely that anyone would be
exposed to a hazard. Mr. LeBlanc's unrebutted credible testimony reflects that the pump motor is activated by means of a
switch located in the plant which was located some 200 to
300 feet from the barge, and that any priming of the pu..'tlp is
done from shore. Mr. LeBlanc confirmed that no one is
required to be on the barge during the normal operation of the
pump, and that although someone may be on th!= barge once· a
week for service before any dredging is begun, the pump is
deenergized and shut down, and if any major repairs to the
pump are required, the pump is lifted out of the water with a
chercy picker and taken ashore for repairs.
I find no evidence to support any reasonable conclusion
that there existed a reasonable possibility of anyone contacting the unguarded pump belt drive unit in question, and the
petitioner has presented no evidence to establish that anyone
would ever be near the belt drive while the pump was in operation. Under the circllinstances, I conclude and find that a

678

violation has not been established, and the citation IS
VACATED.
Citation No. 3061714, 30 C.F.R. § 56.4100(b)
The inspector issued the citation because of the presence
of oils and fluids in the shop area where welding was taking
place. Section 56.4100(b), prohibits the use of an open flame
where flammable combustible liquids, including greases, are
stored or handled. The inspector testified that he observed
several 55 gallon drums of oil, one of which had a hand pump
foe dispensing the oil, and three or four drums of petroleum
fuel.
The inspector confirmed that the superintendent advised
him that a new storage area was being prepared to store the
drums of oil and fluids in question.
The evidence establishes that the oil and fluid drums in
question were stored inside the shop area in one corner, and
that the welding work in progress was taking place outside of
the shop. The inspector had no knowledge as to the types of
fluids or oils which were in the drums, and he presented no
credible testimony or evidence to establish that the oils and
fluids were in fact combustible or flammable.
He confirmed
that section 56.4100 does not establish any particular distance
parameters requiring the separation of stored flammable and
combustible materials from open flames, and assumed that the
use of an open flame in the same building where such materials
are stored would be prohibited, unless there was an appropriate
distance between the two or a partition isolating the materials
from an open flame.
He conceded that in this case, he simply
concluded that the materials and open flame welding were in
"close enough proximity" to present a hazard (Tr. 79-80).
In this case, the evidence establishes that the oil and
fuel drums were stored inside the shop approximately 8 to
10 feet away from where the welding was taking place {Tr. 52).
The shop was approximately 100 x 200 feet, with an opening in
the front of approximately 50 to 75feet. T"he dredge bucket
which was being worked on was located oqtside of the shop on
the ground some 4 to 5 feet beyond the roof line of the shop
(Tr. 56). Thus, the drums in question were stored inside the
shop approximately 12 to 15 feet from where the dredge bucket
was located outside of the shop. Under these circumstances, I
conclude and find that there was an adequate physical separation between the outside shop area where the work was being
done and the drea inside the shop where the drums which were
not proven to contain combustible or flammable materials were
stored, and that the work location was not, by any reasonable
interprat~tion, ~ location where flammable or combustible

679

liquids were stored. Accordingly, I further conclude and find
that a violation has not been established, and the citation IS
VACA'rEo.
Significant and Substantial Violations
A "significant and substantial". violation is described in
section 104(d)(l) of the Mine Act as a violation "of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 814(d)(l). A violation is properly
designated significant and substantial "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature."
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April
19 81) •
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove:
Cl) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety-contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC
a~ follows:

1125, 1129, the Commission stated further

We have explained further that the third
ele1nent of the Mathies formula "requires that
the Secretary establish a reasonable likelihood
that the hazard contributed to will result in
an event in which there is an injury." U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance
with the langu~ge of section 104(d)(l), it is
the contribution of a violation to the cause
and effect of a hazard th~t must be significant
and substantial.
U.S. Steel Mining Company,

680

Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
steel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Citation No. 3061706
I conclude and find that the loose and broken wire mesh
guard over the engine drive shaft and couplers constituted a
significant and substantial violation. The location of the
engine was such that it was readily available to anyone
stepping across from one side of the dredge to the other, and
given the fact that the angle iron guard support had broken
through fatigue, I believe that over time, as more strain was
placed on the mesh guarding by anyone stepping or walking on
it, it would be reasonably likely that the guarding would have
given way.
If this had occurred while someone was stepping
over it or walking on it, he could have fallen into the moving
drive shaft and couplers and suffered injuries of a reasonably
serious nature. Under the circumstances, the inspector's
"S&S" finding IS AFFIRMED.
I take note of the fact that although the citation issued
by Inspector Smiser makes reference to a potential drowning if
someone were to fall into the water and oil held in the bottom
of the dredge, no testimony was forthcoming from the inspector
with regard to this alleged hazardous condition, and my findings and conclusions are limited to the question of possible
contact with moving machine parts because of the loose and
unsecured wire mesh guarding in question.
Citation No. 3061707
I conclude and find that the failure of the dredge operator to wear a life jacket while performing his work duties on
the slippery deck of the dredge which was not protected by
handrails constituted a significant and substantial violation.
Given the fact that the dredge operator works alone in water
which is sometimes as much as 30 feet deep, if he were to slip
and fall off the dredge without a life jacket, and possibly
strike his head on the metal deck, I believe that one could
conclude that he would likely drown. The inspector's "S&S"
finding IS AFFIRMED.

681

With regard to Citation No. 3061711, concerning the lack
of a fire extinguisher in the shop area where welding was
taking place with an electrical arc and cutting torch, the
evidence establishes that the welding work was not being performed inside the shop where the 55-gallon drums of oil were
stored in one corner. The work was being done outside the
shop some 12 to 15 feet from where the drums were located.
Inspector Smiser conceded that it was possible that the respondent was performing the welding outside of the shop as a precautionary measure to insure some distance between the welding
work area and the area where the drums were stored. The
inspector also confirmed that in the event of a fire, the
employees in the shop area would have no difficulty in exiting
the shop. Mr. LeBlanc confirmed that the welding work was
taking place at ground level, and he did not believe that any
sparks generated by the welding activity could reach the drums
which were stored in the corner of the shop.
Based on the facts presented here, I cannot conclude that
the violation was significant and substantial. Given the fact
that the welding was taking place at ground level outside the
shop, and some distance from the stored oil drums, I find it
unlikely that any sparks generated by the welding activity
would reach the drums and ignite the oil and cause a fire.
Further, I find no evidence that the lack of a fire extinguisher presented any electrical hazard. Under the circun1stances, the inspector's "S&S" finding IS REJECTED, and the
citation is modified to a non-"S&S" citation.
Size of Business and Effect of Civil Penalty Assessments on
the Respondent's Abilitx to Continue in Business
Based on the stipulations by the parties and Mr. LeBlanc's
unrebutted testimony concerning the size and scope of his
operation, I conclude and find the respondent is a very small
mine operator.
The parties have stipulated that payment of any civil
penalty assessments in this case will not adversely affect the
respondent's ability to continue in business. I adopt this
stipulation as my finding and conclusion on this issue.
~istorx

of Prior Violations

Mr. LeBlanc stated that he has operated his present
business since 1984. Although the petitioner's proposed stipulations, ~xhibit ALJ-1, and the information which appears on
MS.HA' s proposed assessment Form 10 0-17 9, r.:ef lects that the

682

respondent had no prior assessed violati.ons for the 24-month
period prior to the issuance of the citations in issue in this
case, Mr. LeBlanc believed that he had three prior citations.
However, he could provide no further information, and the petitioner could not elaborate further.
Since the burden of establishing any prior violations
lies with the petitioner, and since the petitioner did not
present any computer print-out or other evidence with regard
to any prior assessed violations, I conclude and find that for
purposes of the civil penalty assessments made by me for the
violations which have been affirmed, the respondent has no
history of prior assessed violations.
Good Faith Compliance
Mr. LeBlanc testified that his operation has never
experienced an accident or injury, and that he has a concern
for the safety of his employees and has always taken prompt
corrective action to abate any violative conditions brought to
his attention. He confirmed that he always welcomes any MSHA
inspection in order to maintain a safe working environment for
his employees, and that all of the citations in this case were
promptly abated within 24 hours.
Inspector Smiser agreed with Mr. LeBlanc's testimony, and
the parties have stipulated that all of the citations were
abated in good faith by the respondent within 24 hours.
Accordingly, I conclude and find that the respondent exhibited
rapid good faith compliance in correcting the cited conditions, and this is reflected in the civil penalties which I
have assessed for the violations which have been affirmed.
Negligence
For the reasons stated by the inspector, I agree with his
moderate negligence findings with respect to Citation Nos.
3061706, 3061707, and 3061711, and these firidihgs are all
affirmed.
I also agree with his low negligence findings with
respect to Citation No. 3061712, and his finding in this
regard is affirmed.
Gravity
In view of my "S&S" findings with respect to Citation
Nos. 3061706 and 3061707, I conclude and find that these violations were serious.
I further conclude and find that the
violation cited in Citation No. 3061711, was non-serious.

683

Civil Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llOCiJ of
the Act, I conclude and find that the following civil penalty
assessments are reasonable and appropriate for the violations
which have been affirmed in this proceeding:
Citation No.

Date

3061705
3061706
3061707
3061708
3061711
3061712

03/01/88
03/01/88
03/01/88
03/01/88
03/01/88
03/01/88

30 C.F.R. Section
56.14006
56.14001
56.15020
56.14001
56.4606CaJClJ
56.14001

Assessment
$
$
$
$
$
$

30
70
65
20
20
20

ORDER
The respondent IS ORDERED to pay the civil penalties
assessed in this proceeding within thirty (30) days of this
decision and order. Upon receipt of payment by the petitioner,
this case is dismissed.
Citation Nos. 3061709, 3061710, 3061713, and 3061714 ARE
VACATED, and the proposed civil penalty assessments ARE denied
and dismissed.

~/?::·!!u~
Administrative Law Judge

Distribution:
Brian L. Pudenz, Bsq., Office of the Solicitor, U.S.
Department of Labor, 525 Griffin Street, Sufte 501, Dallas, TX
75202 (Certified Mail)
Dudley J. LeBlanc, Owner, LeBlanc's Concrete & Mortar Sand
Company, 1400 Millie Street, Rosenberg, TX 77471
(Certified Mail)
/f b

684

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

22041 ·

APR 2 4 1989

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 88-152
A.C. No. 15-13469-03658
Green River Coal No .. 9 Mine

GREEN RIVER COAL COMPANY,
Respondent
DECISION
Appearances:

Joseph B. Luckett, Esq., Office of the
Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for the Petitioner;
B. R. Paxton, Esq., Paxton & Kusch, Central
City, Kentucky, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llOCa) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(a), seeking civil penalty assessments for four alleged
violations of certain mandatory safety standards found in
Part 75, Title 30, Code of Federal Regulations. The respondent filed a timely notice of contest and a_hearing was.conducted in Owensboro, Kentucky. The parties were afforded an
opportunity to file posthearing arguments, but did not do so.
However, I have considered their oral arguments made during
the hearing in my adjudication of this matter.
Issues
The issues presented in this case are (1) whether the
conditions or practices cited by the inspector constitute violations of the cited mandatory safety standards, (2) the appropriate civil penalties to be assessed for the violations,
taking into account the statutory civil penalty criteria found
in section llOCi> of the Act, and (3) whether the violations
were "significant and substantial." Additional issues raised

685

by the parties are identified and disposed of in the course of
this decision.
Applicable Statutory and Regulatory Provisions
Pub.

1,

The Federal Mine Safety and Health Act of 1977,

2.

Section llOCi) of the 1977 Act, 30

3.

Commission Rules, 29 C.F.R. § 2700.l et ~·

r... 95-164, 30 u.s.c. § 801 et seq.

u.s.c. § 820Ci).

The parties stipulated to the following (Exhibit P-1):
1. The presiding judge has jurisdiction
to hear and decide this case.
2. The respondent employs approximately
200 workers, and produces over one million tons
oe coal per year.
3. The civil penalty assessments in question will not affect the respondent's ability
to continue in business.
4. The respondent acted in good faith and
timely abated the alleged violations.
5 • . The respondent's history of previous
violations for the 2-year period preceding
March 21, 1988, is as indicated in MSHA's
computer print-out (Exhibit P-2).
Discussion
During a prehearing conference prior to the taking of
testimony, the parties informed me that they proposed to.
settle Citation Nos. 3227255 and 3227256, and that the respondent agreed to pay the full amount of the proposed civil
penalty assessments, and to withdraw its notice of contests
with respect to these citations. The proposed settlement was
approved from the bench, and my decision in this regard is
affirmed. The citations are affirmed as issued.
With regard to Citation No. 3227257, respondent's counsel
confirmed that although the respondent does not dispute the
fact of violation, 0r the inspector's "S&S" finding, it does
dispute the appropriateness of the proposed civil penalty
assessment.
Counsel also confirmed that the parties have discussed a settlement of the case but that the petitioner's

686

counsel would not agree to any reduction in the proposed civil
penalty assessment. Under the circumstances, evidence was
taken on this citation, and the parties were afforded an opportanity to present arguments with regard to the appropriate
civil penalty assessment.
With regard to Citation No. 3227259, respondent's counsel
confirmed that the respondent still desired to continue its
contest on this alleged violation, and testimony and evidence
was taken in this regard.
All of the section 104(a) "S&S" Citations in this case
were issued by MSHA Inspector Jerrold Pyles on March 21, 1988.
Mr. Pyles issued an initial section 107(a) imminent danger
order and cited four alleged violations which are as follows:
Citation No. 3226255, cites a violation of 30 C.F.R.
and the cited condition or practice is described as
follows:

§ 75.200,

The inby and outby brows located at crosscut 6, on the 5 o~belt, had not had additional
support set where a roof fall had occurred,
according to the rock loading plan on page 9 of
roof-control plan dated Dec. 3, 1987. Also
refer to page 6, art. 22 B and D.
Citation No. 3227256, cites a violation of 30 C.F.R.
and the cited condition or practice is described as
follows:

