JULY 1989
Commission Decisions
07-06-89
07-20-89

Local 1810, UMWA v. NACCO Mining Company
Birchfield Mining Company

LAKE 87-19-C
WEVA 87-272

Pg. 1231
Pg. 1243

WEST 89-172-DM

Pg. 1245

CENT 89-56-M
WEVA 88-313
WEVA 88-328
WEST 88-67-RM
WEVA 88-311
KENT 89-26-M
PENN 88-245-R
YORK 89-2-M
KENT 89-82
PENN 88-164-R
VA
87-21-D
VA
87-22-D
PENN 88-260
LAKE 89-45-M
WEVA 89-119
CENT 89-54-H
KENT 89-12
KENT 89-28-D
KENT 89-19
SE
88-59-H
WEVA 88-136

Pg. 1246
Pg. 1249
Pg. 1256
Pg. 1280
Pg. 1284
Pg. 1289
Pg. 1301
Pg. 1308
Pg. 1313
Pg. 1318
Pg. 1324
Pg. 1324
Pg. 1327
Pg. 1328
Pg. 1330
Pg. 1336
Pg. 1339
Pg. 1341
Pg. 1343
Pg. 1351
Pg. 1403

PENN 89-146-R

Pg. 1419

Administrative Law Judge Decisions
07-07-89
07-11-89
07-11-89
07-12-89
07-13-89
07-13-89
07-14-89
07-14-89
07-14-89
07-18-89
07-18-89
07-18-89
07-24-89
07-25-89
07-25-89
07-27-89
07-27-89
07-27-89
07-31-89
07-31-89
07-31-89

Sec. Labor for Michael Albert Swinney v.
James Hamilton Construction
Tony Chaney employed by Morton Salt Division
Southern Ohio Coal Company
Smoot Coal Company
Big Horn Calcium Company
Davidson Mining, Inc.
Mountain Parkway Stone Inc.
Rushton Mining Company
Blue Circle Atlantic Inc.
Green River Coal Company, Inc.
Rochester & Pittsburgh Coal Company
Sec. Labor for Donald J. Robinette & Joey
F. Hale v. Bill Branch Coal Co., Inc.
Coal Junction Coal Company, Inc.
Arthur Overgaard/Mathy Construction Co.
Consolidation Coal Company
Carl A. Johnson employed by Horton Salt Div.
George's Branch Coal, Inc.
Sec. Labor for Robert Vaughn v. Sumco, Inc.
Green River Coal Company, Inc.
Dillingham Construction International
Ten-A-Coal Company

Administrative Law Judge Order
07-24-89

Rushton Mining Company

JULY 1989
Review was granted in the following cases during the month of July:
Secretary of Labor, MSHA v. Green River Coal Company, Docket No. KENT 88-152.
(Judge Koutras, June 5, 1989)
Paula Price v. Monterey Coal Company, Docket No. LAKE 86-45-D.
Melick, June 19, 1989)

(Judge

Review was denied in the following case during the month of July:
Troy W. Conway, Jr. v. Peabody Coal Company, Docket No. KENT 88-127-D.
(Judge Melick, June 15, 1989)

The Direction for Review in Amax Potash Corporation, Docket No. CENT 87-72-M
was vacated on July 24, 1989 after a motion from Amax to withdraw the
petition for discretionary review.

COMMISSION DECISIONS

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

July 6, 1989
LOCAL UNION 1810, DISTRICT 6
UNITED MINE WORKERS OF
AMERICA (UMWA)

v.

Docket No. LAKE 87-19-C

NACCO MINING COMPANY

BEFORE:

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

DECISION

BY THE COMMISSION:

This is a compensation proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982)("Mine Act"
or "Act"). The principal issue presented is whether an operator may
challenge in a compensation proceeding the validity of a withdrawal
order and its modification, despite the operator's failure to contest
previously the order or the modification pursuant to section 105 of the
Mine Act (n.4 infra). lf Commission Administrative Law Judge William

lf

Section 111 of the Mine Act provides in part:
[1] 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] of this Act, 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 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

1231

Fauver held that the withdrawal order and the modification that idled
the miners had not been timely contested by Nacco Mining Company
("Nacco") and had become final for purposes of section 111. Finding
that the prerequisites for compensation were met, the judge awarded the
complainants compensation, including prejudgment interest. 9 FMSHRC
1349 (August 1987)(ALJ); 9 FMSHRC 1671 (September 1987)(ALJ). For the
reasons that follow, we affirm the judge's award of compensation and
interest, but direct that the interest be calculated in accordance with
the formula set forth at 54 Fed. Reg. 2226 (January 19, 1989). See Loe.
U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (November 1988-),~
pet. for review filed, No. 88-1873 (D.C. Cir. December 16, 1988).
The material facts are not in dispute. On December 10, 1984,
during an inspection of Nacco's Powhatan No. 6 underground coal mine, an
inspector of the Department of Labor's Mine Safety and Health
Administration ("MSHA") found that an intake-ventilated escapeway in the
north mains area of the mine was not being maintained to ensure safe
passage of mine personnel, including disabled persons. The inspector,
citing a violation of 30 C.F.R. § 75.1704, issued Order of Withdrawal
No. 2329934, pursuant to section 104(d)(2) of the Mine Act, 30 U.S.C.
§ 814(d)(2). ~/ The cited conditions consisted of a failure to maintain
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 [Act], for a failure of the operator to
comply with any mandatory health or safety standard,
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.
30 U.S.C. § 821 (sentence numbers added for convenience).
~/

Section 75.1704, which substantially repeats section 317(f)(l) of
the Mine Act, 30 U.S.C. § 877(f)(l), provides:
Except as provided in §§ 75.1705 and 75.1706, at
least two separate and distinct travelable
passageways which are maintained to insure passage
at all times of any person, including disabled
persons, and which are to be designated as
escapeways, at least one of which is ventilated with
intake air, shall be provided from each working
section continuous to the surface escape drift
opening or continuous to the escape shaft or slope
facilities to the surface, as appropriate, and shall
be maintained in safe condition and properly marked.

1232

appropriate height and width in "many locations" in the escapeway and
the presence of obstructions in the escapeway. The withdrawal order
closed all areas in the north mains of the mine inby the two main east
junction.
The inspector permitted the mine to reopen about 30 minutes after
its closure when he modified the order for the first time. The modification required Nacco to devote at least 25 manshifts per week to
rehabilitating the escapeway until the work was completed. }/ The
modification allowed Nacco to continue its usual mining operations in
the north mains while the work of rehabilitating the intake escapeway
was being conducted. After the issuance of this modification, normal
mining operations resumed, all previously withdrawn miners returned to
work, and Nacco thereafter devoted at least 25 manshifts per week to
rehabilitating the escapeway. MSHA modified the order for the second
time on December 11, 1984, to add an additional thousand feet to the
length of escapeway needing rehabilitation. On January 18, 1985, MSHA
modified the order for the third time to reduce its estimate of the
number of workers affected by its issuance.
On January 25, 1985, the State of Ohio Department of Mines
conducted an inspection of the mine, found that the escapeway violated
Ohio's mining laws, and issued an order to Nacco requiring that Nacco
continue to devote the MSHA-imposed 25 manshifts per week to the
rehabilitation efforts. On March 22, 1985, the state issued another
order to Nacco, requiring some relocation of the route of the escapeway
and continuance of the rehabilitation effort.
On October 2, 1986, about 22 months after the initial issuance of
the withdrawal order, different MSHA inspectors determined that the
violation of section 75.1704 had not been abated and that the time for
abatement should not be further extended. (MSHA inspection responsibility for the Powhatan No. 6 Mine had been transferred as of April 1,
1986, from MSHA's Vincennes, Indiana, office to its Morgantown, West
Virginia, office.) At this time, MSHA issued a fourth modification of
the order to Nacco requiring that the intake escapeway and all active
sections inby be closed and ordering the withdrawal of miners because
the escapeway was alleged to still be in violation in several locations.
Nacco was able to continue mining operations without idling any
Mine openings shall be adequately protected to
prevent the entrance into the underground area of
the mine of surface fires, fumes, smoke, and
floodwater. Escape facilities approved by the
Secretary or his authorized representative, properly
maintained and frequently tested, shall be present
at or in each escapeway shaft or slope to allow all
persons, including disabled persons, to escape
quickly to the surface in the event of an emergency.

'1_/

"Manshift" is defined in part as, "The ... work done by a man in
one shift." Bureau of Mines, U.S. Dep't of the Interior, A Dictionary
of Mining, Mineral, and Related Terms 679 (1968).

1233

miners during the shift on which the modification was issued and for the
rest of that work week by relocating the affected workforce to another
area of the mine. However, during the following work week, on
October 6, 7 and 8, 1986, Nacco laid off the 87 complainants as a result
of the idling effect of the modification. On October 8, 1986, MSHA
determined that the violative conditions had been corrected to a degree
that would allow mining to resume, and it again modified the order to
provide that the escapeway and the north mains could be reopened. At
that time the miners were recalled.
Section 105(d) of the Mine Act provides that an operator or
representative of miners may contest the issuance or modification of an
order issued under section 104 of the Act within 30 days of receipt of
the order or modification and that an operator may also contest the
Secretary's proposed assessment of a civil penalty within 30 days of
receipt. 4/ Neither Nacco nor the United Mine Workers of America
("UMWA"),-the representative of the miners at the Powhatan No. 6 Mine,
contested the initial issuance of the withdrawal order or any of the
subsequent modifications of the order. Further, on May 7, 1985, Nacco,
without contest, paid the civil penalty of $500 proposed by MSHA for the
violation of section 75.1704 alleged in the withdrawal order.

~/

Section 105(d) states in part:
If, within 30 days of receipt thereof, an operator
of a coal or other mine notifies the Secretary that
he intends to contest the issuance or modification
of an order issued under section [104] of this
[Act], or citation or a notification of proposed
assessment of a penalty issued under subsection (a)
or (b) of this section, or the reasonableness of the
length of abatement time fixed in a citation or
modification thereof issued under section [104] of
this [Act], or any miner or representative of miners
notifies the Secretary of an intention to contest
the issuance, modification, or termination of any
order issued under section [104] of this [Act], or
the reasonableness of the length of time set for
abatement by a citation or modification thereof
issued under section [104] of this [Act], the
Secretary shall immediately advise the Commission of
such notification, and the Commission shall afford
an opportunity for a hearing (in accordance with
section 554 of title 5, but without regard to
subsection (a)(3) of such section), and thereafter
shall issue an order, based on findings of fact,
affirming, modifying, or vacating the Secretary's
citation, order, or proposed penalty, or directing
other appropriate relief. Such order shall become
final 30 days after its issuance ....

30 u.s.c. § 815(d).

1234

filed

On

December

the

subject

the

and

order

for

strative

right

to

order

asserted
miners

motion

for

and

intake

because
Act

modifications

in

The

judge

observed

second

sentences

proceed

to
are

order

upon

who

for
1353.

its

third

upon

due

to

the

30

The

judge

modification
that

to

also

awarded
FMSHRC

complainants

the

and
to

the

order
them

contest

of

concluded

as

He

issuance.

in

upheld
upon

the

judge

nor

contrast,

may
based

has

miners

FMSHRC

2,

the

miners

for

1353-54.

$30,424.08

to

and

contested

the

that

In

wages
be
a

in

the

civil

order

UMWA

not

of

finality
the
paid

Nacco

the

and

Id.

the

modification.

1986,

to

waiver

"If

Nacco
compensation
proceeding
the
of
the
its
contesting
order,
validity
and
the
of
a
violation
of
30
C.F.R.
75.1704"
charge
its
the
of
the
October
arguments
attacking
validity
could
be
not
heard.
9 FMSHRC
1353.
The
at
judge
conceded

at

pursuant

from

had

be

contest

the

the

be

not

operator's

that

the

In

stated,
final
law,

that

and

compenof

9

a

of

Nacco

can

issued
in

when

or

claim

shall
I04]
an
opportunity

given
final.")

matter

first

"all

section

order

an

The

75.1704

neither

is

states,

determined

section

that

a

iii

claim

is

or

established

when

their

of

days

Act
Id.

is,

was

section

iii

being

rights.
it

1352-53.

of

Act

The

the

compensation
to
rights
of
the
validity
at

order

the

upon
of
the

Id.

final

interest,
at

under

105(d)

FMSHRC

section

such

either

violation

Nacco

October

that

miners'

under
[issued
are
parties

after

75.1704

barred

that

sation

104

section

complainants.

compensation
of

interested

review."

became

within

the

iii

section

under

under

a

sentence

the

order

and

..

section

section

for

all

final

further
of

[an]

...

the

review
9

sentence

contest
105(d)
not
challenged

modifications,

of

third

becomes

"statutorily

1986

the

the

modifications

noted

because

which

order

(The

therefore,

supra),

under

to

violation

them

of

arising

(n.1

iii

claim

claim

[is]

penalty

across-

requirements

failure

for

based.

section

subject

requiring

standard

Nacco's

a

withdrawal

a

with

the

issued

safety

cases

is

under

order

...

section

the

the

proceeding
of

compensation

which

104

section

of

sentence

a

provide

not

modification

been

decision

summary

in

after
compensated
public
hearing
The
reasoned
judge

a

of

subsequent

idled

are

because

hearing
immediately
of
independent
any

final.

fully

9

granted
of

until

become

final

that

compensation

heard

third

mandatory

a

does

Responding

had

In
admini-

manner.

judge

sation

of

were

timely

a

the

the

that

on

issued

were

]l]

contended

idled

modification

compensation.
before

the

comwere

compensation.

modification

a

and

order

the

to

to

invalid.

under

withdrawal

entitled

section

UMWA

for

modification

argument

order

obtain

to

complainants
October
2,
1986,

by

were

the

violation

a

oral

the

iii

("UMWA")

America

87

entitled

that

escapeway

the

for

in

section

and

idled

that

event,

any

decision,
summary
of
compensation

award

the

and

Nacco

were

order

of

against

the

were

for

in

met

the

Workers

the

therefore,

and,

Nacco

the

an

of

law
judge,
compensation
of

for

result

decision

and,

were

that

summary

closure

of

sentence

alleged
the

as

Mine

complaint

that
admitting
the
complainants

that

denying

motion

a

8,

answered,

but

United

third

complaint

withdrawal

Nacco

of

the

The

7,

the

1986,

compensation

under

compensation
plainants.
October
6,
of

8,

miners

were

laid

off

he

awarded

Accordingly,
lost

on

computed
Supplemental

October
from

1235

7

and

8,
he

Decision,

plus

compensation

6,
October

interest.

8,
1986,

as

a

was

four

and,
2,

result

compenand
1986,
until

awarded

the

9

FMSHRC

paid.

he

1671-74.

at

We

request,

posing
i0

Nacco's

granted

Nacco's

similar

FMSHRC

related

or

issuance

of

Clinchfield,

briefs.

On

review,

judge

that

Loc.
issues,
Clinchfield
we
dissolved

Nacco

under
modification

compensation

award.

of

in

iii

of
case

We

reject

Nacco's

contention

never

support

a

third

sentence

when
sections

that

a

such

of

section

mine

or

an

or

107

104
orders

enforcement

Section
issued

under

or

30

....

vacation.

condition

order

occurs

abated;

been

104(h)

that

states

that

a

citation

in

original
in

iii

effect

Nacco

effect,

as

that

not
to

mines

or

notes

that

defines

"modify"

that

request
the
this

for

existing

to

our

"i:

as

as

modified.

effect
but

of

the
See

(February

m

1988).
order

or

modified,

Commission

the

or

from

termination

determines
when

that

either

the

the

that

the

citation

or

void.

Thus,

the

language

of

issued

under

order

or

does

ceases

to

the

not

have

section

necessarily

mean

effect

following

any

original

citation

Valley
Ohio
Valleynow
operator."
Op.
substitution

and
and

of

mention

order

or

is

reflective

idle

miners

by

issuing

Webster's

Coal

New

make

less

for

review,
In

1

the

on
n.

amendment
to

decision.

1236

i.
of
refer

MSHA's
modifications

the

Powhatan

its

brief,

the
case

to

the

No.
the

763
2:

6

to

Mine

operator

the

as

of

any

caption,
operator

of

moderate;

absence

the

lack

Dictionary

...

litigation

In

in

of

Collegiate

extreme

Company.

"carries

continue

"modification"

rather

to

Br.

of

but

direction

Ohio

caption

changed

815(d).

&

concludes

Rather,

lack

close

(1986)

states

the

oversight

an

Nacco

Subsequent
acquired
by

be

the

modified.

contends
is

order

or

by

§§
substantive

Secretary

modified"

suggests.

orders.

responsible

until

citation
as

extant

5/

court

a

issued

by the
814(h)

citation

occurs

issued

contemplates

differs

the

The

compensation
"order"

until

the

vacation

and

remain

any

effect

...,

when

or

that

Modification

null

authority

was

Secretary

§ 814(h).

is

Nacco
of

the

Commission,

modification,

section

by

U.S.C.

143-144

in

withdrawal

a

orders

the

a

iii.

to

U.S.C.

138,

provides
"remain

of

by an
expressly

not
may
in
effect

FMSHRC

Act

shall

30

or

support

section

and

the

event,

any

modification

courts.

modified

the

remains

to

or

"shall

that

citations

subject

issued

as

section

the

104

has

the

all

i0

Termination
cited

Secretary,

104

of

vacated

or
"

courts

104(h)

closed
Act

may
remains

in

the

to
to

cannot

right

modification,

action

Co.,

the

filed
made

miners

under

is

the

it

that,

The

the

or

nevertheless

section

terminated

are

parties

that

modification

a

mine

a

v.

the

and

claim

modified:

of

Coal

and
invalid

At

of two
cases
Ranger Fuel
Co.,
Following

entitle

Act.

the

104

Ohio

Act

that

of

of

nature

action

not

are

states

area

enforcement

Southern

e.g.,

does

compensation

Commission,
the

the

and

stay
arguments

that

iii

be

may
section

under
Secretary
the
Secretary,
Depending
upon
the
underlying

order

this

may

arises

the

5/

review.
resolution

our

2333• UMWA
supra.
Coal,

the

an

order

under

U.

reiterates

section

and

discretionary
pending

and

modification

a

compensation
order

briefing

(May 1988)

612

for

petition

stayed

we

we
as

formal
retain

"Nacco"

in

limit or restrict the meaning of .... " Nacco further argues that in Dart
v. United States, 848 F.2d 217 (D.C. Cir. 1988), the Court determined in
an analogous context that the term "modify" refers to a narrowing, not a
broadening, effect. Thus, according to Nacco, MSHA was not authorized
to modify the withdrawal order in issue, which had not been idling
miners, to provide that miners would be withdrawn.
This case does not require us to decide whether all instances of
modification of withdrawal orders leading to the idling of miners can
support compensation under section 111. However, in general, we reject
Nacco's restrictive interpretation of the power of modification under
the Mine Act and the operator's correspondingly technical interpretation
of section 111. Modifications of citations or withdrawal orders often
expand the scope of the original enforcement action. For example, the
second modification of the original withdrawal order here, of which
Nacco does not complain, enlarged the order's scope to cover an
additional one thousand feet of escapeway requiring rehabilitation.
Further, in ordinary usage, the word "modify" includes not only a
sense of moderation (as Nacco would circumscribe the term) but also a
sense of alteration -- including basic or important amendments not
necessarily confined to moderating change. See, ~· Webster's Third
New Int'l Dictionary (Unabridged) 1452 (1986 ed.)(definition of modify).
Similarly, a standard legal dictionary defines "modify" as meaning:
To alter; to change in incidental or subordinate
features; enlarge, extend; amend; limit, reduce.
Such alteration or change may be characterized, in
quantitative sense, as either an increase or
decrease.
Black's Law Dictionary 905 (5th ed. 1979). This accepted usage is
consistent with a broad, rather than constrictive, view of the
modification power under the Mine Act. We find nothing in the Act's
language or legislative history indicating that Congress intended to
confine modification only to a narrowing sense.
The D.C. Circuit's opinion in Dart, supra, upon which Nacco
relies, does not contradict this conclusion. In that case arising under
the Export Administration Act ("EAA"), the Court overturned the
Secretary of Commerce's reversal of an administrative law judge's export
licensing decision on the grounds that the Secretary's act of reversal
was not authorized by the EAA's administrative review provisions, which
permitted the Secretary only to affirm, modify, or vacate such orders.
848 F.2d at 227-30. In reaching this conclusion, the Court stated:
It is clear that the common usage of the word
"modify" does not describe the Secretary's action in
this case. The dictionary's first meaning of
"modify" is "to make more temperate and less
extreme." Webster's Third New International
Dictionary 1452 (Merriam-Webster ed. 1981). At
most, the word means "to make a basic or important
change in." Id. (fourth definition). In this case,

1237

the Secretary did not "temper" or even "make a basic
change in" the ALJ's decision. Rather, he
completely overturned the ALJ's conclusion •...
848 F.2d at 228 (emphasis added). The Court expressly acknowledged the
alternative sense of modification. In the present proceeding, the
underlying withdrawal order was not "overturned" or "reversed" but was
altered to require further rehabilitation work.
As relevant here, we hold that, in general, withdrawal orders may
be modified by the Secretary to expand, as well as contract, their scope
and their terms. Whether a particular modification is proper must be
determined on a case-by-case basis under the enforcement review
provisions of the Act.
Furthermore, we agree with the judge that having failed to contest
the validity of the order and its modifications pursuant to section
lOS(d), Nacco is barred from raising such challenges in this
compensation proceeding. Section 105 of the Act establishes a
comprehensive scheme for the review of citations and orders issued
pursuant to section 104 of the Act. Section lOS(d) (n.4 supra) provides
operators with the opportunity to contest the validity of a withdrawal
order or modification of a withdrawal order issued under section 104
within 30 days of receipt thereof and to request a hearing. In
addition, after a civil penalty is proposed for any violation cited in
such order, section lOS(a) allows operators 30 days to contest the
citation or proposed assessment of civil penalty. £/

£/

Section lOS(a) of the Act provides:
If, after an inspection or investigation, the
Secretary issues a citation or order under section
104, he shall, within a reasonable time after the
termination of such inspection or investigation,
notify the operator by certified mail of the civil
penalty proposed to be assessed under section llO(a)
for the violation cited and that the operator has 30
days within which to notify the Secretary that he
wishes to contest the citation or proposed
assessment of penalty. A copy of such notification
shall be sent by mail to the representative of
miners in such mine. If, within 30 days from the
receipt of the notification issued by the Secretary,
the operator fails to notify the Secretary that he
intends to contest the citation or the proposed
assessment of penalty, and no notice is filed by any
miner or representative of miners under subsection
(d) of this section within such time, the citation
and the proposed assessment of penalty shall be
deemed a final order of the Commission and not
subject to review by any court or agency. Refusal
by the operator or his agent to accept certified
mail containing a citation and proposed assessment

1238

Section 105(a) specifically provides that if an operator fails to
contest a citation or proposed penalty within 30 days, it shall be
deemed a final order of the Commission not subject to review by any
court or agency. Further, payment of a proposed civil penalty (except
by genuine mistake) extinguishes an operator's right to contest the
underlying citation or withdrawal order. See Old Ben Coal Co., 7 FMSHRC
205, 209 (February 1985). See also Ranger Fuel, supra, 10 FMSHRC at
617-18; Pocahontas Fuel Co., 8 IBMA 136, 143 (1977). By viewing the
contest provisions of section 105 as an interrelated whole, the
Commission has consistently construed section 105 to permit substantive
review. See~·~ Energy Fuels Corp., 1 FMSHRC 299, 308-309 (May 1979).
The compensation provisions of section 111, however, stand apart from
the interrelated structure for reviewing citations, orders and penalties
created by section 105.
The distinct purpose of section 111 is to determine the compensation due miners idled by certain withdrawal orders, not to provide
operators with an additional avenue for review of the validity of the
Secretary's enforcement actions. That section 111 does not provide the
basis for collaterally attacking the validity of an order that underlies
a compensation claim is plainly revealed by the language of section 111,
which, in its first two sentences, affords compensation "regardless of
the result of any review" of an order and in its third sentence affords
compensation "after such order is final." Thus, the Act contemplates
that, for compensation purposes, the validity of the enforcement action
upon which a compensation claim is based is either irrelevant or has
already been otherwise established.
In Ranger Fuel, supra, we concluded that payment of a proposed
civil penalty for an alleged violation precludes an operator from
contesting the validity of the violation in a compensation proceeding.
10 FMSHRC at 617-20. We stated that permitting a challenge to the
violation "could not be reconciled with the statutory framework of
section 105 and 111 of the Mine Act ..•. " 10 FMSHRC at 617. Underlying
our decision in Ranger Fuel was a recognition that, in contest
proceedings under section 105 of the Act, the Secretary is a party,
whereas in compensation proceedings under section 111, only the miners,
or their representative, and the operator are parties. We concluded
that allowing an operator to challenge in a compensation proceeding the
fact of violation despite having paid the resulting civil penalty would
improperly place miners and their representatives in a prosecutorial
role of establishing the violation. 10 FMSHRC at 619. Accord: Int'l U.
UMWA v. FMSHRC, 840 F.2d 77, 81-82 (D.C. Cir. 1988).
In like manner, we conclude here that allowing Nacco to challenge
in this compensation proceeding the validity of the Secretary's action
in modifying the withdrawal order 22 months after its original issuance
so as to cause a further idling of miners necessarily would place miners
of penalty under this subsection shall constitute
receipt thereof within the meaning of this
subsection.
30 U.S.C. § 815(a).

1239

and their representatives in the role of defending, in the Secretary's
absence, the validity of the Secretary's enforcement actions. We
conclude that under the Mine Act that burden is appropriately imposed on
the Secretary in a proceeding triggered by an operator's timely contest
of an enforcement action by the Secretary.
Nacco also asserts that the disparity in the time periods allowed
for an operator to contest an order or modification under section 105(d)
of the Act (30 days) and the time provided under Commission Procedural
Rule 35 (30 C.F.R. § 2700.35) for claimants to file compensation claims
under section l l l (90 days) offends the public's interest in avoiding
enforcement disputes. Op. Supp. Br. 5. Nacco further asserts that the
"practical effect of this disparity is simple -- operators often must
decide whether to contest an order without notice of whether they will
face a compensation claim." Id. We disagree. Section 105(d) and
Commission Rule 35 specify the times for requesting a hearing and,
although the time frames are different, Nacco had ample notice of its
possible section 111 exposure from the fact that miners were withdrawn
who lost pay as a result of MSHA's enforcement actions.
Nacco further contends that it had the right to wait to contest
the modification until a civil penalty was assessed. Here, however, the
civil penalty for the violation alleged in the order had been assessed
and paid before the modification was issued. Op. Br. 6. Section 105(d)
of the Act (n. 4 supra) provides operators with the opportunity to
contest and request a hearing concerning an order of withdrawal or
modification of an order issued under section 104 within 30 days of
receipt thereof. In addition, after a civil penalty is proposed for any
violation cited in such order, section 105(a) (n. 6 supra) allows the
operator 30 days to contest the citation or proposed assessment of
penalty. Section 105(a) specifically states that if an operator fails
to contest a citation or proposed penalty within 30 days, it shall be
deemed a final order of the Commission not subject to review by the
court or agency. In the present case, Nacco was assessed a penalty of
$500 for the violation of 30 C.F.R. § 75.1704, which it paid on May 7,
1985, without contest. As penalties are assessed for violations, and
the alleged violation had occurred on December 10, 1984, no new penalty
was to be forthcoming for the October 2, 1986, modification as no new
violation was alleged in the modification. Since a civil penalty cannot
be assessed without a violation, Nacco could not wait for a civil
penalty assessment before initiating a contest of MSHA's modification
action. Thus, if Nacco truly expected the issuance of another civil
penalty assessment in conjunction with the modification, it erred and
forfeited its right to contest the modification by failing to file for
review in a timely manner under section 105(d). See Old Ben, 7 FMSHRC
at 209. Therefore, we hold that because Nacco did not avail itself of
the opportunities to contest in a timely manner pursuant to section 105
either the validity of the section 104(d)(2) order, or the penalty
proposed for the violation, or the validity of any of the subsequent
modifications, it is precluded from raising such challenges here. We
emphasize that we do not reach the validity of the Secretary's
enforcement actions at the Powhatan No. 6 Mine. The steps taken by the
Secretary to achieve compliance with section 75.1704 were, at least,

1240

open to question. ZI We are troubled that the operator and the miners
allowed such an oscillatory enforcement policy to persist. Nevertheless, there being no dispute in this compensation proceeding
concerning the "nexus" between the modified order and the complainants'
idlement, we affirm the judge's award of compensation. See, e.g.,
Ranger Fuel, 10 FMSHRC at 620-21.
Finally, we turn to the question of interest. The judge ordered
Nacco to pay a total of $30,424.08 in compensation to the complainants,
plus interest computed in accordance with our decision in Secretary on
behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042 (December 1983).
Although Nacco asserts that complainants awarded compensation under
section 111 are not entitled to prejudgment interest, or that if they
are so entitled, it is error to compute the interest according to the
"quasi-punitive" Arkansas-Carbona formula, it also acknowledges that our
Clinchf ield decision determines these issues for purposes of this
proceeding. Op. Br. at 2 n.2. 8/
In Clinchfield, we concluded that interest may properly be
included in a compensation award and that it should accrue from the date
that the compensable pay would have been paid but for the idlement until
it is tendered. 10 FMSHRC at 1501, 1503. We also approved, effective
January 1, 1987, use of the short-term Federal rate applicable to the
underpayment of taxes as the rate for calculating interest, discarding

ZI

In other cases pending before the Commission, the Secretary has
recognized the significance of escapeways:
"The presence of adequate escapeways for use by all miners in an
emergency is one of the most important of the mandatory safety standards
under the Mine Act." Secy. 's Br., Utah Power and Light Co., Docket Nos.
WEST 87-211-R, WEST 87-224-R, at 8.
"An adequate escapeway system is crucial for miner safety, and
violations involving the maintenance of escapeways thus are extremely
serious." Id. 11.
"The statutory standard requiring adequate escapeways from
underground coal mines ... and the implementing mandatory standards
are fundamental safety standards necessary to help prevent injuries and
fatalities in the event of underground emergencies. Violations of such
standards can have disasterious (sic) results should such an emergency
occur." Secy. 's Pet. for Discr. Rev., Rushton Mining Co., Docket No.
PENN 88-99-R, at 3.
~/

The judge directed the parties to confer as to the amount of
interest owed. The parties, however, could not agree as to whether
interest was owed and they offered to submit briefs on the interest
issues. The judge did not entertain the parties' offers to submit
briefs but, instead, rendered his supplemental decision fixing the
amount of the compensation award and interest in accordance with
Arkansas-Carbona. Nacco argues that the judge erred in awarding
interest without the benefit of the parties' memoranda of law on the
subject. Although allowing the briefs may have been the preferred
procedure, we see no error on the judge's part and note that Clinchfield
resolves the substantive interest issues.

1241

for periods conunencing after December 31, 1986, use of the adjusted
prime rate previously approved in Arkansas-Carbona. 10 FMSHRC at 150406. Therefore, while we affirm the judge's awa~d of compensation and
interest, we modify his order regarding the computation of interest by
directing that interest be computed as provided in Clinchfield, and 54
Fed. Reg. 2226, supra.
For the foregoing reasons, we affirm the judge's grant of the
complainants' motion for sununary decision and his award of compensation
and prejudgment interest, but we modify the judge's order regarding
computation of interest.

~~?J //
/j'

cz_~--L -e~--C'c~L.!~/t't-~_

.

Richard V. Backley, Conunission~~

~~ t(, ~,,Lz__
oyce A. Doyle, Commissi<Sner

a,VYVI~
James A. Lastowka, Conunissioner

,'l-fL~/i1~-"J
L. Clair Nelson, Conunissioner

Distribution
Thomas C. Means, Esq.
Timothy M. Biddle, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Mary Lu Jordan, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge William Fauver
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Skyline 2 Center
Falls Church, Virginia 22041

1242

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

July 20, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
UNITED MINE WORKERS OF AMERICA

v.

Docket No. WEVA 87-272

BIRCHFIELD MINING COMPANY

ORDER

By order dated July 6, 1989, the Commission granted the Secretary
of Labor and the United Mine Workers of America until July 14, 1989,
within which to respond to the renewed motion to dismiss and offer of
judgment of Birchfield Mining Company ("Birchfield") or to submit with
Birchfield a joint motion for approval of settlement. On July 17, 1989,
the Secretary's Joint Motion for Approval of Settlement was handdelivered to the Commission along with the Secretary's Motion for Leave
to File Joint Motion One Day Out of Time. Upon consideration of the
latter motion, it is granted and the Joint Motion for Approval of
Settlement is accepted for filing this date.

For the Commission:

4::~~~
Commissioner

1243

Distribution
Anthony J, Cicconi, Esq.
Shaffer & Shaff er
300 State Street
P.O. Box 38
Madison, West Virginia 25130-0038
William D, Stover, Esq,
MAE Services
40 Eagles Road
Beckley, West Virginia 25801
Mary Lu Jordan, Esq,
United Mine Workers of America
900 15th Street, N.W.
Washington, D.C. 20005
Henry Chajet, Esq,
Doyle & Savit
919 18th Street, N,W.
Suite 1000
Washington, D,C, 20006
Willam E, Hynan, Esq.
National Coal Association
1130 17th Street, N,W,
Washington, D.C. 20036
Michael T. Heenan, Esq,
Smith, Heenan & Althen
1110 Vermont Avenue, N,W.
Suite 400
Washington, D.C. 20005
Edward M. Green, Esq.
Mark G, Ellis, Esq.
American Mining Congress
1920 N Street, N.W., Suite 300
Washington, D.C. 20036
Dennis Clark
U.S. Department of Labor
Off ice of the Solicitor
4015 Wilson Boulevard
Arlington, VA 22203

1244

ADMINISTPATIVE LAW JUDGE DECISIONS

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

rJUL

7 1989

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
MICHAEL ALBERT SWINNEY,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 89-172-DM
MD 88-51
Morenci Mine

v.
JAMES HAMILTON CONSTRUCTION,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Lasher

The parties have reached an amicable resolution of this
matter. The terms of the agreement are that Complainant, in
return for the payment of $1,000.00, agrees to dismiss this
matter. Complainant also waives civil penalties.
In the premises, the settlement appears appropriate and
is approved.
Accordingly, if i t has not previously done so,
Respondent is ordered to pay Complainant the sum of $1,000.00
in accord with the settlement agreement immediately upon receipt
of this decision. It is further ordered that upon such payment
these proceedings be deemed dismissed with prejudice with each
party to bear his(its) own costs.

vf/!:!-<k·-/ ct: r:,~£.~.'Jl -

Michael A. Lasher
Administrative Law Judge

Distribution:
Patricia Jeanne Howze, Esq., Office of the Solicitor, U.S.
Department of Labor, 71 Stevenson Street, Suite 1020, P.O.
Box 3495, San Francisco, CA 94119-3495
(Certified Mail)
Mr. Michael Albert Swinney, P.O. Box 26391, TUcson, AZ 85706
(Certified Mail)
Jeffrey A. Dahl, Esq., Lamb, Metzgar & Lines, P.O. Box 987,
Suite 3000, Third Central Plaza, 300 Central Avenue, s.w.
Albuquerque, NM 87103 (Certified Mail)
James Hamilton Construction, P.O. Box Drawer 1287, Silver City,
NM 88602
(Certified Mail)
1245

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

22041

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 89-56-M
A.C. No. 16-00970-05614-A

v.
Morton Salt Weeks Island Mine
TONY CHANEY, Employed by
MORTON SALT DIVISION/
MORTON THIOKOL INC.,
DEFAULT DECISION
Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil
penalty filed by the petitioner against the respondent Tony
Chaney pursuant to section llO(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 820(c). The petitioner seeks a
civil penalty assessment in the amount of $400, against the
respondent for an alleged knowing violation of mandatory safety
standard 30 C.F.R. § 57.9003, as noted in a section 104(d) (2)
Order No. 2866484, issued on August 25, 1987, at the Weeks Island
Mine operated by Morton Thiokol, Inc., in New Iberia, Iberia
Parish, Louisiana. According to the proposal filed by the
petitioner, the respondent was employed at this mine as a mine
maintenance supervisor, and was acting in that capacity at the
time the order in question was issued.
The pleadings in this case reflect that copies of the
petitioner's proposed civil penalty assessment were served on the
.respondent by certified mail on March 16, and 24, 1989, and the
return certified mailing receipt from the U.S. postal service
reflects that the respondent received the proposed civil penalty
assessment notification on March 27, 1989. However, the
respondent failed to file an answer to the civil penalty
assessment proposal as required by Commission Rule 28, 29 C.F.R.
§ 2700.28.
In view of Mr. Chaney's failure to file an answer, I issued
an Order to Show Cause on May 22, 1989, directing him to explain
why he should not be held in default and immediately ordered to
pay the proposed civil penalty assessment for his failure to file
an answer to the civil penalty assessment proposal filed against

1246

him by the petitioner. The order further directed Mr. Chaney to
respond within ten (10) days. The return certified mailing
receipt from the U.S. Postal Service reflects that Mr. Chaney
received my order on May 24, 1989. However, as of this date, he
has not responded.
Discussion
The applicable Commission Rules in this case provide as
follows:
29 C.F.R. § ·2700.28
§

2700.28 Answer.

A party against whom a penalty is sought shall
file and serve an answer within 30 days after service
of a copy of the proposal on the party. An answer
shall include a short and plain statement of the
reasons why each of the violations cited in the
proposal is contested, including a statement as to
whether a violation occurred and whether a hearing is
requested.
29 C.F.R. § 2700.63
§

2700.63 Summary disposition of proceedings.

(a)
Generally. When a party fails to comply with
an order of a judge or these rules, an order to show
cause shall be directed to the party before the entry
of any order of default or dismissal.
(b)
Penalty proceedings. When the judge finds
the respondent in default in a civil penalty
proceeding, the judge shall also enter a summary order
assessing the proposed penalties as final, and
directing that such penalties be paid.
The record in this case establishes that the respondent was
served with copies of the petitioner's proposal for assessment of
civil penalty for the alleged violation in question and that he
has failed to file a timely answer.
In addition, he has failed
to avail himself of an opportunity to explain why he did not file
a timely answer, and he was advised of the consequences of his
failure to do so. He has also failed to respond to my show cause
order where he was specifically advised that his failure to
respond and file an answer would place him in default. Under the
circumstances, I conclude and find that the respondent Tony
Chaney is in default and has waived his right to be further heard
in this matter.
I see no reason why the petitioner's proposed
civil penalty assessment of $400 should not be affirmed and a

1247

final order entered assessing this penalty against Mr. Chaney as
the final order of the Commission.
ORDER
Pursuant to Commission Rule 63, 29 C.F.R. § 2700.63,
judgment by default is herewith entered in favor of the
petitioner, and the respondent Tony Chaney IS ORDERED to
immediately pay to MSHA the sum of $400, as the final civil
penalty assessment for the violations in question.

tff

A.
1- -~ , t1,t;.:.,,~,;t.-q·ez>rge f.- Koutras
~Administrative

Law Judge

Distribution:
J. Philip Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Mr. Tony Chaney, 4121 Hill Top, Brunswick, OH 44212
(Certified Mail)

1248

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

JUL 111989
SECRE:'rARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 88-313
A~C. No. 46-03805-03863

v.
Martinka No. 1 Mine
SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Covette Rooney, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
David M. Cohen, Esq., American Electric Power
Service Corporation, Lancaster, Ohio, for
Respondent.

Judge Maurer

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq., the "Act," for alleged violations of regulatory standards.
The general issues before me are whether the Southern Ohio
Coal Company (SOCCO) has violated the cited regulatory standards
and, if so, what is the appropriate civil penalty to be assessed
in accordance with section llOCi> of the Act.
Additional issues
are also addressed in this decision as they relate to specific
citations or orders.
The case was heard in Morgantown, West Virginia on
February 2, 1989. Both parties have filed post-hearing proposed
findings of fact and conclusions of law which I have considered
along with the entire record in making this decision.
Prior to the hearing, petitioner filed a motion for partial
decision and order approving settlement that would dispose of
four out of the five citations/orders involved in this docket. A
reduction in penalty from $4,050 to $3350 is proposed for those
four only.
I have considered the representations and
documentation submitted by motion in this case, and have
concluded that the proffered settlement is appropriate under the
statutory criteria set Earth in section llOCi) of the Act. 1 so

1249

approved the petitioner's motion from the bench at the hearing.
Pursuant to the Rules of Practice before this Commission, this
written decision confirms the bench decision I rendered at the
hearing, approving the partial settlement of this case.
The aforementioned partial settlement did not include Order
No. 2895785, which alleges a violation of 30 C.F.R. § 75.220 and
proposes a civil penalty of $500. That alleged violation and
"unwarrantable failure" special finding were tried before me at
the hearing on February 2, 1989.
STIPULATIONS
The parties stipulated to the following (Tr. 7-9):
1.

The Martinka Number 1 Mine is owned and
operated by Respondent, Southern Ohio Coal
Company.

2.

The Martinka Number 1 Mine is subject to the
jurisdiction of the Federal Mine Safety and
Health Act of 1977.

3.

The Administrative Law Judge has jurisdiction
over these proceedings.

4.

The subject order was properly served by a duly
authorized representative of the Secretary of
Labor upon an agent of the Respondent at the
date, time and place stated therein and may be
admitted into evidence for the purpose of establishing its issuance, but not for the truthfulness or relevance of any statements asserted
therein.

5.

The assessment of a civil penalty in this
proceeding will not affect the Respondent's
ability to continue in business.

6.

The appropriateness of the penalty, if any,
to the size of the coal operator's business
should be based upon the fact that the
Respondent's mine size is large and the
Respondent's company size is large.

7.

Martinka Number 1 Mine's history of
violations was 946 violations over 1062

1250

inspection days at the time the instant order
was issued.
8.

The parties stipulate to the authenticity of
their exhibits but not to their relevance nor
the truth of the matters asserted therein.

9.

The parties stipulate that the violation
existed as described in Order ~umber 2895785,
which is the subject of this hearing.

10.

The part and section of Federal Regulations,
which was violated, is 30 C.F.R, Section
75.220, as opposed to 75.200, which was
originally cited. This modification was
issued by MSHA.on 1/31/89.

11.

With reference to the gravity of the instant
violation, the parties stipulate that the
gravity as indicated within the order was -the injury or illness was unlikely but the
injury or illness, which might have occurred
anyway as a result of this violation, was no
lost work days. The parties also stipulate
that the violation was not significant and
substantial in nature.

