OCTOBER 1984
Commission Decisions
10-01-84

U.S. Steel Mining Company

WEVA 82-387

Pg. 2305

Administrative Law Judge Decisions
10-01-84
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10-04-84
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10-09-84
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10-31-84

WEST 83-83-M
Montana Contract Mining Co.
Montana Contract Mining Co.
WEST 83-55-M
U.S. Steel Mining Co., Inc.
SE 84-10
BCNR Mining Corporation
PENN 84-93
N. L. Baroid-Div/NL Industries
CENT 84-15-M
Beckley Coal Mining Company
WEVA 83-252-R
Jumacris Mining, Inc.
WEVA 84-137
Kitt Energy Corporation
WEVA 83-125-R
KENT 84-92
South Hopkins Coal Company
MSHA/James McN. Taylor v. Buck Garden
WEVA 83-241-D
Coal Company
Southway Construction Co., Inc.
CENT 84-3-M
Pittsburg and Midway Mining Corp.
WEST 82-131-R(A)
Zeigler Coal Company
LAKE 83-8
Homer W. Davis v. Armco Steel Corp.
WEVA 84-118-D
MSHA/I.B. Acton and others v. Jim
SE 84-31-D
Walter Resources, Inc.
Bigelow Liptak Corporation
CENT 84-24-M
Terry Davis v. Canyon Valley Electric Co.WEST 83-97-DM
PENN 84-20
U.S. Steel Mining Co., Inc.
PENN 84-175
Faust and Miller Coal Co.
Local 1609, UMWA v. Greenwich Collieries PENN 84-158-C
Lonnie Jones v. D&R Contractors
KENT 83-257-D(A)
Lone Star Industries, Inc.
CENT 84-17-M
MSHA/David McConnell v. Jim Walter Res.
SE 84-38-D
Pyro Mining Company
KENT 83-212
Powderhorn Coal Company
WEST 82-150
Silver Ventures Corporation
WEST 82-215-M
Incoal, Incorporated
KENT 83-171

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COMMISSION DECISIONS

OCTOBER 1984
No cases were directed for review during the month of October.
Review was denied in the following case during the month of October:
Secretary of Labor on behalf of Larry Duty v. West Virginia Rebel Coal Co.,
Docket No. KENT 83-161-D, KENT 83-232-D. (Petition for Interlocutory Review
of Judge Broderick's September 18, 1984 Order.)

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

October 1, 1984

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

Docket No. WEVA 82-387

v.
U. S. STEEL MINING CO., INC.
DECISION
The issues before the Commission are whether the administrative
law judge properly found two violations of mandatory safety standards
to be significant and substantial ("S&S") within the meaning of
30 U.S.C. § 814(d)(l), section 104(d)(l) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et~· (1982) ("Mine Act"), and
whether the penalties assessed by the judge are appropriate under the
statutory criteria set forth at 30 U.S.C. § 820(i), section llO(i) of
the Mine Act. 1/ The violations in issue, both conceded by USSM,
involve (1) noncompliance with-the prohibition against transporting
compressed gas cylinders on mantrips [30 C.F.R. § 75.1106-2(c)], and
(2) inadequate guarding of a trolley wire [30 C.F.R. § 75.1003]. The
judge assessed penalties of $250 for the cylinder violation and $750 for
the wire guarding violation. 5 FMSHRC 1474 (August 1983)(ALJ). For the
reasons that follow, we affirm.
On May 6, 1982, an authorized representative of the U.S. Department
of Labor, Mine Safety and Health Administration ("MSHA"), conducted a
haulage system inspection at USSM's Gary No. 50 mine in Pineville, West
Virginia. The citations in this case were issued on that date by MSHA
Inspector Earl Barnett. During his inspection, Barnett was accompanied
by USSM senior mine inspector Russell Burge and miners' representative
Floyd Cox.

'J:../

U. S. Steel Mining Co. ("USSM") also maintained that under the
single penalty assessment criteria published by the Secretary of Labor
at 30 C.F.R. § 100.4 the Commission is limited to a penalty assessment
of $20 if a violation is found not to be S&S. This issue was decided
adverse to USSM's position in U. S. Steel Mining Co., Inc., 6 FMSHRC 1148
(May 1984). We adhere to that holding.

84-10-1

Citation #1066938
The c.ited standard, 30 C.F.R. § 75.1106-2(c), and other relevant
standards in the subpart, provide as follows:
§75.1106-2 Transportation of liquefied and nonliquefied
compressed gas cylinders; requirements.
(a) Liquefied and nonliquef ied compressed gas
cylinders transported into or through an underground
coal mine shall be:
(1) Placed securely in devices designed to hold the
cylinders in place during transit on self-propelled equipment or belt conveyors;

*

*

*

(3) Equipped with a metal cap or "headband" (fencetype metal protector around the valve stem) to protect
the cylinder valve during transit; and

*

*

*

(b) In addition to the requirements of paragraph (a)
of this section, when liquefied and nonliquefied compressed
gas cylinders are transported by a trolley wire haulage system
into or through an underground coal mine, such cylinders shall
be placed in well insulated and substantially constructed
containers which are specifically designed for holding such
cylinders.
(c) Liquefied and nonliquefied compressed gas cylinders
shall not be transported on mantrips.
While inspecting a three-compartment, self-propelled personnel
carrier or mantrip ];/ that belt crew miners had boarded to take into the
mine, Inspector Barnett observed one oxygen cylinder and one acetylene
cylinder lying unsecured on the floor of one of the two covered compartments of the carrier. None of the miners who had boarded the mantrip
was in the compartment where the cylinders were located. Both cylinders
had attached valves, but no hoses or gauges. There was a metal cap
over the oxygen valve; the acetylene valve was recessed into the top of
the cylinder. 1/

];/ U. S. Department of the Interior, A Dictionary of Mining, Mineral,
and Related Terms 679 (1968), defines mantrip as "[a] trip made by mine
cars and locomotives to take men rather than coal, to and from the
working places."
3/ The cylinders were in nylon-reinforced, plastic bags that are used
for carrying or,dr~gging the tanks. The bags do not prevent the tanks
from rolling or otherwise provide protection.

2308

MSHA Inspector Barnett issued the citation alleging a violation of
30 C.F.R. § 75.1106-2(c) and informed USSM inspector Burge that the
tanks should not be transported on a mantrip. After observing their
removal, Barnett, accompanied by miners' representative Cox, left the
area. Both Barnett and Cox believed that the tanks were taken into the
shop. At the hearing it was established that the tanks were taken into
the mine by placing them on another mantrip. The tanks were placed in
the same open compartment occupied by miners and were steadied during
transit by the miners. The testimony given by Barnett and Cox at trial
focused on the condition observed and cited, not on USSM's method of
abating the violation. It was not until USSM presented its case that
the actual method of transport was established.
Barnett testified that the cited condition could result in a mine
fire or explosion due to several causes. Vibration of the mantrip on
the track and rolling about of the unsecured acetylene tank could loosen
the valve, allowing escape of highly flanunable gas. A source of ignition
was provided by the trolley wire because of the possibility of arcing or
sparking. Similarly, rolling of the oxygen cylinder could cause the cap
to loosen and the valve to break, creating a projectile. Barnett also
testified that valves on both tanks could break in case of a derailment
or collision in which the tanks were tossed around or thrown from the
vehicle. !±_/ While testifying Barnett acknowledged that if the tanks
were in proper containers and securely fastened there would not have
been a hazard. The inspector did not cite USSM for failing to secure
the tanks because, in his view, they should not have been on the mantrip
and because he believed the hazard abated when the tanks were removed. 2/
In Barnett's view it was "very likely" that an accident could occur as a
result of the violation and "reasonably likely" for serious injury to
occur. Tr. 26.
Miner representative Cox stated that the usual practice in the
maintenance department was to carry tanks in the front of open jeeps
with the driver. He corroborated Barnett's testimony regarding the
hazards attendant to transporting the tanks in the same vehicles in
which miners were transported.
USSM inspector Burge testified that he knew of no instances at the
mine when vibration was sufficient to dislodge a valve or when gas escaped
during transport. In his view there was no chance for the cited condition
to contribute to an injury.

4/ Barnett stated that there are frequent derailments and collisions at
this mine, with its 46 miles of track, but he could not state specifically
how often they occur. However, he testified that he had been involved in
a derailment during this inspection and was there to inspect the mine
because of a prior head-on collision of mine vehicles. Cox subsequently
testified that gas cylinders being transported in the vehicles involved
in the prior collision had been'found lying along the track, but that
none had ruptured or had broken valves.
'}_/ See 30 C.F.R. §§ 75.1106-2(a)(l) and 2(b).

2307

Burge testified that he had received verbal guidelines from MSHA's
local Pineville office authorizing the transport of cylinders in personnel
vehicles if they were placed in separate compartments and the only miners
on the vehicles were part of the crew that would us.e the tanks (e.g., belt
crew, mechanics). Burge also stated that the Pineville office reaffirmed
the policy after the citation in issue was written. Barnett testified
he was unaware of the policy and disputed Burge's assertion that during
the inspection Barnett authorized the actual method of transport.
The Commission Administrative Law Jud.ge accepted USSM's representation
regarding the Pineville off ice policy because the Secretary failed to submit rebuttal evidence, although the record remained open for 72 hours after
trial for receipt of such evidence. However, the judge concluded on the
basis of Old Ben Coal Co., 2 FMSHRC 2806 (1980) and King Knob Coal Co., Inc.,
3FM:SHRC 1417 (1981) that confusion over the requirements of the cited standard
caused by the oral advice of a Pineville official would be relevant only
in evaluating USSM's negligence for the purpose of penalty assessment. He
further noted that, in any event, USSM failed to comply with the Pineville
policy because miners other than those who would use the tanks were on the
vehicle, the policy did not include a waiver of the requirement of 30 C.F.R.
§ 75.1106-2(a)(l) that the cylinders be secured, and the tanks were transported in the same compartment as the miners. ~/ The ju~ge credited the
testimony of Barnett and Cox with respect to hazards resulting from the
cited condition and concluded:
The preponderance of the evidence clearly supports a
finding that it was reasonably likely that hauling
unsecured cylinders in the mantrip bus could contribute
to the cause and effect of a mine safety hazard which
could result in an injury of a reasonably serious nature.
5 FMSHRC at 1484. The judge assessed a penalty of $250 based on the
statutory criteria in section llO(i) of the Mine Act, finding that USSM
is a large operation with a favorable or moderate history; that the
penalty would not affect the operator's ability to continue in business;
that USSM exercised good faith by abating the hazard within the time
provided; and that USSM exhibited ordinary negligence because the tanks
were transported both unsecured and in the same compartment as the miners.
USSM argues on review that: (1) the evidence relevant to the cited
condition does not establish an S&S violation under Cement Division,
National Gypsum Co.,.3 FMSHRC 822 (April 1981); (2) the judge applied
the National Gypsum test and the penalty criteria to the abatement
method rather than the cited violation; and (3) the valves on the tanks
were adequately protected.

~

To the extent that the judge's discussion of the merits of the S&S
findings includes consideration of the method of abatement subsequently
employed rather than the condition cited, we accept USSM's objections
and reject those considerations. However, on the basis of the evidence
produced by the Secretary and the relevant findings of the judge based
on that evidence, the error is harmless. See note 7 and accompanying
text infra.

2308

On review the Secretary maintains that the judge's S&S finding is
supported by substantial evidence and his penalty assessment is proper.
The Secretary does not dispute the existence of MSHA's Pineville office
policy, arguing instead that MSHA is not estopped from enforcing the
standard because of a prior incorrect interpretation and that there is
no evidence that MSHA ever approved a transport method as hazardous as
that cited. The Secretary also argues that confusion over compliance
responsibilities is relevant only to penalty assessment under King Knob
Coal Co., Inc., supra. Further, in his view, USSM's failure to secure
the tanks was properly considered by the judge because the failure
increased both the gravity and negligence of the violation and undermined
USSM's asserted compliance with local policy.
The Commission has held that a violation is properly designated S&S
"if, based on the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." National
Gypsum, supra at 825. In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
1984), the Commission further explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a
measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
See U. S. Steel Mining Co., Inc., Docket No. PENN 83-63 (August 28,
1984); U. S. Steel Mining Co., Inc., Docket No. PENN 83-39, slip op.
at 2-3 (August 23, 1984).
In this case, USSM has conceded the violation; the issue is whether
the violation was significant and substantial. The judge credited the
testimony of Barnett and Cox, implicitly rejecting Burge's testimony that
the valves on the tanks were protected adequately and that the cover on
the compartment in which they were placed provided further protection.
The judge f,ound that miners were exposed to hazards which could be presented by an explosion of leaking acetylene gas or the creation of a
projectile due to the leakage of oxygen. He also found a reasonable
likelihood of injury if miners were struck by cylinders being tossed
about in a collision or derailment. The judge specifically found it
reasonable to expect these occurrences on USSM's extensive rail system,
particularly noting Barnett's derailment experience. See note 4 supra.
On the basis of the record evidence discussed above, we hold that
substantial evidence supports the judge's findings (see note 6 supra)
and his conclusion that the violation was significant and substantial
under the test set forth in National Gypsum, supra, and its progeny.

2 ·-~r:: f'-9
v

The judge properly applied King Knob Coal Co., supra, in which the
Commission held that although an incorrect interpretation of a regulatory
requirement by an MSHA official does not have the force and effect of law
and will not serve to negate liability for violative conduct, detrimental
reliance on that interpretation is properly considered in mitigation of
penalty. For this reason, we reject USSM's argument that MSHA's approval
of its method of transport negates an S&S finding. We also hold that the
judge's finding of ordinary negligence is supported by substantial
evidence, and we affirm his penalty assessment of $250 as consistent
with the statutory penalty criteria. ]_/
Citation #1066940
The cited standard, 30 C.F.R. § 75.1003, is a statutory provision
that provides in pertinent part:

§ 75.1003

Insulation of trolley wires, trolley feeder
wires and bare signal wires: guarding of trolley
wires and trolley feeder wires.
[STATUTORY PROVISIONS]

Trolley wires, trolley feeder wires, and bare signal
wires shall be insulated adequately where they pass through
doors and stoppings, and where they cross other power wires
and cables. Trolley wires and trolley feeder wires shall
be guarded adequately:
(a) At all points where men are required to work or
pass regularly under the wires;
(b) On both sides of all doors and stoppings;
(c) At man-trip stations.
Barnett, Cox and Burge traveled to the B-Panel section of the
underground mine and parked behind an 18-f oot portal bus or mantrip
that was located 40 feet outby the end of the track, under 5-foot-high,
250-volt trolley wire. Only the first 10 feet of the wire at the end of
the track was guarded. §_/ Supplies that apparently had been unloaded on
the.prior shift were observed along both sides of the track for a
distance of 20 to 25 feet outby the bus. It was assumed by the members
of the inspection party that the bus had been exited at the enq of the
track under 10 feet of guarded wire, leaving 8 feet of the bus under
unguarded wire. Barnett issued a citation that alleged, "[t]he trolley
wire at the end of the supply track in the B-panel section where men and
supplies are unloaded was not adequately guarded.
]_/ The judge also stated that the MSHA Pi~eville office guidelines did
not include permission to transport tanks in the same compartment as the
miners. This conclusion is not relevant to the cited condition and is
rejected. See note 6 supra. Nevertheless, because the judge's S&S
finding and penalty assessment are supported on alternative grounds
relevant to the condition·cited, the error is harmless.
§_/ USSM was engaged in retreat mining. The 10-foot section of guarding
on the wire was apparently the portion that remained after the track was
pulled back.

The center compartment of the portal bus was uncovered, the two end
compartments were covered. When at the end of the track, the inby covered
compartment and part of the open compartment would be under guarded wire.
The open section has a capacity of 8 miners. Normally, however, only the
operator and the foreman ride in that section. Supply cars have 2 1/2 feet
of clearance below the wire; lower personnel carriers have 4 feet of
clearance.
Both Barnett and Cox testified that miners exiting the open center
compartment were in danger of contacting the energized wire should they
rise before exiting the compartment. Barnett also stated that miners
could lose their balance and fall backward onto the wire, becoming
expose.d to burn or electrocution hazards. Barnett stated that the
location of the supplies he observed indicat~d they had been unloaded
under unguarded wire, but he did not know whether the wire had been
energized at the time the supplies were unloaded. He testified, however,
that the citation would have been written regardless of the presence of
supplies.because miners had arrived and would be arriving at the mantrip ~
station during the shift. In his view, the inadequate guarding should
have been apparent when the area received a preshift examination and
when the foreman arrived earlier with the crew.
Burge testified that it was not hazardous for miners to exit vehicles
in areas of unguarded wire because they exit in a direction away· from the
energized wire. He was not aware of any instances at the mine in which
miners contacted a trolley wire. Burge also stated that a power cut-off
switch located 160 feet outby the end of the track was used to deenergize the wire whenever supplies were unloaded or picked up for use
on the working section during the shift. Burge's testimony differed
from Barnett's regarding the specific location of the supplies, but he
acknowledged that timbers were located 3 to 4 feet from the wire.
The judge found that miners would be exposed to the hazard of
I/'
contacting unguarded wire if they exited a mantrip or jeep and became
unbalanced, an event he considered reasonably likely to occur. 5 FMSHRC
at 1493-4. He also found, based on a concession by Burge, that any
miner who moved the vehicle out of the supply area to facilitate the
.,/"
loading or unloading of supplies would be entering and exiting the mantrip
under energized, unguarded wire. 5 FMSHRC at 1491. With respect to
USSM's claim that the wire would be de-energized before supplies were
obtained from along the track, the judge found that the miner responsible
for turning the power on and off would be exposed. Finally, the judge
found that any persons arriving at the working section during the shift
would be exposed, as was the inspection party, when they exited and
returned to their vehicle. 5 FMSHRC at 1493. The judge concluded,

2311

[I]t was reasonably likely that the violation could have
resulted in an injury of a reasonably serious nature.
I find that the inspector properly considered the
violation to be "significant and substantial" as that
term has been defined by the Conunission in the National
Gypsum case, supra.
5 FMSHRC at 1494.
The judge found a high degree of negligence on USSM's part, concluding that the violation was readily observable and the section of wire
guarding that remained should have been a reminder that extension of the
guard was necessary. He also found the violation to be of serious
gravity because of the potential for shock or electrocution. A penalty
of $750 was assessed.
USSM argues on review that the judge improperly based his decision
on hazards to miners going to the cut-off switch, a claim that USSM was
denied an opportunity to defend against. The operator also argues that
record evidence does not support the judge's finding that serious in]ury
was reasonably likely as a result of the violation or his findings
regarding negligence and gravity.
We conclude that substantial evidence supports the judge's S&S
finding that the trolley wire violation at the mantrip station exposed
miners exiting the portal bus or mantrip to the hazard of contacting the
250-volt energized line and sustaining serious injury. Notwithstanding
the evidentiary dispute regarding the energized status of the wire when
supplies were loaded and unloaded, the evidence clearly establishes that
the wire was energized when miners exited the open compartment of the
bus at the mantrip station in sufficient proximity to the wire to be
exposed to burn or electrocution hazards. We note in this regard that
the inspector specifically stated he would have written the citation
even had he not observed the supplies along the track. The citation
charged a violation at the end of the supply track where men and supplies
are unloaded. This location is both a mantrip station and an area
where miners are required to work and regularly pass under the wire
within the meaning of the cited standard. USSM conceded that violation.
It is only the S&S designation of the violation that is before us.
Accordingly, we need not 'and do not decide whether USSM also violated
the standard at the location of the cutoff switch or at the location
where the inspection party parked its jeep. Furthermore, we reject
USSM's argument that the judge's decision was based on the exposure of a
miner going to the cut-off switch. Substantial evidence supports the
judge's S&S findings for the violation as cited. Substantial evidence
further supports the judge's findings of a high degree of negligence and
serious gravity for the reasons he gave.

2 ~· 1.2
1

.,_. ... L

-~

Accordingly, the judge's conclusion that citations #1066938 and
#1066940 were significant and substantial within the meaning of section
104(d)(l) of the Mine Act, and his penalty assessments of $250 and $750,
respectively, are affirmed. 2_/

~
,/
! le l J_c---io..___.
Richard V. Backley, Commissioner

\_ __

.

~

L. Clair Nelson, Commissioner

9/ The terms of office of our former colleagues, Commissioners Frank F.
Jestrab and A. E. Lawson, expired at the end of day on August 30, 1984.
Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we have
designated ourselves a panel of three members to exercise '~11 of the
powers of the Commission," including the issuance of orders and decisions
in proceedings before this Commission.

2313

Distribution
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Louise Q. Symons, Esq.
U.S. Steel Mining Company
600 Grant Street, Room 1580
Pittsburgh, Pennsylvania 15230
Administrative Law Judge Richard Steffey
Federal Mine Safety & Health Review Connnission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

2 ') 1 ':tA
t_) .

ADMINISTRATIVE LAW JUDGE DECISIONS

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

80204

0 i""'

'....

·~
~

l

.1.

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 83-83-M
A.C. No. 24-01607-05501

v.

Elk Creek Mine

MONTANA CONTRACT MINING CO.,
Respondent
DECISION
Appearances: James H. Barkley, Esq., and Margaret A. Miller, Esq.
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Petitioner;
Mrs. M.J. Good, Montana Contract Mining Company,
Greenough, Montana, pro se.
Before:

Judge Morris

This case, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., (the
"Act"), arose from an inspection of the Elk Creek Mine. The
Secretary of Labor seeks to impose civil penalties because
respondent allegedly violated safety regulations promulgated
under the Act.
Respondent denies any violations occurred.
After notice to the parties, a hearing on the merits was
held in Missoula, Montana on April 18, 1984.
The parties waived their right to file post-trial briefs.
Issues
The issues are whether respondent violated the regulations;
if so, what penalties are appropriate.

23.15

Citation 578245
This citation alleges a violation of Title 30, Code of
Federal Regulations, Section 57.11-50, which provides:
Escapeways - Underground Only
57.11-50 Mandatory. Every mine shall have two or more
separate, properly maintained escapeways to the surface
from the lowest levels which are so positioned that
damage to one shall not lessen the effectiveness of the
others. A method of refuge shall be provided while a
second opening to the surface is being developed. A
second escapeway is recommended, but not required,
during the exploration or development of an ore body.
In addition to separate escapeways, a method of refuge shall be provided for every employee who cannot
reach the surf ace from his working place through at
least two separate escapeways within a time limit of
one hour when using the normal exit method.. These refuges must be positioned so that the employee can reach
one of them within 30 minutes from the time he leaves
his work place.
Summary of the Evidence
On February 22, 1982, MpHA Inspector Eric Shanholtz
inspected respondent's underground barite mine. The inspection
failed to locate a secondary escapeway. Miners entered and left
the mine through the main portal (Transcript at pages 27 and 30).
The hazard arising from the failure to have a secondary
escapeway focuses on the fact that miners can remain trapped in
the mine if they cannot use the main escapeway. An unplanned
explosion or fire could block the main exit. Powder was stored
between the miners and the main portal (Tr. 33, 34).
The condition was abated by installing an escapeway (Tr.

32).
An admission from respondent in the file indicated a lack of
funds prevented the installation of the escapeway. Further, the
failure to provide it was not a deliberate act (Tr. 31).
Respondent presented no evidence as to this citation.
Discussion
The facts establish a violation of the regulation. There
were not two escapeways.
As the inspector indicated miners could
easily have been trapped in this mine.
The citation should be affirmed.

Citation 578246
This citation alleges a violation of 30 C.F.R. 57.3-20 which
provides:
Underground Only
57.3-20 Mandatory. Ground support shall be used if the
operating experience of the mine, or any particular
area of the mine, indicates that it is required. If
it is required, support, including timbering, rock
bolting,. or other methods shall be consistent with the
nature of the ground and the mining method used.
Summary of the Evidence
Federal Inspector Eric Shanholtz issued this citation on
April 12, 1982. On that date he tested the ground~
It sounded
drummie and hollow (Tr. 35).
Respondent's admission, a letter in the file, confirms that
the back was drummie and hollow. But respondent further states
that no one was working in the area (Tr. 34). However, the inspector testified that miners were actively mining as they passed
through the area at the time of his inspection. ·several slab
rounds had damaged the integrity of the shaft.
In the
inspector's opinion a serious roof fall would occur if this
condition remained unabated (Tr. 35-36).
If a roof fall occurred
death or a serious injury could result (Tr. 36).
Discussion
I credit MSHA's evidence concerning this violation. The
inspector has a background in mining and is experienced in this
area. He was present and observed two miners actively working in
close proximity to the violative condition. Cf. White Pine
Copper Division Copper Range Company, 5 FMSHRC 825 (1983).
Respondent's witness Mrs. M.J. Good is not shown to have
been present at the time of the inspection. For this reason I am
not persuaded by her testimony.
The citation should be affirmed.
Citation 578252
This citation alleges a violation of 30 C.F.R. § 57.6-168,
which provides:
57.6-168 Mandatory. Misfires shall be reported to
the proper supervisor and shall be disposed of safely
before any other work is performed in that blasting area.

n ')

It~

!:::iu.J.. I

Summary of the Evidence
Inspector Shanholtz issued the above citation at Elk Creek
Mine on May 18, 1982 (Tr. 36, 37; Exhibit Pl). The violative
condition consisted of approximately 80 misfires located in the
secondary escapeway. The escapeway had been completed as a
result of a previous citation issued to respondent. The misfires
were 10 to 15 years old. With the passage of time powder becomes
unstable. As it decomposes the nitro separates. These misfires
were unstable. An explosion with resultant serious injury could
occur (Tr. 40, 41, 47, 48; Exhibit P2).
The inspector originally set an abatement date of June 16,
1982. When he returned he issued a 104(b) order because the
defect had not been Gorrected; further, respondent had made no
effort to remove the misfires (Tr. 38-40).
Respondent's representative, Mrs. M.J. Good, indicated the
miners felt they were asking for trouble if they attempted to
correct this condition. The company, at MSHA's insistence, put
on a work shift to take care of the problem (Tr. 44).
Discussion
The factual setting here establishes a violation of the
regulation. The unstable condition of the powder has presented a
serious hazard for many years.
Respondent's evidence does not present a defense. While the
miners may have felt unsafe in attempting to correct the misfires
they could have sought MSHA's expert guidance on how to proceed
in abating this condition.
The citation should be affirmed.
Citation 578255
This citation alleges a violation of 30 C.F.R. § 57.9-54,
which provides:
57.9-54 Mandatory. Berms, bumper blocks, safety hooks,
or similar means shall be provided to prevent overtravel
and overturning at dumping locations.
Summary of the Evidence
Inspector Shanholtz issued this citation when he observed
two workers dumping at a waste site from a young buggy !I and a
loader. The vehicles came to the edge of the 20 foot high,

ll

A young buggy is a three wheel that can be unstable (Tr. 47).

fairly steep, bank (Tr. 44-47). There were no berms to prevent
overtravel of the vehicles (Tr. 44, 45).
The hazard from this condition is that the vehicle can go
over the edge. The operator of the vehicle, due to the lack of a
berm, does not know when he is on the edge (Tr. 46).
Respondent's evidence indicated the company had eliminated
this problem. In addition, some of respondent's evidence dealt
with the differences between the ore dump and the waste dump (Tr.
50-52).
Discussion
The evidence establishes a violation of the regulation. The
waste dump lacked a berm to prevent overtravel by the dumping
vehicles.
Respondent's evidence does not raise a defense to the
violation.
The citation should be affirmed.
CIVIL PENALTIES
The criteria for assessing civil penalties are contained in

30

u.s.c. 820(i).

In connection with these factors, on this consolidated
record I find the following facts: In the two years before
December 29, 1982, respondent was assessed six violations
(Exhibit Pl in WEST 83-55-M).
The proposed penalties do not appear inappropriate in
relation to the size of the operator. The operator's negligence
was high inasmuch as all of the violative conditions were readily
apparent and could have been corrected. The penalties proposed
should not affect the operator's ability to continue in business.
The record reflects the company has been shut down since March
15, 1983. But it is further indicated the company is waiting for
market conditions to improve (Tr. 25, 26). On the record the
gravity of each violation is high. A fatality could result from
each violative condition.
The final statutory criteria is respondent's demonstrated
good faith in attempting to achieve rapid compliance after being
notified of the violation. On this issue Inspector Shanholtz
indicated that respondent lacked direction, was shoddy,
unexperienced and engaged in poor mining practices (Tr. 48). On
the other hand Mrs. Good testified that the company had always

0010
J

~u

fully cooperated with MSHA.
I~ addition, three of her four
employees had considerable mining experience. Further, the
company rel~ed on such experienced people (Tr. 49, 54, 55).
On this issue I credit MSHA's eviden~e.
In the event
respondent's employees were experienced on this record I can only
conclude they failed to use their expertise.
After carefully considering all of the statutory criteria I
am unwilling to disturb the penalties proposed by the Secretary.
Accordingly, I enter the following:
ORDER
1. The following citations and proposed penalties are
AFFIRMED,
Citation No.
578245
578246
578252
578255

Penalty
$ 20.00
74.00
370.00
68.00

2. Respondent is ordered to pay to the Secretary the sum of
$532 within 40 days of the date of this decision.

Law Judge
Distribution:
James H. Barkley, Esq., and Margaret A. Miller, Esq., Office of
the Solicitor, U.S. Department of Labor, 1585 Federal Building,
1961 Stout Street, Denver, Colorado 80294 (Certified Mail}
Mrs. M.J. Good, Montana Contract Mining Company, P.O. Box 351,
Greenough, Montana 59836 (Certified Mail}
/blc

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

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

0 c: .1

1984

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-55-M
A.C. No. 24-01607-05503

v.

Elk Creek Mine

MONTANA CONTRACT MINING CO.,
Respondent
DECISION
Appearances: James H. Barkley, Esq., and Margaret A. Miller, Esq.
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Petitioner;
Mrs. M.J. Good, Montana Contract Mining Company,
Greenough, Montana, pro se.
Before:

Judge Morris

This case, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., {the
"Act"), arose from an inspection of the Elk Creek Mine. The
Secretary of Labor seeks to impose civil penalties because
respondent allegedly violated safety regulations promulgated
under the Act.
Respondent denies it violated the regulations.
After notice to the parties, a hearing on the merits was held
in Missoula, Montana on April 18, 1984.
The parties waived their right to file post-trial briefs.
Issues
The issues are whether respondent violated the regulations;
if so, what penalties are appropriate.·

2 lJ ')1
r)

~-

Citations
Citation 2081208 alleges a violation of Title 30 Code of
Federal Regulations, Section 57.4-24 which provides as follows:
57.4-24 Mandatory. Fire extinguishers and fire
suppression devices shall be~
(a) Of the appropriate type for the particular
fire hazard involved.
(b) Adequate in number and size for the particular fire hazard involved.
(c) Replaced with a fully charged extinguisher
or device, or recharged immediately, after any
discharge is made from the extinguisher or device.
(d) Inspected, tested, and maintained at regular
intervals according to the manufacturer's recommendations.
(e) Approved by the Underwriter's Laboratories,
'Inc., or other competent testing agency acceptable
to the Mining Enforcement and Safety Administration.
Citation 2081209 alleges a violation of 30 C.F.R. § 57.6-1
which provides:
General-Surface and Underground
57.6-1 Mandatory. netonators and explosives other
than blasting agents shall be stored in magazines.
Summary of the Evidence
MSHA Inspector Seibert Smith, a person experienced in
mining, inspected respondent's underground barite mine for two
days commencing December 28, 1982 (Tr. 7, 9).
Four employees of respondent and two contract core drillers
were at the mine site (Tr. 9, 10). They were drilling core
samples (Tr. 10).
The inspection party went into the main generator area. A
225 volt DELCO generator was providing electricity. Within six
feet of the generator were diesel fuel, motor oil, 7 cases of 50
pound boxes of DuPONT powder and one 50 pound bag of a Prell type
blasting agent (Tr. 11-13, 23).
The DuPONT explosives were not a blasting agent. They were
high explosives. They should have been stored in a proper
magazine (Tr. 13, 14). There was, in fact, an ATF 1/ approved
magazine outside the mine, some 50 feet from the portal (Tr. 13).

l/ Alcohol, Tobacco and Firearms, an agency of the federal
government (Tr. 22).

002-2
~u

A powder cache of 350 pounds is significant. No explosives
were being used on the day of the inspection. But in this small
mine one case of powder would be sufficient for a day's blasting
(Tr. 23).
Garth Good told the inspector that the explosives were
brought in because they felt they would freeze if they were left
outside (Tr. 16). The company was aware of the condition but the
core drillers were surprised (Tr. 17-21).
There was no fire extinguisher in the mine (Tr. 12).
In the inspector's opinion a fire extinguisher should be
available. A fire could be caused by a spark from the generator
exploding the diesel fuel (Tr. 12). The inspector further
indicated that if an explosion occurred the concussion could kill
the miners in the shaft (Tr. 14, 16). If the condition remained
unabated it was reasonably likely that an explosion could occur
(Tr. 15).
The violation was abated when four fire extinguishers were
purchased and installed. The fuel and explosives were carried by
hand out of the mine (Tr. 20, 24, 25).
Respondent offered no evidence to rebut the facts of the
violation.
Discussion
The evidence establishes that powder was stored outside of a
magazine; further, there were no fire extinguishers in the
underground area where the generator was located.
The uncontroverted evidence establishes a violation of both
regulations and the citations should be affirmed.
CIVIL PENALTIES
The criteria for assessing civil penalties are contained in
30 U.S.C. 820Ci).
In connection with these factors, on this consolidated
record, I find the following facts:
In the two years before
December 29, 1982, respondent was assessed six violations
(Exhibit Pl in WEST 83-55-M).

The proposed penalties co ~ot appear inappropriate in
relation to the size of the operator.
The operator's negligence
was high inasmuch as all of the violative conditions were readily
apparent and could have been corrected.
The penalties proposed
should not affect the operator's ability to continue in business.
The record reflects the company has been shut down since March
15, 1983.
But it is further indicated the company is waiting for
market conditions to improve (Tr. 25, 26).
On the record the gravity of these violations is exceedingly
high.
A fire, with no extinguisher to inhibit it, could readily
ignite the explosives.
There was enough powder on hand to create
a minor Mount St. Helens.
To respondent's credit is the fact that the company has
always fully cooperated with MSHA.
The violations here are of a basic and serious nature.
unwilling to disturb the Secretary's proposed penalties.

I

am

Accordingly, based on the foregoing findings of fact and
conclusions of law, I enter the following:
ORDER
1. Citation 2081208 and the proposed penalty of $20.00 are
affirmed.
2. Citation 2081209 and the proposed penalty of $195.00 are
affirmed.

3. Respondent is ordered to pay to the Secretary of Labor
the sum of $215.00 within 40 days of the date of this decision.

Law Judge
Distribution:
James H. Barkley, Esq., and Margaret Miller, Esq., Office of the
Solcitior, U.S. Department of Labor, 1585 Federal Building, 1961
Stout Street, Denver, Colorado 80294 (Certified Mail)
Mrs. M.J. Good, Montana Contract Mining, P.O. Box 351, Greenough,
Montana 59836
(Certified Mail)
/blc

2324

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

CIVIL PENALTY PROCEEDING

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

Docket No. SE 84-10
A.C ... No. 01-00851-03534

v.

Oak Grove Mine

U.S. STEEL MINING CO., INC.,
Respondent
DECISION
Appearences:

George D. Palmer, Esq., Off.ice of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for Petitioner;
Louise Q. Symons, Esq., U.S. Steel Mining Company,
Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a citation issued by an MSHA
inspector pursuant to § 104(a} of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 820(a}, charging the
respondent with a violation of § 103(f} of the Act for failing
to compensate an authorized representative of miners for
the time spent accompanying the inspector during his visit
to the mine.
The citation no. 2192163, was issued on July 18,
1983, by MSHA Inspector Theron E. Walker, and the "condition
or practice" cited is described as follows:
Steve Marable, an employee.of the Oak Grove
Mine and an authorized representative of the
miners, suffered loss of pay during the period
he participated in an accident investigation
(an· ignition of a mixture of methane gas and
air} • Steve Marable was accompa,nying Theron Walker,
who was conducting the investigation and is an
authorized representative of the secretary on
day shift, June 20, 1983.
The investigation was conducted on Mr. Marable's
regularly scheduled workshif t and no other
authorized representative of the miners received
pay for the period they participated in the
accident investigation.

') ') ') 5

f:,w ~' ....

Respondent filed a timely answer contesting the citation,
and a hearing was held in Birmingham, Alabama. The parties
filed posthearing arguments, and they have been considered
by me in the course of this decision.
Applicable Statutory and Regulatory Provisions
I. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seq.
2.

Sections llO(i), 103(a), and 103(f) of the Act.

3.

Commission Rules, 29 C.F.R.

§

2700.1 et seq.

Issues
The question presented is whether or not the union walkaround representative was entitled to pay for the time spent
accompanying the MSHA inspector during his visit to the mine
on June 20, 1983.
Stipulations
The parties stipulated to the following:
1. The Operator is the owner and operator of the
subject mine.
2. The Operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977.
3. The Administrative Law Judge has jurisdiction in
this case.
4. The MSHA Inspector who issued the subject citation was
a duly authorized representative of the Secretary.
5. A true and correct copy of the subject citation was
properly served upon the Operator.
6. The copy of the subject citation and determination of
violation at issue are authentic and may be admitted into
evidence for purpose of establishing its issuance, but not
for the purpose of establishing the truthfulness or relevance
of any statements asserted therein.
7.
Imposition of a penalty in this case will not affect
the Operator's ability to do business.

0 '.J ')

!~U,_

6

8.
9.
average.
10.

The alleged violation was abated in good faith.
The Operator's history of prior violations is
The Operator's size is large.

11. The MSHA Inspectors and the witnesses who will
testify in behalf of the Operator are accepted, generally,
as experts in mine health and safety.
Discussion
Section 103(f), commonly referred to as "the walkaround
right," provides as follows:
Subject to regulations issued by the Secretary,
a representative of the operator and a representative authorized by his miners shall be given
an opportunity to accompany the Secretary or his
authorized representative during the physical
inspection of any coal or other mine made pursuant
to the provisions of subsection (a), for the
purpose of aiding such inspection and to participate
in pre- or post-inspection conferences held at the
mine. Where there is no authorized miner representative, the Secretary or his authorized
representative shall consult with a reasonable number
of miners concerning matters of health and safety
in such mine.
Such representative of miners who
is also an employee of the operator shall suffer
no loss of pay during the period of his participation
in the inspection made under this subsection. To
the extent that the Secretary or authorized representative
from each party would further aid the inspection, he
can permit each party to have an equal number of
such additional representatives. However, only one
such representative of miners who is an employee
of the operator shall be entitled to suffer no loss
of pay during the period of such participation under
the provisions of this subsection. Compliance with
this subsection shall not be a jurisdictional prerequisite
to the enforcement of any provision of this Act.
The facts in this case are not in dispute. A methane face
ignition occurred at the mine during the day shift on Friday,
June 17, 1983. The incident was promptly reported to MSHA
by mine management. MSHA Inspector T. J. Ingram issued a
verbal § 103(k) withdrawal order for purposes of preserving
the scene of the ignition pending an investigation by MSHA.
Inspector Ingram subsequently reduced his verb.al order to
writing (Exhibit P-20).