§ 75.200,

The timber plan, located in roof-control
plan dated Dec. 3, 1987, on page 13 in sketch
was not followed at crosscut 6 on the 5 D-belt.
A roof fall had occurred in this area and there
were no timbers from the beginning of fall
(3 ft. outby crosscut) to end of fall, at end
of intersection. Two bolts in cavity oh either
side of belt were not touching roof. water was
coming through top in this area.
Citation No. 3227257, cites a violation of 30 C.F.R.
and the cited condition or practice is described as
follows:
§ 75.400,

At cross cut No. 6 on the 5 D-belt where
roof fall had occurred, grey shale had slid
against belt and belt was running against it.
Also a piece was lodged between bottom and top

687

belt. Belt was also rubbing against a wooden
holy board used to prop belt rope up; there
were four frozen or stuck rollers in this area
(approximately 24 ft.) and belt line from tailpiece to this area (approx. 540 ft.) had float
dust under and in crosscuts along the belt,
areas were light brown to black.
Citation No. 3227259, cites a violation of 30 C.F.R.
§ 75.1403(5)(g), and the condition or practice is described as

follows:
A clear travelway of at least 24 inches
was not provided on the 5 D-belt crosscut
No. 6, in that rock had fallen down against
belt due to a roof fall and had the travelway
partially blocked to where a man or person
would have to walked (sic) over the top of it.
Area was wet and slippery on top of the grey
shale.
MSHA Inspector Jerrold Pyles testified as to his experience and training, and he confirmed that he issued Citation
No. 3227259 (exhibit P-8). He confirmed that a rock fall had
previously occurred at the No. 6 crosscut where the number
5 D-belt was located, and that the rock had slipped down on
each side of the belt partially blocking the travelway on each
side of the belt. Mr. Pyles identified exhibit P-5 as a copy
of his notes which include a sketch of the fall area.
Mr. Pyles described the extent of the fall, and confirmed
that the rock covered both sides of the belt. He stated that
the rock was approximately 2 feet high and extended for a
distance of 10 to 12 feet along both sides of the belt. He
confirmed that the .area was wet, and although the rock was
slippery in spots, there was no standing water in the area.
He also confirmed that most of the rock fall had been loaded
out, and that coal was being loaded out on the belt.
Mr. Pyles stated that he made a gravity finding of "reasonably likely" because he believed that a belt examiner
walking the belt line for the purpose of examining the belt
pursuant to standard section 75.303, would have to walk over
the rock to examine the belt, and since the rock was slippery,
the examiner could fall into the belt if it were moving.
If
it were not moving, the examiner could slip on the rock and
suffer injuries if he were to strike the belt. Mr. Pyles
confirmed that the shift started at 8:00 a.m., and that he
issued the citation at 10:00 a.m.

688

Mr. Pyles stated that only the belt examiner would be
exposed to the hazard, and although he observed a man in the
area, he did not know what he was doing there. Mr. Pyles confirmed that in the event of a slip off the rock, the examiner
would likely suffer serious injuries or bruises depending on
whether the belt was running or not, and that lost time would
likely result from such injuries.
Mr. Pyles confirmed that he made a negligence finding of
"moderate" because the respondent had loaded out most of the
rock fall and was loading out coal on the belt. He believed
that the operator was aware of the condition, but conceded
that the rock in question could have slipped after the initial
rock fall occurred and was loaded out. Mr. Pyles confirmed
that he based his "S&S" finding on his belief that it was reasonably likely that an accident would occur and that serious
injuries would follow.
Mr. Pyles identified exhibit P-9, as a copy of a previous
safeguard notice he issued on January 21, 1987, citing mandatory standard section 75.1403(5)(g), and he confirmed that he
based his citation on that safeguard notice. Mr. Pyles could
not recall the details concerning the conditions which prevailed at the time of the safeguard notice, and he confirmed
that no rock fall was involved. He stated that once a safeguard notice is issued, it becomes law for the mine, and in
the event of a subsequent repeat violation, a citation would
be issued.
He also confirmed that the cited condition was
corrected and the citation was terminated at 4:30 p.m., the
same date that it was issued.
On cross-examination, Mr. Pyles stated that although the
belt examiner could walk around the rock on either side of the
belt, and had enough room to shine his light on the belt, his
passage would be restricted and he would still be required to
walk over the slippery rock in order to adequately inspect the
belt. He conceded that the belt examiner had ~nough room to
walk around the belt to shine his light, and that he could get
within 10 feet of the belt to observe it, and that by doing
this, he would be in a safe position.
Mr. Pyles confirmed that the belt examiner would be looking for fallen rocks, spillage, and stuck belt rollers, and
that he would also be required to shut the belt down in the
event of a hazardous condition.
In order to adequately do his
job in this regard, the belt examiner would necessarily have
to walk over the slippery fallen rock.

689

Mr. Pyles did not know when the rock slipped, and he
agreed that the cited condition could have occurred between
the time the belt examiner last walked and examined the belt
and the time he arrived on the scene. Mr. Pyles confirmed
that pursuant to section 75.303, belt conveyors are required
to be examined at any time during the shift and after coal
production has started. Mr. Pyles confirmed that he did not
speak to the belt examiner or examine the preshift books.
Mr. Pyles confirmed that after the initial rock fall,
enough rock was removed to facilitate the reinstallation of
the belt, and he confirmed that he observed evidence of work
being done to correct the rock fall conditions. He also confirmed that the prior roof and rock fall cavity had been
re-bolted and the roof re-supported.
In the final analysis,
it was his judgment that the rock which had slipped restricted
passage on either side of the belt and it did not afford the
belt examiner enough room to pass through the area to adequately view and inspect the belt.
Grover Fischbeck, respondent's former safety manager,
conEirmed that he was with Inspector Pyles during the course
oE his inspection, and that the citation was served on him.
He confirmed that an initial roof fall had occurred in the
cited area earlier in the week of March 21, 1988, and that the
rock was removed from the center of the crosscut down to the
mine floor level, and that rock was scaled down to clear out
any remaining loose rock. He also confirmed that the roof was
fully supported, and that he did not know when the rock which
was present when he and Mr. Pyles observed it during the
inspection fell, and that the last time the belt was "made"
was during the last shift on the day before the inspection.
Mr. Fischbeck believed that the belt area in question
could have been visually inspected by the belt examiner safely
by walking up to edge of the belt where the rock had fallen
and then walking around the adjacent entry and viewing the
belt from the other side.
If this were doni, the belt examiner
would not have been exposed to any hazard.
Mr. Fischbeck stated that while he and Mr. Pyles were in
the cited area, he observed belt examiner Hubert Hunt walk up
to the edge of the belt where the rock was located and observe
the belt, but that he did not speak to him at that time.
Mr. Fischbeck stated that he was surprised to find the rock
when he and Mr. Pyles arrived at the scene.
Mr. Fischbeck confirmed that he was familiar with the
prior safeguard notice issued by Mr. Pyles and confirmed that

690

it did not involve a rock or roof fall~ He explained that the
installation of timbers in an area adjacent to a belt which
had been installed off-center restricted the adjacent walkway
in such a manner as to reduce the clearance to less than
24 inches, and that additional rock had to be scaled down to
further widen the walkway to permit access for the belt
examiner.
On cros~-examination, Mr. Fischbeck stated that the belts
are not usually examined unless they are in operation, and
that this is necessary in order to inspect the belts for
hazards under actual operational conditions. He confirmed
that the rock had slipped down from the side of the entry and
was resting against the belt, but that it was not uniformally
2 feet high along the 10 feet distance in which it was resting
against the belt. He estimated that the height of the rock
ranged from 1-1/2 to 2 feet, and that the belt was 18 to
24 inches high off the mine floor.
He agreed that the rock
caused some blockage of the walkway and that it presented a
stumbling hazard.
Inspector Pyles confirmed that he issued Citation
No. 3227257 (exhibit P-7}, after observing loose coal and coal
dust ranging from zero to 8 inches on either side of the 5
D-belt. He also observed that a piece of the shale rock which
had slipped against the belt was rubbing the belt top and
bottom, and that the belt was also rubbing against a roof
support "header" or "holy" wooden board which was being used
to support a cable. The rock had knocked the belt out of line
against the board causing it to touch and rub against the belt.
He described the dimensions of the board as 10 x 16 inches.
Mr. Pyle also confirmed that he observed four stuck belt
rollers which were not turning within a belt area of 24 feet,
and float coal dust under the belt and in the crosscuts for a
distance of approximately 540 feet from the belt tail piece to
the area whece the rock fall had occurred.
Mr. Pyles stated that the belt was running, and he
believed that any friction caused by the belt rubbing against
the rock and board, and the stuck rollers which were not turning, were potential ignition sources and could have ignited
the float coal dust. Although the area was wet, some of the
float coal was on top of the wet areas, but when he picked up
a handful of the float coal dust and squeezed it, it was dry
and not damp. He also confirmed that he did not otherwise
"test" float coal dust accumulations and simply observed it
visually. He described the float coal dust as "light brown to
black" in color.

691

Mr. Pyles confirmed that he made a gravity finding of
"reasonably likely," and he believed that in the event of a
fire it was reasonably likely that 12 miners working on the
section would be exposed to fire, smoke inhalation, and entrapment hazards. He also confirmed that he based his "S&S" finding on the fact that if mining were allowed to continue it was
reasonably likely that a fire would have occurred and exposed
miners to the. aforementioned hazards.
On cross-examination, Mr. Pyles stated that his principal
concern was the potential fire which could result from the
presence of the accumulations of loose coal and coal dust, and
the potential ignition sources which were present. He confirmed that he observed no fire sensors on the belt, but conceded they could have been present because each belt is
normally provided with a fire sensor system.
Mr. Fischbeck testified that the board referred to by
Mr. Pyles was saturated with water and that no float coal dust
or other combustibles were present in the area where the board
was located. With regard to the belt rubbing against the
rock, Mr. Fischbeck believed that given the fact that it was a
rock and not coal, there was a low potential for any fire.
Mr. Fischbeck identified exhibit P-12 as a copy of the
most recent fire boss examination records which he supplied,
and he stated that the examination record for March 21, makes
no reference to any hazardous conditions in the areas cited
Mr. Pyles. Although the records indicated that some areas
needed to be cleaned up and rock dusted on March 18 and 19,
since these conditions were not noted on the record for
March 21, he assumed they had been corrected and were not
present on March 21.
Mr. Fischbeck confirmed that Mr. Pyles took no samples of
the loose coal or coal dust, and that clean-up and rock dusting
is performed periodically on the section. H~ agreed that 12
miners were working on the section on the day of the inspection, but that an alternative fire escape route was available
to these individuals through the intake air course.
Mr. Fischbeck stated that his notes reflect that the area
cited by Mr. Pyles was damp and rock dusted. He stated that
dry coal dust is not uncommon, and agreed that the tail piece
needed to be shovelled because of some coal spillage, and that
shovelling is done periodically at that location.
Mr. Fischbeck stated that fire detection sensors were in
place on the belt line, and that 2 inch Eire hoses and water

692

lines were available along the belt for use in the event of a
belt fire.
The detection devices were located down the center
of the belt, and they were suspended from the roof.
Findings and Conclusions
Fact of Violations
Section 104(~) "S&S" Citation Nos. 3227255 and 3227256,
30 C.F.R. § 75.200
As previously noted, the parties agreed to settle these
violations, and the respondent conceded the fact of violations, including the inspector's significant and substantial
{S&S) findings, and agreed to pay the proposed civil penalty
assessments in full.
The proposed settlements have been
approved, and the citations and violations ARE AFFIRMED AS
ISSUED.
Section 104(a) "S&S" Citation No. 3227257, 30 C.F.R. § 75.400
The respondent does not dispute the fact of violation or
the inspector's "S&S" finding, and only contests the reasonableness of the proposed civil penalty assessment of $1,000,
for the violation (Tr. 71).
Under the circumstances, the citation and violation ARE AFFIRi."IED, and my findings and conclusions concerning the mitigation of the proposed civil penalty
assessment follow below.
I take note of the respondent's answer to the citation
and its assertion that at the time of the inspection which led
to the issuance of the violation, the respondent was doing
everything humanly possible to expeditiously address the conditions caused by the initial rock fall and that it was addressing the most serious condition first.
During oral argwnent at
the hearing, respondent's counsel confirmed that this was the
case, and he pointed out that all of the citations issued in
this case .'.'I.rose out of the same cir cums tance·s, · and that the
respondent has agreed to pay the full amounts of the civil
penalty assessments made for the two violations which have
been settled.
Petitioner's counsel asserted that in seeking a
civil penalty assessment in the full amount of $1,000 for the
violation, he does not rely on the narrative findings and
conclusions of MSHA's "special assessment officer," but does
rely on the testimony o~ the inspector who issued the citation
{Tr. 73).

It is cleac that t am not bound by MSHA's proposed penalty
assessment, nor am I bound by the narrative findings of its

693

Office of Assessments. I am free to make my own judgment as to
the reasonableness and appropriateness of any civil penalty
assessment based on the credible evidence and testimony adduced
by the parties, including any mitigating factors which I may
conclude warrant any adjustments in the proposed civil penalty
amount.
As noted earlier, the respondent does not dispute the
fact of violation, or the existence of the conditions which
prompted the inspectoc to issue the violation. It has, however, presented credible and probative evidence which in my
view mitigates its culpability, and the seriousness of the
possible fire hazard presented by the cited conditions.
~espondent's former safety manager Grover Fischbeck confirmed that the belt conveyor in question was equipped with ·
workable fire detection devices which would have alerted anyone of any fire on the belt. He also confirmed that the belt
was provided with a 2-inch water line with fire hose outlets
spaced periodically throughout the belt line, and that fire
hoses were located at the working section, as well as the unit
header, and that all of the fire hoses and detection systems
were operational (Tr. 96-98).
Inspector Pyles confirmed that
tha belt was pcotected by fire suppression devices consisting
of a "fire line" equipped with fire sensor heads (Tr. 81).
Although the inspector noted that he did not particularly
notice any of these devices, he confirmed that they are
normally provided on every belt in the mine, and he agreed
that the existence of these devices would be relevant in any
gravity determination. He conceded that he did not issue any
violation for the failure by the respondent to provide any
such fire fighting devices, and he agreed that they could have
been in place and operational (Tr. 81-82). with regard to his
initial imminent danger order which was issued in conjunction
with the issuance of the section 104Ca> citation in question,
the inspector conceded that his gravity finding of "reasonably
likely" in connection with the citation woul_d indicate a
degree of hazard less than a hazard that is characterized as
"imminent," and that the cited conditions presented a possibility of a fire (Tr. 83-84).