Order No. 2895785, issued pursuant to section 104{d) (2) of
the Act alleges a violation of the regulatory standard at
30 C.F.R. § 75.220 and charges as follows:
The following unused intersections along the mainline
haulage are not timbered or posted along the rib lines
according to the approved roof control plan no. 26 page
14 of the safety precautions to be taken. The
intersections are No. 169 and 168 outby the 17 left
track switch and 2 cribs at station ~o. 18906 are
incomplete on the walkway side in that they are from 4"
to 10" away from the mine roof and examination date on
one of the crib ties is 12/22/87 initial SW 1:55 p.m.
MSHA Inspector Frank Bowers issued the instant order during
a regular inspection of the Martinka Wo. 1 Mine on April 14,
1988.
At that time, the roof control plan required that "[a]long
mainline track, all unused intersections ••• be timbered or
posted along rib lines". Subsequent to the issuance of the order
herein the requirement for additional support along the mainline

1251

haulage was deleted from the roof control plan as no longer being
necessary.
The inspector testified that the roof was good in these
areas and that the violative conditions he cited were not likely
to result in injury. However, he had spotted what perhaps could
be characterized as "technical" violations of the roof control
plan and he was not getting the kind of cooperation and
corrective acti6n he thought appropriate from mine management.
He testified that he first brought the subject to the attention
of mine foreman Metz on January 11, 1988, when he cited the
operator for several loose cribs between the 15 and 17 Left
sections along the North Main's haulage. He also specifically
mentioned the missing cribs at intersection No. 168 and 169 to
Metz at that time, as well as the incomplete cribs at station
No. 18906.
In fairness to Metz, however, the inspector did not
tell him of those exact locations, but only the general area
involved. Mr. Metz recalls their conversation as well, but only
in general. Mr. Pastorial, who is Chairman of the UMWA Health
and Safety Committee, was accompanying Inspector Bowers on
January 11, 1988, and he also recalls Bowers' conversation with
Metz. He testified that Metz assured them (he and Bowers) that
these conditions would be taken care of. Metz, however, was
apparently unsure of exactly what conditions the inspector was
ref erring to.
Inspector Bowers was next back in the North Main's section
on March 9, 1988. This time he was making a respirable dust
inspection and Peggy Kaham of the operator's Safety Oepartment
was with him.
Once again, he spotted the missing supports -- the
same ones he had told Metz about or at least thought he had. He
states he told Ms. Kaham to have those supports installed.
She
recalls no such conversation nor do her notes for that date
mention that any crib work was necessary.
She maintains that if
he would have told her that such work was necessary, she would
have put it in her notes.
The inspector was next on the North Main's haulage on
April 6, 1988. At that time, he told Wes Hough, the mine
superintendent, about the same area outby 17 Left. He informed
Mr. Hough that there were six crosscuts which had no cribbing and
that there were also two incomplete cribs. He states that
Mr. Hough indicated that these conditions would be taken of. The
inspector also reiterated that these conditions were readily
observable from the mantrip. However, similarly to the
conversation the inspector had with Metz, he did not tell
Mr. Hough the particular intersection numbers in which crosscuts
had not been timbered or the station number in which the two
cribs did not go all the way to the roof.

1252

When the inspector returned again on April 14, 1988, four of
the six crosscuts had been cribbed but two still had not.
Additionally, there were still the two incomplete or loose cribs
he had previously alluded to in his discussions with management.
He issued the admitted violation as an unwarrantable order
because he felt he had brought this matter to the attention of
management in January and now it was April and still the
condition had not been completely corrected.
The problem here as I see it is one of perception and
communication. The inspector knew exactly which particular
crosscuts and cribs he was speaking to mine management about and .
he wanted to see those specific cribs installed or tightened, as
the case may be. However, when he spoke to management
personnel, he spoke only in very general terms about the location
of the missing and incomplete cribs he was concerned about.
Meantime, management knew there were loose cribs and new cribs to
be installed all over the mine for which they had an ongoing
program that would tighten and install cribs over a 3-4 month
period. No special urgency was assumed by management to attach
to the specific cribbing needs spotted by the inspector.
Management could have interrogated the inspector more closely on
exactly which cribs he was talking about or the inspector could
have volunteered the exact locations he wanted to see properly
cribbed immediately. However, as a matter of fact, neither did
much of anything with regard to specifics.
The inspector did not cite the operator when he observed
these admittedly violative conditions on January 11, 1988,
March 9, 1988, or April 6, 1988, relying instead on general
statements to the effect that they (management) would take care
of it. Here again, the operator was speaking of the general
winter program of tightening and installing cribs all over the
mine, but he understood it to be a pledge that they would
forthwith install and/or adjust "his" cribs. He understood this
to be the case in spite of the fact that he had never identified
to anyone with any ascertainable degree of specificity exactly
which cribs were "his". There was testimony that there are some
1400 cribs existant in this mine along the main haulageway and
perhaps 100 crosscuts in the area of the North Mains described by
the inspector.
I should point out here the obvious fact that it is the duty
of the operator to locate and correct violations of their roof
control plan on their own. They cannot rely on the inspectors to
ferret out all their loose and missing cribs and report the
locations to them.
In this case, however, I am satisfied that
the operator had an ongoing, even if somewhat sporadic program,
of locating cribbing problems and correcting them throughout the
mine in an organized fashion.

1253

Everyone agrees the roof in the North Main's area was good
and bolted according to the roof control plan. The cited
conditions created no hazard and was a non-significant and
substantial violation of the roof control plan. This was another
reason mine management attached no particular urgency to the
inspector's information that he had found some cribbing work that
needed to be done in this area.
In fact, poorer roof conditions
were more likely to be found in the older portions of the mine
and thus those areas were scheduled for earlier attention. The
last area of the mine to be done was the 17 Left section because
this was the newest area of the mine and the roof was known to be
good.
In Emery Mining Corp., 9 FMSHRC 1997 (1987), the Commission
held that unwarrantable failure means aggravated conduct,
constituting more than ordinary negligence, by a mine operator in
relation to a violation of the Act.
While I find that the violation was obvious, and readily
observable from the main line haulage track that was frequently
traveled by management personnel, I do not find the operator's
conduct to be unwarrantable in this instance.
Nor do I find the inspector's three conversations with mine
management personnel generally concerning missing and incomplete
cribs particularly helpful to anyone. Management was already
generally knowledgeable about the cribbing problem along the
mainline haulageway and was taking steps to correct the problem.
Finally, at the time of the inspector's earlier visits in
January, March and on April 6, I don't sense any urgency or
serious concern conveyed by the inspector to the operator that
would have reasonably led them to believe that immediate
attention was required in the subsequently cited area.
For all the foregoing reasons, I find the operator to be
guilty of only ordinary negligence with regard to the instant
violation.
Accordingly, the section 104(d)(2) order at bar will
be modified herein to a citation issued pursuant to section
104(a) of the Act and affirmed as such.
Considering the statutory criteria contained in
section llO(i) of the Act, I find that a civil penalty of $250 is
warranted in these circumstances for this violation.

1254

ORDER
Based on the above findings of fact and conclusions of law,
and on the motion to approve settlement, IT IS ORDERED THAT:
AFFIRi.~ED

1.

Order No. 2895764 IS
of $700 assessed.

2.

Order No. 2895768 IS AFFIRMED and a civil penalty of
$500 assessed.

3.

Order No. 2895770 IS AFFIRMED and a civil penalty of
$950 assessed.

4.

Order No. 2895789 IS AFFIRMED and a civil penalty of
$1200 assessed.

5.

Order No. 2895785 is modified to a Section 104(a)
citation and a civil penalty of $250 assessed.

6.

The Southern Ohio Coal Company pay civil penalties of
$3600 within 30 days of the date of this decision.

Ro
Adm

and a civil penalty

JM~

urer
ative Law Judge

Distribution:
Covette Rooney, Esq., Office of the Solicitor, U.S.
Department of Labor, 3535 Market St., Philadelphia,
PA 19104
(Certified Mail)
David~. Cohen, Esq., American Electric Power Service Corp.,
Fuel Supply Department, P.O. Box 700, Lancaster, OH
43130-0700
(Certified Mail)

/ml

1255

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

22041

JUL 121989
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEVA 88-328
A.c. No. 46-06686-03590
Docket No. WEVA 88-329
A.C. No. 46-06686-03591

SMOOT COAL COMPANY,
Respondent

Smoot Mine
DECISIONS
Appearances:

Mark Malecki, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the
Petitioner;
Mike Carpenter, Mining Engineer, Fork Lick Coal
Processors, Webster Springs, West Virginia, for
the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 820(a), seeking civil penalty assessments for
eleven alleged violations of certain mandatory safety standards
found in Part 75, Title 30, Code of Federal Regulations. The
respondent filed timely answers and requested a hearing. A
hearing was conducted in Charleston West Virginia, and the
parties waived the filing of any posthearing briefs. However, I
have considered all of the arguments made by the parties in their
pleadings, including their oral arguments on the record during
the hearing in my adjudication of these cases.
Issues
The issues presented in these proceedings are (1) whether
the conditions or practices cited by the inspector constitute
violations of the cited mandatory safety standards, (2) the
appropriate civil penalties to be assessed for the violations,
taking into account the statutory civil penalty criteria found in

1256

section llO(i) of the Act; and (3) whether the violations were
"significant and substantial." Additional issues include the
inspector's "unwarrantable failure" findings with respect to one
contested section 104(d) (2) order.
App~icable

Statutory and Regulatory Provisions

1. The Federal Mine Safety and Health Act of 1977;
Pub. L. 95-164, 30 u.s.c. § 801 et seg.
2.

Section llO(i) of the 1977 Act, 30 u.s.c.

3.

Commission Rules, 29 C.F.R.

§

§

820(i).

2700.1 et seg.

Stipulations
The parties stipulated to the following (Tr. 7-8):
1.

The respondent is subject to the Act.

2. The respondent agrees that the conditions
or practices cited by the inspector in the contested
citations and order are true, and the respondent
does not dispute the fact that the violations occurred·
as stated therein.
3. The issues presented in these proceedings
concern the inspector's negligence and gravity
findings.
Discussion
Docket No. WEVA 88-328, concerns six section 104(a)
citations, with special "S&S" findings, and one section 104(d) (2)
order, with special "S&S" and "unwarrantable failure" findings,
and they are as follows (exhibits P-1 through P-12):
Section 104(a) S&S Citation No. 2724242, April 6, 1988,
cites a violation of 30 C.F.R. § 75.403, and the condition or
practice states as follows:
Based on the results of a rock dust survey taken on
3-3-88 in the 3rd right entries 004-0, beginning inby
for approximately 1,000 feet, in the No. 1 thru 6
entries, the laboratory analysis showed that 19 of the
40 samples collected were less than the required
incombustible contest.
_Section 104(d) (2) S&S Order No. 2724637, May 17, 1988, cites
a violation of 30 C.F.R. § 75.1722(b), and the condition or
practice states as follows:

1257

The guards that were provided for both sides of the
head roller on the mains (005-0) section belt conveyor
#10, were not installed and maintained and did not
extend a distant sufficient to prevent a person from
reaching behind the guard and becoming caught between
the belt and the pulley. You could easily reach ihto
the pinch point between the belt and the head roller on
both sides.
Section l04(a) S&S Citation No. 2727872, June 6, 1988, cites
a violation of 30 C.F.R. § 75.316, and the condition or practice
states as follows:
The approved ventilation plan was not being followed on
the 3rd right (004-0) section, three permanent
stoppings on the intake and three stoppings on the
return side of the section belt conveyor, were not
constructed so as to prevent and minimize leakage and
loss of air in that the stoppings were not plastered,
and large openings permitting excessive leakage were
present and also one stopping on the intake side was
crushed to the extent that it was not solid and
substantial.
Section 104(a) S&S Citation No. 2727873, June 8, 1988, cites
a violation of 30 C.F.R. § 75.517, and the condition or practice
states as follows:
The high voltage 12,400 volts alternating current,
transmission cable providing power for the mains
(005-0) section contained one location (splice) where
the outer insulation was damaged for approximately
24 inches. This splice was located in the neutral
entry just outby the section. Ground wire and metallic
shields were exposed.
Section 104(a) S&S Citation No. 2727874, June 18, 1988,
cites a violation of 30 C.F.R. § 75.2ll(c), and the condition or
practice states as follows:
Two overhanging coal ribs (corners), ranging up to
48 inches in length, 18 inches thick, and undercut
30 inches (sloughing), were present on the mains
(005-0) section. The mining height in this area is 48
to 50 inches. The area is traveled by mobile equipment
and persons on foot.
Section 104(a) S&S Citation No. 2727875, June 8, 1988, cites
a violation of 30 C.F.R. § 75.503, and the condition or practice
states as follows:

The continuous-mining machine SN 7725, approval
2G-3182A, used in the face areas of the mains (005-0)
section was not maintained in permissible condition in
that one bolt was missing from the plane flange joint
of one head light lens in front of the operator's deck.
Methane detection ranges from 0.2 to 0.3 percent in
these faces at any given time.
Section 104(a) S&S Citation No. 2727876, June 8, 1988, cites
a violation of 30 C.F.R. § 75.1704-2(e), and the condition or
practice states as follows:
The practice escapeway drills and fire drills at this
mine did not ensure that each miner travel the
escapeways through the working sections up to the main
escapeway at least once every 90 days and that at least
two miner's including the supervisors travel through
the main escapeways up to the portal at least once
every six weeks, on all shifts.
Docket No. WEVA 88-329, concerns four section 104(a)
citations, with special "S&S" findings, and they are as follows
(exhibits P-13 through P-20):
Section 104(a) S&S Citation No. 2127863, May 24, 1988, cites
a violation of 30 C.F.R. § 75.1722(b), and the condition or
practice states as follows:
The guard provided for the tail pulley of the No. 3
belt conveyor was loose and open away from the frame
and the belt roller could easily be contacted by
persons.
Section 104(a) S&S Citation No. 2727864, May 24, 1988, cites
a violation of 30 C.F.R. § 75.400, and the condition or practice
states as follows:
Quantities of loose coal wet to damp to dry was
accumulated under the No. 1 belt conveyor on the (off)
side at several locations, this material ranged up to
6 ft. in length, 12 inches in depth and 18 inches in
width and was accumulated up around the bottom idler
rollers and against the bottom belt at several
locations.
Section 104(a) S&S Citation No. 2727869, May 27, 1988, cites
a violation of 30 C.F.R. § 75.2ll(c), and the condition or
practice states as follows:
Loose broken, (broken between roof bolts) (area showing
signs of pressure) mine roof was present outby the 3rd
right (004-0) pillar section, in the No. 6 intake entry

1259

one crosscut inby survey station 2128 for one crosscut
and also one crosscut to the left of this survey
station. Roof bolts were the sole means of roof
support in these two areas.
Section 104(a) S&S citation No. 2727870, June 6, 1988, citesa violation of 30 C.F.R. § 75.400, and the condition or practice
states as follows:
Quantities of loose coal, ranging 36 inches wide, up to
18 inches in depth and 25 feet in length was
accumulated under the 3rd right section (004-0) belt
conveyor drive.
Petitioner's Testimony and Evidence
MSHA Inspector John Dotson testified as to his background
and experience, and he confirmed that he issued all of the
violations which are the subject of these proceedings in the
course of his inspections at the mine. He also testified with
respect to his special "S&S" findings, the gravity of the
violations, his unwarrantable failure order, and the respondent's
negligence in connection with each of the violations (Tr. 8-115).
Respondent's Testimony and Evidence
Although the respondent's representative cross-examined the
inspector who issued the violations, and presented oral arguments
on the record during the course of the hearing, he presented no
independent sworn testimony or other evidence with respect to any
of the contested violations in issue in these proceedings.
Findings and Conclusions
Inspector Dotson's testimony, which I find reliable and
probative, establishes that all of the conditions and practices
which he observed at the time of his inspections, and which
prompted him to issue the citations and order, clearly support
violations of the cited mandatory safety and health standards.
Further, the respondent agreed and stipulated that all of the
conditions and practices cited by the inspector did in fact
constitute violations of the cited standards, and it offered no
testimony or evidence to rebut the inspector's findings.
Accordingly, I conclude and find that all of the violations have
established by a preponderance of the credible and probative
evidence adduced in these proceedings, and they are all AFFIRMED.
Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause

1260

and effect of a coal or other mine safety or health hazard." 30
C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial ''if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as ·follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
In United States steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Citation No. 2724242
Inspector Dotson stated that rock dust samples were taken on
March 3, 1988, and that the laboratory test results reflected
that 19 of the 40 samples collected contained less than the

1261

required incombustible content. He confirmed that he based his
S&S finding on the fact that the mine has a problem with rib
sloughing which causes an accumulation of combustible coal on the
mine floor, particularly in the area at the third right entrance
which liberates a considerable amount of methane. He stated that
on the day the rock dust samples were taken, air samples
indicated that the mine liberated in excess of one million cubic
feet of methane in a 24-hour period, and he produced copies of
the air samples reflecting the amounts of methane accumulated
from the No. 4 entry along the belt line, belt drive, main return
inby the fan, and the right side of the No. 3 entry. He believed
that the amounts of methane detected in these areas presented a
possible ignition and explosion hazard, and that the areas
contained electrical ignition sources such as energized cables
and belt drives.
In view of the fact that mining machines, roofbolting machines, and shuttle cars operated in these areas while
coal was being mined, any electrical faults or machine sparks
would provide ignition sources, and in the event of an explosion
or ignition in the areas of insufficient rock dusting, the face
areas would be affected, and these conditions would contribute to
the severity of any ignition (Tr. 11-17).
Mr. Dotson confirmed that seven to nine miners working in
the section would be exposed to a hazard, and in the event of an
ignition, they would be exposed to disabling and possible fatal
injuries resulting from burns, low oxygen, and bad air (Tr. 17).
Since the mine liberated excessive methane, an MSHA inspector is
required to check it every 10 days, and he confirmed that MSHA
closed the mine in 1988 because of excessive methane buildup on
two sections (Tr. 22).
Mr. Dotson confirmed that he found no methane in any
explosive ranges on the day of his inspection, and that he was
not aware of any methane ignitions at the mine (Tr. 20) . He
confirmed that the air ventilation was approximately 34,000 cubic
feet per minute (Tr. 19). He also confirmed that methane could
rapidly accumulate in the working section due to interruptions of
ventilation in the face area caused by torn ventilation curtains,
or curtains which are not up and torn down, and damaged stoppings
resulting in the short circuiting of the air.
He confirmed that
such conditions had occurred at the mine where ventilation line
curtains are continuously moved as the equipment moved through
them, and concrete stoppings have crushed out due to pressures
(Tr. 21-22).
The respondent asserted that the violation is not S&S
because there have been no known ignitions in the mine, and the
amount of liberated methane was .2, or two-tenths of one percent,
which is well below the explosive range of 5 percent (Tr. 20).
The respondent also asserted that the inspector confirmed that he
found no interruptions to the ventilation on the day of his
inspection, that the closure of the mine earlier in the year had

1262

nothing to do with the cited conditions, and that the amount of
available air ventilation on the day in question was more than
adequate to dispel any accumulations of methane (Tr. 23-25).
Order No. 2724637
Inspector Dotson stated that he based his S&S finding on the
fact that the mining height in the area where he found inadequate
guarding on both sides the belt head roller was 60 inches, and
the guards were "hanging there and loose." He believed that the
guards were in such condition that anyone could reach into the
pinch point and get caught between the head roller and conveyor,
and that in the event anyone were to stumble, they would come in
contact with the pinch point. He confirmed that belt cleaners,
greasers, belt shift examiners, and electricians travelled the
belt, and they would be exposed to the hazard and disabling
injuries of a reasonably serious nature (Tr. 25-27).
Mr. Dotson confirmed that guards were installed, but were
partially bolted to the belt structure and "were hanging loose
away from the head." They were not secured, and even if they
were, he believed that were not of sufficient size to prevent
anyone from contacting the exposed pinch point, and that this is
contrary to the intent of the cited standard (Tr. 33-34).
Mr. Dotson described the height of the belt as "chest high," and
in view of the height of the mine, anyone walking by the area
would be bent over, and if he were to stumble, he could easily
come in contact with the pinch points which were totally exposed
(Tr. 26-37).
Citation No. 2727872
Inspector Dotson confirmed that he considered the
ventilation violation to be S&S because the cited stoppings were
crushed "to the extent that it had a large opening near the top,"
and "it was possible for it to collapse at any time." Three
other cited stoppings had holes in them caused by the lack of
mortar or sealing materials which resulted from installing them
"dry" without the use of sealing materials to prevent ventilation
leakage. The stoppings on the intake side were installed to
maintain air separation for the belt conveyor and intake air, and
the return stoppings were installed to separate the return air
entries from the belt. In the event of a belt fire, smoke could
find its way through the openings in the stoppings into the
intake air which is used as the intake escapeway out of the mine.
The conditions of the stoppings could also contribute to a loss
of air at the face area. Although the required amount of air was
present, persons in the belt conveyor area would be exposed to
smoke inhalation in the event of a belt fire, and if the
stoppings had crushed out, the intake air would have short
circuited into the return.
If this had occurred, ventilation

1263

would be interrupted, and a possible buildup of methane would
result (Tr. 40-43).
On cross-examination, Mr. Dotson confirmed that at the time
of the inspection coal was being run, and although ventilation
leakage may be common, he stated that such leakage is a problem
in the mine in question because of past ventilation problems.
He
confirmed that no such problems were present on the day of his
inspection and that he found no buildup of methane (Tr. 48).
Resondent asserted that the S&S finding is not justified
because the inspector made a finding of "moderate negligence,"
found no excessive levels of methane, and the ventilation was
adequate (Tr. 48-49).
Citation No. 2727873
Mr. Dotson confirmed that he based his S&S finding on the
fact that the cited 12,400 volt current transmission cable had
sustained damage to its outer insulation for a distance of
approximately 24 inches, and the interior ground wire, monitor
wire, and metallic shields were exposed.
Any moisture in the
area would contribute to the deterioration of the metallic shield
conductor, and could effect the cable safeguard short circuit
protection. Mr. Dotson confirmed that the area was travelled by
mine examiners and other miners, and although he observed no
miners in the area at the time of his inspection, the mantrip
travelled through the area, and mine sampling and supply
personnel would have occasion to travel the area where the cable
was located.
If anyone were to come in contact with the cable,
Mr. Dotson believed that electrocution would result (Tr. 51-53).
On cross-examination, Mr. Dotson confirmed that the cable
was hung and laying to the side of the travelway, and was not on
the mine floor.
It was not located at a designated "crossunder," and the outer mechanical splice had been damaged
"completely into the inner conductors," and he believed it had
been damaged when it was moved up and reconnected (Tr. 54, 58).
He conceded that a mantrip would not likely run over the cable,
unless it were struck and knocked down to the floor, and that it
was not possible that the mantrip would have run over it the way
it was installed on the day of his inspection (Tr. 55). He
believed that it was possible for someone sitting in the mantrip
to contact the cable, but only if the mantrip had gotten close
enough to it, but conceded that this would not occur if the
mantrip stayed on its normal route and the individual was seated
at his normal position in the mantrip (Tr. 56-57).
Citation No. 2727874
Mr. Dotson confirmed that he considered the overhanging coal
rib conditions to be S&S because they were located on an active

1264

section where the coal height was 48 to 50 inches, and seven to
nine miners travelled the area during the course of a shift
either by walking bent over, crawling, or on mobile equipment.
In the event of a rib roll, they could strike these individuals
and cause injury. The ribs are normally cut down by the miner or
pushed and pryed down with bars. The ribs were heavy enough to
break a bone if they were to fall on anyone (Tr. 59-60).
Mr. Dotson identified copies of two MSHA accident reports
concerning coal rib rolls which had occurred in the working face
area of the mine, and he conceded that the cited ribs in question
were not directly in any face area. The prior accidents resulted
in facial lacerations, and a possible concussion or facial
·
fractures sustained by one miner, and back injuries to another
miner (Tr. 61). Mr. Dotson also stated that the mine has "a
sloughing of ribs problem" (Tr. 63).
The respondent pointed out that the prior rib roll accidents
occurred on sections other than those where the citation in
question was issued, that the mining height in these areas was 6
to 7 feet where there is a more frequent opportunity for ribs to
roll if the coal had just been cut, and that under the approved
mine roof-control plan, roof bolts are not required in areas
where the mine height is less than 6 feet, because "in the lower
heights it doesn't slough as bad" (Tr. 66). The respondent also
pointed out that the accident which occurred on November 18,
1987, involved a roof bolter who was struck by a rib while
installi~g roof bolts in higher coal, and that in the cited area
where the height was 48 to 50 inches, "we very rarely have rib
problems in that height because the coal is strong up there where
it doesn't slough as bad." Since MSHA does not require bolting
or "rib boards" in heights under 6 feet, respondent suggested
that MSHA agreed that there are little problems in areas under
6 feet in height (Tr. 67).
Citation No. 2727875
Inspector Dotson stated that he based his S&S finding with
respect to the cited continuous miner permissibility violation on
the fact that the failure to maintain the machine in a
permissible condition while it is operating at the coal face
could contribute to a possible face ignition while the machine is
in operation. He further stated that the permissibility
requirement for this equipment is to prevent the entrance of
methane into the enclosure of the permissible machine component,
and that the machine operator and any helper present while the
machine is being operated would be exposed to a hazard (Tr.
68-69) .
Mr. Dotson explained that one of the four bolts on the
machine headlight was missing, and with the "shaking, jamming,
and tramming" of the machine, the missing bolt could contribute

1265

to the weakening deterioration of the flame path joint, and in
the event of any interruption of the ventilation at the face in
the presence of an explosive mixture of methane, a spark from the
head light connector could ignite the methane (Tr. 70). The
function of the flange joint "is to kill the flame before it gets
to the outside atmosphere," and he conceded that he found no
''opening" in this instance (Tr. 72). He explained further that
the bolts serve to hold the plane flange joint together where the
head light is secured to the machine, and that the purpose of the
plane flange joint is to prevent an ignition should methane get
inside the permissible light component (Tr. 75).
Mr. Dotson confirmed that 5,000 cubic feet of air per minute
is required to be maintained at the end of the ventilation line
curtain where the miner machine and roof bolter are working, and
at any given time, with this amount of air, .2 to .5 percent
methane will be present (Tr. 69). He confirmed that he had no
knowledge of any prior mine face ignitions, and that on the day
of his inspection he found .2 to .5 percent methane present in
the area where the machine was working.
This is not an explosive
mixture, and the air ventilation was adequate (Tr. 71). He
confirmed that an explosion or ignition hazard would be present
if the flange joint had shaken loose, a spark had occurred, and
the right amount of methane and/or coal dust were present to
cause an ignition (Tr. 72).
The respondent did not deny that the bolt was missing, but
argued that "several things had to be happen before we could have
an ignition," and that given the fact that there was adequate
air, no explosive mixtures of methane present, and the absence of
any opening or loosening of the flange joint to allow any methane
to find its way into the component, the respondent did not
believe that the violations was S&S (Tr. 72-73).
Citation No. 2727876
Inspector Dotson stated that he issued the citation after
finding no record that the required escapeway drills were being
conducted, and the admissions by mine management and some of the
miners that the drills were not conducted. He based his S&S
finding on the fact that the mine is approximately three and
one-half miles deep, has two working sections operating on two,
and sometimes three shifts, and is a hazardous mine because of
its high methane levels. Escapeway drills are necessary to
familiarize all miners on the working shifts with the mine
escapeways, and a foreman cannot be relied on to show the miners
the way out of the mine in an emergency because he may one of the
injured persons (Tr. 77-79).
On cross-examination, Mr. Dotson stated that there is no
requirement for recording the fact that the required drills were
made (Tr. 84).
He confirmed that his review of the mine records

1266

established that the required fire boss examinations were being
conducted on the escapeways, and that escapeway maps were posted
on each of the working sections. He also confirmed that the
respondent conducts safety meetings at the mine, but he has never
attended any (Tr. 80-82).
Mr. Dotson stated that escapeway drills are necessary in
order to that newly hired miners, or miners shifted from one
section to another, know of the escapeways, and to insure that at
least one person bn each shift, other than a supervisor, knows
how to exit the mine in the event of an emergency. Mr. Dotson
confirmed that if each of the miners knew the escapeway routes,
he would not consider the violation to be S&S (Tr. 82).
He
believed that in the event of a methane ignition, every person in
the mine would be affected, and depending on the work shift, at
least 30 miners would be exposed to hazards, including
entrapment, a possible mine fire, and smoke inhalation (Tr. 87).
Citation No. 2127863
Mr. Dotson stated that he considered the failure to
adequately guard the No. 3 belt conveyor tail pulley to be an S&S
violation because the existing guard had been pulled away from
the frame, leaving an unguarded opening of approximately 8 by
12 inches through which someone could easily reach and contact
the moving tail pulley.
In addition, given the fact that the
belt tail piece is located at a place where the mine bottom dips
and a step was cut with a continuous miner, he believed that a
person could easily stumble while stepping down into the area and
come in contact with the moving belt.
He confirmed that belt
examiners and cleaners travel the area, and if they came into
contact with the moving belt they could sustain permanent
disabling injuries. Mr. Dotson confirmed that the belt is
normally shut down when any cleaning is done (Tr. 88-92).
Citation No. 2727864
Mr. Dotson stated that he considered the cited loose coal
accumulations located at the "off side" of the number 1 belt
conveyor to be S&S because they were packed around and against
the bottom of the belt and roller, and if these conditions were
allowed to continue the roller would have frozen and resulted in
the heating of the rollers due to the friction of the belt
rolling across them.
He believed that this condition could have
contributed to a mine fire exposing a belt examiner or belt
cleaner who is the area on a regular basis to a smoke inhalation
hazard (Tr. 93-95).
Mr. Dotson confirmed that the accumulations were not noted
in the belt examiner's book, but based on the appearance of the
coal packed around the roller and belt, he believed the
conditions had existed for "over a period of several shifts" (Tr.

1267

95) . Mr. Dotson described the accumulations as coal spillage
located at approximately five different locations along the belt
line, and that each accumulation was 6 feet long, 18 inches wide,
and 12 inches deep. He confirmed that the accumulations were not
rock dusted, and were "dark black" and combustible, and he
characterized the spillage as "just plain raw coal spills'' (Tr.
103). Although the belt was running when he observed the
conditions, he could not recall whether coal was being
transported on the belt (Tr. 100). He also confirmed that he
observed no stuck rollers, but stated that "it probably wouldn't
have been too long and it would have been frozen" (Tr. 97}.
The respondent's representative asserted that the third
shift is normally a maintenance shift, and that he was told by
people on the shift that rock dust bags were scattered in the
area and that they were in the process of cleaning the belt on
the production shift when beltmen were available. However, he
conceded that he was not present during the inspection, and that
"they do maintenance part of the shift and run coal part of the
shift" (Tr. 99-100} .
Citation No. 2727869
Mr. Dotson stated that he considered the cited loose broken
roof conditions to be S&S because there was evidence of roof
pressure and weight shifting just outby the pillar section. The
roof had broken down the center in the No. 6 entry and "dropped
down to a large crack" and mantrip vehicles and mine examiners
travelled the cited areas which included a designated escapeway.
Mr. Dotson described the roof as "sagging," and he found it very
likely that a roof fall would occur, and that in the event of a
massive fall, fatal injuries would result. He stated further
that adverse roof conditions were present in the areas inby the
locations which he had cited, and two roof falls had occurred in
other entries. He believed that roof weight shifting had
occurred after pillaring had begun more than a week earlier (Tr.
104-106) .
Mr. Dotson could not recall whether coal was being mined on
the day of the inspection, and although some work was being
performed in the cited areas, he did not believe that any work
was being done on the roof. He confirmed that miners would be
present in the cited areas at least once a day or more (Tr. 107).
On cross-examination, Mr. Dotson agreed that the sagging
roof conditions could have occurred after the section was
preshifted, and that the conditions did not obstruct travel
through the area. He stated that the cited roof locations
definitely needed additional support and that the respondent's
safety inspector who was with him during his inspection "agreed
whole heartedly with my opinion" (Tr. 108). Mr. Dotson confirmed

1268

that the area was dangered off and arrangements were made to have
the roof supported (Tr. 109).
Citation No. 2727870
Inspector Dotson confirmed that he considered this coal
accumulations violation to be S&S because "pure, black, dry,
loose coal" was accumulated and packed tight underneath the
bottom belt and appeared to have been there for several shifts.
He believed that the accumulations, which he described as ranging
from 36 inches wide, 18 inches deep, and 25 feet long, could
contribute to a source of heat in the event they froze and caused
friction between the belt and roller.
The accumulations were
located close to the belt drive which had a power source (Tr.
110).
In the event of a fire, seven miners on the section would
be exposed to a smoke inhalation hazard (Tr. 111-112).
On cross-examination, Mr. Dotson confirmed that he did not
check the belt conveyor drive for permissibility, and while water
sprays were installed on the belt head, he did not observe any of
them working at the time of the inspection, nor did he observe
any sprays on the belt (Tr. 113).
Based on the credible testimony of the inspector, I conclude
and find that the two equipment guarding citations (2724637,
2127863) were significant and substantial.
The guarding on the
cited belt conveyor head roller was loose and hanging away from
the area which should have been guarded, thereby exposing a pinch
point between the head roller and conveyor.
The guarding on the
cited No. 3 belt conveyor tail pulley had been pulled away from
the frame exposing an opening through which anyone could have
easily reached the moving belt pulley while the belt was running.
In both instances, the evidence establishes that miners would be
in the area of the unguarded equipment in the normal course of
their work shifts cleaning, or examining the belts, and in the
event of a stumble or other inadvertent contact with the exposed
pinch points, they would likely suffer injuries of a reasonably
serious nature.
Under the circumstances, the inspector's S&S
findings with respect to both citations ARE AFFIRMED.
With regard to the overhanging coal ribs and loose and
broken roof conditions (2727874, 2727869), I agree with the
inspector's S&S findings.
The inspector's unrebutted testimony
establishes that the mine had a rib sloughing problem, and
although most of the problems were at the face areas, two prior
rib rolls resulted in injuries to miners, and the overhanging
ribs in question were in a low area of the mine where miners
travelled.
The loose roof conditions were in an area of the mine
where the roof was taking pressure and sagging, and the inspector
observed one area where the roof had broken and cracked, and he
confirmed that roof falls had previously occurred in other areas
of the mine.
I conclude and find that the cited rib and roof

1269

conditions posed a discrete roof fall and rib roll hazard, and
that a potential accident hazard was present.
In the event of
any such occurrence, I conclude that it would be reasonably
likely that the miners working in those areas would likely suffer
fatal injuries or injuries of a reasonably serious nature. The
inspector's S&S findings with respect to both citations ARE
AFFIRMED.
With respect to the two citations for coal accumulations
along the belt conveyors (2727864, 2727870), the evidence
establishes that significant amounts of dry, loose, and black
coal dust was packed around and against the conveyor belts and
head rollers in areas where miners would normally be working
during the course of mining coal while the belts were in
operation. The inspector's unrebutted credible testimony
establishes that these coal accumulations, which one may
reasonably assume were combustible, posed a discrete fire hazard
in that any frozen or stuck rollers would provide a source of
heat and friction to ignite the coal and propagate a fire.
In
the likely event of a belt fire, the miners in the area would be
exposed to burn and smoke inhalation hazards of a reasonable
serious nature. Under the circumstances, the inspector's S&S
findings with regard to both citations ARE AFFIRMED.
I conclude and find that the cited damaged splice in the
12,000 volt transmission cable (2727873) was a significant and
substantial violation. The inspector's unrebutted credible
testimony reflects that the outer insulation of the cable was
damaged for a distance of approximately 2 feet and that the
interior ground wire, monitor wire, and metallic shields were all
exposed and posed an electrocution hazard. Although it was
unlikely that the cable would be run over by a mantrip or
contacted by anyone sitting in the mantrip, the inspector
confirmed that the damage occurred while the cable was advanced
and hung in the location where he observed it.
In the event the
cable were again moved and advanced, I believe that anyone doing
that work would likely be exposed to a serious shock and probable
electrocution hazard in the event he inadvertently handled the
cable, and that injuries of a reasonably serious nature would
result. Accordingly, the inspector's S&S finding IS AFFIRMED.
With regard to the ventilation citation concerning the
condition of the cited ventilation stoppings (2727872), I agree
with the inspector's S&S finding.
Although the inspector found
no excessive levels of methane present and found the air to be
sufficient, the fact remains that the condition of the stoppings,
some of which were crushed and contained holes and lacked
adequate sealing, posed a discrete air leakage hazard which in
time could have caused further deterioration resulting in the
likely short circuiting of the air ventilation and lack of air
separation in the intake and returns.
Further, the inspector's
unrebutted credible testimony reflects that in the event some of

1270

the cited stoppings had crushed out, ventilation would be
interrupted, and a possible buildup of methane would occur, and
would contribute to the loss of air at the working faces.
In
this event, miners working in the affected areas would be exposed
to the hazards associated with a loss of adequate air
ventilation, including smoke inhalation in the event of a belt
fire.
The inspector's S&S finding is therefore AFFIRMED.
With regard to the inadequate rock dusting citation
(2724242), I agree with the inspector's S&S finding.
The
evidence establishes that a significantly large area of the mine
was inadequately rock dusted, and notwithstanding the fact that
the inspector found adequate air and no explosive levels of
methane at the time of the inspection, the mine does liberate
excessive levels of methane at any given time, has had past
problems with methane, and was apparently being monitored and
spot checked for methane. The obvious intent of the cited safety
standard is to insure that the incombustible content of coal dust
is maintained at the required levels to preclude fires and
explosions. The inspector's credible testimony reflects the
presence of methane at levels which presented a potential
ignition and explosion hazard, and given the fact that potential
ignition sources were present while coal was being mined, and
miners were working in the affected areas, the presence of
inadequate rock dusting presented a discrete fire and explosion
hazard in the likely event of an ignition or interruption to the
ventilation while mining was being accomplished.
If this were to
occur, one can reasonably conclude that the miners working
underground would be exposed to the hazards associated with lack
of inadequate air, burns, and inadequate oxygen during any
attempts to exit the mine, and would sustain injuries of a
reasonable serious nature. Under the circumstances, the
inspector's S&S finding IS AFFIRMED.
With regard to the permissibility violation for the missing
flange joint on a continuous miner headlight (2727875), I cannot
conclude that this condition was a significant and substantial
violation. The inspector confirmed that no opening was present
in the flange and that it had not loosened to the point of
presenting an opening for methane to find its way into the
component. The inspector confirmed that the machine was equipped
with a methane detector device to automatically shut down the
machine, and I assume that it was operable and would have
deenergized the machine if high levels of methane were
encountered. Considering the lack of any significant levels of
methane at the face area, the presence of sufficient air at the
face, and the inspector's testimony that .2 and .5 percent of
methane will normally be present at the face with the amount of
air being used to ventilate the face, and the fact that several
variables would have to present any hazard, I cannot conclude
that the violation was significant and substantial. Accordingly,
the inspector's finding in this regard IS VACATED.

1271

With respect to the citation for the failure to conduct
practice escapeway drills (2727876), I conclude and find that the
evidence does not support a finding of a significant and
substantial violation. The inspector confirmed that in his
inspection experience other mines "generally" complied with the
escapeway drill requirements of section 75.1704-2(a), and that
experienced miners would have knowledge of the escapeways. In
the instant case, there is no evidence that any of the miners in
question were new miners or were inexperienced and did not know
where the escapeways were located. The evidence establishes that
escape maps were posted on each of the working sections, that
safety meetings are conducted at the mine, and that the required
fire boss examinations were being conducted on each of the
escapeways. Under the circumstances, I find no evidence to
support any conclusion of the presence of any discrete hazard
associated with the failure to conduct the drill in question~ and
the inspector's S&S finding IS VACATED.
Unwarrantable Failure Violation
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:
In light of the foregoing, we hold that an
inspector should find that a violation of any mandatory
standard was caused by an unwarrantable failure to
comply with such standard if he determines that the
operator involved has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of a lack
of due diligence, or because of indifference or lack of
reasonable care.
In several recent decisions concerning the interpretation
and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded
that it means "aggravated conduct, constituting more than
ordinary negligence, by a mine operator in relation to a
violation of the Act." Energy Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987); Secretary of Labor v. Rushton Mining Company,
10 FMSHRC 249 (March 1988). Referring to its prior holding in
the Emerv Mining case, the Commission stated as follows in
Youghiogheny & Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is conduct that
is "inadvertent," "thoughtless" or "inattentive,"
unwarrantable conduct is conduct that is described as

1272

"not justifiable" or "inexcusable." Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more that ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.
In Emerv Mining, the Commission explained the meaning of the
phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of the
phrase "unwarrantable failure." "Unwarrantable" is
defined as "not justifiable" or "inexcusable."
"Failure" is defined as "neglect of an assigned,
expected, or appropriate action." Webster's Third New
International Dictionary (Unabridged) 2514, 814 (1971)
("Webster's"). Comparatively, negligence is the
failure to use such care as a reasonably prudent and
careful person would use and is characterized by
"inadvertence," "thoughtlessness," and "inattention."
Black's Law Dictionary 930-31 (5th ed. 1979). Conduct
that is not justifiable and inexcusable is the result
of more than inadvertence, thoughtlessness, or
inattention. * * *
Inspector Dotson testified that he issued the section
104(d) (2) Order No. 2724637 on May 17, 1988, for the lack of
adequate belt conveyor guarding, because of "aggravated
circumstances" on the part of the respondent. He explained that
during prior inspections he had issued other guarding citations
pursuant to section 75.1722, and had discussed with mine
management the requirements for the proper installation of
guards. He confirmed that these prior citations were issued for
guards which did not extend for sufficient distances to comply
with the standard, and that he had spoken to the company safety
inspector, and the mine foreman, section foreman, and
superintendent (Tr. 27-28).
Mr. Dotson confirmed that there was nothing unusual about
the cited belt which was cited for inadequate guarding, and that
it had only been installed on the day prior to his inspection of
May 17, 1988. He also confirmed that the cited belt in question
was not the same belt that he had previously cited or discussed
for inadequate guarding, and although the cited belt had a guard
installed, it was hanging loose and was not securely bolted to
the belt structure. Even if the guard had been tightly secured,
he did not believe that it was of sufficient size to prevent a
person from reaching behind the guard and contacting the pinch
point between the belt or the roller. Abatement was achieved by
installing additional guards rather than extending the existing
guards (Tr. 28-32).

