AUGUST 1997

COMMISSION DECISIONS
08-06-97
08-11-97
08-18-97

Faith Coal Company
Jim Walter Resources, Inc.
Peabody c'o al Company

SE
91-97
SE
94-244-R
KENT 93~369

Pg. 1357
Pg. 1377
Pg . . 1381

WES.T ~~-~~8
WEST 9~-80
WEST ~6-2~$

pg.
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pg,
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pg.
pg.
Pg,

APMINIST&AIIYE LAW JUPGE DECI~ION$
08-06-97
08-11-97
08-13-97
08-14-97
08-15-97
08-20-97
08-26-97
08-29-97

Western Fuels-Utah, Inc.
Basin Resources, Inc.
White Oak Mining & Construction Co.
Pewey Hubbard, employed by Alpha Minin~
F. Palumbo Sand & Gravel
wayne R. Steen employed by Ambrosia Coal
Basin Resources, Inc.
Costain Coal Incorporated

i

l<ENT 94-~~~3
YORl< ~6~6'7,...M
PENN ~4-:1.!?

WES'f ~~,79
KENT n .. ~~

1369
139l.
1414
1437
1440
147l
1477
1485

AVGUST

1997

There were no cases filed in w~ich review was granted or denied.

ii

COMMISSION DECISION~

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

August 6, 1997

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

v.

Docket No. SE 91-97, etc.

FAITH COAL COMPANY
BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners
DECISION
BY: Jordan, Chairman; and Marks, Commissioner
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is whether Faith Coal
Company ("Faith") violated 30 C.F.R. § 75.202.(a) by failing to properly support the roof in an
area where a person or persons worked or traveled; whether a citation alleging that Faith
improperly operated a scoop loader with an inoperative methane monitor was properly vacated
on the ground that the citation alleged a violati~n of the wrong standard and was never amended
to allege a violation of the correct standard; whether Faith violated 30 C.P.R.§ 7S.220 by failing·
to comply with a supplemental requirement of its roof control plan to set cribs prior to splitting a
pillar; whether Faith's violation of section 75.220, involving cuts of exces5ive length.and a
crosscut driven into an area of unsupported roof, was the result of its unwarrantable failure to
comply with its ro·o f control plan; and whether Faith violated 30 C.P.R. § 75.203(b) by failing to
use sightlines to control the direction of mining. Administrative Law Judge David Barbour
concluded that the Secretary of Labor had not established a violation of section 75.203(b); that
Faith had committed a violation of section 75.202(a); and that Faith had committed two
significant and substantial ("S&S") violations of section 75.220, one of which was also
unwarrantable. 17 FMSHRC 1146, 1155-56, 1190-91, 1195-97, 1202 (July i995) (ALJ). The
judge also vacated the citation involving the inoperable methalie monitor on the ground that it
alleged a violation of the wrong standard. Jd at 1183, 1224. The Commission granted cross-

1357

petitions for discreti~~~- r~~ie~ fil~d
the Sec~~i~ ~d F;uth·~halie~ging these
1
determinations. For the reasons that follow, we affirm in part, reverse in part, and remand.
.
.

.by

I.
Citation No. 3396045
A.

Facts and ;procedural Back~round

Faith formerly o~rated the No. 15 Mine, an underground coal mine in Sequatchie
County, Tennessee. 17 FMSHRC at 1148-49; Gov't Ex. 4 at 1. On March 2, 1992, Inspector
Clyde Layne from the Department of Labor's Mine Safety and Health Administration (" MSHA")
inspected an entry at the No. 15 Mine that was being cleaned for the installation of a belt
conveyor. 17 FMSHRC at 1154. Layne observed an area of roof where the spacing of roof bolts
exceeded the 5-foot limit specified in _Faith's roof control plan. ld. Several roof bolts were
placed as far as 9 feet apart. ld 2 Although the area had a low ceiling, and thus could only be
traveled by crawling, Layne observed tracks on the floor indicating that people had traveled
through the area. Id. Layne issued a citation alleging a violation of section 75.202(a).3 Id. ; Tr.
III at 568-69; Jt. Ex. 16.4

.
·In its petition for discretionary review, Faith also raised an issue with respect to a
recommendation for settlement suggested by the judge concerning a reduction in the amount of
penalties assessed against it. t'7 FMSHRC at 1207; F. Pet. at 1-5. The judge's suggestion, which
was gratuitous and not bincling, was rejected by counsel for the SecretarY as a basis for
settlement. Accordingly, this issue is not before us and we decline to address it.
1

2

These roof bolts had been installed by a previous operator of the mine. 17 FMSHRC at
1154. When Faith too~ over the operation of the mine, this area had been "gobbed out," making
travel through it impossible. Id. Faith tater cleared away the gob material, making the area
passable. ld
3

Section 75.202(a) provides:
The roof, face and ribs of areas where persons work or travel shall
be supported or otherwise controlled to protect persons from
~azards related to falls·ofthe roof, face ·o~ ribs ....

4

The hearing in these consolidated cases was conducted on May 23-26, 1994, and on
August 9-10, 1994. The following references are used to refer to the transcripts from the
designated hearing dates: "Tr. I"- May 23; "Tr. II'' - May 24; "Tr. III"- May 25; "Tr. IV"
-May 26; "Tr. V" - August 9; "Tr. VI" - August 10.

1358

The judge concluded that the Secretary had established a violation of section 75.202(a) by
demonstrating that the roof was not properly supported in an area of the mine where a person or
persons worked or traveled. 17 FMSHRC at 1155-56. The judge relied upon admissions by
Lonnie Stockwell, Faith's owner, that he traveled through the area and that the roof bolts in the
area were not spaced as required by Faith's approved roof control plan. Id
B.

Dis.position

Faith contends that the judge erred in fmding a violation of section 75.202(a) because
Stockwell only traveled into the affected area on one occasion in order to comply with applicable
MSHA preshift requirements. F. Br. II at 8-9.5 The Secretary argues that the judge's fmding of a
section 75.202(a) violation is supported by substantial evidence. S. Br. ll at 18-19.6
We conclude that the judge's factual findings are supported by substantial evidence,' and
affirm his conclusion that Faith violated section 75.202(a). It is undisputed that the spacing of
the roof bolts in this area of the mine exceeded the five foot limit specified in Faith's roof control
plan. Therefore, the dispositive issue is whether persons worked or traveled in the area.
Stockwell testified that he crawled through this area on at least one occasion, when Faith began
rehabilitating the entry. 17 FMSHRC at 1155. Even assuming that, as Stockwell suggested, he
was the only person to travel through this area, this admission is sufficient to establish a
violation. The fact that Stockwell may have traveled through the area in order to comply with
preshift inspection requirements does not create a basis for an exemption from the requirements
of section 75.202(a).

5

"F. Br." refers to Faith's brief concerning issues raised in the Secretary's petition for
discretionary review, which was received by the Commission on February 1, 1996. "F. Br. II"
refers to the brief filed by Faith on July 27, 1996, in response to the Secretary's brief dated
June 17, 1996. Faith had previously designated its petition as its brief on review. Faith is
represented in this proceeding by its owner, Lonnie Stockwell, without the assistance of counsel.
6

"S. Br." refers to the brief filed by the Secretary on October I 8, 1995, involving issues
raised in her petition for discretionary review. "S. Br. II" refers to the brief filed by the Secretary
on June 17, 1996, concerning issues raised by Faith in its petition.
7

The Commission is bound by the terms of the Mine Act to apply the substantial
evidence test when reviewing an administrative law judge's factual determinations. 30 U.S.C.
§ 823(d)(2)(A)(ii)(l). The term "substantial evidence" means "such relevant evidence as a
reasonable mind might accept as adequate to support [the judge's] conclusion." Rochester &
Pillsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197,229 (1938)).

1359

II.
Citation No. 320233 7
A.

factual and Procedural Backwund

On June 7, 1993, MSHA Inspector Jolmny McDaniel observed that a scoop loader
loading coal at the No. 15 Mine did not appear to have an operative methane monitor. 17
FMSHRC at 1182; Tr. II .412-14. When McDaniel tested the monitor with the test button, the
loader did not deenergize, confirming that the monitor was not operating properly. 17 FMSHRC
at 1182; Tr. II 413. Faith owner Stockwell later arrived on the scene and explained to McDaniel
that the monitor had been "jumped out," meaning that the monitor' s shut-off mechanism had
been bypassed electronically to allow the loader to operate regardless of whether methane was
present. 17 FMSHRC at 1182.
McDaniel issued a ~itation alleging that Faith used a scoop loader without a functioning
methane monitor to load coal, in violation of30 C.F.R § 75.313. !d. at 1181-82; Tr. II at 41112; Jt. Ex. 62. This citation alleged a violation of the wrong standard, however, since section
75.313, which had previously applied to methane monitors (see 30 C.F.R § 75.313 (1991)), had
been amended in November 1992 to apply to mine fan stoppages when persons are underground.
At that time, MSHA renumbered the methane monitor provision as 30 C.F.R. § 75.342(a).8 This
error in citing an inapplicable standard was not addressed at the hearing, and was perpetuated in
the Secretary' s post-hearing briefto the judge. SeeS. Post-Trial Br. at 145.
The judge vacated this citation on the ground that it alleged a violation of the wrong
standard, and was never modified to allege a violation of the correct standard. 17 FMSHRC at
1183. The judge found that the Secretary had not established a violation of section 75.313, the
mine fan stoppage standard referred to in the citation. ld Noting that the citation was based
upon an allegedly inoperable methane monitor on the loader, which falls within the coverage of
section 75.342(a)(4),9 the judge found the citation defective because it did not allege a violation
8

This change occurred in connection with the reorganization of Subpart D of the
Secretary' s Part 75 regulations, dealing with ventilation issues, which took effect in November
1992 (delayed from August 1992). See 57 Fed. Reg. 34,683 (1992); 57 Fed. Reg. 20,868 (1992).
9

Section 75.342(a) provides in relevant part:
(1) MSHA approved methane monitors shall be installed
on all face cutting machines, continuous miners, longwall face
equipment, loading machines, and other mechanized equipment
used to extract or load coal within the working place.

1360

of the proper standard. ld The judge vacated the citation b~ed upon the "axiom of due process
that a respondent must be advised correctly of the standard it is alleged to have violated." ld
B.

Di~osition

The Secretary asserts the judge erred because the record establishes that Faith had actual
notice ofthe violative conduct and standard alleged and therefore it was not prejudiced. S. Br. at
17-21. The Secretary further asserts that Faith in effect conceded this violation when Stockwell
testified that he deliberately ''jumped out" the methane monitor on the scoop loader to pennit the
machine to operate. /d. at 18, 20-21.
·
Faith contends that the citation was properly vacated by the judge because it alleged a
violation of the wrong standard, and the Secretary failed to amend the citation to cite the correct
standard. F. Br. at 16-17. Faith also contends that its use of a scoop loader with an inoperable
methane monitor did not violate section 75.342(a) because it was not using the scoop loader to
load coal at the time the citation was issued. Id at 16-20.
There is no question that the Secretary erred by failing to move to amend the citation to
charge a violation of the correct standard either at trial or in a post hearing submission. We
expect the Secretary and her counsel not only to know the content of regulations promulgated and
enforced by the Department of Labor, but to submit only the most careful and accurate pleadings
in litigation before this Commission. Here, the Secretary's error is particularly egregious in light
of the fact that renumbering of the regulation addressing methane monitors was announced in a
final rule over two and a halfyears before the Secretary's post-hearing brief was filed on
December 7, 1994, a brief which, as noted above, perpetuated the error of citing an inapplicable
standard. See 57 Fed. Reg. 20,868 (May 15, 1992 publication offmal rule amending Part 75,
Subpart D); see also 51 Fed Reg. 34,683, 34,684 (August 6 notice announcing delay of effective .
date of final rule from August 16 until November 16, 1992 "to ensure that mine operators can
effectively plan and implement the necessary changes").
The first indication in the record that anyone was aware of the Secretary's error appears in
the judge's decision. When he discovered the Secretary's error, the judge should have issued an
order directing the Secretary to show cause why the citation should not be amended to conform
to the evidence and charge a violation of the applicable standard. This would have afforded Faith
the opportunity to show legally recognizable prejudice. More importantly, it probably would
have resolved this question at an earlier stage of these proceedings, and thus, would have avoided
·
the need for further proceedings and delar.

(4) Methane monitors shall be maintained in pennissible
and proper operating condition .. . .

1361

The judge' s failure to mclke this inquiry, however, dqes not require that we remand to
correct this particular error. Instead,' we conclude that Faith suffered no prejudice because the
company fully, understood the gravamen of the violation charged and knowingly litigated the
citation on that basis, and we further conclude that the judge erred by vacating the citation on the
basis of the Secretary's pleading error.
This result is in accord with Rule 15(b) of the Federal Rules of Civil Procedure, which
provides for conformance of pleadings to the evidence adduced at trial, and permits the
adjudication of issues aciually litigated by the parties irrespective of pleading deficiencies.10
Here the record demonstrates that Stockwell, who represented Faith d\,lring most of the hearing,
understood the nature of the violation charged and litigated the case on that basis. See Tr. II 41228. Indeed, at the hearing, Stockwell sought to develop a defense- that the loader was not used
to load coal while the methane mqnitor was not functioning - that is consistent with the
language of section 75.342(a), the applicable standard. Tr. II 425-26. There is no indication in
the record that Stockwell thought the citation related to mine fan stoppages, the subject of th~
amended version of section 75.313. Accordingly, we reverse the judge' s decision to vacate this
citation on procedural grounds, and remand for a determination of whether Faith' s operation of
the loader violated section 75.342(a)(4).
III.
Citation No. 3024814
A.

Factual and Procedural Baclq:round

On March 17, 1993, during an inspection of the mine, MSHA Inspector Layne visited a
crosscut on the right side of the belt line where five miners were working. l7 FMSHRC at 113().
Immediately adjacent to the crosscut, the beltline had been driven through~ pillar, splitting the
pillar, even though cribs had not previously been installed in that area as requjred by Faith's roof
control plan. 11 /d. at 1186-87. Stockwell told Layne that cribs were not ins~led in the area
because, if they had been, there would not have been enough room to l)aul gob material and

10

We have previously applied the provisions of Rule 15 in resolving issues relating to the
amendment of citations. See Wyoming Fuel Co., 14 FMSHRC 1282, 1289-90 (August 1992);
Cyprus Empire Corp., 12 FMSHRC 911,916 (May 1990); see also 29 C.F.R. § 2700.l(b)
(providing that the Federal Rules of Civil Procedure shall apply "so far as practicable" on
procedural questions not governed by the Commissjon' s procedural rules or the Mine Act).
Specifically, we have recognized Rule 15(b)' s "emphasis upon the parties understanding that the
unpleaded claim is, in fact, being litigated" in determining whether a posthearing amendment of
a citation is warranted. Magma Copper Co., 8 FMSHRC 656,659 n.6 (May 1986).
11

The roof control plan provides that cribs are to be set no more than 5 feet apart and
that, ''where practical," cribs must be set before splitting the pillar. !d. at 1187.

1362

equipment through the area. ld at 1187. Layne issued a citation to Faith alleging an S&S
violation of section 75.220 12 for not complying with the requirement of the roof control plan that
cribs be installed before splitting the pillar. ld at 1186-87; Tr. VI 207-08; Jt. Ex. 51.
At the hearing, counsel for the Secretary moved to apply the doctrine of res judicata to
establish this and two other alleged violations (Citation No. 3202244 and Order No. 3202245,
discussed infra), and to bar Faith from raising any related defenses, based upon a decision issued
by U.S. Magistrate Judge John Y. Powers of the U.S. District Court for the Eastern District of
Tennessee in September 1993 in a probation revocation proceeding involving Stockwell. 17
FMSHRC at 1188-89. This proceeding was the byproduct of an earlier criminal case resolved in
June 1992 in which Stockwell pled guilty to two counts of violating the Mine Act, and was
sentenced to three years' probation and assessed a $1,500 fine. /d. at 1188 (citing United States
v. Lonnie Ray Stockwell, No. 92-074M (E.D. Tenn. June 24, 1992)). As a condition of his
probation, Stockwell was ordered to refrain from any "serious unwarrantable" violations of the
Act pertaining to roof support and ventilation. 17 FMSHRC at 1188.
In May 1993, Stockwell was ordered to show cause why his probation should not be
revoked. /d.; Tr. Vat 22. The order was supported by a report from Stockwell's probation
officer stating that Stockwell had been cited for several unwarrantable violations. 17 FMSHRC
at 1188. The report identified eight such violations, including this and two other alleged
violations involved in this proceeding. ld; Tr. V 22-25. Magistrate Powers held a probation
revocation hearing at which MSHA inspectors testified. 17 FMSHRC at 1188. Following the
hearing, the magistrate issued a memorandum and order which states:
Having heard all of the witnesses and argument[s] of
counsel ... it is concluded and the [magistrate] finds serious life
threatening violations of the [Mine Act] including but not limited
to the conduct of mining well beyond the 12-foot limit beyond roof
support were committed or caused to be committed by the
defendant in late 1992 and early 1993 in ... Faith Coal Company
Mine# 15....
·

ld at 1188-89 (quoting United States v. Lonnie Ray Stockwell, No. CR-1-92-33, slip op. at 3
(E.D. Tenn. Sept. 16, 1993)). As a result, the magistrate revoked Stockwell's probation and
sentenced him to six months in prison. 17 FMSHRC at 1189. Subsequently, the judge denied
Stockwell's motion for a new trial, and no further appeal was taken. ld
12

Section 75.220 provides in part:
(a)(1) Each mine operator shall develop and follow a roof
control plan, approved by the District Manager, that is suitable to
the prevailing geological conditions, and the mining system to be
used at the mine.

1363

At the heari.ng, the Secretary's counsel argued that the magistrate's decision in the
probation revocation proceeding amounted to a finding that Faith had committed the three
violations at issue here. Tr. V 35. In a bench ruling, the judge denied the Secretary's res judicata
motion, concluding that he could not determine from the memorandum and order that the
magistrate had made a finding that the three alleged violations had occurred as charged. 17
FMSHRC at 1189. The judge also noted that the magistrate had apparently taken no evidence
and made no findings with respect to negligence and gravity - factors relevant in determining
whether the violation was unwarrantable or S&S. ld at 1190.
In his decision, the judge reaffirmed his bench ruling denying the Secretary's res judicata
motion for the reasons he had provided at the hearing. ld at 1189-90. The judge explained that,
for the res judicata doctrine to apply, the issues for which preclusion is sought must be identical
to the issues decided in the first action, in this case the probation revocation proceeding. /d. at
1190.
The judge then concluded that Faith had committed an S&S violation of section 75.220
by failing to comply with the requirement of its roof control plan that cribs be set, where
practical, prior to splitting a pillar. ld at 1190-91 . The judge rejected Stockwell' s testimony that
it was not practical for Faith to install cribs in this crosscut area because there would not have
been sufficient clearance to use the area as a passageway for hauling gob and the crosscut could
not have been used as an escapeway. /d. at 1190. The judge noted that Faith could have used
other available areas to dump the gob and thereby avoided travel through this area and that,
contrary to Faith's contention, the crosscut could have been part of a valid escapeway even if
cribs had been installed. /d.
B.

Dis.posjtion

Faith asserts that the judge's finding of a section 75.220 violation is not supported by
substantial evidence because the record indicates that it did install cribs in the last open crosscut
as required by the roof control plan and that additional roof support was not necessary in the area
of the split pillar referred to in the citation. F. Br. II at 4-5. Faith also contends that the judge
properly denied the Secretary's motion to apply the res judicata doctrine to establish this and two
other alleged violations based upon the results of the probation revocation proceeding because
the issues presented and decided in that proceeding were not the same as those involved here. /d.
at 5-7.
The Secretary argues that substantial evidence supports the judge's finding that Faith
violated section 75.220 because the testimony oflnspector Layne establishes that Faith failed to
install the cribs required by its roof control plan before mining through the pillar in the last open
crosscut in the area. S. Br. II at 17-18. The Secretary also contends that the judge erred by
refusing to give res judicata effect to the probation revocation determination because in that
proceeding the District Court decided identical issues relating to this alleged violation. /d. at 1317.

1364

.·

1.

. Res Judicata

Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second
suit involving the same parties or those in privity with them, based upon the same claim. Nevada
v. United States, 463 U.S. 110, 129-30 (1983); Federated Dept. Stores, Inc. v. Moitie, 452 U.S.
394,398 (1981); Lawlor v. National Screen Service Corp., 349 U.S. 322, 326 (1955); Bradley v.
Belva Coal Co., 4 FMSHRC 982, 986-87 (June 1982). Res judicata also prevents litigation of all
grounds for, or defenses to, claims that were previously available to the parties, even if they were
not actually asserted in a prior proceeding. Brown v. Felsen, 442 U.S. 127, 131 (1979); Bradley,
4 FMSHRC at 987. The crucial question is whether the claims involved in the two actions are
identical; if not, res judicata is inapplicable. /d; Newport News Shipbuilding & Dry Dock Co. v.
Director, Office ofWorkers' Compensation Programs, 583 F.2d 1273, 1278 (4th Cir. 1978), cert.
.denied, 440 U.S. 915 (1979). The party asserting the doctrine must prove all the·elements
necessary to establish it. Bradley, 4 FMSHRC at 986.
As the judge noted, there was no indication in the magistrate's memorandum and order
that his decision was based upon a finding that the three alleged violations had occurred as ·
charged. 17 FMSHRC at 1189. Given the eight alleged violations that the magistrate was asked
to consider in that proceeding, there is no basis for concluding that his reference to "serious life
threatening violations" necessarily referred to any of the three alleged violations at issue here.
Indeed, given the generality and brevity of the probation revocation d~ision, it is impossible to
draw any conclusions regarding the magistrate' s findings with respect to these three alleged
violations. See Bradley, 4 FMSHRC at 989 (declining to apply res judicata doctrine based upon
decision of state safety board that was "extremely brief and conclusory" and "contaili[ed] no
fmdings of fact, credibility resolutions, or explanations for the conclusions reached"). In
addition, as the judge explained, even if the magistrate in the criminal proceeding had expressly
found that these three violations did occur, he did not consider or make any findings with respect
to negligence and gravity. 17 FMSHRC at 1190. Accordingly, the judge correctly concluded

1365

that the res judicata ·doctrine did not apply, and we affirm his denial of the Secretary~ s motion to
apply the doctrine to establish this an~ two other alleged violations.13
2.

Violation

We conclude that substantial evidence supports the judge's finding that Faith failed to
install cribs in the crosscut area as required under its roof control plan, and therefore affirm his
finding of a section 75.220 violation. The credited testimony of Inspector Layne establishes that
Faith did not install cribs before splitting a pillar in the crosscut area in question. Therefore, a8
the judge noted, the only remaining question is whether it was practical to install cribs in this
area. 17 FMSHRC at 1190. The judge's finding that it was practical to do so, de~pite Faith' s
arguments to the contrary, is supported by substantial evidence.
Faith' s argument that it had, in fact, installed cribs in the last open crosscut as required by
its roof control plan is not supported by the record, and based upon a mischaracterization of
Layne' s testimony. Contrary to Faith' s assertion (F. Br. II at 4-5), Layne did not testify that
13

After detailing the basis for their conclusion _that the federal magistrate' s niling should
not have res judicata effect in this case (a conclusion with which we agree), our coll~ues then
voice their disapproval of the testimony given by the MSHA inspectors in a propation proceedin~
before the magistrate "to the extent that the Secretary's actions . . . had the effect of
circumventing an ongoing Commission proceeding.'' Slip op. 19. We fmd thi~ cq~ge to be
without merit.
Although the record in this case doe~ not indicate whether the MSHA insp~ctors were
subpoenaed to testify, or whether they volunteered their testimony, the record does indicate that
they testified before the magistrate and apparently detailed why they took enforcement action anq
presumably why they concluded that violations occurred. Tr. V 26-27, 31-33, 40, 43, 48, 62,
The presiding magistrate, who is "free to consider many factors in granting or revoking
probation" (United States v. Miller, 191 F.2d 336,339 n.4 (6th Cir. 1986)), apparently considered
their testimony to be relevant. Thus, it is clear from his action in revoking Mr. Stockwell' ~
probation that the magistrate did not require a Commission a<ijudication and finding of violation
in order to make his judgment. The idea that this lawful MSHA participation in a criminal
proceeding amounts to an attempt by the Secretary to "circumventO an ongoing Commission
proceeding," is troubling to us because we find this charge to be unsupported and unfounded.
In any event, the probation revocation proceeding is a matter over which the Commissiqn
has no jurisdiction, and thus our colleagues' objections to actions at that hearing are not relevant
to the instant case. In addition, we emphasize that the testiritony and participation of the
inspectors before the magistrate have had absolutely no impact upon this proceeding.
Accordingly, we take strong exception to our colleagues' criticism of the Secretary' s
actions at the probation revocation hearing.

1366

there were cribs in the last open crosscut; rather, he testified that cribs were installed in other
nearby areas of the mine. See Tr. VI 269-70. Layne's direct testimony, which was properly
credited by the judge~ establishes that when he inspected the area in question he found that cribs
had not been installed as required by Faith's roof control plan. Tr. VI 215-23.
IV.
Citation No. 3202244
A.

Factual and Procedural Backifound

On March 17, 1993, while conducting an inspection in the vicinity of Survey Station No.
114, MSHA Inspector Larry Anderson observed two working places that had been driven in
excess ofthe 10-foot limit established by Faith's roof control plan.14 17 FMSHRC at 1192. One
place had been driven 24 feet beyond roof supports; the other place had been driven 27Yl feet
beyond roof supports. ld In the same area, Anderson observed a neck that had been driven 23
feet inby roof supports. ld at 1193. The surfaces of the coal ribs in these areas were jagged,
leading Anderson to conclude that they had been cut with conventional equipment, instead of a
continuous miner. !d. at 1192-93. In an adjacent entry, Anderson obse.rved an area where a
crosscut had been driven into an unsupported area, also in apparent violation of Faith's roof
control plan.15 !d. at 1193. This unsupported area was estimated by Anderson to be about 20 feet
wide and 30 feet long. ld Based on these observations, Anderson issued a citation to Faith
alleging an S&S and unwarrantable violation of section 75.220. Jd at 1.191-92; Tr. VI 295; Jt.
Ex. 54.
After fmding that Faith had violated section 75.220 (17 FMSHRC at 1195-96), the judge
concluded that this violation was the result of Faith's unwarrantable failure to comply with its
roof control plan. ld at 1196-97.16 The judge found that the violation had existed for several
months, in an air intake course subject to daily inspection, and concluded that, given the
generally unstable nature of the roof in the area, Faith had failed to meet a "high standard of care
to ensure that the roof was supported adequately." !d. at 1197.

14

Faith's roof control plan provided that when coal was cut with conventional
equipment, the cut could not exceed 10 fe~t in length. 17 FMSHRC at 1192.
15

The roof control plan required that openings creating an intersection be permanently
supported, or that at least one row of temporary supports be installed before any work or travel
was permitted in the intersection. ld at 1193.
16

The judge also concluded that this violation was S&S. ld at 1196. Faith does not
challenge this finding. F. Br. II at 10, 12.

1367

B.

Dis.,position

Faith contends that the judge erred in finding that this violation was the result of
unwarrantable failure because it was neither intentional nor the result of a reckless disregard for
the safety of miners. F. Br. II at 11-14. Faith argues that Stockwell, its owner, was not aware of
the violation until it was brought to his attention by Inspector Anderson, that it subsequently took
immediate action to abate the violation, and that the area with insufficient support was not as
large as that estimated by Anderson. ld Faith also asserts that the judge properly determined
that the doctrine of res judicata was not applicable because the Secretary failed to establish that
the probation revocation proceeding involved the same issues as those relating to this violation.
/d at 15.
The Secretary argues that substantial evidence supports the judge's finding that this
violation was the result ofFaith' s unwarrantable failure, relying on Faith's admission that miners
traveled and worked under unsupported roof and evidence that the roof was in poor condition,
that Faith failed to take the condition of the roof into account, that the areas at issue were in an
air course that had to be examined on a daily basis, and that the violation had existed for several
months prior to the issuance of this citation. S. Br. II at 21-22, 23-25. In addition, the Secretary
argues that the judge erred by refusing to grant res judicata effect to the decision in the probation
revocation proceeding with respect to the unwarrantable failure issue. ld at 20-21, 22-23.
The unwarrantable failure terminology is taken from section 104(d) of the Mine Act, 30
U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a
violation. In Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission
determined that unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. /d. at 2001 . Unwarrantable failure is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference" or a "serious lack of reasonable care." ld at
2003-04; Rochester & Pittsburgh Coal Corp., 13 FMSHRC 189, 194 (February 1991); see also
Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's
unwarrantable failure test).
We conclude that substantial evidence supports the judge's findings, and affirm his
determination that this section 75.220 violation was the result of Faith's unwarrantable failure to
comply with requirements ofits roof control plan. Based on Inspector Anderson's credited
testimony that the shale roof in the area was scaling and in poor condition, and that water made
parts of the roof subject to sudden, unanticipated falls, the judge reasonably concluded that Faith
was chargeable with a high degree of care to ensure that the roof was supported adequately,
which it failed to meet. 17 FMSHRC at 1196-97. As the judge observed, "[e]xposing miners to
unsupported roof under such conditions was equivalent to requiring them to play Russian
roulette." ld at 1196. We have previously relied upon the high degree of danger posed by roof
control plan violations as a basis for finding unwarrantable failure. See Cyprus Plateau Mining
Corp., 16 FMSHRC 1610, 1616 (August 1994)(allowing work under unsupported roof was
result of unwarrantable failure where installation of temporary roof supports, as required under

1368

roof control plan, was "necessary for safe mining practice"); Quinland Coals, Inc., 10 FMSHRC
705, 709 (June 1988) (finding unwarrantable failure where ''roof conditions were highly
dangerous"); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2001; 2011 (December 1987)
(temporary roof support violation resulted from unwarrantable failure where prior history of roof
falls "placed [operator] on notice that heightened scrutiny to assure compliance with its roof
control plan was vital"). See also Lion Mining Co., 18 FMSHRC 695, 700~02 (May 1996)
(vacating judge's finding that roof control plan violation was not unwarrantable).
In addition, the violations should have been obvious to Faith because they occurred in
areas of an air intake course that had to be examined on a daily basis. See Quinland, 10
FMSHRC at 708~09 (obvious nature oflack of proper roof support); Youghiogheny & Ohio Coal
Co., 9 FMSHRC at 2010~11 (fmding of unwarrantable failure where preshift examinations had
been conducted but the roof control violations were not reported); Eastern Associated Coal
Corp., 13 FMSHRC 178. 187 (February 1991) (violations not reported following preshift
examinations). As in Quinland and Youghiogheny, because Faith was on notice of poor roof
conditions, its failure to comply with its roof control plan is indicative of a "serious lack of
reasonable care." See 10 FMSHRC at 708~09; 9 FMSHRC at 2011. The unwarrantable failure
finding is also supported by the duration of the violation, which was found by the judge to have
existed for several months. 17 FMSHRC at 1197. See Quinland, 10 FMSHRC at 709 (poor roof
conditions associated with section 75.200 violation had existed "for a considerable length of
time").
Given the judge's finding that this violation had existed for several months, in an area of
the mine subject to daily inspections, the record does not support Faith's assertion that it was not
aware of the violative conditions until it received a citation from Inspector Anderson. In
addition, the mere fact that the violative conduct may not have been intentional does not preclude
an unwarrantability finding. It is well established that intentional and deliberate conduct is not a
condition precedent to a determination of unwarrantable failure. See Emery, 9 FMSHRC at
2003-04; S&H Mining, Inc., 17 FMSHRC 1918, 1923 (November 1995).17

v.
Order No. 3202245
A.

Factual and Procedural Back~und

In reviewing a map of the No. 15 Mine, MSHA Inspector Anderson noticed irregular
variations in pillar sizes. 17 FMSHRC at 1198. Accordingly, during his inspection of the mine
on March 17, 1993, Anderson examined the areas that appeared irregular on the map, checked
17

We also conclude that the judge properly denied the Secretary's motion to apply the res
judicata doctrine to establish the unwarrantability of this violation based upon the decision in the
probation revocation proceeding, for the reasons discussed supra, pp. 9-10.

1369

pillar sizes and shapes, and inspected entries to determine whether they were straight. ld Based
on his observations, Anderson concluded that Faith had been mining without the use ·o f
sightlines18 for between 30 and 60 days. 17 FMSHRC at 1198-99. He therefore issued an order
to Faith alleging a violation of section 75.203(a), which was amended at hearing to allege a
violation of section 75.203(b).19 ld at 1197-98, 1200-01 ; Tr. VI 405; Jt. Ex. 55.
The judge concluded that the Secretary had failed to prove that sightlines were not used to
control mining direction at the mine, and therefore vacated this order. 17 FMSHRC at 1201-02,
1223.20 The judge found that Inspector Anderson had no first-hand knowledge of whether or not
sightlines were used because he did not observe any surveying or mining being conducted at the
mine. Jd. at 1201 . The judge also found that the evidence offered by the Secretary to support
this violation, consisting primarily of Anderson' s testimony concerning the depiction of
irregularly shaped entries and pillars on the mine map, was not convincing. /d at 1201-02. The
judge noted that the Secretary had not offered any evidence that spads used to establish sightlines
were not in place, or testimony from miners that it was common practice not to follow sightlines
at the mine. !d. at 1202. Instead, the judge credited Stockwell' s testimony that he intentionally
deviated from projections in certain instances because of adverse roof conditions, and that even
in such areas Faith had used sightlines. ld. at 1201-02. In crediting Stockwell's testimony on
this point, the judge explained that the record was replete with testimony concerning adverse roof
conditions and that even Inspector Anderson admitted that the deviations observed could have
been the result of roof problems. ld. at 1202.
B.

Disposition

The Secretary contends that the judge erred in refusing to give res judicata effect to the
decision of Magistrate Powers in the probation revocation proceeding, which she contends
amounted to a finding that Faith had mined without the use of sightlines. S. Br. at 10-14. The
Secretary also contends that the judge erred in concluding that substantial evidence did not
establish a section 75.203(b) violation because that determination was based primarily upon his
decision to credit Stockwell's self-serving testimony that the deviations were intentional ~d

18

Sightlines are a method of keeping on the correct mining course through the use of
spads set in accordance with projections established by the operator on a mine site map. Tr. VI
at 406-10.
19

Section 75.203(b) provides: ·
A sight line or other method of directional control shall be used to
maintain the projected direction of mining in entries, rooms,
crosscuts and pillar splits.

20

At certain points in his decision, the judge inadvertently referred to this order as Order
No. 3203325. ld. at 1197, 1223 .