Although Mr. Fischbeck conceded that the board which was
rubbing against the belt was combustible, he also indicated
that it was saturated with water which was leaking from the
roof, and he considered the rock which was rubbing the belt as
a low potential fire source. Accocding to Mr. Fischbeck's
inspection notes, the belt tailpiece was extremely wet, and
the belt line was damp in different aceas, including the area
where the fall had occurred (Tr. 89). Mr. Fischbeck also

694

pointed out that in the absence of any tests, or samples, it
is difficult to determine how much rock dust may be mixed in
with the coal dust, and that on the day of the inspection no
rock dust samples were taken (Tr. 89). Mr. Fischbeck also
believed that in the event of a fire, the miners could have
escaped by an alternate route (Tr. 91).
Inspector Pyles confirmed that no rock dust samples were
taken, and although he indicated that he picked up a handfull
of float coal dust and squeezed it in his hand and no moisture
came out, he conceded that he only did this in one area (Tr.
102). He also agreed with Mr. Fischbeck's testimony that the
area was damp, but indicated that the float dust he observed
was lying on top of the damp and wet areas (Tr. 100).
Mr. Pyles also confirmed that the four stuck belt rollers were
not turning in any coal accumulations, and that he did not
issue any separate violation for the stuck roller condition
because there were not enough stuck rollers to warrant another
citation (Tr. 103).
Having viewed the witnesses during the course of the hearing, I consider Mr. Fischbeck to be a credible witness. His
testimony concerning the presence and availability of fire
detection and suppression devices on the belt line in question,
and his observations concerning the damp and wet conditions in
some of the areas in question mitigate the seriousness or
gravity connected with a potential fire hazard on the belt line
in question.
I take note of the fact that Inspector Pyles made a negligence finding of "moderate," and he confirmed that at the time
of the inspection most of the rock fall had been loaded out.
Be conceded that the ~ock which slipped against the belt could
have slipped after the initial rock fall occurred and had been
loaded out, and that the sliding rock caused the movement of
the belt and could have caused some of the coal spillage (Tr.
101). Mr. Pyles also confirmed that he saw evidence of work
being done to correct the rock fall conditio"ns. This lends
credence to the respondent's assertion that it was attempting
to correct the conditions resulting from the initial fall of
rock:.
Mr. Fischbeck testified that on the day of the inspection,
he was surprised to find that the rock had slipped against the
belt, and that when he spoke with the belt examiner that same
day after the inspection, the examiner advised him that the
rock was not there the day before (Tr. 57). The inspector confirmed that he based his moderate negligence finding on the
fact that his examination of the belt examiner's reports

69 5

reflected that some of the cited conditions had been noted in
the reports, and he concluded that the examiner should have
been aware of them. The examiner's reports (exhibit P-12), for
March 18 to March 21, 1988, contains notations that certain
areas of the 5-D belt were "dirty" and were in need of rock
dusting.
However, I find nothing to reflect the existence of
any stuck rollers or the belt rubbing against any rock or
board.
The belt examiner did not testify in this case, and
Inspector Pyles confirmed that he did not speak with him during the course of his inspection. Mr. Fischbeck assumed that
the conditions noted in the belt examiner's reports had been
corrected because the subsequent reports made by the last person to walk the belt. did not note the existence of those conditions (Tr. 92).
I find no evidence to support any conclusion
that the conditions associated with the stuck rollers or the
belt rubbing against the rock were present for any extended
period of time prior to the inspection.
Under all of these
circumstances, I conclude and find that the respondent's negligence is to some degree mitigated.
Citation No. 3227259, 30 C.F.R. § 75.1403-S(g)
The inspector issued the citation after finding that a
clear travelway of at least 24 inches was not provided on the
cited belt conveyor (exhibit P-8). The cited mandatory
criteria for belt conveyors found in 30 C.F.R. § 75.1403-S(g),
provide as follows:
A clear tcavelway at least 24 inches wide
should be provided on both sides of all belt
conveyors installed after March 30, 1970.
Where roof supports are installed within
24 inches of a belt conveyor, a clear travelway
at least 24 inches wide should be provided on
the side of such support farthest from the
conveyor.
In addition to the conditions observed by the inspector
which led him to conclude that a clear travelway was not maintained in compliance with the cited standard, the inspector
cited and relied on a previously issued Safeguard Notice
No. 2215634, which he served on the respondent at the same
mine on January 21, 1987 (Exhibit P-9). That notice was issued
~ursuant to section 75.1403-S(g), and it states as follows:

A clea~ travelway at least 24" wide was
not provided on both sides oE the 78 belt

696

between xcuts Nos. 88 & 89. There was less
than 24" on one side of belt betweeri roof
support (timbers) and rib nor between belt and
roof support. This is a notice to provide
safeguard.
MSHA's regulatory authority for issuing safeguard notices
which subsequently become mandatory for the mine is found in
30 C.F.R. § 75.1403, which is the statutory language found in
section 314{b), of the Act. It provides as follows:
Other safeguards adequate, in the judgment
of an authorized representative of the Secretary~ to minimize hazards with respect to transportation of men and materials shall be provided.
Section 75.1403-1 provides:
Ca)
Sections 75.1403-2 through 75.1403-11
set out the criteria by which an authorized
representative of the Secretary will be guided
in requiring other safeguards on a mine-by-mine
basis under section 75.1403. Other safeguards
may be required.
{b) The authorized representative of the
Secretary shall in writing advise the operator
of a specific safeguard which is required pursuant to section 75.1403 and shall fix a time
in which the operator shall provide and thereafter maintain such safeguard. Ii the safeguard
is not provided within the time fixed and if it
is not maintained thereafter, a notice shall be
issued to the ope~ator pursuant to section 104
of the Act.
(c)
Nothing in the sections in the section 75.1403 series in this Subpart O ~re~ludes
the issuance of a withdrawal order because of
imminent danger.
In Southern Ohio Coal Company CSOCCO), 7 FMSHRC 509
(April 1985), the Commission noted that the safeguacd provisions of the Act confer upon the Secretary "unique authority"
to promulgate the equivalent of mandatory safety standards
wi~hout resoct to the otherwise formal rulemaking requirements
of the A.ct. The CoTunission held that a safeguard notice,
unlike other ordinary safety standards, must be strictly construed, and that the safeguard must give the mine operator

697

clear notice of the nature of the hazard and the conduct
required of the operator to stay in compliance.
In SOCCO, an inspector issued a citation after finding
water 10 inches in depth from rib to rib at a stopping located
along a belt conveyor. Because of the presence of the water,
the inspector believed that a clear travelway of 24 inches was
not provided along the conveyor belt as required by a previously issued safeguard notice. The safeguard notice was
issued after the inspector found fallen rock and cement blocks
at three locations along a conveyor belt. Addressing the question as to whether the safeguard notice referencing "fallen
rock and cement blocks at three locations," and requiring
24 inches of clearance on both sides of the conveyor belt,
should have put SOCCO on notice that conditions such as the
water described in the citation fell within the safeguard 1 s
prohibitions, the Commission concluded that it did not.
In
this regard, the Commission stated as follows at 7 FMSHRC:
Given the frequency of wet ground conditions in the mine, and the basic dissimilarity
between such conditions and solid obstructions
such as rocks and debris, we find that SOCCO
was not given sufficient notice by the underlying safeguard notice issued in 1978 that
either wet conditions in general or the particular conditions cited in 1983 by the inspector
in this case would violate the underlying safeguard notice's terms.
we do not hold that a safeguard notice
pertaining to hazardous conditions caused by
wetness could not be issued. Conditions such
as those cited by the inspector here, if
hazardous, can just as readily be eliminated by
issuance of safeguard notices specifically
addressing such conditions. By taking this
approach rather than bootstrapping dis~imilar
hazards into previously issued safeguard
notices, the operator's right to notice of
conditions that violate the law and subject it
to penalties can be protected with no undue
infringement of the Secretacy's authority or
loss of miner safety.
In a footnote ~t 7 FMSHRC 512, the Commission made the
following observation:
"The requirements of specificity and
narrow interpretation are not a license for the raising or
acceptance of purely semantic arguments • . . • We recognize

698

that safeguards are written by inspectors in the field, not by
a team of lawyers."
In the instant case, the contested citation was issued by
inspector Pyles after he found that the travelways on either
side of the number SD conveyor belt for a distance of some
10 feet at the location where the rock had slipped and fallen
against the belt did not provide clear access for the passage
of a belt examiner who was required to walk and examine the
belt for hazards. The inspector found that the travelways
were partially obatructed by the rock, and although he believed
that the belt examiner could still travel through both sides of
the travelway adjacent to the belt, he would have to walk over
the top of the fallen rock which he considered to be hazardous
because of its wet and slippery condition (Tr. 62). The inspector also believed that the obstructed travelways would not
allow the belt examiner an opportunity to make an adequate
close examination of the belt because the examiner could not
position himself at a point which would have enabled him to see
over the rock into the belt location where the stuck rollers
were found (Tr. 36-37, 65-66). The inspector believed that any
attempt by a belt examiner to walk over the slippery rock which
obstructed the belt travelways would have exposed him to a
possible fall with serious injuries, and the possibility of his
falling into the moving belt (Tr. 16).
Mr. Fischbeck believed that the belt examiner could have
safely inspected the belt, but he conceded that given the
10 feet area where the rocK had slipped against the belt, the
examiner would not be able to walk the belt in its entirety
(Tr. 46). Mr. Fischbeck believed that the belt examiner could
have safely examined the belt by walking up to the araa where
the travelways were obstructed by the rock, viewed the belt,
and then walked around the crosscut to the other side of the
belt, and viewed it Ero1n that position (Tr. 46, 50). Although
Mr. Fischbeck believed that the examiner could have visually
inspected the belt E-rom these positions, he conceded that in
one area of the belt the rock, which he esti~ated was 18 inches
to 2 feet thick, was resting across the top of the belt (Tr.
53). He confirmed that rock was on both sides of the belt, and
that more of it was located on the front or supply road side of
the belt, than on the back side (Tr. 56).
Mr. Fischbeck agreed that the inspector issued the citation because "there was some stumbling hazards" and that "there
was so1ne obstructions in it" (Tr. 56-5 7) • Mr. Fischbeck confirmed that during the inspection he observed the belt examiner
approach the belt area where the rock had slipped, squat down,
and then proceed out the supply road to the other side of the

699

belt (Tr. 54, 57). Although Mr. Fischbeck believed that the
procedure used by the belt examiner to exa~ine the belt would
have provided him with a safe means of doing sb, he conceded
that by doing it in this manner, the belt examiner "would not
be exposed to walking over the rock that had slid down to the
belt" (Tr. 46).
After careful examination of all the testimony and evidence presented with respect to this citation, I conclude and
find that the travelways along both sides of the belt conveyor
for a distance of approximately 10 feet where the rock had
slipped and fallen against the belt were obstructed and were
not maintained with a clearance of at least 24 inches wide. I
also conclude and find that the obstructed travelways would
not allow the belt examiner to make a complete and thorough
inspection of the belt, and that the wet and slippery rock
conditions presented a hazard to any belt examiner attempting
to climb or walk over it, particularly while the belt was
running.
Inspector Pyles believed that his previously issued safeguard notice presented the same situation as that which was
present when he issued the citation in question, namely, the
obstruction of travelways along a belt conveyor (Tr. 20').
Mr. Pyles was of the opinion that regardless of the conditions
which may cause a belt travelway to be restricted, if a clear
travelway of at least 24-inches is not provided in accordance
with the safeguard notice, a violation is established (Tr.
63-64).
The respondent's credible testimony by Mr. Fischbeck
reflects that the obstructed travelways which prompted the
issuance of the initial safeguard notice were the result of
the timbering of an area where the belt was out of line, and
did not involve any fallen or slipped rocks. The location of
the belt near the rib, coupled with the installation of roof
timbers, resulted in the restriction of the travelways which
did not provide for a clearance of at least ~4 inches, and a
jackhammer had to be used to scale the rib to provide more
clearance (Tr. 48-49). Inspector Pyles confirmed that this
was in fact the case (Tr. 64).
During oral argument on the record, respondent's counsel
took the position that the citation should be dismissed because
the previously issued safeguard notice was based on timbering
conditions which did involve any rock falls or slips (Tr. 23,
43). Counsel asserted that the prior safeguard concerned
travelway conditions which were "man made," and that the rock
slip in connection with the contested citation was not such a

700

condition (Tr. 50). In support of his argument, counsel cites
the decision of the late Judge Ca~lson in Mid-Continent
Resources, inc., 7 FMSHRC 1457 (September 1985). In that case
an inspector issued a safeguard notice pursuant to section
75.1403-SCg), because coal sloughage obstructed a part of a
24-inch travelway on one side of a belt. Upon a subsequent
inspection, the inspector found another 24-inch travelway on
another belt obstructed by coal sloughage, timber, and a 1-foot
wide trench. Responding to the same argument as that made by
the respondent in this case, and relying on the COimnission's
decision in Southern Ohio Coal Company, supra, Judge Carlson
concluded that the citation was valid with respect t6 the coal
sloughage, but invalid with respect to the trench and timbers,
and his reasoning for these conclusions are stated as follows
at 7 FMSHRC 1461:
Under the Commission's reasoning in
Southern Ohio, I am not convinced that either
the shallow trench or the timbers in the 24-inch
travelway were encompassed within the limits of
the underlying notice to provide safeguards.
The specif ic~tion of "coal sloughage" in the
original notice was broad enough to embrace the
casual presence or accumulation of coal or
similar solid objects in the travelway. It was
not, however, broad enough to include a wholly
dissimilar impediment to travel such as a
shallow trench. The trench differed from ~uch
solid objects in much the saille way as accumulated -..rnter in Southern Ohio differed from the
rocks and construction debris which were covered
by the previous safeguard.
The status of the timbers which allegedly
impinged on the walkway space is not so clear.
Had the timbers been left on the floor to join
the coal sloughage as tripping-and-falling
hazards, they should logically be treat"ed as a
"similar" hazard covered by the underlying safeguard. The inspector's testimony, however,
indicated that the timbers were not merely a
loose impediment lying on the floor.
~ather,
they were upright timbers installed as a part
of the roof control system (Tr. 29). The timbers therefore constituted what may be referred
to as an essential part of the underground mine
structure.
In that sense they represented an
abatement problem far different from the mere