9.._v._
,, •)7

On Monday, June 20, 1983, MSHA Inspector Theron E. Walker,
was instructed by his supervisor to go to the mine to investigate the reported ignition, and Inspector Walker and other
MSHA inspectors, along with company and union officials,
conducted an investigation, and the results were reported in
MSHA's official report of investigation (Exhibit P-2).
Inspector Walker had previously inspected the mine as
part of his regular quarterly inspection, which had not been
completed at the time of the ignition in question. However,
on Monday, June 20, 1983, his principal mission was to conduct
an investigation concerning the ignition, and he did not
continue his regular inspection of the mine on that day.
Mr. Steve Marable, a miner employed at the mine, was
the duly authorized and recognized UMWA walkaround representative,
and he had in the past, accompanied Inspector Walker during
his regular inspections of the mine. During the special
face ignition investigation conducted on June 20, 1983,
Mr. Marable participated in the investigation as the duly
designated UMWA representative, but he was not compensated
and lost a day's pay. Mine management informed him that he
would not be paid, and he so informed Inspector Walker.
Respondent's counsel conceded that Mr. Marable was not paid,
and counsel further conceded that it was mine management's
policy to pay UMWA walkaround representatives only for
accompanying MSHA inspections on regular enforcement inspections
of the mine, and that no payment was authorized for accident
investigations of the kind conducted in this case.
Upon completion of the investigation on June 20, 1983,
the § 103(k) order was terminated. MSHA's investigation did
not result in the issuance of any notices or orders for any
violations of any mandatory safety or health standards, and
MSHA's findings concluded that the investigation did not
reveal any violations.
Inspector Walker testified that he waited until July 18,
1983, to issue his citation because it took that long for
Mr. Marable to produce his payroll records to document the
fact that he was not paid for June 20, 1983. Mr. Walker
confirmed that he terminated the citation on August 11, 1983,
after Mr. Marable documented the fact that he was completely
compensated. Respondent's counsel confirmed all of these
facts.
Petitioner's Arguments
In support of its case, the petitioner states that the
Third Circuit has recently joined the District of Columbia

Circuit in holding that compensation of a miner representative
is required for spot inspections.as well as regular inspections.
Consolidation Coal Company v. FMSHRC and Donovan, ~- F.2d
(3rd Cir. 1984). In response to the respondent's asserted
narrow reading of the law, petitioner cites the following
from page 6, slip copy of the Court's decision:
The narrow reading urged by the company is
inconsistent with the declared intent of Congress
to promote safety in the mines and encourage miner
participation in that effort.
Petitioner also cites my prior decision in Secretary of
Labor v. Monterey Coal Company, 5 FMSHRC 1223 (1983), where
I held that a miner's representative accompanying an inspector
during a roof control "technical investigation" was entitled
to be compensated for the time spent with the inspector. ~/
Petitioner argues that the Monterey decision is consistent
with the Interpretative Bulletin published by MSHA on
April 25, 1978 (Exhibit P-1), and that when read together,
establishes that the respondent has violated § 103(f) of
the Act. Petitioner concludes that the "inspection" in
question in this case was made for several of the purposes
set forth in§ 103(a), and that Inspector Walker was obviously
present at the mine site to physically observe or monitor
safety and health conditions. Under these circumstances,
petitioner concludes further that}1r. Walker's physical
inspection was part of direct safety and health enforcement
activity.
Respondent's Arguments
Respondent argues that walkaround pay is not required
in cases where a miner's representative accompanies an
MSHA inspector during an investigation. Respondent maintains
that such pay is required pursuant to § 103{f), only when the
inspector is at the mine to perform an inspection function
as a duly authorized representative of the Secretary of Labor.
In support of its argument, respondent asserts that inspections
made pursuant to§ 103(f) of the act seems to be limited
to physical inspections of the mine and pre- or post-inspection
conferences in connection with the inspection held at the mine.
Respondent points out that while§ 103(f) refers to§ 103(a),
it does not seem to incorporate all of § 103(a) for§ 1Q3(a)
refers to both inspections and investigations. Respondent
concludes that Congress must have intended two separate
activities by these two words or they would have used only
one as they did in§ 103(f), and it cites Webster's New
International Dictionary, 2d Ed., which. indicates that "inspect"
means "to look upon, to view clearly and critically, especially
so as to ascertain quality or state, to detect errors, etc.,"
while "investigate" means "to follow up by patient inquiry
or observation; to inquire and examine into with systemic
*/Affirmed by the 7th Circuit on September 14, 1984,
Monterey Coal Co. v. FMSHRC,
F.2d
(7th Cir.).

attention to detail and relationship." Respondent maintains
that this seems purposefully consistent with the theory that
Congress intended that miners be paid when they accompany
an MSHA inspector who is engaged in an enforcement activity,
i.e., a physical inspection of the premises ·to determine if
the operator has met the standards of compliance required
by the mandatory health and safety standards. Respondent
concludes that one must presume Congress meant what it said
when it left the word "investigation" out of § 103'(f), i.e.,
there is no requirement that a miner be paid to accompany
an inspector who is examining the underlying causes of an
event.
Respondent recognizes that a methane ignition can occur
even when the mine is fully in compliance with the federal
regulations (Tr. 49). Conceding the fact that the purpose
of a methane ignition investigation is to determine what
can be done in the future to prevent a reoccurrence (Tr. 17),
and that an inspector has to issue a citation everytime, he
sees a violation (Tr. 27), respondent maintains that this
does not change the purpose for which he entered the mine.
In response to the petitioner's reliance on Monterey
Coal Company, supra, respondent maintains that the inspector
there was investigating whether the operator was in compliance
with his roof control plan.
Respondent points out that since
a roof control plan becomes a mandatory safety standard at the
mine where Lt is adopted, the purRose of the investigation
was to determine compliance with a mandatory standard.
Respondent argues that the instant case is easily distinguishable
·in that the inspector admits that his purpose in coming to
the mine was not to inspect the mine to see if it was in
compliance with mandatory safety standards, but to investigate
why a methane ignition occurred and to determine what could
be done to prevent the occurrence of a second ignition.
Respondent concludes that the facts in this case are clear
that the visit to the mine on June 20, 1963 was not an
enforcement activity (Tr. 17), the inspector did not arrive
at any conclusions as to how another ignition could be avoided,
and in fact, the mine had another ignition the next shift (Tr. 62).
Findings and Coraclusions
The arguments made by the respondent in this case are
essentially the same arguments made by Monterey Coal Company.
The crux of Monterey's arguments was that a roof control
technical investigation conducted by an MSHA inspector was
not compensable under § 103(f) because the terms "inspections"
and "investigations" have different meanings and were never

used interchangeably in the Act. Monterey maintained that
the fact that Congress included both terms within the coverage
of§ 103(a} ,·but used only the term "inspection" in§ 103(f},
indicated that Congress clearly intended that compensation
only be paid for inspections and not for investigations.
Inspector Walker confirmed that the§ 103(k} order which
was issued in this case c.ontained an "AFC" designation code,
and that it is not the same as a § 103 spot inspection
(Tr. 18, 22). He indicated that in a methane ignition
investigation, witnesses are interviewed in an attempt to
determine what can be done to prevent further ignitions,
whereas in a spot inspection, he is looking for violations
of particular standards (Tr. 22-23). MSHA's official Report
of Investigation (Exhibit P-2), confirms that Mr. Walker was
conducting an AFC, or "Noninjury Methane Gas Ignition"
investigation.
Inspector Walker confirmed that Mr. Marable is the
regularly assigned Union walkaround representative who routinely
accompanies him during his regular inspection of the mine.
Mr. Walker also confirmed that the mine is o~ an MSHA "103(i}
spot inspection cycle" because it is more gassy than some
mines (Tr. 12, 14-15), and he testified that during his
investigation at the scene of the ignition on June 20, 1983,
he checked out the equipment present, the ventilation, roof
conditions, equipment permissibility, and made gas tests (Tr. 13).
He confirmed that this is essentially what is done during his
regular AAA inspections (Tr. 13).
Section 103(a} of the Act authorizes the Secretary to
conduct inspections or investigations to determine the causes
of accidents. Any time there is a mine accident or disaster,
MSHA's usual practice is to issue "control orders" to either
withdraw miners from the scene, preserve evidence, or both.
Once this is done, accident inspection teams consisting
of state, federal, union, and company personnel enter the mine
for the purpose of conducting an investigation.
In this
context, I believe that an MSHA inspector is there to
investigate and to inspect. One function cannot be separated
from the other, and in both instances, an inspector is
performing an eh,forcement function, and it is unrealistic
to suggest that he is there for any other purpose.
While it is true that Mr. Walker's initial investigative
mission on June 20, 1983, focused on finding the cause of
the methane ignition so as to prevent a second such incident,
it is clear that had he found any evidence that a violation
of a mandatory safety standard was a contributing factor, he

was authorized to issue a citation. It is also clear that
during his investigation of the methane ignition, he conducted
a physical inspection of the area, including the equipment.
Given these circumstances, I cannot distinguish this case
from the Monterey case. While it is true that in Monterey,
an investigation as to whether or not the mine operator was
in compliance with its roof control plan was closer to a
"spot inspection," in both instances, I believe that the
inspector was performing an enforcement function.
In the case at hand, Inspector Walker confirmed that
after terminating the§ 103(k) Order at 9:50 a.m., he left
the underground portion of the mine and spent the rest of
his time on the surface doing "normal paperwork" while waiting
for the second shift to come to work. The second shift
reported in at approximately 2:00 p.m. and were then available
for interview with respect to the methane ignition (Tr. 23-26).
While I believe that a Union representative must be
compensated for the productive time spent walking around
with an MSHA inspector, I do not believe that an operator is
obligated to compensate the representative for "waiting around"
with an inspector while he catches up on unrelated paperwork
while awaiting the arrival of mine personnel to interview.
After careful consideration of all of the testimony
and evidence adduced in this case, including the arguments
made by the parties in support of their positions, I conclude
and find that on June 20, 1983, Inspector Walker's visit to
the mine in question constituted an inspection and investigation
of the mine much akin to a spot inspection, and that the
walkaround representative was entitled to be compensated
for the time spent accompanying the inspector during the
actual performance of duties connected with his investigation
and inspection.
4

In view of the foregoing findings and conclusions, I
conclude that the petitioner here has established a violation
of § 103(f), and the citation IS AFFIRMED.
Negligence
The parties have advanced no arguments concerning negligence.
However, I conclude that the respondent's refusal to pay
the walkaround representative was prompted by its interpretation
of the scope of § 103(f), and that respondent's intent was
to test the law. Given these facts, I cannot conclude that
there was any negligence in this case.
·

Size of Business and Effect of Civil Penalty on Respondent's
Ability to Remain in Business.
The parties have stipulated that the respondent is a
large mine operator and that the proposed civil penalty will
not adversely affect its ability to remain in business.
I adopt these stipulations as my findings and conclusions.
History of Prior Violations
The parties have stipulated that the respondent has an
average history of prior violations, and I adopt this as
my finding on th1s issue.
Gravity
The parties have advanced no arguments concerning the
gravity of the violation, and I conclude that it was nonserious.
Good Faith Abatement
The record reflects that the respondent has paid the
walkaround representative, and the parties have stipulated
that the violation was abated in good faith, I adopt this
as my finding on this issue.
Penalty Assessment_ and Order
MSHA's initial proposed civil penalty assessment of $20
for the violation in question seems reasonable in the circumstances
and I accept it.
Respondent IS ORDERED to pay the $20 civil
penalty assessment within thirty (30) days of the date of
this decision.

-~~a~

~ ~~y: -Koutras

Administrative Law Judge

Distribution:
George D. Palmer, Esq., U.S. Department of Labor, Office of the
Solicitor, 1929 9th Ave., South, Birmingham,· AL 35256
(Certified Mail)
Louise Q. Symons, Esq., U.S. Steel Mining Co., Inc., 600 Grant
St., Rm. 1580, Pittsburgh, PA 15~30 (Certified Mail)
/slk

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

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

CIVIL PENALTY PROCEEDING

.

v.

:

Docket No. PENN 84-93
A.C. No. 36-00967-03564
Clyde Mine

BCNR MINING CORPORATION,
Respondent
DECISION
Appearances:

Howard K. Agran, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
B. K. Taoras, Esq., Kitt Energy Corporation,
Meadow Lands, Pennsylvania, for Respondent.

Before:

Judge Melick

This case is before me npon the petition for civil penalty
filed by the Secretary of Labor pursuant to § 105(d) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801, et seq.,
the "Act" for two violations of the regulatory stand?trd at 30
C.F.R. § 75.200. The general issues before me are whether the
BCNR Mining Corporation (BCNR) has violated the regulations as
alleged, and if so, whether those violations were of such a nature as could significantly and substantially contribute to the
cause and effect of a mine safety or health hazard, i.e. whether
the violations were "significant and substantial." If violations
are found, it will also be necessary to determine the appropriate
civil penalty to be assessed in accordance with section llOCi) of
the Act.
The parties have submitted the case on a stipulation of
facts and have agreed that the general issues may be resolved
upon these facts and the determination of a specific legal issue,
i.e. whether Safety Precaution No. 20 of Respondent's approved
roof control plan applies to certain cross bars or beams that had
been installed as roof support prior to the incorporation of Safety Precaution No. 20 into the approved roof control plan. It is
stipulated that the cross bars or beams cited had in fact been
installed before the incorporation of Safety Precaution No. 20
into the approved roof control plan. Safety Precaution No. 20
reads as follows:

"On haulageways, all crossbars or beams shall be
installed with some means of support that will prevent
the beam or crossbar from falling in the event the supporting legs are accidentally dislodged."
The facts as stipulated by the parties are as follows:
I.

Factual Background

On November 18, 1983 MSHA Inspector Thomas H. Devault, while making an inspection of the Clyde Mine,
noticed approximately 50 steel beams between the 16
Flat overcast and the upright pump 200 feet inby the
overcast which were not secured from falling in the
event support legs to the beams would be dislodged. As
a result, he issued Citation 2105238 at 8:35 a.m. on
November 18, 1983 to the Clyde Mine.
On December 2, 1983, while on an inspection checking the abatement of the citation which had been issued
on November 18, 1983, Inspector Devault issued a second
citation as the result of his observing approximately
30 steel beams located at a point starting 500 feet
inby the pump and continuing inby for a distance of 300
feet which were not secured from falling in the event
that support legs would be dislodged. Thus, Citation
2105239 was issued at 11:15 a.m. on December 2, 1983.
The said citations were issued pursuant to Section
104Ca) of the Act for "significant and substantial"
violations of 30 C.F.R. § 75.200, for violation of safety precaution #20 of the Approved Roof Control Plan
which states as follows:
"On haulageways, all crossbars or beams
shall be installed with some means of support
that will prevent the beam or crossbar from
falling in the event the supporting legs are
accidentally dislodged."
A copy of the roof control plan dated September
13, 1982 is attached hereto, made a part hereof and
marked Exhibit "A".
Citation 2105238 was terminated on December 2,
1983 after the mine inspector observed that wire ropes
had been installed as straps to provide additional support to the cited steel beams. Citation 2105239 was

2~~35

terminated on January 19, 1984 when a mine inspector
observed that all cited steel beams had been adequately
secured and prevented from falling in the event that
their ~upporting legs were knocked out.
Safety precaution #20 was adopted by Approved Roof
Control Plan on October 7, 1976. Prior to that ·date,
the safety protection afforded by the said precaution
was afforded only by Safeguard l GFM which was issued
to the Clyde Mine on August 14, 1973. The said safeguard provides as follows:
"Nume~ous crossbars, steel rails and I beams
supported by posts or cribs which could be
dislodged in the event of a derailment of a
trolley locomotive or a trip of mine cars
were observed along the track haulageways of
this mine. Cabs or other suitable means of
protecting the operators of all trolley locomotives from falling material in the event of
a derailment shall be provided at this mine."

On December 16, 1973, the Mine Operator implemented a policy of abating the conditions cited in the
said Safeguard by installing root straps to prevent the
"crossbars, steel beams and I beams" from falling.
This method of abatement was approved by MSHA as a
"suitable means of protecting • • • operators" as required by the Safeguard.
The haulageways requiring strapping extended approximately 12 miles. Following issuance of the safeguard and the Operator's intiation [sic] of abatement
efforts in December 1973, citations alleging violations
of the Safeguard were extended and/or modified about
100 times as strapping operations continued.
However, on December 15, 1982 a Section 104(b)
Order was issued to the Mine for its alleged failure to
continue the strapping operation in a timely fashion.
That Order was contested and is presently the subject
of a notice of contest and penalty contest case under
Docket Nos. Penn 83-56-R and Penn 83-139 before Judge
William Fauver. That Order was terminated on April 19,
1983.
Thereafter, three § 104(a) citations were issued
to the Clyde Mine alleging violation of Safety Precaution #20 of the Approved Roof Control Plan. Those cita-

tions are: Citation 2104665 issued on April 21, 1983,
Citation 2104668 issued on May 2, 1983 and Citation
2104672 .issued on May 11, 1983. Following their issuance, the mine sat idle for a period of months before
Citations 2105238 and 2105239 were issued.
Additional facts concerning the conditions alleged
as violations are as follows:
The entry in which the beams are located contains
the track haulage road. The entry varies from approximately 16 to 20 feet wide. Men, equipment, and supplies are hauled through this area by means of an electric trolley haulage system. The trolley wire is located on the right side of the entry (looking inby) and
is approximately 2-3 feet from the rib. Approximately
3 feet of clearance is provided between the track and
the rib on the tight side and about 4-5 feet on the
wide side. The height of the entry from floor to bottom of beams is approximately 6 feet.
The track is
generally the same height as the mine floor.
The beams are lengths of steel track set against
the roof crosswise to the direction of the entry. Wooden posts are set under the ends of the beams to hold
the beams and the roof above them. The beams are approximately 15-20 feet long and are spaced approximately 5 feet apart.
The trolley locomotives and trip cars which move
on the tracks of the track haulage derail from time to
time. When they do, they can strike (and have struck)
the wooden posts supporting the overhead beams causing
the overhead beams to fall, posing a serious hazard to
locomotive operators and any other miners in the vicinity.
When the bea~s were originally installed along the
roof of the track haulage entry, some of them were supported by being set on a support system fastened into
the rib near the roof. However, over time, due to ordinary weathering, the coal rib and roof suffered sloughage and fell making the original support system inadequate. Wooden posts (legs) were then set from the
floor to support the steel beams.
This process occurred over a period of many years.
The haulage entry was initially drawn (mined) approximately 40 years ago and the track haulage was installed

'"7

0 '}
.i:~u0

shortly thereafter. The beams were installed over a
course of years as roof conditions along the haulage
changed. By 1970, the original support for the beams
had been replaced by the wooden legs.
II.

Facts with Respect·to the Size of the Operator
and History of Prior Violations

Respondent, BCNR Mining Corporation and its Clyde
Mine is an Operator which as of March 21, 1984, was
producing 196,923 production tons of coal annually.
During the two year period preceding issuance of
Citation 2105238, 678 violations were issued to the
Clyde Mine. During the two year period preceding issuance of Citation 2105239, 683 violations were issued to
the Clyde Mine.
It may be presumed, based upon the legal issue presented by
the parties that the Respondent's position is that the roof control plan approved on October 7, 1976, applies only prospectively
in the sense that pre-existing conditions, even though in violation of the plan, are exempt from enforcement action under the
plan. Respondent does not, however, cite any legal impediment to
the enforcement action for conditions_which continued to exist
after the effective date of that plan. The violations cited were
alleged to have occurred well after the effective date of the
roof control plan.
I am indeed baffled by Respondent's contention, for even if the roof control plan had incorporated a criminal violation the enforcement action herein was directed to conditions existing after the effective date of the plan and therefore
would not have been barred by the Constitutional provisions against ex post facto laws. Accordingly, I reject the Respondent's unsupported argument and affirm the "significant and substantial" violations cited herein. Considering the stipulated
facts in light of the criteria under Section llOCi} of the Act, I
find that the proposed penalties of $126 for each citation are
appropriate.

')·-0') 3·. 8

ORDER
Citation.Nos. 2105238 and 2105239 are affirmed. The BCNR
Mining Corporation is hereby ordere to pay civil penalties of
$252 within 30 days of the date of t
decisio •

Gary Meil"ck
Assistai~ Chief
Distribution:
Howard K. Agran, Esq., Office of he Solicitor, U.S. Department
of Labor, 14480 Gateway Building· 3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
B. K. Taoras, Esq., Kitt Energy Corporation, Managing Agent for
BCNR Mining Corporation, 455 Race Track Road, P.O. Box 500, Meadow Lands, PA 15347 (Certified Mail)
/nw

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

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

22041

CIVIL PENALTY PROCEEDING
Docket No: CENT 84-15-M
A.C. Mo. 41-01007-05503

v.

Corpus Christi Mill

.

·N.L. BAROID-DIV/NL
INDUSTRIES, INC.,
Respondent

DECISION
Appearances:

Jack F. Ostrander, Esq., Office of the
Solicitor, U.S. Department.of Labor, Dallas,
Texas, for the Petitioner;
J.D. Fontenot, Safety and Health Manager,
N.L. Baroid Division, NL Industries, Inc.,
Houston, Texas, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the
petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
820(a), seeking civil penalty assessments in the amount of
$80 for four alleged violations of certain mandatory safety
standards found in Part 55, Title 30, Code of Federal
Regulations.
The respondent filed a timely answer and contest, and
pursuant to notice, a hearing was held in Corpus Christi,
Texas, on July 12, 1984. The parties waived the filing of
post-hearing briefs. However, I have considered their oral
arguments made on the record during the course of the
hearing.
Issues
The principal issues presented in this proceeding are
(1) whether respondent has violated the provisions of the

Discussion
All of the citations issued by Inspector White were
section 104(a), non "S&S" violations, and they are as
follows:
Citation No. 2232152, issued August 16, 1983, citing a
violation of 30 CFR, 55.9-87, and the condition or practice
cited states:
The hyster forklift was provided with a backup
alarm. The alarm was not in working order.
Citation No. 2232254, issued August 16, 1983, citing a
violation of 30 CFR 55.9-1, and the condition or practice
states:
Records were not made available when requested as
to the preshif t inspection on the mobile
equipment.
Citation No. 2232153, issued August 171 1983, citing a
violation of 30 CFR 55.14-1, and the condition or practice
cited states:
The pinch point on the head pulley of the short
belt conveyor <recirculating) was not guarded.
The head pulley was located next to the catwalk.
No one was observed in the area.
Citation No • .2232155, issued on August 17, 1983, citing
a violation of 30 CFR 55.12-8, and the condition or practice
states:
The power conductors for the overhead hoist in the
machine shop had pulled out of the metal housing
and was secured by a small wire, thus not properly
housed. No one was observed using the hoist.
MSHA Inspector Robert W. White, testified as to his
background and experience which includes past employments as
a mine superintendent, and service as a Federal mine
inspector since 1976. He described the respondent's Corpus
Christi mill as a free-standing mill which processes raw
barite through a process which includes grinding, milling,
and screening of the raw material which is trucked to the
facility. The processed barite is stored in silos and then
is sold in bulk or as a bagged product (Tr, 10-12).

Act and implementing regulations as alleged in the proposal
for assessment of civil penalty filed, and, if so, (2) the
appropriate civil penalty that should be assessed against
the respondent for the alleged violations based upon the
criteria set forth in section llOCi) of the Act. Additional
issues raised are identified and disposed of where
appropriate in the course of this decision. Included among
these issues is the question as to whether the cited
violations were "significant and substantial."
In determining the amount of a civil penalty
assessment, section llOCi> of the Act requires consideration
of the following criteria: Cl> the operator's history of
previous violations, (2) the appropriateness of such penalty
to the size of the business of the operator, (3) whether the
operator was negligent, (4) the effect on the operator's
ability to continue in business, (5) the gravity of the
violation, and (6) the demonstrated good faith of the
operator in attempting to achieve rapid compliance after
notification of the violations.
Applicable Statutory and Regulatory Provisions
1.
The Federal Mine Safety and Health Act of 1977;
Pub. L.95-164. 30 U.S.C. §801 et. s7q

u.s.c. §820(1).

2.

Section llOCi) of the 1977 Act, 30

3.

Commission Rules, 29 C.F.R. §2700.1 et ~

The parties stipulated that the respondent's Corpus
Christi mining operation is small 1n scope and that it
consists of a milling and grinding operation processing
approximately 150,000 tons of barite annually, utilizing
40,000 man hours. The parties also agree that as a
corporate operation, the respondent operates an additional
10 mining operations, and employs approximately 300 workers
in all of its operations (Tr. 7-8).
The parties stipulated further that the respondent's
mining operations at the Corpus Christi facility affects
interstate commerce and that the respondent is subject to
MSHA's enforcement jurisdiction.
The parties stipulated to the authenticity and
admissibility of their respective exhibits CP-1 through P-5,
and R-1 through R-4.).

~342

Inspector White confirmed that he conducted inspections
at the mine on August 16 and 17, 1983, and that he issued
the citations in question and served them on respondent's
safety representative Bob Spradling {Tr. 12).
With respect to citation No. 2232152, which he issued
because of an inoperative back-up alarm on a forklift,
Mr. White confirmed that the machine was equipped with an
alarm but when he had the operator put the machine in
reverse, the alarm did not sound. The machine was not
tagged out, and Mr. White did not observe it in actual use.
The machine w~s parked outside of the machine shop, and he
believed the machine was used periodically as needed to
transport machinery and equipment in and out of the shop,
and when it backed out of the shop the rear yiew at the
corner of the shop would be obstructed. The machine was
equipped with a canopy, with corner support posts, and
Mr. White described it as a forklift which is larger than
others which are in use at the facility (Tr. 13-14).
Mr. White did not know how long the backup alarm had
been inoperative, and he stated that when he asked for the
inspection report record to ascertain how long it had been
inoperative, Mr. Spradling couldn't produce it (Tr. 14-16).
~

With regard to citation 2232154, Inspector White
confirmed that he issued it after the respondent's
representative failed to produce any record concerning the
fact that the hyster forklift had been preshifted and found
to have had an inoperative backup alarm. He confirmed that
no records have to be kept if no equipment defects are
noted, and he indicated that different people use the
equipment, but that one equipment operator told him that he
did not check the forklift (Tr. 18-19). The citation was
abated after the operator's representative noted his records
that the backup alarm was inoperative (Tr. 19).
With respect to citation 223215, concerning the hoist
power conductors, Mr. White stated that bushings on the box
where the wires entered had been pulled out, and while the
three or four small wires entering the box through the metal
housing were insulated, he believed they were subject to
possible breakdown of the insulation, thereby presenting an
electrical or short hazard CTr.22). The condition was
corrected by installing a housing grommet, which kept the
wires from pulling out. The grommet also served as added
protection for the wires (Tr. 23).

2343

Mr. White confirmed that the hoist was not being used,
but that the power was on, and a mechanic advised him that
while the hoist is not used for long periods of time, there
are days· when it is used quite a bit (Tr. 23). Mr. White
could not state how long the condition had existed, and he
confirmed that the small wires were secured by another piece
of wire (Tr. 24).
On cross-examination, Inspector White conceded that
when he arrived at the plant on August 16, it was not in
normal operation and no materials were bring processed. He
confirmed that the facility was on a hurricane alert and was
in the proce~s of carrying out several phases of shutting
down because of the hurricane alert (Tr. 26).
Mr. White confirmed that the cited forklift was in the
yard and not in the shop when he inspected it, and he
conceded that he did not consider that any hazards were
presented by the forklift violation (Tr. 27). He conceded
that while the forklift in question has a vertical rollover
bar which does not obstruct the operator's view, the
operator's view to the rear while backing out of the shop
would be obstructed because he could not observe anyone
around the shop corner (Tr. 34). Mr. White also confirmed
that the machine was not being operated when he observed it,
and while the respondent got someone to operate it, the
operator was not backing out of the shop, and he did not
have an obstructed view at the time he issued the citation
(Tr. 34-35). Mr. White conceded that the only time the
cited standard requires a backup alarm is when the operator
has an obstructed view to the rear (Tr. 36). He also
conceded that the machine itself would not obstruct the
operator's view in any way, and that he could turn in all
directions and see behind the machine (Tr. 38).
With regard to the inspection report citation,
Inspector White indicated that after he cited the forklift
violation, he asked to see a copy of the inspection reports
concerning the mobile equipment inspections, and when asked
whether he requested the particular report on the forklift,
or all reports, he replied "I don't recall for how long a
period I asked for.
It could have been that day or that
week. I just asked to see the records on the mobile
equipment checks" (Tr. 39).
Inspector White stated that he was provided with an
"operator's report" concerning "crushing and stuff like
that" (Tr. 39). He conceded that "it's left to the operator

2344

as to what type of forms he uses", and he further conceded
that no particular prescribed forms are required to be
maintained for equipment defects. When shown a copy of
respondent's exhibit -3, Mr. White confirmed that he saw
such forms, but he indicated that such forms are proper
"production reports" under.section 55.18-1, and that he
advised the respondent's representative that "it looked like
a production report rather than a mobile equipment
checklist" CTr.41). However, Mr. White also indicated that
had the "bad forklift alarm" been noted on the face of the
exhibit in question, he would have accepted it as compliance
with the cited standard (Tr. 42).
With regard to the wire conductor citation, Inspector
White stated that the hoist was approximately 8-1/2 feet off
the ground, and that he observed no rubber outer covering on
the wires which went through the hoist housing, but just the
wire holding the other small wires together. He could not
state whether there was any stress on the wires, and
confirmed that he issued the citation because of the lack of
a proper bushing to secure the wires as they entered the
housing (Tr. 44-46).
In response to certain bench questions, Inspector White
indicated that he assumed the cited forklift would be used
to transport and protect equipment from the hurricane, and
that it is normally used to move motors and parts around,
and that he did not believe that it is normally used to
store or move the bagged materials which are processed at
the plant. He indicated that other forklifts are used for
that purpose (Tr. 49). When asked to explain why he issued
the citation, he summed it up as follows (Tr. 50):

*

*

*

*

*

*

Now, let's assume you've got this
forklift parked, and the operator decides not
to use it that day at all, then you come on
the scene and decide to inspect it, and you
crank it up and find that the backup alarm is
inaudible. That's essentially what happened
here, isn't it?
THE WITNESS:

Yes, sir.

ADMINISTRATIVE LAW JUDGE:
a violation?

2315

Would that be

*

THE WITNESS: The equipment was ready to
be operated. In other words, I had asked
them what equipment was subject to be ran and
what equipment was being operated during the
course of a day, and the only thing they told
me was that they had one front-end loader
that was out of service, that they knew it
needed, I think it was brakes, and they
weren't going to let anybody operate it. To
me that was fine and •••
ADMINISTRATIVE LAW JUDGE: So based on
what you determined, they had some that was
tagged out and some that wasn't, and this
wasn't?
THE WITNESS: Yes, sir, that's right,
from what they told me.
Torn Roe, respondent's plant manager, confirmed that at
the time of the inspection the plant was under phase three
of a hurricane preparation, and that the plant was in the
process of being secured., He described the preparations
that were being conducted, and conf irrned that the plant was
not in production (Tr. 59-61). He confirmed that Hurricane
Alicia made landfall in the Galvest6n area on August 17th.
He also confirmed that he knew the cited forklift· had an
alarm which was out, but it still was used to secure plant
equipment (Tr. 63). At the time the citation was issued, a
micro-switch required to repair the alarm had already been
ordered, but not delivered by the supplier (Tr. 63). Rather
than wait, a completely different alarm was purchased and
installed that same evening, and it was in operation the
next day (Tr. 64). He confirmed that all forklifts at the
plant are equipped with alarms, and this is done for the
safety of all employees (Tr. 64). Mr. Roe stated that the
forklift in question had been tagged out, but that it was
put back in service because it was absolutely necessary to
secure plant equipment (Tr. 65).
With regard to the reporting citation, Mr. Roe stated
that previous MSHA inspectors had accepted the daily
reports, such as exhibit R-3, and any defects in. equipment
are noted on these reports (Tr. 65). He explained how the
reports are prepared (Tr.66).
With regard to the wire conductor citation, Mr. Roe
explained as follows (Tr. 67):

')"

16'

1

i-LI ·

Q.
Okay, did you have personal knowledge
that the grommet had come out of the housing?
A.
I had no personal knowledge myself, but my
maintenance people did.

Q.

Had they attempted to correct?

A.
Right. They told me that the rubber grommet that
holds the wires into the housing, the least little pull
will pull the rubber grommet loose. Our electrician
had been notified, and he had checked it, and said he
had to change types of grommet because that grommet
just would not hold, so a wire was attached to that
cable to hold it up to keep anybody from pulling the
cord to keep the insulation from being broken on
existing wires.

Q.

And who installed that wire?

A.

It was factory.

Q.

No, the extra wire to keep from •••

A.
Oh, maintenance
plant.

personnel~at

the Corpus Christi

Q.

Was this under the direction of the electrician?

A.

No, huh-uh.

Q.
Okay, the electrician evidently didn't feel like
there was a hazard because he didn't do anything, is
that right?
A.
No, he didn't do anything. He said he would have
to order a different type of grommet for it.
Q.

Okay, was that grommet ordered?

A.

It was.

Q.

Was it installed?

A.

It was installed.

On cross-examination, Mr. Roe confirmed that the cited
forklift has a rated lifting capacity of 6,000 pounds, and

·it

would be classified as a large forklift (Tr. 69). He
identified exhibit R-4 as an equipment checklist prepared to
abate the reporting citation, and indicated that such a form
was not previously used (Tr. 70). He conceded that the
operational report, exhibit R-3, shown to the inspector, did
not note that the forklift.alarm was inoperative, but he
insisted that it would have been recorded on previous
operational reports which he did not have with him at the
hearing CTr. 71). Mr. Roe stated that while he gave
Inspector White only the daily record for the day he was
there, exhibit R-3, all of his records were available in the
office {Tr. 82). He later indicated that he gave the
inspector all of the file, and not just the one report (Tr.
90). Mr. Roe explained further as follows (Tr. 74-77):
ADMINISTRATIVE LAW JUDGE: Well, now,
did you ask Mr. White what he had in mind
when he issued you the citation for not
providing these records?
THE WITNESS: When we provided the
records he looked them over and first stated,
he said, "Well, I can accept these."
ADMINISTRATIVE LAW JUDGE:
records?
THE WITNESS:

Which

The ones you have in your

hand.
ADMINISTRATIVE LAW JUDGE:
one, R-3?
THE WITNESS:

Just this

Right.

ADMINISTRATIVE LAW JUDGE: But you
provided no other ones prior to this time?
THE WITNESS:

*

*

No, sir.

*

*

*

ADMINISTRATIVE LAW JUDGE: All right,
with that I assume that had he found on this
one a defect noted on the forklift, he would
have acceptd that?
THE WITNESS: He didn't state that. He
said he would accept these records at first,

2318

and then during the conversation he kept
going through there and he said, "No, I don't
believe I can accept these records because I
don't think any other inspector would accept
them," and therefore he wrote the citations.
ADMINISTRATIVE LAW JUDGE: Well, what
was his reason for not accepting them, do you
remember?
THE WITNESS: His reason that he gave us
was that any other inspector would not accept
them.
ADMINISTRATIVE LAW JUDGE: For what
reason would any other inspector not accept
them?
THE WITNESS: He didn't say. He did not
say, "Because the forklift is not listed on
here I cannot accept these." He said, "I
cannot accept these because I don't think any
other inspector would accept them."
ADMINISTRATIVE LAW JUDGE: What did you
provide to the Inspector, to Mr. White, to
have this citation terminated or abated?
THE WITNESS:
three.

The additional, number

ADMINISTRATIVE LAW JUDGE:
you have in your hand?
THE WITNESS:

Which is what

Yes, sir, R-4.

ADMINISTRATIVE LAW JUDGE:
was that provided to him?

R-4.

When

THE WITNESS: We started this one on the
twenty-second, and he was supposed to be back
that same week, I believe, but he got tied up
and couldn't make it back. He came back the
next morning, to abate what we've got on, and
he was supposed to come back the following
week, and it wa~ several days before he got
back.

ADMINISTRATIVE LAW JUDGE: When he came
back the next day, he abated the forklift
citation because you had put an alarm on it,
is that correct?
THE WITNESS:

Yes, sir.

ADMINISTRATIVE LAW JUDGE:
abate this one?

How did he

THE WITNESS: I don't know. I don't
know of an abatement made on that.
ADMINISTRATIVE LAW JUDGE:
September twenty-second.
THE WITNESS:

It says

That's when he came back.

ADMINISTRATIVE LAW JUDGE: But this form
that you're holding in your hand, which is
Exhibit R-4, was that a form that was used
prior or at the same time he inspected?
THE WITNESS: No, sir, this is a form
that we started using by his request.
ADMINISTRATIVE LAW JUDGE:
that form?

Who designed

THE WITNESS: He told us what we should
have on there, and we designed it ourselves.
Mr. Roe pointed out that equipment defects are noted on
the daily reports, and he pointed to the fact that exhibit
R-3, contains a notation with respect to a Caterpillar
machine (Tr. 78). He insisted that he provided Mr. White
with his records, and that he gave him his reports for
mobile equipment, but that Mr. White would not accept them
as compliance records (Tr. 79).
Bob Spradling, respondent's safety supervisor,
confirmed that he accompanied Inspector White on his
inspection rounds, and he conceded that the cited forklift
had been out of service the day before, but that it was put
back in service because of the hurricane emergency. He
stated that the respondent had not been previously cited for
mobile equipment violations (Tr. 93). He testified that he
conducts regular safety meetings, and that equipment which
is found to be defective is always taken out of service (Tr.
9 4).

Mr. Spradling stated that he gave Mr. White the daily
operating report, as well as the file for the month, and he
indicated·that Mr. White did not ask for the specific report
for the forklift, but only generally wanted to see mobile
equipment reports (Tr. 95)a He confirmed that approximately
16 to 20 employees normally work at the plant in question
(Tr. 96).
Mr. Spradling stated that he had not previously noticed
the grommet pulled out of the hoist connector. However, he
indicated that maintenance personnel were aware of it and
ordered a replacement part. In his opinion, the wires did
not present any hazard because they were individually
insulated and no bare wires were present. The wire which
held the insulated wires together was there to keep tension
off the hoist cable, and this was done to eliminate any
safety hazard (Tr. 98).
Mr. Spradling stated that the remainder of the week of
August 16, 1983, was spent undoing what was done to secure
the plant from the hurricane, and that the plant "was
gradually built back up to full capacity by Thursday and
Friday", but was shut down over the weekend (Tr. 104).
Inspector White was called in rebuttal, and he
testified as follows (Tr. 108-110):

Q.
What specifically did you discuss with
him then?
.A.
I asked Mr. Spradling if he could show
me the records where the defective backup
alarm was not working on this mobile
equipment checklist.

Q.
What, if anything, did he tell you at
that time?
A.
He didn't make them available. He
didn't know. He just went and got the
production sheets.

Q.
Now what type of production sheet did he
show you?
A.

The ones over in the control booth.

2351

Q. - Are these the same ones he testified to
previously?
A.

Yes.

Q.
Did he show you a whole month of
reports?
A.

A whole month?

Q.
Yes. He testified he had a whole month
of production reports.
A.
No, he wouldn't have had a whole month.
I don~t recall how many reports that he did
show me. I looked at some reports. I've
never seen the defect list.

Q.
Did you bring up the defect with him
again?
A.
Yes, that was the purpose, yes. That's
what I told him, "I'd iike to see where this
has been reported."

Q.
Did he make any effort at~all to find
the defect in the production reports?
A.
Well, he didn't bring it to me. I don't
know if he looked back through them and found
them or what.

Q.
What happened after you were there with
the records and you told him that you wanted
to see a report of the defects?
A.
That he couldn't make it available, and
I told him that was the reason I issued the
citation, and then we went ahead and did the
inspection on the other pieces of equipment,
and I showed him what I looked for, and as a
recommendation how other people were, told
him how other people were complying with that
standard.

*

*

*

*

*

ADMINISTRATIVE LAW JUDGE: No, I mean
did you issue a citation here because there

*

wasn't a record produced that they had known
about the defect, or did you issue the
citation because the operator was being a
little recalcitrant and uncooperative, and
just didn't make his files available to you?
THE WITNESS: No, sir, that wasn't it.
I issued the deal because there was a defect
that I couldn't, that they didn't make
available, that it was recorded, that's all
CTr. 114).

*

*

*

*

*

*

ADMINISTRATIVE LAW JUDGE: Well, your
intent, Mr. White, in issuing this citation
in here, the failure of the operator to make
it available, was not, or was it, to look at
all of his records on mobile equipment, or
just on this particular forklift?
THE WITNESS: Just -- I wanted to see
his records. When I find a violation on that
particular deal, I want to see that they were
in fact recording the defects On mobile
equipment.
ADMINISTRATIVE LAW JUDGE:
Now, as you
were perusing through the file that he gave
you, did you feel or did you make any
judgments then as to the utility of using
such a form like this, or did you feel that
they probably should have had something over
and above this particular form?
THE WITNESS: I gave them some
suggestions of what I seen. Maybe that was
more of a production report, and it didn't
leave much for the operator.
Findings and Conclusions
Fact of Violations
Citation 2232155. Petitioner has established that the power
conductors for the overhead hoist were not properly housed
or secured and that they were pulled out of the metal
housing and secured with a wire. Section 55.12-8, requires

'1 '~ f .... r
;~ L) tJ ~

that such wires entering through electrical compartments
either have proper fittings or are bushed with insulated
bushings.
In this case, they were held together with a
piece of wire which had been installed by respondent's
maintenance personnel. The citation is AFFIRMED.
Citation 2232154. Section 55.9-87, requires that heavy
duty mobile equipment be provided with audible warning
devices. When the operator of such equipment has an
obstructed view to the rear, the equipment is required to
have either an automatic reverse signal alarm which is
audible above the surrounding noise level, or an observer to
signal when i t is safe to back up.
In defense of the forklift citation, respondent
asserted that since the forklift is not used to load, dump
or haul materials which are processed at the mill, it does
not qualify as "heavy duty mobile equipment" under the cited
standard CTr. 32). The fact that the cited standard is
listed under the general section 55.9 regulatory heading of
"Loading, hauling, dumping", does not mean that equipment
not used for these tasks are excluded from the requirements
of section 55.9-87. Accordingly, respondent's defense is
rejected.
I conclude that the record here supports a
finding that the forklift in question is a heavy duty mobile
piece of equipment.
The forklift in question was provided with a backup
alarm, but it was inoperative. Respondent conceded that the
cited forklift was not put out of service at the time of the
inspection, and that it was to be used to store and secure
material from the hurricane CTr. 57). Mr. Roe confirmed
that the forklift had been taken out of service a week
before the inspection after the backup alarm went out, but
that he had been checking on the switch part which had been
ordered because the forklift was needed (Tr. 90).
Respondent's representative indicated that the
respondent equipped all of its forklifts with backup alarms,
not for compliance with any MSHA requirements, but for the
protection of its employees. The representative agreed that
backup alarms are sensible items, but that in this case
where the backup alarm wasn't working, the parts had been
ordered, and the equipment was being used in an emergency
situation, he was of the view that the backup alarm was of
small consequence (Tr. 119-120).
Inspector White conceded that there was no hazard
presented by the forklift violation, and he admitted that

the machine was parked on the parking lot and that he never
observed it backing out of the shop. He agreed that the
configuration of the machine is such as to not obstruct the
operator's view to the rear, and he admitted that the
operator could turn in all directions and see behind the
machine. Mr. White's only.concern was that the operator
would not be able to see anyone coming around the corner of
the shop if he were to back out of the shop.
Mr. White indicated that the forklift in question is
not used to move or store the bagged materials which are
processed at the plant, and that other types of forklifts
are used for that purpose. He assumed that the cited
forklift would be used to help secure equipment from the
hurricane, and he indicated that it was normally used to
move motors and parts around the plant.
Although it is true that at the precise time that the
inspector viewed the forklift, it was not backing up, the
fact is that when it is in normal use in and around the
plant transporting' equipment and parts, one can logically
assume that it will back in and out of areas after
depositing its load. Mr. Spradling confirmed that the
machine might be used during the day to load out trucks with
pallets and material or during an overhaul which takes place
every two or three months (Tr. 98).~ Since the machine is
equipped with a backup alarm, it makes good sense to insure
that it is operational, and the respondent candidly admits
that this is true. While the respondent has established
that the forklift was not backing out of the shop at the
time the inspector observed it, respondent has not rebutted
the inspector's assertion that when it does back out of a
shop area, the operator can not see around the corner.
After careful consideration of all of the testimony
with regard to this citation, I conclude and find that
petitioner has established a violation of section 55.9-87,
and the citation is AFFIRMED.
Citation 2232154. The inspector here charges that the
respondent violated section 55.9-1, for purportedly failing
to make available certain records as to the pre-shift
inspection on the mobile equipment. The requirements of
section 55.9-1, are as follows:
55.9-1. Mandatory. Self-propelled
equipment that is to be used during a
shift shall be inspect~d by the
equipment operator before being placed

in operation. Equipment defects
affecting safety shall be reported to,
and recorded by the mine operator. The
records shall be maintained at the mine
or nearest mine off ice for at least 6
months from the date the defects are
recorded. Such records shall be made
available for inspection by the
Secretary of Labor or his duly
authorized representative.
Respondent's representative indicated that he was under
the impression that the citation was issued because the
inspector would not accept the company's daily production
reports as preshift inspection reports for mobile equipment.
The representative stated that the backup alarm defect had
been reported a week prior to the inspection of August 16,
1983, and that he only brought to the hearing the daily
report for that date because he believed that this was the
issue presented {Tr. 71-72). He also maintained that the
respondent's records were made available to Inspector White,
but that he would not accept them as preshift inspection
checklists, and that preshift inspection records are not
required unless a defect is noted {Tr. 84).
I believe there is a ring of truth to the respondent's
assertion in this case that Inspector White would not accept
the daily production form as a suitable form for noting
equipment defects. Mr. White admitted that he made some
"suggestions" as to what equipment operators may use as a
"checklist", and he expressed some reservations that the
production report being used at the time of his inspection
"didn't leave much for the operator" (Tr.117). The
respondent here obviously followed the inspector's
"suggestions" and devised a new form which satisfied him.
Further, Mr. White testified that when he asked Mr.
Spradling to show him "the records where the defective
backup alarm was not working on his mobile equipment
checklist", Mr. Spradling produced the production sheets
kept in the control booth {Tr. 108-109). Mr. White couldn't
recall how many reports he was shown, but confirmed that he
looked at "some reports", and he also confirmed that he
explained to Mr. Spradling how other mine operators were
complying with the standard which he cited (Tr. 110).
The citation does not charge the respondent with a
failure to note any defects in equipment.
It simply charges
that the respondent failed to make preshift inspection
records available to the inspector when requested to do so.