1273

Exhibit P-4(a) consists of three prior guarding citations
issued by Mr. Dotson on February 1, 19, and 25, 1988. One of the
citations is for inadequate guarding on the head and drive
rollers of a belt conveyor (75.1722(b), one is for inadequate
guarding on a take-up roller of a conveyor belt (75.1722(a), and
one is for missing guards on the cutting head drive shaft and
coupling on a continuous-mining machine (75.1722(a)). All of
these citations were section 104(a) citations, and in each
instance Mr. Dotson made findings of "moderate negligence."
Exhibit P-13 is a copy of the guarding citation issued by
Mr. Dotson on May 24, 1988, a week after he issued the
unwarrantable failure order, and it was issued because the guard
provided for the tail pulley of a belt conveyor was loose and
pulled open exposing the pinch point which "could easily be
contacted by persons." In this instance, Mr. Dotson again made a
negligence finding of "moderate negligence." Given the theory
and rationale for his unwarrantable failure finding with respect
to the contested order, I find these moderate negligence findings
for essentially the same kind of conditions to be contradictory
and inconsistent.
The contested order charges the respondent with a violation
of the equipment guarding requirements of section 75.1722(b),
which provides as follows:
(b)
Guards at conveyor-drive, conveyor-head, and
conveyor-tail pulleys shall extend a distance
sufficient to prevent a person from reaching behind the
guard and becoming caught between the belt and the
pulley.
The regulatory language found in the standard in question
provides no guidance as to what may be considered a "sufficient
distance" for the extension of guards to prevent persons from
contacting a potential pinch point. What may be sufficient for
one inspector may not be sufficient for another, and Inspector
Dotson agreed that these differences of opinion can possibly
occur.
In fact, most of the litigation resulting from
applications and interpretations of this particular standard
attests to the fact that reasonable persons can differ as to the
meaning of the term "sufficient distance" in the context of
equipment guarding, and each case must necessarily be considered
on its own facts.
I reject any notion that simply because a mine operator has
been previously cited with a guarding standard in the past, he
may be considered per se guilty of "aggravated conduct" for any
repeat citations.
Further, I find no credible evidence here that
the inspector previously instructed the respondent as to any
particular or specific way for providing guards for its
equipment.
Although the cited standard addresses guards which

1274

have already been installed on the equipment, two of the prior
violations were abated by the installation of additional guards,
rather than extending the existing ones, and one citation
concerned a violation of subsection (a) of section 75.1722,
rather than subsection (b), and it concerned a guard which was
missing from the cutting head of a continuous-mining machine
rather than a belt conveyor.
In view of the foregoing, I find no credible evidence to
support the inspector's opinion that the violation in question
resulted from "aggravated circumstances." The evidence
establishes that in all of these instances of inadequate
equipment guarding, with the exception of the missing guard on
the mining machine, guards were in fact provided, but were
inadequate in the judgment of the inspector. Under the
circumstances, the inspector's unwarrantable failure finding IS
REJECTED AND VACATED, and the contested order is modified to a
section 104(a) citation, with S&S findings.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Remain in Business
The parties agreed that the respondent is a small mine
operator, and the respondent's representative stated that at the
time of the inspections the mine employed 90 to 100 miners, and
that the annual coal production for the mine was approximately
351,422 tons (Tr. 117-118).
I conclude and find that the
respondent is a small mine operator.
The respondent's representative stated that the Smoot Coal
Company is no longer in operation and has ceased to exist (Tr.
117). He confirmed that the company went out of business
sometime in August 1988, has no assets and owns none of the mine
equipment, and that another contractor has taken over the mine
and the mine permit has been changed to the new company (Tr.
119). He explained that the Spring Ridge Coal Company owned the
mine property and hired several contractors to mine the coal, and
that the respondent Smoot Coal Company was one of the contractors
mining the coal.
He confirmed that Spring Ridge still owns the
mine assets, including the equipment, and still controls the mine
leases, and that Smoot Coal has no employees and does not mine
any of the coal.
However, he confirmed that Smoot Coal is still
in existence as a corporation, but that its attorneys are taking
steps to revoke its corporate charter in the State of
West Virginia (Tr. 120-122).
The petitioner takes the position that the fact that Smoot
Coal Company is no longer active in business, is irrelevant and
that MSHA can seek payment of any civil penalty assessments for
the violations in question in these proceedings from the
corporate successor (Tr. 120). The respondent confirmed that at
the time the violations were issued, Smoot Coal Company was in

1275

fact mining the coal as a contractor, and that no other
contractors were engaged in the mining of the coal at that time
(Tr. 122).
MSHA Suoervisorv Inspector Francis Nutter testified that "I
have spent a considerable amount of time in the mine in view of
the paperwork." He stated that Smoot Coal Company had previously
leased the mine to another contractor, the D.C. & M Coal Company,
and that during the operation of the mine by this contractor MSHA
issued an imminent danger order at the mine "for ventilation and
methane accumulations," and D.C. & M then went out of business.
Smoot Coal then filed to have the mine legal identity changed
back to Smoot Coal so that it could continue working to abate the
conditions which resulted in the imminent danger closure order.
Mr. Nutter stated that the respondent's representative,
Mr. Carpenter, served as the chief engineer and "probably the
superintendent" for Smoot Coal, and also submitted some
engineering maps for D.C. and M, and that some of the supervisors
and employees remained in the employ of Smoot Coal (Tr. 122-125).
Mr. Nutter confirmed that at the time the violations were
issued, Smoot Coal Company operated the mine. He had no
knowledge that Smoot Coal was no longer in business and that
MSHA's current legal identity number still reflects that Smoot
coal is the operator of the mine, and that Smoot Coal filed the
necessary MSHA paperwork to reflect its operation of the mine in
order to correct the conditions resulting in the closure order
(Tr. 127-128).
Respondent's representative Carpenter confirmed that the
mine is still in the legal name of Smoot Coal Company, and that
Smoot Coal took the mine back from D.C. and M Coal Company, but
that Smoot has no employees and "is financially broke" (Tr.
130-131). He asserted that Spring Ridge Coal still controls all
of the mine assets, and stated that Smoot Coal assumed the
operation of the mine "just to protect the mine, from shutting
the mine down, keep the mine open at the present" (Tr. 132). He
further confirmed that while coal is not being mined at the
present time, the mine is still "active" and has not been sealed
or abandoned, but that in order to resume mining, Smoot Coal
would have to abate the MSHA closure order (Tr. 132).
After careful consideration of all of the testimony and
available evidence with respect to the status of the respondent
Smoot Coal Company, I find no credible or probative information
or evidence to establish that the payment of the civil penalty
assessments for the violations in question in these proceedings
will adversely affect the respondent's ability to continue in
business. The record establishes that the respondent is the
legal operator of the mine, that it is still a viable corporate
entity, and that the mine is still an active mine.
Further, the
record is clear that all of the violations occurred at a time

1276

when Smoot Coal Company was operating the mine, and that the only
impediment to its continued operation of the mine is the
outstanding closure order which apparently has not been abated or
lifted.
History of Prior Violations
Exhibit P-21, is a summary of the respondent's assessed
violations history for 1987 and 1988, and it reflects that the
respondent received 111 violations, excluding timely paid
"single-penalty'' assessments, over a period of 197 inspection
days.
Exhibit P-22, is an MSHA computer print-out reflecting
that the respondent paid $20,089, in civil penalty assessments
for 163 violations, 151 of which are S&S violations during the
period July 27, 1987 through June 8, 1988.
This history includes
25 prior violations of mandatory safety standard section 75.400
(coal accumulations), 15 violations of section 75.503
(permissible face equipment), and 14 violations of section 75.316
(ventilation and methane) .
For an operation of its size, I
conclude and find that the respondent has an average to less than
average history of prior compliance, particularly with respect to
the permissibility, ventilation, coal accumulations standards.
Good Faith Compliance
The parties agreed that all of the violations were timely
abated by the respondent in good faith, and I conclude and find
that this is the case, and I have taken this into consideration
in the civil penalty assessments which have been made for the
violations in question.
Gravity
In light of my s&s·findings and conclusions, and on the
basis of the inspector's credible testimony with respect to the
hazards connected with each of the violations, I conclude and
find that they were all serious.
Negligence
With regard to Citation No. 2727875, the inspector found a
low degree of negligence on the part of the respondent, and the
parties stipulated that this was the case (Tr. 70).
With regard
to nine additional violations, the inspector found that they were
the result of moderate negligence (Tr. 17-21, 44, 52-53, 58, 62,
79, 89-90, 95-97, 106, 111).
I adopt these findings as my
findings on this issue, and I conclude and find that the 10
violations in question were the result of the respondent's
failure to exercise reasonable care, and that they all constitute
ordinary negligence by the respondent.

1277

With regard to the modified section 104(a) Citation
No. 2724633, and in light of my rejection of the inspector's
unwarrantable failure finding, I conclude and find that this
violation also resulted from the respondent's failure to take
reasonable care, and that this constitutes ordinary negligence.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section llO(i) of the
Act, I conclude and find that the following civil penalty
assessments for the violations which have been affirmed are
reasonable and appropriate in the circumstances of these
proceedings:
Docket No. WEVA 88-328
citation No.
2724242
2724637
2727872
2727873
2727874
2727875
2727876

04/06/88
05/17/88
06/06/88
06/08/88
06/18/88
06/08/88
06/08/88

30 C.F.R. Section

Assessment

75.403
75.1722(b)
75.316
75.517
75.2ll(c)
75.503
75.1704-2(e)

$200
$175
$150
$150
$105
$ 30
$ 35

30 C.F.R. Section

Assessment

Docket No. WEVA 88-329
Citation No.
2127863
2727864
2727869
2727870

05/24/88
05/24/88
05/27/88
06/06/88

75.1722(b)
75.400
75.211(c)
75.400

$125
$105
$168
$168

ORDER
The respondent IS ORDERED to pay civil penalty assessments
in the amounts shown above within thirty (30) days of the date of
these decisions, and upon receipt of payment by the petitioner,
these proceedings are dismissed .
.,, /
-/,··..--·~~~-· .: . ,,,.rf...,

___ .. --·
.....-~

,. ".·

·~--~·t'"':,.~~

.:... _"(.._,,.._:

./ George· A. :Koutras
Administrative Law Judge

1278

Distribution:
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 516, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Mr. Mike Carpenter, Smoot Coal Company, Inc., P.O. Box 1400,
Webster Springs, WV 26288 (Certified Mail)
/fb

1279

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

JUL 13 1989
CONTEST PROCEEDINGS

BIG HORN CALCIUM COMPANY,
Contestant

Docket No. WEST 88-67-RM
Citation No. 3065941; 12/5/87

v.

Docket No. WEST 88-68-RM
Citation No. 3065942; 12/5/87

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

Docket No. WEST 88-69-RM
Citation No. 2648962; 12/9/87
Docket No. WEST 88-70-RM
Citation No. 2648963; 12/9/87
Docket No. WEST 88-71-RM
Citation No. 2648964; 12/10/87
Docket No. WEST 88-72-RM
Citation No. 2648965; 12/10/87
Docket No. WEST 88-73-RM
Citation No. 2648966; 12/10/87
Docket No. WEST 88-74-RM
Citation No. 2648967; 12/10/87
Docket No. WEST 88-75-RM
Citation No. 2648968; 12/10/87
Docket No. WEST 88-76-RM
Citation No. 2648970; 12/10/87
Docket No. WEST 88-78-RM
Citation No. 2648971; 12/10/87

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

.

Warren Quarry & Mill
Mine ID No. 24-00006
CIVIL PENALTY PROCEEDINGS
Docket No. WEST 88-203-M
A.C. No. 24-00006-05513

v.

Docket No. WEST 88-204-M
A.C. No. 24-00006-05514

BIG HORN CALCIUM COMPANY,
Respondent

Docket No. WEST 88-205-M
A.C. No. 24-00006-05515
(And Related Contest Dockets)

..
128Q

Warren Quarry & Mill

DECISION APPROVING SETTLEMENT
Before:

Judge Lasher

Upon motion for approval of a proposed settlement of the 22
alleged violations in these 3 dockets and the same appearing
proper and in the full amount of the initial assessments for 21
of the 22 alleged violations, the settlement is approved.
As reflected in the caption, this matter resolves a total of
11 contest dockets and 3 related penalty dockets.
The three
related penalty dockets involve a total of 22 enforcement
documents (Citations and Orders). The settlement disposes
completely of these 22 proposed penalty assessment as well as an
additional Citation which is the subject of Contest Docket No.
WEST 88-75-RM but which was not, apparently due to administrative
oversight, made the subject of a proposal for penalty, all of
which is reflected below. Big Horn Calcium Company, upon
approval of this settlement, agrees to withdraw its contest
proceedings herein.
1.

Docket No. WEST 88-203-M
Citation No.
2645747
2645748
2645749
2645750
2645753
2645754
2645755
2645756
2645757
2645763
2645764
2645765
2645766
2645767

Proposed
Penalty
$ 20.00
20.00
20.00
68.00
68.00
20.00
20.00
20.00
20.00
20.00
20.00
20.00
20.00
20.00

Related Contest
Proceeding

( 88-70-RM)
(88-71-RM)
(88-72-RM)
(88-73-RM)
(88-74-RM)

Big Horn Calcium Company agrees to pay the above penalties
and such are here assessed.
2.

Docket No. WEST 88-204-M
Citation No.
3065941
Order No.
3065942
Citation No.
2648962

Proposed
Penalty
$1,000.00

. Related Contest
Proceeding
(88-67-RM)

$1,000.00

(88-68-RM)

300.00

(88-69-RM)

1281

Ca) Pursuant to the agreement reached, Citation No. 3065941
is modified from Section 104(d)(l) to Section 104(a) since
pretrial preparation disclosed that the violation was not the
result of an unwarrantable failure on the part of the mine
operator. Likewise, the negligence showing on the Citation is
reduced from "reckless disregard" to "high".
The proposed
penalty of $1,000.00 and the designation of the violation as
significant and substantial shall remain unchanged.
Cb> Order No. 3065942 is also modified from Section
104(d)(l) to Section 104(a). Again, pretrial preparation
disclosed that the violation was not the result of an unwarrantable failure on the part of the operator and, accordingly,
the negligence shall also, as agreed, be reduced from "reckless
disregard" to "high".
The proposed penalty of $1,000.00 and the
designation of the violation as significant and substantial shall
remain unchanged.
(c) Citation No. 2648962 and its $300 proposed penalty shall
remain unchanged.
(d) Big Horn Calcium Company agrees to withdraw its contest
to the citations and order as amended herein and to pay the
penalties above reflected.
such are here assessed.
3.

Docket No. WEST 88-205-M

Proposed
Related Contest
Penalty
Proceeding
Citation No.
2645752
$20.00
2645758
20.00
2645759
20.00
2648970 (Vacated) (20.00>CWithdrawn) (88-76-RM)
( 88-78-RM)
2648971
20.00
(a) The Secretary having moved to vacate Citation No.
2648970 and to withdraw her proposed penalty therefor on the
basis of insufficient evidence, such motion is approved and
Citation No. 2648970 is VACATED.
Cb) Big Horn Calcium Company agrees to withdraw its contest
to the other four (4) citations in Docket No. WEST 88-205-M and
to pay the above penalties which are here assessed.
4.

Docket No. WEST 88-75-RM

A civil penalty proceeding was never• filed by MSHA with
respect to this Citation (No. 2648968). While a civil penalty
has not been proposed, the parties agree that a $20.00 penalty is

1282

appropriate.
This agreement is approved as part of this overall
settlement. Big Horn Calcium Company agrees to withdraw its
contest to Citation No. 2648968 and to pay the agreed penalty
which is here assessed.
In consenting to this settlement agreement, the parties have
agreed Cl) that nothing therein shall be deemed an admission by
Big Horn Calcium Company of a violation of the Federal Mine
Safety and Health Act, or regulation or standard thereof, in any
judicial or administration forum other than an action brought by
the United States Government under the Federal Mine Safety and
Health Act, and (2) that by entering this settlement agreement,
Big Horn Calcium Company does not admit to a violation of the
Federal Mine Safety and Health Act, or regulation or standard
thereof, for the purpose of any- judicial or administrative
proceeding which directly or indirectly concerns the civil or
criminal liability of any or all directors, officers and agents
of Big Horn Calcium Company regarding the subject matter,
allegations and issues related to Citation No. 3065941 and Order
No. 3069542 [Docket No. WEST 88-204-M].
In the premises, the amicable resolution reached by the
parties appears appropriate and is approved with the parties to
bear their own fees and expenses.
ORDER
1. Citation No. 2648970 is VACATED.
2. Citation No. 3065941 and Order No. 3065942 are MODIFIED
as specified hereinabove.
3. The 11 Contest proceedings listed in the Caption are,
based on this approval of settlement, DISMISSED.
4. Big Horn Calcium Company, if it has not previously done
so, is ordered to pay to the Secretary of Labor within 30 days
from the date hereof the sum of $2,776.00 as and for the civil
penalties hereinabove assessed.

tp;;dr./-·ff ~~~~ ;r~
Michael A. Lasher, Jr.
Administrative Law Judge
Distribution:
James J. Gonzales, Esq., and Jeffrey T. Johnson, Esq., Holland &
Hart, 555 Seventeenth Street, Suite 2900, P.O. Box 8749, Denver,
CO 80201 (Certified Mail)
Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 St~ut Street, Denver, CO
80294 (Certified Mail)
1283

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

IJ
J l'Ji j .J') ~r•gg
1...

•

SECRE'rARY OF LABOR
MINE SAFETY AND HEALTH
ADMINIS'rRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket ~o. WEVA 88-311
A.C. No. 46-06898-03538

v.
No. 1 Mine
DAVIDSON MINING, INC.,
Respondent
DECISION
Appearances:

Before:

Page H. Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
William D. Stover, Esq., M.A.E. Services, Inc.,
Beckley, West Virginia, for Respondent.

Judge Maurer

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
~.,the "Act", for alleged violations of regulatory standards.
The general issues before me are whether Davidson Mining, Inc.
has violated the cited regulatory standards and, if so, what is
the appropriate civil penalty to be assessed in accordance with
section llO(i) of the Act.
Prior to the commencement of testimony at the hearing, the
parties advised me that they had a proposed settlement of three
of the four citations at issue. Citation Nos. 9959649, 9959659
and 9959660 were each assessed at $227 for violations of 30 C.F.R.
§ 70.101 and Davidson has agreed to pay the full assessed amount
of $227 each in settlement of that portion of this case. I
approved that settlement from the bench, and confirm it herein.
The remaining section 104(a) citation; Citation No. 2904279
alleges a violation of 30 C.F.R. § 75.200, and proposes to assess
a civil penalty of $168.
The respondent's portion of the case was heard in
Huntington, West Virginia, on February 7, 1989. The Secretary's
case was submitted by documentary evidence and the affidavit of
Inspector James E. Davis, which was filed on April 3, 1989.

1284

Citation No. 2904279 alleges a "significant and substantial"
violation of the roof control standard and alleges in particular
as follows:
The investigation of a non-fatal fall of roof material
accident that occurred on 3/3/88, at approximately
1:30 p.m., in the last open crosscut of the No. 5 entry
intersection, on the No. 008-0 unit, revealed that the
roof was inadequately supported, in that a piece of
roof measuring approximately 90 inches in width,
87 inches in length and 0 to 3 inches in thickness fell
around and between three roof bolts, struck a miner,
resulting in serious injuries, the injured miner
becoming hospitalized and disabled for an extended
period of time.
On March 3, 1988, a serious, non-fatal roof fall accident
occurred in the intersection of the last open crosscut in the
~o. 5 entry on the Jim Hazel Mains supersection (008-0) of the
No. 1 Mine. David McKinney, a roof bolter, was seriously injured
when he was struck by a large rock which fell around and between
three roof bolts. The rock measured approximately 90 inches in
width, 87 inches in length and up to 3 inches in thickness.
MSHA Inspectors Dooley and Davis investigated this accident
and Davis authored the Report of Investigation which was received
into evidence as Government Exhibit No. 2.
During his
investigation, Inspector Davis encountered drummy roof conditions
indicative of a separation in the overlying strata of the roof in
several areas outby the accident scene. These conditions were
detected in areas where the continuous miner had left draw rock
on the roof as the coal was mined. At the accident s6ene, Davis
found additional areas of drummy roof in the vicinity of the
prior roof fall, but in his opinion, these areas all seemed to be
adequately supported. He also took a look at the three roof
bolts that had been present when the roof fell between and around
them and was satisfied that there was no evidence that these roof
bolts had been damaged or improperly installed.
While standing in the area where the roof fall had occurred,
he heard a noise from an outby area which sounded like rock
falling.
He asked what that noise was and someone responded that
that noise was the roof falling around and between roof supports
and that such falls were not unusual on the section. He does not
know the identity of the person who made the statement, but
everyone in the group present heard it and no one, including
management personnel present disagreed with it.

1285

Inspector Davis stated that the section was being developed
in accordance with the approved roof control plan then in effect.
The company was using 4 foot fully grouted resin bolts and 6 by
16 inch bearing plates. These measures exceeded the minimum
requirements of the roof control plan. The roof supports were
being installed on spacings of 4 to 5 feet along the length of
the entries and 4 foot spacings across the width of the entries.
In the immediate area of the roof fall, the bolts were installed
on spacings that varied from 3 feet 1 inch to 4 feet 11 inches.
The investigation, in Inspector Davis' opinion, did not disclose
any violations of the roof control plan, nor is the operator
being charged with any violation of the roof control plan.
Several witnesses were interviewed by the two inspectors and
they stated that in this mine it was not uncommon to have the
roof fall between and around the roof bolts as it did in this
case.
Inspector Davis, while acknowledging that the operator has
made some efforts above and beyond the requirements of the roof
control plan, still felt that management was aware of the hazard
created by leaving areas of uneven draw rock in the roof that can
and do separate from the main roof and which often ultimately
results in draw rock falling out between the bolt patterns, as it
did in the instant case. The inspector further opined that since
management was aware of this fact, it was incumbent on them to
take additional measures necessary to adequately support the roof.
He suggested straps be installed to adequately support the areas
between the roof supports which.are not directly supported by the
bearing plates.
In a nutshell, he wrote the citation at bar
because he believed the roof was inadequately supported and
commonly fell out between the roof supports installed by the
operator.
At the hearing, witnesses called by Davidson confirmed that
draw rock commonly fell between and around the roof bolts.
Mr. Vance testified that draw rock as large as the rock in the
instant case had been known to fall out prior to the accident.
David McKinney, the injured miner, stated that he had observed
draw rock fall out between and around the roof bolts as well.
In
response to a question as to whether or not it was an unusual
occurrence, McKinney responded "[n]o, sir.
It happens.
~ot
often, but it has happened".
The fact that Davidson did not violate its roof control plan
is not controlling for purposes of determining the existence of
the violation at issue. Section 75.200 requires both compliance
with a roof control plan approved by the Secretary and that the
roof be supported or otherwise controlled adequately.
An

1286

operator's failure to comply with either requirement violates the
standard.
Here, the violation of section 75.200 is predicated upon the
standard's requirement that the roof and ribs be supported or
otherwise controlled adequately. Liability under this part of
the standard is resolved by reference to whether a reasonably
prudent person, familiar with the mining industry and the
protective purpose of the standard, would have recognized that
the roof or ribs were not adequately supported or otherwise
controlled. Specifically, the adequacy of particular roof
support must be measured against what the reasonably prudent
person would have provided in order to afford the protection
intended by the standard. Quinland Coals, Inc., 9 FMSHRC 1614,
1617-18 (September 1987); Canon Coal Co., 9 FMSHRC 667, 668
(Apr i 1 1 9 8 7 ) •
The respondent urges that the roof in the immediate accident
area gave no warning nor had any physical appearance of being
unstable prior to the accident. The section foreman had made a
visual inspection of the section before starting work at the
beginning of the shift and had made periodic examinations of the
mine roof during the shift, including using the sound and
vibration method to check for drummy roof.
Despite these
efforts, the unstable roof in the immediate area of the roof fall
was unfortunately not detected.
I agree with respondent that there has been no showing that
there were any objective signs that this particular piece of rock
was going to fall out of the roof when it did. However, the
evidence of record clearly demonstrates that draw rock commonly
fell between and around the roof support being routinely used by
Davidson in this mine and on this section, and that is sufficient
in my opinion to prove up the violation.
Inspector Davis has been an MSHA Coal Mine Inspector since
May of 1971 and prior to that had an additional 18 years of coal
mining experience. Therefore, I credit his knowledge of standard
mining practice a great deal.
He based his decision to cite the
respondent on what he personally observed in the mine during the
accident investigation process and the statements of the miner
witnesses who related the relevant history of what had been going
on with the mine roof.
Accordingly, I conclude that the roof support in the area
cited was inadequate to prevent draw rock, of sufficient size to
injure a miner, from falling out of the roof.
~dditionally, I
find that the Commission's "reasonably prudent person" would
have, by the time of the accident involving Mr. McKinney,
recognized that something more in the way of roof support was

1287

needed to prevent the continuing falls of draw rock between and
around the existing roof support, and p~ovided it. Citation
No. 2904279 is therefore affirmed.
Finally, it is undisputed that the injuries that
Mr. McKinney sustained in the roof fall in March of 1988 have
continued to prevent his returning to work at least through the
date of the hearing. Therefore, I believe it can be inferred
from the circumstances that the violation was serious and
"significant and substantial". Secretary v. Mathies Coal
Company, 6 FMSHRC 1 (1984).
In view of the foregoing findings and conclusions, and
taking into account the requirements of section llOCi) of the
Act, I conclude that a civil penalty assessment in the amount of
$168, as proposed, is reasonable for the violation which has been
found herein.
ORDER
Davidson Mining, Incorporated is directed to pay civil
penalties of $849 within 30 days of the date of this decision.

Distribution:
Page H. Jackson, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
William D. Stover, Esq., M.A.E. Services, Inc., 41 Eagles Road,
Beckley, WV 25801
(Certified Mail)
/ml

1288

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

22041

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

.

CIVIL PENALTY PROCEEDING

.

Docket No. KENT 89-27-M
A. C. No. 15-15676-05511

Docket No. KENT 89-26-M
A. C. No. 15-15676-05510

v.
MOUNTAIN PARKWAY S'rONE,
INCORPORATED
Respondent

Staton Mine
DECISION

Appearances:

Michael L. Roden, Office of the Solicitor, u. s.
Department of Labor, Nashville, Tennessee, for
the Secretary;
Jeffrey T. Staton, Vice President, Mountain Parkway
Stone, Incorporated, Stanton, Kentucky, for
Respondent.

Befor.e:

Judge Weisberger

Statement of the Case
In the above captioned cases, the Secretary (Petitioner)
seeks Civil Penalties for alleged violations by the Operator
(Respondent) of various-safety standards set forth in Volume 30
of the Code of Federal Regulations. Pursuant to notice, these
cases ~ere heard in Lexington, Kentucky, on May 16 - 17, 1989.
Ecic Shanholtz and Vernon Denton testified for Petitioner, and
Charles Williams, Teddy Combs, Vernon Denton, and Jeffrey T.
Staton testified for Respondent. Both Parties waved their right
to present closing oral arguments or to submit Post-hearing
Briefs and Proposed Findings of Fact.
Stipulations
The following stipulations were agreed to by both Parties:
1. Mountain Parkway Stone, Incorporated, is a Kentucky
corporation which produces limestone for rasale in interstate
commerce and thus is subject to the jurisdiction of the Federal
Mine Safety and Health Review Commission and its administrative
law judges.

1289

2. As of June 1988, Mountain Parkway Stone, Incorporated
produced approximately 172 tons of limestone per day (45,000
annually) at its sole underground mine site, the Staton Mine in
Powell County, Kentucky, and employed six full time employees in
June 1988. At the date of the Hearing Respondent had five
employees.
3. J. T. Staton is, and was in June through August 1988,
the President of Mountain Parkway Stone, Incorporated, and the
supervisor of the Staton Mine.
Findings of Fact and Discussion
Docket No. KENT 89-26-M.
Citation No. 3253127.
Eric Shanholtz, an MSHA Inspector, essentially testified
that on June 16, 1988, when he inspected Respondent's mine, he
measured the level of noise while standing below the level of the
bin and to the front of Respondent's primary crusher. He said
that he measured the noise for 2 and 1/2 hours until the crusher
broke down. He indicated that there was an over exposure of 135
percent to the employee in the control booth. He issued a section
104(a) Citation asserting a violation of 30 C.F.R. § 57.5050(b).
30 C.F.R. § 57.5050(a) as pertinent, provides that noise
level measurements "shall" be made using a meter " • • • meeting
specifications for Type 2 Meters contained in American National
Standards Institute (ANSI) Standard Sl.4-1971 general purpose
sound level meters." The record does not contain any evidence as
to the type of meter, if any, used by Shanholtz •. Further, section
57.5050, supra, sets forth various permissible dBA levels relating
to duration per day of hours of exposure. Aside from the conclusional statement of Shanholtz that the levels resulted in an over
exposure of 135 percent, the record does not contain any evidence
of any dBA level.
Also, section 57.5050Cb), supra, provides, in essence, that
if there is a noise level exposure which has not been reduced by
administrative or engineering controls, " • • • ~ 0 rsonal protection equipment shall be provided and used to reduce sound level
to within the levels of this table. According to Shanholtz, the
primary crusher operator was wearing ear plugs, but would still
be subject to a permanent disability. There is no evidence that
the ear plugs did not reduce the sound levels for the wearer,
within the levels set forth in subsection a, supra.

1290

Accordingly, it is concluded that the evidence fails to
establish that the Respondent herein violated section 57.5050,
supra. Accordingly, Citation 3253127 shall be dismissed. In
light of this Decision, it is further concluded that the subsequently issued Citation No. 2861249, alleging a violation of
section 104(b) of the Act, was improperly issued and shall be
dismissed.
Citation 3253323.
Shanholtz testified that on July 20, 1988, he was told by
some of Respondent's employees that an employee had been off from
work with a pulled muscle in his back, which had been sustained on
the mine property on June 27. Shanholtz indicated that Staton told
him that Respondent did not have any MSHA Accident Report Forms,
and these were subsequently provided to him by Shanholtz. Shanholtz
further indicated that the accident was not reported to MSHA on
its forms although the accident was reported in Respondent's
records. A Citation was issued alleging a violation of 30 C.F.R.
§ 50.20.
Section 50.20, supra, provides, in essence, that an operator
shall maintain a supply of MSHA Mine Accident Report Forms, and
shall report accidents on such forms to be submitted to MSHA.
Inasmuch as the uncontroverted evidence indicates that at the
time of the accident in question, Respondent did not have any of
the proper MSHA Forms, and did not report this accident to MSHA
on its forms, a violation of section 50.20 has occurred as
alleged. Taking into account the fact that this accident was
recorded by Respondent in its records, and there was no evidence
that this accident was caused by Respondent's negligence or caused
by any instrument, property or condition under its control, it is
concluded that a penalty herein of $20 is appropriate.
Citation 3253324.
Shanholtz testified that on July 21, 1988, he observed one
of Respondent's employees lying under an axle of a dump truck
with his shoulder on the ground, using a sledge hammer to knock
tires off the vehicle. He indicated that the axle and the truck
were above the employee and that the truck was "suspended" by a
front-end loader bucket (Tr. 160). He said that the supporting
unit was being used beyond its capacity, as its hydraulic system
was less than adequate for what it was being used. Accordingly,
Shanholtz issued a citation under sections 107(a) and 104(a) of
the Act alleging a violation of 40 C.F.R. § 57.16009.
Section 57.16009, supra, provides that "Persons shall stay
clear of suspended loads."
(Emphasis added.) Weoster'3 New
Collegiate Dictionary (1979 edition) defines suspend, as pertinent, as " • • • a: HANG; esp: to hang so as to be free on all
sides except at the point of support
. b: to keep from falling
or sinKing by some invisible support . . •
" Although Shanholtz

1291

testified that the truck, under which the employee was observed
working, was "suspended" by a front-end loader bucket, (Tr. 160),
there is no evidence that the truck, under which the employee was
working, was in any way hanging from or free on all sides except
for a point of support. It appears from Shanholtz' testimony that
the truck was raised off the ground by the front-end loader bucket,
but there was not any evidence that it was hanging free from the
bucket except for the point of support. Accordingly, it is concluded that there was no violation herein of section 57.16009,
supra, and the Citation must be dismissed.
Citation No. 2861250.
In essence, Shanholtz testified that on August 17, 1988, he
observed Respondent's haulage road which he indicated as being
approximately half a mile long, and at a 12 degree slope. He
indicated that the outer edge of the roadway was exposed. He
said that some of the berm had deteriorated "over a period of
time" and that "the berms in this area probably washed away and
weathered" (Tr. 481).
(sic.) He issued a section 104(a) Citation
alleging a violation of 30 C.F.R § 57.9022.
Section 57.9022 provides that "Berms or guards shall be provided on the outer bank of elevated roadways." On cross-exami~
nation Shanholtz revealed that he had not measured the berm, and
that only some areas did not have a berm. According to 30 C.F.R.
§ 57.2 a berm is defined as " • • • a pile or mound 0£ material
capable of restraining a vehicle." The record does not contain
any evidence of the type of berm in question, or its detailed
description. Nor is there in the record any measurement of the
areas of the roadway that allegedly did not have a berm. Thus,
it is concluded that it has not been establiBhed by the weight or
the evidence that the roadway did not have a berm capable of
restraining a vehicle. Accordingly, it is concluded that it has
not been established that Respondent herein violated section
57.9022, and accordingly, Citation 2861250 must be dismissed.
Docket No. KENT 89-27-M.
Citation No. 3253179.
Shanholtz testified, in essence, that on June 16, 1988, he
observed smoke and exhaust fumes coming out of the portal of
Respondent's mine. He said that he went approximately 600 to 700
feet underground using a drager pump and a sorbet tube. He said
that the testing device has a scale which can be read, and the
results indicated "extreme high" levels of nitric oxide and nitrogen dioxide, and "high" levels of carbon monoxide (Tr 33). He
said that the nitrogen dioxide was an extremely dangerous contaminant, and blackened the tubes so that it could not be measured.
He indicated that nitrogen oxide has a threshold level of 25
parts per million, and carbon monoxide has a threshold level of
50 parts per million. He indicated that nitrogen dioxide has a

1292

ceiling level of 5 parts per million. Shanholtz issued a section
107(a} Withdrawal Order and a 104(a} Citation alleging a violation of 30 C.F.R. § 57.500l(a}.
Section 57.5001, supra, in essence, provides that exposure
to airborne contaminants shall not exceed" • • • on the basis of a time weighted average, the threshold limit values adopted by
the American Conference of Governmental Industrial Hygienists and
contained in the 1973 edition of its publication entitled 'TLV'S
Threshold Limit Values for Chemical Substances in Workroom Air
Adopted by AGGIH for 1973,' • • •
" Shanholtz indicated that
the "contaminants" blackened the tube and could not be measured
(Tr. 35). However, he offered no explanation as to the manner in
which the testing device operated. Thus, I do not have any
evidentiary basis to evaluate the observation that the tube was
blackened. Similarly, Shanholtz' comments that the contaminants
could not be measured in the tube was not explained, and hence I
can not evaluate its significance. Further, the best evidence,
of threshold limit values for various substances, as required by
section 75.5001, supra, is the publication of the American
Conference of Governmental Industrial Hygienists, referred to
above. Neither that publication, nor any part thereof, was
offered in evidence. Nor did Shanholtz make reference to that
publication as the basis for his testimony as to various threshold values. Further, there is no evidence in the record that
any contaminants in question exceed any threshold values " . . • on
the basis of a time weighted average."
(Section 57.5001, supra.}
Indeed, no evidence was presented as to any time weighted average.
Thus, I conclude that the Petitioner has not adduced sufficient
evidence to establish that the Respondent herein violated section
57.5001, supra. Accordingly, Citation No. 3253179 is dismissed.
Citation No. 3253131.
Shanholtz indicated that on June 17, 1988, he observed
sparks, which he described as hot carbon sparks, corning out of
the exhaust of a diesel engine which was located on the rear of a
boom truck. He indicated that the sparks were hitting the rear
of the boom truck or the hydraulic reservoir. He further indicated that the situation was dangerous, as there was leakage and
spillage from the hydraulic reservoir, and also the "presence" of
ammonia nitrate, which he described as a blasting agent, and
explosives being loaded (Tr. 113). He issued a section 107(a}
Withdrawal Order and a section 104(a) Citation citing a violation
OL 30 C.F.R. § 57.6250.
Section 57.6250 indicates, as pertinent, that "Smoking and
open flames, . . . shall not be permitted within 50 feet as
measured by the line of sight of explosives, blasting agents,
. . .
." The sparks coming out of the diesel engine exhaust, on
a "continuous" basis as described by Shanholtz (Tr. 126), would
not appear to be within the purview of section 57.6250, which
prohibits smoking and open flames. The record does not contain
any evidence of the distance between the sparks and the ammonia

1293

nitrate, referred to as the blasting agent, or between the sparks
and explosives. Also, there is no evidence of the distance
between the sparks and the hydraulic leakage or spillage observed
by Shanholtz. It is clear that there has not been a violation of
section 57.6250, which prohibits flames "within 50 feet" of explosives and blasting agents. Further, aside from the opinion of
Shanholtz that the hydraulic fluid was combustible, there is no
evidence that such was either an explosive or a blasting agent.
For these reasons, I find that Petitioner has failed to establish
that the conditions observed constitute a violation of section
57.6250. Therefore, Citation 3253131 is dismissed.
Citation No. 3253336.
Shanholtz indicated that on August 17, 1988, he pumped the
brake pedal of an idle boom truck "several times" (Tr. 200) without starting the engine. He said that the brake pedal went to
the floor.
Also, he indicated that the hydraulic reserves were
empty and dry, and that there was evidence of leakage at the
wheels. He also indicated that two of Respondent's employees
told him that the truck did not have brakes, and that Gary Parks
told him that he stopped the truck by running it into a large
rock rib or muck pile. Charles Williams, a mechanic working for
Respondent, indicated that he had operated the truck in question,
stopped it with the brakes, and he had not seen other employees
stop it by running it into something. He also indicated that the
truck is equipped with vacuum hydraulic brakes, and the engine
has to run in order to apply the brakes so that the booster can
work.
I do not accord much probative value to the testimony of
Williams with regard to his experience operating the truck and
being able to stop it~- as his testimony did not establish that he
actually had driven the truck on the day it was testea by
Shanholtz, nor at any time in reasonable proximity to Shanholtz'
inspection. Based on Shanholtz' testimony that the brake pedal
went all the way to the floor and, importantly, that the hydraulic
reserves were empty and dry with evidence of hydraulic leakage at
the wheels, I find sufficient evidence to conclude that the vehicle
in question did not have "adequate brakes." Accordingly, I conclude that Respondent did violate 30 C.F.R. § 57.9003.
The only evidence with regard to the likelihood of the occurrence of a reasonably serious injury, consists of Shanholtz'
testimony that it is "MSHA's experience," (Tr. 188) that operating a vehicle without brakes will result in a fatality.
I find
this conclusion insufficient to establish a finding that there
was any imminent danger involved. Further, considering the
unrebutted testimony of Williams that the vehicle had two braking
systems, and considering the lack of detailed testimony concerning
the terrain in which the vehicle operated, i.e., whether the area

1294

was level, and whether there were drop-offs or obstacles in the
vicinity, it must be concluded that it has not been established
that there was any reasonable likelihood of an occurrence of a
reasonably serious injury. Accordingly, I conclude that it has not
been established that the violation herein was significant and
substantial (Mathies Coal Co., 6 FMSHRC 1, (January 1984)).
Although Williams indicated, in essence, that he did not
have any difficulty stopping the vehicle in question, his testimony does not establish when he last was able to drive the truck
and stop it. According to Shanholtz, the brake pedal went down
to the floor, and it would appear that this condition would be
obvious to any one driving the truck. Further, Shanholtz testified that two employees told him that the vehicle did not have
brakes and it was stopped by driving into an obstruction. Thus,
I find that the negligence of Respondent herein was relatively
high. Further, I find that Respondent has not adduced any
evidence to establish that its operation would be aaversely
affected by the imposition by any fine herein. As noted above, I
find that the record does not establish a description of the
terrain in which the vehicle in question was operated. As such,
I conclude that it has not been established that the gravity of
the violation herein was of a nigh degree.
I have taken into
account the remainder of the statutory factors of section 110 of
the Act, as stipulated to by the Parties, as well as the history
of violation as indicated by Exhibit 1. Taking into account all
these factors, I conclude that a penalty herein of $200 is appropriate for the violation found herein.
Citation No. 325338.
Shanholtz testified that he observed various safety defects
with regard to a boom truck. He indicated that there was no
stability jacks to support the truck when the boom was in the
air, and therefore there was a possibility of the trucK overturning if it was used in the wrong capacity. He said he also
observed hydraulic leaks at the cylinder, which created a danger
of a fire or a slipping hazard. He also indicated that the doors
were missing, there were no lights, and there was a rag in the
gas tank which acted as a wick for the gas, causing a danger of
ignition. Shanholtz issued a 104(a) Citation alleging a violation
of 30 C.F.R. § 57.9002.
Section 57.9002, supra, provides that "Equipment defects
affecting safety shall be corrected before the equipment is used."
The record does not establish that the truck in question was
being used.
Inasmuch as section 57.9002, requires safety defects
to be corrected as a condition precedent to the use of the equipment, it is clear that there is no violation in the absence of
evidence of the equipment being used. Since there is no evidence
that the truck in question was being used, the Citation herein is
dismissed.

1295

~

Citati6n No. 3253340.
Shanholtz indicated that on October 17, 1988, one of
Respondent's employees, Raymond Patton, told him that the previous day he had to throw rocks under the wheel of a compressor
truck in order to stop it, as the brakes did not hold. He also
indicated that another employee had told him that he had trouble
with brakes the day before. Shanholtz said that he did not start
the truck, but applied the brake with his foot and there was no
resistance as the pedal went to the floor.
He said he checked
for hydraulic fluid, but did not find any.
Teddy Combs testified on behalf of Respondent and indicated
that he operated the truck in question and stopped it by applying
the brakes.
I do not place much weight on Combs' testimony, as his testimony did not establish that he was able to stop the truck the
same date as Shanholtz' inspection, or at some time in close
proximity to that day. Based on the testimony of Shanholtz, I
conclude that the brakes on the truck in question were not
adequate, and as such Respondent violated 30 C.F.R. § 57.9003.
According to Shanholtz, the violation herein was significant
and substantial based on the experience of MSHA that operating a
vehicle without brakes is highly likely to result in a fatality
or serious injury.
In the absence of specific testimony with
regard to the specific terrain on which the vehicle in question
traveled,
and the circumstances under which it was operated, I
find the testimony of Shanholtz insufficient to support a conclusion that the violation herein was significant and substantial.
According to the uncontradicted testimony of Shanholtz, he
was told by two employees that they had driven the truck in
question the previous day and the brakes did not work. Further
it is clear that one operating the truck would have noticed that
the brake pedal did not have any resistance. Hence I find the
Respondent herein acted with a relatively high degree of negligence in not having the brakes repaired. Taking this into
account, as well as the remaining statutory factors, I find that
a penalty herein of $200 is appropriate for the violation herein.
Citation No. 2861242.
Shanholtz indicated that on August 17, 1988, he inspected an
''old" truck which had a mobile drill placed on it (Tr. 277). He
said that the foot brake pedal went to the floor, and that
although the truck had an air braking system, there still should
have been some resistance to the brake pedal. He indicated that
he did not start the truck, but the brake lines were "deteriorated," bent and broken, and "nonfunctional" (Tr. 280). He
indicated that although there was a parking brake handle which he

1296

applied, he looked and to the best of his knowledge there was no
cable . He also indicated that Respondent's employees told him
that they had to drive the truck into a stock pile or rib to stop
it whenever they used it.
Combs indicated that he had operated the drill prior to
August 17, and that the brakes did operate. He said that the
engine must operate before the hydraulic system can function. He
also said that the parking brake worked. Williams indicated that
he used the truck once or twice and the parking brake did work.
I do not place much weight on the testimony of Combs and
Williams with regard to the functioning of the brakes on the subject truck, as Williams indicated that he used it only once or
twice and did not indicate the time period in which he used it,
and how close that period was to the inspection by Shanholtz.
Combs indicated that he last ran the truck 3 weeks to a month
prior to the inspection. I find this too remote in time to be
probative of the condition of the brakes at the date of
inspection.
Based on the testimony of Shanholtz, I find that the truck
did not have adequate brakes. The truck clearly is a power
mobile piece of equipment, in spite of the fact that at the time
of the inspection it had flat tires. As such, I find that there
has been a violation herein of section 57.9003, supra, as cited
by Shanholtz. The testimony of Shanholtz and the balance of the
evidence with regard to the issue of significant and substantial,
is essentially the same as was presented in Citation No. 3253340.
For the reason that I discussed, infra, P. 6, I find that it has
not been established that the violation herein was significant
and substantial.
I find that a penalty herein of $200 is appropriate, based on the same reason set forth in Citation Nos.
3253336 and 3253340, infra, P. 6, 7.
Citation No. 2861244.
Shanholtz, in essence, indicated that on August 17, 1988, he
observed a lot of large overhanging trees (Tr. 330) which he
described as an extremely dangerous situation. He also said
"There was loose ground there.
It was obvious, large slabs."
(Tr. 331). According to notes he had made on August 17, 1988, he
indicated that the material he observed was above and to both
sides of the portal. Shanholtz issued a citation alleging violation of 30 C.F.R. § 57.3200, which, as pertinent, provides that
"Ground conditions that create a hazard co persons shall be taken
down or supported before ocher work or travel is permitted in the
affected area."
Respondent presented testimony from Denton and Williams.
I
do not place much weight on their testimony with regard to the
conditions in question as neither of them observed the conditions
on the date in question, and their testimony was limited to
interpreting photographs (Exhibits 26, 28, 29, and 37).