701

removal of random obstacles left on the travelway floor.
They differed enough from the class
of objects akin to coal sloughage to remain
outside the reasonable scope of the inspector's
notice of safeguard.
With regard to the assertion that the conveyor referred
to in the safeguard notices was at a location different from
that referred to in the citation, Judge Carlson found this
difference to be of no legal significance because the safeguard notice was directed to all conveyors in the mine, and
the evidence established that both conveyors were of the sort
covered by 30 C.F.R. § 75.1403-S(g), 7 FMSHRC 1462.
In the instant case, the safeguard notice issued by Inspector Pyles on January 21, 1987, citing section 75.1403-S(g),
specifically addressed the lack of 24 inches of clearance on
both sides of a conveyor belt travelway which was restricted by
roof support timbers. The notice stated that thee was less
than 24 inches on one side of the belt between the roof support
and the rib, and less than 24 inches on the other side between
the belt and the roof support. The second sentence of section
75.1403~5(g}, provides as follows:
"Where roof supports are
installed within 24 inches of a belt conveyor, a clear travelway at least 24 inches wide should be provided on the side of
such support farthest from the conveyor."
Inspector Pyles could not recall the circumstances under
which he issued the safeguard notice. However, he agreed with
Mr. Fischbeck's explanation that the notice was issued because
the installation of roof support timbers adjacent to the belt
travelways restricted the clearance on either side of the belt
to less than 24 inches.
Inspector Pyles also agreed that the
safeguard notice did not involve any rock falls or slips.
Although ~e provided credible testimony with respect to the
slip and fall hazards associated with any attempt by a belt
examiner to cli~b over the wet and slippery rock which
obstructed the belt travelways on March 21, ~988, no testimony
or evidence was pcesented with respect to the hazards associated with a restricted travelway caused by the installation
of roof support timbers close to a belt conveyor belt, or
whether oc not a belt examiner would have been [>revented from
conducting his required examination of the belt because of
such a condition.
Given the Commission's decision in Southern Ohio Coal
Company, supra, and the reasoning by Judge Carlson in
Mid-Continent Resources, Inc., supra, with which I agree, I
conclude and Eind that the conditions relied on by Inspector

702

Pyles in issuing the initial safeguard notice, conditions which
came about by the installation of roof timbers too close to a
belt conveyor which was out of line, and which required the use
of a jack hammer to shear off a rib to provide more clearance,
were different from the rock fall and slippage which restricted
the travelways cited by Mr. Pyles in his citation of March 21;
1988. In short, I conclude and find that the travelway impediment caused ~Y the installation of roof support timbers ~as
dissimilar from any impediment caused by the rock which had
slipped and fallen against the belt and that the safeguard
notice relied on by Inspector Pyles was not broad enough to
encompass the conditions cited in the citation. Under the
circumstances, I further conclude and find that Mr. Pyles'
reliance on the safeguard notice to support the citation was
invalid, and that the citation was improperly issued. Accordingly, the citation IS VACATED.
Based on the stipulations by the parties, I conclude and
find that the respondent is a medium-to-large size mine operator, and that the civil penalty assessments Eor the violations which have been affirmed will not adversely affect its
ability to continue in business. I also conclude and find
that the respondent acted in good faith in timely abating the
violations in question, and I affirm the inspector's moderate
negligence findings.
I also conclude and find that the violations were serious.
Civil Penalty Asse9sments
I have approved settlements for two of the contested citations, and the respondent has agreed to pay the full amount of
the proposed civil penalty assessments f9r the violations in
question, as follows:
Citation No.

Date

3227255
3227256

03/21/88
03/21/88

30

C.F.~.

75.200
75.200

Section

Assessment
$800
$800

With regard to Citation No. 3227257, concerning a violation of 30 C.F.~. § 75.400, because of the accumulations of
float coal dust along the cited belt conveyor line, the respondent admitted to the fact of violation and did not dispute the
inspector's significant and substantial (S&S) finding with
respect to the cited conditions. Given the extent of the
accumulations, which have not been rebutted by the respondent,
and the potential Eire hazard which existed on the belt line,
and notwithstanding the existence of Eire detection and
suppression devices which were on the belt line, I nonetheless

703

agree with the inspector's S&S finding which has been conceded
by the respondent.
Petitioner's Exhibit P-2 is a computer print-out detailing
the respondent's prior compliance record for the period
.March 21, 1986, through March 20, 1988, and the parties have
stipulated that this print-out reflects the respondent's history of prior violations for the 2-year period prior to the
issuance of the citations in question in this case. The
print-out reflects that the respondent was issued 1,012 violations, 746 of which are S&S violations.
It also reflect~ that
the respondent has paid $128,007, in civil penalty assessments
for 973 of the listed violations.
The aforementioned print-out also reflects that for the
2-year period in question, the respondent paid civil penalty
assessments for 167 prior violations of mandatory safety standard 30 C.F.R. § 75.400. Although I have taken into consideration the mitigating circumstances previously discussed with
respect t the citation, I conclude and find that for an operation of its size, the respondent does not have a very good
compliance record, particularly with respect to section 75.400,
which deals with accumulations of coal dust and float coal dust.
Accordingly, I have also taken this into consideration in the
following civil penalty assessment which I have made for the
citation in question.
Citation No.

Date

30 C.F.R. Section

Assessment

3227257

03/21/88

75.400

$800

ORDER
On the basis of the foregoing findings and conclusions IT
IS ORDERFD ·rHAT:

1. Section 104(a) S&S Citation Nos.
3227255, 3227255, and 3227257 ARE AFFIRMED, and
the respondent shall pay the aforementioned
civil penalty assessments to the petitioner
within thirty (30) days of the date of this
decision and order.

704

2. Section 104(a) "S&S" Citation No.
3227259, March 21, 1988, 30 C.F.R.
§ 75.1403-5(g), IS VACATED.

rge

.K~~

Administrative Law Judge
Distribution:

Joseph B. Luckett, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)
B. R. Paxton, Esq., Paxton & Kusch, 213 E. Broad Street,
P.O. Box 655, Central City, KY 42330-0655 (Certified Mail)

/f b

705

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

APR 2 4 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.

CIVIL PENALTY PROCEEDING
Docket No. SE 88-94-M
A.C. No. 08-00176-05509

v.
:

Clear Srings Mine & Mill

IMC FERTILIZER, INC.,
Respondent
DECISION
Appearances:

Before:

Kens. Welsch, Esq., Office of the Solicitor, U.S.
Deparb~ent of Labor, Atlanta, Georgia, for the
Secretary of Labor (Secretary); George L. Bushn,
Safety Director, for IMC Fertilizer, Inc. (IMC).

Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks civil penalties for two alleged
violations of 30 C.F.R. § 56.9003, cited on June 28, 1988,
because a Caterpillar front end loader and a Clark front end
loader had inadequate brakes. Pursuant to notice, the case was
called for hearing in Tampa, Florida, on March 16, 1989.
Lawrence L. Richardson testified on behalf of the Secretary;
Clarence L. Williamson, Charles Brown, Jessie Perez and
Ed Gilmore testified on behalf of IMC. At the conclusion of the
hearing the parties argued their positions on the record, and
waived the right to file post-hearing briefs. I have considered
the entire record and the contentions of the parties, and.make
the following decision.
FINDINGS OF FACT
IMC is the owner and operator of a phosphate mine in Polk
County, Florida known as the Clear Springs Mine. The operation
of the mine affects interstate commerce. IMC is a large operator.
During 1987, 284,195 man hours of work were reported at the Clear
Springs Mine. During the 24 month period from August 9, 1986 to
August 8, 1988, seven citations were issued charging violations
at the mine, including the two contested herein. Two have been
paid. This history is not such that penalties otherwise

706

appropriate should be increased because of it. The violations
involved in this proceediqg were promptly abated by IMC.
Lawrence L. Richardson, a Federal mine inspector made an
inspection of the subject mine on June 28, 1988. Richardson has
been a Federal mine inspector for approximately eleven years.
Prior to that time, he worked in the mining industry in Florida
for about 32 years. He has operated heavy equipment including
front end loaders, has been employed as a mine superintendent and
has owned his own contracting business. During his eleven years
with MSHA, he has inspected the brakes of thousands of front end
loaders.
CITATION 3249791-980 CATERPILLAR FRONT END LOADER
On June 28, 1988, IMC's 980 Caterpillar front end loader was
in a holding area undergoing repairs for a faulty electrical
light system. Inspector Richardson inspected the brakes, which
were air over hydraulic, the back up alarm, the horn and the
windshield wipers. He asked the mechanic to start the loader and
drive forward until the inspector dropped his hand and then to
apply the brakes. The loader came to a "slow stop." Before the
brakes were applied the loader was travelling at about 10 miles
an hour. After the brakes were applied it travelled 7 to 8 feet.
The inspector asked the loader operator if the brakes felt
"spongy" and the operator replied "yes." Inspector Richardson
issued the subject citation charging that the brakes were not
adequate.
Approximately one quart of hydraulic brake fluid was
added to the reservoir. The machine has two reservoirs, each
holding about two quarts of fluid.
The brakes were then tested
in the same manner as previously, and the vehicle stopped in 2 to
3 feet. The violation was considered abated, and the citation
was terminated.
IMC's witnesses testified that the stopping
distance was approximately the same on both tests. The operator
of the vehicle was on sick leave and did not testify. However, a
written statement taken from him by IMC Safety Supervisor
Williamson was a&nitted into evidence. I am accepting as factual
the testimony of Inspector Richardson based on· his experience and
expertise in perfocming the inspection.
CITATION 3249795 CLARK 275 FRONT END LOADER
On June 28, 1988, Inspector Richardson inspected the brakes
on IMC's Clark 275 loader in the same manner as the 980
Caterpillar. The 275 loader is a much larger piece of
equipment--perhaps twice as large as the Caterpill~r.
Again the
vehicle stopped in approximately 7 to 8 feet af tec the brakes
were applied.
A3ain, in answer to the Inspector's question, the
loader operator stated that the brakes felt spongy. The 275
Clark is equipped with an all air brake system; the brake ~edal

707

is spring loaded. The mechanic adjusted the brakes--tightening
the adjuster on one wheel by a half turn, and on the other wheels
by a quarter turn. Thereafter, the brakes were tested in the
same manner, the brakes locked, and the machine stopped in two or
three feet.
I accept the Inspector's testimony as factual for
the same reasons I accepted his testimony concerning the stopping
distances for the Caterpillar loader.
~EGULATION

At the time the citations were issued, 30 C.F.R. § 56.9003
provided as follows:
Powered mobile equipment shall be provided with
adequate brakes.
ISSUES
1.

Whether the brakes on the cited equipment were adequate?

2. If violations are established, what are the appropriate
penalties?
3. If violations are established, were they significant and
substantial?

CONCLUSIONS OF LAW
Respondent. at all relevant times was subject to the Federal
Mine Safety and Health Act in the operation of the subject mine,
and I have jurisdiction over the parties and subject matter of
this proceeding.
I have accepted the Inspector's testimony as to the results
of the tests he made on the two pieces of equipment:
the
equip,nent could be stopped in 7 to 8 feet prior to abatement and
in 2 to 3 feet after abatement (the addition of fluid in the case
of the Caterpillar; the adjustments in the cas~ bf the Clark).
IMC's witnesses were of the opinion that brakes which stopped the
equipment in 7 to 8 feet were adequate. They deny that the
adding of fluid or the adjustment performed had any effect on the
brakes' adequacy. Although the matter is not free from doubt, I
am accepting the Inspector's opinion that the brakes on both
pieces of equipment were inadequate when he tested them and
issued the citations. I base this conclusion largely on the
Inspector's extensive experience in the industry and as a Federal
inspector.
However, the Secretary has not carried her burden of
establishing that the violations were significant and substantial.

708

The inadequacy of the brakes was marginal. There is no evidence
in the record that in the case of either of the loaders, there
was a reasonably likelihood of a serious injury. The violations
were, however, of moderate seriousness. Because of the size of
the equipment, it is important that adequate brakes be maintained
at all times. There is no evidence that the violations resulted
from IMC's negligence. Based on the criteria in section llOCi)
of the Act, I conclude that an appropriate penalty for each
violation is $50.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Citations 3249791 and 3249795 are AFFIRMED, out the
significant and substantial finding is VACNr~D.
2. ·Respondent shall within 30 days of the date of this
decision pay the following civil penalties:
CITATION

PENALTY

3249791
3249795

$ 50
50
TOTAL

.
J

$100

.