Mr. White indicated that had the forklift been tagged out
and not used on August 16, he would not have issued the
citation (Tr. 126). He confirmed that once the respondent
intended to use the machine, it had to be inspected and
reported (Tr. 126). This leads me to conclude that
Mr. White expected to find the defective backup alarm noted
on some "checklist", and when Mr. Spradling failed to
produce such a form, and only produced the daily inspection
records, Mr. White rejected them and issued the citation.
I find Mr. Roe and Mr. Spradling to be credible
witnesses, and I believe their version as to the events
surrounding the records in question. I also believe that
there was a lack of communication between the respondent's
representatives and the inspector, particularly with respect
to precisely what was being charged as a violation. The
inspector's one sentence description of the charge is
lacking in clarity and precision and leaves much to the
imagination.
After careful review of all of the testimony and
evidence ~dduced with regard to the citation, I conclude and
find that the petitioner has failed to establish the fact
of violation by a preponderance of the evidence.
I find
that the respondent has established that it made its
appropriate records available to the inspector at the time
of his inspection. The citation is VACATED.
Petitioner's counsel moved to dismiss citation No.
2232153, on the ground that MSHA could not establish the
fact of violation by a preponderance of any credible
evidence. The motion was granted from the bench, and I
hereby re-affirm this action and VACATE the citation (Tr.
8)•
While there is merit to the respondent's argument that
the plant was preparing to shut down in the face of a
hurricane threat and that the inspector should have left the
employees alone, this fact does not excuse the violations.
However, since the plant was not in production at the time
of the inspection, and in view of the emergency situation
which was presented, I have considered these factors in
mitigating the penalties assessed for the violations which I
have affirmed.
Size of Business and Effect of Civil-Penalties on the
Respondent's Ability to Continue in Business.

'"''':r-7
-~ c) iJ

The parties are in agreement that the respondent
operates ten barite mining operations, some of which are
dormant, and some of which are in active production. They
also agreed that the Corpus Christi Mill is a small grinding
mill operation, operating 40,000 man hours a year,
processing an average of l~0,000 tons a year, and that the
overall company personnel consists of approximately 300
employees CTr. 7-8).
I conclude that the respondent is a small mine operator
and that the civil penalties which I have assessed will not
adversely affect its ability to continue in business.
Good Faith Compliance
The record supports a finding that the violations in
question were timely abated by the respondent, and that the
cited violations were corrected in good faith.
History of Prior Violations
Exhibit P-1, is a computer print-out summarizing the
respondent's compliance record for the period August 1, 1981
through July 31, 1983. That record reflects that the
respondent received a total of seven citations during this
time period, none of which were for~violations of the
mandatory standards cited in this case. Under the
circumstances, I conclude that the respondent has a good
compliance record, and this fact is reflected in the
penalties which I have assessed for the violations which
have been affirmed.
Negligence
I conclude and find that the violations in question
here resulted from the respondent's failure to exercise
reasonable care, and that this amounts to ordinary
negligence. While it is true that the respondent placed the
forklift in service knowing that it had been tagged out for
a defective backup alarm, I have considered the emergency
situation facing the respondent at the time this was done.
Gravity
Mr. Roe indicated that in his 29 years at the
respondent's plant, there have never been any injuries due
to forklift operations, and the last time the plant
experienced a lost-time accident was in 1982, when a man
injured his knee playing basketball during lunch (Tr. 91).

Inspector White conceded that he considered no hazards
presented by the use of the forklift in question (Tr. 27).
Under the circumstances, I find that this violation is
nonserious.
With regard to the hoist conductor citation, I note
that Inspector White considered it to be non-"S&S". Given
the fact that the wires were insulated, somewhat isolated
from anyone's reach and secured with another wire as
support, with no evidence of any breaks or wear in the
insulation, I agree with his finding and find that the
citation is nonserious.
Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llOCi)
of the Act, I conclude and find that the following civil
penalty assessments are appropriate for the citations which
have been affirmed:
Date

30 CFR Section

Assessment

2232152

8/16/83

55.9-87

$20

2232155

8/17/83

55.12-8

$20

Citation No.

Citations 2232154 and 2232153 are VACATED, and the
proposal for assessment of civil penalties as to those
citations is DISMISSED.
ORDER
Respondent is ORDERED to pay the civil penalties
assessed by me for the two citations which have been
affirmed, and payment is to be made to MSHA within thirty'
(30) days of the date of this decision and order. Upon
receipt of payment, this proceeding is DISMISSED.

Distribution:
Jack F. Ostrander, Psq., U.S. Department of Labor, Office
of the Solicitor, 555 Griffin Square, Suite 501, Dallas, TX
75202 (Certified Mail)
Mr. J.D. Fontenot, Manager, Safety and Health, NL Baroid/NL
Industries, Inc., P.O. Box 1675, Houston, TX 77001
(Certified Mail)

/db

"''G'O

;:::. ,j .

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

BECKLEY COAL MINING CO.,
Contestant

v.

OCT 3 i9M

CONTEST PROCEEDINGS
: Docket No: WEVA 83-252-R
: Citation No. 2124098; 8/11/83

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

Docket No: WEVA 83-253-R
Citation No: 2124099; 8/12/83
Beckley Mine

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

CIVIL PENALTY

P~OCEEDINGS

Docket No: WEVA 84-30
A/0 No: 46-03092-03530
Docket No: WEVA 84-31
A/O No: 46-03092-03531

v.
Beckley Mine
BECKLEY COAL MINING CO.,
Respondent
DECISIONS
Appearances:

Edward N. Hall, Esq., Charleston, West
Virginia, for Contestant/Respondent;
Sheila K. Cronan, Esq., Office of the
Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Respondent/
Petitioner

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern two notices of
contests filed by Beckley Coal Mining Company challenging
the validity of two section 104(a) citations, with special
"significant and substantial" findings, issued pursuant to
the Federal Mine Safety and Health Act of 1977, and civil
penalty proposals filed by MSHA seeking civil penalty

2361

assessments for those citations, as well as six additional
citations (non S&S) issued pur~uant to section 104(a) of
the Act.
The parties were afforded an opportunity to file
post-hearing proposed findings and conclusions, and the
arguments presented have been considered by me in the
course of these decisions.
Issues
The issues presented in these proceedings are Cl)
whether the violations occurred as- stated in the citations
issued by the MSHA inspectors, (2) the appropriate civil
penalties to be assessed for any violations which have
been established by the preponderence of the evidence
adduced during the hearing in these proceedings, and (3)
whether several of the citations were in fact "significant
and substantial" as alleged by the inspector who issued
them.
APPLICABLE STATUTORY AND REGULATORY PROVISIONS
1.
30

u.s.c. § 801, et

The Federal Mine Safety and Health Act of 1977,
seg.

2.

Commission Rules, 29 CFR § 2700.1 et. seg.

3.

Mandatory Standards 30 CFR §§ 75.1102 and 77.410.
DISCUSSION

The citations and allegations in each of these
dockets follow below.
WEVA 83-252-R and WEVA 84-30
Section 104(a) "significant and substantial" Citation
No. 2124098, 1:54 P.M., August 11, 1983, cites a violation
of 30 CFR § 75.1102, and the cited condition or practice
is described as follows:
The slippage switch was inoperative on the
southwest No. 1 belt conveyor in that the
belt would not stop when the slippage roller
was blocked.
WEVA 83-253-R and WEVA 84-31.

2362

Section 104Ca) "significant and substantial" citation
No. 2124099, 10:00 A.M., August 12, 1983, cites a
violation of 30 CFR § 75.1102, and the cited condition or
practice is described as follows:
The slippage switch installed on the No. 2
conveyor belt southwest was not working
properly in that the slippage switch device
would not stop the belt conveyor drive when
the belt conveyor would slow down or slip
in the drive rollers.
WEVA 84-31
In this docket, the inspector issued five non-S&S
section 104Ca> citations, all for alleged violations of 30
CFR § 75.1102.
Citation No. 2124155, was issued on August 11, 1983,
and the inspector found that "the slippage switch
installed under the 6 panel section belt conveyor was
inoperative."
Citation No. 2124157, was issued on August 16, 1983,
and the cited condition is described as follows:
The slip switch device installed on the
chestnut mains parallel belt conveyor
would not stop the drive rollers in the
event the belt would start slipping. The
slip switch circuit would only stop the
drive rollers if the belt was completely
stopped.
Citation No. 2124158, was issued on August 16, 1983,
and the cited condition is described as follows:
The slip switch device installed on the 5 panel
section belt conveyor would not stop the drive
rollers in the event that the belt would
start slipping. The slip switch circuit
would only stop the drive rollers if the belt
was completely stopped.
Citation No. 2124159, was issued on August 16, 1983,
and the cited condition is described as follows:

2JG3

The slip switch device installed on the
chestnut mains belt conveyor would not stop
the drive rollers in the event that the
belt would start slipping. The slip switch
circuit would only stop the drive rollers
if the belt load.completely stopped.
Citation No. 2124160, was issued on August 16, 1983,
and the cited condition is described as follows:
The slip switch device installed on the blackburns mains belt conveyor would not stop the
drive rollers in the event that the belt would
start slipping. The slip switch circuit would
only stop the drive rollers if the belt was
completely stopped.
Stipulation
The parties stipulated to the following (Tr. 8-9):
1.

The contestant/respondent owns and
operates the mine where the citations
in question were issued.

2.

The contestant/respondent is subject
to the jurisdiction of the Act.

3.

The presiding administrative law judge
has jurisdiction to hear and decide these
cases.

4.

The inspectors who issued the citations in
these proceedings are duly authorized
representatives of the Secretary of Labor.

5.

Copies of the citations issued by the
inspectors in these proceedings exhibits
CG-2, and G-5) including all extensions of
the abatement times and terminations,
exhibits CG-2, and G-5 through G-19) may be
admitted to establish that they were
properly issued and served, but not to
establish the truth of the conditions or
practices recited therein.

6.

Payment by the respondent of the civil
penalties assessed in these proceedings

will not adversely affect the respondent's
ability to continue in business.
7.

Respondent's annual coal production for the
subject mine at the time the citations were
issued was approximately 722,300 tons.

8.

The subject mine liberates approximately
three million cubic feet of methane per
24-hours.

9.

The subject mine employs approximately 490
miners on the surface and underground.

10.

Respondent/contestant concedes and admits
that the conditions or practices cited by
the MSHA inspectors in citation 2124098 and
2124155 constitute violations of the cited
mandatory safety standard section 20 C.F.R.
§ 75.1102.

MSHA's Testimony and Evidence-Docket No. WEVA 84-31
MSHA inspector Billy P. Sloan testified that he is an
MSHA coal mine electrical inspector, and that he has
served in this position since June, 1971. He confirmed
that his duties include the inspection of underground and
surface mines for electrical and mechanical hazards, and
he testified as to his background and experience in the
mining industry, including his experience and training as
a mine electrician. He confirmed that he was familiar
with the Beckley Mine, and he described it as a slope and
shaft mine with eight working sections. He confirmed that
coal is.mined with continuous miners, and that the coal is
transported out of the mine to the surface by a belt
conveyor system encompassing some ten to twelve miles of
conveyor belts. He also confirmed that the belt conveyors
are used only for the removal of the mined coal and that
they are not used as designated man-trips or for the
movement of supplies and materials.
Inspector Sloan confirmed that his inspection of the
mine began on August 11, 1983, and that he was part of two
MSHA inspection teams dispatched to the mine as a result
of a safety complaint received in his district off ice from
the UMWA district safety department. He also confirmed
that he was accompanied on his inspection by an MSHA
ventilation specialist, a member of the mine safety
committee, and a representative of mine management's
safety department (Tr. 10-23).

2365

Inspector Sloan identified exhibit G-3, as a drawing
indicating a typical belt conveyor drive with two drive
roller~ and a head roller dumping on another belt (Tr.
25), and using that diagram, he explained how the sequence
switches used to automatically start and stop the drive
mechanism for the No.2 belt conveyor are supposed to
function.
He confirmed that the citations deal with
slippage switches, but indicated that while the two
switching devices "physically can be the same", they serve
different purposes in the belt control circuit (Tr. 30).
Mr. Sloan stated that the citations were issued
because of the manner in which the slippage switches were
connected in the circuits he cited. Since the cited
belts could be started and stopped with the slippage
switches, he believed that they were wired incorrectly. A
correctly wired slippage switch would not permit the belts
to stop and start by means of the slippage switches (Tr.
31). When asked whether it was illegal to start and stop
the belt by means of ~ slippage switch, he replied "the
whole idea behind the violations themselves is if the slip
switch is wired into the control circuit properly, you
can't do that" (Tr. 31).
Mr. Sloan identified exhibit G-4, as a wiring diagram
depicting the switch control circuit, and he stated that
the diagram was issued by the Continental Conveyor Company
in 1960 before the present law was passed (Tr. 62). He
used the diagram "to illustrate the manner in which a slip
switch should be installed in a control circuit to
function the way that I think it should function" (Tr. 34).
He also indicated that he intended "to show what would
happen if certain things were eliminated from this
diagram" (Tr. 34).
Mr. Sloan confirmed that approximately 20 belt
drives and slip switches were inspected by MSHA, that they
were constructed by different manufacturers, and
respondent's counsel asserted that the citations issued by
Mr. Sloan were "abated" by the respondent re-designing the
slippage switch circuit to conform to Mr. Sloan's opinion
as to how they should be wired (Tr. 37). Mr. Sloan also
confirmed that none of the cited switching devices were
taken apart, and that he determined and concluded that
they were improperly wired because they did not perform
the way he believed they were intended to perform at the
time they were tested (Tr. 39). Aside from changing out
slippage switches which may have been faulty, Mr. Sloan

2366

confirmed that the control circuits were re-wired in a
manner which he accepted as abatement (Tr. 40). He
explained how he believed the slippage switches should
function if properly wired (Tr. 40-43).
With regard to Citation No. 214155, Inspector Sloan
confirmed that the slippage switch was tested by the
maintenance foreman pinching the roller between the roller
framework and the roller itself, and that he did this at
Mr. Sloan's request. Mr. Sloan indicated that the test
was intended to induce the symptoms of a belt slippage,
and that when this was done, the slippage switch should
have been activated, thereby shutting down the belt drive
mechanism and stopping the belt altogether (Tr. 25).
Using a diagram, exhibit G-3, Mr. Sloan began to explain
how he tested the belt to determine whether the slippage
switch was operative. Respondent's counsel pointed out
that since the switch was in fact inoperative, and the
respondent admitted this, the validity of the test to
establish that the other cited slippage switches were also
inoperative is suspect (Tr. 27-28).
Mr. Sloan testified that he tested the Hawkeye solid
state slippage switch on the 6 panel section belt conveyor
by asking the maintenance foreman, Clyde Bare, to stop the
belt roller where the slippage switch was connected to,
and that Mr. Bare did this by inserting a long roof bolt
or a piece of wood between the roller and the conveyor
frame. When the roller was completely stopped, the belt
conveyor drive mechanism started to slow down, and when
Mr. Bare removed the device used to stop the roller, the
drive mechanism on the conveyor drive "took off again".
He then asked Mr. Bare to test it again, and when Mr. Bare
removed the testing device, the belt started up again.
Mr. Sloan indicated that he instructed Mr. Bare to remove
the testing device before the conveyor came to a complete
stop, and while it was "coasting", it started up again
(Tr. 44).
Mr. Sloan asserted that Citation No.214155 "contained
exactly the same defect that the remaining ones contained"
(Tr. 45).
He also asserted that the four remaining cited
belts were all tested while the belts were moving, and
they were tested by means of a bar inserted between the
slippage switch rollers and the belt conveyor structure.
However, Mr. Bare was not with him when these belts were
tested, and Mr. Sloan indicated that another maintenance
foreman, Arnold Hill, was with him on "some of them" (Tr.
46-47).

2367

Mr. Sloan stated that the intent of the standard
requiring slippage switches is that in the event of a belt
"hang up" or slippage, friction could be encountered in
the drive rollers, and the switches are intended to stop
the belt. He also indicated that the purpose of the tests
was to simulate a belt slippage by interrupting the normal
speed of the belt, thereby triggering the switch circuits
to take care of the slippage problem (Tr. 49). Since the
test on the 6 panel slippage switch resulted in the
failure of the switch to function properly in that it
failed to keep the belt drive mechanism shut down, he
issued Citation No. 214155 (Tr. 50). He was of the view
that the coridition would result in smoke being generated
by the friction- between the belt and the driver (Tr. 50).
He confirmed that all of the cited belts were running
when he inspected and tested them, and that the section
was producing coal (Tr. 50).
With regard to the remaining citations which he
issued, Nos: 2124157 through 2124160, Mr. Sloan indicated
that the cited conditions were the same as those found on
the 6 panel belt, and he explained as follows (Tr. 55-57).
Q.
Were the conditions that you cited in all five
of the citations, were they the same?
A.
Basically the way they were connected in the
control circuit, yes.
However, they were using not
only the Hawkeye or the solid state slip device, they
were using also a centrifugal drive roller under
certain belts. Basically, the function of the switch
itself would be the same if connected in a control
circuit.
JUDGE KOUTRAS: I am saying that all the conditions or
practices that you put in these citations as a violation, the slippage, they are all the same, are they
not?
THE WITNESS:

You're right.

Q.

Including the first one, is that right?

A.

Right.

JUDGE KOUTRAS: The conditions are all the same. He
is saying that he found a slip switch device that

'"''-'r'B
~·.iv

would not de-energize and shut off the drive rollers
when the belts slowed down and that it took the
complete shutting down of the -- the only time it
would shut it down is if the belt was completely
stopped. That's the condition or practice that he
observed. And that's.the condition or practice that
he recited in all of these citations. Isn't that
true?
THE WITNESS:

Correct.

MR. HALL:

Correct.

*

*

*

*

*

*

*

Q.
Was the test you performed in all five citations
the same?

A.

Yes.

Q.
And the results were the same in all five
citations?
A.

Yes.

Mr. Sloan was asked to explain the standards or
guidelines that he follows in determining whether or not
any particular belt slippage is in compliance with the
requirements of the cited mandatory standard. He replied
that there was nothing in writing, and he follows "the
practice throughout the industry for the diagrams that
I've seen and the starters that I have wired myself" (Tr.
58). Wh~n asked about the "industry practice", he replied
as follows (Tr. 59).
A.
Like I said, the only thing I have to go by
is what I have seen in the past and the ones I have
checked since I have had this job. And I've checked
several hundred belt drives since I've had this job
and while I was working in industry I wired those
panels by myself and wired quite a few belts. I've
got 21 years of experience.
With respect to the tests which he conducted,
Mr. Sloan indicated as follows (Tr. 61-62):

Q.
Is this an industry-wide test? Have you read
literature by people putting crow bars and moving

belts conveyor drives to test these circuits?
A.
No. This is just the way that I've always
checked them and the people that I've been around
I've seen them check them the same way.
I might add that this method was employed before
this law ever took effect. This schematic that I
presented was taken off of a drawing that was put out
in the 1960's.
When asked to explain why he did not consider any of
the citatidns to be "significant and substantial",
Mr. Sloan explained as follows:
A.
For the simple reason that the ventilation man,·
George Martin, was present with me from the opening
day and they were forcing the air on the belt
conveyor system from the section down.
In other words, the air part was going in the
same direction that the conveyor belt was. They
weren't taking air into the belt and dumping it.
They were taking the, air up by another entry and
crossing it over in the belt and taking it down the
belt, away from the sections themselves.

Q.

So had these slippage switches gone undetected
and uncorrected? Your direct testimony was eventually it would bind up the roller and possibly start
smoking and possibly start a fire?

A.

It could lead to that, yes.

Q.
If it could lead to all that, where does the
ventilation -- I mean that to me sounds like an
S&S violation?
A.
It would course the air away from the major part
of the mine. That's the reason I only put one person
in. Maybe somebody working the belts would be
affected. It could very well be S&S. But that was
the reason why I didn't mark it S&S was for the
reason that the air cart was going away from the
major part of the workers.
Q.
So based on the fact that you saw on that day,
you said it was not S&S.

2370

A.

Right.

Q.

And you didn't go on this theory?

A.

That it could go.undetected or go on forever?

Q.

Yes.

A.
Well, let me tell you something there. At that
particular time, when we issued those citations back
in August, we have had additional, you might say,
training.
Q.

What kind of training?

A.
Well, there was a whole lot of the fact that a
lot of people was under the impression that this S&S
would not be applied in the manner that if this went
on undetected forever.
Q.

Yes.

A.
A lot of people were under the influence that
this thing, as long as it was corrected, or maybe
corrected, in the next scheduled examinations for it,
if it was corrected then it wouldn't be S&S but we've
had explanations.
Q.

Which is what?

A.
Well, the simple reason that this violation here
now that we are talking about could very well be S&S.

Q.

It could be S&S today?

A.

Right.

Q.

Where did this enlightenment come from?

A.
The Marshall District Manager at a recently held
staff meeting.
Q.

Where was he enlightened from, do you know?

A.
I couldn't tell you that.
Staff Meetings.
I don't know.

2 0'} ,..,1

1·

I assume from Senior

Q.
So, today, you would use a different standard to
determine whether these five citations would be an
S&S than what you used back in August of 1983?
A.

*

It very well could be.

*

*

*

Yes.

*

*

*

THE WITNESS: We have had several memos come
down through the years on S&S policy. This latest
one -- there is not anything that I know of in
writing. As a matter of fact, it is the understanding of the fact that this violation could go on
forever and ever would change the outlook on S&S itself.

Q.

How could it go on forever and forever?

A.
Just for the simple reason of what I found right
here. This was continuing to go on undetected or uncorrected forever and ever, then it would change my
understanding of S&S and I would have marked these
reasonably likely instead of unlikely.

Q.
Well, let me ask you a question. Did you have
any indication that any of these belts were slipping
before you induced the test? You induced the slippage by making the test.
A.

Not on these particular belts that I checked.

Q.
If these belts were running from the day that
they were put in that mine without any slippage whatsoever, and let's assume as a hypothetical that they
were running for ten years without any slippage, then
there wouldn't be any problem, would there?
A.
Well, the reason that the test was performed was
the initiation of the complaint itself from having
the belt in the past.
On cross-examination, Mr. Sloan conceded that the
results of the "tests" he conducted on the cited belts
were his judgements as to whether or not the slippage
switches were performing as they are supposed to (Tr. 74).
He stated that either he or the person actually performing
the tests allowed the belts to come to a complete stop in
order to determine whether or not they would start up
again (Tr. 75). At no time during the tests did he ever

2372

detect any smoke or friction between the drive rollers and
the belts. He confirmed that he stopped the roller itself
and at no time did he test the speed of the belt (Tr. 76).
He also conceded that at no time did he ever calculate the
speed of the belts (Tr. 77).
In response to questions concerning any guidelines as
to the speed of the belt and when it should shut down,
Mr. Sloan stated that there are no guidelines as to the
rpm levels required before a belt is shut down (Tr. 78).
He further explained his testing procedures of the
belts as follows (Tr. 79-80).

Q.
If you indicated that the belt slowed in every
violation, then that means that the switch that you
were checking at the time was working because it
released the contact points and consequently shut
down the power to the rollers, correct?
A.

Yes, it could.

Q.
In everyone of these, the same thing happened.
The belt slowed just like you've testified, is that
correct?
A.
There's nothing in the regulations that says
that the belt has to slow to a certain speed.

Q.
Have there been occasions, to your knowledge,
in which another electrial inspector has visualized
a Hawkeye switch in place operating as you have
suggested under testing conditions similar to yours
in which it was checked out to be okay?
A.

I'm not aware of it.

Q.
Would you say that every electrical inspector
in your district performs the same tests?
A.

You mean by stopping the roller itself?

Q.

Yes?

A.
I would say the greater percentage of them
in District 4 check them the same way I do.
I
don't know that to be a fact.

JUDGE KOUTRAS: Let me ask you a question if I might.
Do you see any problems with inspectors
checking belts five or six different ways to
determine whether or not there's compliance?
THE WITNESS:

Do I see any hazard in it?

JUDGE KOUTRAS: Not hazard.
problem with that?
THE WITNESS:
JUDGE KOUTRAS:

Do you see any

Yes, I do.
What's the problem.

THE WITNESS: A difference in interpretation as far
as compliance.
JUDGE KOUTRAS: What I am saying is is there
nothing in writing in your District as to how to
go about checking this slip switch device?
THE WITNESS:
JUDGE KOUTRAS:

That's right.
Why?

THE WITNESS: I don't know why. That's why
I told you a little while ago this is the way
I've always checked.
Inspector Sloan confirmed that the drive roller
materials are flame resistant, and he conceded that the
greatest amount of belt friction is present when the belts
are started up (Tr. 83). With regard to his recommended
circuitry for the slippage switches, Mr. Sloan indicated
that he believed it was used by a great number of manufacturers because he has reviewed their diagrams (Tr. 85).
However, he conceded that there are circuits used in the
industry which do not contain his "MA insertion" (Tr. 85).
Mr. Sloan confirmed that the belts were operating
when he performed his tests, and he further explained his
tests as follows (Tr. 88-90):
Q.
At the conclusion of the test that you performed
in each of these cases, the belt was moving at such a
speed that whenever you released the roller, the
speed was above that which the switch was designed to

read and consequently shut off the power?
A.

On some of them, it possibly could.

Q.
The switch does not disengage the power to the
drive rollers, is that correct?
A.

Right.

Q.
So if that is the case, everytime you release
the roller, the belt is transferring at such a speed
that it was above that which would be sensed by the
switch and consequently turn off the drive holes?
A.

It could have been.

Q.
It's obvious if you shut the system down, you
would have had to restart?
A.
I didn't have any way to determine what the
revolution of that roller was at that particular
time.

Q.
Did the belt shut down at the time you conducted
any of your tests?
A.

The way that I had them tested?

Q.

Yes.

A.

No.

Q.
Well, if they didn't shut down, wasn't that what
they were supposed to do?
MR. HALL: Your Honor, I am illustrating that the belt
speed is what's tested by this device.
JUDGE KOUTRAS: The belt speed is what is tested?
MR. HALL: Right. And that this belt speed is never
allowed to get down to the speed where this device
would stop the rollers. This test was inaccurate and
improper because the speed was so fast.
JUDGE KOUTRAS: Are you saying that by performing this
test with the bar, having the man slow it down --

MR. HALL: He stops this hole completely and that is
what engages the open contacts because of the stop.
JUDGE KOUTRAS: Are you saying he didn't slow it down
enough to cause it to trigger to shut it off?
MR. HALL: Exactly.
Mr. Sloan confirmed that the belts in question have
been in operation in the mine for the past ten years, and
that there are "stop-start" buttons located along the
belts (Tr. 92). Mr. Sloan stated that he could not
audibly hear the contactors disconnect in the box when he
stopped the roller (Tr. 95). He further explained his
testing· procedure as follows CTr. 96-98):

Q.
Mr. Inspecor, did you slow the belt down by
putting the bar at that point?
A.

I had them slow the roller down.

Q.

Did that slow the belt?

A.

No, not the belt itself.

Q.

The belt kept at a constant speed.

A.
Right. Once you sense that the belt conveyor
was slowing down, when the roller was fouled, then
when he released the roller that had the sensing
device on it, it began to roll because the conveyor
was still coasting. And the drive started right back
up.
On all of these systems that I checked, his
point is that to determine the speed of the pick-up
on this particular one, Hawkeye, is entirely different than the pick-up on a centrifugal roller as far
as closing the contacts. So the same method was used
to check most of them but I can understand his argument that a predetermined speed of this particular
roller.
JUDGE KOUTRAS: Let me ask you a question. Your citation says that the slip switch wouldn't do it's job
when the belt started slipping and it would only do
its job when the belt completely stopped. What
effect did your test have on the belt, Mr. Sloan?

2376

THE WITNESS:
Well, your Honor, you couldn't very
well stop or slow the belt down.
JUDGE KOUTRAS: Why not?
THE WITNESS:
For the simple reason that in most
cases there was probably anywhere from 75 to 125
horsepower motor.
JUDGE KOUTRAS: But my question is is there a distinction between belt slippage and stuck rollers?
THE WITNESS:
Let me try to clarify something. A
slippage switch device operates off of the roller itself. It can operate off of a small roller, or with·
this particular type, it can operate off of one of
the drive rollers or the head roller itself.
JUDGE KOUTRAS: Was this belt slipping when you tested
the .roller?
THE WITNESS:

No.

JUDGE KOUTRAS: Then if it wasn't slipping, your citations say that the thing wouldn't do the job in the
event the belt would start slipping?
THE WITNESS:
What I did, I simulated a slipping
condition by slowing down the roller that would
detect if the belt actually would slow down itself.
JUDGE KOUTRAS: You mean to tell me that by fouling
that roller it would give you an indication the belt
was slipping?
THE WITNESS:
It would just simulate a slipping
condition of the belt by slowing down the particular
roller. Because if the belt would start slipping,
this same roller would slow down.
Mr. Sloan again confirmed that the belts he examined
were not slipping at the time that he inspected them, and
that he simply "fouled" the rollers in order to simulate a
slippage situation on the sensor devices to determine
whether the switches were operating properly (Tr. 101).
He could not state which of the cited belts had belt slack
take-up systems and which ones did not (Tr. 107). He
further explained his testing as follows (Tr. 111-113):

237'7

Q.
(By Ms. Cronan)
Mr. Sloan, didn't you stop
the roller altogether and did the person who was
accompanying you do that?
A.

Yes.

JUDGE KOUTRAS: So for that one roller to stop altogether, that would give a signal that there's
slippage in the belt?
THE WITNESS:

Right.

Q.
What happened when you stopped that roller altogether?
A.
When they stopped the roller altogether and held
it until the conveyor belt came to a complete stop,
the belt stopped. The drive mechanism stopped.
JUDGE KOUTRAS: And when should it have stopped?
THE WITNESS:
Well, it should have stopped when the
belt began to slow down. Or what the whole matter is
is the simple fact that the method in which I submitted this diagram, if, for any reason, that
slippage switch ~ircuit is interrupted, with the
diagram that I submitted, the belt would have to be
recycled.
I don't have any way of determining the speed of
the belt or how slow the belt would have to go in
order to drop all these switches because all these
switches are not all alike.
JUDGE KOUTRAS: Let me ask you this question.
stopped that roller completely?
THE WITNESS:

I had it stopped.

JUDGE KOUTRAS: But then the belt slowed down?
THE WITNESS:

Right.

JUDGE KOUTRAS: And it eventually stopped?
THE WITNESS:

Right.

2378

If you

JUDGE KOUTRAS: Isn't that what you are supposed to
do?
THE WITNESS:
In my own personal opinion, it should
stop the belt from operating completely. Right away.
Now the whole gist of the thing is that as long as
that roller right there was turning a small amount of
revolutions, it would energize or the signal would be
sensed and the belt would start right back up. So,
what I am saying is, going back to the fact that
assuming the belt would go 500 feet a minute, okay,-JUDGE KOUTRAS: Let's assume it started up again.
wouldn't that be an indication that the slippage has
gone away? Or that the piece of rock is jammed in
the roller or something?
THE WITNESS:

Not necessarily.

JUDGE KOUTRAS: What?
THE WITNESS:

If you stopped the roller from--

JUDGE KOUTRAS: Let's take your test again. You stop
the roller completely, The belt slows down and then
it stops. Okay? Let's assume that you take the
impediment in the roller out and the roller starts.
turning again? Will the belt start up again?
THE WITNESS:

The way it was wired, yes.

JUDGE KOUTRAS: Then it did that because you unstopped
the roller?
THE WITNESS:

Right.

And, at {Tr. 119-124):
JUDGE KOUTRAS: Let's talk about your test.
stopped t?is roller, right?
THE WITNESS:

Now, you

Right.

JUDGE KOUTRAS: On this day?
THE WITNESS:

Yes.

JUDGE KOUTRAS: On all of these five locations?

THE WITNESS:

Right.

Completely.

JUDGE KOUTRAS: How long did it take for the drive
rollers to shut down?
THE WITNESS:
I don't know exactly how long it would
take for all of them to shut down.
JUDGE KOUTRAS: How long did it take you when you conducted the test?
THE WITNESS:
There was probably within four or five
seconds the belt contactors all dropped out and then
the time the belt coasted I don't know.
JUDGE KOUTRAS: All right, Ms. Cronan, the citation
says that the sl.ip switch device would not stop the
drive rollers in the event that the belt would start
slipping.
That's what he said. It wouldn't stop
MR. HALL:
it in the event the belt starts slipping. When he
performed his task he induced a symptom of the belt
slipping.
MS. CRONAN:
He induced the symptom of the belt
stopping altogether.
MR. HALL:

Of the belt slipping.

MS. CRONAN:
I think there's a distinction here between the slippage and stopping.
JUDGE KOUTRAS: I'm reading from Citation 2124157 and
all the others. The first sentence says "the slip
switch device installed on the belt conveyor would
not stop the drive rollers in the event the belt
would start slipping." He says if this belt slipped,
the drive rollers wouldn't stop.
MS. CRONAN:

That's right.

JUDGE KOUTRAS: Now, when he conducted his test, he
simulated the belt slipping, did he not?
MS. CRONAN:
stopping.

And he also simulated the belt

2380

JUDGE KOUTRAS: Let's take the slipping first. When
he stopped that roller he induced a symptom of the
belt slipping, did he not?
THE WITNESS:
When tne roller came to a complete
stop it was as if the belt had stopped. It completely stopped.
JUDGE KOUTRAS: How long did it take for it to stop
actually?
THE WITNESS:
Once the roller was fouled I'd say it
was in three or four seconds.
JUDGE KOUTRAS: So it did stop then, didn't it?
THE WITNESS:

Yes.

MS CRONAN:
It was only when the belt, there was
a simulation of the belt coming to a complete halt.
JUDGE KOUTRAS: You mean to tell me when he fouled
this roller the belts quit running?
THE WITNESS:
Essentially, what they had was two
sequence switches -- in a manner of speaking -- they
were so wired.
JUDGE KOUTRAS: Mr. Inspector, I am not trying to confuse you and I am not trying to confuse counsel. I
am trying to understand the condition here.
MS ·cRONAN:
Your Honor, I think going back to what
we were talking about before the roller that he artificially stopped is the roller that would be stopped
if the belt stopped. And the switch would sense that
and cause the mechanism to stop.
The problem is that it's also supposed to
detect slippage. That stops the mechanism, when
there's slippage. Now, by slowing down that roller,
he simulated slippage. And it did not stop.
JUDGE KOUTRAS: I thought he said in three seconds it
did.
MS CRONAN:

His citation states and his testimony,

I think, has been consistent with that, that it only
stopped ·when he simulated the belt coming to a
complete halt.
JUDGE KOUTRAS: Is that your testimony?
THE WITNESS:

Yes.

MS CRONAN:
And that's the problem. There would
be slippage and the mechanism would continue to
operate. The switch would not stop it and the slippage switch is supposed to stop the mechanism when
there is slippage. It seems as a matter of
definition very clear. That's why the term "slippage" is used. And we didn't have that here.
JUDGE KOUTRAS: Mr. Hall?
MR. HALL: Your Honor, Government's counsel says that
there is some point within a three-second interval in
which this test can be performed and determine the
difference between slippage and stoppage.
Obviously the te~t did what it was designed to
do. It detected when the belt roller was slowing or
stopping and it disengaged it.
JUDGE KOUTRAS: At what point in time in this test,
Ms. Cronan, is it your understanding that the drive
rollers actually stopped?
MS. CRONAN:
When the roller was completely
stopped. Is that correct?
THE WITNESS:
I'd say approximately three seconds or
so after the slip switch was completely brought to a
stop.
JUDGE KOUTRAS: Are you suggesting that your test
indicated that this drive roller would never be shut
off?
THE WITNESS:
What I am suggesting is the manner in
which they were wired would essentially, you could
have a belt in that Figure 8, and the manner in which
they were wired -- the slip switch would continue to
shut the belt off everytime the belt came to a complete stop but as long as the conveyor would run fast

n3·80

"

(..,

enough to turn that four-inch roller as much as say,
30 RPM's, depending on how the thing is adjusted, it
would recycle the drive mechanism and continue on and
on and on. That was the only reason why I asked them
to incorporate this in the controi circuit.
It was
to eliminate this possibility.
MSHA's Testimony and Evidence- Dockets WEVA 83-252-R,
83-253-R, and WEVA 84-30.
MSHA inspector Pete Teel testified as to his
background and experience in the mining industry, and he
confirmed that he is an MSHA electrical and mechanical
inspector and that his duties include the inspection of
underground and surf ace electrical and mechanical
equipment. He also confirmed that he was part of an
inspection team that inspected the mine in question, but
that he was not part of of the inspection party which
included Inspector Sloan.
Mr. Teel confirmed tht he issued citations 2124098
and 2124099, and he stated that citation 2124098 concerned
a centrifugal slippage switch.
In addition to certain
tests made on the cited conveyor belts, Mr. Teel confirmed
that he determined that the centrifugal slippage switch
was inoperative by opening the lid on the switch box and
observing that the contactor points were inoperative. The
contacts would not open, and the belt would not shut down
(Tr. 142-147).
With regard to the centrifugal switch, Mr. Teel
stated that if the belt were stopping and starting, as he
described it during the testing, the slippage switch would
not completely stop the belt unless the roller was
completely stalled, and the belt would restart itself.
He explained further as follows (Tr. 153):
JUDGE KOUTRAS: Are you saying that even with the
blockage slippage roller, did the belt continue to
run. Is that what you're asking?
Q.
I am saying if there is slippage on the belt
which is not sufficient to stop the belt.
A.

To stall it completely.

Q.
To stall it completely. Just slowing it down
with the type of switch that you observed when you

2333

issued this citation, how would that set the switch
up?
A.
·It would not break at all.
cut it off at all.

Because it didn't

With regard to the Hawkeye slippage switch, Citation
No. 2123099, Mr. Teel stated that when he stalled the
slippage belt roller, the conveyor motor shut down and the
belts began to coast. He allowed the belts to coast
"until it was almost dead stopped" and when he released
the slippage roller, the conveyor belt started up again.
He explained that this was the reason why he issued this
citation (Tr. 154).
In further explanation as to why he issued Citation
No. 2124099, Mr. Teel testified as follows (Tr. 154-157):

Q.
All right, but why is the condition that you
observed when you performed this test, why was that
a violation?
A.
Because it won't control that conveyor when it
starts slipping. It won't shut it down and keep it
down until some responsible person checks the condition. They go and restart it several times and the
belt will go through its cycle and shut itself back
down. Somebody has to go and find out what the problem is.
JUDGE KOUTRAS: Well, now, didn't you slow it down
with this test?
THE WITNESS:

No.

JUDGE KOUTRAS: You just told me when you -- tell me
what you did again?
THE WITNESS:
I blocked this roller.
unit shut down. Not the belt.

The drive

JUDGE KOUTRAS: The drive unit?
THE WITNESS:

On what?

JUDGE KOUTRAS: On the belt there.
THE WITNESS:

Yes.

0n34

~0

That shut down?

JUDGE KOUTRAS: But the belt kept coasting?
THE WITNESS:

The belt kept coasting.

JUDGE KOUTRAS: The belt was moving at a fairly fast
speed?
THE WITNESS:
I let it slow way down and it was just
barely moving and turned this roller loose.
JUDGE KOUTRAS: If you hadn't turned the roller
loose, would this belt come to a complete stop?
THE WITNESS:

It would have stayed down.

JUDGE KOUTRAS: Isn't that what that thing is supposed
to do?
THE WITNESS:
yes.
Q.

The way they have got theirs wired,

What is a proper slippage switch supposed to do?

A.
It's supposed to shut the belt down when it
starts?
JUDGE KOUTRAS: Instantaneously?
THE WITNESS:

No.

JUDGE KOUTRAS: There is some coasting action and
that's what happened here, isn't it, when you did
something to block that roller, the belt started
coming to a blinding halt and then it coasted and it
slowed down but before it stopped completely you
turned it to the roller and then it kicked on again?
THE WITNESS:

Right.

JUDGE KOUTRAS: And it started up again?
THE WITNESS:

Right.

JUDGE KOUTRAS: But would it have
THE WITNESS:

Sir?