1297

Based on Shanhotz' testimony I find that on the date of the
Citation there were certain conditions that created a hazard.
However, on the date in question, there is no evidence that there
was any work or travel in any area affected by the observed conditions. Denton and Williams preferred their opinions, based
solely on their examinations of the photographs, Exhibits 26, 28,
29, and 37, as to the time sequence of various shots.
I do not
find any of this testimony helpful in resolving the issues herein.
I find that Petitioner has failed in its burden in establishing
by competent evidence that any work or travel was permitted by
Respondent in any area affected by the conditions he observed
that he termed to be dangerous.
Indeed, there is no evidence
whatsoever which delineates the "affected area."
(Section
57.3200, supra). Hence I must conclude that it has not been
established that there has been any violation of section 57.3200,
supra. Accordingly, I find that Citation No. 2861244 shall be
dismissed.
Citation No. 20612147.
Shanholtz indicated that on August 17, 1988, he observed a
front-end loader operating in "uneven terrain" (Tr. 406). He
said that Raymond Parks was operating it and that he (Shanholtz)
noticed that Parks was using the reverse gear to stop the loader
when it was going forward, and using the forward gear to stop it
when it was going backwards.
Shanholtz said that he asked Parks
to back it up and stop it, and Parks backed the vehicle up at
5 to 10 miles an hour, put the brake on, pumped the brakes three
times and it traveled approximately 100 feet before it stopped.
He said that the vehicle stopped when Parks dropped the bucket.
Shanholtz said that he asked Parks if there were problems with
the brakes, and Parks said that he "didn't have any" (Tr. 408).
Shanholtz indicated that he did not check the hydraulic system
reservoir, and said that the backup system can only be used
4 or 5 times. Shanholtz issued a Citation alleging a violation
of 30 C.F.R. § 57.9003.
Williams testified that at approximately 6 a.m. on the day
of the inspec~ion, August 17, he loaded the above vehicle and it
stopped "real fast" (Tr. 425). He said that after the inspection
the booster system was checked with a gauge, and it read 300
pounds which @eant it was not depleted.
He indicated that to
abate the Cit3tion a hydraulic system pump was replaced, but that
the old one was "operating good" (Tr. 431).
In essence, he
indicated that the reason why the pump was replaced was "because
he had to try and fix it whatever was wrong with it" (Tr. 428).
Although ~he brakes may have operated satisfactorily when
Williams drove the vehicle in question at 6 a.m., I find nothing
in the record ~o contradict the observations of Shanholtz at
approximately 2:30 p.m., with regard to Parks' inability to stop
the vehicle in question.
I find Shanholtz' testimony with regard
to nis observ~~ions sufficient to establish a viol3tion of

1298

section 57.9003, supra, which, in essence, requires mobile equipment to have "adequate brakes." Shanholtz• testimony with regard
to the issue of significant and substantial was essentially the
same as presented in Citation Nos. 3253336, 3253340, and 2861242,
1nrra. Aside from Shanholtz• indication that the vehicle was
being operated over uneven terrain, there was insufficient
evidence presented as to the speed at which the vehicle was
operated, the presence of dangerous obstructions or drop-offs,
nor was there presented any detailed description of the terrain.
Further, I note that Shanholtz did not check the brake reservoir,
and Williams testified that after the Citation the booster system
still contained 300 pounds, which indicates that it was not
depleted. This testimony has not been contradicted. Hence, I
must conclude that it has not been established that a reasonably
serious injury was reasonably likely to occur as a consequence of
the impaired braking of the vehicle in question. Accordingly, it
has not been established that the violation herein was signif icant and substantial. Essentially for the reasons I discussed in
Citation Nos. 3253336, 3253340, and 2861242, I find that a
penalty herein of $200 is appropriate.
Citation No. 2861248.
Shanholtz indicated that access to a clutch on the crusher
used to energize a diesel drive, was only by crawling under a
V-belt which would subject one to being immediately killed, or
coming behind the crusher where one would be exposed to unsure
footing and V-belts. Shanholtz indicated that, on August 17,
1988, two employees were present, one whose first name was
identified as Arnold, and Parks. Shanholtz indicated that Arnold
demonstrated for him access to the clutch by crawling under the
belt, and that Parks demonstrated access by going behind the
crusher.
Neither Shanholtz, nor Denton, who was present, recalled
seeing any steps going up to the platform where the clutch was
located. Denton indicated that, on August 17,
he was on the
platform. He indicated he did not go up any steps to reach it and
did not recall seeing any steps. He indicated he got off the
platform by jumping off.
Shanholtz issued a Citation alleging a
violation of 30 C.F.R. S 11081 which provides that "Safe access
shall be provided and maintained to all working places."
Exhibit B, which, according to Respondent's Vice President
Jeffrey T. Staton, indicates the crusher in question, clearly
depicts steps going up to the platform on which the clutch was
located. According to Staton•s testimony the crusher was
installed in 1984, and always had steps on it.
Staton indicated
that Exhibit B depicts steps the same way they were located on
August 17, 1988.

1299

Based on observations of Staten's demeanor, I find, that as
depicted on Exhibit B, there were steps on August 17,1988, leading
to the platform on which a clutch was located. There is no
evidence that this means of access was not safe. Accordingly, I
find that it has not been established that there has been a violation herein of section 57.11001, supra. For these reasons
Citation No. 2861248 should be dismissed.
ORDER
It is ORDERED that Citation Nos. 3253179, 3253131, 3253338,
2861244, 2861248, 3253127, 2861249, 3253324, and 2861250 be
DISMISSED.
It is further ORDERED that Citations 3553336, 3253340,
2861242, and 20612147 shall be amended to reflect the fact that
the violations cited therein are not significant and substantial.
It is further ORDERED that, within 30 days of this Decision,
Respondent pay $820 as a civil penalty for the violations found
herein.

A am Weisberger
Administrative Law Judge
Distribution:
Michael L. Roden, Esq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Mr. Jeffrey T. Staton, Vice President, Mountain Parkway Stone,
Incorporated, Rt. 1, Box 309-B, Stanton, KY 40380 (Certified Mail)
dcp

1300

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

22041.

JUL 14 \989
RUSHTON MINING COMPANY,
Contestant

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

CONTEST PROCEEDING
Docket No. PENN 88-245-R
Citation No. 2885765; 6/2/88

.

Rushton Mine

DECISION
Appearances:

Before:

Joseph A. Yuhas, Bsq., Ebensburg, Pennsylvania,
for Contestant, Rushton Mining Company (Rushton);
Anita Eve, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania,
for Respondent, the Secretary of Labor (Secretary}.

Judge Broderick

STATEMENT OF THE CASE
Rushton filed a notice contesting the issuance of a citation
on June 2, 1988, under section 104(a) of the Federal Mine Safety
and Health Act of 1977 (Act), charging a violation of 30 C.F.R.
§ 75.305.
It also contests the designation of the violation as
significant and substantial. The time for abatement was
originally established at June 3, 1988, but this date was
extended by a series of continuation orders to March 31, 1989.
The record does not show whether the citation has been terminated.
A penalty had not been asesssed for the alleged violation as of
the hearing date. Pursuant to notice, the case was called for
hearing in Bellefonte, Pennsylvania on April 12, 1989. Inspector
Donald Klemick testified on behalf of the Secretary.
Raymond G. Roeder, James A. Strenke, Charles Hockenberry and
Robert Supco testified on behalf of Rushton. The parties were
afforded the opportunity to file posthearing briefs. Rushton
filed such a brief; the Secretary did not.
I have considered the
entire record and the contentions of the parties and make the
following decision.

1301

FINDINGS OF FACT
1. Rushton is the owner and operator of an underground coal
mine near Johnstown, Pennsylvania, known as the Rushton Mine.
Rushton is a subsidiary of Pennsylvania Mines Corporation.
2. The Rushton Mine is a very wet mine and has always had
water problems. Approximately 6 million gallons of water are
pumped out daily, and in very wet weather as many as 12 million
gallons are pumped out.
3. The return air courses in the subject mine contained at
least three "water holes," i.e., areas where the mine floor was
covered with water. The air courses had been mined between 1977
and the early 1980's.
4. The area marked as water hole No. 1 on the mine map
(Joint Ex. 1) was covered with water approximately 16 inches deep.
The water in the area of water hole No. 2 was somewhat more than
16 inches deep. At water hole No. 3, the water was approximately
4 feet deep.
5. The length of the area covered by water hole No. 1 was
approximately 40 feet; that covered by water hole ~o. 2
approximately 40 feet; and that covered by water hole No. 3
approximately 150 to 180 feet.
6. The subject mine liberates methane, but there is no
evidence in the record as to the amount. Since 1981, there has
been one methane ignition at the mine, in July 1981.
7. The return air course is normally examined weekly by
Rushton, using two examiners, each examining one portion of the
air course. The area including water holes 1 and 2 is examined
by one examiner; that including water hole 3, by another.
8. On May 30, 1988, 1/ mine examiner Charles Hockenberry
examined the return air course from the West Main hill (near
water hole No. 1) to the Two North Area (beyond water hole No. 2).
The area that he examined covered four bleeder evaluation points
(BE's).
1/ Hockenberry testified that he performed the examination on
June 30, 1988, but the context makes it clear that he meant
May 30, 1988.

1302

9. Hockenberry recorded his initials, the date and time at
date boards located at BE 20, BE 21, BE 3, BE 4, and at an old
regulator at or near water hole No. 2. All of these locations
were in the return air course, and the initials, date, and time
were intended to show that he examined the return air course and
the bleeders.
10. Hockenberry was able to walk through water hole No. 1
which was of a depth that it reached the top of his boots. He
walked into water hole No. 2 and examined the roof and ribs
visually across the water hole. From where he stood, it was
approximately 20 feet to the far water's edge. He examined the
other side of the water hole at the water's edge.
11. On June 2, 1988 (during the midnight shift), mine
examiner James Strenke examined the return air course from the
Two North Switch to an area beyond water hole No. 3.
12. Strenke walked into the water at water hole No. 3, but
the water was too deep to traverse the area. He tested the roof,
did ventilation and methane tests, and checked for oxygen
deficiency. He could see part of the way across the water
(approximately 200 feet) and thought he could see across the
entire surf ace.
13. Strenke failed to record his initials, the date and
time at the No. 3 waterhole. He travelled around the area, came
back to the return entry, and examined the other side of the
water hole at the water's edge. He did not record his initials,
the date and time at that side of the water hole.
14. On June 2, 1988, Federal Coal Mine inspector
(ventilation specialist) Donald J. Klemick was assisting in the
AAA inspection of the entire Rushton Mine. He was accompanied by
Kent Fenush, company Safety Inspector and Greg Archer,
representative of the miners. The inspection team proceeded down
the return air course past three or four bleeder evaluation
points to water hole No. 1. Fenush had been with Rushton only a
short time. He was not familiar with the areas inspected.
Neither Fenush nor Archer were called as witnesses.
15. Inspector Klemick found examiner's initials dated
May 23, 1988, but did not find any initials dated after May 23,
1988. Nor were Fenush or Archer able to find any more recent
initials. No initials were seen at the water's edge of water
hole No. 1.
16. After by-passing the water hole, Klemick came back to
the return air course. He found no initials at the other edge of
the water. He did find a date, May 30, 1988, at bleeder

1303

evaluation point No. 4, but no initials.
Bleeder evaluation
point 4 is between water holes 1 and 2. The inspection team
proceeded to water hole 2 which they found impassible, filled
with water and "yellow boy." They went around the area and
reentered the return proceeding to water hole No. 3.
17. Water hole No. 3 was very deep and extended a distance
of about 180 feet.
18. After exiting the mine, Inspector Klemick checked the
examination records at the mine office. These showed that the
examinations had been made May 30, 1988, by Hockenberry.
19. After Klemick left, Rushton's Superintendent,
Robert Supko, had his third shift foreman check for the initials.
He was accompanied by a UMWA belt examiner. Five locations were
found containing date boards with Hockenberry's initials, the
date May 30, 1988, and the time written on them. The
Superintendent had one board brought out of the mine to show
Klemick when he returned.
DISCUSSION
Although the inspector did not find any evidence (initials,
date and time}, that the return air course had been inspected
within the prior seven days, I accept the testimony of
Hockenberry and Strenke that such inspections were actually made,
Hockenberry's on May 30, 1988 and Strenko's before 8 a.m., on
June 2, 1988. I further accept the testimony of Hockenberry,
corroborated by Superintendent Supko, that he placed his
initials, the date and time at five locations along the return
aircourse on May 30, 1988. Strenke was uncertain as to whether
he placed his initials and the date and time of his examination
on June 2, 1988. I find that he did not.
20. On October 29, 1987, MSHA Administrator for Coal Mine
Safety and Health issued a memorandum to MSHA District Managers
which, among other things, stated:
Section 75.305 requires weekly examinations of air
courses and other areas by a certified person.
Modification of these requirements where a roof fall
has occurred, or where an area is unsafe for travel,
can be achieved only through the petition for
modification procedures . • •
(GX 2).
21.
Inspector Klemick issued a citation alleging a
violation of 30 C.F.R. § 75.305 because the West Mains return
air course was not being examined in its entirety. The citation
charged that there were three areas of standing water and that

1304

the evidence indicates they were being by-passed. In addition
there was no evidence of dates, times, and initials present to
indicate that the return aircourse was being examined at
intervals not exceeding seven days.
22. The citation was continued while water was being
removed from water hole 1 and 2 and a bridge was constructed over
a portion of water hole 2. Rushton filed a petition for
modification with respect to the area covered by water hole 3.
REGULATION

30 C.F.R. § 75.305 provides in part as follows:
In addition to the preshift and daily examinations ••• ,
examinations for hazardous conditions, including tests
for methane, and for compliance with the mandatory
health or safety standards, shall be made at least once
each week by a certified person ••• in the return of
each split of air where it enters the main return ••• ,
at least one entry of each intake and return aircourse
in its entirety •••• The person making such
examinations and tests shall place his initials and the
date and time at the places examined, and if any
hazardous condition is found, such condition shall be
reported to the operator promptly.

*

*

*

ISSUES
1.

Whether, within seven days of June 2, 1988, examinations

by certified persons were made in the return air course of the

west Mains of the Rushton Mine?
2. Whether, if such examinations made, the person(s) making
the examinations placed their initials, and the date and time at
the places examined?
3. Whether, if a violation is established, it was
significant and substantial?
CONCLUSIONS OF LAW
1. Respondent is subject to the provisions of the act in
the operation of the Rushton Mine.
I have jurisdiction over the
parties and subject matter of this proceeding.
2. The required weekly examinations of return air courses
do not mandate that the examiner walk the entire area, but he

1305

must be able to adequately examine the entire area for hazardous
conditions and for compliance with mandatory health and safety
standards.
3. With respect to the water holes involved in this
proceeding, 1 conclude that the examiner adequately examined the
area of water hole No. 1 Che walked through the water hole) and
water hole No. 2. In the latter instance, he made methane tests
at the water's edge and was able to adequately examine the roof
and ribs by sighting over the water--a distance of about 20 feet.
I further conclude that the examiner was unable to adequately
examine the area of water hole No. 3. The water hole was
impassible, and it was not possible to adequately examine the
roof and ribs by sighting over a distance of 180 feet.
4.
I conclude, based on my finding of fact No. 9, that the
examiner placed his initials and the date and time at the places
examined in the areas covering water holes 1 and 2.
5. I conclude, based on my finding of fact No. 13, that the
examiner did not place his initials and the date and time at the
places examined in the area covering water hole 3.
6.

Therefore, I conclude that a violation of 30 C.F.R.

§ 75.305 has been established to the extent that an adequate

examination was not made of the area covered by water hole 3 and
the examiner failed to place his initials and the date and time
of the examination in that area.
7. There is no evidence in the record that the violation
was reasonably likely to result in an injury of a reasonably
serious nature. Therefore, the citation was improperly
designated as significant and substantial.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Citation 2885756 issued June 2, 1988, is AFFIRMED to the
extent that it charges a violation of 30 C.F.R. § 75.503 for
failure to examine that portion of the return air course which
includes water hole No. 3, and failure to cecord the examiner's
initials and the date and time of examination at that area.
2. The citation is MODIFIED to eliminate the designation of
the violation as significant and substantial.

1306

3. The Notice of Contest is therefore GRANTED in part and
DE"NIED in part.

,,

1:

·/

1~·u,s ~1-vfc~1e/__ _

James A~ Broderick
Administrative Law Judge

Distribution:

Joseph A. Yuhas, Esq., P.O. Box 367, Ebensburg, PA 15931
(Certified Mail)
Anita Eve, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
slk

1307

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

JUL 14 1989
SECRETARY OF LABOR,
MINE SAFETY AND rlEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. YORK 89-2-M
A.C. ~o. 30-00006-05525

v.

Blue Circle Atlantic, Inc.

BLUE CIRCLE ATLANTIC,
INCORPORATED,
Respondent
DECISION
Appearances:

Beiore:

,Jane Snell Brunner, Esq., Office of the
Solicitor, U.S. Department of Labor, New York,
New York for Petitioner;
Paul Gardner, Labor Relations/Safety Manager,
Blue Circle Atlantic, Inc., Ravena, New York, and
Mark A. Lies, II, Esq., Seyfarth, Shaw,
Fairweather & Geraldson, Chicago, Illinois for
Respondent.

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to
section 105(d) of the-Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq., the "Act," charging Blue
Circle Atlantic, Incorporated (Blue Circle) with one
violation of the regulatory standard at 30 C.F.R. S 56.14006.
The general issue before me is whether Blue Circle violated
the cited regulatory standard and, if so, the appropriate
civil penalty to be assessed in accordance witn section
llO(i) of the Act.
The citation at bar, No. 2630320, issued pursuant to
section 104(a) of the Act, alleges a "significant and
substantial" violation and, as amended, charges as follows:
An employee was required to apply speedi-dry to d
take-up pulley drive on the ~o. 1 main conveyor to
~Jrevent. the pulley from slippin9.
The guard was
open and the conveyor was running w.iririg the

1308

application process which occurred at 4:05 pm,
6-30-88 on the second shift.
The cited standard requires that "[e]xcept when
testing the machinery, guards shall be securely in place
while the machinery is being operated."
At hearing Blue Circle conceded that a violation
occurred but maintained that it was caused by the
unauthorized actions of a non-supervisory employee,
Michael Carrano and, presumably, that it was accordingly
without negligence.
Former Blue Circle employee Michael Carrano testified
that before his retirement on March 31, 1989, he had worked
more than 23 years for Blue Circle.
At the time of the
alleged violation he was working as a utility man, cleaning,
aligning and maintaining the No. 1 belt.
Carrano described
the belt, which transports rock and stone, as 3 to 4 feet
wide and running about 3,000 feet in each direction.
Carrano testified that on June 30, 1988, a "spin-out"
occurred on the No. 1 belt caused by wet conditions.
A
"spin-out" results from slippage between the drive pulley and
the belt causing the belt to slow down or stop.
Spin-outs
are corrected by feeding scoops of a substance known as
''speedi-dry" onto the pulley as it rotates thereby providing
friction' between the pulley and the belt.
~ccording to Carrano it had been the established
procedure for as long as 20 years to correct a spin-out by
first removing the guard surrounding the belt pulley and then
calling the crusher operator by mine telephone to stop the
belt.
An initial quantity of speedy-dry would then be
scooped onto the pulley and the belt started.
Additional
speedy-dry would then thrown onto the rollers as the pulley
is rotated.
Since the wire mesh on the guard was too fine to
enable any significant application of speedi-dry to the
rollers it was found to be necessary to remove the guard
before application.
Carrano testified that he had been
taught this procedure by his foreman Ray Shove.
Other Blue
Circle employees including union committeeman Richard Boice,
crusher operator Arnold Schieren, Jr., Martin Powell, and
crusher operator Edward Smith, confirmed that these
procedures had been followed at the plant for years.
The
testimony of Boica is also undisputed that he warned Lloyd
Shove within six months before the incident at issue and also
the current superintendent about the inability to a9ply
speedi-dry through the exi.3ting mesh 9uard.
iie inr~r;ned oath
that it was thererore necessary for the employee3 to open the

1309

guard and apply the speedi-dry onto the moving belt.
It is
further undisputed that these officials admitted to Boice
they knew they had a problem and were planning on correcting
it in September 1988.
According to Carrano, several months before June 30,
1988, the Blue Circle employees were warned by company
officials to no longer remove the guard. On June 30, 1988,
another spin-out occurred because of rain. Carrano's
foreman, John Zubris, told Carrano by telephone to get the
belt running. What happended next was described at hearing
by Carrano in the following colloquoy:

Q
[By Government Counsel] Now, on June 30th, 1988
after the belt spun out, tell us precisely what
happened.
A
[By Carrano] Well, at this time the belt spun
out -- this happend after we had orders not to open
that guard, and not to open that guard under no
circumstances, you'll be fired.
So, the belt spun
out and I realized I couldn't get speedi-dry in
there. So I called my foreman, John Zubris, told
him I can't***
And I told him I can't feed speedi-dry in cause I
can't take the guard off. He said, "Well, I want
the belt running." I said, "I can't." He said,
Mikey, get that belt running." I said John, I
can't." I said, "I can't take the guard off because
I'll be fired."
So, he says, "Mike, get your wrench, take that nut
off there." He said, "Don't let me colile up those
"f-ing" stairs and have to do it. Get that belt
running."

So meanwhile I got my wrench -- well, I did ask
him, I 3aid, "If I take this guard off, would you
back me up on this?" He said, "yep." I took the
guard off.
He come up while I was taking the guard
off, and before I fed speedi-dry on the belt he
left.
Then I proceeded to throw speedi-dry on there, and
I had the crusher operator on the phone and I told
him to start it, and as he started I ~ept feeding
it, and we got the belt running.
So, I didn't
thin~ this ~as a very good idea, so I told Dick

1310

Boice [the union representative] about it.
(Tr. 16-18).
Boice recalled that on June 30, 1988, Carrano indeed
called him on the mine telephone. Carrano had been
confronted by Zubris and was agitated. Boice overheard
Zubris "screaming at the top of his lungs" on the phone
ordering Carrano "you'll do what I tell you, when I tell you,
and I don• t care if you like it or not".
Inspector William Prehoda of the Federal Mine Safety and
Health Administration (MSHA), issued the citation at bar
based upon Carrano's statements that Zubris directed him to
perform the cited procedure. Prehoda described the hazard as
follows:
by putting speedi-dry on with the scoop -- and this

is what Mike Carrano stated he had the guard open
and he was putting speedi-dry on with a scoop,
and •.. the conveyor was running, and this by being
the pinch points it could have caught his arm and
probably pulled his arm off, or even himself got
thrown into the pulleys so, in other words, it was
an unsafe act .•.
This unchallenged testimony is minimally sufficient to
support an inferential finding that the violation was
"significant and substantial" and serious. See Secretary v.
Mathies Coal Co., 6 FMSHRC 1 (1984).
Prehoda also opined that the operator was highly
negligent because "it was done quite frequently and it should
have been corrected"._ In this regard Prehoda credited
Carrano's statement that he had been directed to perform the
violative act by his foreman John Zubris.
Prehoda therefore
necessarily discredited Zubris' statement to him that while
he had directed Carrano to throw the material onto the pulley
he also told Carrano to close the guard before running the
belt. However upon close examination of the testimony of
Carrano and Zubris and of those additional persons present at
the meeting on July 1, 1988, i.e. Boice and Schucker, I am
satisfied that Zubris did not in fact instruct Carrano
specifically to throw speedi-dry onto the belt with the guard
open while the belt was moving.
Zubris' instructions were of
course admittedly in violation of the company's March safety
directive against opening the guard without the belt being
locked-out. Carrano may have accordingly been seriously
concerned by Zubris' order b~t I do not find that Zubris
directly ordered Carrano to violate the cited standard.

1311

Blue Circle is not however without negLigence.
The
evidence shows the existence of a long standing practice of
many years during which speedi-dry was applied to a moving
pulley with its guard open.
In spite of the company memo
issued in March 1988 ostensibly prohibicing the practice,
management knew that the only effective application of
speedi-dry was with the guard open.
It is undisputed that
Boice so informed several company of£icials and was toid only
that the problem would not be corrected until September 1988.
Thus while Car~ano may not have been directly ordered to
perform the cited violative act, he was nevertheless placed
in a position by Zubris' orders (to get the belt running) of
being compelled to commit the violative act because it was
within the knowledge of management that the only way to get
the belt running under the circumstances was to apply the
speedi-dry onto the moving belt with the guard open.
This
compulsion under the circumstances constitutes high
negli9ence.
I

Considering the criteria under section llO(i) of the Act
find that a civil penalty of $400 is appropriate.
ORDER

Blue Circle Atlantic, Inc. is hereby direc~ed to pay a
civil penalty of $400 within 30 days of the dat~ of this
decision.
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Distribution:

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Jane Snell Brunner, Esq., U.S. Depart~~nt of Labor, Office of
the Solicitor, 201 Varick Street, New ~ork, NY 10014
(Certified Mail)
Mr. Paul W., Gardner, Labor Relations/Safety Manager, P.O.
Box 3, Ravena, NY 12143 (Certified Mail)
~ark A. Lies, II, Esq., Seyfarth, Shaw, Fairweather &
Gearaldson, 55 East Monroe Street, Chicago, IL 60603
(Certified Mail)

nt

1312

.

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

22041

JUL 18 1989
CIVIL PENALTY PROCEEDING

SECRE'rARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA'rION (MSHA),
Petitioner
v.

Docket No. KENT 89-82
A.C. No. 15-13469-03696
No. 9 Mine

GREEN RIVER COAL CO., INC.,
Respondent

.
DECISION

Appearances:

Before:
STATEMEN~

Joseph B. Luckett, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee, for
the Secretary of Labor (Secretary);
Mr. William Craft, Madisonville, Kentucky, for
Green River Coal Co., Inc. (Green River).

Judge Broderick
OF THE CASE

The Secretary seeks civil penalties for two alleged
violations of mandatory safety standards: one charges a
violation of 30 C.F.R. § 75.1710 because a scoop allegedly used
inby the last open crosscut was not provided with a canopy; the
other charges a violation of 30 C.F.R. § 75.503 because of a
permissibility violation on a loading machine. Pursuant to
notice the case was heard in Owensboro, Kentucky on June 7, 1989.
George Newlin testified on behalf of the Secretary. Mike
McGregor testified on behalf of Green River. The parties waived
their right to file post hearing briefs.
I have considered the
entire record and the contentions of the parties and make the
following decision.
FINDINGS OF FACT
FINDINGS RRLATING TO BOTH CITATIONS
Green River is the owner and operator of an underground coal
mine in Hopkins County, Kentucky, known as the ~o. 9 Mine. The
mine is moderately large:
it produces over one million tons of
coal annually, and employs approximately 200 workers.
During
the 24 month period from October 28, 1986 to October 27, 1988,
the mine was cited for 1,057 violations of inandatory safety and

1313

health standards; 10 of these were for violations of 30 C.F.R.
§ 75.1710; 74 were for violations of § 75.503.
This is a
substantial history of prior violations, and if violations are
found herein, the penalties will be increased because of it. The
violations cited herein was promptly abated in good faith after
the citations were issued.
CITATION 3297516
On October 28, 1988, at about 5:25 a.m., Federal Coal Mine
Inspector George Newlin issued the subject citation while making
a regular inspection of the ~o. 9 Mine. The mine was not
producing coal during the midnight shift, and only maintenance
work was being performed. The inspector came upon a scoop in the
No. 2 unit, about three crosscuts outby the face. The scoop was
at the charging station being charged. Since it was being
charged, it was deenergized. The canopy had been removed from
the scoop. The height of the coal was approximately 50 inches.
The roof condition in the subject mine is not good. The mine has
experienced a large number of unexpected roof falls.
The scoop was not locked or tagged out.
Inspector Newlin
was accompanied by company safety inspector (now safety director)
Mike McGregor, and Union representative Jarvis. Both McGregor
and Jarvis said the scoop was a unit scoop and was used for
cleanup at the coal face. McGregor said he was surprised that it
did not have a canopy.
Green River has a number of scoops, all of them electric
powered. Those used at the face are provided with canopies;
those used outby are not.
I find as a fact that the scoop cited
herein was regularly used at the face.
Its canopy had been
removed and not replaced. The next production shift was to begin
work at about 8:25 a.m. on October 28, 1988.
The violation was abated by replacing the canopy on the
scoop in question. The citation was terminated October 31, 1988.
CITATION 3297518
On October 28, 1988, at about 6:00 a.m., Inspector Newlin
found an opening in a control panel of a loading machine to be in
excess of the permissibility limit (the opening was .005 inch;
.004 inch is the limit permitted). The loader was not energized,
the mine was on the maintenance shift and not producing coal.
The loading machine was in the entry at the last open crosscut.
It had a permissibility plate or label and had been used and was
intended to be used in the production of coal. The subject mine
liberates in excess of 700,000 cubic feet of methane per day. At

1314

the time the citation was issued, the inspector found between .2%
and .3% methane. The air was good.
The violation was abated by tightening the bolts on the
control panel and closing the gap to within .004 inch. The
citation was terminated at 6:30 a.m., October 28, 1988.
REGULATIONS
30 C.F.R. § 75.1710 provides as follows:
An authorized representative of the Secretary may
require in any coal mine where the height of the
coalbed permits that electric face equipment, including
shuttle cars, be provided with substantially
constructed canopies, or cabs, to protect the miners
operating such equipment from roof falls and from rib
and face rolls.
30 C.F.R. § 75.503 provides as follows:
The operator of each coal mine 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.
ISSU~S

1. Whether the Secretary can cite an operator for failure
to have a canopy on electric face equipment without observing the
equipment being operated at the coal face?
2.

Whether the facts establish a violation of 30 C.F.R.

§ 75.1710?

3. Whether the Secretary can cite an operator for a
permissibility violation at a time when the cited electric face
equipment is not being operated, i.e., when the section is idle?
4.

Whether the facts establish a violation of 30 C.F.R.

§ 75.503?

5. If the violations are established, whether they were
significant and substantial?
6. If the violations were established, what are the
appropriate penalties?

1315

CONCLUSIONS OF LAW
JURISDICTION
Green River is subject to the provisions of the Mine Act in
the operation of the subject mine.
I have jurisdiction over the
parties and subject matter of this proceeding.
CANOPY ON SCOOP
Section 104(a) of the Act provides that if upon inspection
an authorized representative of the Secretary believes that an
operator of a coal mine has violated the Act or any mandatory
safety stadard, he shall issue a citation to the operator. The
statute does not require that the authorized representative
observe the violative condition; he need only believe that a
violation occurred. In the present case, I have found as facts
(1) the scoop was present in the section and did not have, as the
regulations required, a canopy to protect the scoop operator; (2)
the inspector was informed by representatives of the miner and by
a union miner that the scoop was a "unit scoop used on the unit
for cleanup."
(Tr. 11); (3) the mine produced coal on the shift
prior to the inspection and expected to produce coal on the
shift subsequent to the inspection.
Based on these facts, the
inspector reasonably believed that a violation occurred.
I
conclude that the scoop was an item of electric face equipment
and required a substantially constructed canopy. A violation of
30 C.F.R. § 75.1710 has been established.
The subject mine has a history of roof falls. The roof is
not a stable roof. The operation of electric face equipment
without a canopy is reasonably likely to result in serious injury.
I conclude that the violation was significant and substantial.
The absence of the canopy on the scoop was obvious.
It had been
removed for some unknown reason.
I conclude that the violation
resulted from Respondent's negligence.
Based on the criteria in
section llOCi) of the Act, I conclude that an appropriate penalty
for the violation is $250.
PERMISSIBILITY VIOLATION
30 C.F.R. § 75.503 requires an operator to maintain in
permissible condition all electric face equipment which is taken
into or used inby the last open crosscut.
Neither the Act nor
the regulations require that the inspector observe the equipment
actually being operated inby the last open crosscut. Such a
requirement would defeat the whole purpose of the regulation.
There is no question that the loader was electric face equipment.
There is no question that it had been operated in~ the last open
crosscut.
It was in fact in the entry at the last open crosscut

1316

when cited. It was not contested that the equipment was not
permissible.
I conclude that a violation of 30 C.F.R. § 75.503
was established.
Because the subject mine liberated considerable methane the
violation was serious. It was reasonably likely to cause serious
injury to miners. Therefore the violation was significant and
substantial. The condition could have been found on weekly
examination, but there is no evidence that it existed at the time
of prior weekly exam: it could have resulted at any time from
vibrations, etc. Therefore, I cannot conclude that it resulted
from Green River's negligence. Based on the criteria in section
llO(i) of the Act, I conclude that an appropriate penalty for the
violation is $150.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1.

Citations 3297516 and 3287518 are AFFIRMED.

2. Respondent shall within 30 days of the date of this
decision pay $400 as civil penalties for the violations found
herein.

Distribution:
Joseph B. Luckett, Esq., u.s. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Mr. William Craft, Green River Coal Company, Rt. 3, P.O. Box
284-A, Madisonville, KY 42431 (Certified Mail)
slk

1317

l

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

22041

JUL 18 1989
ROCHESTER & PITTSBURGH COAL
COMPANY,
Contestant
v.

CONTEST PROCEEDING

.

Docket No. PENN 88-164-R
Citation No. 2879230; 3/7/88

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

Greenwich Collieries No. 2
Mine
Mine ID 36-02404

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 88-288
A. C. No. 36-02404-03723
Greenwich Collieries No. 2
Mine

ROCHESTER & PITTSBURGH COAL
COMPANY,
Respondent
DECISION
Appearances:

Joseph A. Yuhas, Esq., Rochester & Pittsburgh Coal
Company, Ebensburg, Pennsylvania, for the Operator;
Mark D. Swartz, Esq., Office of the Solicitor,
u. s. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary.

Before:

Judge Weisberger

Statement of the Case
In these consolidated cases the Secretary (Petitioner) seeks
a civil penalty for alleged violations by the Operator
(Respondent) of 30 C.F.R. § 75.301, and the Respondent has contested the violation, and alleges that the underlined citation be
vacated. Subsequent to notice, these cases were scheduled and
heard on March 1, 1989, in Bellefonte, Pennsylvania. At the
hearing, Samuel J. Brunatti and James E. Biesinger testified for
the Petitioner, and Mike A. Ondecko testified for Respondent.
The Petitioner filed Proposed Findings of Fact and Supporting
Memorandum on June 21, 1989, and Respondent filed a Post-Hearing
Brief on June 20, 1989.

1318

On June 21, 1989, Petitioner filed a Motion to Amend the
Transcript. This Motion was not opposed and it is GRANTED.
Stipulations
The Parties have agreed to the following stipulations:
1. Greenwich .Collieries is owned by Pennsylvania Mines
Corporation, and managed by Respondent, Rochester and Pittsburgh
Coal Company.

2. Greenwich Collieries is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977.
3. The Administrative Law Judge has jurisdiction over these
proceedings.
4. The subject citation was properly served, by a duly
authorized representative of the Secretary of Labor, upon an
agent of the Respondent at the dates, times, and places stated
herein, and may be admitted into evidence for the purpose of
establishing their issuance, and not for the truthfulness or
relevancy of any statements asserted therein.

5. The Respondent demonstrated good faith in the abatement
of the citation.

6. The assessment of a civil penalty in this proceeding
will not affect Respondent's ability to continue in business.
7. The appropriateness of the penalty, if any, to the size
of the coal operator's_business, should be based on the fact
that:
a. The Respondent company's annual production tonnage
is 10,554,743.
b. The Greenwich Collieries No. 2 Mine's annual production tonnage is 1,195,419.
8. That Greenwich Collieries No. 2 mine was assessed 1,013
violations over 1,053 inspection days during the 24 months preceding the issuance of the subject violation.
9. The Parties stipulate to the authenticity of their
exhibits, but not their relevance, nor to the truth of the
matters asserted therein.
10. On March 7, 1988, MSHA Inspector Samuel J. Brunatti took
air bottle samples at bleeder evaluation point No. 35, and at a
crosscut outby bleeder evaluation point No. 35 at Greenwich
Collieries No. 2 Mine.

1319

11. On March 30, 1988, MSHA Inspector, Nevin J. Davis took
air bottle samples at bleeder evaluation point Nos. 4, 16, 17,
and 19 at Greenwich Collieries No. 2 Mine.
12. The air samples taken by Inspectors Brunatti and Davis
were analyzed at the MSHA Laboratories at Mt. Hope, West Virginia.
13. The Parties stipulate to the following with respect to
the analyses of the air samples at the MSHA Laboratories:
a. The analyses were in accordance with proper scientific protocol.
b. The samples were not altered in any way from the
times they were taken through the end of their analyses.
c. The results obtained accurately reflect the volume
per centum of carbon dioxide in the air at the respective sampling
locations on March 7 and 30, 1988.
14. The Parties stipulate to the authenticity and admissibility of the two documents entitled Table-1 Analyses of Air
Bottle Samples collected on March 7, 1988, and Table-1 Analyses
of Air Bottle Samples collected on March 30, 1988.
Findings of Fact and Discussion
On March 7, 1988, air bottle samples taken by MSHA Inspector
Samuel J. Brunatti at bleeder evaluation point No. 35, at a crosscut at approximately 20 to 30 feet outby bleeder evaluation point
No. 35, bleeder evaluation point No. 17, and bleeder evaluation
point No. 19, all revealed carbon dioxide levels in excess of the
maximum of 0.5 volume percent permitted by 30 C.F.R. § 75.301.
The critical issue presented before me is whether § 75.301,
supra, is applicable to the cases at bar.
30 C.F.R. § 75.301, is applicable to "all active workings."
Petitioner makes reference to 30 C.F.R. § 75.2, which, for proposes of part 75 of 30 C.F.R., defines "active workings," as
• • • • "any place in a coal mine where miners are normally
required to work or travel." In this connection, Petitioner, in
arguing that the cited areas were active workings, refers to
stipulation No. 16, which indicates that the evaluation points in
question were examined weekly by a certified person in accordance
with 30 C.F.R. § 75.305 and 75.316. Petitioner further refers to
the opinion of Brunatti and James Biesinger, an MSHA Supervisory
Inspector, that in certain circumstances, an operator may need to
monitor bleeder evaluation points more frequently than once a

1320

week, sometimes even continuously. In addition, Petitioner
refers to the testimony of its witnesses that, if in the area
water accumulates or the roof deteriorates or the wall crushes,
conditions termed by Brunatti to be not unusual to Respondent's
method of extracting coal by retraction, workers would have to
travel to the areas in question to repair these conditions.
Also, Brunatti indicated that on quarterly and 103Ci) spot
inspections, inspectors are accompanied by miners who are Union
Representatives, and might also be accompanied by miners who are
company representatives. As such, Petitioner contends that
miners are required to travel and work in the cited areas and
hence these areas should be considered "active workings," and be
subject to the terms of § 75.301, supra. For the reasons that
follow, I do not find merit in Petitioner's arguments.
I find, based on Brunatti's testimony and the ventilation
map (Exhibit J-2B), that air coming off the gob goes outby down a
bleeder entry to the various bleeder evaluation points. The air
in this entry then continues outby the gob until it meets and
mixes with the return air that has flowed into this entry. The
entries in which the bleeder evaluation points were located are
perpendicular to the return entries, and appear to deliver air
from the gob to the return air entries. Thus these entries, at
least until the bleeder evaluation points, are to be considered
bleeder entries within the purview of 30 C.F.R. § 75.316-2Ce){l)
whicn defines bleeder entries as " • • • special air courses
developed and maintained as part of a mine ventilation system and
designed.to continuously move air-methane mixtures from the gob,
away from active workings, and deliver such mixtures to the mine
return air courses." Indeed, Brunatti indicated on cross-examination that th2 bleeder evaluation point No. 35 was in the bleeder
entry. It would appear that this comment would also be appropriate to the other bleeder evaluation points in issue, as they are
part of the same ventilation scheme.
Brunatti indicated that the area from which he took the
sample from outby bleeder evaluation point No. 35, was not in a
bleeder entry. However, he indicated that this site was the
mixing point between air coming off the gob and air entering from
the return entries. As such, it would appear that this testing
point is to be considered part of the bleeder system within the
purview of 30 C.F.R § 75.316-2(e)(2) which, in essence, includes
in the bleeder system any combination of bleeder entries and
bleeder entry connections " . • . to any area from which pillars
are wholly or partially extracted • . .
" Section
75.316-2(e)(2), supra, continues to provide that the bleeder
systems extend" . • . to the intersection of the bleeder split
with any other split of air." Accordingly, I conclude that both
the bleeder evaluation points and the area tested by Brunatti

1321

20 to 30 fe~t outby bleeder evaluation point No. 35, are all part
of the bleeder system. Inasmuch as I have found the bleeder
evaluation points and the other area tested by Brunatti to be
part of the bleeder system, I must conclude that they are not
active workings, as section 75.316-2Ce)(2) indicates that the
bleeder systems " • • • shall not include active workings."
In U.S. Steel Corporation 6 FMSHRC 291 (1984), Judge Koutras
was presented with the issue as to whether carbon dioxide
readings in excess of .5 percent taken at a bleeder evaluation
point, were violative of section 75.301, supra. Judge Koutras,
at 307, supra, concluded that Contestant's argument was sound and
logical that 11 • • • when read together with the other standards
found in part 7S, a bleeder entry is not active workings • • •
"
Further, Judge Koutras found, in essence, the fact that a
certified examiner must travel to the bleeder evaluation points
once a week to make an inspection, does not place these points
within the purview of section 75.301, supra. I believe that
Judge Koutras' decision is well founded and choose to follow it.
Petitioner's witnesses testified that it would not be
unusual for conditions to occur in the bleeder entries requiring
miners to enter those entries to perform the repair work. In the
absence of evidence as to the specific practice of Respondent, in
the sections at issue, in requiring miners to work in the areas
in question, I find the testimony to be insufficient to establish
that miners are "normally" required to work or travel in those
areas.
(c.f. Secretary v. Jones and Laughlin Steel Corporation
8 FMSHRC 1058, 1063-1064 (1986)).
Therefore, based upon all of the above, I conclude that the
location at which the samples in question were taken were not
active workings, and as such are not within the purview of
section 75.301, supra.~/ Accordingly, it has not been established that section 75.301, supra, has been violated by
Respondent herein.

1/ I do not find merit in Petitioner's argument that, in
essence, if section 75.301, supra, is applied to the areas in
question, the reault will be the protection of the health of
examiners and other miners who visit bleeder evaluation points on
a normal basis.
It has not been established, aside from the
opinions of two MSHA Inspectors who testified for Petitioner,
that miners are assigned duties in these areas (See, Jones v.
Laughlin Steel corp., 8 fMSHRC 1058 at 1063 (1981). Also it can
not be the intent or section 75.301, supra, to protect examiners.
To do so would require the evaluation points to be preshifted
prior to an examiner's inspection. Even Brunatti has indicated
that the area in question need not be preshifted before an
examiner enters the area.

1322

ORDER
It is hereby ORDERED that Citation No. 2879230 be VACATED,
Docket No. PENN 88-288 be DISMISSED, and the Notice of Contest,
Docket No. PENN 88-164-R is GRANTED.
It is further ORDERED that the transcript of the Hearing be
AMENDED as set forth in paragraphs 1 - 4 of Petitioner's Motion
to Amend the Transcript.

f~ k~--

/
. b erger
Avram
Weis

Administrative Law Judge
Distribution:
Joseph A. Yuhas, Esq., Rochester & Pittsburgh Coal Company,
P. o. Box 367, Ebensburg, PA 15931 (Certified Mail)
Mark D. Swartz, Esq., Office of the Solicitor, u. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philajelphia, PA 19104 CCertif ied Mail)
dcp

1323

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

SECRETARY OF LABOR,
MINE SAFETY. AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
DONALD J. ROBINETTE,
Complainant

Docket No. VA 87-21-D
NORT CD 87-5

v.