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;_}f-:J i·c d.-i·l·TCf?__

.-

James A. Broderick
Administrative ·Law Judge

Distribution:
Kens. Welsch, Esq., U.S. Department of Labor,· Office of the

Solicitor, Rin. 339, 1371 Peacht.cee St., N.W., .~tlanta, GA 30367
(Certified Mail)

Mr. George L. Bushn, Safety Director, IMC Fertilizer, Inc., P.O.
Box 867, Bartow, FL 33830 (Certified Mail)
slk

709

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

APR 2 4 1989
UTAH POWER & LIGHT COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WEST 89-161-R
Order No. 2876489; 3/20/89

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

Cottonwood Mine
Mine ID 42-01944

DECISION
Appearances:

Before:

Susan E. Chetlin, Esq., Timothy M. Biddle, Esq.,
Crowell & Moring, Washi~gton, D.C.,
for Contestant;
Robert Cohen, Esq., Office of the Solicitor
U.S. Department of Labor, Arlington, Virginia,
for Respondent.
·

Judge Morris

This case :is before me under Section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 80i, ~seq.,
(the "Act"), to challenge the issuance by the Sec~eta~y of Labor
of an order charging Utah Power & Light Company C1'UP&L"}, with a
violation of the regulatory standard published at 30 C.F.R.
§ 75.400.
After notice to the parties a hearing on the merits was held
in Denver, Colorado· on April 5, 1989. The parties relied on oral
arguments, waived the filing of post-trial briefs and further
requested a decision without receiving the transcript of the proceeding.
Summary of the Case
Order No. 2876489, issued on March 20, 1989, involved an
alleged violation of 30 C.F.R. § 75.400.
The cited regulation provides as follows:
Subpart E - Combustible Materials and
Rock Dusting
§ 75.400

Accumulation of combustible
materials

710

[Statutory Provision]
Coal dust, including float coal dust
deposited on rock-dusted surfaces, loose
coal, and other combustible materials,
shall be cleaned up and not be permitted
to accumulate in active workings or on
electric equipment therein.
Order No. 2876489 states as follows:
Accumulations of coal fines (first cuttings)
was permitted to accumulate along the left
rib in the #1 Bleeder entry on the 9th East
working section.
The accumulations were behind the line curtain
installed on the left side and measured to be
104 feet 6 inches in total length and ranged
between 1) 16 inches deep x 16 inches wide
starting 40 feet outby the face; 2) 14 inches
deep x 26 inches wide 52 feet outby the face;
3) 31 inches deep x 26 inches wide 70 feet
outby the face; 4) 16 inches deep x 24 inches
wide 80 feet outby the face; 5) 14 inches
deep x 20 inches wide 90 feet outby the face;
6) 20 inches deep x 34 inches wide 100 feet
outby the face; 7) starting 4 feet outby
the face at the last row of permanent roof
supports and extending outby 40 feet 3! inches
deep x 12 inches wide 4 feet outby the face;
8) 9 inches deep x 12 inches wide 20 feet
outby the face; 9) 30 inches deep x 18 inches
wide 35 feet outby the face.
The accumulations were damp and had "salt and
pepper" amounts of rock dust from the mouth
of the entry and extending inby 60 feet.
The
last 40 feet had not been rock dusted at all
on the ribs or coal fines.
Contributing factors:
1) The section foreman, Bob Wilson, stated
the day shift Chis shift this day) on 3-17-89
had mined approximately l! cuts (60 feet).

711

2) The afternoon shift (swing shift) had
mined the next cuts to 108 feet or 48 feet
on 3-17-89.
3) The roof bolting machine was in the #1
entry when crew arrived on section this
shift and completed installing 4t rows of
permanent roof supports.
4) After completing the bolting cycle, the
roof bolt machine left #1 entry and went to
#2 entry and the miner was observed tramming
into the #1 entry.
5) There was no cleanup down prior to the
miner entering the #1 entry or while the
miner was being trammed to the face.
There
was no rock dusting being performed during
this time.
6) Mr. Bob Wilson, section foreman, had
done an onshift while roof bolter in #1
entry and stated "he saw the last 40 feet
needed rock dusted but didn't know the
last 60 feet outby behind the line curtain
that bad."
7) The practice of cleaning first cuttings
has been discussed numerous times with
management by inspection personnel out of
this office.
8) This is an obvious condition and must
be cleaned and removed from the mine.
9) First cuttings must be cleaned after
each bolting and cutting cycle.
10) There are only 2 working places
(entries) at the present time due to the
cutting of "bleeder" entries for a longwall panel being developed.

712

11) This was not rib sloughage due to
the fact that the ribs were straight up
and down without any fractures being
observed.
12) The miner is operated by radio remote
from the left side. The trailing cable
for the miner is also on the left side
(side with accumulations) and is supplying
the miner 950VAC.
Issues
The issues were whether a violation of 30 C.F.R. § 75.400
occurred7 if it occurred, should the violation be designated
as S & 57 further, if the violation occurred was it due to the
unwarrantable failure of the operator to comply with the
regulation.
Stipulation
The parties stipulated as follows:
1. The Commission and the Administrative Law Judge hearing
this dispute have jurisdiction to determine the issues herein.
2. Donald E. Gibson, an MSHA Inspector, was a duly autho~
rized representative of the Secretary at the time of the inspection.
3.

The Cottonwood Mine is a large coal mine.

4. various exhibits can be admitted into evidence without
further authentication.
Secretary's Evidence
RANDY TATTON, chief safety engineer for respondent at the
Cottonwood mine, was familiar with the 104(d)(l) order issued in
this case. He is also familiar with this section of the mine but
did not observe the conditions involved in the order.
This area was developed in the continuous miner section for
the purpose of advancing the longwall development entries.

713

There was no problem with any ribs sloughing in this
area.
Mr. Tatton was questioned about certain allegations in
UP&L's motion to expedite.
Mr. Tatton identified the company's cleanup plan (see
Exhibit C-3). The plan was dated November 16, 1977, and was
signed by the mine manager.
It had been originally forwarded
to MSHA on March 17, 1987. The MSHA district manager returned
the plan saying it did not require his approval and he merely
indicated the company should keep it on file for any MSHA
inspectors who might inquire about it.
Company miners are expected to follow the plan and clean
up after each cut. The first cuttings must be cleaned up as
part of the mining cycle and this includes a cl~anup close to
the ribs.
The continuous miner itself determines how close you
can approach the ribs or clean up the cuttings. On the brattice
side notches will be cut in the rib by the continuous miner.
This increased the difficulty of a cleanup (see Exhibit C-2
showing "line curtain" printed on the exhibit).
The company had been previously advised by Mr. William
Ponceroff, the local MSHA office supervisor, that the first
cuttings should be cleaned up as part of the mining cycle.
The law requires that the company have a cleanup plan and
they must comply with it.
Witness Tatton indicated he was familiar with a citation
issued by Inspector Jones on January 6. However, the company
was not cited for a violation of § 75.400 at that time.
Mr. Tatton was not present and did not know the details of
the Jones' citation (Jones' citation No. 3296223 was issued
for a violation of§ 75.316, as contained in Exhibit C-4).
The operator does its initial cleanup by sweeping along the
ribs with the continuous miner.

714

A line curtain keeps the air out of the area of low pressure
and, thus, the intake air is channeled directly to the working
face.
(Witness Tatton marks route of air with a red marker on
Exhibit C-2: witness further marks channeling of air with a blue
marker showing, by arrows, airflow if the line curtain is not
installed. )
The company must maintain ventilation otherwise a violation
of the ventilation plan could occur and the health and safety of
the miners would be affected.
The operator has encountered burn-out areas in this section
where the coal has previously burned.
Such a rib condition is
the worst possible situation as far as sloughage of the ribs is
concerned.
The company does not want its miners exposed to any fall
from the ribs.
The first cuttings occur when coal is dislodged by the
mining cycle when the initial cut is made.
Sloughage occurs
sometimes thereafter due to pressure on the ribs.
Mr. Tatton and Inspector Gibson discussed Inspector Jones'
citation for the violation of § 75.316, relating to approved
ventilation. Jones cited the company because the line curtain
was rolled up in order to clean behind it.
On the other hand,~
Inspector Gibson cited the company for not cleaning the cuttings
behind the curtain. It is apparent the company cannot do both.
It cannot roll up the curtain (which Inspector Jones complained
about) and it cannot clean the cuttings behind the curtain unless
it rolls it up.
It is necessary for the company to leave the
line curtain intact to maintain ventilation at the face and the
operator cleans the area after the next crosscut is broken
through.
At the time Inspector Gibson issued his order in this case,
he also read the Jones' citation but it did not have any impact
on his order.
Jones' citation was written because there was insufficient
air movement at the face but the citation does not say anything
about rolling up the curtain.

715

•

Witness Tatton agrees that the area must be cleaned up but
it is not necessary that it be done immediately. He particularly
relies on paragraph 2 of the company's cleanup plan. ~/
Inspector Gibson required the company to clean up all first
cuttings behind the line curtain and the company did that to the
best of the capability of the continuous miner.
The company has difficulty complying because they would be
violating its ventilation plan. There would be no air movement
at the face.
DONALD E. GIBSON, an MSHA inspector, is a person experienced
in mining as well as electrical specialist.
On March 20, 1989, Inspector Gibson was in the Cottonwood
mine continuing the inspection he started on March 14, 1989.
He entered the 9 East working section and saw the condition
that caused him to issue the 104(d) order. This condition
involved an accumulation of coal behind the ventilation line
curtain. He observed the continuous miner cutting the coal
and he was present when a shuttle car tore down a section of
the line curtain by the mouth of No. 2 entry (marked with a
black X on Exhibit C-2 >.

1/ Paragraph 2 of the operator's cleanup plan provides as
follows:
After the day and afternoon production mining
cycles, section roadways that have been broken
through will be pushed to the faces (cabs of
equipment used to clean will not advance past
last row of bolts). Faces that have not been
broken through will be cleaned on the off curtain side. The curtain side will be cleaned
after the connecting crosscut is broken through
to prevent the short circuiting of the face
ventilation. All cleaning of section roadways
and faces other than initial cleanup with continuous miner will be done on graveyard or idle
shifts.
(Exhibit C-3)

716

The inspector did not see any rock dust applied behind
the line curtain and in fact there was no rock dust for 40_feet
outby the face behind the curtain. From an area 40 feet outbythe face to the corner there were coal accumulations. For
40 feet outby the accumulations of coal cuttings varied in
width and depth. - They measured a distance of 104 feet .6 inches
for a total length and ranged between 16 inches deep x 16 inches
wide. The greatest accumulation was 2 feet x 34 inches. The
greatest amount was at a point 65 feet outby the face. The
inspector-took six different measurements and the depths ranged
from 14 inches to 31 inches. He estimated that the total amount
of coal in the area was between 500 and 800 pounds.
When he observed the accumulations he told the company
representative that "You have a Cd> Cl) order." The company
representative was surprised.
The accumulations were measured and recorded in the order
issued by Inspector Gibson. ~/

11

The order contains the following detail:
The accumulations were behind the line curtain
installed on the left side and measured to be
104 feet 6 inches in total length and ranged
between 1) 16 inches deep x 16 inches wide
starting 40 feet outby the face; 2) 14 inches
deep x 26 inches wide 52 feet outby the face;
3) 31 inches deep x 26 inches wide 70 feet outby
the face; 4) 16 inches deep x 24 inches wide
80 feet outby the face; 5) 14 inches deep x
20 in_ches wide 90 feet outby the face; 6) 20
inches. deep x 34 inches wide 100 feet outby
the face; 7) starting 4 feet outby the face at
the last row of permanent roof supports _and extending outby 40 feet 3! inches deep x 12 inches
wide 4 feet outby the face; 8) 9 inches deep x
12 inches wide 20 feet outby the face; 9) 30
inches deep x 18 inches wide 35 feet outby the
face.
-

717

Inspector Gibson questioned the section foreman who said
he had mad.e an on-shift inspection and he had told the crew to
rock dust. He said that the area behind the curtain was not that
bad. The area was not listed in the on-shift book.
The company had asked Inspector Gibson to do an electrical
examination on the afternoon shift and he had been in this
section on March 17. Subsequently, the company rotated the
shift and the foreman, Bob Wilson, stated that he had cut coal
on the 17th on the day shift. He also indicated they would clean
up on tne down shift.
The company had in faqt not cleaned up the first cuttings
during the idle shift.
It took about 45 minutes to remove the accumulations and
this was accomplished by using a battery-powered scoop. The
company also had two men shoveling it up. When cleaning up
the accumulation they were not disturbing the ventilation and
there was perceptible air movement.
In the inspector's opinion it is possible to clean up the
accumulations without disrupting the ventilation.
The continuous miner would back up 40 feet to 60 feet
and push the cuttings to the face1 then the miner could get
within 6 inches to 1 foot of the left and right ribs.
The ribs were not fractured.
30 inches away from the rib.

The line curtain was 24 to

Inspector Gibson was familiar with the Cottonwood cleanup
plan although he did not see the plan before he issued his
order. After looking at the plan he concluded it conflicted
with § 75.400.
This particular entry is a bleeder entry which allows
air to pass behind the gob of the longwall.
In the inspector's opinion, leaving 210 feet of coal
accumulations is a violation of § 75.400. The regulation requires that accumulations be removed immediately.
The initial cleanup plan applies only to the face area
and the cleanup plan violates § 75.400.

718

This operator had been previously cited for accumulations
under § 75.400.
Inspector Gibson issued a 104Cd)(l) order because he thought
the operator had acted willfully in not removing the accumulations.
In June he had previously discussed the removal of first
cuttings with management and also discussed it with company
representatives, Lauriska and Baker.
The company was aware of the first cuttings problem and he
believed the (d)(l) order was proper because of the amount of
accumulations and no attempt had been made to remove them.
The continuous miner generates sparks and it uses a trailing
cable to supply its power. In the inspector's opinion, the
accumulations were of a sufficient amount that an explosion could
result.
The inspector also described a "salt-and-pepper" float dust
condition on the accumulations. Some of the accumulations were
damp, but if a fire occurs any damp coal will quickly dry out.
The condition was obvious.
Inspector Gibson's order, which consists of four pages,
states that the first cuttings must be cleaned after each bolting
and cutting cycle. The operator can do that without violating·
the ventilation plan and it could be done while the roof is being
bolted.
The operator can also use vent tubing to supply air to the
face; other mines use that approach.
It is also possible to move
the line curtain to the center of the entry and use a scoop to
clean the entry and then return the curtain.
The ribs here are
in good shape.
In other parts of the mine, however, they do have
problems concerning loose ribs.
The inspector did not agree with the company's claim that
workers were exposed to any loose ribs; however, he understands
about such conditions and he realizes any loose ribs must be
supported before the area is cleaned up.
No accidents have occurred during any cleanup effort in the
last two years in the Cottonwood mine.