1370

made in response to adverse roof conditions. !d. at 10, 14-16. The Secretary contends that this
credibility resolution is erroneous and should be overturned, because the judge provided no
explanation for his determination and Stockwell was otherwise shown to be a noncredible
witness. !d. at 14-16.
·
Faith contends that substantial evidence supports the judge's fmding that it did not violate
section 75.203(b) because Stockwell' s credible testimony established that it followed sightlines
to control mining direction, except where deviations were necessary because of adverse roof
conditions. F. Br. at 5-12. Faith also contends that the judge properiy denied the Secretary's
request to apply the res judicata doctrine to establish this alleged violation because there is no
indication that the probation revocation proceeding involved issues identical to those presented
here. ld. at 6, 8-11.
The Commission has long held that a judge' s credibility determinations are entitled to
great weight and may not be lightly overturned. Farmer v. Island Creek Coal Co. , 14 FMSHRC
1537, 1541 (September 1992); Penn Allegh Coal Co. , 3 FMSHRC 2767, 2770 (December 1981).
We have recognized that since the judge has an opportunity to hear the testimony and view the
witnesses he is ordinarily in the best position to make a credibility determination. In re: Contests
ofRespirable Dust Sample Alterations Citations, 17 FMSHRC 1815, 1878 (November 1995),
appeal docketed, Secretary ofLabor v. Keystone Coal Mining Corp., No. 95-1619 (D.C. Cir.
Dec. 28, 1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713,719 (11th Cir. 1984)). Accordingly,
"as a general rule [we] are bound by the credibility choices of the (judge], even if [we] 'might
have made different findings had the matter been before [us] ... de novo."' Ona, 729 F.2d at
719 (quoting GulfStates Mfrs., Inc. v. NLRB, 579 F.2d 1298, 1329 (5th Cir. 1978)).
Nonetheless, the Commission will not affirm such determinations if there is no evidence or
dubious evidence to support them. Consolidation Coal Co., 11 FMSHRC 966,974 (June 1989)
(citations omitted).
We conclude that the judge' s decision to credit Stockwell' s testimony regarding the use .
of sightlines is adequately explained and does not constitute an abuse of discretion. In explaining
his decision to credit Stockwell, the judge indicated that Stockwell's testimony was supported by
considerable record evidence of adverse roof conditions, and noted that even Inspector Anderson
admitted that the deviations could have been caused by roof problems. 17 FMSHRC at 1202.
The judge also noted tha1 the Secretary did not attempt to rebut Stockwell's testimony by offering
evidence that the required spads were not in place, or testimony from miners that it was common
practice at the mine not to follow sightlines. !d. 21
21

Contrary to the Secretary' s suggestion (S. Br. at 16 n.8), the judge's decision to credit
Stockwell on this point was not based on this ground alone; rather, it was one of several reasons
mentioned by the judge as a basis for this credibility determination. Moreover, it was not
improper, as the Secretary contends, for the judge to rely on the failure to produce relevant
evidence both in evaluating the strength of the Secretary's case and in deciding whether.to credit
Stockwell' s conflicting explanation of the presence of certain irregularities. Nor was the judge

1371

In addition? the fact that Stockwell's testimony may have been less than fully credible
with respect to other matters does not, in itself, provide a basis for disturbing the judge's decision
to credit him on this point. We have previously recognized that ·it is not uncommon, and
certainly not reversible error, for the trier of fact to find a witness to be credible on some, but not
other, matters. In Secretary of Labor on behalfofRobinette v. United Castle Coal Co., 3
FMSHRC 803 (April1981), the Commission explained:
We do not subscribe to a "false in one, false in everything" rule of
testimonial evidence, and such rules are not applied inflexibly in
any event. ... If the remainder of a questionable witness'
testimony is corroborated by other credible evidence ... or is
otherwise inherently believable, the judge is not foreclosed from
accepting it.

!d. at 813 (citations omitted).
The Secretary has failed to offer any evidence that warrants the "extraordinary step" of
reversing the judge's decision to credit Stockwell's explanation that the deviations from
projections were made intentionally in response to adverse roof conditions and not indicative of a
failure to follow sightlines. Hall v. Clinchfield Coal Co., 8 FMSHRC 1624, 1629 (November
1986). Accordingly, we conclude that the judge's credibility-based determination that Faith did
in fact utilize sightlines is supported by substantial evidence, and affirm his finding that the
Secretary failed to establish a violation of section 75.203(b).22

required, as the Secretary asserts, to engage in a detailed analysis of Stockwell's demeanor on the
witness stand.
22

We also conclude that the judge properly denied the Secretary's motion to apply the res
judicata doctrine to establish this violation based upon the decision in the probation revocation
proceeding, for the reasons discussed supra, pp. 9-10.

1372

VI.
Conclusion
For the foregoing reasons, we affirm the judge's findings with respect to each of the
alleged violations of sections 75.202(a), 75.220, and 75.203(b) set forth in Citation Nos.
3396045, 3024814, 3202244, and Order No. 3202245. We also affirm his detennination that the
doctrine of res judicata was not applicable as a basis for establishing the violations alleged in
Citation Nos. 3024814 and 3202244 and Order No. 3202245. We reverse the judge's decision to
vacate the violation alleged in Citation No. 320233 7, concerning the use of a scoop loader
without an operative methane monitor, and remand for a determination of whether Faith violated·
section 75.342(a)(4).

Marc Lincoln Marks, Commissioner

1373

Commissioners Riley and Verheggen, concurring:
We agree with our colleagues' decision. We write separately to offer an additional
rationale as to why the judge properly denied the Secretary' s motion to establish that the
violations alleged in Citation Nos. 3024814 and 3202244 and Order No. 3202245 occurred as
charged by application of the doctrine of res judicata based on the magistrate' s decision in
Stockwell's probation revocation proceeding. See, slip op. at 9-10,,13 n.l7, and 16 n.22.
As pointed out by our colleagues, notwithstanding the Secretary' s assertion that the issues
addressed by the U.S. District Court were identical·to those addressed in these proceedings, the
Secretary failed to prove that the magistrate based his decision upon a finding that the alleged
violations occurred as charged. We also note that the Secretary, who carries the.burden of
proving all the elements necessary to establish res judicata (Bradley v. Belva Coal Co., 4
FMSHRC 982, 986 (June 1982)), made no effort to prove that the requisite privity existed
between Stockwell and Faith. See Nevada v. United States, 463 U.S. 110, 129-30 (1983) (res
judicata applies only to a second suit involving the same parties or those in privity with them); In
re Gottheiner, 703 F .2d 1136, 1140 (9th Cir. 1983) ("Privity exists when there is ' substantial
identity' between parties, that is, when there is sufficient commonality of interest.") (citation
omitted).
We write separately; however, to highlight an even more fundamental basis upon which
to reject the Secretary's attempt to assert res judicata in these proceedings. We find that, in the
first instance, a federal magistrate lacks the subject matter jurisdiction to make a finding of a civil
violation ofthe Mine Ac1. In Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) the
Supreme Court held that "the Commission and the courts of appeals have exclusive j urisdiction
over challenges to agency enforcement proceedings" brought under the Mine Act. /d. at 208
(emphasis added). To the extent that the federal magistrate's revocation of Stockwell's probation
was grounded upon his determination that civil violations of the Mine Act occurred, he had no
such authority . .Congress has vested this authority exclusively in the Commission and the courts
of appeals. Thus, until proven by the Secretary before the Commission, the citations and order
were mere allegations of violations. Only after a final adjudication before the Commission, with
a finding of a violation, could the citations and order have been presented to the magistrate as
evidence of civil violations of the Mine Act.
We also note that although the Secretary argued in her post-hearing brief that the
magistrate specifically affirmed Order No. 3202245 (S. Post-Trial Br. at 129-30), Judge Barbour
reached the opposite result and vacated the order, a decision which we affirm today. This
apparent difference in the results reached by the magistrate and the Commission highlights the
critical importance of the Commission guarding its jurisdiction over civil proceedings under the
Mine Act, in which our agency can bring its expertise to bear on statutory and regulatory
questions arising under the Act. Thunder Basin, 510 U.S. at 214-15.

1374

We also write separately to voice our concern that at the time the probation revocation .
hearing was taking place before the federal magistrate during mid-September 1993, the citations
and order were at issue before a Commission judge, and as such·were allegations that the Mine
Act was violated.23 It appears from the record, however, that Stockwell's probation officer, with
the assistance ofMSHA inspectors, represented to the magistrate that violations of the Mine Act
as alleged in the citations and order did in fact occur. Tr. V 22-25, 45-49. That the Secretary
then argued before Judge Barbour that the violations had been proven before the magistrate, an
argument she has raised on appeal, demonstrates that she believes that the probation revocation
proceeding was an acceptable substitute for an adjudication of the citations and order before the
Commission. The Secretary has erred, however, by insisting that the federal magistrate had the
power to render moot a Commission proceeding. To the extent that the Secretary's actions in
this regard had the effect of circumventing an ongoing Commission proceeding, we disapprove.
Accordingly, we conclude that the show cause hearing before a federal magistrate on the
narrow question of whether Stockwell's probation should have been revoked was not, and could
not have been under Thunder Basin, a substitute for a proper·determination on the merits of the
Secretary's allegations under the Mine Act, with appropriate review by the Commission and a
court of appeals.

Theodore F. Verheggen, Co

23

Specifically, while the probation revocation hearing was taking place, the question of
whether to enter a default judgment against Faith in these proceedings came before the judge..
Tr. V 29-30.

1375

Distribution
Cheryl C. Blair-Kijewski, Esq.,
·
Office of the Solicitor
U.S. Department of Labor
401 5 Wilson Blvd., Suite 400
Arlington, VA 22203
Lonnie Stockwell
Faith Coal Company
Route 1, Box 196
Palmer, 1N 37365

Administrative Law Judge David Barbour
Federal Mine Safety and Health Review Commission
Office of the Administrative Law Judge
2 Skyline, 1Oth Floor
5203 Leesburg Pike
Falls Church, VA 22041

1376

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

_August 11, 1.9 97

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

•'

v.

Docket No. SE 94-244-R

JIM WALTER RESOURCES, INC.

BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners

DECISION
BY THE COMMISSION:
This contest proceeding, arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), involves a citation and withdrawal order
issued by the Department of Labor's Mine Safety and Health Administration (''MSHA") alleging
a violation of30 C.F.R. § 75.400 for accumulation of trash detected in an entry of Jim Walter
Resources, Inc.'s ("JWR") No. 7 Mine located in Birmingham, Alabama.1 After an evidentiary
hearing, Administrative Law Judge Gary Melick affirmed the. violation but concluded that the
Secretary had not proved either that the violation was significant and substantial ("S&S")2 or that

1

Section 75.400 states:
Coal dust, including float coal dust deposited on rockdusted 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.

(Emphasis added.) "Active workings" is defined in 30 C.F.R. § 75.2 as "[a]ny place in a coal
mine where miners are normally required to work or travel."
2

The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.
§ 814(d)(l), which distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a . . . mine safety or health hazard . ..."

1377

it had resulted from JWR's unwarrantable failure to comply with the standard.3 16 ~MSHRC
1511 (July 1994) (ALJ). Accordingly, the judge modified the order issued under section
104(d)(2) of the Act to a citation under section 104(a). Id. at 1514. In reaching his negative S&S
and unwarrantable determinations, the judge declined to consider nearby trash materials located
in the inactive workings of the mine because they did not violate the terms of section 75.400. Id.
at 1512-14. The Secretary petitioned the Commission to review the S&S and unwarrantable
determinations. A divided Commission affirmed the judge's decision. 18 FMSHRC 508 (April
1996).
Subsequently, the Secretary filed a petition for review in the U.S. Court of Appeals for
the District of Columbia Circuit. On May 2, 1997, the court issued its decision, affirming in part
and reversing and remanding in part the decision of the Commission. Secretary ofLabor v.
FMSHRC, 111 F.3d 913 (D.C. Cir. 1997). The court affirmed the Commission' s determination
that the section 77.400 violation was not S&S and rejected the Secretary' s argument that, in
considering whether the violation was S&S, the Commission should take account of the
seriousness of the nearby non-violative accumulation. Id. at 917-18. Relying on the language of
section 104(d)(1 ), the court determined that "Congress has plainly excluded consideration of
surrounding conditions that do not violate health and safety standards" from the S&S
determination. Id. at 917.
However, the court determined that section 104(d)(l) was ambiguous on the question
whether the non-violative accumulation could be considered for the unwarrantable determination.
Id at 919-20, The court noted that, when the Mine Act is ambiguous on a point in question, a
court is required to apply the analysis set forth in Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 461 U.S. 837, 842-45 (1984), and defer to a reasonable interpretation of
the Secretary, 111 F.3d at 914-15, 919-20. The court found the Secretary's interpretation,
allowing consideration. of conditions that do not violate health and safety standards in the
determination of unwarrantable failure, to be a reasonable construction of the Mine Act. Id. at
919-20. Accordingly? the court remanded the case to the Commission to consider the nonviolative trash accumulations when addressing whether ''the record contains sufficient evidence
of causation and culpability to support an 'unwarrantable failure' finding." Id at 920. On
July 22, 1997, the court issued its mandate.
Pursuant to the court's order, we vacate the judge's unwarrantable determination and
remand to the judge to consider the non-violative accumulations in the inactive area of the mine.
3

The unwarrantable failure terminology is taken from section 104(d)(l) of the Act,
30 U.S.C. § 814(d)(l), which establishes more severe sanctions for any violation that is caused
by "an unwarrantable failure of [an] operator to comply with ... mandatory health or safety
standards .. . ."

1378

The judge is to consider these accumulations, which his decision refers to as "massive".
(16 FMSHRC at ·1513}, in light of the other factors that the Conunission may examine in
determining whether a violation is unwarrantable, including the extent of a violative condition,
the length of time that it has existed, whether the violation is obvious or poses a high degree of
danger, whether the operator has been placed on notice that greater efforts are necessary for
compliance and the operator's efforts in abating the violative condition made prior to the
issuance of the citation or order. Mullins & Soris Coal Co., 16 FMSHRC 192, 195 (February
1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (August 1992); Quinland Coals, Inc., 10
FMSHRC 705,709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984);
Midwest Material Co., 19 FMSHRC 30, 34 (January 1997); Enlow Fork Mining Co., 19
FMSHRC 5, 11-12, 17 (January 1997). If the judge determines that the violation is
unwarrantable, he shall modify the citation accordingly and reassess the civil penalty.

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

Theodore F. Verheggen, Co

1379

Distribution
W. Christian Schumann, Esq.
Robin A. Rosenbluth, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Blvd.
Arlington, VA 22203
David M Smith, Esq.
J. Alan Truitt, Esq.
Warren B. Lightfoot, Jr., Esq.
Naynard, Cooper & Gale, P.C.
2400 AmSouth Avenue North
Birmingham, AL 35203
William Lawson, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd.
Suite B-201
Nashville, 1N 37215
Administrative Law Judge Gary Melick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1380

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR

WASHINGTON, D.C. 20006

August 18, 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. KENT 93-369

PEABODY COAL COMPANY

BEFORE: Jordan, Chairman; Marks, Riley and Verheggen, Commissioners
DECISION
BY: Jordan;Chainnan; Riley and Verheggen, Commissioners
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"), involves a dispute between the Secretary of
Labor and Peabody Coal Company ("Peabody") regarding whether Peabody's violation of30
C.F.R. § 75.601 1 was significant and substantial ("S&S").2 In an earlier decision,
Administrative Law Judge Arthur Amchan determined that the violation was S&S. 15 FMSHRC
2578, 2584-86 (December 1993) (ALJ). The Commission subsequently vacated that decision
and remanded for further analysis, concluding that the judge failed to apply the Commission's
S&S test in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984) consistent with Commission
precedent. 17 FMSHRC 508,510-12 (April1995) ("Pe_abody f'). On remand, the judge
determined that the violation was not S&S.3 17 FMSHRC 811, 813-15 (May 1995) (ALJ). For

1

Section 75.601 provides in part:
Disconnecting devices used to disconnect power from trailing
cables shall be plainly marked and identified and such devices shall
be equipped or designed in such a manner that it can be determined
by visual observation that the power is disconnected.

2

The S&S terminology is taken from section 104(d)(l) of the Mine Act, 30 U.S.C.
§ 814(d)(l), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a ... mine safety or health hazard."
3

The judge also found that a violation of 30 C.F.R. § 75.701 by Peaboqy was not S&S.
17 FMSHRC at 813. The Secretary did not seek review of that determination. PDR at 2 n.l.

1381

the reasons that follow, we reverse and remand.

I.
Factual and Procedural Backiround
The background facts in this proceeding are fully set forth in Peabody I, 1T FMSHRC at
509, and are summarized here. On December 14, 1992, Darold Gamblin, an inspector from the
Department of Labor'~ Mine Safety and Health Administration ("MSHA"), inspected Peabody's
Martwick Mine, an underground coal mine in Muhlenberg, Kentucky. 17 FMSHRC at 811. At
the 3 South Panel entries, the inspector observed two disconnecting devices, or "catheads,"
which were plugged into a transformer. ld. at 813. Both catheads were attached to trailing
cables leading to continuous miners located at the face, a distance of approximately 250 to 300
feet. Tr. 38. One of the continuous miners, which had been rebuilt and returned to service, was
being exchanged for the other miner. Tr. 89. Only one of the catheads was labeled to indicate
the equipment to which its cable was attached. Tr. 42. The inspector believed that, if the wrong
cathead were plugged into the transformer, a miner could get electrocuted or crushed if he were
working on or near the mistakenly energized continuous miner. Tr. 40-41. Accordingly,
Inspector Gamblin issued a citation to Peabody alleging an S&S violation of section 75.601.
Peabody conceded the violation but disputed the inspector's characterization of the
violation as S&S. Tr. 7. The matter proceeded to hearing before Judge Amchan.
In his initial decision, the judge found that the violation was S&S. 15 FMSHRC at 258486. In reaching his determination, the judge attempted to harmonize the test for a "serious"
violation under the Occupational Safety and Health Act, 29 U.S.C. §"651 et'Seq. (1994)
("OSHAct") with the Commission's S&S test under Mathies, 6 FMSHRC at 3-4. ld at 2581-84.
In addition, the judge found Peabody's violation to be indistinguishable in any significant respect
from the operator's S&S violation of section 75.601 in U.S. Steel Mining Co., 6 FMSHRC 1834
(August 1984) ("U.S. Steel If'). ld at 2586·.
The Commission granted Peabody's petition for discretionary review of the judge's
determination. A majority of the Commission concluded that the judge departed from applicable
Commission precedent in attempting to harmonize the Commission's S&S test with the test for a
serious violation under the OSHAct. 17 FMSHRC at 510-11. The Commission also determined
that the judge erred in concluding that the violation was S&S because he could not distinguish
the facts of this case from those in U.S. Steel II. ld at 511. It explained that S&S determinations
have been based upon the particular facts surrounding the violation in issue. ld Accordingly,
the Commission vacated the judge's decision and remanded for further analysis. ld at 512.
Chairman Jordan, dissenting in part, voted to affirm the judge's S&S determination. ld at 51415. She concluded that the judge's decision was supported by substaritial evidence. Jd. at 514.
In addition, the Chairman found the judge's eonclusion consistent with the Commission's ·
resolution of the S&S question in U.S. Steelll. ld at 514-15.

1382

In his decision on remand, the judge determined that Peabody's violation of section
75.601 was not S&S. 17 FMSHRC at 813-15. He reasoned that there was not a reasonable
likelihood of injury resulting from the violation because the older continuous miner would only
be in the same location as the rebuilt miner for 2 or 3 days, and a person could tell by process of
elimination which cathead belonged to the rebuilt miner. /d. at 814-15. The judge also relied
upon evidence that it was company practice for employees, prior to disconnecting a cathead, to
trace its trailing cable to the transformer and for an employee performing work on a miner to lock
out power to the machine himself. ld Accordingly, the judge assessed a penalty of $50 rather
than the proposed penalty of$189 that he had assessed in his initial decision. /d. at 815.
The Commission granted the Secretary's subsequent petition for discretionary review,
challenging the judge's determination.

II.
Disposition
The Secretary argues that the judge's determination that Peabody' s violation of section
75.601 was not S&S is inconsistent with the purpose of the standard and is not supported by
substantial evidence. PDR at 4-5.4 She maintains that the purpose of section 75.601 is to prevent
miners from being forced to use a process of elimination to identify the correct cathead to
connect or disconnect. ld at 6. The Secretary contends that, without proper labeling, the wrong
cathead could be plugged into the transformer, resulting in a reasonable likelihood of injury to
miners working on or near mistakenly energized equipment. /d. at 7-8. Finally, she argues that
the Commission found a similar violation to be S&S in US. Steel II. /d. at 9-10. _Accordingly,
the Secretary requests that the Commission reverse the judge' s determination and remand for the
reassessment of a civil penalty. Id at 10-11.
Peabody responds that the judge correctly determined that the violation was not S&S. P ..
Br. at 7. It argues that injury was not reasonably likely to result from its failure to label one of
the catheads because the continuous miners would be in the same site for a brief period of time,
the catheads were distinguishable in that one was cleaner and one was labeled, and activation of
the lights on the continuous miners would reveal whether the correct cathead had been
connected. /d. at 3-5. Peabody also asserts that the likelihood of injury was eliminated by its
lock-out policy and the practice at the mine to trace trailing cables to the transformer before
connecting or disconnecting catheads. /d. at 5-6.
A violation is S&S if, based on the particular facts surrounding the violation, there exists
a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822,825 (Aprill981).

4

Pursuant to Commission Procedural Rule 75(a), 29 C.F.R. § 2700.75(a), the Secretary
designated his petition for discretionary review as his brief.

1383

In Mathies, the Commission further explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: ( 1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard - that is, a
measure of danger to safety - contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of areasonably serious nature.

/d at 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995); Austin Power, Inc. v. Secretary ofLabor, 861 F.2d 99, 103 (5th Cir. 1988)(approving
Mathies criteria).
At issue is the third Mathies element.· We conclude that substantial evidence does not
support the judge's determination that injury was not reasonably like to result from Peabody's
violation. 5
First, contrary to the judge's finding, evidence that both continuous miners would be in
the same site for 2 to 3 days increased, rather than decreased, the likelihood that injury would
result from Peabody' s failure to label one of the miners' catheads. Under normal conditions,
only one continuous miner is usually used in a section of the mine. Tr. 89. At the time of the
inspection, circumstances were unusual in that there were two continuous miners in one section.
Tr. 42. The catheads of the trailing cables of both continuous miners were plugged into the same
transformer and energized.6 Tr. 42,46-47. Inspector Gamblin testified that, under such
circumstances, a miner instructed to turn the power off of the equipment would not know which
cathead to disconnect. Tr. 61. He stated that a person working on the equipment might assume
that the correct miner had been turned off when it had not. Tr. 62. The inspector explained that
a person working on the mistakenly energized equipment' s electrical components or cable could
be electrocuted, and a miner working on the cutting head could be crushed. Tr. 40-41.

5

When reviewing an administrative law judge' s factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(l). "Substantial evidence" means "such relevant evidence as a reasonable
mind might accept as adequate to support (the judge's] conclusion." Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159,2163 (November 1989) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197,229 (1938)).
6

In order to energize equipment, the cathead must be plugged into the receptacle at the

transformer, and the breaker for that receptacle must be turned on. Tr. 66.

1384

In addition, the return to service of a rebuilt continuous miner is the type of work that
would likely require miners to connect or disconnect the equipment' s cathead. Inspector
Gamblin testified that miners would handle catheads if they had problems with the equipment or .
if they needed to disconnect power in order to do mechanical or electrical work. Tr. 45. He
stated that installation of a continuous miner involves primarily electrical work and that "they
w[ere] having trouble with the miners electrically and they had been back and forth to the power
station." Tr. 34, 45. Bob Epley, the chief engineer at the mine, testified that when a rebuilt
miner is exchanged for an older miner, the older miner is not removed until it is determined that
"all [of] the bugs" have b~n worked out of the rebuilt miner. Tr. 103.
Furthermore, although Peabody had a policy requiring a person performing work on
equipment to lock out power to the equipment himself, that policy did not apply to troubleshooting. Tr. 110-11 . Even if a lock were placed in the receptacle, however, the cathead
connected to the equipment requiring work could still be plugged into the other receptacle at the
transformer. Tr. 62-63, 75-77. Both catheads for the continuous miners were interchangeable
and could be plugged into either receptacle. Tr. 46. Thus, even if the lock-out policy were
followed, a continuous miner could still be mistakenly energized.
Moreover, the judge erred in finding that there was not a reasonable likelihood of injury
because miners could use a process of elimination to distinguish between the catheads. In US.
Steel II, the Commission, concluding that injury was reasonably likely to result from an
operator's violation of section 75.601, rejected the operator's argument that because only one of
two catheads was unmarked, a person would know the identity of the cables through a process of
elimination. 6 FMSHRC at 1838. The Commission explained that "relying on [the] skill and
attentiveness of miners to prevent injury 'ignores the inherent vagaries of human behavior."' 6
FMSHRC at 1838 n.4 (quoting Great W Elec. Co., 5 FMSHRC 840,842 (May 1983)). See also
Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (July 1992) (a miner's exercise of caution is not a
factor in considering whether violation is S&S). Here, although the cathead for the rebuilt miner
was cleaner than the other cathead, the area around the transformer was "pitch dark" and the only
light provided was by cap lamps. Tr. 43. In addition, although one cathead was marked, there is
no.evidence as to what the label actually read and whether it distinguished between the two
continuous miners. Epley testified that the practice at the mine was to use reflective tape with
the "name of the piece of machinery on it. Like a miner, it would be marked with a white
reflector tape and [']miner['] wrote on it." Tr. 111-12. Thus, a person at the transformer might
not know that the labeled cathead was connected to the older miner rather than the rebuilt miner.
Similarly, injury was not sufficiently reduced by Peabody's practice requiring miners to
trace a trailing cable from the equipment to the transfo'rmer before disconnecting it. As the
inspector testified, miners handle catheads when there are problems with the equipment. Tr. 4445; PDR at 6. Here, if such problems arose, a miner would have to trace approximately 250 to
300 feet of trailing cable to the transformer before he could verify that he was disconnecting the
correct continuous miner. Tr. 38.

1385

Finally, we find unpersuasive Peabody's argument that injury was not reasonably likely
because the continuous miners were equipped with lights that are activated only when the miner
was plugged into the transformer, making it apparent whether the correct machine had been
energized. P. Br. at 4-5. As the Commission has previously recognized, the purpose of the
standard's labeling requirement is to "prevent accidental energization of equipment in the first
instance." U.S. Steel Mining Co., 10 FMSHRC 1138, 1143 (September 1988). In any event,
Inspector Gamblin testified that the lights on the continuous miner would not burn, even though
the miner was energized at the transformer, if a breaker on the continuous miner had been turned
off or if the equipmen(s methane monitor had deactivated the lights. Tr. 63-64.
III.
Conclusion
For the foregoing reasons, we reverse the judge' s determination that Peabody's violation
of section 75.601 was not S&S. We remand to the Chief Administrative Law Judge for
reassignment and the reassessment of a civil penalty consistent with this opinion.7

7(~,e~
Mary u Jordan, Chatnnan

Theodore F. Verheggen, C

7

Judge Amchan has transferred to another agency.

1386

Commissioner Marks~ concurring:
For the same reasons expressed in my concurring opinion in U.S. Steel Mining Co., 18
FMSHRC 862, 868-75 (June 1996), wherein I suggested that the Mathies test be eliminated, I
concur, in result, with my colleagues' conclusion that the violation is S&S. !"further note that,
since the issuance of U.S. Steel, I have repeatedly extended, to operators and the government, the
opportunity to challenge the flawed Mathies test (particularly the third element) in cases pending
before the Commission. However, to date, there has been no

Marc Lincoln Marks, Commissioner

. 1387

'

Distribution

Colleen Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Carl B. Boyd, Jr.
Attorney at Law
120 North Ingram Street, Suite A
Henderson, KY 42420
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N. W., Suite 600
Washington, D.C. 20006

jhe

1388

ADMINISTRATIVE LAW JUDGE DECISIONS

FED~RAL

MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582 ·
303-844-3993/FAX 303-844-5268

AUG 6 1997
SECRETARY OF L~OR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVll.. PENALTY PROCEEDING
Docket No. WEST 93-298
A.C. No. 05-03505-03619

v.

Deserado Mine
WESTERN FUELS-UTAH, INC.,
(BLUE MOUNTAIN ENERGY, INC.,
Successor Operator),
Respondent
DECISION ON REMAND
QECISIQN APPROVING SETI'LEMENT

Before: Judge Cetti
This case is before me upon remand by the Commission for further findings and
analysis consistent with its June 3, 1997, Decision Docket No. WEST 93-298, 18 FMSHRC
_ June 1997. In its decision, the Commission affirmed the fmdings and orders with respect
to Citation Nos. 3587228, 3587229 and Order No. 3587231 and remanded for further
consideration the fmdings and orders with respect to the slippage and sequence switch
violations (section 75.1102) alleged in Citation No. 3587226 and the section 75.1101-16(a)
violation alleged in Citation No. 3587227.

..

On July 16, 1997, Timothy M. Biddle of Crowell & Moring L.L.P. filed a Notice of
Change of Operator and a Notice of Appearance. The parties state that Western Fuels-Utah,
Inc., the operator at the time the citations were issued and at the time the case was tried, sold
the mine to Blue Mountain Energy, Inc. and that this successor operator will pay the fmes.
The parties after conferring, reached an amicable settlement of the disputed issues and
on July -25, 1997, filed a Motion to Approve the Settlement Agreement and dismiss the case.
The proffered settlement is consistent with the Commission's Decision and provides for a
modest reduction of the MSHA proposed penalties for the remanded Citation Nos. 3587226
and 3587227 as follows:

1389

Citation No. 30C.F.R.
3587226
3587227
3587228
3587229

75.1102
75.1101-16(a)
75.1101-14(a)
75.1101-15(d)

Proposed Penalty

Amended Proposed Penalty

$1 ,019.00
1,019.00
724.00
4,000.00

$ 750.00
750.00
Vacated
4.00Q.OO

TOTAL

$5,500.00

It has been recognized that settlements are favored as a way of avoiding protracted and
expensive litigation. Core-vent Corp. y. Implant Innovations. Inc. 53 F. 3d 1252, 1259 (Fed
Cir. 1995). In this case, upon consideration of the entire record, I conclude that the.proffered
settlement is appropriate under the criteria set forth in section 11 O(i) of the Act. ·. · ·
WHEREFORE, the motion for approval of settlement is GRANTED, and it is
ORDERED THAT THE SUCCESSOR OPERATOR, BLUE MOUNTAIN ENERGY, .
INC., PAY a penalty of $5,500.00 to the Secretary of Labor within 40 days of
orde~.
Upon receipt of payment, this case is dismissed.
·
· ·

thiS

;'~. ~~ ·
Au
F. Cetti
Administrative Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway; ·
Suite 1600, Denver, CO 80202-5716
Timothy M. Biddle, Esq., CROWELL & MORING L.L.P. , 1001 Pennsylvania Ave. NW,
Washington, D.C. 20004-2595

Ish

1390

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVE~ CO 80204-3582
303-844-3577/FAX 303-844-5268

AUG 111997
SECRETARY OF LABO~
1vfiNE SAFETY AND HEALTil
ADMINISTRATION (MSHA),
Petitioner

CnnLPENALTYPROCEEDINGS
Docket No. WEST 96-80
A.C. No. 05-02820-03775

v.

Docket No. WEST 96-126
A.C. No. 05-02820-03779

BASIN RESOURCES, INC.,
Respondent

Docket No. WEST 96-127
A.C. No. 05-02820-03780
Golden Eagle Mine
DECISION

Appearances:

Kristi L. Floyd, Esq. and Edward Falkowski, Esq., Office of the Solicitor,
and Ned Zamarripa, Conference and Litigation Representative, Mine
Safety and Health Administration, U.S. Department of Labor, Denver,
Colorado, for Petitioner;
Andrew Volin, Esq., Shennan & Howard, Denver, Colorado, for
Respondent.

Before:

Judge Manning

These cases are before me on petitions for assessment of penalties filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Basin
Resources, Inc. ("Basin Resources"), pursuant to sections 1OS and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815 and 820. The petitions allege 45 violations of
the Secretary's safety and health regulations. A hearing was held in Denver, Colorado. The
parti.es presented testimony and documentary evidence, and Basin Resources filed a post-hearing
brief.
The Secretary filed a motion to amend the petitions for penalty to add Entech, Inc., and
Montana Power Company as respondents in these and other Basin Resources cases. For the
reasons set forth in Basin Resources, Inc., 19 FMSHRC 699, 699-704 {April 1997), the
Secretary' s motion is denied.