Mine No. 8

BILL BRANCH COAL COMPANY,
INC.,
Respondent
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF JOEY F. HALE,
Complainant

Docket No. VA 87-22-D
t\TORT CD 8 7-7

v.
Mine No. 8
BILL BRANCH COAL COMPANY,
INC.,
Respondent
ORDER
Subsequent to a hearing on the merits in these cases, a
Decision was issued on September 29, 1988, finding that Respondent
discriminated against Complainants in violation of section 105(c)
of the Federal Mine Safety and Health Act of 1977. The Decision
further ordered as follows:
"Complainants shall file a statement,
within 20 days of this Decision, indicating the specific relief
requested. The statement shall be served on Respondent who shall
have 20 days, from the date service is attempted, to reply
thereto."
On November 1, 1988, the Secretary filed a statement pursuant
to this Order.
On November 14, 1988, Respondent filed a statement
which indicated that discovery was needed to attempt to resolve the
issues of relief.
On November 21, 1988, in a telephone conference
call both Parties indicated that dispositions would be taken on
January 2, 1989. On January 31, 1989, in a conference call with
both Parties, the attorney for the Secretary advised that Respondent

1324

had filed, in u. S. Bankruptcy Court, for ieorganization pursuant to
Title 11 of the U. s. Code. On February 22, 1989, proceedings
before the Commission in the instant cases were stayed, pending a
determination by the U. S • Bankruptcy Court that the automatic stay
therein does not apply. Subsequently, the U. S. Bankruptcy Court
issued an order relieving the Secretary from the provisions of the
automatic stay. In a conference call on April 16, 1989, between the
undersigned and attorneys for the Secretary and Respondent, the
Parties agreed to discuss settlement of the issues of Complainants'
relief. On April 24, 1989, the attorney for the Secretary advised
that a settlement had been arrived at, and that a signed stipula~ion
would be submitted within 30 days. On June 27, 1989, the attorney
for the Secretary advised the undersigned that it had not yet
received from Respondent a stipulation regarding back pay, although
Counsel for Respondent had assured him that the stipulation would be
mailed June 17, 1989.
In a telephone conference call between the undersigned and
the attorneys for the Secretary and Respondent, it was indicated
that Respondent mailed the stipulation to the attorney for the
Secretary on June 29, 1989, and the latter indicated the stipulation would be filed on July 10, 1989.
The attorney for the Secretary filed the stipulation on
July 13, 1989. The stipulation provides a fair resolution of the
amount of Respondent's financial obligation to Complainants pursuant to
Order of September 29, 1988, contained in the Decision
filed that date, and I adopt it herein.

my

It is therefore ORD~RFO that:
1.

The Stay Order of February 22, 1989, is hereby lifted.

2. The liability of Respondent to Complainants is set forth
in the stipulation filed July 13, 1989, and it ORDERED that the
Parties shall abide by all its terms.

3. The Decision in this matter issued September 29, 1988,
is now FI~AL.

Avram Weisberger
Administrative Law Judge

1325

Distribution:
Mark Malecki, P.sq., Office of the Solicitor, u. S. Department of
Labor, 4015 ~ilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Robert J. Breimann, Esq., Street, Street, Street, Scott & Bowman,
P. o. Box 2100, Grundy, VA 24614 (Certified Mail)
Robert Copeland, Esq., U.S. Bankruptcy Court, Western District
of Virginia, Office of the Clerk, P. o. Box 2390, Roanoke, VA
24010 (Certified Mail)
dcp

1326

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

July 24, 1989

Sl?CR.E'Y'ARY OF LABOR,
MINE SAFRTY AND HEAL~H
ADMTNISTRA~ION CMSHA),
Petitioner

CIVIL PBNALTY PROCF.F.DING
Docket No. PENN 88-260
A. C. No. 36-02685-03506

v.
Coal Junction Coal Company
COAL JUNCTION COAL COMPANY,
INC.,
Respondent
ORDER OF DISMISSAL
Before:

Judge Merlin

Based _upon the Solicitor's motion, this case is hereby
DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Therese I. Salus, Esq., Office of the Solicitor, U. s.
Department of Labor, ~oom 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Leo M. Stepanian, F.sq., Stepanian & Muscatello, 228 South
Main Street, Butler, PA
16001 (Certified Mail)
Mr. ~obert G. Buchleitner, President, Coal Junction Coal
Company, Inc., R.D. #1, Creekside, PA 15732
(Certified
Mail)
/gl

1327

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

July 25, 1989

SFCRF.TARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA~ION (MSHA),
Petitioner

CIVIL PBNALTY PROCBEDING

.

Docket No. LAKF 89-45-M
A. C. No. 47-02651-05501

v.
:
ARTHUR OVBRGAARD-DIV./MA~HY
CONSTRUCTION COMPANY,
Respondent

Portable Perz Plant

.

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

The parties have submitted a motion to approve settlement of the one violation involved in this case. The penalty
was originally assessed at $5,000 and the proposed settlement
is for $3,700.
The parties' motion discusses the violation in light of
the six statutory criteria set forth in section llO(i) of the
Federal Mine Safety_and Health Act of 1977. The subject citation was issued for a violation of 30 C.F.R. § 56.14001
because the 52-inch, self-cleaning tail pulley, on the
crusher discharge belt conveyor, had not been guarded.
An
employee became entangled at the tail pulley and received
fatal injuries. ~he parties represent that the penalty reduction is warranted because negligence which originally was
rated as high, is less than originally thought. According to
the Solicitor the operator demonstrated a moderate degree of
negligence because it should have known the pulley area of
the rock crusher was not guarded properly. However, employees had been directed by the operator not to work or
enter the cited area.
It is not known why this employee was
working in this area. ~he operator promptly abated the violation.
In addition, this is a small operator with no prior
history of violations for the preceding two years. Based
upon the foregoing representations, I approve the recommended
settlement.

1328

Accordingly, the motion to approve settlement is GRAN~ED
and the operator is ORDP.RED ~O PAY $3,700 within 30 days from
the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Susan J. Bissegger, Esq., Office of the Solicitor, U. S. Department of Labor, 230 South Dearborn Street, Chicago, IL
60604 (Certified Mail}
James Naugler, ~sq., Moen, Sheehan, Meyer & Henke, Ltd.,
Arthur Overgaard-Div./Mathy Construction Company, First Bank
Place, Suite 700, Post Office Box 786, La Crosse, WI
54602-0786 <Certified Mail}
Ms. Carol Jensen, Office Manager, P.
53929 (Certified Mail)
/gl

1329

o. Box 128, Elroy, WI

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

July 25, 1989
CIVIL PENALTY PROCEEDINGS

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

SECR~TARY

Docket No. Wf.'VA 89-119
A. C. No. 46-01433-03863
Loveridge No. 22 Mine

v.
CONSOLIDATION COAL COMPANY,
Respondent

.

..

Docket No. WEVA 89-120
A. C. No. 46-01453-03845
Docket No. WEVA 89-121
~. C. No. 46-01453-03846
Humphrey No. 7 Mine
Docket ~o. WEVA 89-122
A. C. No. 46-01968-03794
Blacksville No. 2 Mine
Docket No. WFVA 89-132
A. C. No. 46-01867-03789
Blacksville No. 1 Mine

:

Docket No. WEVA 89-133
A. C. No. 46-01454-03771
Pursglove ~o. 15 Mine
Docket No. WEVA 89-136
A. C. No. 46-01318-03866
Robinson Run No. 95 Mine

DECISION
Appearances:

Nanci A. Hoover, Esq., Office of the Solicitor
u. 8. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Michael R. Peelish, Bsq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Merlin

~he

above-captioned cases were the subjects of prehearing
and hearing orders.
Preliminary statements were filed and a

1330

,,

prehearing conference was held on July 10, 1989. When the cases
came on for hearing on July 11, 1989, counsel for both parties
advised that in one instance the citation was being vacated and
that in the others approval for recommended settlements was being
sought. Cases other than those captioned above were heard on the
merits at the same time.
WFVA 89-119
Section 104(d)(2) Order No. 3106488 was issued for a violation of 30 C.F.R. § 75.303. A preshift examination of a belt
conveyor was inadequate. ~t the hearing the Solicitor advised
that evidence at trial would support the MSHA evaluation of high
gravity and negligence. ~he Solicitor further advised that the
proposed settlement was for the original assessment of $1,000.
Operator's counsel did not object. The settlement was approved
from the bench.
Section 104(d)(2) Order No. 3105859 was issued for a violation of 30 C.F.R. § 75.202. A utility man was observed under
unsupported roof in the 4 left longwall section. The original
assessment was $900 and the recommended settlement was $500. ~he
Solicitor explained that the order was being modified to a 104(a)
citation and that negligence was reassessed as moderate. According to the Solicitor she could not prove the existence of aggravated conduct as required by Commission precedent :tor "unwarrantable failure". Quinland Coals, Inc., 10 FMSHRC 705 (June 1988),
Southern Ohio Coal Co., 10 FMSHRC 138 (Feb. 1988), Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987), Frnery Mining Co.,
9 FMSHRC 1997 (Dec. 1987). The operator's foreman had given the
utility man instructions regarding his work and had left the
area, for a few minutes, which was when the inspector arrived.
The foreman's instructions were general in nature, but could have
been carried out by the utility man without exposing himself to
the unsupported roof. In light of the foregoing circumstances
and mindful of Commission precedent regarding "unwarrantable
failure", the recommended settlement was approved from the bench.
WBVA 89-120
Section 104(d)(2) Order No. 3113143 was issued for a violation of 30 C.F.R. § 75.1403. Intermittent locations between
shields of a longwall face where men traveled were not kept free
of obstructions. Gravity and negligence were rated as high. At
the hearing the Solicitor advised that the proposed settlement
was for the original assessment of $850. Operator's counsel did
not object. ~he settlement was approved from the bench.
Section 104(d)(2) Order No. 3103486 was issued for a violation of 30 C.F.R. § 75.220(a)(l). The approved roof control
plan was violated because supplemental supports were not installed where bad roof conditions were present at a return entry.

1331

The original assessment was $750 and the recommended settlement
was $550. The Solicitor explained that the reduction from the
original assessment was justified because evidence at trial might
not support the inspector's initial evaluation of high operator
negligence.
The inspector thought that chalk marks on broken
timbers in the area indicated the preshift examiner's knowledge
of the missing supports, but other individuals also had chalk and
the examiner_ denied making these marks on the broken timbers.
Based upon the foregoing, I approved the recommended settlement
from the bench.
Section 104(d)(2) Order No. 3103488 was issued for a violation of 30 C.F.R. § 75.1103-4(a)(l).
Automatic fire sensors
were not provided on the 7 North belt for a length of about 450
feet.
The original assessment was $750 and the recommended
settlement was $170. The Solicitor explained that the order was
being modified to a 104(a) citation and that negligence was reassessed as moderate. Further investigation disclosed that the
sensors had been deliberately removed from their locations above
the belt line and thrown into adjacent crosscuts by unknown persons. ~he inspector could not establish how long the sensors had
been missing and the operator was prepared to off er the testimony
of the preshift examiner that all fire sensors were in place when
the preshift examination was performed.
Accordingly, negligence
was less than initially thought and "unwarrantable failure" could
not be found in accordance with Commission precedent. Tn
addition, gravity was somewhat less than the inspector first
estimated because the operator had in place another system which
could detect the by-products of combustion in very small quantities and give a warning to miners working inby the location of
the combustion.
Based upon the foregoing, I approved the
recommended settlement_from the bench.
WEVA 89-121
Citation No. 3103498 was issued for a violation of 30 C.F.R.
This section provides that positive-acting
stopblocks or derails should be used where necessary to protect
persons from the danger of run-away haulage equipment.
Pursuant
to an underlying Notice to Provide Safeguards first issued in
1972, MSHA declined to allow a skid to be used as a positive-acting stopblock.
In the cited condition three mine cars parked in
the fire spur at portal bottom area were blocked with a skid.
~t
the hearing the Solicitor pointed out that a series of administrative law judge decisions over the last several years have been
adverse to MSHA on the way it issues safeguards. Beth Energy
Mines Inc., 11 PMSRRC 942 (May 1989), Southern Ohio Coal Co., 10
FMSHRC 963 (Aug. 1988), U.S. Steel Mining Co., 4 FMSHRC 526
(March 1982). The Solicitor stated that as a result MSHA is reexamining its policy in this area.
Tn light of the foregoing,
the citation was vacated from the bench. The penalty petition is
dismissed insofar as this item is concerned.
§ 75.1403-lO(e).

1332

WF.VA 89-122
Section 104Cd>C2> Order ~o. 2708034 was issued for a violation of 30 C.F.R. § 75.1105. ~he air ventilating the energized
power center on an old longwall section was not coursed directly
into the return. Gravity and negligence were rated as high. At
the hearing the Solicitor advised the proposed settlement was for
the original assessment of $950. Operator's counsel did not
object. ~he settlement was approved from the bench.
Section 104(d)(2) Order ~o. 2944372 was issued for a vio-.
lation of 30 C.F.~. § 75.400. ~loat coal dust had accumulated on
a belt structure and on the water line, and fine coal and dust
had accumulated under the bottom belt of the automatic take up
unit. ~he original assessment was $950 and the recommended
settlement was $400. ~he Solicitor explained that the reduction
was justified because although the inspector estimated that the
conditions took over a month to develop, the operator was prepared to of fer evidence that the condition was not present during
the preshift and that several MSHA personnel recently had been in
the immediate area. ~he Solicitor did not agree with all the
operator's assertions, but she stated she could not dispute the
fact that several inspectors had passed through the area within
the proceeding few weeks.
In addition, the Solicitor could not
dispute that the operator was able to abate the violation within
25 minutes of the issuance of the order. Operator's counsel advised that the case was essentially a factual judgment call and
not of any precedent-setting nature. In light of the foregoing,
the settlement was approved from the bench.
WEVA 89-132
Section 104(d)(2)-0rder ~o. 2943736 was issued for a violation of 30 C.F.R. § 75.316. A bleeder evaluation point on a
longwall previously approved by a district manager had been
changed and relocated by the operator approximately 1000 feet
inby. ~he original assessment was $700 and the recommended
settlement was $500. ~he Solicitor advised that she probably
could not prove that the violation was significant and substantial. She stated that the evidence at trial would demonstrate that the district manager eventually approved the new location used by the operator as the bleeder evaluation point.
Although there is uncontroverted evidence that the gob on the
longwall was not being ventilated as intended by the ventilation
plan and that the direction of the airflow had reversed, the
Solicitor stated she could not demonstrate the failure of the
operator to obtain the district manager's approval for the new
bleeder evaluation point resulted in a reasonable likelihood of
the hazard resulting in an injury.
Tn light of the foregoing,
the settlement was approved from the bench.

1333

WEVA 89-133
Section 104(d)(2) Order ~o. 3103459 was issued for a violation of 30 C.F.R. § 75.400. Combustible material in the form
of loose coal, coal dust, and float coal dust had accumulated
under the bottom belt between the tension rollers and under the
drive unit of a drive belt. Gravity and negligence were rated as
high. At the hearing the Solicitor advised that the proposed
settlement was for the original assessment of $900. Operator's
counsel did not object. ~he settlement was approved from the
bench.
Section 104Cd)(2) Order No. 3103460 was issued for a violation of 30 C.F.R. § 75.303.
Adequate preshift examinations had
not been made on certain belts. ~he original assessment was
$1,000 and the recommended settlement was $700. ~he Solicitor
advised the reduction was justified because evidence at trial
might not support the inspector's evaluation of the operator's
negligence. Although there is no doubt that there were hazardous
conditions and violations, MSHA's witness had no first hand
knowledge of the extent of these hazardous conditions during the
preshift examination and could only have expressed the opinion
that the conditions were obvious at the time of the preshift
examination. ~he operator would offer testimony of the preshift
examiner to controvert the Secretary's opinion evidence. In
light of the foregoing, the settlement was approved from the
bench.
WEVA 89-136
Section 104(d)(2) Order No. 3119427 was issued for a violation of 30 C.F.R. § 75.202(b). According to the Solicitor the
approved roof control plan was not being complied with because
supplies were being stored in the face of the heading by persons
who traveled under unsupported roof. Operator's counsel
expressed the view that miners were not under unsupported roof
but he did not believe this case was an appropriate vehicle to
test this issue which is being presented in other cases. The
Solicitor advised that the proposed recommended settlement was
for the original assessment of $1,000. Operator's counsel did
not object. The settlement was approved from the bench.
ORDER
Tt is ORDFRFO that Order ~os. 3105859 and 3103488 be
MOD1FIFD to 104(a) citations.
Tt is further ORDRRFD that Citation ~o. 3103498 be VACA~~D.

1334

tn light of the foregoing, it is further ORDBRFD that the
proposed settlements be APPROVBD and the following amounts be
ASSF.SSF'D:
Citation or Order No.

A.mount

3106488
3105859
3113143
3103486
3103488
3103498
2708034
2944372
2943736
3103459
3103460
3119427

$1,000
$ 500
$ 850
$ 550
$ 170
VACATED
$ 950
$ 400
$ 500
$ 900
$ 700
$1,000
$7,520

Tt is further ORD~RED that the operator PAY $7,520 within 30
days from the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Nanci A. Hoover, Bsq., Office of the Solicitor, U. s. Oepartment
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Michael R. Peelish, Fsq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified
!\iail >
Basil Callen, UMWA, 309 Wagner Road, Morgantown, WV
(Certified Mail)

26505

Robert Strapp, Esq., UMWA, 900 15th Street, N.W., Washington, DC
20005
(Certified Mail)
/gl

1335

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

22041

JUL 2 7 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 89-54-M
A.C. No. 16-00970-05610-A
Docket No. CENT 89-60-M
A.C. No. 16-00970-05613-A

CARL A. JOHNSON, Employed by
MORTON SALT DIVISION/
MORTON THIOKOL INC.,
Respondent

Morton Salt Weeks Island Mine

DECISIONS APPROVING SETTLEMENTS
Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the individually named
respondent pursuant to section llO(c) of the Federal Mine Safety
and Health Act of 1977, for allegedly "knowingly" authorizing,
ordering, or carrying out, two alleged violations of certain
mandatory safety standards found in Part 57, Title 30, Code of
Federal Regulations. The respondent has filed answers to the
proposals, and the petitioner has filed a settlement motion
pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, seeking
approval of a proposed settlement of the cases. The violations,
initial assessments, and the proposed settlement amounts are as
follows:
Docket No. CENT 89-54-M
30 C.F.R.
Section

Assessment

Settlement

57.9003

$400

$200

30 C.F.R.
Section

Assessment

Settlement

57.11050

$400

$200

Order No.
2866484

08/25/87

Docket No. CENT 89-60-M
Order No.
2866117

08/25/87

1336

Discussion
In support of the proposed settlement disposition of these
cases, the petitioner has submitted information pertaining to the
civil penalty criteria found in section llO(i) of the Act.
Additional information provided by the petitioner reflects that
the respondent is no longer employed by Morton Thiokol, Inc., and
has moved from LaFayette, Louisiana, to Butte, Montana. The
respondent states that he is unemployed. Under these circumstances, the petitioner submits that the proposed settlement
disposition of these cases is fair and reasonable, fully takes ·
into consideration the criteria under section llO(i) of the Act,
and is in the public interest.
The petitioner states that the respondent proposes to pay
the settlement amount of $400 in monthly installments, and has
tendered the first installment of $135 with his settlement letter
of July 13, 1989, a copy of which is included with the petitioner's settlement motion. The remaining two installments of
$132.50 each will be paid over the next 2 months.
Conclusion
After careful review and consideration of the pleadings,
arguments, and submissions in support of the motion to approve
the proposed settlement of these cases, I conclude and find that
the proposed settlement dispositions are reasonable and in the
public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30,
the motion filed by the petitioner IS GRANTED, and the settlements ARE APPROVED.
ORDER
The respondent IS ORDERED to pay the agreed-upon civil
penalty assessments in the aforementioned amounts, and in accordance with the aforementioned payment schedule agreed to by the
parties. This decision will not become final until such time as
full payment is made by the respondent to the petitioner, and I
retain jurisdiction in this matter until payment of all installments are remitted and received by the petitioner.
In the event the respondent fails to make full payment, or
otherwise fails to comply with the terms of the settlement,
petitioner is free to file a motion seeking appropriate sanctions
or further action against the respondent, including a reopening
of the cases.
/

,/{i/1/
,/'/.// ~~
(/,/;'-· -/ .. · /;, it';,.(:"';'-~ -[7,~
._Geo·rg~l'A. Koutras
' Administrative Law Judge

1337

Distribution:
J. Philip Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Mr. Carl A. Johnson, 3335 Keokuk Street, Butte, MT 59701
(Certified Mail)
/fb

1338

·~

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

July 27, 1989
CIVIL PENALTY PROCEEDING

OF LABOR,
MINE SAFE~Y AND H~ALTH
ADMINISTRATION (MSHA),
Petitioner

SECR~TARY

Docket No. KENT 89-12
A. C. No. 15-16216-03502

v.
No. 1 Mine
GEORGE'S BRANCH COAL,
Tl'JCORPORAT~D,

"R.espondent
ORDF.R OF DEFAULT
On October 11, 1988, you signed a notice of contest (blue
card) telling the Mine Safety and Health ~drninistration (MSHA)
that you wanted a hearing on the penalty which MSHA proposed.
~he Secretary of Labor has certified that the Proposal in this
case was mailed November 14, 1988.
Subsequent to filing the Proposal, the Solicitor in a letter
dated February 1, 1989, stated tnat based on a January 31, 1989,
telephone conversation with you she was forwarding a draft of a
Joint Motion to Approve Settlement formalizing your negotiated
settlement. You were to review this document and then return a
signed copy to the Secretary.
On April 13, 1989, the Solicitor
orally advised she had not received the signed copy or heard
from you since the January 31, telephone conversation.
Thereafter, on May 12, 1989, you were ordered to answer or
show cause for your failure to do so.
You were told that if you
did not comply you would be held in default.
~he Solicitor has now filed a motion for default.
In her
motion the ~olicitor states that on July 12, 1989, MSHA advised
that they had received a check from you in the amount of $441.33.
However, the Solicitor states that this represents payment of
only one-third of the originally assessed amount and that no
settlement was entered into reducing the original penalty. You
cannot resolve this matter by deciding on your own initiative
what amount you wish to pay without agreement by the Solicitor
and approval by the Commission. Pinally, you have not complied
with the May 12 show cause order.
Consequently, the Solicitor
and this Commission have been forced to spend an inordinate
amount of time on this matter.

1339

Accordingly, judgment by default shall enter in favor of the
Secretary.
As a result, you are hereby ORDFR~D ~O PAY the sum of
$882.67 immediately.

\

\
Paul Merlin
Chief Administrative Law Judge

Distribution:
Ann T. Knauff, Esq., Office of the Solicitor, U. s. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, ~N 37215
(Certified Mail)
Mr. David s. Strong, owner, General Delivery, Whick, KY
(Certified Mail)
/gl

1340

41390

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

22041

JUL 27 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION. (MSHA),
ON BEHALF OF ROBERT VAUGHN,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. KENT 89-28-D

SUMCO, INC. AND R.E. SUMMERS,
Respondents
SUPPLEMENTAL DECISION AND ORDER
Appearances:

Before:

Mary K. Spencer, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
on behalf of Complainant; Rodney E. Buttermore,
Jr., Esq., Forester, Buttermore, Turner & Lawson,
Harlan, Kentucky, on behalf of Respondents.

Judge Broderick

On June 2, 1989, I issued a Decision on the merits in the
above proceeding.
I directed the parties to attempt to
stipulate as to the monetary amount due complainant Vaughn
under the decision. Should they fail to stipulate, I directed
the Secretary to submit a statement of the amount claimed due.
Respondents were given ten days to respond to the statement.
On July 7, the Secretary filed a statement of the amount
she contends is due under the decision with interest to
July 15, 1989. Respondents did not reply to the statement.
Consioering the entire record and the parties contentions,
Respondents are ORDERED:
1. To pay to Complainant Vaughn within 30 days of the
date of this order the sum of $4470.93, representing back
wages from June 30, 1988 to December 4, 1988, which amount
includes interest to July 15, 1989.
2. To pay interest at the rate of 1.38 per day after
July 15, 1989, until the total amount due is paid.
3. To pay to the Secretary, within 30 days of the date
of this order, a civil penalty in the amount of $100.

1341

j

,\

.• 1
'

'

4. This order supplements the decision issued June 2,
1989, and with that decision represents my final decision and
order in this proceeding.

~~

James A. Broderick
Administrative Law Judge
Distribution:
Mary K. Spencer, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 {Certified
Mail)
Rodney E. Buttermore, Jr., Esq., Forester, Buttermore, Turner &
Lawson, P.S.C., P.O. Box 935, Harlan, KY 40831 {Certified Mail)
Mr. Robert Vaughn, P.O. Box 273, Kenvir, KY 40847 {Certified Mail)
slk

1342

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

SECRE'r AR.Y OF .LABOR,
MINE SAFETY AND HEALTH
A.DMINISTRATI01\J (MSHA) ,

CIVIL PENALTY PROCEEDING

Petitioner

Docket No. KBNT 89-19
A.C. 1\Jo. 15-13469-03687

RIVBR COAL CO., INC.,

Docket No. KBNT 89-76
~.c. No.
15-13469-03693

v.
G~EF.N

Respondent
DF.CISION
Appearances:

Before:

Joseph B. Luckett, Bsq., Office of the Solicitor,
U.S. Department of Labor, ~ashville, Tennessee,
for the Secretary of Labor (Secretary);
B. R. Paxton, Esq., Paxton & Kusch, Central City,
Kentucky for Green River Coal Co., 1nc. (Green
River).

Judge Broderick

STATEMBNT OF THE CAS"P
The Secretary seeks civil penalties for six alleged
violations of mandatory safety standards contained in the above
dockets. The alleged violations involve the same mine and were
consolidated for the purposes of hearing and decision.
Pursuant
to notice, the consolidated cases were heard in Owensboro,
Kentucky on June 7, 1989. Lewis Stanley, James l?. Ranks,
Michael V. Moore, and Bobby Clark testified for the Secretary •
.Jessie W. Campbell and Mike McGregor testified for Green River.
Both parties filed post hearing briefs limited to the legal
question whether order ~o. 3227685 was properly modified after
its termination.
I have considered the entire record and the
contentions of the parties in making this decision.
FI~DINGS

OF FACT

FINDINGS COMMON TO ALL VIOLATIONS
1. Green River is the owner and operator of an underground
coal mine in Hopkins County, Kentucky known as the No. 9 Mine.
2. Green Piver employs approximately 200 miners, and
produces approximately one million tons of coal annually.

1343

3. The subject mine liberates in excess of one million
cubic feet of methane in a 24 hour period.
4.
During the 24 month period from June 23, 1986 to
June 22, 1988, Green River had 1,059 paid violations of mandatory
standards. Of these, 80 were violations of 30 C.F.R. § 75.301,
13 were violations of 30 C.F.R. § 75.302, 8 were violations of 30
C.F.R. § 75.1710, and 73 were violations of 30 C.F.R. § 75.503.
This is a substantial history of prior violations, and penalties
otherwise appropriate will be increased because of it.
·f.' :'
.,_r.

5. All of the violations charged in these proceedings were
abated promptly in good faith.
CITATIONS 3228886

A~D

3228887

An explosion occurred in the subject mine at about 10:30
a.m., on June 23, 1988, at the crosscut right off the Wo. 2 entry
in the 003 section, while coal was being loaded. The ignition
was of short duration and self-extinguishing. It resulted in
first and second degree burns to the loader operator.
When the Federal mine inspector arrived at the scene at
about noon, he discovered that the line curtain for the crosscut
was installed 22 feet from the toe of the coal. The section
foreman was present.
He testified at the hearing that a line
curtain had been installed about 7 or 8 feet from the coal face
but apparently had been removed prior to the explosion.
The mine has a history of methane liberation and has
experienced prior ignitions or explosions at the face.
Many
citations for ventilation violations had been issued to the mine.
Methane was found at the site of the explosion ranging from 1.6
to 2 percent.
The approved ventilation plan for the subject mins requires
that in working faces there shall be a minimum of 3000 cubic feet
of air in each working face where coal is being cut, mined or
loaded.
The inspector checked the air flow at about 12:15 p.m. on
June 23, 1989, and found only 1800 cubic feet a minute of air
reaching the end of the line curtain in cross cut right off the
No. 2 entry in 003 section.
The inspector issued a section 107(a) imminent danger
closure order and two section 104(a) citations, charging
violations of 30 C.F.R. § 75.302-1 and § 75.301-1.

1344

The order and the citations were terminated the same day
they were issued, when a line curtain was installed to the toe of
the coal, the air increased to 3825 cubic feet a minute, and the
methane reduced to .2 percent.
CITATION 3228988 AND ORDERS 3228563 AND 3228564
The coal seam height in the subject mine varies from 54
inches to about 60 inches. Therefore it has been required since
January 1, 1975, to have substantially constructed canopies or
cabs on all self propelled electric face equipment employed in
active workings.
The subject mine has a generally poor roof condition.
has had 88 reported roof falls.

It

On March 18, 1988, a Federal coal mine inspector saw a
cutting machine being operated without a canopy over the operator.
The canopy was loose--the bolts holding it were backed off and
the hudraulic mounting alignment brackets were broken off • . The
machine operator stated that he did not use the canopy because of
the danger that it would fall on him.
In the inspector's
judgment, the condition had existed for a considerable period of
time--certainly for more than one shift. The roof in the .area
was in good condition.
The inspector issued a section 107(a) imminent danger
closure order and a section 104(a) citation (3228988) charging a
violation of 30 C.F.R. § 1710. He had issued another citation
for a cutting machine without a canopy only a short time prior to
this.
The citation was terminated the same day when the bolts on
the canopy were tightened, the brackets were welded back on, and
the canopy positioned over the operator.
On August 22, 1988, a Federal mine inspector observed a
loading machine being operated at or near the last open crosscut,
with its canopy swung around over the tram motor.
It was not
over the operator of the loader. The pin which held it from
swinging away from the operator had been removed. ~o roof
problems were noted in the area at the time. The insoector
issued a section 104(d)(l) order at 9:40 a.ill., chargi~g a
violation of 30 C.F.R. § 75.1710. The order was terminated at
10:15 a.m. the same day when the canopy was moved back over the
operator, and the pin replaced.
At 10:25 a.m. the same day, the same inspector noticed a
cutting machine in the ~o. 5 entry of the No. 5 unit, on which
the canopy was swung away from the operator and positioned over

1345

the wheel of the cutter. Order 3228563 was issued charging a
violation of 30 C.F.R. § 75.1710. The order was terminated at
about 11:00 a.m. the same day when the canopy was placed over the
cutter operator and the pin put in place.
~espondent has regular safety meetings with its employees,
and has instructed them of the requirements for maintaining
canopies on electric face equipment when operating inby the last
open crosscut.

ORDF.R 3227686
On August 12, 1988, a Federal coal mine inspector was in the
No. 3 Unit of the subject mine when the power was shut off
because of a ventilation problem. He noticed four 110 volt pumps
pumping water inby the last open break. These were
nonpermissible pumps, and were pumping water to a 480 volt
permissible pump. Coal was being produced until the power was
shut off. The highest methane reading in the area was .4%. The
inspector issued a section 104(d)(l) order (3227686) charging a
violation of 30 C.F.R. § 75.507. A citation had been isued about
two months previously, and an order about six weeks previously
for essentially the same conditions. The order was terminated at
10:30 a.m. the same day when the pwnps were removed outby the
last open crosscut.
The order was modified on April 24, 1989, to correct the
standard allegedly violated from § 75.507 to § 75.503.
REGULATIONS
30 C.F.R. § 75.302-1 provides in part:
§ 75.302-1
devices.

Installation of line brattice and other

Ca) Line brattice or any other approved device used to
provide ventilation to the workin3 face from which coal
is being cut, mined or loaded and other working faces
so designated by the Coal Mine SaEety Manager, in the
approved ventilation plan, shall oe installed at a
distance no greater than 10 feet from the area of
deepest penetration to which any portion of the face
has been advanced unless a greater distance is approved
by the Coal Mine Safety District Manager of the area in
which the mine is located.
30 C.F.R. § 75.301-1 provides:
§ 75.301-1

Quantity of air reaching working face.

1346

A minimum quantity of 3,000 cubic £eet a minute of air
shall reach each working face from which coal is being
cut, mined or loaded and any other working face so
designated by the District Manager, in the approved
ventilation plan.
30 C.F.R. § 75.1710 provides in part:
An authorized representative of the Secretary may
require in any coal mine where the height of the
coalbed permits that electric face equipment, including
shuttle cars, be provided with substantially
constructed canopies, or cabs, to protect the miners
operating such equipment from roof falls and from rib
and face rolls.
§ 75.1710-1

Canopies or cabs; self-propelled electric
face equipment; installation requiraments.

(a) Except as provided in paragraph Cf) of this
section, all self-propelled electric face equipment,
including shuttle cars, which is employed in the active
workings of each underground coal mine on and after
January 1, 1973, shall, in accordance with the schedule
of time specified in paragraphs (a)(l), (2), (3), (4),
(5), and (6) of this section, be equipped with
substantially constructed canopies or cabs, located and
installed in such a manner that when the operator is at
the operating controls of such equipment he shall be
protected from falls of roof, face, or rib, or from rib
and face rolls. the requirements of this paragraph (a)
shall be met as follows:
Cl) On and after January 1, 1974, in coal mines
having mining heights of 72 inches or more;
(2) On and after July 1, 1974, in coal mines having
mining heights of 60 inches or more, but less than 72
inches;
(3) On and after January 1, 1975, in coal mines
having mining heights of 48 inches or more, but less
than 60 inches;
(4) On and after July 1, 1975, in coal mines having
minihg heights of 36 inhes or more, but less than 48
inches;
30 C.F.R. § 75.507 provides in part:
Bxcept where permissible power connection units are
used, all power-connection points outby the last open
crosscut shall be in intake air.

1347

§ 75.507-1
Electric equipment other than
power-connection points; outby the last open crosscut;
return air; permissibility requirements.

(a) All electric equipment, other than
power-connection points, used in return air outby the
last open crosscut in any coal mine shall be
permissible except as provided in paragraphs (b) and
(c) of this section.
30 C.F.R. § 75.503 provides:
§ 75.503
Permissible electric face equipment;
maintenance.

[STATUTORY PROVISIONS]
The operator of each coal mine 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.
CONCLUSIONS OF LAW
JURISDICTION
Respondent Green River is subject to the provisions of the
Federal Mine Safety and Health Act of 1977 (the ~ct) in the
operation of the No. 9 Mine.
I have jurisdiction over the
parties and subject matter of this proceeding.
VENTILATION VIOLATIONS
Green River does not seriously contest the violations
charged as a result of the investigation of the explosion on
June 23, 1988. It suggested that the line curtain might have
come down as a result of the explosion, but its own witness, the
section foreman, did not support this suggestion. The evidence
clearly establishes that the line curtain was not hung to within
10 feet of the face, and that the airflow at the end of the line
curtain was substantially less than required. Violations of 30
C.F.R. § 75.302-1 and § 75.301-1 were clearly established.
Because the mine liberates ~ore than one million cubic feet of
methane in a 24-hour period, and has a history of face ignitions,
the viol:itions were extre~ely serious.
In fact, they resulted in
an explosion and an injury to a miner.
Both conditions should
have been ascertained by management, especi:illy given the mine's
history.
I conclude that they resulted from Green River's

1348

negligence. Considering the criteria in section llO(i) of the
~ct, the proposed penalties of $1400 for each violation are
appropriate.
CANOPY VIOLATIONS
The roof in the subject mine is unstable. Eighty eight roof
falls have been reported to MSHA. The canopy requireinent has
applied to the subject mine since 1975. The three alleged
violations were clearly established: the equipment involved,
all items of electric face equipment, were used inby the last
open crosscut. The violations were all very serious:
that
involving the cutting machine (Citation 3228988) was especially
aggravated, since the operator was in jeopardy if he used the
canopy or if he did not use the canopy. All of the violations
were ~nown or should have been known to mine management. They
resulted from Green River's negligence. Considering the criteria
in section llO(i) of the Act, $1,000 for the violation cited in
citation 3228988 and $800 for each of the violations cited in
orders 3228563 and 3228564 are appropriate penalties.
PERMISSIBILITY VIOLATION
Respondent does not contest the facts that on August 12,
1988, there were four 110 volt nonpermissible pumps pumping water
inby the last open crosscut. Neither does it deny that these
facts establish a violation of 30 C.F.R. § 75.503. Rather, it
argues the modification of the citation on April 24, 1989, was
improper and that it does not coinport with the mandate of the
statute that a copy of the order be given promptly to the mine
operator.
There was no question at the time the order 3227686 was
issued that Green River was being charged with operating
nonpermissible electric face equipment in and inby the last open
crosscuts (a violation of 30 C.F.R. § 75.503). It was not
charged, nor did it offer evidence to indicate that it believed
it was charged with operating nonpermissible electric face
equipment in return air~ourses (a violation of 30 C.F.R.
§ 75.507-1).
The violation was abated by removing the pumps
outby the last open crosscut. Respondent was not misled. See
Secretary v. U.S. Steel Mining Co., Inc., 6 FMSHRC 722 (1984)
(ALJ).
I conclude that a violation has been established, and the
modification of the order does not vitiate it.
The violation was serious. Green River ~o. 9 is a gassy
mine, and an arc from one of the oumos could cause an ignition or
explosion if it contacted a metha~e buildup. The violation was
obvious and Green ~iver was aware or should have been aware of it.
I conclude that it resulted from Green River's negligence.

1349

Considering the criteria in section llO(i) of the Act, $1500 is
an appropriate penalty for the violation.
ORDBR
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1.

Citations 3228886, 3228887 and 3228988 are AFFIRMED.

2.

Orders 3228563, 3228564 and 3227686 are AFFIRMED.

3. Respondent shall within 30 days of the date of this
decision pay the following civil penalties for the violations
found:
CITATION OR ORDER

PENALTY

3228886
3228887
3228988
3228563
3228564
3227686

$1400
1400
1000
800
800
1600
$7000

TOTAL

d~dvt~~
es A. Broderick
.Administrative Law Judge
Distribution:
Joseph B. Luckett, Esq., U.S.
Department of Labor, Office of the
Solicitor, 2:002 "Richard Jones R.oad, Su1te B-201, ~ashville, T'N'
37215 (Certified Mail)
B. R. Paxton, ~sq., Paxton & Kusch, P.S.C., 213 East Broad
Street, P.O. Box 655, Central City, KY 42330 (Certified Mail)
slk

1350

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

22041

JUL 311989
CIVIL PENALTY PROCEEDINGS

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

Docket No. SE 88-59-M
A.C. No. 54-00289-05503
Docket No. SE 89-23-M
A.C. No. 54-00289-05504

DILLINGHAM CONSTRUCTION
INTERNATIONAL,
Respondent

Cerrillos Dam Project
DECISIONS

Appearances:

William G. Staton, Esq., Office of the Solicitor,
U.S. Department of Labor, New York, New York, for
the Petitioner;
Anibal Irizarry, Esq., McConnell, Valdes, Kelley,
Sifre, Griggs & Ruiz-Suria, San Juan, Puerto Rico,
for the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 820(a), seeking civil penalty assessments for
nine alleged violations of certain mandatory safety standards
found in Part 56, Title 30, Code of Federal Regulations. The
respondent filed timely contests and answers, and hearings were
held in San Juan, Puerto Rico. The parties filed posthearing
briefs, and their respective arguments have been considered by me
in the course of my adjudication of the cases.
I have also
considered the oral arguments made by the parties at the
hearings.
Issues
The respondent takes the position that it is a construction
contractor, who at the time of the MSHA inspections in question,
was engaged in the process of constructing a dam pursuant to an
agreement with the Government of Puerto Rico and the U.S. Corps
of Engineers. Respondent denies that it operates a "mine" within
the jurisdiction of the Act, and asserts that its work associated
with the dam project in question is within the enforcement

1351

jurisdiction of the Commonwealth of Puerto Rico Occupational
Safety and Health Administration (hereinafter PR-OSHA).
The respondent maintains that any minerals taken and used in
the construction of the dam have been "excavated" rather than
"extracted," and that it does not engage in any "mining or
milling" activities which would bring its construction activities
within the jurisdiction of the Act, and within MSHA's mine
enforcement jurisdiction. In support of its position, the
respondent relies on an MSHA/OSHA Interagency Agreement, and
several MSHA policy directives issued with respect to this
agreement.
Assuming that the respondent is subject to the Act and to
MSHA's enforcement jurisdiction, the additional issues presented
are (1) whether the respondent violated the cited standards, and
if so, the appropriate civil penalties which should be assessed
taking into account the civil penalty assessment criteria found
in section llO(i) of the Act; and (2) whether several of the
alleged violations were "significant and substantial" (S&S).
Applicable statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seq.
2.

Commission Rules, 29 C.F.R.

3.

Part 56, Title 30, Code of Federal Regulations.

§

2700.1, et seq.

Stipulations
The parties stipulated to the following:
1. The respondent's size consists of 102,559 manhours worked per annum.
2. The respondent's history of prior violations
consists of 10 assessed civil penalty assessments made
by MSHA in 1987.
3. Payment of the proposed civil penalty
assessments for the violations in issue in these
proceedings will not adversely affect the respondent's
ability to continue in business.
Discussion
All of the contested section 104(a) citations in these
proceedings were issued by MSHA Inspector Roberto Torres Aponte,
after the completion of his inspection of the dam site in question on August 31 and September 1, 1987. Although the citations

1352

are dated September 1, 1987, Inspector Torres confirmed that he
actually wrote them on September 2, 1987, the day following his
inspection, and that he served them on respondent's representative Ike Tabor during a close-out conference held that day.
Mr. Torres further confirmed that during the course of his
inspection he discussed each of the cited conditions with
Mr. Tabor and informed him of the violations and the fact that he
would issue the citations. Mr. Torres further explained that his
normal procedure is to write up and serve any citations on the
mine operator at the conclusion of his inspection and during the
close-out conference. The citations issued by Mr. Torres are as
follows:
Docket No. SE 88-59-M
Non-"S&S" Citation No. 2858999, 30 C. F.R. 57 .14001.
"The
No. 3 feeder motor belts were not guarded, maintenance is done in
the area where the equipment is shutted (sic) off."
"S&S" Citation No. 2859000, 30 C.F.R. § 56.11002.
"The
walkway around the No. 3 feeder was not provided with hand rails
around it exposing maintenance employees to fall from approx.
12 ft. to the lower level. Three employees were working in the
area."
"S&S" Citation No. 2859001, 30 C.F.R. § 56.14001.
"The
No. 5 conveyor belt counterweight pulley was not guarded.
It is
located 'near the walkway where persons walk and are exposed to
become caught between the belt and pulley."
Non-"S&S" Citation No. 2859002, 30 C.F.R. § 56.11002.
"The
No. 6 feeder platform was not provided with handrails. The area
is not used on a regular basis."
Non-"S&S" Citation No. 2859003, 30 C.F.R. § 57.14001.
"The
No. 7 conveyor belt tail pulley was not guarded.
Cleaning and
maintenance is done in the area when the equipment is
shutted (sic) off."
"S&S" Citation No. 2859004, 30 C.F.R. § 56.9007.
"The No. 8
conveyor belt emergency stop cord was broken loose exposing the
persons who walk in the walkway to the hazard.
The walkway is
used on a regular basis by employees."
Non-"S&S" Citation No. 2859005, 30 C.F.R. § 56.14001.
"The
No. 9 conveyor belt tail pulley was not guarded.
Cleaning and
maintenance is done in the area when the equipment is
shutted (sic) off."
Non-"S&S" Citation No. 2859006, 30 C.F.R. § 56.14001.
No. 10 conveyor belt counterweight pulley was not guarded.