719

The inspector considers this a serious violation which
could affect the safety and health of the entire crew.
The
cuttings were generating coal dust and a 480 volt electrical
roof bolter was present in the area.
The operator must have been following some type of cleanup
plan because they had cleaned up the other entries.
Inspector Gibson was familiar with the MSHA policy manual
which addresses clean up. The exhibit is national in scope
(see page 74 and 75 of Exhibit R-3).
The language of the manual
indicates the operator must have a cleanup program available
for inspection at the mine.
The program does not permit accumulations to exist. Exhibit C-3 does not deal with accumulations
as required by § 75.400. The inspector has been at the Orangeville off ice for two years and he has been instructed concerning
accumulations since he began working at MSHA.
He has also discussed with the operator six other mines
they inspect from the Orangeville office.
In the inspector's view, the violation was S & S because
a violation of § 75.400 occurred. Furthe~, there was a measure
of safety involved and, in addition, it was reasonably likely
that an injury could result and that such an injury would be
serious.
Such an injury would involve burns or even a fatality
of the mining crew.
In cross-examination, the inspector agreed that the second
page of the order indicates that the last 40 feet had not been
rock dusted. But there is no requirement to rock dust when within
40 feet of the working face.
In his order the inspector had not
relied on the failure of the operator to provide rock dust within
40 feet of the face.
Section 75.400 requires accumulations to be cleaned up
immediately, but immediately is not otherwise defined in the
MSHA policy manual.
No mention was made of bolting and cutting cycles and the
regulations are in the policy manual. But accumulations are not
defined and the degree of accumulation is a judgment call.

720

You anticipate you will find coal in a mine and the
inspector, when questioned closely, indicated that 30 pieces
of coal lying together would constitute an accumulation.
The inspector believed the amount of coal accumulations
involved here would fill one-third of a 14-ton shuttle car.
Exhibit R-3, page 52, discusses a cleanup program.
approval is not required for a cleanup plan.

MSHA

Inspector Gibson felt there was perceptible air movement.
He did not take any air readings, nor did he take a methane
reading.
It is apparent that the company followed.something in the
nature of a clean up in the area.
UP&L.

FORREST ADDISON, JR. is a fire boss and mine examiner for
He has been on a UMWA safety committee for three years.
On March 20, 1989, he accompanied Inspector Gibson.

Before that date he hadn't seen the company cleanup plan
but he had seen the roof control and ventilation plans.
The miners were not told about the cleanup plan.
He helped the inspector measure the area of the coal
cuttings and took notes. In Addison's opinion a violation of
75.400 existed since there was an excessive accumulation of
coal.
The union also conducted inspections of the 9th East
working section on February 24. At that time they found coal
accumulations behind the curtain from the crosscut back to the
tailpiece. These accumulations were behind the line curtain
(see Exhibit R-4 for UMWA inspection on February 24.)
The committee reported these conditions to the company
but they do not know what action the company took.
First cuttings must be cleaned up before the miners leave
the area.

721

Mr. Addison agrees that an unwarrantable failure existed
because the company should have seen the excessive coal cuttings.
The operator generally removes accumulations from behind the
-curtain during the mining cycle and it appeared to have cleaned
up along the ribs. Coal in the mining sequence is mined for
40 feet by the continuous miner (see Exhibit C-2 for numbered
mining sequence printed on the exhibit).
WILLIAM PONCEROFF, supervisor of the Orangeville field
office, has discussed first cuttings with company officials and
particularly with upper management.
He further discussed cleaning behind the line curtain and
these discussions began in 1988 when they started the two-entry
system. Ponceroff recommended to the company that they keep the
problem under control and the accumulations behind the curtain
had virtually become nonexistent.
In previous discussions the
company had not mentioned their cleanup program.
The first time Mr. Ponceroff saw the operator's cleanup
plan was when Inspector Gibson brought it to him after he
issued his order in the instant case.
In Mr. Ponceroff's view the program does not comply with
75.400.
Inspector Jones had issued the previous citation
(No. 3296223) and the company had been cited for a lack of air
movement at the face.
Further, he had instructed the foremen ·
that they should clean up as they go.

§

Inspector Jones made it clear to the operator that it had
to comply with § 75.316.
MSHA has been consistent in enforcing its policy regarding
removal of first cuttings and he agreed with Gibson's order.
Mr. Ponceroff made it clear to the company that they had
excessive accumulations although he had never given the company
anything in writing.
UP&L's Case
JAMES BEHLING, a safety specialist for UP&L, is a person
experienced in mining. He was traveling with Inspector Gibson
at the time of the inspection. They initially went to the
kitchen area then walked to the transformer in the face area.

722

Normally, the miner helper sets the drilling sites and
that starts the entire mining cycle.
They checked the air, rock dust, and they usually rock
dust the last 40 feet.
They would then cut in the sequence
printed on Exhibit C-2. They make five cuts, then clean the
left side, and then back up and clean the right side.
On the left side there are gouges caused by the continuous
miner because it cannot mine in a straight line. The miner cable
exits on the left side of the continuous miner and, as a result,
the miner cannot get close to the left rib.
Inspector Gibson saw the coal when he walked behind the
line curtain. He said he was going to write a (d)(l) order.
The witness disagrees with the measurements taken by
Inspector Gibson.
(The witness illustrates his point in
Exhibit C-5; he stated that the height and width of the first
cuttings were in fact irregular.)
The witness also felt that there was more rock dust present
than the 'salt-and-pepper' description given by Inspector Gibson.
The area was also wet and there was a water hole (water
hole marked on Exhibit C-2 as 'water hole') which was located
outby the last open crosscut.
In the witness' opinion there was no violation of § 75.400
because the cleanup plan provides how they are to cleap up the
area.
Supervisor Wilson, in charge of this section, told the
witness he cleaned up in the best fashion he could; the graveyard
shift would do the balance.
The witness asked if there was any way for the inspector
to write a citation rather than an order.
Inspector Gibson
replied that he was going to write an order.
The witness' notes indicate that "I showed Don [Gibson]
the cleanup plan and he said he was going to write the order;
he made this statement as he was reviewing the plan."
Gibson wrote the order the following day at 4:00 p.m.

723

The witness did not agree with the S & s designation because
the coal was wet and there was no problem inasmuch as they were
following the cleanup plan. Accumulations would be removed when
the crosscut was broken through (Exhibit C-2 at the top shows a
crosscut not yet broken through and establishes its relation to
the mining face~}
In addition, the witness did not agree with the unwarrantable failure feature.
The section foreman was cleaning the area
and the crosscut had not yet been broken through.
Inspector Gibson said the coal would have to be cleaned up
before the company could proceed with its mining.
The witness asked Gibson if they could roll up the curtain
although they would need acceptable air at the face.
However, in early January the company received a citation
for doing the same thing, that is, rolling up the curtain.
The witness described the instability of burned areas; there
are such areas in 9th East section.
In the witness' opinion, no
violation occurred because the company was following its cleanup
plan.
The witness did not know if the crosscut (located at the_
top of Exhibit C-2) had been cut through as of the date of the
hearing. Under the company's cleanup plan such cuttings could
still be there if the succeeding crosscut had not been cut
through.
Gibson also took notes during his conference.
The line curtain was 3 feet from the rib.
DIXON PEACOCK, a safety engineer for UP&L, identified
Inspector Jones' citation of January 6, 1989, for the violation
of§ 75.316 (Exhibit C-4).
The company was in the process of cleaning the No. 1 entry
when Inspector Jones tested with smoke tubes. He found there
was no air moving and he stated the company had a violation.
They discussed the plan and the the violation because of a
lack of perceptible movement at the face.

724

The maintenance crew had to roll up the brattice to
facilitate the cleaning.
Inspector Jones felt this permitted the face area to be
unventilated. At the time of the Jones' citation the last open
crosscut had not been broken through.
The operator did not contest the Jones' citation. The
last portion of the Jones' citation states as follows:
"(T)he
approved cleanup plan states that the curtain side of the entry
will not be cleaned up until the connecting crosscut has been
made."
After the Jones' citation, Peacock made certain the UP&L
supervisors received a copy of the cleanup plan.
Peacock did not know how Jones had gotten a copy of the
plan. Jones did not state that the plan was inadequate, ineffective or that it would have to be changed.
JOHN c. BOYLEN, JR. is the Mine Manager and responsible as
head of the mine.
Witness Boylen identified the present cleanup plan.
applies throughout the mine.

It

Concerning paragraph 2, the company has spent $2,000,000
for new roof bolting machines and they also use remote control
miners.
Also concerning paragraph 2, the operator uses a line
curtain to keeps miners away from the ribs. In this mine
Mr. Boylen is more concerned about the ribs than he is about
the roof.
If they shovel the area by the ribs they expose their
miners to possible sloughing ribs. As a result they try to
keep the people out of the area and then clean up with the
continuous miner.
The company does not intend to change the cleanup plan
between different sections in the mine. The ribs can become bad
depending upon which section of the mine you were working in.
The ventilation tubing is an alternative to the line
curtain.

725

Mr. Boylen worked for Consol Coal in west Virginia for
18 years where they used vent tubing because of methane and
because of relatively narrow entries.
In Mr. Boylen's view line brattice is safer; the company
does not use tubing.
Tubing uses a fan and the entries in the Cottonwood mine
are 20 feet wide, whereas the entries as the Consol mine were
13 feet wide.
They could not use a fan because that would create turbulence. The entries are higher here.
It is possible to spade
the curtain while standing on the floor.
MSHA has not discussed
ventilation tubing with him.
They have talked to the inspectors about first cuttings
and also about rock dusting the area. Mr. Boylen was familiar
with the order that was issued in this case.
A letter from MSHA District Director said the company
did not have to submit the cleanup plan.
The particular plan,
identified by the witness (Exhibit C-2), was one submitted
to MSHA after the company's initial submission.
Mr. Boylen's only contact with the Jones' citation was
to the effect that the company was not following the cleanup
plan.
The witness did not remember discussions of accumulations
behind the line curtain nor did he remember that they were
discussed on June 30, 1988.
Prior to the (d)(l) order issued in this case the company
was never told its cleanup plan was inadequate.
Mr. Boylen has no plans to change his cleanup plan.
He did not recall discussing the plan with Mr. Ponceroff.
The witness did not go to the section before the condition
was abated. He does not believe the company violated the regulation.
In Mr. Boylen's opinion they could have used the curtain to
remove accumulations, but if you pull out the curtain you disrupt
ventilation.
To facilitate matters you could put an entire new
curtain in the entry.

726

After the order was issued he talked to company supervisor
Wilson and he required the area to be cleaned up when the
connecting crosscut was put through.
The company designed its- cleanup plan for a "worst case"
scenario whereas the roof control plan is a "minimum case"
scenario.
In rebuttal Inspector Gibson identified his notes.
also conferenced the citation on the spot.

He

Inspector Gibson agrees with Mr. Boylen that there is
a need to be consistent in the application of the cleanup plan
as it relates to the condition of the ribs.
In other words,
if the ribs are sloughing in one area, that should be taken
into account in the cleanup plan. In the inspector's view,
accumulations should not be permitted to go 300 feet in length
and 6 inches wide.
The inspector's measurements were taken every 10 feet behind
the curtain.
Discussion
The initial issue centers on whether a violation of
The evidence on this point is essentially
uncontroverted. The regulation in its relative portion provides that "loose coal shall be cleaned up and not permitted
to accumulate in active workings." It is apparent that the
loose coal involved here was of a substantial amount. The
total amount of the coal was estimated at 500 to 800 pounds.
I find the inspector's opinion credible. Permitting 210 feet
of coal to accumulate along the ribs constitutes a violation
of § 75.400. See Old Ben Coal Company, 1 FMSHRC 1954 (1979).
§ 75.400 occurred.

The fact that some of the coal was damp because of water
does not cause me to reach a different conclusion. Any fire
will quickly dry out damp or wet coal.
In addition, the water
hole Cas shown on Exhibit C-2) is a relatively small area in
relation to the total area involved.
Throughout this case UP&L relied on its cleanup plan to
justify its action. However, it is apparent that the cleanup
plan developed pursuant to § 75.400-2 cannot overrule the
mandatory duties required in § 75.400.

727

In short, I agree with the inspector's view that the
cleanup plan is invalid to the extent it conflicts with
s 75.400.
The second issue is whether the violation should be designated as significant and substantial within the meaning of
the Act.
I conclude that such a designation is warranted. The
credible evidence testified to by Inspector Gibson established
this feature of the case within the Commission's guidelines
as expressed in Mathies Coal Company, 6 FMSHRC 1 (1984) and U.S.
Steel Mining Co., 6 FMSHRC 1573-74 (1984); compare Old Ben Coal
Company, supra.
The final issue is whether the violation of the regulation was due to the operator's unwarrantable failure to comply.
In this connection the credible evidence establishes MSHA
and the operator's upper management personnel had discussed the
practice of cleaning first cuttings. In fact, the problem had
been virtually nonexistent.
With this background the operator nevertheless permitted
substantial coal accumulations to exist along the ribs in this
active workings.
In short, the operator chose to ignore S 75.400 and to rely
on its cleanup plan. It did not clean the accumulations, nor did
it intend to clean them until the next connecting crosscut had
been broken through.
It is obvious that a cleanup plan cannot overrule a
mandatory regulation.
In its defense to the issue of unwarrantability, the
operator relies on the Jones' citation and states that it is
faced with the choice of Cl> rolling up the line curtain and
cleaning behind it and then receiving a Jones' citation for
inadequate ventilation at the face; or, (2) receive a Gibson
order for having accumulations behind the curtain.

728

The operator's defense is neither credible nor substantial.
For one thing, the operator could rehang the line curtain at
a point further out from the rib.
In addition, the operator
must have successfully met this problem before. This was the
only section involved. Other sections had been cleaned. In
these other areas coal accumulations were not a problem. As
MSHA's witness Ponceroff indicated the problem of accumulations
behind the curtain had become virtually nonexistent.
Under the operator's scenario once it started to mine the
entry it would begin to accumulate coal.
The accumulation would
not be removed until the next open crosscut was broken through.
In Exhibit C-2 the measured distance between crosscuts is
104 feet. Under these circumstances in excess of 2oa feet of
loose coal would accumulate on both sides of the return entry.
(The excess would be generated by the mining sequence of the
continuous miner). This would be an accumulation prohibited by
§ 75.400.
On the other hand if the circumstances are such that only
the area in the return entry behind the line curtain contained
loose coal then accumulations in excess of 104 feet would
exist.
(The excess again would be generated by the mining
sequence of the continuous miner.) This amount would likewise
be an accumulation prohibited by § 75.400.
The operator's decision to mine in this manner presented
here constitutes an unwarrantable failure to comply with
§ 75.400.
Further, such a failure to comply is aggravated
conduct constituting more than ordinary negligence. Accordingly,
the Commission doctrine expressed in Emery Mining Corporation,
9 FMSHRC 1997, 2004 (1987) is not applicable.
For the foregoing reasons I enter the following:
ORDER
The contest of Order No. 2876489 is dismissed.