1391

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Roof and Rib Support
I. Order No. 4058110
On August 16, 1995, MSHA Inspector Earl Simmons issued a section 104(d)(2) order
alleging a violation of 30 C.F.R § 75.220(a)(1 ). In the order, the inspector alleged that Basin
Resources failed to follow its roof control plan. The order alleges that there was 24 feet of
unsupported roof between the last row of roof bolts and the face in the No. 2 right entiy crosscut
of the 011-0 MMU in the 3n1 North section. The order alleges that the foreman was aware that
the cut was too deep, but did not correct the condition or notify the crew. He determined that the
violation was significant and substantial ("S&S") and was caused by Basin Resources'
unwarrantable failure. The Secretary proposes a penalty of $9,000 for the alleged violation.
The mine's roof control plan provides for a maximum cut of20 feet. (Ex. G-2).
Inspector Simmons testified that the condition was serious because of the history of roof
falls at the mine and the fact that water was running from the area, indicating that cracks were
present in the roof. (Tr. 12). He believed that the condition had existed for about three hours.
He determined that the violation was the result of Basin Resources' unwarrantable failure
because the foreman was aware of the condition but ''took no action to protect the men" who
would be entering the area to bolt the roof. (Tr. 14). The inspector believed that the foreman had
a duty to warn the bolters of the deep cut so that they could take extra precautions. The deep cut
was made on the previous shift. (Tr. 20).
Basin Resources does not contest the fact of violation, but contends that the violation was
neither S&S nor the result of its unwarrantable failure. It contends that the record does not
support an inference that the 24-foot deep cut made a roof fall reasonably likely. In addition, it
argues that the fact that the area was dangered off made it unlikely that anyone would enter the
area, except the roof-bolting crew, who would be protected by the ATRS system on the bolting
machine. Basin Resources contends that the violation was not caused by its unwarrantable
failure because the inspector's allegation is based on two invalid assumptions: that the foreman
had definite knowledge that there was a deep cut and that the crew would enter the area of the
deep cut without having been warned that there had been a deep cut.
The deep cut had been made on the previous shift and there is no evidence as to how or
why it occurred. When David Oxford, the section foreman on the swing shift, observed the area,
he thought that the area looked deep, but was not sure if it was a deep cut, or if part of the roof
had fallen. (Tr. 529-30). There is no question that the area was dangered off. The three-member
crew and the equipment in the section were in a·different area. Mr. Oxford testified that he did
not immediately tell the crew about the cited condition because he was not certain that it was
deep and the crew was working in an area a great distance away. (Tr. 533). He stated that he
was going to tell the miners about the possible deep cut when the crew traveled to the area to
begin work there. (Tr. 534). He stated he would not have left the section, as feared by the

139 2

inspector, without first talking to the crew about the No.2 entry. (Tr. 535). I credit Mr. Oxford's
testimony.
I find that the Secretary did not establish the four elements of the Commission's S&S test.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). The third element of the test is important
in this case: whether it was reasonably likely that the hazard contributed to would result in an
injury. This element does not require the Secretary to establish that it was more probable than
not that an injury would result from the hazard contributed to by the violation. U.S. Steel Mining
Co., 18 FMSHRC 862, 865 (June 1996). The test is whether an injury is reasonably likely. The
hazard is falling roof. It is not clear if any of the previous roof falls in the mine occurred because
of deep cuts. The affected area was dangered off. The deep cut would only pose a hazard if the
roof-bolting crew entered the area without being told that the cut was deep or if they failed to
notice that the cut was deep. While it is possible that the roof bolting crew could enter the cited
area without Mr. Oxford's knowledge, such an event was unlikely. In additio~ it is likely that
the crew would have noticed the deep cut once they anived in the area I find that the Secretary
failed to establish the third element of the Mathies S&S test.
I find that the Secretary did not establish that the violation was the result of Basin
Resources' unwarrantable failure. Unwarrantable failure is aggravated qoncJuct constituting more
than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997,2004 (December 1987).
Unwarrantable failure is characterized by such conduct as "reckless di~regard/' "intentional
misconduct," "indifference," or a "serious lack of reasonable care." /d. at 2003·04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991).
The inspector was concerned because the oncoming foreman failed to warn the crew
about the condition. (Tr. 25-26, 35). The foreman's actions did not demonstrate aggravated
conduct. He was aware that the area looked deep and that extra precautions would have to be
taken. The only way to correct the violation was to have the area roof bolted. The bolting
machine and his crew were working elsewhere. The bolting crew was not scheduled to enter the
area with the deep cut until later in the shift. The foreman's failure to immediately warn the roof
bolters did not demonstrate reckless disregard, indifference, or even a serious lack of reasonable
care. The record shows that he frequently communicated with the members of his crew and there
is no indication that he would have ignored the deep cut when it came time for the roof bolters to
enter the area. The order is modified to a section 104(a) citation.
2. Citation No . 3298166
On October 26, 1995, Inspector Mike Stanton issued a citation alleging a violation of
section 75.202(a). In the citation, the inspector alleges that the roadway in the five left section
contained cracked and broken ribs that created a hazard. The citation also states that the roof was
loose near the intersection of the No. 19 crosscut and near the face areas of the Nos. 1 through 3
entries. Finally, the citation states that the ribs and roof in all three entries and crosscuts off the
No.2 entry were spalling. Inspector Stanton detennined that the violation was S&S. The
Secretary proposes a penalty of$2,800 for the alleged violation. Section 202(a) provides, in part,

1393

that roof and ribs of"areas where persons work or travel shall be supported or otherwise
controlled to protect persons from hazards related to falls" of the roof or ribs.
Inspector Jeffrey Fleshman, who accompanied Inspector Stanton, testified that the cited
area was taking weight and some of the ribs were cracking open on the comers an.d sloughing off.
(Tr. 330). He stated that a rib feU at the intersection of the No. 19 crosscut and the No.2 entry
while the inspectors were in the area. (Tr. 331; Ex. G-12). He stated that preshift examiners
were exposed to the hazard of this particular rib. (Tr. 333). He testified that Basin Resources
had been cutting into the roof and floor in this area, which put weight on the ribs. (Tr. 335). He
determined that ribs were loose based on a visual examination. (Tr. 343). Inspector Stanton .
testified that the roof and ribs were loose in the areas that he inspected. (Tr. 350; Ex. G~ 12). It
appeared to him that the roof was "settling down" and putting pressure on the ribs. (Tr. 352).
Basin Resources contests the violation for two basic reasons. First, it contends that the
area was subject to a section I03(k) order following a fatal accident that occWTed the day before
and that its employees had not been allowed into the area to maintain the ribs and roof while the
order was in place. Second, it argues that the evidence shows that the ribs and roof were not
·
loose.
The evidence indicates that only a portion of the area cited by Inspector Stanton was
covered by a section 103(k) order. (Tr. 332; Ex. G-12). Entry No. 2 was blocked-offinby
Crosscut No. 19. Id Most of the areas cited by the inspector were outby that area Miners were
required to be in the area to check for methane and to perform other functions. The Secretary
established that at least some of the areas cited by Inspector Stanton were loose. I credit the
testimony of Basin Resources' witnesses that some of the cited areas could not be easily barred
down. Nevertheless, I find that some of the areas cited were loose. Indeed, one section of the rib
in the No. 2 entry outby crosscut No.l9 fell during the inspection. I find that the Secretary .
established an S&S violation of section 75.202(a).
3. Citation No. 4057725
On October 31, 1995, Inspector Melvin Shiveley issued a citation alleging a violation of
section 75.202(a). In the citation, the inspector alleges that the mine roof in entry No. 4, east
mains, was not adequately supported or controlled in that rib cutters were present on both sides
of the entry for a distance of about 80 feet. He alleges that the mine roof in the area was taking
weight. lnspe.c tor Shiveley determined that the violation was S&S. The Secretary proposes a .
penalty of$1 ,400 for the alleged violation.
Inspector Shiveley testified that a rib cutter is a deep crack in the roof adjacent to the rib
where material has fallen out. (Tr. 166). He measured the cited cutters and some were 20 to 24
inches deep while others were 8 to 12 inches deep. /d The cutters were in the belt entry and
were about 80 feet long. He stated that loose material was present in the cutters. (Tr. 1'67, 174 ).
He believes that the presence of roof cutters indicates that additional support is required. (Tr.
170). He testified that the area was roof-bolted but that J-channels were not present. (Tr. 172).

1394

Basin Resources contends that the cited area was fully supported with J-charmels. In
addition, it maintains the cutters were caused by floor heave, rather than roof support problems.
Kay Hallows, the former safety director for the mine, testified that the primary cause of rib
cutters at the mine is floor heave, which pushes the soft coal pillar into the overburden. (Tr.
473). He testified that if the roof were taking weight in the area, the roof would have been
sagging in the middle of the entry. Id Jim Peterson, a former safety inspector with Basin
Resources, was present when the citation was issued. He testified that he examined the roof in
the area for signs of stress. (Tr. 510-11 ). He stated that he did not observe any indications that
the roof was taking weight ip the area. The roof-bolt plates did not show signs of stress, for
example. Id He further testified that the area did not need additional roof support, because the
area was fully roof-bolted and J-channels were present in the area (Tr. 510, 512; Ex. R-0). He
also felt that the cutters did Iiot represent a slippage of the roof, but were caused by the fact that
the pillars were cutting into the roof as a result of floor heave and a change in atmospheric
conditions. (Tr. 511, 518).
Inspector Shiveley testified that loose material was present in the cutters. (Tr. 174). Mr.
Peterson testified that there was some fallen material in the area that varied between a quarter of
an inch to a few inches in diameter. (Tr. 517). I credit the testimony that loose material was
present in the cutters that could fall on miners in the area. I credit the testimony of Messrs.
Hallows and Peterson, however, that the roof itself was not in danger of falling. Accordingly, I
affirm the citation but find that it was not S&S. I find that the evidence establishes there was
loose material in the roof, but that it was not reasonably likely that, if any material fell, it would
seriously inj~e anyone. I credit Basin Resources' evidence that the roof and ribs were generally
stable, but I find that additional support was necessary to protect miners in the area. ·
4. Citation No. 4057961

On November 8, 1995, Inspector Simmons issued a citation alleging a violation of section
75.220(a)(l). In the citation, the inspector alleged that Basin Resources failed to follow its roofcontrol plan. It states that the No.3 entry crosscut of the 011-0 MMU was cut to exceed the 20foot maximum width set forth in the plan. The area was 21 Y2 feet wide at one end and 23 Y2 feet
wide at the other end. The area was about 15 feet long. The citation alleges that additional
support was not provided in the wide areas and that there was unsupported roof inby the cited
area. He determined that the violation was S&S. The Secretary proposes a penalty of$1,400 for
the alleged violation.
Inspector Simmons testified that the.area of the wide cut was supported with roof bolts.
(Tr. 109, 116). The widest area was 23Yl feet wide. (Tr. 110; Ex. G-7A). The roof in the area
inby·this wide area was not supported because it had just been cut. ld He also testified that
water was running from the roof in the wide area. He believed that the violation was S&S
because the water would weaken the roof and, without supplemental support, the roof was
reasonably likely to fall and injure a miner. (Tr. lll-12, 117). He determined that the
unsupported area adjacent to the face contributed to the hazard. He testified that a roof-bolting
machine was parked in the area. (Tr. 112).
1395

The roof-.control plan provides that where an entry is wider than 20 feet, roof bolts and
supplemental support must be installed. (Tr. 116). Mr. Hallows testified that supporting the roof
in an area where the continuous mining machine operator accidentally cut the entry too wide is a
two-step process. First, the wide area must be roof bolted. (Tr. 468). Second, timbers or other
supplementary supports must be put into place. ld He stated that it is not safe to cany out step ·
two before step one is completed. (Tr. 469). This testimony was supported by Mr. Peterson. (Tr.
521-22). He testified that the mine had completed step one when the inspector issued the citation
and that the area would have been timbered in the near future. (Tr. 522; Ex. R-R). Basin
Resources contends that the inspector improperly wrote the citation in the middle of the mining
cycle.
I fmd that the Secretary established a violation. Roof bolts had been installed in the wide
area, but supplemental supports had not. I find that the Secretary did not establish the third
element of the Commission's S&S test. I credit the evidence presented by Basin Resources that
timbers were going to be installed in the area. Although the condition presented a hazard, it was
not reasonably likely that the hazard would result in a serious injury, assuming continued mining
operations. Supplemental support would have been installed in the normal course of mining. In
addition, the area adjacent to the face would have been bolted.

5. Citation Nos. 4057722 and 4057672
Citation No. 4057722, issued by Inspector Shiveley on October 25, 1995, alleges an S&S
violation of section 75.202(a). Citation No. 4057672, issued by Inspector Simmons on
November 2, 1995, alleges a non-S&S violation of section 75.212. Basin Resources does not
contest the violations or the inspectors' other determinations. It only contests the amount of the
penalty. Based on the description of the violations in the citations, the inspectors' determinations
with respect to gravity and negligence, and the civil penalty criteria, I assess the penalties set
forth in section III of this decision.

B. Vcntilati9n
I . Order No. 4057482

On May 2, 1995, Inspector Fleshman issued a section 104(d)(2) order alleging a violation
of30 C.F.R . § 75.323(c)(l). In the order, the inspector alleged that effective changes or
adjustments were not made to the ventilation system to reduce methane concentrations in the four
left section, No. 3 return entry to less than one percent. He obtained methane reading of 1.4%
and 1.2% in that entry. He determined that the violation was S&S and was caused by Basin
Resources' unwarrantable failure. The Secretary proposes a penalty of$9,000 for the alleged
violation. Section 323(c)(l) provides, in part, that when 1.0% or more methane is present in a
return air split between the last working place on a working section and where that split of air
meets another split of air, "changes or adjustments shall be made at once to the ventilation
system to reduce the concentration of methane in the return air to less than 1%."

1396

Inspector Fleshman used a hand-held methane detector. Bottle samples indicated
methane levels of 1.2%. (fr. 225; Ex. G-8). Inspector Fleshman determined that there was a
violation based on a number of factors. He reviewed the weekly examination books. These
records indicated that the cited area had been experiencing levelS of methane over one percent
"off and on for a few weeks.'' (fr. 227). Methane readings of up to 1.3% were recorded in the
weekly examination book during the previous month. (fr. 228; Ex. G-9). He testified that he
issued the order because Basin Resources was not making "adequate changes to eliminate [the
methane]." (Tr. 228). The inspector believed that the company was not doing enough to correct
the problem. ld He determined that the violation was the result of the operator's unwarrantable
failure because of the history of methane in the area and the failure of the operator to reduce the
level of methane. (fr. 232-35). Basin Resources contends that it was making changes in the
ventilation in an attempt to reduce the level below one percent and that it did not violate section
75.323(c)(l).
It is clear that the discovery of methane at a level of 1.0 percent or more in a split of air
returning from a working section does not establish a violation of the safety standard. The
essence of a violation is the failure to make changes or adjustments to reduce the concentration
of methane in the return air to below one percent. See Jim Walter Resources, 9 FMSHR.C 533,
534 (March 1987)(ALJ). In order to understand this case, it is important to put the facts in
context. The area cited was in an entry that was being developed for a longwall section. The
methane readings were taken at the outby end of the entry some 4,000 feet from the working
section. (Tr. 239; Ex. R-C2 map). In fact, the location where the inspector took his methane
readings was 50 inby the area where the split exited the 4 left section. (Tr. 239-40). At all
pertinent times, the methane levels in the area just outby the working section were below one
percent. (Tr. 239).
In the weeks preceding May 2, the methane level in the returns varied considerably.
Readings ranged between 0.3% and 1.3%. (Ex. R-G). Inspector Fleshman took the met}_lane
readings set forth in the order on May I at about 7:25p.m. (Tr. 252; Ex. R-C2 p.3). Basin
Resources immediately began taking steps to reduce the methane below one percent. (Tr.253).
At about 8:00 p.m., Basin Resources installed a partial curtain "in the belt entry to try to take air
off the belt entry and direct it down the return." (fr. 253; Ex. R-C2 p.3). Another reading was
taken at about 9:00 p.m., which showed that the methane was still too high. During the next
hour, Basin Resources made changes at the third north regulator in an attempt to reduce the level
of methane. (ld at 254). This change redirected about 8,600 cfm of air. At about 11:35 p.m.,
the mine made another air change at this regulator to reduce the level of methane in the entries.
At about 2 :10a.m. on May 2, the inspector took another methane reading in the return.
The hand held methane detector showed a methane reading of 1.2% while bottle sample showed
1.04% methane. (Tr. 256; Ex. R-C2 p.3). At that time, Inspector Fleshman issued a non-S&S
citation under section 104(a) of the Mine Act for the alleged violation that included a high
negligence finding. Shortly thereafter, the mine made adjustments to a curtain in the face area.
At about 3:30a.m., readings of about .8% and .9% methane were taken by Dave Pagnotta, the
shift supervisor. (Tr. 413-14; Ex. R-C2 pp. 2-3). It appears that Inspector Fleshman was advised

1397

of these readings before he left the mine. Jd Later on May 2, other adjustments w~re made to
the third north No. 1 entry regulator and the third left intake. (Tr. ; Ex. R-C2 p.3). Readings
between .7% and .8% were obtained after these changes were made. At about 4: 10 p.m. on May
2, Inspector Fleshman called to advise the mine that he was modifying the citation to a section
104(dX2) order with S&S findings. (fr. 260). Inspector Fleshman testified that he modified the
citation at the direction of his field office supervisor, Larry Ramey. (fr. 250). The inspector
testified that he told the general mine foreman, Derrel Curtis, that he disagreed with the
modification. ld Derrel Curtis confirmed this conversation. (fr. 379-80).
Inspector Fleshman testified that the reason why he issued the citation was because the
changes that were made at the mine between 7:25p.m. on May 1 and 2:10am. on May 2 ''were
not effective in reducing the methane." (fr. 260). He believed that the quantity of air being
directed to the return entry to dilute the methane did not increase with these changes with the
result that the concentration of methane did not decrease. (Tr. 262). He felt that the initial
changes made were temporary expedients rather than permanent changes. (fr. 268). He believed
that the methane problem was cause by a short circuit in the ventilation system. (fr. 270).
Inspector Fleshman interprets the safety standard to mean that if an operator is given a reasonable
time to make changes and the changes it makes "are not satisfactory to reduce the methane, [an
inspector has] no choice but to issue the citation." (Tr. 263). In this instance he believed that
five hours was a reasonable time to comply with the standard. ld He does not dispute that mine
officials were acting in good faith to comply with the standard when making the changes. (fr.
264, 266-67).
I find that the Secretary did not establish a violation of the standard. It is clear that Basin
Resources started making changes and adjustments to the ventilation system in the 4 left returns
to try to reduce the concentration of methane as soon as the high reading was reported. Derrel
Curtis testified that the company made extensive adjustments to the ventilation system to reduce
the methane on the day the citation was written. (fr. 387). Although Inspector Fleshman
believed that the methane problem was caused by a short circuit in the ventilation system, he
agreed that the company was making good faith attempts to bring down the concentration of
methane. He issued the citation at 2:10a.m. on May 2 because the company' s attempts were not
successful. There may come a point when a mine operator has exhausted its options or has been
given sufficient time to reduce the level of methane. But in this case, the evidence shows that
Basin Resources was proceeding as quickly as it could to make effective changes in the
ventilation system. There is no allegation that it was not paying sufficient attention to the
problem or that it had not devoted sufficient resources to it. Accordingly, the order is vacated.
2. Order No. 4057464
On June 13, 1995, Inspector Fleshman issued a section 104(d)(2) order alleging a
violation of30 C.F.R. § 75.370(a)( l). In the order, the inspector alleged that the ventilation plan
was not being followed in that several ventilation devices were not being maintained in a manner
to serve their intended purpose. The order states that a 2 \12 foot square man door was blocked
open in the 3 north section, No. 3 entry, between crosscuts 49 and 50, which allowed 48,431 cfm

1398

of intake air to be short-circuited into the return. In addition, the order alleges that the stopping
in the same entry between crosscut Nos. 53 and 54 was blown QUt He determined that the
violation was not S&S but was caused by Basin Resources' unwarrantable failure. The
Secretary proposes·a penalty of $6,500 for the alleged violation.
Basin Resources does not contest the fact of violation, but contends that the violation was
not the result of its unwarrantable failure. Inspector Fleshman testified that he considered the
violation to be unwarrantable because the mine had a history of methane problems, the stopping
.had been blown out for ."quite some time," the date-board indicated that the area had been
examined by the weekly examiner, and the examiner told the inspector that the stopping had been
blown out for a long time. (fr. 289-91, 294; Ex. G-lOB). The inspector believes that the short
circuit created by this violation was responsible for the methane problems in the return described
in Order No. 4057482 above. (fr. 302). He stated that about 48,000 cfm of air was coursing
through the stopping. (Tr. 298). He testified that he talked about the blown-out stopping with
Ed DomingueZ, the UMWA fireboss, who advised him that the condition had existed for several
months. (Tr. 294, 297, 302). The inspector said that he became upset with Mr. Dominguez
because he had not taken any steps to correct the problem or report·it to management. Id
Mr. Hallows spoke with Mr. Dominguez the day after the order was issued. Mr.

Dominguez told Mr. Hallows that he did not understand why the inspector issued the order. (Tr.
437). He told Hallows that, except for some minor leakage, the stopping was intact the day
before the order was issued. (Tr. 437-38). Mr. Dominguez, who is no longer employed by Basin
Resources, testified that he was a UMWA fire boss with 20 years of underground coal mining
. experience. He was on the UMWA safety committee. He testified that he examined the area the
day before the citation was-issued and the stopping was intact. (Tr. 482-83). He denied that he
told the inspector that the condition had existed for several months. (fr. 486). On rebuttal,
Inspector Fleshman stated that he had several conversations with Mr. Dominguez on June 13 and
that he may have misunderstood what Mr. Dominguez was trying to tell him. (Tr. 568-70).
The principal reason for Inspector Fleshman's unwarrantable failure finding is the length
of time that the condition existed with the knowledge of the fire boss. I credit the testimony of
Mr. Dominguez that the condition had not existed for as long a period of time as the inspector
believed. Accordingly, I vacate the inspector's unwarrantable failure determination, and affirm
the violation as a section 104(a) citation.
3. Order No. 4057466
On June 15, 1995, Inspector Fleshinan issued a section 104(d)(2) order alleging a
violation of30 C.F.R. § 75.370(a)(l). In the order, the inspector alleged that the ventilation plan
was-not being followed because the third north roadway, entry No.5, between crosscut Nos. 49
and 57, was extremely dry and dusty. He determined that the violation was not S&S but was
caused by Basin Resources' unwarrantable failure. The Secretary proposes a penalty of $6,500
for the alleged vioJation.

1399

The provision of the ventilation plan that Inspector Fleshman contends was violate9
provides that dust on haulage ways "shall be controlled by water wetting or calcium/magnesium
chloride applications or other dust suppressants as needed to maintain respirable dust on intake at
or below 1.0 mglm3." (fr. 312; Ex. G-11). _He stated that dusty roadways present three hazards:
(1) a risk of a fire or explosio~ (2) reduced visibility, (3) respirable dust. (Tr. 312-13). The
inspector testified that the air velocity in the area was high and one could see suspended dust
whenever a vehicle passed. (fr. 314). He said the condition was obvious and the operator's
negligence was high. He testi.fied that the area dries out so quickly that the entry requires a
continuous application ·of water. (fr. 315). He stated that he did not mark the order as S&S
because he did not take a sample of the dust to see if respirable dust exceeded 1.0 mg/m3• ld He
determined that the violation was unwarrantable because the roadway had been cited many times.
(Tr. 316). Inspector Fleshman was advised that the road had been watered earlier that shift. (Tr.
317-18).
The cited provision of the ventilation control plan is unambiguous. Dust on roadways
must be controlled ''to maintain respirable dust on intake at or below 1.0 mglm3.'' (Ex. 0-11).
The Secretary did not establish that respirable dust was greater than 1.0 mg/m3• Accordingly, the
Secretary did not meet its burden of proof. Energy Fuels Coal Co., Inc., 12 FMSHRC 698, 70304 (April 1990)(ALJ). For the reasons set forth in that decision, the order is vacated.
4. Citation No. 4057727
On October 31, 1995, Inspector Shiveley issued a citation alleging a vi9l~tion of section
75.370(a)(l ). In the citation, the inspector alleges tliat Basin Resources was ~ot 9Qmplying with
the ventilation plan in the 5 left section, entry Nos. 2 and 3, because <by haul roads existed for a
distance of II 0 feet starting at crosscut No. 19. Inspector Shiveley determined that the violation
was not S&S. The Secretary proposes a penalty of $1,019 for the alleged violation.
The Secretary relies on the same provision of the ventilation plan as Order No~ 40~7466
above. The Secretary did not establish that the respirable dust was greater th~ 1.0 mglm3 • For
the reasons discussed above, the citation is vacated.
5. Citation No. 4057742
On October 4, 1995, Inspector Shiveley issued a citation alleging a violation of section
75.35l(f). In the citation, the inspector alleges that the atmospheric monitoring system ("AMS")
for the bleeder system in NW-1 through NW-6 had not been calibrated at least once every 31
days. The citation states that it was last calibrated on September 1, 1995. Inspector Shiveley
determined that the violation was not S&S. The Secretary proposes a penalty of $1,019 for the
alleged violation.
Inspector Shiveley determined that there was a violation based on his review of the
company's records. (Tr. 162). Mr. Hallows testified that Basin Resources could not calibrate the
AMS because the area was subject to a section 107(a) order of withdrawal. (Tr. 450; ~x. R-L).

1400

::

The record reveals that a section 107(a) order was issued by Inspector Shiveley on September 5,
1995, and that the order was not terminated until October 10, 1995. (Ex. R-L). The order states
that it covered the No. 3 entry of the four left longwall starting inby crosscut No. 44 and
continued for a distance of 50 feet ld There is no dispute that the calibration could not be made
in the area covered by the imminent danger order. Nevertheless, the Mine Act imposes strict
liability and the citation is affirmed as a non-serious violation with low negligence.
6. Citation No. 4057673
On November 2, 1995, Inspector Simmons issued a citation alleging a violation of section
75.364(a)(2)(iii). In the citation, the inspector alleges that the four left bleeder entry was not
examined in its entirety at least every seven days. The citation states that the bleeder had not
been examined beyond crosscut No. 38 because the entry was blocked by a roof fall or floor
heave. The last examination was conducted on October 25, 1995. Inspector Simmons
determined that the violation was not S&S. The Secretary proposes a penalty of $1 ,019 for the
alleged violation. The safety standard requires a weekly examination of at least one entry of
each set of bleeder entries used as part of a bleeder system.
There is no dispute that the weekly examination was not performed beyond crosscut No.
38. The standard requires that the examiner travel the entry "in its entirety." Basin Resources
could not get into the area to perform the examination because of the conditions in the area The
inspector admitted that a person could not get through the entry beyond that crosscut. (Tr. 71 ).
The standard provides that a primary purpose of the examination is to measure methane and
oxygen concentrations, and to determine if a sufficient quantity of air is moving in the proper
direction. The inspector was concerned that methane could build up in the bleeder or water could
accumulate. (Tr. 72).
Basin Resources argues that the citation should be vacated because unsafe conditions
made an examination impossible. It points to section 75.364(d), which requires that hazardous
conditions be corrected immediately and miners withdrawn from the area until the conditions are
corrected. I find that the Secretary established a violation. Basin Resources did not perform a
sufficient examination of the bleeder entry to comply with the requirements of the standard. The
fact that it was blocked may be taken into consideration when evaluating negligence. Basin
Resources was required to correct the hazardous condition immediately. Accordingly, the
citation is affirmed as a non-serious violation with low negligence.
7. Citation No. 4057680
On November 8, 1995, Inspector Simmons issued a citation alleging a violation of 30
C.F.R. § 75.380(d)(l). In the citation, the inspector alleged that the primary escapeway in the
No. Four entry of the 3rd North section was not being maintained to assure safe passage of
miners because water in excess of20 inches was present between crosscuts 66 and 67. He
determined that the violation was not S&S. The Secretary proposes a penalty of$1,450 for the

1401

alleged violation. The safety standard requires escapeways to be maintained in a s~e condition
to "always assure passage of anyone, including disabled persons .~'
Inspector Simmons testified that he ~as concerned that someone traveling through the
water could fall and become seriously injured. (Tr. 100): He assumed that miners would take an
alternate route that was not affected by the water. (Tr. 10 1·02). Mr. Hallows testified that the
mine was in the process of pumping out the water in the area and that the escapeway had been
rerouted to avoid the water. (Tr. 464·65; Ex. R·S). I find that the Secretary established a
violation. Basin Resources' argument that the citation should be vacated because the escape had
been rerouted is rejected. Accordingly, the citation is affirmed as a non·serious violation.
8. Citation Nos. 4057506 and ;4057962
Citation No. 4057506, issued by Inspector Fleslunan on May 24, 1995, alleges an S&S
violation of section 75.380(d)(4). It was originally issued as a section 104(d)(2) order, but the
parties agreed to reduce the level of negligence, delete the unwarrantable failure designation, and
modify it to a section 104(a) citation. (Tr. 4, 285·86). Citation No. 4057962, issued by Inspector
Simmons on November 9, 1995, alleges a non·S&S violation of section 75.364(b)(2). Basin
Resources does not contest the violations or the inspectors' other detenninations. It only contests
the amount of the penalty. Based on the description of the violations in the citations, the
inspectors' determinations with respect to gravity and negligence, and the civil penalty criteria, I
assess the penalties set forth in section III of this decision.

C. Combustible Materials
1. Order No. 3849793
On April 7, 1995, Inspector Shiveley issued a section 104(d)(2) order alleging a violation
of section 75.400. In the order, the inspector alleges that accumulations of paper, empty oil cans,
and broken wooden pallets were allowed to be stored in a trash wagon in crosscut 39 of 4 Left
section. The order states that miners have been putting trash in the wagon for two days. It also
states that the practice of storing trash in open trash wagons was previously discussed with
management. Inspector Shiveley detennined that the violation was not S&S and was caused by
Basin Resources' unwarrantable failure. The Secretary proposes a penalty of $6,000 for the
alleged violation. Section 75.400 provides, in part, that coal dust and other combustible
materials shall be cleaned up and not be allowed to accumulate in active workings.
Inspector Shiveley testified that when he saw the trash wagon, he asked Joe Whalen, a
miner, how long it had been there. He testified that the miner replied that the wagon had been
there at least a day and half. (Tr. 124). He also believed that the amount of trash in the wagon
indicated that it had been there for some time. (Tr. 131 ). The inspector immediately issued the
order. ld. He determined that the violation was unwarrantable because the issue of trash wagons
had been previously discussed with mine management. (Tr. 125-28). In addition, the condition
was obvious and management should have realized that the wagon needed to be emptied. ld

1402

Tom Sciacca,· a former accident-prevention coordinator at the mine, testified that the
amount of trash in the wagon could have accumulated in a shift. (Tr. 403, 405-07). He stated
that the procedure at the mine was to dump the trash onto a rail car whenever it became full. (Tr.
404). He stated that the trash wagon was scheduled to be removed from the section the morning
of April 7. ld
It is clear that the trash wagon had been in crosscut 39 for a day and a half, but it is not
clear how long the trash had been there. (Tr. 132). It could have been emptied during that period
without the knowledge of Mr. Whalen. (Tr. 137). I credit the testimony of Mr. Sciacca that trash
can accumulate quickly. When a trash wagon is taken to be emptied, another trash wagon is put
in its place. (Tr. 407). Thus, the fact that a trash wagon was in an area for several days does not
establish that the trash had been there for the same length of time.
A mine operator is required to immediately remove accumulations of coal dust. Trash is
another matter, however. Under the standard, a mine operator must have a regular program to
clean ~P trash. Whether there is a violation must be considered on a case-by-case basis. Basin
Resources collects its trash in trash wagons and removes them when they are full. I find that the
Secretary did not establish a violation. Inspector Shiveley relied on the statement of Mr. Whalen
to establish a violation. He did not ask Mr. Whalen if he knew how long the trash had been in
the crosscut, he asked how long the wagon had been there. Thus., the Secretary did not establish
that the trash had been allowed to accumulate in the crosscut for an unreasonable length of time.
See Basin Resources, Inc., 19 FMSHRC 711, 717-18 (April1997)(ALJ). Accordingly, the order
is vacated.
2. Order No. 4057499
On May 24, 1995, Inspector Fleshman issued a section 104(d)(2) order alleging a
violation of section 75.400. In the order, the inspector alleges that about 30 empty rock-dust
bags, cardboard, empty plastic containers, and rags were allowed to exist in 4 left section along
Crosscut 41 between entry Nos. 2 and 3. Inspector Fleshman determined that the violation was
not S&S and was caused by Basin Resources' unwarrantable failure. The Secretary proposes a
penalty of$7,000 for the alleged violation.
Inspector Fleshman testified that the violation was unwarrantable because he observed the
trash on the previous day and told Mr. Sciacca that it needed to be cleaned up. (Tr. 276; Ex. R02). Mr. Sciacca testified that a trash wagon had been hooked up to a scoop and was.traveling
around the mine picking up trash when the. order was issued. (Tr. 417). He stated that the cited
accumulation had not been cleaned up because the trash wagon had not arrived at that location at
the time of the inspection. (Tr. 418). He testified that the wagon arrived about 10 minutes after
the order was issued. Inspector Fleshman warned Mr. Sciacca about the trash at 2:50 a.m. on
May 23 and issued the order at 12:50 a.m. on May 24.
Basin Resources does not contest the violation but contends that it was not ~used by its
unwarrantable failure. Unwarrantable failure is aggravated conduct constituting more than

1403

ordinary negligence. It is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of reasonable care." The Commission has held
that "a number of factors are relevant in determining whether a violation is the result of an
operator' s unwarrantable failure, such as the extensiveness of the violation, the length of time
that the violative condition has existed, the operator's efforts to eliminate the violative condition,
and whether an operator has been placed on notice that greater efforts are necessary for
compliance." Mullins and Sons Coal Co., Inc., 16 FMSHRC 192, 195 (February 1994)(citation
omitted).
In this case, the violative condition had existed for at least a day and Basin Resources was
·put on notice that greater efforts were necessary to come into compliance. On the other hand, th~
violation was not particularly extensive and operator had begun efforts to come into compliance.
Taking these factors into consideration, I find that the Secretary established that the viol1;1tion was
the result of Basin Resources' unwarrantable failure. The failure to remove the trash in a more
expeditious manner was the result of a serious lack of reasonable care.
3. Citation No. 4057613
On September 20, 1995, Inspector Shiveley issued a citation alleging a violation of 30
C.F.R. § 77.202. In the citation, the inspector alleged that fine coal dust was allowed to
accumulate on electrical control boxes in the control room of the coal tipple building. The
citation states that the fine coal dust was on top of all of the control boxes and was one-sixteenth
to one-eighth of an inch thick. He detennined that the violation was not S&S. The Secretary
proposes a penalty of $1 ,019 for the alleged violation. The safety standard states, in part, that
coal dust shall not be allowed to accumulate in dangerous amounts on the surfaces of structures,
enclosures, or other facilities.
Inspector Shiveley testified that when he entered the electrical control room, he 9bserved
a layer offme coal dust on the surfaces of electrical equipment. (Tr. 147). He·determined that it
was unlikely than anyone would be injured as a result of the violation, but that coal dust was
present in a combustible amount. (Tr. 148). He stated that even a small film of coal dust is
combustible and would be a violation of the standard. He testified that arcing occurs when
electrical control boxes are turned on or off creating an ignition source for the fine coal dust. (Tr.
151).
Basin Resources argues that the mere presence of coal dust is not a violation of the
standard. Rather, the Secretary must show that the amount of dust is sufficient to propagate a
fire. I find that the Secretary met her burden of proof. Whether an accumulation of fine coal dust
is '1dangerous" depends on the amount of the accumulation and the existence and locati<:>n of
sources of ignition. See Rochester and Pittsburgh Coal Co., 12 FMSHRC 220, 231-32 (February
1990)(ALJ). The inspector detennined that the accumulation was one-eighth of an inch thick in
many areas and that it covered all surfaces. There were sources of ignition in the it11Il1ediate
vicinity. Although it was unlikely that the accumulation would ignite and cause a serious injury,

1404

the flne coal dust Was allowed to accumulate in dangerous amounts. Accordingly, the violation
is affirmed.
4. Citation Nos. 4057647. 4057726. 4057674. and 4057963
Citation No. 4057647, issued by Inspector Simmons on September 29, 1995, alleges a
non S&S violation of section 75.400. Citation No. 4057726, issued by Inspector Shiveley on
October 31, 1995, allegC?s a non-S&S violation of section 75.402. Citation No. 4057674, issued
by Inspector Simmons on November 3, 1995, alleges a non S&S violation of section 75.403.
Citation No. 4057963, issued by Inspector Simmons Qn November 14, 1995, alleges an S&S
violation of section 75.400. Basin Resources does not contest the violations or the inspectors'
other determinations. It only contests the amount of the penalty. Based on the description of the
violations in the citations, the inspectors' determinations with respect to gravity and negligence,
and the civil penalty criteria, I assess the penalties set forth in section lll of this decision.

D. Electrical Equipment
1. Citation No. 4057676
On November 6, 1995, Inspector Simmons issued a citation alleging a violation of 30
C.F.R. § 75.512. In the citation, the inspector alleged that a complete weekly examination had
not been conducted on all electrical equipment for the week of October 29 through November 4,
1995. The citation states that the circuits in the monitoring system for the bleeders from NW-1
through NW-6 were last examined on October 25. He determined that the violation was not
S&S. The Secretary proposes a penalty of $1,019 for the alleged violation. The safety standard
requires that all electrical equipment be examined on a weekly basis, at section 75.512-2.
There is no dispute that a complete weekly examination was not.performed. Basin
Resources contends that its personnel could not get into the area to perform the examination
because of the conditions in the area. The inspector admitted that a person could not get to the
cited circuits because the area was blocked by the same roof fall discussed·with respect to
Citation No. 4057673. (Tr. 88-89, 91). Mr. Hallows testified that, due to unSafe roof conditions,
the examination could not be made. (Tr. 462; Ex. R-Q).
Basin Resources argues that the citation should be vacated because unsafe conditions
made an examination impossible. I fmd that the Secretary established a violation. Basin
Resources did not perform the examinatio11 of the cited equipment. The Mine Act imposes strict
liability on mine operators. The fact that the area was blocked may be taken into consideration
when evaluating negligence. Accordingly, the citation is affimied as a non-serious violation,
with low negligence.