1353

"The

Cleaning and maintenance is done in the area when the equipment
is shutted (sic) off."
Docket No. SE 89-23-M
"S&S" Citation No. 2859007, 30 C.F.R. § 56.15003.
"Several
employees were not wearing safety shoes in the rock plant, being
exposed to have feet injuries or fractures."
Petitioner's Testimony and Evidence
Inspector Torres testified with respect to his training and
experience, and he confirmed that he has served as an inspector
for 11 years, and was previously employed at a cement plant for
8 years. He confirmed that in response to a September 22, 1986,
letter from the respondent's Project Manager Lars Johansson,
requesting a "CAV" or compliance assistance visit, he visited the
"extraction area" at the dam construction site on November 4,
1986. Mr. Torres explained that such visits are normally made
while an operator is making equipment adjustments, but before the
start of any full production. During the visit in question,
Mr. Torres inspected all of the equipment at the site, and discussed with mine management several violative conditions concerning equipment guarding, berms, safe access, walkways, safety
shoes, and handrails, and made recommendations concerning
corrective action.
Mr. Torres stated that the conditions he found during his
initial CAV inspection were "Non-civil penalty violations" for
which the respondent was given a reasonable time to correct
before an MSHA inspector returns to the site for a regular
inspection.
Mr. Torres stated that during his CAV inspection he found
that limestone was being extracted by the respondent by blasting.
The limestone was then trucked to the primary crusher and screening plant where it was sized or separated into smaller rock by
means of two grizzles. The processed materials were then used in
the construction of the dam. Mr. Torres stated that the primary
crusher operation and extraction area were located approximately
1,500 feet from the actual dam construction site, and that the
screening station was approximately 200 feet from the primary
crusher.
Mr. Torres stated that the respondent used explosives,
bulldozers, front-end loaders, haulage trucks, primary crusher
and screening conveyor belts, and two grizzles during the limestone extraction and processing activity. He stated further that
a conveyor belt located at the primary crusher transferred the
excavated limestone and rock to the screening station where four
screens were used to separate small stones from the larger ones,
and that the resulting crushed rock was used in "layers" to

1354

construct the dam. He also confirmed that some of the processed
materials were used to produce concrete or sand, and that all of
the materials were ultimately used for in the construction of the
dam.
In addition to the excavated rock and limestone which was
processed at the dam construction excavation area, Mr. Torres
stated that the respondent used raw materials which it purchased
from other area quarries for the construction of the dam. He
described this material as "white marble-like stone" which was
not excavated at the same site, and he confirmed that it was
"trucked in." He determined that these other materials were
brought to the site through visual observation of the material
which was stockpiled at the excavation area of the dam construction site.
Mr. Torres characterized the work being performed at the
excavation area in question as a milling operation, and he confirmed that according to an MSHA report which was filed by the
respondent, 32 of the respondents' employees were engaged in work
connected with this milling operation.
He did not know the total
number of employees who were working at the site.
Mr. Torres identified the bulldozers used by the respondent
as Caterpillar "cats" or "dozers," and he confirmed that the
other equipment which he previously identified, including the
bulldozers, were all manufactured outside of Puerto Rico in "the
states."
Mr. Torres stated that subsequent to his initial CAV inspection, he next visited the dam construction excavation area on
February 9 and 10, 1987, to conduct a regular inspection. The
first day he was alone, and the second day he was accompanied by
MSHA Inspector Augusto Perez.
During these visits, Mr. Torres
confirmed that he observed the same milling activities, i.g.,
limestone extraction, crushing, and screening, and they were
similar to the activities taking place during his prior CAV
inspection.
Mr. Torres stated that during his inspection of February 9
and 10, 1987, he issued several citations to the respondent, and
after proposed civil penalty assessments were made by MSHA for
these violations, the respondent paid the assessments and the
citations were terminated.
Mr. Torres stated that his next visit to the dam excavation
area took place on June 29, 1987, when he went there for a "compliance follow-up inspection" to ascertain whether the prior
violative conditions were corrected by the respondent.
At this
time only the primary crusher was in operation, but a new secondary crushing plant was being constructed by the respondent in

1355

order to produce finer rock material to be used in the construction of the darn.
Mr. Torres stated that he next visited the darn excavation
area on August 31, and September 1, 1987, when he conducted
another regular inspection. He inspected the primary crusher and
screening plant, and conducted noise sampling surveys on some of
the equipment.
Since the secondary crushing plant was still
under construction, he did not inspect it. Mr. Torres confirmed
that Mr. Ike Tabor, the respondent's "excavation area" manager,
accompanied him during the inspection and that he discussed each
of the citations which he issued with Mr. Tabor.
Mr. Torres confirmed that subsequent to his inspections of
August 31, and September 1, 1987, he held a "closing conference,"
with Mr. Tabor, Mr. Johansson, MSHA Inspector Brian Smith, and
the respondent's project safety engineer Gerald R. Fulghum, and
that Mr. Fulghum advised him that the equipment guards which were
the subject of Citation Nos. 2858999, 2859003, 2859005, and
2859006, had been removed in order to be repaired, but that the
repair work had not been completed and the guards were not
replaced. Mr. Fulghum subsequently mailed in a "note" to his
off ice explaining the circumstances under which the guards had
been removed.
Citation No. 2858999
Mr. Torres stated that the cited feeder motor belts were
located at the third level of the primary screen station. The
motor is used for the vibrating screens, and employees need to be
there on a daily basis to clean any spillage from the floors.
Access to the cited location is by means of a ladder way.
Mr. Torres confirmed that he observed the condition at 8:30 a.rn.,
on September 1, 1987, and that the plant was not in operation at
that time, and the motor was shutdown. The plant was put in
operation between 11:00-11:30 a.rn.
Mr. Torres stated that he made a gravity finding of
"unlikely" because the plant is shutdown and locked out when
clean-up or maintenance work is performed. Although he observed
no one at the cited location, Mr. Torres believed that at least
one individual would be in the area for inspection once the plant
was started up.
In the event someone were to be caught in the
unguarded motor belts, they could lose a finger or an arm or
suffer disabling injuries.
Mr. Torres confirmed that he made a negligence finding of
"moderate" because he believed that a supervisor should have been
aware of the unguarded belts, and similar belts in the plant were
guarded. Mr. Torres did not believe the violation was "significant and substantial" because the plant was shutdown when cleanup

1356

or maintenance was performed. He also confirmed that the citation was terminated at a later time by another inspector.
Citation No. 2859000
Mr. Torres stated that the cited feeder walkway was located
at the third level of the screening station tower, and that it
was elevated approximately 12 feet above the next lower level.
Mr. Torres stated that plant manager Ike Tabor, who accompanied
him during his inspection, informed him that the platform where
the walkway was located was constructed for the purpose of main-taining the No. 3 feeder, but that handrails were not installed.
Mr. Torres confirmed that when he observed the condition at
8:10 a.m., the plant was down and the feeder was not in
operation. He observed three employees in the area performing
clean-up and maintenance work, and Mr. Tabor informed him that
they were employees of the respondent.
Mr. Torres confirmed that he made a gravity finding of
"reasonably likely" because someone could fall off the elevated
unguarded platform at any time, and if they did, they would
likely suffer fatal injuries. He believed the violation was
"significant and substantial" because of the high probability of
an accident which could result in a fatality.
Mr. Torres confirmed that he made a negligence finding of
"moderate" because similar platform areas were guarded with
handrails and this should have alerted a supervisor of the need
to provide the required handrails.
Citation No. 2859001
Mr. Torres stated that the cited No. 5 conveyor belt counterweight pulley was not guarded when he observed it at 8:30 a.m.
The belt was used to transport material and it was elevated and
located approximately 20 to 25 feet above ground. A walkway was
next to the unguarded pulley, and the unguarded area was approximately 8 inches from the edge of the walkway.
Employees would
regularly walk by the unguarded pulley because the walkway provided an access way to the transfer point behind the pulley.
Mr. Torres confirmed that the plant was shutdown and the
belt was not in operation when he observed the condition. However, once the plant is put into operation at approximately
11:00 a.m., employees would regularly be using the walkway adjacent to the unguarded pulley. Given the fact that the pulley was
36 inches long and 12 to 15 inches wide, experience has shown
that accidents have occurred when employees are caught in an
unguarded pulley of that size.

1357

Mr. Torres stated that he made a gravity finding of "reasonably likely" because of the likelihood of an accident and injury
once the equipment was put in operation, and at least one person
who regularly travels the walkway from one side of the pulley to
the other would be exposed to the hazard. Mr. Torres also confirmed that he made a finding that the violation was "significant
and substantial" because someone could have been caught in the
pulley, and if this occurred, a fatality would occur.
Mr. Torres stated that the plant area was "practically new,"
and that Mr. Tabor informed him that a guard had previously been
provided for the pulley in question, but that it was removed for
some reason. Mr. Torres stated that he based his "moderate"
negligence finding on the fact that similar equipment parts in
the area were guarded, and a supervisor should have known that
the cited pulley in question needed to be guarded.
Citation No. 2859002
Mr. Torres stated that the No. 6 feeder platform located at
the second level of the secondary crusher plant was not provided
with handrails. The platform was approximately 10 feet above the
second level floor, and it was used to provide maintenance for
the shakers located on the platform. He stated that the shakers
were located in the middle of the platform area, and that any
employee performing maintenance on the shakers would be "far
away" from the edge of the perimeter of the unguarded platform.
Mr. Torres stated that employees would not normally be on
the platform on a regular basis, and although the platform was
located in a new plant area which had not been totally completed,
the cited area was located in a plant area which was in
production.
Mr. Torres confirmed that he made a gravity finding of
"unlikely" because of the low probability of an accident. He
explained that any maintenance work on the feeder would be performed in the middle of the platform where the feeder was
located, and that the feeder was approximately 10 feet from the
edge of the platform. The only reason for anyone going to the
platform would be to perform maintenance work, and even if someone were to fall from the platform, they would fall into the
"soft" material below and would not likely be injured.
Mr. Torres believed that the violation.was not ''significant
and substantial" because it was not probable that anyone performing maintenance work on the platform would fall off, and it was
unlikely that an accident or injury would occur. He confirmed
that he made a negligence finding of "moderate" because similar
platform areas were provided with handrails.

1358

Citation No. 2859003
Mr. Torres stated that the No. 7 conveyor belt tail pulley
located at the secondary crusher plant was not guarded. He
explained that the pulley was located approximately 1 foot from
the floor level and under the No. 6 feeder which discharged
material on the No. 7 belt conveyor. A guard had previously been
provided, but it had been removed and not replaced. The plant
was shutdown when he observed the condition, and he confirmed
that employees are not regularly in the area, except when the
belt is shutdown for maintenance work such as alignment or
greasing.
Mr. Torres stated that he based his gravity finding of
"unlikely" on the fact that the plant equipment is shutdown when
maintenance or cleaning work is performed. However, if someone
were to be caught in the unguarded pulley, which was 36 inches
long and 10 to 12 inches in diameter, they would suffer fatal
injuries, and past experience with similar unguarded pulleys
attest to this fact. He believed that "sooner or later" someone
would have to go to the area while the equipment is running, and
they would be exposed to a hazard of being caught in the pulley.
One maintenance person would be exposed to the hazard.
Mr. Torres confirmed that the violation was not "significant
and substantial," and that he based his negligence finding of
"moderate" on the fact that a supervisor should have noticed the
unguarded pulley during the preshift examination.
Citation No. 2859004
Mr. Torres stated that the broken No. 8 conveyor belt stop
cord was located at the secondary plant. There were two conveyor
belts at the cited location, the No. 7 and No. 8, and the No. 8
belt was on the left side. The stop cord was approximately
100 feet long, and it was broken in the middle and lying on the
walkway which was adjacent and parallel to the belt. Both the
belt and walkway were inclined, and the walkway was regularly
used by employees to go from ground level to the crusher.
Mr. Torres stated that the belt was in operation when he
observed the broken stop cord, but that no employees were in the
area. However, he believed that prior to the start of the operation, one person had walked by the cited area while going to the
cone crusher.
Mr. Torres stated that he based his gravity finding of
"reasonably likely" on the fact that the walkway was used regularly when the plant was in operation and the broken stop cord
would not allow the conveyor belt to be shutdown in the event of
an emergency or breakdown.
If this were to occur, employees
would be exposed to a hazard from the materials on the belt.

1359

Mr. Torres believed the violation was "significant and substantial" because of the likelihood of an accident resulting from the
inability to stop the conveyor because of the broken cord.
Employees would normally use the walkway to check on the
equipment.
Mr. Torres confirmed that he based his negligence finding of
"moderate" on the fact that the supervisor should have been aware
of the broken stop cord, and as he previously stated, someone
walked by the area prior to the start of the operation.
Citation No. 2859005
Inspector Torres stated that the cited unguarded No. 9
conveyor belt tail pulley was located at the secondary crusher
plant. The belt was under the cone crusher at ground level, and
Mr. Tabor advised him that a guard had been in place but that it
had been removed.
Mr. Torres confirmed that employees would be in the area for
clean-up and maintenance work, but that the belt would be shutdown when this work was being done. He observed no employees in
the area, and never observed any maintenance or clean-up work
being performed.
Mr. Torres described the pulley as 24 inches long and 10 to
12 inches in diameter. He did not believe that the violation was
"significant and substantial" because the equipment was shutdown,
and he made a gravity finding of "unlikely" because maintenance
and clean-up work is performed only when the plant and equipment
is shutdown.
Mr. Torres confirmed that he made a negligence finding of
"moderate" because he believed that a supervisor should have been
aware of the fact that the belt pulley was not guarded.
Mr. Torres also indicated that past experience has shown that
fatalities have occurred when anyone is caught in such an
unguarded pulley.
Citation No. 2859006
Mr. Torres stated that the cited unguarded No. 10 conveyor
belt counterweight pulley was located at the secondary plant and
that the belt travelled from the feeder hopper to the washing and
screening station. There was a walkway next to the belt and
employees would use it while performing maintenance work.
Mr. Torres stated that the equipment was shutdown when he
observed the condition, and that it is shutdown when clean-up or
maintenance work is performed. Mr. Torres stated that he made a
gravity finding of "unlikely" because the equipment is shutdown
when work is being performed, and the walkway is not used on a

1360

regular basis. ·He also indicated that if anyone were caught in
such an unguarded belt pulley, a fatality could occur.
Mr. Torres did not believe the violation was "significant and
substantial," and he based his "moderate" negligence finding on
the fact that similar equipment was guarded.
Citation No. 2859007
Mr. Torres stated that he issued the citation after observing that three employees at the primary rock plant screening
tower, and three employees at the secondary plant, were not
wearing hard-toed safety shoes. Mr. Torres stated that one
employee was wearing tennis shoes, but he did not inspect the
shoes, nor did he speak to any of the employees. He confirmed
that the employees were wearing hard hats, and that he observed
three employees cleaning up under the screening tower.
Mr. Torres also stated that Mr. Tabor informed him that the
respondent required its employees to wear safety shoes, but that
they did not wear them. Mr. Torres was of the opinion that the
cited standard required all plant employees to wear safety shoes
and that this is the policy interpretation of the standard which
is followed in his office.
Mr. Torres stated that he based his gravity finding of
"reasonably likely" on his belief that an employee could be
struck on 'the foot by falling rock or material while cleaning up,
or by a tool or other equipment while he was performing maintenance work.
On cross-examination, and in response to further questions
concerning guarding Citation Nos. 2859001, 2859003, 2859005, and
2859006, Mr. Torres confirmed that at the time he observed the
conditions, the equipment was shutdown and not in operation, and
he observed no employees who were exposed to any hazards at that
particular time. Mr. Torres also confirmed that the plant is
shutdown for maintenance at 8:30 a.m., and that production begins
at approximately 11:00 a.m. Although the main plant generator
was deenergized at the time of his inspection, Mr. Torres did not
believe that all of the equipment motors were locked out.
With regard to guarding Citation No. 2858999, Mr. Torres
confirmed that he saw no employees in the area.
He could not
name the employees who were not wearing safety shoes, or the
employees who he observed on the walkway of the No. 3 feeder, but
he stated that Mr. Tabor informed him that ·they were employees of
the respondent. Mr. Torres also stated that three of the
employees without safety shoes were cleaning up, and that the
other three were maintenance personnel.
Mr. Torres conceded that the cited standard does not contain
the words "safety shoes," and that he assumed that the phrase
"suitable protective footwear" means "safety shoes." He also

1361

confirmed that his inspector's manual interpretation of the
standard provides that safety shoes means "hard toe shoes" (Tr.
96-97).
With regard to guarding Citation Nos. 2859001, 2859003,
2859005, and 2859006, Inspector Torres confirmed that the plant
was not in operation when he viewed the conditions, and he
observed no employees in the area of the unguarded equipment. He
also confirmed that he did not return to those areas after the
plant began operating at 11:00 a.m. (Tr. 106-107).
Mr. Torres confirmed that Plant Manager Tabor informed him
that the generator supplying power to the plant was shutdown so
that the equipment could not be energized. Mr. Torres also
confirmed that the equipment breakers were not locked out (Tr.
121) .
With regard to citation No. 2858999, Mr. Torres confirmed
that he observed no employee exposed to any hazard, and he
explained that the "persons affected" by the citation were those
employee cleaning or performing maintenance, and that "maybe" one
of them "could go to that area and injured there" (Tr. 122}.
Mr. Torres conceded that except for Citation Nos. 2859000 and
2859007, he did not actually observe any employees exposed to any
hazards at the time of his inspection, and while he did not know
the identity of any of the employees, Mr. Tabor advised him that
they were employed by the respondent (Tr. 125-126). Mr. Torres
confirmed that all maintenance is performed when the equipment is
shut off (Tr. 127), but he believed that safety shoes were still
required because employees handle tools and work with heavy
machinery, and it could fall on their feet (Tr. 127). He confirmed that Mr. Tabor advised him that the respondent's policy
required its employees to wear safety shoes, but that Mr. Tabor
did not specify the type of shoes, but did confirm that the shoes
the employees in question were wearing were not in compliance
with company policy (Tr. 154).
Mr. Torres confirmed that during his close-out conference of
September 2, Mr. Johansson and Mr. Tabor did not mention that the
equipment guards were being repaired, and would be replaced.
Mr. Torres stated that this information came from Mr. Fulghum
after the meeting by means of a note which he sent to his off ice
(Tr. 158-161).
MSHA Supervisory Inspector Juan Perez, confirmed that he
supervises the MSHA office in Puerto Rico, including all mine
inspectors assigned to his office. He stated that he visited the
dam site in question as a follow-up to an inspection conducted by
Mr. Torres on February 5, 1988, to determine whether the cited
conditions were corrected. Mr. Perez further stated that the
site was not in operation because of an impending expansion, and

1362

the abatement periods for the citations were extended to May 1,
1988, the date that he was informed the operation would again
start. Mr. Perez stated that he next returned to the site on
April 21, 1988, and found that most of the citations, except for
the safety shoes, were abated. He also confirmed that he had
visited the site in September, 1987 (Tr. 177-182).
Mr. Perez stated that during his visits to the site he
observed two crusher operations or "plants," one of which he
identified as the primary crusher, and one of which he identified
as the secondary crusher. In addition to the crushers, he
observed a screen, vibrator, and conveyor, and indicated that the
secondary plant could be fed by a front-end loader or a conveyor
which connected both operations. He also observed materials
which had been brought in from other quarries, and these materials were stockpiled between the two plants. He identified the
material as a "fixer" which was washed, and ground to produce
different sizes, and stated that some of the material was used
for the concrete plant (Tr. 184).

,_

Mr. Perez stated that shortly after Mr. Torres' inspection
of September 1, 1987, he had a conference with Mr. Fulghum on
September 8, at his MSHA office. He stated that Mr. Fulghum
questioned the issuance of the citations when the plant was not
in operation, and also questioned MSHA's jurisdiction to inspect
the dam project (Tr. 185). Referring to his conference report,
Mr. Perez stated that Mr. Fulghum agreed with all of the citations except for those pertaining to the lack of guards, and that
he stated that the guards were in the machine shop for repairs
(Tr. 187).
Mr. Perez stated that he later met with respondent's counsel
Irizarry, Mr. Fulghum, and the director of the local OSHA office,
Filiberto Cruz, on February 8, 1988. The question of enforcement
jurisdiction was discussed at this meeting, and Mr. Perez stated
that he placed a phone call to his supervisor, Mr. Claude
Narramore, MSHA District Manager in Birmingham, Alabama, and that
Mr. Narramore spoke with Mr. Irizarry and informed him that he
agreed with Mr. Perez' position that MSHA did in fact pave
enforcement jurisdiction at the respondent's dam construction
site. Mr. Perez stated that he suggested that the respondent put
its jurisdictional position in writing in order to submit it to
Mr. Narramore, but that this was not done (Tr. 188-194).
Mr. Perez alluded to a call that he received from the Corps
of Engineers when the dam project was started inquiring whether
or not MSHA had jurisdiction. Mr. Perez stated that he gave an
opinion that if the project entailed construction only, MSHA
would not have jurisdiction, but if involved milling, it would
have jurisdiction (Tr. 194).

1363
-(..·

Mr. Perez stated that he provided Mr. Irizarry and Mr. Cruz
with copies of MSHA Policy Memorandum No. 87-2N-MSHA-OSHA
Interagency Agreement, and that he also discussed the memorandum
with Mr. Narramore. He confirmed that he advised Mr. Narramore
that the respondent was crushing material and buying it from
other plants, and that both he and Mr. Narramore agreed that MSHA
had jurisdiction in the matter (Tr. 196). Mr. Perez explained
Mr. Narramore's position as follows at (Tr. 197):
Q. Now, did he explain to you, you know according to
this memo what would fall under MSHA's jurisdiction and
what would not fall under MSHA's jurisdiction?

A.

Yes.

Q.

And do you recall what he told you about that?

A. Well, in general, we were discussing and he
presented an example, like a tunnel, when they building
a tunnel, they take the material and they dispose of
that material, you know; we don't have any jurisdiction
on that. A dam is similar too, if they take the
material, the material they have to remove and they
dispose of that material, we don't have jurisdiction on
that.

Q. OK, now did he explain situations like that where
MSHA would have jurisdiction?
A.
Yes, he said anything that falls on VHl, milling,
it's our jurisdiction.
Mr. Perez confirmed that after the aforesaid meeting, he
received nothing further from the respondent regarding the jurisdictional question, and it was not further discussed in his
office. He confirmed that his office initially exercised its
enforcement jurisdiction after the respondent filed for a mine
legal identity number on February 9, 1986, and that he assigned
the number to the respondent. The "courtesy inspection" conducted by Mr. Torres followed after the request was received from
the respondent (Tr. 202).
Mr. Perez confirmed that his inspectors do not inspect "key
cuts," and that the inspectors only inspect the crushing and
milling areas. He explained further as follows (Tr. 204):
A. That is our jurisdiction. I think that in the CAV
Roberto went to the extraction area, but the extraction
area was in a different place and it was not . . . ,
extracted from the key cut, that was our information,
that it was off side to the area. That was the key and
then we have jurisdiction but due to the definition of

1364

key cut, we're supposed to inspect only the primary
crusher and down to the final product.
Mr. Perez stated further that on the morning of the hearing
in this case he contacted the local OSHA office in Ponce, and
spoke with the director, a Mr. Artmayer, who informed him that
his office does not inspect the dam project, but that it has
visited the site in response to complaints. Mr. Perez stated
that Mr. Artmayer informed him that his office does not inspect
the respondent's crushers. Mr. Perez produced a copy of his
notes with respect to his conversation with Mr. Artmayer, and
respondent's counsel Irizzary produced copies of OSHA citations
served on the respondent by the Ponce OSHA office (Tr. 207-208).
On cross-examination, Mr. Perez confirmed that MSHA's contact with the dam project resulted from a telephone call in 1985
from the Corps of Engineers inquiring as to MSHA's jurisdiction.
Mr. Perez stated that he informed the Corps that MSHA only had
jurisdiction over milling, and that after the project began, he
determined that MSHA had jurisdiction and suggested that the
respondent file for a mine ID number (Tr. 214).
Mr. Perez stated that while on an inspection at the respondent's new Number 2 plant, he observed materials brought from
other areas being processed at the plant. He confirmed that this
"process" involved "washing, classifying and they were grinding
too" (Tr .. 215). Mr. Perez stated that the respondent was a
responsible employer in terms of safety, and has reasonably
complied with the safety regulations and maintained a safe place
for employees (Tr. 221).
Respondent's Testimony and Evidence
Gerald R. Fulghum, respondent's Project Safety Engineer,
Cerrillos Dam Project, Ponce, Puerto Rico, testified with respect
to his education and mining experience, and he confirmed that the
respondent was engaged to construct the Cerrillos Dam Project in
accordance with the specifications and requirements of the U.S.
Army Corps of Engineers. He confirmed that he holds a degree in
mining engineering, and stated that the project is a seven
million cubic yard dam with a coffer dam and spillway excavation,
and he explained the scope of the project by reference to several
documents, including the dam contract specifications. He confirmed that the dam in question is part of the Portugues and
Bucana Flood Control Plan authorized pursuant to section 201 of
the Flood Control Act of 1970, Public Law 91611 (Tr. 229-235).
Mr. Fulghum stated that in the process of constructing the
dam in question, the respondent is engaged in the excavation of
limestone, rather than extraction, and that the two terms specifically differ in their respective definitions.
He explained that

1365

"extraction" is a mining term, and includes "extracting a particular constituent in preference over other," or "a mining
process in which you're separating one material from another,
from a host." "Extraction," on the other hand, takes place "when
the limestone, the principal purpose of the excavation is to
procure limestone" (Tr. 235-236).
Mr. Fulghum confirmed that the situs of the dam was determined by the location of the Cerrillos River and the topographical features of the location, which included several varieties of
limestone which is used in bulk to form the dam. He stated that
all of the limestone materials which are found at the dam site
are totally excavated, and there is no stripping of overburden,
and no selection process takes place. He further confirmed that
the excavated material goes through the plant in its entirety to
be used as dam embankment material, and that the respondent is
not interested in any mineralization, and that the overriding
criteria in the construction of dams is the particle size stability of the material (Tr. 237-239).
Mr. Fulghum stated that the only stripping which takes place
is done to remove loose dirt and vegetable matter which causes
problems in the final product stability as it is used for the dam
construction. Referring to the dam spillway design specifications, Mr. Fulghum made reference to "the blasting of material
excavated from the spillway to insure breakage of fractured rock
into stable particle sizes." He also stated that the limestone
rock can also be ripped with a D-9 ripper, and that any materials
used must meet the particle stability criteria for an earth
filled dam. He also stated that "a grizzly will be used to
process all rockfill and separate it into oversize rock, 3-inch
to 20-inch rock and minus 3-inch rock sizes" (Tr. 240).
Mr. Fulghum stated that the respondent must follow the Corps
of Engineers instructions and criteria for the construction of
the dam, and he confirmed that previously excavated materials has
been stockpiled "to be run through our plant." Although the
spillway is the major source for the materials used to construct
the dam, other associated excavations are used to satisfy the
bulk and particle stability sizes for the dam (Tr. 242).
Mr. Fulghum further explained the dam construction criteria,
including the ''stripping of intensely weathered rock from the
surface," and the blasting, excavation, and grizzling of other
rock materials (Tr. 242). He stated that materials excavated
from the spillway are processed through both of the plant facilities, and while it changes form, "we make no selection process"
(Tr. 243).
Mr. Fulghum further explained the criteria for processing
coarse filter fill, which he described as "crushed firm and/or
sound limestone," and he explained that the processed limestone

1366

must meet the sieve analysis requirements established by the
Corps of Engineers contract specifications (Tr. 245).
Mr. Fulghum confirmed that all of the firm limestone rock excavated from the spillway must be processed to maintain its
particle stability at the sizes in which a core filter or a fine
filter is manufactured (Tr. 246).
Mr. Fulghum stated that due to diminishing sources of
on-site limestone~ the respondent found it necessary to bring in
additional materials from off-site. Aggregates such as sand,
quarter-inch, half-inch, three-quarter-inch, and 3-inch aggregates is brought to the site, and used to produce concrete for
use in the construction of the dam (Tr. 247).
Mr. Fulghum characterized the respondent's plant as "a fill
processing plant" and denied that it was a "rock plant," although
"in all appearances, shapes and forms it looks like a rock plant"
(Tr. 247).
He further explained as follows at (Tr. 248, 250):
The Corps of Engineers, finding that they're
running out of limestone rapidly and that two diamond
drill studies were not sufficient, says "We would like
you to go out to the local quarries and we want you to
process their product," and we went to local quarries
and said, "We would like to buy your three inch minus,"
which is a common request of a quarry.
"We want
. . . ,"and I . . . , more than 50,000 yards, I can't
remember the specific amount. This material is brought
on-site and further processed by our filter plant which
is also called the terciary plant to make filter.
Once again, everything that goes in that plant,
even though it came from outside sources, when it goes
into that plant, there is no separation. What goes in
the end, comes out the back in one way or another.
Mr. Fulghum stated that the dam site consists of a spillway,
a rock plant, and the main dam embankment (Tr. 251). He contended that the respondent is engaged in excavating and processing limestone material which is incidental to the construction of
the dam, rather than the dam being incidental to the excavation
and processing activity (Tr. 252).
Mr. Fulghum confirmed that MSHA's position is that "because
our plant looks like a rock plant it is" (Tr. 254). He agreed
that the respondent is excavating the materials to construct the
dam, but before using the materials as part of the dam construction, the materials are processed to meet the Corps of Engineers
specifications, and he stated further as follows at (Tr.
255-258) :

1367

JUDGE KOUTRAS: The application seems to be here, at
least from MSHA's point of view, is that you're
excavating this material to build the dam, but before
you take it from pit to dam, you do something with it.
WITNESS:

Yes, sir.

JUDGE KOUTRAS: And you do what you do to it, is you do
what the Corps of Engineers teils you to do with it.
You .
., you subject it to some kind of a process to
get these specifications, don't you?
WITNESS: Yes, sir, but Your Honor, in the act itself
and in the . . . , the memorandums of understanding,
just because we're processing rock doesn't make us a
miner, doesn't make us a miller. There are exceptions
to that, Gypsum. Gypsum is milled at a plant in which
Gypsum board is fabricated.
Is that a mill? No,
they've already found that that's not a mill, Your
Honor.
We process material~
Because we process material
from the earth does not necessarily mean that we're
milling. You could . . . , you could make that argument
but I think we have to rely on the definitions as we
have them before us.

*

*

*

*

*

*

*

JUDGE KOUTRAS: But then when you look over here at
milling it's clearly said that MSHA has authority if
following, there is a list of general definitions of
milling, to which MSHA has authority to regulate, and
it says "crushing, sizing," among other things.
WITNESS: Your Honor, we would agree that in order to
mill something you must do one of those processes.
JUDGE KOUTRAS:

Don't you crush and size?

WITNESS:
You crush, size, wash, float, center,
benification, solvent extraction, retorting, those are
all milling processes, Your Honor.
But there's one
essential element to milling, milling by technical and
legal definition, Your Honor.
JUDGE KOUTRAS:

It's what?

WITNESS:
You must be separating something valuable
from something that's not valuable, and we do not do
that.

1368

JUDGE KOUTRAS:

But . . . ,

Isn't that what it says, Your Honor?
WITNESS:
it essential .

Isn't

JUDGE KOUTRAS: What do you mean of value? You know,
when you do . . . , when you get a specification that
says that the rock for rockf ill shall be rock well
graded from 100 percent passing a 20-inch-square screen
to not more than 5 percent passing a 3-inch screen,
aren't you • . . , isn't that the value that you . . . ,
isn't that what you're getting out of it? You're just
not up there ripping stuff out of the earth and piling
it against the dam, you're doing something to that
under these specifics . .
WITNESS:

We're screening and sizing, Your Honor.

JUDGE KOUTRAS:
this . .

That's what I'm saying.

Does

WITNESS:
But screening and sizing is a • . . , is a
milling operation.
JUDGE KOUTRAS: Then if it's a milling operation,
according to this, it's subject to MSHA's jurisdiction?
WITNESS: No, but that . . . , just because this milling
does . . . , just because there's sizing it does not
make it a milling operation. Just because you're
grinding it doesn't make it a milling operation. Those
are elements that are required to be a mill. But, if I
could refer and the best definition, I totally concur
with the definition in the inter-agency agreement,
which I don't have the Federal Register copy, but
"milling is the art of treating the crude crust of the
earth to produce therefrom a primary consumer derivative. The essential operation in all such processes is
a separation of one or more valuable considered constituents of the crude from the undesired contaminants
from which it is associated."
Referring to topographical photographs of the dam facilities, Mr. Fulghum identified the location of the "rock plant"
used for the processing of dam embankment material, and the
"terciary plant" used to produce dam filer material, and he
confirmed that these are the two plants described by Inspector
Torres during his testimony (Tr. 260-261). He confirmed that the
excavated materials which are "run through our processing facility" end up in the dam, and that the processed rock is further
processed when it is crushed further by passing through a 45-ton

1369

vibratory roller in order to insure stable particle size (Tr.
262) .
In response to his interpretation as to what constitutes
milling and mining under the Act, and the definition of the term
"mill" as found in 30 C.F.R. § 56.2, Mr. Fulghum responded as
follows at (Tr. 264-266):
JUDGE KOUTRAS: Well, let me ask you this, if you look
at Section 56.2 of the regulations, you know, in
Title 30, the definition of a mill here, that's all on
page 305, Mr. Irizarry, I see you've got the green
book, it's 56.2.
WITNESS:

Uhum?

JUDGE KOUTRAS: 56.2, definitions, I'll give you a
minute to find "milling."
WITNESS:
I think I need this.
Definitions, yes Your Honor?
JUDGE KOUTRAS:
WITNESS:

Thank you.

Yes, look up a mill.

Includes any ore mill . . .

JUDGE KOUTRAS: Yes, let me highlight this for you,
"Mill includes any crushing, grinding or screening
plant used in connection with excavation." Let's skip
all the other words.
"Mill includes any crushing,
grinding or screening plant used in connection with an
excavation."
WITNESS:

OK, Your Honor.

JUDGE KOUTRAS:
Is that .
that you're doing?

., does that fit anything

WITNESS: That would fit anybody subject to this Act,
yes, Your Honor.
JUDGE KOUTRAS: Would it fit what you're doing at the
. . . , leave the question of being subject. You have a
screening plant, don't you?
WITNESS:

Yes, Your Honor.

JUDGE KOUTRAS:
WITNESS:

You have a crushing plant, don't you?

Yes, Your Honor.

1370

JUDGE KOUTRAS: And you
going on, don't you?
WITNESS:

Yes, Your Honor.

JUDGE KOUTRAS:
WITNESS:

., you have an excavation

Does that fit the definition of mill?

As I'm reading .

JUDGE KOUTRAS:

In and of itself?

WITNESS: As I'm reading it from here, yes Your Honor.
But this is not a complete definition, no.
For miller.
JUDGE KOUTRAS:

But it's a definition, it's in 56.2?

WITNESS:
It is a definition, that's contained in 56.2,
yes Your Honor.
JUDGE KOUTRAS:
WITNESS:

OK.

I don't believe it's applicable.

JUDGE KOUTRAS:

OK.

WITNESS: But we do.
., we do have the same
characteristic similarities which we don't deny.
Mr. Fulghum took the position that the respondent does not
extract minerals, but is simply excavating rock {Tr. 267).
In
his opinion, the respondent's dam construction site is not a
mine, and the respondent has never developed a mine and has no
intentions of doing so (Tr. 268).
Mr. Fulghum characterized the respondent as a "worldwide
recognized constructor of dams," and he alluded to an analogous
dam construction project at the respondent's Warm Springs Dam
project which is located within the enforcement jurisdiction of
MSHA's Alameda, California Field Office. He also alluded to
several other dam projects where the respondent excavated similar
materials used in dam construction, and stated that when
inquiries were made of MSHA with respect to its jurisdiction over
these activities, no responses were forthcoming {Tr. 269).
Mr. Fulghum stated that the CAL-OSHA Office has issued
citations at the aforementioned dam projects, but that MSHA has
never inspected those sites or recognized those operations as
mines or milling operations {Tr. 270). Mr. Fulghum was of the
opinion that the language contained in the April 17, 1989,
MSHA-OSHA Agreement excludes the respondent's Cerrillos Dam
Construction activities from coverage under the Mine Act {Tr.
271). He believes that the definition of milling, and MSHA's

1371

authority with respect to milling operations, as discussed in the
memorandum, are general definitions, but conceded that "sizing
and crushing" does define a milling process which is subject to
MSHA's jurisdiction (Tr. 275).
Mr. Fulghum confirmed that the dam spillway is part of the
dam, and that a "spillway" is a "water diversion" within the
meaning of the October 23, 1986, MSHA Memorandum clarifying "key
cuts and dam construction" (Tr. 276).
He stated that a "key cut"
of a dam is an excavation that's necessarily a component of the
dam (Tr. 2 7 6) .
Mr. Fulghum confirmed that the respondent's dam construction
operations have been inspected by the local Puerto Rico OSHA
Office, which has issued citations.
Copies of some of these
citations were received for the record, and Mr. Fulghum reviewed
and explained them (Tr. 283-289; exhibits R-2 and R-3).
Mr. Fulghum testified with respect to the guarding citations
issued pursuant to mandatory standard section 56.14001, Citation
Nos. 2558999 through 2559007, September 1, 1987, and he confirmed
that they were discussed with Inspector Torres during his inspection closing conference. Mr. Fulghum took the position that it
was necessary to remove the equipment guards in order to do
maintenance work on the equipment.
He explained that the respondent's operation at the dam project was a 7-day a week, 24-hour a
day operation, and that production ceases at given times in order
to perform maintenance.
He took the position that the cited
standard only applies when there are moving machine parts which
may be contacted and subsequently lead to an injury (Tr.
292-293) .
Mr. Fulghum stated that the equipment guards require fabrication and repairs at the shop facility, and once the plant was
locked out and shutdown for regular scheduled maintenance, the
guards were "removed and improved upon." He stated that he
explained this to Inspector Torres and that he responded "if it's
not there, regardless, it's a citation" (Tr. 294).
Mr. Fulghum was of the opinion that the cited guards could
be removed, and that pursuant to section 56.14006, guards are
required to be in place while the equipment is running, unless
they are removed to test the equipment.
He also pointed out that
in order to stay in compliance with section 56.14007, which
requires that guards be substantially constructed and maintained,
the most common and expeditious manner of doing this is to remove
them during the shutdown procedure (Tr. 294-295).
Mr. Fulghum
further pointed out that the respondent complied with section
56.14029, and that at the time Mr. Torres observed that the
guards were missing from the equipment, the power was off and no
moving machine parts existed since the equipment was not in fact
moving (Tr. 296).

1372

Mr. Fulghum confirmed that the respondent had an established
equipment lock-out and tag-out procedure in effect at the time
the citations were issued, and that pursuant to the contractual
stipulations with the Corps of Engineers, it has submitted Job
Hazard Analysis reports for the rock, terciary, and test plants
(Tr. 296-298) .
Mr. Fulghum confirmed that there is a scheduled time period
for equipment maintenance, and that at the time of the inspection
by Mr. Torres, the plant was not in operation and was down for
maintenance.
He confirmed that the production shift began at
11:30 a.m., and that when Mr. Torres was there at 8:00 to
8:30 a.m., everything was shutdown, and it had been shutdown
since 4:00 a.m. (Tr. 299-300).
Mr. Fulghum stated that the missing guards were in the shop
for repairs at the time Mr. Torres inspected the plant, and that
the shift superintendent informed him that they were replaced at
11:30 a.m. He was also informed that they were removed that same
morning and reinstalled, and that Mr. Tabor explained this to
Inspector Torres during the closing conference (Tr. 300-302).
Mr. Fulghum stated that if Mr. Torres had returned at 11:00 a.m.,
when the plant was in production, he would have seen that the
guards were replaced (Tr. 305).
Witq regard to the walkway Citation No. 2859000, Mr. Fulghum
stated that Mr. Tabor informed him during the closing conference
that the three individuals exposed to the hazard were employees
of MES Services, and not rock plant or terciary plant employees.
Mr. Fulghum confirmed that he was not present when the citation
was issued and that the cited walkway or platform was part of the
Number 3 feeder which is part of the respondent's plant (Tr.
306). Mr. Fulghum did not deny that persons were on the walkway
or platform, nor did he deny that it was unguarded (Tr. 308).
With regard to Citation No. 2859002, concerning the lack of
handrail's on the No. 6 feeder platform, Mr. Fulghum did not deny
that it lacked handrails, and he pointed out that the area was
not used on a regular basis. He also pointed out that a gate
which had been provided at the cited location was removed because
the material would not pass through the plant as quickly as
required and that he removed the gate and separated it, and could
not find it (Tr. 311).
With regard to the broken conveyor emergency stop cord
Citation No. 2859004, Mr. Fulghum conceded that the cord was
broken, but he pointed out that the plant was locked down and
that in the course of routine maintenance someone would have
found the condition and repaired the cord before production was
started. Mr. Fulghum stated that Mr. Tabor informed him that he

1373

knew about the broken cord and that it was repaired before production began (Tr. 312).
With regard to the safety shoes Citation No. 2859007,
Mr. Fulghum stated that the respondent provides steel protective
footwear to its employees at no cost, and that adequate supplies
of "dock stoppers" which slip over the feet to protect them in
the toe and metatarsal areas are also available for the
employees. Mr. Fulghum believed that the cited standard does not
require steel toe caps, and that leather boots are "suitable
footwear" within the meaning of the standard (Tr. 318).
Mr. Fulghum conceded that some employees do not always wear
steel toed boots because they work in the field and are not
always assigned to the plant, but he reiterated that employees
are supplied with "dock stoppers" and that the respondent
subsidizes the purchase of steel toed shoes for its employees
(Tr. 319) .
Mr. Fulghum stated that the respondent has a strict and
aggressive safety and loss control program, and that it complies
with all MSHA, OSHA, MSCE, NFPA, and Corp of Engineers Safety
requirements (Tr. 324-325). He also confirmed that the respondent complies with the annual training and retraining requirements of the law (Tr. 327).
On cross-examination, Mr. Fulghum stated that one of the
criteria used for the selection of the location of the dam in
question was the availability of the limestone materials that
were present in that location (Tr. 331, 335). He confirmed that
there are several excavation areas at the dam site, and that all
of the excavated materials that are suitable and meet the dam
construction criteria are used in the construction of the dam
(Tr. 340).
Some of the excavated materials which may not be
suitable for the construction of the dam are used in other areas,
such as access roads, and large boulders and oversized materials
are stockpiled as riprap (Tr. 343).
Mr. Fulghum described the materials used for the construction of the dam as "highly altered fibroplastic metal, semimetal, marine metisetal," commonly referred to as limestone,
siltstone, fractured limestone, and hard and soft dirt and rock.
He confirmed that all of these materials, with the exception of
clay core and riprap, is processed in either the primary or
secondary rock plant. As a general rule, all of the material is
processed through the primary plant, and he described the nature
of the process as follows (Tr. 348-350):
Q. What determines whether something is sent to the
primary plant as opposed to the secondary plant?