Law Judge

729

Distribution:
Susan E. Chetlin, Esq_., Timothy M. Biddle, Esq., Crowell &
Moring, 1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004
(Certified Mail)
Robert Cohen, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Room 418, Arlington, VA 22203
(Certified Mail)
/ot

730

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

22041

APR 2 6 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING

.

ASSOCIATED ELECTRIC
COOPERATIVE INCORPORATED,
Respondent

Docket No. CENT 88-89
A. C. No. 23-00465-03529
Associated Electric
Cooperative Inc. - Mining
Division

DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado, for
the Secretary~
Gene Andereck, Esq., Stockard, Andereck, Hauck,
Sharp & Evans, Springfield, Missouri, for the
Respondent.

Before:

Judge Weisberger

Statement of the case
On June 30, 1988, the Secretary (Petitioner) filed a
Proposal for Penalty seeking the imposition of civil penalties
for alleged violations of 30 C.F.R. § 77.205Ca) and 30 C.F.R.
§ 77.205(b).
An Answer was filed by the Operator (Respondent) on
August.12, 1988. Pursuant to notice, the case was heard in
Springfield, Missouri, on January 24 - 25, 1989. At the hearing,
Larry Greg Maloney, Jackie Williams, Gary Ronchetto, Gary
McQuitty, and Randy McQuay testified for Petitioner. Richard
McClelland, Lennoth Greenwood, and Delbert Gipson testified for
Respondent
The Parties each filed a Post Hearing Brief on April 10,
1989.

731

Stipulations:
1. Associated Electric Cooperative, Inc., is engaged in
mining and selling of coal in the United States, and its mining
operations affect interstate commerce.
2. Associated Electric Cooperative, Inc., is the owner and
operator of Associated Electric Cooperative, Inc., Mine, MSHA I.D.
No. 23-00465.

3. Associated Electric Cooperative, Inc., is subject to the
jurisdiction of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. §§ 801 et seq. ("the Act").
4.

The Administrative Law Judge has jurisdiction in this

matter.
5. The subject citation was properly served by a duly authorized representative of the Secretary upon an agent of Associated
Electric Cooperative, Inc., on the date and place stated herein,
and may be admitted into evidence for the purpose of establishing
its issuance, and not for the truthfulness or relevance of any
statements asserted therein.
6. Associated Electric Cooperative, Inc., is a large mine
operator with 1,707,757 tons of production in 1987.
Citation No. 3035355
Citation
Citation No. 3035355 provides ~s follows:
The three crews to the Bee-veer slurry dredge were
required to travel up & down the approximately 25 ft
high-face to the slurry pit. The slope of the face was
approximately .5 to 1 consisting of unconsolidated
materials and uneven footing. A minimum·of six personnel daily are required to climb the face. The catwalk
had been removed since at least 2/4/88 and only about
3 hours of refabrication and welding had been performed
during that duration •
.Regulations
30 C.F.R. § 77.205(a) provides as follows: "Safe means ot
access shall be provided and maintained to all working places."

732

Findings of Fact and Discussion

I.
Respondent, an electrical generating cooperative, in connection with its Thomas Hill Energy Center operates a surface coal
mine. As part of this operation, two employees on each of
Respondent's three shifts are stationed on a dredge located in a
slurry pond. The dredge, which is moved by cables, cuts coal
from below the surface of the pond, and pumps a mixture of coal
and water to a processing plant. The employees working on the
dredge reach it by way of a rowboat from the shor~.
In general,
these employees reach the rowboat, left at the edge oi the pohd
by t:he previous shift, by traveling by vehicle to the embankment,
and then walldng down to the edge of the pond.
On February 10, 1988, Larry Greg Maloney, pursuant to a
request made under section 103Cg) of the Federal Mine Safety and
Health Act of 1977 (the Act), inspected the above Bee-Vaer Slurry
Impoundment, and noted se~eral sets of foot prints going up and
down the bank to and from the embankment to the pond, in an area
which he estimated as being at an incline of ·.s to 1. He testified, in essence, that in the area where the foot prints were
observed the embankment was approximately 25 feet above the level
of the pond. He testified that in the area where he saw the foot
prints, there was some packed snow, ahd described the ground
material as containing loose unconsolidated granular coal. He
indicated, in essence, that due to the condition of the area in
which he observed the foot prints, and its slope, he did not
consider it a safe access to the pond.
He indicated that there
was no other access to the pond. According to the uncontradicted
testimony of Maloney, there was no catwalk or walkway in any area
from the pond to the top of the embankment.
Lertnoth Greenwood, Respondent's second shift supervisor at
the Bee-Veer Slurry Impoundment, indicated that on February 10,
1988, the employees working on the dredge went from the embankment to the pond by way of a ravine, which he.indicated was to
the left of the access area denoted by Maloney, and then walked
along the edge of the water to the rowboat.
He opined that this
means of access was safe. He indicated that on Feb.ruary 9 - 10,
1988, he observed the workers from the first shift returning from
the dredge coming up the bank in the same general area as the
ravine.
On cross-examination, he indicated that the ravine was
approximately 20 feet above the pond, at a slope of about a 30 to
45 degree angle, and that there was snow in the ravine on
February 10, 1988.
Gary Ronchetto, a welder working for Respondent, who is a
member of the UMWA's Safety Committee, testified on crossexamination, in essence, that on February 10, it was possible to

733

go from the embankment to the pond at different places, but on
redirect examination indicated that he did not see any areas he
considered safe as an access down to the pond. Ronchetto
. described the material between the embankment and the pond as a
slurry made out of coal and earth and said on February 10, the
bank was "slick across it" (Tr. 187).
Gary McQuitty, who was Respondent's dredge helper in January
and February 1988, had the responsibility of working on Lhe
dredge on the first shift. He indicated that on February 10,
1988, he went from the top of the bank to the pond along a clay
road which was "more stable than the slimy fill" (Tr. 271), and
which he denoted was located at a point to the right of the areas
denoted by Maloney. He indicated that during the day, if it
warmed up, the frozen material on the road would thaw and become
"pretty slick" (Tr. 277). He said that the top of the clay road
was 20 to 25 feet above the pond and was at slope of .5 to 1. He
said that in February 1988, he described the footing going down
to the pond, as "extremely treacherous," that the angle of
descent was "steep," and he would slip and slide to the edge of
the water (Tr. 279). He said that there was no other way to get
down the embankment to the pond.
I find that on February 10, 1988, access to the pond, from
the embankment, was only by way of the area taken_ by McQuitty. I
observed McQuitty's demeanor and found his testimony credible.
Also, inasmuch as McQuitty's sole responsibility was working on
the dredge, I place more weight on his testimony with regard to
the route taken rather than the testimony of Greenwood, who had
other responsibilities in addition (at times) to being on the
dredge, and could not recall if he drove men out to the embankment on February 9. He also could not recall if McQuitty worked
on his shift on February 9 - 10, 1988. I adopt the testimony of
Maloney that, in essence, there was only one access to the pond
on February 10 as, in essence, it was corroborated by Ronchetto.
I adopt Maloney's testimony with regard to the hazards occasioned
by the steep angle of the access areas, inasmuch as it was
corroborated by Ronchetto. Also, I found persuasive, the
testimony of McQuitty, who went daily from the embankment top to
the pond and back, that the access was "extremely treacherous"
(Tr. 279), and in February 1988, he would slip and slide going
from the top to the pond. Also, although Greenwood indicated
that access to the pond by way of the ravine was safe, he nonetheless characterized the slope as being between 35 to 45 degrees,
and indicated that on February 10, 1988, there was snow in the
ravine. For these reasons, I conclude that on February 10, 1988,
there was no safe access provided from the embankment top to the

734

edge of the pond, where a row boat could be utilized to go to t.he
dredge, the working site of two men per shift. As such, I find
that Respondent herein has violated section 77.205Ca> 1 ·supra.~/
II.
Taking into account the steepness of the slope of the access
to the pond, as well as its slick and snow-covered condition as
discussed above, I., infra, along with McQuitty's testimony that
the footing was extremely treacherous, and in going up and down
the slope he would slip and slide, I conclude that the violation
herein contributed to the hazard of slipping and falling into the
water which had been estimated by McQuitty to be 15 to 20 feet
deep. Access from the einbanlttnent top to the impoundment below,
is utilized daily by two miners on each of the three daily shifts
going from the embanlcment to the pond and then returning.
According to McQuitty, in the month of January 1988, ver'lin Niece
lost his footing going down the bank to the pond to work on the
dredge, and slid into the water up to his knees and had to be
pulled out.~/ Taking these factors into account, I conclude that

I/ In essence, it is the Respondent's position that its Board of
Directors, as indicated in a safety manual provided to all
employees, CR-6), that it is dedicated to operate in accord with
accepted safety rules and procedures, and that its employees, in
the safety manual, are specifically told not to work "nea~.or
under dangerous highwalls or banks," and that they're not
permitted to walk in any area at or near a surge or storage pile
while a reclaiming operation may expose them to a hazard. CR-6,
37, 41). As such, Respondent argues that any employee faced with
the hazard of traveling from the embankmenl: top to the pond, to
reach a work site on the dredge, had the option of refusing to
work and being exposed to a hazard pursuant to company policy. I
do not find merit to Respondent's argument. It is the
Respondent's responsibility to adhere to all relevant regulations.
Inasmuch as the evidence e~tablishes that Respondent failed to
provide a safe means of access from the embaniment top to the
working area on the dredge, it must be concluded that Respondent
herein violated section 77.205(a).
I have adopted this testimony as there is nothing in the
to contradict it. I have taken into account the
acknowledgment by Lennoth Greenwood, Respondent's second shitt
foreman, that prior to February 9, 1988, he did not know of any
employee having fallen down the embankment. I find that the lack.
of knowledge on Greenwood's part does not by itself rebut
McQuitty's testimony.
2/

~ecocd

735

due to the violation herein, the hazard of an employee slipping
and falling while asc~nding or descending the access to the
impoundm~nt, was reasonably likely to occur.
McQuitty testified
that the impoundment water was extremely cold, and was 15 to 20
feet deep.
He also indicated that normally employees working on
the dredge leave their life jackets in the rowboat, and usually
wear heavy boots and coats. Accordingly, he opined that it would
be difficult for one to stay afloat after falling into the
impoundment. None of McQuitty's statements have been rebutted or
contradicted. Accordingly, I find that, due to the hazard
created herein, as consequence of the violation, there was a
reasonable likelihood of the occurrence of a reasonably serious
injury. Accordingly, I conclude that the violation herein was
significant and substantial.3/ (Mathies coal Co., 6 FMSHRC 1,
(January 1984)).
III.

According to Greenwood, prior to the issuance of the instant
citation, he was not confronted with the specific "issue" (Tr. 345)
of the difficulty of access up and down the embankment. However,
McQuitty, who worked oo the dredge on the first shift, indicated
that on "numerous different occasions" he told management there
were problems with the access (Tr. 282). Furthermore, Ronchetto
indicated that, in his capacity as member of the safety committee,
·sometime between Christmas 1987, and January 1988, he received
complaints from the dredge crew that the walkway was out, and
pursuant to these complaints, told Bill King, the day shift supervisor, that the diedge crew did not have a safe access. According
to Ronchetto, and corroborated by McQuitty, later that day
Ronchetto called Sam Laws, superintendent to the preparation plant
and slurry impoundment, and advised him that the men needed a safe
access. Ronchetto. indicated that Laws told him he would try to
take care of it. Ronchetto said that he then confronted David
Moehle who said that he would look into it. According to
Ronchetto, on January 7, 1988, he looked up at the walkway along
with Moehle, and described it as having a steep angle, and not
having any cleats. He said that at the steep·angle there was no
adequate footing. Ronchetto testified that he then told Moehle
that the walkway needed cleats, and Moehle said that he understood
and would try to take care of it.
In essence, Rochetto's testimony
was corroborated by Randy McQuay, another safety committee member,
who also was present.

3/ In reaching this conclusion, I have taken into account
Respondent's evidence on this point which essentially consists of
the testimony of Greenwood that the access was "safe." However,
in evaluating the condition of the access, and the gravity of the
violation herein, I place more weight on the testimony of Maloney
and McQuitty as analyzed above, I. and II., infra.

736

According to McQuitty, between January and February 1988,
the walkway was taken in and out continuously, and one end was so
steep that ice would accumulate on it. According to McQuitty and
Greenwood, the walkway had been removed approximately 4 days
prior to the issuance of the citation. Some welding work was
then performed on the walkway. But according to Maloney who
observed it at the Preparation Plant on the date of the citation,
only a quarter of its distance had steps and he indicated it did
not have any cleats. This testimony does not appear to have been
contradicted by Greenwood, who indicated that prior to the
citation, the walkw~y did not have all its cleats. On
February 9, 1988, at a safety committee meeting, according to
Ronchetto and corroborated by McQuay, Moehle was again informed
that there was no safe access, and he responded that he would
look into it, and that they were still working in it.
Based on the above, I conclude that at least as early as
January 7, 1988, management was made aware of the employees'
complaints with regard to safe access.
Indeed, Ronchetto's testimony was uncontradicted that on January 7, Moehle observed the
condition, and indicated that he understood it and would try and
to do something about it. Although efforts may have been made to
ensure safe access by way of a walkway, the evidence indicates
that ~hen the walkway was installed it still did not provide safe
access. Further, although efforts may have been made to improve
the walkway, by welding material on it, I find that as of the
date of the citation, February 10, Respondent had failed to
install sufficient cleats to ensure safe access by way of the
wall{way. Thus,. taking all of the above into account, I find that
Respondent's conduct herein was more than ordinary negligence,
and constituted aggravated conduct. As such, I conclude that the
violation herein resulted from Respondent's unwarrantable failure.
(See, Emery Mining Corp., 9 FMSHRC 1197 (December 1987)).