1405

2. Citation No. 4057612
On September 20, 1995, Inspector Shiveley issued a citation alleging a violation of 30
C.F.R. § 77.516. In the citation, the inspector alleged that the %-inch metal conduit for the 480volt power circuit to the vibrator screen motor in the coal tipple was not supported as required by
the National Electrical Code. The citation states that the conduit was required to be supported
within four feet of each box, cabinet, or other termination point. He determined that the violation
was not S&S. The Secretary proposes a penalty of $903 for the alleged violation. The safety
standard provides, in part, that all wiring and electrical equipment shall meet the requirements of
the National Electrical Code.
Basin Resources does not dispute that the condition violated the standard. It argues that
the condition had existed for some time and had never been cited by an MSHA inspector. Mr.
Hallows testified that the conduit had never been supported at the location cited by the inspector.
(Tr. 448; Ex. R-K). He further testified that MSHA inspectors had inspected the area many
times. Mr. Salerno confmned this testimony. (Tr. 544-47). I credit this testimony.
While it is true that MSHA inspectors had traveled through the area many times during
previous inspections and had never issued any citations for the condition, it is also true that Basin
Resources managers had traveled through the area on numerous occasions. It is a mine
operator's responsibility to take steps to comply with safety standards, not MSHA inspectors. I
affirm the citation as a non-serious violation and reduce the negligence slightly.
3. Citation Nos. 4057723. 3590053.4057611. and 4057677
Citation No. 4057723, issued by Inspector Shiveley on October 25, 1995, alleges a nonS&S violation of section 75.503. Citation No. 3590053, issued by Inspector Fleslunan on
October 26, 1995, alleges a non-S&S violation of section 75.503. Citation No. 4057611, issued
by Inspector Shiveley on September 20, 1995, alleges a non-S&S violation of section 77.502.
Citation No. 4057677, issued by Inspector Simmons on November 6, 1995, alleges a non-S&S
violation of section 75.507. Basin Resources does not contest the violations or the inspectors'
other determinations. It only contests the amount of the penalty. Based on the description of the
violations in the citations, the inspectors' determinations with respect to gravity and negligence,
and the civil penalty criteria, I assess the penalties set forth in section III of this decision.

E. Machinery and Equipment
l . Citation No. 4057648
On September 29, 1995, Inspector Simmons issued a citation alleging a violation of 30
C.F.R. § 75.1722(a). In the citation, the inspector alleged that a guard was not provided for the
right side of the take-up roller on the No. 8 belt conveyor. The guard was leaning against the
coal rib. The citation states that the belt and rear take-up roller could easily be contacted. He
determined that the violation was S&S and Basin Resources' negligence was moderate. The

1406

Secretary proposes.a penalty of$1,450 for the alleged violation. The safety standard requires, in
part, that guards be provided for gears; drive, head, tail, and take-up pulleys; flywheels; and
similar moving machine parts that may be contacted by and cause injury to persons.
Basin Resources Stipulated that the violation occurred and that the violation was S&S, but
contends that its negligence was low. (Tr. 38). Inspector Simmons testified that the guard was
taken off at some point and was leaning against the rib. (Tr. 40; Ex. G-4). He believes that the
person who took of the guard was "inattentive" and that a finding of moderate negligence is
appropriate. Id The belt was running when he issued the citation. He said that anyone could see
that the guard was leaning against the rib and had not been replaced. (Tr. 42, 42). He believed
that a miner should have been able to see this condition and correct it. /d.
Basin Resources argues that the condition was so obvious and easy to remedy that the
hourly employee who took off the guard should have replaced it before starting the belt. It
believes that the negligence of the miner who took off the guard should not be imputed to the
operator in this instance, citing Fort Scott Ferti/izer-Cullor, Inc.11 FMSHRC 1112, 1115-16
(July 1995).
The conduct of a rank-and-file miner is not imputable to the operator in determining
negligence for penalty purposes. ld. The Secretary bears the burden of proof on the issue of
negligence. I agree with Basin Resources that the Secretary did not establish that the company's
negligence was moderate. I find that Basin Resources' negligence was less than moderate and
reduce the penalty accordingly.
2. Citation No. 4057741
On October 4, 1995, Inspector Shiveley issued a citation alleging a violation of 30 C.F.R.
§ 75.1722(a). In the citation, the inspector alleged that a guard was not extended a sufficient

distance to prevent a person from reaching into fan blades and belts on a loader/forklift. The
citation states that a 3-by 18-inch opening was present in the engine compartment around the
generator pulley, a belt, and the fan blade. He determihed that the violation was S&S and Basin
Resources' negligence was moderate. The Secretary proposes a penalty of$1,450 for the alleged
violation.
Inspector Shiveley testified that a number of people work on and around the forklift. (Tr.
154). The area of exposure was about waist high and was within the area where people could
expose their hands. Id. He considered the yiolation to be S&S because of the activity and
exposure. (Tr. 155). He believed that it was reasonably likely that somebody would contact the
moying machine parts ~d sustain a serious injury. Jd. Mr. Sciacca testified that it would be
impossible for the operatot of the forklift to place his hands into the cited opening. (Tr. 419). He
testified that other miners could not get their hands into the opening because the mine uses
pallets to transport items. (Tr. 420-21). Thus, he did not believe that anyone would be close to
the opening when the forklift was operating.

1407

Basin Resources contests the inspector's S&S and negligence determinations. I fmd that
the Secretary met her burden of proof with respect to both detenninations. Assuming continuing
normal mining operations, it was reasonably likely that someone would inadvertently come into
contact with the moving machine parts. The Secretary is not required to esta.blish that it was
more probable than not that an injury would result. I find that it is reasonably likely that a miner
working around the forklift will slip or otherwise accidentally come·into contact with the moving
machine parts. The Secretary also established that Basin Resources was negligent with respect to
the violation.
3. Citation No. 4057675
On November 3, 1995, Inspector Simmons issued a citation alleging a violation of30
C.P.R. § 75.1722(c). In the citation, the inspector alleged that the guar(l provi4~ for the slope
belt tail roller was not secured in place while the belt conveyor was running. He determined that
an opening 2 ~ feet wide and 6 feet high was present that exposed the pinch points of the belt and
tail roller. He determined that the violation was S&S and Basin Resources' negligenc~ was
moderate. The Secretary proposes a penalty of $1,450 for the alleged violation. The safety
standard requires, in part, that guards shall be ~ecurely in place while mac~ery is being
operated, except when the machinery is being tested.
Inspector Simmons testified that a section of the guard was removed and not replaced.
(Tr. 81; Ex. G-6). He further testified that he has issued two citations in the past for the same
condition at this location. (Tr. 82). Basin Resources does not contest the viol~tion or the S&S
determination. It contends that the Secretary did not establish that its negligence was mo9erate,
as discussed above with respect to Citation No. 4057648. I find that the Secretary met her
burden of proof. On prior inspections, Inspector Simmons issued similar citations at tlte same
location. Management is responsible for taking adeq~te steps to ensure that its workforce
adheres to MSHA's safety standards. The citation is affirmed as written.
4. Citation No. 4057678
On November 6, 1995, Inspector Simmons issued a citation alleging a violation of 30
C.P.R.§ 75.1722(c). In the citation, the inspector alleged that the guard provided for the fan
pulley and belts on a continuous mining machine was not secured in place. The guard had slid
forward leaving a six-inch by six-inch opening directly in front of the fan pulley and belts. He
determined that the violation was not S&S and Basin Resources' negligenc;::e was mod~rate . The
Secretary proposes a penalty of $1 ,019 for the alleged violation.
Inspector Simmons testified that the mining machine operator should have ~a~~ s~~ that
the guards were in place. (Tr. 94). The machine operator should have taken steps to tilake sure
that the guard would not slide forward while the machinery was operating.
Basin Resources contends that it should be assessed a low penalty for this violation
because its negligence was low. It argues that the negligence of the mining machine operator in .

1408

not correcting the ·problem should not be imputed to it. There is no dispute that the sliding
problem was easy to fix. I agree with Basin Resources that the Secretary did not establish that
the company' s negligence was moderate. I find that Basin Resources' negligence was less than
moderate and reduce the penalty accordingly.

5. Citation No. 4057944 and Order No. 4057671
On October 17, .1995, Inspector Simmons issued a citation alleging a violation of 30
C.F.R. § 75.1403-5(j). In the citation, the inspector alleged that no guard or crossover was
provided inby the No. 5 left belt drive where a beltman was observed crossing under the belt
about ten feet inby the head drive. He determined that the violation was S&S and Basin
Resources' negligence was moderate. Section 1403-5(j) is a safeguard criterion that provides that
persons shall not cross moving belt conveyors except where suitable crossing facilities are
provided.
Inspector Simmons issued the citation ~use he observed a beltman crossing under the
moving belt. (Tr. 45). He stated that a safeguard was issued at the mine on February 24, 1994,
requiring crossovers or guards where persons travel under the belt. (Tr. 46). The safeguard
required the installation of a guard ''to prevent material from falling and to prevent persons and
equipment from contacting the belt conveyor at all locations where personnel and equipment pass
under moving belt conveyors." (Ex. G-5 p. 2). When the inspector arrived in the area, he
observed a beltrnan on the other side of the drive. Inspector Simmons asked him "how he got
over there," because the inspector wanted to go over there too. (Tr. 48-49). Instead of answering
him, the beltman apparently walked over to the inspector by going under the moving belt. Jd
The inspector then issued the citation. The belt was about five feet high at that location. The
inspector did not see any crossovers or guarded locations along the belt. (Tr. 52).
On November 1, 1995, Inspector Simmons issued Order No. 4057671, under section
104(b) of the Mine Act.· The order states that no effort was made to install a guard or crossover
inby the No. 5 belt drive where a beltrnan traveled under the belt. Inspector Simmons testified
that when he returned to the area two weeks later, no guard had been installed. (Tr. 52-53). He
also did not observe any material in the area to indicate that the operator had begun work on the
guard. The Secretary proposes a penalty of $4,600 for the alleged violation.
Basin Resources contends that the only reason that the beltman traveled under the moving
belt is because he thought Inspector Simmons was directing him to do so. Inspector. Simmons
admitted that it was possible that the belt~an crossed under the belt because the beltman thought
that the inspector wanted to talk to him. (Tr. 58). He testified, however, that this beltman told
him that he had crossed under the moving belt earlier in the shift. (Tr. 59). The inspector also
testified that there was no other way to get from one.side of the belt to the other in the vicinity of
the belt drive.
Mr. Salerno testified when the inspection party arrived at the belt, Inspector Simmons
"hollered something" to the beltman and the beltman walked under the belt to the inspector. (Tr.

1409

550). He testifi~d that there was a cross-under in the vicinity, but he did not know bow far away
it was. He also testified that between the time the original cita~on was issued and the section
104(b) order was issued, a guard was installed at the cited location. (Tr. 548-49; Ex. R-M). He
testified that the guard must have been removed in the interim.
I find that the Secretary established an S&S violation of the safeguard. It is undisputed
that the beltman walked under the moving conveyor while Inspector Simmons was there. More
importantly, the beltman told the inspector that he had walked under the conveyor in the past.
Based on the record, I fmd that a beltman would need to be on both sides of the belt dming a
shift and that there was no area in the vicinity where he could safely travel under the belt. The
violation was S&S because it was reasonably likely that a miner would be seriously injured,
asswning continued normal mining operations. Coal or other material could fall off the belt and
strike a miner, or a miner's clothing could become entangled in the moving parts and he could be
seriously injured as a result.
I credit the testimony of Inspector Simmons that the condition had not been abated when
he revisited the area on November 1, 1995. He originally detennined that the condition could be
abated in about three hours. Mr. Salerno testified that, depending on the availability of materials,
the guard could have been fabricated and installed in about three hours. (Tr. 552-54). He further
testified that the outby foreman told him that a guard had been put up after the citation was
issued. I fmd that the condition had not been abated on November 1. It is highly unlikely that a
guard would have been put up and then completely removed from the area. Basin Resources did
not present any testimony explaining why such an action would have taken place. Inspector
Simmons testified that there were no indications at the belt that a guard had once been in place or
that the company was in the process of installing a guard.
I find that the Secretary established a prima facie case that the "violation described in the
underlying citation existed at the time the section 104(b) order was issued." Mid-Continent
Resources, Inc., 11 FMSHRC 505, 509 (April 1989). I also fmd that Basin Resources did not
rebut the prima facie case by showing that "the violative condition described in the section
104(a) citation had been abated within the time period fixed in the citation, but had recurred." /d.
Accordingly, 104(b) order No. 4057671 is affirmed.

F. Other Citations
l. Citation Nos. 4057616. 4057617. 4057618.4057619. 4057620.4057649.4057650.
405765 I. 4057652. and 4057653.
On October 3, 1995, Inspectors Shiveley and Simmons issued citations alleging violations
of the Secretary's part 50 regulations. Citation No. 4057616 alleges a non-S&S violation of30
C.F.R. §50.30(a). The remaining nine citations allege non-S&S violations of section 50.20-1.
Basin Resources does not contest the violations or the inspectors' other determinations. It only
contests the amount of the penalty. The violations were not serious. Based on the description of

1410

the violations in the citations, the inspectors' determinations With respect to gravity and
negligence, and the civil penalty criteria, I assess the penalties set forth in section III below.
2. Citation No. 4057755
On October 18, 1995, Inspector Shiveley issued a citation alleging an S&S violation of
section 77:171 O(g). Basin Resources does not contest the violation or the inspector's other
determinations. It only contests the amount of the penalty. Based on the description of the
violation in the citation, the inspector's determinations with respect to gravity and negligence,
and the civil penalty criteria, I assess the penalty set forth in section mof this decision.
3. Citation No. 9894927
At the hearing, the Secretary agreed to vacate this citation. (Tr. 3-4).

II. APPROPRIATE CIVIL PENALTIES

Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. I find that Basin Resources was issued 925 citations and orders in the
24 months preceding October 17, 1995, and that Basin Resources paid penalties for 736 of these
citations and orders during the same period. (Ex. G-1B). I also find that Basin Resources was a
rather large mine operator. The Golden Eagle Mine shut down in December 1995 and is no
longer producing coal. Basin Resources has been unable to sell the mine. Its unaudited balance
sheet for April 30, 1996, shows that shareholders' equity was minus about 23 million dollars and
its income statement for the year ending April 30, 1995, shows a net loss of $325,000. 18
FMSHRC 1846, 1847 (October 1996). I have taken Basin Resources' financial condition into
consideration and find that the civil penalty assessed in this decision would not have affected its
ability to continue in business. With one exception, the Secretary has not alleged that Basin
Resources failed to timely abate the citations and order. Unless otherwise J;lOted above, all of the
violations were serious and the result of Basin Resources' moderate negligence. Based on the
penalty criteria, I find that the penalties set forth below are appropriate for the violations.

III. ORDER

Based on the criteria in section llO(j) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:

1411

30 C.F.R. §

Citation/Order No.

Penalty

WEST96-80
3849793
4057482
4057499
4057506
4057464
4057466
4058110

75.400
7S.323(c)(l)
75.400
75.380(4X4)
75.370(a)(l)
75.370(a)(l)
75.220(a)(1)

vacated
vacated
$4?000.00
J,200.00

77.502
77.516
77.202
75.400
75.1722(a)
50.30(a)
50.20-1
50.20-1
50.20-1
50.20-1
50.20-1
50.20-1

4QQ.OO
IOQ.OO
400.00
400.00
600.00
IQQ.OO
}Q().OO
lOQ!OO

400.00
VA~t~

400.00

WEST96-126
4057611
4057612
4057613
4057647
4057648
4057616
4057617
4057618
4057619
4057620
4057649
4057650
4057651
4057652
4057653
4057741
4057742
4057944
4057755

50.~0-1

lOP~OO

1Q(M)Q
100.QO
lQO.OO
JPO~QO

50.20-1
50.20-1
75.1722(a)
75.315(£)

H>O.OO
lQO.OO
1,200:00

15.1403-.(~)(j)

77. 1710(~)

4,500.00
1,2QQ.OQ

75.202(a)
75.503
75.202(a)
75.503
75.202(a)
75.402
75.370(a)(1)
75.212(c)

1,200.00
200.00
1,200.00
200.QO
400.00
200.00
vacated
400.00

~gp .Qg

WEST 96-127
4057722
4057723
32981 66
3590053
4057725
4057726
4057727
4057672

1412

Citation/Orde·r No.
4057673
4057674
4057675
4057676
4057677
4057678
4057680
4057961
4057962
9894927
. 4057963

30 C.F.R. §

Penalty

75.364(a)(2)(iii)
75.403
75.1722(c)
75.512
75.507
75.1722(c)
75.380(d)(l)
75.220(a)(l)
75.364(b)(2)
70.207
75.400

100.00
400.00
1,200.00
100.00
200.00
100.00
200.00
400.00
200.00
vacated
1,200.00

Total Penalty

$23,900.00

Accordingly, the Secretary's motion to amend the petitions for assessment of penalty is
ll~NlEQ, the citations and or<ler listed above are hereby VACATED, AFFIRMED, or
MODWIED as $et forth above, and Basin Resources, Inc., is ORDERED TO PAY the
Secretary ofLflbor the sum of$23,900.00 within 40 days of the date of this.~-.-

Richard W. Manning
Administrative Law Judge

Distribution:
Kristi Floyd, Esq., Office of the Solicitor, J).S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202-5716 (Certified Mail)
Ned D. Zamarripa, Conference and Litigation Representative, Mine Safety and Health
Administration, P.O. Box 25367, Denver, CO 80225-0367 (Regular Mail)
Andrew Volin, Esq., SHERMAN & HOWARD, L.L.C., 633 17th Street, Suite 3000, Denver, CO
80202 (Certified Mail)

1413

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 1 3 1997
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 96-235
A. C. No. 42-01280-03644

v.
Docket No. WEST 96-338
A. C. No. 42-01280-03654

WHITE OAK MINING
AND CONSTRUCTION CO., INC.,
Respondent

White Oak #2 Mine
DECISION

Appearances: Margaret A. Mil1er, Esq., Office of the Solicitor, U.S .. Department of Labor,
Denver, Colorado, Richard L. Bury, Conference and Litigation ;Representative.
Mine Safety a:nd Health Administration, Price, Utah, for Petitioner;
William K. Doran. Esq., Heenan, Althen & Roles, Washington, D.C., for
Respondent.
Before:

Judge Hodgdon

These consolidated cases are before me on Petitions for Assessment of Civil Penalty filed
by the Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA),
against White Oak Mining and Construction Company, Inc., pursuant to section 105 of the
Federal Mine Safety and Health Act of 1977,30 U.S.C. § 815. The petitions allege five
violations of the Secretary's mandatory health and safety standards and seek penalties of
$57,679.00. For the reasons set forth below, I vacate one order, affirm one order, modify and
affinn one citation, approve the settlement of the two remaining citations and assess penalties of
$33,880.00.
A hearing was held April22-24, 1997, in Price, Utah. The parties also submitted posthearing briefs in the cases.
Back&round .
The White Oak No. 2 Mine is an underground coal mine owned and operated by White
Oak Mining and Construction Company in Carbon County, Utah. White Oak began operating
the mine in 1993. The same mine had been operated by Valley Camp from 1972 through 1992..
The mine was closed between November, 1992, and October, 1993. The mine employs an
average of 114 miners and-has two production shifts and one maintenance shift per day.

1414

Under both Valley Camp and White Oak, operation ofthe mine has essentially been the
same. Mining is done on the "room and pillar" method using remote-control continuous-mining
machines to do 40 foo~ extended cut mining. The mining sequence is that the continuous miner
cuts coal at the face, the entry is roof bolted and then cleaned. Mining is performed in a 20 foot
coal seam, which means that both the roof and the floor, as well as the ribs, are coal.
Docket No. WEST 96-235
Prior to the hearing, the Secretary filed an agreement to settle Citation Nos. 3855479 and
3585746. The agreement provided for a 20 percent reduction in the penalties, from $1 ,660.00 to
$1 ,328.00, based on the operator' s ability to pay. The agreement stated: "This operator is
currently making monthly payments to MSHA to catch up on a debt that exceeds $200,000.00,
and further penalties will impair its ability to continue in business." The agreement was affirmed
by the parties at the hearing. (Tr. 645-46.) Based on the representations and documentation
submitted, 1 concluded that the settlement was appropriate under the criteria set forth in section
llO(i) of the Act, 30 U.S.C. § 820(i), and accepted the agreement. (Tr. 647.)
Citation No. 3855479
This citation was contested at the hearing. MSHA Inspector Lana J. Passarella testified
that she was performing quarterly, AAA inspection at the White Oak No.2 Mine on January 3,
1996, when she encountered an accumulation of loose coal at the feeder breaker in the 2nd East
working section. She explained that the feeder/breaker is where loaded shuttle cars unload the
coal that they have been filled with by the continuous miner and that it is located two crosscuts,
about 200 feet, from the working faces.
She described the accumulation as being 7 feet wide and extending up the entry in front
of the fee<;ler for 17 feet and along the crosscut to the right of the feeder for 19 feet. She said that
the average depth of the accumulation was about 12 inches, although in at least one place she
measured it as being 4 feet high. She further related that the coal was damp.
Inspector Passarella testified that, as a result of these observations, she issued Citation
No. 3855479. The citation alleges a violation of section 75.400,30 C.F.R. § 75.400, of the
Secretary' s regulations in that: "Accumulations ofloose coal was [sic) present on both sides of
the feeder breaker in 2nd East working section. They varied in depth up to 4 feet and in width up
to 7 feet. The accumulations were damp."'

1

Section 75.400 states: "Coal dus~ 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 worklngs, or on electric equipment therein."

1415

While the company does not dispute that there were accumulations at the feederlbrea.ker,
it does not agree that the accumulations were as extensive as claimed by the inspector. The
Underground Mine Manager, Mike Gipson, testified:
So at the time, yes, there was coal there. But now that coal was not
back, in my opinion, 17 feet or 19 feet. And it wasn't, you know, as
deep as she says in the citation. To my opinion, what happened- that
coal -- the direction of the coal was running east to west. When you go
to the left of that feeder, the coal seam goes up. When you go to the
right of[the] feeder, the seam goes down.
So what happens, it's real hard to-- when you make your cross. .
cuts to make them come up even like this table, you can't do th~t.
Sometimes the operator cuts it too high, too low, whatever. So iflh~y
cut the cross entry too high, then you cannot - you don't g~e the ·
floor up unit the roof bolter comes back in and roof bolts it. Then the
miner on the cycle will come grade the floor out to make it where
shuttle cars can travel.
Q. Okay. So in this particular situation, how would that particul~
coal have gotten there?

A. In my opinion, what happened in that, that floor bus~ed out then~:

Q. As a result of what? What would cause that?
A. From the grading of the floor prior to shuttle cars trav~ling back
across it.
(Tr. 707-08.)

I accept the inspector's opinion over that of the Mine Manager. l~or P~lhl
measured the accumulations; Gipson did not. Furthermore, Gipson's testimony cl~fy §OOw~
that there were extensive accumulations, even if they did not extend 17 feet up the ~nliy mt9
19 feet along the crosscut. Moreover, Gipson's explanation of the cause of the ~~~umil~ti~n~
does not provide any excuse for them. The feeder was lqcated at least tw9 eros~~ aw~y ffpm
the working entries. Consequently, it was not in an area which hadjl,ISt be~n ~e~, rQ9f~~~~@
and opened to sltuttle car traffic. Thus, if shuttle qp-s had broken up the floor, tll~Y ~ @.n~ ~9
several days prior to the inspection and the resulting accumulations should
h§v~ ~P
cleaned up. Finally, I find it significant that no one from the company challenged the ~i~~9Jl
when it was issued or at the close out conference.

alrea4y

1416

I conclude that there were accumulations at the feeder/breaker in the 2nc1 East working
section which vioiation section 75.400. Accordingly, I affirm Citation No. 3855449.
SiKnificant and Substantial
The inspector found this violation to be ..significant and substantial. • A "significant and
substantial (S&S) violation is described in Section 104(d)( 1) of the Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
Qline safety or health haiard. A violation is properly designated S&S "if, based upon the
partic\llar facts surrounding that violation, there exists a reasonable likelihood that the hazard
g;>ntributed to will result in an injury or illness of a reasonably serious nature." Cement Division.
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ).
II

11

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission explained:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of mandatory safety
standard; ... (2) a discrete safety hazard··that is, a measure of danger to
safety·-contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably_serious nature.
See also Buc~ Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (Tl' Cir. 1995); Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021
(December 1987)(approving Mathies criteria).

In .United States Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (August 1985), the
Commission stated further as follows:
We have explained further that the third element of the Mathies formula
'requires that the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury.' U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized
that, in accordance with the language of section 104(dX1), it is the
contribution of a violation to the cause and effect of a hazard that must be .
significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company, Inc., 6 FMSHRC
1573, 1574-75 (July 1984).
This evaluation is made in terms of"continued normal mining operations." U.S.
Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July.1984). The questionofwbether.a
particular violation is significant and substantial must be based on the particular facts

1417

surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny
& Ohio Coal Co., .9 FMSHRC 1007 (December 1987).
The inspector testified that she designated the violation as S&S because: "Loose
coal has more surface area than solid coal and it makes it easier to ignite. Also, where the
accumulations were located, they had - shuttle cars were returning over the loose coal,
which makes it even more finer [sic] and even more flanunable. And with the energized
cable there, I was worried about an arc, an electric arc." (Tr. 660.) She said that even
though the accumulations were damp, the dry, cool air in the mine during the winter dries
things out faster. In fact, she noted that most fires and explosions occur during the winter.
Inspector Passarella further testified that if a fire did break out, everyone inby the feeder
would be affected because the belt air was coming into the section.
On the other hand, the Respondent points out that the mine does not liberate
methane, that the mine has no history of ignitions or combustion events and that, as
admitted by the inspector, the accumulations were damp. White Oak further argues that
the Secretary did not offer any evidence that Ute trailing cables were defective or how they
would be an ignition source.
The Commission has provided the following guidance for determining whether an
accumulation violation is S&S:
When evaluating the reasonable likelihood of a fire, ignition, or explosion,
the Commission has examined whether a "confluence of factors" was
present based on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498,501 (April1988). Some of the factors include the
extent of accumulations, possible ignition sources, the presence of methane,
and the type of equipment in the area. Utah Power & Light Co.,
12 FMSHRC 965,970-71 (May 1990) ("UP&L j ; Texasgulf, 10 FMSHRC
at 500-03.

Enlow Fork Mining Co., 19 FMSHRC 5, 9 (January 1997).
An examination of the record reveals that there is nothing in it to show a
•confluence of factors" that would lead to an ignition. While the accumulations were
extensive, they were damp. Indeed, the evidence is that the coal contains 10 percent
moisture before it is mined. Furthermore, even if the coal were to dry out, none of the
other necessary factors were present. It is unrebutted that the mine did not have methane.
There is no evidence that the shuttle cars' trailing cables were defective or in any way
likely to become an ignition source. While the trailing cables were the only ignition
source mentioned at the hearing, I note that there was other equipment in the area

1418

including the feeder/breaker and conveyor belt.2 However, there is nothing in the record
to indicate that they were defective or of such physical condition that they could be
possible ignition sources. Finally, it is unrebutted that this mine does not have a history of
ignitions or combustion events.
Accordingly, I find that the Secretary has not established that there was a
reasonable likelihood that the accumulations would result in a miner being injured by fire
or explosion. That being the case, I conclude that the violation was not "significant and
substantial."

The inspector found that the Respondent was moderately negligent in permitting
the accumulations. She stated: "For the amount of accumulations there and the people
that were on the crew, including the boss, they should -- it was obvious they had to have
known, and yet they didn' t do nothing (sic] to correct that condition." (Tr. 669-70.)
The company argues that the following factors indicate that there was no
negligence on its part: (1) the accumulation could not have been there longer than
2 hours; (2) MSHA had not provided consistent guidance as to the size of an accumulation
which constitutes a violation; and, (3) the company had installed a three-way feeder to
address MSHA's accumulation concerns, had established a routine procedure and schedule
for cleaning the area and was following that procedure. I do not find these arguments
persuasive.
Other than the Respondent' s conjecture, there is no evidence that the accumulation
either resulted from an accident or had only been there for 2 hours. No evidence was
presented that the feeder/breaker area had been cleaned 2-hours prior to the discovery of
the accumulations. Nor was any evidence offered to show that an accident resulting in
spillage h!id occurred just prior to the inspector' s arrival. On the other h:and, as the
inspector testified, the size of the accumulation makes it highly unlikely that it had accrued
since the beginning of the shift.
White Oak argues that its negligence should be mitigated because MSHA would
not provide them with a specific size at which an accumulation became a violation.
However, the reason MSHA would not provide such a definition is that it could not.
Whether an accumulation is a violation depends on the specific circumstances surrounding
the accumulation. Furthennore, in this case the accumulation was so large that there
should have been no doubt that it was a violation.

2

The Secretary did not discuss this citation in her brief.

1419

Finally, it is commendable that the company was taking steps to address tile
accumulation problem in the mine. Nevertheless, the fact that they had a procedure for
cleaning the feeder/breaker area, does not relieve the Respondent of the responsibility for
cleaning up accumulations of this magnitude when they are discovered.
I find that this mine had a problem with accumulations that it was taking steps to
rectify. However, this accumulation was large and was located in a place frequented by
miners. It should have been obvious that waiting for it to be cleaned-up "on cycle" was
not appropriate. Therefore, I conclude that the violation resulted from White Oal<'s
•moderate" negligence.
Docket No. WEST 96-338

Factual Settine
Blue Samples was 20 years old when he was hired by White Oak in MC!f~h, 199~ .
as a mechanic. This was his first job in a coal mine. After receiving 32 of~s ~quired
40 hours of newly employed, inexperienced miner training at a local coll~ge, h~ report~g
to the mine for work on March 7. There he was given additional traini11.g Oil ~ne hazards,
the mine map and the use of the man trip by the shift maintenance forem~. Th~ forem~
had not been certified as a trainer by MSHA and his training did not satisfy th~ I'{S~aiffing
8 hour requirement.
·
-On March 14, Samples was assigned to work as a miner helper working with the
operator of a continuous-mining machine. He was task trained for tlti~ position by K~i~
Smith, another miner helper. This training lasted approximately 30 minutes. S~p!es ~sp
worked as a miner helper for at least part of his shift on March 21 , 22 and 23.
He wa5 again assigned to work as a miner helper on M~ch 24. While ~sisqng
Smith move the continuous miner from the No. 4 entry to the No. 5 entry, hew~ $11Ck j~
the bead by the miner's tail boom and killed. He had worked in the mine a to~ pf
15 shifts.
The accident investigation was beaded by MSHA Inspector Ted E. Farmer. ~~
investigation resulted in the issuance of two orders on April 4, 1995, for violations of
section 48.7 of the regulations, 30 C.-F .R. § 48.7. Order No. 3415830 alleges a viq!~t~~m
of section 48.7(c), 30 C.F.R. § 48.7(c) because:
The task training provided to Blue Samples for the position of
continuous-mining machine helper was inadequate. Samples, a newly
employed inexperienced miner, was fatally injured on March 2~~ 1995.
The individual who conducted the task training for Samples stated that
be was not aware of 30 CFR Part 48.7 task training requirements and

1420

did not use the approved training plan, dated November 25, 1994, to
insure that all subjects and course materials were taught. Training was
not provided to Samples as per the approved plan in the following task
training subjects and courses for miner helper: operation and
maintenance of special equipment used in extended cuts; MSHA
standards; company policy and programs; scaling; servicing the
continuous miner; changing miner bits.
Remote control operations of continuous miners create special
safety considerations with respect to tramming the machine. These are
welJ known and have been documented by the manufacturer. Such
safety operating procedures were not included in the task training for
Blue Samples.
In its service bulletin No. FG-176 dated 09/24/91 Joy
Manufacturing Company makes the folJowing statements: "The
concept of operating equipment by remote control provides increased
operator safety and comfort while achieving maximum productivity
from the machine. However, as with any piece of equipment this
increased safety aspect can only be realized if safe operating practices
are followed. Failure to follow the proper operating procedures could
result in serious injury or death. This bulletin provides some general
guidelines. Except wher~ noted the·se guidelines apply to all model
remotes."
Later in the bulletin Joy states: "One of the most siwificant
potential hsmmis is bein~ pinched between the machine and the rib.
Therefore. all persoMel must remain a safe-distance from the machlne"
(emphasis in bulletin).
This violation contributed to the fatal accident to Samples.
(Govt. Ex. 12.)
Order No. 3415831 alleges a violation of section 48.7(a), 30 C.F.R. § 48.7(a),3 because:

The order originally charged a violation of~tion 48.7(c), but was amended to allege a
violation ofsec!ion 48.7(a), over the objection of the Respondent, at the hearing. (Tr. 321-25.)
The Respondent has renewed its objection in its brief. The company argues that it has been
prejudiced by the amendment because ••changing the standard cited adds to the facts at issue in
the case. Because respondent was not on notice prior to the hearing that those facts would be in
3

1421

Keith
Smith, the continuous miner operator on the afternoon shift .
.
of 3/24/95 was not adequately task trained. His task training did not
include established and well known safe operating procedures necessary to
prevent serious injury or death to those persons associated with remote
control operation of the continuous miner. Remote control operations of
continuous miners create special safety consid~rations with respect to
tramming the machine. These are well known and documented by the
manufacturer. Such operating procedures were not included in the task
training.
(Govt. Ex. I I.) The order also contains the language from the Joy Service Bulletin found in the
previous order.
Fjndines of Fact and Conclusions of Law

The regulation alleged to have been violated in this case states, in pertinent part:
§ 48.7 Training of miners assigned to a task in which they have had
no previous experience; minimum course of instruction.

(a) Miners assigned to new work tasks as mobile equipment
operators, drilling machine operators, haulage and conveyor systems
operators, roof and ground control machine operators, and those in
blasting operations shall not perform new work tasks in these categories
until training prescribed in this paragraph and paragraph (b) of this section
has been completed. This training shall not be required for miners who
have been trained and demonstrated safe operating procedures for such
new work tasks within I 2 months preceding assignment. This training
shall also not be required for miners who have performed the new work
tasks and who have demonstrated safe operating procedures for such new
work tasks within I 2 mo~ths preceding assigrunent. The training program
shall include the following:

fn. 3 (continued)
issue, it was not able to thoroughly prepare to present evidence as to those facts" (Resp. Br., fn 3
at 31·32.) At the time the order was amended, the Secretary was still presenting her case. The
Respondent has not shown that the additional facts were so unusual or disconnected from the
facts necessary to prove a violation of section 48.7(c) that it was precluded from presenting
evidence on them at the hearing. Therefore, there was no prejudice and the objection is again
overruled.