2385

stopp~d

completely?

JUDGE KOUTRAS: Would the belt have stopped completely
had you not turned loose the roller.
THE WITNESS:
If that roller had stayed stalled, it
would have stayed down.

*

*

*

*

*

*

*

Q.
You're saying that it started slipping and continued slipping for a long period of time before it
would come to a complete halt.
Is that what you're
saying?
A.
I am saying the belt can stop that roller and
then the belt can move like Mr. Sloan said. When it
stalls, there's a lot of tension and it could roll
backwards and if that roller moves the belt continues
to start itself up.
It could start itself over and
over.
Q.
Why would this be a violation of the regulations?
A.
I can't answer that.
lines.

We don't have any guide-

In explaining the guidelines that he follows in
finding that citations 2124098 and 2124099, were
"significant and substantial" violations, Mr. Teel stated
as follows {Tr. 163-164):
Q.
Specifically, in making a determination of
whether a condition is significant and substantial.
What goes into making that determination?
A.

First, it has to be a serious-type violation.

Second, they have informed us that when we find
the conditions, we have to take that too. It's not
going to be corrected. It's going to stay there.
Third, if it's reasonably likely that a health
and safety hazard could be caused by it, and taking
into consideration that criteria, if it's reasonably
likely that it is going to contribute to health and
safety hazards, it's not going to be corrected and I
have no other choice but to mark it S&S.

2386

And if it's unwarranted on the part of the
operator to comply, I have to put a 104(d) (1) citation.
JUDGE KOUTRAS: What's this business about it's not
going to be corrected? What does that mean?
THE WITNESS:
I don't know. That's a determination
someone else made.
I didn't make it.
Mr. Teel confirmed that at the time the citations
were issued, the section was producing coal and the belt
lines were in operation (Tr. 165). In response to a
question as to why he believed the violations were "S&S",
he explained that the respondent had successfully filed
for a modification of its ventilation system to permit the
use of a "CL" System", or in more common terms, smoke
detectors, along its belt lines. This allowed the
respondent to use the belt areas at the faces.
However,
it was his view that in the event of a belt fire resulting
from any friction on the coveyor belt drive rollers, the
smoke would be coursed to the working faces where miners
would be exposed to possible smoke inhalation. Under
these circumstances, he considered this in making his
"S&S" determination (Tr. 164).
On cross-examination, inspector Teel conceded that
the respondent's ventilation system was in compliance with
its approved ventilation plan and that the respondent
successfully prevailed in obtaining a modification for
the belt area in question and that it was in compliance
with the law. He also confirmed that at the time he
issued the citations, respondent's belt fire warning and
suppression water spray systems were operative and that he
found no other conditions which were in violation of
MSHA's mandatory safety standards (Tr. 171-179-181).
Inspector Teel stated that it was "possible" that he
made a statement that given the fact that the cited
conveyor belts were provided with operable water sprays,
that the belts were constructed of fire resistant
materials, and that he found no other violative conditions
in the cited areas, he would not have marked the citations
as "significant and substantial" violations. He also
stated that given the "possibility" of such an admission
on his part, his findings that the violations were
"significant and substantial" would have resulted from
instructions from George Vargo, his supervisor (Tr.
177-179).

In response to further questions, Mr. Teel confirmed
that the tests he performed on the cited belts he cited
were similar to those performed by Inspector Sloan, and he
explained the test results as follows (Tr. 186):

Q.
I believe you indicated on the record that when
the slippage roller was introduced into that roller
that it slowed to a stop?
A.

On the one.

Q.
The second citation or Government Exhibit 18
which was issued on the 12th?
A.

Yes, sir.

Q.
When that switch or roller was engaged the
wedge, you performed that yourself?
A.

Yes, sir.

Q.
And when you engag~d the wedge and stopped.that
roller that the switch worked as it was designed to
work?
A.

Yes.

Q.
There was no smoke or fire hazard in the area at
all?

A.

~.

Q.

There was no friction?

A.
The belt was driving normal if that's what you
are saying.
Respondent's Testimony and Evidence
Ernie Boggs, Chief Engineer, Owens Manufacturing
Company, testified that he holds A.S. degrees from the
Bloomfield State College in mechanical and electrrical
engineering. He confirmed that he is familiar with belt
slippage switches, and he indicated that he has three
years of experience in assisting engineers in the design
of such switches. He also confirmed prior mining
experience with slippage switches and conveyor belts (Tr.
201-204).

0 ~aa

~u

Mr. Boggs examined a Hawkeye slippage switch used for
demonstration, and he testified as to its characteristics
and operation CTr. 207-209). He also testified as to the
frictional parameters of the belt systems in question, and
indicated the conditions under which belt friction would
occur (Tr. 209-213). He also testified as to the wiring
requirements imposed on the respondent by the inspectors
who issued the citations, and in his opinion requiring the
belts to be manually restarted once they are shut down by
the re-wired switches, pose more of a frictional hazard
(Tr. 214).
On cross~examination, Mr. Boggs conceded that he had
not inspected the slippage switches at the mine in
question, and he affirmed that these switches may be wired
in different ways once they are received from the
manufacturers (Tr. 220). Mr. Boggs asserted that every
time a belt conveyor belt is started up there is a greater
degree of friction generated by that action (Tr. 221).
During a bench colloquy with MSHA's counsel and the
witness, the following statements were made (Tr. 230-232):
JUDGE KOUTRAS: I am trying to understand the theory
of the citations and the theory of enforcement action
in this case. It's obvious to me that no amount of
tolerance was allowed in this case in terms of slippage, isn't that true?
MS. CRONAN:
Well, based on the testimony of the
inspectors and the tests they performed, they induced
a situation which simulated a considerable amount of
slippage and the switch did not shut down.
JUDGE KOUTRAS: What if this device was set below the
speed of the simulation then it would never have
triggered?
MS. CRONAN:

That's right.

That's the problem.

JUDGE KOUTRAS: Why is it a problem?
MS. CRONAN:
The problem is that there could be
slippage, a considerable amount of slippage, enough
to cause a fire, and the slippage switch in this
particular device that this witness is testifying
about, would not stop the belt.

, , .. , 0

~0()

9

JUDGE KOUTRAS: So by requiring him to put this device
in there, this switch now, any amount of slippage?
What's the slippage tolerance under the new system?.
MS. CRONAN:

I don't know.

THE WITNESS:
It would depend upon the switch. I
mean if this thing were still set for 39.25 you
inserted the contacts here where he has that switch
drawn and the belt still has to go to 39.25 to be
energized.

Q.
You testified about something called a motor
overload?
A.

Yes.

Q.

Can you tell me what that is again?

A.
Motor overload is a device that since it's
current and/or temperature.

Q.

What does it do?

A.
It energizes or it de-energizes a set of contacts in the control circuit that would cause the
mechanism to de-energize and stall.

Q.
But you have no information as to whether the
motor overload devices were in existence in the conditions cited in this case?
A.

Yes.

All motors have overloads.

Q.

All motors do?

A.

Well, all control boxes have.

Q.
So you are saying that they were operating in
this instance?
A.
That would be my opinion. I did not lay my
hands on them to make sure but that's right.
With regard to the testing procedures used by the
inspectors in these cases, Mr. Boggs agreed that while
they were not safe, they were acceptable means of testing
the belts (Tr. 235). He believed that the one way to test

2380

a centrifugal switch is by means of a crowbar or iron bar
as- used by the inspecors (Tr. 235). He conceded that he
has never observed the specific switches in issue in these
proceedings, and he had no knowledge as to how they may
have been wired (Tr. 2365). However, he did indicate that
the inspectors were concerned about the amount of belt
slippage between the drive rollers and the belt (Tr. 236).
He was of the opinion that as long as the belt was
coasting during the testing, there was a chance of it
starting up again (Tr. 236).
Danny Morgan, respondent's maintenance superintendent,
confirmed that he has had 13 years of experience as an
electrician, and he testified as to his mining background
and experience (Tr. 238). He confirmed that the Hawkeye
and centrifugal switching systems both sense the speed of·
the belt as it moves across the roller, and he testified
as to the belt rpm's and the minimum threshold belt speeds
(Tr. 240-243). He also alluded to certain overload
safeguards which he believed were operational at the.time
of the August 12, 1983, inspection (Tr. 245), and he
confirmed that the belt would have to slow down to a "very
slow" speed before it would smoke or heat up. (Tr. 248).
Mr. Morgan testified as to the work done to abate the
citations, and he confirmed that the Hawkeye sensing
devices were all wired according to the manufacturer's
specifications, and that there was no attempt to re-wire
them in order to give false readings or to otherwise
jeopardize the integrity of the system (Tr. 250). He
explained that the purpose of the interlock device
installed for abatement is that "once tripped on belt
slip, the belt must come to a complete stop and be
recycled" (Tr. 251).
Mr. Morgan stated that he discussed the abatement
with the inspectors and that at no time did they indicate
that the sensor on the Hawkeye device was inappropriate.
He confirmed that the belt monitoring systems have been in
effect for a long, time, and that the Hawkeye has been used
for the past seven or eight years (Tr. 254). He also
explained how the belt speed tolerances are activated in
both of the belt sensing devices so that the belts are
stopped in the event of belt slippage (Tr. 256).
On cross-examination, Mr. Morgan stated that the
Hawkeye sensing device is set to stop the belt at speeds
below 39.25 feet per minute, and that at speeds above that
level, the switch will not come into play. He confirmed

2391

that the normal belt speed is 450 feet per minute, and
that if the belt speed is reduced to 40 feet per minute,
the belt will not stop (Tr. 258-259). He indicated that
if this happened, it does not necessarily mean that
slippage will occur in the belt roller (Tr. 259).
However, he conceded that if the belt slowed to 40 feet
per minute there could be some friction CTr. 260), and
that if any friction continued for a sufficient length of
time, some smoke could result CTr. 261).
Mr. Morgan explained the various operational speeds
of the belts (Tr. 263-265). He confirmed that he did not
inspect the motor overload systems on August 11 and 12,
1983, and that he personally did not inspect all of the
switches which were cited during the inspection (Tr.
27 2) •

Eugene L. Brown testified that he is employed by the
respondent as director of safety and training. He stated
that he was familiar with the citations issued by Inspector Sloan
during his August 11 and 16, 1983, mine inspections, and
that he accompanied Mr. Sloan during those inspections
(Tr. 328-330).
With regard to citation No. 2124155, (exhibit G-2),
Mr. Brown confirmed that the slippage switch on the 6 panel
section belt conveyor was inoperative, and that when tested,
the switch contact points would not "drop out," or function.
He indicated that the condition was corrected on the evening
shift on the same day that the citation was issued. He
identified the switch in question as a Hawkeye switch, and
he stated that the MSHA inspectors inspected the area and
found that the fire extinguishers, fire sensors, and other
safety systems were operative, and that the mine was "damp
to wet" on August 11, 1983, when the citation was issued.
He also indicated that the nearest working section was
approximately 1,000 feet from the location of the citation,
and that the air was going in the opposite direction in
accordance with the mine ventilation plan which had MsHA's
approval (Tr. 330-333).
With regard to citations 2124157, 2124158, 2125159,
and 2125160, (exhibits G-7, G-9, G-11, and G-13), Mr. Brown
stated that the cited belt locations were approximately 1,000,
3,000, and 2,000 feet, respectively, from the nearest working
sections where miners would be working, but that one belt
man would be in those locations (Tr. 334).

2~\92

With regard to the citations issued by Inspector Sloan
on August 16, 1983, Mr. Brown confirmed that the tests,
as described by Mr. Sloan were conducted by use of a short
scaling bar which Mr. Sloan had with him (Tr. 336).
Mr. Brown identified the slippage switches cited at
the 5 panel section belt conveyor and the Blackburns mains
belt conveyor as Hawkeye switches, and the slippage switch
at the chestnut mains beli conveyor as a centrifugal switch.
With regard to the tests conducted by Inspector Sloan,
Mr. Brown stated that once the bar was inserted into the
slippage roller by Inspector Sloan to "stall" the roller,
it took "a few seconds" to stop the roller.
Once the roller
stopped, the belts started slowing down, and Mr. Brown stated
that he could hear the slippage switch contact points separate.
He indicated that the purpose in stopping the rollers by
means of the bar was to determine whether or not the contactor
points would separate or "drop out." Since they did, it
was Mr. Brown's opinion that they performed the function
for which they were intended, and stopped the power to the
belt conveyor motor (Tr. 338).
Mr. Brown did not know how many centrifugal slippage
switches were installed on the mine belt conveyors on
August 11, 1983. He stated that he has escorted MSHA
inspectors during their underground inspections for the past
seven years and that these inspectors have tested the slippage
switches on the belt conveyors in the same manner as those
tested by Inspector Sloan, and that the slippage switches
were always found to be in proper working order (Tr. 339-340).
Mr. Brown confirmed that he was given an abatement schedule
by the inspector,· but that when he returned the next day, he
would not accept the wiring and an electrician immediately
began installing interlock devices on the switches in question
(Tr. 343) .
On cross-examination, Mr. Brown conceded that he had
no particular electrical expertise. He confirmed that a
citation was issued on August 11, 1983, because of an inoperative
water deluge system on the six panel section belt conveyor.
He also confirmed that a citation was also issued on August 12,
1983, because of an inoperative surface fire warning monitoring
system which had been knocked out by an electrical storm
(Tr. 3 52) •
When asked to explain what he knew about the UMWA
complaint concerning an alleged belt fire on August 5, 1983,
Mr. Brown confirmed that the information he received indicated
that there was a malfunction on the belt drive and that the
belt rubbed in two and there was some smoke but no flame
(Tr. 3 6 0) .

2.393

Mr. Brown stated that he was with Inspector Sloan on
August 11 and 12, when he tested the slippage switches, and
he confirmed that the tests were the standard and normal
practice used by-MSHA inspectors to test such switches
(Tr. 362). Mr. Brown confirmed that he had no knowledge of
the specifics concerning the operation of slippage switches
(Tr. 3 6 3) .
In response to further questions concerning the electrical
storm, Mr. Brown stated that the citation in question concerned
only the audible warning system located on the surface, and
that the underground CO monitoring devices located at
each position were operational and would sound a warning
if there were any problems with carbon monoxide (Tr. 369).
Mr. Brown also explained that other precautionary measures
were taken and that the inoperative surface system was
promptly repaired (Tr. 370-372).
Warren Burkhart, testified that he is employed by
the respondent as a safety inspector, and has been employed
in that capacity for six years.
He testified as to his
mining background and experience, and confirmed that his
duties include working on the belts "here and there,"
including their installation and set-up.
However, he also
indicated that he had no particular experience with respect
to the belts.
Mr. Burkhart confirmed that he was familiar with citations
2124098 and 2124099, which were issued by Inspector Teel
on August 11, 1983, and August 12, 1983, (exhibits G-15 and
G-18), and while they state they were served on "Warren Buckley,"
he asserted that his last name as shown on the citations is
erroneous.
With regard to citation No. 2124099, Mr. Burkhart stated
that he was with Mr. Teel when Mr. Teel himself tested the
Hawkeye slippage switch on the South West No. 1 belt conveyor.
Mr. Burkhart stated further that Mr. Teel tested the switch
with a "glut," which he described as a wooden wedge approximately
eight to ten inches long.
Mr. Teel inserted the wedge between
the upper slippage roller and the belt conveyor frame in
order to stop the roller from turning.
Upon inserting the
wedge, it took approximately three to five seconds to stop
the roller, and Mr. Burkhart stated that he saw the belt
slowing down, that he could bear the belt m9tor slowing down.
He also stated that he heard the switch circuit contactors in
the control box which was some 20 to 25 feet away "drop out"
or separate, and that this occurred as the belt motor and
belt slowed down and as Inspector Teel released the wedge
from the slippage roller. Mr. Burkhart asserted that at no time
during the test did the belt drive rollers come to a complete
stop.

f) <\. . 8'
-4
~.- '-i

..... '-'

_

Mr. Burkhart asserted that the nearest working area
where miners would be present was approximately 1600 to
1700 feet inby the cited belt head location. He indicated
that the area around the cited belt switch in question had
operable deluge water sprays and fire sensors, and that the
roof and ribs were rock-dusted. He also indicated that the
belt drive was taken out of service and that the cited condition
was corrected that same evening during the evening shift.
Mr. Burkhart stated that he discussed Mr. Teel's "S&S"
finding with him, and when he asked him why he designated
the citation "S&S" given the fact that the water sprays, fire
sensors, and rock-dust were present, Mr. Teel advised him
that while he personally did not believe it was an "S&S"
violation, he nonetheless marked the citation "S&S" upon
instructions from his supervisor (Tr. 393).
Mr. Burkhart indicated that approximately five to
seven seconds elapsed between the time that Inspector Teel
began his test with the wedge until he heard the contactor
points separate in the control box. Mr. Burkhart was of
the opinion that Mr. Teel had the opportunity to see and
hear what he saw and observed during the time the test
was conducted.
With regard to citation No. 2124098, Mr. Burkhart
described the conditions of the area cited, and he indicated
that the mine bottom was muddy, that the roof and ribs
were rock-dusted, and that the C.O. monitors and other fire
safety devices were all in operative condition. He also
indicated that the nearest working section was approximately
5100 feet from the cited belt location, and that one belt
man would be in that location.
Mr. Burkhart confirmed that he has certified electrician
and mine foreman's papers issued by the State of West Virginia,
and that the mine operator had no prior knowledge that the
slippage switch in question was inoperative (Tr. 397).
On cross-examination, Mr. Burkhart stated that he was
not with Inspector Teel on August 11, when he conducted his
test, but was with him on August 12, when he tested the
centrifugal switch to determine whether to abate the
citation (Tr. 401). Mr. Burkhart confirmed that the tests
which he did observe being made by Mr. Teel were the same,
and that he used the wedge device to test a centrifugal
switch and a Hawkeye switch (Tr. 403).
Mr. Burkhart explained the results of the tests conducted
by the inspector, and he stated that when the slippage switch

was activated, the belt started to slow up but did not come
to a complete stop. Once the roller was stopped and the
test wedge released, the drive rollers started up again
(Tr. 404). However, at no time did the belt drive roller
come to a complete stop, and he indicated that had Inspector Teel
left the test wedge in place long enough, the belt would
have stopped and could only be started up again by activating
the remote switch (Tr. 406).
Blaine Toler, belt foreman, testified that his duties
include the installation and maintenance of the mine conveyor
belts. He confirmed that the belts are constructed of a
rubber neoprene based fire resistant material. Based on
his experience, he believed that a drive roller will cause
a belt to separate by rubbing before there is any smoke or
fire generated (Tr. 417-418).
It was his understanding that
during the tests conducted by the MSHA inspectors in these
proceedings, at no time did the belt reach a speed below that
calculated to bring it to a halt (Tr. 419).
In his opinion,
as long as the belt continues to go through the drive rollers,
no smoke or fire hazard is created (Tr. 420).
On cross-examination, Mr. Toler confirmed that the
normal belt speed is 450 feet per minute and that the belt
drive electrical motors are set to drive the belt at that
speed. Should something happen to the belt, the drive rollers
would continue to revolve at approximately the same speed
required to drive the belt at 450 feet per minute. Should
the belt slow down and the rollers continued to revolve
at a rapid speed, there would be friction between the belt
and the drive rollers (Tr. 421). There would also be a
danger of smoke, but when belt slippage occurs, in most cases
the belt will come to a complete stop (Tr. 422).
Ronald H. Scaggs, stated that in August 1983, he was employed
by Beckley Coal Mining Company as the director of safety
and training. He confirmed that he was aware of a citation
which was issued on August 12, 1983, for an inoperative fire
warning device on the mine belt conveyors (exhibit G-21). He
described the mine computerized fire warning system, and
he indicated that the system is designed to detect carbon
monoxide in the belt entries. He confirmed that when the
citation was issued the surface belt alarm system was inoperative,
but the underground system continued to function independently (Tr. 431)
Although the citation was marked "S&S" as introduced
by MSHA, Mr. Scaggs stated that during a conference in the
Mt. Hope office, the inspector who issued the citation deleted
the "S&S" finding (Exhibit R-3) (Tr. 436).
MSHA's Rebuttal Testimony
Harold Newcomb, Electrical Engineer, MSHA Mountain
District Off ice, testified that he is an authorized mine

inspector and that he deals with both surface and underground mines. He holds a B.S. degree in electrical engineering
from the West Virginia Institute of Technology, and he testified
as to the operational parameters of the cited belts, including
the question of belt slippage (Tr. 441-447) ..
Mr. Newcomb testified that in the event a belt would
energize and then deenergize, friction would result, and smoke
or fire would be present (Tr. 451). He confirmed that he
was familiar with slip switch equipment, and that the manner
in which the inspectors tested the belts was a normal method
of testing such equipment (Tr. 454).
On cross-examination, Mr. Newcomb conceded that he was
not familiar with the particular belt drives cited by the
inspectors in these proceedings. He confirmed that he did
review the citations, but that he has never been underground
in the mine in question, nor has he ever observed the locations
where the citations were issued (Tr. 456). He did not know
whether any of the belt drives in question were equipped
with devices for reducing belt slack (Tr. 457).
Mr. Newcomb stated that in his opinion, if the speed
of a belt were decreased by 50 percent of what it was set
at, slippage would result (Tr. 460). He explained the
procedure he would follow to determine whether the Hawkeye
or centrifugal switches were functioning properly (Tr. 473-477).
Findings and Conclusions
Dockets WEVA 83-253-R and WEVA 84-31
Fact of Violation - Citation No. 2124155
Respondent conceded and stipulated that the cited slippage
switch here was inoperative and in violation of section
75.1102. Accordingly, this_citation IS AFFIRMED.
Fact of Violations - Citations 2124157, 2124158, 2124159, 2124160
Each of these citations charges that the cited slip
switch device would not stop the drive rollers in the event
the belt would start slipping. The slip switch circuit would
only stop the drive rollers if the belt was completely stopped.
In each instance, Inspector Sloan cited a violation of 30
C.F.R. § 75.1102, which provides as follows:
Underground belt conveyors shall be equipped
with slippage and sequence switches.

Section 75.1102, contains no definition of "slippage"
or "slippage switch." However, the Dictionary of Mining,
Mineral, and Related Terms, U.S. Department of the Interior,
1968, provides the following definitions:
belt slip. The difference in speed between
the driving drum and the belt conveyor. Belt
slip at the drivehead can cause heating of
the driving drum. Devices are available
which measure the belt slip and which cut off
the power when a predetermined amount of slip
takes place.
belt-slip device. A device fitted to a belt
conveyor to give an alarm or to cause the
conveyor to stop in the event of belt slip
exceeding a predetermined amount.
belt-slip protection device. An assembly which
causes the power to be disconnected if the belt
slips excessively ori the drive pulley.
switch. A mechanical device for opening and
closing an electric circtiit.
slip. A measure of the slipping of a belt on a
pulley, for example, 5 percent slip implies
that the driven pulley is rotating 5 percent
slower than the driver.
MSHA's approval standards for electrically operated
components, 30 C.F.R. 18.48(f), provides as follows:
Belt conveyors shall be equipped with control
switches to automatically stop the driving
motor in the event the belt is stopped, or
abnormally slowed down.
In support of the citations, MSHA asserts that on August 11,
1983, Inspector Sloan first tested the slippage switch which
is the subject of citation 2124155, by having the maintenance
foreman (Bare) , "pinch the roller between the roller framework
and the roller itself." When Mr. Bare stopped the roller
that activated the slippage switch, the belt began to slow
down, and when he turned the roller loose, it picked up
speed and the belt started up again. Mr. Sloan then issued
the citation because the slip switch device failed to keep
the drive mechanism shut down when the "simulated slippage
test" was performed. When Mr. Sloan returned to the mine
the next day, he tested the slip switch again, and after
finding that it still would not stop the drive, he extended

2398

the abatement time after being informed that "the control
box pertaining to the solid state switch device" was thought
to be defective.
Inspector Sloarl terminated the citation
after the switch was repaired.
Contestant/respondent conceded that the solid state
"Hawkeye" switch which was the subject of citation 2124155
was defective, and the record reflects that Inspector Sloan
extended the abatement time in order to allow the defective
switch to be repaired. Thus, on August 11, 1983, when the
"slippage test" was performed, it was apparently performed
with the defective slip switch in place.
In support of the four remaining citations issued by
Inspector Sloan, MSHA argues that when he returned to the
mine on August 16, 1983, he performed the same test as on
August 11th, with the same results (Tr. 57). MSHA asserts
that company witness Brown corroborated Mr. Sloan's testimony
regarding the way the switches were tested and the way they
responded to the test (Tr. 336-339; 365). Although three
of the switches were solid state "Hawkeye" switches (citations
2124157, 2124518, 2124160), and the other one (2124159), a
centrifugal switch, MSHA maintains that there was no difference
in the way the two types functioned when tested by the inspector.
I conclude and find that the purpose of the tests
conducted by the inspectors .in these proceedings was to
determine whether or not the slippage switches in question
were functioning properly so as to disconnect the power to
the electrically driven belt drive rollers in the event of
belt slippage.
I further conclude and find that the term
"belt slippage" includes a reduction in the revolutions
per minute of the slippage switch roller below a predetermined
set speed, or if stopped completely.
MSHA has the burden of proving by a preponderance of the
credible evidence that the alleged inadequate slippage switches
were in violation of the requirements of section 75.1102.
One basic initial obstacle facing MSHA is the fact that the
standard simply requires that belt conveyors be equipped
with slippage switches, and the inspectors are left on
their own to determine how to interpret and apply the standard.
The basic question cutting across all of the citations
in issue in these proceedings i$ whether or not MSHA has
established that the cited slippage switches were inadequate
when tested by the inspectors. The thrust of MSHA's case
is that the manner in which th2 switches were wired allowed

2399

the belt to restart itself once slippage was induced by
placing a bar between the switch roller and the belt frame.
Although Inspector Sloan stated that during the test, and
while the conveyor belt was coasting, once the "slipped"
roller was released, the Hawkeye sensor device picked up
that signal and started the drive mechanism back up, he conceded
that this was the wa it was desi ned to work (Tr. 79).
Further, contestant respo"ndent points out that there is no
specific mandatory safety standard requiring the slippage
switch to insure that the electric motor does not reenergize
if the slippage switch roller is released during the test
procedure and regain the belt speed above which the slippage
switch is set to fully deenergize the motor and disconnect
the electric circuitry.
Mr. Brown testified that during all of the tests
conducted by Mr. Sloan, once the rollers were stopped by
inserting the test bar at the roller switch locations, the
starter or control box contactors would "drop out," and
the belt would start slowing down. He could hear the reduction
in the speed of the motor and visualized the belt itself
slowing down.
This indicated to him that all of the slippage
switches, both Hawkeye and centrifugal, all performed their
function and opened the contractor points, thus stopping
the power to the motor (Tr. 336-339). However, he confirmed
that once the stopped rollers were released, the drive started
up again, and the belt continued to operate as it had prior
to the testing (Tr. 365-366).
Mr. Brown stated that during a recent inspection prior
to the one conducted by Mr. Sloan, MSHA Inspector Phillip
Washington tested the slippage switches in the same manner
as did Mr. Sloan, but that when Mr. Washington heard the
contactors "go out," he released the rollers "and we went
about our business." Mr. Brown indicated that Inspector
Washington approved the continued operation of the switch
following his tests (Tr. 340).
Inspector Sloan testified that he did not calculate
the speed of the belt at the time he performed his tests, and
he conceded that there are no MSHA guidelines as to the
acceptable rpm levels which should be maintained in order
to facilitate the particular speed at which the switch
sensing device will cut off the current to the drive rollers
(Tr. 78). When asked whether all inspectors in his district
performed the tests by stopping the roller itself, he replied
"I would say the greater percentage of them in District 4
check them the same way I do.
I don't know that to be a
fact" (Tr. 79-80). He conceded that the lack of any MSHA
written procedures or guidelines for testing the switches
does present a problem insofar as consistent interpretations
and compliance are concerned (Tr. 80).

2400

Although MSHA relies somewhat on the testimony of its
rebuttal witness, electrical engineer Harold Newcomb, it seems
clear to me that his testimony is based only on his review
of the written citations. Mr. Newcomb conceded that he had
never been in the underground mine, was not familiar with
the particular belt drives in question, and had never observed
the particular devices which were cited in these proceedings
(Tr. 454-456). Further, he had no idea how much belt slippage
would be required to cause the slippage switch to ope~, and
he conceded that it would depend on the speed at which the
switch was set (Tr. 471). Under the circumstances, I have
given little weight to Mr. Newcomb's testimony.
I cannot conclude that MSHA has established that the
cited slippage switches were not functioning in the way they
were intended.
Inspector Sloan's initial test on August 11,
was performed on a switch which was apparently defective
at the outset. This not only raises a question as to the
credibility of that test, but also as to the others, particularly
since he indicated that he followed the same procedures in
testing the other switches on August 16th. Inspector Sloan
conceded that he did not calculate the speed of the belts
he tested, and he admitted that there are no MSHA guidelines
or policies concerning the acceptable belt speeds which should
be maintained, or the threshold speed limits necessary to
trigger the particular belt sensing devices in the event
there is any indication of slippage. Further, MSHA has
not rebutted the testimony that other inspectors who conducted
the same basic tests as did Mr. Teel and Mr. Sloan nonetheless
approved the continued operation of the switches. Although
MSHA's reply brief argument that the failure by other inspectors
to cite violations may not be used to support any "waiver"
theory is correct, it seems to me that MSHA should be concerned
about inconsistent enforcement practices, particularly in
instances where the inspector is left to his own imagination
as to how the standard should be interpreted and applied.
I take note of the fact that while the citations charge
that the cited slip switches would not stop the belt drive
rollers in the event of belt slippage, the inspectors
artificially stopped the rollers which activated the
slippage switches, and when they did, the activated slippage
switches caused the drive roller to be deenergized, and the
belt began to slow down.
Rather than permitting the belt
to come to a complete stop, the inspectors had the rollers
released after the belt had slowed to an unkown speed, and
when this was done, the belt started up to its normal speed
again.
Given these circumstances, I conclude and find that
the tests conducted by the inspectors indicated that the

2401

switches did precisely what they were expected to do. They
detected the induced slippage, they caused the contactors
to "drop out," thereby stopping the power to the drive motor,
which in turn caused the belt to slow down or come to a
"coasting" speed.
After careful consideration of all of the credible
testimony and evidence adduced in these proceedings, and
on the basis of the foregoing findings and conclusions, I
conclude and find that MSHA has failed to establish any
violations of § 75.1102. Accordingly, citations 2124157,
2124158, 2124159, and 2124160 ARE VACATED, and petitioner's
civil penalty proposals as to those citations ARE DISMISSED.
Dockets WEVA 83-252-R and WEVA 84-30
Fact of Violation - Citation No. 2124098
Inspector Teel confirmed that when he opened the lid
on the cited centrifugal switch, he looked at the switch
contacts and found that they would not open and the belt
would not shut down. Since the switch was obviously inoperative,
he issued the citation. When he returned the next day,
the switch would still not perform the way he expected it
to, and he extended the abatement time so that the switch
could be rewired.
Respondent has conceded and stipulated that the cited
slippage switch noted in Citation No. 2124098 was inoperative
and in violation of § 75.1102, but denies that the violation
was "significant and substantial." Accordingly, I conclude
that a violation of section 75.1102 has been established,
and the citation IS AFFIRMED.
Significant and Substantial
In its post-hearing brief, MSHA relies on the testimony
by Inspector Teel that he believed this violation to be
significant and substantial because the air along the beltway
in the particular area of the mine where the violation was
found was ventilated toward the face (Tr. 171). Conceding
that the manner in which the air was being coursed was an
approved part of the company's ventilation plan, and that the
inspector did not indicate any disapproval of the ventilation
system, MSHA nonetheless relies on the inspector's view
that it greatly increased the danger than an injury could
result from the violation since smoke generated by belt
slippage would be carried to the face and could result in
smoke inhalation injuries to the miners working at the face
(Tr. 162-166).

2 jo·~
2
~

.

In support of its arguments that the violation was not
"S & S," contestant/respondent maintains that Inspector Teel
indicated that when considering the condition and likelihood
of the occur.rence of a hazard in the area, it was possible
that he indicated to others present that he would not have
marked the citation as "S & S," but that he did so on the
instructions of his supervisor, MSHA Inspector George Vargo,
who had not been underground to see the conditions. Further,
contestant/respondent maintains that Mr. Teel marked the
citation "S & S" because he thought the air in the belt entry
should not have been coursed in the direction of the face,
even though the operator was doing so in compliance with
a ventilation plan modification approved by MSHA (Tr. 117-179).
In support of these contentions, contestant/respondent offered
the corroborating testimony of Mr. Burkhart, indicating that
Mr. Teel admitted to him that he would not have marked the
citation "S & S," but did so on instructions from his supervisor
(Tr. 392-393).
I fail to comprehend MSHA's position with respect to
the "S & S" finding made by Inspector Teel in connection
with citation 2124098. His principal concern was that the
manner in which the area was being ventilated would cause
any smoke from a fire to go to the face.
Yet, MSHA approved
the very same ventilation plan which the inspector is concerned
about. Further, MSHA's counsel conceded that the mine
operator here has not violated any ventilation regulations
or policies, and indicated as follows (Tr. 174-175):
JUDGE KOUTRAS: But if it were not for the
fact that the smoke would be directed toward
the face, there wouldn't be an S&S in this
case, would there?
MS. CRONAN: That's what the Inspector has
testified.
That was the determination
that was made.
JUDGE KOUTRAS:
So if you didn't have the
modification and the smoke still went to the
face, there would be another violation they
would be faced with?
MS. CRONAN:

That's right.

JUDGE KOUTRAS: But in this case, the approved
ventilation system, in the event of ·a fire, would
take the smoke to the face?
MS. CRONAN:

That's right.

2403

JUDGE KOUTRAS: That's significant and substantial
for the purposes of this but other than that, it's
okay.
It's perfectly legal to have the ventilation
system.that way.
MS. CRONAN:

Yes.

I believe that the contestant/respondent's assertion
that Inspector Teel was reluctant to mark the citation "S & S,"
and did so at the urging of his supervisor, is true.
Inspector Teel's reluctance to flat out admit this is
obviously tempered by the fact that he does not wish to offend
his supervisor.· However, Mr. Teel's admission that it is
"possible" that this occurred lends support to the contestant/
respondent's testimony concerning this issue, particularly
since MSHA did not call Supervisory Inspector Vargo to rebut
the allegation.
In connection with citation 2124099 (exhibit G-18),
Inspector Teel conceded that the deluge water devices in
the cited area were in working order, the fire resistant
belt and drive rollers were in proper order, the required
fire extinguishers were in place, the roof and ribs were
adequately blocked, and the area around the belt drive rollers
was wet and muddy (Tr. 179-180). He also confirmed that he
detected no smoke or fire hazard in the area, and observed
no belt friction (Tr. 186). When asked whether these same
safeguards were also in proper working order in connection
with citation 2124098, Inspector Teel responded "Yes" (Tr. 185).
During the second hearing day, after Inspectors Teel
and Sloan had testified, MSHA's counsel produced a copy of
a § 104 (a), "S & S" citation, no. 2123864, issued
by MSHA Inspector Charles W. Cline, at 11:30 a.m., August 12,
1983, citing a violation of mandatory standard § 75.1103
(exhibit G-21). The "condition or practice" is described
on the face of the citation as follows:
The automatic fire warning device for
the belt conveyors at this mine was (sic}
inoperative in that the system would not
give an audible and visual warning when
tested. The system in use is a CO
monitoring system. The inoperative
condition is due to damage to the central
computer unit from an electrical storm
8/11/83.

2404

Contestant/respondent asserts that even though the CO
monitoring system was rendered inoperative on August 12, 1983,
the reasonaple likelihood of the occurrence of any hazard
was reduced if not eliminated by the installation of cinder
block air stoppings and flaps to prevent the transmission
of any smoke to the working section following the storms
effect on the CO monitoring system the night of August 11,
1983 (Tr. 396). Further, contestant/respondent points out
that the CO monitoring system was only inoperative with
regard to the surface audible warning device, and that MSHA
has offered no evidence that this would have enhanced the
particular hazard potential. Contestant/respondent's
assertions are corroborated by the unrebutted testimony
of safety director Scaggs that the underground CO monitoring
system continued to function independently of the surf ace
system which had been rendered inoperative by the storm,
and that the two systems do in fact operate separately and
independently of each other (Tr. 431).
Finally, contestant/respondent points to the unrebutted
testimony of Mr. Scaggs indicating that the "S & S" finding
initially made by Inspector Cline with regard to citation
2123864, for the inoperative CO monitoring system, was
subsequently modified by Mr. Cline to delete his "S & S"
finding (Tr. 431-435).
I take particular note of the fact that in its posthearing
initial and reply briefs, MSHA counsel does not mention the
issuance of the aforementioned citation, and the briefs
contain no discussion as to how this citation may have
impacted on the "S & S" findings made by the inspector,
I also take note of the fact that Inspectors Teel and Sloan
were not recalled to rebut the testimony and evidence adduced
by the contestant/respondent with regard to this citation.
Arter careful consideration of all of the testimony
and evidence, I cannot conclude that MSHA has establish that
the inoperative slippage switch cited in citation no. 2124098,
was a significant and substantial violation, and its arguments
to the contrary ARE REJECTED.
Fact of Violation - Citation No. 2124099
Inspector Teel confirmed that during the past eight
years, he has been to the belt line 12 to 15 times and was
never aware of any belt slippage problems. He conceded
that prior to his inspection in this case, he had never
previously checked any belts, and he further conceded that
his inspection was prompted by a union complaint. Aside
from Mr. Teel's testimony concerning the tests in question,

I take particular note of the fact that he admitted that he
did not know the definition of a "slip switch," and that he
obviously had no guidance from MSHA since there are no
guidelines or policies as to how to interpret and apply
§ 75.1102.
Mr. Teel conceded that the tests he conducted on the
belts which he inspected were conducted in a similar manner
as those conducted by Inspector Sloan. With regard to
citation no. 2124099, Mr. Teel testified that he personally
tested the switch roller with a wedge, and when he engaged
the wedge and stopped the roller, the switch worked as it
was designed to work (Tr. 186). He observed no smoke, fire,
or friction hazards and the belt was driving normal· (Tr. 186).
His earlier direct testimony was that when he blocked the
roller, the belt drive unit shut down, but the belt kept
coasting. He conceded that had he not turned the roller loose,
the belt would have·"stayed down," and the conceded that
considering the way the switch was wired, this is precisely
what it was supposed to do (Tr. 155-156).
I conclude and find that MSHA has failed to establish
a violation of § 75.1102. Aside from any reservations.
concerning the credibility and integrity of the so-called
tests conducted by the inspectors in this case, Inspector
Teel's own testimony reflects that the slippage switches
performed as expected, and I conclude and find that MSHA
has failed to establish otherwise. Accordingly, citation
no. 2124099 IS VACATED, and MSHA's civil penalty proposal
IS DISMISSED.
Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business
On the basis of the stipulations by the parties, I
conclude that for purposes of civil penalty assessments,
the respondent is a medium sized operator and that the
penalties assessed will not adversely affect its ability
to continue in business.
History of Prior Violations
Respondent's history of prior violations is reflected
in a computer print-out listing the assessed and paid
violations for the period July 23, 1981 through July 22, 1983,
for the Beckley Mine.
The information reflects that the
respondent has made payment in the amount of $19,399 for
386 violations.
Three of these prior violations are for
violations of § 75.1102, and each was assessed as a "single
penalty assessment" in the amount of $20.

240G

Considering the size of the operation of the Beckley
Mine (722,300 tons a year), I conclude that the respondent
has a less than average prior history of compliance, and
I have taken this into account in assessing civil penalties
for the violations which have been affirmed.
Good Faith Compliance
The record here supports a finding that the respondent
abated the violations in good faith by rewiring the switches
to suit the inspectors.
Negligence
MSHA's posthearing briefs do not address the question
of neglige·nce. As to the two citations which have been
affirmed, since the respondent conceded that the cited
switches were inoperative, I can only conclude that the_
violations resulted from the respondent's failure to exercise
reasonable care, and that this constitutes ordinary negligence.
Gravity
Although I have concluded that the two violations
were non-"S & S", I believe that they were serious violations.
Since the switches were inoperative, it was altogether
possible that belt slippage would have gone undetected, with
the possibility of friction and smoke resulting from such
belt slippage.
Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of § llO(i) of the
Act, I conclude and find that the following civil penalty
assessments are appropriate for the citations which have been
affirmed:
Docket No. WEVA 84-30
Citation No.

Date

30 CFR Section

Assessment

2124098

8/11/83

75.1102

$75

Docket No. WEVA 84-31
Citation No.

Date

30 CFR Section

Assessment

2124155

8/11/83

75.1102

$75

2407

ORDER
Respondent IS ORDERED to pay the civil penalties assessed
by me, in.the amounts shown above, within thirty (30) days
of the date of these decisions. Upon receipt of payment by
MSHA, these proceedings are dismissed.

,-/~~~
Administrative Law Judge

Distribution:
Edward N. Hali, Esq., :?.O. Box 3969, Charleston, WV 25339
{Certified Mail)
Sheila K. Cronan, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203
{Certified Mail)

/slk

2408

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

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

OCT 4 1984

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 84-137
A.C. No. 46-05529-03505

v.
Docket No. WEVA 84-138
A.C. No. 46-05529-03507

JUMACRIS MINING, INC.,
Respondent

Jumacris No. 10 Mine
DECISION
Appearances:

Leo J. McGinn, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Mr. Floyd Barnette, Jr., Owner, Jumacris
Mining, Inc., Gilbert, West Virginia, for
Respondent.

Before:

Judge Kennedy

The captioned matters came on for an evidentiary hearing
in Paintsville, Kentucky, on July 11, 1984. As a result, the
trial judge entered tentative bench decisions with respect to
three of the four violations that appear at pages 184, 234,
and 272 of the transcript finding the violations charged did,
in fact, occur and assessing penalties as follows:
Citation 2145237 - $300
Order
2145238 - $1,000
Order
2145239 - $250
Finally, the trial judge entered an order approving
settlement of Order· 2145240 in the amount of $300 (Tr. 282).
After receipt of the transcript an order issued to show cause
why the tentative bench decisions should not be affirmed as
the trial judge's final disposition and decision in this
matter.