IV
Based on the factors discussed above, II., infra, I conclude
that the gr~vity of the violation herein was ielatively high.
For the reason set forth above, (III., infra), I conclude that
Respondent herein acted with a high degree of negligence. Taking
these conclusions into account, as well as the remaining
statutory factors stipulated to by the Parties, as well as the
history of Respondent's violations, as contained in Government
Exhibit P-1, I conclude that a penalty herein of $500 is
appropriate.
Citation No. 3035356
On February 11, 1988, Citation No. 3035356 was issued which
provides as follows:

737

Air hoses and drop cords were lying on the floor
in five locations. Machine parts, tools, hoses
expanded metal and other miscellaneous materials were
on the floor between six of the bay doors creating
stumbling hazards.
Regulation
30 C.F.R. § 77.205Cb), provides as follows:
Travel ways and platforms or other means of access
to areas where persons are required to travel or work,
shall be kept clear of all extraneous material and
other stumbling or slipping hazards.
Findings of Fact and Discussion

I.
Respondent operates a maintenance shop which was built in
approximately March 1983. The interior of the shop contains one
wash bay and six work bays. Each bay has a door on each side to
accommodate large pieces of equipment including 160 ton trucks
that are worked on in the bays. A tire repairman, one shop
laborer, one welder, and 13 mechanics work in the shop.
According to Maloney, Cas depicted on Government Exhibit P-3),
when he inspected the premises, on February 11, 1988, he observed
air hoses, drop cords, machine parts, tools, and expanded metal,
at various locations on the floor. He also testified that an
exit door was completely blocked by hoses. In essence, he said
that in the middle of the shop where support beams were located
there were tools, hoses, and drop cords, which created a safety
hazard, and which he had to step over. He said that, in general,
there were hoses in the area where personnel were not located.
Delbert Gipson, Respondent's truck and tractor day shift
supervisor, testified that, in general, the material observed by
Maloney are items utilized by the workers at the shop. Thus, he
said that the air hoses are used to operate the air wrenches and
blow out dirt, and the extension cords are used for the lights.
He said that generally, engines that have to be repaired are left
in a broken condition while awaiting parts. He was asked whether
the material on the floor created any stumbling hazard and he
indicated that there were probably parts mechanics laid on the
floor around where they work, and that these are items that
mechanics "live with every day" (Tr. 364). He indicated
essentially that the material was not out of the ordinary and
that 11 1nost of the 1nate.rial" was being used (Tr. 364). In a
similar fashion Maloney agreed on cross-examination, that air
hoses and chains are used in making repairs and that in small
quantities expanded metal is also used in the shop.

738

It appears to be Respondent's position, based upon the
testimony of Gipson, that no violation should be found herein
inasmuch as the materials in question are either utilized by
Respondent's mechanics or left in place pending receipt of the
replacement part£, and that having material on the floor is part
of Respondent's normal operation.
I do not find merit to
Respondent's argument. I note that section 77.205Cb), supra,
requires travel ways and platforms or other means of access to
areas where persons are required to work "shall be kept clear, of
• • • other stu~bling or slipping hazards." Based on Maloney's
testimony I find that the materials in question, located on the
shop floor, were in areas where employees at the shop would have
to walk to go to various work bays, and to go to the bathroom
from the bays.
I find Maloney's testimony credible that the
materials on the floor constituted stumbling or slipping hazards,
as his testimony was essentially corroborated by Jackie Williams,
Respondent's mechanic who worked in the shop. In this
connection, it was essentially Williams' uncontradicted testimony
that there were bolts, nuts, and wheel bearings lying around and
that he could hardly get around as he had to step over these
materials.
Indeed, he indicated that a motor that had its parts
taken out, had been sitting on the floor for about a month before
it was taken out by him and another employee to abate the above
citation. Also, the testimony of Maloney was corroborated by
Ronchetto, who also observed the conditions on February 11, and
indicated he was not able to go from one place to another without
going around materials and crawling over them. Also Gipson
admitted on cross-examination that there were "probably" some air
hoses and trouble lights "strung out" at an exit (Tr. 368, 369).
Although he indicated that, in his opinion, on February 11, the
accumulation of material was not too bad to walk around,
nonetheless he indicated that it "probably" did need to be
cleaned up (Tr. 376). Thus, I find Respondent herein violated
section 77.205(b), supra.~/

~/ I note that section 77.205Cb), supra, by a plain reading of
Its language, does not explicitly allow for the accumulation of
materials constituting a stumbling or slipping hazard if the
materials accumulate in the ordinary course of the operation, or
are used in the operation. To read such an exclusion into
section 77.205Cb), would be unduly restrictive and would render
meaningless the protective intent behind this regulation. I also
have considered Respondent's arguments set forth in its Post
Hearing Brief. I do not find merit to these arguments, for the
reasons set forth in footnote 1, infra.

739

II.
According to Maloney, the stumbling hazard created by the
accumulation of materials could result in an injury. It was his
opinion that an injury occasioned by a fall to the concrete
surface could range from a bruise to a broken member. Williams
indicated that he had to step over the material and he could have
stepped on a ball bearing. Ronchetto indicated a stumbling,
tripping, and falling hazard and opined that in falling one could
hit one's head against a beam, part, or heavy equipinent.
Taking into account the number of employees at the shop, the
cluttered nature of the material on .the floor, and the need to
crawl over it, as established by Petitioner's witnesses, I find
that the violation h~rein contributed to a discrete safety hazard
of stu1nbling or falling.
I also find, based on the these factors
and taking into account the presence of tools, equipment, and
beams there existed a reasonable likelihood that the hazard of
.stu:noling or falling would :result in an injury. Maloney
indicated that the injury could range· from a bruise to a broken
member. Ronchetto indicated that a person falling could hit
his head against a beam or heavy equipment. It is clear a
serious injury could result, however, inasmuch as there is no
evidence before me relating to any specific distance between any
of the materials constituting a hazard, and any sharp or hard
object, I must concl~de that it has not been established that
there is any reasonable likelihood that the injury resulting from
the hazard of slipping or falling would be of a reasonably
serious nature~· Accordingly, I must conclude that it has not
been established that the violation herein is significant and
substantial (See, Mathis Coal Co., supra).

III.
According to the uncontradicted testimony of Williams, the
same conditions observed on February 11, were in existence the
day before, and had existed for approximately .3 weeks prior to
the citation. Although Gipson indicated that in his opinion the
material was not too bad to walk around, he did indicate it
probably did need cleaning up on February 11. Also, it was
Ronchetto's uncontradicted testimony that at a February 9, 1988,
meeting at which time Moehle was present, he (Ronchetto) told
Moehle that there was an accumulation of parts and hoses, and
that Moehle indicated that he would try and take care of it. The
extent of the accumulation of th~ material is indic:ited by the
testimony of Williams that, in abating the citation, he and six
or seven other employees worked the entire shift to clean up but
did not E inish. Based on the above, t conclude that the ac.::u.111ulation of material was considerable and existed for a significant

740

period prior to February 11, 1988, and that at least as of
February 9, 1988, Respondent's management was aware of this
condition. As such, I find that Respondent acted with a
moderately high degree of negligence in not having the material
cited by Maloney cleaned up prior to February 11. Also, as
discussed above, I conclude that the violation herein was
moderately serious as it could have resulted in a person
stumbling and injuring himself. In assessing a penalty, I have
also taken into consideration the various factors of llOCi) of
the Act, and the history of violations as indicated in
Government's Exhibit P-1. Taking all these factors into account,
I conclude that a penalty herein of $150 is appropriate.
ORDER
Respondent shall, within 30 days of this Decision, pay the
sum of $650 as a civil penalty for the violations found herein.

£_,~

Avram Weisberger
Administrative Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U. s. Department of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)
Gene Andereck, Esq., Stockard, Andereck, Hanek, Sharp & Evens,
1111 s. Glenstone, P. O. Box 4929, Springfield, MO 65808
(Certified Mail)
dcp

741

ADMINISTRATIVE LAW JUDGE ORDERS

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

April 21, 1989

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

v.
CALSPAR DIVISION,
Respondent

CIVIL PENALTY PROCEEDING
:
:

Docket No. WEST 88-347-M
A. C. No. 04-04114-05511

.

Calspar Mine

.

DECISION DISAPPROVING SETTLEMENTS
ORDER TO SUBMIT INFORMATION
Before:

Judge Merlin

This case is a petition for the imposition of civil
penalties for nine citations originally assessed at $497. The
Solicitor recommends substantial reductions for all the violations with the proposed settlements totaling $248.50 As set
forth herein, I am unable to approve the suggested settlements
based upon the present record.
Citation Nos. 3070370, ~070371) 3070372,
3070373 and 3070377
These citations were issued for violations of 30 C.F.R.
56.14001 because head pulleys, tail pulleys and chain and belt
drives on various pieces of equipment were not guarded. Each
penalty was originally assessed at $63 and the proposed settlement for each violation is $31.50. The inspector designated all
the violations as significant and substantial and he described
gravity as reasonably likely to result in permanent disability.
Negligence was assessed as moderate.
§

The Solicitor offers no support for his proposed settlements
and for· his assertion "that .the proposed settlement amount • • •
is reasonabl~ and will effectuate the deterrent purpose of civil
money asses6ments for violations of the Act . . • ". Without some
justification I cannot approve such small penalty amounts, when
the description 0£ the violations as S & S and resulting from
negligence remains unchanged. Moreover, the proposals represent
50% reductions from the original amounts which were modest to
begin with.

743

Citation Nos. 3070375 and 3070376
These citations were issued for violations of 30 C.F.R.
§ 56.12032 because cover plates were not in place on two junction boxes. Each penalty was originally assessed at $20 and the
proposed settlements for each violation are $10. The violations
were designated as non-significant and substantial with gravity
described as unlikely to result in lost workdays. Negligence was
assessed as moderate.
The Solicitor offers no support for his proposed settlements
or for his assertion "that the proposed settlement amount • • • is
reasonable and will effectuate the deterrent purpose of civil
money assessments for violations of the Act • • • ". The $20
single penalty assessment is the very modest amount usually
imposed for non-serious violations. The Solicitor advances no
reasons why these small amounts should be further reduced by half.
Citation No. 3070378
This citation was issued for a violation of 30 C.F.R.
§ 56.12032 because an electrical conductor leaving a fuse box was

not properly bushed and that the top electrical tray of the junction box was not covered. The penalty was originally assessed at
$79 and the proposed settlement is for $39.50. The violation is
designated as significant and substantial with gravity described
as reasonably likely to result in a fatality.
Negligence is
described as moderate.
The Solicitor offers no support for his proposed settlement
or for his assertion "that the proposed settlement amount. • • is
reasonable and will effectuate the deterrent purpose of civil
money assessments for violations of the Act • . • ". Without such
support I cannot approve such a small penalty, which represents a
50% reduction from the original amount when the gravity of a projected injury is fatal and the description of it as S & S and
resulting from negligence remains unchanged. Under such
circumstances the original assessment appears modest indeed.
Citation No. 3070379
This citation was issued for a violation of 30 C.F.R.
§ 56.14003_because a multiple V-belt drive was not adequately

guarde_d. __ The penalty was or.iginally assessed at $63 and the proposed settl~ment is for $31.50. The inspector designated the
violation as- significant and substantial and he described gravity
as reasonably likely to result in permanent disability.
Negligence was assessed as moderate.

744

The Solicitor offers no support for his proposed settlement
or for his assertion "that the proposed settlement. • • is reasonable and will effectuate the deterrent purpose of civil money
assessments for violations of the Act • • • ". Without some justification I cannot approve such a small penalty, when the description of the violation as S & S and resulting from negligence
remains unchanged.
Here too, the settlement represents a 50%
reduction from the original amount, which was modest to begin
with.
Discussion of Settlement Disapprovals
It is well established that penalty proceedings before the
Commission are de novo.
Neither the Commission nor its Judges
are bound by the-secretary's regulations or proposed penalties.
Rather, they must determine the appropriate amount of penalty, if
any, in accordance with the six criteria set forth in section
llOCi) of the Act.
30 u. S. C. § 820Ci).
Sellersburg Stone
Company v. Federal Mine Safety and Health Review Commission,
736 F.2d 1147, (7th Cir. 1984). Wilmot Mining Company, 9 FMSHRC
686 (April 1987). U. S. Steel, 6 FMSHRC 1148 (May 1984).
The Commission and its Judges bear a heavy responsibility in
settlement cases pursuant to section llOCk) of the Act, 30
U.S. c. § 820Ck), which provides:
Ck) No proposed penalty which has been
contested before the Commission under section
105(a) shall be compromised, mitigated, or
settled except which the approval of the
Commission. * * *
The legislative history makes clear
Congress' intent in this respect: See s. Rep.
No. 95-181, 95th Cong., 1st Sess.,~-45
(1977), reprinted in Senate Subcommittee on
Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977,
at 632-633 Cl978>.
In order to support his settlement recommendations, the
Solicitor must present the Commission Judge with information
sufficient to satisfy the six statutory criteria in section
llOCi) with respect to the instant citations.
I accept the
Solicitor's statistics regarding history and in absence of any
evidence to contrary, I accept his representations regarding good
faith abatement and ability to continue in business.
As already set forth, the information furnished by the
Solicitor with respect to the violations which were not single
penalty assessments, indicates substantial gravity.
Also, the

745

single penalty assessments are already low. The Solicitor cannot
obtain 50% penalty reductions without supporting his request with
facts and explanations. Nowhere does the Solicitor discuss the
factual circumstances for the subject citations.
ORDER
In light of .the foregoing, it is ORDERED that the
recommended settlements be Disapproved.
It is further ORDERED that within 30 days from the date of
this order, the Solicitor submit sufficient information for me to
make proper settlement determinations under the Act.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Felix J. Catena, Esq., Office of the Solicitor, u. s. Department
of Labor, Room 3247 Federal Building, 300 North Los Angeles
Street, Los Angeles, CA 90012 (Certified Mail)
Mr. Louis Ramirez, Division Manager, Calspar Division, Steelhead
Resources, Inc., 12402 Los Nietos Road, Santa Fe Springs, CA
90670 (Certified Mail)
Thomas Mascolino, Esq., Counsel, Trial Litigation, Office of the
Solicitor, U. s. Department of Labor, 4015 Wilson Boulevard, Room
414, Arlington, VA 22203 CHandcarried)
/gl

*

U.S. GOVERNMENT PRINTING OFFICE: 198~ 2 I+ 1 - 1 5 5 ! 0 I+ 7 5 5

746