1422

(I) Health and safety aspects and safe operating procedures for
work tasks, equipment, and machinery. The training shall include
instruction in the health and safety aspects and the safe operating
procedures related to the assigned tasks, and shall be given in an on-thejob environment; and
(2) (i) Supervised practice during non-production. The training
shall include supervised practice in the assigned tasks, and the·
performance of work duties at times or places where production is not the
primary objective; on4
(ii) Supervised operation during production. The training shall
include, while under the direct and immediate supervision and production
is in progress, operation of the machine or equipment and the performance
of work duties.

(b) Miners under paragraph (a) of this section shall not operate the

equipment or machine or engage in blasting operatio~ without direction
and immediate supervision until such miners have demonstrated safe
operating procedures for the equipment or machine or blasting operation to
the operator or the operator's agent.
(c) Miners assigned a new task not covered in paragraph (a) of this
section shall be instructed in the safety and health aspects and safe work
procedures of the task, prior to performing such task.
Order No. 3415830
The issue in deciding this violation is not whether Blue Samples was task trained, but
whether that task training was "adequate." "Adequate" is not defined in the regulations, nor is
there any case law as to what does, or does not, constitute adequate task training. However,
based on this record, I have no problem concluding that Samples was not adequately task trained.
I further have no problem concluding that the failure to adequately task train him "significantly
and substantially" contributed to his death and that the fai:lure to adequately task train him
resulted from White Oak's "unwarrantable failure" to comply with the regulations.
In cases where a regulation does nof provide sufficient notice of required conduct an
objective standard must be applied. BHP Minerals International Inc., 18 FMSHRC 1342, 1345

4

"On" .apparently should be "or." "Paragraph (a)(2)(i) of§ 48.7 appearing on page 47463
is corrected in the seventh line of the paragraph by deleting the word 'of'' immediately after the
semicolon and replacing it with the word 'or.' 44 Fed. Reg. 1980 (1979). Evidently, one "typo"
was substituted for another.

1423

(August 1996). Section 48.7 is the Secretary's implementation of section 115(a)(4) of the Act,
30 U.S.C. § 825(e)(4).s Its purpose is "to insure that miners will be effectively trained in matters
affecting their health and safety, with the ultimate goal of reducing the frequency and severity of
injuries in mines." Secretary ofLabor v. Western Fuels-Utah, Inc., 900 F.2d 318,320 (D.C. Cir.
1990) (citation omitted). Consequently, whether Samples' training was "adequate" depends on
•what a reasonably prudent person, familiar with the mining industry and the protective purpose
of the standard, would have provided in order to meet the protection intended by the standard."
Quinland Coals, Inc., 9 FMSHRC 1614, 1618 (September 1987) (citations Qmittec;l).
Keith Smith testified that he task trained Samples as a miner helper for "at }efist
30 minutes or maybe a little longer." (Tr. 49.) He described the training as follows:
Me and him walked up to the miner and I discussed with him abollt
getting up around the head with the bits on and being up at the head of l)le
miner and being back by the boom. I told him to stand with the operator
because he has a lot of experience. If he stands at the spot with the
operator, he's not going to get in one of them pinch points.
And I told him to look out for nicks or holes in the cable, that if
there's any nicks or holes in the cable, tell the operator and then we' ll get a
mechanic up there... .
I showed him how to move the cable out of the road when the
miner' s backing up, and I told him if the cable was down by the tracks npt
to reach down and grab it if he' s moving the miner because I told him yo~
can get your hand caught or pinched. And I said if the cable loops do~
behind the miner as the shuttle car' s coming in, I said to wave to the
operator so he'll stop and then grab the cable. Don'tjust reach in and grab

it.
And I showed him the scrubber, I showed him how to hang the
ventilation rag, to check its curtain on down the line, to make sure that the
travel pads were up.

s Section 115(a) directs the Secretary to "promulgate regulations with respect to : : :
health and safety training programs ... ." It sets out the minimum requirements for ~g.
Section 115(a){}') concerns task training and states, "any miner who is reassigned to a ne)V la.-* in
which he has had no previous work experience shall receive training in accordance wi~ ~
training plan approved by the Secretary under this subsection in the safety and health ~c~
specific to that task prior to performing that task."
·

1424

You got to have enough air in there to mine. And i believe I told
him how much air that we needed to mine with the scrubber.

And I showed him how to use the spad gun.

And I showed him where the scaling bar was on the miner, showed

him [hQw to] scale down the rib, told him to check the ribs and the
overhang. And I told him that when they're through cutting·· well, I
showed him how to put -- well, I left -- you have the lid and the bits, and I
showed him where that was so that when he went to put the C\lt rope on
the miner head, showed him how to do that so that when they back up -'P}d we put ropes about every 40 to 60 feet on our cables, and I showed
hirn how to loop them on the head.
A.nd I told him that when we leave-- as the miner's leaving, before
w~ do those ~ings to make sure that he puts a reflector in the face. Or not
at the f~c~, but ~t the s~cond to last row of bolts.

And I told 11.im not to ever go out past the last pin under any
cir~umstances. And I told him to be --just really be careful because that

miner -- when you ~o to. split the tracks it swings really fast.
And U"ten we walked back down to the transformer and I showed
him -- kind of drew a picture of entries with my finger on the rock dust out
on the transformer. And showed him the way to --plus I showed him
visually, you know walked him down.

Showing him where to put the curtains and how they was supposed ·
to be exactly to get the air up to·the face.

And me and him walked down there, like I said, and I was showing
him with my finger in the transformer. And I asked him how he felt about
it and be said he thought it was okay. And I says, well, we got to fill out

1425

the task ~ning report. And I asked him- I says, if there's anything you
don' t understand let me know now, and we'll go back up and go over it.
And I said, make sure because I don' t want you to go up there and feel
uncomfortable about being up around the miner. And he said no, so we
filled it out. We walked back up there and then I went and done the things
I needed to do.

And through his shift, as I was going by the miner and moving it
and stuff, I watched him and --

I discussed with him the same things that were discussed with me
through the years.

Done it the same way it was done to me.
(Tr. 100-105.) This description was considerably more detailed than what he told the inspector,
shortly after the accident, about the training. (Resp. Ex. B.)
Smith added the following in response to further questions from the company's lawyer:
Q. Now let me ask you, if there was going to be one thing that you were
going to focus on in the training of a mine helper, what would that be?
A. Well, actually there's two.

Q. Okay. Well, what would the two most important things be?
A. Well, the fli"St important thing is to stay clear of the miner and let the
operator know what you're going to do. And I make that pretty clear with
everybody that I ever worked with because it's a piece of machinery and
things can happen to people. They need to be watching carefully and
letting other people know what they' re doing.

Q. Okay. And what's the second thing?
A. The second thing is the ventilation.

1426

Q. Now did you discuss those things with Mr. Sample·s?

A. Yes.
Q. Okay. Did you explain to him-- did you describe for Mr. Samples
how the continuous miner worked?

A. Yes.
Q. You explained to him that it was a track vehicle?
A. Yes. I explained to him that it was a track vehicle and that when you

run the remote, that when you -- it has two little -- well, I call them knobs,
but they're little sticks that stick up like that and have a little round top on
them. When you take your fingers and go like this and push one lever to
the left back towards you and push the other one forward, it will swing the
miner to the left.
Q. Okay.

A. And if you reverse it, it swings to the right. And it moves so fast, it
really moves so fast that you really got to watch what you're doing
working around that. And I explained that.
(Tr. 105-07.)

Smith was not aware that the company had an approved training plan for task training.
(Govt. Ex. 8.) ~erefore, he did not know that the miner helper was supposed to be trained in
changing miner bits, hanging ventilation curtains, the operation and maintenance of special
equipment used in extended-cut mining, servicing the continuous miner and scaling. (/d. at 5.)
Nor did he know that his training methods were supposed to include demonstration, lecture and
discussion and that his course materials were supposed to include the machine, MSHA standards,
company policy and programs and safeguards required when using extended-cut mining. (/d.)
Finally, he did not know that the task training was not concluded until he bad observed Samples
demonstrating safe work practices. (/d.)
Smith was also not aware of the Joy Service Bulletin which prescribed safety guidelines
for operation of the specific machine on which Samples was being task trained as a miner helper.
(Govt. Ex. 3.) While no regulation requires that it be included in the training materials or that it
actually be sho~ to the miner being trained, common sense $Uggests that it would be an
excellent training device and that at a minimum its guidelines be encompassed in the plan's
subject matter to be covered and in the company policy and programs.

1427

The task training regulation does not set out a prescribed minimum amount of time that
task training must take. Neither does White Oak's training plan. The reasons for this is that the
length of time required to give the training depends on the experience and knowledge of the
person being trained. Obviously, it will take more time to train someone who is new to the mine
environment, has not been around the machine while it is operating, and is not familiar with what
goes on at the face in producing coal, than it is someone who is an experienced Dliner. There is
no doubt in this case that Smith knew he was dealing with a newly employed, inexperienced

miner.6
It is evident from Smith' s testimony, even as expanded at the hearing, that he did not
cover everything in the company's training plan or the Joy Service Bulletin, that there was very
little, if any, demonstration by Smith, that the machine was the only course materi~l US(fd, iPld.
that he did not observe Samples performing his job safely before signing off on the Certificate ()f
Training that training had been completed and having Samples sign off that h~ had been tnlined.
Further, it is doubtful that Smith co~ld have covered everything he claims to have covered in
30 minutes. Clearly, he could not have covered everything required in the trainin~ pl~ in
30 minutes.
In conclusion, I find the fact that Blue Samples was a newly employed, inexperienced
miner, having only been a miner for 11 shifts when he was task trained, tha~ the training only
lasted for 30 minutes, and that Smith was not aware of, and thus did not use, the cpmpany'~ ·
training plan or the Joy Service Bulletin when training him, all demonstrate that Blue Sampl~§
was not adequately task trained. I agree with MSHA Electrical and Education and Train.hig
Supervisor for District 9 Donald Gibson when he stated that "just going down the~e items [in th~
training plan] it's going to take more than and longer than a half hour to teach an in(f~~rienceq
miner new to the mining environment what he needs to know. One, to protect him~elf, twP, tQ
protect his coworker." (Tr. 380.) A reasonably prudent person familiar with the health ~ct
safety purpose of the task training requirement would have provided Blue Sampl~s with ~pore
training than he was given in this case. Accordingly, I conclude that White Oak yipI~~~ ~etioq
48.7(c) by not adequately task training Blue Samples as a miner helper.
Sianificant and Substantial

It is not clear exactly how this accident occurred. Alvero Zarate testified that: "We put
the cable in the boom and Mr. Smith said the miner was going to move on, so I told Blue
Samples to move out of the way because the miner was moving on. And I moved arm,mp ID~
comer [into the entry] and the miner moved a couple feet, and that's when Blue got hit.!! (T!!
26.) He stated that he saw Samples get hit with the boom, ~e mine[r] swung to the right ~d hit
him against the rib," although "I didn' t see the injury, but I guess he got ~t in the hea4;" (!~.)

6

Ironically, in filling out the Certificate of Training, Smith checked "Newly Employed,
Inexperienced Miner" rather than "New Task" for the type of training being given.

1428

However, he further testified that when he told Samples that ~~ miner was going to move and he
moved he thought Samples was clear of the boom •[b]ecause he was far from the boom. He
wasn't too close to the boom" and that "I told Keith that everything was clear.• (Tr..32.) Finally,
he testified that he does not know whether Samples moved after be told him that the miner was
soing to move because "I turned around and-- I didn't see him move." (Tr. 36.)
The only other witness to the accident, who testified, was Smith. He said: •wen, we
unloaded the cable that me and Blue put on the miner head, and then hooked on our cut rope, our
sla~k rope, and l told them that I was going to move the miner. And I walked up [to the front of
lhe JDiner near the cutting drums, on the entry side of the miner] and put the remote box on. I
ltX.>k~ b~~k. I seen them ~tanding in the clear, and then I went ahead and started tramming the
miner." (Tr, 65.) He later testified:

1walked from where we was hooking the ropes along ·the boom and
alongside the miner and reached over on the miner and picked up the
r~m9te box anq hook~d it on, and looked back to see where them guys
were and let them know that I was going ahead and move.
Q. Could yo14 see th.em at that point?

A. Ye~,

Q. Was lfl~re anything ob~tructing your view?
A, No.

Q. Now, when y9u moved forward, did you think that Blue was clear of

the boorrt?
A. Yes.

Q. Okay. Where did you think f3ll.4e was?

A. Where I had left him at the -- about four feet right at the end of the
boom.
(Tr. 120.)
Finally, in response to my questions Smith stated:
Q. Where were you looking when you started operating the miner?

1429

A· Whe~ I Started operati~g the miner -- when I turned it o~ I looked
back. And then when I went to pull forward, I turned_forward.

Q. How did you learn about the accident?
A. Alvero was waving his light at me, so I stopped the miner and I looked
down the entry because I thought the cable was being pulled too tight.
And then I looked down along the rib and I seen Blue laying [sic] on the
ground.

Q. Okay. Where he was laying [sic], was that where he had been standing
when you looked down there?

A. No.

Q. Where had he been standing in relation to where he was laying [sic]?
A. At the end, back behind the boom.

Q. Was he against the rib?
A. No.

Q. He was out in the middle of the ... cross-cut?

A. Well, here' s the boom of the miner, and him and AI were standing
right here.

Q. So in relation to the miner, they were standing behind the miner about
in the middle of it?

A. Yeah.
Q. Both of them?

A. Yes.
Q. When you started operating?
·.. A. When I, yeah, hooked the remote box up, yes.

1430

Q. Where was Zarate when he got your attention?
A. He was standing on the opposite side of the miner at the boom. Here's
the boom. He was standing right here.

Q. Okay. Look at the sketch, [Govt. Ex.] No. 10, the last one. Do you
see where it says AJvero Zarate? Is that where he was standing?
A. No.
Q. \\'here was he standing?

A. He was standing over on the opposite side of the miner back by the
boom, straight across from where Blue was.
(Tr. 133-35.)
While the testimony of these witnesses is somewhat inconsistent and contradictory, two
facts seem clear: ( 1) Both Zarate and Smith thought that Samples was in a safe position when
Smith got ready to move the miner; and, (2) Samples must have moved after the two witnesses
directed their attention forward. Obviously, we wiJl never know why Samples moved. However,
it is clear from the facts of this case that he had not had sufficient training to know just how
dangerous a tramming miner and its free swinging boom could be.
Therefore, I find that the failure to adequately task train Blue Samples contributed to a
discrete safety hazard, not knowing how to handle himself safely in the mine environment, and
that there is a reasonable likelihood that this hazar.d resulted in the event which led to his death,
unquestionably an injury of a reasonably serious nature. Accordingly, I conclude that the
violation was "significant and substantial."
Unwarrantable failure
The inspector considered that this violation resulted from the company's "unwarrantable
failure" to comply with the regulation. The Commission has held that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence by a mine operator in relation to a
violation of the Act. Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007,2010 (December 1987). ..Unwarrantable
failure is characterized by such conduct as 'reckless disregard,' 'intentional misconduct,'
4
indifference' or a 'serious lack of reasonable care.' [Emery) at 2003-04; Rochester & Pittsbur.~h
Coal Corp. 13 f'MSHRC 189, 193-94 (February 1991)." Wyoming Fuel Co., 16 FMSHRC 16i8,
1627 (August 1994).

1431

Inspector.Ted Farmer testified concerning this issue that "I feel that it is really
inexcusable to allow a newly employed, inexperienced miner to go underground and perform the
types of duties that he was performing without the proper and adequate task training. And that's
wby I wrote it unwarrantable." (Tr. 222.) I do too.
Blue Samples received 32 hours of classroom training as a new min~. He was supposed
to receive eight additional hours at the mine. The subjects to be covered were; (l) lntr()duction
to Work Environment; (2) Health and Safety Aspects of Tasks Assigned; and (3) Authority and
Responsibility of Supervisors and Miners' Representative. At best he was giv~n an introd-uction
to the mine environment. The Certificate of Training indicates he was shown the mine rnap, the
mine plan and shown how to use a man trip. This training was provided by William Potter, wh~
also took Samples into the mine. Although section 48.3(g), 30 C.F.R, § 4S.l(g), req\lires that
this training be conducted by MSHA approved instructors, Potter was not ~ approv~
instructor.7 Potter knew that he was not approved and the company lcn~w, Qr ~h,;ndd ~v~ known,
it.
There is no evidence that Samples had completed task training as a meahanic, or, indee(! 1
that he had been given any task training at all in this area. As has already ~ep ~en, hi~ ta$lc
training as a miner helper was woefully inadequate.
The blame for these deficiencies cannot all, or even mostly, be pla~d QJl Smjf.h. l }@.y~
no doubt that he gave Samples the same type of training that he had receiyeq. 'fm§ i~ not his
fault, but the fault of the company. White Oak has a training plan, but Smith dig nol ~ow a.b~n~t
it. It would seem logical that when assigning a miner to task train anglb~r I'Qin~f. es~ei~ly a
new miner, one would make sure that the trainer was aware of, and U§~d. the ~ning IJJ~. ·
Furthermore, I note that the company's training plan, although it has been apprgve4.·by M~:H!\1
does not mention that training is to be given in the "health and safety ~~e~ ·apcf ¢.e'g~rntin~
procedures• for work tasks.
Finally, evidence was presented at the hearing that an inspection beglJll ~ ~result ~f tm§
accident turned up as many as 13 additional training viqlations. Even. if not all pf lhe viol~~l9P.§
were in fact violations, this is indicative of the company's attitude toward ~ainjpg.
All of this demonstrates an indifference at the White Oak No. 2 mine to training=
Consequently, I conclude that the negligence involved in this violation·was "~gh" ~4·th~t ~~
violation resulted from the company's "unwarrantable failure" to adequately ~ !}hJ~ ~ampl~s.

Subsequent to this incident, Potter requested approval from MSHA as a train~r ~q it
was given, apparently based on his resume.
7

14;32

Order No. 3415831

It is easy to decide how things should have been handled after the fact, and it is natural to
want to place blame when someone is killed in a mining accident. It does not follow, however,
that because an accident occurred which may have been contributed to by a miner's unsafe act,
that the miner was not adequately trained.8 I find that in the instance of this order the blame has
been misplaced. I find that Keith Smith was adequately task trained as a miner operator.
It is undisputed that the task training of Smith lasted only between 15 and 30 minutes and
that it did not cover everything contained in the company's task training plan or the Joy Service
Bulletin. If Smith were a new miner, had never been a miner helper or had never operated a
continuous miner before, this would clearly be inadequate. But that is not the case.
Except for the time between November 1992, when Valley Camp closed the mine, and
October 1993, when White Oak reopened, Smith had worked in this mine since June 2, 1975.
With Valley Camp he had been a laborer, block build operator, shuttle car operator, wagoner
operator, beltman, miner helper, miner operator and had worked on the surface on "Cats" pushing
the coal pile.
Remote control miners were first used in the mine in 1987 or 1988. They were the same
~ontinuous miners, including the same remote control box, that were being used when Smith was
1aSk traine~ in January 1994. Smith was a miner helper and miner operator on these remote
control miners when the mine closed in 1992.
Needless to say, Smith was an experienced miner and miner operator when hired by
White Oak. He was hired by White Oak as a miner helper and was assigned to work with Shane
Hansen. He worked with Hansen for three months before Hansen task trained him as a miner
operator. In addition, Hansen had also worked for Valley Camp up until the mine closed and
w~ familiar with Smith's work. Thus, Hansen was fully aware of what Smith could and could
not do and what he already knew when he trained him.
The only reason that Smith had to be task trained at all was that he had not operated a
continuous miner within the 12 months preceding the assignment. He had, however, operated a
continuous miner within the 15 months preceding the assignment. Obviously, this 3 month
difference is not enough to require that the miner be given task training as if he had never seen a
remote control continuous miner.

1

The Secretary's theory of the case is that Smith operated the miner with the machine's
lights in his eyes and, therefore, he could not see Samples. This theory is based on MSHA's
recreation of the incident, in which the person playing the part of Smith said that the lights were
in his eyes. No one ever asked Smith, either during the investigation or at the hearing, whether
the lights were in his eyes. He testified that his view was not obstructed. (Supra at 16.)

1433

In conclusi.on, I find that a reasonably prudent person would conclude that Smith had
been adequately trained as a continuous miner operator. To the extent that Donald Gibson's
testimony may conflict with this conclusion, it is rejected as not being based on all of the factors
cited above and because it is contrary to reasonableness and common sense. Accordingly, I
conclude that White Oak did not violate section 48.7(a) with regard to the task training of Keith
Smith.

Civil Penalty Assessment
The Secretary has proposed a penalty of $1 ,019.00 for the accumulation violation and a
$25,000.00 penalty for the failure to adequately task train Blue Samples. However, it is the
judge's independent responsibility to determine the appropriate amount of penalty in accordance
with the six penalty criteria set out in section 11 O(i) of the Act. Sellersburg Stone Co. v.
FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481 ,
483-84 (April 1996).
The parties have stipulated that White Oak produced 1,068,646 tons of coal in 1996.
(Tr. 7.) With respect to the remaining criteria, since no evidence was presented that the company
did not demonstrate good faith in attempting to achieve rapid compliance after notification of the
violations, I find that White Oak did demonstrate good faith in this area. The company's history
of violations indicates an immoderate number of prior violations. (Govt. Ex. 1; Resp. Ex. A.) In
fact, the Proposed Assessment form indicates that there were 2.44 violations per inspection day
in the 2-years preceding the instant violations. (Resp. Ex. D.) According to section 100.3(c),
30 C.F .R. § 100.3(c), anything over 2.1 authorizes the maximum number of penalty points for
history of prior violations. Theref~re, I find that the Respondent's history of prior violations is

poor.
Since the training violation resulted in a fatality it is obvious that the gravity of the
violation is extremely serious, and I so find. On the other hand, having concluded that the
accumulation violation was not S&S, I find that the gravity of that violation is not serious. I
have already found that the company was moderately negligent with respect to the accumulation
and was highly negligent in failing to adequately task train Samples.
The respondent presented some evidence and testimony with regard to its ability to
remain in business. While the evidence presented was not of the type found by the Commission
to be sufficient to support such a claim, see, e.g., Brolcen Hill Mining Co., 19 FMSHRC 673,
677 (April 1997) (and cases cited therein), it appears that the Secretary has conceded this issue
by agreeing to reduce the penalty for two citations in Docket No. WEST 96-235 by 20 percent

1434

based on the comp~y's ability to pay. Therefore, I will also reduce the penalties I impose by
20 percent.9
In Docket No. WEST 96-235, I conclude that an appropriate penalty for the accumulation
violation, Citation No. 3855449, is $690.00. Reducing that by 20 percent, I assess a penalty of
$552.00. In accordance with the settlement agreement, I assess penalties of $1,038.00 for
Citation No. 3855479, and $290.00 for Citation No. 3585746.
Turning to Docket No. WEST 96-338, the only factor that prevents imposing the
maximum penalty for this violation is that the level of negligence did not amount to "reckless
disregard." Therefore, taking everything into consideration, I find that a penalty of $40,000.00 is
appropriate. Reducing that by 20 percent, I assess a penalty of $32,000.00 for Order
No. 3415830.
ORDER
Accordingly, Citation Nos. 3855479 and 3585746 are AFFIRMED, and Citation No.
3855449 is modified by deleting the "significant and substantial" designation and is AFFIRMED
as modified in Docket No. WEST 96-235; and, Order No. 3415830 is AFFIRMED and Order
No. 3415831 is VACATED in Docket No. WEST 96-338. White Oak Mining and Construction
Company is ORDERED TO PAY civil penalties of $33,880.00 within 30 days of the date of
this decision. On receipt of payment, these cases are DISMISSED.

\I.M~
T. Todd H o ; - r Administrative Law Judge

9

White Oak requested in its brief that the record be kept open for an additional 60 days to
that it could submit a "certified audit" of the company's financial situation. A Notice of Hearing
was first issued in this case on December I9, 1996. It scheduled a hearing for February 19, 1997.
That hearing was continued at the last minute and rescheduled for April. Thus, the Respondent
has had seven months to obtain such evidence. I see no reason to wait longer. Furthermore, I am
reducing the penalties based on ability to pay. Accordingly, the request is DENIED.

1435

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716 (Certified Mail)

Mr. Richard L. Bury, Conference and Litigation Representative, Mine Sat~ and Health
Administration, 215 East Main Street, Price, UT 84S01 (Certified MaJl)
William K. Doran, Esq., Heenan, AJthen & Roles, J J 10 Vennont Avenue, N.W., Suite 400,
Washington, D.C. 20005-3593 (Certified Mail)

/fb

1436

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR .
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 1 4 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
APMINIS.TRATlON (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-1223
A. C. No. 15-15592-03592 M

v.

DEWEY Hl.JBJ3ARD, employed by

No.1 Mine

ALPHA MINING COMPANY,
Respondent

SECRETARY OF LABOR,
MlNP SAfETY AND HEA.LTH
AOMINl$TR.ATION CMSl-JA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-1224
A. C. No. 15-15592-03593 M

v.
RQ~ERT HARDIN, employed by

No.1 Mine

ALPHA MINING COMPANY,
Respond~nt

pEs;ISJON ON REMAND
Appearances:

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Arlington, Virginia, on behalf of the Petitiol)er;
Bill Hayes, Esq., Middlesboro, Kentucky, on behalf of the Respondents.

Before:

Judge Melick

These cases are before me upon remand by the Commission on May 12, 1997. The
parties subsequently settled the case with an agreement which reads as follows:

1. On May 19, 1994, Stanley Sampsel, a duly authorized representative of
the Secretary of Labor, issued Citation No. 4038467 to the Alpha Mining
Company pursuant to Section 104(d)(1) of the Mine Safety and Health Act of
1977 (hereinafter "The Act). He had found a full pack and an empty pack of
cigarettes in possession of the mine foreman, Dewey Hubbard, found a working
cigarette lighter and a cigarette butt on the mine floor and found a cigarette butt
and an empty pack of cigarettes around the work station of Robert Hardin. Alpha
Mining Company was assessed a proposed penalty in the amount of $10,000. The
petitioner also issued one citation each, to two individuals - Robert Lee Hardin

1437

~d Dewey Hubbard - who are employees of Alpha Mining Company (Citation

Nos. 4039257 and 4039258). These citations :where issued pursuant to Section
11 O(g) of the Act because the inspector determined that the two individuals
willfully violated the provisions of the Act and regulations which prohibit
smoking and the carriage of smoking materials. The Secretary proposed penalties
in the amount of$500.00 per person. The mine operator and the two employees
requested hearings regarding the proposed civil money penalties. The abovecaptioned civil penalty proceedings initiated on September 1, 1994 and were
consolidated for trial. On November 22, 1994, a trial was held in Gate City,
Virginia.
On May 23, 1995 the Court found that the Alpha Mining Company had
violated the Act and regulations and assessed a penalty in the amount of $10,000.
With regard to Mr. Hubbard, the court found that he willfully carried a full pack
of cigarettes in his lunch bucket and imposed a penalty in the amount of$250.00.
The Court concluded that Hubbard 's possession of an empty package of cigarettes
did not constitute a violation of 30 C.F.R. § 75.1702. With regard to Mr. Hardin,
the Court concluded that his alleged possession of a cigarette butt did not
constitute the carriage of "smoking materials" in violation of 30 C.F.R. § 75.1702.
The Secretary appealed these holdings.
On May 12, 1997 The Commission remanded these cases following a
decision granting the Secretary's Petition for Discretionary Review. On review
the Commission ruled that cigarette butts and cigarette packs that were empty
when found constitute "smoking materials." Accordingly, the carriage ofthese
items was found to have violated§ 317 (c) of the Act. The Commission reserved
for decision the issue of whether the citations properly alleged that the miners
smoked as well as carried smoking materials underground. In addition, the
Commission did not resolve whether the possession of multiple smoking
materials constitute separate instances of violations of§ 317 (c) and C.F.R. §
75.] 702.
2. Rather than continue the litigation of these matters, the respondents and
the Secretary of Labor have agreed to settle this matter. In particular, the
respondents have both agreed in writing to comply with the smoking prohibitions
of the regulation should they ever resume employment in the mining industry.
(Attachments omitted] Respondent's counsel has represented that neither Mr.
Hardin [n]or Mr. Hubbard is currently employed in the mining industry.
,
3. With regard to Mr. Hubbard, the Secretary has reviewed information
and representation[s] of respondent's counsel that Hubbard is, and has been for
approximately one year, unemployed, and that he has not worked in the mining
industry since Alpha Mining operations ceased. He has also already paid a
penalty in the amount of$3500.00 with regard to a separate§ llO(c) action

1438

arising out of this inspection. Accordingly, the Secretary agrees that the prior
penalty of $250.00 (issued pursuant to § 11 O(g)) is suitable for both violations and
waives any additional penalty for the act of possessing the empty pack of
cigarettes in addition to the act of possessing a full pack of cigarettes.
4. With regard to Mr. Hardin, the Secretary has agreed to reduce the
penalty proposal from $500.00 to $50.00 ($25.00 per violation) because Mr.
Hardin is no longer in the mining industry, because he is now working in
employment which is compensated at or near the minimum wage, and because the
possession of an empty pack of cigarettes and a cigarette butt provide relatively
little risk of additional injury to miners.
5. The Secretary believes that the proposed settlement is appropriate and
reflects due consideration for the penalty criteria including gravity, negligence
and the miners' ability to meet their financial obligations.
While the undersigned respectfully disagrees that empty cigarette packages and
unsmokeable cigarette butts constitute "smoking materials" within the meaning of Section 317(c)
of the Act and 30 C.F.R. § 75.1702, the Commission has ruled otherwise. Based on the
Commission's decision that the carrying of such materials may be a violation of those provisions,
the proposed settlement can be approved. See Co-Op Minini Company, 2 FMSHRC 3471
(December 1980).
OBDER ·

Dewey Hubbard is ordered to pay a civil penalty of $250.00, if he has not already done
so, for the violations charged in Docket No. KENT 94-1223 within 30 days of this order:· Robert
Hardin is ordered to pay a civil penalty of$50.00, if he has not already done so, for the violations
charged in Docket No. KENT 94-1224 within 30 days of this order.

Distribution:
Mark Malecki, Esq., Office of the Solicitor, U.S. Dept. of Labor, 4015 Wilson Blvd., Suite 400,
Arlington, VA 22203 (Certified Mail)
Bill Hayes, Esq., P.O. Box 817, 2309 Cumberland Ave., Middlesboro, KY 40965
(Certified Mail)
\mea

1439

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE. 1Oth FLOOR·
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 1 5 1997
ClVJL PENALTY PROCEEPINGS

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

Docket No. YORK 96,67~M
A. c. No, JQ,.OU4$..Q~~J2

v.

OQck.et No, YORK 96,69~M
A. C, No. 30.,0l54~"0S5J3

F. PALUMBO SAND & GRAVEL,
Respondent

Dover Pit
DECISION
Appearances: John G. Campbell, Esq., James A. Mage@~im~r. E§q, Offi~f ofth~ SoH~it(lr,
U.S. Department of Labor, New York, N~w York, fpr th~ ~@@f@WY~
Fortunato Palumbo, ProSe, f. PaulwnbP. ~and ~4 Gr~v~ll tlflv~r Pl~s.
New York.
Before:

Judge Barbour

In these civil penalty cases, the Secretary of Labor (S~cr~JNY), ~n b@h~f9fMf M!nt~
Safety and Health Administratjon {MSHA), ~~~~~ th~ ~§es§m~nt ~f ~jvjl ~m~Jtit'§ ~~a.in~l
F. Palumbo Sand & Gravel (the compfPly), for numerous all~ged viQla~ion.s gfth~ m~m~~~QfY
safety standards for surface metal and nP.nmetal mjn~s. (Th~ stap~~§ M~ fgund at JO ~:f:i~.
Part 56.) The Secretary alleges the viP.lations 09emred at th~ ~olllp'Wy'& Pov~r Fit Jg~~~ in
Duchess County, New York, and that several of the violatioQS wer~ sigrnfi~aqt ~<l §"P~ttP1ti~l
contributions to mine safety hazards (S&S violations). The alle~ed v~9latiop~ W~t' ~it~P ~;m
AprillO, 17-19, 1996.
The company raises a general defe0$e te> Uie vc»iclity pf the JO$pecliftll§ ~~! f~§y}t~§ in ID~
citations and specific defenses to th~ particular i~Jle~eg violation~~ Th~ ~~~ w~r~ b~g in
Poughkeepsie, New York.

THE NAIUJU: OF mE fACILITY
John Paterson, an MSHA ins~ctor, ~d fo~to Palumbo, an owner of~~ C<?tnPWtY.
described the facility as a sand and ~vel t:xtnletjon and processing opera~j~n:
th~ pi~· stone
is extracted and processed, On.~e ex:tnlct~d, Uu~ §lOJl~ i~ put into a hopper, J:lM~Q ilarn the

At

1440

hopper into a vibrating feeder, and passed from the feeder onto a vibrating screen. Stone smaller
than ~ inch and a half in size is dropped onto a main conveyor ·belt . Larger material is passed
through a jaw crusher where it is reduced in size and dropped onto the same belt. Once on the
main conveyor belt, the crushed stone is carried to a screen tower where three vibrating screens
separate the stone. Larger stone is carried on a transfer conveyor to a cone crumer where it is
reduced to a smaller size. It then is transported by conveyor belt to a stock pile (Tr. 44-45, 58).
Also, sand is processed at the facility (k!.).
MOTION TO DISMISS

At the ~Oilll1lencement of the proceedings, Carmine Palumbo, co-owner of the company,
moved in effect to vacate the citations and to dismiss the proceedings. He explained that MSHA
improperly ln~pected the pit and issued the citations before the facility was ready to operate.
Ac~ording to Palumbo, MSHA instructed the company to advise it by telephone when it was
goip~ fo commence operations in the spring. Previously, inspectors had not come to the mine
until the agency was notified. However, in April 1996, MSHA did not wait for a telephone call.
Rather~ MSHA's inspectors arrived unannounced. In Carmine Palumbo's view, their visit was
premature. He maintained that the inspectors "shouldn't have been there until (the facility] was
offi~ially opeq for business" (Tr. 22).
fcrtun~to Palumbo ~:)(plained that due to weather conditions the pit closed for the winter
~q ~at it was ~ustomary for the company to make repairs and to do needed maintenance prior to
staring operations in the spring. Normally, this work was done in March. However, the winter
of 1995-1996 was a long one, with heavy snow in March and snow and rain in April. Therefore,
when the inspectors arrived, the company was still in the process of repairing equipment and
~ptacing needed ~omponents (Tr. 51-53).

Fortunato Palumbo expressed the comp~y's objection to the April inspections:
We . .. feel like the man that's got a car in a repair shop with brakes being
replaced and a policeman coming in and giving you a citation for bad brakes. It is
not something that we consider to have been fair or equitable (Tr. 53).
Counsel for the Secretary responded that the Mine Act prohibits prior notice of
inspections and that MSHA inspectors acted within the law when they conducted the inspections
in question (Tr. 21).
I took the arguments under advisement (Tr. 23). After considering all of the testimony,
and for the reasons that follow, I conclude the facility was operating when MSHA's inspectors
arrived at the mine and that the April inspections were proper.