No cause to the contrary having been shown, it is
ORDERED that the tentative bench decisions and order approving
settlement be, and hereby are, ADOPTED and AFFIRMED as the
final decision in this matter. It is FURTHER ORDERED that
the operator pay the amount. of the penalties assessed and
agreed upon, in the amount of $1,850 on or before Friday,
October 26, 1984, and the captio
matters·DISMISSED.

Distribution:
Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified
Mail)
Mr. Floyd Barnette, Jr., Owner, Jumacris Mining, Inc., Drawer D,
Gilbert, WV 25621
(Certified .Mail)

/ejp

2410

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

KITT ENERGY CORPORATION,
Contestant

OCT 4 1984

CONTEST PROCEEDING

v.

Docket No. WEVA 83-125-R
Order No. 2115977; 3/24/83

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

Kitt No. 1 Mine

DECISION
Appearances:

Bronius K. Taoras, Esq., Kitt Energy Corp.,
Meadow Lands, Pennsylvania, for Contestant;
Howard K. Agran, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Respondent.

Before:

Judge Fauver

This is a contest proceeding under section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801,
et seq., to review a section 104(d) (2) order issued by a
federal mine inspector at the Kitt No. 1 Mine on March 24, 1983.
The order cites a violation of 30 CFR § 75.503 in that
(1) unauthorized modifications were made to the longwall
equipment in use at the mine, and (2) the equipment was not
maintained in permissible condition.
The subject order is based upon a previous section 104(d) (2)
order issued at Kitt Mine on December 1, 1982, during a previous
regular quarterly inspection.
Kitt Energy contests the March 24, 1983, order on the
ground that a clean inspection of the mine had occurred since
the last preceding section 104(d) (2) order. Two other
issues are (1) whether Kitt Energy's failure to obtain approval
of mine equipment under 30 C.F.R. Part 18 was a violation of
30 C.F.R. § 75.503 and (2) whether its failure to maintain the
equipment in permissible condition was unwarrantable.
The case was heard at Falls Church, Virginia.
Having considered the testimony, exhibits, and the record
as a whole, I find that a preponderance of the reliable,
substantial, and probative evidence establishes the following:

FINDINGS OF FACT
1.
Kitt Energy Corporation is the owner and operator of
Kitt No. 1 Mine, located at Phillippi, Barbour County, West
Virginia. At all relevant times the mine produced coal for
sale or use in or affecting.interstate commerce.
2.
A quarterly inspection by MSHA is a complete inspection
of the mine and may involve a number of visits to the various
sections of the mine.
3.
MSHA' s first quarterly inspection of Kitt No .. 1
Mine for Fiscal Year 1983 began on October 14, 1982, and
continued until its completion on December 17, 1982. During
that inspection, on December 1, 1982, Inspector John Paul
Phillips issued a section 104(d) (1) citation and modified it
to a section 104(d) (2) order.
4.
MSHA began its second quarterly inspection (FY 83)
at Kitt No. 1 Mine on January 12, 1983, and completed it on
March 29, 1983. On March 24, 1983, during the second quarterly
inspection, MSHA Resident Inspector Frank Cervo made an
inspection of the mine's surface area with Mining Engineer
Barry Ryan to follow up· on
employee complaint that there
were hazardous chemicals in that area. Prior to March 24,
1983, Cervo had inspected everything on the surface but for
the chemicals, which he had not previously inspected. His
inspection on March 24 took about 8 hours to conduct including
travel time.
·

an

5.
On March 25, 1983, Assistant Resident Inspector
Bretzel Allen conducted an inspection of the U Mains area of
the mine to check on abatement of conditions cited the day
before.
6.
Frank Cervo and Bretzel Allen were assigned by
MSHA to Kitt No. 1 Mine as resident inspector and assistant
to the resident, respectively, becaqse the Kitt No. 1 Mine
is considered a more hazardous mine~ The mine liberates
about 3 million cubic feet of methane per day and is on the
section 103(i) spot inspection list, which requires inspections
every 5 days (for mines liberating more than 1 million cubic
feet of methane per day) .
7.
Methane can be liberated at any time at the Longwall
at the Kitt No. 1 Mine, but is liberated particularly during
the extraction of coal. Sources of methane at the Longwall
are the face itself and the gob area behind it.
8.
On Monday, March 21, 1983 (during the 2nd quarterly
inspection) , Electrical Inspector Wayne Fetty began an

electrical inspection of Kitt No. 1 Mine. He had been assigned
to assist fellow Electrical Inspector John Paul Phillips who
had. conducted a required annual electrical inspection of the
mine almost one year earlier.
9.
During the evening of March 21, 1983, Fetty was
contacted at his home by his supervisor, Paul M. Hall, Chief
Electrical Engineer for Special Services, District 3, and
advised that there may have been an unauthorized field change
on the Section D-5 Longwall. In order to inspect the Longwall,
Fetty arranged with Hall to obtain a copy of the electrical
diagram for the Longwall kept in the Morgantown MSHA office
on Wednesday, March 23, 1983.
10.
On Tuesday, March 22, 1983, while at the mine, Fetty
asked several miners if there had been any changes to the
Longwall Mining Unit and was told that the Eickhoff Shearer
had been removed and replaced with a Joy Shearer. The next
day, while checking at the MSHA District office in Morgantown,
he learned that no documents were on file showing a company
application for field modification for the change of shearers.
11.
On Wednesday, March 23, 1983, Inspector Fetty was
instructed by his supervisor, Mike Lawless, not to issue an
unwarrantable failure violation if he found a violation that
involved merely a technical violation.
12.
On March 24, 1983, Fetty returned to Kitt No. 1
Mine. Before entering the mine, Fetty, accompanied by fellow
Electrical Inspector James Cross, met with Kirby Smith, General
Maintenance Foreman, Roger Harris, Longwall Maintenance Foreman,
and Bob Evans, Superintendent of Kitt No. 1 Mine, and others
and asked them if the shearer in the Longwall operation had
been changed from an Eickhoff to a Joy Model without making an
application for a field change. The company representatives
stated that they had changed shearers and had not made an
application for a field change, but they believed it was not
necessary. Fetty asked if any other changes had been made
on the Longwall and was told by Smith, Harris and Evans,
"No, none whatsoever."
13.
In answer to questions as to what he would do underground, Fetty replied that he could not say until he had
actually inspected the Longwall and had seen the conditions
himself.
14.
Following the meeting at the mine on the morning
of March 24, 1983, Fetty, accompanied by James Cross, Ron Cross,
Kirby Smith, Roger Harris and Union Representative Roger
Mitchell, went underground to the Section D-5 Longwall,
arriving at about 10:35 a.m.

15.
On arriving at the Longwall, Kirby Smith instructed
the Section Foreman to deenergize the Longwall. After this
was done the inspection commenced.
16.
The Longwall operation involves a number of machines
which working together serve to cut coal along a 575 foot face
and convey the coal onto conveyor belts. The shearer cuts
the coal as it travels the length of the coal face. The
coal is dumped onto the face conveyor (pan line) , which is
driven by motors at either end to convey the coal to the
stage loader and onto the mine's belt system.
17.
On examining the D-5 Longwall unit, Fetty observed
that about 80% of the Longwall equipment had been changed.
Specifically, he found that:
(1)
The shearer had been changed from an Eickhoff
to a Joy model.
(2)

The pan line (conveyor line) had been replaced.

(3)
The Siemens Allis motors that powered the pan
line at the headgate and at the tailgate had been replaced
by Reliance motors.
(4)
The headgate and tailgate junction boxes had
been replaced.
18.
Kitt Energy had not applied to MSHA for approval
of the above changes.
19.
Fetty also observed the following conditions,
which he found to be hazardous:
(1)
The cable entering the head conveyor junction
box was loose indicating that it was inadequately packed.
(2)
The mid face junction box cable on the outby
side was loose and could be worked in and out freely, indicating
that it was inadequately packed.
(3)
The cable entering the tail conveyor junction
box had been pulled completely out of the packing gland. The
outer jacket of the cable had been pulled back for 3 to 4
inches leaving the conductors and ground wire rubbing against
the metal packing gland nut.
There was no packing at all left
in the junction box and the base conductor wires, pilot wire
and grounding wire had all been left exposed.

2414

(4)
The inside of each of the junction boxes was
rusted, wet and contained accumulations of coal dust.
(5)
There was no clamping at all for the cables
entering the head conveyor junction box and the tail conveyor
junction box.
20.
The loose and missing packing glands for the head
face, mid face and tail gate junction boxes did not provide
the flame path protection required to prevent the escape of
flames from the junction boxes should an ignition occur inside.
Thus, the junction boxes were not permissible.
21.
The electrical cables linking the head face, mid
face and tail gate junction boxes were subject to the movement inherent in the operation of the pan line. Since there
were neither clamps nor packing glands to restrain movement
of the cables, the cables were subject to rubbing against
packing nuts and straining the internal connections within
the junction boxes.
22.
Sparks and ignitions are likely within the junction
boxes if lead wires come into contact with the junction box
frames.
Loosening electrical connections within the junction
boxes may generate heat causing the breakdown of the wires'
insulation and thus cause bare wires to contact the box
frames.
23.
Each of the junction boxes had become rusty, wet
and had accumulated coal dust. Since the Longwall area was
subject to the liberation of methan~ and the generation of
coal dust, the junction boxes were hazardous, and lacked
the protection that properly maintained packing glands would
have provided to contain flames and explosions. A fire or
explosion in one of the junction boxes could have easily
spread outside the box to the surrounding atmosphere in the
mine.
24.
After Fetty had discovered the modifications to
the Longwall unit and the hazardous conditions listed above,
he issued a section 104(d) (2) withdrawal order, citing
unauthorized modifications and permissibility violations.
25.
Petitioner was aware of the official process by which
approvals, certifications and modifications are to be obtained.
For example:
(1)
During the summer of 1981, prior to the startup
of the mine's 1st Longwall operation on Section D-3, Inspectors
Fetty and Shuttlesworth along with Electrical Engineer Hall

2415

met with company personnel to discuss all aspects of Longwall
certification and approval, including filing for modifications
after approval. Also, they advised the Operator to contact
MSHA's Approval and Certification office if they had any
problems or questions.
·
(2)
Before the 1981 meetings, in June 1979,
General Maintenance Foreman Kirby Smith had filed modification requests with MSHA with respect to lights for 12 S&S
Scoops at the Mine.
(3)
On August 10, 1982, Longwall Maintenance
Foreman Roger c. Harris filed a field modification request
with MSHA for the Longwall stage loader.
26.
Petitioner was aware of the need to properly
maintain packing glands and strain clamps as these matters
were listed as discrepancies and abated prior to the startup of its D-3 Longwall system in January of 1982.
27.
On March 24, 1983, at a meeting between Inspectors
Fetty and Cross and management representatives, it was
agreed:
(1) the Longwall would be reinspected to determine
whether the hazardous conditions cited had been corrected;
(2) if other hazardous conditions were observed they would
be cited; (3) the Operator would prepare an engineering
drawing and letter requesting a field modification for all
machinery changed on the Longwall; and (4) the section
104(d) (2) order would be modified permitting the Longwall
Unit to operate pending approval of the modifications
requested.
28.
Inspectors Fetty and Cross reinspected the Longwall.
In the process, they determined the abatement of the conditions
previously cited and issued citations for additional violations noted. When all violations were found to be abated,
Order No. 2115977 was "modified to permit the Longwall
mining unit to be operated until MSHA provides formal approval
for the modified mining unit," at 8:30 p.m., March 24, 1984.
DISCUSSION WITH FURTHER FINDINGS
I.

Was there a "clean" inspection before the
March 24, 1983 order?

The threshold issue is whether the Secretary of Labor met
his burden of proving that a "clean" inspection of the mine had
not occurred between the last preceding section 104(c) (2) order
(December 1, 1982) and the date of the order at issue (March 24,
1983).

Section 104(d) 1/ of the Act creates an enforcement tool
which-gives the Secretary increased sanctions in the form of
withdrawal (closure) orders to operators who repeatedly
allow violations to occur through an unwarrantable failure
to comply with mandatory health and safety standards.
In
essence, it authorizes the Secretary to issue withdrawal
orders for a certain chain of violations, the chain to be
broken only by a "clean" inspection of the entire mine. The
question here is whether such a complete inspection of the
Kitt Mine took place between the date of the preceding
104(d) (2) order December 1, 1982, and March 24, 1983.

!/

Section 104(d) provides:
"(1) If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger,
such violation is of such nature as could significantly and
substantially contribute to the cause and effect of a coal
or other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation
given to the operator under this Act.
If, during the same
inspection or any subsequent inspection of such mine within
90 days after the issuance of such citation, an authorized
reperesentative of the Secretary finds another violation of
any mandatory health or safety standard and finds such violation to be also caused by an unwarrantable failure of such
operator to so comply, he shall forthwith issue an order
requiring. the operator to cause all persons in the area
affected by such violation, except those persons referred
to in subsection (c) to be withdrawn from, and to be prohibited from entering, ~uch area until an authorized representative of the Secretary determines that such violation
has been abated.
"(2)
If a withdrawal order with respect to any area in
a coal or other mine has been issued pursuant to paragraph (1),
a withdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar
to those that resulted in the issuance of the withdrawal
order under paragraph (1) until such time as an inspection of
such mine discloses no similar violations. Following an
inspection of such mine which discloses no similar violations,
the provisions of paragraph (1) shall again be applicable to
that mine."

2417

Although the Act does not define what constitutes a
complete inspection of a mine, several Commission decisions
have held that a complete inspection of a mine is not synonymous
with a complete regular quarterly inspection.
In Secretary of Labor (MSHA) v. C F & I Steel Corporation,
2 FMSHRC, 3459 (1980), the Commission held that the burden of
proving the absence of a clean· inspection is on MSHA as part
of its prima facie case to sustain the order.
It went on to
say that "nothing in the record . . • suggests that the
Secretary's position -- that only a complete regular quarterly
inspection can constitute a 'clean' inspection of the entire
mine -- is necessary" to further the public interest in promoting
compliance with mandatory safety and health standards.
In Secretary of Labor (MSHA) v. United States Steel
Corporation,. 3 FMSHRC 5 (1981), the Commission again held that
MSHA must establish the absence of a "clean" inspection after
the issuance of a 104(d} (1) order as part of its prima facie
case.
In Secretary of Labor (MSHA) v. Old Ben Coal Company,
3 FMSHRC 1186 (1981), the Commission upheld an administrative
law judge's vacating of a 104(d) (2) order where the complete
inspection of the mine was comprised of a series of spot
inspections and regular inspections which were not a complete
regular quarterly inspection.
In this case MSHA has established only that a complete
regular quarterly inspection had not been finished by
March 24, 1983. Mr. Cervo, the resident inspector, felt that
until a closeout meeting was held and he completed his paper
work, the regular quarterly inspection was not over and,
therefore, the mine was not completely inspected. This is
the position that MSHA took in the Old Ben case, supra,
which the Commission rejected.
All areas of the Kitt No. 1 Mine had' been inspected between
December 2, 1982, and March 23, 1983. Only two regular "AAA"
inspections were conducted after March 23, 1983, and both of
those were to check on two specific items.
They were Mr. Cervo's
inspection of the suspected hazardous chemicals on the surf ace
on March 24, 1983, and Mr. Allen's inspection of U-Mains on
March 25, 1983, to check the abatement of a citation issued the
previous day during a spot inspection. Both of the areas visited
in those two inspections had been completely inspected earlier
in the course of the regular quarterly inspection.
It was also brought out in testimony by Petitioner that
numerous inspections had occurred between January 19, 1983, and
March 23, 1983. Petitioner's Exhibits 6 and 7 show that the

2418

entire mine was completely inspected through numerous visits
by MSHA. inspectors to all areas of the Kitt No. 1 Mine. This
testimony was not disputed.
In fact, Mr. Cervo's testimony
supported it.
MSHA has failed to pass the threshold requirement of
showing that a clean inspection of the mine had not occurred
since the last preceding 104(d) (2) order on December 1, 1982.
Therefore, the 104(d) (2) order by Inspector Fetty of March 24,
1983, must fail.
The proper chain to support such an order
was missing.
Independent of this holding, the underlying 104(d) (2)
order of December 1, 1982, in this case, has recently been
invalidated by the Commission because of an intervening clean
inspection before December 1, 1982. Secretary of Labor v.
Kitt Energy Corpcration, WEVA 83-65-R, decided July 18, 1984.
Such holding is a further ground for invalidating the 104(d) (2)
order at issue in this case.
Accordingly, the March 24, 1983, order will be invalidated.
However, that does not end the case, because the Secretary
charged violations in the order. The issues concerning those
allegations must be resolved and, if charges of violations are
sustained, the 104(d) (2) order should be converted into a
section 104(a) citation to the extent of the valid charges.
II.

Did the failure to obtain final approval of D-5
Longwall equipment pursuant to 30 CFR Part 18
constitute a violation of 30 C.F.R. §75.503?

Order No. 2115977 contains charges of violation of
30 C.F.R. §75.503 which include Petitioner's implementation of
unauthorized modifications to its Longwall Mining Unit, the
Operator's failure to maintain adequate packing to secure and
provide protection for cables entering junction boxes and the
Operator's failure to provide and maintain clamping for cables
entering the head face and tail face motor junction boxes.
At the hearing Petitioner stipulated that certain charges
listed in Order No. 2115977 constituted violations of 30 C.F.R.
§75.503:
It was also discovered that the following
permissibility violations existed.
(1) The 4/0 3/C
type SHD-GC cable is not provided with an adequate
amount of packing, where the cable is entering the
head face motor junction box, the cable can be moved
freely by hand.
(2)
The 4/0 3/C type SHD-GC trailing
cable is not provided with adequate packing where

2419

1t enters the mid-face junction box XP 1665-25 on
the outby side, the cable is loose and the packing
nut can be turned freely by hand and the cable pulled
in and out freely.
(3)
The 4/0 3/C type SHD-GC cable
for the 250 HP reliance tail conveyor motor XP 1478-94
is pulled out of the junction box through the packing
nut exposing the conductors in the cable.
(Tr. 14.)
A main issue is whether the failure to obtain approval
of changes in the Longwall equipment, as required by 30
C.F.R. Part 18, constituted a violation of section 75.503.
30 C.F.R. § 75.503 states:
Section 75.503.

Permissible electric face equipment;
maintenance

The operator of each coaJ rr.ine shall maintain in
permissible condition all electric face equipment
required by §§75.500, 75.501, 75.504 to be permissible
which is taken into or used inby the last open
crosscut of any such mine.
Section 75.503 does not set the standards for permissibility; it requires only that certain equipment be maintained in permissible condition.
The Act, in section 318(i), defines "permissible" as
follows:
"permissible" as applied to electric face equipment means all electrically operated equipment
taken into or used inby the last open crosscut of an
entry or a room of any coal mine the electrical
parts of which, including, but not limited to,
associated electrical equipment, components, and
accessories, are designed, constructed, and installed,
in accordance with the specifications of the Secretary,
to assure that such equipment will not cause a mine
explosion or mine fire, and the other feature of
which are designed and constructed, in accordance
with the specifications of the Secretary, to prevent,
to the greatest extent possible, other accidents in
the use of such equipment; and the regulations of the
Secretary or the Director of the Bureau of Mines in
effect on the operative date of this title relating
to the requirements for investigation, testing,
approval, certification, and acceptance of such
equipment as permissible shall continue in effect
until modified or superseded by the Secretary, except
that the Secretary shall provide procedures, including,

2 .• "0
'f~

where feasible, testing, approval, certification,
and acceptance in the field by an authorized representative of the Secretary, to facilitate compliance
by an.operator with the requirements of section 305(a)
of this title within the periods prescribed therein;
In order to meet the permissibility standard of 30 C.F.R.
§75.503, the equipment must be built according to the requirements of Schedule 2G, which is set forth in 30 C.F.R. Part 18.
See, e.g., Kaiser Steel Corporation, IBMA 75-15, 3 IBMA 489
(1974~nd Eastern Associated Coal Corporation, IBMA 75-23,
75-25, 5 IBMA 185 (1975).
Accordingly, the requirement in 30 C.F.R. §75.503
that electric face equipment be maintained in "permissible
condition" refers to the requirements of Schedule 2G which
are set forth at 30 C.F.R. Part 18.
30 C.F.R. §18.15 requires that:
[i]f an applicant desires to change any feature
of approved equipment or a certified component,
he shall first obtain MSHA's concurrence pursuant
to the following procedure: * * *
Petitioner was an "applicant" because it was a "corporation" that controlled "the assembly of an electrical machine
or accessory" (30 C.F.R. §18.2, definition of "Applicant")
when it reassembled its Longwall Mining Unit at the D-5
location. As an "Applicant," Petitioner was required by
30 C.F.R. §§18.15 and 18.81 to apply in writing to the Approval
and Certification Center, MSHA, in advance of making the
changes to approved equipment so that MSHA could "determine
whether inspection or testing will be required. . . if there
is a possibility that the change(s) may adversely affect
safety" (§18.15(b)). MSHA would also need to determine
whether the "[p]roposed modifications . . . conform with the
applicable requirements of Subpart B of this part [Part §18],
and not substantially alter the basic functional design that
was originally approved for the equipment" (Part 18.18(b)).
The Longwall Mining Unit with the original Eikhoff
Shearer in place and the Siemens Allis Motors in place had
been approved by MSHA under MSHA Approval No. 2G-3365A-0
(Exhibit G-1, Electrical Component Layout). The record
establishes that Petitioner made changes to.its approved
Longwall Mining Unit and operated the unit with those changes
without complying with the requirements of 30 C.F.R. Part 18.
I hold that the changes in the Longwall equipment without
obtaining MSHA approval constituted a violation 0£ 30 C.F.R.
§75.503.

"),101
?... {;11..,,

III. Failure to provide or to maintain clamps
for the cable entering the Head face and
Tail face Motor Junction boxes.
At hearing it was established that there were no clamps
to protect the cables entering the head face conveyor junction
box and the tail face conveyor junction box against strain
from movement of the conveyor system.
Cable clamps are required by 30 C.F.R. §18.40 to be
provided:
for all portable (trailing) cables to prevent
strain on the cable terminals of a machine.
Also insulated clamps shall be provided to prevent
strain on both ends of each cable or cord leading
from a machine to a detached or separately mounted
component.
At hearing, Inspector Fetty testified that the cables
leading to the head face and tail face conveyor junction boxes
were "trailing cables" and not inr:er machine cables because
they are subject to the movement of the conveyor system
during the mining process (Tr. pp. 117-118). I accept this
definition and hold that Petitioner failed to comply with 30
C.F.R. §18.40. For the reasons set forth above, I hold that
this violation of 30 C.F.R. §18.40 constituted a failure to
"maintain . . . electric face equipmerd~ . . . in permissible
condition" and thus is also a violation of 30 C.F.R. §75.503.
IV.

Were the violations of 30 C.F.R. §75.503
"Unwarrantable"?

Petitioner's management officials intentionally modified
the existing approved Longwall Mining Unit by changing the
shearer, conveyor motors, pan line and accessories amounting
to some 80% of the Longwall Mining Unit, without applying to
MSHA for approval of the changes to the Longwall Mining Unit.
The management officials were aware of the approval and
modification processes required by MSHA, having discussed
them with MSHA representatives Fetty, Shuttlesworth and Hall
in the si.:mmer of 1981, and having filed Field Modification
requests concerning S&S Scoop tractors in June 1979 and the
Longwall stage loader in August 1982.
I hold that Petitioner's failure to comply with the
application and certification procedures was "unwarrantable."
If Petitioner had any question as to the requirement for an
application for approval of the: type modifications it planned,
it could have resolved the question by contacting MSHA to
see whether an application was needed.
By acting without

inquiring into the legality of its actions, it showed a
careless disregard for it statutory and regulatory duty as
an operator.
As to the other violations of section 75.503, a
thorough inspection of the Longwall Mining Unit conducted
by MSHA in January 1982 produced a long list of items that
needed correction by the operator prior to start up that
included numerous references to improperly packed packing
glands and cables not provided with adequate strain relief
(i.e., strain clamps). I find that Petitioner knew or should
have known of the packing gland and cable clamp violations and
corrected them before the inspection on March 24, 1983. I
therefore hold that these violations constituted an "unwarrantable" failure to comply.
CONCLUSIONS OF LAW
1.

The judge has jurisdiction over this proceeding.

2.
MSHA Order No. 2115977, March 24, 1983, is not valid
because the Secretary has not met his burden of proving that
an intervening "clean" inspection had not occurred. Order
No. 2115977 should be converted into a section 104(a) citation.
3.
The violations charged in Order No. 2115977 were
proved by the Secretary, by a preponderance of the evidence,
and each was proved to be an "unwarrantable" violation.
ORDER
WHEREFORE IT IS ORDERED that:
1.
MSHA Order No. 2115977 is MODIFIED to change it
from a section 104(d) (2) order into a section 104(a)
citation. As so modified, this citation including all the
charges therein is AFFIRMED.

4)~,;.. =r~t/1-

William Fauver
Administrative Law Judge

Distribution:
B. K. Taoras, Esq., Kitt Energy Corp., P.O. Box 500, 450 Race
Track Road, Meadow Lands, PA 15347
(Certified Mail)
Howard K. Agran, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market St., Philadelphia, PA 19104
(Certified
Mail)
Michael H. Holland, Esq., UMWA, 900 15th Street, N.W.,
Washington, DC 20005
(Certified Mail)
/ejp
•) ·)
2,..,, (1:i i:..,u

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

SECRETARY OF LABOR,
MINE SAFETY AND HE~LTH
ADMINISTRATION (MSH'A),
Petitloner

v.

OCT 9 1984

CIVIL PENALTY PROCERDING
Docket No! KENT 84-92
A/O No: 15-02162-03513
:

South Hopkins No. 2

SOUTH HOPKINS COAL COMPANY,
Respondent
DEFAULT DECISION
Appearances:

Carole M. Fernandez, Esq., Office of
the Solicitor, U.S. Department of Labor,
for Petitioner

Before:

Judge Moore

The above case was scheduled for hearing on September 5,
1984 at 10:00 A.M. in the Hopkins County Courthouse in
Madisonville, Kentucky. At 10:30 A.M. I made the following
statement:
"It is now 10:30 A.M. and respondent is
not present. My office has proof of
service of the Notice of Hearing and site
notice.
I hereby declare respondent in
default and will issue a formal order when
I return to my office."
As of the date of this decision being issued I have still
not heard from respondent.
I hereby confirm my oral ruling
that respondent is in default, AFFIRM the two citations
involved and assess a penalty of $242 against respondent.
Respondent is accordingly ORDERED to pay to MSHA,
within 30 days, a civil penalty in the amount of $242.
Respondent is further ORDERED to inform me, within 30
days, why it did not let me, the government's counsel,
or the inspector know that it did not intend to appear at the
hearing.

Charles C. Moore, Jr.
Administrative Law Judge

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
JAMES McNEIL TAYLOR,
Complainant

OCT 10 1984

DISCRIMINATION PROCEEDING
Docket No. WEVA 83-241-D
MSHA Case No. HOPE CD 83-25

v.

No. 4 Mine

BUCK GARDEN COAL COMPANY,
Respondent
DEFAULT ORDER
The operator having failed to show cause why it should
not be declared in default of its settlement agreement and
a final enforceable order entered in the captioned matter,
it is ORDERED that respondent be'· and hereby is, deemed in
default of its settlement agreem~nt and the Secretary
directed to take such action as
necessary to enforce
under section 106(b) of the Mine ~ct this final order of
default and dismissal of this caseArom the Commission's
docket.
,. ·

is

Joseph B. Kenn dy
Administrative Law
Distribution:
Catherine Oliver-Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, 3535 Market St., Philadelphia, PA
19104
(Certified Mail)
Richard L. Dailey, Esq., Attorney for Buck Garden Coal
Company, 608 Virginia Street, East, Charleton, WV 25301
(Certified Mail)
Dare McKinney, President, Buck Garden Coal Co., P.O. Box 145,
Gilboa, PA 26671
(Certified Mail)
James McNeil Taylor, Star Route 1, Box 2, Fenwick Mountain,
WV 26202
(Certified Mail)
/ejp

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

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

OCT l 0 i984

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 84-3-M
A.C. No. 29-01893-05502
Docket No. CENT 84-19-M
A.C. No. 29-01890-05501

v.
Portable Crushing Plant No.
3 & 4
SOUTHWAY CONSTRUCTION COMPANY,:
INC.,
Respondent

Docket No. WEST 84-27-M
A.C. No. 05-03880-05501 BY2
Docket No. WEST 84-28-M
A.C. No. 05-03880-05502 BY2
Union Carbide Pit

DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Ms. Izora Southway and Leroy Belt, Southway
Construction Company, Inc., Alamosa, Colorado,
pro se.

Before:

Judge Morris

These cases, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et~., (the
"Act">, arose from inspections of respondent's sand and gravel
operations in New Mexico and Colorado. The Secretary of Labor
seeks to impose civil penalties because respondent violated
regulations promulgated under the Act.
After notice to the parties, a hearing on the merits was
held in Alamosa, Colorado on August 28, 1984.
The parties waived the filing of post-trial briefs.
Issues
The issues are whether r·~spondent violated the regulations;
if so, what penalties are appropriate.
Stipulation
At the commencemont of the h~aring the parties stipulated
that the respondent was subjer;t to the Act (Tr. 8).

CENT 84-3-M
Ci~ation 2091920
This citation alleges a violation of Title 30, Code of
Federal Regulations, Section 56.14-1 which provides as follows:
Guards
56.14-1 Mandatory. Gears; sprockets; chains; drive,
head, tail, and takeup pulleys; flywheels; couplings;
shafts; sawblades; fan inlets; and similar exposed
moving machine parts which may be contacted by persons,
and which may cause injury to persons, shall be guarded.
Summary of the Evidence
During this inspection on August 10, 1983 near Wagon Mound,
New Mexico, MSHA Inspector Alfredo Garcia was accompanied by
Darrell Yohn, the company representative. A particular place in
the worksite came to the inspector's attention because a worker
was cleaning debris at a tail pulley. The worker was kneeling
on the ground about two feet from the end of the pulley. The
unguarded tail pulley was under the L.J. Crusher. Photographs
taken by the inspector showed the moving parts at the tail
pulley. (Transcript at pages 10 through 17, 27, 28; Exhibits Pl
and P2).
In the inspector's opinion, there was a hazard to this
worker. He could become entangled in the tail pulley. This
hazard was further complicated by the dusty conditions in the
immediate vicinity. In the event the worker were to be caught in
the tail pulley, injuries could range as high as a permanent
disability (Tr. 17-21).
Mrs. Izora Southway, an officer of respondent, testified
that Inspector Garcia was at this site and issued a citation on
March 23, 1983. However, Mrs. Southway pointed out that no
citation was issued at that time for this particular unguarded
tail pulley. Mrs. Southway felt that since the citation was not
issued at the time of the previous inspection it could not now be
a violation of a substantial and significant nature (Tr. 22-24).
Discussion
The evidence here establishes a violation of the guarding
standard, 30 C.F.R. S 56.14-1. It is true there was a guard
located above the tail pulley which would prevent access to the
area for anyone other than the employee who was cleaning the tail
pulley itself. It is, however, the general purpose of the
regulation to protect all employees and this would include the
clean-up man working at this location. Cf. Missouri Gravel
Company, 3 FMSHRC 2470 (1981).

Ths evidence further establishes that the violation is of a
significant and substantial nature. In view of the testimony and
experience of Inspector Garcia, I am unwilling to hold to the
contrary, Cf. Consolidation Coal Company, 6 FMSHRC 34, (1984).
It is true that there was a guard located above the tail
pulley. Photographs indicate that access was very limited for
the clean-up man (Exhibits Pl and P2 illustrate the access~)
These factors cause me to conclude that the negligence of the
operator is somewhat overstated. This issue is addressed in the
assessment of the civil penalty which is considered, infra.
The evidence offered by respondent concerns the failure of
Inspector Garcia to issue a citation for this violative condition
in March, 1983. This testimony essentially invokes the doctrine
of collateral estoppel. In short, should MSHA now be estoppedfrom claiming this violation occurred since it did not previously
issue a citation for this condition?
This case particularly illustrates the weakness in
respondent's argument. Inspector Garcia indicated that this
condition was brought to his attention because the cleanup man
was working at the end of the tail pulley. The position of this
man, his activities with his shovel and his close proximity to
the unguarded tai-1 pulley brought the entire matter into focus.
The citation was issued and properly so. The doctrine of
collateral estoppel should not and cannot be invoked here to deny
miners the protection of the Mine Safety Act. I have previously
refused to apply the doctrine in similar circumstances. Servtex
Materials Company, 5 FMSHRC 1359 (1983); Kennecott Minerals
Company, WEST 82-155-M, August 1984; also on the issue of collateral estoppel, see the Commission decision in King Knob Coal
Company, Inc., 3 FMSHRC 1417 (1981).
The citation should be affirmed.
CENT 84-19-M
Citations 2090946, 2090947, 2090948
§

The above citations allege separate violations of 30 C.F.R.
56.5-l(a) and 5-5 which provides:
Air Quality
56.5-1 Mandatory. Except as permitted by § 56.5-5:
(a) Except as provided in paragraph Cb), the exposure
to airborne contaminants shall not exceed, on the basis

2428

of a time weighted average, the threshold limit values
adopted by the American Conference of Governmental Industrial Hygienists, as set forth and explained in the
1973 edition of the Conference's publication, entitled
"TLV's Threshold Limit Values for Chemical Substances
in Workroom Air Adopted by ACGIH for 1973," pages 1
through 54, which are hereby incorporated by reference
and made a part hereof. This publication may be obtained from the American Conference of Governmental
Industrial Hygienists by writing to the SecretaryTreasurer, P.O. Box 1937, Cincinnati, Ohio 45201, or may
be examined in any Metal and Nonmetal Mine Health and
Safety District or Subdistrict Off ice of the Mining
Enforcement and Safety Administration. Excursions above
the listed thresholds shall not be of a greater magnitude than is characterized as permissible by the Conference.
56.5-5 Mandatory. Control of employee exposure to
harmful airborne contaminants shall be, insofar as
feasible, by prevention of contamination, removal by
exhaust ventilation, or by dilution with uncontaminated air. However, where accepted engineering control
measures have not been developed or when necessary by
the nature of work involved (for example, while establishing controls or occasional entry into hazardous
atmospheres to perform maintenance or investigation),
employees may work for reasonable periods of time in
concentrations of airborne contaminants exceeding permissible levels if they are protected by appropriate
respiratory protective equipment. Whenever respiratory
protective equipment is used a program for selection,
maintenance, training, fitting, supervision, cleaning,
and use shall meet the following minimum requirements:
·(a) Mining Enforcement and Safety Administration approved respirators which are applicable and suitable
for the purpose intended shall be furnished, and employees shall use the protective equipment in accordance with training and instruction.
Cb) A respirator program consistent with the requirements of ANSI Z88.2-1969, published by the American
National Standards Institute and entitled "American
National Standards Practices for Respiratory Protection
ANSI Z88.2-1969," approved August 11, 1969, which is
hereby incorporated by reference and made a part hereof.

n
•. : . l

.~

f);.:J

± f.., ti.J

This publication may be obtained from the American National Standards Institute, Inc., 1430 Broadway, New
York, New York 10018, or may be examined in any Metal
an~ Nonmetal Mine Health and Safety District or Subdistrict Off ice of the Mining Enforcement and Safety
Administration.
(c) When respiratory protection is used in atmospheres
immediately harmful to life, the presence of at least
one other person with backup equipment and rescue capability shall be required in the event of failure of the
respiratory equipment .
.summary of the Evidence
On May 23, 1983, MSHA Inspector Archie Fuller inspected
respondent's worksite two miles northeast of Blanco, New Mexico.
The location was a basic sand and gravel operation with three
workers at the site (Tr. 79-81).
The inspector placed a Bendix dust pump on the lapel of each
worker and sampled them for nine hours of an eleven-hour shift.
The filters had been pre-weighed, numbered and marked. At this
time the foreman, as the primary loader operator, would change
off with the crusher operator about half of the time. The
clean-up man drove the water truck. At the commencement of the
inspection the inspector requested that the workmen perform their
normal duties as far as was possible. At the conclusion of the
sampling, he sealed the samples and forwarded them to MSHA for an
analysis (Tr. 81-84, 87, 88).
The sampling results obtained from MSHA's technical
laboratory indicated the following exposures for which citations
were issued:
Occupation and
Location
Loader Opera tor (Foreman)

Sampling
Time-min
540

Crusher Opera tor
Plant Laborer

TWA
'rLV
mg/m3 mg/m3
.515
.377

Sample
Wt.-mg
.420

SI02
Wt.-mg
.103

24.52

540

.344

.097

28.19

.422

.331

540

23.34
.499
.407
.095
(Tr. 84-86; Exhibit P-4)

.395

%SI02

The company had respirators on the jobsite but they were not
being worn. There was very little visible dust to be seen.
In
the inspector's opinion, the company should have been aware of
the silica dust problems due to prior MSHA inspections (Tr.
86-90, 93).

2430

Respondent's evidence shows that on August 2, 1983, this
particular worksite was inspected by the same compliance officer.
At that time the company was found to be in compliance with this
regulation.
Discussion
The evidence establishes that each of the employees was
over-exposed to silica dust. Cf. Climax Molybdenum Company, a
division of Amax, Inc., 2 FMSHRC 2748 (1980).
The mere fact that an inspection in August, 1983 revealed
the company was in compliance does not constitute a defense to
the violations that occurred on May 23, 1983.
The three citations should be affirmed.
WEST 84-27-M
Citation 2096998
This citation alleges a violation of 30 C.F.R. § 56.15-4
which provides:
56.15-4 Mandatory. All persons shall wear safety
glasses, goggles, or face shields or other suitable
protective devices when in or around an area of a
mine or plant wh~re a hazard exists which could cause
injury to unprotected eyes.
Summary of the Evidence
Respondent was crushing rock for Corn Construction Company
near Rifle, Colorado when MSHA Inspector Michael T. Dennehy
arrived at the worksite before 8:00 a.m. on August 16, 1983. He
contacted the company representative, Jim Farley. Before
commencing his activities, Inspector Dennehy told Farley that he
would be inspecting the area and he suggested that all of the
employees wear their safety equipment. At that time it was established that there was only one pair of safety glasses available for the three workers at the jobsite. At that point one of
the employees was designated to wear the available safety glasses
(Tr. 30-35, 37).
Inspector Dennehy then proceeded with his inspection.
During the course of his activities he saw a worker striking
metal to metal.
He was hammering a metal guard into place. In
addition, the worker, who had been designated to wear the safety
glasses, was in fact, w~aring sunglasses. The sunglasses did not
meet safety specifications. Sunglasses, such as he was wearing,

complicates the hazard because those glasses could shatter if
struck with a piece of metal (Tr. 32, 33).
It is c·ommon practice in the industry to wear safety glasses
when striking metal to metal.
If this worker continued the
practice there would be a substantial likelihood that an injury
would occur (Tr. 34, 36).
Respondent offered no evidence to rebut this violation.
Discussion
The evidenc~ establishes a violation of 30 C.F.R. § 56.15-4.
This particular miner was without safety glasses or other suitable protection when he was striking metal to metal. The hazard
was clear. Unprotected eyes could be injured.
The citation should be affirmed.
WEST 84-28-M
Citation 2096710
This citation alleges a violation of 30 C.F.R. § 56.5-1,
cited, supra.
Summary of the Evidence
On the day he issued the citation for the failure to have
safety glasses Inspector Dennehy conducted a dust and noise
survey at the Union Carbide pit (Tr. 40-41, 53).
Inspector Dennehy prepared for his survey by precalibrating
his pumps, then numbering them, and sealing the filters.
He
monitored two miners for an entire day. The sampling device was
placed on respondent's employee Phil Miller, the clean-up man.
At the conclusion of the work day Inspector Dennehy resealed the
filters, recalibrated his pumps, and turned them in to be weighed.
In the inspector's opinion, the samples were very valid (Tr. 41,
42) •
An MSHA analysis of the sample established that Miller's
exposure was 1.6 times over the TLV for silica. There was some
visible dust present in the area, as well as some water sprays.
MSHA advised the company of its analysis of the silica dust
(Exhibit P3). Employee Miller, who was not wearing any personal
protective equipment, was exposed to a dust concentration consisting of 16.21 percent silica. The citation itself was issued
after the inspector received the technical data from MSHA's staff
(Tr . 4 2 - 4 3 ; Exhibit P 3 ) .
Witness Richard Durand, an MSHA industrial hygienist and a
person experienced in the effects of silicosis on the human body,

testified in the case. 1/ Witness Durand indicated that a 16
percent concentration of silica dust is relatively high. However, sand and gravel operations usually average silica dust
concentrations in the vicinity of 16 to 20 percent (Tr. 55-58).
Silica affects a person's lungs. Fibrosis can result.
After a person has been exposed, the scarring may progress
further without any additional exposure. The disease and lung
problems progress in tandem. As the lungs lose their elasticity,
the heart, in turn, must pump harder (Tr. 58-61).
If an individual has been exposed to silicosis, he is
thereby susceptible to tuberculosis. A chronic silicosis can
develop from an exposure from about 1 to 16 percent over a long
period of time.
Acute silicosis can develop when there is an
exposure above fifty percent for a period of two to five years.
The witness considered any exposure above fifty percent to be
high (Tr. 60-63, 69, 73).
Disability or death can be the ultimate results (Tr. 60-61,
7 3) •

If workers are not wearing respirators then·their problems
with silica can be greatly enhanced.
Respondent offered no evidence to rebut the foregoing
evidence.
Discussion
The evidence here establishes a violation of the regulation.
The exposure to employee Miller to silica dust was 1.6 times of
the threshold limit value.
On the uncontroverted evidence, the citation should be
affirmed.
CIVIL PENALTIES
The statutory criteria for assessing a civil penalty is
contained in 30 u.s.c. § 820(i).
It provides as follows:

1/ Witness Durant's testimony was offered in connection with
WEST 84-28-M and CENT 84-19-M.