1374

A. Everything goes through the primary plant, with the
exception of the material I've mentioned earlier, that
we brought in from outside. Everything has to go
through the rock plant.

Q. OK. And does it all start at the primary plant or
is some of it only processed at the secondary plant?
A.
I believe they all go through the primary plant.
There may be exceptions, but as a general rule they all
go through the primary plant.

Q. And in the primary plant, what is the nature of the
process?
A. The material is . . . , is taken from the designated
spillway excavation, it's brought down in triple seven,
hauled in trucks, down hydraulic drove, they reverse
into a dump station which contains a radio gate and
grizzler. There is a feed apron, with grizzlies and
oversized material that's too large to handle is
crushed at the general crusher. This material then
goes to a screening court where it's segregated according to size, in different sizes.
The product of the screening decks are basically
drove through and some oversized returns to a cone
crusher, back up to the screening deck to get the right
proportion of the sizes together to make a dam.
It
then leaves that area and it goes along the product
belts. Two of the products really have nothing done,
the rock product, the 20-inch product, it comes . . . ,
as soon as it comes off the grizzly and goes through
the first selection, it's sent out into a dump pile as
a rock zone. The second is a product called transition
and that's just everything else in between.
But it is
screened and it is crushed. But not to the specifications of a normal aggregate.
Q.

Not to what?

A.

The specifications of a normal aggregate.

Q.

OK.

A.
In fact, you couldn't sell this aggregate to anybody as an aggregate or in its current form.
Q. And after these materials come out of the primary
plant, is there any further processing or are they
eventually used . .

1375

A.

No, sir, those are in place materials.

Q.

So they .

. . , they come out .

A. Well, they do have another process which affects
the size, it's anticipatory in the design engineer's
mind that one of the criteria is not only the particular size, but they have to have a pack, in other words,
we take big rollers to make sure that they meet maximum
density and there is an anticipated further crushing
action by these large rollers that roll back that is
also taken in the design criteria.
So that would be
the last of the process, it's when it's rolled in place
on the embankment.
But other than that, as far as
going through the plant, those two products, transition
and rock, come right off the plant. And the stockpiles, these stockpiles you see around the photographs
are that rock.

Q.

OK and what is the end product used for?

A.
The end product is used for embankment material on
the dam.
Mr. Fulghum described the process which takes place at the
secondary crusher or rock plant as follows (Tr. 350-352):
Q.
In terms of the secondary crusher or rock plant,
what process is performed there?
A. That takes material either out of the transition
stockpile and as I said in the past, well, it would be
the same process. We had to reset our entire plant.
Well, let's . . . , let me take it one step at a time.
Let us assume that it comes from the excavations that
are required on the project, that material will be
taken out of the transition stockpile.
It would go
into a feed hopper with the primary feed.
Then it goes
through a screen deck, a wet screen deck.
And this is
filtered, it has to be free of all dirt.
It goes through the screen deck and the product
comes out and it goes through I believe two giratory
crushers there. We also have a large hydrocone there.
These break it down into particle sizes and the proportions of the particles we need to make in the filter
blanket.
They then go up into a replane, to a second
screen deck which, most of this.
., this is not the
original plant, but as the plant is being modified in
its current state, to match the material, we now have
the screen deck with the second screen plane that goes
out.

1376

Currently and I doubt if it's completed today, we
also have the third process in which to break it down
into size and where we're going to use a hammerlock, an
impact, an impact crusher is what you call it. That
product is either refined or coarse. The coarse goes
to the coarse filter, the fine goes to the fine filter.

Q. And in terms of the product that is processed in
the secondary plant, what is that useq for?
A.

That is the product, sir, that is the filter.

Q.

For the filter?

A.

Yes, sir.

Q.

What is a filter?

A.
In order for a dam to maintain a stability, it has
to have someway for the water to relieve itself without
becoming a massive herd as I mentioned earlier in the
morning.
* * * We put the clay down and the filter
lays against the clay in order that we don't get a
massive saturation in which the rock fill dam cannot
drain as quick as the water level comes down and that's
the function of the filer, sir.
Mr. Fulghum confirmed that the respondent purchased limestone aggregate from outside sources, and that it was processed
through the filer plant. He also confirmed that aggregate, sand,
and cement was purchased and used to batch or make concrete in
the batch plant (Tr. 353-355). The only outside purchased material processed in the primary or secondary plant was the 3-inch
minus product used in a pilot test program processed for the
Corps of Engineers (Tr. 356).
Mr. Fulghum confirmed that the prior OSHA inspection's
resulted from employee complaints and two fatalities which
occurred at the dam embankment, and he had no knowledge as to
whether or not OSHA inspected the project as part of any general
inspection (Tr. 358-360).
Mr. Fulghum confirmed that all of the equipment used in the
rock plant facilities originated from sources outside of
Puerto Rico, and that it was brought in from the Warm Springs Dam
located near San Luis, California (Tr. 361).
Mr. Fulghum stated that he was not present at the project on
August 31, 1987, during the first inspection conducted by
Mr. Torres (Tr. 362). He was present late in the evening of
September 1, 1987, but had no direct knowledge of any statements

1377

that Mr. Tabor may have made to Mr. Torres with respect to his
inspection (Tr. 363). He also confirmed that he had no personal
knowledge concerning the missing guards cited on August 31 or
September 1, and that records concerning guards removed for
maintenance are not made because "we do it every day." He
assumed that the plant or lead foreman would have knowledge of
those matters (Tr. 370).
Mr. Fulghum confirmed that he had no personal knowledge that
the guards which were removed and not in place on September 1,
were replaced before the plant went into production at
11:00 a.m., or 11:30 a.m., and that his knowledge of this was
based on what he was told by Mr. Tabor and Mr. Johansson (Tr.
374-375). However, Mr. Fulghum stated that he saw the guards in
place later in the evening at approximately 5:00 p.m. when the
plant was in operation (Tr. 376).
Mr. Fulghum stated that the employees cited for not wearing
suitable protective footwear were engaged in shovelling and
cleaning up under the plant screen tower, and that the only type
of "sneaker" that an employee may wear is one that has steel
shank inserts (Tr. 376, 380).
Mr. Fulghum stated that the rock plants are mobile, and he
described their locations at this project site by reference to
certain photographs (Tr. 394-396).
Inspector Torres was recalled as the court's witness, and he
denied that Mr. Tabor ever informed him on August 31 or
September 1, 1987, that the cited guards had been removed from
the equipment to be repaired. He also stated that with respect
to two of the guarding citations, Mr. Tabor informed him that the
guards had been on the equipment but were removed, but that he
did not offer any reason for their removal (Tr. 399-400).
Mr. Torres confirmed that even if Mr. Tabor had informed him
that the equipment was locked out and the guards removed for
maintenance, he would still have issued the citations because
there would have been insufficient time to replace all of the
cited guards before the plant went into production (Tr. 400-401).
With regard to the safety shoe citation, Mr. Torres confirmed that he simply observed one employee wearing ordinary
tennis shoes and did not speak to him or examine the shoes.
Mr. Torres confirmed that the employee was cleaning material from
under the screening station and he was concerned that 4 or 5 inch
rock materials would fall from the upper levels of the plant, and
if he were a maintenance employee, a heavy tool could fall on his
foot. Mr. Torres also confirmed that the cleaning took place
while the equipment was shutdown (Tr. 401-403).

1378

Mr. Torres confirmed that according to his interpretation of
the safety shoe standard, all employees working in the plant need
to wear safety shoes, and that according to his inspector's
manual, safety shoes are considered to be hard-toe shoes.
Mr. Torres stated that if anyone had informed him that the
guards had been replaced prior to leaving the plant site at
2:00 p.m., on September 1, he would have gone back and checked
them and terminated the citations.
He stated further that the
replacement of the guards was only mentioned during the close-out
conference (Tr. 407). He also confirmed that Mr. Fulghum never
informed him that the guards had been removed for maintenance or
repairs, but that Mr. Tabor informed him that this was the case
at the end of the close-out conference (Tr. 412-413).
An MSHA Mine Identification Form filed by the respondent's
project manager Lars Johansson on February 19, 1986, contains the
following information (Exhibit ALJ-2):
1.
The assigned MSHA Mine ID for the respondent's
Cerrillos Dam Project is shown as 54-00289, and the
facility is identified as a "Rock Quarry-Surface."
2.
The mine location address is shown as
Dillingham Construction, Inc., P.O. Box 7430, Ponce,
Puerto Rico 00732.
3.
The respondent's corporate name is shown as
Dillingham Construction International, Inc., a State of
Nevada Corporation.
4. The corporation identified in item #3 above is
identified as a subsidiary of Dillingham Construction
Corporation, 7100 Johnson Drive, Pleasaton, California
94565, the parent corporation.
A copy of an MSHA computerized "Mine Inspection and
Violation History" for the period January, 1986 through October,
1987, reflects the following information:
1.
The Cerrillos Dam Project is identified as a
"Sand & Grav" operation employing 36 individuals.
2.
Two "regular" MSHA inspections were conducted
at the facility during the periods August 31 to
September 2, 1987, and February 9, 1987 to February 10,
1987.
One MSHA compliance (CFI)
on June 29, 1987.

1379

inspection was conducted

One MSHA "Compliance Assistance visit" (CAV)
inspection was conducted during the period November 3
to November 4, 1986.
3.
During the period November 3, 1986, through
September 1, 1987, the respondent was issued a total of
52 citations for alleged violations of various mandatory safety and health standards found in Part 56,
Title 30, Code of Federal Regulations.
Twenty-eight (28) of the total violations noted
were issued during a CAV inspection conducted on
November 3 and 4, 1986.
Fifteen (15) of the total violations noted were
issued during a regular inspection conducted on
February 9 and 10, 1987.
Nine (9) of the total violations noted were issued
during a regular inspection conducted on September 1,
1987, and they are the contested citations in issue in
the instant proceedings.
Findings and Conclusions
The Jurisdictional Question
Section 4 of the 1977 Mine Act, 30 u.s.c. § 803, provides
that "Each coal or other mine, the products of which enter
commerce, or the operations or products of which affect commerce
. . . shall be subject to the provisions of this Act."
Section 3(h) (1) of the Act, 30 u.s.c. § 802(h) (1) (c),
defines "coal or other mine" in pertinent part as "an area of
land from which minerals are extracted . . . and lands, excavations, . . . facilities, equipment, machines,
. used in, or
to be used in, the milling of such minerals . . . . "
The definition of "coal or other mine" is further clarified
by the Legislative History of the Act. The Senate Report
No. 95-181 (May 16, 1977) provides that:
Finally, the structures on the surface to be used in or
resulting from the preparation of the extracted
minerals are included in the definition of "mine."
. . . [B]ut it is the Committee's intention that what
is considered to be a mine and to be regulated under
the Act be given the broadest possibly (sic) interpretation, and it is the intent of this Committee that
doubts be resolved in favor of inclusion of a facility
within the coverage of the Act.

1380

S. Rep, No. 181·, 95th Cong., 1st Sess. 602, reprinted in [1977]
U.S. CODE CONG. 7 ADMIN. NEWS 3401, 3414.
MSHA's Part 56 mandatory safety and health standards for
surface metal or nonmetal mines, define the term "Mill" as
including, inter alia, "any crushing, grinding, or screening
plant used at, and in connection with, an excavation or mine."
The term "mill" is defined by the Dictionary of Mining,
Mineral, and Related Terms, U.S. Department of the Interior,
1968, in pertinent part as follows at page 706:
[T]he whole mineral treatment plant in which crushing,
wet grinding, and further treatment of the ore is
conducted.
In mineral processing, one machine, or a group,
used in comminution. This older limitation of the term
has today been broadened to cover the whole mineral
treatment plant in which crushing, wet grinding, and
further treatment of the ore is conducted.
By common
usage, any establishment for reducing ores by other
means than smelting. More strictly, a place or a
machine. in which ore or rock is crushed.
The term "milling" is defined in part at page 707 as "The
grinding or crushing of ore. The term may include the operation
of removing valueless or harmful constituents and preparation for
market."
The thrust of the respondent's jurisdictional argument, as
expressed through the testimony of its Project Safety Engineer,
Gerald Fulghum, is that it "excavates" limestone and siltstone
materials and does not engage in an "extraction" of these materials, or in any activities associated with the extraction of
such materials. The respondent further relies on Mr. Fulghum's
assertion that the term "milling" involves the separation of a
valuable ore from undesirable contaminants, and that since the
respondent performs no such separation, it cannot be considered
to be engaged in a milling operation.
In support of his
arguments, Mr. Fulghum relies on an MSHA/OSHA Interagency
Agreement, published in the Federal Register on April 17, 1979,
44 Fed. Reg. 22827-22830 (Exhibit ALJ-1), and in particular, the
definitions of "Mining and Milling" found in Appendix A to the
agreement, at page 22828, which defines these terms as follows:
Mining has been defined as the science, technique,
and business of mineral discovery and exploitation.
It
entails such work as directed to the severence of
minerals from the natural deposits by methods of underground excavations, opencast work, quarrying,
hydraulicking and alluvial dredging. Minerals so

1381

excavated usually require upgrading processes to effect
a separation of the valuable minerals from the gangue
constituents of the material mined. This latter
process is usually termed "milling" and is made up of
numerous procedures which are accomplished with and
through many types of equipment and techniques.
Milling is the art of treating the crude crust of
the earth to produce therefrom the primary consumer
derivatives. The essential operation in all such
processes is separation of one or more valuable desired
constituents of the crude from the undesired contaminants with which it is associated.
The respondent further argues that its principal business is
that of dam construction, and that it is not engaged in the
normal business of mining as a means of selling any of its
excavated materials on the open market. Respondent maintains
that the processing of any excavated limestone is incidental to
its dam construction activities, and it suggests that if
jurisdiction attaches under the Act, the enforcement of its
activities should lie with OSHA, and not with MSHA.
In support
of this argument, the respondent relies on MSHA Policy Memorandum
No. 88-2M, dated October 23, 1986, which "clarified" the
MSHA/OSHA Agreement, and it states in pertinent part as follows
{Exhibit AIJ-1):
Recently, several inquiries regarding questions of
jurisdiction indicate the apparent need to further
clarify the Interagency Agreement between the Mine
Safety and Health Administration {MSHA) and
Occupational Safety and Health Administration {OSHA}.
Especially of concern are those areas in which a
mineral is extracted for purposes other than its
intrinsic value as a commodity. The operations listed
below delineate some of these types of facilities but
are not limited to the following:
(a)
key cuts in dam construction (not on
mining property or used in mining) ;

*

*

*

*

*

*

*

The question of jurisdiction in these and similar
types of operations is contingent on the purpose and
intent for which the facility is being developed. The
mineral extracted incidental to the primary purpose of
the activity may be processed and disposed of however
the operator may choose. At these types of operations,
MSHA would not have jurisdiction since they would not
be functioning solely for the purpose of producing a
mineral.

1382

The respondent further relies on an MSHA Program Policy
Manual provision published on July 1, 1988, Release I-1,
Volume I, Section 4, page 3, concerning the MSHA/OSHA Agreement,
which states in pertinent part as follows:
MSHA and OSHA have entered into an agreement to
delineate certain areas of inspection responsibility,
to provide a procedure for determining general jurisdictional questions, and to provide for coordination
between the two agencies in areas of mutual interest.
MSHA has jurisdiction over operations whose purpose is
to extract or to produce a mineral.
MSHA does not have jurisdiction where a mineral is
extracted incidental to the primary purpose of the
activity. Under this circumstance, a mineral may be
processed and disposed of, and MSHA will not have
jurisdiction since the company is not functioning for
the purpose of producing a mineral. Operations not
functioning for the purpose of producing a mineral
include, but are not limited to, the following:
1. Key cuts in dam construction (not on
mining property or used in mining) ;

*

*

*

*

*

*

*

The question of jurisdiction in these and similar
types of operations is contingent on the purpose and
intent for which the facility is being developed.
Finally, the respondent asserts that its dam project in
Ponce, Puerto Rico, is within the jurisdiction of the local
Puerto Rico Occupational Safety and Health Administration which
has exercised its mandate for the health and safety oversight of
the respondent's employees under rules and regulations promulgated by the OSHA Act of 1970, and that neither MSHA or the
Commission has jurisdiction in these matters.
In Marshall v. Stoudt's Ferry Preparation Company, 602 F.2d
589 (3d Cir. 1979), cert. denied, No. 79-614 (January 7, 1980),
the State of Pennsylvania dredged a river and deposited the
material into a nearby basin. The operator purchased this material, and through the use of a front-end loader and conveyor
belts transported the material to its plant where, through a
sink-and-float process, a low-grade fuel was separated from the
sand and gravel. The court held that the operator was engaged in
the preparation of minerals within the jurisdiction of the Mine
Act, and that the work of preparing minerals is included with the
Act whether or not extraction is also being performed by the
operator. The court stated as follows at 602 F.2d 592:

1383

Although it may seem incongruous to apply the
label "mine" to the kind of plant operated by Stoudt's
Ferry, the statute makes clear that the concept that
was to be conveyed by the word is much more encompassing than the usual meaning attributed to it--the word
means what the statute says it means.
Donovan v. Carolina Stalite Company, 734 F.2d 1547
(Ct. App. D.C. Cir.), decided May 15, 1984, concerned a slate
gravel processing facility operated by Stalite adjacent to a
stone quarry independently owned and operated by another company.
Approximately 30 percent of the stone quarried at this operation
was delivered to Stalite by a conveyor system, and Stalite
"bloated" the slate in a rotary kiln with intense heat, and
produced a light-weight material called "stalite" which was
crushed and sized and sold to be used in making concrete masonry
blocks. Addressing the question as to whether Stalite was
engaged in mineral milling and preparation, subjecting it to MSHA
jurisdiction, or whether its operation was "primarily manufacturing in nature," subjecting it to OSHA jurisdiction, a
Commission Judge found that Stalite was engaged in milling subject to MSHA's jurisdiction.
In view of the fact that mineral
milling and preparation are not specifically covered in the Act,
the judge relied on three of the specific examples found in
Appendix A to the interagency agreement - heat expansion, crushing, and sizing--in concluding that Stalite was engaged in milling subject to MSHA's jurisdiction.
On appeal of the judge's decision, the Commission took a
narrow view of the term "milling" to include only facilities that
engage in the "extraction, milling, and preparation of minerals,"
and concluded that Stalite did not engage in mining "in its
classic sense." Relying on the fact that Stalite did not do the
actual extraction of the slate and that its only contact with the
mineral occurred after it had been extracted and crushed at the
quarry, the Commission considered Stalite's treatment of the
mineral to be "a manufacturing process" that results in a product, rather than a "milling" process under the Act, and reversed
the judge's decision.
The Commission gave no weight to the
judge's reliance on the interagency agreement, and ruled that the
question of MSHA's regulatory authority is to be determined by
the scope of the Mine Act's coverage, and not by the agreement.
The court reversed the Commission, and relying on the
statutory definition of a mine and the legislative history of the
Act reflecting an intent by Congress that the Act be broadly
construed, it held that Stalite was subject to the Act.
Although
agreeing that the interagency agreement "suffers from a degree of
internal inconsistency,'' the court found the examples of milling
processes detailed in the agreement to be of particular
relevance, 734, F.2d 1552-1553. The court also took note of the

1384

agreement by other circuit courts with its interpretation of the
Act, and the "sweeping definition" of the definition of a mine
found in section 3(h) of the Act. Marshall v. Stoudt's Ferry
Preparation Co., supra; Cyprus Industrial Minerals Co. v. FMSHRC,
664 F.2d 1116 (9th Cir. 1981); Harman Mining Corp. v. FMSHRC,
671 F.2d 794 (4th Cir. 1981).
Erie Blacktop, Inc., 3 FMSHRC 135 (January 1981), concerned
an operator who was engaged in a road paving and blacktopping
operation which was not subject to MSHA's enforcement jurisdiction. However, the operator simultaneously utilized front-end
loaders, a secondary crusher, and other equipment while engaged
in a limestone mining operation which mined, crushed, and
processed limestone, some of which was sold to and used by the
Corps of Engineers for certain lake erosion projects, as well as
for road and paving projects.
I found that the respondent's
limestone operation constituted a mining operation subject to the
Act, as well as to MSHA's enforcement jurisdiction and the mandatory safety and health standards found in Part 56 of Title 30,
Code of Federal Regulations.
San Juan Cement Company, Inc., 2 FMSHRC 2602 (September
1980), concerned an open pit limestone quarry which extracted
limestone for use in the production of cement. The limestone was
crushed to produce a finely ground power used in the finished
product,. and the judge held that this was a crushed stone operation subject to the requirements of Part 56 of Title 30, Code of
Federal Regulations.
Nevada Mineral Processing, Docket No. WEST 88-273-M, decided
by Judge Lasher on May 24, 1989, concerned a small gold and
silver milling operation which did not extract the minerals, but
did process and assay them using conveyors, a crusher, and a
pulverizer. Judge Lasher concluded that the facilities and
equipment were used in the work or milling or preparing the
minerals, and that the operation clearly fell within the definition of a mine found in section 3(h) (1) of the Act, and was
subject to the standards found in 30 C.F.R., Part 56.
In National Cement Company, Inc., 3 FMSHRC 1951 (August
1981), I rejected an operator's contentions that it was not
operating a "mine" within the meaning of the Act, or conducting a
"milling operation" within MSHA's jurisdiction. The plant in
question was located 7 miles from a quarry where limestone was
mined and transported by trucks to the plant for screening and
crushing. Another quarry located closer to the plant supplied
limestone by means of conveyor belts.
I found that the plant
constituted a mining operation within the statutory definition
found in section 3(h) (1) of the Act, and I stated as follows at
3 FMSHRC:

1385

It seems clear to me that the statutory definition
of a mine establishes that it was Congress' intent that
MSHA regulate any milling activity which is an integral
part of a mine, since mines fall within the specialized
jurisdiction of MSHA and since mine employees typically
operate such facilities.
On the facts of this case, it
also seems amply clear to me that the respondent's
cement plant, even if it can be classified as a milling
operation, is still an integral part of its limestone
mining operation. Without the raw mineral material
(limestone) respondent could not produce cement.
Therefore, it seems further clear to me that respondent's operations, whether they be characterized as a
crushed stone operation or a milling operation, are
both subject to the Act as well as to MSHA's enforcement jurisdiction, and my conclusions in this regard
are based on the statutory aforementioned definition of
the term "mine" as well as the MSHA-OSHA memorandum of
understanding.
The facts in the instant proceedings establish that MSHA has
exercised its enforcement jurisdiction and authority over the
respondent's rock plants since November, 1986, when it first
visited the site at the respondent's invitation to conduct a CAV
consultation visit which resulted in the issuance of non-penalty
notices of violations. Regular inspections followed which
resulted in the issuance of several non-compliance violations.
All of these inspection activities have been limited to the
respondent's rock plants, and did not include the actual dam
construction work.
The local Puerto Rico OSHA (PROSHA) has also conducted
inspections at the worksite, but apparently only pursuant to
specific complaints. After the issuance of the contested citations in these proceedings, respondent's safety engineer Fulghum
asserted that MSHA lacked jurisdiction over the rock plants, and
a subsequent meeting between MSHA and local PROSHA representatives did not result in any agreement to consolidate jurisdiction
with one agency.
I take note of the fact that although the
interagency agreement in question provides that where questions
of jurisdiction cannot be resolved at the local level, they shall
be.submitted to the National Offices of the agencies and, if
still unresolved, to the Secretary of Labor, the respondent has
not sought such advise or rulings from these National Offices,
and raised the jurisdictional issue after the inspection which
resulted in the contested citations.
With regard to the interagency agreement, the respondent has
obviously seized on the definition of "milling" and has focused
on that definition to support its argument that it is not engaged
in a mining activity. However, respondent has conveniently

1386

overlooked th~ fact that its limestone rock crushing and processing activities fall precisely within the examples cited in the
agreement of identical mineral and mining operations which MSHA
has authority to regulate. The court in the Carolina Stalite
Company case, supra, found these examples to be of particular
relevance in finding that Stalite's activities were subject to
the Act and MSHA's regulatory authority.
The respondent's narrow view that milling is limited to the
separation of valuable ore from undesirable contaminants for its
intrinsic value for sale or use in the general market place is
rejected.
I believe the term milling, as used in the Mine Act,
has a broader definition which is in keeping with the intent of
Congress that the Act be broadly construed with respect to any
regulatory enforcement, and that any jurisdictional doubts be
resolved in favor of including a facility within the coverage of
the Act. While it may be true that any typical milling operation
may involve some separation of the valuable ore from the contaminants, I find no such requirement in the Act or MSHA's
regulatory standards, and I agree with the petitioner's argument
that the interagency agreement cannot supercede the language
found in the Act.
The respondent's reliance on the language found in the MSHA
policy manual of July 1, 1988, which states that MSHA has jurisdiction only over operations whose purpose is to extract or to
produce a mineral, and does not have jurisdiction where a mineral
is extracted incidental to the primary purpose of the activity is
rejected.
In the first place, such policy memorandums are not
binding on the Commission and may not supercede the plain jurisdictional language found in the Act, and the controlling case
precedents.
Brock v. Cathedral Bluffs Shale Oil Co., BNA 4 MSHC
1033 (D.C. Cir. 1986). Further, as correctly pointed out by the
petitioner, the limestone material extracted by the respondent is
extracted for its intrinsic value as a commodity, and then
processed and used in the construction of the dam (Tr. 279,
brief, at pg. 9). Further, as noted earlier, the dam was located
at the site in question because of the availability of the limestone, and when the on-site deposits were being depleted, the
respondent had to look to other sources to continue with the
project. In short, the availability, extraction, processing, and
use of the limestone is a critical part of the dam construction
activity.
The credible testimony and evidence reflects that the location of the dam site was selected because of the projected availability of calciferous rock, mostly limestone and siltstone,
which is desirable for producing coarse and fine filter material
for the dam embankment. The limestone is blasted and/or excavated by a D-9 ripper from the dam spillway area and it is processed at the primary and/or secondary rock plants where it is
crushed,
screened, sized, and stockpiled for use in the dam
I

1387

construction. The processing includes the sizing of the rock
materials to meet the rock size and stability criteria established by the Corps of Engineers. While it is true that the
respondent does not extract any particular mineral from the
excavated rock, the excavated material which is processed at
these rock plants is used in some phase of the construction
project. Limestone materials purchased from nearby quarries are
bought on-site and are processed at the respondent's filter or
terciary plant, and they are also used for the project, including
the production of cement for use in the dam construction.
Inspector Torres confirmed that he has observed the extraction and processing of limestone at the site, and that this
included the use of explosives, bulldozers, front-end loaders,
haulage trucks, grizzles, screens, and primary and secondary
crushers and conveyor belts. Inspector Perez confirmed that he
has observed materials being processed at the plant, and that it
included "washing, classifying, and grinding."
The respondent agrees that the term "Mill," as defined in
30 C.F.R. § 56.2, includes the excavation of minerals, including
limestone, and any crushing, grinding, or screening plant used in
connection with such excavation, and concedes that its activities
have these same similarities and characteristics, and fall within
the definition of "Mill" as stated in section 56.2. The respondent acknowledged that it engaged in excavation work, and operates a screening and crushing plant that fall within this
definition (Tr. 265-266). It also conceded that the sizing and
crushing of limestone defines a milling process which is subject
to MSHA's jurisdiction (Tr. 275).
In view of the foregoing findings and conclusions, and after
careful consideration of all the arguments and evidence adduced
in these proceedings, I agree with the petitioner's position in
this case, and I conclude and find that the respondent's rock
processing plants constitute a "mine" within the meaning of
section 3(h) (1) of the Act, and that its facilities, equipment,
and machines in these plants are used for mineral milling within
the meaning of the Act and MSHA's definition of "mill" found in
30 C.F.R. § 56.2. I further conclude and find that MSHA has
inspection and enforcement jurisdiction and authority over these
rock processing activities. The respondent's arguments to the
contrary ARE REJECTED.
Interstate Commerce Issue
Section 4 of the Act provides as follows:
Each coal or other mine, the products of which
enter commerce, or the operations or products of which
affect commerce, and each operator of such mine and

1388

every miner in such mine shall be subject to the
provisions of this Act.
"Commerce" is defined in section 3(b) of the Act as follows:
Trade, traffic, commerce, transportation or communication among the several states, or between a place
in a state and any place outside thereof, or within the
District of Columbia, or a possession of the United
States, or between points within the same state but
through a point outside thereof.
The use of the phrase "which affects commerce" in Section 4
of the Act, indicates the intent of Congress to exercise the full
reach of its constitutional authority under the commerce clause.
See: Brennan v. OSHA, 492 F.2d 1027 (2nd Cir. 1974); U.S. v. Dye
Construction Co., 510 F.2d (10th Cir. 1975); Polish National
Alliance v. NLRB 332 U.S. 643 (1977); Godwin v. OSHRC, F.2d 1013
(9th Cir. 1976).
Perez v. United States, 402 U.S. 146 (1971), held that
Congress may make a finding as to what activity affects
interstate commerce, and by doing so it obviates the necessity
for demonstrating jurisdiction under the commerce clause in
individual cases. Thus, it is not necessary to prove that any
particular intrastate activity affects commerce if the activity
is includ~d in a class of activities which Congress intended to
regulate because that class affects commerce.
Mining is among those classes of activities which are
covered by the Commerce Clause of the United States Constitution
and thus is among those classes which are subject to the broadest
reaches of Federal regulation because the activities affect
interstate commerce. Marshall v. Kraynak, 457 F. Supp. 907,
(W.D. Pa. 1978), aff'd, 604 F.2d 231 (3d Cir. 1979), cert.
denied, 444 U.S. 1014 (1980).
Further, the legislative history
of the Act, and court decisions, encourage a liberal reading of
the definition of a mine found in the Act in order to achieve the
Act's purpose of protecting the safety of miners. Westmoreland
Coal Company v. Federal Mine Safety and Health Review Commission,
606 F.2d 417 (4th Cir. 1979). See also: Godwin v. Occupational
Safety and Health Review commission, 540 F.2d 1012 (9th Cir.
1976), where the court held that unsafe working conditions of one
operation, even if in initial and preparatory stages, influences
all other operations similarly situated, and consequently affect
interstate commerce.
t:

The courts have consistently held that mining activities
which may be conducted intrastate affect commerce sufficiently to
subject the mines to Federal control. See: Marshall v. Kilgore,
478 F. Supp. 4 (E.D. Tenn. 1979); Secretary of the Interior v.
Shingara, 418 F. Supp. 693 (M.D. Pa. 1976); Marshall v. Bosack,

1389

463 F. Supp. 800, 801 (E.D. Pa. 1978). Likewise, Commission
judges have held that intrastate mining activities are covered by
the Act because they affect interstate commerce. See: Secretary
of Labor v. Rockite Gravel Company, 2 FMSHRC 3543 (December
1980); Secretary of Labor v. Klippstein and Pickett, 5 FMSHRC
1424 (August 1983); Secretary of Labor v. Haviland Brothers Coal
Company, 3 FMSHRC 1574 (June 1981); Secretary of Labor v. Mellott
Trucking Company, 10 FMSHRC 409 (March 1988).
A state highway department operating an intrastate open pit
limestone mine, the product of which is crushed, broken and used
to maintain county roads was held to be subject to the Act. Ogle
County Highway Department, 1 FMSHRC 205 (January 1981).
A crushed stone mine operation that had an MSHA "Mine ID"
number and was inspected by MSHA was held to be subject to the
Act because the sales of rock products, as well as the use of
equipment manufactured out of state, affected commerce within the
meaning of the Act's jurisdictional language. Tide Creek Rock
Products, 4 FMSHRC 2241 (December 1982). See also: Southway
Construction Co., 6 FMSHRC 174 (January 1984).
A gravel mine operator conducting activities solely within a
state was held to be subject to the Act because its local mining
activity had an impact on interstate market. Rockite Gravel Co.,
2 FMSHRC 2543 (December 1980) , Commission Review Denied
January 13, 1981; Scoria Products Branch, Ultra, Inc.~ 6 FMSHRC
788 (March 1984); Southway Construction Co., supra.
N.Y.S. Department of Transportation, 2 FMSHRC 1749 (July
1980) ; Island County Highway Department, 2 FMSHRC 3227 (November
1980); and County of Ouray. Colorado, 9 FMSHRC 1205 (July 1987),
all held that products affect commerce where they have an
intrinsic value as a commodity which would have to be purchased
elsewhere if not produced by the operator.
In the instant case, Inspector torres confirmed that most of
the respondent's equipment, such as the Caterpillar haulage
trucks, and bulldozers, crushers, etc., were shipped to
Puerto Rico from the states (Tr. 165-166). Mr. Fulghum confirmed
this and stated that all of the equipment used at the rock plant
facilities in question originated from sources outside of
Puerto Rico and was brought in from another dam site located in
California (Tr. 361). He also confirmed that the respondent's
parent company, Dillingham Construction International, is a
Nevada Corporation, that the Cerrillos Dam Project is one conducted by Dillingham Construction, a Delaware Corporation, and
that Dillingham North America, which has constructed dams in
California, is a California corporation (Tr. 219-220). Use of
equipment that has moved in interstate commerce affects commerce.
See United States v. Dye Construction Co., 510 F.2d 78 (10th Cir.
1975).
In addition, although it may be true that the limestone

1390

excavated and processed by the respondent at the dam site was
used intrastate, given the broad interpretation and coverage of
the Act as intended by Congress, and as construed by the courts,
it may reasonably be inferred that such use of the mined product
would necessarily impact upon interstate commerce.
See Fry v.
United States, 421 U.S. 542, 547 (1975).
I conclude and find that the respondent's limestone rock
processing activities and plants, including the facilities,
equipment, and machines used in the processing of the limestone
for use in the construction of the dam, which I have concluded
constitutes a mining operation covered by the Act, affect
commerce within the meaning of the Act, and that the respondent
is within its reach.
Federal Pre-Emption
The respondent's assertion that since the enforcement of its
dam construction activities has been delegated to the local
Puerto Rico OSHA department, MSHA's regulation of these
activities at the site is improper, is rejected. The same argument has been raised in cases in which Commission judges have
consistently held that state and federal OSHA statutes do not
preempt the 1977 Mine Act.
See:
Brubaker-Mann, Inc., 2 FMSHRC
227 (January 1980) ; Valley Rock and Sand Corporation, 4 FMSHRC
113 (January 1982); Black River Sand and Gravel, Inc., 4 FMSHRC
743 (April 1982); San Juan Cement Company, Inc., 2 FMSHRC 2602
(September 1980); Sierra Aggregate Co., 9 FMSHRC 426 (March
1987).
I agree with these holdings, and take note of the fact
that section 506 of the 1977 Mine Act permits concurrent state
and federal regulation, and that under the federal supremacy
doctrine, a state statute is void to the extent that it conflicts
with a valid federal statute.
Dixie Lee Ray v. Atlantic
Richfield Company, 435 U.S. 151, 55 L.Ed.2d 179 (1978); Bradley
v. Belva Coal Company, 4 FMSHRC 982, 986, (June 1982).
Fact of Violations
The respondent is charged with five violations of the equipment guarding requirements of 30 C.F.R. § 56.14001, which
provides as follows:
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.
In Secretary of Labor v. Thompson Brothers Coal Company,
Inc., 6 FMSHRC 2094, (September 24, 1984), a case involving the
guarding requirements of section 77.400(a), a surface mining
standard containing language identical to section 56.14001, Judge

1391

Broderick rejected an operator's contention that it was virtually
impossible for a person not suicidally inclined to contact the
unguarded moving parts in question.
In affirming the violation,
Judge Broderick accepted the testimony of the inspector that the
unguarded parts were accessible and might be contacted by persons
examining or working on the equipment. In affirming Judge
Broderick's decision, the Commission interpreted the application
of the guarding standard as follows at 6 FMSHRC 2097:
The standard requires the guarding of machine
parts only when they "may be contacted" and "may cause
injury." Use of the word "may" in these key phrases
introduces considerations of the likelihood of the
contact and injury, and requires us to give meaning to
the nature of the possibility intended. We find that
the most logical construction of the standard is that
it imports the concepts of reasonable possibility of
contact and injury, including contact stemming from
inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness.
In related
contexts, we have emphasized that the constructions of
mandatory safety standards involving miners' behavior
cannot ignore the vagaries of human conduct. See,
g.g., Great Western Electric, 5 FMSHRC 840, 842 (May
1983); Lone Star Industries, Inc., 3 FMSHRC 2526, 2531
(November 1981). Applying this test requires taking
into consideration all relevant exposure and injury
variables, g.g., accessibility of the machine parts,
work areas, ingress and egress, work duties, and as
noted the vagaries of human conduct. Under this
approach, citations for inadequate guarding will be
resolved on a case-by-basis.
The reliable and probative unrebutted testimony of the
inspector establishes that guards were not provided or in place
on the cited equipment in question. With respect to four of the
citations, the inspector confirmed that maintenance is only
performed when the equipment is shutdown, and this obviously
served as the basis for his non-S&S findings as to those citations.
In my view, the fact that the equipment was not in operation at the time of the inspection, or the fact that it is
shutdown when serviced, may serve to mitigate the gravity or
seriousness of the violation, but may not serve as an absolute
defense to the requirement of the standard that the equipment
components detailed therein be guarded. The intent of the
standard is that exposed moving machine parts which may be contacted by persons in the normal course of mining activity and in
the normal course of their work duties in or around such equipment be guarded to prevent contact, either inadvertently, or from
inattention or carelessness. As stated in the Thompson Brothers
case, any determination as to whether or not a reasonable
possibility of contact with unguarded machine parts will occur

1392

must be considered in the context of the criteria stated in that
decision, including the fact that once normal plant production
operations begin, miners may be exposed to hazards resulting from
unguarded equipment.
With regard to the lack of guarding on the feeder motor
belts, the inspector stated that employees would be in the area
on a daily basis to clean spillage, and that at least one person
would be present for inspection once the plant started up. He
believed that anyone caught in the unguarded motor belts could
lose a finger or an arm, or suffer disabling injuries. Access
was provided to the plant third level primary screening station
where the unguarded equipment was located by means of a
ladderway.
With regard to the unguarded conveyor belt counterweight
pulley, although it was located 20 to 25 feet above ground level,
the inspector confirmed that it was located next to a walkway and
that the unguarded area was approximately 8 inches from the
walkway. He stated that the walkway provided an access way to
the transfer point behind the pulley, and that employees would
regularly walk by the unguarded pulley. Given the size of the
pulley, and his past experience that accidents have occurred by
employees being caught by an unguarded pulley of this size, he
believed.that anyone caught in the unguarded pulley in question
would suffer fatal injuries.
With respect to the unguarded belt tail pulley at the
secondary crusher plant, the inspector confirmed that it was
located approximately 1 foot from the floor level, and while a
guard had previously been provided, it had been removed and not
replaced. This pulley was about the same size as the previously
cited counterweight pulley, and the inspector believed that at
least one maintenance man would be exposed to the hazard of being
caught in the unguarded pulley.
With regard to the unguarded belt tail pulley located in the
secondary crusher plant at ground level under the cone crusher,
the inspector stated that he was advised that a guard had been
provided, but had been removed. He confirmed that employees
would in the area for clean-up and maintenance work, and would be
exposed to a hazard.
The respondent's testimony and evidence does not rebut the
inspector's findings that at the time of his inspection and
observation of the equipment, guards were not provided or in
place on the cited equipment in question. The respondent's
defense is that no employees were exposed to any hazard because
the plant was not in operation at the time of the inspection and
that the equipment was shutdown and locked out for maintenance.
Mr. Fulghum, the only witness presented by the respondent, was

1393

not with the inspector at the time of his inspection and observations, and he maintained that section 56.14001, only applies when
the equipment is in operation and there are moving parts which
may be contacted and result in injuries. Mr. Fulghum asserted
that he was informed by the shift superintendent Ike Tabor, that
the guards had been removed on the morning of the inspection and
were in the shop for repairs, and had been replaced by the time
the plant had started up later that same day. Mr. Fulghum further asserted that Mr. Tabor explained this to the inspector at
the time of the· close-out conference on the day following the
inspection.
Inspector Torres testified that when he left the site no one
said anything to him about the guards being replaced before the
plant started operation, and if they had, he would have gone back
to terminate the citations (Tr. 407). He also confirmed that no
one called him back to terminate the citations, and that during
the close-out conference, Mr. Fulghum arrived late at the end of
the conference, and said nothing to him about the guards being
removed for repair (Tr. 409-410). Mr. Torres stated that
Mr. Fulghum advised him that he would take the matter up with his
supervisor, and that after Mr. Fulghum met privately with
Mr. Tabor at the end of the conference, Mr. Tabor informed him
for the first time that the guards had been removed and were in
the shop for repairs. Mr. Torres believed that it would have
been impossible to reinstall all of the missing guards prior to
the time production resumed on the day of his inspection (Tr.
401) .
Mr. Tabor was not called to testify in this case, and I find
Mr. Fulghum's testimony as to what Mr. Tabor purportedly told him
with respect to the removal and replacement of the guards in
question to be less than credible. I find Mr. Torres to be a
credible witness and I believe his version of the events in
question.
Mr. Fulghum also defended the violations on the ground that
section 56.14006, permits the removal of equ'ipment guards when
the equipment is being tested, and that in order to comply with
section 56.14007, which requires that guards be of substantial
construction and properly maintained, the most common way of
doing this is to remove them during the shutdown procedure.
These defenses are rejected.
I find no credible evidence that
the equipment in question was being tested at the time of the
inspection, nor do I find any credible evidence that the guards
were removed for maintenance or repair. With respect to
Mr. Fulghum's argument that the respondent was in compliance with
section 56.14029, because the equipment was shutdown when maintenance was performed, while this may true, I find it irrelevant.
The respondent is not charged with violations of any of these
other standards.
It is charged with failing to provide guards on
the cited equipment as required by section 56.14001.

1394

I conclude and find that the credible testimony of the
inspector establishes that the cited unguarded equipment constituted violations within the meaning and intent of section
56.14001, and that it supports each of the violations.
Accordingly, the citations ARE AFFIRMED.
Citation Nd. 285900 - 30 C.F.R. § 56.11002
The respondent is charged with a violation of section
56.11002, which provides as follows:

Crossovers, elevated walkways, elevated ramps, and
stairways shall be of substantial construction provided
with handrails, and maintained in good condition.
Where necessary, toeboards shall be provided.
The inspector's unrebutted credible testimony establishes
that the feeder walkway or platform located at the third level of
the screening plant which was elevated approximately 12 feet from
the next lower level was not provided with handrails. The
elevated walkway was constructed and maintained to provide access
to the number three feeder which was in the process of being
modified.
I conclude and find that the intent of the cited
standard is to provide handrails at such locations in order to
provide employees performing work with some means of protection
against potential falls.
Respondent's witness Fulghum confirmed that the cited platform or walkway was part of the respondent's plant, and he did
not deny the absence of handrails. Mr. Fulghum took the position
that the three employees observed by the inspector on the elevated platform cleaning up and performing maintenance work were
not employees of the respondent, but were employed by a contractor. Mr. Fulghum had no personal knowledge of this, and simply
stated that Mr. Tabor told him during the closing conference that
the employees worked for a contractor. Mr. Tabor did not testify
in this case, and the inspector testified that Mr. 1~bor confirmed to him that the employees worked for the respondent.
The respondent's defense is rejected.
I accept the inspector's testimony as credible, and find that the three employees
who were working on the platform in the respondent's plant and
which was used to access the feeder owned by the reipondent were
exposed to a hazard of falling, and that the respondent is properly accountable for the violation.
I conclude and find that the
failure by the respondent to provide the required handrails
constitutes a violation of section 56.11002, and the citation IS
AFFIRMED.