1441

Patterson was the first inspector to visit the pit in April. His testimony regarding what he
was told at the mine and what he saw during his inspections was credible and is decisive. He
stated that Carmine Palumbo told him "he would rather [Patterson] left and came back another
time," that the facility "had been operation for only a week or two and they hadn't had a
chance .. . to get things done.they wanted to do" (Tr. 43). Moreover~ \Vhffe at the pit Patterson
observed the front end loader operating, as well as the jaw crusher and the vibrating screens. In
addition, the conveyor belts were running and stone was being conveyed to the stock piles
(Tr. 44).
The Palumbo's argued the pit was in a "shakedown" period, and I do not doubt it. It is
logical that the first few days after the pit reopened for the season, the company would check and
repair equipment. However, it is also true equipment at the facility was operating, and even if
very fe•.v miners were as yet working at the pit, those present were entitled to the protection of
the Act and the regulations promulgated pursuant to the Act. MSHA' s inspectors had every right
to arrive unannounced at the pit and, based·upon what they saw, to inspect the facility(~
30 U.S.C. § 813(a)).
CONTESTED CITATIONS
YORK 96-67-M

Citation
4285641

4/8/96

56 C.F.R. §

Proposed Penalty

12025

$81

The citation states:
The 3 phase power circuit of[the] 5 horsepower, 230/460 volt Teco motor
that powers the cone crusher hydraulic pump was not grounded.
In additional to alleging a violation of the standard, the citation contains an S&S finding.
Section 56.12025 requires in part that "All metal enclosing or encasing electrical circuits
shall be grounded or provided with equivalent protection."
Patterson described the motor that provided power for the cone crusher' s pump as
cylindrical in shape and 10 to 12 inches in diameter. The motor was encased in metal and
mounted on a metal platform (Tr. 68-69). Electricity entered the motor through a junction box.
(Although he stated on the citation the electricity rated 230 to 460 volts, Patterson testified it was
actually 240 to 460 ·volts (Tr. 77-78)).

1442

Patterson saw only three wires entering the box. In his opinion, there should have been a
fourth wire, a ground wire. When Patterson did not see the fourth wire, he concluded the metal
casing of the motor was not grounded and section 56.12025 wa5 violated (Tr. 69; ~Gov.

Exh. 2B).
Patterson was not alone in this view. MSHA electrical inspector, Jon Montgomery, who
inspected the mine a few days after Patterson, also believed that a fourth wire was necessary to
meet the standard' s grounding requirement. He testified a ground wire was "the best way" to
insure a path back to the electrical source (Tr. 278, 280).
·
Patterson believed the lack of a ground wire was dangerous. If insulation on a conduit
wore and exposed a naked wire, and if the bare wire touched the motor's metal casing, a person
who touched the metal could be severely shocked or electrocuted (Tr. 70). However, if the metal
casing were properly grounded, the electricity would travel back to the source of the power,
rather than through the person (Tr. 71 ).
Employees regularly traveled in the area where the motor was located to grease the
crusher or to check oil levels on the equipment. Also, there was a portable welder in the area,
sitting within a foot or two of the motor (Tr. 72). The mine floor in the area where the motor was
located was saturated with water (Tr. 71). In Patterson's opinion, this increased the likelihood of
a person becoming "a fantastic conductor" for electricity (Tr. 76).
Fortunato Palumbo asked Patterson if he knew whether the motor casing and the entire
structure on which it sat was grounded "through steel beams and . . . steel lattice work," i.e., if he
knew whether everything was frame grounded (Tr. 77). Patterson did not know, hut he testified
he told Carmine Palumbo that even if the motor casing were frame grounded, there had to be a
wire ground that went back to the electrical source (Tr. 81-82). Patterson emphasized that
MSHA did not accept frame grounding. The agency required a four wire system (Tr. 79).
According to Patterson, MSHA' s policy was set forth in the agency' s Program Policy Manual
(fl!M) (85-86).
Fortunato Palumbo stated that he did not know if the ground wire was missing, as
Patterson maintained (Tr. 84), but in any event, the pump motor was frame grounded.

THE VIOLATION
Patterson was specific in describing the Jack of an observable ground wire (Tr. 69 ),
whereas Fortunato Palumbo did not know whether it was missing (Tr. 84). Therefore, I find the
Secretary established that there was no fourth wire to ground the motor's metal casing.
Fortunato Palumbo was equally specific in testifying how the cited equipment was frame
grounded (Tr. 83-84), whereas Patterson did not know whether or not it was (Tr. 85). Therefore,
I find the company established the motor casing was frame grounded.

1443

Section 56.12025 does not set forth any particular means for grounding me~ enclosing
or encasing electrical motors. The standards for metal N~d nonmetal mines define "electrical
grounding" as "to connect with the ground ·to make the eill1h part of the cimUt• (30 C.f.R.
§ 56.2). This is exactly what Fortunato Palumbo described with respect to the WunC grounding
of the cited motor casing.
·
In a case involving a similar set of facts, Commission Administrative ~w Judse Ri~hard

Manning stated that h~ did "not doubt that a fourth wire grounding sy$tem is ~te of the art at the
present time and that it offers certain advantases over .. . [a frame $fOunding) $)'$tern," but that if
the proof established the cited casing was frame grounded, "[t]he SecreW}' f'Aile.d t9
show . .. that the metal encasing the cited motor was not grqUJ)ded nor provided with ~uivalent
protection" Tide Creek Rock, Inc., 18 fMSHRC 390, 396-)97 (M~ch 1996)). I fil\d
Judge Manning's reasoning equally applicable here.
Further, although Patterson believed the PPM prohibited frame groynding, l do not read it
to do so. There is no provision of the PPM dealing with section 56.14(}f$, AAQ til~ pr9vision tg
which the inspector apparently referred, 56/57.12028, is intended to insure ~t continuity and
resistance tests of grounding systems are conducted on a specific sch~\dG, Whll~ the. provision
may have been premised on the assumption that the systems tested are Q9t frame gro~ded
systems, it does not specifically prohibit frame grounding (Gov. Exh. 3; $e ;!1§2 iV Pf M ~t 5l,
52).
Commission Administrative Law Judge Augustus Cetti has sp~~~§t~d. !llf\he ~~Cf@Wy
believes frame grounding should be prohibited, the Secretary shoqlg inid~~ P.PPfQPOflte fll)e
making to achieve this goal• (Contractors Sand'& Gravel Supply, l.nc., 1~ FM$f!R~ ~~4, ~8~
(March 1996) (ALJ Cetti)). It is a good suggestion.
I conclude the alleged violation has not been provep.

CiWion
4286260

4/8/96

56 C.F,R.~

Prqpp~ Penalty

14112{b)

$1H

The citation states:
The guard had been removed from the back-side of the cross9yer ~Jt tml
pulley and was not replaced. The self cl~g tail pulley w~ ij)Pro~~ly
2 feet above ground level. Existing hardware for attaching the guard iJldi~~~ ~~
tail pulley had previously been guarded.
In additional to alleging a violation of the standard, the citation contains an s•s fWding.

1444

Patterson observed stone being carried on the crossover conveyor belt (Tr. 41-42).
Although the belt was operating, the guard protecting its tail pulley assembly was missing.
There had been hooks on the tail pulley to which a guard screen~ been attached, but the hookS
either were so bent they could not be used, or they had been remov~d (Tr. 38-39).
The tail pulley assembly was between 1 and 2 feet above ground. A space that measured
about 1 112 feet wide existed on both sides of the tail pulley. This was enough room for a miner
to walk without restriction into the tail pulley (Tr. 28). Employees bad to go into the area to
grease the pulley. From tiine to time they also needed to clean spillage under and around the
p'Ulley, to dislodge stones stuck in the pulley, and to adjust the belt {Tr. 30).
Without a guard, Patterson believed it reasonably likely a miner's clothing would be
~ught in the tail pulley and the miner would be dragged into the mechanism. The miner would
suffer injuries ranging from broken bones to death {Tr. 29-31 ).
Fortunato Palumbo agreed with Patterson that the guard was missing (Tr. 37). However
he disagreed with Patterson's assessment of the hazard. He testified that all maintenance of the
equipment was done in the morning before the equipment was started, and if there was any
~pillage it was cleaned up after the equipment was shut doivn (Tr. 63).
THE VIOLATION
S~c\ion ~6, l4112(b) requires that ..Guards ... be securely in place while machinery is
being o~rnt~d. except when testing or making adjustments which cannot be performed without
removal of the guard,"

The company did riot ctispute that the guard was missing and the belt was operating.
Therefore, I find these conditions existed. The company maintained as a general matter that it
Wa$ in the process of repairing and maintaining the equipment at the pit and the guard ..would
normally have been there when [the company] completed [the] repairs ~d maintenance"
(Tr. 37f However, no one was doing adjustment or maintenance on the tail pulley assembly or
the conveyor belt when Patterson was there, and Patterson saw no evidence such work was in
progress. I conclude the Secretary proved the violation as charged.
S&S AND GRAVITY

A violation is properly designated S&S, uif, based on the particular facts surrounding the
violation there exists a reasonable likelihood that the hazard contributed to will result in an injury

1445

or illness of a reaso~able serious nature" (Cement Division. National Gypsum Co.,
3 FMSHRC 825 (April 1981)). There are four things the Secretary must prove to sustain an S&S
finding:
·
(1) the underlying violation of a mandatory safety standard; (2) adiscrete
safety hazard - that is, a measure of danger to safety contributed to be 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
reasonable serious nature (Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984);
see also Austin Power Co. v. Secretary, 861 F.2d 99, 104-105 (5th Cir. 1988)
(approving Mathies criteria)).
The question of whether a violation is S&S must be resolved on the basis of the conditions as
they existed at the time of the violation and as they might have existed under continued normal
mining operations (Eastern Associated Coal Corp.• 13 FMSHRC 178, 183 (February 1991);
U. S. Steel Mining Co .. 7 FMSHRC 1125, 1130 (August 1985)).
Here, there was a violation, and the lack of a guard at the tail pulley contributed to the ·
hazard that a miner working in the vicinity of the pulley would be caught in the pulley
mechanism and be seriously injured or worse.
I credit Patterson's testimony that from time-to-time miners needed access to the tail
pulley to adjust it, clean up around it, and/or maintain it (Tr. 30). While I credit Fortunato
Palumbo's testimony such work usually was done either before the belt was started or after it was
shut down (Tr. 63), I would be naive to believe this always occurred. It is common knowledge
that clean up or maintenance work is at times required after the belt has started operating and that
miners attempt to do the work quickly before the belt is shut down. It is something that happens
in the context of continued normal mining operations.
I therefore conclude that as mining continued it was reasonably likely that a miner would
attempt to do clean up or maintenance work around the unguarded trail pulley assembly, would
be caught and dragged into the pulley, and that the resulting injuries would be of a reasonably
serious nature. The violation was S&S.
Because the company was doing maintenance work at the same time it was processing
stone, it is likely miners either had been and would be in the vicinity of the tail pulley. In view
of the fact that I believe it is likely some work around the pulley would be conducted while the
conveyor belt was running, and in view of the gravity of the injuries that could be expected when
a miner was caught in the unguarded pulley assembly, I fmd the violation was serious.

1446

NEGLIGENCE
I have found there was maintenance work going on at the facility. I also believe the
Palumbos• contention the facility was not yet in a total operational mode. Because the facility
was not yet operating at "full tilt," the frequency with which miners were exposed to the hazards
of everyday mining was lessened, as was the company •s duty of care. 1conclude, therefore, that
the company's negligence was moderate.
Citation
4285642

4/8/96

56C.F.R.§

Proposed Penalty

141 09(b)(1)

$50

The citation states:
The metal rails that were used to prevent a person from falling against the
first 4 troughing rolls and [the] belt (both sides) of the crossover conveyor had
been removed and were not replaced. The unguarded rolls were approximately
3 112 to 5 112 feet above ground level.
Patterson testified the conveyor belt below the cone crusher was not guarded adequately
to prevent miners from contacting the belt or four troughing rolls under the belt (Tr. 100).
("Troughing rolls" are defined as "[R]olls .. . that are so mounted on an incline as to elevate each
edge of the belt into a trough" (U. S. Department of the Interior, A Dictionary ofMining Mineral
and Related Terms ( 1968) at 1169)). Patterson stated the purpose of the rolls was to "make the
belt into a trough . .. to keep the material within the belt so it doesn't run off all over the ground"
Gov. J?xh. 2C, 2 BB).
.
(Tr. 102;

=

The conveyor belt was between 3 1/2 to 5 112 feet above the ground. The belt was
running and there was stone on it. Railings that had protected miners from the danger of
contacting the belt and rollers had been removed. Patterson feared a person walking by the belt
could fall or trip or slip and be caught in turning rollers (Tr. 101·103).
Fortunato Palumbo again maintained that the plant was being operated only on a •test
run" basis and that, in fact, the plant could not have been fully operational because at that time
there was no water to clean the material as it was processed (Tr. 105). According to Palumbo, .
the railings had been taken down when new rollers were installed (Tr. 108·1 09). There was
stone on the belt and the belt was nmning because the only way to make sure the belt was
aligned properly was to run it (Tr. 11 0).

1447

THE YJOLATION
Section 56.141 09(b)(I) states that "Unguarded conveyors next to the t:ravelways shall be
equipped with- [r]ailings which- [a]re positioned to prevent persons from f~ling on or against
the conveyor."
To establish a violation the Secretary must prove the cited conveyor was unguarded, that
it was next to a travelway, and that it did not have a railing to prevent a person from falling on or
against the conveyor. Patterson testified without dispute that both sides of the crossover
conveyor were unguarded (Tr. 100). Patterson also testified without dispute that there were no
railings to prevent a person from stumbling or tripping into the belt mechanisms (Tr. 101 ).
Patterson did not specifically testify that a travelway was next to the belt, but he did state that
without the railings, a person walking by the belt could fall, trip, or slip and be caught in the
unguarded conveyor belt and roJiers (Tr. 101). Obviously, a person could not fall, trip, or slip
into these mechanisms unless the person was or had traveled in the vicinity of the rollers. It is
obvious too that a person would have to walk or travel next to the belt to gain access to the
conveyor belt rollers. 1 infer from these factors, as well as from the fact railings had been in
place previously (Tr. I 08), that the belt was next to a travelway, and I conclude the Secretary
established the violation.
In finding the violation, I reject any suggestion compliance was not required because the
railings had been removed in order to install new rollers. That work was over. FQrtun~to
Palumbo spoke of the rollers as having been "newly installed" (Tr. 108). The rajli~gs should
have been replaced once the work was finished.
I also reject the suggestion there was no violation t>ecause the pit was operating on a "te~t
run" basis. As 1 have found, while I do not doubt maintenance work was being qone, it js also
true that equipment was being operated and stone was moving along and througll the equipment,
As a result, the company' s miners were entitled to the full proteQtion 9f the Act, whether or PQt
the facility was totally operational.

GRAVITY
Patterson found that the violation was not serious. It long has been held the gravity of a
violation is determined by analyzing the potential hazard to the safety of miners and the
probability of the hazard occurring (Robert G. Lawson Coal Co.~ I IBMA 115, 120 (May }97~)).
While Patterson testified regarding the potential hazard to mi~ers, neither he nor ~y other
·
witness for the Secretary offered a view as to the probability of a miner being caught in the
conveyor belt rOllers or being injured by falling onto the belt. For example, there was no
testimony regarding the frequency with which miners accessed the travelway nor was there
testimony regarding conditions on the travelway. I find, therefore, that this was not a serious
violation.

1448

NEGLIGENCE

For the reasons stated with regard to Citation No. 4286260, I find the company's
negligence was moderate.
Citation
4285643

4/9/96

56 C.F.R.§

Pro.posed Penalty

12025

$117

The citation states:
The 110 volt electrical circuit that provides power to the diesel pump
located at the diesel fuel skid tank was not provided with a guard. The groun~
prong had been removed from the power cord.plug in the switch/utility trailer.
ln additional to alleging a violation of the standard, the citation contains an S&S finding.
While at the pit's motor control trailer, Patterson noticed and inspected the electric cable
that provided power to the diesel fuel pump. (Patterson described the fuel pump as the "type

Qf! . . pump that . .. would pump gas into your vehicle at a service station" (Tr. 121).) The cable
~ed 110 volts of electricity. The cable ran from the trailer up a hill to the fuel pump. The

pump was enclosed in a metal housing. A rope was tied around the housing and Patterson
~otic~ that the wire which had served as the ground wire for the pump was hanging loose,
unconnected to the pump (Tr. 121, 123; ~Gov. Exh. 2F). The disconnected ground wire
indicated to Patterson that the metal casing enclosing the pump motor was not grounded
(Tr. 122).
Patterson believed that the failure to ground the motor's casing subjected miners to the
danger of being shocked or burned. If the electrical circuit to the pump contained a fault; a
miner who was pumping fuel and touched the pump could, as Patterson put i~ •get zapped"
(Tr. 123). Further, the earth around the pump was damp (ld..).
Fortunato Palumbo maintained the pump had been idle all winter and when Patterson saw
it the company was in the process of checking the pump's electrical integrity. This was part of
the nonnal spring "shakedown" procedure (Tr. 127).
·

THE VIOLATION
As noted, section 56.12025 requires the grounding of metal encloSUJCS or casings of
electrical circuits. Patterson's testimony describes, and the Secretary's photographic evidence

confums, that the metal casing of the electrical motor of the fuel pump was not grounded
(Tr. 121-123; Gov. Exh. 2F). Fortunato Palumbo essentially agreed that Patterson accurately
described the condition of the pump (Tr. 126-127). Patterson saw no evidence the company was

1449

engaged actively in checking the pump's electrical circuits when he inspected the pump. If the
company checked the circuits prior to Patterson's inspection, it should have reconnected the
ground wire. Further, the company did not contend the pump casing was frame grounded.
Therefore, I find that the violation existed as charged.
S&S and GBAVIIY

The Secretary established three elements of the proof necessary to sustain an S&S
finding. There was a violation of the cited mandatory safety standard, the violation subjected
those who used the pump to the possibility of being shocked, perhaps seriously. However, it is
not possible to determine the reasonably likelihood of the injury. Patterson testified that if there
was a fault in the circuit, any miner touching the pump could be shocked (Tr. 123). He also
testified that the pump m.iih1 be used up to two times a day (Tr. 124). What he did not reveal
was how likely an electrical fault was or would be as mining continued. Nor did he explain how
miners using the pump would touch its energized casing or how likely such contact was.
Without evidence on the "likelihood" factor, I cannot find the violation was S&S.
Nevertheless, the violation was serious. Although the likelihood of an electrical fault is
not clear, it is possible one could have occurred. The conductor to the pump carried 110 volts,
and the metal casing could have been energized. Also, it is possible that a miner using the pump
could have touched the casing. The ground around the pump was damp. As Patterson explained,
the violation could have lead to a miner's body becoming the shortest route to ground the current
(Tr. 123). Further, afthough the circuit carried only 110 volts, Montgomery persuasively
described, in the context of another violation, how shocks from low voltage can have serious
consequences (Tr. 276-277).
NEGLIGENCE

For the reasons stated with respect to Citation No. 4286260, I fmd the company's
negligence was moderate.

Citation
4285644

4/9/96

56C.F.R.§

Proposed Penalty

4101

$50

The citation states:
Signs prohibiting smoking and open flames were not posted at the diesel
fuel skid tank.
Patterson noticed an above-ground fuel tank attached to the pump. The tank contained .
diesel fuel. Patterson saw no signs warning against smoking or open flames. Patterson believed
the signs were required by section 56.4101 (Tr. 138).

1450

In Patterson's opinion the lack of warning signs could have lead to someone smoking or
to someone using an open flame - a blow torch, for example- which in tum could have
resulted in a fire or explosion (fr. 139). However, Patterson agreed
with Fortunato Palumbo,
.
that diesel fuel is less volatile and harder to ignite than gasoline and that this somewhat lessened
,.
the chance of a fire or explosion (Tr. 141-142).
THE VIOLATION

Section 56.4101 states "Readily visible signs prohibiting smoking and open flames shall
be posted where a fire or explosion hazard exists." The company does not dispute there were no
signs. Nor does it dispute there was a fire or explosion hazard at the tank. Rather, it argues the
danger was less with diesel fuel than if the tank held gasoline. Therefore, I agree with Carmine
Palumbo who stated, "We are guilty of not having a sign" (Tr. 142), and l find that the company
violated section 56.410I.
GBAVITY

Failure to post the signs was not a serious violation. The signs are not a primary
preventive measure. Rather, they are secondary in that they are designed to remind miners of
what they already·know- not to smoke or use open flames around a visually obvious fuel tank.
The fact that few miners were at the mine reduced the possibility the lack of a sign would
contribute to a fire or explosion, and Patterson agreed that the diesel fuel was less likely to be
ignited by a lighted cigarette or an open flame (Tr. 141-142).
NEGYGENCE

Although the violation was visually obvious, the company's negligence was low given
the fact that the company was just beginning its seasonal operation, the fact that few miners were
at the mine, and the fact that hazard was not serious.
Citation
4285645

4/9/96

56 C.F.R.§

Proposed Penalty

14112(b)

$111

The citation states:
Both sides and the back of the tail pulley guard at the main belt below the
jaw crusher were removed and were not replaced before the belt was energized.
Existing bolts on the conveyor frame indicate this area had been guarded
In additional to alleging a violation of the standard, the citation contains an S&S finding.

Patterson found the tail pulley of the main conveyor belt beneath the jaw crusher was not
guarded. (The conveyor transports material from the crusher to the screen tower.) The pulley
was located about 1 112 to 2 feet above the ground. The pulley was different from a drum type

1451

pulley in that it had rotor·like fms that spun around and helped keep the pulley area cJean
(Tr. 143; =Gov. Exh. 2H). Both the conveyor belt and the jaw crusher were operating when
Patterson observed the condition (Tr. 152).
Because the pulley area was unguarded, Patterson feared miners who reached into the
area with shovels or with their hands to dislodge stuck stone or foreign materials, or to grease the
mechanism, would become caught by the "fins" and pulled into the pulley (Tr. 143·145). "We
have accidents all the ~e: he stated, "where people loose anns, hands, the entire arm gets
ripped off. We've had guys caught in these things and sucked into the equip~ent an(j ... [t]hey
come out hamburger" (Tr. 144·145).
Moreover, the bottom part of the belt was running in accumulated materials, ang
Patterson felt that a miner might come at any time to clean up beneath the \.Ulg~ded ar~~
(Tr. 144, 148). The tail pulley had been guarded (Tr. 151·152). However, th~ guards h~d been
taken off. They were not in the area, and no one knew where they were (Tr~ 151).
Fortunato Palumbo maintained that the guards had been removed ~cause the company
was in the process of getting the belt ready for use during the season, and that <;>nce the "shake·
down" period was over, the guards would have been replaced (Tr. 150).

THE VIOLATION
As previously stated, section 56.14112(b) requires guards on pulleys to be in place whiJ~
the machinery is being operated, except when the equipment is being tested 9r fl(ijusted and when
such work cannot be done without taking off the guards.
I find the violation existed as alleged. The company did not dispute the pulley area w~
unguarded. Nor did the company dispute the conveyor belt was being operated. While it would
have been difficult for a miner accidentally to access the area and become caught in th~ pulley,
one who purposefully tried to clean the area under the belt or to service the puil~y while-the ~ll
was operating, easily could have been caught by the "fins" and pulled intQ the unguarded pu!l~f:
The company's arguments it should not have been cited for a condition existing while it
was readying the facility for full production and it had to remove to guards to do ~ienance
work on the conveyor belt and pulley again are rejected (Tr. 150). While it may well ~ ~~ m~
guards were removed to facilitate maintenance work on the conveyor belt and pulley, I conclv.,d.~
the work had finished and the company was too slow in replacing the guards. I am persuad~ of
this by Patterson's testimony that when he observed the tail pulley, the conveyor belt and jaw
crusher were operating (Tr. 152). Patterson did not see anyone working on the pulley or~!! ~d
when he asked about the guards, all he was told was that no one knew where they were (TT: 1S1).
There was no testimony that anyone told him the guards had been removed to make repairs or
adjustments to the conveyor belt and/or tail pulley. Nor was there any visual eviden~ such
repairs or adjustments were necessary.

1452

S&S and GRAVITY

There was a violation of the standard. The violation meant those who tried to service the
pulley while the conveyor belt was running or who tried to clean accumulated llaterials from
under the belt would have been subjected to being caught in the pulley and seriously injured.
Patterson offered valid.reasons why it was reasonably likely such an accident would have
happened: First, although access to the pulley area was difficul~ it was not impossible. Anyone
who purposefully tried ~o service or to clean up under the pulley could have done so. Second,
there was an accwnu1ation under the pulley and the belt was running in it. This created an
immediate incentive for the company to insure the area was cleaned. As Fortunato Palumbo
~xplained, the belt cost approximately $2,500. Keeping it from running in accumulations
ext~nded the li~e of the belt, as did keep~g the pulleys greased (Tr. 153).
I have credited Fortunato Palumbo's contention it was the company's policy regularly to
clean up and service the belts and pulleys while the belts were not running (Tr. 153). It is simply
goo~ mining practice to implement such a rule. However, miners do not always do what they
are instructed to do, and access to the unguarded area presented miners with the opportunity to
do those jobs without waiting for the belt to shut down, an opportunity that easily could have
been too tempting for a miner in a hurry (.s« Tr. 147-148). Given access to the area, the need to
work in the area, and the economic incentive quickly to do the work, I conclude it was reasonable
likely as mining continued a company employee would have been caught in the unguarded pulley
and severely injured or killed (Tr. 144-145). The violation was S&S.

The violation was also serious. There was an obvious need to access the area to clean
under the unguarded pull~y. This need raised the real p6ssibility that a person trying to clean
material from under the pulley or trying to service the pulley would, as Patterson graphically
stated, become entangled in the mechanism and loose a hand, an ann, or worse.
NEGLIGENCE

For the reasons stated with respect to Citation No. 4286260, I find the company's
negligence was moderat~.
Citation
4285646

4/9/96

56C.F.R.§

Proposed Peualzy

14112(b)

$111 .

The citation ~tes:
The guards bad been removed and were not replaced from the head pulley
(lower side) and from the gear reducer drive pulleys leaving the conveyor belt and
v-belts . . . nip points exposed. [The e)xposed belts & pulleys were approx. 6 feet
above [the] screen deck walkway. Existing bolts indicate a guard bad .been
attached at this location.

1453

In additio~al to alleging a violation of the standar~ the citation contains an S&S finding.
Patterson testified that during the inspection he noticed-there were no guards for the lower
side of the head pulley of the conveyor belt, the main conveyor belt drive moto!", and the gear
reducer pulley. He explained that the head pulley is located at the discharge ena of the main
conveyor belt, approximately 6 feet directly above the walkway on the screen tower (Tr. 156157). The motor that powers the gear reducer also is located at this end of the belt (Tr. 155-156).
When Patterson noticed that the guards were missing, the belt and head pulley were
operating (fr. 161; ~Gov. Exhs. 21, 21). Patterson also noticed bolts and "maybe brackets,"
indicating guards once had been in place (Tr. 156).
Patterson feared an employee who traveled the walkway under the pulley in order to
clean up spillage, to grease the pulley, or to adjust the belt, would slip, would put out an arm or
hand to maintain his or her balance, and would become entangled in the moving parts of the
pulley, drive motor, or the motor's v-belt (Tr. 157, 164). Also, he was concerned if the belt
frayed., that one of the loose pieces of belt would catch an employee's clothing. The result would
be cuts, broken bones, the loss of a limb, or death (Tr. 157-158).
Patterson stated that "in many cases" MSHA inspectors found miners servicing belts and
pulleys while the belts were running, although he was not aware of any such incidents at the
Dover Pit (Tr. 160).
Fortunato Palumbo maintained the equipment that lacked the guards was closer to 8 feet
above the walkway than to 6 feet (Tr. 167). At first he also maintained that when the shaker
screen was operating the walkway under the pulley vibrated so much that no one but "a blooming
idiot" would stand under the pulley and try to service the conveyor or pulley (ld.), and Patterson
appeared to agree with Palumbo that it was extremely unlikely any miner would stand on the
walkway under such conditions (Tr. 169). However, in subsequent testimony, both men seemed
to agree that operation of the shaker screen did not cause the walkway to vibrate to any great
extent (Tr. 201-205).
Fortunato Palumbo confinned that the area had been guarded. He stated the guards had
been removed because all of them were being changed (Tr. 171). In addition, Carmine Palumbo
explained that the stairs leading to the shaker screen walkway had a bar across them to prevent
access and that a person could not get to the walkway unless he or she went over or under the bar
(Tr. 172-173).
Patterson concurred there was a bar on the stairs (he called it a "gate"), however, as he
recall~ the •gate" was open when he was there (Tr. 174). In any event, Patterson testified he

explained to Carmine Palumbo that area guards were not an acceptable means of complying with
the standard (Tr. 175).

1454

THE VIOLATION

The requirements of the standard have been stated previously.
Here, the company did not disagree with Patterson's testimony that the cited machinery
was operating and unguarded (~ Tr. 171 ). Rather, the company's primary defenses were that

the machinery was 7 or 8 feet above the walkway and access to the walkway was barred.
While 30 C.F.R. § 56.14107(b) exempts operators from guarding exposed moving parts
that are at least 7 feet away from walking or working surfaces, I conclude the exemption is not
applicable. l credit Patterson's estimate that the cited machinery was approximately 6 feet above
the platform. Patterson saw the area and the fact the machinery was guarded previously implies
his on site estimate was accurate.
Further, the violation is not excused by the fact that the stairs leading to the walkway had
a bar or "gate." Patterson, at the time he cited the violation, recalled that it was open (Tr. 174).
Even if it was closed, the gate could not serve as a defense. There was nothing to prevent a
miner from going under or over it to reach the walkway, (~Jamison Company, 15 FMSRHC
2549, 2554 (December 1993) (ALJ Lasher)).
S&S and GRAVITY

Patterson testified about the injuries that would have befallen miners who became caught
in the moving and unguarded machinery, but neither Patterson nor any other witness offered
testimony there. was a reasonable likelihood the hazard would result in such injuries. Patterson's
statement that "in many cases" MSHA's inspectors found miner's working on unguarded
machinery while the machinery was operating was followed by an admission this had not
occWTed at the Palumbos' operation (Tr. 160). Further, the Secretary offered no evidence
regarding the frequency 'o f service on the cited equipment and no explanation of bow such work
was done. Also, while the height of the unguarded machinery did not make service of the
equipment impossible, it made service and contact extremely difficult and greatly reduced the
likelihood of contact (Tr. 169). For these reasons, I conclude the violation was not S&S.
Because the likelihood of injury arising from the violation was remote, I also 'conclude
the violation was not serious. The gravity of injuries that might have OCCUlTed was more than
offset by their improbability.
·
NEGLIGENCE

Because I credit the company's contention the pit was in the process of-being placed on a
fully operational basis, because few miners were exposed to the h.uards of noncompliance, and
because, in this instance, the hazards resulted in a very remote chance of injuries, I find the
company's duty of care was lessened and its negligence was low.

1455

Citation
4/9/96

4285647

56 C.F.R.§

Proposed Penal_!¥

12025

$111

lJle citation states:
The 30 horse power, 230/460 volt, 3 phase electric drive motor for the
shaker screen was not grounded. 1bis is a wet screen which causes the entire
screen deck[,) walkway, and electric m9tor to be wet during plant operations,
depending on wind.
In additional to alleging a violation of the standard, the citation contains an S&S fmqing,
Patterson testified that the 30 horse power electric drive motor for the shaker screen is

J6 to 18 inches long and 10 to 12 inches in diameter (Tr. 176). The motor is attached to a steel
plate, which in tum is attached to the metal walkway that passed under the machinery refer~nc~9
in the previous citation (Tr. 177-178).
Patterson saw only three wires coming out of the drive motor (Tr. 176; Q9v. Exh: ~,J<.) .
He did not see a ground wire (Tr. 181). Patterson again stated his belief that "you've got t9 hav~
that fourth wire to provide a ground ... When you see a three phase with only t4J'ee wire~, you
know that you don' t have a ground" (Tr. 181 ). At the time Patterson saw the motor, the s~~ef
screen had been running. As a result, the tower walkway was wet.
Patterson feared the vibrations of the shaker screen would ~ the el~tri~ ~~ducto~
entering the motor to rub against the motor's metal casing and to fray their insulation, exw.sing
the naked wires. Because the conductors were not grounded, they could energj.ze the fflQtQr
casing, the plate to which it was attached, and the metal walkway that touched the plat~! Anyone
who touched the metal could suffer a sever shock or be electrocuted (Tr. 178). The hazar~ was
heightened by the fact the walkway was wet.
The company maintained it did not violate the standar4: Fortunato P;U~bo te~fi~q tAAt
the motor was frame grounded and that he believed frame grounding constituted compliance wjtJt
the standard (Tr. 183). Cannine Palumbo added that because the motor was frame gropn4~, if
there were a short in one of the motor's conductors, the motor and all the metal contacPug it
would have been grounded (Tr. 184).

THE VIOLATION

..

Section 56.12025 required the metal casing of the drive motor to be grounded. The
Secretary did not refute Palumbo's contention the motor was frame groun~ and I accept it.
For the reasons stated with regard to Citation No. 4285641, I conclude the Secretary has failed to
establish a violation of the standard. In other words, I fmd that the frame grounding ~es¢bed by
die Palumbos constituted compliance.

1456

Citation
4285648

419196

56 C.F.R.§

Proposed Penalty

14107(a)

$81

The citation states:
The shaker screen drive motor v-belts & pulleys guard did not extend a
distance to prevent accidental contact with the moving machine parts or exposed
in-running nip points. Two 1/2 -5/8 inch rebars were used to restrict travel to the
exposed belts[,] pulleys, & machine parts[.] One of the top bar[s) was out at this
time.
In additional to alleging a violation of the standard, the citation contains an S&S finding.
Patterson testified that he issued the citation because the cited moving parts (the drive
motor and pulleys), "were not guarded ... per MSHA specs" (Tr. 188). The equipment, which is
part of the shaker screen tower structure, was operating when he observed it. The drive motor
was turning and the pulleys were revolving (Tr. 190). Some screen cloth was placed
approximately 8 to 10 inches from the equipment. ("Screen cloth" is defined as "[a] woven
medium suitable for use in a screen deck" (U. S. Department of the Interior, A Dictionary of
Mining, Mineral and Related Terms ( 1996); see also Tr. 189). The screen cloth did not cover all
of the pinch points created by the belts and pulleys and Patterson stated that he "explained to
Carmine Palumbo . . . that [the] entire assembly belt and pulleys had to be guarded so that
[a] ... person would not reach into or behind [the] belts and pulleys and make contact" (Tr. 195).
Further, the location of the screen cloth left room for a miner to reach behind the cloth and
become entangled (Tr. 195-196), The adjacent walkway was wet and subject to freezing, factors
that Patterson believed added to the hazard (Tr. 204-205).
Patterson feared any person on. the walkway who traveled past the cited parts would be in
danger of becoming entangled in the ll!.lguarded pulleys and belts. He described the drive motor
and associated pulleys as located 3 112 to 4 feet above the walkway, and he maintained that the..
moving machine parts were easy to contact (Tr. 191 ; Gov. Exh. 2K). He testified there were a
number of reasons a miner would use4.the walkway and pass by the parts, including checking the
screen for debris or holes and cleaning spillage from the walkway (Tr. 191, 210-211). In
addition, he had seen persons trying to grease pulleys while the equipment was running, although
not at this mine (Tr. 192). Any person who contacted the moving parts would be badly cut
and/or bruised, or would loose fmgers or an arm, or would be killed (.kl.).