The Commission shall h;ive authority to assess all
civil penalties provided in this Act.
In assessing
civil monetary penalties; the Commission shall consider
the operator's history of previous violations, the
appropriateness of such penalty to the size of the
business of the operator charged, whether the operator
was negligent, the effect on the operator's ability to
continue in business, the gravity of the violation, and
the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notif ication of a violation.
In considering these factors I find that respondent had 64
citations issued against it in 1983. These were the result of 14
inspections at five different worksites (Tr. 115-116). Respondent's operations are highly mobile involving as many as 30
different sites a year (Tr. 116).
Respondent's prior citations were assessed a single penalty
(Tr. 115, 116). Respondent contends that the citations in
contest here should be assessed on the same basis. I reject this
view. The Commission is bound by the statutory criteria and has
rejected the Secretary's single assessment regulation. United
States Steel Mining Co., Inc., 6 FMSHRC 1148 (1984).
Mrs. Southway testified that in
51,136 man hours with no.injuries at
116, 117). The company has three to
with a maximum of about 20 employees

1983 the company compiled
all of the mine sites (Tr.
four employees at each site
(Tr. 117).

Mrs. Southway's testimony established that the company
provided protective equipment in their plants. Further, the
employees were instructed in their use, and they understood the
MSHA regulations.
I accept Mrs. Southway's testimony but an
operator must do more than merely furnish protective equipment.
It is the company's obligation to insist on the use of such
equipment by its employee. This obligation can be met by
training and other means.
I consider the operator was negligent
as noted in connection with each citation.
Mrs. Southway indicated the monetary significance of the
penalties was not extreme. But she was concerned about the later
effect of these citations on the company (Tr. 120). The general
statutory scheme of imposing penalties seeks to promote an
operator's efforts to provide for the safety and health of its
miners. Since the violations have been established in these
cases a penalty in accordance with the statutory criteria must be
assessed.

9 :1!")1-i

/._, 'J; u :J.

The gravity of each violation appears in the record. As
previously stated the negligence concerning Citation 2091920
(unguarded tail pulley) is overstated. The penalty should be
reduced to $25.00. The three citations in CENT 84-19-M relate to
silica dust and a civil penalty of $30.00 is proposed for each.
On the other hand, in WEST 84-28-M, the Secretary proposes a
penalty of $63.00 for a single exposure to silica dust. Considering the statutory criteria I believe that the penalty for
Citation 2096710 should be reduced to $30.00 from $63.00.
It is to respondent's credit that it abated all of the
violative conditions (Tr. 121).
After carefully considering the statutory criteria, I deem
that the penalties noted hereafter are appropriate and they
should be affirmed.
Proposed
Assessment
$54.00
30.00
30.00
30.00
68.00
63.00

Citation No.
2091920
2090946
2090947
2096948
2096998
2096710

Disposition
$ 25.00
30.00
30.00
30.00
68.00
30.00

Accordingly, based on the foregoing findings of fact and
conclusions of law I enter the following:
ORDER
1. In CENT 84-3-M: Citation 2091920 is affirmed and a
penalty of $25.00 is assessed.
2.
In CENT 84-19-M: Citations 2090946, 2090947, and 2090948
and penalties of $30.00 for each such violation are assessed.
3.
In WEST 84-27-M: Citation 2096998 is affirmed and the
proposed penalty of $68.00 is assessed.
4.
In WEST 84-28-M: Citation 2096710 is affirmed and a
penalty of $30.00 is assessed.
5. Respondent is ordered to pay to the Secretary the sum of
$213.00 within 40 days of the date of this decision .
.

.~

,John J. 4 r i s

Admini~~~ive Law Judge

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
Colorado 80294
(Certified Mail)
Mrs. Izora Southway and Mr. Leroy Belt, Southway Construction
Company, Inc., 117 White Pine Drive, Alamosa, Colorado 81101
(Certified Mail)

/blc

FEDERAL Mtr.E SAFETY AND HEALTH REVIEW-- ~OMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

OCT 12 1984
PITTSBURGH AND MIDWAY
MINING CORPORATION
Contestant

CONTEST PROCEEDING
:

Docket No: WEST 82.-131-R {A)
Citation No: 1016965

v.

:

Edna Mine

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

:

DECISION
Appearances:

John A. Bachman, Esq., The Gulf Corporation,
Law Department, Denver, CO, for Contestant
James H. Barkley, Esq., Office of the
Solicitor, U.S. Department of Labor,
Denver, CO, for Respondent

Before:

Judge Moore

During the course of an inspection of applicant's strip
mine on February 23, 1982, Inspector Horbatko was approached
by a drill operator and informed that a "slump" had occurred.
The drill operator expressed some concern for his own safety.
Inspector Horbatko then went to the area of the spoil
bank that the driller had indicated and observed conditions
that indicated to him that a "slump" had occurred. A "slump"
which was called by several other names during the course
of the hearing, is a movement in the spoil bank which
results in some of the material composing the spoil bank sliding
down the bank towards the bottom of the pit. The word
"slump" is not used to describe a complete spoil bank failure
which would be similar to an avalanche.
A trench at the foot of the spoil bank called a catch
pit is designed to catch any slumping material and keep it
from going into the pit area where the mining is being done.
The inspector testified that a slump does not create a
hazard unless the sliding material is in such a quantity that
it fills the catch basin and then overflows out into the
working area. But the evidence that Inspector Horbatko saw
together with the concern expressed by the drill operator
led him to believe that the slump had overflowed the
catch pit. He considered the slump a hazardous condition
and re-examined the company's books and found no notation
that a slump had occurred.

After some discussion with loading foreman Isenbager,
the inspector issued a citation charging a violation of
30 CPR 77.1713(c). That section provides as follows:
After each examination conducted in accordance
with the provisions of paragraph (a) of this
section, each certified person who qonducted all
or any part of the examination required shall
enter with ink or indelible pencil in a book
approved by the Secretary the date and a report of
the condition of the mine or any area of the mine
which he has inspected together with a report of
the nature and location of any hazardous condition
found to be present at the mine. The book in
which such entries are made shall be kept in an
area at the mine designated by the operator to
minimize the danger of destruction by fire or
other hazard.
Foreman Isenbager testified that the slump had in fact
occurred and that it was of sufficient magnitude to overflow
the catch pit and spill out on. to the floor of the mine.
The slump did not occur on February 22 as Inspector Horbatko
had assumed, but on February 21 after the end of the shift.
He testified that during the winter months, because of the
thawing and the freezing, almost all slumps occur around
5:30 P.M. and after the dragline has advanced one set past
the area in question 1/. Mr. Isenbager noticed the slump on
his pre-shift examination on the morning of February 22 and
had it cleaned up before any other work was done. The slump
could have possibly occurred during the early morning of
February 22, but because of the history of slumps at this
mine during the wintertime, the great probability is that it
occurred on the previous day.
In any event, it occurred
after one shift ended and before the next shift began.
No one would have been in the pit at the time of the slump.
Mr. Isenbager testified that if there had been miners
working in the pit at the time of the slump he would have
recorded it as a hazard because of the possibility of injury
to a miner who might be working near the spoil bank. Inasmuch
as the slump had already occurred during non-working hours
however, he could not see that it was a hazardous condition
that had to be recorded.
1

After a dragline has removed as much overburden as
it can from one location, it is moved to a new location
further down the pit so that it can remove overburden
from the area where it had previously been stationed.
The distance from one location·to another is called
a set.
0 ,4 (J ~l
.:~ '1. tJ u

During the course of the testimony reference was made
to exhibits that had been received in evidence in Dockets
No: WEST 82-131-R and WEST 82-170 which involved the same
parties in the same mine.
(My decision of June 16, 1983 is
reported at 5 FMSHRC 1146). Applicant's exhibit 1, is a top
view of the pit area where the slump occurred. The station
markers - 14 through 20 - are on the highwall side of the
pit, but the slump involved herein was on the spoil bank
across the pit from the area between station 16 and station
17. Applicant's exhibit 2 is a cross-section of a typical
portion of the pit and it shows the catch pit and how a
typical slump would fall into the catch pit.
It is obvious that a slump is not some rare and
unexpected occurrence 2/ They occur often and the catch pit
is designed to contaiil"the material. When material overflows
from the catch pit, a hazard could be created if there were
a miner in the area to be injured. The question I have to
decide however, is whether a condition which was not
hazardous when found and cleaned up must nevertheless be
recorded in the pre-shift examination book. MSHA argues
that it needs such information to assist it in ·reviewing the
ground control plan.
It might well be that MSHA does need
information as to which slumps overflow the catch basin, but
in my opinion the regulation involved in this case does not
require that it be recorded. The requirement is that the
certified person, after making his examination must record
in the book "the nature and location of any hazardous condition
found to be present at the mine" (emphasis added) . I interpret
that to mean that the-condition which must be reported, must
be hazardous at the time it is found.
Unlike a roof fall,
which may create further hazards, a slump removes the instability
in the spoil pile and eliminates the hazard.
In the instant
case the hazard had been eliminated before the pre-shift
examination while no one was in the pit area,
I find that
the regulation in question does not require that a slump
which occurred between shifts be recorded in the examination
book.
The citation is VACATED

acz;:

icIS?;~ ~'

Charles C. Moore, Jr.
Administrative Law Judge

2

The company's hearsay objections are rejected because
not only did Inspector Horbatko corroborate the hearsay
by visual inspection of the site, but Mr. Isenbager
furnished an eye-witness report of the existence of the
report.
") ,.. '~ 'J'.
f..,; ':i u

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S.
Department of Labor, 1961 Stout Street, Denver, CO 80294(Certif ied Mail)
John A. Bachman, Esq., The Gulf Corporation, Law Department,
1720 So. Bellaire Street, Denver, CO 80222 (Certified Mail)

/db

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

22041

CIVIL PENALTY PROCEEDINGS

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

Docket No: LAKE 83-8
A/O No: 11-01845-03507

v.

Zeigler No. 5 Mine

ZEIGLER COAL COMPANY,
Respondent
DECISION
Appearances:

Rafael Alvarez, Esq., Office of the
Solicitor, U.S. Department of Labor,
Chicago, Illinois, for Petitioner
H. Halbert Woods, Esq.,
Zeigler Coal
Company, Des Plaines, Illinois, for
Respondent

Before:

Judge Moore

On the evening of May 17, 1982, Inspector Buelow
entered respondent's mine for the purpose of conducting
a ventilation inspection. He was accompanied by mine
management personnel Leroy Johnson and Dan Kroll until
he got to the dinner .hole just inside the section. From
there on, Sam Meadows the section foreman accompanied the
investigating team. They proceeded down the No. 5 entry
toward the faces and as they proceeded under the last
check curtain (a pull-through curtain) they saw a
continuous miner and a shuttle car operating in a crosscut
to the left of No. 5 entry. There was no line brattice
directing air to the lef thand crosscut and the cutting
blades of the miner were inby the rib of No. 5 entry by
about sixty feet.
The crosscut was bolted for forty feet.
The inspector issued a 104(d) (1) notice with accompanying
findings of significant and substantial as·well as unwarrantable failure.
The.ventilation plan 6alls for a blowing line
curtain to within twentyfive feet of the face and inasmuch
as there is no dispute as to the absence of the curtain,
there is no dispute as to the existence of the violation.
The dispute is as to the violation's designation as significant
and substantial and as an unwarrantable failure.
The general practice in this mine is that the continuous
miner cuts a crosscut by cutting to a depth of twenty feet
and then backs out so that the roof bolter can come in.
The continuous miner then goes to other faces and when it

l

' ) ,"4:1, ·"'
.,._
:tr

comes back to where it started it cuts another twenty feet,
backs out and then again leaves the area so that the roof
bolter can come in.
Inasmuch as the crosscut on the left had
been cut almost sixty feet and then bolted for forty feet,
it was the opinion of the inspector that three different
twenty foot deep cuts had been made without any air being
directed into the crosscut. He blamed the section foreman Sam Meadows for allowing this situation to occur.
He may have made statements to the effect that it was
not entirely Sam Meadows' fault, but it was Sam Meadows'
negligence that he attributed to the coal mine operator,
and it was that negligence that led to the unwarrantable
failure aspect of the. case,. As to the significant and
substantial finding, while his methane reading showed
only 4/lOths of 1%, there was always a chance of hitting
a methane feeder and without the required ventilation the
methane concentration could have become high enough to
cause an explosion if there had been an ignition.
Section foreman Sam Meadows testified that at the
beginning of the shift he gave a standard talk on the
importance of ventilation and of keeping the brattice
curtains in their proper position. He further testified
that the continuous miner wa~ cutting a new crosscut on
the right hand side of the entry, and that before he went
to the dinner hole for his evening meal he directed the
miner operator to square up the new crosscut, a procedure
that would have taken some forty--five minutes. He again
cautioned the operator and helper to keep their ventilation
curtain within twentT-f ive feet of the face as they squared
up. He and a Mr. Crawford, a face man, whose job it was
to see that a line curtain was available, went to the
dinner hole and proceeded to eat. Before they finished
eating, the inspection party showed up at the dinner hole
and Mr. Meadows sent Mr. Crawford back to the face area
with instructions to make sure that the ventilation curtains
were in the proper position.
The rest of the sequence is the same as that related
by Inspector Buelow. When they went through the pullthrough curtain they saw the continuous miner working in
the left hand crosscut with no line curtain directing air
to the face.
Mr. Meadows testified that the operator
of the continuous miner had not followed his instructions
and squared up the notch of the new crosscut being driven
on the right hand side of the entry. He said that the
miner operator had, without any authority, backed out of

the crosscut on the right and started mining the crosscut
on the left. The miner operator and helper were reprimanded
by Mr. Meadows for failing to carry out his instructions
and for mining in the left hand crosscut without authorization
to do so.
From the conversation it appeared that the
miner and helper had deliberately gone into the crosscut,
knowing that the line curtain was not up, because they
made some remarks as to not wanting to do Mr. Crawford's
work while he was sitting in the dinner hole. Mr. Crawford,
the man they were referring. to had gotten. into a conversation
with someone after Mr. Meadows had sent him back to the
face area and he had not reached the continuous miner before
the inspection party got there.
I have no reason to doubt Mr. Meadows' testimony.
If
his instructions had been carried out, the continuous miner
would still have been working in the right hand crosscut
squaring it up when Mr. Meadows returned from the dinner
hole. While the left hand crosscut would have been the next
area to be mined, it had not been mined by any of
Mr. Meadows' shifts and I can not make the assumption
that Mr. Meadows would have sent the continuous miner into
the crosscut without seeing that the appropriate curtains
were hung.
I find no negligence on the part of section foreman
Meadows and I therefore VACATE the unwarrantable finding.
The violation in my opinion was significant and substantial
however.
The mine liberates 500,000 to 600,000 cubic feet
of methane per day and while only a small percentage of
that methane comes from the face areas there is always the
possibility of a methane build-up if proper ventilating
techniques are not used.
In view of these findings and
together with the other criteria which have been the
subject of a stipulation, I consider a $200 penalty to be
appropriate.
The Zeigler Coal Company is accordingly ORDERED to pay
to MSHA, within 30 days, a civil penalty in the amount
of $200.

Charles c. Moore, Jr.
Administrative Law Judge

1l

'')
1 L
,· f.4
.........

_.....

, )

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S.
Department of Labor, 230 So. Dearborn Street, Chicago,
IL 60604 (Certified Mail)

J. Halbert Woods, Esq., Zeigler Coal company, 2700 River
Road, Des Plaines, IL 60018 (Certified Mail)

/db

2441

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

22041

DISCRIMINATION PROCEEDING

HOMER W. DAVIS,
Complainant

Docket No. WEVA 84-118-D

v.

:

HOPE CD 8·4- 2
ARMCO STEEL CORPORATION,
Respondent

No. 8 Mine

DECISION AND ORDER OF DISMISSAL
Before:

Judge Lasher

This proceeding, which was initiated by the filing with
the Federal Mine Safety and Health Review Commission of a complaint of discrimination by Mr. Homer W. Davis on February 1,
1984, arises under section 105(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp.
V 1981), hereinafter "the Act".
By letter dated January 23, 1984, the Complainant had
been notified that his complaint of discrimination (filed December 15, 1983) before the Mine Safety and Health Administration (MSHA) had been investigated and the determination made
that "a violation of section 105(c) had not occurred." Under
the Act, a complaining miner has an independent right to bring
a complaint before this Commission and this pr~ceeding is
based on that right.
On April 17, 1984, the Respondent filed a Motion to Dismiss alleging inter alia that:
1.

The Complaint was not timely filed, i.e. not
filed within 60 days "after the alleged October 31, 1980 discriminatory act of Respondent."

2.

The Complaint fails to state a claim recognizable under the Act.

A preliminary hearing to determine the two issues raised
by the motion to dismiss was held on the record in Charleston,
West Virginia, on June 21, 1984, at which Respondent was represented by counsel and Complainant appeared pro ~·
The reliable and probative evidence of record indicates
that the Complainant was employed by Respondent, Armco Steel
Corporation (ARMCO), from October 18, 1979 (Tr. 38) through
November 15, 1979, on which latter date he voluntarily quit

to take care of "personal business" in California. On or about
October 15, 1979, Respondent had received a "Pre-employment"
Chest X-ray, the results of which were r~ported by J. Dennis
Kugel, M.D. (Exhibit R-1), and the pertinent portion of which
provided as follows:
PA CHEST: The projection is somewhat underexposed.
There appears to be a fine nodular
fibrosis in fairly prominent amount throughout
the lung fields so that if there is a proper
history of exposure an Occupational pneumoconiosis should be considered of a UICC-p 2/3 all six
lung zones. A repeat chest study is suggested
with some increase in penetration. !/
Whether the report of Dr. Kugel indicates occupational
pneumoconiosis depends on Complainant's having an appropriate
history of exposure (Tr. 10, 27). This question which goes to
the merits of the complaint was not resolved in the preliminary
hearing which was limited to the 2 issues raised in the motion
to dismiss.
However, as noted subsequently, a Workmen's Compensation claim filed by Complainant in 1982 was turned down
because he had insufficient exposure.
Sometime in May of 1980, Complainant discussed re-employment with Terry E. Whitt, Respondent's Personnel Relations Representative, and on May 19, 1980, he filed an employment application. He was not rehired. ~/
At unspecified times during the period May 1980 into the
autumn of 1980, conversations took place between Complainant
and MSHA officials in which it appears that Complainant had
discussed with MSHA possible discrimination by Respondent in
not rehiring him (Tr. 20-23).
Al though not clearly articulated·, Complainant 1 s contention
of discrimination appears to be that he was not rehired in the
Spring of 1980 (Tr. 54) because he had pneumoconiosis. He became aware that he had pneumoconiosis on or about October 23,
1/ The face of the X-Ray report shows it was taken on 10-12-79,
and "Received" on 10-15-79. Since it was part of Complainant's
Pre-employment examination, I infer that it is unlikely that
Complainant would have gone on the payroll prior to Respondent's
being aware of it.
'!:_/ At the prehearing conference, Mr. Whitt gave the following
explanation why Complainant was not rehired:
"Basically he was under consideration for hire. ·We had
several other employees, applicants that we had. Mr. Davis
worked for us for approximately three weeks, and I wasn't quite
sure whether or not his family problems were through and did
not know if he was stable or not."
(Tr. 17, 18).

)

,1 A

.·

·-·' · 1. '± lJ

1981 (Tr. 46, 56). Complainant contends that sometime during
the period July 26, 1982 - August 9, 1982, he first became aware that when he went to work for Respondent in 1979 that Respondent had evidence that he had pneumoconiosis (Tr. 57, 58).
On January 27, 1983, Complainant's claim against the West Virginia Workmen's Compensation Fund for pneumoconiosis was turned
down because he had insufficient exposure to the hazards of
"occupational pneumoconiosis" during the pertinent 10-year and
15-year periods.
(Court Exhibit 1). The claim itself was filed
by Complainant on July 26, 1982. In approximately October 1981,
Complainant sought employment with Kanawha Coal Company. He was
rejected on the basis of an X-Ray report dated October 23, 1981,
which indicated pneumoconiosis (Tr. 55). Sometime in 1982, Complainant filed with MSHA a discrimination complaint against
Kanawha Coal Company which Complainant testified was later withdrawn for reasons which were not delineated at the hearing (Tr.
61-68).
The complaint herein was filed on December 15, 1983 (Tr.
4 3) •

There is no question but that the complaint was not timely
filed with the Secretary within the 60-day period prescribed in
section 105 (c) (2) of the Act.
The Commission has held that the purpose of the 60-day
time limit is to avoid stale claims, but that a miner's late
filing may be excused on the basis of "justifiable circumstances,"
Joseph W. Herman v. IMCO Services, 4 FMSHRC 2135 (December 1982).
The Mine Act's legislative history relevant to the 60-day time
limit states:
While this time-limit is necessary to avoid
stale claims being brought, it should not be
construed strictly where the filing of a
complaint is delayed under ·justifiable circumstances. Circumstances which could warrant the extension of the time-limit would
include a case where the miner ~ithin the
60-day period brings the complaint to the
attention of another agency or to his employer, or the miner fails to meet the time
limit because he is misled as to or misunderstands his rights under the Act.
S. Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of
1977, at 624 (1978) (emphasis added). Timeliness questions must be resolved on a case-by-case basis, taking
into account the unique ci~cumstances of each situation.

Here, Respondent's failure to rehire Complainant occurred
in October 1980, but his complaint of discrimination with the
Secretary was not filed until December 15, 1983, more than 3
years beyond the statutory filing deadline. Accepting the
relevant time factors as presented by Complainant, it appears
that at least by the end of 1982, he was aware (1) that he had
pneumoconiosis, (2) that Respondent might have had evidence
when he was first hired and also when he was subsequently refused re-employment that he had pneumoconio·sis (whether or not
"occupational" pneumoconiosis), and (3) of his right to bringand the procedure for bringing-a discrimination complaint under the Act against Respondent (Tr. 22, 23).
The 60-day statutory limitation is not a particularly
long filing period in view of the lack of sophistication of
the average Complainant and the complexity of some of the legal
bases for bringing a discrimination action. On the other hand,
the placement of limitations on the time-periods during which
a plaintiff may institute legal proceedings is primarily designed to assure fairness to the opposing party by preventing
surprises through the revival of claims that have been allowed
to slumber until evidence has been lost, memories have faded,
and witnesses have disappeared.
The theory is that even if one
has a just claim it is unjust not to put the adversary on notice to defend within the peribd of limitation and that the
right to be free of stale claims in time comes to prevail over
the right to prosecute them. Where, as here, the filing delay
is remarkably prolonged, it seems a fair proposition to require a proportionately strong and clear justification therefor.
The lengthy time lapse and sequence of events here mandates the conclusion that Complainant's delay in filing his
complaint 3/ was not justified and that the complaint was not
timely filed. 4/
ORDER
Respondent's motion to dismiss is granted and this proceeding is dismissed.

~ilft ~/2-

Michael A. Lasher, Jr.
Administrative Law Judge

3/

Cf. Walter A. Schulte v. Lizza Industries, Inc., 6 FMSHRC

8 (January 1984) (31-day delay}.
4/ In view of this holding, the question of whether the complaint states a cause of action under the Act is not reached.

244d

Distribution:
Mr. Homer w. Davis, General Delivery, Gordon, WV
fied Mail)

25093 (Certi-

William T. Brotherton III, Esq., Spilman, Thomas, Battle &
Klostermeyer, 1101 Kanawha Banking & Trust Building, Charleston,
WV 25301 (Certified Mail)

yh

214J

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
I. B. ACTON
GRADY ADERHOLT
FREEMAN BUTLER
JAMES L. CAMPBELL
J. D. ELLENBERG
W. D. FRANKLIN
BILLY R. GLOVER
TERRY PEOPLES
WILLIAM REID
CHARLES W. RICKER
TERRY SHUBERT
THEODORE TAYLOR
MARVIN WISE

t'''j ~,..' . ;
-: .~

~

.

DISCRIMINATION PROCEEDINGS

.
.
.
.
.

CHARLES BLACKWELL
ROBERT BURLESON

.

HOUSTON EVANS

KENNETH RANDALL COFER,
Complainants
UNITED MINE WORKERS OF
AMERICA (UMWA),
Intervenor

v.
JIM WALTER RESOURCES, INC.,
Respondent

..
.
.

Docket No. SE
SE
SE
SE
SE
SE
SE
SE
SE
SE
SE
SE
SE
MSHA Case No.
Nebo Mine

84-31-D
84-32-D
84-33-D
84-34-D
84-35-D
84-36-D
84-37-D
84-39-D
84-40-D
84-41-D
84-42-D
84-43-D
84-44-D
BARB CD 83-18

Docket No. SE
MSHA Case No.
Docket No. SE
MSHA Case No.
Docket No. SE
MSHA Case No.
No • 7 Mine

84-45-D
BARB CD 83-27
84-46-D
BARB CD 83-28
84-47-D
BARB CD 83-31

Docket No. SE 84-52-D
MSHA Case No. BARB CD 83"-18
Flat Top Mine

.
.
..

DECISION

2·150

Appearances:

Frederick W. Moncrief, Esq., Office of the Solicitor, u. s. Department of Labor, Arlington, Virginia, for Complainants;
Mary Lu Jordan, Esq., Washington, DC, for Intervenor;
David M. Smith, Esq., Maynard, Cooper, Frierson &
Gale, P.C., Birmingham, Alabama, and Robert W.
Pollard, Esq., Jim Walter Resources, Inc., Birmingham, Alabama, for Respondent.

Before:

Judge Melick

These consolidated cases are before me upon the complaints
of discrimination by the Secretary of Labor on behalf of 17 miners under the provisions of Section 105(c) (2) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act".
The individual complainants, former surface miners who had been
laid off during a reduction in force, allege that Jim Walter Resources, Inc. (Jim Walter) discriminated against them in violation of Section 105(c)(l) of the Actl because they had not
been provided the underground safety training required by section
1

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

115 of the Act.2 The alleged discrimination occurred when
Jim Walter recalled other miners from the panel lists who had
terms of company service shorter than those of Complainants but
who had completed that training. Most of the Complainants also
allege that Jim Walter is obligated to reimburse them for the
time and expense involved in subsequently obtaining the undarground safety training during the time when each was laid off.
Jim Walter does not deny that the Complainants were thus
bypassed for underground positions at least in part because they
had not completed the 32 hour required safety training for underground miners at an MSHA-approved course but maintains that these
decisions were mandated by the terms of the applicable collective
bargaining agreement (the "Agreement") and in particular by the
seniority provisions contained in Article XVII of the Agreement.
Those provisions require as an element of seniority that the miner have the ability to perform the work of the job at the time
the job is awarded.
It is Respondent's position that a miner
requiring the safety training is not able to perform the work of
the job at the time the job is awarded.
The Commission held in Secretary ex rel Bennett, Cox, et al.
v. Emery Mining Corporation, 5 FMSHRC 1391 (1983), that in enacting section 115, Congress did not restrict the prerogative of the
mine operators in setting pre-employment qualifications based on
2

Section 115 states in part:
(a) Each operator of a coal or other mine
shall have a health and safety training program which shall be approved by the Secretary.
• . • Each training program approved by the
Secretary shall provide as a minimum that Cl) new miners having no underground mining experience shall receive no less than 40 hours of
training if they are to work underground.
Cb) Any health and safety training provided
under subsection Ca> shall be provided during
normal working hours. Miners shall be paid
at their normal rate of compensation while
they take such training, and new miners shall
be paid at their starting wage rate when they
take the new miner training.
If such training shall be given at a location other than
the normal place of work, miners shall also
be compensated for the additional costs they
may incur in attending such training sessions.

I

experience or training and that the operator's policy in that
case of requiring applicants for employment to obtain the 32
hours of MSHA-approved training prior to being hired did not violate the Act~
Within this legal framework it is therefore immaterial whether the affected applicants for employment are "strangers" to the
industry and the employer, as in the Emery case, or are former
employees awaiting the possibility of reemployment from a recall
list, as in the instant case.
In either case, pre-employment
training and experience criteria may be used by the mine operator, including the requirement that prospective underground miners have completed their MSHA-approved safety training, without
running afoul of the Act.
It follows then that the mine operator is also free to contract with its employee bargaining unit to require consideration
of such pre-employment training as an element of seniority.
In
neither case is such criteria discriminatory under the Act. Accord UMWA o.b.o. Shepard v. Peabody Mining Co., 4 FMSHRC 1338
(1982); but see UMWA o.b.o. Rowe et.al. v. Peabody Coal Co., 6
FMSHRC 1634 (1984). There is accordingly no need to decide in
this case whether or not requiring such pre-employment training
as an element of seniority violates the provisions of Article
XVII of the collective bargaining agreement.
I note however that
the Respondent's position (that it was obligated under that part
of the Agreement to give priority in its recall decisions to
those paneled miners who then had completed the MSHA approved
safety training because only they had "the ability to step into
and perform the work of the job at the time the job is awarded")
was upheld in Arbitration (Joint Exhibit No. 18).
The second allegation of discrimination before me concerns
Respondent's failure to pay those miners it recalled for underground positions for the expenses of the training the1 received
and for comparable wages during that training period.
The
Emery decision is again controlling.
It is clear from that decision that since the employer has been made responsible under the
Act for the costs of such training, it is unlawful under section
105(c)(l) if, after hiring the Complainants as underground miners, it fails to compensate them for their 32 hours of classroom
training but relies on that training to satisfy its training obligations under section 115. The Commission concluded in the Emery
decision that under section 115Cb) the mine operator was required
to reimburse the Complainants for the cost of their training and
3 Complainants Acton, Aderholt, Burleson, Butler, Campbell,
Franklin, Glover, Peoples, Reid, Ricker, Shubert, Taylor, and
Wise come within this category.

the equivalent of wages at their starting pay rate for the time
spent in training.
Respondent argues that the Emery decision is distinguishable
in two respects.
It first argues that the training required by
the Emery Mining corporation was a mandatory hiring prerequisite
for all applicants whereas in the instant case, new miner training was not an absolute, uniform qualification for hiring or recall by Respondent.
Respondent argues, secondly, that the Emery
case involved job applicants who had no previous opportunity to
obtain new miner training from the operator, whereas, in the instant case, the Complainants' lack of experienced miner status
was due to previous decisions by the miners to move out of underground positions.
The thrust of the Emery decision was, however, that the mine
operator cannot discharge its statutory obligations by obtaining
the benefit of the requisite safety training without reimbursing
the miners for the cost of that training. As the Commission
pointed out, this action circumvented the statutory mandate that
the mine operators must pay for such training and that this interfered with the miners' rights under section 115. Similarly in
the case at bar, Respondent relied on the safety training obtained by the individual miners'to satisfy its statutory obligations to provide training for those miners. Accordingly, Respondent too should compensate the recalled miners for that training.
Emery is not at all distinguishable in this regard.
I agree, however, with Respondent's position that it was not
required to reimburse the underground safety training expenses of
Complainant Cofer who did not return to underground work.
In
keeping with the rationale of the Emery decision that the employer took advantage of unreimbursed training to attempt to comply
with the training requirements of section 115, it is clear that
Respondent is not required to reimburse a miner who returns to
surf ace work where the underground safety training was not required. Respondent did not take advantage of the unreimbursed
training for underground positions in regard to this employee.
Mr. Cofer is accordingly not entitled to any reimbursement for
training which had not been taken advantage of by the Respondent
in fulfilling its statutory obligations.
Timeliness of Filing
As noted, I have found that Respondent did violate section
105(c)(l) when, after recalling certain Complainants to positions
as underground miners, it refused to compensate those miners for
their 32 hours of training but relied on that training to satisfy

-> ·1 S1.

.Cv 'if

its training obligations under section 115. Respondent maintains, however, that ten of the Complainants in this category,
namely, Acto~, Campbell, Franklin, Glover, Peoples, Reid, Ricker,
Shubert, Taylor, and Wise filed their complaints beyond the sixty
day time limit set forth in section 105Cc)(2) of the Act and
therefore those complaints should be barred.
If a miner believes that he has suffered discrimination in
violation of the Act, and wishes to invoke his remedies under the
Act, he is indeed required under section 105(c)(2), to file his
initial discrimination complaint with the Secretary of Labor within sixty days after the alleged violation. A miner's late filing
may be excused however where "justifiable circumstances" exist.
Herman v. Imco Services, 4 FMSHRC 2135 (1982), Hollis v. Consolidation Coal Company, 6 FMSHRC 21 (1984).
In the case at bar, it is apparent that the act of discrimination occurred only after the miners were recalled for underground positions and only after Respondent refused to pay the
training expenses and comparable wages upon demand or upon the
failure of Respondent to pay such expenses and wages after a reasonable period of time following recall, considering the time
needed to perform necessary bookkeeping functions for such payments.
In the latter case, I conclude that a date 30 days from
the date of recall constitutes the discriminatory event.
Within this framework it appears that no more than three
Complainants may have filed untimely, i.e., Mssrs. Peoples, Shubert, and/or Wise. These miners were all recalled by Respondent
on November 14, 1983, and therefore should have been reimbursed
for their training expenses and comparable wages by December 14,
1983. Since Respondent failed to make such payments by December
14, 1983, that date became the date of the discriminatory event.
The miners accordingly should have filed their complaints with
the Secretary within sixty days thereafter,or by February 12,
1984. Since the Secretary filed his complaint with the Commission on February 24, 1984, and incorporated therein a complaint
that the miners had not been reimbursed for their training expenses and comparable wages, it may reasonably be presumed that
the complaints now at issue had been brought to the Secretary's
attention at least two weeks before that date.
Accordingly, I
find that the complaints had been timely filed with the Secretary.
I note in any event that Respondent does not dispute that the issue of nonpayment for training was raised in a timely manner by
other Complainants and Respondent accordingly cannot deny that it
had timely notice of the nature of the claim raised.
Respondent
has, moreover, cited no legal prejudice by any filing delay. Under the circumstances, I find that all of the Complainants met
the filing requirements set forth in section 105(c) (2).

Disposition of Discrimination Proceedings and Damages
A.

Dockets No. SE 84-35-D, SE 84-45-D, SE 84-47-D, and
SE 84-52-D

Inasmuch as Complainants Blackwell, Ellenberg, and Evans
did not attend any training program for underground miners, they
incurred no expenses relating thereto. Consistent with my decision herein, they suffered no discrimination and their cases are
therefore dismissed. For the reasons stated in this decision,
the complaint of Mr. Cofer is also dismissed. Wherefore case
Dockets No. SE 84-35-D, SE 84-45-D, SE 84-47-D, and SE 84-52-D
are hereby dismissed.
B.

Dockets No.
SE 84-34-D,
SE 84-40-D,
SE 84-44-D,

SE 84-31-D, SE 84-32-D, SE 84-33-D,
SE 84-36-D, SE 84-37-D, SE 84-39-D,
SE 84-41-D, SE 84-42-D, SE 84-43-D,
and SE 84-46-D

The complaints of discrimination in the remaining cases before me are denied in part and granted in part in accordance with
my decision herein. To the extent that the complaints are granted, and based upon the uncontested evidence of expenses and relevant wages, I award the following costs and damaages:
Names of Miners
I.B. Acton
Grady Aderholt
R. Burleson
F. Butler
J.L. Campbell
W.D. Franklin
B.R. Glover
T. Peoples
W.C. Reid
C.W. Ricker
T. Shubert
T. Taylor
M. Wise

Training Expenses
$ 84.60
80.80
128.80
18.46
55.00
32.80
25 .12
36.60
21.12
61.12
20.20
35.00
4.92

Comparable Wages
$438.88
404.74
399.94
399.94
438.88
404.74
404.74
399.94
404.74
438.88
399.94
404.74
399.94

Total
$523.48
485.54
528.74
418.40
493.88
437.54
42 9. 86
436.54
425. 86
500.00
420.14
43 9. 7 4
40 4. 86

Interest is to be computed on the above amounts based upon
my finding that those amounts were due on the 30th day following
the recall of each miner and such interest is to be calculated by
Complainant in accordance with the formula set forth in Secretary
of Labor o.b.o. Bailey v. Arkansas-Carbona Company and Michael
Walker, 5 FMSHRC 2042 (1983). Agreement should be reached among
the parties as to such calculations and such calculations must be
submitted to the undersigned along with any petition for attorney

fees within 20 days of the date of this decision. This decision
is not a final disposition of the cases and no final disposition
of these cases will be made until such time as the issues of interest and attorneys' fees, if any, are resolved.
Disposition of Civil Penalty Proceedings
A.

Dockets No. SE 84-35-D, SE 84-45-D, SE 84-47-D, and
SE 84-52-D

Inasmuch as I have found no discrimination in the Complaints
of Mssrs. Blackwell, Cofer, Ellenberg, and Evans, the corresponding civil penalty proceedings are dismissed. Wherefore Civil
Penalty Proceedings in Dockets No. SE 84-45-D, SE 84-52-D, SE
84-35-D, and SE 84-47-D are dismissed.
B.

Dockets No.
SE 84-34-D,
SE 84-40-D,
SE 84-44-D,

SE 84-31-D, SE 84-32-D, SE 84-33-D,
SE 84-36-D, SE 84-37-D, SE 84-39-D,
SE 84-41-D, SE 84-42-D, SE 84-43~0,
and SE 84-46-D

The Secretary's representations in the amended complaint for
civil penalty are not disputed in these cases.
In light of the
clear mandates set forth in the Emery decision (issued August 8,
1983) that new underground miners must be reimbursed for their
statutorily required safety training which is taken advantage of
by the mine operator, I find that Respondent herein should have
promptly paid those training expenses for the Complainants herein
who were recalled for underground work. The failure of Respondent to do so in a timely manner warrants not only repayment of
those expenses and comparable wages plus interest, but also a
civil penalty appropriate to the relevant criteria under section
llO(i) of the Act.
In this regard, I observe that no evidence of prior violations has been presented. The mine operator is large in size.
The mine operator has not paid for the training expenses or comparable wages noted.herein and accordingly has not yet abated the
violations.
In light of the clarity of the Emery decision on
this point, it should have done so.
Accordingly, Jim Walter

2457

Resources will be directed to pay a civil penalty of $50.00 in
each of the cases in this category t the time of final disposition of these proceedings.

aw Judge
Distribution:
Frederick W. Moncrief,
partment of Labor, 4015
(Certified Mail>

q., Office of the Solicitor, U. S. Deilson Boulevard, Arlington, VA 22203

Mary Lu Jordan, Esq., United Mine Workers of America, 900 - 15th
Street, NW, Washington, DC 20005 (Certified Mail)
David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.C.,
1200 Watts Building, Birmingham, AL 35202 (Certified Mail)
Robert W. Pollard, Esq., Jim Walter Resources, Inc., P. 0. Box
C-79, Birmingham, AL 35283 (Certified Mail)
/nw

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

OCT 1 7 198.t
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No: CENT 84-24-M
A/O No: 41-00010-055 03 W24

v.

Capitol Cement Plant

BIGELOW LIPTAK CORPORATION,
Respondent
DECISION
Appearances:

Jack F. Ostrander, Esq., Office of the
Solicitor, U.S. Department of Labor,
Dallas, Texas, for the Petitioner
Laurel D. Breitkopt, for the Respondent

Before:

Judge Moore

Bigelow Liptak Corporation is a construction company
and at the time of the events involved in this case, it was
engaged in the construction of a large vessel for the
Capitol Cement Company. Bigelow Liptak stipulated that it
was covered by and subject to the Federal Mine Safety and
Health Act of 1977.
The company's specific task was to lay the brick and
add gunnite to the inside of the steel vessel. Respondent's
exhibit 2 was a drawing of the vessel but it was neither to
scale nor is it accurate in the measurements shown. */
The tubular vessel with a cone-shaped lower part is used in
the manufacture of cement. At the time of the inspection
involved herein, respondent had already laid the brick, and
had completed the spraying of the gunnite, a stucco-like
cement mixture, and was engaged in cleaning up the gunnite
that had bounced off the walls and fallen into the lower.
part of the conical vessel.
Inspector Lilley said he entered
the vessel through the port depicted on the right hand side
of respondent's exhibit 2 and that he saw workers on two
levels below him. On his level there was at least one
worker and the scaffolding consisted of loose boards laid

*

The court reporter states that the exhibits were mailed with
the transcript.
This office has no record that they were
received.
I am attaching a drawing that is consistent with my
recollection.
If this decision is appealed, the parties
will have to resubmit the exhibits for the Commission.

2 '1.1
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24GO

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

80204

nCT i. - ;- · 1984

TERRY D. DAVIS,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. KEST 83-97-DM
MSHA Case No. MD 82-14

CANYON VALLEY ELECTRIC CO.,
Respondent

Logan Wash

DECISION APPROVING SETTLEMENT
Before:

Judge Carlson

The parties, through counsel, have filed a stipulation and
other documents which would settle all matters at issue in this
discrimination proceeding.
At the center of the settlement is an agreement by the
respondent to pay a sum of money to complainant in return for a
full release of all claims arising out of respondent's employment
and discharge of complainant.
I conclude that the proposed settlement should be approved
in all respects. Accordingly, the settlement is approved.
Respondent shall pay the agreed sum within 30 days of the date of
this decision, with each party to bear its own costs. This
proceeding is dismissed with prejudice.

SO ORDERED.