1395

Citation No. 2859002 - 30 C.F.R. § 56.11002
The respondent is also charged with a second violation of
section 56.11002, for failure to provide handrails on the No. 6
feeder platform located at the second level of the secondary
crusher plant. The inspector's credible testimony establishes
that the platform was located approximately 10 feet above the
second level floor and that it was used to provide maintenance
for the shakers located on the platform. The inspector's
unrebutted testimony also establishes that no handrails were
provided, and Mr. Fulghum did not deny the absence of the handrails. Under the circumstances, I conclude and find that a
violation has been established, and the citation IS AFFIRMED.
Citation No. 2859004 - 30 C.F.R. § 56.9007
The respondent is charged with a violation of section
56.9007, which provides that "Unguarded conveyors with walkways
shall be equipped with emergency stop devices or cords along
their full length." The inspector's unrebutted testimony establishes that the cited No. 8 belt conveyor located in the
secondary plant had an adjacent walkway which was parallel to the
belt, and that the belt and walkway were inclined. The inspector
confirmed that the walkway was regularly used by employees as a
means of access from ground level to the crusher, and that the
emergency stop cord, which was approximately 100 feet long, was
broken in the middle and lying on the walkway.
Mr. Fulghum conceded that the stop cord in question was .
broken, and his defense is that the plant was shutdown and locked
out, and that in the course of routine maintenance, someone would
have found the broken cord and repaired it before production
began. He confirmed that Mr. Tabor informed him that he was
aware of the broken cord, and that it was repaired before production began. This defense is rejected.
I conclude and find that
a violation has been established, and the citation IS AFFIRMED.
Citation No. 2859007 - 30 C.F.R.

§

56.15003

The respondent is charged with a violation of section
56.15003, which states that "All persons shall wear suitable
protective footwear when in or around an area of a mine or plant
where a hazard exists which may cause an injury to the feet."
The inspector's belief that the standard requires employees to
wear "steel-toed safety shoes" is incorrect. The standard only
requires the wearing of "suitable protective footwear" without
further elaboration. What may be suitable in one instance may
not be suitable in another, and each situation must be addressed
on a case-by-case basis.
In this case, Mr. Fulghum's credible testimony establishes
that the respondent supplies steel protective footwear for its

1396

employees, and he believed that leather boots are "suitable
footwear" within the meaning of the standard~ While this may be
true, the credible testimony of the inspector reflects that one
of the individuals who he observed cleaning up under the plant
screening station was wearing ordinary tennis shoes of the
"basketball variety." The inspector believed that this employee
was exposed to a hazard of being struck on the foot by large
rocks falling from the belt or from some of the upper levels of
the plant. with regard to the other individuals, the inspector
could offer no credible testimony or evidence as to the kinds of
shoes they were wearing, and he did not speak to any of these
individuals, nor did he inspect their footwear. Under the circumstances, I conclude and find that the one individual who was
wearing tennis shoes did not comply with the cited standard in
that ordinary tennis shoes are not "suitable" within the meaning
and intent of the standard, and to this extent, a violation has
been established. With respect to the other individuals, I
conclude and find that there is insufficient evidence to estab1 ish any violation on their part. Under the circumstances, with
respect to the employee who was wearing tennis shoes, the citation is limited to that one individual, and it IS AFFIRMED.
Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated significant and substantial ''if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum the Secretary of Labor must
prove:
(1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is,
a measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:

1397

We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987) .
Citation No. 285900, 30 C.F.R. § 56.11002
Based on the credible testimony of the inspector, I conclude
and find that the violation concerning the lack of handrails on
the walkway around the No. 3 feeder located on the third level of
the screening station tower was significant and substantial.
Three employees were observed performing clean-up and maintenance
work on the walkway which was elevated some 12 feet above the
next lower level.
In the event of a fall, I conclude and find
that the employees would likely suffer injuries of a reasonable
serious nature. Under the circumstances, the inspector's S&S
finding IS AFFIRMED.
Citation No. 2859001, 30 C.F.R.

§

56.14001

With regard to the violation concerning the unguarded No. 5
conveyor belt counterweight pulley, I agree with the inspector's
S&S finding.
The evidence establishes that the guard usually
provided for this large pulley had been removed and that the
unguarded pulley area was approximately 8 inches from the edge of
the adjacent walkway which was regularly used by employees as an
access way to the transfer point behind the pulley.
I conclude
and find that in the event of a stumble or other inadvertent
contact with the exposed and unguarded pulley while the belt was
in operation, one would likely sustain injuries of a reasonably
serious nature. Accordingly, the inspector's S&S finding IS
AFFIRMED.

1398

Citation No. 2859004, 30 C.F.R.

§

56.9007

With regard to the violation concerning the broken conveyor
belt emergency stop-cord, the inspector confirmed that the belt,
which was used to convey stone materials from the ground level up
the inclined belt to the stone crusher, was running at the time
of his inspection. Although the inspector observed no one on the
walkway adjacent to the belt at the time of his inspection, he
confirmed that the walkway was used on a regular basis by
employees who would walk along the walkway from ground level up
to the cone crushers at the top level, and in the event someone
were to fall into the moving conveyor, the inspector believed
that he would likely suffer injuries and the belt could not be
stopped because the emergency stop cord was broken.
However,
there is no evidence or testimony from the inspector from which
one can conclude that it was reasonably likely that someone
walking along the walkway adjacent to the belt would fall into or
onto the moving conveyor belt. There is no evidence that
employees ride the belt, nor is there any evidence with respect
to whether the belt was elevated above the walkway, or whether it
was recessed below the walkway in such a manner as to allow
someone to readily fall into it.
In short, I find no credible
evidentiary support for the inspector's belief that someone
simply walking along the walkway would likely fall into or onto
the belt, or be exposed to any hazard from the materials on the
belt. Under the circumstances, I cannot conclude that the evidence advanced by the petitioner in this instance supports the
inspector's S&S finding.
Accordingly, his finding IS VACATED,
and the citation is modified to a non-S&S citation.
Citation No. 2859007, 30 C.F.R. § 56.15003
With regard to the violation concerning the employee who was
wearing tennis shoes, the inspector conceded that he was wearing
a hard hat, that the equipment was shutdown while the individual
was cleaning up around it, and that cleaning and maintenance work
is only performed when the equipment is shutdown. Although the
inspector believed that someone could sustain a foot injury by
rock falling off the conveyor belt (Tr. 95), I have difficulty
comprehending how this would occur if the conveyors are shutdown
while clean-up is being performed. Further, although the inspector also believed that an injury could occur if a heavy tool or
equipment fell on someone's foot, there is no evidence that the
employee wearing tennis shoes used any such tools or handled any
heavy equipment which would likely fall and strike him on the
feet.
As for the inspector's belief that the employee could have
been struck from a rock falling from an unspecified location
above where he was working, I find his testimony to be speculative at best, and lacking in credible and probative value. Under
the circumstances, I cannot conclude that the evidence advanced

1399

by the petitioner supports the inspector's S&S finding. Accordingly, IT IS VACATED, and the citation is modified to a non-S&S
citation.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business
The evidence establishes that approximately 32 to 36
employees out of a total employment compliment of 332 employees
working in the dam project in question were engaged in the
respondent's limestone processing operations (Tr. 148, 156).
While there is no direct evidence as to the amount of limestone
materials actually processed by the respondent, the information
which appears in MSHA's proposed civil penalty assessments pleadings with respect to the respondent's size reflects an annual
production tonnage or manhours worked as 102,559, and the parties
stipulated that this was the case.
I conclude and find that the
respondent is a small operator.
I also conclude and find that
the civil penalty assessments for the violations which have been
affirmed will not adversely affect the respondent's ability to
continue in business.
History of Prior Violations
The parties stipulated that the respondent's history of
prior assessed violations consists of ten (10) civil penalty
assessments made by MSHA in 1987. I cannot conclude that the
respondent's history of prior violations is such as to warrant
any additional increases in the civil penalty assessments which I
have made for the violations in question in these proceedings.
Good Faith Compliance
The record establishes that on February 5, 1988, MSHA
extended all of the abatement times until May 1, 1988, because
the respondent's plant facilities were non-operational due to an
expansion. All of the citations which are the subject of Docket
No. SE 88-59-M, were terminated on April 21, 1988, and the citation in issue in Docket No. SE 89-23-M, was terminated on
September 7, 1988. All of the terminations were based on the
fact that the respondent corrected the cited conditions, and
Inspector Perez confirmed that all of the citations were terminated on schedule (Tr. 181). Further, the parties agreed that
all of the citations were timely abated in good faith by the
respondent. Under the circumstances, I conclude and find that
the respondent timely abated all of the violations in good faith.
Negligence
The inspector's moderate negligence findings as to each of
the violations ARE AFFIRMED, and I conclude and find that all of

1400

the violations resulted from the failure by the respondent to
exercise reasonable care.
Gravity
On the basis of the inspector's testimony and findings with
respect to each of the violations, including my findings and
modifications with respect to the inspector's S&S findings, I
conclude and find that Citation Nos. 2859000 and 2859001 are
serious, and that the remaining citations are non-serious.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section llO(i) of the
Act, I conclude and find that the following civil penalty assessments for the violations which have been affirmed are reasonable
and appropriate in the circumstances of these proceedings:
Docket No. SE 88-59-M
Citation No.

Date

30 C.F.R. Section

Assessment

2858999
2859000
2859001
2859002
28590'03
2859004
2859005
2859006

09/01/87
09/01/87
09/01/87
09/01/87
09/01/87
09/01/87
09/01/87
09/01/87

56.14001
56.11002
56.14001
56.11002
56.14001
56.9007
56.14001
56.14001

$ 20
$350
$250
$ 20
$ 20
$ 20
$ 20
$ 20

Docket No. SE 89-23-M
Citation No.

Date

30 C.F.R. Section

Assessment

2859007

09/01/87

56.15003

$ 20

ORDER
The respondent IS ORDERED to pay civil penalty assessments
in the amounts shown above within thirty (30) days of the date of
these decisions, and upon receipt of payment by the petitioner,
these proceedings are dismissed.

1401

Distribution:
William G. Staton, Esq., Office of the Solicitor, U.S. Department
of Labor, 201 Varick Street, Room 707, New York, NY 10014
(Certified Mail)
Anibal Irizarry, Esq., McConnell, Valdes, Kelley Sifre, Griggs &
Ruiz-suria, G.P.O. Box 4225, San Juan, PR 00936 (Certified Mail)
/fb

1402

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

22041

.

::-~ ·.~ ~. c~
•.,..

·i .......

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 88-136
A.C. No. 46-05682-03502

v.
Ward Mine
TEN-A-COAL COMPANY,
Respondent
DECISION
Appearances:

Anita D. Eve, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Patrick H. Cunningham, Partner, Ten-A-Coal
Company, Clarksburg, West Virginia, pro se, for
the Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a),
seeking civil assessments in the amount of $504 for three alleged
violations of certain mandatory safety standards found in
Part 77, Title 30, Code of Federal Regulations.
The respondent
filed an answer denying the alleged violations, and a hearing was
held in Clarksburg, West Virginia.
The petitioner filed a
posthearing brief, but the respondent did not.
I have considered
the petitioner's arguments, as well as the oral arguments made on
the record by the parties during the hearing in my adjudication
of this case.
Issues
The issues presented in this proceeding are (1) whether the
respondent has violated the provisions of the Act and implementing regulations as alleged in the proposals for assessment of
civil penalties and, if so, (2) the appropriate civil penalty
that should be assessed against the respondent for the alleged
violation based upon the criteria set forth in section llO(a) of
the Act.
Additional issues include the question of whether the
violations are "significant and substantial," and the effect of

1403

any assessed civil penalties on the respondent's ability to
continue in business.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

Section llO(i) of the 1977 Act, 30

3.

Commission Rules, 20 C.F.R.

§

u.s.c.

§

820(i).

2700.l et seq.

Stipulations
The parties stipulated to the following (Tr. 5-7):
1. The respondent is the owner and operator of
the Ward Mine, a strip mine located in Clarksburg,
West Virginia.
2.
The respondent and the mine are subject to the
jurisdiction of the Act, and the presiding Judge has
jurisdiction to hear and decide this matter.
3. The contested citations were properly served
on the respondent by Frank J. Cervo, a duly authorized
representative of the Secretary of Labor.
4.
The respondent is a small operator, and its
annual company coal production for the year 1988 was
90,569 tons. The Ward Mine had an annual production of
37,544, for this same time period.
5. The respondent's history of prior violations
consists of two violations issued during four inspection days during the 24-months prior to the date of the
issuance of the contested citations.
Discussion
All of the citations in this case are section 104(a) "S&S"
citations issued by MSHA Inspector Frank J. Cervo during the
course of an inspection conducted on November 16, 1987, and they
are as follows:
§

Citation No. 2944563, cites a violation of 30 C.F.R.
77.410, and the condition or practice states as follows:
The audible warning device provided for the
Fiat-Allis dozer in service was inoperative in that
when put in reverse the device would not give an alarm.

1404

§

Citation No. 2944565 cites a violation of 30 C.F.R.
77.410, and the condition or practice states as follows:
The audible warning device provided for the 400
payloader in service was inoperative, when the
payloader was put in reverse the device would not given
an alarm.

citation No. 2944564, cites a violation of 30 C.F.R.
77.1605(a), and the condition or practice is described as
follows:

§

The windshield provided for the Fiat-Allis
31 Dozer in service was cracked at several locations.
Petitioner's Testimony and Evidence
MSHA Inspector Frank J. Cervo, testified as to his background and experience, and he confirmed that he issued Citation
No. 2944563 (exhibit P-1), after determining that a bulldozer
which was pushing spoil, or dirt, against a bank so that the coal
could be removed, and the dirt replaced, had an audible warning
device which was inoperative. Although the device was on the
equipment, it did not work. He was informed that it was working
when it was checked several hours prior to his inspection (Tr.
7-10).
Mr. Cervo stated that the mine is located between two public
and busy highways, and the equipment was operating approximately
400 feet from the road. He estimated that the bulldozer had to
travel approximately 200 feet while pushing the spoil material,
and other than the three pieces of equipment which were operating
in close proximity to each other, he observed no one on foot in
the area where the bulldozer was operating. Mr. Cervo stated
that the visibility to the rear of the bulldozer was very poor
because it is high, and if someone had ventured on the property
and walked behind the machine while it was in reverse, it would
be highly unlikely that the operator would see him.
He confirmed
that the machine would likely operate in first or second gear,
and he estimated the speed at 3 or 5 miles an hour.
The weather
was ~lear and sunny, and other than the noise from the equipment
being operated at the same time, there were no other noise
sources present (Tr. 11-13).
Mr. Cervo stated that he was concerned that curiosity
seekers using the public highway, salesmen, or job applicants
could have come on the mine property without the knowledge of the
equipment operators. He believed that it was reasonably likely
that anyone could be in the area at any given time, and that
given the fact that there have been serious haulage accidents in
the past at other mines involving people "wandering around" mine
property, he believed it was reasonably likely that an accident

1405

would occur, and that is the reason he considered the violation
to be significant and substantial. He also believed that one
individual would be affected by any accident or injury, and
stated that "S&S is negligence on the part of the operator"
because the foreman examined the equipment before it started in
operation, but 3 or 4 hours had passed since the initial examination, and the operators of the equipment should have been trained
to be alert for inoperative audible warning devices.
It was the
equipment operator's responsibility to stop the equipment and
make the necessary repairs as the need occurs (Tr. 16).
Mr. Cerva believed that a prior violation for inoperative alarms
was issued during a prior inspection, but he was not sure (Tr.
17) .

Mr. Cerva confirmed that it is not unusual for a backup
alarm to malfunction because of vibration, weather, or normal
wear and tear, but he did not know what caused the problem in
this particular instance. He confirmed that the condition was
corrected within a half hour. Mr. Cerva agreed that the equipment which was operating in the pit stripping coal would not be a
hazard to any automobiles or people using the highway, and that
any hazard would be confined to the pit area. He confirmed that
the mine office is located in a garage, which is kept locked, and
which was located 2,000 feet from the pit. The garage door has a
sign on it which identified it as the mine office, and he did not
believe that anyone would be in the office after work starts in
the pit. He confirmed that the mine has two entrances along the
roadway, and while there are no signs identifying the mine at
those locations, there are stop signs present (Tr. 20).
Mr. Cerva confirmed that he has observed salesmen at the
mine, and he believed that it was possible for a salesman to
venture into the pit and walk behind a bulldozer while it was
operating in reverse. He also confirmed that he has observed
general curiosity seekers at other mines wandering around mine
property observing coal extraction (Tr. 21). Although he was
generally aware of prior accidents involving bulldozers backing
over people, he could not recall any specific cases where this
has happened (Tr. 22).
Mr. Cerva confirmed that an endloader and shovel were also
operating in the pit area where the cited bulldozer was operating, and he estimated that they operated within 20 to 25 feet of
each other, and if an accident did occur, it would involve one
piece of equipment colliding with another.
He also indicated
that "it could very well be that an operator would get off his
piece of equipment for some reason." He conceded that he issued
the citation "to cover all eventualities" (Tr. 23).
Mr. Cerva stated that when he stopped the bulldozer and
cited it, the other two pieces of equipment stopped operating
within 2 minutes, and the operators got off their equipment to

1406

see what the problem was, and he explained the situation to them
(Tr. 25).
Mr. Cerva believed that more than one piece of equipment operating without workable audible backup alarms would
present a collision hazard, and he believed that the equipment
operators were experienced individuals (Tr. 26).
Inspector Cerva confirmed that he issued Citation
No. 2944565 (exhibit P-2), after finding an inoperative backup
alarm on a payloader which was also pushing dirt.
His inspection
notes reflect that the payloader was not "surrounded by any other
piece of equipment" (Tr. 28).
Since the payloader is high, and
the operator looks through the back window when he is backing up,
Mr. Cerva believed that anyone on the property who may be walking
or wandering through the area could have been run over.
He
believed that the operator's negligence was moderate because the
equipment operators should take care of such problems as they
arise (Tr. 29).
He believed the violation was "S&S" because "if
any employee got off his piece of equipment for any purpose and
go walking across the roadway where this piece of equipment was
operating, he could very well be ran over" (Tr. 30). Mr. Cerva
confirmed that the violation was abated within a half hour, and
he believed that the inoperative alarm condition may have been
caused by a wire which may have loosened due to vibration (Tr.
3 0) •

Inspector Cerva confirmed that he issued Citation
No. 2944564 (exhibit P-2), after observing that the windshield of
the cited bulldozer was cracked in several locations.
He
believed that the operator's visibility would be impaired because
"the cracks were so designed and with the weather being a nice
sunny day you get a rainbow effect" (Tr. 32). Mr. Cerva did not
know how long the condition had existed, and he confirmed that
the bulldozer was the same one he cited for an inoperative alarm
(Citation No. 2944563). Mr. Cerva stated that the cracked windshield was obvious, and "anytime a windshield gets broken during
the day in such a manner that it affects visibility this is the
time to park it" (Tr. 32). He confirmed that section 77.1605(a)
requires that all windshields be maintained in a safe and clean
condition.
Mr. Cerva stated that the windshield in question was cracked
in several locations near the center, and that any cracks started
on the edge would work their way up near the center. He believed
that the cracks in question would be in the line of vision of the
equipment operator, and this would affect his safety because
impaired visibility from shattered or cracked glass would not
allow the operator to see anyone because the machine is high, and
"it only takes a split second.
You cold be on top of somebody"
(Tr. 34).
He explained further at (Tr. 32-34), as follows:

Q. At what point do cracks in the windshield become
severe enough to be considered not in good condition?

1407

A.
Cracks in safety glass will spre~d due to the
stress of the machine, the vibration.
Just a very
small crack. However, there were several cracks in
this one.
For example, if it is in the center or
around the edges that is pointing away from the corner
it is subject to crack at any given time.
And in
addition to that, it has been known that glass, the
machine gets on a stress and the glass kind of rubs
where the crack is and can throw a little bit of debris
back on the operator.
Q.
But at what point would you say that a windshield
is not in good condition, when it has a few cracks or
what?
A.
If a crack is from the edge like the corner and it
goes from one corner to the other, a small crack of
that nature, it makes like a half circle.
It is very
unlikely that will spread.
But if it doesn't go from
corner to corner then it will spread.
In addition to that, once a crack appears with the
strain that the machine gets on and the stress and
vibration with a very small crack even, it is subject
to throw a piece of glass out because it is the weakest
part of that glass now where the crack is.

*

*

*

*

*

*

*

Q. How would this cracked windshield affect the equipment operator himself, if at all?
A.
It could possibly be since it is cracked even
though there is no big sharp edges, if there were sharp
edges it would be different.
But since it is cracked
at several places and you get on a strain from stress
it could throw out a piece of glass between the cracks
and strike the operator.
Mr. Cerva believed that the respondent was negligent for not
ordering a new windshield when the crack first appeared (Tr. 35).
Mr. Cerva confirmed that he permitted the respondent to remove
the windshield in order to have time to order a new one, and that
the equipment was allowed to continue in operation without a
windshield (Tr. 36). Mr. Cerva confirmed that a windshield is
not required, but if it is installed on the equipment, it must be
maintained in good condition (Tr. 37). He agreed that it was not
unusual to have cracks in windshields on equipment operating in
pits (Tr. 38). He also agreed that the phrase "being in good
condition" is subject to different interpretations, and that
depending on the location of a crack, an operator is required to

1408

replace cracked· windshields as they occur.
Impairment of vision
and possible shattering would be two factors to be considered in
making any determination as to whether or not a windshield is in
"good condition" (Tr. 39).
On cross-examination, Mr. Cervo could not recall whether or
not the cited windshield was installed in three sections, i.g.,
one big glass in the center and two smaller ones on each side of
the back. He confirmed that he did not climb into the bulldozer
for a view from the operator's compartment to determine whether
the operator's visibility would be affected by the cracks in
question. He also confirmed that the windshield glass is safety
glass which is designed so that it will not shatter and fly (Tr.
41). When asked how he could determine that the operator's
visibility would be impaired without his getting into the equipment and looking out from the operator's seat, Mr. Cervo stated
"because if I have difficulty distinguishing, looking from the
ground up, I am sure sitting in that seat you would have equal or
greater visibility impairment than I do looking up there.
If I
had to look up and see, I kept watching to get the operator's
attention" (Tr. 41). Mr. Cervo believed that the bulldozer in
question was a second-hand piece of equipment purchased by the
respondent at a sale (Tr. 41).
Mr. Cervo confirmed that when he was attempting to get the
operator's attention by signalling to him, he was standing to the
side of the machine, and that the operator could see him if he
looked out of the side of the machine because there was no glass
there and the windshield would not have impaired his vision (Tr.
43). When asked how he determined that the line of vision of the
operator was impaired, Mr. Cervo responded as follows at (Tr.
44-45):
A.
I went around to the front of the machine after he
had parked it and turned it off.
I went around to the
front of the machine and I looked up to see if I could
see inside from the ground and it was difficult for me
to look up to make any distinguishment of anything
being in there.
MS. EVE:

Thank you.

JUDGE KOUTRAS: That would be virtually impossible.
This machine sets up pretty high, doesn't it?
THE WITNESS:
JUDGE KOUTRAS:
there?

Yes.

That machine sets up pretty high.

You could not very well see what was in

THE WITNESS: Well, you can see the seats, you can see
the steering wheel.
You can see the operator.

1409

JUDGE KOUTRAS: Did you have any difficulty seeing the
operator or the seats or the steering wheel?
THE WITNESS: As well as I can remember, Your Honor, I
had to, after he stopped I looked and looked and yes,
there was a little impairment for me to look up in
there from the ground and I am sure if I had been in
the seat looking out it would have been the same thing.
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:

But you didn't sit in the seat?
No.

I did not.

You just did not think of it?

THE WITNESS: No. It is not that I did not think of
it.
I go up in the cab on a lot of occasions to check
for other things.
But like seat belts, if they are in
a position where they required to wear them and the
cleanliness of the machine, the fire extinguisher and
things of that nature.
Respondent's Testimony and Evidence
Patrick H. Cunningham, the respondent owner and operator of
the mine, testified that his foreman Bob G. Eubanks informed him
that he had checked the cited audible backup alarms on the
morning of the inspection, and that they were operating properly.
Mr. Cunningham stated that the alarms are difficult to maintain
because of the vibration of the equipment, and his equipment
operators are instructed to check them in the morning and at noon
to make sure they are operating. With more than one piece of
equipment operating, the noise is such that equipment operators
"get kind of immune to the warning devices and they don't hear
them unless it is for an inspection" (Tr. 48). He confirmed that
he has operated the equipment and may not hear the alarms except
for periods when he stops to check them (Tr. 48).
With regard to the cracked windshield, Mr. Cunningham conceded that he was aware that it was cracked, but he did not
believe it was cracked enough to cause it to be removed or
replaced.
In his opinion, the cracks did not hamper the visibility of the operator, and that given the fact that it was safety
glass, he did not believe that it was likely that the glass would
be fractured. He also stated that equipment vibration causes
cracks and that "it is tough to keep windshields in this equipment because of the vibration" (Tr. 49).
On cross-examination, Mr. Cunningham stated that he has
experienced cracking in safety glass, but when this occurs, the
glass breaks into small fine pieces, and he has never seen it

1410

"fly at any distance." He confirmed that he probably last
inspected the windshield a few days before the inspection, and
that the cracks in question were down low and would not hamper
vision.
He confirmed that the cracks could possibly have
travelled in the line of vision of the operator between the time
he observed the windshield and the time Mr. Cervo observed it on
the day of his inspection (Tr. 51). He confirmed that he did not
observe the windshield after it was removed because it was broken
up during the process of removing it (Tr. 51, 53-54).
Mr. Cunningham confirmed that he operated the cited bulldozer 2 or 3-days prior to the inspection and that his vision was
not impaired by the cracks in the windshield (Tr. 51). He
believed that the cracks were present when he purchased the
machine 3 or 4-months prior to the inspection (Tr. 53).
Mr. Cunningham stated that he has posted "no trespassing"
signs at the entrance to the mine pit, and that he does not
permit anyone on his operation unless one of his men are with
them.
He believed that it was unlikely that anyone could drive
down to the pit area without one of his operators observing him
and stopping him to determine his reason for being on the
property (Tr. 54).
Mr. Cunningham confirmed that he employs three full-time
employees consisting of a working foreman and two equipment
operators (Tr. 6-7).
He also indicated that his current mine
production is down from past years, and that he averages 1,200 to
1,500 tons a month, and that he is behind in his taxes, and that
his financial condition "is real bad" (Tr. 58). He believes that
the proposed civil penalty assessments for the citations in
question "would hurt us real bad, possibly cause me to have to
close the mines down.
It doesn't seem like a big amount to some
people but a small operator with all the other expenses that we
have, it means quite a bit to us" (Tr. 56). Mr. Cunningham
confirmed that in addition to the pit in question, he operates
two other pits which "are bad" in terms of being profitable (Tr.
57). He conceded that the cited windshield was cracked, and that
the cited backup alarms were inoperative (Tr. 57).
Findings and Conclusions
Fact of Violations
Citation Nos. 2944563 and 2944565
The respondent is charged with two violations of mandatory
safety standard 30 C.F.R. § 77.410, because the warning devices
which were installed on the cited bulldozer and payloader were
inoperative when the equipment was operated in reverse.
The
standard requires that such devices give an audible alarm when
operated in reverse.
The respondent admitted that the alarms

1411

were inoperative, and the evidence presented in support of the
violations establishes that this was the case.
Accordingly, the
violations ARE AFFIRMED.
Citation No. 2944564
The respondent is also charged with a violation of mandatory
safety standard 30 C.F.R. § 77.1605(a), because of a cracked
windshield on a bulldozer.
The cited standard, which covers
loading and haulage equipment, states that "Cab windows shall b~
of safety glass or equivalent, in good condition, and shall be
kept clean." The inspector testified that he cited the condition
after observing several cracks near the center of the windshield
which he believed would impair the operator's visibility.
He
also believed that the cracked windshield was subjected to stress
through machine vibration while it was in operation, and that a
piece of glass could be dislodged and thrown back in the direction of the operator from the area where it was cracked.
The inspector conceded that he did not enter the cab to sit
behind the operator's controls in order to determine whether the
cracks would affect the operator's visibility.
He contended that
he had difficulty in getting the operator's attention while
waving to him from the ground, and implied that this was due to
the operator's impaired visibility due to the cracks.
However,
given the fact that the inspector confirmed that he was standing
to the side of the machine while attempting to signal the operator, and conceded that the operator could clearly see him from
the side of the machine from where he was standing, I find the
inspector's testimony to be lacking in credibility.
The inspector also testified that after the machine was
parked, he went to the front and looked up and found it difficult
to see inside of the cab from the ground.
However, he confirmed
that even though the machine is "pretty high," he could see the
seats, the steering wheel, and the operator, and that "there was
a little impairment for me to look up in there from the ground
and I am sure if I had been in the seat looking out it would have
been the same thing." I find nothing in this testimony to
establish that the windshield cracks impaired the inspector's
ability to see into the cab from his position on the ground.
Mine operator Cunningham testified that he operated the
cited piece of equipment 2 or 3-days prior to the inspection, and
that his vision was not impaired. He believed that the windshield was cracked when he purchased the equipment 3 or 4-months
prior to the inspection, and he did not believe that the glass
would fracture because it was safety glass.
The inspector confirmed that the windshield was constructed of safety glass, and
that such glass is designed so that it will not shatter or fly.
Further, the inspector agreed with Mr. Cunningham that it was not

1412

unusual to have cracks in windshields of the equipment operating
in the pits due to the vibration of the equipment.
The inspector confirmed that windshields are not per se
required to be on the equipment. However, if a windshield is
provided, it must be kept in "good condition." The standard
contains no guidance as to what constitutes "good condition," and
the inspector conceded that this phrase is subject to different
interpretations, and that depending on the location of a crack,
windshields are required to be replaced as they occur. He
believed that impairment of vision and possible shattering were
two factors to be considered in making any determination as to
whether or not a windshield is in "good condition."
I agree with the inspector's opinion that impaired vision
and the possibility of shattering are determining factors in any
assessment as to whether a windshield is in good condition.
However, based on the evidence adduced in this instance, I conclude and find that it is insufficient to establish that the
cracks observed by the inspector impaired the operator's visibility or presented a possible shattering hazard.
I find
Mr. Cunningham's testimony that his vision was not impaired when
he operated the machine with cracks in the windshield to be
credible, and I find it highly unlikely that the safety glass,
which is designed to preclude shattering, would shatter because
of the cracks.
I also take note of the fact that the inspector
permitted the respondent to remove the windshield and to continue
to operate the machine with the windshield completely removed
while a new one was on order. Under all of these circumstances,
I conclude and find that the petitioner has not established that
the cited windshield was not in "good condition." Accordingly, I
cannot conclude that a violation has been established, and the
citation IS VACATED.
Significant and Substantial Violation
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonably likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:

1413

).;

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.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial.
U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Inspector Cerva confirmed that his significant and substantial finding was based on his general awareness of prior accidents at other mines involving people "wandering around" the mine
and placing themselves in a position of being run over by an
equipment operator who may not see them while backing up his
machine with an inoperative backup alarm.
Although Mr. Cerva
could not cite any specific cases where this has occurred, he was
concerned that "curiosity seekers" using the adjacent highway,
salesmen, or job applicants, may venture onto the respondent's
property without the knowledge of the equipment operators, and
place themselves in a position of being run over by one of the
machines.
Mr. Cerva stated that he has observed salesmen visiting the respondent's mine, and has observed "curiosity seekers"
"wandering around" other mines observing coal extraction.
He
also stated that he based his significant and substantial finding
on his belief that an equipment operator leaving his machine ·and
walking in the proximity of another operating piece of equipment
could be run over, expressed a concern over a possible equipment

1414

collision, and confirmed that he issued the citations "to cover
all eventualities."
The evidence in this case establishes that the respondent's
mining operation is very small and that the work force consists
of two equipment operators, and a working foreman.
The inspector
conceded that any hazards would be confined to the mine pit area,
and he agreed that the equipment operators were experienced
miners, and that the normal operating speed of the equipment in
question was 3 to 5 miles an hour in first or second gear.
The
inspector observed no one on foot, and there is no evidence that
any salesmen, job applicants, or trespassers were on the
property, or that such visitations occurred rarely or frequently.
Although the inspector believed that an equipment operator would
have reason to leave his machine, he apparently made no inquiries
of the equipment operators as to whether or not they had any
reason to leave their equipment and be on foot during the course
of their normal work shift.
Aside from the cited inaudible
backup alarms, there is no evidence that any of the equipment was
otherwise defective or had inoperable or defective brakes.
Although one of the machines was cited for a cracked windshield,
the inspector allowed it to continue to operate with the windshield removed, and there is no evidence that this condition
impacted on the operator's view to the rear of the machine.
While the inspector believed that the height of the equipment
created poor visibility to the rear of the machines, the inspector did not climb into the machines to determine whether this was
true or not, and none of the equipment operators were called to
testify in this case.
With regard to the presence of any invitees or trespassers
on the property, Mr. Cunningham's credible testimony reflects
that "no trespassing" signs are posted at the entrance to the
mine, and that the mine office was located 2,000 feet from the
pit, and a sign was posted identifying it as the mine office.
Although Inspector Cerva believed that no one would be at the
mine office during the work shift, I find no credible evidence to
support that conclusion, and Mr. Cunningham's unrebutted credible
testimony reflects that no one is permitted on the site unless he
is accompanied by one of his employees, and Mr. Cunningham found
it highly unlikely that anyone would be in the pit area without
being observed or stopped by one of the equipment operators.
Under these circumstances, I conclude and find that any salesmen
or job applicants would likely go to the mine office to state
their business, and I find it unlikely that they would venture
2,000 feet into the pit area and place themselves in close
proximity to a piece of equipment operating in reverse without
being observed.
With regard to any equipment collision hazard, given the
size of the equipment, and the fact that it is normally operated
at very slow speeds by experienced operators, and in the absence

1415

of any past accidents or incidents of this kind, I find it
unlikely that such an accident would occur, and if it did, I find
it unlikely that it would result in any serious personal injury
to the operator of the equipment.
I take particular note of the inspector's admission that he
issued the citations to cover "all eventualities." Although I
agree that a surface pit mining operation such as the one operated by the respondent generally involves a working environment
exposing miners to potential hazards, the question of whether any
particular violation is significant and substantial must be based
on credible evidence as to the existence of a hazard rather than
on assumptions and speculation. On the facts of this case, and
after careful review and consideration of Inspector Cervo's
testimony in support of his "S&S" findings, I conclude and find
that they were based on general and speculative assumptions with
respect to any hazards exposure, rather than on any specific
prevailing mining conditions from which one could reason~bly
conclude that the equipment operators or anyone else were in fact
exposed to mine hazards likely to result in injuries of a reasonably serious nature.
I further conclude and find that the petitioner has failed to establish by a preponderance of the credible
and probative evidence adduced in this case that the violations
were significant and substantial. Accordingly, the inspector's
findings in this regard are rejected, and they ARE VACATED.
Size of Business and Effect of civil Penalty on the Respondent's
Ability to Continue in Business
The respondent is a very small mine operator, and although I
have taken into consideration Mr. Cunningham's assertion that his
operations may be marginally profitable, I conclude and find that
the payment of the civil penalties assessed for the violations
which have been affirmed will not adversely affect his ability to
continue in business.
History of Prior Violations
The parties stipulated that the respondent's history of
prior violations consists of two violations issued during the
course of four inspection days in the 24-months prior to the
issuance of the contested citations in this case.
I conclude and
find that the respondent has a good compliance record, and I have
taken this into consideration in the assessment of the civil
penalties for the violations which have been affirmed.
Good Faith Compliance
The inspector confirmed that the respondent took immediate
steps to repair the equipment backup alarms, and that the violations were abated within a half hour.
I conclude and find that

1416

the respondent exercised rapid good faith compliance, and I have
taken this into consideration.
Negligence
The inspector made a finding of "moderate" negligence for
both violations, and he believed that the equipment operators are
responsible for stopping the equipment and having it repaired as
the need arises. He also agreed with Mr. Cunningham that the
backup alarms could become inoperative at any time due to the
vibration of the equipment.
I conclude and find that the violations resulted from the respondent's failure to exercise reasonable care and that this constitutes ordinary negligence.
Gravity
On the facts of this case, and for the reasons stated in my
"S&S" findings, I conclude and find that the violations were
non-serious.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section llO{i) of the
Act, I conciude and find that the following civil penalty assessments are reasonable and appropriate for the violations which
have been affirmed:
Citation No.
2944563
2944565

11/16/87
11/16/87

30 C.F.R. Section

Assessment

77.410
77.410

$ 25
$ 25

ORDER
Section 104(a) "S&S" Citation No. 2944564, November 16,
1987, 30 C.F.R. § 77.1605{a), IS VACATED. The respondent IS
ORDERED to pay civil penalty assessments for the two remaining
violations in the amounts shown above within thirty (30) days of
the date of this decision. Upon receipt of payment by the
petitioner, this matter is dismissed.
' ,

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Administrative Law Judge

1417

1

Distribution:
Anita D. Eve, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Mr. Patrick H. Cunningham, Partner, Ten-A-Coal Company, Route 4,
Box 253, Clarksburg, WV 26301 (Certified Mail)
/fb

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ADMINISTRATIVE LAW JUDGE ORDER

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

22041

July 24 ,1989

CONTEST PROCEEDING

RUSHTON MINING COMPANY,
Contestant

v.

Docket No. PENN 89-146-R
Citation No. 2889705; 3/20/89

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

Rushton Mine
Mine ID #36-00856

DECISION AND ORDER DENYING MOTION FOR SUMMARY DECISION
Rushton Mining Company (Rushton) has filed a Motion for
Summary Decision in the captioned case pursuant to Commission
Rule 64, 29 C.F.R. § 2700.64, seeking to vacate the
challenged citation. The citation at issue, No. 2889705,
alleges a violation of the standard at 30 C.F.R. §
70.510(b)(2) and charges as follows:
A plan for the administration of a continuing
effective hearing conservation program was not
submitted for approval within 60 days following the
issuance of the notice of violation that was issued
on 1/17/89. The plan had not been submitted as of
this date, 62 days after the issuance.
There appears to be no factual dispute that indeed a
notice of violation was issued on January 17, 1989, under
section 104(a) of the Act for a violation of 30 C.F.R. §
70.501 under "subpart F-Noise Standard. It is also
undisputed that the citation on its face stated that a
hearing conservation plan must be submitted to the Federal
Mine Safety and Health Administration (MSHA) within 60 days
of the issuance of that citation. It also appears to be
undisputed that such a plan for a hearing conservation
program was not submitted for approval within 62 days of the
issuance of that citation.
Rushton argues however that the Secretary's regulations
do not in fact require the submission of a hearing
conservation plan upon a single showing of excessive noise
levels during a periodic noise survey but rather only upon a
subsequent showing of excessive noise levels during a
supplemental noise survey conducted as required by
30 C.F.R. § 70.509.
The Secreary's regulations provide in relevant part as
follows:

1419

§

70.507 - Initial Noise Exposure Survey

On or before June 30, 1971, each operator shall:
(a) Conduct, in accordance with this subpart,
a survey of the noise levels to which each miner in
the active workings of the mine is exposed during
his normal work shift.

* * *
§

70.508 - Periodic Noise Exposure Survey

(a) At intervals of the least every 6 months
after June 30, 1971, but in no case shall the
interval be less than 3 months, each operator shall
conduct, in accordance with this subpart, periodic
surveys of the noise levels to which each miner in
the active workings of the mine is exposed and
shall report and certify the results of such
surveys to the Mine Safety and Health
Administration, and the Department of Health and
Hu~an Services.

* * *
§ 70.509 - Supplemental Noise Exposure Survey; Reports
and Certification

(a) Where the certified results of an initial
noise exposure survey conducted in accordance with
§ 70.507, or a periodic noise exposure survey
conducted in accordance with § 70.508, show that
any miner in the active workings of the mine is
exposed to a noise level in excess of the
permissible noise level prescribed in Table I, the
operator shall conduct a supplemental noise
exposure survey with respect to each miner whose
noise exposure exceeds this standard. This survey
shall be conducted within 15 days following
notification to the operator by the Mine Safety and
Health Administration to conduct such survey.

* * *
; 70.510 - Violation of Noise Standard; Notice of
Violation; Action Required By Operator
(a) Where the results of a supplemental noise
exposure survey conducted in accordance with §
70.5Li9 show that any miner in the active workings
of the mine is exposed to noise levels which exceed

1420

the permissible noise levels prescribed in Table I,
the Secretary shall issue a notice.to the operator
that he is in violation of this subpart.
(b) Upon receipt of a Notice of Violation
issued pursuant to paragraph (a) of this section,
the operator shall:
(1) Institute promptly administrative
and/or engineering controls necessary to assure
compliance with the standard. Such controls may
include protective devices other than those devices
or systems which the Secretary or his authorized
representative finds to be hazardous in such mine.
(2) Within 60 days following the issuance
of any Notice of Violation of this subpart, submit
for approval to a joint Mine Safety and Health
Administration-Health and Human Services committee,
a plan for the administration of a continuing,
effective hearing conservation program to assure
compliance with this subpart.
The problem in this case arises from inartful
draftmanship of the regulations.
If subsection 70.510(b)(2)
is read separate from and independent of the other provisions
in the section it is clear that there was a violation as
charged since it is undisputed that no hearing conservation
plan was submitted within the 60 day period established by
that regulation.
Indeed unless subsection (b)(2) is read in such a
separate and independent manner it is in irreconcilable
conflict and becomes nonsensical.
It is of course a basic
rule of construction that the interpretation that produces
the greatest harmony and the least inconsistency ought to
prevail.
Sutherland Stat Const§ 46.05 (4th Ed.)
Subsection 70.510(b)(2) must therefore be read separate
and independent of the remainder of the section.
It is in
itself unambiguous in requiring the submission of a hearing
conservation plan "within 60 days following the issuance of
any Notice of Violation of this suboart" (Emphasis added).
This interpretation is of course also consistent with that
taken by the Secretary in this case and in her Policy Manual.
Under the circumstances the Motion for Summary Decision
must be denied. The operator has not shown as a matter of
law that it is entitled to such a decision.
Commission
Rule 64.
Accordingly this case along with its related civil
penalty proceeding (Docket No. PENN 89-197) will be set for
hearing on the merits. While the Secretary has not filed a
Motion for Summary Decision in this case it would appear,

1421

based upon the undisputed evidence, that a violation of the
cited standar~ did in fact exist and that such a Motion would
be granted concerning the existence at the violation.
A
hearing would nevertheless be necessary on the remaining
issue of whether the violation was "significant and
substantial".
In addition, issues under section llO(i) of
the Act must be addressed in determining the appropriate
penalty to be assessed in the related civil penalty

1

proceeding~

i

If

:

;

I

l/

Gary Mel· ck
Administ ative
(703)
-6261

Judge

Distribution:
Joseph A. Yuhas, Esq., Rushton Mining
Ebensburg, PA 15931 (Certified Mail)

ompany, P.O. Box 367,

Anita D. Eve, Esq., Office of the Solicitor, U.S. Department
of Labor, 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
nt

1422

»U. S.GOVERNl!IENT PRINTING Off!CE:1989-241-155:04758