In Patterson's opinion, the condition was S&S because the height of the equipment,
combined with the wet walkway and the loose stones scattered on the walkway, made it
reasonably likely persons would slip, trip, or fall and become tangled in the belts and pulleys
(Tr. 191).

1457

Fortun~to Palumbo argued that there was no reason for a miner to be on the walkway
while the screen was running and the motor and pulleys wer~ operating (Tr. 200). Carmine
Palumbo testified that the only time a person would be on the walkway would be to change the
bearings on the shaker screen, something that happened twice a year and when~e equipment
not operating (Tr. 202-203). He also noted the presence of two guardrails that were
intended to keep persons off of the walkway (ld.).

was

THE VIOLATION
I have no doubt the company violated section 56.141 07(a). Patterson carefully described
the moving machine parts and how they were either inadequately guarded or not guarded at all
and explained how the parts could cause injury. The company did not contest Patterson's
description of the unguarded parts, or that they were moving. Rather, the company maintained
guarding was unnecessary because there was no reason why miners would access the area while
the parts were operating. Because the language of the standard "specifically and unequivocally
requires guarding for any of the enumerated moving parts that can cause injury if contacted"
(Highlands Board ofCounty Commissioners, 12 FMSRHC 270,291 (February 1992)
(ALJ Koutras)), the company's concerns do not bear upon whether compliance was required, but
rather upon the S&S nature of the condition, its gravity, and the company's negligence in
allowing the condition to exist. In other words, because the moving machine parts cited by
Patterson could cause injury and were inadequately guarded or totally unguarded~ the violation ·
existed as charged.

S&S and GRAVITY
The violation was both S&S and serious. Unlike the testimony presented regarding
Citation No. 4285646, the government established the reasonable likelihood the hazard posed by
the unguarded machinery would result in miners becoming caught in the moving and unguarded
machine parts. The machinery was easily accessible to miners present on the walkway. Neither
of the Palumbos contested Patterson's description of the equipment as being 3 1/2 to 4 feet above
the walkway (Tr. 191 ). Further, neither contested his contention that the wet walkway and loose
stones on the walkway combined to create a slipping hazard and that a person who slipped or fell
toward the belts and pulleys could become entangled in them. Further, it is logical that the water
and stones on the walkway increased the likelihood of a slip or fall in the direction of the belts
and pulleys.
While I accept Carmine Palumbo's assertion that bearings on the shaker screen were
changed twice a year and that the equipment was not be operated while this work was performed,
I reject his testimony that this was the only work that brought miners to the walkway.
Obviously, the cited belts and pulleys had to be serviced from time to time. Also, Patterson's
contention that from time to time employees needed to check the shaker screen for debris and
holes and to clean spillage from the walkway was logical and credible (Tr. 191, 210-211). It is
the kind of work that always needs to be done.

1458

From this I infer miners were at times required to travel and to work in the vicinity of the
Wlguarded equipment. Further, ·and as I have explained previously, while I credit the company's
contention that it was company policy to tum off the equipment when such work was done, I
cannot conclude the policy was followed invariably. Human nature being whatjt is, it defies
belief that miners would always insist on the operation shutting down before aceessing the
walkway to work.
Therefore, I conclude it was reasonably likely that as mining continued at the pit, a miner
would have slipped or 'fallen on the walkway and become entangled in the unguarded belts and
pulleys, or would have been otherwise pulled into the moving parts. It was also reasonably
likely that when this happened the miner would have suffered injuries ranging from relatively
minor (bruises), to very serious (major cuts, the loss of a digit or appendage), or worse (death).
In addition, because the injuries posed by the unguarded belts and pulleys could have
been severe and because miners were from time to time exposed to such injuries by accessing the
walkway, I also find that the violation was serious.

NEGLIGENCE
For the reasons stated with respect to Citation No. 4286260, I find the company's
negligence was moderate.
YORK 96-69-M
Citation
4285649

419196

56 C.F.R.§

Proposed Penalty

14112(b)

$111

The citation states:
The tail pulley guard had been removed and was not replaced on·the
3/8 stone belt. The unguarded tail pulley was approximately 2 feet above the
existing ground level. Existing bolts indicate the tail pulley had been guarded
previously.
In additional to alleging a violation of the standard, the citation contains an S&S fmding.
YORK 96-67-M

Citation
4285650

4/9/96

56 C.F.R.§

Pr<ux>sed Penalty

14112(b)

$111

1459

The citation states:
The tail pulley guard had been removed and Wei$ not replaCed at the
sand belt. The Wlguarded tail pulley was approximately 4 to 5 feet abov.e the
existing ground level. Existing bolts indicate the tail pulley had previously been
guarded.
In additional t.o alleging a violation of the standard, the citation contains an S&S findip~.
Essentially, the allegations concerning (:itation Nos. 4285649 and 4285650 were tried
together.
With regard to Citation No. 4285649, Patterson testified the ~il pqJley asseml::}ly area of
the 3/8 inch stone conveyor belt was not guarded. (The belt transported finished stone from a
transfer point to a stock pile.) Patterson noticed "attachments like hooks and so forth" that had
been used to attach a guard (Tr. 216, 220; Gov. Exh. 2M). The stone conveyor belt was
operating during the inspection (Tr. 215-216).
Because the conveyor tail pulley was within 4 to 5 feet of the grop.nd, Patterson believed
any person working or traveling near it could be entangled in the p.nguarded pu.Jley or the belt
(Tr. 217, 2 19). Work activities that would being a miner in close proximity to the unguardeq
area were aligning the belt to get it running as straight as possible or cle~g '!JP accUmulated
spillage under the belt (Tr. 219). If the clothing of the miner doing such work became caught in
unguarded tail pulley, the person could be pulled into the conveyor belt and be "~ed into
hamburger" (I.Q.). Adding to the hazard was the fact that it was April and that miners wore extra
clothing that could more easily be caught in the mechanisms (Tr. 219).
Fortunato Palumbo testified that the stone conveyor belt was misaligned. The
misalignment had to be corrected, and the only way to corre<>~ it was to make an adjustment and
then to run the belt to see if it was aligned properly (ld.). Palumbo also t~stified that to realjgn
the belt, the guard had to be removed from the belt drive area (Tr. 225).
When questioned by Fortunato Palumbo, Patterson agreed the stone conveym=belt was
misaligned (Tr. 221). Patterson also agreed that belts usually are operated while·they are
realigned (Tr. 225). Patterson stated that "the guard can be taken off if there is an adjustm~Qt"
(Tr. 226). However, Patterson saw no tools indicating the company was in the proces~ gf
adjusting the belt, nor did he find the guard ~ywhere near the tail pulley assembly (hi.).
With regard to Citation No. 4285650, Patterson stated that as he approached the tail
pulley of the sand conveyor, he noti~ the pulley guard was missing. (The sand co~v~yor
carries sand from the sand screw to a stockpile (Tr. 231 )). Like the stone conveyor tail p~!~Y,

1460

Patterson saw indiCations the sand conveyor ~1 pulley once had been guarded. Hooks and bolts
indicated where the guard had been attached (fr. 230-231; Gov..Exh. 2N). Patterson recalled
the sand conveyor belt and the tail pulley as being in operation during the inspection (Tr. 231232).
There was standing water in the area, but enough sand had built up around the pulley for
J miner to·access the unguarded area (Tr. 231 ). Therefore, the lack of a guard meant that when

the belt was running an~ a miner was near it, there was danger the miner would be caught in the
pulley. His or her clothing would be entangled in the moving parts or in the pulley's nip points,
~md the miner would be dragged into the pulley mechanism. Patterson believed it reasonably
likely lhat broken bones, lost limbs, or death would result (Tr. 232).
Because of its height, the tail pulley was easily accessible to anyone working around it.
Such a person would be greasing the pulley, cleaning up around the belt, checking the operation
Qftne sand screen, or making adjustments to the belt (fr. 233). Patterson felt that "at any time
~m~t.>P.e could walk right up to [the unguarded area]" because "[t]here was nothing to restrict
mtyope from going up" (Tr. 234).
FortuQ~to Pallll'nbo agreed the guard was not in place (Tr. 235-236).

THE VIOLATIONS

To prove ~ violation of the standard, the Secretacy must establish that the guards were
missing ~4 that the tail pulleys were operating. In both instances, the parties agreed the guards
wen; missing, f\U1her, P~tterson t~stified credibly that he had seen the belts and the pulleys
opem.tiQg dUring th~ cours~ of his inspectiqn (Tr. 216-217). Based upon all of the evidence, I
find that' the cited tail pulleys were not guarded and were "being operated" within the meaning of
tP~ $.nqard.
flowever, the standard ~so states that a guard need not be in plac.e when an operator is
"making adjustments which cannot be performed without removal of the guard" (30 U.S.C.
§56.14112(b)), and I find this ex~ption applicable in the case of the stone conveyor tail pulley. .
The gist of Fortunato Palumbo's testimony was that the company was in the process of
realigning the belt and that to do this the g1,1ard had to be and was removed (fr. 225). Patterson
agreed the stone conveyor belt was misaligned (fr. 221) and the guard could be taken off to align
the belt.
The fact Patterson saw no tools or the old guard near the tail pulley, does not defeat the
exception. Tho. company may have taken its tools and the old guard elsewhere. Or, it may have
disposed of the old guard. The evidence establishes that the belt was in need of alignment, that
the company was in the process of getting the plant ready for the operating season, and that

1461

the guard could ~ removed to do the realignment. Therefore, I have no reason to doubt
Fortunato Palumbo's assertion that the guard was missing because the belt was being aligned.
The violation of section 56.14112(b) alleged in Citation No. 4285649 has not been established.
'

The allegation with regard to the sand conveyor tail pulley (Citation Ncr. 4285650) is
another story. Although Fotunato Palumbo stated that he •offered the same comments" regarding
both the sand conveyor tail pulley and the stone conveyor tail pulley, neither he nor Cannine
Palumbo testified that the sand conveyor belt was misaligned or had been realigned. Nor did
Patterson testify he observed a problem with the belt's alignment.
The Palumbos were representing the company without benefit of counsel, and I allowed
them considerable leeway. However, to find the exception applied there has to be testimonial or
documentary evidence the guard was missing so that necessary adjustments could be made, and
there is no such evidence here. Therefore, the violation of section 56.14112(b), as alleged in
Citation No. 4285650, has been established.
S&S and GRAVITY
The violation was both S&S and serious. The Secretary proved it was reasonably likely
the hazard posed by the unguarded sand conveyor tail pulley would result in a miner being
caught in the pulley. First, the unguarded pulley was easily accessible. The company did not
dispute Patterson's opinion that there was nothing to prevent or deter access to the pulley, and
the fact that water was standing in the area was negated by the sand "bridge" that was present
(Tr. 231 ). Nor did the company question the fact that location of the unguarded pulley, was such
that a miner easily could walk into it or have an extended ann or piece of clothing caught in it
(Tr. 230). Further, Patterson credibly testified to activities that would bring a miner into contact
with the unguarded pulley - cleaning up around the belt and checking the operation of the sand
screen (Tr. 233). Clearly, as mining continued these activities would have taken place and when
they did, open access to the tail pulley made it reasonably likely an accident would occur.
Finally, as Patterson testified, the result of any accident would have been reasonably serious or
worse (Tr. 232).
Because the injuries posed by the unguarded sand conveyor tail pulley would have been
serious or worse, and because as mining continued, miners would have been exposed to the
danger, I find the violation was serious.
NEGLIGENCE
For the reasons stated with regard to Citation No. 4286260, I find the company' s
.
..
neghgence was moderate.
Citation
4285651

4/9/96

56C.F.R.§

Pmpose<i Penalty

18002

$50

1462

The citation states: .
Records of inspections of working places for conditions which adversely
affect safety or health . . . were not being . . . completed and recorded b¥ a
·
competent person or the operator.
YORK 96-69-M

Citation
4285652

4/ 10/96

56 C.F.R.§

Pro.posed Penalty

12028

$50

The citation states:
The operator did not have available for review records of the annual
continuity & resistance test of the plant's grounding system. MSHA records
indicate the last continuity & resistance test was conducted on 3/12/95.
Essentially the allegations concerning Citation Nos. 4385651 and 4385652 were tried
together.
With regard to Citation No. 4385651 , Patterson explained that section 56.18002(a) in part
requires a competent person to examine each working place at least once each shift for conditions
which may adversely affect Safety or health and that section 56.18002(b) requires a record of the
examinations to be kept for 1 year. In addition, the records must be available for review by
MSHA and its inspectors (Tr. 237-238).
Patterson stated it was his usual practice upon conducting an inspection to ask the person
in charge of the mine where such records are located. At the Dover Pi~ Patterson asked
Carmine Palumbo. Palumbo responded that the records might be at the office. When Patterson
and Palumbo got to the office, Palumbo could not fmd them (Tr. 238).
Patterson did not believe there was "any great hazard" associated with .failing to have
available the results of the examinations (Tr. 242). Nevertheless, Patterson noted the records
could be useful to an operator because they could alert the operator to conditions that needed
correction (Tr. 243).
Fortunato Palumbo testified the examinations were conducted but that he "was not
aware ... there'was a requirement for a written record" (Tr. 240).
With regard to Citation No. 4685652, Patterson explained that section 56.12028 requires
in part that the continuity and resistance of grounding systems be tested annually after the
systems have been installed. In addition, a record of the resistance measured dming the most
recent tests must be made available to MSHA and its inspectors upon request. The tests establish
the continuity of the system and reveal the presence of any electrical faults (Tr..245).

1463

According to Patterson, when he was at the mine on April 10, he asked to see the result
of the last annual continuity and resistance test for the plant's grounding system. Qmnine
Palumbo thought the reports might be at the office. When Patterson and PaJ~bo got to the
office, Palumbo could not find the records (Tr. 244-246).
Fortunato Palwnbo testified that the continuity and resistance te$tS were last done in the
spring of 1995, but that he too could not fmd a record of the tests (Tr, 249-250, 25 1).

THE YJOLAIIONS. GRAVID'· & NEGLI(;ENCE
Patterson and Fortunato Palumbo agr~d the required record~ w~re not k.~p\ (Tr, ~40,
249-250, 251 ). Patterson essentially testified that the failure \o ke~p t}le r~rd§ W3..S PQt ~QU3
(Tr. 242). Therefore, I find that the violations occurred ~d ~t dley ~re. gfmimmlll ~vity,
The company's failure to keep written records represen~ a mo4em~ l~k of~~. The
record keeping requirements are clearly stated in the regulation~, and il is the dYl)' gf an o~rat~r
to know and abide by the regulations. Ignorance does not lessen the operat9r'$ 4uty 10 comply.
56 C.F.R.§

Citation
4285271

4/17/96

12030

The citation states in part:
The MCC [motor control center] trailer used to power the pi~~ has nQl
been maintained, or, used in a workman-like maQJler, bas no evjd~n~ gf ~ p.ro~r
and safe grounding system, and contains other violations creating sopt~
potentially dangerous conditions.
In additional to alleging a violation of the standard, the citation con~ 1m ~"~ ftP.4m8:
Jon Montgomery is an MSHA electrical i~tor. li~ went to tl.te I>Qv~r Pit o.~ Aptill1 t
1996, in order to further inspect the operation's grounding sy~lll <Tr~ ~Sl,.~SS.)~ ~pqlg~m~cy
first inspected the motor control center trailer (a v~..ty~ trail~r). Ill ~cljtio~ t9 bsm& ~ fgf
storage, the trailer housed the electrical controls for almost aU of the electricaJ eqllipm~t ~~ tfl~
pit, including the conveyor belts, shakers, and the cone crusher (Tr. 257).
Inside the trailer Montgomery noticed a nUPl~r 9f ~~posed ~d ~pergize4 relay g~yj~§ :
He also noticed starters, disconnecting devices, and conduits that w~ expQ~ @11~ uD.Pf{>te~tc;g
(Tr. 258,262-263,267-270, 271; Gov. Exhs. 20, 2P, 4T, 2,U, 2V). lp a4~tio~ he 9~,.-v~
cables that were not bushed where they left junctiQn boxes (Tr. 2~5-266; Gov. Exh!~R}, <J$.er
cables that were not installed in a workman-like Ql8DDer, apcJ ~s that were too l~e fi>r !h~*

1.464

.-

conductors (Tr. ~59). Finally, the electrical service mast (a conduit that rose above the trailer and
that provided access to incoming electrical wires) was laying on an angle and was not supported
(Tr. 259-260; Gov. Exh. 2W). The condition of the service mast put additional stress on the
cables entering the trailer (Tr. 273).
Cannine Palumbo's son was at the mine on Aprill7, and Montgomery asked him how
long the conditions had existed. He did not know (Tr. 275). On the other hand, Fortunato
Palumbo told Montgomery the conditions had "been like that for many years" and that other
MSHA inspectors had "no problem" with them (Tr. 275-276).
In Montgomery's opinion all of these conditions created a serious shock and fire hazard,
and he cited the company for failing to correct them before the electrical equipment was
energized (Tr. 259-261 ; 263, 267). Montgomery believed that a short in the system would have
resulted in a fire in the trailer or a shock hazard to miners working in the trailer (Tr. 260). In his
view,.the confluence of the conditions made it reasonably likely an injury would have resulted
(Tr. 282-2~3). He noted employees often were exposed to the conditions because they frequently
entered ~e trailer during the course of a shift to start and stop equipment and to obtain parts
(Tr. 283).
Fortunato Palumbo reiterated what he had told Montgomery, that the wiring in the trailer
had been in place for "a number of years" (Tr. 285). Indeed, some of it was installed in 1971 or
1972 (M.). He maintained many of the unprotected wires did not require conduits because they
bad an "extra heavy covering" (Tr. 286), and that, in any event, the trailer itself was grounded by
structural frame grounding (Tr. 287). He admitted, however, that the service mast was not as
straight as "good practice" required (Tr. 288).
THE VIOLATION

Section 56.12030 requires that "a potentially dangerous condition" be "corrected before
equipment or wiring is energized." I credit Montgomery's testimony reg~ding the conditions he
found inside the trailer and the condition of the outside service mast. Montgomery's recitation of
the conditions was detailed and was confirmed by pictorial evidence entered into the record by
the Secretary(~ Gov. Exhs. 20-2X). Furtl1er, the company did not contest his description as
much as challenge the conclusions he drew from the conditions. Sirice it is clear from
Patterson's testimony the electrical equipment had been running at the plant, and since it is also
clear that the conditions Montgomery described existed when Patterson was there and the
equipment was running, the question of whether or not a violation occurred turns upon whether
the conditions were potentially dangerous.

1465

I agree with Montgomery that the exposed wiring should have been protected from
unintended damage~ and that failure to protect it presented a fire and shock hazard. The
standards do not exempt conductors from the protection afforded ·by covers or conduits on the
basis of their jackets. Vibrations or other stress factors eventually can wear through the toughest
outer jackets.
I also agree with Montgomery that fuses that were too large for the conductors they

serviced added to the danger. He persuasively described what could happen: •[I]n the event of a
short circuit [or] overload, the fuse is intended- or the circuit breaker is intended [to] open. If
you size that too large then the fuse or the circuit breaker will not open ... and the conductor will
start overheating resulting in, most times, a fire" (Tr. 259).
I further agree that the bent service mast put stress on the incoming electrical wires and
made it more likely the live wires would disconnect in the trailer, especially in view of the fact
the wires outside were subject to the weight of ice forming on them during spring storms {Tr.
273). In this regard, I note Fortunato Palumbo's statement that "[g]ood practice" required the
mast head to be straight and supported (Tr. 288).
The fact that miners frequently entered the trailer to start or stop equipment and to obtain
parts, meant that they were directly subjected to the hazards, and this·too contributed to making
the conditions "potentially dangerous" within the meaning of the standard.
Without conSidering whether or not there was a "safe grounding system" {Citation
No. 4285271) there is more than ample evidence of the potential dangers posed to miners by the
other cited conditions, and I sustain the alleged violation.

S&S and GRAVITY
The violation was both S&S and serious. The conditions cited by Montgomery, created a
measure of danger to the safety of the miners who entered the trailer. Moreover, as mining
continued, the frequent visits of the miners to the trailer, combined with the unprotected wires,
the improper fuses, and the added strain on the electric conductors coming into the trailer made it
reasonably likely a short circuit or an exposed live wire would result in a miner being burned or
shocked or both. The resulting injuries would have been reasonably serious, if not fatal.
Electrical conduits, connections, and overload protective devices are potentially very
dangerous if they are not installed and maintained as required. In view of the gravity of the
injures that could be expected and the extensiveness of the violative conditions in and
immediately outside the trailer, this was a serious violation.
'

1466

NEGLIGENCE
The conditions that constituted the violation were numerous and visually obvious. The
potential danger to miners from the electrical components in and immediately outside the trailer
meant the company had a high duty of care to make certain all were properly nlstailed and
maintained. The extensive disarray found by Montgomery and the length of time the conditions
apparently existed are indicative of the company's more than moderate failure to meet its duty .

. OTHER CIVIL PENALTY CRITERIA
HISTORY OF PREVIOUS VIOLATIONS
The company has a very small history of previous violations in that during the 2 years
prior to the first violation alleged in these cases, the company's applicable history consisted of
two violations (Tr. 13-17; Gov. Exh. I).

SIZE OF BUSINESS
It is clear that the company is very small. When Patterson was at the mine only two
miners were working (Tr. 26). Further, in proposing penalties for the alleged violations, MSHA
assigned the company no points for its size, which means that according to MSHA' s records,
10,000 annual hours or less are worked at the mine. This is the smatlest category MSHA
recognizes(~ 30 C.F.R. § 100.3(b)).

ABILITY TO CONTINUE IN BUSINESS
The burden is on the operator to come forward with proof that the size of any penalty will
effect adversely its ability to continue in business. The company did not offer any evidence in·
this regard, and I find that the size of the penalties assessed will not effect the company's ability
to mine.

GOOD FAITH IN ATIEMPIING TO ACHIEVE RAPID COMPLIANCE
The parties stipulated that the company exhibited good faith in rapidly abating any
violations that existed (Tr. 66-67).

CML PENALTY ASSESSMENTS

YORK 96-67-M
Citation
4285641

4/8/96

56C.F.R.§

Proposed Pepa}ty

12025

$ 117

There was no violation of the standard.

1467

Assessment

$0

Citation
4285642

4/8/96

56C.F.R.§

Proposed Penalty

14109 (b)(1)

$50

Assessment
$75

The violation was not serious and the company's negligence was modeiate. Given 1h~s~
and the other civil penalty criteria discussed above, I conclude a penalty of$75 is appropriate.
Citation
4286260

4/8/96

56C.f.R,§

Proposed Penalty

14112(b)

$ 111

Assessmeqt
$90

The violation was serious and the company's negligent was moderate. Given the~ aJld
the other civil penalty criteria discussed about, I conclude a penalty of $90 is appropri~~e.
Citation
4285643

419196

56C.F.R.§

Proposed Penalty

12025

$117

Assessment
$90

The violation was serious and the company's negligence was moderate. Given ~ese and
the other civil penalty criteria discussed above, I CQnclude a penalty of $90 is appropriate.
Citation
4285644

~

419196"

56C.F.R.§
4101

Pro,posed Penalty
$50

Assessment
$50

The violation was not serious and the company's negligence was low. Given these and
the other civil penalty criteria discussed above, I conclude a·peDalty of $50 is appropriate.
Citation
4285645

419196

56 C.F.R.§

Proposed PenallY

14112(b)

$111

Assessment
$90

The violation was serious and the company's negligence was moderate. Given these and
the other civil penalty criteria discussed above, I conclude a penalty of $90 is appropriate.
Citation
4285646

419196

~6C.F.R.§

Proposed Penalty

14112(b)

$111

1468

Assessment
$50

The violation was not serious and the company's negligence was low. Given these and
the other civil penaity criteria discussed above, I conclud~ a penalty of $50 is appropriate.
Citation
4285647

4/9/96

56 C.F.R.§

Proposed Penalty

12025

$111

Assessment
$0

There was no violation of the standard.
Citation
4285648

. 419196

56 C.F.R.§

PrQposed Penalty

14107(a)

$81

Assessment
$90

The violation was serious and the company's negligence was moderate. Given these and
the other civil penalty criteria discussed above, I conclude a penalty of $90 is appropriate.
Citation
4285650

4/9/96

56 C.F.R.§

Proposed Penalty

14112(b)

$111

Assessment
$90

The violation was serious and the company's negligence was moderate. Given these and
the other civil penalty criteria discussed above, I conclude a penalty of $90 is appropriate.
Citation
4285651

4/9/96

56 C.F.R.§

Pro.posed Penalty

18002

$50

Assessment
$75

The violation was not serious and the company's negligence was moderate. Given these
and the other civil penalty criteria discussed above, I conclude a penalty of$75 is appropriate.
YORK 96-69-M
Citation
4285649

4/9/96

56 c.P:R.§

Proposed Penalty

14112(b)

$111

There was no violation of the standard.

1469

Assessment
$0 . .

Citation
4285652

4/10/96

56 C.F.R.§

Proposed Penalty

12028

$50

Assessment
$75

The violation was not serious and the company's negligence was moderate. Given these
and the other civil penalty criteria discussed above, I conclude a penalty of $75 is appropriate.
Citation
4285271

4/17196

56 C.F.R.§

Pro,posed Penalty

12030

$157

Assessment
$150

The violation was serious and the company's negligence was more than moderate. Given
these and the other civil penalty discussed above, I conclude that a penalty of $150 is
appropriate.
ORDER
Within 30 days of the date of this decision, the Secretary WILL VACATE
Citations No. 4285641,4285647, and 4285649 and WILL MODIFY Citation Nos. 4285643 and
4285646 by deleting the S&S fmdings. Within the same 30 days, Palumbo Sand & Gravel
WILL PAY civil penalties as follows:
Docket No. YORK 96-67-M- $700
Docket No. YORK 96-69-M - $225
Upon vacation and modification of the citations and payment of the assessed penalties,
these proceedings are DISMISSED.

])~;a'tJ~ 6"(,1/f..David Barbour
Administrative Law Judge
Distribution:
John G. Campbell, Esq., James A. Magenheimer, Esq., Office of the Solicitor,
U.S. Department of Labor, 201 Varick Street, Room 707, New York, NY 10014 (Certified Mail)

Mr. Fortunato Palumbo, Palumbo Sand & Gravel, Route 22, Dover Plains, NY 12522

(Certified Mail)'
dcp

1470

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUOGI;S
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 2 0 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. PENN 94-15
A. C. No. 36-04109-03522 A
Ambrosia Tipple Mine

WAYNE R. STEEN Employed by
AMBROSIA COAL COMPANY,
Respondent

REMAND DECISION
BEFORE: Judge Barbour
In this civil penalty proceeding, the Secretary of Labor (Secretary), on behalf of her Mine
Safety and Health Administration (MSHA), petitioned for the assessment of a civil penalty
against Wayne R. Steen, a foreman of Ambrosia Coal & Construction Company (company). The
petition was filed pursuant to section 11 0(c) of the Federal Mine Safety and Health Act of 1977
(Mine Act or Act) (30 U.S.C. § 820(c)). The Secretary alleged Steen knowingly violated
30 C.F.R. § 77.404(a) by allowing a highJift to be operated with defective brakes.
(Section 77.404(a) in part requires mobile equipment to be maintained msafe operating
condition and equipment in unsafe condition to be removed immediately from service.) Steen
denied the allegations, and the case was heard and decided by Commission Administrative Law
Judge William Fauver.
DECISIONS OF IBE JJJDGE AND THE COMMISSION

Judge Fauver held Steen was a corporate agent under section llO(c) of the Act and Steen
knowingly authorized a violation of the standard. The judge found Steen knew for 5 or 6 days
the higblift's brakes were defective, yet failed to repair them or to remove the highlift from
service (16 FMSHC 2293,2300,2302 (November 1994)). Although the Secretary proposed a
civil penalty of$3,500, the judge assessed Steen $4,000 for the violation (16 FMSHRC at 230306).
.

1471

Judge Fauyer based the penalty upon his findings that Steen exhibited high negligence in
allowing the highlift to be operated without effective brakes (16 FMSHRC at 2304), the violation
was reasonably likely to result in a serious injury .(16 FMSHRC at 2305), and after being cited
for the violation, there was instant action to comply with the standard (16 FMSHRC at 2305).
The judge also believed the amount assessed was "sufficient to deter ... [Steen], and others
similarly situated, from committirig a similar violation in the future" (16 FMSRHC at 2305).
Steen appealed, and although the Commission upheld the judge's findings regarding
Steen's liability under section 110(c) and Steen' s knowing violation of the standard (Ambrosia
Coal & Construction Company (Ambrosia/) 18 FMSHRC 1552, 1563 (September 1996)), it
concluded th~ judge improperly considered the deterrent effect of penalty. (The Cbqunis~ion
stated~ "[d]eferrence is not a separate component used to adjust a penalty amount after the
statutory criteria have been considered" (18 FMSRHC at 1565).) The Commission also held the
judge failed to set forth adequate findings when applying the statutory penalty criteria to Steen.
The Commission remanded the matter for reassessment of the penalty (18 FMSHRC at 1555-56).

On remand, the judge noted he had found the violation to be a significant and substantial
contribution to a mine safety hazard due to high negligence. He also noted Steen' s fmancial
situation justified amortizing the payment of a civil penalty and Steen bad no record of previous
violations. Putting aside the deterrent effect of the penalty with respect to Steen and others
similarly situated,·be concluded the six statutory civil penalty criteria warranted the assessment
of a civil penalty of$3,500 payable in ten consecutive installments of$350 (18 FMSHRC 1874,
1875-76 (October 1996)).
Once again, Steen appealed. He argued the judge did not make necessary factual findings

as to his income or net worth and that the penalty of$3,500 was excessive in light of his
financial si~tion. In Steen's view, a total penalty of $575 was appropriate.
The Commission affirmed Judge Fauver' s consideration of four of the six statutory civil
penalty criteria (Ambrosia Coal & Construction Company (Ambrosia II) I9 FMSHRC 819,823824 (May 1997)). However, it concluded the judge's consideration of the criteria of "ability to
continue in business" and "size" were incomplete, and it remanded the matter for further
application of the criteria and reassessment (19 FMSHRC at 824-825).

POST REMAND PROCEEDINGS
On remand, the judge ordered the parties to confer to determine if they could stipulate to
a statement of Steen's current income, net worth, and financial obligations, and to include in the
stipulation copies of Steen's latest federal income tax return, his W-2 Form and a balance sheet.
The judge also requested a statement whether or not Steen had the financial ability to pay a civil
penalty of$3,500 in 10 monthly installments of$350 and continue to meet other fmancial

1472

obligations. If Steen could not, the judge requested the parties to stipulate the civil penalty and
the amount of the monthly installments he could pay (Order On Remand (May 9, 1997) (as
modified May 30, 1997)).
·
In response, the parties submitted a statement of the income of Steen and his wife (Stip.,
Exh. A), a statement of the monthly expenses of the Steen family (IA, Exh. B) (excepting from
the agreement the claim of$400 in monthly medical and dental expenses), a statement of the
assets of Steen and his wife (ld,., Exh. C), a copy of the 1996 joint U. S. Individual Income Tax
Return of Steen and his wife (ML, Exh. D), and a copy of the 1996 W-2 forms of Steen and his
wife (llL Exhs. E and F). Steen submitted a separate statement of dental expenses (Statement
Concerning Dental Expenditures (June 19, 1997)).
Judge Fauver offered the partj.es an opportunity to request a hearing on the remanded
issues. If they did not want one, he stated he would consider the information submitted as
evidentiary and decide the issues on the record (Order (June 25, 1997)). The Judge also stated
"Since ... Steen's tax returns are jointly filed, his income and financial obligations will be
considered on the basis of household and financial obligations" ad., n.1 ).
The parties declined a hearing and submitted briefs. On July 25, 1997, the matter was
reassigned to me.

ASSESSMENT OF A CIVIL PENALTY
THE UNDERLYING PRINCIPLES
I have a narrow duty on remand- to assess a civil penalty based upon Judge Fauver's
prior findings regarding four of the six civil penalty criteria set forth in section 11 O(i) of the Act
(30 U.S.C. § 820(i)) and my findings regarding the remaining two criteria, "ability to continue in
business" and "size." In assessing the penalty, I am instructed by the Commission to make
specific findings and be guided by principles set forth in Sunny Ridge Mining Co. (19 FMSHRC
254 (February 1997) (~Ambrosia II, 19 FMSHRC at 823-824).
In Sunny Ridge, which was decided after Judge Fauver's October 1996 decision, the
Commission held that when assessing a civil penalty in a section 11 0(c) case, a judge must make
findings on the penalty criteria as they apply to the individual who has been found liable and
must be mindful of facts such as "the individual's income and family support responsibilities, the
appropriateness of a penalty in light of t~e individual's job responsibilities, and an individual's
ability to pay" (19 FMSHRC at 272).
When applying these principles to the criterion of "ability to continue in business," the
Commission stated the relevant inquiry is whether the penalty "will effect the individual's ability
to meet his [or her] fmancial obligations" (Ambrosia II, 19 FMSRHC at 824). With respect to
the criterion of "size," the Commission directed an inquiry into "whether the penalty is
appropriate in light of the individual's income and net worth" (ldJ.

1473

Because section llO(c) places liability upon individual corporate directors, officers, or
agents and because the Commission has emphasized the effect of the penalty upon the individual
who has been found liable under section 11 0(c), Steen argues it was an error for Judge Fauver to
state that he would consider Steen's financial information on the basis of household income and
financial obligations. Steen also maintains it would be an error for me to consider any part of
Mrs. Steen's income in assessing the penalty. Rather, I should consider "only ... Steen's income,
net worth and financial obligations and explain how they affect the penalty" (Reply Brief
Following Commission's Second Remand 3 (emphasis added)). In other words, Steen would
have me exclude from consideration all income earned by his wife and a percentage of household
liabilities equal to the percentage of her contribution to household income.
I decline to do so. Implicit in Judge Fauver's decision to consider Steen's income and
financial obligations on the basis of household income and financial obligations is the fact the
Steens do not live economically discrete lives. Like most domestic partners, they function as an
economic unit. They commingle economic resources and jointly assume economic
responsibilities. They file a joint federal income tax return ( Stip., Exh. D). They jointly hold
real property (Stip., Exh. C). Personal property, such as automobiles and household property, is
titled jointly (Id.). They have a joint personal checking account (~ Statement Concerning
Dental Expenses). Moreover, as may be inferred from the list of expenses, they are equally liable
for most, if not all, of their debts (Stip., Exh. B). I must make findings based on fiscal reality not
its artificial segmentation. Therefore, I will consider their joint income as Steen's income, their
joint property as his property, and their joint liabilities as his liabilities.