Administrative Law Judge
Distribution:
Richard A. Brown, Esq., 484-1/2 28 1/2 Road, Grand Junction,
Colorado 81501
(Certified Mail)
Richard T. Casson, Esq., Sharp & Black, 401 Lincoln Avenue, P.O.
Box 774608, Steamboat Springs, Colorado 80477
(Certified Mail)

/blc

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

OCT 17 1984

CIVIL PENALTY PROCEEDING

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

Docket No. PENN 84-20
A.C. No. 36-03425-03543

v.
Maple Creek No. 2 Mine
U.S. STEEL MINING CO., INC.,
Respondent
DECISION
Appearances:

Thomas A. Brown, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., U.S. Steel Mining Co.,
Inc., Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Kennedy

On May 24, 1984, the trial judge entered a tentative
bench decision vacating the S&S finding and rejecting MSHA's
claim that the roof cited in the captioned citation was
inadequately supported (Tr. 121-122). At the same time, the
trial judge cound that because the roof was not bolted to
plan there was a technical violation of the approved roof
control plan. A penalty of $150 was assessed for the
violation found.
In response to an order to show cause why the tentative
decision should not be adopted as the final disposition in
this matter, the operator moved to vacate the tentative
decision.
The ground assigned was that the roof control
plan did not apply to the roof in the area cited and/or that
the area cited was bolted before the effective date of the
requirement for a roof control plan. After the matter came
on for oral argument on MSHA's opposition to vacation of the
bench decision, the parties agreed to settle the matter
provided the trial judge would modify his decision so as to
delete the finding of a technical violation of the roof
control plan and substitute therefor a finding that the
violation was a result of the operator's failure to control
adequately the roof in the area cited.
This in turn would
be predicated on evidence which showed that because the
operator initially chose to install bolts on four-foot
centers the absence of such a bolting pattern established
a failure to adequately control the roof in that area, a
violation of the first sentence of 30 C.F.R. 75.200.

•)11C'?

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Accordingly, it is ORDERED that as so modified the
bench decision be, and hereby is, CONFIRMED AND ADOPTED as
the final decision in this matter.
It is FURTHER ORDERED
that the operator pay the amount of the penalty assessed
and agreed upon, $150, on or befo
Friday, October 26, 1984.

Distribution:
Thomas A. Brown, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market St., Philadelphia, PA 19104
(Certified Mail)
Louise Q. Symons, Esq., U.S. Steel Mining Co., Inc.,
600 Grant St., Rm. 1580, Pittsburgh, PA 15230
(Certified
Mail)

/ejp

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

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

OCTJ.81984

CIVIL PENALTY PROCEEDING
Docket No. PENN 84-175
A.C. No. 36-07556-03501

v.
Faust and Miller Breaker
FAUST AND MILLER COAL COMPANY,:
Respondent
ORDER OF DISMISSAL
Appearances:

Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner;
W. J. Krencewicz, Esq., Shenandoah, Pennsylvania, for Respondent.

Before:

Judge Melick

At hearing, Petitioner requested approval to withdraw
his Petition for Civil Penalty in the captioned case for the
reason that there is insufficient evidence to support the
citation and order therein.
Under t
circumstances, permission to withdraw is granted.
29
R § 2700.11. The case
is therefore dismissed.

'w Judge
Distribution:
Mark v. Swirsky, Esq.,
the Solicitor, U.S. Department of Labor, 144 0 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
W.J. Krencewicz, Esq., 24 West Centre Street, Shenandoah, PA
17976 (Certified Mail)

nw

24-61-

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

LOCAL UNION 1609, DISTRICT 2,
UNITED MINE WORKERS OF
AMERICA (UMWA) ,
Complainant

v.

22041

OCT 181984

COMPENSATION PROCEEDINGS
Docket No. PENN 84-158-C
Order No. 2254681; 2/16/84
Docket No. PENN 84-159-C
59 Orders of Withdrawal

GREENWICH COLLIERIES,
DIVISION OF PENNSYLVANIA
MINES CORPORATION,
Respondent

Greenwich Collieries No. 1

SUMMARY DECISIONS
Before:

Judge Koutras
Statement of the Case

These consolidated proceedings concern two complaints
filed by the complainants against the respondent pursuant to
section 111 of the Federal Mine Safety and Health Act of 1977,
seeking compensation for miners at the respondent's Greenwich
Collieries No; 1 Mine. The cases are before me for a ruling
on the respondent's Motions for Summary Decision, filed pursuant
to Commission Rule 64, 29 C.F.R. § 2700.64. Complainant's have
filed oppositions to the motions, and based on the pleadings
filed by the parties, the facts which prompted the complaint
follow below.
On February 16, 1984, at approximately 5:00 a.m., an
explosion occurred at the Greenwich No. 1 Mine. Subsequently,
that same day, at 7:00 a.m., an MSHA inspector issued
Order No. 2254355, pursuant to section 103(j) of the Act
(Exhibit 1 attached to respondent 1 s Motion for Summary Decision).
This Order was subsequently modified by another MSHA inspector
from a 103(j) to a 103(k) Order at 2:00 p.m., that same day
(Exhibit 2 attached to respondent's motion). This order
applied to the entire mine, and prohibited anyone from entering
the mine other than federal and state inspectors, UMWA
representatives, and company officials. The 103 order thus
idled all miners scheduled to work at the mine, and on its
face, states as follows:

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A methane ignition and/or explosion has occurred
at approximately 5:00 a.m. in and around the
active D-5 (037) working section. Three miners
who were working in the D-3 section are not
accounted for.
The following persons are permitted
to enter or remain in the mine for the purpose
of rescue operations. State and MSHA officials,
company officials, and UMWA personnel who are
necessary to conduct the rescue operations.
At 10:15 a.m., on February 16, 1984, the same inspector
who issued the modified section 103(k) order issued Withdrawal
Order No. 2254681, pursuant to section 107(a) of the Act~
This order applied to the entire mine, and the condition or
practice shown on the face of the order states as follows:
An underground mine explosion has occurred in
this mine.
This Order is issued to assure the
safety of any persons in the mine until an
examination is made to determine if the entire
mine is safe.
The section 107(a) order required the withdrawal of all
miners from the mine except those referred to in section 104(a).
On March 20, 1984, the mine was still idled, and MSHA
commenced a "Safety and Health (Saturation) (AAB) Inspection"
of the entire mine on that day. As a result of that inspection,
MSHA inspectors issued 59 withdrawal orders pursuant to
section 104(d) (1) of the Act.
At the time of the filing of both complaints, the
complainant indicated that it was incapable of listing every
coal miner affected by the section 107(a) order or the 59 orders,
or the exact dollar amount claimed under section 111 of the
Act, but that a prompt effort would be made to obtain this
information through the available discovery procedures.
Arguments Presented bt the Parties
In its complaint filed in Docket No. PENN 84-158-C, the
complainant states that it "anticipates that the final results
of MSHA's inspections and investigation will reveal that
the conditions which led to the issuance of the imminent
danger order of February 16, 1984, were caused by the operator's
failure to comply with mandatory safety standards." Complainant
seeks compensation under section 111 of the Act for each of
the miners idled as a result of this order, up to one week's
compensation at his or her regular rate of pay.
Complainant
also seeks interest at 20% per annum, and reimbursement for
attorney fees in connection with the claimed compensation.

2:1G6

In its answer to the complaint, the respondent denies
that the conditions which led to the issuance of the irruninent
danger order of February 16, 1984, were caused by the operator's
failure to comply with mandatory safety standards. Respondent
also denies that the idled miners are entitled to the claimed
compensation, and asserts that the complainant has no right
to obtain reimbursement for attorney's fees.
In support of its summary decision motion, the respondent
asserts that its exhibits demonstrate that the miners who
seek a week's compensation were idled by the section 103(j)
order, and therefore cannot rely on this order in seeking a
week's compensation because the relevant provision in section 111
of the Act makes that remedy available only when miners are
idled by certain orders issued pursuant to sections 104 and 107,
and not pursuant to section 103.
Although recognizing that MSHA subsequently issued a
section 107(a) order, the respondent maintains that this
order cannot trigger a week's compensation because it had no
idling effect. Respondent points out that by the time MSHA
issued the 107(a) order, the miners had already been idled
by the 103(j) order, which had closed the entire mine.
Respondent concludes that the 107(a) order closed no additional
areas or operations and therefore had no effect on the work
status of the miners.
Respondent maintains that the pleadings also demonstrate
that the second condition found in section 111 of the Act
for obtaining one week's compensation has not been satisfied
in that the 107(a) order on which the complainant relies
does not charge the respondent with "a failure of the operator
to comply with any mandatory health or safety standards," nor
does the order even hint at any such violation. Respondent
also points out that the 103(j) and 103(k) orders likewise
show no hint of any violations.
Respondent cites a c~se
interpreting section 111 and its predecessor, section 110
of the Federal Coal Mine Health and Safety Act, which it claims
held that whether miners are entitled to a week's compensation
must be determined by the text of the order. E.g., UMWA, Local 1993
v. Consolidation Coal Co., 8 IBMA 1 (1977) (compensation'must
be determined "under terms of the closure order as issued").
In support of its opposition to the summary decision
motion, the complainant maintains that the fact that the MSHA
inspector did not allege a violation of a particular health
or safety standard at the time he issued the section 107(a)
order should not, in this case, preclude the miners from
obtaining a week's compensation under section 111. Complainant
argues that the inspector's main concern in issuing an irruninent

danger order is to insure the protection of the miners by
requiring their immediate removal, or, where miners are
already withdrawn, to insure that they do not reenter the
mine until the imminent danger has subsided.
In the event
of an explosion or accident, MSHA's typical response is to
issue immediate orders giving themselves the ability to
protect lives, avoid the destruction of evidence and, where
necessary, supervise the rescue and recovery efforts.
In many
such cases, asserts the complainant, the conditions that
existed at the time of the explosion, and which may have
contributed to it, will not be determined until after an
investigation. Although orders are issued, and miners are
idled at the time the explosion occurs, citations relating
to the explosion are not issued until months later.
Complainant asserts that on many occasions, the inspectors
will be able to readily determine that a violation of a
mandatory health or safety standard caused the imminent danger,
and will presumably cite the violation on the face of the
order.
In other situations like the instant proceeding, it
may be difficult, if not impossible, for MSHA to determine
the existence of violations at the time the order is issued.
Complainant concludes that this should not deprive the miners
of the compensation to which they would otherwise be entitled.
Complainant points to the fact that section 107(a)
explicitly provides that the issuance of an imminent danger
order does not preclude a subsequent citation under section 104
for the violations which precipitated the imminently dangerous
condition. Complainant argues that in enacting section 107(a),
Congress expressed its awareness that the causes of an
explosion or other emergency conditions requiring the immediate
withdrawal of miners from the mine might not become apparent
until well after the closure order is issued. Complainant
concludes that if a subsequent section 104 citation issued
pursuant to section 107(a) does describe violations which
caused the imminently dangerous condition, then the elements
of section 111 have been satisfied and compensation should be
awarded.
Complainant argues that since the explosion was the
condition which prompted the issuance of the imminent danger
order upon which the compensation claims are based, the miners
should not be penalized because that explosion which prompted
the issuance of the order also prevented MSHA from immediately
determining which violations may have caused or contributed
to the explosion. Complainant maintains that to deny miners
compensation on this basis would serve to reward those operators
who have allowed the most dangerous conditions to develop in
their mines.

Complainant argues further that allowing a mine operator
to escape liability under section 111 on the basis of the
respondent's-narrow and technical interpretation, would be
contrary to the mandate of Congress that the Act be construed
liberally to further its primary purpose, the protection of
miners. Citing the legislative history of the Act, complainant
asserts that the Congressional drafters of section 111 viewed
it as "a remedial provision which also furnishes added
incentive for the operator to comply with the law." Complainant
concludes that requiring the respondent to pay up to one
week's compensation in this case best comports with the
Congressional intent behind section 111.
In response to the respondent's arguments that the miners
had already been idled by the section 103(k) order by the time
the inspector issued the section 107(a) order, complainant
asser~s that it is well-settled that miners are considered
idled, for purposes of section 111, by the issuance of a
section 107(a) order, regardless of the fact that they may
have been previously withdrawn from the mine, and regardless
of whether the prior removal resulted from a vol~ntary action
on the part of the operator or whether it resulted from the
issuance of an earlier withdrawal order. UMWA District 31 v.
Clinchfield Coal Co., 1 MSHC 1668 (1978); UMWA Local 2244,
District 5 v. Consolidation Coal Co., 1 MSHC 1674 (1978);
Roscoe Page v. Valley Camp Coal Co., 1 MSHC 1394 (1976);
and Peabody Coal Co. v. Mineworkers, 1 MSHC 2220 (1979).
Finally, complainant argues that on the facts of the
instant case, the condition that caused the idling of the miners
was the explosion. Since the explosion is the same condition
that led to the issuance of the section 107(a) imminent danger
order, complainant concludes that it provides a nexus sufficient
to justify compensation under section 111, and that if the
violations had been issued simultaneously with the section
107(a) order, the idled miners would have been entitled to up
to one week's compensation. Complainant concludes further
that allowing an operator to escape liability in those situations
where the violations leading to the order are detected after
the order's issuance, removes a powerful incentive to comply
with the law. Such.an approach, maintains complainant, serves
to reward those operators who, by their failure to comply
with the law, create the most extreme forms of an imminently
dangerous situation: an explosion leading to a shutdown
of the entire mine.
In Docket No. PENN 84-159-C, the complainant asserts
that the violations which led to the issuance of the 59 orders
were independent and separate from any violations which may
have contributed "to the events which closed the mine on
February 16, 1984." Complainant also asserts that but for
these violations, the mine would have reopened upon abatement
of the violations, and that as a result of these violations
the reopening of the mine was delayed by several weeks.

2469

The respondent denies that any alleged violations which
prompted the orders existed, and it asserts that it has filed
Notice of Contests "over a majority of those orders," and
that the contests are Still pending.
The complainant maintains that in accordance with section 111
of the Act, each of the miners idled as a result of the 59
withdrawal orders issued during the inspection of the mine
initiated on March 20, 1984, is entitled to up to one week's
compensation at his or her regular rate of pay, such
compensation being apart from and in addition to any
compensation received under section 111, for the withdrawal
order issued on February 16, 1984, pursuant to section 107(a)
of the Act.
The complainant also asserts that each miner
idled by the orders is entitled to interest on the amount
of compensation claimed at the rate of 20% per annum, and
to reimbursement for the attorney's fees incurred in obtaining
said compensation.
In support of its Motion for Summary Decision, the
respondent asserts that section 111 of the Act makes it clear
that the compensation sought by the complainant is available
only if (1) the withdrawal order that idles the miners is
issued under section 104 (30 U.S.C. § 814) or section 107
(30 U.S.C. § 817), and (2) the order is issued "for a failure
of the operator to comply with any mandatory health or safety
standards."
The respondent maintains that the pleadings and its
exhibits demonstrate that the miners who seek a week's
compensation were idled by the section 103 order issued on
February 16, 1984, and that none of the 59 withdrawal orders
issued between March 20 and April 16, 1984, had any idling
effect due to the existence of the February 16, 1984, section
103(k) order.
Respondent argues that the complainant cannot
rely on this section 103 order in seeking a week's compensation
because the relevant provision in section 111 of the Act
makes that remedy available only when miners are idled by
certain orders issued pursuant to sections 104 and 107, and not
pursuant to section 103, as was the case here.
The respondent asserts further that the pleadings also
demonstrate that the second condition found in section 111
for obtaining one week's compensation has not been satisfied
in that the respondent has denied that violations existed
which led to the issuance of the orders.
Since it has contested
a majority of the orders through the filing of Notices of
Contests, which are still pending, the respondent concludes
that the validity of the orders has not been finally determined
and that the prerequisite for the award of one week's pay
under section 111 has not been met.

In its opposition to the summary decision motion,
complainant again reiterates that for purposes of section 111,
miners are considered idled regardless of the fact that
they may have been previously withdrawn from the mine.
Complainant cites the same cases previously cited in opposition
to the motion filed in Docket No. PENN 84-158-C, in support
of its arguments, including the previously cited legislative
history references.
Complainant again reiterates that the explosion triggered
the idling of the miners on February 16, 1984, and that but
for the conditions which led to the issuance of the 59 - withdrawal orders, the mine would have reopened in March 1984.
Quoting from the Commission's decision in Mine Workers,
District 17 v. Eastern Associated Coal Co., 2 MSHC 1296,
1298-1299 (1981), complainant asserts that because "withdrawal
situations can arise involving .
. complicated sequences
of events or concurrent operations of causative factors," the
nexus between a withdrawal order and the miners' idlement
should be examined on a case-by-case basis.
In support of
this argument, complainant cites the following language from
this case:
[W]here a work stoppage due to safety concerns
precedes an order and is occasioned by the
same exigent or emergency conditions leading
to the order, compensation may be justified to
effectuate those safety purposes.
Id. at 1299.
Finally, complainant states that it is curious that the
respondent should argue that because it denies having
committed any of the violations which may have precipitated
the issuance of the imminent danger order, summary decision
should be awarded in its favor.
Complainant's view is that
this assertion by the respondent raises genuine issues of
material fact, which, under the summary decision provisions
of 29 C.F.R. § 2700.64(b) (1), precludes the granting of the motion.
Discussion
The first three sentences of § 111 of the Act provides
in pertinent part as follows:
[l] If a coal or other mine or area
of such mine is closed by an order issued
under section 103, section 104, or section
107, all miners working during the shift
when such order was issued who are idled
by such order shall be entitled, regardless
of the result of any review of such order,
to full compensation by the operator at
their regular rates of pay for the period

24 ~? l

they are idled, but for not more than the
balance of such shift.
[2] If such order
is.not terminated prior to the next working
shift, all miners on that shift who are idled
by such order shall be entitled to full
compensation by the operator at their regular
rates of pay for the period they are idled,
but for not more than four hours of such
shift.
[3] If a coal or other mine or area
of such mine is closed by an order issued under
section 104 or section 107 of this title for
a failure of the operator to comply with any
mandatory health or safety standards, all miners
who are idled due to such order shall be fully
compensated after all interested parties are
given an opportunity for a public hearing,
which shall be expedited in such cases, and
after such order is final, by the operator for
lost time at their regular rates of pay for such
time as the miners are idled by such closing, or
for one week, whichever is the lesser.
Section 103(j) provides:
In the event,of any accident occurring in
any coal or other mine, the operator shall
notify the Secretary thereof and shall take
appropriate measures to prevent the destruction
of any evidence which would assist in investigating
the cause or causes thereof.
In the event of
any accident occurring in a coal or other mine,
where rescue and recovery work is necessary, the
Secretary or an authorized representative of
the Secretary shall take whatever action he
deems appropriate to protect the life of any
person, and he may, if he deems it appropriate,
supervise and direct the rescue and recovery
activities in such mine.
Section 103(k) states:
In the event of any accident occurring in a
coal or other mine, an authorized representative
of the Secretary, when present, may issue such
orders as he deems appropriate to insure the
safety of any person in the coal or other mine,
and the operator of such mine shall obtain the
approval of such representative, in consultation
with appropriate State representatives, when
feasible, of any plan to recover any person in
such mine or to recover the coal or other mine
or return affected areas of such mine to normal.

Section 107(a) provides:
If, upon any inspection or investigation
of a coal or other mine which is subject to
this Act, an authorized representative of the
Secretary finds that an imminent danger exists,
such representative shall determine the extent
of the area of such mine throughout which the
danger exists, and issue an order requiring
the operator of such mine to cause all persons,
except those referred to in section 104(c), to
be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the Secretary determines that
such imminent danger and the conditions or
practices which caused such imminent danger no
longer exist. The issuance of an order under this
subsection shall not preclude the issuance of a
citation under section 104 or the proposing of
a penalty under section 110.
The facts presented in the instant proceedings are
similar to those presented in Local Union 1889, District 17,
UMWA v. Westmoreland Coal Company, WEVA 81-256-D, summarily
decided by Judge Steffey on April 28, 1982, 4 FMSHRC 773
(April 1982). An explosion occurred inside Westmoreland's
mine early on the morning of November 7, 1980. When it became
aware of this explosion, the company withdrew the miners
working on the 12:01 a.m. to 8:00 a.m. shift. At 7:30 a.m.,
an MSHA inspector issued a§ 103(j) withdrawal order. One
half hour later, at 8:00 a.m., an inspector issued a§ 107(a)
imminent danger withdrawal order which stated:
All evidence indicates that an ignition of
unknown sources has occurred and five
employees cannot be accounted for.
On December 10, 1980, after rescue operations had been
completed, both orders were modified to show that the area
of the mine affected by the orders was limited to sealed portions
of the mine, and the orders remained in effect. The miners
who were withdrawn from the mine 'during the 12:01 a.m. to
8:00 a.m. shift on November 7, were paid their entire shift,
and miners who were expected to work the November 7 day shift
(8:00 a.m. to 4:00 p.m.), were paid four hours of compensation
under section 111.
Following its investigation into the explosio~ MSHA
issued thirteen§ 104(d) (2) orders to Westmoreland on July 15,
1982, and they were based on statements taken during the

,,, ')
2 :1 I tJ
~

investigation. Westmoreland contested all thirteen orders,
and they were subsequently consolidated with several civil
penalty prqposals filed by MSHA, and assigned to Judge Steffey
for adjudication. On May 4, 1983, Judge Steffey vacated
all 13 orders on the ground that they were erroneously
issued, but left intact the alleged violations for consideration
on the merits in the civil penalty cases. Thereafter,
on motion by the parties, Judge Steffey approved a settlement
disposition of the. cases on May 11, 1984, 6 FMSHRC 1267.
In its complaint filed with Judge Steffey, the Union
alleged that the "imminent danger" that existed on November 7,
and which led to the issuance of the two order&was caused
by Westmoreland's failure to comply with mandatory safety
and health standards. Thus, under the third sentence of
§ 111, the Union claimed that each miner was entitled to
up to one week's compensation based on the imminent danger
order. The Union subsequently filed an amended complaint
seeking limited compensation for both the§ 103(j) and § 107(a)
orders under the first two sentences of § 111, and repeated
its original claim for a week's compensation under the third
sentence of § 111.
Judge Steffey ruled that the miners were entitled to
compensation for the remainder of the shift on which the
§ 103(j) order was issued and for four hours of the next
working shift. He denied the Union's request for one week's
compensation based on the § 107(a) order because the order
did not allege a violation of a mandatory health or safety
standard. He also d~nied the Union's request to retain
jurisdiction of the case until MSHA had completed its
investigation of the explosion. The Union had apparently
believed that upon completion of its investigation, MSHA
would then terminate the § 107(a) order either with or without
modifying it to allege a violation of a mandatory health or
safety standard.
On appeal, the Commission let stand Judge Steffey's
rulings concerning the Union's claims to compensation
concerning the§ 103(j) order, but vacated his order dismissing
the Union's claim for a week's compensation and remanded
the case with instructions to hold the record open as to
this claim. 'In its remand decision, the Commission stated
as follows at 5 FMSHRC 1413, August 12, 1983:
We express no view about whether these
thirteen 104(d) (2) orders or any later
modification of the 107(a) Order may
provide the basis for a week's compensation

i (_
2 /1..,~···1

under the third sentence of section 111.
We also do not reach the legal arguments
raised by Westmoreland concerning
whether the imminent· danger order. as
issued must contain an allegation of a
violation for purposes of section 111
compensation. All of these questions
on the merits of the Union's claim are
appropriate for resolution in the first
instance by the judge.

*
*
*
*** The case is remanded to the judge
with instructions to hold the record open
as to the Union's claim for a week's compensation. The parties are free to submit
any appropriate motions or showings.
If
the Union fails to make appropriate showings
upon the completion of MSHA's investigation,
Westmoreland may file an application for a
show cause order to determine if the claim
should be dismissed. The judge's resolutions
of the Union's other claims are final, since
no review was taken as to those aspects of
his decision.
Following the Commission's remand, Judge Steffey issued
a second summary decision on September 24, 1984. He denied
the Union's claim for up to one week of compensation for
the§ 107(a) order on the ground that the miners were initially
idled and withdrawn from the mine by the§ 103(j) order and
not by the§ 107(a) order. Judge Steffey observed that the
Union could not and did not establish that any miners were
withdrawn or idled by a § 107(a) order, and at page 11 of
his slip decision stated as follows:
Assuming that UMWA could show that miners
were withdrawn by the § 107(a) order, MSHA
has terminated the 107(a) order without modifying
it in any way to reflect that the imminent
danger occurred because of Westmoreland's failure
to comply with any mandatory health and safety
standards. Although MSHA's investigation resulted
in the issuance of 13 withdrawal o~ders pursuant
to § 104(d) of the Act, citing alleged violations
of the mandatory health and safety standards,
those orders cannot be said to allege violations

as part of an imminent-danger order because
they could not have been issued in the first
instance without a finding that the violations
cited in the orders did not cause an imminent
danger.
Findings and Conclusions
PENN 84-159-C
The facts here show that on February 16, 1984, after
the explosion had occurred, the mine was shut down and the
miners were idled by the issuance of the § 103(j) order
which later that same day was modified to a§ 103(k) order.
Thus, the effect of these two initial orders was to idle
all miners scheduled to work at the mine. Later that
same day, a§ 107(a) imminent danger order was issued,
and it was obviously intended to maintain the status quo
and to prohibit anyone from entering the mine until it
could be examined to determine whether it was safe. The
mine remained idle until April 17, 1984, when according to
the complainant, general work and limited production of coal
resumed.
During the interim, from the date of the explosion
until it was reopened, MSHA had control of the mine and
was conducting an investigation of the explosion, as well
as a mine inspection which began on or about March 20, 1984.
During the course of that inspection, MSHA issued 59
§ 104(d) (1), withdrawal orders, and the record reflects
that they were all issued during the period March 20 to 27,
1984.
Complainant asserts that the violations which led to
the issuance of the 59 withdrawal orders "were independent
and separate from any violations which may have contributed
to the events which closed the mine on February 16, 1984,"
and that but for the conditions that led to the issuance
of the 59 orders, the mine would have reopened in March.
Complainant concludes that since these 59 orders closed the
mine for several more weeks, the idled miners are entitled
to compensation under § 111.
After careful review of all of the arguments presented
by the parties in support of their respective positions, I
concl~de and find that for purposes of compensation due
under § 111 of the Act, the miners in question were idled
by the issuance of the § 103 and § 107 orders on
February 16, 1984. The 59 § 104(d) orders were issued over
a month later, and at that time the mine was still closed,
and the miners were still idled by the previously issued

• • .4 ...... e
r.::.,•.t
(u

orders.
I take note of the fact that some of the orders
affected on_ly equipment, one cited an unsanitary toilet,
and all of them indicated that "no area" of the mine was
affected.
This notation is obviously due to the fact that
the mine had already been idled by the § 103 and § 107 orders.
Even if I were to accept the complainant's assertion that
the mine would have reopened had the 59 orders not issued,
compensation for one week's pay still would not lie because
the previously issued § 103 orders idled the mine, and it
stayed in that posture until it reopened. Section 111
simply does not provide compensation for one week's pay
for orders issued pursuant to § 103. The third sentence
of § 111 makes it clear that the compensation sought is
only provided in the event of closure orders pursuant to
§ 104 and § 107 for failure to comply with any mandatory
health or safety standards. Here, the mine had been idled
by § 103 orders for at least thirty days before the § 104
orders issued. The question of compensation rights pursuant
to the§ 107(a) order is the subject of Docket PENN 84-158-C,
and my findings and conclusions follow below.
In view of the foregoing findings and conclusions, I
conclude and find that the miners are not entitled to one
week's compensation because of the issuance of the 59 § 104(d)
orders, and the complainant's arguments in this regard ARE
REJECTED.
Respondent's Motion for Summary Decision IS GRANTED.
PENN 84-158-C
In this case, the complainant maintains that the miners
were idled by the explosion which occurred on February 16,
1984, and that the § 107(a) order was issued because of that
explosi9n.
Recognizing the fact that the inspector did not
cite any violations of mandatory safety or healtn_ standards
when he issued the § 107(a) order, the complainant nonetheless
argues that this should not preclude the miners from receiving
a week's compensation. For the reasons which follow, the
complainant's arguments ARE REJECTED.
The third sentence of § 111 of the Act makes it clear
that miners cannot be awarded one week's pay for the issuance
of a§ 107(a) order unless that order was issued for a
violation of a mandatory standard.
In short, the condition
precedent for the awarding of a week's compensation in these
circumstances is that the mine is idled by the issuance of
a § 107(a) order which cites a violation. On the facts
of this case, neither condition is present. At the time the
§ 107(a) order was issued, the mine had already been idled
by the § 103 order, and the order, on its face, cited no
violations of any mandatory standards.

q

1I {

1::..'

·"j•-j

While I agree with the complainant's assertion that
the legislative history of the Act recognizes that § 111
was viewed as a remedial provision which also furnishes
added incen~ive for compliance by a mine operator, complainant
would have me ignore the plain wording of the statute, or
in the alternative, rewrite it. This I decline to do.
Further, I take note of the fact that the legislative history
of § 111 indicates that it is not intended to be a punitive
provision.
Congress obviously intended limited compensation
for miners idled pursuant to the types of orders covered
by this section of the Act, and I find nothing in the legislative
history to suppqrt any notion that Congress intended a mine
operator to generally guarantee salary compensation for mines
which may be idled due to no fault of the miner.
In view of the foregoing, I conclude and find that the
miners are not entitled to a week's compensation because of
the issuance of the§ 107(a) order. Accordingly, the
respondent's Motion for Summary Decision IS GRANTED.
Additional Rulings
1. The complainant's suggestion that these dockets are
not ripe for summary decision because the 59 withdrawal orders
have as yet to be litigated IS REJECTED. The parties are
in agreement as to the essential facts in these dockets, and
I conclude that respondent is entitled to relief as a matter
of law. Further, the facts here show that the mine was
reopened on April 16, 1984, and production resumed.
The complainant's assertion that the "conditions" which led
to the issuance of the§ 107(a) imminent danger order on
February 16, 1984, were caused by the respondent's failure
to comply with mandatory standards is simply not so. The
§ 107(a) order was obviously issued as yet another means·by
MSHA to insure its control over the scene of the explosion
and to maintain the status quo.
2.

Complainant's claims for attorney's fees ARE DENIED.

. I /-c:-.L~~·--;:

/(;~

A. Koutras
Administrative Law Judge

'

Distribution:
Joseph T. Kosek, Jr., Esq., Greenwich Collieries,
Division of Pennsylvania Mines Corp., P.O. Box 367,
Ebensburg, PA 15931 (Certified Mail)
Joyce A. Hanula, Legal Assistant, Earl R. Pfeffer, Esq.,
United Mine Workers of America, 900 15th St., N.W.,
Washington, DC 20005 (Certified Mail)

/slk

•·H9.

')A
,.._
'i I ·

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

LONNIE JONES,

0CT 18 1984

DISCRIMINATION PROCEEDING
Complainant

v.
D & R CONTRACTORS,
Respondent

.

Docket No. KENT 83-257-DCA)
BARB CD 83-19

DECISION
Appearances:

Jeffrey A. Armstrong, Esq., Appalachian Research
and Defense Fund of Kentucky, Inc., Barboursville,
Kentucky, for Complainant;
Larry E. Conley, Esq., Williamsburg, Kentucky, and
Ron Perkins, Siler, Kentucky, for Respondent.

Before:

Judge Melick

By decision dated May 15, 1984, it was held that the Complainant, Lonnie Jones, was discharged by D & R Contractors in
violation of section 105(c)(l) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801, et seg., the "Act". 6
FMSHRC 1312. Hearings were thereafter held on the issues of
costs, damages, and attorneys' fees.
This decision is limited to
resolution of those issues.
Back Pay
Lonnie Jones was unlawfully remov.ed or discharged from D & R
Contractors on April 25, 1983. Whether or not that unlawful removal of Mr. Jones from the partnership caused a dissolution and
termination of the partnership at that time is not material for
purposes of liability. Even had· the partnership terminated, the
immediate resumption of coal mining by the remaining partners and
work force in the same mine, using the same equipment under the
same working conditions and methods of production and under the
same business name creates a presumption of successorship with
its attendant liability. Munsey v. Smitty Baker Coal Co., Inc.,
et. al., 2 FMSHRC 3463 (1980) citing EEOC v. McMillan Bleodel
Containers, Inc., 503 F.2d 1094 (6th Cir. 1974).
It is not disputed that this business entity continued mining operations in
this manner through May 21, 1983, and that had the Complainant
not been discharged, he would have earned $1,613.50 for this period.

2430

Thereafter, on July 11, 1983, a new partnership agreement
was executed, creating another business entity named D & R Contractors with three of the original nine partners (Ron Perkins,
Ronnie Siler·, and Tony Lambdin). A third partnership, D & R Contractors, commenced business on August 29,.1983, and included the
same three original partners.
In Munsey v. Smitty Baker Coal Co., Inc., et al., supra,
the Commission applied the criteria set forth in EEOC v. McMillan
Bloedel Containers, Inc., supra, in resolving the question of
successorship. Those criteria are as follows:
Cl) whether the
successor company had notice of the charge, (2) the ability of
the predecessor to provide relief, (3) whether there has been a
substantial continuity of business operations, (4) whether the
new employer uses the same plan, (5) whether he uses the same or
substantially the same work force, (6) whether he uses the same
or substantially the same supervisory personnel, (7) whether the
same jobs exist under substantially the same working conditions,
(8) whether he uses the same machinery, equipment, and methods of
production, and (9) whether he produces the same product.
The undisputed evidence shows that the purported managing
partner and a partner common to all three partnerships, Ron Perkins, has had notice of discrimination proceedings brought by the
Complainant Lonnie Jones as early as May 1983 when Jones filed
his first complaint with the Federal Mine Safety and Health Administration.
Subsequently, Mr. Jones moved to join D & R Contractors in these proceedings before this Commission on August 2,
1983. Since the law of Kentucky charges each partner with the
knowledge of any one of its partners regarding partnership affairs, it is apparent that the "partners" in the successor partnerships, D & R Contractors, had knowledge through Ron Perkins of
the continuing litigation concerning Lonnie Jones. See Kentucky
Revised Statutes, section 362.205.
The evidence also shows that Jones woµld have continued working for the successor partnerships had he not been unlawfully
discharged and the evidence shows that the successor partnerships
did continue in business. Accordingly, full relief would not be
available to the Complainant without the joinder of the successor
partnerships.
I also observe that the subsequent partnerships
continued mining operations under the same name in another mine
owned by Mingo Coal Company with three of the original partners.
The undisputed evidence also shows that the subsequent partnerships continued to produce coal using machinery leased, as before, from the Mingo Coal Company •

!

·1n1

...!
.-.;;
. 0

Within this framework I conclude that, indeed, the subsequent partnerships were successor business entities and therefore
were also liable for damages sustained by Mr. Jones in connection
with his unlawful discharge on April 25, 1983. Munsey, supra.
Accordingly, the successor partnerships are liable for the pay
Mr. Jones could have earned working for these successor entities.
It is not disputed that for the relevant peri9d, July 11, 1983,
through September 17, 1983, Jones would have earned $3,059.00.
Jones earned $180 during this period in other work and this is
deductible from the back pay award. The undisputed calculation
of interest due on the back pay award through September 30, 1984,
is $540.05.
Expenses
The parties have stipulated that Mr. Jones expended $90 in
witness fees.
The evidence further shows that Jones traveled 430
miles in connection with the preparation of the case and attendance at hearings. Applying the applicable mileage rate of 20.5~
per mile, he is entitled to $88.15 in mileage fees. ·No interest
has been requested on these expenses.
Attorney Fees
Respondent does not dispute the reasonableness of the attorney fees sought by counsel for Mr. Jones, but contends that fees
attributable to the period before the joinder of D & R Contractors in these proceedings are not chargeable to D & R Contractors.
To the extent that counsel for Mr. Jones did in fact cause delay
in these proceedings by his failure to have joined D & R Contractors in the initial complaint, there is some merit to the contention.
I observe, however, that the ti~e involved for the preparation of trial in this case would not have differed significantly
whether or not D & R Contractors had been joined initially. Under the circumstances, I have made a downward adjustment of 6
hours in the fee application attributable 6nly to the time reasonably spent in matters specifically related to the late joinder of
D & R Contractors.
Accordingly, I find that counsel devoted 105 hours to the
proceedings in this case. Utilizing the uncontested proposed
rate of $65 per hour, I conclude that counsel for Mr. Jones is to
be awarded $6,825 in attorneys fees.
No further adjustments are
warranted. Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980).

··~ c n ')
r..:.
'l () (.....

ORDER
D & R Contractors and Ron Perkins are hereby ordered, jointly and severally, to pay to Lonnie Jones within 10 days of the
date of this decision the amount of $5,032.55 in back earnings
and interest and the amount of $178.15 in expenses. D & R Contractors and Ron Perkins are further ordered,_jointly and severally, to pay within 10 days of the date of this decision the amount
of $6,825.00 in attorney fees to Jef rey Armstrong, Esq.

(..J
Gary Meli
Assistant
Distribution:
Jeffrey A. Armstrong, Esq., Appalachian Research and Defense Fund
of Kentucky, Inc., P.O. Box 919, Barboursville, KY 40906
(Certified Mail}
Larry E. Conley, Esq., P.O. Box 577, 102 South Third Street, Williamsburg, KY 40769
(Certified Mail}
Ron Perkins, D & R Contractors, P.O. Box 54, Siler, KY
(Certified Mail}
/nw

2483

40763

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

OCT 1. 9 1984
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 84-17-M
A.C. No. 16-00188-05503

v.
Louisiana Cement Company
New Orleans Plant

LONE STAR INDUSTRIES, INC.,
Respondent
DECISION
Before:

Judge Kennedy

This matter is before the trial judge on the parties'
waiver ofa testimonial hearing and stipulation to submit the
case for decision on the written record. Based on a
consideration of that record I find:
1.

The parties have agreed to vacation of
Citations 2236382, 2236390 and 2236392.

2.

That the penalties appropriate for the
guarding violations set forth in Citations
2236387 and 2236391 are $20 each.

3.

That the violation charged in Citation
2237386--failure to provide hand rails
on an elevated walkway did, in fact, occur;
was significant and substantial, and the
result of ordinary negligence, but was
mitigated by the fact that employees wore
safety belts. Accordingly, I conclude
the penalty warranted is $100.

4.

That Citation 2236389 should be modified
to show the violation, which did, in fact,
occur; was an unguarded pinchpoint that was
the result of ordinary negligence. Further
that it was a serious violation that
significantly and substantially contributed
to the hazard of a disabling injury. For
these reasons, I conclude the penalty warranted
and that deemed necessary to deter future
violations and insure voluntary compliance
is $150.

5.

That based on an independent evaluation
and de novo review of the circumstances
the settlement proposed for Citation 2236388
in the amount of $119 should be approved.

The premises considered, I find the amount of the
penalties warranted and hereby assessed total $409 of which
$259 has previously been paid. Accordingly, it is ORDERED
that the operator pay the balance of the penalties due, $150,
on or before Friday, November 2, 1
, and that subject to
payment the captioned matter be,
hereby is, DISMISSED.

Joseph B. Kennedy
Administrative Law
Distribution:
Jack F. Ostrander, Esq., Office of the Solicitor, U.S. Department of Labor, 555 Griffin Sqµare Bldg.,_ Dallas, TX 75202
(Certified Mail)
Mr. Joseph Mule, .Personnel Manager, -Lone Star.· Industries, Inc.,
149ao Intracoastal Drive, New Orleans, LA 70129
(Certified Mail)

/ejp

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ON BEHALF OF
DAVID J. McCONNELL,
Complainant
UNITED MINE WORKERS OF
AMERICA (UMWA) ,
Intervenor

OCT 2 ·'- 1384

DISCRIMINATION PROCEEDINGS

Docket No. SE 84-38-D
BARB CD-83-18
Nebo Mine

v.
JIM WALTER RESOURCES, INC.,
Respondent
ORDER OF DISMISSAL
Appearances:

Frederick W. Moncrief, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington, Virginia, for Complainant;
Mary Lu Jordan, Esq., United Mine Workers of
America, Washington, D.C., for Intervenor;
David M. Smith, Esq. , Maynard, Cooper, Frierson & Gale, P.C., Birmingham, Alabama, and
Robert W. Pollard, Esq., Jim Walter Resources,
Inc., Birmingham, Alabama, for Respondent.

Before:

Judge Melick

At hearing the Secretary requested approval to withdraw
the complaint in the captioned case.
Documentation and representations subsequently filed show that Mr. McConnell
never filed a complaint of discrimination with the Secretary
and that the complaint now before thi. Commission was inadvertently filed.
Under the circumsta ces, permission to
withdraw the complaint is granted.
2 C.F.R. § 2700.11.
The case is therefore dismissed.

Gary
Assistant

Law Judge

Distribution:

w.

Frederick
Moncrief, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203
(Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900
Fifteenth Street, N.W., Washington, DC 20005
(Certified
Mail)
David M. Smith, Esq., Maynard, Cooper, Frierson & Gale,
P.C., 1200 Watts Building, Birmingham, AL 35202 (Certified
Mail)
Robert W. Pollard, Esq., Jim Walter Resources, Inc., P.O.
Box C-79, Birmingham, AL 35283 (Certified Mail)

/nw

248'7

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

OCT 2 5 1984

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 83-212
A.C. No. 15-10339-03516

v.

Pyro No. 11 Mine

PYRO MINING COMPANY,
Respondent
DECISION
Appearances:

Carole M. Fernandez, Esq., Office of the
Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner;
Steven P. Roby, Esq., Pyro Mining Company,
Providence, Kentucky, for Respondent

Before:

Judqe Fauver

The Secretary seeks civil penalties for four alleged
violations of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801, et seq.
The charges were issued in connection with the
investigation of a fatal accident. Dean H. Lundy, a general
laborer, was electrocuted while disconnecting a conveyor
belt control line.
A hearing was held in Lexington, Kentucky. Having
considered the testimony, and the record as a whole, I
find that a preponderance of the re-liable, probative, and
substantial evidence establishes the following:
FINDINGS OF FACT
1. On the date of the accident, September 27, 1982,
Lundy was assigned by mine foreman Barry Teaque to work
with the belt crew. The crew, under lead belt mechanic and
crew leader Harlan Belt, were extending a conveyor belt.
2. Extending the belt required, among other things,
disconnecting a splice on a 110-volt pilot line for the belt
control switch, splicing new line to the old line, and
advancing the switch to the new location.