ABILITY TO CONTINUE IN BUSINESS
The parties stipulated to monthly family expenses of$2,715 (Exh. B-1) ($3,115 less
medical and dental expenses of $400) and Steen submitted documentation to substantiate the
dental balance owed or to be incurred (Stipulation 2; Statement Concerning Dental Expenses).
The dental statement details expenses paid from August 12,1996 through June 16, 1997 ($2,276).
It also indicates two additional appointments scheduled for Mrs. Steen in late June 1997, and
August 1997, for an examination of work already performed. The statement declares as of June
19, 1997 "(a]ll of ... [Mrs. Steen's] major work appears to have been completed." The statement
does not indicate an existing balance is due.
With no major dental work anticipated, and with no existing balance, it appears that as of
June 19, Steen and Mrs. Steen have paid most of her past due dental bills, and her future dental
expenses will be for forthcoming appointments and routine dental work. Recognizing
unexpected medical and dental expenses can arise and estimating future expenses is to some
extent an exercise in imprecision, I conclude allocating $250 a month to medical and dental
expenses is reasonable.

1474

Therefore, based upon the parties' stipulations and Steen's statement concerning dental
expenses, I find Steen has monthly family expenses of$2,965 ($3,115 less $400 plus $250).
To meet these expenses, Steen has available to him monthly family incoin~of$3,156
(Stip., Exh. A). This leaves a balance of $191 per month; Presently Steen is meeting his
financial obligations with money to spare.

. SIZE
The parties stipulated that Steen's annual net income is $20,300 and his combined annual
net income is $37,873 (Stip., EXh. A). Steen's net income is well above the "poverty level" for a
family of three ($12,517 in 1996 according to the U.S. Department of Commerce
(http://www.census.gov/hhes/poverty/ threshld/thresh96.html)). Moreover, Steen has significant
equity in his home ($43,610) and he has automobiles and other personal property worth $5,500
(Stip., Exh. C). In light of his income and net worth, I conclude Steen is well able to pay a
penalty of at least moderate size, provided the penalty is amortized.

THE PENALTY
Judge Fauver concluded that Steen exhibited·high negligence in authorizing the violation
of section 77.404(a). He also found the violation was serious, and that the criteria of good faith
abatement did not apply (18 FMSHRC at 1875). These findings were affinned by the
Commission (Ambrosia II, 19 FMSHRC at 823-824). Judge Fauver also found, and the
Commission affirmed, Steen's employer, Ambrosia, had an average history of previous
violations and he noted there was no indication Steen previously violated section 11 0(c) of the
Act (18 F!vfSHRC at 1875; Ambrosia II, 19 FMSRHC at 823-824).
Weighing these factors, along with Steen's income, family support responsibilities, and
net worth, I conclude that a total penalty of $2,000 is wammted and that it should be payed in
installments for 12 consecutive months. I recognize the penalty and pa~ents will not be
inconsequential for Steen, given his obligations and income, but ·then neither was his knowing
and egregious violation of section 77.404(a).

It bears repeating the highlift was operating with brakes that could not hold .o n a 30 to
40 degree ramp, through a tipple yard with unobstructed access to a nearby highway, and with an
operator who did not have a seatbelt ( 16 FMSHRC at 2299). Steen had full knowledge of all
these conditions, yet he allowed the highlift of operate for at least 5 and possibly 6 working days
(16 FMSHRC at 2302), endangering himself (Steen actually operated the higblift while it had
defective brakes Qil)), the highlift operator, other miners, and the public.
It also bears repeating, as Judge Fauver pointed out originally, that section llO(c) is
included in the Act to deter this kind of violation.

1475

TWO LESSONS

Two cautionary lessons attend this case. First, a foreman of a corporate operator who
knows of existing violations of the Mine Act or its standards m.us1 promptly remedy them. A
foreman who fails to act does so at his or her fiscal peril.
Second, through Sunny Ridge, the Secretary is on gotice CQncemins the type of
information the Commission deems necessary to establish the •abUity tQ contiQue bll$iness"
and •size penalty• criteria. The burden of proof is OQ the S""~· fliJYTe tO pffer tb.e ~videJtce
through stipulation or documentation prior to the closing oflhe ~videJIU¥>' ~r4 will result in a
judge being unable to consider the criteria an~ most likely, in a mu~h Jow~ civil pen8Ity. This
will necessitate more intensive prehearing preparations by the Secretary, since, in all probability,
judges will not look favorably on requests to submit the information post hearing.

m

Steen shall pay a civil penalty of$2,000. Payment shall be made in 11 consecutive
installments of$166.66 each and the l:Z.!h jnsmJJment of$166.74. Payments will begin on
November 1, 1997, and continue on the first day of each succeeding month until the full amount
has been paid. Upon full payment of the penalty, this proceeding is DISMISSED.

J#;t¥t~~
PAvid f. ijMl?Pur·

A4IJlhijst,mtive Law Judge
Distribution:
· T. J. O'Malley, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Frank G. Verterano, Esq., Verterano & Manolis, 2622 Wilmington Road, New Castle, PA
16105-1530 (Certified Mail)
William P. Getty, Esq., Meyer, Unkovic &Scott, 1300 Oliver Building, Pittsburgh, PA 15222
(Certified Mail)

1476

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.

1244 SPEER BOULEYARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

AUG 2 6 1997
CIVIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. WEST 96-79
A.C. No. 05-02820-03774

V.

Docket No. WEST 96-125
A.C. No. 05-02820-03778
Golden Eagle Mine

BASIN RESOURCES, INC.,
Respondent

DECISION

Appearances:

Edward B. Ritchie, Conference and Litigation Representative, Mine Safety
and Health Administration, U.S. Department of Labor, Vincennes,
Indiana, and Edward Falkowski, Esq., Office of the Solicitor, U. S . .
Department of Labor, Denver, Colorado, for Petitioner;
Andrew Volin, Esq., Sherman & Howard, Denver, Colorado,
for Respondent.

Before:

Judge Manning

These cases are before me on petitions for assessment of penalties filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Basin
Resources, Inc. ("Basin Resources"), pursuant to sections I 05 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815 and 820. The petitions allege 38 violations of
the Secretary's safety regulations. A hearing was held in Denver, Colorado. The parties
presented testimony and documentary evidence, and Basin Resources filed a post-hearing brief.
.
.
~

The Secretary filed a motion to amend the petitions for penalty to add Entech, Inc., and
Montana Power Company as respondents in these and other Basin Resources cases. For the
reasons set forth in Basin Resources, Inc., 19 FMSHRC 699, 699-704 (April 1997), the
Secretary's motion is denied.

1477

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Citation No. 4057626
On September 11, 1995, MSHA Inspector Melvin Shiveley issued a citation alleging a
violation of30 C.F.R. § 75.220(a)(l). In the citation, the inspector alleged that Basin Resources
was not complying with its roof control plan. The citation states that an amendment to the plan
dated June 21, 1995, requires the use of truss bolts in certain areas of the entry No. 3 of the 4 left
section. The citation alleges that truss bolts had not been installed in the cited area and that
vertical yield control supports ("VYC") had been installed as supplemental support. The
inspector determined that the violation was not of a significant and substantial ("S&S") nature
and was caused by Basin Resources' moderate negligence. The Secretary proposes a penalty of
$1,019 for the alleged violation.
Inspector Shiveley testified that Basin Resources sought an amendment to its roof control
plan so that it could use truss bolts in lieu of cribs for supplemental roof support in a test area.
(fr. 14-18; Ex. R-B). The amendment was approved by MSHA on June 21, 1995. !d. The
amendment applies only to a specified section of the No.3 entry in the 4left section (the "test
area"). Inspector Shiveley testified that truss bolting was not present when he inspected the test
area on September 11 . (Tr. 19-20). Instead, supplemental support was provided by VYC
supports. VYCs are a type of supplemental roof suppoi:t that is approved for use at the Golden
Eagle Mine. (Tr. 20). The No. 3 entry was a travelway to the bleeders and the roof was under
pressure because the longwall machine had retreated outby. Inspector Shiveley testified that roof
bolts had been installed in the cited ar~. (Tr. 52). He also stated that if the operator had not
amended its roof control plan to establish the test area, the VYC supports would not have
violated the plan. (Tr. 53). It was his position that because the operator had amended the plan to
use truss bolts, it could no longer use VYCs or other cribbing material in the test area.
Kay Hallows, the former safety director for the Golden Eagle Mine, testified that it was
his understanding that the mine could continue to use any approved supplemental support in the
test area and that the plan amendment also authorized the use of truss bolts. (Tr. 141-42). He did·
not believe that the mine was required to use truss bolts in the test area. Id He testified that
MSHA had not advised mine officials of its more restrictive interpretation of the plan
amendment prior to the issuance of the citation. It appears that truss bolts were never used i~ the
test area. (Tr. 151 ).
Basin Resources argues that the citation should be vacated because the plan was amended
to allow the use of truss bolts as an alternative to cribs or other types of supplemental supports.
· Basin Resources states that the Secretary's restrictive interpretation of the plan amendment is
unreasonable and that Basin Resources was not given notice of this interpretation. Energy West
Mining Co., 17 FMSHRC 1313, 1317 (August 1995). It argues that the citation should be
vacated.

1478

Basin Resources requested pennission to use truss bolts "in lieu of' cribs for
supplemental support in the test area. (Ex. R·B pp. 2 and 6). The diagram accompanying the
request states that a ''truss system will be installed." Id at 3. The term "in lieu of' means
"instead of' or "in the place of." Webster's New Collegiate Dictionary 657 (1979). Thus, given
the language in Basin Resources' request to amend the roof control plan, I find that the
Secretary's interpretation of the amendment is reasonable. The request clearly states that Basin
resources will install truss bolts instead ofcribs. The request does not indicate that the amended
plan would permit Basin Resources to install truss bolts in the test area if it subsequently decided
to do so. I also fmd that ~asin Resources was provided sufficient notice of the Secretary's
interpretation because the Secretary merely relied upon the language contained in Basin
Resources' request. Accordingly, the citation is affirmed.
I find that the violation was not serious because supplemental support had been installed.
I also find that Basin Resources' negligence was less than moderate. Although it amended the
plan to use truss bolts, it installed an approved supplemental roof support system in the test area.
A penalty of $100 is appropriate.

B. Citation No. 4057638
On September 18, 1995, Inspector Shiveley issued a citation alleging a violation of 30
C.F.R. § 75.364(a)(l). In the citation, the inspector alleged that a weekly examination for
hazardous conditions was not conducted for the week of 9-10-95 through 9-16-95 in the 4 left
section, No. 3 entry. The citation states that conditions in the entry prevented personnel from
entering the area to conduct the examination. The citation also states that a monitoring system
was in the area to measure methane and carbon monoxide levels in the area. The inspector
determined that the violation· was not S&S and was caused by Basin Resources' moderate
negligence. The Secretary proposes a penalty of $1,019 for the alleged violation. The safety
standard provides, in part, that a certified person shall examine unsealed worked.aut areas to the
area of deepest penetration at least once every seven days.
Inspector Shiveley examined Basin Resources' record books and determined that the
cited area had not been examined. (Tr. 28, 33). He testified that the examiner did not examine
an "area that was inby crosscut 44 into and throughout the bleeder system on the backside of
these longwall panels." (Tr. 29). The No. 3 entry in the 4 left section was a bleeder entry. ld
He further testified that the examination was not performed because he previously issued an
imminent danger order in the area due to unstable roof conditions. (Tr. 30; Ex. R-D). The order
prevented persons from entering the No. 3 entry. (Tr. 31-32). The inspector further stated that
the methane and carbon monoxide monitoring system was in use on the day he issued the
citation. (Tr. 35'-36). The monitoring system does not indicate oxygen levels, air currents or
other hazards. /d Given the history of roof problems at the mine, he believed that Basin
Resources should have taken greater measures to control the roof in the entry. (Tr. 39).
The basic facts are not in dispute. Basin Resources argues that the imminent danger order
prohibited miners from entering the No. 3 entry to conduct the required examination.

1479

Accordingly, it maintains that the citation must be vacated. It contends that safety ~tandards
must be interpreted "so as to harmonize with and further and not to conflict with the obJective"
of the Mine Act Secretary ofLabor v. Western-Fuels Utah, 900 F.2d 318, 320 (D.C. Cir. 1990)
(citation omitted). Basin Resources states that the requirements of section 75.364(a)(l) should
have been suspended during the pendency of the section 107(a) order.
I reject Basin Resources' argwnents and a.ffinn the citation. First, the Commission and
the courts have uniformly held that the Mine Act is a strict liability statute. Self, e.. g. Asarco v.
FMSHRC, 868 F.2d 1195 (lOth Cir. 1989). "(W]hena violation ofama.q.~tory safety standard
occurs in a mine, the operator is automatically assessed a civil penalty." ld at 1197. The
negligence of the operator and the degree of the hazard created by the violation are taken into
consideration in assessing a civil penalty under section 11 O(i), 30 U.S.C. § 820(i). Second, the
imminent danger order was issued due to the poor condition of the roof in the entry. I credit the
testimony of Inspector Shiveley that Basin Resources could have done more to support the roof
in the area In addition, Basin Resources did not provide for an alternate means to reach the area
that was required to be examined. Thus7 this case does QOt present ~ ~ituation in which a section
of a mine is inaccessible due to circumstances beyond the cOntrol of the mine operator.
I find that the violation was not serious because the imminent danger order prevented
anyone from entering the area and being exposed to any hazards. In addition, the monitoring
system allowed Basin Resources to determine whether dangerous quantities of methane were
accumulating in the bleeders. I also find that Basin Resources' negligence was less than
moderate. Its examiner was unable to enter the cited area and the withdrawal order prevented it
from making the examination. A penalty of $100 is appropriate.
C. Citation No. 4057610
On September 20, 1995, Inspector Shiveley issued a citation alleging a violation of 30
C.F,R. § 77. 1605(k). In the citation, the inspector alleged that·a berm or guard was not provided
on the outer bank of the elevated roadway between the raw coal pile and the old coal storage bin,
for a distance of 60 feet. The citation states that equipment used the roadway during th~ ·working
shfft and that a 20-foot deep ditch was along the edge of the roadway. The inspector d~termined
that the violation was not S&S and was caused by Basin Resources' moderate neglig~nce. The
Secretary proposes a penalty of $1 ,019 for the alleged violation. The safety standar~ provides
that berms or guards shall be provided on the outer banks of elevated roadways.
Inspector Shiveley testified that it appeared that Basin Resources had dug a big trench
beside the roadway that increased the drop-off along the roadway·. (Tr. 42). He s~tep that the
drop-off was nearly vertical. (Tr. 43). Inspector Shiveley determined that the violation was not
S&S because, at the time he issued the citation, the roadway was not heavily used. {Tr. 46). He
believed that there had once been a berm in the cited area but that it.had been removed to
·
perform work in the area. (Tr. 46-48, 56).

1480

Basin Resources contends that there ruid never been a berm in the cited area. Mr.
Hallows testified that no berm was ever in the cited area since he joined Basin Resources in April
1994. (Tr. 144). He testified that no citation had ever been issued for the condition. He stated
that the "ditch" mentioned by the inspector had been present for some time but that he did not
know if the ditch had been recently cleaned out or whether there had been "fresh digging" along
the roadway. (Tr. 154-55).
I fmd that the Secretary established a violation. There is no dispute that there was a dropoff on the outer back of the roadway. I also fmd that the violation was not serious, based on the
inspector's testimony. Basin Resources maintains that its negligence was low because the
roadway had never had a berm at the cited location. Ifl asswne that a_beiDl was never present, I
am still faced with the fact the Inspector Shiveley testified that the area below the roadway had
been dug deeper. Basin Resources: argwnent that it was faced with inconsistent enforcement
fails if, in fact, a deeper ditch created a more serious drop-off. I credit Mr. Hallows' testimony
that there was never a berm present, but I also fmd that digging in the area below the roadway
created a more hazardous condition. I fmd that Basin Resources' negligence was slightly less
than moderate based on the testimony of Mr. Hallows. A penalty of $400 is appropriate.
D. Citation No. 4057634
..

On September 12, 1995, Inspector Shiveley issued a citation alleging a violation of 30
C.F.R. § 75.1101-9(a)(l). In the citation, the inspector alleged that the nodle on the fire
suppression system on a shuttle car in the 5 left section was not protected against the entrance of
moisture, dust, or dirt. The citation states that the protective cover was missing. The inspector
determined that the violation was not S&S and was caused by Basin Resources' moderate
negligence. The Secretary proposes a penalty of $1 ,019 for the alleg~d violation. The safety
standard provides that dry chemical fire extinguishing systems on undergroood equipment shall
be protected against the entrance of moisture, dust, or dirt.
Basin Resources does not dispute that the dry chemical fire extinguisher nozzle on the
shuttle car was not equipped with a protective cover. Rather, it maintains that the shuttle car was
being repaired and that the cited condition would have been corrected before the shuttle car was
placed into service. Inspector Shiveley testified that the shuttle car was parked in a crosscut on
the 5 left section, just off the entry, in an intake air course. (Tr. 59-60). The 5 left section was an
active working section. He testified that the shuttle car was not tagged out and there was no
other indication that it was not in service. ld He did not see any mechanics working on the
shuttle car. (Tr. 61 ). It did not appear to Inspector Shiveley that the-shuttle car was under repair
at the time of his inspection. (Tr. 69, 72). He also stated that even if the shuttle car were being
repaired for a mechanical problem unrelated to the fire suppression system, he would have still
issued the citation. (Tr. 61 ). He stated that fire suppression devices are needed when repairs are
being made on equipment because ofthe risk of a fire. (Tr. 61-62). He stated that the nozzle was
clean. (Tr. 71).

1481

Mr. Hallows testified that the cited shuttle car was torn down for repair and_was not in
operating condition. (Tr. 146; Ex. R-G). He said-that it should have been apparent that the
shuttle car was not operable. (Tr. 147). He believes that the mechanic would have replaced the
protective cover before the shuttle car was put back into service; ld
I find that the Secretary established a violation. The safety standard, as cited here,-. i~
designed to protect the nozzle from the harmful effects of moisture, dust, and dirt.. Dust and dirt
may enter the nozzle when repairs are being made on the shuttle car. (Tr·, 61). A fire-~ould break
out while repairs are being made. Thus, the protective purposes of the standard apply even when
the equipment is out ofservice. In contrast, mobile equipment does not ·need to have operat~ve
brakes when it is under repair until it is moved to be placed into service. Thus, even if the ·s huttle
was under repair, as asserted by Basin Resources, the requirements of the standard:applie<;i: · · ·-·
I find that the violation was not serious, based on the testimony of Inspector Shiveley. I
find that Basin Resources' negligence was somewhat less than moderate becaUse the equ.ipment
was not in use. A penalty of$100 is appropriate.
. .. ·.. ::· ·_:.·:.
E. Other Citations
Basin Resources also contested 34 other section 104(a) c.itations in these -cases. A_t the
hearing, Basin Resources agreed that it would not contest the fact of violation- iri.these .€ita~~ons
or the other determinations made by the inspector in the citations. (Tr: 5) .. jt only. ~ontests_the
amount of the penalty proposed by the Secretary for each of these citations.- lt c.ontend.s that the
Secretary's penalties are too high. Based on the description of the violations in . the~itatiops~· the
inspectors' determinations with respect to gravity and negligence, and the civil-penalty-criteria .
discussed below, I assess the penalties set forth in section III of this decision.
. . ,·
. .;

II. APPROPRIATE CIVIL PENALTIES
Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. I find that Basin Resources was issued 918 citati()ns and orders in tht! ·
24 months preceding September 25, 1995, and that Basin Resourc.es paid penalties for 736 of
these citations and orders during the same period. (Ex. P-1 ). I also find that Basin Resources
was a rather large mine operator with 23,505,829 tons of production in 1994. (S.tipulation). ·The
Golden Eagle Mine shut down in December 1995 and is no longer producing coal.. Basin
Resources has been unable to sell the mine. Its unaudited balance sheet for April 30,' 1~96,
shows that shareholders' equity was minus about 23 million dollars and its income s~ate~~nt for
the year ending ~pril 30, 1995, shows a net loss of $325,000. 18 FMSHRC 1846, 1847 ·(Oct~ber
1996). I have taken Basin Resources' financial condition into consideration and find that the civH
penalty assessed in this decision would not have affected its ability to continue in busin-ess. Basin
Resources demonstrated good faith in abating all of the violations. (Stipulatio_n). Based on the
penalty criteria, I find that the penalties set forth below are appropriate for the violations.

1482
..
~ ~··

III. ORDER
Based on the criteria in section llO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation No.

30C.F.R. §

Penalty

75.202(a)
75.400
75.402
75.202(a)
75.202(a)
75.400
75.512
75.400
75.1107-9(a)(l)
75.1725(a)
77.1104
75.400
75.402
75.1725(a)
75.1403-IO(i)
75.202(a)
75.503
75.904
75.11 07-l(a)(3)(ii)

$1,200.00
400.00
400.00
1,200.00
1,200.00
400.00
400.00
400.00
100.00
200.00
400.00
400.00
400.00
1,200.00
200.00
400.00
200.00
200.00
200.00

75.400
75.1100-3
75.402
75.220(a)(l)
75.1403-IO(i)
75.370(a)(1)
75.400
75.380(d)(l)
75.220(a)(l)
75.370(a)(l)
75.370(a)(l)
75.380(d)(1)
75.400

1,200.00
400.00
400.00
400.00
1,200.00
200.00
400.00
1,200.00
100.00
200.00
200.00
200.00
400.00

WEST96-79
4058071
4058072
4058073
4057692
4057630
4057631
4057632
4057633
4057634
4057635
4057603
4057604
4057605
4057606
4057607
4057608
4057609
4057614
4057615
WEST 96-125
4058067
4058068
4058069
4058070
4058079
4058080
4057623
40576t4
4057626
4057627
4057628
4057636
4057637

1483

Citation No.

30 C.F.R. §

Penalty

4057601
4057602
4057638
4057639
4057640
4057610

77.1104
77.205(b)
75.364(a)(l)
77.205(b)
77.205(b)
77.1605(k)

400.00
1,200.00
100.00
200.00
200.00
400.00

Total Penalty

$18,500.00

Accordingly, the Secretary's motion to amend the petitions for assessment of penalty is
DENIED, the citations listed above are hereby AFFIRMED or MODIFIED as set forth above,
and Basin Resources, Inc., is ORDERED TO PAY the Secretary ofLaborthe sum of
$18,500.00 within 40 days of the date of this decision.

Richard W. Manning
Administrative Law Judge

Distribution:

Edward B. Ritchie, Conference and Litigation Representative, Mine Safety and Health
Administration, P.O. Box 418, Vincennes, IN 47591-0418 (Certified Mail)
Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716 (Certified Mail)
Andrew Volin, Esq., SHERMAN & HOWARD, L.L.C., 633 17th Street, Suite 3000, Denver, CO
80202 (Certified Mail)

RWM

1484

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

AUG 2 9 1997
SECRETARY OF LABOR.
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 97-23
A.C. No. 15-16020-03521

v.
COSTAIN COAL INCORPORATED,
Respondent

Docket No. KENT 97-73
A.C. No. 15-16020-03523
Smith Underground No. 1 Mine

DECISION
Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner;
Charles E. Lowther, Esq., Mitchell, Joiner, Hardesty & Lowther, Madisonville,
Kentucky, for Respondent.
Before:

Judge Hodgdon

These consolidated cases are before me on Petitions for Assessment of Civil Penalty filed
by the Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA),
against Costain Coal Incorporated, pursuant to section 105 of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815. The petitions allege two violations of the Secretary's mandatory
health and safety standards and seek penalties of.$~ ,500.00. For the reasons set forth below, I
affirm the citation and order and assess penalties of$1,500.00.
..

A hearing was held on June 3, 1997, in Evansville, Indiana. The parties also submitted
post-hearing briefs in the cases.

Back&round
Costain Coal's Smith Underground No. 1 mine is located in Webster County, Kentucky.
On July 23, 1996, MSHA Inspector Robert Sims was conducting a quarterly inspection at the
mine when he observed that only the front tips of the arms of the automatic temporacy roof
support (ATRS) system on the twin-boom roof bolter were in contact with the mine roof.
Consequently, he issued Citation No. 4067761, alleging a violation of section 75.220(a)(l) of the
regulations, 30 C.F.R. § 75.220(a)(l), because he: "Observed 2 roof bolt operators operating the
Lee Norris Double Boom Bolter in the number 1 entry of the South West Panel 001 unit and the
rear tips of both ATR.S' s were not pressurized against the mine roof. They were in the process of

1485

installing roof bolts on their nonnal bolt spacing and had not reduced the support patterns to a 2'
by 4' pattern as required on page 8 of the Roof Control Plan." (Govt. Ex. 5.)
On July 25, .he witness~d a similar violation in the No.7 entry and issued Order No.
4067768. It states: "Observ~d 2 roof bolt operators operating the Lee Norris Double Boom
bolter in the number 7 entry intersection on 002 unit in the South West Panel. The ATRS would
'n ot pressurize against the mine roof and the bolt spacing was not reduced to a 2 x 4 pattern as
required on page 8 of the approved Roof Control Plan." (Govt. Ex. 7.)
Findines of Fact and Conclusions of Law
Section 75.220(.a)(l) provides, as pertinent to this case: "Each mine operator shall
develo!) and follow a roof control plan, approved by the District Manager, that'is suitable to the
prevailing geological conditions, and the mining system to be used at the mine." The
Respondent's roof control plan requires that: "When the ATRS will not be set due to heig4t .
limitations, bolts will be installed on a two by four pattern or the roof will be supported by r.oof
bolts spaced in such a manner which will pennit the operator to work under pemianent1y
supported roof at all times." (Govt. Ex. 2, at 13.)
·
Costain concedes that in both instances the company violated section 75.220(a)(l) and
that the violations were "significant and substantial." (Tr. 11.) Therefore, the only is~~e to be
determined is whether the violations resulted from the Respondent's "unwarrantable fa~ lure" to
comply with the regulation. I conclu~e that they did.
The Secretary argues that the following factors support a fmding that the company
unwarrantably failed to follow section 75.220(a)(1). Prior to the violations, the co~pany Qad
been put on notice that it had to follow its roof control plan when the ATRS did not set against·
the roof. The Company did not train its roof bolters how to recognize when the roof control plan
required a two by four bolting pattern until after the July 25, 199(), violation. The violations
should have been obvious to the roof bolters. Finally, the mine had a significant roof fall
problem.
The Respondent asserts that it reacted immediately .to correct the problem. After the · . .
company was cited for a violation in March 1996, it began efforts to modify the equipment. so
that the ATRS could be set when the roof was higher than ten feet. Further, Costain contends
that it is difficult to tell by looking at the roof whether bolts are in a two by four pattern. Finally,
the company argues that it did not violate the regulation intentionally.
The Commission has held that unwarrantable failure is -aggravated conduct cons~ituting ·
more than ordhiary negligence by a mine operator in relation to a violation of the Act. Emery
.MiniJ?g Corp., 9 FMSHRC 1997,2004 (December 198.7); Youghiogheny &.Ohio <;oaf Co._,
9 FMSHRC 2007, 2010 (December 1987). "Unwarrantable failure is characterized by such ·
conduct as 'reckless disregard,' 'intentional misconduct,' 'indifference'.or a 'serious·Iack of

1486

reasonable care.' [Emery] at 2003-04; Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189,
193-94 (February 1991)." Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994).
With regard to determining whether a violation has resulted from an operator's
''unwarrantable failure," the Commission has stated:
We examine various factors in determining whether a violation is unwarrantable,
including the extent of the violative condition, the length of time that it has
existed, whether the violation is obvious or poses a high degree of danger,
whether the operator has been placed on notice that greater efforts are necessary
for compliance, and the operator' s compliance effortS made prior to the issuance
ofthe citation or order. Enlow Fork Mining Co., 19 FMSHRC 5, 11-12 (January
1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (February 1994);
Peabody Coal Co., 14 FMSHRC 1258, 1261 (August 1992); Quinland Coals,
Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp. , 6 FMSHRC 1596,
1603 (July 1984). Repeated similar violations may be relevant to an
unwarrantable failure determination to the extent that they serve to put an operator
on notice that greater efforts are necessary for compliance with a standard.
Peabody, 14 FMSHRC at 1263-64.
A max Coal Co., 19 FMSHRC 846, 851 (May 1997).

In this case, several of these factors lead to a conclusion of "unwarrantable failure." The
company had clearly been put on notice that greater efforts were necessary for compliance.
MSHA Field Office Supervisor Ted Smith first noticed the problem of the ATRS not reaching
the roof in November 1995, pointed the problem out to the mine foreman while in the mine, and
further discussed corrective measures with the foreman and the superintendent when they got
outside. On March 25, 1996, Smith and Inspector Sims were at the mine and issued a citation for
failing to comply with the roof control plan by not bolting on a two by four pattern when the
ATRS would not set against the roof. (Govt. Ex. 3.) The very next day, Sims issued an order for
the same problem.1 (Govt. Ex. 4.)
While the company did take some action as a result of the March violations, it was mainly
in the area of attempting to modifY the equipment to operate in areas with a higher roof. Little or
no guidance was given to roof bolters in determining when the ATRS was set against the roof or
what a two by four bolting pattern looked like. According to the r.oofbolters who testified, it was
not until after the July 25 order that they were given direction in what set against the roof meant
and how to recognize it.

1

Though the problem was the same, Sims cited a different regulation, 30 C.F .R.
§ 75.202(b), because he did not want to be accused of"double dipping." (Tr. 26.)

1487

Although the Respondent implies that the contrary is true, the violations were obvious.
Inspectors Smith and Sims spotted the violations just by looking at the ATRS and whether it was·
pressed against the roof. The company's roof bolters could have made similar observations by
looking at each other's ATRS, but they apparently were not instructed to do so. The inspectors
were also able to tell that a two by four bolting pattern was not being used by observation, even
though they verified it by measurement just to make sure. The obvious difference in the two
patterns is graphically demonstrated by pictures furnished by the company which show that the
bolt plates are almost touching one another in a two by four pattern and are spread far apart in the
normal four and one-half foot advance pattern. (Resp. Ex. D, pictures 1- 3.)
Finally, the violations posed a high degree of danger. The mine had experienced
unfavorable roof conditions. It had sustained 74 roof falls in 1996, one of which was a 350 foot
fall which had occurred within 400 feet of the No. I entry. In addition, the mine map projection
indicated a possible washout, 2 and a linear line3 across six of the ten entries being worked on at
the time, both of which indicate that bad roof may be encountered. (Govt. Ex. 6.) Furthermore,
the preshift examination on July 22 had found water coming into the No.7 entry. As a result, the
intersections and crosscuts had to be collared before mining could be done. Lastly, if this were
not enough, when the ATRS is not properly set against the roof, the drill vibrates and shakes
thereby making it more likely that pieces of the roof will come down.
The danger with the ATRS not setting against the roof is that the bolters are working
under unsupported roof. That is why the roof control plan calls for a two by four pattern when
the ATRS does not set. By drilling only two feet out, the bolter can remain under supported roof.
The danger of working under unsupported roof is so great by itself, that the Commission has in
the past relied
upon the high degree of danger posed by roof control plan violations as a basis for
finding unwarrantable failure. See Cyprus Plateau Mining Corp., 16 FMSHRC
I 6 J0, 161 6 (August 1994) (allowing work under unsupported roof was result of
unwarrantable failure where installation of temporary roof supports, as required
under roof control plan, was "necessary for safe mining practice"); Quinland
Coals, Inc., 10 FMSHRC 705, 709 (June I 988) (finding unwarrantable failure
where "roof conditions were highly dangerous"); Youghiogheny & Ohio Coal Co.,
9 FMSHRC 2007, 2011 (December 1987) (temporary roof support violation
resulted from unwarrantable failure where prior history of roof falls "placed

2

A "washout" is a "channel cut into or through a coal seam at some during or after the
formation of the seam, generally filled with sandstone--or more rarely with shale-similar to that
of the roof." Bureau of Mines, U.S. Department of the Interior, A Dictionary of Mining, Mineral,
and Related Terms I217 (1968).
,

3

A "linear line" is drawn based on satellite photographs of heat emanations from the
earth which may indicate slips, faults and possible bad top areas underground. (Tr. 36-37.)

1488

[operator] on notice that heightened scrutiny to assure compliance with its roof
control plan was vital"). See also Lion Mining Co., 18 FMSHRC 695, 700-02
(May 1996) (vacating judge's finding that roof control plan violation was not
unwarrantable).
Faith Coal Co., Docket No. SE 91-97, etc., slip op. at 12 (August 6, 1997).
While it is evident that the Respondent did not deliberately violate its roof control plan,
the violations were obvious, the company had been placed on notice that greater efforts were
necessary for compliance, its response to that notice was inadequate, and the danger was great.
Accordingly, I conclude that the degree of negligence involved in these violations was "high"
and that they resulted from Costain's unwarrantable failure to follow its roof control plan and the
regulations.

Civil Penalty Assessment
The Secretary has proposed civil penalties of$1,500.00 for these two violations.
However, it is the judge's independent responsibility to determine the appropriate amount of
penalty ·in accordance with the six penalty criteria set out in section llO(i) of the Act, 30 U.S.C.
§ 820(i). Sellersburg Stone Co. v. FMSHRC, 736 FMSHRC 1147, 1151 (1h Cir. 1984); Wallace
Brothers, inc., 18 FMSHRC 481,483-84 (Aprill996).
In connection with those criteria, the parties have stipulated that: (l) the Smith
Underground No. I mine is a large mine producing approximately 989,000 tons of coal per year;
(2) Co stain Coallnc. is a large company which generates 10,000,000 tons of coal per year; and
(3) a reasonab.le penalty will not affect the company's ability to remain in business. (Govt.
Ex. 1.) The Assessed Violation History Report indicates that both the ·company and the mine
have a low history of prior violations. (Govt. Ex. 8.) The gravity of the violations was serious
and the company's negligence was high. Finally, the evidence indicates that the operator
demonstrated good faith in attempting to achieve rapid compliance after notification of the
violations.
Balancing all of this together, I conclude that the penalties of $600.00·for Citation No.
4067761 and $900.00 for Order No. 4067768, proposed by the Secretary, are appropriate.
Accordingly, I will assess penalties of $1 ,500.00 in these cases.

1489

ORDER
Citation No. 4067761 in Docket No. KENT 97-23 and.Order No. 4067768 in Docket
No. KENT 97-73 are AFFIRMED. Costain Coal Incorporated is ORDERED TO PAY civil
penalties of $1,500.00 within 30 days of the date of this decision. On receipt of payment, these
proceedings are DISMISSED.

tt~.dJ,~-

Hod~T.,

T. Todd
Administrative Law Judge
(703) 756-6213
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)
Charles B. Lowther, Esq., Mitchell, Joiner, Hardesty & Lowther, 113 E. Center Street,
P.O. Drawer 659, Madisonville, KY 42431 (Certified Mail)

/mh

1490