3. Contrary to a company rule against working on an
energized line and a mandatory federal safety standard
forbidding it, it was common practice for employees to
disconnect,· splice, and re-connect a live pilot line a
number of times each week when the belt was being advanced.
In addition, nonqualified employees were permitted to do
this work on pilot lines. As a general practice, nonqualified
employees would do this work on pilot lines (disconnecting,
splicing, and re-connecting) 2 or 3 times a week. The crew
leader, who himself was nonqualified, testified that he also
worked on energized pilot lines, that he had seen others do
so, and that this was allowed by mine foreman Barry Teaque
so long as only 110 volts were involved.
4. On each belt, the pilot line was extended about
once a week. About a third of the time, the power was left
on when the line was being extended. As a general practice,
the power was cut off during an extending operation only
when the power center was being moved; that is, when the
power center was not being moved during a belt advance, the
pilot line was disconnected, extended, and respliced without
cutting off the power.

5. On September 27, 1982, crew leader Harlan Belt told
his immediate supervisor, Barry Teaque, that one crew member
was absent, and requested a replacement.
Teaque assigned
Dean H. Lundy, a general laborer, to work on Harlan Belt's
crew that shift. Lundy, age 24, had 2 years 3 months mining
experience.
6. Shortly before the electrocution of Lundy, he was on
one side of the tailpiece of the belt, the crew leader,
Harlan Belt, was on one side, and the belt mechanic,
Eddie Puckett, was near and in clear hearing of both of
them.
I find Puckett's testimony credible as to what was
said by Lundy and Belt at that time, and the following part
of his testimony is incorporated herein as factual and
accurate (Tr. 191-193):

Q

Tell me what was happening right then,
who was doing what, and where, and what
conversation transpired between Harlan
and Dean Lundy.

Q

Okay. Like I say, I had stripped outer
layer of the dead end wire off.

2489

Q

Which end of the pilot was that?

A

That was _the end next to the tail piece.
It hadn't never been hooked into the
whole wire yet because I, prior to that,
I had hollered up there and made sure
Torruny Gatton or one of them--.I hollered
and made sure none of them had tied it
in, made sure it wasn't hot. And Tommy
Gatton told me, no.
I stripped the wire
back and started to pull tail piece.
Steve Lone hollered down. Harlan said,
"Let's wait on Eddie," and I told him
then, I said, "Ya'll go ahead and when
you pull it, I'll drop what I'm doing
and help set the jacks on the tail piece,"
because when you pull the tension out on
that belt, you need to get the jacks set as
quick as you can because the scoop won't
just sitting there and holding all the time.
So Steve pulled the tail piece out, and
I drofped the wire on the ground.
I went
over and helped them set the jacks, me and
Harlan. Well, Harlan was on one side of the
tail piece and Lundy was on the other~
I
was pretty much in between the two. And
-Harlan told me to go get the feeder, and the
mechanics was working on the feeder that
night. Feeders was around 60 feet or better
from where he was at then. And that's when
Harlan--that's when Lundy had walked over
there where I was stripping the insulation
off the wire, and the three conductors, three
there I had never stripped nothing off of
them. And that's what Dean Lundy was doing,
and that's when I heard Harlan told him not
to fool with that, not to ·be fooling with the
pilot wire because he might kick the belt on,
and those guys was up there knocking clamps
and might hurt one of them.
And Dean Lundy told him, he said, "No,"
he said, "What I'm doing," he said, "that end
up t.l::ere is not hooked in yet." He said, "I'm
getting this end here ready, and I'll go up

2480

there and get the other end of it ready, and
I'll make sure the clamps and everything is
knocked off, and clear and all we have to do
is take the box off and move it down here and
hook it up." And then that's when I went off
and got to go get the feeder, and they was
putting the front bumper on the feeder.
And I asked them how--the mechanics--how
long they was going to be, and they said
probably five minutes. And no longer than
after I said that, I heard Harlan scream for
me, and told me to come up there. And I
went up there, and that's when I seen Lundy
laying down on the ground.

7.
When Lundy screamed, Belt ran over to him. He
found Lundy unconscious. He could see that Lundy-had touched
a bare wire in the pilot line. He assumed that a minor
shock had frightened him and that he had hit his head on a
top roller. When they (others arrived) turned Lundy over,
Belt saw that Lundy's hand was burned, and he then realized
that Lundy had probably been shocked with much more power
than 110 volts. He told the rest of the crew, "Nobody touch
this pilot line until it gets checked out. We got to get
somebody down here so I know what's going on" .(Tr. 167).
8.
Lundy was breathing, but gasping for breath. Belt
said, "He's all right. He's breathing. What we need to do
is get him out of here. Somebody go get the golf cart so we
can get him on and get him outside"
(Tr. 167). Belt then
went to the phone and called outside to tell them what had
happened and to have a vehicle meet the cart at the end of
the track.
9.
There was room for only two people on the cart.
Belt told Puckett to take Lundy out of the mine. The cart
left and Belt called outside again, to make sure the vehicle on
the outside was on its way to meet the cart.
10.
Several men met the cart at the end of the track.
Lundy had stopped breathing and they administered CPR. The
mine foreman, Teaque, arrived and assisted in the CPR as
they took Lundy to a helicopter, which took him to a hospital.
Lundy did not regain consciousness. He died of the electric
shock.

2491

11. After seeing Lundy's burned hand, and suspecting
that Lundy had been shocked by more than 110 volts, Belt
went to the chief maintenance foreman for the third shift,
Lowell Duk~s, and told him he thought the pilot line h~d
more than 110 volts, and asked him whether there was any way
he· could check the voltage on the line. Dukes said he could
do that.
12. Dukes checked the pilot line and told Belt
the pilot line had only 110 volts. With that, Belt resumed
work on the belt move, so the next shift could mine coal.
13. After the accident, the belt move was completed by
Belt's crew. When he had it hooked up and ran the belt,
he got word from the surface to come out of the mine, because
Lundy was dead.
14. MSHA's chief electrical investigator of the accident,
Jewell Larmouth, arrived at the mine within three hours after
the accident. The work of extending the belt and pilot line
had been completed. He suspected, as Belt had, that more
than 110 volts had been involved in the electrocution. He
first inspected the 480 volt power center that supplied
power to the entire belt system. The power was on; there
was no evidence that the circuit had been deenergized; the
cable coupler had not been removed and there was no lock-out
device or tag available. Larmouth questioned those present to
see if anyone had tags and no one did. He proceeded to check
for a malfunction in the transformer and control circuit.
Someone indicated that a check of the pilot line conductors
had revealed only 110 volts; but Larmouth made a more thorough
examination, testing from wire to earth and to the belt
framework and discovered that the transformer was defective.
A contact between the primary and secondary windings in the
-transformer resulted in 330 volts tb ground in one of the pilot
·wires and 230 to ground in the other pilot current-carrying
wire.
15. Larmouth immediately issued an imminent danger
order forbidding use of the short-circuited transformer. The
transformer. had remained in service after the accident until
Larmouth informed the operator that it was an imminent danger.
16.
The operator sent the defective transformer to
Minesafe Electronics, Inc., for an opinion as to the cause of
the defect. The opinion stated that the failure resulted
from inadequate insulation between the primary and secondary
windings and one of two other conditions:
"(l) a large voltage

2482

transient pierced the varnish shorting primary and secondary,
effecting shorted turns, which in time generated sufficient
heat to destroy the insulation . . • or (2) sustained overload
condition causing overheating weakened the insulation to the
point that the area of weakest insulation broke down under
normal operating voltages, thus welding primary to secondary."
17. Misuse of a cable could cause an overload of the
transformer, but there was no evidence of misuse of a cable.
18.
During his inspection on September 27, 1982, Inspector
Larmouth discovered that the automatic circuit breakers for
the No. 16 AWG (American Wire Gauge) No. 2 conveyor belt control
line were 20 amperes and were so stamped; the No. 16 gauge
cable was also clearly stamped as to size.
Twenty amperes
exceeded the correct amperage for this No. 16 standard wire.
19.
The remote control pilot line extended· from the
conveyor belt starter for approximately 480 feet to the existing
start-stop switch. The remote line was type S 0 neoprene No.
16-3 AWGi the ground wire was continuous from the conveyor belt
starter metal frame to the start-up switch metal frame.
The
purpose of the control line was to start or stop the No. 2 unit
conveyor belt remotely when necessary. The remote control line
involved in the accident was supplied power from a Westinghouse
.500 KVA, 480 volt to 110 volt single-phase control transformer
located in the conveyor belt starting enclosure.
20.
Tests conducted during the investigation revealed
that a primary to secondary winding fault had occurred in the
control transformer.
Resistance readings were approximately
2 ohms from primary to secondary windings of the control
circuit transformer. Voltage readings were:
XI to ground
330 volts, X3 to ground 230 volts. As a result of the fault
in the transformer the white insulated conductor of the remote
control line became energized at 330 volts to ground.
21.
The last weekly examination (as required by 30
C.F.R. § 75.512) prior to the accident was conducted by Bill
Gatton on September 22, 1982, and no defects were recorded.
22.
No one deenergized the remote control line before
Lundy started to disconnect the switch. Lunqy was not wearing
gloves, and he was not wearing insulated (shock hazard boots)
footwear.
The accident area was very wet with some surface
water.
Lundy contacted the white conductor, which was energized
at 330 volts to ground as a result of the primary to secondary
fault in the control transformer.

23. Lundy was not qualified to do electrical work as
required by 30 C.F.R. § 75.153 and was not working under the
direct supervision of a qualified person. The scoop type
tractor operator (Steve Long) was the qualified person on
the conveyor belt move crew; however, he was not performing
or supervising electrical work at the time of the accident.
24. Respondent is a substantial sized mine operator,
producing about 3,500 tons of coal daily and employing about
270 underground miners.
25.
Respondent's compliance history from April 7,
1981, until the inspection in this case shows 128 violations
for which civil penalties totaling $6,894 were paid.
DISCUSSION WITH FURTHER FINDINGS
As a result of his investigation, Inspector Larmouth
charged Respondent with four violations of mandatory safety
standards.
Citation No. 2075231
This citation charges a violation of 30 C.F.R.
which provides:

§

75.509,

All power circuits and electric equipment shall
be deenergized before work is done on such circuits and equipment, except when necessary for
trouble shooting or testing.
The citation alleges that the pilot line was not deenergized
before work was done on it and a fatality occurred.
Even though Respondent published' general instructions
against working on energized lines, it was a common practice
for work to be done on the belt pilot line while it was
still energized.
This was a common practice which management
knew or should have known and should have prevented by
better training and supervision of its line supervisors and
miners. Lundy's immediate supervisor, Harlan Belt, acknowledged
that the pilot line was frequently re-connected without
deenergizing it, and that Belt's immediate supervisor,
Teaque, allowed this practice.
Belt and others assumed that
the pilot line would always conduct only 110 volts and that
this amount of power would not be hazardous to touch. This
attitude reflects a patent disregard of a mandatory safety
standard (§ 75.509). It also shows gross error in judgment,
since 110 volts, depending on conditions such as wetness, body
resistance, clothing, duration of contact, etc., can inflict
serious injury, even death. Crew Leader Belt's attitude is imputable

to management. His failure to have the pilot line deenergized
for the belt move was gross negligence, which is imputed to
management.
The exchange between Harlan Belt and Lundy is not a
defense to this charge. When Belt told Lundy "not to fool
with" the pilot line, Belt was not concerned with the fact
that Lundy might" receive an electric shock. Belt was simply
concerned about the possibility that touching the pilot line
at that time might accidentally start the belt and injure
the men who were removing clamps from the belt. Belt did
not tell Lundy he should not touch the energized pilot
line. When Lundy replied, as follows, Belt did not forbid
him to do any work on the pilot line:
[Testimony of Puckett] :
He [Lundy] said, "I'm getting this end here
ready, and I'll make sure the clamps and
everything is knocked off and clear and all
we have to do is take the box off and move
[Tr. 192).
it down here and hook it up.
I find that Respondent, through gross negligence, violated
75.509 by failing to see that the pilot line was deenergized
before work was done on it. This violation was a major causal
factor in the death of Lundy. Belt did not know that the pilot
line conductor wires would conduct 330 volts or 220 volts,
respectively, instead of 110 volts, because of an unknown
short-circuit in the transformer. But the risk he permitted of
even a 110-volt electric shock was ~ most serious violation; a
shock of that amount could cause serious injury, even death,
depending on conditions.
§

Gross negligence and severe gravity". as to this violation
are well established by the probative, relevant, and substantial
evidence.
In considering the six statutory criteria for
assessing a civil penalty, I find that a penalty of $7,000 is
appropri~te for this violation.
Citation No. 2075232
This citation charges a violation of 30 C.F.R. § 75.511,
because (1) an unqualified person was permitted to perform
electrical work on an ·energized conveyor belt control line
and (2) a disconnecting device for the 480 volt A.C. cable
coupler was not provided and a method of tagging was not
used.

Section 75.511, 30 C.F.R., provides:
No electrical work shall be performed
on low, medium, or high-voltage distribution circuits or equipment~
except by a qualified person or by a
person trained to perform electrical
work and to maintain electrical equipment under the direct supervision of
a qualified person. Disconnecting
devices shall be locked out and
suitably tagged by the persons who
perform such work, except that in
cases where locking out is not
possible, such devices shall be
opened and suitably tagged by such
persons. Locks or tags shall be
removed only by the persons who
installed them or, if such persons
are unavailable, by persons authorized
by the operator or pis agent.
Dean Lundy was not a qualified person under 30 C.F.R.
75.511-1 and 30 C.F.R. 75.153. At the time of the accident,
Steve Long had not required the system to be locked out and
there is no indication of any electrical supervision at that
time.
I conclude that "direct supervision" within the meaning
of the regulations would require that the circuit be deenergized
and examined by a qualified person and the unqualified person's
work be examined prior to reenergizing the circuit. Neither
of these things was done in this case.
I find that Lundy's supervisor, Harlan Belt, permitted
Lundy to attempt the splice change•by failing to order him
specifically not to work on the pilot line after Lundy told
Belt the following:
•.. I'll go up there and get the
other end of it ready, and I'll make
sure the clamps and everything is knocked
off, and clear and all we have to
do is take the box off and move
it down here and hook it up.
Considering management's lax safety attitude toward
working on the energized pilot line and permitting nonqualified

persons to work on the pilot line, I find that Lundy's
attempt to disconnect the pilot line was permitted by Harlan
Belt's attitude and conduct. Harlan Belt did not specifically
and effectively order Lundy not to do any work on the pilot
line and he did not follow up by seeing that Lundy did not
do so. Belt's actions in not exercising proper supervision
over the belt move and Lundy's performance constituted gross
negligence in allowing a nonqualif ied employee to work on an
electrical circuit. This was a violation of § 75.511.
Also, Belt did not attempt to have the pilot line deenergized
before working on it. The pilot line was not locked out at
the power center or disconnected and tagged before work was
done on it. This condition was also a violation of § 75.511
due to gross negligence. The violations of § 75.511 had a
direct causal relationship with Lundy's death.
In considering the six statutory criteria for assessing
a civil penalty, I find a penalty of $5,000 is appropriate
for Respondent's violation of § 75.511.
Citation No. 2075233
This citation charges a violation of 30 C.F.R. § 75.518,
because the automatic circuit breakers in use were of too
high a capacity (20 amperes) to provide adequate short
circuit and overload protection for the No. 16 American Wire
Gauge (AWG) No. 2 conveyor belt control line.
Section 75.518 provides:
Automatic circuit-breaking devices
or fuses of the correct type and
capacity shall be installed so as
to protect all electric equipment
and circuits against short circuit
and overloads. Three-phase motors
on all electric equipment shall be
provided with overload protection
that will deenergize all three phases in the event that any phase is
overloaded.

The condition alleged was discovered during Inspector
Larmouth's examination of the control circuit just after
the accident. Although there was no direct relationship
between this violation and the fatality, it was a serious
electrical violation, concerning an integral part of the
circuit involved in the fatality and in and of itself a
danger to human life. Short circuit and overload protection
is an 'important safety standard to prevent f·ires, electric
shock, explosions, etc., in connection with electrical
equipment and circuits.
The operator's negligence is high as to this violation
because the violation was clearly visible and should have
been apparent to qualified electrical personnel.
Inspector Larmouth relied upon the National Electric
Code table, pursuant to 30 C.F.R. § 75.518-1, which provides:
(a]
device to provide either short
circuit protection or protection
against overload which does not
conform to the provisions of the
National Electric Code, 1968, does
not meet the requirement of § 74.518.
The operator at hearing called attention to a private
publication, the Electrical Protection Handbook, assertedly
based on the 1980 National Electric Code, to support the use of
20 amper~ fuse~ for the circuit in question. However, as
Larmouth pointed out, the publication refers to fuses, not
circuit breakers. Further, the handbook is not relevant as a
mitigating factor because there was no showing of reliance
by the operator. Nor was it shown that the operator actually.
relied on the diagram by Long Aldrex Manufacturing Company
for belt starting boxes, also presented by the operator at
hearinq.
Reliance on this diagram would not have been
justified in any event since the diagram did not accuractely
reflect the size of the wire in: use •.
In considering the six statutory criteria for assessing
a civil penalty, I find a penalt7·of $200 to be appropriate
for this violation.

0 ··±
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,.,,.

Citation No. 2075924
On November 19, 1982, MSHA Inspector Jewell Larmouth
issued a section 104(a) citation, No. 2075924, for violation
of 30 C.F.R. § 75.1725(a) because of the hazardous condition
of the control circuit transformer. A previously issued
107(a) Order of Withdrawal, No. 2075234, was the basis for
issuance of this citation.
Section 75.1725(a) provides:
Mobile and stationary machinery and
equipment shall be maintained in
safe operating condition and
machinery or equipment in unsafe
condition shall be removed from
service inunediately.
The stepdown transformer referred to in the citation was
supposed to have a primary voltage of 480 volts and a secondary
voltage of 110 volts: however, Larmouth's investigation disclosed
that on one conductor of the remote control line, at the scene
of the accident, there was 330 volts, and on the other conductor
of that line there was 230 volts. This increased voltage
resulted from a fault in the transformer which created a
connection between the primary and secondary windings.
Because of this condition, (1) the pilot line conductors
carried 330 volts and 230 volts, respectively, instead of 110
volts, and (2) touching either conductor could create an
electric shock whereas under normal conditions the pilot line
conductors could shock a person only if both conductors were
touched. This condition made the pilot line a deathtrap for
the unwary. The transformer was thus an inuninent danger, as
the inspector found in ordering it out of service after the
accident.
Respondent was not negligent before the accident,
because the transformer short-circuit was not known or reasonably
forseeable, and because this condition would not be detected
by ordinary electrical tests required by the regulations.
However, after the accident, a reasonably prudent operator
would have suspected that there was a malfunction of the
transformer. Harlan Belt did in fact suspect that there
was a malfunction.
The operator was guilty of gross negligence
in failing to take inunediate and appropriate action after the
accident to detect the hazard in the transformer and to remove
the transformer from service until proper repair or replacement

was made. An imminent danger existed at the time, yet work
was allowed to continue. The electrical equipment which
was in an unsafe condition should have been removed from
service iminediately.
~espondent's attitude and conduct, through its
supervisors, in resuming operations with the defective
transformer after the accident shows gross negligence.
This violation is of a most serious nature. In applying
the six statutory ·criteria for assessing a civil penalty,
I -find that a penalty of $5,000 is appropriate for this
violation.

Proposed findings of fact and conclusions of law
inconsistent with the above are hereby rejected.
CONCLUSIONS OF LAW
1. The Judge has jurisdication over the subject matter
of this proceeding.
2. Respondent violated the safety standards as charged
in the four citations involved herein and is assessed the
civil penalties stated above.
ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay the
above assessed civil penalties, in the total amount of
$17,200.00, within 30 days from the date of this Decision.

LJJ.t ~ ~a/ f/L

William Fauver
Administrative Law Judge

Distribution:
Carole M. Fernandez, Esq., U.S. Department of Labor, Office
of the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Steve Robey, Esq., The Traders Building, 608 East Main Street,
Providence, KY 42450 (Certified Mail)

q;-,;n

.C:.d1...,1..

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

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

80204

CIVIL PENALTY PROCEEDING
Docket No. WEST 82-150
A.C. No. 05-00281-03066 V

v.
Roadside Mine
POWDERHORN COAL COMPANY,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Randy Bishop, Safety Director, Powderhorn Coal
Company, Grand Junction, Colorado, pro se.

Before:

Judge Carlson

When this civil penalty proceeding was called for hearing
at Grand Junction, Colorado, on September 26, 1984, the parties
announced upon the record that they had reached a settlement.
Counsel for the petitioner moved that the penalty be
reduced from the $750.00 originally proposed to $600.00.
Respondent, in turn, moved to withdraw its notice of contest.
Based upon my review of the file and information placed
upon the record at the hearing, I am satisfied that the settlement terms are appropriate and should be approved.
Accordingly, the motions made at trial are granted.
Respondent's notice of contest is withdrawn; the citation is
affirmed; and respondent shall pay a civil penalty of $600.00
within 30 days of the date of this decision.
SO ORDERED.

John A. Carlson
Administrative Law Judge

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
Colorado 80294 (Certified Mail)
Mr. Randy Bishop, Director of Safety, Powderhorn Coal Company,
P.O. Box 1430, Palisade, Colorado 81526 (Certified Mail).

/ot

2502

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

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

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.

,

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1084
~ , , •.·..

. '

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 82-215-M
A.C. No. 05-03585-05501
Docket No. WEST 83-53-M
A.C. No. 05-03585-05504

v.
SILVER VENTURES CORPORATION,
Respondent

Comstock-Lake Mine

DECISION
Appearances: Margaret Miller, Esq., and James H. Barkley, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Petitioner;
Mr. Alfred G. Hoyl, Silver Ventures Corporation,
Rollinsville, Colorado, pro se.
Before:

Judge Carlson

This consolidated case, heard under the provisions of the
Federal Mine Safety and Health Act of 1977 (the "Act"), arose out
of inspections conducted on June 2, 1982 and September 22, 1982
at respondent's underground precious metals mine near Idaho
Springs, Colorado. As a result of these inspections, the
Secretary issued five citations alleging violations of various
mandatory safety standards promulgated under the Act.
REVIEW AND DISCUSSION
OF THE EVIDENCE
General Background.
In 1982, respondent Silver Ventures was engaged in the
opening of a gold and silver mine. Shaft driving was in
progress, and surface installations were not yet completed.
June and September inspections with which this decision is
concerned took place against that background.

The

Citation No. 573968, Docket No. WEST 82-215-M
During Inspector Richard W. Coon's June 2, 1982 inspection
of respondent's mine he examined three wires extending from a
switch box in the air building, a surface structure where the

':) 11.,~·) ·u·· ..,
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ventilating fan and compressor are located. According to the
inspector, the three wires extended from the bottom of the box to
about six inches from the floor in what he described as a walkway
along an interior wall of the building. The wires had been cut,
and insulating material had been stripped from the ends of each.
The wire thus made bare, he testified, had been wrapped with a
single layer of plastic electrical tape. After determining that
the wires were energized with 440 volts, the inspector issued a
citation ~/ charging a violation of the mandatory safety
standard published at 30 C.F.R. § 57.12-30. That standard
provides:
When a potentially dangerous condition is found
it shall be corrected before equipment or wiring
is energized ..
The inspector believed that the wires represented a
"dangerous condition" because the tape wrapping did not provide
sufficient insulation. This, coupled with the high voltages involved and the accessibility of the wires to miners, offered a
likelihood of a fatal injury.
Mr. Hoyl, respondent's president, testified that the ends of
the wires were covered with "two to three" wraps of plastic tape,
rather than one as the inspector contended. Moreover, the area
in which the wires hung was not in the walkway, he testified;
access to equipment in the building could be better achieved by
another route. Finally, he suggested that the inspector knew
that the wires had been placed there only temporarily to allow
use of a welding machine during installation of the air house
equipment.
The evidence convinces me that the violation occurred. The
wrappings of plastic tape were clearly insufficient. In so
finding I rely not only upon the inspector's testimony, but also
upon the photographs of the wraps (petitioner's exhibit 2).
Whether the wires were wrapped one, two, or three times with
tape, the wraps provided much less insulation than the thick
factory coating shown in the photograph.
It is simply not
reasonable to believe that a couple of thicknesses of plastic
tape will render a 440 volt conductor safe. ~/

ll

The inspector also issued a withdrawal order under section
107(a) of the Act. The propriety of the withdrawal order is not
at issue in this proceeding.

2/ The inspector's testimony that the tape manufacturer, in
response to an inquiry, recommended at least six wraps is accorded little weight because of its hearsay character.

The other matters raised by the respondent do not relate to
the question of violation, but to the appropriateness of the
proposed $36·.00 penalty. Assuming that the wires did not extend
into a frequently used walkway, it is nevertheless plain that
they were in an area where anyone could walk. The concededly
temporary purpose of the wiring goes to the potential duration of
the violation, not its existence.
The inspector classified this wiring violation as
"significant and substantial" under section 104(d) of the Act.
In Cement Division, National Gypsum Company, 3 FMSHRC 822 (1981),
the Commission defined such a violation as one where" ... there
exists a reasonable likelihood that the hazard contributed to
will result in an in~ury or illness of a reasonably serious
nature."
The record in the present case shows that the insufficiently
insulated wiring, located as it was, created a realistic
possibility that an unwary miner could receive a serious or fatal
electrical shock. The violation was significant and substantial.
Citation No. 573969, Docket No. WEST 82-215-M
In his inspection of respondent's dry house or change room
on June 2, 1982, Inspector Coon found what he cited as another
electrical violation. According to his testimony, wiring
extending from a switch box on an interior wall of the room
lacked the protection of an insulated fitting or bushing around
the "knockout plug" through which the wiring exited the metal box.
This, in the inspector's view, violated the standard published at
30 C.F.R. § 57.12-8. As pertinent here, that standard provides:
Power wires and cables shall be insulated adequately
where they pass into or out of electrical compartments.
*** when insulated wires, other than cables, pass
through metal frames, the holes shall be substantially
bushed with insulated bushings.
The inspector indicated that bushings are necessary to avoid
abrasion of the insulation surrounding the electrical wires.
By way of defense, the respondent, in the person of Mr.
Hoyl, maintained that the wiring in question was a temporary
installation furnishing power to a welding machine. He also
insisted that the wiring emerged from the back of the box and
thence through a wall to the outside of the building, not from
the bottom of the box as the inspector testified. Most important, according to Mr. Hoyl, an MSHA official had looked at
this particular wiring installation during an earlier "compliance assistance" visit and found it satisfactory for temporary
use.

I accept all of these representations as true.
None,
however, constitutes a valid defense against the citation.
Respondent does not deny that the wiring, wherever it may have
emerged from· the box, was not protected by a bushing. The
bushing requirement set forth in the standard is absolute. As to
the "approval" given the temporary wiring during an earlier
"compliance assistance visit," no evidence discloses that the
MSHA inspector noticed the absence of a bushing. On the
contrary, the evidence tends to show that discussions with that
inspector focused upon the question of whether the temporary
wiring needed to be encased in a conduit for its entire length.
I therefore conclude that respondent violated the standard.
The matters raised by Mr. Hoyl may properly be considered to
affect the size of the civil penalty.
Citation No. 573970, Docket No. WEST 82-215-M
During the course of Inspector Coon's June inspection he
noted that five power switch boxes located in the air house and
dry house lacked labels disclosing their respective purposes. He
testified that he could not readily determine such purposes by
the mere location of the boxes. These conditions, in the
inspector's view, violated the following standard, published at
30 C.F.R. § 57.12-18:
Principal power switches shall be labeled to show
which units they control, unless identification can
be made readily by location.
According to Mr. Coon, the failure to affix labels created a
danger that a miner could inadvertently energize the wrong piece
of equipment, thus possibly putting fellow miners in jeopardy.
Respondent concedes that the switches lacked labels, but
stressed that everything involved was new at the time and that
the company had simply lacked the time to use the plastic tape
labeler which was already on hand.
The facts of record show a violation. The provisions of the
standard make no implied allowance for any citation-free interim
between installation and labeling.
Citation No. 574807, Docket No. WEST 82-215-M
While underground in the mine on June 2, 1982, Inspector
Coon noted what he perceived to be a violation of the safety
standard published at 30 C.F.R. § 57.13-21. That standard
provides:
Except where automatic shutoff valves are used,
safety chains or other suitable locking devices
shall be used at connections to machines of highpressure hose lines of 3/4-inch inside diameter or

25uC

larger, and between high-pressure hose lines of 3/4inch inside diameter or larger, where a connection
failure would create a hazard.
According to the inspecto~, an air-operated water pump at
the base of the shaft had no automatic shutoff valve and lacked
safety chains (or restraining cables) on the end of the
high-pressure air hose that connected to the pump. The hose was
an inch in diameter. Mr. Coon testified that the pump was in
operation when he observed it, and that when he pointed out the
absence of a chain or cable restraint device, a member of the
crew obtained one from a nearby storage area in the shaft and
attached it immediately. The inspector maintained that an
unrestrained hose, should it become uncoupled during operation,
could whip about, th~s inflicting injury on any nearby miners.
Mr. Hoyl, on behalf of respondent, pointed out that it was
established practice to use cable restraints on the pump in
question.
He said that such restraints are easy to lose and
speculated that the one which had been on the hose had simply
dropped off and been lost in the muck. He also maintained that
the crew had not started the machine at the time of Inspector
Coon's observations.
The inspector, on cross examination, agreed that respondent
had a supply of restraints in the mine, and that the pump had
recently been moved (and therefore disconnected). He nevertheless testified in a convincing way that he was certain that it
was in operation when he noticed the absence of any sort of hose
restraint.
I credit that testimony, and consequently find that the
violation is established.
Citation No. 2009724, Docket No. WEST 83-53-M
Inspector Coon visited respondent's mine a second time on
September 22, 1984. On that occasion he inspected the hoist.
The undisputed evidence shows that the Silver Ventures hoist
operates on rails on an inclined shaft which, at the time of
inspection was over 100 feet deep. The hoist, according to Mr.
Coon, lacked an overspeed device as required by the standard
published at 30 C.F.R. § 57.19-7. That standard provides:
All man hoists shall be provided with devices to
prevent overtravel. When utilized in shafts exceeding 100 feet in depth, such hoists shall also
be provided with overspeed devices.
Inspector Coon testified that the overspeed device had been
on the hoist in June when he examined· it, but had since been

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removed. The hoist operator, he said, informed him that the
device had been removed because of "some vibration problems."
This was done some three weeks before; the device had been "sent
..• down to be repaired," the hoistman told the inspector. The
inspector testified that the hoist conveyance was moving men up
and down the shaft while he was present on September 22, 1982.
Under cross examination he conceded that he had not actually
seen the overspeed device in June. Rather, he said, he had
inspected the hoist operator's log entries which showed both the
overtravel and overspeed devices had been checked daily to
confirm that they were operational. He denied that a worm gear
drive operating through a speed reducer would furnish protection
equivalent to that provided by a separate overspeed device.
In addition to Mr. Coon, another inspector, Mr. Edward
Machesky, testified for the petitioner concerning this citation.
Machesky indicated that he had been present twice at the mine
site prior to Inspector Coon's June inspection. According to
Machesky, he was present at the compliance assistance visit in
April of 1982, and was present again in early May of that year
for a complaint triggered by a worker complaint concerning the
unauthorized use of the hoist conveyance to move men. Machesky
insisted that during the first visit the lack of an,overspeed
device was pointed out to management, and that it was agreed that
materials but not miners could be moved by the hoist.
(Other
evidence shows that miners coul~ gain access to all levels of the
shaft by a series of ladders.) He maintained that the second
visit, in response to a telephone complaint, was limited
primarily to interviews with mine personnel to determine whether
the hoist had been "misused" to haul miners. The evidence
gathered, Machesky testified, did not warrant issuance of any
citations. He insisted, however, that no permission had been
given during either inspection to hoist miners without an
overspeed device.
Mr. Hoyl, testifying for respondent, first stressed that in
his belief the hoist required no separate overspeed device since
the skip or conveyance was raised or lowered by a low-speed motor
with "electric dynamic braking" as well as manual braking and a
deadman switch. Hoyl insisted that the entire hoist was
intensely examined by the inspectors on the May visit and it had
no overspeed device then. The company did attach such a device
"just prior" to Inspector Coon's September 22 visit, but the belt
was too short. Longer belts were on order when Coon issued the
citation. Beyond all this, according to Mr. Hoyl, he had an
understanding with other MSHA officials, particularly one Paul
Tally of the Denver off ice, th~t the existing safeguards on the
hoist were sufficient.
I found Mr. Hoyl a credible witness throughout, and I
therefore accept that he genuinely believed that the hoist was
safe for moving miners.
I also accept that he believed that at
least some MSHA officials agreed.with him.
I am not convinced,

however, any MSHA official did in fact agree.
It is clear that
neither Coon nor Machesky did, and I find it difficult to believe
that any official, in the face of the clear words of the
standard, would take such a position. Far more likely, I think,
was a mutual misunderstanding between MSHA and Mr. Hoyl.
Upon the evidence I must find that an overspeed device is
a specific mechanism, operating quite beyond those existing
features described by Mr. Hoyl. The later installation of such a
device strengthens the finding. Besides, the plain words of the
standard clearly contemplate the necessity for such a separate
device on all man-hoists which fall within the shaft-depth
definitions of the standard.
Finally, even if someone connected with MSHA had indeed told
Mr. Hoyl that he could lift men or women on the hoist without an
overspeed device, such a clearly erroneous piece of advice could
not fully exculpate the company - not, at least, in the absence
of evidence of a deliberate design to mislead the company to its
detriment. There is no such evidence in this case. We must also
bear in mind Inspector Machesky's strong testimony that in May he
specified to management that miners could not ride in the skip.
The evidence shows a violation of the cited standard,
although the surrounding circumstances militate against a heavy
penalty.
Penalties
The petitioner seeks relatively small penalties for the
three electrical violations and the air hose infraction.
Specifically, he proposes a $36.00 for the wiring in the air
house (citation 573968), and $20.00 for each of the other
violations comprising docket No. WEST 82-215-M (citations 573969,
573970, and 574807). Additionally, he proposes another $20.00
for the single hoist violation comprising docket No. WEST 83-53-M
(citation 2009724).
Section llO(i) of the Act requires the Commission, in
penalty assessments, to consider the mine operator's size, its
negligence, its good faith in seeking rapid compliance, its
history of prior violations, the effect of a monetary penalty on
its ability to continue in business, and the gravity of the
violation itself.
The evidence in the present case shows Silver Ventures to be
quite small, with no history of prior violations.
It also tends
to show that most of the violations were transitory, the products
of the start-up phase of a new operation. Moreover, the record
shows that, overall, the respondent displayed a commendable interest in complying with all s~fety requirements from the day the
project began.
Its good faith was never in question. Where
penalties are concerned virtually all factors weigh heavily in
respondent's favor.

I must note, however, that the representatives of the
Secretary of Labor appear to have been well aware of all of these
mitigating considerations, since the proposed penalties were all
minimal. On· balance, I must conclude that the modest penalties
proposed by the petitioner should be imposed.
Consequently, I hold that $20.00 is the appropriate penalty
for each of the citations here involved except for the wiring
violation described in citation 373968. For that violation
$36.00 is appropriate.
CONCLUSIONS OF LAW
Upon the entire record, and in conformity with the factual
findings embodied in the narrative portion of this decision, it
is concluded:
1.
matter.

That the Commission has jurisdiction to decide this

2. That respondent, Silver Ventures Corporation, violated
the standard published at 30 C.F.R. § 57.12-30 as alleged in
Citation No. 573968 in Docket No. WEST 82-215-M; and that $36.00
is the appropriate penalty for the violation.
3. That respondent violated the standard published at 30
C.F.R. § 57.12-8 as alleged in Citation No. 573969 in Docket No.
WEST 82-215-M; and that $20.00 is the appropriate penalty for'.the
violation.
4. That respondent violated the standard published at 30
C.F.R. § 57.12-18 as alleged in Citation No. 573970 in Docket No.
WEST 82-215-M; and that $20.00 is the appropriate penalty for the
violation.
5. That respondent violated the standard published at 30
C.F.R. § 57.13-21 as alleged in Citation No. 574807 in Docket No.
WEST 82-215-M; and that $20.00 is the appropriate penalty for the
violation.
6. That respondent violated the standard published at 30
C.F.R. § 57.19-7 as alleged in Citation No. 2009724 in Docket No.
WEST 83-53-M; and that $20.00 is the appropriate penalty for the
violation.

ORDER
Accordingly, it is ORDERED that all citations herein are
affirmed, and that respondent shall pay penalties totaling
$116.00 within 30 days of the date of this decision •

.._.,~/?.... ~

ohn A. Carlson
Administrative Law Judge

Distribution:
Margaret Miller, Esq., and James H. Barkley, Esq., Office of the
Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961
Stout Street, Denver, Colorado 80294 (Certified Mail)
Mr. Alfred G. Hoyl, President, Silver Ventures Corporation,
Los Lagos Ranch, Rollinsburg, Colorado 80474 (Certified Mail)

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c. i:J _L..

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

0CT 31 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 83-171
A/0 No. 15-02290-03508

v.
INCOAL, INCORPORATED,
Respondent

Docket No. KENT 83-240
A.C. No. 15-02290-03512
No. 11 Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On October 19, 1984, the Secretary filed a motion to
approve a settlement agreement in the above cases.
The two dockets involve nine orders of withdrawal which
were issued during the investigation of a coal dust explosion
which occurred at the subject mine on December 7, 1981. A
copy of the Investigation Report was filed with the settlement motion. The explosion resulted in the deaths of eight
miners including the section foreman.
The investigation
concluded that the explosion occurred with the face and
right crosscut were being blasted simultaneously from the
solid in the No. 1 entry. A train of explosives in the
second hole from the right rib failed to detonate causing
the rib hole to blow out and igniting coal dust in sµspension
fro~the blast of the other holes and coal dust in suspension
which had accumulated on the floor, roof and ribs.
Citation No. 1112641 charged_ a- violation of 30 C.F.R.
75.400 because of an accumulation of coal dust.
It was
originally assessed at $10,000 and the parties propose to
settle for $10,000.
§

Two orders, Nos. 1111027 and 1111028, charged separate
violations of 30 C.F.R. § 75.1303 because (1) blast holes
were being shot with excessive explosive powder in the hole
and without proper stemming; (2) one blast hole contained a
continuous train of undetonated explosives without a blasting
cap. Each of these violations was assessed at $10,000, and
the parties propose to settle each for the payment of $10,000.

Order No. 1112643 charged a violation of 30 C.F.R.
75.316 because line brattice was not installed or maintained to provide adequate ventilation to the working faces.
This violation was assessed at $8,000 and the parties
propose to settle for $8,000.
§

Order No. 1112645 charged a violation of 30 C.F.R.
75.403 because the mine dust had an incombustible content
below the minimum required for the intake and return
aircourses. This violation was assessed at $8,000, and
the parties propose to settle for $4,000.
§

Order No~ 1112642 charged a violation of 30 C.F.R.
75.1307 because the explosives for use in the working
places were not kept in separate closed containers located
out of the line of blast and not less than 50 feet from the
working face. This violation was originally assessed at
$6,000 and the parties propose to settle for $6,000.
§

Order No. 1112644 charged a violation of 30 C.F.R.
75.401 because water was not applied to coal dust on the
ribs and roof to minimize explosive hazards. This violation
was.originally assessed at $6,000 and the parties propose
to settle for $6,000.
§

Order No. 1111026 charged a violation of 30 C.F.R.
75.1305 because explosives in their original shipping
paper were trapsported to the working section in an exposed
metal bucket of a battery powered scoop. This violation
was originally assessed at $5,000 and the parties propose to
settle for $2,000. The investigation did not implicate this
violation as a cause of, or as contributing to the fatal
explosion.
§

erder No. 1111025 (in Docket No. K-E.NT 83-240) charged
a violation of 30 C.F.R. § 75.1702 because the operator did
not effectively search for smoking materials to insure that
persons entering the underground ar~as of the mine did not
carry smoking materials, matches 9r lighters. This violation
was originally assessed at $1,000 and the parties propose to
settle for $1,000. The investigation did not implicate this
violation as a cause of, or as contributing to the fatal
explosion.
Thus, the nine violations were originally assessed at
a total amount of $70,000. The settlement proposal totals
$57,000.
In addition, the parties propose that the $57,000
be paid in 6 monthly installments as follows:
$7,000 shall
be paid on the last day of November, 1984 and $10,000 shall
be paid on the last day of each of the next 5 months. This

method of payment is proposed because the operator states
that .the financial condition of the operator makes payment
very difficult. The operator does not admit that the
violations charged in the orders and citation occurred.
All of the violations involved in these proceedings
were very serious. Those directly related to the cause of
the explosion, Citation No. 1112641, Order Nos. 1111027 and
1111028 were extremely serious and were assessed at the
statutory maximum amount.
Those contributing to the fatal
explosion, Order Nos. 1112643, 1112642, and 1112644 were
assessed at $8,000, $6,000 and $6,000 respectively.
These
violations were also extremely serious. The violations of
30 C.F.R. § 75.1305 (Order No. 1111026) and 30 C.F.R.
§ 75.403 (Order No. 1112645), while very serious were not
directly related to the explosion, nor was the violation of
30. C.F.R. § 75.1702 (Order No. 1111025). All were the result
of the operator's negligence.
The operator is of medium size. The payment of the
penalties will not affect its ability to remain in business.
. I have carefully considered the settlement proposal in
the light of the criteria in section llO(i) of the Act and
conclude that it is in the public interest.
Therefore, IT IS ORDERED that the settlement motion is
GRANTED; IT IS FURTHER ORDERED that the operator pay the sum
of $7,000 on the last day of November, 1984 and the sum of
$10,000 on the last day of each month for the following
5 months until the total of $57,000 is paid. When that
amount has been paid these proceedings are DISMISSED.

1/t/'µ-5
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.,~"Dck"-''lei

James A. Broderick
Administrative Law Judge

Distribution:,
Edward H. Fitch, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington,
VA 22203 (Certified Mail)
Robert I. Cusick, Esq., Wyatt, Tarrant & Combs,
2600 Citizens Plaza, Louisville, KY 40202 (Certified Mail)
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*U.S. GOVERNMENT PRINTING OFFICE:

461-256/1J608